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MURRAY v. STINE
Cite as 291 Neb. 125
John E. Murray and Jim J. Fitl, as Cotrustees of the
Murray/Fitl Children’s Trust, a Nebraska trust,
and on behalf of 304 Corporation, a Nebraska
corporation, appellants and cross-appellees,
v. Greg Stine, an individual, an officer in
Premier Bank, and as former interim
manager of M id City Bank, et al.,
appellees and cross-appellants,
and Dennis A. O’Neal
et al., appellees.
John E. Murray and Jim J. Fitl, as Cotrustees of
the Murray/Fitl Children’s Trust, a Nebraska trust,
appellees, v. Greg Stine, an individual, an officer
in P remier Bank, and as former interim manager
of M id City Bank, et al., appellants, and
John F. Lund et al., appellees.
___ N.W.2d ___
Filed June 19, 2015. Nos. S-14-389, S-14-753.
1. Judgments: Jurisdiction. A jurisdictional question that does not involve
a factual dispute presents a question of law.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction.
3. Attorney Fees: Costs. Attorney fees, where recoverable, are generally
treated as an element of court costs.
4. Judgments: Costs. An award of costs in a judgment is considered a part
of the judgment.
5. Judgments: Attorney Fees. A party seeking statutorily authorized attor-
ney fees, for services rendered in a trial court, must make a request for
such fees prior to a judgment in the cause.
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6. ____: ____. Silence of a judgment on the issue of attorney fees must be
construed as a denial of the request.
7. Judgments: Final Orders: Attorney Fees. When a motion for attorney
fees under Neb. Rev. Stat. § 25-824 (Reissue 2008) is made prior to the
judgment of the court in which the attorney’s services were rendered, the
judgment will not become final and appealable until the court has ruled
upon that motion.
8. Appeal and Error. A notice of appeal from a nonappealable order does
not render void for lack of jurisdiction acts of the trial court taken in the
interval between the filing of the notice and the dismissal of the appeal
by the appellate court.
Appeals from the District Court for Douglas County: W.
M ark Ashford, Judge. Appeals dismissed.
James D. Sherrets, Diana J. Vogt, and Jared C. Olson, of
Sherrets, Bruno & Vogt, L.L.C., for appellants John E. Murray
et al. in No. S-14-389 and appellees John E. Murray et al. in
No. S-14-753.
Thomas J. McCusker, Michael J. Mills, and Ryan A. Steen,
of Gettman & Mills, L.L.P., for appellees Dennis A. O’Neal
et al.
William R. Reinsch, of Reinsch, Slattery, Bear & Minahan,
P.C., L.L.O., for appellee Ken Grigsby.
Steven D. Davidson, of Baird Holm, L.L.P., for appellee
Vance D. Gardiner.
William F. Hargens and Lauren R. Goodman, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellees Greg Stine
and Premier Bank in No. S-14-389 and appellants Greg Stine
and Premier Bank in No. S-14-753.
John P. Passarelli and Todd C. Kinney, of Kutak Rock,
L.L.P., for appellees William J. Lindsay, Jr., et al.
Heavican, C.J., Wright, Connolly, McCormack, and
Cassel, JJ.
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Per Curiam.
INTRODUCTION
Because of unresolved motions for attorney fees, we lack
jurisdiction and must dismiss two attempts to appeal from an
action for breach of fiduciary duties. The fee motions were
filed after summary judgment motions were heard but before
they were decided. The first appeal followed the summary
judgment ruling. The undisposed fee motions prevented that
ruling from being final. The second appeal followed the district
court’s refusal, citing lack of jurisdiction, to rule on the fee
motions. Until the fee motions are decided, there is no final
judgment and no appellate jurisdiction.
BACKGROUND
The cotrustees of a trust filed suit against a number of par-
ties. The cotrustees alleged, among other causes of action, that
the defendants breached their fiduciary duties.
Upon motions to dismiss, the district court dismissed
five of the cotrustees’ eight causes of action. The remain-
ing defendants then filed answers, some of which specifi-
cally requested attorney fees under Neb. Rev. Stat. § 25-824
(Reissue 2008).
Subsequently, the remaining defendants filed motions for
summary judgment. The district court heard the motions on
April 7, 2014. On April 8 and 9, several defendants filed
motions seeking attorney fees under § 25-824. The motions
were set to be heard on May 12.
On April 16, 2014, the district court entered orders grant-
ing the motions for summary judgment. The orders were silent
as to attorney fees. On May 2—10 days before the scheduled
hearing on the motions for attorney fees—the cotrustees filed
a notice of appeal in the district court, which was docketed as
our case No. S-14-389.
The district court subsequently entered an order finding that
it did not have jurisdiction to hear the motions for attorney
fees because of the pending appeal. Several defendants timely
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Cite as 291 Neb. 125
filed an appeal from that order, which appeal was docketed as
our case No. S-14-753.
The appeals were consolidated for briefing and disposition,
and we moved them to our docket.1
ASSIGNMENTS OF ERROR
The cotrustees assign seven errors which, consolidated and
restated, allege that the district court erred in (1) dismissing
their first five causes of action for failure to state a claim and
(2) granting summary judgment and dismissing their sixth
through eighth causes of action.
Several defendants included in the consolidated briefing
what they characterized as cross-appeals challenging the dis-
trict court’s refusal to rule on their motions for attorney fees
under § 25-824.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute presents a question of law.2
ANALYSIS
[2] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction.3 We must determine whether the absence of a rul-
ing on the motions for attorney fees prevents us from acquir-
ing jurisdiction over the appeals.
[3-5] Attorney fees, where recoverable, are generally treated
as an element of court costs.4 And an award of costs in a judg-
ment is considered a part of the judgment.5 We have stated
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 N.W.2d
425 (2015).
3
Id.
4
See Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003).
5
Id.
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that a party seeking statutorily authorized attorney fees, for
services rendered in a trial court, must make a request for such
fees prior to a judgment in the cause.6
Two lines of authority with divergent consequences are
implicated by the procedural background of this case. On the
one hand, some defendants requested attorney fees in their
answers, and the judgment contained no explicit ruling on the
issue. On the other hand, some defendants also filed separate
motions for attorney fees before entry of judgment, and the
hearing on the motions had not yet occurred at the time the
cotrustees filed their notice of appeal. We discuss the conse-
quences of each situation in more detail.
[6] We have stated that silence of a judgment on the issue
of attorney fees must be construed as a denial of the request.7
In Olson v. Palagi,8 the defendant’s answer requested attor-
ney fees under a statute9 authorizing such an award in a child
support modification proceeding. The trial court’s judgment
did not explicitly rule on the request, and the court’s docket
entry stated that there were no matters under advisement.
After entry of judgment, the defendant filed a separate appli-
cation for attorney fees and the plaintiff appealed prior to the
scheduled hearing on attorney fees. The defendant did not
cross-appeal on the issue of attorney fees, and the Nebraska
Court of Appeals and the parties treated the judgment as a
final order. We stated, “The silence of the judgment on the
issue of attorney fees must be construed as a denial of [the
defendant’s] request under these circumstances.”10 Similarly,
in NEBCO, Inc. v. Murphy,11 a party sought an award of
6
See Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).
7
See Olson v. Palagi, supra note 4.
8
Id.
9
See Neb. Rev. Stat. § 42-351 (Reissue 2008).
10
Olson v. Palagi, supra note 4, 266 Neb. at 380, 665 N.W.2d at 585.
11
NEBCO, Inc. v. Murphy, 280 Neb. 145, 784 N.W.2d 447 (2010).
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attorney fees under § 25-824 in a responsive pleading to two
different complaints. The court explicitly denied the request
in one case, but its order in the other case was silent on the
issue of attorney fees. We noted that the defendant did not file
a separate motion for attorney fees and stated that the court
rejected both requests, either explicitly or implicitly.
[7] But we have also held that when a motion for attorney
fees under § 25-824 is made prior to the judgment of the court
in which the attorney’s services were rendered, the judgment
will not become final and appealable until the court has ruled
upon that motion.12 Additionally, we have declined to exercise
jurisdiction when an appeal is filed before a scheduled hear-
ing or when the trial court has reserved ruling on attorney
fees. In Billingsley v. BFM Liquor Mgmt.,13 the parties stipu-
lated prior to trial that the trial court would reserve ruling on
the plaintiff’s request for equitable relief until after the jury
determined any damages. After the court entered judgment on
the jury verdict, the plaintiff filed a motion seeking an order
regarding the equitable relief he had requested, as well as
attorney fees. The defendant appealed before the scheduled
hearing on the motion. We concluded that a determination of
whether the plaintiff was entitled to equitable relief or attor-
ney fees was necessary to completely dispose of the matter,
and thus, the “judgment” on the jury verdict was not final
and appealable. In In re Guardianship & Conservatorship of
Woltemath,14 a responsive pleading requested attorney fees
under § 25-824 and the trial court’s order dismissing the peti-
tion specifically reserved the issue of attorney fees. We con-
cluded that the appeals taken prior to a ruling on attorney fees
were premature.
12
Salkin v. Jacobsen, supra note 6.
13
Billingsley v. BFM Liquor Mgmt., 259 Neb. 992, 613 N.W.2d 478 (2000).
14
In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680
N.W.2d 142 (2004).
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Even if the order granting the summary judgment motions
implicitly denied the requests for attorney fees included in the
respective answers, it clearly did not dispose of the separate
motions for attorney fees. In addition to requests for attorney
fees asserted in answers, several defendants also filed separate
motions seeking such fees under § 25-824. These motions
were properly made before the court entered its orders granting
summary judgment. It is noteworthy that a hearing on attor-
ney fees was scheduled but had not yet occurred at the time
the court entered its orders. Under these circumstances, the
court’s silence on the issue cannot be considered a denial of the
request. We conclude that the absence of a ruling on attorney
fees left a portion of the judgment unresolved and that thus,
the orders from which the cotrustees appealed were not final.
We must dismiss the appeal in case No. S-14-389 for lack of a
final, appealable order.
[8] Because the cotrustees appealed from nonfinal orders,
the district court never lost jurisdiction of the case. A notice
of appeal from a nonappealable order does not render void for
lack of jurisdiction acts of the trial court taken in the interval
between the filing of the notice and the dismissal of the appeal
by the appellate court.15 The cotrustees’ appeal from nonfinal
orders did not divest the district court of jurisdiction to rule
on the motions for attorney fees. Because the court declined to
rule on the motions, they are still pending. Thus, the situation
in the second appeal does not differ materially from that in
the first appeal. Because the motions for attorney fees remain
undisposed, the district court has not entered a judgment or
final order from which an appeal may be taken. We therefore
dismiss the appeal in case No. S-14-753.
CONCLUSION
Requests for attorney fees under § 25-824 were made
prior to judgment and were set for a hearing. But before the
15
In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).
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scheduled hearing occurred, the district court entered orders
granting summary judgment and the cotrustees filed an appeal
from those orders. Because the absence of a ruling on attor-
ney fees left a portion of the judgment unresolved, the orders
from which the cotrustees appealed were not final. Thus,
we lack jurisdiction of the first appeal. Although the district
court retained jurisdiction to rule on the motions for attorney
fees, it believed that it lacked jurisdiction. The court declined
to rule on the motions, which are still pending before that
court. Because the motions have not been disposed, we also
lack jurisdiction of the second appeal. We therefore dismiss
both appeals.
A ppeals dismissed.
Stephan and Miller-Lerman, JJ., not participating.