Dunford v. Tryhus

2009 ND 212, 776 N.W.2d 539, 2009 N.D. LEXIS 210, 2009 WL 4800576
CourtNorth Dakota Supreme Court
DecidedDecember 15, 2009
Docket20090178
StatusPublished
Cited by17 cases

This text of 2009 ND 212 (Dunford v. Tryhus) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunford v. Tryhus, 2009 ND 212, 776 N.W.2d 539, 2009 N.D. LEXIS 210, 2009 WL 4800576 (N.D. 2009).

Opinion

CROTHERS, Justice.

[¶ 1] Jeffrey Dunford appeals the district court’s summary judgment to Dr. Trueman Tryhus, Jr. We affirm, concluding the district court did not err in determining Dunford’s claim was barred by the statute of limitations.

I

[¶ 2] Tryhus practiced dentistry in Fargo from 1958 through 1993. Dunford was born in 1954 and became a patient of Tryhus in the mid-1960s. Dunford alleges Tryhus sexually abused him between 1965 and 1969.

[¶ 3] In 1988, Dunford asked a nonlaw-yer friend in the Fargo area for information regarding the statute of limitations on sexual abuse claims. Dunford was informed the statute of limitations was two years from the incident of abuse. In the early 1990s, Dunford sent a letter confronting Tryhus about the alleged abuse. The letter informed Tryhus of problems caused by the alleged abuse, and Tryhus acknowledged receiving the letter. At his deposition, Dunford claimed to have vividly remembered the alleged abuse since its occurrence.

[¶ 4] On March 24, 2006, Dunford met with Dr. Margaret Drew, a clinical psychologist from La Jolla, California. Dr. Drew diagnosed Dunford with post-traumatic stress disorder, but no further counseling was undertaken. Dunford commenced this action on February 28, 2008, and Tryhus moved for summary judgment on February 13, 2009, asserting Dunford’s claim was barred by the statute of limitations. Following a hearing, the district *541 court determined Dunford’s claim was time-barred and granted summary judgment to Tryhus. Dunford timely filed this appeal.

II

[¶ 5] The standard of review for summary judgment is well-established, and this Court has explained:

“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45. A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. On appeal, we view the evidence in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. Ruggles v. Sabe, 2003 ND 159, ¶ 2, 670 N.W.2d 356. We review a district court’s decision to grant summary judgment de novo on the entire record. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357.”

Witzke v. City of Bismarck, 2006 ND 160, ¶ 7, 718 N.W.2d 586.

A

[¶ 6] We explained the purpose and characteristics of statutes of limitations in Tarnavsky v. McKenzie County Grazing Ass’n:

“Statutes of limitation are designed to prevent plaintiffs from sleeping on their legal rights and bringing stale claims to the detriment of defendants. See Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 910-11 (N.D.1992). Statutes of limitations are a legal bar to a cause of action and begin to run when the underlying cause of action accrues. Abel v. Allen, 2002 ND 147, ¶ 10, 651 N.W.2d 635. The determination of when a plaintiffs cause of action has accrued is generally a question of fact, but if there is no dispute about the relevant facts, the determination is for the court. Id. at ¶ 11. A cause of action accrues when the right to commence the action comes into existence and can be brought in a court of law without being dismissed for failure to state a claim. Id. at ¶ 12. We have recognized statutes of limitation ordinarily began to run from the commission of the wrongful act giving rise to the cause of action, see BASF Corp. v. Sym-ington, 512 N.W.2d 692, 695 (N.D.1994), and ‘[a]n injury usually arises contemporaneously with the wrongful act causing the injury.’ Huber v. Oliver County, 529 N.W.2d 179,182 (N.D.1995) (quoting Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D.1990)).”

2003 ND 117, ¶ 9, 665 N.W.2d 18.

[¶ 7] A claim’s statute of limitations begins to run when the underlying cause of action accrues. Tamavsky, 2003 ND 117, ¶ 9, 665 N.W.2d 18. Claims of sexual abuse carry the same two-year statute of limitations as assault and battery claims. Peterson v. Huso, 552 N.W.2d 83, 84 (N.D.1996); N.D.C.C. § 28-01-18(1). “However, under Section 28-01-25, N.D.C.C., if a person who is entitled to bring an action is under eighteen years old when the cause of action accrues the period of minority is not part of the time limited for the commencement of the action, and the statutory limitations period can be extended for not more than one year from that person’s eighteenth birthday.” Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989). Absent another excep *542 tion, the statute of limitations required Dunford to commence this action no later than December 1975, two years after his nineteenth birthday.

B

[¶ 8] Dunford argues the district court erred in dismissing his case on statute of limitations grounds because he commenced this action within two years of discovering his injury. Dunford claims he did not discover his injury until he was diagnosed with post-traumatic stress disorder in March 2006. Citing the discovery rule, Dunford claims the commencement of his lawsuit in February 2008 was within the two-year statute of limitations for sexual abuse claims because his cause of action did not accrue until March 2006. For the purposes of this case, we assume without deciding that the discovery rule applies.

[¶ 9] We described the discovery rule in Wells v. First American Bank West:

“In Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989), this Court said that generally the statute of limitations begins to run from the commission of the wrongful act giving rise to the cause of action. We have also recognized, however, this rule is often harsh and unjust, which is why so many courts have adopted the discovery rule. Schanilec [v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 11, 599 N.W.2d 253]. ‘The discovery rule is meant to balance the need for prompt assertion of claims against the policy favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it.’ Id. (citing Buck v. Miles, [89 Hawai’i 244] 971 P.2d 717, 722 (1999)). See also MDU Resources Growp v. W.R. Grace and Co.,

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Cite This Page — Counsel Stack

Bluebook (online)
2009 ND 212, 776 N.W.2d 539, 2009 N.D. LEXIS 210, 2009 WL 4800576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunford-v-tryhus-nd-2009.