          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
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

                                     3
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

                                      4
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.


                                     5
   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.

                                      6
   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

                                      7
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

                                      8
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.




                                       9
