E.D. v. Bellevue Pub. Sch. Dist. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2018 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
E.D., appellee and cross-appellee, v. Bellevue Public
School District, appellant, and Bradley Nord,
appellee and cross-appellant.
___ N.W.2d ___
Filed April 13, 2018. No. S-17-590.
1. Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the
decision made by the lower court.
2. ____: ____. 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.
3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
4. Jurisdiction: Statutes: Appeal and Error. Appellate jurisdiction in
Nebraska is purely statutory.
5. Courts: Jurisdiction: Legislature: Statutes: Appeal and Error.
Through the enactment of statutes, the Legislature has prescribed when
a court may exercise appellate jurisdiction; the judicial branch may not
circumvent such statutory authorization.
6. Courts: Legislature: Statutes: Time: Appeal and Error. Just as courts
have no power to extend the time set by the Legislature for taking an
appeal, courts have no power to allow an appeal when it is not autho-
rized by statute.
7. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
8. Jurisdiction: Statutes: Judgments: Final Orders: Appeal and
Error: Case Overruled. The Nebraska Supreme Court’s decision in
StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271
(2011), modified on denial of rehearing 281 Neb. 978, 802 N.W.2d
420, is overruled to the extent that it authorized appellate jurisdiction
in the absence of a judgment or final order and without specific statu-
tory authorization.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
Appeal from the District Court for Sarpy County: George
A. Thompson and Stefanie A. M artinez, Judges. Appeal
dismissed.
Jeanelle R. Lust and Carly Bahramzad, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellant.
Matthew A. Lathrop, of Law Office of Matthew A. Lathrop,
for appellee E.D.
Thomas J. Culhane and Matthew B. Reilly, of Erickson &
Sederstrom, P.C., for appellee Bradley Nord.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Steinke, District Judge.
Funke, J.
E.D. brought suit against the Bellevue Public School District
(BPS) and Bradley Nord, under the Political Subdivisions Tort
Claims Act (PSTCA).1 This is an appeal and cross-appeal from
an order overruling claims of sovereign immunity in sepa-
rate motions to dismiss. Because an appeal from the order
at issue is not statutorily authorized, we dismiss the appeal
and cross-appeal.
BACKGROUND
In November 2016, E.D. filed a complaint in district court
alleging various negligence claims against BPS and Nord. In
the complaint, E.D. alleged, inter alia, the following: While
Nord was a BPS teacher and E.D. was a BPS student, above
the age of legal consent, Nord made nonconsensual sexual con-
tact with E.D. that began a nearly yearlong sexual relationship
between the two occurring primarily on BPS premises.
E.D.’s negligence claims assert, generally, that BPS breached
its duty to provide a safe environment to students and to
enact reasonable policies governing an extracurricular teacher’s
1
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
aide program, which paired E.D. and Nord, to protect stu-
dents. E.D. claims that her harm was a foreseeable result of
BPS’ negligence.
BPS and Nord filed separate motions to dismiss claim-
ing sovereign immunity under the PSTCA’s intentional tort
exception,2 which motions the court denied. Nord filed a
motion to reconsider or to alter or amend, which the court also
denied. BPS filed a timely appeal, and Nord cross-appealed.
The Nebraska Court of Appeals dismissed BPS’ appeal for
lack of jurisdiction, under Neb. Ct. R. App. P. § 2-107(A)(2)
(rev. 2017), finding the ruling on the motion to dismiss was
not a final, appealable order. BPS filed a motion for reconsid-
eration. The Court of Appeals granted the motion for reconsid-
eration and reinstated the appeal. We removed the case to our
docket on our own motion pursuant to our authority to regulate
the caseloads of the Court of Appeals and this court.3
ASSIGNMENTS OF ERROR
BPS assigns, restated, that the court erred (1) in not find-
ing it was entitled to immunity in this case; (2) in failing to
dismiss all allegations of negligence against it because Nord’s
intentional acts were the “but for” cause of the allegations; and
(3) in relying on third-party, instead of political subdivision
employee, intentional act cases.
On cross-appeal, Nord assigns, restated, that the court erred
in failing to find that he was entitled to immunity under
the PSTCA.
STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires an
appellate court to reach a conclusion independent of the deci-
sion made by the lower court.4
2
See § 13-910(7).
3
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
4
Tilson v. Tilson, ante p. 64, 907 N.W.2d 31 (2018).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
ANALYSIS
E.D. argues this court is without statutory authority to con-
sider this appeal because the court’s order was not final and the
collateral order doctrine does not apply in this case.
BPS concedes that the order it appealed from is not a final
order but argues that we have jurisdiction over its appeal
under the collateral order doctrine. It also asserts that E.D.
is precluded from raising the issue of jurisdiction before
this court because the Court of Appeals’ decision to grant its
motion for reconsideration and reinstate the appeal is the law
of the case.
This Court Is Not Precluded From
Considering Jurisdiction
[2,3] Before reaching the legal issues presented for review,
it is our duty to determine whether we have jurisdiction over
this appeal.5 Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.6
Further, the law-of-the-case doctrine, which precludes a
trial court from reconsidering issues decided by an appellate
court,7 in no way precludes the Nebraska Supreme Court from
reconsidering decisions by the Court of Appeals.8 Additionally,
the Court of Appeals’ reinstatement of the appeal was not a
determination of the jurisdictional issue but only a determi-
nation that there was not a clear lack of jurisdiction under
settled precedent.
There Is No Statutory Authority
for P resent A ppeal
[4] We have long held that appellate jurisdiction in
Nebraska is purely statutory and an appellate court acquires
5
Id.
6
Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).
7
See State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).
8
See Neb. Rev. Stat. § 25-204 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
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E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
no jurisdiction unless the appellant has satisfied the statutory
requirements for appellate jurisdiction.9
For an appellate court to acquire jurisdiction of an appeal,
the party must be appealing from a final order or a judgment.10
The Legislature has defined a “judgment” as “the final deter-
mination of the rights of the parties in an action.”11 Conversely,
every direction of a court or judge, made or entered in writing
and not included in a judgment, is an order.12
The three types of final orders that an appellate court may
review are (1) an order that affects a substantial right and
that determines the action and prevents a judgment, (2) an
order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right
made on summary application in an action after a judgment is
rendered.13 In contrast, if an order is interlocutory, immediate
appeal from the order is disallowed so that courts may avoid
piecemeal review, chaos in trial procedure, and a succession of
appeals granted in the same case to secure advisory opinions to
govern further actions of the trial court.14
The overruling of a motion to dismiss is typically not a
final order.15 BPS conceded that the court’s order overruling its
motion to dismiss was not a final order, and we agree.
In StoreVisions v. Omaha Tribe of Neb.,16 however, we held
that an appeal from an interlocutory order denying sovereign
9
See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). See,
also, Neb. Const. art. V, § 2.
10
Heckman, supra note 9. See, also, Neb. Rev. Stat. §§ 25-1911 and 25-1912
(Reissue 2016).
11
Neb. Rev. Stat. § 25-1301 (Reissue 2016).
12
Neb. Rev. Stat. § 25-914 (Reissue 2016).
13
Tilson, supra note 4. See, also, Neb. Rev. Stat. § 25-1902 (Reissue 2016).
14
Tilson, supra note 4.
15
State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017), citing StoreVisions
v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271 (2011), modified
on denial of rehearing 281 Neb. 978, 802 N.W.2d 420.
16
StoreVisions, supra note 15.
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Nebraska Supreme Court A dvance Sheets
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E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
immunity vested this court with jurisdiction, under the collat-
eral order doctrine. To fall within the doctrine, an order must
(1) conclusively determine the disputed question, (2) resolve
an important issue completely separate from the merits of the
action, and (3) be effectively unreviewable on appeal from a
final judgment.17
Our holding in StoreVisions was a continuation of several
decisions in which we applied the collateral order doctrine
to the appeals of nonfinal orders, the genesis of which was
our decision in Richardson v. Griffiths.18 In Richardson, we
addressed the applicability of the collateral order doctrine
and determined that a district court’s order disqualifying an
attorney was appealable despite the fact that it was not a final
order.19 We applied the three factors set forth above and con-
cluded that the collateral order doctrine authorized us to hear
the appeal.20
Recently, however, in Heckman v. Marchio,21 we over-
ruled our decision in Richardson and the cases relying upon
its application of the collateral order doctrine, which they
primarily referred to as the Richardson exception, “to the
extent that they authorized appellate jurisdiction in the absence
of a judgment or final order and without specific statutory
authorization.”22
[5,6] Heckman also concerned an appeal from a court’s
granting of a motion to disqualify counsel in a civil case.
In Heckman, we stated that our decision in Richardson had
been directly contrary to a U.S. Supreme Court decision
which specifically rejected the application of the collateral
17
Id.
18
Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997), overruled,
Heckman, supra note 9.
19
See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
20
Richardson, supra note 18.
21
Heckman, supra note 9, 296 Neb. at 467, 894 N.W.2d at 303.
22
See, e.g., Williams, supra note 19.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
order doctrine to orders disqualifying counsel in civil cases.23
However, we also disavowed Richardson based on the lack of
statutory authority for the decision. We stated:
We used [the Richardson exception] to provide for appel-
late jurisdiction where none would otherwise exist.
Through the enactment of statutes, the Legislature has
prescribed when a court may exercise appellate jurisdic-
tion; the judicial branch may not circumvent such statu-
tory authorization. Just as courts have no power to extend
the time set by the Legislature for taking an appeal, courts
have no power to allow an appeal when it is not autho-
rized by statute.24
While our holding in Heckman was limited to overruling
Richardson and our use of the Richardson exception, our rea-
soning therein is directly at odds with our continued applica-
tion of the collateral order doctrine to an interlocutory order
denying sovereign immunity.
In StoreVisions,25 the defendant appealed after the court
denied its motion to dismiss raising a defense of sovereign
immunity. On appeal, we determined that the order appealed
from was not final. Nevertheless, citing our opinions in Hallie
Mgmt. Co. v. Perry 26 and Williams v. Baird,27 we considered the
collateral order doctrine and concluded that an order denying
sovereign immunity was immediately reviewable, following
U.S. Supreme Court precedent.28
However, like in Richardson,29 we did not provide any
statutory authority for the application of the collateral order
23
See Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86
L. Ed. 2d 340 (1985).
24
Heckman, supra note 9, 296 Neb. at 464, 894 N.W.2d at 301.
25
StoreVisions, supra note 15.
26
Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
27
Williams, supra note 19.
28
See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,
506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993).
29
Richardson, supra note 18.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
doctrine to a denial of sovereign immunity in StoreVisions,
Hallie, or Williams. Hallie and Williams, instead, simply relied
on our adoption of the collateral order doctrine in Richardson
and cited the U.S. Supreme Court decision recognizing the
doctrine.30 While, unlike in Richardson, the U.S. Supreme
Court does apply the collateral order doctrine to the denial of
sovereign immunity, the broader reasoning of Heckman 31—that
this court cannot provide appellate jurisdiction circumventing
that expressly prescribed in Nebraska by the Legislature—con-
tinues to apply here.
[7] Similar to the court in Heckman, we find that our
application of the collateral order doctrine to permit appeals
from interlocutory orders denying sovereign immunity has no
basis in the statutory definition of “final order” in § 25-1902.
Section 25-1902 explicitly presents three orders that are con-
sidered “final” for the purposes of §§ 25-1911 and 25-1912.
The intent of the Legislature is expressed by omission as well
as by inclusion.32 Accordingly, our decision treating the doc-
trine as an exception to this statute or, effectively, as a fourth
type of final order amounted, instead, to impermissible judi-
cial legislation.
[8] While the issues of legislative acquiescence and
stare decisis are implicated in our current reconsideration
of StoreVisions33 to the same extent as in Heckman, such
issues were adequately resolved in Heckman and need not
be restated here, as that analysis applies with equal force
to this context. Therefore, we overrule StoreVisions to the
extent that it authorized appellate jurisdiction in the absence
of a judgment or final order and without specific statutory
authorization.
30
See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L.
Ed. 1528 (1949).
31
Heckman, supra note 9.
32
In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014).
33
StoreVisions, supra note 15.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
E.D. v. BELLEVUE PUB. SCH. DIST.
Cite as 299 Neb. 621
CONCLUSION
Because this appeal was from a nonfinal order and because
we overrule the application of the collateral order doctrine
to the extent that it authorizes an interlocutory appeal from
a denial of sovereign immunity, we dismiss the appeal and
cross-appeal.
A ppeal dismissed.
Wright, J., not participating.