Bert Cattle Co., Inc. v. Warren ( 1991 )

Per Curiam.

The plaintiffs appeal the district court for Douglas County’s refusal to vacate its earlier order dismissing the plaintiffs’ second amended petition and refusal to permit the plaintiffs to file a third amended petition. We affirm.

Bert Cattle Company, Inc., and Stanley D. Bert, herein collectively designated “Bert,” brought an action in the district court for Douglas County against Jay W. Warren; J & W Cattle Company; J. W. Cattle Corporation; Jay W. and Mabel M. Warren, in their capacity as the coexecutors of the estate of Ward B. Warren, deceased; and the Home National Bank of Arkansas City, Kansas. All defendants are hereinafter referred to as “Warren.”

In an amended petition filed on June 25,1987, Bert alleged in substance (1) that a third party converted the plaintiffs’ funds; (2) that the proceeds from those funds, which were subject to a constructive trust for the benefit of the plaintiffs, were transferred to one or more of the defendants; and (3) that there should be an accounting. On July 23, 1987, the defendants demurred to the amended petition, claiming that another action was pending between the same parties for the same cause and that the petition did not state facts sufficient to constitute a cause of action. See Neb. Rev. Stat. § 25-806 (Reissue 1989). The district court, on September 14, 1987, sustained the demurrer and granted the plaintiffs 10 days to file another amended petition.

On September 24, 1987, Bert filed a second amended petition, which in essence contained the same allegations as the amended petition. Warren, on April 12, 1988, demurred on three grounds: (1) The petition failed to allege facts sufficient to state a cause of action, (2) there was a defect of parties defendant, and (3) another action was pending between the same parties for the same cause. Without specifying the basis for its ruling, the district court entered an order on April 28, 1988, sustaining Warren’s demurrer and granting Bert 2 weeks to file a third amended petition.

During the 2-week period allowed by the court to file a third amended petition, Bert took no action. Neither did Bert file a notice of appeal within 30 days of April 28,1988. See Neb. Rev. Stat. § 25-1912 (Reissue 1989). Instead of complying with the trial court’s order of April 28,1988, Bert waited until some\l/i months later to take any action. On September 13, 1988, Bert filed a motion for leave to file a third amended petition. At the hearing on Bert’s motion, the court denied Bert leave to file a third amended petition and then sustained Warren’s motion to dismiss the action. We infer that Warren’s motion to dismiss was made orally, since the record’s only mention of Warren’s motion is the court’s notation as a docket entry: “Defendant’s motion to dismiss sustained.” Our inference about the oral motion is supported by Warren’s statement in their brief: “Warren orally moved to dismiss the case. The Trial Court sustained that motion.” Brief for appellees at 3.

Bert timely filed a motion for a new trial. During a hearing on the motion for a new trial, Bert tendered a third amended petition. The district court, after consideration of that amended petition, entered an order stating that Bert’s “motion for new trial [was] argued and overruled.” Bert timely appealed the overruling of its motion for a new trial.

Bert’s three assignments of error merge to allege that (1) the district court erred in sustaining Warren’s demurrer to Bert’s second amended petition and (2) the district court erred by overruling Bert’s motion for a new trial, that is, the court’s refusal to reinstate the action and allow Bert to file a third amended petition. As it is well established that one must stand on a pleading against which a demurrer has been sustained in order to preserve the right to appeal the decision on the particular demurrer, Raskey v. Michelin Tire Corp., 223 Neb. 520, 391 N.W.2d 123 (1986), we address solely the second assignment of error.

Much has been made in this case concerning Warren’s failure to disclose the reasons for its motion to dismiss and the district court’s failure to state its reason for sustaining Warren’s motion to dismiss. The party appealing has the responsibility for making an appropriate record in a proceeding to be reviewed by an appellate court and for providing the appellate court with a basis for addressing an issue or answer a question presented in a trial court. See, State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991); State v. Schaneman, 235 Neb. 655, 456 N.W.2d 764 (1990); State v. Isikoff, 223 Neb. 679, 392 N.W.2d 783 (1986). The responsibility for preserving for appellate review a judge’s reasons concerning a particular ruling is not upon the judge, but is squarely upon a party challenging the ruling. In the absence of an appropriate motion, a trial court is not required to give any reasons for its rulings. Peitz v. Hausman, 198 Neb. 344, 252 N.W.2d 628 (1977). Here, Bert made no such motion.

If Bert had assumed the responsibility of preserving a record for appeal, the matter could have been approached in either one of two ways. First, Bert could have requested that the trial court require Warren to place on the record the reason for the motion to dismiss. Second, Bert could have made an appropriate motion for the trial court to give its reasons for its dismissal ruling. See Peitz, supra.

It is elementary that a correct ruling of the trial court will not be reversed merely because the trial court announced a wrong reason. Id. See, also, In re Interest of G. G. et al., 237 Neb. 306, 465 N.W.2d 752 (1991). It follows, therefore, that this court will not presume, when a trial court fails to state a reason for the dismissal of an action, that the dismissal was based on an invalid ground.

Guided by the above-cited principles, a proper reason for the court’s dismissal of Bert’s action becomes immediately apparent. It is provided in Neb. Rev. Stat. § 25-601 (Reissue 1989) that “ [a]n action may be dismissed without prejudice to a future action ... (5) by the court for disobedience by the plaintiff of an order concerning the proceedings in the action.” Not only may a court sua sponte dismiss an action without prejudice under § 25-601(5), but a defendant may file a motion to dismiss without prejudice under that subdivision. See Rosnick v. Renstrom, 210 Neb. 759, 316 N.W.2d 765 (1982).

Applicable to this case is the following language from Rosnick, supra at 761, 316 N.W.2d at 767 (quoting Scudder v. Haug, 197 Neb. 638, 250 N.W.2d 611 (1977)):

“ ‘[I]t has almost universally been held or recognized that courts have the inherent power to dismiss an action for disobedience of a court order. . . . Without this right, a court could not control its dockets; business before it would become congested; its functions would be impaired; and speedy justice to litigants would largely be denied.’ ”

In this case, the trial court had ample reason to dismiss Bert’s petition for failure to comply with the court’s order. The court granted Bert 2 weeks to amend its second amended petition. Instead, Bert waited well over 4 months to file its motion to file what would have been its fourth petition. The trial court did not abuse its discretion in dismissing Bert’s action for disobedience of its order. See Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 220 (1974) (it is within the discretion of the trial court to dismiss a petition for disobedience).

Warren’s counsel at oral argument before this court disavowed that the dismissal was a sanction for disobedience. However, this court is not bound by a counsel’s characterization on a question of law. From the record made in this case, counsel is in no better position than this court to know the reason for the trial court’s dismissal of Bert’s action.

No verbatim record has been presented to this court of the hearing of September 28, 1988, on Bert’s motion for leave to file a third amended petition. Nor was there any documentation filed at that time as to any reason why Bert’s motion for leave to file an amended petition was not filed sooner. It is true that an excuse for the failure to file a third amended petition was presented at the hearing on Bert’s motion for a new trial. However, although that information must have been available on September 13, 1988, Bert sat on the excuse and did not present it to the judge at the hearing on September 28, 1988. Certainly, the reason for Bert’s failure to comply with the trial court’s order of April 28, 1988, cannot be considered as newly discovered evidence as grounds for a new trial under Neb. Rev. Stat. § 25-1142(7) (Reissue 1989). The trial court did not abuse its discretion in overruling Bert’s motion for a new trial. See DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989).

The judgment of the district court for Douglas County is affirmed.

Affirmed.

Caporale, J., not participating.