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10/14/97 MARY K. PEDIGO v. J. ROYCE PEDIGO AND H.

October 14, 1997

MARY K. PEDIGO, PLAINTIFF-APPELLANT,
v.
J. ROYCE PEDIGO AND H. EUGENE PEDIGO, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 90-L-1235. Honorable P. J. O'Neill, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Chapman and Hopkins, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, Mary K. Pedigo, appeals from an order of the circuit court of Madison County dismissing her third amended complaint for damages allegedly arising out of sexual abuse committed against her by defendant, J. Royce Pedigo, plaintiff's father, and defendant, H. Eugene Pedigo, plaintiff's uncle, when she was a minor. On appeal, the issue we are asked to consider is whether the circuit court erred in dismissing plaintiff's complaint as time-barred under section 13-202.2(b) of the Code of Civil Procedure (the Code) (735 ILCS 5/13-202.2(b) (West 1992)). We reverse and remand.

FACTS

On September 13, 1990, plaintiff, age 34 at the time, filed her original four-count complaint. Counts I and II sought compensatory and punitive damages from plaintiff's father and uncle for intentionally and wilfully harming her. Count III sought damages from plaintiff's father for negligently and recklessly failing to protect plaintiff, and count IV sought damages from both defendants for intentional and wilful acts of sexual abuse. Plaintiff alleged that from the time she was two years old until she was 10 or 11, during the years 1958 through 1966, defendant father intentionally and repeatedly sexually abused plaintiff. Plaintiff alleged that on at least one occasion during the years 1956 through 1963, while her uncle was visiting plaintiff's family home, both defendants engaged in simultaneous acts of sexual and physical abuse of plaintiff. Plaintiff further alleged that as a result of said abuse by her father, she suffered severe and permanent physical and emotional injuries, "including psychological trauma, which caused loss of memory and suppression of recollection of the alleged sexual abuse," until some time in October or November of 1988.

In October 1990, defendants filed a motion to dismiss, asserting, inter alia, that the complaint was barred by the statute of limitations in that it was filed more than two years after plaintiff reached her eighteenth birthday (see Ill. Rev. Stat. 1989, ch. 110, pars. 13-202, 13-211 (now see 735 ILCS 5/13-202, 13-211 (West 1992))). On December 13, 1990, the circuit court entered an order denying defendants' motion to dismiss the complaint as time-barred and granting plaintiff leave to file an amended complaint in which damages are alleged to be "in excess of $15,000," to comply with section 2-604 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2-604).

Plaintiff filed her first amended complaint on December 24, 1990. On January 11, 1991, defendants filed a motion for the reconsideration of their motion to dismiss, citing amended section 13-202.2 of the Code (Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-202.2 (as amended by Pub. Act 86-1329, eff. January 1, 1991)), which provided at that time, in pertinent part:

"(b) 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."

Defendants' motion noted that under section 13-202.2(e) (Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-202.2(e)), effective January 1, 1991, the new provision applied to actions pending on January 1, 1991, and the motion alleged that because plaintiff reached the age of 30 on January 15, 1986, and the original complaint was filed on September 13, 1990, the action was time-barred by the amended statute of limitations.

Plaintiff filed an answer to defendants' motion for reconsideration and a memorandum in opposition to the motion, which alleged that even if the 12-year limitation period referred to in section 13-202.2(b) applied, plaintiff was under a legal disability at the time she attained the age of 18 and that, under section 13-202.2(d) (Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-202.2(d)), "the limitation periods under subsection (b) do not begin to run until the removal of the disability." However, plaintiff's memorandum noted that whether the psychological trauma caused by defendants' physical and sexual abuse constituted a legal disability sufficient to delay the commencement of the limitations period under subsection (b) and when such legal disability ended were questions "which can only be resolved by a hearing." On March 25, 1991, the circuit court entered an order allowing defendants' motion for the reconsideration, vacating the court's December 13, 1990, order denying defendants' motion to dismiss, and dismissed plaintiff's complaint with prejudice. The circuit court's order stated, inter alia, that the psychological trauma alleged by plaintiff was not sufficient to constitute a legal disability which delayed commencement of the limitations period.

On April 24, 1991, plaintiff filed a motion to vacate the circuit court's order dismissing her complaint, arguing that the court should not have concluded as a matter of law that the psychological trauma alleged by plaintiff was insufficient to constitute a legal disability and requesting that plaintiff be granted a hearing on the issue or leave to file an amended complaint to sufficiently plead a legal disability. Following a hearing on August 7, 1991, the circuit court denied plaintiff's motion to vacate, and an appeal followed. In an unpublished order (Pedigo v. Pedigo, No. 5-91-0606 (August 6, 1993) (Pedigo I) (unpublished order under Supreme Court Rule 23 (134 Ill. 2d R. 23))), we reversed the dismissal order, finding:

"It is clear that, because plaintiff's original and amended complaints were filed prior to the statutory amendment contained in section 13-202.2, the trial court should have allowed plaintiff the opportunity to replead and provide affidavits in order to attempt to establish that she was under a legal disability sufficient to delay commencement of the limitation period under section 13-202.2(b). See Johnson v. Johnson (N.D. Ill. 1991), 766 F. Supp. 662, 664-65.

We wish to make clear that we are not deciding the question of whether it would be proper to bar a plaintiff's cause of action by retroactive application of an amendment to the statute of limitations. This issue may arise in the future and could be dependent upon evidence adduced at a hearing on the disability." Rule 23 order at 5.

We then remanded for further proceedings.

Upon remand, plaintiff filed a second amended complaint. Defendants filed numerous motions attacking the second amended complaint, i.e., a notice demanding a bill of particulars, a motion for a fuller or more particular statement, and a motion attacking a second amended complaint. The circuit court denied defendants' motions to the extent they relied on section 2-619 of the Code (735 ILCS 5/2-619 (West 1992)). The circuit court concluded that a material and genuine disputed question of fact had been raised by the pleadings as to whether plaintiff was actually under a "legal disability." The circuit court granted defendants' motion pursuant to ...


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