Sherman v. Neth

Ronald d. SheRman, appellant, v. BeveRly neth ,
diRectoR, neBRaSka depaRtment of
motoR vehicleS, appellee .
813 N.W.2d 501
Filed May 25, 2012. 	No. S-10-945.
1. Actions: Parties: Death: Abatement, Survival, and Revival: Statutes. Despite
the language of Neb. Rev. Stat. §§ 25-1401 and 25-1402 (Reissue 2008), which
suggests that all pending actions other than those specifically listed in the stat-
utes survive the death of a party, Nebraska case law has limited the list of those
actions which survive to exclude those which involve purely personal rights.
2. Actions: Parties: Death: Abatement, Survival, and Revival: Moot Question:
Appeal and Error. An appeal will abate where, by reason of the death of a party,
the record presents a mere abstract or moot question, the determination of which
will be of no practical benefit.
Petition for further review from the Court of Appeals,
iRwin, mooRe, and caSSel, Judges, on appeal thereto from the
District Court for Cheyenne County, deRek c. weimeR, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
Bell Island, of Island, Huff & Nichols, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and Gregory J. Walklin
for appellee.
heavican, c.J., wRight, connolly, Stephan, mccoRmack ,
and milleR-leRman, JJ.
milleR-leRman, J.
NATURE OF CASE
This case involves a civil administrative operator’s license
revocation for refusal to submit to a chemical test. The
Nebraska Department of Motor Vehicles revoked the operator’s
license of Ronald D. Sherman for 1 year, and the district court
for Cheyenne County affirmed the revocation. The Nebraska
Court of Appeals determined that the sworn report in this
case failed to confer jurisdiction on the Department of Motor
Vehicles because it did not sufficiently establish that Sherman
was on a public road or private property open to public access
SHERMAN v. NETH 	895
Cite as 283 Neb. 895
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

at the time of his arrest, and it reversed the district court’s
order. Sherman v. Neth, 19 Neb. App. 435, 808 N.W.2d 365
(2011). On February 15, 2012, we granted the petition for fur-
ther review filed by Beverly Neth, director of the Department
of Motor Vehicles (the Department). On further review, the
Department argues there is no requirement that the sworn
report establish that the driver was on a public road or private
property open to public access.
Prior to oral argument before this court, on March 30,
2012, Sherman’s attorney notified this court that Sherman died
on March 14. We conclude that because this license revoca-
tion proceeding involved a right that was purely personal to
Sherman, the action abated on Sherman’s death, and that there
is no longer a party with an interest in the resolution of this
appeal. We therefore must reverse the decision of the Court of
Appeals and remand the cause to the Court of Appeals with
directions to vacate its decision and to reverse the district
court’s order and, in addition, to remand the cause to the dis-
trict court with instructions for the district court to vacate its
order and dismiss Sherman’s appeal from the Department’s
revocation order.
STATEMENT OF FACTS
A proper sworn report confers jurisdiction on the Department
in an administrative license revocation matter. Neb. Rev. Stat.
§ 60-6,197(2) (Reissue 2010). According to the sworn report,
Sherman was “asleep behind [the] wheel with keys in ignition
& vehicle off, with open beer between legs. Subject pulled par-
rallel [sic] with east elm street.” Sherman contended that he had
not been driving. Sherman refused to take a preliminary breath
test and refused to take a chemical test at the Sidney Police
Department. The officer completed and provided to Sherman
a copy of a “Notice/Sworn Report/Temporary License” form
quoted above.
Sherman filed a petition for a hearing pursuant to Neb.
Rev. Stat. § 60-498.01 (Reissue 2010). Following the hear-
ing, the Department entered an administrative order revoking
Sherman’s operator’s license for 1 year. Sherman appealed
the revocation to the district court pursuant to Neb. Rev.
896 	283 NEBRASkA REPORTS

Stat. § 60-498.04 (Reissue 2010). After rejecting Sherman’s
argument that the Department lacked jurisdiction because the
sworn report was insufficient to establish a prima facie case,
the court affirmed the revocation. The basis of Sherman’s chal-
lenge was that the sworn report failed to sufficiently allege that
he was on a public road or private property open to the public,
which allegations are a necessary element of the intoxicated
driver enforcement scheme. See Neb. Rev. Stat. § 60-6,108
(Reissue 2010).
Sherman appealed the district court’s affirmance to the
Court of Appeals. He claimed that the district court erred
when it found that the sworn report was sufficient to confer
jurisdiction for the revocation. Although the Court of Appeals
acknowledged the absence of case law so holding, it held that
“the sworn report must contain sufficient assertions to allow
an inference that the motorist was on a public road or private
property open to public access.” Sherman v. Neth, 19 Neb.
App. 435, 440, 808 N.W.2d 365, 370 (2011). The Court of
Appeals agreed with Sherman’s argument that the assertions
in the sworn report in his case failed to sufficiently estab-
lish that he was on a public road or private property open to
public access at the time of his arrest and that therefore, the
sworn report was insufficient to confer jurisdiction on the
Department. The Court of Appeals reversed the district court’s
order and remanded the cause with directions to reverse the
revocation. Id.
We granted the Department’s petition for further review.
As noted above and discussed further below, after we granted
further review but before oral argument, we were notified of
Sherman’s death.
ASSIGNMENT OF ERROR
For its sole assignment of error on further review, the
Department asserts that the Court of Appeals erred when it
concluded that the sworn report lacked the necessary recitations
and was insufficient to vest the Department with jurisdiction
to revoke Sherman’s license. However, because of Sherman’s
death while this case was pending before this court on further
review, we do not address this issue.
SHERMAN v. NETH 	897
Cite as 283 Neb. 895

ANALYSIS
On March 30, 2012, prior to oral argument before this
court on further review, Sherman’s attorney filed a “Motion to
Dismiss Petition for Further Review for Mootness,” informing
this court that Sherman had died on March 14. The motion
included a copy of Sherman’s death certificate. We treat the
motion as a suggestion of death.
We note that neither Sherman’s attorney nor any other per-
son has filed a motion to revive the action herein or to con-
tinue the appeal. As a general matter, when a party to appel-
late proceedings dies and the party’s interest in the litigation
passes to his or her heirs, the heirs are necessary parties to the
proceedings. Urlau v. Ruhe, 63 Neb. 883, 89 N.W. 427 (1902).
However, because of the personal nature of the rights associ-
ated with a license revocation, neither Sherman’s heirs nor any
other person has a continuing interest in the disposition of this
appeal, and therefore this action appealing the revocation of
Sherman’s operator’s license abated on his death and we must
issue orders accordingly.
Nebraska statutes provide that certain types of actions sur-
vive the death of a party. Neb. Rev. Stat. § 25-322 (Reissue
2008) provides in relevant part: “An action does not abate by
the death . . . of a party . . . if the cause of action survives or
continues. In the case of the death . . . of a party, the court
may allow the action to continue by or against his or her rep-
resentative or successor in interest.” Neb. Rev. Stat. § 25-1401
(Reissue 2008) provides:
In addition to the causes of action which survive at
common law, causes of action for mesne profits, or for
an injury to real or personal estate, or for any deceit or
fraud, shall also survive, and the action may be brought,
notwithstanding the death of the person entitled or liable
to the same.
Further, Neb. Rev. Stat. § 25-1402 (Reissue 2008) provides:
“No action pending in any court shall abate by the death of
either or both the parties thereto, except an action for libel,
slander, malicious prosecution, assault, or assault and bat-
tery, or for a nuisance, which shall abate by the death of
the defendant.”
898 	283 NEBRASkA REPORTS

[1] In Bullock v. J.B., 272 Neb. 738, 741, 725 N.W.2d 401,
404 (2006), we stated that despite the language of §§ 25-1401
and 25-1402, which suggests that all pending actions other
than those specifically listed in the statutes survive the death
of a party, “Nebraska case law has limited the list of those
actions which survive to exclude those which involve purely
personal rights.” In Bullock, we noted cases in which this court
concluded that specific types of actions did not survive the
death of a party. We cited Holmberg v. Holmberg, 106 Neb.
717, 184 N.W. 134 (1921), and Williams v. Williams, 146 Neb.
383, 19 N.W.2d 630 (1945), in which this court concluded that
a divorce action did not survive the death of a party to the mar-
riage because of the personal nature of a divorce action and
because further proceedings after a party’s death would be use-
less when the death itself dissolved the marriage. We also cited
Fitzgerald v. Clarke, 9 Neb. App. 898, 621 N.W.2d 844 (2001),
in which the Nebraska Court of Appeals concluded that a suit
seeking to enjoin regulations limiting an inmate’s ownership
of personal property was personal to the inmate and did not
survive the inmate’s death.
With regard to the specific action at issue in Bullock, we
concluded that a paternity action was personal and did not
survive the death of the putative father. We reasoned that the
primary purposes of a paternity action were to establish a
parental relationship and to impose a support obligation and
that such relationship was undoubtedly personal to the puta-
tive father, because the personal representative of his estate
could not be made the child’s father nor could a support
obligation be imposed on the personal representative of his
estate. Id.
We note that courts in other jurisdictions have reached
similar conclusions regarding proceedings that involve purely
personal rights of parties who died during an appeal. In Olson
v. Com’n for Lawyer Discipline, 901 S.W.2d 520 (Tex. App.
1995), the Texas Court of Appeals concluded that the appeal
of a discipline action in which an attorney’s license was sus-
pended became moot upon the attorney’s death, because the
case was limited to personal rights and no property rights were
involved. Similarly, in Gee v. Bess, 132 S.W.2d 242, 243 (Mo.
SHERMAN v. NETH 	899
Cite as 283 Neb. 895

App. 1939), the Missouri Court of Appeals determined that an
action to determine the competency of a person to manage his
affairs abated when the person died during a pending appeal,
because the action involved “only his personal rights or sta-
tus and [did] not involve any property rights.” In State ex rel.
Turner v. Buechele, 236 N.W.2d 322, 324 (Iowa 1975), which
involved the death of a county supervisor during his appeal of
a proceeding to remove him from office, the Iowa Supreme
Court concluded that “where the subject matter of the contro-
versy is personal to the decedent the action does abate” and
that the “right to hold office is generally considered personal so
that the death of the office holder on appeal in a removal action
abates the proceeding.”
We rely on our previous reasoning and that of other courts
such as those noted above and conclude that the present action,
in which Sherman challenged the Department’s revocation of
his operator’s license, involved rights that were purely per-
sonal to Sherman and that therefore, the action did not survive
his death. The purpose of this court action was to determine
whether or not the Department properly ordered a revoca-
tion of Sherman’s license. Sherman’s right to his license was
clearly personal to him; neither the personal representative of
Sherman’s estate, Sherman’s heirs, nor any other person would
have a right to his operator’s license after his death. Further
proceedings after Sherman’s death would be useless, and we
therefore conclude that this action challenging the Department’s
revocation order abated on Sherman’s death.
[2] Because the action abated on Sherman’s death, there
is no present case or controversy upon which this court may
opine on appeal. It has been stated that “[a]n appeal will abate
where, by reason of the death of a party, the record presents
a mere abstract or moot question, the determination of which
will be of no practical benefit.” 4 C.J.S. Appeal and Error
§ 343 at 334-35 (2007). The Department argues that even
though this case is moot, we should consider the appeal under
the public interest exception to mootness. However, as the
Court of Appeals previously noted, and we agree, there exists
“no authority in Nebraska where a cause was continued upon
the death of a party pursuant to the public interest exception,”
900 	283 NEBRASkA REPORTS

and it would not be appropriate to apply the public interest
exception to mootness “to a situation where the only plaintiff
. . . died after the appeal was perfected.” Fitzgerald v. Clarke,
9 Neb. App. 898, 901-02, 621 N.W.2d 844, 847 (2001). Where
the sole party with an interest in a proceeding involving purely
personal rights dies, not only are the issues in that proceed-
ing moot but there is no longer a party to continue the litiga-
tion and there is no one with a justiciable interest who may
take that party’s place. We therefore conclude that the public
interest exception to mootness does not apply when an appeal
abates because of the death of the sole party with an inter-
est in a proceeding that involves purely personal rights of the
deceased party.
Because Sherman’s death abates this appeal, it is clear that
this court ought not consider the merits on further review or
opine on the issues raised. But because the Court of Appeals
issued an opinion, we must also determine the effect of
Sherman’s death on the court proceedings to date in this
appeal, including the Court of Appeals’ decision.
In criminal cases, we have stated that “the death of the
decedent pending appeal abates not merely the appeal, but
also the proceedings had below in the prosecution from its
inception and therefore the correct procedure is to vacate the
conviction, and reverse and remand with directions to dismiss
the indictment or information.” State v. Campbell, 187 Neb.
719, 720, 193 N.W.2d 571, 572 (1972). See, generally, Bevel
v. Comm., 282 Va. 468, 477, 717 S.E.2d 789, 794 (2011)
(reviewing current status of abatement in criminal cases in
federal and state courts when defendant dies during pending
appeal and concluding that “most courts and commentators
agree that abatement in some form is the majority position in
the federal and state courts” but recognizing minority view “to
limit or modify the application of the doctrine, or dispense
with it entirely”).
Although there is little authority, we find some authority
for a similar result in civil cases such that the death abates not
merely the appeal but also requires that outcomes in proceed-
ings below be vacated. In dissolution actions, this court has
stated that “‘where the cause of action does not survive, the
SHERMAN v. NETH 	901
Cite as 283 Neb. 895

action abates as if the death had occurred before the verdict
or interlocutory judgment or decision, unless saved by a stat-
ute.’” Williams v. Williams, 146 Neb. 383, 387, 19 N.W.2d
630, 632 (1945) (quoting Holmberg v. Holmberg, 106 Neb.
717, 184 N.W. 134 (1921)). We find no statute that saves the
instant action, and therefore the action abates as if Sherman’s
death had occurred before the district court’s judgment. As
noted above, in Olson v. Com’n for Lawyer Discipline, 901
S.W.2d 520 (Tex. App. 1995), the Texas Court of Appeals
determined that the appeal of an attorney discipline proceed-
ing became moot when the attorney died during the pendency
of the appeal. The court further concluded that not only was it
required to dismiss the appeal but that it was also “required to
set aside the judgment of the trial court and dismiss the under-
lying cause of action.” 901 S.W.2d at 525. In Gee v. Bess, 132
S.W.2d 242 (Mo. App. 1939), the trier of fact had found the
appellant to be of unsound mind, and the appellate court stated
that the “appeal duly filed acted as a supersedeas and brought
the cause to this court for final determination.” The appellate
court determined that the appeal abated on the death of the sub-
ject of the proceeding and that the judgment of the lower court
should be reversed. The appellate court remanded the cause
with orders accordingly.
We conclude that because this appeal abated on Sherman’s
death, the decision of the Court of Appeals, for which we
granted further review, as well as that of the district court,
should be vacated and that the district court should dismiss
the action.
CONCLUSION
We treat Sherman’s “Motion to Dismiss Petition for Further
Review for Mootness” as a suggestion of death and, in light
of this opinion, overrule such motion. Because of Sherman’s
death, we conclude that this appeal on further review and
Sherman’s action challenging the Department’s revocation of
his operator’s license have abated, because the proceedings
involve rights purely personal to Sherman and the action did
not survive his death. We therefore reverse the decision of the
Court of Appeals. We remand the cause to the Court of Appeals
902 	283 NEBRASkA REPORTS

with directions to vacate its decision. We also direct the Court
of Appeals to reverse the decision of the district court which
affirmed the revocation order and to remand the cause to the
district court with instructions to the district court to vacate its
order and dismiss Sherman’s action in district court.
R eveRSed and Remanded with diRectionS.
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 	903
Cite as 283 Neb. 903
ButleR county School diStRict 12-0502, alSo known
aS eaSt ButleR puBlic School diStRict, a political
SuBdiviSion of the State of neBRaSka , appellant,
and BRenda coufal , an individual ReSident
taxpayeR of ButleR county School diStRict
12-0502, alSo known aS eaSt ButleR
puBlic School diStRict, appellee , v.
fReeholdeR petitioneRS 1 thRough 10:
feRn JanSa et al ., appelleeS.
814 N.W.2d 724
Filed May 25, 2012. 	No. S-11-562.
1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a
party’s case.
2. Jurisdiction: Appeal and Error. An appellate court reviews de novo jurisdic-
tional determinations that do not involve a factual dispute.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law
that an appellate court independently reviews.
4. Standing: Jurisdiction. Standing relates to a court’s power, that is, jurisdiction,
to address issues presented and serves to identify those disputes that are appropri-
ately resolved through the judicial process.
5. ____: ____. Standing requires that a litigant have a personal stake in the outcome
of a controversy that warrants invocation of a court’s jurisdiction and justifies
exercise of the court’s remedial powers on the litigant’s behalf.
6. Standing: Claims: Parties: Proof. To have standing, a litigant must assert its
own rights and interests and demonstrate an injury in fact, which is concrete in
both a qualitative and temporal sense. The alleged injury in fact must be distinct
and palpable, as opposed to merely abstract, and the alleged harm must be actual
or imminent, not conjectural or hypothetical.
7. Standing. To have standing, a party must have some legal or equitable right, title,
or interest in the subject of the controversy.
8. Actions: Standing: Proof. Standing requires that the injury can be fairly traced
to the challenged action and is likely to be redressed by a favorable decision.