UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

ROSEANN BILLINGER, duly appointed conservatrix of Duane Conger; DUANE CONGER, individually, Plaintiffs-Appellants,

v. HAROLD WEINHOLD; LEANN WEINHOLD, Defendants-Appellees. No. 12-3124 (D.C. No. 6:11-CV-01075-MLB-KMH) (D. Kan.)

ORDER AND JUDGMENT *

Before HOLMES , HOLLOWAY , and BACHARACH , Circuit Judges.

This is an appeal from th e district court’s order granting the motion to dismiss filed by defendants Harold Weinhold and Leann Weinhold, and denying plaintiffs’

motion to file an amended co mplaint. Jurisdiction below was based on diversity. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 4, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - The parties are familiar with the fact s. In 2011, Duane Conger individually and through his conservatrix, Roseann B illinger, sued the Weinholds concerning Mr. Conger’s conveyance to them in 1991 of some real property lo cated in Kansas.

The district court concluded that the claims were time barred under Kansas substantive law and dismissed the complaint unde r Fed. R. Civ. P. 12(b)(6). It also denied, as futile, the motion to file an am ended complaint. Although the statute of limitations is an affirmative de fense, it may be resolved on a Rule 12(b)(6) motion to dismi ss “when the dates given in the complaint make clear that the right sued upon has been extinguished.” Aldrich v. McCulloch Props., Inc ., 627 F.2d 1036, 1041 n.4 (10th Ci r. 1980). “We review de novo the dismissal of a complaint for failure to st ate a claim under Rule 12(b)(6).” Childs v.

Miller , 713 F.3d 1262, 1264 (10th Cir. 2013). As to the motion to amend, “[w]e ordinarily review a denial of a motion to amend a pleadi ng for abuse of discretion. However, when denial is based on a determination that amendment would be futile,

our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ ., 565 F.3d 1232, 1249 (10th Cir. 2009) (c itations omitted). We have carefully examined the parties’ briefs and the reco rd in light of the governing law and concl ude that the district court corr ectly decided this case. In particular, the court was correct when it ru led that the claims are governed by the

statute of limitations for tort claims because the gist of the complaint was for alleged- 3 - fraud. See Herthel v. Barth , 81 P.2d 19, 21 (Kan. 1938) (holding that even though the complaint contained a claim for a c onstructive trust on la nd, “[l]ooking beyond

the mere form of the action to the real issue involved, we find the gist of the action was ‘relief on the ground of fraud’”); Sutton v. Sutton , 118 P.3d 700, 702 (Kan. Ct. App. 2005) (same). Under Kansas la w, although the limitation period for commencing a fraud action is two years from the time the fraud is discovered, no such action may be commenced more than ten years after the fraudulent act itself. Kan. Stat. Ann. § 60-513(a)(3), (b). Because the alleged fra udulent act occurred more than ten years before the suit was commenced, it was time barred. The judgment of the distri ct court is affirmed.

Entered for the Court

William J. Holloway, Jr. Circuit Judge