Mason State Bank v. Sekutera
| Decision Date | 19 October 1990 |
| Docket Number | No. 88-610,88-610 |
| Citation | 236 Neb. 361,461 N.W.2d 517 |
| Court | Nebraska Supreme Court |
| Parties | , 13 UCC Rep.Serv.2d 279 MASON STATE BANK, Appellee and Cross-Appellant, v. Alvin E. SEKUTERA, Appellant and Cross-Appellee. |
Syllabus by the Court
1. Default Judgments: Pleadings: Appeal and Error. Whether default judgment should be entered because of a party's failure to timely respond to a petition rests within the discretion of the trial court, and an abuse of discretion must affirmatively appear to justify a reversal on such a ground.
2. Trial: Pretrial Procedure. Under Neb.Ct.R. of Discovery 36(b) (rev.1986), a trial court has discretion to permit withdrawal or amendment of admissions resulting from the failure to timely respond to a request for such when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him or her in maintaining his or her action or defense on the merits.
3. Uniform Commercial Code: Security Interests: Notice: Pleadings: Proof. Compliance with the notice provisions of Neb.U.C.C. § 9-504(3) (Reissue 1980) is a condition precedent to a secured creditor's right to recover a deficiency, placing upon the creditor the burden of pleading and proving such compliance; failure to plead and prove compliance is an absolute bar to the recovery of a deficiency.
4. Trial: Pretrial Procedure. Ordinarily, the issues specified at a pretrial conference control the issues on which a case is tried.
5. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment is not a final order and thus not appealable, when both parties have moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and can determine the controversy, making an order specifying the facts that appear without substantial controversy and directing such further proceedings as it deems just.
6. Summary Judgment. A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact or as to the ultimate inferences which may be drawn from the material facts and the moving party is entitled to judgment as a matter of law.
7. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. After the moving party has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.
Appeal from the District Court for Sherman County: DEWAYNE WOLF, Judge. Reversed and remanded with direction.
Raymond A. Hervert, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.
John O. Sennett and Brad Roth, of Sennett & Roth, Broken Bow, for appellee.
On November 23, 1984, defendant-appellant, Alvin E. Sekutera, executed two promissory notes payable to the order of plaintiff-appellee, Mason State Bank, one in the amount of $48,300 and the other in the amount of $49,936.38. Both of the notes were due on April 23, 1985. To secure these notes, Sekutera and his wife granted Mason State Bank a security interest in certain cattle.
After Sekutera defaulted on his promissory notes and pursuant to a replevin action which it had filed, Mason State Bank took control of the cattle which secured its advances to Sekutera. On June 17, 1986, Mason State Bank's attorney sent a letter to the Sekuteras, advising them that the cattle securing this debt would be sold on July 27, 1986. However, the cattle were instead sold a month earlier, on June 27, 1986.
After selling the cattle, Mason State Bank applied the sale proceeds to the notes. On May 4, 1987, Mason State Bank commenced this action for the amount remaining unpaid on the notes. On June 26, 1987, Sekutera demurred to Mason State Bank's petition. Apparently on October 16, 1987, the district court entered an order respecting Sekutera's demurrer, which reads in part:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
A. The DEMURRER of [Sekutera] is overruled.
B. [Mason State Bank] separately number and state the causes of action of [Mason State Bank] on each of [its] promissory notes.
C. [Mason State Bank] is given 10 days to file an amended petition.
D. [Sekutera] is given 20 days thereafter to plead or answer [Mason State Bank's] amended petition.
On October 20, 1987, Mason State Bank filed an amended petition, and on January 12, 1988, it filed a motion for a default judgment "for the reason that no Answer or other pleading ha[d] been filed in behalf of [Sekutera]." On February 4, 1988, Sekutera filed an answer to Mason State Bank's amended petition, and at a February 5, 1988, hearing on its motion for default judgment, the district court found that Mason State Bank's motion was "moot," as by then Sekutera had answered the petition.
On May 5, 1988, Mason State Bank notified the district court that it had, on the previous day, served a request for admissions upon Sekutera. The document recited in part:
Mason State Bank ... requests that [Sekutera], within thirty (30) days from the date of service herein, or forty-five (45) days from the service of summons, pursuant to Nebraska Discovery Rule 36, make the following admissions:
....
REQUEST FOR ADMISSIONS NO. 12: That you were given commercially reasonable notice of the sale of the cattle....
On June 10, 1988, after receiving no response from Sekutera, Mason State Bank filed a motion which sought an order declaring that the foregoing request, among others, be deemed admitted.
On June 13, 1988, Mason State Bank filed a motion for summary judgment, and on June 14 it filed a notice of hearing indicating that its motion for summary judgment would be heard on July 8, 1988. A copy of this notice was mailed to Sekutera's attorney on June 13, 1988.
On July 7, 1988, Sekutera filed a pleading stating that on July 6, 1988, he had filed his answers to Mason State Bank's request for admissions, asked the district court to deny Mason State Bank's motion that its request be deemed admitted, and also asked the district court to "allow" his answers to Mason State Bank's request. In addition, on July 8, 1988, Sekutera also filed a motion for summary judgment.
Following a July 8, 1988, hearing on the parties' motions for summary judgment, the district court filed a journal entry which states the following in part:
[T]he Court having taken under advisement [Mason State Bank's] Motion to have Requests for Admission admitted, and [its] and [Sekutera's] Motions for Summary Judgment, hereby finds:
1. That [Mason State Bank's] Motion to have answers to Requests for Admission deemed admitted is hereby overruled, and; [Sekutera's] Response to [Mason State Bank's] Motion, for good cause shown, is allowed and [Sekutera's] ANSWERS TO REQUEST FOR ADMISSIONS ... are allowed to be filed out of time, and;
2. That [Mason State Bank's] Motion for Summary Judgment should be and is hereby sustained and granted, and;
3. That [Sekutera's] Motion for Summary Judgment should be and is hereby overruled.
The court then entered a $57,397.22 deficiency judgment in favor of Mason State Bank.
Sekutera appeals and asserts, in summary, that the district court erred (1) in failing to find that the notice Mason State Bank provided him pursuant to Neb.U.C.C. § 9-504(3) (Reissue 1980) was insufficient and (2) in thus failing to enter summary judgment in his favor. Mason State Bank cross-appeals, asserting that the district court erred (1) in failing to sustain its motion for default judgment and (2) in overruling its motion to have its requests for admissions deemed admitted.
We deal first with Mason State Bank's cross-appeal.
Default Judgment.
Mason State Bank first argues that the district court erred in failing to sustain its motion for a default judgment. While Mason State Bank asserts that the district court "could" have sustained its motion for a default judgment because of Sekutera's failure to timely plead to or answer its amended petition, as this court stated in Anest v. Chester B. Brown Co., 169 Neb. 330, 333, 99 N.W.2d 615, 618 (1959), "[s]uch matters rest largely within the discretion of the trial court, and an abuse of discretion must affirmatively appear to justify a reversal on such a ground." See, also, Starr v. King, 234 Neb. 339, 451 N.W.2d 82 (1990). The record contains no evidence of such an abuse of discretion. Consequently, Mason State Bank's first assignment of error in its cross-appeal is without merit.
Request for Admissions.
The second concern is whether the district court ruled properly concerning Mason State Bank's request for admissions.
In that connection we first note that Mason State Bank's motion to have its request deemed admitted was unnecessary. Under Neb.Ct.R. of Discovery 36 (rev.1986), Mason State Bank's requests were automatically deemed admitted when Sekutera failed to respond within the 30-day period which was applicable in this case.
Rule 36(a) states in relevant part:
A party may serve upon any other party a written request for the admission....
Each matter of which an admission is requested shall be separately set forth by the party making the request, and shall be repeated by the responding party in the answer or objection thereto. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the...
To continue reading
Request your trial
-
Jantzen, Application of
...be compared to a trial court's discretion extending the time in which to file an untimely answer or reply. See, Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517 (1990); Greenwood v. Cobbey, 24 Neb. 648, 39 N.W. 833 (1888). While the determination of whether a party in default may ......
-
Buttercase v. Davis
...plead or answer after a court-ordered deadline, the plaintiff is not necessarily entitled to a default judgment. For example, in Mason State Bank v. Sekutera ,31 we upheld the denial of a default judgment even though the promisor failed to plead or answer within 20 days after the bank filed......
-
Buttercase v. Davis
...fact, we expressly noted that a party in default may be permitted to answer at any time before judgment is issued.[38] In this case, as in Sekutera and Anest, there is no evidence that the district court abused its discretion in denying a default judgment. Buttercase is correct that Davis f......
-
Tymar, LLC v. Two Men & A Truck
...a party's failure to answer or object to a request for admission. City of Ashland v. Ashland Salvage, supra; Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517 (1990). We have noted, however, that Rule 36 is not self-executing. Thus, a party that seeks to claim another party's admis......