McEwen v. Nebraska State College Sys. , 303 Neb. 552 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/20/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
Dr. Robert McEwen, appellant, v. Nebraska
State College System, appellee.
___ N.W.2d ___
Filed July 12, 2019. No. S-17-638.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.
2. Statutes. The meaning of a statute is a question of law.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, an appellate court must determine whether it has
jurisdiction.
4. Rules of the Supreme Court: Appeal and Error. A petition for further
review and supporting memorandum brief must specifically set forth
and discuss any error assigned to the Court of Appeals.
5. Courts: Judgments: Jurisdiction: Appeal and Error. A district court
sitting as an appellate court has the same power to reconsider its orders,
both inherently and under Neb. Rev. Stat. § 25-2001 (Reissue 2016), as
it does when it is a court of original jurisdiction.
6. Pleadings: Judgments. A determination as to whether a motion, how-
ever titled, should be deemed a motion to alter or amend a judgment
depends upon the contents of the motion, not its title.
7. Pleadings: Judgments: Time. In order to qualify for treatment as a
motion to alter or amend a judgment, a motion must be filed no later
than 10 days after the entry of judgment, as required under Neb. Rev.
Stat. § 25-1329 (Reissue 2016), and must seek substantive alteration of
the judgment.
8. Appeal and Error. A clear distinction exists in Nebraska between pro-
ceedings by petition in error and an appeal.
9. Judgments: Final Orders: Appeal and Error. A petition in error in
the district court to review a judgment or final order of an inferior tri-
bunal is in its nature an independent proceeding having for its purpose
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
the removal of the record from an inferior to a superior tribunal to
determine if the judgment or final order entered is in accordance with
the law.
10. Courts: Appeal and Error. An error proceeding is distinct and inde-
pendent, while the appeal is a mere continuation of the same cause in
another court.
11. Statutes. Statutory language is to be given its plain and ordinary
meaning.
12. Statutes: Intent. When interpreting a statute, effect must be given, if
possible, to all the several parts of a statute; no sentence, clause, or word
should be rejected as meaningless or superfluous if it can be avoided.
13. Statutes: Intent: Appeal and Error. An appellate court must look to a
statute’s purpose and give to the statute a reasonable construction which
best achieves that purpose, rather than a construction which would
defeat it.
14. Statutes: Legislature: Presumptions: Judicial Construction. In deter-
mining the meaning of a statute, the applicable rule is that when the
Legislature enacts a law affecting an area which is already the subject
of other statutes, it is presumed that it did so with full knowledge of the
preexisting legislation and the decisions of the Nebraska Supreme Court
construing and applying that legislation.
15. Statutes: Appeal and Error. In interpreting a Nebraska civil procedure
statute modeled upon a federal rule of civil procedure, an appellate
court may look to federal decisions for guidance.
16. Statutes: Intent: Appeal and Error. The purpose of Neb. Rev. Stat.
§ 25-1329 (Reissue 2016), like many other provisions of Nebraska law,
is to save parties from the delay and expense associated with unneces-
sary appeals, which can often be avoided by providing every reasonable
opportunity for a lower court to correct its own mistakes.
17. Courts: Judgments: Time. No court is required to persist in error, and,
if a court concludes that a former ruling was wrong, the court may cor-
rect it at any time while the case is still in the court’s control.
18. Statutes: Judicial Construction: Legislature: Presumptions: Intent.
Where a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent.
19. Judgments: Words and Phrases: Appeal and Error. A judgment
entered by a district court at the conclusion of an error proceeding
pursuant to Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue 2016)
is a “judgment” within the meaning of Neb. Rev. Stat. § 25-1329
(Reissue 2016).
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
20. Judgments: Pleadings: Time: Appeal and Error. A motion to alter
or amend a judgment, which motion seeks a substantive alteration of a
judgment entered by a district court disposing of a petition in error and
which motion is filed within 10 days of the entry of the judgment, will
terminate the time for running of appeal pursuant to Neb. Rev. Stat.
§ 25-1912(3) (Cum. Supp. 2018).
21. Public Policy. While the doctrine of stare decisis is entitled to great
weight, it is grounded in the public policy that the law should be stable,
fostering both equality and predictability of treatment.
22. Courts: Appeal and Error. Overruling precedent is justified when the
purpose is to eliminate inconsistency.
23. ____: ____. Some of the relevant factors in deciding whether to adhere
to the principle of stare decisis include workability, the antiquity of the
precedent, whether the decision was well reasoned, whether experience
has revealed the precedent’s shortcomings, and the reliance interests
at stake.
24. Courts: Case Overruled: Appeal and Error. The Nebraska Supreme
Court’s decision in Goodman v. City of Omaha, 274 Neb. 539, 742
N.W.2d 26 (2007), and cases relying upon it are overruled to the extent
they hold that Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not
apply to a judgment of a district court acting as an intermediate appel-
late court.
25. Courts: Appeal and Error. Upon reversing a decision of the Nebraska
Court of Appeals, the Nebraska Supreme Court may consider, as it
deems appropriate, some or all of the assignments of error the Court of
Appeals did not reach.
Petition for further review from the Court of Appeals, Inbody,
R iedmann, and A rterburn, Judges, on appeal thereto from the
District Court for Dawes County, Derek C. Weimer, Judge.
Judgment of Court of Appeals reversed, and cause remanded
for further proceedings.
Howard P. Olsen, Jr., and Adam A. Hoesing, of Simmons
Olsen Law Firm, P.C., L.L.O., for appellant.
George E. Martin III and Leigh Campbell Joyce, of Baird
Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
Cassel, J.
I. INTRODUCTION
In a series of decisions involving appeals, this court deter-
mined that a motion to alter or amend a judgment under
Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not apply to
a decision of a district court acting as an intermediate appel-
late court. Thus, in those prior decisions, the motion was
held not to terminate the time for appeal to a higher court.1
The question presented here is whether, given a longstanding
distinction between appeals and error proceedings, § 25-1329
applies to a district court’s judgment disposing of a petition
in error.2 For numerous reasons, we conclude that it does.
And because we conclude that the original reasoning was
incomplete and that doing otherwise would exacerbate a “pro-
cedural minefield,” we overrule several previous decisions
to the extent that they held § 25-1329 inapplicable to judg-
ments of a district court acting as an intermediate appellate
court. We therefore reverse the Nebraska Court of Appeals’
summary dismissal of this appeal and remand the cause for
further proceedings.
II. BACKGROUND
Dr. Robert McEwen filed a petition in error in the district
court for Dawes County, Nebraska, against the Nebraska State
College System (NSCS), a system of three state colleges in
Nebraska. He alleged that he was wrongfully terminated from
his position as a tenured professor at Chadron State College.
Neither party disputes that the petition in error was timely
filed. Responding to the petition in error, NSCS’ answer admit-
ted that McEwen was discharged on March 16, 2016, that
McEwen timely requested an additional hearing before NSCS’
board of trustees under a provision of the collective bar-
gaining agreement, and that on April 18, NSCS’ chancellor
1
See Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2018).
2
See Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue 2016).
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
denied the additional hearing, thereby finalizing the discharge.
McEwen’s petition was filed on May 17. District court pro-
ceedings followed.
By a judgment styled as a memorandum order, the district
court “overruled” his petition on March 31, 2017 (March
judgment).
Exactly 10 days later, on April 10, 2017, McEwen moved
for a new trial or, in the alternative, for an order vacating the
March judgment. The alternative motion stated that it was
based on Neb. Rev. Stat. § 25-2001 (Reissue 2016).
After a hearing, the district court overruled both aspects of
the motion, doing so by an order entered on May 25, 2017
(May order). Because the court had not conducted a trial
and reviewed only a transcript of the administrative proceed-
ings, it concluded that a motion for new trial was not proper.
Turning to McEwen’s alternative motion to vacate judg-
ment, the court explained that it had made a mistake of fact
regarding the presence of an individual at an administrative
hearing. But the court concluded that the individual’s pres-
ence was not the “determining fact” in the court’s conclu-
sions regarding the “‘17.3’” issue, referring to a section of
a collective bargaining agreement. Thus, the court did not
change its decision regarding the merits of McEwen’s petition
in error.
Within 30 days after the May order, McEwen filed a notice
of appeal. In case No. A-17-638, the Court of Appeals sum-
marily dismissed the appeal for lack of jurisdiction. The court’s
summary order explained that McEwen’s motion for new trial
did not “toll” the time to file a notice of appeal and that
McEwen’s notice of appeal was not timely filed.
McEwen moved for rehearing in the Court of Appeals.
He argued that the May order was itself a final order. He
premised this argument upon § 25-2001 and this court’s deci-
sion in Capitol Construction v. Skinner.3 Notably, McEwen
3
Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721 (2010).
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
discussed two of our cases, Goodman v. City of Omaha 4 and
Timmerman v. Neth,5 regarding the applicability of a motion
to alter or amend a judgment 6 where a district court acts as an
intermediate appellate court. Based on this case law, McEwen
conceded, as he did at oral argument before this court, that his
motion to vacate did not act as a motion to alter or amend the
judgment, which would have terminated the running of the
appeal time.
By a summary order in case No. A-17-638, the Court of
Appeals denied rehearing. The court explained that McEwen’s
motion to vacate did not “toll” the time to appeal from
the March judgment. The court added, “Accordingly, by the
time the district court entered [the May] order denying the
motion to vacate, [McEwen] could only appeal from that
order. However, [McEwen’s] brief on appeal argues only that
the district court erred by denying his petition in error in the
March [judgment].” Thus, the Court of Appeals concluded
that it lacked jurisdiction to consider the merits of the March
judgment and left in place the dismissal of the appeal from the
May order.
McEwen timely petitioned for further review, which we
granted.7
After oral argument in this court, we requested supplemental
briefing by the parties addressing whether, in light of the dis-
tinction traditionally recognized between petitions in error and
appeals created by various statutes, the Legislature intended
for motions to alter or amend a judgment under § 25-1329
to apply to judgments entered in error proceedings and, if so,
the proper application of that statute to the case before us.
The parties promptly submitted supplemental briefs, which we
have considered.
4
Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).
5
Timmerman v. Neth, 276 Neb. 585, 755 N.W.2d 798 (2008).
6
See § 25-1329.
7
See Neb. Ct. R. App. P. § 2-102(F) (rev. 2015).
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
III. ASSIGNMENTS OF ERROR
McEwen assigns that the Court of Appeals erred in (1) dis-
missing his appeal for lack of jurisdiction and (2) overruling
his subsequent motion for rehearing.
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.8
[2] The meaning of a statute is a question of law.9
V. ANALYSIS
[3] The Court of Appeals denied McEwen’s motion for
rehearing, basing its denial on Capitol Construction v. Skinner.10
No doubt relying on prior decisions of this court, the court did
not consider whether § 25-1329 affected the time for appeal
from the March judgment. And neither party argued that ques-
tion to the Court of Appeals. But that matters not. Before
reaching the legal issues presented for review, an appellate
court must determine whether it has jurisdiction.11 If an alter-
native basis supported jurisdiction, the Court of Appeals was
bound to apply it unless it was foreclosed by existing precedent
from this court.12 Here, the Court of Appeals quite reasonably
concluded that Capitol Construction dictated that it lacked
jurisdiction of McEwen’s appeal.
1. McEwen’s Primary A rgument
On further review, McEwen relies primarily on the same
argument he presented to the Court of Appeals in support of
8
State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d
903 (2018).
9
In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014).
10
Capital Construction, supra note 3.
11
Becher v. Becher, 302 Neb. 720, 925 N.W.2d 67 (2019).
12
See State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
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rehearing there—that the district court’s order overruling his
alternative motion to vacate was itself a final, appealable order
under Capitol Construction.
[4] Before turning to that argument, we note that on fur-
ther review, McEwen has abandoned his argument based on
his motion for new trial. The Court of Appeals rejected that
argument, and in McEwen’s brief in support of his petition for
further review, he neither assigns error nor presents argument
addressing the motion for new trial. It is well established that
a petition for further review and supporting memorandum brief
must specifically set forth and discuss any error assigned to the
Court of Appeals.13 Therefore, we do not consider it.
Regarding McEwen’s motion to vacate, both his argument
and the Court of Appeals’ summary disposition rely upon our
decision in Capitol Construction, which we first summarize
and then apply.
(a) Capitol Construction
Capitol Construction was an appeal from county court to
district court, where the district court dismissed the appeal
for lack of progression after the defendants, who brought the
appeal, failed to reply to a progression letter.14 But the pro-
gression letter was sent only to the defendants’ trial counsel,
who failed to either respond or forward the notice to appel-
late counsel.
Within 10 days of the dismissal, the defendants, through their
appellate counsel, filed a motion to reinstate the appeal. The
district court denied the motion, and the defendants appealed to
the Court of Appeals. This appeal was filed more than 30 days
after the dismissal, but within 30 days of the denial of their
motion to reinstate.
Before the Court of Appeals, the defendants sought review
of the district court’s denial of their motion to reinstate. The
13
See State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).
14
Capitol Construction, supra note 3.
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McEWEN v. NEBRASKA STATE COLLEGE SYS.
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Court of Appeals dismissed the appeal as untimely,15 and we
granted further review.
[5] In analyzing the jurisdictional question, we first reiter-
ated our holding in State v. Hausmann,16 that a district court
sitting as an appellate court has the same power to reconsider
its orders, both inherently and under § 25-2001, as it does
when it is a court of original jurisdiction.17
We then said that “an order denying a motion to vacate or
modify a final order is itself a final, appealable order.”18 But
we reasoned the Court of Appeals had jurisdiction, because
“[the] later order [was] based upon grounds that [made] it
independently final and appealable and the merits of that order
[were] the issue raised on appeal.”19 Although it was not nec-
essary to our decision in Capitol Construction, we observed
that the Court of Appeals did not have jurisdiction to consider
an appeal challenging the merits of the earlier, progression-
based dismissal order. We then recited the familiar proposition
that a motion for reconsideration does not toll the time for
appeal and is considered nothing more than an invitation to
the court to consider exercising its inherent power to vacate or
modify its own judgment.20
(b) Not Independently Final
and Appealable
Accepting for the moment the reasoning of Capitol
Construction to the extent that that decision implicitly relied on
Goodman, Timmerman, and Hausmann regarding § 25-1329,
McEwen’s argument overlooked an important distinction: There
15
Capitol Construction v. Skinner, 17 Neb. Ct. App. 662, 769 N.W.2d 792
(2009), reversed, Capitol Construction, supra note 3.
16
Hausmann, supra note 12.
17
Capitol Construction, supra note 3.
18
Id. at 423, 778 N.W.2d at 725.
19
Id. at 425, 778 N.W.2d at 726.
20
See, e.g., Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000).
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was no independent basis for appeal from McEwen’s alterna-
tive motion to vacate. Although the district court acknowl-
edged a factual misstatement, it did not modify its judgment.
There was no intervening new matter, as there was in Capitol
Construction. On appeal to the Court of Appeals, McEwen’s
attack ran only to the March judgment. As he stated in his
original brief, “The errors assigned relate to [McEwen’s] rights
under Section 17.3 of the [collective bargaining agreement].”21
The May order was not based upon grounds that made it inde-
pendently final and appealable, and the merits of that order
were not the issue raised on appeal.
2. Motions to A lter or
A mend in A ppeals
It follows that unless McEwen’s alternative motion to
vacate qualified as a motion to alter or amend a judgment
pursuant to § 25-1329, his motion did not terminate the time
for taking an appeal from the March judgment and his appeal
from the May order could not circumvent the outcome that
followed. Until we requested supplemental briefing, McEwen
took the position that § 25-1329 did not apply. Now, his posi-
tion has shifted.
Before turning to the specific question that we posed to the
parties, we briefly recall the development of a motion to alter
or amend a judgment created in 2000,22 which is codified as
§ 25-1329, and our case law determining that it does not apply
to an appellate decision of a district court acting as an inter-
mediate court of appeals.
(a) State v. Bellamy
In State v. Bellamy,23 we acknowledged a statute had been
amended to provide that the running of the time for filing a
21
Brief for appellant at 18.
22
See 2000 Neb. Laws, L.B. 921, § 7.
23
State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002).
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notice of appeal would be terminated not only by a timely
motion for new trial 24 or by a timely motion to set aside a verdict
or judgment,25 but, also, by a timely motion to alter or amend a
judgment under § 25-1329. This amendment 26 occurred in the
same legislation that introduced a motion to alter or amend a
judgment into Nebraska’s civil procedure statutes.
[6,7] Two important lessons from Bellamy suggest that
McEwen’s motion might qualify as a motion to alter or amend.
First, a determination as to whether a motion, however titled,
should be deemed a motion to alter or amend a judgment
depends upon the contents of the motion, not its title.27 This
remains true.28 Thus, it matters not that McEwen’s motion was
titled as an alternative motion to vacate. Second, in order to
qualify for treatment as a motion to alter or amend a judgment,
a motion must be filed no later than 10 days after the entry of
judgment, as required under § 25-1329, and must seek substan-
tive alteration of the judgment.29 McEwen’s alternative motion
to vacate was filed within 10 days of, and sought substantive
alteration of, the March judgment. Thus, his motion seemingly
met both of the Bellamy criteria.
In Bellamy, we implicitly recognized that § 25-1329 was
modeled on Fed. R. Civ. P. 59(e) as it then existed.30 We cited
numerous federal cases holding that a motion for reconsidera-
tion, if filed within 10 days of the entry of judgment, is the
functional equivalent of a motion to alter or amend a judgment
brought pursuant to rule 59(e).
24
See Neb. Rev. Stat. § 25-1144.01 (Reissue 2016).
25
See Neb. Rev. Stat. § 25-1315.02 (Reissue 2016).
26
See 2000 Neb. Laws, L.B. 921, § 15.
27
See Bellamy, supra note 23.
28
See Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284
(2017).
29
See Bellamy, supra note 23.
30
28 U.S.C. app. rule 59(e) (2000).
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But in Bellamy, we did not address whether § 25-1329
applies to a district court’s review of a judgment or final
order of a lower court or tribunal. Nor did we examine, given
that § 25-1329 was modeled on a federal rule which might
have prompted us to consider federal interpretive decisions,31
whether rule 59(e) has been applied in cases where a federal
district court reviews the decision of a federal agency.
(b) Inapplicable to Appeals
We were soon forced to confront whether § 25-1329 applies
where an appeal is taken to the district court. In several cases,
we determined that it did not. We briefly summarize those
decisions.
(i) Statutory Appeal From
Municipal Tribunal
Goodman v. City of Omaha 32 was the first case to deter-
mine whether § 25-1329 applied to a district court’s hearing
an appeal. The plaintiff appealed an Omaha Zoning Board
of Appeals decision, pursuant to Neb. Rev. Stat. § 14-413
(Reissue 1997). The district court affirmed the board’s deci-
sion. The plaintiff moved for a new trial and moved to alter or
amend the judgment. The district court denied both motions.
After the plaintiff perfected an appeal to this court, we dis-
missed the appeal for lack of jurisdiction.
We said, “The present case concerns an appeal from a zon-
ing board of appeals to the district court.”33 We explained that
decisions of a zoning board of appeals were reviewable by a
31
See, e.g., Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880
N.W.2d 906 (2016); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824
N.W.2d 12 (2012); Bailey v. Lund-Ross Constr. Co., 265 Neb. 539, 657
N.W.2d 916 (2003) (federal cases construing federal civil procedural
rules may be used for guidance in construing equivalent Nebraska civil
procedural rules).
32
Goodman, supra note 4.
33
Id. at 543, 742 N.W.2d at 29 (emphasis supplied).
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district court pursuant to two specific statutes,34 but that the
scope of the district court’s review was limited to the legality
or illegality of the board’s decision.35 We relied upon an earlier
decision characterizing the district court’s role under this stat-
ute as an appellate court.36 We then determined that the district
court had functioned as an “intermediate appellate court of
appeals, and not as a trial court.”37
Having determined that the district court was functioning
as an intermediate court of appeals, we then explained that
the district court’s order “was not a judgment, but, rather, was
an appellate decision reviewing the judgment rendered by the
Board.”38 We relied upon the statutory definition of a judg-
ment as “the final determination of the rights of the parties in
an action”39 and our description of a “judgment” in Strunk v.
Chromy-Strunk as “a court’s final consideration and determina-
tion of the respective rights and obligations of the parties to an
action as those rights and obligations presently exist.” 40
The outcome in Goodman was clear. We held that because
the district court was acting as an intermediate court of
appeals and not as a trial court, a motion to alter or amend
was inappropriate and would not terminate the time for filing
an appeal.
(ii) APA Appeals
Timmerman v. Neth 41 extended our decision in Goodman to
a district court’s judicial review of an agency’s decision under
34
See § 14-413 and Neb. Rev. Stat. § 14-414 (Reissue 1997).
35
See Goodman, supra note 4.
36
Id. (citing Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15
(1996)).
37
Goodman, supra note 4, 274 Neb. at 543, 742 N.W.2d at 30.
38
Id. at 544, 742 N.W.2d at 30.
39
Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).
40
Strunk v. Chromy-Strunk, 270 Neb. 917, 929, 708 N.W.2d 821, 834 (2006).
41
Timmerman, supra note 5.
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the Administrative Procedure Act (APA).42 There, the plaintiff
appealed pursuant to the APA and the district court affirmed
the agency’s decision. The plaintiff then moved to alter or
amend the judgment. The district court overruled the motion,
and the plaintiff appealed to the Court of Appeals. While this
appeal was taken within 30 days of the district court’s order
overruling the motion to alter or amend, it was filed more
than 30 days after the district court’s order affirming the
agency decision. Citing our decision in Goodman, the Court of
Appeals summarily dismissed the appeal as filed out of time.
We granted further review.
In Timmerman, we adhered to our reasoning in Goodman.
We held that because the district court was functioning as an
intermediate court of appeals, the plaintiff’s motion to alter
or amend the judgment did not toll the time for perfecting an
appeal.43 We rejected the plaintiff’s argument that language in
the APA, which referred to the district court’s decision in an
APA appeal as a “judgment,” 44 and language in the underlying
license revocation statute,45 which also used the word “judg-
ment,” called for a different outcome. We explained that “the
word ‘judgment’ refers to different things in different contexts,
and is often used generally to refer to the result of any kind of
judicial decisionmaking process.” 46 We reiterated our “specific
holding that a ‘judgment,’ for purposes of § 25-1329, does not
include an appellate decision of a district court.” 47
We later applied the same reasoning in a purported APA
appeal.48 Although we ultimately determined that there had not
42
Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 1999 & Cum. Supp. 2006).
43
See Timmerman, supra note 5.
44
§ 84-918(1).
45
Neb. Rev. Stat. § 60-498.04 (Reissue 2004).
46
Timmerman, supra note 5, 276 Neb. at 589, 755 N.W.2d at 801.
47
Id.
48
See Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d
687 (2016).
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been a final agency decision, our opinion did not question the
reasoning from Goodman and Timmerman.
(iii) Appeals From County Court
We have articulated equivalent reasoning in connection with
an appeal from a county court to a district court, which
was then appealed to a higher appellate court. In State v.
Hausmann,49 we held that while an intermediate appellate court
still has jurisdiction over an appeal, it has the inherent power
to vacate or modify a final judgment or order.
But in so doing, we emphasized that “in the absence of an
applicable rule to the contrary, a motion asking the [district]
court to exercise that inherent power does not toll the time for
taking an appeal.”50 We explained that a party can move the
court to vacate or modify a final order, but that if the court
does not grant the motion, a notice of appeal must be filed
within 30 days of the entry of the earlier final order if the party
intends to appeal it.51 To the extent that our reasoning applied
to a motion seeking substantive alteration of the district court
judgment and filed within 10 days of its entry, we implicitly
followed Goodman and Timmerman.
3. Petitions in Error
We now turn to the question which prompted us to grant
further review. Before examining the parties’ arguments, we
recall the history of error proceedings in Nebraska and prin-
ciples of law that flowed from the respective origins of error
proceedings and appeals.
(a) History
The writ of error is not of statutory origin, but is derived
from the common law.52 In contrast, the remedy or procedure
49
Hausmann, supra note 12.
50
Id. at 827, 765 N.W.2d at 225.
51
Id.
52
4 C.J.S. Appeal and Error § 29 (2019).
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by appeal is of civil-law origin and was introduced therefrom
into courts of equity and admiralty.53 A common-law right of
appeal does not exist.54
Our earliest statutes, including those governing petitions in
error, stem from the Ohio Code of Civil Procedure.55 In 1858,
the Territorial Legislature copied most of the Nebraska Code of
Civil Procedure from Ohio’s code.56 It was not until Nebraska
received statehood that the Legislature replaced actions at
law and suits in equity with the civil action and specified that
judgments and final orders in civil actions could be reviewed
only by appeal.57 In 1871, the Legislature changed its mind
and returned to error proceedings as the method for reviewing
judgments and final orders in civil actions. But in 1873, the
Legislature began to shift review of district court judgments
in equitable and civil actions to appeals.58 The methods also
changed in criminal cases, although it was not until 1982 that
the writ of error was eliminated.59
Although, in 1905, error proceedings ceased to be a means
for this court’s review of civil district court judgments and
final orders, error proceedings in the district court to review
judgments and final orders of courts and tribunals inferior
in jurisdiction to the district court lived on.60 In 1974, the
Legislature eliminated the petition in error as a method of
obtaining district court review of county court judgments.61
53
Id., § 41.
54
Id.
55
See John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001).
56
See id.
57
See id.
58
See id.
59
See id.
60
See In re Estate of Berg, 139 Neb. 99, 296 N.W. 460 (1941).
61
Miller v. Brunswick, 253 Neb. 141, 571 N.W.2d 245 (1997).
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But petitions in error continue as a means of judicial review
of the judgments and final orders of tribunals exercising
judicial functions and inferior in jurisdiction to the district
court.62 And that issue provides the basis for the proceeding
now before us.
From this history, one can readily perceive that the
Legislature did not treat error proceedings and appeals inter-
changeably. This history delineates two separate and distinct
avenues for judicial review. And our case law supports that
perception.
(b) Error Proceedings Clearly
Distinct From Appeals
[8] Over 120 years ago, we said that a clear distinction
exists in this state between proceedings by petition in error
and an appeal.63 It was only a few years later when we
explained that one cannot be denied his or her right of review
in the appellate courts and that proceedings in error are always
resorted to where no other method is pointed out or provided
for.64 This principle remains vital and effective. Where no other
method of appeal is provided, one may obtain judicial review
by proceedings in error under §§ 25-1901 to 25-1908.65 The
right of appeal in this state is purely statutory; unless the stat-
ute provides for an appeal from the decision of a quasi-judicial
tribunal, such right does not exist.66
[9,10] The respective proceedings differ in nature. “The
proceeding by petition in error is substantially an independent
action, in which the plaintiff, as the moving party, controls
62
See § 25-1901.
63
See Western Cornice & Mfg. Works v. Leavenworth, 52 Neb. 418, 72 N.W.
592 (1897).
64
See Dodge County v. Acom, 72 Neb. 71, 100 N.W. 136 (1904).
65
See Moore v. Black, 220 Neb. 122, 368 N.W.2d 488 (1985).
66
From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953). See, also, Heckman
v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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both the pleading and the process of the court.” 67 A petition in
error in the district court to review a judgment or final order
of an inferior tribunal is in its nature an independent proceed-
ing having for its purpose the removal of the record from an
inferior to a superior tribunal to determine if the judgment or
final order entered is in accordance with the law.68 It is in the
nature of a new action in that a petition in error is required to
be filed, and a summons is required to be issued upon the writ-
ten praecipe of the petitioner in error.69 The term “appeal” is a
process of civil-law origin and removes the cause entirely, sub-
jecting the facts as well as the law to a review and retrial.70 An
error proceeding is distinct and independent, while the appeal
is a mere continuation of the same cause in another court.71 The
dispositions of each also differ.
When judgment of reversal is entered in the error pro-
ceeding, that proceeding is at an end. When rendered on
appeal, the same cause is still pending and undisposed
of. But when, on appeal, the judgment of reversal also
remands the cause for further proceedings in the inferior
tribunal, it is manifest that the cause is fully disposed of
so far as the district court is concerned.72
We have said that the subjects of review on petition in error
and an appeal are so distinctively different and dissimilar that
the provisions of the statute relating to each question cannot
be taken together and construed as if they were one law and
effect given to every provision.73
67
Polk v. Covell, 43 Neb. 884, 890, 62 N.W. 240, 242 (1895).
68
See Dovel v. School Dist. No. 23, 166 Neb. 548, 90 N.W.2d 58 (1958).
69
See id. (emphasis supplied).
70
Consolidated Credit Corporation v. Berger, 141 Neb. 598, 4 N.W.2d 571
(1942).
71
See Ribble v. Furmin, 69 Neb. 38, 94 N.W. 967 (1903).
72
Id. at 43, 94 N.W. at 969.
73
Consolidated Credit Corporation, supra note 70.
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We acknowledge that our case law has not always spoken
consistently. In Hooper Telephone Co. v. Nebraska Telephone
Co.,74 we stated that the word “‘appeal’” is a word of “general
application in the law. Ordinarily [it] refer[s] to the removal of
proceedings from one court or tribunal to another for review.”
And in McClellan v. Board of Equal. of Douglas Cty.,75 we
observed that it is now common for our court to refer to an
“‘appeal by petition in error,’” citing six cases using this
imprecise description.
[11-13] Ultimately, it is the Legislature’s intention in enact-
ing § 25-1329 that matters. Statutory language is to be given
its plain and ordinary meaning.76 When interpreting a statute,
effect must be given, if possible, to all the several parts of
a statute; no sentence, clause, or word should be rejected as
meaningless or superfluous if it can be avoided.77 An appel-
late court must look to a statute’s purpose and give to the
statute a reasonable construction which best achieves that
purpose, rather than a construction which would defeat it.78
In our effort to determine the Legislature’s intent regard-
ing § 25-1329, we sought the parties’ assistance. We turn to
their arguments.
(c) Parties’ Arguments
McEwen first argues, essentially, that an error proceed-
ing under §§ 25-1901 to 25-1908 is a type of original civil
action under Neb. Rev. Stat. § 25-101 (Reissue 2016) which
abolished the distinctions between actions at law and suits in
equity and substituted one form of action, called a civil action.
74
Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245, 255, 147
N.W. 674, 678 (1914).
75
McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 591, 748
N.W.2d 66, 74 (2008).
76
Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717 (2019).
77
State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
78
Id.
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Viewing a petition in error as an original civil action, he rea-
sons that it results in a judgment within the meaning of both
§§ 25-1301(1) and 25-1329.
Backing away slightly, he suggests that there is no reason
to believe the Legislature did not intend the term “judgment”
in § 25-1329 to include a decision by a court or judge in a
petition in error. He urges that we abandon Goodman and
subsequent case law, characterizing Goodman as “not entirely
consistent” with legislative intent.79 And he characterizes our
existing jurisprudence in “appealing orders of judicial review
from a district court” as a “procedural minefield.” 80
NSCS relies upon our statement in McClellan that the dis-
tinction between the two methods of review “has largely been
to distinguish the method of perfecting each or to explain each
method’s peculiar rules of joinder of parties.” 81 It urges that
we read §§ 25-1329, 25-1301, and 25-1901 in pari materia
with Neb. Rev. Stat. § 25-1931 (Reissue 2016). It observes
that both §§ 25-1901 and 25-1931 (which specifies the time
for commencing a proceeding under § 25-1901) address steps
taken after a judgment is rendered or a final order is made,
in contrast to § 25-1329, which contemplates an action to
be taken after the entry of a judgment. These differences, it
argues, suggest ambiguity in the statutes. It would resolve
the ambiguity by looking to legislative history, which shows
that prior to 1999, § 25-1931 used “rendition” to describe the
action taken by the inferior tribunal; that in 1999, the word
“rendition” was changed to “entry”; and that in 2000, it was
changed back to “rendition.” 82 This, it argues, shows that the
Legislature has “made the ‘rendition’ of the decision . . . the
starting time for commencing the review process in the case
79
Supplemental brief for appellant at 6.
80
Id. at 7.
81
McClellan, supra note 75, 275 Neb. at 590, 748 N.W.2d at 73.
82
See, § 25-1931 (Reissue 1995); 1999 Neb. Laws, L.B. 43, § 12; 2000 Neb.
Laws, L.B. 921, § 16.
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of petition in error proceedings, but the ‘entry’ of the decision
. . . the starting time for commencing the review process in
other proceedings.” 83 It then argues that because § 25-1329
uses the word “entry,” this statute does not apply to decisions
rendered by the district court in petition in error proceedings.
NSCS also suggests that the Legislature has acquiesced in
our decisions.
(d) Applicable to Judgments
on Petitions in Error
For well over 100 years, we have referred to a district court’s
decision disposing of a petition in error under §§ 25-1901 to
25-1908 as a “judgment.” 84 And as recited above, we have
described an error proceeding as substantially an independent
action,85 in its nature an independent proceeding,86 in the nature
of a new action,87 and distinct and independent.88 It is true that
the scope of review in an error proceeding is limited.89 But the
limited scope of review does not affect the nature of the pro-
ceeding or detract from its significance to the parties.
83
Supplemental brief for appellee at 6.
84
See, e.g., Butler Cty. Landfill v. Butler Cty. Bd. of Supervisors, 299 Neb.
422, 908 N.W.2d 661 (2018); Thomas v. Lincoln Public Schools, 228 Neb.
11, 421 N.W.2d 8 (1988); Anania v. City of Omaha, 170 Neb. 160, 102
N.W.2d 49 (1960); Dovel, supra note 68; Olsen v. Grosshans, 160 Neb.
543, 71 N.W.2d 90 (1955); Consolidated Credit Corporation, supra note
70; Ribble, supra note 71; Bennett v. Otto, 68 Neb. 652, 94 N.W. 807
(1903); Slobodisky v. Curtis, 58 Neb. 211, 78 N.W. 522 (1899); Tootle,
Hosea & Co. v. Jones, 19 Neb. 588, 27 N.W. 635 (1886); Newlove v.
Woodward, 9 Neb. 502, 4 N.W. 237 (1880).
85
Polk, supra note 67.
86
Dovel, supra note 68.
87
Id.
88
Ribble, supra note 71.
89
See Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d
294 (1997) (court is to determine whether tribunal acted within its juris­
diction and whether decision rendered is supported by sufficient relevant
evidence).
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[14] Our decisions using this terminology and describing
an error proceeding’s nature shaped the Legislature’s crafting
of the language in § 25-1329. In determining the meaning
of a statute, the applicable rule is that when the Legislature
enacts a law affecting an area which is already the subject of
other statutes, it is presumed that it did so with full knowl-
edge of the preexisting legislation and the decisions of the
Nebraska Supreme Court construing and applying that legis-
lation.90 And in this instance, NSCS cites to legislative history
demonstrating the Legislature’s familiarity with the subject.
Thus, we are confident the Legislature understood that an
error proceeding in the district court is distinct and indepen-
dent from an appeal.
From the amendments to § 25-1931, NSCS reasons that
because the “rendition of the judgment” 91 by the “tribunal,
board, or officer exercising judicial functions and inferior in
jurisdiction to the district court” 92 starts the time for com-
mencement of an error proceeding in the district court, this
somehow means that the judgment of the district court at the
conclusion of the error proceeding is not “entered” within
the meaning of § 25-1329. We disagree. An appeal from
the district court’s disposition of the proceeding is governed
by § 25-1912, which uses both the term “rendered” and the
term “entry” to establish time limits on appeals and specifi-
cally contemplates termination of the appeal time by a timely
motion to alter or amend a judgment. Thus, the proper contrast
is between §§ 25-1931 and 25-1912, which shows that the
Legislature understood the difference between commencing an
error proceeding in district court and commencing an appeal
to the Court of Appeals from a district court’s judgment in an
error proceeding. Rather than supporting NSCS’ position, this
contrast supports applying § 25-1329.
90
White v. State, 248 Neb. 977, 540 N.W.2d 354 (1995).
91
See § 25-1931.
92
See § 25-1901.
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[15] Because § 25-1329 was modeled on a federal rule,
we look to federal decisions for guidance. As noted above,
§ 25-1329, when first adopted, was identical to a federal rule
of civil procedure. We have frequently said that because the
Nebraska Court Rules of Pleading in Civil Cases are mod-
eled after the Federal Rules of Civil Procedure, we may
look to federal decisions for guidance in interpreting the
Nebraska rules.93 We have interpreted a Nebraska criminal
procedure statute using federal decisions, because the stat-
ute was patterned on a federal rule of criminal procedure.94
We now articulate an equivalent principle: In interpreting
a Nebraska civil procedure statute modeled upon a federal
rule of civil procedure, we may look to federal decisions
for guidance.
Rule 59(e) has been applied in numerous proceedings
before federal district courts reviewing final agency deci-
sions.95 Thus, where a federal district court reviews an agency
decision and enters a judgment, and a party files a timely
motion under rule 59(e), the time for appeal runs from the date
of entry of the court’s disposing of the motion.96 Because the
Legislature modeled § 25-1329 on a federal rule that applied
to federal district courts, including proceedings where the fed-
eral court reviewed an agency decision, this suggests that it
93
E.g., Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94, 917
N.W.2d 821 (2018).
94
See State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
95
See, Maxmed Healthcare, Inc. v. Price, 860 F.3d 335 (5th Cir. 2017)
(Departmental Appeals Board Medicare Appeals Council decision); Bass
v. U.S. Dept. of Agriculture, 211 F.3d 959 (5th Cir. 2000) (Farm Service
Agency decision); Ashley v. Commissioner, Social Security Administration,
707 Fed. Appx. 939 (11th Cir. 2017) (Commissioner of Social Security
Administration decision); Leak v. Runyon, No. 95-1392, 1996 WL
386609 (4th Cir. July 11, 1996) (unpublished disposition listed in table of
“Decisions Without Published Opinions” at 91 F.3d 131 (4th Cir. 1996))
(U.S. Postal Service decision).
96
See Fed. R. App. P. 4(a)(4).
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intended § 25-1329 to apply to error proceedings commenced
in a Nebraska district court.
[16,17] And this leads us to the purpose of the statute,
which is obvious: The purpose of § 25-1329, like many other
provisions of Nebraska law, is to save parties from the delay
and expense associated with unnecessary appeals, which can
often be avoided by providing every reasonable opportunity
for a lower court to correct its own mistakes. As we have
said before, no court is required to persist in error, and, if
a court concludes that a former ruling was wrong, the court
may correct it at any time while the case is still in the court’s
control.97 Section 25-1329 enables a district court in an error
proceeding, a court which is no less susceptible of error than
any other, to give thoughtful consideration to an assertion that
it has made a mistake, without prejudicing the rights of the
party making the assertion. And it encourages a party to do so
in good faith, knowing that its right to appeal will not be lost
because of continued running of the time for appeal. We look
to the purpose of § 25-1329 and give it a reasonable construc-
tion which best achieves that purpose, rather than a construc-
tion which would defeat it.
[18] While we agree, as NSCS reminds us, that where a
statute has been judicially construed and that construction
has not evoked an amendment, it will be presumed that the
Legislature has acquiesced in the court’s determination of
the Legislature’s intent,98 the presumption fails here for three
reasons. First, and most important, we have not previously
construed the application of § 25-1329 specifically to an error
proceeding under §§ 25-1901 to 25-1908. Second, given the
presumption that the Legislature is familiar with our case law
regarding error proceedings, including our characterization of
the clear distinction between a petition in error and an appeal
97
See Pinnacle Enters. v. City of Papillion, 302 Neb. 297, 923 N.W.2d 372
(2019).
98
See State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
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and our repeated use of the term “judgment” to describe a
district court’s decision disposing of a petition in error, the
Legislature might well have not understood our decisions in
Goodman, Timmerman, and Hausmann as bearing on petitions
in error. Finally, NSCS’ argument in brief mainly relies on
decisions that predate the enactment of § 25-1329. The only
amendment to date, adopted in 2004, added a “springing”
effect to the terminating motions identified in § 25-1912(3),99
and was no doubt prompted by our decision in Macke v.
Pierce 100 regarding a motion for new trial.
[19,20] We conclude that a judgment entered by a district
court at the conclusion of an error proceeding pursuant to
§§ 25-1901 to 25-1908 is a “judgment” within the meaning of
§ 25-1329. It naturally follows that a motion to alter or amend
a judgment, which motion seeks a substantive alteration of a
judgment entered by a district court disposing of a petition in
error and which motion is filed within 10 days of the entry of
the judgment, will terminate the time for running of appeal
pursuant to § 25-1912(3). Consequently, we must reverse the
Court of Appeals’ summary dismissal.
4. Clearing “Procedural Minefield”
We now turn to McEwen’s request that, to use his metaphor,
we clear the “procedural minefield.”101 This is not something
that we undertake lightly.
Prior to our decision today, an anomalous situation already
existed. Where a district court acted as a trial court and entered
a judgment, a timely motion to alter or amend the judgment
terminated the time for taking an appeal.102 A similar statute
99
See 2004 Neb. Laws, L.B. 1207, §§ 3 to 5.
100
Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (2002) (superseded by
statute as stated in Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566
(2015)).
101
Supplemental brief for appellant at 7.
102
See § 25-1912(3) (Reissue 2016).
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accomplished the same result regarding a county court judg-
ment.103 For both this court and the Court of Appeals, our
appellate rules,104 which are consistent with statutory pro-
cedures governing such appeals,105 enabled us to entertain
motions for rehearing without jeopardizing a party’s ability to
pursue any subsequent appeals which might be available. Only
where a district court acted as an intermediate appellate court
did a party filing a motion to alter or amend a judgment do so
at his or her peril.
But after today’s decision, without reassessing Goodman,
Timmerman, and Hausmann, the procedural minefield would
still exist, with boundaries less clear than before. In the generic
or colloquial sense, some “appeals” to the district court would
be subject to § 25-1329, while others would not. Not only is
legislative acquiescence a legitimate concern, we must also
consider the doctrine of stare decisis.
[21-23] We have said that while the doctrine of stare decisis
is entitled to great weight, it is grounded in the public policy
that the law should be stable, fostering both equality and
predictability of treatment.106 And we have recognized that
overruling precedent is justified when the purpose is to elimi-
nate inconsistency.107 Thus, we said that remaining true to an
intrinsically sounder doctrine better serves the values of stare
decisis than following a more recently decided case incon-
sistent with the decisions that came before it.108 As the U.S.
Supreme Court has identified, some of the relevant factors in
deciding whether to adhere to the principle of stare decisis
include workability, the antiquity of the precedent, whether the
103
See Neb. Rev. Stat. § 25-2729(3) (Reissue 2016).
104
See § 2-102(F)(1) and Neb. Ct. R. App. P. § 2-113 (rev. 2012).
105
See Neb. Rev. Stat. §§ 25-1924 and 25-1926 (Reissue 2016).
106
See Heckman, supra note 66.
107
See id.
108
Id.
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decision was well reasoned, whether experience has revealed
the precedent’s shortcomings, and the reliance interests at
stake.109 The Court explained that “reliance interests are impor-
tant considerations in property and contract cases, where par-
ties may have acted in conformance with existing legal rules in
order to conduct transactions.”110
Here, reconciling our case law with the purpose of the
statute would eliminate the inconsistency in application of
§ 25-1329 and best achieve the obvious purpose of the stat-
ute. Not only would we eliminate inconsistency in the treat-
ment of appeals versus error proceedings, we would also
harmonize the opportunity for “rehearing” at all levels of
Nebraska’s court system. This would foster equality and
enhance predictability.
Turning to the factors identified by the U.S. Supreme
Court, we conclude that all weigh in favor of corrective
action. Maintaining a single area carved out from the appli-
cation of § 25-1329 has proved unworkable: It promoted a
procedural trap for parties and their counsel and, in its area of
operation, defeated the statutory purpose. Regarding antiquity
of the precedent, the earliest decision, in Goodman, dates back
only to 2007. While the rationale may have appeared sound
at the time Goodman was decided, inconsistency with other
statutory language quickly became apparent. The Timmerman
court acknowledged as much.111 And the language in Neb.
Rev. Stat. § 25-2733 (Reissue 2016) directly contradicts the
core holding of Goodman in the context of appeals from
county court to district court. Section 25-2733(1) specifies
that on appeal from the county court, the district court shall
“render a judgment which may affirm, affirm but modify, or
reverse the judgment or final order of the county court” and
109
See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 130 S. Ct.
876, 175 L. Ed. 2d 753 (2010).
110
Id., 558 U.S. at 365.
111
See Timmerman, supra note 5.
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that if the district court reverses, “it may enter judgment in
accordance with its findings or remand the case . . . for fur-
ther proceedings consistent with the judgment of the district
court.” (Emphasis supplied.) Section 25-2733(3) specifies that
the “judgment of the district court shall vacate the judgment
in the county court” and that “interest on the amount of the
judgment in the district court . . . shall run from the date
of entry of the [county court] judgment.” (Emphasis sup-
plied.) This language already existed in § 25-2733 in 2000,
when § 25-1329 was added to our statutes, and although
§ 25-2733 was amended in the same legislation,112 the refer-
ences to a “judgment” in the district court on appeal from
the county court remained unchanged. An unspoken premise
in Goodman was that a proceeding followed by an appeal
(or a series of appeals) results in one, and only one, judg-
ment. We conclude that the language of our appeals stat-
utes, read together, refutes that premise. In short, experience
has revealed our precedent’s shortcomings. And neither party
identifies, nor can we discern, any reliance interests that
would be affected.
[24] We therefore overrule our decision in Goodman 113 and
cases directly 114 or inferentially 115 relying upon it to the extent
they hold that § 25-1329 does not apply to a judgment of a
district court acting as an intermediate appellate court.
VI. CONCLUSION
[25] We conclude that McEwen’s alternative motion to
vacate qualified as a motion to alter or amend a judgment
within the meaning of § 25-1329. The summary dismissal of
McEwen’s appeal must be reversed. We recognize that upon
112
See 2000 Neb. Laws, L.B. 921, § 27.
113
Goodman, supra note 4.
114
See Timmerman, supra note 5.
115
See, Jacob, supra note 48; Capitol Construction, supra note 3; Hausmann,
supra note 12.
- 580 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 303 Neb. 552
reversing a decision of the Court of Appeals, we may con-
sider, as we deem appropriate, some or all of the assignments
of error that the Court of Appeals did not reach.116 However,
the Court of Appeals did not proceed past the initial jurisdic-
tional issue presented, and neither this court nor the Court of
Appeals has heard argument upon or meaningfully considered
the underlying merits of the appeal. We conclude that those
issues should be addressed by the Court of Appeals in the first
instance. The decision of the Court of Appeals is reversed,
and the cause is remanded to the Court of Appeals for fur-
ther proceedings.
R eversed and remanded for
further proceedings.
Miller-Lerman, J., not participating.
116
See Hausmann, supra note 12.