Statute of Limitations

Applicable Statute of Limitations Law
The claims of this lawsuit are derived from frauds. Consequently, the application of the Statute of Limitations in this lawsuit is governed by "Fraud or mistake (3 to 6 years, time commencing on date of discovery of fraud or mistake, not the occurrence)" (see "https://www.allbusiness.com/statute-of-limitations-basics-4133-1.html").

Statute of Limitations when a fiduciary relationship is involved
The determination of the SOL start date in cases of fraud involving fiduciary relationships has the following additional factors:

Actual Knowledge of Facts... EXPAND CONTRACT
"The mere fact that the defrauded party has the opportunity or power to investigate the fraud, is not sufficient to charge him with notice of the fraud, so as to start the running of the statute of limitations."
For example, while parties are ordinarily charged with knowledge of facts reflected in the public record, this is generally not the case in a fiduciary relationship. The plaintiffs have no legal duty to investigate at least until they have actual knowledge of facts sufficient to excite inquiry. The fraud statute of limitations does not start to run in a fiduciary relationship until the level of knowledge possessed by the plaintiff approaches actual notice...... [see http://www.shareholderoppression.com/fraud-statute-of-limitations]
Fiduciaries' Duty to Disclose ... EXPAND CONTRACT
Because fiduciaries have a duty to disclose, upon which the beneficiary is entitled to rely, breach of fiduciary duty is inherently undiscoverable as a matter of law. Fiduciaries are presumed to possess superior knowledge, meaning the injured party, the client, is presumed to possess less information than the fiduciary. Consequently, in the fiduciary context, it may be said that the nature of the injury is presumed to be inherently undiscoverable, although a person owed a fiduciary duty has some responsibility to ascertain when an injury occurs.

Analysis of SOL Factors
With respect to determining the SOL of the Plaintiff`s Child-Support Breach claim, the critical piece of discovery was the Conversion Deal that the Defendant entered into with Ted Foley to misuse the Plaintiff`s Collateral Shares to acquire Efficient Learning Systems shares.
Up until August 15th 2017 when the Plaintiff`s son made the discovery of incriminating documents and emails, the Conversion Deal was an "Unknown Unknown", meaning that the Plaintiff had no knowledge of even its possibility.

To provide comprehensive analysis, the following shows how the Plaintiff`s potential learning (pre-2010) and actual learning (post-2010) of the Defendant`s non-compliance with the Usage Mandates failed to lead to the discovery of the Conversion Deal ...EXPAND CONTRACT

Two questions arise that could be potentially relevant is whether the Plaintiff could have discovered the Conversion Deal earlier than August, 2017.

The first is whether the Plaintiff could have discovered the Conversion Deal before 2010, the date when he determined that the Defendant had not used the Collateral Shares to retire the Plaintiff`s child-support debt by complying with the associated Usage Mandates.

The second is whether the Plaintiff could have discovered the Conversion Deal after 2010, armed with the knowledge that the Defendant had not used the Collateral Shares to retire the Plaintiff`s child-support debt by complying with the associated Usage Mandates.

In order to address the potential for Conversion Deal discovery either pre or post 2010, it is important to firstly understand the Plaintiff`s formulation of the Collateral Shares offer to the Defendant.

Addressing All Contingencies
The Plaintiff`s original rationale for putting forward the offer to the Defendant was to satisfy the Plaintiff`s child-support obligations to the Defendant in the context of the Plaintiff`s life-expectancy uncertainties in the coming years. The Plaintiff was transitioning back to Australia to get healthcare and family support and was not going to be earning money for the foreseeable future.
Because of his health uncertainty, the Plaintiff wanted the formulation of the offer to automatically address the following contingencies that could potentially play out...EXPAND CONTRACT

Expected Consummation
The Usage Mandates defined the procedure for the Defendant to consummate and sell the Collateral Shares, and the requirement to use the proceeds to mitigate the Plaintiff`s child-support debt. It also mandated that the Defendant was obligated to return excess shares to the Plaintiff. See Usage Mandates...EXPAND CONTRACT

OBTAINED AUGUST 15, 2017 BY THE PLAINTIFF`S ELDER SON FROM THE DEFENDANT`s COMPUTER
[scroll down to view Usage Mandates]

Non-Consummation
To cover the highly unlikely case where the Defendant chose not to consummate the Collateral Shares, the required actions to take were covered in the "Sale" paragraph of the Reservation order registered with K2000. See following Reservation Order...EXPAND CONTRACT

Specifically, the "Sale" paragraph states that "Any of the Collateral Shares unsold after the 21st May 2005 shall be returned to me" . If none of the shares were sold, this paragraph required that all of the Collateral Shares were to be returned to the Plaintiff on the 21th May, 2005.

Plaintiff`s Passing
To cover the contingency of the Plaintiff passing-on, the above Reservation Order provided two paragraphs, the "Disposal" paragraph to automatically transfer the returned Collateral Shares to the Plaintiff`s sons in 2007, and the "Transparency" paragraph to redirect all communications on the Collateral Shares matter to the Defendant.

Pre 2010
Prior to 2010, the Plaintiff`s knowledge of whether the Defendant had consummated the Collateral Shares or not was a "Unknown Known".
However, he did not suspected any wrongdoing as it was inconceivable that the Defendant would not have consummated the Collateral Shares and, as a result, not retired the Plaintiff`s child-support debt. Because the Defendant had a compelling financial incentive to receive the back child-support payments, the Plaintiff strongly believed that the Defendant had indeed fulfilled the Usage Mandates. This was based on the following:

The Plaintiff never received from either the Arizona Division of Child-Support or the Australian Child-Support agency any notifications of continued child-support debt pre 2010. The Defendant made no attempt to facilitate this even though she had the Plaintiff`s address that she could have given to the Arizona Division of Child-Support.
In addition, during that time window the Defendant did NOT make any attempt to notify the Plaintiff that she had NOT fulfilled the Usage Mandates of the Collateral Shares and therefore he still owed child-support.
This begs the question "Why did she have not strongly pursue the recovery of the debt?" ... The Plaintiff now knows that the answer to that question was that she wanted to hide how she had actually used the Collateral Shares.

The discovery by the Plaintiff that his child-support debt had not been retired, would have meant that the Collateral Shares would have been automatically transferred to his sons as per the "Disposal" paragraph of the above Reservation Order.
Post 2010
When the Plaintiff discovered that the Defendant had not used the Usage Mandates procedures to consummate the Collateral Shares, to subsequently receive back payments, and to retire the Plaintiff`s child-support, he embarged on a series of actions detailed in the "Notification of Accrued Foreign Child-Support Debt" section, all of which ultimately proved futile.

Finally after more careful reading of the Usage Mandates defined on the Collateral Shares Certificate, he realized that the Usage Mandates as stated were optional for the Defendant. She did have the choice of not consummating the Collateral Shares. To wit, the "may" in clauses "may present this stock certificate" and "may subsequently sell" provided the Defendant with the option to not use the Collateral Shares at all.

With this realization, the Plaintiff decided to start making payments on the child-support debt.

Both the pre-2010 and post-2010 left the Plaintiff no closer to discovering that the Defendant had used the Collateral Shares to secure Efficient Learning Systems shares via the Conversion Deal. It remained an "Unknown Unknown".
It`s discovery had to wait until August 15, 2017.

Justification of SOL Start Date
The "SOL Start Date" of both frauds is August 15, 2017. An argument can be made that this is further extended to October, 2017 by which time a "critical mass" of discovery had been made to formulate a lawsuit... EXPAND CONTRACT

Starting from information extracted from a copy of the ELSco-JohnWiley Stock Purchase Agreement that he was only able to obtain in August 15, 2017, the Plaintiff was able to trace back to uncover that K2000`s business assets were fraudulently acquired from K2000, which was a company that he founded in 1996, and trustingly passed off to the Ted Foley in 2002 because of his declining health due to prostate cancer.
The justification of this date is as follows:

With respect to the justification of this date, two critical questions need to be answered:

When did the Plaintiff discover the Injuries? ...▶▶▶
On August 15th 2017, the Plaintiff acquired a trove of incriminating documents that led to the discovery of the two frauds at the base of the lawsuit. On August 15th 2017, the Plaintiff acquired a trove of incriminating documents that led to the discovery of the fraud at the base of the lawsuit.
- See "Discovery of Child-Support Fraud"
- See "Discovery of Share Elimination Fraud"
Why didn't the Plaintiff discover these injuries earlier?...▶▶▶
Coverup: Deliberate Concealment -- The delay in discovery was primarily due to the following three deliberate actions that were contrived by the Perpetrators to conceal information relevant to the injuries identified in this lawsuit:
- Share Elimination Deception
  In 2002, by being deliberately delinquent in registering the transfer of the Plaintiff`s K2000 shares to his sons, Ted Foley set up a "false understanding" of the disposition of the Plaintiff`s K2000 shares. The Plaintiff believed that all of his K2000 shares had been transferred to his sons, and that his ex-wife was the registered party for managing their sons' shares. He had no reason to suspect that his K2000 shares had been completely eliminated from the K2000-ELSco Share Exchange Deal [See Share Elimination Deception for details].
  The key point here is that it was a deliberate act by Ted Foley that enabled him to conceal this fraud from the Plaintiff for so long.
- No Access to the "ELSco-JohnWiley Stock Purchase Agreement"
  The "ELSco-JohnWiley Stock Purchase Agreement" was only sent to ELSco shareholders.
  The Plaintiff never received it, nor did he expect to receive a copy.
  His oldest son found it by accident attached to an email to the Plaintiff`s ex-wife. He then forwarded it onto the Plaintiff on August 15, 2017. It was the full list of each ELSco shareholder`s stake contained in this document that enabled the Plaintiff to begin the process of identifying the perfidies underlying this lawsuit.
- Access Control of K2000`s Share Registry
  Ted Foley maintained the K2000 Share Registry in his home office and restricted access to it to himself alone. The Plaintiff came across a copy of it when, after a board meeting, Ted Foley accidentally left behind a printout of the spreadsheet he used to update it.
  Without that copy, it would have been impossible to accurately quantify the damages claimed in this lawsuit.
- Non-Disclosure Requirement
  In addition, the "Non-disclosure Requirement" contained in the "Summary and Description of the SPA" letter (12th Oct, 2012) sent out to all ELSco shareholders prevented any of them from communicating anything about the sale of ELSco to John Wiley to the Plaintiff.
No Longer a Stakeholder -- The Plaintiff believed that he was no longer a stakeholder. He had no reason to suspect treachery. In addition, the full details of the exchange of all K2000 shares for ELSco shares were never disclosed to him. Ted Foley had reassured the Plaintiff that the future was in good hands; to "let it go and to refocus his energies on his own health challenges". In addition, because of K2000`s counsel warning against self-dealing, the Plaintiff was confident that K2000 was indeed in good hands, and that the possibility of anything treacherous occurring was unimaginable. He was wrong.