Farmers Mut. Ins. Co. v. Cox

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
FARMERS MUT. INS. CO. V. COX
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).
FARMERS MUTUAL INSURANCE COMPANY OF NEBRASKA, APPELLEE,
V.
BRAD T. COX, APPELLANT.
Filed January 27, 2015. No. A-14-172.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.
Robert S. Lannin, of Shively & Lannin, P.C., L.L.O., for appellee.
IRWIN, RIEDMANN, and BISHOP, Judges.
RIEDMANN, Judge.
INTRODUCTION
Brad T. Cox appeals from an order of the district court for Lancaster County denying his
motion for summary judgment and granting summary judgment in favor of Farmers Mutual
Insurance Company of Nebraska (Farmers Mutual). Finding no merit to Cox’s assignment of
error on appeal, we affirm the district court’s decision.
BACKGROUND
In April 2003, Cox’s residence in Lincoln, Nebraska was destroyed by a fire. Cox made a
claim on his homeowner’s insurance with Farmers Mutual, upon which Farmers Mutual
investigated the claim and was informed by law enforcement that Cox was not considered a
suspect in causing the fire. Farmers Mutual paid Cox approximately $196,000 for damage to the
property, personal property loss, and loss of use of the premises.
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On June 4, 2007, Farmers Mutual was advised by the fire investigator that Cox was
responsible for causing the fire. Before that date, Farmers Mutual had no reason to suspect that
Cox was involved. In March 2008, Cox was criminally charged with second degree arson and
entered a plea of no contest to that charge in November 2009. Cox failed to appear for his
scheduled sentencing hearing on November 17, and a warrant was issued for his arrest.
After he absconded, Cox resided in California under a different name for at least two
years. His whereabouts were unknown to Farmers Mutual until July 2012, when he was arrested
in California for driving under the influence and was extradited to Nebraska.
On January 14, 2013, Farmers Mutual filed a complaint against Cox alleging conversion,
unjust enrichment and misrepresentation. Farmers Mutual alleged that the statute of limitations
was tolled during the time that Cox absconded from the State of Nebraska. Cox filed an answer
denying the allegations in the complaint and alleging that the action was untimely.
Farmers Mutual and Cox each filed motions for summary judgment. During the hearing
on the motions, Farmers Mutual offered a number of affidavits and a transcript of the plea and
sentencing proceedings in the criminal action against Cox. The evidence presented was
consistent with the facts stated above. The district court granted summary judgment in favor of
Farmers Mutual. It found that the four-year statute of limitations on Farmers Mutual’s action was
tolled during the time that Cox absconded under Neb. Rev. Stat. § 25-214 (Reissue 2008), and
therefore, the complaint was timely filed. It further found that there were no genuine issues of
material fact as to whether Cox converted the insurance proceeds and was unjustly enriched by
retaining them. Thus, it determined that Farmers Mutual was entitled to judgment as a matter of
law and denied Cox’s motion for summary judgment. Cox timely appeals from that judgment.
ASSIGNMENTS OF ERROR
Cox assigns that the district court erred in applying the tolling provision of Neb. Rev.
Stat. § 25-214 to Farmer’s Mutual’s untimely claim and denying Cox’s motion for summary
judgment.
STANDARD OF REVIEW
Statutory interpretation is a question of law, which an appellate court resolves
independently of the trial court. State v. Hansen, 289 Neb. 478, 855 N.W.2d 777 (2014).
ANALYSIS
Cox’s assignment of error has two parts. He assigns that the district court erred in
applying the tolling provision of Neb. Rev. Stat. § 25-214, and in denying Cox’s motion for
summary judgment.
Although the denial of a motion for summary judgment, standing alone, is not a final,
appealable order, when adverse parties have each moved for summary judgment and the trial
court has sustained one of the motions, the reviewing court obtains jurisdiction over both
motions and may determine the controversy which is the subject of those motions or make an
order specifying the facts which appear without substantial controversy and direct such further
proceedings as it deems just. American Family Ins. Group v. Hemenway, 254 Neb. 134, 575
N.W.2d 143 (1998). Therefore, we have jurisdiction over the denial of Cox’s motion for
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summary judgment. However, we do not address the merits of this portion of the assigned error
because Cox does not provide any argument in his brief in support of it. In order to be considered
by an appellate court, an alleged error must be both specifically assigned and specifically argued
in the brief of the party asserting the error. Irwin v. West Gate Bank, 288 Neb. 353, 848 N.W.2d
605 (2014).
We now to turn to the issue of whether the district court erred in applying the tolling
provision of Neb. Rev. Stat. § 25-214. That provision states as follows:
If a cause of action accrues against a person while he or she is out of the state or has
absconded or concealed himself or herself, the period limited for the commencement of
the action shall not begin to run (1) until he or she comes into the state or (2) while he or
she is absconded or concealed. If a person departs from the state or absconds or conceals
himself or herself after a cause of action accrues, the time of his or her absence of
concealment shall not be computed as any part of the period within which the action must
be brought.
There is no dispute that Cox absconded when he failed to appear for his sentencing
hearing on November 17, 2009. To “abscond” means to be concealed in order to avoid a court’s
process. Smith v. Johnson, 43 Neb. 754, 62 N.W. 217 (1895). The court issued a warrant for
Cox’s arrest, but due to his absence from the state, it was not executed until he was arrested in
California and returned to Nebraska in July 2012. Until then, Farmers Mutual had no knowledge
of Cox’s whereabouts. In his brief, Cox states that “[b]ut for the tolling statute, Farmers Mutual’s
causes of action would be time barred by no later than June 4, 2011.” The district court found
that Farmers Mutual’s claim accrued no earlier than June 4, 2007, and using the four-year statute
of limitations contained in Neb. Rev. Stat. §§ 25-207 (Reissue 2008) and 25-212 (Cum. Supp.
2014), we find this consistent with Cox’s position that the statute of limitations expired no later
than June 4, 2011. Because Cox has not appealed this finding, we too, will use June 4, 2007 as
the date on which Farmers Mutual’s cause of action accrued and the statute of limitation began to
run. Thus, applying the statutory language to the facts of this case, we find that Cox absconded
after Farmers Mutual’s cause of action accrued, and therefore, the time of his concealment from
November 17, 2009 until July 2012 was properly excluded from the limitations period.
Cox’s argument is that the long arm statutes, Neb. Rev. Stat. §§ 25-535 through 25-541
(Reissue 2008), modified and rendered § 25-214 inapplicable. In support of this argument, Cox
relies on Dalition v. Langemeier, 246 Neb. 993, 524 N.W.2d 336 (1994), which holds that the
tolling provision in § 25-214 does not suspend the statute of limitations when one is absent from
the state but nonetheless remains amenable to the service of personal process.
We agree with Cox that Nebraska courts were authorized under the long-arm statutes to
exercise personal jurisdiction over him on the basis that he caused tortious injury in this state.
See § 25-536(1)(c) (Reissue 2008). When the exercise of personal jurisdiction is authorized by
the long-arm statutes, service may be made outside this state. See Neb. Rev. Stat. § 25-537
(Reissue 2008). However, the problem with Cox’s argument is that he was not amenable to
personal process outside this state because he was living under an assumed name and his
whereabouts were unknown. In other words, although service outside the state would have been
permissible under the long-arm statutes, it was simply not possible to obtain personal service
upon him because Farmers Mutual had no way of knowing where Cox was located. Thus, the
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district court properly applied the tolling provision in § 25-214 during the period that Cox
absconded from the state and was unavailable for service.
Cox also argues that Farmers Mutual was not prevented from bringing an action against
him because he was amenable to substitute or constructive service. He claims that under the
long-arm statute, § 25-540(1)(d), that service could have been made outside the state in a manner
“‘reasonably calculated to give actual notice’ as ‘directed by the court.’” He then cites
§ 25-517.02, which states:
Upon motion and showing by affidavit that service cannot be made with
reasonable diligence by any other method provided by statute, the court may permit
service to be made (1) by leaving the process at the defendant’s usual place of residence
and mailing a copy by first-class mail to the defendant’s last-known address, (2) by
publication, or (3) by any manner reasonably calculated under the circumstances to
provide the party with actual notice of the proceedings and an opportunity to be heard.
Specifically, Cox argues that he was available for service while in California “through
publication or through any method of service as directed by the court.” We disagree that this is
the minimum threshold established by Dalition v. Langemeier, supra. In that case, the court
spoke specifically of being amenable to “service of personal process.” Id. at 1000, 524 N.W.2d at
341. Neither Dalition v. Langemeier, nor the cases upon which it relies, make any reference to
constructive service. Neb. Rev. Stat. § 25-505.01 (Cum. Supp. 2014) delineates the manner in
which service of summons may be accomplished. It is only when service cannot be
accomplished pursuant to one of these methods that a court may allow constructive service by
publication or another method of service “reasonably calculated under the circumstances to
provide the party with actual notice of the proceedings and an opportunity to be heard.” Neb.
Rev. Stat. § 25-517.02 (Reissue 2008). If we were to extend the Dalition holding to constructive
service, we would invalidate § 25-214, and we decline to do so. In the absence of clear
legislative intent, the construction of a statute will not be adopted which has the effect of
nullifying another statute. Volquardson v. Harford Ins. Co. of the Midwest, 264 Neb. 337, 647
N.W.2d 599 (2002). We therefore hold that the district court properly applied the tolling
provision of § 25-214.
CONCLUSION
The district court did not err in applying § 25-214 to toll the statute of limitations during
the period that Cox absconded.
AFFIRMED.
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