Rudd v. Debora , 20 Neb. Ct. App. 850 ( 2013 )

Decisions of the Nebraska Court of Appeals
850 20 NEBRASKA APPELLATE REPORTS
Richard Rudd, appellant, v.
Hank Debora, appellee.
___ N.W.2d ___
Filed June 18, 2013. No. A‑12‑196.
1. Summary Judgment. Summary judgment is proper when the pleadings, deposi‑
tions, admissions, stipulations, and affidavits in the record disclose that there is
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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the 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.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
4. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. The language of
Neb. Rev. Stat. § 25‑217 (Reissue 2008) has been deemed to be self‑executing
and mandatory, depriving the trial court of jurisdiction by operation of law.
5. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat. § 25‑217
(Reissue 2008) is self‑executing, so that an action is dismissed by operation of
law, without any action by either the defendant or the court, as to any defendant
who is named in the action and not served with process within 6 months after the
complaint is filed.
6. ____: ____. Neb. Rev. Stat. § 25‑217 (Reissue 2008) has no provision for an
extension of time in which to obtain service of summons or any exceptions to
the 6‑month time limit. Therefore, a defendant must be served within 6 months
from the date the complaint was filed, regardless of whether the plaintiff falsely
believed he had served the correct defendant.
7. Pleadings: Appeal and Error. An appellate court reviews a district court’s deci‑
sion on a motion for leave to amend a complaint for an abuse of discretion, but a
district court’s discretion to deny such leave is limited.
8. ____: ____. A district court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad faith on the part of
the moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
Matthew A. Lathrop, of Law Office of Matthew A. Lathrop,
P.C., L.L.O., for appellant.
Michael F. Scahill and Patrick B. Donahue, of Cassem,
Tierney, Adams, Gotch & Douglas, for appellee.
Decisions of the Nebraska Court of Appeals
RUDD v. DEBORA 851
Cite as 20 Neb. Ct. App. 850Irwin, Moore, and Pirtle, Judges.
Pirtle, Judge.
INTRODUCTION
Richard Rudd brought a negligence action against “Hank
Debora,” whose actual name is “Henk Marten deBoer,” in the
district court for Douglas County. The father of the intended
defendant, who shares the exact same name as his son, was
served with summons rather than the son. The district court
granted summary judgment in favor of the father and dismissed
Rudd’s complaint with prejudice. Rudd appeals. Based on the
reasons that follow, we affirm.
BACKGROUND
On June 17, 2010, Rudd filed a complaint against Henk
Marten deBoer, sued as “Hank Debora,” alleging that on
December 6, 2006, Rudd was walking in the parking lot of
what was then the “Qwest Center” in Omaha, when deBoer
ran at Rudd from behind and jumped on him, causing him to
fall forward and suffer personal injuries. The Henk Marten
deBoer that allegedly caused Rudd’s injuries shares the same
exact name as his father. Neither one uses a designation such
as “Sr.” or “Jr.” to distinguish his name. For purposes of
this opinion, we will refer to one as the son and the other as
the father.
In the fall of 2009, prior to the complaint’s being filed,
Rudd’s attorney contacted C.G. Jolly, an attorney who was
representing the son in a divorce action at the time, to find out
the name of the son’s homeowner’s insurance carrier, because
Rudd intended to file a claim based on the injuries caused by
the son. Jolly indicated that he would contact the son and get
the information Rudd needed, which he did. A claim was made
with the insurance company, and it was denied.
On August 31, 2010, the father was served with a summons
and complaint at Hand Picked Auto, his place of business,
located in Council Bluffs, Iowa. The praecipe requested sum‑
mons for personal service upon “Hank Debora” by a sheriff
at the named defendant’s place of business, Hand Picked
Auto, which is a car dealership started by the son in 2002. In
January 2010, the son turned the dealership over to his father.
Decisions of the Nebraska Court of Appeals
852 20 NEBRASKA APPELLATE REPORTS
Since that time, the son has had no involvement with Hand
Picked Auto.
The father testified in his deposition, taken by Rudd’s attor‑
ney, that when the sheriff came to serve the summons and
complaint on August 31, 2010, regarding an incident at the
Qwest Center, he told the sheriff that the complaint would be
for his son and that his son could be found at Performance
Chrysler Jeep Dodge, his place of employment, located in
La Vista, Nebraska, in about 2 weeks, because his son was out
of town at the time.
On September 15, 2010, the father again was served with
another summons and complaint at Hand Picked Auto. The
father testified that he again told the sheriff that if the papers
had anything to do with an incident at the Qwest Center, the
sheriff needed to go to Performance Chrysler Jeep Dodge in
La Vista, which was where his son worked. The father testified
that despite what he told the sheriff, the sheriff left the paper‑
work with him.
The father further testified that a few weeks later, he asked
his son about whatever became of the Qwest Center incident
and his son told him that the insurance company had denied
Rudd’s claim, so it was over. The father testified that he told
his son a sheriff had dropped off some paperwork at Hand
Picked Auto and that the son again stated, “[T]hat thing is
all over.”
The son testified in his deposition that at some point after
the sheriff had left the papers on September 15, 2010, his
father told him about the papers and that they involved Rudd.
The son testified that he did not realize Rudd was attempting
to sue him for the Qwest Center incident, because his insur‑
ance company had previously told him that Rudd’s claim had
been denied, so he believed any claim Rudd had against him
was finished. The son assumed Rudd was attempting to sue
the car dealership for some other matter and told his father
that he should hire an attorney. The son subsequently asked
Grant A. Forsberg, a law partner of Jolly’s, to contact his
father to discuss documents he had received from the sheriff.
Forsberg called the father and learned that he had been served
with a summons and complaint on two occasions, but that
Decisions of the Nebraska Court of Appeals
RUDD v. DEBORA 853
Cite as 20 Neb. Ct. App. 850he was not the person involved in the incident set forth in
the complaint.
On October 18, 2010, the father filed a motion for leave to
file an answer out of time. The court entered a stipulated order
allowing additional time to plead. On November 22, the father
filed an answer which consisted of a general denial.
On December 21, 2011, the father filed a motion for sum‑
mary judgment. A hearing on the motion was held and evi‑
dence presented, including two affidavits and the deposition
of the father, the deposition of the son, and an affidavit of
Forsberg. At the hearing, Rudd made an oral motion to amend
the pleadings to correct or substitute the name of the defendant,
which motion was denied. On February 14, 2012, the court
sustained the father’s motion for summary judgment and dis‑
missed Rudd’s complaint with prejudice.
ASSIGNMENTS OF ERROR
Rudd assigns, restated, that the trial court erred in (1) failing
to allow him to proceed with his claim against the son and (2)
dismissing his complaint with prejudice.
STANDARD OF REVIEW
[1,2] Summary judgment is proper when the pleadings,
depositions, admissions, stipulations, and affidavits in the
record disclose that there is 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. Smeal v. Olson, 263 Neb. 900, 644 N.W.2d
550 (2002). In reviewing a summary judgment, an appellate
court views the evidence in the 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. Id.
[3] When reviewing questions of law, an appellate court has
an obligation to resolve the questions independently of the con‑
clusion reached by the trial court. Id.
ANALYSIS
We first note that Rudd does not argue that the court erred
in granting summary judgment in favor of the father. At the
Decisions of the Nebraska Court of Appeals
854 20 NEBRASKA APPELLATE REPORTS
summary judgment hearing, Rudd’s attorney admitted that
based on the evidence presented, the father was entitled to
summary judgment. The father was the only individual served
with a summons and Rudd’s complaint, and the father’s affi‑
davit and deposition made it clear that he had no involvement
in the incident at the Qwest Center on December 6, 2006, as
set forth in the complaint. Rather, it was his son who was
involved in the incident at the Qwest Center and was the
intended defendant. The evidence is undisputed that the father
was not the individual involved in the incident described in
Rudd’s complaint, and he was, therefore, entitled to sum‑
mary judgment.
Although Rudd does not challenge the granting of summary
judgment in favor of the father, he makes several arguments as
to why he should be allowed to serve the son with summons
and proceed with his claim against him.
Rudd first argues that he should be allowed to serve the
son with summons, because the father knew that the wrong
individual had been served and he had a duty to provide Rudd
with notice of such error but failed to do so. Rudd argues that
the Nebraska Court Rules of Pleading in Civil Cases require
action on the part of a defendant who believes the wrong indi‑
vidual was served with summons or questions any aspect of
service. He suggests that the rules required the father, either
by motion or in his answer, to affirmatively allege that he was
not the individual described in the complaint.
Neb. Rev. Stat. § 25‑516.01 (Reissue 2008) provides that
a defense of lack of personal jurisdiction or insufficiency
of service of process may be asserted only under the proce‑
dure provided in the pleading rules adopted by the Nebraska
Supreme Court.
Neb. Ct. R. Pldg. § 6‑1112(b) provides that every defense
to a claim for relief in any pleading shall be asserted in a
responsive pleading, but also allows for certain defenses to
be raised by motion at the option of the pleader. The defenses
that may be raised by motion or responsive pleading include,
among others, lack of jurisdiction over the person and insuf‑
ficiency of process. In the present case, the father did not file
a motion raising a defense and did not raise a defense in his
Decisions of the Nebraska Court of Appeals
RUDD v. DEBORA 855
Cite as 20 Neb. Ct. App. 850answer, but, rather, filed a general denial. See Neb. Ct. R.
Pldg. § 6‑1108(b).
Rudd contends that service of summons on the wrong indi‑
vidual falls under a lack of personal jurisdiction defense or an
insufficiency of service of process defense and that therefore,
the father was required to raise such defenses in his answer or
by motion. We disagree. The father was properly served with a
valid summons, and the court thereby obtained personal juris‑
diction over him. There is no question of personal jurisdiction
over the father, and there are no objections to the service of
summons on the father. Accordingly, there was no need for the
father to raise these issues in his answer or in a motion, and
further, the court rules do not require him to raise in his answer
or by motion that the wrong individual was served.
Rudd also argues that the father’s filing of a motion to
extend the answer deadline and his filing of an answer request‑
ing dismissal of Rudd’s lawsuit was a “voluntary appearance”
by the father. He contends that because of the voluntary
appearance, the father waived any objections to personal juris‑
diction or service of process. Rudd relies on § 25‑516.01(1),
which provides that the voluntary appearance of the party is
equivalent to service.
Again, as previously discussed, the father was properly
served and the district court obtained personal jurisdiction over
him. The father did not allege any error or raise any objections
in connection with service of process upon him or personal
jurisdiction, so there were no errors to be waived.
Further, in regard to any claim against the son, a voluntary
appearance by the father does not waive any error in service
on behalf of the son. The son has never been served with a
summons and has never made an appearance in this case. A
voluntary appearance of the father has no effect on the lack of
service of process upon the son.
Rudd next argues that he should be allowed to serve the son
outside the statutory time limit for service of process, because
the father purposefully led him to believe that the right indi‑
vidual had been served. In Nebraska, a defendant must be
served with summons within 6 months after the complaint is
filed. Specifically, Neb. Rev. Stat. § 25‑217 (Reissue 2008)
Decisions of the Nebraska Court of Appeals
856 20 NEBRASKA APPELLATE REPORTS
provides: “An action is commenced on the date the complaint
is filed with the court. The action shall stand dismissed without
prejudice as to any defendant not served within six months
from the date the complaint was filed.” In the instant case,
the 6‑month grace period for service of process expired on
December 18, 2010.
In his brief, Rudd discusses several cases from other juris‑
dictions to support his argument that he should be granted
additional time to serve a summons on the son because he was
misled by the actions of the father. See, Eddinger v. Wright,
904 F. Supp. 932 (E.D. Ark. 1995); In re Hollis and Co., 86
B.R. 152 (Bankr. E.D. Ark. 1988); Ditkof v. Owens‑Illinois,
Inc., 114 F.R.D. 104 (E.D. Mich. 1987). However, the appli‑
cable service of process rule in each of the cases on which
he relies allowed for a defendant to be served outside the
set timeframe for serv­ce of process upon a showing of good
i
cause. The cases relied on by Rudd are distinguishable from
the present case because § 25‑217 does not allow for any
such exception.
[4] As previously stated, § 25‑217 provides that “[t]he action
shall stand dismissed without prejudice as to any defendant
not served within six months from the date the complaint was
filed.” The statutory language has been deemed to be self‑­
executing and mandatory, depriving the trial court of jurisdic‑
tion by operation of law. See Vopalka v. Abraham, 260 Neb.
737, 619 N.W.2d 594 (2000).
In Smeal v. Olson, 10 Neb. Ct. App. 702, 636 N.W.2d 636(2001), reversed on other grounds, Smeal v. Olson, 263 Neb.
900, 644 N.W.2d 550 (2002), the Nebraska Court of Appeals
specifically found that one of the cases relied on by Rudd,
Eddinger v. Wright, supra, was not supported by Nebraska law.
The plaintiff in Smeal v. Olson, supra, made a similar argument
to the one Rudd is making, that a plaintiff should be allowed to
serve the correct party after the expiration of the grace period
for perfecting service because the plaintiff was led to believe
that the right defendant had been served.
In Smeal v. Olson, supra, Rickard K. Olson was served
with a petition filed by the plaintiff, alleging that the defend­
ant negligently caused a motor vehicle accident. Rickard K.
Decisions of the Nebraska Court of Appeals
RUDD v. DEBORA 857
Cite as 20 Neb. Ct. App. 850Olson initially filed an answer admitting that he was the driver
of the vehicle, but later indicated that it was actually his son,
Rickard W. Olson, who was driving the vehicle at issue. The
son was ultimately served, albeit after the statute of limitations
had run and after the 6‑month time limit for service of sum‑
mons allowed by § 25‑217. The district court sustained the
son’s motion for summary judgment and dismissed the action
against him.
In regard to the plaintiff’s being misled into believing he
served the right defendant, the Court of Appeals found:
Although the father’s answer certainly qualifies as
“artful” avoidance, and perhaps part of a “scheme” of
deception, . . . we note that § 25‑217 does not allow
Nebraska courts to extend the time for service of process
. . . . [T]he Nebraska courts have held that § 25‑217 is a
self‑executing statute which, once the 6 months has run,
deprives the district court of jurisdiction to take any fur‑
ther action in the case. . . .
In a phrase, we have construed § 25‑217 as having
a “drop dead” effect for a case in which service is not
perfected within the grace period. Thus, while the court’s
opinion in Eddinger v. Wright, supra, may resonate with
our sense of justice, we are bound to decide this case
under Nebraska law. And, the “drop dead” feature of our
grace period statute means that Eddinger v. Wright is
distinguishable. The Arkansas statute specifically allows
a court‑ordered extension, but under the present state of
Nebraska law, courts lack the ability to expand the grace
period or dispense with the statute of limitations. If the
grace period is to be expanded . . . then the Legislature
must change the statute, we cannot.
Smeal v. Olson, 10 Neb. App. at 710‑11, 636 N.W.2d at 643‑44.
[5] This court and the Nebraska Supreme Court have repeat‑
edly held that § 25‑217 is self‑executing, so that an action is
dismissed by operation of law, without any action by either the
defendant or the court, as to any defendant who is named in
the action and not served with process within 6 months after
the complaint is filed. See Davis v. Choctaw Constr., 280 Neb.
714, 789 N.W.2d 698 (2010).
Decisions of the Nebraska Court of Appeals
858 20 NEBRASKA APPELLATE REPORTS
[6] Section 25‑217 has no provision for an extension of time
in which to obtain service of summons or any exceptions to the
6‑month time limit. Therefore, in Nebraska, a defendant must
be served within 6 months from the date the complaint was
filed, regardless of whether the plaintiff falsely believed he
had served the correct defendant. Rudd cannot be granted addi‑
tional time to serve a summons on the son because he allegedly
was misled by the actions of the father.
Rudd next argues that the trial court erred in denying him
the opportunity to amend his complaint and in dismissing his
complaint with prejudice. He contends that if he were allowed
to amend his complaint, it would “relate back” to the timely
filed original complaint, allowing him to maintain the action
against the son. At the summary judgment hearing, Rudd made
an oral motion to amend the pleadings to name the correct
defendant and to include allegations that the son had construc‑
tive notice of the lawsuit. The court denied the motion to
amend the pleadings.
[7,8] Neb. Ct. R. Pldg. § 6‑1115(a) provides: “[A] party may
amend the party’s pleading only by leave of court or by written
consent of the adverse party, and leave shall be freely given
when justice so requires.” We review a district court’s decision
on a motion for leave to amend a complaint for an abuse of
discretion, but a district court’s discretion to deny such leave is
limited. Gonzales v. Union Pacific RR. Co., 282 Neb. 47, 803
N.W.2d 424 (2011). A district court’s denial of leave to amend
pleadings is appropriate only in those limited circumstances in
which undue delay, bad faith on the part of the moving party,
futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated. Id.
In the instant case, the district court did not abuse its discre‑
tion in denying Rudd’s motion for leave to amend the plead‑
ings; amending the pleadings would have been futile in this
case, because the amended pleadings would not “relate back”
to the original complaint, as Rudd contends.
Nebraska’s relation‑back statute, Neb. Rev. Stat. § 25‑201.02
(Reissue 2008), provides in pertinent part as follows:
(2) If the amendment [to a pleading] changes the party
or the name of the party against whom a claim is asserted,
Decisions of the Nebraska Court of Appeals
RUDD v. DEBORA 859
Cite as 20 Neb. Ct. App. 850the amendment relates back to the date of the origi‑
nal pleading if (a) the claim or defense asserted in the
amended pleading arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in the
original pleading, and (b) within the period provided for
commencing an action the party against whom the claim
is asserted by the amended pleading (i) received notice
of the action such that the party will not be prejudiced
in maintaining a defense on the merits and (ii) knew or
should have known that, but for a mistake concerning the
identity of the proper party, the action would have been
brought against the party.
Even if Rudd were allowed to amend the complaint, it
would not change “the party or the name of the party against
whom [the] claim is asserted,” as necessary for § 25‑201.02(2)
to be applicable. The son was the intended defendant in the
complaint and would remain so in an amended complaint.
Although an amended complaint could correct the spelling
of the defend­ nt’s name, such a change is meaningless here,
a
inasmuch as the parties agree the original spelling of the
defendant’s name in the complaint is simply a misspelling or
misnomer. Correcting the spelling changes nothing as far as the
party against whom the claim is asserted and would not clear
up any confusion, because the father and the son have the exact
same name.
Although Rudd’s attorney made a motion for leave to amend
his complaint at the summary judgment hearing, he previously
admitted at that same hearing that there was no reason to
amend the complaint: “I can’t amend my pleading here because
[it’s] correct. . . . [A]s I said, I can’t amend the pleadings.”
The failure in this case is not in naming the right defendant;
the failure is in not serving the correct individual who was
involved in the incident described in the complaint.
In addition, if Rudd were allowed to file an amended com‑
plaint, the relation‑back statute would not apply to the amended
complaint unless he could show that the son had notice of the
action “within the period provided for commencing an action”
or, stated differently, that he had notice prior to the statute of
limitations’ expiring.
Decisions of the Nebraska Court of Appeals
860 20 NEBRASKA APPELLATE REPORTS
The statute of limitations for a personal injury claim in
Nebraska is 4 years from the date of the tortious act. See Neb.
Rev. Stat. § 25‑207 (Reissue 2008). The statute of limitations
for Rudd’s cause of action expired on December 7, 2010.
The evidence presented at the summary judgment hearing
showed that the son did not have notice of the action prior to
the statute of limitations’ expiring. The son testified that some‑
time after his father was served with summons in September
2010, his father told him he had been served with some paper‑
work involving Rudd. The son testified that he believed Rudd
was suing his father’s business for something unrelated to the
Qwest Center incident. He formed this belief because his insur‑
ance company had told him Rudd’s claim against him in regard
to the Qwest Center incident had been denied.
The son also testified that in the year 2010, he did not know
Rudd had sued him for injuries arising out of the incident at the
Qwest Center. Further, when asked when he first became aware
that the present action was a lawsuit filed by Rudd against
him, the son responded that he did not know until his new
attorney called and told him. The record shows that his new
attorney entered his appearance as the son’s counsel on January
13, 2011, well after the statute of limitations had expired on
December 7, 2010.
The father testified that after being served, he asked his son
about the Qwest Center incident and told him that some paper‑
work had been dropped off by the sheriff involving Rudd. The
father testified his son responded that the insurance company
had denied Rudd’s claim and that therefore, any claim against
him was over.
In summary, we acknowledge this is a very unique set of
facts, but allowing Rudd to amend his complaint would have
been futile, because the relation‑back statute would not apply,
i.e., the amended complaint would not relate back to the date
of the original complaint. Accordingly, any amended complaint
would be barred by the applicable statute of limitations.
CONCLUSION
We conclude that under this unusual set of facts, the dis‑
trict court properly granted summary judgment in favor of
Decisions of the Nebraska Court of Appeals
GEISS v. GEISS 861
Cite as 20 Neb. Ct. App. 861the father. We further conclude that the statute of limita‑
tions and the grace period for service of process have both
expired and that the relation‑back statute is inapplicable in the
instant case. Accordingly, the district court properly dismissed
Rudd’s claim with prejudice. The judgment of the district
court is affirmed.
Affirmed.
Morgan R. Geiss, now known as
Morgan R. Bennett, appellee,
v. Eric M. Geiss, appellant.
___ N.W.2d ___
Filed June 18, 2013. No. A-12-564.
1. Child Custody: Visitation: Appeal and Error. Child custody determinations,
and visitation determinations, are matters initially entrusted to the discretion of
the trial court, and although reviewed de novo on the record, the trial court’s
determinations will normally be affirmed absent an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrains
from acting, and the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit‑
ted for disposition through a judicial system.
3. Appeal and Error. Although an appellate court ordinarily considers only those
errors assigned and discussed in the briefs, the appellate court may, at its option,
notice plain error.
4. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
5. ____: ____: ____. An appellant’s failure to object to the limitation imposed
by the trial judge effectively waives the right to raise that ruling as an error
on appeal.
6. Appeal and Error. An appellate court may consider an issue not raised to the
trial court if such issue amounts to plain error.
7. ____. Plain error may be asserted for the first time on appeal or be noted by the
appellate court on its own motion.
8. Appeal and Error: Words and Phrases. Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected would result in dam‑
age to the integrity, reputation, or fairness of the judicial process.
9. Effectiveness of Counsel. A pro se litigant is held to the same standard as one
who is represented by counsel, and the trial court has the inherent power to com‑
pel conformity with Nebraska procedural practice.