Putnam v. Fortenberry

• Decision Date: 19 February 1999
• Docket Number: No. S-97-1235,S-97-1235
• Citation: 589 N.W.2d 838,256 Neb. 266
• Parties: Dorothy PUTNAM, appellant, v. Jeff FORTENBERRY et al., appellees.
• Court: Nebraska Supreme Court

Page 838

589 N.W.2d 838

256 Neb. 266

Dorothy PUTNAM, appellant, v. Jeff FORTENBERRY et al., appellees.

No. S-97-1235.

Supreme Court of Nebraska.

Feb. 19, 1999.

Syllabus by the Court

1. Injunction: Equity. An action for injunction sounds in equity.

2. Equity: Appeal and Error. In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

3. Declaratory Judgments: Appeal and Error. In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion independent from the conclusion reached by the trial court.

4. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that 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 from the lower court's decision.

5. Records: Appeal and Error. An appellate brief generally may not expand the evidentiary record and should limit itself to arguments supported by the record. An appellate court may, however, consider agreed circumstances presented to it in brief or argument.

6. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation.

7. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

8. Injunction. The purpose of an injunction is to restrain actions that have not yet been taken.

9. Injunction. Injunctive relief is preventative, prohibitory, or protective, and equity usually will not issue an injunction when the act complained of has been committed and the injury has been done.

10. Declaratory Judgments: Moot Question. A declaratory judgment action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.

11. Declaratory Judgments. At the time that a declaratory judgment is sought, there must be an actual justiciable issue.

12. Justiciable Issues. A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement.

13. Declaratory Judgments. Declaratory relief cannot be used to obtain a judgment which is merely advisory.

14. Moot Question: Appeal and Error. The public interest exception to the rule precluding consideration of issues on appeal due to mootness requires a consideration of the public or private nature of the question presented, the desirability of an authoritative adjudication for future guidance of public officials, and the likelihood of future recurrence of the same or a similar problem.

15. Moot Question: Appeal and Error. It is generally inappropriate for an appellate court to review a moot case that does not evade review as a result of a transitory setting, even if the problem is likely to recur.

D. Milo Mumgaard and Vincent M. Powers, Lincoln, for appellant.

William F. Austin, Lincoln City Attorney, Lincoln, for appellees.

Craig Groat, amicus curiae.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

INTRODUCTION

Dorothy Putnam appeals from the district court's denial of temporary and permanent injunctions against the appellees, Jeff Fortenberry; Cindy Johnson; Dale Young, Jerry Shoecraft; Colleen Seng; Curt Donaldson; Linda Wilson; City of Lincoln, Nebraska; and Michael Johanns (hereinafter collectively the City), enjoining the City from completing the sale of Lincoln General Hospital (hereinafter Lincoln General) from the City of Lincoln to Bryan Memorial Hospital and Bryan Healthcare, Inc. (hereinafter collectively Bryan). The threshold issue we must address is whether it is appropriate for us to review the denial of an injunction, given that the act Putnam sought to enjoin was completed several months ago.

FACTUAL AND PROCEDURAL BACKGROUND

Lincoln General was an independent municipal hospital owned by the City of Lincoln, employing 1,124 part-time and full-time employees. On September 2, 1997, an ordinance was introduced during the Lincoln City Council meeting to approve a "Master Affiliation Agreement by and among Bryan Healthcare, Inc. and Bryan Memorial Hospital and The City of Lincoln, Nebraska and The Board of Trustees of Lincoln General Hospital" (hereinafter affiliation agreement). The affiliation agreement provided generally that Lincoln General would be sold to Bryan for a price of $42 million.

A public hearing was held on September 8, 1997, and the ordinance was passed by the city council on September 15. The affiliation agreement was executed by all the parties on October 1 and set forth a closing date of October 31.

Putnam first filed a petition in the district court on September 11, 1997, regarding this sale. Putnam's amended petition asked the district court, under various theories, to issue a declaratory judgment stating that the actions of the City in passing the ordinance and executing the affiliation agreement were contrary to law and were null and void, and to grant a permanent injunction preventing the City from attempting to convey Lincoln General to any other person, entity, or corporation.

On October 21, 1997, the district court denied Putnam's request for a temporary and a permanent injunction. The district court rejected Putnam's arguments that the deed to the Lincoln General property created restraints on alienation, that the property was held in public or testamentary trust, that the City lacked the legal authority to make the sale, that the public meetings statutes were violated, and that the sale was made without adequate consideration. On November 20, Putnam filed a notice of appeal, and we removed the case to the Supreme Court docket on our own motion.

Significantly, the sale of Lincoln General has been completed. The affiliation agreement established a closing date of October 31, 1997, with Bryan to take possession of Lincoln General on November 1. No injunction was issued by the district court, and the record reveals no stay or supersedeas bond, before or after the filing of the notice of appeal. The City indicated in its brief that the sale had been completed, Putnam conceded this fact in her reply brief, and both parties acknowledged during oral argument that the sale had been completed.

ASSIGNMENTS OF ERROR

Putnam assigns, restated, that the district court erred (1) in finding that the City possessed

the statutory authority necessary to sell Lincoln General and (2) in finding no violation of Nebraska's public meetings statutes.

STANDARD OF REVIEW

An action for injunction sounds in equity. Omega Chem. Co. v. United Seeds, 252 Neb. 137, 560 N.W.2d 820 (1997); Robertson v. School Dist. No. 17, 252 Neb. 103, 560 N.W.2d 469 (1997). In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998); Tilt-Up Concrete v. Star City/Federal, 255 Neb. 138, 582 N.W.2d 604 (1998).

In an appeal from a declaratory judgment, an appellate court, regarding questions of law, has an obligation to reach its conclusion independent from the conclusion reached by the trial court. Bentley v. School Dist. No. 025, 255 Neb. 404, 586 N.W.2d 306 (1998).

A jurisdictional question that 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 from the lower court's decision. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998); State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).

ANALYSIS

Prior to reaching the errors assigned by Putnam, we must consider whether the completion of the sale of Lincoln General has rendered this case moot. Evidence of the completion of the sale, however, does not appear in our record on appeal. An appellate brief generally may not expand the evidentiary record and should limit itself to arguments supported by the record. R-D Investment Co. v. Board of Equal. of Sarpy Cty., 247 Neb. 162, 525 N.W.2d 221 (1995); Obermeier v. Bennett, 230 Neb. 184, 430 N.W.2d 524 (1988). We have held, however, that an appellate court "may consider agreed circumstances presented to it in brief or argument." Koenig v. Southeast Community College, 231 Neb. 923, 925, 438 N.W.2d 791, 794 (1989). See, also, City of Crete v. County of Saline, 214 Neb. 200, 332 N.W.2d 926 (1983). In their arguments presented to this court, the parties have agreed that the sale of Lincoln General has been completed.

A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation. State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998); DeCoste v. City of Wahoo, 255 Neb. 266, 583 N.W.2d 595 (1998). A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v....