Mandolfo v. Mandolfo
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Nebraska Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Nebraska Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Joseph (Joe) Mandolfo sued his brother Mario and American National Bank (ANB). At one time, Joe owned several businesses, some of which had accounts with ANB. After his brother Mario lost his job as a teacher, Joe hired Mario to work for him. Joe alleged that Mario had, with the help of ANB, wrongfully deposited checks intended for Joe’s business, into his own account. From 1995 until 2000, Joe contended that Mario embezzled about $1.2 million. The district court granted summary judgment to Joe against Mario. The court however, also granted summary judgment to ANB, concluding that a statute of limitations barred Joe’s claims against the bank. Joe appealed the grant of summary judgment to the bank. The Supreme Court concluded that Joe’s claims were governed by the Uniform Commercial Code, and as a result, were subject to a three-year statute of limitations. Joe did not discover Mario’s misappropriations until 2003. Accordingly, the Court affirmed the lower court’s decision to dismiss Joe’s claims against the bank as untimely.
Download PDF
Nebraska Advance Sheets
mandolfo v. mandolfo
Cite as 281 Neb. 443
443
Joseph Mandolfo, appellant, v. Mario Mandolfo
and A merican National Bank, appellees.
___ N.W.2d ___
Filed May 6, 2011.
No. S-09-1175.
1. Summary Judgment: Appeal and Error. 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 the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. 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. Uniform Commercial Code: Claims. Whether common-law claims are displaced by the Uniform Commercial Code presents a question of law.
4. Limitations of Actions. Which statute of limitations applies is a question
of law.
5. Judgments: Appeal and Error. An appellate court reaches a conclusion regarding questions of law independently of the trial court’s conclusion.
6. Pretrial Procedure: Appeal and Error. Determination of an appropriate sanction for failure to comply with a proper discovery order initially rests with the
discretion of the trial court, and its rulings on appropriate sanctions will not be
disturbed on appeal absent a showing of an abuse of that discretion.
7. Uniform Commercial Code. Often, the common law will supplement the
Uniform Commercial Code.
8. ____. The common law will not supplement the Uniform Commercial Code when
it is displaced by particular provisions of the code.
9. Uniform Commercial Code: Actions. When a provision of the Uniform
Commercial Code applies, a litigant cannot rely on common-law causes
of action.
10. Uniform Commercial Code: Limitations of Actions: Conversion. When dealing with Neb. U.C.C. § 3-420 (Reissue 2001) claims, courts generally hold that
the cause of action “accrues” at the time the instrument is converted.
11. Actions: Conversion. Each conversion constitutes its own cause of action.
12. Limitations of Actions: Negotiable Instruments. The overwhelming majority rule is that the discovery rule does not apply to cases involving negotiable
i
nstruments.
13. Uniform Commercial Code: States. One of the purposes of the Uniform
Commercial Code is to make uniform the law among the various jurisdictions.
14. Uniform Commercial Code: Limitations of Actions: Conversion: Negotiable
Instruments: Fraud. In cases for conversion of a negotiable instrument under
the Uniform Commercial Code, the plaintiff may benefit from the discovery rule
when the defendant has engaged in fraudulent concealment.
15. Appeal and Error. A party that assigns error in a proceeding must point out the
factual and legal bases that show the error.
Nebraska Advance Sheets
444
281 nebraska reports
16. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
acting within effective limits of authorized judicial power, elects to act or refrain
from action, but the selected option results in a decision which is untenable and
unfairly deprives the litigant of a substantial right or a just result.
17. Motions for New Trial: Appeal and Error. An appellate court reviews the
denial of a motion for new trial or to alter or amend the judgment for an abuse
of discretion.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
James B. Cavanagh and Brittney J. Krause, of Lieben,
Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O., for
appellees.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Connolly, J.
Joseph Mandolfo (Joe) sued his brother Mario Mandolfo
and American National Bank (ANB). Joe alleged that Mario
had, with the assistance of ANB, wrongfully deposited checks
into his own account. The district court granted summary
judgment to Joe against Mario. The court, however, granted
summary judgment to ANB, concluding that the statute of limitations barred Joe’s claims. We conclude that Joe’s commonlaw claims are displaced by the Uniform Commercial Code
(U.C.C.) and are thus subject to a 3-year statute of limitations.
Further, we conclude that the application of a discovery rule
is inappropriate to these claims. In sum, Joe’s claims against
ANB were untimely. We affirm.
BACKGROUND
Joe, at one time, owned several businesses, some of which
had accounts with ANB. These businesses included grocery
stores and franchise restaurants. After his brother Mario lost
his job as a teacher, Joe hired Mario to work for him.
Betraying his benefactor, Mario eventually opened his own
accounts at ANB and began depositing checks made out to Joe
or Joe’s companies into these accounts. Based on the record
Nebraska Advance Sheets
mandolfo v. mandolfo
Cite as 281 Neb. 443
445
before us, it appears that Mario misappropriated checks from
December 1995, until July 20, 2000. Joe contends that Mario
embezzled about $1.2 million.
Joe did not discover Mario’s misappropriations until 2003,
when the Internal Revenue Service contacted him about some
“irregularities” that it had uncovered. Within a year of this
discovery, on March 19, 2004, Joe sued Mario and ANB. Joe
alleged that Mario misappropriated checks belonging to Joe
and his companies. He alleged that ANB had assisted Mario’s
misappropriations by failing to exercise reasonable care in
allowing Mario to deposit unendorsed or improperly endorsed
checks. In other words, Joe alleged that through its negligence,
ANB allowed Mario to collect on checks that did not belong
to him.
In October 2004, the court granted Joe summary judgment
on his claims against Mario. Mario—who had asserted his Fifth
Amendment right not to incriminate himself—did not deny the
allegations in Joe’s complaint and offered no evidence to refute
Joe’s claims. The court awarded Joe damages of $678,430.86.
Joe’s claims against Mario are not at issue in this appeal.
In April 2009, Joe moved to compel discovery for his claims
against ANB. Joe had previously served requests for production and interrogatories on ANB, but ANB had not timely
responded. Because ANB took more than 30 days to answer
Joe’s requests, the court awarded Joe attorney fees for the
motion to compel as a sanction against ANB.
In May 2009, ANB moved for summary judgment. ANB
argued, among other things, that Joe’s claims were time barred
under Neb. U.C.C. § 3-118(g) (Cum. Supp. 2010), which provides for a 3-year statute of limitations for conversion claims.
Joe moved to strike ANB’s summary judgment motion. In
support of his motion, Joe cited ANB’s alleged failures to coop
erate with his discovery requests.
The court granted ANB’s motion for summary judgment.
The court concluded that although Joe had couched his claims
against ANB in negligence, he was asserting a claim for conversion under the U.C.C. Because the court concluded that
See Neb. U.C.C. § 3-420 (Reissue 2001).
Nebraska Advance Sheets
446
281 nebraska reports
Joe was asserting a conversion claim, it agreed with ANB that
the 3-year statute of limitations under § 3-118(g) applied. The
court also concluded that the discovery rule did not apply to
toll the time limit for actions for conversion under the U.C.C.
Because Mario converted the last check in July 2000 and Joe
did not file his complaint until March 2004, the court ruled that
Joe’s claims were untimely.
Joe moved for a new trial or, in the alternative, to alter or
amend the judgment. His arguments mirror his arguments in
his present appeal. He argued that the court erred in (1) allowing ANB to proceed to summary judgment when it had failed
to comply with discovery orders, (2) concluding that Joe had
alleged only U.C.C. conversion claims, and (3) applying the
wrong statute of limitations. The court denied Joe’s motion.
ASSIGNMENTS OF ERROR
Joe assigns, restated and renumbered, that the district court
erred as follows:
(1) in granting ANB summary judgment;
(2) in failing to strike ANB’s motion for summary judgment as a sanction for ANB’s failure to comply with discovery
orders; and
(3) in failing to grant Joe’s motion for new trial or to alter or
amend the judgment.
STANDARD OF REVIEW
[1,2] We 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 the facts and that the
moving party is entitled to judgment as a matter of law. In
reviewing a summary judgment, we view the evidence in the
light most favorable to the party against whom the judgment is
granted and give such party the benefit of all reasonable inferences deducible from the evidence.
See Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005).
Id.
Nebraska Advance Sheets
mandolfo v. mandolfo
Cite as 281 Neb. 443
447
[3-5] Whether common-law claims are displaced by the
U.C.C. presents a question of law. Which statute of limitations applies is also a question of law. We reach a conclusion regarding questions of law independently of the trial
court’s conclusion.
[6] Determination of an appropriate sanction for failure to
comply with a proper discovery order initially rests with the
discretion of the trial court, and its rulings on appropriate sanctions will not be disturbed on appeal absent a showing of an
abuse of that discretion.
ANALYSIS
Joe’s Common-Law Claims of Conversion and
Negligence Are Displaced by U.C.C.
In granting ANB summary judgment, the court began by
noting that Joe alleged that ANB allowed Mario to improperly deposit checks belonging to Joe and his companies into
Mario’s account. Joe claimed that ANB failed to exercise
reasonable care in its practices, which, if exercised, would
have prevented Mario’s misappropriations. The court noted that
although Joe tried to characterize this as negligence, what he
was really asserting was a claim for conversion under § 3-420.
Joe claims the court erred in this conclusion. Citing a number
of our cases as well as federal courts applying Nebraska law,
Joe argues that the court erred in concluding that the U.C.C.
See Schlegel v. Bank of America, N.A., 271 Va. 542, 628 S.E.2d 362
(2006).
Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009).
See Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
Booth v. Blueberry Hill Restaurants, 245 Neb. 490, 513 N.W.2d 867
(1994).
Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991); PWA
Farms v. North Platte State Bank, 220 Neb. 516, 371 N.W.2d 102 (1985);
Hydroflo Corp. v. First Nat. Bank, 217 Neb. 20, 349 N.W.2d 615 (1984);
Travelers Indemnity Co. v. Center Bank, 202 Neb. 294, 275 N.W.2d 73
(1979).
Wymore State Bank v. Johnson Intern. Co., 873 F.2d 1082 (8th Cir. 1989);
Progress Rail Services v. Western Heritage Credit, 506 F. Supp. 2d 285 (D.
Neb. 2007).
Nebraska Advance Sheets
448
281 nebraska reports
displaced common-law causes of action such as conversion
and negligence.
[7-9] Joe is correct in his claim that some of our earlier
cases recognized that common-law claims may exist alongside
U.C.C. claims. This remains true. The drafters of the U.C.C.
set out to preserve and, when necessary, clarify and conform
the law merchant with modern commercial practice.10 But it
does not seek to codify the entire body of law regulating commercial transactions.11 So often, the common law will supplement the U.C.C.12 This, however, is not so when the common
law is “displaced by . . . particular provisions of the [U.C.C.]”13
In other words, when a provision of the U.C.C. applies, a litigant cannot rely on common-law causes of action.14 Thus, to
determine whether Joe’s claims of common-law conversion
and negligence are displaced, we consider whether any specific
provision of the U.C.C. covers those claims.
The U.C.C. has undergone substantial revision since we
decided the earlier cases that Joe cites. Neb. U.C.C. § 3-419
(Reissue 1980), the previous section governing conversion of
instruments, was replaced with § 3-420.15 Section 3-420 defines
conversion differently than § 3-419 did. And because § 3-420
applies in different situations than § 3-419 did, it follows that
§ 3-420 will displace common-law claims that § 3-419 did not.
Section 3-420 provides, in relevant part:
(a) The law applicable to conversion of personal property applies to instruments. An instrument is also converted if it is taken by transfer, other than a negotiation,
from a person not entitled to enforce the instrument or
a bank makes or obtains payment with respect to the
10
11
12
13
14
15
C-Wood Lumber Co. v. Wayne County Bank, 233 S.W.3d 263 (Tenn. App.
2007).
Id.
Neb. U.C.C. § 1-103 (Reissue 2001).
Id.
See Stefano v. First Union Nat. Bank of Virginia, 981 F. Supp. 417 (E.D.
Va. 1997).
1991 Neb. Laws, L.B. 161.
Nebraska Advance Sheets
mandolfo v. mandolfo
Cite as 281 Neb. 443
449
i
nstrument for a person not entitled to enforce the instrument or receive payment.
(Emphasis supplied.)
As noted, Joe’s allegations are essentially that ANB allowed
Mario to obtain payment on checks for which he was not entitled to receive payment. The facts that Joe alleged mirror the
last clause of § 3-420. In other words, on the facts before us, a
specific provision of the U.C.C. covers what would otherwise
be a common-law claim for conversion or negligence. Thus,
the U.C.C. displaces those claims. We conclude that Joe’s
allegations are claims for conversion under § 3-420. And our
approach is consistent with the majority rule.16
Statute of Limitations
Having concluded that the U.C.C. displaces Joe’s commonlaw claims, we now determine whether he filed his claims for
conversion within the applicable statute of limitations. Section
3-118(g) sets out the statute of limitations: “Unless governed
by other law regarding claims for indemnity or contribution, an
action (i) for conversion of an instrument, for money had and
received, or like action based on conversion . . . must be commenced within three years after the cause of action accrues.”
16
Berhow v. The Peoples Bank, 423 F. Supp. 2d 562 (S.D. Miss. 2006);
Metz v. Unizan Bank, 416 F. Supp. 2d 568 (N.D. Ohio 2006); Stefano,
supra note 14; ASP Enterprises, Inc. v. Guillory, 22 So. 3d 964 (La.
App. 2009); C-Wood Lumber Co., supra note 10; Gallagher v. Credit
Union, 132 N.M. 552, 52 P.3d 412 (N.M. App. 2002); Halla v. Norwest
Bank Minnesota, N.A., 601 N.W.2d 449 (Minn. App. 1999); Orecchio v.
Connecticut River Bank, N.A., No. 1:08-CV-164, 2009 WL 4931354 (D.
Vt. Dec. 14, 2009) (unpublished opinion); Promissor, Inc. v. Branch Bank
and Trust Co., No. 1:08-CV-1704-BBM, 2008 WL 5549451 (N.D. Ga.
Oct. 31, 2008) (unpublished opinion); Contour Industries, Inc. v. U.S.
Bancorp, No. 2:07-CV-234, 2008 WL 2704431 (E.D. Tenn. July 3, 2008)
(unpublished opinion); Mack v. CTC Ill. Trust Co., No. Civ.A. 04-00083,
2004 WL 1631398 (E.D. Pa. July 20, 2004) (unpublished opinion); Peters
Family Farm, Inc. v. Sav. Bank, No. 10CA2, 2011 WL 497476 (Ohio
App. Jan. 28, 2011) (unpublished opinion); Murphy & Maconachy, Inc.
v. Preferred Bank, No. B206784, 2009 WL 1639528 (Cal. App. June 12,
2009) (unpublished opinion); 2 James J. White & Robert S. Summers,
Uniform Commercial Code § 18-4 (5th ed. 2008 & Supp. 2010). But see
Ross v. Bank of America N.A., 693 F. Supp. 2d 692 (S.D. Tex. 2010).
Nebraska Advance Sheets
450
281 nebraska reports
[10,11] When dealing with § 3-420 claims, courts generally hold that the cause of action “accrues” at the time the
instrument is converted.17 It follows that each of Mario’s many
conversions constituted its own cause of action.18 Further, the
record shows that the last check was deposited July 20, 2000.
Joe filed his complaint on March 19, 2004. So Joe filed his
complaint more than 3 years after Mario converted the last
check. The statute of limitations thus bars his claims.
But Joe argues that the discovery rule saves his claims. The
discovery rule tolls a statute of limitation when the plaintiff
did not discover the injury and could not have discovered the
injury within the applicable statute of limitations.19 The reasoning behind the discovery rule is that, in some cases, the injury
is not obvious and it would be unfair to allow the statute of
limitations on a claim to run out before an injured party had
a chance to seek relief.20 When the discovery rule applies, the
statute of limitations does not begin running until the plaintiff
discovers, or reasonably should have discovered, the injury.21
Joe claims that he did not learn of Mario’s misappropriations until 2003 and that we should apply the discovery rule.
We decline.
[12] Although some courts do apply the discovery rule,22
the overwhelming majority rule is that the discovery rule
17
E.g., Rodrigue v. Olin Employees Credit Union, 406 F.3d 434 (7th Cir.
2005); Stefano, supra note 14; New Jersey Lawyers’ v. Pace, 374 N.J.
Super. 57, 863 A.2d 402 (2005); Pero’s Steak and Spaghetti House v. Lee,
90 S.W.3d 614 (Tenn. 2002).
18
See, Rodrigue, supra note 17; Copier Word Processing v. WesBanco Bank,
220 W. Va. 39, 640 S.E.2d 102 (2006).
19
See Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002).
20
Id.
21
Id.
22
Gallagher, supra note 16; Stjernholm v. Life Ins. Co. of N. Amer., 782
P.2d 810 (Colo. App. 1989); Fine v. Sovereign Bank, No. 06cv11450-NG,
2010 WL 3001194 (D. Mass. July 28, 2010) (unpublished opinion); YF
Trust v. JP Morgan Chase Bank, No. CV 07-567-PHX-MHM, 2008 WL
4277902 (D. Ariz. Sept. 18, 2008) (unpublished opinion); Geraldo v. First
Dominion Mut. Life Ins. Co., No. L-01-1210, 2002 WL 31002770 (Ohio
App. Sept. 6, 2002) (unpublished opinion).
Nebraska Advance Sheets
mandolfo v. mandolfo
Cite as 281 Neb. 443
451
does not apply to cases involving negotiable instruments.23
That is, courts hold that the cause of action accrues and the
limitations period begins running when the instruments are
converted, regardless of when the plaintiff actually learns of
the conversion.
In applying this majority rule, courts promote the U.C.C.’s
purpose of promoting swift resolution of commercial disputes.
A “discovery rule would be inimical to the underlying purposes
of the [U.C.C.], including the goals of certainty of liability,
finality, predictability, uniformity, and efficiency in commercial
transactions.”24 Further, these courts conclude that “‘[t]he finality of transactions promoted by an ascertainable definite period
of liability is essential to the free negotiability of instruments
on which commercial welfare so heavily depends.’”25
23
John Hancock Financial Servs. v. Old Kent Bank, 346 F.3d 727 (6th Cir.
2003); Menichini v. Grant, 995 F.2d 1224 (3d Cir. 1993); Kuwait Airways
Corp. v. American Sec. Bank, N.A., 890 F.2d 456 (D.C. Cir. 1989); Metz,
supra note 16; Calex Exp., Inc. v. Bank of America, 401 F. Supp. 2d 407
(M.D. Pa. 2005); Gress v. PNC Bank, Nat. Ass’n, 100 F. Supp. 2d 289
(E.D. Pa. 2000); Mattlin Holdings, L.L.C. v. First City Bank, 189 Ohio
App. 3d 213, 937 N.E.2d 1087 (2010); Peak Perfor. Phy. Therapy v.
Hibernia Corp., 992 So. 2d 527 (La. App. 2008); Kidney Cancer Ass’n v.
North Shore Comm., 373 Ill. App. 3d 396, 869 N.E.2d 186, 311 Ill. Dec.
512 (2007); AmerUS Life Ins. Co. v. Bank of America, 143 Cal. App. 4th
631, 49 Cal. Rptr. 3d 493 (2006); Auto-Owners Ins. Co. v. Bank One, 852
N.E.2d 604 (Ind. App. 2006), vacated in part on other grounds 879 N.E.2d
1086 (Ind. 2008); New Jersey Lawyers’, supra note 17; Hollywood v. First
Nat. Bank of Palmerton, 859 A.2d 472 (Pa. Super. 2004); Pero’s Steak
and Spaghetti House, supra note 17; Yarbro, Ltd. v. Missoula Fed. Credit
Union, 310 Mont. 346, 50 P.3d 158 (2002); Smith v. Franklin Custodian
Funds, Inc., 726 So. 2d 144 (Miss. 1998); Haddad’s of Illinois v. Credit
Union 1, 286 Ill. App. 3d 1069, 678 N.E.2d 322, 222 Ill. Dec. 710 (1997);
Palmer Mfg. & Supply v. BancOhio Natl., 93 Ohio App. 3d 17, 637 N.E.2d
386 (1994); Husker News Co. v. Mahaska State Bank, 460 N.W.2d 476
(Iowa 1990); Wang v. Farmers State Bank of Winner, 447 N.W.2d 516
(S.D. 1989); Fuscellaro v. Industrial Nat’l Corp., 117 R.I. 558, 368 A.2d
1227 (1977). See, also, Rodrigue, supra note 17.
24
Rodrigue, supra note 17, 406 F.3d at 445-46.
25
Haddad’s of Illinois, supra note 23, 286 Ill. App. 3d at 1075, 678 N.E.2d
at 326, 222 Ill. Dec. at 714, quoting Fuscellaro, supra note 23.
Nebraska Advance Sheets
452
281 nebraska reports
In rejecting the discovery rule, many courts reason that the
victim of conversion is often in the best position to prevent
or detect the loss.26 Watchful victims of conversion should be
able to quickly realize when they have been wronged. Courts
applying such a rationale believe that “the public would be
poorly served by a rule that effectively shifts the responsibility
for careful bookkeeping away from those in the best position
to monitor accounts and employees.”27 Joe would have discovered Mario’s conversions much quicker had he not given Mario
unsupervised power over the books of his companies.
[13] We agree with these courts’ reasoning and add further
that one of the purposes of the U.C.C. is “to make uniform
the law among the various jurisdictions.”28 In the light of this
policy and the almost universal consensus, we adopt the majority rule.
[14,15] We note, however, that there is one exception to
this rule. The plaintiff may benefit from the discovery rule
when the defendant has engaged in fraudulent concealment.29
Joe’s complaint, however, makes no allegation of fraudulent
concealment by ANB that would toll the statute of limitations.
Moreover, his brief before this court points to nothing that creates a genuine issue of material fact regarding fraudulent concealment. A party that assigns error in a proceeding must point
out the factual and legal bases that show the error.30 Finally, in
his deposition, Joe acknowledged that he knew at the time that
funds were disappearing. He stated that because he had someone he trusted, Mario, in charge of the books, he assumed the
embezzlement was being perpetrated by other employees. He
stated that because of the missing funds, “at least a hundred”
lower employees were disciplined, by either being reported to
the police or losing their jobs. So, Joe knew facts that could
26
See Haddad’s of Illinois, supra note 23.
Husker News Co., supra note 23, 460 N.W.2d at 479.
28
Neb. U.C.C. § 1-102(1)(c) (Reissue 2001).
29
See, e.g., Rodrigue, supra note 17; Peak Perfor. Phy. Therapy, supra
note 23; Kidney Cancer Ass’n, supra note 23; Pero’s Steak and Spaghetti
House, supra note 17; Haddad’s of Illinois, supra note 23.
30
See Stiver v. Allsup, Inc., 255 Neb. 687, 587 N.W.2d 77 (1998).
27
Nebraska Advance Sheets
mandolfo v. mandolfo
Cite as 281 Neb. 443
453
have reasonably led to the discovery of his cause of action. He
cannot rely on the doctrine of fraudulent concealment.31
We hold that when bringing a claim for conversion of a negotiable instrument under § 3-420, a plaintiff is not entitled to the
benefit of the discovery rule in the absence of fraudulent concealment. And Joe has failed to plead or create a genuine issue
of fact regarding fraudulent concealment. We conclude that the
U.C.C.’s 3-year statute of limitations bars Joe’s claims.
Court’s Failure to Strike Motion for
Summary Judgment for Failing to
Comply With Discovery Orders
Joe argues that the court erred in not striking ANB’s motion
for summary judgment for ANB’s alleged failure to comply
with discovery orders. Joe argues ANB withheld documents
that Joe had requested and that would have helped Joe prosecute his case. ANB responds that it fully complied with the
discovery orders and that, even if it did not, the court did
not abuse its discretion by allowing ANB to move for summary judgment.
[16] We review the imposition of a discovery sanction for
abuse of discretion.32 A judicial abuse of discretion exists when
a judge, acting within effective limits of authorized judicial
power, elects to act or refrain from action, but the selected
option results in a decision which is untenable and unfairly
deprives the litigant of a substantial right or a just result.33
Joe claims that ANB failed to comply with the court’s discovery order. The only order in the record about discovery did
not order ANB to comply, but, rather, made a finding that “discovery was answered.” The order shows that the court did not
sanction ANB at that time for not answering at all, but, rather,
for answering too late, which implies that ANB did answer.
Later, ANB even went further and supplemented its responses
after it had moved for summary judgment.
31
32
33
See Gering - Ft. Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d
897 (2000).
Booth, supra note 7.
Id.
Nebraska Advance Sheets
454
281 nebraska reports
But Joe continued to insist that ANB was not complying
with discovery. He moved to strike ANB’s motion for summary
judgment, because he believed that ANB was not complying.
He attached an affidavit to his motion claiming as much.
The district court’s decision acknowledged that Joe had
moved to strike ANB’s summary judgment motion and implicitly overruled it. Because of the court’s earlier discovery order
finding that “discovery was answered,” albeit untimely, and
ANB’s subsequent supplementary responses, we conclude that
the court did not abuse its discretion in failing to strike the
motion for summary judgment.
Motion to Alter or Amend Judgment
[17] Finally, Joe claims that the trial court erred in denying his motion for new trial or, in the alternative, to alter or
amend the judgment. We review such a denial for an abuse
of discretion.34
Joe’s argument is essentially that the lower court erred
in determining that the U.C.C. displaced his common-law
claims and that the statute of limitations barred his claims.
We have, however, already determined that the lower court
correctly concluded that the statute of limitations barred Joe’s
claims. Accordingly, it was not an abuse of discretion to deny
Joe’s motion.
CONCLUSION
We conclude that the U.C.C. displaces Joe’s claims for
c
ommon-law conversion and negligence. The 3-year U.C.C.
statute of limitations applies. Because of the underlying policies of the U.C.C., we decline to apply the discovery rule to
toll the statute of limitations. Joe’s claims were thus untimely.
We affirm the district court’s grant of summary judgment.
Affirmed.
Wright, J., not participating.
34
See, Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007); Woodhouse
Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
