Weatherly v. Cochran , 301 Neb. 426 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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301 Nebraska R eports
WEATHERLY v. COCHRAN
Cite as 301 Neb. 426Michelle Weatherly, appellee, v.
Luke J. Cochran, appellant.
___ N.W.2d ___
Filed October 26, 2018. No. S-17-1329.
1. Moot Question: Jurisdiction: Appeal and Error. Mootness does not
prevent appellate jurisdiction. But, because mootness is a justiciability
doctrine that operates to prevent courts from exercising jurisdiction, an
appellate court reviews mootness determinations under the same stan-
dard of review as other jurisdictional questions.
2. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
3. Jurisdiction. An actual case or controversy is necessary for the exercise
of judicial power.
4. Moot Question: Words and Phrases. A case becomes moot when
the issues initially presented in the litigation cease to exist, when the
litigants lack a legally cognizable interest in the outcome of litiga-
tion, or when the litigants seek to determine a question which does not
rest upon existing facts or rights, in which the issues presented are no
­longer alive.
5. Judgments: Time. Once a protection order has expired, the respondent
is no longer affected by it.
6. Moot Question: Appeal and Error. Under certain circumstances, an
appellate court may entertain the issues presented by a moot case when
the claims presented involve a matter of great public interest or when
other rights or liabilities may be affected by the case’s determination.
7. Moot Question: Words and Phrases. In determining whether the
public interest exception should be invoked, the court considers the
public or private nature of the question presented, the desirability of an
authoritative adjudication for future guidance of public officials, and the
likelihood of future recurrence of the same or a similar problem.
8. Statutes: Appeal and Error. Statutory language is to be given its
plain and ordinary meaning, and an appellate court will not resort to
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426interpretation to ascertain the meaning of statutory words that are plain,
direct, and unambiguous.
9. Statutes: Legislature: Intent. The court, in discerning the meaning of
a statute, should determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
10. Statutes: Words and Phrases. The meaning of “appear” in the context
of Neb. Rev. Stat. § 28-311.09(8)(b) (Reissue 2016) includes both per-
sonal appearances by the respondent and appearances through counsel.
Appeal from the District Court for Douglas County: John E.
Huber, County Judge. Appeal dismissed.
Diana J. Vogt, of Sherrets, Bruno & Vogt, L.L.C., for
appellant.
William H. Selde, of Fitzgerald, Schorr, Barmettler &
Brennan, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
Luke J. Cochran appeals the issuance of a harassment pro-
tection order and denial of a motion to vacate the ex parte
harassment protection order against him. During a show cause
hearing, the district court stated that because Cochran appeared
through counsel rather than appearing in person, the ex parte
harassment protection order would be automatically extended
for 1 year. However, the court proceeded to allow the peti-
tioner, Michelle Weatherly, to testify and allowed Cochran’s
counsel to cross-examine Weatherly. After the hearing, the
district court found that Weatherly had presented evidence suf-
ficient to extend the harassment protection order for 1 year, to
expire on October 5, 2018. The central issues raised on appeal
are (1) whether Weatherly was entitled to a harassment pro-
tection order under the terms of Neb. Rev. Stat. § 28-311.09- 428 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
WEATHERLY v. COCHRAN
Cite as 301 Neb. 426(Reissue 2016) and (2) whether a respondent against whom a
harassment protection order is sought must appear in person
rather than through counsel. We find that the appeal is moot,
but apply the public interest exception to mootness to address
the second inquiry.
FACTS
Weatherly and Cochran were involved as partners in a
roofing contractor business. Weatherly and Cochran worked
together in a building owned by Cochran and leased to the
business.
In July 2017, Cochran gave notice of his intent to resign
his position at the roofing contractor business. Believing that
Cochran would potentially depart negatively, Weatherly had an
off-duty officer present for the removal of his belongings on
his final day of employment.
When Cochran arrived at the office to remove his belong-
ings, he met with Weatherly in her office. During this meeting,
Cochran allegedly made threatening statements. Specifically,
Cochran purportedly stated, “‘Do you recall what happened to
. . . Roofing? It’s rumored that that was a business deal gone
bad and that person was murdered because of that. I hope
that doesn’t happen to us.’” Although Weatherly noted that
the environment was hostile throughout the rest of the day,
Weatherly continued to talk to Cochran.
Later, after Cochran left the building, the off-duty officer
suggested that Weatherly should go into Cochran’s office to
retrieve company documents and property before the lock-
smiths came to change the locks for the building. Upon enter-
ing Cochran’s office, Weatherly and the officer found a hand-
gun in Cochran’s desk drawer. Weatherly subsequently told the
off-duty officer that Cochran was a convicted felon, and the
officer took possession of the weapon to ensure that an on-duty
officer could seize it.
While Weatherly was waiting for the arrival of the on-duty
officer, Cochran returned and attempted to enter the building.
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426When Cochran was stopped from entering the building by
the off-duty officer, Weatherly alleged that Cochran made “a
threatening gesture” that she interpreted to insinuate that she
was “‘going to get it.’” The actual gesture was not further
described in the record.
On August 2, 2017, Weatherly filled out the application for
the protection order. However, the application was not filed
with the court until October 5. An ex parte harassment pro-
tection order was granted in favor of Weatherly, and a show
cause hearing was requested by Cochran and held December
7, 2017.
At the show cause hearing, Weatherly and her counsel were
in attendance, but Cochran appeared only through his attorney.
Weatherly’s testimony asserting and describing the aforemen-
tioned events was the only evidence received at the hearing.
Cochran’s counsel did not attempt to cross-examine Weatherly
regarding her recitation of the relevant events on Cochran’s
final day with the company, but did question her as to her
motivation for filing the protection order.
Cochran’s counsel contended that a demand letter sent
to Weatherly by Cochran’s attorney regarding a civil law-
suit between Weatherly and Cochran was a motivation for
Weatherly to file the protection order on October 5, 2017,
more than 2 months after the events at issue. The letter and
authenticating affidavit were marked as exhibit 1 and offered
by Cochran. The letter was objected to by Weatherly on rel-
evancy grounds. The district court sustained the objection and
did not further allow this line of cross-examination. The court
noted that Cochran’s counsel was not entitled to go over the
parties’ history and the potential relevance of the demand let-
ter because of Cochran’s failure to appear at the hearing. The
ex parte petition and affidavit were never offered at the show
cause hearing.
The court made multiple statements throughout the hear-
ing indicating that Cochran was required to appear in person
to challenge the issuance of the harassment protection order
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426and was not allowed to appear through counsel. But, at the
conclusion of the hearing, the district court ruled that, based
exclusively on Weatherly’s testimony of the events, the protec-
tion order would remain in effect for 1 year. Cochran appeals.
ASSIGNMENTS OF ERROR
Cochran assigns that the district court erred in (1) granting
the protection order on the evidence presented, (2) finding that
Cochran was required to appear in court in person rather than
through counsel to contest the issuance of the protection order,
and (3) refusing to admit exhibit 1 into evidence.
STANDARD OF REVIEW
[1] Mootness does not prevent appellate jurisdiction.1 But,
because mootness is a justiciability doctrine that operates to
prevent courts from exercising jurisdiction, we have reviewed
mootness determinations under the same standard of review as
other jurisdictional questions.2 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 decisions made by the lower courts.3
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.4
ANALYSIS
Cochran asserts on appeal that the district court erred in
finding that there was sufficient evidence to continue the
harassment protection order against him for 1 year. Weatherly
argues that the evidence was sufficient and that, in any event,
the harassment protection order was appropriately granted as
1
BryanLGH v. Nebraska Dept. of Health & Human Servs., 276 Neb. 596,
755 N.W.2d 807 (2008).
2
Id.3
In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008).
4
Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426a matter of law under § 28-311.09, because Cochran failed to
appear at the hearing in person. Cochran counters that “appear”
under Nebraska’s harassment protection order statutes permits
an appearance through counsel.
Mootness
[3] Before reaching the legal issues presented, the issue
we must first confront is whether this appeal has become
moot in the pendency of its litigation and appeal. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.5
An actual case or controversy is necessary for the exercise of
judicial power.6
[4] A case becomes moot when the issues initially presented
in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the
litigants seek to determine a question which does not rest
upon existing facts or rights, in which the issues presented are
no longer alive.7 Usually, in the absence of an actual case or
controversy requiring judicial resolution, it is not the function
of the courts to render a judgment that is merely advisory.8
Therefore, as a general rule, a moot case is subject to sum-
mary dismissal.9
[5] In the case on appeal, the harassment protection order
expired on October 5, 2018. At this point in time, no harass-
ment protection order exists against Cochran. We have held
in other protection order cases that once an order has expired,
the respondent is no longer affected by it.10 We have also
5
Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
6
In re Interest of Anaya, supra note 3.
7
BryanLGH v. Nebraska Dept. of Health & Human Servs., supra note 1.
8
Id.
9
Id.
10
Hron v. Donlan, 259 Neb. 259, 609 N.W.2d 379 (2000); Elstun v. Elstun,
257 Neb. 820, 600 N.W.2d 835 (1999).
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426previously noted that because of the 1-year timeframes for
protection orders, such cases will almost always be moot by
the time the appeal is heard.11 Similarly, this case is moot
because the parties no longer have a cognizable interest in the
outcome of the determination of whether the court erred in
extending the harassment protection order under the terms of
§ 28-311.09.
[6,7] Nonetheless, under certain circumstances, an appellate
court may entertain the issues presented by a moot case when
the claims presented involve a matter of great public interest
or when other rights or liabilities may be affected by the case’s
determination.12 In determining whether the public interest
exception should be invoked, the court considers the public or
private nature of the question presented, the desirability of an
authoritative adjudication for future guidance of public offi-
cials, and the likelihood of future recurrence of the same or a
similar problem.13
Although the appeal is moot, we choose to address the issue
of whether a respondent against whom an ex parte harassment
protection order has been issued must appear in person at a
show cause hearing to challenge the issuance of the order, or
can instead waive his or her appearance in person and appear
through counsel at such hearing. Authoritative guidance on the
matter is desirable because it is likely to reoccur in the future.
This question is also public in nature, as it is not specific
to the parties of this case. Rather, the interpretation of this
issue may affect any respondent in a harassment protection
order hearing.
In an effort to provide direction to the public, we address
the “appearance” issue on appeal. Interpreting the mean-
ing of “appear” under § 28-311.09 demands an authoritative
11
Id.
12
Hauser v. Hauser, 259 Neb. 653, 611 N.W.2d 840 (2000); Elstun v. Elstun,
supra note 10.
13
Id.- 433 -
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426a­ djudication for future guidance of public officials.14 However,
we do not find it necessary under the public interest exception
to address whether the evidence presented at the show cause
hearing was sufficient to warrant the 1-year extension of the
harassment protection order, which has since expired.15
Meaning of “A ppear”
Under § 28-311.09
[8,9] Whether a respondent at the show cause hearing for
the continuation of a harassment protection order is required
to appear in person as opposed to appearing solely through
counsel hinges on the statutory interpretation of the language
in § 28-311.09.16 Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words that
are plain, direct, and unambiguous.17 The court, in discerning
the meaning of a statute, should determine and give effect to
the purpose and intent of the Legislature as ascertained from
the entire language of the statute considered in its plain, ordi-
nary, and popular sense.18
In 2012, § 28-311.09(8)(b) was amended to include the fol-
lowing language: “If the respondent has been properly served
with the ex parte order and fails to appear at the hearing, the
temporary order shall be deemed to be granted and remain in
effect . . . .” On its face, § 28-311.09(8) provides that a court
is required to grant a temporary order when a respondent was
properly served with the ex parte order and fails to appear
at the show cause hearing. It was plainly meant to address
14
See Hron v. Donlan, supra note 10.
15
See Courtney v. Jimenez, 25 Neb. App. 75, 903 N.W.2d 41 (2017) (holding
that moot issue of sufficiency of evidence to support domestic abuse
protection order does not fall under public interest exception).
16
See § 28-311.09.
17
Dean v. State, supra note 4.
18
Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017).
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426the situation where a respondent fails to “appear” at a show
cause hearing.
But the parties dispute the meaning of the word “appear.”
Cochran argues that by failing to specifically require
in § 28-311.09(7) that a respondent appear in person, the
Legislature plainly indicated that a respondent may appear
solely through counsel to challenge the protection order. This
is because, Cochran asserts, the plain meaning of “appear” in
the context of a court hearing includes appearance through
counsel. Cochran bolsters this argument by citing case law in
which we have held in other civil proceedings that defendants
were entitled to appear through counsel as opposed to attend-
ing in person.19
Conversely, Weatherly contends that to “appear” is limited
to appearing in person. Weatherly’s sole authority for this
assertion is an unpublished Nebraska Court of Appeals case,
Kahm v. Wiester.20 In Kahm, the Court of Appeals held that
as long as the respondent was served with the ex parte order,
and he further failed to appear at the show cause hearing, the
temporary order would be deemed to be granted and remain
in effect.21 Kahm, however, is distinguishable from the present
matter, because the appellant in Kahm failed to appear in per-
son or through counsel.22
The Legislature has not provided a controlling definition
of the term “appear,” but we look to the plain and ordinary
meaning of the word within the context of this statute.23 We
19
See Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767(2013) (allowing defendant to appear through counsel to contest default
judgment). See, also, Rorick Partnership v. Haug, 228 Neb. 364, 422
N.W.2d 365 (1988).
20
Kahm v. Wiester, No. A-12-1157, 2013 WL 4713590 (Neb. App. Sept. 3,
2013) (selected for posting to court website).
21
Id.22
See id.23
See Farmers Co-op v. State, supra note 18.
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426must look to the statutory language and apply its ordinary and
grammatical construction, unless an intent appears to the con-
trary or unless, by following such construction, the intended
effect of the provisions would apparently be impaired.24
We find no merit to Weatherly’s contention that to “appear”
in the context of § 28-311.09(7) means solely to appear in per-
son and does not include appearance through counsel. Under
Black’s Law Dictionary, “appearance” is defined to mean
“[a] coming into court as a party or an interested person, or
as a lawyer on behalf of a party or interested person . . . .”25
Further, American Jurisprudence defines in detail what consti-
tutes an “appearance” in a legal context:
An “appearance” is a coming into court as party to a suit,
either in person or by attorney, whether as plaintiff or
defendant. An “appearance” in an action involves some
submission or presentation to the court by which a party
shows his intention to submit himself to the jurisdiction
of the court; the determining factor is whether he takes a
part in the particular action which in some manner recog-
nizes the authority of the court to proceed.26
The American Jurisprudence definition of “appearance” explic-
itly states that an appearance may occur either in person or by
an attorney.
“Appear” as it is found in § 28-311.09(8)(b) is not narrowly
confined to require the presence of a respondent in person.
Rather, it is the same as any other “appearance” in court.
Through a plain reading of this statute, we hold that a respond­
ent is entitled to appear by and through his or her counsel.
The determining factor is whether the respondent takes a part
in the particular action in some manner that recognizes the
authority of the court to proceed.
24
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
25
Black’s Law Dictionary 118 (10th ed. 2014) (emphasis supplied).
26
4 Am. Jur. 2d Appearance § 1 at 630 (2018).
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WEATHERLY v. COCHRAN
Cite as 301 Neb. 426CONCLUSION
[10] We conclude that the meaning of “appear” in the con-
text of § 28-311.09(8)(b) includes both personal appearances
by the respondent and appearances through counsel. For the
reasons set forth above, however, the instant appeal is moot.
Therefore, we dismiss the present appeal.
A ppeal dismissed.