Summary
The Nebraska Supreme Court reviewed a summary judgment entered in favor of Brian Altaffer against Majestic Roofing, LLC, and Dennis Jones. The court held that the district court improperly considered an affidavit that had been filed but not marked, offered, received, and preserved in the bill of exceptions. It reversed the judgment and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the district court could consider an affidavit filed in the court file but not marked, offered, received, and preserved in the bill of exceptions as evidence supporting summary judgment.
- Whether the district court properly granted summary judgment when the affidavit was not competent evidence before the court.
Holdings
- An affidavit used to support a motion for summary judgment must be marked, offered, received in evidence, and preserved in the bill of exceptions; filing the affidavit with the clerk and asking the court to take judicial notice of it is insufficient.
- The summary judgment was improper because, after excluding the improperly noticed affidavit, there was no evidence before the district court on which to base judgment.
Key quotations
“In order to receive consideration on appeal, any affidavits or depositions used on a motion for summary judgment must have been offered and received in evidence in the trial court and preserved in and made a part of the bill of exceptions.” (641 N.W.2d at 36)
“The problem here is that a party cannot place an affidavit in the court file and then request the court to take judicial notice of the facts contained in the affidavit.” (641 N.W.2d at 37)
“An affidavit must be marked, offered, received, and preserved in the bill of exceptions.” (641 N.W.2d at 37)
Factual background
Altaffer filed claims against Majestic Roofing, LLC, Dennis Jones, and Daniel J. Taylor arising from alleged contractual and related misconduct. Altaffer supported his motion for summary judgment with an affidavit filed with the district court clerk. At the hearing, the affidavit was not offered or received as an exhibit, was not included in the bill of exceptions, and Jones offered no evidence. The district court nevertheless took judicial notice of the affidavit and entered summary judgment against Majestic and Jones for $36,500.
Procedural history
Altaffer sued Majestic Roofing, LLC, Dennis Jones, and Daniel J. Taylor for breach of contract, fraudulent misrepresentation, slander, and other claims. The district court denied Altaffer's motion for default judgment against Jones, treated Jones' informal pleading as a sufficient answer, and then granted Altaffer summary judgment for $36,500 plus postjudgment interest and costs after taking judicial notice of an affidavit filed in the court file. Majestic and Jones appealed, arguing that the affidavit could not be considered because it had not been offered, received, and preserved as evidence.
Remand instructions
The cause was remanded to the district court for further proceedings.