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Dymit v. Independent School District #71712/14/2004
idence of fraudulent statements or intentional concealment. Murphy v. Country House, Inc., 307 Minn. 344, 350, 240 N.W.2d 507, 512 (1976); Cohen v. Appert, 463 N.W.2d 787, 790 (Minn. App. 1990), review denied (Minn. Jan. 24, 1991). Even if a fiduciary duty is established, the limitation period is only tolled until the necessary facts are or could have been discovered by the beneficiary through reasonable diligence. Cohen, 463 N.W.2d at 790-91.
Dymit was aware of the conduct constituting abuse at all times. Dymit had all of the information necessary to bring an action for sexual abuse or negligence on the part of the school district. The only additional fact that the school possessed at the time of Dymit's graduation (when, presumably, any possible fiduciary duty would end) was that Simon had been investigated for and cleared of an improper sexual conduct allegation. This information is insignificant when compared to what Dymit knew about his own situation. If this court determined that a fiduciary duty existed, Dymit's knowledge of the key facts would still run the limitations period. See Cohen, 463 N.W.2d at 790-91.
In addition, there is no evidence of an affirmative act of concealment or the type of misrepresentation through silence necessary to establish fraudulent concealment or breach of a fiduciary duty. For these reasons, we conclude the limitations period under Minn. Stat. § 541.073 was not tolled.
III.
The third issue is whether the general statute of limitations with respect to negligence applies to appellant's allegations of negligence against the school district. That general statute provides that negligence claims are subject to a six-year limitation. Minn. Stat. § 541.05, subd. 1(5) (2002). Minn. Stat. § 541.073, subd. 3 covers actions against a person who negligently permitted sexual abuse against the plaintiff to occur. In D.M.S., the court acknowledged that generally personal injury actions based on negligence are considered under Minn. Stat. § 541.05, but then considered the plaintiff's negligent hiring, supervision and retention claims arising out of sexual abuse under Minn. Stat. § 541.073. 645 N.W.2d at 386-90. Likewise, in ABC v. Archdiocese of St. Paul & Minneapolis, the court examined negligence claims against the archdiocese for the sexual abuse by a priest under Minn. Stat. § 541.073. 513 N.W.2d 482, 485 (Minn. App. 1994). Since both the plain meaning of the statute and the caselaw indicate that sexual abuse actions should be brought under Minn. Stat. § 541.073, appellant's claim against the school district is governed by this section.
VI.
Respondent Jordan School District moves to strike certain materials from Dymit's appendix and the portions of Dymit's brief which refer to them because they were not included in the district court record. These materials are primarily related to the testimony of Simon's other victims. Dymit argues that they are part of the record because they were referenced in an interrogatory included in the trial record. They were not attached to the interrogatory or filed in the district court and are thus not part of the record on appeal. The school district's motion to strike is granted.
Affirmed; motion to strike granted.
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