Vopalka v. Abraham

• Decision Date: 01 December 2000
• Docket Number: No. S-99-893.,S-99-893.
• Citation: 619 N.W.2d 594,260 Neb. 737
• Parties: Joseph VOPALKA, Appellant, v. Eddie ABRAHAM and Walter Minshall, Appellees.
• Court: Nebraska Supreme Court

619 N.W.2d 594

260 Neb. 737

Joseph VOPALKA, Appellant, v. Eddie ABRAHAM and Walter Minshall, Appellees.

No. S-99-893.

Supreme Court of Nebraska.

December 1, 2000.

Michael B. Kratville, P.C., Omaha, for appellant.

Thomas A. Otepka, of Woodke, Otepka & Gibbons, P.C., Omaha, for appellee.

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

MILLER-LERMAN, J.

I. NATURE OF CASE

Joseph Vopalka filed a negligence action against Eddie Abraham and Walter Minshall (defendants), in the district court for Douglas County. The district court granted summary judgment in favor of the defendants, and Vopalka appealed to the Nebraska Court of Appeals. The Court of Appeals reversed the district court's order granting summary judgment. Vopalka v. Abraham, 9 Neb.App. 285, 610 N.W.2d 433 (2000). The Court of Appeals determined that because Vopalka had failed to serve the defendants within 6 months after filing his petition as required by Neb.Rev.Stat. § 25-217 (Reissue 1995), the action stood dismissed and the district court thereafter lacked jurisdiction to consider the defendants' motion for summary judgment. The Court of Appeals reversed the order of the district court granting summary judgment in favor of the defendants and remanded the cause to the district court with directions to dismiss the action. Vopalka v. Abraham, supra.

Vopalka petitioned this court for further review, which we granted. For the reasons recited below, we agree with the reasoning of the Court of Appeals that after dismissal under § 25-217, the action stood dismissed, and that the district court had no jurisdiction to make orders thereafter except to formalize the dismissal. Specifically, the district court lacked jurisdiction to consider the defendants' motion for summary judgment. Given the lack of jurisdiction of the district court, the Court of Appeals more properly should have vacated rather than reversed the district court's order granting summary judgment. Accordingly, we reverse, and remand to the Court of Appeals with directions to remand the cause to the district court with directions to the district court to vacate the order granting summary judgment in favor of the defendants and to enter an order that Vopalka's petition stands dismissed pursuant to § 25-217.

II. STATEMENT OF FACTS

At issue in this case is the effect of § 25-217 on an action in which the defendants have not been served within 6 months from the date the petition was filed. Section 25-217 provides that "[a]n action is commenced on the date the petition is filed with the court. The action shall stand dismissed without prejudice as to any defendant not served within six months from the date the petition was filed."

In the instant case, Vopalka filed a petition against Abraham and Minshall on April 7, 1998, alleging he sustained injuries in an accident which occurred April 10, 1994. Neither defendant was served with the petition within 6 months after Vopalka filed the petition. On January 25, 1999, each defendant filed a voluntary appearance in which he stated that he had received a copy of the petition on January 12, that he submitted to the jurisdiction of the district court, and that he would file an answer within 30 days. On March 10, the defendants filed an answer generally denying the allegations in the petition and specifically denying that they were negligent. The defendants further alleged that Vopalka's injuries were a result of his own negligence and contributory negligence and that Vopalka's action against them was barred by the applicable statute of limitations. On March 11, Vopalka filed a reply denying the defendants' affirmative defenses.

The record on appeal is not complete but it appears that at some point, Vopalka filed a motion to reinstate the case to the active trial docket, that the defendants objected to such reinstatement, and that the district court reinstated the case to the trial docket on July 13, 1999.

The defendants filed a motion for summary judgment on July 13, 1999, claiming that the case should be dismissed because Vopalka had failed to serve them with the petition within 6 months of filing. After taking judicial notice of the court file, the district court found that Vopalka had failed to serve the defendants within 6 months of the date he had filed his petition and therefore sustained the defendants' motion for summary judgment.

Vopalka appealed the district court's order granting summary judgment in favor of the defendants to the Court of Appeals. Vopalka claimed that by entering their voluntary appearances, the defendants had waived any objection related to his failure to serve them within 6 months of the filing of his petition as required under § 25-217. The Court of Appeals rejected Vopalka's argument and reversed the district court's grant of summary judgment and remanded the cause with directions to dismiss. Vopalka v. Abraham, 9 Neb.App. 285, 610 N.W.2d 433 (2000).

The Court of Appeals held that pursuant to § 25-217, the unserved petition filed April 7, 1998, had been dismissed by operation of law as of October 7, and that subsequent to that date, the district court lacked jurisdiction to make any orders, except to formalize the dismissal. The Court of Appeals noted that a voluntary appearance is equivalent to service of process, and the defendants' voluntary appearances filed January 25, 1999, effectively amounted to service on January 25, which was not within 6 months after the date Vopalka had filed his petition. The voluntary appearances were filed at a point in time after which the case stood dismissed under § 25-217. The Court of Appeals concluded that the district court erred in reinstating the case and in hearing and granting the defendants' motion for summary judgment, and reversed these orders. The Court of Appeals remanded the cause with directions to the district court to dismiss the case.

III. ASSIGNMENTS OF ERROR

Vopalka asserts that the Court of Appeals erred in (1) failing to hold that the defendants waived the operation of § 25-217 by filing voluntary appearances and (2) failing to find that the defendants' failure to cross-appeal the district court's reinstatement of the action waived the operation of § 25-217.

IV. STANDARDS OF REVIEW

Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Airport Auth. of Village of Greeley v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000).

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. Prucha v. Kahlandt, 260 Neb. 366, 618 N.W.2d 399 (2000).

V. ANALYSIS

1. COURT OF APPEALS' HOLDINGS IN Vopalka v. Abraham

The Court of Appeals' disposition of this case was premised on two holdings. First, the Court of Appeals held that § 25-217 is self-executing and, thus, an action is dismissed by operation of law as to any defendant who has not been served within 6 months after the petition was filed. Vopalka v. Abraham, supra.

This holding was based on the Court of Appeals' prior decisions in Cotton v. Fruge, 8 Neb.App. 484, 596 N.W.2d 32 (1999), and McDaneld v. Fischer, 8 Neb.App. 160, 589 N.W.2d 172 (1999). Second, the Court of Appeals held that after dismissal by operation of law, a trial court lacks jurisdiction to enter any orders in such action, except to formalize the dismissal, and that any orders other than a formal dismissal of the case made by the trial court subsequent to the dismissal by operation of law are nullities. Vopalka v. Abraham, supra. The second holding was based on the Court of Appeals' similar decision in Cotton. Based on these holdings, the Court of Appeals concluded that Vopalka's unserved petition was dismissed by operation of law on October 7, 1998, which was 6 months after filing the petition, and that the district court lacked jurisdiction after October 7, either to reinstate the action or to enter summary judgment.

We note that no further review was sought in either McDaneld or Cotton, and we have not previously had occasion to decide the issues surrounding the effect of § 25-217 upon actions in which the defendant has not been served with a petition within 6 months of filing the petition. In order to review the decision of the Court of Appeals in the instant case, we must decide whether the Court of Appeals was correct in holding that § 25-217 is self-executing and in holding that dismissal by operation of law under § 25-217 deprives the trial court of jurisdiction to take action subsequent to such dismissal other than to formalize the dismissal. In connection with our analysis of Vopalka v. Abraham, 9 Neb.App. 285, 610 N.W.2d 433 (2000), a brief review of the decisions in McDaneld and Cotton is useful.

(a) § 25-217 as Self-Executing Under McDaneld v. Fischer

In McDaneld v. Fischer, supra,

the Court of Appeals first held that § 25-217 is self-executing and that § 25-217 requires that an action be dismissed by operation of law as to a defendant who is not served within 6 months after the petition is filed. In McDaneld, the Court of Appeals recognized that the issues surrounding § 25-217 were ones of first impression and therefore explained the reasons for its holding.

The Court of Appeals began its interpretation of § 25-217 by examining the language of the statute and determined that although the statute provided that the action "shall stand dismissed" if the petition was not served within 6 months of filing, § 25-217 failed to delineate how such dismissal occurs. The Court of Appeals posited that dismissal might occur by "motion and order," or "upon the court's own motion," or by passage of time with or without a trial court order. McDaneld v. Fischer, 8 Neb.App. at 165, 589 N.W.2d at 176...