Filed: Mar. 18, 2011
Latest Update: Mar. 18, 2011
Summary: SUPPLEMENTAL OPINION PER CURIAM. Case No. S-10-342 is before this court on the motion for rehearing filed by the appellees regarding our opinion reported at Behrens v. Blunk, 280 Neb. 984 , 792 N.W.2d 159 (2010). We overrule the motion but for purposes of clarification, modify the opinion as follows: In the section of the opinion designated "PROCEDURAL HISTORY," we withdraw the third paragraph, id. at 988, 792 N.W.2d at 163, and substitute the following: In November 2009, the defendan
Summary: SUPPLEMENTAL OPINION PER CURIAM. Case No. S-10-342 is before this court on the motion for rehearing filed by the appellees regarding our opinion reported at Behrens v. Blunk, 280 Neb. 984 , 792 N.W.2d 159 (2010). We overrule the motion but for purposes of clarification, modify the opinion as follows: In the section of the opinion designated "PROCEDURAL HISTORY," we withdraw the third paragraph, id. at 988, 792 N.W.2d at 163, and substitute the following: In November 2009, the defendant..
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SUPPLEMENTAL OPINION
PER CURIAM.
Case No. S-10-342 is before this court on the motion for rehearing filed by the appellees regarding our opinion reported at Behrens v. Blunk, 280 Neb. 984, 792 N.W.2d 159 (2010). We overrule the motion but for purposes of clarification, modify the opinion as follows:
In the section of the opinion designated "PROCEDURAL HISTORY," we withdraw the third paragraph, id. at 988, 792 N.W.2d at 163, and substitute the following:
In November 2009, the defendants again moved to compel discovery. The court's docket sheet shows that the court sustained the motion in part, and in part overruled it, but the court apparently did not issue a written order. This order, however, effectively overruled the motion to stay, and the defendants agree that the court did overrule that motion. In December, the defendants moved for summary judgment. They asked for a dismissal, arguing that the plaintiffs could not "simultaneously maintain this action while asserting Fifth Amendment rights." In support of this motion, the defendants stated only that "Behrens has asserted his Fifth Amendment rights, has refused to answer various discovery propounded by Defendants, and has refused to sit for a deposition in this matter."
Further, we withdraw the last paragraph in the section of the opinion designated "ANALYSIS," id. at 996, 792 N.W.2d at 168, and substitute the following:
Because the court's findings were insufficient to support an order of dismissal, we reverse the order and remand the cause for further proceedings. The defendants' cross-appeal does not alter our conclusion. They moved for summary judgment solely because of Behrens' invocation of his Fifth Amendment rights. Because this was not a proper ground for summary judgment, the court did not err in overruling their motion.
The remainder of the opinion shall remain unmodified.
FORMER OPINION MODIFIED.
MOTION FOR REHEARING OVERRULED.
WRIGHT, J., not participating.
