Barnett v. Happy Cab Co.

• Decision Date: 28 April 2022
• Docket Number: S-21-407.
• Parties: Jeremy BARNETT, appellant, v. HAPPY CAB CO., a Nebraska corporation, et al., appellees.
• Court: Nebraska Supreme Court

311 Neb. 464

973 N.W.2d 183

Jeremy BARNETT, appellant,

v.HAPPY CAB CO., a Nebraska corporation, et al., appellees.

No. S-21-407.

Supreme Court of Nebraska.

Filed April 28, 2022

John C. Fowles, of Fowles Law Office, P.C., L.L.O., Lincoln, for appellant.

Michael T. Gibbons, Omaha, and Raymond E. Walden, of Woodke & Gibbons, P.C., L.L.O., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J. Jeremy Barnett was injured over 10 years ago while getting into a taxicab. Barnett filed a personal injury lawsuit against the driver of the taxicab and corporations alleged to have employed the driver. Days before a jury trial was to commence, counsel for the driver and corporations filed an offer to confess judgment and Barnett filed an acceptance. While one might assume that an accepted offer to confess judgment would quickly bring about the end of litigation, this one definitely did not. In fact, it has generated a great deal more litigation, including a prior appeal in which the Nebraska 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 of Appeals’ decision to require Barnett to repay funds he received from one of the corporations and its liability insurer while the prior appeal was pending. When Barnett did not repay those amounts as the district court ordered, the district court dismissed his lawsuit as a sanction for his noncompliance. We find that the district court lacked authority to require Barnett to repay the funds, and we therefore vacate the district court's order requiring repayment and its order dismissing Barnett's case for failing to do so and remand the cause for further proceedings.

BACKGROUND

Personal Injury Lawsuit.

This lawsuit began when Barnett filed a complaint against Happy Cab Co. (Happy Cab), Checker Cab Co. (Checker Cab), and Richard C. Kincaid (collectively appellees). Barnett alleged that on a night in January 2011, as he was getting into a taxicab driven by Kincaid, the taxicab moved and struck Barnett's head. Barnett claimed that he was injured as a result of Kincaid's negligence. Barnett also alleged that Kincaid was an employee of Happy Cab "and/or" Checker Cab and that Kincaid's negligence was imputed to those corporations under the doctrine of respondeat superior.

Happy Cab and Checker Cab filed a joint answer denying Kincaid was their employee. Kincaid filed a separate answer denying he was an employee of either taxicab company. Both answers were filed by the same attorney.

Offer to Confess Judgment and Subsequent Proceedings.

A few days before a jury trial was scheduled to begin, the attorney representing appellees filed an offer to confess judgment in the amount of $75,000. Language at the beginning of the offer to confess judgment stated that the offer was being made by the "Defendants, Happy Cab Co. and Paratransit Insurance Co." Language at the end of the offer, however, stated that it was "[r]espectfully submitted" by Happy Cab, Checker Cab, and Kincaid. Paratransit Insurance Co. (Paratransit Insurance) is Happy Cab's liability insurer, but it has never been a party to the lawsuit.

Barnett filed a timely acceptance of the offer to confess judgment. His acceptance stated that he was accepting the offer as to " ‘defendants’ Happy Cab and Paratransit Insurance Co., only."

On the day trial was to begin, Barnett informed the district court that an offer to confess judgment had been filed and that Barnett had filed an acceptance of the offer. Counsel for Barnett argued that the offer and acceptance applied only to Happy Cab and that judgment should be entered against Happy Cab only. Counsel for appellees argued that the offer and acceptance applied to all appellees and that Checker Cab and Kincaid should be dismissed as defendants.

On April 15, 2019, the district court entered an order finding that the offer to confess judgment did not apply to Checker Cab or Kincaid and thus declined to dismiss Barnett's claims against them. On the same day, the district court entered an "Order" of judgment against Happy Cab in the amount of $75,000.

Appellees responded by filing a motion to alter or amend. After a hearing on that motion, the district court reversed course. On May 9, 2019, it entered an order finding that the offer to confess judgment was intended to apply to all appellees and that therefore, judgment should be entered in favor of Barnett and against all appellees. The court entered an "Amended Order of Judgment" in favor of Barnett and against all appellees in the amount of $75,000. Barnett appealed.

First Appeal.

On appeal, Barnett made the same argument he made in the district court. He contended that Happy Cab was the only appellee to make the offer, that he accepted the offer, and that therefore, the district court should have entered judgment against Happy Cab, but allowed him to continue to pursue his claims against Checker Cab and Kincaid.

The Court of Appeals determined that the district court's order should be reversed, but for reasons other than those advanced by Barnett. The Court of Appeals found that the district court committed plain error by entering judgment against all appellees pursuant to the offer to confess judgment. The Court of Appeals concluded that contract law principles should be applied to analyze the offer to confess judgment. Applying those principles, it determined that because appellees intended the offer to confess judgment to include all appellees but Barnett attempted to accept only as to Happy Cab and Paratransit Insurance, there was no meeting of the minds and thus no agreement between the parties.

Because it concluded that the offer to confess judgment was not effectively accepted, the Court of Appeals vacated the May 9, 2019, "Amended Order of Judgment" against all appellees. For the same reason, it directed the district court, upon remand, to vacate the April 15 order entering judgment against Happy Cab only. The Court of Appeals concluded its analysis by stating, "Our decision places Barnett and appellees back in the same position they were before the offer to confess judgment was filed." Barnett v. Happy Cab Co. , 28 Neb. App. 438, 446, 945 N.W.2d 200, 206 (2020).

We denied a petition for further review filed by appellees.

On August 14, 2020, the Court of Appeals’ mandate issued to the district court. It stated: "The judgment which you rendered has been reversed and vacated, and cause remanded with directions by the Nebraska Court of Appeals. NOW, THEREFORE, you shall, without delay, proceed to enter judgment in conformity with the judgment and opinion of this court." (Emphasis in original.)

Motion to Enforce Mandate.

After the district court spread the appellate mandate, appellees, through new counsel, filed a motion to enforce the mandate. In the motion, appellees alleged that after the district court entered its May 9, 2019, "Amended Order of Judgment" against all appellees, Happy Cab and Paratransit Insurance sent checks to Barnett's counsel for $25,000 and $50,000, respectively, for the purposes of complying with the district court's judgment. Appellees alleged that those checks were cashed in November 2019. Appellees also alleged that their counsel, after the Court of Appeals issued its mandate, requested that Barnett's counsel repay $25,000 to Happy Cab and $50,000 to Paratransit Insurance, but Barnett's counsel refused. Appellees requested that the district court enter an order directing Barnett's counsel to repay $25,000 to Happy Cab and $50,000 to Paratransit Insurance.

At a hearing on appellees’ motion to enforce the mandate, they offered affidavits signed by executives of Happy Cab and Paratransit Insurance in which they claimed that in May 2019, they caused checks for $25,000 and $50,000, respectively, to be issued to Barnett and delivered to his counsel in order to satisfy the district court's judgment. Appellees also offered the affidavit of their counsel, who averred that after the Court of Appeals’ mandate was issued, he requested that Barnett's counsel return the $25,000 and $50,000 payments, but Barnett's counsel refused.

Barnett opposed appellees’ motion to enforce the mandate. At the hearing on the motion, he offered the affidavit of his counsel with supporting correspondence attached. According to the affidavit of Barnett's counsel, shortly after the district court entered judgment in May 2019, he received an email from an assistant for appellees’ counsel at the time informing him that she would send him a payment for the judgment. Barnett's counsel replied that the assistant need not send the payment because he planned to appeal.

According to the affidavit of Barnett's counsel, he did not receive any checks from appellees or hear anything further about them until November 2019. In November 2019, Barnett's counsel unexpectedly received a letter from the assistant of appellees’ then-counsel, enclosing checks for $25,000 and $50,000. Barnett's counsel subsequently called appellees’ then-counsel, and they agreed that "regardless of the outcome of the appeal as to the other [appellees], [Barnett] would receive the $75,000 and Happy Cab would be dismissed." Barnett's counsel then told appellees’ then-counsel that Barnett would "only receipt the money as coming from Happy Cab" and that he would send appellees’ then-counsel a draft to review. Barnett's counsel subsequently emailed appellees’ then-counsel an unsigned draft receipt stating that Barnett had received checks satisfying the judgment against Happy Cab. Appellees’ then-counsel replied, "Looks good."

Based on the affidavit of his counsel, Barnett argued that he and appellees’ then-counsel reached a new settlement as to Barnett's claim against Happy Cab and that he retained the settlement checks for...