# Cole v. Shults-Lewis Child & Family Services, Inc.

> Indiana Court of Appeals · March 18, 1997 · 677 N.E.2d 1069

URL: https://www.frixlaw.com/law-library/cases/9732880

## Case

- **Full name:** Michelle COLE as Personal Representative of the Estate of Jane F. Doe, and Jane I. Doe, Appellants-Plaintiffs, v. SHULTS-LEWIS CHILD AND FAMILY SERVICES, INC., Appellee-Defendant
- **Court:** Indiana Court of Appeals
- **Decided:** March 18, 1997
- **Citations:** 677 N.E.2d 1069; 1997 Ind. App. LEXIS 177; 1997 WL 118240
- **Precedential status:** Published
- **Opinion:** Concurring in part by Darden
- **Judges:** Darden, Rucker, Sharpnack
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9732880

## Opinion text

DARDEN, Judge,
dissenting in part and concurring in part.
I concur in the result reached by the majority regarding Jane F. Doe; however, I respectfully dissent from the majority in the result reached regarding Jane I. Doe.
Specifically, I disagree with the majority’s interpretation and application of the holding in Fager v. Hundt, 610 N.E.2d 246 (Ind.1993). The majority relies thereon to conclude that because Jane I. Doe’s presented expert opinion indicating (1) repressed memory is scientifically valid, and (2) her normal powers of perception and recollection had been obscured by repressed memory as a result of sexual abuse by one acting in loco parentis, she established fraudulent concealment sufficient to have prevented her from commencing the action within the two-year grace period provided in Ind.Code 34-1-2-5.
My reading of Fager differs. For its rationale in Fager , our supreme court began with the equitable doctrine of fraudulent concealment, which “estop[s] a defendant from asserting the statute of limitations “when he has, either by deception or by a violation of duty, concealed from the plaintiff material facts thereby preventing the plaintiff from discovering a potential cause of action.’ ” 610 N.E.2d at 251 (citations omitted). As this quotation and the authorities on which it relies make clear, the availability of the doctrine is determined by an examination of the defendant’s conduct. The court, in discussion of summary judgment granted to the father in an action by his adult daughter fifteen years after she attained the age of majority and approximately twenty-two years after her alleged sexual abuse by her father, first observed that the daughter “did not present specific facts showing that her lack of memory resulted from a concealment caused by [the father’s] deception or breach of duty.” Fager at 252 . After this, the court noted that daughter “submitted no affidavits or depositions of qualified witnesses providing expert opinion to support the scientific validity of repressed memory and to establish that her normal powers of perception and recollection had been obscured by the phenomenon as a result of her father’s sexual acts with her.” Id.
The majority would use the court’s reference to expert witness testimony as establishing the evidence which is necessary to establish fraudulent concealment, in effect making the production of evidentiary support for one’s suffering from repressed memory as the result of parental sexual abuse to per se excuse one from commencing the action within two years of adulthood so long as one exercises diligence in bringing the action after discovery. Thus, despite Fager’s use of the doctrine of fraudulent concealment which requires an examination of the conduct of the *1077 defendant, the majority looks at facts concerning the plaintiff.
However, after the above discussion in Fager , our supreme court proceeded to hold that the daughter’s “failure to respond to the summary judgment motion with specific facts showing the fraudulent concealment exception,” id., was not determinative because a new rule of law was being issued in Fager . Thereafter, our supreme court directed the father’s motion for summary judgment to be determined after development of material facts as to “whether the [father’s] conduct, by deception or violation of duty, operated to conceal material facts from the [daughter], preventing her from commencing the action within the two-year grace period_” Id. at 253 .
I cannot ignore the repeated references in Fager to the critical question of whether the defendant’s conduct, by deception or violation of duty, operated to conceal material facts from the plaintiff. I read Fager to require Jane I. Doe to have shown by designated evidence that the defendants in some manner engaged in deception or violated a duty thereby creating an inference that they concealed from her material facts which prevented her from discovering her potential cause of action. I find no such evidence and would, therefore, affirm the trial court in the matter of Jane I. Doe as well as Jane F. Doe.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732880. Public record. Not legal advice.