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Wisniewski v. Heartland Towing, Inc.

Supreme Court of Nebraska

February 28, 2014

VICTORIA A. WISNIEWSKI, APPELLANT,
v.
HEARTLAND TOWING, INC., ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS, APPELLEES, AND LYMAN-RICHEY CORPORATION, DOING BUSINESS AS READY MIXED CONCRETE COMPANY, A DELAWARE CORPORATION, ET AL., THIRD-PARTY DEFENDANTS, APPELLEES

Appeal from the District Court for Douglas County: W. MARK ASHFORD, Judge.

Page 49

Robert S. Sherrets and James D. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellant.

Christopher P. Welsh, of Welsh & Welsh, P.C., L.L.O., Pro se.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and CASSEL, JJ. MILLER-LERMAN, J., participating on briefs.

OPINION

[287 Neb. 549] Heavican, C.J.

INTRODUCTION

Christopher P. Welsh of Welsh & Welsh, P.C., L.L.O., represented appellant Veronica A. Wisniewski in a negligence suit against Heartland Towing, Inc. After judgment was entered against Heartland Towing, Welsh orally motioned to be paid attorney fees and costs from the judgment. The district court granted the motion. Wisniewski appeals. We dismiss.

BACKGROUND

Wisniewski was injured in a multiple vehicle accident on June 9, 2006. Wisniewski braked to avoid hitting another vehicle and was struck from behind by a tow truck operated by Billy Pipkin and

Page 50

owned by Heartland Towing. On June 5, 2007, Wisniewski retained Welsh to represent her in a lawsuit against Pipkin and Heartland Towing. Wisniewski and Welsh entered into a contingency fee contract. After a jury trial, the court entered a judgment of $35,006.23 in favor of Wisniewski on June 6, 2012.

On October 12, 2012, Wisniewski, represented by new counsel, filed a legal malpractice suit against Welsh alleging that Welsh failed to adequately represent Wisniewski's claims arising out of the June 2006 automobile accident.

On January 23, 2013, Welsh made an oral motion for payment of attorney fees and costs in this, the underlying negligence lawsuit. The district court granted the motion and authorized the clerk of the district court to distribute $11,085.29 in attorney fees and $3,311.55 in costs to Welsh from the judgment.

Wisniewski filed a motion to alter or amend the order. The district court denied the motion and set a supersedeas bond. Wisniewski appeals from the order denying her motion to alter or amend. Welsh responds as " Movant-Appellee."

ASSIGNMENTS OF ERROR

Wisniewski assigns the following errors of the district court: (1) finding it had jurisdiction to hear Welsh's motion, (2) granting Welsh's motion without an evidentiary hearing, (3) finding Welsh was entitled to attorney fees, and [287 Neb. 550] (4) denying Wisniewski's motion to alter or amend and stay proceedings.

STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's decision.[1]

ANALYSIS

In her first assignment of error, Wisniewski asserts that the district court erred in finding it had jurisdiction to hear Welsh's motion for attorney fees and costs.

Wisniewski argues that the motion was an effort to enforce a contract and that, as such, Welsh was required to file a separate lawsuit against Wisniewski. We reject this argument.

Neb. Rev. Stat. § 7-108 (Reissue 2012) states:

An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; and upon money in his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party.

We have repeatedly stated an attorney may file a petition in intervention in the original action to enforce an attorney's lien.[2]

Recently, in Meister v. Meister ,[3] we reiterated that intervention is the proper method of enforcing an attorney's lien in the original action and explained that equity excuses the usual requirement of intervening before trial as required by Neb. Rev. Stat. § 25-328 (Reissue 2008). We also noted in Meister that an attorney's failure to intervene before arguing his lien did not

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destroy the attorney's entitlement to the lien.[4]

[287 Neb. 551] In this case, Welsh never filed a petition in intervention. Although Welsh claims to have filed the equivalent in a written motion, no such motion appears in the record before this court. At the time of his oral motion, Welsh was not a party to the suit. Furthermore, Welsh stated at the hearing that he no longer represented Wisniewski. Lacking subject matter jurisdiction, the court erred in deciding Welsh's oral motion for payment. We have stated that a ruling made in the absence of subject matter jurisdiction is a nullity.[5] We therefore vacate the district court's order granting Welsh's oral motion and dismiss the appeal.

Order vacated, and appeal dismissed.

Miller-Lerman, J., participating on briefs.


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