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Doe v. Popravak

Court of Appeals of Kansas

June 9, 2017

John F.M. Doe, Appellant,
v.
Fr. Christopher Popravak, Capuchin Province of Mid-America, Inc., Province of St. Augustine of the Capuchin Order, David Nestler, The Roman Catholic Archdiocese of Kansas City in Kansas, and Archbishop Joseph F. Naumann, Appellees.

         SYLLABUS BY THE COURT

         1. When the defendant files a motion to dismiss the plaintiff's claims as set forth in the petition filed to start the lawsuit, the court must accept the facts as set out in the petition.

         2. A statute of limitations sets a time period, within which suit must be filed, that begins when a cause of action accrues and ends after a specified length of time. For example, in a negligence case, a defendant's negligent act must cause injury or damage to the plaintiff for the cause of action to accrue.

         3. A statute of repose sets a time period, within which suit must be filed, that begins based on the date the defendant acted. For example, in a negligence case, the statute of repose would begin to run on the date of the defendant's negligent act even if the injury to the plaintiff did not occur until a later date. That often happens when a product is negligently manufactured but the plaintiff is not injured until a later date, sometimes years after the negligent act.

         4. When they apply, statutes of repose reflect a substantive choice made by the legislature to grant substantive relief against potential lawsuits when the specified period of time after a defendant's action has elapsed. Once the statute-of-repose time limit has expired, the legal claim is abolished even if no injury has yet occurred (and thus no cause of action has accrued) or the plaintiff is not yet aware of the injury. In addition, once the statute of repose has abolished the claim, the potential defendant has a vested, or protected, right to use the statute of repose as a defense, and the legislature cannot act later to revive the claim.

         5. This case involves a claim that arose when the plaintiff was 11 years old, so K.S.A. 60-515(a) provides the time limit to bring suit because minors are considered under a legal disability such that they can't file a lawsuit on their own behalf. So K.S.A. 60-515(a) provides that, "[e]xcept as provided in K.S.A. 60-523, " a person whose cause of action accrued while he or she was a minor "shall be entitled to bring such action within one year after the person's disability is removed, except that no such action shall be commenced . . . more than eight years after the time of the act giving rise to the cause of action." Under this provision, unless the exception of K.S.A. 60-523 applies, a statute of repose bars the filing of the action more than eight years after the defendant's act that gave rise to the cause of action.

         6. The exception found in K.S.A. 60-523 to the K.S.A. 60-515(a) statute of repose was first enacted by the Kansas Legislature in 1992. Because the statute of repose abolishes the underlying cause of action and the Kansas Legislature cannot revive such actions, the exception found in K.S.A. 60-523 has no application to a cause of action that has already been abolished by application of the statute of repose. Accordingly, for an action that was abolished before the enactment of K.S.A. 60-523, the exception found in K.S.A. 60-523 to the K.S.A. 60-515(a) statute of repose cannot apply.

         7. In this case, the plaintiff alleges sexual abuse by a priest that occurred in 1972. The eight-year statute of repose has been part of K.S.A. 60-515(a) since 1976, so the statute of repose abolished the plaintiff's claims before 1992, and the exception to K.S.A. 60-515(a) found in K.S.A. 60-523 does not apply.

         8. Sometimes fraud or fraudulent concealment by affirmative action may toll a statute of limitations or a statute of repose. For fraudulent concealment to toll a statute of limitations or repose, the plaintiff must establish affirmative conduct by the defendant, distinct from any conduct supporting the cause of action itself, that prevented the plaintiff from bringing a timely lawsuit. In this case, the plaintiff has not adequately pled fraudulent concealment.

         9. In some cases, fraud or fraudulent concealment by silence may toll a statute of limitations or a statute of repose if there is a fiduciary or confidential relationship and the defendant's silence prevents the plaintiff from discovering the cause of action. Here, the plaintiff has sued those in a religious hierarchy who were above the priest who abused the plaintiff. The allegations made in this case are insufficient to show such a unique relationship with those in the religious hierarchy that silence would toll the statutes of limitation or repose, especially given the instruction of K.S.A. 60-515(a) that "no such action" may be filed more than eight years after the act giving rise to the cause of action. Nor can an underlying allegation of fraud overcome the "no such action" language.

         10. Equitable estoppel can arise when a party induces a second party to believe that certain facts exist and the second party reasonably relies and acts upon that belief. Then, if the second party would be prejudiced if the inducing party were permitted later to deny the existence of those facts, equitable estoppel may be applied to foreclose that denial. In some cases, equitable estoppel has been applied to prevent a defendant from relying on the statute of limitations or statute of repose as a defense. When the eight-year statute of repose found in K.S.A. 60-515(a) applies, however, the court-made exception of equitable estoppel cannot be applied given the "no such action" language found in the statute.

         11. A litigant who fails to adequately brief an issue on appeal is deemed to have abandoned that issue.

         Appeal from Wyandotte District Court; Robert P. Burns, judge. Opinion filed June 9, 2017. Affirmed.

          Rebecca M. Randles, of Randles Mata, LLC, of Kansas City, Missouri, for appellant.

          Mara H. Cohara and Chad E. Blomberg, of Lathrop & Gage LLP, of Kansas City, Missouri; Lisa A. Weixelman and Guillermo G. Zorogastua, of Polsinelli PC, of Kansas City, Missouri; and Karen L. Torline, Stephen J. Torline, and Michael T. Crabb, of Kuckelman Torline Kirkland & Lewis, of Overland Park, for appellees.

          Before Leben, P.J., Powell and Schroeder, JJ.

          LEBEN, J.

         The plaintiff in this case, who has filed under the pseudonym John F.M. Doe, says that he was abused in 1972-when he was 11 years old-by a Catholic priest. Four decades later, when Doe was 53, he filed a lawsuit seeking damages for the abuse. The district court dismissed Doe's claims after it concluded that it was too late under Kansas law for him to pursue them. Doe has appealed to our court.

         We will begin our overview of the issues of this case and this decision with the two different types of time limitations that prevent claims from being litigated. One is a statute of limitations. Under these, there's a time clock that starts running when an action is said to "accrue, " meaning when the legal claim has fully come into existence, and any lawsuit must be filed within a time period set by the legislature. In Kansas, most torts cases, including ones for negligence, must be brought within 2 years, with the time clock normally starting to run when the injury occurs, which might be well after the act of negligence that caused the injury (say, when a negligently manufactured product doesn't cause injury until many years later). See K.S.A. 60-513(b).

         To give some certainty that claims for past acts will go away at some point, there's a second type of time limit states often create for certain types of claims- known as a statute of repose. Under this type of statute, even if an action has not accrued (and even if the plaintiff has not yet been injured and doesn't know, for example, that a product he or she has bought was negligently manufactured), there may still be some time limit based on when the defendant's last action leading to the lawsuit took place. See McCann v. Hy- Vee, Inc., 663 F.3d 926, 930 (7th Cir. 2011); Black's Law Dictionary 1637 (10th ed.2014). This second type of limit-the statute of repose-is where the main problem withDoe's suit lies.

         Like most states, Kansas recognizes that a minor can't file his or her own lawsuit, so a person like Doe who has been harmed while a child generally can file suit within 1 year after turning 18. See K.S.A. 60-515(a). But there's also a statute of repose for such claims-"no such action shall be commenced . . . more than eight years after the time of the [defendant's] act giving rise to the cause of action." K.S.A. 60-515(a). In Doe's case, the alleged abuse took place in 1972; under the statute of repose established by our legislature, he simply couldn't pursue the claims 40 years later.

         With that overview, we will move next to the factual information set out in Doe's petition, which initiated the lawsuit. We'll then discuss in more detail each of the legal issues he has presented in this appeal.

         Factual and Procedural Background

         Because this case was dismissed at the pleading stage, we must accept as true the facts set out in Doe's amended petition. That's because on a motion to dismiss a plaintiff's claims without proceeding further with the lawsuit, the court must accept the facts as set out in the petition. Platt v. Kansas State University, 305 Kan. 122, 126, 379 P.3d 362 (2016). The defendants have suggested that some of the allegations identifying specific defendants (Catholic Church entities and certain religious orders) may not be entirely accurate, but we will accept Doe's allegations for the purposes of this appeal. (The inaccuracies the defendants suggest do not affect the legal questions about whether Doe can proceed with his lawsuit.)

         Doe alleges he was sexually abused in 1972 by Father Finnian Meis, a priest then serving at The Church of the Good Shepherd in Shawnee, Kansas. At the time, Doe was 11 years old. Doe was referred to Meis for counseling following disciplinary issues at the local Catholic school. During these sessions, Meis would "lay[] on top of [Doe] and forc[e] his tongue down [Doe's] throat in addition ...


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