Emry v. American Honda Motor Co., Inc., 82-050

• Decision Date: 27 May 1983
• Docket Number: No. 82-050,82-050
• Citation: 334 N.W.2d 786,214 Neb. 435
• Parties: Richard L. EMRY, Appellee, v. AMERICAN HONDA MOTOR CO., INC., a corporation, and Ramer Motors, a corporation Appellants.
• Court: Nebraska Supreme Court

Page 786

334 N.W.2d 786

214 Neb. 435

Richard L. EMRY, Appellee, v. AMERICAN HONDA MOTOR CO., INC., a corporation, and Ramer Motors, a corporation Appellants.

No. 82-050.

Supreme Court of Nebraska.

May 27, 1983.

Syllabus by the Court

1. Courts: Judgments. Courts of general jurisdiction possess inherent power to vacate and modify their own judgments at any time during the term at which they were pronounced. This power exists entirely independent of any statute. It is derived from the common law. At common law, judgments were subject to vacation or modification only during the term in which rendered.

2. Judgments. After the final adjournment of the term of court at which a judgment has been rendered, the court has no authority or power to vacate or modify the judgment except for the reasons stated and within the time limited in Neb.Rev.Stat. § 25-2001 (Reissue 1979).

3. Judgments. In an action to vacate judgment after the adjournment of the term, the applicant must allege and prove that he exercised due diligence and that his failure to secure a proper decision was not due to his fault or negligence.

4. Judgments. Unavoidable casualty alone does not provide a basis for vacating a judgment after term. That casualty must also be one preventing the party from prosecuting or defending.

5. Judgments. Lack of diligence or negligence of counsel is not an unavoidable casualty or misfortune.

6. Attorneys at Law. Practicing attorneys of other states may be admitted to practice in this state for the purpose of conducting professional business upon the showing that they have associated and appearing with them in the action an attorney who is a resident of Nebraska duly and regularly admitted to practice in the courts of record of this state upon whom service may be had in all matters connected with said action with the same effect as if personally made on such foreign attorneys within this state. Neb.Rev.Stat. § 7-103 (Reissue 1977).

7. Court Rules: Notice. Under Douglas County District Court rule 12C the service of notice of an order to show cause and knowledge on the part of local counsel of such order is sufficient compliance with such court rule.

8. Attorneys at Law. The purpose of resident counsel joining with nonresident counsel is to insure that the nonresident counsel will be associated with a counsel involved in the litigation who is knowledgeable and familiar with the laws and practices of this state. A resident lawyer should not permit his or her name to be affixed to pleadings or briefs unless he or she intends to be involved in the litigation and familiar with the actions taken by nonresident counsel.

9. Judgments: Equity. Neb.Rev.Stat. § 25-2001 (Reissue 1979) is not the exclusive remedy for vacating a judgment after the term has expired, but is concurrent with an independent equity jurisdiction. However, to proceed in equity the litigant must show that he is without a remedy at law. Equity will not afford relief if the complainant has a remedy by statutory proceeding in the original action, and to be entitled to equitable relief a party must not have neglected to avail himself of the statutory remedy.

Wayne J. Mark of Fraser, Stryker, Veach, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellant American Honda.

R.M. Dustin, Omaha, for appellant Ramer Motors.

Thomas A. Gleason of Dolan, Davis & Gleason, Omaha, for appellee.

BOSLAUGH, McCOWN, and HASTINGS, JJ., BRODKEY, J., Retired, and RIST, District Judge.

BRODKEY, Justice, Retired.

Defendants below, American Honda Motor Co., Inc. (hereinafter referred to as Honda), and Ramer Motors (hereinafter referred to as Ramer), appeal to this court from an order entered by the District Court for Douglas County vacating an order of dismissal entered at a prior term of the court and reinstating the case to the trial docket, the petition for vacating such prior order of dismissal having been filed and the hearings thereon held during a subsequent term of that court.

On September 5, 1980, the plaintiff below, Richard L. Emry, appellee in this appeal, filed a petition under the provisions of Neb.Rev.Stat. § 25-2001 (Reissue 1979) to vacate an order of dismissal entered on May 2, 1980, at a prior term of court, because of want of prosecution. Plaintiff's original case, filed June 26, 1975, sought damages for personal injuries to the plaintiff, alleging negligence, breach of implied warranty, and strict tort liability as theories of recovery against Honda and Ramer.

The issues actually tried in the court below were: (1) Whether the circumstances of the death of plaintiff's Minnesota counsel constituted an unavoidable casualty under § 25-2001(7); (2) Whether the local District Court rule 12C of Douglas County requires that the order to show cause be mailed to counsel residing outside of the State of Nebraska, where local counsel has been retained, and whether such failure to do so constitutes omission, neglect, or mistake of the clerk of the court under § 25-2001(3); (3) Whether the evidence was sufficient for a finding by the court under its equity powers that just cause existed to warrant vacation of the order of dismissal and reinstatement of the case on the regular trial docket; and (4) Whether the attorneys for the plaintiff should be required to produce for inspection and review by the defendants and their attorneys all the files and file material relating to the cause, or whether the attorneys' files were protected by the attorney-client privilege.

In its order entered on November 4, 1981, the court granted the petition of the plaintiff to vacate the dismissal order of May 2, 1980, and stated: "It is therefore ordered that the Court's Order of May 2, 1980, dismissing the above-captioned cause for want of prosecution, be and hereby is vacated and set aside and the above-captioned case be and hereby is ordered restored to the list of active cases of this Court."

The court also specifically ruled in that order that the files of plaintiff's counsel were not available for production for the reason that they were confidential files of the lawyer and his client and the court's requiring their production to opposing counsel could jeopardize the rights of the plaintiff and grant the defendants an improper advantage.

In announcing his reasons for his decision, prior to the actual entering of the order in question, the trial judge stated: "Section 25-2001, subparagraph (3) ... says that a District Court shall have power to vacate or modify its own judgments or orders after the term in which said judgment or orders were made for three causes. For mistake, neglect, or omission of the clerk, and the Court finds that under that section, why, the order dismissing the above-captioned cause entered on May the 2nd of 1980 be and hereby is vacated and set aside and the above case is restored to the trial list."

The trial judge did not specifically mention in his comments his power to vacate under general equitable principles, but undoubtedly considered them, as he stated: "I know that our court rules say that the Daily Record shall be the official notification, but the way the whole thing is handled and run through, why, where there was other counsel of record, and they were not notified by postcard as they were supposed to be, why, I think in the--for the proper administration of justice and fairness of justice, the plaintiff should have his day in court." Defendants thereafter perfected their appeal to this court.

A review of some of the pertinent facts of this case will be helpful. It should be noted that Emry's original counsel, who filed the products liability case against the defendants, withdrew very early in the case, did so with Emry's consent, and did so of record. Emry thereafter obtained new counsel to represent him in the case, the law firm of Taylor & Malone in Minnesota, and Leonard Shefren, who was appointed by them to be their local counsel in Omaha. It appears that Shefren filed a written appearance in the action on behalf of himself and his cocounsel, Taylor & Malone.

Defendants shortly thereafter commenced discovery procedures in the case, and, except for the appearance of Shefren at an examination of the motorcycle, the attorneys for Emry did not respond to defendants' request for discovery. Because of this lack of participation, at least of record, an order to show cause why the case should not be dismissed for want of prosecution was entered on October 7, 1977. Shefren made a timely response to this order, representing to the court that the plaintiff was awaiting expert opinion and the disposition of a companion case in federal court.

Therefore, and without resistance by the defendants, the case was stricken from the dismissal docket. Notwithstanding the fact that the record reveals that such expert opinion became available and the companion case was settled early in the year 1978, there was no further action on this case. Thereafter, a second order to show cause was issued by the court in February of 1980.

It appears that during this period of inaction several things occurred. First, Emry's principal attorney, William Taylor of Minnesota, became very ill and died in July of 1978. Taylor's partner, Malone, then began to distribute some of Taylor's cases to other attorneys for the reason that he could not handle them all. He contacted Omaha attorney Daniel Dolan and requested that he handle Emry's case because of the fact that Dolan was experienced with the litigation, having handled and settled the companion case in federal court.

Malone forwarded Emry's file to Dolan on August 31, 1979. However, Dolan testified that he did not accept representation of Emry until July of 1980 because he wanted further information with reference to Emry's injuries before accepting the case. When he finally decided to accept the representation of the plaintiff, he found that the case had been dismissed on May 2, 1980, pursuant to the...