Vann v. Norwest Bank Nebraska, N.A.

• Decision Date: 02 April 1999
• Docket Number: No. S-98-139,S-98-139
• Citation: 256 Neb. 623,591 N.W.2d 574
• Parties: Howard D. VANN, Appellant, v. NORWEST BANK NEBRASKA, N.A., a National Banking Association, Appellee.
• Court: Nebraska Supreme Court

Page 574

591 N.W.2d 574

256 Neb. 623

Howard D. VANN, Appellant, v.NORWEST BANK NEBRASKA, N.A., a National Banking Association, Appellee.

No. S-98-139.

Supreme Court of Nebraska.

April 2, 1999.

Syllabus by the Court

1.Res Judicata.The applicability of the doctrine of res judicata presents a question of law.

2.Judgments: Appeal and Error.In reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3.Res Judicata: Judgments: Under the traditional rule of res judicata, sometimes called claim preclusion, any rights, facts, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated by the parties and privies.

4.Res Judicata: Judgments: Except in special cases, the plea of res judicata applies not only to points upon which the court was actually required by the parties to form an opinion, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time.

5.Contracts: Pleadings: Claims.A cross-claim against a coparty must arise out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or be connected with the subject of the action.

Larry A. Jobeun, of Walsh, Fullenkamp & Doyle, Omaha, for appellant.

Donald J. Pavelka, Jr., of Hansen, Engles & Locher, P.C., Omaha, for appellee.

Before HENDRY, C.J., WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Howard D. Vann(Vann) commenced this action for an accounting to determine the fairness and reasonableness of fees and expenses charged to him pursuant to a written agreement between Vann and Norwest Bank Nebraska, N.A.(Norwest).The district court sustained Norwest's motion for summary judgment, finding that res judicata barred Vann's cause of action.

SCOPE OF REVIEW

The applicability of the doctrine of res judicata to this case presents a question of law.See, In re Estate of Wagner, 246 Neb. 625, 522 N.W.2d 159(1994);Petska v. Olson Gravel, Inc., 243 Neb. 568, 500 N.W.2d 828(1993);L.J. Vontz Constr. Co. v. City of Alliance, 243 Neb. 334, 500 N.W.2d 173(1993).

In reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798(1999).

FACTS

In November 1989, Vann and R. Thomas Vann(the Vanns) entered into a purchase agreement with Citi-Omaha Partners II (Partners II) for the construction and sale of a 36-unit apartment building and related improvements (the apartments) on a lot owned by the Vanns.

On January 26, 1990, the Vanns obtained a 1-year construction loan from Norwest.The Vanns executed and delivered a promissory note to Norwest that was secured by a deed of trust to the apartments.In August, Partners II took possession of the apartments but did not close on the purchase agreement.

Subsequently, Partners II commenced a declaratory judgment action against the Vanns, seeking a declaration of the rights, duties, and legal relations with regard to the purchase agreement and a reasonable time in which to close on the purchase agreement.Partners II also prayed for a judgment for the cost of repairing alleged construction defects of the apartments.

In early September 1993, Partners II filed bankruptcy proceedings in the U.S. Bankruptcy Court for the Central District of California, Los Angeles Division.The Vanns agreed that any expenses or fees incurred by Norwest in relation to the Partners II bankruptcy would be considered part of the Vanns' indebtedness to Norwest.Norwest subsequently secured relief from the automatic stay in the bankruptcy court and proceeded to reschedule a trustee's sale of the apartments for July 18, 1994.

Prior to the trustee's sale, the Vanns petitioned the district court in the Partners II declaratory judgment action to appoint a receiver to manage the apartments and to collect the rents and profits during the litigation.Norwest intervened and also filed an application for the appointment of a receiver.On July 1, 1994, the court appointed a receiver to take possession and control of the apartments and authorized the receiver to enforce or modify the leases; collect the rents and profits on the property; and apply the same to expenses incurred in the protection, management, and operation of the property.The receiver was directed to deliver to Norwest on a monthly basis the rents and profits from the apartments remaining after payment of the expenses, which rents and profits were to be applied to the indebtedness secured by the apartments.

On July 18, 1994, Norwest conducted a trustee's sale, and the apartments were purchased by Vann.Subsequently, Norwest filed a motion for an order allowing it to deposit $16,170.10 with the receiver as the amount remaining from the proceeds of the trustee's sale after deduction of all trustee's fees and amounts due and owing Norwest under its deed of trust.

On October 21, 1994, the Vanns motioned the court for discharge of the receiver and for disbursement of all funds held or acquired by the receiver on the basis that Vann was the subsequent purchaser of the apartments at the trustee's sale.In addition, the receiver filed an application for approval of his closing statement, final payment of receivership fees, and discharge from any further duties and for an order allowing him to disburse funds to the parties as their interests appeared.

The district court then issued an order directing Norwest to deposit $16,170.10 with the receiver, who was then directed to deposit that sum with the clerk of the district court for Douglas County, to be deposited in an interest-bearing account.This sum was to be held until disbursed by agreement or adjudication by the court.The court then approved the receiver's closing statement and final payment, ordered that the remaining balance of net rental...