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296 Nebraska Report

ANDERSON v. FINKLE

Cite as 296 Neb. 797

Janice M. Anderson, Personal Representat

Estate of Steven B. Anderson, deceased, ap

v. Steve Finkle, appell

___ 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 obligation 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 survives, suspends the action as to the decedent until someone is substituted for the decedent as a party.

5. Judgments: Jurisdiction. When a court lacks jurisdiction and nonetheless 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/14/2017 09:11 AM CDT
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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: Shell

R. Stratman, Judge. Appeals dismiss

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,

Kelch, and Funke,

Heavican, C

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 Backg

Finkle and several other individuals formed a limited liability 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.
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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, payable 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 bankruptcy. Finkle failed to perform on the promissory note.

Procedural Hist

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 personal representative of the estate. On March 22, Finkle filed a 

notice of appeal from the order of revivor.
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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 enforceable 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 promissory 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 decision made by the lower court.1

[2] Statutory interpretation presents a question of law. When 

reviewing questions of law, an appellate court has an obligation 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).
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ANDERSON v. FINKLE

Cite as 296 Neb. 797

ANALYSIS

Jurisdicti

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 representatives 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 representatives 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 disability 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 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 
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ANDERSON v. FINKLE

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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).
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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 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.”9

As discussed above, because of Anderson’s death, the district 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 Reviv

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 revivor 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).
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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 entertain appeals from nonfinal orders.11 As such, we must dismiss 

Finkle’s second notice of appeal for lack of a final, appealable order.

In short, the district court’s judgment order and order denying 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.

Appeals 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).