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312 Nebraska Reports

SCHAAF V. SCHAAF

Cite as 312 Neb. 1

Daniel D. Schaaf and Ronald R. Schaaf, 

Copersonal Representatives of the Estate 

of Lorene M. Schaaf, appellants, v. 

Tommy B. Schaaf and Susan 

M. Schaaf, appellees.

___ N.W.2d ___

Filed July 22, 2022. No. S-21-251.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.

2. Motions to Vacate: Time: Appeal and Error. The decision to vacate 

an order any time during the term in which the judgment is rendered is 

within the discretion of the court; such a decision will be reversed only 

if it is shown that the district court abused its discretion.

3. Judgments: Words and Phrases. A judicial abuse of discretion exists 

when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition.

4. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

6. Dismissal and Nonsuit: Final Orders: Appeal and Error. Generally, 

an order of dismissal is a final, appealable order.

7. Final Orders. Under Neb. Rev. Stat. § 25-1902(1)(a) (Cum. Supp. 

2020), an order affecting a substantial right in an action, when such 

order in effect determines the action and prevents a judgment, is a 

final order.

Nebraska Supreme Court Online Library

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

10/07/2022 09:06 AM CDT
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8. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, which includes those legal rights that a party is entitled to 

enforce or defend.

9. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to an appellant before the order from 

which an appeal is taken.

10. Final Orders. An order that completely disposes of the subject matter of the litigation in an action or proceeding both is final and affects 

a substantial right because it conclusively determines a claim or 

defense.

11. Dismissal and Nonsuit. Generally, under Neb. Rev. Stat. §§ 25-601(1) 

(Reissue 2016) and 25-602 (Cum. Supp. 2020), a plaintiff has the 

right to dismiss an action without prejudice before final submission of 

the case.

12. ____. After a final submission, dismissal without prejudice requires 

leave of court.

13. Actions. A final submission of an action contemplates submission upon 

both law and facts, and it only exists when nothing remains to be done 

to render it complete.

14. Summary Judgment: Dismissal and Nonsuit. A summary judgment 

motion can be a final submission that will prevent voluntary dismissal 

under Neb. Rev. Stat. § 25-601 (Reissue 2016).

15. Dismissal and Nonsuit. Under Neb. Rev. Stat. § 25-602 (Cum. Supp. 

2020), a plaintiff loses the right to voluntarily dismiss without prejudice when a counterclaim or setoff has been filed by the opposing party.

16. Dismissal and Nonsuit: Jurisdiction. An order of dismissal or dismissal by operation of law divests a court of jurisdiction to take any 

further action in the matter.

17. Dismissal and Nonsuit. When a case is voluntarily dismissed by a 

party, the controversy between the parties upon which a trial court may 

act ends.

18. Dismissal and Nonsuit: Jurisdiction: Pleadings: Motions to Vacate.

A court treats a motion to reinstate a case after an order of dismissal as 

a motion to vacate the order, and a court generally has jurisdiction over 

a motion to vacate an order of dismissal and reinstate a case.

Appeal from the District Court for Holt County: Mark 

D. Kozisek, Judge. Reversed and remanded for further 

proceedings.
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Bradley D. Holbrook and Elizabeth J. Klingelhoefer, of 

Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for 

appellants.

Lyle Joseph Koenig, of Koenig Law Firm, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Appellants appeal from a dismissal entered by the district 

court upon the court’s determination that the case had been 

improperly reinstated after they voluntarily dismissed their 

case without prejudice. For the reasons set forth herein, we 

reverse the findings of the district court and remand the cause 

for further proceedings consistent with this opinion.

BACKGROUND

Daniel D. Schaaf and Ronald R. Schaaf (Appellants) are 

copersonal representatives for the estate of their mother, 

Lorene M. Schaaf. In February 2017, Appellants filed a complaint against their brother, Tommy B. Schaaf, and his wife, 

Susan M. Schaaf (Appellees), which asserted two counts of 

undue influence and one count of fraud in the inducement 

regarding the devise of certain real estate by Lorene.

Appellees filed an amended answer that affirmatively alleged 

a codicil executed by Lorene was the product of undue influence. Appellees’ amended answer also requested that the court 

award them “their costs, including attorney fees, and any other 

relief that is just.”

In May 2018, Appellees filed a motion for summary judgment, which was granted in part and denied in part. Specifically, 

the court dismissed one count of fraud in the inducement with 

prejudice, but overruled Appellees’ motion as to the remaining counts.

On August 15, 2018, pursuant to Neb. Rev. Stat. § 25-601 

(Reissue 2016), Appellants filed a voluntary dismissal of the 
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action without prejudice. Appellees did not file an objection 

to the voluntary dismissal. On August 20, the trial court issued 

a journal entry effectively treating Appellants’ dismissal as a 

motion dismissing without prejudice. The court then granted 

the motion and ordered the complaint be dismissed without 

prejudice, with both Appellants and Appellees to pay their 

own costs.

Shortly after Appellants filed their dismissal, they commenced a new action in the county court for Holt County, 

where they asserted two counts of undue influence and one 

count of fraud in the inducement regarding the same subject matter. The county court subsequently determined that 

it lacked subject matter jurisdiction over the claims and dismissed the complaint.

In February 2019, Appellants returned to the district court 

and filed a motion to vacate/reinstate, requesting that the district court vacate its August 2018 journal entry and reinstate 

the case pursuant to Neb. Rev. Stat. § 25-2001(1) (Reissue 

2016). Over Appellees’ objection, the court sustained the 

motion to vacate/reinstate, noting that the pleadings suggested 

that Appellants had intended to pursue the same course of 

litigation in the county court and that Appellees would “derive 

great benefit by not allowing reinstatement of the case.” In 

November 2020, Appellees filed an amended motion for summary judgment. The motion was heard in December 2020.

In March 2021, rather than ruling on Appellees’ amended 

motion for summary judgment, the district court entered an 

order dismissing Appellants’ case. The court reasoned that 

under § 25-601, a plaintiff may dismiss an action before final 

submission of the case to the court or jury and that therefore, 

Appellants did not need permission or an order from the court 

before the voluntary dismissal became effective. The court 

therefore determined that its August 2018 journal entry granting dismissal without prejudice was “a mere gratuity.” As a 

result, the court found that Appellants’ voluntary dismissal 

effectively ended the litigation as soon as it was filed and that 
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any subsequent order from the court purporting to dismiss or 

reinstate the case was a nullity. The court stated that Appellants 

must commence a new civil action by filing a petition or 

complaint because neither the purported reinstatement by the 

court nor the filing of the amended complaint constituted the 

filing of a new lawsuit. Thus, the court concluded the case 

“[stood] dismissed pursuant to [Appellants’] voluntary dismissal.” Appellants appeal.

ASSIGNMENT OF ERROR

Appellants assign, restated and consolidated, that the district 

court erred in dismissing their case based on their previously 

filed voluntary dismissal without prejudice.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision. 1

[2,3] The decision to vacate an order any time during the 

term in which the judgment is rendered is within the discretion of the court; such a decision will be reversed only if it is 

shown that the district court abused its discretion. 2 A judicial 

abuse of discretion exists when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying just results in matters submitted 

for disposition. 3

[4] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 4

1 In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).

2 Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).

3 Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466, 915 

N.W.2d 58 (2018).

4 Id.
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ANALYSIS

Jurisdiction

[5,6] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. 5 Generally, an order of 

dismissal is a final, appealable order. 6

[7-10] Under Neb. Rev. Stat. § 25-1902(1)(a) (Cum. Supp. 

2020), an order affecting a substantial right in an action, when 

such order in effect determines the action and prevents a judgment, is a final order. A substantial right is an essential legal 

right, which includes those legal rights that a party is entitled 

to enforce or defend. 7 A substantial right is affected if an order 

affects the subject matter of the litigation, such as diminishing 

a claim or defense that was available to an appellant before the 

order from which an appeal is taken. 8 An order that completely 

disposes of the subject matter of the litigation in an action or 

proceeding both is final and affects a substantial right because 

it conclusively determines a claim or defense. 9

Here, the district court’s March 2021 order of dismissal 

completely disposed of the subject matter of the litigation and, 

as such, was a final, appealable order over which we have 

jurisdiction.

§ 25-601

Having determined that we have jurisdiction over this 

appeal, we move to the merits of the case. Appellants argue 

that the district court erred in dismissing their case because, 

at the time they filed their voluntary dismissal, a final submission had occurred, which divested Appellants of their 

5 Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).

6 Id.

7 See, Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012); 

State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).

8 Big John’s Billiards, supra note 7.

9 Id.
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statutory ability to voluntarily dismiss their case under 

§ 25-601. We agree.

[11-13] The ability of a plaintiff to dismiss his or her claim(s) 

without prejudice is codified in § 25-601 and Neb. Rev. Stat. 

§ 25-602 (Cum. Supp. 2020). Generally, under these statutes, 

a plaintiff has the right to dismiss an action without prejudice 

before final submission of the case, subject to compliance 

with conditions precedent as may be imposed by the court. 10

We have stated that the statutory right to voluntary dismissal 

under §§ 25-601 and 25-602 is not a matter of judicial grace 

or discretion, but neither is it absolute or without limitation. 11

After a final submission, dismissal without prejudice requires 

leave of court. 12 A final submission of an action contemplates 

10 Beals v. Western Union Telegraph Co., 53 Neb. 601, 74 N.W. 54 (1898); 

Sharpless v. Giffen, 47 Neb. 146, 66 N.W. 285 (1896). See Holste v. 

Burlington Northern RR. Co., 256 Neb. 713, 730, 592 N.W.2d 894, 

907 (1999) (holding plaintiff’s right to voluntary dismissal before final 

submission “is not absolute”); Horton v. State, 63 Neb. 34, 88 N.W. 146 

(1901). See, also, Sheedy v. McMurtry, 44 Neb. 499, 502, 63 N.W. 21, 23 

(1895) (explaining “the right of a plaintiff to dismiss at any time during 

the pendency of a cause, as a general proposition, must be qualified, and is 

not absolute in the sense that it takes the subject without the control of the 

court in which the cause is pending, so that it cannot, within its discretion, 

impose the condition of the payment of costs as obligatory and precedent 

to a dismissal of the action”).

11 Millard Gutter Co., supra note 3; Holste, supra note 10.

12 See Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948). See, e.g., 

Millard Gutter Co., supra note 3; Collection Specialists v. Vesely, 238 

Neb. 181, 469 N.W.2d 549 (1991) (plaintiff loses statutory right to dismiss 

without prejudice after final submission, but court has discretion to allow 

such dismissal depending on facts and circumstances of case); Pettegrew 

v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935) (same); Knaak v. Brown, 

115 Neb. 260, 212 N.W. 431 (1927) (holding dismissal of action after final 

submission must be by leave of court and cannot be accomplished by mere 

act of plaintiff alone); Nelson v. Omaha & C. B. Street R. Co., 93 Neb. 

154, 139 N.W. 860 (1913); Bee Building Co. v. Dalton, 68 Neb. 38, 93 

N.W. 930 (1903) (plaintiff loses right to voluntarily dismiss action without 

prejudice after there has been final submission, but court has discretion to 

permit dismissal).
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submission upon both law and facts, and it only exists when 

nothing remains to be done to render it complete. 13

In support of their argument that a ruling on a motion 

for summary judgment is a final submission which deprives 

a party from being able to voluntarily dismiss their case, 

Appellants direct us to our recent decision in Millard Gutter 

Co. v. American Family Ins. Co. 14 In Millard Gutter Co., the 

defendant prevailed on summary judgment regarding three of 

the plaintiff’s four claims. Then, on the morning of trial, the 

plaintiff filed a voluntary dismissal under § 25-601. The voluntary dismissal was not styled as a motion, but the district court 

held a hearing to determine the effect of the filing. Ultimately, 

the court entered a judgment that dismissed without prejudice 

the claim set for trial, made final the prior summary judgments 

entered in favor of the defendant, and taxed certain costs to 

the plaintiff. The plaintiff appealed, arguing that once it filed 

the voluntary dismissal, the court’s jurisdiction over the case 

terminated and the court lacked the ability to tax costs. The 

district court rejected the plaintiff’s argument, finding that 

there was a final submission that precluded voluntary dismissal 

under § 25-601 and that there was a setoff that precluded 

voluntary dismissal under § 25-602.

[14] On appeal, we held in Millard Gutter Co. that a summary judgment motion can be a final submission that will prevent voluntary dismissal under § 25-601. We also found that 

due to the granting of the appellee’s motion for partial summary 

judgment, there was a final submission regarding some, but not 

all, of the appellant’s claims in the case. As such, because the 

summary judgments in favor of the appellee were the product 

of final submissions that had neither been revised nor set aside, 

we concluded that the appellant lacked the statutory authority 

under § 25-601 to voluntarily dismiss those claims.

13 See, Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 

435 (1980); Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 259 

N.W. 367 (1935).

14 Millard Gutter Co., supra note 3.
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As described by one commentator, our holding in Millard 

Gutter Co. was the correct conclusion because a “plaintiff 

should not be allowed to dismiss claims without prejudice after 

the claims have been rejected. Otherwise, the plaintiff could 

avoid an adverse decision on one or more claims by simply 

dismissing those claims without prejudice and reasserting them 

in a new action.” 15 Additionally, Nebraska is far from alone 

in treating summary judgments as final submissions that can 

limit a plaintiff’s statutory right to voluntarily dismiss without 

prejudice. 16

Likewise, here, the district court granted partial summary 

judgment in favor of Appellees on their claim of fraud in the 

inducement. Therefore, under the reasoning set forth in Millard 

Gutter Co., there was a final submission regarding one, but 

not all, of Appellants’ claims. Accordingly, because the partial 

summary judgment in favor of Appellees was the product of 

a final submission that had neither been revised nor set aside, 

Appellants had no statutory right under § 25-601 to voluntarily 

15 See, John P. Lenich, Nebraska Civil Procedure § 34:4 at 1479 (2022).

16 See, e.g., Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995) 

(holding that summary judgment is final submission, but court retains 

discretion to grant voluntary dismissal without prejudice); Mary Morgan, 

Inc. v. Melzark, 49 Cal. App. 4th 765, 57 Cal. Rptr. 2d 4 (1996) (holding 

voluntary dismissal without prejudice not permitted as matter of right 

after summary judgment hearing has commenced); Brandt v. Joseph 

F. Gordon Architect, Inc., 998 P.2d 587 (Okla. 1999) (holding that 

summary judgment is final submission of claim for purposes of voluntary 

dismissal statute and forecloses plaintiff’s unfettered right to dismiss 

claim without prejudice); Bio-Medical Applications, Inc. v. Coston, 272 

Va. 489, 634 S.E.2d 349 (2006) (finding voluntary dismissal was untimely 

when made after court announced ruling on defendant’s motion for 

summary judgment; at that point, case had been submitted to court for 

decision); Beritich v. Starlet Corporation, 69 Wash. 2d 454, 458, 418 

P.2d 762, 764 (1966) (holding plaintiff loses right to voluntarily dismiss 

without prejudice after motion for summary judgment has been ruled 

upon, otherwise “[t]he summary judgment procedure, at least from the 

defendant’s viewpoint, would become a virtual nullity if a plaintiff can 

‘exit stage left’ upon hearing an adverse oral decision of the trial judge on 

the summary judgment motion”).
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dismiss that claim without prejudice. Consequently, the district 

court’s authority to make further rulings in the case was unaffected by the filing of the voluntary dismissal.

The dissent of our learned colleague recognizes that a 

court has discretion when considering whether to refuse to 

dismiss a case and must consider the protection of any rights 

which have accrued to the defendant. 17 The dissent goes on 

to note that Appellees took no steps to seek the protection of 

their rights and that therefore, Appellants’ dismissal should 

have been absolute. However, the very fact that Appellees 

could have taken steps to protect their rights and the court 

could have entered an order preserving a counterclaim or the 

restitution of property of which a party has been deprived 

or ordering the recovery of Appellants’ costs makes it clear 

that a plaintiff’s right to dismiss after a final submission is 

not absolute.

For the sake of completeness, we note that our opinion 

should not be construed as holding that a final submission on 

one claim forecloses a plaintiff from voluntarily dismissing 

other claims which have not yet been finally submitted. But 

in this case, Appellants attempted to do much more than that; 

they filed a voluntary dismissal purporting to dismiss the entire 

action without prejudice, which necessarily included the fraud 

claim which had been finally submitted and decided on summary judgment.

While the final submission on the fraud claim did not affect 

whether Appellants could voluntarily dismiss their undue 

influence claims, it did affect whether they could voluntarily 

dismiss the entire action pursuant to § 25-601. In other words, 

after one of several claims has been finally submitted, the 

plaintiff retains the right under § 25-601 to voluntarily dismiss other claims which have not yet been finally submitted, 

but they lose the statutory right to voluntarily dismiss the 

entire action.

17 See Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 

(2002).
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§ 25-602

[15] Appellants also argue that, pursuant to § 25-602, they 

did not have a statutory right to dismiss their case because 

Appellees included a counterclaim in their amended answer. 

Under § 25-602, a plaintiff loses the right to voluntarily dismiss a claim without prejudice when a counterclaim or setoff 

has been filed by the opposing party. Because we have already 

determined that there was a final submission in this case that 

divested Appellants of their statutory right to dismissal under 

§ 25-601, we do not find it necessary to discuss whether a 

counterclaim or setoff had been filed. An appellate court is not 

obligated to engage in an analysis that is not needed to adjudicate the case and controversy before it. 18

Reinstatement

Lastly, we consider Appellants’ argument that the trial court 

had statutory authority to reinstate the case after the voluntary 

dismissal was filed.

[16,17] Generally, an order of dismissal or dismissal by 

operation of law divests a court of jurisdiction to take any further action in the matter. 19 Moreover, when a case is voluntarily 

dismissed by a party, the controversy between the parties upon 

which a trial court may act ends. 20

[18] But, in civil cases, a court of general jurisdiction 

has inherent power to vacate or modify its own judgment 

at any time during the term in which the court issued it. 21

Additionally, under § 25-2001(1), this inherent power allows a 

court to “vacate or modify its judgments or orders . . . after the 

end of the term, upon the same grounds, upon a motion filed 

within six months after the entry of the judgment or order.” A 

18 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128 

(2022).

19 Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

20 See Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 

N.W.2d 726 (2004).

21 Molczyk, supra note 19.
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court treats a motion to reinstate a case after an order of dismissal as a motion to vacate the order, and a court generally 

has jurisdiction over a motion to vacate an order of dismissal 

and reinstate a case. 22

Here, we have already determined that because Appellants 

did not have a statutory right to dismissal under § 25-601, 

the district court’s authority to make further rulings in the 

case was unaffected by the filing of the voluntary dismissal. 

Additionally, Appellants timely filed their motion to reinstate 

under § 25-2001(1).

Moreover, although the district court “granted” Appellants’ 

motion to dismiss, the court also had jurisdiction over the 

motion to reinstate and properly exercised its discretion in 

vacating the dismissal and reinstating the case. 23 Thus, its subsequent order reinstating the case was not a nullity, and the district court erred in determining that the case “[stood] dismissed 

pursuant to [Appellants’] voluntary dismissal.”

CONCLUSION

For the reasons set forth herein, the order of the district 

court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded for 

further proceedings.

22 Id.

23 See Horton v. State, 63 Neb. 34, 88 N.W. 146 (1901) (holding court has 

discretion to vacate and set aside plaintiff’s voluntary dismissal).

Cassel, J., dissenting.

The key question, it seems to me, is whether a previous 

order granting a partial summary judgment precludes a plaintiff 

from voluntarily dismissing an entire action as a matter of right 

with the acquiescence of the defendant. Because I conclude 

that it does not, I would affirm the district court’s order.

The dismissal was patently clear. It was entitled “Dismissal 

Without Prejudice.” I quote its body in full: “COMES NOW 
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the [copersonal representatives], by and through counsel, and 

hereby dismisses the above‐captioned matter, without prejudice, pursuant to Neb. Rev. Stat. § 25‐601 [(Reissue 2016)].” 

(Emphasis in original.)

The copersonal representatives’ complaint had asserted three 

causes of action against Tommy B. Schaaf and Susan M. 

Schaaf. One claimed that they unduly influenced Lorene M. 

Schaaf to deed four parcels of real estate to them in February 

2009. Another alleged that they unduly influenced her to deed 

another tract of real estate in September 2014. And the third 

claimed that the two deeds were induced by their fraudulent 

representations.

In May 2018, Tommy and Susan moved for summary judgment on all claims. In July, the court denied their motion 

in all but one respect; it granted summary judgment on the 

fraud‐in‐the‐inducement claim, but only as to the February 

2009 deed. In other words, the court denied summary judgment 

except as to part of a single claim.

Shortly thereafter, in search of a more favorable forum in 

county court, the copersonal representatives filed their dismissal in district court. A few days later, the district court 

entered an order characterizing the dismissal as a “motion” 

and stating in relevant part: “Motion granted, and complaint 

dismissed without prejudice. Each party ordered to pay their 

own costs.”

Tommy and Susan did not resist the dismissal or seek to 

preserve any aspect of the order partially granting summary 

judgment.

In February 2019, after apparently concluding that the 

county court was not a better forum, the copersonal representatives sought to vacate the district court’s order of dismissal 

in order to resume their litigation there. Tommy and Susan 

resisted. Over their objection, the district court initially reinstated the complaint. Later, the court recognized the effect 

of the prior unilateral dismissal pursuant to Neb. Rev. Stat. 

§ 25‐601 (Reisue 2016).
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Nebraska statutes have always permitted a plaintiff to dismiss an action without prejudice to a future action “before the 

final submission of the case to the jury, or to the court, where 

the trial is by the court.” 1 After final submission, a plaintiff 

must obtain leave of the court to dismiss an action without prejudice. 2

Long ago, this court recognized that there is an obvious danger in allowing dismissal as a matter of right after submission 

to the court. The danger is that “litigation would become interminable, because a party who was led to suppose a decision 

would be adverse to him could prevent such decision and begin 

anew, thus subjecting the defendant to annoying and continuous litigation.” 3 And “it would be a reproach to our judicial 

system to permit a defeated litigant to abandon his case and 

sue again, thus harassing the defendant and wasting money 

raised by taxation for public purposes.” 4

This court has stated that a plaintiff “‘has an absolute right 

to dismiss’” an action prior to final submission, subject to 

compliance with conditions precedent as may be imposed 

by the court. 5 This court has called it “an unqualified right” 

that can be exercised “without leave of court.” 6 On the other 

hand, this court has declared that a plaintiff’s right to voluntary dismissal is not absolute, whether sought before or after 

final submission. 7

1 Rev. Stat. ch. 1 § 430, p. 465 (1866). Cf. § 25‐601. See, also, Neb. Rev. 

Stat. § 25‐602 (Cum. Supp. 2020).

2 See State v. Scott, 22 Neb. 628, 36 N.W. 121 (1888).

3 Id. at 640, 36 N.W. at 126.

4 Bee Building Co. v. Dalton, 68 Neb. 38, 42, 93 N.W. 930, 931 (1903).

5 Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 512, 259 N.W. 

367, 369 (1935).

6 Werner v. Werner, 186 Neb. 558, 559‐60, 184 N.W.2d 646, 647 (1971).

7 See, Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 

894 (1999); Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21 (1895).
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While this court has characterized the right to dismiss as a 

statutory right and not a matter of judicial grace or discretion, 8

it has also explained that a court has discretion to refuse to 

dismiss a case. 9 In recognizing exceptions to a plaintiff’s right 

to dismiss, it has permitted a court to use discretion where it is 

necessary for the protection of any rights which have accrued 

to the defendant. 10 This court has said that

“‘the only discretion which may be exercised in the matter is the protection of any rights which have accrued to 

defendant as a result of the bringing of the action, such 

as the preservation of a counterclaim, the restitution of 

property of which he has been deprived, the recovery of 

his costs, and the like; that in the absence of such considerations the right to dismiss is absolute . . . .’” 11

But this court has never applied this discretion where, as 

here, the defendant seeks no protection and supports the plaintiff’s dismissal. Tommy and Susan took no action whatsoever 

after the August 2018 dismissal. Clearly, they were aware 

of the dismissal’s content. And they were likewise familiar 

with the court’s order entered a few days later. They did not 

file an appeal. Nor did they file any motion to retax costs or 

to preserve the partial summary judgment. Indeed, when the 

copersonal representatives sought reinstatement, Tommy and 

Susan resisted. At oral argument before this court, they disputed any attempt to read their answer as having asserted a 

counterclaim. One can scarcely imagine any more that they 

8 See, Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 

(1980); Miller v. Harris, 195 Neb. 75, 236 N.W.2d 828 (1975).

9 See Horton v. State, 63 Neb. 34, 88 N.W. 146 (1901).

10 See, Kansas Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 

865 (2002); Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 

(1928).

11 Kansas Bankers Surety Co. v. Halford, supra note 10, 263 Neb. at 978, 

644 N.W.2d at 870 (quoting Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 

492 (1951)).
- 16 -

Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

SCHAAF V. SCHAAF

Cite as 312 Neb. 1

might have done to acquiesce in the copersonal representatives’ 

voluntary dismissal.

The net effect of this court’s decision is to impose upon 

Tommy and Susan the “benefit” of a partial summary judgment 

that they gave up by acquiescing in the dismissal. It rewards 

the copersonal representatives’ forum shopping and allows 

them to “have [their] cake and eat it too.”

The majority opinion teaches defendants that after a motion 

for summary judgment has been granted in any respect, they 

dare not rely upon a plaintiff’s voluntary dismissal. I suggest 

that this turns the law upside down and shields a dismissing 

party from the consequences of its own conduct. I respectfully dissent.