John Doe v. Catholic Society of Religious and Literary Education and Jesuit Collage Preparatory School of Dallas Inc. ( 2022 )

Affirm and Opinion Filed June 30, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00616-CV
JOHN DOE, Appellant
V.
CATHOLIC SOCIETY OF RELIGIOUS AND LITERARY EDUCATION
AND JESUIT COLLEGE PREPARATORY SCHOOL OF DALLAS, INC.,
Appellees
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-03706
MEMORANDUM OPINION
Before Justices Myers, Carlyle, and Goldstein
Opinion by Justice Myers
This case concerns whether the discovery rule or other doctrine deferred for
over thirty years the accrual of John Doe’s causes of action based on the sexual abuse
he suffered in 1978 when he was sixteen years old. Doe appeals the summary
judgment in favor of the Catholic Society of Religious and Literary Education (the
Society) and Jesuit College Preparatory School of Dallas, Inc. (the School). Doe
brings one issue contending the trial court erred by granting appellees’ motions for
summary judgment on the statute of limitations because the discovery rule, the
doctrine of fraudulent concealment, and equitable estoppel deferred the accrual of
Doe’s causes of action until within two years of the date he filed suit or barred the
application of the statute of limitations. We affirm the trial court’s judgment.
BACKGROUND
Doe testified that in 1978, he was sixteen years old and was attending the
School. The School’s president and its principal, who were both Jesuit priests,
invited Doe and Doe’s friend and fellow student, G.L., to attend a religious ceremony
in Mobile, Alabama, involving another Jesuit who was not yet a priest, Donald
Dickerson.1 Doe and G.L. stayed at the home of Dickerson’s parents where
Dickerson also lived. G.L. was tired and went to bed early, but Doe stayed up and
talked to Dickerson about the priesthood. Dickerson served Doe alcohol despite the
fact he was a minor and had no prior experience with alcohol. When Doe was
intoxicated, Dickerson led him to a bedroom, performed oral sex on him, and
sodomized him. Doe went to the bathroom, and there was blood and semen coming
from his anus. Doe also felt pain. Doe had no prior sexual experience and did not
realize what had happened to him. Doe woke up G.L. and told him what happened.
Doe testified that immediately after the assault, “I was so scared and then I went to
go wake up [G.L.] to tell him what had happened and—and when I told him what
happened and he didn’t believe me and I didn’t know what to think. I was scared. I
1
The nature of the ceremony is not clear. Doe testified he thought the ceremony was the ordination of
Dickerson. Appellees presented evidence that Dickerson was not ordained until 1980, two years after Doe’s
trip to Mobile. Whether the ceremony was the ordination of Dickerson or some other ceremony does not
affect the outcome of the case.
–2–
was hurting, and I just wanted to go home.” The next day, during the ceremony,
Doe was still in pain, and he remembered that Dickerson had assaulted him the night
before. Doe and G.L. left Mobile “within a day or so” of Doe’s encounter with
Dickerson. Shortly after returning to Dallas from Mobile, Doe’s family moved to
Harlingen, and Doe had no further contact with the School and no contact with G.L.
until 2018. Doe testified he “had absolutely no memory of what Dickerson had done
to me from the time we left Mobile” until he was discussing the trip with G.L. forty
years later in 2018.
The Society assigned Dickerson to work at the School in 1980, after Doe had
left the School, where Doe alleges Dickerson “sexually assaulted several students.”
Doe alleged the Society transferred Dickerson to an assistant pastor position in
Shreveport, Louisiana, where he sexually assaulted more children. The Society
removed Dickerson from the ministry in 1986. Dickerson died in 2016. The priests
from the School who took Doe and G.L. to Mobile also died before Doe filed suit.
In 2018, Doe was living in Corpus Christi. G.L. visited Corpus Christi, and
he contacted Doe. They met for dinner, and they discussed their time at the School
and the trip to Mobile. During that conversation, Doe remembered Dickerson’s
sexual assault on him for the first time since he left Mobile forty years earlier.
G.L. stated in his affidavit that when he was in Mobile in 1978, Doe told G.L.
“he was uncomfortable with something that Dickerson had done to him.” G.L.
continued, “At the time, I didn’t think much of what he told me and I didn’t ask him
–3–
any questions. Instead, I responded to [Doe] saying something along the lines that—
‘these Jesuits are pretty demonstrative with their affection, don’t take it too
seriously.’” During their meeting in 2018, Doe told G.L., “I tried to tell you about
what Dickerson did to me when we were in Mobile. . . . Dickerson gave me beer
until I was intoxicated and then sodomized me.” A few months later, G.L. saw
Dickerson’s name on the Society’s list of credibly accused clergy. G.L. reported
Dickerson’s sexual assault of Doe to the School’s president. G.L. provided the
names of some lawyers to Doe “in the hope of his getting him some legal help and
possibly justice for his injuries caused by the Jesuits.”
Summary judgment evidence shows the Society was aware as early as January
1975 of Dickerson’s pederasty, intervened to stop an investigation of Dickerson, and
acted to keep the information from becoming public. Letters between members of
the Society in its New Orleans province with members in Massachusetts and Italy
discussed Dickerson’s problems. The January 1975 letter discussed the fact that
Dickerson “had a very serious lapse during the first week of December. The lapse
was mutual masturbation with a student.” The letter states, “The knowledge of this
incident is very limited in scope at this present time. I don’t think any public action
is warranted at this time.” The letter also states that the source of the information
“is quite disturbed that dramatic actions are not manifest” in light of the concerns of
superiors in the Society “for such things.” The letter writer states he had to have a
–4–
superior explicitly tell the source not to investigate the matter further and that the
source “is not too pleased with that directive.”
In letters amongst members of the Society in December 1977, there is
discussion that Dickerson had a history “of overt homosexual encounters with two
high school boys whom he masturbated.” After those incidents, Dickerson consulted
a psychiatrist. Dickerson was then approved for ordination “on the supposition that
condition had been brought under control.” However, the weekend before the letter,
“during retreat situation, Dickerson kissed and made sexual advances on [a] 14-year-
old boy.” In light of this conduct, the letter writer concluded Dickerson would not
be ordained because “the supposition under which he was approved for ordination,
that the psychosexual problem was under sufficient control, evidently does not
hold.” The letters stated that one leading member of the Society wanted Dickerson’s
ordination to go forward despite Dickerson’s sexual abuse of minors. The Society
postponed Dickerson’s ordination in 1977, and he was not ordained until 1980.
Doe filed suit against appellees on March 14, 2019, almost forty-one years
after the incident. Doe alleged appellees were vicariously liable for Dickerson’s
actions under the doctrines of respondeat superior and different types of agency.
Doe also alleged the Society was negligent by failing to report to the police and other
authorities Dickerson’s known sexual assaults of children, by assigning Dickerson
to locations where children were located knowing he had sexually assaulted children,
by failing to investigate Dickerson’s known sexual assaults of children, and by
–5–
failing to have written policies in place regarding sexual assaults. Doe alleged
appellees were negligent and acted with malice by retaining Dickerson or failing to
properly supervise him when they knew or should have known Dickerson had
abused children.
Doe also alleged appellees were in a special fiduciary relationship with Doe
“which [they] breached by subjecting [Doe] to Dickerson, a known pedophile and
[are] therefore liable for the wrongful conduct of Dickerson.” He also alleged
appellees violated their fiduciary duties by failing to disclose the extent of the
problem of sexual abuse of children by the Roman Catholic clergy in general, by
Jesuits within the New Orleans province, and by Dickerson in particular, and by
failing to disclose the psychological problems resulting from untreated sexual abuse.
Doe alleged appellees committed fraud by representing Dickerson to be celibate,
safe, and not a danger to children and by failing to disclose that Dickerson had
sexually assaulted at least three minors before Doe traveled to Mobile. Doe also
alleged appellees were grossly negligent, committed negligent misrepresentation
and intentional infliction of emotional distress, and engaged in a conspiracy to
conceal Dickerson’s abuse of children. Doe also alleged appellees were liable under
section 323 of the Restatement (Second) of Torts2 because they operated the School
2
Section 323 of the Restatement (Second) of Torts provides:
One who undertakes, gratuitously or for consideration, to render services to another which
he should recognize as necessary for the protection of the other's person or things, is subject
–6–
for pecuniary benefit, invited students including Doe to attend, and undertook a duty
to properly supervise and protect the students while they were in their care.
Appellees answered, alleging, among other defenses, the affirmative defense
that Doe’s claims were barred by the two-year statute of limitations. The Society
filed a motion for summary judgment on the ground that Doe’s suit was barred by
limitations, and the School filed a motion for summary judgment that adopted and
joined the Society’s motion while providing some independent argument. Doe filed
a response to the motions. The trial court granted appellees’ motions for summary
judgment and dismissed Doe’s claims.
SUMMARY JUDGMENT
In his issue on appeal, Doe contends the trial court erred by granting appellees’
motions for summary judgment on the ground of the statute of limitations.
Appellees’ motions asserted they conclusively proved they were entitled to judgment
as a matter of law on limitations including that the discovery rule did not defer
accrual of Doe’s causes of action or toll limitations until two years before Doe filed
suit. Appellees also asserted Doe had no evidence to support one of more of the
to liability to the other for physical harm resulting from his failure to exercise reasonable
care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
RESTATEMENT (SECOND) OF TORTS § 323 (1965).
–7–
elements of his defenses to the statute of limitations, fraudulent concealment and
equitable estoppel.
In a traditional summary judgment, the movant has the burden of showing that
no genuine issue of material fact exists and that it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue
exists precluding summary judgment, evidence favorable to the nonmovant will be
taken as true. In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009,
no pet.). Every reasonable inference must be indulged in favor of the nonmovant
and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824
(Tex. 2005). We review a summary judgment de novo to determine whether a
party’s right to prevail is established as a matter of law. Dickey v. Club Corp., 12
S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).
We review a no-evidence summary judgment under the same legal sufficiency
standard used to review a directed verdict. See TEX. R. CIV. P. 166a(i); Flood v.
Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). We must
determine whether the nonmovant produced more than a scintilla of probative
evidence to raise a fact issue on the material questions presented. See id. When
analyzing a no-evidence summary judgment, we consider all the evidence in the light
most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the movant. Sudan v. Sudan, 199 S.W.3d 291, 292
(Tex. 2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). A
–8–
no-evidence summary judgment is improperly granted if the respondent brings forth
more than a scintilla of probative evidence to raise a genuine issue of material fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a
scintilla of evidence exists when the evidence rises to a level that would enable
reasonable, fair-minded persons to differ in their conclusions.” Id. (quoting Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Less than a
scintilla of evidence exists when the evidence is ‘so weak as to do no more than
create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
STATUTE OF LIMITATIONS
The supreme court has set forth the purpose of statutes of limitations:
Limitations statutes afford plaintiffs what the legislature deems a
reasonable time to present their claims and protect defendants and the
courts from having to deal with cases in which the search for truth may
be seriously impaired by the loss of evidence, whether by death or
disappearance of witnesses, fading memories, disappearance of
documents or otherwise. The purpose of a statute of limitations is to
establish a point of repose and to terminate stale claims.
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). A person
must bring suit for personal injury not later than two years after the cause of action
accrues. See TEX. REV. CIV. STAT. ANN. art. 5526 (repealed by Act of May 17, 1985,
–9–
69th Leg., R.S., ch. 959, § 1, sec. 16.003, § 9(1), 1985 Tex. Gen. Laws 3242, 3252,
3322) (now codified at TEX. CIV. PRAC. & REM. CODE ANN. § 16.003).3
Limitations begins to run when a cause of action accrues. Barker v. Eckman,
213 S.W.3d 306, 311 (Tex. 2006). A cause of action generally accrues when a party
has been injured by another’s acts or omissions. Id.; see also Exxon Corp. v.
Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 202 (Tex. 2011) (“Causes of action
accrue and statutes of limitations begin to run when facts come into existence that
authorize a claimant to seek a judicial remedy.”). Under the legal injury rule, a cause
of action accrues when a wrongful act causes some legal injury, even if the fact of
injury is not discovered until later and even if all resulting damages have not yet
occurred. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997).
In this case, Dickerson’s assault on Doe occurred in August 1978. Doe was
sixteen at the time, so the limitations period did not begin to run until Doe turned
3
Since 1995, the legislature has increased the limitations period for injuries arising from sexual
offenses against children, first extending the period to five years, then fifteen years, and most recently, to
thirty years. See Act of May 27, 1995, 74th Leg., R.S., ch. 739, § 1, 1995 Tex. Gen. Laws 3850, 3850 (five
years); Act of May 30, 2015, 84th Leg., R.S., ch. 918, § 1, 2015 Tex. Gen. Laws 3182, 3182 (fifteen years);
Act of May 24, 2019, 86th Leg., R.S., ch. 1306, § 1, 2019 Tex. Gen. Laws 3851, 3851 (thirty years). Except
for the 1995 act extending limitations to five years, the statutes provide they do not apply to causes of action
accruing before their effective date. However, even if the current statutes concerning limitations did apply,
they would not affect this case because, if Doe’s causes of action accrued at the time of the injury in 1978
when he was sixteen and the limitations period did not begin to run until he turned eighteen in 1980, then
limitations expired thirty years later in 2010, eight to nine years before he filed suit in 2019. The issues
would remain the same: whether the discovery rule deferred accrual of the causes of action until 2018 and
whether appellees should be barred from asserting limitations under the doctrines of fraudulent concealment
and equitable estoppel.
Doe states that in the 2021 legislative session, a bill was introduced that would have eliminated
limitations for suits for personal injury arising from sexual abuse of a child. See Tex. H.B. 2071, § 3, 87th
Leg., R.S. (2021). The bill never reached the House floor for a vote, and it did not become law.
–10–
eighteen in 1980. See CIV. PRAC. § 16.001(a)(1) (disability due to minority status
ends at age eighteen). The limitations period was two years. CIV. STAT. art. 5526.
Thus, limitations expired in 1982, two years after Doe turned eighteen, unless
accrual of Doe’s causes of action was deferred or the running of the limitations
period was tolled.4
Discovery Rule
The discovery rule is a limited exception to the general rule that a cause of
action accrues at the time of the injury, deferring the accrual of a cause of action
until the plaintiff knew or, exercising reasonable diligence, should have known of
the facts giving rise to the cause of action. See Computer Assocs. Int'l, Inc. v. Altai,
Inc., 918 S.W.2d 453, 455 (Tex. 1996). We apply the discovery rule only when the
nature of plaintiff’s injury is inherently undiscoverable and the evidence of injury is
objectively verifiable. See id. at 456. “These two elements of inherent
undiscoverability and objective verifiability balance the conflicting policies in
statutes of limitations: the benefits of precluding stale or spurious claims versus the
risks of precluding meritorious claims that happen to fall outside an arbitrarily set
period.” S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996).
An injury is inherently undiscoverable if it is, by its nature, unlikely to be
discovered within the prescribed limitations period despite due diligence. Wagner
4
If the age of majority for limitations purposes in 1978 was twenty-one and not eighteen, then Doe’s
causes of action accrued in 1985 unless accrual was deferred. This difference of three years does not affect
the outcome of the case.
–11–
& Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734–35 (Tex. 2001). Whether an injury
is inherently undiscoverable is a legal question “decided on a categorical rather than
case-specific basis; the focus is on whether a type of injury rather than a particular
injury was discoverable.” Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006)
(per curiam). When the discovery rule applies, limitations begins to run when a
party has actual knowledge of a wrongful injury, even when he does not yet know
the specific cause of, the party responsible for, or the full extent of, the injury. Exxon
Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011).
If a summary judgment motion is based on limitations, the defendant must
conclusively establish every element of that defense, including when the claim
accrued. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833–34 (Tex. 2018)
(per curiam). The defendant must also conclusively negate application of the
discovery rule and any pleaded tolling doctrines. Erikson v. Renda, 590 S.W.3d 557,
563 (Tex. 2019).
The discovery rule does not generally apply to claims from a violent assault
because the plaintiff is usually aware of the assault. See Estate of Tobolowsky, No.
05-19-00073-CV, 2020 WL 6143676, at *4 (Tex. App.—Dallas Oct. 20, 2020, no
pet.) (mem. op.); see also Brothers v. Gilbert, 950 S.W.2d 213, 216 (Tex. App.—
Eastland 1997, pet. denied) (“The ‘discovery rule’ is not applicable to claims of
common-law assault.”).
–12–
In this case, Doe’s causes of action accrued when a wrongful act caused him
some legal injury. Murphy, 964 S.W.2d at 270; see also Moreno v. Sterling Drug,
Inc., 787 S.W.2d 348, 351 (Tex. 1990) (“For purposes of the application of limitation
statutes, a cause of action can generally be said to accrue when the wrongful act
effects an injury, regardless of when the plaintiff learned of such injury.”).
Dickerson’s sexual assault on Doe was clearly a wrongful act, and Doe suffered a
legal injury at that time. Doe described in his affidavit the physical injuries he
suffered from the assault, including the pain and bleeding. However, Doe pleaded
that the discovery rule applied and deferred the accrual of his claims until he
remembered the assault in 2018. Appellees had the burden at the summary judgment
stage to conclusively disprove the applicability of the discovery rule.5 Erikson¸ 590
S.W.3d at 563.
Doe presented some evidence that the assault was inherently undiscoverable
through the affidavit of a psychologist, Dr. Alexandria Doyle. Dr. Doyle testified
she interviewed Doe and his mother. She reviewed Doe and G.L.’s depositions and
affidavits, the live petition, and Doe’s medical and school records. She also
administered clinical tests to Doe. She recounted the facts based on her interview
with Doe and as presented in Doe’s affidavit and petition. She stated,
5
Appellees argued the discovery rule does not apply because Doe was aware of the injuries for at least
a day or two after the assault. Because we conclude Doe’s injuries were not objectively verifiable, we need
not address this argument.
–13–
In my opinion, based upon reasonable psychological certainty, the
Jesuit Donald Dickerson’s abuse of [Doe] resulted in severe
psychological issues that prevented him from coming forward any
sooner than he did in prosecuting his lawsuit. The effects of the PTSD
that [Doe] suffered as a result of the sexual abuse by the Jesuit
Dickerson caused [Doe’s] memories of the abuse to cease. . . . The
underlying effect of the abuse still impacted his psychological, social,
emotional and religious functioning even though [Doe] was not
consciously aware of the acts of abuse.
She also stated that Doe had “many symptoms over his lifetime that are attributable
to sexual abuse survivors.” She concluded by stating that, in her opinion, “the sexual
abuse by the Jesuit Dickerson that [Doe] suffered was ‘inherently undiscoverable’
by [Doe] from 1978 until his memory was triggered by the conversation with his
friend [G.L.] in the Summer of 2018.” For purposes of this opinion, we assume that
appellees did not conclusively disprove that the sexual assault was inherently
undiscoverable and that Doyle’s testimony provided some evidence that Doe’s
injuries were inherently undiscoverable. Cf. S.V., 933 S.W.2d at 8 (“Nevertheless,
given the special relationship between parent and child, and the evidence reviewed
in detail below that some traumas are by nature impossible to recall for a time, we
assume without deciding that plaintiff can satisfy the inherent undiscoverability
element for application of the discovery rule.”).
We next consider whether appellees conclusively proved the assault was not
objectively verifiable. “An injury is ‘objectively verifiable’ if the presence of injury
and the producing wrongful act cannot be disputed, and the facts upon which liability
is asserted are demonstrated by direct, physical evidence.” Bertrand v. Bertrand,
–14–
449 S.W.3d 856, 866 (Tex. App.—Dallas 2014, no pet.). In S.V., the supreme court
listed the types of evidence providing objective verification of sexual assault as
including “a confession by the abuser; a criminal conviction; contemporaneous
records or written statements of the abuser such as diaries or letters; medical records
of the person abused showing contemporaneous physical injury resulting from the
abuse; photographs or recordings of the abuse; an objective eyewitness’s account;
and the like.” S.V., 933 S.W.2d at 15.
In this case, there is no confession by Dickerson, who is now deceased. Doe
ceased to remember the incident after he left Mobile and went home, so there are no
medical records, photographs, or recordings of his injuries. There was no objective
eyewitness. G.L. stated in his affidavit that Doe told him the night of the assault or
the next morning that “he was uncomfortable with something that Dickerson had
done to him,” but G.L. did not witness what happened to Doe, nor did he make a
contemporaneous written record of what Doe told him, so G.L.’s statement does not
objectively verify that Dickerson sexually assaulted Doe. Dickerson and the priests
from the school who went with Doe to Mobile are deceased, so they cannot provide
any testimony to verify the assault. Because Doe ceased to remember the assault
almost immediately, he could not have told his parents or anyone else.6 Nor is there
6
We make no determination that a contemporaneous record of a statement by a sexual abuse victim
shortly after the abusive incident describing the abuse and identifying the abuser would constitute objective
verifiable evidence of the assault because the source of the information would be the victim/plaintiff.
However, even if such evidence could be objective verifiable evidence, there is no such evidence in this
case.
–15–
any direct, physical evidence that he was assaulted. See Bertrand, 449 S.W.3d at
866.
In S.V., a majority of the supreme court rejected the suggestion of the
dissenting justice that the victim’s testimony that the assault occurred combined with
expert testimony that the expert believed the victim was sexually assaulted and that
the victim exhibited traits consistent with sexual abuse would be sufficient to meet
the element that the injury was objectively verifiable. The majority stated, “Were
this the rule, few claims of sexual abuse would ever be barred by limitations.” S.V.,
933 S.W.2d at 22.
Doe argues that, in line with the courts of South Carolina, we should conclude
there is evidence of objective verification of sexual abuse when there is “evidence
the abuser had sexually abused others.” See Moriarty v. Garden Sanctuary Church
of God, 511 S.E.2d 699, 710 (S.C. Ct. App. 1999), aff’d, 534 S.E.2d 672 (S.C.
2000).7 We decline to do so. In S.V., the Texas Supreme Court was clear about the
types of evidence that could provide objective verification for application of the
discovery rule in a sexual abuse case. All of those are highly credible types of
evidence demonstrating that the alleged sexual abuse actually occurred, such as a
criminal conviction of the abuser for the alleged abuse, statements in
7
In Moriarty, the South Carolina Court of Appeals and Supreme Court determined only that a plaintiff
could assert the discovery rule in a case involving repressed and subsequently recovered memories of sexual
abuse. The courts did not determine whether the plaintiff in that case had presented “objectively verifiable
evidence to corroborate” her claim. See Moriarty, 511 S.E.2d at 711; Moriarty, 534 S.E.2d at 682.
–16–
contemporaneous medical records, contemporaneous statements by the abuser, a
confession or other statement such as a diary entry by the abuser admitting the abuse,
or photographs or recordings of the abuse. See S.V., 933 S.W.2d at 15. These types
of evidence and “the like” could provide objective verification of the injury. Id. To
determine what evidence would constitute “the like” to the items listed in S.V., we
must determine what the listed items have in common. What all have in common is
that they are either direct evidence of the abuse or are contemporaneous records from
traditionally credible sources purporting to show that the accused person sexually
abused the victim. Evidence that an alleged abuser had sexually abused others is not
direct, physical evidence that the alleged abuse occurred, nor is it evidence
purporting to show that the alleged abuser sexually abused the victim. See Bertrand,
449 S.W.3d at 866 (injury is objectively verifiable “if the presence of the injury and
producing wrongful act cannot be disputed, and the facts upon which liability is
asserted are demonstrated by direct, physical evidence.”). Therefore, evidence that
an alleged abuser had abused others it is not “the like” of the other types of evidence
mentioned in S.V.
Doe also asks us to adopt the standard in Moriarty of “proof in this case of a
chain of facts and circumstances having sufficient probative force to produce a
reasonable and probable conclusion that sexual abuse occurred.” If the proof in the
chain of facts is of highly credible sources amounting to direct physical evidence of
the abuse, as the rest of the items listed in S.V. do, then it might provide for applying
–17–
the discovery rule. However, there is no such evidence in this case. Excluding Doe’s
testimony,8 the evidence shows Dickerson had sexually abused at least three youths
before Doe and G.L. stayed at Dickerson’s house, Doe did not go to bed at the same
time as G.L. but stayed up to talk to Dickerson, and Doe told G.L. that night or the
next day that “he was uncomfortable with something that Dickerson had done to
him.” This evidence does not permit a reasonable and probable conclusion that the
sexual abuse Doe alleged occurred, nor does it constitute direct physical evidence
that the abuse occurred. Doe also points to Dr. Doyle’s testimony. However, she
determined only that Doe’s symptoms were consistent with sexual abuse. She had
no independent knowledge that Dickerson sexually abused Doe. Her determination
that Dickerson had sexually abused Doe was based on Doe’s statements to her and
his petition and other court documents. In S.V., the supreme court rejected the idea
that an expert’s testimony combined with the testimony of the plaintiff constituted
objective verification of the injury. See S.V., 933 S.W.2d at 22.
We conclude the trial court did not err by granting appellees’ motion for
summary judgment on the ground that the discovery rule did not defer accrual of
Doe’s causes of action.
8
As discussed above, the Texas Supreme Court in S.V. rejected the suggestion that the plaintiff’s
testimony, even combined with expert testimony that the plaintiff’s symptoms were consistent with sexual
abuse, provided objective verification. See S.V., 933 S.W.2d at 22.
–18–
Fraudulent Concealment
Doe contends the trial court erred by granting appellees’ motion for summary
judgment because the doctrine of fraudulent concealment barred application of the
statute of limitations.
Fraudulent concealment is an equitable defense to the application of
limitations that estops a defendant from relying on the statute of limitations even
though the plaintiff did not bring suit within the limitations period. Draughon v.
Johnson, 631 S.W.3d 81, 93 (Tex. 2021). The plaintiff asserting fraudulent
concealment has the burden of presenting some evidence of each of the elements.
Id. “Fraudulent concealment requires showing that the ‘defendant actually knew the
plaintiff was in fact wronged, and concealed that fact to deceive the plaintiff.’”
ExxonMobil Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 544 (Tex. 2017) (quoting
BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011)); see also Santanna
Nat. Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex. App.—Austin
1997, pet. denied) (“The elements of fraudulent concealment are first, actual
knowledge by the defendant that a wrong has occurred, and second, a fixed purpose
to conceal the facts necessary for the plaintiff to know that it has a cause of action.”).
“Fraudulent concealment only tolls the running of limitations until the fraud is
discovered or could have been discovered with reasonable diligence.” BP Am. Prod.
Co., 342 S.W.3d at 67. Appellees moved for summary judgment on the traditional
ground that the fraudulent concealment defense does not apply in this case and on
–19–
the ground there was no evidence they concealed from Doe the existence of his
causes of action.
In S.V., the supreme court indicated that fraudulent concealment does not
usually apply to sexual abuse cases. There, the victim, R., alleged she was sexually
abused by her father and that she unconsciously repressed all memory of it for years.
S.V., 933 S.W.2d at 8. The supreme court stated that R. did not, and could not, allege
fraudulent concealment: “R. was not deceived into thinking that she was not being
abused when she was. To the contrary, R.’s contention is that she was fully aware
of the episodes of abuse, so painfully so that she repressed all memory of them for
years.” Id.
Doe testified in his deposition that neither the Society nor the School did
anything to prevent Doe from remembering what Dickerson did to him. He also
testified appellees did not do anything to keep him from filing a lawsuit.9 Like R. in
9
Doe testified in his deposition:
Q. . . . Do you think that the Jesuits have done anything to keep you from remembering
what Don Dickerson did?
A. No.
Q. Do you think that the school did anything to keep you from remembering what Don
Dickerson did?
A. No.
....
Q. Did the Jesuits do or say anything to keep you from filing a lawsuit?
A. No.
Q. And did the school do or say anything to keep you from filing a lawsuit?
A. No.
–20–
S.V., Doe was not deceived into thinking he was not being abused when he was.
Like R., the event was so traumatizing that Doe repressed all memory of the abuse
for decades. Furthermore, there is no evidence that appellees knew Dickerson had
sexually abused Doe until G.L. and Doe told them in 2018 and 2019, nor is there
any evidence that appellees concealed evidence of Dickerson’s abuse of Doe.
Doe argues appellees had a duty to disclose what they knew concerning
Dickerson’s history of sexually abusing minors. However, for there to be fraudulent
concealment, there must be evidence that appellees “actually knew [Doe] was in fact
wronged and concealed that fact to deceive [Doe].” See ExxonMobil, 511 S.W.3d
at 544; BP Am. Prod. Co., 342 S.W.3d at 67. Regardless of whether appellees were
aware that Dickerson had abused other minors, there is no evidence they knew Doe
“was in fact wronged.” See ExxonMobil, 511 S.W.3d at 544; BP Am. Prod. Co., 342
S.W.3d at 67. Because there is no evidence that appellees had any knowledge before
2018 that Dickerson had sexually abused Doe, there is no evidence they concealed
“that fact” to deceive Doe.
We conclude the trial court did not abuse its discretion by granting appellees’
motions for summary judgment on Doe’s claim that fraudulent concealment barred
the application of the statute of limitations.
Equitable Estoppel
Doe also contends the trial court erred by granting appellees’ motions for
summary judgment because appellees should be estopped from asserting the statute
–21–
of limitations. The doctrine of equitable estoppel requires the plaintiff to prove “(1)
a false representation or concealment of material facts; (2) made with knowledge,
actual or constructive, of those facts; (3) with the intention that it should be acted
on; (4) to a party without knowledge or means of obtaining knowledge of the facts;
(5) who detrimentally relies on the representations.” Johnson & Higgins of Tex.,
Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16 (Tex. 1998). The plaintiff
has the burden of raising some evidence of each element of equitable estoppel.
Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017). “Estoppel in
avoidance of limitations may be invoked in two ways: a potential defendant conceals
facts that are necessary for the plaintiff to know he has a cause of action; or, the
defendant engages in conduct that induces the plaintiff to forego a timely suit
regarding a cause of action that the plaintiff knew existed.” Doe v. Catholic Diocese
of El Paso, 362 S.W.3d 707, 724 (Tex. App.—El Paso 2011, no pet.). Appellees
moved for summary judgment on equitable estoppel on the traditional ground that
the doctrine does not apply in this case and on the ground that Doe had no evidence
that appellees induced him to delay suit beyond the limitations period.
Doe argues appellees concealed from him and his parents the facts that
Dickerson had sexually abused at least three minors before Doe stayed at his house
in 1978. Doe asserts he and his parents had no means to become aware of these
facts. He also asserts appellees intended for Doe to rely on their concealment of
these facts. He asserts, “This deliberate failure on the part of the Appellees to
–22–
disclose the facts regarding Dickerson’s prior sexually predatory behavior toward
children led to [Doe] being placed by the Appellees in the care of a known pedophile
in Dickerson and was a proximate cause of his injury.” However, the question is not
whether appellees engaged in conduct that grievously harmed Doe by concealing
their knowledge and permitting Dickerson to be around boys knowing Dickerson
was an uncontrollable pederast. That question goes to appellees’ potential
culpability for their actions. But the issue before us concerns only the applicability
of the statute of limitations. For that issue, we must determine whether the facts
appellees allegedly concealed were necessary for Doe to know he had a cause of
action or whether appellees induced Doe to forego a timely suit that Doe knew
existed.
Doe was aware, at least for a day or two after the assault, that Dickerson had
harmed him. Doe does not explain, and we do not perceive, how appellees’ alleged
concealment of Dickerson’s prior sexual abuse of children prevented Doe from
knowing he had a cause of action or induced him to forego bringing a timely suit
when he knew he had a cause of action. Nor does Doe present any evidence that
appellees concealed facts necessary for Doe to know Dickerson assaulted him or that
appellees did anything to prevent Doe from timely filing suit against them. Instead,
Doe testified appellees did nothing to prevent him from remembering what
Dickerson did to him or to prevent him from filing a lawsuit.
–23–
We conclude the trial court did not err by granting appellees’ motions for
summary judgment on equitable estoppel. We overrule Doe’s issue on appeal.
CONCLUSION
We do not question the sincerity of Doe’s motive for bringing the lawsuit or
the reality of the terrible ordeal he underwent at the hands of a person who should
have protected him and while in the care of organizations dedicated to protecting
children like himself. Like the supreme court, this Court is not “insensitive to the
terrible wrong of childhood sexual abuse and the strong public policies condemning
it. . . . [T]he law must approach these difficult cases with an appreciation of all the
interests affected.” S.V., 933 S.W.2d at 25–26. The purpose of the statute of
limitations is to “protect defendants and the courts from having to deal with cases in
which the search for truth may be seriously impaired by the loss of evidence, whether
by death or disappearance of witnesses, fading memories, disappearance of
documents or otherwise.” Murray, 800 S.W.2d at 828. The forty years between the
assault and Doe’s bringing suit has taken a toll on the evidence available in this case
as every person involved aside from Doe and G.L. appears to be deceased. The
courts have created narrow exceptions to the application of the statute of limitations,
including the discovery rule, fraudulent concealment, and equitable estoppel, but the
evidence conclusively established those exceptions do not apply in this case and that
Doe did not present evidence raising a genuine issue of material fact as to whether
those exceptions apply.
–24–
We affirm the trial court’s judgment.
/Lana Myers//
210616f.p05 LANA MYERS
JUSTICE
–25–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN DOE, Appellant On Appeal from the 14th Judicial
District Court, Dallas County, Texas
No. 05-21-00616-CV V. Trial Court Cause No. DC-19-03706.
Opinion delivered by Justice Myers.
CATHOLIC SOCIETY OF Justices Carlyle and Goldstein
RELIGIOUS AND LITERARY participating.
EDUCATION AND JESUIT
COLLEGE PREPARATORY
SCHOOL OF DALLAS INC.,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees Catholic Society of Religious and Literary
Education and Jesuit College Preparatory School of Dallas, Inc. recover their costs
of this appeal from appellant John Doe.
Judgment entered this 30th day of June, 2022.
–26–