DeNourie & Yost Homes, LLC v. Frost

Printer-friendly versionPrinter-friendly versionPDF versionPDF version

DeNourie & Yost Homes, LLC v. Frost

Case Number
S-16-0014
Call Date
January 5, 2017
Court Number
Douglas
Case Summary

S-16-0014 DeNourie & Yost Homes, LLC (Appellant) v. Joe Frost and Amy Frost and Security State Bank d/b/a Dundee Bank

Douglas County, Judge Gary B. Randall

Attorneys: Christopher J. Tjaden, Michael J. Whaley, Adam J. Wachal (Gross & Welch PCLLO) (for Dundee Bank) --- Jerrold L. Strasheim (for Appellant) --- Kristopher J. Covi, Jay D. Koehn (McGrath North Mullin & Kratz PCLLO)

Civil: Civil conspiracy

Proceedings below: This case was previously before the Supreme Court. See deNourie & Yost Homes, LLC v. Frost, 289 Neb. 136 (2014) (reversed and remanded). After remand, the Frosts moved for summary judgment on Appellant's fraud and civil conspiracy claims. The motion was granted.

Issues: The district court erred in: 1. Failure to correctly apply the law-of-the-case in accordance with the mandate of this court including the opinion of this court referenced thereby. 2. Failure to apply the Rule of Waiver under which Defendants waived the defense of election of remedies by not raising it in the earlier appeal. 3. Granting Defendants' summary judgment on theory of election of remedies and dismissing Appellant's fraud and civil conspiracy defenses although defense of election of remedies was never pled. 4. Failing to hold that election of remedies, if applicable, comes into play after trial. 5. Failing to hold that the purported confession of judgment was not an election of remedies. 6. Failing to recognize that the purported confession of judgment was not entitled to be treated as a judgment with respect to merger and bar. 7. Granting Defendants' summary judgment and dismissing Plaintiffs fraud and civil conspiracy claims without any evidence, any new evidence or without both. 8. Granting Appellee Dundee Bank summary judgment even though it had not filed a motion for summary judgment or followed the statutes providing for summary judgment. 9. Denying D&Y their right to a trial on D&Y's fraud and civil conspiracy claims, denying D&Y due process with respect to such claims or denying both a right to trial or due process.