Lindsay Internat. Sales & Serv. v. Wegener
901 N.W.2d 278
| Neb. | 2017Background
- Lindsay sued Pribil and Wegener on a guaranty; a jury returned a verdict for Lindsay on July 21, 2016, which the court accepted on the record. Judgment on the verdict was entered July 26, 2016.
- On July 25, 2016, Lindsay filed a motion for costs; on the same day Pribil and Wegener filed a motion for new trial (the costs motion was e-filed about two hours earlier).
- The court entered an order awarding costs on August 8, 2016, held a hearing on the new-trial motion September 12, and overruled the new-trial motion on October 14, 2016.
- Pribil and Wegener filed a notice of appeal on November 9, 2016; the Court of Appeals dismissed the appeal as untimely, concluding the motion for new trial was a nullity because it was filed before a final judgment.
- The Nebraska Supreme Court granted further review to decide whether the motion for new trial was effective under the savings clause of Neb. Rev. Stat. § 25-1144.01, and whether the appeal was therefore timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion for new trial filed after announcement of the jury verdict but before entry of judgment was effective under § 25-1144.01 | Lindsay (plaintiff) agreed the savings clause applies; the motion was filed after announcement of verdict and thus is treated as filed on the day of entry of judgment | Pribil and Wegener (defendants/appellants) argued the motion was effective under the statute and terminated the appeal period | Held: Motion was effective; § 25-1144.01 treats such a motion as filed after entry of judgment and on that day |
| Whether a post-announcement-but-pre-judgment motion for costs filed before the new-trial motion prevents the savings clause from applying | Lindsay argued the costs motion made judgment nonfinal and thus the new-trial motion was premature | Pribil and Wegener argued the jury announcement satisfied § 25-1144.01 regardless of the costs motion | Held: The costs motion does not negate the jury’s announcement; § 25-1144.01 has no finality requirement and the new-trial motion fell within the savings clause |
| Whether the Court of Appeals correctly applied Woltemath/J & H Swine reasoning requiring a finality element | Court of Appeals read Woltemath/J & H Swine to require an announcement of a final order to trigger savings clauses | Defendants argued Woltemath addresses a different statute (§ 25-1912) that expressly references "final" orders, so it is inapplicable | Held: Woltemath and J & H Swine are distinguishable; § 25-1144.01 contains no "final" wording and must be applied as written |
| Whether the appeal was timely given the overruling date of the new-trial motion | Lindsay argued appeal was untimely if the new-trial motion was a nullity | Defendants argued appeal was timely because the motion for new trial was effective and gave 30 days from its denial | Held: Because the new-trial motion was effective under § 25-1144.01, the time to appeal began at the order denying it; the November 9 notice of appeal was timely |
Key Cases Cited
- Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (Neb. 2002) (held that under the pre-2004 statute a motion for new trial filed before entry of judgment was a nullity)
- Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (Neb. 2015) (interpreted the 2004 savings clause in § 25-1144.01 to validate motions filed after announcement but before entry of judgment)
- J & H Swine v. Hartington Concrete, 12 Neb. App. 885, 687 N.W.2d 9 (Neb. Ct. App. 2004) (applied a finality-focused analysis under a different savings provision and was distinguished here)
- In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (Neb. 2004) (construed § 25-1912(2)’s savings clause to require an announcement of a decision or final order; distinguished from § 25-1144.01)