Holling v. Holling

to compensation for improvements which he makes thereon
after he has notice or knowledge that his title is defective, or
notice or knowledge of an adverse title or claim to the property
in another. See id. See, also, Neb. rev. Stat. § 76-301 et seq.
(reissue 2003) (enacted with respect to occupying claimants).
Because the Devalls made the improvements with knowledge
of the lease and right of first refusal, they were not entitled to
recover on their claim. We find no error in the denial of the
Devalls’ claim for compensation for improvements made to
the property.
CONCLUSION
The district court did not err in granting summary judgment
in Jennifer’s favor or in denying the Devalls’ claim with respect
to improvements made to the property.
affirmed .
keLLi d. hoLLing , appeLLee , v .
tony L. hoLLing , appeLLant .
744 N.W.2d 479
Filed February 5, 2008. 	No. A-07-065.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the court below.
2. Courts: Trial: Evidence: Dismissal and Nonsuit. After submission, a trial court
has no authority to dismiss a case without prejudice on the basis that a plaintiff
has failed to produce sufficient evidence to sustain his or her claims.
Appeal from the District Court for Dawson County: J ameS e.
doyLe iv, Judge. Affirmed as modified.
Douglas Pauley and Chris A. Johnson, of Conway, Pauley &
Johnson, P.C., for appellant.
No appearance for appellee.
inbody, Chief Judge, and carLSon and caSSeL, Judges.
394 	16 NeBrASkA APPeLLATe rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

caSSeL, Judge.
INTrODUCTION
kelli D. Holling, on behalf of her minor children, sought a
protection order against Tony L. Holling. After an evidentiary
hearing, the district court for Dawson County dismissed kelli’s
petition “without prejudice.” Tony appeals. Because the mat-
ter was submitted to the district court on the merits, the court
lacked authority to dismiss without prejudice. We modify the
judgment to dismiss the petition with prejudice.
STATeMeNT OF FACTS
In November 2006, kelli, on behalf of her two minor chil-
dren, filed a petition to obtain a domestic abuse protection
order. It would serve no useful purpose here to describe kelli’s
allegations. Instead, it is relevant to note only that, following
a hearing in which kelli represented herself and both parties
adduced evidence, the district court found that kelli had failed
to establish that she was entitled to have a protection order
issued. The court stated, “I’m going to dismiss your petition
without prejudice, which means if you need to bring it up again,
you can, but you’re going to have to have different proof than
you did today.” Upon Tony’s objection, the court stated that
when it dismissed without prejudice, it meant that costs would
not be assessed against anyone. The court reiterated that kelli
would have the right to bring up additional facts that had not
been presented at the hearing that day.
Tony has appealed from this order. Pursuant to this court’s
authority under Neb. Ct. r. of Prac. 11B(1) (rev. 2006), the case
was ordered submitted without oral argument.
ASSIGNMeNT OF errOr
Tony assigns one error, asserting that the district court failed
to dismiss kelli’s action with prejudice.
STANDArD OF reVIeW
[1] Statutory interpretation is a matter of law, in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the court below. Watson v. Watson, 272 Neb. 647,
724 N.W.2d 24 (2006).
HOLLING v. HOLLING 	395
Cite as 16 Neb. App. 394

ANALYSIS
As summarized, Tony argues that he has already been sub-
jected to trial on kelli’s request for a protection order and that
she failed to prove her allegations. He complains that when the
district court dismissed the case without prejudice after a trial
on the merits, it effectively handed kelli a second chance to
pursue the identical claims against him.
Neb. rev. Stat. § 25-601 (reissue 1995) governs dismissals
without prejudice. It provides as follows:
An action may be dismissed without prejudice to a
future action (1) by the plaintiff, before the final submis-
sion of the case to the jury, or to the court where the trial
is by the court; (2) by the court where the plaintiff fails to
appear at the trial; (3) by the court for want of necessary
parties; (4) by the court on the application of some of the
defendants where there are others whom the plaintiff fails
to diligently prosecute; (5) by the court for disobedience
by the plaintiff of an order concerning the proceedings in
the action. In all other cases on the trial of the action the
decision must be upon the merits.
Section 25-601 thus enumerates the circumstances in which
a trial court may order a dismissal without prejudice, none of
which encompasses the situation presented in this case. In the
absence of any of these circumstances, a trial court is clearly
directed to make its decision upon the merits.
As the Nebraska Supreme Court explained many years ago:
At common law a nonsuit was not a bar to a future action,
and the evident purpose of the framers of the code was to
change the law in order to lead every case to a final judg-
ment which should be a bar except where, for sufficient
reasons, other provision has been made.
Zittle v. Schlesinger, 46 Neb. 844, 846-47, 65 N.W. 892
(1896). The 	goal 	of 	the 	statute 	has 	not 	changed 	in 	the
intervening years.
In a similar case, the Supreme Court of Minnesota stated,
“[T]he rules do not provide for the trial court, on its own, to
dismiss a case without prejudice because a claimant is in trouble
on the merits of her case.” Lampert Lumber Co. v. Joyce, 405
N.W.2d 423, 426 (Minn. 1987). “[O]nce the case is finally
396 	16 NeBrASkA APPeLLATe rePOrTS

submitted, if the integrity of the adversarial trial process is to be
maintained, we think the trial judge is under a duty to decide the
matter on the merits.” Id.
[2] Section 25-601 is unambiguous in its terms. After sub-
mission, a trial court has no authority to dismiss a case without
prejudice on the basis that a plaintiff has failed to produce suf-
ficient evidence to sustain his or her claims. The district court
erred in doing so in the instant case.
CONCLUSION
We modify the judgment of the district court to dismiss
kelli’s petition with prejudice, and as so modified, we affirm.
affirmed aS modified .
S tate of nebraSka , appeLLant , v .
gregory d. hatt , appeLLee .
744 N.W.2d 493
Filed February 5, 2008. 	No. A-07-190.
1. Sentences: Appeal and Error. Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by a district court that is
within the statutorily prescribed limits will not be disturbed on appeal unless there
appears to be an abuse of the trial court’s discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
3. Sentences: Appeal and Error. Neb. rev. Stat. § 29-2322 (reissue 1995) provides
that an appellate court, upon a review of the record, shall determine whether a
sentence imposed is excessively lenient, having regard for (1) the nature and
circumstances of the offense; (2) the history and characteristics of the defendant;
(3) the need for the sentence imposed (a) to afford adequate deterrence to crimi-
nal conduct; (b) to protect the public from further crimes of the defendant; (c) to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; and (d) to provide the defendant with needed edu-
cational or vocational training, medical care, or other correctional treatment in the
most effective manner; and (4) any other matters appearing in the record which the
appellate court deems pertinent.
4. Sentences. A sentencing court is not limited in its discretion to any mathematically
applied set of factors. The appropriateness of a sentence is necessarily a subjec-
tive judgment and includes the sentencing judge’s observation of the defendant’s
STATe v. HATT 	397
Cite as 16 Neb. App. 397