This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).











Filed April 1, 1997


Mulally, Judge


Washington County District Court

File No. C6944480

Kathleen O'Connor, David O'Connor, 1500 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Appellant)

J. Mark Catron, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Mulally, Judge.



Appellant adult daughter brought suit against respondent mother for failure to exercise reasonable care to protect her from sexual abuse by father when daughter was a minor. The district court granted summary judgment to mother on the ground of the statute of limitations, and daughter appeals. We affirm.


Appellant J.K.B. (DOB 6/8/69) brought this civil suit in August 1993 against her father, A.D.B., for sexual abuse,[1] and her mother, respondent E.S.B., for failure to exercise reasonable care to protect her. The alleged abuse took place from approximately 1979 to approximately 1985. Trial was scheduled for January 2, 1996. On that day, the district court denied mother's statute-of-limitations-based summary judgment motion. Trial was continued (for reasons unrelated to the summary judgment motion) until June 10, 1996.

On June 4, 1996, mother gave notice of her intention to renew her summary judgment motion on the ground of the statute of limitations, citing the supreme court's April 1996 decision in Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996), discussing the statute of limitations. The district court heard the motion over J.K.B.'s objection on the ground of untimeliness and granted summary judgment to mother. J.K.B. appeals on several grounds.


I. Timeliness of Summary Judgment Motion

J.K.B. argues that mother violated Minn. R. Gen. Pract. 115.03(a) and Minn. R. Civ. P. 56.03 by making her motion for summary judgment only six days before trial, that this late motion prejudiced her, and that the district court therefore should not have heard the motion. We disagree.

There is no dispute that the district court can waive its own time limit rules for motions. Hopkins v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991). Therefore, we do not discuss further J.K.B.'s reliance on the time limits in Minn. R. Gen. Pract. 115.03(a).

Minn. R. Civ. P. 56.03 provides that summary judgment motions must be served no later than 10 days before the date scheduled for hearing. However, case law indicates that this requirement is not absolute. For example, in Albert v. Paper Calmenson & Co., 515 N.W.2d 59 (Minn. App. 1994), modified in part on other grounds, 524 N.W.2d 460 (Minn. 1994), we upheld the district court's grant of a motion for summary judgment that had earlier been denied but was renewed on the first day of trial. Id. at 65. We indicated that Minn. R. Civ. P. 56.03 had been violated, but, noting that a trial court can grant summary judgment sua sponte if both parties are given an opportunity to respond, we conclude that the trial court should "be given some reasonable latitude and * * * the question becomes" one of prejudice. Id.

In the present case, the statute of limitations was plainly a major issue in the trial. It was raised in mother's answer and had been the subject of a prior summary judgment motion. That earlier motion was denied based on this court's opinion in Blackowiak, which was subsequently reversed by the supreme court on the very point discussed in the district court's order. The record supports the district court's finding of no prejudice resulting from the late motion.

II. Propriety of Evidence Used to Support Summary Judgment

J.K.B. argues that the district court, in deciding mother's summary judgment motion, improperly relied on unsworn and uncertified copies of a police file and medical records and an unsworn psychological report, all attached to an affidavit by mother's attorney. We disagree.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Minn. R. Civ. P. 56.05. The district court addressed the issues raised by this rule in its order:

All of the facts relied on by [mother] are based on statements made by [J.K.B.]--by way of deposition or to police investigators and medical personnel--and would be admissible at trial.

Further, the district court is not necessarily precluded from considering technically deficient evidence on a motion for summary judgment. For example, in Lundgren v. Eustermann, 370 N.W.2d 877, 881 (Minn. 1985), the supreme court held that an unsworn and untimely psychologist's letter should still be considered part of the summary judgment record. Further, we are persuaded by the concerns raised on this issue in Minnesota Practice:

Overly strict adherence to the demands of [Minn. R. Civ. P.] 56.05 could lead to an undue amount of energy being devoted to determine the quality of the admissible evidence contained in the affidavits. * * * Courts may be reluctant to strictly apply the rules of evidence to summary judgment proceedings. To do so might render * * * supportive affidavits ineffective, precluding otherwise appropriate summary judgments * * *.

2A David F. Herr & Roger S. Haydock, Minnesota Practice § 56.27 (1985). We affirm the district court's consideration of the records and reports.

III. Statute of Limitations, Minn. Stat. § 541.073

On appeals from summary judgments, this court must consider two questions:

(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence is to be viewed in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993).

A. Evidence Supporting Date of Discovery

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) (1996). In Blackowiak, 546 N.W.2d at 3, the supreme court held that under the statute, there is no distinction between knowledge of abuse and awareness that it caused injury, and that the inquiry is an objective one.

The district court found that J.K.B. "knew that her father's conduct constituted sexual abuse long before she turned 18," which was in June 1987.[2] The evidence supporting this finding is as follows:

(1) Deposition testimony: J.K.B. testified in her deposition that she had clear memories of the abuse from ninth grade to her junior year of high school (eleventh grade). She indicated that the abuse stopped sometime before she began dating R.N. in her junior year. She testified that the abuse started before ninth grade, but she did not know exactly when. She testified that she told R.N. and two other friends, although the deposition does not make it clear when this occurred. She testified that she told a Dr. French that she "had been abused by [her] father" and that at the time she told Dr. French this, she knew that what had happened was criminally wrong. It is not clear when she saw Dr. French. Her brief states that it occurred in 1989 or 1990, but she only cites to her counsel's argument for those dates, and the cited transcript actually refers to 1988 as the date.

(2) Police report: In support of its motion for summary judgment, mother submitted what appears to be a police report summary of an interview with J.K.B. that took place in 1992. The author indicates that J.K.B. said she remembered an officer coming to her sixth grade class to discuss sexual abuse and that at the time she knew she was a victim. It further indicates that J.K.B. said the abuse stopped when she was 16 and realized it was wrong, was involved in a physical confrontation with her father, and told him "no more." The report states that she said she had told R.N. in the summer of 1986 about the abuse and also told some other friends during her junior or senior years. The report states that the reason she was now reporting the abuse was that her father was living with a woman with young female grandchildren who she thought might be in danger.

(3) Minneapolis Clinic of Neurology report, dated September 1992: This report repeats some of the information contained in the police report and the deposition. It also indicates that J.K.B. reported that a year before (1991), she had seen a movie about sexual abuse and had been overwhelmed by memories of her abuse. It notes that when she was 18, her father left, and she realized on that day that he had "used" her.

(4) Psychological evaluation by Dr. Stevens, dated January 1996: This report refers to the police officer grade school visit, but gives fourth grade as the time it occurred rather than sixth. It reports that she indicated the abuse stopped at approximately age 15 or 16 because she became aware that it was wrong and was able to defend herself. The evaluation indicates that she reported the movie incident as having occurred when she was about 18 or 19 years old and she then saw Dr. French because of ensuing depression and confided that she had been abused. According to the report, J.K.B. saw another counselor at a women's center after that, and then in 1992-1993 began receiving treatment elsewhere.

The evidence in this type of case is rarely precise, but here we have repeated indications that J.K.B. ended the abuse in high school because she knew it was wrong and could defend herself. Therefore, we affirm the district court's finding of a discovery date before age 18. Under an objective standard, those facts sufficiently demonstrate that she knew or should have known by then that her father had sexually abused her.

J.K.B. argues that her knowledge of abuse when she was still a child is not properly considered, attempting to distinguish Blackowiak factually, but we find absolutely no support for her argument and do not address it further.

B. Tolling of Statute of Limitations for Infancy

J.K.B. filed this suit in August 1993. Because the district court found that the discovery date was before she turned 18, Minn. Stat. § 541.15(a) is at issue. It provides in part:

(a) Except as provided in paragraph (b), any 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:

(1) That the plaintiff is within the age of 18 years.

Minn. Stat. § 541.15(a) (emphasis added). J.K.B. focuses on the emphasized language to argue somehow that she had seven years (six from the statute of limitations, plus one more from the emphasized language) from her 18th birthday to file suit. She cites no case applying the statute in that manner, and it is entirely without merit.

When a minor's cause of action accrues, the statute of limitations begins to "run," but if its period expires completely while the person is still a minor, Minn. Stat. § 541.15(a) will extend it one year beyond the person's 18th birthday. In Anderson v. Lutheran Deaconess Hosp., 257 N.W.2d 561, 562 (Minn. 1977), the plaintiff was 18 at the time his action accrued and the age of majority was 21. The statute of limitations was two years and thus would have run before he reached the age of majority. Id. The court stated that Minn. Stat. § 541.15 would have operated to provide him a one-year period after his 21st birthday within which to commence suit.[3] Id.

Minn. Stat. § 541.15(a) does not have any practical effect on the limitations period for J.K.B.'s claim. It would only be at issue if the six-year period had expired during her infancy and, in that case, it would have simply given her another year after her 18th birthday to file.[4]

Because J.K.B.'s August 1993 complaint was filed more than six years after the discovery date (sometime before her 18th birthday in June 1987), her suit is barred.

IV. Validity of Blackowiak

J.K.B. claims that Blackowiak, 546 N.W.2d 1, misconstrues Minn. Stat. § 541.073, but as there is no authority that would allow us simply to "overrule" the supreme court's decision, we do not address the argument further.


[ ]* 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 J.K.B. reached a settlement with her father, and he was dismissed from the suit. He is not a party to this appeal.

[ ]2 The district court's order mistakenly states the year of her 18th birthday, but we do not think that there is any dispute that she was born in June 1969 and therefore turned 18 in 1987.

[ ]3 The ultimate issue in the case concerned the effect of the lowering of the age of majority after his cause of action accrued but before he filed suit. Anderson, 257 N.W.2d at 561-62.

[ ]4 We note that the district court was technically wrong in holding that she had six years from the date of her 18th birthday. The statute of limitations began to run (unaffected by the infancy tolling statute) on the date of discovery, which the district court found was at some time before her 18th birthday.