|
|
|
 Nebraska
State Bar Association NE Law Express
for January 5, 2007
|
|
Use
our Short Cuts to link to the area of today's
NE Law Express that interests you.
|
|
Cases affecting
the following practice areas are summarized in today's NE Law Express:
|
These Bar Events
links give you information about upcoming programs and activities:
NCLE
Teleseminars
- Jan.
16-17, 2007
- Teleseminar - Choice of Entity for Small and Medium Size Businesses,
Part 1 and Part 2
- Jan.
23, 2007
- Teleseminar - UCC Issues in Real Estate Transactions
- Jan.
30, 2007 - Teleseminar - Corporate Governance for Family Businesses
- Feb.
6, 2007 - Teleseminar - Your Largest Asset: An Estate Planning
Guide to Your PersonaL Residence
- Feb.
13, 2007 - Teleseminar - Uses of Life Insurance in Business
Planning
- Feb.
16, 2007 - Seminar - ADR for Lawyers
- Feb.
22, 2007 - Teleseminar - Choice of Entity for Non-Profits
- Feb.
23, 2007 - Seminar - Construction Law
- Feb.
28, 2007
- Teleseminar - Ethical Issues in ADR
For
more information or to register for a Teleseminar, contact Kathryn
Bellman.
These links
provide you with information on existing Member
Benefits:
|
| Case
Summaries |
| 12(b)(6),
Claim, Appeal and Error |
|
Back
to ShortCuts
The biological
mother of a child, petitioned the county court to vacate the adoption
of the child pursuant to the Nebraska Indian Child Welfare Act (NICWA)
and because she claimed a “relinquishment to adoption”
was fraudulently obtained from her. That court granted a motion
to dismiss for failure to state a claim but the Nebraska Supreme
Court concluded that while the tribe’s entry into the case
was not timely, the allegation that the mother’s consent was
obtained by fraud or duress could not be dismissed for failure to
state a claim.
In
re Adoption of Kenten H., 272 Neb. 846 (2007)
Supreme
Court Headnotes
Motions to
Dismiss:
- [Rules
of the Supreme Court:] (Pleadings: Appeal and Error.) The trial
court's grant of a motion to dismiss for failure to state a claim
under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003)
is reviewed de novo, accepting all the allegations in the complaint
as true and drawing all reasonable inferences in favor of the nonmoving
party.
- [Summary
Judgment:] (Pleadings.) A court may take judicial notice of
matters of public record without converting a motion to dismiss
under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003)
into a motion for summary judgment.
Judgments:
- [Statutes:]
(Appeal and Error.) When an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an independent,
correct conclusion irrespective of the determination made by the
court below.
Indian Child
Welfare Act:
- [Proof.]
A party to a proceeding who seeks to invoke a provision of the Nebraska
Indian Child Welfare Act has the burden to show that the act applies
in the proceeding.
- [Federal
Acts:] (Time.) The provisions of the federal Indian Child Welfare
Act and the Nebraska Indian Child Welfare Act apply prospectively
from the date Indian child status is established on the record.
Parties:
- [Jurisdiction:]
(Waiver.) The presence of necessary parties to a suit is a jurisdictional
matter and cannot be waived by the parties; it is the duty of the
plaintiff to join all persons who have or claim any interest which
could be affected by the judgment.
- [Words
and Phrases.] An indispensable or necessary party to a suit
is one whose interest in the subject matter of the controversy is
such that the controversy cannot be finally adjudicated without
affecting the indispensable party's interest, or which is such that
not to address the interest of the indispensable party would leave
the controversy in such a condition that its final determination
may be wholly inconsistent with equity and good conscience.
Date Filed
and Case No.: January 5, 2007. No. S-06-204.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan5/s06-204.htm
Court Appealed
From: Separate Juvenile Court of Lancaster County: Thomas B.
Dawson, Judge.
Attorneys
for the Appeal: Patricia A. Knapp for Meaghan H., appellant.
Susan K. Sapp and Stanton N. Beeder for Mark J. and Sheryl J., appellees.
Jon Bruning and B. Gail Steen for amicus curiae Nebraska Department
of Health and Human Services.
Justices:
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Not Participating:
Wright, J.
Authored
By: Stephan, J.
Summary:
Meaghan H., the biological mother of Kenten H., petitioned the
county court for Lancaster County to vacate the adoption of Kenten
pursuant to the Nebraska Indian Child Welfare Act (NICWA), Neb.
Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2004). The matter
was assigned to the separate juvenile court of Lancaster County,
which had entered the decree of adoption.
The separate
juvenile court took judicial notice of documents filed in earlier
juvenile court proceedings and the adoption proceeding which disclosed
that Kenten was born prematurely on 08/16/02 and on November 14,
the State of Nebraska filed a petition seeking to adjudicate Kenten
and three of his siblings under Neb. Rev. Stat. § 43-247(3)
(due to the fault or habits of their parents, Meaghan and Kent H.)
Kenten, still hospitalized was placed in the temporary custody of
the Nebraska Department of Health and Human Services (DHHS). On
01/08/03, he was released from the hospital and placed in foster
care. An adjudication hearing was scheduled, and on 03/19/03, a
deputy county attorney gave notice, given pursuant to Nebraska and
the federal Indian Child Welfare Acts of 1978 (ICWA), of the hearing
to the Iowa Tribe of Kansas and Nebraska (the Iowa Tribe). A petition
to terminate the parental rights of both parents as to Kenten was
filed on April 8 and notice of a hearing on the adjudication and
termination was given to the Iowa Tribe.
Subsequently,
the Court adjudicated Kenten and granted the State's motion for
leave to withdraw the petition to terminate the parental rights
of Kent and Meaghan as to Kenten. Meanwhile, on 08/19/03 the foster
parents, Mark J. and Sheryl J. Meaghan filed a petition seeking
to adopt Kenten. An affidavit attached to the petition identified
Kent as the biological father and his tribal affiliation was listed
as "UTE." In the petition, the adoptive parents alleged
that the county attorney's office had notified "the Ute tribe"
of the pending adoption, but never received a response.
Also, attached
to the petition was a "Relinquishment of Child by Parent"
purportedly signed by Meaghan on 06/20/03, stating that she voluntarily
relinquished to DHHS "all right to and custody of and power
and control over" Kenten so that DHHS became his legal guardian.
The relinquishment further provided that Meaghan authorized DHHS
to place Kenten in a suitable family home and "consent to and
procure" his adoption. An identical relinquishment signed by
Kent was also attached to the petition.
The separate
juvenile court specifically found that all of the allegations in
the petition were true. Eight days after the entry of the decree,
the Iowa Tribe filed an "Entry of Appearance & Notice of
Intervention to Monitor." Meaghan filed a petition to vacate
the adoption pursuant to NICWA on 08/24/05 alleging Krenten was
an "Indian child" for purposes of NICWA and ICWA. Meaghan
further alleged that she was hospitalized and "under the influence
of morphine and other mind-altering medications" when she signed
the relinquishment and that while she was in this condition, a DHHS
caseworker told her that her only hope of keeping any of her children
was to voluntarily relinquish her rights to Kenten. Meaghan attached
to her petition a “Withdrawal of Parental Consent to Adoption"
purportedly signed by her on 08/24/05, stating that she was withdrawing
her consent to Kenten's adoption "on the grounds that my consent
was obtained through fraud and duress and in violation of the provisions
of the federal and Nebraska Indian Child Welfare Acts."
After initially
filing an answer to the petition, the adoptive parents filed a motion
to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)
(rev. 2003). In this motion, the adoptive parents alleged that the
petition to vacate was not timely pursued, that there was a defect
of the parties because DHHS was not joined, that Meaghan had waived
and is estopped from asserting parental rights to Kenten, and that
Meaghan had made no claims of fraud or duress until 26 months after
executing the relinquishment. No evidence was received at a hearing
on the motion, but at the request of the adoptive parents and without
objection by Meaghan, the court took judicial notice of its file
in the earlier proceedings. On 01/18/06, the juvenile court entered
an order dismissing Meaghan's petition to vacate, concluding that
the showing that Kenten was an "Indian child" to whom
NICWA applied came too late and that thus, Meaghan was not entitled
to invoke NICWA's provisions as a basis for vacating the adoption.
The court concluded that notwithstanding the notice, until it had
knowledge from the tribe that Kenten was a child subject to NICWA
or other evidence that Kenten was enrolled as a member of a tribe,
Kenten was not an "Indian child" subject to NICWA. In
this respect, the juvenile court specifically determined that at
the time of the initial juvenile abuse and neglect proceeding and
later in the adoption proceeding, it had "no knowledge or evidence"
that the case involved NICWA. The court concluded that the Iowa
Tribe's appearance and notice was filed too late in the adoption
proceeding to trigger the provisions of NICWA, and it therefore
granted the motion to dismiss. Meaghan appealed and the Nebraska
Supreme Court moved the case to their docket. Kent is not a party
to these proceedings.
The Court wrote,
regarding the rule 12(b)(6) defense, Meaghan's allegation and the
tribe's statement clearly established that Kenten is an "Indian
child" within the meaning of NICWA. “But the critical
issue in the instant case is not whether Kenten is an ‘Indian
child, but, rather, when his status was established in these
proceedings” they wrote. Reviewing cases set out in the opinion,
the Court said the cases established that the provisions of ICWA
and NICWA apply prospectively from the date Indian child status
is established on the record. In this case, Kenten's status as an
Indian child was established on the record when the Iowa Tribe entered
its appearance in the adoption proceeding on 10/08/03, 8 days after
entry of the decree of adoption. “We hold that NICWA applies
prospectively from that date.” Because NICWA applies only prospectively
from the date it is established on the record, the Court ruled that
Meaghan could not argue that her consent to Kenten's relinquishment
was invalid because it was not obtained pursuant to the substantive
provisions of § 43-1506(1).
However, Meaghan
also sought to set aside the decree of adoption on the basis that
her consent was obtained through fraud and duress, which type of
postdecree challenge is specifically authorized by § 43-1506(4).
Therefore, the Court looked at the record and concluded that the
petition to vacate the decree of adoption stated a claim upon which
relief can be granted in that it alleges that Meaghan's consent
was obtained by fraud or duress. “The action to obtain such
relief was timely filed and included all necessary parties.”
As a result, the Court reversed the judgment of the juvenile court
and remanded the cause for further proceedings consistent with the
opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
|
| Indian
Child Welfare Act, Response to Notice, Timeliness
|
|
Back
to ShortCuts
The biological
mother of a child, petitioned the county court to vacate the adoption
of the child pursuant to the Nebraska Indian Child Welfare Act (NICWA)
and because she claimed a “relinquishment to adoption”
was fraudulently obtained from her. That court granted a motion
to dismiss for failure to state a claim but the Nebraska Supreme
Court concluded that while the tribe’s entry into the case
was not timely, the allegation that the mother’s consent was
obtained by fraud or duress could not be dismissed for failure to
state a claim.
In
re Adoption of Kenten H., 272 Neb. 846 (2007)
Supreme
Court Headnotes
Motions to
Dismiss:
- [Rules
of the Supreme Court:] (Pleadings: Appeal and Error.) The trial
court's grant of a motion to dismiss for failure to state a claim
under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003)
is reviewed de novo, accepting all the allegations in the complaint
as true and drawing all reasonable inferences in favor of the nonmoving
party.
- [Summary
Judgment:] (Pleadings.) A court may take judicial notice of
matters of public record without converting a motion to dismiss
under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003)
into a motion for summary judgment.
Judgments:
- [Statutes:]
(Appeal and Error.) When an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an independent,
correct conclusion irrespective of the determination made by the
court below.
Indian Child
Welfare Act:
- [Proof.]
A party to a proceeding who seeks to invoke a provision of the Nebraska
Indian Child Welfare Act has the burden to show that the act applies
in the proceeding.
- [Federal
Acts:] (Time.) The provisions of the federal Indian Child Welfare
Act and the Nebraska Indian Child Welfare Act apply prospectively
from the date Indian child status is established on the record.
Parties:
- [Jurisdiction:]
(Waiver.) The presence of necessary parties to a suit is a jurisdictional
matter and cannot be waived by the parties; it is the duty of the
plaintiff to join all persons who have or claim any interest which
could be affected by the judgment.
- [Words
and Phrases.] An indispensable or necessary party to a suit
is one whose interest in the subject matter of the controversy is
such that the controversy cannot be finally adjudicated without
affecting the indispensable party's interest, or which is such that
not to address the interest of the indispensable party would leave
the controversy in such a condition that its final determination
may be wholly inconsistent with equity and good conscience.
Date Filed
and Case No.: January 5, 2007. No. S-06-204.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan5/s06-204.htm
Court Appealed
From: Separate Juvenile Court of Lancaster County: Thomas B.
Dawson, Judge.
Attorneys
for the Appeal: Patricia A. Knapp for Meaghan H., appellant.
Susan K. Sapp and Stanton N. Beeder for Mark J. and Sheryl J., appellees.
Jon Bruning and B. Gail Steen for amicus curiae Nebraska Department
of Health and Human Services.
Justices:
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Not Participating:
Wright, J.
Authored
By: Stephan, J.
Summary:
Meaghan H., the biological mother of Kenten H., petitioned the
county court for Lancaster County to vacate the adoption of Kenten
pursuant to the Nebraska Indian Child Welfare Act (NICWA), Neb.
Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2004). The matter
was assigned to the separate juvenile court of Lancaster County,
which had entered the decree of adoption.
The separate
juvenile court took judicial notice of documents filed in earlier
juvenile court proceedings and the adoption proceeding which disclosed
that Kenten was born prematurely on 08/16/02 and on November 14,
the State of Nebraska filed a petition seeking to adjudicate Kenten
and three of his siblings under Neb. Rev. Stat. § 43-247(3)
(due to the fault or habits of their parents, Meaghan and Kent H.)
Kenten, still hospitalized was placed in the temporary custody of
the Nebraska Department of Health and Human Services (DHHS). On
01/08/03, he was released from the hospital and placed in foster
care. An adjudication hearing was scheduled, and on 03/19/03, a
deputy county attorney gave notice, given pursuant to Nebraska and
the federal Indian Child Welfare Acts of 1978 (ICWA), of the hearing
to the Iowa Tribe of Kansas and Nebraska (the Iowa Tribe). A petition
to terminate the parental rights of both parents as to Kenten was
filed on April 8 and notice of a hearing on the adjudication and
termination was given to the Iowa Tribe.
Subsequently,
the Court adjudicated Kenten and granted the State's motion for
leave to withdraw the petition to terminate the parental rights
of Kent and Meaghan as to Kenten. Meanwhile, on 08/19/03 the foster
parents, Mark J. and Sheryl J. Meaghan filed a petition seeking
to adopt Kenten. An affidavit attached to the petition identified
Kent as the biological father and his tribal affiliation was listed
as "UTE." In the petition, the adoptive parents alleged
that the county attorney's office had notified "the Ute tribe"
of the pending adoption, but never received a response.
Also, attached
to the petition was a "Relinquishment of Child by Parent"
purportedly signed by Meaghan on 06/20/03, stating that she voluntarily
relinquished to DHHS "all right to and custody of and power
and control over" Kenten so that DHHS became his legal guardian.
The relinquishment further provided that Meaghan authorized DHHS
to place Kenten in a suitable family home and "consent to and
procure" his adoption. An identical relinquishment signed by
Kent was also attached to the petition.
The separate
juvenile court specifically found that all of the allegations in
the petition were true. Eight days after the entry of the decree,
the Iowa Tribe filed an "Entry of Appearance & Notice of
Intervention to Monitor." Meaghan filed a petition to vacate
the adoption pursuant to NICWA on 08/24/05 alleging Krenten was
an "Indian child" for purposes of NICWA and ICWA. Meaghan
further alleged that she was hospitalized and "under the influence
of morphine and other mind-altering medications" when she signed
the relinquishment and that while she was in this condition, a DHHS
caseworker told her that her only hope of keeping any of her children
was to voluntarily relinquish her rights to Kenten. Meaghan attached
to her petition a “Withdrawal of Parental Consent to Adoption"
purportedly signed by her on 08/24/05, stating that she was withdrawing
her consent to Kenten's adoption "on the grounds that my consent
was obtained through fraud and duress and in violation of the provisions
of the federal and Nebraska Indian Child Welfare Acts."
After initially
filing an answer to the petition, the adoptive parents filed a motion
to dismiss pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)
(rev. 2003). In this motion, the adoptive parents alleged that the
petition to vacate was not timely pursued, that there was a defect
of the parties because DHHS was not joined, that Meaghan had waived
and is estopped from asserting parental rights to Kenten, and that
Meaghan had made no claims of fraud or duress until 26 months after
executing the relinquishment. No evidence was received at a hearing
on the motion, but at the request of the adoptive parents and without
objection by Meaghan, the court took judicial notice of its file
in the earlier proceedings. On 01/18/06, the juvenile court entered
an order dismissing Meaghan's petition to vacate, concluding that
the showing that Kenten was an "Indian child" to whom
NICWA applied came too late and that thus, Meaghan was not entitled
to invoke NICWA's provisions as a basis for vacating the adoption.
The court concluded that notwithstanding the notice, until it had
knowledge from the tribe that Kenten was a child subject to NICWA
or other evidence that Kenten was enrolled as a member of a tribe,
Kenten was not an "Indian child" subject to NICWA. In
this respect, the juvenile court specifically determined that at
the time of the initial juvenile abuse and neglect proceeding and
later in the adoption proceeding, it had "no knowledge or evidence"
that the case involved NICWA. The court concluded that the Iowa
Tribe's appearance and notice was filed too late in the adoption
proceeding to trigger the provisions of NICWA, and it therefore
granted the motion to dismiss. Meaghan appealed and the Nebraska
Supreme Court moved the case to their docket. Kent is not a party
to these proceedings.
The Court wrote,
regarding the rule 12(b)(6) defense, Meaghan's allegation and the
tribe's statement clearly established that Kenten is an "Indian
child" within the meaning of NICWA. “But the critical
issue in the instant case is not whether Kenten is an ‘Indian
child, but, rather, when his status was established in these
proceedings” they wrote. Reviewing cases set out in the opinion,
the Court said the cases established that the provisions of ICWA
and NICWA apply prospectively from the date Indian child status
is established on the record. In this case, Kenten's status as an
Indian child was established on the record when the Iowa Tribe entered
its appearance in the adoption proceeding on 10/08/03, 8 days after
entry of the decree of adoption. “We hold that NICWA applies
prospectively from that date.” Because NICWA applies only prospectively
from the date it is established on the record, the Court ruled that
Meaghan could not argue that her consent to Kenten's relinquishment
was invalid because it was not obtained pursuant to the substantive
provisions of § 43-1506(1).
However, Meaghan
also sought to set aside the decree of adoption on the basis that
her consent was obtained through fraud and duress, which type of
postdecree challenge is specifically authorized by § 43-1506(4).
Therefore, the Court looked at the record and concluded that the
petition to vacate the decree of adoption stated a claim upon which
relief can be granted in that it alleges that Meaghan's consent
was obtained by fraud or duress. “The action to obtain such
relief was timely filed and included all necessary parties.”
As a result, the Court reversed the judgment of the juvenile court
and remanded the cause for further proceedings consistent with the
opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
|
| Promissory
Note, Guarantor, Acceleration Clause, Notice
|
|
Back
to ShortCuts
In this case
a city loaned money to a company pursuant to a project financing
agreement, with two guarantors on the loan. When the company failed
to repay any of the installment payments on the agreement, the city,
exercised its right to accelerate the debt under the agreement filing
suit against the company and the guarantors. The district court
granted the guarantor’s motion for summary judgment, concluding
that the statute of limitations had run on the city's claim. The
city appealed and the Nebraska Supreme Court determined that the
statute of limitations began to run when the city exercised its
right to accelerate the debt, and concluded that the city's claim
was not barred by the 5-year statute of limitations.
City
of Lincoln v. Hershberger, 272 Neb. 839 (2007)
Supreme
Court Headnotes
Contracts:
- [Guaranty:]
(Limitations of Actions.) The statute of limitations begins
to run against a contract of guaranty the moment a cause of action
first accrues. (Debtors and Creditors.) A guarantor's liability
arises when the principal debtor defaults.
- [Acceleration
Clauses:] (Limitations of Actions.) In the absence of a contractual
provision allowing acceleration, where an obligation is payable
by installments, the statute of limitations runs against each installment
individually from the time it becomes due. ((Debtors and Creditors.))
Where a contract contains an option to accelerate, the statute of
limitations for an action on the whole indebtedness due begins to
run from the time the creditor takes positive action indicating
that the creditor has elected to exercise the option.
- [Debtors
and Creditors.] As a general rule, a guarantor steps into the
shoes of the original debtor and has all the same obligations and
defenses of the original debtor.
Summary Judgment.
- Summary judgment
is proper when the pleadings and evidence admitted at the hearing
disclose no genuine issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.
- [Appeal
and Error.] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom judgment is granted and gives such party the benefit of all
reasonable inferences deducible from the evidence.
Date Filed
and Case No.: January 5, 2007. No. S-05-1066.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan5/s05-1066.htm
Court Appealed
From: District Court for Lancaster County: Bernard J. McGinn,
Judge.
Attorneys
for the Appeal: Dana W. Roper and James D. Faimon for City of
Lincoln, Nebraska, a municipal corporation, appellant. Joel D. Nelson
for James E. Hershberger and Sandra M. Hershberger, appellees.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Gerrard, J.
Summary:
On 06/08/93, the City of Lincoln (the City) and PMI Franchising,
Inc. (PMI) entered into a "Project Financing Agreement."
Pursuant to this agreement, the City agreed to loan PMI $49,500
and PMI agreed to repay the loan. Paragraph 5 of the financing agreement
provided for monthly payments of interest only for the first 24
months and amortized payments of principal and interest over the
following 60 months, for a total term of 7 years. With regard to
default and termination of the agreement, the contract provided:
The City may
terminate this Agreement, if PMI should default in the performance
of any of the terms or requirements hereof. The City shall provide
PMI written notice of such default and if PMI fails to correct
such default within 30 days of receipt of such notice, this Agreement
shall be terminated. Upon termination, the unpaid balance plus
accrued interest to the date of termination shall become due and
payable in full immediately on the date of termination.
As officers
of PMI, James E. Hershberger and Sandra M. Hershberger signed the
agreement as guarantors on the loan. At some point between 06/08/93
and 03/04/94, the City disbursed $23,753.43 to PMI. PMI never made
any payments to the City. On 02/28/95 the City wrote the Hershbergers,
declaring that PMI had defaulted under the minimum repayment terms
of the agreement and declaring that if the default was not corrected,
the entire unpaid principal balance of $23,753.43 plus accrued interest
would be due and payable and the City would be forced to consider
all legal alternatives available.
PMI did not
correct its default, and on 09/20/99, the City filed a petition
in the district court against PMI and the Hershbergers. The City
filed a second amended petition in December alleging that PMI failed
to repay the loan contrary to the provisions of the agreement and
that the Hershbergers had failed to comply with the provisions of
the guaranties. In the petition, the City asserted that the unpaid
principal and accrued interest was due and payable and prayed for
a judgment against PMI and the Hershbergers in the amount of the
unpaid principal of $23,753.43 plus accrued interest, as well as
costs and attorney fees. The Hershbergers answered and affirmatively
alleged that the City's action against them was barred by the statute
of limitations.
During the course
of the proceedings in the district court, a default money judgment
was entered against PMI and the claim continued against the Hershbergers
individually as guarantors. The Hershbergers moved for summary judgment
on the basis that the action was time barred by the 5-year statute
of limitations found in Neb. Rev. Stat. § 25-205 (Reissue 1995).
Following an evidentiary hearing, the court agreed with the Hershbergers
and dismissed the City's operative petition, reasoning that the
statute of limitations began to run on 06/08/93, the date the agreement
was signed, and that because the City did not file its action until
1999, the suit was barred. The City appealed, and the case was transferred
to the docket of the Nebraska Supreme Court. In City of Lincoln
v. PMI Franchising, 267 Neb. 562, 675 N.W.2d 660 (2004), the
Court reversed the district court's decision and remanded the cause
for further proceedings.
Upon remand,
both parties offered additional exhibits into evidence. The district
court again granted the Hershbergers' motion for summary judgment,
concluding that "the Hershbergers' liability arose before March
4, 1994, which was more than five years before September 20, 1999."
As a result, the court determined that the City's claim was barred
by the 5-year statute of limitations. The City appealed.
The Nebraska
Supreme Court noted that the question was at what point in time
did the statute of limitations begin to run on the City's claim
against the Hershbergers? As an initial matter the court noted that
the financing agreement between the City and PMI is an installment
contract with an optional acceleration clause. “Our determination
that the financing agreement is an installment contract with an
acceleration clause is significant because this affects when the
statute of limitations began to run.” Where a contract contains
an option to accelerate, the statute of limitations for an action
on the whole indebtedness due, begins to run from the time the creditor
takes positive action indicating that the creditor has elected to
exercise the option. The Court concluded that the statute of limitations
began to run on the City's claim against PMI on 02/28/95 the date
the City sent its letter to the Hershbergers indicating the City's
intent to exercise its right to accelerate. Because that was the
date of PMI's default for purposes of the City's action against
PMI, it was also the date upon which the statute of limitations
began to run on each guaranty. The City filed its petition on 09/20/99;
accordingly, the City's claim against the Hershbergers was not barred
by the 5-year statute of limitations. REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
|
| Workers'
Compensation, Payment, Voluntary Payment
|
|
Back
to ShortCuts
In this opinion,
the claimant in a workers' compensation proceeding, suffered a work-related
injury, and her employer voluntarily paid indemnity benefits. After
a trial in the Workers' Compensation Court, the worker was awarded
further indemnity benefits. However, the award did not expressly
grant her employer credit against the award for the voluntary payments
it had already made. The Nebraska Supreme Court said that the employer
is entitled to credit for the voluntary payments it made before
the award was entered.
D'Quaix
v. Chadron State College, 272 Neb. 859 (2007)
Supreme
Court Headnotes
Workers'
Compensation:
- There is no
requirement in the Nebraska Workers' Compensation Act that a credit
against an award for payments already made be determined by the
court.
- [Appeal
and Error.] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue
2004), an appellate court may modify, reverse, or set aside a Workers'
Compensation Court decision only when (1) the compensation court
acted without or in excess of its powers; (2) the judgment, order,
or award was procured by fraud; (3) there is not sufficient competent
evidence in the record to warrant the making of the order, judgment,
or award; or (4) the findings of fact by the compensation court
do not support the order or award.
Final Orders.
- As a general
matter, where an order is clearly intended to serve as a final adjudication
of the rights and liabilities of the parties, the silence of the
order on requests for relief not spoken to can be construed as a
denial of those requests under the circumstances.
Damages.
- As a general
rule, a party may not have double recovery for a single injury.
Date Filed
and Case No.: January 5, 2007. No. S-06-548.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan5/s06-548.htm
Court Appealed
From: Nebraska Workers' Compensation Court.
Attorneys
for the Appeal: Harry R. Meister for Sara D'Quaix, appellant.
Jon Bruning and Tracy L. Warren for Chadron State College, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Gerrard, J.
Summary:
Sara D'Quaix filed a petition in the compensation court, alleging
that she had been injured in an accident arising out of and in the
course of her employment with Chadron State College (the State).
D'Quaix alleged that her employment had required her to work with
industrial chemicals and that as a result, she developed allergic
contact dermatitis and a hypersensitivity to common household and
commercial cleaners. D'Quaix also alleged that the State had notice
of the accident and injury on or about 11/04/97, and that some workers'
compensation benefits had been paid as recently as 08/08/03. However,
D'Quaix alleged that the State had not made timely payment of disability
benefits and medical expenses, entitling D'Quaix to attorney fees
and a statutory penalty pursuant to Neb. Rev. Stat. § 48-125
(Reissue 2004). In response, the State denied liability and alleged
that D'Quaix's injuries were the result of a preexisting condition
or nonwork accident or illness. Trial was had and the single judge
of the Workers' Compensation Court awarded benefits to D'Quaix.
The single judge awarded TTD benefits of $180 per week for the period
between 07/29/98, and 03/02/00. The single judge further found D'Quaix
had suffered a 65 % LEC, entitling her to PPD benefits of $120.52
per week for 217 weeks. In sum, the single judge awarded D'Quaix
disability benefits totaling $39,370.24. The 10/01/04, award did
not give the State credit for payments already made and was silent
as to a penalty or attorney fees. No one appealed from this award
entered on 10/01/04.
The State issued
a check to D'Quaix on 10/29/04 in the amount of $12,052. No other
payments were made after the entry of the October 1 award. In a
letter dated 01/13/05, D'Quaix demanded an additional payment of
$40,977.36, on the basis that $27,318.24 remained due on the 10/01/04
award, and an additional $13,659.12 which had accrued as a waiting-time
penalty. On 06/20/05, D'Quaix filed a motion in the compensation
court seeking a waiting-time penalty and attorney fees.
A hearing was
held before the single judge and over D'Quaix's objection, the State
adduced evidence that prior to the 10/01/04 award, D'Quaix had been
paid 112 1/7 weeks of TTD benefits for a total of $20,186.29, and
88 2/7 weeks of PTD benefits for a total of $10,638. The State contended
that when the postaward payment of $12,052 was included, D'Quaix
had actually received $1,753.25 more than she had been awarded by
the 10/01/04, award. D'Quaix did not dispute that the payments evidenced
by the State had been made, but argued that the evidence was "a
collateral attack on that final judgment and is inadmissible."
The single judge overruled D'Quaix's objection and her motion for
a waiting-time penalty and attorney fees. D'Quaix appealed, and
the review panel of the Workers' Compensation Court affirmed the
decision of the single judge. D'Quaix again appealed, and the Nebraska
Supreme Court moved the case to its docket.
The Court noted
that all of D'Quaix's assignments of error rested on the same premise,
the failure of the 10/01/04 award to set off a credit against the
judgment, for benefits already paid, operated to deny such a credit.
“Therefore, the underlying issue presented in this appeal is
whether the State is entitled to credit for the voluntary payments
it made before the award was entered.”
The Court reasoned
that here, the single judge's award was clearly intended to provide
D'Quaix with all the compensation to which she was entitled under
the Nebraska Workers' Compensation Act. There was no requirement,
in the Nebraska Workers' Compensation Act or the 10/01/04 award,
that the State provide D'Quaix with a double recovery. Instead,
the State properly acted to voluntarily pay D'Quaix indemnity benefits
after being notified of her injury and paid D'Quaix the balance
of her award after the award was entered. “The record establishes,
beyond dispute,” they said “that D'Quaix received all
of the indemnity benefits she was awarded in the October 1 award.”
Because the State paid the balance of the 10/01/04 award within
30 days after it was entered, the Workers' Compensation Court did
not err in denying D'Quaix's motion for a waiting-time penalty and
attorney fees. S imilarly, the evidence adduced at the hearing on
D'Quaix's motion was not a collateral attack on the October 1 award
because the issue raised at the hearing had not been decided by
the previous award, and the single judge did not err in accepting
the State's evidence. AFFIRMED.
|
|
