Wagner v. Wagner

we decline to reach that argument, as Moyer failed to properly
assert a cross-appeal in this case. Contrary to Neb. Ct. R. of
Prac. 9D(4) (rev. 2006), Moyer’s brief fails to note any cross-
appeal on the cover of his brief, nor is his argument set forth in
a separate division of the brief. Moreover, his brief includes no
assignments of error.
CONCLUSION
We conclude that the district court erred in finding that the
DMV lacked jurisdiction to revoke Moyer’s license. We there-
fore reverse the order of the district court and remand the cause
with directions to reinstate the administrative revocation of
Moyer’s driver’s license.
R eveRsed .
M aRy elizabeth W agneR, appellee , v .
J aMes bRian W agneR, appellant .
749 N.W.2d 137
Filed May 16, 2008. 	No. S-06-427.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter of law.
2. Courts: Appeal and Error. Regarding a question of law, the Nebraska Supreme
Court reaches a conclusion independent of the determination reached by the
Nebraska Court of Appeals.
3. Final Orders: Appeal and Error. When multiple issues are presented to a trial
court for simultaneous disposition in the same proceeding and the court decides
some of the issues, while reserving other issues for later determination, the court’s
determination of less than all the issues is an interlocutory order and is not a final
order for the purpose of an appeal.
4. Courts: Records. Trial courts, and the clerks of those courts, should not file
stamp any court-issued document that is not meant to take legal effect.
5. Judgments: Final Orders: Records. Court-issued findings that direct a party to
prepare a final order memorializing those findings, and to submit that order to an
opposing party for approval before submitting it to the court, are not a final deter-
mination of the rights of the parties and do not become a final order or judgment
if file stamped.
6. ____: ____: ____. There must first be a final determination of the rights of the
parties before there is a judgment to be either rendered or entered.
7. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of
Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some
or all of the assignments of error the Court of Appeals did not reach.
WAgNeR v. WAgNeR 	693
Cite as 275 Neb. 693
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

694 	275 NebRASkA RePORTS
Petition for further review from the Court of Appeals, iRWin ,
sieveRs, and M ooRe, Judges, on appeal thereto from the District
Court for Hall County, J aMes d. livingston, Judge. Judgment
of Court of Appeals reversed, and cause remanded for further
proceedings.
Riko e. bishop, of Perry, guthery, Haase & gessford, P.C.,
L.L.O., for appellant.
kevin A. brostrom and Stacie A. goding, of Lauritsen,
brownell, brostrom, Stehlik, Myers & Daugherty, P.C., L.L.O.,
for appellee.
heavican, 	C.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
M ccoRMack, and M illeR-leRMan, JJ.
geRRaRd, J.
The question presented in this appeal is whether the trial
court’s file-stamped letter memorandum to the parties, direct-
ing the plaintiff to prepare a final decree, was itself a final
judgment.1 The Nebraska Court of Appeals determined that it
was, and dismissed an appeal taken after the entry of the final
decree, reasoning that the notice of appeal was untimely.2
This case illustrates why trial courts should take care to
ensure that regardless of how a final judgment is prepared, only
the signed final order is filed with the clerk of the court.3 The
clerk should not file stamp any document prepared by the trial
court that is not a court order intended to have legal effect. but
a filing that does not finally dispose of a case does not become
a final, appealable order just because it is file stamped, and
the trial court’s order in this case was clearly not meant to be
a final determination of the rights and liabilities of the parties.
Therefore, we conclude that the letter in this case was not a
final, appealable order, and reverse the decision of the Court
of Appeals.
1 See Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2006).
2 See Wagner v. Wagner, 16 Neb. App. 328, 743 N.W.2d 782 (2008), citing
Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2006).
3 See Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004).

PROCeDURAL HISTORY
This case began with Mary Wagner’s petition to dissolve her
marriage to James Wagner. The parties reached an agreement
on child custody and support, and other miscellaneous issues,
but the case proceeded to trial on the valuation and division of
the marital estate, alimony, and attorney fees. Trial was held on
August 22 and December 7, 2005.
A letter from the trial judge dated January 10, 2006, was
sent to the parties, and file stamped on January 11. The letter
stated that “[b]y this letter I am rendering decision on the trial
of this matter.” The letter directed Mary’s counsel to draft a
decree incorporating the judge’s findings, submit it to James’
counsel for approval, and then submit it to the court. The letter
incorporated the previous stipulation of the parties as to child
custody, and made several specific findings with respect to
the valuation and division of the marital estate. The letter also
awarded alimony and attorney fees. but the letter did not make
any jurisdictional findings with respect to the dissolution of the
marriage,4 nor did it make the required finding that the marriage
was irretrievably broken.5 And the letter did not, in point of fact,
order the marriage dissolved.
Instead, as directed by the court, a decree of dissolution
was prepared by Mary’s counsel, and approved as to form by
James’ counsel. That decree, which included the necessary
jurisdictional findings and actually dissolved the marriage, was
rendered by the trial court on February 7, 2006. James filed a
timely motion for new trial and to alter or amend the judgment.
On March 14, the court overruled the motion for new trial, but
amended the judgment to expressly provide that the alimony
award would terminate on the death of either party. On April 12,
James filed his notice of appeal.
The Court of Appeals dismissed James’ appeal.6 The Court of
Appeals found that the trial court’s letter was “a written, signed
document which set forth the court’s determination of all issues
4 See Neb. Rev. Stat. § 42-349 (Reissue 2004).
5 See Neb. Rev. Stat. § 42-361 (Reissue 2004).
6 See Wagner, supra note 2.
WAgNeR v. WAgNeR 	695
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696 	275 NebRASkA RePORTS
presented for resolution. In that document, the court specifically
indicated that it was ‘rendering decision on the trial of this mat-
ter.’”7 The Court of Appeals determined that the letter operated
to render judgment, “because it was a written, signed notation
of the relief granted or denied,” and had been entered when it
was file stamped by the clerk of the court.8 Thus, the Court of
Appeals determined that the letter was a final judgment. And
neither a timely notice of appeal, nor a timely tolling motion,
had been filed with respect to the letter. Therefore, the Court
of Appeals concluded that James’ appeal was untimely, and
dismissed the appeal.9
James filed a petition for further review, which we granted.
The appeal was submitted without oral argument, pursuant to
Neb. Ct. R. of Prac. 11b(1) (rev. 2006).
ASSIgNMeNT OF eRROR
James assigns, restated, that the Court of Appeals erred in
dismissing his appeal for lack of jurisdiction.
STANDARD OF ReVIeW
[1,2] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter
of law.10 And regarding a question of law, we reach a conclu-
sion independent of the determination reached by the Court
of Appeals.11
ANALYSIS
Section 25-1301(1) defines a judgment as “the final determi-
nation of the rights of the parties in an action.” And an order
entered by a court may affect a substantial right and be subject
to review as a final order although it could not or need not be
7 Id. at 334, 743 N.W.2d at 786.
8 See, id. at 335, 743 N.W.2d at 786; § 25-1301(3).
9 See id.
10 State ex rel. Bruning v. R.J. Reynolds Tobacco Co., ante p. 310, 746 N.W.2d
672 (2008).
11 Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).

properly denominated a judgment.12 Section 25-1301(3) also
explains how a final judgment or order is rendered by a court:
“The entry of a judgment, decree, or final order occurs when
the clerk of the court places the file stamp and date upon the
judgment, decree, or final order.” And “[f]or purposes of deter-
mining the time for appeal, the date stamped on the judgment,
decree, or final order shall be the date of entry.”
The problem in this case is that the trial court’s letter memo-
randum was signed and file stamped, which is all that § 25-1301
requires for the court to render a judgment. Thus, the question
presented is whether the trial court’s file-stamped letter memo-
randum was a final judgment. We have recently decided two
cases addressing similar issues, and a review of those cases is
essential to our analysis of the instant case.
In Hosack v. Hosack,13 the district court entered a file-
stamped journal entry in which the court dissolved the parties’
marriage, divided the marital estate, and awarded alimony. The
journal entry provided that a decree was to be prepared by coun-
sel, provided to opposing counsel for review, and “‘presented
to the Court for signature no later than November 15, 2002.’”14
The decree was prepared and entered, and an appeal was taken.
The Court of Appeals summarily dismissed the appeal, finding
it was untimely because it was not taken within 30 days of the
file-stamped journal entry, which the Court of Appeals deter-
mined to be a final, appealable order.15
On further review, we reversed, finding that the journal
entry “left certain matters unresolved.”16 We noted that in the
journal entry, “counsel was directed to advise the district court
by written motion if the court had failed to rule on any mate-
rial issue presented.”17 And we noted that “[t]he journal entry
12 See, Neb. Rev. Stat. § 25-1902 (Reissue 1995); State v. Loyd, 269 Neb. 762,
696 N.W.2d 860 (2005).
13 Hosack, supra note 3.
14 Id. at 936, 678 N.W.2d at 750.
15 Hosack v. Hosack, 11 Neb. App. lxxiii (No. A-02-1405, May 30, 2003).
16 Hosack, supra note 3, 267 Neb. at 939, 678 N.W.2d at 752.
17 Id.
WAgNeR v. WAgNeR 	697
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698 	275 NebRASkA RePORTS
contemplated that the decree was to be prepared for opposing
counsel’s review . . . .”18 Therefore, we concluded that “the
journal entry was not the final determination of the rights of the
parties in this action.”19
We also took the opportunity to expressly disapprove of
the practice of a trial court’s filing of a journal entry which
describes an order that is to be entered at a subsequent date,
explaining that confusion “‘can be avoided if trial courts will,
as they should, limit themselves to entering but one final deter-
mination of the rights of the parties in a case.’”20 We expressly
directed that “[o]nly the signed final order should be filed with
the clerk of the court.”21
Then, in City of Ashland v. Ashland Salvage,22 we again
faced a file-stamped journal entry followed by a subsequent
order. but the situation was distinguishable from Hosack, in
that the plaintiff in City of Ashland sought both declaratory and
injunctive relief. The journal entry disposed of the entire merits
of the case, but directed the plaintiff to prepare an “‘Order of
Permanent Injunction’” that the court entered later.23 because,
unlike Hosack, the journal entry in City of Ashland disposed
of all claims, it was a final, appealable order. And because the
notice of appeal in City of Ashland had been taken from the
journal entry and not the subsequent permanent injunction, we
concluded we had jurisdiction over the appeal.24
In the present case, as set forth in more detail above, the trial
court sent a letter to counsel, setting forth the court’s determi-
nation of several of the issues presented for resolution. The
letter was, however, file stamped by the clerk of the court. The
18 Id.
19 Id. at 939-40, 678 N.W.2d at 752.
20 Id. at 940, 678 N.W.2d at 752, quoting Federal Land Bank v. McElhose, 222
Neb. 448, 384 N.W.2d 295 (1986).
21 Id. at 940, 678 N.W.2d at 753.
22 City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861
(2006).
23 Id. at 366, 711 N.W.2d at 866.
24 Id.

letter directed counsel for one of the parties to prepare another
document and present it to opposing counsel for approval as
to form. The Court of Appeals concluded that the letter was a
final, appealable order, and dismissed the appeal.25
The Court of Appeals, however, erred in two respects. First,
the letter had not disposed of all the issues presented by the
pleadings. Most pertinently, the letter had not found that the
marriage was irretrievably broken, or dissolved the marriage.
Section 42-361(1) requires, even if the issue is uncontested,
that “the court, after hearing, shall make a finding whether the
marriage is irretrievably broken.” In this case, the trial court’s
letter had not addressed the most fundamental issue presented
by the case: whether the marriage should be dissolved. It could
not have been rendered as a final judgment within the meaning
of § 25-1301.
[3] but just as important is the fact that, as in Hosack,26
the trial court’s letter was written only in contemplation of a
decree to be entered later. In this regard, our decision in Dawes
v. Wittrock Sandblasting & Painting27 is instructive. In Dawes,
the problem was that the trial judge’s final order had failed to
expressly discuss certain matters presented by the pleadings. We
noted the well-established proposition that when multiple issues
are presented to a trial court for simultaneous disposition in
the same proceeding and the court decides some of the issues,
while reserving other issues for later determination, the court’s
determination of less than all the issues is an interlocutory order
and is not a final order for the purpose of an appeal.28 but we
found the situation in Dawes distinguishable, because the issues
not discussed were not reserved for later determination.
Instead, in Dawes, no issues were reserved for further deter-
mination, and it was “apparent, from an examination of the
25 See Wagner, supra note 2.
26 Hosack, supra note 3.
27 Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167
(2003), disapproved in part on other grounds, Kimminau v. Uribe Refuse
Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
28 See, id.; Huffman v. Huffman, 236 Neb. 101, 459 N.W.2d 215 (1990); Hamm
v. Champion Manuf. Homes, 11 Neb. App. 183, 645 N.W.2d 571 (2002).
WAgNeR v. WAgNeR 	699
Cite as 275 Neb. 693

700 	275 NebRASkA RePORTS
award and the procedural posture of the case,” that the order
was intended to serve as a final adjudication of the rights and
liabilities of the parties.29 “As a practical matter, the substantial
effect of the judgment was to dispose of the entire case, end the
litigation, and leave nothing for the court to do.”30 Therefore, we
found that the judge had rendered a final, appealable order.31
Those principles are applicable here, but they lead to the
opposite conclusion. Here, the court’s direction to counsel to
prepare a final decree, and submit that decree for approval to
opposing counsel and then the court, clearly indicates that the
letter was not intended to be the court’s final adjudication of the
rights and liabilities of the parties. As in Hosack,32 the court’s
preliminary findings contemplated that the decree was to be
prepared for opposing counsel’s review and were not the final
determination of the rights of the parties. And City of Ashland33
is distinguishable, because in that case, the trial court’s journal
entry was a complete adjudication of all the issues presented,
and the subsequent injunction was merely an order to enforce
the terms of the previously entered final judgment. Such orders,
entered in an action after judgment, are not uncommon in
Nebraska law, and do not affect the status of the final judgment
they are intended to enforce.34
[4] because of the potential for confusion, trial courts should
be very careful if they decide to inform the parties of their find-
ings before entering a final judgment. In particular, trial courts,
and the clerks of those courts, should not file stamp any court-
issued document that is not meant to take legal effect. Instead,
“the trial court should notify the parties of its findings and inten-
tions as to the matter before the court by an appropriate method
29 Dawes, supra note 27, 266 Neb. at 536, 667 N.W.2d at 180.
30 Id. at 537, 667 N.W.2d at 180-81.
31 Id.
32 Hosack, supra note 3.
33 City of Ashland, supra note 22.
34 See, e.g., Blaine v. Blaine, ante p. 87, 744 N.W.2d 444 (2008); Heathman v.
Kenney, 263 Neb. 966, 644 N.W.2d 558 (2002); § 25-1902. Compare Koziol
v. Koziol, 10 Neb. App. 675, 636 N.W.2d 890 (2001).

of communication” without file stamping any document.35 And
only the signed final order should be filed with the clerk of
the court.36
Although we have said these things before, the problem
keeps recurring. It is absolutely essential that trial court judges
consider this problem, discuss it with their court clerks, and
review their procedures for communicating with the parties and
preparing and entering final orders, so that it does not happen
again. The courts of this state should not be procedural mine-
fields for unwitting litigants.
[5,6] Nonetheless, we also hold that court-issued findings that
direct a party to prepare a final order memorializing those find-
ings, and to submit that order to an opposing party for approval
before submitting it to the court, are not a final determination of
the rights of the parties and do not become a final order or judg-
ment if file stamped. To the extent that the Court of Appeals’
majority opinion in Peterson v. Peterson37 provides otherwise,
it is disapproved. Instead, we agree with the dissenting opinion
in Peterson, that “there [must] first be a final determination of
the rights of the parties before there is a judgment to be either
rendered or entered” and that in circumstances such as these,
the court’s preliminary findings “are not the final determination
of the rights of the parties and the final determination will be
made only after counsel prepares a decree in conformance with
the findings, submits the same to opposing counsel for approval,
and then to the court for rendition and entry.”38
[7] Therefore, we conclude that James’ assignment of error
has merit, and the Court of Appeals erred in dismissing his
appeal. Upon reversing a decision of the Court of Appeals,
we may consider, as we deem appropriate, some or all of the
assignments of error the Court of Appeals did not reach.39 but
35 See Hosack, supra note 3, 267 Neb. at 940, 678 N.W.2d at 752-53. Accord
City of Ashland, supra note 22.
36 Id.
37 Peterson v. Peterson, 14 Neb. App. 778, 714 N.W.2d 793 (2006).
38 Id. at 787-88, 714 N.W.2d at 800 (Irwin, Judge, dissenting) (emphasis in
original).
39 See Hosack, supra note 3.
WAgNeR v. WAgNeR 	701
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702 	275 NebRASkA RePORTS
due to its jurisdictional conclusion, the Court of Appeals did
not reach any of James’ assignments of error, and we conclude
that under these circumstances, it is appropriate for the Court of
Appeals to consider James’ arguments in the first instance.40
CONCLUSION
based on the foregoing reasoning, we reverse the decision
of the Court of Appeals, and remand the cause to the Court of
Appeals for consideration of the merits of James’ appeal.
R eveRsed and ReManded foR
fuRtheR pRoceedings .
40 See In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758
(2005).
lexington insuRance coMpany et al .,
appellants , v . entRex coMMunication
seRvices , inc . et al ., appellees .
749 N.W.2d 124
Filed May 16, 2008. 	No. S-06-1452.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Contracts. The meaning of a contract is a question of law.
4. Contracts: Public Policy. The determination of whether a contract violates public
policy is a question of law.
5. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusions
reached by the trial court.
6. Contracts: Subrogation: Waiver: Negligence. A contractual waiver of subroga-
tion is enforceable against gross negligence claims.
7. Contracts. A contract written in clear and unambiguous language is not subject
to interpretation or construction and must be enforced according to its terms.