#26939 – #26944-aff in pt, rev in pt & rem-JKK
2015 S.D. 22

                                      IN THE SUPREME COURT
                                              OF THE
                                     STATE OF SOUTH DAKOTA
                                                     ****
                                                    (#26939)

KERWIN EAGLEMAN and
NOAH C. ONE STAR,                                                      Plaintiffs,

        and

RALPH EAGLEMAN, LAWRENCE FORD,
ANTOINETTE (ONE STAR) MILLER,                                          Plaintiffs and Appellants,

        v.

DIOCESE OF RAPID CITY,                                                 Defendant,


WISCONSIN PROVINCE OF THE
SOCIETY OF JESUS, DIOCESE OF
RAPID CITY and ROSEBUD
EDUCATIONAL SOCIETY/ST. FRANCIS
MISSION,                                                               Defendants and Appellees.

---------------------------------------------------------------------------------------------------------------------
                                                     (#26940)

IDA MARSHALL,                                                          Plaintiff and Appellant,

        v.

WISCONSIN PROVINCE OF THE
SOCIETY OF JESUS and ROSEBUD
EDUCATIONAL SOCIETY/ST. FRANCIS
MISSION,                                                               Defendants and Appellees.
                                                     ****
                          APPEAL FROM THE CIRCUIT COURT OF
                            THE SEVENTH JUDICIAL CIRCUIT
                          PENNINGTON COUNTY, SOUTH DAKOTA
                                                     ****
                            THE HONORABLE RODNEY J. STEELE
                                     Retired Judge
                                                     ****
                                                                       ARGUED OCTOBER 7, 2014
                                                                       OPINION FILED 04/15/15
---------------------------------------------------------------------------------------------------------------------
                                                    (#26941)

WENDELL D. BIG CROW, SR.,                                              Plaintiff and Appellant,

        v.

WISCONSIN PROVINCE OF THE
SOCIETY OF JESUS and ROSEBUD
EDUCATIONAL SOCIETY/ST. FRANCIS
MISSION,                                                               Defendants and Appellees.

---------------------------------------------------------------------------------------------------------------------
                                                    (#26942)

REGINA ONE STAR,                                                       Plaintiff and Appellant,

        v.

WISCONSIN PROVINCE OF THE
SOCIETY OF JESUS, BROTHER
PAUL A. FREY; BROTHER CHAPMAN; and
ROSEBUD EDUCATIONAL SOCIETY/
ST. FRANCIS MISSION,                                                   Defendants and Appellees.

---------------------------------------------------------------------------------------------------------------------
                                                    (#26943)

DAVID STANDING SOLDIER,                                                Plaintiff and Appellant,

        v.

WISCONSIN PROVINCE OF THE
SOCIETY OF JESUS, FATHER
KEN WALLEMAN; and ROSEBUD
EDUCATIONAL SOCIETY/
ST. FRANCIS MISSION,                                                   Defendants and Appellees.

---------------------------------------------------------------------------------------------------------------------
                                                    (#26944)

D.M.,                                                                  Plaintiff,


A.L.; L.T.; H.D.G.,                                                    Plaintiffs and Appellants,

        v.

DIOCESE OF RAPID CITY,                                                 Defendant,
WISCONSIN PROVINCE OF THE
SOCIETY OF JESUS, DIOCESE OF
RAPID CITY; ROSEBUD EDUCATIONAL
SOCIETY/ST. FRANCIS MISSION;
SISTERS OF ST. FRANCIS, DENVER,
COLORADO; HOLY ROSARY MISSION;
BROTHER FRANCIS P. CHAPMAN,
SISTER MARIA GORETTI;
FATHER ALBERT JANKA;
FATHER BERNARD FAGAN,                       Defendants and Appellees.

                                     ****

GREGORY A. YATES
MICHAEL SHUBECK of
Law Offices of Gregory A. Yates
Rapid City, South Dakota                    Attorneys for plaintiffs and
                                            appellants.


BARBARA ANDERSON LEWIS
THOMAS G. FRITZ of
Lynn, Jackson, Shultz & Lebrun, PC
Rapid City, South Dakota                    Attorneys for defendants and
                                            appellees Rosebud Education
                                            Society/St. Francis Mission.


TERRY L. PECHOTA
Rapid City, South Dakota                    Attorney for defendants and
                                            appellees Wisconsin Province of
                                            the Society of Jesus.
#26939 – #26944

KONENKAMP, Retired Justice

[¶1.]        This appeal requires us to construe statutes of limitation affecting

childhood sexual abuse claims against entities that allegedly failed to take steps to

safeguard children from known or suspected molesters. Plaintiffs allege that they

were sexually abused sometime during the late 1950s through the early 1970s by

certain priests, brothers, nuns, and others when they were children attending St.

Francis Mission School on the Rosebud Indian Reservation. The school was

operated by the Wisconsin Province of the Society of Jesus and the Rosebud

Educational Society/St. Francis Mission (the Societies). In granting summary

judgment for the Societies, the circuit court ruled that (1) plaintiffs’ suits were

barred by the 2010 amendment to SDCL 26-10-25 setting an age limit for claimants

to bring suit; (2) plaintiffs failed to demonstrate a material issue of fact in dispute

that the Societies committed intentional criminal conduct against plaintiffs; and (3)

on their personal injury claims, plaintiffs failed to establish fraudulent concealment

necessary to toll the three-year statute of limitations under SDCL 15-2-14(3).

                                     Background

[¶2.]        After our decisions in Zephier v. Catholic Diocese of Sioux Falls, 2008

S.D. 56, 752 N.W.2d 658, and Bernie v. Blue Cloud Abbey, 2012 S.D. 64, 821 N.W.2d

224, plaintiffs amended their complaints for a third time, adding that the statute of

limitations was tolled under SDCL 26-10-25 because the Societies “perpetrated the

actual act[s] of sexual abuse” by assisting, harboring, concealing, aiding, and

abetting the abuse in violation of SDCL 22-22-46 and SDCL 22-3-3. Plaintiffs also

alleged that the statute of limitations under SDCL 15-2-14(3) was tolled because the


                                           -1-
#26939 – #26944

Societies fraudulently concealed the sexual misconduct, which prevented plaintiffs

from discovering their personal injury causes of action against the Societies.

[¶3.]         The Societies jointly moved for summary judgment. Relying on this

Court’s decision in Bernie, the circuit court concluded that the Societies could not be

linked to intentional conduct, and thus the tolling provisions of SDCL 26-10-25 did

not apply. See 2012 S.D. 64, ¶ 17, 821 N.W.2d at 230. Further, the court held that

the 2010 amendment to SDCL 26-10-25, barring the recovery of damages for

childhood sexual abuse sought by those reaching age forty, was not unconstitutional

and applied retroactively to plaintiffs’ claims against the Societies. Lastly, the court

ruled that plaintiffs failed to present a material issue of fact in dispute to support

their claim that the Societies fraudulently concealed plaintiffs’ causes of action.

[¶4.]         On appeal, plaintiffs contend that the circuit court erred in granting

summary judgment because (1) if the Legislature intended HB 1104 (the 2010

amendment to SDCL 26-10-25) to apply to plaintiffs’ pending litigation, it is

unconstitutional; (2) the Societies engaged in intentional criminal acts as defined by

SDCL 26-10-29; (3) the Societies failed to establish that plaintiffs discovered or

should have discovered their causes of action against the Societies sooner than

three years before filing suit under SDCL 26-10-25; and (4) the statute of

limitations was tolled by the Societies’ fraudulent concealment. 1




1.      This is an appeal of six cases with the following ten plaintiffs: Ralph
        Eagleman, Lawrence Ford, Antoinette Miller, Adrian Larvie, Larry Tar,
        Howard Dean Graham, David Standing Soldier, Ida Marshall, Regina One
        Star, and Wendell D. Big Crow, Sr.

                                           -2-
#26939 – #26944

                                Analysis and Decision

[¶5.]         When we review a summary judgment, we resolve disputed facts in

favor of the nonmoving party and decide whether the lower court properly granted

judgment as a matter of law. Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 11,

707 N.W.2d 123, 126. If the nonmoving party will bear the burden of proof at trial

on a dispositive issue, that party must, “by . . . affidavits, or by ‘the depositions,

answers to interrogatories, and admissions on file,’ designate ‘specific facts showing

that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324,

106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); SDCL 15-6-56(e). “[S]ummary

judgment is mandated against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” One Star v. Sisters of St. Francis,

2008 S.D. 55, ¶ 9, 752 N.W.2d 668, 674.

              1. Constitutionality of 2010 Amendment to SDCL 26-10-25

[¶6.]         In 2010, the Legislature amended SDCL 26-10-25 by adding an age

limit to certain sexual abuse lawsuits: “However, no person who has reached the

age of forty years may recover damages from any person or entity other than the

person who perpetrated the actual act of sexual abuse.” 2010 S.D. Sess. Laws ch.

141, § 1 (HB 1104). All plaintiffs were over age forty when they brought suit

against the Societies. But plaintiffs maintain that the amendment is

unconstitutional as applied to them. They contend that HB 1104 violates the Bill of

Attainder Clause because our Legislature specifically targeted them when it

enacted the amendment, did so in retaliation for plaintiffs’ lawful exercise of their


                                            -3-
#26939 – #26944

rights, and deprived them of their previously enjoyed right to bring suit against the

Societies. See U.S. Const. art. I, § 9, cl. 3; S.D. Const. art. VI, § 22.

[¶7.]         The United States Supreme Court has defined a bill of attainder as “a

legislative act which inflicts punishment without a judicial trial.” Cummings v.

Missouri, 71 U.S. 277, 323, 18 L. Ed. 356 (1866). Historically, a bill of attainder

“was a device often resorted to in sixteenth, seventeenth and eighteenth century

England” for condemning “to death one or more specific persons” who had

purportedly “attempted, or threatened to attempt, to overthrow the government.”

United States v. Brown, 381 U.S. 437, 441, 85 S. Ct. 1707, 1711, 14 L. Ed. 2d 484

(1965). Identical to the bill of attainder was the “bill of pains and penalties,” which

“prescribed a penalty short of death[.]” Id. Once written into the Constitution, the

Bill of Attainder Clause was used as “a general safeguard against legislative

exercise of the judicial function, or more simply — trial by legislature.” Id. at 442,

85 S. Ct. at 1711-12.

[¶8.]         The Supreme Court rejected “a narrow historical reading (which would

exclude bills of pains and penalties)” and instead interpreted the Clause “in light of

the evil the Framers had sought to bar: legislative punishment, of any form or

severity, of specifically designated persons or groups.” Id. at 447, 85 S. Ct. at 1714.

Thus, the “deprivation of any rights, civil or political, previously enjoyed,” could

constitute a bill of attainder depending on “the circumstances attending and the

causes of the deprivation[.]” Id. (quoting Cummings, 71 U.S. at 320). Under the

most current interpretations, “a law is prohibited if it (1) applies with specificity,

and (2) imposes punishment.” BellSouth Corp. v. F.C.C., 162 F.3d 678, 683 (D.C.


                                            -4-
#26939 – #26944

Cir. 1998); see Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S.

841, 850-51, 104 S. Ct. 3348, 3354, 82 L. Ed. 2d 632 (1984); Foretich v. United

States, 351 F.3d 1198, 1217 (D.C. Cir. 2003); WMX Techs., Inc. v. Gasconade Cnty.,

105 F.3d 1195, 1202 (8th Cir. 1997). Specificity is established when an enactment

singles out individuals or easily ascertainable members of a group. See Foretich,

351 F.3d at 1217.

[¶9.]        Here, HB 1104 neither named plaintiffs nor singled them out. This

law applies against all persons over forty years of age seeking to bring suit against

nonperpetrators of child sexual abuse. It legislates with respect to certain

characteristics (over forty, suits against nonperpetrators) and not with respect to a

certain group. See, e.g., Brown, 381 U.S. at 455, 85 S. Ct. at 1718. Even if we

assume that plaintiffs meet the specificity element, that alone will not render a law

unconstitutional as a bill of attainder. “[A] law may be so specific as to create a

‘legitimate class of one’ without amounting to a bill of attainder unless it also

satisfies the ‘punishment’ element of the analysis.” Foretich, 351 F.3d at 1217

(quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 472, 97 S. Ct. 2777, 2805, 53

L. Ed. 2d 867 (1977)). The punishment inquiry implicates a three-part test: “(1)

whether the challenged statute falls within the historical meaning of legislative

punishment; (2) whether the statute, ‘viewed in terms of the type and severity of

burdens imposed, reasonably can be said to further nonpunitive legislative

purposes’; and (3) whether the legislative record ‘evinces a congressional intent to

punish.’” Id. at 1218 (quoting Selective Serv. Sys., 468 U.S. at 852, 104 S. Ct. at

3355).


                                          -5-
#26939 – #26944

[¶10.]          HB 1104 does not fall within the historical meaning of legislative

punishment because, in addition to not imposing death or pains and penalties, the

law does not “mark specified persons with a brand of infamy or disloyalty.” See id.

at 1220. The enactment does not bar any and all redress for victims over forty years

old, but only limits sexual abuse claims against nonperpetrators. Moreover, HB

1104 can reasonably be said to further a nonpunitive legislative purpose because, by

abolishing a plaintiff’s right to recover damages from a nonperpetrator for childhood

sexual abuse after a plaintiff reaches age forty, the Legislature acted to prevent

stale claims.

[¶11.]          On the final inquiry, “‘whether the legislative record evinces [an]

intent to punish[,]’” we examine “legislative history, the context or timing of the

legislation, or specific aspects of the text or structure of the disputed legislation.”

Id. (quoting Nixon, 433 U.S. at 478, 97 S. Ct. at 2808). There must be

“unmistakable evidence of punitive intent[.]” Flemming v. Nestor, 363 U.S. 603,

619, 80 S. Ct. 1367, 1377, 4 L. Ed. 2d 1435 (1960); see Selective Serv. Sys., 468 U.S.

at 855 n.15, 104 S. Ct. at 3357 n.15. Isolated statements are insufficient proof of

punitive intent. Foretich, 351 F.3d at 1225 (quoting BellSouth Corp., 162 F.3d at

690). Likewise, the motivation of a few representatives cannot be attributed to the

Legislature as a whole. See Palmer v. Clarke, 408 F.3d 423, 434 (8th Cir. 2005).

[¶12.]          From our review of the legislative history, the timing and context of

the legislation, and the text and structure of the amendment, we see no

unmistakable evidence of punitive intent. Although plaintiffs cite testimony from

the hearings on HB 1104, those statements are isolated and cannot be said to be the


                                            -6-
#26939 – #26944

view of the Legislature as a whole. Moreover, the majority of the statements cited

by plaintiffs are not from legislators, but from an attorney proposing the Bill. “The

judicial function is ‘not to destroy the Act if we can, but to construe it, if consistent

with the will of Congress, so as to comport with constitutional limitations[.]’” See

Selective Serv. Sys., 468 U.S. at 850, 104 S. Ct. at 3354 (quoting CSC v. Nat’l Ass’n

of Letter Carriers, 413 U.S. 548, 571, 93 S. Ct. 2880, 2893, 37 L. Ed. 2d 796 (1973)).

HB 1104 is not a bill of attainder.

[¶13.]        Plaintiffs next contend that because HB 1104 is a statute of repose, the

Legislature was constitutionally required to provide a grace period for the filing of

claims. They further assert that under SDCL 2-14-24 it would be unconstitutional

to apply HB 1104 to bar their claims against the Societies because plaintiffs

commenced their lawsuits before the effective date of the amendment. That statute

provides: “[n]o action or proceeding, civil or criminal, commenced before the code of

laws enacted by § 2-16-13 took effect and no right accrued are affected by its

provisions, but the proceedings thereunder must conform to the requirements of

such code as far as applicable.” Id.

[¶14.]        This Court has not before addressed the constitutionality of a statute

of repose applied against a plaintiff whose suit was brought before the statute went

into effect and when the Legislature did not clearly express its intent that the law

operate against pending litigation. We have, however, declined to apply an

amended statute to a pending case when the amendment revised the time

limitation for actions under a contract but did not go into effect until after the

action was commenced. See Sheehan v. United Pac. Ins. Co. (Sheehan II), 439


                                            -7-
#26939 – #26944

N.W.2d 117, 118 (S.D. 1989). We declined to give the statute retroactive effect

because the Legislature did not clearly express its intent and because, “‘under

SDCL 2-14-24, no civil action commenced before the present code of laws took effect

is affected by its provisions.’” Id. (quoting First Nat’l Bank of Minneapolis v. Kehn

Ranch, Inc., 394 N.W.2d 709, 716 (S.D. 1986)) (emphasis omitted).

[¶15.]       The Societies respond that because we previously ruled that the

extended limitations period in SDCL 26-10-25 applied retroactively to perpetrators

of child sexual abuse, the 2010 amendment barring persons age forty or older from

pursuing their claims should apply retroactively as well. See Stratmeyer v.

Stratmeyer, 1997 S.D. 97, ¶ 21, 567 N.W.2d 220, 224. It is true that this Court has

held more than once that “statutes [affecting] remedy or procedure as opposed to

those affecting substantive rights are given retroactive effect.” Lyons v. Lederle

Labs., 440 N.W.2d 769, 770 (S.D. 1989) (citing Brookings Cnty. v. Sayre, 53 S.D.

350, 354, 220 N.W. 918, 920 (1928)); see also Simpson v. Tobin, 367 N.W.2d 757, 765

(S.D. 1985). “Statutes of limitation are remedial[.]” Lyons, 440 N.W.2d at 770. Yet

we have never held that a newly enacted limitations period applies retroactively to

a pending lawsuit.

[¶16.]       Our Legislature did not express an intent that HB 1104 apply to

pending litigation; thus, like our decision in Sheehan II, we think it unsound to

apply HB 1104 to abruptly terminate plaintiffs’ pending suits against the Societies.

See Phillips v. Johnson, 599 N.E.2d 4, 8 (Ill. App. Ct. 1992); see also Brown v.

Angelone, 150 F.3d 370, 374 (4th Cir. 1998); Boggs v. Adams, 45 F.3d 1056, 1062-63

(7th Cir. 1995); Groch v. Gen. Motors Corp., 883 N.E.2d 377, 409-10 (Ohio 2008).


                                          -8-
#26939 – #26944

Plaintiffs commenced these actions before HB 1104 went into effect and “basic

concepts of justice, fairness and equity militate . . . against retroactive application”

of the amendment to these cases. See Phillips, 599 N.E.2d at 8. We must therefore

determine, under SDCL 26-10-25, whether the record supports any genuine issue of

material fact showing that the Societies committed intentional criminal acts against

plaintiffs.

              2. Intentional Criminal Conduct under SDCL 26-10-25

[¶17.]        In Bernie, we concluded that “SDCL 26-10-25 extended the time to

commence certain actions involving childhood sexual abuse.” 2012 S.D. 64, ¶ 3, 821

N.W.2d at 226 (emphasis added). “Childhood sexual abuse” is defined in SDCL 26-

10-29 as “any act committed by the defendant against the complainant who was less

than eighteen years of age at the time of the act and which act would have been a

violation of chapter 22-22 or prior laws of similar effect at the time the act was

committed which act would have constituted a felony.” See also Bernie, 2012 S.D.

64, ¶ 12, 821 N.W.2d at 229; Stratmeyer, 1997 S.D. 97, ¶ 15, 567 N.W.2d at 223.

Plaintiffs contend there is a genuine issue of material fact on whether the Societies

caused and knowingly permitted minors to be abused, and assisted, harbored,

concealed, and provided false information about sex offenders. See SDCL 22-22-

24.3 (sexual exploitation of a minor); SDCL 22-22-46. Because neither SDCL 22-22-

24.3 nor SDCL 22-22-46 were in effect when plaintiffs claim they were sexually

abused (from the late 1950s to the early 1970s), they direct us to “prior laws of

similar effect at the time” the acts were committed: SDC 1939, 13.0203 (aiding and

abetting), SDC 1939, 13.2801 (statutory rape), SDC 1939, 13.2803 (rape), SDC


                                           -9-
#26939 – #26944

Supp. 1960, 13.1727 (indecent molestation of a minor), SDCL 22-22-5 (1972) (rape).

See SDCL 26-10-29.

[¶18.]       As evidence that the Societies perpetrated intentional criminal

conduct, plaintiffs quote certain letters and documents. These materials, plaintiffs

contend, demonstrate that the Societies had knowledge of “widespread and long

lasting abuse” constituting criminal conduct, and the Societies intentionally

assisted, harbored, and concealed the perpetrators. In a letter from July 1968, the

Consultor of the House at St. Francis reported Brother Francis Chapman’s problem

with “drinking to excess” and “fooling around with little girls — he had them down

in the basement of our building in the dark where we found a pair of panties torn,

and then giving out food, smokes, etc. excessively at the back door.” The letter went

on, “[W]hat I am concerned about is whether he is mentally sick — the girl situation

is known in the sense that he is around little girls very much[.]” The Consultor

spoke to Brother Chapman on this subject: “I had a nice talk with him on these

points and he took it all nicely.”

[¶19.]       Another letter from St. Francis in October 1968 repeated concerns

about Brother Chapman: “Harry talked with him about the little girls and handouts

again.” Then, in January 1970, the Consultor reported that Brother Chapman “has

made a remarkable comeback. He is a new man. His work is excellent, most

helpful, and he has displayed a wonderful spirit of charity. I can only say that he is

a new man in every way. He deserves a great deal of credit for being humble and

changing as he has done.” In July of that same year, similar accounts about

Brother Chapman reported: “He is most cheerful, cooperative, pleasant, helpful — I


                                         -10-
#26939 – #26944

can hardly know of anyone who has changed so much for the good in such a short

time. He is to be commended. All the points that he was warned about have been

observed.”

[¶20.]       Yet, in January 1971, Brother Chapman’s superior wrote, “There was

one incident involving Brother Chapman similar to those of the past which brought

into question the prudence of his remaining here at St. Francis. But in view of the

fact of his generally improved spirit and his notable contribution to community life,

the decision was made to counsel with him rather strongly in the hope that future

incidents would be avoided.” Still, similar concerns were again expressed in

February 1973 — Brother Chapman does have “some difficulty with little girls[.]”

Plaintiffs Ida Marshall, Antoinette Miller, and Adrian Larvie recount repeated

abuse by Brother Chapman.

[¶21.]       Plaintiffs also point to correspondence between Father Bernard D.

Fagan and his superiors. On October 11, 1984, referring to a recent meeting they

had, Father Patrick J. Burns, the Jesuit Order Provincial for the Wisconsin

Province in Milwaukee, wrote to Father Fagan about treatment for “sexual

addictions.” Father Fagan was warned that he “must be open to doing something

more than you are presently doing to break your pattern.” As the Provincial,

Father Burns saw it as his responsibility “to do whatever I in the end judge

necessary to put an absolute halt to the inappropriate behavior which we all realize

gravely endangers the good name of the Society and the Catholic Church and could

at any time put an end to your ministry as a Jesuit and as an active Catholic

priest.” Father Fagan responded: “Especially jolting was the thought of possible


                                         -11-
#26939 – #26944

dismissal from the Society and suspension from the active priesthood. Such a

consequence is the farthest thing from my whole life’s hope and desire.” He

informed Father Burns that he was “seeing a behavioral modification therapist at

Yankton.” He added, “[I]t has become apparent both to [the therapist] and to me

that your letter seems to have been a significant factor in ‘breaking the pattern.’”

[¶22.]       In a 1994 letter to the Vicar General of the Diocese of Rapid City,

Father Fagan summarized his past sexual misconduct. He wrote that while he was

the director of the St. Francis Mission in the late 1970s, he engaged in “sexual

activity with Native American girls.” He reported that the sexual activity occurred

approximately eighteen times between 1977 and 1980, with approximately “twelve

girls” in “unrelated events.” These “girls,” in Father Fagan’s description, were all

“of the type who had a reputation for drinking and promiscuity.” He claimed that

he was “very open in discussing [his] sexual problems with [his] superior, spiritual

director, and provincial.” After he took a sabbatical in 1980–81, he was stationed at

Isaac Jogues Church in Rapid City, where he said, “The same pattern continued

involving Native American girls I would pick up along the streets.” He also

reported that he “was very much aware of the danger of scandal which would occur

if the situation became public,” and to his knowledge it never did become public. He

was sent for treatment to the House of Affirmation and resided there from

November 1982 until March 1983. Afterwards, “a couple of relapses with Indian

girls who [he] picked up along the streets in the Winner area” prompted his

superiors to require him to seek treatment with a behavioral psychologist. He

reported that no sexual acting out occurred after 1983. One plaintiff, Larry Tar,


                                         -12-
#26939 – #26944

alleged that Father Fagan fondled him from 1968–1971. Nothing in these letters or

in any other evidence produced here suggests that the Societies knew of Father

Fagan’s misconduct, if any there was, during the time Larry Tar alleged he was

molested. Moreover, aside from his reference to “girls,” there was no indication that

Father Fagan was molesting children or students at St. Francis Mission.

[¶23.]       On summary judgment we must view the evidence most favorably to

plaintiffs, but conclusory and speculative assertions are insufficient: plaintiffs must

present specific facts showing that a genuine issue exists for trial. See U.S. Bank

Nat’l Ass’n v. Scott, 2003 S.D. 149, ¶ 39, 673 N.W.2d 646, 657. There is no evidence

in the record that the Societies engaged in intentional criminal conduct against

these plaintiffs, which occurred when plaintiffs were less than eighteen years old,

and which constituted childhood sexual abuse. See SDCL 26-10-25; SDCL 26-10-29.

Even assuming that Father Fagan’s 1994 admissions referred to sexual relations

with St. Francis Mission School students — the “Native American girls” are not

further identified — those revelations were given long after the events alleged in

these lawsuits and cannot prove the Societies’ knowledge or participation during

the times plaintiffs allege.

[¶24.]       As for Brother Chapman, on the other hand, the letters are evidence

that the Societies knew of his proclivities, but plaintiffs direct us to no law in effect

between 1950 and 1980 making it equivalent to childhood sexual abuse or a felony

for the Societies to fail to report suspected child abuse. Moreover, the letters do not

show that the Societies participated in any perpetrator’s misconduct or that the

Societies acted with any criminal intent. See State v. Jucht, 2012 S.D. 66, ¶ 27, 821


                                           -13-
#26939 – #26944

N.W.2d 629, 635-36. No genuine issue of material fact supports the allegation that

the Societies aided and abetted Brother Chapman’s abuse: statutory rape, see SDC

1939, 13.2801, or indecent molestation of a minor, see SDC 1960, 13.1727.

Intentional criminal conduct does “‘not include negligently allowing an offense to

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

child.’” See Bernie, 2012 S.D. 64, ¶ 8, 821 N.W.2d at 227 (quoting Sandoval v.

Archdiocese of Denver, 8 P.3d 598, 602 (Colo. App. 2000)). Because there is no

genuine issue of material fact showing that the Societies committed intentional

criminal acts against plaintiffs as defined by SDCL 26-10-29, the circuit court

correctly ruled that SDCL 26-10-25 does not apply.

             3. Discovery of Abuse Before Expiration of Statute of

Limitations

[¶25.]       Because SDCL 26-10-25 is inapplicable here, we need not address

plaintiffs’ third issue — whether the Societies established that plaintiffs discovered

or should have discovered that their injuries or conditions were caused by the

alleged acts of abuse sooner than three years before filing suit under SDCL 26-10-

25.

             4. Tolling of Statute of Limitations for Fraudulent Concealment

[¶26.]       With liability under SDCL 26-10-25 not established, plaintiffs’

personal injury claims are governed by SDCL 15-2-14(3), which provides that a suit

for personal injury must be commenced “within three years after the cause of action

shall have accrued[.]” Because plaintiffs were minors, accrual extended one year

after they reached the age of majority. SDCL 15-2-22. The latest date any plaintiff


                                         -14-
#26939 – #26944

reached the age of 19 was in 1977. Unlike SDCL 26-10-25, no statutory discovery

rule applies to SDCL 15-2-14(3). 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;

Baye v. Diocese of Rapid City, 630 F.3d 757, 760 (8th Cir. 2011).

[¶27.]       All the abuses plaintiffs allege happened decades ago. Brother

Chapman, the subject of several accusations, cannot respond. He died in 1990.

Neither can Father Fagan, another accused perpetrator. He died in 1997. Statutes

of limitation are vital to the timely resolution of disputes and the stability of human

affairs. In setting arbitrary boundaries, these statutes balance protection of valid

claims against preclusion of stale ones. In the words of Justice Holmes, statutes of

limitation “are designed to promote justice by preventing surprises through the

revival of claims that have been allowed to slumber until evidence has been lost,

memories have faded, and witnesses have disappeared.” Am. Pipe & Constr. Co. v.

Utah, 414 U.S. 538, 554, 94 S. Ct. 756, 766, 38 L. Ed. 2d 713 (1974) (quoting Order

of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49, 64 S. Ct. 582, 586,

88 L. Ed. 788 (1944)) (internal quotation mark omitted). Not being mere

technicalities, statutes of limitation require strict compliance. Dakota Truck

Underwriters v. S.D. Subsequent Injury Fund, 2004 S.D. 120, ¶ 17, 689 N.W.2d 196,

201. “[A] defense based on a statute of limitations is meritorious and should not be

regarded with disfavor.” Chipperfield v. Woessner, 84 S.D. 13, 16, 166 N.W.2d 727,

728 (1969), quoted in Burke v. Foss, 334 N.W.2d 861, 864 (S.D. 1983). In accord

with SDCL 15-2-14(3), the time to bring these suits has long expired. Unless each




                                         -15-
#26939 – #26944

plaintiff establishes an exception to the statute of limitations, each claim is barred

on its face.

[¶28.]         Plaintiffs contend that the doctrine of fraudulent concealment, a

common law rule grafted onto the statute of limitations, applies to delay the

limitations period. Fraudulent concealment tolls the statute of limitations until the

claim is discovered or might have been discovered with reasonable diligence.

Strassburg v. Citizens State Bank, 1998 S.D. 72, ¶ 14, 581 N.W.2d 510, 515.

Plaintiffs bear the burden in summary judgment proceedings to establish the

existence of material facts substantiating fraudulent concealment. Koenig, 527

N.W.2d at 905. This doctrine is intended to ensure that defendants cannot take

advantage of their own wrongs by concealing them to permit the limitations period

to expire.

[¶29.]         For a statute of limitations to be tolled for fraudulent concealment,

plaintiffs must prove three elements: (1) the Societies knowingly concealed material

facts that constitute plaintiffs’ causes of action or, being fiduciaries, knowingly

remained silent and failed to disclose those facts despite a duty to do so; (2)

plaintiffs exercised due diligence in attempting to discover their causes of action;

and (3) despite plaintiffs’ due diligence, the Societies’ concealment prevented

plaintiffs from discovering their causes of action. See One Star, 2008 S.D. 55, ¶¶ 32-

34, 752 N.W.2d at 681-82; Hinkle v. Hargens, 76 S.D. 520, 524-25, 81 N.W.2d 888,

891 (1957); see also Doe v. Catholic Bishop for the Diocese of Memphis, 306 S.W.3d

712, 719 (Tenn. Ct. App. 2008). Among the allegations here, plaintiffs aver that the

Societies:


                                           -16-
#26939 – #26944

               did suppress and conceal the true facts, and continue to do so,
               with the intent to prevent plaintiffs and others from learning
               that Brother Chapman, Father Paul Fray, Coach Daniel
               Fullerton, Father Joseph Gill, Father Kowalski, and Father Bob
               had been and were continuing to molest minors; . . . to prevent
               further reports and outside investigations into misconduct by
               [these individuals and the Societies]; . . . [and] to prevent
               discovery of [the Societies’] own fraudulent conduct[.]

With these assertions in mind, we examine, in two groups, the three criteria

necessary to establish fraudulent concealment.

               Group A Plaintiffs

[¶30.]         Group A comprises those plaintiffs alleging sexual abuse by

perpetrators other than Brother Chapman. They are Ralph Eagleman, Lawrence

Ford, Larry Tar, Howard Dean Graham, David Standing Soldier, Regina One Star,

and Wendell D. Big Crow, Sr. 2 These plaintiffs contend that they cannot be held to

have discovered their injuries, when, through the trauma of sexual abuse, they

repressed those memories or failed to appreciate the injuries the abuse caused. In

its memorandum decision, the circuit court concluded that “[i]n these cases it is

evident from the pleadings, depositions, and affidavits that the plaintiffs were

aware of the alleged abuses and the fact that the abusers were clergy of the Catholic

Church from the time the alleged abuses took place. None are cases of repressed

memory[.]” Disputing this, plaintiffs contend that the court failed to address

“uncontested evidence in the affidavits of Howard Graham and Adrian Larvie that




2.       Larry Tar submitted no affidavit or deposition testimony in response to the
         Societies’ motion for summary judgment. Therefore, he has failed to offer
         material facts to raise a genuine, triable controversy on his burden to show
         why fraudulent concealment should toll the statute of limitations.

                                           -17-
#26939 – #26944

they only recently recalled the memories . . . [and failed to] address evidence of

repression by Lawrence Ford, Antoinette Miller, Ralph Eagleman, Regina One Star

and David Standing Soldier.” 3

[¶31.]         It appears the circuit court overlooked this material, though only some

of the plaintiffs claimed to have recently recovered all their memories before

bringing suit. Certain plaintiffs avoided the memories because, according to their

appellate brief, they did so out of “self-blame” and “shame.” Others remembered the

abuse, but only shortly before suit did they began to connect their injuries to the

abuse they suffered. Plaintiffs’ expert, Dr. King, attested that some plaintiffs

avoided or repressed their memories as a psychological coping mechanism and

others only recently connected the abuse to their injuries.

[¶32.]         In any event, the circuit court also concluded that there was “no

evidence in these cases that the [Societies] concealed anything from the plaintiffs

which would have prevented them from timely pursuing their claims.” On this

point of law, Judge Posner, writing in Cada v. Baxter Healthcare Corp., explained

that fraudulent concealment “denotes efforts by the defendant — above and beyond

the wrongdoing upon which the plaintiff’s claim is founded — to prevent the

plaintiff from suing in time.” 920 F.2d 446, 451 (7th Cir. 1990). Accordingly,

plaintiffs must prove the Societies committed fraudulent concealment “above and




3.       Howard Dean Graham did not file a signed, sworn affidavit or any deposition
         testimony. The record contains only an unsigned, undated document labelled
         as his affidavit. For summary judgment purposes, an unsigned and unsworn
         affidavit is a nullity. Pension Benefit Guar. Corp. v. Heppenstall Co., 633
         F.2d 293, 300 (3d Cir. 1980).

                                          -18-
#26939 – #26944

beyond the [alleged torts] upon which [their] claim[s are] founded . . . to prevent

[plaintiffs] from suing in time.” See id.

[¶33.]           In answer to this question, plaintiffs assert that the Societies remained

silent in the face of a fiduciary duty to disclose. 4 No ongoing relationship of trust

and confidence between the Societies and plaintiffs existed after the plaintiffs left

school. Cf. Koenig, 527 N.W.2d at 904 (abusive relationship lasted seventeen years

from the time the parishioner victim was twelve until he was twenty-nine). In the

absence of any other evidence to the contrary, a fiduciary relationship between

plaintiffs and the Societies ended when plaintiffs left school and became adults. See

Zumpano v. Quinn, 849 N.E.2d 926, 930-31 (N.Y. 2006). Thus, any breach of

fiduciary duty had to have arisen during the time plaintiffs were minor students at

St. Francis. 5

[¶34.]           Other than faulting the Societies for failing to inform them of past

abuse, plaintiffs offer no evidence that the Societies’ actions, inactions, or silence

fraudulently led them to forego or delay their claims or led them to believe they had




4.       This case invokes two fiduciary concepts: first, as part of plaintiffs’ claim that
         the Societies breached fiduciary duties as a substantive basis of liability for
         damages; and second, the issue we are dealing with here, as a determiner in
         tolling the statute of limitations for fraudulent concealment.

5.       Plaintiffs allege that the Societies’ fraudulent concealment continues to the
         present, suggesting an indefinite duty to disclose whenever the Societies may
         acquire knowledge of abuse. But, as we noted in One Star, if plaintiffs’
         approach “were to prevail, then any time a tortfeasor failed to disclose
         evidence that would demonstrate its liability in tort, the statute of limitations
         would be tolled under the doctrine of concealment. . . . [T]his is not the law.”
         2008 S.D. 55, ¶ 35, 752 N.W.2d at 682-83 (quoting Mark K. v. Roman
         Catholic Archbishop of Los Angeles, 79 Cal. Rptr. 2d 73 (Cal. Ct. App. 1998)).

                                             -19-
#26939 – #26944

no claims. In fact, plaintiffs do not attest that the Societies’ “silence misled [them]

into believing that the alleged sexual abuse did not occur” or “that it had not been

committed by” the named brothers, priests, and others. 6 See Baselice v. Franciscan

Friars Assumption BVM Province, Inc., 879 A.2d 270, 279 (Pa. Super. Ct. 2005)

(finding no tolling for fraudulent concealment); Doe v. Roman Catholic Archbishop

of Archdiocese of Detroit, 692 N.W.2d 398, 407-08 (Mich. Ct. App. 2004). Nor have

plaintiffs offered evidence that the Societies knew of plaintiffs’ claimed injuries,

much less concealed them. See Baselice, 879 A.2d at 279. Plaintiffs offered no

evidence that “they were lied to by the [Societies] with regard to the identity of their

abusers or their abusers’ place within the [Societies], which if relied upon, would

have caused them to suspend pursuit of their claims.” See Meehan v. Archdiocese of



6.    One possible exception is David Standing Soldier. He testified that he told a
      nun about Father Gill’s abuse. She called him a liar, he said, and sent him to
      Father Gill to be paddled. He also told Father Walleman, who took no action.
      Even if this can be characterized as misrepresentation, Standing Soldier
      never forgot the sexual abuse he suffered at the hands of Father Gill; nor did
      he lack knowledge or appreciation that what he alleged Father Gill did to
      him was abusive. When he was in alcohol treatment in 1986, his counselor
      wanted him to talk with a Catholic priest, as one of the steps toward
      recovery, about why he (Standing Soldier) drank excessively, one reason
      being the sexual and physical abuse, but Standing Soldier refused out of
      anger and distrust. Thus, under our holding in One Star, Standing Soldier
      possessed in 1986 some knowledge of a causal connection between his
      problems and the sexual abuse. That knowledge put him on inquiry notice to
      seek information about the problem and its cause. See One Star, 2008 S.D.
      55, ¶ 20, 752 N.W.2d at 677. Once on inquiry notice, plaintiffs must seek out
      the truth; they cannot wait for the truth to seek them. Mark K., 79 Cal. Rptr.
      2d at 77. Fraudulent concealment will not apply in these circumstances
      because Standing Soldier had sufficient facts to bring a timely cause of action
      within three years of 1986. Even if initial misrepresentations constituted
      fraudulent concealment, such representations will not override a victim’s
      subsequent knowledge. Strassburg, 1998 S.D. 72, ¶ 15, 581 N.W.2d at 516.
      E.W. v. D.C.H., 754 P.2d 817, 821 (Mont. 1988).

                                          -20-
#26939 – #26944

Philadelphia, 870 A.2d 912, 922 (Pa. Super. Ct. 2005). Neither have the plaintiffs

offered evidence that the Societies mischaracterized the alleged abuse as something

other than what it was. See, e.g., Koenig, 527 N.W.2d at 904 (abusing priest

initially used pretense of needing to observe child victim “in the act of his confessed

sin of masturbation”); see also Doe v. Shults-Lewis Child & Family Servs., Inc., 718

N.E.2d 738, 743 (Ind. 1999) (child victim assured by superior that molester was

“just trying to be friendly”); Harkness v. Fitzgerald, 701 A.2d 370, 372 (Me. 1997)

(abuse misrepresented as punishment).

[¶35.]         Lastly, and perhaps most crucially, just as plaintiffs have produced no

evidence that the Societies concealed something from them, so too they have not

shown that the Societies had actual knowledge of the sexual abuse plaintiffs allege.

Ashdown v. Ameron Int’l Corp., 100 Cal. Rptr. 2d 20 (Cal. Ct. App. 2000) (claim of

fraudulent concealment fails if defendant had no knowledge of facts); Catholic

Bishop for Diocese of Memphis, 306 S.W.3d at 719 (essential element: defendant

must be aware of the wrong). In Koenig, by contrast, there was a letter to the

Bishop from the perpetrator priest about “pretty serious” accusations against him

by a fellow priest; other priests and the Bishop were present at parties when the

perpetrator “would become drunk and openly affectionate” with the minor victim;

and “over a period of seventeen years, . . . seventeen different priests heard

confession of the various incidents between” the perpetrator and the victim. 7 527

N.W.2d at 906. Here, the Societies had to have had actual, not imputed, awareness



7.       The Koenig Court did not address the seal of confession or the priest-penitent
         privilege. Cf. Parents of Minor Child v. Charlet, 135 So. 3d 1177 (La. 2014).

                                           -21-
#26939 – #26944

of the facts necessary to establish plaintiffs’ causes of action. 8 Martinelli v.

Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 419-20 (2d Cir. 1999).

[¶36.]         Group A plaintiffs have produced no evidence that the Societies knew,

at or near the time the alleged events occurred, information that they then

fraudulently concealed by act or silence concerning Brother Paul Frey, Coach Daniel

Fullerton, Brother Boschert, Father Joseph Gill, Father Kowalski, Father Bob,

Father Ken Walleman, Father Bernard Fagan, and the other individuals plaintiffs

name in their depositions and pleadings. The 1984 correspondence between Father



8.       We take this opportunity to clarify the knowledge requirement on the part of
         fiduciaries in fraudulent concealment cases. South Dakota originally adopted
         fraudulent concealment as an implied exception to our statutes of limitation
         in Hinkle, 76 S.D. at 525, 81 N.W.2d at 891. In that case, using Iowa law as a
         model, our Court wrote: “Where . . . a trust or other confidential relationship
         does exist between the parties, silence on the part of one having the duty to
         disclose, constitutes fraudulent concealment in the absence of any affirmative
         act.” Id. In later cases, however, language was appended to this formulation,
         to wit: fiduciaries have a duty to disclose what they “knew or should have
         known.” Holy Cross Parish v. Huether, 308 N.W.2d 575, 577 (S.D. 1981)
         (emphasis added). Holy Cross cited a South Dakota United States District
         Court decision for this added language. Canton Lutheran Church v. Sovik,
         Mathre, Sathrum & Quanbeck, 507 F. Supp. 873, 878 (D.S.D. 1981). But the
         district court in Canton gave no explanation and cited no authority, other
         than Hinkle, for the “should have known” phrase. See id. Indiana appears to
         be the only jurisdiction to recognize “constructive” fraudulent concealment.
         See Hughes v. Glaese, 659 N.E.2d 516, 519 (Ind. 1995) (medical malpractice);
         Palmer v. Gorecki, 844 N.E.2d 149, 155 (Ind. Ct. App. 2006) (medical
         malpractice); Spoljaric v. Pangan, 466 N.E.2d 37, 42 (Ind. Ct. App. 1984)
         (medical malpractice). But see Klippel v. Watkins, 667 S.W.2d 28 (Mo. Ct.
         App. 1984) (physicians must have actual knowledge that injury was caused
         by malpractice). Commonly, the words “should have known” are used in
         negligence and due diligence contexts, but fraudulent concealment is a
         species of fraud, and to commit fraud one must be aware of the wrong being
         concealed. Liebergesell v. Evans, 613 P.2d 1170, 1177 (Wash. 1980)
         (fraudulent concealment a species of fraud). As with most other courts, we
         think the better rule applicable to nonperpetrator entities requires proof of
         actual knowledge on the part of those entities.

                                           -22-
#26939 – #26944

Fagan and the Provincial in Milwaukee and Father Fagan’s 1994 summary of his

sexual misconduct concerned events from 1977 to 1983. None of the plaintiffs allege

any abuse against them in those years. And no evidence has been raised to show

that the Societies knew of Father Fagan’s transgressions, if any there were, during

the years alleged by Larry Tar, the only plaintiff who claims that Father Fagan

abused him. As for Brother Frey, plaintiffs insinuate the existence of knowledge

because his “mental condition” and “drinking” were known to the Societies, but

there is no evidence of any knowledge of sexual abuse.

[¶37.]         Accordingly, Group A plaintiffs alleging fraudulent concealment have

failed in their affirmative burden to specify material facts creating a genuine,

triable controversy on the question whether the Societies knowingly concealed

material facts that constitute plaintiffs’ causes of action or, being fiduciaries,

knowingly remained silent and failed to disclose those facts despite a duty to do so.

Because there is no material issue of fact in dispute on whether the Societies

fraudulently concealed Group A plaintiffs’ causes of action, the circuit court ruled

correctly that their suits against the Societies were statutorily barred as untimely

under SDCL 15-2-14(3).

               Group B Plaintiffs

[¶38.]         We are left with the Group B plaintiffs: Ida Marshall, Antoinette

Miller, and Adrian Larvie. 9 Viewing the evidence in a light most favorable to these




9.       In their appellate briefs, plaintiffs continue to cite Marian Sorace’s and Lloyd
         One Star’s abuse claims against Brother Chapman. Their cases are not
         before us. See One Star, 2008 S.D. 55, 752 N.W.2d 668.

                                           -23-
#26939 – #26944

plaintiffs — as we are required to do — over a period of five years, the Societies had

actual knowledge of Brother Chapman’s sexual misconduct with female students.

His superiors knew in 1968 that he had been “fooling around with little girls” while

“in the dark where [they] found a pair of panties torn[.]” They knew three years

later when the same concerns arose, “which brought into question the prudence of

his remaining here at St. Francis.” And they knew two years hence in 1973, when

they learned again he was having “some difficulty with little girls.” Yet Brother

Chapman stayed on at St. Francis the remainder of his life.

[¶39.]        This is relevant, of course, to plaintiffs’ causes of action for negligence

and breach of fiduciary duty. But it also raises a question of fraudulent

concealment. We think there is a genuine issue of material fact on whether the

Societies fraudulently concealed their knowledge of Brother Chapman’s

molestations by not disclosing and warning the students or their parents when

these deviant acts were occurring. A similar fact pattern can be seen in Martinelli,

196 F.3d at 426. In that case, because the Bridgeport Diocese learned that a priest

“had sexually molested boys, at least one of them unidentified, it owed the boys

within the scope of its fiduciary obligations, including [the plaintiff], a duty to

investigate and to warn possible past and future victims of the harm” from this

priest. Id.

[¶40.]        Here, for summary judgment purposes, the first element of fraudulent

concealment has been established: concealment by failing to disclose facts despite a

fiduciary duty to do so. Two more elements must be proved in the fraudulent

concealment analysis. Group B plaintiffs have the burden of showing that the


                                           -24-
#26939 – #26944

claimed fraudulent concealment prevented them from discovering their causes of

action and that they exercised due diligence to discover those causes of action.

Hinkle, 76 S.D. at 524, 81 N.W.2d at 891. We examine each of their claims to

determine whether a genuine issue of material fact exists on these questions.

[¶41.]       Adrian Larvie. In a signed affidavit dated September 18, 2013,

Larvie attested that he “attended St. Francis Mission between ages 5 and 8 and

during or about the years 1962 to 1967.” He recounted sexual abuse at the hands of

Brother Chapman and Sister Maria Goretti. He initiated suit in July 2010. With

respect to his recollection, he said, “Recently, within the last few years, the

memories of the abuse slowly started to surface. It wasn’t until around 2008 that I

finally made the connection between the sexual, physical and emotional abuse I had

endured as a child and how that abuse has affected my whole life.” This is

insufficient. Without supporting facts and details, Larvie offered only conclusory

language to establish due diligence in discovering his causes of action. See Zephier,

2008 S.D. 56, ¶ 3 n.2, 752 N.W.2d at 661 n.2; One Star, 2008 S.D. 55, ¶ 23, 752

N.W.2d at 678. He cannot disburden himself of the due diligence requirement

merely by broadly proclaiming that his memories just recently surfaced. See id.

Moreover, unlike most of the other plaintiffs, no expert opinion corroborated

Larvie’s claim that he recently recovered his memories and recently made the

connection between abuse and injury. Even granting fraudulent concealment on

the part of the Societies — a tenuous assumption since the Societies had no

knowledge of any Brother Chapman misconduct with little boys — Larvie has not

met his burden of showing that the concealment prevented him from discovering his


                                          -25-
#26939 – #26944

causes of action and that he exercised due diligence in attempting to discover those

causes of action. Summary judgment was properly granted in Larvie’s case.

[¶42.]       Ida Grace One Star Marshall. Born on June 29, 1952, she started

the first grade at St. Francis Mission School in 1958 and attended until 1971.

During the school year she was a boarder at the Mission until 1969, when she

entered high school. In the summers while living at home, her mother made her

and her sisters go to Brother Chapman to beg for food. Her mother told her that

otherwise the family would starve. Brother Chapman, who served as a cook, gave

out food, but he exacted a price. He would put his hands inside Marshall’s panties

and rub his penis on her. She witnessed Chapman doing the same things to her

sister, Marian. Marian told their mother of these incidents. Marshall never told

her mother, but she told her father one day at age ten when he found her crying.

On that occasion, Brother Chapman had put her on a table and penetrated her and

it hurt. Her father said nothing when she told him, but afterwards her mother

stopped making her beg for food. In High School she learned that what Brother

Chapman had done was wrong, and she told her grandmother. She coped with her

memories of sexual abuse by “drinking and basically running around. . . . I didn’t

have to think about it.” Dr. King, plaintiffs’ expert witness, found that Marshall

“actively avoided going into any kind of depth in processing” her abuse “and never

made the connection of the abuse to her current and past symptomatology.”

Marshall brought suit in 2004. Taken together with the issue of fact on whether the

Societies breached their fiduciary duties in not disclosing Brother Chapman’s sexual

misconduct with little girls, Marshall’s evidence raises a genuine issue of material


                                         -26-
#26939 – #26944

fact on the questions whether she exercised due diligence to discover her causes of

action and whether the Societies’ breach of their fiduciary duties prevented her

from discovering those causes of action.

[¶43.]       Antoinette One Star Miller. A younger sister to Ida Marshall,

Miller was born on December 6, 1957. She attended St. Frances School starting

with the first grade in 1960 or 1961. She testified in her deposition about the

sexual abuse she suffered at the hands of Brother Chapman when she was eleven

years old. On one occasion he rubbed his penis against her legs until he ejaculated.

Another time, he had her lick peanut butter off his nipples. She testified that the

first time she realized the problems she was having were related to her sexual

abuse “would have been sometime around November 14, 2002.” For years she never

talked about the abuse. She said she did not do something about the abuse before

her lawsuit “[b]ecause I didn’t know how to go about it.” She had probate matters

with lawyers, but she did not know how to engage a lawyer for this. In 2010, Dr.

King corroborated that Miller “cognitively avoided the memories and feelings

related to the abuse until recently.” She initiated her suit in 2004. Although there

is conflicting evidence on whether Miller acted with reasonable diligence to discover

her causes of action, we think the question is too close to resolve as a matter of law.

As with Ida Marshall’s case, these facts are sufficient to create a genuine issue of

material fact on whether the due diligence and causation elements of fraudulent

concealment have been established.

[¶44.]       Both Marshall’s and Miller’s circumstances are distinguishable from

those in One Star. There, Lloyd One Star and Marian Sorace had “actual


                                           -27-
#26939 – #26944

knowledge of the basic operative facts” and “they had actual notice of substantial

injury caused by that abuse” sufficient to bring suit for more than three years before

they commenced it. One Star, 2008 S.D. 55, ¶ 35, 752 N.W.2d at 682. Nine years

before bringing suit in 2004, Sorace had become “aware of both the abuse and some

of the causally related injuries in 1995[,]” when she saw a mental health therapist

and was encouraged to seek further professional help. Id. ¶¶ 21, 26. Likewise, One

Star was “on inquiry notice of the relationship between his condition and its cause”

when he wrote to a newspaper describing how the sexual abuse had affected him.

Id. ¶ 19. But he failed to bring suit within the requisite three years. Here, the facts

are not so clear cut. A trier of fact must determine whether the three elements for

fraudulent concealment have been established sufficiently to toll the statute of

limitations.

                                     Conclusion

[¶45.]         We affirm summary judgment in the cases brought by Ralph

Eagleman, Lawrence Ford, Adrian Larvie, Larry Tar, Howard Dean Graham, David

Standing Soldier, Regina One Star, and Wendell D. Big Crow, Sr. We reverse and

remand the cases brought by Ida Grace One Star Marshall and Antoinette One Star

Miller.

[¶46.]         Affirmed in part, reversed in part, and remanded.

[¶47.]         GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.

[¶48.]         KERN, Justice, not having been a member of the Court at the time this

action was assigned to the Court, did not participate.


                                         -28-
