John Doe v. Roman Catholic Archdiocese of Galveston-Houston by & Through Daniel Cardinal DiNardo, His Predecessors and Successors, as Bishop of the Roman Catholic Archdiocese of Galveston-Houston and Reverend Terry Brinkman

Affirmed and Opinion filed January 26, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00093-CV

JOHN DOE, Appellant

V.

ROMAN CATHOLIC ARCHDIOCESE OF GALVESTON-HOUSTON BY AND
THROUGH DANIEL CARDINAL DINARDO, HIS PREDECESSORS AND
SUCCESSORS, AS BISHOP OF THE ROMAN CATHOLIC
ARCHDIOCESE OF GALVESTON-HOUSTON AND REVEREND TERRY
BRINKMAN, Appellees

On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2010-41180

OPINION

Appellant John Doe appeals from the trial court’s grant of summary judgments in
favor of appellees, the Roman-Catholic Archdiocese of Galveston-Houston and the
Reverend Terry Brinkman, on the grounds that Doe’s claims based on alleged sexual
assault by Brinkman are barred by the statute of limitations. On appeal, Doe contends the
trial court abused its discretion by refusing to continue the summary-judgment hearing so
that Doe could have a reasonable opportunity to conduct and obtain discovery to prove an
exception to the affirmative defense of statute of limitations. We affirm.
I
Doe filed this lawsuit on July 2, 2010, alleging that between 1974 and 1976, when
Doe was a minor, Reverend Brinkman sexually abused him. Doe alleged that the sexual
contact occurred on property of the archdiocese, primarily when Doe was performing
church-related services, such as serving as an acolyte, at St. Charles Borremeo Church.
Doe further alleged that the archdiocese was vicariously liable for Brinkman’s alleged
wrongful conduct. In his petition, Doe asserted claims including negligence, breach of
fiduciary duty, fraud, and conspiracy against the defendants. Doe’s petition included a
request for initial disclosures under Rule 194 of the Texas Rules of Civil Procedure.
Brinkman and the archdiocese, represented by separate counsel, answered,
asserted affirmative defenses including the statute of limitations, and moved for summary
judgment on limitations grounds.1 They also moved to stay or limit discovery pending the
trial court’s ruling on the summary-judgment motions. The motions to stay or limit
discovery were set for hearing on August 16, 2010, and the motions for summary
judgment were set for hearing on August 30. In response, Doe filed an instrument titled
―Plaintiff’s Emergency Motion to Strike Defendants’ Motion to Stay or Limit Discovery
and Plaintiff’s Emergency Motion to Strike or Stay Defendants’ Motion for Summary
Judgment, and Plaintiff’s Response to Defendants’ Motion to Stay or Limit Discovery, or
Alternatively, Plaintiff’s Motion for Continuance, and Plaintiff’s Motion for Sanctions.‖
Doe argued that the defendants’ motions for summary judgment were premature and
requested that the trial court cancel the August hearing dates until an adequate time for
discovery has passed.

1
The archdiocese and Doe entered into an agreement on April 27, 2007, tolling the statute of
limitations with respect to Doe’s claims as of that day. Thus, the question on summary judgment for the
archdiocese was whether even April 27, 2007, was too late for Doe to have brought this action against it.
Brinkman was not a party to the tolling agreement.
2
 The archdiocese responded, asserting that it was entitled to move for summary
judgment at any time, Doe’s claims were time-barred on the face of his petition, and Doe
did not plead any facts that would toll the statute of limitations. The archdiocese also
asserted that Doe’s voluntary statements to a psychiatrist whom he knew was retained by
the archdiocese that he ―never forgot‖ about the alleged abuse and told others about it
more than a decade ago precluded any tolling theory. Additionally, the archdiocese
contended that Doe’s motion for continuance failed to satisfy the requirements of Rule
166a(g). In a supplemental response to the defendants’ motions to stay or limit discovery,
Doe asserted, among other things, that under the facts of this case the discovery rule,
fraud, and fraudulent concealment should defer the statute of limitations’ accrual date,
and that the defendants were equitably stopped from even asserting limitations as a
defense.
Doe’s ―emergency‖ motions were set for hearing on August 6, 2010. At the
hearing, the trial court indicated that it was not prepared to rule on the substantive issues
and requested additional briefing from the parties. That same day, the trial court signed
an order denying Doe’s motion for sanctions and reflecting that the defendants had
passed their August 30 hearings on their motions for summary judgment. On August 16,
the trial court conducted the previously set hearing on defendants’ motions to stay or
limit discovery. At the conclusion of the hearing, the trial court took the matter under
advisement.
On August 31, Doe and the archdiocese entered into a Rule 11 agreement that the
archdiocese was not required to object or respond to Doe’s discovery requests until thirty
days from the date of the trial court’s written ruling on the on the archdiocese’s motion to
stay or limit discovery. Doe and Brinkman also entered into a similar agreement.
On September 27, the trial court denied the defendants’ motions to stay or limit
discovery, and on its own motion set the defendants’ motions for summary judgment for

3
oral hearing on November 1, 2010.2 Three days later, Doe filed an ―Emergency Motion
for Continuance‖ (Doe’s second motion for continuance) in response to the trial court’s
November 1 setting, arguing that the parties’ Rule 11 agreement would prevent him from
receiving the defendants’ objections and responses to his discovery requests before his
response to the defendants’ motions for summary judgment was due. After receiving
additional briefing from the parties, the trial court denied this motion on October 13,
2010.
On October 18, the archdiocese sent a draft protective order to Doe, but Doe’s
attorneys did not immediately respond. The archdiocese’s lawyers did not learn that
Doe’s lawyers objected to the proposed order until they arrived for Brinkman’s
deposition on October 21. No agreement on a protective order was ever reached.
On October 25, Doe filed a combined response to the defendants’ motions for
summary judgment and a verified motion for continuance. In this motion for continuance
(his third), Doe stated that he had received some discovery from Brinkman and had taken
his deposition, but he had received no discovery from the archdiocese, and he needed
additional time to conduct discovery to support his claims and defenses to the statute of
limitations. Brinkman and the archdiocese replied to Doe’s filing. Among other things,
the archdiocese asserted that it had offered to produce certain discovery under a proposed
confidentiality agreement before Doe’s response to its motion for summary judgment was
due, but Doe would not agree to its terms. Additionally, both defendants reiterated that
they were entitled to judgment because the statute of limitations had run years ago, Doe
did not dispute his knowledge of the alleged abuse, and he failed to raise a fact issue on
his asserted defenses to the statute of limitations. The defendants further responded that

2
Doe faxed second requests for production to the defendants on September 29, and also served
interrogatories to Brinkman. In response, the archdiocese represented that it would serve objections and
responses to the requests for production before they were due, and Brinkman said he would respond to all
pending discovery requests before October 15. Brinkman also agreed to be deposed on October 21, and
the archdiocese offered to pay for an expedited transcript of the deposition if Doe wanted it.
4
the continuance failed to satisfy the requirements of Rule 166a(g). Two days later, on
October 27, Doe also filed a motion to compel discovery.
On November 8, 2010, the trial court signed final judgments granting the
defendants’ motions for summary judgment ―based on the expiration of the statute of
limitations.‖3 Later that same month, Doe filed a ―Motion for Order Compelling
Complete Answers to Interrogatories and Responses to Requests for Production‖ that did
not mention the final judgments entered earlier. A hearing on this motion was set for
December 6, 2010.
Also on December 6, Doe filed ―Plaintiff’s Motion to Reconsider Defendants’
Motions for Summary Judgment and Verified Motion for Continuance and Motion for
New Trial.‖ In an affidavit accompanying this request for a continuance (Doe’s fourth),
counsel for Doe stated that additional time was needed to conduct full discovery because
the discovery ―cannot be secured from any other source and is necessary or material to
raise a fact issue or issues‖ to defeat the defendants’ motions for summary judgment and
their affirmative defense of limitations. Doe filed a ―supplemental‖ motion for new trial a
few days later requesting that the trial court grant a new trial ―in the interest of justice and
fairness.‖ After a hearing on Doe’s motions to reconsider, for continuance, and for new
trial, the trial court denied the motions. This appeal followed.

II

On appeal, Doe argues he was allowed less than one month to conduct discovery
before the summary judgments were granted and, at the time his response was due, he
had no discovery from the archdiocese and only limited information from Brinkman. Doe
also argues that the discovery he sought was the type of evidence that typically supports
an exception to the statute of limitations in clergy sex abuse cases like this one, and he
did everything he could to obtain the discovery being withheld. Consequently, Doe

3
Apparently, a hearing on the defendants’ motions for summary judgment was held on
November 1, but was not included in the record.
5
contends the trial court abused its discretion by denying his verified motions for
continuance4 and granting summary judgment without allowing him necessary discovery
that would support an exception to the statute of limitations and assist him in opposing
summary judgment.

In response, the archdiocese and Brinkman maintain that Doe’s motions do not
satisfy procedural requirements and fail to identify any discovery needed that would be
material to the limitations issue. We agree with the archdiocese and Brinkman.

A

This court reviews a trial court’s ruling on a motion for a continuance for abuse of
discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A
trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable
as to amount to a clear and prejudicial error of law.‖ Id.

When a party argues it has not had an adequate opportunity for discovery before a
summary-judgment hearing, that party must file an affidavit explaining the need for
further discovery or a verified motion for continuance. Tex. R. Civ. P. 166a(g), 251, 252;
Joe, 145 S.W.3d at 161. The affidavit must explain why the continuance is necessary;
conclusory allegations are insufficient. Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied). We may consider the following non-
exclusive factors in determining whether the trial court abused its discretion: (1) the
length of time the case has been on file, (2) the materiality and purpose of the discovery
sought, and (3) whether the party seeking the continuance has exercised due diligence to
obtain the discovery sought. Joe, 145 S.W.3d at 161.

4
In his argument, Doe refers to his third and fourth motions for continuance, but does not appear
to complain that the trial court abused its discretion by denying his first two continuance motions. In any
event, these two motions were neither verified nor supported by an affidavit, and the trial court would not
have abused its discretion by denying them. See Carter v. MacFayden, 93 S.W.3d 307, 310 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied).
6
 B

A cause of action accrues when a wrongful act causes some legal injury, even if
the injury is not discovered until later, and even if not all resulting damage has occurred.
S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). The date of accrual is a question of law.
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).

For a claim arising from an injury received as a minor, limitations does not begin
to run until the minor reaches majority. Minority is a legal disability, and the limitations
period is tolled for the duration of a legal disability. Tex. Civ. Prac. & Rem. Code §
16.001. Because Doe’s claims involve an alleged sexual assault, Doe’s causes of action
are subject to a five-year statute of limitations. Tex. Civ. Prac. & Rem. Code §
16.0045(a)(1); Stephanie M. v. Coptic Orthodox Patriarchate Diocese of the So. U.S.,
No. 14-10-00004-CV, ___ S.W.3d ___, 2011 WL 1761353, at *4 (Tex. App.—Houston
[14th Dist.] Mar. 17, 2011, pet. denied) (holding as matter of first impression that five-
year statute of limitations applies to claims against diocese and church arising out of
sexual assault of minor by priest). The five-year period started when the cause of action
accrued. Tex. Civ. Prac. & Rem. Code § 16.0045(a)(1). Construing sections 16.001 and
16.0045(a) together, a plaintiff who was sexually assaulted as a minor must bring any
claim arising out of that assault by his 23rd birthday.

Here, Doe’s petition pleads that (1) the alleged assaults began in 1974, and (2)
Doe was a minor at the time. The summary-judgment evidence indicates Doe was forty-
seven years old on December 21, 2009. Thus, he would have turned 23 no later than
December 21, 1985. Absent some theory that defers the accrual date or tolls the running
of limitations, Doe’s deadline to sue was on or before December 21, 1985, more than
twenty years ago.

Examples of doctrines that may defer or toll the running of the statute of
limitations include the discovery rule, fraudulent concealment, and equitable estoppel.

7
The discovery rule is a very limited exception which defers the accrual of a cause of
action until the injury was or could have reasonably been discovered. Shell Oil Co. v.
Ross, No. 10-0429, ___ S.W.3d ___, 2011 WL 6277778, at *5 (Tex. Dec. 16, 2011). It
applies only when ―the alleged wrongful act and resulting injury are inherently
undiscoverable at the time they occurred but may be objectively verified.‖ S.V., 933
S.W.2d at 6. An injury is inherently undiscoverable if it is by nature unlikely to be
discovered within the prescribed limitations period despite due diligence. Id. at 7.

Although similar in effect to the discovery rule, the fraudulent-concealment
doctrine is an affirmative defense to limitations that resembles equitable estoppel.
Seureau v. ExxonMobil Corp. 274 S.W.3d 206, 228 (Tex. App.—Houston [14th Dist.]
2008, no pet.). This doctrine estops a defendant from relying on the defense of limitations
if the defendant was under a duty to make a disclosure but fraudulently concealed the
existence of a cause of action from the party to whom it belongs. Id. To prove fraudulent
concealment, the plaintiff must demonstrate that the defendant had (1) actual knowledge
that a wrong occurred, (2) a duty to disclose the wrong, and (3) a fixed purpose to
conceal the wrong. Id.; see also Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).
But the legal effect of concealment does not extend the limitations period indefinitely.
Etan Indus., Inc. v. Lehmann, No. 10-0318, ___ S.W.3d ___, 2011 WL 6276308, at *2
(Tex. Dec. 16, 2011). This doctrine defers accrual only until the plaintiff learns of facts,
conditions, or circumstances which would cause a reasonably prudent person to make
inquiry, which, if pursued, would lead to discovery of the concealed cause of action.
Borderlon, 661 S.W.2d at 909.

Fraudulent concealment is akin to the broader doctrine of equitable estoppel.
Equitable estoppel is not a cause of action but may be asserted as a defensive plea to bar a
defendant from raising a particular defense. See Joe, 145 S.W.3d at 156 n.1. Equitable
estoppel requires: (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

8
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). As with fraudulent
concealment, however, the estoppel effect ends when the plaintiff learns of facts,
conditions, or circumstances which would lead a reasonably prudent person to inquire
and thereby discover the cause of action. See Marshall v. First Baptist Church of
Houston, 949 S.W.2d 504, 508 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

C

As noted above, Doe alleges Brinkman sexually abused him between 1974 and
1976, but he did not file suit until July 2, 2010. In their motions for summary judgment,
the archdiocese and Brinkman presented evidence based on a psychiatric evaluation of
Doe conducted on December 21, 2009, by Andrea Stolar, M.D. At the start of her
interview, Dr. Stolar informed Doe that she had been retained by counsel for the
archdiocese, she would be providing a report about him to the archdiocese’s lawyer, and
nothing Doe told her was confidential. During the interview, Doe admitted he had told his
brother-in-law about the alleged abuse some twelve years earlier. He also admitted that
he disclosed the claimed assault to his family ―several years‖ earlier. Further, Doe told
Dr. Stolar that he observed two male roommates having sex while he was in the army,
which ―brought up feelings of disgust about being sexually abused by a man.‖ Doe joined
the army when he was sixteen and was enlisted for three years. Dr. Stolar wrote in her
report that Doe ―was able to recall the [alleged] assaults in great detail‖ and he never
forgot about them. She also indicated that, at the time of the interview, Doe was a 47-
year-old man. Based on these facts, the archdiocese and Brinkman argued that Doe’s
admission to Dr. Stolar proved that Doe knew about the alleged abuse long before the
limitations period expired.

Doe’s third motion for continuance was verified and supported by his lawyer’s
affidavit. The substantive portion of the affidavit recites the following:
9
 2. This case has been on file for less than four months.

3. Additional time is needed to conduct full discovery. This discovery
cannot be secured from any other source, and it is necessary or material to
challenge Defendant’s Motions for Summary Judgment and their statute of
limitations affirmative defense. Specifically, the information and items
produced in discovery will assist Plaintiff in establishing Plaintiff’s claims
which defer, toll, or otherwise eliminate the statute of limitations defense
or, at a minimum, will create a fact issue on this affirmative defense for a
jury to decide.

4. This request for continuance is not for delay but [so] that justice may be
done.

In the motion, Doe stated that ―[f]ull discovery is necessary to assist Plaintiff in
establishing his claims which defer, toll, and/or eliminate the statute of limitations
altogether, which would oppose Defendants’ Motions for Summary Judgment.‖ Doe
stressed that the case had been on file only four months, and explained that ―[t]he
necessary discovery includes documents or items in [the archdiocese’s] possession as
well as depositions.‖ Doe also stated that ―[t]his discovery cannot be procured from any
other source.‖

Doe’s fourth motion for continuance also was verified and supported by his
lawyer’s affidavit. In this motion, Doe made the same arguments he made before and, in
addition, specified the particular documents and depositions he wanted.5 Doe stated that
he needed this discovery to help ―establish or support of [his] claims, and particularly,
claims . . . which defeat Defendant’s Motions or limitations defense.‖ Although Doe
explained how he believed the information he sought would support his claims, he did

5
The documents Doe identified as necessary discovery in the archdiocese’s possession included
―the employment or personnel file of Brinkman, correspondence and/or notes or memorandums relating
to Brinkman’s assignments and transfers, disciplinary measures or reprimands, notice to the [a]rchdiocese
relating to Brinkman and other priests who sexually abused young boys or parishioners, documents and
items relating to Brinkman having mental or emotional or substance abuse issues, and documents and
items relating to his homosexuality‖ as well as ―depositions of Doe’s expert on Catholicism and historical
policies and procedures and practices in the Catholic Church and dioceses, the custodian of records for
the [a]rchdiocese, other altar boys who worked with and who were sexually abused by Brinkman, and
past and present family, friends, parishioners, and/or colleagues of Brinkman.‖
10
not explain how it would enable him to defeat the defendants’ asserted affirmative
defense of limitations.

Indeed, in neither motion does Doe identify or explain what relevant facts he
expected to discover that would enable him to defeat or raise a fact issue on the
affirmative defense of limitations. Doe has not contended that anyone other than
Brinkman allegedly abused him, or that he suffered from repressed memories or unsound
mind, or that he was prevented from filing suit earlier due to threats, coercion, or duress.
And there is no dispute as to his age, his knowledge of the alleged abuse for well over
twenty years, and the date he filed suit. Although Doe generally asserts that the discovery
he sought would support doctrines which would ―defer, toll, or eliminate‖ the statute of
limitations, including breach of fiduciary duty, fraud, concealment, the discovery rule,
and equitable estoppel, he did not discuss the elements of these doctrines or explain how
they would apply on these facts. Because Doe failed to explain how the additional
discovery he sought was in any way material, the trial court did not abuse its discretion in
denying the motions for continuance. See Joe, 145 S.W.3d at 162; Duerr v. Brown, 262
S.W.3d 63, 78–79 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Carter, 93 S.W.3d at
310.

On appeal, Doe contends that claims like fraud, fraudulent concealment,
conspiracy, breach of fiduciary duty, equitable estoppel, and the discovery rule ―provide
an exception to the affirmative defense of statute of limitations.‖ He also maintains that
the discovery he seeks is material ―in a case like this‖ because it ―is the type of evidence
that typically supports these claims and an exception to the affirmative defense of statute
of limitations.‖ Doe first points to the affidavit of Father Thomas Doyle, which he
attached to his motions below. Doe maintains that Doyle, described as an expert on
Catholicism and ―the clergy sex abuse crises,‖ confirmed in his affidavit that the
information and items Doe requested in discovery are the types of evidence that typically
support claims like fraud, concealment, and equitable estoppel, and provide an exception

11
to the statute of limitations. Doe also argues that, because the archdiocese and Brinkman
did not object to Doyle’s affidavit, the facts Doyle recited must be accepted as true.

In his affidavit, Doyle avers that he has observed ―common themes‖ in clergy sex
abuse cases, including the intentional withholding of information or facts relating to
priests’ dangerous sexual propensities toward minors and the practice of reassigning
offending clerics to other parishes or ministries. Doyle also avers that the Catholic
Church regularly fails to follow its own legal procedures when abuse is reported, and
goes to great lengths to prevent the disclosure of the extensive documentation it keeps on
priests. Doe notes that Doyle describes the types of items that dioceses typically withhold
in clergy sex abuse cases ―throughout the world.‖ But Doyle’s affidavit contains no
statement about this archdiocese, as opposed to dioceses generally, or its archbishop. And
his opinions about ―common themes‖ in sexual-abuse cases are neither sufficiently
supported by facts nor specific enough to raise a fact issue on the defendants’ limitations
defense in this case. See Carter, 93 S.W.3d at 310 (conclusory allegations in an affidavit
are not sufficient to support a motion for a continuance).

Doe next contends that the rule on summary judgment is to allow discovery so that
disputes may ―be decided by what the facts reveal, not what facts are concealed.‖ See
Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 466–67 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied). Doe argues that his lawsuit had only been on file four
months, he had less than one month to obtain discovery, he had received little or no
discovery from the defendants when the trial court granted summary judgment, and he
was diligent in seeking discovery material to his case. Doe urges he had a right to engage
in discovery before summary judgment was granted, and trial courts in Texas abuse their
discretion by granting summary judgment when there has been very little time for
discovery. In support of his position, Doe primarily relies on three cases: Laughlin v.
Bergman, 962 S.W.2d 64, 65–66 (Tex. App.—Houston [1st Dist.] 1997, pet. denied);
Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 512 (Tex. App.—Houston [1st

12
Dist.] 1994, no writ); and Verkin v. Sw. Ctr. One, Ltd., 784 S.W.2d 92, 95–96 (Tex.
App.—Houston [1st Dist.] 1989, writ denied).

We acknowledge that Doe’s lawsuit had been on file only a short time when the
trial court granted the summary judgments. And we assume for purposes of argument that
Doe was diligent in attempting to obtain discovery. But in this case, Doe failed to identify
any facts he needed to discover before the hearing on the motions for summary judgment.
Moreover, he failed to explain how any facts he might discover could support the
doctrines he contended would defer or toll limitations in the face of Doe’s age and his
undisputed knowledge of the alleged abuse. A trial court does not abuse its discretion by
refusing to permit the discovery of immaterial facts. See Joe, 145 S.W.3d at 162; Nat’l
Union Fire Ins. Co. of Pittsburgh, P.A. v. CBI Indus., Inc., 907 S.W.2d 517, 521–22
(Tex. 1995); Wright v. Sydow, 173 S.W.3d 534, 550 (Tex. App.—Houston [14th Dist.]
2004, pet. denied).

Further, Doe’s cases are distinguishable. In both Laughlin and Levinthal, unlike
this case, the discovery sought was material and necessary. See Laughlin, 962 S.W.2d at
66 (trial court abused its discretion by denying plaintiff a continuance to depose
plaintiff’s former attorney and review his files in legal-malpractice case before ruling on
attorney’s summary-judgment motion when the discovery sought was ―absolutely
critical‖ to plaintiff’s case); Levinthal, 902 S.W.2d at 511–12 (discovery sought by
physician before trial court ruled on defendant medical clinic’s summary-judgment
motion was necessary to show a conspiracy to restrain trade and would not be readily
available by means other than the discovery process in a case that had been on file for
three months).

Verkin is also distinguishable, but for a different reason. In that case, a plaintiff
moved for summary judgment on his own pleadings shortly after the defendant answered.
784 S.W.2d at 93–94. The appellate court’s decision rested in part on the case’s
uncommon procedural posture. The defendant moved to continue the summary-judgment
13
hearing because he had not had enough time to investigate the plaintiff’s claims and
conduct discovery. Id. At 94. In explaining why an early motion for summary judgment
filed against a plaintiff is different from one against a defendant who has just answered,
the court stated, ―We can presume a plaintiff has investigated his own case; we cannot
make the same assumption about a defendant.‖ Id. at 95–96.

Finally, Doe also argues that his knowledge of the alleged abuse by Brinkman
does not necessarily start limitations running on his claims against the archdiocese. In
oral argument, Doe asserted that the archdiocese owed Doe a fiduciary duty requiring it
to disclose to him its knowledge of alleged abuse by priests and this failure to disclose is
some evidence of fraud and concealment. According to Doe, because the archdiocese has
to this day never informed him that he had claims against it, his causes of action against
the archdiocese have not yet accrued. This argument is wholly untenable and contrary to
settled law. As discussed above, doctrines that defer the accrual of a cause of action cease
to apply once a plaintiff discovers or should have discovered knowledge that would cause
a reasonably prudent person to inquire about his rights. Here, Doe’s knowledge of the
alleged abuse is the relevant knowledge for purposes of the accrual date of his claims
against both Brinkman and the archdiocese. See Stephanie M., 2011 WL 1761353, at *3
(concluding that plaintiff’s negligence claims against church and diocese were ―not
independent‖ of her claim of sexual abuse by priest).

Several cases illustrate the point that knowledge of the alleged abuse starts the
clock. In S.V. v. R.V., a woman sued her father for sexually abusing her. S.V., 933
S.W.2d at 3. She claimed she repressed all memory of the abuse, rendering the abuse
inherently undiscoverable, and the discovery rule therefore deferred the limitations
period. Id. at 8. The Supreme Court of Texas primarily focused on the ―objectively
verifiable‖ prong of the discovery rule, but it also recognized that the doctrine of
fraudulent concealment could not apply to the plaintiff’s claims because she knew of the

14
abuse: ―[The plaintiff] does not allege fraud or fraudulent concealment, nor could she.
[She] was not deceived into thinking that she was not being abused when she was.‖ Id.

In Marshall v. First Baptist Church, 949 S.W.2d at 507–508, this court addressed
the discovery rule, fraudulent concealment, and equitable estoppel in a case involving
claims against a church arising out of an alleged sexual assault of a minor. In that case,
Marshall sued his church, alleging that church’s director of youth music sexually
assaulted Marshall when he was twelve. Id. at 505. This court affirmed the trial court’s
grant of the defendants’ summary-judgment motions on limitations because, like Doe,
Marshall was ―acutely aware‖ of the abuse and the church’s alleged inaction within the
limitations period, as he claimed he repeatedly reported the assault and the church never
did anything about it. Id. at 507. This court affirmed, concluding that (1) the discovery
rule did not apply because ―[t]here is no question that Marshall had discovered the
wrongful acts,‖ and (2) fraudulent concealment and equitable estoppel did not apply
because Marshall knew of his alleged abuse and resulting psychological injuries, noting
that ―[n]o one associated with the [c]hurch attempted to conceal them from him.‖ Id. at
507–08. Like Marshall, Doe also says he reported the alleged abuse.

Similarly, in Doe v. Linam, 225 F. Supp. 2d 731, 733 (S.D. Tex. 2002), the
plaintiff sued a priest and an archdiocese, claiming that the priest sexually abused him
between 1973 and 1974. He alleged that his ―chronic psychological condition . . .
prevented him from understanding and appreciating that the serious emotional, physical,
and sexual difficulties he suffers from were the direct result of the sexual abuse and other
actions [of the defendants] until after January of 2002.‖ Id. at 735. As here, the other
actions were said to include an alleged cover-up by the archdiocese. Id. The court
concluded that no theory applied to defer or toll the running of the statutes of limitation.
Id. at 735–36. Specifically, the court held that the discovery rule did not apply, despite
the plaintiff’s professed lack of understanding of a link between his condition and the
defendants’ conduct, because the plaintiff knew of both the alleged abuse by the priest

15
and the archdiocese’s alleged inaction after the abuse. Id. Fraudulent concealment also
did not apply because the alleged abuse put the plaintiff on notice to investigate any other
claim he might be able to assert. Id. at 736. As the court explained:

Plaintiff was clearly aware he had been abused and that he was having
psychological problems at the time before the statutes of limitations began
to run on his various causes of action. His knowledge of these facts and
circumstances could have reasonably led him to discover his allegedly
concealed causes of action [against the [a]rchdiocese], if he had only made
a simple inquiry into his rights.

Id.. Further, the court concluded that equitable estoppel did not apply because the
plaintiff ―admittedly had knowledge of the facts giving rise to his claims—the fact that he
had been abused and the fact that he was suffering from psychological problems.‖ Id. at
737.

Based on the foregoing, we conclude that the trial court acted within its discretion
by denying Doe’s motions for continuance and granting summary judgment.

***

We overrule Doe’s issue and affirm the trial court’s judgment.

/s/ Jeffrey V. Brown
Justice

Panel consists of Justices Brown, Boyce, and McCally.

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