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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

Midland Properties, L.L.C., and Jerry Morgan, 

appellants, v. Wells Fargo, N.A., 

et al., appellees.

___ N.W.2d ___

Filed April 14, 2017. No. S-16-260.

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 

those 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 was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Trial: Evidence: Appeal and Error. An appellate court reviews the 

trial court’s conclusions with regard to evidentiary foundation for an 

abuse of discretion.

4. Pleadings: Appeal and Error. Permission to amend a pleading is 

addressed to the discretion of the trial court, and an appellate court will 

not disturb the trial court’s decision absent an abuse of discretion.

5. Summary Judgment: Proof. A 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 if the evidence 

presented for summary judgment remains uncontroverted, the moving 

party is entitled to judgment as a matter of law.

6. ____: ____. After the moving party has shown facts entitling it to a 

judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party.

7. Evidence: Witnesses. Communications by telephone are admissible in 

evidence where otherwise relevant to the fact or facts in issue, provided 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/23/2017 01:13 AM CDT
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

the identity of the person with whom the witness spoke or the person 

whom he or she heard speak is satisfactorily established.

8. Torts: Intent: Proof. To succeed on a claim for tortious interference 

with a business relationship or expectancy, a plaintiff must prove (1) the 

existence of a valid business relationship or expectancy, (2) knowledge 

by the interferer of the relationship or expectancy, (3) an unjustified 

intentional act of interference on the part of the interferer, (4) proof that 

the interference caused the harm sustained, and (5) damage to the party 

whose relationship or expectancy was disrupted.

9. Summary Judgment: Affidavits. Affidavits and other sworn statements 

offered in support or opposition of summary judgment 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.

Appeal from the District Court for Douglas County: Timothy

P. Burns, Judge. Affirmed.

Douglas W. Ruge for appellants.

Jennifer L. Andrews and Alison M. Gutierrez, of Kutak 

Rock, L.L.P., for appellee Wells Fargo, N.A.

Thomas J. Young, and Lilly Richardson-Severn, of 

H & S Partnership, L.L.P., for appellees HBI, L.L.C., and 

H & S Partnership, LLP.

Heavican, C.J., Wright, Cassel, Stacy, Kelch, and

Funke, JJ.

Cassel, J.

I. INTRODUCTION

This appeal arises from an action for wrongful foreclosure 

of a deed of trust, quiet title, tortious interference with business 

relationships, and declaratory relief. The district court granted 

summary judgment of dismissal and denied leave to file an 

amended complaint. Because there was no genuine issue of 

material fact and no abuse of discretion in denying leave to 

amend, we affirm the judgment.
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

II. BACKGROUND

1. Foreclosure

Jerry Morgan purchased property in Douglas County, 

Nebraska, by obtaining a loan secured by a deed of trust. He 

conveyed the property to his company, Midland Properties, 

L.L.C., and managed the property as a rental.

Wells Fargo, N.A., was eventually assigned the lender’s 

interest in the promissory note and deed of trust. Several years 

later, it initiated a nonjudicial foreclosure on the deed of trust, 

citing as cause Morgan’s failure to make payments as they 

became due. HBI, L.L.C., purchased the property at a trustee’s 

sale and later conveyed the property to H & S Partnership, 

LLP (H&S).

2. Proceedings on

Amended Complaint

Morgan and Midland Properties (collectively appellants) 

filed an amended complaint against Wells Fargo, HBI, and 

H&S. Appellants generally alleged that they were not in default 

on the loan, that Wells Fargo wrongfully foreclosed, and that 

there were irregularities in the assignment of the deed of trust 

and promissory note, in the substitution of trustees, and in the 

trustee’s sale. The complaint also alleged that Wells Fargo, or 

its agents, improperly interacted with appellants’ tenants before 

the trustee’s sale, thereby committing tortious interference 

with business relationships and causing $50,000 in damages. 

Appellants sought declaratory relief, monetary damages, and 

equitable relief setting aside the trustee’s sale and quieting title 

to the property.

Wells Fargo filed a motion for summary judgment. 

Appellants later moved for leave to file a “Second Amended 

Complaint” that added another defendant. After a hearing, the 

court found that Wells Fargo established a prima facie case for 

summary judgment. The court disregarded certain statements 

offered in Morgan’s affidavit and deposition as hearsay and 

otherwise found that appellants offered only general allegations 
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296 Nebraska Reports

MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

unsupported by the evidence. Because the court determined 

that appellants’ evidence failed to rebut Wells Fargo’s evidence, it sustained the motion for summary judgment and 

dismissed the amended complaint. After finding that appellants 

failed to show why another defendant should be added so late 

in the proceeding, the court also denied appellants’ motion to 

file a second amended complaint.

A timely appeal followed, which we moved to our docket.1

III. ASSIGNMENTS OF ERROR

Appellants made four assignments of error which, consolidated and restated, assert that the district court erred in (1) 

determining that there was no genuine issue of material fact, 

(2) excluding Morgan’s testimony of (a) conversations with 

Wells Fargo representatives for lack of proper foundation and 

(b) statements from appellants’ tenants establishing wrongful 

interference, and (3) not allowing appellants to file a second amended complaint which added another defendant. Our 

restatement renders moot Wells Fargo’s suggestion that appellants’ first three assignments were too generalized and vague.

IV. STANDARD OF REVIEW

[1,2] 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.2 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.3

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

2 Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d 910 

(2016), modified on denial of rehearing 295 Neb. 40, 886 N.W.2d 277.

3 Id.
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Nebraska Supreme Court Advance Sheets

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MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

[3] An appellate court reviews the trial court’s conclusions with regard to evidentiary foundation for an abuse of 

discretion.4

[4] Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb 

the trial court’s decision absent an abuse of discretion.5

V. ANALYSIS

1. Summary Judgment

[5,6] A 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 if the evidence 

presented for summary judgment remains uncontroverted, the 

moving party is entitled to judgment as a matter of law.6 After 

the moving party has shown facts entitling it to a judgment as 

a matter of law, the opposing party has the burden to present 

evidence showing an issue of material fact which prevents 

judgment as a matter of law for the moving party.7

All of appellants’ arguments opposing the entry of summary judgment are premised on excluded evidence which they 

contend established genuine issues of material fact. According 

to appellants, the district court improperly excluded and disregarded parts of Morgan’s deposition and affidavit testimony. 

Specifically, they allege that Morgan’s testimony concerning 

conversations with Wells Fargo employees were admissible 

as nonhearsay and refuted Wells Fargo’s right to foreclosure. 

They also allege that reports from his tenants were admissible 

as “rebuttal” evidence and supported their claim for tortious 

interference with business relationships.8

4 See State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016).

5 Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).

6 SID No. 196 of Douglas Cty. v. City of Valley, 290 Neb. 1, 858 N.W.2d 553 

(2015).

7 Id.

8 Brief for appellants at 17.
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

(a) Right to Foreclosure

Appellants claimed that Wells Fargo had no right to foreclosure, because Morgan was not in default and had insufficient 

notice. They rely upon Morgan’s deposition testimony that 

unknown representatives of Wells Fargo told him not to make 

the payments and they would not foreclose. Wells Fargo initially offered evidence to the contrary.

Wells Fargo established that Morgan failed to make payments as they were due and that it notified him of the default 

and its consequences. It acknowledged that Morgan was 

approved for a trial mortgage modification period but that his 

application was ultimately denied due to title issues. It also 

produced evidence of compliance with all notice and recording 

requirements for the trustee’s sale. Documents that appellants 

produced, which Wells Fargo had sent to Morgan’s address, 

directly contradicted the verbal instructions Morgan claimed to 

have received. This was sufficient to establish that Wells Fargo 

was entitled to judgment as a matter of law. Thus, the burden 

shifted to appellants to present evidence showing an issue of 

material fact.

Appellants offered Morgan’s deposition. He testified to 

telephone conversations during which he was “instructed by 

Wells Fargo personnel not to make any . . . payments until 

they gave [him] the test payments to pay” for the trial mortgage modification period. He also claimed that he was never 

told that his loan modification request was denied and that 

“Wells Fargo personnel told [him] they wouldn’t foreclose” 

on the property. But appellants failed to establish the required 

foundation.

[7] Morgan was unable to identify any of the purported 

representatives or specify any date of a conversation. It is 

well established that communications by telephone are admissible in evidence where otherwise relevant to the fact or facts 

in issue, provided the identity of the person with whom the 

witness spoke or the person whom he or she heard speak is 
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

satisfactorily established.9 Morgan could not do so. Based upon 

this lack of foundation, the district court excluded Morgan’s 

deposition testimony. We find no abuse of discretion in excluding this evidence.

Because the district court did not abuse its discretion in disallowing Morgan’s testimony, appellants failed to establish the 

existence of a genuine issue of material fact. Therefore, Wells 

Fargo was entitled to summary judgment on the claims for 

declaratory relief, quiet title, and wrongful foreclosure.

(b) Tortious Interference

[8] To succeed on a claim for tortious interference with a 

business relationship or expectancy, a plaintiff must prove (1) 

the existence of a valid business relationship or expectancy, 

(2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the 

part of the interferer, (4) proof that the interference caused the 

harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted.10

Wells Fargo established that its records did not indicate 

any representatives would have had contact with appellants’ 

tenants prior to the trustee’s sale. It produced evidence that 

it hired an independent contractor who performed multiple 

“occupancy checks” of the property subject to foreclosure 

and made direct contact once with an individual identified as 

“mortgagor” (Morgan). This does not suggest interaction with 

the tenants. Wells Fargo also offered the affidavit of one of 

appellants’ tenants, who denied ever being “contacted by Wells 

Fargo, or any agent or employee of Wells Fargo, by phone or 

in person.” Thus, the burden shifted to appellants to establish a genuine issue of material fact regarding their claim for 

tortious interference.

9 Linch v. Carlson, 156 Neb. 308, 56 N.W.2d 101 (1952).

10 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015).
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MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

Appellants offered Morgan’s testimony of reports from all 

four of his tenants, including the affiant, alleging that they 

had been harassed by different Wells Fargo representatives. In 

their brief, appellants implicitly concede that this testimony is 

hearsay. But they argue that such statements are admissible as 

“rebuttal,” since Wells Fargo offered the affidavit of one of the 

four tenants. This argument is contrary to law.

[9] Affidavits and other sworn statements offered in support or opposition of summary judgment 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.11

Morgan admitted during his deposition that he lacked personal 

knowledge of any communications made by Wells Fargo or its 

representatives to appellants’ tenants. Appellants failed to produce an affidavit or deposition from any of the tenants, based 

on personal knowledge, to establish a genuine issue of fact. 

Morgan’s testimony was entirely dependent upon inadmissible 

hearsay. Therefore, the district court was correct in excluding 

such statements from the evidence.

Because there was no genuine issue of material fact regarding the absence of any act of interference on the part of Wells 

Fargo or its independent contractor, the district court correctly 

granted summary judgment dismissing appellants’ claim for 

tortious interference with a business relationship.

2. Motion for Leave to Amend

Lastly, appellants argue that the district court abused its 

discretion in denying their motion for leave to file a successive 

amended complaint. We disagree.

Appellants attempted to add Wells Fargo’s independent 

contractor as a defendant to its claim for tortious interference nearly 9 months after the deadline to amend pleadings. 

11 See Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 

(2012).
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MIDLAND PROPERTIES v. WELLS FARGO

Cite as 296 Neb. 407

They claimed not to know of the independent contractor until 

2 months before it filed its motion. However, the record 

shows that Wells Fargo identified the independent contractor 

at a deposition at least 7 months before they filed their motion 

to amend.

Appellants have failed to explain why another defendant 

should be added so late in the proceeding. We also note that 

such a claim would be futile for the same reasons that it was 

unsuccessful against Wells Fargo. Therefore, the district court 

did not abuse its discretion in denying their motion.

VI. CONCLUSION

The district court properly excluded evidence for lack of 

foundation and hearsay. As a result, the admitted evidence did 

not support appellants’ claims or establish a genuine issue of 

material fact. Because we also conclude that the district court 

did not abuse its discretion in denying appellants’ motion for 

leave to amend their complaint, we affirm its judgment.

Affirmed.

Miller-Lerman, J., not participating.