Shippen v. Parrott

506 N.W.2d 82, 1993 S.D. LEXIS 113, 1993 WL 322845

• Court: South Dakota Supreme Court
• Decided: August 25, 1993
• Docket: 17732
• Status: Published

Opinions

HENDERSON, Justice (on reassignment).

PROCEDURAL HISTORY/ISSUES

On January 3, 1989, Daniel Shippen (Ship-pen) commenced this action against Sherman Parrott (Parrott) advancing three claims: intentional sexual assault and battery, interference with Shippen’s contractual (marital) relationship, and intentional infliction of emotional distress (IIED). Both parties waived trial by jury, and following a May, 1991 trial, the trial court rejected the interference with a contractual relationship claim. However, Shippen prevailed on the remaining claims and received compensatory damages for past and future medical and psychiatric costs, plus pain and suffering, in the amount of $75,-846.88. Additionally, the trial court awarded punitive damages totaling $113,000.00. Par-rott challenges these awards based upon the following issues:

I. Was there sufficient evidence to prove a continuous tort and toll the statute of limitations?

II. Did the trial court err in applying the discovery rule in tolling the statute of limitations?

III. Were alleged acts occurring more than two years before the commencement of this action barred by the statute of limitations?

IV. Did Shippen sustain his burden of proving discovery within two years of this action?

V. Does SDCL 15-2-22(2) toll the statute of limitations?

VI. Was the evidence sufficient to sustain the judgment and award?

VII. Did the contacts between Shippen and Parrott during the two years pri- or to commencement of this action constitute intentional assault and battery?

VIII. Did the trial court err in allowing two witnesses to testify concerning the truth and veracity of Shippen?

We have reduced the treatment of these eight issues to five separate discussions and holdings.

We affirm in part and reverse and remand in part.

FACTS

During infancy, Shippen’s parents divorced. By age five, his mother had remarried a banker, who died approximately one year later.

Enter Parrott, a man who had worked at the bank with Shippen’s stepfather. Parrott and Shippen’s mother developed a relationship which lasted for a considerable length of time and eventually became sexual. Par-rott’s interest quickly spread to Shippen and his siblings. Mother further encouraged Shippen and his twin brother, David, to associate with Parrott, believing him to provide a healthy male adult role model for the boys.

Parrott resided in the basement of the house he shared with his mother, an elderly woman who was bedridden and hard of hearing. His basement living quarters included a pool table, pizza oven, popcorn popper, clown collection and waterbed. In 1975, when Shippen was eleven years old, he began spending the night at Parrott’s home, at Par-rott’s request. Young Shippen, intrigued by the waterbed, asked to sleep in it. This necessitated that he and Parrott, nearly 33 years his senior, sleep together. On one such sleepover, Parrott fondled Shippen’s penis. As these visits continued, the sexual conduct escalated to Parrott performing oral sex upon him. Shippen did, however, successfully resist Parrott’s attempts at anal intercourse. Similar sexual encounters occurred when Shippen’s twin stayed overnight with Parrott.

As Parrott continued his relationship with the mother, and the boys, he provided the boys with money, clothes and gifts, including securing the return of a repossessed car and replenishing their checking accounts when the balance was low. At one point, he gave Shippen a car, with Parrott remaining on the title as lienholder.

Conversely, Shippen’s high school academic performance was sub-par. His aggressive behavior not only led to fights, but on one occasion at age 16, he took a loaded pistol to Parrott’s home with the intent of killing him. Shippen was by no means monogamous, engaging in sexual relationships with a male classmate and his future wife, Juli, yet continuing his encounters with Par-rott. In 1984, when Juli became pregnant, Shippen married her, in part, to escape Par-rott’s advances. Although no sexual relations between the men occurred during the marriage, they frequently communicated with one another. Occasionally, Parrott sent gifts and money to the couple.

In 1986, following marital problems and Shippen’s increased involvement with the gay lifestyle in Minneapolis and other homosexual relationships, he and Juli separated. They divorced two years later. Despite six months of individual and group counseling during his separation, Shippen was unable to reconcile his conflicting homosexual and heterosexual tendencies.

One night in May, 1987, Shippen permitted Parrott to stay at his home. Shippen awoke during the night to find Parrott fondling his genitals. Parrott also attempted to perform oral sex on him, but Shippen repulsed the attempt. Parrott again visited Shippen the following month. Upon entering the home, Parrott pushed Shippen to the couch, attempted to kiss him and place his hand inside Shippen’s pants, and tried to force oral sex on Shippen. Once more, Shippen successfully fought off Parrott’s advances.

Since 1986, Shippen has continued therapy for mental disorders arising from his sexual conflicts, but has resigned himself to a homosexual lifestyle in Colorado. Meanwhile, despite family requests to leave them alone, Parrott began corresponding with Shippen’s stepbrother, John, when John served as a soldier in Operation Desert Storm.

Following proceedings before the trial court, the trial court applied the discovery rule and continuing tort theories of law and held Parrott hable for continuous sexual assaults and batteries and intentional infliction of emotional distress (IIED) upon Shippen dating back to 1976.

DECISION

1. Continuing III Effects Are Not Continuing Torts.

Alleged continual ill effects are not actionable under a continuing tort theory. Brishky v. State, 479 N.W.2d 489, 492 (S.D.1991); Moeller v. State, 474 N.W.2d 728 (S.D.1991). Trial court’s conclusions of law hold that Shippen suffered from “post traumatic stress disorder,” in conjunction with the “coping mechanisms” of “repression and suppression.” These were the continuing ill effects of Parrott’s actions and do not constitute a basis for recovery in tort under settled law. In effect, trial court disregarded the above 1991 South Dakota Supreme Court decisions. We may review these conclusions of law de novo. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987).

Although a continuing relationship existed between the two men from 1984 to 1987, there were no sexual contacts. To find that this continuing, three-to four-year non-tortious relationship is sufficient to link two series of intentionally tortious acts would serve only to defeat applicable statutes of limitations. Certainly, Parrott’s despicable conduct provides a strong temptation to permit recovery under this tort theory, however, we have no intention of reversing or overruling settled law. Rather, the trial court’s conclusions are mistakes of law.

2. Discovery Rule Not Recognized.

In the well known South Dakota ease of Alberts v. Giebink, 299 N.W.2d 454, 455 (S.D.1980), Alberts advocated that this Court should adopt the discovery rule, namely that an applicable statute of limitations does not begin to run until the harm is discovered rather than when the harm occurred. We refused to do so and accordingly noted: “The South Dakota Legislature, however, has specifically rejected the discovery rule.” We further expressed therein:

The legislature has thus acknowledged and rejected a discovery rule in South Dakota. We cannot abridge that intent.

Id. at 456.

Furthermore, as recent as 1990, in Kurylas, Inc. v. Brodsky, 452 N.W.2d 111 (S.D.1990), this Court again declined to follow the discovery rule. At page 114 thereof, this Court expressed:

Here, as in Schoenrock, Kurylas urges the court to follow a date of damage or injury rule to determine when the statute begins to run for attorney malpractice actions. This type of theory is also referred to as the discovery rule. South Dakota has chosen not to follow the discovery or date of damage rule. The legislature has specifically set up an “occurrence” rule. This court has previously stated:

The general rule is that in the absence of an attorney’s fraudulent concealment of his negligent advice, the statute of limitations on a claim of attorney malpractice begins to run at the time of the alleged negligence and not from the time when the negligence is discovered or the consequential damages are imposed. (Emphasis added.)

In Conclusion of Law # 12, the trial court found that two legal theories exist, within the facts of the case, which exempt this case from being time-barred by the statute of limitations. “These two theories include the application of the discovery rule and the theory of continuing tort.”

Although not formally concluding (as a matter of law) that late discovery spawned a tort, it is evident that the trial court would inferentially hold that “repression or post-traumatic stress disorder” caused Shippen not to discover a tort upon him. As our Legislature has yet to permit such an action, the settled law cited above holds that the trial court’s conclusion is also a mistake of law. Permann, supra.

3.Statutes of Limitations Applicable.

With the discovery rule and continuous tort theories extinguished, we must then look to the applicable statutes of limitations. As the disabilities of minority age and alleged mental illness coexisted until Shippen’s eighteenth birthday on July 21, 1982, SDCL 15-2-22 permits a tolling of the statute for a maximum of five years, or until July 21,1987. However, claims which arose after the eighteenth birthday, but during the mental illness, must be challenged within five years of the tort or within one year after the disability ceases, whichever is earlier. According to the trial court, the suppression and repression had been sufficiently lifted by March 1987. Thus, Shippen had until March of 1988 to take action against Parrott for those torts occurring during the previous five years of his claimed mental illness. This action did not commence until January 3, 1989. Therefore, we need not consider the accuracy and validity of the applications of these extensions, as the suit was filed beyond their respective statutory periods.

Although the circumstances presented by Parrott’s actions are egregious, his “defense predicated upon the statute of limitations is meritorious and is not to be disregarded with disfavor by this court.” Merkwan v. Leckey, 876 N.W.2d 52, 54 (S.D.1985). Under 15-2-15(1), only those assaults and batteries occurring two years prior to filing are actionable. A three-year limitations period is possible for IIED. SDCL 15-2-14(3). Sexual contacts between Parrott and Shippen ceased in 1984, well outside the applicable limitations period, and did not resume until 1987. Hence, no claims occurring prior to January 3, 1986 under an IIED theory— January 3, 1987 for assault and battery — are actionable, i.e., only those sexual contacts occurring during May and June of 1987 fall inside the statutory period.

4. Expert Testimony Properly Admitted.

A “witness may not testify as to another witness’ credibility or truth-telling capacity because such testimony would invade the exclusive province of the jury to determine the credibility of a witness.” State v. Floody, 481 N.W.2d 242, 249 (S.D.1992). Applying criminal law authorities, Parrott asserts that expert testimony improperly bolstered Shippen’s claims of child abuse and invaded the province of the jury in this civil action. Granted, counsel for Ship-pen prefaced several questions with phrases similar to: “When Parrott sexually abused Shippen ...” Although such remarks are improper and assume the ultimate issue, we note that neither expert was asked if Parrott had sexually abused Shippen and neither improperly bolstered Shippen’s testimony. Thus, we find Parrott’s arguments to be without merit.

We have previously held that in an action tried to the trial court, there exists a presumption that the trial court will disregard inadmissible evidence, which includes improperly admitted testimony. In re R.S.S., 474 N.W.2d 743, 750 (S.D.1991); People in Interest of M.W., 374 N.W.2d 889, 893 (S.D.1985); Sulzbach v. Town of Jefferson, 83 5.D. 156, 159, 155 N.W.2d 921, 923 (1968). Furthermore, the trial court has broad discretion concerning the qualification of expert testimony. The trial court’s decision as to such matters will not be reversed on appeal absent a clear showing of abuse of discretion. Stormo v. Strong, 469 N.W.2d 816, 822 (S.D.1991); Zepp v. Hofman, 444 N.W.2d 28, 31 (S.D.1989). As the parties waived a jury trial, we find the trial court equipped to sift through any excess or perceived inadmissible evidence. See United States v. DeSisto, 329 F.2d 929 (2d Cir.1964), cert. denied, 2171 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964); R.S.S. at 750 (In a trial to the court in which admissible evidence supports the findings, additional evidence, though inadmissible, is nonprejudicial).

Furthermore, the bulk of the alleged improper testimony concerned matters beyond the two-year statutory period, not the causes of action occurring during 1987. Based on the trial court’s ability to distinguish between admissible evidence and nonprejudieial surplus evidence, we find no error.

5. Evidence Is Sufficient.

As the trial court’s findings of fact are presumed correct, we will not seek reasons to reverse the trial court. Marnette v. Morgan, 485 N.W.2d 595 (S.D.1992); Lytle v. Morgan, 270 N.W.2d 359 (S.D.1978). Under the clearly erroneous standard, this Court must be left with a definite and firm conviction that a mistake has been made. Selle v. Pierce, 494 N.W.2d 634 (S.D.1993).

Due to Shippen’s repeated voluntary contacts with Parrott, plus a three-year period with no sexual contacts, we cannot justly describe their entire relationship as a tortious one. Conversely, the evidence does not support the angelic claims of Parrott. In fact, the trial court found that “[Parrott’s] testimony, for the most part, is false.” This Court gives due regard to the opportunity of the trial court to judge the credibility of witnesses. O’Connor v. King, 479 N.W.2d 162, 164 (S.D.1991). As for the sexual advances made during 1987, they survive under settled law. Although Parrott maintains the acts were consensual, he admits that the two alleged assaults occurring in 1987 were within the statutory period and may be determined by the factfinder. Finding the evidence supports both Shippen and the award, no mistake has been made.

Parrott additionally argues that the trial court erred in permitting punitive damages because the evidence did not meet the clear and convincing standard. SDCL 21-1-4.1. We explained this standard in Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D.1991), stating:

SDCL 21-1^11 requires the trial court to apply a clear and convincing evidence standard to determine, before any such claim may be submitted to discovery or to the jury, whether there is a reasonable basis to believe there has been a willful, wanton or malicious conduct on the part' of the party claimed against. That does not establish a clear and convincing evidence standard but merely requires clear and convincing evidence to show a reasonable basis. The clear and convincing language merely modifies the “reasonable basis” language to make a prima facie showing that punitive damages may be in order.

To resolve the issue of sufficiency of evidence, we examine the record to determine only if there is “competent and substantial evidence” to support the verdict. Id. at 478; Hoffman v. Louis Dreyfus Corp., 435 N.W.2d 211, 213 (S.D.1989). Although we have held that the torts occurring prior to January 3, 1986 are not actionable, they remain credible in supporting the trial court’s finding that Parrott’s conduct “over the past 16 years is such that it evidences that degree of willful and wanton misconduct that demonstrates an evil, malicious, wanton and depraved state of mind.” Such a finding highlights the modus operandi, so to speak, of Parrott and gives credence to Shippen’s assertions.

Trial court expressly held that Parrott’s testimony, for the most part, was false and successfully impeaehéd. Having heard this testimony, the trial court was in a better position to determine the credibility of the witnesses. Under the Hobelsberger rule, the findings on the two surviving causes of action, were not clearly erroneous. In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455, 459 (1970).

Therefore, inasmuch as compensatory and punitive damages were lumped together on causes of action dating back to 1975, we reverse the damage award and remand to the trial court for a reassessment of compensatory damages for those torts suffered during the statutory period noted herein, particularly those two acts during 1987. Furthermore, the trial court is to determine the amount of punitive damages for those causes of action occurring subsequent to January 3, 1986. SDCL 21-3-2; Flockhart at 475-76.

Affirmed in part, reversed and remanded in part.

MILLER, C.J., and WUEST, J., concur. SABERS and AMUNDSON, JJ., dissent.