Hearst-Argyle v. Entrex Communication Svcs.

778 N.W.2d 465, 279 Neb. 468
CourtNebraska Supreme Court
DecidedFebruary 19, 2010
DocketS-09-048, S-09-104
StatusPublished
Cited by32 cases

This text of 778 N.W.2d 465 (Hearst-Argyle v. Entrex Communication Svcs.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hearst-Argyle v. Entrex Communication Svcs., 778 N.W.2d 465, 279 Neb. 468 (Neb. 2010).

Opinion

778 N.W.2d 465 (2010)
279 Neb. 468

HEARST-ARGYLE PROPERTIES, INC., et al., appellants,
v.
ENTREX COMMUNICATION SERVICES, INC., et al., appellees.
Hearst-Argyle Properties, Inc., and The Hearst Corporation, appellants,
v.
Entrex Communication Services, Inc., et al., appellees.

Nos. S-09-048, S-09-104.

Supreme Court of Nebraska.

February 19, 2010.

*467 J. Joseph McQuillan, of Walentine, O'Toole, McQuillan & Gordon, Omaha, and Jeffrey R. Learned, of Denenberg Tuffley, P.L.L.C., for appellants.

William R. Johnson and Craig F. Martin, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee Entrex Communication Services, Inc.

Thomas A. Grennan and Francie C. Riedmann, of Gross & Welch, P.C., L.L.O., Omaha, for appellee Communication Structures & Services, Inc.

Dean Suing, of Katskee, Henatch & Suing, Omaha, for appellee Dudutis Erection & Maintenance, Inc.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

The issues presented in this appeal arise out of a construction contract requiring that the property owner maintain insurance "without optional deductibles" and providing that if the insurance had deductibles, the property owner would "pay costs not covered because of such deductibles." We must determine whether those provisions insulate the construction contractor from liability and whether public policy permits them to be enforced if the contractor was grossly negligent. We find that the provisions at issue protect the contractor, and we affirm the district court's ruling to that effect.

BACKGROUND

This case began with the July 2003 collapse of a television antenna tower in Omaha, Nebraska. The defendants in this case, Entrex Communication Services, Inc.; Communication Structures & Services, Inc.; and Dudutis Erection & Maintenance, Inc. (collectively the defendants), had either contracted or subcontracted to remove the analog antenna on the tower and replace it with a digital antenna. The owners of the tower, Hearst-Argyle Properties, Inc., and The Hearst Corporation (collectively Hearst), allege that the defendants' negligence caused the tower to collapse, causing over $6 million in damages to Hearst's property.

Hearst and its insurers sued the defendants on that basis. Although their claims were initially filed together, Hearst's claims were eventually separated, under a different trial docket number, from the insurers' claims. The district court granted the defendants' motion for summary judgment against the insurers, concluding that a waiver of subrogation clause in the contract between Hearst and the defendants barred recovery for insured damages. On appeal, we affirmed that conclusion.[1]

Hearst continued to press its claim for $250,000 in alleged damages that had not been covered by insurance, because of its insurance policy deductible. The defendants moved for summary judgment, arguing that subparagraphs 11.4.1 and 11.4.1.3 of the parties' contract barred recovery for the deductible amount. Subparagraph 11.4.1 required Hearst to

purchase and maintain ... property insurance written on a builder's risk "all-risk" *468 or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles.

(Emphasis supplied.) And subparagraph 11.4.1.3 added, "If the property insurance requires deductibles, [Hearst] shall pay costs not covered because of such deductibles."

The district court agreed with the defendants' argument that the contract did not permit Hearst to recover its deductible and granted the defendants' motion for summary judgment.

ASSIGNMENTS OF ERROR

Hearst assigns that the district court erred in concluding that (1) subparagraphs 11.4.1 and 11.4.1.3 bar Hearst's claims for its deductible and (2) Hearst's gross negligence claims are barred by subparagraph 11.4.1.3.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.[2] The meaning of a contract is also a question of law, as is the determination of whether a contract violates public policy.[3] An appellate court resolves questions of law independently of the determination reached by the court below.[4]

ANALYSIS

APPELLATE JURISDICTION

We first note a jurisdictional issue presented by a clerical error on Hearst's notice of appeal. As noted above, Hearst's claims and the claims of its insurers were separated in the trial court into two separate trial docket numbers. The district court entered summary judgment against Hearst on December 12, 2008. But Hearst's first notice of appeal in this case, filed January 9, 2009, was mistakenly filed under the docket number for the insurers' claims, not Hearst's. And by the time Hearst recognized its error and filed an amended notice of appeal, on January 26, more than 30 days had elapsed from the district court's final judgment.[5] The question, then, is whether either notice was sufficient to perfect Hearst's appeal.

We conclude that the untimely January 26, 2009, notice of appeal was not effective to confer appellate jurisdiction. The January 26 notice of appeal was not filed within 30 days after the entry of the judgment from which Hearst sought to appeal.[6] But Hearst's January 9, 2009, notice of appeal was filed within 30 days of the judgment, albeit under the wrong trial docket number. Section 25-1912 does not expressly require a notice of appeal to display a trial court docket number, or be filed in a particular trial court docket; instead, it requires only a "notice of intention" to prosecute an appeal from a judgment, decree, or final order of the district court. And other courts have found, under comparable circumstances, that a notice of appeal filed *469 under the wrong docket number is not fatal to appellate jurisdiction.[7]

Hearst's defective January 9, 2009, notice of appeal effectively served as a "notice of intention" to prosecute an appeal within the meaning of § 25-1912(1). It displayed the wrong trial docket number, but correctly and specifically identified the parties and the December 12, 2008, order being appealed from. The defendants do not argue that they were confused or misled by the notice of appeal; in fact, the record affirmatively demonstrates that they were not. And Hearst has presented this court with a consolidated record that contains the December 12 order and the evidence upon which the district court's order was based.[8] Under these circumstances, we conclude that § 25-1912(1) was substantially complied with and that we have jurisdiction to consider Hearst's appeal.

We are left with two appellate docket numbers. But a docket number is not synonymous with an appeal. Docket numbers are a function of this court's internal administration, and regard-less of how they have been enumerated, it is clear that there is only one appeal here: Hearst's appeal from the December 12, 2008, summary judgment order. Because it will simplify matters for the trial court if our mandate on appeal corresponds to the trial docket number in which the December 12 order was entered, we accept Hearst's suggestion that we dismiss case No. S-09-048 as moot, and we enter our judgment in this appeal in case No.

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Cite This Page — Counsel Stack

Bluebook (online)
778 N.W.2d 465, 279 Neb. 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hearst-argyle-v-entrex-communication-svcs-neb-2010.