Schaaf v. Schaaf , 312 Neb. 1 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/29/2022 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1Daniel D. Schaaf and Ronald R. Schaaf,
Copersonal Representatives of the Estate
of Lorene M. Schaaf, appellants, v.
Tommy B. Schaaf and Susan
M. Schaaf, appellees.
___ N.W.2d ___
Filed July 22, 2022. No. S-21-251.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.
2. Motions to Vacate: Time: Appeal and Error. The decision to vacate
an order any time during the term in which the judgment is rendered is
within the discretion of the court; such a decision will be reversed only
if it is shown that the district court abused its discretion.
3. Judgments: Words and Phrases. A judicial abuse of discretion exists
when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.
4. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
5. 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 matter before it.
6. Dismissal and Nonsuit: Final Orders: Appeal and Error. Generally,
an order of dismissal is a final, appealable order.
7. Final Orders. Under Neb. Rev. Stat. § 25-1902(1)(a) (Cum. Supp.
2020), an order affecting a substantial right in an action, when such
order in effect determines the action and prevents a judgment, is a
final order.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 18. Final Orders: Words and Phrases. A substantial right is an essential
legal right, which includes those legal rights that a party is entitled to
enforce or defend.
9. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to an appellant before the order from
which an appeal is taken.
10. Final Orders. An order that completely disposes of the subject mat-
ter of the litigation in an action or proceeding both is final and affects
a substantial right because it conclusively determines a claim or
defense.
11. Dismissal and Nonsuit. Generally, under Neb. Rev. Stat. §§ 25-601(1)
(Reissue 2016) and 25-602 (Cum. Supp. 2020), a plaintiff has the
right to dismiss an action without prejudice before final submission of
the case.
12. ____. After a final submission, dismissal without prejudice requires
leave of court.
13. Actions. A final submission of an action contemplates submission upon
both law and facts, and it only exists when nothing remains to be done
to render it complete.
14. Summary Judgment: Dismissal and Nonsuit. A summary judgment
motion can be a final submission that will prevent voluntary dismissal
under Neb. Rev. Stat. § 25-601 (Reissue 2016).
15. Dismissal and Nonsuit. Under Neb. Rev. Stat. § 25-602 (Cum. Supp.
2020), a plaintiff loses the right to voluntarily dismiss without preju-
dice when a counterclaim or setoff has been filed by the oppos-
ing party.
16. Dismissal and Nonsuit: Jurisdiction. An order of dismissal or dis-
missal by operation of law divests a court of jurisdiction to take any
further action in the matter.
17. Dismissal and Nonsuit. When a case is voluntarily dismissed by a
party, the controversy between the parties upon which a trial court may
act ends.
18. Dismissal and Nonsuit: Jurisdiction: Pleadings: Motions to Vacate.
A court treats a motion to reinstate a case after an order of dismissal as
a motion to vacate the order, and a court generally has jurisdiction over
a motion to vacate an order of dismissal and reinstate a case.
Appeal from the District Court for Holt County: Mark
D. Kozisek, Judge. Reversed and remanded for further
proceedings.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1Bradley D. Holbrook and Elizabeth J. Klingelhoefer, of
Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for
appellants.
Lyle Joseph Koenig, of Koenig Law Firm, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
Appellants appeal from a dismissal entered by the district
court upon the court’s determination that the case had been
improperly reinstated after they voluntarily dismissed their
case without prejudice. For the reasons set forth herein, we
reverse the findings of the district court and remand the cause
for further proceedings consistent with this opinion.
BACKGROUND
Daniel D. Schaaf and Ronald R. Schaaf (Appellants) are
copersonal representatives for the estate of their mother,
Lorene M. Schaaf. In February 2017, Appellants filed a com-
plaint against their brother, Tommy B. Schaaf, and his wife,
Susan M. Schaaf (Appellees), which asserted two counts of
undue influence and one count of fraud in the inducement
regarding the devise of certain real estate by Lorene.
Appellees filed an amended answer that affirmatively alleged
a codicil executed by Lorene was the product of undue influ-
ence. Appellees’ amended answer also requested that the court
award them “their costs, including attorney fees, and any other
relief that is just.”
In May 2018, Appellees filed a motion for summary judg-
ment, which was granted in part and denied in part. Specifically,
the court dismissed one count of fraud in the inducement with
prejudice, but overruled Appellees’ motion as to the remain-
ing counts.
On August 15, 2018, pursuant to Neb. Rev. Stat. § 25-601(Reissue 2016), Appellants filed a voluntary dismissal of the
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1action without prejudice. Appellees did not file an objection
to the voluntary dismissal. On August 20, the trial court issued
a journal entry effectively treating Appellants’ dismissal as a
motion dismissing without prejudice. The court then granted
the motion and ordered the complaint be dismissed without
prejudice, with both Appellants and Appellees to pay their
own costs.
Shortly after Appellants filed their dismissal, they com-
menced a new action in the county court for Holt County,
where they asserted two counts of undue influence and one
count of fraud in the inducement regarding the same sub-
ject matter. The county court subsequently determined that
it lacked subject matter jurisdiction over the claims and dis-
missed the complaint.
In February 2019, Appellants returned to the district court
and filed a motion to vacate/reinstate, requesting that the dis-
trict court vacate its August 2018 journal entry and reinstate
the case pursuant to Neb. Rev. Stat. § 25-2001(1) (Reissue
2016). Over Appellees’ objection, the court sustained the
motion to vacate/reinstate, noting that the pleadings suggested
that Appellants had intended to pursue the same course of
litigation in the county court and that Appellees would “derive
great benefit by not allowing reinstatement of the case.” In
November 2020, Appellees filed an amended motion for sum-
mary judgment. The motion was heard in December 2020.
In March 2021, rather than ruling on Appellees’ amended
motion for summary judgment, the district court entered an
order dismissing Appellants’ case. The court reasoned that
under § 25-601, a plaintiff may dismiss an action before final
submission of the case to the court or jury and that therefore,
Appellants did not need permission or an order from the court
before the voluntary dismissal became effective. The court
therefore determined that its August 2018 journal entry grant-
ing dismissal without prejudice was “a mere gratuity.” As a
result, the court found that Appellants’ voluntary dismissal
effectively ended the litigation as soon as it was filed and that
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312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1any subsequent order from the court purporting to dismiss or
reinstate the case was a nullity. The court stated that Appellants
must commence a new civil action by filing a petition or
complaint because neither the purported reinstatement by the
court nor the filing of the amended complaint constituted the
filing of a new lawsuit. Thus, the court concluded the case
“[stood] dismissed pursuant to [Appellants’] voluntary dis-
missal.” Appellants appeal.
ASSIGNMENT OF ERROR
Appellants assign, restated and consolidated, that the district
court erred in dismissing their case based on their previously
filed voluntary dismissal without prejudice.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision. 1
[2,3] The decision to vacate an order any time during the
term in which the judgment is rendered is within the discre-
tion of the court; such a decision will be reversed only if it is
shown that the district court abused its discretion. 2 A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 3
[4] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 4
1
In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
2
Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).
3
Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466, 915
N.W.2d 58 (2018).
4
Id.-6-
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1ANALYSIS
Jurisdiction
[5,6] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 5 Generally, an order of
dismissal is a final, appealable order. 6
[7-10] Under Neb. Rev. Stat. § 25-1902(1)(a) (Cum. Supp.
2020), an order affecting a substantial right in an action, when
such order in effect determines the action and prevents a judg-
ment, is a final order. A substantial right is an essential legal
right, which includes those legal rights that a party is entitled
to enforce or defend. 7 A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant before the
order from which an appeal is taken. 8 An order that completely
disposes of the subject matter of the litigation in an action or
proceeding both is final and affects a substantial right because
it conclusively determines a claim or defense. 9
Here, the district court’s March 2021 order of dismissal
completely disposed of the subject matter of the litigation and,
as such, was a final, appealable order over which we have
jurisdiction.
§ 25-601
Having determined that we have jurisdiction over this
appeal, we move to the merits of the case. Appellants argue
that the district court erred in dismissing their case because,
at the time they filed their voluntary dismissal, a final sub-
mission had occurred, which divested Appellants of their
5
Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
6
Id.7
See, Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012);
State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).
8
Big John’s Billiards, supra note 7.
9
Id.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1statutory ability to voluntarily dismiss their case under
§ 25-601. We agree.
[11-13] The ability of a plaintiff to dismiss his or her claim(s)
without prejudice is codified in § 25-601 and Neb. Rev. Stat.
§ 25-602 (Cum. Supp. 2020). Generally, under these statutes,
a plaintiff has the right to dismiss an action without prejudice
before final submission of the case, subject to compliance
with conditions precedent as may be imposed by the court. 10
We have stated that the statutory right to voluntary dismissal
under §§ 25-601 and 25-602 is not a matter of judicial grace
or discretion, but neither is it absolute or without limitation. 11
After a final submission, dismissal without prejudice requires
leave of court. 12 A final submission of an action contemplates
10
Beals v. Western Union Telegraph Co., 53 Neb. 601, 74 N.W. 54 (1898);
Sharpless v. Giffen, 47 Neb. 146, 66 N.W. 285 (1896). See Holste v.
Burlington Northern RR. Co., 256 Neb. 713, 730, 592 N.W.2d 894,
907 (1999) (holding plaintiff’s right to voluntary dismissal before final
submission “is not absolute”); Horton v. State, 63 Neb. 34, 88 N.W. 146(1901). See, also, Sheedy v. McMurtry, 44 Neb. 499, 502, 63 N.W. 21, 23
(1895) (explaining “the right of a plaintiff to dismiss at any time during
the pendency of a cause, as a general proposition, must be qualified, and is
not absolute in the sense that it takes the subject without the control of the
court in which the cause is pending, so that it cannot, within its discretion,
impose the condition of the payment of costs as obligatory and precedent
to a dismissal of the action”).
11
Millard Gutter Co., supra note 3; Holste, supra note 10.
12
See Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948). See, e.g.,
Millard Gutter Co., supra note 3; Collection Specialists v. Vesely, 238
Neb. 181, 469 N.W.2d 549 (1991) (plaintiff loses statutory right to dismiss
without prejudice after final submission, but court has discretion to allow
such dismissal depending on facts and circumstances of case); Pettegrew
v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935) (same); Knaak v. Brown,
115 Neb. 260, 212 N.W. 431 (1927) (holding dismissal of action after final
submission must be by leave of court and cannot be accomplished by mere
act of plaintiff alone); Nelson v. Omaha & C. B. Street R. Co., 93 Neb.
154, 139 N.W. 860 (1913); Bee Building Co. v. Dalton, 68 Neb. 38, 93
N.W. 930 (1903) (plaintiff loses right to voluntarily dismiss action without
prejudice after there has been final submission, but court has discretion to
permit dismissal).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1submission upon both law and facts, and it only exists when
nothing remains to be done to render it complete. 13
In support of their argument that a ruling on a motion
for summary judgment is a final submission which deprives
a party from being able to voluntarily dismiss their case,
Appellants direct us to our recent decision in Millard Gutter
Co. v. American Family Ins. Co. 14 In Millard Gutter Co., the
defendant prevailed on summary judgment regarding three of
the plaintiff’s four claims. Then, on the morning of trial, the
plaintiff filed a voluntary dismissal under § 25-601. The volun-
tary dismissal was not styled as a motion, but the district court
held a hearing to determine the effect of the filing. Ultimately,
the court entered a judgment that dismissed without prejudice
the claim set for trial, made final the prior summary judgments
entered in favor of the defendant, and taxed certain costs to
the plaintiff. The plaintiff appealed, arguing that once it filed
the voluntary dismissal, the court’s jurisdiction over the case
terminated and the court lacked the ability to tax costs. The
district court rejected the plaintiff’s argument, finding that
there was a final submission that precluded voluntary dismissal
under § 25-601 and that there was a setoff that precluded
voluntary dismissal under § 25-602.
[14] On appeal, we held in Millard Gutter Co. that a sum-
mary judgment motion can be a final submission that will pre-
vent voluntary dismissal under § 25-601. We also found that
due to the granting of the appellee’s motion for partial summary
judgment, there was a final submission regarding some, but not
all, of the appellant’s claims in the case. As such, because the
summary judgments in favor of the appellee were the product
of final submissions that had neither been revised nor set aside,
we concluded that the appellant lacked the statutory authority
under § 25-601 to voluntarily dismiss those claims.
13
See, Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d
435 (1980); Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 259
N.W. 367 (1935).
14
Millard Gutter Co., supra note 3.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1As described by one commentator, our holding in Millard
Gutter Co. was the correct conclusion because a “plaintiff
should not be allowed to dismiss claims without prejudice after
the claims have been rejected. Otherwise, the plaintiff could
avoid an adverse decision on one or more claims by simply
dismissing those claims without prejudice and reasserting them
in a new action.” 15 Additionally, Nebraska is far from alone
in treating summary judgments as final submissions that can
limit a plaintiff’s statutory right to voluntarily dismiss without
prejudice. 16
Likewise, here, the district court granted partial summary
judgment in favor of Appellees on their claim of fraud in the
inducement. Therefore, under the reasoning set forth in Millard
Gutter Co., there was a final submission regarding one, but
not all, of Appellants’ claims. Accordingly, because the partial
summary judgment in favor of Appellees was the product of
a final submission that had neither been revised nor set aside,
Appellants had no statutory right under § 25-601 to voluntarily
15
See, John P. Lenich, Nebraska Civil Procedure § 34:4 at 1479 (2022).
16
See, e.g., Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995)
(holding that summary judgment is final submission, but court retains
discretion to grant voluntary dismissal without prejudice); Mary Morgan,
Inc. v. Melzark, 49 Cal. App. 4th 765, 57 Cal. Rptr. 2d 4 (1996) (holding
voluntary dismissal without prejudice not permitted as matter of right
after summary judgment hearing has commenced); Brandt v. Joseph
F. Gordon Architect, Inc., 998 P.2d 587 (Okla. 1999) (holding that
summary judgment is final submission of claim for purposes of voluntary
dismissal statute and forecloses plaintiff’s unfettered right to dismiss
claim without prejudice); Bio-Medical Applications, Inc. v. Coston, 272
Va. 489, 634 S.E.2d 349 (2006) (finding voluntary dismissal was untimely
when made after court announced ruling on defendant’s motion for
summary judgment; at that point, case had been submitted to court for
decision); Beritich v. Starlet Corporation, 69 Wash. 2d 454, 458, 418
P.2d 762, 764 (1966) (holding plaintiff loses right to voluntarily dismiss
without prejudice after motion for summary judgment has been ruled
upon, otherwise “[t]he summary judgment procedure, at least from the
defendant’s viewpoint, would become a virtual nullity if a plaintiff can
‘exit stage left’ upon hearing an adverse oral decision of the trial judge on
the summary judgment motion”).
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SCHAAF V. SCHAAF
Cite as 312 Neb. 1dismiss that claim without prejudice. Consequently, the district
court’s authority to make further rulings in the case was unaf-
fected by the filing of the voluntary dismissal.
The dissent of our learned colleague recognizes that a
court has discretion when considering whether to refuse to
dismiss a case and must consider the protection of any rights
which have accrued to the defendant. 17 The dissent goes on
to note that Appellees took no steps to seek the protection of
their rights and that therefore, Appellants’ dismissal should
have been absolute. However, the very fact that Appellees
could have taken steps to protect their rights and the court
could have entered an order preserving a counterclaim or the
restitution of property of which a party has been deprived
or ordering the recovery of Appellants’ costs makes it clear
that a plaintiff’s right to dismiss after a final submission is
not absolute.
For the sake of completeness, we note that our opinion
should not be construed as holding that a final submission on
one claim forecloses a plaintiff from voluntarily dismissing
other claims which have not yet been finally submitted. But
in this case, Appellants attempted to do much more than that;
they filed a voluntary dismissal purporting to dismiss the entire
action without prejudice, which necessarily included the fraud
claim which had been finally submitted and decided on sum-
mary judgment.
While the final submission on the fraud claim did not affect
whether Appellants could voluntarily dismiss their undue
influence claims, it did affect whether they could voluntarily
dismiss the entire action pursuant to § 25-601. In other words,
after one of several claims has been finally submitted, the
plaintiff retains the right under § 25-601 to voluntarily dis-
miss other claims which have not yet been finally submitted,
but they lose the statutory right to voluntarily dismiss the
entire action.
17
See Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865(2002).
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Nebraska Supreme Court Advance Sheets
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SCHAAF V. SCHAAF
Cite as 312 Neb. 1§ 25-602
[15] Appellants also argue that, pursuant to § 25-602, they
did not have a statutory right to dismiss their case because
Appellees included a counterclaim in their amended answer.
Under § 25-602, a plaintiff loses the right to voluntarily dis-
miss a claim without prejudice when a counterclaim or setoff
has been filed by the opposing party. Because we have already
determined that there was a final submission in this case that
divested Appellants of their statutory right to dismissal under
§ 25-601, we do not find it necessary to discuss whether a
counterclaim or setoff had been filed. An appellate court is not
obligated to engage in an analysis that is not needed to adjudi-
cate the case and controversy before it. 18
Reinstatement
Lastly, we consider Appellants’ argument that the trial court
had statutory authority to reinstate the case after the voluntary
dismissal was filed.
[16,17] Generally, an order of dismissal or dismissal by
operation of law divests a court of jurisdiction to take any fur-
ther action in the matter. 19 Moreover, when a case is voluntarily
dismissed by a party, the controversy between the parties upon
which a trial court may act ends. 20
[18] But, 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. 21
Additionally, under § 25-2001(1), this inherent power allows a
court to “vacate or modify its judgments or orders . . . after the
end of the term, upon the same grounds, upon a motion filed
within six months after the entry of the judgment or order.” A
18
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128(2022).
19
Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).
20
See Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678
N.W.2d 726 (2004).
21
Molczyk, supra note 19.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1court treats a motion to reinstate a case after an order of dis-
missal as a motion to vacate the order, and a court generally
has jurisdiction over a motion to vacate an order of dismissal
and reinstate a case. 22
Here, we have already determined that because Appellants
did not have a statutory right to dismissal under § 25-601,
the district court’s authority to make further rulings in the
case was unaffected by the filing of the voluntary dismissal.
Additionally, Appellants timely filed their motion to reinstate
under § 25-2001(1).
Moreover, although the district court “granted” Appellants’
motion to dismiss, the court also had jurisdiction over the
motion to reinstate and properly exercised its discretion in
vacating the dismissal and reinstating the case. 23 Thus, its sub-
sequent order reinstating the case was not a nullity, and the dis-
trict court erred in determining that the case “[stood] dismissed
pursuant to [Appellants’] voluntary dismissal.”
CONCLUSION
For the reasons set forth herein, the order of the district
court is reversed and the cause is remanded for further pro-
ceedings consistent with this opinion.
Reversed and remanded for
further proceedings.
22
Id.
23
See Horton v. State, 63 Neb. 34, 88 N.W. 146 (1901) (holding court has
discretion to vacate and set aside plaintiff’s voluntary dismissal).
Cassel, J., dissenting.
The key question, it seems to me, is whether a previous
order granting a partial summary judgment precludes a plaintiff
from voluntarily dismissing an entire action as a matter of right
with the acquiescence of the defendant. Because I conclude
that it does not, I would affirm the district court’s order.
The dismissal was patently clear. It was entitled “Dismissal
Without Prejudice.” I quote its body in full: “COMES NOW
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SCHAAF V. SCHAAF
Cite as 312 Neb. 1the [copersonal representatives], by and through counsel, and
hereby dismisses the above‑captioned matter, without preju-
dice, pursuant to Neb. Rev. Stat. § 25‑601 [(Reissue 2016)].”
(Emphasis in original.)
The copersonal representatives’ complaint had asserted three
causes of action against Tommy B. Schaaf and Susan M.
Schaaf. One claimed that they unduly influenced Lorene M.
Schaaf to deed four parcels of real estate to them in February
2009. Another alleged that they unduly influenced her to deed
another tract of real estate in September 2014. And the third
claimed that the two deeds were induced by their fraudulent
representations.
In May 2018, Tommy and Susan moved for summary judg-
ment on all claims. In July, the court denied their motion
in all but one respect; it granted summary judgment on the
fraud‑in‑the‑inducement claim, but only as to the February
2009 deed. In other words, the court denied summary judgment
except as to part of a single claim.
Shortly thereafter, in search of a more favorable forum in
county court, the copersonal representatives filed their dis-
missal in district court. A few days later, the district court
entered an order characterizing the dismissal as a “motion”
and stating in relevant part: “Motion granted, and complaint
dismissed without prejudice. Each party ordered to pay their
own costs.”
Tommy and Susan did not resist the dismissal or seek to
preserve any aspect of the order partially granting summary
judgment.
In February 2019, after apparently concluding that the
county court was not a better forum, the copersonal represent­
atives sought to vacate the district court’s order of dismissal
in order to resume their litigation there. Tommy and Susan
resisted. Over their objection, the district court initially rein-
stated the complaint. Later, the court recognized the effect
of the prior unilateral dismissal pursuant to Neb. Rev. Stat.
§ 25‑601 (Reisue 2016).
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SCHAAF V. SCHAAF
Cite as 312 Neb. 1Nebraska statutes have always permitted a plaintiff to dis-
miss an action without prejudice to a future action “before the
final submission of the case to the jury, or to the court, where
the trial is by the court.” 1 After final submission, a plaintiff
must obtain leave of the court to dismiss an action with-
out prejudice. 2
Long ago, this court recognized that there is an obvious dan-
ger in allowing dismissal as a matter of right after submission
to the court. The danger is that “litigation would become inter-
minable, because a party who was led to suppose a decision
would be adverse to him could prevent such decision and begin
anew, thus subjecting the defendant to annoying and contin­
uous litigation.” 3 And “it would be a reproach to our judicial
system to permit a defeated litigant to abandon his case and
sue again, thus harassing the defendant and wasting money
raised by taxation for public purposes.” 4
This court has stated that a plaintiff “‘has an absolute right
to dismiss’” an action prior to final submission, subject to
compliance with conditions precedent as may be imposed
by the court. 5 This court has called it “an unqualified right”
that can be exercised “without leave of court.” 6 On the other
hand, this court has declared that a plaintiff’s right to volun-
tary dismissal is not absolute, whether sought before or after
final submission. 7
1
Rev. Stat. ch. 1 § 430, p. 465 (1866). Cf. § 25‑601. See, also, Neb. Rev.
Stat. § 25‑602 (Cum. Supp. 2020).
2
See State v. Scott, 22 Neb. 628, 36 N.W. 121 (1888).
3
Id. at 640, 36 N.W. at 126.
4
Bee Building Co. v. Dalton, 68 Neb. 38, 42, 93 N.W. 930, 931 (1903).
5
Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 512, 259 N.W.
367, 369 (1935).
6
Werner v. Werner, 186 Neb. 558, 559‑60, 184 N.W.2d 646, 647 (1971).
7
See, Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d
894 (1999); Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21 (1895).
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SCHAAF V. SCHAAF
Cite as 312 Neb. 1While this court has characterized the right to dismiss as a
statutory right and not a matter of judicial grace or discretion, 8
it has also explained that a court has discretion to refuse to
dismiss a case. 9 In recognizing exceptions to a plaintiff’s right
to dismiss, it has permitted a court to use discretion where it is
necessary for the protection of any rights which have accrued
to the defendant. 10 This court has said that
“‘the only discretion which may be exercised in the mat-
ter is the protection of any rights which have accrued to
defendant as a result of the bringing of the action, such
as the preservation of a counterclaim, the restitution of
property of which he has been deprived, the recovery of
his costs, and the like; that in the absence of such consid-
erations the right to dismiss is absolute . . . .’” 11
But this court has never applied this discretion where, as
here, the defendant seeks no protection and supports the plain-
tiff’s dismissal. Tommy and Susan took no action whatsoever
after the August 2018 dismissal. Clearly, they were aware
of the dismissal’s content. And they were likewise familiar
with the court’s order entered a few days later. They did not
file an appeal. Nor did they file any motion to retax costs or
to preserve the partial summary judgment. Indeed, when the
copersonal representatives sought reinstatement, Tommy and
Susan resisted. At oral argument before this court, they dis-
puted any attempt to read their answer as having asserted a
counterclaim. One can scarcely imagine any more that they
8
See, Koll v. Stanton‑Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 435(1980); Miller v. Harris, 195 Neb. 75, 236 N.W.2d 828 (1975).
9
See Horton v. State, 63 Neb. 34, 88 N.W. 146 (1901).
10
See, Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d
865 (2002); Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604(1928).
11
Kansas Bankers Surety Co. v. Halford, supra note 10, 263 Neb. at 978,
644 N.W.2d at 870 (quoting Feight v. Mathers, 153 Neb. 839, 46 N.W.2d
492 (1951)).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCHAAF V. SCHAAF
Cite as 312 Neb. 1might have done to acquiesce in the copersonal representatives’
voluntary dismissal.
The net effect of this court’s decision is to impose upon
Tommy and Susan the “benefit” of a partial summary judgment
that they gave up by acquiescing in the dismissal. It rewards
the copersonal representatives’ forum shopping and allows
them to “have [their] cake and eat it too.”
The majority opinion teaches defendants that after a motion
for summary judgment has been granted in any respect, they
dare not rely upon a plaintiff’s voluntary dismissal. I suggest
that this turns the law upside down and shields a dismissing
party from the consequences of its own conduct. I respect-
fully dissent.