Ponec v. Guy Strevey & Assocs., A-15-775

Background

James and Ann Ponec invested in mutual funds and, between Aug. 1996 and Nov. 2003, in two private oil-and-gas companies on recommendations from financial adviser Guy Strevey; Strevey was affiliated with broker-dealer Hornor, Townsend & Kent, Inc. (HTK) until Feb. 2008.
The Ponecs alleged Strevey represented the investments would generate large, ongoing dividends and large stock gains; by 2004 they had notes and correspondence reflecting concern that dividends were insufficient and projects had underperformed.
The Ponecs sued (complaint filed June 8, 2012; amended) for negligence, breach of fiduciary duty, negligent supervision, respondeat superior, fraudulent misrepresentation, and fraudulent concealment, naming Strevey and later HTK.
Strevey and HTK moved for summary judgment, arguing the claims were barred by Nebraska’s statute of limitations; the district court granted both motions and denied the Ponecs’ motion for partial summary judgment.
The court applied the 4-year statute of limitations in Neb. Rev. Stat. § 25-207 to the common-law claims, rejected application/extension of the "continuing treatment/representation" doctrine to brokers, and found inquiry/constructive notice (by March 2004) defeated discovery-rule tolling and fraudulent concealment arguments.
This appeal affirms: the appellate court held the limitations period ran and no tolling exception (continuing representation or discovery/fraudulent concealment) saved the claims; respondeat superior also failed as derivative of timed-out claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicable statute of limitations	4-year SoL should be tolled or different rule applies given fiduciary/broker relationship	§ 25-207 (4-year) governs common-law tort/fraud claims; Securities Act is not exclusive	Applied § 25-207; even if 3-year Securities Act applied, claims time-barred
Continuing-treatment/representation tolling	Extend medical-style continuing-treatment doctrine to brokers/financial advisers and toll SoL	Doctrine limited to professional malpractice under § 25-222; brokers not "profession" for that tolling	Declined to extend doctrine; relationship not professional as matter of law and tolling unavailable
Discovery/inquiry notice and fraudulent concealment	Alleged defendants concealed portfolio problems; fiduciary status delayed discovery and prevented inquiry	Ponecs had inquiry notice by March 2004 (letters/notes) and thus should have investigated; no concealment that prevented discovery	Discovery rule inapplicable; inquiry notice charged plaintiffs; fraudulent concealment/equitable estoppel failed
Respondeat superior / scope of employment	HTK should be vicariously liable for Strevey's misconduct	Even if vicarious liability applied, claim derivative of Strevey’s timed-out claim; actions may be outside scope	Court need not decide employment scope because respondeat superior derivative claim barred by Strevey's untimely claim

Key Cases Cited

Brodine v. Blue Cross Blue Shield of Nebraska, 272 Neb. 713 (applicable statutory‑limitations principles)
Strode v. City of Ashland, 295 Neb. 44 (accrual timing and standard of review for SoL accrual)
Carruth v. State, 271 Neb. 433 (continuing‑treatment doctrine in medical‑malpractice context)
Guinn v. Murray, 286 Neb. 584 (accrual in professional negligence and limits of continuous‑representation rule)
Parks v. Merrill, Lynch, Pierce, Fenner, 268 Neb. 499 (broker/dealer employee not a "professional" under § 25‑222)
Knoell v. Huff, 224 Neb. 90 (Securities Act not necessarily exclusive remedy for securities claims)
Kocsis v. Harrison, 249 Neb. 274 (respondeat superior limitations principles)
Reinke Mfg. Co. v. Hayes, 256 Neb. 442 (definition of discovery/inquiry notice for SoL)
Manker v. Manker, 263 Neb. 944 (fraudulent concealment/equitable estoppel as tolling doctrines)
Holloway v. State, 293 Neb. 12 (vicarious liability/respondeat superior principles)