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Chafin v. Wisconsin Province of Society of Jesus

Supreme Court of Nebraska

September 21, 2018

Kathleen Chafin, appellant,
v.
Wisconsin Province of the Society of Jesus and the Catholic Archdiocese of Omaha, appellees.

         1. 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.

         2. 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.

         3. 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.

         4. 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 court.

         5. 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.

         6. 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.

         7. Fraud: Pleadings: Time. Allegations of fraudulent concealment for tolling purposes must be pleaded with particularity.

         [301 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.

         9. Pleadings: Words and Phrases. Pleading facts with particularity means the who, what, when, where, and how: the first paragraph of any newspaper story.

          Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge.

          Thomas C. Dorwart and Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell, PC, L.L.O., for appellant.

          James 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 Omaha.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.

         INTRODUCTION

         Kathleen 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.

         [301 Neb. 96] BACKGROUND

         1969 Adoption

         Because 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.

         In 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 ...


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