#25634-a-JKM 

2011 S.D. 29

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

ROGER RODRIGUEZ a/k/a 

ROGER HICKEY, Plaintiff and Appellant, 

v. 

BROTHER MATTHEW MILES, JOHN 

DONADIO and (The) CONGREGATION 

OF THE PRIESTS OF THE SACRED 

HEART, INC., Defendants and Appellees. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

BRULE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE BRUCE V. ANDERSON 

Judge 

* * * * 

ARGUED ON MARCH 21, 2011 

 OPINION FILED 06/22/11 
WILLIAM G. TAYLOR 

JUSTIN G. SMITH of 

Woods, Fuller, Shultz & Smith, P.C. 

Sioux Falls, South Dakota Attorneys for plaintiff 

 and appellant. 

JAMES E. MCMAHON 

ROCHELLE R. SWEETMAN of 

Murphy, Goldammer & Prendergast, LLP Attorneys for appellee 

Sioux Falls, South Dakota Miles. 

ROBERT B. ANDERSON of 

May, Adam, Gerdes and Thompson, LLP Attorneys for appellee 

Pierre, South Dakota Donadio. 

RICK W. ORR 

TIMOTHY M. GEBHART of 

Davenport, Evans, Hurwitz and Smith, LLP 

Sioux Falls, South Dakota 

and 

STEVEN R. SMITH of 

Andera & Smith Law Offices 

Chamberlain, South Dakota Attorneys for appellee 

Congregation. 
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MEIERHENRY, Retired Justice 

[¶1.] The circuit court determined that the plaintiff’s action for childhood 

sexual abuse was barred by the three year statute of limitations. We affirm. 

[¶2.] The alleged sexual abuse against the plaintiff, Roger Rodriguez,1 while 

he was a student at St. Joseph’s Indian School in Chamberlain, South Dakota, 

occurred in the 1970’s when Rodriguez was between seven and ten years old. The 

defendants are Brother Matthew Miles and John Donadio (the alleged perpetrators) 

and the Congregation of the Priests of the Sacred Heart, Inc. (the entity that owned 

and operated St. Joseph’s). 

[¶3.] The South Dakota Legislature permits a person who was sexually 

abused as a child to sue within three years of the abuse or three years from the time 

the person “discovered or reasonably should have discovered that [his] injury or 

condition was caused by the act.” SDCL 26-10-252 (emphasis added). The 

defendants asserted that this statute barred Rodriguez’s claims because Rodriguez 

1. Rodriguez is also known as Roger Hickey. 

2. At time of this lawsuit, SDCL 26-10-25 provided as follows: 

Any civil action based on intentional conduct brought by any 

person for recovery of damages for injury suffered as a result of 

childhood sexual abuse shall be commenced within three years 

of the act alleged to have caused the injury or condition, or three 

years of the time the victim discovered or reasonably should 

have discovered that the injury or condition was caused by the 

act, whichever period expires later. 

The 2010 Legislature added the following language: “However, no person 

who has reached the age of forty years may recover damages from any person 

or entity other than the person who perpetrated the actual act of sexual 

abuse.” 
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discovered or reasonably should have discovered that the childhood sexual abuse 

caused him injury more than three years before his lawsuit was filed. The 

defendants point out that Rodriguez admitted in a deposition that he knew he had 

been sexually abused and that, over the years, the memory of it made him angry 

and caused him to use alcohol and drugs and lash out at others. He also admitted 

that it had affected his work and family life and had caused him indescribable pain 

and anger. Based on his deposition testimony, the defendants moved for summary 

judgment. 

[¶4.] In response, Rodriguez submitted an affidavit to clarify his deposition 

testimony. His affidavit indicated that he only became aware of the effects of the 

childhood sexual abuse after a psychologist, Dr. Frank Dame, explained them to 

him in 2005. Rodriguez recognized that he always had painful memories of the 

abuse and that he became “angry when [he] thought about being abused, . . . and 

lashed out, or drank or used drugs.” He clarified, however, that when the 

defendants’ lawyer asked him “if [he] knew at the time ‘that this abuse was causing 

[Rodriguez] these problems,’ it was those behaviors [(lashing out, drinking, and 

drug use)] [he] was referring to.” Rodriguez claimed that he considered his 

behaviors normal and “an everyday part of life in Lower Brule [Indian 

Reservation].” He further claimed that he did not understand the link between the 

behaviors and the sexual abuse. 

[¶5.] Dr. Dame’s opinion, presented by affidavit, was that Rodriguez “was 

unable to and did not associate his anger, depression, resistance to authority, 

sexual dysfunction, drug and alcohol abuse, and violent behavior patterns with [the 
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childhood sexual abuse].” Dr. Dame indicated that Rodriguez recognized that he 

got angry and used drugs and alcohol as coping mechanisms when he thought about 

the childhood sexual abuse but that Rodriguez “did not connect the injuries and 

conditions he suffered from with the [sexual abuse]” until the summer of 2005. 

[¶6.] Because this issue comes to us from an order granting summary 

judgment, we direct our review to “whether genuine issues of material fact exist and 

whether the law was correctly applied.” Zephier v. Catholic Diocese of Sioux Falls, 

2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662 (quoting Bordeaux v. Shannon Cnty. Sch.,

2005 S.D. 117, ¶ 11, 707 N.W.2d 123, 126). We view the evidence in the light most 

favorable to the non-moving party, Rodriguez. Id. (citing Wulf v. Senst, 2003 S.D. 

105, ¶ 17, 669 N.W.2d 135, 141). “Entry of summary judgment is mandated against 

a party who fails to make a showing sufficient to establish the existence of an 

element essential to that party’s case, and on which that party will bear the burden 

of proof at trial.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 

2548, 2552, 91 L. Ed. 2d 265, 273 (1986)). “[T]hose resisting summary judgment 

must show that they will be able to place sufficient evidence in the record at trial to 

support findings on all the elements on which they have the burden of proof.” Id. ¶ 

6 n.3 (citing Bordeaux, 2005 S.D. 117, ¶ 14, 707 N.W.2d at 126 (quoting Chem-Age 

Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted))). 

[¶7.] The statute of limitations in “SDCL 26-10-25 is an affirmative defense, 

and the burden of proof to establish affirmative defenses is on the party who seeks 

to rely on it.” Id. ¶ 9 (citing Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 

297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959))). “In 
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summary judgment proceedings, where the defendant asserts the statute of 

limitations as a bar to the action, and presumptively establishes the defense by 

showing the case was instituted beyond the statutory period, the burden [of 

production] then shifts to the plaintiff to establish the existence of material facts in 

avoidance of the statute of limitations[.]” Id. (quoting Conway v. Conway, 487 

N.W.2d 21, 23 (S.D. 1992)). “Generally, a statute of limitations question is left for 

the jury; however, ‘[d]eciding what constitutes accrual of a cause of action’ is a 

question of law and reviewed de novo.” One Star v. St. Francis Mission, 2008 S.D. 

55, ¶ 12, 752 N.W.2d 668, 675 (quoting Peterson v. Hohm, 2000 S.D. 27, ¶¶ 7-8, 607 

N.W.2d 8, 10-11 (citations omitted)). 

[¶8.] It is undisputed that Rodriguez knew of the alleged abuse more than 

three years before he filed suit. It is also undisputed that he got angry and 

depressed, exhibited aggressive behavior, and used drugs and alcohol when he 

thought about the abuse. Dr. Dame labeled Rodriguez’s reactions as coping 

mechanisms and concluded that Rodriguez had not connected the sexual abuse with 

his reactions, i.e. injuries, until 2005 during counseling. 

[¶9.] Dr. Dame’s affidavit may support Rodriguez’s claim that he did not 

have actual notice more than three years before filing his action. But Dr. Dame’s 

affidavit leaves open whether Rodriguez had inquiry notice. An action “accrues and 

the plaintiff is put on inquiry notice when facts come to light that would prompt a 

reasonably prudent person to seek out information regarding his or her injury or 

condition and its cause.” One Star, 2008 S.D. 55, ¶ 18, 752 N.W.2d at 677. This 

Court explained inquiry notice in Zephier as follows: 
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[O]ne having actual notice of circumstances sufficient to put a 

prudent person on inquiry about a particular fact, and who omits 

to make such inquiry with reasonable diligence, is deemed to 

have constructive notice of the fact itself sufficient to start the 

running of the statute of limitations. Limitations periods will 

not abide indefinitely while those aggrieved discover all their 

damages. Statutes of limitations begin to run when plaintiffs 

first become aware of facts prompting a reasonably prudent 

person to seek information about the problem and its cause. 

Consequently, as we noted in One Star, SDCL 26-10-25 accrues 

when the plaintiff is put on inquiry notice of facts that would 

prompt a reasonably prudent person to seek out information 

regarding his or her injury or condition and its cause. 

2008 S.D. 56, ¶ 14, 752 N.W.2d at 665 (citations and quotations omitted). 

Rodriguez commenced his action in November 2007. Even assuming that Rodriguez 

did not discover the connection between the sexual abuse and his injuries or 

condition until 2005, his action may still be barred if he was put on inquiry notice 

more than three years before he commenced his action. Therefore the question is 

whether Rodriguez became aware of facts that would have prompted “a reasonably 

prudent person to seek information about the problem and its cause” more than 

three years before commencing his action, or, stated otherwise, whether he had 

inquiry notice. Id. 

[¶10.] The facts material to inquiry notice are not in dispute. Rodriguez 

admitted in his deposition that, over the years, memories of the sexual abuse made 

him angry and caused other negative reactions. He answered as follows: 

Defense Lawyer: In terms of your memories of these events, 

either of the sexual abuse from John Donadio 

or Brother Matt, did you think about that 

from time to time over the years? 

Rodriguez: Oh, yeah. 

. . . 
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Defense Lawyer: When you would think about this abuse, it 

would make you very angry? 

Rodriguez: Oh, very angry. 

. . . 

Defense Lawyer: You knew in your mind at the time that it 

was affecting you in that way? 

Rodriguez: Oh, yes, it did. 

Defense Lawyer: And there was never a time that you ever 

forgot about any of this, did you? 

Rodriguez: Nope. 

. . . 

Defense Lawyer: You’ve had a number of problems with 

alcohol and drug abuse over the years? 

Rodriguez: Yes. 

Defense Lawyer: Do you attribute that to the sexual abuse? 

Rodriguez: Oh, yes. 

Defense Lawyer: So when you would think about the abuse, 

that would make you want to use alcohol and 

other drugs? 

Rodriguez: It was either lash out or crawl in a bottle. 

Lash[ing] out ended me in prison. Lashing 

out caused me to go to prison. 

. . . 

Defense Lawyer: What other ways do you think the abuse has 

affected you? 

Rodriguez: It affected my work back then. It affected 

my family life. The way I raised my 

children. I mean, there’s just so much—

there’s just so much that it— so much pain 

and anger that it caused. It’s [in]describable. 

Defense Lawyer: You knew at the time that this abuse was 

causing you these problems? 

Rodriguez: Yep. 
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Rodriguez also admitted that he disclosed to a prison official that he was sexually 

abused sometime before 2000. He explained: 

Every time you go to prison, they do a psychological evaluation 

on you. I had mentioned it one time that I’d been sexually 

abused. . . . [The counselor] had recommended that I come back 

and see him, but I never did. I never mentioned no names. I 

didn’t mention no stories. I just told him that I had been 

sexually abused and that I had – I should start trying to deal 

with it. 

. . . 

I told ‘em that I needed to deal with a sexual abuse that was 

with me. But I didn’t tell ‘em no details. 

He later qualified his answer by affidavit as follows: 

At the time I went into the federal prison system, I had no 

understanding of the injuries and conditions I sustained as a 

result of the sexual abuse. I didn’t understand how the abuse 

affected me until after I began discussing it with Dr. Dame in 

2005. I recognized that the memories were painful for me, and it 

was the pain associated with those memories I was referring to 

when I said I “had to deal with it.” I was prideful, tough, angry, 

violent, and a drug and alcohol abuser at the time, living on a 

reservation where those behaviors are the norm, not the 

exception. I never saw any reason to modify my behavior nor did 

I remotely link any of it to the sexual abuse. I thought my 

behavior was normal. 

Rodriguez further acknowledged that he corresponded with Donadio around 1994 

and asked “why he had done this to us.” Around that time, Rodriguez contacted 

Donadio’s ex-wife to warn her about Donadio’s abuse since Donadio had “two little 

boys at the time.” 

[¶11.] Inquiry notice is determined by an objective standard. Rodriguez and 

Dr. Dame focus on what Rodriguez knew subjectively. Even though Rodriguez was 

subjectively unable to connect the full extent of his injuries or condition to the 
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sexual abuse, he was aware of enough facts to put him on inquiry notice. He knew 

he had been abused as a child. He knew when he thought about the abuse he got 

angry, he lashed out, and he used drugs and alcohol. He knew the memory of the 

abuse affected his behavior. He knew the memories were painful. He 

acknowledged to the prison counselor that he “should start trying to deal with it.” 

These facts were sufficient to “prompt[] a reasonably prudent person to seek out 

information regarding his injury or condition and its cause.” Zephier, 2008 S.D. 56 

¶ 14, 752 N.W.2d at 665. Because Rodriguez had inquiry notice more than three 

years before he filed suit, we affirm. 

[¶12.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, 

and HOFFMAN, Circuit Court Judge, concur. 

[¶13.] HOFFMAN, Circuit Court Judge, sitting for KONENKAMP, Justice, 

disqualified.