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Fidler v. Life Care Centers of America, Inc.

Supreme Court of Nebraska

November 30, 2018

Virginia Fidler and Keith Fidler, Appellees.
v.
Life Care Centers of America, Inc., doing business as Life care center of Elkhorn, et al., appellants.

         1. 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.

         2. __:__. 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.

         3. 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.

         4. 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.

         5. 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.

         6. __: __ . 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 appellate review.

         7. 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.

          Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Appeal dismissed.

          Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for appellants.

          Shayla Reed, of Reed Law Offices, P.C., L.L.O., for appellees.

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

          Per Curiam.

         INTRODUCTION

         After 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 here.

         BACKGROUND

         Virginia 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.

         Virginia 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.

         Because 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.

         On July 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.

         The 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 ...


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