Carlson v. Allianz Versicherungs-AG ( 2014 )

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Jeremiah did not receive formal notice that he was the pur-
ported father until November 2011. The evidence indicates that
once he received notice, Jeremiah made attempts to contact
Dakota to discuss the pregnancy, which are confirmed by tele-
phone records. A caseworker with the adoption agency testified
that Jeremiah had asked her questions about the pregnancy so
that he could protect his parental rights.
The county court found that Dakota intentionally hid her
pregnancy and the birth of the baby from Jeremiah in an
attempt to procedurally bar him from objecting to the adoption.
This finding is not appealed by Dakota.
Considering the entire record as presented, we find that
competent evidence supports the county court’s finding that
Jeremiah was excused for not providing financial support dur-
ing Dakota’s pregnancy because of Dakota’s actions to not
include him in her pregnancy.
CONCLUSION
The county court’s finding that Dakota did not prove by
clear and convincing evidence that Jeremiah’s consent was not
required under § 43-104.22 is well supported by competent
evidence. The decision of the county court is affirmed.
Affirmed.
Carolyn Carlson and Richard Carlson, appellants, v.
Allianz Versicherungs-Aktiengesellschaft and
Does 1 through 50, inclusive, appellees.
___ N.W.2d ___
Filed March 7, 2014. No. S-13-492.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
3. Declaratory Judgments: Courts: Jurisdiction: Parties: Waiver. The presence
of necessary parties in declaratory judgment actions is jurisdictional and cannot
be waived, and if such persons are not made parties, then the district court has no
jurisdiction to determine the controversy.
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4. Jurisdiction. It is fundamental that a court has the power to determine whether it
has jurisdiction over the matter before it.
5. Actions: Parties. A dismissal based upon a failure to join a necessary party is a
dismissal of the action without prejudice.
6. Courts: Jurisdiction. In civil cases, a court of general jurisdiction has inherent
power to vacate or modify its own judgment at any time during the term in which
the court issued it.
7. Courts: Motions to Vacate: Time. Neb. Rev. Stat. § 25-2001(1) (Reissue 2008)
provides for the exercise of the inherent power to vacate after the end of the term
upon a motion filed within 6 months after the entry of the judgment.
8. Actions: Motions to Vacate: Service of Process. A proceeding to vacate a judg-
ment on grounds contained in Neb. Rev. Stat. § 25-2001(4) (Reissue 2008) shall
be by complaint, and on such complaint, a summons shall issue and be served as
in the commencement of an action.
9. Service of Process. The methods of service prescribed by the Hague Convention
are mandatory where service abroad to a person in a signatory country is
required.
10. Service of Process: Waiver. Under Neb. Rev. Stat. § 25-516.01 (Reissue 2008),
a voluntary appearance is the equivalent to service that waives a defense of insuf-
ficient service or process if the party requests general relief from the court on an
issue other than sufficiency of service or process, or personal jurisdiction.
11. Rules of the Supreme Court: Pleadings: Waiver. Neb. Ct. R. Pldg. § 6-1112(b)
explicitly provides that no defense or objection is waived by being joined with
one or more other defenses or objections in a responsive pleading or motion.
12. Motions to Dismiss: Jurisdiction: Rules of the Supreme Court: Pleadings.
When a motion to dismiss raises a defense under Neb. Ct. R. Pldg. § 6-1112(b)(6)
and any combination of § 6-1112(b)(2), (4), and (5), the court should consider
dismissal under § 6-1112(b)(2), (4), and (5) first and should consider dismissal
under § 6-1112(b)(6) only if it determines that it has jurisdiction and that process
and service of process were sufficient.
13. Equity. Equitable remedies are generally not available where there exists an
adequate remedy at law.
14. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
15. ____. An appellate court will not consider an issue on appeal that was not pre-
sented to or passed upon by the trial court.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Thomas G. Sundvold, of Sundvold Law Firm, P.C., L.L.O.,
and Raymond D. McElfish, of McElfish Law Firm, P.C.,
L.L.O., for appellants.
Kyle Wallor and Sarah F. Macdissi, of Lamson, Dugan & Murray,
L.L.P., for appellee Allianz Versicherungs-Aktiengesellschaft.
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Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Cassel, J.
I. INTRODUCTION
Twenty months after the district court dismissed the appel-
lants’ declaratory judgment action against an insurance com-
pany for failure to join a necessary party, the appellants filed a
complaint to vacate the judgment. The district court sustained
the insurance company’s motion to dismiss the complaint.
Because we conclude that (1) the time for exercise of the dis-
trict court’s inherent power to vacate its judgment had expired,
(2) the court lacked jurisdiction to vacate its judgment under
Neb. Rev. Stat. § 25-2001(4) (Reissue 2008) due to insuffi-
cient service of process on the insurance company, and (3) the
court did not err in declining to exercise its equitable power
to vacate where the appellants had an adequate remedy at law,
we affirm.
II. BACKGROUND
1. Underlying Lawsuit and
Bankruptcy Stay
In February 2005, the appellants, Carolyn Carlson and
Richard Carlson, were involved in a rollover collision while
driving their Chrysler PT Cruiser. The back of Carolyn’s seat
collapsed during the rollover, and she suffered a cervical frac-
ture and paralysis from the neck down. The Carlsons filed a
products liability action against Daimler-Chrysler Corporation
in the district court for Lancaster County, Nebraska.
In April 2009, prior to the scheduled trial date, Chrysler LLC
sought chapter 11 bankruptcy protection. The bankruptcy court
imposed an automatic stay, which stayed the Carlsons’ suit.
In May 2009, the Carlsons sought the bankruptcy court’s
relief from the automatic stay. In their motion, they alleged
that the state court proceeding was not connected to and would
not interfere with the bankruptcy case and that litigation in
the Nebraska state court would not prejudice the interests of
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other creditors and interested parties. Old Carco LLC and its
affiliated debtors and debtors in possession filed an objection.
(Daimler-Chrysler Corporation and Old Carco LLC, formerly
known as Chrysler LLC, will be referred to as “Chrysler”
in this opinion.) They alleged, among other things, that they
did not have “‘first-dollar’ insurance coverage with respect
to costs incurred defending against [the Carlsons’] specific
claim” and that Chrysler’s estate would be depleted by the
litigation of the lawsuit. The bankruptcy court denied the
Carlsons’ motion.
2. Suit Against Allianz
Allianz Versicherungs-Aktiengesellschaft (Allianz), a for-
eign insurance company, provided insurance to Chrysler. On
February 22, 2010, the Carlsons filed a complaint for declara-
tory relief against Allianz. This suit was also filed in the
district court for Lancaster County, Nebraska. The Carlsons
alleged that Allianz was an excess insurer obligated to “drop
down” and provide “first dollar coverage” to Chrysler because
Chrysler, which was partially self-insured, had become insol-
vent. The Carlsons alleged that Allianz had an immediate duty
to defend Chrysler in the underlying products liability action.
They requested judicial determination of the duties and obliga-
tions of Allianz. The Carlsons filed a praecipe directing the
clerk of the court to issue summons for service of process on
Allianz in Munich, Germany. Because Allianz is a German
entity, the district court entered an order authorizing a service
company to effect service of process on Allianz in Germany.
Allianz was thereafter served in Germany.
Allianz filed a motion to dismiss pursuant to Neb. Ct. R.
Pldg. § 6-1112(b)(6) (failure to state claim) and (7) (failure
to join necessary party). Allianz argued that Chrysler was a
necessary party, but the Carlsons disagreed. The district court
overruled the motion. The court reasoned that it could not, as a
matter of law, exclude the possibility that the insurance policy
contained terms and conditions whereby Chrysler would not be
a necessary party to the underlying accident.
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3. Bankruptcy Confirmation
Order and P lan Injunction
On April 23, 2010, the bankruptcy court entered an order
confirming a second amended joint plan of liquidation of
debtors and debtors in possession, as modified. The confir-
mation order, which had an effective date of April 30, stated
in part:
30. . . . In addition, as of the Effective Date, the
injunction imposed by Section III.E.4 of the Plan (the
“Plan Injunction”) will be deemed modified solely to the
extent necessary to (a) permit Tort Claimants to com-
mence, pursue or continue litigation to pursue applicable
insurance, including litigation against the Debtors’ insur-
ers, if any (“Insurance Litigation”); and (b) in connec-
tion therewith, to name one or more of the Debtors as
nominal defendants, with the naming of such nominal
defendants and such Insurance Litigation being solely
for the purpose of pursuing claims against and collec-
tion of payment of proceeds under any such insurance,
if any . . . .
31. Except as described in this paragraph and in para-
graph 30 above, the modification of the Plan Injunction
in the foregoing paragraph 30 shall not: (a) expand, limit
or otherwise impact in any way any rights of any Tort
Claimant, the applicable insurer, if any, the Debtors, the
Liquidation Trust, the Liquidation Trustee or any other
party with respect to any matter; (b) authorize, or be
deemed or construed to authorize, any Tort Claimant,
the applicable insurer or any other party to seek fur-
ther relief against the Debtors or the Liquidation Trust
or the Liquidation Trustee in any forum outside of the
Bankruptcy Court with respect to the Tort Claim; (c)
be deemed to modify the Plan Injunction to allow any
party to pursue any action, or attempt to enforce any
right, against the Debtors, the Liquidation Trust or the
Liquidation Trustee (including, but not limited to, seeking
(i) reimbursement of any amount, including any deduct-
ible amount, defense costs or expenses from the Debtors,
the Liquidation Trust or the Liquidation Trustee, (ii) any
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discovery from the Debtors, the Liquidation Trust or the
Liquidation Trustee with respect to the Debtors’ records,
personnel, assets and other information related thereto,
(iii) to compel the appearance or testimony of any of
the Liquidation Trust’s employees, officers, managers,
agents or other Representatives (in their capacities as
such) in the Insurance Litigation or (iv) otherwise to
compel the Liquidation Trust’s employees, officers, man-
agers, agents or other Representatives or counsel (in
their capacities as such) to participate in the Insurance
Litigation); or (d) limit the ability of the Debtors or the
Liquidation Trust to seek to include Tort Claims asserted
in the Chapter 11 Cases in any ADR Procedures in the
Bankruptcy Court.
4. Allianz’ Motion for
Summary Judgment
In October 2010, Allianz moved for summary judgment in
the suit initiated by the Carlsons against it. On March 8, 2011,
the district court entered an order sustaining Allianz’ motion.
The court examined the insurance policy and reasoned that
under its terms, Allianz’ “obligation to indemnify Chrysler
is only triggered after Chrysler has exhausted its $25 mil-
lion self[-]insured retention and Chrysler’s liability is fixed
by entry of final judgment.” The court found that the insur-
ance policy and any policy proceeds were part of Chrysler’s
bankruptcy estate and were subject to the automatic stay. The
district court stated, “Assuming arguendo the stay does not
apply, [Allianz] argues that Chrysler’s policy does not provide
drop[-]down coverage to the [Carlsons],” and proceeded to
engage in an analysis concerning drop-down coverage. The
court found that under the terms of the policy, Allianz was an
excess liability insurer and was not required to drop down and
provide coverage to Chrysler as a partially self-insured entity.
The court next addressed Allianz’ argument that Chrysler was
a necessary party as required by Neb. Rev. Stat. § 25-21,149
et seq. (Reissue 2008). The court determined that Chrysler
was a necessary party, reasoning that Allianz would be preju-
diced in being forced to litigate the issues without Chrysler.
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The court further stated that the Carlsons’ “fight clearly
appears to be proper in the existing forum of the Bankruptcy
Court.” Ultimately, the court found that there were no genuine
issues of material fact and sustained Allianz’ motion for sum-
mary judgment.
Following the entry of the March 2011 summary judgment
dismissing the suit against Allianz, the Carlsons did not file an
appeal within 30 days, file a motion to alter or amend the judg-
ment within 10 days, or file a motion to vacate prior to the end
of the court’s term.
5. Bankruptcy Order
On August 17, 2012, the bankruptcy court entered a
“Stipulation and Agreed Order” which granted limited modi-
fication of the plan injunction with respect to the Carlsons.
The order recognized that the Carlsons had filed suit against
Allianz. The order stated that the April 2010 confirmation
order had modified the plan injunction to allow a tort claimant
to commence or continue litigation to pursue applicable insur-
ance and, in connection therewith, to name one or more of the
debtors as nominal defendants. The order then stated:
Nevertheless, the [Carlsons] have informed the Liquidation
Trust that, on account of the Plan Injunction, the Trial
Court will not permit the Insurance Litigation to proceed
against Allianz . . . absent an order from the Bankruptcy
Court modifying the Plan Injunction, to the extent neces-
sary, to permit the Insurance Litigation to proceed.
The bankruptcy debtors (which did not include Allianz) there-
fore stipulated that the Carlsons could amend the complaint
against Allianz to name Chrysler as a nominal defendant, con-
sistent with paragraph 31 of the confirmation order.
6. Complaint to Vacate
On November 15, 2012, the Carlsons filed a complaint to
vacate the March 2011 summary judgment. They submitted
the following “new facts” for the district court’s consideration,
which were based on the bankruptcy court’s August 2012
order: (1) The plan injunction was amended to permit the con-
tinued prosecution of the declaratory judgment action against
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Allianz and to permit the Carlsons to amend the complaint to
name Chrysler as a nominal defendant; (2) the excess policy
of Allianz is not the property of Chrysler, and the plan injunc-
tion was amended to permit this litigation to proceed against
Allianz and its excess insurance policy to determine whether
Allianz owes coverage for the loss involving the Carlsons;
(3) the self-insured retention of Chrysler has been depleted
through payment of claims in the bankruptcy proceeding; and
(4) the amendment of the plan injunction allowing this action
to proceed against Allianz lifted the automatic stay of the bank-
ruptcy court so that this action can be litigated and decided on
its merits.
The Carlsons sought to have the summary judgment vacated
under § 25-2001 or under the court’s independent equity juris-
diction to allow reinstatement of the case so that the Carlsons
could amend the complaint to name Chrysler as a nomi-
nal defendant.
Allianz moved to dismiss the Carlsons’ complaint to vacate.
Allianz alleged that the complaint should be dismissed pursu-
ant to § 6-1112(b)(5) because the Carlsons’ service of process
violated both Nebraska and international law. The Carlsons
had served summons by certified mail on Allianz’ attorney in
Omaha, Nebraska. Counsel for Allianz submitted an affidavit
stating that he is not the registered agent for Allianz and that he
has not been authorized to accept, sign for, or receive service
of process on Allianz’ behalf. Allianz also alleged that dis-
missal was warranted under § 6-1112(b)(6) for failure to state a
claim upon which relief may be granted.
7. District Court’s Order
The district court entered a 22-page order sustaining Allianz’
motion to dismiss. The court reasoned that the plain language
of § 25-2001(1) provides for relief within the court’s same
term or 6 months after entry of the court’s own judgment or
order, but that the statute “does not provide for relief after
a court allegedly ‘gains’ jurisdiction from an outside court
order.” The court stated that the August 2012 order provided
for relief that the Carlsons possessed at the time of Allianz’
summary judgment motion, i.e., naming Chrysler as a nominal
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defendant for purposes of pursuing insurance claims. The court
concluded that it did not gain anything with the bankruptcy
court’s August 2012 order, because nothing had changed with
regard to the excess policy and the self-insured retention of
$25 million, and that thus, the Carlsons could not acquire relief
under the inherent powers of the court.
The court determined that the motion to vacate was pro-
cedurally defective under § 25-2001(4), because the Carlsons
did not issue and serve summons on Allianz. Assuming for
the sake of argument that the Carlsons properly served the
complaint to vacate on Allianz, the court engaged in a lengthy
analysis regarding “newly discovered” evidence and concluded
that the Carlsons had not presented any such evidence.
Finally, the court determined that the Carlsons could not
avail themselves of the court’s independent equity jurisdic-
tion to vacate the summary judgment. The court observed that
the Carlsons had not appealed the entry of summary judg-
ment, filed a motion to alter or amend the judgment, filed a
motion to vacate the judgment prior to the end of the court’s
term, or requested to amend their complaint to name Chrysler
as a nominal defendant and that their arguments in sup-
port of vacating the summary judgment were the same ones
made at the time the summary judgment motion was argued
and submitted.
The Carlsons timely appealed, and we moved the case to our
docket under our statutory authority to regulate the caseloads
of the appellate courts of this state.1
III. ASSIGNMENTS OF ERROR
The Carlsons allege, consolidated and restated, that the dis-
trict court erred by (1) dismissing their complaint to vacate and
(2) issuing an advisory opinion regarding drop-down coverage.
IV. STANDARD OF REVIEW
[1] An appellate court will reverse a decision on a motion to
vacate only if the litigant shows that the district court abused
its discretion.2 But this case comes to us on an appeal from
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011).
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the district court’s sustaining of Allianz’ motion to dismiss
the complaint to vacate. A district court’s grant of a motion to
dismiss is reviewed de novo.3 Because the matter was disposed
based upon Allianz’ motion to dismiss, we review the issue
de novo.
[2] Because the Carlsons do not assign error to the district
court’s determination that Allianz’ motion was not converted to
a motion for summary judgment, we do not address that ques-
tion. In disposing of Allianz’ motion to dismiss, the court held
a hearing and received evidence. Section 6-1112(b) provides
that when matters outside the pleading are presented by the
parties and accepted by the trial court with respect to a motion
to dismiss under § 6-1112(b)(6), the motion “shall be treated”
as a motion for summary judgment as provided in Neb. Rev.
Stat. §§ 25-1330 to 25-1336 (Reissue 2008) and the parties
shall be given reasonable opportunity to present all material
made pertinent to such a motion by statute.4 We have noted
that a court may take judicial notice of matters of public record
without converting a § 6-1112(b)(6) motion to dismiss into a
motion for summary judgment.5 The evidence received by the
court concerning the § 6-1112(b)(6) motion to dismiss included
pleadings and briefs in the instant case, pleadings in the under-
lying lawsuit, motions and orders in the bankruptcy court,
and the Allianz insurance policy. The district court considered
the question and concluded that receipt of these materials did
not result in a conversion of the motion. To be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error.6 The Carlsons did not assign or argue that
the district court erred in this regard. Thus, we do not consider
whether the motion to dismiss was transformed into a motion
for summary judgment.
3
Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236
(2013).
4
DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).
5
See id.
6
Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
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V. ANALYSIS
Before addressing the Carlsons’ assignments of error, we
pause to clarify the effect of the March 2011 judgment and
ensuing developments.
The critical matter decided by the March 2011 judgment
was Chrysler’s status as a necessary party to the Carlsons’
suit against Allianz. The court recounted that a stay had been
imposed by the bankruptcy court, thus barring the commence-
ment or prosecution of an action against Chrysler without
an order from the bankruptcy court lifting or modifying the
automatic stay. The court observed that the parties disagreed
regarding whether Chrysler was a necessary party, with the
Carlsons taking the position that Chrysler was not a neces-
sary party. According to the order, the Carlsons argued that
Chrysler’s interests were wholly protected in its absence by
Allianz’ presence and that there was no controversy between
Allianz and Chrysler in this action because the present law-
suit would not adjudicate any rights between Chrysler and
the injured parties. The court determined that Chrysler was a
necessary party.
[3-5] The determination that Chrysler was a necessary party
was jurisdictional and became a final order dismissing the
Carlsons’ action without prejudice. The presence of necessary
parties in declaratory judgment actions is jurisdictional and
cannot be waived, and if such persons are not made parties,
then the district court has no jurisdiction to determine the
controversy.7 It is fundamental that a court has the power to
determine whether it has jurisdiction over the matter before it.8
When the district court determined that Chrysler was a neces-
sary party and implicitly determined that the Carlsons were
not going to ask to bring Chrysler in as a party (or could not
do so because of the bankruptcy stay), dismissal—achieved
in this case by sustaining Allianz’ motion for summary judg-
ment—was appropriate. This was a final order9 from which
7
Dunn v. Daub, 259 Neb. 559, 611 N.W.2d 97 (2000).
8
See Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).
9
See Neb. Rev. Stat. § 25-1902 (Reissue 2008).
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no appeal was taken. And it is clear that a dismissal based
upon a failure to join a necessary party is a dismissal of the
action without prejudice.10 Thus, the March 2011 order dis-
missing the Carlsons’ suit against Allianz was a dismissal
without prejudice.
Subsequently, the Carlsons obtained explicit permission
from the bankruptcy court to bring Chrysler in as a nominal
party in this declaratory judgment action against Allianz. But
this did not change the situation in effect at the time of the
March 2011 judgment.
With this background, we turn to the errors assigned by
the Carlsons.
1. Dismissal of Complaint
to Vacate
(a) Inherent Power to Vacate
[6] In civil cases, a court of general jurisdiction has inher-
ent power to vacate or modify its own judgment at any time
during the term in which the court issued it.11 The applicable
district court rule provides that the term of the court is the
calendar year.12 Here, the Carlsons’ November 2012 com-
plaint sought to vacate the March 2011 judgment. Because the
Carlsons did not file their complaint to vacate within the 2011
calendar year, the court lacked the inherent power to vacate
the judgment.
[7] The district court’s inherent power to vacate the judgment,
as extended by statute, had also expired. Section 25-2001(1)
provides for the exercise of the inherent power to vacate after
the end of the term upon a motion filed within 6 months after
the entry of the judgment. Because the judgment was entered
in March 2011 and the Carlsons did not file their complaint
to vacate until November 2012, the court’s inherent power to
vacate as extended by § 25-2001(1) had expired.
10
See Taylor Oil Co. v. Retikis, 254 Neb. 275, 575 N.W.2d 870 (1998).
11
Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
12
See Rules of Dist. Ct. of Third Jud. Dist. 3-1 (rev. 1999).
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(b) Vacation of Judgment
Under § 25-2001(4)
[8] The Carlsons argue that the district court erred in finding
that their complaint to vacate was procedurally defective under
§ 25-2001(4). A proceeding to vacate a judgment on grounds
contained in § 25-2001(4) “shall be by complaint,” and “[o]n
such complaint a summons shall issue and be served as in the
commencement of an action.”13 We focus on the requirement
for service of process, as it is dispositive of the Carlsons’ argu-
ment relying upon § 25-2001(4).
[9] At oral argument, counsel for the Carlsons conceded
that the complaint to vacate was not properly served under the
Hague Convention.14 The methods of service prescribed by the
Hague Convention are mandatory where service abroad to a
person in a signatory country is required.15 Allianz concededly
falls within the protection of the Hague Convention. Rather
than implementing the procedures prescribed by the Hague
Convention, the Carlsons filed a praecipe with their complaint
to vacate which directed the clerk of the court to issue sum-
mons and deliver it to Allianz’ attorney via certified mail at
the attorney’s Omaha office. By conceding their failure to
utilize the Hague Convention’s procedures, they acknowledged
that their attempt to serve Allianz’ Nebraska counsel was not
sufficient to comply with § 25-2002. But this does not end
our analysis under § 25-2001(4), because the Carlsons argue
that Allianz waived the necessity of service of process on the
motion to vacate.
In the Carlsons’ argument on waiver, they assert that Allianz
did so by voluntarily appearing on other issues before the court,
and they rely upon our decision in Doe v. Board of Regents.16
Allianz agrees that Doe controls, but disputes the Carlsons’
13
Neb. Rev. Stat. § 25-2002 (Reissue 2008).
14
See Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361.
15
See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.
Ct. 2104, 100 L. Ed. 2d 722 (1988).
16
Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
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interpretation of our Doe opinion. We therefore summarize our
decision in that case.
[10] In Doe, John Doe sued the Board of Regents of the
University of Nebraska, the University of Nebraska Medical
Center (UNMC), and eight UNMC faculty members in each
individual’s official and individual capacities. Doe served
summons at the Attorney General’s office. The defendants
moved to dismiss under the following subsections of § 6-1112:
subsection (b)(1) (lack of jurisdiction), subsection (5) (insuf-
ficiency of service), and subsection (6) (failure to state claim).
At the hearing on the motion to dismiss, the defendants stated
that they were not challenging service on them in their official
capacities but that the UNMC faculty members had not been
properly served in their individual capacities. Doe argued that
the defendants all made voluntary appearances at the hearing
on their motion to dismiss. Under Neb. Rev. Stat. § 25-516.01
(Reissue 2008), a voluntary appearance is the equivalent to
service that waives a defense of insufficient service or proc­
ess if the party requests general relief from the court on an
issue other than sufficiency of service or process, or personal
jurisdiction.17 We observed that the defendants affirmatively
pled insufficiency of service of process under § 6-1112(b)(5)
and voluntarily appeared in their individual capacities only to
object to the sufficiency of process and that “[w]hile they also
moved to dismiss Doe’s complaint under other subsections of
[§ 6-11]12(b), the defendants, in their official capacities, did
not waive a defense or objection by joining one or more other
[§ 6-11]12(b) defenses or objections in a responsive motion.”18
We summarized as follows: “[S]tate officials, in their indi-
vidual capacities, can challenge service while still reserving
the right, in their official capacities, to contest a plaintiff’s
claims on other grounds.”19 Although Allianz was not being
sued in more than one capacity, we agree with Allianz’ read-
ing of Doe.
17
Id.
18
Id. at 509, 788 N.W.2d at 280.
19
Id.
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[11,12] Allianz did not waive its defense of insufficient
service of process under § 6-1112(b)(5) by asserting a defense
of failure to state a claim under § 6-1112(b)(6) in the same
motion. Section 6-1112(b) explicitly provides that “[n]o
defense or objection is waived by being joined with one or
more other defenses or objections in a responsive pleading or
motion.” And we have stated that when a motion to dismiss
raises a defense under § 6-1112(b)(6) and any combination
of § 6-1112(b)(2), (4), and (5), the court should consider
dismissal under § 6-1112(b)(2), (4), and (5) first and should
consider dismissal under § 6-1112(b)(6) only if it determines
that it has jurisdiction and that process and service of process
were sufficient.20 Here, Allianz affirmatively pled insufficiency
of service of process under § 6-1112(b)(5) and asked the court
during the hearing to “take judicial notice of the court file,
specifically with respect to the information in the court file
about the serv­ce of process of the complaint to vacate [the
i
court’s] prior order.” We conclude that Allianz did not waive
this defense by also offering exhibits and argument in sup-
port of its defense that the complaint to vacate on grounds
other than under § 25-2001(4) failed to state a claim upon
which relief could be granted. Because the Carlsons did not
properly serve Allianz under § 25-2002, we do not consider
their argument concerning newly discovered evidence under
§ 25-2001(4).
(c) Equitable Power to Vacate
[13] The Carlsons claim that the district court could have
properly invoked its equity jurisdiction and vacated the March
2011 judgment. But equitable remedies are generally not avail-
able where there exists an adequate remedy at law.21 Following
the court’s judgment in March 2011, the Carlsons did not (1)
appeal the order; (2) move to alter or amend the judgment;
(3) move to vacate the judgment on or before December 31,
2011; or (4) request to amend their complaint in order to name
Chrysler as a nominal defendant. Further, after obtaining the
20
See Doe v. Board of Regents, supra note 16.
21
Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).
Nebraska Advance Sheets
CARLSON v. ALLIANZ VERSICHERUNGS-AG 643
Cite as 287 Neb. 628
bankruptcy court’s relief from the automatic stay, the Carlsons
could have filed a new declaratory judgment action which
named Chrysler as a nominal defendant rather than seeking to
vacate the March 2011 judgment. Because the Carlsons had
an adequate remedy at law, they were not entitled to equitable
relief from the judgment.
2. Advisory Opinion
[14,15] The Carlsons also argue that the district court
improperly issued an advisory opinion and that the court’s
conclusion that there is no possibility of drop-down coverage
until Chrysler’s liability is fixed by entry of a final judgment
was erroneous. However, a determination of whether the
court improperly issued an advisory opinion is not necessary
to our adjudication. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it.22 Further, this issue was not
raised to the district court. An appellate court will not con-
sider an issue on appeal that was not presented to or passed
upon by the trial court.23 Accordingly, we decline to address
this assigned error.
VI. CONCLUSION
We conclude that the time for exercise of the district court’s
inherent power to vacate its judgment—both within term and as
extended by § 25-2001(1)—had expired. Because the Carlsons
did not properly serve Allianz as required by § 25-2002,
the court lacked jurisdiction to vacate its judgment under
§ 25-2001(4). Because the Carlsons had an adequate remedy
at law, we find no error in the district court’s sustaining of
Allianz’ motion to dismiss the Carlsons’ attempt to invoke
the district court’s equitable power to vacate. Accordingly,
we affirm.
Affirmed.
Miller-Lerman, J., participating on briefs.
22
Lang v. Howard County, ante p. 66, 840 N.W.2d 876 (2013).
23
First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465
(2013).