Cimino v. FirsTier Bank, N.A.
| Decision Date | 14 April 1995 |
| Docket Number | No. S-93-493,S-93-493 |
| Citation | 247 Neb. 797,530 N.W.2d 606 |
| Parties | Lewis R. CIMINO et al., Appellants, v. FIRSTIER BANK, N.A., et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings: Motions to Strike. For the purposes of determining the relevancy and materiality of allegations in a pleading, a motion to strike admits the truth of all facts well pleaded and any inferences fairly deducible therefrom.
2. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
4. Pleadings: Actions: Contracts: Torts. To determine whether an action is based on a contract or a tort, a court must examine and construe the petition's essential and factual allegations by which the plaintiff requests relief, rather than the legal terminology utilized in the petition or the form of the pleading. Consideration must be given to the facts which constitute the cause of action.
5. Pleadings: Actions: Breach of Contract: Torts. If the petition contains a cause of action for breach of contract, additional averments appropriate to a cause of action for a wrong will not change the action from contract to tort, and if there is a doubt as to the character of the action, it will be resolved in favor of an action in contract. In such an instance, the statements appropriate to an action in tort will be considered surplusage.
6. Contracts: Words and Phrases. A condition precedent is a condition which must be performed before the parties' agreement becomes a binding contract or a condition which must be fulfilled before a duty to perform an existing contract arises.
7. Contracts: Offers to Buy or Sell: Parties. To create a contract, there must be both an offer and an acceptance; there must also be a meeting of the minds or a binding mutual understanding between the parties to the contract.
8. Contracts: Offers to Buy or Sell: Parties. For a binding contract to result from an offer and acceptance, the minds of the parties must meet at every point; nothing can be left open for future arrangement.
9. Contracts: Parties: Time. An agreement to make a future contract is not binding upon either party unless all terms and conditions are agreed upon and nothing is left to future negotiation.
10. Contracts: Parties: Time. A contract is not formed if the parties contemplate that something remains to be done to establish contractual arrangements or if elements are left for future arrangement.
11. Contracts. An agreement to agree, rather than a complete contract that could simply be memorialized at a later time, is not enforceable in Nebraska.
12. Contracts: Parties. The implied covenant of good faith and fair dealing exists in every contract and requires that none of the parties to the contract do anything which will injure the right of another party to receive the benefit of the contract.
13. Contracts. In order for the implied covenant of good faith and fair dealing to apply, there must be in existence a legally enforceable contractual agreement.
14. Pleadings. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made.
15. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through the judicial system.
16. Pleadings: Time. The time at which an amendment to a petition occurs is not dispositive of whether a party was prejudiced.
Michael C. Cox and Terrance S. DeWald, of Koley, Jessen, Daubman & Rupiper, P.C., Omaha, for appellants.
Thomas E. Johnson and Steven C. Turner, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellees.
Lewis R. Cimino, individually, and Richard D. Cimino and Robert M. Cimino (collectively, the Ciminos), individually and as trustees of the Cimino Family Estate Trust (Family Trust), brought this action against the defendants, FirsTier Bank, N.A., FirsTier Leasing Corp., and FirsTier Bank, N.A., Omaha (collectively, FirsTier). The Ciminos appeal the decision by the district court for Douglas County wherein the district court sustained FirsTier's motion to strike certain factual allegations and three theories of recovery from the Ciminos' second amended petition, as well as the district court's decision to sustain FirsTier's motion for summary judgment on the Ciminos' third amended petition. The Ciminos also complain that the district court erred in overruling the Ciminos' motion for leave to file a fourth amended petition. We affirm the judgment of the district court for the reasons stated below.
The Ciminos filed their second amended petition in the district court on April 23, 1991. Based on the factual background detailed herein, the Ciminos alleged five theories of recovery: breach of an oral contract, breach of the obligation of good faith and fair dealing, breach of fiduciary duty, intentional interference with contractual relationship, and misrepresentation. The first two theories of recovery sounded in contract, while the last three sounded in tort. FirsTier filed a motion to strike paragraphs 18 and 26, as well as counts III (breach of fiduciary duty), IV (intentional interference with contractual relationship), and V (misrepresentation) from the second amended petition. The district court sustained FirsTier's motion to strike.
Later, the Ciminos filed a motion for new trial, reconsideration, and clarification of the district court's ruling on the motion to strike. The district court denied that motion. The Ciminos then filed their third amended petition, which reflected the changes necessitated by the order to strike.
FirsTier filed a motion for summary judgment on the third amended petition. Almost 5 months later, on March 3, 1993, the day of the hearing on the summary judgment motion, the Ciminos filed a motion for leave to file a fourth amended petition. On May 13, the district court sustained FirsTier's motion for summary judgment on the Ciminos' third amended petition, holding that the evidence, viewed in a light most favorable to the Ciminos failed as a matter of law to establish the requisite meeting of the minds necessary for the creation of the alleged December 10, 1987, oral contract. The district court held that the deposition testimony of the participants in the December 10 meeting indicated that no one shared the same understanding of the terms of the loan guaranty and that each participant, as reflected by the written documentation prepared after the December 10 meeting, expected further negotiations before the deal could be closed.
On May 20, 1993, the district court denied the Ciminos' motion for leave to file a fourth amended petition. This appeal followed.
Plaintiff Lewis Cimino became involved in the trucking business in the mid-1960's. In 1967, Lewis purchased and began operating a long-haul over-the-road refrigerated trucking business known as Silvey Refrigerated Carriers (Silvey). The Family Trust owned all the common stock in Silvey, and Lewis owned all the preferred stock. Lewis formed several subsidiary companies for the purposes of buying and selling other Cimino business ventures, leasing equipment to Silvey, and owning real estate for Silvey.
Lewis financed the purchase of Silvey with a loan from the Omaha National Bank, now known as FirsTier. During the 1980's, the relationship between Silvey and FirsTier expanded to include leased equipment, equipment purchased with industrial development authority bonds (IDA bonds), a revolving line of credit, and letters of credit for fuel and service work required for the trucking operation. At the time the instant proceedings were filed, Silvey and the related companies had outstanding debt to FirsTier totaling approximately $8.9 million.
Richard and Robert Cimino, Lewis' sons, are both attorneys. In the late 1970's or early 1980's, Richard and Robert began working for Silvey. Sometime during the mid-1980's, Lewis decided to diminish his role in Silvey's administration, leaving the company in Richard and Robert's hands.
Thomas Grojean, the owner of a number of other trucking businesses, formed a holding company in 1987 for the purpose of acquiring Silvey. John Muehlstein and Rich Traub, attorneys from the Chicago law firm of Pedersen & Haupt, represented Grojean in his attempt to acquire Silvey. Richard Cimino negotiated with Grojean on behalf of Silvey and the other Cimino companies, and retained an Omaha law firm to assist in preparing documentation and to render any necessary legal opinions.
In June 1987, Richard and Robert decided to seek a buyer for Silvey and the related companies. The Ciminos retained a broker, which prepared a brochure about the business and distributed it to several potential purchasers.
One of the potential buyers who contacted the Ciminos about purchasing Silvey and the related companies was Grojean. Robert considered Grojean's offer very attractive because Grojean proposed to purchase the entire company, including the stock and...
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