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DOE v. McCOY

Cite as 297 Neb. 321

Jane and John Doe, wife and husband, appellants, 

v. William Bruce McCoy, appellee.

___ N.W.2d ___

Filed July 28, 2017. No. S-16-746.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

2. Limitations of Actions. The determination of which statute of limitations applies is a question of law.

3. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

4. Statutes: Legislature. In order for a court to inquire into a statute’s 

legislative history, the statute in question must be open to construction, 

and a statute is open to construction when its terms require interpretation 

or may reasonably be considered ambiguous.

5. Limitations of Actions. The time limitation of Neb. Rev. Stat. § 25-228 

(Reissue 2016) does not apply to actions for which the existing statute 

of limitations had run at the time § 25-228 was enacted.

Appeal from the District Court for Douglas County: Gregory

M. Schatz, Judge. Affirmed.

Daniel H. Friedman, of Friedman Law Offices, P.C., L.L.O., 

for appellants.

James Martin Davis, of Davis Law Office, for appellee.

Danny C. Leavitt for amicus curiae Nebraska Association of 

Trial Attorneys.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/13/2017 12:11 AM CDT
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DOE v. McCOY

Cite as 297 Neb. 321

Miller-Lerman, J.

NATURE OF CASE

The plaintiffs in this case, who filed their complaint using 

the pseudonyms “Jane Doe” and “John Doe,” appeal the order 

of the district court for Douglas County which dismissed their 

complaint against William Bruce McCoy. The court determined that the complaint should be dismissed for two reasons: 

(1) The action was time barred under the applicable statutes 

of limitations, and (2) the complaint was not brought in the 

real names of the parties in interest. We affirm the dismissal 

of the complaint on the basis that the statutes of limitations 

barred the action. Because that determination is dispositive of 

this appeal, we do not consider the issue regarding the plaintiffs’ names.

STATEMENT OF FACTS

On February 3, 2016, the plaintiffs herein filed a complaint 

in the district court using the pseudonyms “Jane Doe” and 

“John Doe.” In the complaint, they set forth a tort cause of 

action in which they alleged that McCoy had engaged in acts 

of sexual battery, exhibitionism, and voyeurism that caused 

“Jane Doe” severe harm and extreme emotional distress and 

caused “John Doe” a loss of consortium. They generally 

alleged that McCoy was “Jane Doe’s” mother’s boyfriend 

and that on “innumerable occasions” beginning in 1991 and 

continuing through 1999, McCoy had sexually abused “Jane 

Doe” and her sister. “Jane Doe” was born in 1985 and was 

a minor throughout the duration of the alleged sexual abuse. 

“Jane Doe” married “John Doe” on April 17, 2014, and 

the plaintiffs claimed that “John Doe” suffered a loss of 

consortium as a result of McCoy’s alleged sexual abuse of 

“Jane Doe.”

McCoy filed a motion to dismiss the complaint on the 

bases that (1) the claims were barred by the applicable statutes of limitations and the plaintiffs alleged no facts that 

would exempt the claims from the statutes of limitations and 
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Cite as 297 Neb. 321

(2) the complaint failed to state a claim because the action 

was not brought in the plaintiffs’ real names as required by 

Neb. Rev. Stat. § 25-301 (Reissue 2016). Prior to a hearing 

on the motion to dismiss, “Jane and John Doe” filed with the 

court a confidential document in which they disclosed their 

real names.

After the hearing, the court filed an order an July 27, 2016, 

which granted McCoy’s motion to dismiss on both bases. 

With regard to the statutes of limitations, the court indicated that McCoy contended that only two applicable statutes 

read together controlled this case: Neb. Rev. Stat. § 25-207 

(Reissue 2016) (action for tort damages must be brought 

within 4 years after action accrues) and Neb. Rev. Stat. 

§ 25-213 (Reissue 2016) (if plaintiff is minor at time tort cause 

of action accrues, statute of limitations is tolled until plaintiff 

reaches age 21). The court determined that the tort was alleged 

to have occurred between 1991 and 1999, and that “Jane Doe” 

turned 21 on September 21, 2006. The court observed that if 

§ 25-213 controlled, with the addition of 4 years, the statutes 

of limitations ran on September 21, 2010.

The court acknowledged the plaintiffs’ argument that Neb. 

Rev. Stat. § 25-228 (Reissue 2016) applied to this case. 

Section 25-228 generally provides that in the case of a tort 

action in which the plaintiff is a victim of sexual assault of a 

child, the statute of limitations is extended to 12 years after 

the plaintiff reaches age 21. However, the court noted that 

§ 25-228 was enacted in 2012 and did not become effective 

until July 19, 2012. The court stated that although the general 

rule is that the limitation period in effect at the time an action 

is filed controls, one of the exceptions to this general rule is 

that a defendant may not be deprived of a bar that has already 

become complete. The court concluded that because the bar 

in this case had become complete on September 21, 2010, the 

limitation period under § 25-228, which did not become effective until July 19, 2012, did not apply. The court concluded 
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that the complaint should be dismissed because the action was 

time barred.

With regard to the use of pseudonyms, the court stated that 

§ 25-301 requires that all actions be brought in the name of 

the real party in interest and that although Nebraska case law 

acknowledged that in certain cases, a trial court may allow a 

party to bring an action under a pseudonym, a party seeking 

to do so must first receive approval from the court, which the 

plaintiffs in this case failed to do. The court further determined 

that even if the plaintiffs had timely petitioned the court to 

proceed anonymously, it would not have granted the request. 

The court reasoned that although the nature of the allegations 

in this case would be “very difficult for [Jane] Doe to relive 

. . . and be publically associated with,” the allegations were 

“simply not ‘exceptional’ enough to overcome [the] customary and constitutionally-embedded presumption of openness 

in judicial proceedings.” The court further stated that while it 

was common to preserve the anonymity of plaintiffs in cases 

involving minors, “Jane Doe” was no longer a minor and 

“should not be given any special deference in her request to 

proceed anonymously.” The court concluded that the complaint 

should be dismissed because it was not brought in the names 

of the real parties in interest.

The plaintiffs appeal the order dismissing their complaint.

ASSIGNMENTS OF ERROR

The plaintiffs claim that the district court erred when it (1) 

ruled that the action was time barred and (2) ruled that they 

should not be allowed to proceed anonymously.

STANDARDS OF REVIEW

[1] A district court’s grant of a motion to dismiss is reviewed 

de novo. Harring v. Gress, 295 Neb. 852, 890 N.W.2d 502 

(2017).

[2,3] The determination of which statute of limitations 

applies is a question of law. Lindner v. Kindig, 293 Neb. 661, 
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881 N.W.2d 579 (2016). An appellate court independently 

reviews questions of law decided by a lower court. Id.

ANALYSIS

We first consider the statutes of limitations issue, and we 

conclude that the action in this case was barred by the applicable statutes of limitations and that therefore the district 

court did not err when it dismissed the plaintiffs’ complaint. 

Because that conclusion is determinative of the appeal, we 

need not consider the plaintiffs’ assignment of error regarding 

the court’s ruling that the plaintiffs should not be allowed to 

proceed anonymously. See Irwin v. West Gate Bank, 288 Neb. 

353, 848 N.W.2d 605 (2014) (appellate court is not obligated 

to engage in analysis which is not needed to adjudicate controversy before it).

The district court determined that the only applicable statutes of limitations in this case were § 25-207, which provides 

that an action for tort damages must be brought within 4 years 

after the action accrues, and § 25-213, which provides that 

if the plaintiff is a minor at the time the tort cause of action 

accrues, the statutes of limitations are tolled until the plaintiff 

reaches age 21. Reading these statutes together and applying 

them to the facts alleged in the complaint, the court determined 

that the action accrued when “Jane Doe” was a minor, that she 

turned 21 in 2006, and that the statutes of limitations ran in 

2010. The court concluded therefore that the action was barred 

at the time the plaintiffs filed it in 2016.

The plaintiffs argue on appeal that the district court erred 

when it rejected their argument that the action was timely, 

because § 25-228 extended the limitation period. At the time 

the plaintiffs filed their complaint, § 25-228 provided as 

follows:

Notwithstanding any other provision of law, actions for 

an injury or injuries suffered by a plaintiff when the plaintiff was a victim of a violation of section 28-319.01 or 

28-320.01 can only be brought within twelve years after 
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the plaintiff’s twenty-first birthday. Criminal prosecution 

of a defendant under section 28-319.01 or 28-320.01 is 

not required to maintain a civil action for violation of 

such sections.

We note that Neb. Rev. Stat. §§ 28-319.01 and 28-320.01 

(Reissue 2016) pertain to sexual assault of a child. The plaintiffs argue that § 25-228, which was enacted in 2012, applied 

to their complaint and that pursuant to § 25-228, they had until 

September 21, 2018, which is 12 years after “Jane Doe” turned 

21, to file their action. The plaintiffs therefore reason that their 

complaint filed February 3, 2016, was timely.

The district court determined, however, that § 25-228 did 

not apply to the action in this case, because the statutory bar 

pursuant to §§ 25-207 and 25-213 was complete in 2010 and 

§ 25-228, which was enacted after 2010, could not overcome 

the completed bar. The court relied on Schendt v. Dewey, 246 

Neb. 573, 520 N.W.2d 541 (1994), in which this court stated 

that although the limitation period in effect at the time an 

action is filed generally governs the action, the Legislature 

may not, inter alia, deprive a defendant of a bar which has 

already become complete. This court in Schendt v. Dewey

relied on Givens v. Anchor Packing, 237 Neb. 565, 569, 466 

N.W.2d 771, 773 (1991), in which this court had stated that 

a statutory “amendment cannot resurrect an action which 

the prior version of the statute had already extinguished.” 

This court reasoned in Givens v. Anchor Packing that the 

rule was “grounded upon the due process guarantee found in 

Neb. Const. art. I, § 3, which prevents persons from being 

deprived of their property without due process of law,” and 

that “immunity granted [to a defendant] by a completed statutory bar,” like a plaintiff’s right to recover on a judgment, 

“is a vested right which cannot be impaired by a subsequent 

legislative act.” 237 Neb. at 569, 466 N.W.2d at 773, 774. 

The district court in this case concluded that McCoy “gained 

a vested right in the time-bar on September 21, 2010, under 
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the Nebraska Constitution, which outweighs any subsequent 

action by the Legislature.”

For completeness, we note that with regard to limitations of 

actions, a distinction is often made between statutes of limitations and statutes of repose. See California Public Employees’ 

Retirement System v. ANZ Securities, Inc., ___ U.S. ___, 137 

S. Ct. 2042, ___ L. Ed. 2d ___ (2017). However, in Givens v. 

Anchor Packing, supra, we stated that whether the statute at 

issue in that case was “characterized as a statute of repose . . . 

or as a statute of limitations . . . it [was] a statute prescribing limitations on actions” and that “[a]s such, its amendment 

cannot resurrect an action which the prior version of the statute had already extinguished.” 237 Neb. at 569, 466 N.W.2d 

at 773.

The plaintiffs argue that the precedent cited by the district court to prohibit application of § 25-228 should not be 

applied to this case. In addition to arguing that such precedent 

was wrongly decided, they note that § 25-228 states that the 

time limitation set forth therein shall apply “[n]otwithstanding any other provision of law.” The plaintiffs argue that such 

language should be read as showing a legislative intent to 

circumvent the rule set forth in Schendt v. Dewey and Givens 

v. Anchor Packing. In effect, they argue that “any other provision of law” as used in § 25-228 includes Neb. Const. art. I, 

§ 3, and that the case law applying that constitutional provision which holds that the immunity granted to a defendant by 

a completed bar cannot be impaired by a subsequent legislative act, has become inapplicable by the language of § 25-228. 

They argue that the language indicates that the Legislature 

intended § 25-228 to apply to cases like theirs, “notwithstanding” the constitutional provision and this court’s prior interpretation of it.

[4] We note that contrary to the reading of “any other 

provision of law” in § 25-228 as urged by the plaintiffs, the 

word “law” could reasonably be read as referring to any other 

statute of limitations that might be applicable to an action 
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described in § 25-228. Assuming that the plaintiffs’ urged 

reading is also a reasonable interpretation of the statutory language, § 25-228 could be considered ambiguous and therefore 

open to construction by reference to its legislative history. See 

Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 1016, 885 

N.W.2d 723, 728 (2016) (“[i]n order for a court to inquire 

into a statute’s legislative history, the statute in question must 

be open to construction, and a statute is open to construction 

when its terms require interpretation or may reasonably be 

considered ambiguous”).

Regarding the legislative history of § 25-228, we note that 

during floor debate of the bill that became § 25-228, the sponsor of the bill stated, “[T]here is no attempt at retroactivity 

to the extent that statute[s] of limitations under the currently 

existing paradigm have already run,” Floor Debate, L.B. 612, 

Judiciary Committee, 102d Leg., 2d Sess. 36 (Jan. 27, 2012), 

and “in terms of fairness, this does not resurrect any already 

extinct cases under the prior statute[s] of limitations,” Id. at 38. 

While stating that the bill would not “resurrect” actions upon 

which the existing statutes of limitations had run, the sponsor 

added that the Legislature did not have the authority to do so, 

stating that “any legislator lacks the constitutional authority 

to go back and, so to speak, unextinguish [sic] already extinguished statute[s] of limitations. . . . [T]he case law has been 

quite clear on that.” Id. at 36.

[5] The legislative history of § 25-228 therefore indicates 

that the Legislature did not intend for the new time limitation 

to apply to actions for which the existing statute of limitations 

had run at the time § 25-228 was enacted. Therefore, to the 

extent the phrase “any other provision of law” in § 25-228 

is ambiguous, the legislative history makes clear that the 

Legislature did not intend for the language to indicate, as the 

plaintiffs urge, that the new statute, § 25-228, would apply 

“notwithstanding” Neb. Const. art. I, § 3, and this court’s 

interpretation of this constitutional provision. Leaving aside 

the question whether the Legislature could exempt a statute 
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from the requirements of a constitutional provision, the legislative history for § 25-228 indicates that in this instance, the 

Legislature did not attempt to do so.

Because the Legislature did not intend in § 25-228 to impair 

a defendant’s vested right in a completed bar, we need not 

consider the plaintiffs’ challenge to Givens v. Anchor Packing, 

237 Neb. 565, 466 N.W.2d 771 (1991), and the related line 

of cases. Instead, we apply the statute in the manner the 

Legislature enacted it, and we determine that § 25-228 does 

not apply to an action that was already barred under the existing statutes of limitations at the time § 25-228 was enacted 

in 2012.

We note for completeness that on May 3, 2017, the 

Legislature passed L.B. 300, which repeals the version of 

§ 25-228 that was enacted in 2012 and enacts a new version 

which provides, inter alia, that no time limitation applies to the 

types of actions specified in the statute, but that the new version of the statute applies to a violation that occurred prior to 

the effective date of the amendment only “if such action was 

not previously time barred.” The Governor approved L.B. 300 

on May 9, but L.B. 300 did not contain an emergency clause, 

and therefore it will not be effective until 3 months after the 

Legislature adjourned its 2017 session. See Neb. Const. art. 

III, § 27. We note that in this case, we examine and apply the 

version of § 25-228 in effect from the enactment of the statute 

in 2012 until the effective date of L.B. 300.

Because the applicable statutes of limitations on the plaintiffs’ action against McCoy had run in 2010, and because 

§ 25-228 did not extend the period of limitations for actions 

that had already been barred when it was enacted in 2012, 

we conclude that the district court did not err when it determined that the plaintiffs’ action was barred when they filed 

their complaint in 2016. The determination that the action was 

barred by the statutes of limitations was sufficient to support 

the dismissal of “Jane Doe’s” causes of action, and, because 

“John Doe’s” allegations are derivative of a viable complaint 
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filed by “Jane Doe,” see Rasmussen v. State Farm Mut. Auto. 

Ins. Co., 278 Neb. 289, 770 N.W.2d 619 (2009), and Schendt 

v. Dewey, 246 Neb. 573, 520 N.W.2d 541 (1994), his cause of 

action for loss of consortium was also properly dismissed.

CONCLUSION

We conclude that the action in this case was barred by the 

applicable statutes of limitations. Because this determination is 

dispositive of the appeal, we do not consider the issue regarding the plaintiffs’ use of pseudonyms. We therefore affirm the 

district court’s order dismissing the plaintiffs’ complaint.

Affirmed.