McEwen v. Nebraska State College Sys.
931 N.W.2d 120
Neb.2019Background
- Dr. Robert McEwen filed a petition in error in Dawes County district court challenging his termination by the Nebraska State College System (NSCS); the district court denied relief by a memorandum order (March judgment).
- Ten days later McEwen filed a motion for new trial or alternatively to vacate the March judgment; the district court denied both by order entered in May (May order).
- McEwen appealed; the Nebraska Court of Appeals dismissed for lack of jurisdiction, reasoning McEwen’s postjudgment motion did not toll the appeal deadline and only the May order was appealable.
- McEwen sought further review in the Nebraska Supreme Court, which granted review to decide whether Neb. Rev. Stat. § 25-1329 (motion to alter or amend a judgment) applies to district court judgments entered on petitions in error (i.e., when the district court acts as an intermediate appellate court).
- The Supreme Court examined statutory text, legislative history, federal analogues (Fed. R. Civ. P. 59(e)), and prior Nebraska precedent (Goodman, Timmerman, Hausmann) and concluded § 25-1329 does apply to judgments entered in error proceedings.
- The Court reversed the Court of Appeals’ dismissal, held McEwen’s alternative motion qualified under § 25-1329 and thus tolled the appeal deadline, overruled prior contrary precedent to the extent necessary, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 25-1329 (motion to alter or amend) applies to judgments entered by a district court disposing of a petition in error (district court acting as intermediate appellate court) | McEwen: A petition in error is an original civil action producing a judgment; a timely postjudgment motion should qualify under § 25-1329 and toll appeal time | NSCS: Statutory scheme, usages of “rendition” vs “entry,” and prior case law support that § 25-1329 does not apply to district court appellate decisions; earlier precedents reflect legislative acquiescence | Held: § 25-1329 does apply to district court judgments on petitions in error; a timely motion to alter or amend (filed within 10 days and seeking substantive alteration) tolls the appeal period |
| Effect of a timely postjudgment motion filed in the district court (within 10 days) on the appellate filing deadline | McEwen: His alternative motion to vacate (filed within 10 days) functioned as a motion to alter or amend and thus tolled the appeal deadline | NSCS: The motion was a § 25-2001 motion and did not operate as a § 25-1329 motion to toll appeal time | Held: The court treated the motion by its substance; McEwen’s alternative motion qualified as a § 25-1329 motion and terminated the running of the appeal time |
| Whether prior Nebraska cases (Goodman, Timmerman, Hausmann) foreclose applying § 25-1329 to error proceedings | McEwen: Prior cases are inconsistent with statutory purpose and federal practice and should be revisited | NSCS: Prior judicial interpretations indicate legislative acquiescence; precedent should be followed | Held: Overruled prior decisions to the extent they held § 25-1329 inapplicable to district court judgments acting as intermediate appellate court; overruling justified to remove inconsistency and fulfill statutory purpose |
| Proper forum to address the merits after reversing on jurisdictional grounds | McEwen: Sought resolution of merits too | NSCS: Court of Appeals correctly focused on jurisdiction first | Held: Supreme Court reversed the jurisdictional dismissal and remanded to the Court of Appeals to address the merits in the first instance |
Key Cases Cited
- Goodman v. City of Omaha, 274 Neb. 539 (2007) (held § 25-1329 did not apply to district court appellate decisions)
- Timmerman v. Neth, 276 Neb. 585 (2008) (applied Goodman to APA review and held motion to alter or amend did not toll appeal time)
- Capitol Construction v. Skinner, 279 Neb. 419 (2010) (addressed finality of order denying motion to reinstate and discussed whether denial could be independently appealable)
- State v. Hausmann, 277 Neb. 819 (2009) (recognized district court’s inherent power to reconsider but held such motions generally do not toll appeal time)
- State v. Bellamy, 264 Neb. 784 (2002) (recognized statutory amendment adding § 25-1329 and treated substance over title for postjudgment motions)