This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







John B. D. Doe,


St. Philip’s Parish,

Roman Catholic Bishop of Fall River, a Corporation Sole,

Diocese of Crookston,


Servants of the Paraclete, Inc., a New Mexico Corporation,



James R. Porter,


Filed July 9, 2002

Affirmed; motion to strike granted

Poritsky, Judge*



Washington County District Court

File No. C6002240



Jeffrey R. Anderson, Jodean A. Thronson, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)


James W. Haskell, Cann, Haskell, D’Albani & Schueppert, P.A., 205 Seventh Street Northwest, Bemidji, MN 56601 (for respondent St. Philip’s Parish)


Leo I. Brisbois, John F. Angell, Stich, Angell & Kreidler, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent Roman Catholic Bishop of Fall River)


Lawrence J. Hayes, Jr., Knutson, Flynn & Deans, 1155 Centre Pointe Drive, Suite 10, Mendota Heights, MN 55120 (for respondent Diocese of Crookston)


Matthew J. Hanzel, Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., 1400 Ecolab University Center, 386 North Wabasha Street, St. Paul, MN 55102 (for respondent Servants of the Paraclete)


            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Poritsky, Judge.

U N P U B L I S H E D    O P I N I O N




Appellant brought an action seeking damages based on sexual abuse by a priest that had occurred thirty years earlier.  The district court granted summary judgment in favor of respondents, holding that appellant’s suit was barred by the statute of limitations. Appellant contends that his claim is not time-barred because (1) under the delayed discovery statute, Minn. Stat. § 541.073 (2000), his mental disability prevented him from knowing that he was injured by the sexual abuse, and (2) that under Minn. Stat. § 541.15 (2000), his disability tolled the statute of limitations.  We affirm.



For purposes of this appeal, the following facts are undisputed.  Between August 1969 and September 1970, Father James Porter, serving as an associate pastor at the St. Philip’s Parish in Bemidji, Minnesota, sexually molested over twenty parish children, including appellant and his three cousins.[1]  Father Porter sexually molested appellant five times during that time period.  Appellant was between the ages of 11 and 12 when the abuse occurred.  Appellant was also sexually abused by his mother’s stepbrother during this same period of time.  Appellant testified at his deposition that he told his mother approximately ten years earlier about the abuse by his stepbrother, and at that time, knew what his stepbrother did to him was wrong.

            In 1992, appellant heard on the radio that Porter was charged with criminal sexual conduct.  Appellant testified at his deposition that he was relieved to learn of Porter’s arrest and “at that time * * * realized that he [Porter] had done wrong finally.”  Appellant also became aware that his cousins, along with other victims of the parish, were bringing a civil action against Porter.  Appellant was 34 years old at that time and decided not to join the lawsuit because of the extensive publicity and because “I didn’t want people to think I was queer.”  Appellant stated that he followed the cases closely but “didn’t know who to go to * * * [u]ntil I talked to my doctor in September of 1999.”  Appellant acknowledged that he carried the memories of the abuse throughout his life.

Appellant was hospitalized for mental illness conditions several times from 1984 to 1996, comprising a total hospitalization period of approximately 38 days.  Appellant was initially diagnosed with a schizophreniform disorder in early 1984.  In 1989, appellant exhibited characteristics of a schizophrenic disorder with paranoid components.  In 1992, appellant was diagnosed with a bipolar disorder.  Medical records indicate that the hospitalizations were related to situational stressors (divorce, involvement in domestic abuse proceedings, breakup with girlfriend) and failure to take medications.  Appellant was never involuntarily hospitalized, and his mental health would consistently improve under medication.  Appellant receives disability from Social Security based on his mental illness.

            Appellant commenced this action on or about March 16, 2000, alleging various causes of action against Porter and respondents, and seeking damages for his injuries arising from the sexual abuse by Porter.  Appellant waived his claims against respondent Porter[2] and appeals only his negligence claims against the remaining respondents, having voluntarily dismissed his vicarious liability claims.  Appellant alleges that he first became aware of his injuries and their relation to the sexual abuse inflicted by Porter while in therapy in September of 1999.

Respondents subsequently brought a motion for summary judgment arguing that appellant’s claims were time-barred by the statute of limitations for injuries arising out of sexual abuse.  As respondents point out, it wasn’t until appellant responded to the motion that he alleged that the statute of limitations was tolled under Minn. Stat. § 541.15 (2000), due to his disability/insanity.  There is no specific reference to the tolling provisions of Minn. Stat. § 541.15 in appellant’s complaint.[3]  Appellants did allege, however, that due to his “psychological coping mechanisms, repression and disassociation from his experiences,” he was

unable to perceive or know the existence or nature of his psychological injuries and/or their connection to the sexual molestation perpetrated upon him * * * until within six years prior to commencement of this action.


The district court granted summary judgment in favor of respondents, finding that appellant’s claims were time-barred.  The district court declined to rule on the procedural question of whether appellant had to provide in a pleading or through discovery, notice of a tolling defense to the statute of limitations, finding instead that appellant failed to meet the definitional threshold of insanity.  This appeal followed.



On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).

 A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.


Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citations omitted).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.

When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court.  Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 856 (Minn. 1998).


Appellant first argues that because his mental disability prevented him from knowing that he was injured by sexual abuse, the district court erred in granting summary judgment.

Claims arising out of sexual abuse are now governed by a special statute of limitations found in Minn. Stat. § 541.073 and known colloquially as the delayed discovery rule:[4]

(a) An action for damages based on personal injury caused by sexual abuse must be commenced within six years of the time the plaintiff knew or had reason to know that the injury was caused by sexual abuse.

(b) The plaintiff need not establish which act in a continuous series of sexual abuse acts by the defendant caused the injury.

* * *

(d) This section does not affect the suspension of the statute of limitation during a period of disability under section 541.15.


Minn. Stat. § 541.073, subd. 2(a), (b), (d) (2000).

In Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996), the supreme court interpreted clause (a), stating that “as a matter of law one is ‘injured’ if one is sexually abused” and held that knowledge of the abuse is to be determined by an objective, reasonable person standard.  546 N.W.2d at 3.  In other words, the statue of limitations begins to run when the abuse ends, unless there is some legal disability, such as the victim’s age, or mental disability, that would make a reasonable person incapable of recognizing or understanding that he or she had been sexually abused.  J.J. v. Luckow, 578 N.W.2d 17, 18 (Minn. App. 1998), review denied (Minn. July 16, 1998).  Thus, unless appellant were under a legal disability—an issue we address in part II of this opinion—section 541.073 would bar his claim.

When the statute was first enacted in 1989, however, the legislature included a “window of opportunity” provision.  This provision permitted claims otherwise time-barred to be brought by August 1, 1990, if a plaintiff could prove by a preponderance of the evidence that he had consulted with an attorney to investigate a possible claim within two years of the time he knew or had reason to know his injury was caused by the sexual abuse.  1989 Minn. Laws ch. 190, § 7.  There is no evidence showing that appellant did so, and in fact, appellant conceded at the summary judgment hearing that he had not consulted with an attorney on his sexual abuse claim prior to 1999.  Thus, the 1989 “window of opportunity” provision did not serve to revive his claim.

In 1991, the statute was amended to change the limitations period for claims based on intentional tort from two years to six years.[5]  1991 Minn. Laws ch. 232, § 1.  The legislature again included a window provision:

Notwithstanding any other provision of law, a plaintiff whose claim would otherwise be time-barred under Minnesota statutes 1990 has until August 1, 1992, to commence a cause of action for damages based on personal injury caused by sexual abuse.


1991 Minn. Laws ch. 232, § 5.  Appellant’s claim was not brought by August 1, 1992.  Moreover, in H.D. v. White, 483 N.W.2d 501 (Minn. App. 1992), this court interpreted the amendment’s “notwithstanding any other provision of law” language to mean that it revived only claims that would be time-barred under the previous two-year statute of limitations for intentional torts, but not under the new six-year statute.  Id. at 503.  In other words, it revived only those claims between two and six years old that were based on intentional tort, not stale negligence claims.  Id.  Appellant’s claim is based on a negligence theory.  Thus, neither the 1989 nor the 1991 windows serve to revive appellant’s claim.  We conclude that unless appellant was under a disability, his claim is barred by Minn. Stat. § 541.073.


Appellant’s second argument is that the statute of limitations was tolled due to his “insanity” disability under Minn. Stat. § 541.15(a)(2) (2000).  Appellant does not specify the period of time that he was “insane.”  Conceivably, the period encompasses from 1992 until 2000 when he filed his claim because appellant conceded at the August 2001 summary judgment hearing that he knew or should have known of the abuse in 1992, with the advent of the national publicity concerning Father Porter’s abusive acts.

Minn. Stat. § 541.15 (a)(2) provides in pertinent part:

[A]ny of the following grounds of disability, existing at the time when a cause of action accrued or arising anytime during the period of limitation, shall suspend the running of the period of limitation until the same is removed; provided that such period, except in the case of infancy, shall not be extended for more than five years, nor in any case for more than one year after the disability ceases:

* * *

(2) the plaintiff’s insanity.


The statutory term “insanity” was first defined by the supreme court in Harrington v. County of Ramsey, 279 N.W.2d 791, 795-96 (Minn. 1979):

“insanity” in the context of tolling the statute of limitations need not be severe lunacy or idiocy.  We hold that under the statute insanity means substantial inability, by reason of mental defect or deficiency, to understand one’s legal rights, manage one’s affairs, and prosecute the claim.  As a corollary to this rule, we conclude that short, temporary occasions of mental illness are sufficient to toll the statute on the basis of “insanity” only if such short occasions substantially impair the general ability of the plaintiff to understand her rights, manage her affairs, and prosecute the claim.  This determination of substantial impairment depends upon the duration of the mental illness or defect as compared to the time within which suit must be brought.

Applying this definition of “insanity,” the next question is whether there is a genuine issue of material fact concerning plaintiff’s alleged insanity and tolling of the statute of limitations.  Plaintiff’s mere assertion of insanity to toll the statute of limitations does not create a factual dispute to be resolved by the jury.  Instead, the entire record must be examined.


In Harrington, the supreme court concluded that a genuine issue of fact existed as to the plaintiff’s sanity during the period of 1970 to 1974 as evidenced by her voluntary admittance to a psychiatric ward four times for attempted suicide and once involuntarily from September 1970 to January 1972.  Id. at 796-97.  The plaintiff continued to be intermittently hospitalized six different times in 1972, 45 weeks in 1973, and 45 weeks in 1974.  Id. at 797.  Supporting plaintiff’s claim was an affidavit by a psychiatrist expert stating that the plaintiff was incapable of managing her affairs or comprehending her rights.  Id.

            Here, appellant was never involuntarily committed, nor did he submit an affidavit from a medical expert testifying to appellant’s insanity.  Appellant argues that the statute does not require an expert affidavit to establish a genuine issue of material fact regarding mental disability or insanity.  He argues that the submitted medical records sufficiently evidence multiple, severe mental disorders to create a genuine issue of material fact.  Appellant also asserts that the district court applied the wrong standard, i.e., requiring him to prove insanity rather than merely requiring that there be a genuine issue of material fact as to his insanity.

Appellant contends that he has a much more severe history of mental disability than the plaintiff in Harrington because his mental problems span a period of seventeen years versus four years of mental disorders for the plaintiff in Harrington.  A review of appellant’s medical records, however, establishes that he suffers from psychological problems that medication addresses and for which he has received intensive treatment on an episodic, short-term basis.  Unlike the plaintiff in Harrington, whose periods of involuntary commitment overlapped with virtually all of the period for the applicable statute of limitations, appellant’s hospitalizations were brief and episodic.

            Moreover, case law considering the insanity exception for tolling of the statute of limitations since Harrington demonstrates that there must be more than evidence of a diagnosis of mental illness to raise a genuine issue of material fact to support an “insanity” claim under the statute.  For example, in L.A.B. v. P.N., 533 N.W.2d 413 (Minn. App. 1995), we held that a psychiatric patient was not disabled by “insanity” despite an affidavit by her treating therapist stating she was incapable of prosecuting her claim and her own testimony that she was depressed and suicidal.  Id. at 417.  Noting that the plaintiff lived independently, maintained her employment, and retained counsel during her therapy, and that she was aware of when the statute of limitations would bar her claim, we concluded that there was no persuasive evidence that the plaintiff was substantially impaired in her ability to understand her rights, manage her affairs, or prosecute her claim prior to expiration of the statutory limitation period.  Id. at 417-18.

Similarly, in Larson v. State, 451 N.W.2d 213 (Minn. App. 1990), we held that “[p]aranoia meriting short term hospitalization * * * is insufficient proof of insanity to toll the statute of limitations” in the absence of other evidence that the victim was unable to understand his legal rights, manage his affairs or prosecute his claim.  Id. at 213.

            In the unpublished opinion, Malimanek v. Fjelstad, No. C4-89-935, 1989 WL 124368 (Minn. App. Oct. 24, 1989), review denied (Minn. Dec. 15, 1989), the plaintiff was distracted and depressed because of his injury, and according to his treating physician, possibly unable to understand the long term consequences of his injury.  Id. at *2.  The trial court granted partial summary judgment in favor of certain defendants, finding that plaintiff’s claim was time-barred.  Id. at *1.  We affirmed, noting that plaintiff retained counsel prior to expiration of the limitations period and that “no evidence exists [plaintiff] had a ‘substantial inability’ to understand his legal right and prosecute his claim.”  Id. at *2.

            Further, in Maloney v. Dakota County Receiving Ctr., Inc., 560 N.W.2d 402 (Minn. App. 1997), review denied (Minn. May 20, 1997), we held that a history of chemical dependency, treatment, and commitment, without more, was insufficient to show incapacity to toll for a disability under the statute.  Id. at 406.

Respondents cite this court’s unpublished decision, Hall v. Hall, No. C0-93-340, 1993 WL 310691 (Minn. App. Aug. 17, 1993), review denied (Minn. Oct. 7, 1993), as  having similar facts and therefore instructive.  In Hall, the appellant argued that because he suffered from schizophrenia during the limitation period, his condition tolled the statute of limitations.  Id. at *1.  Hall submitted his own affidavit asserting his mental deficiency and a Social Security Administration (SSA) determination that he was disabled due to his mental impairment.  Id. at *2.  Citing Harrington, we concluded that Hall’s assertion of insanity did not create a factual dispute and that an SSA disability determination was not sufficient evidence that he suffered from a “substantial inability” to understand his legal rights or manage his affairs.  Id. (citing Harrington, 279 N.W.2d at 795).  Furthermore, Hall’s ability to prosecute his social security action pro se, “indicates he was capable of understanding his rights and prosecuting his claim.”  Id.

Unlike Hall, appellant did not submit his SSA report.  Moreover, appellant retained counsel during his period of alleged mental disability.

[R]etention of counsel is evidence, although not conclusive, of a person’s sanity or legal capacity for the purpose of the running of the statute of limitations.


Harrington, 279 N.W.2d at 796 (citations omitted).  Here, the record demonstrates that appellant retained counsel to represent him in a workers’ compensation claim in 1988, and retained counsel again in 1995 to represent him in a divorce action.  He also appeared in court pro se on numerous occasions in relation to domestic abuse proceedings.  There is no evidence in the record that he was unable to meaningfully consult with his counsel throughout litigation of his prior claims.  Respondents assert that if appellant were “insane,” one would expect that his lawsuits would have been brought in his name by a court-appointed guardian.  Because appellant had considerable experience with the legal system during the period in question, we conclude that his ability to understand his legal rights and prosecute his claim was not “substantially impaired.”

            Appellant also appears to have been able to manage his affairs during the period in question.  While appellant is not gainfully employed at the present time, he was a full-time journeyman carpet installer and a volunteer fireman until his workers’ compensation injury in 1988.  He has maintained his own residence, paid mortgages, and was awarded joint legal custody of his children in connection with his 1995 marital dissolution.


Appellant argues in his reply brief that his confusion about what Porter had done to him does not amount to knowledge of the abuse under the statute.  He also points to his silence as lack of knowledge.  However, “silence does not represent a special cause to delay the running of the statute of limitations” and “delay is not justified by evidence of confusion, guilt, or self-blame.”  J.J. v. Luckow, 578 N.W.2d 17, 20 (Minn. App. 1998), review denied (Minn. July 16, 1998).

            Appellant cites Winkler v. Magnuson, 539 N.W.2d 821 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996), in support of his argument.  This court’s analysis in that case does appear to lend support to appellant’s argument.  Winkler, however, relies heavily on this court’s decision in Blackowiak v. Kemp, 528 N.W.2d 247 (Minn. App. 1995) which was reversed by Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996) (“Blackowiak II”).  In Blackowiak II, the supreme court stated that this court erroneously made a distinction between whether a plaintiff should have known she was abused and when she should have been aware that the sexual abuse caused the injuries.  Id. at 3.  Although the supreme court denied review for Winkler, appellant’s reliance on it is misplaced given Blackowiak II and its progeny.

            In sum, given (1) appellant’s decision to decline to participate in a lawsuit against Porter in 1992 when he realized Porter had “done wrong;” (2) his awareness 10 years earlier of the wrongful nature of the sexual abuse inflicted upon him by his stepbrother; (3) his retention of counsel and pro se contact with the legal system numerous times during the tolling period in question; (4) his ability to manage his affairs; and (5) the relative brevity and episodic nature of his medical treatments and the lack of an expert affidavit testifying to his mental insanity; even under the most favorable view of the facts in his favor, the district court did not err in finding that he failed to meet the definitional threshold of insanity for purposes of tolling the statute of limitations and in granting respondents’ motion for summary judgment.


Motion to Strike by Respondent Servants of the Paraclete, Inc.

            Respondent Servants of the Paraclete, Inc. submitted a motion to strike the entire first segment of appellant’s statement of facts section due to lack of references to the record.  These facts pertain to respondent Porter’s history of child molestation.  “Failure to cite to the record is a violation of Minn. R. Civ. App. P. 128.03.”  Brett v. Watts, 601 N.W.2d 199, 202 (Minn. App. 1999), review denied (Minn. Nov. 17, 1999).  Flagrant violation of appellate rules requiring citations to the record may lead to non-consideration of an issue or dismissal of the appeal.  Brett, 601 N.W.2d at 202.

Because appellant does not cite to the record as required by the rules, we grant the motion and hereby strike Section I of the Statement of Facts in appellant’s brief.  Nonetheless, some of the statements are part of the record because they appear in appellant’s complaint, in his motion in opposition to summary judgment, and in the district court’s summary judgment order in its recitation of the facts.

The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.


Minn. R. Civ. App. P. 110.01.  Therefore, while we grant respondent’s motion to strike, we conclude that to the extent the un-referenced facts stated by appellant in his brief are consistent with facts elsewhere in the record, they are not outside the scope of appellate review.

            Affirmed; motion to strike granted.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] During this time period, Father Porter was employed by respondent Crookston Diocese and contemporaneously, by respondent Fall River Diocese as the associate pastor at St. Philip’s Parish in Bemidji.  For purposes of this appeal, respondent Servants of the Paraclete, Inc., operated a program for priests with psychological disorders and supported the appointment of Porter as associate priest at St. Philip’s Parish after completing a treatment program at Servants of the Paraclete.  Our Lady of the Snows, now defunct, operated a program where Porter also received treatment.  Claims against Our Lady of the Snows were subsequently dismissed.

[2] Issues not briefed on appeal are waived.  Melina v Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).

[3] Respondents’ contention in this respect may find some support in Pederson v. Am. Lutheran Church, 404 N.W.2d 887, 890 (Minn. App. 1987), review denied (Minn. June 30, 1987) where this court in dicta stated that “it is not unreasonable to require that [plaintiff] anticipate the raising of a statute of limitations defense[,] [n]or is it unreasonable to require that facts to support a possible tolling of the limitations period appear on the face of the complaint.”  This court went on to state, however, that this did “not imply that in the future every complaint must allege facts to overcome a statute of limitations defense prior to the filing of an answer.”  Id. at 889-90. Moreover, Pederson was interpreting rule 12.02 for failure to state a claim wherein the claim was over 23 years old.  Id. at 889.  Considering (1) that pleadings are to be liberally construed, Hutton v. Bosiger, 366 N.W.2d 358, 360 (Minn. App. 1985), review denied (Minn. June 27, 1985); (2) that district courts have discretion to allow amendment of the pleadings, Niccum v. Hydra Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989); and (3) that appellant, to survive summary judgment, was obligated to present affirmative evidence and could not rely on assertions in his pleadings to create fact issues, Ahlm v. Rooney, 274 Minn. 259, 262 143 N.W.2d 65, 68 (1966), his failure to plead the tolling of his claim by disability is not fatal to his claim.  We analyze appellant’s arguments as if they were timely made.

[4] Minn. Stat. § 541.073 was originally enacted in 1989 and extended the statute of limitations for sexual abuse from the time the abuse occurred to the time the injury was discovered.  H.D. v. White, 483 N.W.2d 501, 502 (Minn. App. 1992).

[5] The original 1989 statute established a two-year statute of limitations period for personal injury claims based on intentional tort and a six-year period for injuries based on negligence.  See 1989 Minn. Laws ch. 190, § 2.