Nolde v. Frankie , 190 Ariz. 422 ( 1998 )

OPINION

KLEINSCHMIDT, Judge.

The facts, taken as they favor the Plaintiffs, are these. The Defendant, Bruce Frankie, was a teacher and track coach at Washington High School. Each of the Plaintiffs was a student at Washington High School during the 1970s or 1980s. The Defendant seduced each of the Plaintiffs and engaged in extensive sexual activity with each over a long period of time. Most of this activity occurred while the Plaintiffs were minors.

The Defendant completely dominated the Plaintiffs psychologically. By means of this domination, together with threats to harm the Plaintiffs and those close to them, the Defendant persuaded or intimidated the Plaintiffs into keeping silent about his activities.

In the years following the cessation of their relationship with the Defendant, each Plaintiff experienced emotional problems, due in large part to their relationship with the Defendant. Each sought counseling of one kind or another. A clinical psychologist and a psychiatrist who are familiar with the Plaintiffs have expressed the opinion that fear of the Defendant, psychological blocking, internalized shame, guilt, self-blame, confusion, denial, repression and disassociation from the abuse have worked together to create an inability on the part of each. Plaintiff to understand, on a conscious level, the connection between the Defendant’s abuse and the mental and emotional damage they have suffered. These factors have made it impossible for the Plaintiffs to take any practical action to redress their grievances.

As the result of counseling for their problems, each of the Plaintiffs came to realize the wrongfulness of what the Defendant had done and how it was responsible for their problems. As a result, they were gradually able to free themselves from the Defendant’s domination. Two of the Plaintiffs filed suit against the Defendant and the School District in 1993, and the third Plaintiff joined in the action in 1994. The Defendants filed motions for summary judgment based on the two-year statute of limitations, and these were granted. The Plaintiffs appealed.

The Plaintiffs acknowledge that they brought suit many years after the occurrence of the events which give rise to their claims. They argue, however, that the statute of limitations did not begin to run until they discovered the causal connection between their injuries and the Defendant’s conduct. Based upon the professional literature that we discussed in Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (App.1993), the Plaintiffs also argue that we should adopt a special tolling rule for cases involving the abuse of a child by an adult in a position of trust.

After the Plaintiffs filed this appeal, our supreme court decided the consolidated appeal in Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996). In that case, the plaintiff, Gomez, had been molested when he was about twelve years old by a priest. He subsequently led a chaotic life and, when he was thirty, sued the priest and the diocese that had employed the priest. In response to the invocation of the statute of limitations defense, Gomez asserted that the statute was tolled because he was of unsound mind within the meaning of A.R.S. section 12-502, that he had been under duress, that his memory had been repressed, and that he did not connect the sexual abuse to his injuries until within two years of filing the action.

The other plaintiff in the consolidated appeal in Florez, Melissa Moonshadow, had been sexually abused by her father from the age of six until she was seventeen. She suffered from posttraumatic stress disorder which prevented her from confronting her father. She also alleged that her father threatened her with injury or death if she told of the abuse. Some four years after the last incident of abuse, Moonshadow brought suit.

The supreme court concluded that in each case, the statute of limitations barred the action. The court rejected every argument concerning psychological pressure, repressed memory, posttraumatic stress disorder, duress, fraud and equity that the Plaintiffs in the case now before us have raised. The supreme court held that the touchstone of whether an unsound mind will toll the statute is whether the plaintiff is able to manage his or her ordinary daily affairs, something that all of the Plaintiffs in the case before us have indisputably been able to do. Florez governs this case, and we are required to follow it.

The Plaintiffs also allege that the court erred in refusing to allow them to complete discovery before granting the summary judgment on the basis of the statute of limitations. In light of the all encompassing nature of Florez with respect to the issues, we cannot find an abuse of discretion in the trial court’s ruling.

The Defendants have requested attorney’s fees under the provisions allowing for such when an appeal is frivolous. The appeal was not frivolous when filed, and is not frivolous now. The request for fees is denied.

The order of the trial court granting the Defendants’ motions for summary judgment is affirmed.

THOMPSON, P.J., concurs.