Eli's, Inc. v. Commercial Lithographing, Inc.

601 N.W.2d 795, 8 Neb. Ct. App. 752, 1999 Neb. App. LEXIS 287
CourtNebraska Court of Appeals
DecidedOctober 19, 1999
DocketNo. A-98-1015
StatusPublished

This text of 601 N.W.2d 795 (Eli's, Inc. v. Commercial Lithographing, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eli's, Inc. v. Commercial Lithographing, Inc., 601 N.W.2d 795, 8 Neb. Ct. App. 752, 1999 Neb. App. LEXIS 287 (Neb. Ct. App. 1999).

Opinion

Irwin, Chief Judge.

I. INTRODUCTION

Commercial Printing Co. (Commercial Printing) appeals from an order of the district court which sustained an objection by Eli’s, Inc. (Eli’s), to Commercial Printing’s intervening claim in this execution proceeding. On appeal, Commercial Printing [753]*753asserts that the district court erred in denying Commercial Printing’s request for a jury trial, in finding that Commercial Printing did not have a valid claim to the property being executed upon, and in overruling a motion for new trial. For the reasons stated herein, we affirm.

II. BACKGROUND

In 1994, Commercial Printing and the principals of Eli’s joined to form a new company, known as Commercial Lithographing, Inc. (Commercial Lithographing). (We note that at some relevant times during the events leading up to this case, Commercial Printing was known as Commercial Lithographing Co. For clarity, we will refer to the company as “Commercial Printing” throughout. Additionally, we will refer to the principals of Eli’s as “Eli’s.”) The management agreement between the parties provided for Commercial Printing to be in charge of the day-to-day operations of Commercial Lithographing. The parties agreed to share any profits or losses experienced by Commercial Lithographing.

Commercial Lithographing struggled financially from the inception of the company. Commercial Lithographing incurred debts to both Commercial Printing and Eli’s. In 1995, representatives of Commercial Printing and Eli’s met to discuss selling the equipment of Commercial Lithographing. On September 17, 1996, Eli’s filed a petition in the district court seeking a judgment against Commercial Lithographing for outstanding debt owed to Eli’s. On January 30, 1997, the court awarded Eli’s summary judgment in the amount of $36,888.96.

On April 14, 1997, Eli’s filed a praecipe for the sheriff to execute the January 30 judgment against Commercial Lithographing’s remaining assets, including but not limited to a paper cutter. On May 6, Commercial Printing filed an amended notice of an intervening claim. Commercial Printing alleged ownership of the cutter, pursuant to a bill of sale dated December 11, 1996, in the amount of $8,000.

On May 12, 1997, Eli’s filed an objection to Commercial Printing’s intervening claim. Eli’s alleged that the transfer of the cutter was a fraudulent transfer and that reasonably equivalent value was not paid for the cutter. On July 31, 1998, the court [754]*754entered an order finding that Eli’s execution against the property, including the cutter, should proceed. The court found that Commercial Printing’s acquisition of the cutter bore numerous “badges of fraud”: the transfer occurred while Commercial Lithographing was insolvent and Commercial Printing was aware of the insolvency. Additionally, the court found that Commercial Printing was not a good faith transferee.

On August 5, 1998, Commercial Printing filed a motion for new trial. The court’s journal entries indicate that the motion was overruled on September 3. Commercial Printing filed this timely appeal.

III. ASSIGNMENTS OF ERROR

On appeal, Commercial Printing has assigned four errors, which we consolidate for discussion to three. First, Commercial Printing alleges that the district court erred in denying Commercial Printing’s request for a jury trial. Second, Commercial Printing asserts that the district court erred in sustaining Eli’s objection to the intervening claim. Third, Commercial Printing asserts that the district court erred in overruling the motion for new trial.

IV. ANALYSIS

1. Jury Trial

Commercial Printing first asserts that the district court committed reversible error by denying Commercial Printing’s request for a jury trial and in conducting a bench trial on the merits of the intervening claim. Commercial Printing specifically requested a jury trial in a pleading captioned “Intervening Claimant’s Response to Plaintiff’s Objection” filed on June 27, 1997, as well as orally before the court on July 2. The court denied the request, and the case proceeded as a bench trial on the merits.

Commercial Printing’s claim of entitlement to a jury trial in this case is premised upon Neb. Rev. Stat. § 25-1523 (Reissue 1995). Neb. Rev. Stat. §§ 25-1521 through 25-1523 (Reissue 1995) govern the procedure to be followed when an intervening claimant makes a claim of ownership on property being levied upon pursuant to a judgment. Section 25-1521 provides that “the [755]*755court” is to make the relevant findings as to ownership and enter judgment accordingly. Section 25-1523, however, provides for a procedure to be followed “[i]f the jury” finds the intervening claimant’s claim of ownership to be valid. Commercial Printing alleges that this provision indicates that there is a right to a jury trial in matters such as the present case. We disagree.

Our research of §§ 25-1521 through 25-1523 indicates that prior to 1973, all three sections specifically provided for a jury to be impaneled and for the jury to make the relevant determinations as to the intervening claimant’s claim of ownership. In 1973, however, §§ 25-1521 and 25-1522 were specifically amended to remove all language concerning the jury and substitute language providing that “the court” make the relevant findings. Inexplicably, § 25-1523 was not amended.

Our review of the sections at issue indicates that §§ 25-1521 and 25-1522 provide the procedure to be followed when conducting the trial on the merits of the intervening claimant’s claim of ownership. Section 25-1523 provides a procedure that can be followed by the executing plaintiff if the intervening claimant is successful. We think the longstanding principle of statutory construction that a specific statute takes precedence over a general statute because the specific statute is a specific expression of legislative will concerning the subject is applicable in the present case. State v. Barnett, 1 Neb. App. 708, 511 N.W.2d 150 (1993). See Nebraska Equal Opp. Comm. v. State Emp. Retirement Sys., 238 Neb. 470, 471 N.W.2d 398 (1991). Accordingly, because §§ 25-1521 and 25-1522 specifically govern the procedure to be followed at the trial on the merits of the intervening claimant’s claim and § 25-1523 only provides for procedures to be followed after the trial, we defer to intent expressed in §§ 25-1521 and 25-1522. We conclude the trial court did not err in denying Commercial Printing’s request for a jury. This assigned error is without merit.

2. Eli’s Objection

Commercial Printing assigns as error the court’s sustaining of Eli’s objection to Commercial Printing’s intervening claim. Specifically, Commercial Printing assigns that the court erred in finding a fraudulent transfer and in finding that Commercial [756]*756Printing was not a good faith transferee.

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Bluebook (online)
601 N.W.2d 795, 8 Neb. Ct. App. 752, 1999 Neb. App. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elis-inc-v-commercial-lithographing-inc-nebctapp-1999.