Capitol Construction v. Skinner

would conclude that the State was not required to make reason-
able efforts to reunify the family pursuant to Neb. Rev. Stat.
§ 43-283.01 (Reissue 2008).
Capitol C onstruCtion, inC., appellee , v. M iCkey C. skinner
and Jean M. skinner , as property owners , and
M ike skinner , as ContraCtor , appellants.
769 N.W.2d 792
Filed June 9, 2009. 	No. A-08-588.
1. Courts: Pleadings: Time: Appeal and Error. When the district court functions
as an intermediate court of appeals, its order is not a judgment, but, rather, an
appellate decision, and in such circumstance, a motion to alter or amend is not an
appropriate motion to file after the district court’s decision and does not toll the
time for filing a notice of appeal.
2. Jurisdiction: Appeal and Error. It is the duty of an appellate court to settle
jurisdictional issues presented by a case.
3. ____: ____. It is the perfection of an appeal to a higher court that divests the
district court, sitting as an appellate court, of jurisdiction.
4. Judgments: Jurisdiction: Appeal and Error. The generally recognized common-
law rule is that an appellate court has the inherent power to reconsider an order or
ruling until divested of jurisdiction.
5. Courts: Judgments: Jurisdiction: Time: Appeal and Error. A motion ask-
ing a district court sitting as an appellate court to exercise its inherent power to
modify its decision does not toll the time for taking an appeal. A party can move
the court to vacate or modify a final order—but if the court does not grant the
motion, a notice of appeal must be filed within 30 days of the entry of the earlier
final order if the party intends to appeal it. And if an appeal is perfected before
the motion is ruled upon, the district court loses jurisdiction to act.
6. Judgments: Time: Appeal and Error. A motion to reconsider a district court’s
appellate decision does not extend the time in which to appeal.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County,
w. M ark ashford, Judge, on appeal thereto from the County
Court for Douglas County, Jeffrey M arCuzzo, Judge. Appeal
dismissed.
Aaron D. Weiner, of Abrahams, Kaslow & Cassman, L.L.P.,
for appellants.
Brian T. McKernan, of McGrath, North, Mullin & Kratz,
P.C., L.L.O., for appellee.
662 	17 NeBRASKA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

inbody, Chief Judge, and sievers and Cassel, Judges.
sievers, Judge.
PROCeDURAL HISTORY
A judgment adverse to Mickey C. Skinner and Jean M.
Skinner in the amount of $5,698.38 was entered in favor
of Capitol Construction, Inc., by the Douglas County Court.
Mickey and Jean, as well as Mike Skinner (collectively the
Skinners), timely appealed to the district court by new counsel
(appellate counsel), although there was never a withdrawal of
the lawyer who tried the case (trial counsel). On November 26,
2007, the clerk of the district court sent a “Notice of Intent to
Dismiss” addressed to the trial counsel. On December 27, the
district court dismissed the appeal. The dismissal order recited
that a “Notice of Intent to Dismiss” letter had been sent to
“counsel of record” and had provided instructions on how to
avoid dismissal. The district court’s order found that case pro-
gression standards had not been met and that the “procedural
process to avoid dismissal was not followed.” On January 14,
2008, appellate counsel filed a “Motion to Reinstate and for
Scheduling” that asserted that the notice of intent to dismiss
had been sent to trial counsel rather than to appellate counsel,
depriving appellate counsel of notice. This motion was heard
on February 20, although we have no record of what occurred
other than a journal note that a hearing was held in chambers
with counsel present and that the matter was taken under
advisement. Thus, we do not know what was said or discussed,
and of course, there is no evidence before us from that hear-
ing. On April 24, the district court denied the motion to rein-
state without any explanation. A notice of appeal to this court
was filed on May 23, which was within 30 days of the court’s
denial of the motion to reinstate, but well beyond 30 days from
the dismissal of the appeal by the district court.
ASSIGNMeNTS OF eRROR
At the outset, we note that on November 6, 2008, we sus-
tained Capitol Construction’s motion to strike portions of the
Skinners’ brief to this court “to the extent that the exhibits
attached to the brief of appellant and all references in said brief
to said exhibits are stricken.” This is of consequence because
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the Skinners’ argument largely centers on the contents of the
stricken exhibits, which are not in evidence.
The Skinners assert in their first assignment of error that
the district court misapplied Goodman v. City of Omaha, 274
Neb. 539, 742 N.W.2d 26 (2007), when it concluded that it did
not have jurisdiction under that decision to hear the Skinners’
appeal. However, the district court’s order denying the motion
to reinstate makes no finding of a lack of jurisdiction, nor
does it mention the Goodman decision. As a matter of appel-
late practice, it is difficult to address a finding the lower court
did not make or a rationale it did not employ. Nonetheless, the
Goodman holding is necessarily implicated in our decision to
a degree. Goodman held that when the district court was func-
tioning as an intermediate court of appeals, its order “was not
a judgment, but, rather, was an appellate decision,” and that
in such circumstances, a motion to alter or amend was not an
appropriate motion to file after the district court’s decision and
did not toll the time for filing a notice of appeal. 274 Neb. at
544, 742 N.W.2d at 30.
With the Goodman holding in place, we set forth the Skinners’
second assignment of error: The Skinners assert that the district
court erred in overruling their motion to reinstate, because the
dismissal would not have occurred without error by the district
court administrator in sending the notice of intent to dismiss to
trial counsel rather than appellate trial counsel, and further that
“justice requires [that] the appeal be reinstated.”
DISCUSSION
[1,2] The term of the district court for Douglas County
begins on January 1 of each year and ends on December 31
of each year. See Rules of Dist. Ct. of Fourth Jud. Dist. 4-1C
(rev. 1995). The judgment of dismissal occurred on December
27, 2007, followed by the filing of the motion to reinstate on
January 14, 2008. Therefore, the term of the district court
at which the dismissal was rendered and entered had ended,
meaning that the motion to reinstate was filed “after term,”
a procedural fact that would be of consequence but for the
holding of Goodman, 274 Neb. at 544, 742 N.W.2d at 30, that
district courts when sitting as intermediate appellate courts do
664 	17 NeBRASKA APPeLLATe RePORTS

not render judgments, but, rather, “appellate decision[s].” In
a system of vertical stare decisis, we are dutybound to follow
Goodman. See Pogge v. American Fam. Mut. Ins. Co., 13 Neb.
App. 63, 688 N.W.2d 634 (2004). Thus, while there is a series
of statutes expressly dealing with the modification of judg-
ments and orders, see Neb. Rev. Stat. §§ 25-2001 and 25-2002
(Reissue 2008), the dismissal at issue here is not an order or
judgment, but, rather, an “appellate decision.” Accordingly,
the statutes relating to modification or vacation of judgments
and orders are inapplicable because of the Goodman holding.
However, we must turn to the issue of jurisdiction because it
is the duty of an appellate court to settle jurisdictional issues
presented by a case. See Merrill v. Griswold’s, Inc., 270 Neb.
458, 703 N.W.2d 893 (2005).
We have withheld our resolution of this appeal pending the
Nebraska Supreme Court’s decision in State v. Hausmann,
277 Neb. 819, 765 N.W.2d 219 (2009), which was released
on May 22, 2009. Although it is a criminal case and does
not involve a motion to reinstate after a dismissal of a civil
appeal as we have here, it nonetheless informs our decision.
Alecia Hausmann was convicted in county court of being
a minor in possession of alcohol, and she appealed to the
district court. That court dismissed the appeal on September
10, 2007, because the record was inadequate for appellate
review because it lacked a final order from the county court.
On September 28, Hausmann filed a motion to vacate the
dismissal and file a supplemental transcript. The district court
granted this motion on October 5, the supplemental transcript
was filed October 9, and the district court affirmed the county
court’s judgment on October 22. Hausmann then appealed to
this court on November 21.
In our decision, State v. Hausmann, 17 Neb. App. 195, 758
N.W.2d 54 (2008), reversed 277 Neb. 819, 765 N.W.2d 219
(2009), we dismissed Hausmann’s appeal as untimely filed,
reasoning that if the district court lacked jurisdiction to vacate
its order of September 10, 2007, then the September 10 order
would have been final and appealable, and that if Hausmann’s
motion to vacate did not toll the time for taking an appeal, then
Hausmann’s November 21 notice of appeal was untimely. In
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our analysis of the jurisdictional issue, we found conflicting
authority from the Nebraska Supreme Court, but we followed
the most recent decisions and concluded that the district court
had no power, when sitting as an appellate court, to rehear its
decisions. We concluded that the district court lost jurisdiction
over the appeal when it entered the September 10 order and
that the subsequent district court proceedings were a nullity
and did not toll the time for Hausmann to file her notice of
appeal. Therefore, we found that her appeal to this court was
out of time. The Supreme Court, on further review, disapproved
one of its prior decisions upon which we had relied, reversed
our decision, and held that the appeal was timely filed.
Thus, we now turn to what the Supreme Court’s opinion in
Hausmann means for this case, and we begin with the analytic
focus that the Supreme Court articulated therein:
[I]t is important to clarify the difference between two
related, but analytically distinct issues: whether the dis-
trict court has jurisdiction to rehear an appeal on which a
final order has been entered, and whether a motion asking
the court to exercise such jurisdiction tolls the time for
taking an appeal.
277 Neb. at 824, 765 N.W.2d at 223.
[3,4] The Supreme Court observed that the district court
vacated its earlier order and entered a new order disposing of
the appeal and that Hausmann could clearly appeal within 30
days of the district court’s new final order, if the court had the
power to enter such an order. The Supreme Court then turned
to its decision in State v. Dvorak, 254 Neb. 87, 574 N.W.2d
492 (1998), disapproved, State v. Hausmann, 277 Neb. 819,
765 N.W.2d 219 (2009), which held that the district court
did not have such power. The Supreme Court then found that
Dvorak was incorrect and disapproved that decision. The flaw
in Dvorak was explained to be its suggestion that the entry of
a final order, standing alone, divested the court of jurisdiction,
when it is the perfection of an appeal to a higher court that
divests the district court, sitting as an appellate court, of juris-
diction. The Supreme Court further explained, and we quote:
[F]undamentally, we erred in finding no authority for the
district court, sitting as an appellate court, to modify its
666 	17 NeBRASKA APPeLLATe RePORTS

previous order. We overlooked our decisions to the con-
trary in [State v.] Painter[, 224 Neb. 905, 402 N.W.2d 677
(1987),] and Interstate Printing Co. [v. Department of
Revenue, 236 Neb. 110, 459 N.W.2d 519 (1990)]. In par-
ticular, we overlooked our reasoning in Interstate Printing
Co., in which we relied on the district court’s inherent
power to vacate or modify its judgments or orders, either
during the term at which they were made, or upon a
motion filed within 6 months of the entry of the judgment
or order. And, as noted by the Court of Appeals in this
case, our holding in Painter that “an intermediate appel-
late court may also timely modify its opinion” is consist-
ent with the generally recognized common-law rule that
an appellate court has the inherent power to reconsider an
order or ruling until divested of jurisdiction.
State v. Hausmann, 277 Neb. at 826, 765 N.W.2d at 224-25.
[5] Having said this, the Supreme Court in Hausmann reaf-
firmed the viability of the holdings of Painter and Interstate
Printing Co. that while an intermediate appellate court still has
jurisdiction over an appeal, it has the inherent power to vacate
or modify a final judgment or order. With this principle firmly
and clearly embraced, the Supreme Court then said:
We emphasize, however, that in the absence of an appli-
cable rule to the contrary, a motion asking the court to
exercise that inherent power does not toll the time for
taking an appeal. A party can move the court to vacate or
modify a final order—but if the court does not grant the
motion, a notice of appeal must be filed within 30 days
of the entry of the earlier final order if the party intends
to appeal it. And if an appeal is perfected before the
motion is ruled upon, the district court loses jurisdiction
to act.
State v. Hausmann, 277 Neb. at 827, 765 N.W.2d at 225.
In the instant case, the Skinners invoked the district court’s
inherent power via a motion to reinstate or vacate filed within
30 days of a final order (or, under Goodman v. City of Omaha,
274 Neb. 539, 544, 742 N.W.2d 26, 30 (2007), a final “appel-
late decision”), but the district court did not rule on the motion
until well after the 30 days to appeal had run. Therefore, under
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State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009), the
time to appeal from the dismissal of December 27, 2007, was
well past when the Skinners filed the notice of appeal on May
23, 2008. Accordingly, we lack jurisdiction to consider the
merits of the dismissal of December 27, 2007.
Nonetheless, it seems to us that the remaining question is
whether we have jurisdiction to consider the April 24, 2008,
denial of the motion to vacate, given that the notice of appeal
was filed within 30 days of that ruling. In deciding this ques-
tion, we remember that in Hausmann, the Supreme Court
made it clear that an “‘intermediate appellate court may also
timely modify its opinion.’” 277 Neb. at 826, 765 N.W.2d at
225. However, in this case, the district court did not modify its
order of dismissal, although the Supreme Court’s resolution of
Hausmann leaves no doubt that the district court could have
done so, even though 30 days from the original dismissal had
run because no notice of appeal had been filed, nor had the dis-
trict court issued a mandate—actions that would have deprived
the district court of jurisdiction.
[6] Nonetheless, we remember that the district court did not
modify its dismissal and that certainty and finality of orders
for appeal purposes are desirable. Those factors, coupled with
the Supreme Court’s clear directive in Hausmann that the
litigant must within 30 days either achieve the modification he
or she seeks or file an appeal, cause us to conclude that once
the 30 days in which to appeal run, without either the filing
of a notice of appeal or a ruling on the motion to modify, the
motion to vacate becomes akin to a “motion to reconsider.”
And the case law is clear that a motion to reconsider, except
when based on newly discovered evidence, does not extend the
time in which to appeal. See, Kinsey v. Colfer, Lyons, 258 Neb.
832, 606 N.W.2d 78 (2000); Breeden v. Nebraska Methodist
Hosp., 257 Neb. 371, 598 N.W.2d 441 (1999); City of Lincoln
v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996).
Therefore, for these reasons, we find that this appeal was
filed out of time and that we lack jurisdiction.
appeal disMissed.
668 	17 NeBRASKA APPeLLATe RePORTS