O'Connor v. Kaufman

• Citation: 255 Neb. 120,582 N.W.2d 350
• Decision Date: 24 July 1998
• Docket Number: No. S-97-860,S-97-860
• Parties: Evelyn A. O'CONNOR, Appellee, v. David A. KAUFMAN and Virginia L. Kaufman, Appellants.
• Court: Nebraska Supreme Court

Page 350

582 N.W.2d 350

255 Neb. 120

Evelyn A. O'CONNOR, Appellee, v. David A. KAUFMAN and Virginia L. Kaufman, Appellants.

No. S-97-860.

Supreme Court of Nebraska.

July 24, 1998.

Syllabus by the Court

1. Final Orders: Appeal and Error. There are three types of final orders which may be reviewed on appeal. The three types are (1) an order which affects a substantial right in an action and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.

2. Final Orders: Words and Phrases: Appeal and Error. To be a final order that determines the action and prevents a judgment, the order must dispose of the whole merits of the case and must leave nothing for further consideration of the court, and thus, the order is final when no further action of the court is required to dispose of the pending cause; however, if the cause is retained for further action, the order is interlocutory.

3. Final Orders: Appeal and Error. An order affecting a substantial right made during a special proceeding is a final, appealable order.

4. Final Orders: Actions. A special proceeding within the meaning of Neb.Rev.Stat. § 25-1902 (Reissue 1995), defining a final order, must be one that is not an action and is not and cannot be legally a step in an action as part of it.

John P. Weis, of Sorensen & Zimmerman, P.C., Scottsbluff, for appellants.

James Duffy O'Connor, of Maslon, Edelman, Borman & Brand, L.L.P., and Steven C. Smith, of Van Steenberg, Chaloupka, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WHITE, Chief Justice.

The question in this case is whether an order sustaining a motion for partial summary judgment, which grants a permanent injunction but reserves the issue of monetary damages for later disposition, is a final, appealable order pursuant to Neb.Rev.Stat. § 25-1902 (Reissue 1995).

Evelyn A. O'Connor initially filed suit in Scotts Bluff County District Court, alleging ownership of an implied easement for the use of a water well located on David A. Kaufman and Virginia L. Kaufman's property. The Kaufmans responded by filing a motion for summary judgment, which the district court sustained. O'Connor appealed to the Nebraska Court of Appeals, and the appeal was transferred to the Nebraska Supreme Court. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995). On appeal, we reversed the district court's judgment and remanded the cause for trial. See O'Connor v. Kaufman, 250 Neb. 419, 550 N.W.2d 902 (1996).

On remand, O'Connor filed a second amended petition and again claimed an interest in the Kaufmans' real property, this time via an implied easement from a former use. O'Connor prayed for an order adjudging her owner of an implied easement on the Kaufmans' land for use of the well, enjoining the Kaufmans to reinstate the well, permanently enjoining the Kaufmans from interfering with O'Connor's use of the well, and awarding O'Connor $12,811.73 in damages. O'Connor also filed a motion for partial summary judgment relative to the existence of the implied easement, specifically requesting an order that would decide each issue except for monetary damages. The Kaufmans responded by denying the existence of an implied easement and alleged that if any type of an implied easement existed, such an easement had been abandoned by O'Connor's actions. The district court sustained O'Connor's motion for partial summary judgment and further ordered that "the remaining issues for trial, those of damages, will be heard by the court as they have been previously scheduled."

When the district court granted O'Connor's motion and scheduled the damages issue for trial, the Kaufmans filed a motion for new trial, which the court denied. The Kaufmans then filed an appeal with the Court of Appeals, and the court denied jurisdiction for lack of a final, appealable order. See O'Connor v. Kaufman, 6 Neb.App. 382, 574 N.W.2d 513 (1998). The Kaufmans subsequently filed a petition for further review, and on September 26, 1997, this court requested the parties to brief the issue of whether this court has jurisdiction over the appeal.

Neb.Rev.Stat. § 25-1911 (Reissue 1995) provides for appellate review of final orders. A final order is defined as "[a]n order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment ...." § 25-1902. Essentially, then, there are three types of final orders which may be reviewed on appeal. The three types are (1) an order which affects a substantial right in an action and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered. State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997); Rohde v. Farmers Alliance Mut. Ins. Co. ., 244 Neb. 863, 509 N.W.2d 618 (1994). This case potentially involves either the first or the second category of final, appealable orders.

To constitute a final, appealable order under the first category, the case must involve an order which affects a substantial right in an action and which determines the action and prevents a judgment. In Rohde, supra, we stated:

To be a "final order" under the first type of reviewable order, an order must dispose of the whole merits of the case and must leave nothing for further consideration of the court, and thus, the order is final when no further action of the court is required to dispose of the pending cause; however, if the cause is retained for further action, the order is interlocutory.

244 Neb. at 868-69, 509 N.W.2d at 623. See, also, Olsen v. Olsen, 248 Neb. 393, 397, 534 N.W.2d 762, 765 (1995) (holding that "[t]o be final, an order must dispose of the whole merits of the case. When no further action of the court is required to dispose of a pending cause, the order is final. If the cause is retained for further action, the order is interlocutory").

In the case at bar, the order granting the motion for partial summary judgment resolved the permanent injunction issue but left unresolved the monetary damages issue; thus, the order did not dispose of the whole case. As a consequence, the order did not determine the action and prevent a judgment and, in turn, is not a final, appealable order under the first category. See, Burke v. Blue Cross Blue Shield, 251 Neb. 607, 558 N.W.2d 577 (1997); Larsen v. Ralston Bank, 236 Neb. 880, 464 N.W.2d 329 (1991); Voyles v. DeBrown Leasing, Inc., 222 Neb. 250, 383 N.W.2d 36 (1986); Blankenship v. Omaha P.P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976).

To constitute a final, appealable order under the second category, the order must affect a substantial right made during a special proceeding. Jacques, supra; Rohde, supra. That a substantial right is involved in this case goes without saying. However, the more pertinent question is whether an order granting a motion for partial summary judgment involves a "special proceeding." Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993). In In re Interest of R.G., 238 Neb. 405, 412, 470 N.W.2d 780, 787 (1991), we stated that

"[a] special proceeding within the meaning of the statute defining a final order must be one that is not an action and is not and cannot be legally a step in an action as part of it. None of the many steps or proceedings necessary or permitted to be taken in an action to commence it, to join issues in it, and conduct it to a final hearing and judgment can be a special proceeding within the terms of the statute. A special proceeding may be connected with an action in the sense that the application for the benefit of it and the other papers and orders concerning it may be filed in the case where the record of the filings in the action are [sic] made--as for instance garnishment or attachment--but it is not an integral part of or a step in the action or as it is sometimes referred to in such a situation a part of the 'main case.'..."

(Quoting Rehn v. Bingaman, 157 Neb. 467, 59 N.W.2d 614 (1953) (Boslaugh, J., concurring).) We have also stated that an "action" involves prosecuting the alleged rights between the parties and ends in a final judgment, whereas a special proceeding does not. State v. Jacques, supra; In re Interest of R.G., supra.

We find that a motion for partial summary judgment is not an "action," as the grant or denial of such a motion does not end in a final judgment. One or several issues still remain for adjudication. Nonetheless, while a motion for partial summary judgment is not in and of itself an "action," such an order is merely a step or proceeding within the overall action. The grant of a motion for partial summary judgment merely resolves one or several of the issues involved in the entire action or the "main case." In re Interest of R.G., supra. A motion for partial summary judgment is not a special remedy or a special application to the court, as is a special proceeding, but, rather, a motion for partial summary judgment is merely one particular tool that may be used to resolve certain issues in the case. Therefore, we find that the district court's order was not a final, appealable order under the second category because the motion for partial summary judgment did not involve a special proceeding.

The Kaufmans asserted during oral argument that our holding in Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d 469 (1996), supports the proposition that the grant of a motion for partial summary judgment is a special proceeding. Comparing the facts herein with...