McEwen v. Nebraska State College Sys.
303 Neb. 552
| Neb. | 2019Background
- Dr. Robert McEwen, a tenured professor, filed a timely petition in error in Dawes County district court challenging his termination by the Nebraska State College System (NSCS).
- The district court entered a memorandum order denying McEwen’s petition in error (the March judgment).
- Within 10 days McEwen filed an alternative motion styled as a motion for new trial or, in the alternative, to vacate the March judgment; the district court denied both parts by a May order.
- McEwen appealed from the May order; the Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction, reasoning McEwen’s postjudgment motion did not toll the time to appeal from the March judgment.
- McEwen sought further review in the Nebraska Supreme Court, which granted review and asked the parties whether Neb. Rev. Stat. § 25-1329 (motion to alter or amend a judgment) applies to district-court judgments entered after petition-in-error proceedings.
- The Supreme Court concluded § 25-1329 does apply to judgments disposing of petitions in error, reversed the Court of Appeals, overruled prior conflicting precedent, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 25-1329 (motion to alter/amend) applies to a district court judgment disposing of a petition in error | McEwen: A petition in error is an original civil action producing a judgment; his timely postjudgment motion (filed within 10 days) should be treated as a § 25-1329 motion and toll the appeal period | NSCS: Statutory scheme and prior cases treat district-court judicial-review decisions as appellate decisions not covered by § 25-1329; wording differences ("entry" v. "rendition") show § 25-1329 was not intended to apply | Held: § 25-1329 applies to district-court judgments entered after petition-in-error proceedings; a substantive postjudgment motion filed within 10 days halts the appeal period |
| Whether the May order was independently final and appealable so that McEwen could appeal that order instead of the March judgment | McEwen contended the May order was a final, appealable order under § 25-2001 and Capitol Construction | NSCS argued the May order did not change the March judgment’s merits and thus was not independently appealable; the appeal should be from the March judgment | Held: The May order was not independently final on the merits; McEwen’s remedy depended on whether his alternative motion qualified under § 25-1329 (which the Court held it did) |
| Whether prior Nebraska cases (Goodman, Timmerman, Hausmann) preclude applying § 25-1329 to district-court appellate-role judgments | McEwen urged overruling or limiting those precedents to avoid a procedural trap and harmonize the law | NSCS relied on stare decisis and legislative acquiescence to prior constructions | Held: The Court overruled Goodman and related decisions to the extent they held § 25-1329 inapplicable to district-court intermediate appellate judgments, finding overruling justified to eliminate inconsistency |
| Procedural consequence: Does a timely postjudgment substantive motion filed within 10 days toll the time to appeal from a district court judgment on petition in error? | McEwen: Yes, it tolls the appeal period | NSCS: No, based on prior case law and statutory interpretation | Held: Yes; such a motion qualifies as a § 25-1329 motion and terminates (tolls) the running of the appeal time under § 25-1912(3). |
Key Cases Cited
- Goodman v. City of Omaha, 274 Neb. 539 (2007) (held § 25-1329 did not apply to district court acting as intermediate appellate court; later overruled in part)
- Timmerman v. Neth, 276 Neb. 585 (2008) (extended Goodman to APA judicial-review appeals)
- Capitol Construction v. Skinner, 279 Neb. 419 (2010) (discussed finality of orders denying motions to reinstate; distinguished independent-finality appeals)
- State v. Bellamy, 264 Neb. 784 (2002) (recognized § 25-1329 and that a motion’s substance, not title, determines if it qualifies under the statute)
- State v. Hausmann, 277 Neb. 819 (2009) (noted district court acting as appellate court has inherent power to reconsider but motions to do so do not toll appeal time absent applicable rule)