Currie By and Through Currie v. Chief School Bus Service, Inc.
| Decision Date | 04 October 1996 |
| Docket Number | No. S-94-692,S-94-692 |
| Citation | 250 Neb. 872,553 N.W.2d 469 |
| Parties | , 112 Ed. Law Rep. 1043 Elizabeth CURRIE, a minor child, By and Through her father and next friend, Thomas CURRIE, and Thomas Currie, individually, Appellants, v. CHIEF SCHOOL BUS SERVICE, INC., Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jurisdiction: Judgments: Final Orders: Appeal and Error. Although an extrajurisdictional act of a lower court cannot vest an appellate court with jurisdiction to review the merits of an appeal, the appellate court has jurisdiction and, moreover, the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judgment or other final order sought to be reviewed.
2. Jurisdiction: Judgments: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of the jurisdictional issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue.
3. Jurisdiction: Appeal and Error. As a general proposition, an appellate court and the tribunal appealed from do not have jurisdiction over the same case at the same time.
4. Actions: Pleadings. Counterclaims must arise out of the contract or transaction set forth in the petition or be connected with the subject matter of the action.
5. Actions: Pleadings. The connection of a counterclaim with the subject matter of the action must be more than casual or incidental; it is required to be immediate and direct.
6. Jurisdiction: Final Orders: Appeal and Error. 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.
7. Jurisdiction: Final Orders: Appeal and Error. In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction.
8. Final Orders: Appeal and Error. There are three types of final orders which may be reviewed on appeal:
(1) an order which affects a substantial right 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 upon summary application in an action after a judgment is rendered.
9. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.
10. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.
11. Final Orders: Appeal and Error. Whether an order is final and appealable does not depend upon whether that order completely disposes of the action. An order affecting a substantial right made during a special proceeding is a final and appealable order.
12. Summary Judgment: Words and Phrases. The summary judgment process is a special proceeding.
13. Jurisdiction: Appeal and Error. Lower courts are divested of subject matter jurisdiction over a particular case when an appeal of that case is perfected.
14. Judgments: Jurisdiction. A judgment entered by a court which lacks subject matter jurisdiction is void.
15. Summary Judgment: Final Orders: Pleadings: Appeal and Error. An order granting summary judgment is a final, appealable order, notwithstanding the fact that a counterclaim, pled in the answer of the same action, is pending in the trial court at the time the appeal of the order is perfected.
Phillip G. Wright, of Quinn & Wright, Omaha, for appellants.
Michael G. Mullin, of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee.
The question for decision is whether an order granting summary judgment is a final, appealable order when a counterclaim in the same action is pending in the district court at the time the appeal of the order granting summary judgment was perfected.
Elizabeth Currie, a minor, by and through her father, Thomas Currie (Currie), brought this negligence action against Chief School Bus Service, Inc. (Chief), to recover damages for injuries sustained, as the result of being punched in the face by another student, while riding one of Chief's buses. Chief filed a counterclaim for attorney fees and costs, alleging that Currie's suit was frivolous. Both parties filed motions for summary judgment on Currie's petition. The district court for Sarpy County granted Chief's motion for summary judgment, dismissed Currie's petition, and set Chief's counterclaim for trial at a later date.
While Chief's counterclaim was pending trial, Currie appealed the district court's summary judgment order to the Nebraska Court of Appeals. Before a decision on the appeal was rendered, the district court conducted a trial on Chief's counterclaim and awarded Chief damages for attorney fees and costs incurred in defending the action. The Court of Appeals then summarily affirmed the district court's order granting Chief's motion for summary judgment, and this court denied further review. Currie appeals the district court's order awarding Chief damages on the counterclaim.
We determine that the district court's order granting Chief's motion for summary judgment was a final, appealable order, notwithstanding the fact that Chief's counterclaim was pending in the district court at the time Currie perfected the appeal of the order. As a result, we conclude that the district court's order awarding Chief damages on the counterclaim is void, because the district court was divested of jurisdiction to proceed on the counterclaim the instant Currie perfected the appeal of the summary judgment order. Thus, we reverse and vacate the district court's order, and remand for a new trial on the counterclaim.
On March 22, 1991, while riding one of Chief's buses to school, Elizabeth Currie was punched in the face by another student, causing her to strike her head on a window. Prior to bringing this negligence action against Chief, Currie brought a tort action against the student and his father. The jury returned a verdict for Currie, which was affirmed by the Court of Appeals. See Currie v. Dicus, 95 NCA No. 31, case No. A-93-1025, 1995 WL 468126 ().
On October 21, 1992, Currie filed a negligence action against Chief, alleging essentially that its employee, who was operating the bus the day Elizabeth Currie was injured, knew of the student's violent propensities and failed to exercise a reasonable degree of care to prevent the assault from occurring. Chief counterclaimed, pursuant to Neb.Rev.Stat. § 25-824 (Reissue 1995), alleging that Currie's suit was frivolous. Both parties filed motions for summary judgment on Currie's petition. In its order dated July 29, 1993, the district court held: "I find Plaintiff's Motion for Summary Judgment should be denied, that Defendant's Motion for Summary Judgment should be granted, that the action by the Plaintiff should be dismissed, and the matter should be set for trial at a later date on Defendant's counter-claim."
On August 24, 1993, Currie filed a notice of intention to appeal this decision to the Court of Appeals. On April 4 and 5, 1994, while the appeal was still pending, evidence was adduced on the trial of the counterclaim. In its order dated June 10, 1994, the district court held:
Based upon all of the evidence, facts and circumstances, I find the action brought by the plaintiffs against the defendant was frivolous and brought in bad faith. The cost of defending the action, from time of filing through the granting of the motion for summary judgment, was $12,207.48.... I conclude the defendant should have judgment in this amount on its counter-claim against plaintiffs' counsel ... and that the defendant should have a judgment against the plaintiff Thomas Currie for the sum of $3,051.87, which judgment is joint and several with the judgment to be entered against plaintiffs' counsel.
On February 7, 1995, the Court of Appeals summarily affirmed the district court's order granting summary judgment in favor of Chief. On March 22, this court denied Currie's petition for further review. Currie appeals the district court's order awarding Chief damages on the counterclaim.
Currie alleges that the district court erred in (1) finding that it had jurisdiction to proceed on Chief's counterclaim after Currie perfected the appeal of the order granting summary judgment in the Court of Appeals, (2) finding that Currie's petition was frivolous, (3) failing to allow Currie to produce evidence and testimony subsequent to the summary judgment proceeding, and (4) awarding the amount of damages it did to Chief on Chief's counterclaim.
Although an extrajurisdictional act of a lower court cannot vest the appellate court with jurisdiction to review the merits of the appeal, the appellate court has jurisdiction and, moreover, the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judgment or other final order sought to be reviewed. In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
When a jurisdictional question does not involve a factual dispute, determination of the jurisdictional issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996); Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28, 541 N.W.2d 36 (1995).
Currie asserts that the...
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