Pearce v. Mutual of Omaha Ins. Co. , 28 Neb. Ct. App. 410 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
Kevin P. Pearce and Julie Pearce, appellants, v.
Mutual of Omaha Insurance Company
and Continuum Worldwide
Corp., appellees.
___ N.W.2d ___
Filed May 19, 2020. No. A-19-868.
1. Judgments: Final Orders: Legislature. The Legislature has defined
a judgment as the final determination of the rights of the parties in an
action; conversely, every direction of a court or judge, made or entered
in writing and not included in a judgment, is an order.
2. Rules of the Supreme Court: Records: Appeal and Error. Appellate
court rules provide for the inclusion of journal entries into the appel-
late record.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a judgment, decree, or
final order entered by the court from which the appeal is timely taken,
and that judgment, decree, or final order must contain the clerk of the
court’s file stamp and date.
4. Final Orders: Appeal and Error. An unsigned journal entry without
a file stamp can constitute an interlocutory order; but it cannot consti-
tute a final, appealable order, particularly when it does not dispose of
all issues.
5. Jurisdiction: Records: Proof: Appeal and Error. It is the appellant’s
burden to ensure that the record establishes the appellate court’s basis
for jurisdiction over an appeal.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Appeal dismissed.
Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell,
P.C., L.L.O., for appellants.
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
Richard P. Jeffries, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellees.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
Kevin P. Pearce and Julie Pearce attempt to appeal for the
third time from two underlying orders entered by the Douglas
County District Court on October 16, 2018, and May 23, 2019.
Appellees, Mutual of Omaha Insurance Company (Mutual of
Omaha) and Continuum Worldwide Corp. (Continuum), have
filed a motion for summary dismissal on the basis that the
Pearces’ appeal is now untimely. We agree the appeal is
untimely, and we therefore sustain appellees’ motion for sum-
mary dismissal and dismiss the appeal for lack of jurisdiction.
Ordinarily, a summary dismissal by this court is limited
to a brief docket entry filed in the case. However, given the
confusion apparent in this case with regard to orders memo-
rialized on docket sheets, i.e., journal entries; final judg-
ments; and adequate appellate records, a detailed explanation
is warranted.
BACKGROUND
Underlying Orders Entered October 16, 2018,
and May 23, 2019
Kevin was an insurance agent for appellees; he rented
office space from Mutual of Omaha where he kept personal
computers which contained business and personal informa-
tion. Kevin’s contract with appellees was terminated without
warning on January 17, 2014. Kevin was escorted from his
office, and he subsequently filed an action for the return of
his property. Appellees filed a counterclaim seeking damages
for breach of contract and misappropriation of trade secrets,
along with an injunction against Kevin’s possession or use of
appellees’ proprietary material. Appellees filed a motion for
summary judgment; the following sequence of events then
took place:
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
•  October 16, 2018: The district court entered an order sustain-
ing appellees’ summary judgment motion, thus dismissing
the Pearces’ action with prejudice. The order was silent as
to appellees’ counterclaim, but the last sentence of the order
stated that “[a]ny request for relief by any party not specifi-
cally granted by this Order is denied.”
•  October 24, 2018: Mutual of Omaha filed a “Motion to
Alter or Amend,” noting that the October 16 order did not
address its counterclaim for an injunction (and also noted that
Continuum was previously dismissed from the action).
•  October 26, 2018: The Pearces filed a “Motion to Alter or
Amend” the October 16 order for various reasons.
•  November 30, 2018: There are three pages of “Judges Notes”;
each page indicates the case name at the top of the page, fol-
lowed by specific dates and docket entries. The judge’s name
is listed for each entry. The docket entry for “11/30/2018”
noted attorney appearances, and then it stated, “Hearing
on Defendant’s [Mutual of Omaha’s] Motion to Alter or
Amend. Argument. Motion Sustained. Order to be submitted.
Hearing on Plaintiff’s [Pearces’] Motion to Alter or Amend.
Argument. Motion Denied.”
•  December 13, 2018: An “Order on [Mutual of Omaha’s]
Motion to Alter or Amend” sustained Mutual of Omaha’s
motion to alter or amend and explained that the October
16 summary judgment order did not dispose of Mutual
of Omaha’s counterclaim, the temporary restraining order
remained in effect until further order, and the October 16
order was not intended to be a final order or judgment by
the court.
•  May 23, 2019: The district court indicated in its “Permanent
Injunction and Judgment” that there was a trial on appellees’
action for a permanent injunction. The injunction was granted.
First Appeal: A-19-603
Filed June 21, 2019
The Pearces filed a notice of appeal on June 21, 2019.
Although neither party raised a jurisdictional issue, this court
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
on its own motion issued an order to show cause noting that
the matter was under jurisdictional review. The show cause
order pointed out that the district court “clerk’s certificate
indicates that a motion or motions to alter or amend judg-
ment” had been filed on October 24, 2018. Because neither the
motions nor orders were included in our transcript, the Pearces
were ordered to provide this court copies of any motion to
alter or amend judgment, along with the district court’s sub-
sequent ruling on the motion or motions. In response, the
Pearces filed a supplemental transcript which contained the
motions to alter or amend filed by the Pearces and Mutual of
Omaha, as well as the December 13 order pertaining solely to
Mutual of Omaha’s motion to alter or amend as noted above.
However, the Pearces did not include in the supplemental
transcript a copy of the November 30 docket entry contained
in the Judges Notes which memorialized the district court’s
denial of the Pearces’ motion to alter or amend following a
hearing. We note here that our appellate court rules provide
for inclusion of such records in the transcript. See Neb. Ct.
R. App. P. § 2-104(B) (journal entries may be typed as group
and included at end of transcript). See, also, Neb. Rev. Stat.
§ 25-914 (Reissue 2016) (“[e]very direction of a court or
judge, made or entered in writing and not included in a judg-
ment, is an order”).
Because the Pearces failed to provide any documentation
to establish that their motion to alter or amend had been ruled
upon by the district court on November 30, 2018, this court
dismissed their first appeal on July 25, 2019. This court’s
docket entry dismissing the appeal stated, “District Court has
not yet ruled upon [the Pearces’] motion to alter or amend.”
At this point, the Pearces could have requested a rehearing
and could have provided to this court through a supplemental
transcript a copy of the November 30, 2018, docket entry in
the Judges Notes reflecting the district court’s denial of the
Pearces’ motion to alter or amend. However, the Pearces did
not do so. As a result, their appeal was dismissed because
the appellate record did not demonstrate that the Pearces’
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PEARCE v. MUTUAL OF OMAHA INS. CO.
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October 26 motion to alter or amend had ever been ruled
upon by the district court and their appeal appeared to be pre-
mature. See Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2018)
(timely motion to alter or amend judgment terminates time in
which notice of appeal must be filed; when such terminating
motion is filed, notice of appeal filed before court announces
decision upon terminating motion shall have no effect and
new notice of appeal must be filed after entry of order ruling
on terminating motion).
Second Appeal: A-19-764
Filed August 9, 2019
Following this court’s dismissal of the Pearces’ first appeal,
instead of filing for rehearing or filing a petition for further
review, the Pearces instead filed another notice of appeal on
August 9, 2019. They again indicated that they sought review
of the October 16, 2018, order (summary judgment) and
the May 23, 2019, order (permanent injunction). This time,
Mutual of Omaha’s motion to alter or amend filed October
24, 2018, and the Pearces’ motion to alter or amend filed
October 26 were included in the transcript, along with the
December 13 order which related only to Mutual of Omaha’s
motion. However, the Pearces had requested in their praecipe
for transcript, “Any and all Judge’s Notes throughout this
proceeding.” The transcript filed by the district court clerk
did not contain the Judges Notes as requested by the Pearces.
On August 21, 2019, this court issued an order to show
cause, stating:
A review of the current record fails to show that the
Douglas County District Court ever ruled on [the
Pearces’] motion to alter or amend the judgment. [The
Pearces] are given 10 days from the date of this order
to file a supplemental transcript with this court which
contains a file stamped copy of the district court’s order
denying their motion to alter or amend the judgment.
Failure to file such a supplemental transcript may result
in the appeal being summarily dismissed . . . .
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
On August 23, 2019, the Pearces filed a “Response to
Order to Show Cause.” It stated that the district court judge
“did not enter an Order on the [Pearces’] Motion to Alter or
Amend filed on or about October 26, 2018[,]” but that the
parties “met in chambers for hearing on the parties’ compet-
ing Motions to Alter or Amend on November 30, 2018, where
[the district court judge] denied [the Pearces’] Motion to
Alter or Amend (see attached Exhibit ‘A’, Judges Notes dated
11/30/2018).” Exhibit A showed various filings, and at the end
of the document, the Judges Notes contained the November
30, 2018, docket entry denying the Pearces’ motion to alter
or amend.
This court dismissed the second appeal on August 29, 2019,
with a docket entry stating, “District court has not yet ruled
upon [the Pearces’] motion to alter or amend.” Although this
was not quite accurate based on the November 30, 2018,
docket entry now supplied to this court in response to the order
to show cause, the Judges Notes were not provided to this court
in a supplemental transcript. Regardless, even if the Judges
Notes had been included in the initial transcript in this second
appeal (as requested by the Pearces in their praecipe) or in a
supplemental transcript in response to the order to show cause,
the second appeal could not have been saved.
Because the second appeal was filed on August 9, 2019, and
the district court’s final judgment was entered on May 23, the
appeal was now untimely. There was nothing in the record to
show that the 30-day appeal time had been tolled. We acknowl-
edge that this court’s docket entry may have created some con-
fusion by dismissing the second appeal on the basis that the
“District court has not yet ruled upon [the Pearces’] motion
to alter or amend.” This likely led to the Pearces erroneously
believing that the November 30, 2018, docket entry contained
in the Judges Notes it had now provided to this court did not
constitute an order disposing of their motion to alter or amend.
As a result, the Pearces subsequently sought to have the dis-
trict court enter a separate written and file-stamped order deny-
ing the Pearces’ October 26 motion to alter or amend. The
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
district court proceeded to enter such an order on September
9, 2019 (signed September 6, file-stamped September 9). That
order stated: “This matter came on for hearing on November
30, 2018, upon [the Pearces’] Motion to Alter or Amend. . . .
IT IS THEREFORE ORDERED [the Pearces’] Motion to Alter
or Amend is denied.” The Pearces thereafter immediately filed
their notice of appeal on September 9, 2019, in the present
(third) appeal, A-19-868.
In response to the newly entered September 9, 2019,
order denying the Pearces’ October 26, 2018, motion to
alter or amend, the appellees filed a “Motion to Vacate” the
“September 6 [sic], 2019 Order purporting to deny, for the
second time, the [Pearces’] Motion to Alter or Amend as of
the same date.” Appellees referred to the docket entry entered
on November 30, 2018, in the Judges Notes, and pointed out
that per appellate court rules, journal entries can be made
part of the official transcript, but that the Pearces failed to
do so when appealing to this court. Appellees submitted
that the Pearces were trying to “make an otherwise untimely
appeal viable,” in that the Pearces’ motion to alter or amend
could not be denied twice. Appellees further claimed that the
September 9, 2019, order was entered over appellees’ objec-
tion without a motion and notice of hearing and that therefore,
the order was the product of an ex parte communication and
was prejudicial to appellees.
On September 24, 2019, the district court entered an order
vacating the “September 6 [sic], 2019 Order.” It took judicial
notice of the Judges Notes from November 30, 2018, wherein
the court had already denied the Pearces’ motion to alter or
amend and concluded that the September 9, 2019, order “pur-
ports to deny the Motion to Alter or Amend for the second
time.” The district court referred to § 25-914 (every direction
of court or judge, made or entered in writing and not included
in judgment, is order) and § 2-104(B)(2) with regard to the
Judges Notes constituting a written order of the court which
could have been transmitted to this court. The district court
concluded that this court did not acquire jurisdiction as a
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
result of the September 9 order because it was an invalid order
and that therefore, the district court determined it retained
jurisdiction to vacate the September 9 order.
On September 30, 2019, the Pearces filed a “Motion to Enter
Order.” It set forth the sequence of events pertaining to its
motion to alter or amend and stated that “to date, an Order on
[the Pearces’] Motion to Alter or Amend has not been entered.”
They requested such an order. On October 8, the district court
filed an “Order on Motion to Enter Order,” which overruled
the motion.
Present (Third) Appeal: A-19-868
Filed September 9, 2019
As noted above, the Pearces’ filed their third notice of
appeal in this action on September 9, 2019, the same day the
district court’s order was filed purporting to deny the Pearces’
October 16, 2018, motion to alter or amend. As also noted,
the September 9, 2019, order was subsequently vacated by
the district court on September 24. Regardless of the filings
and orders generated in the district court following this court’s
dismissal of the Pearces’ second appeal, the Pearces’ third
appeal must nevertheless be summarily dismissed for lack
of jurisdiction.
ANALYSIS
Appellees’ Motion for
Summary Dismissal
Appellees correctly assert that the September 9, 2019, notice
of appeal was filed more than 30 days after the final judgment
was entered in this case on May 23. They contend that this
court is therefore deprived of jurisdiction and that the Pearces’
third appeal should be dismissed. It is true that § 25-1912(1)
provides that a notice of appeal shall be filed within 30 days
of entry of a judgment, decree, or final order. However, pursu-
ant to § 25-1912(3), the running of the time for filing a notice
of appeal shall be terminated by a timely motion to alter or
amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue
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PEARCE v. MUTUAL OF OMAHA INS. CO.
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2016) (motion to alter or amend judgment shall be filed no
later than 10 days after entry of judgment). In this case, both
appellees and the Pearces filed timely motions to alter or
amend the October 16, 2018, order, which appeared to be a
final judgment at that time. Subsequently, according to the
November 30 docket entry contained in the Judges Notes, a
hearing appears to have taken place that day on both parties’
motions to alter or amend; Mutual of Omaha’s motion was sus-
tained, and an order was to be submitted to the district court.
The Pearces’ motion was “Denied.” An order was then entered
on December 13, sustaining Mutual of Omaha’s motion to alter
or amend. The order explained that the October 16 summary
judgment order did not dispose of Mutual of Omaha’s counter-
claim, the temporary restraining order remained in effect until
further order, and the October 16 order was not intended to be
a final order or judgment by the court.
The determinative issue for jurisdictional purposes comes
down to whether or not the November 30, 2018, docket entry
contained in the Judges Notes constitutes an order disposing of
the Pearces’ motion to alter or amend. If so, then by the time
the final judgment of the court was entered on May 23, 2019,
there were no pending motions to alter or amend which would
have tolled the time to appeal beyond the 30 days provided for
in § 25-1912.
Did November 30, 2018, Docket
Entry Constitute Order?
[1,2] The confusion in this case stemmed from the dis-
trict court’s November 30, 2018, docket entry/journal entry
set forth in the Judges Notes, wherein the court denied the
Pearces’ October 26 motion to alter or amend. We conclude
that although it was a docket entry and not a separate file-
stamped document, the written entry made by the district
court on November 30 denying the Pearces’ motion to alter
or amend was nevertheless an order disposing of the Pearces’
motion. Section 25-914 states: “Every direction of a court
or judge, made or entered in writing and not included in a
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PEARCE v. MUTUAL OF OMAHA INS. CO.
Cite as 28 Neb. Ct. App. 410
judgment, is an order.” See, also, E.D. v. Bellevue Pub. Sch.
Dist., 299 Neb. 621, 909 N.W.2d 652 (2018) (Legislature
has defined judgment as final determination of rights of par-
ties in action; conversely, every direction of court or judge,
made or entered in writing and not included in judgment, is
order). Additionally, as previously noted, our appellate court
rules provide for the inclusion of journal entries, such as the
Judges Notes involved here, into the appellate record. See
§ 2-104(B)(2) (“[j]ournal entries may be typed as a group and
included at the end of the transcript,” and “[e]ach entry must
show the date it was filed with the clerk of the court and the
name of the judge making the entry”). In the Judges Notes
before us, each docket entry showed the date it was filed and
the name of the judge making the entry.
An order such as the one made by the district court in the
Judges Notes on November 30, 2018, is distinguishable from
a judgment, decree, or final order resolving a case, and from
which an appeal can be taken. The November 30 written
docket entry constituted an “order” disposing of the Pearces’
motion even though it was not separately filed and did not
contain a file stamp. The key distinction to be made on the
necessity of a signed, file-stamped order is whether we are
dealing with (1) an order that is not part of a judgment or (2)
a judgment. Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2018) pro-
vides the requirements for a final order or judgment; it states
in part:
(1) A judgment is the final determination of the rights
of the parties in an action.
(2) Rendition of a judgment is the act of the court, or a
judge thereof, in signing an order of the relief granted or
denied in an action.
(3) The entry of a judgment, decree, or final order
occurs when the clerk of the court places the file stamp
and date upon the judgment, decree, or final order. For
purposes of determining the time for appeal, the date
stamped on the judgment, decree, or final order shall be
the date of entry.
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(4) The clerk shall prepare and maintain the records of
judgments, decrees, and final orders that are required by
statute and rule of the Supreme Court.
[3,4] For an appellate court to acquire jurisdiction of an
appeal, there must be a judgment, decree, or final order
entered by the court from which the appeal is timely taken,
and that judgment, decree, or final order must contain the
clerk of the court’s file stamp and date. See id. See, also,
City of Ashland v. Ashland Salvage, 271 Neb. 362, 711
N.W.2d 861 (2006) (file-stamped journal entry disposed of
whole merits of case and was final judgment for purposes of
appeal); Donscheski v. Donscheski, 17 Neb. Ct. App. 807, 771
N.W.2d 213 (2009) (district court’s order denying mother’s
motion for removal and change of custody and granting
father’s motion for custody was unsigned journal entry that
was not file stamped and did not dispose of all issues; thus,
journal entry did not constitute rendition or entry of judg-
ment and was interlocutory order superseded by subsequent
final order). In Donscheski v. Donscheski, 17 Neb. Ct. App. at
813, 771 N.W.2d at 219, this court pointed out the distinc-
tion between an order which is not part of a judgment and a
final judgment:
Consequently, §§ 25-914 and 25-1301 specify the
range of actions available to a judge by defining, first,
an order—which, by definition, is not part of a judg-
ment—and second, a judgment—which must be a final
determination of the rights of the parties in an action,
as well as being both rendered and entered, before it
is a final, appealable order. . . . Because the July 31,
2008, journal entry was neither signed nor file stamped,
it did not constitute either a rendition of judgment or
an entry of judgment. Furthermore, the July 31 journal
entry was also not a final order, because it did not dis-
pose of all issues—the district court specifically left the
issues of parenting time and child support under advise-
ment. . . . [T]he journal entry is quite meaningless for
our purposes; it is the final order of October 15 which
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we review, and which superseded the interlocutory order
contained in the journal entry.
Therefore, as set forth in Donscheski v. Donscheski, supra, an
unsigned journal entry without a file stamp can constitute an
interlocutory order; but it cannot constitute a final, appealable
order, particularly when it does not dispose of all issues.
When the district court in the present matter made the
November 30, 2018, docket entry contained in the Judges
Notes, it was an order disposing of the Pearces’ motion to alter
or amend the October 16 order. It was not an order that was
part of a final judgment; it did not fully dispose of the under-
lying case. However, once the May 23, 2019, final judgment
was entered, all matters had been disposed of, and there were
no pending terminating motions. Thus, this court would have
had jurisdiction over the first appeal had the appellate record
contained the November 30, 2018, docket entry.
For the sake of completeness, we want to be clear that had
a motion for new trial or motion to alter or amend judgment
been timely filed after the final judgment was entered in this
case on May 23, 2019, then any order ruling on such a ter-
minating motion would have to have been formally entered
on the trial court’s records, not merely recorded as a docket
entry in the Judges Notes. This is so because the order on the
terminating motion is part of the final judgment and now dis-
poses of the whole action. See § 25-1912(3) (notice of appeal
must be filed after “entry of the order” ruling on terminating
motion). The “entry” of an order is governed by § 25-1301(3),
which requires the clerk of the court to place a file stamp
and date upon the judgment, decree, or final order. Section
25-1301(3) further provides: “For purposes of determining the
time for appeal, the date stamped on the judgment, decree, or
final order shall be the date of entry.” An order ruling on a
terminating motion timely filed after a final judgment or final
order starts the 30-day clock for filing an appeal, and must be
entered in accordance with § 25-1301.
On the other hand, a file-stamped “entry” of the November
30, 2018, order in this case, while maybe preferable, was
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not required given its interlocutory status (October 16 order
was not final judgment), much like the journal entry that was
not signed or file stamped in Donscheski v. Donscheski, 17 Neb.
App. 807, 771 N.W.2d 213 (2009). Such docket entries or jour-
nal entries are nevertheless orders of the court. See § 25-914
(“[e]very direction of a court or judge, made or entered in
writing and not included in a judgment, is an order”). They are
simply not final, appealable orders or judgments, which would
require compliance with § 25-1301 (clerk of court’s file stamp
and date placed upon judgment, decree, or final order).
Summary
[5] Accordingly, when the Pearces filed their first appeal
(A-19-603) on June 21, 2019, it was timely filed from the
entry of the May 23 final judgment. There were no newly filed
motions to alter or amend after entry of that judgment. All that
was needed at the time of the first appeal was an appellate
record containing the November 30, 2018, order, which was
memorialized in the Judges Notes; this would have confirmed
there were no outstanding motions to alter or amend remaining
from the October 2018 filings. Despite the order to show cause
issued by this court, the Judges Notes were not supplied and
the Pearces’ first appeal was dismissed. This was unfortunate;
however, it is the appellant’s burden to ensure that the record
establishes the appellate court’s basis for jurisdiction over an
appeal. See Clarke v. First Nat. Bank of Omaha, 296 Neb. 632,
895 N.W.2d 284 (2017).
Following the dismissal of the first appeal, the subsequent
appeals were each filed out of time because there were no
remaining terminating motions extending the Pearces’ time
to appeal.
CONCLUSION
For the foregoing reasons, appellees’ motion for summary
dismissal is sustained and the appeal is dismissed for lack
of jurisdiction.
Appeal dismissed.