UNITED STATES COURT 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 the 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 complaint. Jurisdiction below was based on diversity. We 

have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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
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 The parties are familiar with the facts. In 2011, Duane Conger individually 

and through his conservatrix, Roseann Billinger, sued the Weinholds concerning 

Mr. Conger’s conveyance to them in 1991 of some real property located in Kansas. 

The district court concluded that the claims were time barred under Kansas 

substantive law and dismissed the complaint under Fed. R. Civ. P. 12(b)(6). It also 

denied, as futile, the motion to file an amended complaint. 

 Although the statute of limitations is an affirmative defense, it may be 

resolved on a Rule 12(b)(6) motion to dismiss “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 Cir. 1980). “We review de novo the 

dismissal of a complaint for failure to state 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 pleading 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) (citations omitted). 

 We have carefully examined the parties’ briefs and the record in light of the 

governing law and conclude that the district court correctly decided this case. In 

particular, the court was correct when it ruled that the claims are governed by the 

statute of limitations for tort claims because the gist of the complaint was for alleged 
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fraud. See Herthel v. Barth, 81 P.2d 19, 21 (Kan. 1938) (holding that even though 

the complaint contained a claim for a constructive trust on land, “[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 law, 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 fraudulent act occurred 

more than ten years before the suit was commenced, it was time barred. 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 William J. Holloway, Jr. 

 Circuit Judge