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www.nebraska.gov/apps-courts-epub/
04/14/2017 09:09 AM CDT
- 407 -
Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
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 pre
sent evidence showing an issue of material fact which prevents judg-
ment 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
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
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.
H eavican, C.J., Wright, Cassel, Stacy, K elch, 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 A dvance Sheets
296 Nebraska R eports
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
A mended 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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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
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 evi-
dence, 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, con-
solidated 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 sec-
ond amended complaint which added another defendant. Our
restatement renders moot Wells Fargo’s suggestion that appel-
lants’ 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 appel-
late 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).
3
Id.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MIDLAND PROPERTIES v. WELLS FARGO
Cite as 296 Neb. 407
[3] An appellate court reviews the trial court’s conclu-
sions with regard to evidentiary foundation for an abuse of
discretion.4
[4] Permission to amend a pleading is addressed to the dis-
cretion 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 sum-
mary judgment are premised on excluded evidence which they
contend established genuine issues of material fact. According
to appellants, the district court improperly excluded and disre-
garded 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 A dvance Sheets
296 Nebraska R eports
MIDLAND PROPERTIES v. WELLS FARGO
Cite as 296 Neb. 407
(a) Right to Foreclosure
Appellants claimed that Wells Fargo had no right to foreclo-
sure, 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 ini-
tially offered evidence to the contrary.
Wells Fargo established that Morgan failed to make pay-
ments 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 mort-
gage 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 admis-
sible 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 A dvance Sheets
296 Nebraska R eports
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 exclud-
ing this evidence.
Because the district court did not abuse its discretion in dis-
allowing 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 expect
ancy, (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 relation-
ship 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 estab-
lish 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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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
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 sup-
port 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 pro-
duce 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 regard-
ing 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 A mend
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 interfer-
ence 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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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
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.
A ffirmed.
Miller-Lerman, J., not participating.