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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

Kathleen Chafin, appellant, v. Wisconsin Province

of the Society of Jesus and the Catholic

Archdiocese of Omaha, appellees.

___ N.W.2d ___

Filed September 21, 2018. No. S-17-1059.

1. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

2. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court 

reviews a district court’s order granting a motion to dismiss de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

3. Limitations of Actions: Fraud. An action for fraud does not accrue 

until there has been a discovery of the facts constituting the fraud, or 

facts sufficient to put a person of ordinary intelligence and prudence on 

an inquiry, which, if pursued, would lead to such discovery.

4. Limitations of Actions: Pretrial Procedure. Discovery, as applied to 

the statute of limitations, occurs when one knows of the existence of an 

injury or damage and not when he or she has a legal right to seek redress 

in court.

5. Limitations of Actions: Pleadings: Proof. If the complaint on its face 

shows that the cause of action is time barred, the plaintiff must allege 

facts to avoid the bar of the statute of limitations and, at trial, has the 

burden to prove those facts.

6. Fraud: Estoppel: Limitations of Actions: Proof. In order to successfully assert the doctrine of fraudulent concealment and thus estop the 

defendant from claiming a statute of limitations defense, the plaintiff 

must show the defendant has, either by deception or by a violation of a 

duty, concealed from the plaintiff material facts which prevent the plaintiff from discovering the misconduct.

7. Fraud: Pleadings: Time. Allegations of fraudulent concealment for 

tolling purposes must be pleaded with particularity.

Nebraska Supreme Court Online Library

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

11/02/2018 09:12 AM CDT
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

8. Motions to Dismiss: Fraud: Pleadings: Proof. In order to survive a 

motion to dismiss, a complaint alleging fraudulent concealment must 

plead with particularity how material facts were concealed to prevent 

the plaintiff from discovering the misconduct and how, through due 

diligence, the plaintiff failed to discover his or her injury.

9. Pleadings: Words and Phrases. Pleading facts with particularity means 

the who, what, when, where, and how: the first paragraph of any newspaper story.

Appeal from the District Court for Douglas County: Shelly

R. Stratman, Judge. Affirmed.

Thomas C. Dorwart and Benjamin E. Maxell, of Govier, 

Katskee, Suing & Maxell, P.C., L.L.O., for appellant.

James J. Frost, of McGrath, North, Mullin & Kratz, P.C., 

L.L.O., for appellee Wisconsin Province of the Society of 

Jesus.

Patrick M. Flood and Lisa M. Meyer, of Pansing, Hogan, 

Ernst & Bachman, L.L.P., for appellee Catholic Archdiocese 

of Omaha.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Kathleen Chafin sued two religious organizations, alleging 

that when she gave birth, these organizations kidnapped her 

newborn son and fraudulently concealed his adoption. Based 

upon the statute of limitations, the district court dismissed her 

amended complaint. Chafin contends that her allegation of 

fraudulent concealment tolled the statute. Because a pleading 

rule requires the facts of fraudulent concealment to be stated 

with particularity and because Chafin pled mere legal conclusions, dismissal was correct. Therefore, we affirm.
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Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

BACKGROUND

1969 Adoption

Because of the procedural posture, we state facts as alleged 

in the amended complaint. And at this stage, we are required 

to assume that these allegations are true. Chafin gave birth to 

a son in 1969, who was then put up for adoption through the 

Wisconsin Province of the Society of Jesus and the Catholic 

Archdiocese of Omaha (collectively the Church). Chafin alleges 

that her son was fraudulently adopted without her consent and 

that the Church concealed this fraud over 40 years, until Chafin 

reunited with her son in 2015.

In 1968, Chafin discovered she was pregnant and left college to return home to Omaha, Nebraska. After the discovery 

of the pregnancy, Father Thomas A. Halley “forced” Chafin to 

sign a contract for room and board in a residence for young 

unmarried pregnant women. The complaint alleges that “the 

end-game in this process was to provide babies for compliant 

couples in good standing with the [Church] under for-profit 

fraudulent adoptions.”

While at the residence, Chafin arranged for her grandmother 

“to rescue her from this nightmare” of the residence. Before 

Chafin’s grandmother arrived, Chafin went into labor and the 

baby was immediately “taken” from her.

We set forth the allegations of fraudulent concealment in the 

analysis section below.

Motion to Dismiss

The Church moved to dismiss the amended complaint for 

failure to state a claim. The district court determined that the 

allegations failed to toll the statute of limitations for various 

reasons. It reasoned that the amended complaint failed to plead 

sufficient facts to overcome the statute of limitations. The court 

granted the motion and dismissed the claims with prejudice.

Chafin filed a timely appeal, which we moved to our docket.1

1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

ASSIGNMENTS OF ERROR

Chafin assigns generally that the district court erred (1) 

in dismissing her amended complaint and (2) in evaluating 

its merits.

[1] But Chafin’s argument is quite limited. To be considered 

by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party 

asserting the error.2 Chafin argues only that the fraudulent 

concealment of the adoption persisted until she discovered her 

son in 2015, therefore tolling the statute of limitations. Thus, 

we confine her assignment of error to her specific argument 

regarding fraudulent concealment.

STANDARD OF REVIEW

[2] An appellate court reviews a district court’s order granting a motion to dismiss de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.3

ANALYSIS

Statute of Limitations

The Church asserts that Chafin’s claims are barred by a 

4-year statute of limitations. Neb. Rev. Stat. § 25-207(3) 

(Reissue 2016) sets forth a 4-year statute of limitations for 

“an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated.” Although a 

claim under § 25-207 can be asserted at the time the cause of 

action accrued, “an action for relief on the ground of fraud 

. . . shall not be deemed to have accrued until the discovery of 

the fraud.”4

[3,4] An action for fraud does not accrue until there has 

been a discovery of the facts constituting the fraud, or facts 

2 In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014); Carlson 

v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 (2014).

3 Burklund v. Fuehrer, 299 Neb. 949, 911 N.W.2d 843 (2018).

4 § 25-207(4).
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CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

sufficient to put a person of ordinary intelligence and prudence on an inquiry, which, if pursued, would lead to such 

discovery.5 Discovery, as applied to the statute of limitations, 

occurs when one knows of the existence of an injury or damage and not when he or she has a legal right to seek redress 

in court.6

Unless Chafin sufficiently pled fraudulent concealment, 

the statute of limitations began to run in 1969 when Chafin 

discovered the existence of her injury. At that point, Chafin 

knew that the Church facilitated the adoption, knew that the 

child never returned to her, and knew she was injured by the 

adoption because she was not allowed to keep her son. At 

the time of her child’s birth, Chafin was aware of her injury 

and sufficient facts to put a person of ordinary intelligence 

and prudence on inquiry. From these facts, Chafin knew 

who allegedly committed the fraud, what was done, where 

it was done, how it was done, and when her injury from the 

fraud occurred.

Tolling by Fraudulent

Concealment

[5,6] Chafin asserts that fraudulent concealment tolls the 

statute of limitations. If the complaint on its face shows that 

the cause of action is time barred, the plaintiff must allege 

facts to avoid the bar of the statute of limitations and, at trial, 

has the burden to prove those facts.7 In order to successfully 

assert the doctrine of fraudulent concealment and thus estop 

the defendant from claiming a statute of limitations defense, 

the plaintiff must show the defendant has, either by deception 

5 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 

178 (2012).

6 Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005). See, also, 

Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007); 

Kalkowski v. Nebraska Nat. Trails Museum Found., 20 Neb. App. 541, 826 

N.W.2d 589 (2013) (applying general discovery rule to discovery of fraud).

7 See Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).
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CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

or by a violation of a duty, concealed from the plaintiff material facts which prevent the plaintiff from discovering the misconduct.8

 Under the doctrine of fraudulent concealment, the 

plaintiff must show that he or she exercised due diligence to 

discover his or her cause of action before the statute of limitations expired.9

Pleading Fraudulent Concealment

With Particularity

In order to determine whether an allegation of fraudulent 

concealment is sufficient to survive a motion to dismiss, we 

must determine the proper pleading standard. The Church contends that a specific pleading rule controls.

“In all averments of fraud, . . . the circumstances constituting fraud . . . shall be stated with particularity.”10 The heightened pleading requirement stems from the practice at common 

law and under the codes and “imparts a note of seriousness and 

encourages a greater degree of pre-institution investigation by 

the plaintiff.”11

[7] Because we have not specifically considered whether 

§ 6-1109(b) applies to pleading fraudulent concealment to 

avoid a statutory bar and because the Nebraska Court Rules 

of Pleading in Civil Cases are modeled after the Federal Rules 

of Civil Procedure, we may look to federal decisions for 

guidance.12 The Eighth Circuit determined that “allegations of 

fraud, including fraudulent concealment for tolling purposes, 

[must] be pleaded with particularity.”13 While we are not 

8 Andres v. McNeil Co., supra note 6.

9 Id.

10 Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008).

11 See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1296 at 31 (3d ed. 2004).

12 See Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466, 730 N.W.2d 

798 (2007).

13 Great Plains Trust Co. v. Union Pacific R. Co., 492 F.3d 986, 995 (8th Cir. 

2007).
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CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

bound to follow this decision, we are persuaded by the Eighth 

Circuit’s reasoning. Moreover, at oral argument, Chafin effectively conceded that the “particularity” requirement applies 

to fraudulent concealment. We now hold that allegations of 

fraudulent concealment for tolling purposes must be pleaded 

with particularity.

[8,9] In order to survive a motion to dismiss, a complaint 

alleging fraudulent concealment must plead with particularity 

how material facts were concealed to prevent the plaintiff from 

discovering the misconduct and how, through due diligence, 

the plaintiff failed to discover his or her injury.14 “‘This means 

the who, what, when, where, and how: the first paragraph of 

any newspaper story.’”15

Chafin’s brief argued that she “pled specific facts that support her further allegation that the original fraud regarding the 

illegal taking of her baby was fraudulently concealed by the 

[Church] until 2015.”16 At oral argument, she again claimed to 

have alleged specific facts.

So, what did Chafin plead to meet this requirement? Only 

four statements in the amended complaint purport to address 

the period from 1969 to 2015. These were:

• The Church “covered-up and concealed facts and witnesses 

necessary to pursue and [sic] action against them.”

• The concealment continued from the birth of her son until 

they were reunited in 2015.

• The Church “continued in their fraudulent adoption and 

fraudulently covered up and concealed from Chafin any facts 

that would have put her on notice of the adoption fraud and, 

therefore, Chafin was unable to discover the necessary relevant facts to put her on notice of the adoption fraud perpetrated against her.”

14 See Andres v. McNeil Co., supra note 5.

15 Great Plains Trust Co. v. Union Pacific R. Co., supra note 13, 492 F.3d at 

995 (quoting DiLeo v. Ernst & Young, 901 F.2d 624 (7th Cir. 1990)).

16 Brief for appellant at 6.
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CHAFIN v. WISCONSIN PROVINCE SOCIETY OF JESUS

Cite as 301 Neb. 94

• Chafin was unaware of her claims until 2015 as a result of 

the Church’s “deceptions, cover-up, concealment, misrepresentations, illegal suppression of evidence and destruction of 

evidence,” and remained unaware of potential legal claims 

because of the concealment.

But all of these allegations are mere legal conclusions. As 

to fraudulent concealment, the amended complaint simply does 

not tell us the who, what, when, where, and how. Because 

Chafin failed to particularly allege fraudulent concealment, the 

statute of limitations did not toll. Thus, long before 2015, her 

claims were time barred.

CONCLUSION

We conclude that Chafin’s claims are barred by the statute 

of limitations. We therefore affirm the order of the district 

court granting the motion to dismiss her amended complaint 

with prejudice.

Affirmed.