Case Summary for September 8, 2005

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Case Summary for September 8, 2005

These docket summaries, which are prepared by the Court's staff, may not include all issues pending before the Court and do not reflect any opinion of the Court about the merits of a case. They should not be quoted or cited.

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The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, September 8, 2005
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SC86875
Michael Powel v. Chaminade College Prepatory, Inc., and the Marianist Province of the United States and Archbishop Justin Rigali, William Christensen, and John J. Woulfe
St. Louis City
Statute of limitations for claims of intentional failure to supervise clergy

In June 2002, Michael Powel sued the Marianist Province of the United States, Chaminade College Preparatory School, Father William Christensen and Brother John J. Woulfe for damages arising out of childhood sexual abuse that he alleged he sustained while he was a student at Chaminade High School from late 1973 through November 1975. He alleges that Christensen and Woulfe sexually abused him and intimidated him into silence and that the Marianist Province and Chaminade intentionally failed to supervise clergy. He alleges that he involuntarily repressed his memory of the sexual abuse until February 2000. In March 2004, the circuit court granted the province and the school summary judgment on the counts alleging intentional failure to supervise clergy and certified this decision to be a final, appealable judgment for purposes of appeal. Powel appeals.

Powel argues the court erred in granting the defendants' motion for summary judgment. He contends his claims were filed in a timely manner under sections 516.120(4) and 516.100, RSMo, because his memory of the childhood sexual abuse he sustained was repressed until February 2000. He asserts the court of appeals' decision in H.R.B. v. Rigali, 18 S.W.3d 440 (Mo. App. 2000), failed to follow Missouri law and no longer should be followed. Powel argues the circuit court erred in holding that section 537.046, RSMo, does not apply to his claims for the defendants' intentional failure to supervise clergy. He contends this section allows for recovery against Marianist Province and Chaminade for damages he suffered as a result of childhood sexual abuse. He asserts there is no question that his damages result from childhood sexual abuse. Powel argues, in the alternative, that his cause of action for intentional failure to supervise clergy was filed timely because this cause of action was not recognized in Missouri until this Court issued its decision in Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997).

Marianist Province and Chaminade respond that the circuit court properly granted their motion for summary judgment. They argue the injury and damage resulting from sexual abuse is capable of ascertainment at the time of the sexual abuse, not when the alleged repressed memory of that abuse is regained. They contend, therefore, that Powel's suit was filed more than 10 years past the expiration of the five-year statute of limitations under section 516.120(4). They assert that Missouri law does not permit tolling (suspending) the statute of limitations simply because a plaintiff forgets or represses memory of his alleged damages and injuries after he sustained them. Marianist Province and Chaminade respond that, even if Missouri construed the "capable of ascertainment" test to apply when the injury was discovered, Powel's suit still was not filed in a timely manner. They argue that even proponents of the repressed-memory phenomena acknowledge a distinction between individuals who show they had no knowledge or memory of the sexual abuse from the time it occurred until years later and those who knew about the abuse as it occurred, remembered it for a while, but eventually repressed memory of it. They contend that because Powel knew about the abuse at the time it occurred, his subsequent alleged repression of his memories of the abuse does not toll the time limitations. Marianist Province and Chaminade assert that courts may not revive judicially claims that previously were barred by prior interpretations of the statute of limitations. They respond that Powel's claims were barred by the prior objective-based construction of the "capable of ascertainment" test. They argue they had a vested right to be free from suit for all claims for intentional failure to supervise clergy. Marianist Province and Chaminade contend the new statute of limitations in section 537.046, RSMo, for childhood sexual abuse claims may not be applied retroactively to save Powel's claims, which already were barred by the previous statute of limitations in section 516.120(4). They further assert that the new statute of limitations in section 537.046 also does not apply to claims for intentional failure to supervise clergy.

Thirteen crime victims' and advocacy organizations argue, as friends of the Court, that the general assembly intended for section 537.046 to extend the statute of limitations for all actions seeking the recovery of damages based on childhood sexual abuse. They contend that Missouri has joined most other states in enacting a delayed discovery statute to make it easier for victims of childhood abuse to sue. They assert that the court should have found that the statute's language permits causes of action against parties other than the perpetrator of the abuse if the causes of action are based on damages sustained as the result of childhood sexual abuse. The organizations argue that, by reference to Missouri criminal law, section 537.046 contemplates the liability of unincorporated associations and not-for-profit corporations as perpetrators. They contend that the Missouri general assembly enacted the delayed discovery statute in the context of a growing awareness of the part institutions play in allowing sexual abuse to occur and in recognition of the complex and delayed nature of the injuries victims of childhood sexual abuse occur. The organizations assert, therefore, that the Missouri general assembly clearly intended section 537.046 to provide relief to victims against all persons or entities responsible for the injury and to give victims more time to seek redress against all those responsible. The organizations argue that section 516.100 requires that damages be sustained substantially and capable of ascertainment before any cause of action accrues and that any contrary appellate case law is in error. They contend that, at this early stage of the litigation, the circuit court cannot say whether, as a matter of law, Powel could have ascertained he was injured before he repressed his memory of the abuse.

The Archdiocese of St. Louis argues, as a friend of the Supreme Court, that the circuit court properly granted summary judgment to the Marianist Province and Chaminade under the applicable statute of limitations, section 516.120(4). It contends the undisputed facts show that Powel's alleged damages were sustained and capable of ascertainment prior to any alleged claim of repression or loss of his memory. It asserts that once the fact of damage first becomes ascertainable and the right to sue arises, Powel cannot prevent the running of the statute of limitations because of a subsequent alleged intervening disability such as the absence of memory. The archdiocese further argues the circuit court properly ruled that section 537.046 does not apply to Powel's claims for intentional failure to supervise clergy because the statute's plain and ordinary language limits its application to the perpetrator of the specific acts of childhood sexual abuse.

SC86695
State ex rel. Laurie Dean v. The Honorable Jon A. Cunningham
St. Charles County
Challenge to order to compel details of medical history

Laurie Dean sued her employer, RARE Hospitality International, Inc., and two individuals under the state's human rights act, section 213.055, RSMo. She alleged that she was subject to gender discrimination and sexual harassment during the course of her employment. She sought damages for loss of income, emotional distress, humiliation, inconvenience and loss of enjoyment of life. RARE served interrogatories (written questions) on Dean, asking her whether she had been treated by medical or mental health professionals as a result of the facts she alleged in her petition, to identify all damages she sought as a result of her allegations, and to state whether she ever consulted or was treated by any mental health practitioner for any mental or emotional condition. RARE also asked that Dean produce all medical records that would describe her physical or mental condition and that she sign blank medical record releases. Dean responded that she was not claiming that she had not received medical or mental health treatment relating to her claimed damages and that she did not intend to offer expert testimony relating to her claimed emotional distress damages, explaining they were just "garden variety." She also objected to the medical records release on the grounds that it violated her physician-patient privilege, was not limited in time and was not designed to lead to the discovery of admissible evidence. RARE subsequently moved to compel responses to its discovery requests. Following a hearing, the circuit court ordered Dean to produce all her mental health treatment records and to execute the authorization for production of those records. The court also ordered Dean to answer the interrogatory question about whether she ever had consulted or been treated by any health care practitioner for any mental or emotional condition. Dean asks this Court for a writ of prohibition.

Dean argues the circuit court cannot compel her to produce information relating to unrelated psychotherapy because she has not waived her physician-patient privilege by claiming damages for emotional distress that did not result in a medically diagnosable condition. She contends the identity of her mental health treatment providers, mental health treatment records and physical treatment records are protected by the physician-patient privilege. Dean further asserts that the execution of blank medical releases that are unlimited to mental and physical treatment and covering her entire lifetime and the disclosure of her mental and physical health treatment information exceed the scope of permissible discovery.

RARE responds that the circuit court did not abuse its discretion in ordering Dean to respond to the discovery requests and to produce her mental health treatment records. It argues Dean waived the physician-patient privilege as to those records when she claimed emotional damages, placing her emotional condition in issue. RARE contends Dean invited broad discovery requests by her broad request for "garden variety" emotional distress damages. It asserts that Dean has the burden of proving that good cause exists for a writ of prohibition but that she has failed to place any facts in the record showing why RARE's discovery request is overly broad or why the discovery order exceeded the court's broad discretion.

The St. Louis Chapter of the National Employment Lawyers Association argues, as a friend of the Court, that a sexual harassment plaintiff such as Dean who seeks emotional distress damages but who has not claimed to have suffered severe trauma or a diagnosable mental illness as a result of the harassment alleged has not put her entire mental health history at issue. The association contends that to seek such records is an unwarranted and broad intrusion into the confidential relationship between a patient and her doctor or psychotherapist.

SC86802
State of Missouri v. John W. Vandevere
Taney County
Challenge to evidence supporting sexual abuse conviction

In October 2002, the state charged Mississippi resident John Vandevere with the class C felony of sexual abuse, alleging he had sexual contact by forcible compulsion with a 16-year-old girl in July 2002 in a Branson, Missouri, hotel room. In April 2004, following a judge-tried case, Vandevere was convicted of sexual abuse. He subsequently was sentenced to four years in the state department of corrections. Vandevere appeals.

Vandevere argues the court's finding of his guilt was against the weight of the evidence. He contends he did not use forcible compulsion, as it is defined in section 556.061(12), RSMo 2000. He asserts that he pulled on the girl's arm "just a tad bit," that she did not resist in any manner or indicate the sexual touching was bothersome, and that he did not intimidate or threaten her. Vandevere argues the court should not have entered a conviction of misdemeanor sexual misconduct under section 566.090, RSMo 2000. He contends that this charge is not a lesser-included offense of sexual abuse and that the evidence would not support a finding that the touching was not consensual. Vandevere asserts that the information charging him also is insufficient to provide notice of the elements of the crime of sexual misconduct and that to be tried for or convicted of it would deprive him of his due process rights.

The state responds that there was sufficient evidence to establish, under the totality of the circumstances, that Vandevere used forcible compulsion to sexually abuse the girl. It argues the girl was scared, did not come close to Vandevere willingly and cried when Vandevere kissed her. The state contends that should this Court determine there was insufficient evidence of forcible compulsion, then it should enter a conviction for the lesser offense of sexual misconduct. It argues that the trial court made the necessary findings to support such a conviction and that the only real difference is whether Vandevere used forcible compulsion or whether his touching was done without the girl's consent. The state further contends that first-degree sexual misconduct is a lesser-included offense of sexual abuse because the forcible compulsion required for sexual abuse necessarily means the victim did not provide valid consent.

SC86622
James R. Berger v. Cameron Mutual Insurance Company
Jackson County
Challenge to denial of motion for leave to file appeal out of time

Cameron Mutual Insurance Company issued a homeowner's insurance policy to James Berger and his now ex-wife. In June 2001, Berger filed a claim with Cameron, alleging his wife was stealing personal property from the insured residence. Cameron denied the claim the next month. In October 2002, Berger filed another claim, alleging that his wife had stolen personal property and that the insured residence was vandalized. While that claim was pending, Berger sued Cameron, alleging it breached the insurance contract by refusing to pay his claim. In December 2003, the court ordered Berger to comply with Cameron's discovery requests. In March 2004, the circuit court found that Berger had failed to comply with Missouri discovery rules and the court's discovery order, and it entered judgment in Cameron's favor. Fifteen days later, Berger filed a motion for rehearing in the circuit court, which never ruled on Berger's motion. At the end of June 2004, Berger cancelled the hearing he had scheduled regarding his motion. He never filed a notice of appeal in the circuit court but, in December 2004, Berger filed a motion in the Missouri Court of Appeals for a special order granting him leave to file a notice of appeal out of time. The Court of Appeals denied his motion, and Berger appeals.

Berger argues his motion for the special order granting leave to file the notice of appeal out of time was filed within six months of the circuit court's final judgment, as required by Rule 81.07. He contends his motion and attorney's affidavit show that his failure to file the notice of appeal was not due to culpable negligence. He asserts that filing a notice of appeal out of time is permitted if there was no culpable negligence.

Cameron responds that the Court of Appeals properly denied Berger leave to file a notice of appeal out of time because it was not filed within six months after the circuit court's judgment became final, as required by Rule 81.07. Cameron argues that Berger's motion for rehearing was not an authorized after-trial motion and, therefore, that the circuit court's judgment became final in April 2004. Cameron contends Berger has not shown that his failure to file his notice of appeal in a timely fashion was not due to culpable negligence. It asserts that Berger's counsel's claim that Berger's case fell through the cracks and claims regarding the attorney's medical problems, computer problems and work load are disingenuous because none of these problems caused Berger or the attorney to neglect the hearing they cancelled. Cameron further responds that there is no authority under Kingler v. Director of Revenue, 281 F.3d 776 (8th Cir. 2002), for this Court to reverse the Court of Appeals' decision.

Note: Mr. Berger did not file an appellant's brief in this case.