Ferer v. Aaron Ferer & Sons Co.

• Decision Date: 29 July 2008
• Docket Number: No. A-07-773.,A-07-773.
• Citation: 755 N.W.2d 415,16 Neb. App. 866
• Parties: Aaron M. FERER, appellant and cross-appellee, v. AARON FERER & SONS CO., a Nebraska corporation, et al., appellees and cross-appellants.
• Court: Nebraska Court of Appeals

755 N.W.2d 415

16 Neb. App. 866

Aaron M. FERER, appellant and cross-appellee, v. AARON FERER & SONS CO., a Nebraska corporation, et al., appellees and cross-appellants.

No. A-07-773.

Court of Appeals of Nebraska.

July 29, 2008.

David A. Domina, Omaha and Nicole A. Parks, of Domina Law Group, P.C., L.L.O., for appellant.

Steven E. Achelpohl, Omaha, for appellee Aaron Ferer & Sons Co.

Michael A. Nelsen, of Hillman, Forman, Nelsen, Childers & McCormack, for appellees Matthew D. Ferer and Whitney H. Ferer.

Michael F. Kinney and Daniel J. Epstein, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellees Erickson & Sederstrom, P.C., and Charles V. Sederstrom, Jr.

INBODY, Chief Judge, and SIEVERS and CARLSON, Judges.

CARLSON, Judge.

INTRODUCTION

Pursuant to this court's authority under Neb. Ct. R.App. P. § 2-111(B)(1), this case was ordered submitted without oral argument. Aaron M. Ferer (Ferer) appeals from an order of the district court for Douglas County finding that the statute of limitations bars his claims and dismissing his causes of action. For the reasons set forth below, we determine that we lack jurisdiction over Ferer's action because he did not file a timely notice of appeal, and therefore, we dismiss his causes of action.

BACKGROUND

In Ferer's first amended complaint, filed June 11, 2004, the following defendants were named: Aaron Ferer & Sons Co.; Erickson & Sederstrom, P.C.; Charles V. Sederstrom, Jr. Matthew D. Ferer, personally and as the parent and natural guardian of Emma Ferer; Whitney H. Ferer, personally and as the parent and natural guardian of Nicholas R. Ferer and Hannah C. Ferer; and Allyson L. Ferer, personally and as the parent and natural guardian of Claire A. Dubin and Samuel L. Dubin. Ferer's complaint arises out of his late father's gift of company stock to two of Ferer's brothers, Whitney and Matthew, and includes causes of action for declaratory judgment, constructive fraud, breach of fiduciary duty, wrongful registration, and unjust enrichment.

On October 3, 2006, the trial court granted a motion for summary judgment which had been filed by Aaron Ferer & Sons Co., Whitney, and Matthew, stating that the statute of limitations barred Ferer's claims against these parties. The court dismissed Aaron Ferer & Sons Co., Whitney, and Matthew from the law-suit, but did not state whether Matthew and Whitney were being dismissed only in their individual capacities or also in their capacities as parents of their children.

In an order filed on October 30, 2006, the trial court granted a summary judgment motion filed by Sederstrom and Erickson & Sederstrom. The court noted that Ferer's claims against these parties were also barred by the statute of limitations and dismissed these two additional parties from the lawsuit.

On June 28, 2007, the trial court dismissed the action as to Allyson, but only in her capacity as parent and guardian of Claire and Samuel. Ferer appealed to this court on July 13.

In an order to show cause dated August 29, 2007, we noted that Ferer's action was dismissed as to all the parties, except that it appeared that the action remained pending as to Matthew and Whitney in their representative capacities and as to Allyson in her individual capacity. We also stated that if Ferer's action had not been fully dismissed as to all parties, the order was not final and appealable under Neb.Rev. Stat. § 25-1315 (Cum. Supp. 2006). Therefore, we issued the order, "[P]laintiff/appellant [Ferer] is directed to show that all parties have been `fully dismissed' within 15 days of the date of this Order; and failing same, this appeal will be dismissed pursuant to [Neb. Ct. R. of Prac.] 7A(2) [(rev.2001)]" (now codified as Neb. Ct. R.App. P. § 2-107(A)(2)).

In an order filed September 18, 2007, the trial court noted, "The prior Orders of this Court were intended to have dismissed all Defendants in their individual and representative capacities. As such, all Defendants are so dismissed as set forth in this Court's prior orders." Ferer did not file a new notice of appeal subsequently to this order.

ASSIGNMENTS OF ERROR

On appeal, Ferer argues that the trial court erred in finding that the statute of limitations bars his lawsuit and in granting the defendants' motions for summary judgment and dismissing his lawsuit against them.

ANALYSIS

It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. See Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007). An appellate court acquires no jurisdiction unless the appellant has satisfied the requirements for appellate jurisdiction. Id.

In the defendants' cross-appeal, they argue that we lack jurisdiction over this appeal since not all of the parties were dismissed in each of their capacities at the time Ferer filed his first appeal and because after the trial court dismissed all of the parties on September 18, 2007, Ferer failed to file a new notice of appeal. Ferer cites Neb.Rev.Stat. § 25-1912 (Cum. Supp. 2006) in support of his position that his July 13 appeal was timely because it relates forward. The relevant portion of § 25-1912(2) states:

A notice of appeal or docket fee filed or deposited after the announcement of a decision or final order but before the entry of the judgment, decree, or final order shall be treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry.

Therefore, the plain language of § 25-1912(2) provides for the relation forward of a notice of appeal or docket fee only when filed or deposited "after the announcement of a decision or final order," but before "entry of the judgment" pursuant to Neb. Rev.Stat. § 25-1301 (Cum. Supp. 2006). J & H Swine v. Hartington Concrete, 12 Neb.App. 885, 687 N.W.2d 9 (2004). Accord In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (2004). Section 25-1912(2) was not intended to validate anticipatory notices of appeal filed prior to the announcement of a final judgment. In re Guardianship & Conservatorship of Woltemath, supra; J & H Swine, supra.

In In re Guardianship & Conservatorship of Woltemath, the Nebraska Supreme Court held that § 25-1912(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a lower court announces a decision that would be appealable if immediately followed by the entry of judgment. In the instant case, we conclude that the trial court's July 13, 2007, dismissal, from which...