Woodcock v. Navarrete-James , 26 Neb. Ct. App. 809 ( 2019 )

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WOODCOCK v. NAVARRETE-JAMES
Cite as 26 Neb. Ct. App. 809
Tara and James Woodcock, husband and wife, and
Gary and M artha Ellen Dimmitt, husband
and wife, appellants, v. A nthony
Navarrete-James, appellee.
___ N.W.2d ___
Filed January 29, 2019. No. A-17-722.
1. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the
pleadings is properly granted when it appears from the pleadings that
only questions of law are presented.
2. Motions to Vacate: Appeal and Error. In reviewing a trial court’s
action in vacating or refusing to vacate a judgment or order, an appellate
court will uphold and affirm the trial court’s action in the absence of an
abuse of discretion.
3. Pleadings: Proof: Dismissal and Nonsuit. A motion seeking dismissal
of a complaint for failure to state a cause of action should be granted
only if it appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him or her to relief.
4. Courts: Judgments: Time. After the final adjournment of the term of
court at which a judgment has been rendered, the court has no authority
or power to vacate or modify the judgment except for the reasons stated
and within the time limited in Neb. Rev. Stat. § 25-2001 (Reissue 2016).
5. Attorney and Client: Negligence: Judgments: Time. Lack of diligence
or negligence of counsel is not an unavoidable casualty or misfortune in
the context of Neb. Rev. Stat. § 25-2001(4)(f) (Reissue 2016) entitling
the applicant to vacation of judgment after adjournment of term at which
judgment has been rendered.
6. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the
pleadings is properly granted when it appears from the pleadings that
only questions of law are presented.
7. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
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WOODCOCK v. NAVARRETE-JAMES
Cite as 26 Neb. Ct. App. 809
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Reversed and remanded for further
proceedings.
James C. Bocott, of Law Office of James C. Bocott, P.C.,
L.L.O., for appellants.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellee.
Pirtle, R iedmann, and Bishop, Judges.
Per Curiam.
INTRODUCTION
Tara and James Woodcock, husband and wife, and Gary and
Martha Ellen Dimmitt, husband and wife (collectively appel-
lants), appeal from an order of the district court for Lincoln
County dismissing their amended complaint seeking to vacate
or modify a prior order that dismissed appellants’ personal
injury case against Anthony Navarrete-James and Yolanda
Sanchez. Based on the reasons that follow, we reverse, and
remand for further proceedings.
BACKGROUND
On June 20, 2009, appellants were injured as a result of a
motor vehicle accident caused by Navarrete-James’ negligence
in failing to stop at a red light. Appellants hired an attorney
and filed a lawsuit in the district court for Lincoln County,
case No. CI 13-349, against Navarrete-James and Sanchez.
Appellants believed their attorney was doing what was nec-
essary to pursue the matter and represent their interests. In
November 2015, appellants learned that their lawsuit had been
dismissed on September 3 for failure of their attorney to fol-
low the court’s orders on various motions to compel discovery
requests. On December 31, appellants’ attorney filed a motion
to reinstate the dismissed lawsuit, and on March 17, 2016, the
district court denied the motion. On March 25, appellants filed
a motion to alter or amend the judgment or, alternatively, to
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vacate and set aside the March 17 order. On April 27, the court
entered an order reinstating appellants’ case.
Navarrete-James and Sanchez filed a motion to vacate
the court’s April 27, 2016, order, which had reinstated the
case. Upon further consideration, the court decided that its
September 3, 2015, order (dismissing appellants’ personal
injury action) was final and disposed of all issues in the case.
The court further determined that because it was a final order,
and because the term of the court had already ended before
appellants filed their March 25, 2016, motion to alter or amend
the judgment, the court had no authority or power to vacate or
modify the judgment except for the reasons stated in Neb. Rev.
Stat. § 25-2001 (Reissue 2016). The court found that none of
the statutory reasons for allowing a modification beyond the
term identified in § 25-2001 were present, and on August 1,
the court ordered that its April 27 order was null and void, and
dismissed case No. CI 13-349 without prejudice. Appellants
appealed the August 1 order, but dismissed the appeal before it
was submitted to this court.
Appellants then filed a new action in the district court for
Lincoln County, case No. CI 16-648, pursuant to Neb. Rev.
Stat. § 25-2002 (Reissue 2016), which provides in relevant
part: “The proceedings to vacate or modify the judgment or
order on the grounds mentioned in subsection (4) of section
25-2001 shall be by complaint, setting forth the judgment or
order, the grounds to vacate or modify it, and the defense to
the action, if the party applying was defendant.” The amended
complaint alleged two “causes of action.” The first alleged
that their personal injury case should be reinstated based on
§ 25-2001(4)(f), and the second alleged that they were entitled
to equitable relief. Appellants claimed they were unaware
their attorney had failed to comply with discovery, they were
repeatedly reassured that their case was progressing satisfacto-
rily, they were completely unaware their lawsuit was in jeop-
ardy of being dismissed, and they were never advised of any
problems or impending deadlines. Appellants also stated that
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their attorney suffered multiple health and family problems in
2014 and 2015, which he claimed impacted his ability to dili-
gently pursue appellants’ personal injury lawsuit.
With regard to the second “cause of action,” the amended
complaint stated that if the court determined appellants had no
remedy under § 25-2001(4)(f), they had no adequate remedy at
law and it would be necessary for the court to use its indepen-
dent and concurrent equitable jurisdiction to vacate the court’s
March 17, 2016, order.
Navarrete-James filed a motion for judgment on the plead-
ings. At the hearing on the motion, appellants acknowl-
edged that Sanchez had not been served within 6 months of
the filing of the complaint as required by Neb. Rev. Stat.
§ 25-517.02 (Reissue 2016). Accordingly, the district court
dismissed Sanchez from the case and dismissed the case
against her without prejudice. Appellants do not contest this
decision in their appeal.
Following the hearing, the trial court found that appel-
lants’ amended complaint was properly before it pursuant
to § 25-2002, but that appellants had failed to state a claim.
The court granted Navarrete-James’ motion for judgment on
the pleadings and dismissed the case with prejudice as to
Navarrete-James. The court found, as it had already held in
case No. CI 13-349, that none of the statutory reasons for
allowing a modification or vacation beyond the term identified
in § 25-2001 were present. It specifically found that appellants
did not meet the statutory condition for reinstatement under
§ 25-2001(4)(f), as they alleged. The court also concluded
that it could not apply its equity powers to reinstate case No.
CI 13-349 because “[appellants] have tried to avail themselves
of the statutory remedy, and . . . equity will not lie where there
is a statutory remedy.”
ASSIGNMENTS OF ERROR
Appellants assign that the trial court erred by (1) dismissing
their amended complaint for failure to state a cause of action
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and (2) concluding there was no equitable basis for relief
because they had an adequate remedy at law.
STANDARD OF REVIEW
[1] A motion for judgment on the pleadings is properly
granted when it appears from the pleadings that only questions
of law are presented. In re Trust Created by Hansen, 274 Neb.
199, 739 N.W.2d 170 (2007).
[2] In reviewing a trial court’s action in vacating or refusing
to vacate a judgment or order, an appellate court will uphold
and affirm the trial court’s action in the absence of an abuse of
discretion. See In re Estate of West, 226 Neb. 813, 415 N.W.2d
769 (1987).
ANALYSIS
[3] Appellants contend the district court erred by dismiss-
ing their amended complaint on the pleadings because there
were issues of fact which required resolution. A motion seek-
ing dismissal of a complaint for failure to state a cause of
action should be granted only if it appears beyond doubt that
the plaintiff can prove no set of facts which would entitle
him or her to relief. Dennes v. Dunning, 14 Neb. Ct. App. 934,
719 N.W.2d 737 (2006). The trial court found that appellants
could prove no set of facts under § 25-2001(4)(f) which would
allow the court to vacate its March 17, 2016, order in case No.
CI 13-349 and reinstate their personal injury action. However,
we conclude there are issues of fact yet to be determined under
the applicable legal principles, as discussed next.
[4] Our law is well settled that after the final adjournment of
the term of court at which a judgment has been rendered, the
court has no authority or power to vacate or modify the judg-
ment except for the reasons stated and within the time limited
in § 25-2001. See Emry v. American Honda Motor Co., 214
Neb. 435, 334 N.W.2d 786 (1983). Appellants’ first “cause of
action” in their amended complaint sought reinstatement of
their personal injury case based on § 25-2001, specifically sub-
section (4)(f). Section 25-2001(4) provides: “A district court
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may vacate or modify its own judgments or orders after the
term at which such judgments or orders were made . . . (f) for
unavoidable casualty or misfortune, preventing the party from
prosecuting or defending . . . .”
The unavoidable casualty or misfortune appellants allege
is based on the actions of their former attorney who failed to
respond to discovery even after being warned that the case
would be dismissed if appellants did not respond to the dis-
covery. Appellants claim that their former attorney did not
forward copies of pleadings to them, but repeatedly reas-
sured them that their case was progressing satisfactorily. And
despite being in contact with their attorney, the attorney never
advised them of any problems or impending deadlines; they
were completely unaware their lawsuit was in jeopardy of
being dismissed.
[5] The rule is well-established in Nebraska that lack of dili-
gence or negligence of counsel is not an unavoidable casualty
or misfortune in the context of § 25-2001(4)(f) entitling the
applicant to vacation of judgment after adjournment of term
at which judgment has been rendered. See, Emry v. American
Honda Motor Co., supra; Shipley v. McNeel, 149 Neb. 793,
32 N.W.2d 636 (1948); Lyman v. Dunn, 125 Neb. 770, 252
N.W. 197 (1934). Relying on Emry v. American Honda Motor
Co., supra, the trial court held that “[a]lthough the negli-
gence of counsel was a misfortune, it was not necessarily
unavoidable, and . . . it did not prevent the [appellants] from
prosecuting their case so as to come under § 25-2001(4)(f).”
Appellants argue that the court’s reliance on Emry was mis-
placed because it can be distinguished from the present case.
We agree.
In Emry, plaintiff was represented by an attorney in Omaha,
Nebraska, and two partners from a law firm in Minnesota.
Plaintiff’s attorney did not respond to defendants’ discovery
requests, and the court issued a second order to show cause
why the case should not be dismissed. During the period of
inaction that led to the second show cause order, plaintiff’s
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principal attorney in Minnesota died in July 1978 and his
partner began to distribute some of his cases to other attorneys
and asked an Omaha attorney to handle plaintiff’s case. The
partner forwarded plaintiff’s file to the Omaha attorney in
August 1979. The Omaha attorney did not accept representa-
tion until July 1980, and at that time, he found out the case
had been dismissed in May. He then filed a petition to vacate
the dismissal based upon § 25-2001, which the trial court
granted, thereby reinstating plaintiff’s products liability case.
Defendants appealed.
On appeal, the Nebraska Supreme Court noted that there
was confusion as a result of the Minnesota attorney’s death, but
that nothing was done to move the case forward from the time
of his death in 1978 until the second order to show cause was
entered in 1980. The court held that the attorney’s death prob-
ably was an unavoidable casualty or misfortune, but the death
did not prevent plaintiff from prosecuting his claim. The court
further stated:
It would seem that 2 years was certainly a long enough
time for the confusion resulting from [the attorney’s]
death to subside. Even if there were lingering confusion
as to who was handling the case, the respective attorneys
might have at least recognized that there was confusion
and governed themselves accordingly. We believe that
this appeal could have easily been avoided; for example,
if there had been formal appearances and withdrawals of
the attorneys of record.
Emry v. American Honda Motor Co., 214 Neb. 435, 444,
334 N.W.2d 786, 792 (1983) (emphasis in original). The
court then cited the rule that lack of diligence or negligence
of counsel is not an unavoidable casualty or misfortune.
Certainly, the record before us would indicate that some of
appellants’ former attorney’s actions may be characterized as
lack of diligence or negligence. However, other actions by
the attorney may rise to the level of intentional misstatements
or misrepresentations or dishonesty; such actions have been
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viewed differently when considering unavoidable casualty
or misfortune.
Appellants cite us to the case of Anthony & Co. v. Karbach,
64 Neb. 509, 90 N.W. 243 (1902), which we find more appli-
cable to the present situation than the case of Emry v. American
Honda Motor Co., supra. In Anthony & Co., plaintiff filed suit
against two defendants, seeking a judgment for monetary dam-
ages. Defendants retained an attorney to represent them in the
litigation. The attorney informed defendants several times that
he had done certain things, but defendants later learned the
attorney had taken no action to protect their interests and that
a default judgment in the amount of $2,211.25 plus costs had
been entered against them several months earlier. Now out-
side the previous court term, they sought to vacate the default
judgment and requested a new trial. The district court agreed
and vacated the judgment. Plaintiff appealed; one argument on
appeal was that the facts were not such to bring the case within
any of the grounds specified by statute “for the vacation of
judgments after the term at which they have been rendered.”
Anthony & Co. v. Karbach, 64 Neb. at 512, 90 N.W. at 244.
The Nebraska Supreme Court affirmed the decision of the dis-
trict court, and as relevant here, stated:
One of the grounds specified . . . is unavoidable casualty
or misfortune, preventing the party from prosecuting or
defending. The word “casualty” means accident; that
which comes by chance, or without design, or without
being a foreseen contingency. The word “misfortune”
means ill-luck; ill-fortune; calamity; evil or cross acci-
dent. We do not believe it requires any stretch of lan-
guage to hold that one who has suffered by the dishonesty
of his attorney, an officer of the court, as shown by the
record in this case, is a victim of casualty and misfortune,
as above defined. Where any injury or mishap befalls one,
through unforeseen circumstances, which can not ordinar-
ily be guarded against, it is misfortune.
Id.
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We conclude the present case is distinguishable from Emry
and is more akin to the Anthony & Co. case. In the amended
complaint at issue, appellants alleged that they understood that
their attorney was doing what was necessary to diligently pur-
sue their claim and competently represent their interests; they
were unaware that their attorney had not responded to discov-
ery requests; they were led to believe and did believe that their
interests were being adequately represented; and at all times,
appellants were compliant and responsive to any requests or
demands made by their attorney for information necessary
to respond to discovery requests. Most important, appellants
alleged that they were “1) repeated[ly] reassured that their
case was progressing satisfactorily; 2) completely unaware that
their lawsuit was in jeopardy of being dismissed; and, 3) never
advised of any problems or impending deadlines, despite being
in contact with their attorney.”
In Emry v. American Honda Motor Co., 214 Neb. 435,
334 N.W.2d 786 (1983), in contrast to the present case,
there is no indication of any communication between plain-
tiff and counsel between the time the attorney died and the
case was dismissed. There was confusion created after the
death of counsel, but no indication that plaintiff was misled
into believing that the case was progressing satisfactorily.
In the present case, unlike Emry, appellants allege that they
had no reason to believe their case was in jeopardy of being
dismissed as a result of their attorney’s failure to comply
with discovery; their attorney did not provide them copies of
pleadings, including motions to compel or motions to dismiss.
Appellants were in contact with their attorney, provided infor-
mation to the attorney when asked, and were reassured by the
attorney that the case was progressing forward. The attorney’s
reassurances to appellants in the instant case, as alleged in the
amended complaint, amount to more than a lack of diligence
or negligence. The attorney’s actions appear to have been dis-
honest, with the intention of misleading appellants; these are
behaviors which the Nebraska Supreme Court has determined
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may constitute unavoidable casualty or misfortune, as dis-
cussed above.
The dissent concludes that a recent decision by the Nebraska
Supreme Court resolves any possible factual issues and con-
trols the outcome of this appeal. The Supreme Court reviewed
the attorney disciplinary proceeding brought against appel-
lants’ former attorney, Martin Troshynski, and the opinion was
released following oral argument in this case. See State ex rel.
Counsel for Dis. v. Troshynski, 300 Neb. 763, 916 N.W.2d 57
(2018). In the disciplinary case, the grievance filed by appel-
lants herein and another former client was based primarily
upon omissions by the attorney, whereas in the present case,
appellants alleged they were “repeated[ly] reassured that their
case was progressing satisfactorily.” The latter is a claim of
dishonesty which is not mentioned in the Supreme Court’s
opinion. Also, Neb. Ct. R. § 3-320 states:
The acquittal of the member on criminal charges or a ver-
dict or judgment in the member’s favor in civil litigation
involving material allegations similar in substance to a
Grievance, Complaint, or Formal Charge shall not in and
of itself justify termination of disciplinary proceedings
predicated upon the same or substantially the same mate-
rial allegations.
This would appear to create a divide between attorney dis-
cipline and the underlying case upon which the disciplinary
action is based. Grounds for discipline include violation of
an attorney’s oath or of the Nebraska Rules of Professional
Conduct. See Neb. Ct. R. § 3-303. And that violation can
be either negligent or intentional. We conclude the attorney
discipline case does not control the outcome of the pres-
ent appeal because an attorney disciplinary action is based
upon a violation of the oath of office or the Nebraska Rules
of Professional Conduct, which can be either negligent or
intentional, and the rules do not require proof of which theory
underlies the grievance. In the appeal before us, there are alle-
gations of affirmative statements by the attorney which were
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dishonest and appear to have been made with the intention
of misleading appellants. Whether such facts can be proved
remain the burden of appellants; however, because questions
of fact remain, judgment and dismissal on the pleadings was
not appropriate.
[6] A motion for judgment on the pleadings is properly
granted when it appears from the pleadings that only ques-
tions of law are presented. In re Trust Created by Hansen,
274 Neb. 199, 739 N.W.2d 170 (2007). As already noted,
appellants’ amended complaint raises more than questions of
law. Appellants alleged that their attorney misled them and
repeatedly reassured them that their case was progressing sat-
isfactorily. We conclude that appellants’ amended complaint
raises questions of fact as to whether the actions of their attor-
ney amount to an unavoidable casualty or misfortune which
prevented them from prosecuting their case, in the context of
§ 25-2001(4)(f). The motion for judgment on the pleadings
should have been denied.
[7] Because we conclude that the motion for judgment on the
pleadings should have been denied based on § 25-2001(4)(f),
we need not address appellants’ argument that the trial court
erred in concluding that there was no equitable basis for relief.
See Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018)
(appellate court not obligated to engage in analysis not neces-
sary to adjudicate case and controversy before it).
CONCLUSION
The district court erred by granting Navarrete-James’ motion
for judgment on the pleadings and dismissing appellants’ case
with prejudice.
R eversed and remanded for
further proceedings.
Pirtle, Judge, dissenting.
While I am sympathetic to the plight of appellants, and I
fully appreciate that the result reached previously by the dis-
trict court may appear harsh and unfair, I respectfully dissent
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from the majority’s conclusion that the district court erred in
granting Navarrete-James’ motion for judgment on the plead-
ings. I disagree with the majority’s determination that the
amended complaint raises questions of fact as to whether coun-
sel’s actions amounted to unavoidable casualty or misfortune
which prevented appellants from prosecuting their personal
injury case.
As stated in the majority opinion, the lack of diligence or
negligence of counsel is not unavoidable casualty or misfor-
tune in the context of § 25-2001(4)(f) entitling the applicant
to vacation of judgment after adjournment of term at which
judgment has been rendered. Emry v. American Honda Motor
Co., 214 Neb. 435, 334 N.W.2d 786 (1983). I would conclude
that appellants’ counsel’s actions as alleged in the amended
complaint were clearly due to lack of diligence or negligence
of counsel and that therefore, there is no question of fact.
My conclusion that there is no question of fact that coun-
sel’s actions were due to lack of diligence or negligence of
counsel, such that § 25-2001(4)(f) does not apply, is based
on the allegations contained within the amended complaint
itself filed by appellants in the district court and the Nebraska
Supreme Court’s recent decision in State ex rel. Counsel for
Dis. v. Troshynski, 300 Neb. 763, 916 N.W.2d 57 (2018). The
court discusses counsel’s failure to comply with discovery
requests in appellants’ personal injury lawsuit against appel-
lees, resulting in the dismissal of appellants’ case. The court
noted that the referee determined that the evidence showed that
“the clients . . . suffered greatly from [counsel’s] negligence.”
Id. at 767-68, 916 N.W.2d at 60 (emphasis supplied). The court
found that the facts were undisputed and were established by
clear and convincing evidence. It concluded that counsel vio-
lated several provisions of the Nebraska Rules of Professional
Conduct and violated his oath of office as a licensed attorney
during the time he represented appellants.
In the amended complaint before us now, appellants alleged
that they were unaware that their attorney had failed to comply
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with discovery, that they were repeatedly reassured that their
case was progressing satisfactorily, that they were completely
unaware their lawsuit was in jeopardy of being dismissed, and
that they were never advised of any problems or impending
deadlines. Appellants also stated that their counsel suffered
multiple health and family problems in 2014 and 2015 that
he now claims impacted his ability to diligently pursue appel-
lants’ personal injury lawsuit. Appellants made no allegations
that their counsel hid information or prevented them from fol-
lowing the progress of their case, or lack thereof, nor did they
allege that he committed any fraud or deceit or that any of his
actions were intentional.
Because the Supreme Court has found that counsel’s actions
were negligent, there can be no question of fact as to whether
counsel’s actions amounted to unavoidable casualty or mis-
fortune which prevented appellants from prosecuting their
personal injury case. I believe the district court correctly
found that appellants were not entitled to relief pursuant to
§ 25-2001(4)(f) and did not err in granting Navarrete-James’
motion for judgment on the pleadings.
I would conclude, therefore, that the district court did not err
in refusing to vacate the March 17, 2016, order and reinstate
their case.