Kuch v. Catholic Bishop of Chicago

• Court: Appellate Court of Illinois
• Decided: May 30, 2006
• Docket: 1-05-1175 Rel
• Status: Published

Opinion

SECOND DIVISION MAY 30, 2006

No. 1-05-1175

FREDERICK H. KUCH, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) CATHOLIC BISHOP OF CHICAGO, a ) No. 04 L 3385 Corporation Sole, and CLARENCE TOPP ) a/k/a Clarence Von Topp, ) ) The Honorable Defendants-Appellees. ) Diane J. Larsen, ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

On March 24, 2004, the plaintiff, Frederick Kuch, sued the defendants, the Catholic Bishop of Chicago and Clarence Topp, to

recover damages for injuries he sustained when he was sexually

abused by Topp in 1960. On January 25, 2005, the trial court

dismissed the plaintiff's complaint as time-barred. The

plaintiff appeals that order, arguing that his complaint was

timely in light of amendments made in 2003 to the childhood

sexual abuse provisions of the Code of Civil Procedure (Code)

(735 ILCS 5/13-202.2 (West 2004)). For the reasons that follow,

we affirm the judgment of the trial court.

In his complaint, the plaintiff alleged that in 1960, Topp

was the choirmaster of the Little Singers of the Sacred Cross 1-05-1175

Choir of the Nativity of Our Lord Church. The Catholic Bishop

hired Topp for that position. The plaintiff, who was 12 years

old at that time, was a member of the choir. The plaintiff

alleged that the Topp sexually abused him during his involvement

with the choir.

The plaintiff indicated that, as a consequence of the abuse,

he has, and continues to suffer from, generalized anxiety

disorder, post-traumatic stress disorder, and avoidant

personality disorder with self-defeating personality traits. In

his initial complaint, he alleged that he did not become aware

that these injuries were a result of the sexual abuse until 2002.

Both defendants filed motions to dismiss the plaintiff's

complaint as untimely. The defendants argue that his claims were

time-barred in 1991 when a 12-year statute of repose took effect.

They also contend that the claims were barred by the two-year

statute of limitations for personal injuries, which would have

required the plaintiff to file his claim within two years of

reaching majority age.

In October 2004, the plaintiff moved for leave to file an

amended complaint. The amended complaint alleged the same

violations in the original complaint but also explained that

"[p]laintiff did not become aware until November of 2003 that his

injuries of ill-being *** and other injuries were caused by the

sexual abuse attack upon him by defendant Topp in 1960."

The defendants again moved to dismiss the plaintiff's

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complaint as time-barred. Attached to the plaintiff's response

to the defendants' motions was a letter from Dr. Ronald H.

Rottschafer, a clinical psychologist, that stated that the

plaintiff consulted him for treatment in November 2003 and at

that time, the plaintiff was not aware that his symptoms and

emotional injuries were the result of having been sexually

abused. In January 2005, the trial court granted the defendants'

motions to dismiss. The court held that the plaintiff's claims

were time-barred and it dismissed his complaint with prejudice.

In March 2005, the court denied the plaintiff's motion to vacate

or reconsider that order. This appeal followed.

The plaintiff argues that this court should apply the

statute of limitations found in section 13-202.2 of the Code as

amended in 2003. That section provides:

"Notwithstanding any other provision of

law, an action for damages for personal

injury based on childhood sexual abuse must

be commenced *** within 5 years of the date

the person abused discovers or through the

use of reasonable diligence should discover

both (i) that the act of childhood sexual

abuse occurred and (ii) that the injury was

caused by the childhood sexual abuse. The

fact that the person abused discovers or

through the use of reasonable diligence

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should discover that the act of childhood

sexual abuse occurred is not, by itself,

sufficient to start the discovery period

under this subsection (b). Knowledge of the

abuse does not constitute discovery of the

injury or the causal relationship between any

later-discovered injury and the abuse." 735

ILCS 5/13-202.2(b) (West 2004).

The plaintiff contends that his "substantive right to sue

pursuant to the new amended statute trumps *** the defendants'

so-called due process rights under a statute of limitations

and/or repose."

The defendants argue that the trial court properly dismissed

the plaintiff's action because it was already time-barred when

the legislature amended section 13-202.2 in 2003. The defendants

contend that the plaintiff's action was barred in 1991 when the

legislature amended that same section to provide for a 12-year

statute of repose for childhood sexual abuse cases. In 1991,

section 13-202.2(b) read:

"An action for damages for personal

be commenced within 2 years of the date the

person abused discovers or through the use of

reasonable diligence should discover that the

act of childhood sexual abuse occurred and

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that the injury was caused by the childhood

sexual abuse, but in no event may an action

for personal injury based on childhood sexual

abuse be commenced more than 12 years after

the date on which the person abused attains

the age of 18 years." Ill. Rev. Stat., 1990

Supp., ch. 110, par. 13-202.2(b) (eff.

January 1, 1991).

The defendants argue that "once the plaintiff's claim was time

barred, it was not and could not have been retroactively revived

by a 2003 amendment lengthening the limitations period for

childhood sexual abuse." The defendants also contend that the

plaintiff's claim was barred by the personal injury statute of

limitations, which would have required him to file a claim within

two years after reaching majority age.

The defendants moved to dismiss the plaintiff's complaint

pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-

619(a)(5) (West 2004)). A defendant is entitled to dismissal

under section 2-619(a)(5) if the "action was not commenced within

the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2004).

We review a trial court's dismissal of a plaintiff's complaint

de novo. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.

2d 248, 254, 807 N.E.2d 439 (2004).

In M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E.2d 335 (1997), the supreme court held that the 12-year statute of repose barred

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a tort action for sexual child abuse even though the statute was

not in effect when the abuse occurred and was repealed before the

action was filed. In that case, the plaintiffs were sexually

abused by their father from the age of four continuing through

high school. In 1994, when both plaintiffs were in their

forties, they filed a complaint against the defendant. The

plaintiffs alleged that the abuse caused them to repress the

memories of the abuse, prevented them from understanding the

impact of the assault, and impaired them so that they were

incapable of asserting their rights more promptly. They alleged

that they filed their suit within two years of discovering the

abuse and the injuries that it caused. M.E.H., 177 Ill. 2d at 210.

Following the defendant's motion to dismiss, the trial court

dismissed the plaintiffs' complaint, holding that the claim was

time-barred based on the 12-year statute of repose found in the

1991 version of section 13-202.2(b). M.E.H., 177 Ill. 2d at 212. The supreme court agreed. It explained that "[w]hen that statute

was enacted, the law provided that it governed actions pending on

its effective date, January 1, 1991, as well as actions commenced

on or after that date. [Citation.] Once the law took effect, it

effectively barred anyone over the age of 30 from bringing an

action for damages for personal injury based on childhood sexual

abuse." M.E.H., 177 Ill. 2d at 214.

Although the statute of repose was repealed in 1994, the

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supreme court held that the repeal did not alter the viability of

the plaintiffs' claims. The court explained that "once a statute

of limitations has expired, the defendant has a vested right to

invoke the bar of the limitations period as a defense to a cause

of action. That right cannot be taken away by the legislature

without offending the due process protections of our state's

constitution." M.E.H., 177 Ill. 2d at 214-15. Although that

case concerned a statute of repose, not a statute of limitations,

the court held that "there is no basis for applying a different

rule." M.E.H., 177 Ill. 2d at 215. The "repeal of the statutory

repose period could not operate to revive plaintiffs' claims. If

the claims were time-barred under the old law, they remained

time-barred even after the repose period was abolished by the

legislature." M.E.H., 177 Ill. 2d at 215.

In this case, if we assume that the plaintiff's claims were

still viable when the 1991 amendment took effect, that amendment

effectively barred the plaintiff, who was 43 in 1991, from

bringing an action for damages for personal injury based on the

childhood abuse. Although the amendment did not instantaneously

extinguish his cause of action, the plaintiff was required to

file his complaint within a reasonable time. The plaintiff did

not file his claim until 2004 -- 13 years after the statute of

repose went into effect. Waiting 13 years, one year longer than

the period of repose itself, was not a reasonable time period in

which to file a claim. See M.E.H., 177 Ill. 2d at 217 (the

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supreme court rejected the argument that a reasonable time period

should be measured by the statutory repose period and explained

"the repose period is 12 years, six times longer than the

applicable two-year limitations period. Where the repose period

is as long as it is here, using that period to gauge the

timeliness of subsequently filed litigation would be excessive

and unwarranted").

We hold that the plaintiff's claims were time-barred when he

did not file his claim within a reasonable time following the

effective date of the statute of repose. Because the plaintiff's

claims were time-barred under the statute of repose, they could

not be revived by the 2003 amendments. These claims, therefore,

were properly dismissed. See M.E.H., 177 Ill. 2d at 218 (a defense based on the expiration of a statute of repose is a

vested right protected by the constitution and beyond legislative

interference and cannot be ignored "simply because the

legislature has subsequently changed its position").

Although we chose to address the plaintiff's arguments under

the 1991 amendments, we do not hold that the plaintiff had a

viable claim when the amendments when into effect. See Clay v. Kuhl, 189 Ill. 2d 603, 727 N.E.2d 217 (2000). In Clay, the

plaintiff sued for damages she sustained when she was sexually

abused as a child. Because the plaintiff was a minor when the

abuse occurred, she had only two years, after reaching the age of

majority, to file her claim unless the common law discovery rule

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applied. "Under the discovery rule, a party's cause of action

accrues when the party knows or reasonably should know of an

injury and that the injury was wrongfully caused." Clay, 189

Ill. 2d at 608.

In Clay, the plaintiff did not contend that she repressed

memories of her childhood sexual abuse or that she was not aware

that the misconduct was harmful. She instead alleged that she

did not discover the full extent of the injuries caused by the

abuse until years later. The supreme court dismissed the

plaintiff's complaint as untimely, holding that the plaintiff was

required to file her claim within two years of reaching the age

of majority. The plaintiff's failure to learn the full extent of

the injuries caused by the defendant's acts did not toll the

statute of limitations where she was aware of the abuse and that

the abuse was harmful. Clay, 189 Ill. 2d at 613. In this case, the plaintiff does not allege that he

repressed memories of the abuse or that he did not understand

that the abuse he sustained was harmful. Like the plaintiff in

Clay, he instead alleged that he did not understand that the injuries he suffered as an adult were caused by the abuse.

Because the plaintiff's failure to learn the full extent of his

injuries did not toll the statute of limitations, the plaintiff

was required to file his claim within two years of reaching the

age of majority. See Ill. Rev. Stat. 1961, ch. 83, par. 15.

Because he failed to file a timely claim, we affirm the trial

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court's dismissal of his complaint.

For the reasons stated, we affirm the judgment of the trial

court.

Affirmed.

WOLFSON and HALL, JJ., concur.