* This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3. 

** Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals

for the Sixth Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

Filed 6/17/96

FOR THE TENTH CIRCUIT

GRAHAM PARKER MORGAN, aka 

Brenda Sue Blunt,

Plaintiff-Appellant,

v.

SAMUEL DWIGHT DONLEY,

Defendant-Appellee.

No. 95-3258

(D.C. No. 94-CV-2478)

(D. Kan.)

ORDER AND JUDGMENT*

Before PORFILIO, JONES,** and TACHA, Circuit Judges.

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

unanimously to grant the parties’ request for a decision on the briefs without oral argument.

See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument. 
2

Plaintiff-appellant Graham Parker Morgan appeals the district court’s denial of her

motion to certify certain questions to the Kansas Supreme Court and its entry of judgment

in favor of defendant on the pleadings. Although we agree that section 60-515(a) of the

Kansas Statutes does not operate to bar plaintiff’s claims, we affirm the district court’s

judgment on the ground that plaintiff’s claims are barred by the statute of repose found in

section 60-513(b) of the Kansas Statutes. 

In 1994, plaintiff filed a lawsuit against her former stepfather, seeking damages for

psychological injuries caused by defendant’s alleged sexual and physical abuse of plaintiff

from 1967 to 1975. In her complaint, plaintiff alleged that her emotional injuries first

manifested themselves after she attained majority in 1978, and that she only learned of the

connection between her emotional and cognitive dysfunction and defendant’s abuse in

November 1992. She alleged that her suit was timely based on section 60-523 of the Kansas

Statutes, which states:

(a) No action for recovery of damages suffered as a result of childhood sexual

abuse shall be commenced more than three years after the date the person

attains 18 years of age or more than three years from the date the person

discovers or reasonably should have discovered that the injury or illness was

caused by childhood sexual abuse, whichever occurs later.

. . . .

(d) This section shall be applicable to:

(1) Any action commenced on or after July 1, 1992, including any action

which would be barred by application of the period of limitation applicable

prior to July 1, 1992.

Kan. Stat. Ann. § 60-523. Defendant’s answer raised the affirmative defense that plaintiff’s

claims were barred by the applicable statute of repose. 
3

In March 1995, the Kansas Court of Appeals issued its opinion in Swartz v. Swartz,

894 P.2d 209 (Kan. Ct. App. 1995), holding, on similar facts, that a lawsuit brought by a

childhood sexual abuse victim was barred by the statute of repose found in section 60-515(a)

of the Kansas Statutes, regardless of the time limits contained in section 60-523. Section

60-515(a) tolls the statute of limitations for persons whose causes of action arise while they

are under a disability, but bars any such action more than eight years after the act giving rise

to the cause of action. Recognizing that the decision in Swartz might preclude her lawsuit,

plaintiff requested the district court to certify to the Kansas Supreme Court the question

whether section 60-515(a) applied to her case, and if so, whether it was constitutional.

Plaintiff requested a hearing and an extended briefing schedule on this issue. 

Defendant filed a motion for judgment on the pleadings, arguing that plaintiff’s claims

were time-barred, either by the statute of repose found in section 60-513(b) or by section

60-515(a) of the Kansas Statutes. The district court denied plaintiff’s motion to certify and

request for a hearing. The court then granted defendant’s motion for judgment on the

pleadings, based on section 60-515(a) and the Swartz decision. This appeal followed. 

We review the district court’s decision whether to certify a question to the state

supreme court for an abuse of discretion. Allstate Ins. Co. v. Brown, 920 F.2d 664, 667 (10th

Cir. 1990). We review de novo its grant of judgment to defendant on the pleadings. See

McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.), cert. denied, 502 U.S. 894

(1991). 
4

Plaintiff argues that the district court erred in denying her motion to certify. The

district court denied the motion on the ground that the Kansas Court of Appeals’ opinion in

Swartz was controlling precedent which made certification inappropriate. An opinion by

the Kansas Court of Appeals is considered controlling under the Kansas certification statute,

which limits certification to cases where “it appears to the certifying court there is no

controlling precedent in the decisions of the supreme court and the court of appeals of this

state.” Kan. Stat. Ann. § 60-3201. Therefore, the district court did not abuse its discretion

in refusing to certify plaintiff’s issues. In addition, because, as will be discussed, section

60-515(a) does not apply to plaintiff’s case, there could be no error in failing to certify

questions regarding its interpretation and constitutionality. 

Plaintiff argues that the eight-year limitation in section 60-515(a) does not apply to

her case because her injuries did not manifest themselves until after she reached the age of

majority. We agree. Section 60-515(a) tolls the statute of limitations for persons under a

disability, as follows:

Except as provided in K.S.A. 60-523, if any person entitled to bring an action,

. . . at the time the cause of action accrued or at any time during the period the

statute of limitation is running, is less than 18 years of age, an incapacitated

person, or imprisoned . . . such person shall be entitled to bring such action

within one year after the person’s disability is removed, except that no such

action shall be commenced by or on behalf of any person under the disability

more than eight years after the time of the act giving rise to the cause of action.

The statute, with its eight-year statute of repose, applies only to those persons whose causes

of action accrue while they are under a disability, or who become incapacitated or imprisoned
5

at some point while the statute of limitations is running. See Gilger v. Lee Constr., Inc., 820

P.2d 390, 398 (Kan. 1991)(Noting “K.S.A. 60-515(a) authorizes a plaintiff, who is a minor

at the time a cause of action accrues, to bring an action within one year after reaching

majority”). 

Here, plaintiff alleged that her emotional injuries did not manifest themselves until

after she reached majority, and that she did not learn that they were caused by defendant’s

conduct until 1992. Under Kansas law, a cause of action does not accrue until “the act giving

rise to the cause of action first causes substantial injury, or . . . the fact of injury becomes

reasonably ascertainable to the injured party.” Kan. Stat. Ann. 60-513(b). Because

plaintiff’s cause of action did not accrue until, at the earliest, her emotional injuries became

apparent, which occurred after she turned 18, section 60-515(a) has no application to this

case. See Gilger, 820 P.2d at 397, 399-401 (discussing when a cause of action accrues, based

on the date the injury becomes reasonably ascertainable, and indicating need for notice of

connection with defendant’s act). The Swartz decision does not require a contrary result, as

it is unclear in that case when the plaintiff’s emotional injuries first became ascertainable.

Although plaintiff’s claims are not barred by the eight-year statute of repose found in

section 60-515(a), the district court’s judgment must be upheld based on the ten-year statute

of repose found in section 60-513(b) of the Kansas Statutes. Section 60-513 limits the time

for bringing personal injury tort claims, providing both a two-year statute of limitation and

an overall ten-year statute of repose. Harding v. K.C. Wall Prods., Inc., 831 P.2d 958, 968
6

(Kan. 1992). The ten-year statute of repose, which runs from defendant’s act giving rise to

the cause of action, bars the action “even though [it] may not have yet accrued.” Id. Because

defendant’s last act giving rise to this cause of action occurred in 1975, plaintiff’s claims

became time-barred in 1985, and the district court did not err in dismissing her lawsuit.

Section 60-523 of the Kansas Statutes, enacted in 1992, did not operate to resurrect

plaintiff’s cause of action. Because a statute of repose gives a defendant a substantive right

to be free from liability, the legislature may not revive a cause of action after it has been

barred by a statute of repose. Harding, 831 P.2d at 967-68. The enactment of section

60-523, therefore, could not revive plaintiff’s cause of action in this case.

Plaintiff also argues that the district court erred in granting judgment on the pleadings

without permitting oral argument or briefing on the issues, and that this conduct violated

“10th Cir. R. 133.” Appellant’s Br. at 12. This argument is without merit in that no such

rule exists, plaintiff never requested a hearing on the motion for judgment, and plaintiff was

given the opportunity to fully brief all the issues. See Appendix at 12-18, 49-57.

The judgment of the United States District Court for the District of Kansas is

AFFIRMED.

Entered for the Court

John C. Porfilio 

Circuit Judge