Smith v. LINCOLN MEADOWS HOMEOWNERS

• Decision Date: 23 April 2004
• Docket Number: No. S-02-1467.,S-02-1467.
• Citation: 267 Neb. 849,678 N.W.2d 726
• Parties: Michelle SMITH, appellant, v. LINCOLN MEADOWS HOMEOWNERS ASSOCIATION, INC., a Nebraska corporation, appellee.
• Court: Nebraska Supreme Court

678 N.W.2d 726

267 Neb. 849

Michelle SMITH, appellant, v. LINCOLN MEADOWS HOMEOWNERS ASSOCIATION, INC., a Nebraska corporation, appellee.

No. S-02-1467.

Supreme Court of Nebraska.

April 23, 2004.

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

Mark A. Christensen and Pamela Epp Olsen, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellee.

HENDRY, C.J., and CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

BACKGROUND

This is a premises liability action, in which the plaintiff, Michelle Smith, alleged that she was injured on the premises of Lincoln Meadows Homeowners Association, Inc. (Homeowners Association), when the Homeowners Association's swing set broke. Smith sued the Homeowners Association, alleging damages including broken bones, spinal injuries, disability, lost wages, and, most pertinent, that her fall triggered the onset of multiple sclerosis (MS). The Homeowners Association filed a pretrial motion for partial summary judgment on the allegation of MS, in conjunction with a motion in limine to exclude the plaintiff's expert testimony supporting that allegation.

The district court held a hearing to determine if the plaintiff's expert testimony satisfied the standards adopted in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). The court concluded that the plaintiff's expert testimony was inadmissible and granted the Homeowners Association's motion in limine. Because Smith was without admissible expert testimony to support her MS allegation, the court entered partial summary judgment with respect to that component of Smith's damages.

Smith then filed a motion to dismiss her sole cause of action, without prejudice, purporting to reserve her right to appeal from the partial summary judgment. In particular, the motion asked the court

for a final ORDER dismissing the above-entitled action without prejudice in accordance with Neb.Rev.Stat. § 25-601(1) (Reissue 1995). In keeping with this Motion, Plaintiff expressly reserves her right to appeal this Court's Order dated January 18, 2002 granting partial summary judgment on the issue of multiple sclerosis to the Defendant.

The court granted the motion to dismiss without prejudice, stating, in an order prepared by Smith's counsel, that "the Plaintiff shall have the right if she so elects to timely appeal this Court's now final ruling on the issue of multiple sclerosis as contained in the Court's order dated January 18, 2002." The court's order dismissed Smith's petition without prejudice. Smith then filed a notice of appeal.

ASSIGNMENTS OF ERROR

Smith assigns, consolidated and restated, that the court erred in granting the Homeowners Association's motion in limine excluding the testimony of Smith's expert witness and in granting the Homeowners Association's motion for partial summary judgment.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Mumin v. Dees, 266 Neb. 201, 663 N.W.2d 125 (2003).

ANALYSIS

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. Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003). For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Pennfield Oil Co. v. Winstrom, 267 p. 288, 673 N.W.2d 558 (2004).

In this appeal, Smith's voluntary dismissal without prejudice of her only cause of action is, quite clearly, an attempt to obtain interlocutory review of an order that would otherwise not be appealable. See, e.g., Cerny v. Longley, 266 Neb. 26, 661 N.W.2d 696 (2003) (explaining limited circumstances under which partial summary judgment may be appealed). Because of doubts concerning our appellate jurisdiction, prior to oral argument in this matter, we entered an order to show cause why this appeal should not be dismissed for lack of a final, appealable order. Smith's argument in response to our order to show cause is unpersuasive, and we conclude that there is no final order in this case.

Smith does not dispute that absent her voluntary dismissal, the partial summary judgment and the court's ruling on the motion in limine would not be appealable orders. See Cerny, supra.

Therefore, the question presented here is whether a voluntary dismissal without prejudice, under these circumstances, can effectively create finality and confer appellate jurisdiction.

Our case law makes clear that it cannot. We have previously explained that a plaintiff cannot consent to an order of dismissal and seek review of the order. Hill v. Women's Med. Ctr. of Neb., 254 Neb. 827, 580 N.W.2d 102 (1998). Only a party aggrieved by an order or judgment can appeal; one who has been granted that which he or she sought has not been aggrieved. Federal Dep. Ins. Corp. v. Swanson, 231 Neb. 148, 435 N.W.2d 659 (1989), overruled in part on other grounds, Eccleston v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1992)

. See, also, Wrede v. Exchange Bank of Gibbon, 247 Neb. 907, 531 N.W.2d 523 (1995) (recognizing overruling in part). Simply put, "a party is not entitled to prosecute error upon the granting of an order or the rendition of a judgment when the same was made with his [or her] consent, or upon his [or her] application." Robins v. Sandoz, 175 Neb. 5, 11-12, 120 N.W.2d 360, 364 (1963). Accord Hill, supra.

In State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999), Michael Dorcey was charged in the county court with driving under the influence of alcohol. The county court granted Dorcey's pretrial motion to suppress evidence, and the county attorney, on behalf of the State, voluntarily dismissed the complaint. Thereafter, the State filed a notice of its intent to appeal the county court's order sustaining the motion to suppress. On appeal, the district court concluded that it had no jurisdiction to consider the State's appeal because the notice of appeal was filed by the State in a voluntarily dismissed case. We agreed, stating that "[w]hen a case is dismissed by a party, the controversy between the parties upon which a trial court may act ends." Id. at 799, 592 N.W.2d at 498.

Parties to a case are incapable of pursuing judicial relief in the case after it has been voluntarily dismissed.... Where the case is voluntarily dismissed, there is no final order on the law or facts of the case ... nor has there been a decision on the merits.... Accordingly, no appeal will lie.

(Citations omitted.) Id. at 799-800, 592 N.W.2d at 498. See, also, State v. Jacob, 256 Neb. 492, 591 N.W.2d 541 (1999).

In response to our order to show cause, Smith relies on Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000), which Smith claims presents an analogous situation to the instant case. In that case, Judy Iwanski sued her physician and former employer, William Gomes, for professional negligence and intentional infliction of emotional distress, attributing her severe emotional distress to the lingering effects of a defunct sexual relationship with Gomes. The district court granted partial summary judgment for Gomes. First, the court concluded that Gomes' conduct did not constitute intentional infliction of emotional distress, as a matter of law. Second, the court concluded that the sexual contact between the parties was not sufficiently linked to medical treatment to support the theory of professional negligence. The court denied summary judgment, however, as to any acts arising in the course of medical treatment. Iwanski voluntarily dismissed the remaining allegations and filed a timely appeal from the court's order dismissing the operative petition. This court, without discussing appellate jurisdiction, disposed of Iwanski's appeal on the merits. See id.

However, Iwanski is distinguishable from the case at bar. In Iwanski, the district court dismissed distinct theories of recovery and Iwanski voluntarily dismissed her other allegations in order to resolve all the matters pending before the court. Even setting aside the voluntarily dismissed allegations, the two theories of recovery against which partial summary judgment had been entered remained for appellate review. Iwanski did not attempt to prosecute error with respect to any of the allegations she voluntarily dismissed.

In this case, however, Smith brought a single cause of action, with a single theory of recovery. That cause of action remained viable after the district court's partial summary judgment as to one element of damages. Smith voluntarily dismissed her only cause of action, without prejudice, and the errors she assigns on appeal relate solely to the cause of action she dismissed. The holdings of State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999), and Robins v. Sandoz, 175 Neb. 5, 120 N.W.2d 360 (1963), are squarely on point in this circumstance.

Smith also relies on federal authority that, according to her, supports the exercise of appellate jurisdiction over a case that has been voluntarily dismissed at the trial level. But the authority cited does not support Smith's argument. For instance, Smith cites Hicks v. NLO, Inc., 825 F.2d 118 (6th Cir.1987), for the proposition that "parties can stipulate under [Fed.R.Civ.P.] 41(a) to dismissals of remaining claims without prejudice to obtain finality for an otherwise interlocutory order that the parties seek to appeal before proceeding to trial." Memorandum brief for appellant in response to order to show cause at 3. But Hicks, 825 F.2d at 120, specifically holds that

[w]here a court has entered judgment against a plaintiff in a case involving more than one claim and the plaintiff voluntarily

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