Conway, 49 Kan. There, Dumler lost control of her car and sustained serious injuries when her car encountered mud and debris on a rural highway. Ensilage had been harvested in a field adjacent to the highway. Two years later, Dumler sued the farmer who owned the land alleging he negligently created the highway hazard during the ensilage harvest. The farmer argued he was not liable because he had hired a contractor to harvest the ensilage. Dumler brought the contractor into her suit after the two-year statute of limitations ran. The district court granted summary judgment against Dumler, finding the farmer was not liable for the contractor's negligence and the two-year statute of limitations barred Dumler's claims against the contractor.
Based on the plain language of K. In reviewing K. This court also noted 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. Here, FVA's negligence claims are barred by the two-year statute of limitations.
The act causing FVA's injuries happened on or before March 24, In this case, FVA claimed it was injured by Lori's negligent supervision, negligence as a transaction broker, and common-law negligent supervision of Paul. Lori's alleged negligence would have occurred when FVA, BBV, and Paul negotiated and completed the transaction, not later in time. FVA had a duty to reasonably investigate all available sources for facts relevant to its injuries. See Davidson, Kan.
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See Dumler, 49 Kan. The plain language of K. We cannot read K. To do so would impermissibly add language into the statute of limitations. See Ullery, Kan. FVA argues the question of when it was reasonably ascertainable it was injured is a fact question to be submitted to a jury. FVA is partially correct. The trier of fact weighs the disputed evidence to determine when a plaintiff's substantial injury first appears or becomes reasonably ascertainable.
Gilger v. Lee Constr. Even so, Lori raised the statute of limitations as an affirmative defense. When a defendant does so, "summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. Here, summary judgment was appropriate because there are no facts disputing when FVA had reasonably ascertained it was injured.
FVA filed its first lawsuit in alleging it was injured.
At the very latest, FVA had reasonably ascertained it was injured when it filed the first lawsuit. FVA also argues Dumler is inapplicable and cites to Michaelis v. Farrell, 48 Kan. FVA's argument is unpersuasive. An electrical shock injured Michaelis, but there was a factual dispute about when he learned the electrical shock caused him to suffer brain damage.
For five years after the shock, Michaelis' doctor claimed Michaelis' symptoms were not related to the incident. Upon additional testing, another doctor told Michaelis his symptoms were caused by the electrical shock. Based on the disputed facts, the Michaelis panel found the district court did not err in sending the fact question to the jury.
This disputed question of fact is immaterial to determining summary judgment.
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See Northern Natural Gas Co. The limitations period under K. FVA failed to raise its negligence claims against Lori before the two-year statute of limitations ran. The district court did not err in finding K. FVA is not entitled to equitable estoppel. FVA argues equitable estoppel prevents the statute of limitations from applying to its negligence claims because Lori and Paul allegedly engaged in fraudulent concealment.
FVA makes three unpersuasive arguments in support of equitable estoppel; we will address these in turn. Doe v. Popravak, 55 Kan. 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. Dunn v. Dunn, 47 Kan.
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When a party lacks an affirmative duty to disclose, the party's failure to disclose may not be enough to constitute fraudulent concealment. In such cases, by adding to the original fraud affirmative efforts to divert, mislead, or prevent discovery, a continuing character is given to the original act which deprives it of the protection of the statute [of limitations] until discovery.
Where some affirmative act of concealment takes place, it is not material whether the concealment was previous or subsequent to the accruing of the cause of action. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action, and whether the act operated as a means of concealment.
FVA alleges Paul's prior trial testimony induced it into believing Paul was the transaction broker and not a subordinate to Lori. Unfortunately, FVA provides no citation to the appellate record to support this argument. By failing to cite to the appellate record, FVA waives this argument.
Friedman v. Kansas State Bd. Careful review of the appellate record indicates Paul's testimony does not support FVA's argument. The parties only included a limited selection of Paul's testimony in the appellate record.
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Nothing in Paul's testimony suggests he concealed he was supervised by Lori. Paul testified he believed his duties as a transaction broker required him to act as a neutral party and not disclose adverse information about the transaction. FVA could have asked Paul about whether he had a supervisor, who his supervisor was, or whether he maintained his broker's license with a specific company.
Based on the record before us, FVA did not. FVA also argues, without citation to the record, Lori "dodged subpoena service and refused to attend depositions even after being served. See Friedman, Kan. Moreover, the record does not support this argument. As Lori explains in her brief, she and FVA agreed she did not need to attend depositions because she submitted other documents requested by FVA.
Lori's explanation is supported by the appellate record. FVA presents no facts or law to support finding Lori had a fiduciary relationship to disclose any supervisory relationship she had with Paul. FVA briefly argues Lori had a fiduciary duty to disclose her role as the transaction broker to FVA's negotiations.
FVA fails to support this argument with any pertinent legal authority or cite to any facts in the record showing Lori was the transaction broker.