Ripley v. Tolbert, 74583

Decision Date12 July 1996
Docket NumberNo. 74583,74583
Citation260 Kan. 491,921 P.2d 1210
PartiesJoleta RIPLEY, Appellant, v. B.E. "Jack" TOLBERT and Pearl Tolbert, Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

2. In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.

3. A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not yet have accrued. It is substantive. Thus, Kansas constitutional protection applies only to statutes of repose because they pertain to substantive rights.

4. A statute operates prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively.

5. The legislature has the power to revive actions barred by a statute of limitations if it specifically expresses its intent to do so through retroactive application of a new law.

6. Issues not raised before the trial court will not be heard for the first time on appeal.

7. K.S.A. 60-515, which imposes an 8-year statute of repose for minors, does not violate the right to equal protection and due process of law.

Marlys A.K. Marshall, of Marshall, Womack & Ingram, Wichita, argued the cause and was on the briefs, for appellant.

James A. Cline, of Toomey, Russell, Pilgreen & Innes, L.L.C., Wichita, argued the cause and was on the brief, for appellees.

Mark A. Furney, Overland Park, was on the brief, for amicus curiae Kansas Trial Lawyers Association.

ABBOTT, Justice:

Plaintiff, Joleta Ripley, at age 50, filed a civil action against her biological father, B.E "Jack" Tolbert, alleging he sexually abused her when she was a minor. Plaintiff also sued her biological mother, Pearl Tolbert, for not preventing the sexual abuse. Numerous counts were filed against both parents claiming childhood sexual abuse pursuant to K.S.A. 60-523; intentional infliction of emotional distress; negligence per se for violating criminal statutes which prohibit sexual conduct with children; negligence against Jack Tolbert for his failure to use ordinary care in allowing himself to be in Ripley's presence and for his failure to use ordinary care in seeking help for his irresistible impulses; and negligence against both defendants because they provided improper supervision, care, medical treatment, and psychological treatment for the plaintiff, all of which created an unreasonable risk of harm and injury to the plaintiff.

The pleadings reveal that the plaintiff was born on November 28, 1943, and that on or about April 18, 1991, she claims she spontaneously experienced a memory recall of her father sexually abusing her. Three days shy of the 3-year anniversary of this alleged memory, the plaintiff filed this action. In response to this petition, the defendants filed an answer and a motion to dismiss for failure to state a claim or in the alternative a motion for judgment on the pleadings. The court granted the defendants' motion to dismiss, relying on Swartz v. Swartz, 20 Kan.App.2d 704, 894 P.2d 209 (1995), and finding that the statute of repose extinguished the plaintiff's claims.

We have previously considered our scope of review in Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986), where we said:

"Our scope of review, where the trial court has sustained a motion to dismiss, is concisely defined in Knight v. Neodesha, Kansas, Police Dept., 5 Kan.App.2d 472, 620 P.2d 837 (1980):

" 'When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer.' Syl. p 1.

" 'Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.' Syl. p 2.

" 'In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.' Syl. p 3."

The pleadings are not clear as to when the alleged abuse occurred, but it necessarily occurred before the plaintiff reached the age of majority. It is of no importance to this case whether we use the plaintiff's 18th birthday (November 28, 1961) or her 21st birthday (November 28, 1964) as her age of majority.

The bottom line is that plaintiff relies on K.S.A. 60-523, a statute enacted in 1992, for her cause of action.

K.S.A. 60-523 states:

"(a) No action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced more than three years after the date the person attains 18 years of age or more than three years from the date the person discovers or reasonably should have discovered that the injury or illness was caused by childhood sexual abuse, whichever occurs later.

"(b) As used in this section:

(1) 'Injury or illness' includes psychological injury or illness, whether or not accompanied by physical injury or illness.

(2) 'Childhood sexual abuse' includes any act committed against the person which act occurred when the person was under the age of 18 years and which act would have been a violation of any of the following:

(A) Indecent liberties with a child as defined in K.S.A. 21-3503 and amendments thereto; (B) aggravated indecent liberties with a child as defined in K.S.A. 21-3504 and amendments thereto; (C) aggravated criminal sodomy as defined in K.S.A. 21-3506 and amendments thereto; (D) enticement of a child as defined in K.S.A. 21-3509 and amendments thereto; (E) indecent solicitation of a child as defined in K.S.A. 21-3510 and amendments thereto; (F) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511 and amendments thereto; (G) sexual exploitation of a child as defined in K.S.A. 21-3516 and amendments thereto; or (H) aggravated incest as defined in K.S.A. 21-3603 and amendments thereto; or any prior laws of this state of similar effect at the time the act was committed.

"(c) Discovery that the injury or illness was caused by childhood sexual abuse shall not be deemed to have occurred solely by virtue of the person's awareness, knowledge or memory of the acts of abuse. The person need not establish which act in a series of continuing sexual abuse incidents caused the injury or illness complained of, but may compute the date of discovery from the date of discovery of the last act by the same perpetrator which is a part of a common scheme or plan of sexual abuse.

"(d) This section shall be applicable to:

"(1) Any action commenced on or after July 1, 1992, including any action which would be barred by application of the period of limitation applicable prior to July 1, 1992:

"(2) any action commenced prior to July 1, 1992, and pending on July 1, 1992."

In dismissing the plaintiff's claim, the district court found that 60-515(a) applied to the plaintiff's claim before 60-523 was enacted in 1992. The district court also found that the 8-year statute of repose in 60-515(a) barred the plaintiff's claim prior to 1992. As such, the district court found that 60-523, could not revive the plaintiff's claim, without unconstitutionally depriving the defendants of due process. In reviewing the district court's ruling, our first step is to determine whether 60-515(a) actually applied to the plaintiff's case before the enactment of 60-523. If so, the questions are, did the 8-year statute of repose in 60-515(a) bar the plaintiff's claim before 1992, and was such a bar unconstitutional?

K.S.A. 60-515(a), which was amended in 1992 to include the language italicized below when K.S.A. 60-523 was enacted, provides:

"(a) Effect. Except as provided in K.S.A. 60-523, if any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person's natural life, such person shall be entitled to bring such action within one year after the...

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