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Heckman v. Marchio

Supreme Court of Nebraska

April 21, 2017

Bryan R. Heckman, appellee,
v.
Regina M. Marchio, appellant.

         1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.

         2. Courts: Jurisdiction: Legislature: Appeal and Error. In order for the Nebraska Supreme Court to have jurisdiction over an appeal, appellate jurisdiction must be specifically provided by the Legislature.

         3. Appeal and Error. The right of appeal in Nebraska is purely statutory.

         4. ___. Unless a statute provides for an appeal, such right does not exist.

         5. Constitutional Law: Jurisdiction: Appeal and Error. Except in those cases wherein original jurisdiction is specifically conferred by Neb. Const, art. V, § 2, the Nebraska Supreme Court exercises appellate jurisdiction.

         6. Constitutional Law. Nebraska's separation of powers clause prohibits the three governmental branches from exercising the duties and prerogatives of another branch.

         7. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.

         8. Courts: Jurisdiction: Legislature: Statutes: Appeal and Error. Through the enactment of statutes, the Legislature has prescribed when a court may exercise appellate jurisdiction; the judicial branch may not circumvent such statutory authorization.

         9. Courts: Legislature: Statutes: Time: Appeal and Error. Just as courts have no power to extend the time set by the Legislature for taking an appeal, courts have no power to allow an appeal where it is not authorized by statute.

         10. 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.

         [296 Neb. 459] 11. Appeal and Error. Remaining true to an intrinsically sounder doctrine better serves the values of stare decisis than following a more recently decided case inconsistent with the decisions that came before it.

         12. Jurisdiction: Final Orders: Case Overruled. The Nebraska Supreme Court's decision in Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430');">560 N.W.2d 430 (1997), and cases relying upon it are overruled to the extent that they authorized appellate jurisdiction in the absence of a judgment or final order and without specific statutory authorization.

         Appeal from the District Court for Dodge County: Geoffrey C. Hall, Judge. Appeal dismissed.

          Jeremy Jorgenson and David J. Reed, of Jorgenson, Reed & VandenBosch, L.L.C., for appellant.

          Julie Fowler and Brendan M. Kelly, of Fowler & Kelly Law, L.L.R, for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.

         INTRODUCTION

         This is an appeal from an order disqualifying counsel in a civil case. Twenty years ago, this court "adopt[ed] the rule articulated in [a Massachusetts decision[1]]" to allow for an immediate appeal from a nonfmal order such as this.[2] In doing so, we improperly exceeded our statutory and constitutional authority. Because an appeal from the order at issue is not statutorily authorized, we dismiss the appeal.

         BACKGROUND

         Bryan R. Heckman filed a complaint against Regina M. Marchio, seeking to establish paternity, custody, and support of a minor child born to the parties. Sometime thereafter, he moved to disqualify Marchio's attorney. Following a hearing [296 Neb. 460] on the motion, the district court entered an order granting the motion to disqualify Marchio's attorney. Marchio timely filed a motion to reconsider, which the court denied. Marchio filed a purported appeal from that order, and we moved the case to our docket.[3]

         ASSIGNMENTS OF ERROR

         Marchio assigns seven errors, all of which relate to the district court's disqualification of her privately retained legal counsel.

         STANDARD OF REVIEW

         A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.[4]

         ANALYSIS

         Marchio asserts that the order of disqualification is appealable under Richardson v. Griffiths.[5] As explained below, we exceeded our statutory and constitutional authority in adopting the so-called Richardson exception to the final order requirement. In doing so, we improperly circumvented our final order statute[6] and improperly expanded our own jurisdiction.

         Foundation and Constitutional Underpinnings for Appellate Jurisdiction

         Recently, we stated that in order for this court to have jurisdiction over an appeal, appellate jurisdiction must be specifically provided by the Legislature.[7] This fundamental [296 Neb. 461] principle was not new. In 1873, this court stated that "no appeal exists except by authority of statute"[8] and that "appeals do not exist by any right other than by statute."[9] Over and over, we have iterated that the right of appeal in Nebraska is "purely statutory."[10] In other words, unless a ...


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