BY THE COURT
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
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
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.
statute of limitations begins to run when "the fact
of injury" becomes reasonably ascertainable to the
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.
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
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.
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
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
claim for civil conspiracy requires the commission of some
wrong giving rise to a cause of action independent of the
claim for aiding and abetting requires the commission of a
wrongful act that causes an injury to a party.
from Johnson District Court; Kevin P. Moriarty, judge.
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,
Schroeder, P.J., Green and Powell, JJ.
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.
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.
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,
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
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.
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.
2013, Paul testified he was the transaction broker for the
agreement between FVA's members and BBV.
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.
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.
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.
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.
was entitled to summary judgment against FVA's negligence
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