                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 31, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JACALYN PATTERSON,

             Plaintiff-Appellant,

v.                                                         No. 11-3357
                                               (D.C. No. 5:10-CV-04094-CM-GLR)
BEN WILLIAMS; CHRISTOPHER                                   (D. Kan.)
WILLIAMS; KRISTINE C. WILLIAMS,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.


      Some years ago, Kansas resident Jacalyn Patterson sued the Williams family

in Arizona state court. The problem was, the Williamses’ son Ben — who

Ms. Patterson claimed hit her with the family truck — had summer vacation plans.

The parties agreed to a continuance but it was conditioned, Ms. Patterson says, on a

guarantee that Ben would be back in time to testify. When Ben didn’t return in time

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and the trial continued without him, Ms. Patterson cried foul. In her mind, she and

the Williamses had a contract and by failing to produce Ben, the Williamses breached

it.

       In August 2010 — almost six years after the Arizona trial — Ms. Patterson

brought this diversity suit in federal district court in Kansas. She alleged the

Williamses breached a contract, though it’s unclear whether the alleged contract was

oral or somehow reduced to writing. For its part, the district court dismissed the case

on the Williamses’ Rule 12(b)(6) motion. It explained that “regardless of whether

the contract is written or oral, plaintiff failed to file her complaint within the statute

of limitations required by Kansas for breach of contract.” Patterson v. Williams,

No. 10-CV-04094-CM-GLR, 2011 WL 5142757, at *2 (D. Kan. Oct. 28, 2011).

       In this appeal, Ms. Patterson says the district court applied Kansas’s statute of

limitations in error. She argues that because the contract was made and breached in

Arizona, the district court should have applied Arizona’s six-year statute of

limitations. See Ariz. Rev. Stat. § 12-548.

       Unfortunately for Ms. Patterson, Kansas’s choice-of-law rules — which the

district court must apply when sitting in diversity, see Garcia v. Int’l Elevator Co.,

358 F.3d 777, 779 (10th Cir. 2004) — are unambiguous. They require Kansas courts

to “appl[y] [their] own statutes of limitations to actions before [them].” Muzingo v.

Vaught, 859 P.2d 977, 980 (Kan. Ct. App. 1993). And under Kansas’s statutes of

limitations, actions on oral contracts must be brought within three years and actions


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on written contracts must be brought within five. See Kan. Stat. Ann. §§ 60-511,

-512. Ms. Patterson thus can’t maintain the suit she filed some six years after the

alleged breach occurred — too late under either of Kansas’s potentially controlling

statutes of limitation.

       To be sure, most rules admit of exceptions, and the rule that Kansas courts

apply Kansas limitations periods is no different. But neither of the two exceptions

Ms. Patterson invokes before us actually applies.

       First, Kansas courts will go ahead and apply statutes of limitations from other

states when the Kansas borrowing statute requires them to. See Kan. Stat. Ann.

§ 60-516 (“Where the cause of action has arisen in another state . . . and by the laws

of the state . . . cannot be maintained thereon by reason of lapse of time, no action

can be maintained thereon in this state except in favor of one who is a resident of this

state and who has held the cause of action from the time it accrued.”). But the

borrowing-statute exception is of use only on defense, a tool to keep nonresident,

forum-shopping plaintiffs from exploiting advantageous Kansas limitations periods.

See, e.g., Peoples Mortg. Corp. v. Kan. Bankers Sur. Trust Co., No. 01-CV-2414-

KHV, 2002 WL 68500, at *5 (D. Kan. Jan. 9, 2002) (applying shorter Colorado

limitations to bar action brought in Kansas). It won’t work “to make timely an action

barred by Kansas law,” because § 60-516 does nothing to change the fact that

“[a]nother state’s statute may not be used to extend the Kansas limitations period.”

Muzingo, 859 P.2d at 980 (emphasis added).


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       Second, Kansas courts will adopt out-of-state limitations periods when

plaintiffs sue on foreign statutes that have their own limitation periods “built in.”

See id. But this exception, too, fails to help Ms. Patterson’s case. She hasn’t alleged

any violation of any statutory right, much less any corresponding “built in”

limitations period that could save her case.

       Even if Kansas limitations laws do apply, Ms. Patterson insists Ben’s absence

should have tolled the clock and in this way rendered her claim timely. By her own

admission, however, Ms. Patterson knew Ben was in Australia and she has never

alleged he wasn’t subject to process. This much is fatal to her tolling claim because

Kansas law expressly states that tolling “shall not apply to extend the period of

limitation as to any defendant whose whereabouts are known and upon whom service

of summons can be effected.” Kan. Stat. Ann. § 60-517.

       Alternatively still, Ms. Patterson argues the Williamses should be judicially

estopped from relying on Kansas limitations laws because they once cited Arizona

limitations law in their initial brief before the district court. The difficulty is this

doctrine generally applies only when “the position to be estopped [is] one of fact

rather than of law or legal theory” so that errors of law aren’t inadvertently

ensconced in the law books. Johnson v. Lindon City Corp., 405 F.3d 1065, 1069




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(10th Cir. 2005). And here, of course, Ms. Patterson accuses the Williamses of

changing a position of law, not fact.

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               Neil M. Gorsuch
                                               Circuit Judge




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