dario-rendon-jr-jaun-johnny-rendon-rudy-rendon-daniel-rendon ( 2001 )

RENDON V. ROMAN CATHOLIC DIOCESE NO. 07-01-0125-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 14, 2001 ______________________________

DARIO RENDON, Jr., JUAN RENDON, RUDY RENDON, DANIEL RENDON, and RODNEY RENDON,

Appellants

v.

ROMAN CATHOLIC DIOCESE OF AMARILLO, MOST REVEREND LEROY T. MATTHIESEN, HIS PREDECESSORS AND SUCCESSORS, AS BISHOP OF THE ROMAN CATHOLIC DIOCESE OF AMARILLO; ROMAN CATHOLIC DIOCESE OF LUBBOCK; MOST REVEREND PLACIDO RODRIGUEZ, HIS PREDECESSORS AND SUCCESSORS, AS BISHOP OF THE ROMAN CATHOLIC DIOCESE OF LUBBOCK, AND ARCHBISHOP MICHAEL J. SHEEHAN, PRESENTLY ARCHBISHOP OF THE DIOCESE OF SANTA FE, NEW MEXICO, AND FORMERLY THE BISHOP OF THE ROMAN CATHOLIC DIOCESE OF LUBBOCK

Appellees _________________________________________________

FROM THE 286th DISTRICT COURT OF HOCKLEY COUNTY;

NO. 95-06-16181A; HON. ANDY KUPPER, PRESIDING _______________________________

BEFORE, BOYD, C.J., QUINN, AND REAVIS, J.J.

Dario Rendon, Jr., Juan Rendon, Rudy Rendon, Daniel Rendon, and Rodney Rendon (the Rendon children) appeal from a final summary judgment granted in favor of the Roman Catholic Diocese of Amarillo, the Roman Catholic Diocese of Lubbock, Most Reverend Leroy T. Matthiesen, Bishop of the Roman Catholic Diocese of Amarillo and his predecessors and successors, Most Reverend Placido Rodriquez, Bishop of the Roman Catholic Diocese of Lubbock, and his predecessors and successors, and Michael J. Sheehan, Archbishop of the Diocese of Santa Fe, New Mexico and formerly the Bishop of the Roman Catholic Diocese of Lubbock (collectively referred to as the Church). They contend, through four issues, that the trial court erred in granting the judgment. We disagree and affirm same.

Background

The dispute concerns the sexual assault of Father Howell, a Roman Catholic priest, upon the Rendon children, who were minors and Catholic parishioners at the time. According to the summary judgment evidence, the assaults occurred in the late 1970's and early 1980's. In the Fall of 1986, the father of the boys, Dario Rendon Sr.,(Rendon Sr.) informed Bishop Sheehan, then bishop of the Roman Catholic Diocese of Lubbock, of the acts. Bishop Sheehan informed Rendon Sr. that he would "take action to take care of the matter." The record does not disclose whether the two individuals ever broached the topic again. However, in 1995, suit was filed against the Church and the estate of Father Howell because they believed that Bishop Sheehan failed to "take action" as represented. The Church moved for summary judgment, alleging, among other things, that limitations had long since passed. The trial court granted the motion without specifying the particular ground upon which it acted. ⁽¹⁾

Standard of Review

The standard by which we review summary judgments is well-known and need not be repeated. Instead, we simply refer the parties to Rule 166a of the Texas Rules of Civil Procedure, Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) and Nixon v. Mr. Property Management Co. Inc., 690 S.W.2d 546 (Tex. 1985) (involving the standard generally applicable to summary judgments).

Limitations -- Estoppel

The Rendon children did not dispute that limitations would have run on each of their causes of action unless their claims were preserved through some theory of law. The theory asserted below and urged on appeal is estoppel. Simply put, they contend that misrepresentations uttered by Bishop Sheehan, while Bishop of the Lubbock Diocese, induced them to forego suit. Those misrepresentations consisted of the Bishop supposedly informing Rendon, Sr. that "the Church would take care of the Boys, protect the other children from Father Howell, and that legal action would be unnecessary." None of the affidavits executed by the Rendon children and tendered to the trial court as summary judgment evidence illustrate that the Rendon children heard the purported misrepresentations said to their father or that they were present when the utterances were made. Furthermore, that portion of the Rendon Sr. affidavit supposedly evincing the misrepresentations consists of the italicized passages in the following quotation:

In the fall of 1986, I [Rendon Sr.] discussed with Bishop Sheehan the revelations that Father Rodney Howell had sexually abused some of my sons while he served as a servant of the Diocese of Amarillo, under the direction of Bishop Matthiesen, and the Diocese of Lubbock. He told me that he would take action to take care of the matter. Because I trusted the Roman

Catholic Church and its Bishops, I believed that Bishop Sheehan would take the necessary actions and that no legal action on my part would be necessary.

(Emphasis added).

It is beyond dispute that estoppel may be invoked to defeat a claim of limitations. Furthermore, it may be invoked in two ways. For instance, a potential defendant's concealment of facts from a plaintiff which facts are necessary for the plaintiff to know to pursue a cause of action may prove fatal to the defense of limitations. Leonard v. Eskew, 731 S.W.2d 124, 128 (Tex. App.--Austin 1987, writ ref'd. n.r.e.). So too may one defeat a limitations defense by establishing that the defendant engaged in conduct that induced the plaintiff to forego a timely suit regarding a cause of action that the plaintiff knew existed. Id. It is the latter means 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 must have presented some evidence illustrating that those sued utilized words or conduct to induce them into delaying suit beyond the time permitted by statute, unmixed with any want of diligence on their part. Palais Royal, Inc. v. Gunnells, 976 S.W.2d 837, 849 (Tex. App.--Houston [1st Dist.] 1998, pet. dism'd. by agr.); Leonard v. Eskew, 731 S.W.2d at 129. Implicit in this test are the requirements that the plaintiffs knew they had a cause of action, that the cause of action had accrued at the time the inducement occurred, and that their initial and continued reliance upon the original inducement was reasonable. Leonard v. Eskew, 731 S.W.2d at 129. As explained in Leonard, a plaintiff must not have "'blindly relied upon a situation as being what it seemed rather than as being what it in reality was.'" Id., quoting, Neal v. Pickett, 280 S.W. 748 (Tex. Comm. App. 1926, jdgmt adopted). Moreover, the conduct or words undertaken by the prospective defendant must "amount[] to an affirmative inducement to delay bringing the action." Ladd v. Knowles, 505 S.W.2d 662, 669 (Tex. App.--Amarillo 1974, writ ref'd. n.r.e.).

In applying the foregoing law to the summary judgment at bar, we turn to the affidavit executed by Rendon Sr. wherein the latter allegedly reiterates the words of Bishop Sheehan. Upon doing so, we immediately see that Bishop Sheehan said nothing about the Church "protect[ing] the other children from Father Howell, and that legal action would be unnecessary." In suggesting otherwise, the Rendon children were mistaken. Rather, it is Rendon Sr. who says that he (Rendon Sr.) "believed that Bishop Sheehan would take the necessary actions and that no legal action on my part would be necessary." More importantly, all that Bishop Sheehan uttered, according to the affidavit was that he (the bishop) "would take action to take care of the matter."

The nature of the action that Bishop Sheehan purportedly intended to take went unmentioned. Similarly unmentioned is any statement suggesting, much less illustrating, that the two discussed the possibility of the Rendons initiating suit against anyone or that the "legal action" which Rendon Sr. concluded was unnecessary involved a civil suit or a criminal complaint. Nor did Rendon Sr. state that he informed Bishop Sheehan that he thought the Rendon children or any other member of the Rendon family sought or needed redress of any kind because of the alleged assault. Again, Rendon Sr. simply stated that he revealed to the bishop that Father Howell had sexually abused some of the Rendon children.

Again, we required, in Ladd, that the conduct or words allegedly heard by the plaintiff evince "affirmative inducement to delay bringing [an] action." Without evidence that anything more than the mere disclosure of criminal conduct occurred between Rendon Sr. and Bishop Sheehan, without reference to a discussion about a claim, suit, redress or compensation of any kind, we lack sufficient evidentiary foundation from which to reasonably infer that a promise to "take action" comprised inducement to delay initiation of a civil suit. See Roth v. FFP Operating Partners, 994 S.W.2d 190, 197 (Tex. App.-Amarillo 1999, pet. denied) (stating that a vital fact may not be deduced by inferring from inferences). To paraphrase Leonard and Neal, we must view the evidence not "'as being what it seemed rather than as being what it in reality was.'" Here, in reality, the record fell short of containing any evidence illustrating the presence of each element of estoppel. Accordingly, at least one viable ground for summary judgment appears of record and prevents us from holding that the trial court erred.

We affirm the summary judgment executed below.

Brian Quinn

Justice

Publish.

1. The trial court severed the allegations against the Church from those levied against the Estate of Father Howell.

h Dist.] 1998, pet. denied).

          We review a trial court’s dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs for abuse of discretion. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.–Corpus Christi 2001, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably in light of all of the circumstances in the case or, stated another way, when the trial court acts without reference to any guiding rules and principles. Id.

          In the present case, the trial court dismissed Harrison’s suit due to “Plaintiff’s violation of Chapter Fourteen of the Texas Civil Practice and Remedies Code.” In their motion to dismiss, the defendants sought dismissal of Harrison’s lawsuit on the basis of his failure to comply with the affidavit or unsworn declaration of prior filings requirement of section 14.004, his failure to timely file his suit within 31 days after receiving written notice of decision from the grievance system under section 14.005(b), and because the claims Harrison asserted in his suit were frivolous or malicious. Our review of the trial court’s dismissal of Harrison’s suit will address only the sufficiency of Harrison’s affidavit of previous filings, as the insufficiency of this filing pretermits consideration of other bases for the trial court’s dismissal under Chapter 14.

          Harrison’s affidavit identifies that he had only filed two previous pro se suits that he had a duty to disclose under section 14.004. Harrison’s identification of a prior suit against Northwest Texas Healthcare Systems indicates that he sought relief for gross negligence under the Texas Medical Liability and Insurance Improvement Act. The other prior filing identified by Harrison indicates that, at some time in 2003 or 2004, he filed a claim against “agents and servant[s]” of the TDCJ-ID for “assault and battery negligence by a TDCJ correctional officer at the Bill Clements unit . . . .” Neither of these identifications state the operative facts for which relief was sought, rather, they state only the legal theory upon which relief was sought. Based on the information contained in his affidavit, it was impossible for the trial court to determine whether the claims alleged in Harrison’s current suit were duplicative of his earlier filings. Because the trial court was unable to determine if Harrison’s present suit was substantially similar to previous suits filed by Harrison, the trial court was entitled to assume the current suit is substantially similar to those prior filings and, therefore, is frivolous or malicious. See Samuels, 11 S.W.3d at 406; Bell, 962 S.W.2d at 158. Thus, the trial court did not abuse its discretion by dismissing Harrison’s suit. See Thomas, 52 S.W.3d at 295.

          We further conclude that the fact that Harrison’s affidavit indicated that his prior filings were asserted against different defendants is of no import. The trial court was justified to assume that Harrison may have filed separate lawsuits against different defendants arising from the same operative facts. See White v. State, 37 S.W.3d 562, 565 (Tex.App.–Beaumont 2001, no pet.). Since the trial court can dismiss a claim as frivolous or malicious if it is substantially similar to a previous claim filed by the same inmate because the claim arises from the same operative facts, see § 14.003(b)(4), we affirm the trial court’s judgment.

Post-Judgment Filings

          We note that Harrison’s Motion for New Trial did not amend or supplement his affidavit of previous filings and, thus, the trial court did not abuse its discretion in denying same. As for Harrison’s request for findings of fact and conclusions of law, the record does not reflect that Harrison filed a Notice of Past Due Findings of Fact and Conclusions of Law, as required by Rule 297 of the Texas Rules of Civil Procedure.

Conclusion

          For the foregoing reasons, we affirm the trial court’s order of dismissal.

                                                                           Mackey K. Hancock

                                                                                     Justice