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Nebraska Supreme Court Advance S

300 Nebraska Report

ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

Estate of Gerald Schluntz et al., appellants

Lower Republican Natural Resources Di

a political subdivision, appelle

___ N.W.2d ___

Filed July 20, 2018. No. S-17-970.

1. Rules of the Supreme Court: Appeal and Error. Headings in the argument section of a brief do not satisfy the requirements of Neb. Ct. R. 

App. P. § 2-109(D)(1) (rev. 2014).

2. Jurisdiction: Appeal and Error. Jurisdictional determinations that do 

not involve a factual dispute are reviewed de novo.

3. Statutes: Appeal and Error. Issues of statutory interpretation present a 

question of law that an appellate court independently reviews.

4. Rules of the Supreme Court: Appeal and Error. Where an appellate 

brief fails to comply with the mandate of the appellate rule governing 

the form and content thereof, the appellate court may proceed as though 

the party failed to file a brief or, alternatively, may examine the proceedings for plain error.

5. Appeal and Error. Plain error is error plainly evident from the record 

and of such a nature that to leave it uncorrected would result in damage 

to the integrity, reputation, or fairness of the judicial process.

6. Statutes: Judicial Construction: Legislature: Presumptions: Intent. 

Where a statute has been judicially construed and that construction has 

not evoked an amendment, it is presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent.

7. Actions: Jurisdiction: Appeal and Error. Where a district court has 

statutory authority to review an action, the district court acquires jurisdiction only if the review is sought in the mode and manner and within 

the time provided by statute.

Appeal from the District Court for Furnas County: David W

Urbom, Judge. Affirmed

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/14/2018 01:09 AM CDT
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Nebraska Supreme Court Advance S

300 Nebraska Report

ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

Thomas G. Lieske, of Lieske, Lieske & Ensz, P.C., L.L.O., 

for appellants.

Katherine J. Spohn and Blake E. Johnson, of Bruning Law 

Group, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ

Papik, J

In certain statutorily defined circumstances, parties 

aggrieved by actions taken by Nebraska administrative agencies or political subdivisions can seek review in district court 

in accordance with the Administrative Procedure Act (APA). 

The APA directs that proceedings for such review be instituted by filing a petition in the “district court of the county 

where the action is taken.” Neb. Rev. Stat. § 84-917(2)(a)(i) 

(Reissue 2014). We have previously held and reaffirm today 

that this language requires that a petition for review be filed 

in the district court of the county in which the first adjudicated hearing of a disputed claim took place. Because the 

petition in this case was not filed in the district court of 

the county where the first adjudicated hearing occurred, we 

affirm the district court’s dismissal for lack of subject matter 

jurisdiction.

BACKGROUND

In July 2016, the Lower Republican Natural Resources 

District (LRNRD), filed a complaint against the estate of 

Gerald Schluntz, Julie Smith, and Tamara Bishop (appellants) 

in this matter. LRNRD is a political subdivision authorized 

to regulate ground water usage. In its complaint, LRNRD 

alleged that appellants, owners and operators of farmland 

located in Furnas County, Nebraska, had violated LRNRD 

rules regarding ground water use. Public hearings followed in 

which appellants were represented by counsel. Importantly for 
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Nebraska Supreme Court Advance S

300 Nebraska Report

ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

purposes of this appeal, it is undisputed that the first hearing 

(and all subsequent hearings) took place in LRNRD’s offices 

in Harlan County, Nebraska. LRNRD later issued an order 

entitled “Cease and Desist Order and Order Imposing Civil 

Penalties.” Appellants contend that the LRNRD order had 

the effect of prohibiting them from irrigating certain acres 

of farmland.

Appellants attempted to obtain review of the LRNRD order 

by filing a petition in the district court for Furnas County. 

In the petition, appellants asked that the LRNRD order be 

vacated, alleging, among other things, that LRNRD did not 

follow proper procedures and that its actions were arbitrary 

and capricious.

LRNRD moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. The district court granted 

the motion on subject matter jurisdiction grounds. The district court explained that under the Nebraska Ground Water 

Management and Protection Act, appeals of orders issued by 

natural resources districts are governed by the APA, which 

requires that proceedings for review be commenced by “filing 

a petition in the district court of the county where the action 

is taken.” § 84-917(2)(a)(i). The district court then noted several decisions from this court interpreting “the county where 

the action is taken” under the APA to mean the county where 

the first adjudicated hearing of a disputed claim took place. 

Because there was no dispute that all hearings regarding the 

LRNRD order were held in Harlan County, the district court 

concluded it did not have subject matter jurisdiction over the 

petition brought in Furnas County and granted the motion 

to dismiss.

ASSIGNMENT OF ERROR

[1] Appellants failed to include in their brief on appeal a 

separate section assigning error in the district court’s order 

of dismissal. The table of contents in appellants’ brief does 
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300 Nebraska Report

ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

contain a sentence under the heading for “Argument” stating, 

“The Court erred by dismissing the appeal of the Appellants’ 

Petition in Error which was filed in the District Court of 

Furnas County.” We have previously made clear, however, that 

headings in the argument section of a brief do not satisfy the 

requirements of Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014), 

see, e.g., In re Interest of Samantha L. & Jasmine L., 286 Neb. 

778, 839 N.W.2d 265 (2013), and we see no reason to treat a 

heading within the table of contents differently.

STANDARD OF REVIEW

[2-5] We review jurisdictional determinations that do not 

involve a factual dispute de novo. See Butler Cty. Sch. Dist. v. 

Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d 724 (2012). 

Issues of statutory interpretation also present a question of law 

that we independently review. Id. However, where a party’s 

brief fails to comply with § 2-109(D)(1), we may proceed as 

though the party failed to file a brief or, alternatively, may 

examine the proceedings for plain error. See In re Interest of 

Samantha L. & Jasmine L., supra. Plain error is error plainly 

evident from the record and of such a nature that to leave it 

uncorrected would result in damage to the integrity, reputation, 

or fairness of the judicial process. Id.

ANALYSIS

Despite appellants’ failure to assign error in the manner 

contemplated by our rules, the basis for appellants’ appeal is 

nonetheless clear: They contend that the district court erred 

by finding it lacked subject matter jurisdiction and ordering 

dismissal. In the end, the appropriate standard of review is not 

crucial to resolving this appeal, because we find no error in the 

district court’s order of dismissal, let alone error sufficiently 

obvious to merit reversal on the basis of plain error.

Appellants contend that this action was properly brought in 

the district court for Furnas County, because the farmland at 
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ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

issue is located in Furnas County. According to appellants, the 

district court for Furnas County had jurisdiction pursuant to 

Neb. Rev. Stat. § 25-401 (Reissue 2016). Section 25-401 does 

not, however, apply to the petition appellants filed in this case. 

Section 25-401 states that “[a]ll actions to recover damages 

for any trespass upon or any injury to real estate . . .” shall be 

brought in the district court in the county where the real estate 

at issue is located. Appellants did not bring an action for damages for trespass upon or injury to real estate or any other type 

of action covered by § 25-401. Rather, they filed a petition for 

judicial review of an order issued by a natural resources district. Section 25-401 does not apply here.

The statute that does govern here is a provision of the 

Ground Water Management and Protection Act, Neb. Rev. 

Stat. § 46-750 (Reissue 2010). That statute provides that those 

aggrieved by orders of a natural resources district have the 

right to seek review but that such review “shall be in accordance with the [APA].” As noted above, the APA, in turn, 

directs that petitions for review be filed “in the district of 

the county where the action is taken.” § 84-917(2)(a)(i). On 

numerous occasions over the last several decades, we have 

held that for purposes of the APA, the “county where the 

action is taken” is the county where the first adjudicated hearing regarding a disputed claim was held. See, Nebraska Dept. 

of Health & Human Servs. v. Weekley, 274 Neb. 516, 741 

N.W.2d 658 (2007); Essman v. Nebraska Law Enforcement 

Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997); Metro 

Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996), 

disapproved on other grounds, State v. Nelson, 274 Neb. 304, 

739 N.W.2d 199 (2007); Bd. of Ed. of Keya Paha County 

v. State Board of Education, 212 Neb. 448, 323 N.W.2d 

89 (1982).

Appellants acknowledge our decisions adopting the “first 

adjudicated hearing” interpretation, but invite us to adopt a different interpretation of the APA’s language when a party seeks 
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ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

review of an administrative action pertaining to real estate. 

Appellants suggest that such an interpretation would eliminate 

potential confusion, because while there may be multiple hearings in multiple counties regarding a given matter, litigants 

“always know where the land is.” Brief for appellants at 5. 

They also contend that their preferred interpretation would 

reduce the potential for confusion, because other types of 

actions involving land can be brought in the county where the 

land is located.

We must decline appellants’ invitation to deviate from our 

decisions interpreting the exact same statutory language of 

the APA that is at issue in this case. Rather than reducing the 

potential for confusion, we believe we would be producing 

confusion if we were to interpret the phrase “county where 

the action is taken” to mean different things depending on 

the factual context of the underlying administrative action. As 

we have previously explained, the “first adjudicated hearing” 

interpretation provides a clear rule and “grafting unnecessary exceptions upon it” would only “complicate compliance.” 

Essman, 252 Neb. at 352, 562 N.W.2d at 358.

[6] Furthermore, where a statute has been judicially construed and that construction has not evoked an amendment, 

it is presumed that the Legislature has acquiesced in the 

court’s determination of the Legislature’s intent. Heckman 

v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). As the 

Legislature has not responded to any of our prior decisions 

interpreting this language with an amendment, we must presume it has acquiesced to the “first adjudicated hearing” 

interpretation.

[7] Because the APA requires that review be sought in the 

district court in the county where the first adjudicated hearing took place, appellants filed their petition in the wrong 

court. There is no dispute that the first hearing regarding 

the LRNRD order was held in Harlan County, yet appellants 

filed their petition in the district court in Furnas County. 
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Nebraska Supreme Court Advance S

300 Nebraska Report

ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD

Cite as 300 Neb. 582

Faced with a petition for review filed in the wrong court, the 

district court had no choice but to dismiss. Where a district 

court has statutory authority to review an action, the district 

court acquires jurisdiction only if the review is sought in 

the mode and manner and within the time provided by statute. J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 

N.W.2d 893 (2017). Appellants did not seek review in the 

manner provided by statute, and thus the district court did not 

acquire jurisdiction.

CONCLUSION

Because appellants did not file their petition for review 

in the district court in the county in which the first adjudicated hearing regarding the disputed claim was held, the district court correctly dismissed on subject matter jurisdiction 

grounds. We affirm.

Affirmed