UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ VIRGIL WILLE, Plaintiff - Appellant,

v. GRANT DAVIS, Defendant - Appellee.

––––––––––––––––––– –––––––––––––––– RONALD M. BO EHMER; RONDA CARRANZA, Plaintiffs - Appellants,

v. GRANT DAVIS, Defendant - Appellee.

––––––––––––––––––– –––––––––––––––– PEGGY S. WALDON; JAMES CHARLES WALDON; MARILYN SMITH, Plaintiffs - Appellants,

v. GRANT DAVIS, Defendant - Appellee. No. 15-3167 (D.C. No. 5:11-CV -04121-RDR-KGS) (D. Kan.)

No. 15-3204 (D.C. No. 5:11-CV-04059-KHV) (D. Kan.)

No. 15-3205 (D.C. No. 5:11-CV-04060-KHV) (D. Kan.)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### May 27, 2016
Elisabeth A. Shumaker Clerk of Court2 ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and PHILLIPS , Circuit Judges.

________________ _________________ In these consolidated appeals, Plain tiffs Virgil Wille (No. 15-3167), Ronald Boehmer and Ronda Carranza (No. 15-32 04), and Peggy Waldon, James Charles Waldon, and Marilyn Smith (No. 15-3205), appeal three nearly identical district court orders granting summary j udgment in favor of Defe ndant Grant Davis on legal malpractice clai ms. The district court ruled the cl aims were time barred. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.
I In 2002, Davis represented a number of individuals, includi ng the Plaintiffs involved in this appeal, in over 300 personal-inj ury lawsuits filed in Missouri state court. The cases were brought against R obert Courtney, a pharmacist who admitted to diluting chemotherapy drug s, along with Eli Lilly and Company (“Eli Lilly”) and Bristol-Myers Squibb Company (“Bristol-Myer s”), who allegedly failed to prevent their drugs from being diluted. In October 2002, Davis negotiated a global settlement with Eli Lilly and Bristol-Myers. Each of the Plaintiffs signed two

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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. 32.1.3 documents in November 2002 to join in th is settlement: a Di sclosure of Global Settlement (the “Disclosure”), and a Re lease and Settlement Agreement (the “Settlement Agreement”). 1
The Disclosure stated th at the global settlement included over 300 separate lawsuits, that Davis’ law fi rm represented the majority of the plaintiffs in those lawsuits, and that Eli Lilly and Bristol-Myer s were making a joint settlement offer to resolve all of the cases. It explained that the settleme nt was contingent on payment of all claims from one combined fund and on all of the plaintiffs releasing the drug companies from liability . The Disclosure also indicated , by reference to the attached Settlement Agreement, that a special mast er would determine at a later date the amount to be deposited in the combined fund and the amount each plaintiff would receive. By signing the Settlement Agreem ent, Plaintiffs acknowledged that they understood the settlement process and agreed to acc ept the settlement amount ultimately determined by the special master. Finally, the Disclosure stated that Eli Lilly and Bristol-Myers had offered a sepa rate settlement fo r $1,450,000 to one plaintiff, Georgia Hayes, w ho would not be participating in the combin ed settlement fund. Special masters later evaluated all of the individual claims and, in 2003, a Missouri court approved individual set tlement allocations to Plaintiffs.

1 Davis represented Evelyn Wille in th e underlying litigation; Virgil Wille is her surviving husband. Evelyn Wille signed the Disclosure and Settlement Agreement.4 In 2003, the Tilzers, who were other clients of Davis included in the global settlement, moved in Missouri state court to void their Sett lement Agreement. They argued it was an aggregate settlement agre ement governed by Rule 4-1.8(g) of the Missouri Rules of Professional Conduct, and that Davis fail ed to make the disclosures required by that rule. The Miss ouri court denied the Tilzers’ motion in January 2004. The Tilzers did not appeal; instead, they filed a legal malpractice suit against Davis in Kansas state court arguing he violated Ru le 4-1.8(g). In April 2009, the Kansas Supreme Court ruled the Se ttlement Agreement was an aggregate settlement agreement and thus Davis was re quired to make disclosures under Rule 4- 1.8(g). Tilzer v. Davis, Bethune & Jones, L.L.C., 204 P.3d 617, 628-29 (Kan. 2009). All of the pleadings in th e Tilzer case were filed under seal, and the Tilzers’ attorney, William Skepnek, was barred from contacting any of Davi s’ other clients. That restriction was lift ed in December 2009. Ske pnek contacted the Boehmer Plaintiffs in December 2009, th e Waldon Plaintiffs in July 2010, and Wille in 2011. The Boehmer and Waldon Plaintiffs filed thei r legal malpractice cl aims against Davis on June 15, 2011. Wille filed his claim ag ainst Davis on Septem ber 29, 2011. All Plaintiffs alleged that they lost settlement value in the underlying case because Davis failed to disclose hi s conflicts of interest, concealed the total settlement amount and the specific amounts awarded each client, and concealed the crite ria and methodology used to determine the awards, as required by Rule 4-1.8(g). Davis moved for summary judgment, ar guing Plaintiffs’ claims were time barred. The district court granted Davis’ mo tion. It ruled that Plaintiffs were aware5 of the facts necessary to support their claims in 2003 wh en they rece ived their settlement awards, or at the very latest when the Tilzer decision issued. The court also rejected Plaintiffs’ argument that Davis should be e quitably estopped from asserting a statute-of-limitations de fense. Plaintiffs now appeal.
II “We review the district court’s grant of summary judgment de novo, applying the same standard as the di strict court.” Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d 1267, 1268 (10th Ci r. 2012). Summary judgmen t is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). All parties agree that Kans as law controls the statut e-of-limitations issue in this diversity case. The limi tations period for a legal malp ractice claim in Kansas is two years. Mashaney v. Bd. of Indigents’ Def. Servs., 355 P.3d 667, 672 (Kan. 2015) (citing Kan. Stat. § 60-513(a)(4)). 2 “In general, a cause of action accrues, so as to start the running of th e statute of limitations , as soon as the right to maintain a legal action arises.” Pancake House, Inc. v. Redmond ex rel. Redmond, 716 P.2d 575, 579 (Kan. 1986). Kansas recognizes the “dis covery rule,” however, under which the

2 Plaintiffs’ complaints based their ma lpractice claims on negligence, fraud, and breach of fiduciary duty. Fraud a nd breach-of-fiduciary-duty claims have a two-year limitations period under Kan. Stat. § 60-513(a)(3), and to rt claims have a two-year limitations period under § 60-513( a)(4). For the first time on appeal, Plaintiffs argue the district court failed to apply § 60-513(a)(3) to their fraud and breach-of-fiduciary-duty claims. We c onsider this argumen t forfeited. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 11 43 (10th Cir. 2009) (“Absent extraordinary circumstances, we will not c onsider arguments raised for the first time on appeal.”).6 limitations period does not begin to run “un til the fact of injury becomes reasonably ascertainable to the injured party.” Ka n. Stat. § 60-513(b); see also Mashaney, 355 P.3d at 673. A legal malpractice clai m accrues when the plaintiff reasonably ascertains that her injury is the result of the a ttorney’s negligence. Dearborn Animal Clinic, P.A. v. Wilson, 806 P.2d 997, 1006 (Kan. 1991). “Reasonably ascertainable does not mean actual knowledge.” Davidson v. Denning, 914 P.2d 936, 948 (Kan. 1996) ( quotations omitted). An injury is “reasonably ascertainable” under § 60-513(b) “when the plaintiff knew or could reasonably have been expected to know of the alleged negligence.” Knight v. Myers, 748 P.2d 896, 901 (Kan. Ct. App. 1988). “The term ‘reasona bly ascertainable’ carries with it an obligation to investigate available factual sources.” Bi-State Dev. Co., Inc. v. Shafer, Kline & Warren, Inc. , 990 P.2d 159, 162 (Kan. Ct. App. 1999). Plaintiffs contend that they could not have discovered e ither their injury or that their injury was the result of Davis’ malpractice un til the Kansas Supreme Court’s Tilzer decision was issued. They concede that the Til zer decision itself is not a material fact, but argue the decision impa rted knowledge of facts that were not previously known. But even assuming that Plaintiffs’ malprac tice claims against Davis were not reasonably ascertainable until the Tilzer decision, we agree with the district court that Plaintiffs ’ claims are nonetheless time barred because they were filed more than two years after Til zer was issued on April 3, 2009. Plaintiffs argue they are not expected to follow developmen ts in case law and they could not have learned about the Ti lzer decision until contacted by Skepnek.7 But “Kansas courts charge parties with c onstructive notice of pub lic records.” Id. Any facts disclosed by the Tilz er case were a matter of public record as soon as the decision was issued by the Kansas Supreme Court. See Stephens v. Van Arsdale, 608 P.2d 972, 981 (Kan. 1980) (holding that court record s are generally open public records). 3 “[T]he Kansas Supreme Court [has ] held that a party charged with constructive notice cannot cl aim ignorance of public record s in order to toll the statute of limitations.” Bi -State, 990 P.2d at 162 (citing Travis v. Glick, 91 P.2d 41, 47 (Kan. 1939)). This rule a pplies to lawyers and laypersons alike. See id.; Knight, 748 P.2d at 901-02. The district court corr ectly ruled Plaintiffs were charged with constructive knowledge of Tilzer once it was issued on April 3, 2009, and thus their claims, filed more than two years later, are time barred. Plaintiffs also argue that the district court erred in rejecting their argument that Davis should be equitably es topped from advancing a statut e-of-limitations defense. They contend he opposed disclosure of hi s clients’ names to Skepnek for several months after the Tilzer decision issued , which delayed them learning about the opinion. Under Kansas law, a defendant can be estopped from asserting a statute-oflimitations defense if he induced the plain tiff to delay filing an action “either through affirmative acts or through silence concerning material facts when under affirmative

3 Although the pretrial proceed ings were sealed, it is u ndisputed that the Tilzer decision was issued by the Kansas Suprem e Court and became available to the public on April 3, 2009.8 duty to speak.” City of Wichita v. U. S. Gypsum Co., 72 F.3d 1491, 1499-1500 (10th Cir. 1996). “There mu st be some actual artifice to prevent knowledge of the fact, some affirmative act of concealment, or some mi srepresentation to exclude suspicion and prevent injury .” Friends Univ. v. W.R. Grace & Co., 608 P.2d 936, 941 (Kan. 1980) (quotation omitt ed). “The question is wh ether 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 concealme nt.” Id. (quot ation omitted). Plaintiffs have not alleged that Davis engaged in artifi ce, misrepresentation, or concealment of facts giving rise to their claims. Davis’ opposition to the disclosure of his clients’ names to Skepnek did not in volve any facts giving rise to Plaintiffs’ claims. Moreover, given that Plaintiffs are charged with constructive knowledge of the Tilzer decision when it was issued, the date on whic h Skepnek contacted any of the Plaintiffs is immaterial to the running of the limitati ons period. Id. (“There can be no concealment which will prevent the runni ng of the statute of limitations where the cause of action is known to the plain tiff or there is a presumption of such knowledge.” (quotation omitted)). 4

4 Many of Plaintiffs’ appellate argumen ts were raised for the first time on appeal, and therefore are forfeited, see Turner, 563 F.3d at 1143, including their argument that district court failed to accep t the Tilzer decision as dispositive and their fraud and breach-of-fiduciary-duty argu ments based on Great Plains Christian Radio, Inc. v. Central Tower, In c., 399 F. Supp. 2d 1185 (D. Kan. 2005).9 III The motion to file appendices under seal is GRANTED . The district court’s judgments are AFFIRMED

.
Entered for the Court

Carlos F. Lucero Circuit Judge