McEwen v. Neb. State Coll. Sys.

Decision Date12 July 2019
Docket NumberNo. S-17-638.,S-17-638.
Citation303 Neb. 552,931 N.W.2d 120
Parties Dr. Robert MCEWEN, appellant, v. NEBRASKA STATE COLLEGE SYSTEM, appellee.
CourtNebraska Supreme Court

Howard P. Olsen, Jr., and Adam A. Hoesing, of Simmons Olsen Law Firm, P.C., L.L.O., Scottsbluff, for appellant.

George E. Martin III and Leigh Campbell Joyce, of Baird Holm, L.L.P., Omaha, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.


In a series of decisions involving appeals, this court determined that a motion to alter or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 2016) does not apply to a decision of a district court acting as an intermediate appellate court. Thus, in those prior decisions, the motion was held not to terminate the time for appeal to a higher court.1 The question presented here is whether, given a longstanding distinction between appeals and error proceedings, § 25-1329 applies to a district court’s judgment disposing of a petition in error.2 For numerous reasons, we conclude that it does. And because we conclude that the original reasoning was incomplete and that doing otherwise would exacerbate a "procedural minefield," we overrule several previous decisions to the extent that they held § 25-1329 inapplicable to judgments of a district court acting as an intermediate appellate court. We therefore reverse the Nebraska Court of Appeals' summary dismissal of this appeal and remand the cause for further proceedings.


Dr. Robert McEwen filed a petition in error in the district court for Dawes County, Nebraska, against the Nebraska State College System (NSCS), a system of three state colleges in Nebraska. He alleged that he was wrongfully terminated from his position as a tenured professor at Chadron State College.

Neither party disputes that the petition in error was timely filed. Responding to the petition in error, NSCS' answer admitted that McEwen was discharged on March 16, 2016, that McEwen timely requested an additional hearing before NSCS' board of trustees under a provision of the collective bargaining agreement, and that on April 18, NSCS' chancellor denied the additional hearing, thereby finalizing the discharge. McEwen’s petition was filed on May 17. District court proceedings followed.

By a judgment styled as a memorandum order, the district court "overruled" his petition on March 31, 2017 (March judgment).

Exactly 10 days later, on April 10, 2017, McEwen moved for a new trial or, in the alternative, for an order vacating the March judgment. The alternative motion stated that it was based on Neb. Rev. Stat. § 25-2001 (Reissue 2016).

After a hearing, the district court overruled both aspects of the motion, doing so by an order entered on May 25, 2017 (May order). Because the court had not conducted a trial and reviewed only a transcript of the administrative proceedings, it concluded that a motion for new trial was not proper. Turning to McEwen’s alternative motion to vacate judgment, the court explained that it had made a mistake of fact regarding the presence of an individual at an administrative hearing. But the court concluded that the individual’s presence was not the "determining fact" in the court’s conclusions regarding the " ‘17.3’ " issue, referring to a section of a collective bargaining agreement. Thus, the court did not change its decision regarding the merits of McEwen’s petition in error.

Within 30 days after the May order, McEwen filed a notice of appeal. In case No. A-17-638, the Court of Appeals summarily dismissed the appeal for lack of jurisdiction. The court’s summary order explained that McEwen’s motion for new trial did not "toll" the time to file a notice of appeal and that McEwen’s notice of appeal was not timely filed.

McEwen moved for rehearing in the Court of Appeals. He argued that the May order was itself a final order. He premised this argument upon § 25-2001 and this court’s decision in Capitol Construction v. Skinner .3 Notably, McEwen discussed two of our cases, Goodman v. City of Omaha4 and Timmerman v. Neth ,5 regarding the applicability of a motion to alter or amend a judgment6 where a district court acts as an intermediate appellate court. Based on this case law, McEwen conceded, as he did at oral argument before this court, that his motion to vacate did not act as a motion to alter or amend the judgment, which would have terminated the running of the appeal time.

By a summary order in case No. A-17-638, the Court of Appeals denied rehearing. The court explained that McEwen’s motion to vacate did not "toll" the time to appeal from the March judgment. The court added, "Accordingly, by the time the district court entered [the May] order denying the motion to vacate, [McEwen] could only appeal from that order. However, [McEwen’s] brief on appeal argues only that the district court erred by denying his petition in error in the March [judgment]." Thus, the Court of Appeals concluded that it lacked jurisdiction to consider the merits of the March judgment and left in place the dismissal of the appeal from the May order.

McEwen timely petitioned for further review, which we granted.7

After oral argument in this court, we requested supplemental briefing by the parties addressing whether, in light of the distinction traditionally recognized between petitions in error and appeals created by various statutes, the Legislature intended for motions to alter or amend a judgment under § 25-1329 to apply to judgments entered in error proceedings and, if so, the proper application of that statute to the case before us. The parties promptly submitted supplemental briefs, which we have considered.


McEwen assigns that the Court of Appeals erred in (1) dismissing his appeal for lack of jurisdiction and (2) overruling his subsequent motion for rehearing.


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.8

The meaning of a statute is a question of law.9


The Court of Appeals denied McEwen’s motion for rehearing, basing its denial on Capitol Construction v. Skinner .10 No doubt relying on prior decisions of this court, the court did not consider whether § 25-1329 affected the time for appeal from the March judgment. And neither party argued that question to the Court of Appeals. But that matters not. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.11 If an alternative basis supported jurisdiction, the Court of Appeals was bound to apply it unless it was foreclosed by existing precedent from this court.12 Here, the Court of Appeals quite reasonably concluded that Capitol Construction dictated that it lacked jurisdiction of McEwen’s appeal.


On further review, McEwen relies primarily on the same argument he presented to the Court of Appeals in support of rehearing there—that the district court’s order overruling his alternative motion to vacate was itself a final, appealable order under Capitol Construction .

Before turning to that argument, we note that on further review, McEwen has abandoned his argument based on his motion for new trial. The Court of Appeals rejected that argument, and in McEwen’s brief in support of his petition for further review, he neither assigns error nor presents argument addressing the motion for new trial. It is well established that a petition for further review and supporting memorandum brief must specifically set forth and discuss any error assigned to the Court of Appeals.13 Therefore, we do not consider it.

Regarding McEwen’s motion to vacate, both his argument and the Court of Appeals' summary disposition rely upon our decision in Capitol Construction , which we first summarize and then apply.

(a) Capitol Construction

Capitol Construction was an appeal from county court to district court, where the district court dismissed the appeal for lack of progression after the defendants, who brought the appeal, failed to reply to a progression letter.14 But the progression letter was sent only to the defendants' trial counsel, who failed to either respond or forward the notice to appellate counsel.

Within 10 days of the dismissal, the defendants, through their appellate counsel, filed a motion to reinstate the appeal. The district court denied the motion, and the defendants appealed to the Court of Appeals. This appeal was filed more than 30 days after the dismissal, but within 30 days of the denial of their motion to reinstate.

Before the Court of Appeals, the defendants sought review of the district court’s denial of their motion to reinstate. The Court of Appeals dismissed the appeal as untimely,15 and we granted further review.

In analyzing the jurisdictional question, we first reiterated our holding in State v. Hausmann ,16 that a district court sitting as an appellate court has the same power to reconsider its orders, both inherently and under § 25-2001, as it does when it is a court of original jurisdiction.17

We then said that "an order denying a motion to vacate or modify a final order is itself a final, appealable order."18 But we reasoned the Court of Appeals had jurisdiction, because "[the] later order [was] based upon grounds that [made] it independently final and appealable and the merits of that order [were] the issue raised on appeal."19 Although it was not necessary to our decision in Capitol Construction , we observed that the Court of Appeals did not have jurisdiction to consider an appeal challenging the merits of the earlier, progression-based dismissal order. We then recited the familiar proposition that a motion for reconsideration does not toll the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent...

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  • State v. Harris
    • United States
    • Nebraska Supreme Court
    • September 25, 2020
    ...See State v. Hausmann , 277 Neb. 819, 827, 765 N.W.2d 219, 225 (2009), overruled on other grounds, McEwen v. Nebraska State Coll. Sys. , 303 Neb. 552, 931 N.W.2d 120 (2019) (statute governing motions to alter or amend judgment applies to judgment of district court acting as intermediate app......
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