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Midland Properties L.L.C. v. Wells Fargo N.A.

Supreme Court of Nebraska

April 14, 2017

Midland Properties, L.L.C., and Jerry Morgan. APPELLANTS,
v.
WELLS FARGO, N.A., ET AL., APPELLEES.

         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 [296 Neb. 408] 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.R, 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.

         [296 Neb. 409] 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 ...


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