Henderson v. Forman
| Decision Date | 26 June 1992 |
| Docket Number | No. S-89-1250,S-89-1250 |
| Citation | 486 N.W.2d 182,240 Neb. 939 |
| Parties | Sidney R. HENDERSON and Peggy S. Henderson, Husband and Wife, Appellants, v. Edward P. FORMAN and Barbara J. Forman, Husband and Wife, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jurisdiction: Appeal and Error. An appellate court must raise on its own motion the question of jurisdiction over an appeal when the parties do not present the question.
2. Judgments: Appeal and Error. In the absence of a judgment or order finally disposing of a case, an appellate court is without jurisdiction to act and must dismiss the appeal.
3. Final Orders: Words and Phrases. Generally, an order is final if it disposes of the whole merits of the case and leaves nothing for further consideration by the court.
4. Final Orders: Words and Phrases. When an order leaves substantial rights of the parties to an action undetermined and the cause is retained for further action, the order is not final.
5. Final Orders: Appeal and Error. An order dismissing one theory of recovery, while a second theory of recovery arising out of the same cause of action remains pending for trial, is not an appealable, final order.
6. Contracts: Sales: Fraud: Damages: Final Orders: Appeal and Error. An action for damages arising from a contract of sale allegedly induced by several instances of fraud presents a single cause of action, and an order barring the action as it relates to one such instance only is not an appealable, final order.
7. Limitations of Actions: Torts: Fraud. The limitations period applicable to a tort action for fraud is 4 years and is deemed to accrue upon discovery of the fraud.
8. Limitations of Actions: Words and Phrases. As used in reference to a statute of limitations, "discovery" occurs when an individual acquires knowledge of a fact which existed but which was previously unknown to the discoverer.
9. Limitations of Actions: Fraud. In the context of a fraud action, the limitations period begins to run upon discovery of the facts constituting the fraud, or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery.
10. Fraud: Proof. To recover in an action for fraud based upon a misrepresentation of fact, the plaintiff must prove that (1) the defendant made a representation of a material fact; (2) the representation was false; (3) the representation, when made, was known to be false or was made recklessly as a positive assertion without knowledge concerning the truth of the representation; (4) the representation was made with the intention that the plaintiff would rely on it; (5) the plaintiff reasonably relied on the representation; and (6) 11. Actions. A cause of action cannot accrue before the occurrence of all the elements which constitute a defendant's violation of a plaintiff's judicially protected right.
as the result of such reliance, the plaintiff suffered damage.
Dennis L. Arfmann of Nichols, Douglas, Kelly & Arfmann, P.C., Scottsbluff, and Francis L. Winner, Omaha, for appellants.
William P. Mueller and J. Blake Edwards of McGinley, Lane, Mueller, O'Donnell & Reynolds, P.C., Ogallala, for appellees.
This is a civil suit in which the plaintiffs-appellants, Sidney R. and Peggy S. Henderson, seek damages allegedly resulting from defects in the roof and drainage system of a motel sold to them by the defendants-appellees, Edward P. and Barbara J. Forman. In their petition, the plaintiffs originally asserted claims based upon breach of express and implied warranties and fraud.
The case was tried in the district court for Scotts Bluff County. The trial court directed a verdict in favor of the defendants at the close of the plaintiffs' evidence. On appeal, this court upheld the trial court's decision as to the breach of warranty claims, but reversed as to the fraud claims, holding that the alleged misrepresentations presented a triable issue for the jury. See Henderson v. Forman, 231 Neb. 440, 436 N.W.2d 526 (1989) ( Henderson I ).
Upon remand the defendants moved for a separate hearing on the statute of limitations issue. See Neb.Rev.Stat. § 25-221 (Reissue 1989). The trial court granted the motion and held an evidentiary hearing. Based upon evidence presented at the hearing, the trial court determined that the plaintiffs' claim concerning the roof was barred by the statute of limitations, but that the claim regarding the drainage system was not. After the trial court overruled their motion for a new trial, the plaintiffs perfected an appeal to this court.
On June 29, 1980, the Hendersons signed a contract to purchase the Candlelight Inn and Lounge, a motel in Scottsbluff, Nebraska, from the Formans. Prior to signing the contract the Hendersons visited the premises several times. During one such visit in early June 1980, the Formans, the Hendersons, and a Realtor inspected the basement level of the motel. The Hendersons noticed that the wallpaper was wet and coming off the wall and asked the Formans about it. Edward Forman allegedly attributed the problems to a leaky ice machine and the inferior quality of the wallpaper glue, and assured them he solved the problem with the ice machine by attaching an extension hose and would arrange for the replacement of the wallpaper and glue.
Sidney Henderson and Forman also inspected a room containing some of the motel's mechanical equipment. Henderson asked Forman about a sump pump which he noticed was full of water. Forman admitted he did not know exactly how it worked, but told Henderson to be careful when backflushing the pool or it would overflow. Either that same day or the next, Henderson asked Forman if there were any problems with water in the basement. Forman allegedly stated that a drainage system installed around the perimeter of the motel would keep the basement dry.
Henderson and Forman also ascended the roof of the motel. Henderson testified that when he asked about the condition of the roof, Forman responded that it was "in good shape, there were no problems." Henderson also testified that when Forman mentioned making some minor repairs to the roof, Henderson asked for and received permission to return with the repairman who did the work and make a further inspection. Forman testified that he told Henderson and the repairman, Forrest Rose, Sr., subsequently examined the roof. Rose told Henderson that the roof was old and probably needed to be replaced. When Henderson reported Rose's comments to Forman, Forman allegedly stated that Rose was just looking for work and again assured Henderson that the roof was in good shape. Still uneasy, Henderson contacted another roofer, Charlie Schank, who looked at the roof and concluded that it was "solid." A friend of Forman's who Forman said "knew something about roofs" also looked at the roof and told Henderson it looked fine. Finally, in response to Henderson's inquiry, the Realtor told Henderson that he assumed the roof was all right.
Henderson the roof was "marginal" and needed work.
Following a severe hailstorm in June 1982, the Hendersons noticed some leaks in the hallway and discoloration of the ceilings in some of the rooms. Henderson and Forrest Rose, Jr., went up on the roof to survey the storm damage and noticed that water was "ponding." Rose built up the center of the roof in an attempt to cause the water to run off, but told Henderson that the work was merely a "patch job" and that the roof needed major repairs and possibly replacement. Henderson testified that he did not notice ponding on the roof prior to the hailstorm of June 1982.
Problems associated with the roof became more severe in December 1983. Several of the ceilings began to bow and a few even collapsed under the weight of the water leaking in. Because repairs were needed, the Hendersons called their insurance company, which in turn hired an engineer to determine the cause of the problems. The engineer examined the interior structures of the roof and concluded that it was defectively designed. He testified that the joists used to support the roof were too small and spaced too far apart, causing the roof to sag. He also noted that the roof was improperly ventilated, resulting in deterioration of the materials used to construct it. Based upon these conclusions, the insurance company denied coverage and informed the Hendersons of its position in early April 1984. Henderson testified that prior to that time he had no idea the roof was defectively designed. The Hendersons filed their petition against the Formans on April 3, 1986.
The Hendersons argue that the trial court erred in (1) finding that the limitation period began to run from the time of the alleged misrepresentation rather than from the discovery of the fraud, or, alternatively, (2) finding that the Hendersons should reasonably have discovered the fraud prior to April 2, 1982.
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