Addy v. Lopez
295 Neb. 635
| Neb. | 2017Background
- Raven J. Addy-Cruz died after being struck from behind on June 7, 2012; driver Lyle J. Carman (employed by Lopez Trucking) caused the crash while performing work for Werner Construction, Inc. (Werner).
- Rebecca G. Addy, personal representative, sued Carman, Lopez (owner), and Werner for wrongful death; Werner moved for summary judgment and the district court granted it.
- Post-summary-judgment, Addy moved for judgment on the pleadings (unresolved), the case was briefly dismissed for case-progression reasons and later reinstated.
- On September 8, 2015, Addy, Carman, and Lopez stipulated to dismiss the remaining claims without prejudice, expressly stating the dismissal was to permit an appeal of the order granting Werner summary judgment; dismissal entered September 9.
- Addy then filed a notice of appeal asserting the dismissal rendered Werner’s earlier summary-judgment order final and appealable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction exists over the appeal from Werner’s summary-judgment order after the plaintiff voluntarily dismissed her remaining claims without prejudice | Addy argued the agreed dismissal made the prior summary-judgment order final and appealable | Werner argued the dismissal without prejudice did not create a final, appealable order and the court lacks jurisdiction | Appeal dismissed for lack of a final, appealable order; voluntary dismissal without prejudice cannot be used to obtain interlocutory review |
Key Cases Cited
- Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726 (Neb. 2004) (holding a plaintiff may not voluntarily dismiss without prejudice to manufacture finality and obtain interlocutory appellate review)
- Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (Neb. 2007) (discusses finality and appealability principles)
- Cerny v. Longley, 266 Neb. 26, 661 N.W.2d 696 (Neb. 2003) (procedural context on interlocutory appeals and final orders)
- Purdie v. Nebraska Dept. of Corr. Servs., 292 Neb. 524, 872 N.W.2d 895 (Neb. 2016) (standards for review of jurisdictional legal questions)