Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/23/2022 08:07 AM CDT
- 287 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
HUNTINGTON GROUP V. J-TON CONTRACTORS
Cite as 31 Neb. App. 287
Huntington Group, L.L.C., a Nebraska limited liability
corporation, appellee, v. J-Ton Contractors, Inc.,
a Nebraska corporation, appellant.
___ N.W.2d ___
Filed August 23, 2022. No. A-21-612.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that 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.
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 over the appeal.
3. Final Orders: Appeal and Error. An order is final for purposes of
appeal under Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) if it affects a
substantial right and (1) determines the action and prevents a judgment,
(2) is made during a special proceeding, or (3) is made on summary
application in an action after judgment is rendered.
4. Actions: Parties: Judgments: Appeal and Error. Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) requires, in cases with multiple claims
or parties, an explicit adjudication with respect to all claims or parties
or, failing such explicit adjudication of all claims or parties, an express
determination that there is no just reason for delay of an appeal of an
order disposing of less than all claims or parties and an express direction
for the entry of judgment as to those adjudicated claims or parties.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Appeal dismissed.
Aaron F. Smeall and Timothy J. Buckley, of Smith, Slusky,
Pohren & Rogers, L.L.P., for appellant.
Terri M. Weeks, of Bowman & Krieger, for appellee.
- 288 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
HUNTINGTON GROUP V. J-TON CONTRACTORS
Cite as 31 Neb. App. 287
Moore, Riedmann, and Arterburn, Judges.
Riedmann, Judge.
INTRODUCTION
J-Ton Contractors, Inc. (J-Ton), appeals the order of the dis-
trict court for Lancaster County denying its motion to reinstate
and to set a trial date. We conclude that the order appealed
from was not a final order; accordingly, we dismiss the appeal
for lack of jurisdiction.
BACKGROUND
Huntington Group, L.L.C. (Huntington), entered into a ver-
bal contract with J-Ton, for J-Ton to remove an existing park-
ing lot and replace it with asphalt. On February 10, 2016,
Huntington filed a complaint alleging breach of contract and
negligence in J-Ton’s workmanship. On April 29, J-Ton filed
an answer and counterclaim, which it amended on December
26, 2018. Trial was scheduled to begin on February 13, 2019,
but on January 30, the parties stipulated to continue trial due to
a pending mediation.
According to our record, no further activity occurred until
February 19, 2021, at which time the district court issued an
order to show cause why the case should not be dismissed
for want of prosecution. The order stated, “Failure to comply
will result in this case being dismissed without further notice
or hearing.” (Emphasis supplied.) On March 31, the district
court entered an order of dismissal because no showing was
made in response to the prior order. The order stated that
“the Complaint filed herein is dismissed without prejudice
for want of prosecution.” (Emphasis supplied.) On May 12,
J-Ton filed a motion to reinstate and to set a trial date. The
motion alleged that the parties had conducted discovery, that
they were unsuccessful in mediation, and that the matter was
ready for trial. Following a hearing, a transcript of which is
not contained in our record, the court denied the motion. J-Ton
timely appealed.
- 289 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
HUNTINGTON GROUP V. J-TON CONTRACTORS
Cite as 31 Neb. App. 287
ASSIGNMENTS OF ERROR
J-Ton assigns, restated, that the district court erred in (1)
denying its motion to reinstate and set a trial date, (2) not rein-
stating this matter after issuing its order of dismissal, and (3)
not setting a trial date on its counterclaim.
STANDARD OF REVIEW
[1] A jurisdictional question that 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 inde-
pendent of the lower court’s decision. Capitol Construction v.
Skinner, 279 Neb. 419, 778 N.W.2d 721 (2010), overruled on
other grounds, McEwen v. Nebraska State College Sys., 303
Neb. 552, 931 N.W.2d 120 (2019).
ANALYSIS
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the appeal. See Green v. Seiffert, 304 Neb.
212, 933 N.W.2d 590 (2019). Appellate jurisdiction turns on
whether the order denying the motion to reinstate was a final
order under Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020).
An order is final for purposes of appeal under § 25-1902 if
it affects a substantial right and (1) determines the action and
prevents a judgment, (2) is made during a special proceeding,
or (3) is made on summary application in an action after judg-
ment is rendered. Fidler v. Life Care Centers of America, 301
Neb. 724, 919 N.W.2d 903 (2018).
However, in reviewing the denial of a motion to vacate or
to reinstate, the Nebraska Supreme Court has also instructed
that the basis of the motion must be considered. See Green
v. Seiffert, supra. In other words, when the motion to rein-
state a case does not introduce an “‘intervening new matter’”
and instead merely contends that the initial order dismissing
the case was erroneous, the appeal of an order denying that
motion is untimely if not filed within 30 days of the order
- 290 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
HUNTINGTON GROUP V. J-TON CONTRACTORS
Cite as 31 Neb. App. 287
initially dismissing the matter. See id. at 216, 933 N.W.2d at
593. See, also, McEwen v. Nebraska State College Sys., 303
Neb. 552, 931 N.W.2d 120 (2019); Capitol Construction v.
Skinner, supra.
Here, J-Ton’s motion for reinstatement was predicated on the
case being ready for trial. It did not identify any intervening
new matter; therefore, pursuant to Green, Capitol Construction,
and McEwen, the appeal would be untimely if the initial order
dismissing the complaint was a final, appealable order. We
find, however, that it was not.
The show cause order issued in February 2021 advised that
the matter had been pending without any action of record for a
period of 6 months or longer. The court directed Huntington to
respond within 30 days and warned that failure to do so “will
result in this case being dismissed without further notice or
hearing.” (Emphasis supplied.) The subsequent order of dis-
missal, however, dismissed the complaint without prejudice. It
made no mention of the pending counterclaim.
[4] The Supreme Court has “made it clear” that Neb. Rev.
Stat. § 25-1315(1) (Reissue 2016) requires, in cases with mul-
tiple claims or parties, an explicit adjudication with respect to
all claims or parties or, failing such explicit adjudication of all
claims or parties, an express determination that there is no just
reason for delay of an appeal of an order disposing of less than
all claims or parties and an express direction for the entry of
judgment as to those adjudicated claims or parties. Cattle Nat.
Bank & Trust Co. v. Watson, 293 Neb. 943, 953, 880 N.W.2d
906, 917 (2016).
In Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387
(2005), the district court dismissed the plaintiffs’ petition
against the defendant, but did not explicitly adjudicate the
defendant’s third-party claim against a third-party defendant.
The Supreme Court dismissed the appeal for lack of jurisdic-
tion because the district court did not expressly adjudicate the
third-party claim, nor did it make the express determination
- 291 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
HUNTINGTON GROUP V. J-TON CONTRACTORS
Cite as 31 Neb. App. 287
and the express direction required by § 25-1315(1). Malolepszy
v. State, supra.
Here, the district court dismissed only Huntington’s com-
plaint; it did not address J-Ton’s counterclaim. Unlike the
dismissals in Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590
(2019), and Capitol Construction v. Skinner, 279 Neb. 419,
778 N.W.2d 721 (2010), overruled on other grounds, McEwen
v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120
(2019), the dismissal of the complaint was not a final, appeal-
able order and J-Ton’s counterclaim remains pending. Because
the counterclaim has not yet been disposed of, there is no final
order for us to review.
CONCLUSION
Because we conclude we lack appellate jurisdiction, we dis-
miss the appeal.
Appeal dismissed.