Anderson v. Finkle, 296 Neb. 797

Background

In May 2013 Finkle signed a $50,000 promissory note to Anderson to fund a College World Series beer garden; Finkle failed to pay after the venture failed.
Anderson sued for breach of contract and quantum meruit; bench trial was held August 25, 2015.
Anderson died October 2, 2015; a personal representative (Janice Anderson) was appointed October 30, 2015.
The district court entered judgment for Anderson on November 30, 2015, and later denied Finkle’s motion for new trial on January 29, 2016 — both actions occurred after Anderson’s death but before a revivor order.
The estate filed a motion for revivor January 25, 2016; the district court entered an order of revivor March 1, 2016; Finkle filed two appeals challenging (1) the postdeath judgment and denial of new trial and (2) the revivor order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court had jurisdiction to enter judgment and deny posttrial relief after plaintiff’s death but before revivor	Anderson (estate) proceeded that posttrial orders were valid once revived	Finkle argued orders entered after Anderson’s death (before revivor) were void for lack of jurisdiction	Court held orders entered after death and before revivor were void for lack of jurisdiction and an appeal from them did not confer appellate jurisdiction
Whether an order of revivor is a final, appealable order	Estate moved to revive and treated revivor as reviewable on appeal	Finkle appealed the revivor order and underlying orders	Court held an order of revivor is not a final appealable order; appeal dismissed for lack of jurisdiction
Whether the trial court’s November 30 judgment remains effective despite lapse in procedural revival	Estate contended revival cured defects and allowed review of underlying judgment	Finkle contended the underlying judgment was a nullity because entered without jurisdiction	Court concluded the judgment was void as to Anderson when entered postdeath without revivor and thus could not be the basis for appellate jurisdiction
Merits challenges to enforceability of the promissory note (parol evidence, credibility, consideration, personal liability)	Anderson argued note was valid and enforceable	Finkle argued parol evidence should be allowed, testimony was untrustworthy, lack of consideration, and no personal liability	Court did not reach merits: dismissed appeals for lack of jurisdiction and nonfinality, so merits issues were not decided

Key Cases Cited

Platte Valley Nat. Bank v. Lasen, 273 Neb. 602 (discusses revivor procedure and that revivor orders are not final)
Fox v. Nick, 265 Neb. 986 (death of party suspends action until revived; actions taken without revivor have no force)
In re Conservatorship of Franke, 292 Neb. 912 (statutory interpretation and jurisdiction principles)
State v. Bracey, 261 Neb. 14 (void orders entered without jurisdiction are nullities)
Holste v. Burlington Northern RR. Co., 256 Neb. 713 (orders reviving actions are not appealable until final judgment)
In re Interest of Trey H., 281 Neb. 760 (reiterating that revivor orders are nonfinal)
Hallie Mgmt. Co. v. Perry, 272 Neb. 81 (procedural review of nonfinal orders)