Welsch v. Graves

Decision Date17 July 1998
Docket NumberNo. S-97-447,S-97-447
Citation255 Neb. 62,582 N.W.2d 312
PartiesSamuel WELSCH, Appellant, v. Tom GRAVES and New Hope Addictions Center, Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate 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.

2. Pleadings: Limitations of Actions: Demurrer. When it is apparent from the face of the petition that the action is barred by a statute of limitations, the petition fails to state a cause of action and is subject to a general demurrer.

3. Pleadings: Limitations of Actions. When it is not apparent from the face of the petition that the action is barred by the statute of limitations, the affirmative defense of the statute of limitations must be raised in the answer.

4. Pleadings: Limitations of Actions: Waiver. The benefit of the statute of limitations is personal and, like any other personal privilege, may be waived and will be unless pleaded. It must be pleaded by either answer or demurrer, or it will be considered as waived.

5. Pleadings: Words and Phrases. The pleadings in an action are the written 6. Pleadings. The purpose of pleadings is to frame the issues upon which a cause is to be tried, and the issues in a given case will be limited to those which are pleaded.

statements by the parties of the facts constituting their respective claims and defenses.

7. Pleadings. A pleading serves to eliminate from consideration those contentions which have no legal significance and to guide the parties and the court in the conduct of cases.

8. Pleadings: Summary Judgment. The pleadings frame the issues to be considered on a motion for summary judgment. A court may not enter summary judgment on an issue not presented by the pleadings.

9. Pleadings. The only pleadings allowed are (1) the petition by the plaintiff, (2) the answer or demurrer by the defendant, (3) the demurrer or reply by the plaintiff, and (4) the demurrer to the reply by the defendant.

10. Pleadings: Summary Judgment. A motion for summary judgment is not a pleading and, by itself, is insufficient to raise an affirmative defense such as the statute of limitations.

Shelley A. Horak, Sioux City IA, for appellant.

Michael W. Ellwanger, of Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhauser, Sioux City IA, for appellees.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, Justice.

Samuel Welsch appeals from an order entering summary judgment in favor of Tom Graves and New Hope Alcoholism and Addiction Center (New Hope) on the grounds that his personal injury action against them was not commenced within the 2-year limitations period for professional negligence actions set forth in Neb.Rev.Stat. § 25-222 (Reissue 1995). We conclude that the statute of limitations defense was waived because it was not asserted in the pleadings and, therefore, reverse the judgment of the district court and remand the cause for further proceedings.

FACTUAL BACKGROUND

Graves is a substance abuse counselor certified by the State of Nebraska and employed by New Hope. Graves provided counseling to Welsch from May 1991 until approximately September 15, 1993. This action was commenced on October 12, 1995. In his operative amended petition filed on February 6, 1996, Welsch alleged that Graves, as an employee of New Hope, "did not exercise the degree of skill, care, and knowledge ordinarily exercised or possessed by counselors ... in Dakota County Nebraska" and was negligent in failing to properly assess and treat Welsch's condition, in providing treatment to Welsch's entire family despite a conflict of interest, in diagnosing and treating Welsch when Graves was unqualified to do so, and in other particulars.

Graves and New Hope did not demur to Welsch's petition nor did they assert a statute of limitations defense in their answer filed on February 20, 1996. This defense was alleged for the first time in a motion for summary judgment filed on November 27, 1996. Although Welsch argued that the failure to raise the defense by demurrer or answer resulted in its waiver, the district court found that it was properly raised by the motion for summary judgment. The court further found that Graves was a professional and that Welsch's action was barred by § 25-222 because it was filed more than 2 years after Graves last provided services to Welsch. Consequently, the district court sustained the motion for summary judgment and Welsch perfected this appeal. Pursuant to our authority to regulate the dockets of this court and the Nebraska Court of Appeals, we removed the case to our docket on our own motion.

ASSIGNMENT OF ERROR

Restated, Welsch asserts in his assignments of error that the district court erred in sustaining Graves and New Hope's motion for summary judgment because (1) the statute

of limitations[255 Neb. 65] defense had been waived and (2) Graves was not a professional for purposes of § 25-222.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate 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. Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998); Chalupa v. Chalupa, 254 Neb. 59, 574 N.W.2d 509 (1998); Bargmann v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998).

ANALYSIS

In asserting that Graves and New Hope waived their statute of limitations defense, Welsch relies on our decision in L.J. Vontz Constr. Co. v. Department of Roads, 232 Neb. 241, 244, 440 N.W.2d 664, 665-66 (1989), where we held that "[s]ince a defendant cannot raise the statute of limitations for the first time on appeal, a defendant waives the statute of limitations by failure to raise the issue in a demurrer or the defendant's answer." While L.J. Vontz Constr. Co. involved an attempt to raise the statute of limitations for the first time on appeal, a circumstance not present here, our cases indicate that a defendant must raise the statute of limitations either by demurrer or in his answer to prevent a finding that the defendant has waived the defense. When it is apparent from the face of the petition that the action is barred by a statute of limitations, the petition fails to state a cause of action and is subject to a general demurrer. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997); L.J. Vontz Constr. Co. v. Department of Roads, supra. On the other hand, when it is not apparent from the face of the petition that the action is barred by the statute of limitations, the affirmative defense of the statute of limitations must be raised in the answer. Buffalo County v. Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996); Rosberg v. Lingenfelter, 246 Neb. 85, 516 N.W.2d 625 (1994); L.J. Vontz Constr. Co. v. Department of Roads, supra. We stated in Vielehr v. Malone, 158 Neb. 436, 439, 63 N.W.2d 497, 501 (1954):

The benefit of the statute of limitations is personal and, like any other personal privilege, may be waived and will be unless pleaded. [Citations omitted.] It must be pleaded either by answer or demurrer or it will be considered as waived. [Citations omitted.]

....

... "[T]he statute of limitations does not operate by its own force as a bar but operates rather as a defense to be pleaded by the party relying upon it."

We note that in its order granting the motion for summary judgment, the district court also granted a "Motion to Amend Answer" which was apparently filed by Graves and New Hope but does not appear in the transcript filed in this appeal. However, as reflected in the record and confirmed by counsel during oral argument, no amended answer asserting a statute of limitations defense was ever filed.

The pleadings in an action are "the written statements by the parties of the facts constituting their respective claims and defenses." Neb.Rev.Stat. § 25-801 (Reissue 1995). The purpose of pleadings is to frame the issues upon which a cause is to be tried, and the issues in a given case will be limited to those which are pleaded. Buffalo County v. Kizzier, supra. A pleading serves to eliminate from consideration those contentions which have no legal significance and to guide the parties and the court in the conduct of cases. Cotton v. Ostroski, 250 Neb. 911, 554 N.W.2d 130 (1996).

The pleadings likewise frame the issues to be considered on a motion for summary judgment. Neb.Rev.Stat. § 25-1332 (Reissue 1995) provides in part that summary judgment shall be rendered pursuant to motion "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue...

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