Gonzalez v. Union Pacific RR. Co.

filed in a case that the parties had been contemplating.16 Here,
Kari knew that Elizabeth intended to file the voluntary appear-
ance with the dissolution petition, which she filed the next day.
We conclude that the voluntary appearance waived service and
thus the court had jurisdiction. We affirm.
A ffirmed.
16 See, e.g., Adair, supra note 13.
mAnuelA domingo gAspAr gonzAlez , individuAlly
And As personAl representAtive of the estAte of
efrAin rAmos-domingo, deceAsed, AppellAnt, v.
union pAcific rAilroAd compAny, Appellee .
803 N.W.2d 424
Filed August 19, 2011. 	No. S-10-115.
1. Motions to Dismiss: Appeal and Error. An appellate court reviews a district
court’s order granting a motion to dismiss de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing a dismissal
order, an appellate court accepts as true all the facts which are well pled and the
proper and reasonable inferences of law and fact which may be drawn therefrom,
but not the pleader’s conclusions.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure
to state a claim, the pleader must allege sufficient facts, accepted as true, to state
a claim to relief that is plausible on its face.
4. Actions: Evidence: Pretrial Procedure. In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the factual allegations,
taken as true, are nonetheless plausible if they suggest the existence of the ele-
ment and raise a reasonable expectation that discovery will reveal evidence of the
element or claim.
5. Damages: Pleadings: Proof. One who seeks to avoid the legal effect of a release
of a claim for damages has the burden of pleading and proving the facts which
entitle such party to relief.
6. Contracts: Fraud. In the absence of fraud, one who signs an instrument without
reading it, when one can read and has had the opportunity to do so, cannot avoid
the effect of one’s signature merely because one was not informed of the contents
of the instrument.
7. Releases: Fraud. A release of a claim for relief should not be upheld if
fraud, deceit, oppression, or unconscionable advantage is connected with the
transaction.
8. Releases: Fraud: Intent. If a releasor was under a misapprehension, not due
to his or her own neglect, as to the nature or scope of the release, and if this
gONzAlEz v. uNION pAcIFIc rr. cO. 	47
cite as 282 Neb. 47
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

misapprehension was induced by the misconduct of the releasee, then the release,
regardless of how comprehensively worded, is binding only to the extent actu-
ally intended by the releasor. The release, to the extent it purports to release
claims other than any understood by the releasor to be included, is ineffective to
that extent.
9. Fraud: Words and Phrases. Overreaching, which is closely related to fraud, is
the result of an inequality of bargaining power or other circumstances in which
there is an absence of meaningful choice on the part of one of the parties.
10. Releases: Fraud. In circumstances affording an opportunity for overreaching, the
law demands good faith on the part of a releasee and a full understanding on the
part of the person injured as to his or her legal rights.
11. Pleadings: Appeal and Error. An appellate court reviews a district court’s deci-
sion on a motion for leave to amend a complaint for an abuse of discretion.
12. ____: ____. A district court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad faith on the part of
the moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
13. ____: ____. It is an abuse of discretion for the district court to dismiss a suit on
the basis of the original complaint without first considering and ruling on a pend-
ing motion to amend.
14. Rescission: Consideration: Words and Phrases. Tender or return of consid-
eration is only a condition precedent in a case where rescission is by act of the
party—a legal rescission. Tender or return is not a condition precedent in a case
involving equitable rescission—an action to obtain a decree of rescission.
15. Rescission: Consideration: Fraud. A rescinding party is not required to tender
or return consideration when the ground for rescission is fraud in the execution
as opposed to fraud in the inducement.
16. Contracts: Releases: Consideration: Fraud. When a settlement or release is
merely voidable, due to fraud in the inducement, the consideration should be
tendered or returned as a condition precedent to maintaining an action on the
original claim. But in a case of fraud in the execution, because there never was a
contract or release, tender or return of the consideration is not required.
17. Rescission: Consideration: Fraud. While the power of a party to avoid a trans-
action for fraud or misrepresentation may be conditioned on an offer to return the
consideration received, a failure to do so does not preclude avoidance if the con-
sideration is merely money paid, the amount of which can be credited in partial
cancelation of the injured party’s claim, or constitutes a comparatively small part
of the whole consideration.
18. Rescission: Consideration: Equity. The rule requiring tender or return of
consideration is not absolute, is not to be strictly construed where restoration is
impossible, and is to be applied in accordance with equitable principles.
19. Releases: Consideration: Fraud. A release procured by fraud will be set aside,
without tender or return of the consideration, when the releasor, because of
conditions of poverty, is unable to meet the tender-or-return requirement and the
48 	282 NEBrASKA rEpOrTS

fraud remained undiscovered until after the consideration had been expended or
otherwise put beyond the releasor’s control.
20. Rescission: Fraud: Time. A party seeking rescission of a contract on the grounds
of fraud, misrepresentation, or business coercion must do so promptly upon the
discovery of the facts giving rise to the right to rescind.
21. Rescission: Fraud: Duress: Time. Whether one seeking to rescind a contract
on the ground that it was procured by fraud or duress has acted with reasonable
promptness is ordinarily a question of fact.
22. Rescission: Time: Equity. A delay in seeking to rescind a contract is unreason-
able only if a litigant has been guilty of inexcusable neglect and, during the lapse
of time, circumstances have changed such that permitting rescission would work
inequitably to the disadvantage or prejudice of the other party.
23. Summary Judgment: Appeal and Error. 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, giving that party the benefit of all reasonable
inferences deducible from the evidence.
24. Fraud: Judgments. The existence of a fiduciary duty and the scope of that duty
are questions of law for a court to decide.
25. Fraud: Pleadings. The allegation of the existence of a confidential or fiduciary
relationship is a legal conclusion only and insufficient to raise any issue of fact.
26. Fraud: Words and Phrases. A fiduciary duty arises out of a confidential rela-
tionship which exists when one party gains the confidence of the other and pur-
ports to act or advise with the other’s interest in mind.
27. Fraud: Undue Influence: Equity. In a confidential or fiduciary relationship in
which confidence is rightfully reposed on one side and a resulting superiority
and opportunity for influence are thereby created on the other, equity will scruti-
nize the transaction critically, especially where age, infirmity, and instability are
involved, to see that no injustice has occurred.
28. Fraud: Undue Influence. Superiority of bargaining power alone does not create
a fiduciary duty, because there must also be an opportunity to exercise undue
influence.
29. Pretrial Procedure: Appeal and Error. Decisions regarding discovery are
directed to the discretion of the trial court, and will be upheld in the absence of
an abuse of discretion.
30. Courts: Evidence: Trade Secrets. The law gives trial courts broad latitude to
grant protective orders to prevent disclosure of materials for many types of infor-
mation, including, but not limited to, trade secrets or other confidential research,
development, or commercial information.
31. Rules of the Supreme Court: Pretrial Procedure. Neb. ct. r. Disc. § 6-326(c)
confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.
32. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the
amount of the fee is addressed to the trial court’s discretion, and its ruling will
not be disturbed on appeal absent an abuse of discretion.
gONzAlEz v. uNION pAcIFIc rr. cO. 	49
cite as 282 Neb. 47

33. Attorney Fees: Pretrial Procedure. Attorney fees are a permissible sanction for
a discovery violation.
Appeal from the District court for colfax county: mAry
c. gilbride, Judge. Affirmed in part, reversed and remanded
in part for further proceedings, and in part remanded with
directions.
Maren lynn chaloupka, of chaloupka, Holyoke, Hofmeister,
Snyder & chaloupka, and Horacio J. Wheelock, of law Office
of Horacio Wheelock, for appellant.
Mark E. Novotny, of lamson, Dugan & Murray, l.l.p., for
appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
gerrArd, J.
Thirteen-year-old Efrain ramos-Domingo (Efrain) was killed
by a union pacific railroad company (union pacific) train in
Schuyler, Nebraska, on July 27, 2005. Two days later, Efrain’s
mother, Manuela Domingo gaspar gonzalez (Manuela), was
approached by a union pacific claims representative and signed
a document releasing union pacific from liability for Efrain’s
death, in exchange for $15,000. The primary question presented
in this appeal is whether Manuela has alleged facts that would
show the purported release to be void or voidable.
I. BAcKgrOuND
Manuela filed a complaint in district court on November
27, 2006, alleging claims for wrongful death and breach of
fiduciary duty. Specifically, Manuela alleged that the design
of the pedestrian crossing at which Efrain had been killed,
and the way in which union pacific operated trains there, had
been negligent and that union pacific’s negligence had caused
Efrain’s death.
But Manuela also alleged facts with respect to her release
of union pacific from liability. Manuela alleged that 2 days
after Efrain’s death, a union pacific claims representative had
approached her with respect to settlement. Manuela does not
50 	282 NEBrASKA rEpOrTS

speak English and had no financial resources, including the
means to pay for Efrain’s burial. Manuela admitted having
signed a release in exchange for $15,000, after which union
pacific had petitioned the probate court to appoint a union
pacific representative to act as special administrator of Efrain’s
estate. (Manuela has since been appointed as Efrain’s personal
representative.)
Manuela alleged that she had not understood the meaning of
the release and had not known that by signing the release, she
was giving up the right to pursue legal action against union
pacific arising from Efrain’s death. She alleged that union
pacific’s claims representative had not advised her of the legal
consequences of signing the release.
union pacific filed a motion to dismiss Manuela’s complaint
pursuant to Neb. ct. r. pldg. § 6-1112(b)(6). union pacific
argued that the release barred Manuela’s claims and that if
Manuela was asking the court to void the release, then she was
required to tender the proceeds of the settlement before doing
so. The district court sustained the motion to dismiss with
respect to the wrongful death claim, reasoning that the release
was an “insuperable bar to relief.” But the court overruled the
motion with respect to the fiduciary duty claim.
Discovery proceeded on the remaining claim. Among other
things, Manuela sought to compel union pacific to produce
information relating to “each ‘direct settlement’ in which the
claimants are not employees of union pacific . . . and which
involved a death” for the 5 years preceding Efrain’s death.
union pacific objected on the grounds that the information
sought was not relevant to the fiduciary duty claim and that the
request was overly broad and unduly burdensome. In particu-
lar, union pacific claimed that the information was not easily
available for disclosure. In response, Manuela argued that the
information was relevant to show union pacific’s handling of
claims of this kind. And Manuela pointed to deposition testi-
mony of union pacific representatives suggesting that union
pacific maintained a claims database from which it could have
easily obtained and supplied the sort of information Manuela
was requesting. The district court, without explaining its pre-
cise reasoning, denied Manuela’s motion.
gONzAlEz v. uNION pAcIFIc rr. cO. 	51
cite as 282 Neb. 47

Manuela also sought to compel production of other docu-
ments that, generally speaking, contained information relating
to union pacific’s claims representatives. Manuela sought a
privilege log for a document that, according to union pacific,
contained the handwritten notes of its claims representative
about legal advice from counsel for union pacific. Manuela
also sought documents describing union pacific’s process
for evaluating the performance and productivity of its claims
representatives; union pacific and Manuela disagreed about
their relevance to her fiduciary duty claim. And Manuela
sought the union pacific file for the claims representative
who met with Manuela in this case. Again, union pacific and
Manuela disputed the relevance of the materials. And again,
without particularly explaining its reasoning, the court denied
Manuela’s motion.
The district court also, upon union pacific’s motion, entered
a protective order with respect to union pacific’s production
of the section of its claims manual dealing with grade crossing
accidents. union pacific had reservations about producing the
document, alleging that it was outdated, was not in use at the
time of Efrain’s death, was proprietary, and potentially could
be used against union pacific in other litigation. union pacific
agreed to produce the document, but asked for and obtained an
order from the district court directing the parties to keep the
document secure and private, not disclose it for any purpose
other than this case, and not distribute it to any third persons
other than counsel or retained experts. And the parties were
ordered to return the document to union pacific once the litiga-
tion was concluded.
Manuela moved for attorney fees in association with her
motions to compel discovery and submitted an affidavit evi-
dencing expenses that, in her appellate brief, she argues added
up to $3,756.70.1 And in addition to litigating the issues that
arose during discovery, union pacific filed a motion for sum-
mary judgment on Manuela’s remaining claim. After a hearing,
the district court granted the motion for summary judgment.
The court found, as a matter of law, that there was no fiduciary
1 Brief for appellant at 49.
52 	282 NEBrASKA rEpOrTS

duty owed by union pacific to Manuela and that even if such
a duty existed, the release signed by Manuela barred recovery.
Therefore, the court dismissed Manuela’s remaining claim. But
the court, having ruled in Manuela’s favor on some discovery
issues that are not disputed on appeal, awarded Manuela attor-
ney fees in the amount of $2,500. Manuela appeals.
II. ASSIgNMENTS OF ErrOr
Manuela assigns, as renumbered, that the district court
erred by (1) sustaining union pacific’s motions to dismiss her
wrongful death claim, (2) sustaining union pacific’s motion for
summary judgment on her fiduciary duty claim, (3) sustaining
union pacific’s motion for a protective order, (4) overruling
her motions to compel discovery, and (5) awarding inadequate
attorney fees.
III. ANAlYSIS
It is important to note, at the outset, that the scope of our
review is different with respect to each of Manuela’s two
claims for relief. Because Manuela’s fiduciary duty claim was
disposed of by summary judgment, we consider the evidence
that was presented in support of and opposition to that motion.2
But with respect to the wrongful death claim, we do not
consider the evidence in the record—because that claim was
dismissed for failing to state a claim upon which relief could
be granted, our review is limited to the allegations in the plead-
ings.3 We consider the wrongful death claim first.
1. Wrongful deAth clAim
[1-4] Manuela’s wrongful death claim was dismissed for
failure to state a claim. We review a district court’s order grant-
ing a motion to dismiss de novo.4 When reviewing a dismissal
order, we accept as true all the facts which are well pled and
the proper and reasonable inferences of law and fact which
2 See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
3 See Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533,
788 N.W.2d 252 (2010).
4 Id.
gONzAlEz v. uNION pAcIFIc rr. cO. 	53
cite as 282 Neb. 47

may be drawn therefrom, but not the pleader’s conclusions.5 To
prevail against a motion to dismiss for failure to state a claim,
the pleader must allege sufficient facts, accepted as true, to
state a claim to relief that is plausible on its face.6 In cases in
which a plaintiff does not or cannot allege specific facts show-
ing a necessary element, the factual allegations, taken as true,
are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will
reveal evidence of the element or claim.7
(a) rescission
[5] Although the issue presented is the viability of Manuela’s
wrongful death claim, our analysis does not relate to the facts
underlying that claim. rather, our analysis is focused on the
release, because its existence is apparent on the face of the
complaint, and one who seeks to avoid the legal effect of a
release of a claim for damages has the burden of pleading and
proving the facts which entitle such party to relief.8 So, the
question is whether Manuela has alleged facts (or could allege
facts) sufficient to support an inference that the release is void
or voidable. We find that she has.
[6] Manuela argues that the circumstances show her failure
to understand the release and the unequal bargaining position
that she was in. union pacific, on the other hand, relies upon
the general rule that in the absence of fraud, one who signs
an instrument without reading it, when one can read and has
had the opportunity to do so, cannot avoid the effect of one’s
signature merely because one was not informed of the contents
of the instrument.9 But the key qualifiers in that rule are the
ability to read and the absence of fraud. Manuela specifically
5 Id.
6 Id.
7 Id.
8 See Watmore v. Ford, 229 Neb. 121, 425 N.W.2d 612 (1988), overruled
on other grounds, Landon v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757
(1989).
9 See, Walker v. Walker Enter., 248 Neb. 120, 532 N.W.2d 324 (1995); Wrede
v. Exchange Bank of Gibbon, 247 Neb. 907, 531 N.W.2d 523 (1995).
54 	282 NEBrASKA rEpOrTS

pled that she could not read. And it is longstanding, well-
established law that circumstances like these are sufficient to
support legal or equitable relief from a release, on grounds
of fraud, overreaching, or a simple absence of a meeting of
the minds.10
[7,8] The general rule is that a release of a claim for relief
should not be upheld if fraud, deceit, oppression, or uncon-
scionable advantage is connected with the transaction.11 If the
releasor was under a misapprehension, not due to his or her
own neglect, as to the nature or scope of the release, and if
this misapprehension was induced by the misconduct of the
releasee, then the release, regardless of how comprehensively
worded, is binding only to the extent actually intended by the
releasor.12 The release, to the extent it purports to release claims
other than any understood by the releasor to be included, is
ineffective to that extent.13 This is because there was no meet-
ing of the minds, or binding mutual understanding, necessary
to create a contract.14
[9,10] Even an innocent or accidental misrepresentation, if
intended to be acted upon by the releasor, and actually relied
10 See, e.g., Ricketts v. Pennsylvania R. Co., 153 F.2d 757 (2d cir. 1946);
Provident Life & Accident Ins. Co. v. Bertman, 151 F.2d 1001 (6th cir.
1945); Great Northern Ry. Co. v. Kasischke, 104 F. 440 (8th cir. 1900);
Jacobs v. Farmland Mut. Ins. Co., 377 N.W.2d 441 (Minn. 1985); Montoya
v. Moore, 77 N.M. 326, 422 p.2d 363 (1967); Jordan v. Guerra, 23 cal.
2d 469, 144 p.2d 349 (1943); Palkovitz v. American S. & T. P. Co., 266 pa.
176, 109 A. 789 (1920); Miller v. Spokane International R. Co., 82 Wash.
170, 143 p. 981 (1914); Lusted v. The Chicago & Northwestern R. Co., 71
Wis. 391, 36 N.W. 857 (1888); Heuter v. Coastal Air Lines, Inc., 12 N.J.
Super. 490, 79 A.2d 880 (1951); Davis v. Whatley, 175 So. 422 (la. App.
1937).
11 See, Graham v. Atchison, T. & S. F. Ry. Co., 176 F.2d 819 (9th cir. 1949);
Carpenter International, Inc. v. Kaiser Jamaica Corp., 369 F. Supp. 1138
(D. Del. 1974).
12 Carpenter International, Inc., supra note 11.
13 See, Pacific Greyhound Lines v. Zane, 160 F.2d 731 (9th cir. 1947);
Jordan, supra note 10; Miller, supra note 10; Davis, supra note 10.
14 See id. See, also, e.g., Houghton v. Big Red Keno, 254 Neb. 81, 574
N.W.2d 494 (1998).
gONzAlEz v. uNION pAcIFIc rr. cO. 	55
cite as 282 Neb. 47

upon, can be effective to avoid a release.15 Beyond that, a find-
ing of overreaching or duress can support relief in equity from
a release. Overreaching, which is closely related to fraud,16
has been defined as the result of an inequality of bargaining
power or other circumstances in which there is an absence of
meaningful choice on the part of one of the parties.17 And in
circumstances affording an opportunity for overreaching, the
law demands good faith on the part of the releasee and a full
understanding on the part of the person injured as to his or her
legal rights.18
For instance, in Jordan v. Guerra,19 the dispute concerned a
release that had been signed by the father of a child who had
been struck and killed by a car. He was contacted by the driver
of the car and the driver’s insurance adjuster, who offered to
pay the child’s funeral expenses. The adjuster offered the father
enough to cover the funeral bill and his lost wages from work
and told the father that it was all the family could get. The
insurer prepared a release which purported to completely settle
any claim arising from the accident, which release the father
signed. later, the father sought to rescind the release, explain-
ing that he had not known that he had a right to anything except
the funeral expenses and time lost, which were the only subject
of discussion, and that he had thought that was all the release
covered. The california Supreme court affirmed a judgment in
the father’s favor, explaining that it was
for the trier of the facts to determine what the [father]
understood was covered by the writing and whether his
understanding different from the writing was induced by
the defendant. If a misconception be found and that the
defendant was responsible therefor, the contract insofar as
it purports to release claims other than those understood
15 See Doyle v. Teasdale, 263 Wis. 328, 57 N.W.2d 381 (1953).
16 See Vela v. Marywood, 17 S.W.3d 750 (Tex. App. 2000).
17 Schreiber v. Schreiber, 795 So. 2d 1054 (Fla. App. 2001).
18 Jordan, supra note 10. See, also, Graham, supra note 11; Jacobs, supra
note 10; Lusted, supra note 10; Heuter, supra note 10.
19 Jordan, supra note 10.
56 	282 NEBrASKA rEpOrTS

by the [father] to be included, is ineffective to that
extent . . . .20
And, the court found, there was sufficient evidence to support
the findings that the adjuster had hurried to reach a settlement
before the father could secure independent advice, that the
settlement was inadequate, and that the adjuster had misled
the father into believing that he had no claim beyond funeral
expenses and time lost and that those were the only items cov-
ered by the release.21
Similarly, in Jacobs v. Farmland Mut. Ins. Co.,22 the par-
ents of an accident victim sought to set aside a settlement
that had been reached with the tort-feasor’s insurance adjuster
only 7 days after the accident. The father, who agreed to the
settlement, could neither read nor write, although the adjuster
claimed to have explained the settlement to him. The Minnesota
Supreme court affirmed the trial court’s rescission of the
settlement, finding that the circumstances supported findings
of “improvidence, unconscionability,” and “willful indiffer-
ence to the rights of others.”23 The court explained that while a
finding of fraudulent misrepresentation was not implicit in the
jury’s findings,
fraud is a protean legal concept, assuming many shapes
and forms. In this case, [the adjuster] was guilty of over-
reaching, which is a species of fraud, and the jury implic-
itly so found. [The father] was a simple man, functionally
illiterate, and inexperienced. This, combined with his
grief, left him vulnerable to a superior negotiator. [The
adjuster] was unaware of [the father’s] illiteracy, but, as
an experienced adjuster, he could not have been unaware
of the man’s innate incapacity to negotiate effectively.
This is not a case of a hard bargain fairly made but an
unfair bargain unfairly made.24
20 Id. at 475-76, 144 p.2d at 352.
21 See Jordan, supra note 10.
22 Jacobs, supra note 10.
23 Id. at 444.
24 Id. at 444 n.1.
gONzAlEz v. uNION pAcIFIc rr. cO. 	57
cite as 282 Neb. 47

And in Heuter v. Coastal Air Lines, Inc.,25 the releasor was
an uneducated puerto rican who understood Spanish, but did
not read, write, or understand English. He was injured in an
airplane crash and hospitalized. A week after the accident,
agents of the airline came to the hospital and, according to the
releasor, told him that they were going to buy him some clothes
and give him some money. They took him from the hospital
in a bathrobe and slippers, provided him with clothes and
gave him $316 in cash, then returned him to the hospital. He
signed the release proffered to him by the agents with an “X”
mark, because he did not know how to write his name. But,
he claimed that the release had never been read or explained
to him. Nonetheless, the trial court entered summary judgment
against him.
On appeal, however, the New Jersey appellate court explained
that the rule permitting avoidance of a release was not lim-
ited to circumstances involving fraudulent misrepresentation or
similar misconduct. rather, the court explained, it is
when the release is obtained “from the illiterate, the weak-
minded or distressed party, under circumstances which
indicate that it was procured by artifice or deception,
or by undue pressure and importunity inducing action
without advice or time for deliberation, or by advantage
taken of distress, or for no or an inadequate considera-
tion, or is otherwise inequitable, that it will come under
condemnation.”26
The court rejected the defense that the agents had made no
“affirmative misstatement,” explaining that “even assuming
the agents refrained from making any affirmative misstate-
ment,” the agents’ conduct gave rise to a triable issue “as to
whether there had been ‘imposition practiced upon the signer
with intent to deceive him as to the purport of the paper
signed.’”27 And, the court reasoned, the releasor could, to
avoid the release,
25 Heuter, supra note 10.
26 Id. at 494, 79 A.2d at 883.
27 Id. at 495, 79 A.2d at 883.
58 	282 NEBrASKA rEpOrTS

properly rely upon the evidence of his illiteracy, his ill-
ness, the absence of friends and counsel, his lack of
understanding and the omission of all explanation, the
haste, pressure and somewhat startling circumstances sur-
rounding the procurement of his mark, and invoke perti-
nent equitable principles based upon unfair and uncon-
scionable conduct of the defendant.28
case law is, in fact, replete with instances in which per-
sons illiterate in English have been able to obtain relief from
releases that were inadequately explained to them or that
they simply did not understand.29 In Great Northern Ry. Co.
v. Kasischke,30 the Eighth circuit explained that the releasee
had a duty, when informed that the releasor “could not read
or write English, and that he relied upon him for an explana-
tion of the contents of the paper, to explain its purport and the
object of asking him to sign it, and to do so fully, in language
which the [releasor] could comprehend.” In Miller v. Spokane
International R. Co.,31 the Washington Supreme court found
the evidence of fraud sufficient when the releasor, who did
not speak English, testified that he had signed a release for a
personal injury claim that had not been explained to him, and
believed that he was being paid for lost wages. In Palkovitz v.
American S. & T. P. Co.,32 the Supreme court of pennsylvania
affirmed a judgment in favor of a releasor who could neither
read, write, nor understand English and had placed his mark
upon a release of a personal injury claim believing it to merely
be a receipt for relief money. And in Davis v. Whatley,33 the
louisiana appellate court also concluded that an illiterate
releasor was entitled to relief from a release that he had signed
28 Id. at 496, 79 A.2d at 883.
29 See Heuter, supra note 10. See, also, e.g., Kasischke, supra note 10;
Palkovitz, supra note 10; Miller, supra note 10; Davis, supra note 10.
30 Kasischke, supra note 10, 104 F. at 445.
31 Miller, supra note 10.
32 Palkovitz, supra note 10.
33 Davis, supra note 10.
gONzAlEz v. uNION pAcIFIc rr. cO. 	59
cite as 282 Neb. 47

believing to be a receipt, in his case, for payment of his medi-
cal bill.
Nebraska law contains similar examples. For instance, in
Ward v. Spelts,34 the parties had entered into a contract for the
sale of corn. The written contract was for the sale of 3,000
bushels of corn, but the seller claimed that had not been the
actual agreement of the parties. The seller could neither read
nor write and had made his mark on the contract based on the
assurance of the buyers’ agent that it embraced the agreement
as the seller understood it. We reversed a trial court judgment
for the buyers, explaining that “[t]he doctrine, that the careless-
ness or negligence of a party in signing a writing estops him
from afterwards disputing the contents of such writing,” does
not apply “when the defense is that such writing, by reason of
fraud, does not embrace the contract actually made.”35
Similarly, in West v. Wegner,36 the parties were disputing the
validity of a guaranty allegedly executed on a promissory note.
The purported guarantor alleged that he had been asked to sign
the note only as a witness. He could read and write, but did not
have his glasses, and signed the agreement not knowing that it
was a guaranty. We affirmed a judgment in his favor, rejecting
the creditor’s reliance upon the rule that “a party . . . is not
permitted to avoid the contract on the ground that he did not
attend to its terms, that he did not read the document which he
signed, that he supposed it was different in its terms, or that it
was a mere form.”37 That rule, we explained, “does not apply
where the controversy is between the parties and the execution
of the instrument was induced by fraud.”38
courts have also explained that a release can be voided on
the ground of duress, which occurs when pressure is brought to
force accession to unjust, unconscionable, or illegal demands.39
34 Ward v. Spelts, 39 Neb. 809, 58 N.W. 426 (1894).
35 Id. at 815, 58 N.W. at 428.
36 West v. Wegner, 172 Neb. 692, 111 N.W.2d 449 (1961).
37 Id. at 694, 111 N.W.2d at 450-51.
38 Id. at 694, 111 N.W.2d at 451.
39 See Kosmicki v. State, 264 Neb. 887, 652 N.W.2d 883 (2002).
60 	282 NEBrASKA rEpOrTS

So, for instance, a releasor’s dire economic circumstances40
or threats of legal trouble41 have been held to undermine the
enforceability of a release.42
And in Carroll v. Fetty,43 the Supreme court of Appeals of
West Virginia found that duress had been established when
the parents of a child struck by an automobile settled with
the tort-feasor’s insurance adjuster 2 days after the accident,
because their undertaker refused to release the child for burial
without being paid. The court explained that duress suffi-
cient to suspend the will exercised by a party to a release is
sufficient to destroy its legal effect. And, the court said, the
parents had been forced to sign the release in order to provide
their child with “a prompt and decent burial.”44 The insurance
adjuster, knowing of these “unfortunate and appalling circum-
stances,” took advantage of them.45 The court concluded that
where a releasee knows of duress and takes advantage of it
in causing the release to be executed, the release may be set
aside, provided the duress was sufficient to subvert the will of
the parties.46
When all of these well-established principles are considered,
it is evident that Manuela has alleged facts sufficient to state a
claim for relief from the release. She specifically alleged that
she does not read or speak English and did not understand the
effect of the release. While she has not made specific allega-
tions regarding misinformation or inaccurate language interpre-
tation, affirmative misstatements are not necessary. Manuela
has alleged facts that would, if proved, support an inference
that the release was void as not representing a binding mutual
understanding between the parties. And Manuela has at least
40 See Reliable Furniture Co. v. Fidelity & Guar. Ins. Under., 16 utah 2d
211, 398 p.2d 685 (1965).
41 See Montoya, supra note 10.
42 See Macke v. Jungels, 102 Neb. 123, 166 N.W. 191 (1918).
43 Carroll v. Fetty, 121 W. Va. 215, 2 S.E.2d 521 (1939).
44 Id. at 220, 2 S.E.2d at 524.
45 Id. at 219, 2 S.E.2d at 523.
46 See Carroll, supra note 43.
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cite as 282 Neb. 47

alleged facts that “raise a reasonable expectation that discovery
will reveal evidence”47 of fraud, overreaching, or duress.
These are, obviously, only allegations, and union pacific is
entitled to present evidence that its employees acted in good
faith and acquitted themselves equitably. But Manuela has
alleged facts that could allow a trier of fact to conclude other-
wise, and given our standard of review on a motion to dis-
miss, that is all that is required. On the face of her complaint,
Manuela pled a claim for relief, and the district court erred in
dismissing it.
Having reached that conclusion, we do not address Manuela’s
alternative argument that the release was invalid because at the
time it was executed, she had not been appointed personal rep-
resentative of Efrain’s estate. Only a decedent’s personal rep-
resentative may bring a claim for wrongful death of that dece-
dent,48 and the personal representative shall not compromise or
settle a claim for damages for wrongful death until the court by
which he or she was appointed shall first have consented to and
approved the terms of the settlement.49
But the complaint in this case, while it suggests that Manuela
had not been appointed personal representative at the time the
release was executed, does not allege anything about when she
was appointed or whether or not the settlement was ever rati-
fied by the personal representative or the probate court. Simply
put, there is no basis in the complaint to resolve this issue one
way or the other, and given our conclusion above with respect
to rescission, we need not address it further.
(b) Alternative grounds for Dismissal
In arguing for affirmance, union pacific offers several alter-
native reasons which it contends support the district court’s
dismissal of the claim.
47 See Central Neb. Pub. Power Dist., supra note 3, 280 Neb. at 538, 788
N.W.2d at 258.
48 See Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 641 N.W.2d 634
(2002).
49 See Neb. rev. Stat. § 30-810 (reissue 2008).
62 	282 NEBrASKA rEpOrTS

(i) Prayer for Relief
union pacific contends that Manuela’s complaint is defec-
tive because it does not contain a prayer that the release be
voided. We find this argument unpersuasive for two reasons.
First, as noted above, Manuela has alleged facts which would
support a finding that the release was not simply voidable, but
void ab initio. In that case, affirmative relief from the court is
not required; as a technical matter, the claim does not involve
“rescission” at all, because there is nothing to rescind. Of
course, as a practical matter, the court would still need to find
that the release was void in order to grant relief on the underly-
ing claim. But if the release is void, then it is not necessary for
the court to grant rescission in order to invalidate it.50
Second, to the extent that Manuela’s complaint should have
sought rescission, she asked for leave to amend her complaint
at the hearing on union pacific’s motion to dismiss. Neb. ct.
r. pldg. § 6-1115(a) provides that leave to amend a pleading
“shall be freely given when justice so requires.” But the dis-
trict court, finding that the release was an “insuperable bar to
relief,” dismissed the wrongful death claim without expressly
ruling on that request.
[11-13] We review a district court’s decision on a motion
for leave to amend a complaint for an abuse of discretion, but
a district court’s discretion to deny such leave is limited.51 A
district court’s denial of leave to amend pleadings is appro-
priate only in those limited circumstances in which undue
delay, bad faith on the part of the moving party, futility of
the amendment, or unfair prejudice to the nonmoving party
can be demonstrated.52 None of those factors were evident
here. And more specifically, it is an abuse of discretion for
the district court to dismiss a suit on the basis of the original
complaint without first considering and ruling on a pending
motion to amend.53 So, to the extent that Manuela’s failure
50 See, generally, Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990).
51 See State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010).
52 Id.
53 See id.
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cite as 282 Neb. 47

to specifically pray for rescission in her complaint supported
the court’s decision on union pacific’s motion to dismiss,
the court abused its discretion in not permitting Manuela to
amend her complaint.
(ii) Tender and Restitution
union pacific argues that Manuela was required, as a pre-
requisite to her suit, to tender back the $15,000 she received as
consideration for the release. union pacific relies upon Doe v.
Golnick,54 in which we held that a plaintiff’s claim for rescis-
sion of a settlement agreement was barred because she failed
to tender the settlement proceeds. We conclude, however, that
Doe is distinguishable. But explaining how will require an
examination of some basic common-law doctrine.
a. rescission at law and rescission in Equity
[14] The general rule upon which we relied in Doe was that
when a person seeks to avoid the effect of a release, he or she
must first tender or return whatever he or she has received for
executing the release.55 We recognized, however, that tender
or return of consideration is only a condition precedent in a
case where rescission is by act of the party—a legal rescission.
Tender or return is not a condition precedent in a case involv-
ing equitable rescission—an action to obtain a decree of rescis-
sion.56 The distinction, we have explained, is as follows:
“Strictly speaking, in a law case, the rescission is by
act of the party and is a condition precedent to bringing
an action to recover money or thing owing to him by any
other party to the contract as a consequence of the rescis-
sion, and by his rescission or repudiation of a contract a
party merely gives notice to the other party that he does
not propose to be bound by the contract. A court of law
entertains an action for the recovery of the possession of
chattels, or, under some circumstances, for the recovery
of land, or for the recovery of damages, and although
54 Doe v. Golnick, 251 Neb. 184, 556 N.W.2d 20 (1996).
55 See id.
56 See id.
64 	282 NEBrASKA rEpOrTS

nothing is said concerning it either in the pleading or in
the judgment, a contract or conveyance, as the case may
be, is virtually rescinded; the recovery is based on the fact
of such rescission and could not have been granted unless
the rescission had taken place.
“In equity, on the other hand, the rescission is effected
by the decree of the equity court which entertains the
action for the express purpose of rescinding the contract
and rendering a decree granting such relief. In other
words, a court of equity grants rescission or cancellation,
and its decree wipes out the instrument, and renders it as
though it does not exist.”57
So, because rescission is not accomplished in equity until the
court so decrees, the plaintiff has no obligation before suit to
tender or return goods or money received from the defendant.58
“‘This does not mean that the plaintiff is entitled to get back
what he gave and keep what he got, too. It means only that he
need not make formal tender before suit.’”59
The distinction between rescission at law and in equity is
difficult to make in a case involving rescission of a settlement
agreement, given that the plaintiff generally seeks to prosecute
an underlying claim, as opposed to, for instance, obtaining
the return of chattel transferred under a contract. In Doe, we
characterized it as rescission at law, based on the fact that the
underlying suit was an action at law.60 But even when a case
seeks rescission at law, there are several exceptions to the ten-
der requirement, many of which are relevant here.
b. Fraud in Inducement and Fraud in Execution
[15] First and most important, it is well established that a
rescinding party is not required to tender or return consider-
ation when the ground for rescission is fraud in the execution
57 Haumont v. Security State Bank, 220 Neb. 809, 815-16, 374 N.W.2d 2, 7
(1985). Accord Kracl, supra note 50.
58 Kracl, supra note 50; Haumont, supra note 57.
59 Kracl, supra note 50, 236 Neb. at 299, 461 N.W.2d at 73.
60 See Doe, supra note 54.
gONzAlEz v. uNION pAcIFIc rr. cO. 	65
cite as 282 Neb. 47

as opposed to fraud in the inducement.61 Fraud in the execu-
tion goes to the very existence of the contract, such as where
a release is misread to the releasor, or where one paper is sur-
reptitiously substituted for another, or where a party is tricked
into signing an instrument he or she did not mean to execute.62
In such cases, as explained above, there was no meeting of the
minds, so the consideration received was not received for con-
senting to the terms of the alleged contract—in other words,
it is not a question of a contract voidable for fraud, but of no
contract at all.63 Fraud in the inducement, by contrast, goes to
the means used to induce a party to enter into a contract. In
such cases, the party knows the character of the instrument
and intends to execute it, but the contract may be voidable if
the party’s consent was obtained by false representations—for
instance, as to the nature and value of the consideration, or
other material matters.64
[16] When a settlement or release is merely voidable, due to
fraud in the inducement, the consideration should be tendered
or returned as a condition precedent to maintaining an action
on the original claim.65 But in a case of fraud in the execu-
tion, because there never was a contract or release, tender or
return of the consideration is not required. The principle that
consideration should be returned or tendered “‘does not apply
to cases where a party holds out that he gives the consideration
61 See, Vickers v. Gifford-Hill & Co, Inc., 534 F.2d 1311 (8th cir. 1976); Ted
Price Construction Co. v. Cascade Natural Gas Corp., 307 F.2d 741 (9th
cir. 1962); Marshall v. New York Central Railroad Company, 218 F.2d 900
(7th cir. 1955); Zane, supra note 13; Brusseau v. Electronic Data Systems
Corp., 694 F. Supp. 331 (E.D. Mich. 1988); McCarty v. Kendall Company,
242 F. Supp. 495 (W.D.S.c. 1965); Stewart v. Eldred, 349 Mich. 28, 84
N.W.2d 496 (1957); Picklesimer v. Rd. Co., 151 Ohio St. 1, 84 N.E.2d 214
(1949); Jordan, supra note 10; Union Life & Accident Ins. Co. v. American
Surety Co., 113 Neb. 300, 203 N.W. 172 (1925); Swan v. Great Northern
R. Co., 40 N.D. 258, 168 N.W. 657 (1918).
62 See Swan, supra note 61.
63 See id.
64 See id.
65 See Picklesimer, supra note 61. See, also, Union Life & Accident Ins. Co.,
supra note 61; Swan, supra note 61.
66 	282 NEBrASKA rEpOrTS

for one thing, and by fraud obtains an agreement that it was
given for another thing.’”66
So, in Union Life & Accident Ins. Co. v. American Surety
Co.,67 this court rejected an argument that a party’s right to
rescind an instrument was defeated by his failure to tender the
premium received, stating that while the tender-or-return argu-
ment was based on “familiar principles,” they did not apply,
because “the right of rescission is based upon the at-one-time
existence of the contract.” We explained that “where . . . there
never was any contract in law, such tender was unnecessary,”
although the rescinding party “would doubtless be liable as for
money had and received.”68
It is on that basis that our decision in Doe is distinguishable.
In Doe, although our opinion did not discuss it, an examina-
tion of the transcript shows that the plaintiff’s testimony sup-
ported only fraud in the inducement. Although the plaintiff in
Doe claimed that the settlement had been obtained by duress,
she did not assert that the terms of the settlement varied from
what she understood them to be. But in this case, as discussed
above, Manuela’s complaint alleges facts supporting both fraud
in the inducement and fraud in the execution. To the extent that
she has alleged fraud in the execution, she was not required to
tender or return union pacific’s consideration in order to assert
her underlying wrongful death claim.
c. Other Exceptions
[17] But even where fraud in the inducement is alleged,
the tender-or-return requirement may not be imposed where it
would be inequitable to do so or where the underlying action
is for money damages against which the value of the consid-
eration could be set off against a recovery. We have held that
while the power of a party to avoid a transaction for fraud or
misrepresentation may be conditioned on an offer to return the
consideration received, a failure to do so does not preclude
66 Swan, supra note 61, 40 N.D. at 273, 168 N.W. at 661.
67 Union Life & Accident Ins. Co., supra note 61, 113 Neb. at 305, 203 N.W.
at 174.
68 Id. at 305, 203 N.W. at 175.
gONzAlEz v. uNION pAcIFIc rr. cO. 	67
cite as 282 Neb. 47

avoidance if the consideration “‘is merely money paid, the
amount of which can be credited in partial cancelation of the
injured party’s claim,’” or “‘constitutes a comparatively small
part of the whole consideration.’”69 As the Ninth circuit has
explained, a defendant cannot claim that it is “being unduly
harassed, assuming the validity of the releases. That issue can
be tried separately, and tried first, and if the court finds in [the
defendant’s] favor, that will be the end of the matter.”70
[18,19] And courts have also generally held, as this court did
in Davy v. School Dist. Of Columbus,71 that the rule requiring
tender or return of consideration “‘is not absolute, is not to be
strictly construed where restoration is impossible, and is to be
applied in accordance with equitable principles.’” So, courts
have held that, in the Eighth circuit’s words,
[a] release procured by fraud will be set aside, without
tender or return of the consideration, when the releasor,
because of conditions of poverty, is unable to meet the
tender-or-return requirement and the fraud remained undis-
covered until after the consideration had been expended
or otherwise put beyond the releasor’s control.72
Otherwise, “the wrongdoer goes unwhipped of justice in every
case where fraud is practi[c]ed on the improvident or poor,
who forsooth have spent some of what was obtained in the
69 Collins v. Hughes & Riddle, 134 Neb. 380, 390, 278 N.W. 888, 894 (1938).
See, Vavricka v. Mid-Continent Co., 143 Neb. 94, 8 N.W.2d 674 (1943);
Aron v. Mid-Continent Co., 143 Neb. 87, 8 N.W.2d 682 (1943); Fox v.
State, 63 Neb. 185, 88 N.W. 176 (1901). See, also, Hogue v. Southern
R. Co., 390 u.S. 516, 88 S. ct. 1150, 20 l. Ed. 2d 73 (1968); Ted Price
Construction Co., supra note 61; Taxin v. Food Fair Stores, Inc., 197 F.
Supp. 827 (E.D. pa. 1961).
70 Ted Price Construction Co., supra note 61, 307 F.2d at 743.
71 Davy v. School Dist. of Columbus, 192 Neb. 468, 473, 222 N.W.2d 562,
565 (1974). See, also, Vickers, supra note 61; Rachesky v. Finklea, 329
F.2d 606 (4th cir. 1964); Ted Price Construction Co., supra note 61; First
Nat. Bank & Trust Co. v. Am. Sec. & Trust Co., 437 F. Supp. 771 (D.D.c.
1977); Rase v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 118 Minn. 437,
137 N.W. 176 (1912); New Amsterdam Casualty Co. v. Harrington, 11
S.W.2d 533 (Tex. civ. App. 1928).
72 Vickers, supra note 61, 534 F.2d at 1314. See, also, Rase, supra note 71;
Harrington, supra note 71.
68 	282 NEBrASKA rEpOrTS

deal before discovering the fraud.”73 As the Ninth circuit said,
in rejecting an argument that an appellant facing financial dif-
ficulties was required to return a $21,000 settlement before
pursuing a multimillion-dollar claim:
[T]he suggested rule [does not] appeal to our sense of
fairness. There is an uncontradicted showing in the case
at bar that appellant is in financial difficulties and can-
not raise the $21,000. It does not sit well with us to say
to appellant, “you may be able to prove that you were
defrauded, that you are entitled to recover the entire
$3,067,591 that you claim, and that, by reason of appel-
lees’ fraud you bargained your claim away for $21,000,
but we will not let you until you have paid up the $21,000,
whether you are able to do so or not”. This smacks too
much of the famous saying of Anatole France: “The law,
in its magnificent equality, forbids the rich as well as the
poor to sleep under bridges, to beg in the streets, and to
steal bread”.74
In this case, although Manuela has not specifically alleged
an inability to repay the $15,000 she received, she did allege
that she has “no financial means,” including the means to pay
for Efrain’s burial. It would be reasonable to infer that the
$15,000 has been spent and that Manuela is unable to tender
that much money to union pacific. under those circumstances,
it is reasonable to infer from Manuela’s complaint that “resto-
ration [may be] impossible” within the meaning of our decision
in Davy75 and that Manuela may receive equitable relief from
the tender-or-return requirement.
(iii) Evidence That Manuela’s Native
Language Is Spanish
union pacific also argues that the release was translated to
Manuela in Spanish and that, therefore, she should have under-
stood it. In order to understand this argument, it is necessary to
briefly examine the record that was developed on the fiduciary
73 Rase, supra note 71, 118 Minn. at 441, 137 N.W. at 178.
74 Ted Price Construction Co., supra note 61, 307 F.2d at 743.
75 Davy, supra note 71.
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cite as 282 Neb. 47

duty claim after the wrongful death claim was dismissed.
The evidence, generally summarized, shows that when the
release was executed, Manuela was accompanied and advised
by the man with whom she was living and a priest who spoke
Spanish, who tried to explain the release to her. But Manuela
averred that her first language is not Spanish, but Q’anjob’al,
a Mayan dialect. She averred that at the time of the settlement,
she understood some Spanish, but was not fluent.
union pacific takes issue with that averment, pointing out
that the affidavit she made for the record was read to her in
Spanish. So, union pacific argues, she should have been able
to understand the release too. But, we note, Manuela also
averred that she had become more fluent in Spanish during
the nearly 3-year period between the accident and the execu-
tion of her affidavit. We also note a distinct lack of evidence
in the record suggesting that the release had been translated to
her correctly.
But, more important, Manuela has appealed from the dis-
missal of her wrongful death claim. As noted above, the scope
of our review is limited, on that claim, to Manuela’s complaint.
In her complaint, she alleged that she did not speak English
or understand the release and its legal consequences. union
pacific’s argument is directed at whether she could ultimately
prove those facts, but under our standard of review, we ask
only whether her allegations are plausible. They are.
(iv) Reasonable Diligence
[20-22] Finally, union pacific argues that Manuela failed to
prosecute her claim for rescission with reasonable diligence.
We have said that a party seeking rescission of a contract on
the grounds of fraud, misrepresentation, or business coercion
must do so promptly upon the discovery of the facts giving rise
to the right to rescind.76 But whether one seeking to rescind a
contract on the ground that it was procured by fraud or duress
has acted with reasonable promptness is, ordinarily, a question
of fact.77 And a delay is unreasonable only if a litigant has been
76 Bauermeister v. McReynolds, 253 Neb. 554, 571 N.W.2d 79 (1997).
77 McGuire v. Thompson, 152 Neb. 28, 40 N.W.2d 237 (1949).
70 	282 NEBrASKA rEpOrTS

guilty of “‘inexcusable neglect’” and, during the lapse of time,
circumstances have changed such that permitting rescission
would work inequitably to the disadvantage or prejudice of the
other party.78
The complaint here was filed 16 months after the accident,
and there is no basis in the complaint for evaluating when
Manuela might have learned of the basis for rescission. Nor
is there any basis in the complaint for concluding that union
pacific was somehow unfairly prejudiced by any delay. Nor, we
note, would the timeliness of Manuela’s claim for rescission be
at issue were the release to be found void, as opposed to void-
able. On the facts alleged here, we cannot say as a matter of
law that Manuela failed to act within a reasonable time79 or that
such a finding would be legally dispositive in any event. union
pacific’s argument provides no basis for affirming the dismissal
of Manuela’s wrongful death claim.
(c) conclusion on Wrongful Death
claim and rescission
In sum, we find that Manuela has alleged facts that, if
proved, could demonstrate that the release was void on the
basis of its failure to represent a binding mutual understand-
ing of the parties or was voidable as the product of fraud,
overreaching, or duress. We find no merit to union pacific’s
alternative grounds for affirming the dismissal of Manuela’s
wrongful death claim. In particular, we find that tender or
return of the consideration for the release is not necessary if
the release is void due to fraud in the execution and that even
if it is merely voidable, Manuela may still be able to prove an
exception to the tender requirement. Therefore, we find merit
to Manuela’s first assignment of error. The district court erred
in dismissing her wrongful death claim.
2. fiduciAry duty clAim
[23-25] Manuela argues that the court erred in granting sum-
mary judgment against her fiduciary duty claim. In reviewing
78 Kracl, supra note 50, 236 Neb. at 300, 461 N.W.2d at 74.
79 See Macke, supra note 42.
gONzAlEz v. uNION pAcIFIc rr. cO. 	71
cite as 282 Neb. 47

a summary judgment, we view the evidence in the light most
favorable to the party against whom the judgment was granted,
giving that party the benefit of all reasonable inferences deduc-
ible from the evidence.80 But, we note, the existence of a fidu-
ciary duty and the scope of that duty are questions of law for
a court to decide.81 The allegation of the existence of a confi-
dential or fiduciary relationship is a legal conclusion only and
insufficient to raise any issue of fact.82
Manuela argues that union pacific had a fiduciary duty to
act in her interests, which duty its representative breached by
permitting her to settle her claim. Evaluating Manuela’s argu-
ment will, again, require a brief examination of the record
that was made after the dismissal of the wrongful death claim
and submitted on the motion for summary judgment. Manuela
relies on evidence that the union pacific claims representative
who negotiated the settlement held himself out to Manuela as
being concerned about her well-being.
At his deposition, the claims representative explained that
based on his knowledge of Efrain’s accident, he did not believe
union pacific had been at fault, but that union pacific wants
to be a “good neighbor” in Schuyler, so the settlement was
an attempt to help Efrain’s family with burial expenses. The
claims representative offered a $15,000 settlement to pay for
the costs of the funeral home, travel to guatemala to bury
Efrain, and incidental expenses. Manuela points to evidence in
the record suggesting that union pacific’s claims representa-
tives are trained to gain the trust and confidence of potential
claimants in order to facilitate settlement. And in her affidavit,
Manuela averred that union pacific employees had told her
that “they were here to offer their help.”
[26-28] This, according to Manuela, was sufficient to support
a finding of a fiduciary duty from union pacific to Manuela.
We disagree. A fiduciary duty arises out of a confidential
80 A.W., supra note 2.
81 American Driver Serv. v. Truck Ins. Exch., 10 Neb. App. 318, 631 N.W.2d
140 (2001).
82 Degmetich v. Beranek, 188 Neb. 659, 199 N.W.2d 8 (1972).
72 	282 NEBrASKA rEpOrTS

relationship which exists when one party gains the confidence
of the other and purports to act or advise with the other’s
interest in mind.83 In a confidential or fiduciary relationship
in which confidence is rightfully reposed on one side and a
resulting superiority and opportunity for influence are thereby
created on the other, equity will scrutinize the transaction
critically, especially where age, infirmity, and instability are
involved, to see that no injustice has occurred.84 But superi-
ority of bargaining power alone does not create a fiduciary
duty, because there must also be an opportunity to exercise
undue influence.85
Obviously, the mere fact that the parties entered into a settle-
ment agreement is insufficient to support a finding of fiduciary
duty.86 And there was no evidence here that union pacific actu-
ally gained Manuela’s trust or had the opportunity to use its
claims representative’s relationship with her to influence her.
There is no evidence, even in Manuela’s affidavit, that she did
not understand union pacific was an adverse party.87 Manuela
did not aver that union pacific’s representative had actually
gained her confidence or that she entered into the settlement
because she trusted union pacific.88 In short, even if union
pacific held itself out as acting in Manuela’s interest, there is
no evidence that Manuela believed it or invested sufficient trust
in union pacific for union pacific to have an opportunity to
unduly influence her.
83 Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995); Bloomfield v.
Nebraska State Bank, 237 Neb. 89, 465 N.W.2d 144 (1991); Schaneman v.
Schaneman, 206 Neb. 113, 291 N.W.2d 412 (1980); Boettcher v. Goethe,
165 Neb. 363, 85 N.W.2d 884 (1957); American Driver Serv., supra note
81.
84 Schaneman, supra note 83.
85 See, Bloomfield, supra note 83; Schaneman, supra note 83, American
Driver Serv., supra note 81.
86 See, American Driver Serv., supra note 81; Huffman v. Poore, 6 Neb. App.
43, 569 N.W.2d 549 (1997).
87 See, Bellairs v. Dudden, 194 Neb. 5, 230 N.W.2d 92 (1975); American
Driver Serv., supra note 81.
88 See, Bloomfield, supra note 83; Huffman, supra note 86.
gONzAlEz v. uNION pAcIFIc rr. cO. 	73
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Manuela also suggests that a fiduciary duty was created by
the claims representative’s, in effect, “practicing law.”89 We
agree that the relationship between attorney and client is a
fiduciary or confidential relationship.90 But even if there was
evidence suggesting that the claims representative was engaged
in something akin to the unauthorized practice of law, there
is no evidence to suggest that he would have been Manuela’s
attorney—even had the claims representative been a practicing,
licensed attorney, there is no evidence from which an attorney-
client relationship between Manuela and the claims representa-
tive could be inferred.91
And the fiduciary nature of the attorney-client relationship
is premised upon the client’s right to believe and rely upon
his or her attorney’s representations and to be governed by the
attorney’s counsel.92 As explained above, there is no evidence
here that Manuela understood herself to have such a relation-
ship with union pacific’s claims representative. In the absence
of such evidence, the district court correctly concluded that
union pacific owed no fiduciary duty to Manuela. We find no
merit to Manuela’s second assignment of error.
3. discovery issues
[29] Manuela’s three final assignments of error are directed
at the court’s rulings on the parties’ disputes during the discov-
ery process. Decisions regarding discovery are directed to the
discretion of the trial court, and will be upheld in the absence
of an abuse of discretion.93
(a) protective Order
The first argument we address is Manuela’s claim that the
court erred in granting union pacific’s motion for a protective
89 Brief for appellant at 22.
90 See Bauermeister v. McReynolds, 254 Neb. 118, 575 N.W.2d 354 (1998).
91 See, Swanson v. Ptak, 268 Neb. 265, 682 N.W.2d 225 (2004); Bauermeister,
supra note 76.
92 See Zimmer v. Gudmundsen, 142 Neb. 260, 5 N.W.2d 707 (1942).
93 Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008).
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order regarding its claims manual. As described above, union
pacific obtained an order that the parties were to keep the docu-
ment secure and private, not disclose it for any purpose other
than this case, not distribute it to any third persons other than
counsel or retained experts, and return the document to union
pacific once the litigation was concluded. Manuela claims that
was an abuse of discretion.
[30,31] Neb. ct. r. Disc. § 6-326(c) provides that a trial
court may, “for good cause shown, . . . make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” The
law gives trial courts broad latitude to grant protective orders to
prevent disclosure of materials for many types of information,
including, but not limited to, trade secrets or other confidential
research, development, or commercial information.94 The u.S.
Supreme court has interpreted the language of § 6-326(c) as
conferring “broad discretion on the trial court to decide when
a protective order is appropriate and what degree of protection
is required.”95 The court explained that the “trial court is in the
best position to weigh fairly the competing needs and interests
of parties affected by discovery. The unique character of the
discovery process requires that the trial court have substantial
latitude to fashion protective orders.”96
union pacific argued that the claims manual should be pro-
tected because, among other reasons, it was outdated, was pro-
prietary, and could be used “inappropriately” in other litigation
against union pacific. While we recognize that this is not a
particularly compelling showing of good cause for a protective
order, we also note that Manuela has presented no argument,
either to the trial court or this court, explaining how she has
been prejudiced by the protective order, and we are mindful
of the trial court’s broad discretion with respect to protective
orders. Because there is no suggestion that Manuela’s case has
94 Phillips ex rel. Estates of Byrd v. G.M.Corp., 307 F.3d 1206 (9th cir.
2002).
95 Seattle Times Co. v. Rhinehart, 467 u.S. 20, 36, 104 S. ct. 2199, 81 l. Ed.
2d 17 (1984).
96 Id.
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been prejudiced by the protective order, we conclude that the
court did not abuse its discretion by entering it.
(b) Motions to compel
Manuela argues that the district court abused its discretion in
denying several of her motions to compel, as described above.
But given the procedural posture of this case, we decline to
address her arguments. As described above, union pacific
objected to the discovery requests at issue by, among other
things, disputing the relevance of the materials sought. And,
because the court did not explain its reasoning for denying
Manuela’s motions, we do not know whether the court agreed
with union pacific that the materials sought were irrelevant.
This is significant because, at the time that the discovery dis-
putes were resolved, the issues in this case were fundamentally
different. Manuela’s wrongful death claim had been dismissed,
and discovery was being conducted as to her fiduciary duty
claim before summary judgment was entered. But we have
concluded that the wrongful death claim should not have been
dismissed. And we have concluded that judgment was properly
entered against Manuela on the fiduciary duty claim.
So, when this case is remanded, the claim upon which dis-
covery was being conducted will be gone and, instead, any
discovery will be conducted with respect to the wrongful death
claim (and related rescission arguments). This means that the
relevance of the disputed materials may well be different. We
have no way of knowing whether union pacific will continue
to dispute their relevance, whether Manuela will continue to
seek their production, or whether the district court’s ruling on
any remaining discovery disputes would be the same given the
substitution of claims required by our mandate.
Our appellate review of discovery decisions that were made
in an entirely different legal context would be at best advi-
sory, and not particularly good advice at that. In other words,
because Manuela’s claims for relief have changed, the discov-
ery arguments that the parties had been making are moot. So,
we do not address the merits of Manuela’s arguments regarding
her motions to compel. rather, we direct the parties and the
district court, upon remand, to revisit any remaining discovery
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disputes in light of the changed legal context in which they
are presented. And we encourage the district court, should it
be required to rule on any such disputes, to articulate the basis
for its rulings, in order to facilitate possible appellate review of
their merits.97
(c) Attorney Fees
[32] Finally, Manuela argues that the court awarded her
insufficient attorney fees. When an attorney fee is authorized,
the amount of the fee is addressed to the trial court’s discretion,
and its ruling will not be disturbed on appeal absent an abuse of
discretion.98 As described above, in this case, Manuela sought
a total of $3,756.70 in attorney fees for discovery disputes, but
was awarded only $2,500. Manuela argues that she should have
been awarded the full amount she asked for.
But Manuela’s motion for attorney fees was based on an
affidavit from her attorney, who averred as to her rates and
expenses with respect to the entire January 9, 2008, hearing on
her motion to compel. Manuela’s attorney averred as to the time
necessary for the hearing, travel to the hearing, and writing of
her brief, and to various travel expenses. And as noted above,
while Manuela prevailed on some of the issues presented by
her motion to compel, she did not prevail on all of them.
[33] Attorney fees are a permissible sanction for a discovery
violation.99 If a court finds that an attorney or party unneces-
sarily expanded the proceedings by other improper conduct,
including, but not limited to, abuses of civil discovery pro-
cedures, the court shall assess attorney fees and costs.100 In
this case, however, the district court found some but not all
of Manuela’s discovery complaints to be warranted, which
97 See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007)
(explaining difficulty of reviewing trial court’s exercise of discretion when
court does not explain reasoning).
98 Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009).
99 See, Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d
357 (2007); Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560
(1997).
100 Neb. rev. Stat. § 25-824(4) (reissue 2008).
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cite as 282 Neb. 47

means, of course, that not all of union pacific’s opposition to
Manuela’s motion to compel was substantially unjustified.101
In other words, even if some of union pacific’s conduct was
an “abuse” of the civil discovery procedures, not all of it was.
given that finding, the district court did not abuse its discretion
in reducing the attorney fees that Manuela requested for the
hearing on her motion to compel.
IV. cONcluSION
For the foregoing reasons, we conclude that the district
court erred in dismissing Manuela’s wrongful death claim. As
to that claim, the court’s judgment is reversed, and the cause
remanded for further proceedings consistent with this opinion.
But we conclude that the court correctly entered summary judg-
ment against Manuela’s fiduciary duty claim, and we affirm the
court’s judgment in that respect. We affirm the protective order
and award of attorney fees. And finally, we neither affirm nor
reverse the court’s rulings on Manuela’s motions to compel;
instead, we direct the court upon remand to revisit any discov-
ery issues that the parties continue to dispute.
A ffirmed in pArt, reversed And remAnded
in pArt for further proceedings , And
in pArt remAnded With directions.
101 See Greenwalt, supra note 99.
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