Florez v. Sargeant

917 P.2d 250, 185 Ariz. 521, 216 Ariz. Adv. Rep. 116, 1996 Ariz. LEXIS 59

• Court: Arizona Supreme Court
• Decided: May 16, 1996
• Docket: CV-94-0454-PR, CV-94-0495-PR
• Status: Published

Opinions

OPINION

MARTONE, Justice.

These are tort actions consolidated for argument and opinion in which the only issue is whether they are barred by the statute of limitations. We conclude that they are.

I. Florez

Gomez, now 30 years old, claims that 18 years ago when he was about 12, Florez, then a priest, molested him. This was between 1978 and 1980. Gomez then led a nomadic life as a stripper and prostitute. Twelve years later, in 1990, he claims to have remembered these incidents and reported the abuse to a priest in late 1990, who then informed the Diocese of Phoenix. Gomez Affidavit at 4. On December 21, 1990, Gomez was interviewed by Diocesan lawyer, Ernest Calderon. Gomez said that his own lawyer, Kenneth Buford, consented to the interview without his presence. At that interview, Gomez said:

A lot of people ask you this one question. It may be floating through your mind as well. You ask me why did you take so long to come up and say something else. Well I’ll tell you this. I couldn’t deal with it. I didn’t have no one to turn to. I wasn’t ready to come up and talk about it, now I am. Now I’m able to deal with it.

Transcript of Gomez interview at 11 (emphasis added).

On May 17, 1991, Calderon wrote to Gomez and his lawyer, Kenneth Buford, indicating that after investigation, the Diocese had concluded that Gomez’s claim was without merit. He also informed Gomez of the two year statute of limitations under A.R.S. § 12-542 and that it was the position of the Diocese that the statute had run. On June 27, 1991, Gomez’s new lawyer, Craig Zirbel, wrote Calderon that his office was investigating the matter and reviewing the statute of limitations issue. Mr. Zirbel indicated that Gomez had also retained a Minnesota lawyer, Jeff Anderson, who specialized in sexual abuse eases against priests.

Gomez filed an action against Florez on June 30, 1993. Gomez moved for summary judgment on the statute of limitations defense arguing that it was tolled because (1) he was of unsound mind within the meaning of A.R.S. § 12-502, (2) he was under duress, (3) his memory was repressed, and (4) he did not connect the sexual abuse to his injuries until within two years of filing the action. Florez filed a cross-motion for summary judgment on the statute of limitations defense. Concluding that there was an issue of fact, the trial judge denied both motions. Florez filed a petition for special action, but the court of appeals declined jurisdiction. Believing that this was one of those rare cases that justified extraordinary relief, we granted Florez’s petition for review.

In support of his motion for summary judgment, Gomez submitted the affidavits of two experts indicating that he suffered from post-traumatic stress disorder, depression, sexual identity problems, and other problems indicating an unsound mind.

II. Duncan

Melissa Moonshadow was bom in 1955. She alleges that her father abused her from the age of 6 until the age of 17. The abuse alleged is of the most perverse and criminal sort. Among other things, she claims that he raped her, kicked her, mutilated her, and even penetrated her with various physical objects. She claims that he threatened her with injury or death, if she told of the abuse. The last time her father physically abused her was in June of 1989.

On July 16, 1993, Moonshadow filed this action. Duncan, Moonshadow’s father, moved for summary judgment arguing that the action was barred by the two year statute of limitations under A.R.S. § 12-542. Moon-shadow responded with an affidavit from her counsellor that she suffered from post-traumatic stress disorder, which prevented her from confronting her father through litigation. The counsellor, however, admitted at her deposition that Moonshadow was always capable of managing her own personal affairs from the time she reached her majority, was fully aware of the fact that her father sexually assaulted her as a child, and discussed with her in October of 1989 the possibility of joining her sister in a civil action against her father. The trial court granted Duncan’s motion for summary judgment, but then granted Moonshadow’s motion to reconsider, not because he found evidence of unsound mind, but because he thought the doctrine of equitable estoppel would prevent the use of the statute of limitations as a defense under these circumstances. Duncan then filed a petition for special action in the court of appeals, which declined jurisdiction. Believing that this case ought to be considered with the Florez case, we granted review.

III. Analysis

We acknowledge that special action relief from the denial of summary judgment is almost always inappropriate. But we also acknowledge that in the rare extraordinary case, special action relief may be the only way to avoid the very harms a particular defense was intended to prevent. Because this is one of those eases, we granted review.

It is undisputed on this record that, unless tolled, the statutes of limitations have expired. Gomez’s injuries occurred when he was under 18. The two year statute of limitations under § 12-542 was tolled during his minority under § 12-502(A) until he turned 18 in 1983. Thus, unless further tolled for some reason, the statute of limitations expired in 1985, some 8 years before he filed his action. Similarly, the bulk of Moonsha-dow’s claim relates to events that occurred before she was eighteen. The two year statute was tolled until 1973, and those claims would have expired in 1975. She brought her action in 1993, 18 years later. Some of her claims relate to matters alleged to have occurred as late as 1989, but this is still more than two years before she filed her action. Thus, like Gomez, unless there is some doctrine under which tolling occurred, her claims are barred.

Both Gomez and Moonshadow argue that their psychological disorders, particularly post-traumatic stress disorder, operated to prevent them from bringing their actions in time. The legislature has specifically addressed the role of the mind on the tolling of the statute of limitations. A.R.S. § 12-502(A) provides as follows:

if a person entitled to bring an action ... is at the time the cause of action accrues ... of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action.

The section heading refers to unsound mind as “insanity.” Although section headings are not law, A.R.S. § 1-212, they can help to resolve ambiguities. Garrison v. Luke, 52 Ariz. 50, 56, 78 P.2d 1120, 1123 (1938); Arizona Found. for Neurology & Psych, v. Sienerth, 13 Ariz.App. 472, 475, 477 P.2d 758, 761 (1970); see also Fleming v. Black Warrior Copper Co., 15 Ariz. 1, 8, 136 P. 273, 275 (1913) (demurrer to complaint alleging “Knox was insane” overruled because that was an allegation of unsound mind). While we have never expressly addressed the definition of “unsound mind” within the meaning of the statute, our cases refer to it as insanity. Western Coal and Min. Co. v. Hilvert, 63 Ariz. 171, 183, 160 P.2d 331, 336 (1945). Indeed, this very term, we described the disability for “unsound mind” under § 12-502(A) as one for “incompetents” and “persons who are insane.” Vega v. Morris, 184 Ariz. 461, 463-64, 910 P.2d 6, 8-9 (1996).

The court of appeals, however, has squarely addressed the question. Allen v. Powell’s Int'l, Inc., 21 Ariz.App. 269, 270, 518 P.2d 588, 589 (1974). In that case, a person injured in an automobile accident brought his claim more than two years after it accrued. The defendant moved for summary judgment. The plaintiff claimed that the statute tolled because he was of unsound mind as a result of the accident. He complained of depression and was concerned about his emotional condition. But he also went to graduate school, and resumed his work as a teacher. He continued to function as a teacher and carried out his regular day-to-day personal and business affairs, notwithstanding his concern about his emotional condition. The court of appeals affirmed the grant of summary judgment. It concluded that “a person of ‘unsound mind,’ as used in this setting, has been interpreted to mean that such a person is unable to manage his affairs or to understand his legal rights or liabilities.” Id. at 270, 518 P.2d at 589. Division Two followed the Allen case in Nelson v. Nelson, 137 Ariz. 213, 215-16, 669 P.2d 990, 992-93 (App.1983). Indeed, Division Two understood this to be “incompetency.” Id.

We agree with both divisions of our court of appeals. The focus of the unsound mind inquiry is on a plaintiffs ability to manage his or her ordinary daily affairs. It does not focus on the plaintiff’s ability to pursue the subject matter of the litigation at issue. This is consistent with cases elsewhere. See, e.g., Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899 (Tenn.Ct.App.1992); Hildebrand v. Hildebrand, 736 F.Supp. 1512 (S.D.Ind. 1990); O’Neal v. Division of Family Services, 821 P.2d 1139 (Utah 1991).

Neither Gomez nor Moonshadow claimed to be insane or incompetent. Instead, they argue that their post-traumatic stress disorder is sufficient to toll the statute of limitations.

Post-traumatic stress disorder is characterized by the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM IV) as an anxiety disorder where the victim reexperiences “an extremely traumatic event accompanied by symptoms of increased arousal and avoidance of stimuli associated with the trauma.” DSM IV at 393. The traumatic event must involve “actual or threatened death or serious injury, or a threat to the physical integrity of self or others,” and the person must experience “intense fear, helplessness, or horror.” Id. at 427-28. Post-traumatic stress disorder symptoms are experienced in varying degrees and for varying lengths of time by different people. Arguably, the impairment caused by post-traumatic stress disorder could be severe enough so that a person could not carry out his or her normal day-today activities. But simply attaching the post-traumatic stress disorder label to a person’s symptoms is insufficient to satisfy the Allen definition of unsound mind.

States vary widely in their approach to the effect of post-traumatic stress disorder on the tolling of statutes of limitations. In nonsexual abuse cases, it is generally found to be insufficient. See McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543, 450 N.Y.S.2d 457, 435 N.E.2d 1072 (1982) (car accident); In re Kindle, 509 N.W.2d 278 (S.D.1993) (action against public entity for failing to protect her from an estranged husband); In re Lattanzi, 61 Ohio Misc.2d 546, 580 N.E.2d 541 (Ohio Ct. of C1.1990) (untimely filed reparations application). Many states have concluded that post-traumatic stress disorder is not incompetency for purposes of their statutes of limitations. See, e.g., Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 905 (Tenn.Ct.App.1992) (post-traumatic stress disorder did not constitute “unsound mind” which is the incapability of attending to any business or taking care of oneself); Doe v. R.D., 308 S.C. 139, 417 S.E.2d 541, 543 (1992) (plaintiff knew of sexual assault but did not realize the extent of his injuries until diagnosed with post-traumatic stress disorder).

To our knowledge, no state has found that a diagnosis of post-traumatie stress disorder alone, is sufficient to constitute insanity or unsound mind within the meaning of the relevant statute. Some states have, however, found that the disabling effects of child sexual abuse may constitute incompeteney sufficient to toll the statute. See Jones v. Jones, 242 N.J.Super. 195, 576 A.2d 316 (App.Div. 1990); Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990); Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (1990).

Child sexual abuse cases present very difficult problems because of the competing interests at stake. The acts alleged are awful. They would arouse the righteous indignation of any sensible person. On the other hand, statutes of limitations are designed to encourage plaintiffs to pursue claims diligently and to prevent the assertion of stale and fraudulent claims. We believe that the Allen test of unsound mind strikes the appropriate balance. If there is hard evidence that a person is simply incapable of carrying on the day-to-day affairs of human existence, then the statute is tolled. Otherwise it is not. These are empirical facts easily verifiable and more difficult to fabricate than a narrow claim of inability to bring the action. See Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695, 703 (1995) (quoting Report of the Council on Scientific Affairs, American Medical Association, Memories of Childhood Abuse, CSA Report 5-A-94, recommending a policy statement that the AMA considers recovery of memories of childhood sexual abuse to “produce results of uncertain authenticity”).

We therefore apply the Allen test for unsound mind to each of these two cases. Gomez has led an unconventional life style. But he has been able to work, maintain a bank account, and take care of himself. He reported the abuse to a priest in late 1990, consulted with a lawyer, and admitted on December 21,1990, that he was ready to talk about it and was “able to deal with it.” In June of 1991, more than two years before he filed his action, he had a new lawyer who was investigating his claim as well as the applicable statute of limitations. It is thus absolutely undisputed that more than two years before he filed his civil complaint, Gomez was not of “unsound mind.”

Moonshadow worked at Arizona State University full time and was considered very competent at her job. She also went to school part-time. Her therapist admitted that she could function on a day-to-day basis, could support herself and that she understood the nature of her legal rights. Her therapist acknowledged that in October 1989, Moonshadow discussed joining her sister in an action against their father. In November 1989, she discussed the action further, stating that her sister could not find a lawyer. In June of 1991, Moonshadow told her therapist that she planned to file a civil action. Moonshadow’s testimony about her father’s abuse is extraordinary, but none of it related to her ability, to function on a daily basis and carry out her normal activities. No evidence suggested Moonshadow was of “unsound mind” within the meaning of Allen.

IV. Expert Affidavits on Summary Judgment

The dissent believes that the affidavits of Gomez’ and Moonshadow’s treating psychologists are sufficient evidence of “unsound mind” to create a jury issue. But affidavits that only set forth ultimate facts or conclusions of law can neither support nor defeat a motion for summary judgment. Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir.1985) 10A (citing Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983); see Lujan v. National Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990) (“The object of [Rule 56(e) ] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.”). An expert affidavit opposing a motion for summary judgment must set forth “specific facts” to support an opinion. Rule 56(e), Ariz.R.Civ.P. (adverse party’s affidavit “must set forth specific facts showing that there is a genuine issue for trial”); Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1057 (7th Cir.1994) (“Self-serving assertions without factual support in the record will not defeat a motion for summary judgment.”); Jackson v. Anchor Packing Co., 994 F.2d 1295, 1304 (8th Cir.1993) (“Conclusory affidavits, even from expert witnesses, do not provide a basis upon which to deny a motion for summary judgment.”); United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir.1981) (“in the context of a motion for summary judgment, an expert must back up his opinion with specific facts”).

There is more to admissibility than Rule 704, Ariz.R.Evid. The affidavits here are not objectionable because they embrace an ultimate issue, but because they are without relevant foundation. At trial, a party is entitled to the facts that support an opinion. Rule 705, Ariz.R.Evid. And the court is “expected to exercise its discretion so as to prevent the admission of such opinions if there is any serious question concerning the admissibility, under rule 703 or otherwise, of the underlying facts or data.” Ariz.R.Evid. art. VII, Introductory Note: Problems of Opinion Testimony.

The same, of course, is true on summary judgment. Rule 56(e), Ariz.R.Civ.P., requires specific facts. The facts offered in support of the opinion evidence here are simply not relevant or material to the issue of unsound mind under the Allen test.

The opinions of plaintiffs’ experts misconstrue the true meaning of “unsound mind.” For example, Gomez submitted the affidavits of two psychologists, Francis Enos and Stuart Litvak. Enos’s affidavit merely states that, in his professional opinion, Gomez has been of “unsound mind” within the meaning of Allen since the sexual abuse. Enos refers to no facts to support his opinion. He does attach his report, but it too fails to reveal any facts to support his opinion. The contrary is true. Enos’s report documents that Gomez was able to manage his daily affairs. For example, he was able to save enough money on his own for a trip to Europe. Enos Psychological Report at 6; see Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990) (affidavits that are internally inconsistent are insufficient to withstand a motion for summary judgment).

Doctor Litvak's affidavit is also insufficient. Litvak claims Gomez is of “unsound mind,” but the facts he lists do not support such a legal conclusion. He says Gomez is of “unsound mind” because he dropped out of high school, has never been able to hold gainful employment for a substantial period of time, has never been able to maintain a place of residence for a substantial length of time, squanders his money, and suffers from depression and stress. Litvak Affidavit at 5-6. If these facts, and others listed in Lit-vak’s affidavit, were sufficient to support a legal finding of “unsound mind,” then all those who have less than satisfactory lives would be of “unsound mind.”

Finally, we consider the affidavit submitted by Moonshadow’s expert, Susan Lynne Morrow. She states that the symptoms of post-traumatic stress disorder made Moonshadow “dysfunctional and depressed, thereby making it very difficult to conduct her life ‘normally’.” Morrow Affidavit at 3. This is conclusory, and without value within the meaning of Rule 56(e), Ariz.R.Civ.P.

If we were to accept the affidavits submitted by plaintiffs’ experts as sufficient to raise a triable issue of fact, then a motion for summary judgment would always be defeated by the use of an expert affidavit. The affidavits confuse the inability to bring an action with the inability to perform the basic functions of human existence. An inability to bring a lawsuit is no evidence of unsound mind. Under Orme School, a trial judge must evaluate the evidence in ruling on a motion for summary judgment and apply the same standard used for a directed verdict. 166 Ariz. at 309, 802 P.2d at 1008. Affidavits that contain inadmissible evidence, are internally inconsistent, or contradict the affiant’s sworn testimony, and similar items of evidence, may create a scintilla or doubt, but “still be insufficient to withstand a motion for summary judgment.” Id. That is what we have here.

V. Miscellaneous Arguments

In addition to the question of unsound mind, other tolling theories were raised in the trial court. Gomez urged the application of a delayed discovery rule, duress, fraud, and equity. Moonshadow argued equity. The claims of duress and fraud are not sufficiently meritorious for discussion. Gomez relied upon Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (App.1993) for his delayed discovery argument. And the trial judge in Duncan relied upon that same case to conclude there was room for equity here.

Ulibarri brought a tort action against her physician, which appeared time-barred on the face of the complaint. In response to a defense motion for summary judgment, the plaintiff claimed that the defendant had engaged in sexual conduct with her “while she was under hypnosis and that he had given her post-hypnotic suggestions that she would not remember his conduct.” Id. at 156, 871 P.2d at 703. The trial court granted summary judgment, but the court of appeals reversed. Drawing on cases from other states, and merging such doctrines as equity,¹ a “delayed discovery rule,”² and concealment,³ it ultimately held “that when the plaintiff presents evidence that the defendant concealed a cause of action thereby preventing the plaintiff from timely filing the claim, and when the defendant admits the actions underlying the claim thereby reducing the risk of staleness, the question of whether there is wrongful concealment capable of tolling the statute of limitations cannot be resolved by summary judgment.” Id. at 159, 871 P.2d at 706.

Ulibarri appears to be based upon an unprecedented amalgamation of a variety of different theories. But even if it is correctly decided, it has no application here. Ulibarri was a case in which the defendant’s hypnosis prevented the plaintiff from remembering the events within the statutory period. By their own admissions, Gomez and Moon-shadow knew the identity and conduct of their tortfeasors. Thus, no such equitable or delayed discovery considerations apply here. Both Gomez and Moonshadow knew or should have known of the events giving rise to their claims long before the statute expired. See Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 533 N.W.2d 780, 785 (1995) (statute of limitations is not tolled by discovery rule where plaintiff knew of all of the elements of her underlying claim well before the limitations period had expired); ABC v. Archdiocese of St. Paul, 513 N.W.2d 482, 486 (Minn.Ct.App.1994) (statute of limitations is not tolled where victim is aware or should have known of the wrongful conduct and harm incurred); Sanchez v. Archdiocese of San Antonio, 873 S.W.2d 87, 91 (Tx.Ct. App.1994) (same).

Nor does Henry v. Industrial Comm., 157 Ariz. 67, 754 P.2d 1342 (1988), help these plaintiffs. In that case, a policeman was traumatized on the job in 1960. But the relationship between his symptoms and post-traumatic stress disorder was not well developed and did not even appear in psychiatric literature until the 1980s. This court refused “to hold a claimant to the knowledge that his job has caused a serious medical condition based on post-traumatic stress syndrome when the condition was not diagnosable at the time he first sought treatment.” Id. at 70, 754 P.2d at 1345. In short, the policeman could not have known within the statutory period that the traumatic event had caused his problems. In contrast, both Gomez and Moonshadow knew that their abusers were the cause of their problems. The effects of pedophilia, rape, and aggravated assault were well developed when they allegedly occurred in these cases. They were not symptoms of some, as yet, undiscovered disease.

V. Conclusion

The legislature enacted statutes of limitations in order to protect against the nightmare of stale claims. It has squarely addressed the categories of disabilities that will toll the statute in A.R.S. § 12-502. It is not for us to enlarge the category of unsound mind through interstitial judicial lawmaking. These are very delicate policy decisions that properly belong to the legislative branch of government. If the legislature wants to broaden the category of disability to toll the statute of limitations in cases such as these, it is, of course, free to do so. But the weighing, balancing, and policy making that go into such an enterprise are properly legislative, not judicial, tasks.

We therefore reverse the orders in these cases that denied defense motions for summary judgment, and remand these cases to the superior court for entry of judgment in favor of the defendants and against the plaintiffs on their claims for relief.

MOELLER, J., and ROBERT J. CORCORAN, J. (Retired), Concur.

1 . The court said, "[t]o allow the defendant to have the advantage of the statute of limitations if his hypnosis of the plaintiff created a mental impairment which rendered her unable to timely assert a legal right would be inequitable.” 178 Ariz. at 157, 871 P.2d at 704.

2 . The court said, ”[w]e conclude that the application of delayed discovery is sound when applied to the present facts.” 178 Ariz. at 158, 871 P.2d at 705.

3 . The court said, ”[t]he plaintiff has alleged that defendant improperly concealed her cause of action by hypnosis and post-hypnotic suggestion.” 178 Ariz. at 158, 871 P.2d at 705.