JOHN DECAMP, APPELLANT, V. JAMES E.S. LEWIS, D.D.S., APPELLEE.
No. 87-379
Supreme Court of Nebraska
February 17, 1989
435 N.W.2d 883
As to [the] loan, the relation between the bank and the plaintiff was solely that of creditor and debtor. The information the bank imparted about the state of plaintiff‘s loan was not information it received in its capacity as agent for a depositor; it was information it obtained as a party to the loan agreement. It was not information that the borrower would normally expect would be kept confidential. One who defaults on his debts owed to a merchant cannot expect that his default will be kept a secret. . . . I see no basis, therefore, for implying an agreement of confidentiality to the relations of a bank with its borrowers.
Graney, supra, 400 N.Y.S.2d at 720.
Schoneweis’ allegation that the offending statements were made in an effort to enhance First National‘s position as her creditor compels the conclusion that the statements related solely to that debtor-creditor relationship. We are not persuaded that under such circumstances First National owed Schoneweis any duty of confidentiality.
AFFIRMED.
Filed February 17, 1989. No. 87-379.
BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and CARLSON, D.J.
SHANAHAN, J.
In his petition filed on June 28, 1985, John DeCamp alleged that James E.S. Lewis, a doctor of dental surgery, had negligently treated DeCamp. On July 29, Lewis answered and generally denied any negligence. From a summary judgment for Lewis and dismissal of the lawsuit, DeCamp appeals. We affirm.
In March of 1983, Lewis commenced treatment of DeCamp‘s condition, namely, a pain in the jaw resulting from DeCamp‘s auto accident 18 months earlier. Lewis’ clinical examination disclosed that DeCamp had sustained a “Class II dental occlusion or retrognathia or posteriorly displaced lower jaw with associated posterior displacement of the lower teeth in relationship to the upper teeth.” X rays at Lewis’ office showed “an abnormally increased range of movement of the lower jaw to the point of dislocation and also indicated that the ligaments surrounding the joint were unduly stretched.” In Lewis’ opinion, the best form of treatment at that time was “self imposed restriction of jaw movement,” with surgery as the alternative.
Later, DeCamp contacted Lewis’ office to schedule an arthrogram to confirm Lewis’ initial diagnosis. After receipt of Lewis’ full explanation regarding the surgical procedure applicable to his condition, DeCamp was admitted to Lincoln General Hospital on June 29, 1983, where the next day Lewis performed surgery on DeCamp. According to DeCamp‘s petition, after the surgery he suffered “temporary and permanent paralysis of the facial muscles, severe headaches, mental anguish, inability to eat properly and inability to talk.” DeCamp‘s postoperative condition allegedly required a second surgical procedure to “correct” the surgery by Lewis. DeCamp alleged that Lewis was negligent in improper surgical techniques to explore DeCamp‘s temporomandibular joint, inordinate exposure of DeCamp‘s nerves and soft tissue during
On October 15, 1986, more than 15 months after DeCamp had filed the suit, Lewis filed a motion for summary judgment, contending that “no competent evidence exists to affirm the Plaintiff‘s claim against the Defendant, and further, the evidence indicates that there is no genuine issue as to any material fact in regard to Plaintiff‘s claim, and that Defendant is entitled to judgment . . . as a matter of law.” To support his motion, Lewis submitted his own multipage affidavit, extensively detailing his treatment of DeCamp and concluding that Lewis “exercised the care, skill and diligence that dentists in good standing in Lincoln . . . would ordinarily exercise for the benefit of their patients under similar circumstances. . . .” Lewis also offered DeCamp‘s answers to interrogatories indicating that, at January 28, 1986, approximately 10 months before the summary judgment motion, DeCamp had not yet “employed an expert to act on his behalf.”
At the November 19, 1986, hearing on Lewis’ motion for summary judgment, DeCamp‘s counsel acknowledged “we are not in a position to respond to the merits of the motion for summary judgment” and relied on
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
DeCamp‘s counsel then offered his own affidavit, signed on November 18, 1986, which stated that DeCamp‘s legislative duties as a state senator and his campaign for reelection to the Nebraska Unicameral had “hampered” efforts to locate and retain medical experts who would offer an opinion that Lewis’ treatment of DeCamp was negligent. The attorney‘s affidavit further stated that DeCamp‘s counsel had learned from unidentified sources without specified expertise that “the
The district court received into evidence the affidavit by DeCamp‘s lawyer and also received Lewis’ answers to DeCamp‘s interrogatories, which ostensibly contain nothing indicating Lewis’ negligence in his treatment of DeCamp. The court took the summary judgment motion under advisement and, on December 1, 1986, sustained the motion and dismissed DeCamp‘s lawsuit. On December 11, 1986, DeCamp filed a motion for “new trial or reconsideration.” At the February 20, 1987, hearing on DeCamp‘s motion, DeCamp offered the affidavit of Herbert J. Bloom, a Michigan oral surgeon. Bloom‘s affidavit, dated February 18, 1987, stated that “the care rendered to Mr. John DeCamp by Dr. James E. S. Lewis failed to adhere to the accepted standards of practice for the specialty, and, as a consequence Mr. DeCamp sustained considerable, probably long-range, injury.” The court sustained Lewis’ objection to Bloom‘s affidavit and overruled DeCamp‘s motion for a new trial.
DeCamp claims that the district court erred in (1) failing to grant a continuance or additional time authorized by
REQUEST FOR ADDITIONAL TIME
DeCamp argues that the district court should have granted additional time so that DeCamp could secure affidavits of expert witnesses, and relies on
The purpose of
§ 25-1335 is to provide an additional safeguard against an improvident or premature grant of summary judgment. A§ 25-1335 affidavit need notcontain evidence going to the merits of the case; rather, a § 25-1335 affidavit must contain a reasonable excuse or good cause, explaining why a party is presently unable to offer evidence essential to justify opposition to the motion for summary judgment. Section25-1335 should be applied with the spirit of liberality.....
A continuance and other judicial action authorized by
§ 25-1335 are within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.
Wachtel v. Beer, supra at 401-02, 427 N.W.2d at 63.
Therefore, DeCamp‘s claim, based on
DeCamp contends that
In DeCamp‘s case, the motion for summary judgment was filed more than 3 years after Lewis’ operation on DeCamp and over 15 months after DeCamp had filed his lawsuit. In ruling on a request for a continuance or additional time authorized by
DeCamp‘s case is clearly distinguishable from Wachtel v. Beer, 229 Neb. 392, 427 N.W.2d 56 (1988), an action for medical malpractice, in which the defendants filed their summary judgment motions within a year after commencement of the action. Wachtel‘s lawyer, in an affidavit relative to
In contrast with Wachtel, DeCamp made no showing whatsoever that any expert witness had been retained, or, for that matter, even contacted, to assess the negligence alleged in DeCamp‘s claim. The first indication that DeCamp had actually contacted an expert was Bloom‘s affidavit of February 18, 1987, which was filed after expiration of the 18-month deadline for trial in a civil case. See Neb. Ct. R. on Case Progression Standards (rev. 1986). The only reason tendered for DeCamp‘s inability to present evidence in opposition to Lewis’ motion was DeCamp‘s busy schedule and unavailability for examination by any prospective expert witness. Under the circumstances, sufficient time had elapsed for DeCamp to enlist the aid of an expert witness for the litigation, including a
THE SUMMARY JUDGMENT
A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] In appellate review of a summary judgment, the court views the evidence in a 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.
Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 162-63, 425 N.W.2d 872, 875 (1988).
“The 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 the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted.” Wilson v. F & H Constr. Co., 229 Neb. 815, 819, 428 N.W.2d 914, 917 (1988).
“After the movant for a summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.” Id. We need not recount the contents of Lewis’ affidavit which sufficiently showed that Lewis was entitled to summary judgment in the absence of an adequate countershowing by DeCamp.
In response to Lewis’ showing in support of the summary judgment motion, DeCamp had to counter with a showing which either disputed the relevant facts alleged by Lewis, resulting in a genuine issue of material fact to be resolved, or which presented an appropriate opinion by an expert,
MOTION FOR NEW TRIAL
Finally, DeCamp claims that the district court erred in ruling on his motion for new trial, which alleged that the court‘s granting summary judgment to Lewis was “contrary to law as applied to the facts in this case.” See
A motion for new trial is addressed to the discretion of the trial court. In the absence of an abuse of discretion, a trial court‘s disposition of a motion for new trial will be upheld on appeal. See Fisher Corp. v. Consolidated Freightways, 230 Neb. 832, 434 N.W.2d 17 (1989).
DeCamp contends that the district court improperly excluded Bloom‘s affidavit, which was offered in support of DeCamp‘s motion for new trial. We note, however, that DeCamp‘s motion was based on the district court‘s allegedly erroneous application of law to the facts of DeCamp‘s case, not on the discovery of new evidence. Bloom‘s affidavit contained a substantive evaluation of Lewis’ treatment of DeCamp and was not relevant to the district court‘s interpretation and application of law. The trial court, therefore, correctly excluded Bloom‘s affidavit. Moreover, even if DeCamp had alleged discovery of new evidence as a ground for a new trial, Bloom‘s affidavit was insufficient to warrant the granting of a new trial because DeCamp‘s failure to show the reason for not discovering the information in Bloom‘s affidavit leaves only the conclusion that DeCamp failed to exercise due diligence in discovering the information before Lewis filed his summary judgment motion. See Smith v. Erftmier, 210 Neb. 486, 315 N.W.2d 445 (1982). The district court did not abuse its discretion in overruling DeCamp‘s motion for new trial.
AFFIRMED.
I respectfully dissent.
Although discretionary, I do not believe the decision by the trial court or the majority is in the “spirit of liberality” prescribed in Wachtel v. Beer, 229 Neb. 392, 427 N.W.2d 56 (1988). Except as a last resort, lawsuits should not be decided by the defendant‘s self-serving affidavit. The trial court‘s failure to first utilize one of the statutory options was an abuse of discretion.
I am mindful that Wachtel requires the party opposing the summary judgment to provide an affidavit containing “a reasonable excuse or good cause.” See Wachtel v. Beer, supra at 402, 427 N.W.2d at 63. I find that plaintiff‘s initial affidavit did just that, and it was unreasonable and unjust to precipitously terminate this case. In regard to plaintiff‘s submitted affidavit, the trial court reluctantly received same into evidence by stating that “I‘m not going to give any weight to it.”
There must be an end to litigation, but even an arguably dilatory party should have one chance to correct the error of his ways. This is especially true when the statutes grant this chance.
Sustaining the motion for summary judgment was improper, and I would reverse and remand for further proceedings.