- 809 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

Tara and James Woodcock, husband and wife, and

Gary and Martha Ellen Dimmitt, husband

and wife, appellants, v. Anthony

Navarrete-James, appellee.

___ N.W.2d ___

Filed January 29, 2019. No. A-17-722.

1. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the 

pleadings is properly granted when it appears from the pleadings that 

only questions of law are presented.

2. Motions to Vacate: Appeal and Error. In reviewing a trial court’s 

action in vacating or refusing to vacate a judgment or order, an appellate 

court will uphold and affirm the trial court’s action in the absence of an 

abuse of discretion.

3. Pleadings: Proof: Dismissal and Nonsuit. A motion seeking dismissal 

of a complaint for failure to state a cause of action should be granted 

only if it appears beyond doubt that the plaintiff can prove no set of 

facts which would entitle him or her to relief.

4. Courts: Judgments: Time. After the final adjournment of the term of 

court at which a judgment has been rendered, the court has no authority 

or power to vacate or modify the judgment except for the reasons stated 

and within the time limited in Neb. Rev. Stat. § 25-2001 (Reissue 2016).

5. Attorney and Client: Negligence: Judgments: Time. Lack of diligence 

or negligence of counsel is not an unavoidable casualty or misfortune in 

the context of Neb. Rev. Stat. § 25-2001(4)(f) (Reissue 2016) entitling 

the applicant to vacation of judgment after adjournment of term at which 

judgment has been rendered.

6. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the 

pleadings is properly granted when it appears from the pleadings that 

only questions of law are presented.

7. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Nebraska Supreme Court Online Library

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

01/29/2019 08:08 AM CST
- 810 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

Appeal from the District Court for Lincoln County: Donald

E. Rowlands, Judge. Reversed and remanded for further 

proceedings.

James C. Bocott, of Law Office of James C. Bocott, P.C., 

L.L.O., for appellants.

Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, 

Hurd, Luers & Ahl, L.L.P., for appellee.

Pirtle, Riedmann, and Bishop, Judges.

Per Curiam.

INTRODUCTION

Tara and James Woodcock, husband and wife, and Gary and 

Martha Ellen Dimmitt, husband and wife (collectively appellants), appeal from an order of the district court for Lincoln 

County dismissing their amended complaint seeking to vacate 

or modify a prior order that dismissed appellants’ personal 

injury case against Anthony Navarrete-James and Yolanda 

Sanchez. Based on the reasons that follow, we reverse, and 

remand for further proceedings.

BACKGROUND

On June 20, 2009, appellants were injured as a result of a 

motor vehicle accident caused by Navarrete-James’ negligence 

in failing to stop at a red light. Appellants hired an attorney 

and filed a lawsuit in the district court for Lincoln County, 

case No. CI 13-349, against Navarrete-James and Sanchez. 

Appellants believed their attorney was doing what was necessary to pursue the matter and represent their interests. In 

November 2015, appellants learned that their lawsuit had been 

dismissed on September 3 for failure of their attorney to follow the court’s orders on various motions to compel discovery 

requests. On December 31, appellants’ attorney filed a motion 

to reinstate the dismissed lawsuit, and on March 17, 2016, the 

district court denied the motion. On March 25, appellants filed 

a motion to alter or amend the judgment or, alternatively, to 
- 811 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

vacate and set aside the March 17 order. On April 27, the court 

entered an order reinstating appellants’ case.

Navarrete-James and Sanchez filed a motion to vacate 

the court’s April 27, 2016, order, which had reinstated the 

case. Upon further consideration, the court decided that its 

September 3, 2015, order (dismissing appellants’ personal 

injury action) was final and disposed of all issues in the case. 

The court further determined that because it was a final order, 

and because the term of the court had already ended before 

appellants filed their March 25, 2016, motion to alter or amend 

the judgment, the court had no authority or power to vacate or 

modify the judgment except for the reasons stated in Neb. Rev. 

Stat. § 25-2001 (Reissue 2016). The court found that none of 

the statutory reasons for allowing a modification beyond the 

term identified in § 25-2001 were present, and on August 1, 

the court ordered that its April 27 order was null and void, and 

dismissed case No. CI 13-349 without prejudice. Appellants 

appealed the August 1 order, but dismissed the appeal before it 

was submitted to this court.

Appellants then filed a new action in the district court for 

Lincoln County, case No. CI 16-648, pursuant to Neb. Rev. 

Stat. § 25-2002 (Reissue 2016), which provides in relevant 

part: “The proceedings to vacate or modify the judgment or 

order on the grounds mentioned in subsection (4) of section 

25-2001 shall be by complaint, setting forth the judgment or 

order, the grounds to vacate or modify it, and the defense to 

the action, if the party applying was defendant.” The amended 

complaint alleged two “causes of action.” The first alleged 

that their personal injury case should be reinstated based on 

§ 25-2001(4)(f), and the second alleged that they were entitled 

to equitable relief. Appellants claimed they were unaware 

their attorney had failed to comply with discovery, they were 

repeatedly reassured that their case was progressing satisfactorily, they were completely unaware their lawsuit was in jeopardy of being dismissed, and they were never advised of any 

problems or impending deadlines. Appellants also stated that 
- 812 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

their attorney suffered multiple health and family problems in 

2014 and 2015, which he claimed impacted his ability to diligently pursue appellants’ personal injury lawsuit.

With regard to the second “cause of action,” the amended 

complaint stated that if the court determined appellants had no 

remedy under § 25-2001(4)(f), they had no adequate remedy at 

law and it would be necessary for the court to use its independent and concurrent equitable jurisdiction to vacate the court’s 

March 17, 2016, order.

Navarrete-James filed a motion for judgment on the pleadings. At the hearing on the motion, appellants acknowledged that Sanchez had not been served within 6 months of 

the filing of the complaint as required by Neb. Rev. Stat. 

§ 25-517.02 (Reissue 2016). Accordingly, the district court 

dismissed Sanchez from the case and dismissed the case 

against her without prejudice. Appellants do not contest this 

decision in their appeal.

Following the hearing, the trial court found that appellants’ amended complaint was properly before it pursuant 

to § 25-2002, but that appellants had failed to state a claim. 

The court granted Navarrete-James’ motion for judgment on 

the pleadings and dismissed the case with prejudice as to 

Navarrete-James. The court found, as it had already held in 

case No. CI 13-349, that none of the statutory reasons for 

allowing a modification or vacation beyond the term identified 

in § 25-2001 were present. It specifically found that appellants 

did not meet the statutory condition for reinstatement under 

§ 25-2001(4)(f), as they alleged. The court also concluded 

that it could not apply its equity powers to reinstate case No. 

CI 13-349 because “[appellants] have tried to avail themselves 

of the statutory remedy, and . . . equity will not lie where there 

is a statutory remedy.”

ASSIGNMENTS OF ERROR

Appellants assign that the trial court erred by (1) dismissing 

their amended complaint for failure to state a cause of action 
- 813 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

and (2) concluding there was no equitable basis for relief 

because they had an adequate remedy at law.

STANDARD OF REVIEW

[1] A motion for judgment on the pleadings is properly 

granted when it appears from the pleadings that only questions 

of law are presented. In re Trust Created by Hansen, 274 Neb. 

199, 739 N.W.2d 170 (2007).

[2] In reviewing a trial court’s action in vacating or refusing 

to vacate a judgment or order, an appellate court will uphold 

and affirm the trial court’s action in the absence of an abuse of 

discretion. See In re Estate of West, 226 Neb. 813, 415 N.W.2d 

769 (1987).

ANALYSIS

[3] Appellants contend the district court erred by dismissing their amended complaint on the pleadings because there 

were issues of fact which required resolution. A motion seeking dismissal of a complaint for failure to state a cause of 

action should be granted only if it appears beyond doubt that 

the plaintiff can prove no set of facts which would entitle 

him or her to relief. Dennes v. Dunning, 14 Neb. App. 934, 

719 N.W.2d 737 (2006). The trial court found that appellants 

could prove no set of facts under § 25-2001(4)(f) which would 

allow the court to vacate its March 17, 2016, order in case No. 

CI 13-349 and reinstate their personal injury action. However, 

we conclude there are issues of fact yet to be determined under 

the applicable legal principles, as discussed next.

[4] Our law is well settled that after the final adjournment of 

the term of court at which a judgment has been rendered, the 

court has no authority or power to vacate or modify the judgment except for the reasons stated and within the time limited 

in § 25-2001. See Emry v. American Honda Motor Co., 214 

Neb. 435, 334 N.W.2d 786 (1983). Appellants’ first “cause of 

action” in their amended complaint sought reinstatement of 

their personal injury case based on § 25-2001, specifically subsection (4)(f). Section 25-2001(4) provides: “A district court 
- 814 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

may vacate or modify its own judgments or orders after the 

term at which such judgments or orders were made . . . (f) for 

unavoidable casualty or misfortune, preventing the party from 

prosecuting or defending . . . .”

The unavoidable casualty or misfortune appellants allege 

is based on the actions of their former attorney who failed to 

respond to discovery even after being warned that the case 

would be dismissed if appellants did not respond to the discovery. Appellants claim that their former attorney did not 

forward copies of pleadings to them, but repeatedly reassured them that their case was progressing satisfactorily. And 

despite being in contact with their attorney, the attorney never 

advised them of any problems or impending deadlines; they 

were completely unaware their lawsuit was in jeopardy of 

being dismissed.

[5] The rule is well-established in Nebraska that lack of diligence or negligence of counsel is not an unavoidable casualty 

or misfortune in the context of § 25-2001(4)(f) entitling the 

applicant to vacation of judgment after adjournment of term 

at which judgment has been rendered. See, Emry v. American 

Honda Motor Co., supra; Shipley v. McNeel, 149 Neb. 793, 

32 N.W.2d 636 (1948); Lyman v. Dunn, 125 Neb. 770, 252 

N.W. 197 (1934). Relying on Emry v. American Honda Motor 

Co., supra, the trial court held that “[a]lthough the negligence of counsel was a misfortune, it was not necessarily 

unavoidable, and . . . it did not prevent the [appellants] from 

prosecuting their case so as to come under § 25-2001(4)(f).” 

Appellants argue that the court’s reliance on Emry was misplaced because it can be distinguished from the present case. 

We agree.

In Emry, plaintiff was represented by an attorney in Omaha, 

Nebraska, and two partners from a law firm in Minnesota. 

Plaintiff’s attorney did not respond to defendants’ discovery 

requests, and the court issued a second order to show cause 

why the case should not be dismissed. During the period of 

inaction that led to the second show cause order, plaintiff’s 
- 815 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

principal attorney in Minnesota died in July 1978 and his 

partner began to distribute some of his cases to other attorneys 

and asked an Omaha attorney to handle plaintiff’s case. The 

partner forwarded plaintiff’s file to the Omaha attorney in 

August 1979. The Omaha attorney did not accept representation until July 1980, and at that time, he found out the case 

had been dismissed in May. He then filed a petition to vacate 

the dismissal based upon § 25-2001, which the trial court 

granted, thereby reinstating plaintiff’s products liability case. 

Defendants appealed.

On appeal, the Nebraska Supreme Court noted that there 

was confusion as a result of the Minnesota attorney’s death, but 

that nothing was done to move the case forward from the time 

of his death in 1978 until the second order to show cause was 

entered in 1980. The court held that the attorney’s death probably was an unavoidable casualty or misfortune, but the death 

did not prevent plaintiff from prosecuting his claim. The court 

further stated:

It would seem that 2 years was certainly a long enough 

time for the confusion resulting from [the attorney’s] 

death to subside. Even if there were lingering confusion 

as to who was handling the case, the respective attorneys 

might have at least recognized that there was confusion 

and governed themselves accordingly. We believe that 

this appeal could have easily been avoided; for example, 

if there had been formal appearances and withdrawals of 

the attorneys of record.

Emry v. American Honda Motor Co., 214 Neb. 435, 444, 

334 N.W.2d 786, 792 (1983) (emphasis in original). The 

court then cited the rule that lack of diligence or negligence 

of counsel is not an unavoidable casualty or misfortune. 

Certainly, the record before us would indicate that some of 

appellants’ former attorney’s actions may be characterized as 

lack of diligence or negligence. However, other actions by 

the attorney may rise to the level of intentional misstatements 

or misrepresentations or dishonesty; such actions have been 
- 816 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

viewed differently when considering unavoidable casualty 

or misfortune.

Appellants cite us to the case of Anthony & Co. v. Karbach, 

64 Neb. 509, 90 N.W. 243 (1902), which we find more applicable to the present situation than the case of Emry v. American 

Honda Motor Co., supra. In Anthony & Co., plaintiff filed suit 

against two defendants, seeking a judgment for monetary damages. Defendants retained an attorney to represent them in the 

litigation. The attorney informed defendants several times that 

he had done certain things, but defendants later learned the 

attorney had taken no action to protect their interests and that 

a default judgment in the amount of $2,211.25 plus costs had 

been entered against them several months earlier. Now outside the previous court term, they sought to vacate the default 

judgment and requested a new trial. The district court agreed 

and vacated the judgment. Plaintiff appealed; one argument on 

appeal was that the facts were not such to bring the case within 

any of the grounds specified by statute “for the vacation of 

judgments after the term at which they have been rendered.” 

Anthony & Co. v. Karbach, 64 Neb. at 512, 90 N.W. at 244. 

The Nebraska Supreme Court affirmed the decision of the district court, and as relevant here, stated:

One of the grounds specified . . . is unavoidable casualty 

or misfortune, preventing the party from prosecuting or 

defending. The word “casualty” means accident; that 

which comes by chance, or without design, or without 

being a foreseen contingency. The word “misfortune” 

means ill-luck; ill-fortune; calamity; evil or cross accident. We do not believe it requires any stretch of language to hold that one who has suffered by the dishonesty 

of his attorney, an officer of the court, as shown by the 

record in this case, is a victim of casualty and misfortune, 

as above defined. Where any injury or mishap befalls one, 

through unforeseen circumstances, which can not ordinarily be guarded against, it is misfortune.

Id.
- 817 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

We conclude the present case is distinguishable from Emry 

and is more akin to the Anthony & Co. case. In the amended 

complaint at issue, appellants alleged that they understood that 

their attorney was doing what was necessary to diligently pursue their claim and competently represent their interests; they 

were unaware that their attorney had not responded to discovery requests; they were led to believe and did believe that their 

interests were being adequately represented; and at all times, 

appellants were compliant and responsive to any requests or 

demands made by their attorney for information necessary 

to respond to discovery requests. Most important, appellants 

alleged that they were “1) repeated[ly] reassured that their 

case was progressing satisfactorily; 2) completely unaware that 

their lawsuit was in jeopardy of being dismissed; and, 3) never 

advised of any problems or impending deadlines, despite being 

in contact with their attorney.”

In Emry v. American Honda Motor Co., 214 Neb. 435, 

334 N.W.2d 786 (1983), in contrast to the present case, 

there is no indication of any communication between plaintiff and counsel between the time the attorney died and the 

case was dismissed. There was confusion created after the 

death of counsel, but no indication that plaintiff was misled 

into believing that the case was progressing satisfactorily.

In the present case, unlike Emry, appellants allege that they 

had no reason to believe their case was in jeopardy of being 

dismissed as a result of their attorney’s failure to comply 

with discovery; their attorney did not provide them copies of 

pleadings, including motions to compel or motions to dismiss. 

Appellants were in contact with their attorney, provided information to the attorney when asked, and were reassured by the 

attorney that the case was progressing forward. The attorney’s 

reassurances to appellants in the instant case, as alleged in the 

amended complaint, amount to more than a lack of diligence 

or negligence. The attorney’s actions appear to have been dishonest, with the intention of misleading appellants; these are 

behaviors which the Nebraska Supreme Court has determined 
- 818 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

may constitute unavoidable casualty or misfortune, as discussed above.

The dissent concludes that a recent decision by the Nebraska 

Supreme Court resolves any possible factual issues and controls the outcome of this appeal. The Supreme Court reviewed 

the attorney disciplinary proceeding brought against appellants’ former attorney, Martin Troshynski, and the opinion was 

released following oral argument in this case. See State ex rel. 

Counsel for Dis. v. Troshynski, 300 Neb. 763, 916 N.W.2d 57 

(2018). In the disciplinary case, the grievance filed by appellants herein and another former client was based primarily 

upon omissions by the attorney, whereas in the present case, 

appellants alleged they were “repeated[ly] reassured that their 

case was progressing satisfactorily.” The latter is a claim of 

dishonesty which is not mentioned in the Supreme Court’s 

opinion. Also, Neb. Ct. R. § 3-320 states:

The acquittal of the member on criminal charges or a verdict or judgment in the member’s favor in civil litigation 

involving material allegations similar in substance to a 

Grievance, Complaint, or Formal Charge shall not in and 

of itself justify termination of disciplinary proceedings 

predicated upon the same or substantially the same material allegations.

This would appear to create a divide between attorney discipline and the underlying case upon which the disciplinary 

action is based. Grounds for discipline include violation of 

an attorney’s oath or of the Nebraska Rules of Professional 

Conduct. See Neb. Ct. R. § 3-303. And that violation can 

be either negligent or intentional. We conclude the attorney 

discipline case does not control the outcome of the present appeal because an attorney disciplinary action is based 

upon a violation of the oath of office or the Nebraska Rules 

of Professional Conduct, which can be either negligent or 

intentional, and the rules do not require proof of which theory 

underlies the grievance. In the appeal before us, there are allegations of affirmative statements by the attorney which were 
- 819 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

dishonest and appear to have been made with the intention 

of misleading appellants. Whether such facts can be proved 

remain the burden of appellants; however, because questions 

of fact remain, judgment and dismissal on the pleadings was 

not appropriate.

[6] A motion for judgment on the pleadings is properly 

granted when it appears from the pleadings that only questions of law are presented. In re Trust Created by Hansen, 

274 Neb. 199, 739 N.W.2d 170 (2007). As already noted, 

appellants’ amended complaint raises more than questions of 

law. Appellants alleged that their attorney misled them and 

repeatedly reassured them that their case was progressing satisfactorily. We conclude that appellants’ amended complaint 

raises questions of fact as to whether the actions of their attorney amount to an unavoidable casualty or misfortune which 

prevented them from prosecuting their case, in the context of 

§ 25-2001(4)(f). The motion for judgment on the pleadings 

should have been denied.

[7] Because we conclude that the motion for judgment on the 

pleadings should have been denied based on § 25-2001(4)(f), 

we need not address appellants’ argument that the trial court 

erred in concluding that there was no equitable basis for relief. 

See Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018) 

(appellate court not obligated to engage in analysis not necessary to adjudicate case and controversy before it).

CONCLUSION

The district court erred by granting Navarrete-James’ motion 

for judgment on the pleadings and dismissing appellants’ case 

with prejudice.

 Reversed and remanded for

further proceedings.

Pirtle, Judge, dissenting.

While I am sympathetic to the plight of appellants, and I 

fully appreciate that the result reached previously by the district court may appear harsh and unfair, I respectfully dissent 
- 820 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

from the majority’s conclusion that the district court erred in 

granting Navarrete-James’ motion for judgment on the pleadings. I disagree with the majority’s determination that the 

amended complaint raises questions of fact as to whether counsel’s actions amounted to unavoidable casualty or misfortune 

which prevented appellants from prosecuting their personal 

injury case.

As stated in the majority opinion, the lack of diligence or 

negligence of counsel is not unavoidable casualty or misfortune in the context of § 25-2001(4)(f) entitling the applicant 

to vacation of judgment after adjournment of term at which 

judgment has been rendered. Emry v. American Honda Motor 

Co., 214 Neb. 435, 334 N.W.2d 786 (1983). I would conclude 

that appellants’ counsel’s actions as alleged in the amended 

complaint were clearly due to lack of diligence or negligence 

of counsel and that therefore, there is no question of fact.

My conclusion that there is no question of fact that counsel’s actions were due to lack of diligence or negligence of 

counsel, such that § 25-2001(4)(f) does not apply, is based 

on the allegations contained within the amended complaint 

itself filed by appellants in the district court and the Nebraska 

Supreme Court’s recent decision in State ex rel. Counsel for 

Dis. v. Troshynski, 300 Neb. 763, 916 N.W.2d 57 (2018). The 

court discusses counsel’s failure to comply with discovery 

requests in appellants’ personal injury lawsuit against appellees, resulting in the dismissal of appellants’ case. The court 

noted that the referee determined that the evidence showed that 

“the clients . . . suffered greatly from [counsel’s] negligence.” 

Id. at 767-68, 916 N.W.2d at 60 (emphasis supplied). The court 

found that the facts were undisputed and were established by 

clear and convincing evidence. It concluded that counsel violated several provisions of the Nebraska Rules of Professional 

Conduct and violated his oath of office as a licensed attorney 

during the time he represented appellants.

In the amended complaint before us now, appellants alleged 

that they were unaware that their attorney had failed to comply 
- 821 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

WOODCOCK v. NAVARRETE-JAMES

Cite as 26 Neb. App. 809

with discovery, that they were repeatedly reassured that their 

case was progressing satisfactorily, that they were completely 

unaware their lawsuit was in jeopardy of being dismissed, and 

that they were never advised of any problems or impending 

deadlines. Appellants also stated that their counsel suffered 

multiple health and family problems in 2014 and 2015 that 

he now claims impacted his ability to diligently pursue appellants’ personal injury lawsuit. Appellants made no allegations 

that their counsel hid information or prevented them from following the progress of their case, or lack thereof, nor did they 

allege that he committed any fraud or deceit or that any of his 

actions were intentional.

Because the Supreme Court has found that counsel’s actions 

were negligent, there can be no question of fact as to whether 

counsel’s actions amounted to unavoidable casualty or misfortune which prevented appellants from prosecuting their 

personal injury case. I believe the district court correctly 

found that appellants were not entitled to relief pursuant to 

§ 25-2001(4)(f) and did not err in granting Navarrete-James’ 

motion for judgment on the pleadings.

I would conclude, therefore, that the district court did not err 

in refusing to vacate the March 17, 2016, order and reinstate 

their case.