Petersen v. Bitters et al

Filing 221

MEMORANDUM AND ORDER that plaintiff Estate of Joyce Rosamond Petersen's motions for continuance under Fed. R. Civ. P. 56(d)(2) (Filing Nos. 208 and 215 ) are denied. Robert W. Boland, Jr. and William E. Bitters's joint Motion to Strike a nd for Sanctions (Filing No. 195 ) is granted in part and denied in part. All requests for sanctions are denied. Robert W. Boland, Jr.'s Motion for Summary Judgment (Filing No. 182 ) is granted. Robert W. Boland, Jr. is dismissed as a party. W illiam E. Bitters's Motion for Summary Judgment (Filing No. 184 ) is granted in part and denied in part. Summary judgment is granted in favor of William E. Bitters on the estate's claims of negligent misrepresentation, breach of contract as to the note, and assumpsit. Summary judgment is denied in all other respects. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ESTATE OF JOYCE ROSAMOND
PETERSEN,
8:16CV183
Plaintiff,
MEMORANDUM
AND ORDER

v.
WILLIAM E. BITTERS; ROBERT W.
BOLAND, JR.; and JOHN L. HENRY,
Defendants.

This matter is before the Court on defendants Robert W. Boland, Jr.’s (“Boland”) and
William E. Bitters’s (“Bitters”) respective Motions for Summary Judgment (Filing Nos. 182
and 184). See Fed. R. Civ. P. 56. Plaintiff Estate of Joyce Rosamond Petersen (the “estate”)
responded (Filings Nos. 193 and 194) to the motions, and Bitters and Boland have jointly
moved (Filing No. 195) to strike those responses and sanction the estate and defendant John L.
Henry (“Henry”). 1 The estate then moved to continue (Filing No. 208) summary-judgment
disposition under Fed. R. Civ. P. 56(d)(2). With jurisdiction under 28 U.S.C. § 1332, the Court
grants Boland’s motion, grants Bitters’s motion in part and denies it in part, grants the joint
motion in part and denies it in part, and denies the estate’s motion to continue summaryjudgment disposition.
I.

BACKGROUND
Joyce Rosamond Petersen (“Petersen”), a long-time resident of Omaha, Nebraska, met

Bitters, a financial advisor based out of Sioux City, Iowa, in 2006. 2 Bitters sold several
1

In their respective reply briefs (Filing Nos. 197 and 198), Bitters and Boland requested
leave to incorporate additional evidence into the summary-judgment record. Treating the reply
briefs as motions, the estate filed a response (Filing No. 201), and Boland and Bitters jointly
filed a reply (Filing No. 207) to that response. However, Filing Nos. 197 and 198 were reply
briefs and not proper motions. See NECivR 7.1 (describing motions and response briefs
separately). Boland and Bitters do not have leave to file additional evidence and the Court will
not consider Filing Nos. 201 and 207.

financial products to Petersen over the years, and, in 2008, prepared a promissory note for a
$150,000 unsecured loan from Petersen to Henry. Henry never repaid the loan, and Petersen
died on October 20, 2013.
On December 1, 2014, the estate filed suit in the United States District Court for the
Eastern District of Texas against Bitters, 3 Boland, and Henry (collectively, the “defendants”)
for damages arising from the unpaid loan. After the case was transferred to the District of
Nebraska, the estate filed an Amended Complaint (Filing No. 99) containing ten claims, seven
of which survived the defendants’ motions to dismiss (Filing Nos. 104, 106, and 112): (1)
breach of fiduciary duty, (2) negligence, (3) fraud, (4) negligent misrepresentation, (5) breach
of contract, (6) breach of the implied duty of good faith and fair dealing, and (7) assumpsit. A
chronology of this case can be found at Filing No. 203 and most recently at Filing Nos. 219
and 220. 4 Suffice it to say after years of acrimony, finger-pointing and thousands of pages of
motions, affidavits and other filings, the estate still claims it needs additional discovery and is
not ready for trial. The estate requests further time to prepare, even though the matter has been
pending since 2014, and the parties were less than diligent in approaching discovery in this
matter.

2

At that time, Petersen’s last name was “Scoggins” which she used until shortly after
she moved to Plano, Texas, in 2009 following the death of her husband in 2008.
3

In the Complaint (Filing No. 1) and the Amended Complaint (Filing No. 99), the estate
alleged Bitters does business as United Financial Information Services and/or United Financial
Services (“UFS”). UFS was previously listed on the docket sheet as a separate party, but the
docket sheet has been amended to correspond to the Amended Complaint.
4

Henry has engaged in a game of hide and seek throughout this lawsuit, claiming he was
not served with process and has not received filings from the Court and from counsel even
though sent to the address he provided. He even reveled in the fact that he was going to make
it difficult to serve him with process in this matter. Henry is a party to this lawsuit, and as such
the Court expects him to be present at trial. If he is not present, the Court will consider
sanctions or even an adverse judgment against Henry.
2

II.

DISCUSSION
A.

Standard of Review - Motion to Continue

Rule 56(d)(2) permits the Court to defer considering a motion for summary judgment
and to allow additional discovery when “a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition[.]”
A party moving for a continuance under Rule 56(d)(2) must make a good faith showing
that the additional evidence discovered might rebut the opposing party’s demonstration of the
absence of a genuine issue of material fact. Robinson v. Terex Corp., 439 F.3d 465, 467 (8th
Cir. 2006). It would not suffice for a party to simply recite facts it thinks may possibly be
gleaned from further discovery. Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822,
836-37 (8th Cir. 2015).

Parties invoking Rule 56(d)(2) must do so by affirmatively

demonstrating why they cannot respond to a movant’s affidavits as otherwise required and
“how postponement of a ruling on the motion will enable [them], by discovery or other means,
to rebut the movant’s showing of the absence of a genuine issue of fact.” Jackson v. Riebold,
815 F.3d 1114, 1121 (8th Cir. 2016) (quoting Toben v. Bridgestone Retail Operations, LLC,
751 F.3d 888, 894 (8th Cir. 2014).
In short, Rule 56(d)(2) does not permit a “fishing expedition.” Anzaldua, 793 F.3d at
837. And the Court enjoys wide discretion in deciding Rule 56(d)(2) motions. Id.
The Eighth Circuit has consistently found no abuse of discretion in the denial of Rule
56(d)(2) motions filed after the close of discovery or after extensive opportunity for discovery
has already has been presented. Elkharwily v. Mayo Holding Co., 823 F.3d 462, 471 (8th Cir.
2016) (reasoning that after two years of “exhaustive” discovery, the district court did not abuse
its discretion in denying additional discovery under Rule 56(d)(2)); Roe v. St. Louis Univ., 746
F.3d 874, 887 (8th Cir. 2014) (finding no abuse of discretion in denying Rule 56(d)(2) motion
where the discovery period lasted more than a year, discovery deadlines were extended four
times, and there was not a sufficient showing that additional discovery was necessary).

3

Put differently, Rule 56(d)(2) “is not designed to give relief to those who sleep upon
their rights” and a district court need not “spare litigants from their own lack of diligence.”
Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 29 (1st Cir.
2013). Delays caused by a party’s dilatory behavior, and a failure to timely utilize the
discovery mechanisms and remedies available under the Federal Rules, are a sufficient basis
for denial of a motion under Rule 56(d)(2). Id.
The estate did not begin discovery until seven months after the final progression order.
Even after a continuance was granted at the parties’ request (Filing No. 128), the estate’s
counsel did not depose Bitters or Boland until the April 16, 2018, deposition deadline. While
the estate argues additional discovery is necessary because Bitters and Boland violated a
discovery order (Filing No. 160), the alleged deficient discovery was served on March 5, 2018,
and supplemented on March 10, 2018. The summary-judgment motions were filed on March
20, 2018, and the estate waited until May 24, 2018 (Filing No. 208) and June 5, 2018 (Filing
No. 215) to file any motions to resolve discovery issues.
The estate’s attorneys have neither worked diligently to prepare for nor timely
responded to the pending summary-judgment motions.

The estate has not affirmatively

explained why it was unable to fully respond to Boland’s and Bitters’s summary-judgment
motions by the deadline imposed under the local rules, and it has not explained what evidence
could be presented if additional discovery and time was granted. The Court has denied (Filing
No. 220) the estate’s motions requesting adverse inferences against Bitters and Boland or
prohibiting the consideration of evidence supporting their affirmative defenses.
This case is set for trial beginning on July 9, 2018, with a pretrial conference on June
26, 2018. The estate’s motion for a Rule 56(d)(2) continuance will be denied.
B.

Standard of Review – Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support
4

the assertion by . . . citing to particular parts of materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
“A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Bitters
and Boland have objected to and moved to strike various statements and documents submitted
by the estate. The motion to strike is granted in part and denied in part. Without separately
addressing each piece of challenged evidence, the Court notes it has reviewed each of the
identified statements and documents, the cited evidence in support, and has considered, for the
purpose of summary judgment, the evidence the Court has found to be relevant, admissible,
and supported by the record. 5 The Court specifically finds Henry’s affidavit, though somewhat
self-serving and inconsistent, is not directly contradicted by clear deposition testimony such
that this Court finds it (at this time) to be a “sham affidavit.”
The Court views the evidence in the light most favorable to the nonmoving party, “[b]ut
there must still be enough evidence to allow a rational trier of fact to find for the [estate] on the
required elements of [its] claim[s].” Estate of Barnwell v. Watson, 880 F.3d 998, 1004 (8th
Cir. 2018). “If the party with the burden of proof at trial is unable to present evidence to
establish an essential element of that party’s claim, summary judgment on the claim is
appropriate because ‘a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.’” St. Jude Med., Inc. v.
Lifecare Int’l, Inc., 250 F.3d 587, 595 (8th Cir. 2001) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “The nonmoving party may not rely on allegations or denials, but must
demonstrate the existence of specific facts that create a genuine issue for trial.” Mann v.
Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).

5

The Court cautions the parties that a good deal of the evidence relied upon by the estate
at this stage is deemed admissible for the purpose of summary judgment but may not be
admissible in the same form at trial.
5

C.

The Estate’s Claims Against Boland

The claims against Boland are predicated only on the estate’s claim that Boland entered
into a partnership with Bitters and “is jointly and severally liable for Bitters’s misconduct.”
Boland argues he and Bitters are not partners and he has no relationship to any of the other
parties involved in the case.
“The association of two or more persons to carry on as co-owners a business for profit
forms a partnership, whether or not the persons intend to form a partnership.” Neb. Rev. Stat.
§ 67-410(1). 6 “The objective indicia of co-ownership are commonly considered to be: (1)
profit sharing, (2) control sharing, (3) loss sharing, (4) contribution, and (5) co-ownership of
property.” In re Keytronics, 744 N.W.2d 425, 441 (Neb. 2008). “The five indicia of coownership are only that; they are not all necessary to establish a partnership relationship, and
no single indicium of co-ownership is either necessary or sufficient to prove co-ownership.”
Id.

The estate bears the burden of establishing the existence of the partnership by a

preponderance of the evidence. Id. at 438.
The estate fails to present sufficient evidence to create a genuine issue of fact about the
existence of any partnership because, although Bitters and Boland clearly entered into some
form of association, there is no evidence of co-ownership. The only evidence the estate has
presented is (1) the presence of Boland’s profile on Bitters’s website; (2) Boland’s testimony
that they “have collaborated on speaking engagements, made referrals, and exchanged
financial and legal ideas over the years”; and (3) Bitters’s testimony that he and Boland wrote
articles together and he sometimes referred clients to Boland for trust work. This evidence
does not support the existence of any of the objective indicia of co-ownership. The estate
argues that the element of co-ownership is present “since they both financially benefited from

6

Although Bitters lives in Iowa and conducts business there in addition to Nebraska,
both parties cite Nebraska law in arguing for the existence or non-existence of the partnership.
Iowa and Nebraska have also both adopted the most recent version of the Uniform Partnership
Act. As such, the Court need not “entangl[e] itself in messy issues of conflict of laws.” Platte
Valley Bank v. Tetra Fin. Group, LLC, 682 F.3d 1078, 1084 (8th Cir. 2012) (quoting Phillips
v. Marist Soc. of Washington Province, 80 F.3d 274, 276 (8th Cir. 1996)).
6

their association together.” But mere mutual financial benefit between two separate entities—
standing alone—is not sufficient to establish co-ownership. The estate makes bold claims,
such as, “It is likely there was some direct compensation, as well, passed between [Boland] and
[Bitters] with relation to the referrals that [Bitters] made to [Boland].” These claims are not
supported by any evidence.
Although the allegation does not appear in the Amended Complaint, the estate
apparently now posits Bitters and Boland might have entered into a joint venture. However,
the estate also fails to meet the even higher burden of proof that applies to such a claim. See
Kohout v. Bennet Constr., 894 N.W.2d 821, 829 (Neb. 2017) (requiring clear and convincing
evidence to prove the existence of a joint venture). “First, because a joint venture cannot arise
as an operation of law, there must be evidence that [Boland] and [Bitters] intended to enter into
a voluntary agreement.” Id. at 831. Second, a joint venture requires two or more persons to
“contribute cash, labor, or property to a common fund with the intention of entering into some
business or transaction for the purpose of making a profit to be shared in proportion to the
respective contributions” and “[e]ach of the parties must have equal voice in the manner of its
performance and control of the agencies used therein, though one may entrust performance to
the other.” Lackman v. Rousselle, 596 N.W.2d 15, 23 (Neb. 1999). There is no evidence of
such an agreement, any profit sharing, or any equality of control.
Because Boland’s liability is entirely based on unsupported allegations of his
membership in a partnership or joint venture with Bitters, he is dismissed as a party.
D.

The Estate’s Claims Against Bitters
1.

Breach of Fiduciary Duty

To recover on a breach-of-fiduciary-duty claim, a plaintiff must prove: (1) the defendant
owed it a fiduciary duty; (2) the defendant breached the duty; (3) the breach was the cause of
the injury to the plaintiff; and (4) the plaintiff was damaged. McFadden Ranch, Inc. v.
McFadden, 807 N.W.2d 785, 790 (Neb. Ct. App. 2011). The existence and scope of a
fiduciary duty are questions of law for a court to decide. Gonzalez v. Union Pac. R.R., 803
7

N.W.2d 424, 446 (Neb. 2011). “A fiduciary duty arises out of a confidential relationship
which exists when one party gains the confidence of the other and purports to act or advise
with the other’s interest in mind.” Id. “In a confidential or fiduciary relationship in which
confidence is rightfully reposed on one side and a resulting superiority and opportunity for
influence are thereby created on the other, equity will scrutinize the transaction critically,
especially where age, infirmity, and instability are involved, to see that no injustice has
occurred.” Id.
Bitters argues he (1) owed no fiduciary duty to Petersen, (2) adequately reviewed
Henry’s financial information, and (3) merely introduced Petersen to Henry and prepared the
promissory note but did not advise Petersen to make the loan. These contentions rest on
disputed facts.
The estate has produced several individuals’ testimony claiming Bitters was Petersen’s
financial advisor and advised her to withdraw money from other investment vehicles to make
the subject loan. If believed, those facts could create a fiduciary relationship between Bitters
and Petersen.

See Hanigan v. Trumble, 562 N.W.2d 526, 531 (Neb. 1997) (listing an

individual’s work as a financial advisor as a source of a fiduciary relationship). The estate has
also submitted an expert report pursuant to Federal Rule of Civil Procedure 26(a)(2)(B)
opining Bitters breached his duty as a financial advisor both in recommending the loan and in
preparing the promissory note. Although this expert testimony may not be allowed in this
form at trial, it raises enough of a factual dispute to avoid summary judgment. The estate has
produced sufficient evidence to create a genuine dispute of material fact for each of the
elements of a claim for breach of fiduciary duty.
2.

Negligence

“In order to recover in a negligence action, a plaintiff must show a legal duty owed by
the defendant to the plaintiff, a breach of such duty, causation, and damages.” A.W. v.
Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 913 (Neb. 2010).

The elements of

negligence also “constitute the elements of a breach of fiduciary duty cause of action.”
8

McFadden Ranch, 807 N.W.2d at 789. Because “the breach of professional or fiduciary
duties” give rise to a breach of fiduciary duty claim,” id., an action for negligence based on a
breach of professional duties would be duplicative of a claim for breach of fiduciary duty. Cf.
Renner v. Wurdeman, 434 N.W.2d 536, 542 (Neb. 1989) (affirming a dismissal of a redundant
claim on summary judgment).
An action is based on professional negligence if the profession requires (1) “specialized
knowledge and often long and intensive preparation . . . ; (2) maintain[s] by force of
organization or concerted opinion high standards of achievement and conduct, and (3)
commit[s] its members to continued study and to a kind of work which has for its prime
purpose the rendering of a public service.” Parks v. Merrill, Lynch, Pierce, Fenner & Smith,
Inc., 684 N.W.2d 543, 550 (Neb. 2004). Whether an individual holds a license or regularly
supplements his education are factors to consider in making this determination. Jorgensen v.
State Nat’l Bank & Tr. Co., 583 N.W.2d 331, 335 (Neb. 1998).
The record in this case is insufficient for the Court to determine whether Bitters’s
activities as a financial advisor qualify as professional activity subject to a professional
standard of care. Bitters has a license to sell insurance in Nebraska, but how long he has held
this license is unknown. His continuing education and other facets of his job are similarly
unknown to the Court. Thus, dismissal of the estate’s negligence claim as redundant is
inappropriate at this stage.
3.

Fraud

To prove fraud under Nebraska law, a plaintiff must prove: (1) a representation was
made; (2) the representation was false; (3) when made, the representation was known to be
false or made recklessly without knowledge of its truth and as a positive assertion; (4) it was
made with the intention that the plaintiff should rely upon it; (5) the plaintiff did so rely; and
(6) the plaintiff suffered damage as a result. Freeman v. Hoffman La Roche, Inc., 618 N.W.2d
827, 844-45 (Neb. 2000). False representations must be the proximate cause of the damage
before a party may recover. Huffman v. Poore, 569 N.W.2d 549, 560 (Neb. Ct. App. 1997).
9

The estate alleges Bitters represented to Petersen that the loan to Henry was a sound and
reasonable investment and would make a suitable replacement for her annuity. The estate
claims Bitters made this representation either knowingly (aware Henry would not repay the
loan) or recklessly (without engaging in sufficient due diligence). The estate also claims
Bitters told Petersen “he would speak with Henry and ensure she would be repaid.”
The estate has not presented any evidence Bitters told Petersen the loan to Henry was
sound and reasonable, or that he told her it would make a suitable replacement for her annuity.
However, the estate has submitted enough evidence at this stage, to create a genuine dispute of
material fact as to Bitters’s alleged representation to Petersen that he would ensure she was
repaid. The estate appears able to present admissible testimony from Jilynn Wall that she
overheard Bitters assuring Petersen that Henry would repay her. The estate has also presented
an affidavit from Sharon Miller indicating Bitters told Petersen and others that Henry would
repay the debt and that if Petersen pursued legal action then she would receive nothing. It can
reasonably be inferred Petersen relied on the representation because she did not pursue legal
action and the estate was harmed because a source of evidence, Petersen’s own testimony, is
now lost due to her death.

The estate’s fraud claim against Bitters survives summary

judgment.
4.

Negligent Misrepresentation

Liability for negligent misrepresentation is based upon a failure to exercise reasonable
care or competence in supplying correct information. Gibb v. Citicorp Mortg., Inc., 518
N.W.2d 910, 920 (Neb. 1994). “Under the law of negligent misrepresentation, ‘one who, in a
transaction in which he has a pecuniary interest, supplies false information for the guidance of
others . . . is subject to liability for pecuniary loss caused by justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in obtaining or
communicating the information.’” Farm Credit Servs. of Am. v. Haun, FLCA, 734 F.3d 800,
805 (8th Cir. 2013) (applying Nebraska law).

10

The estate claims Bitters negligently misrepresented Henry’s “financial ability and
willingness to make repayments” to Petersen, but the estate fails to show that the transaction
between Petersen and Henry was one in which Bitters had a pecuniary interest. 7 Because the
estate cannot establish one of the required elements of its negligent-misrepresentation claim,
that claim is dismissed.
5.

Breach of Contract

To state a claim for breach of contract under Nebraska law, a plaintiff must plead facts
showing “the existence of a promise, its breach, damage, and compliance with the conditions
precedent which activate the defendant’s duty.” Dep’t of Banking & Fin. of Neb. v. Wilken,
352 N.W.2d 145, 147 (Neb. 1984). To create a contract, there must be both an offer, an
acceptance, and a meeting of the minds or a binding mutual understanding between the parties
to the contract. City of Scottsbluff v. Waste Connections of Neb., Inc., 809 N.W.2d 725, 740
(Neb. 2011).
The estate alleges Bitters had a written or oral contract with Petersen to provide
financial advice. It also claims Bitters assisted Henry in breaching the terms of the promissory
note. While the estate has presented sufficient evidence to create a genuine dispute about
whether Bitters was Petersen’s financial advisor, there is little evidence of

an actual

contractual relationship between Bitters and Petersen. Although not a model of clarity, the
Court nonetheless finds the estate has alleged sufficient facts and provided just enough
evidence of a contractual relationship between Bitters and Petersen to withstand summary
judgment as to that claim. 8

7

In a sworn declaration (Filing No. 193-4), Kurtis Fricke alleged Bitters received a
financial kickback from Henry’s purchase of life insurance with the funds received from
Petersen, but this testimony was previously stricken as improper expert testimony.
8

At trial, in order to submit this claim to the jury, the estate must specifically articulate,
through competent and admissible evidence, the terms and the existence of such a contract. It
will not suffice to simply state that Petersen considered Bitters her financial advisor.
11

In contrast, the estate provides no support for any breach-of-contract claim against
Bitters based on the promissory note. The promissory note, which neither party disputes is
accurate, creates a contractual relationship between Henry and the estate but contains no duties
for Bitters to perform and thus none he could breach. The estate’s breach-of-contract claim
against Bitters based on the promissory note is dismissed.
6.

Breach of the Implied Duty of Good Faith and Fair Dealing

The implied duty or covenant of good faith and fair dealing exists in every contract.
Farm Credit, 734 F.3d at 805. Because the estate has made some showing of a contract
between Petersen and Bitters (albeit tenuous), this claim will survive summary judgment.
7.

Assumpsit

To recover for assumpsit, which is also referred to as an action for money had and
received, a plaintiff must show the defendant: (1) received money; (2) retained possession of
the money; and (3) in justice and fairness ought to pay the money to the plaintiff. Abante, LLC
v. Premier Fighter, L.L.C., 836 N.W.2d 374, 379 (Neb. Ct. App. 2013).

An action in

assumpsit may be brought where a party has received money that in equity and good
conscience should be repaid to another. City of Scottsbluff, 809 N.W.2d at 739. When a party
uses an assumpsit action in this sense, it is a quasi-contract claim sounding in restitution. Id.
The estate alleges Bitters took money that belongs to the estate and has not returned it
because the money loaned to Henry was “upon information and belief, distributed with
Bitters.” There is no evidence to support this contention. According to Henry’s affidavit, he
used the loan money to pay a life-insurance premium, but any benefit Bitters received from this
was indirect. The estate’s assumpsit claim against Bitters is dismissed.
E.

Statutes of Limitations

Bitters argues the estate’s claims are barred by Nebraska’s various statutes of
limitations. See Neb. Rev. Stat. §§ 25-207, 25-222 (creating four-year limitation on fraud and
other torts and two-year limitation on professional negligence). The estate disagrees, arguing
12

the professional-negligence limitation does not apply, the discovery rule delayed the accrual of
the claims, and the doctrine of equitable estoppel bars Boland and Bitters from relying on the
statutes of limitations.
For the reasons stated earlier in the section on negligence, the lack of developed
specific facts make it impossible to determine that the two-year limitation on professional
negligence applies as a matter of law. The alleged actions underlying the estate’s fraud claim
continued until 2013, so at least a portion of Bitters’s alleged fraud may fall within the fouryear statute of limitations. Anthony K. v. Neb. HHS, 855 N.W.2d 788, 801-02 (Neb. 2014)
(explaining the accrual of continuing torts). In any event, the Court finds the estate has
presented sufficient facts for the issue of equitable estoppel to survive summary judgment.
Under Nebraska law, a plaintiff or the estate must satisfy six elements, three of which
apply to its own conduct and three of which apply to the conduct of the defendant, to avoid a
statute of limitations under the doctrine of equitable estoppel. Woodard v. City of Lincoln, 588
N.W.2d 831, 836 (Neb. 1999).
The elements of equitable estoppel are, as to the party estopped: (1) conduct
which amounts to a false representation or concealment of material facts, or at
least which is calculated to convey the impression that the facts are otherwise
than, and inconsistent with, those which the party subsequently attempts to
assert; (2) the intention, or at least the expectation, that such conduct shall be
acted upon by, or influence, the other party or other persons; and (3) knowledge,
actual or constructive, of the real facts. As to the other party, the elements are:
(1) lack of knowledge and of the means of knowledge of the truth as to the facts
in question; (2) reliance, in good faith, upon the conduct or statements of the
party to be estopped; and (3) action or inaction based thereon of such a character
as to change the position or status of the party claiming the estoppel, to his or her
injury, detriment, or prejudice.
Olsen v. Olsen, 657 N.W.2d 1, 8 (Neb. 2003).
The estate has shown a genuine dispute as to the elements of equitable estoppel at this
stage of the litigation based on the same evidence on which its fraud claim survives. Summary
judgment will not be granted on any of the estate’s claims based on the statutes of limitations.
13

F.

Sanctions

The estate has requested sanctions, dredging up past discovery disputes and claiming
Bitters’s affidavit contains false statements. In their motion to strike, Bitters and Boland
likewise request sanctions against the estate, the estate’s counsel, and Henry under Federal
Rule of Civil Procedure 56(h). While this litigation has involved endless bickering between
counsel and an unwarranted number of voluminous and repetitive filings, the Court does not
conclude at this time, that the affidavits were submitted in bad faith.

No sanctions are

granted. 9
III.

CONCLUSION
After considering the competent summary-judgment evidence, the Court concludes the

estate has not presented sufficient evidence to prove Boland is liable for Bitters’s alleged
actions based on a theory of partnership liability or membership in a joint venture. The estate
has also failed to support its negligent misrepresentation, breach of contract (on the note), and
assumpsit claims against Bitters, but has presented sufficient evidence to support its breach of
contract (with Bitters), breach of the duty of good faith and fair dealing, breach of fiduciary
duty, negligence, and fraud against Bitters. Accordingly,
IT IS ORDERED:
1.

Plaintiff Estate of Joyce Rosamond Petersen’s motions for continuance under
Fed. R. Civ. P. 56(d)(2) (Filing Nos. 208 and 215) are denied.

2.

Robert W. Boland, Jr. and William E. Bitters’s joint Motion to Strike and for
Sanctions (Filing No. 195) is granted in part and denied in part.

3.

All requests for sanctions are denied.

4.

Robert W. Boland, Jr.’s Motion for Summary Judgment (Filing No. 182) is
granted.

5.

Robert W. Boland, Jr. is dismissed as a party.

6.

William E. Bitters’s Motion for Summary Judgment (Filing No. 184) is granted
in part and denied in part.

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Should admissible trial testimony establish that any of the affidavits were submitted in
bad faith, the Court may revisit this ruling.
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7.

Summary judgment is granted in favor of William E. Bitters on the estate’s
claims of negligent misrepresentation, breach of contract as to the note, and
assumpsit. Summary judgment is denied in all other respects.

Dated this 22nd day of June, 2018.
BY THE COURT:

Robert F. Rossiter, Jr.
United States District Judge

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