Barnett v. Happy Cab Co.
| Decision Date | 26 May 2020 |
| Docket Number | No. A-19-510.,A-19-510. |
| Citation | 28 Neb.App. 438,945 N.W.2d 200 |
| Parties | Jeremy BARNETT, appellant, v. HAPPY CAB CO., a Nebraska corporation, et al., appellees. |
| Court | Nebraska Court of Appeals |
John C. Fowles, of Fowles Law Office, P.C., L.L.O., Lincoln, for appellant.
Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell, P.C., L.L.O., Omaha, for appellees.
Jeremy Barnett appeals from an order of the district court for Douglas County which found that a confessed judgment agreement was intended to apply to Happy Cab Co. (Happy Cab), Checker Cab Co. (Checker Cab), and Richard C. Kincaid (collectively appellees), rather than just Happy Cab, as the court had previously determined. The court granted appellees’ motion to alter or amend the court's previous order and entered an "Amended Order of Judgment," entering judgment in favor of Barnett and against appellees in the amount of $75,000. Based on the reasons that follow, we reverse the trial court's May 9, 2019, order and vacate the May 9 "Amended Order of Judgment" and we remand the cause with directions to reverse the April 15 "Order" and vacate the order entering judgment on April 15.
On March 3, 2015, Barnett filed a first amended complaint for personal injuries and damages against appellees and John Doe Cab Company. Barnett alleged that on January 2, 2011, he was getting into a "Checker Cab" driven by Kincaid when the cab began moving and Barnett was injured. He also alleged that Kincaid was an employee of Happy Cab, Checker Cab, and/or John Doe Cab Company and that Kincaid's negligence was imputed to Happy Cab and/or Checker Cab under the doctrine of respondeat superior.
Happy Cab and Checker Cab filed a joint answer admitting they were Nebraska corporations and denying Kincaid was their employee. Kincaid filed a separate answer denying he was an employee of either cab company. Both answers were filed by the same attorney. John Doe Cab Company was dismissed from the case on July 2, 2015.
On March 7, 2019, a few days before the scheduled jury trial, appellees’ counsel filed an offer to confess judgment in the amount of $75,000. Barnett filed his acceptance of the offer to confess judgment as to Happy Cab and its liability insurer, Paratransit Insurance Co. (Paratransit Insurance), only.
Trial on Barnett's first amended complaint was scheduled for March 11, 2019. On that day, the court was advised that an offer to confess judgment had been filed and that Barnett had filed an acceptance of the offer. The issue at the hearing became whether the offer to confess judgment applied only to Happy Cab or to all appellees. Counsel for Barnett argued that the offer to confess judgment and acceptance thereof applied only to Happy Cab; counsel for appellees argued that the offer and acceptance applied to all appellees and that Checker Cab and Kincaid should be dismissed as defendants.
An independent contractor agreement between Happy Cab and Kincaid was offered and received into evidence. The court also took judicial notice of the first amended complaint, the answers of the defendants, the offer to confess judgment, and the acceptance of the offer.
On April 15, 2019, the trial court entered an order overruling Checker Cab's and Kincaid's motions to dismiss, finding that the offer to confess judgment did not apply to Checker Cab or Kincaid. The court entered an "Order" of judgment the same day finding that Happy Cab and Paratransit Insurance made and filed an offer to confess judgment in the amount of $75,000 and that Barnett filed an acceptance of the offer. The order further stated that a judgment should be entered on behalf of Barnett and against Happy Cab only in the amount of $75,000.
On April 23, 2019, appellees filed a motion to alter or amend, alleging that the court erred in finding that the offer to confess judgment did not include Checker Cab or Kincaid. The motion stated that Checker Cab is a trade name of Happy Cab and that they are "one in the same." In regard to Kincaid, the motion alleged that a valid release of either the master or servant from liability for tort operates to release the other where liability is based on the doctrine of respondeat superior.
Following a hearing on appellees’ motion to alter or amend, the court entered an order on May 9, 2019, finding that the offer to confess judgment was intended to apply to all appellees and that therefore, the motion to alter or amend should be sustained and a judgment entered in favor of Barnett and against all appellees in the amount of $75,000. The court also entered an "Amended Order of Judgment" finding that appellees filed an offer to confess judgment in the amount of $75,000 including costs, and Barnett filed an acceptance of said offer, and that therefore, judgment should be entered on behalf of Barnett and against appellees in the amount of $75,000.
Barnett assigns, restated, that the trial court erred in (1) finding that the offer to confess judgment applied to all appellees; (2) its application of the " ‘intent’ " rule and rebuttable presumption set forth in Podraza v. New Century Physicians of Neb. , 280 Neb. 678, 789 N.W.2d 260 (2010) ; and (3) entering a confusing amended order of judgment that is unclear as to its effect on the prior order.
A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Breci v. St. Paul Mercury Ins. Co. , 288 Neb. 626, 849 N.W.2d 523 (2014). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
Barnett's first two assignments of error relate to the court's granting appellees’ motion to alter or amend, thereby finding that the offer to confess judgment and the acceptance applied to all appellees, not just Happy Cab. Barnett contends that Happy Cab was the only appellee to make the offer to confess judgment and the only appellee from whom he accepted the offer.
The introductory language of the offer to confess judgment states: "COME NOW the Defendants, Happy Cab ... and Paratransit Insurance ... (collectively "Defendants") ... and for Defendants’ Offer to Confess Judgment ... hereby state as follows: ... Defendants offer to allow judgment to be entered against them on all claims ...." (We note here that Paratransit Insurance was not a named defendant in this case.) The end of the offer states that it is "Respectfully submitted" by Happy Cab, Checker Cab, and Kincaid. Barnett's acceptance of the offer stated that he was accepting the offer "as to ‘defendants’ Happy Cab and Paratransit Insurance ... only."
The trial court initially concluded that the burden was on Checker Cab and Kincaid to prove the offer to confess judgment and the acceptance were specifically intended to apply to them and that the burden had not been met. The court held therefore, that the motion of Checker Cab and Kincaid to dismiss pursuant to the offer to confess judgment should be overruled and denied.
However, after the court considered appellees’ motion to alter or amend, it concluded in its May 9, 2019, order that the offer to confess judgment was intended to apply to all appellees. This conclusion was based on its determination that the offer to confess judgment was submitted and made on behalf of all appellees by counsel who represented all appellees, as well as the fact that counsel for appellees, upon receiving the limited acceptance, immediately moved to have the offer apply to all of his clients, and subsequently filed the motion to alter or amend.
In deciding the case initially and on the motion to alter or amend, the trial court focused on whether appellees proved that they intended the offer to confess judgment to apply to all of them. We determine, however, that the trial court committed plain error and that this case is better analyzed as a contract case, which requires a meeting of the minds by both parties. Although an appellate court ordinarily considers only those errors assigned and...
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Barnett v. Happy Cab Co.
...Court of Appeals vacated a district court order entering judgment based on the offer to confess judgment. See Barnett v. Happy Cab Co. , 28 Neb. App. 438, 945 N.W.2d 200 (2020).The prior appeal has now led to another. Barnett filed this appeal after the district court understood the Court o......