State ex rel. Wagner v. Gilbane Bldg. Co.

court, to place juveniles in residential or nonresidential eval
uation services.
We conclude that DHHS, and not the juvenile court, has
the authority to direct the performance of an evaluation under
§§ 43 281 and 43 413. This authority includes the ability to
place the juvenile during the performance of the evaluation.
The juvenile court therefore exceeded its authority in ordering
specific placements in these cases.
CONCLUSION
The juvenile court acted in excess of its statutory author
ity when it ordered specific placements for Taylor and Levi.
However, because the instant appeals are moot, and our conclu
sion reached under the public interest exception to the moot
ness doctrine, we dismiss the present appeals.
A ppeAls dismissed .
stAte of N ebrAskA ex rel . l. tim WAgNer , director of
iNsurANce of the stAte of N ebrAskA, As liquidAtor
of A mWest surety iNsurANce compANy , Appellee ,
v . gilbANe buildiNg compANy , A rhode islANd
corporAtioN, AppellANt .
757 N.W.2d 194
Filed October 31, 2008. 	No. S 07 805.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
3. 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 is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
4. Contracts: Principal and Surety: Words and Phrases. Suretyship is a contrac
tual relation resulting from an agreement whereby one person, the surety, engages
to be answerable for the debt, default, or miscarriage of another, the principal.
686 	276 NebraSka repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

5. Principal and Surety. a surety on a performance bond is bound in the manner
and to the extent provided in the obligation.
6. Statutes: Legislature: Public Policy. It is the Legislature’s function through the
enactment of statutes to declare what is the law and public policy.
7. Statutes: Legislature: Presumptions. The Legislature is presumed to know the
general condition surrounding the subject matter of the legislative enactment, and
it is presumed to know and contemplate the legal effect that accompanies the
language it employs to make effective the legislation.
8. Statutes. a statute is not to be read as if open to construction as a matter of
course. Where the words of a statute are plain, direct, and unambiguous, no
interpretation is needed to ascertain the meaning. In the absence of anything to
indicate the contrary, words must be given their ordinary meaning. It is not within
the province of a court to read a meaning into a statute that is not warranted by
the legislative language.
9. Statutes: Legislature: Intent. Where the Legislature does not enact an exception
to a statutory rule, a court must assume that the Legislature intended to do what
it did.
10. Summary Judgment. Unsworn summaries of facts or arguments and of state
ments which would be inadmissible in evidence are of no effect in a motion for
summary judgment.
11. ____. as a procedural equivalent to a trial, a summary judgment is an extreme
remedy because a summary judgment may dispose of a crucial question in liti
gation, or the litigation itself, and may thereby deny a trial to the party against
whom the motion for summary judgment is directed.
appeal from the District Court for Lancaster County: J ohN
A. colborN, Judge. affirmed in part, and in part reversed and
remanded for further proceedings.
robert F. Craig and Jenna b. Taub, of robert F. Craig, p.C.,
for appellant.
Michael S. Degan and Theresa D. koller, of blackwell
Sanders, L.L.p., and robert L. Nefsky of rembolt Ludtke,
L.L.p., for appellee.
heAvicAN, 	c.J., 	W right , 	coNNolly , 	gerrArd , 	stephAN,
mccormAck , and miller -lermAN, JJ.
stephAN, J.
amwest Surety Insurance Company (amwest) was declared
insolvent on June 7, 2001, and is the subject of a liquidation
order entered pursuant to the Nebraska Insurers Supervision,
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	687
Cite as 276 Neb. 686

rehabilitation, and Liquidation act (NISrLa).1 The ques
tion presented in this appeal is whether the district court for
Lancaster County erred in determining as a matter of law that
four payments made by amwest to gilbane building Company
(gilbane), the obligee on a performance bond, were preferences
avoidable by the liquidator pursuant to § 44 4828. We affirm
the judgment of the district court as to three of the payments.
We reverse, and remand for further proceedings with respect to
the remaining payment, which was made more than 4 months
prior to the filing of the petition for liquidation, because there
is a genuine issue of material fact as to whether amwest was
insolvent at the time of the payment.
baCkgrOUND
In 1997, gilbane entered into a subcontract with Crane
plumbing & Heating Co., Inc. (Crane), under which Crane
was to perform plumbing work on a construction project
in Cambridge, Massachusetts. pursuant to the subcontract,
Crane obtained a “Labor and Material payment bond” and a
“performance bond.” both bonds were issued by amwest, as
surety, on or about December 17, 1997. gilbane was named as
the obligee on each bond.
In January 2000, Crane abandoned the project and defaulted
on its subcontract. gilbane notified amwest of the default
and demanded that it complete Crane’s portion of the project
pursuant to the performance bond. amwest subsequently made
payments to gilbane for costs associated with completion of
Crane’s contractual obligations. The first payment was made on
January 5, 2001, when amwest issued a check in the amount
of $357,779.69 to gilbane. gilbane deposited the check on
January 12. The second payment, a check in the amount of
$26,150.23, was issued by amwest to gilbane on april 9 and
deposited in gilbane’s account on or about april 10. The third
payment, a check in the amount of $215,292.12, was issued
by amwest to gilbane on april 13 and deposited in gilbane’s
account on april 17. The final payment, a check in the amount
1 Neb. rev. Stat. §§ 44 4801 to 44 4862 (reissue 1998).
688 	276 NebraSka repOrTS

of $4,222.04, was issued by amwest on May 21 and deposited
in gilbane’s account on May 24.
amwest obtained a replacement subcontract for comple
tion of the project. On March 28, 2001, amwest and gilbane
entered into a release of the performance bond relating to the
original subcontract with Crane, but not related to the replace
ment subcontract.
a petition to place amwest in liquidation was filed on June
6, 2001, and amwest was declared insolvent in an order entered
on the following day. Subsequently, the Nebraska Director of
Insurance, in his capacity as liquidator, filed a complaint alleg
ing that the four payments made by amwest to gilbane in 2001
were preferential transfers voidable under § 44 4828 and seek
ing recovery in a total amount of $603,444.08 from gilbane.
gilbane filed an answer denying the claims and setting forth
several affirmative defenses. The parties filed cross motions for
summary judgment.
The district court entered summary judgment in favor of the
liquidator and overruled gilbane’s motion. The court deter
mined that the second, third, and fourth payments from amwest
to gilbane were made within 4 months before the filing of the
petition for liquidation and were therefore voidable as prefer
ences.2 The court further determined that there was no issue of
material fact as to the insolvency of amwest at the time of the
first payment in January 2001. The court determined that all
four payments were made by amwest to gilbane on account of
an antecedent debt and that such payments allowed gilbane to
obtain a greater percentage of such debt than another creditor
in the same class would receive. The court rejected gilbane’s
contention that it was a mere conduit for another party and not
an actual creditor responsible for a voidable preference. The
district court also rejected gilbane’s contention that the trans
fers were made for a current expense in the ordinary course of
business and, thus, not in satisfaction of an antecedent debt.
based upon these findings, the district court entered judgment
in favor of the liquidator and against gilbane in the amount
of $603,444.08.
2 See § 44 4828(1)(b)(ii).
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	689
Cite as 276 Neb. 686

gilbane filed this timely appeal, and we moved it to our
docket on our own motion pursuant to our statutory authority
to regulate the caseloads of the appellate courts of this state.3
aSSIgNMeNTS OF errOr
Quoted 	verbatim, 	gilbane’s 	brief 	assigns 	the 	following
errors:
(1) The District Court erred in granting [the liquidator’s]
Motion for Summary Judgment because the [liquidator]
failed to prove the statutory elements of a preference.
(2) The District Court erred in denying [gilbane’s]
Motion for partial Summary Judgment regarding affirma
tive defenses for preference actions.
(3) The District Court erred in overruling [gilbane’s]
Motion for Summary Judgment.
The liquidator argues that these assignments are generalized
and vague and should be disregarded by this court.
STaNDarD OF reVIeW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen
dent conclusion irrespective of the determination made by the
court below.4
[2,3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.5 In reviewing a summary judg
ment, an appellate court views the evidence in the 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.6
3 See Neb. rev. Stat. § 24 1106(3) (reissue 1995).
4 State v. Hense, ante p. 313, 753 N.W.2d 832 (2008); State v. Rodriguez-
Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
5 Marcovitz v. Rogers, ante p. 199, 752 N.W.2d 605 (2008); County of
Hitchcock v. Barger, 275 Neb. 872, 750 N.W.2d 357 (2008).
6 Id.
690 	276 NebraSka repOrTS

aNaLYSIS
as a threshold matter, we agree that gilbane’s assign
ments of error are broadly stated. a generalized and vague
assignment of error that does not advise an appellate court
of the issue submitted for decision will not be considered.7
accordingly, we consider the assignments of error only inso
far as they are narrowed by the specific arguments asserted in
gilbane’s brief.8
coNtrolliNg priNciples
The issues presented in this appeal are governed by the
provisions of NISrLa. NISrLa authorizes a liquidator to
avoid certain transfers by the insolvent insurer, including those
which constitute a preference.9 a “preference” is defined by
NISrLa as
a transfer of any of the property of an insurer to or for the
benefit of a creditor, for or on account of an antecedent
debt, made or suffered by the insurer within one year
before the filing of a successful petition for liquidation
under the Nebraska Insurers Supervision, rehabilitation,
and Liquidation act the effect of which transfer may
be to enable the creditor to obtain a greater percent
age of such debt than another creditor of the same class
would receive.10
a preference may be avoided by the liquidator if the insurer
was (1) insolvent at the time of the transfer; (2) the transfer
was made within 4 months before the filing of the success
ful petition for liquidation; (3) the recipient or its agent had
reasonable cause to believe the insurer was insolvent or was
about to become insolvent at the time the transfer was made;
or (4) the creditor receiving the transfer was a person with
whom the insurer did not deal at arm’s length, for example,
7 Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004); Miller v. City
of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).
8 See Trieweiler v. Sears, supra note 7.
9 §§ 44 4821(u) and 44 4828(b).
10 § 44 4828(1)(a).
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	691
Cite as 276 Neb. 686

an employee or attorney.11 The term “[c]reditor” is defined by
NISrLa as “a person having any claim, whether matured or
unmatured, liquidated or unliqidated, secured or unsecured, or
absolute, fixed, or contingent.”12 When a preference is void
able, the liquidator may recover the transferred property from
the person who received it, subject to certain rights of bona
fide purchasers.13
WAs gilbANe creditor of A mWest ?
gilbane argues that the liquidator sued the wrong entity. It
contends that it was not a creditor of amwest potentially liable
for a voidable preference, but was rather a “mere conduit”
through which the payments made by amwest passed en route
to the owner of the construction project.14 In rejecting this
argument, the district court determined that gilbane was the
“general contractor on the project and, as such, was responsible
to the owner for [its] completion.” gilbane describes its role in
the project as a “construction manager” responsible for manag
ing the project and administering payments on behalf of the
owner and subcontractors.15
Whether gilbane was the “general contractor” or “con
struction manager” does not matter. The relationship of the
parties at the time of the transfers in question was defined
by the performance bond, which stated that Crane as princi-
pal and amwest as surety were “held and firmly bound unto
gILbaNe . . . as Obligee” (emphasis supplied) in the amount
of $2,120,000 “for the payment whereof principal and Surety
bind themselves, their heirs, executors, administrators, suc
cessors and assigns, jointly and severally, firmly by these
presents.” The bond further recites that Crane and gilbane had
entered into a contract for certain construction work on the
Cambridge project and that the bond was given to secure per
formance of Crane’s contractual obligations to gilbane.
11 § 44 4828(b)(i) to (iv).
12 § 44 4803(2).
13 § 44 4828(1)(c).
14 brief for appellant at 9.
15 Id.
692 	276 NebraSka repOrTS

[4,5] Suretyship is a contractual relation resulting from
an agreement whereby one person, the surety, engages to be
answerable for the debt, default, or miscarriage of another,
the principal.16 a surety on a performance bond is bound in
the manner and to the extent provided in the obligation.17
The performance bond at issue in this case bound amwest to
fulfill Crane’s contractual obligations to gilbane in the event
of Crane’s default. When Crane defaulted, gilbane asserted a
claim that amwest fulfill its obligations under the bond, and
amwest made payments directly to gilbane pursuant to that
obligation. amwest and gilbane were the only parties to the
agreement to release of the performance bond.
These facts are clearly distinguishable from In re FSC
Corp.,18 the bankruptcy case upon which gilbane relies. In that
case, a corporation entered into an indenture agreement with a
bank which was designated as the indenture trustee. The agree
ment was intended to facilitate a series of loans to the corpo
ration made by investors who held debentures. The indenture
agreement provided that the corporation would send semi
annual interest payments to the bank for transmittal to deben
ture holders. While insolvent, and within 90 days prior to fil
ing its petition in bankruptcy, the corporation made an interest
payment to the bank, which transmitted the funds to debenture
holders pursuant to the indenture agreement. The bankruptcy
court held that while the corporation’s transfer constituted a
preference, the bank had no liability because it acted solely as
the agent for its principals, the debenture holders.
In this case, gilbane was the sole obligee named in the per
formance bond. It was not identified as an agent for a disclosed
principal, as it now contends. The fact that gilbane used the
funds it received from amwest to pay a replacement subcon
tractor demonstrates that the transfers were both to and for the
benefit of gilbane, in that they permitted the completion of
16 See, Rodehorst v. Gartner, 266 Neb. 842, 669 N.W.2d 679 (2003); Sawyer
v. State Surety Co., 251 Neb. 440, 558 N.W.2d 43 (1997).
17 See School Dist. No. 65R v. Universal Surety Co., 178 Neb. 746, 135
N.W.2d 232 (1965).
18 In re FSC Corp., 64 b.r. 770 (W.D. pa. 1986).
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	693
Cite as 276 Neb. 686

Crane’s original contractual obligation to gilbane. There is no
merit to gilbane’s argument that it was a “mere conduit” of the
funds it received from amwest.
cAN pAymeNts mAde iN ordiNAry course of busiNess
coNstitute voidAble prefereNces uNder NisrlA?
gilbane argues that because amwest made the payments
at issue in the ordinary course of its business as a surety, the
payments cannot constitute voidable preferences. The federal
bankruptcy Code in effect in 2001 specifically provided that
to the extent that a transfer was in payment of a debt incurred
by the debtor “in the ordinary course of business or financial
affairs of the debtor and the transferee” and the transfer was
“made in the ordinary course of business or financial affairs
of the debtor and the transferee” or “made according to ordi
nary business terms,” it could not be avoided as a preference.19
although NISrLa contains no similar provision, gilbane
invites us to read an “ordinary course of business” exception
into the statute, following the lead of an Ohio appellate court
in an unpublished opinion.20
[6 9] We decline the invitation. as we noted at the outset,
the law applicable to this case is statutory. It is the Legislature’s
function through the enactment of statutes to declare what is the
law and public policy.21 The Legislature is presumed to know
the general condition surrounding the subject matter of the
legislative enactment, and it is presumed to know and contem
plate the legal effect that accompanies the language it employs
to make effective the legislation.22 as we have long held:
a statute is not to be read as if open to construction as a
matter of course. Where the words of a statute are plain,
direct, and unambiguous, no interpretation is needed to
19 11 U.S.C. § 547(c)(2) (2000).
20 Covington 	v. 	HKM 	Direct 	Market 	Communications, 	Inc., 	No.
03ap 52, 2003 WL 22784378 at *2 (Ohio app. Nov. 25, 2003) (unpub
lished opinion).
21 Stewart v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007).
22 Id., citing Ludwig v. Board of County Commissioners, 170 Neb. 600, 103
N.W.2d 838 (1960).
694 	276 NebraSka repOrTS

ascertain the meaning. In the absence of anything to
indicate the contrary, words must be given their ordinary
meaning. It is not within the province of a court to read a
meaning into a statute that is not warranted by the legisla
tive language.23
Where the Legislature does not enact an exception to a statu
tory rule, this court “must assume that the Legislature intended
to do what it did.”24
The ordinary course of business exception was codified in
the federal bankruptcy Code before the Nebraska Legislature
enacted NISrLa in 1989.25 although the Legislature specif
ically exempted certain transfers from being considered as
avoidable preferences,26 it did not enact an ordinary course of
business exception. as noted, it is not our function to create
exceptions to statutory rules.27 We agree with the district court
that amwest’s obligation to gilbane under the performance
bond at the time of the principal’s default was an “antecedent
debt” for which the four challenged payments were made.
do “N et result rule ” ANd § 44-4828(9) A pply ?
gilbane argues that the district court erred in not applying
the “net result rule,” a principle once applied under the federal
bankruptcy act of 1898 to claims for balances due on an open
account.28 The majority of courts have held that the net result
rule is no longer viable, given subsequent amendments to the
23 Bachus v. Swanson, 179 Neb. 1, 4, 136 N.W.2d 189, 192 (1965).
24 Loewenstein v. Amateur Softball Assn., 227 Neb. 454, 458, 418 N.W.2d
231, 234 (1988).
25 See, 11 U.S.C. § 547; §§ 44 4801 to 44 4862. See, also, In re Paris
Industries Corp., 130 b.r. 1 (D. Me. 1991); In re Cook United, Inc., 117
b.r. 884 (N.D. Ohio 1990).
26 See § 44 4828(4) and (9).
27 See, e.g., Stewart v. Bennett, supra note 21; Farber v. Lok-N-Logs, Inc.,
270 Neb. 356, 701 N.W.2d 368 (2005); Loewenstein v. Amateur Softball
Assn., supra note 24; Bachus v. Swanson, supra note 23.
28 brief for appellant at 16. See, Yaple v. Dahl-Millikan Grocery Co., 193
U.S. 526, 24 S. Ct. 552, 48 L. ed. 776 (1904); Jaquith v. Alden, 189 U.S.
78, 23 S. Ct. 649, 47 L. ed. 717 (1903).
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	695
Cite as 276 Neb. 686

1898 act.29 More importantly, the net result rule is not included
in NISrLa, so we need not discuss it further.
gilbane makes a related argument that the district court
erred in not applying § 44 4828(9), which provides:
If a creditor has been preferred and afterward in good
faith gives the insurer further credit without security
of any kind for property which becomes a part of the
insurer’s estate, the amount of the new credit remaining
unpaid at the time of the petition may be set off against
the preference which would otherwise be recoverable
from him or her.
gilbane’s brief lacks any clear explanation of how this defense
applies in this case, and we perceive none. gilbane did not
advance credit to amwest, and there is no claim of setoff.
Section 44 4828(9) does not apply to this case.
WAs A mWest iNsolveNt At time of
trANsfers to gilbANe ?
The second, third, and fourth transfers from amwest to
gilbane occurred within the 4 month period before amwest
filed its petition under NISrLa. Under § 44 4828(1)(b)(ii),
the liquidator could avoid these transfers without proving that
amwest was insolvent at the time of the transfer. We conclude
that the district court did not err in granting the liquidator’s
motion for summary judgment as to these transfers, totaling
$245,664.39.
The transfer in January 2001 is more problematic. because
it occurred outside the 4 month period, the liquidator alleged
and was obligated under § 44 4828(1)(b)(i) to prove that
amwest was insolvent at the time of the transfer. an insurer
is considered “insolvent” under NISrLa if it is “unable to
pay its obligations when they are due or when its admit
ted assets do not exceed its liabilities plus the greater of: (i)
any capital and surplus required by law to be maintained; or
29 In re Frigitemp Corp., 753 F.2d 230 (2d Cir. 1985); In re Wadsworth Bldg.
Components, Inc., 711 F.2d 122 (9th Cir. 1983); In re Fulghum Const.
Corp., 706 F.2d 171 (6th Cir. 1983); In re Swallen’s, Inc., 266 b.r. 807
(S.D. Ohio 2000).
696 	276 NebraSka repOrTS

(ii) The total par or stated value of its authorized and issued
capital stock.”30 as the party moving for summary judgment,
the liquidator had the initial burden to show that there was no
genuine issue of material fact and that it was entitled to judg
ment as a matter of law.31 Thus, the liquidator was required to
produce evidence which, if uncontroverted, would establish
that amwest was insolvent at the time of the January 2001
payment to gilbane.
In preference cases arising under federal bankruptcy law,
courts have held that the testimony of an accountant or other
financial expert is generally necessary to prove insolvency at the
time of a challenged transfer.32 Michael James Fitzgibbons, an
accountant who served as special deputy receiver for amwest,
testified that Joseph J. DeVito was retained to review certain
financial records which Fitzgibbons and others under his super
vision had prepared to show the financial condition of amwest
as of June 30, 2000, and to determine whether amwest was
insolvent as of that date. Fitzgibbons acknowledged that he
had not made any determination that amwest was insolvent as
of January 5, 2001, the date of the initial transfer to gilbane,
but, rather, drew the conclusion that amwest was continually
insolvent after June 30, 2000. The record includes reports
purportedly authored by DeVito, one dated February 28, 2006,
and the second dated June 28, 2006. both reports are attached
to the affidavit of an attorney representing the liquidator,
which merely indicates that the reports are true and correct
copies. The reports set forth DeVito’s opinion regarding the
insolvency of amwest as of June 30, 2000, and subsequent to
that date. gilbane objected to “the relevancy, materiality and
competency” of the DeVito reports. The district court took the
30 § 44 4803(14)(b).
31 See, Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008);
Malolepszy v. State, 273 Neb. 313, 729 N.W.2d 669 (2007); Lovette v.
Stonebridge Life Ins. Co., 272 Neb. 1, 716 N.W.2d 743 (2006).
32 See, In re Roblin Industries, Inc., 78 F.3d 30 (2d Cir. 1996); In re Prime
Realty, Inc., 380 b.r. 529 (8th Cir. b.a.p. 2007); In re Doctors Hosp. of
Hyde Park, Inc., 360 b.r. 787 (N.D. Ill. 2007); In re Indus. Ceramics,
Inc., 253 b.r. 323 (W.D.N.Y. 2000).
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	697
Cite as 276 Neb. 686

objection under advisement and overruled it in its final order.
For the sake of completeness, we note that while gilbane’s
counsel stated during a November 25, 2005, hearing that
DeVito’s deposition was taken, the deposition is not included
in our record.
[10] although gilbane did not assign error with respect to
the court’s ruling on its objections to the DeVito reports, it
argues on appeal that the reports do not support the liquidator’s
contention that amwest was insolvent as of the January 2001
payment to gilbane. We agree, although for a different, more
basic reason than that advanced by gilbane. Neb. rev. Stat.
§ 25 1332 (Cum. Supp. 2006) provides that the “evidence that
may be received on a motion for summary judgment includes
. . . affidavits.” Such affidavits, however,
shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith.33
The affidavit of counsel identifying the attached “true and cor
rect” copies of DeVito’s reports does not convert such reports
into affidavits. The reports themselves are not sworn and do
not meet the statutory definition of an affidavit.34 Unsworn
summaries of facts or arguments and of statements which
would be inadmissible in evidence are of no effect in a motion
for summary judgment.35 accordingly, we do not consider the
DeVito reports on the question of whether amwest’s insol
vency at the time of the first transfer was established as a
matter of law.
This leaves only the “conclusion” drawn by Fitzgibbons
from “operational results of amwest . . . subsequent to June
30th of 2000” that amwest was insolvent at all times subse
quent to that date. The record does not reflect whether or not
33 Neb. rev. Stat. § 25 1334 (reissue 1995).
34 Neb. rev. Stat. § 25 1241 (reissue 1995).
35 Kulhanek v. Union Pacific RR., 8 Neb. app. 564, 598 N.W.2d 67 (1999).
See White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988).
698 	276 NebraSka repOrTS

Fitzgibbons was “qualified as an expert by knowledge, skill,
experience, training, or education”36 to make this determina
tion, or the methodology he utilized in doing so. Fitzgibbons’
testimony is insufficient to meet the liquidator’s prima facie
burden on the issue of insolvency.
[11] as a procedural equivalent to a trial, a summary judg
ment is an extreme remedy because a summary judgment may
dispose of a crucial question in litigation, or the litigation
itself, and may thereby deny a trial to the party against whom
the motion for summary judgment is directed.37 On this record,
we simply cannot conclude as a matter of law that amwest
was insolvent within the meaning of NISrLa at the time of its
initial payment to gilbane in January 2001.
CONCLUSION
The district court correctly determined that the liquidator
was entitled to summary judgment with respect to its claims
that the three payments made by amwest to gilbane within 4
months prior to the filing of amwest’s petition for liquidation
were voidable preferences for which gilbane is liable to the
liquidator. However, for the reasons discussed, we conclude
that the district court erred in granting summary judgment with
respect to the initial payment made in January 2001, more than
4 months before the filing of the petition. On that issue, we
reverse, and remand for further proceedings consistent with
this opinion.
A ffirmed iN pArt , ANd iN pArt reversed ANd
remANded for further proceediNgs .
36 See Neb. rev. Stat. § 27 702 (reissue 1995).
37 Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000);
Bruning v. Law Offices of Ronald J. Palagi, 250 Neb. 677, 551 N.W.2d 266
(1996).
STaTe ex reL. WagNer v. gILbaNe bLDg. CO. 	699
Cite as 276 Neb. 686