Walz v. Harvey , 28 Neb. Ct. App. 7 ( 2020 )

Nebraska Supreme Court Online Library
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01/28/2020 09:05 AM CST
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
Michael J. Walz, appellant, v. Jeffrey
Harvey and Spence Counseling,
LLC, appellees.
___ N.W.2d ___
Filed January 28, 2020. No. A-18-1109.
1. Limitations of Actions: Appeal and Error. The point at which a statute
of limitations begins to run must be determined from the facts of each
case, and the decision of the district court on the issue of the statute of
limitations normally will not be set aside by an appellate court unless
clearly wrong.
2. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
the facts and that the moving party is entitled to judgment as a matter
of law.
3. ____: ____. 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, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
4. Limitations of Actions. The period of limitations begins to run upon the
violation of a legal right, that is, when an aggrieved party has the right
to institute and maintain suit.
5. ____. The 1-year discovery exception of Neb. Rev. Stat. § 25-222
(Reissue 2016) is a tolling provision, but it applies only in those cases
in which the plaintiff did not discover and could not have reasonably
discovered the existence of the cause of action within the applicable
statute of limitations.
6. ____. Under the discovery principle, discovery occurs when the party
knows of facts sufficient to put a person of ordinary intelligence and
prudence on inquiry which, if pursued, would lead to the discovery of
facts constituting the basis of the cause of action.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
7. Limitations of Actions: Words and Phrases. “Discovery,” in the con-
text of statutes of limitations, refers to the fact that one knows of the
existence of an injury and not that one has a legal right to seek redress.
8. Limitations of Actions. It is not necessary that the plaintiff have knowl-
edge of the exact nature or source of the problem, but only knowledge
that the problem existed.
9. ____. The point at which a statute of limitations begins to run is deter-
mined from the specific facts of each case.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
William D. Gilner for appellant.
Joseph S. Daly and Mary M. Schott, of Sodoro, Daly &
Shomaker, P.C., L.L.O., for appellee Jeffrey Harvey.
Lisa M. Meyer, of Pansing, Hogan, Ernst & Bachman,
L.L.P., for appellee Spence Counseling, LLC.
Pirtle, Riedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Michael J. Walz appeals from an order of the district
court for Douglas County in which the court sustained the
motions for summary judgment of Jeffrey Harvey and Spence
Counseling, LLC (appellees), and dismissed Walz’ complaint,
finding that Walz’ professional negligence claim was barred
by the statute of limitations. Based on the reasons that follow,
we affirm.
BACKGROUND
Harvey is a licensed mental health practitioner who, at all
times relevant, was employed by Spence Counseling. Harvey
provided counseling services from February 2009 to August
31, 2011, to Walz; Walz’ then-wife, Alison Walz; and their chil-
dren. Some of the counseling consisted of marriage counseling
for Walz and Alison. Walz and Alison separated in October
2013 and were divorced in March 2014.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
On December 1, 2016, Walz filed a complaint against appel-
lees alleging Harvey was professionally negligent during the
time he provided counseling services to Walz. The complaint
alleged, incorrectly as it turned out following discovery, that
the counseling took place between November 10, 2010, and
December 2, 2014. The complaint included an allegation
that Harvey had entered into a romantic relationship with
Alison during the time that Harvey was counseling Walz and
his family.
Appellees filed motions for summary judgment alleging
that Walz’ claims were barred by the statute of limitations. At
the hearing on the motions, Walz offered his affidavit which
stated that he did not discover the professional negligence until
January 2016. The court found that there was a genuine issue
of material fact on this issue, and it concluded that his state-
ment in his affidavit as to when he “‘discovered’” the “‘profes-
sional negligence’” precluded summary judgment. The court
noted that it was possible that further discovery would shed
additional light as to when Walz knew of facts surrounding his
treatment by appellees sufficient to put a person of ordinary
intelligence and prudence on inquiry which, if pursued, would
lead to the discovery of facts constituting the basis for the
cause of action.
Following further discovery, appellees renewed their motions
for summary judgment, arguing that the evidence now showed
that Walz’ claims were barred by the statute of limitations.
At the hearing on the motions, Walz’ deposition was entered
into evidence. Walz testified that his counseling with Harvey
actually ended in August 2011 and that the dates set forth in
his complaint and his answers to interrogatories as to when
counseling ended were not accurate. He testified that in the
fall of 2014, 3 years after the last counseling session provided
by Harvey, Walz learned from his children that Harvey and
Alison were dating. Walz testified that he was not alleging that
Harvey and Alison were dating during the time that Harvey
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
was providing counseling from Harvey, even though his com-
plaint alleged otherwise. He testified he had no evidence or
any reason to believe that Harvey and Alison were dating prior
to August 2014.
At the hearing, appellees also offered into evidence Walz’
responses to Spence Counseling’s requests for production
of documents, which included a video recording of Walz’
confronting Harvey on December 11, 2014, accusing him
of acting inappropriately in his role as a counselor. Among
other things, Walz told Harvey: “Remember in the counsel-
ing room you said the experts say you should not get into a
serious relationship for . . . 2 years . . . you broke that rule of
yours”; “divorce counselors and psychologists have said you
are out of line”; “just you wait, you have no idea what’s going
on . . . your whole little world is not what it’s going to be”;
“it’s all going to fall apart”; “you broke your rule, you broke
your word”; and “something was going on in that counseling
room.” The encounter became physical and the 911 emer-
gency dispatch service was called. Harvey received a citation
for assault.
The evidence also showed that in mid-December 2014,
Walz called Charles Spence at Spence Counseling and asked
to meet with him. The two met a couple days later, and
Walz informed Spence that Harvey had assaulted him and
that Harvey was dating Alison. Spence told Walz that it was
inappropriate and not acceptable behavior for a counselor
to be dating a former client. After the meeting between
Walz and Spence, Spence Counseling terminated Harvey’s
employment.
Walz further testified in his deposition that in January and
February 2016, he had conversations with Tim Egan, a friend
and former attorney, about issues he was having with his son
and about restraining orders that had been filed against him.
During these discussions, Egan advised Walz that he might
have a cause of action against Harvey.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
At the hearing on the renewed motions for summary judg-
ment, Walz requested that he be granted leave to submit an
affidavit from his expert witness, Dr. Ellen Stein, a psycholo-
gist, and the court allowed him to do so. At a subsequent hear-
ing, the court received the affidavit from Stein into evidence
subject to ruling on written objections to portions of the affi-
davit made by appellees.
In the court’s amended order, it sustained the appellees’
objections to portions of Stein’s affidavit. The court also
granted the motions for summary judgment finding that the
undisputed facts showed that Walz’ cause of action against
appellees was barred by the statute of limitations.
ASSIGNMENTS OF ERROR
Walz assigns that the trial court erred in (1) granting appel-
lees’ renewed motions for summary judgment and (2) sustain-
ing appellees’ objections to statements in Stein’s affidavit.
STANDARD OF REVIEW
[1] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the district court on the issue of the statute of limita-
tions normally will not be set aside by an appellate court unless
clearly wrong. Colwell v. Mullen, 301 Neb. 408, 918 N.W.2d
858 (2018).
[2,3] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law. See Marshall v. Eyecare Specialties, 293 Neb.
91, 876 N.W.2d 372 (2016). In reviewing a summary judg-
ment, we view the evidence in the light most favorable to the
party against whom the judgment was granted, and give that
party the benefit of all reasonable inferences deducible from
the evidence. Id.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
ANALYSIS
Statute of Limitations.
Walz first assigns that the trial court erred in granting appel-
lees’ renewed motions for summary judgment on the ground
that his claims were barred by the statute of limitations.
[4] Walz’ action against appellees alleged professional neg-
ligence and is therefore governed by the statute of limitations
set forth in Neb. Rev. Stat. § 25-222 (Reissue 2016). The
statute provides that the statute of limitations for professional
negligence is 2 years after the alleged act or omission in ren-
dering or failure to render professional services providing the
basis for the action. The period of limitations begins to run
upon the violation of a legal right, that is, when an aggrieved
party has the right to institute and maintain suit. Behrens v.
Blunk, 284 Neb. 454, 822 N.W.2d 344 (2012). Walz admitted
in his deposition that his last counseling session with Harvey
was August 31, 2011. He also testified that the negligent acts
committed by Harvey during his counseling sessions consisted
of Harvey’s giving Alison “a book called Why Christian Men
Hate Women” and bringing up Bible scriptures that were
“inappropriate and misused.” Walz clarified at oral argument
that it was these acts of “grooming” during counseling that
constituted the professional negligence acts upon which his
complaint was based. Therefore, as the trial court found, the
2-year statute of limitations expired on August 31, 2013, unless
an exception applied.
The language of § 25-222 provides for a discovery exception
to the statute of limitations
if the cause of action is not discovered and could not be
reasonably discovered within such two-year period, then
the action may be commenced within one year from the
date of such discovery or from the date of discovery of
facts which would reasonably lead to such discovery,
whichever is earlier . . . .
[5-7] The Nebraska Supreme Court has said that the 1-year
discovery exception of § 25-222 is a tolling provision, but
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
that it applies only in those cases in which the plaintiff did
not discover and could not have reasonably discovered the
existence of the cause of action within the applicable statute of
limitations. See Behrens v. Blunk, supra. Under the discovery
principle, discovery occurs when the party knows of facts suf-
ficient to put a person of ordinary intelligence and prudence
on inquiry which, if pursued, would lead to the discovery of
facts constituting the basis of the cause of action. Gordon v.
Connell, 249 Neb. 769, 545 N.W.2d 722 (1996). “Discovery,”
in the context of statutes of limitations, refers to the fact that
one knows of the existence of an injury and not that one has a
legal right to seek redress. Id.
[8,9] It is not necessary that the plaintiff have knowledge of
the exact nature or source of the problem, but only knowledge
that the problem existed. Behrens v. Blunk, supra; Board of
Regents v. Wilscam Mullins Birge, 230 Neb. 675, 433 N.W.2d
478 (1988). The point at which a statute of limitations begins
to run is determined from the specific facts of each case. See
Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519
N.W.2d 530 (1994).
Walz argues that he could not and did not discover Harvey’s
negligence until January 2016 when Egan told him he might
have a claim against Harvey. He contends, therefore, that he
had until January 2017 to file his complaint and that his com-
plaint filed on December 1, 2016, was timely under the discov-
ery exception to § 25-222.
The trial court determined that the evidence established that
Walz had sufficient information to discover his cause of action
by December 11, 2014, at the latest. We agree. Walz’ children
told him in the fall of 2014 that Harvey was romantically
involved with Alison. The recorded conversation between Walz
and Harvey on December 11 also indicates that Walz believed
Harvey’s relationship with Alison was inappropriate, based on
Harvey’s prior role as Walz and Alison’s marriage counselor.
During the confrontation, Walz said to Harvey: “Remember in
the counseling room you said the experts say you should not
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
get into a serious relationship for . . . 2 years . . . you broke
that rule of yours”; “divorce counselors and psychologists
have said you are out of line”; “just you wait, you have no
idea what’s going on . . . your whole little world is not what
it’s going to be”; “it’s all going to fall apart”; “you broke your
rule, you broke your word”; and “something was going on in
that counseling room.”
In addition, in December 2014, Walz met with Spence and
informed him that Harvey had assaulted him and that Harvey
was dating Alison. Spence told Walz that it was inappropri-
ate and not acceptable behavior for a counselor to be dating a
former client.
As the trial court found, the undisputed evidence shows that
in the fall of 2014 or by December 11, 2014, at the latest,
[Walz] was aware of facts that put him on notice that
he may have a cause of action against [appellees]. . . .
[Walz] may not have known exactly what his specific
claim might be but what [Walz] knew on December 11,
2014 triggered the discovery statute of limits [sic] and
[Walz] then had one year in which to file his malpractice
cause of action against [appellees]. [Walz] did not file his
lawsuit until December 1, 2016, almost two years after he
was aware that divorce counselors and psychologists said
that Harvey was out of line.
In light of the undisputed evidence set forth above, no real
issue of fact could be said to exist as to the date on which
Walz discovered facts sufficient to put a person of ordinary
intelligence and prudence on inquiry which, if pursued, would
lead to the discovery of facts constituting the basis of his cause
of action. See Grand Island School Dist. #2 v. Celotex Corp.,
203 Neb. 559, 566, 279 N.W.2d 603, 608 (1979) (affirming
grant of summary judgment on basis of statute of limitations
because “no real issue of fact could be said to exist” as to date
on which plaintiff could have discovered defects). Accordingly,
because the statute of limitations based on the discovery excep-
tion ran on December 11, 2015, Walz’ professional negligence
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
action filed on December 1, 2016, is barred by the statute of
limitations. The trial court did not err in granting appellees’
renewed motions for summary judgment.
Objections to Stein’s Affidavit.
Walz next assigns that the trial court erred in sustaining
appellees’ objections to paragraphs 6, 7, 9, 10, and 11 in
Stein’s affidavit. Stein’s affidavit stated she is a forensic and
clinical psychologist from California. She interviewed Walz
in person and reviewed the records of his counseling with
Harvey. Paragraph 6 states: “[Walz] reported that he did not
discover his injuries and damages until January 2016 after
speaking to his friend . . . Egan.” Paragraph 7 states that
“[Walz’] cause of action against [appellees] in this case was
not, and could not have reasonably been discovered within two
years of his treatment with [appellees].” Paragraphs 9 through
11 state as follows:
9. [Walz], as a layperson, trusted . . . Harvey to provide
appropriate counseling . . . . As a patient, [Walz] did what
his counselor said. He believed that . . . Harvey, as his
counselor, knew best.
10. [Walz] did not have the knowledge or training to
know what would have been appropriate or inappropriate
at the time counseling services were provided by [appel-
lees], and whether [appellees’] conduct amounted to pro-
fessional negligence.
11. [Walz] did not realize his injuries and damages
at the time he was receiving professional services from
[appellees].
Appellees objected to paragraph 6 on the basis of hear-
say and relevancy and to paragraphs 7, 9, 10, and 11 on the
ground that such statements were opinions and conclusions
of when Walz discovered his cause of action and not allega-
tions of ultimate fact. Whether wrongfully excluded or not,
the paragraphs objected to have no relevance to the 1-year
discovery principle upon which we base our resolution of the
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
WALZ v. HARVEY
Cite as 28 Neb. Ct. App. 7
case. Walz’ discovery of the relationship between Harvey and
Alison in 2014 put him on notice of his claim as a matter of
law. The paragraphs objected to either relate to the 2-year
statute of limitations—making them irrelevant—or are con-
clusory statements as to when Walz discovered his injuries
and damages. What Walz knew or should have known during
the first 2 years would not change the outcome, nor would it
have mattered whether he should have known he had a cause
of action, because that is not the test. See Gordon v. Connell,
249 Neb. 769, 545 N.W.2d 722 (1996) (discovery occurs when
party knows of facts sufficient to put person of ordinary intel-
ligence and prudence on inquiry which, if pursued, would lead
to discovery of facts constituting basis of cause of action).
Accordingly, because the paragraphs objected to have no rele-
vance to the 1-year discovery principle, we need not determine
whether they were wrongfully excluded.
CONCLUSION
Walz’ professional negligence claim is barred by the statute
of limitations set forth in § 25-222. Accordingly, the trial court
did not err in sustaining appellees’ motions for summary judg-
ment and dismissing Walz’ complaint with prejudice.
Affirmed.