Davis v. Choctaw Constr.

CONCLUSION
The Workers’ Compensation Court is a statutorily created
court and has only the authority granted to it by statute. The
Nebraska Workers’ Compensation Act does not grant the com-
pensation court the authority to enforce the collection of its
awards. Under § 48-188, a worker must seek such enforcement
through the district court. We therefore affirm the decision of
the three-judge review panel of the compensation court.
A ffirmed.
G len r. dAvis , Appellee , v. C hoCtAw C onstruCtion, inC.,
doinG business As mid -A meriCA pump & supply,
A nebrAskA CorporAtion, AppellAnt.
789 N.W.2d 698
Filed October 22, 2010. 	No. S-10-005.
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,
which requires the appellate court to reach a conclusion independent of the lower
court’s decision.
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. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat. § 25-217
(Reissue 2008) is self-executing, so that an action is dismissed by operation of
law, without any action by either the defendant or the court, as to any defendant
who is named in the action and not served with process within 6 months after the
complaint is filed.
4. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After dismissal
of an action by operation of law under Neb. Rev. Stat. § 25-217 (Reissue 2008),
there is no longer an action pending and the district court has no jurisdiction to
make any further orders except to formalize the dismissal. If any orders are made
following the dismissal, they are a nullity.
5. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
Appeal from the District Court for Adams County: stephen
r. illinGworth, Judge. Reversed and remanded with directions
to vacate and dismiss.
Robert M. Sullivan, of Sullivan, Shoemaker, Witt & Burns,
P.C., L.L.O., for appellant.
714 	280 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

Michael Mead, of Law Offices of Whelan, Scherr, Glen,
Goding & Mead, P.C., L.L.O., for appellee.
heAviCAn, 	C.J., 	wriGht, 	C onnolly, 	G errArd, 	stephAn,
mCC ormACk, and miller-lermAn, JJ.
stephAn, J.
Glen 	R. 	Davis 	brought 	this 	action 	against 	Choctaw
Construction, Inc. (Choctaw), doing business as Mid-America
Pump & Supply, alleging that his brief employment with the
company was wrongfully terminated. After a bench trial and
judgment in favor of Davis, Choctaw moved for a new trial
and for dismissal based in part upon the fact that it had not
been served with summons and a copy of the complaint within
6 months from the date the complaint was filed. The district
court overruled the motions, and Choctaw appeals.
BACkGROUND
From 1994 to 2003, Davis worked in Hawaii as an applica-
tions engineer for a company that drilled water wells. In 2002,
he began looking for employment in the continental United
States. In September 2002, Davis sent a cover letter and a
resume to Thomas Bramble, the president of Choctaw.
Bramble subsequently contacted Davis and arranged for
Davis and his wife to travel to Hastings, Nebraska. Davis met
with Bramble in Hastings in late 2002 and toured the facilities
of Mid-America Pump & Supply. Bramble also interviewed
Davis for possible employment. Davis testified that during this
interview, he told Bramble that he would accept a position only
if he was given a 3-year employment contract. According to
Davis, he left Nebraska anticipating that he would receive a
written contractual offer from Bramble.
Approximately 2 weeks later, Davis received a handwrit-
ten letter from Bramble offering Davis a job in Hastings. In
addition to stating the salary and benefits of the position, the
letter provided:
Glen, we are looking for [a] person for longterm
employment. But I understand that things change! We
would like you to commit to [at] least 3 years here but
hopeful you will stay many more!!
DAvIS v. CHOCTAW CONSTR. 	715
Cite as 280 Neb. 714

Glen, I would request a contract for this. It would be
[a] basic contract stating that you would continue employ-
ment for 3 years, and if you wanted to leave between hire
date and 18 months, you would be required to reimburse
Mid America 4000.00, from 18 months to 36 months
2000.00. This in my heart is not set in stone!
Davis construed this letter as a contract, moved to Nebraska,
and started working at Mid-America Pump & Supply in
February 2003. Choctaw paid for Davis’ moving expenses. No
other written agreement was entered into by the parties. On
May 16, 2003, Choctaw terminated Davis’ employment, citing
poor job performance as the reason for termination.
On August 15, 2005, Davis filed this action in the district
court for Adams County, seeking damages resulting from
his termination of employment under theories of breach of
contract and promissory estoppel. After two unsuccessful
attempts at service initiated by his former attorney, Choctaw
was served with summons and a copy of the complaint
on August 16, 2006, more than 1 year after the complaint
was filed. Choctaw’s first appearance in the case was on
September 7, when it filed a motion to dismiss for failure to
state a claim upon which relief could be granted. That motion
was overruled.
Following a bench trial, the district court concluded that there
was no employment contract between Choctaw and Davis, but
that Davis was entitled to recover on the theory of promissory
estoppel. The court entered judgment for Davis in the amount
of $160,657.80.
After the judgment was entered, Choctaw filed a motion for
new trial. One basis of the motion was that pursuant to Neb.
Rev. Stat. § 25-217 (Reissue 2008), the district court lacked
jurisdiction to enter the judgment because Choctaw had not
been served with a copy of the complaint within 6 months
from the date the complaint was filed. This was the first time
that the jurisdictional issue had been raised. At the hearing on
this motion, Choctaw also made an oral motion to dismiss the
action based on § 25-217. The district court overruled these
motions, and Choctaw filed this timely appeal. We moved
the appeal to our docket on our own motion pursuant to our
716 	280 NeBRASkA RePORTS

statutory authority to regulate the caseloads of the appellate
courts of this state.1
ASSIGNMeNTS OF eRROR
Choctaw assigns, restated, that the district court erred in
(1) failing to dismiss for lack of jurisdiction based on § 25-217,
(2) finding that all the elements of promissory estoppel were
proved by Davis, (3) finding that Davis was wrongfully termi-
nated, (4) calculating damages, and (5) failing to find that Davis
was an at-will employee subject to termination at any time.
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, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.2
ANALYSIS
[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 Here, Choctaw contends that pursuant to
§ 25-217, the district court lacked jurisdiction to enter judg-
ment in this case because Choctaw was not served with a copy
of the complaint within 6 months of the date the complaint
was filed.
[3,4] Section 25-217 provides: “An action is commenced
on the date the complaint is filed with the court. The action
shall stand dismissed without prejudice as to any defendant not
served within six months from the date the complaint was filed.”
This court and the Nebraska Court of Appeals have repeatedly
held that this statute is self-executing, so that an action is dis-
missed by operation of law, without any action by either 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); Davio v.
Nebraska Dept. of Health & Human Servs., ante p. 263, 786 N.W.2d 655
(2010).
3 In re Estate of Hockemeier, supra note 2; Miller v. Regional West Med.
Ctr., 278 Neb. 676, 772 N.W.2d 872 (2009).
DAvIS v. CHOCTAW CONSTR. 	717
Cite as 280 Neb. 714

defendant or the court, as to any defendant who is named in the
action and not served with process within 6 months after the
complaint is filed.4 After dismissal of an action by operation of
law under § 25-217, there is no longer an action pending and
the district court has no jurisdiction to make any further orders
except to formalize the dismissal.5 If any orders are made fol-
lowing the dismissal, they are a nullity.6
Davis attempts to distinguish the present action from all
of the prior holdings by arguing that in this case, the district
court entered a final judgment prior to the time the § 25-217
issue was raised. Davis also argues that it would be inequitable
to allow Choctaw to now raise the defense of § 25-217, when
Choctaw fully participated in the proceedings which resulted in
the judgment against it.
[5] But these arguments cannot be reconciled with the plain
language of § 25-217 and the case law regarding its applica-
tion. Because the statute is self-executing, the dismissal of the
action automatically occurred 6 months after the filing of the
complaint and no action on the part of the district court or
Choctaw was required to effect the dismissal. Therefore, there
was nothing legally before the court either when Choctaw
entered its initial appearance or when the court conducted the
trial and entered judgment. The trial proceedings are nullities,
and the district court erred in not vacating the judgment and
dismissing the action when the issue of subject matter jurisdic-
tion was raised in the postjudgment motions. Lack of subject
matter jurisdiction may be raised at any time by any party or
by the court sua sponte.7
4 See, Reid v. Evans, 273 Neb. 714, 733 N.W.2d 186 (2007); Dillion v.
Mabbutt, 265 Neb. 814, 660 N.W.2d 477 (2003); Kovar v. Habrock, 261
Neb. 337, 622 N.W.2d 688 (2001); Vopalka v. Abraham, 260 Neb. 737,
619 N.W.2d 594 (2000); Cotton v. Fruge, 8 Neb. App. 484, 596 N.W.2d 32
(1999); McDaneld v. Fischer, 8 Neb. App. 160, 589 N.W.2d 172 (1999).
5 Reid v. Evans, supra note 4; Dillion v. Mabbutt, supra note 4.
6 Reid v. Evans, supra note 4; Kovar v. Habrock, supra note 4.
7 In re Estate of Hockemeier, supra note 2; McClellan v. Board of Equal. of
Douglas Cty., 275 Neb. 581, 748 N.W.2d 66 (2008).
718 	280 NeBRASkA RePORTS

CONCLUSION
Because Choctaw was not served with summons and a copy
of the complaint within 6 months from the date the complaint
was filed, this action was dismissed by operation of law before
any issue was submitted to the district court. The judgment
entered in favor of Davis was therefore null and void. We
therefore reverse, and remand with directions to the district
court to vacate its judgment and to enter an order that Davis’
complaint stands dismissed under § 25-217.
reversed And remAnded with direCtions
to vACAte And dismiss.
DAvIS v. CHOCTAW CONSTR. 	719
Cite as 280 Neb. 714