Capitol Construction v. Skinner

Capitol C onstruCtion, inC., appellee , v. M iCkey C. skinner
and Jean M. skinner , as property owners , and
M ike skinner , as ContraCtor , appellants.
778 N.W.2d 721
Filed February 12, 2010. 	No. S-08-588.
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. Courts: Judgments: Jurisdiction: Appeal and Error. A district court sitting as
an appellate court has the same power to reconsider its orders, both inherently
and under Neb. Rev. Stat. § 25-2001 (Reissue 2008), as it does when it is a court
of original jurisdiction.
3. Motions to Vacate: Final Orders: Appeal and Error. An order denying a
motion to vacate or modify a final order is itself a final, appealable order.
4. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court
of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate,
some or all of the assignments of error the Court of Appeals did not reach.
Petition for further review from the Court of Appeals,
inbody, Chief Judge, and sievers and Cassel, Judges, on appeal
thereto 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. Judgment of Court
of Appeals reversed, and cause remanded with directions.
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.
heaviCan, 	C.J., 	wright, 	C onnolly, 	gerrard, 	stephan,
MCC orMaCk , and M iller-lerMan, JJ.
gerrard, J.
The district court, sitting as an appellate court, dismissed the
appellants’ appeal. The appellants asked the district court to
reinstate the appeal, alleging that they had not received notice
of the impending dismissal. The district court refused, and
the appellants appealed again, arguing that the district court
should have reinstated their appeal. But the Nebraska Court
CAPiTOL CONSTRUCTiON v. SKiNNeR 	419
Cite as 279 Neb. 419
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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of Appeals dismissed their appeal as untimely, because they
had not appealed within 30 days of the district court’s order
of dismissal. The issue presented is whether the district court’s
order refusing to reinstate the appeal was itself a final, appeal-
able order. We conclude that it was, and because the appellants
timely appealed from that order, we reverse the judgment of the
Court of Appeals and remand this cause with directions.
BACKGROUND
The appellants are Mickey C. Skinner and Jean M. Skinner,
who own a house, and Mike Skinner, who lives there. Mike
entered into a construction contract with Capitol Construction,
inc., the appellee, to replace the appellants’ roof. Disagreements
ensued, and the appellee sued in county court for money dam-
ages. eventually, judgment was entered for the appellee in
the amount of $5,698.38. The appellants filed a timely appeal
to the district court, through new counsel. On November 26,
2007, the district court sent a progression letter to the appel-
lants’ trial counsel, who neither replied nor informed appellate
counsel of the letter. On January 8, 2008, the district court
entered an order dismissing the appeal.
On January 14, 2008, the appellants filed a motion to rein-
state the appeal, alleging that the clerk of the district court had
mistakenly sent all notices to the appellants’ previous attorney
instead of their appellate counsel of record. On April 24, the
district court entered an order denying the motion to reinstate.
The appellants appealed to the Court of Appeals. in their appel-
late brief, the only issue raised was that the district court erred
in deciding not to reinstate the appeal. in other words, the
appellants did not seek to appeal from the January 8 order—
they sought to appeal from the April 24 order. Nonetheless,
the Court of Appeals dismissed the appeal, concluding that the
appeal was untimely because it was not filed within 30 days
of the January 8 order.1 We granted the appellants’ petition for
further review and ordered the appeal to be submitted without
oral argument.2
1 Capitol Construction v. Skinner, 17 Neb. App. 662, 769 N.W.2d 792
(2009).
2 See Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008).
420 	279 NeBRASKA RePORTS

ASSiGNMeNT OF eRROR
The 	appellants 	assign, 	consolidated, 	that 	the 	Court 	of
Appeals erred in holding that it did not have jurisdiction over
their appeal from the April 24, 2008, 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 inde-
pendent of the lower court’s decision.3
ANALySiS
The starting point for our analysis of this appeal is our
recent decision in State v. Hausmann.4 in Hausmann, the
defendant was convicted in the county court of being a minor
in possession of alcohol. She appealed to the district court, but
the district court dismissed the appeal on September 10, 2007,
because the transcript was inadequate. On September 28, the
defendant filed a motion to vacate the dismissal and permit the
record to be corrected. The district court granted the motion on
October 5. A supplemental transcript was filed, and on October
22, the court entered an order affirming the county court judg-
ment. On November 21, the defendant appealed to the Court
of Appeals.
The Court of Appeals dismissed the appeal as untimely
filed.5 The court held that the district court had no power,
when sitting as an appellate court, to rehear its own decisions.
Therefore, the court reasoned that the district court’s original
order of dismissal had been final and appealable and that the
defendant’s notice of appeal—filed more than 30 days after
that order—was untimely.6
We reversed the decision of the Court of Appeals.7 We
began by noting the difference between two related, but
3 Reed v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009).
4 State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
5 See State v. Hausmann, 17 Neb. App. 195, 758 N.W.2d 54 (2008),
reversed, Hausmann, supra note 4.
6 Hausmann, supra note 5.
7 Hausmann, supra note 4.
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distinct issues: whether the district court, sitting as an appel-
late 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 tak-
ing an appeal. We explained that it is not the entry of a final,
appealable order that divests the district court of jurisdic-
tion over the appeal—rather, the district court is divested
of jurisdiction to a higher appellate court when an appeal is
perfected, or to the county court when the county court acts
upon the district court’s mandate. And we held that a district
court sitting as an appellate court has the 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.8 We empha-
sized, however, that
in the absence of an applicable 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.9
But because the district court in that case had not lost jurisdic-
tion, and had granted the motion to vacate the final order, we
concluded that the notice of appeal was timely.
The 	Court 	of 	Appeals 	addressed 	the 	applicability 	of
Hausmann10 in its decision in this case. The Court of Appeals
concluded that it lacked jurisdiction over the January 8, 2008,
dismissal and framed the issue as whether it had jurisdiction
to consider the April 24 denial of the motion to vacate, given
that the notice of appeal was filed within 30 days of that rul-
ing. The Court of Appeals noted that “the district court did not
8 Id., citing Neb. Rev. Stat. § 25-2001(1) (Reissue 2008).
9 Hausmann, supra note 4, 277 Neb. at 827, 765 N.W.2d at 225.
10 Hausmann, supra note 4.
422 	279 NeBRASKA RePORTS

modify its dismissal” and that “certainty and finality of orders
for appeal purposes are desirable.”11 And “[t]hose factors,
coupled with the Supreme Court’s clear directive in Hausmann
that the litigant must within 30 days either achieve the modi-
fication he or she seeks or file an appeal,” led the Court of
Appeals to conclude that once the 30 days in which to appeal
had run, without either the filing of a notice of appeal or a rul-
ing on the motion to modify, the motion to vacate became akin
to a “‘motion to reconsider’” that did not extend the time in
which to appeal.12
[2,3] But the Court of Appeals may have overlooked the
basis for our conclusion in Hausmann,13 which made clear that
a district court sitting as an appellate court has the same power
to reconsider its orders, both inherently and under § 25-2001,
as it does when it is a court of original jurisdiction. And more
importantly, an order denying a motion to vacate or modify a
final order is itself a final, appealable order.14 Such an order
affects a substantial right upon a summary application in an
action after judgment,15 and we have repeatedly decided such
appeals on the merits of the motion to vacate.16
11 Capitol Construction, supra note 1, 17 Neb. App. at 668, 769 N.W.2d at
797.
12 Id.
13 Hausmann, supra note 4.
14 See Pep Sinton, Inc. v. Thomas, 174 Neb. 508, 118 N.W.2d 621 (1962).
Cf., Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993); Vacca v.
DeJardine, 213 Neb. 736, 331 N.W.2d 516 (1983); Jones v. Nebraska Blue
Cross Hospital Service Assn., 175 Neb. 101, 120 N.W.2d 557 (1963).
15 See Neb. Rev. Stat. § 25-1902 (Reissue 2008).
16 See, e.g., Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003);
Nye v. Fire Group Partnership, 263 Neb. 735, 642 N.W.2d 149 (2002);
Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448, 558 N.W.2d 531
(1997), overruled on other grounds, Hornig v. Martel Lift Systems, 258
Neb. 764, 606 N.W.2d 764 (2000); Andersen v. American Family Mut. Ins.
Co., 249 Neb. 169, 542 N.W.2d 703 (1996); Roemer v. Maly, 248 Neb.
741, 539 N.W.2d 40 (1995); Welch v. Welch, 246 Neb. 435, 519 N.W.2d
262 (1994); Aetna Cas. & Surety Co. v. Dickinson, 216 Neb. 660, 345
N.W.2d 8 (1984).
CAPiTOL CONSTRUCTiON v. SKiNNeR 	423
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Andersen v. American Family Mut. Ins. Co.17 illustrates those
principles at work. in Andersen, a judgment was entered for
the plaintiff on November 30, 1993, and the defendant filed a
motion to amend the judgment or for an order nunc pro tunc
on January 31, 1994. The motion to amend or for an order
nunc pro tunc was overruled on the same day, and the defend-
ant appealed. The defendant assigned errors with respect to
both the November 30 judgment and the January 31 denial of
its motion.
We refused to consider the defendant’s assignments of error
with respect to the November 30, 1993, judgment, reason-
ing that the defendant “apparently seeks to use the denial of
its motion to amend or for an order nunc pro tunc to gain
appellate review of the November 30, 1993, trial court order.
This [the defendant] is not permitted to do.”18 We refused to
review the November 30 judgment on jurisdictional grounds.
instead, we addressed “only whether the trial court erred in
denying [the defendant’s] January 31, 1994, motion to amend
the trial court’s journal entry or for an order nunc pro tunc.”19
We found that the criteria for modifying a judgment set forth
in § 25-2001 were not satisfied and that a nunc pro tunc
order would not have been proper, so we affirmed the January
31 order.20
Similarly, in this case, the Court of Appeals did not have
jurisdiction to consider an appeal challenging the merits of
the January 8, 2008, dismissal. But it did have jurisdiction to
consider the merits of the April 24 order denying the motion
to reinstate—in other words, to consider whether the appel-
lants demonstrated that their appeal should be reinstated due
to the alleged error of the clerk of the district court. And that
is all the appellants asked. in Hausmann, we emphasized that
if the district court does not grant a motion to reconsider an
appellate decision, “a notice of appeal must be filed within 30
17 Andersen, supra note 16.
18 Id. at 171, 542 N.W.2d at 705.
19 Id.
20 See id. See, also, Thrift Mart, supra note 16.
424 	279 NeBRASKA RePORTS

days of the entry of the earlier final order if the party intends
to appeal it”—in other words, if the party intends to appeal the
earlier final order.21 The Court of Appeals erred in extending
Hausmann to preclude an appeal from an order denying recon-
sideration, if that later order is based upon grounds that make
it independently final and appealable and the merits of that
order are the issue raised on appeal. And as a result, the Court
of Appeals erred in concluding that appellate jurisdiction was
lacking in this case.
[4] Upon reversing a decision of the Court of Appeals, we
may consider, as we deem appropriate, some or all of the
assignments of error the Court of Appeals did not reach.22
As noted above, the appellants’ brief to the Court of Appeals
generally assigned that the district court erred in refusing to
reinstate their appeal.
But appellate review of the district court’s decision is com-
plicated by the fact that neither the court’s order, nor anything
in the record, reflects the basis of the court’s refusal to rein-
state the appeal. This is particularly problematic given that the
record establishes beyond reasonable dispute that the court’s
progression order was not sent to the appellants’ appellate
counsel. The appellants represent—and we have no reason to
disbelieve—that the court did not believe it had jurisdiction to
reinstate an appeal. This would not be surprising, because we
had not yet decided Hausmann and a fair reading of the law at
that time would have suggested to the district court that it had
no such authority.23
in any event, we find it difficult to review the district court’s
exercise of its discretion when the basis for its decision is not
reflected by the record, and it is not at all clear that the district
court considered the appellants’ motion on its merits. Under
the circumstances, we conclude that it is appropriate to remand
this cause to the district court for further proceedings in light
21 See Hausmann, supra note 4, 277 Neb. at 827, 765 N.W.2d at 225.
22 See Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).
23 See, e.g., State v. Dvorak, 254 Neb. 87, 574 N.W.2d 492 (1998), disap-
proved, Hausmann, supra note 4.
CAPiTOL CONSTRUCTiON v. SKiNNeR 	425
Cite as 279 Neb. 419

of our decision in Hausmann24 and the principles articulated in
this opinion.
CONCLUSiON
The Court of Appeals erred in concluding it lacked jurisdic-
tion over this appeal, because the appellants’ notice of appeal
was filed within 30 days of the final, appealable April 24,
2008, order from which they sought to appeal. And we con-
clude that the cause should be remanded to the district court for
further proceedings. Therefore, we reverse the judgment of the
Court of Appeals and remand the cause to the Court of Appeals
with directions to remand the cause to the district court for
further proceedings.
reversed and reManded with direCtions.
24 Hausmann, supra note 4.
traCfone wireless , inC., appellant, v. nebraska publiC
serviCe C oMMission, appellee .
778 N.W.2d 452
Filed February 12, 2010. 	No. S-08-1109.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 & Supp.
2009), may be reversed, vacated, or modified by an appellate court for errors
appearing on the record. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
2. Administrative Law: Statutes: Appeal and Error. The meaning of a statute
is a question of law, and a reviewing court is obligated to reach its conclusion
independently of the court below and the administrative agency.
3. Statutes: Appeal and Error. When construing a statute, an appellate court
must look to the statute’s purpose and give to the statute a reasonable construc-
tion which best achieves that purpose, rather than a construction which would
defeat it.
4. Statutes: Intent: Appeal and Error. in construing a statute, an appellate court
looks to the statutory objective to be accomplished, the evils and mischiefs sought
to be remedied, and the purpose to be served.
426 	279 NeBRASKA RePORTS