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Foxfield Villa Associates, LLC v. Robben

Court of Appeals of Kansas

August 2, 2019

Foxfield Villa Associates, LLC, et al., Appellants,
v.
Lori D. Robben, et al., Appellees.

         SYLLABUS BY THE COURT

         1. Under K.S.A. 60-513(a)(4), a plaintiff must commence his or her negligence claims within two years from the date of the negligent act.

         2. Under K.S.A. 60-513(b), the cause of action listed in K.S.A. 60-513(a) "shall not be deemed to have accrued 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 injured party."

         3. The statute does not require the identification of the party who caused the injury. Instead, the only triggering events under the statute are (1) the act which caused the injury; (2) the existence of substantial injury; and (3) the injured party's awareness of the fact of injury.

         4. The statute of limitations begins to run when "the fact of injury" becomes reasonably ascertainable to the injured party.

         5. In some instances, a statute of limitations can be stopped from running-or "tolled"-for some period of time. Kansas courts have held fraud and fraudulent concealment can toll a statute of limitations.

         6. In order to toll a statute of limitations, the party's concealment must be fraudulent or intentional and, in the absence of a fiduciary or confidential relationship, there must be something of an affirmative nature designed to prevent, and which does prevent, discovery of the cause of action.

         7. Under K.S.A. 33-204(a)(1), a creditor may recover for a fraudulent transfer of property when the debtor transfers the property with actual intent to hinder, delay, or defraud any creditor of the debtor.

         8. A fraudulent transfer claim based on actual intent may still survive the four-year limitation period because K.S.A. 33-209(a) includes a savings clause. The savings clause permits a creditor to proceed on a claim of actual intent when the creditor brings the claim within one year after the creditor discovered or could reasonably have discovered the transfer.

         9. A fraudulent transfer claim based on a lack of reasonable value is subject to the limitations set out in K.S.A. 33-209(b), not K.S.A. 33-209(a). Under K.S.A. 33-209(b), the creditor must bring a claim within four years of the transfer or the creditor's claims are extinguished, even if the transfer was later discovered or could have reasonably been discovered.

         10. A claim for civil conspiracy requires the commission of some wrong giving rise to a cause of action independent of the conspiracy.

         11. A claim for aiding and abetting requires the commission of a wrongful act that causes an injury to a party.

          Appeal from Johnson District Court; Kevin P. Moriarty, judge.

          John M. Duggan and Deron A. Anliker, of Duggan Shadwick Doerr & Kurlbaum LLC, of Overland Park, for appellants.

          Melissa Hoag Sherman, of Spencer Fane LLP, of Overland Park, for appellees.

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

          Schroeder, J.

         Foxfield Villa Associates, LLC; Bartlett Family Real Estate Fund, LLC; PRES, LLC; Ernest J. Straub III; and Richard A. Bartlett (collectively FVA) appeal the district court's summary judgment order denying FVA's various claims of negligence, fraudulent transfers, conspiracy to commit fraudulent transfers, and aiding and abetting fraudulent transfers. First, FVA alleges its negligence claims survive summary judgment because it could not have reasonably ascertained it was injured within the two-year statute of limitations and this entitles FVA to equitable estoppel. Next, FVA argues its fraudulent transfer claims survive summary judgment because FVA could not have reasonably discovered the transfers until after it filed suit in this case. Finally, FVA asks this court to recognize two causes of actions never previously recognized in Kansas-conspiracy to commit fraudulent transfers and aiding and abetting fraudulent transfers. Upon review of the record, including the parties' briefs, we find no errors by the district court. We affirm.

         FACTS

         The parties to this action were involved in a complex and unsuccessful real estate project that resulted in the loss of millions of dollars, two federal lawsuits, a bankruptcy, and two lawsuits in Johnson County District Court, one of which resulted in this appeal.

         Lori D. Robben is a realtor who owns Prestige Real Estate Services, LLC, and she is trustee of the "First Amended and Restated Lori D. Robben Trust Agreement Dated November 15, 2010."

         Lori's husband is Paul Robben. Paul had ownership interests in Foxfield Associates, LLC (FA) and owned RDC Holdings, LLC (RDC). RDC and Ernest J. Straub III formed PRES, LLC (PRES). Richard and Dena Bartlett own Bartlett Family Real Estate Fund, LLC. In 2007, PRES, which included RDC, and the Bartlett Family Real Estate Fund, LLC formed Foxfield Villa Associates, LLC (Foxfield). Later RDC withdrew from PRES and FVA.

         Foxfield closed two real estate transactions with FA on March 24, 2008, in Olathe, Kansas. Foxfield purchased 38 vacant lots. They also bought 9.1 acres to develop 40 additional lots. Bank of Blue Valley (BBV) loaned Foxfield $1, 440, 000 for the purchase and future development of the 9.1 acres. Foxfield defaulted on the loan in 2010.

         FVA first sued BBV in Johnson County District Court on September 1, 2011. BBV brought counterclaims for FVA's default. In August 2012, FVA sued BBV in the United States District Court for the District of Kansas. In both lawsuits, FVA alleged BBV failed to disclose information about Paul's financial condition. In February 2013, FVA amended its federal complaint, brought claims against Paul, and alleged he made numerous misrepresentations or omissions during the real estate purchase, including misrepresentations about his license as a real estate broker.

         In July 2013, Paul testified he was the transaction broker for the agreement between FVA's members and BBV.

         In 2015, FVA amended its federal complaint again, alleging their relationship with Paul and RDC began in 2007, and his alleged misconduct occurred before the real estate transaction in March 2008. Meanwhile, Paul filed for bankruptcy, and the United States Bankruptcy Court for the District of Kansas eventually entered a discharge of debtor in Paul's favor. Paul later moved to dismiss the federal complaint against him based on this bankruptcy discharge.

         The district court in the first lawsuit eventually ruled against FVA's claims and in favor of BBV's counterclaims, awarding $2, 351, 713.36 against Foxfield for the BBV loan and $360, 000 and $720, 000 against Straub and Bartlett, respectively, for their personal guaranties.

         On August 31, 2016, FVA filed this second lawsuit in district court naming Lori D. Robben, her company Prestige, and her trust as defendants (Lori). FVA alleged in July 2013, Paul told them he was a Kansas real estate agent and broker, but he was acting as the transaction broker under Lori's supervising authority during the 2008 transaction. FVA alleged Lori was liable for negligent supervision, vicarious liability, aiding and abetting negligence, common-law negligent supervision, fraudulent transfer of three properties, conspiracy to commit fraudulent transfer, and aiding and abetting fraudulent transfer.

         Lori moved for summary judgment and the district court granted Lori's motion, denying all of FVA's claims. Where needed, we have provided additional facts below.

         Analysis

         Lori was entitled to summary judgment against FVA's negligence claims.

         The district court granted Lori summary judgment because it found the two-year statute of limitations barred FVA's claims of negligence, negligent supervision, vicarious liability, aiding and abetting negligence, and common-law negligent ...


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