Green v. Seiffert
304 Neb. 212
| Neb. | 2019Background
- In Aug. 2017 Green obtained an ex parte domestic abuse protection order against Seiffert; after a hearing the order remained for 1 year.
- On Aug. 31, 2018 Green (pro se) filed a sparse petition to renew the protection order under Neb. Rev. Stat. § 42-924.
- The district court dismissed the renewal petition the same day without holding a hearing.
- Green (with counsel) moved to vacate the dismissal on Sept. 27, 2018, arguing the court erred and should have held a hearing; the court denied the motion on Nov. 6, 2018.
- Green filed a notice of appeal on Nov. 29, 2018 (more than 30 days after the Aug. 31 dismissal but within 30 days of the Nov. 6 denial), and appealed the denial of the motion to vacate.
- The principal legal question: whether the appellate court has jurisdiction to review denial of a motion to vacate when the underlying final order was not timely appealed and the motion merely contends the original order was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is timely and the appellate court has jurisdiction | Green appealed the Nov. 6 denial within 30 days, so the appeal is timely as to that order | The underlying Aug. 31 dismissal was final and was not timely appealed; the motion to vacate did not toll the appeal period | The court lacks jurisdiction to review the merits of the underlying dismissal because the dismissal was not timely appealed; appeal dismissed |
| Whether denial of a motion to vacate is independently appealable when it merely asserts the original order was erroneous | Green relies on Capitol Construction to argue the denial is appealable | The court relies on McEwen: a denial is appealable only if it is independently final or raises intervening new matter; here it does not | Denial of the motion to vacate is not independently final or appealable because it merely reasserts error in the initial order |
| Whether judicial efficiency justifies appellate review despite lack of statutory jurisdiction | Green argues reviewing the denial promotes efficiency and avoids forcing litigants to choose between reconsideration and appeal | Appellate jurisdiction is statutory and cannot be expanded for efficiency; timely motions to alter or amend (not filed here) would preserve appeal rights | Efficiency is not a basis to confer appellate jurisdiction; argument rejected |
| Whether the original dismissal was void for lack of subject-matter jurisdiction | Green contends the dismissal was void and thus reviewable | The district court had authority to hear renewal petitions for protection orders; subject-matter jurisdiction existed | The dismissal was not void for lack of subject-matter jurisdiction; no basis to vacate on that ground |
Key Cases Cited
- Simms v. Friel, 302 Neb. 1 (2019) (jurisdictional questions of law reviewed independently on appeal)
- Bryson L. v. Izabella L., 302 Neb. 145 (2019) (notice of appeal deadlines and effect of qualifying postjudgment motions)
- Capitol Construction Co. v. Skinner, 279 Neb. 419 (2010) (denial of certain postjudgment relief held appealable where the denial was independently final)
- McEwen v. Nebraska State College Sys., 303 Neb. 552 (2019) (clarifies that denials of motions to vacate are appealable only when they present independently final matters or intervening new issues)
- Heckman v. Marchio, 296 Neb. 458 (2017) (appellate jurisdiction exists only as conferred by statute)
- D.W. v. A.G., 303 Neb. 42 (2019) (definition and scope of subject-matter jurisdiction)