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Lindsay International Sales & Service, LLC v. Wegener

Supreme Court of Nebraska

September 15, 2017

Lindsay International Sales & Service LLC, appellee,
v.
Michael J. Wegener, AN INDIVIDUAL, AND JEROME PRIBIL, AN INDIVIDUAL, APPELLANTS.

         1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

         2. Statutes. Statutory interpretation is a question of law.

         3. Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court's conclusion.

         4. Jurisdiction: Time: Notice: Appeal and Error. In order to vest an appellate court with jurisdiction, a party must file a notice of appeal within 30 days of the judgment, decree, or final order from which the party is appealing.

         5. Motions for New Trial: Time: Notice: Appeal and Error. A timely motion for new trial terminates the running of the time for filing a notice of appeal, giving the party 30 days from the entry of the order denying the motion to file a notice of appeal.

         6. Statutes: New Trial. The plain language of the savings clause in Neb. Rev. Stat. § 25-1144.01 (Reissue 2016) does not contain a finality requirement.

         Petition for further review from the Court of Appeals. Moore, Chief Judge, and Inbody and Pirtle, Judges, on appeal thereto from the District Court for Platte County, Robert R. Steinke, Judge. Judgment of Court of Appeals reversed, and cause remanded for further proceedings.

         [297 Neb. 789] Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., and Barry D. Geweke, of Stowell & Geweke, PC, L.L.O., for appellants.

          John M. Lingelbach, of Koley Jessen, P.C., L.L.O., for appellee.

          Heavican, C.J., Wright, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         The Nebraska Court of Appeals dismissed this appeal, finding it was not timely filed. On further review, we apply the savings clause of Neb. Rev. Stat. § 25-1144.01 (Reissue 2016) and conclude the notice of appeal was timely filed. We therefore reinstate the appeal and remand the matter to the Court of Appeals for further proceedings.

         FACTS

         Proceedings in District Court

         Lindsay International Sales & Service, LLC (Lindsay), sued Jerome Pribil and Michael J. Wegener to collect amounts due on a guaranty. The case was tried to a jury, and on July 21, 2016, the jury returned a verdict in favor of Lindsay for $1, 019, 795.38. The court accepted the jury's verdict on the record and discharged the jurors. The verdict forms were filed with the clerk the same day, but judgment on the verdict was not entered until 5 days later.

         Four days after the jury returned its verdict, Lindsay filed a motion for costs. On the same day, Pribil and Wegener filed a motion for new trial. Both motions were efiled on July 25, 2016; the time stamp on the motion for costs shows it was accepted for filing approximately 2 hours before the motion for new trial.

         The next day, on July 26, 2016, the court entered judgment on the jury's verdict. The judgment specifically noted, "The [297 Neb. 790] assessment of court costs, which is the subject of a separate motion filed by [Lindsay] and scheduled for hearing to be conducted on August 5, 2016, will be addressed by separate order of the Court." The judgment did not mention the motion for new trial, but in a separate order, the court set a hearing date of September 12 for the motion for new trial.

         On August 8, 2016, the court entered an order awarding Lindsay costs of $3, 457.20. On October 14, the court entered an order overruling the motion for new trial. On November 9, Pribil and Wegener filed a notice of appeal. For easy reference, the following timeline summarizes the critical dates:

• July 21: Jury returns verdict; court accepts verdict.
• July 25: Lindsay files a motion for costs.
• July 25: Pribil and Wegener file a motion for new trial.
• July 26: Court enters judgment on the jury verdict.
•August 8: Court grants Lindsay's motion for costs.
• September 12: Hearing held on motion for ...

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