Glantz v. Daniel

• Decision Date: 30 July 2013
• Docket Number: No. A–12–673,A–12–673
• Citation: 21 Neb.App. 89,837 N.W.2d 563
• Parties: Diane S. Glantz, appellant, v. Michelle Daniel, appellee.
• Court: Nebraska Court of Appeals

21 Neb.App. 89

837 N.W.2d 563

Diane S. Glantz, appellant,

v.Michelle Daniel, appellee.

No. A–12–673

Court of Appeals of Nebraska.

Filed July 30, 2013

Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

Mark T. Bestul, of Legal Aid of Nebraska, for appellant.

No appearance for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

[21 Neb.App. 89]1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court resolves independently of the trial court.

2. Judgments: Injunction: Appeal and Error. A protection order is analogous to an injunction. Accordingly, the grant or denial of a protection order is reviewed de novo on the record.

3. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.

4. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues.

6. Courts: Judgments. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory.

7. Moot Question: Words and Phrases. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

8. Moot Question. As a general rule, a moot case is subject to summary dismissal.

9. Moot Question: Appeal and Error. Under certain circumstances, an appellate court may entertain the issues presented by a moot case when the claims presented involve a matter of great public interest or when other rights or liabilities may be affected by the case's determination.

10. Moot Question: Appeal and Error. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.

11. Words and Phrases. As a general rule, in the construction of statutes, the word “shall” is considered mandatory and inconsistent with the idea of discretion.

12. Statutes: Intent: Words and Phrases. While the word “shall” may render a particular statutory provision mandatory in character, when the spirit and purpose of the legislation require that the word “shall” be construed as permissive rather than mandatory, such will be done.

13. Statutes. There is no universal test by which directory provisions of a statute may be distinguished from mandatory provisions.

14. Statutes. If a prescribed duty is essential to the main objective of a statute, the statute ordinarily is mandatory and a violation will invalidate subsequent proceedings under it. If the duty is not essential to accomplishing the principal purpose of the statute but is designed to ensure order and promptness in the proceeding, the statute ordinarily is directory and a violation will not invalidate subsequent proceedings unless prejudice is shown.

15. Criminal Law: Time. The 5–day time requirement specified in Neb.Rev.Stat. § 28–311.09(7) (Reissue 2008) for requesting a hearing is not essential to accomplishing the main objective of Nebraska's stalking and harassment statutes.

16. Criminal Law: Judgments: Time. The purpose of protecting stalking and harassment victims is accomplished by allowing a court to promptly enter an ex parte protection order upon the filing of a petition.

17. Criminal Law: Statutes. Nebraska's stalking and harassment statutes are given an objective construction, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis.

18. Criminal Law: Judgments. Under Nebraska's stalking and harassment statutes, the inquiry is whether a reasonable person would be seriously terrified, threatened, or intimidated by the perpetrator's conduct.

Moore, Judge.

Diane S. Glantz appeals after the district court for Douglas County dismissed an ex parte harassment protection order previously entered in her favor against Michelle Daniel. Although this appeal has become moot, we determine that the issue on appeal regarding statutory construction falls within the public interest exception to the mootness doctrine. We hold that the requirement in Neb.Rev.Stat. § 28–311.09(7) (Reissue 2008) to request a hearing within 5 days of service of the ex parte protection order is directory rather than mandatory. We therefore conclude that the district court did not err when allowing the show cause hearing to proceed despite Daniel's request for hearing having been filed outside of the 5–day period. Additionally, the district court did not err in concluding the evidence was insufficient to support the issuance of the protection order. Accordingly, we affirm the dismissal of the protection order petition and ex parte harassment protection order.

FACTUAL BACKGROUND

On June 18, 2012, Glantz filed a form petition and affidavit for a harassment protection order against Daniel pursuant to § 28–311.09. Daniel is the current girlfriend of Ron Spigner, Glantz' ex-husband. In her affidavit in support of the petition, Glantz alleged that Daniel had undertaken a series of harassing acts toward her. First, Glantz stated that Daniel appeared at Glantz' divorce hearing on June 15. Glantz alerted the bailiff to Daniel's presence, and the sheriff accompanied Glantz to her car at the conclusion of the hearing. Next, Glantz alleged that she suspected Daniel had “dumped” sugar into Glantz' car's gas tank on June 14 to prevent Glantz from attending upcoming court hearings. Glantz also alleged that on or about May 19, Spigner strangled her and then Daniel drove Spigner away before the police arrived. Glantz claimed that in another incident about a week earlier, she encountered Spigner and Daniel together in a parking lot. During this encounter, Glantz observed Daniel trying to “aggressively get out of [Daniel's] car” and was afraid Daniel was going to hurt her. Glantz also alleged that she and Daniel exchanged a series of text messages and that some of the later messages became offensive. Finally, Glantz alleged that she believed Daniel had keys to her apartment and car.

On June 18, 2012, the district court entered an ex parte harassment protection order. On that same day, the Lancaster County sheriff's office personally served Daniel with the petition and affidavit. Daniel filed a request for hearing on June 27. On June 28, the district court ordered that a show cause hearing be held on July 10.

At the July 10, 2012, hearing, Glantz appeared with counsel while Daniel appeared pro se. At the outset of the hearing, Glantz' attorney objected to the hearing's proceeding as scheduled. Glantz' attorney argued that § 28–311.09(7) required the request for hearing to be filed within 5 days of service and that Daniel's request, filed 9 days after service, was not timely. Because Daniel filed her request for hearing outside the 5–day period, Glantz argued that the court should have concluded the hearing at that point, affirming the ex parte order.

When considering this argument, the district court questioned whether Glantz was prejudiced by the hearing's proceeding as scheduled. Glantz' attorney claimed that parties are entitled to rely on the rules, but conceded that his client was not otherwise prejudiced. Finding that Glantz suffered no prejudice from a time extension, the district court overruled the objection. In so ruling, the district court also noted that judicial discretion allowed granting additional time for requesting the hearing.

Thereafter, Glantz testified regarding the allegations in her petition. While the majority of Glantz' testimony was essentially a restatement of the allegations contained in her petition, she gave an expanded account of her text message conversation with Daniel. Glantz testified that over a series of approximately 80 text messages, Daniel stated that she had been in a relationship with Spigner for a year, that she was 4 weeks pregnant, and that Spigner was using Glantz only for a place to live. Glantz also testified that some name calling occurred during this text message conversation. However, she stated that the messaging was not violent or threatening.

Glantz also testified about other suspicious activity that occurred after she petitionedthe court for a protection order. Glantz could not confirm that Daniel was involved in this activity, but believed that strange events were taking place around her apartment. Daniel declined to conduct any cross-examination.

After Glantz' testimony, Daniel was sworn and testified. During her brief testimony, Daniel stated that she did not want to be involved with Glantz and that she had straightened out her life after being released from prison on parole. Daniel admitted to attending the divorce hearing, but stated that she attended only because Spigner was unable to attend due to his incarceration. Daniel also testified that Glantz had initiated contact with her on various occasions and had even contacted Daniel's parole officer. Daniel denied “dump [ing]” sugar in Glantz' car's gas tank and denied ever threatening Glantz.

At the conclusion of the parties' testimony, the...