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Stephenson v. Elison

Court of Appeals of Utah

August 10, 2017

Roger Stephenson, Appellant,
Gerald Elison, Bennett Neilsen, and Alpine School District, Appellees.

         Fourth District Court, Provo Department The Honorable David N. Mortensen No. 140400281

          Sara Pfrommer and Emily Adams, Attorneys for Appellant.

          Sean D. Reyes and J. Clifford Petersen, Attorneys for Appellees.

          Judge Jill M. Pohlman authored this Opinion, in which Judges Stephen L. Roth and Michele M. Christiansen concurred. [1]

          POHLMAN, Judge.

         ¶1 Roger Stephenson filed suit in 2014, alleging that in the early 1980s he had been sexually assaulted by a junior high school teacher. Stephenson alleged claims against the teacher, Gerald Elison; the junior high school principal at the time, Bennett Neilsen; and the Alpine School District (ASD). The district court granted summary judgment in favor of the defendants on the ground that the relevant statutes of limitations expired before Stephenson filed suit. We dismiss Stephenson's appeal on the related ground that Stephenson's failure to provide timely notice of his claims left the district court without subject matter jurisdiction to adjudicate them.


         ¶2 From 1979 until 1982, Stephenson attended Orem Junior High School, where Elison was a drama and musical theater teacher.[2] Stephenson enrolled in Elison's classes and participated in plays produced under Elison's supervision. In 1981 or 1982, Stephenson had a conversation with a classmate regarding Elison's conduct toward him and allegedly described conduct that constituted sexual assault. The classmate informed a teacher, and the teacher reported the matter to Neilsen.

         ¶3 Neilsen questioned Stephenson regarding the allegations, in a manner Stephenson described as "hostile and accusatory, " which led Stephenson "to believe he had acted inappropriately and would be subject to discipline." Neilsen allegedly instructed Stephenson to recount the accusations, and the following day Neilsen and Elison allegedly pressed Stephenson on whether there had been a "misunderstanding." No further action was taken.

         ¶4 Over twenty-five years later, in January 2008, Stephenson "approached the Orem Police Department . . . with information regarding Elison's abuse." But a member of the police department with a "family connection" to Elison allegedly interfered with the investigation of Stephenson's claims, and "no legitimate investigation of Elison was ever conducted."

         ¶5 In February 2008, Stephenson confronted Elison and allegedly obtained "what is effectively a[] [signed] admission" of sexual assault, as well as an agreement that Elison would have "no further contact with minor children." Around that same time, Stephenson approached ASD with his concern that no charges had been filed against Elison, and he was allegedly told that a thorough investigation had been conducted but no evidence corroborating his allegations of sexual abuse had been uncovered.

         ¶6 In November 2013, Stephenson submitted a notice of claim to ASD, and in early 2014, Stephenson filed his complaint in the underlying action. Against Elison, he alleged sexual assault and sexual battery; against Elison and Neilsen, he alleged intentional infliction of emotional distress; and against Elison, Neilsen, and ASD, he alleged negligence, conspiracy, and failure to report sexual abuse of a minor. He also sought declaratory and injunctive relief.

         ¶7 With regard to the timing of his lawsuit, Stephenson alleged that "[o]nly in the past few years" had he "become cognizant to the full extent of damages caused by Elison's sexual abuse and ASD's and Neilsen's complicit enabling through willful inaction and active cover-up attempts." Moreover, "exceptional circumstances involving physical and medical issues" had prevented Stephenson from filing the lawsuit "until this time."

         ¶8 Elison and Neilsen moved to dismiss, asserting that Stephenson had not timely provided notice of his claims as required by the Governmental Immunity Act of Utah. See Utah Code Ann. § 63-30-12 (Allen Smith Co. Supp. 1985) (providing that "[a] claim against the state or its employee for an act or omission occurring during the performance of his duties, within the scope of employment, or under color of authority, is barred unless notice of claim is filed . . . within one year after the claim arises") (repealed 2004); id. § 63G-7-402 (LexisNexis 2008).

         ¶9 Elison and Neilsen asserted that Stephenson's claims were tolled until he reached the age of majority in the mid-1980s, that the one-year period to provide notice of his claims expired the following year, and that Stephenson did not file notice of his claims until 2013. According to Elison and Neilsen, because Stephenson had already "lost his right . . . to recover" on his claims, the alleged 2008 cover-up of those claims could not have resulted in damage, and Stephenson had not alleged and could not have sustained injury stemming solely from the alleged cover-up. ASD filed a separate motion asserting these same grounds for dismissal.

         ¶10 The district court denied the motions, concluding that the complaint did not state "facts relevant to [Stephenson's] compliance with the notice of claim procedures, " as there was "no mention of a notice of claim." The court elected not to treat the motions to dismiss as motions for summary judgment and thereby consider matters outside the complaint because, in the court's view, the "sensitive nature and complexity of the claims and defenses" rendered "summary resolution . . . premature." See Utah R. Civ. P. 12(b) (requiring conversion of motions to dismiss to motions for summary judgment when the court considers "matters outside the pleading")

         ¶11 Shortly thereafter, when the parties were engaged in initial discovery and months away from the deadlines set for completion of fact and expert witness discovery, Elison and Neilsen moved for summary judgment. ASD joined the motion, which asserted that the statutes of limitations relevant to Stephenson's claims had expired before Stephenson filed suit.

         ¶12 Stephenson asked the court to deny the motion because "factual issues" existed regarding whether the "statutes of limitations [were] tolled." Stephenson also obtained leave to file supplemental briefing regarding whether he should receive additional time to conduct discovery. In his briefing, Stephenson asserted that "[f]urther discovery is needed" on the issues of "the nature and extent of" Stephenson's competency to bring an action alleging sexual abuse, "whether exceptional circumstances exist that tolled the statute of limitations, " and "whether fraudulent concealment tolls the statute of limitations."

         ¶13 Elison and Neilsen objected, asserting that Stephenson had "fail[ed] to explain how additional discovery directed to" the defendants would "aid in [Stephenson's] evaluation of his own mental competency." (Emphasis omitted.) According to Elison and Neilsen, Stephenson "also fail[ed] to present any argument explaining why the discovery rule and/or fraudulent concealment apply to facts including his having direct knowledge of the circumstances surrounding the allegations of sexual abuse . . . both in 1981 and again in 2008."

         ¶14 On reply, Stephenson asserted that "[m]ental capacity and memory repression are both issues which, if present as alleged, would have the effect of tolling the statute of limitations"; that "memory repression, mental capacity, and even influence of fraud . . . are issues squarely for expert discovery"; and that "expert reports are typically produced after discovery is complete." Stephenson also alleged that "[t]here are, at this time, documents which indicate the possibility of fraudulent concealment but which require additional discovery."

         ¶15 The district court granted the defendants' motion for summary judgment and dismissed all of Stephenson's claims. The court concluded that the defendants had met their initial burden with regard to expiration of the limitations periods and that Stephenson had failed to present evidence creating a fact issue as to tolling. The court also denied Stephenson's request for additional time for discovery, concluding that Stephenson had "fail[ed] to explain how additional discovery directed to defendants [would] aid in his evaluation of his own mental competency" or would "affect his own admissions of having direct knowledge of the circumstances surrounding the allegations of sexual abuse."

         ¶16 Stephenson then moved to alter or amend the judgment, asserting that "newly discovered[] material evidence, including the opinions of Stephenson's expert, demonstrates that the statute of limitations should be tolled." Stephenson attached a brief report by Dr. David M. Ranks, who evaluated Stephenson shortly after summary judgment was granted. Dr. Ranks's write-up included his "initial expert opinion that the abuse and subsequent concealment 'left [Stephenson] factually unable to comprehend his trauma.'" (Alteration in original.)

         ¶17 Later, in his reply briefing, Stephenson submitted a more substantive write-up and supporting declaration by Dr. Ranks, which stated, among other things, that Stephenson's "attempts to reach out to law enforcement" and ASD officials in 2008 were not "conclusive evidence" that he "factually comprehended at that time he had been sexually abused, " and Stephenson was "unable to factually comprehend the circumstances of his abuse[], and that he had been sexually abused, until the time this lawsuit was filed. In other words, . . . Stephenson was unable to comprehend his abuse sufficiently to bring the litigation until the time he actually" filed his complaint.

         ¶18 The district court denied Stephenson's motion, concluding that the opinions and declaration of Dr. Ranks were not newly discovered evidence because, at a minimum, an affidavit from Dr. Ranks could have been submitted prior to issuance of the court's ruling on summary judgment. In addition, the court concluded that the evaluations and declaration did not establish, for tolling purposes, that ...

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