Kuhn v. Wells Fargo Bank of Nebraska

Decision Date28 August 2009
Docket NumberNo. S-08-141.,S-08-141.
PartiesLeon Dean KUHN, Personal Representative of the Estate of Ashton Hasebrook, appellee, v. WELLS FARGO BANK OF NEBRASKA, N.A., appellee, TJ Lauvetz Enterprises, Inc., defendant and third-party plaintiff, appellant, and O'Keefe Elevator Company, Inc., third-party defendant, appellee.
CourtNebraska Supreme Court

Justin R. Herrmann and Jeffrey H. Jacobsen, of Jacobsen, Orr, Nelson, Lindstrom & Holbrook, P.C., L.L.O., Kearney, for appellant.

Michael F. Scahill and Terry J. Grennan, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Wells Fargo Bank of Nebraska, N.A.



This appeal arises from a procedurally complicated tort case involving an injured plaintiff, the owner of the building in which the plaintiff was injured, the bank that the plaintiff was in the building to patronize, and the installer of the elevator in which the plaintiff fell. The bank was dismissed from the case, and the remaining parties apparently settled, although the settlement agreement is not in the record. The question presented, on further review to this court, is whether the building owner's appeal from the dismissal of its indemnity claim against the bank is moot because the appellate record does not contain the terms of the building owner's settlement with the plaintiff. We conclude that the appeal is not moot. We further conclude that the district court erred in dismissing the bank from the case.


TJ Lauvetz Enterprises, Inc. (Lauvetz), owned Burlington Center, a building in Hastings, Nebraska, containing approximately 55,000 rentable square feet. Lauvetz leased a little less than half that space to what is now Wells Fargo Bank of Nebraska, N.A. (the Bank), on the first floor and on the "garden," or basement, level of the building. The rest of the building contained other offices, including Lauvetz'.

Lauvetz' lease agreement with the Bank provided, within the "Utilities and Services" section, that Lauvetz "shall furnish passenger elevator service whenever the Building is open." Lauvetz "shall have the right to stop the operation of said elevators whenever alterations, improvements or repairs therein or in the machinery or appliances connected therewith shall be necessary or desirable and shall not be liable for damages for any such stoppage of service." And the "indemnity" section, paragraph 20 of the lease, provided, in relevant part:

With the exception of those claims arising out of [Lauvetz'] gross negligence or willful misconduct, ... [the Bank] shall indemnify [Lauvetz] and hold it harmless from any claim or damage arising out of any injury, death or property damage occurring in, on or about the Property, the Building, the Leased Premises and appurtenances thereto to [the Bank] or an employee, customer or invitee of [the Bank]. With the exception of those claims arising out of [the Bank's] negligence or willful misconduct, ... [Lauvetz] shall indemnify [the Bank] and hold it harmless from any claim or damage arising out of any injury, death or property damage occurring in, on or about the Property, the Building, the Leased Premises and appurtenances thereto to [Lauvetz] or any employee, customer or invitee of [Lauvetz].

(Emphasis supplied.)


The elevators in the building had been malfunctioning by reporting to the wrong floors. A repairperson from O'Keefe Elevator Company (O'Keefe) instructed Lauvetz to implement a new procedure for elevator use over the weekend. The old procedure had been to take the elevators to the ground floor and turn them off. To help O'Keefe diagnose the problem, the repairperson suggested that the malfunctioning elevator be turned to "independent service" over the weekend of March 1, 2003. An elevator on independent service does not respond to calls from hallway buttons. Instead, the elevator remains parked with the doors open until a floor is selected on the inside panel and the "close door" button is held down. The elevator will then travel to the selected floor, where it will again remain parked with the doors open.

In addition to helping O'Keefe diagnose the problem, setting the elevator to independent service would allow the building's janitors to use it over the weekend. That was why it was decided not to put a sign or caution tape in front of the elevator. But turning an elevator to independent service can also cause the elevator's self-leveling device to not operate properly.

The new independent service procedure began on a Friday. Early the next day, Ashton Hasebrook, who was 90 years old, visited the Bank to get a certificate of deposit from his safe deposit box, which was located in the Bank's basement. He went to the elevators to go back upstairs and found one standing open. He stepped into the elevator, fell, and broke his hip. Hasebrook testified that the elevator car was "about a foot" below floor level, although other observers described the difference as being less than 2 inches after the accident.


Hasebrook sued Lauvetz and the Bank in district court, seeking damages for medical expenses, pain and suffering, disability, and future medical care. Lauvetz and the Bank filed cross-claims against one another, seeking indemnity under paragraph 20 of the lease. And Lauvetz filed a third-party complaint against O'Keefe. Hasebrook later died, and the claim was revived by Leon Dean Kuhn, the personal representative of his estate. For the sake of clarity, the estate is also referred to simply as "Hasebrook."

In 2006, the Bank and Lauvetz each filed motions for summary judgment. The district court found that the Bank could not be liable to Hasebrook because it did not control the elevator. The court reasoned that the lease agreement did not shift the duty Lauvetz owed to Hasebrook from Lauvetz to the Bank. The court further found that paragraph 20 of the lease was "ambiguous and does not clearly set forth that Lauvetz should be indemnified by [the Bank]." Therefore, the court found that Lauvetz' cross-claim against the Bank did not state a claim upon which relief could be granted. The court denied Lauvetz' motion for summary judgment and granted the Bank's. The Bank was dismissed as a party, with prejudice. Lauvetz filed a notice of appeal, but the appeal was dismissed without opinion for lack of a final, appealable order.1

The claims left pending were Hasebrook's against Lauvetz, and Lauvetz' against O'Keefe. In 2008, Hasebrook Lauvetz, and O'Keefe filed a joint motion and stipulation for dismissal with prejudice. Apparently, the various claims were settled, although the settlement itself is not in the record. The district court granted the motion and dismissed the remaining claims. Lauvetz again filed an appeal from the 2006 summary judgment order, contending that the court had erred in granting summary judgment for the Bank and dismissing it from the case.

The Nebraska Court of Appeals dismissed the appeal as moot.2 The Court of Appeals explained that the final order entered in 2008 dismissed Hasebrook's complaint without any finding as to liability or an award of damages. Although the order theoretically preserved Lauvetz' cross-claim against the Bank, the Court of Appeals reasoned that without a finding of liability or damages against Lauvetz, there was no basis for indemnity. Although Lauvetz asserted at oral argument that the case had been settled, the Court of Appeals found that to be irrelevant, because there was no evidence in the record of any settlement agreement or payment pursuant to such an agreement. The court concluded that because of the 2008 order dismissing Hasebrook's claim against Lauvetz, any opinion on Lauvetz' right to indemnity from the Bank would be moot.3 We granted Lauvetz' petition for further review.


On further review, Lauvetz assigns that the Court of Appeals erred in determining that the district court's 2008 order dismissing Hasebrook's complaint as to Lauvetz rendered Lauvetz' appeal of its cross-claim against the Bank moot.

In its brief to the Court of Appeals, Lauvetz assigned, consolidated and restated, that the district court erred in (1) finding that Lauvetz could not contractually require indemnification from the Bank for damages arising from an injury occurring to the Bank's customer on the leased premises and arising from Lauvetz' ordinary negligence, (2) finding that the indemnification provision of the lease was ambiguous and did not clearly set forth that Lauvetz should be indemnified by the Bank, (3) failing to apply the indemnification provision as written, and (4) overruling Lauvetz' motion for summary judgment and sustaining the Bank's.

Lauvetz also assigned error with respect to the court's finding that Lauvetz, not the Bank, had a legal duty to Hasebrook to maintain a safe elevator. But Lauvetz did not argue that in his brief, so it does not need to be addressed.4


Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.5 When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.6

In reviewing 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.7

The meaning of a contract and whether a contract is ambiguous are questions of law.8 The meaning of a statute is also a question of law.9 When reviewing questions of law, an appellate court has an obligation to resolve the questions...

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