Wright v. Omaha Pub. Sch. Dist.

action taken because of the Form U-5 filing. We rejected that
argument in Knights of Columbus Council 3152.21 Because the
appellants failed to allege that they received statements made
in the Form U-5, the court did not err in (1) granting KFS BD
summary judgment, (2) excluding exhibit 30, and (3) denying
leave to file a third amended complaint.
VI. CONCLUSION
We conclude that the appellants’ negligent misrepresentation
claim fails as a matter of law. We reverse, however, the court’s
order dismissing the appellants’ fraudulent misrepresentation
and fraudulent concealment claims. And we reverse the court’s
dismissal of their claim against Mutual to the extent that the
appellants premised their claim upon Mutual’s direct participa-
tion in Kirkpatrick Pettis’ alleged misrepresentations or fraudu-
lent concealment. We remand the cause for further proceedings
consistent with this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
Wright and stephAn, JJ., not participating.
21 See id.
WrIght v. OMAhA PUB. SCh. DISt. 	941
Cite as 280 Neb. 941
feliciA Wright, individuAlly And As speciAl A dministrAtor
of the estAte of chAsity Wright, AppellAnt, v.
omAhA public school district, Appellee .
portiA denAy loyd, A minor , by And through her mother
And next friend, deidrA loyd, AppellAnt, v.
omAhA public school distrct, Appellee .
791 N.W.2d 760
Filed December 10, 2010. 	Nos. S-10-048, S-10-067.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
2. ____: ____. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

3. ____: ____. An appellate court acquires no jurisdiction unless the appellant has
satisfied the statutory requirements for appellate jurisdiction.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken. Conversely, an appellate court is without jurisdiction
to entertain appeals from nonfinal orders.
5. Jurisdiction: Appeal and Error. When an appellate court is without jurisdiction
to act, the appeal must be dismissed.
Appeals from the District Court for Douglas County: sAndrA
l. dougherty, Judge. Appeals dismissed.
Melany S. O’Brien and terry Anderson, of hauptman,
O’Brien, Wolf & Lathrop, P.C., Christopher P. Welsh and
James r. Welsh, of Welsh & Welsh, P.C., L.L.O., and Mandy
L. Strigenz, of Sibbernsen & Strigenz, P.C., for appellants.
Patrick B. Donahue and ronald F. Krause, of Cassem,
tierney, Adams, gotch & Douglas, for appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
stephAn, J.
In these consolidated actions, appellants alleged that the
Omaha Public School District (OPS) negligently failed to pro-
tect two of its students from harm. they appeal from orders of
the district court entering summary judgment in favor of OPS
in each case. We conclude that because the notices of appeal
were untimely filed, we lack jurisdiction to reach the substan-
tive issues presented.
BACKgrOUND
Separate complaints were filed in the district court for
Douglas County by Felicia Wright (Wright), individually and as
special administrator of the estate of Chasity Wright (Chasity),
deceased, and by Portia Denay Loyd (Portia), a minor, by and
through her mother and next friend, Deidra Loyd (Loyd). the
defendants in each action were OPS and Simmonds restaurant
Management, Inc., doing business as Burger King (Simmonds).
the cases arose from an incident which occurred on June 25,
2004. On that day, Chasity and Portia were attending summer
school at Omaha South high School. During their lunch break,
942 	280 NeBrASKA rePOrtS

they left the school building and went to a nearby restaurant
operated by Simmonds. In the parking lot of the restaurant,
Chasity and Portia were assaulted by four or five females, at
least two of whom had also attended classes at Omaha South
high School that day. Chasity died from an asthma attack pre-
cipitated by the assault, and Portia sustained injuries.
In their complaints, appellants alleged that OPS was neg-
ligent in failing to protect Chasity and Portia from harm and
that Simmonds was negligent in failing to take measures to
prevent the assaults on its premises. OPS and Simmonds filed
answers denying that they were negligent. Simmonds also filed
a third-party complaint against one of the alleged perpetrators
of the assault.
On March 31, 2009, the district court entered summary judg-
ment in favor of OPS in each case, reasoning that “OPS did not
owe a duty to supervise and protect Chasity and Portia from
the off-campus assault . . . as the assault was unforeseeable as a
matter of law.” On June 30, the district court overruled motions
to reconsider filed in each case, specifically stating, “this
order shall not be considered a final judgment for purposes of
appeal as defined in § 25-1315 (r.r.S. 2008).” On January 4,
2010, the district court entered orders pursuant to stipulations
dismissing each case with prejudice as to Simmonds only.
Wright filed a notice of appeal on January 13, and Portia filed
a notice of appeal on January 20. Both notices indicated that
the appeals were taken from the orders sustaining the motions
for summary judgment filed by OPS. Neither party challenged
the dismissal of Simmonds.
On March 12, 2010, the Court of Appeals summarily dis-
missed both appeals for lack of jurisdiction because there had
been no adjudication of the third-party complaint and there
had been no express determination pursuant to Neb. rev. Stat.
§ 25-1315 (reissue 2008). In both appeals, appellants filed
motions for rehearing which included, as attached exhibits,
orders entered by the district court on March 19 dismissing
the third-party complaints. those orders were subsequently
included in supplemental transcripts filed in each appeal.
On April 27, 2010, the Court of Appeals entered in each
appeal a minute order which stated:
WrIght v. OMAhA PUB. SCh. DISt. 	943
Cite as 280 Neb. 941

Motion of appellant for rehearing sustained in part; appeal
reinstated and jurisdictional issue reserved pending final
submission of appeal. Parties directed to address juris-
dictional issue in their briefing on appeal. See Neb. rev.
Stat. § 25-1912(2) (reissue 2008); Ferer v. Aaron Ferer &
Sons Co., 16 Neb. App. 866, 755 N.W.2d 415 (2008).
On the same date, the Court of Appeals consolidated the two
appeals for purposes of briefing, oral argument, and disposi-
tion. We subsequently moved the consolidated appeals to our
docket on our own motion, based on our statutory authority to
regulate the caseloads of the appellate courts of this state.1
ASSIgNMeNtS OF errOr
Appellants assign, restated, that the district court erred in
(1) sustaining a motion in limine filed by OPS, (2) finding that
OPS had no duty as a matter of law to supervise and protect
Chasity and Portia, (3) finding that the assault was not foresee-
able as a matter of law, and (4) granting OPS’ motion for sum-
mary judgment.
StANDArD OF reVIeW
[1,2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to settle jurisdictional issues
presented by a case.2 A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as
a matter of law.3
ANALYSIS
[3,4] An appellate court acquires no jurisdiction unless the
appellant has satisfied the statutory requirements for appellate
jurisdiction.4 generally, for an appellate court to acquire juris-
diction of an appeal, there must be a final order entered by the
1 See Neb. rev. Stat. § 24-1106(3) (reissue 2008).
2 In re Estate of Hockemeier, ante p. 420, 786 N.W.2d 680 (2010); Miller v.
Regional West Med. Ctr., 278 Neb. 676, 772 N.W.2d 872 (2009).
3 Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005); In re
Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d
142 (2004).
4 In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
944 	280 NeBrASKA rePOrtS

court from which the appeal is taken. Conversely, an appellate
court is without jurisdiction to entertain appeals from nonfinal
orders.5 the question of when final orders were entered in
these cases is governed by § 25-1315(1), which provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
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 the
entry of judgment. In the absence of such determina-
tion 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, and the order or other form of deci-
sion is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
In cases involving multiple claims or parties, we have inter-
preted this statute to require
an explicit adjudication with respect to all claims or par-
ties or, failing such explicit adjudication of all claims
or parties, an express determination that there is no just
reason for delay of an appeal of an order disposing of
less than all claims or parties and an express direction
for the entry of judgment as to those adjudicated claims
or parties.6
In these cases, the district court did not make a determina-
tion pursuant to § 25-1315 when it entered summary judgment
for OPS in each case, and it specifically stated that its orders
overruling the motions to reconsider entry of summary judg-
ment were not final orders as defined by § 25-1315. Nor did
the district court make determinations pursuant to § 25-1315
5 State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703
N.W.2d 905 (2005).
6 Malolepszy v. State, supra note 3, 270 Neb. at 108, 699 N.W.2d at 392.
WrIght v. OMAhA PUB. SCh. DISt. 	945
Cite as 280 Neb. 941

when it ordered the dismissal of Simmonds on January 4, 2010.
thus, when the notices of appeal were filed on January 13 and
January 20, the cases stood in the same procedural posture as
in Malolepszy v. State,7 where we held that the pendency of an
unresolved third-party complaint in the absence of a determina-
tion and direction pursuant to § 25-1315(1) precluded our juris-
diction over an appeal from the entry of summary judgment in
favor of the defendant.
Finality was achieved in these cases on March 19, 2010,
when the district court entered orders dismissing the third
party complaints. Neb. rev. Stat. § 25-1912(1) (reissue 2008)
provides that in order to obtain appellate reversal of a judg-
ment or final order entered by a district court, a party must
file a notice of appeal “within thirty days after the entry of
such judgment, decree, or final order.” In these cases, there
were no notices of appeal filed after the entry of the final
orders on March 19. Appellants rely upon the notices of appeal
which they filed before entry of that order to establish appel-
late jurisdiction.
the Nebraska Court of Appeals addressed a similar sequence
of events in Ferer v. Aaron Ferer & Sons Co.8 In that case, a
notice of appeal was filed from a summary judgment order
which disposed of some but not all of the appellant’s claims
and the district court did not make a determination pursuant to
§ 25-1315. In response to a show cause order entered by the
Court of Appeals, the appellant produced an order from the dis-
trict court dismissing all claims against all defendants and indi-
cating that its prior order was intended to have this effect. the
appellant did not file a new notice of appeal after this order, but
argued that his previously filed notice of appeal related forward
under § 25-1912(2), which provides:
A notice of appeal or docket fee filed or deposited after
the announcement of a decision or final order but before
the entry of the judgment, decree, or final order shall be
7 See id.
8 Ferer v. Aaron Ferer & Sons Co., 16 Neb. App. 866, 755 N.W.2d 415
(2008).
946 	280 NeBrASKA rePOrtS

treated as filed or deposited after the entry of the judg-
ment, decree, or final order and on the date of entry.
In rejecting this argument, the Court of Appeals held that
§ 25-1912(2) applied only to the specific circumstance of a
notice of appeal filed after the announcement of a decision
or final order, but before entry of judgment, and was “not
intended to validate anticipatory notices of appeal filed prior to
the announcement of a final judgment.”9
Appellants attempt to distinguish their cases from Ferer by
arguing that the Court of Appeals reinstated these appeals in
response to their motions for rehearing. they rely upon State
v. Craig,10 in which the Court of Appeals dismissed for lack
of jurisdiction, but then reinstated the appeal in response to
the appellant’s motion for rehearing. But in its opinion, the
Court of Appeals specifically analyzed the order from which
the appeal was taken and concluded that it constituted a final
and appealable order. the notice of appeal was filed on the day
after the order was entered. the reinstatement of the appeal in
Craig was irrelevant to the court’s ultimate determination that
there was a final, appealable order from which a timely appeal
was taken. thus, Craig provides no support for appellants’
argument that this case is distinguishable from Ferer.
Nor are we persuaded by appellants’ argument that any
jurisdictional defect was in some way resolved by the Court
of Appeals’ reinstatement of these appeals in response to the
motions for rehearing. We note that the reinstatement orders
were entered on April 27, 2010, more than 30 days following
the final orders entered by the district court on March 19, so
there is no basis for any argument that appellants were some-
how led to believe that they were not required to file timely
notices of appeal after the final orders of the district court. to
the contrary, the orders reinstating these appeals specifically
reserved the jurisdictional issue “pending final submission of
appeal” and directed the parties to address the jurisdictional
issue in their briefs.
9 Id. at 870, 755 N.W.2d at 418.
10 State v. Craig, 15 Neb. App. 836, 739 N.W.2d 206 (2007).
WrIght v. OMAhA PUB. SCh. DISt. 	947
Cite as 280 Neb. 941

Finally, appellants cite cases from other jurisdictions in
support of their argument that reinstatement of an appeal fol-
lowing dismissal necessarily cures a jurisdictional defect. We
need not discuss those cases, because the question of appellate
jurisdiction in the cases before us is necessarily dependent
upon the provisions of Nebraska statutes as interpreted and
applied by the appellate courts of this state. We conclude that
the reasoning of the Nebraska Court of Appeals in Ferer is
correct and directly applicable to the jurisdictional issue pre-
sented in these appeals. Notices of appeal were not filed within
30 days after entry of the final orders on March 19, 2010, as
required by § 25-1912(1), and therefore we do not have appel-
late jurisdiction.
CONCLUSION
[5] When an appellate court is without jurisdiction to act,
the 	appeal 	must 	be 	dismissed.11 Accordingly, 	we 	dismiss
these appeals.
A ppeAls dismissed.
11 Malolepszy v. State, supra note 3; In re Guardianship & Conservatorship
of Woltemath, supra note 3.
948 	280 NeBrASKA rePOrtS