Doe v. Roe , 187 Ariz. 605 ( 1997 )

OPINION

SULT, Judge.

We must determine whether the trial court erred in entering summary judgment against Appellant, Jane Doe, on the ground that the statute of limitations barred her cause of action against her parents, Appellees John and Jane Roe, for her father’s alleged sexual abuse of Doe when she was a minor.¹ We view the facts favorably to Appellant and determine “de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.” Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993).

FACTS AND PROCEDURAL HISTORY

Jane Doe is the daughter of John and Jane Roe. Doe claims that beginning when she was about eight years old, and continuing until she was fifteen, her father sexually abused her. Doe also claims that this experience was so traumatic that as a child she developed psychological coping mechanisms which caused her to completely repress the memory of this abuse. Her first recollection was a “flashback” which occurred on July 10, 1989, when she was thirty four years old. This recollection was triggered by a television program discussing childhood incest and Doe realized she had been sexually abused by her father. Doe became extremely distraught as a result of this flashback and immediately sought psychological counseling.

Although Doe continued counseling from the date of the first flashback, she initially denied the validity of her memory of abuse and did not again discuss specifics of the abuse with her counselor until six months later. In May of 1990, Doe remembered additional incidents of abuse which she reported to her counselor in early June of 1990. These memories were so painful and created such strong feelings of shame and guilt that the next day Doe threatened suicide. The counselor arranged for Doe’s admission to the psychiatric ward of a New York hospital, but Doe discharged herself against medical advice two days later on June 9, 1990. Doe then flew to visit her parents in Phoenix and confronted them for the first time with her accusations of abuse.

After Doe returned to New York, she continued in counseling. Because of the stress and the suicidal feelings she experienced as a result of her continuing recall of abuse, Doe quit her job in August of 1990, moved to Seattle, Washington, and continued counseling there. Doe attempted to include her parents in her counseling but they refused.

Doe filed this suit against her parents on May 13, 1992. The Roes moved for sum-, mary judgment on the ground that Doe’s complaint was barred by the statute of limitations and the trial court agreed. Doe timely appealed.

DISCUSSION

In Arizona, a plaintiff must file suit for personal injuries within two years after the cause of action accrues. Arizona Revised Statutes Annotated (“A.R.S.”) section 12-542 (1992). Because the alleged abuse in this case occurred when Doe was a minor, the limitations period was tolled until she reached age 18. A.R.S. § 12-502(A) (1992). However, Doe’s complaint is prima facie untimely because she filed suit more than two years after her eighteenth birthday.

The statute would nevertheless not bar her action if Doe can establish some reason why the statute should not apply in the particular circumstances of this case. In this connection, Doe raises three grounds. She first argues that she was of unsound mind within the two year period before filing the action and A.R.S. section 12-502(A) (1992) tolled the statute until this disability was removed. She next argues that Roes are estopped from claiming the benefit of the statute of limitations since they caused her mental impairment. Finally, she argues that she did not “discover” the cause of action until less than two years before filing the action. The Roes dispute these assertions and additionally argue that Doe is attempting to tack the disabilities of minority, unsound mind, and “discovery” in violation of the anti-tacking statute, A.R.S. section 12-503 (1992).

1. Disability of Unsound Mind

Arizona law recognizes that a person who is of “unsound mind” at the time a cause of action accrues is under a legal disability, and the statute of limitations does not begin to run until removal of that disability. AR.S. § 12-502(A). Doe argues that her father’s abuse created a mental impairment which both caused her to repress the memory of the abuse and, when the memories surfaced, made her depressed, suicidal, and unable either to work or to pursue legal remedies against her father. Doe invites this court to adopt a broad definition of the term “unsound mind” which would include the mental impairment she describes.

The Arizona Supreme Court has recently decided this issue adversely to Doe’s position. In Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996) that court held that the disabling psychological effects of child abuse do not constitute an “unsound mind” under section 12-502(A) where the victims were able to function on a day-to-day basis and manage their ordinary affairs. There is no meaningful distinction between the arguments presented in Florez and those presented by Doe in this matter. Moreover, the record here discloses that even more so than the victims in Florez, Doe was able to manage her affairs and understand her legal rights. She graduated from college, supported herself, worked as a stock-trader, and was promoted to a vice president position, a position she held at the time her memories surfaced. Following her first memory, she continued to support herself and work at her job until she voluntarily quit and moved to Seattle. In Seattle, she managed to budget her savings and do whatever else was necessary to support herself while she continued her therapy for her psychological problems. We conclude that there is no genuine issue of material fact that Doe was not of “unsound mind” for purposes of tolling the statute of limitations. See also Annot., Posttraumatic Syndrome as Tolling Running of Statute of Limitations, 12 AL.R.5th 546 (1993); Annot., Running of Limitations Against Action far Civil Damages for Sexual Abuse of Child, 9 A.L.R.5th 321 (1993).

2. Estoppel

Doe suggests that because her father’s action caused her mental impairment he should be estopped .from asserting the statute of limitations. To claim estoppel or equitable tolling in this context, Doe must show her parents committed some positive act, in addition to the claimed abuse, that either concealed Doe’s cause of action or induced her to forbear from filing suit. Ulibarri v. Gerstenberger, 178 Ariz. 151, 162, 871 P.2d 698, 709 (App.1993); see Smith v. Smith, 830 F.2d 11 (2d Cir.1987) (no estoppel where no evidence showing abuser committed some act that prevented the victim from filing suit); Bowser v. Guttendorf, 373 Pa.Super. 402, 541 A.2d 377 (1988) (insufficient allegations that defendant’s acts deceived victim or concealed actions); Snyder v. Boy Scouts of America, 205 Cal.App.3d 1318, 253 Cal.Rptr. 156 (1988) (no estoppel by induced delay: boy scout leader’s influence terminated long before victim filed suit). On our examination of the record, we find no evidence to support Doe’s suggestion of estoppel.

3. Discovery Rule

Arizona follows the rule that “a plaintiff’s cause of action does not accrue until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause [of action].” Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 588-89, 898 P.2d 964, 966-67 (1995); Kenyon v. Hammer, 142 Ariz. 69, 76 n. 6, 688 P.2d 961, 968 n. 6 (1984); Kowske v. Life Care Centers of America, Inc., 176 Ariz. 535, 537, 863 P.2d 254, 256 (App.1993); Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 252, 482 P.2d 497, 501 (1971). Arizona has not yet had occasion to determine whether the discovery rule should apply where the allegation is that childhood sexual abuse caused repressed memory of the abuse, thereby postponing knowledge of the abuse into adulthood. The better reasoned authorities from other jurisdictions indicate that the rule should apply. See, e.g., Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870 (1994) (discovery rule applies: repressed memory caused by childhood sexual abuse tolls statute of limitations until memory revived); Mary D. v. John D., 264 Cal.Rptr. 633 (App.1989), review dismissed, 275 Cal.Rptr. 380, 800 P.2d 858 (Cal.1990) (same); Olsen v. Hooley, 865 P.2d 1345 (Utah 1993) (adds requirement of independent corroboration); Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988) (applies discovery rule in a case where an adult survivor had no memory of childhood sexual abuse until after the expiration of the statute of limitations);² see also, Note, Tolling the Statute of Limitations in Actions Brought by Adult Survivors of Childhood Sexual Abuse, 33 Ariz. L.Rev. 427 (1991); Annot., Emotional or Psychological “Blocking” or Repression as Tolling Running of the Statute of Limitations, 11 A.L.R.5Ü1588 (1993).

Arizona does not look with favor on the defense of the statute of limitations, Insurance Co. of North America v. Superior Court, 166 Ariz. 82, 86, 800 P.2d 585, 589 (1990), and the discovery rule developed as a tool to mitigate the harshness of applying the statute to a plaintiff who could not have known any of the facts underlying the cause of action. Gust, Rosenfeld, 182 Ariz. at 588, 898 P.2d at 966 (applying discovery rule to breach of contract cases). The rationale behind the rule is that it is unjust to deprive a plaintiff of a cause of action before he has a reasonable basis for believing that a claim exists. Id. at 589, 898 P.2d at 967.

These principles underlay our decision in Ulibarri to apply the discovery rule where an adult patient claimed that her psychiatrist sexually exploited her and concealed this exploitation from her through hypnosis. 178 Ariz. at 158, 871 P.2d at 705. We see no meaningful distinction between that case and the instant case where the concealment, in the form of repressed memory, arose directly out of the acts alleged to have caused the harm complained of. We agree with the authorities from the other jurisdictions cited above and hold that the discovery rule applies to cases of repressed memory alleged to arise from childhood sexual abuse.³

The next question is whether the trial court correctly applied the rule here in determining that Doe’s claim was barred. Doe’s own affidavit establishes that on July 10, 1989, while watching a television program on incest, she “realized that I had been sexually abused by my father.” She became hysterical and immediately sought and obtained counseling that day. To the counselor Doe “disclosed that I remembered being sexually abused by my father.” The counselor’s affidavit states that within six months of this initial disclosure, in early 1990, Doe was talking about the specifics of the abuse.

In Arizona, the discovery rule delays accrual of a cause of action only until the claimant knows, or by the exercise of reasonable diligence should know, that the defendant harmed her. Mayer, 14 Ariz.App. at 252, 482 P.2d at 501. It would appear that Doe met this test on July 10, 1989, or at the latest within six months of that date, when she began discussing specifics of the abuse with her therapist. Doe argues, however, that notwithstanding her initial memories, she was not able to accept them as true until after extensive therapy. Therefore, she reasons, she did not discover the “facts” giving rise to her claim until she was within two years of the filing of her complaint.

We reject this argument for the reason that it rests on the premise that notwithstanding Doe knew of her father’s actions and the effect on her of those actions, she was psychologically unable to accept the truth of the memories. With this argument, Doe is in effect creating an additional category of “unsound mind” under A.R.S. section 12-502(A), something our supreme court has already declined to do. Florez v. Sargeant, 185 Ariz. at 528-29, 917 P.2d at 257-58 (1996). See O’Neal v. Division of Family Services, 821 P.2d 1139, 1142-43 (Utah 1991) (where claimant possessed knowledge of the facts necessary to bring the claim, psychological inability to reveal the abuse did not constitute “mental incompetence” of the type sufficient to toll the running of the statute).

Moreover, it is not necessary for a claimant to know all the facts for the statute to begin to run; rather, all that is required is that he know enough facts as would prompt a reasonable person to investigate and discover the full extent of the claim. Richards v. Powercraft Homes, Inc., 139 Ariz. 264, 266, 678 P.2d 449, 451 (App.1983), approved in part, vacated in part, 139 Ariz. 242, 678 P.2d 427 (1984). Here, the record is uncontroverted that by July 1989, or at the latest by early 1990, Doe knew that her father had sexually abused her as a child. The resulting hysteria and involvement in counseling establishes that she also knew, or should have known, that she was injured by this conduct. Thereafter, she had two years under the statute to further investigate, discover, and file her claim. She did not do so and the trial court was correct in finding that her claim was time barred.⁴

The dissent raises two issues. The first concerns Doe’s claim against her mother and asserts that the trial court should not have granted summary judgment in favor of the mother. The matter was presented to the trial court as a joint motion for summary judgment on behalf of both parents, based on the statute of limitations, and asserting that Doe discovered the sexual abuse on July 10, 1989. In her response thereto, Doe did not attempt to separate her claims and argue the dissent’s theory why her claim against her mother was discovered at a later time and therefore not barred by the statute. Rather, she presented the same arguments to the trial court that she has presented to this court, none of which focused separately on the claim against her mother and none of which argued for a separate finding on this claim.

It is true, as the dissent points out, that we review a grant of summary judgment de novo. This rule is not without its limits, however. When a party does not raise an issue in its appellate brief and support it by a separate argument, the issue is waived and we do not consider it. Jones v. Burk, 164 Ariz. 595, 597, 795 P.2d 238, 240 (App.1990). We do not have an obligation or a mandate to raise an issue which the parties have not and then decide the case on that issue with no notice to the parties and no briefing or argument from them. If there was legal error in the trial court’s ruling aside from what Doe argues here, it was Doe’s responsibility to point this out to us. She has not done so and has therefore waived her right to do so.

The dissent also proposes an application of the discovery rule which would permit Doe to sue, presumably in separate actions if she so chose, each time she experienced recovered memory of a specific incident of childhood abuse. The dissent argues that since each incident represents a separate tort, an independent application of the limitations statute should be applied each time such an incident is remembered, resulting in a separate accrual date for that incident. The dissent justifies this approach by arguing that recovery of repressed memory is often a lengthy process, even with the exercise of “due diligence,” so that the “investigation” standard of cases like Richards v. Powercraft Homes, Inc., supra, is not workable for this type of case.

We disagree with the dissent for several reasons. Foremost is that, like the first issue raised by the dissent, this issue has not been raised, briefed or argued by Doe. Moreover, we question whether this record would support application of the dissent’s proposal. In her complaint, Doe alleged merely an unspecified number of sexual assaults beginning in 1967 and promised to provide specific factual details at trial. In the summary judgment proceedings, the affidavits of Doe and her therapists referred several times to “new memories” surfacing at various times, such as in late May and June of 1990. However, nowhere does Doe specify the content of these memories and, consequently, we don’t know whether the memories were of additional specific incidents of abuse or, for example, were memories of Doe’s pain, humiliation, or the like. Only the former would trigger the application of the discovery rule but without specification of the nature of the “new memories”, even the dissent’s proposal cannot save Doe’s claim.

We also reject the dissent’s proposal because of the effect it would have on the statute of limitations and its underlying policy and purposes. In Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 799 P.2d 801 (1990), our supreme court stated:

Statutes of limitations afford substantial rights to prospective defendants. The protection they provide is an indication of a public policy that encourages injured parties to pursue redress in an expeditious manner. The legitimate purposes of statutes of limitations are threefold: (1) to protect defendants from stale claims; (2) to protect defendants from insecurity— economic, psychological, or both; and (3) to protect courts from the burden of stale claims.

Id. at 464, 799 P.2d at 805 (citations omitted). As we understand the effect of the dissent’s proposal, a claimant could recover memory of an incident of abuse and sue thereon. This would not be the end for the defendant, however. If the claimant then recovered memory of a different incident, even years later, the claimant could then sue the defendant on that incident. This process could go on indefinitely, resulting in a multiplicity of actions with no protection afforded the defendant from the statute of limitations. Such a result is completely contrary to the policy of statutes of limitations as expressed in Ritchie and would eviscerate the statute as a defense.

The dissent relies for its proposal on the case of Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990). This case is clearly distinguishable. In interpreting Michigan law, the federal district court relied on the Michigan disability statute which included “insanity” as a disabling condition tolling the running of the statute. Mich. Comp. Laws § 600.5851. Significantly, a disability under this statute tolls the limitations statute until “one year after the disability is removed.” Id. The district court found that due to the claimant’s repression, disassociation and severe depression, she qualified as “disabled.” Because she continued to remember incidents of abuse within the time period for filing, her entire claim was timely since her disability was not removed so long as she continued to remember such incidents.

Arizona does not recognize repressed memory as a disability under our statute. Florez v. Sargeant, supra. Moreover, the discovery rule in Arizona commences the running of the limitations period based upon an “investigate and discover” standard. It has no provision for further postponement to await the removal of a psychological disability which may prolong the investigation and discovery period beyond that provided by the applicable statute of limitations. Thus, Nicolette provides no support for the dissent’s proposal.⁵

The dissent asserts that our holding overlooks the fact that childhood sexual abuse inflicts deep psychological trauma resulting, inter alia, in the repressed memory phenomenon. Moreover, the dissent argues that even with due diligence, memory cannot always be timely recovered since it often requires painful long-term counseling. The only answer, the dissent then argues, is a change in the discovery rule.

We reject the notion that we are overlooking the trauma of childhood sexual abuse. Our holding applying the discovery rule to such claims is an express recognition of the debilitating impact such acts have on their victims. What we decline to do is judicially amend the statute of limitations by engrafting upon it a variation which would, in effect, substitute the legislatively mandated period expressed therein for an indefinite and unaseertainable term. It may well be that two years is simply too short a period of time for this type of case. If a claimant is to have a longer period than two years following the first discovery of childhood sexual abuse, that extension will have to come from the legislature. We do not have the power to make that change.

CONCLUSION

Because of our disposition of Doe’s claim, we need not consider Roe’s assertion based on the anti-tacking statute. Having found that there are no genuine issues of material fact and that Roes are entitled to judgment as a matter of law, we affirm the judgment of the trial court. Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

GARBARINO, P.J., concurs.

1 . To protect the parties, the trial court amended the caption to use fictitious names, and sealed the record.

2 . In a later decision in the same case, the district court found the complaint time-barred based on a recently amended statute of limitations. 766 F.Supp. 662 (N.D.Ill.1991). The Illinois Appellate Court, however, held the statute could not be applied retroactively. Phillips v. Johnson, 231 Ill.App.3d 890, 174 Ill.Dec. 458, 599 N.E.2d 4 (1992).

3 . The application of the discovery rule to claims of repressed memory is not without criticism and some jurisdictions have refused to apply it in that context. See e.g., Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695 (1995); Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986) (result changed by statute); Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870, 875 (Wright, J., dissenting).

4 . Authority from other jurisdictions supports this holding. Franke v. Geyer, 209 Ill.App.3d 1009, 154 Ill.Dec. 710, 568 N.E.2d 931 (1991) (where plaintiff aware of the abuse and that she was injured by it, discovery rule does not toll the statute of limitations until victim is aware of the extent and cause of psychological injuries); Doe v. R.D., 308 S.C. 139, 417 S.E.2d 541 (1992) (limitations period not tolled where son was aware of father’s molestation, even if he were not aware of the extent of his injuries); Byrne v. Bercker, 176 Wis.2d 1037, 501 N.W.2d 402 (1993) (statute barred action where claimant failed to timely file after she knew the fact and nature of her injuries and knew that her father's conduct was the cause of those injuries, even though she had not been able through therapy to “shift the blame” to her father until within the time period for filing.)

5 . Nicolette has subsequently been severely limited in its application to Michigan claimants by the Michigan Supreme Court in Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695 (1995). There, the court refused to apply the discovery rule to repressed memory of childhood sexual abuse. It stated:

Adoption of the plaintiffs’ position would leave a determination of the onset of a limitation period an open question within the subjective control of the plaintiff. Placing a plaintiff in this discretionary position to allege the onset of the disability of repressed memory and the termination of that condition within an applicable grace period would ‘vitiate the statute of limitations as a defense’ and is a circumstance we have rejected in the past.

534 N.W.2d at 703. The court did not specifically disapprove Nicolette but distinguished it as a case where refusing to apply the statute of limitations may have been justified because there was independent corroboration of the abuse. Id., n. 15.