County District Court No. 15CV31554 Honorable Ted C. Tow,
Rosen Fuller P.C., Graham Fuller, Boulder, Colorado; Erin B.
Eastvedt, Longmont, Colorado, for Plaintiff-Appellant
H. Stevens, Thornton, Colorado, for Defendant-Appellee
1 This case requires us to decide whether the record contains
any disputed facts that plaintiff, T.D., was under a
"legal disability" for purposes of tolling the
applicable statute of limitations. Neither the General
Assembly nor Colorado appellate courts have defined this
2 We hold that "legal disability" for purposes of
section 13-80-103.7(3.5)(a), C.R.S. 2016, means an inability
to bring a lawsuit based on some policy of the law. Because
we conclude that the record does not contain any disputed
facts about the question whether T.D. was under a "legal
disability" and because we disagree with T.D.'s
other contentions, we affirm the trial court's decision
to grant the summary judgment motion that defendant, Gilbert
Wiseman, had filed.
3 T.D.'s complaint alleged that she had endured ten years
of sexual and physical abuse at the hands of defendant, her
former stepfather. The complaint added that defendant had
raped her, that he had forced her to perform oral sex on him,
and that he would "physically beat [her] up . . . and
smother her with pillows." She alleged that she was
seven years old when the abuse began and that it continued
until about 1990, when she was in high school.
4 T.D. alleged that the abuse caused her to become
"dependent on drugs and alcohol." She also suffered
from post-traumatic stress disorder, psychological disorders,
self-mutilation, eating disorders, depression, and a
"cycle of abusive relationships."
5 In August 2005, T.D. disclosed defendant's alleged
abuse to the doctors who had been treating her for her
various physical and psychological issues. Copies of the
doctors' notes in the record state that she had told them
that defendant "molested [her] as [a] child between 7-13
[years old]" and that she had reported that defendant
"sexually molested her from age 7 through 13." She
also told the doctors that her mother had believed her outcry
about the abuse, but that her mother could not stand up to
defendant. (We could not find an explanation in the record of
the inconsistency between T.D.'s statement to the doctors
that defendant had abused her for about six years and her
statement in the first amended complaint that he had abused
her for about ten years.)
6 T.D. tried to kill herself in 2012. She sobered up after
this unsuccessful attempt. Once she had become sober, she
alleged that she had "realized that she had been injured
by defendant's actions and attributed those injuries to
the assaults perpetrated upon her."
7 Defendant and T.D.'s mother divorced in 2015. That same
year, T.D. learned that she had "significant
abnormalities of the low back, abdominal wall, [and] pelvic
floor." Her doctors thought that these injuries were
"associated" with "early
8 T.D. filed a lawsuit against defendant in the fall of 2015.
She asserted assault, battery, sexual assault and battery,
extreme and outrageous conduct, and false imprisonment
9 Defendant filed a motion for summary judgment. He asserted
that T.D.'s claims had accrued when she disclosed the
alleged abuse to her doctors in 2005. As a result, defendant
asserted, T.D.'s claims were time barred by the six-year
statute of limitations found in section 13-80-103.7(1)
because she should have filed her lawsuit no later than 2011.
10 T.D. countered that the record before the trial court
contained genuine issues of fact concerning whether she had
been a "person under disability" until 2012 because
of her addictions and psychiatric disorder. If she had been
such a person, then the statute of limitations would have
been tolled until her disability had lifted. She added that
there were also disputed facts about when her claims had
11 The trial court granted defendant's motion for summary
judgment. It decided that there were no genuine issues of
material fact in the record about when T.D.'s claims
accrued or about whether the statute of limitations barred
Summary Judgment Principles
12 Summary judgment is a "drastic remedy, "
Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146
(Colo. 2007), that is appropriate only if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits . . . show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law, " C.R.C.P. 56(c). The nonmoving party is
entitled to the benefit of all favorable inferences that a
court can reasonably draw from the undisputed facts.
Brodeur, 169 P.3d at 146. And the court must resolve
all doubts against the moving party. Id.
13 We review a trial court's decision to grant a motion
for summary judgment de novo. Select Energy Servs., LLC
v. K-LOW, LLC, 2017 CO 43, ¶ 12.
14 The trial court decided that T.D.'s claim accrued in
2005. To the extent that T.D. asserted in a footnote in the
opening brief that the record contained disputed facts about
when her claims accrued, we decline to address this claim.
She only made a cursory reference to this assertion, and she
did not provide any analysis or authority. See Prospect
34, LLC v. Gunnison Cty. Bd. of Cty. Comm'rs, 2015
COA 160, ¶ 28 (noting that if an appellant makes a
conclusory argument, without citation to any authority
supporting the position, we may decline to address it);
see also People v. Aguilar, 2012 COA 181, ¶ 36
(noting that appellant had abandoned a claim raised below but
not reasserted on appeal).
15 Because the issue of when the claim accrued is not
properly before us, we do not have to decide when it accrued.
We will instead assume that it accrued, at the latest, in
Tolling the Statute of Limitations
16 We next address this question: Does the record contain a
factual dispute about whether the applicable statute of
limitations was tolled because, under the statute, T.D. was a
"person under disability"? We answer this question
17 Civil suits based on allegations that a defendant sexually
abused a child must be brought within six years after either
(1) the cause of action accrues; or (2) "a disability
has been removed for a person under disability, "
whichever occurs later. § 13-80-103.7(1).
18 A plaintiff is a "person under disability" for
the purposes of tolling the statute of limitations if she is
(1) "a minor under eighteen years of age"; (2)
"declared mentally incompetent"; (3) "under
other legal disability and who does not have a legal
guardian"; or (4) "in a special relationship with
the perpetrator of the assault" and
"psychologically or emotionally unable to acknowledge
the assault ...