Cerny v. Todco Barricade Co.

733 N.W.2d 877

273 Neb. 800

Melvin R. CERNY and Linda Cerny, Appellants and Cross-Appellees, and Geotechnical Services, Inc., a Nebraska Corporation, Appellee, v. TODCO BARRICADE COMPANY, Appellee and Cross-Appellant.

No. S-05-877.

Supreme Court of Nebraska.

June 29, 2007.

James D. Sherrets and Theodore R. Boecker, of Sherrets & Boecker, L.L.C., Omaha, for appellants and appellee Geotechnical Services, Inc.

Thomas J. Culhane, of Erickson & Sederstrom, P.C., Omaha, for appellee Todco Barricade Company.

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

GERRARD, J.

Melvin R. Cerny and Linda Cerny appeal from a partial summary judgment order of the district court, which entered judgment against some of their claims, but reserved one claim for trial. The court certified its partial summary judgment as a final judgment pursuant to Neb.Rev. Stat. § 25-1315(1) (Cum. Supp. 2006), but we conclude that the court abused its discretion in doing so. We vacate the court's certification of final judgment and dismiss the appeal.

BACKGROUND

Melvin Cerny was injured in a traffic accident in Omaha, Nebraska, on August 7, 1998. At the time, Interstate 680 was under reconstruction, and Melvin was driving on one of the temporary entrance ramps that had been built to facilitate the project. Melvin slowed his vehicle in order to merge with traffic on Interstate 680 and was struck from behind by a vehicle driven by Curt Coffman. Melvin was seriously injured and suffered permanent disability. Generally summarized, the Cernys claim that the design and implementation of the temporary entrance ramp was a proximate cause of the accident.

The project, including the temporary ramp, was planned by the State Department of Roads (the State). Hawkins Construction Company (Hawkins) was the State's general contractor with respect to the temporary entrance ramp. Todco Barricade Company (Todco), the defendant in this action, was a subcontractor hired by Hawkins and approved by the State to perform work on the temporary entrance ramp.

In other proceedings, Melvin and his wife, Linda (hereinafter collectively Cerny), sued Coffman and his wife, Tammy Coffman (collectively Coffman). Cerny also sued Hawkins and the State. Cerny settled his claims with Coffman, Hawkins, and the State; as part of the settlement, each of those defendants assigned Cerny their claims for contribution and indemnity from Todco. Cerny brought the instant case against Todco as assignee of those claims. In other words, this case involves six claims—a claim for contribution and a claim for indemnity on behalf of each of the three assignors.

Todco moved for summary judgment, which was granted in part by the district court. With respect to the contribution claims, the court found it was undisputed that Todco's alleged negligence, in the placement of temporary signs and barricades on the entrance ramp, was done at the express direction of Hawkins or the State. The court reasoned that Hawkins and the State were estopped from seeking contribution from Todco for acts performed at their direction, and entered judgment against Cerny on those assigned claims. Because that reasoning did not extend to Coffman, the court denied summary judgment on Coffman's assigned claim for contribution.

The court entered judgment against Cerny on all of the assigned indemnity claims. The court reasoned that Coffman was not contractually obligated to indemnify Todco, and a common-law indemnity claim failed because Coffman was actively negligent. The court concluded that under Todco's contract with Hawkins, Todco was required to indemnify Hawkins and the State only for damages resulting from breach of the contract, and Todco had not breached the contract. Although Todco deviated from the original plans for the entrance ramp without receiving a written change order, the court concluded that Hawkins and the State had waived any such requirement under the contract and had caused Todco to deviate from the plans by directing it to do so. In short, the court concluded that Hawkins and the State were estopped from seeking contribution from Todco for a breach of contract that they ordered, approved, and accepted.

After entering the partial summary judgment described above, the court entered an order, pursuant to § 25-1315(1), stating that there was no just reason for delay and directing the entry of final judgment with respect to the claims against which summary judgment had been entered. The court's order did not articulate the basis for this conclusion. The court further concluded that the remaining claim, Coffman's assigned claim for contribution from Todco, was an equitable claim that would be tried to the court, and not to a jury. Cerny appeals.

ASSIGNMENTS OF ERROR

Cerny assigns, consolidated, that the court erred in (1) admitting portions of the affidavits offered by Todco at the summary judgment hearing, (2) concluding Todco was entitled to partial summary judgment on the indemnity and contribution claims assigned by Hawkins and the State, and (3) finding Cerny was not entitled to a jury trial on the Coffman contribution claim. Although Cerny also assigned error to the partial summary judgment on the Coffman indemnity claim, the argument in Cerny's appellate brief does not discuss that issue, so we do not discuss it either.¹ On cross-appeal, Todco assigns that the court erred in denying Todco's motion for summary judgment on the Coffman contribution claim because (1) Coffman is not entitled to contribution and (2) Coffman's contribution claim should have been decided in the underlying lawsuit.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.² A trial court's decision to certify a final judgment pursuant to § 25-1315(1) is reviewed for an abuse of discretion.³

ANALYSIS

LACK OF FINAL ORDER ON COFFMAN CONTRIBUTION CLAIM

Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.⁴ In this case, Todco argues that Cerny's assignment of error with respect to a jury trial on the Coffman contribution claim is not properly presented on appeal, because it was not part of the partial summary judgment that the district court certified for appeal under § 25-1315(1). Our inquiry into jurisdiction, however, is broader than Todco's argument. An appellate court, on its own motion, may examine and determine whether jurisdiction is lacking as the result of a procedural defect which prevents acquisition of appellate jurisdiction.⁵ The procedural posture of this case presents several issues arising under § 25-1315(1).

Section 25-1315(1) provides that

[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Section 25-1315 permits a judgment to become final only under the limited circumstances set forth in the statute.⁶ By its terms, § 25-1315(1) is implicated only where multiple causes of action are presented or multiple parties are involved, and a final judgment is entered as to one of the parties or causes of action.⁷

The term "final judgment" as used in § 25-1315(1) is the functional equivalent of a "final order" within the meaning of Neb.Rev.Stat. § 25-1902 (Reissue 1995). Thus, a "final order" is a prerequisite to an appellate court's obtaining jurisdiction of an appeal initiated pursuant to § 25-1315(1).⁸ With the enactment of § 25-1315(1), one may bring an appeal pursuant to such section only when (1) multiple causes of action or multiple parties are present, (2) the court enters a "final order" within the meaning of § 25-1902 as to one or more but fewer than all of the causes of action or parties, and (3) the trial court expressly directs the entry of such final order and expressly determines that there is no just reason for delay of an immediate appeal.⁹ In other words, to be appealable, an order must satisfy the final order requirements of § 25-1902 and, additionally, where implicated, § 25-1315(1).¹⁰

Neither Cerny's assignment of error with respect to the denial of a jury trial on the Coffman contribution claim nor Todco's cross-appeal with respect to the denial of its motion for summary judgment on the Coffman contribution claim is properly appealable pursuant to §§ 25-1902 and 25-1315(1). The district court did not enter a "final judgment," i.e., final order, with respect to the Coffman contribution claim. The district court's order directing final judgment pursuant to § 25-1315(1) expressly directed that "the summary judgments previously entered herein" should be considered final judgments, but did not direct a final judgment with respect to the Coffman contribution claim.¹¹ Nor could it have done so.

A denial of a motion for summary judgment is an interlocutory order, not a final order, and therefore not appealable.¹² The court's denial of a jury trial did not determine the action and prevent a judgment, was not made during a special proceeding, and was not made on summary application in an action after judgment had been rendered.¹³ Nor do the issues raised on appeal with...