Timmerman v. Neth

daniel r. tiMMerMan , appellant , v . beverly neth ,
director , S tate of nebraSka , departMent
of M otor vehicleS, appellee .
755 N.W.2d 798
Filed September 19, 2008. 	No. S-07-648.
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. Administrative Law: Final Orders: Courts: Appeal and Error. In reviewing
final administrative orders under the Administrative Procedure Act, the district
court functions not as a trial court but as an intermediate court of appeals.
3. Courts: Pleadings: Time: Appeal and Error. When a district court is function-
ing as an intermediate court of appeals, a motion to alter or amend a judgment
does not toll the time for perfecting an appeal.
Petition for further review from the Court of Appeals,
S ieverS, irWin, and caSSel, Judges, on appeal thereto from
the District Court for Valley County, karin l. noakeS, Judge.
Judgment of Court of Appeals affirmed.
Gregory G. Jensen, P.C., L.L.o., for appellant.
Jon 	bruning, Attorney 	General, 	and 	kevin 	J. 	Edwards
for appellee.
heavican, 	C.J., 	W riGht, 	connolly, 	G errard, 	S tephan,
M ccorMack, and M iller -lerMan, JJ.
G errard, J.
The question presented in this appeal is whether a motion to
alter or amend a judgment,1 filed after a district court’s judicial
review of an administrative decision under the Administrative
Procedure Act (APA),2 tolls the time for taking an appeal from
the district court’s order.3
1 See Neb. Rev. Stat. § 25-1329 (Cum. Supp. 2006).
2 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 1999 & Cum. Supp. 2006).
3 See Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2006).
TIMMERMAN v. NETH 	585
Cite as 276 Neb. 585
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

bACkGRoUND
The 	appellant, 	Daniel 	R. 	Timmerman, 	was 	arrested
on November 30, 2006, for driving under the influence of
alcohol, and he allegedly refused to submit to a chemical
test. The Nebraska Department of Motor Vehicles (DMV)
revoked Timmerman’s operator’s license for a period of 1
year. Timmerman filed a petition for judicial review pursuant
to the APA.4 A hearing was held, and on April 24, 2007, the
district court entered an order affirming the DMV’s decision.
on April 30, Timmerman filed a motion to alter or amend the
judgment, pursuant to § 25-1329. A hearing was held, and
the district court overruled the motion in an order filed on
May 31. Timmerman filed a notice of appeal from the district
court’s order on June 8.5 The Nebraska Court of Appeals, cit-
ing our decision in Goodman v. City of Omaha,6 summarily
dismissed Timmerman’s appeal as filed out of time. We granted
Timmerman’s petition for further review.
ASSIGNMENT oF ERRoR
Timmerman assigns that the Court of Appeals erred in deter-
mining that his motion to alter or amend the judgment, filed in
the district court, did not toll the time for taking an appeal from
the district court’s order.
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.7
ANALySIS
The question presented in this appeal is whether Timmerman’s
appeal from the district court was timely. ordinarily, in order
to appeal from a judgment, decree, or final order made by the
4 See § 84-917.
5 See § 84-918(3).
6 Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).
7 VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d
651 (2007).
586 	276 NEbRASkA REPoRTS

district court, the appealing party must file a notice of appeal
in the district court within 30 days.8 but the running of the time
for filing a notice of appeal is tolled by filing a timely tolling
motion,9 such as a motion for new trial,10 motion to alter or
amend the judgment,11 or motion for judgment notwithstanding
the verdict.12 If such a motion is filed, the appealing party may
file a notice of appeal within 30 days of the court’s order ruling
on the motion.13
[2] but we have long held that a motion for new trial is
improper in a court which reviewed the decision of a lower
court or administrative agency and thus functioned not as a
trial court but as an intermediate court of appeals.14 And it is
equally well established that in reviewing final administrative
orders under the APA, the district court functions not as a trial
court but as an intermediate court of appeals.15 Thus, a motion
for new trial filed after a district court’s judicial review in an
APA proceeding is not a proper motion and does not stop the
running of time for perfecting an appeal.16
[3] We have similarly reasoned that when a district court is
functioning as an intermediate court of appeals, a motion to
8 § 25-1912(1).
9 § 25-1912(3).
10 See Neb. Rev. Stat. § 25-1144.01 (Cum. Supp. 2006).
11 See § 25-1329.
12 See Neb. Rev. Stat. § 25-1315.02 (Cum. Supp. 2006).
13 § 25-1912(3).
14 Booker v. Nebraska State Patrol, 239 Neb. 687, 477 N.W.2d 805 (1991).
See, e.g., Goodman, supra note 6; Hueftle v. Northeast Tech. Community
College, 242 Neb. 685, 496 N.W.2d 506 (1993); Interstate Printing Co. v.
Department of Revenue, 236 Neb. 110, 459 N.W.2d 519 (1990); Russell
v. Luevano, 234 Neb. 581, 452 N.W.2d 43 (1990); In re Conservatorship
of Mosel, 234 Neb. 86, 449 N.W.2d 220 (1989); In re Guardianship and
Conservatorship of Sim, 233 Neb. 825, 448 N.W.2d 406 (1989); Collection
Bureau of Lincoln v. Loos, 233 Neb. 30, 443 N.W.2d 605 (1989).
15 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007); Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818
(1997). See, also, Interstate Printing Co., supra note 14.
16 Interstate Printing Co., supra note 14.
TIMMERMAN v. NETH 	587
Cite as 276 Neb. 585

alter or amend a judgment does not toll the time for perfecting
an appeal.17 In Goodman v. City of Omaha, an appeal to the
district court from a zoning board of appeals, we held that the
district court functioned as an intermediate court of appeals,
and rejected the appellants’ argument that their motion for new
trial tolled the time for taking an appeal. but the appellants had
also filed a motion to alter or amend the judgment.
We explained that a “judgment,” for purposes of a motion to
alter or amend a judgment pursuant to § 25-1329, is “‘the final
determination of the rights of the parties in an action,’”18 or “‘a
court’s final consideration and determination of the respective
rights and obligations of the parties to an action as those rights
and obligations presently exist.’”19 Therefore, because the dis-
trict court was functioning as an intermediate court of appeals,
we determined that “[t]he order issued by the district court was
not a judgment, but, rather, was an appellate decision reviewing
the judgment rendered by the [zoning] board.”20 Accordingly,
we concluded that the appellants’ motion to alter or amend was
not an appropriate motion and did not toll the time for filing a
notice of appeal.21
In this case, Timmerman’s notice of appeal was not filed
within 30 days of the district court’s order affirming the deci-
sion of the DMV. Timmerman’s motion to alter or amend the
judgment did not toll the time for taking an appeal, because
the district court in this APA proceeding was acting as an
intermediate court of appeals. Therefore, the Court of Appeals
correctly concluded that Timmerman’s appeal to that court
was untimely.
Timmerman contends that Goodman is inapplicable to an
APA proceeding, and specifically a license revocation proceed-
ing, because the statutes relating to those proceedings refer to
17 See Goodman, supra note 6.
18 Id. at 544, 742 N.W.2d at 30, quoting Neb. Rev. Stat. § 25-1301(1) (Cum.
Supp. 2006).
19 Id., quoting Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821
(2006).
20 Id.
21 Id.
588 	276 NEbRASkA REPoRTS

a “judgment.” For example, “[a]n aggrieved party may secure
a review of any judgment rendered or final order made by
the district court under the [APA] by appeal to the Court of
Appeals.”22 And when a person appeals from the revocation of
his or her operator’s license, pursuant to the APA, the appeal
“shall suspend the order of revocation until the final judg-
ment of a court finds against the person so appealing.”23 Thus,
Timmerman contends that the decision of a district court in a
license revocation proceeding must be a “judgment” for pur-
poses of § 25-1329.
Timmerman’s argument is not unreasonable. but the word
“judgment” refers to different things in different contexts, and
is often used generally to refer to the result of any kind of
judicial decisionmaking process.24 In the specific context of
§ 25-1329, however, we have explained that a “judgment” is
the final determination of a trial court, not an appellate court.25
We do not read the APA, or § 60-498.04, as affecting our long-
established rule that the tolling motions listed in § 25-1912(3)
are ineffective when a district court is acting as an intermediate
court of appeals, or our specific holding that a “judgment,” for
purposes of § 25-1329, does not include an appellate decision
of a district court.26
The Court of Appeals correctly applied our decision in
Goodman and concluded that Timmerman’s appeal to that
court was untimely. Timmerman’s assignment of error is with-
out merit.
CoNCLUSIoN
The decision of the Court of Appeals, dismissing Timmerman’s
appeal, is affirmed.
affirMed .
22 § 84-918.
23 Neb. Rev. Stat. § 60-498.04 (Reissue 2004).
24 See, e.g., 8 The oxford English Dictionary 294-95 (2d ed. 1989).
25 See Goodman, supra note 6.
26 See id.
TIMMERMAN v. NETH 	589
Cite as 276 Neb. 585