Decisions of the Nebraska Court of Appeals

218 22 NEBRASKA APPELLATE REPORTS

CONCLUSION

For the foregoing reasons, we find the trial court abused its 

discretion in prohibiting Wulf from collaterally attacking the 

county court’s judgment. We therefore reverse the conviction 

and remand the cause for a new trial.

Reversed and remanded for a new trial.

Dwayne Sartain and Lisa Sartain, appellants and

cross-appellees, v. Wohlenhaus Appraisal Service

and Dan Spence, appellees, and Countrywide

Home Loans, a foreign corporation, 

appellee and cross-appellant.

___ N.W.2d ___

Filed July 22, 2014. No. A-13-346.

1. Dismissal and Nonsuit: Judgments: Appeal and Error. Denial of a plaintiff’s 

voluntary dismissal of claims presents a question of law, regarding which the 

appellate court reaches a conclusion independent of the lower court’s ruling.

2. Dismissal and Nonsuit. An action may be dismissed without prejudice to a 

future action by the plaintiff, before the final submission of the case to the jury 

or to the court where the trial is by the court.

3. Words and Phrases. A final submission of a case contemplates a submission on 

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

render it complete.

4. Directed Verdict: Dismissal and Nonsuit. After a defendant has moved for a 

directed verdict and both counsel have completed their argument on that motion, 

a case is under final submission as contemplated in Neb. Rev. Stat. § 25-601 

(Reissue 2008), and the plaintiff no longer has an absolute right to dismiss without prejudice.

5. ____: ____. If a motion for directed verdict is made at the close of the plaintiff’s 

case, the plaintiff loses the absolute right to dismiss without prejudice until such 

time as the court overrules the motion.

6. Directed Verdict. A motion for directed verdict is a request for the court to 

decide, as a matter of law, whether there are any questions of fact for a jury 

to decide.

7. Summary Judgment. In a motion for summary judgment, the court is requested 

to determine as a matter of law that no genuine issue of material fact exists and 

that the moving party is entitled to judgment as a matter of law.

8. Dismissal and Nonsuit. A plaintiff has an absolute right to dismiss any time 

before final submission of the case, and when such right exists, the court can 

only exercise discretion in denying dismissal when it would result in the loss of 

a substantial right of the defendant.
Decisions of the Nebraska Court of Appeals

SARTAIN v. WOHLENHAUS APPRAISAL SERV. 219

Cite as 22 Neb. App. 218

Appeal from the District Court for Douglas County: Thomas

A. Otepka, Judge. Affirmed.

Ryan J. Lewis and W. Gregory Lake, of Lewis, Pfanstiel & 

Reed, L.L.C., for appellants.

Mary M. Schott, of Sodoro, Daly, Shomaker & Selde, P.C., 

L.L.O., for appellee Wohlenhaus Appraisal Service.

Douglas W. Ruge II for appellee Dan Spence.

Jennifer D. Tricker, of Baird Holm, L.L.P., for appellee 

Countrywide Home Loans.

Moore, Pirtle, and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Dwayne Sartain and Lisa Sartain sought to dismiss their 

negligence action against Wohlenhaus Appraisal Service 

(Wohlenhaus), Dan Spence, and Countrywide Home Loans 

(collectively the defendants) after the defendants filed, briefed, 

and argued summary judgment motions. The district court for 

Douglas County sustained the defendants’ motions to strike 

the Sartains’ notice of dismissal and granted the defendants’ 

motions for summary judgment. The Sartains appeal the district court’s order striking their notice of dismissal.

Countrywide Home Loans has also filed a cross-appeal, 

assigning as error the district court’s refusal to grant its motion 

to dismiss the Sartains’ claim on the basis that the statute of 

limitations had expired. Because we affirm the district court’s 

order striking the notice of dismissal, and the Sartains have not 

appealed the grant of summary judgment, we need not address 

Countrywide Home Loans’ cross-appeal.

BACKGROUND

The Sartains filed a second amended complaint in August 

2011, alleging the defendants made negligent and fraudulent misrepresentations during the course of a real estate 

transaction that occurred in 2006. In May 2012, Wohlenhaus 
Decisions of the Nebraska Court of Appeals

220 22 NEBRASKA APPELLATE REPORTS

served written discovery upon the Sartains, but they failed to 

respond, even after motions to compel were filed. The court 

imposed sanctions, including a provision that if the Sartains 

failed to timely respond, they would be prohibited from introducing evidence against Wohlenhaus at trial.

Trial was scheduled for March 18, 2013. The Sartains failed 

to timely identify expert witnesses as required by the court’s 

scheduling order and failed to fully respond to discovery 

requests as required by the court’s order compelling discovery 

responses. In an attempt to cure these deficiencies, the Sartains 

filed a late expert witness designation and served supplemental answers to interrogatories. The defendants moved to strike 

these submissions and further sought sanctions against the 

Sartains for their failure to allow the defendants’ appraisal 

expert access to the property. All the defendants also filed 

motions for summary judgment. On March 5, a hearing was 

held on various motions filed by the defendants that sought to 

exclude the Sartains’ experts, to prohibit them from offering 

evidence that would support a claim for damages, to impose 

sanctions of an adverse inference instruction relating to damages, and to grant summary judgment.

On the morning of March 13, 2013, the court sent an e-mail 

to all parties informing them that the court was granting the 

motions to strike, the motions in limine, and the motion for 

sanctions. As a result, the Sartains were informed that they 

would not be able to put forth any expert witnesses at trial and 

that an adverse inference jury instruction would be given. In 

essence, the e-mail advised the Sartains that they would be prohibited from proving the existence of any damages at trial. The 

court further advised that it would be ruling on the motions 

for summary judgment in the next few days. Later that same 

day, the Sartains filed a notice of dismissal of their complaint 

without prejudice.

The defendants filed motions to strike the notice of dismissal, and a hearing was held on March 15, 2013. The court 

sustained the motions to strike and issued summary judgment 

in favor of the defendants. The Sartains timely appeal.
Decisions of the Nebraska Court of Appeals

SARTAIN v. WOHLENHAUS APPRAISAL SERV. 221

Cite as 22 Neb. App. 218

ASSIGNMENT OF ERROR

The Sartains’ sole assignment of error is that the trial 

court erred in sustaining the defendants’ motions to strike the 

Sartains’ notice of dismissal.

STANDARD OF REVIEW

[1] Denial of a plaintiff’s voluntary dismissal of claims 

presents a question of law, regarding which the appellate court 

reaches a conclusion independent of the lower court’s ruling. 

See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 

N.W.2d 894 (1999).

ANALYSIS

[2,3] Neb. Rev. Stat. § 25-601(1) (Reissue 2008) governs 

voluntary dismissals without prejudice. It states in part that 

“[a]n action may be dismissed without prejudice to a future 

action (1) by the plaintiff, before the final submission of the 

case to the jury, or to the court where the trial is by the court.” 

A “final submission” contemplates a submission on both the 

law and the facts, and it exists only when nothing remains 

to be done to render it complete. See Koll v. Stanton-Pilger 

Drainage Dist., 207 Neb. 425, 299 N.W.2d 435 (1980).

The Nebraska Supreme Court, long ago, articulated the reason for the rule:

No case has been cited where under a statute like ours a 

plaintiff as a matter of right can dismiss his action after 

it has been submitted to the court. If he could do so 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. 

The statute, therefore, limits the right of a plaintiff to 

dismiss to the final submission of the case.

State v. Scott, 22 Neb. 628, 640, 36 N.W. 121, 126-27 (1888).

[4,5] Our appellate courts have not addressed whether a 

case in which a motion for summary judgment has been 

briefed and argued constitutes a final submission of the case. 

However, after a defendant has moved for a directed verdict 
Decisions of the Nebraska Court of Appeals

222 22 NEBRASKA APPELLATE REPORTS

and both counsel have completed their argument on that 

motion, a case is under final submission as contemplated in 

§ 25-601 and the plaintiff no longer has an absolute right to 

dismiss without prejudice. See Collection Specialists v. Vesely, 

238 Neb. 181, 469 N.W.2d 549 (1991). Even if the motion for 

directed verdict is made at the close of the plaintiff’s case, the 

plaintiff loses the absolute right to dismiss without prejudice 

until such time as the court overrules the motion. See Miller v. 

Harris, 195 Neb. 75, 236 N.W.2d 828 (1975).

[6,7] The reason for considering the submission of a motion 

for directed verdict as a final submission to the court within the 

meaning of § 25-601 is that such a motion is a request for the 

court to decide, as a matter of law, whether there are any questions of fact for a jury to decide. See Miller v. Harris, supra. 

Likewise, in a motion for summary judgment, the court is 

requested to determine as a matter of law that no genuine issue 

of material fact exists and that the moving party is entitled to 

judgment as a matter of law. See Harris v. O’Connor, 287 Neb. 

182, 842 N.W.2d 50 (2014).

The Sartains rely upon Kansas Bankers Surety Co. v. Halford, 

263 Neb. 971, 644 N.W.2d 865 (2002), to support their contention that a motion for summary judgment is not a final submission for purposes of § 25-601; however, their reliance on this 

case is misplaced because of the different posture of the motion 

at the time the dismissal was filed.

[8] In Kansas Bankers Surety Co. v. Halford, supra, the 

defendant had filed a motion for summary judgment, but the 

plaintiff had not yet filed his brief; instead, he filed a motion 

to dismiss with prejudice. Section 25-601 applies to motions 

to dismiss without prejudice; therefore, this statute arguably 

did not govern the dismissal in Halford. Furthermore, there 

had been no final submission of the case because the summary judgment motion had not yet been fully briefed and 

argued. The court noted it had previously held that a plaintiff 

has an absolute right to dismiss any time before final submission of the case and that when such right exists, the court can 

only exercise discretion in denying dismissal when it would 

result in the loss of a substantial right of the defendant. See 

Blue River Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 
Decisions of the Nebraska Court of Appeals

SARTAIN v. WOHLENHAUS APPRAISAL SERV. 223

Cite as 22 Neb. App. 218

(1928) (stating that under identical statutory language, plaintiff 

may dismiss his action as matter of right before final submission if it does not prejudice defendant). The Halford court 

ultimately concluded that the plaintiff had a right to dismiss 

its case because it would not result in the loss of a substantial right of the defendant because he had not filed a setoff 

or counterclaim.

Based upon the facts of this case, the Sartains no longer had 

an absolute right to dismiss without prejudice because there 

had been a final submission to the court. Therefore, we find 

the trial court did not err in striking the notice of dismissal. 

The Sartains have not appealed the granting of the defendants’ 

motions for summary judgment, and therefore that issue is not 

before us.

CONCLUSION

Once the motion for summary judgment was taken under 

advisement, there was a final submission of the case and the 

Sartains no longer had an absolute right to dismiss their complaint without prejudice. The trial court did not err, therefore, 

in striking their notice to dismiss.

Affirmed.