### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

W.D. , Appellant,

v.

ARCHDIOCESE OF MIAMI, INC.; ARCHDIOCESE OF MIAMI, A CORPORATION SOLE; ARCHBISHOP WENSKI AS CORPORATE SOLE OF THE ARCHDIOCESE OF MIAMI; ST. BERNADETTE HOME &

SCHOOL ASSOCIATION, INC.; REV. J.Q.; M.O.
, as Personal Representative of the Estate of REV. P.O.; and LAWRENCE FRANCO, ESQ. , as Personal Representative of the Estate of REV. E.B. , Appellee s

.

No. 4D 15

- 550

[ June 1, 2016 ]

Appeal from the Circuit Court for the Sev enteenth Judicial Circuit, Broward County ; Carol

- Lisa Phillips , Judge; L.T. Case No. CACE13024204(25)

.

Stephen L. Malove of Malove Henratty, P.A., Fort Lauderdale and Adam Lawrence of Lawrence & Daniels, Miami, for appellant.

Elaine D. Walter, Michael A. Mullen and Joseph M. Winsby of Gaebe, Mullen, Antonelli & DiMatteo, P.A., Coral Gables, J. Patrick Fitzgerald and Robert J. Diaz of J. Patrick Fitzgerald, P.A., Coral Gables, for appellees.

M AY
, J.

The plaintiff appeals an order dismissing with prejudic e his second amended complaint against t he defendants: Archdiocese of Miami, Inc.; Archdiocese of Miami, a Corporation Sole ; Archbishop Wenski as Corporate Sole of the Archdiocese of Miami (collectively “Archdiocese”) ; and
St. Bernadette Home & School Association, Inc

. (“school”) . He argues the
trial court erred in dismissing the complaint as time

- barred. We disagree
and affirm.

The second amended complaint contained the following allegations.
The plaintiff attended a school owned, operated, and staffed by the
Archdiocese from 1980 to 1986

. At six years of age, the plaintiff2 experienced sexual abuse by a boy off of school grounds

. His mother reported the incident to the school.

In t he second amended complaint , the plaintiff alleged details of how three priests sexually abused him over a period of time while pretending
to counsel him about the off

- campus abuse

. He alleged that a fter each incident, the plaintiff was sent back to class

. He used survival tactics to
disassociate from the abuse by convincing his mind the abuse was not
real . This caused th e memories of the abuse to be repressed , triggering
traumatic amnesia.

The plaintiff alleged th e three priests threatened to harm him and his
mother if he told anyone about the incidents. Thes e t hreats silenced the plaintiff , prevented a repor t of the abuse, and caused him to repress the

traumatic events. The plaintiff suffered s evere emotional consequences
and drew pictures of the events

. His mother and aunt saw the pictures.

That cau sed his m other to notify the Archdiocese and/or s chool about the plaintiff’s behavior

, but no action was taken other than recommending one of their therapists. T he plaintiff alleged that despite the Archdiocese ’s
and s chool’s knowledge of the s exual abuse , the y continued to give the priests unfettered access to him and created a plan to protect the priests and themselves from scandal and liability.

The plaintiff alleged that in 1986, priest #1 and the Archdiocese and/or

s chool bought the plaintiff and hi s mother a house after learning about
the mother’s concerns. Priest #1 obtained a loan from the Archdiocese
and /or s chool to purchase the house and made the mortgage payments
until 1991 when the plaintiff’s mother deeded the house back to priest #1.

The plaintiff generally alleged the Catholic Church’s policies and practices were to d estroy incriminating documents and shutt le sexually abusive priests from pa rish to parish to cover up their sexual abuse and avoid scandal, criminal prosecution, and civil li tigati on. He alleged the
Archdiocese and s chool acted in accordance with those policies and practices because all three priests had been shuttled from parish to parish
both before and after the abuse . Essentially, the plaintiff alleged the y knew

, or shou ld have known

, that the priests abused the plaintiff and others and conspired to cover it up.

In the s pring of 2013, the plaintiff began to recall the prior abuse when
he came across a picture of himself as a seven

- year

- old. This

, coupled
with somethin g he witnessed

, caused the plaintiff to have a flashback

. His
mother then told him about the p hysical manifestations of the abuse he3 exhibited as a child.

W ithin a year of his awareness , t he plaintiff filed a complaint against the Archdiocese, the s chool, priest #3

, and the e state s of priest s #1 and

#2. The amended c omplaint

, filed in January 2014

, asserted claims for: (1) i ntentional i nfliction of e motional d istress, (2) n egligence, and (3)

r espondeat s uperior. T he trial court dismiss ed the amend ed complaint

,
c iting Hearndon v. Graham , 767 So. 2d 1179 (Fla. 2000). The court reasoned that equitable estoppel d id not toll the statute of limitations
because the plaintiff failed to allege specific affirmative conduct by the
Archdiocese and s chool that showed they tried to delay the plaintiff ’s
claims. When the plaintiff moved for clarification, the court entered
another order:

This court has read and re

- read 95.11(7) and (9) Florida Statutes, Hearndon

, Cisko , and Davis , as well as the plead ings and The Florida Bar article. Rehearing as to the Archdiocese is granted and this court hereby amends its order to a dismissal without prejudice, allowing leave to Amend if able
to state a cause of action.

The plaintiff filed a second amended compla int, asserting the same claims against the Archdiocese and s chool.

The Archdiocese and school moved to dismiss, arguing the plaintiff ’s
claims we re barred by the statute of limitations . They argued the complaint had to be filed within four years of the abuse (1 986 )

, or within four years of the plaintiff reaching the age of majority ( 1997 )

. They further argued that Hearndon ’s delayed discovery doctrine applie d only to
intentional tort claims against the perpetrator

, not the perpetrator’s employer.

They also argued that : (1) equitable estoppel based on fraudulent
concealment cannot be used to circumvent the statute of limitations ; (2)

s ection 95.11(9) , Florida Statutes, is in applicable because it applies only

to actions which would not be time

- barre d before July 1, 2010 ; and (3) the respondeat superior claims cannot be based upo n the clergy’s sexual
abuse.

The plaintiff responded that his claims were timely under section s 95.11(7) and (9) , Florida Statutes, by virtue of Hearndon ’s delayed
discover y doctrine

. He responded that t he claims were timely under the doctrine of equitable estoppel because the Archdiocese and s chool
tormented him into a state of self

- protective amnesia

, which tolled the4 statute of limitations. Lastly, he responded that his claims for respondeat superior were not barred by the “scope of employment” rule because the priests were acting on behalf of the Archdiocese and sc hool.

At the hearing , t he trial court reserved ruling

, but subsequently granted the motion to dismiss the second amended complaint with prejudice. The

court then entered final judgment. From th at final judgment, the plaintiff now appeals.

The parties reiterate their respective arguments on appeal. We have de

novo review. Burges s v. N. Broward Hosp. Dist. , 126 So. 3d 430, 433 (Fla. 4th DCA 2013) (citing MEBA Med. & Benefits Plan v. Lago , 867 So. 2d 1184, 1186 (Fla. 4th DCA 2004)).

Sections 95.11 (3) (a), (o), and (p), Florida Statutes (2014), provide a four year statute of limit ations for negligence, intentional infliction of emotional distress, and respondeat superior claims . § 95.11 (3) (a), (o), (p), Fla. Stat. (2014). Here, t h e plaintiff’s complaint was filed long after the generic four

year statute of limitations expired . H is claims are barred unless an exception exists. The delayed discovery doctrine is one such exception.

“The ‘delayed discovery’ doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should
know of the tortious act giving rise to the cause of action.” Hearndon , 767
So. 2d at 1184. In Hearndon , o ur supreme c ourt applied the doctrine to a complaint against an individual alleging child sexual abuse that had
occurred sixteen plus years prior to the filing of the complaint. Id. at 1181

– 82

.

The c ourt reasoned that the delayed discovery doctrine should apply to
a child sexual abuse case because : (1) “i t is widely recognized that the
shock and confusion resultant from childhood molestation

. . . may lead a child to deny or suppress such abuse from his or her consciousness”; and (2) “it would seem patently unfair to deny its use to victims of a uniquely
sinister form of abuse.” Id. at 1186. Hearndon d id not specifically address whether the delay ed discovery doctrine applied in all childhood sexual abuse cases involving traumatic amnesia

.

Subsequently, i n Davis v. Monahan , 832 So. 2d 708 (Fla. 2002), the supreme court refused to apply the delayed discovery doctrine to claims
for breach of fiducia ry duty, civil theft, conspiracy, conversion, and unjust
enrichment. Id

. at 7 09

– 10. C iting section s 95.11(4) and (7), the court
stated : “ A side from the provisions above for the delayed accrual of a cause of action in cases of fraud, products liability, professional and medical5 malpractice, and intentional torts based on abuse, there is no other statutory basis for the delayed discovery rule. ” Id. at 710. The court indicated that its application of the doctrine in Hearndon was due to the “unique and sinister nature of childhood sexual abuse, as well as the fact that the doctrine is applicable to similar cases where the tortious acts
cause th e delay in discovery. ” Id

. at 712.

I n Cisko v. Diocese of Steubenville , 123 So. 3d 83 (Fla. 3d DCA 2013),
the Third District recognized the limited application of Hearndon ’s delayed discovery doctrine. Id. at 84. “The [supreme court’s] opinion strongly suggests the holding hinges not only on these specific allegations but also on the specific cause of action: a suit for intentional tort against the perpetrator .” Id

. (emphasis added). The Third District affirmed a summary judgment for the diocese beca use the legislature had not e xtended the limitations period under section 95.11(7) to claims other than intentional

torts. Id. at 85.

In Doe v. Sinrod , 90 So. 3d 852 (Fla. 4th DCA 2012), we reviewed section 95.11(7)’s application to section 768.28(14)

, Fl orida Stat utes

. Id. at 854. There, the plaintiff filed a complaint in 2010 alleging a second

- grade teacher sexually assaulted and molested her seven years before. Id. at
853. The school board moved to dismiss based on the statute of limitations, whic h the trial court granted. Id. at 853

– 54. We affirmed. We held that section 768.28(14)’s time limitation for negligent tort claims against state agencies controlled over section 95.11(7), which provided the
statute of limitations for intentional torts b ased on a child ’s sexual abuse by an individual

. Id. at 855

– 56.

Davis

, Cisko , and Sinrod all lead to but one conclusion: Hearndon ’s delayed discovery doctrine applies only to intentional tort claims against the perpetrator of the sexual abuse

. Thus, i t does not apply to the plaintiff’s claims against the Archdiocese and school . The trial court did not err in dismissing the second amended complaint with preju dice.

The plaintiff next argues that section 95.11(7) applies because his
claims are “based on” or “founded on” the Archdiocese and s chool’s

i ntentional conduct. He also argues that s ection 95.11(7) applies to
intentional torts “based on” and “founded on” abuse , including claims against third parties arising out of a willfu l act of child abuse. He argues that because the claim for intentional infliction of e motional distress is an intentional tort, section 95.11(7) applies. And, he argues section 95.11(7) applies to the respondeat superior claims because they are “based on ” and
“founded on” the priests’ intentional conduct.6 The Archdiocese and s chool respond that section 95.11(7) does not apply be cause the claims against them are not intentional torts. Th e y argue the l egislature did not intend section 95.11(7) to cover institutional child abuse or neglect because the statute does not include institutions
within the definitions of abuse. We agree with the Archdiocese and school.

Section 95.11(7), Florida Statutes

, provides:

An action founded on alleged abuse, as define d in s. 39.01, s. 415.102, or s. 984.03, or incest, as defined in s. 826.04, may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the t ime of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse,
whichever occurs later.

§ 95.11(7), Fla. Stat. (2014).

T he three definitions of abuse found in sections 39.01, 415.102, and 984.03, h owever , do not apply to the negligence claims agai nst the
Archdiocese and school. The definitions of abuse cross

- referenced in section 95.11(7) do not provide for abuse by an institution . Rather, section

39.01 outlines separate subsections for definitions of abuse where an
institution is involved

. See § 39.01(32), (47)

, Fla. Stat. (2014).

This conclusion is consistent with Sinro d where we read section 95.11(7) to apply only to “intentional torts committed by an individual

, ”
and not to negligence claims

. Sinrod , 90 So. 3d at 854. It is also consistent with the Third District’s holding in Cisko where the delayed discovery
doctrine was limited to intentional tor ts against the perpetrator of the
childhood sexual abuse. Cisko , 123 So. 3 d at 84

– 85. S ection 95.11(7) does not save the plaintiff’s claims against the Archdiocese and school.

Section 95.11(7) likewise does not apply to the plaintiff’ s claims for

inte ntional infliction of emotional distress for the same reason. A lthough that claim is an intentional tort, it is based upon the theory of r espondeat superior and not the direct intentional acts of the Archdiocese and school

, which are institutional defendants . The plaintiff’s attempt to bootstrap the respondeat superior claims against institutional defendants to the intentional acts of the priests fails. Simply put, section 95.11(7) applies

to intentional torts against perpetrato rs of abuse

, not to the vicarious liability of the principal for the act of its agents. See Cisko , 123 So. 3 d at

84

– 85 ; Sinrod , 90 So. 3d at 854

.7 The plaintiff next relies on s ection 95.11(9), Florida Statutes

, to provide
a detour around the statute of l imitations. The statute was enacted in 2010, and provides:

An action related to an act constituting a violation of s. 794.011 involving a victim who was under the age of 16 at the time of the act may be commenced at any time. This subsection applies to any such action other than one which would have been time barred on or before July 1, 2010.

§ 95.11, Fla. Stat. (2014)

.

Section 794.011 is the sexual battery statute. S ection 95.11(9)

, therefore

, provides that an action related to an act of sexual battery involving a victim under 16 has no statute of limitations as long as it is not time barred on or before July 1, 2010

. T he language is broad enough to
include a cause of action against a non

- perpetrator if it is related to a

sexua l battery. But, the claim cannot be time

- barred on or before July 1,

2010.

The Third District recently had occasion to rule on this statute’s application to an otherwise time

- barred claim. Firestone v. Temple Beth
Sholom

, 183 So. 3d 1225 (Fla. 3d DCA 20 16). There, the plaintiff filed a complaint forty years after the alleged sexual abuse, which occurred when
she was a minor. Id. at 1226. She sued the Temple for vicarious liability
for the actions of one of its teachers. Id. She also alleged the Temp le violated its fiduciary duty to her

. Id. She alleged the delay “was due to the traumatic nature of the abuse inflicted upon her which caused her to suffer repressed memory syndrome and, consequently, she had no memory of the abuse until 2009, when it r esurfaced.” Id.

The Third District noted that section 95.11(7) toll ed the statute of
limitation s for certain sexual abuse crimes, but the statute was limited to
intentional torts. Id. The Third District then evaluated section 95.11(9)’s application : “Without reaching the issue of whether this provision covers the theories of liability relied upon by [the plaintiff], we note that this provision does not apply to causes of action that accrued and would be time barred on or before July 1, 2010.” Id

. at 1227 . The court concluded that because the plaintiff’s claim would have been time

- barred, the statute
did not rescue the claim. Id.

We agree with the Third District. The plaintiff’s claims for negligence and intentional infliction of emotional distress against the Archdiocese and8 s chool were time

- barred before July 1, 2010, since neither the delayed discovery doctrine nor section 95.11(7) appl ied to the accrual of th os e claims.

The statute is prospective from its language, and applies only to claims
that were not time

- barred prior to its enactment. Because the plaintiff ’s respondeat superior claims were time

- barred before July 1, 2010, and not saved by the delayed discovery doctrin e or section 95.11(7)

, the trial court properly dismissed those claims.

Because the plaintiff’s resp ondeat superior claims are time

- barred and not rescued by Hearndon

, section 95.11(7), or section 95.11(9)

, we need not address the plaintiff’s suggestion t hat the priests were a cting within the course and scope of their employment with the Archdiocese and s chool when they committed the alleged sexual abuse.

Lastly, t he plaintiff argues his claims were timely under the doctrine of equitable estoppel. He asserts the doctrine prevented the accrual of his causes of action against the Archdiocese and s chool because the trauma of the priests’ abuse and threats of violence, which the Ar chdiocese and

s chool condoned or concealed, caused him to repress the memory of his
abuse.

The Archdiocese and sc hool respond the trial court properly dismissed the equitable estoppel claim be cause the plaintiff failed to allege t hey lulled him into a po sition which caused him to fail to assert his rights, or that they e ngaged in conduct that induced him into forbearing suit within the applicable limitations period. T hey argue that e quitable estoppel cannot apply because the defendant was un aware of his cause of action until he remembered his repressed memories.

“The doctrine of equitable estoppel typically applies to avoid a statute of limitations defense where the injured party recognized the basis for the suit but the party that caused the injury ind uced the injured party to forbear from filing suit during the limitations period.” Rubio v. Archdiocese of Miami

, Inc. , 114 So. 3d 279, 281 (Fla. 3d DCA 2013) (citation omitted)

. “To assert equitable estoppel, the defendant must have engaged in wrongful conduct which ‘ induced another into forebearing suit within the applicable limitations period. ’ ” John Doe No. 23 v. Archdiocese of Miami,

Inc. , 965 So. 2d 1186, 1187 (Fla. 4th DCA 2007) (emphasis added) ( quoting Major League Baseball v. Morsani , 790 So. 2 d 1071, 1079 (Fla. 2001) ).

Our decision in John Doe No. 23 , is on point. There, the plaintiff filed a complaint against the a rchdiocese alleging he was sexually abused by its9 employees when he was a student in the early 1970s

, but waited more
than thirt y years to file suit. John Doe No. 23 , 965 So. 2d at 1187 . The

a rchdiocese moved to dismiss asserting a statute of limitations defense

. Id.

T he plaintiff sought to avoid the statute of limitations by relying on the theory of equitable estoppel. Id. The plaintiff alleged that his delay in filing suit resulted from the archdiocese’s concealment of its knowledge that the subject employees sexually abused other boys. Id. We held that “the plaintiff failed to allege any wrongful conduct or specific acts of fraud or fraudulent concealment by defendants at any point after the acts alleged in his amended complaint to justify applying the theory of equitable estoppel.” Id. E ven though the plaintiff claimed the archdiocese breached a fiduciary duty to discl ose the abuse of the other boys, it does not explain how the plaintiff was induced to wait almost three decades to sue for
abuse. Id. at 118 7

– 8 8 ; s ee also Rubio , 114 So. 3d at 281

– 82

.

Here, there are no allegations that the Archdiocese and sc hool activ ely
induce d the plaintiff into forbearing a law suit. The plaintiff would have had to have been aware of his right to sue, and then fail to file because of the Archdiocese and school’s actions. This is contrary to his asserted position that he had no memory o f the alleged abuse. The allegations are insufficient to support an equitable estoppel claim

.

Affirmed.

F ORST
, J., and S CHER
, R OS EMARIE , Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.