Big John's Billiards v. State

amendments, we conclude that a suit to recover unconstitu-
tional taxes cannot be brought under § 77-1735. Trumble filed
suit outside the tax year in which the challenged taxes were
levied or assessed, so the district court did not have jurisdiction
under § 25-21,149. Since the district court lacked jurisdiction,
it properly dismissed the action. The judgment of the district
court is affirmed.
A ffirmed.
G errArd, J., not participating in the decision.
miller-lermAn, J., not participating.
BiG John’s BilliArds , inc., Appellee And
cross -AppellAnt, v. stAte of neBrAskA et Al .,
AppellAnts And cross -Appellees.
811 N.W.2d 205
Filed March 16, 2012. 	No. S-11-077.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. 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.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
5. Jurisdiction: Appeal and Error. If the court from which an appeal was taken
lacked jurisdiction, then the appellate court acquires no jurisdiction.
6. Jurisdiction: Final Orders: Appeal and Error. The first step in determining the
existence of appellate jurisdiction is to determine whether the lower court’s order
was final and appealable.
7. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court may review are (1) an
order that affects a substantial right and that determines the action and prevents
a judgment, (2) an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right made on summary
application in an action after a judgment is rendered.
8. Summary Judgment. A summary judgment motion does not invoke a special
proceeding. Instead, a summary judgment proceeding is a step in the over-
all action.
496 	283 NeBRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

9. Summary Judgment: Appeal and Error. orders granting partial summary judg-
ment are not appealable unless the order affects a substantial right and, in effect,
determines the action and prevents a judgment.
10. Final Orders: Appeal and Error. To be a final order under the first category of
Neb. Rev. Stat. § 25-1902 (Reissue 2008), the order must dispose of the whole
merits of the case and leave nothing for the court’s further consideration.
11. Final Orders: Words and Phrases. A substantial right under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008) is an essential legal right.
12. Final Orders: Appeal and Error. A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing a claim or
defense that was available to an appellant before the order from which an appeal
is taken.
13. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Reissue 2008)
include those legal rights that a party is entitled to enforce or defend.
14. ____. An order that completely disposes of the subject matter of the litigation
in an action or proceeding both is final and affects a substantial right because it
conclusively determines a claim or defense.
15. Summary Judgment: Final Orders. partial summary judgments are usually
considered interlocutory. They must ordinarily dispose of the whole merits of the
case to be considered final.
16. Final Orders. An order resolving all the issues raised in an independent special
proceeding is a final, appealable order.
17. Constitutional Law: Statutes: Moot Question: Final Orders. If a plaintiff’s
other claims in an action are rendered moot by the court’s ruling that a statute is
unconstitutional, the trial court’s order completely disposes of the subject matter
of the litigation. Such an order both is final and affects a substantial right.
18. Final Orders: Appeal and Error. The primary reason for requiring a final order
to dispose of all the issues presented in an action is to avoid piecemeal appeals
arising out of the same operative facts.
19. ____: ____. To fall within the collateral order doctrine, an order must (1) conclu-
sively determine the disputed question, (2) resolve an important issue completely
separate from the merits of the action, and (3) be effectively unreviewable on
appeal from a final judgment.
Appeal from the District Court for Lancaster County: Jodi
nelson, Judge. Appeal dismissed.
Jon Bruning, Attorney General, Dale A. Comer, Lynn A.
Melson, and Natalee J. Hart for appellants.
Theodore R. Boecker, Jr., of Boecker Law, p.C., L.L.o.,
for appellee.
heAvicAn, c.J., connolly, G errArd, stephAn, mccormAck ,
and miller-lermAn, JJ.
BIG JoHN’S BILLIARDS v. STATe 	497
Cite as 283 Neb. 496

connolly, J.
SUMMARY
In this declaratory judgment action, we are asked to decide
whether certain exemptions under the Nebraska Clean Indoor
Air Act (the Act)1 are constitutional. The district court deter-
mined that the exemptions were unconstitutional. We do not
reach the issue because we conclude that the State has not
appealed from a final order.
BACkGRoUND
Big John’s Billiards, Inc. (Big John), filed this action against
the State of Nebraska, the Department of Health and Human
Services; kerry Winterer, the department’s chief executive offi-
cer; the Nebraska Liquor Control Commission; Hobart Rupe,
the commission’s executive director; and the Douglas County
Health Department (collectively the State). In its operative
complaint, Big John sought a declaration that the Act was spe-
cial legislation, violated Nebraska’s equal protection clause,
and constituted a regulatory taking. In sum, it claimed that the
Act’s exemptions granted a privilege or immunity to a select
class of businesses. It claimed that no rational basis existed
for distinguishing these businesses from other public places
or places of employment which were subject to and adversely
affected by the Act or local regulations. In addition, Big John
alleged that the Act deprived it of a property interest by pro-
hibiting it from allowing its customers to smoke. It asked for a
temporary restraining order and injunction until the issues were
decided, but the court denied that request.
The State originally moved to dismiss the complaint under
Neb. Ct. R. pldg. § 6-1112(b)(1), (2), and (7). But after Big
John filed an amended complaint, the State filed an answer,
generally denying Big John’s constitutional claims and affirm-
atively alleging that the complaint failed to state a cause of
action. The State also alleged that the court lacked subject mat-
ter jurisdiction over this action as against the state defendants.
It asked the court to dismiss the complaint with prejudice. Big
1 Neb. Rev. Stat. §§ 71-5716 to 71-5734 (Reissue 2009 & Cum. Supp.
2010).
498 	283 NeBRASkA RepoRTS

John then moved for partial summary judgment on its special
legislation claim. The State moved for summary judgment on
all issues.
The court specifically limited the hearing to the special
legislation issue raised by Big John’s motion for partial sum-
mary judgment. Nothing in the record indicates that the court
dismissed Big John’s other constitutional claims that the Act
constituted a regulatory taking and violated Nebraska’s equal
protection clause.
The court concluded that the legislative history clearly
showed that the Act’s purpose was to protect employees and
the public from secondhand smoke by eliminating smoking in
public places and places of employment—not to create sepa-
rate facilities for smokers. It determined that the exemptions
for designated hotel rooms, cigar bars, and retail cigarette
outlets directly conflicted with the Act’s public health purpose.
It also concluded that the cigar bar exemption gave those busi-
nesses an economic advantage over similar businesses. Big
John had argued that the legislative history showed that the Act
would not have passed without the exemptions. Therefore, it
argued that the court should strike down the Act in its entirety
despite its severability provision.2 But the court implicitly
rejected that argument. It concluded that the exemptions under
§ 71-5730(1), (3), and (4) were unconstitutional special legis-
lation but severable from the rest of the Act, which was still
valid. It sustained in part and in part overruled Big John’s
motion for partial summary judgment. It overruled the State’s
motions for summary judgment “on the issue of special legis-
lation.” It did not direct entry of a final judgment under Neb.
Rev. Stat. § 25-1315 (Reissue 2008).
ASSIGNMeNTS oF eRRoR
The State assigns, restated, that the court erred as follows:
(1) entertaining the parties’ motions for summary judgment
because it lacked subject matter jurisdiction as to any claims
against the state defendants;
2 See 2008 Neb. Laws, L.B. 395, § 21.
BIG JoHN’S BILLIARDS v. STATe 	499
Cite as 283 Neb. 496

(2) applying a special legislation test that focused on the
purpose of the Act instead of the purpose of the exemp-
tions; and
(3) determining that § 71-5730(1), (3), and (4) were uncon-
stitutional special legislation.
STANDARD oF ReVIeW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law.3 We independently review
questions of law decided by a lower court.4
ANALYSIS
[3,4] 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.5 Big John argues that
we lack jurisdiction over this appeal because the State did not
appeal from a final order. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken; conversely, an
appellate court is without jurisdiction to entertain appeals from
nonfinal orders.6
[5,6] Additionally, the State contends that the court lacked
subject matter jurisdiction to decide any claim raised in Big
John’s complaint. This claim also presents an issue of appellate
jurisdiction. If the court from which an appeal was taken lacked
jurisdiction, then the appellate court acquires no jurisdiction.7
But when an appeal presents these two distinct jurisdictional
issues, the first step in determining the existence of appellate
jurisdiction is to determine whether the lower court’s order was
final and appealable.8
3 Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011).
4 Id.
5 In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
6 StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271
(2011), modified on denial of rehearing 281 Neb. 978, 802 N.W.2d 420,
cert. denied ___ U.S. ___, 132 S. Ct. 1016, 181 L. ed. 2d 736 (2012).
7 Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
8 Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004).
500 	283 NeBRASkA RepoRTS

the order is not finAl
[7] Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the
three types of final orders that an appellate court may review
are (1) an order that affects a substantial right and that deter-
mines the action and prevents a judgment, (2) an order that
affects a substantial right made during a special proceeding,
and (3) an order that affects a substantial right made on sum-
mary application in an action after a judgment is rendered.9
The State contends that an order granting a motion for par-
tial summary judgment can be a final order when it affects a
substantial right. It contends that the court’s order declaring
subsections of § 77-5730 unconstitutional affected a substan-
tial right because the State has a strong interest in defend-
ing the constitutionality of state statutes. It argues that the
court’s order clearly diminished its defenses and that we
should review a partial summary judgment declaring a stat-
ute unconstitutional.
[8-10] A summary judgment motion does not invoke a spe-
cial proceeding.10 Instead, a summary judgment proceeding
is a step in the overall action.11 And as a step in an action, a
motion for summary judgment is not a summary application
made in an action after a judgment is rendered. So orders
granting partial summary judgment are not appealable unless
the order affects a substantial right and, in effect, determines
the action and prevents a judgment.12 To be a final order under
the first category of § 25-1902, the order must dispose of the
whole merits of the case and leave nothing for the court’s fur-
ther consideration.13
[11-14] A substantial right under § 25-1902 is an essential
legal right.14 And a substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing
9 In re Adoption of Amea R., supra note 5.
10 See, Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007); Cerny v.
Longley, 266 Neb. 26, 661 N.W.2d 696 (2003).
11 See, e.g., Williams, supra note 10.
12 See Cerny, supra note 10.
13 See Mumin v. Dees, 266 Neb. 201, 663 N.W.2d 125 (2003).
14 See In re Adoption of Amea R., supra note 5.
BIG JoHN’S BILLIARDS v. STATe 	501
Cite as 283 Neb. 496

a claim or defense that was available to an appellant before
the order from which an appeal is taken.15 It follows from
these principles that substantial rights under § 25-1902 include
those legal rights that a party is entitled to enforce or defend.16
Therefore, an order that completely disposes of the subject
matter of the litigation in an action or proceeding both is final
and affects a substantial right because it conclusively deter-
mines a claim or defense.
[15] obviously, partial summary judgments are usually con-
sidered interlocutory.17 They “must ordinarily dispose of the
whole merits of the case” to be considered final.18 The cases
cited by the State do not persuade us that we should treat this
order differently.
one of the cases the State relies on is Dorshorst v. Dorshorst,19
decided in 1963. That was a probate case where a party’s appeal
of a probate order to the district court was treated as a new trial
and the parties were required to file new pleadings.20 The issue
was whether the decedent’s surviving spouse was entitled to a
“widow’s allowance,” a statutory allowance for support from
the estate during administration. The district court sustained
the surviving spouse’s motions for a judgment on the pleadings
and summary judgment. But it reserved deciding the size of
the allowance.
The administrator appealed, assigning that the district court
erred in failing to rule that a prenuptial agreement precluded the
support allowance. The surviving spouse argued that we should
15 In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).
16 Compare In re Adoption of Amea R., supra note 5.
17 See, e.g., Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394
(2009); Cerny, supra note 10; O’Connor v. Kaufman, 255 Neb. 120, 582
N.W.2d 350 (1998).
18 Connelly, supra note 17, 278 Neb. at 318, 769 N.W.2d at 400. Accord,
e.g., City of Omaha v. Morello, 257 Neb. 869, 602 N.W.2d 1 (1999).
19 See Dorshorst v. Dorshorst, 174 Neb. 886, 120 N.W.2d 32 (1963).
20 See, Mitchell v. Tucker, 183 Neb. 155, 158 N.W.2d 614 (1968), overruled,
Hornung v. Hatcher, 205 Neb. 449, 288 N.W.2d 276 (1980); In re Estate
of Normand, 88 Neb. 767, 130 N.W. 571 (1911); In re Estate of Sehi, 17
Neb. App. 697, 772 N.W.2d 103 (2009).
502 	283 NeBRASkA RepoRTS

dismiss the appeal for lack of a final order. We explained the
finality of the order as follows:
The only contested issue raised by the pleadings is the
sufficiency of the antenuptial agreement as a defense to
the petition for the widow’s allowances. The judgment
of the district court finally determines that question and
is an appealable order. It affects a substantial right. Its
effect is to determine the action by preventing a judgment
for the defendants. . . . An order is final and appealable
when the substantial rights of the parties to the action
are determined, even though the cause is retained for the
determination of matters incidental thereto.21
In short, in Dorshorst, we treated the size of the allowance as
an incidental issue. But we would not analyze the finality of
the order the same way today.
[16] probate proceedings are special proceedings under
§ 25-1902’s second category of final orders.22 We will enter-
tain appeals from probate orders resolving claims for statu-
tory allowances and a surviving spouse’s elective share before
the final probate judgment is entered.23 In effect, a claimant’s
petition for these statutory rights invokes a proceeding that is
independent from the overall probate proceeding because the
claimant’s rights exist independent of any distributive interest
the claimant has in the probate estate.24 But unlike the decision
in Dorshorst, we now require the order appealed from to have
disposed of all the issues related to the claim or defense.25 This
is consistent with our recent holding that an order resolving
all the issues raised in an independent special proceeding is a
final, appealable order.26
21 Dorshorst, supra note 19, 174 Neb. at 888, 120 N.W.2d at 33.
22 See In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
23 See, e.g., In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007); In
re Estate of Jakopovic, 261 Neb. 248, 622 N.W.2d 651 (2001).
24 See Neb. Rev. Stat. §§ 30-2317, 30-2318, and 30-2322 to 30-2324 (Reissue
2008).
25 See In re Estate of Rose, supra note 23.
26 See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010).
BIG JoHN’S BILLIARDS v. STATe 	503
Cite as 283 Neb. 496

But these cases provide no support for the State’s position
that this partial summary judgment is a final order. The court’s
order did not resolve an issue that is distinct from the issues in
the overall action; it resolved one of Big John’s claims, leaving
two other claims to be decided. even under the rule stated in
Dorshorst,27 unresolved, additional claims in an action are not
incidental issues.
Similarly, the order here is not like the order that we con-
sidered in In re 1983-84 County Tax Levy.28 There, residents
and taxpayers in a Class I school district (a grade school only
district) challenged a county tax levy to support high school
education in Class III school districts as unconstitutional. The
plaintiffs also contended that the levy exceeded the county’s
needs and was made for an unlawful and unnecessary purpose.
The court ruled that the statute was unconstitutional in its
entirety, and the defendants appealed.
The plaintiffs claimed that the defendants had not appealed
from a final order because the court had determined only the
constitutional issue. We agreed that an order determining only
some of the issues in an action is ordinarily not a final order.
But we concluded that because the court determined that the
statute was unconstitutional, then in the absence of an appeal,
it would determine nonresident high school tuition under the
previous statute and have no need to determine the other chal-
lenges to the levy.
In In re 1983-84 County Tax Levy, the plaintiffs’ additional
claims were subsumed within their constitutional challenge.29
So the court’s ruling that the statute was unconstitutional ren-
dered their additional claims moot. That is, after the ruling, the
plaintiffs no longer had a legally cognizable interest in having
the trial court resolve their claims that the levy was invalid for
additional reasons.30
27 Dorshorst, supra note 19.
28 In re 1983-84 County Tax Levy, 220 Neb. 897, 374 N.W.2d 235 (1985).
29 Id.
30 Id. See, also, Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298
(2010).
504 	283 NeBRASkA RepoRTS

[17] Unless an exception applies, a court or tribunal must
dismiss a moot case.31 So if a plaintiff’s other claims in an
action are rendered moot by the court’s ruling that a statute is
unconstitutional, the trial court’s order completely disposes of
the subject matter of the litigation. Such an order both is final
and affects a substantial right.
This same mootness reasoning was implicitly applied in our
recent opinion, deciding a constitutional challenge to a com-
mon levy for the school districts in a learning community. In
Sarpy Cty. Farm Bureau v. Learning Community,32 the district
court ruled that a common levy violated Nebraska’s constitu-
tional proscription of levying property taxes for a state purpose.
It did not reach the plaintiffs’ alternative constitutional chal-
lenges to the statutory scheme. But the court’s order rendered
the remaining challenges moot. The mootness reasoning also
applies to our decision in Sarpy County v. City of Springfield,33
another case on which the State relies.
But the mootness reasoning does not apply here. It is true
that the court’s ruling rendered moot Big John’s other chal-
lenge to the same exemptions under the Act. But Big John’s
regulatory taking claim is not limited to the exemptions that
the Act gives to other persons or entities. Big John claims that
the smoking ban per se deprives it of a property interest by
reducing its customer base and, thus, the revenues its business
generates. The facts and legal arguments relevant to this claim
have not been presented or addressed, and the claim is not
moot because of the court’s special legislation ruling. The court
specifically determined that the Act’s unconstitutional exemp-
tions were severable, so Big John’s regulatory taking claim was
alive and pending when this appeal was filed.
[18] The primary reason for requiring a final order to
dispose of all the issues presented in an action is to avoid
31 Westovick, supra note 30.
32 Sarpy Cty. Farm Bureau v. Learning Community, ante p. 212, 808 N.W.2d
598 (2012).
33 Sarpy County v. City of Springfield, 241 Neb. 978, 492 N.W.2d 566
(1992).
BIG JoHN’S BILLIARDS v. STATe 	505
Cite as 283 Neb. 496

piecemeal appeals arising out of the same operative facts.34 We
conclude that the effect of this partial summary judgment does
not wholly determine the action or prevent a judgment on all
the remaining claims. Accordingly, it is not a final order.
Because the district court has not entered a final order, this
court does not have appellate jurisdiction over this appeal. We
therefore do not decide whether the district court had jurisdic-
tion over the subject matter.35
collAterAl order doctrine does
not A pply to the stAte’s
A ppeAl on the merits
The State alternatively argues that we can immediately
review the order under the collateral order doctrine because the
State raised sovereign immunity as a defense to this action. It
relies on our decision in StoreVisions v. Omaha Tribe of Neb.36
There, we held that an order denying an Indian tribe’s motion
to dismiss a breach of contract action for lack of jurisdiction
was not a final order. But because the court had denied the
tribe’s motion to dismiss on sovereign immunity grounds, we
exercised jurisdiction over the sovereign immunity issue under
the collateral order doctrine.
[19] To fall within the collateral order doctrine, an order
must (1) conclusively determine the disputed question, (2)
resolve an important issue completely separate from the merits
of the action, and (3) be effectively unreviewable on appeal
from a final judgment.37 In StoreVisions, the tribe appealed
from an order denying its motion to dismiss on sovereign
immunity grounds. Here, in contrast, the State did not renew
its motion to dismiss after Big John filed an amended com-
plaint. So the State is not appealing from an order requiring it
to litigate. It has already litigated the special legislation issue
and cannot ask us to review the merits of that claim under the
34 See, e.g., Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588
(2008).
35 See Pennfield Oil Co., supra note 8.
36 StoreVisions, supra note 6.
37 Id.
506 	283 NeBRASkA RepoRTS

collateral order doctrine. We conclude that this claim is with-
out merit.
CoNCLUSIoN
We conclude that because the district court has not entered a
final order, we lack appellate jurisdiction over this appeal. We
therefore dismiss.
A ppeAl dismissed.
G errArd, J., not participating in the decision.
WriGht, J., not participating.
in re interest of s.J., AlleGed to Be
A dAnGerous sex offender .
s.J., AppellAnt, v. mentAl heAlth BoArd of the
fourth JudiciAl district, Appellee .
810 N.W.2d 720
Filed March 16, 2012. 	No. S-11-314.
1. Mental Health: Judgments: Appeal and Error. The district court reviews the
determination of a mental health board de novo on the record. In reviewing a
district court’s judgment, an appellate court will affirm unless it finds, as a matter
of law, that clear and convincing evidence does not support the judgment.
2. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. on questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
4. Due Process. The Due process Clause applies when government action deprives
a person of liberty or property; accordingly, when there is a claimed denial of due
process, a court must consider the nature of the individual’s claimed interest.
5. ____. A claim that one is being deprived of a liberty interest without due process
of law is typically examined in three stages. The question in the first stage is
whether there is a protected liberty interest at stake. If so, the analysis proceeds
to the second stage, in which it is determined what procedural protections are
required. Upon the resolution of that issue, the analysis moves on to the third and
final stage, in which the facts of the case are examined to ascertain whether there
was a denial of that process which was due.
6. Due Process: Mental Health: Convicted Sex Offender. A liberty interest is
implicated if a subject is committed to inpatient treatment pursuant to the Sex
offender Commitment Act.
IN Re INTeReST oF S.J. 	507
Cite as 283 Neb. 507