Tlamka v. Parry

right to recover or as to the amount of such recovery, the claim
is considered to be unliquidated and prejudgment interest is not
allowed. Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb.
283, 329 N.W.2d 97 (1983).
Schlichtman claims that the damages in this case were not
liquidated, because they could not be computed with exactness;
however, for the same reason that Schlichtman’s motion for
judgment notwithstanding the verdict was rightfully successful—
because reasonable minds could arrive at only one conclusion
regarding damages with respect to the insurance policy—Jacob’s
damages were liquidated on the policy. The only credible evi-
dence of Jacob’s damages is the cash value Schlichtman received
for his life insurance policy. That amount was determinable with
exactness, and Jacob’s entitlement to damages was determined
as a matter of law on a motion for summary judgment, a deter-
mination not challenged on appeal. Therefore, because liability
was not in dispute, nor was the amount of damages on the
life insurance policy, prejudgment interest was appropriate in
this case.
CONCLUSION
For the reasons stated above, we affirm the decision of the
district court.
A ffirmed .
gerAld tlAmkA, AppellAnt , v .
nicholAS pArry et Al ., AppelleeS.
751 N.W.2d 664
Filed June 17, 2008. 	No. A-07-412.
1. Jurisdiction. Subject matter jurisdiction is a question of law for the court.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power
to hear a case.
4. Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any
party or by the court sua sponte.
TLAmkA v. PARRY 	793
Cite as 16 Neb. App. 793
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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5. Jurisdiction: Appeal and Error. If the court from which an appeal was taken
lacked jurisdiction, the appellate court acquires no jurisdiction.
6. Administrative Law: Jurisdiction: Appeal and Error. Where a district court
has statutory authority to review an action of an administrative agency, the district
court may acquire jurisdiction only if the review is sought in the mode and manner
and within the time provided by statute.
7. ____: ____: ____. The filing of the petition and the service of summons are the two
actions that are necessary to establish jurisdiction pursuant to the Administrative
Procedure Act.
8. Administrative Law: Parties: Appeal and Error. An agency which is charged
with the responsibility of protecting the public interest, as distinguished from deter-
mining the rights of two or more individuals in a dispute before such agency, is a
necessary or indispensable party in a judicial review of an order of an administra-
tive agency.
9. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
10. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of a trial court is correct, although such correctness is based on a
ground or reason different from that assigned by the trial court, an appellate court
will affirm.
Appeal from the District Court for Lancaster County: J ohn A.
colborn, Judge. Affirmed.
Gerald Tlamka, pro se.
Jon bruning, Attorney General, and matthew A. Works for
appellees.
S ieverS, moore, and cASSel, Judges.
cASSel, Judge.
INTRODUCTION
After an administrative tribunal denied custodial reclassi-
fication to inmate Gerald Tlamka, he sought judicial review
under the Administrative Procedure Act (APA), Neb. Rev. Stat.
§§ 84-901 to 84-920 (Reissue 1999 & Cum. Supp. 2006),
initially naming as defendants only certain employees of the
Nebraska Department of Correctional Services (DCS). because
Tlamka failed to timely include DCS—a necessary party under
the APA—the district court lacked jurisdiction and we, in turn,
lack jurisdiction of the instant appeal.
794 	16 NEbRASkA APPELLATE REPORTS

bACkGROUND
Tlamka was convicted in 1994 of felony motor vehicle homi-
cide and driving under a revoked license and was sentenced to
imprisonment in the custody of DCS. Tlamka anticipates man-
datory release in 2011. In June 2006, Tlamka applied for and
was denied reclassification from “minimum custody” to “com-
munity custody.” Tlamka pursued all remaining administrative
appeals, which were exhausted by an order rendered on July 20.
The precise date of service of the final administrative decision
does not appear in our record. however, Tlamka’s petition to
the district court admitted that the DCS order was received on
July 22. It necessarily follows that service was accomplished
sometime between July 20 and 22, which is sufficiently precise
to address the issue before us.
On August 21, 2006, Tlamka filed a petition for judicial
review under the APA, naming as defendants only Nicholas
Parry, brad Exstrom, Dennis bakewell, Frank hopkins, and
Robert houston, all of whom are employees of DCS. On
November 20, Tlamka filed an amended petition adding DCS
as an additional defendant. On January 17, 2007, the employ-
ees filed a motion to dismiss, based upon Neb. Ct. R. of Pldg.
in Civ. Actions 12(b)(1) and (6) (rev. 2003). On February 14,
the district court conducted a telephonic hearing, at which it
received no evidence, but heard arguments and took the matter
under advisement.
The court’s judgment, styled as an order, was entered on
march 29, 2007. The court determined that it lacked jurisdiction
over Tlamka’s APA appeal, reasoning that Tlamka had no legal
rights or privileges, constitutional or otherwise, to a specific
custody classification and that therefore, Tlamka presented no
“[c]ontested case” within the meaning of § 84-901(3). The court
sustained the motion to dismiss.
Tlamka timely appeals.
ASSIGNmENT OF ERROR
Tlamka’s sole assignment of error asserts that the district
court erred in dismissing the action for lack of jurisdiction.
TLAmkA v. PARRY 	795
Cite as 16 Neb. App. 793

STANDARD OF REVIEW
[1,2] Subject matter jurisdiction is a question of law for the
court. Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).
When reviewing questions of law, an appellate court has an obli-
gation to resolve the questions independently of the conclusion
reached by the trial court. Fokken v. Steichen, 274 Neb. 743, 744
N.W.2d 34 (2008).
ANALYSIS
The appellees’ brief raises a new jurisdictional claim—
asserting that Tlamka’s failure to include DCS in the initial peti-
tion for judicial review constitutes a defect depriving the district
court of subject matter jurisdiction, which in turn deprives this
court of jurisdiction. We agree.
[3-5] We first recall some general principles regarding subject
matter jurisdiction. Subject matter jurisdiction is a court’s power
to hear a case. State ex rel. Lamm v. Nebraska Bd. of Pardons,
260 Neb. 1000, 620 N.W.2d 763 (2001). Lack of subject matter
jurisdiction may be raised at any time by any party or by the
court sua sponte. Betterman v. Department of Motor Vehicles,
273 Neb. 178, 728 N.W.2d 570 (2007). If the court from which
an appeal was taken lacked jurisdiction, the appellate court
acquires no jurisdiction. Anderson v. Houston, 274 Neb. 916,
744 N.W.2d 410 (2008).
[6] Where a district court has statutory authority to review an
action of an administrative agency, the district court may acquire
jurisdiction only if the review is sought in the mode and man-
ner and within the time provided by statute. Nebraska Dept. of
Health & Human Servs. v. Weekley, 274 Neb. 516, 741 N.W.2d
658 (2007); Essman v. Nebraska Law Enforcement Training Ctr.,
252 Neb. 347, 562 N.W.2d 355 (1997). In the case before us, we
must determine whether the district court lacked subject matter
jurisdiction because Tlamka failed to seek review in such mode
and manner and within such time as provided by statute.
[7] The filing of the petition and the service of summons are
the two actions that are necessary to establish jurisdiction pur-
suant to the APA. See, Essman v. Nebraska Law Enforcement
Training Ctr., supra; James v. Harvey, 246 Neb. 329, 518
N.W.2d 150 (1994).
796 	16 NEbRASkA APPELLATE REPORTS

As this court explained in Northern States Beef v. Stennis, 2
Neb. App. 340, 509 N.W.2d 656 (1993), in order to perfect an
appeal under the APA, the party instituting the proceedings for
review must file a petition in the district court for the county
where the action is taken within 30 days after the service of the
final decision by the agency, and cause summons to be served
within 30 days of the filing of the petition.
DCS was a necessary and indispensable party to the proceed-
ing for judicial review. Section 84-917(2)(a) prescribes the par-
ties which must be included in the petition:
All parties of record shall be made parties to the proceed-
ings for review. If an agency’s only role in a contested case
is to act as a neutral factfinding body, the agency shall not
be a party of record. In all other cases, the agency shall be
a party of record.
[8] An agency which is charged with the responsibility of
protecting the public interest, as distinguished from determining
the rights of two or more individuals in a dispute before such
agency, is a necessary or indispensable party in a judicial review
of an order of an administrative agency. See, Beatrice Manor v.
Department of Health, 219 Neb. 141, 362 N.W.2d 45 (1985);
Leach v. Dept. of Motor Vehicles, 213 Neb. 103, 327 N.W.2d
615 (1982). DCS is charged with protecting the public interest
from persons convicted of crime, and as part of this responsibil-
ity, it classifies offenders. Thus, Tlamka’s petition for review
must make DCS a party. The initial petition did not.
The statutory requirement of timeliness requires that neces-
sary parties to an APA proceeding be included in a timely peti-
tion. Section 84-917(2)(a) requires the petition to be filed with
the district court “within thirty days after the service of the final
decision by the agency.” We assume that Tlamka’s allegation of
service on July 22, 2006, was correct and, thus, that the initial
petition filed on August 21 was timely. however, the initial peti-
tion failed to timely designate DCS as a party.
This jurisdictional flaw becomes even more apparent when
we consider the other requirement for district court jurisdic-
tion—service of the summons within 30 days of filing the peti-
tion. Section 84-917(2)(a) states, “Summons shall be served
within thirty days of the filing of the petition . . . .” While our
TLAmkA v. PARRY 	797
Cite as 16 Neb. App. 793

record does not include the summonses, it is obvious that no
summons could have been issued to DCS until it had been made
a party, which did not occur until November 20, 2006. Section
84-917(2)(a) required the summons to be served by September
20 (30 days after the petition was filed on August 21). The
record demonstrates that no summons could have been served
upon DCS within 30 days of the filing of the petition.
[9] Tlamka’s reply brief wholly fails to respond to DCS’ new
jurisdictional argument. While he might have argued that the
summons on DCS was served within 30 days from the filing of
the amended petition, the flaw in such argument is palpable—it
would eviscerate the requirement that the petition be filed within
30 days from the date of service of the agency decision. A court
must attempt to give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as
superfluous or meaningless. Zach v. Nebraska State Patrol, 273
Neb. 1, 727 N.W.2d 206 (2007).
CONCLUSION
[10] Tlamka failed to seek district court review in the mode
and manner and within the time provided by statute. by omit-
ting DCS as a party defendant in the initial petition, he failed to
timely petition for review as to a necessary and indispensable
party. The district court lacked subject matter jurisdiction of the
APA proceeding, and the court so held, albeit upon different
reasoning. We need not consider whether the court’s explanation
was correct. Where the record adequately demonstrates that the
decision of a trial court is correct, although such correctness is
based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm. Jessen v. Malhotra,
266 Neb. 393, 665 N.W.2d 586 (2003). We do so.
A ffirmed .
798 	16 NEbRASkA APPELLATE REPORTS