Shuck v. Jacob, S-92-687

• Decision Date: 31 May 1996
• Docket Number: No. S-92-687,S-92-687
• Citation: 250 Neb. 126,548 N.W.2d 332
• Parties: Margaret V. SHUCK, Special Administrator of the Estate of Melody J. Hopper, deceased, Appellee, v. Steven M. JACOB, Appellant.
• Court: Nebraska Supreme Court

Page 332

548 N.W.2d 332

250 Neb. 126

Margaret V. SHUCK, Special Administrator of the Estate of Melody J. Hopper, deceased, Appellee, v. Steven M. JACOB, Appellant.

No. S-92-687.

Supreme Court of Nebraska.

May 31, 1996.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. Collateral Estoppel. One of the conditions for the doctrine of collateral estoppel to apply is that there must have been a judgment on the merits which was final.

4. Convictions: Sentences: Judgments: Appeal and Error. A conviction and sentence are not considered final judgments until after an appeal, if there is indeed an appeal.

5. Summary Judgment: Records: Appeal and Error. Affidavits, depositions, and other evidence considered at a hearing on a motion for summary judgment must be preserved in a bill of exceptions filed in the court before an order on such a motion may be reviewed.

6. Records: Appeal and Error. It is incumbent upon the party appealing to present a record which supports the errors assigned, and absent such a record, the decision of the lower court is generally affirmed.

7. Records: Appeal and Error. Once the appellant has made an adequate request, the preparation of the bill of exceptions becomes an internal court matter, and it is the duty of the reporter to properly fulfill this request.

8. Records: Rules of the Supreme Court. The procedure for preparation of the bill of exceptions is regulated by the rules of practice prescribed by the Nebraska Supreme Court.

Steven M. Jacob, pro se.

Thomas E. Zimmerman, of Jeffrey, Hahn, Hemmerling & Zimmerman, P.C., Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WHITE, Chief Justice.

Plaintiff-appellee, Margaret V. Shuck, brought this personal injury suit against defendant-appellant, Steven M. Jacob, after Jacob allegedly shot and killed Shuck's daughter, Melody J. Hopper. Jacob was convicted of first degree murder for the killing of Hopper. In the instant case, Shuck relied on the criminal conviction to support a motion for partial summary judgment as to liability in her civil action. The district court granted the motion for partial summary judgment as to liability. A jury subsequently awarded a money judgment to Shuck. Jacob appealed the judgment to the Nebraska Court of Appeals. His murder conviction was reversed by this court while his civil appeal was pending. The Court of Appeals affirmed the district court, and we granted Jacob's petition for further review.

Jacob assigns one error, that the Court of Appeals, by holding that Jacob's record on appeal and praecipe requesting the record were "insufficient," erred in affirming the district court. Shuck contends that the Court of Appeals erred (1) in finding that the conditions precedent for using Jacob's criminal conviction as collateral estoppel on the issue of liability were not fulfilled and (2) in overruling a praecipe for supplemental transcript filed by Shuck requesting proof of Jacob's murder conviction from his retrial on the criminal charges.

Jacob allegedly shot Hopper on August 2, 1989, and as a result, she died on August 7. On August 4, Hopper filed this personal injury civil action against Jacob based on the same facts as the criminal action. Shuck, the special administrator of Hopper's estate, was substituted as plaintiff after Hopper's death.

Jacob was subsequently found guilty and convicted of first degree murder. He appealed his criminal conviction to this court. On September 20, 1990, before this court ruled on the criminal appeal, Shuck filed a motion for partial summary judgment as to liability in the civil action. Shuck's counsel filed an affidavit in support of the motion for partial summary judgment which stated,

Upon information and belief, Affiant states that the above-named Defendant was found guilty of Murder in the First Degree in the death of Melody J. Hopper by a jury of his peers, constituting a collateral estoppel upon the issue of liability as set forth in the pleadings in the above-captioned action.

Jacob filed a plea in abatement in response to the motion, contending that his criminal conviction had been appealed and therefore was not a final judgment for purposes of collateral estoppel.

Three exhibits were received at the hearing on the motion for partial summary judgment. These exhibits are not contained in the record that was provided on appeal, nor are they described. The district court granted Shuck's motion for partial summary judgment as to liability and overruled the plea in abatement. In this regard, the judge stated in the trial court minutes,

[Motion] of [plaintiff] for partial summary judgment.... The Court finds that there are no genuine issues of fact re: the issue of liability and that the [plaintiff] is entitled to judgment as a matter of law on issue of liability as set forth in the pleadings. Filing # 5, [plaintiff's motion] for partial summary judgment is therefore sustained and judgment is hereby entered in favor of [plaintiff] and against [defendant] on the issue of liability as set forth in the pleadings. Filing # 6, [defendant's] plea in abatement is overruled. [Attorneys] notified by letter.

A jury subsequently awarded Shuck the sum of $734,704.

Jacob appealed the court's civil judgment pro se. While his civil appeal to the Court of Appeals was pending, the criminal conviction was reversed by this court, and remanded for a new trial. See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

The Court of Appeals held that the conditions precedent for applying collateral estoppel were not fulfilled at the time the motion for partial summary judgment was granted. Shuck v. Jacob, 95 NCA No. 33, case No. A-92-687, 1995 WL 495824 (1995) (not designated for permanent publication). The Court of Appeals concluded that because the conviction was being appealed, the criminal conviction was not a final judgment.

The Court of Appeals found, however, that the bill of exceptions failed to indicate whether Jacob's criminal conviction was the sole evidence in support of the motion for partial summary judgment and held that, based on the insufficient bill of exceptions, it could not conclude that the district court erred in granting the motion for partial summary judgment. The Court of Appeals, affirming the district court's judgment, concluded that Jacob's record and praecipe on appeal were insufficient.

Specifically, the Court of Appeals found that Jacob's request was too imprecise in nature to enable Jacob to obtain the exhibits concerning the partial summary judgment hearing. The Court of Appeals stated, "In sum, the praecipe is not specific enough to enable us to say that the record which we need, but find to be missing, was requested by Jacob. The fault lies in the imprecise nature of the praecipe, not because the court reporter did not produce what Jacob requested." 95 NCA No. 33 at 4.

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Zion Wheel Baptist Church v. Herzog, 249 Neb. 352, 543 N.W.2d 445 (1996).

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Gordon v. Connell, 249 Neb. 769, 545 N.W.2d 722 (1996).

Because Shuck contends that Jacob's criminal conviction was sufficient to invoke the doctrine of collateral estoppel for purposes of granting the motion for partial summary judgment, we address this issue before addressing the sufficiency of the record and Jacob's praecipes. We affirm the Court of Appeals' holding that a criminal conviction being appealed cannot be used to invoke the doctrine of collateral estoppel as to the defendant's liability in a civil suit.

One of the conditions for the doctrine of collateral estoppel to apply is that there must have been a judgment on the merits which was final. Farm Credit Bank v. Stute, 248 Neb. 573, 537 N.W.2d 496 (1995). A conviction and sentence are not considered final judgments until after an appeal, if there is indeed an appeal. State v. Schrein, 247 Neb. 256, 526 N.W.2d 420 (1995). As the Court of Appeals correctly noted, Jacob's conviction, which was being appealed at the time the motion for partial summary judgment was granted, could not be used for invoking the doctrine of collateral estoppel as to the issue of liability.

Shuck also contends that because Jacob has been convicted a second time on retrial, the issue of whether the first conviction could not be used for collateral estoppel is moot,...