Association of Commonwealth Claimants v. Moylan, S-92-835

• Decision Date: 03 June 1994
• Docket Number: No. S-92-835,S-92-835
• Citation: 246 Neb. 88,517 N.W.2d 94
• Parties: ASSOCIATION OF COMMONWEALTH CLAIMANTS, an Unincorporated Association, Appellant, v. James MOYLAN et al., Appellees.
• Court: Nebraska Supreme Court

Page 94

517 N.W.2d 94

246 Neb. 88

ASSOCIATION OF COMMONWEALTH CLAIMANTS, an Unincorporated Association, Appellant, v. James MOYLAN et al., Appellees.

No. S-92-835.

Supreme Court of Nebraska.

June 3, 1994.

Syllabus by the Court

1. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

2. Actions: Judicial Notice: Demurrer. When cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in the former proceedings involving one of the parties now before it, the court has a right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. Matters so judicially noticed are properly considered when determining the questions presented by a demurrer.

3. Limitations of Actions: Time: Damages. An action accrues and the statutory time within which the action must be filed begins to run when the injured party has the right to institute and maintain a lawsuit, although the party may not know the nature and extent of the damages.

4. Statutes: Appeal and Error. Statutory interpretation involves questions of law in connection with which an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the trial court.

5. Statutes: Legislature: Intent: Appeal and Error. In ascertaining the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as demonstrated by the entire language of the statute.

6. Statutes. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; when the words of a statute are plain, direct, and unambiguous, no construction is necessary or will be indulged to ascertain their meaning.

7. Statutes: Legislature: Intent: Appeal and Error. In determining the meaning of a statute, an appellate court may conjunctively consider and construe a collection of statutes which pertain to a certain subject matter to determine the intent of the Legislature, so that different provisions of the act are consistent and sensible.

8. Demurrer: Pleadings. When a demurrer to a petition is sustained, a court must grant to the plaintiff leave to amend the petition unless it is clear that no reasonable possibility exists that amendments will correct the defect.

9. Limitations of Actions: Pretrial Procedure. In the application of statutes of limitations, discovery occurs when the party knows of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery of facts constituting the basis of the cause of action.

Robert R. Gibson, Lincoln, for appellant.

Rodney M. Confer and Trev E. Peterson, of Knudsen, Berkheimer, Richardson & Endacott, William D. Kuester, of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, Thomas L. Kimer, of Faegre & Benson, Minneapolis, MN, Paul M. Schudel, of Woods & Aitken, Lincoln, Gerald Laughlin and Jill Robb Ackerman, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, Gregory Perry, of Perry, Guthery, Haase & Gessford, P.C., and David A. Barron, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellees Moylan et al.

James B. Cavanagh, of Lieben, Dahlk, Whitted, Houghton, Slowiaczek & Jahn, P.C., Omaha, for appellees First Nat. Bank and Dennis O'Neal.

BOSLAUGH, WHITE, FAHRNBRUCH, and LANPHIER, JJ., and CONNOLLY, HANNON, and IRWIN, Judges.

WHITE, Justice.

Association of Commonwealth Claimants appeals from the order of the district court sustaining appellees' demurrer and dismissing appellant's action. The district court held that appellant's action was barred by the 4-year statute of limitations set forth in Neb.Rev.Stat. § 25-207(3) and (4) (Reissue 1989). We affirm.

This is one of several cases related to the failure of Commonwealth Savings Company (Commonwealth). See, Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991); Weimer v. Amen, 235 Neb. 287, 455 N.W.2d 145 (1990); Association of Commonwealth Claimants v. Hake, 2 Neb.App. 123, 507 N.W.2d 665 (1993). Appellant is an association consisting of persons who suffered losses because of the failure of Commonwealth. One of the purposes for which appellant was formed is to represent the interests of those persons who may have causes of action related to the failure of Commonwealth. Appellees are directors of the former Nebraska Depository Institution Guaranty Corporation (NDIGC) who also served as employees of other state financial institutions. Appellees also include other individuals who allegedly engaged in wrongful conduct which caused the failure of NDIGC in 1985. The actions asserted by appellant in this case are intended to remedy the injuries caused by the failure of NDIGC.

This appeal concerns the date on which appellant's actions accrued and whether such actions are barred by the applicable statute of limitations. Appellant contends that the actions accrued on or after January 4, 1985--the date on which NDIGC closed. Appellees contend that the actions accrued on or before November 8, 1983--the date on which Commonwealth was declared insolvent and a receiver was appointed. Appellant filed its petition on December 5, 1988. The causes of action alleged by appellant are governed by the 4-year statute of limitations set forth in § 25-207(3) and (4).

Commonwealth was an industrial loan and investment company in Lincoln, Nebraska, in which appellant's members were depositors. On November 1, 1983, the Nebraska Department of Banking and Finance declared Commonwealth insolvent. On November 8, the department was appointed receiver and liquidating agent for Commonwealth.

At the time of its insolvency, Commonwealth was a member institution of NDIGC. NDIGC was a corporation formed in accordance with the Nebraska Depository Institution Guaranty Corporation Act, Neb.Rev.Stat. §§ 21-17,127 to 21-17,145 (Reissue 1991). NDIGC was formed to protect and guarantee deposits, savings, and shareholdings held by member institutions such as Commonwealth. (We will refer to these various interests as deposits, and the owners of these interests as depositors.) Pursuant to the NDIGC plan, each Commonwealth deposit was guaranteed for losses up to $30,000. On January 4, 1985, NDIGC closed without having satisfied its obligations owed to the Commonwealth depositors.

On December 5, 1988, appellant filed its petition against appellees. In its petition, appellant contends that the wrongful acts of appellees contributed to the collapse of NDIGC and that because of the collapse of NDIGC, NDIGC was unable to reorganize Commonwealth and Commonwealth depositors were unable to collect on the guaranties. Appellant asserts several theories as a basis for its action, as well as a claim for injuries to the rights of appellant's members.

Appellees filed a demurrer arguing, in part, that appellant's actions are barred by the statute of limitations. The district court granted appellees' demurrer because it found that the actions were time barred. The district court further found that this defect could not be cured by amendment.

Appellant contends that the district court erred in (1) finding that the action was barred, (2) "implicitly" finding that the petition did not on its face negate a statute of limitations defense, and (3) holding that the defect cannot be cured by amendment.

In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994); DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994); Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993); St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993).

In an effort to thoroughly address the issues raised in this appeal, we find it necessary to take judicial notice of the court records of a case previously considered by this court. When

cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in the former proceedings involving one of the parties now before it, the court has a right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. Matters so judicially noticed are properly considered when determining the questions presented by a demurrer.

Rhodes v. Yates, 210 Neb. 14, 15, 312 N.W.2d 680, 681 (1981). Accord, Fowler v. Nat. Bank of Commerce, 209 Neb. 861, 312 N.W.2d 269 (1981); Knapp v. City of Omaha, 175 Neb. 576, 122 N.W.2d 513 (1963). We take judicial notice of the records from the former proceedings in Weimer v. Amen, 235 Neb. 287, 455 N.W.2d 145 (1990). Those proceedings, in which appellant was a plaintiff, involved actions for relief of injuries caused by the failure of Commonwealth and included allegations of wrongful conduct substantially similar to that alleged in the petition in this case. Additionally, in considering appellees' demurrer, the Lancaster County District Court took judicial notice of its prior related proceeding in In the Matter of the State Tort Claim of the Department of Banking and Finance of the State of Nebraska, Receiver of Commonwealth Savings Company, docket 380, page 10 (In the Matter of the State Tort Claim). As that record has...