E.D. v. Bellevue Pub. Sch. Dist.
E.D. v. Bellevue Pub. Sch. Dist.
Opinion of the Court
E.D. brought suit against the Bellevue Public School District (BPS) and Bradley Nord, under the Political Subdivisions Tort Claims Act (PSTCA).
BACKGROUND
In November 2016, E.D. filed a complaint in district court alleging various negligence claims against BPS and Nord. In the complaint, E.D. alleged, inter alia, the following: While Nord was a BPS teacher and E.D. was a BPS student, above the age of legal consent, Nord made nonconsensual sexual contact with E.D. that began a nearly yearlong sexual relationship between the two occurring primarily on BPS premises.
E.D.'s negligence claims assert, generally, that BPS breached its duty to provide a safe environment to students and to enact reasonable policies governing an extracurricular teacher's aide program, which paired E.D. and Nord, to protect students. E.D. claims that her harm was a foreseeable result of BPS' negligence.
BPS and Nord filed separate motions to dismiss claiming sovereign immunity under the PSTCA's intentional tort exception,
The Nebraska Court of Appeals dismissed BPS' appeal for lack of jurisdiction, *655under Neb. Ct. R. App. P. § 2-107(A)(2) (rev. 2017), finding the ruling on the motion to dismiss was not a final, appealable order. BPS filed a motion for reconsideration. The Court of Appeals granted the motion for reconsideration and reinstated the appeal. We removed the case to our docket on our own motion pursuant to our authority to regulate the caseloads of the Court of Appeals and this court.
ASSIGNMENTS OF ERROR
BPS assigns, restated, that the court erred (1) in not finding it was entitled to immunity in this case; (2) in failing to dismiss all allegations of negligence against it because Nord's intentional acts were the "but for" cause of the allegations; and (3) in relying on third-party, instead of political subdivision employee, intentional act cases.
On cross-appeal, Nord assigns, restated, that the court erred in failing to find that he was entitled to immunity under the PSTCA.
STANDARD OF REVIEW
When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court.
ANALYSIS
E.D. argues this court is without statutory authority to consider this appeal because the court's order was not final and the collateral order doctrine does not apply in this case.
BPS concedes that the order it appealed from is not a final order but argues that we have jurisdiction over its appeal under the collateral order doctrine. It also asserts that E.D. is precluded from raising the issue of jurisdiction before this court because the Court of Appeals' decision to grant its motion for reconsideration and reinstate the appeal is the law of the case.
THIS COURT IS NOT PRECLUDED FROM CONSIDERING JURISDICTION
Before reaching the legal issues presented for review, it is our duty to determine whether we have jurisdiction over this appeal.
Further, the law-of-the-case doctrine, which precludes a trial court from reconsidering issues decided by an appellate court,
THERE IS NO STATUTORY AUTHORITY FOR PRESENT APPEAL
We have long held that appellate jurisdiction in Nebraska is purely statutory and an appellate court acquires no jurisdiction unless the appellant has satisfied *656the statutory requirements for appellate jurisdiction.
For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.
The three types of final orders that an appellate court may review are (1) an order that affects a substantial right and that determines the action and prevents a judgment, (2) an order that affects a substantial right made during a special proceeding, and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered.
The overruling of a motion to dismiss is typically not a final order.
In StoreVisions v. Omaha Tribe of Neb. ,
Our holding in StoreVisions was a continuation of several decisions in which we applied the collateral order doctrine to the appeals of nonfinal orders, the genesis of which was our decision in Richardson v. Griffiths .
Recently, however, in Heckman v. Marchio ,
Heckman also concerned an appeal from a court's granting of a motion to disqualify counsel in a civil case. In Heckman , we stated that our decision in Richardson had been directly contrary to a U.S. Supreme Court decision which specifically rejected the application of the collateral order doctrine to orders disqualifying counsel in civil cases.
We used [the Richardson exception] to provide for appellate jurisdiction where none would otherwise exist. Through the enactment of statutes, the Legislature has prescribed when a court may exercise appellate jurisdiction; the judicial branch may not circumvent such statutory authorization. Just as courts have no power to extend the time set by the Legislature for taking an appeal, courts have no power to allow an appeal when it is not authorized by statute.24
While our holding in Heckman was limited to overruling Richardson and our use of the Richardson exception, our reasoning therein is directly at odds with our continued application of the collateral order doctrine to an interlocutory order denying sovereign immunity.
In StoreVisions ,
However, like in Richardson ,
*658Similar to the court in Heckman , we find that our application of the collateral order doctrine to permit appeals from interlocutory orders denying sovereign immunity has no basis in the statutory definition of "final order" in § 25-1902. Section 25-1902 explicitly presents three orders that are considered "final" for the purposes of §§ 25-1911 and 25-1912. The intent of the Legislature is expressed by omission as well as by inclusion.
While the issues of legislative acquiescence and stare decisis are implicated in our current reconsideration of StoreVisions
CONCLUSION
Because this appeal was from a nonfinal order and because we overrule the application of the collateral order doctrine to the extent that it authorizes an interlocutory appeal from a denial of sovereign immunity, we dismiss the appeal and cross-appeal.
APPEAL DISMISSED .
Wright, J., not participating.
See § 13-910(7).
See
Tilson v. Tilson,
Cappel v. State,
See State v. Lavalleur,
See
See Heckman v. Marchio,
Heckman , supra note 9. See, also,
Tilson , supra note 4. See, also,
Tilson , supra note 4.
State v. Combs,
StoreVisions , supra note 15.
Richardson v. Griffiths,
See Williams v . Baird,
Richardson , supra note 18.
Heckman , supra note 9,
See, e.g., Williams , supra note 19.
See Richardson-Merrell Inc. v. Koller,
Heckman , supra note 9,
StoreVisions , supra note 15.
Hallie Mgmt. Co. v. Perry,
Williams , supra note 19.
See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. ,
Richardson , supra note 18.
See Cohen v. Beneficial Loan Corp.,
Heckman , supra note 9.
In re Interest of Samantha C.,
StoreVisions , supra note 15.
Reference
- Full Case Name
- E.D., and cross-appellee v. BELLEVUE PUBLIC SCHOOL DISTRICT, and Bradley Nord, and
- Cited By
- 86 cases
- Status
- Published