Halac v. Girton

R achelle R. halac , appellant, v. Joseph G iRton
and aleJandRo vasquez , appellees.
766 N.W.2d 418
Filed April 7, 2009. 	No. A-08-784.
1. Jurisdiction: Appeal and Error. An appellate court has the duty and the power
to examine whether it has jurisdiction sua sponte.
2. Jurisdiction: Final Orders: Appeal and Error. A final order is a prerequisite to
an appellate court’s obtaining jurisdiction of an intermediate appeal pursuant to
Neb. Rev. Stat. § 25-1315(1) (Reissue 2008).
3. Actions: Parties: Final Orders: Appeal and Error. With the enactment of Neb.
Rev. Stat. § 25-1315(1) (Reissue 2008), an appeal can be taken pursuant to such
statute 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 immediate appeal.
4. Final Orders: Appeal and Error. It is left to the trial court’s discretion, to
be exercised in the interest of sound judicial administration, to determine the
appropriate time when each final decision in a multiple claims action is ready
for appeal.
5. ____: ____. Neb. Rev. Stat. § 25-1315(1) (Reissue 2008) was intended to prevent
interlocutory appeals, not make them easier.
6. ____: ____. The certification of a final judgment for appeal under Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2008) must be reserved for the unusual case in which the
costs and risks of multiplying the number of proceedings and of overcrowding the
appellate docket are outbalanced by pressing needs of the litigants for an early
and separate judgment as to some claims or parties.
7. ____: ____. In deciding whether there are no just reasons to delay the appeal of
individual final judgments, a trial court must take into account judicial adminis-
trative interests as well as the equities involved. Consideration of the former is
necessary to ensure that application of Neb. Rev. Stat. § 25-1315(1) (Reissue
2008) effectively preserves the general policy against piecemeal appeals.
Appeal from the District Court for Douglas County: J. patRick
Mullen, Judge. Appeal dismissed.
Terrence J. Salerno for appellant.
Dennis J. Mullin for appellee Alejandro Vasquez.
inbody, Chief Judge, and iRwin and sieveRs, Judges.
sieveRs, Judge.
This appeal presents the issue of whether a summary judg-
ment entered in favor of one of two defendants in a multiple
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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vehicle collision is properly certifiable as an immediately
appealable order. The district court found that its order was
immediately appealable under Neb. Rev. Stat. § 25-1315(1)
(Reissue 2008), although the case against the other defendant
was still pending and unresolved in the district court.
FACTUAl BACKgRoUND
This lawsuit involves a four-car accident occurring on July
31, 2002, in which Rachelle R. halac, the plaintiff, claims she
was injured. halac testified in her deposition that she was trav-
eling westbound on leavenworth Street in omaha when she
stopped behind a white van for a red light at leavenworth’s
intersection with Turner Boulevard. The defendant Alejandro
Vasquez was traveling behind halac, and the defendant Joseph
girton was traveling behind Vasquez. halac testified that she
came to a complete stop at the intersection and was wait-
ing for the light to change when she “heard a squealing of
tires, [she] heard a crash, and then another, which at that
point lurched [her] forward, sent things around [her] car. For
example, things that were in the backseat were now in the
front seat.” Throughout her testimony, halac was very clear
that she felt only one impact, although her car was pushed into
the van stopped 10 feet in front of her—which latter collision
she described merely as a “bump”; “it was not an impact.” We
now turn to the testimony of the two defendants, beginning
with Vasquez.
Vasquez was then an 18-year-old unlicensed driver who
testified in his deposition that he had never driven before the
day of the accident. Vasquez testified that he was going 30
miles per hour as he approached the intersection where the
accident occurred. he then testified that he was 5 feet behind
the “blue Cavalier” (halac’s vehicle) when he first saw it
and that the blue Cavalier was stopped at the time. Vasquez
said that he hit his brakes while going 30 miles per hour and
that he was able to stop within 5 feet without hitting the blue
Cavalier. Vasquez said that he did not remember seeing the
“red car” (girton’s vehicle) before it hit him from the rear at
a time when Vasquez had his foot on the brake. When asked
about girton’s testimony that Vasquez was going to turn north
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onto Turner Boulevard, Vasquez said that was not correct. In
his redirect deposition testimony, Vasquez answered affirm-
atively when asked if he “appl[ied his] brakes and just c[a]me
to a normal gradual stop behind the blue Cavalier,” and he
testified that he was stopped “[l]ike, five seconds” before his
vehicle was rear-ended.
girton, the driver of the “red car” that hit Vasquez’ vehicle,
was also 18 years old at the time of the accident, and his
deposition is in evidence. he admitted that he pled guilty to
a ticket for “following too close,” issued as a result of the
accident, and his answer admits negligence in the accident but
denies that such caused injury. girton testified that his vehicle
and Vasquez’ vehicle were traveling westbound in the lane
nearest to the curb. girton said that he did not see Vasquez
stop nor did he see halac’s vehicle before the accident. In his
testimony, he admitted that his vehicle hit Vasquez’ vehicle
and pushed it into the rear of halac’s vehicle. Finally, girton
admitted that he was going 45 miles per hour and that he left
no skid marks.
DISTRICT CoURT DeCISIoN
on May 25, 2007, the district court entered an order on
Vasquez’ motion for summary judgment, finding that girton’s
negligence was the sole proximate cause of the accident. After
granting Vasquez’ motion for summary judgment, the trial judge
entered an order finding that there was no just reason for delay
of an immediate appeal of the summary judgment in favor of
Vasquez under § 25-1315(1). halac then appealed to this court.
We dismissed that appeal, see case No. A-07-630, filed Jan. 25,
2008, for lack of jurisdiction, citing Cerny v. Todco Barricade
Co., 273 Neb. 800, 733 N.W.2d 877 (2007), because of the
trial court’s failure to make specific findings setting forth the
reasons that its order should be immediately appealable. After
our mandate was issued in the first appeal, the cause returned
to the trial court. on June 19, 2008, an “order and stay” was
entered which included the following finding:
I find that if the summary judgment order is not reviewed
and the case proceeds to trial against the remaining
defendant [girton] without resolution of whether a fact
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question exists regarding the actions of the defendant
driver Defendant Vasquez and his failure to see the
stopped halac car until he was 5 feet behind it, [it] will
likely result in multiple trials and appeals.
The trial judge then found that judicial economy will not be
served because of the strong likelihood of multiple trials and
multiple appeals if the summary judgment in Vasquez’ favor is
not reviewed by an appellate court prior to a trial on the claim
against girton.
The trial court additionally found that immediate review
was in the interest of sound judicial administration at both the
trial level and the appellate level. For purposes of the appeal
only, the court found that halac has suffered injuries that have
restricted her in her usual occupation, resulting in considerable
ongoing economic loss, and that as a result, she is ill equipped
to afford the long delay and costs associated with multiple
trials and appeals. Finally, the trial court found that the sum-
mary judgment decision falls squarely within § 25-1315(1)
and, thus, that the order of May 24, 2007, is a final order and
there is no just reason for the delay of an immediate appeal.
From this order of June 19, 2008, halac now appeals.
JURISDICTIoN
[1] None of the parties to this appeal raise any challenge to
our jurisdiction to hear this appeal, and we note that girton has
not filed a brief. Although halac and Vasquez asserted at oral
argument that the appeal is proper, it is well established that an
appellate court has the duty and the power to examine whether
it has jurisdiction sua sponte. See Mason v. Cannon, 246 Neb.
14, 516 N.W.2d 250 (1994).
[2,3] We begin by recalling the Supreme Court’s core hold-
ings and reasoning in Cerny v. Todco Barricade Co., 273 Neb.
800, 733 N.W.2d 877 (2007), which begin with the proposition
that a “final order” is a prerequisite to an appellate court’s
obtaining jurisdiction of an intermediate appeal pursuant to
§ 25-1315(1). With the enactment of § 25-1315(1), an appeal
can be taken pursuant to such statute 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.
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§ 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. See Cerny, supra. Thus, to be appealable in a
case with multiple parties or causes of action, an order must
satisfy the final order requirements of § 25-1902 as well as the
requirements of § 25-1315(1). however, the Cerny decision
has put substantial limitations on circumstances when a trial
court may properly certify an order or judgment as ripe for
an appeal.
[4] In the instant case, the order granting summary judgment
to Vasquez is indisputably a final order, and there is a claim
against multiple parties—the claim against girton remained
pending and stayed pending during this appeal. The Cerny
court said that “[i]t is left to the trial court’s discretion, to be
exercised in the interest of sound judicial administration, to
determine the appropriate time when each final decision in a
multiple claims action is ready for appeal.” 273 Neb. at 808,
733 N.W.2d at 885. Thus, we review the trial court’s decision
certifying the grant of summary judgment in Vasquez’ favor as
appropriate for an immediate appeal under an abuse of discre-
tion standard. See, also, Murphy v. Brown, 15 Neb. App. 914,
738 N.W.2d 466 (2007).
[5-7] That said, the court in Cerny v. Todco Barricade Co.,
273 Neb. 800, 809-10, 733 N.W.2d 877, 886-87 (2007), sum-
marized the legislative intent behind § 25-1315 and laid down
a number of considerations for trial courts when making the
decision whether to certify an immediate appeal:
Section 25-1315 was an evident attempt by the legislature
to simplify the issue and clarify many of the questions
regarding final orders when there are multiple parties
and claims. In other words, § 25-1315(1) was intended
to prevent interlocutory appeals, not make them easier.
It attempts to strike a balance between the undesirability
of piecemeal appeals and the potential need for making
review available at a time that best serves the needs of
the parties.
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Therefore, it is well established in every other jurisdic-
tion to have considered a similar rule that certification of
a final judgment must be reserved for the “unusual case”
in which the costs and risks of multiplying the number
of proceedings and of overcrowding the appellate docket
are outbalanced by pressing needs of the litigants for an
early and separate judgment as to some claims or par-
ties. The power § 25-1315(1) confers upon the trial judge
should only be used “‘“in the infrequent harsh case”’” as
an instrument for the improved administration of justice,
based on the likelihood of injustice or hardship to the par-
ties of a delay in entering a final judgment as to part of
the case.
As a general principle, in deciding whether there are
no just reasons to delay the appeal of individual final
judgments, a trial court must take into account judicial
administrative interests as well as the equities involved.
Consideration of the former is necessary to ensure that
application of § 25-1315(1) effectively preserves the
general policy against piecemeal appeals. plainly, sound
judicial administration does not require that certification
requests be granted routinely. Therefore, entry of judg-
ment under § 25-1315(1) should not be indulged as a
matter of routine. Section 25-1315(1) was simply not
meant to be employed in the absence of sufficiently com-
pelling circumstances.
(Citations omitted.)
The Cerny court made the general observation that the law
disfavors piecemeal appeals, that multiple appeals interfere
with efficient judicial administration and impose on the parties
costs and risks associated with protracted litigation. There are
only a few appellate cases applying the jurisdictional aspect
of the Cerny decision. We upheld the trial court’s certification
of an immediate appeal in Sand Livestock Sys. v. Svoboda,
17 Neb. App. 28, 756 N.W.2d 299 (2008). Sand Livestock
Sys. was a highly complex case involving multiple parties,
claims including libel and false light invasion of privacy, and a
counterclaim alleging a violation of Nebraska’s statutory provi-
sions concerning strategic lawsuits against public participation,
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i.e., a “SlApp” lawsuit, as well as an anti-SlApp counter-
claim resulting in a judgment of $900,000. This highly unusual
situation made it rather obviously the “unusual case” that the
Cerny court said is appropriate for an immediate appeal even
though not all claims had yet been tried. Moreover, Sand
Livestock Sys. presented a first impression issue of law. In
Murphy v. Brown, 15 Neb. App. 914, 738 N.W.2d 466 (2007),
we remanded the cause to the trial court because of inadequate
findings by the trial judge to justify certification, as we earlier
did in the instant case. In Jones v. Jones, 16 Neb. App. 452,
747 N.W.2d 447 (2008), we dismissed an appeal because the
trial court simply had not certified the case under § 25-1315(1).
Therefore, despite several decided cases after Cerny, supra,
the Cerny opinion is still the primary guidepost for the issue
before us.
That said, we first note that after our remand in this case, the
trial court detailed its reasons and rationale for its certification,
and we have included the core portions thereof in our opinion.
The trial court’s rationale assumed that halac was injured and
suffering economic loss from such, and the only reason cited
for certification was that halac could not afford the cost and
delay of “multiple trials and appeals.” however, having mul-
tiple trials, assuming absence of error in a halac-versus-girton
trial followed by an appeal, only flows from the possibility that
the grant of summary judgment to Vasquez would be reversed
on appellate review. Intending no comment on the merits
of the grant of summary judgment, the specter of “multiple
trials” in this rather commonplace automobile accident case
does not make this the type of case that the court in Cerny v.
Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007),
described as being appropriate for an interlocutory appeal, and
it obviously is a much more straightforward case than Sand
Livestock Sys., supra.
Trial courts are required by Cerny to make specific find-
ings, and clearly such must comport with the parameters for
certification as laid down in Cerny. While the trial judge did
make findings upon our remand, such findings are at odds
with the key considerations justifying certification set forth
in Cerny.
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Initially, we recall the Cerny court’s caution that § 25-1315(1)
certification should be reserved for the “unusual” or “infre-
quent harsh” case as an instrument for the improved admin-
istration of justice, based on the likelihood of injustice or
hardship to the parties because of delay in entering a final
judgment as to part of the case. The Cerny court said that
the point of § 25-1315 was to limit interlocutory appeals, not
facilitate them. The Cerny opinion, relying in part on federal
decisions, has a rather extensive list of considerations that bear
on whether § 25-1315(1) certification should be entered. We
summarize these Cerny considerations as follows:
• Is there a pressing need for early or separate judgments as
to some claims or parties?
• Is there a grave need for immediate appellate intervention
or grave injustice remediable only by allowing an appeal to be
taken forthwith?
• The interrelationship of issues remaining for trial and those
on appeal weighs against certification.
• If claims overlap (being predicated on the same incident
involving the same witnesses and evidence), such counsels
against certification.
• The possibility that the need for review will be mooted by
developments in the trial court weighs against certification.
• If the appellate court will be forced to confront successive
appeals with common issues of fact or law, such fact counsels
against certification.
This is not an unusual case, and it does not involve complex
issues of law or fact. There is considerable overlap between
what we would examine on the merits of the grant of summary
judgment and what remains to be tried against girton. The
trial court’s rationale for certification—the avoidance of mul-
tiple trials, i.e., a retrial if summary judgment were incorrectly
granted to Vasquez—is the primary reason cited by the trial
court. however, such is inadequate justification for certification
under Cerny, supra. There is substantial “overlap” in halac’s
claims against girton and Vasquez because this is a single
incident and the witnesses are the same with respect to both
claims. And the fact that a plaintiff in an automobile accident
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case suffers economic hardship while the litigation process
runs its course is not unusual.
Therefore, for these reasons, we are compelled to find that
the trial court abused its discretion in certifying the summary
judgment in Vasquez’ favor for immediate appeal. This case
has most, if not all, of the contraindications for immediate
appeal detailed in Cerny, remembering that the policy behind
§ 25-1315(1) was the avoidance of piecemeal appellate review
in routine cases, not the facilitation thereof.
CoNClUSIoN
We, therefore, find that we do not have jurisdiction to hear
this appeal. Thus, we do not address the merits of the sum-
mary judgment, and we remand the cause to the district court
for trial as to the remaining defendant, girton, after which,
if there is an appeal, we will then have jurisdiction to review
the summary judgment entered as to Vasquez, if appropri-
ately raised.
appeal disMissed.
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