DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

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.,

Appellees.

No. 4D15-550

[June 1, 2016]

Appeal from the Circuit Court for the Seventeenth 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.

MAY, J.

The plaintiff appeals an order dismissing with prejudice his second 

amended complaint against the 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 plaintiff
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experienced sexual abuse by a boy off of school grounds. His mother 

reported the incident to the school.

In the 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 after 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 the memories of the abuse to be repressed, triggering 

traumatic amnesia. 

The plaintiff alleged the three priests threatened to harm him and his 

mother if he told anyone about the incidents. These threats silenced the 

plaintiff, prevented a report of the abuse, and caused him to repress the 

traumatic events. The plaintiff suffered severe emotional consequences

and drew pictures of the events. His mother and aunt saw the pictures. 

That caused his mother to notify the Archdiocese and/or school about 

the plaintiff’s behavior, but no action was taken other than recommending 

one of their therapists. The plaintiff alleged that despite the Archdiocese’s

and school’s knowledge of the sexual abuse, they 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 

school bought the plaintiff and his mother a house after learning about 

the mother’s concerns. Priest #1 obtained a loan from the Archdiocese 

and/or school 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 destroy incriminating documents and shuttle sexually 

abusive priests from parish to parish to cover up their sexual abuse and

avoid scandal, criminal prosecution, and civil litigation. He alleged the 

Archdiocese and school 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 they

knew, or should have known, that the priests abused the plaintiff and 

others and conspired to cover it up. 

In the spring 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 something he witnessed, caused the plaintiff to have a flashback. His 

mother then told him about the physical manifestations of the abuse he 
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exhibited as a child.

Within a year of his awareness, the plaintiff filed a complaint against 

the Archdiocese, the school, priest #3, and the estates of priests #1 and 

#2. The amended complaint, filed in January 2014, asserted claims for: 

(1) intentional infliction of emotional distress, (2) negligence, and (3) 

respondeat superior. The trial court dismissed the amended complaint, 

citing Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000). The court 

reasoned that equitable estoppel did not toll the statute of limitations 

because the plaintiff failed to allege specific affirmative conduct by the 

Archdiocese and school 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 pleadings 

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 complaint, asserting the same claims

against the Archdiocese and school. 

The Archdiocese and school moved to dismiss, arguing the plaintiff’s 

claims were barred by the statute of limitations. They argued the 

complaint had to be filed within four years of the abuse (1986), or within 

four years of the plaintiff reaching the age of majority (1997). They further 

argued that Hearndon’s delayed discovery doctrine applied 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) 

section 95.11(9), Florida Statutes, is inapplicable because it applies only 

to actions which would not be time-barred before July 1, 2010; and (3) the 

respondeat superior claims cannot be based upon the clergy’s sexual 

abuse. 

The plaintiff responded that his claims were timely under sections

95.11(7) and (9), Florida Statutes, by virtue of Hearndon’s delayed 

discovery doctrine. He responded that the claims were timely under the 

doctrine of equitable estoppel because the Archdiocese and school 

tormented him into a state of self-protective amnesia, which tolled the 
4

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 school. 

At the hearing, the trial court reserved ruling, but subsequently granted

the motion to dismiss the second amended complaint with prejudice. The 

court then entered final judgment. From that final judgment, the plaintiff

now appeals.

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

novo review. Burgess 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 limitations for negligence, intentional infliction of emotional 

distress, and respondeat superior claims. § 95.11(3)(a), (o), (p), Fla. Stat. 

(2014). Here, the plaintiff’s complaint was filed long after the generic four 

year statute of limitations expired. His 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, our supreme court 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 court reasoned that the delayed discovery doctrine should apply to

a child sexual abuse case because: (1) “it 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 did not specifically address 

whether the delayed discovery doctrine applied in all childhood sexual 

abuse cases involving traumatic amnesia.

Subsequently, in Davis v. Monahan, 832 So. 2d 708 (Fla. 2002), the

supreme court refused to apply the delayed discovery doctrine to claims 

for breach of fiduciary duty, civil theft, conspiracy, conversion, and unjust 

enrichment. Id. at 709–10. Citing sections 95.11(4) and (7), the court 

stated: “Aside from the provisions above for the delayed accrual of a cause 

of action in cases of fraud, products liability, professional and medical 
5

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 the delay in discovery.” Id. at 712.

In 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 because the legislature had not extended 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), Florida Statutes. 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, which 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 based 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, it 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 prejudice.

The plaintiff next argues that section 95.11(7) applies because his 

claims are “based on” or “founded on” the Archdiocese and school’s 

intentional conduct. He also argues that section 95.11(7) applies to 

intentional torts “based on” and “founded on” abuse, including claims

against third parties arising out of a willful act of child abuse. He argues 

that because the claim for intentional infliction of emotional 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 school respond that section 95.11(7) does not 

apply because the claims against them are not intentional torts. They 

argue the legislature 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 defined 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 time 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). 

The three definitions of abuse found in sections 39.01, 415.102, and 

984.03, however, do not apply to the negligence claims against 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 Sinrod 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 torts against the perpetrator of the 

childhood sexual abuse. Cisko, 123 So. 3d at 84–85. Section 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 

intentional infliction of emotional distress for the same reason. Although 

that claim is an intentional tort, it is based upon the theory of respondeat 

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 perpetrators of abuse, not to the vicarious 

liability of the principal for the act of its agents. See Cisko, 123 So. 3d at 

84–85; Sinrod, 90 So. 3d at 854.
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The plaintiff next relies on section 95.11(9), Florida Statutes, to provide 

a detour around the statute of limitations. 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. Section 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. The language is broad enough to 

include a cause of action against a non-perpetrator if it is related to a 

sexual 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 2016). 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 Temple 

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 resurfaced.” Id.

The Third District noted that section 95.11(7) tolled the statute of 

limitations 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 and 
8

school were time-barred before July 1, 2010, since neither the delayed 

discovery doctrine nor section 95.11(7) applied to the accrual of those 

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 doctrine or section 95.11(7), the trial court 

properly dismissed those claims.

Because the plaintiff’s respondeat 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 that the priests were acting within 

the course and scope of their employment with the Archdiocese and school 

when they committed the alleged sexual abuse.

Lastly, the 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 school because the trauma 

of the priests’ abuse and threats of violence, which the Archdiocese and 

school condoned or concealed, caused him to repress the memory of his 

abuse. 

The Archdiocese and school respond the trial court properly dismissed 

the equitable estoppel claim because the plaintiff failed to allege they lulled 

him into a position which caused him to fail to assert his rights, or that 

they engaged in conduct that induced him into forbearing suit within the 

applicable limitations period. They argue that equitable estoppel cannot 

apply because the defendant was unaware 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 induced 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. 2d 1071, 1079 (Fla. 2001)). 

Our decision in John Doe No. 23, is on point. There, the plaintiff filed 

a complaint against the archdiocese alleging he was sexually abused by its
9

employees when he was a student in the early 1970s, but waited more 

than thirty years to file suit. John Doe No. 23, 965 So. 2d at 1187. The 

archdiocese moved to dismiss asserting a statute of limitations defense. 

Id.

The 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. Even though the plaintiff claimed the archdiocese breached 

a fiduciary duty to disclose 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 1187–88; see also Rubio, 114 So. 3d at 281–82. 

Here, there are no allegations that the Archdiocese and school actively 

induced the plaintiff into forbearing a lawsuit. 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 of the alleged abuse. The allegations are 

insufficient to support an equitable estoppel claim. 

Affirmed.

FORST, J., and SCHER, ROSEMARIE, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.