THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IRWIN, Judge.
I. INTRODUCTION
Mervin Reese Photographers, Inc. (Mervin Reese), appeals a September 2011 order of the district court for Douglas County, Nebraska, purporting to dismiss Mervin Reese's negligence action against Countryside Village, Inc. We conclude that the district court had already dismissed Mervin Reese's complaint against All Purpose Utilities, Inc. (All Purpose), and Countryside Village in March 2009; had never effectively vacated that dismissal; and therefore lacked jurisdiction to enter the September 2011 order from which Mervin Reese now appeals. Accordingly, we dismiss the appeal.
II. BACKGROUND
This case presents a procedural morass that was challenging to unravel. Our unraveling of the morass results in the conclusion that the district court entered a final order dismissing the case in March 2009 and, despite actions of the parties to the contrary, never effectively vacated the dismissal or reinstated the case. The result is that now, after more than 3 years of litigation succeeding the court's effective dismissal, we must dismiss the appeal and declare the March 2009 dismissal to be final.
On April 23, 2008, Mervin Reese filed a complaint in the district court in which Mervin Reese alleged negligence on behalf of All Purpose and Countryside Village. The complaint includes a stamp indicating which district court judge the case had been assigned to (referred to hereinafter as "Judge `A'"). Countryside Village did not initially file a responsive pleading, despite being served with a summons on May 2. All Purpose filed an answer on May 30.
On January 26, 2009, the district court sent to counsel for Mervin Reese and All Purpose (the only parties who had then appeared or filed pleadings) a notice of the court's intent to dismiss the case for lack of progression on behalf of Mervin Reese. The court's notice indicated that the parties had 30 days to submit a certificate of readiness for trial, a proposed scheduling order, or a request for a scheduling conference, "or the above captioned case [would] be dismissed for lack of prosecution." The court's notice also indicated that a case dismissed for lack of progression could be reinstated by the court "only upon (1) the filing of a motion to vacate the dismissal... (2) a hearing before the judge... (3) [a] showing of good cause and the court's finding of good cause... and (4) the immediate filing of a certificate of readiness for trial or a joint proposed scheduling order."
On February 2, 2009, Mervin Reese filed a motion regarding discovery and requesting a scheduling hearing. Mervin Reese filed amended motions on February 4 and February 20.
On February 26, 2009, an order of dismissal on progression was signed by a second judge of the district court (hereinafter referred to as "Judge `B'"). The order, however, was not file stamped on February 26 and was actually not filed until March 6. The order indicated that "the above-captioned case" was being dismissed and indicated that notice of the dismissal was being sent to "counsel of record and/or pro se parties." Also on February 26, a journal entry was made indicating that notice that the case had been dismissed on February 26 for lack of progression had been sent to counsel for Mervin Reese and All Purpose. This journal entry does not include any signature of the trial court, and bears a file stamp indicating that it was not filed until March 5.
On March 2, 2009, the trial court made judge's notes indicating that the February 26 dismissal—which was not yet effective as a dismissal, having not been accomplished by a signed and file-stamped order—was being vacated and that the case was being reinstated. The record presented to us on appeal does not include any journal entry indicating this action; nonetheless, both Mervin Reese and Countryside Village represent in their briefs on appeal that such action was taken and that the parties and court all proceeded with the case being "reinstated."
Mervin Reese and All Purpose proceeded as if the case was, as of March 3, 2009, an active case. On March 3, a proposed scheduling order was filed. The proposed scheduling order bears the signature of Judge "A," as well as signatures of counsel for Mervin Reese and All Purpose. The proposed scheduling order established a trial date, as well as scheduling dates for discovery and amending pleadings.
As noted above, on March 5, 2009, a docket entry, bearing no signature of the trial court, was filed indicating that notice of a February 26 dismissal for lack of progression had been sent to counsel for Mervin Reese and All Purpose. On March 6, an order of dismissal bearing the signature of Judge "B" was filed. This order, being the first order concerning dismissal to bear the signature of the trial court and a file stamp, is the first order in our record that satisfies the requirements for a final order concerning dismissal. See Neb. Rev. Stat. § 25-1301 (Reissue 2008) (concerning rendition and entry of judgment).
Despite the March 6, 2009, filing of an order dismissing the case, Mervin Reese and All Purpose proceeded as if the case was still pending before the trial court. On July 15, 2010, an order was entered by Judge "A" granting All Purpose a directed verdict on Mervin Reese's claim. Mervin Reese unsuccessfully sought a new trial on the court's grant of directed verdict to All Purpose.
On June 21, 2010, Mervin Reese filed a motion seeking a default judgment against Countryside Village, which does not appear to have then entered any appearance or filed any responsive pleading. On October 6, an order was entered by Judge "A" granting Mervin Reese's motion for default judgment against Countryside Village.
On October 13, 2010, Countryside Village filed what appears to be its first entry and responsive pleading in the trial court, a motion to vacate the October 6 default judgment granted to Mervin Reese. In seeking to vacate the default judgment, Countryside Village affirmatively alleged that Mervin Reese's complaint had been dismissed on February 26, 2009, and that the case had not been effectively reinstated. Countryside Village affirmatively alleged that it had not been served by the court with the notice of intent to dismiss, the order dismissing the case, or the journal entry purporting to reinstate the case. Countryside Village alleged that it had bona fide defenses to Mervin Reese's claims against Countryside Village and urged the court to use its equity powers to set aside the default judgment.
On December 9, 2010, Countryside Village filed an amended motion to vacate the default judgment. In the amended motion, Countryside Village alleged that there had been a valid dismissal of Mervin Reese's complaint and that there had never been an order vacating the dismissal that qualified as having been properly rendered and entered pursuant to § 25-1301.
On March 7, 2011, Judge "A" entered an order vacating the October 6, 2010, default judgment entered against Countryside Village. In the order, the trial court recounted the procedural history of the case, including recounting that the case "was dismissed on February 26, 2009, by written order signed by [Judge "B" and that the] order was stamped and filed... on March 6, 2009." The court recounted that the case "was reinstated by notation on a docket entry" on March 2. The court ultimately concluded that "the case was never properly reinstated because there was no order reinstating the case that was signed by a judge and file stamped and dated by the court." The court concluded, therefore, that "everything that occurred after February 26, 2009[,] is null and void because the court lacked jurisdiction over the case." Putting aside the court's emphasis on February 26, 2009, instead of March 6, 2009, the court's conclusion was that the case had been properly dismissed and had never been properly reinstated; the effect of this finding would have been that, as of the effective date of dismissal (March 6, 2009), Mervin Reese's action against All Purpose and Countryside Village would no longer be pending.
The court then engaged in an analysis of whether Countryside Village was entitled to have the action reinstated under the court's equity powers. The court did not address why Countryside Village would have an interest in reinstating an action against it that had been dismissed for lack of Mervin Reese's progression. It is clear from a reading of Countryside Village's motion to vacate the subsequent default judgment and the amended motion to vacate the default judgment that Countryside Village was asserting the default judgment was improper, in part, precisely because the case against it had previously been dismissed and never properly reinstated. It is not clear upon what theory or basis the trial court believed that Countryside Village had an interest in reinstating an action against itself that had been dismissed in favor of itself.
Nonetheless, the court engaged in an analysis of whether, under its equity powers, it could reinstate the case. The court somehow concluded that Countryside Village was entitled to "the relief" of having the case against itself reinstated. The court then specifically concluded that the case was "reinstated as of February 26, 2009."
On March 14, 2011, All Purpose filed a motion seeking clarification of the effect on its directed verdict of the court's March 7 order reinstating the case as of February 26, 2009. All Purpose alleged that it was unclear from the court's March 7 order what effect was intended on the directed verdict that had been granted to All Purpose, purportedly dependent upon what the court had now found to have been an ineffective reinstatement of the case back in 2009.
On April 24, 2011, Countryside Village filed a motion to dismiss. In the motion, Countryside Village alleged that Mervin Reese's complaint had been dismissed on March 6, 2009, when an order of dismissal was properly entered and rendered as required by § 25-1301. Countryside Village alleged that Mervin Reese had never taken the required steps to properly have the March 6 dismissal vacated and the case reinstated. Countryside Village also alleged that equity should not be invoked to the benefit of Mervin Reese or All Purpose to reinstate the case more than 2 years later.
On September 20, 2011, Judge "A" entered the order now appealed from. In the order, the court indicated that it had "reviewed the lengthy, and somewhat convoluted, procedural history of this case." The court then held that it was "satisfied that [Countryside Village's] motion to dismiss must be granted." The court provided no further reasoning or insight into its decision, but ordered that the case "be dismissed as to Countryside Village... the only remaining defendant herein." The court did not indicate what impact, if any, its holding was intended to have regarding All Purpose or the prior directed verdict granted in favor of All Purpose.
Mervin Reese appealed to this court. Countryside Village sought summary dismissal, which we denied in favor of authoring an opinion on the jurisdictional question presented. All Purpose has not filed a brief and, instead, filed a letter with the Clerk of the Supreme Court indicating All Purpose's opinion that the "issues and arguments presented in [Mervin Reese's brief on appeal] do not involve [All Purpose] or the district court's action that granted [All Purpose] a directed verdict." (Emphasis in original.)
III. ASSIGNMENT OF ERROR
Mervin Reese's sole assignment of error on appeal is that the district court "erred in granting [the] motion to dismiss and in dismissing the case."
IV. ANALYSIS
Mervin Reese appeals the district court's dismissal of the case. We find that the district court effectively dismissed Mervin Reese's complaint when a signed order of dismissal was filed and file stamped on March 6, 2009, and that no order was validly entered and rendered subsequently to vacate the dismissal and reinstate the case after March 6, 2009. As such, we dismiss the appeal.
Under § 25-1301, a judgment is the final determination of the rights of the parties in an action. Section 25-1301 sets forth two ministerial requirements for a final judgment. Kilgore v. Neb. Dept. of Health & Human Servs., 277 Neb. 456, 763 N.W.2d 77 (2009); State v. Brown, 12 Neb.App. 940, 687 N.W.2d 203 (2004). The first, found at § 25-1301(2), is rendition of the judgment, defined as the act of the court or a judge thereof "in making and signing a written notation of the relief granted or denied in an action." Kilgore v. Neb. Dept. of Health & Human Servs., supra; State v. Brown, supra. The second ministerial step for a final judgment, found at § 25-1301(3), is entry of the judgment, defined as the act of the clerk of the court placing "the file stamp and date upon the judgment." Kilgore v. Neb. Dept. of Health & Human Servs., supra; State v. Brown, supra. In short, final orders must be signed by the judge as well as file stamped and dated by the clerk. Id.
In the present case, the district court dismissed Mervin Reese's complaint on March 6, 2009. Although the record indicates that Judge "B" signed an order of dismissal on February 26, such signature of the written order served only as rendition of the judgment and did not result in a final judgment. The judgment was not final and effective until the clerk entered it by filing and file stamping it on March 6. Contrary to Mervin Reese's assertion on appeal, the act of the clerk in entering the judgment by file stamping it was not merely "to complete the record" or without "substantive effect." Brief for appellant at 8. Rather, the clerk's act of entering the judgment by file stamping it had the very real substantive effect of making the judgment a final order.
We reject Mervin Reese's assertion that the complaint was dismissed on February 26, 2009, and that the dismissal was vacated on March 2. First, as noted above, on February 26, the court merely rendered its judgment; this was not an effective final dismissal until entered by the clerk with a file stamp on March 6. Thus, the dismissal could not properly have been vacated on March 2 because the dismissal had not yet effectively happened on March 2.
Second, the record presented on appeal does not reveal that the dismissal—which had not yet taken effect—was vacated on March 2, 2009. Contrary to Mervin Reese's assertion that the court vacated its dismissal "as a result of the rendition and entry of the Order dated March 2," the record presented on appeal does not include any written order signed by the court and file stamped on March 2. The judge's notes from Judge "A" dated March 2, 2009, which indicate that the case was being "reinstated," are in judge's notes only, are not signed by the judge, and do not represent a properly rendered order. Moreover, they do not include a file stamp to create a properly entered order. They lack the ministerial requirements to be an effective final order of reinstatement, in addition to suffering from the flaw of predating the effective final order of dismissal by 4 days.
As a result, as of March 6, 2009, the district court had rendered and entered a final order dismissing Mervin Reese's complaint. Mervin Reese did not file a timely appeal from that dismissal order, Mervin Reese did not seek to have that dismissal vacated after March 6, and the court lacked jurisdiction to proceed further. The court lacked jurisdiction to hear a trial on All Purpose's motion for directed verdict in July 2009, lacked jurisdiction to hear a trial on Mervin Reese's motion for default judgment against Countryside Village in October 2009, and lacked jurisdiction to hear Countryside Village's motion to vacate the default judgment.
We also find that the district court's order of March 7, 2011, did not effectively vacate the March 6, 2009, dismissal. First, as noted, the court lacked jurisdiction to have entered a default judgment against Countryside Village and lacked jurisdiction to hear a motion to vacate that default judgment. Additionally, the court's analysis specifically recognized that the case had been dismissed in 2009 and that it had not been properly reinstated by rendition and entry of a final order vacating the dismissal. The court's subsequent analysis of whether Countryside Village was entitled to have the 2009 dismissal vacated is perplexing, in that Countryside Village never asked to have the dismissal vacated and Countryside Village had no reason to request vacation of a dismissal that benefited it. Finally, even to the extent the court ultimately concluded that there was some equitable basis for considering vacation of the dismissal, the court ordered the case reinstated as of February 26, 2009, which was more than 1 week prior to the effective date of the court's dismissal of March 6. Even assuming, for the sake of argument, that the district court had jurisdiction to consider granting "relief" to Countryside Village that was never requested by Countryside Village in its motion nor logically in Countryside Village's interest to seek, the court succeeded only in "reinstating" the case to a point in time when the case had not yet been dismissed. The court's order reinstating the case to February 26 had no effect on the March 6 final order of dismissal.
When the district court entered the order Mervin Reese appeals from, on September 20, 2011, the court did not provide any analysis or insight into its reasoning. The court concluded that it was "satisfied" that Countryside Village's motion to dismiss must be granted. In reality, the court lacked jurisdiction to dismiss the case in September 2011 because the case had been properly dismissed by a rendered and entered order of dismissal on March 6, 2009, and no appeal was taken from that dismissal.
As a result of the foregoing, Mervin Reese's complaint was dismissed as of March 6, 2009. As of that date, no claim remained against All Purpose or against Countryside Village, and the district court lacked jurisdiction to take any subsequent action, including the entry of a directed verdict in favor of All Purpose in July 2010, the entry of a default judgment in favor of Mervin Reese in October 2010, the entry of an order vacating the default judgment in March 2011, and the entry of an order purporting to dismiss the already dismissed case again in September 2011. No timely appeal having been taken from the March 6, 2009, dismissal, we dismiss the present appeal.
APPEAL DISMISSED.
