Dominguez v. Eppley Transp. Servs.

In Johnson v. State,30 we concluded that when a cause of
action is based on the mere fact of government employment,
such as a respondeat superior claim, or on the employment
relationship between the intentional tort-feasor and the gov-
ernment, such as a negligent supervision or negligent hiring
claim, such claim is barred by the PSTCA, and thus the state
is immune from suit. Clearly, McKenna’s cause of action for
excessive force arises out of the alleged false arrest by Julian,
acting within the scope of his employment. McKenna does not
plead any facts that would explain how Julian or the City of
Omaha would be liable without the connection of the employ-
ment relationship between the parties. Therefore, the City of
Omaha is protected by sovereign immunity.
CONCLUSION
The district court properly dismissed McKenna’s complaint
for lack of subject matter jurisdiction, because the claims for
which McKenna seeks relief are encompassed by the protec-
tions of the PSTCA.
A ffirmed.
30 Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
dOMINgUez v. ePPLey TrANSP. ServS. 	531
Cite as 277 Neb. 531
frAncisco dominguez , Appellee , v. eppley TrAnsporTATion
services , inc., A nebrAskA corporATion,
eT Al ., AppellAnTs.
763 N.W.2d 696
Filed April 3, 2009. 	No. S-08-408.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

4. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
5. Statutes: Appeal and Error. Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
6. Final Orders: Appeal and Error. Neb. rev. Stat. § 25-1912 (reissue 2008) does
not require that the final order be explicitly identified in the notice of appeal.
7. Fraud: States. Neb. rev. Stat. § 36-712 (reissue 2008) requires that the
Uniform Fraudulent Transfer Act be applied and construed in conformity with
other states.
8. Torts: Claims: Judgments: Damages. A person holding any disputed, contin-
gent, or unliquidated tort or contract claim has no right to enforce payment of
damages until a judgment enters against the defendant. Nonetheless, this does not
diminish the claim for payment of damages that the plaintiff asserts when filing a
lawsuit.
9. Debtors and Creditors: Judgments: Time: Parties. A debtor-creditor relation-
ship is created not by a judgment, but by the wrong which produces the injury;
and it is the date of the wrongful act, not the date of the filing of the suit or of
the judgment, which fixes the status and rights of the parties.
10. Conveyances: Fraud: Debtors and Creditors. Under Neb. rev. Stat. § 36-706(b)
(reissue 2008), a transfer is considered fraudulent when the transfer is made to
an insider for an antecedent debt, the debtor was insolvent at the time, and the
insider knew or reasonably should have known that the debtor was insolvent.
Appeal from the district Court for douglas County: gerAld
e. morAn, Judge. Affirmed.
david A. domina and Linda S. Christensen, of domina Law
group, P.C., L.L.O., for appellants.
W. 	Patrick 	Betterman, 	of 	Law 	Offices 	of 	W. 	Patrick
Betterman, for appellee.
H eAvicAn, 	c.J., 	WrigHT, 	connolly, 	gerrArd, 	sTepHAn,
mccormAck , and miller-lermAn, JJ.
H eAvicAn, c.J.
I. INTrOdUCTION
eppley Transportation Services, Inc. (eTSI), and Michael
J. Abbott and Andi Abbott appeal the decision of the douglas
County district Court granting summary judgment to Francisco
dominguez. dominguez had obtained a judgment in the U.S.
district Court for the district of Nebraska against Abbott
Transportation, Inc. (ATI), for employment discrimination. ATI
532 	277 NeBrASKA rePOrTS

subsequently transferred all of its assets to eTSI, a new corpo-
ration, and dominguez sought to enforce his judgment against
eTSI based on the doctrines of successor liability and fraudu-
lent conveyance, as well as the equitable principle of piercing
the corporate veil.
The district court granted summary judgment on the issue of
corporate successor liability and found that a conveyance made
from ATI to the Abbotts was fraudulent. eTSI and the Abbotts
contend the district court erred in granting summary judg-
ment on the issue of the fraudulent conveyance, but conceded
the issue of successor liability at oral arguments. dominguez
claims this court lacks jurisdiction to hear the appeal, because
eTSI and the Abbotts filed their appeal from a nonexistent
final order. We find this court does have jurisdiction over the
appeal, and we affirm the decision of the district court.
II. BACKgrOUNd
dominguez worked for ATI prior to 2003. ATI was incor-
porated in Nebraska in 1999 by the Abbotts (then known
as Michael J. Schmid and zorica Schmid), the sole share-
holders and directors. The Abbotts also own Abbott Parking,
Inc. (API), which owned a parking lot near eppley Airfield
in Omaha, Nebraska. ATI was formed to transport travelers
between the parking lot and the airport. The Abbotts were the
only officers, directors, and shareholders of ATI and API at all
relevant times.
dominguez 	filed 	a 	complaint 	in 	federal 	district 	court
against ATI for a “national origin” discrimination claim on
december 23, 2003. After the complaint was filed, ATI issued
a promissory note on August 20, 2004, in the amount of
$647,071.61, payable to the Abbotts, to memorialize the out-
standing loans the Abbotts had made to ATI over the course of
ATI’s existence.
On december 31, 2004, the Abbotts held a special meeting
of the board of directors and shareholders to determine how
to dispense of a debt of $119,038.59 owed to ATI by API.
Acting in their official capacities, the Abbotts transferred the
$119,039.59 receivable to themselves from API, to be offset
against the debt owed to them by ATI (the december 2004
dOMINgUez v. ePPLey TrANSP. ServS. 	533
Cite as 277 Neb. 531

transfer). ATI then issued a new promissory note to the Abbotts
in the amount of $544,538.32. The Abbotts followed corporate
formalities during their meeting, including memorializing the
minutes and filing corporate documents.
On May 27, 2005, after a jury trial, dominguez obtained a
judgment against ATI in federal district court for $79,479.22
plus interest, attorney fees, and costs. On August 11, the fed-
eral district court ruled that ATI would be entitled to a new
trial if dominguez did not agree to a remitted damages amount,
because there was insufficient evidence to support the amount
of lost wages awarded by the jury. The same day, ATI trans-
ferred all its assets to eTSI. The list of assets included five
vehicles, a camera, and a printer. The transfer was made in
consideration of eTSI’s assumption of the lien notes on three
of the vehicles and two loans.
The bill of sale is dated August 11, 2005, but eTSI’s articles
of incorporation were not filed until a week later. As with ATI
and API, the Abbotts were the only shareholders, officers,
and directors of eTSI. Although ATI ceased to do business in
August 2005, eTSI used the same vehicles to perform the same
service of shuttling passengers between the parking lot and the
airport, and eTSI employed essentially the same personnel.
API continued to operate as usual.
Shortly thereafter, dominguez accepted the remitted dam-
ages and the U.S. district Court entered an amended judgment
in favor of dominguez in the amount of $83,088.56, plus inter-
est from and after May 31, 2005. dominguez has been unable
to collect any part of the judgment.
On October 19, 2006, dominguez filed a complaint in
douglas County district Court against eTSI and the Abbotts,
alleging they were liable for the judgment entered against ATI.
dominguez later moved for summary judgment on all counts.
On March 14, 2008, the district court granted dominguez’
motion for summary judgment on the claims of successor
liability and fraudulent conveyance, but not on the issue of
piercing the corporate veil.
On April 4, 2008, dominguez moved to dismiss against
eTSI and the Abbotts the remaining claim of piercing the cor-
porate veil, which was not disposed of on summary judgment,
534 	277 NeBrASKA rePOrTS

and requested a final judgment. The district court granted the
motion and entered a final order 7 days later. eTSI and the
Abbotts filed a notice of appeal on April 14, citing a nonexis-
tent March 17, 2008, order.
III. ASSIgNMeNT OF errOr
After conceding the issue of corporate successor liability
during oral arguments, eTSI and the Abbotts assign as error
that the district court erred when it entered summary judgment
on dominguez’ fraudulent conveyance claim.
Iv. STANdArd OF revIeW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
[2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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.2
[3,4] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the bene-
fit of all reasonable inferences deducible from the evidence.3
When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.4
[5] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.5
1 Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
2 Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d 793
(2007).
3 Id.
4 Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).
5 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
dOMINgUez v. ePPLey TrANSP. ServS. 	535
Cite as 277 Neb. 531

v. ANALySIS
1. WHeTHer THis courT HAs JurisdicTion To H eAr cAse
We first address the issue of whether this court has jurisdic-
tion. dominguez has alleged this court does not have jurisdic-
tion, because eTSI and the Abbotts entered their notice of
appeal based on “the final Order entered by the district Court
of douglas County, Nebraska, on March 17, 2008 [sic] when
the district Court sustained the Plaintiff’s Motion for Summary
Judgment.” Summary judgment was granted on March 14,
2008, and the final order was entered on April 11. eTSI and
the Abbotts contend they are not required to identify the order
from which they appeal within the notice of appeal.
Neb. rev. Stat. § 25-1912 (reissue 2008) governs the filing
of an appeal. Section 25-1912(1) states:
The proceedings to obtain a reversal, vacation, or modifi-
cation of judgments and decrees rendered or final orders
made by the district court . . . shall be by filing in the
office of the clerk of the district court in which such
judgment, decree, or final order was rendered, within
thirty days after the entry of such judgment, decree, or
final order, a notice of intention to prosecute such appeal
signed by the appellant or appellants or his, her, or their
attorney of record . . . .
Section 25-1912(2) states that if a notice of appeal or docket
fee is filed “after the announcement of a decision or final order
but before the entry of the judgment, decree, or final order,”
it shall be treated as filed or deposited after the entry of the
final judgment.
[6] We have previously held that a notice of appeal filed
before a final order has been entered has no effect.6 That is
not the case here, however, because the notice of appeal was
filed on April 14, 2008, after the entry of the final order on
April 11. Section 25-1912 does not require that the final order
be explicitly identified. Furthermore, § 25-1912(2) states that
a notice of appeal filed after a final order is announced but
6 See Haber v. V & R Joint Venture, 263 Neb. 529, 641 N.W.2d 31 (2002).
536 	277 NeBrASKA rePOrTS

before entry of judgment will be considered to have been filed
after the entry of judgment. In this case, the notice of appeal
was filed within 30 days after entry of the final order. Although
the best practice would be to identify the correct final order of
judgment in the notice of appeal, the notice did comply with all
explicit statutory requirements. We therefore find that this court
has jurisdiction to decide the case.
2. TrAnsfer WAs frAudulenT
We next turn to eTSI and the Abbotts’ sole remaining claim.
eTSI and the Abbotts allege the district court erred in award-
ing summary judgment on dominguez’ fraudulent conveyance
claim. dominguez alleged that the december 2004 transfer made
from ATI to the Abbotts, repaying $119,039.59 of debt, was a
fraudulent conveyance under Nebraska’s Uniform Fraudulent
Transfer Act (UFTA), Neb. rev. Stat. §§ 36-701 to 36-712
(reissue 2008). The district court found the conveyance was
fraudulent as a matter of law under § 36-706(b). Judgment was
entered against the Abbotts personally under § 36-709(b)(1),
because they were “the first transferee[s] of the asset or the
person[s] for whose benefit the transfer was made.”
Section 36-706(b) states:
A transfer made by a debtor is fraudulent as to a creditor
whose claim arose before the transfer was made if the
transfer was made to an insider for an antecedent debt,
the debtor was insolvent at that time, and the insider
knew or reasonably should have known that the debtor
was insolvent.
There is no question that the Abbotts were insiders, that ATI
was insolvent, and that the Abbotts knew or reasonably should
have known that ATI was insolvent; however, the Abbotts
claim that the december 2004 transfer had no value and that
dominguez was not a present creditor, and that for those
reasons, dominguez did not have a claim at the time of the
december 2004 transfer.
(a) Transfers for value
eTSI and the Abbotts first claim that the transfer merely
involved “bookkeeping entries” and that nothing of value was
dOMINgUez v. ePPLey TrANSP. ServS. 	537
Cite as 277 Neb. 531

actually exchanged.7 Section 36-702(12) defines a transfer as
“every mode, direct or indirect, absolute or conditional, vol-
untary or involuntary, of disposing of or parting with an asset
or an interest in an asset, and includes payment of money,
release, lease, and creation of a lien or other encumbrance.”
Section 36-704(a) states that value “is given for a transfer
or an obligation if, in exchange for the transfer or obliga-
tion, property is transferred or an antecedent debt is secured
or satisfied.”
Although the Abbotts claim that no value was exchanged,
the record contradicts that assertion. ATI’s 2004 federal tax
return lists the debt due from API as an “other current asset”
at the beginning of the year, but not at the end of the year—
after the december 2004 transfer took place. Furthermore,
the Abbotts issued a new promissory note after the december
2004 transfer. The first promissory note, dated August 20,
2004, stated that the amount due from ATI to the Abbotts
was $647,071.61. The Abbotts then reissued the promissory
note for $544,538.32, after the december 2004 transfer. The
UFTA clearly states that value is exchanged when the transfer
is made to satisfy an antecedent debt. The first promissory
note establishes that there was an antecedent debt; the second
demonstrates that the december 2004 transfer was made to
secure part of that debt. Therefore, value was exchanged, and
a transfer was made.
(b) Present Claims
eTSI and the Abbotts next contend that dominguez did not
have a claim at the time of the december 2004 transfer, as
required by § 36-706(b). Under § 36-702(3), a claim is defined
as “a right to payment, whether or not the right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured.” Under § 36-702(5), a debt is defined as “liability
on a claim,” while under § 36-702(6), a debtor is defined as “a
person who is liable on a claim.”
7 Brief for appellants at 15.
538 	277 NeBrASKA rePOrTS

[7] The district court found that dominguez’ claim arose
at the time of ATI’s discriminatory conduct and that there-
fore, for purposes of § 36-706(b), dominguez was a present
creditor when the december 2004 transfer occurred. eTSI and
the Abbotts claim that dominguez did not have a “right to
payment” until the judgment was rendered in 2005. We cur-
rently do not have any case law regarding when a person with
a tort or other legal claim against another becomes a “credi-
tor” for purposes of the UFTA. However, § 36-712 requires
that the UFTA be applied and construed in conformity with
other states.
[8,9] Courts deciding this issue under the UFTA have held
that a “creditor” includes a person with unlitigated legal claims
against the debtor.8 In support of this decision, courts point
to the “‘whether or not the right is reduced to judgment’”
language contained in the definition of “claim.”9 “Certainly, a
person holding any disputed, contingent, or unliquidated tort
or contract claim has no right to enforce payment of damages
until a judgment enters against the defendant. Nonetheless, this
does not diminish the claim for payment of damages that the
plaintiff asserts when filing a lawsuit.”10 These courts have gen-
erally held that a “debtor-creditor relationship is created not by
a judgment, but by the wrong which produces the injury; and
it is the date of the wrongful act, not the date of the filing of
the suit or of the judgment, which fixes the status and rights of
the parties.”11
8 Sands v. New Age Family Partnership, Ltd., 897 P.2d 917 (Colo. App.
1995).
9 Id. at 921. See, also, Friedman v. Heart Inst. of Port St. Lucie, 863 So.
2d 189 (Fla. 2003); Gulf Insurance Co. v. Clark, 304 Mont. 264, 20 P.3d
780 (2001); Klingman v. Levinson, 114 F.3d 620 (7th Cir. 1997); U.S. v.
Brickman, 906 F. Supp. 1164 (N.d. Ill. 1995).
10 Sands, supra note 8, 897 P.2d at 921. See, e.g., Tolle v. Fenley, 132 P.3d
63 (Utah App. 2006); Friedman, supra note 9; Gulf Insurance Co., supra
note 9; Cox v. Hughes, 781 So. 2d 197 (Ala. 2000); Klingman, supra note
9; Brickman, supra note 9; Cook v. Pompano Shopper, Inc., 582 So. 2d 37
(Fla. App. 1991); Granberry v. Johnson, 491 So. 2d 926 (Ala. 1986).
11 Granberry, supra note 10, 491 So. 2d at 928.
dOMINgUez v. ePPLey TrANSP. ServS. 	539
Cite as 277 Neb. 531

[10] Based on the requirements of § 36-712 and the deci-
sions of other courts, we find that the district court did not
err when it found that dominguez had a claim at the time
the december 2004 transfer took place. Under § 36-706(b),
a transfer is considered fraudulent when the transfer is made
to an insider for an antecedent debt, the debtor was insolvent
at the time, and the insider knew or reasonably should have
known that the debtor was insolvent. The Abbotts have admit-
ted that ATI was insolvent at the time of the december 2004
transfer, and as the sole shareholders and directors of ATI,
the Abbotts were insiders and knew that ATI was insolvent
at the time of the december 2004 transfer. Finally, as previ-
ously mentioned, the december 2004 transfer was made to
secure an antecedent debt, as memorialized by the promis-
sory statements.
Under § 36-708(a)(1), dominguez is entitled to an avoidance
of the december 2004 transfer to the extent necessary to satisfy
his judgment. Section 36-709(b)(1) entitles the court to enter
judgment against “the first transferee of the asset,” which the
Abbotts were. In reviewing a summary judgment, an appellate
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.12 Having viewed the evidence in a light most favor-
able to eTSI and the Abbotts, we find that the district court
did not err in determining that the december 2004 transfer was
fraudulent as a matter of law, or in entering judgment against
the Abbotts personally. We therefore affirm the judgment of the
district court.
vI. CONCLUSION
We have determined we have jurisdiction of this case. We
did not address the issue of mere continuation, because that
was conceded by the Abbotts during oral arguments. After
reviewing the evidence in a light most favorable to eTSI
and the Abbotts, we also find that the december 2004 trans-
fer from ATI to the Abbotts was a fraudulent transfer as a
12 Hughes, supra note 2.
540 	277 NeBrASKA rePOrTS

matter of law under § 36-706(b), that value was exchanged,
and that dominguez had a prior claim. Under § 36-708(a)(1),
dominguez was entitled to an avoidance of the transfer, and
§ 36-709(b)(1) allowed the district court to enter judgment
against the Abbotts personally. We therefore affirm the judg-
ment of the district court.
A ffirmed.
dOMINgUez v. ePPLey TrANSP. ServS. 	541
Cite as 277 Neb. 531