Courtney v. Jimenez ( 2017 )

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COURTNEY v. JIMENEZ
Cite as 25 Neb. Ct. App. 75
A lexandra Courtney, appellant,
v. R ene Jimenez , appellee.
___ N.W.2d ___
Filed September 26, 2017. No. A-16-868.
1. Judgments: Injunction: Appeal and Error. A protection order is anal-
ogous to an injunction. Accordingly, the grant or denial of a protection
order is reviewed de novo on the record.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court resolves independently of the
trial court.
3. Moot Question: Jurisdiction: Appeal and Error. Because mootness is
a justiciability doctrine that operates to prevent courts from exercising
jurisdiction, an appellate court reviews mootness determinations under
the same standard of review as other jurisdictional questions.
4. Judgments: 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 indepen-
dent of the decisions made by the lower courts.
5. Moot Question: Words and Phrases. A case becomes moot when the
issues initially presented in litigation cease to exist or the litigants lack
a legally cognizable interest in the outcome of litigation.
6. Moot Question. As a general rule, a moot case is subject to sum-
mary dismissal.
7. 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.
8. ____: ____. When determining whether a case involves a matter of pub-
lic interest, an appellate court considers (1) the public or private nature
of the question presented, (2) the desirability of an authoritative adjudi-
cation for future guidance of public officials, and (3) the likelihood of
future recurrence of the same or a similar problem.
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9. Motions to Vacate: Time. A court has inherent power to vacate or
modify its own judgments at any time during the term at which those
judgments are pronounced, and such power exists entirely independent
of any statute.
10. Judgments: Statutes: Time. The 5-day period set forth in Neb. Rev.
Stat. § 42-925(1) (Reissue 2016) is not central to the purpose of the
domestic abuse protection order statutes; once the ex parte protection
order has been granted, the fundamental purpose of the statute has
been satisfied.
11. Pleadings: Time. The 5-day period to file a show cause hearing request
as set forth in Neb. Rev. Stat. § 42-925(1) (Reissue 2016) is directory
and not mandatory. Accordingly, failing to file a request for a show
cause hearing within that 5-day period does not preclude the later filing
of a motion to bring the matter back before the court, including the fil-
ing of a motion to vacate an ex parte order.
Appeal from the District Court for Douglas County: Leigh
A nn R etelsdorf, Judge. Affirmed.
Jeff T. Courtney, P.C., L.L.O., for appellant.
Hugh I. Abrahamson, of Abrahamson Law Office, for
appellee.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Bishop, Judge.
INTRODUCTION
An ex parte domestic abuse protection order was entered
by the Douglas County District Court in favor of Alexandra
Courtney and against Rene Jimenez. Jimenez did not request
a hearing to challenge the ex parte order within 5 days as set
forth in Neb. Rev. Stat. § 42-925(1) (Reissue 2016); how-
ever, Jimenez subsequently filed a motion to vacate the order.
Courtney appeals from the district court’s order vacating the ex
parte order. We affirm.
BACKGROUND
Courtney filed a petition and affidavit for an ex parte
domestic abuse protection order on May 6, 2016. The petition
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indicates that Courtney and Jimenez have a 3-year-old child
together, that a “Paternity/Custody” case was pending between
them, and that another protection order against Jimenez (in
favor of Courtney) was set to expire on May 8. Where the form
requested the facts of the most recent incidents of domestic
abuse, Courtney described the following incidents: First, she
alleged that on April 29, 2016, Jimenez sent her a text message
“about our daughter and death,” which she took as a death
threat to her (Courtney). In a second incident, on October 16,
2015, Jimenez told a mediator that “the protection order would
be over soon [and] ‘he’ll be able to handle this himself.’”
Courtney said that “[t]his made me very afraid because of the
way I know that he handles things.” Courtney next listed as an
incident of domestic abuse, “See previous affidavit submitted
on 5/7/2015.” Finally, Courtney alleged that on May 6, 2016,
after she spoke to the county attorney about Jimenez’ April
29 text message, she was informed that the text message had
become part of a “‘warrant case’”; she thought this would “fur-
ther provoke” Jimenez.
The district court entered an ex parte domestic abuse protec-
tion order against Jimenez on May 6, 2016. The order stated:
If the respondent wishes to appear and show cause
why this order should not remain in effect for a period of
one year, he or she shall affix his or her current address,
telephone number, and signature on the Request for
Hearing form provided and return it to the clerk of the
district court within five (5) days after service upon him
or her.
(Emphasis in original.)
Jimenez was served on May 17, 2016, but did not return
the “Request for Hearing” form within 5 days thereafter.
Instead, Jimenez filed a “Motion to Dismiss Protection Order”
on August 1. He requested that the district court vacate the
protection order because “reading [Courtney’s] Petition and
Affidavit to Obtain Domestic Abuse Protection Order in the
most favorable light to [her], it is readily apparent that [she]
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has failed to allege the facts necessary” for the court to issue
a protection order. While the document was titled “Motion to
Dismiss Protection Order,” we will refer to it as a motion to
vacate because it asked the court to vacate the protection order
and because the district court’s later order referred to it as a
motion to vacate.
The district court held a hearing on Jimenez’ motion to
vacate on August 9, 2016. At the hearing, Jimenez’ counsel
argued that the allegations in Courtney’s petition and affidavit
did not meet the statutory criteria for a domestic abuse protec-
tion order because the text message was not threatening and
Jimenez was only seeking suggestions on how to explain a
family death to their daughter. Jimenez’ counsel stated:
The only reason I can think that there would be a protec-
tion order here is to try and provoke my client, and that’s
not the use of a protection order. My client has done noth-
ing that would warrant the issuance of a protection order,
and I’d ask that you set it aside.
Courtney’s counsel responded:
The problem, Judge, is that there is probably more of
a record that would have been created in support of the
protection order, at least through the testimony of my
client and any of her witnesses, but there was no hear-
ing and nothing was placed on the record because . . .
Jimenez did not ask for a hearing.
Courtney’s counsel further argued that Courtney’s fears were
justified because of her past experiences with Jimenez, and her
counsel asked that a hearing be held on the merits of the peti-
tion and affidavit, wherein Courtney could “fill in the gaps”
with her testimony.
The district court said that it understood both parties’ posi-
tions, but determined that Courtney’s petition and affidavit
failed to allege enough facts to support the protection order.
The court acknowledged the possibility of other evidence
but told the parties that “in a hearing on a protection order,
the Court is confined to what’s alleged in the Petition.”
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Although the court decided the protection order should be
vacated, it informed Courtney she could refile for an order,
and the court further directed that an order would be entered
in the pending paternity case that Jimenez was to have “abso-
lutely no contact” with Courtney whatsoever. Courtney filed a
timely appeal.
ASSIGNMENTS OF ERROR
Courtney assigns, restated, that the district court erred when
it vacated the domestic abuse protection order against Jimenez
because (1) Jimenez’ motion to vacate was untimely and was
not a proper pleading under the domestic abuse protection
order statutes and (2) Courtney alleged facts sufficient to sup-
port the issuance of the protection order.
STANDARD OF REVIEW
[1] A protection order is analogous to an injunction.
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
Accordingly, the grant or denial of a protection order is
reviewed de novo on the record. Id.
[2] Statutory interpretation presents a question of law, which
an appellate court resolves independently of the trial court.
Glantz v. Daniel, 21 Neb. Ct. App. 89, 837 N.W.2d 563 (2013).
[3,4] 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 standard of
review as other jurisdictional questions. Id. When a jurisdic-
tional question does not involve a factual dispute, its determi-
nation is a matter of law, which requires an appellate court to
reach a conclusion independent of the decisions made by the
lower courts. Id.
ANALYSIS
Mootness.
Before reaching the legal issues presented for review, an
appellate court must determine whether it has jurisdiction.
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In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259
(2011). While it is not a constitutional prerequisite for jurisdic-
tion, the existence of an actual case or controversy is necessary
for the exercise of judicial power. Hron v. Donlan, 259 Neb.
259, 609 N.W.2d 379 (2000). In the absence of an actual case
or controversy requiring judicial resolution, it is not the func-
tion of the courts to render a judgment that is merely advisory.
Glantz v. Daniel, supra. Therefore, we first consider whether
this appeal is moot, since the protection order in this case
would have already expired had it not been vacated.
[5,6] A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a legally
cognizable interest in the outcome of litigation. See id. As a
general rule, a moot case is subject to summary dismissal. Id.
The district court entered a temporary ex parte protection
order on May 6, 2016. Jimenez was served with the order
on May 17. Jimenez did not request a show cause hearing
within 5 days of service, so the temporary order became a
final ex parte protection order, valid until May 6, 2017. See
§ 42-925(1). The district court vacated the protection order on
August 9, 2016, after a hearing on Jimenez’ motion to vacate.
Courtney filed a notice of appeal on September 8; however,
she did not send a copy of the praecipe for bill of exceptions
to the court reporter as required by appellate court rules. This
resulted in a delay in the preparation of the appellate record,
which was followed by multiple extensions of brief dates filed
by Courtney. These delays have contributed to this appeal
coming before this court after what would have been the expi-
ration date of the protection order, had it not been vacated.
Since this court cannot reinstate an expired protection order,
this appeal is moot.
[7,8] However, 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. Glantz v. Daniel, supra. When determining
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whether a case involves a matter of public interest, an appel-
late court considers (1) the public or private nature of the
question presented, (2) the desirability of an authoritative
adjudication for future guidance of public officials, and (3)
the likelihood of future recurrence of the same or a similar
problem. Id.
This case is similar to Glantz v. Daniel, 21 Neb. Ct. App. 89,
837 N.W.2d 563 (2013), where we applied the public interest
exception to a moot case concerning an ex parte harassment
protection order. Individuals subject to an ex parte harass-
ment protection order have 5 days from the date of service
to request a hearing to show cause why the order should not
remain in effect for 1 year. See Neb. Rev. Stat. § 28-311.09(7)
(Reissue 2016). In Glantz, a hearing was requested more than
5 days after service of the ex parte order, but the district court
nevertheless allowed the hearing and dismissed the ex parte
harassment protection order. On appeal, it was argued that the
district court erred by allowing the show cause hearing when it
had not been requested within the 5 days specified by statute.
Courtney makes a similar argument in the present appeal, but
in the context of the domestic abuse protection order statutes
rather than the harassment protection order statutes at issue
in Glantz.
However, as in this case, the harassment protection order in
Glantz had expired when the case came before this court on
appeal, rendering the appeal moot. In Glantz, we noted that
the case involved the interpretation of a statute and that there
was no previous interpretation of the time limitation contained
in § 28-311.09(7); thus, the case raised a public question and
our decision on the issue would provide valuable guidance to
lower courts. Further, because of the multitude of harassment
protection order cases filed in Nebraska, this court concluded
that the same question would likely arise in the future. Id.
Therefore, we found that the public interest exception to the
mootness doctrine applied and we addressed the merits of
the case.
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While we are mindful that the public interest exception
should not be used so often that it circumvents the mootness
doctrine, this case presents a sufficiently important issue to
merit consideration. See Yancer v. Kaufman, 22 Neb. Ct. App.
320, 854 N.W.2d 640 (2014). Like Glantz v. Daniel, supra,
this case raises a statutory question more public in nature
than private, an authoritative adjudication for future guidance
is desirable, and there is a likelihood of future recurrence of
the same or a similar problem. Similar to Glantz, there is no
previous interpretation of how the 5-day time requirement
specified in § 42-925(1) for requesting a show cause hearing
to challenge an ex parte domestic abuse protection order may
impact a later request for hearing. Additionally, in this case,
we are asked to consider whether a party’s failure to request a
hearing in accordance with § 42-925(1) should prevent a dis-
trict court from exercising its inherent power to vacate a prior
order. Accordingly, we conclude the public interest exception
to the mootness doctrine applies, at least in part, to the pres-
ent appeal.
District Court’s Inherent
Power to Vacate.
Courtney argues that the district court should not have con-
sidered Jimenez’ motion to vacate because he did not timely
file his request to contest the protection order. She argues that
the 5-day deadline in § 42-925(1) is “a ‘hard and fast’ dead-
line” and that “[t]he five day period is similar to a statute of
limitations, or the 30 day period in which a notice of appeal
must be filed following entry of a final order of a trial court.”
Brief for appellant at 7. Courtney categorizes the motion to
vacate as “a time barred, inappropriate collateral attack on
a valid order issued by the court. Not only was the five day
period not adhered to, the 30 days in which Jimenez could
have appealed the entry of the order expired 38 days before the
motion to dismiss was filed.” Id.
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[9] We initially draw a distinction between Jimenez miss-
ing the statutory 5-day period for requesting a show cause
hearing as described in § 42-925(1) and his filing a motion to
vacate the protection order. With regard to a motion to vacate,
a court has inherent power to vacate or modify its own judg-
ments at any time during the term at which those judgments
are pronounced, and such power exists entirely independent
of any statute. Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d
585 (2014). The local rules of the district court for the Fourth
Judicial District, applicable here, provide that the term of the
court runs from January 1 to December 31 of the calendar
year. See Rules of Dist. Ct. of Fourth Jud. Dist. 4-1 (rev.
1995). The ex parte order was filed on May 6, 2016, and
Jimenez filed his motion to vacate on August 1. Accordingly,
Jimenez filed his motion to vacate within the court’s term,
and the court had the inherent power to vacate or modify its
prior order.
In considering the motion to vacate, the district court deter-
mined that Courtney’s petition and affidavit failed to allege
enough facts to support the protection order, stating, “The
problem that this court has is I don’t believe there’s enough
— when I read the Petition and the affidavit, I don’t think
there’s enough in the Petition itself for a protection order.”
The court acknowledged the possibility of other evidence but
told the parties that “in a hearing on a protection order, the
Court is confined to what’s alleged in the Petition.” The court
said the protection order should be vacated, but “[s]hould
you [Courtney] want an order . . . and you feel the need for
an order, you would have to put those things in the Petition
itself so that we could have a hearing and address them.”
The discussion between the court and counsel indicates that
the paternity matter was scheduled for trial “this coming
Monday,” “[t]he 15th.” The court noted that a different dis-
trict court judge entered the protection order and that it “is
always problematic when more than one judge is involved in
the proceedings.” The court vacated “this protection order at
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this point in time,” but stated that an order was to be entered
in the paternity case that Jimenez was “to have absolutely no
contact” with Courtney whatsoever.
Courtney argues, however, that “[a]ny argument from
Jimenez that the trial court’s equity powers allow it to vacate
the ex-parte order and dismiss the petition and affidavit” is
without merit. Brief for appellant at 8 (emphasis in original).
The totality of Courtney’s argument in support of this asser-
tion is limited to her reference to Neb. Rev. Stat. § 42-924(5)
(Reissue 2016), which states, “If there is any conflict between
sections 42-924 to 42-926 and any other provision of law,
sections 42-924 to 42-926 shall govern.” Courtney does not
explain how the district court’s inherent power to vacate orders
within its court term conflicts with these statutory sections.
Our review of the listed statutes reveals no apparent conflicts,
and in light of Courtney’s failure to provide any discussion
of the same, we decline to consider this assertion further. See
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015) (court
declined to address appellant’s conclusory arguments which
had no supporting explanation).
Finding no conflict between § 42-924(5) and the district
court’s inherent power to vacate a prior order entered within
its court term, we find no error in the district court’s order
dismissing Courtney’s petition and vacating the ex parte pro-
tection order.
Failure to Follow Deadline
in § 42-925(1).
Courtney argues that § 42-925(1) sets forth “a ‘hard and
fast’ deadline” for “action on the part of Jimenez.” Brief for
appellant at 7. Courtney claims the 5-day period is similar to
a statute of limitations, and she suggests that failing to request
a hearing within those 5 days should preclude any subse-
quent action on a final protection order, including the filing
of the motion to vacate. We do not read the statute to create
such limitations.
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As noted previously, this court has addressed a similar
5-day statutory requirement with regard to harassment protec-
tion orders. In Glantz v. Daniel, 21 Neb. Ct. App. 89, 837 N.W.2d
563 (2013), a request for hearing on an ex parte harassment
protection order was challenged as being untimely, since it
was filed outside the 5-day deadline in § 28-311.09(7). This
court concluded that the 5-day period to request a hearing was
directory rather than mandatory. We determined that the dead-
line for requesting a hearing regarding a harassment protection
order did not affect the underlying goal of the harassment
statutes, e.g., protecting victims of stalking or harassment.
The immediate protections afforded to stalking or harassment
victims was accomplished by allowing the courts to enter an
ex parte order upon the filing of a petition. We found no error
in the district court’s decision to proceed to hearing, nor in its
decision to then dismiss the protection order petition and ex
parte order.
In considering principles of statutory construction, our
Supreme Court has stated:
The general rule is that the word “shall” in a statute
is mandatory and inconsistent with the idea of discre-
tion. But we construe the word “shall” as permissive if
the spirit and purpose of the legislation requires such
a construction. No universal test distinguishes manda-
tory from directory provisions. Broadly, provisions that
relate to the essence of the thing to be done are manda-
tory while provisions for which compliance is a matter
of convenience rather than substance are directory. Put
another way, we have been reluctant to deem provi-
sions mandatory if something less than strict compli-
ance would not interfere with the statute’s fundamen-
tal purpose.
We have frequently applied these principles to statutory
time limits. In most cases, we have decided that provi-
sions specifying the time by which something “shall” be
done are merely directory. But we have given “shall” a
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mandatory construction if completion of the action within
the specified period was essential to accomplishing a
principal purpose of the law.
D.I. v. Gibson, 291 Neb. 554, 557-58, 867 N.W.2d 284, 287
(2015) (emphasis supplied). The footnote to the italicized lan-
guage above identifies a number of supporting cases where
statutory time limits were determined to be directory rather
than mandatory, including Glantz v. Daniel, supra.
In the present matter, the Protection from Domestic Abuse
Act, Neb. Rev. Stat. § 42-901 et seq. (Reissue 2016), pro-
vides that a victim of domestic abuse may file a petition and
affidavit for a protection order with the clerk of the district
court. § 42-924. Section 42-925 provides that domestic abuse
protection orders, as defined under § 42-924, may be issued
ex parte. If a court issues a domestic abuse protection order
ex parte:
[S]uch order is a temporary order and the court shall
forthwith cause notice of the petition and order to be
given to the respondent. The court shall also cause a
form to request a show-cause hearing to be served upon
the respondent. If the respondent wishes to appear and
show cause why the order should not remain in effect, he
or she shall affix his or her current address, telephone
number, and signature to the form and return it to the
clerk of the district court within five days after service
upon him or her. Upon receipt of the request for a show-
cause hearing, the request of the petitioner, or upon the
court’s own motion, the court shall immediately schedule
a show-cause hearing . . . . If the respondent does not so
appear [at the hearing] and show cause, the temporary
order shall be affirmed and shall be deemed the final pro-
tection order. If the respondent has been properly served
with the ex parte order and fails to appear at the hearing,
the temporary order shall be affirmed and the service of
the ex parte order shall be notice of the final protection
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order for purposes of prosecution under subsection (4) of
section 42-924.
§ 42-925(1) (emphasis supplied).
The fundamental purpose of the Protection from Domestic
Abuse Act is “to provide abused family and household mem-
bers necessary services including shelter, counseling, social
services, and limited medical care and legal assistance.” See
§ 42-902. As with harassment protection orders, immediate
protection is afforded under the domestic abuse protection
order statutes by allowing courts to enter an ex parte order
upon the filing of a petition and affidavit. Upon entry of such
an ex parte order, the respondent is immediately enjoined from
engaging in any of the actions set forth in § 42-924, as may be
ordered by the court.
[10,11] We see no reason why the 5-day period for domes-
tic abuse protection orders set forth in § 42-925(1) should
be treated any differently than the 5-day rule for harassment
protection orders set forth in § 28-311.09(7), see Glantz v.
Daniel, 21 Neb. Ct. App. 89, 837 N.W.2d 563 (2013), or the 7-day
rule for emergency protective custody hearings as addressed
in D.I. v. Gibson, 291 Neb. 554, 867 N.W.2d 284 (2015). As
stated by our Supreme Court, “We have noted our reluctance
to find statutory time limits mandatory if they are not central
to the purpose of the statute.” Id. at 561, 867 N.W.2d at 289.
The 5-day period set forth in § 42-925(1) is not central to
the purpose of the domestic abuse protection order statutes.
Although prompt responses to ex parte domestic abuse protec-
tion orders no doubt encourage orderly and rapid resolution of
challenges to such orders, once the ex parte protection order
has been granted, the fundamental purpose of the statute has
been satisfied. We conclude the 5-day period to file a show
cause hearing request as set forth in § 42-925(1) is directory
and not mandatory. Accordingly, failing to file a request for a
show cause hearing within that 5-day period does not preclude
the later filing of a motion to bring the matter back before the
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court, including the filing of a motion to vacate an ex parte
order as was filed in this case.
Sufficiency of Evidence.
Courtney argues that she alleged facts sufficient to sup-
port the issuance of the protection order and that therefore,
it should not have been vacated. We need not address this
argument because even if we were to determine that Courtney
alleged sufficient facts to support the issuance of an ex parte
protection order, we cannot provide her with a remedy because
the underlying protection order would have expired on May
6, 2017. Unlike interpreting § 42-925(1), whether Courtney
alleged sufficient facts for an ex parte protection order is of a
private nature, it does not demand an authoritative adjudica-
tion for future guidance of public officials, and because of
the unique facts of her case, the same or a similar problem
is not likely to recur. See Hron v. Donlan, 259 Neb. 259,
609 N.W.2d 379 (2000). We find no exception to the moot-
ness doctrine under which we can address sufficiency of the
evidence. See Doty v. West Gate Bank, 292 Neb. 787, 874
N.W.2d 839 (2016) (appellate court is not obligated to engage
in analysis that is not necessary to adjudicate case and contro-
versy before it).
CONCLUSION
The district court’s order dismissing Courtney’s petition
and vacating the ex parte domestic abuse protection order
is affirmed.
A ffirmed.