Opinion
No. A-12-189.
10-09-2012
BLACK HAWK LAND & CATTLE, APPELLEE, v. FIVE B FARMS, INC., AND STEVEN D. BARGER, APPELLANTS.
Nathan A. Schneider, of Mousel, Brooks, Garner & Schneider, P.C., L.L.O., for appellants. Terrance O. Waite and Patrick M. Heng, of Waite, McWha & Heng, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Hitchcock County: DAVID URBOM, Judge. Affirmed.
Nathan A. Schneider, of Mousel, Brooks, Garner & Schneider, P.C., L.L.O., for appellants.
Terrance O. Waite and Patrick M. Heng, of Waite, McWha & Heng, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
PER CURIAM.
Five B Farms, Inc., a Nebraska corporation, and Steven D. Barger appeal from a journal entry of the district court for Hitchcock County which overruled their motion to set aside summary judgment and ordered that the partnership between the parties be dissolved and judgment be entered against Five B Farms in the amount of $24,156. Five B Farms alleges that the district court erred by not granting its motion to set aside summary judgment due to lack of notice and service. After our review, we affirm.
BACKGROUND
On December 7, 2001, Black Hawk Land & Cattle (Black Hawk) initiated this action by filing a petition for dissolution of partnership in the Hitchcock County District Court. The petition alleges that the parties entered into a partnership agreement on May 31, 1996, to share equally in the use of certain farming equipment and that each party is a one-half owner of such equipment. The petition asserts that on August 31, 2001, Steven, on behalf of Five B Farms, took said partnership equipment and has concealed it from Black Hawk since that time. The petition further alleges that the actions of Five B Farms amount to a willful breach of the partnership agreement and prejudicially affect the carrying on of the partnership business such that it is not practicable to do so any longer. The prayer for relief requests (1) judgment that a partnership existed; (2) dissolution of said partnership; (3) an accounting by Five B Farms and payment of damages in the amount of $24,156; (4) damages for breach of the partnership agreement; and (5) costs of the action and whatever further relief the court deems just. Five B Farms and Steven filed their joint answer on February 12, 2002, wherein they denied that a partnership ever existed between the parties and that "any equipment held by them . . . is held by claim of right." The answer was signed by Ryan R. Wilcox, an attorney with "Green Law Offices, P.C."
On June 30, 2004, a motion to withdraw was filed by Black Hawk's attorney, and that motion was sustained by the district court on June 7. The next chronological filing in the transcript is an order to show cause filed by the district court on September 9, 2011, which states that unless good cause is shown within 30 days, the case will be dismissed for lack of prosecution. An appearance was entered by Black Hawk's new counsel, Terrance O. Waite, on October 6, and this action was obviously not dismissed.
On November 23, 2011, Black Hawk filed a motion for summary judgment, which recites that it plans to rely on its petition, Five B Farms' answer, and Jacob Barger's affidavit in support of its summary judgment motion. The certificate of service connected to the motion provides that Wilcox, listed as "Attorney of Record for [Five B Farms]" and Maurice Green were served with the summary judgment motion via fax and U.S. Mail in November 2011, although no specific day of the month is printed on the line designated for such. By this time, it appears that Wilcox was no longer associated with Green Law Offices, because the address at which he was served was different than the address where Green was served--which was the address formerly used by Wilcox when he signed the answer in February 2002. In any event, both Green and Wilcox are separately listed on the motion for summary judgment as being served. The affidavit of Jacob was also filed on November 23, which provides that Jacob is a shareholder, a director, and the president of Black Hawk; that he has read the petition in this case; and that the allegations contained therein are true and accurate. Attached to the affidavit is "Exhibit A," which is a contract for sale of equipment between Five B Farms as the seller and Black Hawk as the buyer of a one-half interest in the disputed farm equipment. The contract was signed by an "authorized agent" for each party to this action in May 2000. Jacob's affidavit recites that in 2003, Steven "sold or caused to be sold" the relevant farming equipment. Jacob's affidavit states, "Black Hawk did not consent to this sale of this partnership property."
An amended notice of hearing was filed by Black Hawk on November 29, 2011, which states that a hearing on its motion for summary judgment would be held on December 12. The certificate of service on the second page of that motion provides that each of the following people were served notice of the hearing on November 29 via fax: Wilcox, "Attorney of Record for [Five B Farms]"; Green; William Barger; and Jacob. Again, Wilcox and Green were served at their separate addresses. Green filed a motion to withdraw as counsel for Five B Farms the following day, November 30, for the stated reason that "counsel has had no contact with client and has not been paid by his clients," and the certificate of service indicates a copy was sent, postage prepaid, to attorney Waite on November 30. On December 12, a second amended notice of hearing was filed by Black Hawk, stating that the summary judgment hearing was rescheduled for December 19. The certificate of service for this amended notice states that Green, listed as "Attorney of Record for [Five B Farms]"; William; and Jacob were all served via fax and U.S. Mail, postage prepaid, on December 9. Also on December 12, the district court sustained Green's motion to withdraw as counsel for Five B Farms. There is no order on the motion for summary judgment in our record, but the praecipe for transcript does not request such, nor does the praecipe for bill of exceptions request a bill for any summary judgment hearing held December 19, or on any other date.
Attorney Nathan Schneider entered an appearance for Five B Farms on January 5, 2012. On that same date, Schneider filed a motion to set aside summary judgment, which states that such judgment was entered by the court on December 20, 2011. We note that where a summary judgment has been entered, the absence of a bill of exceptions results in the presumptions that the evidence sustains the trial court's finding that there was no genuine issue as to any material fact and that the case was correctly decided. Stromsburg Bank v. Nuttleman, 218 Neb. 687, 358 N.W.2d 746 (1984). In the absence of a bill of exceptions, the only issue which will be considered on appeal of a summary judgment is the sufficiency of the pleadings to support the judgment. Id.
In any event, Schneider's motion recites, "[Five B Farms] only received the Order to Withdraw as Counsel and never received the Motion for Summary Judgment or Notice of Hearing from their former attorney . . . Green." A telephonic hearing occurred January 17, 2012, on Five B Farms' motion to set aside summary judgment, at which hearing argument was heard and the matter was submitted and taken under advisement. The court reporter's affidavit in our record indicates that a praecipe for a bill of exceptions for the January 17 hearing was sent to an incorrect address and thus not received by the court reporter. The affidavit further states that in the court reporter's conversation with new counsel for Five B Farms, counsel indicated that no record had been made of the January 17 hearing to set aside summary judgment and that there would not be a bill of exceptions in this case--and we do not have such.
A journal entry was filed in the district court on January 31, 2012, overruling Five B Farms' motion to set aside summary judgment, ordering that the partnership be dissolved and that judgment be entered against Five B Farms in the amount of $24,156. The court did not provide its reasoning for overruling the motion to set aside summary judgment in its journal entry. Five B Farms now appeals.
ASSIGNMENT OF ERROR
Five B Farms alleges that the district court erred by overruling its motion to set aside summary judgment due to lack of notice and service.
STANDARD OF REVIEW
In reviewing a trial court's action in vacating or refusing to vacate a judgment or order, an appellate court will uphold and affirm the trial court's action in the absence of an abuse of discretion. In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987).
ANALYSIS
Five B Farms asserts that it did not receive notice of the summary judgment hearing until after the proceeding occurred and that it was sent only a copy of the court's minutes at that time. Five B Farms contends that the district court's failure to grant its motion to set aside summary judgment caused it to be "unavoidably and misfortunately unable to defend [itself] at the Summary Judgment hearing." Five B Farms does not cite any case law or statutory authority in the single paragraph that comprises the argument section of its brief.
However, Five B Farms appears to be relying on Neb. Rev. Stat. § 25-2001(4)(f) (Reissue 2008), cited in the standard of review section of its brief, which provides that a district court may vacate or modify its own judgments for unavoidable casualty or misfortune, preventing the party from prosecuting or defending. These statutory grounds plainly apply to modification or vacation of a judgment "after the term" of court at which it was entered. Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003); § 25-2001(4)(f). The term of the district court for Hitchcock County is coextensive with the calendar year. See Rules of Dist. Ct. of 11th Jud. Dist. 11-1 (rev. 1995). According to Five B Farms' motion to set aside summary judgment, the district court entered the summary judgment on December 20, 2011, and its motion to set such aside was filed on January 5, 2012. It thus appears that the "after the term" prerequisite has been met.
According to Five B Farms and Steven's motion to set aside summary judgment, their lack of notice and service argument stems from their claim that their former attorney, Green, did not provide them with notice of the summary judgment or the summary judgment hearing. The relevant certificates of service in our record reveal that Green was served with notice of the summary judgment sometime in November 2011, with an amended notice of the summary judgment hearing on November 29 and with a second amended notice of the hearing on December 9--all of which occurred before his motion to withdraw as counsel for Five B Farms was granted on December 12. Notably, the requirement of Neb. Rev. Stat. § 25-1332 (Reissue 2008) that a motion for summary judgment be served at least 10 days before the time fixed for the hearing, which evidently occurred in this case on December 19, has been met.
The rule is well-established in Nebraska that lack of diligence or negligence of counsel is not unavoidable casualty or misfortune in the context of § 25-2001(4)(f) entitling the applicant to vacation of judgment after adjournment of term at which judgment has been rendered. Emry v. American Honda Motor Co., Inc., 214 Neb. 435, 334 N.W.2d 786 (1983); Shipley v. McNeel, 149 Neb. 793, 32 N.W.2d 636 (1948); Lyman v. Dunn, 125 Neb. 770, 252 N.W.2d 197 (1934). The record is clear that Five B Farms' attorney was served with notice of the summary judgment and the hearing regarding such in this proceeding. If counsel failed to provide such notice to Five B Farms and Steven, such is not a ground to vacate the district court's granting of summary judgment in favor of Black Hawk under § 25-2001(4)(f). As a result, the district court did not abuse its discretion when it overruled Five B Farms' motion to set aside summary judgment. This claim is without merit.
CONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED.