Charles Sargent Irrigation, Inc. v. Pohlmeier

27 Neb.App. 229

929 N.W.2d 527

CHARLES SARGENT IRRIGATION, INC., doing business as Sargent Drilling, appellee,

v.Mary Martha POHLMEIER, appellant.

No. A-17-1231.

Court of Appeals of Nebraska.

Filed May 14, 2019

Travis Penn, of Penn Law Firm, L.L.C., Omaha, for appellant.

Charles W. Campbell, of Angle, Murphy & Campbell, P.C., L.L.O., York, for appellee.

Moore, Chief Judge, and Riedmann and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

As a discovery sanction, the district court for Fillmore County entered a default judgment against Mary Martha Pohlmeier and in favor of Charles Sargent Irrigation, Inc., doing business as Sargent Drilling (Charles Sargent). The court included prejudgment interest in the damages awarded, and after Pohlmeier’s land was sold to satisfy the judgment, the court denied Pohlmeier’s objection to the confirmation of the sale. We affirm the decisions related to the default judgment but lack jurisdiction to address issues related to the confirmation of the sale.

BACKGROUND

In 2014, Pohlmeier entered into a written contract with Charles Sargent for the drilling of wells and associated work on Pohlmeier’s property. Certain work was completed, but Pohlmeier failed to pay as agreed; thus, Charles Sargent commenced this action seeking to recover payment from Pohlmeier. In response to Charles Sargent’s amended complaint, Pohlmeier filed an answer and counterclaim.

In February 2016, Charles Sargent filed a motion for sanctions. The motion and attached affidavit alleged that on December 4, 2015, Charles Sargent had served interrogatories and requests for production of documents on Pohlmeier by sending them to her counsel and that Pohlmeier had requested additional time within which to respond. Pohlmeier’s counsel then moved to withdraw, and on January 11, 2016, the district court granted counsel’s motion to withdraw and allowed Pohlmeier until February 4 to serve her discovery responses. Pohlmeier never responded to the discovery requests.

The court held a hearing on the motion for sanctions, and neither Pohlmeier nor her counsel appeared. The court entered a written order on March 10, 2016, stating that notice of the hearing had been provided to Pohlmeier at her last known address. Based on Pohlmeier’s failure to respond to discovery, the court found that Charles Sargent was entitled to sanctions. The court therefore entered a default judgment in favor of Charles Sargent against Pohlmeier on the amended complaint and awarded judgment in the amount of $ 27,498.38 plus interest in the amount of $ 8,013.25.

As a result of the default judgment, a writ of execution was issued for Pohlmeier’s property, and the record shows that Pohlmeier was personally served with the writ on August 10, 2016. A sale of the property was held on October 3, and the property was sold. On October 6, Charles Sargent filed a motion to confirm the sale in the district court. On November 1, Pohlmeier, represented by new counsel, filed an objection to the confirmation of sale and a motion to vacate the default judgment. At a hearing on the motions, Pohlmeier’s counsel argued that the default judgment was not a final judgment because it failed to dispose of Pohlmeier’s counterclaim.

In an order entered January 5, 2017, the district court recognized that the March 10, 2016, order was not final because of the outstanding counterclaim. The court therefore modified the March 10 order, striking the counterclaim and reiterating that default judgment was entered in favor of Charles Sargent. The court did not rule on the objection to the confirmation of sale or the motion to vacate at that time.

Thereafter, Pohlmeier filed a motion to alter or amend the January 5, 2017, order. At a hearing on that motion, Charles Sargent recognized that the sale could not be confirmed because the execution was issued upon a nonfinal judgment; thus, a new sale would have to take place. The court issued a written order on October 26 overruling the motion to vacate and the objection to the confirmation of sale. No order was entered on the motion to confirm the sale, nor did Charles Sargent withdraw the motion. Pohlmeier appeals from that order.

ASSIGNMENTS OF ERROR

Pohlmeier assigns, restated, that the district court (1) lacked authority to modify the March 10, 2016, judgment on January 5, 2017; (2) erred in overruling her objection to the confirmation of sale; (3) erred in issuing sanctions improperly and failing to set aside those sanctions; and (4) erred in awarding prejudgment interest, because the claim was not liquidated.

STANDARD OF REVIEW

The decision to vacate an order at any time during the term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if it is shown that the district court abused its discretion. In re Change of Name of Whilde , 298 Neb. 510, 904 N.W.2d 707 (2017). An abuse of discretion occurs when the trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

The determination of an appropriate discovery sanction rests within the discretion of the trial court, and an appellate court will not disturb it absent an abuse of discretion. Hill v. Tevogt , 293 Neb. 429, 879 N.W.2d 369 (2016).

ANALYSIS

Modification of Judgment.

In her first assignment of error, Pohlmeier argues that the district court lacked the authority to modify the March 10, 2016, judgment on January 5, 2017, because the modification was made out of term and without a motion filed by either party within 6 months of the original judgment. We disagree.

At the outset, we note Charles Sargent asserts that the January 5, 2017, order was a final judgment disposing of all of the claims of the case and that because Pohlmeier does not assign any errors related to that order, she has waived any challenge to that order on appeal. The January 5 order struck Pohlmeier’s counterclaim but did not rule on her motion to vacate the default judgment, as evidenced by Pohlmeier’s allegations contained in her motion to alter or amend. Thus, because the motion to vacate remained outstanding, the January 5 order was not a final order from which Pohlmeier could appeal. The district court did not rule on the motion to vacate until October, that ruling being the order from which this appeal was taken. The present appeal is therefore Pohlmeier’s first opportunity to raise issues related to the January 5 order. We now turn to the merits of Pohlmeier’s argument.

In a civil case, a court has inherent power to vacate or modify its own judgments at any time during the term at which those judgments are pronounced, and such power exists entirely independent of any statute. In re Change of Name of Whilde, supra . The inherent power of a district court to vacate or modify its judgments or orders during term may also be exercised after the end of the term, upon the same grounds, upon a motion filed within 6 months after the entry of the judgment or order. Neb. Rev. Stat. § 25-2001 (Reissue 2016). Unless otherwise provided by order of the district court, a term of court begins on January 1 of a given year and ends on December 31 of that same year. Andersen v. American Family Mut. Ins. Co. , 249 Neb. 169, 542 N.W.2d 703 (1996).

Rules of Dist. Ct. of First Jud. Dist. 1-1 (rev. 2005) allows the judge in each county to set the terms of court, and we have found nothing in the record to reflect that the district court fixed a term of court other than the calendar year. Therefore, the district court in this case had the inherent power to modify a judgment or order during the same calendar year in which it was filed.

Pohlmeier argues that because the original order was entered in March 2016 and the modification order was filed in January 2017, the modification was made out of term. The Nebraska Supreme Court addressed this issue in Moackler v. Finley , 207 Neb. 353, 299 N.W.2d 166 (1980). There, the trial court entered a default judgment against the defendant in February 1979. On June 26, the defendant moved to set aside and vacate the default judgment. The trial court’s term ended on June 29. Thus, the order setting aside and vacating the default judgment filed on July 12 was entered in the new term of court.

On appeal, the plaintiff argued that the trial court abused its discretion when it vacated the default judgment in a term of court beyond that in which the judgment was entered. The Supreme Court noted that a court has inherent power to vacate or modify its own judgments at any time during the term in which those judgments are pronounced, and such power exists entirely independent of any statute. Id. The court also observed that it is equally clear that § 25-2001 specifies in which instances the district court has the power to vacate or modify its own judgments or orders after the term has been adjourned. Moackler v. Finley, supra . Thus, the issue before the court was whether the district court loses its jurisdiction to vacate an order when the term ends, if the motion to vacate was made during the term in which the judgment was rendered and none of the grounds for vacation exist pursuant to § 25-2001. Moackler v. Finley, supra . In resolving that question, the Supreme Court held that the district court retains the authority to rule upon a motion to vacate if the motion was made within the original term. Id. In reaching this decision, the Supreme Court relied upon Neb. Rev. Stat. § 24-310 (Reissue 2016), which provided then, as it does now, that upon any final adjournment of the court, all business not otherwise disposed of shall stand continued generally. The Supreme Court determined that once a motion is made and has not yet been ruled upon, the motion is pending, and when the term is adjourned, that pending motion cannot be other than a matter " ‘not otherwise disposed of.’ " Moackler v. Finley , 207 Neb. at 357, 299 N.W.2d at 168. Therefore, the court...