Addy v. Lopez , 295 Neb. 635 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/27/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
ADDY v. LOPEZ
Cite as 295 Neb. 635
R ebecca G. A ddy, Personal R epresentative of the Estate
of R aven J. A ddy-Cruz , deceased, appellant,
v. Carlos J. Lopez et al., appellees.
___ N.W.2d ___
Filed January 27, 2017. No. S-15-934.
1. Jurisdiction: Final Orders: Appeal and Error. An appellate court is
without jurisdiction to entertain appeals from nonfinal orders.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
3. Final Orders: Appeal and Error. A party cannot move to voluntarily
dismiss a case without prejudice, consent to entry of such an order, and
then seek interlocutory appellate review of an adverse pretrial order.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Appeal dismissed.
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C.,
for appellant.
Robert S. Keith, of Engles, Ketcham, Olson & Keith, P.C.,
for appellee Werner Construction, Inc.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
INTRODUCTION
Raven J. Addy-Cruz was killed in an automobile accident
caused by Lyle J. Carman. Carman was employed by Lopez
Trucking. Lopez Trucking, in turn, had been hired by Werner
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
ADDY v. LOPEZ
Cite as 295 Neb. 635
Construction, Inc. (Werner), to haul debris from a construc-
tion site. At issue in this appeal is whether Werner is liable
for wrongful death, because Carman was working on a Werner
jobsite prior to the accident. We dismiss for lack of a final,
appealable order.
BACKGROUND
Addy-Cruz was the victim of an automobile accident on
June 7, 2012. She died of her injuries on June 9. The accident
was caused when a dump truck driven by Carman rear-ended
the vehicle driven by Addy-Cruz, causing it to leave the road-
way and overturn in a ditch. Carman was employed by Lopez
Trucking and acting within the scope of that employment at the
time of the accident.
Rebecca G. Addy, the personal representative of Addy-Cruz’
estate, filed a wrongful death suit against Carman; Carlos J.
Lopez, owner of Lopez Trucking; and Werner. Werner sought
summary judgment, which was granted.
Shortly after Werner was dismissed, Addy moved for judg-
ment on the pleadings, but apparently that order was never
ruled upon. Instead, it appears that Addy agreed to dismiss the
cause without prejudice, but initially failed to do so. On July 1,
2015, the district court dismissed the case for exceeding case
progression standards. The case was reinstated on July 17.
On September 8, 2015, Addy, Carman, and Lopez entered a
joint stipulation to dismiss without prejudice. The stipulation
provided that the dismissal was “for the purpose of moving
forward with an appeal of the Court’s order . . . granting the
motion for summary judgement filed by . . . Werner.” The case
was dismissed on September 9. Addy filed a notice of appeal
on October 6, indicating that she was appealing from the
order sustaining summary judgment in favor of Werner, which
“became a final appealable order upon the entry of the ‘Order’
dismissing the case filed on September 9, 2015.”
ASSIGNMENTS OF ERROR
Addy assigns, restated and consolidated, that the district
court erred in (1) sustaining Werner’s motion for summary
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
ADDY v. LOPEZ
Cite as 295 Neb. 635
judgment and (2) finding that Carman was not Werner’s
­common-law or statutory employee.
STANDARD OF REVIEW
[1] An appellate court is without jurisdiction to entertain
appeals from nonfinal orders.1
[2] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides.2
ANALYSIS
As an initial matter, Werner contends that Addy is not
appealing from a final order. We agree and dismiss Addy’s
appeal.
In this case, Addy acknowledges that her voluntary dis-
missal without prejudice of her only cause of action is an
attempt to obtain interlocutory review of an order that would
not otherwise be appealable,3 namely, the order of the district
court granting Werner’s motion for summary judgment.
We were presented with a similar procedural tactic in Smith
v. Lincoln Meadows Homeowners Assn.4 In Smith, the plaintiff,
Michelle Smith, filed a premises liability action alleging that
a fall from a swing set owned by a homeowners association
caused broken bones, spinal injuries, disability, lost wages, and
multiple sclerosis. The association sought, and was granted,
partial summary judgment as to the allegation that the fall from
the swing caused Smith’s multiple sclerosis. The basis of that
summary judgment was the granting of a motion in limine with
respect to the expert testimony offered by Smith to support
that allegation.
1
Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (2007).
2
See Purdie v. Nebraska Dept. of Corr. Servs., 292 Neb. 524, 872 N.W.2d
895 (2016).
3
See Cerny v. Longley, 266 Neb. 26, 661 N.W.2d 696 (2003).
4
Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d
726 (2004).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
ADDY v. LOPEZ
Cite as 295 Neb. 635
Smith subsequently filed a motion to dismiss her sole
cause of action, without prejudice, seeking to reserve in that
motion the right to appeal from the partial summary judgment.
The district court granted Smith’s motion to dismiss without
prejudice and noted in the order of dismissal that Smith had
“‘expressly reserve[d] her right to appeal this Court’s Order
. . . granting partial summary judgment on the issue of mul-
tiple sclerosis.’”5
[3] We concluded that we lacked jurisdiction over Smith’s
appeal because the appeal was not from a final order. We held
that “a party cannot move to voluntarily dismiss a case with-
out prejudice, consent to entry of such an order, and then seek
interlocutory appellate review of an adverse pretrial order.”6
We then vacated the district court’s dismissal of Smith’s cause
of action, noting that the district court was without power
to voluntarily dismiss an action on the condition that Smith
could then appeal from the district court’s order of partial sum-
mary judgment.
We find Smith dispositive. Here, Addy seeks to dismiss with-
out prejudice her one cause of action as to the two remaining
parties. As in Smith, we conclude that she cannot do so in
order to create finality and confer appellate jurisdiction where
there would normally be none. To find appellate jurisdiction
in such cases would “effectively abrogate our long-established
rules governing the finality and appealability of orders, as
‘the policy against piecemeal litigation and review would be
severely weakened.’”7
CONCLUSION
Addy’s voluntary dismissal of her cause of action without
prejudice did not create a final order from which an appeal
could be brought. As such, we dismiss Addy’s appeal.
A ppeal dismissed.
5
Id. at 850, 678 N.W.2d at 728-29.
6
Id. at 856, 678 N.W.2d at 732.
7
Id. at 855, 678 N.W.2d at 731.