                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                              GARDNER V. BURKLEY ENVELOPE CO.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                BRYANT A. GARDNER, APPELLANT,
                                                V.

                            BURKLEY ENVELOPE COMPANY, APPELLEE.


                               Filed April 3, 2018.   No. A-17-595.


       Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge.
Affirmed.
       Bryant A. Gardner, pro se.
       D.C. “Woody” Bradford III, of Houghton, Bradford & Whitted P.C., L.L.O., for appellee.


       MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Bryant A. Gardner filed a negligence suit against Burkley Envelope Company (Burkley)
in the district court for Douglas County. The court granted Burkley’s motion to dismiss Gardner’s
complaint. On appeal, Gardner generally argues the district court erred in finding that his suit was
barred by the statute of limitations. We affirm.
                                        BACKGROUND
        On December 8, 2016, Gardner filed a complaint, seeking $100,000,000 in damages due
to an injury that he alleged he suffered on April 16, 2009 as the result of Burkley’s negligence.
Burkley filed a motion to dismiss Gardner’s complaint, alleging the statute of limitations for
negligence claims barred Gardner’s cause of action. In Gardner’s reply to Burkley’s motion to
dismiss, he alleged that the statute of limitations did not “attach” because he is currently under



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disability and remains totally disabled for all practical purposes, citing Walter v. Union Real Estate
Co., 107 Neb. 144, 185 N.W.2d 323 (1921).
        The district court held a hearing on Burkley’s motion to dismiss on February 2, 2017, at
which each party argued. On March 29, the district court entered an order on Burkley’s motion to
dismiss. The court found that the 4-year statute of limitations in Neb. Rev. Stat. § 25-207 (Reissue
2016) barred Gardner’s complaint as written because it failed to set forth any excuse tolling the
bar of the statute. The court granted Burkley’s motion to dismiss without prejudice and granted
Gardner leave to file an amended complaint within 10 days to allege facts showing the statute of
limitations was tolled.
        Gardner timely filed an amended complaint, alleging he was injured in an accident on April
16, 2009, while operating a semitrailer truck. He alleged that Burkley’s employees caused the
accident by improperly loading the semitrailer and that he was briefly rendered unconscious and
suffered injuries to his head, neck, and lower back. He further alleged that he brought a disability
claim, that the Nebraska Supreme Court upheld a finding that he was permanently and totally
disabled, that he continues to seek mental and physical therapy as a result of the accident, and that
he falls under the “continuous treatment doctrine.” Gardner again asked the court to award him
$100,000,000 in damages for his injuries.
        Burkley filed a motion to dismiss Gardner’s amended complaint, alleging Gardner failed
to allege sufficient facts to show a tolling of the statute of limitations under Neb. Rev. Stat.
§ 25-213 (Reissue 2016). Burkley specifically alleged that Gardner failed to allege the period of
time he was incapacitated following his 2009 accident and that his incapacity rendered him
incapable of understanding his legal rights or evaluating and communicating information
necessary to protect those rights.
        Gardner subsequently filed two, largely identical, amended complaints containing further
allegations regarding the accident and Gardner’s workers’ compensation action arising therefrom.
        The district court held a hearing on Burkley’s motion to dismiss on May 8, 2017. Gardner
offered a copy of the two most recent amended complaints and an order on cross motions for
summary judgment from a professional negligence action that Gardner brought against his
workers’ compensation attorney for his failure to sue Burkley. The order granted the attorney’s
motion for summary judgment, finding the 2-year statute of limitations on professional negligence
actions barred Gardner’s claim. The order noted that the attorney informed Gardner on January
19, 2012. of the statute of limitations for a claim against Burkley.
        On May 12, 2017, the district court issued an order sustaining Burkley’s motion to dismiss,
finding the 4-year statute of limitations on negligence actions barred Gardner’s complaint. The
court found that Gardner had not “sustained his burden of proof to show that he was incapacitated
following the accident which occurred on April 16, 2009, to the extent that it rendered him
incapable of understanding his legal rights or elevating [sic] and communicating information
necessary to protect those rights.” The court dismissed Gardner’s amended complaint with
prejudice. Gardner appeals.
                                   ASSIGNMENTS OF ERROR
       Gardner generally argues the district court erred in dismissing his complaint.



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                                     STANDARD OF REVIEW
       A district court’s grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of
the nonmoving party. Amend v. Neb. Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).
                                              ANALYSIS
         To prevail against a motion to dismiss for failure to state a claim under Neb. Ct. R. Pldg.
§ 6-1112(b)(6), a plaintiff must allege sufficient facts to state a claim to relief that is plausible on
its face. Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017). The district court found that
Gardner’s complaint failed to allege sufficient facts to show that the statute of limitations did not
bar his claim. After our de novo review, we find no error by the district court.
         A “statute of limitations” is a law declaring that no suit shall be maintained on certain
described causes of action unless brought within a specified period of time after the right accrued.
Intervision Sys. Techs. v. InterCall, 23 Neb. App. 360, 872 N.W.2d 794 (2015). A statute of
limitations impacts the ability to file suit in court. It is a complete bar to causes of action based
only on the passage of time. Id.
         As a general rule, where a complaint does not disclose on its face that it is barred by the
statute of limitations, a defendant must plead the statute as an affirmative defense. In that event,
the defendant has the burden to prove that defense. Strode v. City of Ashland, 295 Neb. 44, 886
N.W.2d 293 (2016). If, however, 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. Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013). An
action accrues and the statutory time within which the action must be filed begins to run when the
injured party has the right to institute and maintain a lawsuit, although the party may not know the
nature and extent of the damages. Strode, supra.
         Section 25-207 provides that “[t]he following actions can only be brought within four
years: . . . (3) an action for an injury to the rights of the plaintiff not arising on contract . . . .”
Gardner’s complaint shows on its face that the cause of action arose on April 16, 2009. He did not
file his action until December 8, 2016, more than 7 years later. Thus, the complaint, on its face, is
barred by the statute of limitations. Gardner then had the burden to allege facts to avoid the time
bar. Lindner, supra.
         In his amended complaint, Gardner alleged that he was found to be permanently and totally
disabled as a result of the accident in question. Gardner argues that the statute of limitations was
tolled because of his disability.
         Neb. Rev. Stat. § 25-213 provides for the tolling of the statute of limitations in various
circumstances. It states, in relevant part, as follows:
         [I]f a person entitled to bring any action mentioned in Chapter 25, the Political Subdivisions
         Tort Claims Act, the Nebraska Hospital-Medical Liability Act, the State Contract Claims
         Act, the State Tort Claims Act, or the State Miscellaneous Claims Act, except for a penalty
         or forfeiture, for the recovery of the title or possession of lands, tenements, or
         hereditaments, or for the foreclosure of mortgages thereon, is, at the time the cause of action
         accrued, within the age of twenty years, a person with a mental disorder, or imprisoned,



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       every such person shall be entitled to bring such action within the respective times limited
       by Chapter 25 after such disability is removed. (Emphasis supplied.)

         A person with a “mental disorder” under § 25-213 is one who suffers from a condition of
mental derangement that actually prevents the sufferer from understanding his or her legal rights
or from instituting legal action. Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011). It is an
incapacity that disqualifies a person from acting for the protection of his or her rights. Id. In
Maycock, the Nebraska Supreme Court addressed § 25-213’s tolling provision in the context of a
medical malpractice action that the representatives of a decedent’s estate brought on his behalf.
The representatives presented evidence that the decedent was comatose and suffering from a
mental disorder at some point prior to the filing of the complaint. The Supreme Court affirmed this
court’s determination that summary judgment in favor of the doctors was in error due to the
existence of genuine issues of material fact regarding whether and on what dates the action may
have been tolled under § 25-213.
         Here, Gardner has not alleged sufficient facts to support a finding that the tolling provisions
of § 25-213 should apply. While Gardner has alleged that he suffered an injury to his head and
was found permanently and totally disabled, presumably in his workers’ compensation claim, he
has not alleged facts showing that he was unable to understand his legal rights or that a mental
derangement prevented him from bringing suit. And the evidence Gardner submitted at the hearing
on Burkley’s second motion to dismiss shows that he was aware of his right to bring suit against
Burkley since at least January 19, 2012, when his workers’ compensation attorney sent him a
letter refusing to file the third party action against Burkley and advising Gardner of the deadline
to do so.
         Gardner refers to Walter v. Union Real Estate Co., 107 Neb. 144, 185 N.W. 323 (1921), in
support of his argument that his action is not time-barred. In Walter, the owner of real estate
neglected to record the deed to his land after he purchased it. Due to his mental health, he was
institutionalized for several years and continued to be mentally incompetent after his discharge
from the hospital. During this time, the owner of a tax lien on the land foreclosed on it. After
recording his deed to the land, the former owner brought an action to quiet title against the land’s
present owner. The Nebraska Supreme Court held the statute of limitations on the quiet title action
did not begin to run until the former owner was restored to his mental powers such that he could
comprehend he was the owner of property and take some action to protect his rights.
         We conclude the Walter case does not support Gardner’s position that the statute of
limitations should be tolled. Again, Gardner has only alleged that he is permanently and totally
disabled. He has not alleged that he was mentally incapacitated and unable to comprehend his legal
rights or to take action to protect them.
         Because Gardner failed to present plausible allegations to avoid the bar of the statute of
limitations, we conclude the district court did not err in dismissing his complaint.
                                           CONCLUSION
       The district court did not err in dismissing Gardner’s complaint as barred by § 25-207.
                                                                                       AFFIRMED.



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