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Nebraska Court of Appeals Advance Sheets

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PEARCE v. MUTUAL OF OMAHA INS. CO.

Cite as 28 Neb. App. 410

Kevin P. Pearce and Julie Pearce, appellants, v. 

Mutual of Omaha Insurance Company 

and Continuum Worldwide 

Corp., appellees.

___ N.W.2d ___

Filed May 19, 2020. No. A-19-868.

1. Judgments: Final Orders: Legislature. The Legislature has defined 

a judgment as the final determination of the rights of the parties in an 

action; conversely, every direction of a court or judge, made or entered 

in writing and not included in a judgment, is an order.

2. Rules of the Supreme Court: Records: Appeal and Error. Appellate 

court rules provide for the inclusion of journal entries into the appellate record.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a judgment, decree, or 

final order entered by the court from which the appeal is timely taken, 

and that judgment, decree, or final order must contain the clerk of the 

court’s file stamp and date.

4. Final Orders: Appeal and Error. An unsigned journal entry without 

a file stamp can constitute an interlocutory order; but it cannot constitute a final, appealable order, particularly when it does not dispose of 

all issues.

5. Jurisdiction: Records: Proof: Appeal and Error. It is the appellant’s 

burden to ensure that the record establishes the appellate court’s basis 

for jurisdiction over an appeal.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Appeal dismissed.

Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell, 

P.C., L.L.O., for appellants.

Nebraska Supreme Court Online Library

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

05/26/2020 12:08 AM CDT
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PEARCE v. MUTUAL OF OMAHA INS. CO.

Cite as 28 Neb. App. 410

Richard P. Jeffries, of Cline, Williams, Wright, Johnson & 

Oldfather, L.L.P., for appellees.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

Kevin P. Pearce and Julie Pearce attempt to appeal for the 

third time from two underlying orders entered by the Douglas 

County District Court on October 16, 2018, and May 23, 2019. 

Appellees, Mutual of Omaha Insurance Company (Mutual of 

Omaha) and Continuum Worldwide Corp. (Continuum), have 

filed a motion for summary dismissal on the basis that the 

Pearces’ appeal is now untimely. We agree the appeal is 

untimely, and we therefore sustain appellees’ motion for summary dismissal and dismiss the appeal for lack of jurisdiction.

Ordinarily, a summary dismissal by this court is limited 

to a brief docket entry filed in the case. However, given the 

confusion apparent in this case with regard to orders memorialized on docket sheets, i.e., journal entries; final judgments; and adequate appellate records, a detailed explanation 

is warranted.

BACKGROUND

Underlying Orders Entered October 16, 2018, 

and May 23, 2019

Kevin was an insurance agent for appellees; he rented 

office space from Mutual of Omaha where he kept personal 

computers which contained business and personal information. Kevin’s contract with appellees was terminated without 

warning on January 17, 2014. Kevin was escorted from his 

office, and he subsequently filed an action for the return of 

his property. Appellees filed a counterclaim seeking damages 

for breach of contract and misappropriation of trade secrets, 

along with an injunction against Kevin’s possession or use of 

appellees’ proprietary material. Appellees filed a motion for 

summary judgment; the following sequence of events then 

took place:
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PEARCE v. MUTUAL OF OMAHA INS. CO.

Cite as 28 Neb. App. 410

•October 16, 2018: The district court entered an order sustaining appellees’ summary judgment motion, thus dismissing 

the Pearces’ action with prejudice. The order was silent as 

to appellees’ counterclaim, but the last sentence of the order 

stated that “[a]ny request for relief by any party not specifically granted by this Order is denied.”

•October 24, 2018: Mutual of Omaha filed a “Motion to 

Alter or Amend,” noting that the October 16 order did not 

address its counterclaim for an injunction (and also noted that 

Continuum was previously dismissed from the action).

•October 26, 2018: The Pearces filed a “Motion to Alter or 

Amend” the October 16 order for various reasons.

•November 30, 2018: There are three pages of “Judges Notes”; 

each page indicates the case name at the top of the page, followed by specific dates and docket entries. The judge’s name 

is listed for each entry. The docket entry for “11/30/2018” 

noted attorney appearances, and then it stated, “Hearing 

on Defendant’s [Mutual of Omaha’s] Motion to Alter or 

Amend. Argument. Motion Sustained. Order to be submitted. 

Hearing on Plaintiff’s [Pearces’] Motion to Alter or Amend. 

Argument. Motion Denied.”

•December 13, 2018: An “Order on [Mutual of Omaha’s] 

Motion to Alter or Amend” sustained Mutual of Omaha’s 

motion to alter or amend and explained that the October 

16 summary judgment order did not dispose of Mutual 

of Omaha’s counterclaim, the temporary restraining order 

remained in effect until further order, and the October 16 

order was not intended to be a final order or judgment by 

the court.

•May 23, 2019: The district court indicated in its “Permanent 

Injunction and Judgment” that there was a trial on appellees’ 

action for a permanent injunction. The injunction was granted.

First Appeal: A-19-603 

Filed June 21, 2019

The Pearces filed a notice of appeal on June 21, 2019. 

Although neither party raised a jurisdictional issue, this court 
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Cite as 28 Neb. App. 410

on its own motion issued an order to show cause noting that 

the matter was under jurisdictional review. The show cause 

order pointed out that the district court “clerk’s certificate 

indicates that a motion or motions to alter or amend judgment” had been filed on October 24, 2018. Because neither the 

motions nor orders were included in our transcript, the Pearces 

were ordered to provide this court copies of any motion to 

alter or amend judgment, along with the district court’s subsequent ruling on the motion or motions. In response, the 

Pearces filed a supplemental transcript which contained the 

motions to alter or amend filed by the Pearces and Mutual of 

Omaha, as well as the December 13 order pertaining solely to 

Mutual of Omaha’s motion to alter or amend as noted above. 

However, the Pearces did not include in the supplemental 

transcript a copy of the November 30 docket entry contained 

in the Judges Notes which memorialized the district court’s 

denial of the Pearces’ motion to alter or amend following a 

hearing. We note here that our appellate court rules provide 

for inclusion of such records in the transcript. See Neb. Ct. 

R. App. P. § 2-104(B) (journal entries may be typed as group 

and included at end of transcript). See, also, Neb. Rev. Stat. 

§ 25-914 (Reissue 2016) (“[e]very direction of a court or 

judge, made or entered in writing and not included in a judgment, is an order”).

Because the Pearces failed to provide any documentation 

to establish that their motion to alter or amend had been ruled 

upon by the district court on November 30, 2018, this court 

dismissed their first appeal on July 25, 2019. This court’s 

docket entry dismissing the appeal stated, “District Court has 

not yet ruled upon [the Pearces’] motion to alter or amend.”

At this point, the Pearces could have requested a rehearing 

and could have provided to this court through a supplemental 

transcript a copy of the November 30, 2018, docket entry in 

the Judges Notes reflecting the district court’s denial of the 

Pearces’ motion to alter or amend. However, the Pearces did 

not do so. As a result, their appeal was dismissed because 

the appellate record did not demonstrate that the Pearces’ 
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Cite as 28 Neb. App. 410

October 26 motion to alter or amend had ever been ruled 

upon by the district court and their appeal appeared to be premature. See Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2018) 

(timely motion to alter or amend judgment terminates time in 

which notice of appeal must be filed; when such terminating 

motion is filed, notice of appeal filed before court announces 

decision upon terminating motion shall have no effect and 

new notice of appeal must be filed after entry of order ruling 

on terminating motion).

Second Appeal: A-19-764 

Filed August 9, 2019

Following this court’s dismissal of the Pearces’ first appeal, 

instead of filing for rehearing or filing a petition for further 

review, the Pearces instead filed another notice of appeal on 

August 9, 2019. They again indicated that they sought review 

of the October 16, 2018, order (summary judgment) and 

the May 23, 2019, order (permanent injunction). This time, 

Mutual of Omaha’s motion to alter or amend filed October 

24, 2018, and the Pearces’ motion to alter or amend filed 

October 26 were included in the transcript, along with the 

December 13 order which related only to Mutual of Omaha’s 

motion. However, the Pearces had requested in their praecipe 

for transcript, “Any and all Judge’s Notes throughout this 

proceeding.” The transcript filed by the district court clerk 

did not contain the Judges Notes as requested by the Pearces. 

On August 21, 2019, this court issued an order to show 

cause, stating:

A review of the current record fails to show that the 

Douglas County District Court ever ruled on [the 

Pearces’] motion to alter or amend the judgment. [The 

Pearces] are given 10 days from the date of this order 

to file a supplemental transcript with this court which 

contains a file stamped copy of the district court’s order 

denying their motion to alter or amend the judgment. 

Failure to file such a supplemental transcript may result 

in the appeal being summarily dismissed . . . .
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PEARCE v. MUTUAL OF OMAHA INS. CO.

Cite as 28 Neb. App. 410

On August 23, 2019, the Pearces filed a “Response to 

Order to Show Cause.” It stated that the district court judge 

“did not enter an Order on the [Pearces’] Motion to Alter or 

Amend filed on or about October 26, 2018[,]” but that the 

parties “met in chambers for hearing on the parties’ competing Motions to Alter or Amend on November 30, 2018, where 

[the district court judge] denied [the Pearces’] Motion to 

Alter or Amend (see attached Exhibit ‘A’, Judges Notes dated 

11/30/2018).” Exhibit A showed various filings, and at the end 

of the document, the Judges Notes contained the November 

30, 2018, docket entry denying the Pearces’ motion to alter 

or amend.

This court dismissed the second appeal on August 29, 2019, 

with a docket entry stating, “District court has not yet ruled 

upon [the Pearces’] motion to alter or amend.” Although this 

was not quite accurate based on the November 30, 2018, 

docket entry now supplied to this court in response to the order 

to show cause, the Judges Notes were not provided to this court 

in a supplemental transcript. Regardless, even if the Judges 

Notes had been included in the initial transcript in this second 

appeal (as requested by the Pearces in their praecipe) or in a 

supplemental transcript in response to the order to show cause, 

the second appeal could not have been saved.

Because the second appeal was filed on August 9, 2019, and 

the district court’s final judgment was entered on May 23, the 

appeal was now untimely. There was nothing in the record to 

show that the 30-day appeal time had been tolled. We acknowledge that this court’s docket entry may have created some confusion by dismissing the second appeal on the basis that the 

“District court has not yet ruled upon [the Pearces’] motion 

to alter or amend.” This likely led to the Pearces erroneously 

believing that the November 30, 2018, docket entry contained 

in the Judges Notes it had now provided to this court did not 

constitute an order disposing of their motion to alter or amend. 

As a result, the Pearces subsequently sought to have the district court enter a separate written and file-stamped order denying the Pearces’ October 26 motion to alter or amend. The 
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Cite as 28 Neb. App. 410

district court proceeded to enter such an order on September 

9, 2019 (signed September 6, file-stamped September 9). That 

order stated: “This matter came on for hearing on November 

30, 2018, upon [the Pearces’] Motion to Alter or Amend. . . . 

IT IS THEREFORE ORDERED [the Pearces’] Motion to Alter 

or Amend is denied.” The Pearces thereafter immediately filed 

their notice of appeal on September 9, 2019, in the present 

(third) appeal, A-19-868.

In response to the newly entered September 9, 2019, 

order denying the Pearces’ October 26, 2018, motion to 

alter or amend, the appellees filed a “Motion to Vacate” the 

“September 6 [sic], 2019 Order purporting to deny, for the 

second time, the [Pearces’] Motion to Alter or Amend as of 

the same date.” Appellees referred to the docket entry entered 

on November 30, 2018, in the Judges Notes, and pointed out 

that per appellate court rules, journal entries can be made 

part of the official transcript, but that the Pearces failed to 

do so when appealing to this court. Appellees submitted 

that the Pearces were trying to “make an otherwise untimely 

appeal viable,” in that the Pearces’ motion to alter or amend 

could not be denied twice. Appellees further claimed that the 

September 9, 2019, order was entered over appellees’ objection without a motion and notice of hearing and that therefore, 

the order was the product of an ex parte communication and 

was prejudicial to appellees.

On September 24, 2019, the district court entered an order 

vacating the “September 6 [sic], 2019 Order.” It took judicial 

notice of the Judges Notes from November 30, 2018, wherein 

the court had already denied the Pearces’ motion to alter or 

amend and concluded that the September 9, 2019, order “purports to deny the Motion to Alter or Amend for the second 

time.” The district court referred to § 25-914 (every direction 

of court or judge, made or entered in writing and not included 

in judgment, is order) and § 2-104(B)(2) with regard to the 

Judges Notes constituting a written order of the court which 

could have been transmitted to this court. The district court 

concluded that this court did not acquire jurisdiction as a 
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Cite as 28 Neb. App. 410

result of the September 9 order because it was an invalid order 

and that therefore, the district court determined it retained 

jurisdiction to vacate the September 9 order.

On September 30, 2019, the Pearces filed a “Motion to Enter 

Order.” It set forth the sequence of events pertaining to its 

motion to alter or amend and stated that “to date, an Order on 

[the Pearces’] Motion to Alter or Amend has not been entered.” 

They requested such an order. On October 8, the district court 

filed an “Order on Motion to Enter Order,” which overruled 

the motion.

Present (Third) Appeal: A-19-868 

Filed September 9, 2019

As noted above, the Pearces’ filed their third notice of 

appeal in this action on September 9, 2019, the same day the 

district court’s order was filed purporting to deny the Pearces’ 

October 16, 2018, motion to alter or amend. As also noted, 

the September 9, 2019, order was subsequently vacated by 

the district court on September 24. Regardless of the filings 

and orders generated in the district court following this court’s 

dismissal of the Pearces’ second appeal, the Pearces’ third 

appeal must nevertheless be summarily dismissed for lack 

of jurisdiction.

ANALYSIS

Appellees’ Motion for 

Summary Dismissal

Appellees correctly assert that the September 9, 2019, notice 

of appeal was filed more than 30 days after the final judgment 

was entered in this case on May 23. They contend that this 

court is therefore deprived of jurisdiction and that the Pearces’ 

third appeal should be dismissed. It is true that § 25-1912(1) 

provides that a notice of appeal shall be filed within 30 days 

of entry of a judgment, decree, or final order. However, pursuant to § 25-1912(3), the running of the time for filing a notice 

of appeal shall be terminated by a timely motion to alter or 

amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 
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2016) (motion to alter or amend judgment shall be filed no 

later than 10 days after entry of judgment). In this case, both 

appellees and the Pearces filed timely motions to alter or 

amend the October 16, 2018, order, which appeared to be a 

final judgment at that time. Subsequently, according to the 

November 30 docket entry contained in the Judges Notes, a 

hearing appears to have taken place that day on both parties’ 

motions to alter or amend; Mutual of Omaha’s motion was sustained, and an order was to be submitted to the district court. 

The Pearces’ motion was “Denied.” An order was then entered 

on December 13, sustaining Mutual of Omaha’s motion to alter 

or amend. The order explained that the October 16 summary 

judgment order did not dispose of Mutual of Omaha’s counterclaim, the temporary restraining order remained in effect until 

further order, and the October 16 order was not intended to be 

a final order or judgment by the court.

The determinative issue for jurisdictional purposes comes 

down to whether or not the November 30, 2018, docket entry 

contained in the Judges Notes constitutes an order disposing of 

the Pearces’ motion to alter or amend. If so, then by the time 

the final judgment of the court was entered on May 23, 2019, 

there were no pending motions to alter or amend which would 

have tolled the time to appeal beyond the 30 days provided for 

in § 25-1912.

Did November 30, 2018, Docket 

Entry Constitute Order?

[1,2] The confusion in this case stemmed from the district court’s November 30, 2018, docket entry/journal entry 

set forth in the Judges Notes, wherein the court denied the 

Pearces’ October 26 motion to alter or amend. We conclude 

that although it was a docket entry and not a separate filestamped document, the written entry made by the district 

court on November 30 denying the Pearces’ motion to alter 

or amend was nevertheless an order disposing of the Pearces’ 

motion. Section 25-914 states: “Every direction of a court 

or judge, made or entered in writing and not included in a 
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judgment, is an order.” See, also, E.D. v. Bellevue Pub. Sch. 

Dist., 299 Neb. 621, 909 N.W.2d 652 (2018) (Legislature 

has defined judgment as final determination of rights of parties in action; conversely, every direction of court or judge, 

made or entered in writing and not included in judgment, is 

order). Additionally, as previously noted, our appellate court 

rules provide for the inclusion of journal entries, such as the 

Judges Notes involved here, into the appellate record. See 

§ 2-104(B)(2) (“[j]ournal entries may be typed as a group and 

included at the end of the transcript,” and “[e]ach entry must 

show the date it was filed with the clerk of the court and the 

name of the judge making the entry”). In the Judges Notes 

before us, each docket entry showed the date it was filed and 

the name of the judge making the entry.

An order such as the one made by the district court in the 

Judges Notes on November 30, 2018, is distinguishable from 

a judgment, decree, or final order resolving a case, and from 

which an appeal can be taken. The November 30 written 

docket entry constituted an “order” disposing of the Pearces’ 

motion even though it was not separately filed and did not 

contain a file stamp. The key distinction to be made on the 

necessity of a signed, file-stamped order is whether we are 

dealing with (1) an order that is not part of a judgment or (2) 

a judgment. Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2018) provides the requirements for a final order or judgment; it states 

in part:

(1) A judgment is the final determination of the rights 

of the parties in an action.

(2) Rendition of a judgment is the act of the court, or a 

judge thereof, in signing an order of the relief granted or 

denied in an action.

(3) The entry of a judgment, decree, or final order 

occurs when the clerk of the court places the file stamp 

and date upon the judgment, decree, or final order. For 

purposes of determining the time for appeal, the date 

stamped on the judgment, decree, or final order shall be 

the date of entry.
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Cite as 28 Neb. App. 410

(4) The clerk shall prepare and maintain the records of 

judgments, decrees, and final orders that are required by 

statute and rule of the Supreme Court.

[3,4] For an appellate court to acquire jurisdiction of an 

appeal, there must be a judgment, decree, or final order 

entered by the court from which the appeal is timely taken, 

and that judgment, decree, or final order must contain the 

clerk of the court’s file stamp and date. See id. See, also, 

City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 

N.W.2d 861 (2006) (file-stamped journal entry disposed of 

whole merits of case and was final judgment for purposes of 

appeal); Donscheski v. Donscheski, 17 Neb. App. 807, 771 

N.W.2d 213 (2009) (district court’s order denying mother’s 

motion for removal and change of custody and granting 

father’s motion for custody was unsigned journal entry that 

was not file stamped and did not dispose of all issues; thus, 

journal entry did not constitute rendition or entry of judgment and was interlocutory order superseded by subsequent 

final order). In Donscheski v. Donscheski, 17 Neb. App. at 

813, 771 N.W.2d at 219, this court pointed out the distinction between an order which is not part of a judgment and a 

final judgment:

Consequently, §§ 25-914 and 25-1301 specify the 

range of actions available to a judge by defining, first, 

an order—which, by definition, is not part of a judgment—and second, a judgment—which must be a final 

determination of the rights of the parties in an action, 

as well as being both rendered and entered, before it 

is a final, appealable order. . . . Because the July 31, 

2008, journal entry was neither signed nor file stamped, 

it did not constitute either a rendition of judgment or 

an entry of judgment. Furthermore, the July 31 journal 

entry was also not a final order, because it did not dispose of all issues—the district court specifically left the 

issues of parenting time and child support under advisement. . . . [T]he journal entry is quite meaningless for 

our purposes; it is the final order of October 15 which 
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Cite as 28 Neb. App. 410

we review, and which superseded the interlocutory order 

contained in the journal entry.

Therefore, as set forth in Donscheski v. Donscheski, supra, an 

unsigned journal entry without a file stamp can constitute an 

interlocutory order; but it cannot constitute a final, appealable 

order, particularly when it does not dispose of all issues.

When the district court in the present matter made the 

November 30, 2018, docket entry contained in the Judges 

Notes, it was an order disposing of the Pearces’ motion to alter 

or amend the October 16 order. It was not an order that was 

part of a final judgment; it did not fully dispose of the underlying case. However, once the May 23, 2019, final judgment 

was entered, all matters had been disposed of, and there were 

no pending terminating motions. Thus, this court would have 

had jurisdiction over the first appeal had the appellate record 

contained the November 30, 2018, docket entry.

For the sake of completeness, we want to be clear that had 

a motion for new trial or motion to alter or amend judgment 

been timely filed after the final judgment was entered in this 

case on May 23, 2019, then any order ruling on such a terminating motion would have to have been formally entered 

on the trial court’s records, not merely recorded as a docket 

entry in the Judges Notes. This is so because the order on the 

terminating motion is part of the final judgment and now disposes of the whole action. See § 25-1912(3) (notice of appeal 

must be filed after “entry of the order” ruling on terminating 

motion). The “entry” of an order is governed by § 25-1301(3), 

which requires the clerk of the court to place a file stamp 

and date upon the judgment, decree, or final order. Section 

25-1301(3) further provides: “For purposes of determining the 

time for appeal, the date stamped on the judgment, decree, or 

final order shall be the date of entry.” An order ruling on a 

terminating motion timely filed after a final judgment or final 

order starts the 30-day clock for filing an appeal, and must be 

entered in accordance with § 25-1301.

On the other hand, a file-stamped “entry” of the November 

30, 2018, order in this case, while maybe preferable, was 
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not required given its interlocutory status (October 16 order 

was not final judgment), much like the journal entry that was 

not signed or file stamped in Donscheski v. Donscheski, 17 Neb. 

App. 807, 771 N.W.2d 213 (2009). Such docket entries or journal entries are nevertheless orders of the court. See § 25-914 

(“[e]very direction of a court or judge, made or entered in 

writing and not included in a judgment, is an order”). They are 

simply not final, appealable orders or judgments, which would 

require compliance with § 25-1301 (clerk of court’s file stamp 

and date placed upon judgment, decree, or final order).

Summary

[5] Accordingly, when the Pearces filed their first appeal 

(A-19-603) on June 21, 2019, it was timely filed from the 

entry of the May 23 final judgment. There were no newly filed 

motions to alter or amend after entry of that judgment. All that 

was needed at the time of the first appeal was an appellate 

record containing the November 30, 2018, order, which was 

memorialized in the Judges Notes; this would have confirmed 

there were no outstanding motions to alter or amend remaining 

from the October 2018 filings. Despite the order to show cause 

issued by this court, the Judges Notes were not supplied and 

the Pearces’ first appeal was dismissed. This was unfortunate; 

however, it is the appellant’s burden to ensure that the record 

establishes the appellate court’s basis for jurisdiction over an 

appeal. See Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 

895 N.W.2d 284 (2017).

Following the dismissal of the first appeal, the subsequent 

appeals were each filed out of time because there were no 

remaining terminating motions extending the Pearces’ time 

to appeal.

CONCLUSION

For the foregoing reasons, appellees’ motion for summary 

dismissal is sustained and the appeal is dismissed for lack 

of jurisdiction.

Appeal dismissed.