Sports Courts of Omaha, Ltd. v. Meginnis

• Citation: 497 N.W.2d 38,242 Neb. 768
• Decision Date: 12 March 1993
• Docket Number: No. S-90-546,S-90-546
• Parties: ., a Nebraska Limited Partnership, Appellant and Cross-Appellee, v. Harry W. MEGINNIS, Jr., Appellee and Cross-Appellant. Supreme Court of Nebraska
• Court: Supreme Court of Nebraska

Page 38

497 N.W.2d 38

242 Neb. 768

SPORTS COURTS OF OMAHA, LTD., a Nebraska Limited Partnership, Appellant and Cross-Appellee, v. Harry W. MEGINNIS, Jr., Appellee and Cross-Appellant.

No. S-90-546.

Supreme Court of Nebraska.

March 12, 1993.

Syllabus by the Court

1. Courts: Jurisdiction: Appeal and Error. A district court is divested of subject matter jurisdiction over a particular case when an appeal of that case is perfected to an appellate court.

2. Statutes. Interpreting a statute presents a question of law for judicial determination.

3. Secured Transactions: Deeds: Trusts. The Nebraska Trust Deeds Act, Neb.Rev.Stat. § 76-1001 et seq. (Reissue 1990), provides a specific statutory plan to obtain performance of an obligation, prescribes a distinct procedure to dispose of security for performance of an obligation, and, generally, authorizes a form of financing quite apart from other methods recognized under Nebraska law.

4. Statutes. When statutory language is plain and unambiguous, no judicial interpretation is needed to ascertain the statute's meaning so that, in the absence of a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

5. Limitations of Actions: Legislature: Intent. A special statute of limitations controls and takes precedence over a general statute of limitations because the special statute is a specific expression of legislative will concerning a particular subject.

6. Secured Transactions: Deeds: Trusts: Limitations of Actions. The obligation secured by a deed of trust, not the title to the security, determines applicability or availability of the 3-month statute of limitations under Neb.Rev.Stat. § 76-1013 (Reissue 1990).

7. Attorney Fees: Actions: Words and Phrases. A legal position is frivolous for purposes of Neb.Rev.Stat. § 25-824(2) (Reissue 1989) if the position is wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit.

8. Actions. An action is frivolous or in bad faith if a party attempts to relitigate the same issue previously resolved in an action involving the same party.

9. Actions. Any doubt whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question.

10. Attorney Fees: Appeal and Error. On appeal, a trial court's decision Daniel E. Klaus and Donald L. Dunn of Rembolt Ludtke Parker & Berger, Lincoln, for appellant.

allowing or disallowing an attorney fee under Neb.Rev.Stat. § 25-824 (Reissue 1989) will be upheld in the absence of the trial court's abuse of discretion.

W. Michael Morrow of Hecht, Sweet, Morrow, Poppe & Otte, P.C., Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

Sports Courts of Omaha, Ltd., sued Harry W. Meginnis, Jr., as a comaker of a promissory note to Sports Courts. The district court for Lancaster County granted summary judgment to Meginnis on three bases, one of which is the 3-month statute of limitations contained in Neb.Rev.Stat. § 76-1013 (Reissue 1990) of the Nebraska Trust Deeds Act.

Sports Courts appeals and, referring to the statute of limitations issue, contends that the general 5-year statute of limitations, expressed in Neb.Rev.Stat. § 25-205 (Reissue 1989), governs the time limit for commencement of the action against Meginnis. In his cross-appeal, Meginnis claims that the district court erred by refusing to award an attorney fee to Meginnis for Sports Courts' action which, according to Meginnis, was frivolous.

STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Neb.Rev.Stat. § 25-1332 (Reissue 1989). See, also, Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992); Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988).

Interpreting a statute presents a question of law for judicial determination. See, Sarpy County v. City of Springfield, 241 Neb. 978, 492 N.W.2d 566 (1992); Weimer v. Amen, 235 Neb. 287, 455 N.W.2d 145 (1990); Sorensen v. City of Omaha, 230 Neb. 286, 430 N.W.2d 696 (1988). "Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review." Huffman v. Huffman, 232 Neb. 742, 748, 441 N.W.2d 899, 904 (1989). Accord, Young v. Dodge Cty. Bd. of Supervisors, 242 Neb. 1, 493 N.W.2d 160 (1992); Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).

BACKGROUND

According to the stipulated facts, Meginnis and Tom Schuessler were the shareholders of Tom-Har, Inc. Sports Courts sold an Omaha sports facility, including real estate and personal property, to Tom-Har for $600,000 reflected by a promissory note signed by Tom-Har, Schuessler, and Meginnis as comakers in 1984. The note was secured by a trust deed on the real estate involved in the Tom-Har sale.

On August 26, 1985, after Tom-Har failed to pay the note and had received Sports Courts' notice of default, the trustee, pursuant to the power of sale expressed in the trust deed, sold real estate described in the deed, but the proceeds from the sale were insufficient to pay the indebtedness of the sale price and corresponding promissory note.

Sports Courts' Douglas County Actions.

Before liquidating property under the deed of trust, Sports Courts had sued Meginnis and Schuessler in Douglas County on April 15, 1985, seeking $630,495 as principal and interest on the promissory note for the sale price. On April 23, 1986, the district court dismissed Sports Courts' action for want of prosecution, but, on October 15, 1987, pursuant to Sports Courts' motion, the court reinstated the suit. However, on April 18, 1988, the court again dismissed the Sports Courts action for failure to prosecute and, on June 30, 1989 On November 15, 1988, some 7 months after the district court had dismissed the first action on the note, Sports Courts filed a second suit on the promissory note. Meginnis was the only defendant in this second action. On May 12, 1989, Sports Courts dismissed the second action without prejudice.

refused to reinstate the action. On July 28, Sports Courts appealed the judgment denying reinstatement, but, on January 10, 1990, Sports Courts voluntarily dismissed its appeal.

The Lancaster County Action.

On November 13, 1989, 2 months before dismissal of its appeal from Douglas County, Sports Courts sued Meginnis in the district court for Lancaster County in an action essentially identical to its previous actions in Douglas County. Sports Courts alleged that, although the trustee had sold Tom-Har's real estate in 1985 under the deed of trust, there was still an unpaid balance on the note given by Tom-Har, Schuessler, and Meginnis. On June 30, 1989, the district court granted summary judgment to Meginnis on the grounds that (1) the district court for Lancaster County lacked subject matter jurisdiction because Sports Courts' appeal from Douglas County was pending when the action was filed in Lancaster County; (2) dismissal by the court in Douglas County operated as a res judicata bar to the action in Lancaster County; and (3) the action was barred by the 3-month statute of limitations concerning an action to collect a deficiency after liquidation pursuant to a deed of trust, that is, the statute of limitations expressed in § 76-1013, which in pertinent part provides:

At any time within three months after any sale of property under a trust deed, as hereinabove provided, an action may be commenced to recover the balance due upon the obligation for which the trust deed was given as security, and in such action the complaint shall set forth the entire amount of the indebtedness which was secured by such trust deed and the amount for which such property was sold and the fair market value thereof at the date of sale, together with interest on such indebtedness from the date of sale, the costs and expenses of exercising the power of sale and of the sale.

Relying on Neb.Rev.Stat. § 25-824(2) (Reissue 1989), Meginnis requested an attorney fee "due to the frivolous nature of the action filed by the plaintiff." The district court denied Meginnis' request for an attorney fee.

ASSIGNMENTS OF ERROR

Sports Courts contends that (1) the district court for Lancaster County had subject matter jurisdiction; (2) the applicable statute of limitations is § 25-205 (an action on any agreement, contract, or promise in writing must be brought within 5 years), rather than § 76-1013 and its 3-month limitation; and (3) the doctrine of res judicata is inapplicable to bar Sports Courts' suit in Lancaster County.

In his cross-appeal, Meginnis argues that the trial court erred by refusing to award an attorney fee.

SUBJECT MATTER JURISDICTION

The district court ruled that it lacked subject matter jurisdiction to consider Sports Court's suit because an appeal from the Douglas County action was pending when Sports Courts filed the Lancaster County action against Meginnis.

"When a trial court lacks the power, that is, jurisdiction, to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the trial court." State v. Miller, 240 Neb. 297, 300, 481 N.W.2d 580, 582 (1992). Accord, Nebraska State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb. 1, 465 N.W.2d 111 (1991); Andrews v. City of Lincoln, 224 Neb. 748, 401 N.W.2d 467 (1987). Therefore, before we can consider the merits of Sports Courts' present appeal, we must first decide whether the district court had jurisdiction to dispose of Sports Courts' action on its merits.

"Jurisdiction is the...