Mutual of Omaha Bank v. Watson , 301 Neb. 833 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/04/2019 08:07 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
MUTUAL OF OMAHA BANK v. WATSON
Cite as 301 Neb. 833
Mutual Omaha Bank, appellee, v. Robert W. Watson,
of
appellant, and Shona R ae Watson, appellee, formerly
husband and wife, and Community Bank of
Lincoln, Trustee and beneficiary,
et al., appellees.
___ N.W.2d ___
Filed December 7, 2018. No. S-17-1332.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
2. Judgments: Words and Phrases. A judgment is the final determination
of the rights of the parties in an action.
3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), the three types of final orders which may be reviewed
on appeal are (1) an order which affects a substantial right and which
determines the action and prevents a judgment, (2) an order affecting
a substantial right made during a special proceeding, and (3) an order
affecting a substantial right made on summary application in an action
after judgment is rendered.
4. Final Orders: Words and Phrases. A substantial right is an essential
legal right.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Appeal dismissed.
Robert Watson, pro se.
Eric H. Lindquist, P.C., L.L.O., for appellee Mutual of
Omaha Bank.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
MUTUAL OF OMAHA BANK v. WATSON
Cite as 301 Neb. 833
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Robert W. Watson appeals from an order of the district court
denying his request for a stay of an order of sale in a judicial
foreclosure action. Watson claims he was entitled to such a stay
under Neb. Rev. Stat. § 25-1506 (Reissue 2016). We conclude
that the order denying the request for a stay was not appealable
and therefore dismiss the appeal.
BACKGROUND
This is not the first time this matter has come before this
court. After the district court determined that Watson and
his former spouse owed Mutual of Omaha Bank (Mutual)
$533,459.36, ordered an execution sale, and foreclosed Watson
and his former spouse from asserting any interest in the rel-
evant property, Watson perfected a timely appeal. We affirmed.
See Mutual of Omaha Bank v. Watson, 297 Neb. 479, 900
N.W.2d 545 (2017).
After our opinion was issued, Mutual applied to the district
court for and received a supplemental decree. In the supple-
mental decree, the court stated that Mutual paid sums con-
nected to the mortgaged property that were not included in
the initial decree and ordered that those amounts be added to
the amount due Mutual. Watson requested a stay of the order
of sale. The district court issued an order denying Watson’s
request for a stay. Watson appeals from this order.
ASSIGNMENT OF ERROR
Watson assigns one error on appeal: The district court erred
by denying his request for a stay of the order of sale.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
MUTUAL OF OMAHA BANK v. WATSON
Cite as 301 Neb. 833
independently decides. In re Interest of Tyrone K., 295 Neb.
193, 887 N.W.2d 489 (2016).
ANALYSIS
Mutual contends that this appeal should be dismissed for
lack of appellate jurisdiction. For reasons set forth below,
we agree.
[2] Neb. Rev. Stat. § 25-1911 (Reissue 2016) gives appellate
courts jurisdiction to review “[a] judgment rendered or final
order made by the district court . . . for errors appearing on the
record.” For purposes of appellate jurisdiction, “[a] judgment is
the final determination of the rights of the parties in an action.”
Neb. Rev. Stat. § 25-1301(1) (Reissue 2016). As there is no
question that the district court’s order denying Watson’s request
for a stay did not finally determine the rights of the parties in
an action, that order is not a judgment and thus is only appeal-
able if it qualifies as a final order.
[3] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the
three types of final orders which may be reviewed on appeal
are (1) an order affecting a substantial right in an action that,
in effect, determines the action and prevents a judgment; (2) an
order affecting a substantial right made during a special pro-
ceeding; and (3) an order affecting a substantial right made on
summary application in an action after a judgment is rendered.
Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d
774 (2018). Because all three types of reviewable final orders
affect a substantial right in the action, it is not necessary to
evaluate each of the three categories individually in cases in
which the order from which an appeal is taken does not affect
a substantial right. See, e.g., Deines v. Essex Corp., 293 Neb.
577, 581, 879 N.W.2d 30, 33 (2016) (“in this appeal, it is not
necessary to decide whether the order [at issue] fits into any
of the three categories, because the dispositive issue here is
whether the order affects a substantial right in the action”).
This is such a case.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
MUTUAL OF OMAHA BANK v. WATSON
Cite as 301 Neb. 833
Watson contends that he had a substantial right to a stay
under § 25-1506 and that the district court’s order denying
his request for a stay affected that right. The relevant portion
of § 25-1506 provides as follows: “The order of sale on all
decrees for the sale of mortgaged premises shall be stayed . . .
after the entry of such decree, whenever the defendant shall,
within twenty days after the entry of such decree, file with the
clerk of the court a written request for the same.”
A decree was issued in the foreclosure action in September
2016. Watson did not seek a stay within 20 days after the
entry of that decree. He instead filed his first appeal. Watson
acknowledges that he would ordinarily not be entitled to a stay
at this point given his failure to ask for a stay within 20 days of
the decree. He contends that he is nonetheless entitled to a stay
in this case, because the district court entered a supplemental
decree after his appeal was decided and he requested a stay
within 20 days of its entry.
Watson’s argument, however, is inconsistent with our prec-
edent. In Prudential Ins. Co. v. Nethaway, 127 Neb. 330, 255
N.W. 26 (1934), after a foreclosure decree was issued and a
defendant requested and received a stay, the plaintiff sought
and obtained a supplemental decree. Like the supplemental
decree in this case, the supplemental decree only had the effect
of increasing the amount the plaintiff owed the defendant.
The defendant responded by requesting another stay. We held
that the defendant was not entitled to a stay following the
supplemental decree. We explained that “[t]he modification
of the decree merely increased the personal liability of the
defendants” and “did not affect the decree of foreclosure of the
mortgaged property.” Id. at 331, 255 N.W. at 27.
Watson contends that Nethaway merely stands for the prop-
osition that once a party has requested and obtained one stay,
they may not obtain a second stay following the entry of a
supplemental decree. We do not believe this is a correct read-
ing of Nethaway. Our rationale for holding that the defendant
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
MUTUAL OF OMAHA BANK v. WATSON
Cite as 301 Neb. 833
in Nethaway was not entitled to a stay had nothing to do with
the fact that the defendant had already received one stay.
Rather, our decision rested on the nature of the supplemental
decree, specifically that it was not a new decree but a modi-
fication of the existing one. For that reason, we understand
Nethaway to hold that the issuance of a supplemental decree
that merely increases the amount due from a defendant does
not give rise to a right to seek a statutory stay.
[4] A substantial right is an essential legal right. Shawn
E. on behalf of Grace E. v. Diane S., 300 Neb. 289, 912
N.W.2d 920 (2018). Because a supplemental decree like the
one at issue in this case does not give rise to a right to seek
a statutory stay, we find that the district court’s order denying
Watson’s request for a stay did not affect any right, much less
an essential legal right. The order is therefore not final, and
we lack jurisdiction to decide the appeal.
CONCLUSION
The district court’s order denying Watson’s request for a
stay was not an appealable order. Lacking appellate jurisdic-
tion, we are obligated to dismiss the appeal.
A ppeal dismissed.