Holste v. Burlington Northern R. Co.

Citation592 N.W.2d 894,256 Neb. 713
Decision Date16 April 1999
Docket NumberS-97-509,Nos. S-97-412,S-97-533,s. S-97-412
PartiesLea M. HOLSTE, Personal Representative of the Estate of Timothy V. Anderson, deceased, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, defendant and third-party plaintiff, Appellee, Cinda Marie Branon, Personal Representative of the Estate of Donald Lee Branon, deceased, plaintiff and third-party defendant, Appellee, and Thomas Peterson-More, interested party, Appellant. In re estate of Donald L. Branon, deceased. Kaplan Law Corporation, a California professional corporation, Appellant, v. Burlington Northern Railroad Company et al., Appellees.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law which requires an appellate court to reach a conclusion independent from the trial court's; however, when a determination rests on factual findings, a trial court's decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect.

3. Trial: Appeal and Error. The standard of review of a trial court's determination of a request for sanctions is whether the trial court abused its discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

5. Receivers. Under Neb.Rev.Stat. § 7-108 (Reissue 1997), money in the hands of a court-appointed receiver is not in the hands of an adverse party.

6. Final Orders: Appeal and Error. The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect 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 a judgment is rendered.

7. Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

8. Final Orders: Appeal and Error. A substantial right is affected if the 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 the appeal is taken.

9. Final Orders: Appeal and Error. An order overruling a special appearance is not a final order from which an appeal can be taken.

10. Final Orders: Appeal and Error. The right not to be bound by a judgment can be vindicated in an appeal from the final judgment and is not a substantial right for the purpose of determining the appealability of an order.

11. Final Orders: Parties: Appeal and Error. An order directing the joinder of an additional party is not a final, appealable order.

12. Appeal and Error. The notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the notice and the dismissal of the appeal by the appellate court.

13. Dismissal and Nonsuit. Voluntary dismissal may properly be conditional where it would deprive or endanger a right accrued to the adverse party in the very cause sought to be dismissed.

14. Parties: Words and Phrases. A necessary or indispensable party to a suit is one who has an interest in the controversy to an extent that such party's absence from the proceedings prevents the court from making a final determination concerning the controversy without affecting such party's interest.

15. Courts: Jurisdiction: Parties: Waiver. The presence of necessary parties is jurisdictional and cannot be waived, and if such persons are not made parties, then the district court has no jurisdiction to determine the controversy.

16. Jurisdiction: Proof. Before a court can exercise personal jurisdiction over a nonresident defendant, the court must determine, first, whether the long-arm statute is satisfied and, if the long-arm statute is satisfied, second, whether minimum contacts exist between the defendant and the forum state for personal jurisdiction over the defendant without offending due process.

17. Due Process: Jurisdiction: States. The benchmark for determining if the exercise of personal jurisdiction satisfies due process is whether a defendant's minimum contacts with the forum state are such that the defendant should reasonably anticipate being haled into court there.

18. Jurisdiction: States. Whether a forum state court has personal jurisdiction over a nonresident defendant depends on whether the defendant's contacts with the forum state are the result of unilateral acts performed by someone other than the defendant, or whether the defendant himself or herself acted in a manner which created substantial connections with the forum state, resulting in the defendant's purposeful availment of the benefits and protections of the law of the forum state.

19. Jurisdiction: States. If a defendant established minimum contacts with a forum state, then a court must consider the burden on the defendant, the interests of the forum state, the plaintiff's interest in obtaining relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies.

20. Decedents' Estates: Actions: Equity: Courts: Jurisdiction. In common-law and equity actions relating to decedents' estates, the county courts have concurrent original jurisdiction with the district courts.

21. Courts: Jurisdiction. Where jurisdiction is concurrent, basic principles of judicial administration require that the court which first acquires jurisdiction should retain it to the exclusion of the other court.

22. Courts: Equity: Jurisdiction. Where a court of equity has properly acquired jurisdiction in a suit for equitable relief, it may make complete adjudication of all matters properly presented and involved in the case and grant relief, legal or equitable, as may be required and thus avoid unnecessary litigation.

23. Actions: Judicial Notice: Records. Where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action.

24. Actions: Judicial Notice: Records. A court may take judicial notice of a document in a separate but related action concerning the same subject matter in the same court.

25. Judicial Notice: Records: Appeal and Error. An appellate court may take judicial notice of the record on appeal in a companion case which has been consolidated for the purpose of appeal.

26. Due Process: Property: Notice. The requirements of due process are satisfied if a person has reasonable notice and an opportunity to be heard appropriate to the nature of the proceeding and the character of the rights which might be affected by it; if a person has access to the courts for protection of his or her rights, it cannot be said that such a person has been deprived of property without due process of law.

W. Patrick Betterman and Mary Lou Perry, of Betterman & Perry, Omaha, for appellant Peterson-More.

Laurice M. Margheim, Chadron, for appellee Branon.

Jeanelle R. Robson and Robert A. Cannon, of Knudsen, Berkheimer, Richardson, Endacott & Routh, Lincoln, for appellee Burlington Northern.




The estate of Donald Lee Branon was opened in the county court for Morrill County. Donald Branon's widow, Cinda Marie Branon (Branon), the personal representative of that estate and an appellee herein, filed a wrongful death action which was eventually brought in the district court for Box Butte County. After the case was settled, several of Branon's former attorneys sought payment from the proceeds, and by the terms of the settlement, a cash sum was paid into the county court pending resolution of the claims by the district court. Kaplan Law Corporation (Kaplan), a California law firm and one of the appellants, filed an attorney's lien in the county court before the county court paid out the funds. Before final disposition of all the funds by the district court, Thomas Peterson-More, an attorney associated with Kaplan, tried to voluntarily dismiss his then-pending quantum meruit claim. After appearing in court on that claim and participating in adducing evidence, Peterson-More claimed that the court lacked personal jurisdiction over him.

This appeal presents several questions: Could the district court properly retain jurisdiction over the actions for fees and then issue orders to the county court regarding disposition of the funds? If the county court paid out funds without itself notifying Kaplan, were Kaplan's due process rights violated, even though Kaplan had notice of the district court hearing at which the dispute over fees was actually to be litigated? Could the district court properly exert personal jurisdiction and disallow Peterson-More's voluntary dismissal, in order to expediently resolve the competing claims? If so, was this an appealable order, such that the filing of notice of appeal terminated the jurisdiction of the trial court to decide the issues?


Appellee Branon is the personal representative of the estate of her deceased husband, Donald Branon. She was the plaintiff in an action in the district court...

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