Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/21/2017 12:11 AM CDT




                                                              - 797 -
                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                                   ANDERSON v. FINKLE
                                                    Cite as 296 Neb. 797




                       Janice M. A nderson, Personal R epresentative of the
                        Estate of Steven B. A nderson, deceased, appellee,
                                    v. Steve Finkle, appellant.
                                                       ___ N.W.2d ___

                                        Filed June 2, 2017.    Nos. S-16-222, S-16-307.

                1.	 Jurisdiction: Appeal and Error. When a jurisdictional question does
                    not involve a factual dispute, its determination is a matter of law, which
                    requires an appellate court to reach a conclusion independent of the
                    decision made by the lower court.
                2.	 Statutes: Appeal and Error. Statutory interpretation presents a question
                    of law. When reviewing questions of law, an appellate court has an obli-
                    gation to resolve the questions independently of the conclusion reached
                    by the trial court.
                3.	 Actions: Abatement, Survival, and Revival. A pending action must be
                    revived in the manner provided by statute; a failure to do so means that
                    the pending action has no force and effect with respect to any entity in
                    whose name revivor was required.
                4.	 Actions: Parties: Death: Abatement, Survival, and Revival. The
                    death of a party to a legal proceeding, where the cause of action sur-
                    vives, suspends the action as to the decedent until someone is substi-
                    tuted for the decedent as a party.
                5.	 Judgments: Jurisdiction. When a court lacks jurisdiction and nonethe-
                    less enters an order, such order is void.
                6.	 Judgments: Final Orders: Jurisdiction: Appeal and Error. A void
                    order is a nullity which cannot constitute a judgment or final order that
                    confers appellate jurisdiction on a court.
                7.	 Appeal and Error. The notice of appeal from a nonappealable order
                    does not render void for lack of jurisdiction acts of the trial court taken
                    in the interval between the filing of the notice and the dismissal of the
                    appeal by the appellate court.
                8.	 Abatement, Survival, and Revival: Final Orders. An order reviving
                    an action is not a final order.
                                - 798 -
            Nebraska Supreme Court A dvance Sheets
                    296 Nebraska R eports
                         ANDERSON v. FINKLE
                          Cite as 296 Neb. 797

 9.	 Jurisdiction: Final Orders: Appeal and Error. An appellate court is
     without jurisdiction to entertain appeals from nonfinal orders.

  Appeals from the District Court for Douglas County: Shelly
R. Stratman, Judge. Appeals dismissed.
  Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Peebles, Belmont & Line, L.L.P., for appellant.
  John A. Kinney and Jill M. Mason, of Kinney Mason, P.C.,
L.L.O., for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
  Heavican, C.J.
                       INTRODUCTION
   This case involves two separate cases that were fully briefed
and consolidated for oral argument.
   Steven B. Anderson filed a complaint alleging breach of
contract and quantum meruit or unjust enrichment after Steve
Finkle failed to perform on a promissory note. Following trial,
but prior to the court issuing its order, Anderson died. The
district court subsequently issued an order awarding Anderson
the amount of the promissory note, plus interest.
   The court overruled Finkle’s motion for new trial and
granted Anderson’s estate’s motion for revivor to revive the
matter. Finkle appeals. We dismiss the appeals in both cases
Nos. S-16-222 and S-16-307.
                       BACKGROUND
                     Factual Background
   Finkle and several other individuals formed a limited lia-
bility corporation, Summer Productions, LLC., to open and
operate “Pauli’s in the Outfield,” a beer garden, which would
be open during the College World Series in June 2013. To
open the beer garden, Summer Productions needed $100,000
in capital.
                             - 799 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                      ANDERSON v. FINKLE
                       Cite as 296 Neb. 797

   In May 2013, Finkle signed a promissory note for $50,000,
plus interest assessed at the rate of 5 percent per annum, pay-
able to Anderson, due on or before August 1, 2013. Finkle
claims that Anderson rejected the first promissory note and
that Anderson received a new promissory note reflecting the
terms of the agreement, but that the new note was not signed
by Finkle. In any event, Anderson transferred the funds,
$20,000 in a cashier’s check and $30,300 in cash, to Summer
Productions.
   On June 12, 2013, the beer garden opened for business for
the first weekend of the College World Series. The venture
failed after 31⁄2 days, and Summer Productions filed for bank-
ruptcy. Finkle failed to perform on the promissory note.

                      Procedural History
   On November 21, 2013, Anderson filed a complaint, alleging
breach of contract and quantum meruit or unjust enrichment.
   The district court held a trial on August 25, 2015. Anderson
died on October 2. On October 30, Janice M. Anderson was
appointed in probate court to serve as Anderson’s personal
representative. On November 30, the court ordered Finkle to
pay Anderson the amount of $50,000, plus interest and costs
of the action. The record suggests that the trial court did not
know of Anderson’s death before entering the November 30
order. Further, at oral argument, Finkle’s attorney confirmed
that there was no suggestion of death filed with the trial court
prior to the issuance of the November 30 order.
   On December 4, 2015, Finkle filed a motion for new trial or
to alter or amend the trial court’s order entered on November
30. On January 25, 2016, the estate filed a motion for revivor.
On January 29, the district court overruled Finkle’s motion for
new trial, and on February 25, Finkle filed a notice of appeal
from the denial of his motion for new trial. On March 1, the
court filed an order reviving the matter in the name of the per-
sonal representative of the estate. On March 22, Finkle filed a
notice of appeal from the order of revivor.
                                    - 800 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                             ANDERSON v. FINKLE
                              Cite as 296 Neb. 797

                 ASSIGNMENTS OF ERROR
   In case No. S-16-307, Finkle assigns that the district court
lacked jurisdiction to enter the November 30, 2015, judgment
and its January 29, 2016, order denying Finkle’s motion for
new trial, which both occurred after the death of Anderson
and prior to entering an order of revivor. Thus, Finkle argues,
the judgment and orders entered by the trial court are null
and void.
   In case No. S-16-222, in addition to the errors listed above,
Finkle assigns, restated and consolidated, that the district court
erred in finding the promissory note was valid and enforce-
able because (1) the court misapplied the parol evidence rule
to bar consideration of evidence outside the written terms
of the promissory note, (2) the court failed to discredit, as a
matter of law, the testimonial evidence of Anderson at trial
after he changed his prior testimony on vital disputed issues
including whether the promissory note formed an enforceable
agreement, (3) the agreement lacked consideration, and (4)
Finkle was intended to be personally liable under the promis-
sory note.

                   STANDARD OF REVIEW
   [1] When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires an
appellate court to reach a conclusion independent of the deci-
sion made by the lower court.1
   [2] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court.2

 1	
      Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (2007).
 2	
      Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003). See In re
      Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).
                               - 801 -
           Nebraska Supreme Court A dvance Sheets
                   296 Nebraska R eports
                        ANDERSON v. FINKLE
                         Cite as 296 Neb. 797

                             ANALYSIS
                            Jurisdiction
   Neb. Rev. Stat. § 25-1405 (Reissue 2016) provides that
“[w]here one of the parties to an action dies, or his powers
as a personal representative cease, before the judgment, if the
right of action survives in favor of or against his representa-
tives or successor, the action may be revived, and proceed
in their names.” And Neb. Rev. Stat. § 25-1406 (Reissue
2016) states:
         The revivor shall be, by a conditional order of the court
      if made in term, or by a judge thereof if made in vacation,
      that the action be revived in the names of the representa-
      tives or successor of the party who died, or whose powers
      ceased; and proceed in favor of or against them.
   Neb. Rev. Stat. § 25-1407 (Reissue 2016) further provides:
         The order may be made on the motion of the adverse
      party, or of the representatives or successor of the party
      who died, or whose powers ceased, suggesting his death
      or the cessation of his powers, which, with the names
      and capacities of his representatives or successor, shall
      be stated in the order.
   Neb. Rev. Stat. § 25-322 (Reissue 2016) also provides:
         An action does not abate by the death or other dis-
      ability of a party, or by the transfer of any interest therein
      during its pendency, if the cause of action survives or
      continues. In the case of the death or other disability of
      a party, the court may allow the action to continue by or
      against his or her representative or successor in interest.
      In case of any other transfer of interest, the action may be
      continued in the name of the original party or the court
      may allow the person to whom the transfer is made to be
      substituted in the action.
   [3,4] A pending action must be revived in the manner pro-
vided by statute; a failure to do so means that the pending action
has no force and effect with respect to any entity in whose
                                     - 802 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                              ANDERSON v. FINKLE
                               Cite as 296 Neb. 797

name revivor was required.3 “‘The death of a party to a legal
proceeding, where the cause of action survives, suspends the
action as to decedent until someone is substituted for decedent
as a party.’”4
   In this case, trial was held on August 25, 2015. Anderson,
the sole plaintiff in this case, died on October 2. On October
30, the personal representative was appointed in probate court.
   On November 30, 2015, the court entered judgment on the
merits of the case. On January 29, 2016, the district court ruled
on various posttrial motions, and on February 25, Finkle filed
an otherwise timely notice of appeal from this judgment. Prior
to the filing of that appeal, however, on January 25, the estate
had filed a motion for revivor, and on March 1, the trial court
revived the action in the name of the personal representative.
On March 22, Finkle perfected a second appeal from the order
of revivor and all underlying orders and judgments, including
the trial order entered on November 30, 2015.
   As of the time of Anderson’s death, the only action the
district court had jurisdiction to take was to revive the action
in the name of the personal representative in response to a
properly filed motion for revivor.5 As such, the district court
lacked jurisdiction to enter judgment for Anderson and lacked
jurisdiction to deny Finkle’s motion for new trial. Because the
pending action was not revived, the court’s issuance of these
orders following Anderson’s death had “no force and effect” as
to Anderson.6
   [5-7] When a court lacks jurisdiction and nonetheless enters
an order, such order is void.7 Furthermore, “[a] void order is a

 3	
      See Fox v. Nick, supra note 2.
 4	
      Id. at 991, 660 N.W.2d at 886, quoting 1 C.J.S. Abatement and Revival
      § 155 (1985).
 5	
      See, In re Conservatorship of Franke, supra note 2; Fox v. Nick, supra
      note 2; Street v. Smith, 75 Neb. 434, 106 N.W. 472 (1906).
 6	
      See Fox v. Nick, supra note 2, 265 Neb. at 992, 660 N.W.2d at 886 (2003).
 7	
      See State v. Bracey, 261 Neb. 14, 621 N.W.2d 106 (2001).
                                      - 803 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                              ANDERSON v. FINKLE
                               Cite as 296 Neb. 797

nullity which cannot constitute a judgment or final order that
confers appellate jurisdiction on [a] court.”8 We have held that
“the notice of appeal from a nonappealable order does not ren-
der void for lack of jurisdiction acts of the trial court taken in
the interval between the filing of the notice and the dismissal
of the appeal by the appellate court.”9
   As discussed above, because of Anderson’s death, the dis-
trict court lacked jurisdiction to enter judgment and deny
Finkle’s motion for new trial. Thus, these orders were void.
Finkle’s purported appeal from such orders did not confer
appellate jurisdiction upon this court. Therefore, Finkle’s first
appeal, filed on February 25, 2016, did not divest the district
court of its jurisdiction.

                      Order of R evivor
   The one action the district court was permitted to take was
to revive the proceedings in the name of Anderson’s personal
representative. The district court did so on March 1, 2016.
Therefore, the order of revivor issued by the district court
on March 1 effectively revived the matter in the name of
the estate.
   Hence, we turn to Finkle’s second notice of appeal, filed on
March 22, 2016, in which Finkle appealed the order of revivor
and all underlying orders and judgments. The motion for revi-
vor was made pursuant to § 25-1406. The district court granted
the order of revivor “pursuant to Neb. Rev. Stat[.] § 25-322
(and not Neb. Rev. Stat[.] § 25-1410).”
   [8,9] Although the order for revivor was made pursuant to
§ 25-322, this makes no difference in our analysis. We have
held that “an order reviving an action, whether the order was
entered in proceedings under § 25-322 or under [Neb. Rev.
Stat.] §§ 25-1403 to 25-1420 [(Reissue 2016)], is not a final

 8	
      In re Interest of Trey H., 281 Neb. 760, 767, 798 N.W.2d 607, 613 (2011).
 9	
      Holste v. Burlington Northern RR. Co., 256 Neb. 713, 729, 592 N.W.2d
      894, 906 (1999).
                                   - 804 -
               Nebraska Supreme Court A dvance Sheets
                       296 Nebraska R eports
                            ANDERSON v. FINKLE
                             Cite as 296 Neb. 797

order from which an appeal may immediately be taken. The
order may be reviewed after final judgment in the case.”10 We
have therefore held that an order reviving an action is not a
final order. An appellate court is without jurisdiction to enter-
tain appeals from nonfinal orders.11 As such, we must dismiss
Finkle’s second notice of appeal for lack of a final, appeal-
able order.
   In short, the district court’s judgment order and order deny-
ing the motion for new trial or to alter or amend the trial
court’s order following Anderson’s death on October 2, 2015,
appealed as case No. S-16-222, is void and is accordingly
dismissed. Because the district court was never divested of its
jurisdiction, the order of revivor remains in effect. However,
we are without jurisdiction to entertain Finkle’s appeal of this
order of revivor, appealed as case No. S-16-307, because it
was not a final order. Therefore, case No. S-16-307 must also
be dismissed.
                         CONCLUSION
   Because the case in the district court was suspended upon
the death of Anderson, the judgment order and order denying
the motion for new trial or to alter or amend the trial order
that the district court issued subsequent to Anderson’s death,
which were appealed and docketed at case No. S-16-222, is
dismissed. The appeal docketed at case No. S-16-307 is also
dismissed for lack of a final order.
                                            A ppeals dismissed.

10	
      Platte Valley Nat. Bank v. Lasen, supra note 1, 273 Neb. at 611, 732
      N.W.2d at 354.
11	
      See Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
