Connelly v. City of Omaha

we have found to be “in custody” for purposes of postcon
viction relief.
Parolees, for example, although not in the State’s physi
cal custody, are still under the jurisdiction of the Nebraska
Board of Parole and face returning to prison if their parole is
revoked. See Thomas, supra. Conditions of parole may forbid
an individual from leaving a geographical area without permis
sion, require that the individual remain employed, require the
individual to submit to medical or psychological treatment, or
forbid the individual from associating with certain persons.
See id. SORA registrants are not subject to such limitations.
Accordingly, York is no longer in custody in Nebraska under a
Nebraska sentence and his appeal is moot.
CONCLUSION
Postconviction relief is available only to a prisoner in actual
custody, on parole, or on probation in Nebraska under a
Nebraska sentence. Relief is not extended to individuals who
are no longer in custody but are subject to noncustodial regis
tration requirements pursuant to the SORA. Because York is no
longer in custody in Nebraska under a Nebraska sentence, his
appeal is dismissed as moot.
A ppeAl dismissed.
CONNeLLY v. CItY Of OmAhA 	311
Cite as 278 Neb. 311
K elly JeAn C onnelly And TimoThy JAmes C onnelly,
wife And husbAnd And nATurAl guArdiAns of
rAChel And C helseA C onnelly, Appellees ,
v. C iTy of omAhA, AppellAnT.
769 N.W.2d 394
filed August 7, 2009. 	No. S 08 1011.
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. ____: ____. Before reaching the legal issues presented for review, it is the duty
of an appellate court to settle jurisdictional issues presented by a case.
3. ____: ____. Notwithstanding whether the parties raise the issue of jurisdiction,
an appellate court has a duty to raise and determine the issue of jurisdiction
sua sponte.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

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. Final Orders: Words and Phrases. the term “final judgment” as used in Neb.
Rev. Stat. § 25 1315(1) (Reissue 2008) is the functional equivalent of a “final
order” within the meaning of Neb. Rev. Stat. § 25 1902 (Reissue 2008).
6. Jurisdiction: Final Orders: Appeal and Error. A “final order” is a prerequisite
to an appellate court’s obtaining jurisdiction of an appeal initiated pursuant to
Neb. Rev. Stat. § 25 1315(1) (Reissue 2008).
7. Actions: Parties: Final Orders: Words and Phrases. With the enactment of
Neb. Rev. Stat. § 25 1315(1) (Reissue 2008), one may bring an appeal pursuant
to such section only when (1) multiple causes of action or multiple parties are
present, (2) the court enters a final order within the meaning of Neb. Rev. Stat.
§ 25 1902 (Reissue 2008) as to one or more but fewer than all of the causes of
action or parties, and (3) the trial court expressly directs the entry of such final
order and expressly determines that there is no just reason for delay of an imme
diate appeal.
8. Final Orders: Appeal and Error. to be appealable, an order must satisfy the
final order requirements of Neb. Rev. Stat. § 25 1902 (Reissue 2008) and, addi
tionally, where implicated, Neb. Rev. Stat. § 25 1315(1) (Reissue 2008).
9. Negligence: Liability: Damages: Final Orders: Appeal and Error. In negli
gence actions, an interlocutory summary adjudication of liability alone, which
does not decide the question of damages, is not a final, appealable order.
10. Final Orders. to be final, an order must ordinarily dispose of the whole merits
of the case.
11. Trial: Judges. A trial judge has broad discretion over the conduct of a trial, and,
absent abuse, that discretion should be respected.
12. Trial: Parties. Bifurcation of a trial may be appropriate where separate proceed
ings will do justice, avoid prejudice, and further the convenience of the parties
and the court.
Appeal from the District Court for Douglas County: pATriCiA
A. lAmberTy, Judge. Order vacated, and appeal dismissed.
thomas 	mumgaard, 	Deputy 	Omaha 	City Attorney, 	for
appellant.
thomas m. Locher, Ralph A. froehlich, and timothy m.
morrison, of Locher, Pavelka, Dostal, Braddy & hammes,
L.L.C., for appellees.
heAviCAn, C.J., wrighT, C onnolly, gerrArd, sTephAn, and
miller-lermAn, JJ.
312 	278 NeBRASkA RePORtS

gerrArd, J.
timothy James Connelly took his two daughters sledding
in Omaha’s memorial Park. the two girls suffered significant
injuries when their sled collided with a tree. timothy and his
wife, kelly Jean Connelly, sued the City of Omaha (City), and
they brought a separate action on behalf of the children that
was consolidated with timothy and kelly’s action.
timothy and kelly’s case (but not the children’s) went to
trial on the issue of liability, which was bifurcated from the
issue of damages. evidence on damages was not received. the
district court entered judgment against the City on liability but
did not make a determination as to damages. the City moved
for certification of a final judgment pursuant to Neb. Rev.
Stat. § 25 1315 (Reissue 2008), and when that was granted by
the district court, the City filed a notice of appeal. the first
issue we must decide is whether an adjudication of liability
alone, which does not decide the question of damages, is a
final, appealable order subject to appellate certification under
§ 25 1315. Applying long established principles, we conclude
that such an interlocutory order is neither final nor appealable;
thus, we vacate the court’s order and dismiss the appeal.
fACtUAL BACkGROUND
In the afternoon of December 29, 2000, timothy took his
5 year old and 10 year old daughters to memorial Park to go
sledding. When they arrived, timothy surveyed the area, saw
other people sledding, and chose a spot for his children to
begin sledding. timothy noted some trees on the right, left, and
bottom of the sledding hill. the children got into their saucer
like sled and proceeded down the hill. the sled veered to the
right, and the girls collided with a tree. As a result of the colli
sion, both girls were injured.
timothy and kelly (who is the children’s mother) filed
suit against the City for the injuries suffered by the children
while sledding at memorial Park. the complaint lists five
causes of action: (1) willful negligence, (2) loss of services,
(3) negligent infliction of emotional distress upon timothy,
(4) negligent infliction of emotional distress upon kelly, and
(5) negligence. timothy and kelly sought damages for past
CONNeLLY v. CItY Of OmAhA 	313
Cite as 278 Neb. 311

and future medical costs and services, in addition to general
damages for their negligent infliction of emotional distress
causes of action.
After a bench trial in march 2006, the court found that the
City was liable for the children’s injuries under Nebraska’s
Recreation Liability Act.1 trial on the issue of liability was
bifurcated from the issue of damages, and evidence of dam
ages was not received. the court found that there was insuf
ficient evidence to support either parent’s negligent infliction
of emotional distress claim. And the court found no affirmative
defenses applicable, except for 25 percent contributory neg
ligence by timothy. the court did not make a determination
as to damages. Shortly after this initial proceeding, a second
action was filed on behalf of the children, seeking general dam
ages arising out of the same accident. the children’s case was
consolidated with their parents’ action.
All the parties filed motions for partial summary judgment,
raising several issues. In ruling favorably on the plaintiffs’
motions for partial summary judgment, the court determined
that each of the four plaintiffs could recover up to the individ
ual statutory damages cap set forth in the Political Subdivisions
tort Claims Act.2 the court found that timothy’s negligence
would not be imputed to the other plaintiffs and that timothy
and kelly’s younger daughter could not be contributorily neg
ligent as a matter of law due to her age. the court also deter
mined that our decision in Bronsen v. Dawes County3 would
be applied retroactively. the court, however, rejected timothy
and kelly’s motion for summary judgment on their claim for
loss of parental consortium and addressed the application of
res judicata and collateral estoppel to the children’s case. the
City’s motions for partial summary judgment and motion to
amend the judgment were overruled.
Although the court had addressed a number of issues, there
still had been no trial on timothy and kelly’s damages, and no
1 Neb. Rev. Stat. §§ 37 729 to 37 736 (Reissue 2004).
2 Neb. Rev. Stat. §§ 13 901 to 13 927 (Reissue 1997 & Cum. Supp. 2002).
See § 13 926 (Reissue 2007).
3 Bronsen v. Dawes County, 272 Neb. 320, 722 N.W.2d 17 (2006).
314 	278 NeBRASkA RePORtS

trial on liability or damages in the children’s case. Nonetheless,
the City moved for the court to “enter a final judgment on the
issue of liability” pursuant to § 25 1315. the district court sus
tained the motion, reasoning that judicial efficiency would be
served because the trial on damages was likely to be onerous.
the court certified a final judgment with respect to the City’s
liability, the application of Bronsen, and the denial of the City’s
motion for partial summary judgment. the City appeals only
the court’s finding of negligence.
the Court of Appeals ordered the parties to brief the juris
dictional issue and application of Cerny v. Todco Barricade
Co.4 to the district court’s § 25 1315 order. We later moved
the case to our docket on our own motion. the parties argue
that we have jurisdiction even though there is no finding as to
timothy and kelly’s damages or findings on liability or dam
ages in the children’s case.
ASSIGNmeNtS Of eRROR
the City assigns, as consolidated and restated, that the dis
trict court erred in finding the City was negligent, rejecting the
City’s affirmative defenses, and finding that the City’s negli
gence was greater than timothy’s.
StANDARD Of ReVIeW
[1] A jurisdictional question which does not involve a fac
tual dispute is determined by an appellate court as a matter
of law.5
ANALYSIS
Trial Court Erred in Certifying Its Interlocutory
Adjudication of Liability as Final,
Appealable Order.
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to settle jurisdictional issues
4 Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
5 Dominguez v. Eppley Transp. Servs., 277 Neb. 531, 763 N.W.2d 696
(2009).
CONNeLLY v. CItY Of OmAhA 	315
Cite as 278 Neb. 311

presented by a case.6 Notwithstanding whether the parties raise
the issue of jurisdiction, an appellate court has a duty to raise
and determine the issue of jurisdiction sua sponte.7
[4] 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.8
here, the district court’s order granting partial summary judg
ment reserved issues for later disposition, including the issue
of monetary damages and liability in the children’s case. thus,
the initial issue presented is whether the district court’s order
was a final order from which an appeal could be taken.
Section 25 1315(1) provides that
[w]hen 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.
Section 25 1315 permits a judgment to become final only
under the limited circumstances set forth in the statute.9 By its
6 Nebraska Dept. of Health & Human Servs. v. Weekley, 274 Neb. 516, 741
N.W.2d 658 (2007).
7 Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763
N.W.2d 77 (2009).
8 Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
9 Cerny, supra note 4.
316 	278 NeBRASkA RePORtS

terms, § 25 1315(1) is implicated only where multiple causes
of action are presented or multiple parties are involved, and
a final judgment is entered as to one of the parties or causes
of action.10
[5,6] the term “final judgment” as used in § 25 1315(1) is
the functional equivalent of a “final order” within the mean
ing of Neb. Rev. Stat. § 25 1902 (Reissue 2008).11 A “final
order” is a prerequisite to an appellate court’s obtaining juris
diction of an appeal initiated pursuant to § 25 1315(1).12 In
other words, an order that was not appealable under § 25 1902
before § 25 1315 was enacted did not become appealable after
§ 25 1315 was enacted.13
[7,8] thus, with the enactment of § 25 1315(1), one may
bring an appeal pursuant to such section only when (1) mul
tiple causes of action or multiple parties are present, (2) the
court enters a “final order” within the meaning of § 25 1902 as
to one or more but fewer than all of the causes of action or par
ties, and (3) the trial court expressly directs the entry of such
final order and expressly determines that there is no just reason
for delay of an immediate appeal. therefore, to be appealable,
an order must satisfy the final order requirements of § 25 1902
and, additionally, where implicated, § 25 1315(1).14
In the case at hand, we are presented with a consolidated
action involving multiple causes of action and multiple par
ties. the district court’s order granting the motion for partial
summary judgment resolved the City’s liability in the parents’
action, but left unresolved the issues of liability in the chil
dren’s case, in addition to monetary damages as to all of the
causes of action and parties. the district court’s order direct
ing final judgment pursuant to § 25 1315(1) expressly states
that “[t]rial has not been held in the children’s action,” that the
10 Id.
11 Id.
12 Id.
13 See, id.; Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696
(1997).
14 Cerny, supra note 4.
CONNeLLY v. CItY Of OmAhA 	317
Cite as 278 Neb. 311

issue of damages was bifurcated from liability issues, and that
a “bench trial addressed only the liability issue.”
[9,10] We have consistently refused jurisdiction based on the
lack of a final, appealable order in situations nearly identical to
the present case. Since at least Hart v. Ronspies,15 we have held
in negligence actions that an interlocutory summary adjudica
tion of liability alone, which does not decide the question of
damages, is not a final, appealable order. In Hart, we denied
jurisdiction where the district court rendered partial summary
judgment for the plaintiff on the issue of the defendant’s neg
ligence but reserved for trial the issues of contributory negli
gence, proximate cause, and damages.16 this is so because
no substantial right is affected by such an interlocutory deter
mination.17 Similarly, in Burke v. Blue Cross Blue Shield,18
we denied jurisdiction where the district court entered partial
summary judgment on the issue of the defendants’ liability
but retained the issue of damages for later disposition. to be
final, an order must ordinarily dispose of the whole merits of
the case.19 Simply put, we have consistently held that a finding
of liability without a determination of damages is not a final,
appealable order.20
here, no final order was entered (or determination made)
regarding damages as required by § 25 1902, and accordingly,
the court could not have directed the entry of a final judgment
within the meaning of § 25 1315(1). Because the judgment
does not dispose of the entirety of any one claim, it cannot be
made an appealable judgment by recourse to § 25 1315.21 As
we have stated, § 25 1315 does not provide “‘magic words,’”
15 Hart v. Ronspies, 181 Neb. 38, 146 N.W.2d 795 (1966).
16 Id.
17 Id.
18 Burke v. Blue Cross Blue Shield, 251 Neb. 607, 558 N.W.2d 577 (1997).
19 Id.
20 See, e.g., O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998);
Burke, supra note 18; Olsen v. Olsen, 248 Neb. 393, 534 N.W.2d 762
(1995); Grantham v. General Telephone Co., 187 Neb. 647, 193 N.W.2d
449 (1972); Hart, supra note 15.
21 Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
318 	278 NeBRASkA RePORtS

the invocation of which transforms any order into a final
judgment for purposes of appeal.22 We conclude that the court
erred in certifying its partial summary judgment as final under
§ 25 1315(1). Because the district court’s order of partial sum
mary judgment was not a final, appealable order, we are with
out jurisdiction.
Bifurcation of Trial May Be Appropriate for
Convenience of Parties and
Interest of Justice.
[11,12] finally, we observe that nothing in this opinion
should be read as undermining the fact that there are good rea
sons and appropriate circumstances to bifurcate a trial. A trial
judge has broad discretion over the conduct of a trial,23 and,
absent abuse, that discretion should be respected. Bifurcation
of a trial may be appropriate where separate proceedings will
do justice, avoid prejudice, and further the convenience of
the parties and the court.24 Bifurcation is particularly proper
where a potentially dispositive issue may be decided in such a
way as to eliminate the need to try other issues. In this case,
for instance, if the district court had determined that the City
was not liable for any of the causes of action, there would
have been no need to determine damages. And an appeal
could have appropriately been taken from such a final order.
from the record presented, it appears that the district court
exercised its discretion carefully in bifurcating the trial. the
court’s error was in certifying an interlocutory appeal (albeit
in good faith), not in bifurcating the trial proceedings in the
first place.
CONCLUSION
Without a final order, an appellate court lacks jurisdic
tion and must dismiss the appeal.25 Because § 25 1315 was
22 Keef v. State, 262 Neb. 622, 629, 634 N.W.2d 751, 758 (2001).
23 Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994).
24 See, e.g., Saxion v. Titan-C-Manufacturing, Inc., 86 f.3d 553 (6th Cir.
1996).
25 Poppert, supra note 21.
CONNeLLY v. CItY Of OmAhA 	319
Cite as 278 Neb. 311

erroneously applied, there is no final order from which an
appeal may be taken in this case. therefore, we vacate the
court’s order certifying a final judgment and, lacking jurisdic
tion, dismiss this appeal.
order vACATed, And AppeAl dismissed.
mCC ormACK, J., participating on briefs.
sTATe of nebrAsKA, Appellee , v.
dAmiAn l. Thompson, AppellAnT.
770 N.W.2d 598
filed August 7, 2009. 	No. S 08 1134.
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error appearing on
the record.
2. Criminal Law: Appeal and Error. In an appeal of a criminal case from the
county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error
or abuse of discretion.
3. Trial: Evidence. An objection based upon insufficient foundation is a gen
eral objection.
4. Trial: Evidence: Photographs. As a general rule, photographic evidence is
admissible when it is shown that it is a correct reproduction of what it purports
to depict.
5. Trial: Evidence: Appeal and Error. A trial court’s determination of the admis
sibility of physical evidence will not ordinarily be overturned except for an abuse
of discretion.
6. Appeal and Error. When an issue is raised for the first time in an appellate
court, it will be disregarded inasmuch as a lower court cannot commit error in
resolving an issue never presented and submitted to it for disposition.
7. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
8. Judgments: Trial: Evidence: Proof: Appeal and Error. In a bench trial of a
law action, including a criminal case tried without a jury, erroneous admission
of evidence is not reversible error if other relevant evidence, admitted without
objection or properly admitted over objection, sustains the trial court’s factual
findings necessary for the judgment or decision reviewed; therefore, an appel
lant must show that the trial court actually made a factual determination, or
otherwise resolved a factual issue or question, through the use of erroneously
admitted evidence in a case tried without a jury. the appellant must show that
320 	278 NeBRASkA RePORtS