Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/27/2019 12:06 AM CST
- 212 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
Aubrie Green, appellant, v.
Bryce Seiffert, appellee.
___ N.W.2d ___
Filed October 4, 2019. No. S-18-1125.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that 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. Jurisdiction: Time: Notice: Appeal and Error. Under Neb. Rev. Stat.
§ 25-1912 (Cum. Supp. 2018), to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.
3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Appeal dismissed.
Adolfo Daniel Reynaga, of Legal Aid of Nebraska, for
appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After the district court dismissed Aubrie Green’s petition
for renewal of a domestic abuse protection order, Green filed
a motion asking the court to vacate the order of dismissal. The
court denied that motion, and Green filed this appeal. Green
- 213 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
acknowledges that because her notice of appeal was filed more
than 30 days after the initial order dismissing the petition
and because her motion to vacate did not extend or suspend
the statutory deadline for filing an appeal, she did not timely
appeal the order dismissing her petition. Green maintains, however, that we have jurisdiction to review the order denying her
motion to vacate.
We disagree. While an order denying a motion to vacate
or modify is appealable if it is based on grounds that make it
independently final and appealable, Green’s motion to vacate
merely contended that the order she sought to vacate was
erroneous. Because we do not have jurisdiction to review the
denial of such a motion, we must dismiss the appeal.
BACKGROUND
Initial Domestic Abuse Protection
Order and Request to Renew.
On August 31, 2017, Green filed a petition and affidavit
requesting a domestic abuse protection order against Bryce
Seiffert, the father of her minor child. In the petition and affidavit, Green alleged that Seiffert had abused her physically.
The following day, the district court entered an ex parte protection order. Seiffert later challenged the protection order, but,
after a hearing, the district court ordered that the protection
order should remain in effect for 1 year from the date of its
original issuance.
On August 31, 2018, when the original protection order was
about to expire, Green filed a petition and affidavit to renew it
pursuant to Neb. Rev. Stat. § 42-924 (Reissue 2016), which the
Legislature has subsequently amended. See 2019 Neb. Laws,
L.B. 532, § 3 (changes operative January 1, 2020). Green was
not represented by counsel when she requested renewal, and
the petition and affidavit are relatively sparse. Green stated the
following as the reasons for seeking renewal of the protection
order: “[Pressuring] full custody of [her daughter]. [Afraid] for
safety [continues] as the case [continues]. All other reasons on
first protection order.”
- 214 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
Later in the day on August 31, 2018, the district court
entered an order dismissing the petition for renewal of the protection order without a hearing.
Motion to Vacate.
On September 27, 2018, Green, now represented by counsel,
filed a motion to vacate the order dismissing the petition to
renew the protection order. In the motion, Green asked that the
order of dismissal be vacated and that the court hold a hearing
on her request for renewal of the protection order.
On November 5, 2018, the district court held a hearing on
Green’s motion to vacate. At that hearing, Green’s counsel
argued that, based on the allegations in the petition and affidavit seeking renewal of the protection order, the court should
have entered a renewed order. Alternatively, counsel contended
that the district court was obligated to hold an evidentiary hearing before denying the petition to renew the protection order
and that the court should vacate the dismissal and hold a hearing on the petition.
On November 6, 2018, the district court entered a written
order denying the motion to vacate. Green filed a notice of
appeal on November 29.
ASSIGNMENT OF ERROR
Green assigns one error on appeal. She contends that the
district court erred by not vacating its order dismissing the
petition to renew the protection order.
STANDARD OF REVIEW
[1] A jurisdictional question that 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. Simms v. Friel, 302 Neb.
1,
921 N.W.2d 369 (2019).
ANALYSIS
Before reaching the legal issues presented for review, it is
our duty to determine whether we have jurisdiction to decide
- 215 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
them.
Simms, supra. This is the case regardless of whether the
issue is raised by the parties. See State v. Uhing,
301 Neb. 768,
919 N.W.2d 909 (2018). We find it necessary to exercise that
duty here.
[2] Under
Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), to
vest an appellate court with jurisdiction, a party must timely
file a notice of appeal. Bryson L. v. Izabella L.,
302 Neb. 145,
921 N.W.2d 829 (2019). The notice of appeal must be filed
within 30 days of the judgment, decree, or final order from
which the party is appealing unless that time is terminated by
the filing of a qualifying motion. See
id.
Green does not dispute that the district court’s August 31,
2018, order dismissing the petition requesting a renewed protection order was final and appealable. She also acknowledges
that because her motion to vacate was filed more than 10 days
after the order dismissing her petition, it does not qualify as
a motion to alter or amend a judgment, which would have
terminated the time in which a notice of appeal must be filed.
See
id. Having made these concessions, Green is also forced
to concede that she did not timely appeal the order dismissing
her petition.
While Green admits that she failed to timely appeal the
order dismissing her petition, she maintains that we have
jurisdiction to review her case by another means. She asserts
that we may review the order denying her motion to vacate.
She contends that she timely filed a notice of appeal within
30 days of that order and that such orders are appealable.
Green argued in her initial brief on appeal that our opinion in
Capitol Construction v. Skinner,
279 Neb. 419,
778 N.W.2d
721 (2010), overruled on other grounds, McEwen v. Nebraska
State College Sys.,
303 Neb. 552,
931 N.W.2d 120 (2019),
holds that orders denying a motion to vacate or modify a final
order affect a substantial right upon a summary application
in an action after judgment and are thus appealable under
§ 25-1902.
In Capitol Construction, a defendant appealed a decision
from the county court to the district court. The district court
- 216 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
dismissed the appeal when the defendant did not reply to a
progression letter from the court. The defendant later filed a
motion to reinstate, contending that the court did not send the
progression letter to its appellate counsel. The district court
denied the motion to reinstate, and the defendant appealed
to the Nebraska Court of Appeals. On petition for further
review, we held that while the Court of Appeals did not have
jurisdiction to consider the merits of the order of dismissal
because the defendant did not timely appeal, the Court of
Appeals did have jurisdiction to review the denial of the
motion to reinstate. Green’s initial brief contended that the
order denying her motion to vacate is reviewable for the same
reasons the denial of the motion to reinstate was appealable in
Capitol Construction.
After the filing of Green’s initial brief, however, we had
occasion in
McEwen, supra, to address essentially the same
argument regarding the scope of Capitol Construction. In
McEwen, the appellant argued that even if we lacked jurisdiction to review a district court order denying his petition
in error because it was not timely appealed, we nonetheless
had appellate jurisdiction to review a subsequent denial of
a motion to vacate that order under Capitol Construction.
We disagreed.
We explained in McEwen that in Capitol Construction, our
finding that an order denying a motion to vacate or modify
was appealable was predicated on the conclusion that the order
was “‘independently final and appealable and the merits of
that order [were] the issue raised on appeal.’”
303 Neb. at 560,
931 N.W.2d at 127, quoting Capitol Construction, supra. We
pointed out that unlike the motion to reinstate and subsequent
appeal in Capitol Construction, the motion to vacate and subsequent appeal in McEwen did not introduce an “intervening
new matter” and instead merely contended that the initial order
rejecting plaintiff’s claims was erroneous.
303 Neb. at 561,
931
N.W.2d at 128.
After the release of our opinion in McEwen, we issued an
order to show cause, directing Green to address whether her
- 217 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
appeal should be dismissed in light of McEwen. Green submitted a supplemental brief in response to the order to show
cause. In it, she makes three arguments. First, she contends that
her case is distinguishable from McEwen because she is challenging the district court’s denial of her motion to vacate, as
opposed to the initial order dismissing her petition. Second, she
argues that we should review the denial of her motion to vacate
for reasons of judicial efficiency. And finally, she argues that
we should review the denial of the motion to vacate because
the district court’s order dismissing her petition for a protection
order was void. We take up these arguments in turn, but, as we
will explain, we find each unpersuasive.
We begin with Green’s argument that her case is distinguishable from McEwen v. Nebraska State College Sys.,
303
Neb. 552,
931 N.W.2d 120 (2019), because she is challenging
the denial of her motion to vacate and not the order dismissing her petition. While Green attempts to frame her arguments
as a challenge to only the denial of her motion to vacate, the
reason she offers for why vacation was required is that the
district court acted contrary to law when it denied her petition without first providing the opportunity for a hearing. In
other words, Green contends that the district court should
have granted her motion to vacate its initial decision because
that decision was erroneous. So while Green is framing her
argument as challenging the denial of the motion to vacate,
Green is, in fact, contending that the order she failed to
timely appeal was incorrect. Like the appellant in McEwen
and unlike the appellant in Capitol Construction v. Skinner,
279 Neb. 419,
778 N.W.2d 721 (2010), she has not identified
any reason why the order denying her motion to vacate was
“independently final and appealable.”
303 Neb. at 561,
931
N.W.2d at 128.
Neither are we moved by Green’s invocation of judicial
efficiency as a basis for appellate jurisdiction. Here, Green
contends that it is more efficient if litigants in her position
can ask the district court to reconsider its decision without
potentially compromising a future appeal. We find Green’s
- 218 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
GREEN v. SEIFFERT
Cite as 304 Neb. 212
argument is misplaced for multiple reasons. First, appellate
jurisdiction exists only when conferred by the Legislature; it
is not controlled by our notions of what might promote judicial efficiency. See, e.g., Heckman v. Marchio,
296 Neb. 458,
894 N.W.2d 296 (2017). Second, even if addressed on its own
terms, Green’s argument that a finding of no jurisdiction in
this case would force litigants to choose between a request for
reconsideration in the district court and an appeal is simply
incorrect. As noted above, a timely filed motion to alter or
amend terminates the time in which a notice of appeal must be
filed and thus parties may use such motions to seek alteration
of a final order or judgment in the trial court without concern
that their time to appeal will expire in the process. Green failed
to file such a motion in this case.
[3] Finally, we disagree with Green’s contention that we
have the power to vacate the district court’s order dismissing
her petition because it was somehow void. While we understand Green’s position that the order dismissing her petition
was erroneous, we see no basis to conclude that the district
court lacked the authority to enter it. Subject matter jurisdiction is the power of a tribunal to hear and determine a case
in the general class or category to which the proceedings in
question belong and to deal with the general subject matter
involved. D.W. v. A.G.,
303 Neb. 42,
926 N.W.2d 651 (2019).
The district court plainly had authority to hear and determine requests for the renewal of domestic abuse protection
orders, a fact Green understood when she filed her petition in
that court.
CONCLUSION
Because we conclude we lack appellate jurisdiction, we dismiss the appeal.
A ppeal dismissed.
