                                      I N   T H E   S U P R E M E      C O U R T           O F      T E N N E S S E E

                                                           A T      K N O X V I L L E

                                                                                                                        FILED
R E G I N A     D A R L E N E   H U N T E R                                   )             F O R      P U B L I C A T I O N
                                                                                                                    November 10, 1997
                                                                              )
                                                                              )             F I L E D :      N O V E M B E R 1 0 , 1 9 9 7
                                                                                                                     Cecil Crowson, Jr.
                      P l a i n t i f f - A p p e l l a n t                   )                                         Appellate C ourt Clerk
                                                                              )             R O A N E      C O U N T Y
v .                                                                           )
                                                                              )             H O N . R U S S E L L E . S I M M O N S , J R . ,
E D     B R O W N ,   J R .                                                   )                      J U D G E
                                                                              )
                                                                              )             N O .      0 3 - S - 0 1 - 9 6 0 7 - C V - 0 0 0 7 0
                      D e f e n d a n t - A p p e l l e e                     )




F o r     P l a i n t i f f - A p p e l l a n t :                             F o r              D e f e n d a n t - A p p e l l e e :

J E R R O L D L .       B E C K E R                                           P A T R I C K C . C O O L E Y
K n o x v i l l e ,     T N                                                   K i n g s t o n , T N

                                                                              J    O   H    N M . M C F A R L A N D
                                                                              K    i   n    g s t o n , T N
                                                                              a    n   d
                                                                              T    H   O    M A S A . P A V L I N I C
                                                                              A    n   n    a p o l i s , M D
                                                                              A    s        A m i c u s C u r i a e




                                                                 O P I N I O N
A F F I R M E D       B I R C H ,   J .




                  2
             In this action for damages, the plaintiff, Regina Darlene

Hunter, alleged that as a child she was sexually abused by the

defendant, Ed Brown, Jr., but was unable to file this action prior

to 1993 because she repressed the memory of the abuse.               The trial

court found no reason to toll the statute of limitations and granted

the defendant’s motion for summary judgment.            The Court of Appeals

affirmed.



             The issue before us is whether the discovery rule applies

to affect the accrual of Hunter’s claim.               We conclude, after a

thorough examination of the record and a careful consideration of

the arguments, that under the circumstances here presented, the

discovery rule does not apply. Consequently, Hunter’s claim accrued

in   1982,   and   her   action   filed   July   15,    1993,   is   untimely.

Accordingly, the order of summary judgment granted to the defendant

is affirmed.



                                      I



             Regina Darlene Hunter was born on October 13, 1967, and

she spent the greater portion of her childhood in foster care.              In

June 1981, she was placed in the foster home of Mr. and Mrs. Ed

Brown, Jr.      According to Hunter, Ed Brown, Jr., began sexually

abusing her in July 1981--a month after her placement in the Brown

home.   The abuse progressed from fondling to fairly frequent sexual

intercourse, and Hunter became pregnant in the spring of 1982.




                                     3
            When Patricia Martin, the Department of Human Services

caseworker in charge of Hunter’s case, learned of the pregnancy, she

removed Hunter from the Brown home.        Martin then arranged for an

abortion at a Knoxville facility, and the pregnancy was terminated

in June 1982.



            In addition to the physician who determined Hunter was

pregnant and Martin, Hunter told others of the abuse.                At the

physician’s insistence, Hunter told the defendant’s wife that Brown

had impregnated her--this was done while the plaintiff and Mrs.

Brown were still in the physician’s office. In addition, Martin and

Hunter talked with the district attorney general about the abuse.

Hunter has no specific recollection of the conversation with the

district attorney general, and there is no indication that the

complaint was ever investigated. After the abortion, Hunter was re-

located to a group home in Nashville, Tennessee.              According to

Hunter, at a time subsequent to the 1982 abortion, she repressed the

memory of it.



            Approximately eight years later, in August 1990, Hunter

gave birth to a daughter.      The medical records associated with the

birth   contain   the   following   references   to   the   1982   rape   and

abortion:   “6/27/90 Surgery:    abortion - Knox age 15; raped does not

know much about it,” “Abortion - age 15 - raped - doesn’t remember,”

and “PAST HISTORY:      Positive only for an abortion at an early age”.

In an affidavit, Hunter states:




                                     4
                 I deny any memory of ever having told anyone
                 about my abortion in 1982 while under Dr.
                 Foote’s care in 1990 or at Harriman Hospital in
                 1990.



          In 1992, Hunter became pregnant again.              She decided to

abort and returned to the facility where the 1982 pregnancy had been

terminated.     She underwent an abortion procedure in June 1992.          As

she was recovering from the effects of the anesthesia, Hunter began

to remember the prior abortion.            In her affidavit, Hunter stated

that “until I [went] to the Reproductive Health Center in July of

1992, I had completely repressed my first visit to the Center.              I

only remembered the details of the abuse and rape when I had been in

therapy with Ms. Schwind.”



          In    the   months    following    the   second   abortion,   Hunter

participated in therapy sessions with Erika Schwind, a licensed

clinical social worker.        With Schwind’s assistance, Hunter recalled

“the extent and type of sexual and physical abuse by Mr. Brown

committed upon me. . . .”



          Hunter filed this action on July 15, 1993.              She sought

compensatory and punitive damages from Brown for his alleged sexual

conduct toward her.       The defendant moved for a judgment on the

pleadings and contended that the suit was barred by the statute of

limitations.1




     1
      The trial court permitted the introduction of affidavits,
depositions, and medical records and treated the motion as one for
summary judgment.

                                       5
            The trial court held that Hunter’s statement that she did

not remember supplying the information found in the medical records

was insufficient to establish a genuine issue of material fact as to

whether in 1990, Hunter remembered the incidents that had occurred

in 1982.      The trial court granted the defendant’s motion and

dismissed the case.    The intermediate court affirmed.



                                  II



            This matter comes to us by way of a motion for judgment on

the pleadings--a motion that the trial court properly treated as a

motion for summary judgment.    Because it involves only questions of

law, no presumption of correctness attaches to the trial court’s

decision to grant summary judgment.       On appeal, we must freshly

determine whether the requirements of Tenn. R. Civ. P. 56 have been

met.     Gonzales v. Alman Constr. Co., 857 S.W.2d 42, 44-45 (Tenn.

App. 1993)(citing Hill v. City of Chattanooga, 533 S.W.2d 311, 312

(Tenn. App. 1975)).     In doing so, we must consider the pleadings

and the evidentiary materials in the light most favorable to the

movant's opponent, and we must draw all reasonable inferences in the

opponent's favor.     Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.

1993).



            As stated, Hunter filed this action on July 15, 1993.

Actions to recover damages for personal injuries must be commenced

“within one (1) year after the cause of action accrued.”   Tenn. Code




                                   6
Ann. § 28-3-104(a)(Supp. 1996).          Thus, if Hunter’s cause of action

accrued on or before July 15, 1992, her claim is barred.2



              A cause of action generally accrues when the tort is

complete and injury to the plaintiff has occurred. See McCroskey v.

Bryant      Air   Conditioning    Co.,   524   S.W.2d     487,   489-90    (Tenn.

1975)(citing cases).         In certain tort actions, however, the accrual

of the cause of action is deferred until the injury is discovered or

in the exercise of reasonable care and diligence, the injury should

have been discovered.         Quality Auto Parts Co., Inc. v. Bluff City

Buick Co., Inc., 876 S.W.2d 818, 820 (Tenn. 1994)(declining to apply

the discovery rule to slander claims).



              Under the discovery rule, the cause of action accrues and

the    statute    of    limitations   begins   to   run   when   the   injury   is

discovered, or in the exercise of due care and diligence, the

plaintiff discovers that he or she has a right of action.                 Potts v.

Celotex Corp., 796 S.W.2d 678, 680 (Tenn. 1990); McCroskey, 524

S.W.2d at 491.         The discovery rule applies only “in cases where the

plaintiff does not discover and reasonably could not be expected to

discover that [she] had a right of action.”               Potts, 796 S.W.2d at

680.       Further, the limitations period is tolled only during the

period when the plaintiff has no knowledge at all that a wrong has

occurred and, as a reasonable person, was not put on inquiry.




       2
      Because at the time of the alleged injury Hunter was a minor,
the one-year statute began to run when Hunter reached the age of
eighteen years. Hunter’s eighteenth birthday occurred on October
13, 1985.

                                         7
Potts, 796 S.W.2d at 680-81; Hoffman v. Hospital Affiliates, Inc.,

652 S.W.2d 341, 344 (Tenn. 1983).



          Hunter insists that she did not discover her injury nor

could she reasonably have discovered it until July 1992, the time of

the second abortion.      However, it is not disputed that Hunter

retained her memory of the events in 1982 for some period of time

because she reported the abuse to her social worker who took her to

speak to the district attorney general.      Although no prosecution

ever followed, clearly Hunter knew she had been injured and knew the

identity of the perpetrator.    The discovery rule simply delays the

accrual of the cause of action until the plaintiff is aware of the

injury.   Hunter was aware of the injury and the wrong, at the very

latest, when she had the abortion in 1982.    Therefore, the facts in

this case do not fairly raise the issue of repressed memory.       We

hold until another day the applicability of this theory to cases of

sexual abuse.



           As stated, because Hunter was a minor when the cause of

action accrued, Tenn. Code Ann. § 28-1-106 extended the period

within which Hunter could file an action to one year beyond her

eighteenth birthday.      Because this action was not filed until

approximately eight years after Hunter’s eighteenth birthday, it is

time-barred.



             The judgment of the Court of Appeals is affirmed.   Costs

of this cause are taxed to Hunter for which execution may issue, if

necessary.


                                   8
                             ____________________________________
                             ADOLPHO A. BIRCH, JR., Justice



CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.




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