COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

J OHN DO E, Appellant,

v.
THE CATHOL I C DI OCESE OF ELPASO and MSGR. THOMAS ROWL AND, Appellee s. § § § § § § No. 08-09-00283- CV

Appea l from County Court at L aw No. 3 of El Paso County , Texas (TC # 2006-2747)

O P I N I O N

J ohn Doe, a former altar boy , filed suit ag ainst Msgr

. Thomas Rowland, the supervisory priest, and The Catholic Diocese of El Paso. The trial court g rante d summary judgme nt in favor of
the Appellee s. Be cause Doe’ s cause s of ac tions are ba rre d by limit ations, we aff

irm the judgme nt
of the trial c ourt.

F ACTUAL BACK GR OUND

J ohn Doe was born on J anuar y 4, 1948. When he was approximately six teen y ear s of ag e, 1

he was sexually abused by Fa ther Hay

. Three incidents occur red during the summer of 1963 or 1964
while Doe serve d as an altar boy at Our L ady of the L ight, a parish within the Diocese

. At that time, Msgr

. Rowland was the head priest at the churc h. Fa ther Hay was not reg ularly assig ned to the 2

churc h, but he occ asionally filled in and g ave ma ss on Sunday s.

D i s c r e p a n c i e s e x i s t a s t o w h e t h e r D o e w a s t h i r t e e n o r s i x t e e n y e a r s o l d a n d t h e t i m e i n q u e s t i o n

. 1

I n t h e r e c o r d , t h e s p e l l i n g o f t h e m o n s i g n o r ’ s n a m e a p p e a r s a s b o t h “ R o w l a n d ” a n d “ R o l a n d

. ” 2The Incidents

One Sunday afte r Fa ther Hay serve d the five o’cloc k mass, he invited Doe and two other altar boy s to g et hamburg ers at a local restaur ant. After picking up the food, Fa ther Hay took the boy s to
his apar tment wher e they could watch television. He then f illed the bathtub with water and asked
the boy s to take off their clothes and “come swimming.” The boy s complied. Fa ther Hay joined the boy s in the tub and beg an splashing and play ing with them. At some point during the horseplay , Fa ther Hay forc ed Doe to stand up, shoved him ag ainst the wall, and anally penetr ated him while the
other boy s watche d. After Fa ther Hay finished, Doe climbed out a nd put on his clothes. H e sat in
the other room, try

ing to focus on the television, but throug h the open door, he saw Fa ther Hay perf orm oral sex on the other two boy s. Eventually Fa t h er Ha y g ave the three a ride back to the
churc h parking lot.

A few wee ks later, the boy s ag ain serve d five o’cloc k Sunday mass with Fa ther Hay

. Once more, Father Hay took them to g et hamb urg ers and then back to the apartment. This time, Fa ther Hay perf ormed oral sex on Doe and penetr ated the other two boy s. The third and final incident also

occurre d o n a Sunday afte r five o’cloc k mass. This time, Doe rema ined clothed and watche d
television in the living room, but witnessed the two other boy s naked in the bathtub with Fa ther Hay

. There afte r, Doe stopped serving mass with Fathe r Ha y
. Doe initially kept quiet about the first incident of sexual abuse. He knew it was wrong when it happened, but he was c onfused a nd felt as thoug h it might have be en his fault. Q. B ut y ou knew it was w rong and y ou didn’t tell any body ? A. No, sir. I

take that ba ck, sir. W hen that happene d, there was a space , and I

did tell -- me and the other alter [si c] boy

. I t o l d h im, You know what, we should tell Fa ther Roland what happene d. And he said, No. And I said, Yes. We had to -- we had mass on Wednesday , and Fa ther Roland was there

. So when we we re i n the
rec tory , I asked him, Fa ther Roland, afte r mass, can we talk to y ou? He say s, Yea h,okay

.

When the mass was over, we talked to him. And he said, What’s g oing on? And we asked him, F ather Roland, something happene d to us with Fa ther Hay

. He did sex with us. He g ot, like, ag g rava ted and told me, You kids, y ou’re g oing to be quiet or y ou’re g oing to g et y ourselves in hot wa ter. Af ter that I said, For g et it.
After the first incident, Doe was afr aid, but he went with Fa ther Hay a second time beca use he was hung ry and confuse d. He also said he was afr aid of Fa ther Hay beca use “[h] e told me he was God.”

Doe’ s Personal Backgroun d

Doe was raised in the Catholic Church. Hi s fa t h er wa s a very strict disciplinarian who routinely beat Doe wit h a belt. Doe wa s about eleve n y ear s old when he be g an ser ving a s an altar boy . He c ontinued to serve until he wa s draf ted into the Army

. During his milit ary service , Doe rece ived t he S oldier of the Y ear Awar d. I n 1971, he was honorably discharg ed and went into the rese rves with the Army National Guar d. I n J une 1974, Doe

was ag ain honorably discharg ed. He returne d to the church l o o k ing for Fa ther Hay in order to 3

confr ont him and “g et eve n.” 4

Doe ultimately left the Catholic Church and beca me a member of the Pentecostal Church.

He marrie d and has raised his children in the Pentecostal faith. His mother passed awa y in 1994 or
1995 and his fathe r died a round 1996. Doe never

told either one of

them about the abuse beca use
he feare d his fathe r would beat him. And he never repor ted i t to the pol ice because he w as afr aid it would end up in the newspa per a nd he wa s embarr assed.

T h e r e a r e s e v e r a l r e f

e r e n c e s i n t h e d e p o s i t i o n t o t h e f a c t t h a t F a t h e r H a y i s n o l o n g e r a l i v e , b u t i t i s u n c l e a r 3

w h e n h e d i e d

.

D o e t o l d o n e o f

t h e e x p e r t w i t n e s s e s , D r

. W i l l i a m F o o t e , t h a t h e “ w a n t e d t o g o a n d s e e i f I c o u l d h i t [ F a t h e r 4 H a y ] w i t h a b a s e b a l l b a t

. I c o u l d n o t

. I w a s k i n d o f s m a l l

. I t h o u g h t I w a s q u e e r

. W h e n p e o p l e w o u l d m a k e f u n o f o n e ( a g a y p e r s o n )

- i f t h e y k n e w w h a t h a d h a p p e n e d , t h e y w o u l d m a k e f u n o f m e

. T h i s i s w h y a l l t h i s t i m e n o o n e k n o w s
a b o u t i t

. ”Sometime afte r his mother’s death, Doe soug ht medical help for depre ssion from a civilian

psy chiatrist, Dr. Patel, who helped him obtain Social Security disability benef its, Veter an’s
Administration Be nefits, and acc ess to VA medical car e. The visit to Dr. Patel was the first time

Doe s o u gh t trea tment for any psy chiatric or psy cholog ical problems. Acc ording to Doe’ s employ ment rec ords, he rec eived his last pay chec k in May 1996, at which point he “just quit. I could
not ha ndle it a ny more. I was g etting depre ssion a nd stuff like this.” He has not r eturne d to w ork.

P ROCEDURAL BACK GR OUND

Doe filed his orig inal petition in J une 2006, alleg ing that Fa ther Hay had committed torts of
assault and battery , intentional infliction of emotional distress, brea ch of fiduciar y duty , and

neg lige nce. He alleg ed neg lige nce and vicar ious liability ag ainst the Diocese and neg lige nce, brea ch
of fiduciar

y duty , and intentional infliction o f em o t i o n al distress ag ainst Msgr

. Rowland. The
Diocese and Msgr

. Row l an d filed g ener al denials and asser ted various aff

irmative defe nses, including limitations. There afte r, both parties f iled hy brid motions for summary judgme nt.

Doe filed response s to the motions for summary judgme nt and amende d his petition. Wit h

reg ard to Msgr

. Rowland, he alleg ed neg lige nce, brea ch of fiduciar y duty , and intentional infliction of emotional distress. With respect to his neg lige nce c laims, Doe alleg es five spe cific a cts.• failing to report the se x ual abuse to Bishop despite the D iocese ’s policy to do so; • failing to report the se x ual abuse to the authorities;

• fra udulently conce aling the tortious conduct of Fa ther Hay by misrepre senting that if Doe went for war d with his alleg ations, he would suffe r neg ative conse quence s;

• eng ag ing in a

cover -up to avoid chur ch ac countability and neg ative publicity ; and • failing to inform Doe’ s pare nts that Fathe r Ha y was a “sexual threat to their c hild.” Additionally , the amende d petition alleg ed claims for vicar ious liability and neg lige nce

ag ainst the Diocese

. Doe claimed the Diocese is vicar iously liable for the conduct of Msgr

. Rowland
beca use the latter was acting within the course and scope of h i s employ ment and beca

use the
Diocese , as employ er and principal, ai d ed i n the commission of the torts. As to neg lige nce, Doe alleg ed:

• neg lige nt rec ruiting, hiring , and super vision of priests; • failing to inform pare nts that certa in priests were sexual threats;

• ignor ing war

nings from medical profe ssionals even within the Catholic Church that cer tain priests wer e potentially

sexually dang erous to childre n;

• misrepre senting fac ts to victims who reque sted information about such priests in order to fra udulently conce al the Dioce se’s own ne g lige nce;

• failing to aler

t parishi o n er s, previous parishes and the surrounding communities wher e abusive seminarians, deac ons, and priests had serve d that they were exposed to known or suspected c hild molesters; • ignor ing w arning s from other me mbers of the clerg y who believe d that such priests we re threa ts to children;

• failing to repor

t the crimes committed by priests to law enfor ceme nt officia ls and obstructing or interfe ring with la w enfor ceme nt inve stiga

tions conce rning abusive priests; • making decisions re vealing the intere sts of the abusive pr iests and the Church’ s desire to avoid sca ndal, wer e vastly

superior to the inter ests of the victims; • using the churc h’s influenc e to alter the out come of the criminal lega l proce ss relating topriests who had be en eng ag ing in illeg al sexual acts and c onspiring to “ spirit” such priests

out of the state or country so that the churc h could avoid liability and acc ountability to civil authorities and their victims an d t h e churc h could “re cy cle [t he priests] back into active minist ry elsewhe re;”

• fostering an environment and culture wher e abuse of children could flourish and in which it was clea

rly understood that there was no corpor ate acc ountability for criminal acts toward children;” and • failing to enac t policies and proc edure s to prevent suc h sexual abuse by priests.

Doe claimed t h e ap p l icable statute of limit ations was tolled beca use of “psy cholog ical

coer cion

. . . constituting duress,” equitable estoppel, and quasi estoppel. Finally , he contende d that

T ex as Practice and R emedies Code Section 16.001 tolled limit ations beca use he was emotion al l y
and mentally incapa citated and of unsound mind at the time the cause s of action acc rued. On appea l,
the only issues befor e us are whether duress, unsound mind, or equitable estoppel opera te to defe at
limit ations.

THE E VIDENCE

Doe tender ed his own deposition; a paper written by Fa ther Thomas Doy le and Dr. Marianne

Be nkert on the eff

ect of relig ious duress on victims of cler g y sexual abuse; an aff idavit, curr iculum vitae, and rep o rt o f Fa t h er Doy le; an affidavit by Dr. Benke rt; and a repor t by Dr. W illiam Foote,
Ph.D. Appellee s objected to por tions of Doy le’s aff

idavit, c urriculum vitae, and repor t; the article written by

Doy le and Dr . Be nkert; Dr. B enker t’s aff idavit; and Dr. F oote’s re port. 5

T h e D i o c e s e c o m p l a i n e d t h a t b e c a u s e F a t h e r D o y l e i s n e i t h e r a p s y c h o l o g i s t n o r a p s y c h i a t r i s t , h e i s n o t 5
q u a l i f i e d t o o p i n e a s t o t h e p s y c h o l o g i c a l c o n s e q u e n c e s o f r e l i g i o u s d u r e s s

. T h e D i o c e s e a l s o o b j e c t e d t o h i s r e p o r t a s h e a r s a y
. M s g r

. R o w l a n d o b j e c t e d t o t h e r e p o r t b e c a u s e i t w a s b a s e d o n c a n o n l a w a s o p p o s e d t o s t a t e l a w
. A s f o r D r

. B e n k e r t ’ s a f

f i d a v i t , t h e D i o c e s e o b j e c t e d t h a t h e r o p i n i o n s f a i l e d t h e D a u b e r t s t a n d a r d a n d a s k e d t h a t h e r a f f i d a v i t b e s t r i c k e n “ a s t o t h e p s y c h o l o g i c a l i m p l i c a t i o n s o f r e l i g i o u s d i s t r e s s

. ” B o t h d e f e n d a n t s o b j e c t e d t o D r

. F o o t e ’ s r e p o r t
a s h e a r s a y
.THE H EARING S

Procee dings Before Judge Alvarez
This case was orig inally hear d by J udg e J avier Alvare z. On J anuar y 26, 2009, he g rante d via
letter the Diocese ’s motion for summary judgme nt on limit ations only

. T h re e d ay s later, the
defe ndants eac h filed their objections and motions to strike Doe’ s summary judgme nt evidenc e. On

Fe bruar y 2, J udg e Alvare z sustained those objections and, v i a e-ma il, g rante d Msgr

. Rowland’s motion for summary

judgme nt on limi tations. All of the fore g oing w as done w ithout a hear ing.

On Fe bruar

y 26, Doe filed a motion for rec onsideration. The next day , J udg e Alvare z held

a hear ing on the defe ndants’ motion for entry of final judgme nt. Upon Doe’ s reque st, J udg e Alvare z
allowed him to file a response to the expert witness objections. On Marc h 3, J udg e Alvare z issued

an order finding that live t es t i mony of experts was unnece ssary but allowing Doe two wee ks to
submit aff

idavits of its experts demonstrating admissibili ty standards under Rule 702. Meanw hile,

a separ ate order was issued on March 1 1 s u s t ai n ing both defe ndants’ objections to Dr. Foote’ s

repor t. Doe filed his response on Marc h 1 3 addressing the qualifica tions of Fa ther Doy le and 6

Dr. Be nkert to rende r expert opinions but the response did not addre ss Dr. Foote’ s repor t. On Marc h
24, J udg e Alvare z signe d an order g ranting summary j u d gm en t and an order sustaining the
defe ndants’ objections to Dr. Be nkert and Fa ther Doy le. Neither of these order s ref ere nces Dr.

Foote.

Doe then filed a motion to rec use J udg e Alvare z and a motion for a new trial. J udg e Alvare z voluntarily rec used hi mself and Reg ional Admi n i s t ra t i v e J udg e S teve Ables appointed him self to preside ove r the c ase.

A l t h o u g h t h e o r d e r w a s n o t f i l e d u n t i l M a r c h 1 1 , o n F e b r u a r y 4 , J u d g e A l v a r e z s e n t a l e t t e r s u s t a i n i n g 6 M s g r

. R o w l a n d ’ s o b j e c t i o n s t o D r

. F o o t e ’ s r e p o r t a n d a s k i n g c o u n s e l t o p r e p a r e a n o r d e r c o n s i s t e n t w i t h h i s r u l i n g

.Procee dings Before Judge Ables

On M ay 1 5 , J udg e Ables denied Doe’ s motion for a new trial but g rante d his motion for

rec onsideration. He held a hear ing on J une 17 to addre ss the defe ndants’ objections to Fa ther Doy le 7

and Dr. Be nkert. I n J udg e Ab l es ’ o wn words, the purpose of hear ing was t o deter mine, “whe ther

or not their methodology is appropr iate, whether or not they ’re reliable and we should consider their testimony .” Both Doy le and Be nkert testified at t he hearing and J udg e Able s ru l ed t h e testimony

was admissible. Following a second hear ing limit ed to arg uments of counsel, J udg e Ables g rante d
both motions for summary judgme nt. This appea l follows. Doe complains that summary judgme nt

was improper bec au s e h e ra ised g enuine issues of materia l fac t as to whether his claims are time
barr ed and as to the alleg ed neg lige nce of the Diocese and Msgr

. Rowland. Be cause we find I ssue One dispositive of the c ase, w e nee d not addre ss I ssue Two.

STANDARD OF REVIEW
The standard of revie w for a traditional summary judgme nt asks whether the movant car ried
the burde n of showing that there is no ge nuine issue of materia l f act such that judgme nt should be

g rante d as a matter of law. See American Tobacco Co., Inc. v. Grinnell , 951 S.W .2d 420, 425 (Tex. 1997). Summary judgme nt is proper if the defe ndant disproves at least one element of eac h of the plaintiff’s causes of ac tion or establishes all elements of an affirmative defense to eac h claim. D.

Housto n , In c. v. L ove , 92 S.W .3d 450, 454 (Tex. 2002); Shah v. Moss , 67 S.W .3d 836, 842 (Tex. 2001). Once the movant establishes a rig ht to judgme nt as a matter of law, the burden shifts to the

non-movant to pr oduce evidenc e raising a g enuine issue of materia l fac t. City of Houston v. Clear

D o e ’ s m o t i o n f

o r r e c o n s i d e r a t i o n i n c l u d e d a s p e c i f i c r e q u e s t t h a t t h e c o u r t r e c o n s i d e r J u d g e A l v a r e z ’ r u l i n g 7

o n D r

. F o o t e ’ s r e p o r t

. T h e p a r t i e s d i s a g r e e a s t o w h e t h e r J u d g e A b l e s i n t e n d e d h i s o r d e r v a c a t i n g “ p r i o r r u l i n g s b y t h e c o u r t ” t o i n c l u d e J u d g e A l v a r e z ’ r u l i n g a s t o D r

. F o o t e

. I n r e a d i n g t h e p l a i n l a n g u a g e o f t h e o r d e r i t a p p e a r s t o v a c a t e
a l l p r i o r r u l i n g s w h i c h w o u l d i n c l u d e t h e o r d e r s u s t a i n i n g t h e d e f e n d a n t s ’ o b j e c t i o n s

.Creek B asin Authorit y , 589 S.W .2d 671, 678-79 (Te x . 1979).

I n deciding whether there is a disputed materia l fac t issue prec luding summary judgme nt, we
take a s true all competent evidenc e favor able to the non-movant, and we indulge ever y rea sonable
infere nce and resolve any doubts in the non-movant’s favor

. Southwestern Elec. Po we r Co. v. Grant , 73 S.W .3d 211, 215 (Tex. 2002), citing Scienc e Spectrum, Inc. v. Martinez , 941 S.W .2d 910, 911 (Tex. 1997). Evidence favor ing the movant’s position will not be consid er ed unless it is

uncontra dicted. Great Am. Reserv e Ins. Co. v. San Antonio Plumbing Supply Co. , 391 S.W .2d 41, 47 (Tex. 1965).

I n the case of an affirmative defense such as limit atio n s , the m ovant m ust establish all the
elements of an aff

irmative defe nse as a matter of law. City of Houston , 589 S.W .2d at 678; Velsicol
Chemical Corp. v. W

inograd , 956 S.W .2d 529, 530 (Tex. 1997). I f the plaintiff’s pleading s do not
aff irmatively show that the limit ations period has run, the movant has the burden of proving that the suit is barred by limit ations as a matter of law. Gibson v. John D . Campbell and Co. , 624 S.W .2d 728, 731 (Tex.App.--F ort Worth 1981, no writ).
The Texas Rules of Civil Procedur e also permit a party to move for a no-evide nce summary judgme nt “without prese nting summary judgme nt evidence ,” but they require the moving party to
“state the elements as to which there is no evidenc e.” T E X .R.C I V .P. 166a(i); Aguilar v. Morales , 162

S.W .3d 825, 834 (Tex.App.--El Paso 2005, pet. denied)

. The burden then shifts to the non-movant

to produce summary judgm en t ev idence raising a g enuine issue of materia l fac t reg arding eac h
element c halleng ed in the motion. Aguilar , 162 S.W .3d at 834.

A no-evide nce motion for summary judgme nt is essentially a pretria l dir ecte d verdic t, a nd

we apply the same leg al sufficie ncy standard of revie w. King Ranch, Inc. v. Chapman , 118 S.W .3d
742, 750-51 (Tex. 2003), cert. denied , 541 U.S. 1030, 124 S.Ct

. 2097, 158 L .Ed.2d 711 (2004). Weview the evidenc e in the light most favor able to the non-movant, and we must disreg ard all contra ry
evidenc e and infere nces. Id

. at 751. A g enuin e i s s u e of materia l fac t is raised if the non-movant produce s more than a s cintilla of evidenc e reg arding the challeng ed element. Id

. There is not a
scintilla of evidenc e whe n the evidenc e is so wea k as to do no more than c rea te a mer e surmise or suspicion of materia l fac t. Ianni v. L o r a m Ma i n t en a nce of W ay, Inc. , 16 S.W .3d 508, 513 (Tex.App.--El Paso 2000, pet. denied)

. Evidence that fails to constitute more than a mere scintilla is, in lega l effe ct, no evidenc e at a ll. Lozano v. Lozano , 52 S.W .3d 141, 148 (Tex. 2001).

STATUT ES O F LIMITATIONS

I n I ssue One, D oe conte nds a g enuine issue of materia l fac t exi sts as to whether his c laims

are barr ed by limit ations. First, we addre ss his arg ument that duress applies to toll t h e s t at u t e o f
limit ations. Next, we consider his conte ntion that the doctrine of unsound mind tolls l imitations

. Finally , we will addre ss his cl ai m that a fac t issue exis ts as to whether the doctrine of equitable estoppel applies, pr ecluding Appellee s from asse rting limit ations as a de fense

. A cause of action g ener ally acc rues a t the time w hen fac ts c ome into e x istence authorizing

a claimant to seek a judicial reme dy

. Murray v. San Jacinto Agenc y, Inc. , 800 S.W .2d 8 2 6 , 8 2 8 (Tex. 1990). I n Texas, a plaintiff’ s ca u s e of action acc rues, and the applicable limit ations period

starts to run, “whe n a wrong ful act ca u s es some leg al injury , even if the fac t of injury is not
discover ed until later, and even if all resulting damag es have not y et occur red.” S.V. v. R.V. , 933

S.W .2d 1, 4 (Tex. 1996)

. This is true even in se x ual abuse case s. See id. at 22. Howeve r, when a plaintiff is under eig hteen y ear s of ag e at the time an injury occur s, he is under a leg al disability for
limit ations purposes. See T E X .C I V .P R A C .&R E M .C O D E AN N

. § 16.001(a) (West 2002). I n such case s , claims for i n

j u ri es suffe red during childhood are deeme d to acc rue on the plaintiff’s eig hteenth birthday

. See id . at § 16.001(b).The deter mination of when a cause of action acc rues is a question of law. Moreno v. Sterling Drug, Inc. , 787 S.W .2d 348, 3 5 1 (Tex. 1990). Her e, Doe’ s claims include neg lige nce, brea ch of
fiduciar y duty , and intentional infliction of emotional distress ag ainst Msgr

. Rowland and vicar ious liability and neg lige nce ag ainst the Diocese

. Ordinar ily the t wo -y ea r persona l injury statute of
limit ations applies to neg lige nce and intentional infliction of emotional distress claims, and claims
for brea ch of fiduciar

y duty are g overne d by a four- y ear statute of limit ations. See T E X .C I V .P R A C .&

R E M .C O D E AN N

. §§ 16.003 (a ); 16.004(a) (5)( West 2002); see T E X .C I V .P R A C .&R E M .C O D E A N N

. §16.051 (West 2008); Snyder v. Eanes Indepe ndent School Dist. , 860 S.W .2d 692, 699 (Tex.App.--
Austin 1993, wri t d en i ed ). Howeve r, a five-y ear statute of limit ations applies wher e the plaintiff bring s suit for p er s o n al injury cause d by sexual assault or ag g rava ted sexual assault. See 8

T E X .P R A C .&R

E M .C O D E AN N . §16.0045(a)

. I t is undisputed that beca use Doe was a minor, his cause of action di d not acc rue until his eig hteenth birthday

on J anuar

y 4, 1966. See T E X .P R A C .&R E M .C O D E AN N

. §16.001(a) (1). He did

not file suit until J une 2006, more than forty y ear s later. Reg ardle ss of which limit ations provision applies, abse nt an applica ble tolling provision, limitations ran on or befor e January

4, 1971.

DURESS
The first question is whether a g enuine issue of materia l f act exis ts w ith r espec t to whether

O t h e r c o u r t s h a v e a p p l i e d t h i s f i v e - y e a r s t a t u t e o f l i m i t a t i o n s p e r i o d t o c l a i m s o f n e g l i g e n c e a s w e l l a s c l a i m s 8

o f v i c a r i o u s l i a b i l i t y b a s e d o n t h e c o m m i s s i o n o f t h e i n t e n t i o n a l t o r t

. F o r e x a m p l e , i n S t e p h a n i e M

. v

. C o

p t i c O r t h o d o x P a t r i a r c h a t e D i o c e s e o

f S o u t h e r n U

. S

. , N o

. 1 4

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- C V , 2 0 1 1 W L 1 7 6 1 3 5 3 , a t * 1 ( T e x
. A p p

. - - H o u s t o n [ 1 4 t h D i s t

. ] M a r

. 1 7 , 2 0 1 1 , n o p e t

. ) , t h e c o u r t a d d r e s s e d w h e t h e r S e c t i o n 1 6

. 0 0 4 5 s h o u l d b e c o n s t r u e d t o a p p l y t o c l a i m s a g a i n s t d e f e n d a n t s w h o d i d n o t p h y s i c a l l y a s s a u l t t h e p l a i n t i f f b u t w h o s e n e g l i g e n c e p r o x i m a t e l y c a u s e d t h e s e x u a l a s s a u l t

. S t e p h a n i e M

. , 2 0 1 1 W L 1 7 6 1 3 5 3 , a t * 2

. T h e r e , a p a r i s h i o n e r a p p e a l e d t h e t r i a l c o u r t ’ s o r d e r g r a n t i n g s u m m a r y j u d g m e n t
o n t h e p a r i s h i o n e r ’ s c l a i m s a l l e g i n g n e g l i g e n c e i n a l l o w i n g a p r i e s t t o s e x u a l l y a s s a u l t h e r

. S t e p h a n i e M

. , 2 0 1 1 W L 1 7 6 1 3 5 3 , a t * 1

. T h e o r d e r w a s p r e d i c a t e d u p o n t h e t w o - y e a r n e g l i g e n c e s t a t u t e r a t h e r t h a n t h e f i v e - y e a r s t a t u t e
a p p l i c a b l e t o c e r t a i n s e x u a l a s s a u l t c a s e s

. I d

. T h e H o u s t o n C o u r t o f A p p e a l s r e v e r s e d a n d r e m a n d e d , h o l d i n g t h a t b e c a u s e t h e n e g l i g e n c e a c t i o n a r o s e o u t o f t h e i n t e n t i o n a l s e x u a l a s s a u l t a l l e g e d l y c o m m i t t e d b y t h e p r i e s t , t h e f i v e - y e a r s t a t u t e o f l i m i t a t i o n s a p p l i e d

. I d

. ; s e e a l s o D o e v

. C a t h o l i c S o c i e t y o f R e l i g i o u s a n d L i t e r a r y E d u c

. , N o

. H

- 0 9

- 1 0 5 9 , 2 0 1 0 W L 3 4 5 9 2 6 , a t * 1 6 ( S

. D

. T e x
. J a n

. 2 2 , 2 0 1 0 ) ( f i v e - y e a r l i m i t a t i o n s p e r i o d m a y a p p l y t o o t h e r c l a i m s a s w e l l , p a r t i c u l a r l y t h e d i r e c t l i a b i l i t y c l a i m s t h a t t h e d e f e n d a n t s ’ n e g l i g e n c e a l l o w e d t h e a l l e g e d a b u s e t o o c c u r )

.the threa ts made by Msgr

. Rowland and Fa ther Hay , d u ri n g and immediately afte r the sexual

assaults, constitute duress suff icient to preve nt Doe fr om timely filing his suit.

Doe submitt ed summary judgme nt evidenc e from Fa ther Doy le, Dr. Be nkert, and Dr. Foote.
Both Fa ther Doy

le and Dr. Be nkert have long studied the conce pt of duress in a relig ious c ontext

. Tog ether the two published an article on the psy cholog ical impact on victims of cler g y sexual abuse. They explained the conce pt of relig ious duress as simil ar to ordinary duress in that it involves some improper conduct which is intended to, and does, interfe re with a person’ s fre e will and judgme nt.

Howeve r, relig ious duress involves an internal constraint or threa t experience d by people due to their
beliefs.

Acc ording to Dr. Be nkert, she was asked to rende r an opinion conce rning the potential role
of relig ious duress in J ohn Doe’ s inability to come forwa rd reg arding his sexual abuse prior to 2006
when he filed his lawsuit. Although she never met with or persona lly evalua ted Doe, she revie wed

sever al of his persona l rec ords befor e prepa ring her re p o rt

. Dr. Be nkert rende red the following opinions:

All the elements of Religious Dure ss are manifested in the case of [Doe]. He was an adolesc ent from a pious and relig ious Roman Catholic family that viewed the priest
as above repr oac h --completely trustworthy

. They allowed their son to spend time with the priests at their parish chur ch whe re he serve d as an a ltar boy sever al times
a we ek. [Doe] trusted the priests of the pa rish and ini tially trusted Fr. Hay until he sexually abused and betra y ed him

. He then beca

me fe arf ul. When he repor

ted the abuse to the pastor who s till merited his confi d en ce h e was told to be qu iet or you will get yourself into hot water

. [D o e] felt he had nowher e to turn and he was overw helmed and constraine d out o f mo r ta l f e a r to f o ll o w Fr

. Rowland’s admonition. [Doe] had been warned and threa tened by the priest who he ld the power of heaven and hell in his hands not to tell any one about the a buse. This war

ning car ried with it not simply the power of a person, but the validation of a cler ical culture- -a rea lity too power ful to resist. The resulting fea r, awe , and respe ct of all Catholic cler g y with their specia l relig ious and social st at u s wi thin his Catholic experience makes relig ious duress possible and ef fec tive. [Emphasis i n orig inal].

I t is my p rofe ssional opinion that [Doe] is the victim of Religious Dure ss. I n myexperience , i t takes many y ear s of thera py and/or persona lity g rowth and development to overc o me the constraints and fea r that keep such a person from coming forwa

rd to acknow ledg e their sexual abuse. Most men and women who wer e abused as minors by priests can never come forwa rd publicly

. I t took many y ear s of profe ssional he lp be fore [Doe] could even acknow ledg e the a buse to a ther apist. I t took sever al more y ear s befor e he was psy cholog ically able to acknow ledg e it publicly . These a

re a ll effe cts of Relig ious Duress. 9

Dr. Foote, a fore nsic and clinical psy cholog ist, evalua ted Doe at t he reque st of Doe’ s attorney for the purpose of deter mining “the prese nce of

emotional problems .

. . which may have
been rela ted to events which occur red when he was a child.” Acc ording to Dr. Foote’ s evalua tion: [Doe’s voluntary return to the apar tment afte r the first instance of abuse] started for him ‘the my

th of complicity ,’ in whi ch h e b el i eved himself to be an active
acc omplice in his ab u s e. T h e sense that he is complicit in his own abuse has aug mented his sense of shame and has made it so shameful for him that he has never even told his wife of some 35 y ear s about his sexual abuse experience

. Even though he has been in trea tment with mental health profe ssionals, he had not disclosed this abuse to them until 2004.
This case is complicated by [Doe’s] history of being raised in a home in which there was sig nificant domestic violenc e.

. . . This history of abuse made him eve n more vulnera ble to sexual exploi tation by a priest. His expectation was that the priest would be a benig n adult who would take car e of him and trea t him with respe ct rathe r than making him an object of se x ual abuse

. At the time o f t h is evalua tion, [Doe] shows continuing evidenc e of a Major Depr essive Disorder , which first beca me evident in about 1 9 9 7

. [ Do e] dates this
emer g ence of depr ession to the death of his mother along with his memories of his abuse e x perie nces. I f one assumes that he was sexually abused by Fa ther Ha

y , it is
m y p ro fessional opinion that [Doe’s] reduc ed self imag e, constant conce rn about being homosex ual and other self-de prec atory ideas mark his depr ession as a result of this sex ual abuse

. I n ad dition, [Doe] shows some elements of a post-traumatic stress disor d er

. Although he would probably not meet the criter ia for full PTSD

. . . I f one assumes that his alleg ations of abuse by Fa ther Hay are true, the post-traumatic sy mptoms are , in my profe ssional opinion, causa lly rela ted to this experience of cler g y sexual abuse.
Next, Dr. Foote set out five fac tors leading to delay ed disclosure of the sexual abuse. First,

F a t h e r D o y l e ’ s r e p o r t d e t a i l s t h e h e i r a r c h y o f t h e C a t h o l i c C h u r c h a n d t h e d u t i e s o f e a c h o f t h e o f

f i c i a l s b u t 9 i t p r o v i d e s o n l y a b a c k g r o u n d o f D o e ’ s h i s t o r y a n d f a i l s t o p r o v i d e a n y r e l e v a n t a p p l i c a t i o n o f f a c t s

.Doe felt responsible for what happene d. His “self- blame” was incre ased by his fea r that his

p ar t i ci p at i o n meant he was homosex ual. Doe knew what Fa ther Hay did to him was wrong in a
moral sense. He attempted to preve nt it from happening ag ain by repor ting it to Msgr

. Rowland, but:
This repor

t resulted in his being told that he should tell no one. I f this event is true, the sole individual to whom this child beli ev ed he could repor t the abuse used his authority to instil l g rea ter fea r into this child and to silence him. [Doe] rec alls some deg ree of re lief that the super vising prie st did not t ell his father about the re port.

Four th, Doe’ s childhood fea

r o f p u n i s h m en t from his fathe r, wer e he to tell him about the abuse

preve nted h i m from coming forwa rd. Finally , “bec ause his shame and fea r preve nted him from

repor ting his abusive experience to medical and mental hea l t h p ro fessionals, his problems wer e variously diag nosed as having other etiologie s, and trea ted acc ording ly

. This failure to pair his abuse
wit h t h e re s ulting post-traumatic and depre ssive sy mptoms also eff

ectively preve nted him from pairing a tort with its damag es. Without that pairing , seeking leg al re medies for his distre ss made

no sense.” Applicable Law
Gene rally , duress is any coer cion, whethe r m en tal, phy sical, or otherwise, which cause s
another person to act contrary to his or her own free will or to submit to a si tuation or a condition

ag ainst his or her own volition or interest. Pierce v. E s t a t e o f Have rlah , 428 S.W .2d 422, 425 (Tex.Civ.App.--Ty ler 1968, writ ref ’d n.r.e.)

. Stated differ ently , duress is the depr i v ation by one

person of another by putting the other in f ear , in or der to obta in some valuable advanta g e from the
other. Gray v. Freem an , 37 Tex.Ci v.App. 556, 84 S.W

. 1105, 1107-08 (1905). To constitute duress,
the t h re at m u s t be of such char acte r to overc ome the willpower of a person and cause them to do
what he or

she otherw ise would not.

I n actions based on duress, the opera tion of the statute of limit ations is tolled until the timethat duress cease s to exis t. See Pierce , 428 S

. W

. 2 d at 422; McNeil v. Lovelace , 529 S.W .2d 633,

636-37 (Tex.Civ.App.--For t Worth 1975, no writ). Upon remova l of the duress, the statute beg ins

to run. McNeil , 529 S.W .2d at 637.
The question of what constitutes duress is a matter of law. Pierce , 428 S.W .2d at 425.

Howeve r, the question of whether duress exis ts in a particula r situation is g ener ally a question of fac t dependa nt upon all the circ umstances a nd the mental ef

fec t on the party

claiming duress. Id

. Application of Law to Facts

To def eat summary judgme nt based on duress, Doe must demonstrate by more than a scintilla
of evidenc e that the statements by Fa ther Hay or Msg r. Rowland depr ived him of his free will a nd judgme nt and that the dure ss consistently preve nted him from bring ing his c laim f rom the time he

rea ched eig hteen until he filed suit in J une 2006. Doe points to two improper threa ts which robbed
him of his a

bility to take leg al action: (1) Fa ther Hay ’s statements that he was the Son of God and
that ever y thing he touche d was sac red; a nd (2) Msg r. Rowland’s instructions to kee p quiet or Doe
would g et in trouble. Doe rea sons that these threa ts wer e made under the reve rential au thority
aff orded to priests in an eff

ort to make s u re he never pursued a claim. I n other words, the duress

occur red be cause of the e x ploitation of the priests’ authority

. Doe relies on the testimony of Fa ther Doy le and Dr. Be nkert. Ba sed on the expert repor ts, 1 0

D o e c o n t e n d s t h e e x p e r t t e s t i m o n y o f D o y l e a n d B e n k e r t , s t a n d i n g a l o n e , i s s u f f i c i e n t t o c r e a t e a f

a c t i s s u e 1 0

a s t o w h e t h e r d u r e s s t o l l e d l i m i t a t i o n s a n d p r o o f t h a t t h e t r i a l c o u r t e r r e d i n f i n d i n g h i s c l a i m s b a r r e d a s a m a t t e r o f l a w
. I n s u p p o r t o f t h e f

o r e g o i n g s t a t e m e n t , h e d i r e c t s u s t o D o e v

. G a r c i a , 5 F

. S u p p

. 2 d 7 6 7 , 7 7 0

- 7 1 ( D

. A r i z
. 1 9 9 8 ) a s

“ h o l d i n g t h a t d u r e s s b y h i g h s c h o o l v i c e p r i n c i p a l u p o n a s t u d e n t h e h a d s e x u a l l y a b u s e d d e f e a t e d s u m m a r y j u d g m e n t
o n a s t a t u t e o f

l i m i t a t i o n s d e f

e n s e

. ” W h i l e t h e q u o t e m a y c o r r e c t l y s t a t e t h e h o l d i n g , t h a t c a s e i s h i g h l y d i s t i n g u i s h a b l e
a n d h a r d l y f

a v o r a b l e t o D o e ’ s a r g u m e n t

. J a n e D o e b r o u g h t c l a i m s a g a i n s t h e r f o r m e r v i c e p r i n c i p a l , t h e s c h o o l d i s t r i c t , a n d t h e s c h o o l d i s t r i c t ’ s s u p e r i n t e n d e n t a r i s i n g f r o m a n a l l e g e d s e x u a l r e l a t i o n s h i p b e t w e e n D o e a n d h e r v i c e p r i n c i p a l

. D o e v

. G a r c i a , 5 F

. S u p p

. 2 d a t 7 6 9

- 7 0

. I n A r i z o n a , a s i n T e x a s , D o e ’ s c a u s e o f a c t i o n d i d n o t b e g i n t o a c c r u e u n t i l s h e r e a c h e d t h e a g e o f m a j o r i t y
. I d

. a t 7 7 0

. I n t h a t c a s e , t h e a p p l i c a b l e s t a t u t e o f l i m i t a t i o n s w a s t w o y e a r s a n d D o e d i d n ’ t b r i n g s u i t u n t i l t w o y e a r s a n d e l e v e n m o n t h s a f t e r s h e t u r n e d e i g h t e e n

. I d

. T h e v i c e p r i n c i p a l a n d t h e d i s t r i c t f i l e d m o t i o n s t o d i s m i s s c l a i m i n g t h a t D o e ’ s a c t i o n s w e r e t i m e b a r r e d

. I d

. a t 7 6 7

. T h e d i s t r i c t c o u r t r e f u s e d t o g r a n t t h e m o t i o n h o l d i n g t h a t
a l t h o u g h , i f u n c o n t r a d i c t e d , t h e e v i d e n c e a s t o t h e d a t e s o f t h e a b u s e , D o e r e a c h i n g m a j o r i t y a n d D o e f

i l i n g s u i t w o u l dDoe claims he suffe red a specific ty pe of duress identified as “re ligious duress.” He sug g ests that 1 1

d u re s s in a religious contex t is simil ar to ordinary duress but it involves “an internal constraint or
threa t experience d by people due to beliefs.” Acc ording to Doe, the constraint on a person’ s fre e will
that comes fr om relig ious duress is based on two e lements: (1) the objective o r g ener al level of Church teac hing which the individual experience s throug h various levels of relig ious e ducation, participa tion in relig ious rituals or liturg ies and living in a Catholic-base d culture, a nd (2) the direc t experience of the individual with priest s or bishops whose words or actions have ca u s ed t h e person to believe that the relig ious fig ure had power over

b a r h e r c l a i m s , D o e ’ s a l l e g a t i o n s w e r e s u f f i c i e n t t o r a i s e a q u e s t i o n o f m a t e r i a l f a c t a s t o w h e t h e r t h e v i c e - p r i n c i p a l ’ s
a c t i o n s c o n s t i t u t e d d u r e s s s u f f i c i e n t t o t o l l t h e a p p l i c a b l e l i m i t a t i o n s p e r i o d u n d e r A r i z o n a l a w
. I d

. T h e a p p e l l a t e c o u r t
a f f i r m e d t h i s d e c i s i o n

. I

d

. T h e l a w i n A r i z o n a , a s s t a t e d i n G a r c i a , i s s i m i l a r t o t h a t i n T e x a s w i t h r e s p e c t t o d u r e s s a s
a t o l l i n g s t a t u t e

. C o m p a r e D o e v

. G a r c i a , 5 F

. S u p p

. 2 d a t 7 7 0 ( “ [ I ] n o r d e r t o e s t a b l i s h d u r e s s , a p l a i n t i f f m u s t d o m o r e t h a n s i m p l y a l l e g e a s u b j e c t i v e f e a r t h a t r e t a l i a t i o n m i g h t o c c u r

. A p l a i n t i f f m u s t s h o w s o m e a c t o r t h r e a t b y t h e d e f e n d a n t t h a t p r e c l u d e d t h e e x e r c i s e o f h e r f r e e w i l l a n d j u d g m e n t a n d p r e v e n t e d h e r f r o m e x e r c i s i n g h e r l e g a l r i g h t s

. ” ) , w i t h P i e r c e , 4 2 8 S

. W

. 2 d a t 4 2 5 ( i n o r d e r t o e s t a b l i s h d u r e s s , a p l a i n t i f f m u s t d e m o n s t r a t e s o m e a c t o f c o e r c i o n , w h e t h e r
m e n t a l , p h y s i c a l , o r o t h e r w i s e , w h i c h c a u s e d h e r t o a c t c o n t r a r y t o h e r o w n f r e e w i l l o r t o s u b m i t t o a s i t u a t i o n o r a c o n d i t i o n a g a i n s t h e r o w n v o l i t i o n o r i n t e r e s t )

. I n t h e c a s e a t b a r , D o e w o u l d l i k e l y e n d t h e c o m p a r i s o n b e t w e e n h i s c a s e
a n d D o e v

. G a r c i a a f

t e r t h e a b o v e i n f

o r m a t i o n

. H o w e v e r , t h e f a c t s i n G a r c i a w h i c h t h e C o u r t e x p r e s s l y r e l i e d o n i n
r e a c h i n g i t s c o n c l u s i o n a r e c l e a r l y d i s t i n g u i s h a b l e

.

I n G a r c i a , D o e ’ s a f

f i d a v i t p r e s e n t e d m o r e t h a n a s u b j e c t i v e f e a r h e r v i c e - p r i n c i p a l w o u l d r e t a l i a t e a g a i n s t h e r s h o u l d s h e r e p o r t h i m w h e r e t h e a f f i d a v i t a l l e g e d t h e f

o l l o w i n g f

a c t s i n s u p p o r t o f t h e c l a i m e d d u r e s s : ( 1 ) h e r v i c e p r i n c i p a l g a v e h e r s p e c i a l a t t e n t i o n , g i f t s , m o n e y a n d e x c u s e d h e r f r o m c l a s s w h i c h d e v e l o p e d i n t o a s e x u a l r e l a t i o n s h i p l a s t i n g a p p r o x i m a t e l y f i v e y e a r s ; ( 2 ) d u r i n g t h e r e l a t i o n s h i p , h e r v i c e - p r i n c i p a l c o n t i n u a l l y t h r e a t e n e d t o k i l l h i m s e l f i f D o e r e p o r t e d h i m a n d t e s t i f i e d s h e t r u l y b e l i e v e d h e w o u l d h u r t h i m s e l f o r h e r i f s h e t o l d a n y o n e a b o u t t h e i r r e l a t i o n s h i p ; ( 3 ) t h e v i c e - p r i n c i p a l w a s h o t t e m p e r e d ; ( 4 ) h e r e p e a t e d l y s h o w e d D o e h i s h a n d g u n ; ( 5 ) h e w o u l d f o l l o w h e r , p u l l e d h e r o u t o f c l a s s t o v i s i t h i m , t e l e p h o n e d h e r t e l l i n g h e r t h a t h e k n e w w h a t t i m e s h e w o k e u p a n d w h e n s h e w e n t t o s l e e p ; ( 6 )
o n t w o o c c a s i o n s , h e a p p e a r e d o u t s i d e a n d t a p p e d o n h e r b e d r o o m w i n d o w ; ( 7 ) h e p a g e d h e r c o n s t a n t l y t o f i n d o u t w h e r e s h e w a s a n d w h o s h e w a s w i t h ; ( 8 ) o n c e D o e l e f t h i g h s c h o o l a n d h e l a c k e d t h e s a m e c o n t r o l o v e r h e r , h e t o l d h e r t h a t h e b e c a m e f

r i e n d s w i t h h e r b o y f

r i e n d t o k e e p t r a c k o f h e r ; a n d ( 9 ) a f t e r h e r b o y f

r i e n d d i e d i n h i s h o m e u n d e r “ m y s t e r i o u s c i r c u m s t a n c e s ” a n d h e ( t h e v i c e - p r i n c i p a l ) c a l l e d h e r a n d m a d e c o m m e n t s i m p l y i n g h e w a s s o m e h o w i n v o l v e d i n h e r b o y f r i e n d ’ s d e a t h

. I

d

. a t 7 7 0

- 7 1

. T h e r e l a t i o n s h i p w i t h h e r v i c e - p r i n c i p a l a n d t h e c o m m e n t s h e m a d e a b o u t h e r b o y f r i e n d ’ s d e a t h b o t h h a p p e n e d i n J a n u a r y 1 9 9 7 , a p p r o x i m a t e l y s i x m o n t h s a f t e r t h e s t a t u t e o f l i m i t a t i o n s e x p i r e d ( a n d t w o a n d a h a l f y e a r s a f t e r s h e t u r n e d e i g h t e e n )

. I d

. a t 7 7 1

. D o e f

i l e d s u i t a p p r o x i m a t e l y f o u r m o n t h s l a t e r

. H e r e , w e h a v e a s i n g l e s t a t e m e n t b y M s g r

. R o w l a n d a n d p r e s u m a b l y t w o i n s t a n c e s i n w h i c h F a t h e r H a y m a d e t h e s a m e s t a t e m e n t , e a c h o f w h i c h D o e a r g u e s i s s u f f i c i e n t t o t o l l t h e s t a t u t e o f l i m i t a t i o n s f o r o v e r f o r t y y e a r s

. W h i l e t h e p r i e s t s m a y h a v e h a d g r e a t c o n t r o l o v e r D o e w h i l e h e w a s a m i n o r a n d a n a l t a r b o y , a s t h e v i c e - p r i n c i p a l d i d i n G a r c i a , h e r e t h e r e i s n o e v i d e n c e o f a n y s t a t e m e n t s o r t h r e a t e n i n g b e h a v i o r a f t e r D o e r e a c h e d t h e a g e o f m a j o r i t y a n d
c e r t a i n l y n o t c o n t i n u o u s l y o v e r t h e p a s t f o r t y y e a r s

.
T h e D i o c e s e a s s e r t s t h a t “ r e l i g i o u s d u r e s s ” i s a c o n c e p t d e v e l o p e d b y D o e ’ s e x p e r t s a n d d o e s n o t c o n s t i t u t e 1 1 l e g a l d u r e s s

. T h e D i o c e s e f u r t h e r a r g u e s t h a t t h e r e i s n o e v i d e n c e t h e d u r e s s w a s c a u s e d b y t h e D i o c e s e , D o e ’ s e x p e r t s
w e r e n o t q u a l i f

i e d t o r e n d e r a n e x p e r t o p i n i o n o n t h e i s s u e , a n d D o e ’ s e x p e r t s ’ o p i n i o n s w e r e n o t s u p p o r t e d b y t h e e v i d e n c e

.them.

Doe points to the following fac ts in support of his relig ious duress claim. He was raised in

a devout Catholic fami ly

. His fathe r was very strict and deeply relig ious. Doe was an altar boy
which was a status honoring his family

. His family believed the Church’s teac hings that priests and bishops wer e superior, they had a duty to obey them, and that to disobey a cle rgy m em b er could
constitute a mortal sin. I n his brief, Doe also maintains that Catholic children are taug ht from an

ear ly ag e that cle rics ar e spec ial, unique, re moved, power ful and dese rving of def ere nce, a we, a nd unquestioned re spect. Doe is using this theory

of re ligious dure ss to crea te a f act issue a s to whether , beca use of
his view of the priests and his relig ious beliefs, the threa ts sufficie ntly deprive d him of his fre e will
there by tolling limit ations. Even if we assume that a g enuine iss u e o f m at eria l fac t exis ts with

respe ct to whether the threa ts made by Msgr

. Rowland are sufficie nt to meet the definition of duress,

Doe must still demonstrate that the threa ts wer e of such a continuous nature as to preve nt him from filing suit within the applicable limit ations period. See Pierce , 428 S.W .2d at 422. We find no such
evidenc e. Doe’ s alleg ation of a subjective fea r that some reta liation might occur based on his relig ious beliefs is insufficient to establish duress. See Smith v. Estate of Kelly , 343 N.J .Super. 480,

778 A.2d 1162, 1173 (N.J.S uper.A .D. 2001)(“ Dure ss may take the form of moral compulsion or

psy cholog ical pressure

. Yet, even moral com p u l s i on or psy cholog ical pressure are not wrong ful
unless they are ‘so oppressive under g iven circ umstances as to constrain one to do what his fre e will
would ref use.’” [I nterna l citations omitted.] ). Doe must not only demonstrate some act or threa t by Appellee s that preve nted him from exercising his leg al rig hts, but also that the threa tening behavior
continued on into hi s ma j o r i ty

. Doe failed to prese nt any evidenc e that the duress continued throug hout the forty y ear s it took him to file suit. Wit h respe ct to the threa t by Msgr

. Rowland, Doedescr ibes only one encounte r, which is insufficient to show the threa t was continuous in nature

. See

Pierce , 428 S.W .2d at 427. Simi larly , Doe had no contac t with Fa ther Hay afte r he stopped serving

mass with him. Doe left the churc h in 1972. After his fathe r’s death in 1 9 9 6, Doe would have logic ally overc ome the fea r of reta liation based on his fathe r’s relig ious beliefs. Doe offe rs no explanation as t o the duress he experience d betwee n his fathe r’s death and when he consulted the first attorney

in 2003, or filed hi s lawsuit in 2006, nor has he na med the eve nt that enabled him to

overc ome the duress he experience d. See Doe v. Holy See , 17 A.D.3d 799, 800, 793 N.Y.S.2d 571 (N.Y.A pp. 2005)(plaintiff’ s arg ument that the statute of limit ation s s h o uld be tolled based on a
doctrine of “re ligious duress” i s untenable bot h b ec ause he failed to show that the claimed duress
continued afte r he rea ched the ag e of majority and beca use our rec og nition of the doctrine, g rounded

in the teac hings of the Catho lic Church, would require us to venture into forbidden ecc lesiastical

terra in); see also Estate of Kelly , 778 A.2d at 117 5 (“ The question is what did defe ndants do to

preve nt plaintiff from asser ting that claim ag ainst them upon rea ching ag e eig hteen.

. . . The answe r is nothing.”) . We conclude the re is no g enuine issue of materia l fac t conce rning duress.

UNSOUND MIN D
The law provides that a person of unsound mind is under a leg al d i s ab i l i t y wh ich t olls the

statute of limit ations. See T E X .C I V .P R A C .&R E M .C O D E AN N

. § § 16.001, 16.003; see Grace v.
Colorit o , 4 S.W .3d 765, 769 (Tex.App.--Austin 1999, pet. de nied). He re, D oe arg ues a fac t issue
exis ts as to whether limit ations is tolled under Texas Pra ctice and Remedies Code, Section 16.001
“bec ause he was emotionally and mentally incapa ci t at ed and of an unsound mind to bring suit

ag ainst [t he Diocese and Rowland] at the time the cause s of action acc rued.” Texas Civil Practice
and Remedie s Code Section 16.001 provides in re levant par t: (a) For the purposes of this subchapte r, a person is under a leg al disability if theperson is:

. . . (2) of unsound mind. (b) I f a person entitled to bring a persona l action is under a leg al disability when the
cause of action acc rues, the time of the disability is not included i n a limit ations period.

T E X .C I V .P R A C .&R E M .C O D E AN N

. § 16.001. The pu rpose of Section 16.001(a) (2) is to protec t a person of unsound mind by insuring tha t a l egally disabled person’s rig ht to bring suit will not be

prec luded by a statute of limit ations, prior to remova l of the disability

. Ruiz v. Conoco, Inc. , 868

S.W .2d 752, 755 (Tex. 1993). The tolling provision applies to a person who suffe rs from an inability

to participa te in, contro l , o r u n derstand the prog ression and dispositi on of their lawsuit. Id

. Althoug h g e n e r a ll y speaking , persons of unsound mind and insane persons are sy nony mous, a person

may be of unsound mind without having been adjudicate d incompetent. Hargraves v. Armco Foods,

Inc. , 894 S.W .2d 546, 547 (Tex.App.--Austin 1995, no writ).
When the non-m o v an t asser ts a tolling statute (such as Section 16.001) in response to a
motion for summary judgme nt, the limit ations defe nse is not conclusively established un t i l t h e

movant neg ates the applicability of the tolling provisions. See Hargraves , 894 S.W .2d at 547. I n
other words, Doe must prove that he was of unsoun d mind during the rele vant time period. See

W agner v. Texas A & M University , 939 F.Supp. 1297, 1317-18 (S.D.Tex. 1996)(“ I t is the plaintiff’s
burden to show that he is of unsound mind and to demonstrate when such period of disability ended, if not ong oing.” ).

On appea l, the Diocese and Msgr

. Rowland eac h arg ue that the only evidenc e rele vant to this
issue is contained in the aff idavit of Dr. Charles Clark which conclude s that Doe was not of unsound
mind. The Dioce se also ar g ues that Doe’ s own experts do not support his contention beca use: (1)Dr. Be nkert’s aff idavit aff irmatively states Doe was not of unsound mind; and (2) Dr. Fo o t e’ s testimony fails to state Doe was of unsound mind.

Doe acknow ledg es that Dr. Be nkert’s aff idavit states that Doe is not of unsound mind. But
he counter s that her opinion rela tes to his prese nt condition and emphasizes that she did not state that
he was never of unsound mind. Do e al s o maintains that Dr. Foote’ s repor t direc tly addre ssed
whether Doe former ly suffe red from unsound mind and noted that he was unable to even repor t the
abuse until 2004. Fina lly , Doe r ecog nizes the opinions of Dr. Clark and Dr. Foote are in conflict,
but he contends that the contra diction only provides further support for his arg ument that the issue
of unsound mind cannot be r esolved a s a matter of law.
The unsound-min d exception tolls the gene ral statute of l imitations for two rea sons: first,

to protec t persons without acc ess to the courts, and second, to pro t ect persons who are unable to participa te i n, control, or understand the prog ression and dispositi on of t heir lawsuit. Ha r g r a ves , 894 S.W .2d at 548. To preve nt su m m ary judgme nt, the non-movant needs to produce specific
evidenc e that would enable the court to conclude that he did not have the mental capa city to pursue litigation for a definite period of time, or produce a fa ct -b as ed expert opinion to that eff ect. See

Grace , 4 S.W .3d at 769; Porter v. Charter Medic al Corp. , 957 F.Supp. 1427, 1438 (N.D.Te x
. 1997);

Freem an v. American Motorists Ins. Co. , 53 S.W .3d 710, 713 (Tex.App.--Houston [1st Dist.] 2001, no pet.).

On appea l, Doe’ s entire arg ument rests on Dr. Foote’ s repor t. Acc ording to Dr. Foote, a
number of f

actor s “combined to re sult in [ Doe’ s] i nability to go f orwa rd with this lit iga

tion.”
• Doe f elt responsible for

what happe ned;
• Doe f ear ed that his participa tion was a sig n he wa s homosex ual;
• the fe ar instilled in him by Msgr . Rowland afte r re porting the abuse ;• fea r of his fa ther; and

• fea r and shame which preve nted him from repor ting the abuse to medical and mental health profe ssionals.
The repor t fails to mention when this disability beg an and cer tainly does not addre ss whether

Doe was incapa citated at the t ime the cause of action acc rued. D oe testified that he had no issues
with depre ssion, conce ntration, or nightmar es until his mo th e r p a s s e d awa y in1996, some thirty y ear s
afte r the cause of action acc rued. Since Doe attained majority , he serve d in the Army and rec eived

awa rds for his service ; he worke d, including o n e job which lasted for eleve n y ear s; he ear ned an
associate s deg ree from El Paso Communi ty College and attended sever al classes at UTEP, he has
been marrie d to the same woman since 1972, and he has five children. All of these actions tend to
show Doe was of sound mind. Finally , the only other ref ere nce to Doe’ s unsound m i n d i s t he testimony of Dr. Clark and Dr. Be n k ert, both of which specific ally state that Doe is not leg ally incapa citated. Even taking Doe’ s assertions as true, which we must, the evidence fails to rise to the level
of i ncapa city require d under the doctrine of unsound mind. W e thus conclude that Doe presented

no evidenc e showing that during this rele vant period he was somehow incapa ble of participa ting in
and controlling a law suit. See Grace , 4 S.W .3d at 770; see also Do e v. He nderson Indepe ndent
School Dist. , 237 F.3d 631, 2000 WL 1701752, at *5 (5th Cir. 2000)(noting that Texas courts have

g ener ally denied tolling based on the unsound mind theory wher e a plaintiff is able to asser t his leg al rig hts, the Fifth Circuit aff irmed the district court’s decision deny ing tolling on this basis, noting that the plaintiffs had he ld down jobs, been mar ried, a nd participa

ted in leg al proc eeding s).
EQUITABL E ES TOPP EL Finally , we addre ss Doe’ s contention that he raised a fac t issue as to whether the Appellee swer e equitably estopped from asser ting limit ations as a defe nse. The Diocese and Msgr

. Rowland

arg ue that equitable estoppel does not apply , primarily rely ing on the fact that throug h Doe’ s own admission, he never

forg ot the assaults.
The doctrine of equitable estoppel require s (1) a false repr esenta tion or conce alment of
materia l fac ts; (2) made with knowledg e, actua l or constructive, of those fac ts; (3) with the intention
that it should be acte d on; (4) to a party without knowledg e or means of obtaining knowledg e of the
fac ts; (5) who detriment al l y relies on the repr esenta tions. Johnson & Higgins of Texas, Inc. v.
Kennec o Energy, Inc. , 962 S.W .2d 507, 515-16 (Tex. 1998); Dean v. Frank W

. Neal & Associates,

Inc. , 166 S.W .3d 352, 357-58 (Tex.App.--F ort Worth 2005 , n o p et.). Estoppel in avoidanc e of
limit ations may be invoked in two way s: a potential defe ndant conce als fac ts that are nece ssary for
the plaintiff to know he has a cause of action; or, the defe ndant eng ag es in conduct that induces the plaintiff to fore g o a timely suit re g arding a cause of action that the plaintiff knew exis ted. Rendon

v. Roman Catholi c Diocese of Amarillo , 60 S.W .3d 389, 391 (Tex.App.--Ama rillo 2 0 0 1 , p et. denied) ; Dean , 166 S.W .3d at 358. On appe al, J ohn Doe a rg ues the latter

applies.

To raise a fac t issue on his estoppel conduct claim, Doe must have prese nted some evidenc e

t hat the Appellee s’ conduct aff irmatively induced him into delay ing suit bey ond the l i m i t at i o n s period, and that such delay in filing was not due to any want of diligenc e on Doe’ s part. See Rendon , 60 S.W .3d at 391; Ladd v. Knowles , 505 S.W .2d 662, 669 (Tex.Civ.App.--Amarillo 1974, writ ref ’d n.r.e.)

. “I mplicit in this test are the require ments that the plaintiffs knew they had a cause of action,
that the cause of action had acc rued at the t ime the i nduceme nt occur red, a nd that their i nitial and
continued relianc e upon the orig inal inducement was rea sonable.” Dean , 166 S.W .3d at 358 citing
Rendon , 60 S.W .3d at 391. Other wise stated: [T] o estop defe ndant, he must have done something that amounted to an aff irmativeinducement to p l ai n t i ff to delay bring ing the action. Statements calc ulated to

dissuade a litigant from beg inning action and not desi gn ed m er ely to induce its postponement will not, in the absenc e of fra ud, estop the party making t h em from
av ail ing himself of the plea of the statute of limit ations in the event of subs eq u en t prosec tion [ sic] of such action.

See Squyres v. Christ ian , 253 S.W .2d 470, 472 (Tex.Civ.App. 1952), quoting 53 C.J .S., L imitations
of Ac tions, s 25, p.966.

I n Rendon , children alleg edly molested by a Catholic priest sued bas ed on one bishop’s
failure to take action ag ainst the priest. Rendon , 60 S.W .3d at 389. The Amarillo Court reje cted the plaintiff’s asser

tion of estoppel as a defe nse to the statute of limit ations wher e the bishop repr esente d

to the victims’ fa t h er t h at he would “take action to take car e of the matter,” and that “the Church
would take car e of the Boy s, protec t the other children from [t he abusive priest], and that leg al action
would be unnec essar

y .” Id . at 390-91. I n aff

irming the trial court’ s summary judgme nt, the court
noted that:
Wit hout evidenc e that any thing more than t he mere di sclosure of criminal conduct
occur red betwee n [t he victims’ fathe r] and [t he Bishop], without ref ere nce to a discussion about a claim, s u i t , redress or compensa tion of any kind, we lack sufficie nt evidentiar

y fou n d at i o n from which to rea sonably infer that a promise to ‘take action’ comprised inducement to dela y initiation of a civil suit

. [Emphasis in orig inal.]
Rendon , 60 S.W .3d at 392.
Neither Fa ther Hay ’s claim that he was God nor the war ning by Msgr

. Rowland is sufficie nt

to delay suit be y ond the applicable statutory periods of limit ation. See Rendon , 60 S.W .3d at 392;

see also Squyres , 253 S.W .2d at 472 (statements calc ulated to dissuade a litigant from beg inning
action and not de signe d mere ly to induce its postponement will not, in absenc e of f raud, e stop the
party making them from availing himself of the plea of the statute of limit ation). None of the alleg ed
threa ts ref

ere nce civil action, redr ess, or compensa tion. Doe admits he had knowledg e of the fac tsg iving rise to his claims. I n fac t, he knew the abuse was wrong when it happene d and he has never

fo rgotten it. Consequently , equitable estoppel does not apply

. See Doe v. Linam , 225 F.Sup p

. 2 d 731, 736-37 (S.D.Te x . 2002).
We overrule I ssue One a

nd aff irm the judg ment of the trial c ourt.

September 21, 2011 ANN CRAWFORD McCL URE, J ustice

Be fore Chew, C.J ., McClure, J., and Gomez, J udg e Gomez, J udg e, sitting by

assig nment