State v. Hausmann

cause of action under the Uniform Declaratory Judgments Act
because the State did not waive its sovereign immunity.
A ffirmed .
StAte of NebrASkA, Appellee , v .
A leciA m. HAuSmANN, AppellANt .
758 N.W.2d 54
Filed November 10, 2008. 	No. A-07-1229.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
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. Judgments: Jurisdiction: Final Orders: Appeal and Error. Even though an
extrajudicial act of a lower court cannot vest an appellate court with jurisdiction
to review the merits of an appeal, the appellate court has jurisdiction and, more-
over, the duty to determine whether the lower court had the power, that is, the
subject matter jurisdiction, to enter the judgment or other final order sought to
be reviewed.
3. Courts: Jurisdiction: Appeal and Error. Generally, a judgment rendered or
final order made by any tribunal, board, or officer exercising judicial functions
and inferior in jurisdiction to the district court may be reversed, vacated, or modi-
fied by the district court.
4. ____: ____: ____. When a county court acts upon a mandate issued by a district
court sitting as an appellate court, the district court loses jurisdiction over the
cause except upon a subsequent appeal.
5. Judgments: Jurisdiction. A ruling made in the absence of subject matter juris-
diction is a nullity.
6. Judgments: Jurisdiction: Appeal and Error. An appellate court lacks jurisdic-
tion to hear an appeal from a ruling that is null.
7. Courts. Vertical stare decisis compels inferior courts to follow strictly the deci-
sions rendered by courts of higher rank within the same judicial system.
Appeal from the District Court for Sarpy County, mAx
kelcH, Judge, on appeal thereto from the County Court for
Sarpy County, todd J. H uttoN, Judge. Appeal dismissed.
Patrick 	J. 	Boylan, 	Chief 	Deputy 	Sarpy 	County 	Public
Defender, and Sarah Mori, Senior Certified Law Student, for
appellant.
StAtE v. hAUSMANN 	195
Cite as 17 Neb. App. 195
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

Jon Bruning, Attorney General, and George R. Love for
appellee.
iNbody, Chief Judge, and moore and cASSel, Judges.
cASSel, Judge.
INtRODUCtION
Alecia M. hausmann appeals from a district court order
affirming 	the 	judgment 	of 	the 	county 	court 	sentencing
hausmann for minor in possession of alcohol. however, before
entering the order affirming the county court’s decision on the
merits, the district court entered an order dismissing the appeal.
hausmann then filed a motion to vacate the order of dismissal,
which the district court granted by docket entry. Because a dis-
trict court, upon making a final order while sitting as an inter-
mediate appellate court, thereafter lacks the power to rehear
a case, hausmann’s appeal to this court was untimely and we
lack jurisdiction.
BACKGROUND
On June 18, 2006, hausmann was cited for minor in pos-
session of alcohol. Before trial, hausmann moved to suppress
evidence. the county court overruled this motion and sub-
sequently found hausmann guilty on February 27, 2007, of
being a minor in possession of alcohol. the court sentenced
hausmann on June 21.
On July 2, 2007, hausmann appealed her conviction to the
district court on the grounds that the county court erred in
overruling the motion to suppress and convicting hausmann
with insufficient evidence. On September 10, the district court
issued an order dismissing hausmann’s appeal, because the
record did not include the conviction and sentencing order
from county court. Although the district court’s order stated
that hausmann had failed to provide a proper record and that
“[a]bsent a complete record, the decision of the [county] court
must be affirmed,” the order also stated that hausmann’s appeal
was “dismissed.” In addition, the September 10 order directed
the district court to “certify a copy of this order to the Sarpy
County Court and issue a Mandate upon expiration of the statu-
tory time within which to file an appeal.”
196 	17 NEBRASKA APPELLAtE REPORtS

On September 28, 2007, hausmann moved for the district
court to vacate the dismissal order and permit hausmann to
file a supplemental transcript. By a docket entry made on
October 5, the district court granted this motion. the court
later decided hausmann’s appeal on the merits. In an October
22 opinion and order, the district court affirmed the decision of
the county court.
On November 21, 2007, hausmann appealed the district
court’s decision to this court. Pursuant to Neb. Ct. R. App. P.
§ 2-107(A)(1), this court initially entered an order summarily
affirming the district court’s October 22 order. We recognized
that the bill of exceptions before us did not contain the trial
before the county court, and thus, we could not determine that
hausmann had properly preserved the suppression issue by
objecting at trial.
After entering this order, we received an additional volume
of the bill of exceptions prepared by the county court—which
contained the verbatim proceedings of the trial and had been on
file with the district court since July 18, 2007. the additional
volume showed that hausmann had properly preserved the
objection. Because the premise for our initial summary affirm-
ance was incorrect, we vacated our summary affirmance and
reinstated the appeal.
Because the State’s brief on appeal was also premised on
the failure to include the trial proceedings in the bill of excep-
tions—an incorrect premise apparently occasioned by the dis-
trict court’s initial failure to forward the volume of the bill of
exceptions—we allowed the State time to file a supplemental
brief. the State used this opportunity to raise the jurisdictional
issue that we now confront.
ASSIGNMENtS OF ERROR
Although we do not reach hausmann’s assigned errors,
we note that hausmann made three assignments of error,
which we would consolidate and restate into two issues. First,
hausmann assigns that the district court erred in affirming
the county court’s decision to overrule hausmann’s motion
to suppress. Second, hausmann alleges that the district court
StAtE v. hAUSMANN 	197
Cite as 17 Neb. App. 195

erred in finding that there was sufficient evidence to support
a conviction.
StANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual 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. State v. Ehlers, 262
Neb. 247, 631 N.W.2d 471 (2001).
ANALYSIS
the State argues that we lack jurisdiction because hausmann
did not timely appeal. the State insists that hausmann’s appeal
period began to run on September 10, 2007, when the district
court entered an order dismissing the appeal, and that the
court’s October 22 order was a nullity. the State thus con-
cludes that hausmann’s appeal filed on November 21 was
untimely. Under Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2006),
a party has 30 days from the entry of judgment to appeal the
decision of a district court unless a party has filed a motion
which tolls the appeal period. thus, if the September 10 order
was final and appealable and hausmann’s motion to vacate did
not toll the time for appeal, her appeal was untimely. We thus
consider whether the district court’s order entered on October
22 was appealable.
[2] Even if the State is correct that we lack jurisdiction
of the merits of hausmann’s appeal, we nonetheless have
jurisdiction to determine whether the district court had juris-
diction to enter its order of October 22, 2007. Even though
an extrajudicial act of a lower court cannot vest an appellate
court with jurisdiction to review the merits of an appeal, the
appellate court has jurisdiction and, moreover, the duty to
determine whether the lower court had the power, that is, the
subject matter jurisdiction, to enter the judgment or other final
order sought to be reviewed. State v. Rieger, 257 Neb. 826, 600
N.W.2d 831 (1999).
[3] In order to determine whether hausmann could appeal the
October 22, 2007, order, we must first determine whether the
district court had jurisdiction to enter this order. Specifically,
198 	17 NEBRASKA APPELLAtE REPORtS

we examine whether a district court sitting as an intermediate
appellate court may make a further disposition of a case when
it has already issued a final, appealable order pursuant to Neb.
Rev. Stat. § 25-1901 (Supp. 2007). With certain exceptions not
pertinent to the case before us, a judgment rendered or final
order made by any tribunal, board, or officer exercising judi-
cial functions and inferior in jurisdiction to the district court
may be reversed, vacated, or modified by the district court.
§ 25-1901.
Although the State identifies case law holding that a district
court may not rehear a case after entering a final order, we find
two lines of authority on this issue.
We first look to State v. Painter, 224 Neb. 905, 402 N.W.2d
677 (1987), where the Nebraska Supreme Court held that
a district court sitting as an appellate court has the power
to rehear a case after entering a final order. In Painter, the
defendant appealed his conviction to the district court and the
court affirmed. however, the district court’s order inadvertently
modified the county court’s sentence. the district court then
issued a nunc pro tunc order to correct the error. the Supreme
Court noted that a nunc pro tunc order to correct a scrivener’s
error was improper here because the judge, who actually had
the power to modify the sentence, and not a scrivener, had
erred. the Supreme Court then discussed whether a district
court sitting as an intermediate court of appeals had the power
to modify its previous final order. the Supreme Court con-
cluded that “just as the Supreme Court may, on a motion for
rehearing, timely modify its opinion, an intermediate appel-
late court may also timely modify its opinion.” Id. at 912, 402
N.W.2d at 681.
the Supreme Court’s conclusion in Painter is consistent
with general principles of law. Commentary in 5 C.J.S. Appeal
and Error § 677 at 89 (1993) explains that “[b]roadly speaking,
the power to grant rehearings is inherent in appellate courts, at
least during the term at which the case is decided.”
the Supreme Court subsequently decided a similar case
without referring to Painter. In Interstate Printing Co. v.
Department of Revenue, 236 Neb. 110, 459 N.W.2d 519
StAtE v. hAUSMANN 	199
Cite as 17 Neb. App. 195

(1990), the Supreme Court again decided that a district court
exercising appellate jurisdiction had the power to modify a
final order to correct a judicial error. In Interstate Printing
Co., the district court heard an appeal from an administrative
agency. the district court’s final order referred to an order that
the agency had issued on December 2, 1986, but the agency
had actually issued the order on July 9, 1987. the district
court then corrected this error pursuant to a motion nunc pro
tunc. the Supreme Court determined that the district court’s
initial order was a nullity because of the mistake, and could
not be corrected pursuant to a motion nunc pro tunc. the
Supreme Court found that the district court had instead modi-
fied its initial order pursuant to its power to modify a judg-
ment during the term rendered. the Supreme Court ultimately
concluded that the time for appeal would run from the time
that the amended judgment was entered.
[4] Any power that the district court may have to rehear,
however, is limited in time. the district court’s appellate juris-
diction, including any power it may have to rehear, certainly
ends when the county court acts on the district court’s mandate.
When a county court acts upon a mandate issued by a district
court sitting as an appellate court, the district court loses juris-
diction over the cause except upon a subsequent appeal. State
v. Bracey, 261 Neb. 14, 621 N.W.2d 106 (2001). thus, under
State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987), the
district court had jurisdiction to rehear hausmann’s appeal,
because the district court had not yet issued the mandate to
county court—nor had the county court had any opportunity
to take action on any mandate from the district court—as of
September 28, 2007, when hausmann moved for the district
court to vacate its previous order.
the Nebraska Supreme Court has subsequently dealt with
district court appellate jurisdiction in a different manner without
overruling Painter. In In Re Guardianship and Conservatorship
of Sim, 233 Neb. 825, 448 N.W.2d 406 (1989), the Supreme
Court decided that a district court sitting as an intermediate
appellate court could not properly hear a motion for a new trial
or rehearing. the Supreme Court’s discussion of a motion for
new trial in In re Guardianship and Conservatorship of Sim
200 	17 NEBRASKA APPELLAtE REPORtS

has no bearing on the case before us. But the Supreme Court
also addressed a motion for rehearing in the district court and
found no “authorization for a motion for rehearing in such cir-
cumstances.” Id. at 826, 448 N.W.2d at 407. thus, the Supreme
Court held that the motion for rehearing did not toll the time
for further appeal.
[5,6] Subsequently, in State v. Dvorak, 254 Neb. 87, 574
N.W.2d 492 (1998), the Supreme Court decided that a district
court sitting as an intermediate appellate court lacked subject
matter jurisdiction to hear a motion for reconsideration after
the entry of a final order. In Dvorak, the State appealed the
county court’s order to district court. the district court initially
reversed the county court’s order. Subsequently, the defendant
filed a “motion to reconsider” and the district court reversed
its previous decision and affirmed the county court’s order.
Id. at 89, 574 N.W.2d at 493. the Supreme Court determined
that the second order was void and not appealable, because the
district court was “divested of jurisdiction” upon issuing the
first order. Id. at 90, 574 N.W.2d at 494. the Supreme Court
explained that “we do not find any statute or court rule which
allows for a rehearing in the district court after the district
court has made its ruling subject to § 25-1901.” 254 Neb. at
90, 574 N.W.2d at 494. thus, under Dvorak, once a district
court exercising appellate jurisdiction enters a final order dis-
posing of a matter, it loses subject matter jurisdiction. A ruling
made in the absence of subject matter jurisdiction is a nullity.
Id. We note that an appellate court lacks jurisdiction to hear an
appeal from a ruling that is null. See State v. Rieger, 257 Neb.
826, 600 N.W.2d 831 (1999).
Recent decisions of the Nebraska Supreme Court also pre-
clude us from finding appellate jurisdiction by means of treat-
ing hausmann’s September 28, 2007, motion as a motion to
alter or amend the judgment. In Goodman v. City of Omaha,
274 Neb. 539, 742 N.W.2d 26 (2007), the Nebraska Supreme
Court rejected the contention that where the district court was
acting as an intermediate appellate court, a motion to alter
or amend the judgment, made pursuant to Neb. Rev. Stat.
§ 25-1329 (Cum. Supp. 2006), tolled the time for taking an
appeal to a higher appellate court. Very recently, the Supreme
StAtE v. hAUSMANN 	201
Cite as 17 Neb. App. 195

Court reaffirmed the Goodman decision in Timmerman v. Neth,
276 Neb. 585, 755 N.W.2d 798 (2008).
[7] Of course, we must follow the binding precedent of
the Nebraska Supreme Court. Vertical stare decisis compels
inferior courts to follow strictly the decisions rendered by
courts of higher rank within the same judicial system. Pogge v.
American Family Mut. Ins. Co., 13 Neb. App. 63, 688 N.W.2d
634 (2004). In the case before us, however, we confront con-
flicting authority. We are unable to reconcile State v. Painter,
224 Neb. 905, 402 N.W.2d 677 (1987), and Interstate Printing
Co. v. Department of Revenue, 236 Neb. 110, 459 N.W.2d 519
(1990), with In re Guardianship and Conservatorship of Sim,
233 Neb. 825, 448 N.W.2d 406 (1989), and State v. Dvorak,
254 Neb. 87, 574 N.W.2d 492 (1998). Painter and Interstate
Printing Co. expressly permit a district court sitting as an
intermediate appellate court to modify its earlier decisions,
while In re Guardianship and Conservatorship of Sim and
Dvorak expressly prohibit this. While it would seem sensible
that the district court, when it acts as an intermediate appel-
late court, should have the same ability to reconsider its own
decisions—at least during the same term of the district court
until the county court has acted on the mandate of the district
court—as do the higher appellate courts, we cannot disregard
the more recent decisions of the Nebraska Supreme Court
which state otherwise.
We 	conclude 	that 	we 	are 	constrained 	to 	follow 	In 	re
Guardianship and Conservatorship of Sim and Dvorak, both
because they were decided more recently and because the
Goodman and Timmerman decisions suggest that the Supreme
Court would adhere to the reasoning in In re Guardianship and
Conservatorship of Sim and Dvorak. Under In re Guardianship
and Conservatorship of Sim and Dvorak, the district court lost
subject matter jurisdiction over hausmann’s case once the
court entered the September 10, 2007, final order dismissing
the appeal. thus, the October 22 order was a nullity. It neces-
sarily follows that hausmann did not timely appeal from the
September 10 final order and that we cannot hear hausmann’s
appeal from the October 22 order because it was a nullity.
202 	17 NEBRASKA APPELLAtE REPORtS

CONCLUSION
We dismiss hausmann’s appeal to this court for lack of juris-
diction. the district court lacked subject matter jurisdiction to
consider hausmann’s motion for rehearing, and consequently,
the October 22, 2007, order from which she attempts to appeal
was null and void. Because she did not timely appeal from the
district court’s final order of September 10, we lack jurisdiction
of hausmann’s appeal.
A ppeAl diSmiSSed .
iN re iNtereSt of SArAH l. et Al .,
cHildreN uNder 18 yeArS of Age .
S tAte of NebrASkA, Appellee , v .
mitcHell d., AppellANt .
758 N.W.2d 48
Filed November 10, 2008. 	No. A-08-196.
1. Juvenile Courts. While Neb. Rev. Stat. § 43-285 (Reissue 2004) grants a
juvenile court discretionary power over a recommendation proposed by the
Department of health and human Services, it also grants preference in favor of
such proposal.
2. Juvenile Courts: Proof. In order for a court to disapprove of a plan proposed
by the Department of health and human Services, a party must prove by a
preponderance of the evidence that the department’s plan is not in the child’s
best interests.
Appeal from the Juvenile Review Panel, g. gleNN cAmerer ,
micHAel 	offNer , 	and 	WAdie 	tHomAS, 	Judges, 	on 	appeal
thereto from the Separate Juvenile Court of Lancaster County,
roger J. H eidemAN, Judge. Judgment of Juvenile Review
Panel affirmed.
John C. Ball, of Pollack & Ball, L.L.C., for appellant.
Gary Lacey, Lancaster County Attorney, and Alicia B.
henderson for appellee.
irWiN, S ieverS, and cArlSoN, Judges.
IN RE INtERESt OF SARAh L. Et AL. 	203
Cite as 17 Neb. App. 203