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Kuch v. Catholic Bishop of Chicago

May 30, 2006

FREDERICK H. KUCH, PLAINTIFF-APPELLANT,
v.
CATHOLIC BISHOP OF CHICAGO, A CORPORATION SOLE, AND CLARENCE TOPP A/K/A CLARENCE VON TOPP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 04 L 3385 The Honorable Diane J. Larsen, Judge Presiding.

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

On March 24, 2004, the plaintiff, Frederick Kuch, sued the defendants, the Catholic Bishop of Chicago and Clarence Topp, to recover damages for injuries he sustained when he was sexually abused by Topp in 1960. On January 25, 2005, the trial court dismissed the plaintiff's complaint as time-barred. The plaintiff appeals that order, arguing that his complaint was timely in light of amendments made in 2003 to the childhood sexual abuse provisions of the Code of Civil Procedure (Code) (735 ILCS 5/13-202.2 (West 2004)). For the reasons that follow, we affirm the judgment of the trial court.

In his complaint, the plaintiff alleged that in 1960, Topp was the choirmaster of the Little Singers of the Sacred Cross Choir of the Nativity of Our Lord Church. The Catholic Bishop hired Topp for that position. The plaintiff, who was 12 years old at that time, was a member of the choir. The plaintiff alleged that the Topp sexually abused him during his involvement with the choir.

The plaintiff indicated that, as a consequence of the abuse, he has, and continues to suffer from, generalized anxiety disorder, post- traumatic stress disorder, and avoidant personality disorder with self- defeating personality traits. In his initial complaint, he alleged that he did not become aware that these injuries were a result of the sexual abuse until 2002.

Both defendants filed motions to dismiss the plaintiff's complaint as untimely. The defendants argue that his claims were time-barred in 1991 when a 12-year statute of repose took effect. They also contend that the claims were barred by the two-year statute of limitations for personal injuries, which would have required the plaintiff to file his claim within two years of reaching majority age.

In October 2004, the plaintiff moved for leave to file an amended complaint. The amended complaint alleged the same violations in the original complaint but also explained that "[p]laintiff did not become aware until November of 2003 that his injuries of ill-being *** and other injuries were caused by the sexual abuse attack upon him by defendant Topp in 1960."

The defendants again moved to dismiss the plaintiff's complaint as time-barred. Attached to the plaintiff's response to the defendants' motions was a letter from Dr. Ronald H. Rottschafer, a clinical psychologist, that stated that the plaintiff consulted him for treatment in November 2003 and at that time, the plaintiff was not aware that his symptoms and emotional injuries were the result of having been sexually abused. In January 2005, the trial court granted the defendants' motions to dismiss. The court held that the plaintiff's claims were time-barred and it dismissed his complaint with prejudice. In March 2005, the court denied the plaintiff's motion to vacate or reconsider that order. This appeal followed.

The plaintiff argues that this court should apply the statute of limitations found in section 13-202.2 of the Code as amended in 2003. That section provides:

"Notwithstanding any other provision of law, an action for damages for personal injury based on childhood sexual abuse must be commenced *** within 5 years of the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse. The fact that the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred is not, by itself, sufficient to start the discovery period under this subsection (b). Knowledge of the abuse does not constitute discovery of the injury or the causal relationship between any later-discovered injury and the abuse." 735 ILCS 5/13-202.2(b) (West 2004).

The plaintiff contends that his "substantive right to sue pursuant to the new amended statute trumps *** the defendants' so-called due process rights under a statute of limitations and/or repose."

The defendants argue that the trial court properly dismissed the plaintiff's action because it was already time-barred when the legislature amended section 13-202.2 in 2003. The defendants contend that the plaintiff's action was barred in 1991 when the legislature amended that same section to provide for a 12-year statute of repose for childhood sexual abuse cases. In 1991, section 13-202.2(b) read:

"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." Ill. Rev. Stat., 1990 Supp., ch. 110, par. 13-202.2(b) (eff. January 1, 1991).

The defendants argue that "once the plaintiff's claim was time barred, it was not and could not have been retroactively revived by a 2003 amendment lengthening the limitations period for childhood sexual abuse." The defendants also contend that the plaintiff's claim was barred by the personal injury statute of limitations, which would have required him to file a claim within two years after reaching majority age.

The defendants moved to dismiss the plaintiff's complaint pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2004)). A defendant is entitled to dismissal under section 2-619(a)(5) if the "action was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2004). We review a trial court's dismissal of a plaintiff's complaint de ...


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