449 S.W.3d 856
Tex. App.2014Background
- In Dec. 2011 Brian Bertrand sued his father John and step‑mother Andrea for childhood sexual abuse (alleged abuse beginning in 1993) and related torts; suit not filed until Dec. 2011.
- Plaintiff’s live pleadings admitted he knew of the abuse as a child, confronted his mother about it in the late 1990s/2001–2002, and turned 18 in Aug. 2002.
- Defendants moved for traditional summary judgment arguing all claims were barred by the applicable limitations periods (five years for claims arising from childhood sexual abuse).
- Defendants submitted affidavits and relied on plaintiff’s judicial admissions and testimony that he disclosed the abuse to a therapist and friend in 2003.
- Plaintiff argued the discovery rule delayed accrual until a 2010 PTSD diagnosis and asserted fraudulent concealment/equitable estoppel; he also challenged exclusion of his experts for inadequate Rule 194 disclosures.
- Trial court granted summary judgment for defendants and excluded plaintiff’s expert testimony; on appeal plaintiff’s supporting exhibits and some summary‑judgment evidence were not in the appellate record, and oral argument was submitted on briefs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims were barred by limitations | Bertrand: discovery rule delayed accrual until PTSD diagnosis (2010) so suit filed within limitations | John/Andrea: Bertrand’s admissions and 2003 disclosures show he knew injury and cause; limitations began at majority (Aug 2002) | Held: Defendants met burden; discovery rule inapplicable; claims barred (accrued by June 2003 at latest) |
| Whether fraudulent concealment / equitable estoppel tolled limitations | Bertrand: John fraudulently concealed nature/source of injury, estopping reliance on limitations | Defendants: summary‑judgment record negates tolling; plaintiff must present evidence raising fact issue | Held: Plaintiff failed to present admissible controverting evidence in appellate record; no estoppel established |
| Whether exclusion of plaintiff’s experts was reversible (sanction "death penalty") | Bertrand: striking experts deprived him of necessary proof on discovery rule and was excessive | Defendants: Plaintiff failed proper Rule 194 disclosures; sanction was within trial court discretion | Held: Even if exclusion erred, plaintiff did not show harm—he did not rely on expert evidence in response and record lacks supporting evidence |
| Procedural challenges to orders and costs | Bertrand: proposed orders signed without proper local‑rule notice; trial court failed to rule on various motions; award of all costs inequitable | Defendants: local‑rule noncompliance does not void orders; court properly awarded costs to prevailing parties | Held: Local rule violation did not void judgments; costs award was proper and within discretion; no reversible error as to unruled motions |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (standard of review for summary judgment)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary‑judgment burden and proof)
- S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (legal‑injury rule accrual)
- Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194 (Tex. 2011) (when cause of action accrues)
- HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) (discovery rule defers accrual until knowledge of facts)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) (discovery‑rule limits: inherently undiscoverable and objectively verifiable)
- Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001) (definition: inherently undiscoverable)
- Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998) (accrual may be decided as matter of law)
- Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990) (appellant’s burden to present complete record to show error)
- Borderlon v. Peck, 661 S.W.2d 907 (Tex. 1983) (fraudulent concealment/equitable estoppel bars reliance on statute of limitations)
- KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (burden to raise fact issue on affirmative defenses in response to summary judgment)