NO. 07-01-0125 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D NOVEM BER 14, 2001

______________________________ DARIO R ENDON, Jr., JUAN RENDON , RUDY RENDON , DANIEL RENDON, and RODNEY R ENDON, Appellants
v. ROMAN CATH OLIC D IOCE SE O F AM ARIL LO, M OST REVER END LERO Y T. MATTHIESEN, HIS PR EDECE SSORS AND S UCCES SORS, A S BIS HOP OF TH E ROMAN CATHOLIC DIOCES E OF AM ARILLO; RO MAN C ATHOLIC DI OC ESE OF LUBBOCK; MOST REVEREN D P LACIDO RODRIGUEZ, HIS PREDE CESSORS AN D SUCCESSORS, AS B ISHO P OF TH E ROM AN CATHOL IC DI OCES E OF LUBBO CK, AND ARCHB ISHOPMICHAEL J. SHEEHAN, PRESENTLY ARCHBI SHOP OF THE DI OCESE OF SANTA FE, NEW MEXICO, AND FORMERLY THE B ISHO P OF TH E ROMAN CATHOLIC DIOCESE OF LUBBOCK Appellees

__________________________________________ _______ FROM THE 28 6th DIST RICT COURT OF HOCKLEY COUN TY; NO. 95-06-1618 1A; HON. ANDY KUP PER, PRESIDING

_______________________________ BEFORE, BOYD, C.J., QUINN, AND REAVIS, J.J. Dar io Ren do n, Jr., Juan Rendon , Rudy Rendon, D aniel Rendon, and Rodney Rendon (the Rendon children) appeal from a final summ ary judgm ent granted in favor of the Roman Catholic Di ocese of Amarillo, the Roman Catholic Dio cese of Lubbock, Most1 The trial co urt s evered theallegation s ag ains t the Ch urch from those levied agains t the Estate of Fat he r Ho

we ll. 2 Reverend Leroy T. Matthiesen, B ishop of t he Rom an C ath olic Dioceseof A m arilloand his predecessors an d successors, Most Reverend Pl acido Rodri quez, Bishop of the Rom an Cat holic Diocese of Lubbo ck, and his pre decessors and successor s, and Michael J. Sheehan, Archbishop of the Diocese of Santa Fe, New Mex ico and form erly the Bishop of the Rom an Catho lic D iocese of Lubbock (collectively referred to as the Churc h). They contend, through four issues, that the t rial court erred in granting the judgm ent. We disagree and affirm s ame. Backgr ound The dispute concerns the sex ual assault of Father How ell, a Rom an Catholic priest, upon the Rendon children, whowere m inors and Catholic parishioners at the time. According to the sum mary judgm ent evidence, the assaults occ urred in the late 1970's and
ear ly1980's. In the Fall of 1986, the father of

the boys, Dario Rendon S r.,(Rendon Sr.) informed Bishop Sheehan, the n bishop of the Roman Catholic Diocese of Lubbock, of the acts. BishopSheeh an inform ed Rend on Sr. tha t hew ould “take action to take care of the mat ter.” The record does not discl ose w het her thetw o ind ividu als e ver

bro ach ed t he topic again. How

ever, in 1995, suit was f iled against the Church and the estate of F ath er H owell because they

believed that Bishop Sheehan failed to “take action” as represented. The Church m oved fo r sum m ary judgm ent, alleging, among other things, t hatlimitations had long since passed. The trial court granted the mo tion without specifying the particular ground upon which it acted. 134 Standard of Review The sta nd ar d b y whi ch we r ev ie w summar y jud gmen ts is wel l- kn own and need not be repeated. Instead, w e simply refer thepar

tiesto R ule 1 66a of t he T exas R ulesof C ivil Procedure, ScienceSpectrum, Inc. v. Martinez , 941 S.W.2d 910 (Tex. 1997) and Nix on v. Mr. Property Management Co. Inc ., 690 S.W.2d 546 (Tex. 1985) (involving the standa rd generally ap plicable to su m m ary j udgm ents). Limi tations — Estoppel The Rendon children did not disp utetha t lim itat ionsw ould hav e ru n on eac h of the ir
causes of action unl ess their cl aims were preserved through so me th eory of law. The theory ass erted b elow and urged on appeal is estoppel. S imply put, they contend that misrepresentat ions utter ed b y B is hop Sheehan, w hile Bishop of the Lubbock Diocese, induced them to forego suit. Those m isrepresentations consisted of the Bishop sup pos edly

informing Rendon, Sr. tha t “the Church w ould take care of

the Boys, protect the other children from Father H owell, and that legal action would be unneces sary.” None of the affidavits exec uted by th e Rendo n children and tendered to the trial court as
sum m aryjudgm ent evidence illustrate that the Rendon children heard t he purpo rted misrepresentat ions said to t heir fathe r or that they w ere pres ent w hen the utteran ces w ere made. Furtherm ore, tha t portion of the R endon S r. affi davit supposedly evincing the misrepresentat ions consists of the italicized passages in the following quotation: I n the fall of 1986, I [Rendon S r.] discussed w ith Bishop She ehan th e revelations tha t Fa the r Ro dne y H owell h ad se xu al l y a bu se d s ome of my sons while he served as a s ervant of the Dioc ese of Am arillo, under the direction of Bishop Mat thiesen, and the Diocese o f Lubbock. He tol d me5

that he w ould

take acti

on to take care of

the matter

. Because I trus ted the Rom an6

Cat holic Chu rch and its Bis hop s, I belie ved tha t B isho p S hee han w ould take the necessary actions and tha t no legal action on my part would b e necessary. (Em phasis added). It is beyond dispute that estopp el may be invoked to defeat a claim of limitati ons. Furthermore, it may be invoked in two w ays. For insta nce, a pot ential defendant’s concealment

of factsfroma plaintiff w hich fact s are necessary for the p laintiff to know to pursue a cause of

action may prove fatal to the defense of l imitations. Leonard v. Eskew , 73 1 S. W .2 d 1 24 , 1 28 (T ex. App.--Austin 1987, w rit ref’d. n.r.e.). So too m ay one defeat
a limitations defense by estab lishing that the defendant engaged in conduct that induced the plaintiff to fo reg o a t im ely suit regarding a cause of action that the plaintiff knew existed. Id. It is the latter me ans which the Rendon children pursued at bar. That is, they assert that Bishop Sheehan induced them to delay suit. That being the tact pursued, to succeed, the Rendon children mus t h av e p re se nt ed so me evidence i llust rating th at those sued utilized words or conduct to induce them into delaying suit beyond the ti me permitted bystatute, unm ixed w ith any want of diligence on their part. Pal ais Royal, Inc. v. Gunnells , 976 S.W.2d 837, 849 (Tex. App.--Hous ton [1st Dist.] 1998, pet. dism ’d. by agr.); Leonard v. Eskew

, 731 S.W.2d at 129. Im plicit in thi s test are the requirem ents that the plaintiffs knew they had a cau se of act ion, that the cause of ac tion had accrued at the tim e the indu cem entoccurred, and that their initial and continued reliance upon the original inducement

was reas onable. Leonard v. Eskew , 731 S.W.2 d at 129

. As ex plain ed in Leonard , a plaintiff must not h ave “‘blindly relied upon a situation as being what it seem ed rather than as being w hat it in rea lity wa s.’” Id. , quoti ng , Neal v. P

ickett, 280 S.W. 7487

(T ex. Com m. App. 1926, j dgmt adopted). Moreover, the conduct or words undertaken by the prospective defendant must“amount[] to an affirmative inducement to delay bringing the action.” Ladd v. Knowl es , 505 S.W.2d 662, 669 (Tex. App.--Am arillo 1974, writ ref’d. n.r.e.). In applying the foregoing law to the sum mary judgm ent atbar, we turn to the aff idav itexecuted by Rendon Sr. w herein the latter allegedly rei terates the w ords of Bishop Sheehan. Upon do ing so, we im mediately see tha t Bis hop Sheehansaid nothing about the Church “protect[ing] the other children from Father Howe ll, and that legal action w ould be unnecessary.” In suggesting otherwise, the Re ndon ch ildren we re m istaken. Rathe r, itis Rendon Sr. w ho says that he (Rendon Sr.) “believed that Bishop Sheehan would take the necess ary act ions and t hat no leg al action on m y part w ould be necessary .” Mo re i mportantly, all tha t Bishop Sheehan utte red, accordi ng to the affid avit was that he (th e bishop) “w

ould takeaction to take care of the m atter.” Th e na tu re of

th e a ct io n t ha t Bi sh op She eh an pu rp or te dl y i nt en de d t o t ak e we n t
unmen tioned. Sim ilarly unmentioned is any statem entsuggesting, m uch less illustrating, thatthetw

o dis cus sed thepos sibil ity of t he R end onsiniti atin g su itagainst anyone or that the “legal action” which Rendon Sr. concluded w as unne cessa ry involved a civil suit or a criminal com plaint. No r did Rendon Sr. state that he inform ed Bishop Sheehan that he thoughtthe Rendon children or any other m ember of the Rendon fam ily sought or needed redress of any kind because of the alleged assault. Again, Rendon Sr. s imply stated th at he revealed to the b ishop th at Father Howell had sexually abused som e of the Rendon children.8

Again, we required, in Ladd , tha t the c onduct or words allegedly heard by the plaintiff evince “affirmative inducem ent to delay bringing [an] action.” W ithout evi dence thatanything m ore than the me re disclosure of criminal conduct occurred betw een Rendon Sr. and Bishop Sheehan, without reference toa discussion about a claim, s uit, redress or
com pensation of any kind, we lack sufficient evidentiary foundation fr om wh ich to reasonably infer thata promise to “take action” com prised inducement todelay initiati on of a civi l su it

. See Roth v. FFP Ope rati ng Part ners , 9 94 S.W .2 d 1 90 , 1 97 (T ex. Ap p.– Am arillo1999, pet. denied) (stating that a vital fact m ay not be deduced by inferring from inferences). To paraphrase Leonard and Neal , we m ust view the evidence not “‘as being wha t i t s ee me d r ather than as being w hat it in reality was.’” Here, in reality, the record fell short of containing any evidence illustrating the presence of each eleme nt of estopp el. Accordingly, at least oneviable groun d for su m m aryjudgm ent appears of record and prevents us from

holding that the trial court erred. W e a ff ir m the summar y jud gmen t e xec ut ed be lo w.

Brian Quinn Justice Publish.