NE Code § 25-1332 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-1332 - Motion for summary judgment; proceedings.

25-1332.  Motion for summary judgment; proceedings.(1) The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings and the evidence admitted at the hearing show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. The evidence that may be received on a motion for summary judgment includes depositions, answers to interrogatories, admissions, stipulations, and affidavits. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine dispute as to the amount of damages.(2) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:(a) Citing to particular parts of materials in the record, including depositions, answers to interrogatories, admissions, stipulations, affidavits, or other materials; or(b) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.(3) If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by subsection (2) of this section, the court may:(a) Give an opportunity to properly support or address the fact;(b) Consider the fact undisputed for purposes of the motion;(c) Grant summary judgment if the motion and supporting materials, including the facts considered undisputed, show that the movant is entitled to summary judgment; or(d) Issue any other appropriate order.Source   Laws 1951, c. 65, § 3, p. 199;  Laws 2001, LB 489, § 3;  Laws 2017, LB204, § 3.  Annotations  1. Scope 2. Motion granted 3. Motion denied 4. Procedure 5. Court review 1. Scope There is a difference between an issue of fact and a genuine issue as to any material fact within the meaning of this section. Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009). The plain, direct, and unambiguous meaning of the language of this section is that parties adverse to a motion for summary judgment may serve opposing affidavits prior to the day of the summary judgment hearing. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). The "clear beyond all doubt" standard for a summary judgment is inconsistent with the standard expressed in this section. Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992). To entitle defendant to summary judgment on the issue of contributory negligence, defendant has the burden of proving, under the facts viewed most favorably to the plaintiff, that (1) plaintiff's contributory negligence was more than slight as a matter of law or (2) defendant's negligence was not gross in comparison to plaintiff's negligence as a matter of law. John v. OO (Infinity) S Development Co., 234 Neb. 190, 450 N.W.2d 199 (1990). This section has been construed to mean that if the moving party submits an affidavit as to a material fact, and that fact is not contradicted by the adverse party, the court will determine that there is no issue as to that fact. Raskey v. Michelin Tire Corp., 223 Neb. 520, 391 N.W.2d 123 (1986). A summary judgment shall be rendered if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, that the ultimate inferences to be drawn from those facts are clear, and that the moving party is entitled to a judgment as a matter of law. Yankton Prod. Credit Assn. v. Larsen, 219 Neb. 610, 365 N.W.2d 430 (1985). Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Yankton Prod. Credit Assn. v. Larsen, 219 Neb. 610, 365 N.W.2d 430 (1985). The absence of a genuine issue as to a material fact and entitlement to judgment as a matter of law are prerequisites to a summary judgment. Stolte v. Blackstone, 213 Neb. 113, 328 N.W.2d 462 (1982). Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Bank of Valley v. Shunk, 208 Neb. 200, 302 N.W.2d 711 (1981). For entry of a summary judgment, the record must show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Reed v. Nice-Pak Products, Inc., 193 Neb. 505, 227 N.W.2d 854 (1975); Larson v. Board of Regents, 189 Neb. 688, 204 N.W.2d 568 (1973); Storz Brewing Co. v. Kuester, 178 Neb. 135, 132 N.W.2d 341 (1965). Summary judgment is an extreme remedy and should be granted only when issue is clear beyond all doubt. It cannot be granted on cross-motion where only reason for same is that other party had also moved for summary judgment to which he was not entitled. Hiram Scott College v. Insurance Co. of North America, 187 Neb. 290, 188 N.W.2d 688 (1971). Summary judgment is not a substitute for other remedies. Healy v. Metropolitan Utilities Dist., 158 Neb. 151, 62 N.W.2d 543 (1954). Function of court on motion is to determine whether genuine issue of fact exists. Palmer v. Capitol Life Ins. Co., 157 Neb. 760, 61 N.W.2d 396 (1953). Summary judgment is only proper where no genuine issue of fact remains for trial. Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244 (1952). On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists. Where it is not clear from the record whether the trial court relied upon improper evidence, the better course is to reverse a grant of summary judgment. Summary judgment is an extreme remedy because it may dispose of a crucial question in litigation, or the litigation itself, and may thereby deny a trial to the party against whom the motion for summary judgment is directed. Kulhanek v. Union Pacific RR. Co., 8 Neb. App. 564, 598 N.W.2d 67 (1999). 2. Motion granted Where plaintiff was experienced businessman and attorney, who voluntarily and knowingly signed strict pledge agreement to bank, and bank presented enough evidence to demonstrate that agreement language should not be modified, summary judgment in favor of bank was proper. McCormack v. First Westroads Bank, 238 Neb. 881, 473 N.W.2d 102 (1991). Summary judgment is proper where, as here, there is no genuine issue as to any material fact in the case. Marshall v. Radiology Assoc., 225 Neb. 75, 402 N.W.2d 855 (1987). The court should sustain a motion for summary judgment if, upon hearing, the pleadings, depositions, admission on file, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Borg-Warner v. Watton, 215 Neb. 318, 338 N.W.2d 612 (1983); Reifschneider v. Nebraska Methodist Hospital, 212 Neb. 91, 321 N.W.2d 445 (1982); First Mid America Inc. v. MCI Communications Corp., 212 Neb. 57, 321 N.W.2d 424 (1982); Manzer v. Pentico, 209 Neb. 364, 307 N.W.2d 812 (1981). Summary judgment is proper where adjudication of any right or fact in issue is precluded by res judicata, and an order granting a motion for summary judgment by the municipal court is final and appealable and is not converted to an interlocutory order when reversed and remanded by the district court so as to prohibit an appeal to this court. DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772 (1982). Where bond was in effect at time actual demand was made against the principal, but not on earlier date when right to make demand accrued, summary judgment was properly granted to the surety. Stock v. Meissner, 209 Neb. 636, 309 N.W.2d 86 (1981). Summary judgment was proper in granting the employee's commission where there was no dispute that the employment contract existed, that the employee performed under the contract when he obtained two real estate listings, and that a commission was paid to the employer when the two listings were sold. Oehlrich v. Gateway Realty of Columbus, Inc., 209 Neb. 417, 308 N.W.2d 327 (1981). Summary judgment for employer was proper when at time of employee's tort he was not acting in kind of work he was employed to perform, within the authorized time and space limits, and his actions were not actuated in any part by a purpose to serve the employer. Johnson v. Evers, 195 Neb. 426, 238 N.W.2d 474 (1976). The evidence as to whether plaintiff was a passenger or a guest was undisputed and the issue having been decided by the court as a matter of law, summary judgment was proper. Hale v. Taylor, 192 Neb. 298, 220 N.W.2d 378 (1974). Motion for summary judgment may be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Grantham v. General Tel. Co., 191 Neb. 21, 213 N.W.2d 439 (1973). Motion for summary judgment is proper if the pleadings and admissions show there is no genuine issue of fact. Anderson v. Carlson, 171 Neb. 741, 107 N.W.2d 535 (1961). Where controlling facts are not in substantial dispute and each party moves for summary judgment, entry of such judgment is proper. Fidelity & Deposit Co. v. Bodenstedt, 170 Neb. 799, 104 N.W.2d 292 (1960). Where undisputed showing disclosed that plaintiff's negligence was more than slight when compared with negligence of defendant, summary judgment for defendant was authorized. Miller v. Aitken, 160 Neb. 97, 69 N.W.2d 290 (1955). Motion for summary judgment is appropriate where no genuine issue of fact exists or court is without jurisdiction of subject matter. Mueller v. Shacklett, 156 Neb. 881, 58 N.W.2d 344 (1953). Summary judgment was proper on issue of liability alone in libel action. Rimmer v. Chadron Printing Co., 156 Neb. 533, 56 N.W.2d 806 (1953). Where issue of fact does not exist, summary judgment is proper. Mecham v. Colby, 156 Neb. 386, 56 N.W.2d 299 (1953). Summary judgment is proper when the pleadings and the evidence admitted at the hearing 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. Stackhouse v. Gaver, 19 Neb. App. 117, 801 N.W.2d 260 (2011). 3. Motion denied In this instance, the question of whether sufficient part performance has been established to render an alleged oral agreement enforceable and, if so, on what date this sufficient part performance was completed could not be answered as a matter of law, and therefor a genuine issue of material fact exists rendering the granting of a summary judgment improper. In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982). Whether there is a compelling governmental interest for a municipal personnel rule is a question of fact which must be established before a summary judgment may be granted. Voichahoske v. City of Grand Island, 194 Neb. 175, 231 N.W.2d 124 (1975). Where question of fraudulent intent is involved, motion for summary judgment should be denied. Nine v. Lurz, 191 Neb. 605, 216 N.W.2d 744 (1974). The burden is upon the party moving for the summary judgment to show that no issue of fact exists, and unless he can conclusively do so, the motion must be overruled. Green v. Village of Terrytown, 189 Neb. 615, 204 N.W.2d 152 (1973). Entry of summary judgment not proper where there were genuine issues of fact as to existence of warning signs, lighting arrangements, change in floor level, and plaintiff's familiarity with the premises. Snyder v. Fort Kearney Hotel Co., Inc., 182 Neb. 859, 157 N.W.2d 782 (1968). Where genuine issue of material fact exists, summary judgment should be denied. Fay Smith & Associates, Inc. v. Consumers P. P. Dist., 172 Neb. 681, 111 N.W.2d 451 (1961); Dennis v. Berens, 156 Neb. 41, 54 N.W.2d 259 (1952). Entry of summary judgment against guardian was not proper where there was a genuine issue of fact as to the correctness of account as a whole. Finn v. Whitten, 172 Neb. 282, 109 N.W.2d 376 (1961). Where there was a genuine issue of fact, motion for summary judgment in disbarment suit was properly overruled. State ex rel. Nebraska State Bar Assn. v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960). Where moving party is not entitled to a judgment as a matter of law, motion for summary judgment should be overruled. Rehn v. Bingaman, 157 Neb. 467, 59 N.W.2d 614 (1953). 4. Procedure A party adverse to a motion for summary judgment may not serve opposing affidavits on the day of the summary judgment hearing. Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004). This section expressly provides that a motion for summary judgment shall be served at least 10 days before the time fixed for the hearing. Malicky v. Heyen, 251 Neb. 891, 560 N.W.2d 773 (1997). An unsigned affidavit which was not offered until the day of the hearing on the summary judgment motion was properly excluded by the trial court. Medley v. Davis, 247 Neb. 611, 529 N.W.2d 58 (1995). When it is asserted in a summary judgment motion that an opposing party has failed to state a cause of action, as far as that issue is concerned, the motion may be treated as one in fact for a judgment on the pleadings. Ruwe v. Farmers Mut. United Ins. Co., 238 Neb. 67, 469 N.W.2d 129 (1991). The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists; that party must therefore produce enough evidence to demonstrate his entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion. Deutsche Credit Corp. v. Hi-Bo Farms, Inc., 224 Neb. 463, 398 N.W.2d 693 (1987). Evidence adduced by cross-examination of an affiant in an earlier summary judgment proceeding cannot be considered an affidavit within the meaning of this section. First Nat. Bank of Ord v. Greene Bldg. & Supply, Inc., 220 Neb. 205, 369 N.W.2d 59 (1985). District court erred in hearing motion for summary judgment where notice provisions of the statute were not complied with. Curley v. Curley, 214 Neb. 780, 336 N.W.2d 103 (1983). Without a prima facie showing by the movant for a summary judgment, i.e., the production of enough evidence to demonstrate such party's entitlement to a judgment if evidence were uncontroverted at trial, which prima facie showing shifts the burden to the opposing party, the opposing party need not present expert witnesses to prove the existence of a doctor's negligence in a medical malpractice action to rebut the doctor's motion for summary judgment. Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982). Where one party moves for a partial summary judgment on certain issues only, the other party should not be expected at the hearing on the motion to present evidence on issues to which the motion does not apply. Schilke v. Walkenhorst, 210 Neb. 583, 316 N.W.2d 294 (1982). Dialogue and actions by counsel held to constitute a waiver of his objection to a motion for summary judgment not timely heard. Metropolitan Utilities Dist. v. Fidelity & Deposit Co., 200 Neb. 635, 264 N.W.2d 854 (1978). At hearing on plaintiff's motion for summary judgment, defendant must proceed on the merits immediately when continuance denied. Yunghans v. O'Toole, 199 Neb. 317, 258 N.W.2d 810 (1977). The right of a party to sue as representative of a class may be raised by a motion for summary judgment. Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976). Affidavits not submitted prior to day of hearing and not offered and received in evidence will not be considered on appeal. Center Bank v. Mid-Continent Meats, Inc., 194 Neb. 665, 234 N.W.2d 902 (1975). Where no continuance was requested when affidavits were filed late, and they dealt with facts plaintiff did not dispute, error, if any, was harmless. Hi-Point Land & Cattle Co., Inc. v. Schlaphoff, 193 Neb. 276, 226 N.W.2d 926 (1975). Depositions offered in evidence on motion for summary judgment must be included in bill of exceptions to be reviewed by Supreme Court on appeal. Brown v. Shamberg, 190 Neb. 171, 206 N.W.2d 846 (1973). Denial of motion for summary judgment is not an appealable order. Otteman v. Interstate Fire & Cas. Co., Inc., 171 Neb. 148, 105 N.W.2d 583 (1960). In absence of bill of exceptions, affidavits offered in evidence in support of motion for summary judgment cannot be considered. Brierly v. Federated Finance Co., 168 Neb. 725, 97 N.W.2d 253 (1959). Summary judgment was properly denied even though reply to request for admissions was not made under oath. Greer v. Chelewski, 162 Neb. 450, 76 N.W.2d 438 (1956). A summary judgment cannot be awarded for an amount in excess of the damages pled and prayed for in the operative petition. One Pacific Place, Ltd. v. H.T.I. Corp., 6 Neb. App. 62, 569 N.W.2d 251 (1997). 5. Court review In appellate review of an order granting a summary judgment, the Supreme Court views the evidence in a light most favorable to the party against whom the judgment is granted. Tuttle & Assoc. v. Gendler, 237 Neb. 825, 467 N.W.2d 881 (1991). A trial court may use appropriate judicial notice in resolving a motion for summary judgment. Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). In appellate review of a summary judgment, the court views the evidence in a 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. John v. OO (Infinity) S Development Co., 234 Neb. 190, 450 N.W.2d 199 (1990). On a motion for summary judgment, the court is required to view the evidence and all reasonable inferences therefrom in the light most favorable to the party against whom it is directed and any reasonable doubt touching the existence of a genuine issue of material fact must be resolved against the moving party. Mayer v. Howard, 220 Neb. 328, 370 N.W.2d 93 (1985). In reviewing a summary judgment the court must take the view of the evidence most favorable to the party against whom the motion is directed and give that party the benefit of all favorable inferences which may be drawn from the evidence. Yankton Prod. Credit Assn. v. Larsen, 219 Neb. 610, 365 N.W.2d 430 (1985). Issue to be tried on motion for summary judgment is whether there is any genuine issue of material fact, not how issue should be decided; court should view evidence in light most favorable to party against whom it is directed. Piper v. Hill, 185 Neb. 568, 177 N.W.2d 509 (1970). District court possesses authority to render summary judgment, interlocutory in character, on issue of liability alone. Hart v. Ronspies, 181 Neb. 38, 146 N.W.2d 795 (1966). In the absence of a bill of exceptions, it is presumed that ruling of district court on motion for summary judgment was correct. Lange v. Kansas Hide & Wool Co., 168 Neb. 601, 97 N.W.2d 246 (1959); Peterson v. George, 168 Neb. 571, 96 N.W.2d 627 (1959).