Meyer Bros., Inc. v. Travelers Ins. Co.
| Decision Date | 28 June 1996 |
| Docket Number | No. S-94-853,S-94-853 |
| Citation | 551 N.W.2d 1,250 Neb. 389 |
| Court | Nebraska Supreme Court |
| Parties | MEYER BROTHERS, INC., a Nebraska Corporation, Appellant, v. The TRAVELERS INSURANCE COMPANY, a Corporation, et al., Appellees. |
Syllabus by the Court
1. Judgments: Appeal and Error. An appellate court has an obligation to reach conclusions on questions of law independent of the trial court's ruling.
2. Pleadings: Demurrer: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader.
3. 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.
4. Limitations of Actions: Deceptive Trade Practices: Fraud. An action must be commenced within 4 years for violation of the Uniform Deceptive Trade Practices Act or for fraud.
5. Limitations of Actions: Pleadings. For limitations purposes, an amended pleading in the same cause of action ordinarily relates back to the original pleading.
6. Limitations of Actions: Pleadings. If a petition alleges a cause of action ostensibly barred by the statute of limitations, such petition, in order to state a cause of action, must show some excuse tolling the operation and bar of the statute.
7. Pleadings: Demurrer: Appeal and Error. One must stand on a pleading against which a demurrer has been sustained in order to preserve the right to appeal the decision on the particular demurrer.
8. Pleadings. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made.
9. 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.
David H. Hahn, of Hahn Law Office, Lincoln, for appellant.
Donald R. Witt, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee First National Bank & Trust.
William F. Davis, Nebraska City, for appellees Larry Volkmer and John Stukenholtz.
Richard H. Hoch, of Hoch & Steinheider, Nebraska City, for appellee LeRoy Kreifels.
This action was filed on June 17, 1988, in the Otoe County District Court. Meyer Brothers, Inc., the appellant, sought, and was denied, a temporary restraining order, a permanent injunction, and damages against The Travelers Insurance Company (Travelers), First National Bank and Trust of Syracuse ( FNB & T), Larry Volkmer, John Stukenholtz, LeRoy Kreifels, Paul F. Baltensperger, and Beverly J. Baltensperger, the appellees, for material provided and labor performed in the planting of crops in 1988.
A third amended petition was filed on July 19, 1993. It stated a theory of recovery (unfair and deceptive trade practices) and facts (that the appellees "acted in concert") not included in the original and previous amended petitions. The new cause of action was based on facts that occurred more than 5 years prior to the filing of the third amended petition. The statute of limitations for filing an action for unfair and deceptive trade practices is 4 years. If the third amended petition alleged new facts, it was barred by the statute of limitations. If it was based on the same facts alleged in the action filed in 1988, it was not so barred. The issue, then, was whether the third amended petition related back to the original petition filed in 1988, in which case, the action would be The appellant appealed the order of August 15, 1994, to the Nebraska Court of Appeals, arguing that the trial court erred in finding that the third amended petition did not relate back to the original petition. We removed the case from the Court of Appeals' docket pursuant to our power to regulate the caseloads of lower courts. We affirm the judgment of the trial court.
within the limitations period. The trial court sustained demurrers by three of the appellees to the third amended petition. The appellant was given 30 days from February 8, 1994, to file a fourth amended petition. On March 15, the appellant filed a motion to extend time for filing its fourth amended petition. On August 15, the district court sustained the motion for summary judgment filed by one of the appellees, denied the appellant's motion to file a fourth amended petition, and dismissed the action with prejudice.
Meyer Brothers' original petition, filed on June 17, 1988, sought an injunction against the appellees, restraining them from preventing the appellant from exercising the rights granted to it under a farm lease. An amended petition, filed September 2, 1988, added a third cause of action for fraud or misrepresentation, but it was directed only against appellees Paul Baltensperger and FNB & T. A second amended petition, filed May 1, 1989, constituted an amendment to the second cause of action of the original petition and, more specifically, simply alleged the damages to be recovered by the appellant in the event it prevailed in the action for an injunction.
The third amended petition, filed July 19, 1993, alleged as to the acts which occurred in 1988 that "[t]he actions of [the appellees], acting in concert was an unfair and deceptive trade practice act" which caused damages to the appellant.
Three of the appellees filed demurrers, which were taken under advisement on November 30, 1993. On February 8, 1994, the trial court sustained the demurrers and gave the appellant 30 days to file a fourth amended petition. On March 2, appellee Kreifels filed a motion for summary judgment to the third amended petition as violative of the statute of limitations.
On March 15, 1994, the appellant filed a motion to extend the time to file a fourth amended petition. The appellees objected to the motion, and in a journal entry dated August 15, 1994, the court sustained the objections interposed by the appellees to the appellant's motion to file a fourth amended petition and denied the appellant's motion. The court further granted appellee Kreifels' motion for summary judgment, which motion was interposed to the third amended petition. The court then dismissed the action with prejudice at the appellant's costs.
The appellant filed an appeal of the August 15, 1994, order to the Court of Appeals. We removed the case from the Court of Appeals' docket pursuant to our power to regulate the caseloads of lower courts.
The appellant originally assigned as error:
1. The court erred in determining that the filing of the third amended petition dismissed, with prejudice, any causes of action not set forth in the third amended petition [sic].
2. The court erred in failing to allow the plaintiffs to file a fourth amended petition.
3. The court erred in granting motions for summary judgment based upon the statute of limitations.
In its reply brief however, the appellant states that the sole issue is whether the third amended petition related back to previous petitions.
In summary, the appellant objects to the court's sustaining of the demurrer on February 8, 1994, and the court's order of August 15, 1994, which dismissed the action after granting appellee Kreifels' motion for summary judgment on the third amended petition and refused appellant's request to file a fourth amended petition.
An appellate court has an obligation to reach conclusions on questions of law independent of the trial court's ruling. Hearon v. May, 248 Neb. 887, 540 N.W.2d 124 (1995); Lincoln Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d 898 (1995).
When reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept as true the conclusions of the pleader. Leader Nat. Ins. v. American Hardware Ins., 249 Neb. 783, 545 N.W.2d 451 (1996); Vowers & Sons, Inc. v. Strasheim, 248 Neb. 699, 538 N.W.2d 756 (1995); Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995).
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. Blackbird v. SDB Investments, 249 Neb. 13, 541 N.W.2d 25 (1995); Hearon, supra; Oliver v. Clark, 248 Neb. 631, 537 N.W.2d 635 (1995); Medley v. Davis, 247 Neb. 611, 529 N.W.2d 58 (1995).
According to the appellant, "[t]he sole issue in this appeal is whether the plaintiff/appellant's third amended petition related back to previous petitions." (Emphasis omitted.) Reply brief for appellant at 1.
The original petition in 1988 alleged a cause of action for a temporary restraining order, a permanent injunction, and damages for material provided and labor performed in the planting of crops in 1988. The third amended petition filed in 1993 stated that the actions of the appellees, "acting in concert was an unfair and deceptive trade practice act."
An action must be commenced within 4 years for violation of the Uniform Deceptive Trade Practices Act, Neb.Rev.Stat. § 87-303.10 (Reissue 1994), or for fraud, Neb.Rev.Stat. § 25-207(4) (Reissue 1995).
For limitations purposes, an amended pleading in the same cause of action ordinarily relates back to the original pleading. St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993); West Omaha Inv. v. S.I.D. No. 48, 227...
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