Evert v. Srb , 308 Neb. 895 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2021 08:09 AM CDT
- 895 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895Lewis H. Evert and Trudy N. Evert,
appellees, v. Joseph E. Srb and
Marilyn E. Srb, appellants.
___ N.W.2d ___
Filed April 9, 2021. No. S-20-385.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the appeal.
3. Judgments: Jurisdiction: Final Orders: Appeal and Error. Where the
county court enters neither a judgment nor final order, the district court
sitting as an appellate court is without jurisdiction.
4. Final Orders: Appeal and Error. When no further action of the court
is required to dispose of the cause pending, it is final; when the cause is
retained for further action, it is interlocutory and nonappealable.
5. Judgments: Final Orders: Words and Phrases. A “judgment” is a
court’s final consideration and determination of the respective rights and
obligations of the parties to an action as those rights and obligations
presently exist.
6. Judgments. If a judgment looks to the future in an attempt to judge the
unknown, it is a conditional judgment.
7. Judgments: Final Orders. A conditional judgment is wholly void
because it does not perform in praesenti and leaves to speculation and
conjecture what its final effect may be.
8. Judgments: Appeal and Error. Conditional judgments are not
appealable.
9. Judgments: Jurisdiction: Appeal and Error. Orders which specify
that a trial court will or will not exercise its jurisdiction based on
future action or inaction by a party are conditional and therefore
not appealable.
- 896 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 89510. Judgments: Final Orders: Appeal and Error. Conditional orders do
not automatically become appealable on the occurrence of the specified
conditions, but they can operate if other conditions have been met, at
which time the court may make a final order.
11. Judgments. A conditional order is not a judgment.
12. Judgments: Final Orders. Conditional orders that do not perform in
praesenti have no force and effect as a final order or judgment from
which an appeal can be taken.
13. Judgments: Boundaries: Contribution. The purpose of the boundary
fence contribution statute, Neb. Rev. Stat. § 34-112.02 (Cum. Supp.
2020), is for a landowner to obtain an order or judgment that determines
the rights of the parties.
14. Judgments: Jurisdiction: Appeal and Error. An appellate court has
the power to determine whether it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction to enter the order; to vacate
a void order; and, if necessary, to remand the cause with appropri-
ate directions.
Appeal from the District Court for Lincoln County, Michael
E. Piccolo, Judge, on appeal thereto from the County Court
for Lincoln County, Kent D. Turnbull, Judge. Judgment of
District Court reversed and remanded with directions.
Brian T. McKernan, of McGrath, North, Mullin & Kratz,
P.C., L.L.O., for appellants.
Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
This appeal concerns a division fence dispute between
Joseph E. Srb and Marilyn E. Srb, the appellants, and Lewis
H. Evert and Trudy N. Evert, the appellees, who own adjacent
properties on which cattle graze. The Everts filed a fence dis-
pute complaint in the county court for Lincoln County, seeking
contribution pursuant to Neb. Rev. Stat. § 34-112.02 (Cum.
Supp. 2020), in connection with the anticipated construction
- 897 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895of a fence to span a portion of the boundary between the par-
ties’ property. Following a trial, the county court ordered the
Srbs to perform or monetarily contribute to the construction of
a division fence between the adjoining properties, depending
on several actions to be taken by the parties. The Srbs appealed
to the district court, which affirmed the findings of the county
court, but remanded the case for further proceedings on the
issue of contribution. The Srbs appeal from the order of the
district court. Because we conclude that the county court order
was a conditional order from which no appeal could be taken,
the district court did not acquire jurisdiction and, in turn, we
lack jurisdiction to consider the merits. We reverse the order
of the district court and remand the cause with directions to
vacate its order and dismiss its appeal.
STATEMENT OF FACTS
The Everts own a section of agricultural land situated west
of and adjacent to another section of agricultural land owned
by the Srbs in Lincoln County, Nebraska. The parties graze
cattle on their respective properties and have a reciprocal
easement that allows both parties access to the other property
to repair existing fence. Although a fence spans much of the
boundary line, there is a portion of the boundary that is pres-
ently unfenced. The Everts’ amended fence dispute complaint
requested the Srbs to construct half of a boundary fence for this
portion or to contribute to its construction.
The county court held a trial on April 18, 2019. The parties
established that the unfenced portion of the boundary included
a canyon floor and canyon bluffs, but that despite the rugged
terrain, cattle had been passing between the parties’ proper-
ties. The Srbs claimed that the rough terrain would be “nearly
impossible” to fence, although the Everts claimed that there
had been a functioning fence or wire barrier at one time that
effectively prevented the cattle from passing.
The Srbs asserted that the Everts’ claim should be barred by
claim preclusion, issue preclusion, and other various affirma-
tive defenses. These affirmative defenses generally centered
- 898 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895on a 2006 “boundary dispute” suit regarding the parties’
properties, which was settled and subsequently dismissed
with prejudice. At that time, the parties entered into recip-
rocal easements providing all parties the right to enter onto
the other parties’ property to install, maintain, and repair the
common fence. The county court excluded evidence of the
prior dispute because it lacked relevance in the current fence
dispute case.
In its June 14, 2019, written order, the county court found
that the Everts satisfied the procedural requirements of
§ 34-112.02 and found it “creditable” that “a fence is needed to
keep cattle from crossing back and forth between the proper-
ties.” The county court determined that the Everts were entitled
to a ruling requiring either fence building performance or con-
tribution by the Srbs, depending on a number of factors yet to
be decided.
The order directed the Srbs to “state in writing their willing-
ness or non-willingness to perform by building their equitable
portion of the fence” within 10 days. If the Srbs responded that
they were unwilling to build a fence or did not respond, then
the Everts were granted permission to enter upon the Srbs’
property, remove brush and trees, construct the fence, and
return with an itemized statement concerning costs of materials
and labor within 30 days after work is completed. The court
found that the cost to the Srbs would be “subject to change
depending on the difficulty of the task at hand” and gave the
Srbs an opportunity to have a hearing within 10 days from
receipt of the Everts’ itemized statement to contest their equita-
ble contribution. Although the county court found that a bound-
ary fence should conform to certain statutory specifications as
listed in Neb. Rev. Stat. §§ 34-115 and 34-116 (Reissue 2016),
it also submitted that due to the nature of the terrain, the parties
could reach an agreement to vary from those requirements and
save costs to all parties.
The Srbs appealed to the district court. The district court
affirmed the findings of the county court, but remanded the
case to the county court for further determination of the
- 899 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895amount of contribution. The district court found that the county
court was statutorily authorized to enter only a judgment of
contribution or money damages and that it had overreached by
including various equitable provisions in its order.
The Srbs appeal.
ASSIGNMENTS OF ERROR
The Srbs generally claim that the district court erred by
affirming the findings in the order of the county court and the
determination of the county court to the effect that the Everts
were entitled to a favorable ruling.
STANDARDS OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law. In re Estate of Abbott-Ochsner,
299 Neb. 596, 910 N.W.2d 504 (2018).
ANALYSIS
[2] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the appeal. Id. As we explain below, because
the order of the county court was not a judgment or final order,
the district court and, consequently, this court are without juris-
diction in this appeal.
[3] Neb. Rev. Stat. § 25-2733 (Reissue 2016) empowers
the district court to review certain appeals from a “judgment
or final order” of the county court. Where the county court
enters neither a judgment nor final order, the district court sit-
ting as an appellate court is without jurisdiction. See Village
of Orleans v. Dietz, 248 Neb. 806, 539 N.W.2d 440 (1995)
(determining that county court ruling not judgment; therefore,
district court lacked jurisdiction).
[4-8] As a general matter, we have stated that when no fur-
ther action of the court is required to dispose of the cause pend-
ing, it is final; when the cause is retained for further action, it
is interlocutory and nonappealable. Deuth v. Ratigan, 256 Neb.
419, 590 N.W.2d 366 (1999). With respect to judgments, we
have stated a “judgment” is a court’s final consideration and
- 900 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895determination of the respective rights and obligations of the
parties to an action as those rights and obligations presently
exist. Village of Orleans v. Dietz, supra. If a judgment looks
to the future in an attempt to judge the unknown, it is a condi-
tional judgment. Id. We have observed that a conditional judg-
ment is wholly void because it does not perform in ­praesenti
and leaves to speculation and conjecture what its final effect
may be. Id. Conditional judgments are not appealable. See
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428,
811 N.W.2d 178 (2012).
[9-12] With respect to orders, we have similarly observed:
Orders which specify that a trial court will or will not
exercise its jurisdiction based on future action or inaction
by a party are conditional and therefore not appealable.
Such conditional orders have no effect as a final order
from which a party can appeal. Conditional orders do not
automatically become appealable on the occurrence of the
specified conditions. But they can operate if other condi-
tions have been met, at which time the court may make a
final order.
Stevens v. Stevens, 292 Neb. 827, 829-30, 874 N.W.2d 453,
455 (2016). Further, a conditional order is not a judgment.
Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014). We
have made clear that “conditional orders that do not perform in
praesenti have no force and effect as a final order or judgment
from which an appeal can be taken.” Custom Fabricators v.
Lenarduzzi, 259 Neb. 453, 460, 610 N.W.2d 391, 397 (2000)
(emphasis in original). In sum, conditional judgments and con-
ditional orders are not appealable. In the instant case, we are
presented with a conditional order which, applying the forego-
ing principles, was not appealable to the district court.
The Srbs contend that the county court’s June 14, 2019,
order “disposed of the entire claim [and] required no further
action to be taken by the Court.” Brief for appellants at 1.
We do not agree. The county court order was conditioned on
the future action and inaction of the parties; it did not make a
- 901 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895final determination of the rights and obligations of the parties.
It was a conditional order and not appealable.
In the June 14, 2019, order, the county court determined
that the Everts had met the procedural requirements attendant
to fence disputes under § 34-112.02 and were entitled to a
ruling requiring contribution by the Srbs. The order provided
as follows:
Defendants are given 10 days from the date of this Order
to state in writing their willingness or non-willingness to
perform by building their equitable portion of the fence.
Failure to file a response with the Court within 10 days
shall operate as a refusal by the Defendants to agree to
perform by building their equitable portion of the divi-
sion fence.
If the Defendants fail to respond or do respond and
indicate their refusal to perform by building their equi-
table portion of the division fence, then pursuant to Neb.
Rev. Stat. § 34-112.01 (2019), the Court grants permis-
sion for the Plaintiffs to enter upon the Defendants’
property (Section 19) to construct a division fence along
the fence line or boundary line between Section 24 and
Section 19. Entry is allowed only to the extent necessary
to remove obstacles such as brush and trees in order to
construct a fence as defined by law.
The Court finds that the actually [sic] cost for the con-
struction of the division fence as defined by Neb. Rev.
Stat. §34-115 and §34-116 is subject to change depend-
ing on the difficulty of the task at hand. Therefore the
Court, limits the Defendants’ monetary contribution to an
equitable portion, meaning one-half the cost of materials
and labor including the costs associated with removing
trees, brush and obstacles. The Plaintiffs shall submit an
itemized statement concerning costs of removing trees,
brush and obstacles along with the costs for materials
and labor within thirty days after the work is completed.
The Defendants shall be supplied a copy of the itemized
- 902 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895statement by the Plaintiffs and shall be given an oppor-
tunity for hearing, at their request (within 10 days from
receipt of the statement) to contest the amount claimed as
their equitable portion.
[13] Examining the boundary fence statutes vesting the
county court with jurisdiction, it is clear that the purpose of
the contribution statute is for a landowner to obtain an order
or judgment that determines the rights of the parties. Neb. Rev.
Stat. § 34-102 (Reissue 2016) provides in part:
(1) When there are two or more adjoining landowners,
each of them shall construct and maintain a just propor-
tion of the division fence between them. Just proportion
means an equitable allocation of the portion of the fence-
line to be physically constructed and maintained by each
landowner or, in lieu thereof, an equitable contribution to
the costs to construct and maintain the division fence to
be made by either landowner.
Section 34-112.02 provides the process for a landowner to
obtain a judgment for contribution for a just proportion of the
division fence between the parties when the landowners can-
not agree. The county court order from which the appeal to
the district court was taken had not determined the parties’
contribution, which is the very objective of an action under
§ 34-112.02. The outcome of the case is conditioned on actions
yet to be taken as described in the June 14, 2019, order. The
order under review by the district court was of no force and
effect as a final order from which an appeal can be taken.
Custom Fabricators v. Lenarduzzi, 259 Neb. 453, 610 N.W.2d
391 (2000).
[14] Because the district court lacked jurisdiction to con-
sider the Srbs’ appeal, we, in turn, lack jurisdiction to consider
the district court’s review. See Omaha Expo. & Racing v.
Nebraska State Racing Comm., 307 Neb. 172, 949 N.W.2d 183(2020). An appellate court has the power to determine whether
it lacks jurisdiction over an appeal because the lower court
lacked jurisdiction to enter the order; to vacate a void order;
- 903 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
EVERT v. SRB
Cite as 308 Neb. 895and, if necessary, to remand the cause with appropriate direc-
tions. Francisco v. Gonzalez, 301 Neb. 1045, 921 N.W.2d 350(2019). In the instant case, because the district court did not
acquire jurisdiction, its order must be vacated.
CONCLUSION
The county court’s order in this fence dispute brought under
Neb. Rev. Stat. § 34-101 et seq. (Reissue 2016 & Cum. Supp.
2020) was a conditional order and as such not appealable to
the district court. Consequently, the district court sitting as
an appellate court lacked jurisdiction, as do we. We reverse
the order of the district court and remand the cause with
directions to vacate its order and dismiss the appeal for lack
of jurisdiction.
Reversed and remanded with directions.