Gerber v. P & L Finance Co. ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
GERBER V. P & L FINANCE CO.
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).
ELISA GERBER, APPELLANT,
V.
P & L FINANCE CO., INC., A NEBRASKA CORPORATION, DOING BUSINESS AS ELISA ILANA,
LAURIE LANGDON-GERBER, AND PAUL GERBER, APPELLEES.
Filed April 24, 2018. No. A-17-710.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Brian E. Jorde and Christian T. Williams, of Domina Law Group, P.C., L.L.O., for
appellant.
Edward D. Hotz, of Pansing, Hogan, Ernst & Bachman, L.L.P, for appellees P & L Finance
Co. and Laurie Langdon-Gerber.
James Polack, P.C., L.L.O., for appellee Paul Gerber.
MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Elisa Gerber brought this action in the district court for Douglas County against P & L
Finance Company, Inc. (P & L Finance), doing business as Elisa Ilana, Laurie Langdon-Gerber,
and Paul Gerber (collectively appellees) seeking issuance of a stock certificate, as well as nine
other causes of action. Elisa appeals from an order of the district court granting summary judgment
to appellees on the ground that Elisa’s claim seeking issuance of stock certificates is barred by the
statute of limitations and that because the claim for issuance of stock certificate is barred, Elisa
-1-
cannot maintain her remaining claims. Based on the reasons that follow, we affirm the district
court’s summary judgment.
BACKGROUND
Elisa instituted this action on June 9, 2014. On July 8, 2015, she filed a second amended
complaint alleging ten causes of action: action to compel the issuance of a stock certificate,
conversion, equitable estoppel, fraudulent misrepresentation, aiding and abetting, civil conspiracy,
unjust enrichment, constructive trust, director breach of fiduciary duties, and officer breach of
fiduciary duties. In her second amended complaint, Elisa alleges that she owns one-third of the
outstanding common stock of P & L Finance and that the corporation wrongfully refuses to record
her ownership on its records and refuses to issue a stock certificate to her for one-third ownership
interest. She alleges that in August 2000, Laurie, the president of P & L Finance, induced her to
invest $25,000 in P & L Finance in exchange for a one-third stock ownership interest in the
corporation, and that in October 2013, she learned that appellees were denying that Elisa was an
owner.
Appellees filed motions for summary judgment alleging that Elisa’s claims were barred by
the statute of limitations. A hearing on the motions was held on July 31, 2015.
The evidence presented at the summary judgment hearing showed that P & L Finance was
incorporated in 1995 and was formed in anticipation of operating as a finance company for a
separate business, but the finance company never materialized. The only shareholders were Paul,
Elisa’s father, and Laurie, Elisa’s stepmother, who each owned fifty percent of the corporation.
Since P & L Finance’s incorporation, Laurie has always been president, treasurer, and a director
on the board, and Paul has always been vice president, secretary, and a director on the board.
In November 1999, Laurie began operating a business selling custom jewelry and opened
a retail store under P & L Finance’s corporate structure, doing business as “Elisa Ilana.” Laurie
controlled the day-to-day activities of the corporation, as well as the financial matters related to
P & L Finance.
Paul has never been involved in the operations of P & L Finance. He does not exercise his
officer and director duties and has delegated all responsibilities of the business to Laurie. P & L
Finance has never had shareholder or board of directors meetings.
In August 2000, Elisa, who was 19 years old at the time, issued two separate checks totaling
$25,000 to P & L Finance. Elisa claims that Laurie came to her and asked her to invest in P & L
Finance, and in exchange for her investment she would become a one-third owner of the business.
Elisa claims that Laurie accepted her investment and caused the $25,000 to be deposited to P & L
Finance’s books as equity.
Laurie contends that the $25,000 Elisa gave to P & L Finance was a loan to the corporation.
She stated in her affidavit that she asked Elisa if she would loan the corporation funds because the
business was growing and it needed capital. P & L’s financial records for the years 2001 and 2002
reflect that the $25,000 from Elisa was a loan to P & L Finance. This was verified by the accountant
who prepared tax returns for the corporation.
Following Elisa’s $25,000 transfer in 2000, no stock certificate was ever issued to her, nor
did she receive any documentation indicating ownership. Further, no action was taken by appellees
to make Elisa a stockholder. The two accountants who prepared Elisa’s personal income tax returns
-2-
from 1995 to 2003 and from 2005 to 2013 both stated in affidavits that Elisa’s tax returns did not
reflect any ownership interest or any distributions from P & L Finance.
When P & L Finance first opened it retail store, Elisa worked there part time when she was
in college. Upon graduating from college in 2003, Elisa began working for P & L Finance on a
full-time basis as a sales person. During her employment, Elisa assumed the obligations and
received the benefits of an employee. In January 2007, Elisa became the manager of a second store
location P & L Finance had opened, a bead sales business called “Beads by Elisa Ilana.”
In 2008, Laurie transferred P & L Finance’s ownership of its beads sales division to Elisa
and her son, Adam Langdon. Elisa and Adam subsequently formed “Designer Beads and Charms,
Inc.” (DBC), each owning a 50-percent interest. After DBC was formed, Elisa worked only at DBS
and was no longer employed by P & L Finance. Elisa received a stock certificate reflecting her
fifty percent ownership of DBC when it was incorporated.
Appellees claim that in August 2008, P & L Finance repaid the funds it borrowed from
Elisa in 2000 when it transferred $22,000 to DBC’s checking account in order to help Elisa start
the new business. Laurie did not recall the reason why Elisa was repaid $22,000, instead of the
$25,000 she loaned to P & L Finance. Elisa denies in her affidavit that the $22,000 transferred to
DBC’s checking account was to repay her for the $25,000 she gave P & L Finance in 2000.
Elisa claims that she first discovered that appellees did not consider her an owner of P & L
Finance in October 2013 when her fiancé, who was an accountant, examined her tax returns and
noticed that they did not reflect any ownership interest in P & L Finance. Elisa subsequently asked
P & L Finance’s lawyer about her alleged ownership interest and was told that he could not provide
her any documentation concerning P & L Finance because she was not an owner. Elisa admitted
that prior to October 2013, she never inquired about her alleged ownership interest in P & L
Finance. Elisa also admitted that she never received any documentation showing her ownership.
Laurie agreed that prior to this case, Elisa never inquired about her alleged ownership
interest in P & L Finance. Laurie stated that she and Elisa never talked about the money Elisa gave
to P & L Finance and Elisa never asked her about it. Laurie also stated that she never told Elisa
she was an owner nor had she ever discussed becoming an owner of P & L Finance with Elisa.
Further, Elisa never asked Laurie if she could review financial statements of P & L Finance, never
asked what her salary was, and never asked about distributions for shareholders. Laurie stated in
her affidavit that she never concealed or failed to disclose any documents or facts to Elisa regarding
her alleged ownership of P & L Finance. Laurie also denied ever providing any personal financial
or investment advice to Elisa, with the exception of giving her the name of a financial advisor
whom Elisa subsequently retained.
Paul stated in his affidavit that Elisa has never asked him to see the stock register or any
other corporate records for P & L Finance. Prior to this litigation, he had no knowledge that Elisa
claimed to be an owner, and he never told her she was an owner or discussed her becoming an
owner. He further stated that he never provided her any financial or investment advice, other than
assisting her with buying her first house.
Elisa stated in her affidavit that she had no reason to question her ownership in P & L
Finance prior to October 2013. She stated that no one ever told her she was not an owner of P & L
Finance and she never saw any documents indicating she was not an owner. She claimed that
nothing was ever said to her or made known to her to be inconsistent with her understanding that
-3-
she was an owner of P & L Finance. She alleges that this litigation is the first time Laurie and
P & L Finance ever asserted that her investment was a loan.
Elisa contends that she relied on Laurie’s representation that the money she gave P & L
Finance was an investment in the corporation. Elisa stated that Laurie had provided her advice and
guidance in personal and financial matters for many years and she relied on and trusted Laurie’s
guidance in those matters. Laurie was like a mother to Elisa and she had no reason to question the
trust, loyalty, or confidence of her relationship with Laurie.
Following the hearing on appellees’ motions for summary judgment, the court entered an
order finding that Elisa’s claim for the issuance of a stock certificate was time barred by the statute
of limitations and there were no legal reasons to toll the statute of limitations. It further found that
because her claim for the issuance of a stock certificate was time barred, her remaining causes of
action must also be dismissed because they were predicated on her alleged status as a shareholder
of P & L Finance. The court further found that even if some or all of Elisa’s remaining causes of
action were not predicated on the allegation of a claimed ownership interest in P & L Finance,
those claims were barred by various 4-year statutes of limitations. The court granted appellees’
motions for summary judgment.
ASSIGNMENTS OF ERROR
Elisa assigns that the trial court erred in (1) granting summary judgment in favor of
appellees on all of Elisa’s claims; (2) finding there was no material issue of fact as to whether
appellees engaged in fraud or misrepresentation; (3) finding that because there was no material
issue of fact as to fraud and misrepresentation, the statute of limitations for Elisa’s claims was not
tolled; and (4) failing to find that a confidential relationship existed between her and Laurie, such
that it was reasonable for Elisa to not inquire about her ownership status in P & L, and would toll
the statute of limitations on Elisa’s claims.
STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any material facts 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. Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d 460
(2017). 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. Id.
ANALYSIS
Specific Performance for Issuance of Stock Certificate.
Elisa assigns four errors all of which relate to the court granting summary judgment in
favor of appellees on the ground that the statute of limitations had expired. She argues that the
statute of limitations was tolled because appellees fraudulently concealed or misrepresented Elisa’s
ownership status of P & L Finance. Elisa claims that the statute of limitations was tolled until
October 2013, when she first discovered that she did not have an ownership interest in P & L
Finance.
-4-
The party moving for summary judgment has the burden to show that no genuine issue of
material fact exists and must produce sufficient evidence to demonstrate that the moving party is
entitled to judgment as a matter of law Benard v. McDowall, LLC, 298 Neb. 398, 904 N.W.2d 679
(2017). A prima facie case for summary judgment is shown by producing enough evidence to
demonstrate that the movant is entitled to a judgment in its favor if the evidence were
uncontroverted at trial. Id. After the movant for summary judgment makes a prima facie case by
producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence
was uncontroverted at trial, the burden to produce evidence showing the existence of a material
issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Id.
In reviewing a summary judgment, we give the party against whom the judgment was entered all
reasonable inferences deducible from the evidence. Id.
Elisa’s first cause of action seeks specific performance for the issuance of a stock
certificate. She alleged that in 2000, she and Laurie made an oral agreement that Elisa would invest
$25,000 in P & L Finance and in return, she would get a one-third ownership interest in P & L
Finance. There is no dispute that Elisa gave P & L Finance $25,000 in 2000. There is also no
dispute that she did not receive a stock certificate or any documentation to indicate that she became
an owner.
Appellees’ filed their motions for summary judgment asserting that Elisa’s claims were
barred by the statute of limitations. In regard to Elisa’s cause of action seeking issuance of a stock
certificate, the trial court found that it was barred by the 4-year statute of limitations for oral
contracts, pursuant to Neb. Rev. Stat. § 25-206 (Reissue 2016). This statute provides: “An action
upon a contract, not in writing, expressed or implied . . . can only be brought within four years.”
The point at which a statute of limitations commences to run must be determined from the facts of
each case. Cavanaugh v. City of Omaha, 254 Neb. 897, 580 N.W.2d 541 (1998). A cause of action
accrues and the statute of limitations begins to run when the aggrieved party has the right to
institute and maintain suit. Id. Generally, this is true even though the plaintiff may be ignorant of
the existence of the cause of action. Id.
A cause of action in contract accrues at the time of the breach or failure to do the thing
agreed to, irrespective of any knowledge on the part of the plaintiff or of any actual injury
occasioned to him or her. Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006).
Elisa alleges that she became a shareholder in P & L Finance in August 2000, when she and Laurie
made the alleged oral agreement and Elisa transferred $25,000 to P & L Finance. Thus, Elisa’s
cause of action accrued and the statute of limitations began to run in August 2000 after Elisa gave
P & L Finance $25,000, and did not receive a stock certificate or any documentation reflecting her
alleged ownership interest in return. Accordingly, under the 4-year statute of limitations for oral
contracts, Elisa needed to file her action by August 2004, regardless of when she allegedly
discovered that she was not an owner.
Elisa argues that despite the rule that a cause of action in contract accrues at the time of the
breach irrespective of any knowledge, the statute of limitations was tolled because of the fraud
committed by appellees, as well as Elisa’s confidential relationship with Laurie, which prevented
her from discovering that she was not a shareholder. She stated in her affidavit that she had no
reason to question her ownership prior to October 2013. She relied on Laurie’s representation that
-5-
she would become an owner when she contributed $25,000 to P & L Finance because Laurie was
like a mother to her and she trusted her. She stated that no one ever told her she was not an owner
and she never saw any document indicating she was not an owner. She also claims that access to
financial records was limited.
However, as the trial court found, Elisa failed to present sufficient evidence to create a
material issue of fact as to whether the appellees concealed information or misled her during the
four years after she gave the $25,000 to P & L Finance. P & L Finance financial records reflected
the $25,000 as a loan in 2001 and 2002, and Elisa’s tax returns did not disclose any ownership
interest in P & L Finance. Further, the facts Elisa claims to have discovered in 2013 were the same
as those available to her in 2000. Elisa’s tax returns from 1995 to 2003, and 2005 to 2015, did not
reflect that she was an owner or that she had received any distributions from P & L Finance. Elisa
does not dispute that she filed income tax returns every year from 2000 to 2013, that she had the
opportunity to review her returns, and that she signed all of her returns.
In addition, Elisa admitted that prior to October 2013 she had never inquired about her
alleged ownership interest and never received any documentation showing her ownership. Laurie
agreed that Elisa never inquired about her ownership interest. Laurie also stated that after August
2000, she and Elisa never talked about the money Elisa gave P & L Finance. Elisa also never asked
Laurie or Paul if she could review financial statements or any corporate records. Laurie stated that
she never concealed or failed to disclose any documents or facts to Elisa regarding her alleged
ownership of P & L Finance.
We conclude that Elisa failed to produce sufficient evidence to create a genuine issue of
material fact of fraud or misrepresentation to toll the four-year statute of limitations. Elisa filed
this action on June 9, 2014, almost ten years after the statute of limitations expired. Accordingly,
her claim for specific performance for the issuance of a stock certificate is time-barred by the
statute of limitations.
Remaining Causes of Action.
In addition to her cause of action seeing specific performance for the issuance of a stock
certificate, Elisa brought nine other causes of action: conversion, equitable estoppel, fraudulent
misrepresentation, aiding and abetting, civil conspiracy, unjust enrichment, constructive trust,
director breach of fiduciary duties, and officer breach of fiduciary duties. We agree with the trial
court that all of Elisa’s claims are predicated on her alleged status as a shareholder. Because her
ability to seek the issuance of a stock certificate is barred by the statute of limitations and she
cannot prove she is a shareholder, her other claims predicated on her status as a shareholder must
also be dismissed.
Even if some or all of Elisa’s nine remaining causes of action were not predicated on her
claimed ownership in P & L Finance, the claims are barred by various 4-year statutes of limitations.
See, Neb. Rev. Stat. § 25-207 (Reissue 2016) (setting forth 4-year statute of limitations for actions
for conversion, other torts, and fraud); Neb. Rev. Stat. § 25-211 (Reissue 2016) (setting forth
4-year statute of limitations for accounting and monetary judgment); Neb. Rev. Stat. § 25-212
(Reissue 2016) (setting forth 4-year statute of limitations for actions not specified).
-6-
CONCLUSION
We conclude that the trial court did not err in granting summary judgment in favor of
appellees and in dismissing Elisa’s action. Accordingly, the order of the district court is affirmed.
AFFIRMED.
-7-