PIONEER CHEMICAL v. City of North Platte, A-02-854.

• Decision Date: 17 August 2004
• Docket Number: No. A-02-854.,A-02-854.
• Citation: 12 Neb.App. 720,685 N.W.2d 505
• Parties: PIONEER CHEMICAL COMPANY, a Nebraska corporation, appellant, v. CITY OF NORTH PLATTE, a municipal corporation of the State of Nebraska, and Union Pacific Railroad Company, appellees.
• Court: Nebraska Court of Appeals

685 N.W.2d 505

12 Neb.App. 720

PIONEER CHEMICAL COMPANY, a Nebraska corporation, appellant, v. CITY OF NORTH PLATTE, a municipal corporation of the State of Nebraska, and Union Pacific Railroad Company, appellees.

No. A-02-854.

Court of Appeals of Nebraska.

August 17, 2004.

George G. Vinton, North Platte, for appellant.

Douglas L. Stack for appellee City of North Platte.

Stephen W. Kay, of Kay & Kay, North Platte, for appellee Union Pacific Railroad Company. IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

IRWIN, Chief Judge.

I. INTRODUCTION

Pioneer Chemical Company (Pioneer) appeals from the district court's order overruling Pioneer's motion for summary judgment against Union Pacific Railroad Company (UPRR) and granting UPRR's motion for summary judgment against Pioneer. Pioneer brought this action in the district court to appeal an award by court-appointed appraisers in an action condemning property interests associated with the construction of a viaduct in North Platte. Because this action involved multiple parties and the court's order adjudicated fewer than all of the claims or the rights and liabilities of fewer than all of the parties, and because the court did not make an express determination that there was no just reason for delay and direct the entry of a final judgment pursuant to Neb.Rev.Stat. § 25-1315(1) (Cum.Supp.2002), we are without jurisdiction over the instant appeal. Accordingly, the appeal is dismissed.

II. BACKGROUND

This action concerns Pioneer's appeal in the district court from an award of court-appointed appraisers which granted Pioneer damages resulting from the City of North Platte's condemnation of property interests for a viaduct construction project.

On December 4, 2000, Pioneer filed a notice of appeal in the county court indicating its desire to appeal the appraisers' award to the district court. On February 13, 2001, Pioneer filed an amended petition on appeal in the district court, naming the City of North Platte as the defendant. Pioneer alleged that the appraisers appointed by the court had awarded Pioneer $18,750 in damages, that the award was inadequate, and that Pioneer would suffer damages as a result of the condemnation and construction project. Pioneer indicated that its property interest in the property at issue was a leasehold interest arising from a written lease wherein Pioneer was leasing the land from UPRR. Pioneer further alleged that it had a building on the property and that the condemnation and construction project would impede access to the property and building and result in Pioneer's no longer being able to use the property for Pioneer's present purposes. Pioneer attached a copy of the lease with UPRR to the amended petition. The lease contains a provision specifically addressing the respective rights of Pioneer and UPRR concerning compensation awarded for condemnation proceedings.

On March 26, 2001, the court entered an order directing Pioneer to file a second amended petition naming UPRR as a defendant. The court found that the lease provision concerning compensation for condemnation proceedings suggested that UPRR was an indispensable party to the present action. On May 21, Pioneer filed a second amended petition naming both the City of North Platte and UPRR as defendants and alleging substantially the same allegations as the amended petition.

On June 11, 2001, the City of North Platte filed an answer to the second amended petition. On June 18, UPRR filed an answer to the second amended petition. On March 1, 2002, UPRR filed an amended answer and counterclaim.

On May 9, 2002, UPRR filed a motion for summary judgment against Pioneer. On June 10, the City of North Platte filed a motion for judgment on the pleadings. On June 12, Pioneer filed a motion for summary judgment against UPRR.

On June 23, 2002, the court entered an order on various motions, including the motions for summary judgment and for judgment on the pleadings. The court granted UPRR's motion for summary judgment and denied both Pioneer's motion for summary judgment and the City of North Platte's motion for judgment on the pleadings. The court also made specific findings concerning who was entitled to an award of damages at trial and restricting what damages Pioneer could claim at trial.

Pioneer filed this appeal. On October 4, 2002, this court dismissed Pioneer's appeal for lack of jurisdiction, referencing § 25-1315. On October 15, Pioneer filed a motion for rehearing. On November 22, this court sustained Pioneer's motion for rehearing, specifically indicating that the issue of jurisdiction would be reconsidered upon briefing and argument of the parties.

III. ANALYSIS

Although Pioneer has assigned various errors concerning the district court's order of June 23, 2002, we must first address the issue of jurisdiction. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003); Vopalka v. Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000); Washington Cty. Bd. of Equal. v. Rushmore Borglum, 11 Neb.App. 377, 650 N.W.2d 504 (2002). For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Mumin v. Dees, 266 Neb. 201, 663 N.W.2d 125 (2003); Bailey v. Lund-Ross Constructors Co., supra; In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002)

; Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002); Michael B. v. Donna M., 11 Neb.App. 346, 652 N.W.2d 618 (2002).

The jurisdictional issue presented in this case is whether § 25-1315 prohibits an immediate appeal of an order which adjudicates fewer than all of the claims, or the rights and liabilities of fewer than all of the parties, where the order affects a substantial right in a special proceeding. Pioneer argues that § 25-1315 is not applicable to special proceedings, such as condemnation actions, and that appeals in such proceedings, irrespective of whether they involve multiple claims or multiple parties, are governed only by Neb.Rev.Stat. § 25-1902 (Reissue 1995). We disagree.

Section 25-1315(1) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Section 25-1902 provides, in part:

An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, [or] an order affecting a substantial right made in a special proceeding ... is a final order which may be vacated, modified or reversed [on appeal].

Pioneer relies heavily on the Nebraska Supreme Court's decision in SID No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917, 573 N.W.2d 460 (1998) (SID No. 1), in support of its contention that § 25-1315 is not applicable in condemnation proceedings. Specifically, Pioneer's argument is that the Nebraska Supreme Court analyzed § 25-1902 to determine whether jurisdiction existed and concluded that jurisdiction did exist because the order being appealed from affected a substantial right in a special proceeding. Pioneer argues that even though the order being appealed from in SID No. 1 did not resolve all of the issues presented, the Nebraska Supreme Court held it to be a final order because it affected a substantial right in a special proceeding.

We conclude that Pioneer has misconstrued the Nebraska Supreme Court's holding in SID No. 1. First, we note that the pertinent language of § 25-1315, originally codified as Neb.Rev.Stat. § 25-705(6) (Cum.Supp.1998), was not effective until July 15, 1998, approximately 5 months after the Nebraska Supreme Court's decision was released in SID No. 1. See Bargmann v. State, 257 Neb. 766, 600 N.W.2d 797 (1999). That being so, the Nebraska Supreme Court analyzed jurisdiction in SID No. 1 under only § 25-1902 primarily because, at the time, § 25-1902 was the only statute implicated. This factor alone necessitates a conclusion that the Nebraska Supreme Court's holding in SID No. 1 cannot be interpreted in any way to suggest that § 25-1315 does not apply in special proceedings; the very fact that § 25-1315, or its predecessor, § 25-705(6), did not even exist at the time precludes the SID No. 1 opinion from any holding involving those statutes.

Further, we note that in SID No. 1, it appears that there were neither multiple claims nor multiple parties. Rather, the issues in SID No. 1 all appear to have concerned a single claim for relief, a single plaintiff, and a single defendant. Although the plaintiff in SID No. 1 listed several "causes of action" in its petition on appeal to the district court, it appears that these were actually multiple theories of recovery; the Nebraska Supreme Court indicated that the plaintiff "asserted several defenses" to the condemnation proceedings and listed them as "`causes of action.'" SID No. 1, 253 Neb. at 919-20, 573 N.W.2d at 464. Thus, if § 25-1315 had been effective at the time of SID No. 1, it is...