Livingston v. Pacific Realty Commercial

she had a legitimate reason for the removal, I agree with the
portion of the majority opinion which concludes that Sharon
failed to demonstrate that it was in Hannah’s best interests to
continue to reside with her. As such, I agree with the major-
ity’s ultimate conclusion to reverse the district court’s ruling
granting Sharon’s request to permanently reside in Las Vegas
with Hannah.
Ron L ivingston, JR., appeLLant, v. pacific R eaLty
commeRciaL, L.L.c., doing business as gRubb
& eLLis /pacific R eaLty, et aL., appeLLees.
773 N.W.2d 169
Filed September 15, 2009. 	No. A-08-1058.
1. Summary Judgment: Notice. A party is entitled to notice of a motion for sum-
mary judgment and an opportunity to be heard and to offer evidence in opposition
to the motion.
2. ____: ____. When an issue is not presented in a summary judgment motion, the
opposing party does not have notice to defend against the issue.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
Jodi 	neLson, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Staci Hartman-Nelson for appellant.
Randall L. Goyette and Andrea D. Snowden, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellees.
iRwin, sieveRs, and casseL, Judges.
iRwin, Judge.
I. INTRODUCTION
Ron Livingston, Jr., appeals from an order of the district
court granting the motion of McGill Restoration, Inc., for sum-
mary judgment and dismissing Livingston’s claims as to both
McGill Restoration and Pacific Realty Commercial, L.L.C.
(Pacific Realty). On appeal, Livingston argues that the district
court erred in granting summary judgment to Pacific Realty.
Because Pacific Realty did not file a motion for summary
LIVINGSTON v. PACIFIC REALTy COMMERCIAL 	13
Cite as 18 Neb. App. 13
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

judgment and because McGill Restoration’s motion for sum-
mary judgment did not provide adequate notice to Livingston
that Pacific Realty’s liability was an issue being raised at the
summary judgment hearing, we reverse that part of the district
court’s order dismissing Livingston’s claims against Pacific
Realty and remand the matter for further proceedings consist-
ent with this opinion.
II. BACKGROUND
Pacific Realty manages the “Atrium Building” in Lincoln,
Nebraska, and hired McGill Restoration to repair concrete
on the exterior of the building. Livingston was employed by
McGill Restoration and was one of the workers assigned to
complete the work at the Atrium Building. Livingston was
injured while working at the building when he walked under a
“dump chute” at the same time that another employee released
debris into the chute.
Livingston filed a claim against McGill Restoration in the
Nebraska Workers’ Compensation Court. Although it is not
clear from the record how Livingston’s workers’ compensation
claim was ultimately decided, Livingston does admit that he
received payments from McGill Restoration as a result of his
injuries and McGill Restoration provides some indication that
Livingston was awarded workers’ compensation benefits.
After receiving workers’ compensation benefits from McGill
Restoration, Livingston filed a complaint in district court,
alleging that Pacific Realty was also liable for his injuries
because it had a nondelegable duty to ensure the “demolition”
work was completed in a safe manner and because Pacific
Realty had a nondelegable duty to comply with safety stan-
dards and regulations. Livingston joined McGill Restoration
as a party to the action pursuant to Neb. Rev. Stat. § 48-118
(Reissue 2004).
In its response to Livingston’s complaint, Pacific Realty
asserted a cross-claim against McGill Restoration. In the
cross-claim, 	Pacific 	Realty 	alleged 	that 	its 	contract 	with
McGill Restoration included an indemnification clause. Pacific
Realty alleged that this clause required McGill Restoration to
14 	18 NEBRASKA APPELLATE REPORTS

indemnify Pacific Realty if Pacific Realty was ordered to pay
Livingston any damages for his injuries.
McGill Restoration filed a motion for summary judgment.
Because the contents of this motion are important to our ulti-
mate resolution of this case, we include the language of the
motion in its entirety:
COMES NOW the Defendant, McGill Restoration,
Inc., pursuant to neb. R ev. stat. § 25-1331, and moves
the Court for an order granting it summary judgment and
dismissing the Plaintiff’s Amended Complaint, and the
claims found therein, for the reason that the pleadings and
evidence to be submitted show that there is no genuine
issue as to any material fact and that defendant is entitled
to judgment as a matter of law.
Defendant further moves the Court for an order grant-
ing it summary judgment with regard to the cross-claim
filed by Defendant Pacific Realty against it for the reason
that the pleadings and evidence to be submitted show
that there is no genuine issue as to any material fact with
regard to this claim, and that therefore Defendant McGill
[Restoration] is entitled to judgment as a matter of law as
to the cross-claim as well.
In support of its motion, McGill Restoration submitted the
deposition of its president. Neither Livingston nor Pacific Realty
submitted any evidence in opposition to the motion.
The 	district 	court 	granted 	McGill 	Restoration’s 	sum-
mary judgment motion in part. The court granted McGill
Restoration’s motion as to Livingston, finding, “The benefits
received pursuant to the Nebraska Worker[s’] Compensation
Act 	are 	the 	sole 	remedy 	Livingston 	has 	against 	McGill
[Restoration] by virtue of this employer/employee relation-
ship.” The court overruled McGill Restoration’s motion as to
Pacific Realty’s cross-claim.
Additionally, 	the 	court 	considered 	Livingston’s 	claims
against Pacific Realty and concluded that “the claims against
Pacific [Realty] fail as a matter of law.” The court dismissed
Livingston’s 	claims 	against 	both 	McGill 	Restoration 	and
Pacific Realty.
LIVINGSTON v. PACIFIC REALTy COMMERCIAL 	15
Cite as 18 Neb. App. 13

Ultimately, the parties stipulated that the cross-claim filed
by Pacific Realty against McGill Restoration should be dis-
missed and the court entered a final order dismissing the case
in its entirety.
Livingston appeals here.
III. ASSIGNMENT OF ERROR
Livingston assigns, restated and consolidated, that the dis-
trict court erred in granting summary judgment to Pacific
Realty and dismissing his claims.
IV. STANDARD OF REVIEW
Summary judgment is proper where the facts are uncontro-
verted and the moving party is entitled to judgment as a matter
of law. In re Estate of Ronan, 277 Neb. 516, 763 N.W.2d 704
(2009); Unisys Corp. v. Nebraska Life & Health Ins. Guar.
Assn., 267 Neb. 158, 673 N.W.2d 15 (2004); Fontenelle Equip.
v. Pattlen Enters., 262 Neb. 129, 629 N.W.2d 534 (2001);
Mertz v. Pharmacists Mut. Ins. Co., 261 Neb. 704, 625 N.W.2d
197 (2001). 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, giving that
party the benefit of all reasonable inferences deducible from
the evidence. Thone v. Regional West Med. Ctr., 275 Neb. 238,
745 N.W.2d 898 (2008).
V. ANALySIS
[1] 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. State ex rel.
Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d 194
(2008); Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d
465 (2000). As a result of the significant effects of a summary
judgment, a party is entitled to notice of a motion for sum-
mary judgment and an opportunity to be heard and to offer
evidence in opposition to the motion.
Neb. Rev. Stat. § 25-1332 (Reissue 2008) provides that a
motion for summary judgment “shall be served at least ten
16 	18 NEBRASKA APPELLATE REPORTS

days before the time fixed for the hearing.” The Nebraska
Supreme Court has previously held that when the notice pro-
visions of the statute are not complied with and the party
opposing the motion does not have time to present evidence
to defend against the motion, it is error for the trial court to
consider the motion. See Curley v. Curley, 214 Neb. 780, 336
N.W.2d 103 (1983).
The Nebraska Supreme Court has also held that when a
motion to dismiss is converted into a motion for summary
judgment, the trial court must provide notice of the change
to the opposing party. The court has stated, “[W]hen receiv-
ing evidence that converts a motion to dismiss into a motion
for summary judgment, the trial court should give the parties
notice of the changed status of the motion and a reasonable
opportunity to present all material made pertinent to such
a motion.” Crane Sales & Serv. Co. v. Seneca Ins. Co., 276
Neb. 372, 376, 754 N.W.2d 607, 610 (2008). Accord Nebraska
Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
[2] Additionally, the court has held that a trial court may
not enter a summary judgment on an issue not presented by
the pleadings. See Slagle v. J.P. Theisen & Sons, 251 Neb.
904, 560 N.W.2d 758 (1997). When an issue is not presented
in a summary judgment motion, the opposing party does not
have notice to defend against the issue. See In re Freeholders
Petition, 210 Neb. 583, 316 N.W.2d 294 (1982) (holding that
where one party moves for partial summary judgment on cer-
tain issues only, other party should not be expected at hearing
on motion for summary judgment to present evidence on issues
as to which that motion does not apply).
In Slagle v. J.P. Theisen & Sons, supra, the trial court
granted summary judgment in favor of the defendants on the
issues of liability and the plaintiff’s contributory negligence.
On appeal, the plaintiff argued that the trial court erred in rul-
ing on the issue of contributory negligence when that issue was
not presented by the pleadings. The court stated:
We have stated unequivocally that a court may not enter
a summary judgment on an issue not presented by the
pleadings. . . . Neither [of the defendants’] motion[s] for
LIVINGSTON v. PACIFIC REALTy COMMERCIAL 	17
Cite as 18 Neb. App. 13

summary judgment requested a ruling by the trial court as
to [the plaintiff’s] alleged contributory negligence. Absent
such a reference in these pleadings, the trial court could
not and should not have ruled on this issue.
Id. at 909, 560 N.W.2d at 762 (citation omitted).
In this case, McGill Restoration was the only party to
file a motion for summary judgment. However, in ruling on
McGill Restoration’s motion for summary judgment, the dis-
trict court effectively granted summary judgment to both
McGill Restoration and Pacific Realty when it dismissed all
of Livingston’s claims as to both parties. Upon our review,
we conclude that McGill Restoration’s motion did not provide
adequate notice to Livingston that Pacific Realty’s liability
was an issue being raised at the summary judgment hearing.
Accordingly, we conclude that Livingston did not receive an
opportunity to offer evidence to defend his claims against
Pacific Realty.
In McGill Restoration’s motion for summary judgment, it
requested that the court grant it summary judgment as to
both Livingston’s claims and the cross-claim filed by Pacific
Realty. On its face, the motion does not provide any indication
that McGill Restoration was requesting summary judgment
on behalf of Pacific Realty. Rather, it appears that McGill
Restoration was acting only in its own behalf.
Moreover, 	it 	is 	clear 	from 	Livingston’s 	petition 	that
Livingston joined McGill Restoration as a party to the case
pursuant to § 48-118. Section 48-118 requires an employer
to be joined as a party when an employee who has received
workers’ compensation benefits files a claim against “a third
person [who] is liable to the employee . . . for the injury.” In
other words, Livingston joined McGill Restoration as a party
simply because McGill Restoration was entitled to subrogation
if Livingston recovered damages from Pacific Realty.
It does not appear that Livingston claims that McGill
Restoration should be liable for more damages than it had
already provided to Livingston due to Livingston’s workers’
compensation award. As such, we are somewhat puzzled by the
rationale behind McGill Restoration’s filing of the motion as
to Livingston.
18 	18 NEBRASKA APPELLATE REPORTS

Regardless of why McGill Restoration filed the motion,
however, the motion did not provide notice to Livingston that
he needed to offer evidence as to Pacific Realty’s liability.
Livingston’s claims against Pacific Realty constitute a separate
issue from Livingston’s relationship with McGill Restoration.
Pacific 	Realty’s 	liability 	was 	not 	raised 	in 	McGill
Restoration’s motion for summary judgment, and as such, the
district court erred in ruling on that issue.
VI. CONCLUSION
Because McGill Restoration’s motion for summary judg-
ment did not provide adequate notice to Livingston that Pacific
Realty’s liability was an issue being raised at the summary
judgment hearing, we reverse that part of the district court’s
order dismissing Livingston’s claims against Pacific Realty
and remand the matter for further proceedings consistent with
this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
the saLvation aRmy, appeLLant, v. James KyLe
and tina KyLe , husband and wife ,
and James eweRs , appeLLees.
778 N.W.2d 485
Filed September 15, 2009. 	No. A-08-1190.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
3. Property: Easements: Contracts. Where a wall is entirely upon the property
of one party, the right of an adjoining owner to have support therefrom, whether
SALVATION ARMy v. KyLE 	19
Cite as 18 Neb. App. 19