First State Bank & Trust Co. v. Parkview Development

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
FIRST STATE BANK & TRUST CO. V. PARKVIEW DEVELOPMENT
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
FIRST STATE BANK & TRUST COMPANY, FREMONT, NEBRASKA,
A NEBRASKA BANKING CORPORATION, APPELLEE,
V.
PARKVIEW DEVELOPMENT, INC., A NEBRASKA CORPORATION, APPELLEE, AND
JAMES A. DAVIS AND DEBRA A. DAVIS, HUSBAND AND WIFE, APPELLANTS.
Filed January 14, 2014. No. A-12-1131.
Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Appeal
dismissed.
James M. Dake for appellant.
Bradley D. Holtorf, of Sidner, Svoboda, Schilke, Thomsen, Holtorf, Boggy, Nick &
Placek, for appellee First State Bank & Trust Company.
John A. Svoboda, of Gross & Welch, P.C., L.L.O., for appellee Parkview Development,
Inc.
IRWIN, MOORE, and BISHOP, Judges.
IRWIN, Judge.
I. INTRODUCTION
James A. Davis and Debra A. Davis, husband and wife, filed a notice of appeal from an
order of the district court for Dodge County, Nebraska, granting summary judgment in an action
between First State Bank & Trust Company (FSB) and Parkview Development, Inc. (Parkview).
The Davises were not parties to the action between FSB and Parkview, although there had
previously been a request for interpleader and a complaint for intervention filed. Although the
district court orally indicated an intent to deny the Davises’ complaint for intervention, the
record presented on appeal does not include any written order taking such action. Because the
denial of intervention is the only avenue for the Davises to seek appellate review in this case in
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which they were never made parties, and because there has not yet been any final order entered
on the complaint for intervention, we conclude that we lack jurisdiction, and accordingly, we
dismiss this appeal.
II. BACKGROUND
On May 17, 2012, the initial complaint in this action was filed by FSB against Parkview.
In the complaint, FSB sought an order directing Parkview to record an ownership interest by
FSB in shares of Parkview stock that the Davises had individually pledged as collateral for a loan
that the Davises had previously defaulted on. That complaint named the Davises both as
defendants, but only in their official capacities as officers of Parkview. The officers were all
subsequently dismissed from the action.
On June 21, 2012, an “Affidavit for Interpleader” was filed. The affidavit was filed by
James, as president of Parkview, and in it he asserted that the Davises were third parties making
a claim to the shares of stock that were the subject of FSB’s complaint. In the affidavit, James
also asserted that the Davises should be ordered to appear and that they should be “allowed to
make themselves the defendant in this action in lieu of [Parkview].”
The record indicates that a hearing was held on July 10, 2012. No transcription of that
hearing has been presented to this court on appeal. On August 17, the district court entered a
journal entry denying the request for interpleader. In so doing, the court indicated that it was
denying the Davises’ request to interplead. A subsequent order nunc pro tunc indicates that the
request to interplead was, apparently, actually brought by Parkview and not by the Davises. No
appeal was filed from the judgment denying interpleader.
On August 28, 2012, the Davises, as husband and wife, filed a complaint seeking to
intervene in the action. On September 27, FSB filed a motion to strike the complaint to
intervene. At a hearing held on the motion to strike, FSB argued that the Davises had not been
granted leave to intervene and that the Davises did not satisfy any statutory grounds for being
allowed to intervene. The Davises argued that they had a right to intervene.
At the conclusion of the hearing on FSB’s motion to strike, the court made an oral
pronouncement that “the Motion to Strike filed by [FSB] in this matter, the Court will rule in
favor of the Motion to Strike. And I will strike the [complaint to intervene] that has been filed by
[the Davises].” The court then asked FSB’s counsel “to prepare an order setting forth [the
court’s] decision.”
The record presented on appeal does not indicate that any written order was ever signed,
file stamped, or entered to reflect the district court’s denial and striking of the Davises’
complaint to intervene. Indeed, in the praecipe for transcript filed on appeal, the Davises
requested the clerk of the district court to “certify that the record does not contain any Order,
Journal Entry or other document filed by the District Court” striking the complaint to intervene.
On November 5, 2012, FSB filed a motion for summary judgment. The court entered an
order granting summary judgment on behalf of FSB and against Parkview on November 16.
Parkview did not appeal from this grant of summary judgment.
On November 29, 2012, the Davises filed a notice of appeal, purporting to appeal from
“the order herein, granting summary judgment to [FSB].” The notice of appeal made no
reference to the district court’s denial of interpleader or denial and striking of the complaint to
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intervene. The Davises brief on appeal, however, argues entirely that the court erred in not
allowing them to be parties to this action and that they were indispensable parties to the suit.
On our review of this case, we became concerned about the lack of any final order
denying the attempt to intervene and the unusual procedural posture of the Davises’ attempting
to appeal a summary judgment order in an action to which they were not parties. As a result, we
issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction,
and in our order to show cause, we set forth much of the analysis that appears below to
demonstrate that our concern was the lack of a final order entered denying intervention. The
Davises responded to the order to show cause not by obtaining or attempting to obtain a final
order denying intervention, but by again asserting the arguments set forth in their appellate brief
and by rhetorically asking, “How can a movant timely appeal the denial of a motion upon which
a proper final judgment was never entered?”
III. ANALYSIS
The Davises were not a party to this action when summary judgment was granted. They
are not parties who can seek review of the summary judgment order. The substance of their
appeal is that the district court erred in denying their complaint seeking to intervene, that they
were necessary parties, and that the district court could not grant summary judgment to FSB
without them being parties. However, they failed to secure a final order on their request to
intervene, and we lack jurisdiction at this time.
Neb. Rev. Stat. § 25-1301 (Reissue 2008) sets forth two ministerial requirements for a
final judgment from which an appeal may be taken: rendition of judgment, defined as the act of
the court or a judge thereof in making and signing a written notation of the relief granted or
denied, and the placing of a file stamp and date upon the judgment by the clerk of the court. See,
In re Trust Created by Crawford, 20 Neb. App. 502, 826 N.W.2d 284 (2013); State v. Brown, 12
Neb. App. 940, 687 N.W.2d 203 (2004). Final orders must be signed by the judge as well as file
stamped and dated by the clerk. In re Trust Created by Crawford, supra; State v. Brown, supra.
Announcement of a decision may come orally, but does not constitute rendition of a judgment.
Id.
An order denying a request to intervene in legal proceedings is a final order for purposes
of appeal. Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985).
The party seeking to intervene has a right to appeal from the court’s denial of intervention, not
from an allegedly void judgment. See Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908)
(where party seeks to intervene after entry of void judgment and petition to intervene is
dismissed, time for appealing dates from dismissal and not date of void judgment).
In the present case, the Davises are entitled to seek to intervene and are entitled to appeal
from a final order denying their request to intervene. Because they are not parties to the action,
they are not entitled to appeal from a judgment entered between the parties to the action on the
basis of asserting that the judgment is “void”; rather, they must appeal from the denial of their
attempt to intervene. See Shold v. Van Treeck, supra. To do so, however, they must present a
final order denying their attempt to intervene.
In this case, the record includes an oral pronouncement denying the Davises’ request to
intervene. That, however, is not an appealable rendition of judgment. See, In re Trust Created by
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Crawford, supra; State v. Brown, supra. The Davises’ praecipe for transcript, and the response to
our order to show cause, clearly suggest that no such order has ever been entered. In response to
our order to show cause, the Davises did not request that the district court enter such a final
order, but, instead, iterated the arguments set forth in their appellate brief about why they should
have been allowed to intervene and rhetorically inquired how to appeal when no final judgment
has been entered. The answer to that rhetorical question is that one cannot appeal without a final
order. The record does not indicate that the Davises have ever taken any action to have the
district court enter a final order. As such, we lack jurisdiction to hear their appeal and the appeal
is dismissed.
APPEAL DISMISSED.
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