#26000 - #26009-a-SLZ

2012 S.D. 64

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                    ****

                                   (#26000)
                        (N.O.R. #26034, #26042, #26045)

TERESA BERNIE,                                  Plaintiff and Appellant,

v.

BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT,                                      Defendants and Appellees,

and

CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4,
                                                Defendants.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                   THE HONORABLE BRADLEY G. ZELL
                              Judge

                                    ****




                                                ARGUED ON MAY 22, 2012

                                                OPINION FILED 09/05/12
---------------------------------------------------------------------------------------------------------------------
                                                     (#26001)
                                         (N.O.R. #26035, #26047)

GALEN DRAPEAU,                                                          Plaintiff and Appellant,

v.

BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT,                                                              Defendants and Appellees,

and

CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4,                                                  Defendants.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26002)
                                   (N.O.R. #26036, #26043, #26046)

L.C.A.; J.C.B.; L.J.C.; G.D.; B.C.D.;
R.B.; M.L.B.; F.B.C.; Y.P.C.,                                           Plaintiffs and Appellants,

v.

BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT,                                                              Defendants and Appellees,
and

CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4,                                                  Defendants.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26003)
                                               (N.O.R. #26037)

MARY MCGHEE DOG SOLDIER,                                                Plaintiff and Appellant,

v.

BLUE CLOUD ABBEY,                                                       Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26004)
                                               (N.O.R. #26048)

ALFRED EAGLE DEER, SR.,                                                 Plaintiff and Appellant,

v.

OBLATE SISTERS OF THE BLESSED
SACRAMENT,                                                              Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26005)
                                               (N.O.R. #26038)

RITA FAYE FLOOD,                                                        Plaintiff and Appellant,

v.

BLUE CLOUD ABBEY,                                                       Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26006)
                                               (N.O.R. #26044)

GROVER CURTIS MALLORY,                                                  Plaintiff and Appellant,

v.

SISTERS OF THE BLESSED SACRAMENT,                                       Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26007)
                                               (N.O.R. #26039)

RODERICA ROUSE,                                                         Plaintiff and Appellant,

v.

BLUE CLOUD ABBEY,                                                       Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26008)
                                               (N.O.R. #26040)

LOREN RAYMOND ZEPHIER,                                                  Plaintiff and Appellant,

v.

BLUE CLOUD ABBEY,                                                       Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.
---------------------------------------------------------------------------------------------------------------------
                                                    (#26009)
                                               (N.O.R. #26041)

ISADORE M. ZEPHIER,                                                     Plaintiff and Appellant,

v.
BLUE CLOUD ABBEY,                                                       Defendant and Appellee,

and

CATHOLIC DIOCESE OF SIOUX FALLS,                                        Defendant.

                                       ****
                                (#26000 — #26002)
      (N.O.R. #26034, #26035, #26036, #26042, #26043, #26045, #26046, #26047)

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California

and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota                                                Attorneys for plaintiffs and
                                                                        appellants.

ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota

and

ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota                                               Attorneys for defendant and
                                                                        appellee Blue Cloud Abbey
                                                                        N.O.R. #26034, #26035, #26036.
CHRISTOPHER W. MADSEN of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota                          Attorneys for defendant and
                                                   appellee Sisters of the Blessed
                                                   Sacrament N.O.R. #26042,
                                                   #26043, #26047.

MICHAEL J. FORD
DYAN J. EBERT of
Quinlivan & Hughes, PA
St. Cloud, Minnesota                               Attorneys for defendant and
                                                   appellee Oblate Sisters of the
                                                   Blessed Sacrament N.O.R.
                                                   #26045, #26046.

                                    (#26003)
                                 (N.O.R. #26037)

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota                           Attorneys for plaintiff and
                                                   appellant.

ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota

and

ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota                          Attorneys for defendant and
                                                   appellee Blue Cloud Abbey
                                                   N.O.R. #26037.
                                    (#26004)
                                 (N.O.R. #26048)

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California

and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota                           Attorneys for plaintiff and
                                                   appellant.
MICHAEL J. FORD
DYAN J. EBERT of
Quinlivan & Hughes, PA
St. Cloud, Minnesota                               Attorneys for defendant and
                                                   appellee Oblate Sisters of the
                                                   Blessed Sacrament N.O.R.
                                                   #26048.

                                    (#26005)
                                 (N.O.R. #26038)

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California

and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota                           Attorneys for plaintiff and
                                                   appellant.

ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and

ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota

                                                   Attorneys for defendant and
                                                   appellee Blue Cloud Abbey
                                                   N.O.R. #26038.

                                    (#26006)
                                 (N.O.R. #26044)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California

and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota                           Attorneys for plaintiff and
                                                   appellant.
CHRISTOPHER W. MADSEN of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota                      Attorneys for defendant and
                                               appellee Sisters of the Blessed
                                               Sacrament N.O.R. #26044.

                                #26007—#26009)
                            (N.O.R. #26039—#26041)

REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California

and

MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota                       Attorneys for plaintiffs and
                                               appellants.

ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota

and

ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota                      Attorneys for defendant and
                                               appellee Blue Cloud Abbey
                                               N.O.R. #26039, #26040, #26041.
#26000 - #26009

ZINTER, Justice

[¶1.]         The plaintiffs and appellants are former students who attended a

boarding school. They alleged that they were sexually abused while attending the

school more than thirty-five years ago. The students commenced suits against some

alleged perpetrators and entity defendants Blue Cloud Abbey, the Sisters of the

Blessed Sacrament, the Oblate Sisters of the Blessed Sacrament, and the Catholic

Diocese of Sioux Falls. The entity defendants were alleged to have owned, operated,

or controlled the school when the abuse allegedly occurred. After a prior appeal to

this Court, 1 the circuit court granted summary judgment both for and against the

entity defendants on a large number of substantive and procedural issues. The

circuit court later granted a motion to dismiss all remaining claims against the

three entity defendants who are the appellees in these appeals. 2 Because it is

dispositive, we only address one issue raised by the entity defendants by notice of

review. We conclude that an extended statute of limitations for childhood sexual

abuse did not apply in these cases because the entity defendants were not

perpetrators who were alleged to have engaged in intentional, criminal conduct.

Because these lawsuits were filed more than twenty years after the applicable

statute of limitations expired, we affirm the circuit court’s dismissal. 3



1.      Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, 752 N.W.2d 658.

2.      The suits against the Catholic Diocese of Sioux Falls are the subject of
        separate appeals. See Bernie v. Catholic Diocese of Sioux Falls, ___ S.D. ___,
        ___ N.W.2d ___.

3.      We disagree with the circuit court’s conclusion that the extended statute of
        limitations applies to non-perpetrating entity defendants that have not
                                                             (continued . . .)
                                           -1-
#26000 - #26009

                             Facts and Procedural History

[¶2.]         All plaintiffs in these consolidated appeals claim to be victims of

childhood sexual abuse committed prior to 1975 when they were students at St.

Paul’s School, which is located in Marty, South Dakota. Between 2004 and 2008,

the students commenced suits against some alleged perpetrators and some entity

defendants. 4 The complaints asserted liability against the entity defendants on the

following theories: (1) negligent hiring, retaining, and supervising persons who were

known or should have been known to be sex abusers; (2) breach of fiduciary duty in

failing to protect the students from abuse; and (3) vicarious liability under the

doctrine of respondeat superior. The circuit court ultimately dismissed on a

procedural ground. The court relied on a 2010 enactment that barred certain claims

against entity defendants. The 2010 enactment was added to SDCL 26-10-25, a

statute of limitations extending the time to commence certain actions for childhood

sexual abuse. The court concluded that the 2010 amendment applied retroactively

to bar the sexual abuse claims against the entity defendants. We address a

predicate question raised by the entity defendants on notice of review: whether the




________________________
(. . . continued)
         engaged in intentional, criminal misconduct. Nevertheless, we affirm the
         judgment because the circuit court dismissed on a related statute of
         limitations question.

4.      The students did not sue the school, which was incorporated as St. Paul’s
        Indian Mission Corporation.


                                           -2-
#26000 - #26009

extended statute of limitations even applies to causes of action against non-

perpetrators of childhood sexual abuse. 5

[¶3.]         SDCL 15-2-14 provides that except when a different limitation is

prescribed by statute, actions for personal injury “can be commenced only within

three years after the cause of action shall have accrued.” At the time the students

commenced these actions, SDCL 26-10-25 extended the time to commence certain

actions involving childhood sexual abuse. The extension gave victims time to

discover the causal relationship between the sexual abuse and the resulting injury.

SDCL 26-10-25 (1991) provided:

              Any civil action based on intentional conduct brought by any
              person for recovery of damages for injury suffered as a result of
              childhood sexual abuse shall be commenced within three years
              of the act alleged to have caused the injury or condition, or three
              years of the time the victim discovered or reasonably should
              have discovered that the injury or condition was caused by the
              act, whichever period expires later.


5.      This issue has evaded appellate review. In One Star v. Sisters of St. Francis,
        Denver, Colorado, 2008 S.D. 55, ¶ 6, 752 N.W.2d 668, 674, we considered
        whether suits alleging childhood sexual abuse were timely commenced
        against non-perpetrating entity defendants under SDCL 26-10-25. But the
        petition for review reflects that the parties assumed for purposes of another
        argument that the statute applied to non-perpetrators. In Zephier v. Catholic
        Diocese of Sioux Falls, 2008 S.D. 56, ¶ 3, 752 N.W.2d 658, 661, and Iron Wing
        v. Catholic Diocese of Sioux Falls, 2011 S.D. 79, ¶ 6, 807 N.W.2d 108, 110, the
        question was whether factually, those students commenced their suits within
        three years following discovery of the causal connection between the alleged
        abuse and the injuries as required in SDCL 26-10-25. Although the
        applicability of SDCL 26-10-25 was raised by some entity defendants in
        Zephier, not all entity defendants joined that argument. More importantly,
        the circuit court had not addressed the question. Because the issue had not
        been addressed by the circuit court, we remanded the issue for that court’s
        initial consideration. Zephier, 2008 S.D. 56, ¶ 20, 752 N.W.2d at 667. The
        question has now been decided by a circuit court and the issue is squarely
        presented for appellate review.


                                            -3-
#26000 - #26009

[¶4.]        The students argue that they are entitled to the extension in SDCL 26-

10-25. See One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 13, 752 N.W.2d 668,

675. The entity defendants respond that SDCL 26-10-25 does not apply to non-

perpetrating defendants who are sued on theories of negligence or other causes of

action not based on intentional, criminal conduct. The entity defendants point out

that the statute applies to actions that are “based on intentional conduct” involving

“childhood sexual abuse.” They also point out that childhood sexual abuse is

specifically defined as sexual abuse that is proscribed by the criminal code. See

SDCL 26-10-29. The entity defendants contend that the circuit court erred in

allowing the students to utilize SDCL 26-10-25 because the entity defendants were

not alleged to have engaged in “intentional acts” of “childhood sexual abuse” that

was proscribed by the criminal code.

                                       Decision

[¶5.]        The construction and application of statutes of limitation present legal

questions that we review de novo. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d

87, 88. In reviewing summary judgment, “affirmance is suitable if any legal basis

exists to support the court’s decision.” Horne v. Crozier, 1997 S.D. 65, ¶ 5, 565

N.W.2d 50, 52.

[¶6.]        SDCL 26-10-25 applies to “[a]ny civil action based on intentional

conduct brought by any person for recovery of damages for injury suffered as a

result of childhood sexual abuse.” (Emphasis added.) For purposes of this statute,

childhood sexual abuse is defined in SDCL 26-10-29 as any act committed “by the

defendant against the complainant . . . [and] which act would have constituted a


                                          -4-
#26000 - #26009

felony.” (Emphasis added.) The question is whether, in light of these emphasized

limitations, SDCL 26-10-25 applies to claims against non-perpetrating defendants

who are sued for negligence or on other theories of liability not involving

intentional, criminal conduct. Courts that have considered this question have

reached different conclusions.

[¶7.]        We are persuaded by the courts that have relied on the plain and

ordinary meaning of identical or similar language limiting application of such

statutes to claims based on intentional conduct constituting a criminal offense. For

example, the Colorado Court of Appeals considered the “plain language of the text”

that limited the Colorado statute to actions “based on . . . a sexual offense against a

child.” Sandoval v. Archdiocese of Denver, 8 P.3d 598, 600-01 (Colo. App. 2000).

The court concluded that this limiting language, “when viewed within the context of

the entire statute,” restricted application of the statute to claims brought against

perpetrators and did not include related claims brought against third parties. Id. at

602.

[¶8.]        The Colorado court acknowledged the view of other courts that the

language “based on” can be read to allow a victim’s claims if the claims simply arise

from “the factual circumstances of the sexual offense.” Id. at 601. The court

specifically acknowledged Werre v. David, 913 P.2d 625 (Mont. 1996) and C.J.C. v.

Corp. of Catholic Bishop, 985 P.2d 262 (Wash. 1999) (both applying the “based on”

intentional conduct language to negligence claims against non-perpetrators because

the perpetrator’s sexual act was the starting point or foundation for injury that

would not have occurred absent the abuse). Sandoval, 8 P.3d at 601. The Colorado


                                          -5-
#26000 - #26009

court also acknowledged Almonte v. New York Medical College, 851 F. Supp. 34 (D.

Conn. 1994) (applying an extended statute of limitations to claims against non-

perpetrators on the theory that public policy required the extension). Sandoval, 8

P.3d at 601. But the Colorado court concluded that when the limiting language was

“viewed within the context of the entire statute, . . . the term ‘based on’

encompasses only those civil claims brought against the perpetrator arising from

his or her sexual assault or offense.” Id. at 602. The court found it “highly

significant” that the statute was tied to sexual offenses as defined in the criminal

code, and criminal proscriptions do “not include negligently allowing an offense to

happen or placing a perpetrator in a position to commit a sexual offense against a

child.” Id.

[¶9.]         Rhode Island’s decision is even more persuasive because its statute is

virtually identical to SDCL 26-10-25. Rhode Island enacted a statute of limitations

for “[a]ll claims or causes of action based on intentional conduct brought by any

person for recovery of damages for injury suffered as a result of childhood sexual

abuse . . . .” Kelly v. Marcantonio, 678 A.2d 873, 875 (R.I. 1996) (emphasis added).

The statute defined childhood sexual abuse as “any act committed by the defendant

against a complainant” that would have been a criminal act. Id. at 876 (emphasis

added). The Rhode Island Supreme Court stated that the first clause emphasized

above did not explicitly limit the statute’s application to perpetrators. Id. But the

court held that the language of the statute “permits no other interpretation” when

the two emphasized clauses were read together. Id. The court observed that the

statute requires “intentional conduct of ‘the’ defendant–perpetrator.” Id. “[B]y


                                           -6-
#26000 - #26009

using ‘the’ as opposed to ‘a’ when referencing defendants, the Legislature limited

the class of potential defendants subject to [the extended statute of limitations].”

Id. The court also relied on the limiting language requiring “intentional conduct.”

Id. at 877. Unlike other courts reaching contrary conclusions based on public policy,

Kelly relied on the “plain and ordinary meaning” of these statutory limitations. Id.

[¶10.]         Before a legislative amendment, the court in Debbie Reynolds

Professional Rehearsal Studios v. Superior Court, 30 Cal. Rptr. 2d 514 (Cal. Ct.

App. 1994), concluded that the California statute was also limited to those who

engaged in criminal conduct. The California statute applied to actions “for recovery

of damages suffered as a result of childhood sexual abuse.” Id. at 518 n.3 (citing

Cal. Civ. Proc. Code § 340.1 (West)). The statute also referenced criminal acts by

referring to “any act committed by a defendant against a plaintiff . . . and which act

would have been proscribed” by specified penal code sections. Id. at 519. The court

concluded that these “plain terms” applied “only to those defendants who

perpetrate, against minors, certain intentional criminal acts prohibited by law.” Id.

“[T]he Legislature, in defining what constitutes sexual abuse, referred to the

criminal statutes to make clear that childhood sexual abuse is an intentional rather

than a negligent act.” Id. 6




6.       Four years after Debbie Reynolds, California amended its statute to provide
         that it applied to “an action for liability against any person or entity who
         owed a duty of care to the plaintiff, where a wrongful or negligent act by that
         person or entity was the legal cause of the childhood sexual abuse which
         resulted in the injury to the plaintiff.” Cal. Civ. Proc. Code § 340.1(a)(2)
         (West 1999).


                                            -7-
#26000 - #26009

[¶11.]       The Eighth Circuit Court of Appeals considered a Missouri statute of

limitations that applied to “[a]ny action to recover damages from injury or illness

caused by childhood sexual abuse.” Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir.

2011). Notwithstanding this broad language, the court rejected the argument that

the statute applied to all actions arising from childhood sexual abuse. Id. The court

pointed out that another provision provided that childhood sexual abuse was “any

act committed by the defendant against the plaintiff which act . . . would have been

a violation of [identified criminal proscriptions].” Id. The court noted that non-

perpetrating defendants could not cause injury or illness from childhood sex abuse

because non-perpetrating defendants would not have committed one of the

enumerated criminal acts. Id.

[¶12.]       We find these decisions persuasive because the South Dakota

Legislature adopted the same or similar limitations. First, the plaintiff’s civil

“action” must be based on “intentional conduct.” SDCL 26-10-25. Second, the

childhood sexual abuse must have been committed by “the defendant” in the civil

action, and the abuse must be an act that would “have constituted a felony.” SDCL

26-10-29. We have previously recognized that the language of SDCL 26-10-25

applies to intentional, criminal acts. “[T]he Legislature intended SDCL 26-10-25 to

apply to all acts of intentional childhood sexual abuse conduct. This is so because

SDCL 26-10-29 defines childhood sexual abuse as ‘any act’ committed by a

defendant which act would have been a violation of SDCL [chapter] 22-22 (sex

offenses) or prior laws of similar effect at the time the act was committed which act




                                          -8-
#26000 - #26009

would have constituted a felony.” Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶ 15, 567

N.W.2d 220, 223 (emphasis added).

[¶13.]         The students’ reliance on Almonte, Werre, and C.J.C. is misplaced.

Almonte was based on the belief that the Connecticut statute was more concerned

with a particular type of harm than with the party that caused the harm. 851 F.

Supp. at 37. Therefore, the court utilized “public policy” to extend the reach of the

statute to non-perpetrators who had not engaged in intentional conduct. Id. 7

Further, the Connecticut statute did not contain the intentional conduct or the

criminal act limitations found in the South Dakota statute and the other statutes

previously discussed. The Connecticut language was unlimited. It applied to any

action “to recover damages for personal injury to a minor, including emotional

distress, caused by sexual abuse, sexual exploitation or sexual assault.” Id. The

district court’s interpretation of the broad Connecticut statute is inapposite when

considering the limitations in SDCL 26-10-25 and 26-10-29.




7.       One South Dakota federal district judge adopted the Almonte public policy
         view, concluding that SDCL 26-10-25 applied to causes of action for
         negligence against non-perpetrating defendants. See DeLonga v. Diocese of
         Sioux Falls, 329 F. Supp. 2d 1092, 1104 (D.S.D. 2004) (stating that the
         statute is concerned with the “type of harm” involved, and the statute should
         be interpreted to apply to causes of actions for negligence in order to “provide
         protection for victims of sexual abuse”). However, in a later case, another
         South Dakota federal judge was “unable to predict the path of South Dakota
         law regarding claims against non-perpetrator defendants with respect to
         SDCL 26-10-25.” Joseph v. Corp. of the President Church of Jesus Christ of
         Latter-Day Saints, No. CIV. 06-4143, 2008 WL 282163, at *4 (D.S.D. Jan. 31,
         2008). Although the latter judge certified the question to this Court, the suit
         was apparently resolved before we could decide the question.


                                            -9-
#26000 - #26009

[¶14.]       The students point out that in Werre, the Montana Supreme Court

allowed an action against a non-perpetrator under language that is similar to South

Dakota’s. See Werre, 913 P.2d at 630 (construing a statute of limitations that

applied to actions “based on intentional conduct brought by a person for recovery of

damages for injury suffered as a result of childhood sexual abuse”). The Montana

court construed the language “based upon intentional conduct” to permit actions

based on negligence. Id. at 632. It did so because, in its view, “an action is ‘based

on intentional conduct’ if intentional sexual abuse is the starting point or

foundation for the claim.” Id. But the Montana court’s factual “starting point or

foundation” analysis overlooks the fact that statutes of limitation are based upon

the “cause of action” asserted rather than the factual starting point or foundation

that may lead to various causes of action. See SDCL 15-2-1 (providing that all civil

actions must be commenced within the periods of limitation specified in Title 15

after the “cause of action” has “accrued,” rather than the period after the factual

starting point that gives rise to the cause of action).

[¶15.]       The appropriate analysis looks to the “nature of the cause of action or

the right sued upon.” Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D. 1990). In this

case, the nature of the students’ causes of action against the perpetrators is based

upon intentional conduct. Further, the right sued upon is the right to be free from a

perpetrator’s criminal sexual abuse. But the nature of the students’ causes of action

against the entity defendants is based upon negligence, breach of fiduciary duty,

and vicarious liability. And the rights sued upon are the rights to be free from non-

intentional breaches of the civil duties and responsibilities the law imposes in


                                          -10-
#26000 - #26009

certain relationships. Therefore, it is simply too far of a stretch to say that causes

of action for negligence, breach of fiduciary duty and vicarious liability are, in any

legal sense of the phrase, causes of action “based on” intentional, criminal conduct.

We believe Werre’s factual starting-point-foundational analysis is at odds with the

common understanding of the nature of a cause of action asserted in a particular

case. 8

[¶16.]          The students’ reliance on the Washington court’s analysis in C.J.C. is

also misplaced. Although that statute is closely aligned with South Dakota’s

statute, the Washington Supreme Court applied the same factual starting point

analysis utilized in Werre. C.J.C., 985 P.2d at 267 (concluding that “an action is

‘based on intentional conduct’ if intentional sexual abuse is the starting point or

foundation of the claim”). For the reasons expressed in our analysis of Werre, we

decline to follow C.J.C.’s factual starting point analysis. We also decline to follow

C.J.C. because its conclusion was based in part on another statutory provision that

“expressly include[d] within its scope suits against negligent entities.” 985 P.2d at

268.

[¶17.]          “Words and phrases in a statute must be given their plain meaning

and effect.” Pete Lien & Sons, Inc. v. City of Pierre, 1998 S.D. 38, ¶ 9, 577 N.W.2d

330, 331. In this case, the plain language of SDCL 26-10-25 and 26-10-29 requires

that the students’ causes of action be based on “intentional conduct” and that “the

defendant” in the civil action has engaged in child sexual abuse proscribed by South



8.        Werre is also inapplicable because the Montana statute did not have the
          South Dakota language referencing acts constituting criminal conduct.

                                           -11-
#26000 - #26009

Dakota’s criminal code. Because the students’ causes of action only assert liability

for negligence, breach of fiduciary duty, and vicarious liability, SDCL 26-10-25 does

not apply. 9

[¶18.]         SDCL 26-10-25 was enacted to provide childhood sexual abuse victims

with extended time to commence their suits in addition to the three-year

“occurrence rule . . . provided under SDCL 15-2-14(3) and 15-2-22 [providing for

tolling during minority].” Stratmeyer, 1997 S.D. 97, ¶ 18, 567 N.W.2d at 224. But


9.       The students argue the 2010 Legislature demonstrated that SDCL 26-10-25
         applies to non-perpetrators because the Legislature amended that statute in
         dealing with a related issue regarding non-perpetrators. “[I]t is well
         established under South Dakota Law that the legislative interpretation of a
         statute through the adoption of a subsequent amendment is not binding on
         this court, though the court may deem it worthy of consideration in
         construing the law.” Hot Springs Indep. Sch. Dist. No. 10 v. Fall River
         Landowners Ass’n, 262 N.W.2d 33, 38 (S.D. 1978).

         The 2010 enactment was a statute of repose that abolished the right of
         persons who reached the age of forty to recover damages from non-
         perpetrators of childhood sexual abuse. See 2010 S.D. Sess. Laws ch. 141.
         The students contend that, by amending SDCL 26-10-25 to include the
         statute of repose specifically governing non-perpetrators, the 2010
         amendment demonstrates that the Legislature believed its 1991 enactment of
         SDCL 26-10-25 applied to non-perpetrators. However, it is more likely that
         the 2010 Legislature was reacting to recent case law. There is no dispute
         that lawyers involved in this and related litigation appeared before the 2010
         Legislature requesting the 2010 amendment. At that time, two South
         Dakota courts had ruled that SDCL 26-10-25 applied to non-perpetrators: the
         circuit court in these cases and DeLonga, 329 F. Supp. 2d 1092. Because the
         Legislature was unaware that these courts had incorrectly interpreted the
         statute, it is more likely that the 2010 Legislature was amending SDCL 26-
         10-25 to conform to those court decisions than it was expressing its view of
         what the 1991 Legislature intended when it enacted SDCL 26-10-25. “The
         legislative intent that is controlling in the construction of a statute has
         reference to the [L]egislature which enacted it, not a subsequent one.” Hot
         Springs Indep. Sch. Dist., 262 N.W.2d at 39.




                                          -12-
#26000 - #26009

as we have explained, SDCL 26-10-25 does not apply. Therefore, the remaining

question is whether the students’ causes of action are barred by SDCL 15-2-14(3),

the personal injury statute of limitations. “[T]he three year period [in SDCL 15-2-

14(3)] starts to run from the last occurrence of tortious conduct, rather than three

years from the discovery of the harm.” Koenig v. Lambert, 527 N.W.2d 903, 905

(S.D. 1995), overruled on other grounds by Stratmeyer, 1997 S.D. 97, 567 N.W.2d

220.

[¶19.]         In this case, the students’ causes of action expired under SDCL 15-2-

14(3) and SDCL 15-2-22 more than twenty years before the students commenced

their suits. There is no dispute that all of the students were born between 1941 and

1962, and none of the students made any claim for abuse occurring after 1975.

Although SDCL 15-2-22 tolled the three-year period until one year after each of the

students turned eighteen, the youngest student turned nineteen in 1981 and all

suits were commenced in and after 2004. Therefore, none of the students

commenced his or her cause of action until more than twenty years after the time

for filing suit had expired. Because the students’ causes of action were barred by

the applicable statutes of limitation, 10 the judgment of the circuit court is affirmed.




10.      On petition for rehearing, the students contend that we overlooked their
         argument that the time to commence their actions was tolled by fraudulent
         concealment. The students’ appellate briefs, however, contained no citations
         to facts in the record supporting their argument. Instead, students argued
         that the circuit court’s rulings were inconsistent and supported fraudulent
         concealment. The failure to cite the complete factual record supporting a
         fraudulent concealment argument is significant because more than three
         decades passed since any confidential relationship existed between the
         students and the school. Without citations to facts in the record reflecting
                                                               (continued . . .)
                                            -13-
#26000 - #26009

[¶20.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




________________________
(. . . continued)
         fraudulent concealment for this lengthy period of time, we were unable to
         entertain the issue.

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