Fox v. Nick
| Decision Date | 16 May 2003 |
| Docket Number | No. S-01-920.,S-01-920. |
| Parties | Dan FOX, appellant, v. Bradley E. NICK, Special Administrator of the Estate of Edward I. Radil, appellee. |
| Court | Nebraska Supreme Court |
Timothy M. Schulz, of Yost, Schafersman, Lamme, Hillis, Mitchell & Schulz, P.C., L.L.O., Fremont, for appellant.
Thomas A. Grennan, Omaha, and Thomas E. Morrow, Jr., Lincoln, of Gross & Welch, P.C., for appellee.
Appellant, Dan Fox, filed a petition against Edward I. Radil in the district court for Dodge County 8 days before the expiration of the applicable statute of limitations. However, Fox was unable to serve Radil with summons before Radil's death approximately 2 months later. After Radil's death, Fox served appellee, Bradley Nick, special administrator of Radil's estate, with notice of the lawsuit against Radil. Nick was served prior to the expiration of the 6-month period for service of process permitted by Neb.Rev. Stat. § 25-217 (Reissue 1995). The district court granted summary judgment against Fox on the ground that Fox failed to commence his action within the applicable statute of limitations. Fox appealed. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).
On October 23, 1995, Fox and Radil were involved in an automobile accident. On October 15, 1999, 8 days before the expiration of the statute of limitations, Fox filed a petition against Radil in the district court for Dodge County alleging that Radil's negligence had caused the accident and that Fox had suffered injuries as a result.
Fox's attempts to serve Radil with notice of the suit were unsuccessful. A summons sent by certified mail to Radil's last known address was returned unclaimed on November 5, 1999. A November 8 alias summons issued for personal service on Radil was also returned unsatisfied. Radil died on December 18. It is undisputed that Radil was not served with notice of the suit before his death.
On March 29, 2000, Fox filed a "Petition for Appointment of Special Administrator in Formal Proceedings" in the county court for Douglas County. By order issued that same day, the county court appointed Nick as special administrator of Radil's estate in order "to accept service of process in the case of Dan Fox v. Edward I. Radil, District Court of Dodge County, Nebraska." Also on March 29, "Letters of Special Administrator" were issued by the county court "as evidence of such appointment" of Nick as special administrator.
Nick was personally served with summons and petition on April 4, 2000, 11 days before the expiration of the 6-month period for service of process permitted by § 25-217. The summons and petition with which Nick was served, however, named Radil as defendant, rather than Nick in his capacity as special administrator.
On May 4, 2000, Nick filed a special appearance, claiming no suit had been filed against him in his capacity as special administrator. Nick further claimed that he had not been named a party to any pending suit in his capacity as special administrator. For these reasons, Nick asserted the court lacked personal jurisdiction.
On January 5, 2001, Fox filed a "Motion to Amend Petition" in the Dodge County District Court. On February 12, Fox filed an amended petition in the district court, for the first time naming Nick as defendant in his capacity as special administrator of Radil's estate. The record discloses, however, that no order reviving the action in the name of Nick as special administrator has ever been entered by the district court.
On February 23, 2001, Nick filed an answer to Fox's amended petition, in which he preserved his special appearance. On June 28, Nick moved for summary judgment. The district court granted summary judgment, determining Fox's claim was time barred because it was not commenced within the applicable statute of limitations. Fox appeals.
Fox assigns, rephrased, that the district court erred in (1) determining no genuine issue of material fact existed, (2) determining Fox's suit was time barred, (3) failing to determine Nick was served "with the lawsuit" in a timely manner, (4) failing to determine that the relation-back doctrine rendered Fox's suit timely, and (5) failing to determine that the liability insurance exception under Neb.Rev.Stat. § 30-2485(c)(2) (Reissue 1995) allowed Fox to proceed with his lawsuit.
Statutory interpretation presents a question of law. Maxwell v. Montey, 265 Neb. 335, 656 N.W.2d 617 (2003); Eyl v. Ciba-Geigy Corp., 264 Neb. 582, 650 N.W.2d 744 (2002). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Maxwell, supra; Alegent Health v. American Family Ins., 265 Neb. 312, 656 N.W.2d 906 (2003).
The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court. Kovar v. Habrock, 261 Neb. 337, 622 N.W.2d 688 (2001).
In granting Nick's motion for summary judgment, the district court determined Fox's action had not been commenced within the applicable statute of limitations. The issue, however, is whether the district court had jurisdiction when it ruled on Nick's motion. That issue is dependent upon the question of whether Fox obtained proper service within 6 months of commencing his action. Fox's action was commenced on October 15, 1999, the date he filed his petition. See § 25-217 (); Becker v. Hobbs, 256 Neb. 432, 590 N.W.2d 360 (1999); Licht v. Association Servs., Inc., 236 Neb. 616, 463 N.W.2d 566 (1990). See, also, Neb.Rev.Stat. § 25-501 (Reissue 1995). If proper service was not obtained on or before April 15, 2000, 6 months after Fox's action was commenced, Fox's action was dismissed by operation of law and any proceeding conducted by the court subsequent to that date, with the exception of any order formalizing the dismissal, was a nullity. See, § 25-217; Kovar, supra; Vopalka v. Abraham, 260 Neb. 737, 619 N.W.2d 594 (2000). Therefore, since it is undisputed that Fox failed to serve Radil before Radil died, we turn to the question of whether Fox obtained proper service within 6 months from the date his action was commenced.
In Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 324, 314 N.W.2d 19, 21-22 (1982), we observed:
(Emphasis supplied.) See, also, Babbitt v. Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001). Specifically, Neb.Rev.Stat. § 25-1402 (Reissue 1995) provides that "[n]o action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, or for a nuisance, which shall abate by the death of the defendant." Fox's action was "pending" in the Dodge County District Court, even though efforts to serve Radil prior to his death were unsuccessful.
We recognize that in Willis v. Rose, 223 Neb. 49, 388 N.W.2d 101 (1986), this court concluded that an action is "pending" for purposes of § 25-1402 if, prior to the defendant's death, both a petition is filed and the defendant is properly served. However, at the time Willis was decided, § 25-217 provided in relevant part that an action "shall be deemed commenced" on the date the petition is filed with the court "if proper service is obtained within six months of such filing." (Emphasis supplied.) § 25-217 (Reissue 1985).
Since our decision in Willis, § 25-217 has been amended. At all times relevant to this case, § 25-217 read: See 1986 Neb. Laws, L.B. 529. The amendment to § 25-217 no longer requires that service be "obtained" before an action "shall be deemed commenced." In addition, the plain language of § 25-217 requires such determination, for as to any defendant not served within 6 months of filing, the action stands dismissed without prejudice. Clearly, if an action is not commenced upon filing, there would be no need to dismiss the action as to "any defendant not served within six months." Since Fox's action had commenced prior to the date of Radil's death, we determine Fox's action was pending in accordance with § 25-1402. See Kovar v. Habrock, 261 Neb. 337, 342, 622 N.W.2d 688, 692 (2001) (). Accordingly, pursuant to § 25-1402, Fox's pending action for damages based on the alleged negligence of Radil did not abate as a result of...
To continue reading
Request your trial
-
Wolfe v. Becton Dickinson and Co.
...appellate court has an obligation to resolve the questions independently of the conclusion reached by the lower court. Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003). Statutory interpretation presents a question of law. Id. ANALYSIS WHISTLEBLOWER CLAIM FEPA makes it unlawful for an employ......
-
Platte Valley Nat. Bank & Trust v. Lasen
...ACTIONS IN NEBRASKA A pending action that survives a party's death must be revived in the manner provided by statute. Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003). Nebraska law provides for two coexisting methods by which an action may be revived. The statutory procedures for revivor ar......
-
Johnson v. Johnson
...866 (1946). See, also, 49 C.J.S. supra note 5, § 30. FN7. Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999). 8. See, Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003); Neb.Rev.Stat. § 25–217 (Reissue 2008). 9. See Neb.Rev.Stat. § 25–1329 (Reissue 2008). 10. See, Neb.Rev.Stat. § 25–1912 (Reis......
-
Reid v. Evans
...of § 25-217 requires [that] as to any defendant not served within 6 months of filing, the action stands dismissed." Fox v. Nick, 265 Neb. 986, 990, 660 N.W.2d 881, 885 (2003). We affirm the decision of the district court that affirmed the county court's decision that Reid's lawsuit against ......