State v. Pollock ( 2024 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/08/2024 09:06 AM CDT
    - 236 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    State 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.
    - 237 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    8. 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
    - 238 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    of 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.
    - 239 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    ASSIGNMENT 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
    - 240 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    court. 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.
    - 241 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    With 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
    - 242 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    with 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
    - 243 -
    Nebraska Court of Appeals Advance Sheets
    33 Nebraska Appellate Reports
    STATE V. POLLOCK
    Cite as 
    33 Neb. App. 236
    schedules 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.
    

Document Info

Docket Number: A-23-922

Filed Date: 10/8/2024

Precedential Status: Precedential

Modified Date: 10/8/2024