Fidler v. Life Care Centers of America

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301 Nebraska Reports
FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Virginia Fidler and Keith Fidler, appellees,
v. Life Care Centers of America, Inc.,
doing business as Life Care Center
of Elkhorn, et al., appellants.
919 N.W.2d 903
Filed November 30, 2018. 	No. S-17-1243.
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
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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
be significantly undermined or irrevocably lost by postponing appel-
late 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 (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 (1982); and
Fanning v. Richards, 193 Neb. 431, 227 N.W.2d 595 (1975), are disap-
proved 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 negli-
gence action for failure to timely submit a proposed scheduling
order, it granted a motion to reinstate the case. This appeal fol-
lowed. Because we conclude that the district court’s reinstate-
ment 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 rehabilita-
tion facility in Elkhorn, Nebraska, from September 16 to 21,
2013, while recovering from an infection. During Virginia’s

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
stay at the facility, a large blood clot developed on her left
lower leg which thereafter required hospitalization and emer-
gency 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) indicat-
ing” 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 account-
ing 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

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
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 would not prejudice Life Care Centers. With minor
alteration, the court executed the proposed scheduling order
submitted by the Fidlers.
Life Care Centers appeals.
ASSIGNMENTS OF ERROR
Life Care Centers claims, restated, that (1) the district court
erred when it applied the local rules regarding reinstatement of
cases instead of Neb. Rev. Stat. § 25-201.01 (Reissue 2016) to
decide whether to reinstate the case and (2) even if the local
court rule for case progression applies, the district court erred
when it found that the Fidlers had demonstrated good cause
for reinstatement.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual 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.1
ANALYSIS
[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.2 There was no judgment entered
finally determining the rights and liabilities of the parties.
Therefore, our inquiry focuses on the order vacating dismissal
1 State ex rel. Rhiley v. Nebraska State Patrol, ante p. 241, 917 N.W.2d 903
(2018).
2 Id.

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
and reinstating the case. Neither party contests the validity of
the order administratively dismissing the action, and for pur-
poses of this opinion, we assume that the dismissal order was
valid and effective.
[3,4] Appellate jurisdiction turns on whether the order vacat-
ing dismissal and reinstating the case was a final order under
Neb. Rev. Stat. § 25-1902 (Reissue 2016). An order is final for
purposes of appeal under § 25-1902 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.3
In Deines v. Essex Corp.,4 we clarified there is no “blanket rule
that every order vacating a dismissal and reinstating a case is
final and appealable. Rather, the statutory criteria of § 25-1902
must be applied to determine whether the order appealed from
is final.”5
[5,6] Broadly stated, an order affects a substantial right if it
“‘“affects the subject matter of the litigation, such as dimin-
ishing a claim or defense that was available to the appellant
prior to the order from which he or she is appealing.”’” 6 Our
final order jurisprudence recognizes that it is not enough that
a right be substantial; the effect of the subject order on that
right must also be substantial. 7 “Whether the effect of an order
is substantial depends on ‘“whether it affects with finality the
rights of the parties in the subject matter.”’” 8 It also depends
on whether the right could be effectively vindicated absent
interlocutory review; an order affects a substantial right when
3 See Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774
(2018).
4 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
5 Id. at 580, 879 N.W.2d at 33.
6 Id. at 581, 879 N.W.2d at 33-34.
7 See Deines, supra note 4.
8 Id. at 581, 879 N.W.2d at 33.

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
the right would be significantly undermined or irrevocably lost
by postponing appellate review.9
Life Care Centers relies on our reasoning in Jarrett v.
Eichler10 to argue that a substantial right was affected by the
order reinstating this case to the active docket. In Jarrett,
a negligence action was timely filed, but was dismissed for
want of prosecution after the statute of limitations expired.
In considering whether the order vacating the dismissal and
reinstating the action was a final, appealable order, we found
it significant that the plaintiff would not have been able to suc-
cessfully file a new negligence action, because the defendants
“could have prevailed on a statute of limitations defense.”11
From there, we reasoned that the order reinstating the case
“destroyed [a] defense which was previously available to
appellant” and thus affected a substantial right.12 Jarrett did
not consider the effect of the savings clause in § 25-201.01,
as that statute was not enacted until several years after Jarrett
was decided.
Jarrett supports, we acknowledge, the argument that the
order appealed from here is a final order. However, our “sub-
stantial right” analysis in Jarrett focused on the wrong action.
Rather than asking whether a substantial right of the parties
in the subject action was affected by reinstatement, Jarrett
focused on whether reinstatement would affect a substantial
right available in a new, hypothetical action. That misdirected
focus caused us to answer the wrong question and allowed us
to find a final, appealable order where none existed.
In Jarrett, we relied upon two earlier decisions, neither
of which compelled our reasoning regarding the statute of
limitations in a future case. First, we relied upon Gutchewsky
9 Deines, supra note 4.
10 Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993).
11 Id. at 314, 506 N.W.2d at 685.
12 Id.

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
v. Ready Mixed Concrete Co.13 However, in that case, we did
not consider our jurisdiction over an appeal from an order
vacating an earlier dismissal. Instead, we cited case law
addressing the merits of a reinstatement order, noting that
the “‘fact that a new suit would be barred is an important
consideration . . . .’”14 This first case did not stand for the
proposition that the inability to assert a statute of limitations
defense in a future, hypothetical case affected a substantial
right in the current case. Second, we cited to A. Hirsh, Inc.
v. National Hair Co.15 In that case, we did not even mention
a statute of limitations, although it seems clear that the case
had pended beyond the limitation. We did not discuss jurisdic-
tion. The most that can be said for either of these earlier cases
is that because we did not discuss jurisdiction, we implicitly
determined that it existed. But neither case discussed whether
a reinstatement order affected a substantial right because of an
inability to raise a statute of limitations defense in the rein-
stated case.
A respected commentator noted that in Jarrett, this court
could have held that the order under review was not final but
that to do so would have required us “to say that [we had] made
a mistake in reviewing the order in five cases.”16 In addition
to the two discussed in the preceding paragraph, the commen-
tator identified three other cases. 17 In one of these decisions,
Fanning v. Richards, 18 we addressed a reinstatement order
13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803, 366 N.W.2d 751
(1985).
14 Id. at 806, 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221,
263 N.W.2d 102 (1978)).
15 A. Hirsh, Inc. v. National Hair Co., 210 Neb. 397, 315 N.W.2d 236 (1982).
16 See John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 248 (2001).
17 Id. at 248 n.46.
18 Fanning v. Richards, 193 Neb. 431, 227 N.W.2d 595 (1975).

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
(after a dismissal for lack of prosecution) without discussing
jurisdiction or the substantial right supposedly affected by the
reinstatement order. There is no indication in our opinion that
a statute of limitations had expired. And we simply did not dis-
cuss jurisdiction. In the two other cases, Vacca v. DeJardine19
and Jones v. Nebraska Blue Cross Hospital Service Assn.,20
we addressed appeals for orders vacating default judgments
and permitting suits to go forward. In both of these cases,
the affected party had secured a judgment, of which it was
deprived by the appealed order. There, the judgment creditor’s
right to collect by execution of its judgment in the current
case—not some future, hypothetical case—was affected by
taking away that default judgment. We do not agree that those
two cases were wrongly decided.
[7] We conclude that our final order jurisprudence would
be strengthened by expressly disapproving of the statute of
limitations reasoning in Jarrett, and we do so to the extent that
Jarrett held that the order appealed from affected a substantial
right by destroying a defense in a future hypothetical action.
We also disapprove of Gutchewsky21; A. Hirsh, Inc.22; and
Fanning23 to the extent that they implicitly rely upon that same
reasoning in Jarrett.
We instead emphasize that courts should apply the statutory
criteria of § 25-1902 to determine whether orders vacating dis-
missal and reinstating cases are final and appealable.24 Doing
so here, we conclude Life Care Centers has not appealed from
a final order.
19 Vacca v. DeJardine, 213 Neb. 736, 331 N.W.2d 516 (1983).
20 Jones v. Nebraska Blue Cross Hospital Service Assn., 175 Neb. 101, 120
N.W.2d 557 (1963).
21 Gutchewsky, supra note 13.
22 A. Hirsch, Inc., supra note 15.
23 Fanning, supra note 18.
24 See Deines, supra note 4.

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
Life Care Centers contends the order affected a substantial
right for two reasons: “[T]he case was reinstated (1) after the
statute of limitations had expired and (2) after [the Fidlers]
retained an expert to testify as to liability and causation.” 25 On
this record, neither circumstance affects a substantial right in
this action.
First, because to that extent Jarrett was wrongly decided, it
makes no difference to our substantial right analysis that Life
Care Centers may have a viable statute of limitations defense
to a hypothetical new action brought by the Fidlers. We con-
sider only the existing case, as, obviously, no new case was
filed by the Fidlers. And our final order inquiry asks whether
a substantial right in the instant case, not a hypothetical future
case, was affected by the order of reinstatement.
Nor are we persuaded by the argument that the order of
reinstatement affected a substantial right due to the Fidlers’
retention of an expert witness. Life Care Centers argues that
when the case was dismissed, the Fidlers had not yet retained
an expert to testify regarding liability or causation, but that
by the time the case was reinstated several months later, they
had. Life Care Centers does not suggest the Fidlers would have
been unable, absent the dismissal, to retain an expert, nor do
they explain how the relatively common development of hir-
ing an expert to prepare a medical negligence case for trial
affected a substantial right.
The fact that an order of reinstatement may allow the case
to move forward to trial does not, without more, mean the
order affects a substantial right of the opposing party. 26 And
although reinstatement of this case may require Life Care
Centers to defend this case to conclusion, that was true before
dismissal as well, and the “‘[o]rdinary burdens of trial do not
necessarily affect a substantial right.’”27
25 Brief for appellants at 1.
26 See Deines, supra note 4.
27 Id. at 582, 879 N.W.2d at 34.

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FIDLER v. LIFE CARE CENTERS OF AMERICA
Cite as 301 Neb. 724
On this record, the most that can be said regarding the effect
of the order vacating dismissal and reinstating the case is that
it put the parties back in roughly the same litigation posture
as before the action was dismissed. There is nothing about the
order reinstating this case that affected with finality the par-
ties’ rights in this action. And there is no evidence that any
right would be diminished, undermined, or lost by postponing
appellate review of the order until after this case proceeds to
final judgment. Where, as here, reinstatement cannot be shown
to affect a substantial right in the action, there is no reason to
disrupt the orderly progression of the case and postpone final
resolution of the parties’ claims and defenses by entertaining
an interlocutory appeal.
CONCLUSION
Because we lack jurisdiction to consider the order appealed
from, we dismiss the appeal.
Appeal dismissed.