Sartain v. Wohlenhaus Appraisal Serv. ( 2014 )

Decisions of the Nebraska Court of Appeals
218 22 NEBRASKA APPELLATE REPORTS
CONCLUSION
For the foregoing reasons, we find the trial court abused its
discretion in prohibiting Wulf from collaterally attacking the
county court’s judgment. We therefore reverse the conviction
and remand the cause for a new trial.
R eversed and remanded for a new trial.
Dwayne Sartain and Lisa Sartain, appellants and
cross-appellees, v. Wohlenhaus A ppraisal Service
and Dan Spence, appellees, and Countrywide
Home Loans, a foreign corporation,
appellee and cross-appellant.
___ N.W.2d ___
Filed July 22, 2014. No. A-13-346.
1. Dismissal and Nonsuit: Judgments: Appeal and Error. Denial of a plaintiff’s
voluntary dismissal of claims presents a question of law, regarding which the
appellate court reaches a conclusion independent of the lower court’s ruling.
2. Dismissal and Nonsuit. An action may be dismissed without prejudice to a
future action by the plaintiff, before the final submission of the case to the jury
or to the court where the trial is by the court.
3. Words and Phrases. A final submission of a case contemplates a submission on
both the law and the facts, and it exists only when nothing remains to be done to
render it complete.
4. Directed Verdict: Dismissal and Nonsuit. After a defendant has moved for a
directed verdict and both counsel have completed their argument on that motion,
a case is under final submission as contemplated in Neb. Rev. Stat. § 25-601
(Reissue 2008), and the plaintiff no longer has an absolute right to dismiss with-
out prejudice.
5. ____: ____. If a motion for directed verdict is made at the close of the plaintiff’s
case, the plaintiff loses the absolute right to dismiss without prejudice until such
time as the court overrules the motion.
6. Directed Verdict. A motion for directed verdict is a request for the court to
decide, as a matter of law, whether there are any questions of fact for a jury
to decide.
7. Summary Judgment. In a motion for summary judgment, the court is requested
to determine as a matter of law that no genuine issue of material fact exists and
that the moving party is entitled to judgment as a matter of law.
8. Dismissal and Nonsuit. A plaintiff has an absolute right to dismiss any time
before final submission of the case, and when such right exists, the court can
only exercise discretion in denying dismissal when it would result in the loss of
a substantial right of the defendant.
Decisions of the Nebraska Court of Appeals
SARTAIN v. WOHLENHAUS APPRAISAL SERV. 219
Cite as 22 Neb. Ct. App. 218
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Ryan J. Lewis and W. Gregory Lake, of Lewis, Pfanstiel &
Reed, L.L.C., for appellants.
Mary M. Schott, of Sodoro, Daly, Shomaker & Selde, P.C.,
L.L.O., for appellee Wohlenhaus Appraisal Service.
Douglas W. Ruge II for appellee Dan Spence.
Jennifer D. Tricker, of Baird Holm, L.L.P., for appellee
Countrywide Home Loans.
Moore, Pirtle, and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
Dwayne Sartain and Lisa Sartain sought to dismiss their
negligence action against Wohlenhaus Appraisal Service
(Wohlenhaus), Dan Spence, and Countrywide Home Loans
(collectively the defendants) after the defendants filed, briefed,
and argued summary judgment motions. The district court for
Douglas County sustained the defendants’ motions to strike
the Sartains’ notice of dismissal and granted the defendants’
motions for summary judgment. The Sartains appeal the dis-
trict court’s order striking their notice of dismissal.
Countrywide Home Loans has also filed a cross-appeal,
assigning as error the district court’s refusal to grant its motion
to dismiss the Sartains’ claim on the basis that the statute of
limitations had expired. Because we affirm the district court’s
order striking the notice of dismissal, and the Sartains have not
appealed the grant of summary judgment, we need not address
Countrywide Home Loans’ cross-appeal.
BACKGROUND
The Sartains filed a second amended complaint in August
2011, alleging the defendants made negligent and fraudu-
lent misrepresentations during the course of a real estate
transaction that occurred in 2006. In May 2012, Wohlenhaus
Decisions of the Nebraska Court of Appeals
220 22 NEBRASKA APPELLATE REPORTS
served written discovery upon the Sartains, but they failed to
respond, even after motions to compel were filed. The court
imposed sanctions, including a provision that if the Sartains
failed to timely respond, they would be prohibited from intro-
ducing evidence against Wohlenhaus at trial.
Trial was scheduled for March 18, 2013. The Sartains failed
to timely identify expert witnesses as required by the court’s
scheduling order and failed to fully respond to discovery
requests as required by the court’s order compelling discovery
responses. In an attempt to cure these deficiencies, the Sartains
filed a late expert witness designation and served supplemen-
tal answers to interrogatories. The defendants moved to strike
these submissions and further sought sanctions against the
Sartains for their failure to allow the defendants’ appraisal
expert access to the property. All the defendants also filed
motions for summary judgment. On March 5, a hearing was
held on various motions filed by the defendants that sought to
exclude the Sartains’ experts, to prohibit them from offering
evidence that would support a claim for damages, to impose
sanctions of an adverse inference instruction relating to dam-
ages, and to grant summary judgment.
On the morning of March 13, 2013, the court sent an e-mail
to all parties informing them that the court was granting the
motions to strike, the motions in limine, and the motion for
sanctions. As a result, the Sartains were informed that they
would not be able to put forth any expert witnesses at trial and
that an adverse inference jury instruction would be given. In
essence, the e-mail advised the Sartains that they would be pro-
hibited from proving the existence of any damages at trial. The
court further advised that it would be ruling on the motions
for summary judgment in the next few days. Later that same
day, the Sartains filed a notice of dismissal of their complaint
without prejudice.
The defendants filed motions to strike the notice of dis-
missal, and a hearing was held on March 15, 2013. The court
sustained the motions to strike and issued summary judgment
in favor of the defendants. The Sartains timely appeal.
Decisions of the Nebraska Court of Appeals
SARTAIN v. WOHLENHAUS APPRAISAL SERV. 221
Cite as 22 Neb. Ct. App. 218
ASSIGNMENT OF ERROR
The Sartains’ sole assignment of error is that the trial
court erred in sustaining the defendants’ motions to strike the
Sartains’ notice of dismissal.
STANDARD OF REVIEW
[1] Denial of a plaintiff’s voluntary dismissal of claims
presents a question of law, regarding which the appellate court
reaches a conclusion independent of the lower court’s ruling.
See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592
N.W.2d 894 (1999).
ANALYSIS
[2,3] Neb. Rev. Stat. § 25-601(1) (Reissue 2008) governs
voluntary dismissals without prejudice. It states in part that
“[a]n action may be dismissed without prejudice to a future
action (1) by the plaintiff, before the final submission of the
case to the jury, or to the court where the trial is by the court.”
A “final submission” contemplates a submission on both the
law and the facts, and it exists only when nothing remains
to be done to render it complete. See Koll v. Stanton-Pilger
Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 (1980).
The Nebraska Supreme Court, long ago, articulated the rea-
son for the rule:
No case has been cited where under a statute like ours a
plaintiff as a matter of right can dismiss his action after
it has been submitted to the court. If he could do so liti-
gation would become interminable, because a party who
was led to suppose a decision would be adverse to him
could prevent such decision and begin anew, thus subject-
ing the defendant to annoying and continuous litigation.
The statute, therefore, limits the right of a plaintiff to
dismiss to the final submission of the case.
State v. Scott, 22 Neb. 628, 640, 36 N.W. 121, 126-27 (1888).
[4,5] Our appellate courts have not addressed whether a
case in which a motion for summary judgment has been
briefed and argued constitutes a final submission of the case.
However, after a defendant has moved for a directed verdict
Decisions of the Nebraska Court of Appeals
222 22 NEBRASKA APPELLATE REPORTS
and both counsel have completed their argument on that
motion, a case is under final submission as contemplated in
§ 25-601 and the plaintiff no longer has an absolute right to
dismiss without prejudice. See Collection Specialists v. Vesely,
238 Neb. 181, 469 N.W.2d 549 (1991). Even if the motion for
directed verdict is made at the close of the plaintiff’s case, the
plaintiff loses the absolute right to dismiss without prejudice
until such time as the court overrules the motion. See Miller v.
Harris, 195 Neb. 75, 236 N.W.2d 828 (1975).
[6,7] The reason for considering the submission of a motion
for directed verdict as a final submission to the court within the
meaning of § 25-601 is that such a motion is a request for the
court to decide, as a matter of law, whether there are any ques-
tions of fact for a jury to decide. See Miller v. Harris, supra.
Likewise, in a motion for summary judgment, the court is
requested to determine as a matter of law that no genuine issue
of material fact exists and that the moving party is entitled to
judgment as a matter of law. See Harris v. O’Connor, 287 Neb.
182, 842 N.W.2d 50 (2014).
The Sartains rely upon Kansas Bankers Surety Co. v. Halford,
263 Neb. 971, 644 N.W.2d 865 (2002), to support their conten-
tion that a motion for summary judgment is not a final submis-
sion for purposes of § 25-601; however, their reliance on this
case is misplaced because of the different posture of the motion
at the time the dismissal was filed.
[8] In Kansas Bankers Surety Co. v. Halford, supra, the
defendant had filed a motion for summary judgment, but the
plaintiff had not yet filed his brief; instead, he filed a motion
to dismiss with prejudice. Section 25-601 applies to motions
to dismiss without prejudice; therefore, this statute arguably
did not govern the dismissal in Halford. Furthermore, there
had been no final submission of the case because the sum-
mary judgment motion had not yet been fully briefed and
argued. The court noted it had previously held that a plaintiff
has an absolute right to dismiss any time before final submis-
sion of the case and that when such right exists, the court can
only exercise discretion in denying dismissal when it would
result in the loss of a substantial right of the defendant. See
Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604
 Decisions of the Nebraska Court of Appeals
SARTAIN v. WOHLENHAUS APPRAISAL SERV. 223
Cite as 22 Neb. Ct. App. 218
(1928) (stating that under identical statutory language, plaintiff
may dismiss his action as matter of right before final submis-
sion if it does not prejudice defendant). The Halford court
ultimately concluded that the plaintiff had a right to dismiss
its case because it would not result in the loss of a substan-
tial right of the defendant because he had not filed a setoff
or counterclaim.
Based upon the facts of this case, the Sartains no longer had
an absolute right to dismiss without prejudice because there
had been a final submission to the court. Therefore, we find
the trial court did not err in striking the notice of dismissal.
The Sartains have not appealed the granting of the defendants’
motions for summary judgment, and therefore that issue is not
before us.
CONCLUSION
Once the motion for summary judgment was taken under
advisement, there was a final submission of the case and the
Sartains no longer had an absolute right to dismiss their com-
plaint without prejudice. The trial court did not err, therefore,
in striking their notice to dismiss.
Affirmed.