Blitzkie v. State

• Decision Date: 06 May 1988
• Docket Number: No. 85-1008,85-1008
• Parties: LeRoy BLITZKIE, Appellant, v. STATE of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 773

422 N.W.2d 773

228 Neb. 409

LeRoy BLITZKIE, Appellant, v. STATE of Nebraska, Appellee.

No. 85-1008.

Supreme Court of Nebraska.

May 6, 1988.

Syllabus by the Court

1. Jurisdiction: Venue: Words and Phrases. Jurisdiction is the inherent power or authority to decide a case; venue is

the place of trial of an action--the site where the power to adjudicate is to be exercised.

2. Tort Claims Act: Liability. Subject to certain exempted claims, the State Tort Claims Act provides for the State's liability for its torts the same as a private person may be liable for torts.

3. Tort Claims Act: Courts. In all suits brought under the State Tort Claims Act, the district court shall follow the rules of civil procedure applicable to private litigants.

4. Tort Claims Act: Jurisdiction: Venue: Case Overruled. Insofar as Catania v. The University of Nebraska, 204 Neb. 304, 282 N.W.2d 27 (1979), stands for the proposition that venue is a jurisdictional aspect of litigation under the State Tort Claims Act, Catania is overruled.

5. Jurisdiction: Venue: Waiver. Where the court has general jurisdiction of the subject matter, the right of a defendant to be sued in a particular county is a mere personal privilege which may be waived.

6. Venue: Waiver. The question of improper venue in a transitory action is waived unless raised in the answer or by an earlier timely objection before answer.

7. Tort Claims Act: Venue: Courts. As part of the civil procedure applicable to suits brought under the State Tort Claims Act, a district court is authorized, under appropriate circumstances, to change the venue of the proceedings or otherwise transfer the site for trial.

8. Tort Claims Act: Venue: Case Overruled. Insofar as Miller v. State, 208 Neb. 170, 302 N.W.2d 692 (1981), holds that an action brought under the State Tort Claims Act but commenced in an improper venue cannot be transferred in accordance with statutory provisions properly applicable to a change of venue or transfer of action, Miller is overruled.

9. Venue: Appeal and Error. In the absence of an abuse of discretion by the trial court, the Supreme Court will uphold the trial court's ruling on a request for a change of venue.

Jewell, Gatz & Collins, Norfolk, and Gremer, Koenig, Murray, Johnson & Daley, Germer, for appellant.

Robert M. Spire, Atty. Gen., and John R. Thompson, Lincoln, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Pursuant to the State Tort Claims Act, Neb.Rev.Stat. §§ 81-8,209 et seq. (Reissue 1981), LeRoy Blitzkie filed a negligence action against the State of Nebraska. The district court for Boyd County entered summary judgment that the court lacked jurisdiction to litigate Blitzkie's claim and dismissed the action. We affirm in part and, in part, reverse and remand for further proceedings.

Blitzkie, a livestock owner residing in Boyd County, filed his amended petition in the district court for Boyd County and alleged negligence of the State in 1979, namely, failure to notify Blitzkie about a virulent and readily communicable livestock disease, pseudorabies, which existed in the area of Blitzkie's farm and later infected his herd. Without objecting to venue, the State filed its answer in 1981 and admitted that pseudorabies was a transmissible disease, but denied that the State was negligent, and further denied that Blitzkie's damages were as extensive as alleged. At the conclusion of its answer, the State prayed for judgment in its favor and dismissal of Blitzkie's petition. Approximately 11 months later, the State filed a motion to dismiss, claiming that the State's conduct alleged in Blitzkie's petition constituted discretionary functions exempted from actionable conduct under the State Tort Claims Act. See § 81-8,219(1)(a). In its motion to dismiss, the State also claimed the court lacked jurisdiction, because "All acts or omissions alleged by plaintiff occurred in Lancaster County, Nebraska and any action thereon must be brought only in said Lancaster County...." Although the parties appeared for argument on the State's motion to dismiss, the district court treated the State's motion to dismiss as a motion for summary judgment, granted summary judgment, namely, the State's conduct was discretionary conduct "within the specific exemption of the scope of the Tort Claims Act," and dismissed Blitzkie's petition, notwithstanding the court's departure from civil procedure governing disposition by summary judgment, which afforded Blitzkie 10 days in which to respond to or counter the State's evidence for a summary judgment. See Neb.Rev.Stat. § 25-1332 (Reissue 1985). Blitzkie appealed from that summary judgment and dismissal of his action. In Blitzkie v. State, 216 Neb. 105, 107, 342 N.W.2d 5, 6 (1983), we reversed the dismissal of Blitzkie's action and stated: "However, it is apparent that one against whom a motion for summary judgment is invoked must be given at least 10 days from filing the same to respond with counteraffidavits or depositions. Neb.Rev.Stat. § 25-1332 (Reissue 1979). This opportunity was not afforded the plaintiff."

While Blitzkie's case was pending after remand, we decided Wickersham v. State, 218 Neb. 175, 354 N.W.2d 134 (1984), a case brought under the State Tort Claims Act for the State's negligent conduct virtually identical to that alleged by Blitzkie. The Wickersham opinion was issued on August 3, 1984.

As reflected in Wickersham v. State, supra, Wickersham lived and ranched in Sioux County. The offices of the Nebraska Department of Agriculture and the State Veterinarian were located in Lancaster County. As the result of Neb.Rev.Stat. § 54-701 (Reissue 1984), the State had " 'the duties of protecting the health of livestock in Nebraska, of determining and employing the most efficient and practical means for the prevention, suppression, control and eradication of dangerous, infectious, contagious or otherwise transmissible diseases among domestic animals....' " 218 Neb. at 177, 354 N.W.2d at 137. Among its duties for official eradication of livestock disease, the State was required to undertake blood tests of cattle exposed to brucellosis, a highly contagious disease, and contact owners of exposed herds for further testing. The State detected brucellosis in the herd from which Wickersham had purchased his cattle and knew about Wickersham's purchase. Months later, the State tested Wickersham's cattle and ascertained that his cattle were infected with brucellosis. Wickersham filed suit in Lancaster County, alleging the State's negligence in failure to notify him about the brucellosis situation and promptly inspect his herd. The State obtained a summary judgment that Lancaster County was not the proper venue for the proceedings. The State contended that venue of Wickersham's suit was somewhere outside Lancaster County, because any harm " 'could only manifest itself in Sioux County.' " 218 Neb. at 183, 354 N.W.2d at 140. In Wickersham v. State, supra, we examined § 81-8,214:

The district court, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any suit or tort claim as defined in this act. Suits shall be brought in the district court of the county in which the act or omission complained of occurred, or if the act or omission occurred outside the boundaries of the State of Nebraska, in the district court for Lancaster County.

Holding that the proper venue for Wickersham's action was Lancaster County, we stated in Wickersham:

"Jurisdiction is the inherent power or authority to decide a case; venue is the place of trial of an action--the site where the power to adjudicate is to be exercised." State ex rel. Bauersachs v. Williams, 215 Neb. 757, 759, 340 N.W.2d 431, 433 (1983). Clearly, under § 81-8,214 the district court has subject matter jurisdiction to hear, determine, and render judgment concerning any tort claim defined in the State Tort Claims Act....

....

The question presented in Wickersham's case is, Where did the act or omission occur? More simply, Where's the venue? The answer to the question lies in the definition of the word occur.... In reference to the State Tort Claims Act, § 81-8,214, "the county in which the act or omission occurred" means the site where the wrongful conduct actually takes place, not where the results of the wrongful conduct take place or occur. Occur does not include the results of the act or omission, but only the taking place, happening, or coming to pass....

... In the final analysis, all people responsible for decisions and action regarding Wickersham's problem were in Lancaster County. Consequently, the correct venue of Wickersham's action is Lancaster County.

(Emphasis in original.) 218 Neb. at 183-85, 354 N.W.2d at 140-41.

Thus, Wickersham emphasized the distinction between jurisdiction and venue and acknowledged the criterion for determining proper venue of litigation under the State Tort Claims Act, namely, the place where the State's tortious act or omission occurred or took place. See § 81-8,214. Wickersham rejected the State's misconception that venue for litigation of a tort claim against the State is determined by the situs of damage to a claimant. As we observed in Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186 (1984), misconduct and damage are related as cause and effect.

On November 2, 1984, approximately 3 months after Wickersham, Blitzkie requested that the proceedings be transferred to Lancaster County "in accordance with § 24-324," which in part provides:

[T]he rules of pleading and practice in regard to other civil actions in the district court shall be observed in all actions by or against the state, as far as applicable except as otherwise herein provided; Provided, that when an action has been commenced in a county other than as specified herein, the court in which the action has been...