FT - Vonseggern v. Willman (11/19/1993)

[Riser Adkisson LLP]

O. William Vonseggern v. Walter Willman et al.,
508 N.W.2d 261 (Neb. 11/19/1993)

SUPREME COURT OF NEBRASKA

No. S-91-800

1993.NE.663, 508 N.W.2d 261, 244 Neb. 565

November 19, 1993

O. WILLIAM VONSEGGERN, APPELLEE,

v.

WALTER H. WILLMAN ET AL., APPELLEES, AND SABRINA MARIE WILLIAMS, APPELLANT.

SYLLABUS BY THE COURT

1. Judgments: Appeal and Error. When deciding questions of law, an appellate court is obligated to
reach Conclusions independent of those reached by the trial court.

2. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of
evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those
instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in
admissibility of evidence.

3. Summary Judgment: Appeal and Error. 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 deducible from the evidence.

4. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions,
admissions, stipulations, and affidavits in the record 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.

5. Debtors and Creditors: Attachments: Jurisdiction. Jurisdiction over attachment proceedings
cannot be legitimately exercised unless the attaching creditor pursues substantially the essential
statutory requirements.

6. Attachments: Bonds: Jurisdiction. Since under the present statutory scheme no attachment shall
be issued without a bond, the requirement of a bond is jurisdictional.

7. Attachments. An attachment issued without proper statutory authority is void ab initio.

8. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a court which lacks subject
matter jurisdiction is void. It is the longstanding rule in Nebraska that such a void judgment may
be attacked at any time in any proceeding.

9. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no
genuine issue of material fact exists and must furnish sufficient evidence to demonstrate that the
moving party is entitled to judgment as a matter of law if the evidence presented for summary
judgment remains uncontroverted. After the moving party has shown facts entitling it to a judgment
as a matter of law, the opposing party has the burden to present evidence showing an issue of
material fact which prevents a judgment as a matter of law for the moving party.

Appeal from the District Court for Hall County: Joseph D. Martin, Judge.

Siegfried H. Brauer III, of Ross, Schroeder & Brauer, for appellant.

Gwyer Grimminger, John A. Wolf, and Arend R. Baack for appellees O. William VonSeggern, Walter H.
Willman, and Overland National Bank.

Hastings, C.j., Boslaugh, White, Caporale, Fahrnbruch, and Lanphier, JJ.

The opinion of the court was delivered by: Lanphier

LANPHIER, J.

The instant foreclosure action was initiated by the appellee O. William VonSeggern, who named as
defendants all those parties, including the appellant, Sabrina Marie Williams, having a purported
interest in certain real estate located in Hall County. Williams' interest resulted from an order
in another action granting her a prejudgment attachment on the parcel. That action, also in the
district court for Hall County, was a suit for invasion of privacy. The prejudgment attachment was
granted on the basis that the defendant in that action sought to transfer property to put it
beyond Williams' reach. The district court, in the course of granting VonSeggern's motion for
summary judgment in the instant foreclosure action, found that the prejudgment attachment in the
other suit was invalid, since it was issued without a bond. The court in the case at bar dismissed
Williams' cross-claim to set aside the mortgages in question as fraudulent conveyances. It is from
the order granting summary judgment that Williams appeals. We reverse, and remand for further
proceedings.

BACKGROUND

On May 3, 1989, Williams filed a petition alleging that Ronald L. Willman invaded her privacy by
photographing her through a two-way mirror when she was nude while tanning in a booth located in
his beauty salon. VonSeggern was Ronald Willman's attorney in the invasion of privacy action.

On May 18, 1989, Williams filed an application for attachment, alleging that Ronald Willman was
attempting to liquidate, transfer, or otherwise encumber his property holdings for the purpose of
placing his financial assets beyond the reach of Williams.

On May 19, 1989, Ronald Willman executed a $20,000 note in favor of VonSeggern and gave VonSeggern
a $20,000 mortgage to secure the note. On the same date, Ronald Willman also gave a $40,000
mortgage to Walter H. Willman and a $29,000 mortgage to Overland National Bank of Grand Island.

On June 2, 1989, the court ordered the attachment lien, but no bond was required or paid.

On April 30, 1991, VonSeggern initiated the present foreclosure action. Williams cross-claimed on
the basis that the mortgages were fraudulent conveyances. On June 28, VonSeggern moved for summary
judgment against Williams, asserting that her attachment lien was invalid for the reason that no
bond was paid pursuant to Neb. Rev. Stat. § 25-1003 (Reissue 1989). On the same date, Overland
National Bank made a like motion. On July 1, Walter Willman also filed a motion for summary
judgment. On August 14, the court granted summary judgment, finding the attachment lien invalid.
Williams' cross-claim was dismissed.

ASSIGNMENTS OF ERROR

Williams asserts that the district court erred in (1) finding that her attachment was invalid; (2)
dismissing her cross-claim for fraudulent conveyance; (3) failing to receive at the summary
judgment hearing exhibits 2 through 6, respectively: a statement of financial affairs for Ronald
Willman, a note from Ronald Willman to VonSeggern, a mortgage held by VonSeggern, a mortgage held
by Walter Willman, and a mortgage held by Overland National Bank; and (4) in overruling her motion
to strike allegations in VonSeggern's answer, Overland National Bank's answer, and Walter
Willman's answer.

STANDARD OF REVIEW

When deciding questions of law, this court is obligated to reach Conclusions independent of those
reached by the trial court. Bell Abstract & Title v. Caro, Inc., 243 Neb. 576, 500 N.W.2d 834
(1993).

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is
controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances
under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility
of evidence. Petska v. Olson Gravel, Inc., 243 Neb. 568, 500 N.W.2d 828 (1993); State v.
Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).

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 deducible from the evidence. Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal.,
243 Neb. 351, 500 N.W.2d 520 (1993).

Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations,
and affidavits in the record 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. Gould v. Orr, ante p. 163, 244 Neb. 163, 506 N.W.2d 349
(1993).

PREJUDGMENT ATTACHMENT

Necessity of Bond

Williams argues that the trial court erred in finding her prejudgment attachment invalid. She
asserts that the lack of a bond is not fatal to her attachment.

However, this court has held that a bond is a statutory requirement. In Vanburg v. Mauel, 131 Neb.
685, 686-87, 269 N.W. 626 (1936), we said:

Except where the ground of attachment is that the defendant is a foreign corporation or a
nonresident of the state, no order of attachment shall be issued until an undertaking is filed and
approved with one or more sufficient sureties to the effect that plaintiff will pay defendant all
damages resulting from a wrongful attachment.

It is widely accepted that jurisdiction over attachment proceedings cannot be legitimately
exercised unless the attaching creditor pursues substantially the essential statutory
requirements. See, Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 376 A.2d
60 (1977); Fletcher & Son v. Gordon, 219 Iowa 661, 259 N.W. 204 (1935); Jenkins v. First Nat. Bank
et al., 73 Mont. 110, 236 P. 1085 (1925); Winfree v. Mann, 154 Va. 683, 153 S.E. 837 (1930). That
is, the courts have no authority to attach property but that which has been granted them by
statute. See, Bain & Sons v. Mitchell, 82 Ala. 304, 2 So. 706 (1887); Stowe v. Matson, 94 Cal.
App. 2d 678, 211 P.2d 591 (1949); Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra;
Stalvey v. Varn Motors Finance Co., 56 Ga. App. 696, 193 S.E. 627 (1937); Fletcher & Son v.
Gordon, supra; Killen v. American Casualty, 231 Md. 105, 189 A.2d 103 (1963); Trinidad Asphalt
Mfg. Co. v. Standard Oil Co., 214 Mo. App. 115, 258 S.W. 64 (1924); Edwards v. Stein, 94 N.J. Eq.
251, 119 A. 504 (1923). Since in our statutory scheme no attachment shall be issued without a
bond, the requirement of a bond is jurisdictional. See Vanburg v. Mauel, supra. See, also, Martin
v. Schillo, 389 Ill. 607, 60 N.E.2d 392 (1945), cert. denied 325 U.S. 880, 65 S. Ct. 1572, 89 L.
Ed. 1996; Edwards v. Stein, supra. An attachment issued without proper statutory authority is void
ab initio. Stowe v. Matson, supra; Lunger v. Page, 16 N.J. Misc. 529, 2 A.2d 606 (1938).

The trial court, therefore, properly determined that this attachment, issued without a bond, a
statutory requirement, was invalid.

Plaintiff's Duty

Williams next contends that the lack of a bond was the trial court's error and that she should not
be penalized for the court's error. She contends that the language of § 25-1003 establishes
requirements for the presiding Judge, but not for the plaintiff. Although the language of § 25-
1003 is directed toward the presiding Judge, in Insurance Co. of North America v. Maxim's of
Nebraska, 178 Neb. 274, 276, 132 N.W.2d 885, 887 (1965), we stated:

Section 25-1003, R. R. S. 1943, after excepting foreign corporations and nonresidents of the state
specifically provides that, "In all other cases, the order of attachment shall not be issued by
the clerk . . ." until a bond has been filed as provided therein. We think that it was the
legislative intent, when the statute required the plaintiff to comply with the provisions of the
general statute on attachment as to necessary allegations, that it must have therefore also
intended that it [the plaintiff] comply with the bond provisions of section 25-1003, R. R. S.
1943. These statutes are a part of a comprehensive act. This interpretation harmonizes the meaning
of the statutes, gives consistency to them, and achieves the clear legislative purpose of
consistent protection for all of the defendant's property from wrongful attachment.

Complying with the statutory requirements, therefore, was Williams' obligation.

Collateral Contests

Williams next contends that even if the attachment was invalid, the other parties should not have
been allowed to contest its validity. Williams asserts that since Ronald Willman did not object to
the lack of a bond at the attachment hearing, he was estopped from later raising that issue. With
regard to VonSeggern, Overland National Bank, and Walter Willman, Williams argues that they lack
standing to contest the validity of the attachment.

Since, as established above, the lack of a bond is a jurisdictional defect we are confronted with
the issue of when a jurisdictional defect in a prejudgment attachment can be raised, and by whom.

A judgment entered by a court which lacks subject matter jurisdiction is void. Marshall v.
Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992). Also, it is the longstanding rule in Nebraska that
such a void judgment may be attacked at any time in any proceeding. Id. ; Drennen v. Drennen, 229
Neb. 204, 426 N.W.2d 252 (1988); Lammers Land & Cattle Co. v. Hans, 213 Neb. 243, 328 N.W.2d 759
(1983) . It may be impeached in any action, direct or collateral. Marshall v. Marshall. supra;
Stanton v. Stanton, 146 Neb. 71, 18 N.W.2d 654 (1945); Hassett v. Durbin, 132 Neb. 315, 271 N.W.
867 (1937). See, also, Shade v. Kirk, 227 Neb. 775, 420 N.W.2d 284 (1988). That is because a void
judgment is in reality no judgment at all. Marshall v. Marshall, supra. The collateral attack in
this action was proper.

The court, therefore, also properly refused to strike those portions of VonSeggern's, Overland
National Bank's, and Walter Willman's answers which raised the invalidity of Williams' attachment.

ADMISSIBILITY OF EXHIBITS

Williams argues that the trial court erred in sustaining an objection to and in declining to
receive her offered exhibits 2 through 6, respectively: a statement of financial affairs for
Ronald Willman filed in the U.S. Bankruptcy Court for the District of Colorado, a note from Ronald
Willman to VonSeggern, a mortgage held by VonSeggern, a mortgage held by Walter Willman, and a
mortgage held by Overland National Bank. The record reveals that when exhibits 2 through 6 were
offered, opposing counsel objected on grounds of relevance. The following then transpired
regarding exhibits 3 through 6:

THE COURT: Well, of course they're in the file, the court would take notice of them anyway. I
don't know what you're going to offer them as exhibits for.

[Appellant's counsel] : I just want the court to be aware of where they're at and what they are.

THE COURT: The court is already aware of them.

Given that exhibits 3 through 6 were already contained in the court file as part of the pleadings,
these exhibits were properly excluded.

Opposing counsel repeated the objection on grounds of relevance to exhibit 2, Ronald Willman's
bankruptcy filing. In her brief, Williams concedes that exhibit 2 does not directly address the
issues raised in the motions for summary judgment. Williams suggests that exhibit 2 is relevant in
that it explains why Ronald Willman never objected to the lack of a bond. However, since the lack
of a bond is a jurisdictional defect, which can be raised at any time, Ronald Willman's failure to
object is irrelevant. (See preceding Discussion entitled "Collateral Contests.") Thus, exhibit 2
was properly excluded.

SUMMARY JUDGMENT

Finally, Williams contends that the court erred in granting summary judgment on her cross-claim.
She claims there were genuine issues of material fact yet to be addressed.

A party moving for summary judgment has the burden to show that no genuine issue of material fact
exists and must furnish sufficient evidence to demonstrate that the moving party is entitled to
judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted.
After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing
party has the burden to present evidence showing an issue of material fact which prevents a
judgment as a matter of law for the moving party. Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal.,
243 Neb. 351, 500 N.W.2d 520 (1993).

The only evidence offered by the moving parties was exhibit 1, which contained copies of some of
the pleadings from Williams' underlying invasion of privacy action against Ronald Willman. If
anything, these pleadings tend to establish that there are genuine issues of material fact
relevant to Williams' fraudulent conveyance claim. Moreover, the court took notice of a note from
Ronald Willman to VonSeggern, a mortgage held by VonSeggern, a mortgage held by Walter Willman,
and a mortgage held by Overland National Bank, all dated after notice of the application for
attachment had been delivered and before the order of attachment was signed.

The parties moving for summary judgment against the cross-claim that the mortgages were fraudulent
conveyances did not furnish any evidence to demonstrate that they were entitled to judgment as a
matter of law. They merely established that the prejudgment attachment was invalid. The lack of a
prejudgment attachment, alone, is not enough to resolve all the issues of fact involved in
Williams' cross-claim. Even without the prejudgment attachment, Williams is still a creditor under
the Uniform Fraudulent Transfer Act, Neb. Rev. Stat. § 36-701 et seq. (Cum. Supp. 1992). She is
therefore in a position to claim that the conveyances that Ronald Willman made were fraudulent as
to her. The moving parties did not carry their burden of establishing that they were entitled to
judgment as a matter of law on Williams' cross-claim. The court therefore erred in granting
summary judgment on such cross-claim.

We therefore reverse, and remand for further proceedings.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

SHANAHAN, J., not participating.