Miller v. Horton

• Decision Date: 13 February 1998
• Docket Number: No. S-96-534,S-96-534
• Citation: 253 Neb. 1009,574 N.W.2d 112
• Parties: Thomas E. MILLER, D.D.S., Appellee, v. Mark B. HORTON, M.D., M.S.P.H., Director of Health, et al., Appellants.
• Court: Nebraska Supreme Court

Page 112

574 N.W.2d 112

253 Neb. 1009

Thomas E. MILLER, D.D.S., Appellee, v. Mark B. HORTON, M.D., M.S.P.H., Director of Health, et al., Appellants.

No. S-96-534.

Supreme Court of Nebraska.

Feb. 13, 1998.

Syllabus by the Court

1. Administrative Law: Final Orders: Appeal and Error. A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

2. Administrative Law: Judgments: Appeal and Error. On an appeal under the Administrative Procedure Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings.

3. Administrative Law: Appeal and Error. Under Neb.Rev.Stat. § 84-917(5)(a) (Cum.Supp.1992), when a petition instituting proceedings for review under the Administrative Procedure Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency.

4. Administrative Law: Final Orders: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act 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.

5. Courts: Appeal and Error. Where a cause has been appealed to a higher appellate court from a district court exercising appellate jurisdiction, only issues properly presented to and passed upon by the district court may be raised on appeal to the higher court.

6. Administrative Law: Courts. Neb.Rev.Stat. § 84-917(3) (Cum.Supp.1992) provides that upon the filing of a petition for review, an agency may order a stay or the court may order a stay. The stay can only be granted, however, when the court finds that (1) the applicant is likely to prevail when the court finally disposes of the matter; (2) without relief, the applicant will suffer irreparable injuries; (3) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and (4) the threat to public health, safety, or welfare relied upon by the agency is not sufficiently serious to justify the agency's action in the circumstances.

Don Stenberg, Attorney General, and Melanie J. Whittamore-Mantzios, Lincoln, for appellants.

Fredric H. Kauffman and Susan Kubert Sapp, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee.

CAPORALE, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ., and CHEUVRONT, District Judge.

McCORMACK, Justice.

This case is an appeal by Mark B. Horton, Director of Health; the Nebraska Department of Health; and the State of Nebraska ex rel. Don Stenberg, Attorney General (all hereinafter State), from a decision of the district court for Lancaster County, Nebraska. The action was begun by the then Department of Health as a disciplinary action under the Administrative Procedure Act (Act), Neb.Rev.Stat. § 84-901 et seq. (Reissue 1987 & Cum.Supp.1992), against Thomas E. Miller, D.D.S. The district court reversed the decision of the Department of Health which had suspended Miller's license to practice dentistry for 30 days. We took this case upon our own motion under our power to regulate the caseloads of this court and the Nebraska Court of Appeals. We affirm.

BACKGROUND

Miller has been licensed to practice dentistry in the State of Nebraska since July 1962, but is not licensed to practice either medicine or surgery. The Attorney General filed an action before the Department of Health against Miller in 1992, alleging that Miller had exceeded the scope of the practice of dentistry as delineated by Neb.Rev.Stat. *114s 71-183 (Reissue 1996) and that he had invaded the practice of medicine and surgery. The evidence adduced at the hearing showed that Miller had treated patients C.S., L.W., E.H., and Ardys Stadler during 1988 and 1989. The evidence further shows that an employee of Miller's, at Miller's request, had performed both blood and urine analyses of these patients during those time periods. Miller would then prescribe enzymes, based upon analysis and suggestions by the Nutritional Enzyme Support System (NESS) Corporation, to treat dietary deficiencies in these patients which could lead to more serious health problems such as bursitis, circulation problems, and other blood conditions, in addition to oral problems. Miller alleges that diet and nutrition are important in the practice of dentistry because diet can affect the deterioration of the teeth, jaws, and gums.

The State relied on the expert testimony of Dr. Richard Tempero for his opinions that relying on unscientific analysis to diagnose and prescribe enzyme treatments was outside the practice of dentistry and that no dental school taught such methods. Tempero testified that because the tests were not scientifically repeatable, they were unreliable as a method of diagnosing nutritional deficiencies that lead to dental problems. In its order entitled "Findings of Fact, Conclusions of Law and Order," dated November 30, 1994, the Department of Health found that Miller had practiced outside the scope of dentistry. The Department of Health, however, did not impose sanctions against Miller. Instead, the hearing officer scheduled a "dispositional hearing," at which time he would take new testimony and hear argument as to an appropriate disposition or sanction.

Miller appealed to the district court this decision finding he had practiced outside the scope of dentistry. The State demurred on the grounds that the Department of Health was waiting to hold a "dispositional hearing," and thus no disposition had been ordered in the administrative hearing. As such, the State argued that the matter was not yet ripe for judicial review by the district court. The district court overruled the demurrer, finding that there was no statutory authority for the Department of Health to hold a "dispositional hearing," but found that the Department of Health had authority to enter a disposition order in the case.

The Department of Health thereafter ordered that Miller's license to practice dentistry be suspended for 30 days. In May 1995, Miller filed a second petition, appealing both the Department of Health's original order finding that he had practiced outside the scope of dentistry and the suspension order. Miller later amended this petition. The State demurred on the grounds that the same cause of action was already pending between the two parties and that the district court had no jurisdiction over the original order because it had already decided the issue with its previous ruling. Miller then filed a motion to consolidate the two actions, which the district court granted at the same time that it overruled the State's demurrer. The district court then found that the State had failed to prove by clear and convincing evidence that Miller had practiced outside the scope of dentistry, and it reversed the orders and dismissed the proceedings against Miller by the Department of Health.

ASSIGNMENTS OF ERROR

The State assigns that the district court erred (1) in finding that the November 30, 1994, findings of fact, conclusions of law, and order issued by the Department of Health was a final appealable decision; (2) in overruling the State's motion to dismiss Miller's first petition for failing "to name the State of Nebraska ex rel. Attorney General Don Stenberg as a party"; (3) in overruling the State's demurrer to Miller's second petition on the basis that the district court did not have jurisdiction over the November 30 order; (4) in granting Miller's motion to consolidate the two petitions rather than dismissing one of the petitions; (5) in applying a pure de novo standard of review to the Department of Health's findings of fact and conclusions of law; (6) in interpreting what the scope of the practice of dentistry involved as set forth in § 71-183; and (7) in finding that Miller had practiced within the authorized scope of dentistry in testing his patients' urine and blood for nutritional deficiencies and prescribing enzymes as treatment.

STANDARD OF REVIEW

A final order rendered by a district court in a judicial review pursuant to the Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Norwest Corp. v. State, 253 Neb. 574, 571 N.W.2d 628 (1997); Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997); McGuire v. Department of Motor Vehicles, 253 Neb. 92, 568 N.W.2d 471 (1997). On an appeal under the Act, an appellate court reviews the judgment of the district court for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. Norwest Corp. v. State, supra; Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 571 N.W.2d 53 (1997); Spencer v. Omaha Pub. Sch. Dist., 252 Neb. 750, 566 N.W.2d 757 (1997).

Under § 84-917(5)(a), when a petition instituting proceedings for review under the Act is filed in the district court on or after July 1, 1989, the review shall be conducted by the court without a jury de novo on the record of the agency. Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996); Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996); McKibbin v. State, 5 Neb.App. 570, 560 N.W.2d 507 (1997). When reviewing an order of a district court under the Act 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. Norwest Corp. v. State, supra; Wolgamott v. Abramson, supra; McGuire v. Department of Motor Vehicles, supra.

ANALYSIS

We note at the outset that the State abandoned its second assigned error that...