This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Edward Behnke,





Steven Behnke,



Filed May 15, 2007


Worke, Judge


Dakota County District Court

File No. 19-C7-04-10286


John E. Mack, Mack & Daby, P.A., P. O. Box 302, New London, MN 56273 (for appellant)


Steven Behnke, 13913 West Preserve Blvd., Burnsville, MN 55337 (respondent pro se)


            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from summary judgment dismissing his action for damages arising out of alleged sexual abuse by respondent, appellant argues that the statute of limitations under Minn. Stat.  § 541.15(a) (2004) is six years from the date the minor reaches the age of 18 years, not one year as the district court ruled.  We reverse. 


            “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  “Determination of whether summary judgment was properly granted on statutes of limitations grounds depends in part on construction of the implicated statutes.”  Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn. 1990).  Statutory construction is a question of law subject to de novo review.  Id.

            On November 5, 20041, appellant Edward Behnke initiated a lawsuit against his father, respondent Steven Behnke, alleging incidents of sexual abuse committed against appellant by respondent from approximately 1991 to 1993, while appellant was a minor.  Appellant turned 18 on February 12, 2003.  The district court later granted respondent’s motion for summary judgment and dismissed the case as a matter of law, concluding that the statute of limitations for such an action had expired. 

            Appellant argues that the district court erred in its application of the law by concluding that the statute-of-limitations period had expired.  “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 the sexual abuse.”  Minn.Stat. § 541.073, subd. 2(a) (2004).   However, the circumstance of childhood “suspend[s] the running of the period of limitation” until the child becomes age 18.  Minn. Stat. § 541.15(a) (2004).  This statute adds the declaration that “such period” shall not be extended, in the case of infancy, “for more than one year after the disability ceases.”  Id.  The Minnesota Supreme Court has determined that if a disability under Minn. Stat. § 541.15 exists, sexual-abuse claims must be brought “within six years of the time [the individual] turn[s] 19 years of age.”  W.J.L. v. Bugge, 573 N.W.2d 677, 682 (Minn. 1998); see also Bertram v. Poole, 597 N.W.2d 309, 314 (Minn. App. 1999) (“The Minnesota Supreme Court determined that a victim has until age 25 to bring suit under the W.J.L. interpretation of the statutes.”), review denied (Minn. Sept. 28, 1999). 

            Here, the district court found that under Minn. Stat. § 541.073, subd. 2 (2004):

[A]n action for damages based on personal injury caused by sexual abuse must be commenced within six years of the time [appellant] knew or had reason to know that the injury was caused by the sexual abuse.  However, if [appellant] is within the age of 18 years when the cause of action accrued, the running of the period of limitation is suspended until one year after the child reaches the age of majority. 


The district court concluded that the limitation period had expired because the period began to run in 1996, when appellant first acknowledged that his injury had been caused by the abuse.  The district court found that because appellant was a minor when the abuse occurred, the limitation period was suspended “until one year after [appellant] reached the age of majority. . . . The statute of limitations ran on February 12, 2004.”  The district court granted respondent’s motion for summary judgment because appellant initiated the lawsuit after the limitations period had expired. 

            The district court’s interpretation of the delayed-discovery statute, however, has been struck down by the Minnesota Supreme Court.  In D.M.S. v. Barber, the supreme court held that “[r]eading the delayed discovery statute [as expiring when the plaintiff reached the age of 19 or six years from the date of the abuse, whichever is later] would defeat its purpose and render the statute meaningless for children.”  D.M.S. v. Barber, 645 N.W.2d 383, 390 (Minn. 2002).  The court further held that “absent some other disability that serves to delay the running of the statute of limitations, the six-year period of limitation . . . begins to run when the victim reaches the age of majority.”  Id.  This interpretation of the delayed-discovery statute is slightly different from that in the W.J.L. line of cases.  But under either interpretation, appellant’s lawsuit was filed before the statute-of-limitations period had expired.  Appellant turned 18 on February 12, 2003.  Under D.M.S., the statute-of-limitations period would expire on February 12, 2009.  Under the W.J.L. interpretation, the six-year statute of limitations period would begin to run on February 12, 2004, when appellant turned 19; with the limitations period expiring on February 12, 2010.  Appellant commenced this action on November 5, 2004, well within the statute-of-limitations period under either interpretation of the statute.


1 The district court order states that appellant commenced this lawsuit by service of the summons and complaint upon respondent on October 28, 2004; however, the affidavit of service reflects that the pleadings were personally served upon respondent on November 5, 2004.  This discrepancy does not affect the outcome of this decision.