Lindsay Internat. Sales & Serv. v. Wegener
297 Neb. 788
Neb.2017Background
- Lindsay obtained a jury verdict for $1,019,795.38 on July 21, 2016; the court accepted the verdict and jurors were discharged the same day, but formal judgment was entered July 26, 2016.
- On July 25, 2016 Lindsay filed a motion for costs; on the same day (filed ~2 hours later) defendants Pribil and Wegener filed a motion for new trial — after the jury’s announcement but before entry of judgment.
- The district court entered judgment on July 26 and later entered an order awarding costs to Lindsay on August 8, 2016.
- The court held a hearing on the motion for new trial on September 12 and overruled it on October 14, 2016.
- Pribil and Wegener filed a notice of appeal on November 9, 2016; the Nebraska Court of Appeals dismissed the appeal as untimely, viewing the July 25 motion for new trial as a nullity.
- The Nebraska Supreme Court granted further review and considered whether the savings clause in Neb. Rev. Stat. § 25-1144.01 made the pre-judgment motion for new trial effective to toll the appeal period.
Issues
| Issue | Plaintiff's Argument (Lindsay) | Defendant's Argument (Pribil & Wegener) | Held |
|---|---|---|---|
| Whether a motion for new trial filed after announcement of a verdict but before entry of judgment is effective to toll the appeal period under § 25-1144.01 | The motion was premature and ineffective because it was filed before final judgment/costs were entered | The motion was filed after announcement of the verdict and, under the savings clause of § 25-1144.01, must be treated as filed after entry of judgment and thus is an effective terminating motion | The Supreme Court held the motion was effective under § 25-1144.01 (no finality requirement), so the appeal was timely |
Key Cases Cited
- Macke v. Pierce, 263 Neb. 868 (2002) (prior rule holding pre-judgment motions for new trial were nullities; later superseded by statute)
- Despain v. Despain, 290 Neb. 32 (2015) (interpreting 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 (2004) (Court of Appeals decision applying a different savings clause analysis to notices of appeal/costs)
- In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33 (2004) (interpreting savings clause in § 25-1912(2) to require an announcement of a decision or final order for premature notices of appeal)