Weimer v. Amen

• Decision Date: 11 May 1990
• Docket Number: Nos. 88-430,88-652,s. 88-430
• Citation: 235 Neb. 287,455 N.W.2d 145
• Parties: Claude T. WEIMER and Association of Commonwealth Claimants, an Unincorporated Association, Appellants and Cross-Appellees, v. Paul AMEN et al., Appellees, Commerce Group, Inc., et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 145

455 N.W.2d 145

235 Neb. 287

Claude T. WEIMER and Association of Commonwealth Claimants, an Unincorporated Association, Appellants and Cross-Appellees, v. Paul AMEN et al., Appellees, Commerce Group, Inc., et al., Appellees and Cross-Appellants.

Nos. 88-430, 88-652.

Supreme Court of Nebraska.

May 11, 1990.

Syllabus by the Court

1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which this court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

2. Statutes: Presumptions: Legislature: Intent: Appeal and Error. The general rules governing statutory construction and interpretation provide that in the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning; this court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Furthermore, it is not within the province of this court to read a meaning into a statute which is not warranted by the legislative language; neither is it within the province of this court to read anything plain, direct, and unambiguous out of the statute. In construing a statute it is presumed that the Legislature intended a sensible, rather than an absurd, result.

3. Banks and Banking: Receivers: Debtors and Creditors. Neb.Rev.Stat. § 8-199 (Reissue 1983) grants the receiver broad authority to enforce all debts or other obligations of whatever kind or nature due to the creditors of the failed institution which arise by virtue of the institution's insolvency.

4. Banks and Banking: Receivers: Claims. In the absence of an allegation of an individual harm upon which a claimant can directly bring suit, claims are derivative and are properly pursued by the receiver under Neb.Rev.Stat. § 8-199 (Reissue 1983).

5. Constitutional Law: Statutes. No vested rights are impaired by a statutory or constitutional provision which creates a remedy for an existing right.

6. Constitutional Law: Due Process: Banks and Banking: Receivers. Neb.Rev.Stat. § 8-199 (Reissue 1983) does not unconstitutionally deny access to the courts, violate due process, nor take property for a public purpose without just compensation.

7. Summary Judgment. Summary judgment is proper when 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.

8. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

9. Demurrer: Pleadings: Appeal and Error. In reviewing an order sustaining a demurrer, this court accepts the truth of facts well pled and the factual and legal inferences which may be deduced from such facts, but does not accept conclusions of the pleader.

10. Demurrer: Pleadings. In ruling on a demurrer, the petition is to be liberally construed; if as so construed the petition states a cause of action, the demurrer is to be overruled.

11. Actions: Banks and Banking: Receivers. A depositor may bring a derivative action to recover for wrongs against the bank or financial institution, which wrongs have indirectly injured depositors, but only after having made an unsuccessful demand on the bank or its receiver to bring suit.

12. Courts: Judgments: Appeal and Error. Where the record demonstrates that the decision of the trial court is correct, although such correctness is based on a different ground from that assigned by the trial court, the Supreme Court will affirm.

Robert R. Gibson, of Professional Legal Associates of Nebraska, P.C., Lincoln, for appellants and cross-appellees.

Robert M. Spire, Atty. Gen., and Charles E. Lowe, Lincoln, for appellees Amen and Lake.

Gary L. Dolan, Trev E. Peterson, and Shirley K. Poland-Williams, of Knudsen, Berkheimer, Richardson & Endacott, James B. Cavanagh, of Erickson & Sederstrom, P.C., Omaha, John M. Guthery and Gregory H. Perry, of Perry, Guthery, Haase, & Gessford, P.C., Lincoln, Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, Cline, Williams, Wright, Johnson & Oldfather, Faegre & Benson, and Crosby, Guenzel, Davis, Kessner & Kuester Lincoln, for appellees Commerce Group et al.

BOSLAUGH, WHITE, SHANAHAN, GRANT and FAHRNBRUCH, JJ., and RONIN and COLWELL, District Judges, Retired.

PER CURIAM.

Claude T. Weimer, for himself, and the Association of Commonwealth Claimants, an unincorporated association, as assignees of various depositors of the Commonwealth Savings Company, brought an action against the defendants, alleging numerous improprieties in the management and supervision of the Commonwealth Savings Company, resulting in its subsequent insolvency, collapse, and liquidation. The defendants are Paul Amen, former director of the Department of Banking and Finance of the State of Nebraska; Barry Lake, former Department of Banking and Finance general counsel; various financial institutions, including members of the Nebraska Depository Institution Guaranty Corporation (NDIGC); and certain employees of the financial institutions, including the directors of the NDIGC.

Amen and Lake filed a motion for summary judgment, alleging that the causes of action against them were released by the settlement of a tort claim by the receiver of the Commonwealth Savings Company, said settlement being approved by order of the district court for Lancaster County, funded by the Legislature, and paid by the State Treasurer to the receiver. The district court sustained the motion and dismissed the petition as to Amen and Lake.

The remaining defendants filed demurrers to the amended petition, claiming, among other things, that plaintiffs were not the real party in interest and therefore lacked standing to bring suit. The district court sustained the demurrers on this basis and dismissed the petition, as it contained an incurable defect.

The plaintiffs appealed from the order granting summary judgment (case No. 88-430) and from the judgment sustaining the defendants' demurrers and dismissing the plaintiffs' petition (case No. 88-652). As both appeals are from a single district court case and present essentially the same issues, we will consider and dispose of both appeals in a single opinion.

A review of the receivership proceedings in the matter of the insolvency of Commonwealth Savings Company is set forth here in order to explain how the case at bar arrived at the present juncture.

The Commonwealth Savings Company (hereafter Commonwealth) was an industrial loan and investment company in Lincoln, Nebraska. On November 1, 1983, the Department of Banking and Finance (hereafter the department) took possession of Commonwealth pursuant to Neb.Rev.Stat. §§ 8-416 (Reissue 1987) and 8-187 (Reissue 1983). On November 8, 1983, the district court for Lancaster County issued an order declaring Commonwealth insolvent and appointed the department as the receiver and liquidating agent of Commonwealth according to § 8-416 and Neb.Rev.Stat. § 8-198 (Reissue 1983).

The receiver proceeded to file with the State Claims Board two tort claims against the State of Nebraska pursuant to the State Tort Claims Act, Neb.Rev.Stat. §§ 81-8,209 et seq. (Reissues 1981 & 1987 & Supp.1983). The first claim was filed on December 23, 1983, on behalf of the creditors of Commonwealth against the State, its officers, and employees for $56 million. The creditors alleged that negligent, willful, wanton, and fraudulent acts of the officers and employees caused the creditors' losses.

The second claim, filed on January 10, 1984, for $56,433,959.29, was brought on behalf of "a special class of creditors--those certificate of indebtedness holders who have a unique and special claim under the Nebraska Depository Institution Guaranty Corporation Act, Sections 21-17,127 through 21-17,145 R.R.S.Nebr.1943 (Reissue 1977)." This claim essentially stated the same allegations against the same persons as in the first claim, and made further allegations attacking the constitutionality of Neb.Rev.Stat. § 21-17,141 (Reissue 1987).

The State Claims Board heard these claims on February 13, 1984, and on February 29 adopted a "decision" as to the claims. The decision enunciated that "the Board has decided that there is a strong possibility of some liability on the part of the State of Nebraska arising out of certain actions of the Banking Department with regard to the Nebraska Depository Institution Guaranty Corporation Act." Based on its deliberations, the board decided that, pursuant to its statutory authority in § 81-8,211 (Reissue 1987), the State should compromise and settle the claims.

It is also provided in § 81-8,211 that any claim settled in an amount of more than $5,000 shall be submitted for approval by the district court for Lancaster County. The claims were thus submitted, and on March 2, 1984, a journal entry was filed by the district court's presiding judge ordering that a three-judge panel decide the matter due to the complexity of the legal issues presented, the public interest in the matter, and the need for a prompt decision by the court. On March 5, one of the judges was excused from service in the case, and the matter proceeded before a two-judge panel.

A hearing was held on March 12 where evidence was adduced and briefs were submitted to the court on the matter of approval of the State Claims Board's proposal of settlement.

On March 16, the district court denied the petition and application seeking approval of the State Claims Board's "decision" of February 29. In its 30-page order, the court determined that it was required to exercise its discretion...