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In re Estate of Dvorak3/5/1999
Designated for Permanent Publication
1. Judgments: Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a Conclusion independent of the trial court.
2. Jurisdiction: Appeal and Error. It not only is within the power, but it is the duty of an appellate court to determine whether the appellate court has jurisdiction over the matter before it. When lack of jurisdiction is apparent on the face of the record, yet the parties fail to raise it, it is the duty of a reviewing court to raise and determine the issue of jurisdiction sua sponte.
3. Motions for New Trial: Final Orders: Appeal and Error. Where the record shows the filing of a motion for new trial, but no final, appealable order by the trial court disposing of the motion, an attempted appeal in the action will be dismissed as prematurely taken.
4. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
5. ____. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.
6. ____. Where reasonable minds differ as to whether an inference supporting the ultimate Conclusion can be drawn, summary judgment should not be granted.
7. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
8. Negligence: Contracts: Contractors and Subcontractors: Damages: Liability. Under the accepted work doctrine, a construction contractor is not liable for injuries or damage to a third person with whom he is not in contractual relation resulting from the negligent performance of his duty under his contract with the contractee where the injury or damage is sustained after the work is completed and accepted by the owner.
Appeal from the District Court for Saline County: ORVILLE L. COADY, Judge. Reversed and remanded for further proceedings. Cross-appeal dismissed.
NATURE OF CASE
This opinion addresses an appeal filed by Bunge Corporation (Bunge) and a cross-appeal by Joyce Dvorak (Dvorak), personal representative of the estate of David Dvorak, deceased, regarding summary judgments entered in favor of Harold K. Scholz Company (Scholz).
SCOPE OF REVIEW
The question of jurisdiction is a question of law, upon which an appellate court reaches a Conclusion independent of the trial court. Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W 2d 271 (1998).
It not only is within the power, but it is the duty of an appellate court to determine whether the appellate court has jurisdiction over the matter before it. In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996). When lack of jurisdiction is apparent on the face of the record, yet the parties fail to raise it, it is the duty of a reviewing court to raise and determine the issue of jurisdiction sua sponte. Id.
FACTUAL BACKGROUND
In 1987, Lauhoff Grain Company (Lauhoff) began renovating the electrical power distribution system at its Crete Mills facility. Over the Labor Day weekend, the plant shut down in order to connect the new power distribution equipment. Scholz had been
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