Law Offices of Ronald J. Palagi, P.C. v. Dolan
| Decision Date | 10 January 1997 |
| Docket Number | No. S-95-134,S-95-134 |
| Citation | 251 Neb. 457,558 N.W.2d 303 |
| Parties | The LAW OFFICES OF RONALD J. PALAGI, P.C., a Nebraska Professional Corporation, Appellant, v. Dan DOLAN, Nebraska Commissioner of Labor, and Jean V. Faulconbridge, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Employment Security: Appeal and Error. In an appeal from the Nebraska Appeal Tribunal to the district court regarding unemployment benefits, that court conducts the review de novo on the record; but on review by the Court of Appeals or the Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the district court's ruling.
4. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
5. Appeal and Error. Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion.
6. Administrative Law: Appeal and Error. Where the evidence is in conflict, the district court, in applying a de novo standard of review, can consider and may give weight to the fact that the agency hearing examiner observed the witnesses and accepted one version of the facts rather than another.
7. Statutes: Rules of the Supreme Court: Appeal and Error. While Neb.Rev.Stat. § 25-1919 (Reissue 1995) and Neb.Ct.R. of Prac. 9D(1)d (rev. 1996) provide that consideration of the cause on appeal is limited to errors assigned and discussed by the parties, that same statute and rule permit the Court of Appeals or Supreme Court to note any plain error not assigned.
Michael A. Nelsen, of Dixon & Dixon Ltd., L.L.P., Omaha, for appellant.
John F. Sheaff and John H. Albin, Lincoln, for appellee Dolan.
Mary Lou Perry, of Betterman Katelman & Hotz, Omaha, for appellee Faulconbridge.
The Law Offices of Ronald J. Palagi, P.C., appeals from the judgment of the district court affirming the decision of the Nebraska Appeal Tribunal granting unemployment compensation benefits to Jean V. Faulconbridge without disqualification. Because the district court committed plain error by applying the wrong standard of review, we reverse, and remand for reconsideration applying the proper standard.
This appeal was originally filed with the Nebraska Court of Appeals. We removed the case to this court's docket pursuant to statutory authority to regulate the caseloads of the appellate courts.
In an appeal from the Nebraska Appeal Tribunal to the district court regarding unemployment benefits, that court conducts the review de novo on the record; but on review by the Court of Appeals or the Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995). See Neb.Rev.Stat. §§ 48-638 (Reissue 1993) (subsequently amended as set forth in § 48- When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Dolan v. Svitak, supra; Lee v. Nebraska State Racing Comm., 245 Neb. 564, 513 N.W.2d 874 (1994). However, when reviewing a question of law, an appellate court reaches a conclusion independent of the district court's ruling. Hausse v. Kimmey, 247 Neb. 23, 524 N.W.2d 567 (1994).
638 (Cum.Supp.1996)) and 84-917 and 84-918 (Reissue 1994).
Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. In re Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995); Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994). Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion. Long v. Hacker, supra.
The appellant asserts that the district court erred in upholding the decision of the Nebraska Appeal Tribunal and that the decision was not based on relevant evidence and did not correspond to applicable law.
We need not discuss the specific facts appearing in the record in order to dispose of this appeal. The district court order affirming the administrative decision stated:
The decision of the Nebraska Appeals [sic] Tribunal is correct and the same should be and is hereby affirmed.
The Court specifically finds that said decision was not in violation of any constitutional provisions or was in excess of the statutory authority or jurisdiction of the agency.
The Court further finds that it was made upon a lawful procedure and according to law and further, this decision is not affected by any other error of law.
The Court specifically finds that the decision was supported by competent, material and substantial evidence in view of the entire record as made on review and that said decision was neither arbitrary nor capricious.
In arriving at the decision, the Court considered that the evidence was in conflict and the Court gives weight to the fact that the agency hearing examiner observed the witnesses and accepted one version of the facts rather than another.
(Emphasis supplied.)
The district court erroneously limited its review. For review proceedings commenced before July 1, 1989, § 84-917(6)(a) specifically limits the district court's review. See Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985). The standard used by the district court in ...
To continue reading
Request your trial
-
Kramer v. Kramer
...Although neither party raised this point on appeal, under our power to address plain error, see, Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996), we order that the amount of the judgment entered in the ......
-
Transcanada Keystone Pipeline, LP v. Dunavan (In re Application No. Op-0003)
...910 (2014). See In re Claims Against Pierce Elevator , 291 Neb. 798, 868 N.W.2d 781 (2015).25 Id.26 See, Law Offices of Ronald J. Palagi v. Dolan , 251 Neb. 457, 558 N.W.2d 303 (1997) ; Department of Health v. Lutheran Hosp. & Homes Soc. , 227 Neb. 116, 416 N.W.2d 222 (1987).27 Dieter v. St......
-
Ackles v. Luttrell
...a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); Olson v. SID No. 177, 251 Neb. 380, 557 N.W.2d 651 This appeal presents the issue of whether failure-to-warn and......
-
Tapp v. Blackmore Ranch, Inc.
...a question of law, an appellate court reaches a conclusion independent of the district court's ruling. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997); Olson v. SID No. 177, 251 Neb. 380, 557 N.W.2d 651 In an appeal based on a claim of an erroneous jury instruc......