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09/30/94 D.P. v. M.J.O.

September 30, 1994

D.P., INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF C.J.P., A MINOR, AND T.G., PLAINTIFFS-APPELLANTS,
v.
M.J.O., SR. AND J.M.O., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOSEPH N. CASCIATO, JUDGE PRESIDING.

Gordon, Murray, McNULTY

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court: BACKGROUND

In July 1991 plaintiffs, D.P. and T.G., filed an action for damages against their Parents resulting from alleged childhood sexual abuse committed against them by their father, defendant M.J.O., Sr. on a continuing basis from the time they were three years of age and continuing until September, 1980. The original complaint was dismissed pursuant to the motion of defendants under § 2-619(5) of the Code of Civil Procedure (735 ILCS 5/2-619(5) (West 1992)) and an amended complaint was filed.

The first amended complaint is in four counts. The first count seeks recovery from the father for acts which he allegedly committed against the plaintiff-daughters during their childhood until September, 1980. With respect to the applicable limitations, that count provides at paragraph four thereof as follows: This action was commenced within two (2) years of the date on which the plaintiffs discovered that the foregoing damage was caused by the childhood sexual abuse of the defendant, [M.J.O., Sr.], and not more than twelve (12) years after the plaintiffs attained the age of eighteen (18) years." Count II seeks recovery against the mother on an assault theory. It alleges that on several occasions through and including July 1990, the defendant mother threatened the plaintiffs with bodily harm if they publicly disclosed that they had been sexually assaulted as children by their father. Count III is brought by one of the plaintiffs, D.P., as the mother and next friend of her six-year-old child, C.J.P., alleging that C.J.P. was sexually assaulted by her grandfather defendant, M.J.O., Sr., in 1989. Count IV is apparently directed against both defendants charging them with the negligent infliction of emotional distress resulting in the breach of their duties of parental love and affection which they owed to the plaintiffs.

Defendant M.J.O., Sr. moved to dismiss Counts I and IV pursuant to § 2-619(5) of the Code of Civil Procedure on the ground that these actions were time barred under the limitations period imposed by § 13-202 of the Limitations Act (735 ILCS 5/13-202 (West 1992)) insofar as they were not filed within two years after the plaintiffs reached their majority. The mother defendant J.M.O. did not join in that motion nor did the father defendant, M.J.O., Sr., move to dismiss count III (filed on behalf of the grandchild.)

In support of his motion to dismiss counts I and IV, defendant M.J.O., Sr., alleged the undisputed fact that plaintiffs were aged 28 and 26 respectively when they filed their lawsuit in 1991. The trial court granted the motion of defendant, M.J.O., Sr., and entered an order on August 21, 1992, dismissing counts I and IV as to him.

In granting the dismissal motion, the trial court stated as follows:

". . .I agree with counsel for the movant's position that it isn't truly a discovery case.

I think what we have here is a previously barred cause of action that can't be revived by a changing of the statute of limitations which in this case does shorten it under 13-202.2 . . . .

I don't think it should be extended. I don't think you had a cause of action, and therefore, any retroactive application does not revive a previously stale cause of action. I'll make that ruling."

At plaintiffs' request, the court added a finding under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) to render the dismissal order final and appealable.

Plaintiffs contend that notwithstanding the fact that they filed this action more than nine years after the last act was allegedly committed by the defendant which would subject him to liability, the trial court incorrectly concluded that its action was time barred and not subject to extension by the application of the judicially developed discovery rule. Plaintiffs further contend that even if this action would have been time barred within two years after the plaintiffs reached their respective majorities pursuant to § 13-202 of the Limitations Act, the action would have been revived by the subsequent enactment of § 13-202.2 of the Limitations Act (735 ILCS 5/13-202.2 (West 1992)) which expressly provides for the application of the discovery rule and, which plaintiffs contend, manifests an express legislative intent to apply retroactively to claims that otherwise would have been time barred under the preexisting applicable statutes of limitation.

We agree with plaintiffs' first contention that the trial court erred in refusing to apply the discovery rule to this cause of action and for that reason reverse and remand. However, we agree with the trial court's rejection of plaintiffs' second contention that, even if time ...


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