Saint James Apt. Partners v. Univeral Surety Co.
316 Neb. 419
Neb.2024Background
- Plaintiffs (Saint James Apartment Partners, LLC; Central States Development, LLC; and John C. Foley) filed a civil action against Universal Surety Company, alleging damages from negligent conduct by notary public Patrick M. Flood covered by Universal’s bond.
- The complaint alleged that Flood notarized property deeds contrary to corporate resolutions and later directed changes in the executed, notarized documents, resulting in alleged statutory breaches and damages.
- The plaintiffs sued only the surety company (Universal), not naming or joining Flood in the action.
- Universal moved to dismiss the complaint, arguing that the notary was a necessary party under Neb. Rev. Stat. § 64-109 and that the complaint failed to state a claim.
- The district court dismissed the complaint without prejudice, holding § 64-109 required the notary to be joined.
- Plaintiffs appealed, arguing the statute does not require the notary to be joined in a suit against the surety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal without prejudice for failure to join a necessary party is a final appealable order | The dismissal ended the case as brought and should be appealable | Dismissals without prejudice are not final, so court lacked jurisdiction to consider the appeal | Such dismissal is final and appealable when it ends the action without leave to amend |
| Does Neb. Rev. Stat. § 64-109 require the notary to be joined as a necessary party in an action on the notary's bond? | Statute allows plaintiff to sue either surety or notary, not both; joinder not required | Statute requires both notary and surety to be joined in one action | The statute does not require the notary to be joined; plaintiff may sue just the surety |
Key Cases Cited
- Kroncke v. Madsen, 56 Neb. 609 (Neb. 1898) (discussed ability to sue surety without principal)
- Trausch v. Hagemeier, 313 Neb. 538 (Neb. 2023) (interpreted related notary bond claims and joinder)
- Carlson v. Allianz Versicherungs-AG, 287 Neb. 628 (Neb. 2014) (finality of dismissals for failure to join necessary parties)
- Akins v. Chamberlain, 164 Neb. 428 (Neb. 1957) (finality of dismissals affecting substantial rights)