State v. Pollock ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/08/2024 09:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. POLLOCK
Cite as 33 Neb. App. 236State of Nebraska, appellee, v.
Jacob W. Pollock, appellant.
___ N.W.3d ___
Filed October 8, 2024. No. A-23-922.
1. Courts: Time: Appeal and Error. A district court’s ruling on a motion
to extend the time for filing a brief is reviewed for an abuse of
discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Courts: Rules of the Supreme Court: Appeal and Error. The appli-
cable rules for appealing a county court’s decision to the district court
are found within Neb. Ct. R. §§ 6-1452 and 6-1518 (rev. 2022) and Neb.
Rev. Stat. § 25-2728 et seq. (Reissue 2016 & Cum. Supp. 2022).
4. ____: ____: ____. The briefing rules set forth in the Nebraska Court
Rules of Appellate Practice do not govern appeals to the district court
when sitting as an intermediate court of appeals. Instead, the Uniform
District Court Rules of Practice and Procedure govern the briefing rules
when a district court sits as an intermediate court of appeals.
5. Statutes: Time. It is a general proposition that new procedural statutes
have no retroactive effect upon any steps that may have been taken in
an action before such statutes were effective. All things performed and
completed under the old law must stand.
6. Rules of the Supreme Court: Appeal and Error. Where an appellant
fails to comply with Neb. Ct. R. § 6-1518(B) (rev. 2022), appellate
review is limited to plain error.
7. Courts: Rules of the Supreme Court. Neb. Ct. R. § 6-1519 of the
Uniform District Court Rules of Practice and Procedure allows the
district courts, upon a showing of good cause, to suspend a rule in a
particular instance to avoid a manifest injustice.
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. POLLOCK
Cite as 33 Neb. App. 2368. Courts: Time. The district courts’ inherent authority to do all things
reasonably necessary for the proper administration of justice provides
them the right to regulate briefing schedules.
Appeal from the District Court for Jefferson County, David
J. A. Bargen, Judge, on appeal thereto from the County Court
for Jefferson County, Linda A. Bauer, Judge. Judgment of
District Court affirmed.
Dustin A. Garrison, of Garrison Law Firm, for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Pirtle, Chief Judge, and Arterburn and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
After requesting and receiving three extensions to file his
initial appellate brief, Jacob W. Pollock failed to submit his
brief by the imposed deadline, and the district court for
Jefferson County dismissed his appeal. He now appeals, alleg-
ing that he did not have sufficient notice that failure to submit
his brief by the deadline would result in the dismissal of his
appeal. For the reasons that follow, we affirm.
BACKGROUND
On March 10, 2023, after a stipulated bench trial, Pollock
was convicted in county court on one count of driving under
the influence, first offense. On April 26, he was sentenced to
7 days in jail, was fined $500, and had his license revoked for
6 months.
On May 4, 2023, Pollock filed his notice of appeal to the
district court. On July 20, the district court issued a briefing
schedule stating that Pollock’s brief was due within 30 days
and that the State’s brief was due 30 days after that submission.
In this order, the court stated:
Failure of [Pollock] to timely file a brief in accordance
with this Order without leave of Court for an extension
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Nebraska Court of Appeals Advance Sheets
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STATE V. POLLOCK
Cite as 33 Neb. App. 236of time subjects the appeal to dismissal. Failure of the
[State] to timely file a brief in accordance with this Order
without leave of Court for an extension of time may per-
mit [Pollock] to proceed ex parte.
A hearing in this matter will be held only upon further
order of the Court, otherwise the case will be deemed
submitted and under advisement upon the deadline for fil-
ing of a reply brief.
Following this order, Pollock’s brief was due on August 21.
On August 18, 2023, Pollock filed a motion to continue and
requested additional time to submit his brief. The court granted
this motion the same day and gave Pollock 14 more days to
file his brief. On September 5, the new due date, Pollock sub-
mitted another motion to continue requesting additional time
to submit his brief. The court granted this motion and gave
Pollock another 14 days. On September 14, Pollock filed his
third motion to continue. On September 15, the court granted
his motion and stated:
The Court, being fully advised in the premises, finds that
said motion should be and hereby is granted, but only to
allow an additional two weeks. This is the last extension
the Court will grant [Pollock] for submission of his brief.
It is due on or before October 2, 2023. Thereafter, the
briefing schedule will proceed with or without [Pollock’s]
initial brief.
On October 2, 2023, Pollock filed another motion to con-
tinue, seeking an additional 7 days to file his brief. In this
motion, he stated the “individual hired to prepare the brief . . .
is still going through the material and it is taking longer than
she anticipated.” The court did not rule on this motion until
after the October 2 deadline had passed. And Pollock did not
file his brief until October 11.
On October 17, 2023, the court issued an order denying
Pollock’s fourth motion to continue and declared that his fail-
ure to submit a brief by October 2 resulted in the dismissal of
his appeal. Pollock now appeals.
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Nebraska Court of Appeals Advance Sheets
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STATE V. POLLOCK
Cite as 33 Neb. App. 236ASSIGNMENT OF ERROR
Pollock assigns the district court erred by dismissing his
appeal because of an untimely filed brief.
STANDARD OF REVIEW
[1,2] A district court’s ruling on a motion to extend the
time for filing a brief is reviewed for an abuse of discretion.
See Twin Pines v. Rice, 32 Neb. App. 782, 6 N.W.3d 226
(2024) (reviewing motion to extend time for filing statement
of errors for abuse of discretion). See, also, Schultz v. State,
32 Neb. App. 59, 992 N.W.2d 779 (2023) (reviewing dismissal
of action for lack of prosecution for abuse of discretion). An
abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302,
984 N.W.2d 596 (2023).
ANALYSIS
Pollock asserts the district court abused its discretion in
dismissing his appeal because it did not provide sufficient
notice that his appeal would be dismissed if he bypassed the
briefing deadline. In this argument, he relies on Neb. Ct. R.
App. P. § 2-110(A) (rev. 2022), which states in relevant part:
“If appellant has sought and obtained an extension of brief
date and the court’s order granting the extension subjects the
appeal to dismissal without further notice, failure to file the
brief within the extended time allowed may result in dismissal
of the appeal without further notice.” Pollock contends the
court’s order granting his third motion to continue did not
specify the appeal was subject to dismissal without further
notice if he failed to abide by the briefing deadline.
[3] We determine that Pollock’s argument is misplaced.
While Pollock relies on the requirements provided within
§ 2-110 for when a party fails to file a brief, the Nebraska
Supreme Court has never found that this appellate briefing
rule applied to appeals from the county court to the district
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STATE V. POLLOCK
Cite as 33 Neb. App. 236court. Instead, the applicable rules for appealing a county
court’s decision to the district court are found within Neb.
Ct. R. §§ 6-1452 and 6-1518 (rev. 2022) and Neb. Rev. Stat.
§ 25-2728 et seq. (Reissue 2016 & Cum. Supp. 2022). But
none of these rules dictate a briefing schedule the district court
must follow in handling an appeal from a county court.
[4] This difference in applicable procedure is illustrated in
Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d
16 (2018). In that case, while discussing the district courts’
“inherent authority to regulate such things as timing of record
preparation, extension of brief dates, and argument dates,”
the Supreme Court compared the district courts’ rule for fil-
ing a statement of errors against our own rules for filing
appellate briefs. Id. at 15, 907 N.W.2d at 27. Specifically, the
court stated:
One of our court rules requires a section of the appel-
lant’s brief to contain, under an appropriate heading,
“[a] separate, concise statement of each error a party
contends was made by the trial court . . . .” Like the
district court’s statement of errors rule, our rule cautions
that “consideration of the case will be limited to errors
assigned and discussed,” but that “[t]he court may, at its
option, notice a plain error not assigned.” In contrast to
the district court’s rule, our rule is grounded in statute,
which requires that “[t]he brief of appellant shall set out
particularly each error asserted . . . .”
Id. at 18-19, 907 N.W.2d at 28-29. While the substance of this
quote is not relevant to the controversy at hand, it highlights
that different rules are in effect when a district court sits as an
appellate court compared to when an appellate court is directly
involved. Therefore, we determine that the briefing rules set
forth in the Nebraska Court Rules of Appellate Practice do not
govern appeals to the district court when sitting as an inter-
mediate court of appeals. Instead, the Uniform District Court
Rules of Practice and Procedure govern the briefing rules
when a district court sits as an intermediate court of appeals.
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Nebraska Court of Appeals Advance Sheets
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STATE V. POLLOCK
Cite as 33 Neb. App. 236With this finding, we conclude the district court was not obli-
gated to warn Pollock that his appeal was subject to dismissal
without further notice if he failed to abide by § 2-110.
[5] However, we must still address whether the district
court’s dismissal of Pollock’s appeal for failure to conform
to the district court’s briefing schedule was an abuse of dis-
cretion. When the district court dismissed Pollock’s appeal,
the Uniform District Court Rules of Practice and Procedure
did not include rules for the filing of briefs. That has since
changed. Effective September 11, 2024, § 6-1518 was updated
to address briefs and oral arguments. Section 6-1518(F)(1)(a)
(rev. 2024) now dictates as follows:
Appellant’s or Petitioner’s brief must be served and filed
within 30 days after the date the bill of exceptions is
due to be filed. If no request for preparation of a bill of
exceptions is filed, Appellant’s or Petitioner’s briefs must
be served and filed within 30 days after the transcript is
filed, unless the court directs otherwise.
Additionally, the rules now provide that “[r]equests for addi-
tional time to file briefs shall be supported by a showing of
good cause.” § 6-1518(F)(1). While these new rules provide
more concrete deadlines for the filing of briefs, we are bound
by the procedural rules that were in effect when the appeal was
dismissed. It is a general proposition that “‘new procedural
statutes have no retroactive effect upon any steps that may
have been taken in an action before such statutes were effec-
tive. . . . All things performed and completed under the old law
must stand.’” State v. Galindo, 278 Neb. 599, 628, 774 N.W.2d
190, 219 (2009). Thus, our review is limited to the rules in
effect when the district court dismissed Pollock’s appeal.
[6,7] Although there was no rule under the Uniform District
Court Rules of Practice and Procedure related to briefing
schedules when Pollock’s appeal was dismissed, § 6-1518(B)
(rev. 2022) stated:
Within 10 days of filing the bill of exceptions in
an appeal to the district court, the appellant shall file
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Nebraska Court of Appeals Advance Sheets
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STATE V. POLLOCK
Cite as 33 Neb. App. 236with the district court a statement of errors which shall
consist of a separate, concise statement of each error a
party contends was made by the trial court. Each assign-
ment of error shall be separately numbered and para-
graphed. Consideration of the cause will be limited to
errors assigned, provided that the district court may, at its
option, notice plain error not assigned. This rule shall not
apply to small claims appeals.
Where an appellant fails to comply with § 6-1518(B), appellate
review is limited to plain error. State v. Warren, 312 Neb. 991,
982 N.W.2d 207 (2022). The bill of exceptions in this mat-
ter was filed on June 27, 2023, and Pollock failed to submit
a statement of errors within 10 days. Therefore, at that point,
the district court could have limited its review to plain error.
Id. See North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970
N.W.2d 461 (2022). However, Neb. Ct. R. § 6-1519 allows the
district courts, upon a showing of good cause, to suspend a
rule in a particular instance to avoid a manifest injustice.
[8] In Houser v. American Paving Asphalt, 299 Neb.
1, 15-16, 907 N.W.2d 16, 27 (2018), the Supreme Court
explained it “has never held that a district court lacks the
power to extend the time for filing a statement of errors or
that its power to do so is limited by [§ 6-1519].” The Supreme
Court stated, “This is not surprising given that early on, we
characterized [§ 6-1519] as ‘simply a procedural tool designed
to frame the issues to be addressed in the appeal to the dis-
trict court.’” Houser, 299 Neb. at 16, 907 N.W.2d at 27. The
Supreme Court went on to hold that the district court had the
authority to extend the time for filing a statement of errors
and that this authority stems from the district court’s “inherent
judicial power . . . to do all things reasonably necessary for
the proper administration of justice.” Id. at 15, 907 N.W.2d at
26. And although we recognize the updates to § 6-1518 (rev.
2024) now provide an independent source of authority to regu-
late briefing schedules, prior to the adoption of those changes,
the district courts’ authority to extend and regulate briefing
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STATE V. POLLOCK
Cite as 33 Neb. App. 236schedules similarly stemmed from their inherent authority to
do all things reasonably necessary for the proper administra-
tion of justice. Having determined that the district court had
the right to regulate the briefing schedule in connection with
Pollock’s appeal, we find that the court did not abuse its dis-
cretion in dismissing Pollock’s appeal for failing to conform
with that schedule.
We determine the district court did not abuse its discre-
tion in dismissing Pollock’s appeal for failing to timely file
his brief. We first note that Pollock had 151 days from the
date he filed his notice of appeal on May 4, 2023, to the last
deadline, set for October 2. Although Pollock had requested a
fourth period of additional time prior to the October 2 dead-
line, the district court made it clear in its prior order that no
more continuances would be granted. It also explained that
“the briefing schedule will proceed with or without [Pollock’s]
initial brief.” And although it is not strictly relevant to our
analysis, we also observe that even if Pollock’s fourth motion
to continue had been granted, he still would have bypassed
his requested 7-day extension by not filing his brief until
October 11. Given that the district court had already granted
Pollock three periods of additional time to file his brief, made
it clear in its third order that no more continuances would
be granted, and, in the same order, referenced the original
scheduling order that set forth the consequences for failing to
timely file a brief, we do not believe the district court’s deci-
sion to dismiss Pollock’s appeal for failing to timely file his
brief was untenable or unreasonable. Therefore, we conclude
that the district court did not abuse its discretion in dismissing
Pollock’s appeal.
CONCLUSION
We determine the district court did not abuse its discretion
in dismissing Pollock’s appeal for failure to timely submit his
brief as previously ordered by the district court.
Affirmed.