Jandrain v. Staff Mid-America ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
JANDRAIN V. STAFF MID-AMERICA
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).
JAMES G. JANDRAIN, APPELLANT,
V.
STAFF MID-AMERICA, INC., APPELLEE.
Filed March 17, 2015. No. A-14-613.
Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge. Reversed
and remanded for further proceedings.
Jerrold L. Strasheim for appellant.
David N. Steier for appellee.
MOORE, Chief Judge, and IRWIN and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
James G. Jandrain appeals from the order of the district court for Douglas County which
granted summary judgment in favor of Staff Mid-America, Inc. We find that the district court
erred in overruling Jandrain’s objection to certain portions of an affidavit offered into evidence
by Staff Mid-America, and without considering the inadmissible portions, Staff Mid-America
failed to prove that it is entitled to summary judgment. We therefore reverse and remand for
further proceedings.
BACKGROUND
Jandrain provided tax, business, and accounting services for Staff Mid-America in 2006.
In early 2007, Jandrain submitted an invoice to Staff Mid-America for $40,000, and the parties
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agreed that Staff Mid-America could partially pay for Jandrain’s services by performing
construction and repair services for Jandrain. Staff Mid-America did, in fact, perform certain
services as partial payment. Jandrain commenced this action on January 6, 2012, alleging that
there was still a balance due and owing on the invoice of not less than $35,000.
Staff Mid-America moved for summary judgment on the grounds that the action is barred
by the statute of limitations. The only evidence Staff Mid-America offered in support of its
motion at the hearing was the affidavit of Jerry McCloskey. Paragraph 1 of McCloskey’s
affidavit indicates that he is the president of Staff Mid-America and paragraphs 2 through 8
contain factual assertions regarding Staff Mid-America’s agreement with Jandrain. Jandrain
objected to paragraphs 4 through 8 on foundational grounds. He specifically argued that because
there had been no showing that McCloskey has personal knowledge of the information contained
in those paragraphs, they lack sufficient foundation. The objections were overruled and the
affidavit was received into evidence in its entirety.
The district court granted the motion for summary judgment, finding that Jandrain’s
action is barred by the four year statute of limitations governing oral contracts. It concluded that
the date on which Staff Mid-America made its final payment to Jandrain is relevant only to the
amount of damages sustained and is irrelevant to application of the statute of limitations. Thus,
the district court determined that the fact that Jandrain allowed Staff Mid-America to provide
services to him as payment did not extend the statute of limitations. Based on this determination,
the district court found that Jandrain’s cause of action accrued in 2006 or, at the latest in early
2007, when Jandrain invoiced Staff Mid-America. Consequently, Jandrain’s action was
dismissed. This timely appeal followed.
ASSIGNMENTS OF ERROR
Summarized and restated, Jandrain assigns that the district court erred in granting Staff
Mid-America’s motion for summary judgment because McCloskey’s affidavit lacked sufficient
foundation and genuine issues of material fact existed.
STANDARD OF REVIEW
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make such discretion a factor in determining admissibility. Gourley v. Nebraska Methodist
Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003).
In reviewing a summary judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was granted, and gives that party the
benefit of all reasonable inferences deducible from the evidence. Green v. Box Butte General
Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).
ANALYSIS
McCloskey’s Affidavit.
Jandrain argues that the district court erred in receiving McCloskey’s affidavit into
evidence in its entirety because McCloskey failed to establish that the contents of the affidavit
were made with personal knowledge. We agree.
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Under Neb. Rev. Stat. § 25-1334 (Reissue 2008), supporting affidavits in summary
judgment proceedings shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein. The Nebraska Supreme Court has limited its review to the pleadings in
a case where affidavits offered in support of a motion for summary judgment contained no
showing that the first vice president of the bank who executed them had personal knowledge of
the facts set forth in the affidavits. See First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb.
636, 522 N.W.2d 168 (1994).
A review of McCloskey’s affidavit shows that it fails to meet the requirements of
§ 25-1334. The affidavit does not specifically indicate that McCloskey has personal knowledge
of the facts contained therein or how he was aware of the facts surrounding Staff Mid-America’s
agreement with Jandrain, other than in his current position as president of the company. The
conclusory assertions that no payments were made after September 2007 or that no “revolving
credit agreement” existed are not affirmatively shown to be competent statements within
McCloskey’s personal knowledge. As such, the district court erred in overruling Jandrain’s
objection to the affidavit.
Genuine Issues of Material Fact.
Staff Mid-America argued that it was entitled to summary judgment because Jandrain’s
action was barred by the statute of limitations. McCloskey’s affidavit was the only evidence
offered in support of the motion. Jandrain offered his own affidavits in opposition to summary
judgment. Therein, he asserted that some of the services Staff Mid-America provided to him as
payment for his services were performed after January 6, 2008.
A cause of action in contract accrues at the time of the breach or failure to do the thing
that is the subject of the agreement. Cavanaugh v. City of Omaha, 254 Neb. 897, 580 N.W.2d
541 (1998). If a claim is based on a contract, a voluntary partial payment will restart the statute
of limitations as of the date the payment was made, and the limitations period for the remaining
balance will expire four years after the payment was made for oral contracts or five years after
the payment was made for written contracts. See Neb. Rev. Stat. §§ 25-205, 25-206, 25-216
(Reissue 2008). The parties disagree as to whether a written contract existed.
Disregarding the inadmissible portions of McCloskey’s affidavit, Jandrain’s evidence that
a partial payment was made less than four years before he commenced the action was
uncontroverted. As such, Staff Mid-America failed to establish that Jandrain’s claim was barred
by the statute of limitations as a matter of law. Even if the inadmissible portions of McCloskey’s
affidavit could be considered, genuine issues of material fact exist as to the timing of the
payments and the existence of a written agreement. We therefore reverse the order granting the
motion for summary judgment and remand the cause to the district court for further proceedings.
Although Jandrain asserts the existence of other genuine issues of material fact as a basis
for reversing the grant of summary judgment, it is not necessary to consider those remaining
claims. An appellate court is not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it. Millennium Laboratories, Inc. v. Ward, 289 Neb.
718, 857 N.W.2d 304 (2014.)
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CONCLUSION
For the foregoing reasons, we reverse the district court’s order and remand the cause for
further proceedings.
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
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