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08/28/96 M.E.H. AND D.M.H. v. L.H. AND G.H.

August 28, 1996

M.E.H. AND D.M.H., PLAINTIFFS-APPELLANTS,
v.
L.H. AND G.H., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Ogle County. No. 94--L--67. Honorable Stephen C. Pemberton, Judge, Presiding.

Released for Publication October 1, 1996.

Presiding Justice McLAREN delivered the opinion of the court. Geiger and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The plaintiffs filed a civil complaint against their father for (1) childhood sexual abuse; (2) unlawful sexual relations (720 ILCS 5/11--11 (West 1992)); and (3) false imprisonment. The complaint also alleged that their mother was liable for (1) intentional infliction of emotional distress and (2) breach of parental duty. The trial court granted the defendants' motion to dismiss, concluding that the general personal injury statute of limitations (735 ILCS 5/13--202 (West 1992)) barred claims against the mother and the statute of repose contained in the childhood sexual abuse section of the Limitations Act (735 ILCS 5/13--202.2(b) (West 1992) (amended by Pub. Act 88--127 § 5, eff. January 1, 1994)) (hereinafter original 1991 Act) barred claims against the father. We affirm.

The original 1991 Act, which became effective on January 1, 1991, contains a 2-year statute of limitations and a 12-year statute of repose. (735 ILCS 5/13--202.2(b) (West 1992). The statute of repose bars complaints alleging childhood sexual abuse by persons 30 years of age or older. The original 1991 Act provides:

"An action for damages for personal injury based on childhood sexual abuse must be commenced within 2 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse, but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years." 735 ILCS 5/13--202.2(b) (West 1992).

In 1993 the legislature amended the 1991 Act. Pub. Act 88--127 § 5, eff. January 1, 1994; see 735 ILCS 5/13--202 (West 1994) (hereinafter, the amended 1994 Act). The amended 1994 Act repealed the statute of repose by deleting the following language from section 13--202.2(b):

"But in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abused attains the age of 18 years." 735 ILCS 5/13--202.2(b) (West 1992); see 735 ILCS 5/13--202.2(b) (West 1994).

In a complaint filed on October 14, 1994, the plaintiffs, D.M.H. and M.E.H., alleged that their father, the defendant, L.H, sexually abused them as minors. The plaintiffs alleged that they first recalled the abuse during psychological therapy in October 1992 and June 1992, respectively. The plaintiffs alleged they had no knowledge of the abuse until the October 1992 and June 1992 therapy sessions. In addition, the plaintiffs alleged that the abuse began when they were four years old and continued through their high school years. In support of their complaint, the plaintiffs attached affidavits of their therapists, which corroborated the alleged dates and claims. When the plaintiffs filed their complaint, D.M., who was born on April 7, 1949, was 45 years old, and M.E., who was born on October 3, 1950, was 44 years old.

The defendants filed a motion to dismiss the complaint pursuant to section 2--619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West 1994)), claiming that the suit was barred due to the statute of repose contained in the original 1991 Act. After hearing argument, the trial court granted the defendants' motion and dismissed the complaint with prejudice on the bases that (1) the general statute of limitations found in section 13--202 of the Limitations Act (735 ILCS 5/13--202 (West 1992)) barred the plaintiffs' cause of action against their mother, G.H.; and (2) the statute of repose contained in the original 1991 Act barred the plaintiffs' cause of action against their father, L.H. 735 ILCS 5/13--202.2(b) (West 1992). In that regard, the trial court determined the father had a vested right in the statute of repose contained in the original 1991 Act. Accordingly, the trial court concluded the amended 1994 Act, which repealed the statute of repose, did not apply retroactively to revive the plaintiffs' causes of action. The circuit court denied the plaintiffs' motion to reconsider.

On appeal, the plaintiffs argue that the trial court erred by granting the defendants' motion to dismiss because (1) the statute of repose does not apply to the plaintiffs' causes of action; (2) a bar against the plaintiffs' causes of action is contrary to this State's public policy; and (3) the repose provision in the original Act is unconstitutional.

Initially, we note that on appeal the plaintiffs do not challenge the trial court's dismissal of the counts against their mother. Nevertheless, they urge us in their reply brief to allow them to replead alleging "'specific acts of involvement, conspiracy, or complicity." However, the plaintiffs cite no authority to support this request, provide no argument, and address this issue for the first time in their reply brief. Therefore, we deem this issue waived. 145 Ill. 2d R. 341(e)(7). We now address the plaintiffs' counts against their father.

The purpose of section 2--619 is to allow the trial court to dispose of issues of law or easily provable fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 189 Ill. Dec. 31, 619 N.E.2d 732 (1993); Johnson v. Du Page Airport Authority, 268 Ill. App. 3d 409, 414, 206 Ill. Dec. 34, 644 N.E.2d 802 (1994). Pursuant to section 2--619(a)(5), a trial court may dismiss a cause of action if "the action was not commenced within the time limited by law." 735 ILCS 2--619(a)(5) (West 1994). We review the granting of a motion to dismiss de novo. Johnson, 268 Ill. App. 3d at 414.

D.M.H. was born April 7, 1949, and M.E.H. was born October 3, 1950. The original 1991 Act contains a statute of repose which prohibits "an action for personal injury based on childhood sexual abuse [to] be commenced more than 12 years after the date on which the person abused attains the age of 18 years." 735 ILCS 5/13--202.2(b) (West 1992). Therefore, under the original 1991 Act, the plaintiffs' causes ...


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