BUSCHMANN v. KENNAUGH (2008)

PUBLISHED IN PART

¶ 1 John Kennaugh appeals the judgment against him for intentional sexual abuse that he committed against his step-brother, Ronn Buschmann, when they both were children.   He argues that this 2005 action is untimely for the alleged abuse in the 1950s.   Specifically, he argues that the extended limitations period of RCW 4.16.340 does not apply to tortious sexual conduct by juveniles.   He also argues that this action should be dismissed because Buschmann lacks standing.   He bases this request for relief on Buschmann's failure to list the claims here as contingent or unliquidated claims on the schedules when he filed for bankruptcy sometime in the 1970s.   According to Kennaugh, the failure to list this asset in the bankruptcy means that it remains an asset of the bankrupt's estate, not a claim that Buschmann may assert.   Because this action is timely under RCW 4.16.340 and we are not persuaded that dismissal for lack of standing is the proper remedy, we affirm.

¶ 2 Because Kennaugh does not assign error to any of the trial court's findings of fact, they are verities on appeal.¹  Moreover, he does not argue that there was any genuine issue of material fact that existed at the time the court denied his pretrial motion for summary judgment.   Accordingly, we state the facts largely along the lines of the unchallenged findings following the bench trial.

¶ 3 Kennaugh sexually abused his step-brother, Buschmann, when they were both children in the 1950s.   Kennaugh is a little over five years older than Buschmann.

¶ 4 The acts occurred on at least two occasions between the years 1955 and 1957.   Although he experienced pain throughout that time and afterward, Buschmann was unable to appreciate the psychological nature of his injuries until sometime after June 2002.

¶ 5 In June 2005, Buschmann commenced this action against Kennaugh, alleging the torts of battery, assault, intentional infliction of emotional distress, childhood sexual abuse, and outrage.   Kennaugh moved for summary judgment, arguing that RCW 4.16.340, the extended limitations statute, does not apply to cases of sexual abuse by children.   He also argued that Buschmann does not have standing to bring this action due to his bankruptcy filing sometime between 1974 and 1976.   He argued that Buschmann did not list his claims here as a potential asset.   Thus, Kennaugh argued that the claims here remain an asset of the bankruptcy estate that Buschmann may not pursue on his own.   The trial court denied the motion.

¶ 6 After a bench trial, the court found Kennaugh liable for intentional sexual abuse, awarded damages of $46,500.00 plus statutory costs, and entered judgment in that amount.

¶ 7 Kennaugh appeals.

STATUTE OF LIMITATIONS

 ¶ 8 Kennaugh argues that RCW 4.16.340, which extends the statute of limitations in cases involving childhood sexual abuse, does not apply to him.   We disagree.

¶ 9 Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.²  The interpretation of a statute is an issue of law that is appropriate for disposition on summary judgment.³  We review the trial court's interpretation of a statute de novo.⁴

 ¶ 10 We give words in a statute their plain and ordinary meaning unless the statute indicates otherwise.⁵  Where the statutory language is clear and unambiguous, we determine the statute's meaning from its language alone without considering outside sources.⁶  A statute is to be considered as a whole, with effect given to all the language used.⁷  Related statutory provisions are interpreted in relation to each other, and all provisions should be harmonized.⁸

¶ 11 Kennaugh argues that all claims in this action are barred under either a two-year or three-year statute of limitations that normally apply to tortious conduct.⁹  He also contends that the extended limitations statute for intentional sexual abuse, RCW 4.16.340, does not apply to sexual acts committed by one child against another.   The plain words of RCW 4.16.340 dictate otherwise.

¶ 12 RCW 4.16.340 states in part:

(1) All claims or causes of action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within the later of the following periods:

(c) Within three years of the time the victim discovered that the act caused the injury for which the claim is brought․ [10]

“Childhood sexual abuse” is defined as:

any act committed by the defendant against a complainant who was less than eighteen years of age at the time of the act and which act would have been a violation of chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of similar effect at the time the act was committed.[11]

¶ 13 Under the Juvenile Justice Act, offenses are defined in reference to the general criminal law.   Specifically, an “offense” under the Juvenile Justice Act is:

an act designated a violation or a crime if committed by an adult under the law of this state, under any ordinance of any city or county of this state, under any federal law, or under the law of another state if the act occurred in that state․ [12]

¶ 14 Reading these statutes together, it is clear that an “act” for purposes of the “childhood sexual abuse” definition includes any violation of the cited criminal statutes.   Likewise, “offenses” under the Juvenile Justice Act include the same criminal statutes.   Because juvenile offenses share the same definitions as the criminal law, nothing in the plain language of RCW 4.16.340 limits its application to those who are adult perpetrators.   The statute unambiguously applies to children as well as adult defendants.

¶ 15 Here, the trial court properly applied RCW 4.16.340 to Buschmann's intentional sexual abuse claim against Kennaugh.   Specifically, statutes in effect in the 1950s criminalized sodomy and indecent liberties.¹³  Kennaugh's acts against Buschmann meet the elements of those crimes.¹⁴  Then, as now, juveniles could be punished for a violation of offenses such as these.¹⁵  Thus, the acts qualify under the definition of “ childhood sexual abuse.”   The court properly decided that RCW 4.16.340 extends the statute of limitations for Buschmann's claim for childhood sexual abuse.

¶ 16 Kennaugh argues that juveniles were unable to commit “crimes” in the 1950s, as they are now.   He states that “[u]nder the clear language of the statute, the act must have constituted a crime.” ¹⁶  That is incorrect.

¶ 17 RCW 4.16.340 does not reference “crimes,” it refers to “acts” and “conduct.”   It does not require that a “crime” was committed.   It merely defines “childhood sexual abuse” with reference to definitions of crimes in the criminal code-the same definitions referenced in the Juvenile Justice Act.

¶ 18 Kennaugh also argues that the “legislative history” of RCW 4.16.340 illustrates that the legislature never intended to extend the limitations in cases involving child abusers.¹⁷  Because the plain words of the statute make clear the legislature's intent, there is no need to construe the statute by looking to legislative history or other documents.¹⁸

¶ 19 We affirm the judgment.

¶ 20 The remaining issues in this opinion are not of precedential importance.   Accordingly, the remainder of this opinion is not published.¹⁹

STANDING

¶ 21 Kennaugh's remaining argument is that this case should have been dismissed.   He bases this request for relief on the assertion that the claims here remain an asset of the bankruptcy estate because Buschmann failed to disclose them in his filing for bankruptcy sometime in the 1970s.   We hold that Kennaugh has failed to show that dismissal is a proper remedy.

¶ 22 First, as Buschmann correctly notes, the only evidence in this record regarding Buschmann's bankruptcy filing is in his deposition testimony, which Kennaugh used in support of his motion for summary judgment.   The portion of the testimony relevant to this issue is as follows:

Q Have you ever filed for bankruptcy protection?

A Yes.

Q On how many occasions?

A Once.

Q When was that?

A I believe it was ′74. Might have been ′75. Might have been ′76.

It was somewhere in that time period.

Q Were you married at the time?

A Yes.

Q And did you file jointly with Ms. Rasch?

A Yes.

Q Did you have an attorney assisting you in that?

A Yes.

Q What was the reason that you sought bankruptcy protection?

A Well, I think I got a little bit of bad legal advice, actually. Our liabilities exceeded our assets, but in retrospect not by enough to make it worthwhile.   I mean, I paid most of the money back anyway, so it was kind of a foolish thing to do.   But that was the legal advice I received at the time.

Q How old were you when you did that?

A Must have been 25.

Q This was after all of the physical abuse by John Kennaugh, correct?   It was after?   There was no physical abuse by John Kennaugh that occurred after that point?

A No.

․

Q Okay. When you filed for bankruptcy protection, did you identify your potential claim against John Kennaugh for abuse as an asset of the estate?

A Of course not.[20]

¶ 23 Buschmann's affirmative response to the question whether he had ever “filed for bankruptcy protection” tells us nothing about the type of bankruptcy proceeding in which he was involved.   For purposes of analysis of the standing issue, this lack of clarity is important.

¶ 24 Kennaugh correctly argues that there are circumstances in which courts have concluded that the bankruptcy debtor does not have standing to bring certain claims because even contingent and unliqudated claims belong to the bankruptcy estate.21  In those cases, the bankruptcy trustee, not the debtor, is the real party in interest because only the trustee has authority to act on behalf of the bankruptcy estate.22

¶ 25 However, Kennaugh ignores another important body of case law in which courts have concluded that the bankruptcy debtor is the real party in interest under different circumstances.23  More specifically, in a Chapter 13 proceeding, unlike a Chapter 7 proceeding, the debtor in possession remains in possession of his or her assets.24  Thus, in a Chapter 13 proceeding, the debtor in possession has standing to bring causes of action in his or her own name, even if he or she failed to disclose them at the time of the bankruptcy filing.25

¶ 26 Here, the record is silent on the type of bankruptcy proceeding in which Buschmann was involved when he sought bankruptcy protection sometime in the 1970s.   There is nothing to show whether his was a Chapter 7 or a Chapter 13 proceeding.   Without this important information, Kennaugh cannot establish his assertion that Buschmann has no standing to bring the claims in this case.   Thus, the trial court properly denied summary judgment on this basis alone.

¶ 27 Moreover, even if we assume the claims here became the property of the bankruptcy estate in the 1970s, we are not persuaded that this case should be dismissed on the theory that only the bankruptcy trustee has standing.

¶ 28 First, Kennaugh has cited no relevant authority to support dismissal as the appropriate remedy under the circumstances of this case.   Second, courts do not support dismissal as a remedy without an opportunity to join or substitute the real party in interest.26

¶ 29 In a decision of the United States Bankruptcy Appellate Panel of the Ninth Circuit, the panel discussed such a nuanced approach to the question of remedy.27  There, a debtor under the Bankruptcy Code made certain representations to the court that were later challenged.   The question was whether judicial estoppel should apply.   The court observed that a debtor may “forget” to schedule a cause of action and then remember to pursue it after the bankruptcy case is closed.28  In such event, a correct solution is often to reopen the case and order the appointment of a trustee.29

¶ 30 Assuming without deciding that Buschmann does not have standing in this case, the better option would be a motion by Kennaugh to reopen the bankruptcy proceeding to give the trustee the option to administer the claims asserted here.   We, of course, recognize that such a motion does not improve Kennaugh's position in this case.   On this record, he remains liable for the judgment imposed against him.   We conclude that he has failed to make a case for the remedy of dismissal that he seeks.

¶ 31 Buschmann argues that he had no obligation to list the claims here on any schedules in the bankruptcy proceedings in the 1970s.   Because our resolution of the other issues in this case is dispositive, we need not address this argument.

¶ 32 We affirm the judgment.

FOOTNOTES

1.   Robel v. Roundup Corp., 148 Wash.2d 35, 42, 59 P.3d 611 (2002).

2.   CR 56(c).

3.   Castro v. Stanwood Sch. Dist. No. 401, 151 Wash.2d 221, 224, 86 P.3d 1166 (2004).

4.   Id.

5.   C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wash.2d 699, 708, 985 P.2d 262 (1999).

6.   Id.

7.   Id.

8.   Id.

9.   See RCW 4.16.080;  RCW 4.16.100.

10.   (Emphasis added.)

11.   RCW 4.16.340(5) (emphasis added).

12.   RCW 13.40.020(19);  see also RCW 13.40.0357 (describing juvenile offenses and corresponding sentences by reference to crimes in the adult criminal statutes).

13.   Former RCW 9.79.100 (1937);  former RCW 9.79.080(2) (1955).

14.   Buschmann testified that Kennaugh touched him in ways that would have constituted sodomy (carnally knowing a person with the mouth or submitting to such carnal knowledge) and indecent liberties (indecent or obscene exposure with a minor).   See Report of Proceedings (Mar. 20, 2007) at 197-98.

15.   Former RCW 13.08.080 (1905).

16.   Brief of Appellant at 13.

17.   Kennaugh provided this court with undated copies of the following two documents:  Memorandum prepared by Northwest Women's Law Center, “Proposed Legislation Regarding the Statute of Limitations for Civil Suits Brought by Adult Survivors of Incest or Childhood Sexual Abuse”;  Memorandum prepared by Jana Mohr representing Patti Barton, “Summary of Legislation Regarding the Statute of Limitations in Civil Childhood Sexual Abuse Cases.”   Both were cited in C.J.C., 138 Wash.2d at 713 n. 6, 985 P.2d 262 (characterizing these memoranda as “brief summaries”).

18.   See C.J.C., 138 Wash.2d at 708, 985 P.2d 262 (citing Multicare Med. Ctr. v. DSHS, 114 Wash.2d 572, 582, 790 P.2d 124 (1990)).

19.   See RCW 2.06.040.

FN20.  Clerk's Papers at 33..  FN20.  Clerk's Papers at 33.

FN21.  E.g., Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir.1988);  Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705 (9th Cir.1986)..  FN21.  E.g., Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir.1988);  Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705 (9th Cir.1986).

FN22.  See In re Eisen, 31 F.3d 1447, 1451 n. 2 (9th Cir.1994);  Sierra, 789 F.2d at 710..  FN22.  See In re Eisen, 31 F.3d 1447, 1451 n. 2 (9th Cir.1994);  Sierra, 789 F.2d at 710.

FN23.  E.g., Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515-16 (2nd Cir.1998)..  FN23.  E.g., Olick v. Parker & Parsley Petroleum Co., 145 F.3d 513, 515-16 (2nd Cir.1998).

FN24. Cable v. Ivy Tech. State College, 200 F.3d 467, 472 (7th Cir.1999);  In re Griner, 240 B.R. 432, 436 (S.D.Ala.1999);  11 U.S.C. §§ 1306(b), 1327(b)..  FN24. Cable v. Ivy Tech. State College, 200 F.3d 467, 472 (7th Cir.1999);  In re Griner, 240 B.R. 432, 436 (S.D.Ala.1999);  11 U.S.C. §§ 1306(b), 1327(b).

FN25. Olick, 145 F.3d at 515-16 (“[W]e conclude that a Chapter 13 debtor, unlike a Chapter 7 debtor, has standing to litigate causes of action that are not part of a case under title 11․ [A] Chapter 13 debtor's standing is different.”) (emphasis added);  Griner, 240 B.R. at 436-37 (because of this difference between Chapter 13 and Chapter 7 possession, debtor had standing to bring lawsuit that was not disclosed in asset schedule);  Haslett v. Planck, 140 Wash.App. 660, 664, 166 P.3d 866 (2007) (Chapter 13 debtor was real party in interest with respect to a personal injury claim that had not been disclosed in the bankruptcy proceeding)..  FN25. Olick, 145 F.3d at 515-16 (“[W]e conclude that a Chapter 13 debtor, unlike a Chapter 7 debtor, has standing to litigate causes of action that are not part of a case under title 11․ [A] Chapter 13 debtor's standing is different.”) (emphasis added);  Griner, 240 B.R. at 436-37 (because of this difference between Chapter 13 and Chapter 7 possession, debtor had standing to bring lawsuit that was not disclosed in asset schedule);  Haslett v. Planck, 140 Wash.App. 660, 664, 166 P.3d 866 (2007) (Chapter 13 debtor was real party in interest with respect to a personal injury claim that had not been disclosed in the bankruptcy proceeding).

FN26. Civil Rule 17 states, “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest․” See also 10 Collier on Bankruptcy ¶ 7017.02 (2008) ( “The reported decisions generally are hostile to dismissal” under the parallel bankruptcy rule, Bankruptcy Rule 7017.)..  FN26. Civil Rule 17 states, “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest․” See also 10 Collier on Bankruptcy ¶ 7017.02 (2008) ( “The reported decisions generally are hostile to dismissal” under the parallel bankruptcy rule, Bankruptcy Rule 7017.).

FN27. In re An-Tze Cheng, 308 B.R. 448, 460-61 (9th Cir.2004)..  FN27. In re An-Tze Cheng, 308 B.R. 448, 460-61 (9th Cir.2004).

FN28. Id. at 460..  FN28. Id. at 460.

FN29. Id. (citing Johnson v. Si-Cor Inc., 107 Wash.App. 902, 906-13, 28 P.3d 832 (2001))..  FN29. Id. (citing Johnson v. Si-Cor Inc., 107 Wash.App. 902, 906-13, 28 P.3d 832 (2001)).

COX, J.