Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/22/2017 01:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
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 limita-
tions 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,
K elch, and Funke, JJ.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
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 deter-
mined 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 plain-
tiffs’ 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 stat-
utes of limitations and the plaintiffs alleged no facts that
would exempt the claims from the statutes of limitations and
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
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 indi-
cated 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 effec-
tive until July 19, 2012, did not apply. The court concluded
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
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] custom-
ary 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
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 appli-
cable 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 con-
troversy before it).
The district court determined that the only applicable stat-
utes 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 plain-
tiff 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
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 plain-
tiffs 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 statu-
tory 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
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 limita-
tions 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 prescrib-
ing limitations on actions” and that “[a]s such, its amendment
cannot resurrect an action which the prior version of the stat-
ute had already extinguished.” 237 Neb. at 569, 466 N.W.2d
at 773.
The plaintiffs argue that the precedent cited by the dis-
trict 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]otwithstand-
ing 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 provi-
sion of law” as used in § 25-228 includes Neb. Const. art. I,
§ 3, and that the case law applying that constitutional provi-
sion which holds that the immunity granted to a defendant by
a completed bar cannot be impaired by a subsequent legisla-
tive 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, “notwithstand-
ing” the constitutional provision and this court’s prior inter-
pretation 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
described in § 25-228. Assuming that the plaintiffs’ urged
reading is also a reasonable interpretation of the statutory lan-
guage, § 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 spon-
sor 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 extin-
guished 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
from the requirements of a constitutional provision, the legis-
lative 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 exist-
ing 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 ver-
sion 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 plain-
tiffs’ 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 deter-
mined 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DOE v. McCOY
Cite as 297 Neb. 321
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 regard-
ing the plaintiffs’ use of pseudonyms. We therefore affirm the
district court’s order dismissing the plaintiffs’ complaint.
A ffirmed.