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McEwen v. Nebraska State College System

Supreme Court of Nebraska

July 12, 2019

Dr. Robert McEwen, appellant,
v.
Nebraska State College System, appellee.

         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. Statutes. The meaning of a statute is a question of law.

         3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.

         4. Rules of the Supreme Court: Appeal and Error. A petition for further review and supporting memorandum brief must specifically set forth and discuss any error assigned to the Court of Appeals.

         5. Courts: Judgments: Jurisdiction: Appeal and Error. A district court sitting as an appellate court has the same power to reconsider its orders, both inherently and under Neb. Rev. Stat. § 25-2001 (Reissue 2016), as it does when it is a court of original jurisdiction.

         6. Pleadings: Judgments. A determination as to whether a motion, however titled, should be deemed a motion to alter or amend a judgment depends upon the contents of the motion, not its title.

         7. Pleadings: Judgments: Time. In order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment, as required under Neb. Rev. Stat. § 25-1329 (Reissue 2016), and must seek substantive alteration of the judgment.

         8. Appeal and Error. A clear distinction exists in Nebraska between proceedings by petition in error and an appeal.

         9. Judgments: Final Orders: Appeal and Error. A petition in error in the district court to review a judgment or final order of an inferior tribunal is in its nature an independent proceeding having for its purpose [303 Neb. 553] the removal of the record from an inferior to a superior tribunal to determine if the judgment or final order entered is in accordance with the law.

         10. Courts: Appeal and Error. An error proceeding is distinct and independent, while the appeal is a mere continuation of the same cause in another court.

         11. Statutes. Statutory language is to be given its plain and ordinary meaning.

         12. Statutes: Intent. When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.

         13. Statutes: Intent: Appeal and Error. An appellate court must look to a statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.

         14. Statutes: Legislature: Presumptions: Judicial Construction. In detemining the meaning of a statute, the applicable rule is that when the Legislature enacts a law affecting an area which is already the subject of other statutes, it is presumed that it did so with full knowledge of the preexisting legislation and the decisions of the Nebraska Supreme Court construing and applying that legislation.

         15. Statutes: Appeal and Error. In interpreting a Nebraska civil procedure statute modeled upon a federal rule of civil procedure, an appellate court may look to federal decisions for guidance.

         16. Statutes: Intent: Appeal and Error. The purpose of Neb. Rev. Stat. § 25-1329 (Reissue 2016), like many other provisions of Nebraska law, is to save parties from the delay and expense associated with unnecessary appeals, which can often be avoided by providing every reasonable opportunity for a lower court to correct its own mistakes.

         17. Courts: Judgments: Time. No court is required to persist in error, and, if a court concludes that a former ruling was wrong, the court may correct it at any time while the case is still in the court's control.

         18. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent.

         19. Judgments: Words and Phrases: Appeal and Error. A judgment entered by a district court at the conclusion of an error proceeding pursuant to Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue 2016) is a "judgment" within the meaning of Neb. Rev. Stat. § 25-1329 (Reissue 2016).

         [303 Neb. 554] 20. Judgments: Pleadings: Time: Appeal and Error. A motion to alter or amend a judgment, which motion seeks a substantive alteration of a judgment entered by a district court disposing of a petition in error and which motion is filed within 10 days of the entry of the judgment, will terminate the time for running of appeal pursuant to Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2018).

         21. 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.

         22. Courts: Appeal and Error. Overruling precedent is justified when the purpose is to eliminate inconsistency.

         23.___:.___. Some of the relevant factors in deciding whether to adhere to the principle of stare decisis include workability, the antiquity of the precedent, whether the decision was well reasoned, whether experience has revealed the precedent's shortcomings, and the reliance interests at stake.

         24. Courts: Case Overruled: Appeal and Error. The Nebraska Supreme Court's decision in Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26');">742 N.W.2d 26 (2007), and cases relying upon it are overruled to the extent they hold that Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not apply to a judgment of a district court acting as an intermediate appellate court.

         25. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.

          Petition for further review from the Court of Appeals, Inbody, Riedmann, and Arterburn, Judges, on appeal thereto from the District Court for Dawes County, Derek C. Weimer, Judge.

          Howard P. Olsen, Jr., and Adam A. Hoesing, of Simmons Olsen Law Firm, PC, L.L.O., for appellant.

          George E. Martin III and Leigh Campbell Joyce, of Baird Holm, L.L.P, for appellee.

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

          [303 Neb. 555] CASSEL, J.

         I. INTRODUCTION

         In a series of decisions involving appeals, this court determined that a motion to alter or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not apply to a decision of a district court acting as an intermediate appellate court. Thus, in those prior decisions, the motion was held not to terminate the time for appeal to a higher court.[1]The question presented here is whether, given a longstanding distinction between appeals and error proceedings, § 25-1329 applies to a district court's judgment disposing of a petition in error.[2] For numerous reasons, we conclude that it does. And because we conclude that the original reasoning was incomplete and that doing otherwise would exacerbate a "procedural minefield," we overrule several previous decisions to the extent that they held § 25-1329 inapplicable to judgments of a district court acting as an intermediate appellate court. We therefore reverse the Nebraska Court of Appeals' summary dismissal of this appeal and remand the cause for further proceedings.

         II. BACKGROUND

         Dr. Robert McEwen filed a petition in error in the district court for Dawes County, Nebraska, against the Nebraska State College System (NSCS), a system of three state colleges in Nebraska. He alleged that he was wrongfully terminated from his position as a tenured professor at Chadron State College.

         Neither party disputes that the petition in error was timely filed. Responding to the petition in error, NSCS' answer admitted that McEwen was discharged on March 16, 2016, that McEwen timely requested an additional hearing before NSCS' board of trustees under a provision of the collective bargaining agreement, and that on April 18, NSCS' chancellor [303 Neb. 556] denied the additional hearing, thereby finalizing the discharge. McEwen's petition was filed on May 17. District court proceedings followed.

         By a judgment styled as a memorandum order, the district court "overruled" his petition on March 31, 2017 (March judgment).

         Exactly 10 days later, on April 10, 2017, McEwen moved for a new trial or, in the alternative, for an order vacating the March judgment. The alternative motion stated that it was based on Neb. Rev. Stat. § 25-2001 (Reissue 2016).

         After a hearing, the district court overruled both aspects of the motion, doing so by an order entered on May 25, 2017 (May order). Because the court had not conducted a trial and reviewed only a transcript of the administrative proceedings, it concluded that a motion for new trial was not proper. Turning to McEwen's alternative motion to vacate judgment, the court explained that it had made a mistake of fact regarding the presence of an individual at an administrative hearing. But the court concluded that the individual's presence was not the "determining fact" in the court's conclusions regarding the "' 17.3'" issue, referring to a section of a collective bargaining agreement. Thus, the court did not change its decision regarding the merits of McEwen's petition in error.

         Within 30 days after the May order, McEwen filed a notice of appeal. In case No. A-17-638, the Court of Appeals summarily dismissed the appeal for lack of jurisdiction. The court's summary order explained that McEwen's motion for new trial did not "toll" the time to file a notice of appeal and that McEwen's notice of appeal was not timely filed.

         McEwen moved for rehearing in the Court of Appeals. He argued that the May order was itself a final order. He premised this argument upon § 25-2001 and this court's decision in Capitol Construction v. Skinner[3] Notably, McEwen [303 Neb. 557] discussed two of our cases, Goodman v. City of Omaha[4] and Timmerman v. Neth, [5] regarding the applicability of a motion to alter or amend a judgment[6] where a district court acts as an intermediate appellate court. Based on this case law, McEwen conceded, as he did at oral argument before this court, that his motion to vacate did not act as a motion to alter or amend the judgment, which would have terminated the running of the appeal time.

         By a summary order in case No. A-17-638, the Court of Appeals denied rehearing. The court explained that McEwen's motion to vacate did not "toll" the time to appeal from the March judgment. The court added, "Accordingly, by the time the district court entered [the May] order denying the motion to vacate, [McEwen] could only appeal from that order. However, [McEwen's] brief on appeal argues only that the district court erred by denying his petition in error in the March [judgment]." Thus, the Court of Appeals concluded that it lacked jurisdiction to consider the merits of the March judgment and left in place the dismissal of the appeal from the May order.

         McEwen timely petitioned for further review, which we granted.[7]

         After oral argument in this court, we requested supplemental briefing by the parties addressing whether, in light of the distinction traditionally recognized between petitions in error and appeals created by various statutes, the Legislature intended for motions to alter or amend a judgment under § 25-1329 to apply to judgments entered in error proceedings and, if so, the proper application of that statute to the case before us. The parties promptly submitted supplemental briefs, which we have considered.

         [303 Neb. 558] III. ASSIGNMENTS OF ERROR

         McEwen assigns that the Court of Appeals erred in (1) dismissing his appeal for lack of jurisdiction and (2) overruling his subsequent motion for rehearing.

         IV. STANDARD OF REVIEW

         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.[8]

         The meaning of a statute is a question of law.[9]

         V. ANALYSIS

         The Court of Appeals denied McEwen's motion for rehearing, basing its denial on Capitol Construction v. Skinner.[10]No doubt relying on prior decisions of this court, the court did not consider whether § 25-1329 affected the time for appeal from the March judgment. And neither party argued that question to the Court of Appeals. But that matters not. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.[11] If an alternative basis supported jurisdiction, the Court of Appeals was bound to apply it unless it was foreclosed by existing precedent from this court.[12] Here, the Court of Appeals quite reasonably concluded that Capitol Construction dictated that it lacked jurisdiction of McEwen's appeal.

         1. McEwen's Primary Argument

         On further review, McEwen relies primarily on the same argument he presented to the Court of Appeals in support of [303 Neb. 559] rehearing there-that the district court's order overruling his alternative motion to vacate was itself a final, appealable order under Capitol Construction.

         Before turning to that argument, we note that on further review, McEwen has abandoned his argument based on his motion for new trial. The Court of Appeals rejected that argument, and in McEwen's brief in support of his petition for further review, he neither assigns error nor presents argument addressing the motion for new trial. It is well established that a petition for further review and supporting memorandum brief must specifically set forth and discuss any error assigned to the Court of Appeals.[13] Therefore, we do not consider it.

         Regarding McEwen's motion to vacate, both his argument and the Court of Appeals' summary disposition rely upon our decision in Capitol Construction, which we first summarize and then apply.

         (a) Capitol Construction

         Capitol Construction was an appeal from county court to district court, where the district court dismissed the appeal for lack of progression after the defendants, who brought the appeal, failed to reply to a progression letter.[14] But the progression letter was sent only to the defendants' trial counsel, who failed to either respond or forward the notice to appellate counsel.

         Within 10 days of the dismissal, the defendants, through their appellate counsel, filed a motion to reinstate the appeal. The district court denied the motion, and the defendants appealed to the Court of Appeals. This appeal was filed more than 30 days after the dismissal, but within 30 days of the denial of their motion to reinstate.

         Before the Court of Appeals, the defendants sought review of the district court's denial of their motion to reinstate. The [303 Neb. 560] Court of Appeals dismissed the appeal as untimely, [15] and we granted further review.

         In analyzing the jurisdictional question, we first reiterated our holding in State v. Hausmann, [16] that a district court sitting as an appellate court has the same power to reconsider its orders, both inherently and under § 25-2001, as it does when it is a court of original jurisdiction.[17]

         We then said that "an order denying a motion to vacate or modify a final order is itself a final, appealable order."[18] But we reasoned the Court of Appeals had jurisdiction, because "[the] later order [was] based upon grounds that [made] it independently final and appealable and the merits of that order [were] the issue raised on appeal."[19] Although it was not necessary to our decision in Capitol Construction, we observed that the Court of Appeals did not have jurisdiction to consider an appeal challenging the merits of the earlier, progression-based dismissal order. We then recited the familiar proposition that a motion for reconsideration does not toll the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment.[20]

         (b) Not Independently Final and Appealable

         Accepting for the moment the reasoning of Capitol Construction to the extent that that decision implicitly relied on Goodman, Timmerman, and Hausmann regarding § 25-1329, McEwen's argument overlooked an important distinction: There [303 Neb. 561] was no independent basis for appeal from McEwen's alternative motion to vacate. Although the district court acknowledged a factual misstatement, it did not modify its judgment. There was no intervening new matter, as there was in Capitol Construction. On appeal to the Court of Appeals, McEwen's attack ran only to the March judgment. As he stated in his original brief, "The errors assigned relate to [McEwen's] rights under Section 17.3 of the [collective bargaining agreement]."[21]The May order was not based upon grounds that made it independently final and appealable, and the merits of that order were not the issue raised on appeal.

         2. Motions to Alter or Amend in Appeals

         It follows that unless McEwen's alternative motion to vacate qualified as a motion to alter or amend a judgment pursuant to § 25-1329, his motion did not terminate the time for taking an appeal from the March judgment and his appeal from the May order could not circumvent the outcome that followed. Until we requested supplemental briefing, McEwen took the position that § 25-1329 did not apply. Now, his position has shifted.

         Before turning to the specific question that we posed to the parties, we briefly recall the development of a motion to alter or amend a judgment created in 2000, [22] which is codified as § 25-1329, and our case law determining that it does not apply to an appellate decision of a district court acting as an intermediate court of appeals.

         (a) State v. Bellamy

         In State v. Bellamy, [23] we acknowledged a statute had been amended to provide that the running of the time for filing a [303 Neb. 562] notice of appeal would be terminated not only by a timely motion for new trial[24] or by a timely motion to set aside a verdict or judgment, [25] but, also, by a timely motion to alter or amend a judgment under § 25-1329. This amendment[26] occurred in the same legislation that introduced a motion to alter or amend a judgment into Nebraska's civil procedure statutes.

         Two important lessons from Bellamy suggest that McEwen's motion might qualify as a motion to alter or amend. First, a determination as to whether a motion, however titled, should be deemed a motion to alter or amend a judgment depends upon the contents of the motion, not its title.[27] This remains true.[28] Thus, it matters not that McEwen's motion was titled as an alternative motion to vacate. Second, in order to qualify for treatment as a motion to alter or amend a judgment, a motion must be filed no later than 10 days after the entry of judgment, as required under § 25-1329, and must seek substantive alteration of the judgment.[29] McEwen's alternative motion to vacate was filed within 10 days of, and sought substantive alteration of, the March judgment. Thus, his motion seemingly met both of the Bellamy criteria.

         In Bellamy, we implicitly recognized that § 25-1329 was modeled on Fed.R.Civ.P. 59(e) as it then existed.[30] We cited numerous federal cases holding that a motion for reconsideration, if filed within 10 days of the entry of judgment, is the functional equivalent of a motion to alter or amend a judgment brought pursuant to rule 59(e).

         [303 Neb. 563] But in Bellamy, we did not address whether § 25-1329 applies to a district court's review of a judgment or final order of a lower court or tribunal. Nor did we examine, given that § 25-1329 was modeled on a federal rule which might have prompted us to consider federal interpretive decisions, [31] whether rule 59(e) has been applied in cases where a federal district court reviews the decision of a federal agency.

         (b) Inapplicable to Appeals

         We were soon forced to confront whether § 25-1329 applies where an appeal is taken to the district court. In several cases, we determined that it ...


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