Jones v. Jones

any change of employment or residence. He has to submit his
person, residence, business, and vehicle to search and seizure at
any time by any law enforcement or probation officer with or
without a search warrant. Antoniak must also pay court costs,
a probation administrative enrollment fee, and a $25 monthly
probation programming fee. Antoniak must comply with every
one of these conditions of probation, or he will be subject to the
filing of a motion to revoke his probation and the imposition of
a new sentence.
We conclude that there was a reasonable factual basis for the
sentence imposed and that the sentence did not constitute an
abuse of the district court’s discretion.
CONCLUSION
Because we conclude that the district court did not abuse its
discretion in sentencing Antoniak, we affirm the sentence.
A ffirmed .
C ourtney S. J oneS, individuAlly And AS P erSonAl
rePreSentAtive of the eStAte of riChArd e. J oneS,
deCeASed , APPellAnt , v . ronAld l. J oneS
And J eAn mArie J oneS, APPelleeS.
747 N.W.2d 447
Filed February 26, 2008. 	No. A-05-1076.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one conclu-
sion from the evidence, that is to say, when an issue should be decided as a matter
of law.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
452 	16 NeBrASkA AppeLLAte repOrtS
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www.nebraska.gov/apps-courts-epub/
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4. Jurisdiction: Final Orders: Appeal and Error. An appellate court is without
jurisdiction to entertain appeals from nonfinal orders.
5. Actions: Parties: Judgments. Under Neb. rev. Stat. § 25-1315(1) (Cum. Supp.
2006), the court may direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for entry of judg-
ment. In the absence of such determination and direction, any order or other form
of decision, however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not terminate the action as
to any of the claims or parties.
6. Courts: Judgments. When a trial court concludes that entry of judgment under
Neb. rev. Stat. § 25-1315(1) (Cum. Supp. 2006) is appropriate, it should ordinar-
ily make specific findings setting forth the reasons for its order.
7. ____: ____. Courts considering certification of a final judgment should weigh
factors such as (1) the relationship between the adjudicated and unadjudicated
claims; (2) the possibility that the need for review might or might not be mooted
by future developments in the trial court; (3) the possibility that the reviewing
court might be obliged to consider the same issue a second time; (4) the presence
or absence of a claim or counterclaim which could result in setoff against the
judgment sought to be made final; and (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like.
Appeal from the District Court for Dundy County: J ohn J.
BAtterShell, Judge. Appeal dismissed.
r.k. O’Donnell, robert B. reynolds, and James r. korth, of
McGinley, O’Donnell & reynolds, p.C., L.L.O., for appellant.
terrance O. Waite and S. David Schreiber, of Waite, McWha
& Harvat, for appellees.
inBody, Chief Judge, and irwin and moore, Judges.
inBody, Chief Judge.
INtrODUCtION
Courtney S. Jones, personal representative of the estate of
her late husband, richard e. Jones, appeals the order of the
district court for Dundy County, in her suit against her in-laws
ronald L. Jones and Jean Marie Jones, that sustained ronald
and Jean Marie’s motion for directed verdict on Courtney’s
cause of action for an accounting. We dismiss this appeal, case
No. A-05-1076, for lack of jurisdiction.
JONeS v. JONeS 	453
Cite as 16 Neb. App. 452

StAteMeNt OF FACtS
Courtney, personal representative of richard’s estate, filed a
petition against ronald and Jean Marie, alleging, inter alia, that
a partnership existed between richard and ronald, and seeking,
in its first cause of action, an accounting regarding the alleged
partnership. the petition asserted three additional causes of
action: delivery, conversion, and material misrepresentation.
A trial was held on the cause of action for an accounting,
and after the close of evidence, the trial court sustained ronald
and Jean Marie’s motion for a directed verdict. In announcing
its ruling from the bench, the trial court stated:
[F]or appeal purposes, if you’re thinking about appealing
this we should probably enter an order today that says
that’s a final order, so that it is, because you have those
other three.
. . . .
. . . I just wanted to point out that if there are any con-
siderations regarding an appeal, that you may wish to have
that clearly stated that it’s a final order so you don’t get up
there and have it come back again.
the trial court specifically found that there was “no evidence
regarding a partnership of any type or kind.” In a journal entry,
the trial court stated, “the Court ordered that [Courtney] is
not entitled to an accounting on any theory presented and the
first cause of action is dismissed.” Courtney filed a motion
for new trial, and the trial court overruled the motion, stating,
“[t]he order overruling the Motion for New trial should be and
hereby is designated as a final order for purposes of appeal.” In
a docket entry, the trial court stated that its ruling “regarding
the accounting was and is a final order and there was no reason
to delay that ruling.”
On September 8, 2005, Courtney filed a notice of appeal from
the order overruling the motion for new trial and the journal
entry dismissing her accounting cause of action, and the appeal
was docketed as case No. A-05-1076. Courtney’s brief alleges
a sole assignment of error: that the trial court erred in granting
a directed verdict in favor of ronald and Jean Marie. She does
not assign or argue that the trial court erred in overruling her
motion for new trial.
454 	16 NeBrASkA AppeLLAte repOrtS

In the trial court, ronald and Jean Marie filed a motion
for summary judgment as to Courtney’s remaining causes of
action for delivery, conversion, and material misrepresentation.
On September 27, 2005, the trial court entered a journal entry
sustaining the motion for summary judgment, specifically find-
ing that Courtney had testified under oath that “she knows of
no activity of [ronald and Jean Marie] that would give rise to
her causes of action,” and dismissed Courtney’s petition. On the
same day, Courtney filed a notice of appeal of the trial court’s
order that granted ronald and Jean Marie’s motion for summary
judgment. that appeal was docketed as case No. A-05-1176.
On October 14, 2005, we dismissed case No. A-05-1076
with the following docket sheet minute entry:
Appeal dismissed by the court pursuant to rule 7A(2).
the district court’s order is not a final and appealable
order because it did not dispose of all the claims of all the
parties as required by Neb. rev. Stat. § 25-1315 (Cum.
Supp. 2004). It is clear from the record that at least a
counterclaim is still pending and possibly other causes
of action.
It later came to our attention that the counterclaim referenced
in this minute entry was erroneous because it was not in the
present litigation, but instead in another suit which involved the
same parties and which is not before this court at this time.
On October 21, 2005, Courtney filed a motion for recon-
sideration/motion to consolidate, requesting that we reconsider
our dismissal of case No. A-05-1076 (cause of action for
accounting) and consolidate it with case No. A-05-1176 (causes
of action for delivery, conversion, and material misrepresen-
tation). On December 22, we denied the motion on the basis
that the order appealed from in case No. A-05-1076 did not
dispose of all of Courtney’s claims, and we denied the motion
to consolidate. thus, case No. A-05-1076 was dismissed for
lack of a final order, and case No. A-05-1176 remained pending
and 	has 	remained 	so 	throughout 	the 	appellate 	history 	of
the litigation.
Subsequently, we reinstated case No. A-05-1076 and con-
solidated it with case No. A-05-1176 with the following docket
sheet minute entry:
JONeS v. JONeS 	455
Cite as 16 Neb. App. 452

It has come to the attention of the Court that the issues
contained in A-05-1076 and A-05-1176 are interwoven
and involved all four causes of action from the lower
court. At the time that the appeal in A-05-1176 was filed,
all issues had been disposed of by the district court and
these cases should have been consolidated for appeal to
this court. Although a previous motion to consolidate was
denied, “[t]hrough this court’s inherent judicial power,
which is that power essential to the court’s existence, dig-
nity, and functions, we have authority to do all things that
are reasonably necessary for the proper administration of
justice.” State v. Moore, 273 Neb. 495, 497, [730] N.W.2d
[563], [564] (2007). therefore, the mandate in A-05-1076
is hereby recalled and the appeal is reinstated. Case Nos.
A-05-1076 and A-05-1176 are consolidated for oral argu-
ment and disposition.
On August 24, 2007, ronald and Jean Marie filed a motion
for dismissal of case No. A-05-1076 pursuant to Neb. Ct. r. of
prac. 7B(1) (rev. 2001), arguing that this court lacked jurisdic-
tion. We heard oral arguments on both case No. A-05-1076 and
case No. A-05-1176.
ASSIGNMeNt OF errOr
In case No. A-05-1076, Courtney alleges that the trial court
erred in sustaining ronald and Jean Marie’s motion for directed
verdict on her cause of action for an accounting.
StANDArD OF reVIeW
[1,2] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reasonably
be deduced from the evidence. Livingston v. Metropolitan Util.
Dist., 269 Neb. 301, 692 N.W.2d 475 (2005). A directed verdict
is proper at the close of all the evidence only when reasonable
minds cannot differ and can draw but one conclusion from the
456 	16 NeBrASkA AppeLLAte repOrtS

evidence, that is to say, when an issue should be decided as a
matter of law. Gerhold Concrete Co. v. St. Paul Fire & Marine
Ins., 269 Neb. 692, 695 N.W.2d 665 (2005).
ANALYSIS
[3,4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. Hallie Mgmt. Co. v.
Perry, 272 Neb. 81, 718 N.W.2d 531 (2006). ronald and Jean
Marie’s latest motion asks us to consider whether the directed
verdict from which Courtney now appeals was a final order for
purposes of appeal. An appellate court is without jurisdiction to
entertain appeals from nonfinal orders. Id.
[5-7] As described above, the trial court apparently attempted
to certify as final the judgment for directed verdict out of which
this appeal arises. In the recent case of Cerny v. Todco Barricade
Co., 273 Neb. 800, 733 N.W.2d 877 (2007), the Nebraska
Supreme Court considered the conditions under which a trial
court could certify a judgment as final under Neb. rev. Stat.
§ 25-1315(1) (Cum. Supp. 2006), which provides:
[t]he court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason
for delay and upon an express direction for entry of judg-
ment. In the absence of such determination and direction,
any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not termi-
nate the action as to any of the claims or parties . . . .
the court stated that when a trial court concludes that entry of
judgment under § 25-1315(1) is appropriate, it should ordinar-
ily make specific findings setting forth the reasons for its order.
Cerny v. Todco Barricade Co., supra. the court also discussed
the criteria a trial court must consider in deciding whether to
certify a final judgment under § 25-1315(1):
[C]ertification of a final judgment requires a court to
determine whether the case is the “unusual case” in which
potential hardship to the litigants outweighs the strong
policy 	against 	piecemeal 	appeals. 	Courts 	considering
JONeS v. JONeS 	457
Cite as 16 Neb. App. 452

certification of a final judgment have weighed factors
such as (1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need for
review might or might not be mooted by future develop-
ments in the trial court; (3) the possibility that the review-
ing court might be obliged to consider the same issue a
second time; (4) the presence or absence of a claim or
counterclaim which could result in setoff against the judg-
ment sought to be made final; and (5) miscellaneous fac-
tors such as delay, economic and solvency considerations,
shortening the time of trial, frivolity of competing claims,
expense, and the like.
Cerny v. Todco Barricade Co., 273 Neb. at 812, 733 N.W.2d
at 888. Under these factors, the court concluded that the trial
court had abused its discretion in certifying a partial sum-
mary judgment as final under § 25-1315(1), vacated the order
certifying a final judgment, and dismissed the appeal for lack
of jurisdiction.
In the case before us, the trial court failed to state specific
findings setting forth the reasons for its order as required by
Cerny v. Todco Barricade Co., supra. even if we were to
assume the trial court’s brief, unsigned docket entry was suf-
ficient to certify the directed verdict as a final order, it appears
that the nature of Courtney’s claims is such that the trial court
abused its discretion in attempting to certify the judgment as
final. Courtney’s claims are clearly interwoven. Courtney’s
primary claim in her cause of action for an accounting is that
a partnership existed. the existence of a partnership is also
important to her remaining claims of delivery, conversion, and
material misrepresentation, although the absence of a partner-
ship would not entirely vitiate her appeal from the summary
judgment on her causes of action for conversion and material
misrepresentation. Indeed, the piecemeal nature of the appeals
in this case has occasioned the use of more judicial resources
than a single appeal would have required. Based on Cerny v.
Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007),
we conclude that the trial court did not certify its order for a
directed verdict as a final order.
458 	16 NeBrASkA AppeLLAte repOrtS

CONCLUSION
Based on the foregoing, we conclude that we do not have
jurisdiction over case No. A-05-1076, and accordingly dismiss
the appeal.
APPeAl diSmiSSed .
williAm K irKwood et Al ., APPelleeS, v . S tAte of
neBrASKA, APPellAnt , And S helter mutuAl
inSurAnCe C omPAny , intervenor -APPellee .
roSS oStergArd , APPellee , v .
S tAte of neBrASKA, APPellAnt .
748 N.W.2d 83
Filed February 26, 2008. 	Nos. A-05-1226, A-06-630.
1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
the record de novo to determine whether a trial court has abdicated its gate-
keeping function.
2. ____: ____: ____. Whether a witness is qualified as an expert is a preliminary
question for the trial court. A trial court is allowed discretion in determining
whether a witness is qualified to testify as an expert, and unless the court’s finding
is clearly erroneous, such a determination will not be disturbed on appeal.
3. Rules of Evidence. In proceedings where the Nebraska rules of evidence apply,
the admission of evidence is controlled by rule and not by judicial discretion,
except where judicial discretion is a factor involved in assessing admissibility.
4. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving or
excluding an expert’s testimony which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a 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.
6. Tort Claims Act: Appeal and Error. A district court’s findings of fact in a pro-
ceeding under the State tort Claims Act will not be set aside unless such findings
are clearly erroneous.
7. Tort Claims Act: Claims. Whether the allegations made by a plaintiff constitute a
claim under the State tort Claims Act or whether the allegations set forth a claim
that is precluded by the exemptions set forth in the act are questions of law.
8. Negligence. the question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
9. Administrative Law: Judgments. the district court’s interpretation of the
Manual on Uniform traffic Control Devices presents a question of law.
kIrkWOOD v. StAte 	459
Cite as 16 Neb. App. 459