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Glantz v. Daniel

Court of Appeals of Nebraska

July 30, 2013

Diane S. Glantz, appellant,
v.
Michelle Daniel, appellee.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law. which an appellate court resolves independently of the trial court.

2. Judgments: Injunction: Appeal and Error. A protection order is analogous to an injunction. Accordingly, the grant or denial of a protection order is reviewed de novo on the record.

3. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.

4. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues.

6. Courts: Judgments. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory.

7. Moot Question: Words and Phrases. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

8. Moot Question. As a general rule, a moot case is subject to summary dismissal. 9. Moot Question: Appeal and Error. Under certain circumstances, an appellate court may entertain the issues presented by a moot case when the claims presented involve a matter of great public interest or when other rights or liabilities may be affected by the case's determination.

10. ___: ___. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question [21 Neb.App. 90] presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.

11. Words and Phrases. As a general rule, in the construction of statutes, the word "shall" is considered mandatory and inconsistent with the idea of discretion.

12. Statutes: Intent: Words and Phrases. While the word "shall" may render a particular statutory provision mandatory in character, when the spirit and purpose of the legislation require that the word "shall" be construed as permissive rather than mandatory, such will be done.

13. Statutes. There is no universal test by which directory provisions of a statute may be distinguished from mandatory provisions.

14. ___. If a prescribed duty is essential to the main objective of a statute, the statute ordinarily is mandatory and a violation will invalidate subsequent proceedings under it. If the duty is not essential to accomplishing the principal purpose of the statute but is designed to ensure order and promptness in the proceeding, the statute ordinarily is directory and a violation will not invalidate subsequent proceedings unless prejudice is shown.

15. Criminal Law: Time. The 5-day time requirement specified in Neb. Rev. Stat. § 28-311.09(7) (Reissue 2008) for requesting a hearing is not essential to accomplishing the main objective of Nebraska's stalking and harassment statutes.

16. Criminal Law: Judgments: Time. The purpose of protecting stalking and harassment victims is accomplished by allowing a court to promptly enter an ex parte protection order upon the filing of a petition.

17. Criminal Law: Statutes. Nebraska's stalking and harassment statutes are given an objective construction, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis.

18. Criminal Law: Judgments. Under Nebraska's stalking and harassment statutes, the inquiry is whether a reasonable person would be seriously terrified, threatened, or intimidated by the perpetrator's conduct.

Appeal from the District Court for Lancaster County: Robert R. Otte, Judge.

Mark T. Bestul, of Legal Aid of Nebraska, for appellant.

No appearance for appellee.

Inbody, Chief Judge, and Irwin and Moore, ...


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