Lindsay Internat. Sales & Serv. v. Wegener
297 Neb. 788
| Neb. | 2017Background
- Lindsay sued Pribil and Wegener on a guaranty; a jury returned a verdict for Lindsay on July 21, 2016, which the court announced and accepted on the record.
- Judgment on the verdict was not entered until July 26, 2016. Between announcement and entry, Lindsay filed a motion for costs (July 25) and defendants filed a motion for new trial (July 25, timestamped after the costs motion).
- The court awarded costs on August 8, 2016; a hearing on the motion for new trial occurred September 12; the motion was overruled 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, treating the July 25 motion for new trial as a nullity because it was filed before a final order on costs.
- The Nebraska Supreme Court granted further review to resolve whether the § 25-1144.01 savings clause made the pre-judgment motion for new trial effective and thus tolled the appeal deadline.
Issues
| Issue | Plaintiff's Argument (Lindsay) | Defendant's Argument (Pribil & Wegener) | Held |
|---|---|---|---|
| Was the motion for new trial filed July 25 an effective terminating motion under Neb. Rev. Stat. § 25-1144.01? | The motion was premature because it was filed before the court ruled on costs and before a final judgment; thus it is ineffective. | The motion was filed after announcement of the verdict but before entry of judgment and is saved by § 25-1144.01, so it must be treated as filed on the day of judgment. | The Supreme Court held the motion was effective under § 25-1144.01: it was filed after announcement of the verdict and before entry of judgment and thus is treated as filed on the day of judgment. |
| Did filing a motion for costs between announcement and the new-trial filing make the new-trial motion a nullity? | The intervening costs motion meant no final announcement had been made, so the new-trial motion was premature. | The costs motion does not change § 25-1144.01; the announcement of the verdict was sufficient. | The court rejected reliance on J & H Swine and held the costs motion did not nullify the new-trial motion where the new-trial motion followed the jury announcement. |
| Does § 25-1144.01 require that the announcement be of a final decision to trigger the savings clause? | N/A (Lindsay urged a finality reading via analogous precedents). | § 25-1144.01 requires only an “announcement of a verdict or decision” without a finality requirement. | The court held § 25-1144.01’s plain language contains no finality requirement; no such requirement should be read in. |
| Was the appeal timely given the foregoing? | N/A | Because the motion for new trial was effective, time to appeal was tolled until denial (Oct. 14); the Nov. 9 notice was timely. | The Supreme Court reinstated the appeal and remanded, holding the November 9 notice was timely. |
Key Cases Cited
- Macke v. Pierce, 263 Neb. 868 (2002) (held pre-judgment motions for new trial were nullities prior to 2004 amendment)
- Despain v. Despain, 290 Neb. 32 (2015) (applied 2004 savings clause to treat a pre-judgment new-trial motion filed after announcement as effective)
- In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33 (2004) (interpreted a different savings clause requiring an announcement of a decision or final order)
- J & H Swine v. Hartington Concrete, 12 Neb. App. 885 (2004) (Court of Appeals decision relying on Woltemath to treat some premature filings as ineffective)
- Firstier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991) (discussed in Woltemath regarding the meaning of an ‘announcement’ for savings clauses)