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 accepted on the record that day. Judgment was entered July 26, 2016.
- On July 25, 2016, Lindsay filed a motion for costs; on the same day (about 2 hours later) Pribil and Wegener filed a motion for new trial (filed after the jury’s verbal announcement but before entry of judgment).
- The court entered an order awarding costs on August 8, 2016. A hearing on the new-trial motion occurred September 12, and the court overruled the 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, treating the July 25 motion for new trial as a nullity.
- The Nebraska Supreme Court granted further review to resolve whether the § 25-1144.01 savings clause made the pre-judgment new-trial motion effective (thereby tolling the appeal clock until the motion was overruled).
Issues
| Issue | Plaintiff's Argument (Lindsay) | Defendant's Argument (Pribil & Wegener) | Held |
|---|---|---|---|
| Whether the motion for new trial filed after announcement of verdict but before entry of judgment was effective or a nullity | The motion was ineffective because it was filed before final judgment / before costs were resolved | The motion was filed after announcement of the verdict and, under the § 25-1144.01 savings clause, should be treated as filed after entry of judgment | The motion was effective; § 25-1144.01 treats a motion filed after announcement of a verdict but before entry of judgment as filed on the day of entry, so it was not a nullity |
| Whether a separate post-verdict motion (for costs) filed between announcement and the new-trial motion changes § 25-1144.01’s application | Motion for costs meant no final announcement occurred, so new-trial motion was premature | The subsequent costs motion does not alter the plain language of § 25-1144.01; the jury verdict announcement suffices | The costs motion does not negate the savings clause; the new-trial motion remains effective |
| Whether § 25-1144.01 contains an implicit finality requirement (i.e., announcement must be of a final, appealable decision) | Court of Appeals (and cases applying § 25-1912(2)) read a finality requirement into analogous savings language | Defendants: plain text of § 25-1144.01 requires only an "announcement of a verdict or decision"; no finality requirement exists | The court held § 25-1144.01 contains no finality requirement; plain language controls |
| Whether the appeal was timely where defendants filed notice within 30 days of denial of the new-trial motion | Lindsay: appeal was untimely because new-trial motion was nullity and appeal period ran from entry of judgment | Defendants: appeal was timely because the new-trial motion tolled the appeal period until it was overruled; notice filed within 30 days of that ruling | Held the notice of appeal was timely; appeal reinstated and remanded to Court of Appeals |
Key Cases Cited
- Macke v. Pierce, 263 Neb. 868 (interpreting pre-2004 law that motions filed before judgment were nullities)
- Despain v. Despain, 290 Neb. 32 (construing the 2004 savings-clause amendment to § 25-1144.01 to make post-announcement, pre-judgment motions effective)
- In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33 (interpreting the finality-focused savings clause in § 25-1912(2))
- J & H Swine v. Hartington Concrete, 12 Neb. App. 885 (Court of Appeals decision applying finality reasoning under a different statutory savings clause)