Gonzalez v. Union Pac. R.R. Co.

Citation282 Neb. 47,803 N.W.2d 424
Decision Date19 August 2011
Docket NumberNo. S–10–115.,S–10–115.
PartiesManuela Domingo Gaspar GONZALEZ, individually and as Personal Representative of the Estate of Efrain Ramos–Domingo, deceased, appellant,v.UNION PACIFIC RAILROAD COMPANY, appellee.
CourtSupreme Court of Nebraska
Syllabus by the Court

1. Motions to Dismiss: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing a dismissal order, an appellate court accepts as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom. but not the pleader's conclusions.

3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, the pleader must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face.

4. Actions: Evidence: Pretrial Procedure. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.

5. Damages: Pleadings: Proof. One who seeks to avoid the legal effect of a release of a claim for damages has the burden of pleading and proving the facts which entitle such party to relief.

6. Contracts: Fraud. In the absence of fraud, one who signs an instrument without reading it, when one can read and has had the opportunity to do so, cannot avoid the effect of one's signature merely because one was not informed of the contents of the instrument.

7. Releases: Fraud. A release of a claim for relief should not be upheld if fraud, deceit, oppression, or unconscionable advantage is connected with the transaction.

8. Releases: Fraud: Intent. If a releasor was under a misapprehension, not due to his or her own neglect, as to the nature or scope of the release, and if this misapprehension was induced by the misconduct of the releasee, then the release, regardless of how comprehensively worded, is binding only to the extent actually intended by the releasor. The release, to the extent it purports to release claims other than any understood by the releasor to be included, is ineffective to that extent.

9. Fraud: Words and Phrases. Overreaching, which is closely related to fraud, is the result of an inequality of bargaining power or other circumstances in which there is an absence of meaningful choice on the part of one of the parties.

10. Releases: Fraud. In circumstances affording an opportunity for overreaching, the law demands good faith on the part of a releasee and a full understanding on the part of the person injured as to his or her legal rights.

11. Pleadings: Appeal and Error. An appellate court reviews a district court's decision on a motion for leave to amend a complaint for an abuse of discretion.

12. Pleadings: Appeal and Error. A district court's denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.

13. Pleadings: Appeal and Error. It is an abuse of discretion for the district court to dismiss a suit on the basis of the original complaint without first considering and ruling on a pending motion to amend.

14. Rescission: Consideration: Words and Phrases. Tender or return of consideration is only a condition precedent in a case where rescission is by act of the party—a legal rescission. Tender or return is not a condition precedent in a case involving equitable rescission—an action to obtain a decree of rescission.

15. Rescission: Consideration: Fraud. A rescinding party is not required to tender or return consideration when the ground for rescission is fraud in the execution as opposed to fraud in the inducement.

16. Contracts: Releases: Consideration: Fraud. When a settlement or release is merely voidable, due to fraud in the inducement, the consideration should be tendered or returned as a condition precedent to maintaining an action on the original claim, But in a case of fraud in the execution, because there never was a contract or release, tender or return of the consideration is not required.

17. Rescission: Consideration: Fraud. While the power of a party to avoid a transaction for fraud or misrepresentation may be conditioned on an offer to return the consideration received, a failure to do so does not preclude avoidance if the consideration is merely money paid, the amount of which can be credited in partial cancellation of the injured party's claim, or constitutes a comparatively small part of the whole consideration.

18. Rescission: Consideration: Equity. The rule requiring tender or return of consideration is not absolute, is not to be strictly construed where restoration is impossible, and is to be applied in accordance with equitable principles.

19. Releases: Consideration: Fraud. A release procured by fraud will be set aside, without tender or return of the consideration, when the releasor, because of conditions of poverty, is unable to meet the tender-or-return requirement and the fraud remained undiscovered until after the consideration had been expended or otherwise put beyond the releasor's control.

20. Rescission: Fraud: Time. A party seeking rescission of a contract on the grounds of fraud, misrepresentation, or business coercion must do so promptly upon the discovery of the facts giving rise to the right to rescind.

21. Rescission: Fraud: Duress: Time. Whether one seeking to rescind a contract on the ground that it was procured by fraud or duress has acted with reasonable promptness is ordinarily a question of fact.

22. Rescission: Time: Equity. A delay in seeking to rescind a contract is unreasonable only if a litigant has been guilty of inexcusable neglect and, during the lapse of time, circumstances have changed such that permitting rescission would work inequitably to the disadvantage or prejudice of the other party.

23. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

24. Fraud: Judgments. The existence of a fiduciary duty and the scope of that duty are questions of law for a court to decide.

25. Fraud: Pleadings. The allegation of the existence of a confidential or fiduciary relationship is a legal conclusion only and insufficient to raise any issue of fact.

26. Fraud: Words and Phrases. A fiduciary duty arises out of a confidential relationship which exists when one party gains the confidence of the other and purports to act or advise with the other's interest in mind.

27. Fraud: Undue Influence: Equity. In a confidential or fiduciary relationship in which confidence is rightfully reposed on one side and a resulting superiority and opportunity for influence are thereby created on the other, equity will scrutinize the transaction critically, especially where age. infirmity, and instability are involved, to see that no injustice has occurred.

28. Fraud: Undue Influence. Superiority of bargaining power alone does not create a fiduciary duty, because there must also be an opportunity to exercise undue influence.

29. Pretrial Procedure: Appeal and Error. Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.

30. Courts: Evidence: Trade Secrets. The law gives trial courts broad latitude to grant protective orders to prevent disclosure of materials for many types of information, including, but not limited to, trade secrets or other confidential research, development, or commercial information.

31. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc. § 6–326(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.

32. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the amount of the fee is addressed to the trial court's discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion.

33. Attorney Fees: Pretrial Procedure. Attorney fees are a permissible sanction for a discovery violation.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, Scottsbluff, and Horacio J. Wheelock, of Law Office of Horacio Wheelock, Omaha, for appellant.Mark E. Novotny, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.GERRARD, J.

Thirteen-year-old Efrain Ramos–Domingo (Efrain) was killed by a Union Pacific Railroad Company (Union Pacific) train in Schuyler, Nebraska, on July 27, 2005. Two days later, Efrain's mother, Manuela Domingo Gaspar Gonzalez (Manuela), was approached by a Union Pacific claims representative and signed a document releasing Union Pacific from liability for Efrain's death, in exchange for $15,000. The primary question presented in this appeal is whether Manuela has alleged facts that would show the purported release to be void or voidable.


Manuela filed a complaint in district court on November 27, 2006, alleging claims for wrongful death and breach of fiduciary duty. Specifically, Manuela alleged that the design of the pedestrian crossing at which Efrain had been killed, and the way in which Union Pacific operated trains there, had been negligent and that Union Pacific's negligence had caused Efrain's death.

But Manuela also alleged facts with respect to her release of Union Pacific from liability. Manuela alleged that 2 days after Efrain's death, a Union...

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