Friday, April 27, 2007

Complaint to pierce corporate veil post judgment not res judicata as to defendant’s after verdict conduct; even though Plaintiff’s counsel almost let a summary judgment slip though. Ichtertz v. Orthopaedic Specialists of Neb., S-05-1000, 273 Neb. 466. Surgeon formerly practicing in Grand Island sued Dr Bainbridge and his professional corporation. The court directed a verdict favorable to Dr Bainbridge but hit his corporation with a judgment exceeding $600k. Later plaintiff sued Dr Bainbridge again seeking to pierce the corporation veil. The plaintiff alleged Dr Bainbridge diverted corporate assets after the jury verdict to make the plaintiffs judgment uncollectible. Nebraska Supreme Court reverses Hall County District Court dismissal of action, finding that complaint to pierce corporate veil alleged post judgment actions that were not res judicata from the first case. The Supreme Court notes that the plaintiff’s attorneys might have lost because they failed to object when the Hall County District court converted Dr Bainbridge’s 12b6 motion into a motion for summary judgment. Lucky for them, the Supreme Court doesn’t like summary judgments, even under the 2003 Nebraska rules of pleading. “(At the motion to dismiss hearing) the defendants offered into evidence the Exhibits (from the first trial that absolved Dr Bainbridge.) Ichtertz raised no objection to the offer. Ichtertz did not offer any exhibits after the district court asked his attorneys, and the parties were given time to submit briefs on the motion. Ichtertz now claims the court erred in converting the motion to dismiss into a motion for summary judgment by receiving evidence outside the pleadings. Ichtertz was given an opportunity to present evidence and did not do so. We cannot determine from the record before us whether Ichtertz raised before the lower court the issue of conversion of the motion to dismiss into a motion for summary judgment. However, whether the court erred in its procedure regarding the motion to dismiss is not decisive of the matter, and we decline to resolve the cause on that basis.”

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