Oltman v. Parde

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
OLTMAN v. PARDE
Cite as 32 Neb. App. 725
Steve A. Oltman and Diane Oltman, appellants,
v. Doug Parde and Cindy Parde, appellees.
___ N.W.3d ___
Filed March 26, 2024. 	No. A-23-353.
1. 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 rea-
sonable inferences in favor of the nonmoving party.
2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face. In cases in which the plain-
tiff does not or cannot allege specific facts showing a necessary element,
the factual allegations, taken as true, are nonetheless plausible if they
suggest the existence of the element and raise a reasonable expectation
that discovery will reveal evidence of the element or claim.
3. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
an order dismissing a complaint, an appellate court accepts as true all
facts which are well pled and the proper and reasonable inferences of
law and fact which may be drawn therefrom, but not the plaintiff’s
conclusion.
4. Motions to Dismiss: Pleadings. As a general rule, when a court grants a
motion to dismiss, a party should be given leave to amend absent undue
delay, bad faith, unfair prejudice, or futility.
5. Pleadings. Leave to amend should not be granted when it is clear that
the defect cannot be cured by amendment.
6. Motions to Dismiss: Rules of the Supreme Court: Pleadings. Because
a motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6) tests the
legal sufficiency of the complaint, not the claim’s substantive merits, a
court may typically look only at the face of the complaint to decide a
motion to dismiss.
7. Motions to Dismiss: Pleadings. A motion to dismiss should be granted
only in the unusual case in which a plaintiff includes allegations that
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show on the face of the complaint that there is some insuperable bar
to relief.
8. Limitations of Actions: Statutes. Limitations are created by statute and
derive their authority therefrom.
9. Limitations of Actions: Presumptions. The statute of limitations is
enacted upon the presumption that one having a well-founded claim will
not delay enforcing it beyond a reasonable time if that person has the
right to proceed.
10. Limitations of Actions. The mischief which statutes of limitations are
intended to remedy is the general inconvenience resulting from delay in
the assertion of a legal right which is practicable to assert.
11. Conversion: Property: Words and Phrases. Conversion is any distinct
act of dominion wrongfully exerted over another’s personal property in
denial of or inconsistent with the rights therein.
12. Fraud: Estoppel: Limitations of Actions: Proof. In order to success-
fully assert the doctrine of fraudulent concealment and thus estop the
defendant from claiming a statute of limitations defense, the plaintiff
must show that 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.
13. 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 the injury.
Appeal from the District Court for Gage County: Ricky A.
Schreiner, Judge. Affirmed.
Lyle Joseph Koenig, of Koenig Law Firm, for appellants.
J.L. Spray and Jacob C. Garbison, of Mattson Ricketts Law
Firm, for appellees.
Riedmann, Arterburn, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Steve A. Oltman and Diane Oltman appeal the Gage County
District Court’s order dismissing their complaint with preju-
dice. We conclude that the statute of limitations bars their
claims; thus, we affirm.

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OLTMAN v. PARDE
Cite as 32 Neb. App. 725
BACKGROUND
On October 5, 2022, the Oltmans sued Doug Parde and
Cindy Parde for conversion, fraudulent concealment, breach
of contract, and spoilation, and they sought common-law
indemnification, punitive damages, and attorney fees. In their
complaint, the Oltmans alleged that in 2003, they began rent-
ing 320 acres of land to the Pardes. In 2007, the Oltmans sold
a 40-acre tract to the Pardes, and the Pardes began renting a
250-acre tract. The Pardes rented the 250-acre tract until the
2017 crop year, after which they bought the tract from the
Oltmans. The Oltmans alleged that “[t]he farm ground was
originally leased by [the Oltmans] to [the Pardes] on a cash
rent basis at the rate of $150.00 an acre, which was increased
to $175.00 an acre in 2007, for the 2008 crop year.” During
the 2008-17 crop years, the Pardes paid rent on 227 acres,
with the remaining 23 acres consisting of pasture and grass
waterways.
While 	the 	Pardes 	rented 	the 	land, 	they 	made 	various
improvements to the property. The Oltmans estimate that they
received construction invoices totaling $36,000 during the
Pardes’ rental period. The complaint does not describe what
improvements 	these 	construction 	invoices 	addressed. 	The
Oltmans claim that they never approved any improvements
on the land. Furthermore, the Oltmans claim that the Pardes
never informed them or the U.S. Department of Agriculture
(USDA) that they put additional acres into production beyond
the 227 acres.
The basis of the Oltmans’ claims is their allegation that
“as early as 2004” the Pardes “converted some of the land
that had previously been pasture and waterways, into tillable
acres” and failed to pay rent on those additional acres. The
Oltmans confronted Doug in October 2021 with informa-
tion that the Pardes had not paid the correct amount of rent,
because the Pardes were able to produce crops on the addi-
tional acres of pasture and grass waterways by tilling them.
The Oltmans alleged in their complaint that Doug admitted

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OLTMAN v. PARDE
Cite as 32 Neb. App. 725
to not paying the full amount of rent based on the acreage he
tilled. The Oltmans estimate that the Pardes did not pay rent
on a total of 423 acres—totaling $74,025 in back rent, but do
not show how they calculated the 423 acres.
The Oltmans claimed they sold the land to the Pardes in
April 2018 because they were not making enough money
from the rental agreement with the Pardes to pay the mainte-
nance and taxes on the property. They claim that if the Pardes
had paid the accurate rental price, then they would not have
needed to sell the land. Additionally, the Oltmans claim the
Pardes knew this, so they fraudulently concealed the fact that
they converted additional acres. The Oltmans alleged that
they could not have discovered the additional converted acre-
age with reasonable diligence, in part because they trusted
the Pardes.
The Oltmans requested that the district court vacate, set
aside, and declare null and void the contract of sale from April
2018, in which the Oltmans sold the subject land to the Pardes.
They also asked, in the alternative, that the Pardes pay unpaid
rent and other damages to be proved at trial, as well as punitive
damages, attorney fees, and costs.
On November 7, 2022, the Pardes filed a motion to dismiss.
They cited various reasons for why the suit should be dis-
missed, including that the Oltmans failed to state a claim upon
which relief could be granted, the statute of limitations barred
the Oltmans’ claims, and the Oltmans’ claims were not stated
with particularity.
The district court granted the Pardes’ motion to dismiss
and dismissed the Oltmans’ complaint with prejudice. The
district court held that the Oltmans’ “allegations deal with a
lease contract for real property,” so “any theory of ‘conver-
sion’ is inapplicable and should be dismissed with prejudice.”
Alternatively, it held that even if the conversion claim applied
to the Oltmans’ allegations, the claim would be barred by the
statute of limitations. It explained that the face of the com-
plaint shows that more than 4 years elapsed between the last

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OLTMAN v. PARDE
Cite as 32 Neb. App. 725
alleged “conversion,” which had to have occurred prior to the
sale of the land in April 2018. Because the Oltmans filed suit
in October 2022, the statute of limitations barred the claim.
The district court found that the Oltmans had failed to allege
facts to support a finding that there was a valid contract to
establish a breach of contract claim. The Oltmans had alleged
only the amount of rent due on a per acre basis; they did not
allege whether the 250-acre lease was to be completed within
1 year and renewed yearly or whether it was a long-term lease.
There were no allegations in the Oltmans’ complaint to indi-
cate whether the lease was written or oral. The district court
concluded that the Oltmans merely raised conclusory allega-
tions without supporting lease contract terms.
The district court also concluded that any breach of con-
tract claim was barred by the statute of limitations. Because
the pleadings did not allege any facts to indicate the contract
was written, the district court applied the statute of limitations
for oral contracts, which is 4 years. The latest the breach of
contract could have occurred was prior to the sale of the land
in April 2018. The Oltmans filed suit in October 2022, which
is outside the statute of limitations period.
Lastly, the district court concluded that the Oltmans failed
to allege sufficiently particular facts to establish a claim for
fraudulent concealment. It explained that the Oltmans failed
to allege any facts that the Pardes owed a duty to notify them
of changes to the land. The Oltmans also alleged that the
Pardes owed them $74,025, which they calculated to be 423
acres times $175. But the Oltmans failed to explain where
the 423 acres came from. The Oltmans did not allege any
facts to show how the Pardes concealed their actions from the
Oltmans, especially because the Pardes submitted $36,000 in
improvement invoices to the Oltmans. The Oltmans appeal.
ASSIGNMENTS OF ERROR
The Oltmans assign six errors. They assign the district
court erred in (1) finding the Oltmans failed to state a claim

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for conversion within the statute of limitations, (2) finding
the Oltmans had failed to state a claim for breach of contract
within the statute of limitations, (3) finding that the Oltmans
had failed to state a claim for fraudulent concealment within
the statute of limitations, (4) failing to find the Pardes were
equitably estopped from asserting the statute of limitations
applied to the breach of oral contract claim, (5) failing to
apply the discovery rule to the statute of limitations based on
fraudulent concealment, and (6) failing to permit the Oltmans
to amend their complaint.
STANDARD OF REVIEW
[1] An appellate court reviews a district court’s order grant-
ing 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. Chaney v. Evnen, 307 Neb.
512, 949 N.W.2d 761 (2020).
ANALYSIS
The Oltmans assign that the district court erred in dismiss-
ing their complaint with prejudice. The district court held
that the Oltmans had not alleged a prima facie case for either
breach of contract or conversion and that both claims were
barred by the statute of limitations. Although the Oltmans
identified fraudulent concealment as a cause of action in their
complaint, we address that doctrine later in our analysis of
the statute of limitations. We find it unnecessary to address
the sufficiency of the Oltmans’ claims for breach of contract
and conversion, because we agree with the district court that
the statute of limitations bars these claims. Accordingly, the
district court did not err in dismissing the Oltmans’ complaint
with prejudice.
Motion to Dismiss.
[2,3] As a preliminary matter, to prevail against a motion
to dismiss for failure to state a claim, a plaintiff must allege
sufficient facts to state a claim to relief that is plausible on its

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face. Chaney v. Evnen, supra. In cases in which the plaintiff
does not or cannot allege specific facts showing a necessary
element, the factual allegations, taken as true, are nonetheless
plausible if they suggest the existence of the element and raise
a reasonable expectation that discovery will reveal evidence
of the element or claim. Id. When reviewing an order dismiss-
ing a complaint, an appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the
plaintiff’s conclusion. Id. For purposes of a motion to dismiss,
a court is not obliged to accept as true a legal conclusion
couched as a factual allegation, and threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id.
[4-7] As a general rule, when a court grants a motion
to dismiss, a party should be given leave to amend absent
undue delay, bad faith, unfair prejudice, or futility. Trausch v.
Hagemeier, 313 Neb. 538, 985 N.W.2d 402 (2023). Leave to
amend should not be granted when it is clear that the defect
cannot be cured by amendment. Id. Because a motion to dis-
miss under Neb. Ct. R. Pldg. § 6-1112(b)(6) tests the legal suf-
ficiency of the complaint, not the claim’s substantive merits,
a court may typically look only at the face of the complaint
to decide a motion to dismiss. Trausch v. Hagemeier, supra. A
motion to dismiss should be granted only in the unusual case
in which a plaintiff includes allegations that show on the face
of the complaint that there is some insuperable bar to relief.
Id. Because the district court dismissed with prejudice and
held the statute of limitations bars the Oltmans’ claims, the
question before us is whether the statute of limitations poses
an insuperable bar to relief. We hold that it does.
Statute of Limitations.
[8-10] The Oltmans seek recovery under both breach of
contract and conversion. Each is subject to its own 4-year
statute of limitations. Limitations are created by statute and

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derive their authority therefrom. Susman v. Kearney Towing &
Repair Ctr., 310 Neb. 910, 970 N.W.2d 82 (2022). While the
Oltmans did not plead whether their contract was written or
oral, on appeal, both parties agree it was an oral contract. For
a breach of an oral contract claim, the statute of limitations is
4 years. See Neb. Rev. Stat. § 25-206 (Reissue 2016). For a
conversion claim, the relevant statute provides:
The following actions can be brought within four
years: (1) An action for trespass upon real property; (2)
an action for taking, detaining or injuring personal prop-
erty, including actions for the specific recovery of per-
sonal property; (3) an action for an injury to the rights of
the plaintiff, not arising on contract, and not hereinafter
enumerated; and (4) an action for relief on the ground
of fraud, but the cause of action in such case shall not
be deemed to have accrued until the discovery of the
fraud . . . .
Neb. Rev. Stat. § 25-207 (Reissue 2016). The statute of limita-
tions is enacted upon the presumption that one having a well-
founded claim will not delay enforcing it beyond a reasonable
time if that person has the right to proceed. Susman v. Kearney
Towing & Repair Ctr., supra. The mischief which statutes of
limitations are intended to remedy is the general inconve-
nience resulting from delay in the assertion of a legal right
which is practicable to assert. Id.
Here, the heart of the Oltmans’ claims is that the Pardes
tilled additional acres of brome pasture and various grass
waterways, which in turn allowed them to grow crops on the
additional acres for which they did not pay rent. The Oltmans
argue this breached their oral contract because rent was to
be paid on a per acre basis, at $175 per acre. The Oltmans
argue that the district court misconstrued their claim, in that
the district court construed it as a conversion of real property;
however, they clarify on appeal that the Pardes converted the
money that was due the Oltmans by failing to pay them for the
additional land the Pardes tilled.

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Assuming without deciding that rental payments can be
converted for purposes of a conversion claim, the Oltmans
allege the Pardes tilled the additional acres “as early as 2004,”
which means the initial statute of limitations would begin to
run when the Pardes failed to pay the 2004 rent. Even if a
new statute of limitations period begins each year in which
the additional rent was due but not paid, the latest date of
payment would be prior to April 2018, the date on which the
Oltmans sold the land to the Pardes. Because the Oltmans did
not file their complaint until October 2022, the 4-year statute
of limitations bars their suit. However, the Oltmans argue
that their claims are not untimely due to two exceptions that
delayed or tolled the date on which the statute of limitations
began to run: the discovery rule and the doctrine of fraudu-
lent concealment.
Discovery Rule.
The discovery rule tolls a statute of limitations when the
plaintiff did not discover the injury and could not have dis-
covered the injury within the applicable statute of limitations.
Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
The reasoning behind the discovery rule is that, in some cases,
the injury is not obvious, and it would be unfair to allow the
statute of limitations on a claim to run out before an injured
party had a chance to seek relief. Id.
Determining that the discovery rule applies in a products
liability case, the Nebraska Supreme Court observed that a
cause of action accrues and the statute of limitations begins
to run when the aggrieved party has the right to institute and
maintain a suit. See Condon v. A. H. Robins Co., 217 Neb.
60, 349 N.W.2d 622 (1984). It recognized that in tort cases,
damages are a necessary element of the cause of action. See
id. It concluded that because a plaintiff must assert and prove
damages, it would be “a Hobson’s choice” to suggest, on the
one hand, that an action cannot be brought without a showing
of injury and to suggest, on the other hand, that the time for

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bringing that action could begin and end before that person
could be aware of the injury or able to establish its existence.
Id. at 64, 349 N.W.2d at 625.
Conversely, in Mandolfo v. Mandolfo, supra, the Supreme
Court held that a discovery rule did not apply to an action
for conversion of a negotiable instrument brought under the
Uniform Commercial Code. It noted that the cause of action
accrues and the limitations period begins running when the
instrument is converted, regardless of when the plaintiff actu-
ally learns of the conversion. Mandolfo v. Mandolfo, supra.
It reasoned that not applying a discovery rule advances the
Uniform Commercial Code’s purpose of promoting swift reso-
lution of commercial disputes. Mandolfo v. Mandolfo, supra.
And it further observed that watchful victims of conver-
sion should be able to quickly realize when they have been
wronged. Id.
Likewise, it appears that the discovery rule does not apply
to a breach of contract claim. See Cavanaugh v. City of
Omaha, 254 Neb. 897, 580 N.W.2d 541 (1998). In Cavanaugh,
the court stated that a cause of action in contract accrues at
the time of the breach or failure to do the thing that was the
subject of the agreement, irrespective of any knowledge on
the part of the plaintiff or of any actual injury occasioned
to them. This is so even though the nature and extent of
damages may not be known. Id. See, also, Grand Island
School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d
603 (1979), overruled on other grounds, Susman v. Kearney
Towing & Repair Ctr., 310 Neb. 910, 970 N.W.2d 82 (2022)
(recognizing absence of case law applying discovery rule,
without statutory directive, to statute of limitations in causes
of action not involving physical injury).
Although the Supreme Court did not address the discovery
rule in Cavanaugh v. City of Omaha, supra, the propositions
of law it articulated, as set forth above, lead us to conclude
the discovery rule is inapplicable to a breach of contract
claim. In Morgan v. State Farm Mutual Auto. Ins. Co., 2021

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OK 27, 488 P.3d 743 (2021), the Oklahoma Supreme Court
explained why the discovery rule does not apply to breach of
contract claims, and we find its rationale instructive.
In Morgan v. State Farm Mutual Auto. Ins. Co., supra, the
Oklahoma court was presented with certified questions from
the 10th Circuit Court of Appeals that required it to determine
whether “the tort-based discovery rule appl[ies] to a breach of
contract action and toll[s] the running of the statute of limita-
tions until the plaintiff knows, or in the exercise of reasonable
diligence, should have known of the breach.” Id. at ¶26, 488
P.3d at 750. It explained the discovery rule did not apply for
several reasons. First, while the Oklahoma Legislature had
enacted laws making the discovery rule applicable in certain
actions, it had not done so in breach of contract actions. See
Morgan v. State Farm Mutual Auto. Ins. Co., supra. Second,
although some negligence or malpractice actions involve inher-
ently undiscoverable types of injuries, most contract actions
presume that the parties to the contract know the terms of
their agreement and a breach is generally obvious and detect-
able with reasonable diligence. Id. Third, unlike a tort claim,
a breach of contract is a legal wrong independent of the exis-
tence of actual damages. A plaintiff acquires the legal right to
sue when there has been formation of a contract and a breach
thereof. At that point, the cause is actionable and the plaintiff
is entitled to nominal damages. In a tort action, a plaintiff
must allege and prove damages to be successful, thus requiring
that the person have knowledge of the injury, or the ability to
discover the injury with reasonable diligence. Id.
Here, we reach the same conclusion as the Oklahoma
Supreme Court and determine that the discovery rule does
not apply to a breach of contract claim. Our conclusion is
supported by the lack of statutory support for imputing the
discovery rule into breach of contract claims. In Nebraska,
the Legislature has enacted statutes that delay accrual of the
statute of limitations until discovery or include a tolling pro-
vision for certain causes of action, yet the statute governing

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the limitation of actions for a breach of an oral contract
contains no such language. Compare § 25-207(4) (accrual
upon discovery for actions based on fraud), Neb. Rev. Stat.
§ 25-222 (Reissue 2016) (tolling provision for professional
negligence suits), and Neb. Rev. Stat. § 25-223 (Cum. Supp.
2022) (tolling provision for actions on breach of warranty on
improvements to real property), with § 25-206 (no discovery
or tolling provision included for breach of oral contract).
The Legislature has not created a discovery exception for an
action on an oral contract as it has for other actions.
Case law further supports our conclusion. As in Oklahoma,
a breach of contract claim accrues at the time of the breach,
regardless of the plaintiff’s knowledge of the injury, or the
nature and extent of the damages. See Cavanaugh v. City of
Omaha, 254 Neb. 897, 580 N.W.2d 541 (1998). Furthermore,
when a contract is breached, the nonbreaching party can sue
the breaching party for nominal damages. See O’Connor v.
Aetna Life Ins. Co., 67 Neb. 122, 93 N.W. 137 (1903).
Whoever breaks a contract makes himself liable for at
least nominal damages by his failure to perform, and the
right to recover nominal damages gives the other party
a right of action, and from the time the right of action
accrues the statute [of limitations] is put in operation.
Even where the breach is not known to the complaining
party, the statute is not tolled unless the defendant fraudu-
lently conceals the facts.
Id. at 126-27, 93 N.W. at 139.
The discovery rule applies in tort actions when the plain-
tiffs could not have with reasonable diligence discovered their
injury, a necessary element of their claim, yet breach of con-
tract causes of action are not contingent upon injury; thus,
we determine that the discovery rule does not apply to the
Oltmans’ breach of contract cause of action.
The Oltmans also argue that their conversion claim is
not barred by the statute of limitations because the newly
tilled acres were not within the Oltmans’ “reasonably diligent

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attention, observation, and judgment.” The Oltmans’ argument
on appeal is that they could not have reasonably discovered the
additional tilled acres until they confronted Doug with their
suspicions and he acknowledged their accusation. However, we
do not need to address this factual issue, because the discovery
rule does not apply to conversion claims.
In Omaha Paper Stock Co., Inc. v. Martin K. Eby Constr.
Co., Inc., 193 Neb. 848, 230 N.W.2d 87 (1975), the plaintiff’s
warehouse was destroyed by fire. It was later discovered
that a break in an underground water line prevented water
from flowing into the sprinkler system. The warehouse owner
sued the company that laid the sewer, which had settled and
broken the water line. The court dismissed the action based
on the statute of limitations. The warehouse owner argued
that the statute of limitations contained in an earlier version
of § 25-207(3) did not begin to run until it discovered the
cause of its injury. The Nebraska Supreme Court rejected this
argument, explaining that only subsection (4) of § 25-207
contained a discovery rule and that was limited to a cause of
action based on fraud. Omaha Paper Stock Co., Inc. v. Martin
K. Eby Constr. Co., Inc., supra. It explained:
It is the statute that makes the discovery rule applica-
ble in fraud cases. It is true, this court has made it appli-
cable in cases involving medical malpractice. However,
this was done because of strong public policy consider-
ations which set those cases apart from other torts. This
is sufficiently noted in Spath v. Morrow (1962), 174
Neb. 38, 115 N.W.2d 581 [superseded by statute]. Those
same public policy considerations are not present here.
To apply the discovery rule to a situation such as this
would effectively defeat the purpose which is responsible
for limitation of actions. An action for an injury to the
rights of the plaintiff accrues under section 25-207, R. R.
S. 1943, when the damage occurs and not when plaintiff
discovers the cause of the damage.

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Omaha Paper Stock Co., Inc. v. Martin K. Eby Constr. Co.,
Inc., 193 Neb. at 851, 230 N.W.2d at 90.
Here, we conclude that the discovery rule does not apply
to the Oltmans’ conversion claim. Section 25-207(2) pro-
vides a 4-year statute of limitations for “an action for taking,
detaining or injuring personal property, including actions
for the specific recovery of personal property.” It is only
§ 25-207(4), actions for fraud, that identifies discovery as the
date for accrual of a cause of action. Because the Oltmans’
conversion claim is not based on fraud, their cause of action
accrued on the date of conversion.
[11] Conversion is “‘any distinct act of dominion wrong-
fully exerted over another’s personal property in denial of or
inconsistent with the rights therein.’” Brook Valley Ltd. Part. v.
Mutual of Omaha Bank, 285 Neb. 157, 164, 825 N.W.2d 779,
786 (2013) (emphasis omitted) (quoting Polley v. Shoemaker,
201 Neb. 91, 266 N.W.2d 222 (1978)). The Oltmans did not
allege fraud in their cause of action for conversion; instead,
they allege the conversion occurred when the Pardes failed to
pay rent for the additional acres tilled. Since the Oltmans’ con-
version claim does not allege fraud, it suffers the same flaw
as the tort claim in Omaha Paper Stock Co., Inc. v. Martin
K. Eby Constr. Co., Inc., supra, and the discovery rule does
not apply.
Fraudulent Concealment.
As stated previously, the Oltmans included a cause of
action for fraudulent concealment in their complaint. They
argue that the district court erred in finding that they failed
to state a claim for fraudulent concealment. They explain that
the Pardes’ failure to disclose the additional crop production
to the USDA evinces their intent to deceive. And the Oltmans
accuse Doug of burning his crop maps that would show how
much of the 250-acre plot he farmed. Furthermore, they allege
the Pardes’ “concealment was intended obviously to prevent
the [Oltmans] from demanding additional rent.” Brief for
appellant at 17.

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As a point of clarification, the Oltmans identified fraudulent
concealment as a cause of action in their complaint and, on
appeal, argue that the statute of limitations should not apply
to their claims because both the discovery rule and fraudulent
concealment apply. The doctrine of fraudulent concealment
is distinct from the discovery rule, albeit both exceptions
overlap to a great extent. See John P. Lenich, Nebraska Civil
Procedure § 5:28 (2024). Both fraudulent concealment and the
discovery rule serve as exceptions to the statute of limitations.
See id., §§ 5:27 and 5:28. Although both exceptions apply in
Nebraska, each exception applies to different causes of action
and different facts. This is in part due to the elements neces-
sary to prove each exception. Compare Teater v. State, 252
Neb. 20, 559 N.W.2d 758 (1997) (discovery rule tolls statute
of limitations until party discovers or should have discovered
injury), with Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d
777 (2005) (fraudulent concealment requires concealment of
material facts by defendant).
Our research has not disclosed a Nebraska case that explains
the interplay of fraudulent concealment and the discovery rule,
despite the overlap between the two exceptions. We find case
law from other jurisdictions persuasive in describing their
relationship. Unlike the discovery rule, which tolls the run-
ning of the statute of limitations until a plaintiff discovers, or
reasonably could have discovered, their injury, the doctrine
of fraudulent concealment suspends the statute of limitations
because the defendant concealed facts necessary for the plain-
tiff to discover a claim existed. See Booker v. Real Homes,
Inc., 103 S.W.3d 487 (Tex. App. 2003). Essentially the differ-
ence is that the discovery rule is contingent on the plaintiff’s
lack of knowledge, while fraudulent concealment is contingent
on the defendant’s conduct. See Gustine Uniontown v. Anthony
Crane Rental, 892 A.2d 830 (Pa. Super. 2006).
[12] In order to successfully assert the doctrine of fraudu-
lent concealment and thus estop the defendant from claiming
a statute of limitations defense, the plaintiff must show that

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the defendant has, either by deception or by a violation of a
duty, concealed from the plaintiff material facts which pre-
vent the plaintiff from discovering the misconduct. Chafin v.
Wisconsin Province Society of Jesus, 301 Neb. 94, 917 N.W.2d
821 (2018). 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 limita-
tions expired. Id.
[13] 	The 	Nebraska 	Supreme 	Court 	held 	in 	Chafin 	v.
Wisconsin Province Society of Jesus, supra, that the allega-
tions of fraudulent concealment for tolling purposes must be
pleaded with particularity. 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 the
injury. Id. The complaint should tell us the who, what, when,
where, and how. See id.
Here, the Oltmans made five statements in their complaint
to support their fraudulent concealment claim. These were:
• The Pardes had a duty to disclose that they converted the
property to tillable acres and concealed the fact that they did.
• Tilling the additional acres was not within the Oltmans’ rea-
sonably diligent attention, observation, and judgment.
• The Pardes concealed tilling the acres with the intention the
Oltmans would act in response.
• The Pardes did not report the additional acres of production
to the USDA.
• The Pardes burned the maps that would identify the amount
of ground put into production.
The Oltmans’ first three allegations are legal conclusions
couched as factual allegations. The statements do not allege
the source of any duty to disclose, how the Oltmans per-
formed their reasonable diligence to discover the injury, or
how the Pardes concealed from them the tilling of additional
acres. The only facts alleged addressed the maps and the

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failure to report the additional acres to the USDA, but neither
fact constitutes concealment from the Oltmans. Because the
Oltmans failed to particularly allege facts supporting fraudu-
lent concealment, the statute of limitations did not toll.
In Chafin v. Wisconsin Province Society of Jesus, supra, the
Nebraska Supreme Court determined that the pleading require-
ments of Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008) apply to
claims for fraudulent concealment and that failure to comply
with those requirements subjects a complaint to dismissal with
prejudice. Accordingly, we conclude that the district court did
not err in dismissing the Oltmans’ claim for fraudulent con-
cealment with prejudice. As stated above, the statute of limita-
tions presented an insuperable bar to recovery on the Oltmans’
breach of contract and conversion claims. Therefore, dismissal
of the complaint with prejudice was proper.
CONCLUSION
The Oltmans’ causes of action are barred by the statute of
limitations. The discovery rule does not apply to either their
breach of contract claim or their conversion claim, and they
failed to particularly allege fraudulent concealment. We there-
fore affirm the order of the district court granting the motion
to dismiss their complaint with prejudice.
Affirmed.