Halac v. Girton

766 N.W.2d 418, 17 Neb. Ct. App. 505
CourtNebraska Court of Appeals
DecidedApril 7, 2009
DocketA-08-784
StatusPublished
Cited by29 cases

This text of 766 N.W.2d 418 (Halac v. Girton) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Halac v. Girton, 766 N.W.2d 418, 17 Neb. Ct. App. 505 (Neb. Ct. App. 2009).

Opinion

766 N.W.2d 418 (2009)
17 Neb. App. 505

Rachelle R. HALAC, appellant,
v.
Joseph GIRTON and Alejandro Vasquez, appellees.

No. A-08-784.

Court of Appeals of Nebraska.

April 7, 2009.

*420 Terrence J. Salerno, Omaha, 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 judgment entered in favor of one of two defendants in a multiple 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 traveling 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 waiting 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 onto Turner Boulevard, Vasquez said that was not correct. In his redirect deposition testimony, Vasquez answered affirmatively 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 *421 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 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 summary 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

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).

We begin by recalling the Supreme Court's core holdings 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 *422 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. § 25-1902

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Cite This Page — Counsel Stack

Bluebook (online)
766 N.W.2d 418, 17 Neb. Ct. App. 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halac-v-girton-nebctapp-2009.