Broekemeier Ford, Inc. v. Clatanoff, S-89-665

• Decision Date: 20 March 1992
• Docket Number: No. S-89-665,S-89-665
• Citation: 240 Neb. 265,481 N.W.2d 416
• Court: Nebraska Supreme Court
• Parties: BROEKEMEIER FORD, INC., et al., Appellants, v. Duane CLATANOFF et al., Appellees.

Page 416

481 N.W.2d 416

240 Neb. 265

BROEKEMEIER FORD, INC., et al., Appellants, v. Duane CLATANOFF et al., Appellees.

No. S-89-665.

Supreme Court of Nebraska.

March 20, 1992.

Syllabus by the Court

1. Judgments: Appeal and Error. In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. In reviewing a judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

2. Limitations of Actions: Damages. A cause of action accrues and the statute of limitations begins to run when the aggrieved party has the right to institute and maintain suit, although the nature and extent of damages may not be known.

3. Limitations of Actions: Words and Phrases. "Discovery," as used in reference to a statute of limitations, means that an individual acquires knowledge of a fact which existed but which was previously unknown to the discoverer.

4. Limitations of Actions: Pleadings. If a petition alleges a cause of action ostensibly barred by the statute of limitations, such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute.

5. Limitations of Actions: Pleadings: Proof. If a petition, challenged under the statute of limitations, facially shows that a cause of action is barred by the statute of limitations, a plaintiff must allege facts sufficient to avoid the bar of a statute of limitations and, at trial, must prove facts avoiding the statute of limitations.

6. Limitations of Actions: Pleadings: Proof. If a petition, on its face, does not disclose that an action is barred by a statute of limitations, a defendant must plead the statute of limitations as an affirmative defense and has the burden to prove that affirmative defense.

E. Terry Sibbernsen and, on brief, John M. Peebles, of Domina, Gerrard, Copple & Stratton, P.C., Omaha, for appellants.

Larry L. Brauer, of Allan, Brauer & Mullally, Seward, for appellee Clatanoff.

Terrance A. Poppe, of Hecht, Sweet, Alesio, Morrow, Poppe & Otte, P.C., Lincoln, for appellees Langmeier et al.

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

SHANAHAN, Justice.

In 1987, Broekemeier Ford, Inc.; Twin Oaks Lincoln Mercury, Inc.; Willis J. Broekemeier; and Lu Ann Broekemeier, all as sellers, but collectively designated "Broekemeiers," commenced an action in the district court for Seward County against Duane Clatanoff; Roland Langmeier, doing business as Landmark Realty; Forrestt F. Combs; and R. James Pearson, who were involved in the 1979 sale and purchase of corporate property owned by the Broekemeiers' automobile dealerships, Broekemeier Ford and Twin Oaks Lincoln Mercury. Broekemeiers claimed that the defendants' fraud induced the sale of the dealerships' property. In their answers, the defendants asserted that Broekemeiers' cause of action was barred by the statute of limitations expressed in Neb.Rev.Stat. § 25-207 (Reissue 1989) (a tort action for fraud must be commenced within 4 years after discovery of the fraud). Pursuant to Neb.Rev.Stat. § 25-221 (Reissue 1989), the statute of limitations question was tried separately to the court, which found that the action was barred by the 4-year statute of limitations and dismissed Broekemeiers' action.

STANDARD OF REVIEW

In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. In reviewing a judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. See, Albee v. Maverick Media, Inc., 239 Neb. 60, 474 N.W.2d 238 (1991); Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989); Lynn v. Metropolitan Utilities Dist., 225 Neb. 121, 403 N.W.2d 335 (1987); Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986).

THE SALE IN QUESTION

After more than a decade in automobile dealerships, Broekemeiers, as sole shareholders in their corporate automobile dealerships, listed the dealerships' property for sale in December 1978 at $597,000 through Landmark Realty and its agent, Clatanoff. On January 16, 1979, Combs and Pearson extended an oral offer to purchase the dealerships' property for $526,000 in cash. Thereafter, on February 16 and February 20, 1979, the parties executed two identical contracts of sale for the property. Each contract document consisted of 5 pages and contained 24 numbered paragraphs, including provisions for payment of the $490,000 purchase price, that is, $240,000 paid before closing, with the $250,000 balance payable over a term of 10 years, with interest. The contracts also required that the purchasers, Combs and Pearson, would grant their mortgage on the dealerships' Seward County real estate, valued at $350,000, as security for payment of the contract price.

On May 23, the parties met to close the sale in accordance with the February contracts. Although a lawyer was representing Broekemeiers in the transaction, Willis Broekemeier, without the lawyer, attended the closing. A "Seller's Settlement Sheet" was circulated at the closing and In 1982, Broekemeier Ford, by its president, Willis Broekemeier, assigned to The Cattle National Bank of Seward the 1979 Combs-Pearson mortgage. The assignment was collateral for Broekemeier Ford's indebtedness to the bank and expressly referred to the Combs-Pearson real estate mortgage granted as a result of the 1979 contracts, including reference to the book and page of the mortgage records of Seward County, where the mortgage had been on record since May 1979.

                reflected a sale price of $490,000, with a "Contract amount carried back by seller ... $250,000.00."   Willis Broekemeier placed his signature on the settlement sheet at the closing.  Combs and Pearson executed a $250,000 mortgage on the real estate purchased from the dealerships.  That mortgage was recorded in Seward County in May 1979.  According to Willis Broekemeier, he assumed that a copy of the contracts would be delivered to his lawyer.  When the copies were not forthcoming, Willis Broekemeier, at some unspecified time, requested that the defendants supply him with a copy of each contract, but this request was unfulfilled
                

BROEKEMEIERS' LAWSUIT

Broekemeiers' Allegations.

When Broekemeiers filed their action in 1987, some 8 years after the sale of the automobile dealerships, they contended that Clatanoff, while representing Broekemeiers, conspired with Combs and Pearson to effectuate the sale ultimately closed on May 23, 1979, and that any February 1979 contract in the defendants' possession "is a false and fraudulent document misstating the agreement of the parties." Broekemeiers did not allege any specific conduct as fraud by the defendants in conjunction with the sale of dealership property. Further, Broekemeiers alleged nothing to explain how or when they discovered the alleged fraud. Broekemeiers claimed that they were damaged as the result of the contracts of February 16 and 20, 1979, since they were compelled to accept the lesser price of $490,000 vis-a-vis the real price of $530,000 specified in another agreement which Broekemeiers assert was signed for sale of the dealership property.

Trial on Statute of Limitations Issue.

Copies of the contracts signed on February 16 and 20, 1979, were introduced in evidence at the trial on the statute of limitations issue.

Although Willis Broekemeier, president of Broekemeier Ford and Twin Oaks Lincoln Mercury, acknowledged that he signed the contracts for sale, he claimed that the signature page, that is, the last page signed by Broekemeier, is the only authentic page in each of the five-page contracts. Additionally, Willis Broekemeier testified that on February 19 and 20, 1979, he signed another contract calling for a "$530,000.00 cash payment with no terms" for installment payments of the purchase price. However, Willis Broekemeier was unable to explain how the page bearing his signature became attached to the "wrong contract," which specified the $490,000 price in installment payments. Moreover, Broekemeiers were unable to produce a copy of what they claimed to be the true contract, which required the purchasers to pay $530,000 in 1979, with no provision for installment payments.

According to Broekemeiers, before the closing on May 23, 1979, they never agreed to installment payments secured by a real estate mortgage, but they did agree to accept a cash payment of the purchase price in full at the closing on May 23, 1979. Willis Broekemeier testified that Broekemeiers did, in fact, receive $240,000 from Combs and Pearson in 1979 and that, although Broekemeiers were unaware of the installment payment format followed by Combs and Pearson, Broekemeiers, nevertheless, accepted mortgage payments for 3 years before the assignment to The Cattle National Bank of Seward in 1982. Moreover, notwithstanding that Willis Broekemeier felt that "something was wrong" at the closing in May 1979, he proceeded with the closing in accordance with the settlement sheet. On cross-examination, Willis Broekemeier testified regarding his realization that something was "wrong" in the sale:

[Lawyer:] In May of 1979 after this deal was closed, you didn't like the outcome. Right?

[Broekemeier:] On May 23rd, I was very angry.

Q You were angry with the way the matter closed?

A The way I was slammed on with a $250,000.00 mortgage that I never did agree to.

Q Angry that you didn't...