Malolepszy v. State, S-04-667.
| Decision Date | 01 July 2005 |
| Docket Number | No. S-04-667.,S-04-667. |
| Citation | 699 N.W.2d 387,270 Neb. 100 |
| Court | Nebraska Supreme Court |
| Parties | James MALOLEPSZY and Lynn Malolepszy, appellants, v. STATE of Nebraska, defendant and third-party plaintiff, appellee, and Chas. Vrana & Son Construction Co., third-party defendant, appellee. |
James E. Schaefer and Jill A. Daley, Senior Certified Law Student, of Gallup & Schaefer, for appellants.
Jon Bruning, Attorney General, and Matthew F. Gaffey for appellee State of Nebraska.
James Malolepszy was injured in a motor vehicle accident which occurred in a highway construction zone. James and his wife, Lynn Malolepszy, appellants, sued the State of Nebraska, an appellee, in the district court for Douglas County. The State filed a third-party complaint against Chas. Vrana & Son Construction Co. (Vrana), the company contracted by the State to carry out the highway construction, and Charles Atkins, the driver of the other vehicle involved in the accident, who was subsequently dismissed as a party. The State filed a motion for summary judgment. On May 13, 2004, the district court granted the State's motion for summary judgment and dismissed the Malolepszys' petition against the State. The third-party action filed by the State against Vrana was not resolved in the May 13 order, and the district court did not direct the entry of a final judgment under Neb.Rev.Stat. § 25-1315(1) (Cum.Supp.2004) as between the Malolepszys and the State. The Malolepszys appeal. Because there was no express adjudication of the State's third-party action against Vrana and the district court did not make an express determination and express direction to enter judgment on the Malolepszys' claim against the State as required by § 25-1315(1), this court is without jurisdiction, and we dismiss the appeal.
At approximately 12:30 p.m. on May 23, 2001, James was driving his black Jeep Cherokee in an easterly direction within a highway construction zone on West Dodge Road in Omaha, Nebraska. Lynn was driving another vehicle following him. At the time, the State, through the Department of Roads, was undertaking a highway construction project on West Dodge Road from approximately 155th to 170th Streets in Omaha; however, the roadway remained open for public travel, with one lane of traffic in each direction. As James traveled east, he approached the area where a bridge for 168th Street was being constructed over West Dodge Road. A pickup truck operated by Atkins was stopped along the south shoulder of the eastbound lane of West Dodge Road at 168th Street. Atkins' truck was facing in a northwesterly direction. When James was approximately one-half to one car length from where Atkins' truck was stopped, Atkins suddenly pulled out in front of James' Jeep, and the vehicles immediately collided. James was seriously injured in the collision.
On July 15, 2002, James filed an action against the State pursuant to the State Tort Claims Act. On March 18, 2003, an amended petition was filed which also named Lynn as a plaintiff. The Malolepszys asserted three causes of action: negligence, negligent infliction of emotional distress, and loss of consortium. They alleged, inter alia, that (1) the State had a duty to warn of the dangerous and hazardous conditions existing on the roadway and to utilize fundamental safety principles when routing traffic through construction and maintenance sites, (2) the State breached its duty when it failed in certain respects to provide adequate warnings and safe roadway conditions, and (3) the injuries which resulted from the collision were directly and proximately caused by the negligence of the State.
On August 13, 2003, the State filed a third-party complaint against Vrana and Atkins. In its third-party complaint, the State prayed that in the event of a judgment in favor of the Malolepszys against the State, the court award judgment in favor of the State against Vrana and Atkins in an amount proportional to the relative negligence of each third-party defendant. On March 17, 2004, Atkins was dismissed from the action on the State's motion. The State's action against Vrana remained pending.
On April 6, 2004, the State moved for summary judgment against the Malolepszys. A hearing on the motion was held on May 6. On May 13, the court entered an order sustaining the motion. In summary, the court concluded as a matter of law that Atkins was negligent and that his negligence was the sole proximate cause of the collision. In this regard, the court determined that the Department of Roads' design and construction choices were not relevant to examining the causes of the collision because the State was not bound to have anticipated or to have contemplated that a driver in Atkins' position would negligently enter an oncoming lane of traffic without yielding to traffic in that lane. The court determined that there were no factual issues regarding the proximate cause of the accident for a finder of fact to resolve, and it therefore sustained the State's motion for summary judgment and dismissed the Malolepszys' petition against the State. In the May 13 order, the court made no findings or orders regarding the State's pending third-party complaint against Vrana.
The Malolepszys filed a notice of appeal on May 27, 2004. On June 30, the Nebraska Court of Appeals issued an order for the Malolepszys to show cause why, in light of the fact that the May 13 order was silent with respect to the third-party action brought by the State against Vrana, the appeal should not be dismissed for lack of jurisdiction because there was no final, appealable order. In response, the Malolepszys filed an affidavit stating that they had not joined Vrana as a defendant and asserting that the May 13 order was final because it disposed of the claims set forth in their petition. The Court of Appeals ordered the appeal to proceed and ordered the parties to address in their briefs the jurisdictional issue regarding the applicability of § 25-1315(1) with respect to the third-party action brought by the State against Vrana. The appeal was subsequently moved to this court's docket.
The Malolepszys assert that the district court erred in granting the State's motion for summary judgment.
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (2004).
Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726 (2004). We find it necessary to examine jurisdiction in this case. Section 25-1315(1) controls our analysis. Section 25-1315(1) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Although the district court in its May 13, 2004, order dismissed the Malolepszys' petition against the State, the court did not explicitly adjudicate the State's pending third-party claim against Vrana, and the court did not make the express determination and the express direction required by § 25-1315(1) in cases involving multiple claims or parties. Therefore, as explained below, we conclude that this court lacks jurisdiction over this case and that the appeal must be dismissed.
We noted in Keef v. State, 262 Neb. 622, 628, 634 N.W.2d 751, 758 (2001), that "[p]rior to the enactment of § 25-1315, an order that effected a dismissal with respect to one of multiple parties was a final, appealable order, and the complete dismissal with prejudice of one of multiple causes of action was a final, appealable order" but that after the enactment of § 25-1315, the statute "permits a judgment to become final only under the limited circumstances set forth in the statute." We also noted that "by its terms, § 25-1315(1) is implicated only where multiple causes of action are presented or multiple parties are involved, and a final judgment is entered as to one of the parties or causes of action." 262 Neb. at 627-28, 634 N.W.2d at 757.
The Malolepszys contend that the requirements of § 25-1315(1) do not apply to their appeal because they did not join Vrana as a party and that instead, the State, by virtue of its third-party complaint, joined Vrana as a third-party. The Malolepszys argue, in effect, that their action does not include a claim against Vrana. We reject the Malolepszys' argument. By its terms, § 25-1315(1) encompasses actions in which "more than one claim for relief is presented ... whether as a claim, counterclaim, crossclaim, or third-party claim." Because the present case undeniably involves a "third-party claim" and is an action where "more than one claim for relief is presented," it is therefore an action implicating § 25-1315(1).
The May 13, 2004, order from which the Malolepszys attempt to appeal...
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