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Deines v. Essex Corp.

Supreme Court of Nebraska

May 20, 2016

DOUGLAS G. DEINES, APPELLEE,
v.
ESSEX CORPORATION, APPELLANT

          Appeal from the District Court for Douglas County: LEIGH ANNNN RETELSDORF, Judge.

         Michaelle L. Baumert, of Kutak Rock, L.L.P., and, on brief, Henry L. Wiedrich, of Husch Blackwell, L.L.P., for appellant.

         Timothy S. Dowd, of Dowd, Howard & Corrigan, L.L.C., for appellee.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.

          OPINION

Page 31

          [293 Neb. 578] Stacy, J.

         The plaintiff below, Douglas G. Deines, filed a civil action that was dismissed by the district court for failure to

Page 32

prosecute. Deines then filed a motion to vacate the dismissal and reinstate the case, which the court granted. The defendant below, Essex Corporation (Essex), has appealed, claiming the trial court erred in vacating the order of dismissal and reinstating the case. We conclude Essex has appealed from an order which is neither a judgment nor a final order, and we dismiss the appeal.

         BACKGROUND

         In May 2013, Deines filed a complaint seeking to recover earned commissions from his former employer under the Nebraska Wage Payment and Collection Act.[1] Essex filed an answer which, among other things, alleged Deines had been paid all commissions he was owed. After the case had been pending for approximately 15 months, the trial court issued a notice of intent to dismiss. The notice required the parties to take certain action within 30 days or the case would be dismissed for want of prosecution. No action was taken within the prescribed time. On November 13, 2014, the court entered an order dismissing the case for want of prosecution. Deines subsequently filed a motion to reinstate the case.

          [293 Neb. 579] At the hearing on the motion to reinstate, the parties offered affidavits reflecting their respective version of events. It was acknowledged that the order of dismissal was entered during the 2014 court term and that the motion to reinstate (more properly characterized as a motion to vacate the order of dismissal)[2] was not filed until January 21, 2015--roughly 3 weeks after commencement of the 2015 court term. After receiving evidence and considering the arguments of counsel, the court granted the motion and reinstated the case. Essex filed this appeal.

         ASSIGNMENT OF ERROR

         Essex assigns, restated, that the district court exceeded its equitable authority when it vacated the order of dismissal after the commencement of a new term.

         JU ...


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