Scarborough v. Altstatt

BERGER, J. This case involves an appeal of an order of the Circuit Court for Montgomery County granting a motion to dismiss filed by ⁵⁶² appellee Leslie Altstatt (“Altstatt”). Robin Altstatt Scarborough, Alice L. Altstatt, and Carol E. Altstatt, appellants (collectively, “the Appellants”), 1 filed the complaint giving rise to the present appeal, raising various claims relating to injuries allegedly suffered due to childhood sexual abuse perpetrated by their father, Altstatt. Altstatt filed a motion to dismiss, arguing that the Appellants’ claims were barred by the applicable statute of limitations. The circuit court agreed with Altstatt and dismissed the Appellants’ complaint with prejudice.

On appeal, the Appellants present a single question for our review, which we have rephrased as follows: Whether the circuit court erred by ruling that the Appellants’ complaint was barred by the statute of limitations. Altstatt has moved to dismiss this appeal, arguing that the Appellants failed to file a timely notice of appeal. For the reasons explained herein, we shall deny Altstatt’s motion to dismiss this appeal and hold that the circuit court did not err by ruling that Appellants’ claims were barred by the statute of limitations. FACTS AND PROCEEDINGS On December 4, 2014, the Appellants filed a complaint in the Circuit Court for Montgomery County alleging one count each of intentional infliction of emotional distress, assault and battery, and negligence as a result of sexual abuse by Altstatt while the Appellants were minor children.

The alleged abuse occurred between 1964 and 1984. On January 20, 2015, Altstatt filed a motion to dismiss the complaint, arguing that the Appellants’ claims were barred by the statute of limitations. The Appellants opposed the motion to dismiss. The Appellants argued that they suffered from dissociative amnesia which, they alleged, should toll the stat ⁵⁶³ ute of limitations until the time they began to remember the abuse in early 2014.

The circuit court held a hearing on the motion to dismiss on April 22, 2015. At the conclusion of the hearing, the circuit court granted Altstatt’s motion to dismiss because the claims were barred by the statute of limitations. The court reduced its judgment to a written order which was docketed on April 24, 2015. On May 4, 2015, the Appellants filed a motion to alter or amend the order granting Altstatt’s motion to dismiss.

Altstatt filed an opposition on May 21, 2015. On June 9, 2015, the circuit court issued the order that forms the basis for Altstatt’s motion to dismiss the extant appeal. The June 9, 2015 order provides: UPON CONSIDERATION of Plaintiffs’ Motion to Alter or Amend This Court’s Order Granting Defendant’s Motion to Dismiss Complaint, it is this 9th Day of June 2015, by the Circuit Court of Maryland for Montgomery County, it is hereby ORDERED: That Defendant’s Motion to Dismiss Complaint is DENIED. (Emphasis added.) The June 9 order was docketed on June 12, 2015.

The docket entry provided: ORDER OF COURT (SALANT, J.) THAT PLAINTIFFS’ MOTION TO ALTER OR AMEND THIS COURT’S ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT IS DENIED, ENTERED. (COPIES MAILED) On July 16, 2015, the circuit court issued a subsequent order titled “AMENDED ORDER.” 2 The order provided: ⁵⁶⁴ Upon consideration of Plaintiffs’ Motion to Alter or Amend, filed May 4, 2015 (docket entry # 28), and Defendant’s Opposition thereto, filed May 21, 2015 (docket entry # 29), and pursuant to Maryland Rule 2 — 535(d), it is ... ORDERED that Plaintiffs’ Motion to Alter or Amend (docket entry #28) shall be, and hereby is, DENIED. On August 6, 2015, Appellants filed a notice of appeal.

On August 17, 2015, Altstatt filed a motion to strike the Appellants’ notice of appeal, which was denied by the circuit court on September 16, 2015. On November 2, 2015, Altstatt filed a motion to dismiss the appeal in this Court, arguing that the Appellants’ notice of appeal was untimely. The Appellants filed an opposition on November 16, 2015. On November 30,2015, this Court denied Altstatt’s motion to dismiss the appeal with leave to raise the issues in the briefs.

In his brief, Altstatt subsequently moved to dismiss the Appellants’ appeal as untimely. We, therefore, address the motion to dismiss the appeal herein. DISCUSSION I. Motion to Dismiss Appeal Altstatt asserts that the Appellants’ appeal must be dismissed as untimely. Altstatt argues that the Appellants’ notice of appeal was due within thirty days of the circuit court’s June 12, 2015 order.

Because the Appellants’ notice of appeal was not filed until August 6, 2015, Altstatt asserts that the notice of appeal was untimely filed. As we shall explain, we are unpersuaded. Altstatt maintains that the trial court’s June 12 order “contained a clerical error.” As set forth supra, the June 12 order provided that the order was being entered “UPON CONSIDERATION of [the Appellants’] Motion to Alter or Amend.” The order, however, did not expressly issue a ruling on the motion to alter or amend. Rather, the order provided that Altstatt’s “Motion to Dismiss Complaint is DENIED.” Altstatt argues that the order “should have read ‘Plaintiffs ⁵⁶⁵ Motion to Alter or Amend is DENIED’ ” and that the reference to the motion to dismiss rather than to the motion to alter or amend was an obvious mistake.

Altstatt asserts that the circuit court clerk “correctly understood the [ojrder to mean that the [Appellants’] Motion to Alter or Amend was denied and entered the denial on the docket.” The Appellants respond that the June 12 order did not actually rule upon the Motion to Alter or Amend. The Appellants further assert that the instant appeal “was timely made from the only order to which the Plaintiffs/Appellants could appeal — the July 16 Order.” The Appellants further argue that there is no factual support or evidence to support Altstatt’s position that the June 12 order contained a “clerical error.” Maryland Rule 8-202 provides that, with exceptions not relevant here, a “notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” 3 Pursuant to Rule 8-201, with exceptions not relevant here, “the only method of securing review by the Court of Special Appeals is by the filing of a notice of appeal within the time prescribed in Rule 8-202.” The 30-day filing requirement is “jurisdictional, and if the appeal is not timely noted, we must dismiss the appeal.” Carter v. State, 193 Md.App. 193, 206 , 996 A.2d 948 (2010). Whether a final judgment has been entered “turns on whether the court indicated clearly that it had fully adjudicated the issue submitted and had reached a final decision on the matter at that time. In other words, the trial court’s ruling must be an unqualified, final disposition of the matter in controversy.” Davis v. Davis, 335 Md. 699, 710-11 , 646 A.2d 365 (1994).

We have explained: In order for that moment of final judgment to arrive, the judge’s order must 1) be intended as an unqualified and ⁵⁶⁶ final disposition of the matter in controversy, 2) adjudicate all claims entirely unless certified pursuant to Md. Rule 2-602(b), and 3) the clerk must make a proper record of the judgment. Jenkins v. Jenkins, 112 Md.App. 390, 402 , 685 A.2d 817 (1996) (footnote omitted), superceded by rule as stated in Bussell v. Bussell, 194 Md.App. 137, 152-54 , 3 A.3d 480 (2010) (relating to savings provision for a prematurely filed appeal). In the instant case, the circuit court did not render an “unqualified, final disposition” with respect to the Appellants’ motion to alter or amend until July 16, 2015. Indeed, the circuit court’s issuance of an “amended order” strongly suggests that the circuit court itself recognized that the June 12 order had failed to rule on the Appellants’ motion to alter or amend.

Furthermore, as we explained in Jenkins , in order for a judgment to be final, “the clerk must make a proper record of the judgment.” Id. In this case, the clerk of the circuit court did not enter a proper record of the June 12 order. The circuit court’s June 12 order provided that Altstatt’s motion to dismiss complaint was denied, but the corresponding docket entry provided that the Appellants’ motion to alter or amend was denied. Because the June 12 order failed to render a judgment on the motion to alter or amend, and because the clerk failed to enter a proper record of the June 12 order, the June 12 order was not a final judgment from which an appeal could be taken.

Rather, the July 16 order, which issued an unqualified, final disposition on the motion to alter or amend, constituted a final judgment, and it is from this judgment that Appellants noted a timely appeal. Accordingly, we hereby deny Altstatt’s motion to dismiss Appellants’ appeal.

II

Statute of Limitations We next turn our attention to whether the circuit court erred by determining that the Appellants’ claims against Altstatt were barred by the applicable statute of limitations. The facts which Appellants’ allege as the basis of their claims all occurred when the Appellants were minors. Pursuant to ⁵⁶⁷ the applicable three-year statute of limitations in effect at the relevant time, the Appellants were required to bring their claims within three years of reaching majority. The general civil statute of limitations applicable at the time Appellants reached the age of majority provided: A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

Md. Code (1974, 1995 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article. 4 The Appellants reached the age of majority in 1972,1976, and 1984, respectively. 5 Pursuant to the general civil statute of limitations, the Appellants were required to pursue their claims by the applicable dates in 1975,1979, and 1987, respectively. The Appellants assert that they have dissociative amnesia which, they allege, was caused by childhood sexual abuse perpetrated by their father. The Appellants define dissociative amnesia as a condition that “involves a reversible memory impairment in which memories of personal experience cannot be retrieved in a verbal form (or, if temporarily retrieved, cannot be wholly retained in consciousness).” The Appellants assert that they were each unable to recall “the details of the abuse” by Altstatt until January 2014, when Robin was hospitalized in an inpatient trauma disorders unit for a ten-day period.

According to the Appellants, during Robin’s hospital ⁵⁶⁸ ization, Robin “realized for the first time the wide and deep effects of the sexual abuse” by Altstatt. Robin’s sisters assert that Robin’s hospitalization rekindled their own memories of the abuse. Carol reported that when Robin was hospitalized, “the whole mess was revived in frightening dimension” and the “incident brought back the horror I endured as a child.” Alice reported that “[i]t was only upon the recent hospitalization of my sister, Robin, for depression and suicidal ideation that I started to comprehend what had occurred.” On December 4, 2014, within a year of Robin’s hospitalization, the Appellants filed the complaint giving rise to the present appeal. 6 The Appellants assert that the application of Maryland’s discovery rule, which the Appellants assert should toll the statute of limitations due to the Appellants’ dissociative amnesia, renders their complaint timely filed. Historically, under Maryland law, causes of action “ ‘accrued on the date of the wrong.” Doe v. Maskell, 342 Md. 684, 689 , 679 A.2d 1087 (1996) (citing Hahn v. Claybrook, 130 Md. 179, 182 , 100 A. 83 (1917)).

Under the traditional rule, claims that were not discovered until after the expiration of the limitations period were automatically barred. Id. The historical rule “did not distinguish between a blamelessly ignorant plaintiff and one who had acted negligently and slumbered on his rights.” Id. at 690, 679 A.2d 1087 (internal quotations and citations omitted). It was in response to this harsh , application of the historical rule that the Court of Appeals developed the “discovery rule,” under which “a cause of action ‘accrues’ when [a] plaintiff knew or should have known that actionable harm has been done to him.” Id.

Although originally applied in the context of cases involving medical malpractice, the discovery rule was ultimately made applicable to all civil matters. Poffenberger v. Risser, 290 Md. ⁵⁶⁹ 631, 637, 431 A.2d 677 (1981). The Court of Appeals has explained: We held [in Pojfenberger ] that in order to “activate the running of limitations [it must be proven that the plaintiff had] actual knowledge-that is express cognition, or awareness implied from ‘knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry [thus, charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.’ ” Maskell, supra, 342 Md. at 690 , 679 A.2d 1087 (quoting Poffenberger, supra, 290 Md. at 637 , 431 A.2d 677 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402 , 250 A.2d 69 (1969))).

A. The Decision of the Court of Appeals in Doe v. Maskell Nearly twenty years ago, the Court of Appeals addressed the application of the discovery rule to a case involving repressed memories of childhood sexual abuse in Maskell, supra, 342 Md. 684 , 679 A.2d 1087 . The Court identified the issue before it as “whether the ‘discovery rule’ applicable to the time-bar of the statute of limitations on civil actions at law ... applies to cases of allegedly ‘repressed’ and ‘recovered’ memories.” Id. at 686 , 679 A.2d 1087 . 7 The Court found that “the critical question to the determination of the applicability of the discovery rule to lost memory cases is whether there is a difference between forgetting and repression.” Id. at 691 , 679 A.2d 1087 . The Court explained this distinction as follows: It is crystal clear that in a suit in which a plaintiff “forgot” and later “remembered” the existence of a cause of action beyond the 3-year limitations period, that suit would be time-barred. Dismissal of such a case reflects our judg ⁵⁷⁰ ment that the potential plaintiff had “slumbered on his rights,” should have known of his cause of action, and was blameworthy.

To permit a forgetful plaintiff to maintain an action would vitiate the statute of limitations and deny repose for all defendants. Id. at 692 , 679 A.2d 1087 . In order to determine whether there was a difference between forgetting and repression, the Court examined “expert testimony provided at the summary judgment hearing” and “numerous scientific journals submitted by the parties.” Id. The Court observed that “[e]ven defining the term [of repression] is not easy.” Id.

The Court provided the following definition of repression set forth by David S. Holmes in The Evidence for Repression: An Examination of Sixty Years of Research, in Repression and Disassociation: Implications for Personality, Theory, Psychopathology and Health 85, 85-86 (J. Singer, ed. 1990): It is my belief that in its general use the concept of repression has three elements: (1) repression is the selective forgetting of materials that cause the individual pain; (2) repression is not under voluntary control; and (3) repressed material is not lost but instead stored in the unconscious and can be returned to consciousness if the anxiety that is associated with the memory is removed. The assertion that repression is not under voluntary control differentiates repression from suppression and denial, with which it is sometimes confused____ Maskell, supra, 342 Md. at 693 , 679 A.2d 1087 . The Court commented that the petitioners had “provided [the Court] with several studies purporting to validate the diagnosis of repression.” Id. (citing various articles).

The Court noted, however, that the respondents “ha[d] also offered significant scientific information tending to discredit the concept of repression and its application in this setting,” noting that the “arguments against repression take several forms.” Id. The Court observed that “[f]irst, the adversaries of repression stress that there is no empirical, scientific evidence to ⁵⁷¹ support the claims that repression exists.” Id. The Court further noted that “critics of repression theory point out that the scientific, and specifically, the psychological community has not embraced repression theory, and that, in fact, serious disagreement exists.” Id. at 694 , 679 A.2d 1087 . Finally, the Court emphasized that concern existed relating to the accuracy and reliability of recovered memories, explaining: Finally, critics of repression theory argue that the “refreshing” or “recovery” of “repressed” memories is more complicated than repression proponents would have us believe.

This argument takes two forms: (1) that memories refreshed with the assistance of a mental health professional are subject to manipulations reflecting the biases of the treating professional; and (2) that a repressed memory cannot be retrieved whole and intact from the cold storage of repression. Id. at 695 , 679 A.2d 1087 . After having reviewed the arguments on both sides of the issue, the Court was “unconvinced that repression exists as a phenomenon separate and apart from the normal process of forgetting.” Id. As such, because the Court concluded that repression and the normal process of forgetting were “indistinguishable scientifically,” the Court reasoned “that they should be treated the same legally.” Id.