Doe v. Green

904 S.E.2d 307

81 Va.App. 556

Jane DOE

v.Joseph Robert GREEN, Jr.

Record No. 1450-22-4

Court of Appeals of Virginia, Alexandria.

August 6, 2024

West Codenotes

Limited on Constitutional Grounds

Va. Code Ann. § 8.01-249(6)

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Dontaé L. Bugg, Judge

Jennifer L. Leffler (LefflerPhillips, PLC, on briefs), for appellant.

T. Wayne Biggs, Fairfax (Clifford Clapp; Skyler Peacock; Dycio & Biggs, on brief), for appellee.

Present: Judges Chaney, Callins and White

OPINION BY JUDGE VERNIDA R. CHANEY

₅₆₁In this case of first impression, we address the question of whether Code § 8.01-249(6) permits a delayed action for childhood sexual abuse. In 2021, Jane Doe sued Joseph Robert Green for negligence, battery, and intentional infliction of emotional distress arising from sexual abuse that she suffered between 2005 and 2006—when she was a minor. Green filed a plea in bar arguing that Doe’s claims were subject to a two-year statute of limitations that began to run on the day she attained the age of majority and were, therefore, time-barred as of December 2010. The circuit court granted the plea in bar on the grounds that the statute of limitations barred Doe’s claims. Doe appealed, arguing that Code § 8.01-249(6) permitted her claims. Finding no error, this Court affirms the judgment of the circuit court.

Background

This case reaches appeal following the circuit court’s order granting Green’s plea in bar asserting that Doe’s claims were "barred by the applicable statute of limitations." Since the circuit court received no evidence supporting the plea in bar, this Court considers "solely the pleadings in resolving the issue presented" and deems the facts stated in the complaint to be true. Fines v. Rappahannock Area Cmty. Servs. Bd., 301 ₅₆₂Va. 305, 312, 876 S.E.2d 917 (2022) (quoting Massenburg v. City of Petersburg, 298 Va. 212, 216, 836 S.E.2d 391 (2019)).

Around June 2005, when Doe was 14 years old, she alleges that she began engaging in regular sexual intercourse with Green, who was 33 years old at the time. This alleged abuse continued through the middle of 2006. As a result, Doe reportedly suffered from eating and exercise disorders, low self-esteem, suicidal ideation, and emotional disturbances. In September 2006, when Doe was 15 years old, she attempted to escape the abuse by fleeing to New York. There, she struggled with housing instability and attempted suicide.

After Doe had been living in New York for two months, police brought her back to Virginia. Doe was angry with her parents for not protecting her from Green and was arrested after she assaulted her mother. Following her release from juvenile detention, Doe dropped out of high school and quit soccer. When Green contacted Doe in 2009, she reported him to police.¹

Doe asserts that her emotional struggles continued as a young adult. She reportedly suffered from anxiety, nightmares, flashbacks, problems with sleep and concentration, suicidal thoughts, and difficulty forming romantic relationships. Doe alleges the emotional turmoil caused her to drop out of college.

In May 2021, Doe’s licensed clinical psychologist diagnosed her with Post-Traumatic Stress Disorder (PTSD) and informed her that the condition resulted from the sexual abuse she allegedly suffered.

On September 17, 2021, Doe filed a complaint in the circuit court bringing claims of assault, battery, and intentional infliction of emotional distress against Green.² Green filed a plea in ₅₆₃bar asserting that the statute of limitations barred Doe’s claims. He argued that the statute of limitations on Doe’s claims expired on December 25, 2010, two years after she attained the age of majority, and, thus, her claims were time-barred.

Code § 8.01-249(6) currently states that a plaintiff's claim accrues on the date on which a psychologist "first communicates" to her "the fact of the injury and its causal connection to the sexual abuse." Green contended that Doe’s claims were governed by the 2005 version of the statute (2005 Accrual Statute), in effect at the time of Doe’s abuse, which also included language expressly requiring that the plaintiff not know of the "fact of injury or its casual connection to the sexual abuse" before reaching the age of majority in order to be eligible for delayed accrual. Although the language concerning knowledge is absent from the newest version of the statute (2021 Accrual Statute),³ Green argued that the version of the statute now in effect did not apply to Doe’s claims because it did not apply retroactively to reach causes of action arising before its enactment. Green maintained that under the language of the 2005 Accrual Statute, Doe's cause of action accrued when she reached the age of majority.

Using the same rationale, Green argued that the 2011 enactment of Code § 8.01-243(D), extending the statute of limitations from 2 to 20 years for claims arising from childhood sexual abuse, also did not apply to Doe’s claims. Green argued that the claims were subject instead to the ordinary two-year limitations period for personal injury claims in Code § 8.01-243(A).

Doe argued that both the 20-year limitations period and the 2021 Accrual Statute were retroactive to her claims because of ₅₆₄a 1995 amendment to the Virginia Constitution permitting statutes of limitations to be retroactive (1995 Amendment). Doe also argued that, even if neither statute applied retroactively, her claims did not accrue under the 2005 Accrual Statute until May 2021 and she had brought her claims within two years of this date. Doe contended she did not know that she suffered from PTSD or that it was causally connected to the alleged abuse and that the diagnosis and causation were first communicated to her by her psychologist many years after she had reached the age of majority.

The circuit court granted Green’s plea in bar and dismissed Doe’s claims. First, the court agreed with Green that neither the 20-year limitations period nor the 2021 Accrual Statute was retroactive. Therefore, the court held that the 2005 Accrual Statute governed Doe’s claims and that the claims were subject to a 2-year rather than 20-year limitations period. Citing the Supreme Court of Virginia’s holding in Haynes v. Haggerty, 291 Va. 301, 784 S.E.2d 293 (2016), the circuit court next concluded that Doe’s claims accrued when she attained the age of majority rather than on the date that she was diagnosed with PTSD because the sexual abuse she suffered "inherently caused her injury as it occurred." Doe timely appealed.

Analysis

[1, 2] "A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s recovery." Cornell v. Benedict, 301 Va. 342, 349, 878 S.E.2d 191 (2022) (quoting Massenburg, 298 Va. at 216, 836 S.E.2d 391). "The movant bears the burden of proof on such a plea, and if evidence is presented ore tenus, the circuit court’s factual findings ‘are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.’ " Id. (quoting Massenburg, 298 Va. at 206, 836 S.E.2d 391).

[3] "Where no evidence is taken in support of the plea, the trial court, and the appellate court upon review, must rely ₅₆₅solely upon the pleadings in resolving the issue presented." Robinson v. Nordquist, 297 Va. 503, 513-14, 830 S.E.2d 36 (2019) (quoting Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882 (1996)). "In doing so, the facts stated in the plaintiff's [complaint] are deemed true." Massenburg, 298 Va. at 216, 836 S.E.2d 391 (alteration in original) (quoting Lostrangio v. Laingford, 261 Va. 495, 497, 544 S.E.2d 357 (2001)). "This approach results in functionally de novo review of the trial court’s judgment." Id.

On appeal, Doe assigns four errors to the circuit court’s grant of Green’s plea in bar.⁴ First, the circuit court erred in finding that Doe’s claim was subject to a two-year statute of limitations that accrued when she attained the age of majority. Second, the circuit court erred in finding that the 2021 Accrual Statute is not retroactive. Third, the circuit court erred in using Haynes to determine that Doe’s cause of action accrued when she reached the age of majority rather than when a psychologist diagnosed her with PTSD. Finally, if this Court finds that the circuit court correctly applied Haynes, Doe argues it should be overruled.

I. The 2021 Accrual Statute is not retroactive.⁵

[4, 5] Doe argues that the trial court erred by finding that her claim "was subject to a two-year statute of limitations that began to run on her eighteenth birthday" and that "there is ₅₆₆not clear legislative intent to make the 2021 version of Va. Code § 8.01-249 retroactive." We disagree.

[6–8] "A circuit court’s ‘decision on a plea in bar of the statute of limitations involves a question of law that we review de novo.’ " Evans v. Truist Bank, 77 Va. App. 140, 144, 884 S.E.2d 818 (2023) (quoting Radiance Cap. Receivables Fourteen, LLC v. Foster, 298 Va. 14, 19, 833 S.E.2d 867 (2019)). Likewise, whether to apply a statute of limitations retroactively is a question of law that we review de novo. Sink v. Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670 (1998). Furthermore, "[w]e review issues of statutory interpretation and a circuit court’s application of a statute to its factual findings[ ] de novo." Cole v. Smyth Cnty. Bd. of Supervisors, 298 Va. 625, 635, 842 S.E.2d 389 (2020).

[9] As a general rule, an action for personal injury accrues and the statute of limitations begins to run on "the date the injury is sustained." Code § 8.01-230; Kiser v. A.W. Chesterton Co., 285 Va. 12, 22, 736 S.E.2d 910 (2013). Code § 8.01-243(A) provides that "every action for personal injuries, whatever the theory of recovery … shall be brought within two years after the cause of action ac- crues." If a plaintiff's cause of action accrued during infancy, however, "the time during which [s]he is within the age of minority shall not be counted as...