Ferer v. Aaron Ferer & Sons

any postconviction review.51 As it happened, this court con-
cluded that the record was sufficient to review the issue and
found it to be without merit. But because the issue was appar-
ent from the record, it would have been procedurally barred
either way. Direct appeal counsel did not act deficiently in rais-
ing the issue, nor was Dunster prejudiced as a result. Dunster’s
final assignment of error is without merit.
ConClusion
For the reasons stated above, Dunster’s assignments of error
are either procedurally barred or without merit. Because the
files and records affirmatively show that Dunster is entitled to
no relief, there was no need for an evidentiary hearing.52 The
judgment of the district court denying Dunster’s motion for
postconviction relief is affirmed.
A ffirmed.
51 see, e.g., Thomas, supra note 34.
52 see Bazer, supra note 5.
AAron ferer And robin monsky, AppellAnts , And
shAron monsky, Appellee , v. AAron ferer &
sons C o., A nebrAskA CorporAtion,
et Al ., Appellees.
770 n.W.2d 608
Filed August 7, 2009. 	no. s-08-534.
1. Summary Judgment: Appeal and Error. in reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and the court gives that party the benefit of all
reasonable inferences deducible from the evidence.
2. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and the trial court’s decision will not be disturbed
absent an abuse of discretion.
3. Standing: Words and Phrases. standing is the legal or equitable right, title, or
interest in the subject matter of a controversy.
4. Corporations: Actions: Parties. Generally, a shareholder may not bring an
action in his or her own name to recover for wrongs done to the corporation or
its property.
282 	278 neBrAskA rePorTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

5. Corporations: Derivative Actions: Parties. The right of a shareholder to sue is
derivative in nature and normally can be brought only in a representative capacity
for the corporation.
6. Pleadings. Amendment of a complaint is not a matter of right.
Appeal from the District Court for Douglas County: peter
C. bAtAillon, Judge. Affirmed.
James D. sherrets and Jason M. Bruno, of sherrets &
Boecker, l.l.C., for appellants.
Thomas J. Culhane and Heather B. Veik, of erickson &
sederstrom, P.C., for appellee Aaron Ferer & sons Co.
Michael A. nelsen, of Hillman, Forman, nelsen, Childers &
McCormack, for appellees Matthew Ferer and Whitney Ferer.
heAviCAn, C.J., C onnolly, G errArd, stephAn, and miller-
lermAn, JJ.
per C uriAm.
nATure oF CAse
Aaron Ferer and robin Monsky (collectively appellants)
are shareholders of Aaron Ferer & sons Co. (AFs). They
initiated an action in 2001 against Matthew Ferer, Whitney
Ferer, and AFs (collectively appellees) in Douglas County
District Court.
Appellants’ fourth amended complaint asserted eight causes
of action. The first six were dismissed on summary judg-
ment, and we affirmed the dismissal in Ferer v. Aaron Ferer &
Sons (Ferer I).1 Following our decision, appellants voluntarily
dismissed their seventh cause of action. The district court
subsequently denied appellants’ motion to amend their fourth
amended complaint and granted appellees’ motion for sum-
mary judgment on the remaining eighth cause of action. The
court dismissed appellants’ fourth amended complaint, and this
appeal followed.
1 Ferer v. Aaron Ferer & Sons, 272 neb. 770, 725 n.W.2d 168 (2006).
Ferer v. AAron Ferer & sons 	283
Cite as 278 neb. 282

BACkGrounD
The operative complaint at issue in both Ferer I and the
case at bar is appellants’ fourth amended complaint, which set
forth eight causes of action: (1) declaratory judgment regard-
ing dissenters’ rights, (2) estoppel of AFs from asserting that
appellants have no dissenters’ rights, (3) statutory claim for a
dividend, (4) breach of fiduciary duty and statutory duty by
Matthew Ferer and Whitney Ferer, (5) specific performance
compelling payments to appellants, (6) involuntary liquidation,
(7) violation of applicable state securities laws, and (8) breach
of fiduciary duty and theft of a corporate opportunity. The first
six causes of action sought to compel appellees to comply with
the dissenters’ rights provisions of the Business Corporation
Act.2 Appellants sought to receive the value of their shares of
stock from AFs, compel appellees to pay appellants their pro
rata share of the proceeds from the sale of certain AFs assets,
and receive prejudgment interest.3
in Ferer I, the parties filed cross-motions for partial sum-
mary judgment, and the district court sustained appellees’
motion and dismissed appellants’ first six causes of action. it
also sustained in part appellants’ motion for partial summary
judgment. it ordered AFs to pay appellants for their company
shares under a plan of distribution that had been adopted by
AFs. This court affirmed the district court’s dismissal of appel-
lants’ first six causes of action in Ferer I.
Following our decision in Ferer I, AFs moved for summary
judgment on the remaining two causes of action. it argued that
appellants lacked standing to assert the remaining causes of
action. Appellants then sought leave to file a fifth amended
complaint, alleging discovery of new evidence of fraud by
Matthew Ferer and Whitney Ferer. The fifth amended complaint
attached to the motion alleged causes of action for “Breach of
Fiduciary Duty [by] Theft of Corporate opportunities” and
“involuntary liquidation.”
All parties moved for summary judgment on the remaining
two causes of action under the fourth amended complaint. At
2 neb. rev. stat. § 21-20,137 et seq. (reissue 2007).
3 see Ferer I, supra note 1.
284 	278 neBrAskA rePorTs

a subsequent hearing, appellants claimed they were entitled to
pursue their claim for involuntary liquidation under either their
fourth or proposed fifth amended complaint.
Appellants claimed that the district court’s dismissal of
their sixth cause of action was inadvertent and that, therefore,
it should not have been treated as dismissed. Appellants also
claimed that the court’s order of dismissal should have been
vacated because of newly discovered evidence, an affidavit
from a former AFs employee. in the affidavit, the employee
stated that while he worked for AFs, Matthew Ferer engaged in
the practice of understating the company’s inventory. The court
stated that it would consider the motion for summary judgment
only as to the eighth cause of action.
subsequently, appellants filed a motion for an order nunc
pro tunc, requesting that the district court reinstate their sixth
cause of action. Appellants voluntarily dismissed their seventh
cause of action.
After evidentiary hearings on all motions, the district court
entered judgment denying appellants’ motion for an order nunc
pro tunc, because the dismissal of the sixth cause of action was
intended and was not inadvertent. it also denied appellants’
motion to amend their fourth amended complaint, sustained
appellees’ motion for summary judgment on the eighth cause
of action, and dismissed as moot appellants’ motion for sum-
mary judgment on their eighth cause of action.
in granting summary judgment, the district court found:
it is clear from the allegations and prayer for relief in
the eighth Cause of Action, that [appellants] are assert-
ing a claim belonging to [AFs]. [Appellants] are required
to bring a derivative claim . . . for [AFs] in the name
of [AFs] and not in their own names. in addition, Neb.
Rev. Stat. §21-2071 provides that a shareholder may not
commence or maintain a derivative proceeding unless
the shareholder adequately represents the interest of the
corporation in enforcing the right of the corporation. it
is [sic] already been determined that [appellants’] per-
sonal interests are in the forefront of the litigation against
[AFs] and that, as a result, cannot properly represent the
interest of [AFs] in a derivative action as required by
Ferer v. AAron Ferer & sons 	285
Cite as 278 neb. 282

Neb. Rev. Stat. § 21-2071 ([r]eissue 1997). see Ferer v.
Erickson & Sed[er]strom, PC., 272 neb. 113, 718 n.W.2d
501 (2006). As noted, the [appellants’] eighth Cause of
Action fails as the [appellants] did not bring this cause of
action as representatives of the corporation.
The district court sustained appellees’ motions for summary
judgment. With the dismissal of the eighth cause of action,
all of appellants’ causes of action had been dismissed, and the
court dismissed the fourth amended complaint.
AssiGnMenTs oF error
Appellants claim, summarized and restated, that the dis-
trict court erred in failing to grant their motion for summary
judgment, in refusing to grant appellants leave to amend their
complaint, in refusing to grant appellants’ motion for an order
nunc pro tunc, and in granting appellees’ motion for sum-
mary judgment.
sTAnDArD oF reVieW
[1] in reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and the court gives
that party the benefit of all reasonable inferences deducible
from the evidence.4
[2] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and the trial court’s decision will not
be disturbed absent an abuse of discretion.5
AnAlYsis
Appellants claim the district court erred in failing to grant
their motion for summary judgment and to grant their request
to judicially dissolve the company. This argument is without
merit. Appellants sought involuntary liquidation in the sixth
cause of action of the complaint in Ferer I. That cause of
action was dismissed by the district court, and the dismissal
was affirmed by this court in Ferer I. The issue of involuntary
liquidation of AFs has been litigated and decided. The doctrine
4 Jardine v. McVey, 276 neb. 1023, 759 n.W.2d 690 (2009).
5 Reicheneker v. Reicheneker, 264 neb. 682, 651 n.W.2d 224 (2002).
286 	278 neBrAskA rePorTs

of res judicata bars relitigation not only of those matters actu-
ally litigated, but also of those matters which might have been
litigated in the prior action.6
Appellants next argue that the district court erred in failing
to grant their motion for summary judgment on the issue of
breach of fiduciary duty. Their cause of action for breach of
fiduciary duty by theft of a corporate opportunity alleged that
Matthew Ferer and Whitney Ferer purchased company stock
from minority shareholders and received consulting fees while
acting as directors of AFs. Appellants requested that the con-
sulting fees be considered corporate assets. The court sustained
appellees’ motion for summary judgment because appellants
asserted a claim that belonged to AFs.
[3] The district court also concluded that appellants lacked
standing to assert the breach of fiduciary duty claims against
Matthew Ferer and Whitney Ferer. The eighth cause of action
alleged wrongs committed by Matthew Ferer and Whitney
Ferer against AFs. standing is the legal or equitable right, title,
or interest in the subject matter of a controversy. standing is a
jurisdictional component of a party’s case, because only a party
who has standing may invoke the jurisdiction of a court.7
[4,5] The issue is whether appellants or AFs had the right to
bring an action for wrongs allegedly done to AFs or its prop-
erty. Generally, a shareholder may not bring an action in his or
her own name to recover for wrongs done to the corporation
or its property.8 such a cause of action is in the corporation
and not the shareholders.9 The right of a shareholder to sue is
derivative in nature and normally can be brought only in a rep-
resentative capacity for the corporation.10 Because this cause of
action was not brought in the name of AFs, it did not meet the
requirements of a derivative action.
6 Jensen v. Jensen, 275 neb. 921, 750 n.W.2d 335 (2008).
7 Agena v. Lancaster Cty. Bd. of Equal., 276 neb. 851, 758 n.W.2d 363
(2008).
8 Trieweiler v. Sears, 268 neb. 952, 689 n.W.2d 807 (2004).
9 Id.
10 Id.
Ferer v. AAron Ferer & sons 	287
Cite as 278 neb. 282

Previously, we held that appellants did not represent the
interests of AFs. in Ferer v. Erickson, Sederstrom,11 we deter-
mined that the personal interests of Aaron Ferer and robin
Monsky were at the forefront of the litigation against AFs and
that, as a result, they could not properly represent the interests
of AFs in a derivative action, as required by neb. rev. stat.
§ 21-2071 (reissue 2007). Therefore, the district court was
correct in granting summary judgment on the eighth cause
of action.
[6] Appellants argue that the district court erred in refus-
ing to grant them leave to amend their complaint. Permission
to amend a pleading is addressed to the discretion of the trial
court, and the trial court’s decision will not be disturbed absent
an abuse of discretion.12 Amendment of a complaint is not a
matter of right.13
Appellants’ proposed fifth amended complaint attempted to
resurrect their sixth cause of action for involuntary liquidation,
the dismissal of which was affirmed by this court in Ferer I.
Appellants now claim new grounds for their cause of action for
involuntary liquidation, based upon the affidavit of a company
manager who stated that Matthew Ferer and Whitney Ferer
undervalued the inventory of the company. The affiant was
AFs’ general manager during the 18 months that Aaron Ferer
served as vice president of AFs. This allegation was not set
forth in the fourth amended complaint.
The record indicates that Aaron Ferer made claims to AFs’
accountants relating to the company’s inventory in 2002, which
was well before the fourth amended complaint was filed. in
February or March 2002, Aaron Ferer complained that AFs’
inventory was being inaccurately recorded. This was more than
5 years before appellants attempted to assert these claims in
their proposed fifth amended complaint. We conclude the dis-
trict court did not abuse its discretion by denying the motion
for leave to file a fifth amended complaint.
11 Ferer v. Erickson, Sederstrom, 272 neb. 113, 718 n.W.2d 501 (2006).
12 Reicheneker v. Reicheneker, supra note 5.
13 see id.
288 	278 neBrAskA rePorTs

Appellants also claim the district court erred in denying their
motion for an order nunc pro tunc reinstating their sixth cause
of action for involuntary liquidation. in its order of April 22,
2008, the court expressly stated that it intended to dismiss the
sixth cause of action and that the dismissal was “no mistake.”
We find that the court has been extremely patient in dealing
with appellants’ repeated attempts to retry issues that have pre-
viously been decided. The court did not abuse its discretion in
denying appellants’ motion for an order nunc pro tunc.
Having previously decided in Ferer I that the district court
did not err when it dismissed appellants’ first through sixth
causes of action, we conclude that the district court did not
abuse its discretion in refusing to allow appellants to resur-
rect causes of action that have merely been repackaged and
rewrapped. The case of Aaron Ferer and robin Monsky versus
AFs, Matthew Ferer, and Whitney Ferer is over and done.
ConClusion
We find no merit to the assignments of error or argu-
ments made by appellants. The judgment of the district court
is affirmed.
A ffirmed.
WriGht, J., participating on briefs.
mCC ormACk, J., not participating.
rAsMussen v. sTATe FArM MuT. AuTo. ins. Co. 	289
Cite as 278 neb. 289
brent e. rAsmussen And kim rAsmussen, AppellAnts And
Cross -Appellees , v. stAte fArm mutuAl Automobile
insurAnCe C ompAny et Al ., Appellees , And kristA
lisbon, formerly knoWn As kristA vAn Wyhe ,
Appellee And Cross -AppellAnt.
770 n.W.2d 619
Filed August 7, 2009. 	no. s-08-747.
1. Summary Judgment. summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. in reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against