BryanLGH v. Nebraska Dept. of Health & Human Servs.

bryanlGh M edical center , a nebraSka nonprofit
corporation , appellee and croSS- appellant , v . nebraSka
departMent of health and huMan S erviceS reGulation
and licenSure , an adMiniStrative aGency of the S tate of
nebraSka , and J oann S chaefer , M.d., director of the
nebraSka departMent of health and huMan S erviceS
reGulation and licenSure , appelleeS, and M adonna
rehabilitation hoSpital , a nebraSka nonprofit
corporation , intervenor - appellant
and croSS- appellee .
755 N.W.2d 807
Filed September 19, 2008. 	No. S-07-1016.
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. Moot Question: Words and Phrases. A case becomes moot when the issues
initially presented in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the litigants seek to
determine a question which does not rest upon existing facts or rights, in which
the issues presented are no longer alive.
3. Courts: Jurisdiction. Although not a constitutional prerequisite for jurisdiction,
an actual case or controversy is necessary for the exercise of judicial power.
4. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.
5. Moot Question. As a general rule, a moot case is subject to summary dismissal.
6. Moot Question: Appeal and Error. When a party or parties are aware that
appellate issues have become moot during the pendency of the appeal and such
mootness is not reflected in the record, in the interest of judicial economy, a party
may file a suggestion of mootness in the Nebraska Supreme Court or Nebraska
Court of Appeals as to the issue or issues claimed to be moot.
7. Courts: Justiciable Issues. A court decides real controversies and determines
rights actually controverted, and does not address or dispose of abstract questions
or issues that might arise in a hypothetical or fictitious situation or setting.
8. Moot Question: Appeal and Error. An appellate court may choose to review
an otherwise moot case under the public interest exception if it involves a matter
affecting the public interest or when other rights or liabilities may be affected by
its determination.
9. ____: ____. The public interest exception to the mootness doctrine requires a
consideration of the public or private nature of the question presented, the desir-
ability of an authoritative adjudication for future guidance of public officials, and
the likelihood of future recurrence of the same or a similar problem.
596 	276 NEbRASkA REPoRTS
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www.nebraska.gov/apps-courts-epub/
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Appeal from the District Court for Lancaster County: earl
J. W itthoff, Judge. Appeal dismissed.
Loel P. brooks, of brooks, Pansing & brooks, P.C., L.L.o.,
and Steven G. Seglin and Thomas E. Jeffers, of Crosby Guenzel,
L.L.P., for intervenor-appellant.
kirk S. blecha, barbara E. Person, and John A. Sharp, of
baird Holm, L.L.P., for appellee bryanLGH Medical Center.
heavican, 	C.J., 	W riGht, 	connolly, 	G errard, 	S tephan,
M ccorMack, and M iller -lerMan, JJ.
per curiaM.
The issue presented by the parties to this appeal involves the
statutory criteria for determining whether a certificate of need
is required for an increase in the number of rehabilitation beds
in a health care facility. but the initial question we must decide
is whether this appeal has become moot, due to an intervening
change in state law and the approval of the plaintiff’s applica-
tion for Medicare certification of its increased number of reha-
bilitation beds.
bACkGRoUND
The Nebraska Health Care Certificate of Need Act1 estab-
lishes, among other things, the criteria and procedures by
which the Nebraska Department of Health and Human Services
Regulation and Licensure (Department) issues the certificates
of need that permit establishment or expansion of hospital bed
capacity. At the time this litigation began, § 71-5829.03(2)
provided that a certificate of need was required for “[a]n
increase in the long-term care beds or rehabilitation beds of
a health care facility by more than ten beds or more than ten
percent of the total bed capacity, whichever is less, over a two-
year period.”
bryanLGH Medical Center (bryanLGH) sought to add 10
rehabilitation beds at its west campus, increasing its number
of rehabilitation beds from 20 to 30. bryanLGH’s total bed
1 Neb. Rev. Stat. §§ 71-5801 to 71-5870 (Reissue 2003).
bRyANLGH v. NEbRASkA DEPT. oF HEALTH & HUMAN SERVS. 	597
Cite as 276 Neb. 596

capacity was to remain 290 beds, because bryanLGH intended
to seek Medicare certification of 10 of its acute care beds as
rehabilitation beds. bryanLGH sought confirmation from the
Department that no certificate of need would be required for
this increase in its number of rehabilitation beds.
The Department informed bryanLGH that a certificate of
need would be required. The Department explained that it
interpreted § 71-5829.03(2) as requiring a certificate of need
if a facility proposed to increase its number of rehabilitation
beds by more than 10 percent of the total rehabilitation bed
capacity. because bryanLGH had 20 rehabilitation beds, the
Department concluded that bryanLGH could add only 10 per-
cent of that—2 beds—without a certificate of need.
bryanLGH filed a declaratory judgment action in the district
court, seeking a declaration that no certificate of need was
required. bryanLGH contended that the “total bed capacity,”
within the meaning of § 71-5829.03(2), referred to the total
number of beds of any kind. Thus, bryanLGH concluded that
it could add up to 10 rehabilitation beds without a certificate
of need, because 10 beds was less than 10 percent of its total
bed capacity of 290. The Department denied bryanLGH’s con-
tentions, as did Madonna Rehabilitation Hospital (Madonna),
which the district court allowed to intervene in support of the
Department’s position. but the district court ultimately agreed
with bryanLGH, and declared that bryanLGH had the right to
seek Medicare certification for 10 additional rehabilitation beds
without a certificate of need.
Madonna appealed on September 20, 2007, and we granted
Madonna’s petition to bypass the Nebraska Court of Appeals.
While the appeal was progressing, the Legislature turned its
attention to § 71-5829.03, in specific response to the district
court’s decision in this case. As enacted, 2008 Neb. Laws, L.b.
765, expressly provided that a certificate of need is required for,
among other things, “[a]n increase in the rehabilitation beds of
a health care facility by more than ten rehabilitation beds or
more than ten percent of the total rehabilitation bed capacity of
such facility, whichever is less, over a two-year period.”2 The
2 L.b. 765, one Hundredth Legislature, Second Session.
598 	276 NEbRASkA REPoRTS

stated purpose of the legislation was to clarify that “a proposed
increase in rehabilitation beds will be measured against the
current total bed capacity of rehabilitation beds.”3
but the changes effected by L.b. 765 did not become effec-
tive until July 18, 2008.4 In the meantime, on May 9, the Centers
for Medicare and Medicaid Services informed bryanLGH that
the 10 additional rehabilitation beds bryanLGH had requested
had been approved.
ASSIGNMENTS oF ERRoR
before us now is the appeal taken by Madonna after the dis-
trict court’s declaratory order. Madonna assigns, consolidated,
restated, and renumbered, that the district court erred in (1)
interpreting the phrase “total bed capacity” in § 71-5829.03(2)
and (2) failing to defer to the Department’s interpretation of
§ 71-5829.03(2). on cross-appeal, bryanLGH assigns that the
district court erred in finding that (1) Madonna possessed a
direct and legal interest in the outcome of the case sufficient
to permit it to intervene and (2) the Department could not
adequately represent Madonna’s interest.
In addition, after L.b. 765 was enacted, we entered a supple-
mental briefing order, directing the parties to brief the follow-
ing issues: (1) how the enactment or legislative history of L.b.
765 should inform this court’s analysis of the issues presented
in this appeal and (2) whether the enactment of L.b. 765 ren-
ders any or all of those issues moot.
STANDARD oF REVIEW
[1] Mootness does not prevent appellate jurisdiction.5 but,
because mootness is a justiciability doctrine that operates to
prevent courts from exercising jurisdiction, we have reviewed
mootness determinations under the same standard of review
as other jurisdictional questions. A jurisdictional question that
3 Committee Statement, L.b. 765, Committee on Health and Human
Services, 100th Leg., 2d Sess. (Jan. 24, 2008) (emphasis in original).
4 See, Neb. Const. art. III, § 27; Legislative Journal, 100th Leg., 2d Sess.
1579 (Apr. 17, 2008).
5 State v. Eutzy, 242 Neb. 851, 496 N.W.2d 529 (1993); Maack v. School
Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).
bRyANLGH v. NEbRASkA DEPT. oF HEALTH & HUMAN SERVS. 	599
Cite as 276 Neb. 596

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.6
ANALySIS
[2-5] The first issue we confront in this case is whether
the appeal has become moot. A case becomes moot when the
issues initially presented in the litigation cease to exist, when
the litigants lack a legally cognizable interest in the outcome
of litigation, or when the litigants seek to determine a question
which does not rest upon existing facts or rights, in which the
issues presented are no longer alive.7 Although not a constitu-
tional prerequisite for jurisdiction, an actual case or controversy
is necessary for the exercise of judicial power.8 In the absence
of an actual case or controversy requiring judicial resolution,
it is not the function of the courts to render a judgment that is
merely advisory.9 Therefore, as a general rule, a moot case is
subject to summary dismissal.10
[6] bryanLGH has filed a suggestion of mootness in this
case, establishing the facts set forth above.11 At oral argument,
counsel for Madonna refused to concede the facts underly-
ing bryanLGH’s suggestion of mootness, but counsel did not
dispute them either. Instead, counsel essentially questioned
bryanLGH’s provision of proof that its additional rehabilita-
tion beds had been Medicare certified. but it is well established
that when a party or parties are aware that appellate issues
have become moot during the pendency of the appeal and such
mootness is not reflected in the record, in the interest of judi-
cial economy, a party may file a suggestion of mootness in the
6 Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
7 Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738
N.W.2d 820 (2007).
8 Id.
9 In re Applications of Koch, 274 Neb. 96, 736 N.W.2d 716 (2007).
10 Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d
321 (2006).
11 See ProData Computer Servs. v. Ponec, 256 Neb. 228, 590 N.W.2d
176 (1999).
600 	276 NEbRASkA REPoRTS

Nebraska Supreme Court or Court of Appeals as to the issue or
issues claimed to be moot.12
Essentially, the suggestion of mootness is a motion filed in
an appellate court, asking that court to dismiss the appeal and
including evidence to substantiate its underlying allegations.
Madonna resists bryanLGH’s suggestion of mootness, but has
not alleged facts, or presented evidence, to contradict the alle-
gations and evidence submitted by bryanLGH. Nor do we have
any reason to believe that bryanLGH has submitted evidence
in bad faith. based on bryanLGH’s suggestion of mootness,
and in the absence of any credible suggestion to the contrary,
we find that the facts alleged in bryanLGH’s suggestion of
mootness have been sufficiently established.
based on those facts, bryanLGH argues that the case is moot
because the relief provided by the district court is complete.
We agree. The district court’s order simply allowed bryanLGH
to seek Medicare certification of 10 additional rehabilitation
beds without a certificate of need. bryanLGH has completed
that certification process. Therefore, reversing the court’s order
would have no practical effect.
Nor is there anything in the pleadings or transcript to sug-
gest that Madonna or the Department asked the district court to
provide any relief against bryanLGH. They simply asked the
court to deny bryanLGH’s claim for relief—a request that is no
longer meaningful. In other words, even if there is some mech-
anism by which the court could order bryanLGH to “undo”
what it has done, there is no claim before us in this appeal that
would support the provision of such relief. bryanLGH obtained
the only relief it sought, and no other party asked the district
court to do anything else.
[7] We are aware that engaging in conduct that requires a
certificate of need without obtaining a certificate of need is
subject to civil and criminal penalties.13 but again, there is
nothing in the record to suggest that bryanLGH is, or will be,
12 Id. See, also, V.C. v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001);
Beachy v. Becerra, 259 Neb. 299, 609 N.W.2d 648 (2000); Greater Omaha
Realty Co. v. City of Omaha, 258 Neb. 714, 605 N.W.2d 472 (2000).
13 See §§ 71-5869 and 71-5870.
bRyANLGH v. NEbRASkA DEPT. oF HEALTH & HUMAN SERVS. 	601
Cite as 276 Neb. 596

subject to such penalties. A court decides real controversies and
determines rights actually controverted, and does not address
or dispose of abstract questions or issues that might arise in a
hypothetical or fictitious situation or setting.14
[8,9] We have held that an appellate court may choose to
review an otherwise moot case under the public interest excep-
tion if it involves a matter affecting the public interest or when
other rights or liabilities may be affected by its determination.15
This exception requires a consideration of the public or private
nature of the question presented, the desirability of an authori-
tative adjudication for future guidance of public officials, and
the likelihood of future recurrence of the same or a similar
problem.16 but in this case, L.b. 765 precludes application
of the public interest exception. This would be a case of last
impression, and in the absence of a party whose rights are pres-
ently at issue, there is no need for an authoritative construction
of statutory language that no longer exists. The public interest
exception to the mootness doctrine is not applicable here.
CoNCLUSIoN
Given the record before us, and the uncontested facts estab-
lished by bryanLGH’s suggestion of mootness, we conclude
that this appeal is moot and that the public interest exception to
the mootness doctrine is not applicable. Madonna’s appeal and
bryanLGH’s cross-appeal are dismissed.
appeal diSMiSSed .
14 In re Applications of Koch, supra note 9.
15 Id.
16 Id.
602 	276 NEbRASkA REPoRTS