Schuemann v. Timperley, 989 N.W.2d 921

Plaintiff Richard G. Schuemann underwent cataract surgeries performed by Dr. Brent D. Timperley (left eye Mar. 19, 2018; right eye Apr. 2, 2018; plaintiff also alleged a later left-eye procedure Aug. 23, 2018).
Schuemann filed suit on Apr. 2, 2020 alleging lack of informed consent and negligent performance of the later surgeries causing pain and reduced vision.
Timperley’s answer denied negligence and alleged the complaint failed to state a claim but did not plead the statute of limitations as an affirmative defense.
Timperley moved for summary judgment primarily on statute-of-limitations grounds, relying on evidence outside the complaint (including his affidavit asserting the March 19 date and that he met the standard of care); he also referenced a catchall request for "such other relief as the Court deems just and equitable."
The district court granted summary judgment based on the statute of limitations; the Nebraska Supreme Court reversed, holding Timperley waived an evidentiary statute-of-limitations defense by not pleading it and that the complaint was not facially time-barred; the court declined to affirm on Timperley’s alternative (no-expert) ground because it was not adequately presented below.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether statute-of-limitations defense was waived for failure to plead it	Schuemann: Timperley waived the defense by omitting it from his answer	Timperley: His denial that the complaint fails to state a claim preserved the SOL defense	Held: Defense waived—pleading a § 6-1112(b)(6)-type denial does not preserve an evidentiary SOL defense when movant relies on extrinsic evidence
Whether the complaint was facially time-barred	Schuemann: Complaint alleges Apr. 2, 2018 as operative malpractice date; suit filed Apr. 2, 2020, so timely	Timperley: Actual malpractice occurred Mar. 19, 2018 (left eye), making claims untimely	Held: Complaint did not show on its face that claims were time-barred; only Apr. 2, 2018 was pled as operative date
Proper computation of the 2-year limitations period	Schuemann: Under § 25-2221 exclude day of act; Apr. 2, 2020 is last day to file	Timperley: Filing on Apr. 2, 2020 was too late	Held: Under § 25-2221 the day of the act is excluded and Apr. 2, 2020 was the last day, so filing was timely if Apr. 2 is the operative date
Whether alternative summary-judgment ground (no contrary expert) was fairly presented	Schuemann: No notice; not required to rebut issues not raised by motion	Timperley: Motion and affidavit put Schuemann on notice; absence of contrary expert supports SJ	Held: Alternative ground was not adequately presented in the motion or below; appellate court will not affirm on that basis

Mai v. German, 313 Neb. 187 (de novo review of summary judgment)
Bonness v. Armitage, 305 Neb. 747 (statute of limitations may be assessed on a (b)(6)-type challenge only when complaint facially shows time bar)
Strode v. City of Ashland, 295 Neb. 44 (defendant must plead SOL as affirmative defense if complaint does not show it is barred)
McGill v. Lion Place Condo. Assn., 291 Neb. 70 (SOL is an affirmative defense; waiver if not pleaded)
Fuelberth v. Heartland Heating & Air Conditioning, 307 Neb. 1002 (application of § 25-2221 for computing limitation periods)
Choice Homes v. Donner, 311 Neb. 835 (appellate court may affirm on any ground available to trial court)
Carrizales v. Creighton St. Joseph, 312 Neb. 296 (failure to rebut expert testimony on standard of care typically supports summary judgment for medical provider)
In re Freeholders Petition, 210 Neb. 583 (cannot grant summary judgment on issues not presented to nonmoving party)