Cummings v. Curtiss

• Decision Date: 25 January 1985
• Docket Number: No. 83-736,83-736
• Citation: 361 N.W.2d 508,219 Neb. 106
• Parties: Bobby CUMMINGS, Appellant, v. Bruce CURTISS, Appellee.
• Court: Nebraska Supreme Court

Page 508

361 N.W.2d 508

219 Neb. 106

Bobby CUMMINGS, Appellant, v. Bruce CURTISS, Appellee.

No. 83-736.

Supreme Court of Nebraska.

Jan. 25, 1985.

Syllabus by the Court

1. Summary Judgment. The purpose of a summary judgment proceeding is to pierce allegations of pleadings and to show conclusively that the controlling facts are otherwise than alleged and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. The granting of summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable doubt touching the existence of a material issue of fact must be resolved against the moving party.

3. Fraud. Fraudulent misrepresentation requires the plaintiff to prove (1) that a representation was made, (2) that the representation was false, (3) that when the representation was made it was known to be false or made recklessly without knowledge of its truth and as a positive assertion, (4) that it was made with the intention that the plaintiff should rely upon it, (5) that the plaintiff did rely upon it, and (6) that he suffered damage as a result.

Bobby Cummings, pro se.

Jewell, Otte, Gatz & Collins, Norfolk, for appellee.

BOSLAUGH, WHITE and GRANT, JJ., McCOWN, J., Retired, and COLWELL, District Judge, Retired.

McCOWN, Justice, Retired.

This is an appeal from an order of the district court for Pierce County, Nebraska, granting summary judgment for the defendant. This action involved allegations that the defendant, a lawyer, had made fraudulent misrepresentations to the plaintiff client in connection with the settling of an estate. We affirm the judgment of the district court.

The testator, Ren J. Kroupa, died on March 24, 1979, leaving a will which he had made on a printed form. The plaintiff, who was not related to the decedent, and the decedent's brother, Frank E. Kroupa, engaged the defendant, an attorney, to probate the will which named them as sole beneficiaries of the estate.

After the will was filed for probate, other relatives of the decedent filed objections to the petition for probate. They alleged that the will was not properly signed, executed, or attested; that the deceased lacked testamentary intent; and that the decedent was the victim of undue influence. The contestants subsequently offered a "stipulation" under which both plaintiff and Kroupa would disclaim their one-half share each under the will and accept a one-fifth share each in exchange for the withdrawal of objections to probate. The contestants were to receive the remaining three-fifths of the estate.

The defendant encouraged the plaintiff to accept the proffered settlement and expressed reservations about the validity of the decedent's will. The plaintiff alleged that defendant told him the will was not properly signed by two witnesses, thus making it invalid. Plaintiff further alleged that defendant also stated that the will would not hold up in any court in Nebraska and that if the plaintiff, a nonrelative, hoped to receive anything from the estate, he should sign the stipulation, since "A fifth of something is better than nothing, isn't it?"

The defendant alleged that he had informed the plaintiff on several occasions that the will was of questionable validity. He stated that the will may not be valid as either a formal or a holographic will, and warned plaintiff that there might be a will contest. After informing the plaintiff of this, defendant suggested that plaintiff consider a settlement with the contestants, the terms of which are contained in the stipulation, and the plaintiff accepted them in order to avoid the uncertain outcome of litigation.

The will was admitted to probate in May of 1979, subject to the terms of the stipulation, and the estate was divided in accordance with the settlement agreement.

In December of 1982 the plaintiff "discovered" Neb.Rev.Stat. § 30-2328 (Reissue 1979) concerning holographic wills, and subsequently filed this action for fraudulent misrepresentation. Both parties moved for summary judgment, and the district court granted defendant's motion and entered judgment accordingly. Plaintiff assigns as error the district court's failure to find that defendant's representations were false, that he used artifice to fraudulently conceal the truth, and contends that, under the circumstances, knowledge of the misrepresentation must be imputed to the defendant.

It is fundamental that the purpose of a summary judgment proceeding is to pierce allegations of pleadings and to show conclusively that the controlling facts are otherwise than alleged and that the moving party is entitled to judgment as a matter of law.... It is equally as fundamental that the granting of summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable doubt touching the existence of a material issue of fact must be resolved against the moving party.

Strong v. K & K Investments, 216 Neb. 370, 373, 343 N.W.2d 912, 915 (1984).

Fraudulent misrepresentation requires the plaintiff to prove:

(1) That a representation was made; (2) That the representation was false; (3) That when the representation was made it was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) That it was made with the intention that the plaintiff should rely upon it; (5) That the plaintiff did rely upon it; and (6) That he suffered damage as a result. Ames Bank v. Hahn, 205 Neb. 353, 287 N.W.2d 687 (1980).

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