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Dunford v. Tryhus

December 15, 2009

JEFFREY ALLEN DUNFORD, PLAINTIFF AND APPELLANT
v.
DR. TRUEMAN E. TRYHUS, JR., DEFENDANT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

The opinion of the court was delivered by: Crothers, Justice.

AFFIRMED.

[¶1] Jeffrey Dunford appeals the district court's summary judgment to Dr. Trueman Tryhus, Jr. We affirm, concluding the district court did not err in determining Dunford's claim was barred by the statute of limitations.

I.

[¶2] Tryhus practiced dentistry in Fargo from 1958 through 1993. Dunford was born in 1954 and became a patient of Tryhus in the mid- 1960s. Dunford alleges Tryhus sexually abused him between 1965 and 1969.

[¶3] In 1988, Dunford asked a non-lawyer friend in the Fargo area for information regarding the statute of limitations on sexual abuse claims. Dunford was informed the statute of limitations was two years from the incident of abuse. In the early 1990s, Dunford sent a letter confronting Tryhus about the alleged abuse. The letter informed Tryhus of problems caused by the alleged abuse, and Tryhus acknowledged receiving the letter. At his deposition, Dunford claimed to have vividly remembered the alleged abuse since its occurrence.

[¶4] On March 24, 2006, Dunford met with Dr. Margaret Drew, a clinical psychologist from La Jolla, California. Dr. Drew diagnosed Dunford with post-traumatic stress disorder, but no further counseling was undertaken. Dunford commenced this action on February 28, 2008, and Tryhus moved for summary judgment on February 13, 2009, asserting Dunford's claim was barred by the statute of limitations. Following a hearing, the district court determined Dunford's claim was time-barred and granted summary judgment to Tryhus. Dunford timely filed this appeal.

II.

[¶5] The standard of review for summary judgment is well-established, and this Court has explained:

"Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from the undisputed facts, or if the only issues to be resolved are questions of law. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45. A party moving for summary judgment must show there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. On appeal, we view the evidence in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. Ruggles v. Sabe, 2003 ND 159, ¶ 2, 670 N.W.2d 356. We review a district court's decision to grant summary judgment de novo on the entire record. Fetch v. Guam, 2001 ND 48, ¶ 8, 623 N.W.2d 357."

Witzke v. City of Bismarck, 2006 ND 160, ¶ 7, 718 N.W.2d 586.

A.

[¶6] We explained the purpose and characteristics of statutes of limitations in Tarnavsky v. McKenzie County Grazing Ass'n:

"Statutes of limitation are designed to prevent plaintiffs from sleeping on their legal rights and bringing stale claims to the detriment of defendants. See Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 910-11 (N.D. 1992). Statutes of limitations are a legal bar to a cause of action and begin to run when the underlying cause of action accrues. Abel v. Allen, 2002 ND 147, ¶ 10, 651 N.W.2d 635. The determination of when a plaintiff's cause of action has accrued is generally a question of fact, but if there is no dispute about the relevant facts, the determination is for the court. Id. at ¶ 11. A cause of action accrues when the right to commence the action comes into existence and can be brought in a court of law without being dismissed for failure to state a claim. Id. at ¶ 12. We have recognized statutes of limitation ordinarily began to run from the commission of the wrongful act giving rise to the cause of action, see BASF Corp. v. Symington, 512 ...


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