McKell v. McKell

               THE UTAH COURT OF APPEALS

      SUMMER TATIANA MCKELL AND MICHELLE TISCHNER,
                      Appellants,
                           v.
                   ROBERT C. MCKELL,
                       Appellee.

                             Opinion
                        No. 20220315-CA
                        Filed May 9, 2024

            Fourth District Court, Provo Department
                The Honorable M. James Brady
                         No. 210400528

            Christopher M. Ault and Chad A. Tengler,
                    Attorneys for Appellants
       Barry N. Johnson, James K. Tracy, J. Jacob Gorringe,
         and Bradley C. Johnson, Attorneys for Appellee

     JUDGE JOHN D. LUTHY authored this Opinion, in which
   JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1    Summer Tatiana McKell, through her legal guardian
Michelle Tischner, brought suit against Robert C. McKell, her
adoptive father and former legal guardian, for claims related to
sexual abuse he committed against her. Robert 1 moved to
dismiss Summer’s claims on the ground that they were
untimely under the relevant statute of limitations. Summer
contended that the limitations period was statutorily tolled
while she was incompetent, until the time of Tischner’s


1. “Because the parties share the same last name, we use their
given names with no disrespect intended by the apparent
informality.” Rosser v. Rosser, 

, ¶ 1 n.1, 

.
                         McKell v. McKell


appointment as her guardian. Before the district court issued a
decision on the motion, our supreme court issued an opinion
clarifying that the relevant statute tolls limitations periods
throughout a person’s incompetency, regardless of whether the
person has an appointed guardian. See Zilleruelo v. Commodity
Transporters, Inc., 

, 

. However, neither
party brought this decision to the district court’s attention, and
the court dismissed Summer’s claims on the grounds that the
limitations period was not tolled while she had guardians
appointed and that the combined time of the guardianships
exceeded the limitations period.

¶2      Summer appeals, arguing that the district court improperly
dismissed her claims as time-barred. She asserts that, as Zilleruelo
clarifies, the limitations period was statutorily tolled even when
she had guardians. Robert contends that Summer did not
preserve this argument and that she invited any error in the
court’s ruling on timeliness. Alternatively, he asks us to affirm on
the ground that Summer did not sufficiently plead incompetence.
We reject Robert’s preservation argument, we conclude that
Summer did not invite the error leading to the dismissal of her
claims, and we determine that Summer sufficiently pled
incompetence. Accordingly, we conclude that the district court
erred in dismissing Summer’s claims, and we reverse.


                        BACKGROUND 2

                   Summer’s Birth and Adoption

¶3    Summer was born in Russia in 1994 and was later brought
to Utah by her adoptive mother (Mother). Summer purportedly


2. “In reviewing a district court’s grant of summary judgment, we
view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party and recite the
                                                     (continued…)


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                        McKell v. McKell


suffered traumatic injuries at birth that caused “a variety of
mental, emotional, and behavioral developmental disabilities,
including cognitive impairment.” Mother married Robert in 2007,
and Robert subsequently adopted Summer.

      Summer’s Guardianships and Robert’s Criminal Charges

¶4    In January 2013, after Summer had turned eighteen,
Mother and Robert petitioned to be jointly appointed as
Summer’s limited guardians and conservators. They were
appointed as such on February 15, 2013.

¶5    Soon after this appointment, Summer reported that Robert
had sexually assaulted her on multiple occasions. Criminal
charges were filed against Robert in April 2013. Robert and
Mother resigned as Summer’s legal guardians and conservators
on January 7, 2014.

¶6     Michelle Tischner, Summer’s sister, was appointed as
Summer’s legal guardian on October 2, 2017. In November of that
year, Robert pled guilty to four counts of sexual battery for his
conduct toward Summer.

   Summer’s Complaint and Robert’s Motion for Judgment on the
                          Pleadings

¶7     On April 22, 2021, Summer, through Tischner, brought this
suit against Robert. In her complaint, Summer alleged, among
other things, that Robert had sexually assaulted her.

¶8     In his answer, Robert asserted as an affirmative defense
that Summer’s claims were “barred by the applicable statutes of
limitations.” Robert then filed a motion for judgment on the
pleadings, contending that “[t]he four-year statute of limitations



facts accordingly.” Ockey v. Club Jam, 

, ¶ 2 n.2,

 (cleaned up).


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                         McKell v. McKell


governing each of [Summer’s] claims [had] expired several years
[previously].”

¶9      Summer opposed this motion, arguing that it “ignore[d]
the tolling provisions of Utah law that apply to disabled and
incapacitated victims like Summer” and that “[b]ecause the
statutes of limitation were tolled until Ms. Tischner was
appointed guardian, the action was timely filed.” Summer
pointed to Utah Code section 78B-2-108 (the Tolling Statute),
which provides, “During the time that an individual is underage
or mentally incompetent, the statute of limitations for a cause of
action other than for the recovery of real property may not run.”
Utah Code § 78B-2-108(2). Summer stated that “[t]he statute of
limitations on [her] claims was tolled until the appointment of her
guardian” and that “her claims were timely filed within the
applicable statutes of limitation” because she “brought this action
within four years of” the appointment of Tischner and “the curing
of her legal incapacity.”

¶10 Robert replied that Summer’s complaint did not
adequately plead incompetence and that even if it did, Summer’s
incompetence was cured more than four years prior when Mother
became Summer’s guardian and conservator.

   Summer’s Amended Complaint and Robert’s Motion to Dismiss

¶11 Summer then sought and obtained leave to amend her
complaint. Her amended complaint stated that “Robert signed
and filed a ‘Verified Consent to Conservatorship’ wherein he
affirmed that . . . ‘Summer suffers from a disability that has
impeded her ability to progress mentally and intellectually, and
on information and belief, has only attained the intellectual age of
approximately 12 years, though she is 18 years old.’” It asserted
that “Robert and [Mother’s] 2013 limited guardianship is void ab
initio due to fraud upon the court in prosecuting the petition, bad
faith, violating public policy against using court-appointed
guardianship to accomplish unlawful ends, failing to discharge



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                         McKell v. McKell


obligations or responsibilities, etc.” Additionally, it declared that
“Summer remained under a disability and was therefore legally
incompetent until the appointment of her current limited
guardian.”

¶12 Robert filed a motion to dismiss Summer’s amended
complaint. He again argued that Summer’s claims were time-barred because “she had a legal guardian in place for well over
four years before asserting her sexual assault claims.”

¶13 Summer opposed Robert’s motion. She reiterated her
position that she was incompetent until Tischner’s appointment
as guardian, and she stated that “at that point the statute of
limitations began to run.”

¶14 Robert replied by explaining that his calculations as to
timeliness included Mother’s time as Summer’s guardian such
that “between [Mother’s] and Tischner’s guardianships
combined, Summer waited too long to assert her sex abuse
claims.”

             Zilleruelo v. Commodity Transporters, Inc.

¶15 In January 2022, our supreme court issued an opinion in
Zilleruelo v. Commodity Transporters, Inc., 

, 

,
interpreting the Tolling Statute. Therein, the court provided the
following analysis:

              The Tolling Statute has two relevant
       subsections. The first prohibits a mentally
       incompetent individual from initiating a claim
       without a legal guardian. With this language—
       “without a legal guardian”—the Legislature has
       decreed that a mentally incompetent person cannot
       bring suit unless that person has a legal guardian.




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                         McKell v. McKell


             The second subsection speaks to a different
      question. It guarantees that a statute of limitations
      will not run against a mentally incompetent
      individual during the time that the individual is
      mentally incompetent. However, the Legislature
      omitted the language “without a legal guardian”
      from the second subsection. . . . We presume
      omissions to be purposeful.

             Taking note of this omission and deeming it
      purposeful, the language of the Tolling Statute is
      plain. A statute of limitations is tolled during a
      person’s mental incompetency, whether or not that
      person has a legal guardian.

             [The appellee] argues for a reading of the
      Tolling Statute where the second subsection would
      parallel the first. In other words, [the appellee]
      wants us to read the Tolling Statute to provide:
      “During the time that an individual is underage, or
      mentally incompetent and without a legal guardian,
      the statute of limitations for a cause of action other
      than for the recovery of real property may not run.”
      Without a doubt, the Legislature could have written
      the Tolling Statute in this way. But also without a
      doubt, it did not. And it is not our job to second
      guess the Legislature and insert substantive terms
      into the statute’s text.

             Simply stated, the Tolling Statute provides
      that the statute of limitations is tolled while a person
      is mentally incompetent, whether or not that person
      is represented by a legal guardian.

 ¶¶ 20–24 (cleaned up). Neither party brought Zilleruelo to the
district court’s attention.




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                        McKell v. McKell


   Oral Argument and the Ruling on Robert’s Motion to Dismiss

¶16 In February 2022, the district court heard oral argument on
Robert’s motion to dismiss. During this hearing, Summer’s
position remained consistent with her earlier statements
regarding the effect of her incompetency to toll the statute of
limitations until the time of Tischner’s guardianship. Summer’s
counsel stated that “a person does gain competency when there is
a guardian that is appointed” and that Summer’s “incapacity was
cured by the appointment of Michelle Tischner as her guardian.”
Again, neither party raised Zilleruelo at the hearing or in
subsequent briefing to the district court.

¶17 In March 2022, the district court granted Robert’s motion
and dismissed Summer’s claims. The court noted that Robert had
argued “that the standard for legal incompetency is different than
the standard for a disability that would apply to the appointment
of a guardian,” but the court did not “rule on the parties’
argument regarding the differences between competency and
disability” because it reasoned that “even assuming that [Summer
was] correct that her incapacitation was sufficient to deem her
mentally incompetent and that it triggered the tolling of the
statute of limitations, the appointment of guardians for her
removed the tolling while she had guardians appointed.” The
court calculated that between Mother and Tischner, Summer “had
guardians appointed for a total of four years and 133 days after
the alleged sexual assault and before she filed the present
lawsuit.” Accordingly, the court concluded that Summer’s
“causes of action [were] barred by the statute of limitations” and
dismissed them. Summer now appeals.


             ISSUE AND STANDARD OF REVIEW

¶18 Summer argues that the district court erroneously
dismissed her claims as time-barred because the Tolling Statute
renders them timely. “Because a trial court’s grant or denial of a



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                         McKell v. McKell


motion to dismiss is a question of law, the standard of review is
correctness.” State v. Arguelles, 

, 

(cleaned up).


                            ANALYSIS

¶19 Summer asserts that the district court “err[ed] as a matter
of law in holding that statutes of limitation for an incompetent
person’s claims . . . begin to run upon the judicial appointment of
a legal guardian.” She argues that our supreme court’s opinion in
Zilleruelo v. Commodity Transporters, Inc., 

, 

,
demands the conclusion that the statute of limitations has been
tolled throughout the duration of Summer’s alleged ongoing
incompetence—regardless of guardianship status—such that her
claims were timely. We agree that Zilleruelo does demand that
conclusion. The holding in Zilleruelo clearly establishes that if
Summer was incompetent, her claims were not time-barred
because the relevant statute of limitations was tolled under the
Tolling Statute for the duration of Summer’s incompetency,
regardless of guardianship status. See id. ¶ 24.

¶20 Robert responds not by asserting that the court’s legal
conclusion on tolling during incompetency or its application of
the Tolling Statute were correct but, rather, by contending that
Summer’s argument on appeal is unavailing because she did not
preserve it or argue an exception to preservation and because she
invited any error on this point. Robert additionally asserts that we
should affirm on the alternative ground that Summer did not
sufficiently plead incompetence. We address these contentions in
turn.

                          I. Preservation

¶21 Robert contends that we should not consider Summer’s
appeal because Summer failed to preserve the issue of whether
“statutes of limitation for an incompetent person’s claims . . .



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                         McKell v. McKell


begin to run upon the judicial appointment of a legal guardian.”
(Omission in original.) In support of this argument, Robert points
to caselaw establishing that Utah appellate courts “view issues
narrowly” and “recognize that an appellant raises a new issue
when the appellant raises a legal theory entirely distinct from the
legal theory the appellant raised to the district court.” Ahhmigo,
LLC v. Synergy Co. of Utah, 

, 

 (cleaned
up).

¶22 We first note that the issue of the impact of the Tolling
Statute was before the district court. Robert raised the issue of
whether Summer’s claims were time-barred in his answer and
motion for judgment on the pleadings, and Summer
responded by quoting the Tolling Statute and arguing that
it rendered her claims timely. Whether we define the
issue broadly as the timeliness of Summer’s claims or
more narrowly as the effect of the Tolling Statute on the
timeliness of Summer’s claims given her guardianships, these
issues were preserved. 3 Either issue was “presented to the
trial court in such a way that the trial court ha[d] an opportunity
to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 

, 

 (cleaned up). That Summer agreed to an
interpretation of the Tolling Statute that was legally incorrect
does not change the reality that the court was presented with
and ruled on these issues. See Cottam v. IHC Health Services, Inc.,

, ¶ 18 n.2, 

 (“The court was not


3. Counsel for Robert stated during oral argument before this
court, “The issue in front of the district court was this: Do we, for
purposes of Summer’s statute of limitations, apply all of the time
that she had a legal guardian in place? So do we count both the
time that Michelle Tischner was the legal guardian and do we
count the time that [Mother] was her legal guardian?” Such a
framing is consistent with our conclusion that the district court
had an opportunity to rule on the issue of whether Summer’s
claims were timely under the Tolling Statute in light of her
guardianships.


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                          McKell v. McKell


required to hold the [defendants] to their apparent legal
concession; it was required to reach its own conclusion on the
[legal question presented].”). And once an issue has been raised
in the trial court, “new arguments” as to that issue, including
“citing new authority or cases supporting an issue that was
properly preserved,” “do not require an exception to
preservation.” State v. Johnson, 

, ¶ 14 n.2, 

.
What Summer has done on appeal is to cite a new case—namely,
Zilleruelo—in support of an issue that was properly preserved—
namely, the timeliness of her claims in light of the Tolling Statute
and her guardianships.

¶23 We recognize that, as Robert asserts, Summer is relying on
appeal on a Tolling Statute theory—that the Tolling Statute tolls
the running of the statute of limitations during all of her
incompetency, regardless of whether she has a guardian—that is
distinguishable from the Tolling Statute theory she relied on
below—that the Tolling Statute tolls the running of the statute of
limitations for periods during which she was incompetent and
without a guardian and that Mother should not be deemed to
have been her guardian. However, based on the same
considerations that guided our supreme court’s decision in
Patterson v. Patterson, 

, 

, we decline to
characterize these as entirely distinct legal theories for
preservation purposes.

¶24 In Patterson, the defendant had asserted below that an
existing Utah Supreme Court opinion that arguably controlled the
key issue in the case should be either distinguished or overruled.
See id. ¶ 4. The defendant had failed to bring to the district court’s
attention the fact that legislation subsequent to the relevant
supreme court opinion had overruled that opinion already. See id.
¶¶ 18, 20. The district court determined that the supreme court
opinion at issue was controlling, and in reliance on that opinion,
it granted partial summary judgment against the defendant. See
id. ¶ 5.




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                          McKell v. McKell


¶25 On appeal, the defendant asked the supreme court to
overrule its prior opinion or, alternatively, to apply the
subsequently enacted statute, which the defendant newly argued
had itself overruled the prior opinion already. See id. ¶ 8. The
plaintiff responded by asserting that the prior opinion
“remain[ed] good law and should not be overruled.” Id. He
further contended that the subsequent statute had not overruled
the prior opinion and that, in any event, the court should not
consider the statutory argument because the defendant raised it
for the first time on appeal. See id.

¶26 The supreme court began its analysis by considering
whether the defendant was barred from arguing the applicability
of the subsequent statute where he had not cited it in the district
court. Id. ¶ 10. After explaining the “two primary considerations
underlying the [preservation] rule”—“judicial economy and
fairness”—the court concluded that the preservation rule did not
prevent the defendant from raising on appeal what it deemed to
be “controlling legislation.” Id. ¶¶ 15‒16, 18. Simply stated, where
the statute was relevant to “a properly preserved issue,” the court
was “unwilling to disregard controlling authority that [bore]
upon the ultimate resolution of [the] case solely because the
parties did not raise it below.” Id. ¶ 18.

¶27 The court acknowledged that its decision might
“undermine some of the policies underlying the preservation
requirement.” Id. ¶ 19. Specifically, it said that judicial economy
might not be served since the district court “may have ruled in
[the defendant’s] favor and [the] appeal [may] have been
avoided” if the defendant had raised the controlling authority in
the district court. Id. And it explained that fairness was not being
fully served since it was “not entirely fair to characterize the
district court’s ruling as ‘error’ because it did not have the statute
before it.” Id. But the court emphasized that there were “other
important [policy] considerations that cut against application of
the preservation rule in [that] situation.” Id. ¶ 20.




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                           McKell v. McKell


¶28 First, the court noted that consideration of the controlling
statute was “necessary to a proper decision” and that “[a]s the
state’s highest court, [it has] a responsibility to maintain a sound
and uniform body of precedent and must apply the statutes duly
enacted into law.” 

 Second, the court observed that “the issue
of whether and how” the statute applied was “one that [could] be
resolved purely as a matter of law.” 

 Third, the court then
pointed out that the defendant’s “failure to raise the argument
below appear[ed] to have been inadvertent, rather than tactical,
because [the court could] conceive of no way in which [the
defendant] would [have] derive[d] an advantage from reserving
the statutory argument for appeal rather than raising it in the
district court.” 

 Finally, the court highlighted the parties’
“ethical obligation to disclose adverse authority to the court,”
explaining, “[T]he failure to raise the controlling statute in the
district court is a failure that can be appropriately assigned to
counsel for both parties. Were we to refuse to apply the
[controlling statute] here, it could incentivize attorneys to
disregard their ethical obligation to point out controlling adverse
authority.” 

¶29 Almost all of these important policy considerations that cut
against application of the preservation rule in Patterson likewise
cut against application of the preservation rule here. As an initial
matter, where newly cited authority is relevant to a narrow,
preserved issue, we, like the Patterson court, are “unwilling to
disregard controlling authority that bears upon the ultimate
resolution of [the] case solely because the parties did not raise it
below.” Id. ¶ 18. Additionally, the impact of the Tolling Statute
here “can be resolved purely as a matter of law.” Id. ¶ 20.
Moreover, Summer’s “failure to raise the [Zilleruelo] argument
below appears to have been inadvertent, rather than tactical,
because we can conceive of no way in which [Summer] would
derive an advantage from reserving [this] argument for appeal
rather than raising it in the district court.” Id. Finally, because both
parties had “an ethical obligation to disclose adverse authority to
the court,” “the failure to raise [Zilleruelo] in the district court is a



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                         McKell v. McKell


failure that can be appropriately assigned to counsel for both
parties.” 

 And like our supreme court, we have no desire to
“incentivize attorneys to disregard their ethical obligation to point
out controlling adverse authority.” 4 

¶30 Admittedly, the distance between the argument made in
the district court in Patterson (that prior precedent should be
overruled) and the alternative argument made on appeal in
Patterson (that prior precedent had already been statutorily
overruled) was less than the distance between Summer’s
argument below (that Mother should not be deemed to have been
Summer’s guardian) and Summer’s argument on appeal (that it
does not matter whether Summer had a guardian as long as
Summer was mentally incompetent). But as close cases like this
one reveal, there is no bright line between a new argument and an
entirely distinct legal theory. Therefore, we have been counseled “to
look at the underlying policies to determine whether new
arguments are actually entirely new issues.” State v. Johnson, 2017


4. The only Patterson policy consideration not applicable here is
the responsibility of appellate courts to “maintain a sound and
uniform body of precedent,” which cannot be done if an appellate
court is required “to issue an opinion in contravention of”
controlling authority. Patterson v. Patterson, 

, 

. This was an active consideration in Patterson because the
defendant there made alternative arguments on appeal, which
required the supreme court to address the merits of the key issue
in any event. See id. ¶ 8. In contrast here, Summer’s appellate
argument is based solely on Zilleruelo v. Commodity Transporters,
Inc., 

, 

. Thus, if we were to determine that
her argument was precluded by the preservation rule, we could
simply affirm the district court’s decision without reaching the
merits of the timeliness issue and thereby avoid issuing an
opinion in contravention of controlling authority. We are not
convinced, however, that the inapplicability here of this one
policy consideration compels a different conclusion as to
preservation.


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                         McKell v. McKell


UT 76, ¶ 14 n.2, 

. That is what we have done here.
And in light of the policy considerations identified above, we
conclude that Summer’s reliance on Zilleruelo does not present an
entirely new issue but, rather, a new argument under the narrow,
preserved issue of whether her claims were timely in light of the
Tolling Statute and her guardianships. We therefore reject
Robert’s argument that our preservation doctrine prevents us
from considering the applicability of Zilleruelo.

                         II. Invited Error

¶31 Robert also argues that Summer invited any error in the
district court’s ruling related to the Tolling Statute because she
affirmatively represented to the court “the very legal principle she
now challenges on appeal.” We disagree and conclude that the
invited error doctrine is inapplicable here.

¶32 “Under the doctrine of invited error, an error is invited
when counsel encourages the trial court to make an erroneous
ruling.” State v. Popp, 

, 

 (cleaned
up), cert. denied, 

 (Utah 2021). “To invite an error, a
party must do more than simply fail to object; the party must
manifest some sort of affirmative representation to the trial court
that the court is proceeding appropriately.” 

       Application of the invited error doctrine serves
       three important purposes. First, it discourages
       parties from intentionally misleading the trial court
       so as to preserve a hidden ground for reversal on
       appeal. Second, it encourages counsel to actively
       participate in all proceedings and to raise any
       possible error at the time of its occurrence. Finally,
       it fortifies our long-established policy that the
       district court should have the first opportunity to
       address a claim of error.

State v. Moa, 

, 

 (cleaned up).



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                          McKell v. McKell


¶33 There is no denying that Summer’s counsel stated to the
court that “a person does gain competency when there is a
guardian that is appointed”; this statement conceded a legal rule
that was wrong, which the district court erroneously applied
when it determined that “the appointment of guardians for
[Summer, including Mother,] removed the tolling” of the relevant
statute of limitations. However, Summer never encouraged the
court’s ultimate decision dismissing her claims as untimely under
the Tolling Statute. Nor did she affirmatively represent that the
district court was “proceeding appropriately” by dismissing her
claims. Popp, 

. To the contrary, Summer
steadfastly maintained that her claims were timely under the
Tolling Statute by adamantly denying that Mother’s guardianship
cured her incompetency.

¶34 Moreover, Summer’s actions in the district court fulfilled
the first purpose of the invited error doctrine and at least partially
fulfilled its second purpose. Specifically, there is no indication
that Summer intentionally misled the trial court where, as we
have already observed, there was no way in which she would
have derived an advantage by waiting to raise Zilleruelo until
appeal. And her counsel was actively participating in the
proceedings and raised the possible error he perceived at the time
of its occurrence.

¶35 We acknowledge that a decision to not apply the invited
error doctrine in this circumstance may undermine the other
purposes of the doctrine, including to encourage counsel to raise
any possible error at the time of its occurrence and to thereby
fortify the “long-established policy that the district court should
have the first opportunity to address a claim of error,” Moa, 

 (cleaned up)—the identical judicial economy purposes
that undergird the preservation rule, see Patterson v. Patterson,

, 

. However, the same important
counter-considerations that led us to not apply the preservation
rule in this situation, see supra ¶ 29, also lead us to not apply the
invited error doctrine in this situation. Much like we said with



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                         McKell v. McKell


regard to preservation, “we are unwilling to disregard controlling
authority that bears upon the ultimate resolution of a case solely
because the parties did not [discover] it below,” Patterson, 

, and, thus, agreed to a misstatement of the law. Instead,
we hold that the invited error doctrine does not apply when, as
here, there is controlling authority that counsel for both sides—as
well as the trial court—wholly failed to recognize and the
appealing party did not acquiesce in the ultimate decision that is
rendered erroneous by that controlling authority. In such
circumstances, only an affirmative disavowal of the controlling
authority itself will constitute invited error.

      III. Sufficiency of Pleadings Regarding Incompetence

¶36 Finally, Robert argues that we should “affirm on the
alternate ground that the [a]mended [c]omplaint fails to allege
that Summer is mentally incompetent, which means that her
claims are barred by the statute of limitations.” Robert asserts that
the threshold for a person to be deemed “mentally incompetent”
for purposes of the Tolling Statute is a high bar that Summer failed
to sufficiently plead.

¶37 Our supreme court has explained that “tolling statutes
based on mental incompetency are enacted to relieve from the
strict time restrictions people who are unable to protect their
legal rights because of an overall inability to function in
society.” O’Neal v. Division of Family Services, 

(Utah 1991) (cleaned up). “Courts generally hold that a person
is incompetent for the purposes of a provision tolling a statute
of limitations when the disability is of such a nature to show
him or her unable to manage his or her business affairs or
estate, or to comprehend his or her legal rights or liabilities.” 

(cleaned up).

¶38 Summer’s amended complaint alleged that “Robert signed
and filed a ‘Verified Consent to Conservatorship’ wherein he
affirmed that . . . ‘Summer suffers from a disability that has



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                         McKell v. McKell


impeded her ability to progress mentally and intellectually, and
on information and belief, has only attained the intellectual age of
approximately 12 years, though she is 18 years old.’” The
amended complaint also alleged that “Summer remained under a
disability and was therefore legally incompetent until the
appointment of her current limited guardian.” Additionally, in
both her original complaint and her amended complaint, Summer
alleged that she “suffers from a variety of mental, emotional, and
behavioral developmental disabilities, including cognitive
impairment” due to her birth injuries and that “she has profound
difficulties in seeking out and processing information on her
own.” These allegations are more than sufficient to survive a
motion to dismiss on the issue of mental incompetency under the
Tolling Statute.

¶39 Of particular relevance are the allegations that, although of
an adult age, Summer had attained the intellectual age of only a
twelve-year-old and that she suffers from mental disabilities and
cognitive impairment that make it profoundly difficult for her to
seek out and process information. These allegations and
permissible inferences that can be drawn from them paint a
picture of someone who is unable to manage her own business
affairs and to comprehend or protect her legal rights because of
an overall inability to function in society. See generally Alpine
Homes, Inc. v. City of West Jordan, 

, ¶ 7 n.2, 

(“In determining whether a lawsuit survives a motion to dismiss,
we assume that the factual allegations in the complaint are true
and we draw all reasonable inferences in the light most favorable
to the plaintiff.” (cleaned up)). Indeed, where the Tolling Statute
operates to relieve from the strict time restrictions of applicable
statutes of limitation a person who is actually twelve years old,
we find it difficult to conclude that the Tolling Statute would not
similarly relieve an adult with the mental capacity of a twelve-year-old. Accordingly, we do not affirm on this alternative
ground.




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                         McKell v. McKell


                         CONCLUSION

¶40 Zilleruelo clarifies that the Tolling Statute applies during
the duration of a person’s incompetency, regardless of
guardianship status. See Zilleruelo v. Commodity Transporters, Inc.,

, 

. Summer’s claims were therefore
timely filed. Because we decline to conclude that this issue was
unpreserved, to apply the doctrine of invited error, or to affirm on
the alternative ground that Summer failed to sufficiently plead
her incompetence, we reverse the district court’s decision and
remand this matter to the district court for further proceedings
consistent with this opinion.




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