BERT CATTLE COMPANY, INC., AND STANLEY D. BERT, APPELLANTS, V. JAY W. WARREN ET AL., APPELLEES.
No. 88-986
Supreme Court of Nebraska
July 19, 1991
471 N.W.2d 764
For the reasons expressed in my concurrence and dissent filed in MAPCO Ammonia Pipeline v. State Bd. of Equal., ante p. 565, 471 N.W.2d 734 (1991), I also concur in part and dissent in part concerning the majority‘s opinion filed in this appeal.
Ronald L. Eggers and Robert D. Kinsey, of Heron, Burchette, Ruckert & Rothwell, for appellants.
Michael A. Nelsen, of Dixon & Dixon, P.C., for appellees.
PER CURIAM.
The plaintiffs appeal the district court for Douglas County‘s refusal to vacate its earlier order dismissing the plaintiffs’ second amended petition and refusal to permit the plaintiffs to file a third amended petition. We affirm.
Bert Cattle Company, Inc., and Stanley D. Bert, herein collectively designated “Bert,” brought an action in the district court for Douglas County against Jay W. Warren; J & W Cattle Company; J. W. Cattle Corporation; Jay W. and Mabel M. Warren, in their capacity as the coexecutors of the estate of Ward B. Warren, deceased; and the Home National Bank of Arkansas City, Kansas. All defendants are hereinafter referred to as “Warren.”
In an amended petition filed on June 25, 1987, Bert alleged in substance (1) that a third party converted the plaintiffs’ funds; (2) that the proceeds from those funds, which were subject to a constructive trust for the benefit of the plaintiffs, were transferred to one or more of the defendants; and (3) that there should be an accounting. On July 23, 1987, the defendants demurred to the amended petition, claiming that another action was pending between the same parties for the same cause and that the petition did not state facts sufficient to constitute a cause of action. See
On September 24, 1987, Bert filed a second amended petition, which in essence contained the same allegations as the amended petition. Warren, on April 12, 1988, demurred on three grounds: (1) The petition failed to allege facts sufficient to state a cause of action, (2) there was a defect of parties defendant, and (3) another action was pending between the same parties for the same cause. Without specifying the basis for its ruling, the district court entered an order on April 28, 1988, sustaining Warren‘s demurrer and granting Bert 2 weeks to file a third amended petition.
Bert timely filed a motion for a new trial. During a hearing on the motion for a new trial, Bert tendered a third amended petition. The district court, after consideration of that amended petition, entered an order stating that Bert‘s “motion for new trial [was] argued and overruled.” Bert timely appealed the overruling of its motion for a new trial.
Bert‘s three assignments of error merge to allege that (1) the district court erred in sustaining Warren‘s demurrer to Bert‘s second amended petition and (2) the district court erred by overruling Bert‘s motion for a new trial, that is, the court‘s refusal to reinstate the action and allow Bert to file a third amended petition. As it is well established that one must stand on a pleading against which a demurrer has been sustained in order to preserve the right to appeal the decision on the particular demurrer, Raskey v. Michelin Tire Corp., 223 Neb. 520, 391 N.W.2d 123 (1986), we address solely the second assignment of error.
Much has been made in this case concerning Warren‘s failure to disclose the reasons for its motion to dismiss and the district court‘s failure to state its reason for sustaining Warren‘s motion to dismiss. The party appealing has the responsibility for making an appropriate record in a proceeding to be reviewed by an appellate court and for providing the appellate court with a
If Bert had assumed the responsibility of preserving a record for appeal, the matter could have been approached in either one of two ways. First, Bert could have requested that the trial court require Warren to place on the record the reason for the motion to dismiss. Second, Bert could have made an appropriate motion for the trial court to give its reasons for its dismissal ruling. See Peitz, supra.
It is elementary that a correct ruling of the trial court will not be reversed merely because the trial court announced a wrong reason. Id. See, also, In re Interest of G.G. et al., 237 Neb. 306, 465 N.W.2d 752 (1991). It follows, therefore, that this court will not presume, when a trial court fails to state a reason for the dismissal of an action, that the dismissal was based on an invalid ground.
Guided by the above-cited principles, a proper reason for the court‘s dismissal of Bert‘s action becomes immediately apparent. It is provided in
Applicable to this case is the following language from Rosnick, supra at 761, 316 N.W.2d at 767 (quoting Scudder v. Haug, 197 Neb. 638, 250 N.W.2d 611 (1977)):
“[I]t has almost universally been held or recognized that courts have the inherent power to dismiss an action for
disobedience of a court order. . . . Without this right, a court could not control its dockets; business before it would become congested; its functions would be impaired; and speedy justice to litigants would largely be denied.”
In this case, the trial court had ample reason to dismiss Bert‘s petition for failure to comply with the court‘s order. The court granted Bert 2 weeks to amend its second amended petition. Instead, Bert waited well over 4 months to file its motion to file what would have been its fourth petition. The trial court did not abuse its discretion in dismissing Bert‘s action for disobedience of its order. See Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d 220 (1974) (it is within the discretion of the trial court to dismiss a petition for disobedience).
Warren‘s counsel at oral argument before this court disavowed that the dismissal was a sanction for disobedience. However, this court is not bound by a counsel‘s characterization on a question of law. From the record made in this case, counsel is in no better position than this court to know the reason for the trial court‘s dismissal of Bert‘s action.
No verbatim record has been presented to this court of the hearing of September 28, 1988, on Bert‘s motion for leave to file a third amended petition. Nor was there any documentation filed at that time as to any reason why Bert‘s motion for leave to file an amended petition was not filed sooner. It is true that an excuse for the failure to file a third amended petition was presented at the hearing on Bert‘s motion for a new trial. However, although that information must have been available on September 13, 1988, Bert sat on the excuse and did not present it to the judge at the hearing on September 28, 1988. Certainly, the reason for Bert‘s failure to comply with the trial court‘s order of April 28, 1988, cannot be considered as newly discovered evidence as grounds for a new trial under
The judgment of the district court for Douglas County is affirmed.
AFFIRMED.
CAPORALE, J., not participating.
Involved in this appeal is a courtroom conundrum: a dismissal order, which expresses no reason for the dismissal, entered in response to a pretrial motion which failed to specify a ground for dismissal.
We start with the established procedural principle: “A pretrial motion to dismiss is not permissible as a pretrial pleading but may sometimes be recognized as a demurrer on stipulation of the parties or by rule of court.” Voyles v. DeBrown Leasing, Inc., 222 Neb. 250, 256, 383 N.W.2d 36, 40 (1986). See, also, Nelson v. Sioux City Boat Club, 216 Neb. 484, 344 N.W.2d 634 (1984); Blitzkie v. State, 216 Neb. 105, 342 N.W.2d 5 (1983). In Bert‘s case, nothing indicates that Warren‘s dismissal motion attained the stature or character of a demurrer, perhaps because the court sustained Warren‘s demurrer to Bert‘s last amended petition, leaving no petition pending before the court at the time of Warren‘s motion. Whatever may have been the premise for Warren‘s pretrial dismissal motion, a basis which appears nowhere in the record, a pretrial dismissal motion is, generally, unavailable under Nebraska‘s code of civil procedure.
Without addressing the limited availability of a pretrial dismissal motion, the majority attempts to salvage the dismissal by asserting that the district court‘s judgment was correct, although “the trial court announced a wrong reason.” Since the district court expressed no reason whatsoever for the dismissal, Bert‘s appeal tests the tensile strength of the preceding principle invoked by the majority for appellate review. For that reason, the majority delves into Nebraska‘s civil procedure in search of possible justification for dismissal of Bert‘s action.
The majority observes that Bert did not appeal from the district court‘s sustaining of Warren‘s demurrer on April 28, 1988. Of course, there was not a dismissal at that point; hence, a sustained demurrer, without dismissal of the action, presented no final order subject to appellate review. See, Snell v. Snell, 230 Neb. 764, 433 N.W.2d 200 (1988); Federal Land Bank of Omaha v. Johnson, 226 Neb. 877, 415 N.W.2d 478 (1987);
Then, the majority chides Bert‘s failure to “require Warren to place on the record the reason for the motion to dismiss.” A motion to make an opponent‘s motion more definite and certain? That new development, now recognized as a part of Nebraska civil procedure, may turn out to be the greatest innovation since sliced bread. A more likely result, however, will be pettifogging, vaulted to the forefront of a legal system which is supposed to resolve disputes and not, reminiscent of the Jarndyce case in “Bleak House,” prolong a dispute into perpetuity.
Next, although the district court‘s dismissal order contains nothing but silence as the basis for dismissal of Bert‘s action, the majority asserts that it is “immediately apparent” that dismissal was a sanction for Bert‘s “failure to comply with the court‘s order” entered on April 28, 1988, that is, dismissal on the basis of
Bert‘s case involves an appellate exercise in the attempt to ascertain, as the majority concedes, “the reason for the trial court‘s dismissal of Bert‘s action.” Although the majority has embarked on a journey through Nebraska‘s civil procedure to find a sustainable basis for dismissal of Bert‘s action, an appellate court should not have to make that trip. In searching
A rationale for the preceding rule is readily apparent: An authorized pleading or other recognized and acceptable practice, especially those designed for pretrial disposition of an action without a determination on the merits of a claim, must provide suitable information to the plaintiff so that a procedural deficiency in the proceeding may be corrected or remedied if permissible and possible. Cf., Meyerson v. Coopers & Lybrand, 233 Neb. 758, 762, 448 N.W.2d 129, 133 (1989) (a trial court‘s undisclosed reason for sustaining a multiground demurrer “makes it somewhat difficult to identify and analyze the question presented” to an appellate court); Clyde v. Buchfinck, 198 Neb. 586, 254 N.W.2d 393 (1977) (demurrer, containing several grounds, sustained without specification of
The district court‘s dismissal of Bert‘s action is untenable and deprived Bert of the substantial right to a disposition of asserted claims according to law. In short, the district court abused its discretion in dismissing Bert‘s action. Therefore, the district court‘s judgment should have been set aside and this cause remanded to the district court with direction to reinstate Bert‘s action and allow Bert to file the third amended petition.