Great Northern Ins. Co. v. Transit Auth. of Omaha , 305 Neb. 609 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/22/2020 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 305 Neb. 609
Great Northern Insurance Company, an Indiana
corporation, appellee, v. Transit Authority of
the City of Omaha, a governmental subdivision
of the State of Nebraska individually and
doing business as Metro Area Transit,
appellant, and Jessica Johnson,
an individual, appellee.
___ N.W.2d ___
Filed April 17, 2020. No. S-19-913.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that 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: Time. Statutes covering substantive matters in effect at the
time of the transaction or event govern, not later enacted statutes. But
where there has been an amendment to a statute which was a procedural
change and not a substantive change, upon the effective date of the
amendment, it is binding upon a tribunal.
3. ____: ____. Procedural amendments to statutes are ordinarily applicable
to pending cases, while substantive amendments are not.
4. Statutes: Words and Phrases. A substantive amendment is one that
creates a right or remedy that did not previously exist and which, but for
the creation of the substantive right, would not entitle one to recover. A
procedural amendment, on the other hand, simply changes the method
by which an already existing right is exercised.
Petition for further review from the Court of Appeals, on
appeal thereto from the District Court for Douglas County,
Thomas A. Otepka, Judge. Judgment of Court of Appeals
reversed and remanded for further proceedings.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 305 Neb. 609
Robert M. Schartz and Timothy Mulliner, of Abrahams,
Kaslow & Cassman, L.L.P., for appellant.
Matthew D. Hammes, of Locher, Pavelka, Dostal, Braddy &
Hammes, and Cheri MacArthur, of Cozen O’Connor, for appel-
lee Great Northern Insurance Company.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The Transit Authority of the City of Omaha, doing business
as Metro Area Transit (Metro), moved for summary judg-
ment based on sovereign immunity in a suit brought by Great
Northern Insurance Company (Great Northern). The district
court denied this motion, and Metro appealed. The Nebraska
Court of Appeals dismissed the appeal for lack of jurisdiction,
explaining that the denial of a motion for summary judgment
is interlocutory and not a final order. However, after the order
denying summary judgment was entered but before the 30-day
period to file a timely appeal expired and before Metro filed
its notice of appeal, Neb. Rev. Stat. § 25-1902 (Reissue 2016)
was amended to add denials of summary judgment based on
a claim of sovereign immunity to the definition of a final
order. 1 Metro petitioned for further review, and we granted
the petition.
BACKGROUND
The underlying claim, not at issue here, is a subrogation
action in which Great Northern is seeking compensation from
Metro under the Political Subdivisions Tort Claims Act. 2 In the
proceedings below, Metro challenged Great Northern’s compli-
ance with the notice requirements of the Political Subdivisions
Tort Claims Act.
1
See 2019 Neb. Laws, L.B. 179, § 1.
2
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 305 Neb. 609
Metro moved for summary judgment based on sovereign
immunity. Metro claimed that Great Northern did not properly
comply with the Political Subdivisions Tort Claims Act and
that the failure to comply with the notice requirements meant
that Metro never waived sovereign immunity. On August 23,
2019, the district court denied Metro’s motion on the ground
that Metro was estopped from asserting immunity after Metro’s
outside counsel responded to Great Northern’s notice. On
September 3, Metro moved to reconsider. The motion was
denied, and Metro filed an appeal on September 19. Metro’s
notice of appeal stated that it was appealing the original order
denying summary judgment. On October 11, the Court of
Appeals summarily dismissed the appeal, explaining that a
denial of a motion for summary judgment is interlocutory and
not a final order pursuant to § 25-1902.
However, § 25-1902 was amended effective September 1,
2019. 3 This change added language specifying that an order
denying summary judgment when the motion is based on sov-
ereign immunity is a final order. The relevant sections were
amended to read:
(1) The following are final orders which may be
vacated, modified, or reversed:
....
(d) An order denying a motion for summary judgment
when such motion is based on the assertion of sovereign
immunity or the immunity of a government official.
(2) An order under subdivision (1)(d) of this section
may be appealed pursuant to section 25-1912 within thirty
days after the entry of such order or within thirty days
after the entry of judgment. 4
Because the change to § 25-1902 took effect before the appeal
was filed, but after the order itself was issued, the question pre-
sented is which version of the final order statute should apply.
3
Neb. Rev. Stat. § 25-1902 (Supp. 2019).
4
See id.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 305 Neb. 609
ASSIGNMENT OF ERROR
Metro argues that the Court of Appeals erred by failing to
recognize that the denial of Metro’s motion for summary judg-
ment asserting sovereign immunity was a final order under
§ 25-1902 as of September 1, 2019.
STANDARD OF REVIEW
[1] A jurisdictional question that 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 inde-
pendent of the lower court’s decision. 5
ANALYSIS
The sole issue in this case is whether the Court of Appeals
had jurisdiction when the notice of appeal was filed on
September 19, 2019. We find that the Court of Appeals did
have jurisdiction when the notice of appeal was filed because
the amended version of § 25-1902 had taken effect.
In order to vest the court with appellate jurisdiction, the
party seeking the appeal must comply with several statu-
tory requirements. Section 25-1902 provides the definition
of what is a final order, and Neb. Rev. Stat § 25-1912 (Cum.
Supp. 2018) provides the methodology for how an appeal is
perfected. In interpreting the requirements of § 25-1912, we
have said that “[s]ection 25-1912 sets forth the only method
by which a party may invoke the jurisdiction of an appellate
court . . . .” 6 There are three steps required to invest the court
with jurisdiction: (1) there must be a judgment or final order
entered by the court from which the appeal is taken, 7 (2) a
party must timely file a notice of appeal, 8 and (3) the appealing
5
Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019).
6
State v. Schmailzl, 248 Neb. 314, 316, 534 N.W.2d 743, 745 (1995).
7
See, § 25-1902 (Supp. 2019); Fritsch v. Hilton Land & Cattle Co., 245
Neb. 469, 513 N.W.2d 534 (1994).
8
See, § 25-1912; Green v. Seiffert, supra note 5.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 305 Neb. 609
party must pay the docket fee to the clerk of the court or file
in forma pauperis. 9
[2,3] The order entered on August 23, 2019, did not meet the
definition of a final order when entered. However, the amend-
ment to § 25-1902 took effect before Metro’s 30-day window
to appeal had expired. It is a well-established principle that
statutes covering substantive matters in effect at the time of
the transaction or event govern, not later enacted statutes. 10
But where there has been an amendment to a statute which
was a procedural change and not a substantive change, upon
the effective date of the amendment, it is binding upon a tri-
bunal. 11 Thus, procedural amendments to statutes are ordinarily
applicable to pending cases, while substantive amendments
are not. 12
[4] We have explained that a substantive amendment is one
that creates a right or remedy that did not previously exist and
which, but for the creation of the substantive right, would not
entitle one to recover. 13 A procedural amendment, on the other
hand, simply changes the method by which an already existing
right is exercised. 14
At issue in the larger case is the substantive question of
whether Metro waived sovereign immunity under the Political
Subdivisions Tort Claims Act. The change to § 25-1902 does
not affect the substance of that claim. Rather, it changes the
procedure governing when Metro can request review. By mak-
ing the denial of a claim of sovereign immunity a final order,
the amendment allows a sovereign to file an interlocutory
appeal within 30 days of the order instead of waiting until the
9
See § 25-1912.
10
Dragon v. Cheesecake Factory, 300 Neb. 548, 915 N.W.2d 418 (2018).
11
Id.
12
Id.
13
Id.
14
Id.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
Cite as 305 Neb. 609
final judgment to seek review of the lower court’s decision on
sovereign immunity. We hold that the amendment to § 25-1902
which took effect September 1, 2019, was a procedural change
that was binding upon its effective date.
Because Metro filed its notice of appeal after the effective
date of the amendment to § 25-1902, the amendment governed
whether that notice of appeal succeeded in divesting the lower
court of jurisdiction and in bringing the matter of the lower
court’s ruling on sovereign immunity to the Court of Appeals.
Subsection (2) of the amended version of § 25-1902 provides
that any order that meets the definition under subsection (1)
(d) may be appealed pursuant to § 25-1912. The order subject
to Metro’s notice of appeal meets that definition. Thus, the
amended language of § 25-1902 allowed for Metro to file a
notice of appeal based on the August 23, 2019, order. 15
The amended change to § 25-1902 allows for the appeal
from an order denying summary judgment based on a claim
of sovereign immunity as long as the appealing party com-
plied with the requirements of § 25-1912. Metro has otherwise
complied with the requirements for perfecting an appeal under
§ 25-1912. As such, the Court of Appeals erred in denying the
appeal for a lack of jurisdiction.
CONCLUSION
We find that the Court of Appeals had jurisdiction pursuant
to § 25-1902 (Supp. 2019), which was effective September 1,
2019. We reverse the dismissal of the appeal by the Court of
Appeals and remand the cause for further proceedings.
Reversed and remanded for
further proceedings.
15
See § 25-1902(2) (Supp. 2019).