Big John's Billiards, Inc. v. State, S–11–077.
| Decision Date | 16 March 2012 |
| Docket Number | No. S–11–077.,S–11–077. |
| Parties | BIG JOHN'S BILLIARDS, INC., appellee and cross-appellant, v. STATE of Nebraska et al., appellants and cross-appellees. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.
5. Jurisdiction: Appeal and Error. If the court from which an appeal was taken lacked jurisdiction, then the appellate court acquires no jurisdiction.
6. Jurisdiction: Final Orders: Appeal and Error. The first step in determining the existence of appellate jurisdiction is to determine whether the lower court's order was final and appealable.
7. Final Orders: Appeal and Error. Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders that an appellate court may review are (1) an order that affects a substantial right and that determines the action and prevents a judgment, (2) an order that affects a substantial right made during a special proceeding, and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered.
8. Summary Judgment. A summary judgment motion does not invoke a special proceeding. Instead, a summary judgment proceeding is a step in the overall action.
9. Summary Judgment: Appeal and Error. Orders granting partial summary judgment are not appealable unless the order affects a substantial right and, in effect, determines the action and prevents a judgment.
10. Final Orders: Appeal and Error. To be a final order under the first category of Neb.Rev.Stat. § 25–1902 (Reissue 2008), the order must dispose of the whole merits of the case and leave nothing for the court's further consideration.
11. Final Orders: Words and Phrases. A substantial right under Neb.Rev.Stat. § 25–1902 (Reissue 2008) is an essential legal right.
12. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken.
13. Final Orders. Substantial rights under Neb.Rev.Stat. § 25–1902 (2008) include those legal rights that a party is entitled to enforce or defend.
14. Final Orders. An order that completely disposes of the subject matter of the litigation in an action or proceeding both is final and affects a substantial right because it conclusively determines a claim or defense.
15. Summary Judgment: Final Orders. Partial summary judgments are usually considered interlocutory. They must ordinarily dispose of the whole merits of the case to be considered final.
16. Final Orders. An order resolving all the issues raised in an independent special proceeding is a final, appealable order.
17. Constitutional Law: Statutes: Moot Question: Final Orders. If a plaintiff's other claims in an action are rendered moot by the court's ruling that a statute is unconstitutional, the trial court's order completely disposes of the subject matter of the litigation. Such an order both is final and affects a substantial right.
18. Final Orders: Appeal and Error. The primary reason for requiring a final order to dispose of all the issues presented in an action is to avoid piecemeal appeals arising out of the same operative facts.
19. Final Orders: Appeal and Error. To fall within the collateral order doctrine, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.
Jon Bruning, Attorney General, Dale A. Comer, Lynn A. Melson, Lincoln, and Natalee J. Hart for appellants.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for appellee.
In this declaratory judgment action, we are asked to decide whether certain exemptions under the Nebraska Clean Indoor Air Act (the Act) 1 are constitutional. The district court determined that the exemptions were unconstitutional. We do not reach the issue because we conclude that the State has not appealed from a final order.
Big John's Billiards, Inc. (Big John), filed this action against the State of Nebraska, the Department of Health and Human Services; Kerry Winterer, the department's chief executive officer; the Nebraska Liquor Control Commission; Hobart Rupe, the commission's executive director; and the Douglas County Health Department (collectively the State). In its operative complaint, Big John sought a declaration that the Act was special legislation, violated Nebraska's equal protection clause, and constituted a regulatory taking. In sum, it claimed that the Act's exemptions granted a privilege or immunity to a select class of businesses. It claimed that no rational basis existed for distinguishing these businesses from other public places or places of employment which were subject to and adversely affected by the Act or local regulations. In addition, Big John alleged that the Act deprived it of a property interest by prohibiting it from allowing its customers to smoke. It asked for a temporary restraining order and injunction until the issues were decided, but the court denied that request.
The State originally moved to dismiss the complaint under Neb. Ct. R. Pldg. § 6–1112(b)(1), (2), and (7). But after Big John filed an amended complaint, the State filed an answer, generally denying Big John's constitutional claims and affirmatively alleging that the complaint failed to state a cause of action. The State also alleged that the court lacked subject matter jurisdiction over this action as against the state defendants. It asked the court to dismiss the complaint with prejudice. Big John then moved for partial summary judgment on its special legislation claim. The State moved for summary judgment on all issues.
The court specifically limited the hearing to the special legislation issue raised by Big John's motion for partial summary judgment. Nothing in the record indicates that the court dismissed Big John's other constitutional claims that the Act constituted a regulatory taking and violated Nebraska's equal protection clause.
The court concluded that the legislative history clearly showed that the Act's purpose was to protect employees and the public from secondhand smoke by eliminating smoking in public places and places of employment—not to create separate facilities for smokers. It determined that the exemptions for designated hotel rooms, cigar bars, and retail cigarette outlets directly conflicted with the Act's public health purpose. It also concluded that the cigar bar exemption gave those businesses an economic advantage over similar businesses. Big John had argued that the legislative history showed that the Act would not have passed without the exemptions. Therefore, it argued that the court should strike down the Act in its entirety despite its severability provision.2 But the court implicitly rejected that argument. It concluded that the exemptions under § 71–5730(1), (3), and (4) were unconstitutional special legislation but severable from the rest of the Act, which was still valid. It sustained in part and in part overruled Big John's motion for partial summary judgment. It overruled the State's motions for summary judgment “on the issue of special legislation.” It did not direct entry of a final judgment under Neb.Rev.Stat. § 25–1315 (Reissue 2008).
The State assigns, restated, that the court erred as follows:
(1) entertaining the parties' motions for summary judgment because it lacked subject matter jurisdiction as to any claims against the state defendants;
(2) applying a special legislation test that focused on the purpose of the Act instead of the purpose of the exemptions; and
(3) determining that § 71–5730(1), (3), and (4) were unconstitutional special legislation.
A jurisdictional issue that does not involve a factual dispute presents a question of law.3 We independently review questions of law decided by a lower court.4
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.5 Big John argues that we lack jurisdiction over this appeal because the State did not appeal from a final order. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.6
Additionally, the State contends that the court lacked subject matter jurisdiction to decide any claim raised in Big John's complaint. This claim also presents an issue of appellate jurisdiction. If the court from which an appeal was taken lacked jurisdiction, then the appellate court acquires no jurisdiction.7 But when an appeal presents these two distinct jurisdictional issues, the first step in determining the existence of appellate jurisdiction is to determine whether the lower court's order was final and appealable.8
Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders that an appellate court may...
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