Lindsay Internat. Sales & Serv. v. Wegener , 297 Neb. 788 ( 2017 )


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    www.nebraska.gov/apps-courts-epub/
    10/06/2017 08:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    LINDSAY INTERNAT. SALES & SERV. v. WEGENER
    Cite as 
    297 Neb. 788
    Lindsay International Sales & Service,
    LLC, appellee, v. Michael J. Wegener,
    an individual, and Jerome P ribil,
    an individual, appellants.
    ___ N.W.2d ___
    Filed September 15, 2017.   No. S-16-1051.
    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.
    2.	 Statutes. Statutory interpretation is a question of law.
    3.	 Judgments: Appeal and Error. An appellate court reviews questions of
    law independently of the lower court’s conclusion.
    4.	 Jurisdiction: Time: Notice: Appeal and Error. In order to vest an
    appellate court with jurisdiction, a party must file a notice of appeal
    within 30 days of the judgment, decree, or final order from which the
    party is appealing.
    5.	 Motions for New Trial: Time: Notice: Appeal and Error. A timely
    motion for new trial terminates the running of the time for filing a notice
    of appeal, giving the party 30 days from the entry of the order denying
    the motion to file a notice of appeal.
    6.	 Statutes: New Trial. The plain language of the savings clause in Neb.
    Rev. Stat. § 25-1144.01 (Reissue 2016) does not contain a finality
    requirement.
    Petition for further review from the Court of Appeals,
    Moore, Chief Judge, and Inbody and Pirtle, Judges, on appeal
    thereto from the District Court for Platte County, Robert R.
    Steinke, Judge. Judgment of Court of Appeals reversed, and
    cause remanded for further proceedings.
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    LINDSAY INTERNAT. SALES & SERV. v. WEGENER
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    Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
    Hurd, Luers & Ahl, L.L.P., and Barry D. Geweke, of Stowell
    & Geweke, P.C., L.L.O., for appellants.
    John M. Lingelbach, of Koley Jessen, P.C., L.L.O., for
    appellee.
    H eavican, C.J., Wright, Cassel, Stacy, K elch, and
    Funke, JJ.
    Stacy, J.
    The Nebraska Court of Appeals dismissed this appeal, find-
    ing it was not timely filed. On further review, we apply the
    savings clause of Neb. Rev. Stat. § 25-1144.01 (Reissue 2016)
    and conclude the notice of appeal was timely filed. We there-
    fore reinstate the appeal and remand the matter to the Court of
    Appeals for further proceedings.
    FACTS
    Proceedings in District Court
    Lindsay International Sales & Service, LLC (Lindsay), sued
    Jerome Pribil and Michael J. Wegener to collect amounts
    due on a guaranty. The case was tried to a jury, and on July
    21, 2016, the jury returned a verdict in favor of Lindsay for
    $1,019,795.38. The court accepted the jury’s verdict on the
    record and discharged the jurors. The verdict forms were filed
    with the clerk the same day, but judgment on the verdict was
    not entered until 5 days later.
    Four days after the jury returned its verdict, Lindsay filed
    a motion for costs. On the same day, Pribil and Wegener filed
    a motion for new trial. Both motions were efiled on July 25,
    2016; the time stamp on the motion for costs shows it was
    accepted for filing approximately 2 hours before the motion
    for new trial.
    The next day, on July 26, 2016, the court entered judgment
    on the jury’s verdict. The judgment specifically noted, “The
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    assessment of court costs, which is the subject of a separate
    motion filed by [Lindsay] and scheduled for hearing to be con-
    ducted on August 5, 2016, will be addressed by separate order
    of the Court.” The judgment did not mention the motion for
    new trial, but in a separate order, the court set a hearing date of
    September 12 for the motion for new trial.
    On August 8, 2016, the court entered an order awarding
    Lindsay costs of $3,457.20. On October 14, the court entered
    an order overruling the motion for new trial. On November 9,
    Pribil and Wegener filed a notice of appeal. For easy reference,
    the following timeline summarizes the critical dates:
    • July 21: Jury returns verdict; court accepts verdict.
    • July 25: Lindsay files a motion for costs.
    • July 25: Pribil and Wegener file a motion for new trial.
    • July 26: Court enters judgment on the jury verdict.
    • August 8: Court grants Lindsay’s motion for costs.
    • September 12: Hearing held on motion for new trial.
    • October 14: Court overrules motion for new trial.
    • November 9: Pribil and Wegener file notice of appeal.
    Proceedings in Court of A ppeals
    After ordering the parties to show cause, the Court of
    Appeals dismissed the appeal without opinion, finding it lacked
    appellate jurisdiction. The court reasoned:
    The motion for new trial filed on July 25, 2016 was filed
    before the final order entered on August 8, 2016. See
    J & H Swine v. Hartington Concrete, 12 Neb[.] App. 885,
    
    687 N.W.2d 9
    (2004). A premature motion for new trial
    is a nullity and, thus, the November 9, 2016 notice of
    appeal was untimely. See Despain v. Despain, 
    290 Neb. 32
    , 
    858 N.W.2d 566
    [(2015)] (citing Macke v. Pierce, 
    263 Neb. 868
    , 
    643 N.W.2d 673
    (2002)).
    Pribil and Wegener filed a timely motion for rehearing,
    arguing the motion for new trial was effective, and not a nul-
    lity, under the plain language of § 25-1144.01. That statute
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    provides, in relevant part, that “[a] motion for a new trial filed
    after the announcement of a verdict or decision but before
    the entry of judgment shall be treated as filed after the entry
    of judgment and on the day thereof.” A divided panel of the
    Court of Appeals denied rehearing, reasoning that the motion
    for new trial had been filed “prior to the district court’s ruling
    on costs, i.e., before the announcement of a final judgment,”
    so the motion was a nullity. We granted Pribil and Wegener’s
    petition for further review.
    ASSIGNMENTS OF ERROR
    On further review, Pribil and Wegener assign, restated and
    consolidated, that the Court of Appeals erred in (1) dismissing
    their appeal as untimely, (2) concluding their motion for new
    trial was a nullity, and (3) misapplying the second sentence, or
    savings clause, of § 25-1144.01.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a factual
    dispute is determined by an appellate court as a matter of law.1
    [2] Statutory interpretation is a question of law.2
    [3] An appellate court reviews questions of law indepen-
    dently of the lower court’s conclusion.3
    ANALYSIS
    [4,5] In order to vest an appellate court with jurisdic-
    tion, a party must file a notice of appeal within 30 days of
    the judgment, decree, or final order from which the party is
    1
    Holdsworth v. Greenwood Farmers Co-op, 
    286 Neb. 49
    , 
    835 N.W.2d 30
          (2013); In re Adoption of Amea R., 
    282 Neb. 751
    , 
    807 N.W.2d 736
    (2011).
    2
    First Nat. Bank of Omaha v. Davey, 
    285 Neb. 835
    , 
    830 N.W.2d 63
    (2013);
    Professional Firefighters Assn. v. City of Omaha, 
    282 Neb. 200
    , 
    803 N.W.2d 17
    (2011).
    3
    Maclovi-Sierra v. City of Omaha, 
    290 Neb. 443
    , 
    860 N.W.2d 763
    (2015);
    VKGS v. Planet Bingo, 
    285 Neb. 599
    , 
    828 N.W.2d 168
    (2013).
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    appealing.4 But under § 25-1912(3)(a), a timely motion for
    new trial under § 25-1144.01 will terminate the running of
    the time for filing a notice of appeal, giving the party 30 days
    from the entry of the order denying the motion to file a notice
    of appeal.5
    Here, the timeliness of the notice of appeal filed by Pribil
    and Wegner depends on whether their motion for new trial
    was an effective terminating motion, or instead was a nullity.
    The Court of Appeals concluded the motion was a nullity,
    because it was filed before the announcement of a final order.
    Pribil and Wegner argue that the court did not properly apply
    § 25-1144.01, which provides:
    A motion for a new trial shall be filed no later than
    ten days after the entry of the judgment. A motion for
    a new trial filed after the announcement of a verdict
    or decision but before the entry of judgment shall be
    treated as filed after the entry of judgment and on the
    day thereof.
    The second sentence of § 25-1144.01 has been referred to as a
    “savings clause”6 and was added to the statute in 2004. Before
    discussing the application of the savings clause to the present
    appeal, we provide some historical perspective.
    History of § 25-1144.01
    In Macke v. Pierce,7 decided in 2002, we interpreted an ear-
    lier version of § 25-1144.01. The version in effect at that time
    provided that a motion for new trial had to be filed “no later
    4
    Neb. Rev. Stat. § 25-1912(1) (Reissue 2016). See Despain v. Despain, 
    290 Neb. 32
    , 
    858 N.W.2d 566
    (2015).
    5
    See § 24-1144.01.
    6
    Despain v. Despain, supra note 
    4, 290 Neb. at 43
    , 858 N.W.2d at 574
    (Cassel, J., concurring).
    7
    Macke v. Pierce, 
    263 Neb. 868
    , 
    643 N.W.2d 673
    (2002) (superseded by
    statute as stated in Despain v. Despain, supra note 4).
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    than ten days after the entry of judgment.”8 Macke held that a
    motion for new trial filed before the entry of a judgment was
    a nullity, as was the trial court’s ruling on such a motion for
    new trial, and that such a motion for new trial did not termi-
    nate the time for taking an appeal.
    In 2004, presumably in response to our decision in Macke,
    the Legislature added the second sentence, or savings clause,
    to § 25-1144.01. We addressed the effect of this statutory
    change in Despain v. Despain.9 In that dissolution action, the
    husband filed a motion for new trial after the court distrib-
    uted an unsigned journal entry reciting its substantive deci-
    sion, but before the court filed the signed dissolution decree.
    A few days later, the court filed a signed decree. The court
    ultimately overruled the motion for new trial, and the husband
    filed an appeal within 30 days of the order overruling his
    motion for new trial. The wife asserted the appeal should be
    dismissed as untimely, arguing the motion for new trial was
    a nullity and did not terminate the time for filing an appeal
    because the motion had been filed before the signed decree
    was entered.
    We rejected this argument in light of the new savings
    clause language in § 25-1144.01. We noted that “under the
    2004 amendment, a motion for new trial filed after the
    announcement of the decision but before the entry of the
    judgment is no longer a nullity.”10 We implicitly held that
    the unsigned journal entry provided to counsel was the
    requisite “‘announcement of a verdict or decision’” under
    § 25-1144.01, and we reasoned that because the motion for
    new trial was filed after the announcement of the court’s
    decision but before the court entered judgment by filing the
    signed decree, it was an effective terminating motion under
    8
    See § 25-1144.01 (Cum. Supp. 2000).
    9
    Despain v. Despain, supra note 4.
    10
    
    Id. at 39,
    858 N.W.2d at 572.
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    the plain language of the savings clause in § 25-1144.01.11
    Consequently, we found the notice of appeal was timely,
    because it was filed within 30 days after the motion for new
    trial was overruled.
    A pplication of § 25-1144.01
    to P resent Case
    Pribil and Wegener contend that the savings clause of
    § 25-1144.01 rendered their motion for new trial effective and
    timely. They argue their motion was “filed after the announce-
    ment of a verdict or decision but before the entry of judgment”
    and thus must be “treated as filed after the entry of judgment
    and on the day thereof.”12 At oral argument, Lindsay agreed
    with this argument. We do too.
    The motion for new trial was filed after the court announced
    the jury’s verdict, but before the entry of judgment. As such,
    the plain language of § 25-1144.01 requires that the motion
    be treated as filed “after the entry of judgment and on the
    day thereof,” making it a timely and effective terminating
    motion.13
    The Court of Appeals’ reasoning in its order denying the
    motion for rehearing suggests it was concerned by the fact
    that Lindsay filed a motion for costs just before the motion
    for new trial was filed. Relying on its decision in J & H
    Swine v. Hartington Concrete,14 the Court of Appeals reasoned,
    “Because the appellants filed their motion for new trial prior
    to the district court’s ruling on costs, i.e., before the announce-
    ment of a final judgment, the filing of their motion for a new
    trial was ineffective.” (Emphasis supplied.) But the reasoning
    of J & H Swine is not applicable here.
    11
    
    Id. at 38,
    858 N.W.2d at 571.
    12
    See, § 25-1144.01 (Reissue 2016); Despain v. Despain, supra note 4.
    13
    
    Id. 14 J
    & H Swine v. Hartington Concrete, 
    12 Neb. Ct. App. 885
    , 
    687 N.W.2d 9
          (2004).
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    J & H Swine was based on this court’s opinion in In re
    Guardianship & Conservatorship of Woltemath,15 but neither
    J & H Swine nor In re Guardianship & Conservatorship of
    Woltemath addressed the savings clause under § 25-1144.01.
    Instead, both cases addressed the savings clause in § 25-1912(2),
    a statute that governs notices of appeal.
    The savings clause in § 25-1912(2) is similar to the sav-
    ings clause in § 25-1144.01, with one important distinction:
    § 25-1912(2) expressly references “final” orders:
    A notice of appeal or docket fee filed or deposited after
    the announcement of a decision or final order but before
    the entry of the judgment, decree, or final order shall be
    treated as filed or deposited after the entry of the judg-
    ment, decree, or final order and on the date of entry.
    (Emphasis supplied.)
    In re Guardianship & Conservatorship of Woltemath
    focused on the plain language of § 25-1912(2) and held
    that an “‘announcement of a decision or final order’” under
    § 25-1912(2) must be of “a decision or final order that would
    have been appealable if followed immediately by the entry of
    judgment.”16 In other words, to trigger the savings clause for
    premature notices of appeal under § 25-1912(2), an announce-
    ment must pertain to a decision or order that, once entered,
    would be final and appealable.
    The Court of Appeals appears to have applied this same
    reasoning to motions for new trial under § 25-1144.01,
    and concluded that because the motion for new trial was
    filed before the district court’s decision on the motion for
    costs, it was not filed after the requisite “announcement of a
    15
    In re Guardianship & Conservatorship of Woltemath, 
    268 Neb. 33
    , 
    680 N.W.2d 142
    (2004).
    16
    In re Guardianship & Conservatorship of Woltemath, supra note 
    15, 268 Neb. at 40
    , 680 N.W.2d at 148, citing FirsTier Mtge. Co. v. Investors
    Mtge. Ins. Co., 
    498 U.S. 269
    , 
    111 S. Ct. 648
    , 
    112 L. Ed. 2d 743
    (1991).
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    verdict or decision.”17 But reading a finality requirement into
    § 25-1144.01 is inconsistent with the plain language of the
    statute. Appellate courts give statutory language its plain and
    ordinary meaning and will not resort to interpretation to ascer-
    tain the meaning of statutory words which are plain, direct,
    and unambiguous.18 An appellate court will not read into a
    statute a meaning that is not there.19
    The plain and unambiguous language of § 25-1144.01, unlike
    § 25-1912(2), contains no requirement that the “announce-
    ment” be of a final “verdict or decision.”20 And the instant case
    illustrates the practical difficulty of reading a finality require-
    ment into the savings clause under § 25-1144.01.
    Here, Pribil and Wegener filed their motion for new trial
    after the jury’s verdict was announced on the record. From
    their perspective, the substantive decision on those proceed-
    ings had been made, so they filed their motion for new trial
    even though the court had not yet entered judgment on that
    verdict. This appears to be precisely the circumstance the
    Legislature intended to address by adding the savings clause
    to § 25-1144.01 in 2004. The filing of a motion for costs
    after the announcement of the verdict but before the motion
    for new trial was filed does not change the analysis under
    § 25-1144.01.
    [6] The plain language of the savings clause in § 25-1144.01
    does not contain a finality requirement. Section 25-1144.01
    merely requires an “announcement of a verdict or decision.”
    Here, the motion for new trial was filed after the announce-
    ment of the jury’s verdict and before the entry of judgment.
    17
    See § 25-1144.01.
    18
    Schuyler Apt. Partners v. Colfax Cty. Bd. of Equal., 
    279 Neb. 989
    , 
    783 N.W.2d 587
    (2010); State ex rel. Amanda M. v. Justin T., 
    279 Neb. 273
    ,
    
    777 N.W.2d 565
    (2010).
    19
    DMK Biodiesel v. McCoy, 
    290 Neb. 286
    , 
    859 N.W.2d 867
    (2015); Flores
    v. Flores-Guerrero, 
    290 Neb. 248
    , 
    859 N.W.2d 578
    (2015).
    20
    See § 25-1144.01.
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    As such, it fell within the savings clause under § 25-1144.01,
    and must be treated as having been filed immediately after the
    judgment was entered on the jury’s verdict. The motion for
    new trial was an effective filing and was not a nullity.
    Because a proper and timely motion for new trial termi-
    nates the running of time for filing a notice of appeal,21 the
    appeal time did not start to run until the motion for new trial
    was ruled upon on October 14, 2016. Pribil and Wegener filed
    their notice of appeal within 30 days of that date, and their
    appeal should not have been dismissed as untimely.
    CONCLUSION
    For the foregoing reasons, we reinstate the appeal and
    remand the cause to the Court of Appeals for further
    proceedings.
    R eversed and remanded for
    further proceedings.
    Miller-Lerman, J., not participating.
    21
    See Despain v. Despain, supra note 4.