Wooden v. County of Douglas

J ohn wooden And C onnie wooden , husbAnd And wife ,
AppellAnts , v . C ounty of douglAs , A politiCAl
subdivision of the stAte of
nebrAsKA, Appellee .
744 N.W.2d 262
Filed January 22, 2008. 	No. A-06-1163.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent from that of the
trial court.
2. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exer-
cise its subject matter jurisdiction to adjudicate the merits of a claim, issue, or
question, an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
3. Eminent Domain: Appeal and Error. The manner of perfecting an appeal to the
district court from an award by appraisers in a condemnation proceeding is fixed
by Neb. Rev. Stat. § 76-715.01 (Reissue 2003).
4. Eminent Domain: Notice: Affidavits: Time: Appeal and Error. According to
Neb. Rev. Stat. § 76-715.01 (Reissue 2003), proof of service of the notice of
appeal shall be made by an affidavit of the appellant filed with the court within
5 days after the filing of the notice of appeal, stating that such notice of appeal
was duly mailed or that after diligent search the addresses of such persons or their
attorneys of record are unknown.
5. Eminent Domain: Notice: Affidavits: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 76-715.01 (Reissue 2003), timely filing of the affidavit of mailing notice
is required.
6. Eminent Domain: Jurisdiction: Appeal and Error. The right to appeal is statu-
tory, and the requirements of Neb. Rev. Stat. § 76-715.01 (Reissue 2003) are man-
datory and must be complied with before the appellate court acquires jurisdiction
of the subject matter of the action.
7. Jurisdiction: Appeal and Error. It is fundamental that an appellate court can-
not pass on the merits of a case falling within its appellate jurisdiction unless its
jurisdiction is invoked in the manner prescribed by statute.
Appeal from the District Court for Douglas County: J ohn d.
hArtigAn , J r ., Judge. Affirmed.
William E. Pfeiffer, of Raynor, Rensch & Pfeiffer, for
appellants.
Donald W. Kleine, Douglas County Attorney, and Bernard J.
Monbouquette for appellee.
irwin , sievers, and moore, Judges.
336 	16 NEBRASKA APPELLATE REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

sievers, Judge.
John Wooden and Connie Wooden appeal from the decision
of the district court for Douglas County dismissing their appeal
of condemnation proceedings commenced by the County of
Douglas (County) for lack of subject matter jurisdiction. We
affirm. Pursuant to our authority under Neb. Ct. R. of Prac.
11B(1) (rev. 2006), we have ordered this case submitted for
decision without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is unnecessary to the disposition of
this case. Therefore, we limit our discussion to the procedural
aspects of this case. The report and award of the appraisers
was filed with the county court for Douglas County on August
17, 2005. On September 9, the Woodens filed with the county
court their notice of intent to appeal the report and award of
the appraisers to the district court. The Woodens filed their
“Affidavit of Mailing of Notice” with the district court for
Douglas County on September 21.
On July 20, 2006, the County filed a motion to dismiss the
Woodens’ “‘pending legal action,’” alleging in part that the
district court lacked subject matter jurisdiction. In an order
filed September 19, the district court found that it did in fact
lack personal and/or subject matter jurisdiction, and granted the
County’s motion to dismiss. The Woodens now appeal from the
district court’s order.
ASSIGNMENT OF ERROR
The Woodens allege, restated, that the district court erred in
granting the County’s motion to dismiss the Woodens’ condem-
nation appeal to the district court.
STANDARD OF REVIEW
[1,2] When a jurisdictional question does not involve a fac-
tual dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent
from that of the trial court. White v. White, 271 Neb. 43, 709
N.W.2d 325 (2006). When a lower court lacks the authority to
exercise its subject matter jurisdiction to adjudicate the merits
of a claim, issue, or question, an appellate court also lacks the
WOODEN v. COUNTY OF DOUGLAS 	337
Cite as 16 Neb. App. 336

power to determine the merits of the claim, issue, or question
presented to the lower court. Roubal v. State, 14 Neb. App. 554,
710 N.W.2d 359 (2006).
ANALYSIS
[3,4] The manner of perfecting an appeal to the district
court from an award by appraisers in a condemnation proceed-
ing is fixed by Neb. Rev. Stat. § 76-715.01 (Reissue 2003).
Radil v. State, 182 Neb. 291, 154 N.W.2d 466 (1967). Section
76-715.01 provides:
The party appealing from the award for assessment of
damages by the appraisers in any eminent domain action
shall, within thirty days of the filing of the award, file a
notice of appeal with the court, specifying the parties tak-
ing the appeal and the award thereof appealed from, and
shall serve a copy of the same upon all parties bound by
the award or upon their attorneys of record. Service may be
made by mail, and proof of such service shall be made by
an affidavit of the appellant filed with the court within five
days after the filing of the notice stating that such notice
of appeal was duly mailed or that after diligent search
the addresses of such persons or their attorneys of record
are unknown.
The report and award of the appraisers was filed on August
17, 2005. The Woodens filed their notice of intent to appeal
the report and award of the appraisers on September 9. Thus,
the Woodens did file their notice of intent to appeal within
30 days of the filing of the award by the appraisers. however,
the Woodens did not file their affidavit of mailing notice until
September 21 	12 days after the filing of the notice of appeal.
Thus, the Woodens did not file their affidavit within 5 days after
the filing of the notice of appeal as required by § 76-715.01.
[5-7] While compliance with the requirement of timely filing
the affidavit of mailing notice pursuant to § 76-715.01 has not
been the subject of prior appellate litigation in Nebraska, we find
that such timely compliance is required. “The right to appeal is
statutory and the requirements of the statute are mandatory
and must be complied with before the appellate court acquires
jurisdiction of the subject matter of the action.” Radil v. State,
338 	16 NEBRASKA APPELLATE REPORTS

182 Neb. at 293, 154 N.W.2d at 468. And, “[i]t is fundamental
that an appellate court cannot pass on the merits of a case falling
within its appellate jurisdiction unless its jurisdiction is invoked
in the manner prescribed by statute.” Id.
CONCLUSION
Because the Woodens failed to comply with the 5-day require-
ment of § 76-715.01 for timely filing the affidavit of mailing
notice, neither the district court nor this court has subject matter
jurisdiction over the action. The order of the district court dis-
missing the Woodens’ appeal of the condemnation proceedings
commenced by the County is hereby affirmed.
We do not address the Woodens’ additional assignments and
arguments, because they are not necessary to our analysis. See
Jackson v. Brotherhood’s Relief & Comp. Fund, 273 Neb. 1013,
734 N.W.2d 739 (2007) (appellate court is not obligated to
engage in analysis which is not needed to adjudicate case and
controversy before it).
A ffirmed .
stAte of nebrAsKA, Appellee , v .
C hristopher petersen , AppellAnt .
744 N.W.2d 266
Filed January 22, 2008. 	No. A-07-179.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence. Such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence, viewed and construed most favorably to the State, is suf-
ficient to support the conviction.
2. ____: ____: ____. When reviewing a criminal conviction for sufficiency of the
evidence to sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
3. Statutes. The meaning of a statute is a question of law.
STATE v. PETERSEN 	339
Cite as 16 Neb. App. 339