E.D. v. Bellevue Pub. Sch. Dist. , 299 Neb. 621 ( 2018 )


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  • Nebraska Supreme Court Online Library
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    04/20/2018 01:08 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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    E.D. v. BELLEVUE PUB. SCH. DIST.
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    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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    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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    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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    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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    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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    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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    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.