Weber v. Gas 'N Shop

A rleen M. Weber , AppellAnt And cross -Appellee , v.
GAs ’n shop, I nc., And eMployers MutuAl coMpAnIes ,
Appellees And cross -AppellAnts.
767 N.W.2d 746
Filed July 2, 2009. 	No. S-08-1105.
1. Statutes. Statutory interpretation is a question of law.
2. 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.
3. Judgments: Final Orders: Words and Phrases. A conditional judgment is an
order purporting to be a final judgment which is dependent upon the occurrence
of uncertain future events. Such a judgment is wholly void because it does not
perform in praesenti and leaves to speculation and conjecture what its final effect
may be.
4. Workers’ Compensation: Courts: Judgments: Limitations of Actions. The
date on which a workers’ compensation award is filed in a district court pursuant
to Neb. Rev. Stat. § 48-188 (Cum. Supp. 2008) is the date of the judgment for
purposes of computing when the judgment becomes dormant under Neb. Rev.
Stat. § 25-1515 (Reissue 2008).
5. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
6. ____. An appellee’s argument that a lower court’s decision should be upheld on
grounds specifically rejected below constitutes a request for affirmative relief,
and the appellee must cross-appeal in order for that argument to be considered.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
MArlon A. polk, Judge. Reversed and remanded for further
proceedings.
Jerold V. Fennell and Michael J. Dyer, of Dyer Law, P.C.,
L.L.O., for appellant.
Jeffrey J. Blumel and Tyler P. McLeod, of Abrahams, Kaslow
& Cassman, L.L.P., for appellees.
heAvIcAn, c.J., G errArd, stephAn, MccorMAck , and MIller-
lerMAn, JJ.
stephAn, J.
This appeal presents legal issues decided in Allen v. Immanuel
Med. Ctr.1 Applying the principles of that case, we conclude
1 Allen v. Immanuel Med. Ctr., ante p. 41, 767 N.W.2d 502 (2009).
WeBeR v. gAS ’N ShOP 	49
Cite as 278 Neb. 49
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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that the workers’ compensation award which is the subject of
this appeal was not dormant when garnishment proceedings
were commenced. We therefore reverse, and remand for fur-
ther proceedings.
BACKgROUND
Arleen M. Weber filed a workers’ compensation action
alleging that she sustained a compensable injury to her right
knee while employed by gas ’N Shop in March 1991. On
September 22, 1993, the Workers’ Compensation Court entered
an award which was affirmed by a review panel on February
25, 1994. Weber was awarded benefits of $255 per week for
temporary total disability from September 1, 1992, through
September 1, 1993, “and thereafter and in addition thereto a
like sum per week for so long in the future as [she] remains
temporarily totally disabled.” The award further provided that
“[w]hen [Weber] reaches maximum medical improvement,
she shall be entitled to the statutory amounts for any resid-
ual disability.”
Weber filed the compensation award with the district court
for Douglas County on May 16, 2008. On June 10, she com-
menced a garnishment proceeding against UMB Bank, alleg-
ing it held funds belonging to employers Mutual Companies
(eMC), which was the workers’ compensation insurer for gas
’N Shop at the time of Weber’s injury. In the garnishment pro-
ceeding, Weber claimed that $184,875 was due on the compen-
sation award.
eMC and gas ’N Shop filed a motion to dismiss the garnish-
ment proceeding. In their motion, they asserted seven defenses:
(1) The compensation award was a conditional judgment and
wholly void; (2) the compensation award was dormant; (3)
eMC and gas ’N Shop had complied with all the terms of the
award; (4) Weber’s claim was barred by the statute of limita-
tions; (5) Weber’s claim was barred by res judicata and issue
preclusion; (6) Weber’s claim was barred by estoppel, laches,
acquiescence, inexcusable neglect, and unclean hands; and (7)
Weber’s claim violated the rights of eMC and gas ’N Shop to
due process.
An evidentiary hearing was held on the motion to dismiss.
The evidence received at the hearing established that eMC
50 	278 NeBRASKA RePORTS

received a letter from Weber’s treating physician dated March
9, 1994, in which the physician indicated that Weber had
reached maximum medical improvement as of his last exami-
nation on January 18, 1994. The physician gave Weber a 10-
percent permanent disability rating to her right lower extremity.
Upon receipt of this information, eMC sent Weber’s attorney
a draft in the amount of $18,396.47, representing 721⁄7 weeks
of temporary total disability benefits from September 1, 1992,
through January 18, 1994. eMC also sent Weber’s attorney a
draft in the amount of $2,550, representing 10 weeks of per-
manent partial disability benefits for the period of January 19
through March 29, 1994. In its transmittal letter, eMC indi-
cated that it would continue to pay permanent partial disability
benefits at the rate of $255 per week for an additional 111⁄2
weeks, based upon the 10-percent disability rating.
eMC subsequently received a second report from Weber’s
treating physician, dated March 31, 1995, indicating that he
had seen Weber again for continued problems with her knee,
but that she had reached maximum medical improvement. The
physician revised Weber’s disability rating to 20 percent. Upon
receipt of this report, eMC sent another letter to Weber’s attor-
ney setting forth the additional benefits it would pay to Weber.
In total, eMC paid Weber $18,396.47 in temporary total dis-
ability benefits for the period of September 1, 1992, through
January 18, 1994; $5,500.61 in permanent partial disability
benefits for the period of January 19 through June 18, 1994;
$5,100 in temporary total disability benefits for the period of
July 15 through December 1, 1994; and $5,464.40 in perma-
nent partial disability benefits for the period of December 2,
1994, through April 30, 1995. eMC also paid various medi-
cal and hospital expenses incurred by Weber between 1993
and 2008.
From the time of the final payment of disability benefits to
Weber in April 1995 until January 2008, neither Weber nor
her attorney contacted eMC to dispute the amount of benefits
paid pursuant to the award. In January 2008, Weber’s attorney
advised eMC that Weber was claiming additional disability
benefits, penalties, interest, and attorney fees, pursuant to the
1993 award.
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The district court granted eMC’s motion to dismiss the
garnishment proceeding. The court reasoned that the workers’
compensation award became dormant pursuant to Neb. Rev.
Stat. § 25-1515 (Reissue 2008) in April 2000, 5 years after
the last payment to Weber was made, and that it had not been
revived by the Workers’ Compensation Court. The court did
not address any of the other defenses asserted in the motion
to dismiss.
Weber perfected this timely appeal, and we granted her peti-
tion to bypass the Court of Appeals.
ASSIgNMeNTS OF eRROR
Weber assigns, restated and consolidated, that the district
court erred as a matter of law when it held that the compensa-
tion award became dormant pursuant to § 25-1515 and when it
held that revival of the compensation award must occur in the
Workers’ Compensation Court.
eMC and gas ’N Shop cross-appeal, assigning that the trial
court erred in failing to find that the compensation award was a
conditional judgment and thus was wholly void and unenforce-
able. eMC and gas ’N Shop also argue that we can affirm the
district court’s dismissal of the garnishment proceeding based
on any of the defenses they raised to the district court.
STANDARD OF ReVIeW
[1,2] Statutory interpretation is a question of law.2 When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusions
reached by the trial court.3
ANALYSIS
AWArd WAs not voId
[3] In their cross-appeal, eMC and gas ’N Shop argue that
the compensation award was void ab initio as a conditional
judgment. A conditional judgment is an order purporting to
2 In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009); In re Interest
of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758 (2005).
3 Gavin v. Rogers Tech. Servs., 276 Neb. 437, 755 N.W.2d 47 (2008); New
Tek Mfg. v. Beehner, 275 Neb. 951, 751 N.W.2d 135 (2008).
52 	278 NeBRASKA RePORTS

be a final judgment which is dependent upon the occurrence
of uncertain future events.4 Such a judgment is wholly void
because it does not perform in praesenti and leaves to specu-
lation and conjecture what its final effect may be.5 Weber’s
workers’ compensation award performed in praesenti because
it required immediate payment of temporary total disability
benefits in the amount of $255 per week. The award was not
void as a conditional judgment or order.
eMC and gas ’N Shop also argue in their cross-appeal that
the award is not sufficiently definite so as to be enforceable
through garnishment. In Lenz v. Lenz,6 we held that a judgment
for money must specify with definiteness and certainty the
amount for which it is rendered and that where external proof
and another hearing are necessary to establish the existence or
extent of a party’s liability to permit execution, the judgment
is not enforceable. The judgment in Lenz required a spouse to
pay the costs of his hearing-impaired child’s special schooling
and was not more definite as to the amounts. here, however,
the award is quite different. It clearly awards temporary total
disability benefits of $255 per week, followed by statutory
benefits for any residual disability after Weber reached maxi-
mum medical improvement. We conclude that the award is suf-
ficiently definite and certain to be enforceable.
AWArd WAs not dorMAnt
[4] The district court concluded that the award became dor-
mant in April 2000, 5 years after the last payment of benefits.
We held in Allen v. Immanuel Med. Ctr.7 that the date on which
a workers’ compensation award is filed in a district court pur-
suant to Neb. Rev. Stat. § 48-188 (Cum. Supp. 2008) is the
date of the judgment for purposes of computing when the judg-
ment becomes dormant under § 25-1515. here, the workers’
4 See, Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006);
Garcia v. Platte Valley Constr. Co., 15 Neb. App. 357, 727 N.W.2d 698
(2007).
5 Id.
6 Lenz v. Lenz, 222 Neb. 85, 382 N.W.2d 323 (1986).
7 Allen v. Immanuel Med. Ctr., supra note 1.
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compensation award was filed in the district court on May 16,
2008, and it was not dormant when the garnishment proceeding
was commenced less than a month later.
other defenses
As noted, eMC and gas ’N Shop sought dismissal of the
garnishment proceeding based upon several alternative theories
of defense. In addition to those defenses which we have dis-
cussed, eMC and gas ’N Shop contended that they had fully
complied with all terms of the award, that the garnishment
proceeding was barred by the statute of limitations, and that
the doctrines of res judicata, issue preclusion, estoppel, laches,
acquiescence, inexclusable neglect, and unclean hands barred
the garnishment proceeding. eMC and gas ’N Shop also
alleged that garnishment would violate their due process rights,
in that Weber relied on certain court decisions which postdated
her award. In this appeal, eMC and gas ’N Shop contend that
this court can rely upon any of these defenses as an alternative
ground for affirming the judgment of the district court. Weber,
however, argues that we should not consider these issues,
because they were not decided by the district court and not
raised by cross-appeal.
[5,6] An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.8
An appellee’s argument that a lower court’s decision should
be upheld on grounds specifically rejected below constitutes
a request for affirmative relief, and the appellee must cross-
appeal in order for that argument to be considered.9 here, the
alternative defenses were presented to the district court, but the
court did not reach or decide their merits. Accordingly, there
was no ruling on these defenses from which a cross-appeal
could have been taken. In order to preserve each party’s right
to meaningful appellate review of issues presented to but not
decided by the district court, we decline to decide such issues
in the first instance. Instead, we remand to the district court
8 Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
9 Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756
(2002).
54 	278 NeBRASKA RePORTS

with directions to consider and decide whether the garnishment
proceeding is barred by any of the alternative defenses asserted
by eMC and gas ’N Shop. This determination should be made
on the existing record, unless the parties agree that the record
may be reopened and expanded. We express no opinion as to
the merit of any of the defenses.
CONCLUSION
For the reasons discussed, we reverse the judgment of the
district court and remand for further proceedings as directed in
this opinion.
reversed And reMAnded for
further proceedInGs.
WrIGht, J., participating on briefs.
connolly, J., not participating.
WeBeR v. gAS ’N ShOP 	55
Cite as 278 Neb. 49