J. Paul Caver v. Cynthia Clayton

Affirmed and Opinion filed February 18, 2021.
In the
Fourteenth Court of Appeals
NO. 14-18-00160-CV
J. PAUL CAVER, Appellant
v.
CYNTHIA CLAYTON, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2014-65040
OPINION
The issue in this appeal is whether the discovery rule applies to common-law
civil-assault claims. Appellant J. Paul Caver appeals the trial court’s judgment
denying his motion for directed verdict and motion for judgment notwithstanding
the verdict on the basis that appellee Cynthia Clayton’s assault claims were barred
by the statute of limitations and Clayton did not meet her burden of establishing
the application of the discovery rule. We affirm.
I. BACKGROUND
Caver was at one time married to Clayton’s daughter. In September 2014,
Mother’s daughter filed for divorce from Son-in-Law. During the pendency of the
divorce, Mother learned that Son-in-Law had made statements that he and Mother
had sex. Believing those statements to be defamatory, Mother filed suit against
Son-in-Law alleging defamation as her only cause of action. Son-in-Law asserted
truth as an affirmative defense and gave testimony in a deposition as part of his
divorce proceeding in which he provided specific details of the sexual encounter.
As a result, Mother amended her petition in April 2015, alleging four causes of
action: libel; slander; assault/sexual assault causing bodily injury; and
assault/sexual assault based upon offensive physical contact. Mother’s defamation
claims were non-suited on the record just before trial.
Mother’s claims of assault and sexual assault were tried to a jury.
Son-in-Law testified that he and Mother had sex once in 2003. Son-in-Law recalls
being at Mother’s home and Mother flirting with him. Son-in-Law recalls Mother
got sick that evening but does not recall Mother passing out or losing
consciousness because of her illness. Several hours later, Son-in-Law entered the
guest bedroom to check on Mother. He testified that in light of their behavior that
night he believed she consented to his entry of the room and kissing her on the lips
and touching her genitals. He did not recall any verbal communication between the
two at the time.
Son-in-Law testified he returned to the guest room and kissed Mother again.
He recalled that Mother responded in a manner that invited further contact. He then
recalls climbing on top of her and having sex. While he does not recall whether
there was any verbal communication during this encounter, he testified that Mother
was an active participant and behaved in a manner consistent with consent. He
2
further testified that the next morning she approached him and stated “I don’t
remember anything from last night” in such a way that he understood he was not to
speak of the incident again.
Mother testified that she was unaware of the alleged sexual encounter when
it occurred and did not learn of the incident until her daughter’s and Son-in-Law’s
divorce. Mother testified at trial that she was able to pinpoint the night of the
sexual encounter because Son-in-Law mentioned she had been sick and that night
was the only time she had been sick. Her last memory of the evening is vomiting in
the toilet and waking up the next morning in the guest room.
After Mother rested, Son-in-Law moved for a directed verdict on the basis
that the statute of limitations had run and the discovery rule did not apply. The trial
court denied Son-in-Law’s motion. After a three-day trial, eleven jurors reached a
verdict finding that Son-in-Law committed assault, but not sexual assault. The jury
also determined that Mother had no reason to know of the assault until 2015 and
awarded $92,000 in damages to Mother.
Son-in-Law filed a motion for judgment notwithstanding the verdict. The
trial court denied the motion, and signed a final judgment on the verdict. Son-in-
Law filed a motion to modify or reform the final judgment and motion to disregard
the verdict, which was denied by operation of law. Son-in-Law timely filed this
appeal.
II. ANALYSIS
Son-in-Law raises a single issue on appeal, asserting the trial court erred in
denying Son-in-Law’s motion for directed verdict and motion for judgment
notwithstanding the verdict because Mother’s assault claim was barred by the
two-year statute of limitations. Son-in-Law argues (1) the discovery rule is not
3
applicable to claims of common-law civil assault and (2) Mother’s injury was not
objectively verifiable such that the discovery rule is applicable to her claim.
In appealing the denial of a motion for directed verdict and a motion for
judgment notwithstanding the verdict, Son-in-Law in effect challenges the legal
sufficiency of the evidence. See Fein v. R.P.H., Inc., 68 S.W.3d 260, 265 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied). The test for legal sufficiency is the
same for summary judgments, directed verdicts, judgments notwithstanding the
verdict, and appellate no-evidence review. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We must view the evidence in the light most favorable to the
verdict, crediting favorable evidence if reasonable jurors could do so and
disregarding contrary evidence unless reasonable jurors could not. See id. at 827.
Jurors are the only judges of witness credibility and the weight to give their
testimony. Id. at 819. To sustain a challenge to the legal sufficiency of the evidence
supporting a jury finding, the reviewing court must find that (1) there is a complete
lack of evidence of a vital fact; (2) the court is barred by rules of law or evidence
from giving weight to the only evidence offered to prove a vital fact; (3) there is no
more than a mere scintilla of evidence to prove a vital fact; or (4) the evidence
conclusively established the opposite of a vital fact. Volkswagen of Am., Inc. v.
Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).
A. Application of the discovery rule
Claims of common-law civil assault are subject to a two-year statute of
limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (party must bring
suit for personal injury not later than two years after day cause of action accrues).
The parties do not dispute that the alleged assault occurred in 2003, more than ten
years before Mother filed the underlying lawsuit. Therefore, Mother relied upon
the application of the discovery rule to toll the accrual of her civil-assault claim.
4
The statute of limitations begins to run when a claim accrues. See Murray v.
San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). A cause of action
accrues when facts come into existence that permit a plaintiff to recover. Exxon
Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017). Generally, in the
context of a tort, this is when a wrongful act causes an injury. See Sw. Energy
Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016) (“As a general
proposition, a cause of action accrues when a wrongful act causes a legal injury,
even if the fact of injury is not discovered until later . . . .”); Murray, 800 S.W.2d at
828.
The discovery rule is a doctrine that creates an exception to the general
accrual rule. Childs v. Haussecker, 974 S.W.2d 31, 36–37 (Tex. 1998). The
discovery rule has been applied in situations when it is otherwise difficult for the
injured party to learn of the wrongful act. S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.
1996). In cases not involving fraud or fraudulent concealment, the discovery rule
will apply only when “the nature of the injury incurred is inherently
undiscoverable and the evidence of injury is objectively verifiable.” Id. at 6; see
Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001). These two
elements attempt to strike a balance between the policy underlying statutes of
limitations (barring stale claims) and the objective of avoiding an unjust result
(barring claims that could not be brought within the limitations period). See S.V.,
933 S.W.2d at 6; see also Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977).
When the discovery rule applies, the cause of action accrues when a reasonably
diligent and careful plaintiff knows or should have known of the wrongful act and
injury. See Haussecker, 974 S.W.2d at 37.
B. Is the discovery rule applicable to claims of civil assault?
Son-in-Law argues that no Texas court has ever applied the discovery rule to
5
a common-law civil assault claim and that at least one court has held that the
discovery rule does not apply to common-law assault. See Brothers v. Gilbert, 950
S.W.2d 213 (Tex. App.—Eastland 1997).
At the outset, we note that Brothers v. Gilbert is not controlling precedent
for this court. See id. Further, in holding that the discovery rule is not applicable to
claims of common-law assault, the Eleventh Court of Appeals did not address
precedent from the supreme court and instead cited to Sanchez v. Archdiocese of
San Antonio, 873 S.W.2d 87, 90 (Tex. App.—San Antonio 1994): “An exception
to the statute of limitations has been created by case law in situations where the
claimant was unable to know of [the] injury at the time of its accrual; this
exception is known as the discovery rule.” Brothers, 950 S.W.2d at 216. 1 Brothers
involved instances of sexually offensive harassment in the workplace, including
offensive physical touching. It was undisputed that the victim was aware of the
nonconsensual contact when it occurred. Id. The court held that the victim’s assault
claims were barred by the statute of limitations, stating: “[t]he ‘discovery rule’ is
not applicable to claims of common-law assault.” Id. We think this categorical
statement too broad given the circumstances of that case, and to the extent
Brothers can be construed as holding that, in all circumstances, a claimant must
necessarily be aware of physical contact or injury when it occurs, Brothers is not
binding on us, and we respectfully disagree.
The supreme court has held the application of the discovery rule does not
focus on specific causes of action, rather it focuses on types of injury. Via Net v.
TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006). “[A]pplication has been permitted
1
In Sanchez, the Fourth Court of Appeals held the discovery rule did not apply to claims
by a 57-year-old woman of sexual abuse committed by a nun when the claimant was a minor.
873 S.W.2d at 91. The court’s decision was predicated on the undisputed fact that the claimant
was aware of the abuse when it occurred. Id. at 90.
6
in those cases where the nature of the injury incurred is inherently undiscoverable
and the evidence of injury is objectively verifiable.” Computer Assocs. Int’l, Inc. v.
Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). The discovery rule has been applied
to a variety of causes of action and situations including medical malpractice, legal
malpractice, a suit for alienation of affection, and a false and libelous credit report
that was unsuspected until the claimant was refused credit. See S.V., 933 S.W.2d at
5 (providing list of situations in which discovery rule has been applied). Though
noting that applications of the discovery rule should be “few and narrowly drawn,”
the supreme court has also confirmed that the discovery rule should be applied in
the same manner to cases involving sexual assault, as it would apply to any other
case. Id. at 22, 25–26.
We conclude that the discovery rule is applicable to a civil-assault cause of
action provided that “the nature of the injury incurred is inherently undiscoverable
and the evidence of injury is objectively verifiable.” Computer Assocs., 918
S.W.2d at 456; see S.V., 933 S.W.2d at 4–5.
C. Was Mother’s injury objectively verifiable?
Mother had the burden to prove that the discovery rule applied to her claim
by establishing that her injury was both inherently undiscoverable during the
limitations period and objectively verifiable. See Barker v. Eckman, 213 S.W.3d
306, 312 (Tex. 2006). The law in Texas is well-settled that an injury is inherently
undiscoverable if it is the type of injury that is not generally discoverable by the
exercise of reasonable diligence during the prescribed limitations period. See HECI
Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998); BP Am. Prod. Co. v.
Marshall, 342 S.W.3d 59, 66 (Tex. 2011). In this appeal, Son-in-Law does not
dispute the discoverability of the injury; in question is whether the injury is
objectively verifiable. Therefore, we assume without deciding that Mother met her
7
burden in demonstrating her injury was inherently undiscoverable during the
limitations period.
On appeal, Son-in-Law alleges that Mother failed to meet her burden in
demonstrating her injury was objectively verifiable. He argues that both
requirements of the discovery rule are decided on a categorical basis, i.e., whether
the type or class of injury qualifies rather than the case-specific injury. Therefore,
he argues that the discovery rule was not available to Mother due to the type of her
alleged injury.
Son-in-Law cites to three primary cases for his contention that the
requirement of objective verifiability is decided on a categorial basis. Shell Oil Co.
v. Ross, 356 S.W.3d 924, 930 (Tex. 2011); Via Net, 211 S.W.3d at 314;
Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653 (Tex. 2000).2 However, the
cases he cites focus on the question of whether the injury is inherently
undiscoverable. See Via Net, 211 S.W.3d at 314 (whether injury is inherently
undiscoverable is legal question “decided on a categorical rather than case-specific
basis; the focus is on whether a type of injury rather than a particular injury was
discoverable”); Ross, 356 S.W.3d at 930 (“The legal question of whether an injury
is inherently undiscoverable is determined on a categorical basis.”). It is well-
settled law that the requirement for determining whether an injury is “inherently
undiscoverable” is decided on a categorial basis, but that does not aid
Son-in-Law’s argument here. Ross, 356 S.W.3d at 930. None of the cases cited by
Son-in-Law supports his argument that we should disregard Mother’s evidence as
to the objective verifiability of her injury, and categorically dismiss her injury as
2
Ross and Via Net are addressed above. The third case cited by Son-in-Law addresses the
statute of limitations, the discovery rule and the single-action rule in relation to asbestos-related
disease. Pustejovsky, 35 S.W.3d at 653. It is unclear how Pustejovsky supports Son-in-Law’s
theory as the supreme court did not address the requirement of “objective verifiability” and
limited its holding to asbestos-related diseases resulting from workplace exposure. Id.
8
not subject to the discovery rule.
While the supreme court has not always emphasized the requirement of
objective verifiability, it applies this requirement on a case-specific basis. S.V., 933
S.W.2d at 7, 15 (identifying types of evidence sufficient to provide objective
verification of abuse alleged and explaining that expert testimony of plaintiff’s
repressed memories did not meet objective-verifiability requirement); Computer
Assocs., 918 S.W.2d at 456 (“the nature of the injury incurred is inherently
undiscoverable and the evidence of injury is objectively verifiable”) (emphasis
added). The language used by the supreme court in addressing the
objective-verifiability requirement is instructive. Courts look to the evidence—the
case-specific evidence—to determine if the injury or wrongful conduct are
objectively verifiable. See S.V., 933 S.W.2d at 7, 15. If the type or category of the
injury was the end of our inquiry on this requirement, there would be no need to
look at case-specific evidence. Therefore, we conclude that we must analyze
whether Mother’s injury met the requirement for objective verifiability by looking
to the case-specific evidence introduced at trial.
Son-in-Law next argues that even if the discovery rule were available to
Mother, no physical evidence was offered or admitted at trial and “the ‘touching’
of one person by another, without evidence of physical injury, photographs, or a
video recording, is the very definition of an injury that is not objectively
verifiable.” Physical evidence, however, is not the only method by which the
requirement of “objective verifiability” can be satisfied. The supreme court has
held that the type of evidence sufficient to demonstrate the objective-verifiability
requirement includes a confession by the abuser, a criminal conviction,
contemporaneous records or written statements of the abuser such as diaries or
letters, medical records of the person abused showing contemporaneous physical
9
injury resulting from the abuse, photographs or recordings of the abuse, and an
objective eyewitness’s account. S.V., 933 S.W.2d at 15. The objective-verifiability
requirement is also satisfied when the injury is indisputable. Id. at 7. This court has
previously held “[e]vidence of an injury is objectively verifiable if the facts upon
which liability is asserted are demonstrated by direct evidence, expert testimony, or
are otherwise indisputable.” Schlittler v. Estate of Meyer, No. 14-17-00071-CV,
2018 WL 3061124, at *4 (Tex. App.—Houston [14th Dist.] June 21, 2018, no pet.)
(mem. op.).
In order to address Son-in-Law’s contention that Mother presented no
evidence of injury, we look to the jury charge given to determine the definition of
injury in this civil-assault claim. See Osterberg v Peca, 12 S.W.3d 31, 55 (Tex.
2000). The jury was instructed that a person commits an assault if he
“intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens another with imminent bodily injury; or
(3) intentionally or knowingly causes physical contact with another when he knows
or should reasonably believe that the other will regard the contact as offensive or
provocative.”3 As relevant here, assault occurs when there is physical contact with
another and the person knows or should reasonably believe that the other will
regard the contact as offensive or provocative. Son-in-Law is liable for contacts
that are offensive and provocative regardless whether they cause physical harm.
See City of Watauga v. Gordon, 434 S.W.3d 586, 590 (Tex. 2014); Fisher v.
3
The elements of a civil assault mirror those of a criminal assault. See Waffle House, Inc.
v. Williams, 313 S.W.3d 796, 801 n.4 (Tex. 2010). The instruction given to the jury was
substantially similar to the definition of criminal assault in the penal code: an assault occurs if a
person (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the
person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury,
including the person’s spouse; or (3) intentionally or knowingly causes physical contact with
another when the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative. See Tex. Penal Code Ann. § 22.01(a).
10
Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) (“Personal
indignity is the essence of an action for battery; and consequently the defendant is
liable not only for contacts which do actual physical harm, but also for those which
are offensive and insulting.”)4; see also Sanchez v. Striever, No. 14-19-00449-CV,
2020 WL 5637879, at *3 (Tex. App.—Houston [14th Dist.] Sept. 22, 2020, no pet.
h.). Injury in the context of a civil-assault claim includes unwanted, offensive, and
provocative physical contact.
In this case, there was direct and indisputable evidence of physical contact
between Son-in-Law and Mother. Son-in-Law testified that he entered the guest
room in which Mother was sleeping on the night in question. He testified that he
reached under Mother’s robe and touched her genitals. He also testified that he
later returned to the guest room, kissed Mother and then engaged in sex with
Mother. In turn, Mother did not dispute that the physical contact or sexual
encounter occurred. She testified that she did not recall any physical contact, but
that if it did occur, it was not consensual. Mother’s testimony satisfied her burden
of demonstrating that the physical contact with Son-in-Law was offensive and
provocative. The testimony at trial is legally sufficient to support a finding that the
physical contact in question occurred and Mother’s injury is objectively verifiable.
Son-in-Law further argues his testimony only establishes that the contact
was consensual and cannot be used to prove the requirement of objective
verifiability. But Son-in-Law’s testimony establishes that physical contact did
occur, and the jury was not bound by Son-in-Law’s characterization of the physical
contact. City of Keller, 168 S.W.3d at 820 (“It is the province of the jury to resolve
conflicts in the evidence.”). Son-in-Law also argues that he should not have to
4
Texas caselaw uses the terms “assault,” “battery,” and “assault and battery”
interchangeably, and the supreme court has stated it intends no distinctions among these terms.
Waffle House, Inc., 313 S.W.3d at 801 n.4.
11
choose between asserting a statute-of-limitations defense or defending his actions
as consensual. Son-in-Law offers no authority to support this argument, nor did he
seek any limitation instruction on his testimony at trial. Tex. R. Evid. 105(a).
Therefore, Son-in-Law’s testimony at trial was admissible for all purposes. See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000) (court of
appeals properly upheld admissibility of evidence for any purpose when party
failed to request limiting instruction at trial); Gabriel v. Lovewell,
164 S.W.3d 835, 844–45 (Tex. App.—Texarkana 2005, no pet.) (in absence of
limiting instruction, impeachment testimony admissible for all purposes).
Applications of the discovery rule should be “few and narrowly drawn,” and
likewise our holding in this case is confined to the unusual facts presented by the
testimony in this case. S.V., 933 S.W.2d at 25. Because offensive and unwanted
physical contact forms the injury in this civil-assault cause of action, Mother met
her burden in demonstrating her injury is objectively verifiable. We overrule
Son-in-Law’s sole issue on appeal.
III. CONCLUSION
We affirm the trial court’s judgment as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Jewell and Spain.
12