Jones v. Jones

• Decision Date: 26 February 2008
• Docket Number: No. A-05-1076.,A-05-1076.
• Citation: 16 Neb. App. 452,747 N.W.2d 447
• Parties: Courtney S. JONES, individually and as Personal Representative of the Estate of Richard E. Jones, deceased, appellant, v. Ronald L. JONES and Jean Marie Jones, appellees.
• Court: Nebraska Court of Appeals

747 N.W.2d 447

16 Neb. App. 452

Courtney S. JONES, individually and as Personal Representative of the Estate of Richard E. Jones, deceased, appellant, v. Ronald L. JONES and Jean Marie Jones, appellees.

No. A-05-1076.

Court of Appeals of Nebraska.

February 26, 2008.

R.K. O'Donnell, Robert B. Reynolds, and James R. Korth, of McGinley, O'Donnell & Reynolds, P.C., L.L.O., Ogallala, for appellant.

Terrance O. Waite and S. David Schreiber, of Waite, McWha & Harvat, North Platte, for appellees.

INBODY, Chief Judge, and IRWIN and MOORE, Judges.

INBODY, Chief Judge.

INTRODUCTION

Courtney S. Jones, personal representative of the estate of her late husband, Richard E. Jones, appeals the order of the district court for Dundy County, in her suit against her in-laws Ronald L. Jones and Jean Marie Jones, that sustained Ronald and Jean Marie's motion for directed verdict on Courtney's cause of action for an accounting. We dismiss this appeal, case No. A-05-1076, for lack of jurisdiction.

STATEMENT OF FACTS

Courtney, personal representative of Richard's estate, filed a petition against Ronald and Jean Marie, alleging, inter alia, that a partnership existed between Richard and Ronald, and seeking, in its first cause of action, an accounting regarding the alleged partnership. The petition asserted three additional causes of action: delivery, conversion, and material misrepresentation.

A trial was held on the cause of action for an accounting, and after the close of evidence, the trial court sustained Ronald and Jean Marie's motion for a directed verdict. In announcing its ruling from the bench, the trial court stated:

[F]or appeal purposes, if you're thinking about appealing this we should probably enter an order today that says that's a final order, so that it is, because you have those other three.

...

... I just wanted to point out that if there are any considerations regarding an appeal, that you may wish to have that clearly stated that it's a final order so you don't get up there and have it come back again.

The trial court specifically found that there was "no evidence regarding a partnership of any type or kind." In a journal entry, the trial court stated, "The Court ordered that [Courtney] is not entitled to an accounting on any theory presented and the first cause of action is dismissed." Courtney filed a motion for new trial, and the trial court overruled the motion, stating, "[T]he order overruling the Motion for New Trial should be and hereby is designated as a final order for purposes of appeal." In a docket entry, the trial court stated that its ruling "regarding the accounting was and is a final order and there was no reason to delay that ruling."

On September 8, 2005, Courtney filed a notice of appeal from the order overruling the motion for new trial and the journal entry dismissing her accounting cause of action, and the appeal was docketed as case No. A-05-1076. Courtney's brief alleges a sole assignment of error: that the trial court erred in granting a directed verdict in favor of Ronald and Jean Marie. She does not assign or argue that the trial court erred in overruling her motion for new trial.

In the trial court, Ronald and Jean Marie filed a motion for summary judgment as to Courtney's remaining causes of action for delivery, conversion, and material misrepresentation. On September 27, 2005, the trial court entered a journal entry sustaining the motion for summary judgment, specifically finding that Courtney had testified under oath that "she knows of no activity of [Ronald and Jean Marie] that would give rise to her causes of action," and dismissed Courtney's petition. On the same day, Courtney filed a notice of appeal of the trial court's order that granted Ronald and Jean Marie's motion for summary judgment. That appeal was docketed as case No. A-05-1176.

On October 14, 2005, we dismissed case No. A-05-1076 with the following docket sheet minute entry:

Appeal dismissed by the court pursuant to Rule 7A(2). The district court's order is not a final and appealable order because it did not dispose of all the claims of all the parties as required by Neb. Rev.Stat. § 25-1315(Cum.Supp.2004). It is clear from the record that at least a counterclaim is still pending and possibly other causes of action.

It later came to our attention that the counterclaim referenced in this minute entry was erroneous because it was not in the present litigation, but instead in another suit which involved the same parties and which is not before this court at this time.

On October 21, 2005, Courtney filed a motion for reconsideration/motion to consolidate, requesting that we reconsider our dismissal of case No. A-05-1076 (cause of action for accounting) and consolidate it with case No. A-05-1176 (causes of action for delivery, conversion, and material mis-representation). On December 22, we denied the motion on the basis that the order appealed from in case No. A-05-1076 did not dispose of all of Courtney's claims, and we denied the motion to consolidate. Thus, case No. A-05-1076 was dismissed for lack of a final order, and case No. A-05-1176 remained pending and has remained so throughout the appellate history of the litigation.

Subsequently, we reinstated case No. A-05-1076 and consolidated it with case No. A-05-1176 with the following docket sheet minute entry:

It has come to the attention of the Court that the issues contained in A-05-1076 and A-05-1176 are interwoven and involved all four causes of action from the lower court. At the time that the appeal in A-05-1176 was filed, all issues had been disposed of by the district court and these cases should have been consolidated for appeal to this court. Although a previous motion to consolidate was denied, "[t]hrough this court's inherent judicial power, which is that power essential to the court's existence, dignity, and functions, we have authority to do all things that are reasonably necessary for the proper administration of justice." State v. Moore, 273 Neb. 495, 497, (2007). Therefore, the mandate in A-05-1076 is hereby recalled and the appeal is reinstated. Case Nos. A-05-1076 and A-05-1176 are consolidated for oral argument and disposition.

On August 24, 2007, Ronald and Jean Marie filed a motion for dismissal of case No. A-05-1076 pursuant to Neb. Ct. R. of Prac. 7B() (rev.2001), arguing that this court lacked jurisdiction. We heard oral arguments on both case No. A-05-1076 and case No. A-05-1176.

ASSIGNMENT OF ERROR

In case No. A-05-1076, Courtney alleges that the trial court erred in sustaining Ronald and Jean Marie's motion for directed verdict on her cause of action for an accounting.

STANDARD OF REVIEW

In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475 (2005). A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, when an issue should be decided as a matter of law. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005).

ANALYSIS

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006). Ronald and Jean Marie's latest motion asks us to...