Appeal and Error. To be considered by an
appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error.
Motions to Dismiss: Pleadings: Appeal and Error. An
appellate court reviews a district court's order granting
a motion to dismiss de novo, accepting the allegations in the
complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.
Limitations of Actions: Fraud. An action for fraud
does not accrue until there has been a discovery of the facts
constituting the fraud, or facts sufficient to put a person
of ordinary intelligence and prudence on an inquiry, which,
if pursued, would lead to such discovery.
Limitations of Actions: Pretrial Procedure.
Discovery, as applied to the statute of limitations, occurs
when one knows of the existence of an injury or damage and
not when he or she has a legal right to seek redress in
Limitations of Actions: Pleadings: Proof. If the
complaint on its face shows that the cause of action is time
barred, the plaintiff must allege facts to avoid the bar of
the statute of limitations and, at trial, has the burden to
prove those facts.
Fraud: Estoppel: Limitations of Actions: Proof. In
order to successfully assert the doctrine of fraudulent
concealment and thus estop the defendant from claiming a
statute of limitations defense, the plaintiff must show the
defendant has, either by deception or by a violation of a
duty, concealed from the plaintiff material facts which
prevent the plaintiff from discovering the misconduct.
Fraud: Pleadings: Time. Allegations of fraudulent
concealment for tolling purposes must be pleaded with
Neb. 95] 8. Motions to Dismiss:
Fraud: Pleadings: Proof. In order to survive a
motion to dismiss, a complaint alleging fraudulent
concealment must plead with particularity how material facts
were concealed to prevent the plaintiff from discovering the
misconduct and how, through due diligence, the plaintiff
failed to discover his or her injury.
Pleadings: Words and Phrases. Pleading facts with
particularity means the who, what, when, where, and how: the
first paragraph of any newspaper story.
from the District Court for Douglas County: Shelly R.
C. Dorwart and Benjamin E. Maxell, of Govier, Katskee, Suing
& Maxell, PC, L.L.O., for appellant.
J. Frost, of McGrath, North, Mullin & Kratz, PC, L.L.O.,
for appellee Wisconsin Province of the Society of Jesus.
Patrick M. Flood and Lisa M. Meyer, of Pansing, Hogan, Ernst
& Bachman, L.L.P, for appellee Catholic Archdiocese of
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Chafin sued two religious organizations, alleging that when
she gave birth, these organizations kidnapped her newborn son
and fraudulently concealed his adoption. Based upon the
statute of limitations, the district court dismissed her
amended complaint. Chafin contends that her allegation of
fraudulent concealment tolled the statute. Because a pleading
rule requires the facts of fraudulent concealment to be
stated with particularity and because Chafin pled mere legal
conclusions, dismissal was correct. Therefore, we affirm.
Neb. 96] BACKGROUND
of the procedural posture, we state facts as alleged in the
amended complaint. And at this stage, we are required to
assume that these allegations are true. Chafin gave birth to
a son in 1969, who was then put up for adoption through the
Wisconsin Province of the Society of Jesus and the Catholic
Archdiocese of Omaha (collectively the Church). Chafin
alleges that her son was fraudulently adopted without her
consent and that the Church concealed this fraud over 40
years, until Chafin reunited with her son in 2015.
1968, Chafin discovered she was pregnant and left college to
return home to Omaha, Nebraska. After the discovery of the
pregnancy, Father Thomas A. Halley "forced" Chafin
to sign a contract for room and board in a residence for
young unmarried pregnant women. The complaint alleges that
"the end-game in this process was to provide babies for