Everlasting Golden Rule Church v. Dakota Title & Escrow Co.

• Decision Date: 16 December 1988
• Docket Number: No. 87-209,87-209
• Citation: 432 N.W.2d 803,230 Neb. 590
• Court: Nebraska Supreme Court
• Parties: EVERLASTING GOLDEN RULE CHURCH, a Missouri Corporation, Appellee, v. DAKOTA TITLE & ESCROW COMPANY, a Nebraska Corporation, Appellant.

Page 803

432 N.W.2d 803

230 Neb. 590

EVERLASTING GOLDEN RULE CHURCH, a Missouri Corporation, Appellee, v. DAKOTA TITLE & ESCROW COMPANY, a Nebraska Corporation, Appellant.

No. 87-209.

Supreme Court of Nebraska.

Dec. 16, 1988.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper 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 material facts, and when the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, this 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.

3. Venue: Appeal and Error. Where the record does not show an abuse of discretion, a ruling on a motion to transfer venue will not be disturbed on appeal.

Michael McCormack and Thomas J. Donnelly, of McCormack, Cooney, Mooney & Hillman, Omaha, for appellant.

Michael M. O'Brien, of Matthews & Cannon, P.C., Omaha, for appellee.

HASTINGS, C.J., WHITE, and CAPORALE, JJ., and QUIST, District Judge, and COLWELL, District Judge, Retired.

HASTINGS, Chief Justice.

Defendant, Dakota Title & Escrow Company, has appealed from the judgment of the district court entered following the sustaining of plaintiff's motion for summary judgment. Defendant's assignments of error include the denial by the district court of defendant's motion for summary judgment, the granting of plaintiff's motion for summary judgment, and the failure of the trial court to grant a change of venue.

On August 31, 1983, the Everlasting Golden Rule Church (plaintiff), the defendant, World-Wide Steel Systems, Inc., and SWN Investment entered into an escrow agreement in reference to the purchase of real property described as "Lot 1, SWN Investments # 2, a subdivision as surveyed, platted and recorded, Sarpy County, Nebraska." The pertinent portions of the agreement provided as follows:

A. Seller [plaintiff] shall place the sum of $16,000.00 in an escrow account to be held by the Escrow Agent [defendant]; which sum represents an amount sufficient to protect the Buyer [SWN Investment] against a possible judgment lien against said property resulting from an action involving the Seller and the property described herein, which action is filed at Doc. 54, No. 187 of the District Court of Sarpy County, Nebraska, and is entitled "Clifford D. Gullett, Plaintiff, vs. World-wide Steel Systems, Inc., a Nebraska Corporation; The Everlasting Golden Rule Church, a Missouri Corporation, and Kelly Green, Defendants".

B. That said sum shall be held pending resolution of said lawsuit, and upon resolution shall be distributed pursuant to the court's order.

Clifford D. Gullett, the plaintiff referred to in the escrow agreement, had obtained a judgment against World-Wide in an Iowa court, which, together with interest, amounted to $13,808.12 (apparently, the judgment was for $11,530.48 and accumulated interest to reach the sum of $13,808.12) as of April 19, 1983. On that date, Gullett filed a petition in equity in the district court for Sarpy County against World-Wide, the church, and Kelly Green. That case may be found at docket 54, page 187, and is the action referred to in the escrow agreement. The petition alleged generally that World-Wide is a mere facade for the personal dealings of Green and that in an effort to hinder his creditors, Green transferred the property (the property described in the escrow agreement) from World-Wide to the church with the intent to hinder, delay, and defraud the creditors of World-Wide and Green. The petition further prayed that the court annul and set aside the transfer and that judgment be awarded the plaintiff against Green in the sum of $13,808.12, plus interest from March 1, 1983.

On April 16, 1984, Gullett filed another petition in the district court for Sarpy County seeking to register the Iowa judgment referred to above. In that action, found at docket 59, page 4, Gullett's motion for summary judgment in the amount of $11,530.48 plus interest of $4,003.58 as of August 30, 1984, was sustained and judgment entered accordingly. Gullett's attorney, on September 18, 1984, filed a praecipe with the clerk of the district court for Sarpy County for a writ of execution to levy upon all personal property of World-Wide Steel Systems, Inc., or specifically, any funds held by Dakota Title & Escrow Company, of World-Wide Steel Systems, Inc. under an Escrow Agreement dated August 31, 1983, to satisfy Plaintiff's judgment in the amount of $15,517.17.

On the same day, Gullett's attorney also filed a praecipe for a "writ of execution and levy upon all funds held by Dakota Title & Escrow Company Company [sic], of Kelly Green, under an Escrow Agreement dated August 31, 1983, to satisfy plaintiff's judgment in the amount of $300.00."

On September 18, 1984, the clerk of the...