Kotlarz v. Olson Bros., Inc.

cases determined
in the
nebraska cOUrt OF aPPeaLs
()
M ary K otlarz and david K otlarz , appellants and
cross - appellees , v . olson B ros ., inc ., a neBrasKa
corporation , appellee and cross - appellee , and
powers -M eyers -carlisle , a project - specific
joint venture , appellee and cross - appellant .
740 n.W.2d 807
Filed October 9, 2007. 	no. a-05-247.
. Summary Judgment. summary judgment is proper when the pleadings and the
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact 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 appellate review of a summary judg-
ment, 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.
3. ____: ____. a question of law raised in the course of consideration of a motion for
summary judgment, as with any question of law, must be decided by the appellate
court without reference to the decision of the trial court.
4. Negligence: Proof. the mere happening of an accident is insufficient as a matter
of law to prove negligence.
5. Negligence: Proximate Cause. an allegation of negligence is insufficient where
the finder of fact must guess the cause of the accident.
6. Summary Judgment. On a motion for summary judgment, the question is not how
a factual issue is to be decided, but whether any real issue of material fact exists.
7. ____. Where reasonable minds differ as to whether an inference supporting the
ultimate conclusion can be drawn, summary judgment should not be granted.
8. Summary Judgment: Proof. a party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the mov-
ant is entitled to judgment if the evidence were uncontroverted at trial. Once the
moving party makes a prima facie case, the burden to produce evidence showing
the existence of a material issue of fact that prevents judgment as a matter of law
shifts to the party opposing the motion.
9. Circumstantial Evidence. circumstantial evidence is not inherently less probative
than direct evidence.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

0. Limitations of Actions: Service of Process. according to neb. rev. stat. § 25-27
(cum. supp. 2006), there is a 6-month grace period for service of summons on a
defendant who has been sued within the statute of limitations.
. Limitations of Actions: Notice. the relation-back statute, neb. rev. stat.
§ 25-20.02 (cum. supp. 2006), eliminated the 6-month grace period from the
time in which the substituted defendant could have acquired notice of the suit.
appeal from the district court for douglas county: G ary
B. randall, Judge. affirmed in part, and in part reversed and
remanded.
James 	e. 	harris, 	britany 	s. 	shotkoski, 	and 	michaela
skogerboe, of harris kuhn Law Firm, L.L.P., for appellants.
Jerry W. katskee and melvin r. katskee, of katskee, henatsch
& suing, for appellee Olson bros., inc.
P. shawn mccann, of sodoro, daly & sodoro, P.c., for
appellee Powers-meyers-carlisle.
irwin , sievers, and cassel, Judges.
sievers, Judge.
mary kotlarz and david kotlarz appeal the order of the dis-
trict court for douglas county granting summary judgment in
favor of Olson bros., inc. (Olson), and Powers-meyers-carlisle,
a project-specific joint venture (Pmc) (collectively appellees).
We find that summary judgment was not proper as to defendant
Olson, and therefore, we reverse, and remand the cause as to
such defendant. With respect to defendant Pmc, we sustain the
grant of summary judgment and dismissal of the cause, although
on the basis of the statute of limitations as raised in Pmc’s
cross-appeal.
FactUaL backGrOUnd
Viewed in a light most favorable to the kotlarzes, the record
reflects the following facts: On march 30, 999, mary attended
a physical therapy session at alegent health Lakeside clinic
(the clinic) located in Omaha. the property was under con-
struction, but it was open to the public. On march 30, there was
no construction work being performed on the premises, or in
2 	6 nebraska aPPeLLate rePOrts

the area where mary parked, because it was an extremely windy
day with wind gusts of around 45 miles per hour.
around 5 p.m., after her physical therapy appointment, mary,
carrying a traction device, walked to her car, opened her trunk
with a key, and placed the traction device in her car. mary’s car
was facing north at the time. during this time, mary did not
notice anything blowing around in the wind. as she was clos-
ing the trunk, there was a gust of wind, and mary felt a sharp
blow to the base of her neck on the left side and then “excru-
ciating pain.” mary did not know where the object came from,
she did not see what hit her, and there were no eyewitnesses.
nevertheless, immediately after she felt the sharp blow to her
neck, she saw a piece of 4- by 8-foot foam sheet, which did not
appear to be damaged, fly through the air in front of her. mary
then walked back to the clinic, and while she was walking back,
she saw three foam sheets in the parking area which appeared
to be the same as the foam sheet that she saw after she was
struck. mary went inside the clinic, reported that she had been
hit and that there was debris flying around outside, and then
was treated for her injuries. mary’s son arrived shortly thereafter
and retrieved a piece of foam sheet he found in the parking lot.
mary said that the piece of foam sheet recovered by her son was
the same composition as the foam sheet that she saw right after
being struck, as well as being the same as the three foam sheets
mary observed as she returned to the clinic after the incident.
Pmc was the general contractor for the building project
at alegent health Lakeside Wellness center (alegent), which
was located adjacent to the clinic. Pmc is a project-specific
joint venture between Power construction company, an illinois
corporation, and meyers-carlisle construction company, a cor-
poration qualified to do business in nebraska. Olson was the
roofing subcontractor for the building project.
PrOcedUraL backGrOUnd
On march 26, 2003, the kotlarzes filed a complaint in the
district court for douglas county alleging that the appellees’
negligence caused injuries to mary and that david suffered from
a resulting loss of consortium due to mary’s injuries. the com-
plaint named Olson and “meyers-carlisle-Leapley construction
kOtLarz v. OLsOn brOs., inc. 	3
cite as 6 neb. app. 

co., inc[.,] f/k/a Powers-meyers-carlisle” as defendants. the
complaint alleged that on march 30, 999, mary was injured
by a piece of construction material, a “4′ x 8′ piece of foam
board,” which was not properly secured at the construction site
and which was blowing around due to strong winds at the time
mary was closing the trunk of her car. among the allegations of
negligence, the complaint stated that the appellees failed to take
and enforce adequate safety precautions and to properly secure
the roofing materials.
“meyers-carlisle-Leapley construction company, inc., f/k/a
Powers-meyers-carlisle,” filed an answer to the complaint deny-
ing any negligence. Olson’s answer admitted that the winds
on march 30, 999, were “unusually strong” and that it was
engaged in roofing work at the alegent site, but Olson denied
any negligence.
On august 4, 2003, the kotlarzes and “meyers-carlisle-
Leapley construction company, inc., f/k/a Powers-meyers-
carlisle,” filed a stipulation agreeing that such party name was a
misnomer and stating that “‘Powers-meyers-carlisle, a Project-
specific Joint Venture’”—Pmc—should be substituted in its
place. Part of the stipulation provided that Pmc was making a
voluntary appearance and waiving service of process, and it was
provided that Pmc would have 4 days in which to answer the
suit. the district court granted the stipulation.
in late august 2004, Olson filed a motion for summary
judgment. On september 3, Pmc filed a motion for summary
judgment, alleging both that the kotlarzes were not entitled to
judgment as a matter of law and that the kotlarzes’ complaint
was barred by the applicable statute of limitations. also on
september 3, Pmc filed an answer and cross-claim admitting
that it was the general contractor for the alegent project; deny-
ing any negligence on its part; admitting that on march 30, 999,
mary was attending a physical therapy appointment at the clinic;
and asserting that all construction material had been secured on
the day of her appointment. Pmc cross-claimed against Olson,
stating that Pmc had entered into a subcontract agreement with
Olson for the roofing work at the premises, and prayed for con-
tribution or indemnity against Olson in the event that Pmc was
found liable for all or part of the kotlarzes’ damages.
4 	6 nebraska aPPeLLate rePOrts

additionally, 	the 	affidavit 	of 	stanley 	stanek, 	an 	Olson
employee, was received into evidence. stanek said that on march
30, 999, construction was postponed because of high winds,
and that in the morning, he and another employee secured “all
Olson roofing materials stacked near the southwest corner of
the building,” making certain that the materials were “covered
by a tarp and weighted by tires.” stanek also said that there was
ongoing construction at properties around the alegent site, but
that he did not know whether construction was ceased at those
sites on march 30. stanek further stated he could not say that
the “broken piece of foam board” recovered by mary’s son “was
product that we used on the subject project or that it came from
an area of the construction site under Olson’s control or that of
the general contractor, Pmc.” in attempting to contradict Pmc’s
affirmative defense that the “accident that occurred was a result
of the negligence of other persons or entities” and in response to
stanek’s affidavit stating that there was construction ongoing at
the properties around and adjacent to the alegent site, mary pro-
duced a report from a consulting meteorologist stating, within a
“reasonable degree of meteorological certainty,” that on march
30, the wind was from the south, gusting to around 45 miles per
hour. the meteorologist opined that it was “unlikely that foam
boards from [another] construction site, located approximately
.4 miles to the northwest of the incident site, were the ones that
struck [mary]”; it was “highly probable that the insulation/foam
board that struck [mary] blew from the stock pile of foam board
located . . . south of the incident site”; and “based on the fact
that the car of [mary] was facing north and the rear of her car
was facing south, the wind which was from the south could have
blown the trunk open, but not shut.”
On may 24, 2005, the district court sustained the motions for
summary judgment and dismissed the kotlarzes’ complaint. the
district court found:
[V]iewing the evidence in [mary’s] favor and giving her
the benefit of any inferences from the evidence, a fact-
finder would have to guess at the possible cause of the
accident. simply put, mary . . . doesn’t know what, if any-
thing, hit her to cause pain in her shoulder and neck area.
she saw a piece of foam construction sheet fly past her,
kOtLarz v. OLsOn brOs., inc. 	5
cite as 6 neb. app. 

but she doesn’t know if that foam sheet actually hit her and
she doesn’t know where it came from. there is no evidence
that contradicts the Olson employee’s sworn statement that
he helped secure all the construction materials at the site
on that day and that Olson may not have actually used the
type of foam board retrieved from the parking lot. there
also is evidence of other construction activity going on in
the area.
. . . .
. . . [t]o accept [mary’s] allegations as creating a fact
issue, the court must resort to guess, speculation, conjec-
ture, or a choice of possibilities. the court must guess that
the foam construction sheet that mary . . . saw fly past
her actually hit her, when [she] herself cannot positively
say so. the court must then speculate that the piece of the
foam retrieved by [mary’s] son was the actual foam sheet
that may or may not have hit [mary] and may or may not
have flown past her, without the benefit of any support-
ing evidence. the court must then accept that the foam
sheet somehow came loose from the weighted tarp at the
[appellees’] construction site because it was not properly
secured, again, without any such evidence.
after some maneuvering, that we need not detail here, a final
order was entered, and the kotlarzes have timely appealed.
assiGnments OF errOr
the kotlarzes contend, restated and consolidated, that the
trial court erred in finding that no genuine issue of material
fact exists and in granting summary judgment in favor of the
appellees. On cross-appeal, Pmc contends that the district
court erred in failing to grant Pmc’s motion to dismiss and in
failing to grant summary judgment based upon the statute of
limitations.
standard OF reVieW
[,2] summary judgment is proper when the pleadings and
the evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
6 	6 nebraska aPPeLLate rePOrts

is entitled to judgment as a matter of law. Bennett v. Labenz,
265 neb. 750, 659 n.W.2d 339 (2003). 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 deduc-
ible from the evidence. Id.
[3] a question of law raised in the course of consideration of
a motion for summary judgment, as with any question of law,
must be decided by the appellate court without reference to the
decision of the trial court. see Essen v. Gilmore, 259 neb. 55,
607 n.W.2d 829 (2000).
anaLYsis
[4-8] We begin with some general principles of law. the
mere happening of an accident is insufficient as a matter of law
to prove negligence. Parker v. Lancaster Cty. Sch. Dist. No.
001, 256 neb. 406, 59 n.W.2d 532 (999). an allegation of
negligence is insufficient where the finder of fact must guess
the cause of the accident. Id. On a motion for summary judg-
ment, the question is not how a factual issue is to be decided,
but whether any real issue of material fact exists. Goff-Hamel
v. Obstetricians & Gyns., P.C., 256 neb. 9, 588 n.W.2d 798
(999). Where reasonable minds differ as to whether an infer-
ence supporting the ultimate conclusion can be drawn, summary
judgment should not be granted. Schade v. County of Cheyenne,
254 neb. 228, 575 n.W.2d 622 (998). moreover, a party mov-
ing for summary judgment must make a prima facie case by
producing enough evidence to demonstrate that the movant is
entitled to judgment if the evidence were uncontroverted at trial.
Marksmeier v. McGregor Corp., 272 neb. 40, 722 n.W.2d 65
(2006). Once the moving party makes a prima facie case, the
burden to produce evidence showing the existence of a material
issue of fact that prevents judgment as a matter of law shifts to
the party opposing the motion. Id.
[9] mary’s lawsuit rests on the following premises: () mary
was struck with a foam sheet, (2) the foam sheet was from the
construction site being worked by the appellees, and (3) the
appellees failed to secure the foam sheets at the site in the face
of unusually high winds. the district court’s decision, and in turn
kOtLarz v. OLsOn brOs., inc. 	7
cite as 6 neb. app. 

the appellees’ argument to this court, is based largely on the fact
that no one saw an object hit mary, and mary herself does not
“know” what hit her. in considering the appellees’ arguments,
we bear in mind that on a summary judgment motion, mary gets
the benefit of the evidence viewed most favorably to her, includ-
ing reasonable inferences—and key factual propositions may be
present (for summary judgment purposes) simply by reasonable
inference. the appellees’ argument and the district court’s deci-
sion appear to disregard the notion that circumstantial evidence
is not inherently less probative than direct evidence. see State v.
Castor, 262 neb. 423, 632 n.W.2d 298 (200).
the district court relied upon Swoboda v. Mercer Mgmt. Co.,
25 neb. 347, 557 n.W.2d 629 (997), in granting the summary
judgment. in Swoboda, an elderly woman, marie swoboda,
was injured when she fell on a stairway landing; she could not
remember the circumstances of the fall, and there were no eye-
witnesses. swoboda’s granddaughter, who was with her at the
time, did not observe the fall itself, but only saw swoboda sit-
ting on the floor with her legs extended down the ramp that led
from the landing. there was evidence that swoboda did not have
trouble walking prior to the fall and that the ramp’s configura-
tion was in violation of building codes. the district court granted
summary judgment, reasoning that swoboda’s allegation that
the ramp caused her fall was based solely on speculation and
conjecture and that therefore, no genuine issue of material fact
existed. the nebraska supreme court upheld the district court’s
grant of summary judgment, stating that while circumstantial
evidence may be used to prove causation, the evidence must be
sufficient to fairly and reasonably justify the conclusion that the
defendant’s negligence was the proximate cause of the plaintiff’s
injury. the supreme court further stated that while swoboda was
not required to eliminate all alternate theories regarding how the
accident may have happened, she was “required to establish with
a reasonable probability that the accident happened in the man-
ner alleged in her petition.” Id. at 35, 557 n.W.2d at 632. the
supreme court concluded that because there was no “basis” upon
which a finder of fact could determine whether swoboda tripped
over the ramp which violated building codes or simply tripped
on the top step, the evidence was insufficient as a matter of law
8 	6 nebraska aPPeLLate rePOrts

to create an inference that the ramp was the proximate cause of
the fall. Id. at 352, 557 n.W.2d at 632. the court explained that
a jury would be presented with at least two possibilities of the
cause for her fall, but that the evidence “leaves the jury with the
prospect of guesswork as to which of these possibilities actually
caused swoboda’s injuries.” Id. at 352-53, 557 n.W.2d at 633.
in contrast to Swoboda, supra, mary has provided a basis for a
jury to determine how her injury occurred, although her chain
of causation is admittedly circumstantial evidence. Whether a
jury would accept the chain of circumstantial evidence is not the
issue on this motion for summary judgment. in Swoboda, a jury
would have no evidentiary basis—circumstantial or direct—upon
which to decide that the out-of-code ramp was the cause of the
fall, but this record presents a different case.
additionally, the kotlarzes correctly point out that in Swoboda,
the plaintiff could not remember the circumstances surrounding
her fall, while in this case, mary recalls all of the circumstances
of the incident on march 30, 999. “[i]t is merely the fact that
she could not see what was coming up from behind her that
prevents her from saying for sure what struck her.” brief for
appellants at 6.
mary saw a foam sheet fly past her immediately upon being
struck, but she did not “know” what hit her or where the object
came from that hit her. Only with rearview vision could mary
truly “know” what struck her, but if complete personal knowl-
edge or an eyewitness were the legal standard, circumstantial
evidence would be of little or no value. clearly, circumstantial
evidence may be used to prove causation, provided it fairly and
reasonably justifies the conclusion that the appellees’ negli-
gence was the proximate cause of mary’s injury. mary was not
required to eliminate all alternate theories, such as a piece of
material from another construction site hitting her.
the appellees adduced evidence that they covered and
weighted down their foam sheets. the appellees also produced
an affidavit from stanek, in which stanek stated he could not
say that the “broken piece of foam board” recovered by mary’s
son was a product Olson or Pmc used on the subject project or
that it came from an area of the construction site under Olson’s
or Pmc’s control. but, such evidence is not conclusive on this
kOtLarz v. OLsOn brOs., inc. 	9
cite as 6 neb. app. 

motion for summary judgment and may be met by opposing
circumstantial evidence—which it has been in this case.
Viewing the evidence in a light most favorable to mary, there
was circumstantial evidence leading to three inferences. First,
there is an inference that mary was struck by the foam sheet,
because mary saw a foam sheet fly by her immediately after
she was struck, and the wind was blowing at her back—which
could cause a foam sheet to fly toward her back as she stood at
the trunk of her car. Given the reasonable inference that mary
was struck by a foam sheet, the second permissible inference
is that the foam sheet came from the appellees’ pile of foam
sheets. the record shows that the appellees had foam sheets at
the construction site, and mary testified that she saw three other
foam sheets in the parking lot that were the same as the one
that flew past her—and the location of the stored foam sheets
in relation to mary’s location, given the direction of the wind,
would be consistent with potential of such a sheet being blown
toward her. the third inference is that the appellees did not
properly secure their roofing materials, given mary’s testimony
in her deposition that she saw three other foam sheets in the
parking area as she walked back to the clinic that were the same
as the one she saw fly by her when she was struck. this evi-
dence allows the inference that the foam sheets at the alegent
construction site were not secured and weighted down; other-
wise, four foam sheets would not have been blowing around the
parking area.
the evidence, when viewed most favorably to mary, allows
the reasonable inference that she was struck by a foam sheet
from the appellees’ supply thereof at their alegent construc-
tion site, which supply had not been properly secured in the
face of severe winds. such conclusions would not be guesses or
speculation, but, rather, acknowledgment that necessary factual
propositions can be proved circumstantially. therefore, sum-
mary judgment was improper on this record.
Pmc alleges that the trial court erred in not dismissing Pmc
from the lawsuit on statute of limitations grounds. the suit was
filed 4 days before the statute of limitations for a personal injury
action such as this would have run. see neb. rev. stat. § 25-207
(reissue 995). Pmc concedes that it has waived any defense of
0 	6 nebraska aPPeLLate rePOrts

lack of jurisdiction, insufficiency of process, and insufficiency
of service of process. Pmc’s argument is that because it was not
named as a proper defendant in the complaint filed on march 26,
2003, and was substituted as a party pursuant to a stipulation on
august 4, Pmc was not sued within the 4-year statute of limita-
tions for tort actions.
[0] through the stipulation, the parties agreed upon the
proper 	defendant, 	Pmc. the 	originally 	named 	party 	was
“meyers-carlisle-Leapley 	construction 	co., 	inc[.,] 	f/k/a
Powers-meyers-carlisle, a nebraska corporation.” On may 2,
2003, robert J. carlisle was served with the summons. such
service was within the 6-month “grace period” for service of
summons on a defendant who has been sued within the stat-
ute of limitations. see neb. rev. stat. § 25-27 (cum. supp.
2006). see, also, Smeal v. Olson, 263 neb. 900, 644 n.W.2d
550 (2002).
On June 7, 2003, attorney michael t. Gibbons wrote
to Jeffrey a. karp, who identified himself in his summary
judgment affidavit as the executive vice president of Power
construction company. karp’s affidavit also stated that he was
the “Project executive” for Pmc on the alegent construction
project. Gibbons’ letter to karp was attached to karp’s affidavit
and stated:
as you may or may not be aware, meyers-carlisle was
recently sued by an individual who allegedly suffered injury
while exiting [the clinic] on march 30, 999. as you can
see from the face of the complaint, [the kotlarzes] have
incorrectly 	listed 	meyers-carlisle 	as 	“Powers-meyers-
carlisle, a nebraska corporation.”
Ultimately, this lawsuit was turned over to meyers-
carlisle’s general liability insurer, cincinnati insurance
company. i was hired by cincinnati insurance company to
defend meyers-carlisle. through discussing this case with
bob carlisle, however, it has come to my attention there
was a Joint Venture agreement entered into between Power
construction and meyers-carlisle on July 24, 998. . . .
. . . i expect [the kotlarzes’] attorney will amend the
complaint to include the proper entity pursuant to the
misnomer statute in nebraska. additionally, we filed an
kOtLarz v. OLsOn brOs., inc. 	
cite as 6 neb. app. 

answer and served [the kotlarzes’] attorney with written
discovery in an effort to expedite our quest to learn more
about [mary’s] alleged injuries.
approximately a month after this letter, Gibbons entered into
the aforementioned stipulation filed on august 4, 2003, pro-
viding that the captioned defendant, “meyers-carlisle-Leapley
construction company, inc., f/k/a Powers-meyers-carlisle, a
nebraska corporation” (hereinafter mcL), was a misnomer
and that “‘Powers-meyers-carlisle, a Project-specific Joint
Venture’”—Pmc—should be substituted in its place. the stipu-
lation further provided that the “properly named and substi-
tuted defendants will be referred to collectively as ‘Powers-
meyers-carlisle.’” the original answer filed by Gibbons for
mcL did not assert a statute of limitations defense but alleged
(consistent with the stipulation) that “the alegent . . . project
was performed by a joint venture known as Powers-meyers-
carlisle, a project-specific joint venture. this project-specific
joint venture was entered into and performed by meyers-carlisle
construction company . . . qualified to do business in the state
of nebraska . . . and Power construction company, an illinois
corporation . . . .”
the joint venture, Pmc, did not file an answer or a cross-
claim until september 2004, when, with counsel other than
Gibbons, Pmc alleged that the claim was barred by the statute
of limitations. the trial court’s decision did not address this
defense, which we see as an issue of law. therefore, we address
the issue in light of our finding that summary judgment was
improper on the liability issue.
[] the statute of limitations defense implicates the relation-
back statute, neb. rev. stat. § 25-20.02 (cum. supp. 2006),
which has been mentioned by the nebraska supreme court in
Smeal v. Olson, 263 neb. 900, 644 n.W.2d 550 (2002) (Smeal),
to the extent that the court noted that such statute was enacted
during the time that the petition for further review of this court’s
decision in Smeal v. Olson, 0 neb. app. 702, 636 n.W.2d 636
(200), was pending before the supreme court. see 2002 neb.
Laws, L.b. 876. therefore, in Smeal, the supreme court did
not discuss the effect of the new statute, and, although the court
ultimately reversed our decision, it agreed with our holding
2 	6 nebraska aPPeLLate rePOrts

that the time in which the substituted party could have notice
of the suit included the 6-month grace period for service of
process provided for in § 25-27. however, the enactment of
§ 25-20.02 eliminated the 6-month grace period from the time
in which a substituted defendant could have acquired notice of
the suit. section § 25-20.02(2) provides:
if the amendment changes the party or the name of the
party against whom a claim is asserted, the amendment
relates back to the date of the original pleading if (a) the
claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, and (b)
within the period provided for commencing an action the
party against whom the claim is asserted by the amended
pleading (i) received notice of the action such that the
party will not be prejudiced in maintaining a defense on
the merits and (ii) knew or should have known that, but for
a mistake concerning the identity of the proper party, the
action would have been brought against the party.
(emphasis supplied.)
Smeal dealt with a substituted party who was neither sued
nor served with process within the statute of limitations or
the 6-month grace period provided by § 25-27, but who was
alleged by the plaintiff to have had notice of the original peti-
tion before the cumulative time bar of the statute of limitations
and the 6-month grace period for service under § 25-27. the
nebraska supreme court found that it was the substituted
defendant’s burden to come forward with evidence to pierce the
plaintiff’s allegation in the amended petition that such defend-
ant “‘had notice of Plaintiff’s original Petition prior to the time
bar.’” 263 neb. at 909, 644 n.W.2d at 558. as a result of the
substituted defendant’s failure to carry such burden, the sum-
mary judgment granted by the trial court was reversed.
turning to the present case, after the substitution of the joint
venture, Pmc, for mcL, there was no new petition or com-
plaint filed, and, notably, no allegation by the kotlarzes that
Pmc, the joint venture, had notice of the suit before march
30, 2003. On the motion for summary judgment, the previously
referenced affidavit of karp was introduced in evidence, and it
kOtLarz v. OLsOn brOs., inc. 	3
cite as 6 neb. app. 

states that Pmc was aware of the incident involving mary at
the alegent site shortly after it was reported by her, and that
while Pmc was aware of the potential of a claim shortly after
the incident, Pmc was unaware that suit had been filed until
receipt of the June 7 letter from Gibbons, from which we
have quoted above. karp’s affidavit stands uncontested by the
kotlarzes. as a result, Pmc has carried its burden imposed by
Smeal to show lack of notice of the suit, which notice—because
of the passage of § 25-20.02—Pmc must have had before the
statute of limitations ran on march 30, remembering that the
6-month grace period for service under § 25-27 is no longer
included in the calculation, as it was in Smeal. see, also, Reid
v. Evans, 273 neb. 74, 733 n.W.2d 86 (2007). therefore, the
statute of limitations bars the kotlarzes’ suit against Pmc, the
joint venture.
cOncLUsiOn
We, therefore, reverse the grant of summary judgment as to
defendant Olson, because there are material issues of fact as to
such defendant, and we remand the cause for further proceed-
ings as to such defendant. We affirm the grant of summary judg-
ment and the dismissal with prejudice as to Pmc, but on the
basis that the suit against such defendant is barred by the statute
of limitations.
affirMed in part , and in part
reversed and reManded .
john c. M itchell , appellee and cross - appellant ,
v . teaM financial , inc ., et al ., appellants
and cross - appellees .
740 n.W.2d 368
Filed October 9, 2007. 	no. a-05-27.
. Contracts: Guaranty: Words and Phrases. a guaranty is a collateral undertaking
by one person to answer for the payment of a debt or the performance of some
contract or duty in case of the default of another person who is liable for such pay-
ment or performance in the first instance.
4 	6 nebraska aPPeLLate rePOrts