John F.M. Doe, Appellant,
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.
BY THE COURT
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
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
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.
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
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.
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
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
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.
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.
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
litigant who fails to adequately brief an issue on appeal is
deemed to have abandoned that issue.
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.
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,
Leben, P.J., Powell and Schroeder, JJ.
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.
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.
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
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.
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.
and Procedural Background
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.)
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 ...