Yelli v. Neth

Accordingly, since Worley’s maximum sentence is 25 years,
by crediting him with 6 months of good time per year of such
term, plus 159 days for time served, we find that Worley’s man-
datory discharge date is 12 years 6 months from the date on
which he was sentenced, November 4, 1997. Adding 12 years 6
months to that date, and subtracting 159 days for time served,
makes Worley’s mandatory discharge date November 26, 2009.
Of course, the mandatory discharge date so determined is only
a tentative date, because a prisoner might fail to perform the
requirements of the prisoner’s personal program or be subject
to losing good time for disciplinary reasons.
CONCLUSION
For the reasons stated above, we reverse the district court’s
order sustaining Appellees’ motion for summary judgment and
overruling Worley’s motion for summary judgment. Worley’s
motion for summary judgment is hereby sustained, and his
mandatory discharge date from prison is November 26, 2009.
reverSed .
JAmeS l. yelli , AppellANt , v . beverly N eth ,
director , S tAte of N ebrASkA, depArtmeNt
of motor vehicleS, Appellee .
747 N.W.2d 459
Filed April 15, 2008. 	No. A-07-567.
1. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation. The
holder of a commercial driver’s license is subject to administrative revocation for
driving a commercial vehicle with a blood alcohol content of .04 or more.
2. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. ____: ____. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Appeal and Error. Neb. Rev. Stat. § 60-4,167.02 (Reissue 2004) provides that
any person aggrieved because of disqualification pursuant to a hearing under Neb.
Rev. Stat. § 60-4,167 (Reissue 2004) may appeal to the district court of the county
where the alleged violation occurred in accordance with the Administrative
procedure Act.
YELLI v. NETH 	639
Cite as 16 Neb. App. 639
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

5. Administrative Law: Final Orders: Time: Appeal and Error. Under the
Administrative procedure Act, judicial review shall be instituted by filing a peti-
tion in the district court of the county where the action is taken within 30 days
after the service of the final decision by the agency.
6. Jurisdiction: Counties: Appeal and Error. If the district court lacks appellate
jurisdiction because an appeal is filed in the wrong county, such court lacks juris-
diction to transfer the case to the proper county.
Appeal from the District Court for Stanton County: robert b.
eNSZ, Judge. Appeal dismissed.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
p.C., for appellant.
Jon bruning, Attorney General, and Milissa D. Johnson-Wiles
for appellee.
S ieverS, cArlSoN, and moore, Judges.
S ieverS, Judge.
This case involves the administrative license revocation of a
commercial driver’s license (CDL), a topic on which there is
a paucity of discussion by the Nebraska appellate courts. We
ultimately determine that this case is resolved by a jurisdic-
tional defect. pursuant to our authority under Neb. Ct. R. of
prac. 11b(1) (rev. 2006), we have ordered the cause submitted
without oral argument.
pROCEDURAL AND FACTUAL bACkGROUND
On September 19, 2006, a Stanton County deputy sheriff
made a traffic stop of James L. Yelli, who was then driving a
53-foot tractor-trailer. According to the deputy, the stop was
made on U.S. Highway 275 on the Stanton County-Cuming
County line. The deputy testified that he had seen the viola-
tion occur west of the east junction of Highway 275 and state
Highway 15 on Highway 275 in Stanton County. On the other
hand, Yelli testified that he was stopped at mile marker 97,
and it is suggested that the encounter occurred in Cuming
County. Yelli was ultimately arrested pursuant to Neb. Rev.
Stat. § 60-6,197 (Reissue 2004) and submitted to testing which
registered .113 of a gram of alcohol per 210 liters of breath.
640 	16 NEbRASkA AppELLATE REpORTS

The revocation hearing officer discussed the controversy of
where Yelli was stopped and concluded that he accepted the
officer’s testimony and that the stop occurred at the Stanton
County-Cuming County line for a violation occurring west of
that location in Stanton County. beverly Neth, director of the
Department of Motor Vehicles (Director), adopted the hearing
officer’s findings in her revocation.
[1] 	This 	revocation 	is 	controlled 	by 	Neb. 	Rev. 	Stat.
§§ 60-4,167 through 60-4,167.02 (Reissue 2004). That statutory
scheme makes the holder of a CDL subject to administrative
revocation for driving a commercial vehicle with a blood alco-
hol content of .04 or more. See Neb. Rev. Stat. § 60-4,164(5)
(Reissue 2004). Therefore, the Director found that Yelli was
disqualified from driving a commercial motor vehicle pursu-
ant to Neb. Rev. Stat. §§ 60-4,163 through 60-4,172 (Reissue
2004 & Cum. Supp. 2006), which carries a disqualification of 1
year. The hearing occurred on November 29, 2006, in Stanton,
Stanton County, Nebraska. The Director’s decision was dated
December 6, 2006.
On December 21, 2006, Yelli filed an appeal of the Director’s
decision in the district court for Holt County, Nebraska. We note
that paragraph 5 of the appeal provides as follows: “Venue is
appropriate in the District Court of Stanton County, Nebraska
because [Yelli] resides in [sic] events leading to [Yelli’s] arrest
occurred in Stanton County, Nebraska.” While the quoted sen-
tence suffers from a lack of proofreading, we take it to be an
allegation that the events leading to Yelli’s arrest occurred in
Stanton County, Nebraska. Despite this allegation, the appeal
was filed in the district court for Holt County, Nebraska.
The Director filed an answer alleging that the Holt County
District Court lacked subject matter jurisdiction, asserting that
the appeal needed to be filed in the county where the alleged
violation occurred, which was not Holt County. Thereupon,
Yelli filed a motion to transfer the matter from the district court
for Holt County to the district court for Stanton County, which
motion was granted on March 12, 2007. On May 15, the district
court for Stanton County affirmed the order of the Director dis-
qualifying Yelli from operating a commercial motor vehicle for
1 year. Yelli has perfected his appeal to this court.
YELLI v. NETH 	641
Cite as 16 Neb. App. 639

JURISDICTIONAL ISSUE
[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 matter before it. Dillion v. Mabbutt, 265
Neb. 814, 660 N.W.2d 477 (2003).
[3] Our standard of review is that a jurisdictional question
which does not involve a factual dispute is determined by an
appellate court as a matter of law. Fischer v. Cvitak, 264 Neb.
667, 652 N.W.2d 274 (2002).
While we have earlier alluded to the factual dispute between
Yelli and the arresting deputy as to where the violation occurred
and where the stop occurred, it is clear that the disputed loca-
tion is either Stanton or Cuming County—both a long way
from Holt County, where this appeal was filed. Therefore, the
jurisdictional issue does not involve a factual dispute.
[4] This administrative license revocation proceeded under
§ 60-4,167, which references the CDL of a person who is
the subject of the officer’s sworn report. Section 60-4,167.02
provides that any person aggrieved because of disqualification
pursuant to a hearing under § 60-4,167 “may appeal to the dis-
trict court of the county where the alleged violation occurred in
accordance with the Administrative procedure Act.” There is no
dispute that the traffic violation and the arrest for driving while
intoxicated did not occur in Holt County.
[5] Turning to the Administrative procedure Act, Neb. Rev.
Stat. § 84-917 (Cum. Supp. 2006) provides that a person
aggrieved by a final decision in a contested case is entitled to
judicial review. Section 84-917(2)(a) provides that such review
“shall be instituted by filing a petition in the district court of
the county where the action is taken within thirty days after the
service of the final decision by the agency.”
In Essman v. Nebraska Law Enforcement Training Ctr., 252
Neb. 347, 350, 562 N.W.2d 355, 357 (1997), the court said that
where a district court has statutory authority to review an action
of an administrative agency, the district court may acquire juris-
diction only if the review is sought “‘in the mode and manner
and within the time provided by statute.’” Quoting McCorison
v. City of Lincoln, 218 Neb. 827, 359 N.W.2d 775 (1984). The
Essman decision also refers to the above-quoted portion of
642 	16 NEbRASkA AppELLATE REpORTS

§ 84-917(2)(a). Essman discusses the phrase “county where
the action is taken” as used in § 84-917(2)(a) and reiterates
that it is the site of the first adjudicated hearing of a disputed
claim. Thus, there is no question that the appeal had to be
filed in Stanton County District Court under the Administrative
procedure Act, because that is where the hearing resulting in
the disqualification of Yelli’s CDL occurred.
[6] Therefore, the filing in Holt County was a nullity,
and that court never acquired jurisdiction. Therefore, the Holt
County District Court lacked jurisdiction to transfer the appeal
to the Stanton County District Court. See Gilmore v. Nebraska
Crime Vict. Rep. Bd., 225 Neb. 640, 407 N.W.2d 736 (1987) (if
district court lacks appellate jurisdiction because appeal is filed
in wrong county, such court lacks jurisdiction to transfer case
to proper county). Yelli’s appeal cannot be saved by a motion
and order of transfer from the district court for Holt County,
a court that never had jurisdiction, to the district court for
Stanton County, because § 84-917(2)(a) imposes a 30-day time
limit in which to file an Administrative procedure Act appeal.
See Gilmore, supra. Accordingly, the Stanton County District
Court never acquired jurisdiction, and when the lower court
from which the appeal to this court did not have jurisdiction,
neither do we. See Schmidt v. State, 255 Neb. 551, 586 N.W.2d
148 (1998) (when lower court does not gain jurisdiction over
case before it, appellate court also lacks jurisdiction to review
merits of claim).
CONCLUSION
because Yelli’s attempt to obtain judicial review of his
administrative license revocation was filed in Holt County
District Court, which lacked jurisdiction, such filing was a
nullity, as was its order transferring such appeal to the Stanton
County District Court, the court having jurisdiction over any
such appeal. Since the Stanton County District Court never
acquired jurisdiction, this court lacks jurisdiction. Therefore,
the appeal is dismissed.
A ppeAl diSmiSSed .
YELLI v. NETH 	643
Cite as 16 Neb. App. 639