BY THE COURT
standard of review relating to summary judgment is discussed
allegation that a plaintiff's claim is barred by the
statute of limitations must be pled by a defendant as an
limited exception, a tort action in Kansas is not deemed to
accrue until the act giving rise to the cause of action first
causes substantial injury, or if the fact of injury is not
reasonably ascertainable until some time after the initial
act, then the period of limitation shall not commence until
the fact of injury becomes reasonably ascertainable to the
construing the statute of limitations for tort actions, the
phrase "substantial injury" means "actionable
injury." The true test to determine when an action
accrues is that point in time at which plaintiff could first
have filed and prosecuted an action to a successful
state a claim for negligence upon which relief can be
granted, a plaintiff must plead the following essential
elements: (1) a legal duty owed by the defendant to the
plaintiff; (2) a breach of that legal duty; (3) the breach of
that legal duty caused plaintiff injury; and (4) the
plaintiff sustained damages as a result of the injury.
Because a cause of action does not accrue until all of the
essential elements are satisfied, an injury allegedly caused
by a defendant's negligence does not become actionable
until the plaintiff sustains damages as a result of the
phrase "reasonably ascertainable" requires
application of an objective standard that takes into account
all of the surrounding circumstances.
from Rice District Court; Steven E. Johnson, judge. Affirmed
in part, reversed in part, and remanded with directions.
B. Stull and Josh V.C. Nicolay, of Stull, Beverlin, Nicolay
& Haas, LLC, of Pratt, for appellants.
Jeffrey C. Baker, William P. Denning, and Kaitlin M.
Marsh-Blake, of Sanders Warren & Russell LLP, of Overland
Park, for appellee.
Malone, C.J., Standridge, J., and Hebert, S.J.
question presented on appeal is whether the applicable
statute of limitations precludes James W. Falen, in his
capacity as Sole Trustee of The James W. Falen Living Trust
U/A dated April 30, 2007; Julie D. Falen; Gregory A. Falen;
and Maryl M. Wesolowski (the Falens) from pursuing claims of
negligence, breach of implied contract, and breach of
fiduciary duty against Rice County Abstract & Title
Company, Inc. (RCAT). The district court answered this
question in the affirmative and, accordingly, entered summary
judgment in favor of RCAT. We agree with the district court
with regard to the Falens' claim alleging breach of
implied contract. But we find the statute of limitations does
not prevent the Falens from pursuing their claims of
negligence and breach of fiduciary duty. As such, we reverse
the summary judgment in favor of RCAT on those two claims and
remand so the case can proceed accordingly.
and Procedural Background
LCL, LLC (LCL) originally filed this lawsuit against the
Falens seeking to quiet title to an undivided one-half
interest in mineral rights associated with 203.2 acres of
surface farmland in Rice County, Kansas (the subject
property). The Falens filed a counterclaim against LCL
seeking to quiet title to those same mineral rights, but in
their favor. The Falens also filed a third-party lawsuit
against RCAT for negligence, breach of implied contract, and
breach of fiduciary duty. The underlying suit and
counterclaim seeking to quiet title ultimately settled. At
that point, RCAT filed a motion for summary judgment in the
third-party lawsuit based on the statute of limitations.
After the motion was briefed, the court granted summary
judgment to RCAT, ruling that the Falens were precluded from
pursuing the claims alleged in the suit because the statute
of limitations on each of them already had expired.
the district court granted summary judgment based solely on
procedural grounds-the applicable statute of limitation
precludes each of the claims asserted-the underlying merits
of the Falens' claims of negligence and breach of implied
contract are not issues on appeal. Nevertheless, a brief
chronology of relevant facts in the record is helpful to our
analysis of the procedural issue presented for decision.
• In 1971, Mary Louise Falen and James C. Falen (husband
and wife) granted to Mary Louise's brother, John Weber,
an undivided one-half ownership interest to minerals
associated with the subject property.
• In 1982, Mary Louise (now a single person) and John
and Moralee Weber, each owning an undivided one-half interest
to minerals associated with the subject property, signed an
Oil and Gas Lease in favor of Bert J. Fisher. The 1982 Oil
and Gas Lease granted Fisher the right to use the subject
property to discover and extract minerals for a term of years
in exchange for royalty payments in equal proportion to Mary
Louise and John and Moralee consistent with their ownership
rights to the minerals in the subject property.
• In 1992, Mary Louise created the Mary Louise Falen
Trust (MLF Trust), naming Gregory A. Falen and Julie D. Falen
as co-trustees. At some point between 1992 and 2007, Mary
Louise transferred into the MLF Trust the entire surface of
the subject property and an undivided one-half interest in
• On June 1, 2007, the MLF Trust entered into a listing
agreement with Farmer's National Company to sell the
surface land of the subject property. The listing agreement
provided that "'[a]ll minerals currently owned by
the seller will be retained as long as minerals are produced
and for a period of 20 years after production has
ceased.'" An advertising brochure was produced for
the property and ...