Fackler v. Genetzky
| Citation | 257 Neb. 130,595 N.W.2d 884 |
| Decision Date | 18 June 1999 |
| Docket Number | No. S-98-457,S-98-457 |
| Parties | Howard S. FACKLER and Patricia A. Fackler, husband and wife, Appellants, v. Roger M. GENETZKY, Appellee. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. 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.
2. Summary Judgment: Appeal and Error. In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Malpractice. The standards of professional negligence apply to a malpractice action involving a veterinarian.
4. Malpractice: Proof: Proximate Cause. In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized professional standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff's alleged injuries.
5. Summary Judgment: Proof. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial.
6. Summary Judgment: Proof. In the absence of a prima facie showing by the movant that he or she is entitled to summary judgment, the opposing party is not required to reveal evidence which he or she expects to produce at trial to prove the allegations contained in his or her petition.
7. Actions: Judgments: Final Orders: Appeal and Error. Where multiple causes of action are alleged, an entry of judgment on one cause of action is a final, appealable order with respect to that cause of action, despite the pendency of other causes of action in the same suit.
8. Actions: Words and Phrases. A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action.
9. Actions. Whether more than one cause of action is stated depends mainly upon whether more than one primary right or subject of controversy is presented and also upon whether recovery on one ground would bar recovery on the other, whether the same evidence would support the different counts, and whether separate actions could be maintained for separate relief.
10. Damages: Mental Distress: Animals. Nebraska law regards animals as personal property; mental suffering is not a legitimate measure of damages for destruction of personal property.
11. Damages: Mental Distress: Animals. Damages for mental suffering or emotional distress may not be recovered for the negligently inflicted death of an animal.
12. Actions: Equity: Unjust Enrichment. An action for assumpsit for money had and received may be brought where a party has received money which in equity and good conscience should be repaid to another; in such a circumstance, the law implies a promise on the part of the person who received the money to reimburse the payor in order to prevent unjust enrichment.
13. Actions: Equity: Words and Phrases. Although founded on equitable principles, an action for assumpsit for money had and received falls under the common-law class of assumpsit and is an action at law.
14. Actions: Proof. In order to maintain an action for money had and received, a plaintiff must show that (1) the defendant received money, (2) the defendant retained possession of the money, and (3) the defendant in justice and fairness ought to pay the money to the plaintiff.
Dorothy A. Schinzel, for appellants.
Charles T. Patterson, and Patrick L. Sealey, of Heidman, Redmond, Fredregill, Patterson, Plaza & Dykstra, L.L.P., Sioux City, IA, for appellee.
Howard S. Fackler and Patricia A. Fackler appeal from a summary judgment entered against them by the district court in their professional negligence action against Roger M. Genetzky, a veterinarian. For the reasons stated herein, we reverse the judgment and remand the cause for further proceedings.
The Facklers filed a petition in the district court on February 12, 1997, against Genetzky and the Atokad racetrack, located in South Sioux City, Nebraska. Atokad subsequently settled with the Facklers and was dismissed as a defendant. The petition generally alleged that Gnetzky and Atokad were responsible for the deaths of two racehorses owned by the Facklers. Specifically, the Facklers claimed five "causes of action" as follows:
(1) The "Indian Magic" claim. The Facklers allege that Genetzky and Atokad are responsible for the death of a 5-year-old gelding named "Indian Magic." The theory advanced by the Facklers is that Genetzky gave Indian Magic injections of Lasix and "Bute," two commonly used equine medications, on June 17, 1995. Indian Magic died during the night of June 19-20. The Facklers allege that an autopsy performed by the Veterinary Diagnostic Center of the University of Nebraska concluded that the death was caused by an infection resulting from the use of nonsterile procedures during the administration of an injection given to the horse by Genetzky, making him the cause of Indian Magic's death. The Facklers claim that Indian Magic's value, based upon his initial cost and expected earnings for the next 15 years, was $279,710.
(2) The second "cause of action" related only to Atokad and has been dismissed pursuant to the settlement.
3) The "Patricia Gold" claim. The Facklers allege that Genetzky and Atokad are responsible for the death of a 3-year-old mare named "Patricia Gold." Patricia Gold's value is alleged to be at least $850,000, based upon her initial cost, future earning capacity, and the projected birth of nine colts, expected to be worth at least $50,000 each. The Facklers allege that they asked Genetzky to administer a lubricating injection to Patricia Gold's knee. On June 4, 1995, Genetzky administered a (4) The "emotional distress" claim. The Facklers allege that the deaths of Indian Magic and Patricia Gold were caused by Genetzky and Atokad and resulted in "much emotional distress" for the Fackler family. This "cause of action" consists entirely of reiterations of how much the Facklers cared for the horses. The Facklers also claim that the horses, particularly Indian Magic, were very close to the Facklers' son. The Facklers' son, however, is not a party to the action.
substance called "Vetalog," which the Facklers allege is not a lubricant, but instead acts to freeze a joint. When the Facklers ran Patricia Gold, her knee shattered, and she was put down.
(5) The "fraudulent billing" claim. The Facklers allege that Genetzky billed the Facklers for services which were not performed and that as a result, Genetzky collected $252 from the Facklers to which he was not entitled.
On April 21, 1997, Genetzky moved for partial summary judgment on the emotional distress claim. On July 17, the district court granted partial summary judgment in favor of Genetzky as to the emotional distress claim, based on its determination that Nebraska law does not support a claim for emotional distress resulting from the death of an animal. On January 2, 1998, Genetzky filed a motion for summary judgment on the remaining claims. On April 15, the district court granted summary judgment in favor of Genetzky as to the Indian Magic and Patricia Gold claims, stating that the plaintiffs had failed to present evidence regarding a breach by Genetzky of the standard of care. On the same date, the district court entered summary judgment in favor of Genetzky on the fraudulent billing claim because there was no evidence of damages from the alleged overbilling.
In support of the motions for summary judgment, Genetzky offered 11 exhibits, and the Facklers offered exhibit 12 in opposition. These exhibits are summarized as follows:
Exhibits 1 and 2 are the pleadings. Exhibit 3, entered in support of the 1998 motion for summary judgment, is a copy of the summary judgment order for the 1997 summary judgment on the emotional distress claim. Exhibits 5 and 6 relate only to Atokad and are not relevant to this appeal. Exhibits 10 and 12 are affidavits from the Facklers in opposition to summary judgment, stating only their belief that issues of material fact remain to be decided.
Exhibit 4 is Genetzky's answers to interrogatories. Generally, it contains information about his bills to the Facklers and his insurance coverage.
Exhibit 7 is the deposition of Howard Fackler. The deposition is concerned primarily with the methods used by the Facklers to determine the alleged value of the horses. The deposition also contains Howard's opinion regarding the standard of care that Genetzky should have met, based on his observation that Genetzky had not cleaned Indian Magic's neck prior to administering an injection. Howard claims that the autopsy report for Indian Magic established Genetzky's negligence. Howard also offers his opinion regarding the cause of Patricia Gold's shattered knee. Howard concedes that he is neither a veterinarian nor a veterinary expert. Howard also concedes that the Facklers did not intend to call an expert witness to support the Patricia Gold claim. Howard testified that he had not paid $315 of Genetzky's bills.
Exhibit 8 is the deposition of Patricia Fackler. Patricia's testimony offers nothing beyond that of Howard, and she also concedes that Genetzky's bills are unpaid.
Exhibit 9 is the deposition of Genetzky. Genetzky's...
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