Kowalewski v. Madison Cty. Bd. of Comrs.
310 Neb. 812
| Neb. | 2022Background
- Elkhorn Valley Sportsman Club applied for and the Madison County Board of Commissioners granted a conditional use permit to operate a trap/skeet range on September 15, 2020.
- Ronald and Linda Kowalewski and Robert and Sally Schroeter filed a notice of appeal to the Madison County District Court on October 14, 2020 and deposited with the county clerk a $100 cash bond and an $82 check intended as the district-court docket fee (the required fee was $83).
- The 30-day perfection period ended October 15; an additional $1 was paid to the district court clerk on October 16 (day 31). The record shows no request to apply cash bond funds to the docket fee.
- Petition was filed December 2; appellees moved to dismiss December 3–4 on the ground the docket fee had not been timely paid.
- The district court took judicial notice of its file and dismissed the appeal for failure to timely pay the docket fee. The Supreme Court affirmed and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal was perfected despite underpayment/tardy payment of the district-court docket fee | Kowalewskis: full amount was effectively on deposit (bond + $82) so clerk should have applied $1 from the bond or accepted the tender and perfected the appeal | Board/Club: statutory requirement to deposit the docket fee within 30 days is jurisdictional; partial or late payments and use of bond do not satisfy §25-2729(1) | Held: Dismissed for lack of jurisdiction. Timely payment of the full docket fee (or filing IFP) is required; bond cannot substitute or cure the deficiency. |
| Whether Stigge/Olmer allow a nonliteral or flexible application of the docket-fee requirement so that the bond/late payment suffices | Kowalewskis: rely on Stigge and Olmer to argue the literal docket-fee rule should not bar their appeal because §25-1937 was applied analogously in those cases | Board/Club: Olmer and Stigge do not authorize relaxing the jurisdictional docket-fee requirement; those cases addressed filing location/analogy, not fee substitution | Held: Olmer/Stigge do not permit avoiding strict compliance with the docket-fee requirement; those decisions applied procedure by analogy but did not abrogate the jurisdictional fee rule. |
| Whether the district court erred in considering Elkhorn Valley Sportsman Club’s motion to dismiss | Kowalewskis: assigned error to court’s consideration of the Club’s motion | Club: motion was proper and dismissal motion could be raised by any appellee; jurisdictional issue properly decided | Held: No reversible error; the jurisdictional dismissal was appropriate and consideration of the Club’s motion did not render dismissal improper. |
Key Cases Cited
- Stigge v. Graves, 213 Neb. 847, 332 N.W.2d 49 (Neb. 1983) (discussed analogies for appeals not originating in county court)
- In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (Neb. 2008) (applied §25-2729 procedure by analogy for appeals from county entities but did not excuse jurisdictional fee requirements)
- Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (Neb. 2021) (presumption of legislative acquiescence where judicial construction of a statute has not been amended)
- Porter v. Porter, 309 Neb. 167, 959 N.W.2d 235 (Neb. 2021) (recognizes that the right of appeal is statutory)