Barelmann v. Fox, Nos. 89-499

CourtSupreme Court of Nebraska
Writing for the CourtHASTINGS; CAPORALE
Citation478 N.W.2d 548,239 Neb. 771
Decision Date10 January 1992
Docket Number89-713 and 89-1383,Nos. 89-499
Parties, 18 UCC Rep.Serv.2d 302 Russell B. BARELMANN and Sharon K. Barelmann, Appellants, v. Charles R. FOX, Appellee. CHAMBERS STATE BANK, Appellee, v. Russell B. BARELMANN and Sharon K. Barelmann, Appellants. Russell B. BARELMANN and Sharon K. Barelmann, Appellants, v. Charles R. FOX et al., Appellees.

Page 548

478 N.W.2d 548
239 Neb. 771, 18 UCC Rep.Serv.2d 302
Russell B. BARELMANN and Sharon K. Barelmann, Appellants,
v.
Charles R. FOX, Appellee.
CHAMBERS STATE BANK, Appellee,
v.
Russell B. BARELMANN and Sharon K. Barelmann, Appellants.
Russell B. BARELMANN and Sharon K. Barelmann, Appellants,
v.
Charles R. FOX et al., Appellees.
Nos. 89-499, 89-713 and 89-1383.
Supreme Court of Nebraska.
Jan. 10, 1992.

Page 550

Syllabus by the Court

1. Demurrer: Pleadings. In considering a demurrer, a court accepts the truth of the facts well pled and the factual and legal inferences which may reasonably be deduced therefrom, but does not accept the conclusions of the pleader.

2. Replevin: Time. In an action in replevin, the focus is on the rights of the parties when the action is filed, and what takes place thereafter is immaterial in the consideration and determination of the case.

3. Replevin: Time. The issue in a replevin action is not ownership of the property, but the right to immediate possession at the time of the commencement of the action, and, as a general rule, all matters foreign to the issue of possession must be excluded from consideration and are not available as defenses.

4. Summary Judgment. Summary judgment is properly granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or as to the ultimate inferences deducible from such facts and that the moving party is entitled to judgment as a matter of law.

5. Summary Judgment: Proof. Once the movant for summary judgment has established facts entitling the movant to summary judgment, the nonmovant has the burden of presenting evidence to show an issue of material fact which prevents a judgment as a matter of law.

6. Summary Judgment: Appeal and Error. On appeal from a summary judgment, it is an appellate court's duty to review the evidence in a light most favorable to the party against whom the judgment was granted and give such party the benefit of all reasonable inferences deducible from the evidence.

7. Debtors and Creditors: Security Interests: Consideration. No consideration is necessary for an instrument given as security for a debt already owed by the party giving it.

8. Replevin: Costs: Bonds. A successful plaintiff in replevin is entitled to recover the reasonable cost of the bond required of it by Neb.Rev.Stat. § 25-1098 (Reissue 1989).

9. Summary Judgment: Affidavits: Time. Neb.Rev.Stat. § 25-1332 (Reissue 1989) requires that the party resisting a motion for summary judgment serve any affidavits in opposition to the motion by the day prior to the hearing.

10. Torts: Conversion: Property: Words and Phrases. Tortious conversion is any distinct act of dominion wrongfully asserted over another's property in denial of or inconsistent with that person's rights.

11. Conversion: Property: Proof: Tort-feasors. A plaintiff in conversion must show [239 Neb. 772] (1) an immediate right to possession of the property and (2) its wrongful possession by the tort-feasor.

12. Livestock: Damages: Proof. The measure of damages for nonfatal injuries to livestock is the difference in the market value of the animal immediately before and immediately after the injury.

13. Declaratory Judgments. Actions for declaratory judgment are not to be entertained where another equally serviceable remedy has been provided by law, nor are they to be used to create new causes of action or cumulative remedies.

14. Demurrer: Pleadings. A demurrer tests the substantive legal rights of the parties, and a petition will be found sufficient if, from the statement of facts set forth in the petition, the law entitles a plaintiff to recover.

Michael B. Kratville, of Kratville Law Offices, Omaha, for appellants.

Daniel D. Jewell, of Jewell, Gatz, Collins, Dreier & Fitzgerald, Norfolk, for appellees Fox, Wrede, and Watson.

Forrest F. Peetz, of Peetz and Peetz, O'Neill, for appellee Bank.

James A. Widtfeldt, Atkinson, for appellee Kerkman.

Page 551

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

This opinion adjudicates three individual appeals, each taken in one of three separate but interrelated suits having as their origins the replevin action successfully brought by appellee, Chambers State Bank, against appellants, Russell B. Barelmann and his wife, Sharon K. Barelmann, in which the Barelmanns unsuccessfully counterclaimed for damages. Although this was the first suit filed, it was the second one appealed and is docketed in this court as case No. 89-713.

In the second suit filed, but the third appealed and docketed in this court as case No. 89-1383, the appellants Barelmann unsuccessfully sought redress, under a variety of theories, for the manner in which the replevied property was seized by the appellees, Charles R. Fox, Holt County Sheriff; Everett Watson and Clarence C. Wrede, Holt County Deputy Sheriffs; [239 Neb. 773] Lyle Kerkman, appraiser; Troy Judge, Marvin Stauffer, and Mark Johnson, assistants to the appraiser; and the County of Holt. We hereafter refer to this action as the misconduct suit.

Although docketed last, the third suit was appealed first and bears case No. 89-499 in this court. It came into being after the appellants Barelmann were permitted to sever from the misconduct suit their unsuccessful effort to obtain a declaratory judgment as to their rights against the appellee Fox alone.

In each case, we affirm.

II. FACTS

Following a long course of dealing, the Barelmanns, who are residents of Chambers, Holt County, Nebraska, executed two promissory notes in favor of the bank. The first note, executed on April 19, 1985, in the initial amount of $99,029.48 and paid down to $98,729.48, represents a renewal and consolidation of other notes and the accumulated interest thereon. The second promissory note, in the initial amount of $2,500 and paid down to $500, was executed on April 22, 1985, for "Fuel, Hog Feed, & Expenses."

On April 19, 1985, the Barelmanns also executed a financing statement and security agreement, which gave the bank an interest in certain specified property and in all equipment and farm products, including but not limited to crops, livestock, and supplies the Barelmanns then owned or might thereafter acquire. Each note provides that it, at the option of the bank and without notice or demand, upon the commencement by the Barelmanns of any proceeding under any bankruptcy law, becomes immediately payable in full.

On May 3, 1985, the Barelmanns filed for protection under chapter XI of the federal Bankruptcy Act, 11 U.S.C. §§ 101 et seq. (1982 & Supp. III 1985). As permitted by 11 U.S.C. § 362 (Supp. III 1985), the bank filed a motion for relief from the automatic stay arising in such situations in order that it might seek to enforce rights it claimed against the Barelmanns. The U.S. Bankruptcy Court for the District of Nebraska granted the bank's motion.

The bank next, on September 8, 1986, filed the replevin [239 Neb. 774] action described in part I, alleging that the Barelmanns were in default on loans in the principal sum of $99,229.48 and that, as a consequence, it was entitled to foreclose on the liens it held on the Barelmanns' property.

On September 23, 1986, the district court entered an order permitting the bank to replevy certain designated property held by the Barelmanns, including certain cattle and specified farm equipment. Fox, with the assistance of Watson, Wrede, Kerkman, Judge, Stauffer, and Johnson, thereafter seized the property listed in the replevin order, as well as other property which was not listed therein.

The Barelmanns subsequently filed a motion seeking return of some of the unlisted property. In response, on October 14, 1986, several of the items seized, including the cattle, were returned to the Barelmanns.

Page 552

The Barelmanns thereafter filed a second motion seeking the return of additional unlisted property or its value. A hearing on that motion was set for December 18, 1986; however, the Barelmanns failed to appear, and, consequently, the second motion was overruled.

Thereafter followed a series of attempts by the Barelmanns to indirectly reclaim the remaining unlisted property by asserting a variety of other damages. The answer filed on January 5, 1987, raised several affirmative defenses, including want of consideration, fraud, coercion, breach of contract, and undue influence, and asserted by way of counterclaim that the bank owed them approximately $300,000.

An even more intensive pleading war then ensued in which the bank by motions and demurrer challenged the Barelmanns' answer, amended answer, and second amended answer. After the district court sustained a portion of the bank's demurrer, it resolved the remaining issues in favor of the bank by a partial summary judgment and later by a directed verdict for the bank at the close of the Barelmanns' case.

While the pleading war in the replevin action was still being fought, the Barelmanns opened a second front by filing the misconduct suit described in part I, seeking damages from the appellees Fox, his deputies, the appraiser Kerkman, Kerkman's assistants, and the county.

In response to appellees' motion to strike the petition in the [239 Neb. 775] misconduct suit, the Barelmanns filed an amended petition and then a second, third, and fourth such petition. In their fourth amended effort, the Barelmanns for the first time sought a declaratory judgment that the replevin was conducted in violation of law. The appellees again demurred; the district court sustained one of the demurrers as to Holt County, but denied the demurrers as to Fox, his deputies, the appraiser, and his assistants. In addition, the district court sustained one of the demurrers as to certain other theories of recovery and dismissed them. The Barelmanns then filed a fifth...

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47 practice notes
  • Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., No. C 96-4061-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 29, 1998
    ...act of dominion wrongfully asserted over another's property in denial of or inconsistent with that person's rights. Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991); Mason v. Schumacher, 231 Neb. 929, 439 N.W.2d 61 (1989). Thu......
  • Ryder Truck Rental, Inc. v. Rollins, No. S-92-1134
    • United States
    • Supreme Court of Nebraska
    • July 1, 1994
    ...where another equally serviceable remedy is available. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); Moore v. Black, 220 Neb. 122, 368 N.W.2d 488 (1985). Here, the wrong (that is to say, the collision) has occurred, a......
  • Zimmerman v. FirsTier Bank, N.A., No. S-97-672
    • United States
    • Supreme Court of Nebraska
    • October 23, 1998
    ...property in denial of or inconsistent with that person's rights. Ochs v. Makousky, 249 Neb. 960, 547 N.W.2d 136 (1996); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); PWA Farms v. North Platte State Bank, 220 Neb. 516, 371 N.W.2d 102 (1985). The plaintiff must establish a right to i......
  • Lindsay Mfg. Co. v. Universal Sur. Co., Nos. S-91-703
    • United States
    • Supreme Court of Nebraska
    • July 29, 1994
    ...supra; Murphy v. Spelts-Schultz Lumber Co., supra; Moore v. Hartford Fire Ins. Co., 240 Neb. 195, 481 N.W.2d 196 (1992); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce s......
  • Request a trial to view additional results
47 cases
  • Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., No. C 96-4061-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 29, 1998
    ...act of dominion wrongfully asserted over another's property in denial of or inconsistent with that person's rights. Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991); Mason v. Schumacher, 231 Neb. 929, 439 N.W.2d 61 (1989). Thu......
  • Ryder Truck Rental, Inc. v. Rollins, No. S-92-1134
    • United States
    • Supreme Court of Nebraska
    • July 1, 1994
    ...where another equally serviceable remedy is available. Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); Moore v. Black, 220 Neb. 122, 368 N.W.2d 488 (1985). Here, the wrong (that is to say, the collision) has occurred, a......
  • Zimmerman v. FirsTier Bank, N.A., No. S-97-672
    • United States
    • Supreme Court of Nebraska
    • October 23, 1998
    ...property in denial of or inconsistent with that person's rights. Ochs v. Makousky, 249 Neb. 960, 547 N.W.2d 136 (1996); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); PWA Farms v. North Platte State Bank, 220 Neb. 516, 371 N.W.2d 102 (1985). The plaintiff must establish a right to i......
  • Lindsay Mfg. Co. v. Universal Sur. Co., Nos. S-91-703
    • United States
    • Supreme Court of Nebraska
    • July 29, 1994
    ...supra; Murphy v. Spelts-Schultz Lumber Co., supra; Moore v. Hartford Fire Ins. Co., 240 Neb. 195, 481 N.W.2d 196 (1992); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce s......
  • Request a trial to view additional results

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