T.D. v. Wiseman

COLORADO COURT OF APPEALS 2017COA111

Court of Appeals No. 16CA1274
Adams County District Court No. 15CV31554
Honorable Ted C. Tow, Judge

T.D.,

Plaintiff-Appellant,

v.

Gilbert Wiseman,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE BERNARD
Dailey and Fox, JJ., concur

Announced August 10, 2017

Stone Rosen Fuller P.C., Graham Fuller, Boulder, Colorado; Erin B. Eastvedt,
Longmont, Colorado, for Plaintiff-Appellant

Paul 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 phrase.

¶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.

I. Background

¶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.”

1
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

2
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

victimization/traumatization.”

¶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 claims.

¶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

3
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 accrued.

¶ 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 those claims.

II. 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.

4
¶ 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.

III. Claim Accrual

¶ 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 2005.

IV. Tolling the Statute of Limitations

5
¶ 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 “no.”

A. Tolling Provisions

¶ 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

or offense and the resulting harm.” § 13-80-103.7(3.5)(a).

1. “A Minor under Eighteen Years of Age”

¶ 19 T.D. has not been a minor since the very early 1990s. Her

first amended complaint alleged that defendant began abusing her

in 1980, when she was “approximately” seven years old, and that he

6
continued to sexually assault her until 1990, when she was

“approximately” seventeen years old. The record indicates that she

was forty-three years old when the trial court granted defendant’s

summary judgment motion in 2016. We therefore conclude that the

record establishes that she was not a minor from 2005 to 2011,

when the statute of limitations was running.

¶ 20 So our next task is to decide whether the record contained

disputed facts that T.D. was “mentally incompetent,” “a person

under other legal disability,” or in a “special relationship” with

defendant and “psychologically or emotionally unable to

acknowledge” the offense and harm. See id. We apply the statutory

definitions of these terms in effect when T.D.’s claims accrued in

2005. See In re Estate of Kiser, 72 P.3d 425, 430 (Colo. App.

2003)(noting that the statute in effect at the time the claim accrues

generally governs the claim, unless the General Assembly clearly

intends otherwise).

2. “[M]entally [I]ncompetent”

a. Law

¶ 21 A person is “mentally incompetent” if she is “insane,”

“mentally ill,” “gravely disabled,” or if she is a “person with a

7
developmental disability.” § 27-10.5-135(1), C.R.S. 2005. (A

similar provision is now codified at section 25.5-10-237(1), C.R.S.

2016. See Ch. 323, sec. 1, § 25.5-10-237(1), 2013 Colo. Sess. Laws

1780.) T.D. does not contend that she was insane, so we will only

address the other definitions of the term “mentally incompetent.”

 A person is “mentally ill” if she has a “substantial

disorder of the cognitive, volitional, or emotional

processes that grossly impairs judgment or capacity to

recognize reality or to control behavior[.]” § 27-10-102(7),

C.R.S. 2005. (A similar provision is now codified at

section 27-65-102(14), C.R.S. 2016. See Ch. 298, sec. 2,

§ 27-10-107(8.5), 2006 Colo. Sess. Laws 1373-74

(removing “mentally ill person” from the statute and

adding “person with a mental illness”); see also Ch. 188,

sec. 2, § 27-65-102(14), 2010 Colo. Sess. Laws 678

(relocating the definition for “person with a mental

illness”).)

 A person is “gravely disabled” if, because of mental

illness, she (1) is “in danger of serious physical harm”

based on her “inability or failure to provide [for herself]

8
the essential human needs of food, clothing, shelter, and

medical care”; or (2) lacks judgment in managing her

resources and social relations “to the extent that [her]

health or safety is significantly endangered,” and that she

“lacks the capacity to understand that this is so.”

§ 27-10-102(5)(a), C.R.S. 2005. (A similar provision is

now codified at section 27-65-102(9)(a), C.R.S. 2016. See

Ch. 188, sec. 2, § 27-65-102(9)(a), 2010 Colo. Sess. Laws

677.)

 A “developmental disability” denotes a disability,

manifested by the time the person is twenty-two years

old, that is attributable to mental retardation “or related

conditions” like “cerebral palsy, epilepsy, autism, or other

neurological conditions,” if the condition results in a

similar impairment “to that of a person with mental

retardation.” § 27-10.5-102(11)(a), C.R.S. 2013;

§ 25.5-10-202(26)(a), C.R.S. 2016. And to be a “person

with a developmental disability,” the person must be

designated as such by a “community-centered board.”

9
§ 27-10.5-102(11)(b), C.R.S. 2013; § 25.5-10-202(26)(b),

C.R.S. 2016.

b. Application

¶ 22 T.D. asserts that the following facts in the record raised a

triable issue of fact that she was mentally incompetent:

 She became dependent on drugs and alcohol in high

school and remained dependent until 2012. She “lost

jobs due to [her] addiction.”

 She has “serious mental disabilities” and “PTSD [post-

traumatic stress disorder] and other psychological

disorders, eating disorders, self-mutilation, depression,

substance abuse, and a cycle of abusive relationships.”

 She “gave [her] son up to the guardianship of [her]

mother and [defendant] because of [her] addiction.”

 Her ability to care for herself has been “disrupted,” as

well as her learning, concentration, thought, work, and

her ability to perform “other important daily tasks.”

 She “attempted suicide and was committed.”

 Her “psychological issues remain . . . a difficult hurdle.”

10
¶ 23 While the trial court could consider some of these facts, it

could not consider others because they appeared in unsworn

reports, orders, or letters. See McDaniels v. Laub, 186 P.3d 86, 87

(Colo. App. 2008)(“Unsworn expert witness reports are not

admissible to support or oppose a motion for summary judgment.”);

see also Cody Park Prop. Owners’ Ass’n, Inc. v. Harder, 251 P.3d 1,

4 (Colo. App. 2009)(same). For example, we found some of the facts

upon which T.D. relies on appeal in an unsworn report from a

licensed clinical psychologist, some in an unsworn “Mental Residual

Functional Capacity Statement,” some in a report from a doctor

who worked at the Denver Health Medical Center, and some

references to medical reports, without any indication that they

appeared in sworn documents, in an order from a federal

administrative law judge who adjudicated T.D.’s Social Security

disability claim in 2014. (And, as we discuss in more detail below,

the focus of the administrative law judge’s order was on a period

beginning in late December 2012. The order’s descriptions of

diagnoses therefore have little factual connection to the period

between 2005 and 2011 when the statute of limitations was

running.)

11
¶ 24 The only sworn document in the record to which T.D. refers is

her own affidavit. In it, she stated that the sexual abuse that

defendant allegedly inflicted on her caused her “to be dependent on

drugs and alcohol” and caused “a number of serious mental

disabilities.” She alleged that the disabilities “remain a difficult

hurdle [in her] day to day life to this day” and that she has not

“overcome” them. She added that her addictions and her “severe

mental disabilities” “prevented [her] from comprehending what

[defendant] had done to [her], the full extent of the ways he had

injured [her], the severity of such injuries, and the likely expected

duration of such injuries.” And, her addiction and her “severe

mental disabilities” “prevented [her] from psychologically and

emotionally acknowledging the harm resulting from the abuse [she

had] sustained.”

¶ 25 Beginning with “mentally ill,” none of the facts set out above

that we can consider — meaning the facts that appear in T.D.’s

affidavit and not the facts that appear in the unsworn documents —

suggest that T.D. suffered from a substantial disorder of her

cognitive, volitional, or emotional processes that grossly impaired

her judgment or her capacity to recognize reality or control her

12
behavior. See § 27-10-102(7), C.R.S. 2005 (defining “mentally ill”).

The record does not explain whether any of the factors in T.D.’s

affidavit rose to the level of a substantial disorder, or how such a

disorder grossly impaired her judgment, or grossly impaired her

capacity to recognize reality, or grossly impaired her capacity to

control her behavior. So the record did not raise a disputed fact

that she was mentally ill.

¶ 26 Her suicide attempt could raise an issue of fact that she was

in danger of serious harm, one of the definitions of “gravely

disabled.” See § 27-10-102(5)(a), C.R.S. 2005. But this attempt

occurred in 2012, after the six-year statute of limitations would

have already run. See § 13-80-103.7(1), C.R.S. 2016.

¶ 27 The record does not otherwise suggest that T.D. was in danger

of serious harm when the statute of limitations was running. And,

although she alleged that her ability to care for herself was

“disrupted,” she did not allege how long the disruption lasted, and

she did not assert that she was unable to provide essential human

needs for herself. See § 27-10-102(5)(a), C.R.S. 2005. So the

record did not contain a dispute about whether she was gravely

disabled.

13
¶ 28 The record does not contain any evidence that T.D. suffered

from a developmental disability, as defined in section

27-10.5-102(11)(a), C.R.S. 2013, and section 25.5-10-202(26)(a),

C.R.S. 2016. There is no indication that she suffered from mental

retardation or any of the listed “related conditions.” And there is no

suggestion that a “community-centered board” ever designated her

as suffering from any of those conditions. § 27-10.5-102(11)(b),

C.R.S. 2013; § 25.5-10-202(26)(b), C.R.S. 2016.

¶ 29 T.D. points out that the Social Security Administration

adjudicated her “disabled” beginning on December 18, 2012, which

could suggest she was a “person under disability.” See

§ 27-10.5-102(11)(b), C.R.S. 2013; § 25.5-10-202(26)(b), C.R.S.

2016. But, for three reasons, we conclude that this adjudication

does not bear the weight that T.D. puts on it.

¶ 30 First, recall that T.D.’s claim accrued in August 2005. So,

even if T.D. had been disabled in December 2012, the statute of

limitations would still bar her claim because the six-year period ran

out in 2011.

¶ 31 Second, there is little in the adjudication that pertains to

T.D.’s medical status before 2012. True enough, the adjudication

14
stated that T.D.’s medical records showed that she had

“longstanding symptoms consistent with [post-traumatic stress

disorder] relating to childhood sexual abuse.” But T.D. had only

“alleg[ed] disability since December 18, 2012.” Consistent with this

allegation, the adjudication stated that “the available medical

record” “reflect[ed] treatment for an increase in mental symptoms”

“beginning in December 2012.”

¶ 32 Third, the Social Security definitions of “disabled” are different

from the definitions that we deal with in this case, which we find in

section 27-10.5-102(11)(a) and (b), C.R.S. 2013, and section

25.5-10-202(26)(a) and (b), C.R.S. 2016. See 42 U.S.C. § 416(i)(1)

(2012)(explaining that “disability” under the Social Security statutes

means an inability to engage in any substantial gainful activity

because of physical or mental impairment or blindness); 42 U.S.C.

§ 423(d)(1) (2012)(same). For one example, a person could be

“disabled” under the Social Security statutes without having a

disability with an impairment similar “to that of a person with

mental retardation.” § 27-10.5-102(11)(a), C.R.S. 2013;

25.5-10-202(26)(a), C.R.S. 2016.

15
¶ 33 Given all this, we conclude that the record did not contain any

disputed facts about whether T.D. was mentally incompetent under

section 13-80-103.7(3.5)(a), C.R.S. 2016, at any point during the six

years during which the statute of limitations ran.

3. “[U]nder [O]ther [L]egal [D]isability”

a. Law

¶ 34 Section 13-80-103.7(3.5)(a) does not define “under other legal

disability.” Colorado cases have not defined this phrase in any

statutory context. See Broyles v. Fort Lyon Canal Co., 695 P.2d

1136, 1143 n.7 (Colo. 1985)(“It is not clear exactly what is

encompassed within the term ‘other legal disability.’”). So

determining whether the record contained any disputed facts on

whether T.D. was “under other legal disability” requires us to

construe the statute.

¶ 35 A court’s task when construing statutes is to “give effect to the

intent of the General Assembly.” Grant v. People, 48 P.3d 543, 546

(Colo. 2002)(citation omitted). The first stop on this path is to

examine the plain language of the statute. See id. “Because we do

not presume that the legislature used language idly, ‘we give effect

16
to every word and render none superfluous.’” People v. Iversen,

2013 COA 40, ¶ 21 (citations omitted).

¶ 36 When a statute does not define a phrase, but the words at

issue are commonly used, “we may refer to dictionary definitions in

determining the plain and ordinary meaning of the word[s].”

Friends of the Black Forest Pres. Plan, Inc. v. Bd. of Cty. Comm’rs,

2016 COA 54, ¶ 47 n.7 (citation omitted). Because words often

have several meanings or nuanced meanings, “the precise meaning

actually intended by an undefined term often must be determined

by reference to other considerations, like the context in which it is

used.” People v. Opana, 2017 CO 56, ¶ 12.

¶ 37 “Where the language is clear, it is not necessary to resort to

other tools of statutory construction.” Goodman v. Heritage

Builders, Inc., 2017 CO 13, ¶ 7.

¶ 38 We interpret statutes de novo. Iversen, ¶ 21.

b. Application

¶ 39 One legal dictionary has defined “legal disability” this way:

Incapacity to contract; infancy; unsoundness
of mind. . . . Any condition which renders a
person unable to act for himself or bind
himself so that the law will not regard his acts
as void or voidable.

17
A disability which may relate to the power to
contract or to bring suits, and which may arise
out of want of sufficient understanding, as
idiocy, lunacy, or want of freedom of will, as in
the case of married women and persons under
duress; or out of the policy of the law, as
alienage when the alien is the enemy,
outlawry, attainder, praemunire, and the
like. . . .

Ballentine’s Legal Dictionary 718-19 (3d ed. 1969). (We turned to

Ballentine’s Legal Dictionary because Black’s Law Dictionary does

not define the term.)

¶ 40 Given that “legal disability” has several plain meanings, then,

our next duty is to determine which plain meaning applies here. To

accomplish this task, we “reference . . . other considerations, like

the context in which [legal disability] is used.” Opana, ¶ 12.

¶ 41 The context of “legal disability” within section

13-80-103.7(3.5)(a) suggests that the phrase does not mean

“infancy” or “unsoundness of mind.” See Ballentine’s Legal

Dictionary at 718. Section 13-80-103.7(3.5)(a) explains that a

person is under a disability if she is “a minor,” “a person who has

been declared mentally incompetent,” a “person under other legal

disability,” or a person in a “special relationship” with the

perpetrator who is “psychologically or emotionally unable to

18
acknowledge the assault or offense and the resulting harm.”

§ 13-80-103.7(3.5)(a).

¶ 42 So defining “legal disability” as either “infancy” or

“unsoundness of mind” would mean that “legal disability” would

overlap with two other statutory components: that a plaintiff is a

“minor” and that a plaintiff is “mentally incompetent.” We cannot

construe the statute this way because we must avoid interpreting

statutes in a manner that renders parts of them superfluous. Ryan

Ranch Cmty. Ass’n, Inc. v. Kelley, 2016 CO 65, ¶ 43.

¶ 43 The context of the statute does not suggest that “legal

disability” means an “[i]ncapacity to contract” or “[a] disability

which may relate to the power to contract.” Ballentine’s Legal

Dictionary at 718-19. The purpose of section 13-80-103.7(3.5)(a) is

to set out reasons to toll a statute of limitations, and a barrier to

forming contracts does not, on its own, hinder someone from filing

a timely lawsuit. Cf. Broyles, 695 P.2d at 1143 n.7; see also City &

Cty. of Denver Sch. Dist. No. 1 v. Denver Classroom Teachers Ass’n,

2017 CO 30, ¶ 12 (noting that we should avoid constructions that

lead to illogical or absurd results).

19
¶ 44 But one of the dictionary definitions of “legal disability”

comports with the context of section 13-80-103.7(3.5)(a): “A

disability which may relate to the power . . . to bring suits . . . out of

policy of the law.” Ballentine’s Legal Dictionary at 719 (noting that

“alienage when the alien is an enemy” or “outlawry” are examples of

such a disability). “The disability is something pertaining to the

person of the party — a personal incapacity — and not to the cause

of action or his relation to it.” Terre Haute, I. & E. Traction Co. v.

Reeves, 108 N.E. 275, 277 (Ind. Ct. App. 1915)(quoting Meeks v.

Bassault, 16 F. Cas. 1314, 1317 (D.C. Cal. 1874)). Although the

person has a “present right of action,” there is also a “want of

capacity to sue.” Id. (quoting Meeks, 16 F. Cas. at 1317).

¶ 45 (Examples of legal disability could arise out of public policy.

Courts in other states have defined the phrase “policy of the law” to

be synonymous with “public policy.” See Fuller v. TLC Prop. Mgmt.,

LLC, 402 S.W.3d 101, 110 n.2 (Mo. Ct. App. 2013)(Rahmeyer, J.,

concurring); Siloam Springs Hotel, LLC v. Century Sur. Co., 392 P.3d

262, 267 (Okla. 2017). “Policy of the law,” as synonymous with

“public policy,” is “expressed by the manifest will of the state which

may be found in the Constitution, statutory provisions, and judicial

20
records.” Oliver v. Omnicare, Inc., 103 P.3d 626, 628 (Okla. Civ.

App. 2004). To be sure, changes in public policy have also

eliminated certain disabilities, such as the now-discredited

disability imposed on married women because the law presumed

them to lack “freedom of will.” See Meeks, 16 F. Cas. at 1317, aff’d

sub nom. Meeks v. Olpherts, 100 U.S. 564 (1880).)

¶ 46 A person who lacks the power to bring a lawsuit based on a

“policy of the law” would be hindered from filing a timely lawsuit.

So this plain language definition gives “sensible effect” to the tolling

statute’s parts. People v. Henley, 2017 COA 76, ¶ 19 (citation

omitted); see Assoc. Gov’ts of Nw. Colo. v. Colo. Pub. Utils. Comm’n,

2012 CO 28, ¶ 35 (noting that, when construing statutes, the court

should give effect to each word).

¶ 47 For these reasons, we conclude that “legal disability” under

section 13-80-103.7(3.5)(a) denotes an inability to bring a lawsuit,

based on some recognized policy of the law.

¶ 48 No facts in the record indicate that T.D. lacked the power to

timely bring her suit based on some legal rule or policy. We

therefore conclude that the record lacked any factual dispute that

T.D. had a “legal disability” under section 13-80-103.7(3.5)(a). See,

21
e.g., Broyles, 695 P.2d at 1143 n.7 (“It is certain . . . that the record

discloses no legal disability that prevented Broyles from filing a

timely application for diligence findings.”).

4. “[I]n a [S]pecial [R]elationship with the [P]erpetrator of the
[A]ssault” and “[P]sychologically or [E]motionally [U]nable to
[A]cknowledge the [A]ssault or [O]ffense and the [R]esulting [H]arm”

¶ 49 Finally, we assess whether the record raised a genuine issue of

fact about whether T.D. (1) had a special relationship with

defendant; and was therefore (2) unable, because of psychological

or emotional reasons, to acknowledge the assaults or offenses and

the resulting harm. See § 13-80-103.7(3.5)(a); see also Sandoval v.

Archdiocese of Denver, 8 P.3d 598, 600 (Colo. App. 2000)(explaining

that a victim can be disabled based on “a suppressed memory

caused by the psychological and emotional trauma of a sexual

assault by someone with whom the victim had a special

relationship,” so the statute allows victims to bring lawsuits within

six years of when “their memory surfaced”).

¶ 50 A familial relationship can constitute a “special relationship.”

See § 13-80-103.7(3.5)(a). Accordingly, we agree with T.D. that the

record raised the inference that she and defendant had a “special

relationship” until 2015, when her mother and defendant divorced.

22
¶ 51 But the analytical problem with T.D.’s contention lies in the

second prong of the definition for “person under disability”: that

T.D. was “psychologically or emotionally unable to acknowledge the

assault or offense and the resulting harm.” Id. The record

indicates that she had disclosed the abuse several times.

¶ 52 In her response to defendant’s summary judgment motion, she

stated that she had “reported the sexual abuse to her school” when

she was thirteen years old. Her mother was aware of her report

because her mother “instructed her to change her testimony.”

¶ 53 She also disclosed the abuse to doctors in 2005, and she

agreed in her deposition that she had “acknowledged” the abuse at

that time. Although she said that she had not “come to terms with

everything . . . because [she] was a drug addict,” she told doctors

about the harm that the abuse had caused.

Q. And you reported to the doctors in these
reports, which were in August of ’05, that you
had been sexually assaulted by your
stepfather, correct? You told them that?

A. Yes, sir.

Q. And you described the harm and what
the side effects from that was, correct?

A. Yes. Yes, sir.

23
(The deposition itself is not included in the record, but defendant

included this excerpt in his motion for summary judgment. T.D.

does not dispute its accuracy.)

¶ 54 Notwithstanding this disclosure in 2005, T.D.’s affidavit

alleged that her “dependence to drugs and alcohol coupled with

[her] severe mental disabilities prevented [her] from psychologically

and emotionally acknowledging the harm resulting from the abuse

[she] sustained.” But she did not provide any details or support for

this assertion, and a “conclusory statement made without

supporting documentation or testimony is insufficient to create an

issue of material fact.” Suncor Energy (USA), Inc. v. Aspen Petroleum

Prods., Inc., 178 P.3d 1263, 1269 (Colo. App. 2007). Accordingly,

we conclude that the record did not establish that that there was a

triable issue of fact that, after her 2005 disclosure to her doctors,

T.D. was unable to acknowledge, due to psychological or emotional

reasons, defendant’s abuse or the harm that it had caused her.

¶ 55 Because the record did not raise disputed facts as to any of

the definitions of “person under disability,” the statute of limitations

was not tolled. We conclude that T.D.’s claims were barred when

the statute finished running in 2011. Defendant was therefore

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entitled to judgment as a matter of law, and the record supports the

trial court’s decision to grant defendant’s summary judgment

motion. Cf. Sopris Lodging, LLC v. Schofield Excavation, Inc., 2016

COA 158, ¶¶ 18-20 (affirming summary judgment because claims

were time barred).

¶ 56 The judgment is affirmed.

JUDGE DAILEY and JUDGE FOX concur.

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