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Clay v. Kuhl

June 24, 1998

JOELL CLAY, PLAINTIFF-APPELLANT,
v.
BROTHER RICHARD KUHL AND SOCIETY OF THE MISSIONARIES OF THE SACRED HEART, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Geiger delivered the opinion of the court:

Appeal from the Circuit Court of Kane County.

No. 96--LKA--0019

Honorable Timothy Q. Sheldon, Judge, Presiding.

The plaintiff, Joell Clay, appeals from the March 4, 1997, order of the circuit court of Kane County dismissing her complaint against the defendants, Brother Richard Kuhl and the Society of the Missionaries of the Sacred Heart (the Society). The plaintiff seeks recovery for damages arising out of the alleged sexual abuse committed against her by Brother Kuhl when she was a minor. In her complaint, the plaintiff alleged that Brother Kuhl began sexually abusing her in 1972 or 1973 but that she did not recall that molestation until 1995. Relying on this court's decision in M.E.H. v. L.H., 283 Ill. App. 3d 241 (1996), aff'd, 177 Ill. 2d 207 (1997), the trial court dismissed the plaintiff's complaint as barred by the statute of limitations. On appeal, the plaintiff argues that (1) her action was timely filed under section 13-- 202.2 of the Code of Civil Procedure (the Code) (735 ILCS 5/13--202.2 (West 1996)); (2) M.E.H. is factually distinguishable from the instant case; and (3) alternatively, we should change or modify our opinion in M.E.H. so as to allow her action to proceed. We reverse and remand.

The facts relevant to the Disposition of this appeal are as follows. On January 10, 1996, the plaintiff filed a four-count complaint against the defendants. The plaintiff amended her complaint twice. In her third amended complaint, the plaintiff alleged that Brother Kuhl sexually abused her over 900 times during a four-year period, starting when she was five or six years old. She also alleged that the Society had notice that Brother Kuhl was sexually abusing children and failed to take steps to prevent Brother Kuhl from molesting her. The plaintiff alleged that the abuse has caused her severe and irreparable psychological harm and that she has attempted suicide twice due to depression. The complaint further alleged that the plaintiff "had no memory of the molestation at any time during her majority until February of 1995." At the time the plaintiff initially filed her complaint, she was 28 years old.

Both defendants filed motions to dismiss the plaintiff's complaint pursuant to section 2--619 of the Code (735 ILCS 5/2--619 (West 1996)). In reliance on this court's decision in M.E.H. v. L.H., 283 Ill. App. 3d 241 (1996), the defendants asserted that the plaintiff's action was barred by the applicable statute of limitations. On March 4, 1997, the trial court granted the defendants' motions to dismiss. The plaintiff filed a timely notice of appeal.

On appeal, the plaintiff argues that the trial court improperly dismissed her complaint. The plaintiff contends that, pursuant to section 13--202.2 of the Code, she was entitled to bring her action within two years of the time she discovered that the act of childhood sexual abuse occurred. 735 ILCS 5/13--202.2 (West 1996). She maintains that the acts of abuse occurred from October 1972 or 1973 and continued for four years, ending no later than 1977. Without any allegation as to why she had no memory of the acts of abuse, she claims that she did not recall the events until February 1995. Since she filed her original complaint in this cause on January 10, 1996, which was within two years of when she claims to have first recalled the abuse, the plaintiff contends that her action was timely filed. Additionally, she argues that the trial court's reliance on M.E.H. v. L.H., 283 Ill. App. 3d 241 (1996), was improper because M.E.H. is factually distinguishable from the instant case. Alternatively, she asks that we change or modify our opinion in M.E.H. to allow her action.

The primary purpose of section 2--619 is to afford a means of obtaining, at the outset of a case, a summary Disposition of issues of law and of easily proved questions of fact. Doe v. Montessori School, 287 Ill. App. 3d 289, 296 (1997). Under section 2--619(a)(5), a defendant may raise a statute of limitations issue in a motion to dismiss. 735 ILCS 5/2--619(a)(5) (West 1996). When the defendant does so, the plaintiff must provide enough facts to avoid the application of the statute of limitations. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 84 (1995). When a plaintiff uses the discovery rule to delay the commencement of the statute of limitations, the plaintiff has the burden of proving the date of discovery. Hermitage, 166 Ill. 2d at 85.

Furthermore, when the defendant makes a motion to dismiss under section 2--619, all well-pleaded facts and reasonable inferences are accepted as true for purposes of the motion; Conclusions of law, however, are not accepted as true. Hermitage, 166 Ill. 2d at 85. A reviewing court should conduct an independent review of the propriety of dismissing the complaint and is not required to defer to the trial court's reasoning. Doe, 287 Ill. App. 3d at 297.

Whether the plaintiff's action in the instant case was timely filed is determined by examining the provisions of section 13--202.2(b) and (c) of the Code. 735 ILCS 5/13--202.2(b), (c) (West 1996). These sections provide:

"(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.

(c) If the injury is caused by 2 or more acts of child-hood sexual abuse that are part of a continuing series of acts of childhood sexual abuse by the same abuser, then the discovery period under subsection (b) shall be computed from the date the person abused discovers or through the use of reasonable diligence should discover (i) that the last act of childhood sexual abuse in the continuing series occurred and (ii) that the injury was caused by any act of childhood sexual abuse in the continuing series." 735 ILCS 5/13--202.2(b), (c) (West 1996).

Childhood sexual abuse is defined as sexual abuse that occurs to a person under 18 years of age. 735 ILCS 5/13--202.2(a) (West 1996). The limitations of section 13--202.2(b) do not begin to run until the alleged victim has attained the age of 18 years. 735 ILCS 5/13-- 202.2(d) (West 1996).

The principles governing statutory interpretation are well settled. The primary rule is that a court should determine and give effect to the legislature's intent. Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). This intent is best discerned from the words of the statute itself. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). Where the statutory language is clear and unambiguous, a court must construe the statute as enacted without adding exceptions, conditions, or limitations to the legislature's clearly expressed intent. Bethania Ass'n v. Jackson, 262 Ill. App. 3d 773, 776-77 (1994). Additionally, a court must construe the statute so as to give each provision some reasonable meaning and to ...


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