Virginia Fidler and Keith Fidler, Appellees.
Life Care Centers of America, Inc., doing business as Life care center of Elkhorn, et al., appellants.
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.
__:__. Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the appeal.
Final Orders: Appeal and Error. An order is final for
purposes of appeal under Neb. Rev. Stat. § 25-1902
(Reissue 2016) if it affects a substantial right and (1)
determines the action and prevents a judgment, (2) is made
during a special proceeding, or (3) is made on summary
application in an action after judgment is rendered.
Final Orders: Motions to Dismiss: Appeal and Error. There is
no blanket rule that every order vacating a dismissal and
reinstating a case is final and appealable; rather, the
statutory criteria of Neb. Rev. Stat. § 25-1902 (Reissue
2016) must be applied to determine whether the order appealed
from is final.
Final Orders: Appeal and Error. Broadly stated, an order
affects a substantial right if it affects the subject matter
of the litigation, such as diminishing a claim or defense
that was available to the appellant prior to the order from
which he or she is appealing.
__ . Whether an order affects a substantial right depends on
whether it affects with finality the rights of the parties in
the subject matter. It also depends on whether the right
could otherwise effectively be vindicated. An order affects a
substantial right when the right would [301 Neb. 725] be
significantly undermined or irrevocably lost by postponing
Final Orders: Case Disapproved: Appeal and Error. The
Nebraska Supreme Court's decision in Jarrett v.
Eichler, 244 Neb. 310, 506 N.W.2d 682');">506 N.W.2d 682 (1993), is
disapproved to the extent it held that the order appealed
from affected a substantial right by destroying a defense in
a future hypothetical action. The decisions in Gutchewsky
v. Ready Mixed Concrete Co., 219 Neb. 803, 366 N.W.2d
751 (1985); A. Hirsh, Inc. v. National Hair Co., 210
Neb. 397, 315 N.W.2d 236');">315 N.W.2d 236 (1982); and Fanning v.
Richards, 193 Neb. 431, 227 N.W.2d 595');">227 N.W.2d 595 (1975), are
disapproved to the extent that they implicitly rely upon that
same reasoning in Jarrett.
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Appeal dismissed.
E. Novotny and Cathy S. Trent-Vilim, of Lamson, Dugan &
Murray, L.L.P., for appellants.
Reed, of Reed Law Offices, P.C., L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
the district court administratively dismissed a negligence
action for failure to timely submit a proposed scheduling
order, it granted a motion to reinstate the case. This appeal
followed. Because we conclude that the district court's
reinstatement order was not a final, appealable order, we
dismiss the appeal. In doing so, we disapprove of several
decisions to the extent that they conflict with our reasoning
Fidler resided at a skilled nursing and rehabilitation
facility in Elkhorn, Nebraska, from September 16 to 21. 2013,
while recovering from an infection. During Virginia's
[301 Neb. 726] stay at the facility, a large blood clot
developed on her left lower leg which thereafter required
hospitalization and emergency surgery.
and Keith Fidler brought this professional and medical
malpractice action against Life Care Centers of America,
Inc., doing business as Life Care Center of Elkhorn, and
related entities (collectively Life Care Centers) arising
from allegedly negligent conduct. The Fidlers claimed that
Virginia suffered permanent nerve damage and functional loss
in her leg due to a delay of treatment occasioned by Life
Care Centers' negligence. The Fidlers filed the action on
September 8, 2015.
no proposed scheduling order had been filed, a "Notice
of Intent to Dismiss" was filed by the district court
administrator on January 31, 2017. The notice stated it was
issued "[p]ursuant to Rule 4-10" and was "sent
to inform each party that, within thirty (30) days from the
date of this notice, you must submit a Proposed Scheduling
Order (PSO) indicating" various items reflecting the
status of the case or the case would be dismissed. The notice
also provided that if the case were so dismissed,
"[p]ursuant to Rule 4-10(C), . . . the judge to whom the
case is assigned has the discretion to reinstate the
case." On March 6, the case was administratively
dismissed for lack of prosecution.
17, 2017, the Fidlers filed a motion to set aside the order
of dismissal and reinstate the case. They attached to their
motion an affidavit of counsel setting forth a detailed
accounting of the activity that had occurred in the case,
designed to show that the parties had been actively
prosecuting the case. The affidavit of the Fidlers'
counsel also stated that due to an error, the 30-day deadline
contained in the notice was not entered on the calendar.
district court conducted an evidentiary hearing on August 8,
2017, at which the affidavit of the Fidlers' counsel was
received. Following briefing by both parties, the court
entered an order on November 16 reinstating the case. The
[301 Neb. 727] court noted that the Fidlers presented an
affidavit showing they were properly pursuing prosecution of
the case and that they submitted a proposed scheduling order.
The court found good cause to reinstate the case and further
stated that "dismissal of this matter would be an
extreme remedy and would be a miscarriage of justice."
The court also stated that reinstatement of the case ...