L.C. v. A.D. , 971 S.W.2d 512 ( 1997 )

OPINION ON REHEARING

THOMAS, Chief Justice.

This cause is before the Court on appellee A.D.’s motion for rehearing. We GRANT the motion for rehearing. We VACATE our opinion and judgment of March 21, 1994. This is now the opinion of the Court.

L.C. appeals from the trial court’s order granting summary judgment in favor of A.D. on all of L.C.’s claims. L.C. sued her father, A.D., alleging various causes of action stemming from his alleged sexual abuse of her when she was a child. L.C. pleaded delayed discovery of her causes of action. The question before this Court is whether the statute of limitations bars L.C.’s causes of action. We conclude it does and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal from a summary judgment. In determining whether a material fact issue precluding summary judgment exists, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). This standard requires us to resolve all doubts in favor of the nonmovant and accept as true all evidence favorable to the nonmovant. Nixon, 690 S.W.2d at 549. In this case, A.D. moved for and was granted summary judgment on his affirmative defense. Keeping in mind the standards by which we are guided, we review the relevant summary judgment evidence in the light most favorable to L.C., the nonmovant.

L.C. was born in March 1957. Her parents divorced the following year. L.C. alleged that when she was two years old, AD. performed oral sex upon her and attempted to penetrate her. In 1966, L.C. claimed A.D. had sexual intercourse with her. During a course of psychological treatment in the fall of 1988 through January 1989, several doctors and therapists asked L.C. if she had been the victim of incest or other sexual abuse. She did not believe she had been, but admitted the questions gave her reason to suspect otherwise. At one time, however, L.C. had no memory of her father sexually abusing her. According to L.C., she did not remember her father’s alleged incestuous acts until on or after February 1,1990, while undergoing therapy with Dr. Gladys Beale-Ganzhorn. L.C. filed her suit against A.D. on December 24, 1991, twenty-five years after the last alleged incident of abuse.

AD. moved for summary judgment on the grounds that: (1) L.C.’s claims were barred by the two-year statute of limitations for personal injury claims; (2) even if the discovery rule applied to delay accrual of her claims, L.C. knew or should have known of her claims more than two years before she filed suit; and (3) there is no cause of action for the acts alleged in L.C.’s petition. The trial court granted AD.’s motion for summary judgment without specifying the grounds for its ruling. In three points of error, L.C. claimed the trial court erred in granting summary judgment on the bases that: (1) the discovery rule did not apply to toll the statute of limitations; (2) she knew or should have known the basis of her injury more than two years prior to filing her claims; and (3) she had no cause of action against A.D. On original submission, a divided Court reversed the summary judgment and remanded the cause to the trial court for further proceedings.

In his motion for rehearing, A.D. asserts this Court erred in concluding the discovery rule applied because the facts do not satisfy the Precision Sheet Metal factors and there is no objective evidence of abuse. A.D. also asserts that even if the discovery rule applies, he proved discovery more than two years before L.C. filed suit. AD. also contends this Court erred in refusing to consider his assertions that L.C. had no causes of action for the claims she alleged. L.C. responded that this Court’s opinion was correct in concluding that the discovery rule applied and she presented objective evidence of a wrong. L.C. also responded that this Court properly concluded that the trial court erred in granting A.D. summary judgment on the ground that she knew or should have known of the basis of her injury more than two years before she filed suit and in holding that A.D. did not expressly present his claim regarding L.C.’s causes of action.

DISCOVERY RULE

1.Standard of Review

The standard of review for summary judgment is well established:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon, 690 S.W.2d at 648-49. Summary judgment is not intended to deprive litigants of their right to a full hearing on fact issues. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). It is designed to eliminate patently unmeritorious claims or untenable defenses. Gulbenkian, 151 Tex. at 416, 252 S.W.2d at 931. The grounds for summary judgment must be presented in the motion itself. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiffs cause of action as a matter of law or establishes all elements of an affirmative defense as a matter of law. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). Where the trial court’s judgment does not specify the grounds for its ruling, we may uphold summary judgment on any theory supported by the evidence. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

2. Statute of Limitations

At the time L.C. filed her cause of action, a suit for personal injury had to be brought no later than two years after the date that the cause of action accrued. See Act of May 17,1985, 69th Leg., R.S., ch. 959, § 1,1985 Tex. Gen. Laws 3242, 3252, amended by Act of May 27, 1995, 74th Leg., R.S., ch. 739, § 2, 1995 Tex. Gen. Laws 3850, 3850 (current version at Tex. Crv. PRAC. & Rem. Code § 16.003(a) (Vernon Supp.1997)).¹ Generally, a cause of action for personal injury accrues when the wrongful act effects an injury, regardless of when the victim learns of the injury. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). The primary purpose of statutes of limitations is to provide defendants with a fair opportunity to defend against lawsuits while witnesses are available and evidence is fresh in their minds by compelling the exercise of rights within a reasonable time. See Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988).

There is no dispute that because L.C. was under a legal disability until she turned eighteen years of age in March 1975, she had two years from that date to bring her claims against A.D. See Tex. Civ. Prac. & Rem.Code Ann. § 16.001 (Vernon Supp.1997). L.C. did not bring her claims within that time. Instead, she asserted delayed discovery of her causes of action.

The discovery rule is a plea in confession and avoidance; thus, the party seeking to avail itself of the discovery rule must plead it. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex.1988). After our initial opinion in this case issued, the supreme court has held that the discovery rule may apply in cases involving allegations of childhood sexual abuse, but that such a determination must be made on a case by ease basis. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996).² If the discovery rule applies, it delays accrual of a cause of action until the plaintiff discovers, or through the exercise of reasonable care and diligence should have discovered, the nature of the injury. See Moreno, 787 S.W.2d at 351. A party need not know the details of the evidence by which to establish the cause of action. Martinez v. Humble Sand & Gravel, Inc., 940 S.W.2d 139, 143 (Tex.App. — El Paso 1996, writ granted). It is enough that the party knows a cause of action exists in his or her favor. Martinez, 940 S.W.2d at 143. “‘Discovery’ ... occurs when a plaintiff had knowledge of such facts as would cause a reasonably prudent person to make an inquiry that would lead to discovery of the cause of action.” Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App. — Dallas 1992, writ denied). Thus, the discovery rule expressly mandates that the plaintiff exercise reasonable diligence to discover facts concerning the acts or omissions. See Martinez, 940 S.W.2d at 143 (citing Willis, 760 S.W.2d at 644). To prevail at summary judgment on the affirmative defense that the statute of limitations has run, the movant must show that there is no genuine issue of fact that the nonmovant discovered, or through the exercise of reasonable diligence should have discovered, the nature of the injury by a certain date and suit was not filed until more than two years after that date. See Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990).

3. Application of Law to Facts

One of the grounds on which A.D. moved for summary judgment was that even if the discovery rule did apply, L.C. knew or should have known of her claims more than two years before she filed suit. We will assume, without deciding, that the discovery rule applies as urged by L.C. and, therefore, need not conduct the analysis set out in S. V Nevertheless, we conclude that the statute of limitations bars L.C.’s claims.

In support of his motion, A.D. relied on L.C.’s deposition testimony. L.C. testified that she was seeking psychological counseling during the fall of 1988 into January 1989 from Dr. Gorsueh. At that time, she was aware that some of the physical and emotional problems she experienced were attributed by professionals to incest. She further stated that although she had not yet had any flashbacks by July 1989, she was on notice that there might be sexual abuse in her background. In fact, L.C. testified that before she began therapy with Beale-Gan-zhorn, six other therapists had questioned her about sexual abuse or incest, and that she had reason to suspect childhood sexual abuse.

We conclude that A.D.’s summary judgment evidence established that by July 31, 1989, at the latest, L.C. had sufficient information regarding the alleged childhood sexual abuse that would have led a reasonably prudent person to make an inquiry that would have led to the discovery of a cause of action. See Hoover, 835 S.W.2d at 671; see also Martinez, 940 S.W.2d at 143. Accordingly, we conclude that A.D. met his summary judgment burden of establishing that by July 31, 1989, L.C., through the exercise of reasonable care and diligence, should have been aware of the nature of her injuries. See Moreno, 787 S.W.2d at 351; Willis, 760 S.W.2d at 644; Martinez, 940 S.W.2d at 143. Thus, the burden shifted to L.C. to present controverting evidence to raise a fact issue regarding discovery of her cause of action. This she did not do.

L.C. attached her affidavit to her response to A.D.’s motion for summary judgment. In the affidavit, L.C. stated that during the course of therapy in 1989, several therapists asked if she had experienced childhood sexual abuse, but she did not recall anyone mentioning incest. She further stated that because she had not yet experienced any memories, she had no reason to believe she was the victim of sexual abuse or incest. L.C. did not remember her father’s alleged incestuous acts until on or after February 1, 1990, while undergoing therapy with Beale-Ganzhorn.

L.C. also attached Beale-Ganzhorn’s affidavit. In the affidavit, Beale-Ganzhorn stated that she was a psychiatrist who began treating L.C. in July 1989. Beale-Ganzhorn diagnosed L.C. as suffering from PTSD, a mental injury resulting from a psychologically traumatic event outside the range of normal human experience. One aspect of PTSD is repression of the painful memories of the original trauma. During therapy, L.C. began to remember sexual activity with her father. L.C. did not report those memories to Beale-Ganzhorn until after February 1, 1990. •

L.C.’s summary judgment evidence does not controvert the evidence presented by A.D. regarding the July 31, 1989 date. The relevant inquiry is not whether a plaintiff has actual knowledge of the particulars of a cause of action but whether a plaintiff has knowledge of facts which would cause a reasonable person to diligently make an inquiry to determine his or her legal rights. See Martinez, 940 S.W.2d at 143; Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex.App.— Amarillo 1995, writ denied); see also Arabian Shield Dev. Co. v. Hunt, 808 S.W.2d 577, 583 (Tex.App. — Dallas 1991, writ denied). Moreover, because the standard regarding the discovery rule is whether the plaintiff discovered or, through the exercise of reasonable diligence should have discovered, the nature of the injuries, L.C.’s evidence regarding the date she actually remembered A.D.’s acts is immaterial. See Moreno, 787 S.W.2d at 351; Willis, 760 S.W.2d at 644.

Thus, we conclude the summary judgment evidence established as a matter of law that L.C. discovered or, through the exercise of reasonable diligence should have discovered, the nature of her injuries by July 31, 1989. Because L.C. did not bring her claims until December 24, 1991, more than two years after that date, the statute of limitations bars them. The trial court did not err in granting summary judgment on AD.’s second ground. Accordingly, we overrule the second point of error. Because of our disposition of point of error number two, we need not address the first and third points of error. See Tex. R.App. P. 90(a).

We affirm the trial court’s judgment.

LAGARDE and JAMES, JJ., concurring and dissenting.

1 . Effective June 15, 1995, the legislature added section 16.0045 to the Texas Civil Practice and Remedies Code. Section 16.0045 provides that a suit for injuries arising from conduct that violates section 22.011 of the Texas Penal Code (sexual assault) or section 22.021 of the Texas Penal Code (aggravated sexual assault) must be brought within five years from the date of accrual. Section 16.0045 does not apply to L.C.'s case.

2 . S.V. v. R.V. involved an appeal following the trial court's granting of a directed verdict.