Wisniewski v. Heartland Towing ( 2014 )

Nebraska Advance Sheets
548 287 NEBRASKA REPORTS
in concluding that the general verdict rule did not bar it from
overturning the jury’s verdict.
CONCLUSION
Although the district court’s instructions did not explicitly
charge the jury on BNSF’s duty of care, they implicitly recog­
nized BNSF’s duty by requiring the jury to find that BNSF was
negligent if it found that BNSF had failed to provide Kuhnel
with a reasonably safe place to work. We therefore find that
the Court of Appeals erred in concluding that the instructions
constituted plain error. Because our finding that the instruc­
tions were not plainly erroneous is dispositive, we need not
analyze BNSF’s remaining assignment of error. We reverse the
decision of the Court of Appeals.
R eversed.
Victoria A. Wisniewski, appellant, v. Heartland Towing,
Inc., et al., defendants and third-party plaintiffs,
appellees, and Lyman-R ichey Corporation,
doing business as R eady M ixed Concrete
Company, a Delaware corporation, et al.,
third -party defendants, appellees.
___ N.W.2d ___
Filed February 28, 2014. No. S-13-171.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of a jurisdictional issue is a
matter of law which requires an appellate court to reach a conclusion independent
from the trial court’s decision.
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Order vacated, and appeal dismissed.
Robert S. Sherrets and James D. Sherrets, of Sherrets, Bruno
& Vogt, L.L.C., for appellant.
Christopher P. Welsh, of Welsh & Welsh, P.C., L.L.O., pro se.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Nebraska Advance Sheets
WISNIEWSKI v. HEARTLAND TOWING 549
Cite as 287 Neb. 548Heavican, C.J.
INTRODUCTION
Christopher P. Welsh of Welsh & Welsh, P.C., L.L.O., rep­
resented appellant Veronica A. Wisniewski in a negligence suit
against Heartland Towing, Inc. After judgment was entered
against Heartland Towing, Welsh orally motioned to be paid
attorney fees and costs from the judgment. The district court
granted the motion. Wisniewski appeals. We dismiss.
BACKGROUND
Wisniewski was injured in a multiple vehicle accident on
June 9, 2006. Wisniewski braked to avoid hitting another
vehicle and was struck from behind by a tow truck operated
by Billy Pipkin and owned by Heartland Towing. On June 5,
2007, Wisniewski retained Welsh to represent her in a lawsuit
against Pipkin and Heartland Towing. Wisniewski and Welsh
entered into a contingency fee contract. After a jury trial, the
court entered a judgment of $35,006.23 in favor of Wisniewski
on June 6, 2012.
On October 12, 2012, Wisniewski, represented by new coun­
sel, filed a legal malpractice suit against Welsh alleging that
Welsh failed to adequately represent Wisniewski’s claims aris­
ing out of the June 2006 automobile accident.
On January 23, 2013, Welsh made an oral motion for pay­
ment of attorney fees and costs in this, the underlying negli­
gence lawsuit. The district court granted the motion and autho­
rized the clerk of the district court to distribute $11,085.29
in attorney fees and $3,311.55 in costs to Welsh from the
judgment.
Wisniewski filed a motion to alter or amend the order. The
district court denied the motion and set a supersedeas bond.
Wisniewski appeals from the order denying her motion to alter
or amend. Welsh responds as “Movant-Appellee.”
ASSIGNMENTS OF ERROR
Wisniewski assigns the following errors of the district
court: (1) finding it had jurisdiction to hear Welsh’s motion,
(2) granting Welsh’s motion without an evidentiary hear­
ing, (3) finding Welsh was entitled to attorney fees, and
Nebraska Advance Sheets
550 287 NEBRASKA REPORTS
(4) denying Wisniewski’s motion to alter or amend and
stay proceedings.
STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, determination of a jurisdictional issue is a matter of
law which requires an appellate court to reach a conclusion
independent from the trial court’s decision.1
ANALYSIS
In her first assignment of error, Wisniewski asserts that the
district court erred in finding it had jurisdiction to hear Welsh’s
motion for attorney fees and costs.
Wisniewski argues that the motion was an effort to enforce a
contract and that, as such, Welsh was required to file a separate
lawsuit against Wisniewski. We reject this argument.
Neb. Rev. Stat. § 7-108 (Reissue 2012) states:
An attorney has a lien for a general balance of compen­
sation upon any papers of his client which have come into
his possession in the course of his professional employ­
ment; and upon money in his hands belonging to his cli­
ent, and in the hands of the adverse party in an action or
proceeding in which the attorney was employed from the
time of giving notice of the lien to that party.
We have repeatedly stated an attorney may file a petition in
intervention in the original action to enforce an attorney’s lien.2
Recently, in Meister v. Meister,3 we reiterated that interven­
tion is the proper method of enforcing an attorney’s lien in
the original action and explained that equity excuses the usual
requirement of intervening before trial as required by Neb.
Rev. Stat. § 25-328 (Reissue 2008). We also noted in Meister
that an attorney’s failure to intervene before arguing his lien
did not destroy the attorney’s entitlement to the lien.4
1
See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894(1999).
2
See, e.g., Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980).
3
Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007).
4
Id.Nebraska Advance Sheets
BRUNO v. METROPOLITAN UTILITIES DIST. 551
Cite as 287 Neb. 551In this case, Welsh never filed a petition in intervention.
Although Welsh claims to have filed the equivalent in a writ­
ten motion, no such motion appears in the record before this
court. At the time of his oral motion, Welsh was not a party
to the suit. Furthermore, Welsh stated at the hearing that he no
longer represented Wisniewski. Lacking subject matter juris­
diction, the court erred in deciding Welsh’s oral motion for
payment. We have stated that a ruling made in the absence of
subject matter jurisdiction is a nullity.5 We therefore vacate the
district court’s order granting Welsh’s oral motion and dismiss
the appeal.
Order vacated, and appeal dismissed.
Miller-Lerman, J., participating on briefs.
5
Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012); Hunt v. Trackwell,
262 Neb. 688, 635 N.W.2d 106 (2001); In re Estate of Andersen, 253 Neb.
748, 572 N.W.2d 93 (1998); Billups v. Scott, 253 Neb. 287, 571 N.W.2d
603 (1997).
Jason M. Bruno, appellant, v. Metropolitan Utilities
District et al., appellees, and Northern Natural
Gas Company, intervenor-appellee.
___ N.W.2d ___
Filed February 28, 2014. No. S-13-212.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre­
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
4. Contracts: Legislature. Competitive bids and public letting are unquestionably a
matter of legislative prerogative.
5. Statutes: Appeal and Error. The language of a statute is to be given its plain
and ordinary meaning, and an appellate court will not resort to interpreta­
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.