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Rudd v. Debora

Court of Appeals of Nebraska

June 18, 2013

Richard Rudd, appellant,
Hank Debora, appellee.

1. Summary Judgment. 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.

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 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.

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.

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.

[20 Neb.App. 851] Irwin, Moore, and Pirtle, Judges.

Pirtle, Judge.


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.


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 summons 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. [20 Neb.App. 852] Since that time, the son has had no involvement with Hand Picked Auto.

The father testified in his deposition, taken by Rudd's attorney, 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, ...

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