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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sands v Living Word Fellowship et al (09/14/2001) sp-5471

Sands v Living Word Fellowship et al (09/14/2001) sp-5471

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

WILLIAM DAYE SANDS,           )
                              )    Supreme Court No. S-9031
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-97-0931 CI
                              )
LIVING WORD FELLOWSHIP, an    )    O P I N I O N
Alaska Corporation, ALGER     )
MORRIS, TED HETHCOTE, GARY    )    [No. 5471 - September 14, 2001]
OATHOUT, DANIEL HEJL and      )
LISBETH HEJL,                 )
                              )
             Appellees.       )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                        Eric Smith, Judge.


          Appearances:  David H. Shoup and Richard W.
          Maki, Anchorage, for Appellant.  James M.
Powell and Teena J. Williams, Anchorage, for Appellees Living Word
Fellowship, Alger Morris, Ted Hethcote, and Gary Oathout.  Matthew
K. Peterson and Scott Hendricks Leuning, Clapp, Peterson & Stowers,
LLC, Anchorage, for Appellees Daniel and Lisbeth Hejl.


          Before:  Matthews, Chief Justice, Fabe, and
          Carpeneti, Justices.  [Eastaugh and Bryner,
Justices, not participating.]


          FABE, Justice.


I.   INTRODUCTION
          Will Sands shot himself after suffering emotional
distress allegedly caused by the actions of Living Word Fellowship,
a church, and two of its members, Daniel and Lisbeth Hejl.  Sands
brought suit in superior court against Living Word and the Hejls,
alleging three causes of action: (1) negligent infliction of
emotional distress, (2) intentional infliction of emotional
distress, and (3) abuse of process.  The superior court dismissed
all of Sands's claims as to both defendants, holding that the First
Amendment to the U.S. Constitution bars Sands's emotional distress
and negligence claims, and that Sands lacked standing to bring the
abuse of process claim.  For the reasons stated below, we affirm
the dismissal of all claims against Living Word, and the abuse of
process claim against the Hejls.  We reverse the dismissal of the
other claims against the Hejls.
II.  FACTS AND PROCEEDINGS
          Because this is an appeal of a motion to dismiss, we
assume that Sands's factual allegations, which are set out in this
section, are true. [Fn. 1] 
          In 1993 Will Sands became friends with Jodi Hejl, the
daughter of defendant Lisbeth Hejl and stepdaughter of defendant
Daniel Hejl.  Will Sands and Jodi Hejl, both in high school at the
time, started dating shortly thereafter.
          During the summer of 1993, Jodi Hejl asked her mother for
permission to attend Sands's church, Wasilla Ministries, where
Will's mother, Marion Sands, is the pastor.  That summer Jodi Hejl
attended Wasilla Ministries about six times with Will, and she also
continued to attend her own family's church, Living Word
Fellowship.
          In the fall of 1993, Jodi Hejl informed Will's father,
William James Sands, of her desire to run away from home.  She ran
away from home in November 1993.  Jodi Hejl did this at least
partly because her stepfather was sexually abusing her.
          Jodi Hejl's parents, Daniel and Lisbeth Hejl, approached
the elders of their church, Living Word, and alleged that Wasilla
Ministries was a "cult." They also accused Will Sands of being a
"cult recruiter"for Wasilla Ministries.  Subsequently, the Living
Word elders contacted the Sands family to address certain
"doctrinal differences"between their churches.  These doctrinal
differences included their views on parental authority and biblical
interpretation.  Living Word elder Ted Hethcote asked the Wasilla
Ministries community to "repent"for its beliefs, but the Wasilla
Ministries community "declined"to do so.
          Living Word and its elders then decided to "warn the
Christian community"about the "dangerous practices"that Wasilla
Ministries allegedly practiced.  Living Word and its elders sought
to "disfellow"Wasilla Ministries and shun its members; the Living
Word elders instructed their congregants, as well as eight other
churches, to shun Wasilla Ministries members.
          The Hejls responded to these events by filing a lawsuit
against Wasilla Ministries and several of its members, including
William James Sands, Will Sands's father, and Marion Sands.  In
1994 the Hejls obtained an injunction from the superior court that
prohibited William James Sands, Marion Sands, and other Wasilla
Ministries members from further contact with the Hejl family. [Fn.
2] Eventually, both the Anchorage Daily News and the Frontiersman
newspapers printed articles containing the Hejls' allegations
against Wasilla Ministries.
          These events all caused Will Sands great emotional
distress.  Will also felt responsible for the lawsuit against his
church because of his relationship to Jodi Hejl.  In October 1996
Will shot himself in the head in an attempt to kill himself. 
Although he survived this attempt, he is now paralyzed from the
chest down.
          On May 2, 1997, Will Sands commenced an action in the
United States District Court for the District of Alaska, alleging
five causes of action, including one federal civil rights claim
based on 28 U.S.C. sec. 1331 and 28 U.S.C. sec. 1343.  The federal
district court dismissed the single federal claim in October 1997
for failure to state a claim upon which relief could be granted.
Will Sands filed this state court action with the superior court in
October 1997, omitting his federal claim.  In his complaint against
Living Word and its elders [Fn. 3] (collectively, Living Word) and
the Hejls, Sands alleges (1) negligent infliction of emotional
distress, (2) intentional infliction of emotional distress, and (3)
abuse of process.  The first two claims allege that the defendants
acted negligently and intentionally to harm William James Sands and
that they violated their duty of care.  The abuse of process claim
alleges that the Hejls' 1994 lawsuit was an improper use of the
judicial process.
          The Hejls moved to dismiss the action in the superior
court under Alaska Civil Rule 12(b)(6), and Living Word joined the
motion.  The superior court granted the motion to dismiss all
claims and entered final judgment in September 1998.  Will Sands
appeals that decision.
III. STANDARD OF REVIEW
          The superior court dismissed all of Will Sands's claims
under Rule 12(b)(6), for failure to state a claim upon which relief
can be granted.  We review this ruling de novo, and we presume that
all factual allegations made in the complaint are true. [Fn. 4]
          For a complaint to survive a Rule 12(b)(6) motion, the
complaint need only allege a set of facts consistent with and
appropriate to some enforceable cause of action. [Fn. 5]  A
complaint should be deemed sufficient, and a motion to dismiss
denied, if evidence may be introduced that will sustain a grant of
relief to the plaintiff. [Fn. 6]
IV.  DISCUSSION
     A.   The Superior Court Properly Dismissed Sands's Claims
Against Living Word and the Abuse of Process Claim Against the
Hejls.

          1.   Sands's negligent and intentional infliction of
emotional distress claims against Living Word are barred by the
free exercise clauses of the U.S. and Alaska Constitutions.

          Sands claims that Living Word negligently and
intentionally inflicted emotional distress upon him and breached
its duty of care to him by shunning members of his church, calling
his church a "cult,"and referring to him as a "cult recruiter."
The superior court concluded that the First Amendment to the U.S.
Constitution protects Living Word's behavior.  Therefore, the
superior court dismissed Sands's negligent and intentional
infliction of emotional distress claims against Living Word.
          If conduct is protected by the free exercise clause of
the First Amendment to the U.S. Constitution and by article I,
section 4 of the Alaska Constitution, a tort action based on that
conduct is barred. [Fn. 7]  In Frank v. State, [Fn. 8] we announced
the relevant standard for whether conduct is protected by the free
exercise clauses in the First Amendment to the U.S. Constitution
and article I, section 4 of the Alaska Constitution.  In Frank, we
stated that free exercise protection extends to conduct that
satisfies a two-part test.  First, conduct is protected only if
three threshold requirements are satisfied:  there must be a
religion involved, the conduct must be religiously based, and the
claimant must be sincere. [Fn. 9]  Second, the conduct must not
"pose some substantial threat to public safety, peace or order,"
[Fn. 10] and there must be no "competing governmental interests
that are of the highest order and [are] not otherwise served."[Fn.
11]
          The behavior that is the basis for Will Sands's emotional
distress and negligence claims is protected religious activity
under Frank.  Sands alleges that Living Word elders instructed its
church's members, as well as members of eight other churches, to
"shun"and "disfellow"Wasilla Ministries members from the
Christian community.  As for the first threshold Frank requirement,
the facts alleged by Sands show that religion was involved, the
"shunning"was religiously based, and Living Word and its elders
were sincere.  As Sands concedes in his brief, the shunning was
undertaken "to force [Wasilla Ministries and its members] to
renounce and change their religious beliefs." Also, as other
courts have noted, "[s]hunning purportedly has its roots in early
Christianity and various religious groups in our country engage in
the practice."[Fn. 12]  And shunning is religiously based because
it is "deeply rooted in a religious belief."[Fn. 13]  The shunning
alleged in Sands's complaint involved and was motivated by
religion.  Also, there is no allegation in the complaint that
Living Word's conduct was not "sincere." Therefore, Living Word's
"shunning"behavior satisfies the first Frank requirement.
          At least one other court has held that similar "shunning"
behavior involves religion and is religiously based.  In Paul v.
Watchtower Bible & Tract Society, [Fn. 14] a disassociated member
of the Jehovah's Witnesses brought an action alleging various torts
arising from "shunning."[Fn. 15]  The Ninth Circuit held that the
religious "shunning"behavior in Paul was protected by the First
Amendment because imposing tort liability would have the same
effect as a prohibition on such behavior and would directly
restrict the free exercise of religion:
          [S]hunning is an actual practice of the Church
itself, and the burden of tort damages is direct.  Permitting
prosecution of a cause of action in tort, while not criminalizing
the conduct at issue, would make shunning an "unlawful act". 
Imposing tort liability for shunning on the Church or its members
would in the long run have the same effect as prohibiting the
practice and would compel the Church to abandon part of its
religious teachings. . . .  The Church and its members would risk
substantial damages every time a former Church member was shunned. 
In sum, a state tort law prohibition against shunning would
directly restrict the free exercise of the Jehovah's Witnesses'
religious faith.[ [Fn. 16]]

          The "shunning"behavior alleged by Sands also satisfies
the second requirement under Frank.  Living Word's alleged
"shunning"does not pose "some substantial threat to public safety,
peace or order."[Fn. 17]  The harm alleged by Sands is emotional
harm to Will Sands, and as such is not a threat to the public. [Fn.
18]  Sands does not allege that Living Word attempted to discipline
or control any member of the public; rather, the Living Word
community simply attempted to disassociate itself from Wasilla
Ministries and its community. [Fn. 19]
          Therefore, because the free exercise clauses of the First
Amendment to the U.S. Constitution and article I, section 4 of the
Alaska Constitution protect the alleged "shunning"as a religious
activity, Sands's emotional and negligence claims are barred.  The
superior court properly dismissed these claims against Living Word.
          2.   If Sands's complaint can be construed to contain a
claim against Living Word for defamation, such a claim is also
barred by the First Amendment.

          Sands does not explicitly assert a defamation claim in
his complaint; however, he does claim that the defendants made
"false accusations"against Wasilla Ministries -- specifically,
accusations that Wasilla Ministries was a "cult"and that Will
Sands was a "cult recruiter." These allegations could be construed
as a claim for defamation.
          However, even if Sands's complaint can be read to contain
a claim for defamation, that claim is also barred by the First
Amendment to the U.S. Constitution.  The First Amendment bars
actions for defamation where the allegedly defamatory statements
are expressions of ideas and "cannot reasonably be interpreted as
stating actual facts about an individual."[Fn. 20]  If the context
demonstrates to the audience that the speaker is not purporting to
state or imply actual, known facts, then the speech is protected by
the First Amendment. [Fn. 21]
          Living Word's allegedly defamatory statements in this
case -- that Wasilla Ministries is a "cult"and that Sands is a
"cult recruiter"-- are pronouncements of religious belief and
opinion.  Because these are not factual statements capable of being
proven true or false, they are not actionable as a basis in a
defamation claim. [Fn. 22]  To ascertain whether a statement is
factual, courts consider "the type of language used, the meaning of
the statement in context, whether the statement is verifiable, and
the broader social circumstances in which the statement was made."
[Fn. 23]  It is not factually verifiable whether a certain church
is a "cult"or whether church members are "cult recruiters."
Instead, these are statements of religious belief and opinion. [Fn.
24]  Therefore, if Sands's complaint could be construed to contain
a cause of action for defamation, this cause of action is not
actionable under the First Amendment to the U.S. Constitution.
          3.   Sands's abuse of process claim against Living Word
and the Hejls was properly dismissed.

          In addition to his emotional distress and negligence
claims, Sands also brought an abuse of process claim against Living
Word and the Hejls.  Sands based this claim on the 1994 lawsuit
brought by the Hejls, which resulted in the November 7, 1994
injunction against Wasilla Ministries.  Sands claims that this suit
was an abuse of process because the Hejls filed their 1994 lawsuit
"for the improper purposes of humiliating and ostracizing Sands
into submission." The superior court determined that because he
was not a party to that suit and was not covered by the injunction,
Will Sands lacked standing to sue for abuse of process.
          However, Sands did have standing to bring his abuse of
process claim against the Hejls because the 1994 lawsuit that was
the basis for the claim led to an injunction that enjoined his
conduct.  The injunction enjoined the conduct of Sands's parents
and Wasilla Ministries and their "agents, servants . . . and those
persons in active concert or participation with [them]."
Therefore, the injunction covered Will Sands by prohibiting him
from having contact with the Hejls.
          Nevertheless, we affirm the decision of the superior
court to dismiss the abuse of process claim against Living Word and
the Hejls.  Even though Will Sands had standing, he failed to state
a claim for abuse of process.  In order to state a claim for abuse
of process, Sands was required to state facts sufficient to
establish that Living Word and the Hejls had both an ulterior
purpose and that they committed a "willful act in the use of the
process not proper in the regular conduct of the proceeding."[Fn.
25]  With respect to this latter requirement, Sands alleges that
Living Word and the Hejls performed the following willful acts:
they coerced Jodi Hejl to sign affidavits in support of the 1994
lawsuit, and they publicized the complaint and other documents
filed in the case.
          However, this allegation is not sufficient to state a
claim for abuse of process.  The "willful act"requirement requires
some additional act separate from the filing of the suit.  As we
stated in Hayes v. A.J. Associates, Inc., "[m]erely filing a suit,
even for an improper purpose, is not sufficient for an abuse of
process action."[Fn. 26]  That is because a claim for abuse of
process is a claim that the defendant misused process to attain
some separate ulterior purpose independent from the process -- for
example, to extort the plaintiff and force him to take some action
by the use of the process as a threat.  The Restatement (Second) of
Torts observes that "[t]he usual case of abuse of process is one of
some form of extortion, using the process to put pressure upon the
other to compel him to pay a different debt or to take some other
action or refrain from it."[Fn. 27]
          We have noted in the past that one example of the
required willful act could include arrest and confinement to
intimidate the plaintiff; [Fn. 28] other jurisdictions have
similarly held that the required willful acts might include an
offer to discontinue a proceeding in return for the payment of
money; [Fn. 29] or filing a lien to force the plaintiff to pay off
some other unrelated debt. [Fn. 30]
          Sands alleges that the process was (1) improperly
initiated through false affidavits and (2) improperly publicized by
Living Word and the Hejls.  Neither of these acts is sufficient to
qualify as the required "willful acts." Any improper publication
of the 1994 suit does not lead to a viable claim for abuse of
process.  The publicization alleged by Sands merely made available
to the public allegations and documents that were matters of public
record anyway, since they were part of a lawsuit not filed under
seal.  These acts did not constitute extortion or coercion. 
Moreover, if Sands was forced to rely on improper initiation of the
1994 lawsuit, through the allegedly false affidavits, the abuse of
process claim would be barred by the statute of limitations because
Sands did not file suit until 1997. [Fn. 31]  Therefore, Sands has
failed to state a claim for abuse of process against Living Word
and the Hejls and this claim was properly dismissed by the superior
court. [Fn. 32]
     B.   The Superior Court Erred in Dismissing Sands's Negligent
and Intentional Infliction of Emotional Distress Claims Against the
Hejls.

          Sands claims that Living Word and the Hejls negligently
and intentionally inflicted emotional distress upon him and
breached their duty of care to him.  The superior court did not
distinguish between claims against the Hejls and Living Word, and
concluded that the activities of both Living Word and the Hejls
were protected by the First Amendment to the U.S. Constitution.
          Yet, Sands's allegations against the Hejls are based on
conduct that is not protected under the First Amendment to the U.S.
Constitution or by article I, section 4 of the Alaska Constitution. 
Sands's claim against the Hejls differs from his claim against
Living Word.  Sands alleges that the Hejls, in addition to shunning
Sands and Wasilla Ministries, conspired against him by filing the
1994 lawsuit, coercing Jodi Hejl "into signing false affidavits in
support of their lawsuit,"and disseminating their 1994 complaint
to unconnected third parties.  In addition, Sands alleges that the
Hejls acted at least in part without a religious motivation.  He
alleges that the Hejls acted "[i]n order to control Jodi and
suppress her claims of abuse."[Fn. 33]  As noted earlier, conduct
is only protected under the free exercise clause if religion is
involved, the conduct is religiously based, and the claimant is
sincere. [Fn. 34]  The Hejls' conduct was allegedly motivated by
the desire to suppress Jodi Hejl's allegations of sexual abuse by
her stepfather, and is therefore not religiously based.  The
negligent and intentional infliction of emotional distress claims
based on this conduct are therefore not barred by the First
Amendment to the U.S. Constitution or article I, section 4 of the
Alaska Constitution.  The superior court erred when it dismissed
these claims. [Fn. 35]
V.   CONCLUSION
          Because Will Sands's negligent and intentional infliction
of emotional distress claims against Living Word are barred by the
free exercise clauses of the U.S. and Alaska Constitutions, and
because there is no enforceable abuse of process claim against
Living Word, we AFFIRM the superior court's dismissal of all claims
against Living Word.  Because Sands failed to state a claim for
abuse of process against the Hejls, we AFFIRM the superior court's
dismissal of the abuse of process claim against the Hejls. 
However, because the free exercise clauses of the U.S. and Alaska
Constitutions do not bar Will Sands's negligent and intentional
infliction of emotional distress claims against the Hejls, we
REVERSE the superior court's dismissal of these claims against the
Hejls.


                            FOOTNOTES


Footnote 1:

     See Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999).


Footnote 2:

     Specifically, the injunction prohibited contact between Jodi
Hejl and the following persons: Marion Sands, William James Sands,
Lynn Chadwell, Mark Chadwell, Marie Miller, Brad Miller, Sandy
Bean, Chris Murphy, Judy Otto, Wasilla Ministries, Inc., and its
officers, agents, servants, employees, attorneys, and those persons
in active concert or participation with Wasilla Ministries.


Footnote 3:

     Sands filed the complaint against Living Word and some of its
elders, including Alger Morris, an elder and pastor of Living Word,
and Ted Hethcote and Gary Oathout.


Footnote 4:

     See Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999).


Footnote 5:

     See Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 128 (Alaska
2000).


Footnote 6:

     See id.


Footnote 7:

     See Paul v. Watchtower Bible & Tract Soc'y, 819 F.2d 875, 880
(9th Cir. 1987).


Footnote 8:

     604 P.2d 1068 (Alaska 1979).


Footnote 9:

     Id. at 1071.


Footnote 10:

     Id. at 1070.


Footnote 11:

     Id.  We also stated in Frank that freedom of religious belief
is "protected absolutely,"and that "[n]o value has a higher place
in our constitutional system of government than that of religious
freedom."


Footnote 12:

     Paul, 819 F.2d at 877.


Footnote 13:

     Herning v. Eason, 739 P.2d 167, 169 (Alaska (1987) (noting
that "conduct is considered religiously based if the practice is
deeply rooted in a religious belief").


Footnote 14:

     819 F.2d 875 (9th Cir. 1987).


Footnote 15:

     Id. at 877.  Paul's various claims included defamation,
invasion of privacy, fraud, and outrageous conduct.


Footnote 16:

     Id. at 881 (citations omitted).


Footnote 17:

     Frank, 604 P.2d at 1070 (quoting Sherbert v. Verner, 374 U.S.
398, 403 (1963)).


Footnote 18:

     See Paul, 819 F.2d at 883 ("[S]hunning [does] not constitute
a sufficient threat to the peace, safety, or morality of the
community as to warrant state intervention.").


Footnote 19:

     Therefore, a decision by the Oklahoma Supreme Court, Guinn v.
Church of Christ, 775 P.2d 766, 777-783 (Okla. 1989), cited by
Sands, is inapplicable to this case.  In Guinn, the court held that
a church's attempt to control a person who had withdrawn from the
church after the church elders had disciplined her for committing
fornication was not protected by the First Amendment.  In Guinn,
the church intended to discipline, control, and involve the former
church member, even after she had withdrawn.


Footnote 20:

     Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); see
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).


Footnote 21:

     See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 57 (1988)
(parody); Old Dominion Branch No. 496, Nat'l Ass'n of Letter
Carriers v. Austin, 418 U.S. 264, 285-86 (1974) (hyperbole);
Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, 398 U.S.
6, 14 (1970) (hyperbole).


Footnote 22:

     See Milkovich, 497 U.S. at 21.


Footnote 23:

     Id. at 24 (Brennan, J., dissenting) (citing Potomac Valve &
Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir.
1987); Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir. 1986);
Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984)).


Footnote 24:

     Other courts in similar contexts have also refused to decide
the meaning of religious terms in religious disputes.  See  Hartwig
v. Albertus Magnus College, 93 F. Supp. 2d 200, 218-19 (D. Conn.
2000) (declining to decide the meaning of "priest"); Klagsbrun v.
Va'ad Harabonim, 53 F. Supp. 2d 732, 741 (D. N.J. 1999) (declining
to decide the meaning of "bigamist").


Footnote 25:

     Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999).


Footnote 26:

     960 P.2d 556, 571 (Alaska 1998).


Footnote 27:

     Restatement (Second) of Torts sec. 682 cmt. b (1977).  See
also 1 Am. Jur. 2d Abuse of Process sec. 6 (1994) ("[Abuse of
process]
typically involves some form of extortion.").


Footnote 28:

     See Jenkins v. Daniels, 751 P.2d 19, 22 (Alaska 1988).


Footnote 29:

     See Estridge v. Housecalls Healthcare Group, Inc., 509 S.E.2d
219, 223 (N.C. App. 1998), rev'd in part on other grounds, 522
S.E.2d 581, 582 (N.C. 1999).


Footnote 30:

     See Kelly v. McBarron, 482 P.2d 187, 189-90 (Or. 1971)
(dicta).


Footnote 31:

     See AS 09.10.070 (limitations period is two years).


Footnote 32:

     Because we hold that Sands failed to state a claim for abuse
of process against Living Word and the Hejls, we need not reach the
issue of whether the relevant statute of limitations barred this
claim in its entirety.


Footnote 33:

     Sands's counsel acknowledged at oral argument that Sands's
allegations imputed a "dual motivation,"including both religious
and non-religious components, to the Hejls, but not to Living Word.


Footnote 34:

     See Frank v. State, 604 P.2d 1068, 1071 (Alaska 1979).


Footnote 35:

     Living Word argues that all of Sands's claims (including
claims against the Hejls) should be dismissed because of the
relevant statute of limitations.  However, the timing of much of
the Hejls' conduct is unclear from the facts alleged in Sands's
complaint.  As we noted recently in Hebert v. Honest Bingo, 18 P.3d
43, 48-49 (Alaska 2001), the analysis of the defense of the statute
of limitations is fact-intensive and it ordinarily is premature to
decide a statute of limitations issue on a motion to dismiss. 
Therefore, we decline to hold that Sands's negligent and
intentional infliction of emotional distress claims should be
dismissed on this basis.