Weeder v. Central Community College
| Decision Date | 14 January 2005 |
| Docket Number | No. S-03-1174.,S-03-1174. |
| Citation | 691 NW 2d 508,269 Neb. 114 |
| Parties | BODIE J. WEEDER, APPELLANT, v. CENTRAL COMMUNITY COLLEGE, A POLITICAL SUBDIVISION, AND MIKE SWANSON, INDIVIDUALLY AND AS AN EMPLOYEE OF CENTRAL COMMUNITY COLLEGE, APPELLEES. |
| Court | Nebraska Supreme Court |
Dean J. Sitzmann and Nichole S. Bogen, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellant.
Lucy Higgins Sinkular and David C. Huston, of Huston & Higgins, for appellees.
Bodie J. Weeder brought an action against Central Community College and its employee Mike Swanson (collectively CCC) pursuant to the Political Subdivisions Tort Claims Act (the Act). CCC filed a motion to dismiss Weeder's petition. The district court for Buffalo County granted CCC's motion. Weeder appeals. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
The pleadings indicate that on April 11, 2002, Weeder sent by certified mail a letter to the board of governors of the college. In that letter, which Weeder stated was to serve as notice of the filing of a tort claim against CCC pursuant to the Act, Weeder alleged that on April 18, 2001, he was injured while demonstrating welding techniques at an off-campus recruitment project. Weeder's letter contended that at the time he suffered his injury, he was being supervised by Swanson, who was a welding instructor at the college. Thereafter, on July 18, 2002, Weeder sent a second letter to CCC withdrawing the claim and notifying CCC that his attorney was authorized to commence a lawsuit against CCC on Weeder's behalf. On April 18, 2003, Weeder filed suit against CCC.
In response to Weeder's "petition," CCC filed a motion entitled "Motion to Dismiss for Failure to Comply With the Political Subdivisions Tort Claims Act Filing Requirements," which motion we will refer to as a "motion to dismiss." In that motion to dismiss, CCC, "pursuant to the Nebraska Rules of Pleading in Civil Action, Rule Nos. 8(c) and 12(b)," moved the district court as follows:
The district court granted CCC's motion to dismiss in a detailed journal entry. In that journal entry, the court initially addressed paragraph 1 of CCC's motion regarding defendant Swanson and Swanson's specific argument that "it [the claim] fails to specifically request a recovery against the employee [Swanson]." Finding that the claim sufficiently requested a recovery against Swanson, the district court denied the motion to dismiss, based on paragraph 1. Neither the college nor Swanson cross-appealed from this ruling.
The court next addressed paragraph 2 of CCC's motion, which asserted that Weeder failed to comply with the Act by withdrawing his claim before commencing suit. Finding in favor of CCC, the court reasoned:
The record as presented by the parties and noted before indicates that [Weeder] filed his claim with the political subdivision on April 11, 2002 and withdrew the claim on July 18, 2002 prior to the expiration of the 6 month period that the subdivision is allowed pursuant to the statutes to consider a claim. The petition was then filed with the Court on April 18, 2003. . . .
Political subdivisions as well as the State itself are immune from tort claims except to the extent the State allows itself to be sued. Sections 13-901 et seq of the Nebraska Statute creates the substantive and procedural rules by which the State allows itself to be sued. Both sections 13-906 and 13-920 are specific in directing that "no suit shall be permitted on a claim" unless the political subdivision has denied the claim or has had a 6 month opportunity to consider the claim. The clear and precise meaning of the statutes of this State prohibit the filing of a claim that has not been denied prior to the running of the 6 month period. This Court therefore finds that the premature filing of this litigation is in fact a nullity and this Court is without jurisdiction to consider the claim as presented. [CCC's] motion to dismiss is therefore sustained.
In its ruling, the district court made no findings with respect to paragraph 3 of CCC's motion to dismiss, and neither party asserts any error in that regard.
Weeder filed a motion for new trial, asking the district court to "reexamine its decision to dismiss . . . and reinstate the action as previously filed." The district court denied Weeder's motion, and Weeder appeals.
On appeal, Weeder argues that the district court erred in (1) finding that it was without jurisdiction to consider Weeder's claim and (2) sustaining CCC's motion to dismiss.
[1] A district court's grant of a motion to dismiss for failure to state a claim under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Kellogg v. Nebraska Dept. of Corr. Servs., ante p. 40, ___ N.W.2d ___ (2005) (). See, also, Chepstow Ltd. v. Hunt, 381 F.3d 1077 (11th Cir. 2004) (); Brown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999) (same).
[2] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004). At issue is whether Weeder's notice of appeal was timely filed.
The district court sustained CCC's motion to dismiss and entered judgment on August 14, 2003. Thereafter, Weeder filed a pleading entitled "Motion for New Trial" on August 22. That motion was overruled on September 11, and Weeder filed his notice of appeal on October 8.
[3] A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a trial and decision by the court. Neb. Rev. Stat. § 25-1142 (Cum. Supp. 2002); Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997, 679 N.W.2d 235 (2004). In this case, we are presented with a court granting a motion to dismiss. Such action is not a verdict by a jury or a trial and decision by the trial court. As a result, Weeder's motion for new trial was not a proper motion and would not toll the time for filing a notice of appeal.
[4] However, we have stated that a postjudgment motion must be reviewed based on the relief sought and not based on its title. See, Central Neb. Pub. Power v. Jeffrey Lake Dev., supra; State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002). As a result, the issue is whether Weeder's August 22, 2003, motion could be viewed as a motion to alter or amend the judgment pursuant to Neb. Rev. Stat. § 25-1329 (Cum. Supp. 2002), which would toll the time for filing a notice of appeal.
[5] In order to qualify for treatment as a motion to alter or amend the judgment, the motion must be filed no later than 10 days after the entry of judgment, as required under § 25-1329, and must seek substantive alteration of the judgment. See, Central Neb. Pub. Power v. Jeffrey Lake Dev., supra; State v. Bellamy, supra. In this case, Weeder's August 22, 2003, motion for new trial was filed within 10 days of the district court's grant of the motion to dismiss on August 14. Furthermore, in his August 22 motion, Weeder asked the district court, inter alia, to "reexamine its decision to dismiss . . . and reinstate the action as previously filed." We conclude that this language seeks substantive alteration of the judgment of the district court dismissing Weeder's action. As a result, Weeder's August 22 motion qualifies as one to alter or amend the judgment under § 25-1329, and tolled the time for filing a notice of appeal. Weeder's appeal was timely, and we have jurisdiction over this matter.
We pause briefly to note that since Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2002) was amended in 2000, see 2000 Neb. Laws, L.B. 921, this court or the Court of Appeals, on repeated occasions, has found it necessary to determine whether an improperly filed motion for new trial could be viewed as one to alter or amend a judgment. See, Diversified Telecom Servs. v. Clevinger, 268 Neb. 388, 683 N.W.2d 338 (2004); Central Neb. Pub. Power v. Jeffrey Lake Dev., supra; DeBose v. State, 267 Neb. 116, 672 N.W.2d 426 (2003); State v. Bellamy, supra; Vesely v. National Travelers Life Co., 12 Neb. App. 622, 682 N.W.2d 713 (2004). In the future, we request the practicing bar to carefully consider the nature of the proceeding prior to filing any motion calling into question a court's judgment.
We now turn to Weeder's assignments of error.
In Weeder's first assignment of error, he contends the district court erred in...
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