author: ZINTER, Justice (on reassignment). JOHNSON, Circuit Judge

text:
    2008 SD 55
    Lloyd ONE STAR et al., Plaintiffs and Appellees, v. SISTERS OF ST. FRANCIS, DENVER, COLORADO, Defendant and Appellant, and St. Francis Mission, Wisconsin Province of the Society of Jesus, and Diocese of Rapid City, Defendants.
    No. 24313.
    Supreme Court of South Dakota.
    Argued Oct. 1, 2007.
    Reassigned April 3, 2008.
    Decided June 25, 2008.

      Gregory A. Yates of Law Offices of Gregory A. Yates, PC Rapid City, South Dakota, Gregory A. Yates of Law Offices of Gregory A. Yates, PC, Encino, California, Attorneys for plaintiffs and appellees.
    Sheila S. Woodward and Michael F. Marlow of Johnson, Miner, Marlow, Woodward & Huff, Prof. LLC, Yankton, South Dakota Attorneys for defendant and appellant.
   ZINTER, Justice (on reassignment).

[¶ 1.] Lloyd One Star and Marian So-race brought this suit against a boarding school and various religious entities for physical and sexual abuse allegedly perpetrated by members of the entities who worked at the school. The suit was predicated on theories of breach of fiduciary duty, negligence, and vicarious liability. One entity, Sisters of St. Francis, Denver, Colorado (Sisters), moved for summary judgment on the statute of limitations. The circuit court denied the motion and we granted Sisters’ petition for an intermediate appeal. We reverse.

I

[¶ 2.] One Star attended the St. Francis Mission School on the Rosebud Indian Reservation from 1968 until 1970. Sorace, One Star’s older sister, attended the school from 1960 until 1971. One Star and So-race allege that during the course of their attendance they were subjected to sexual, physical, and emotional abuse by priests, brothers, and sisters who operated or worked at the school. For a number of years, One Star and Sorace remained silent about the abuse, claiming that at the time, they were threatened that if they disclosed it to anyone, they or their families would be humiliated, denied food, or otherwise harmed.

[¶ 3.] In 2001, One Star responded to an advertisement in a newspaper seeking information on abuse suffered by former boarding students at the school. One Star’s letter acknowledged the abuse and its effect upon him. In pertinent part, he wrote:

I am a 44 year old man, and the boarding school experiences have been locked up inside me all these years. I know that what was done to me there affected me in a bad way during my whole life, especially in my relationship with my family members, then with my own sons, my wife, my general outlook in life, my relationship with Tunkasila, my self esteem, and the self-medicating during the years when only excessive use of alcohol eased the pain and inner turmoil.

The letter explained in detail the alleged acts of physical and sexual abuse perpetrated upon him and other students. He also identified the alleged perpetrators of the abuse. The letter concluded acknowledging the effects of the abuse:

I am a Lakota man. Three years ago, the Rosebud Sioux Tribe had the bringing out ceremony, in which the chiefs bonnet, which I inherited from my ancestors, was placed on my head. This is a big responsibility, and I can see how the long term effects of the sexual and physical abuse I endured in the early years of my life, and which I have described to you in this account, still have their affects on me personally, and on my interaction with the people. I’m glad about what you’re doing, and I want to support you. You have my story now.

[¶ 4.] Sorace also realized the effects of the alleged abuse several years before filing suit. Sorace suffered from anger management issues throughout her life. In 1995, her boyfriend, Archie Beauvais, suggested that she see a counselor about her problems. She subsequently began counseling with Ron Oney. During counseling, Oney asked Sorace if she had been sexually abused, and Sorace informed him that she did not recall at that time. Shortly thereafter Sorace stopped the counseling sessions. Later that year, however, So-race conversed with a girl who had been sexually abused. During this conversation, Sorace’s memory of her abuse was revived. Sorace described the revival in her deposition:

And as I was sitting there, I started to talk about me. And I said, you know what? I said, when I was little, I said, Brother Chapman — there was a brother at St. Francis Indian School — and I was telling her, it was coming out of me.... I said, this is the first time I’m remembering something. And she goes, you were sexually abused? I said, yeah.

[¶ 5.] After informing Beauvais that she then recalled the abuse, Beauvais advised Sorace to call Ron Oney again and resume counseling for her anger problems. So-race called Oney. She testified in her deposition that her subsequent conversations with Beauvais and Oney involved the following discussions of the abuse, its relationship to her problems, and her follow-up to treat those problems:

Q: [Y]our answers to interrogatories that you gave us before said that in 1995 you told Ron [Oney] that you had been sexually abused.
A: Okay. So then after I went to Ron [Oney] I did not go back to him and when — when [Beauvais] told me to go to counseling, that was about that time.... And so when I left I went to [Beauvais’s] house and I told him, I said, guess what I remembered today? And he said, what, and he said — so I said — I didn’t want to tell him. I didn’t want to tell [Beauvais] because I lied to him and said — because he asked me one time about my anger and he said were you ever sexually abused when you were little, and I said no because I just — you know, I wanted to be with [Beauvais] and at that time I didn’t remember anyway, but when I told him he said, remember when I was asking you and you told me no?
I said, yes, because I didn’t remember then but I do now. That’s why I’m here telling you. And he said, well, the next thing you need to do is call Ron Oney[, the counselor,] in Rapid City and tell him.
So I told Ron [Oney] and he said good. He said that’s what — that’s what — that’s what I was trying to get out of you, and I never went back to him.
Q: So in [19]95, when you remembered, when you were talking to this young lady ... and you called Ron Oney and he said that’s what I was trying to get at, that’s what I was trying to figure out your anger and those things, is that what he told you?
A: Uh-huh, and then I never ivent back to him, and so three — three months later he calls [Beauvais] and asks — has asked [Beauvais] how I was doing. And [Beauvais] said, well, you know, she’s still an angry woman. She’s still an angry lady, and Ron [Oney] was trying to have him talk to me to go back to him, but I couldn’t — I couldn’t pay for the ninety bucks a session, you know.

(Emphasis added.)

[¶ 6.] Although neither One Star nor Sorace commenced this suit within three years of these events, on April 10, 2003, a class action entitled Sherwyn Zephier, et al. v. United States of America, United States Court of Federal Claims, Case No. 03-768, was filed on behalf of Native American children who were allegedly abused at Roman Catholic boarding schools. One Star was a named plaintiff in the action; Sorace was not. On November 1, 2004, the class action was dismissed for failure to exhaust administrative remedies.

[¶ 7.] In June 2004, prior to dismissal of Zephier, One Star and Sorace filed this suit against the following entities: St. Francis Mission; Wisconsin Province for the Society of Jesus; Diocese of Rapid City; and Sisters. Although the complaint was filed in 2004, Sisters was not served with the summons until July 11, 2005.

[¶ 8.] Following discovery, Sisters moved for summary judgment arguing that One Star and Sorace failed to file suit within the statute of limitations provided in SDCL 26-10-25. The circuit court denied the motion without opinion. This Court granted Sisters’ petition for an in-terraediate appeal to consider the following issues:

Whether One Star and Soraces’ action was timely commenced under SDCL 26-10-25.
Whether the statute of limitations was tolled by the class action filed against the United States.
Whether the statute of limitations was tolled by fraudulent concealment.
Whether the statute of limitations was tolled under the doctrine of estoppel by duress.

[¶ 9.] “Under our familiar standard of review in summary judgment cases, we decide only whether genuine issues of material fact exist and whether the law was correctly applied.” Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. This Court views the evidence most favorably to the non-moving party and the burden of proof is on the moving party to show that there are no genuine issues of material fact. Wulf v. Senst, 2003 SD 105, ¶ 17, 669 N.W.2d 135, 141. Although we often distinguish between the moving and nonmoving party in referring to the parties’ summary judgment burdens, the more precise inquiry looks to who will carry the burden of proof on the claim or defense at trial. Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986).

II

[¶ 10.] SDCL 26-10-25 establishes the time in which a civil action arising out of childhood sexual abuse must be brought.

Any civil action based on intentional conduct brought by any person for recovery of damages for injury suffered as a result of childhood sexual abuse shall be commenced within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later.

[¶ 11.] In this case there is no dispute that although the acts of abuse occurred decades ago, One Star and Sorace became aware of the abuse more than three years before filing suit. They argue, however, that their claims did not accrue until 2002, because they claim that until that time they had not discovered the connection between the abuse and the effect that it had on them. Sisters respond that One Star’s letter and Sorace’s deposition reflect that each of them was aware of the causal relationship between the abuse and its effect on them for more than three years before they filed suit. Therefore, Sisters contend that it presumptively established that Plaintiffs commenced their suit outside the statute of limitations. Sisters further contend that having made a presumptive showing that the suit was untimely, One Star and Sorace failed to satisfy their responsive burden of identifying any facts creating a material issue of entitlement to an exception to the statute of limitations. We agree with Sisters.

[¶ 12.] In considering summary judgment on a statute of limitations defense, the burden of production shifts:

When faced with a “ ‘summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations^]’ ”
... Generally, a statute of limitations question is left for the jury; however, “ ‘[djeciding what constitutes accrual of a cause of action’ ” is a question of law and reviewed de novo. In reviewing under this standard, “[w]e give no.deference to the trial court’s conclusions of law.”

Peterson v. Rohm, 2000 SD 27, ¶¶ 7-8, 607 N.W.2d 8, 10-11 (citations omitted). See also Conway v. Conway, 487 N.W.2d 21, 23 (S.D.1992). Thus, we must first determine what constitutes accrual of a cause of action under SDCL 26-10-25. Then, we must determine whether the parties satisfied their respective summary judgment burdens on this defense.

[¶ 13.] With respect to accrual, there is no dispute that both Plaintiffs discovered the alleged abuse more than three years before filing suit. SDCL 26-10-25, however, may delay the accrual until a plaintiff reasonably should have discovered the causal connection between the alleged abuse and the plaintiffs injury. Therefore, we agree with One Star and Sorace that, under this statute, discovery of the injuries alone is not sufficient to start the running of the statute. Rather, there must also be discovery of some tie linking the acts of abuse to an injury; i.e., “that the injury or condition was caused by the act.” SDCL 26-10-25.

[¶ 14.] In Stratmeyer v. Stratmeyer, 1997 SD 97, 567 N.W.2d 220, in the course of discussing the retroactivity of SDCL 26-10-25, we -cited Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (Ct.App.1987), which discussed when a cause of action for childhood sex abuse accrues at common law:

Sexual abuse at an early age prompts involuntary coping mechanisms which may prevent victims from making the causal connection between the abuse they suffered as children and the psychological problems they experience as adults.
[A] cause of action does not necessarily accrue when the first manifestations of injury occur. The claimant has leeway to not start an action until she knows more about the injury and its probable cause.
The policy justification for applying the statute of limitations to protect defendants from the threat of liability for deeds in the past is unpersuasive in incestuous abuse cases.... Further, the injustice of barring meritorious claims before the claimant knows of the injury outweighs the threat of stale or fraudulent actions.

Stratmeyer, 1997 SD 97, ¶ 19, 567 N.W.2d at 224 (quoting Hammer, 418 N.W.2d at 27).

[¶ 15.] One Star and Sorace contend that under Stratmeyer-Hammer, their causes of action did not accrue until they were fully aware of all of their injuries. It should be noted, however, that the issue in Stratmeyer was limited to whether SDCL 26-10-25 should be applied retroactively, and Stratmeyer did not determine when a cause of action accrues under SDCL 26-10-25. More importantly, the Hammer rule, as clarified by the Wisconsin Supreme Court, specifically rejects One Star and Sorace’s full extent of the injuries argument. In Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 302, 533 N.W.2d 780 (1995), the Wisconsin Supreme Court clarified Hammer, holding that under this type of childhood sex abuse discovery rule, a plaintiff may not delay commencement of an action until the full extent of the injury is known. Rather, a discovery statute of limitations accrues as soon as a plaintiff obtains sufficient evidence that a wrong has indeed been committed by an identified person. Id. at 320-21, 533 N.W.2d at 787.

[¶ 16.] This Court has also rejected Plaintiffs’ “full extent of the injuries” argument under a discovery statute of limitations. In Strassburg v. Citizens State Bank, 1998 SD 72, 581 N.W.2d 510, we considered the time of accrual under a discovery statute (SDCL 15-2-13) in a situation where a plaintiff accused a bank of conversion in connection with the bank’s setoff against the plaintiffs account. In 1985, the bank admitted it had setoff funds, but not the amount plaintiff claimed. Despite knowledge of the 1985 setoff, the plaintiff did not sue the bank until a decade later, when he received information that the bank may have setoff a larger amount. In addressing accrual under discovery statutes, this Court noted that “[a] statute of limitations ordinarily begins to run when the plaintiff either has actual notice of a cause of action or is charged with notice.” Id. ¶ 10, 581 N.W.2d at 514. Elaborating on being charged with notice, we stated, “Constructive notice is notice imputed by the law to a person not having actual notice.” Id. (citing SDCL 17-1-3). We explained, “[o]ne having actual notice of circumstances sufficient to put a prudent person on inquiry about ⅛ particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.’ ” Id. (citing SDCL 17-1-4). Therefore, we specifically stated: “Limitations periods will not abide indefinitely while those aggrieved discover all their damages.” Id. ¶ 11, 581 N.W.2d at 515. Instead, “[statutes of limitations begin to [accrue] when plaintiffs first become aware of facts prompting a reasonably prudent person to seek information about the problem and its cause.” Id. ¶ 13, 581 N.W.2d at 515.

[¶ 17.] These rules of accrual apply in childhood sex abuse cases involving statutes that delay the running of the statute until such time as a reasonable person should have discovered a causal connection between the abuse and the injury. In Frideres v. Schiltz, 113 F.3d 897 (8th Cir.1997), the plaintiff had some memories of her childhood abuse, the last incident occurring in 1967. In 1982, she sought help from her family physician for depression, at which time the physician recommended that the plaintiff seek further professional help or try an antidepressant drug. In 1988, the plaintiff visited with her priest who also encouraged her to seek professional help for the difficulties she was experiencing as a result of the abuse. The plaintiff did not file suit until 1991. The court applied the same discovery rule, which allowed that plaintiff to bring suit within a prescribed period from the discovery of the connection between the abuse and the injuries. The Eighth Circuit concluded that given that plaintiffs knowledge of her prior sexual abuse, and in light of her conversations with the priest and physician, she “had enough knowledge linking the abuse and the resultant injuries ... to put her on inquiry notice” of her cause of action. Id. at 899. The Frideres court explained:

We agree with Frideres that mere knowledge of abuse will not necessarily start the running of the limitations period in every case. In this case, however, Frideres had enough knowledge linking the abuse and the resultant injuries, as evidenced by her visits to her family physician and priest in search of advice, to put her on inquiry notice more than two years prior to the commencement of this action. As the Supreme Court of Iowa stated, “ ‘the statute of limitations begins to run when a plaintiff first becomes aware of facts that would prompt a reasonably prudent person to begin seeking information as to the problem and its cause.’ ” At that time, a person is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation. Because Frideres remembered the abuse and was aware of enough of its effects to seek help more than two years prior to the commencement of her action, her action is time barred.

Id. (citations omitted).

[¶ 18.]Thus, a plaintiff under SDCL 26-10-25 need not be fully aware of all his or her injuries before the statute of limitations accrues. Id.; Strassburg, 1998 SD 72, ¶ 11, 581 N.W.2d at 515. See also Woodroffe v. Hasenclever, 540 N.W.2d 45, 46-49 (Iowa 1995). Rather, the statute accrues and the plaintiff is put on inquiry notice when facts come to light that would prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause. See Strassburg, Fñderes, and Woodroffe, supra. Therefore, our remaining questions are whether, under summary judgment standards, Sisters made its presumptive showing that Plaintiffs were on inquiry notice of their injuries more than three years prior to July 11, 2005; and if so, whether Plaintiffs satisfied their responsive burden of identifying facts creating a material issue of dispute concerning their failure to file suit within those three years.

[¶ 19.] With respect to One Star, Sisters presumptively established that One Star was on inquiry notice of the relationship between his condition and its cause when he responded to the newspaper advertisement in May of 2001. At that time, One Star wrote: “I know that what was done to me there affected me in a bad way during my whole life, especially in my relationship with my family members, then with my own sons, my wife, my general outlook in life, my relationship with Tunka-sila, my self esteem.... ” This response, together with the rest of his letter to the newspaper, presumptively established that he was on actual notice of the effects that the sexual abuse had on him by May of 2001.

[¶ 20.] Although the original complaint was filed in 2004, the suit against Sisters was not commenced until the summons was served on July 11, 2005. SDCL 15-2-30. Because One Star did not commence this suit until more than three years after he had actual knowledge of the causal connection, Sisters presumptively established that his action was commenced outside the time limits prescribed by SDCL 26-10-25.

[¶ 21.] Sisters also presumptively established that Sorace commenced her case more than three years after she was on actual or inquiry notice that her injuries were caused by the abuse. Concededly, before 1995, Sorace claimed her recollection of the abuse was repressed. Therefore, we may assume that at that time Sorace was unaware her anger management problems were caused by the abuse. Sisters, however, presumptively established that later in 1995: Sorace’s recollection of the abuse revived; both Beauvais and Sorace’s mental health counselor (Oney) thought that her anger issues were connected to the sexual abuse; Oney specifically advised her of this latter fact; and, like the plaintiff in Frideres, Sorace was encouraged to seek professional help to treat those injuries but she failed to do so. Therefore, Sorace possessed actual knowledge of a causal connection to her anger management problem in 1995. That discovery put her on inquiry notice to seek information about the problem and its cause. Strassburg, ¶ 13, 581 N.W.2d at 515. There is, however, no dispute that Sorace did not commence her suit until more than three years following this notice. Therefore, Sisters met their initial burden of presumptively showing that the case was brought beyond the statutory period.

[¶ 22.] Because Sisters satisfied its burden of making a presumptive showing, the burden shifted to One Star and Sorace to identify specific facts demonstrating that their claims fell within an exception; i.e., disputing that they were on actual or inquiry notice in 2001 and 1995, respectively. The responsive affidavits of One Star and Sorace, however, contained nothing but undated statements indicating their ages at the time of the alleged abuse and the virtually identical boilerplate aver-ments that the majority of seventy-two plaintiffs submitted in resisting summary judgment in Zephier v. Catholic Diocese of Sioux Falls, 2008 SD 56, ¶ 3 n. 2, 752 N.W.2d 658. Rather than providing facts disputing inquiry notice or identifying conflicting facts of the time and place when they allege they discovered the causal connection, like all of the plaintiffs in both cases, One Star and Sorace simply submitted identical affidavits generally asserting: “[s]ince I have been involved in this lawsuit I have had discussions with other victims of the abuse. As a result many memories have been revived and some abuse events recalled for the first time by me and I am now for the first time aware of the many altering affects that the abuse has had on me.” And, like all of the plaintiffs in both cases, One Star and So-race declared that “specifics surrounding the abuse will be set forth in more detail in my deposition, when it is taken in this case or when I testify at trial in this case.”

[¶ 23.] These types of general statements are insufficient to rebut a properly supported motion for summary judgment under SDCL 15-6—56(e). That statute requires that “[w]hen a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial.” SDCL 15 — 6—56(e) (emphasis added). In Bordeaux v. Shannon County Schools, we emphasized this requirement:

We require “those resisting summary judgment [to] show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.” In fact, “SDCL 15 — 6— 56(e) requires the opposing party to be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.”

2005 SD 117, ¶ 14, 707 N.W.2d at 127 (emphasis added) (citations omitted). See also Baatz v. Arrow Bar, 452 N.W.2d 138, 140 (SD 1990) (stating: “Mere allegations that are devoid of specific facts will not prevent the issuance of summary judgment.”); Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876 (noting, “[u]nder SDCL 15-6-56(e), the opposing party [must] be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment”); U.S. Bank Natl. Assn. v. Scott, 2003 SD 149, ¶ 24, 673 N.W.2d 646, 653 (same).

[¶ 24.] Sorace provided the only other responsive evidence: an affidavit from psychologist James Snow, who diagnosed chronic post-traumatic stress disorder in 2006. He opined that Sorace was not emotionally/psychologically equipped to discover “that condition” before he diagnosed it. Sorace contends her late discovery of this new condition made her suit timely. Although we treat Snow’s factual averments as true for purposes of summary judgment, the discovery of new injuries does not create a material issue of disputed fact because discovery of this “new injury” is irrelevant under the discovery/inquiry notice statute of limitations.

[¶25.] Snow’s 2006 diagnosis is irrelevant because after being put on inquiry notice of the abuse and some of the resultant injuries in 1995, Sorace’s cause of action accrued, the statute began to run, and Sorace had three years to investigate and file suit. Having failed to file suit within those three years, the subsequent discovery of new injuries or the subsequent revival of past abuse did not, as a matter of law, revive the cause of action. As we specifically noted in Strassburg, a discovery/inquiry notice statute is not tolled as to a plaintiff who discovers the wrongful act and some of the resultant injuries but later claims discovery of additional injuries. 1998 SD 72, ¶ 11, 581 N.W.2d at 515. “Limitations periods will not abide indefinitely while those aggrieved discover all their damages.” Id. Ultimately, “[o]ne having actual notice of circumstances sufficient to put a prudent person on inquiry about a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.” Id. ¶ 10, 581 N.W.2d at 515. As the Iowa Supreme Court explained in similar sex abuse cases:

[O]nee a person is aware a problem exists, [she] has a duty to investigate even though [she] may not have exact knowledge of the nature of the problem that caused the injury.
[T]he duty to investigate does not depend on exact knowledge of the nature of the problem that caused the injury. It is sufficient that the person be aware that a problem existed. One purpose of inquiry is to ascertain its exact nature.
[And therefore, t]he question in any given case is not, What did plaintiff know of the injury done [to her]? but, What might [s]he have known, by the use of the means of information within [her] reach, with the vigilance which the law requires of [her]?

Woodroffe, 540 N.W.2d at 48-49.

[¶ 26.] In this case there is no dispute that Sorace became aware of both the abuse and some of the causally related injuries in 1995. That discovery prompted a duty to seek information about the problem and its cause, and to file suit within three years. Sorace, however, failed to do so. Sorace also failed to raise a specific issue of material fact disputing her 1995 discovery of the abuse and some of the injury caused by that abuse. She finally failed to identify any fact suggesting that a reasonably prudent person would not have pursued the matter through investigation and suit during those three years. Therefore, her discovery of new alleged injuries eight years after her cause of action accrued did not create a material issue of disputed fact precluding summary judgment.

[¶ 27.] We conclude that Sisters made its presumptive showing that Plaintiffs’ suit was filed beyond the statute of limitations. We also conclude that Plaintiffs failed to set forth specific facts in their responsive affidavits creating a material issue of disputed fact concerning Sisters’ showing. Therefore, the circuit court incorrectly denied summary judgment under SDCL 26-10-25.

Ill

[II28.] One Star and Sorace contend that the filing of the federal Ze-phier class action tolled the statute of limitations for these subsequent state claims. The United States Supreme Court has held that a class action tolls a statute of limitations asserted against class and non-class member plaintiffs until the class certification issue is resolved. “[C]ommencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Am. Pipe Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 766, 38 L.Ed.2d 713 (1974). See also Crown, Cork Seal Co., Inc. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 2397-98, 76 L.Ed.2d 628 (1983) (stating: “Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied.”).' Unnamed class members may also be protected by this rule. Devlin v. Scardelletti, 536 U.S. 1, 10, 122 S.Ct. 2005, 2010, 153 L.Ed.2d 27 (2002). The theory of class action tolling is two-fold: the class action provides notice to the defendant of the potential claim, and tolling promotes judicial efficiency by relieving individual class members from their obligation to file separate lawsuits in the fear that the class action will later be dismissed after the statutory period has expired. See Am. Pipe, 414 U.S. at 553-54, 94 S.Ct. at 766, 38 L.Ed.2d 713.

[¶ 29.] Considering these purposes, the doctrine of class action tolling is not without limits. In the case before us now, Sisters was not a named defendant in the Zephier class action, and therefore tolling would not promote the purpose of providing notice to Sisters of this claim. Consequently, class action tolling does not apply when the defendant is not named in the class action. See Boone v. Citigroup, Inc., 416 F.3d 382, 392 (5th Cir.2005) (holding that because none of the current defendants were named as defendants in the prior class action, it was “facially obvious” that the pendency of the class action could not toll limitations as to any of them). See also Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp. 413 F.3d 553, 568 (6th Cir.2005); Wade v. Danek Med., Inc., 5 F.Supp.2d 379, 383 n.4 (E.D.Va.1998); Columbus Bd. of Educ. v. Armstrong World Indus., Inc., 89 Ohio App.3d 846, 627 N.E.2d 1033, 1040 (1993).

[¶ 30.] Although Sisters was not a defendant in Zephier, Plaintiffs argue that class action tolling nevertheless applies because Sisters was acting as the alter ego of the named defendant in Zephier. Plaintiffs contend that the Zephier suit complained of the United States’ management and control of Indian boarding schools, and therefore Sisters was effectively on notice of a claim alleging sexual and physical abuse. Plaintiffs’ contention, however, fails to show how Sisters could be considered the alter ego of the United States. They have also failed to demonstrate how-allegations of wrongdoing by United States in a different jurisdiction, involving different parties and claims provided notice to Sisters of Plaintiffs’ current claim.

[¶ 31.] Because Plaintiffs have failed to cite any authority supporting class action tolling in cases involving different defendants, different claims, in different jurisdictions, this Court declines to adopt Plaintiffs’ theory of cross-jurisdictional tolling during the Zephier class action litigation.

IV

[¶ 32.] One Star and Sorace argue that Sisters intentionally and fraudulently concealed the abuse in an attempt to minimize Sisters’ liability. Fraudulent concealment is an implied exception to the statute of limitations. When applicable, the exception tolls the statute of limitations until the cause of action is discovered or might have been discovered by the exercise of diligence. Hinkle v. Hargens, 76 S.D. 520, 524-25, 81 N.W.2d 888, 890-91 (1957). If a trust or confidential relationship exists, an affirmative duty to disclose is imposed, and mere silence by the party under that duty constitutes fraudulent concealment. Glad v. Gunderson, Farrar, Aldrich & DeMersseman, 378 N.W.2d 680, 682-83 (S.D.1985). The silence must concern defects which the party with the duty to disclose knew or should have known. Holy Cross Parish v. Huether, 308 N.W.2d 575, 577 (S.D.1981).

[¶ 33.] Plaintiffs assert that trust or confidential relationship tolling applies under Koenig v. Lambert, F2ÍI N.W.2d 903 (S.D.1995) (overruled on other grounds by Stratmeyer, 1997 SD 97, 567 N.W.2d 220). In Koenig, an altar boy was sexually abused by his priest from 1958 to 1975. It was not until 1991, through therapy, that the plaintiff began to realize that he had been the victim of abuse. In 1992, the plaintiff sued the priest and the Diocese. In concluding that summary judgment was incorrectly granted in favor of the Diocese, this Court noted that “if there existed a trust or confidential relationship between the Diocese and Koenig then silence on the part of the Diocese [was] sufficient for this Court to find that the Diocese fraudulently concealed the cause of action from Koenig, thereby tolling the statute of limitations.” Id. at 906. In determining that a fiduciary relationship existed, we further noted that the “Diocese and its members were not only acting as members of the church, they were also acting as agents or representatives of God,” and that the plaintiff “put his trust and faith in the members of the Diocese, and was encouraged to do so by the Diocese.” Id.

[¶ 34.] Like the plaintiff in Koenig, One Star and Sorace contend they put their trust in Sisters while attending St. Francis, and therefore, the cause of action was fraudulently concealed until such time as Sisters affirmatively disclosed it to them. One Star and Sorace fail, however, to recognize that fraudulent concealment only tolls the statute of limitations “until the cause of action is discovered or might have been discovered by the exercise of diligence.” Hinkle, 76 S.D. at 524, 81 N.W.2d at 890. Thus, fraudulent concealment does not apply, even where a confidential relationship exists, if the plaintiff obtains “knowledge of the basic operative facts.” Glad, 378 N.W.2d at 683. Here, both One Star and Sorace were aware of the abuse and injury (One Star by May of 2001 and Sorace by 1995), as well as the identity of the abusers, for more than three years prior to bringing suit against Sisters. Under these circumstances, fraudulent concealment does not apply. Id. See also Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 427 (2d Cir.1999) (concluding that tolling for fraudulent concealment “operates for the benefit of those — and we think only those — who are not aware of the facts that have been concealed); Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal.App.4th 603, 79 Cal. Rptr.2d 73 (1998) (finding no estoppel by concealment because plaintiff was aware of his injury, the priest’s identity and the priest’s connection with the church); Doe v. Archdiocese of Washington, 114 Md. App. 169, 689 A.2d 634 (1997) (concluding that statute of limitations was not tolled by fraudulent concealment doctrine where plaintiff did not allege any acts subsequent to the abuse that prevented him from being aware of his claims); Zumpano v. Quinn, 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E.2d 926, 930 (2006) (concluding that tolling was inapplicable where plaintiffs “possessed timely knowledge of the actual misconduct and the relationship between the priests and their respective dioceses to make inquiry and ascertain relevant facts prior to the running of the statute of limitations”); Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 849 N.E.2d 268, 279 (2006) (finding no fraudulent concealment where plaintiff “had all of the facts necessary to investigate and prosecute his potential causes of action against the archdiocese”); Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270 (Pa.Super. 2005) (finding no tolling where defendants never concealed the fact of the injury itself, the identity of the abuser, or the abuser’s place within the Archdiocese).

[¶ 35.] Here, both One Star and Sorace not only had actual knowledge of the basic operative facts necessary to file this suit for more than three years before they commenced it, they had actual notice of substantial injury caused by that abuse and they were on inquiry notice of any further claimed injuries. Furthermore, they have not suggested that Sisters even knew of their resultant injuries. Therefore, Sisters could not, as a matter of law, have fraudulently concealed something that One Star and Sorace had either already discovered or something that they alone knew. A California Court of Appeals explained the consequences of a contrary rule:

The wrongful conduct alleged against the church was its inaction in the face of the accusations against Father Llanos. Thus, what the church failed to disclose was merely evidence that the wrong had been committed. If plaintiffs approach were to prevail, then any time a tortfea-sor failed to disclose evidence that would demonstrate its liability in tort, the statute of limitations would be tolled under the doctrine of concealment. Regardless of whether the issue is characterized as fraud by concealment or equitable estoppel, this is not the law.

Mark K., 67 Cal.App.4th at 613, 79 Cal. Rptr.2d 73. Because One Star and Sorace had actual notice of the operative facts allegedly concealed, the doctrine of fraudulent concealment did not toll the statute of limitations.

V

[¶ 36.] Plaintiffs finally assert tolling of the statute of limitations under the equitable theory of estoppel by duress. They acknowledge that South Dakota has not recognized this exception to the statute of limitations. For purposes of this case, however, we may assume without deciding that the exception exists because Plaintiffs did not make the summary judgment showing necessary to establish entitlement to the exception.

[¶ 37.] Where it has been adopted, the exception generally requires a showing that the duress be continuous. See Overall v. Estate of Klotz, 52 F.3d 398, 404, (2d Cir.1995) (noting that a plaintiff must “demonstrate some threats or abuse during the limitations period” for duress tolling to be appropriate). See also Rakes v. United States, 442 F.3d 7, 26 (1st Cir.2006) (requiring plaintiff to demonstrate that duress was continuous before tolling available); Murphy v. Merzbacher, 346 Md. 525, 697 A.2d 861, 869-70 (1997) (rejecting claim of duress because there was “absolutely no evidence” that the defendant made any threats to the victims or engaged in any overt acts towards them for over twenty years prior to the commencement of the litigation).

[¶ 38.] In this case, Plaintiffs identify no facts suggesting that the alleged duress continued from the time they were students until they filed this suit. They do not allege, either in their complaint or affidavits, that any threats continued during the forty years after they left St. Francis. Consequently, even if we recognized the exception, Plaintiffs did not make their responsive showing necessary to satisfy this exception to the statute of limitations.

VI

[¶ 39.] We conclude that One Star and Sorace failed to commence this action within three years of their discovery of the abuse and their injuries. Furthermore, class action tolling, fraudulent concealment, and equitable estoppel did not toll the statute as a matter of law or fact. The circuit court’s order denying Sisters’ motion for summary judgment is reversed.

[¶ 40.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 41.] JOHNSON, Circuit Judge, concurs in part and dissents in part.

[¶ 42.] JOHNSON, Circuit Judge, sitting for SABERS, Justice, disqualified.

JOHNSON, Circuit Judge

(concurring in part and dissenting in part).

[¶43.] I concur with the majority’s holding that, with respect to One Star, the circuit court should have granted Sisters’ motion for summary judgment. As the majority correctly notes, One Star’s response to the newspaper advertisement presumptively established that by May of 2001 he was on inquiry notice of the causal connection between the acts of abuse at the St. Francis Mission School and his current condition. Armed with this knowledge, and pursuant to SDCL 26-10-25, One Star had a three-year period in which to commence a lawsuit against Sisters. His failure to commence suit within that time period renders summary judgment appropriate.

[¶ 44.] I disagree with the Court’s similar finding as to Sorace. Contrary to the majority’s assertion, Sisters has not met its burden of presumptively establishing that “Sorace commenced her case more than three years after she was on actual and inquiry notice that her injuries were caused by the abuse.” Supra ¶ 21.

[¶ 45.] In attempting to make this showing, Sisters relies exclusively on So-race’s deposition testimony. The gist of this testimony provides:

Q: So in [19]95, when you remembered, when you were talking to this young lady ... and you called Ron Oney and he said that’s what I was trying to get at, that’s what I was trying to figure out your anger and those things, is that what he told you?
A: Uh-huh, and then I never went back to him, and so three-three months later he calls [Beauvais] and asks-has asked [Beauvais] how I was doing. And [Be-auvais] said, well, you know, she’s still an angry woman. She’s still an angry lady, and Ron [Oney] was trying to have him talk to me to go back to him, but I couldn’t-I couldn’t pay for the ninety bucks a session.

It is true that Oney, a mental health professional, and Beauvais, a friend of Sorace and the holder of a doctorate in an unspecified field, may have made the connection between Sorace’s anger issues and the sexual abuse she endured many years before. The determinative question, however, is not whether a trained professional could make the causal connection. Rather, the statute of limitations begins to run “when facts come to light that would prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause.” Supra ¶ 18 (emphasis added).

[¶46.] Oney’s “specific advisement” to Sorace of the causal relationship between her problems and the abuse was ambiguous at best, and at worst, provided no notice at all. Sorace’s deposition testimony established little more than the fact that her recollection of abuse was something Oney deemed important in his counseling sessions with Sorace when trying to diagnose her problems with anger. This, however, does not equate to a general finding that Sorace or a reasonably prudent person in her position would have made the connection between the acts of abuse and her current condition, and cannot as a matter of law be said to have afforded Sorace the type of notice she was owed under SDCL 26-10-25.

[¶ 47.] In its effort to show that Sorace was on both actual and inquiry notice in 1995, the majority analogizes to the Fri-deres case. The facts of Frideres are materially distinguishable from those presently before the Court. Frideres had always retained some memory of her abuse. So-race, on the other hand, had repressed her boarding school memories for quite some time. Only after beginning counseling sessions and talking with another girl who had been sexually abused was Sorace able to recall her abuse.

[¶ 48.] More importantly, Frideres had previously consulted with other professionals regarding her abuse and symptoms of depression, and had received specific advice from these professionals associating the abuse and her current condition. As early as 1982 — eight years before speaking with a clinical psychologist — she had sought help from her family physician for feelings of depression. Her doctor recommended that she seek further professional help or try an antidepressant drug. In 1988 she had spoken with her priest about the abuse. The priest specifically advised her to “seek professional help for the difficulties she was experiencing as a result of the abuse.” Frideres, 113 F.3d at 898 (emphasis added). Thus, Frideres had been clearly informed of the cause of her problems at least several years prior to filing suit. In contrast, Sorace had minimal contact with any medical, psychological, or clerical professionals prior to her treatment with Dr. Snow. It is true that Sorace had gone to counseling with Ron Oney in 1995, but she did not discuss her abuse with him at that time, because she could not remember it. Sorace’s memories of abuse came back later in 1995, but her only subsequent contact with Oney was a phone call. After telling Oney that she had indeed been sexually abused as a child, he vaguely suggested that “that’s what I was trying to get out of you.” Oney’s advice lacked the clarity present in Frideres and would not “prompt a reasonably prudent person to seek out information regarding his or her injury or condition and its cause.” Supra ¶ 18.

[¶ 49.] Even if Sorace’s deposition testimony was sufficient to presumptively establish actual or inquiry notice, I disagree with the majority’s holding that Sorace has “failed to raise a specific issue of material fact disputing her 1995 discovery of the abuse and some of the injury caused by that abuse.” Supra ¶ 26. Dr. Snow’s affidavit does exactly that.

[¶ 50.] In his affidavit, Dr. Snow diagnoses Sorace’s condition as Chronic Post-traumatic Stress Disorder and states that Sorace “was not emotionally and/or psychologically equipped to recognize that condition as being related to the sexual abuse trauma[.]” He then explains the self-concealing nature of childhood sexual abuse, noting that “[t]he memories and understanding of the effects of the trauma are, therefore, not otherwise fully understood, appreciated, or, in some instances, even remembered by the victim.” Indeed, this Court has previously recognized the repressive symptoms that a victim of childhood sexual abuse may endure:

Imagine being pricked on the arm with a pin. At first, such an intrusion would be disturbing, but with time might seem uneventful. Now imagine the pin carried a dreaded affliction, only discoverable after years of incubation. Such is often the nature of childhood sexual abuse. Many children only realize years later the true significance of the abuse they endured, especially in cases where the molestation occurred at the hands of family members or other trusted individuals. For some children, sexual violation is so traumatic it becomes psychologically self-concealing, if only to preserve sanity. For this reason, our Legislature enacted SDCL 26-10-25 creating a discovery rule for adult survivors of child sex abuse.

Stratmeyer, 1997 SD 97, ¶ 13, 567 N.W.2d at 222-23. Sexual abuse at an early age prompts involuntary coping mechanisms which can prevent victims from making the causal connection between their past abuse and the psychological problems they experience as adults. Id. ¶ 19, 567 N.W.2d at 224. According to Dr. Snow, these combined circumstances made it “unrealistic for Ms. Sorace to comprehend or otherwise discover that she suffered from the condition I have diagnosed, as a result of the childhood sexual abuse, without counseling[.]”

[¶ 51.] Nevertheless, the Court disregards Dr. Snow’s 2006 diagnosis as “irrelevant,” arguing that it merely represents the subsequent discovery of a “new injury.” Supra ¶24. The Court reads Dr. Snow’s affidavit too narrowly. Chronic Posttraumatic Stress Disorder is not a “new injury,” but rather a specialized medical/psychological term encompassing and describing the symptoms that Sorace had previously exhibited,' ie., anger management problems. These same problems, regardless of their name, have resonated in Sorace for many years and yet, until recently, Sorace was unable to make the connection between the abuse and her anger issues. Dr. Snow’s affidavit explaining the self-concealing nature of childhood sexual abuse provides a rational justification for Sorace’s inability to bridge the gap and thus satisfies Sorace’s burden.

[¶ 52.] Additionally, in explaining the circumstances present in this case-the self-concealing nature of childhood sexual abuse, the emotional and psychological instability of the victim, and the fact that the abuse took place under the supervision and control of priests and other affiliates of the church — the affidavit at least implicitly suggests that it would have been unrealistic for anyone in Sorace’s position to associate her anger problems with the acts of abuse. As the Court acknowledges, such a showing may create a material issue of disputed fact. Supra n. 3. Here, Dr. Snow’s affidavit raises a material issue as to whether Sorace’s actions in not filing suit sooner were reasonable. The circuit court’s denial of summary judgment as to Sorace was appropriate.

[¶ 53.] For these reasons, I respectfully dissent.

      . We recognized this distinction in Bordeaux, stating, "those resisting summary judgment must show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.” Bordeaux, 2005 SD 117, ¶ 14, 707 N.W.2d at 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted)).

      . Relying in part on Woodroffe v. Hasenclever, 540 N.W.2d 45, 48 (Iowa 1995), another childhood sexual abuse case.

      . This is not a case in which Sorace filed a responsive affidavit suggesting that a reasonably prudent person would not have pursued the matter or would not have discovered a causal connection within three years of the 1995 discovery of the abuse and injury. Had such an affidavit been filed, a material issue of disputed fact may have been created; i.e., would a reasonably prudent person have misunderstood the causal connection and been justified in failing to pursue the matter under the inquiry notice duty? In this case, however, Sorace made no such showing and therefore the statute began to run at the time of the 1995 discoveries.

      . Many courts hold that class action cross-jurisdictional tolling does not apply. See, e.g., Portwood v. Ford Motor Co., 183 Ill.2d 459, 233 Ill.Dec. 828, 701 N.E.2d 1102, 1105 (1998); Ravitch v. Pricewaterhouse, 793 A.2d 939, 941-43 (Pa.Super.2002); Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805, 808-09 (Tenn.2000). See generally Thelen v. Massachusetts Mut. Life Ins. Co., 111 F.Supp.2d 688, 694 (D.Md.2000) (providing that under the facts of the case, cross-jurisdictional tolling did not apply). Although other jurisdictions allow class action cross-jurisdictional tolling, we did not permit cross-jurisdictional tolling on the one occasion we considered it. Peterson v. Hohm, 2000 SD 27, ¶¶ 16-18, 607 N.W.2d 8, 13 (rejecting a claim that the filing of an action in a federal court without diversity jurisdiction tolled the state statute of limitations in a subsequent state case).

      . The claims asserted in Zephier involved allegations of breach of treaty and breach of trust by the United States. The claims asserted in this case alleged that Sisters were negligent and were vicariously liable for their members’ acts and omissions. At least one court has concluded that different claims precludes class action tolling. See Butler v. Deutsche Morgan Grenfell, Inc., 140 N.M. 111, 140 P.3d 532 (N.M.Ct.App.2006) (concluding that because defendants had not been named in underlying class action, and because many of plaintiff's claims differed substantially from those asserted by the class plaintiffs, the defendants were not adequately on notice to permit class action tolling).

      . Other cases that have recognized some form of the exception include Bank of Penfield v. Colclough, 154 Ga. 222, 114 S.E. 33 (1922) and Ateeq v. Najor, 15 Cal.App.4th 1351, 19 Cal.Rptr.2d 320 (1993).


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    CEMEN TECH, INC., an Iowa Corporation, Appellant, v. THREE D INDUSTRIES, L.L.C., an Iowa Limited Liability Company, Dean Longnecker, Daniel E. Jones, Bradley J. Luhrs, James Yelton, Scott Longnecker, Mark Dorman, Daniel Pothast, and David Enos, Appellees.
    No. 03-1869.
    Supreme Court of Iowa.
    May 2, 2008.
    Rehearing Denied July 24, 2008.

      William B. Serangeli and CeCelia Ibson Wagner of Smith, Schneider, Stiles & Ser-angeli, P.C., Des Moines, for appellant.
    F. Richard Lyford and Joan M. Fletcher of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellees Three D Industries, L.L.C., Dean Longnecker, Daniel E. Jones, Scott Longnecker, James Yelton, Mark Dorman, Daniel Pothast, and David Enos.
    John P. Roehrick and Curtis J. Krull, Des Moines, for appellee Bradley J. Luhrs.
   LARSON, Justice.

When the defendants in this case began to manufacture a cement mixer similar to one manufactured by Cemen Tech (CTI), CTI sued them, alleging breach of contract, misappropriation of trade secrets, unfair competition, and breach of fiduciary duty. The district court granted the defendants’ motion for summary judgment on virtually all of the plaintiffs claims, and the plaintiff appealed. We affirm in part, reverse in part, and remand for further proceedings.

I. Facts and Prior Proceedings.

CTI is a manufacturer of mobile volumetric concrete mixers — machines designed to mix concrete components at job sites. Defendants Dean Longnecker and David Enos, through their business, Three D Company, L.L.C., were interested in purchasing CTI and, on October 25, 1999, sent a letter of intent to CTI requesting information regarding the business. After a number of letters of intent and nondisclosure and confidentiality agreements, CTI provided Longnecker and Enos with business information, including organizational charts; employee handbooks; a strategic plan; and information on customer deposits, assets, accounts payable, accounts receivable, financial statements, and lists of customers and suppliers.

By the spring of 2001, it became clear that Longnecker and Enos were not going to purchase CTI. On June 5, 2001, CTI terminated Three D Company, L.L.C.’s latest letter of intent. Discussions continued, however, between the parties regarding the possible purchase of a portion of CTI’s business — its “sludge” division. On September 6, 2001, Longnecker and Enos, through an entity they called “Clarke Industries, L.L.C.,” submitted a letter of intent to CTI to purchase the sludge division. CTI apparently ignored it.

In July 2001 Brad Luhrs, an employee of CTI, contacted Longnecker about the possibility of leaving CTI and going to work with Longnecker and Enos to start their own mobile mixer business. By the end of 2001, Dan Jones, Brad Luhrs, Mark Dorman, Dan Pothast, and Scott Long-necker resigned from CTI and began working for Three D Industries developing mobile volumetric concrete mixers in direct competition with CTI.

In January 2002 the defendants exhibited a prototype cement mixer at the World of Concrete show closely resembling CTI’s mixer. CTI sued Three D Industries, L.L.C. and eight individual defendants for breach of contract, misappropriation of trade secrets, unfair competition, breach of fiduciary duty, and tortious interference with contract. Defendants Dean Long-necker and Scott Longnecker filed defamation counterclaims against CTI. All defendants moved for summary judgment on CTI’s claims. The district court granted the defendants’ motion for summary judgment in part and denied it in part, and CTI appealed. Dean Longnecker and Scott Longnecker dismissed their defamation counterclaim without prejudice. CTI dismissed, without prejudice, all of its claims remaining after the district court’s ruling on the defendants’ summary judgment motion. The issues remaining before this court are those raised by CTI in its appeal from the district court’s summary judgment ruling.

II. Standard of Review.

Review of a ruling on a motion for summary judgment is for correction of errors at law. Iowa R.App. P. 6.4; Clinkscales v. Nelson Sec., Inc., 697 N.W.2d 836, 840-41 (Iowa 2005). Summary judgment is proper only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable minds can differ on how the issue should be resolved.” Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004). In reviewing the district court’s ruling, the evidence presented must be viewed in the “light most favorable to the party opposing the motion for summary judgment.” Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000); Gen. Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). However, the opposing party “may not rest upon the mere allegations of his pleading but must set forth specific facts showing the existence of a genuine issue for trial.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005); see also Iowa R. Civ. P. 1.981(5). Speculation is insufficient to create a genuine issue of material fact. Hlubek, 701 N.W.2d at 96.

III. The Contract Claims.

In count I of CTI’s petition, it alleged that Dean Longnecker and Enos breached a contractual nondisclosure agreement dated October 25, 1999, which provided that any information disclosed in the course of the negotiation process would be used solely to evaluate the possible purchase of CTI and would remain confidential. The district court concluded as a matter of law that the October 25, 1999 nondisclosure agreement had been superseded by a January 6, 2000 confidentiality agreement, and we agree. The January 6, 2000 agreement stated: “This Agreement comprises the entire agreement and supersedes all prior understandings and representations (oral or written) between the parties concerning the subject matter of this Agreement.” In fact, Gary Ruble, president of CTI, stated it was his understanding that the January 6, 2000 confidentiality agreement had superseded the October 25, 1999 nondisclosure agreement. The district court properly entered summary judgment on this count.

In count II, CTI contends that Dean Longnecker, Enos, and Three D Industries breached a letter of intent dated January 15, 2001. The district court concluded that Enos had not signed the agreement and that Longnecker signed only in a representative capacity (on behalf of Three D Company, L.L.C.). Further, Three D Industries, L.L.C., the entity sued by CTI, was not a party to the agreement.

We agree with the district court that Enos cannot be held liable for breach of the January 15, 2001 letter of intent because he did not sign it. While Longnecker signed this letter of intent, he did so as a representative of Three D Company, L.L.C. and not in his individual capacity. Of course, “[c]entral to corporate law is the concept a corporation is an entity separate from its owners.” Briggs Transp. Co. v. Starr Sales Co., 262 N.W.2d 805, 809 (Iowa 1978). Because Longnecker entered into the letter of intent only as a representative of Three D Company, L.L.C., he cannot be held personally liable for any breach committed by the corporation.

Finally, the January 15, 2001 letter of intent was signed by Longnecker as a representative of Three D Company, L.L.C. However, CTI did not bring this breach-of-contract claim against Three D Company, L.L.C.; rather, it brought it against Three D Industries, L.L.C. It is true, as CTI points out, that Longnecker and Enos created a number of corporations at different times, referring to them as Three D Holding Company, Three D Industries, L.L.C., Three D Company, and Three D Industries. While that complicates the facts of this case, it does not change our analysis of this issue. Three D Company, L.L.C. and Three D Industries, L.L.C. were created as separate and distinct entities and must be treated as such. Just as individuals cannot be held liable on a contract to which they were not parties, neither can a corporation. The district court appropriately granted Three D Industries’ motion for summary judgment on count II of the petition.

Alternatively, CTI argues we can “pierce the corporal veil” to hold Long-necker and Enos individually liable on the letter of intent because any corporations named were merely their alter egos. The requirements for doing so, however, are substantial:

The burden is on the party seeking to pierce the corporate veil to show the exceptional circumstances required. Factors that would support such a finding include (1) the corporation is under-capitalized; (2) it lacks separate books; (3) its finances are not kept separate from individual finances, or individual obligations are paid by the corporation; (4) the corporation is used to promote fraud or illegality; (5) corporate formalities are not followed; and (6) the corporation is a mere sham.

In re Marriage of Ballstaedt, 606 N.W.2d 345, 349 (Iowa 2000) (citations omitted). CTI showed no evidence to generate a genuine issue of fact to support its piercing-the-veil argument. We affirm the district court’s grant of summary judgment on the plaintiffs breach-of-contract claims.

IV. The Claim of Misappropriation of Trade Secrets.

The principal issue in this case is whether CTI generated a genuine issue of material fact on its claim that the defendants misappropriated CTI’s trade secrets, including information regarding the construction of its machines and general information about their manufacture and sale. CTI contends that Three D, Dean Long-necker, Enos, five former CTI employees, and James Yelton (a former CTI customer) wrongfully obtained CTI’s trade secrets and used them to form a competing business.

A. Legal Principles. Iowa Code chapter 550 (2001) is Iowa’s version of the Uniform Trade Secrets Act. This chapter provides that the owner of a trade secret may enjoin an actual or threatened misappropriation of a trade secret or may request monetary damages for such misappropriation. Iowa Code §§ 550.3(1), 550.4(1). A trade secret is defined as

information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process that is both of the following:
a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use.
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Iowa Code § 550.2(4).

The Restatement (Third) of Unfair Competition (1995) [hereinafter Restatement] is intended to be consistent with the Uniform Trade Secrets Act, such as our Code chapter 550, and we rely on it here. See Restatement § 39 cmt. d. The Restatement provides what we consider to be the appropriate scope of Iowa Code section 550.2(4):

A trade secret can consist of a formula, pattern, compilation of data, computer program, device, method, technique, process, or other form or embodiment of economically valuable information. A trade secret can relate to technical matters such as the composition or design of a product, a method of manufacture, or the know-how necessary to perform a particular operation or service. A trade secret can also relate to other aspects of business operations such as pricing and marketing techniques or the identity and requirements of customers.

Id.

Factors to consider when determining if information is a trade secret include:

“(1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken ... to guard the secrecy of the information; (4) the value of the information [to the business and its competitors]; (5) the amount of effort or money expended ... in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.”

Kendall/Hunt Pub’g Co. v. Rowe, 424 N.W.2d 235, 246 (Iowa 1988) (quoting Basic Chems., Inc. v. Benson, 251 N.W.2d 220, 226 (Iowa 1977) (a common-law case predating Iowa Code chapter 550)).

The value of the information for which protection is sought must be substantial.

A trade secret must be of sufficient value in the operation of a business or other enterprise to provide an actual or potential economic advantage over others who do not possess the information. The advantage, however, need not be great. It is sufficient if the secret provides an advantage that is more than trivial. Although a trade secret can consist of a patentable invention, there is no requirement that the trade secret meet the standard of inventiveness applicable under federal patent law.

Restatement § 39 cmt. e.

A trade secret need not be in writing; any secret acquired through an employee’s job may be the subject of trade-secret protection. Sperry Rand Corp. v. Rothlein, 241 F.Supp. 549, 563 (D.C.Conn.1964) (“[I]t does not matter whether a copy of a Sperry drawing came out in a defendant’s hand or in his head. His duty of fidelity to his employer remains the same.”); accord Ed Nowogroski Ins., Inc. v. Rucker, 137 Wash.2d 427, 971 P.2d 936, 940 (1999). During employment, an employee may acquire two classes of information. First, an employee may obtain information of a general nature simply by being on the job. An employer would have no reasonable expectation that such information would be treated as a trade secret. An employee is free to use or disclose this type of general information. The second class of information is that which the employer intends to keep secret by, for example, physically hiding it from view or, as CTI claims here, by requiring confidentiality. While the first class of information is not entitled to trade-secret protection, the second class may be entitled to it. Compare Restatement § 42 cmt. b (trade secrets), with id. § 42 cmt. d (general information).

Whether an employee is subject to a covenant not to compete is not determinative of whether the information gathered through employment constitutes a trade secret.

As a general rule, an employee who has not signed an agreement not to compete is free, upon leaving employment, to engage in competitive employment. In so doing, the former employee may freely use general knowledge, skills, and experience acquired under his or her former employer. However, the former employee, even in the absence of an enforceable covenant not to compete, remains under a duty not to use or disclose, to the detriment of the former employer, trade secrets acquired in the course of previous employment. Where the former employee seeks to use the trade secrets of the former employer in order to obtain a competitive advantage, then competitive activity can be enjoined or result in an award of damages.

Ed Nowogroski Ins. Co., 971 P.2d at 941-42 (footnote omitted); see Restatement § 42 cmts. b, c.

Additionally, nondisclosure and confidentiality agreements are relevant to determine whether information constitutes a trade secret.

An agreement between the parties that characterizes specific information as a “trade secret” can be an important although not necessarily conclusive factor in determining whether the information qualifies for protection as a trade secret under this Section. As a precaution against disclosure, such an agreement is evidence of the value and secrecy of the information, and can also supply or contribute to the definiteness required in delineating the trade secret. The agreement can also be important in establishing a duty of confidence. However, because of the public interest in preserving access to information that is in the public domain, such an agreement will not ordinarily estop a defendant from contesting the existence of a trade secret.

Restatement § 39 cmt. d (citations omitted).

It is not only the nature of the information itself that is significant; the manner of its acquisition is also significant in determining whether information constitutes a trade secret.

“The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret.” However, the interest protected by this branch of the law is not secrecy as such. “The protection is merely against breach of faith and reprehensible means of learning another’s secret.” Accordingly, “a substantial element of secrecy must exist, so that, except by the use of improper means, there would be difficulty in acquiring the information.”

Clark v. Bunker, 453 F.2d 1006, 1009-10 (9th Cir.1972) (quoting Restatement of Torts § 757 cmt. b (1939)) (emphasis added). In the case of an employee leaving a business with trade secrets, the employer might “find[] itself in the position of a coach, one of whose players has left, playbook in hand, to join the opposing team before the big game.” PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1270 (7th Cir. 1995).

B. Evidence Presented in Resistance to the Motion for Summary Judgment. In this case, CTI contends that its cement volumetric mixer, component parts, manufacturing processes, and supplier and customer information constitute trade secrets. A CTI officer identified numerous processes and design features developed by CTI that were unique, features that CTI had sought to protect by its confidentiality agreements and which it claimed as trade secrets. This evidence is sufficient to generate a fact question regarding the economic value of the information CTI argues is trade-secret protected.

Evidence in the record shows that CTI took steps to keep such information confidential. CTI required its employees to acknowledge receipt of an employee handbook. Included in the handbook were nondisclosure agreements providing:

The protection of confidential business information and trade secrets is vital to the interests and the success of CTI. Such confidential information includes, but is not limited to, the following examples:
*compensation data
*customer lists
*financial information
*marketing strategy
*new materials research
*pending projects and proposals
*proprietary production processes
*research and development strategies
^Technological data
Employees who improperly use or disclose trade secrets or confidential business information will be subject to disciplinary action, up to and including termination of employment and legal action, even if they do not actually benefit from the disclosed information.

In addition, employees were required to sign a “patent” agreement providing, in part:

All inventions, whether patentable or not, developed by employee in the course of or arising out of the performance of his or her duties as an employee, shall be owned by Employer. Employer shall also own any inventions developed by Employee during the period of his or her employment which relate to the products, services, or other business activities of Employer regardless of whether or not such inventions were developed on or off of company time and on or off of company premises.

Confidentiality agreements such as these may constitute reasonable steps to insure secrecy of information, as required by the Uniform Act. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 521 (9th Cir.1993). Further, though the district court found the fact that the employees were not required to sign a noncompete agreement persuasive, we do not. As noted above, the absence of a noncompete agreement is not determinative of the existence of a trade secret.

The defendants argue that information regarding CTI’s volumetric mixer is not a trade secret because it is “readily ascertainable.” This argument is based, in large part, on the concept of reverse engineering. (“ ‘Reverse engineering is the process by which a completed process is systematically broken down into its component parts to discover the properties of the product with the goal of gaining the expertise to reproduce the product.’ ” Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 775 n. 8 (Iowa 1999) (quoting Christianson v. Colt Indus. Operating Corp., 870 F.2d 1292, 1295 n. 4 (7th Cir. 1989))). However, the fact that information may be obtained by lawful means, including reverse engineering, is not necessarily dispositive of the trade-secret issue.

The theoretical ability of others to ascertain the information through proper means does not necessarily preclude protection as a trade secret. Trade secret protection remains available unless the information is readily ascertainable by such means. Thus, if acquisition of the information through an examination of a competitor’s product would be difficult, costly, or time-consuming, the trade secret owner retains protection against an improper acquisition, disclosure, or use....

Restatement § 39 cmt. / (emphasis added).

In CTI’s resistance to the defendants’ motion for summary judgment, it provided a report by Dr. Bruce Johnson, who holds a Ph.D. in mechanical engineering and who has considerable experience in design and development engineering. Dr. Johnson evaluated the defendants’ reverse engineering claim — he inspected the defendants’ prototype machine; he inspected CTI’s, as well as the defendants’, manufacturing facilities; he inspected the drawings of both CTI and the defendants; and he reviewed witness depositions.

Dr. Johnson stated that a representative of the defendant company told him they did not start construction on their machine until November 2001, and the defendants exhibited their fully functioning machine at a trade show in March 2002. Dr. Johnson concluded:

It would be impossible for anyone, even a trained and experienced engineer, to complete the design process of a complex piece of machinery such as involved in this instance, to the point of having a perfectly functioning prototype, in less than six months without having at his disposal a vast amount of information. In the context of this case, it is my opinion that it would have been impossible for the Defendants collectively to complete the process without access to the proprietary information of Cemen Tech, regardless of whether that information was in written or other form.

Dr. Johnson’s report is strong evidence that, though CTI’s machine and component parts could be reverse engineered, the difficulty in doing so may not defeat CTI’s trade-secret claim.

Even though CTI conceded that the defendants, if given sufficient time, could produce a machine similar to CTI’s based on reverse engineering, a fact finder could reasonably conclude that the delay in production of the machine would give CTI a temporal advantage. Even if the period of that advantage would be short, this would not deny trade-secret protection to CTI because neither Iowa Code section 550.2(4) nor section 1(4) of the Uniform Trade Secrets Act “include[s] any requirement relating to the duration of the information’s economic value.” Restatement § 39 cmt. d. Presumably, the extent of this temporal advantage would be reflected in any damage award.

Finally, the defendants’ means of obtaining the information at issue lends credence to CTI’s claim that the information was intended to be confidential. Generally,

[ijnformation that is readily ascertainable by proper means is not protectable as a trade secret, and the acquisition of such information even by improper means is therefore not actionable.... However, the accessibility of information, and hence its status as a trade secret, is evaluated in light of the difficulty and cost of acquiring the information by proper means. In some circumstances the actor’s decision to employ improper means of acquisition is itself evidence that the information is not readily ascertainable through proper means and is thus protectable as a trade. secret. Because of the public interest in deterring the acquisition of information by improper means, doubts regarding the status of information as a trade secret are likely to be resolved in favor of protection when the means of acquisition are clearly improper.

Restatement § 43 cmt. d (citations omitted).

A jury could reasonably find that the employee-defendants took advantage of their positions at CTI to obtain proprietary information that was then used for Three D’s benefit. Ail employee-defendants signed confidentiality and patent agreements in the course of their employment with CTI, indicating their understanding that CTI meant for information gathered during the course of employment to remain confidential. Yet, a jury could find that defendants Mark Dorman and Daniel Pothast used the knowledge and skill obtained through their employment with CTI to develop products for Three D Industries that were similar to those they produced for CTI. CTI’s employment of Scott Longnecker (Dean Longnecker’s son), at the apparent request of Dean Longnecker, could also suggest an intent to obtain information “from the inside.” Additionally, a jury could find that Dan Jones and Brad Luhrs gave Three D Industries information they gathered from CTI in the course of strategy and production meetings, including new product ideas, CTI’s engineering data, computations, calculations, and certain innovations. In fact, evidence in the record suggests that Luhrs and Jones copied files from a CTI computer onto CDs that were not returned to CTI upon their resignations. The actions of these defendants could reasonably be considered to be improper and, therefore, “evidence that the information is not readily ascertainable through proper means and ... thus protectable as a trade secret.” Restatement § 43 cmt. d. Viewing the evidence in the light most favorable to CTI, we believe there was sufficient evidence to generate a fact question on the trade-secret issue with respect to the employee-defendants.

We also believe CTI presented sufficient evidence to generate a fact question on the trade-secret issue with respect to Three D, Longnecker, and Enos. A jury could find that these defendants improperly used their positions as potential buyers to obtain CTI’s proprietary information for their own benefit. There is evidence in the record that the information disclosed during the due-diligence process was not returned to CTI, and there is evidence that these defendants encouraged the employee-defendants to jump ship to join Three D. A fact finder could infer from the evidence that these defendants induced or knowingly accepted trade secrets from CTI. Under the Restatement,

a person who obtains a trade secret by inducing or knowingly accepting a disclosure from a third person who has acquired the secret by improper means, or who induces or knowingly accepts a disclosure from a third person that is in breach of a duty of confidence owed by the third person to the trade secret owner, also acquires the secret by improper means.

Id. § 43 cmt. c.

Finally, we believe CTI has failed to generate a fact question on the trade-secret issue with respect to defendant James Yelton. Yelton was a former CTI customer, but was never an employee, so he was never bound by a handbook or confidentiality agreement. While there is some evidence Yelton became “a part of’ Three D, there is no evidence he encouraged CTI employees to obtain trade secrets. In fact, the evidence presented shows the extent of Yelton’s involvement in the development of Three D’s machine was apparently to furnish photos of CTI’s product obtained by him when he was a customer of CTI. This evidence is simply not sufficient to generate a fact question as to Yelton on the plaintiffs trade-secret claim, and the court’s grant of summary judgment as to him was proper.

In summary, we conclude it was error to enter summary judgment on CTI’s trade-secret claim, except as to James Yelton. We remand for further proceedings on this issue.

V. The Unfair Competition Claim.

In count V of its petition, CTI alleged the defendants engaged in unfair competition by “palm[ing] off the products and services sold by them to the public as derivatives of Cemen Tech, which ... caused a likelihood or probability of confusion as to the source of Defendants’ products and services.” The district court concluded that a genuine issue of material fact existed as to whether Three D, Longnecker, Enos, and the employee defendants engaged in unfair competition by palming off CTI’s products and services as their own. However, the district court ruled that CTI could not pursue a claim of reverse palming off because it had not pled that theory in its petition.

“Palming off” occurs when a defendant sells its product under the plaintiffs name. Walker Mfg., Inc. v. Hoffmann, Inc., 261 F.Supp.2d 1054, 1069 (N.D.Iowa 2003). On the other hand, “reverse palming off’ occurs when a defendant sells the plaintiffs product under the defendant’s name. Id. Both are legal theories a plaintiff may assert to prove unfair competition. Basic Chems., Inc., 251 N.W.2d at 231-32.

The court granted Yelton’s motion for summary judgment on the palming-off claim, concluding that CTI failed to present any evidence that Yelton was an owner or employee of Three D or that he participated in the engineering, design, or manufacture of the Three D machine. However, any shortcomings in the evidence regarding Yelton’s status as an owner or employee do not preclude his liability for improper actions in the representations of the machine to potential buyers. Viewing the evidence in the light most favorable to CTI, we believe a jury could find that Yelton was involved in the marketing of Three D’s machine and made representations about the relative qualities of the competing machines. We believe it was error for the- trial court to sustain Yelton’s summary-judgment motion on this issue.

On appeal, CTI contends the district court erred in refusing to allow it to argue reverse palming off as a basis for its unfair-competition claim. Under our rules of civil procedure, a party need not conform to technical forms of pleading. Rather, “[e]ach averment of a pleading shall be simple, concise, and direct.” Iowa R. Civ. P. 1.402(2)(a). In Iowa, “notice pleading” is all that is required. Under notice pleading, a petition need only give notice of the incident giving rise to the claim and the general nature of the claim. Roush v. Mahaska State Bank, 605 N.W.2d 6, 10 (Iowa 2000). A plaintiff is not required to set forth specific legal theories for recovery. Id. at 9.

We conclude the district court erred in refusing to allow CTI to pursue its claim of reverse palming off. CTI’s claim in general was that the defendants wrongfully marketed their machine in unfair competition with CTI by fraudulently representing the pedigree of the machines. CTI was not required to identify a particular variety of fraud-palming off or reverse palming off. If CTI’s evidence at trial supports both theories, presumably it would be allowed to amend its pleadings to conform to the proof.

We reverse the district court’s ruling on this issue insofar as it sustained Yelton’s motion for summary judgment and the court’s refusal to allow a claim of reverse palming off.

VI. The Claim of Breach of Fiduciary Duty.

In count VI of its petition, CTI contends the defendants breached their fiduciary duty to CTI. The district court concluded that Three D Industries, Longnecker, and Enos were not in a fiduciary relationship with CTI because their relationship was based on the potential purchase of CTI, and they were acting solely for their own benefit, not that of CTI. The district court further concluded that Yelton was not in a fiduciary relationship with CTI because there was no evidence that Yelton was anything more than a customer and a salesman for CTI’s equipment. We agree with the trial court’s conclusions as to any fiduciary relationship between CTI and Three D Industries, Longnecker, Enos, or Yelton.

The district court also concluded that the employee-defendants did not have a fiduciary relationship with CTI because CTI failed to present any evidence suggesting that the employee-defendants were anything more than traditional employees. On appeal, CTI contends a jury could reasonably find that the employee-defendants owed a duty of loyalty and a fiduciary duty to CTI arising out of the employee-defendants’ representation of CTI to potential customers and suppliers, as well as the trust CTI placed in these employee-defendants to maintain the confidentiality of its proprietary information.

It is true, as the district court noted, that the question of whether a fiduciary relationship exists in a given case may, in some cases, be decided by the court in a summary-judgment proceeding. See, e.g., Weltzin v. Cobank, ACB, 633 N.W.2d 290, 292 (Iowa 2001). We do not believe, however, that this is such a case. In Kurth v. Van Horn, 380 N.W.2d 693 (Iowa 1986), we recognized that “fiduciary duty” is

“[a] very broad term embracing both technical fiduciary relations and those informal relations which exist wherever one man trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. A ‘fiduciary relation’ arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Such relationship exists when there is a reposing of faith, confidence and trust, and the placing of reliance by one upon the judgment and advice of the other.”

Kurth, 380 N.W.2d at 695-96 (quoting Black’s Law Dictionary 564 (5th ed. 1979) (citations omitted)).

The present case is distinguishable from both Kurth and Weltzin because here the employees executed confidentiality and nondisclosure agreements. A jury could find that the relationship between CTI and the employee-defendants is, therefore, one based “on trust or confidence reposed by one person in the integrity and fidelity of another.” Kurth, 380 N.W.2d at 695.

We believe the question of whether a fiduciary relationship has been established turns on the facts of the case and does not lend itself to disposition by summary judgment. We therefore reverse the judgment of the district court regarding the claim of breach of fiduciary duty on the part of the employee-defendants and remand on that issue.

VII. Summary.

We affirm the district court’s grant of summary judgment as to the plaintiffs contract claims under counts I, II, and III. We also affirm the district court’s grant of summary judgment in favor of defendant Yelton on the trade-secret issue raised in count IV. We reverse the summary judgment under count IV as to all other defendants. We affirm the district court’s denial of summary judgment on count V, the unfair-competition claim, as to defendants Three D, Longnecker, and Enos, as well as the employee-defendants. We reverse the summary judgment entered on behalf of defendant Yelton under count Y and reverse the court’s ruling that CTI could not pursue a claim of reverse palming off. We affirm the summary judgment under count VI, breach of fiduciary duty, as to Three D, Longnecker, Enos, and Yelton, but reverse it as to all other defendants.

We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except APPEL, J., who takes no part.


author: WIGGINS, Justice.

text:
    In the Interest of K.B., Minor Child, E.A.B., Grandmother, Appellant.
    No. 08-0395.
    Supreme Court of Iowa.
    July 18, 2008.
    Cheryl Fullenkamp, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael J. Walton, County Attorney, and Jay Sommers, Assistant County Attorney, for appellee State.
    Patricia Rolfstad, Davenport, for mother.
    Stephen Newport of Newport & Newport, P.L.C., for minor child.
   WIGGINS, Justice.

The issue we must decide is whether the juvenile court had the authority to change custody of K.B. from her maternal grandmother, E.A.B., to her paternal grandparents at a scheduled review hearing of a dispositional order in a ehild-in-need-of-assistance proceeding. E.A.B. appealed the change of custody. We transferred the case to the court of appeals, which affirmed the district court. In its decision the court of appeals found E.A.B. consented to a modification hearing on a change of custody under Iowa Code section 232.93 (2007), based on its belief that the record supported the conclusion that all of the parties knew of the proposed change of custody in advance of the hearing.

E.A.B. requested, and we granted further review of the court of appeals decision. In CINA proceedings, we review the evidence de novo. In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). Based on our de novo review of the record, we find E.A.B. did not consent to a modification hearing on a change of custody. Therefore, we vacate the court of appeals decision and remand the case back to the juvenile court for further proceedings.

I. Facts.

On our de novo review we find the facts as follows. E.A.B. was the legal guardian of K.B. On May 23, 2007, the State filed a petition alleging KB. was a child in need of assistance because she was being sexually abused by her maternal grandfather. When the State filed the petition, KB.’s mother was incarcerated. Her father is deceased. On May 24 the court appointed a guardian ad litem for K.B. and issued an order setting a prehearing conference for June 6.

On May 29 attorney Kyle Williamson entered an appearance on behalf of E.A.B. On the same day, E.A.B. filed a consent form in which she expressed her wish to stipulate K.B. as a child in need of assistance. On July 17 the court adjudicated K.B. as a child in need of assistance pursuant to section 232.2(6), subsections (c)(2) and (d), and set a dispositional hearing for August 27. The court ordered K.B. to remain in the custody of E.A.B. pending the dispositional hearing.

Subsequent to the dispositional hearing, the court entered an order placing K.B. with E.A.B. subject to the supervision of the department of human services. The court, in its dispositional order, set a review hearing for February 20, 2008. The court ordered the department to “submit a written report to the court on the progress of said child and placement goals and an updated case plan, both of which [were to] be filed with the court at least ten days prior to hearing.”

In the fall of 2007 Williamson was appointed to a district associate judgeship. Williamson never filed a formal withdrawal as E.A.B.’s attorney. No other attorney appeared on E.A.B.’s behalf.

The department’s written report, required by the court for the February 20, 2008, hearing, is dated February 17. It recommended KB.’s custody be transferred to her paternal grandparents. A “cc” at the bottom of the report indicates the department sent a copy of the report to E.A.B. There is no certificate of service indicating how the department served E.A.B. with a copy of the report. The department did not send Williamson a copy of the report, indicating the court records must have reflected Williamson no longer represented E.A.B., despite his failure to withdraw from the case. The department filed the report with the court on February 20, the day of the review hearing.

At the hearing E.A.B. was not represented by counsel. The county attorney moved to admit the State’s exhibits and the court asked each attorney individually whether he or she had an objection to the exhibits. The court failed to ask E.A.B. if she had any objections. The court admitted the exhibits. Next the county attorney acknowledged the hearing was noticed as a review hearing, but asked the court to consider changing the custody of K.B. to her paternal grandparents. When the court asked E.A.B. about this request, she replied, “I don’t agree, and I think K.B.’s been through enough, and she needs to stay home with me.” Without responding to E.A.B.’s statement or allowing further evidence, the court changed custody of KB. from E.A.B. to the paternal grandparents.

II. Analysis.

The February 20 hearing was a review hearing held pursuant to section 232.102(9). The language of this section relevant to this appeal states:

The court shall hold a periodic disposi-tional review hearing for each child in placement pursuant to this section in order to determine whether the child should be returned home, an extension of the placement should be made, a permanency hearing should be held, or a termination of the parent-child relationship proceeding should be instituted.

Iowa Code § 232.102(9). We have previously interpreted this language to give the juvenile court three alternative dispositions at a review hearing. See In re Blackledge, 304 N.W.2d 209, 213 (Iowa 1981) (interpreting section 232.102(6) (1979), a predecessor to section 232.102(9) that stated, “[T]he court shall hold a hearing and review the placement in order to determine whether the child should be returned home, an extension of the placement should be made, or a termination of the parent-child relationship proceeding should be instituted”). We have construed this provision of the Code narrowly as authorizing only three specific actions for the juvenile court to take at a review hearing: return the child to her home, extend the current placement, or commence termination proceedings. Id. A juvenile court is not authorized to change custody at a review hearing. In re Leehey, 317 N.W.2d 513, 515 (Iowa Ct.App.1982).

The Code does, however, allow a person to give the court his or her consent to proceed to hear and determine issues not contained in an application or pleading. Iowa Code § 232.93. Thus, if the court wanted to change custody of K.B. at the review hearing, E.A.B. needed to have given her consent to allow the court to consider a change in custody.

The court of appeals based its decision that E.A.B. consented to the modification hearing by finding E.A.B. received the department’s report recommending a change of custody before the hearing; therefore, she knew the hearing would involve a proposed change of K.B.’s custody. E.A.B. claims she did not see this report before she attended the review hearing.

There is no evidence the report was hand delivered to E.A.B. at any time prior to the hearing. Therefore, we assume the department mailed the report to E.A.B. The report is dated Sunday, February 17. The earliest the department could have mailed the report was on Tuesday, February 19, because Monday, February 18, was Washington’s Birthday (President’s Day), a postal holiday. See 2008 Postal Holiday, http://www.usps.com /communications/newsroom/ealendar/federalholi-days.htm (last visited July 17, 2008). Under these circumstances we disagree with the court of appeals finding that E.A.B. saw the report before the hearing. Had the department complied with the court order requiring it to file the report ten days prior to the hearing, we would have more confidence that E.A.B. received the report prior to the hearing.

We do not believe E.A.B. received the report prior to the hearing. Thus, she was unaware of the State’s position that the court was going to consider a change of K.B.’s custody at the hearing. When the county attorney moved to admit the exhibits, including the department’s report, the court asked all the other participants individually whether they had any objection to the exhibits. For some unknown reason the court did not inquire whether E.A.B. had any objections. When the county attorney asked the court to conduct a modification of custody, the court did ask E.A.B her position. E.A.B. replied, “I don’t agree, and I think KB.’s been through enough, and she needs to stay home with me.” The “I don’t agree” part of her statement indicates E.A.B. did not want to proceed on that day with a hearing on the proposed change of custody. Without asking whether E.A.B. had any evidence to present, the court changed custody.

Our de novo review of the record finds no support for a finding that E.A.B. gave her consent to an adjudication of the proposed change of custody of K.B. E.A.B.’s lack of knowledge of the purpose of the hearing, her minimal participation in the proceeding, and her statement at the hearing leads us to conclude she did not consent to change the review hearing to a modification hearing. Accordingly, the juvenile court lacked the authority to change custody of K.B. to her paternal grandparents.

III. Disposition.

Because the juvenile court lacked the authority to proceed with a modification of custody at the review hearing, we reverse the order changing K.B.’s custody and remand this case to the juvenile court for further proceedings. Before proceeding further, the juvenile court should ensure that E.A.B.’s right to counsel, as set forth in section 232.89, is not violated. See In Interest of Loeffelholz, 162 N.W.2d 415, 426-27 (Iowa 1968) (discussing a person’s statutory right to counsel).

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT DECISION REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

All Justices concur except BAKER, J., who takes no part.