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Weatherly v. Cochran

Supreme Court of Nebraska

October 26, 2018

Michelle Weatherly, appellee,
Luke J. Cochran, appellant.

         1. Moot Question: Jurisdiction: Appeal and Error. Mootness does not prevent appellate jurisdiction. But, because mootness is a justifiability 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.

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

         3. Jurisdiction. An actual case or controversy is necessary for the exercise of judicial power.

         4. 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.

         5. Judgments: Time. Once a protection order has expired, the respondent is no longer affected by it.

         6. 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.

         7. Moot Question: Words and Phrases. In determining whether the public interest exception should be invoked, the court considers the public or private nature of the question presented, the desirability of an authoritative adjudication for future guidance of public officials, and the likelihood of future recurrence of the same or a similar problem.

         8. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to [301 Neb. 427] interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous.

         9. Statutes: Legislature: Intent. The court, in discerning the meaning of a statute, should determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

         10. Statutes: Words and Phrases. The meaning of "appear" in the context of Neb. Rev. Stat. § 28-311.09(8)(b) (Reissue 2016) includes both personal appearances by the respondent and appearances through counsel.

          Appeal from the District Court for Douglas County: John E. Huber, County Judge. Appeal dismissed.

          Diana J. Vogt, of Sherrets, Bruno & Vogt, L.L.C., for appellant.

          William H. Selde, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Freudenberg, J.


         Luke J. Cochran appeals the issuance of a harassment protection order and denial of a motion to vacate the ex parte harassment protection order against him. During a show cause hearing, the district court stated that because Cochran appeared through counsel rather than appearing in person, the ex parte harassment protection order would be automatically extended for 1 year. However, the court proceeded to allow the petitioner, Michelle Weatherly, to testify and allowed Cochran's counsel to cross-examine Weatherly. After the hearing, the district court found that Weatherly had presented evidence sufficient to extend the harassment protection order for 1 year, to expire on October 5, 2018. The central issues raised on appeal are (1) whether Weatherly was entitled to a harassment protection order under the terms of Neb. Rev. Stat. § 28-311.09 [301 Neb. 428] (Reissue 2016) and (2) whether a respondent against whom a harassment protection order is sought must appear in person rather than through counsel. We find that the appeal is moot, but apply the public interest exception to mootness to address the second inquiry.


         Weatherly and Cochran were involved as partners in a roofing contractor business. Weatherly and Cochran worked together in a building owned by Cochran and leased to the business.

         In July 2017, Cochran gave notice of his intent to resign his position at the roofing contractor business. Believing that Cochran would potentially depart negatively, Weatherly had an off-duty officer present for the removal of his belongings on his final day of employment.

         When Cochran arrived at the office to remove his belongings, he met with Weatherly in her office. During this meeting, Cochran allegedly made threatening statements. Specifically, Cochran purportedly stated, '"Do you recall what happened to . . . Roofing? It's rumored that that was a business deal gone bad and that person was murdered because of that. I hope that doesn't happen to us.'" Although Weatherly noted that the environment was hostile throughout the rest of the day, Weatherly continued to talk to Cochran.

         Later, after Cochran left the building, the off-duty officer suggested that Weatherly should go into Cochran's office to retrieve company documents and property before the locksmiths came to change the locks for the building. Upon entering Cochran's office, Weatherly and the officer found a handgun in Cochran's desk drawer. Weatherly subsequently told the off-duty officer that Cochran was a convicted felon, and the officer took possession of the weapon to ensure that an on-duty officer could seize it.

         While Weatherly was waiting for the arrival of the on-duty officer, Cochran returned and attempted to enter the building. [301 Neb. 429] When Cochran was stopped from entering the building by the off-duty officer, Weatherly alleged that Cochran made "a threatening gesture" that she interpreted to insinuate that she was '"going to get it.'" The actual gesture was not further described in the record.

         On August 2, 2017, Weatherly filled out the application for the protection order. However, the application was not filed with the court until October 5. An ex parte harassment protection order was granted in favor of Weatherly, and a ...

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