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296 Nebraska Report

HECKMAN v. MARCHIO

Cite as 296 Neb. 458

Bryan R. Heckman, appelle

Regina M. Marchio, appe

___ N.W.2d ___

Filed April 21, 2017. No. S-16-379.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that 

does not involve a factual dispute presents a question of law, which an 

appellate court independently decides.

2. Courts: Jurisdiction: Legislature: Appeal and Error. In order for the 

Nebraska Supreme Court to have jurisdiction over an appeal, appellate 

jurisdiction must be specifically provided by the Legislature.

3. Appeal and Error. The right of appeal in Nebraska is purely statutory.

4. ____. Unless a statute provides for an appeal, such right does not exist.

5. Constitutional Law: Jurisdiction: Appeal and Error. Except in those 

cases wherein original jurisdiction is specifically conferred by Neb. 

Const. art. V, § 2, the Nebraska Supreme Court exercises appellate 

jurisdiction.

6. Constitutional Law. Nebraska’s separation of powers clause prohibits 

the three governmental branches from exercising the duties and prerogatives of another branch.

7. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, the party must be appealing from a 

final order or a judgment.

8. Courts: Jurisdiction: Legislature: Statutes: Appeal and Error. 

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.

9. Courts: Legislature: Statutes: Time: Appeal and Error. 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 where it is not authorized by statute.

10. Public Policy. While the doctrine of stare decisis is entitled to great 

weight, it is grounded in the public policy that the law should be stable, 

fostering both equality and predictability of treatment.

Nebraska Supreme Court Online Library

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

07/14/2017 09:11 AM CDT
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11. Appeal and Error. Remaining true to an intrinsically sounder doctrine 

better serves the values of stare decisis than following a more recently 

decided case inconsistent with the decisions that came before it.

12. Jurisdiction: Final Orders: Case Overruled. The Nebraska Supreme 

Court’s decision in Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 

430 (1997), and cases relying upon it are overruled to the extent that 

they authorized appellate jurisdiction in the absence of a judgment or 

final order and without specific statutory authorization.

Appeal from the District Court for Dodge County: Geoffre

C. Hall, Judge. Appeal dismissed

Jeremy Jorgenson and David J. Reed, of Jorgenson, Reed & 

VandenBosch, L.L.C., for appellant.

Julie Fowler and Brendan M. Kelly, of Fowler & Kelly Law, 

L.L.P., for appellee.

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

Kelch, and Funke,

Cassel, J.

INTRODUCTION

This is an appeal from an order disqualifying counsel in 

a civil case. Twenty years ago, this court “adopt[ed] the rule 

articulated in [a Massachusetts decision1]” to allow for an 

immediate appeal from a nonfinal order such as this.2 In doing 

so, we improperly exceeded our statutory and constitutional 

authority. Because an appeal from the order at issue is not 

statutorily authorized, we dismiss the appeal.

BACKGROUND

Bryan R. Heckman filed a complaint against Regina M. 

Marchio, seeking to establish paternity, custody, and support 

of a minor child born to the parties. Sometime thereafter, he 

moved to disqualify Marchio’s attorney. Following a hearing 

1 See Maddocks v. Ricker, 403 Mass. 592, 531 N.E.2d 583 (1988).

2 Richardson v. Griffiths, 251 Neb. 825, 831, 560 N.W.2d 430, 435 (1997).
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on the motion, the district court entered an order granting the 

motion to disqualify Marchio’s attorney. Marchio timely filed 

a motion to reconsider, which the court denied. Marchio filed 

a purported appeal from that order, and we moved the case to 

our docket.3

ASSIGNMENTS OF ERROR

Marchio assigns seven errors, all of which relate to the 

district court’s disqualification of her privately retained legal 

counsel.

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual 

dispute presents a question of law, which an appellate court 

independently decides.4

ANALYSIS

Marchio asserts that the order of disqualification is appealable under Richardson v. Griffiths.5

 As explained below, 

we exceeded our statutory and constitutional authority in 

adopting the so-called Richardson exception to the final 

order requirement. In doing so, we improperly circumvented 

our final order statute6 and improperly expanded our own 

jurisdiction.

Foundation and Constitu

Underpinnings for App

Jurisdicti

[2-4] Recently, we stated that in order for this court to 

have jurisdiction over an appeal, appellate jurisdiction must 

be specifically provided by the Legislature.7 This fundamental 

3 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

4 Addy v. Lopez, 295 Neb. 635, 890 N.W.2d 490 (2017).

5 Richardson v. Griffiths, supra note 2.

6 See Neb. Rev. Stat. § 25-1902 (Reissue 2016).

7 See Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014).
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principle was not new. In 1873, this court stated that “no 

appeal exists except by authority of statute”8 and that “appeals 

do not exist by any right other than by statute.”9 Over and over, 

we have iterated that the right of appeal in Nebraska is “purely 

statutory.”10 In other words, unless a statute provides for an 

appeal, such right does not exist.11 The right to appeal did not 

exist at common law.12

[5,6] The Nebraska Constitution allocates the regulation 

of appellate jurisdiction to the Legislature, not to this court. 

Except in those cases wherein original jurisdiction is specifically conferred by Neb. Const. art. V, § 2, the Nebraska 

Supreme Court exercises appellate jurisdiction.13 The 

Nebraska Constitution expressly provides for “such appellate jurisdiction as may be provided by law.”14 The Nebraska 

Constitution also divides the powers of the government into 

8 The Sioux City and Pacific R. R. v. Washington County, etc., 3 Neb. 30, 34 

(1873).

9 Irwin, et ux. v. Calhoun & Croxton, 3 Neb. 453, 454 (1873).

10 See Huskey v. Huskey, supra note 7, 289 Neb. at 448, 855 N.W.2d at 

385. Accord, Languis v. De Boer, 181 Neb. 32, 146 N.W.2d 750 (1966); 

Elliott v. City of Auburn, 172 Neb. 1, 108 N.W.2d 328 (1961); McDonald 

v. Rentfrow, 171 Neb. 479, 106 N.W.2d 682 (1960); Watkins v. Dodson, 

159 Neb. 745, 68 N.W.2d 508 (1955); From v. Sutton, 156 Neb. 411, 

56 N.W.2d 441 (1953); Mid-Continent Airlines, Inc. v. State Board, 154 

Neb. 371, 48 N.W.2d 81 (1951); Loup River Public Power District v. 

Platte County, 135 Neb. 21, 280 N.W. 430 (1938); Roberts v. City of 

Mitchell, 131 Neb. 672, 269 N.W. 515 (1936); McCague Investment Co. v. 

Metropolitan Water District, 101 Neb. 820, 165 N.W. 158 (1917); Whedon 

v. Lancaster County, 76 Neb. 761, 107 N.W. 1092 (1906); Hacker v. 

Howe, 72 Neb. 385, 101 N.W. 255 (1904); Clarke v. Nebraska Nat. Bank, 

49 Neb. 800, 69 N.W. 104 (1896); Chicago, B. & Q. R. Co. v. Headrick, 

49 Neb. 286, 68 N.W. 489 (1896).

11 See From v. Sutton, supra note 10.

12 See, id.; Hanika v. State, 87 Neb. 845, 128 N.W. 526 (1910); Wilcox v. 

Saunders, 4 Neb. 569 (1876).

13 Huskey v. Huskey, supra note 7.

14 Neb. Const. art. V, § 2.
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three distinct departments—legislative, executive, and judicial.15 Nebraska’s separation of powers clause16 prohibits the 

three governmental branches from exercising the duties and 

prerogatives of another branch.17 These constitutional provisions prevent courts from inventing rules to enlarge appellate jurisdiction.

We have applied these principles in numerous ways. We 

have said that an appellate court acquires no jurisdiction 

unless the appellant has satisfied the statutory requirements 

for appellate jurisdiction.18 We have also said that when the 

Legislature fixes the time for taking an appeal, the courts 

have no power to extend the time directly or indirectly.19 Long 

ago, we explained that the Legislature has general power to 

fix the time limit for taking an appeal and, having prescribed 

such time, that the trial court has no power to extend the time 

directly or indirectly.20

[7] Directly to the point, we have said that for an appellate court to acquire jurisdiction of an appeal, the party must 

be appealing from a final order or a judgment.21 And we have 

recited this principle or its equivalent so many times as not to 

require further citation.

Richardson Excep

In 1997, this court decided Richardson v. Griffiths.

22 We 

were confronted with an issue similar to the issue now before 

15 See Neb. Const. art. II, § 1.

16 Id.

17 Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).

18 See Wright v. Omaha Pub. Sch. Dist., 280 Neb. 941, 791 N.W.2d 760 

(2010).

19 See Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).

20 See Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933).

21 See Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014).

22 Richardson v. Griffiths, supra note 2.
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us. In Richardson, the issue was whether a law firm should 

be disqualified from representing the appellants because of 

a prior contact between one of the appellees and an attorney 

with the law firm. We observed that the district court’s order 

disqualifying the law firm was not a final order, but we determined that the order was appealable under an exception to the 

final order requirement.

We did not, however, provide any statutory authority for 

the purported exception. Rather, we quoted the holding from a 

Massachusetts case that “‘if the appeal from an order of disqualification involves issues collateral to the basic controversy 

and if an appeal from a judgment dispositive of the entire case 

would not be likely to protect the client’s interests, interlocutory review is appropriate.’”23 Without any analysis as to how 

that rule fits with our statutory requirement of a final order, 

we adopted the rule as an exception to the final order requirement. In subsequent cases, we referred to the above rule as the 

“Richardson exception to the final order requirement.”24 We 

have used our decision in Richardson or its progeny on eight 

occasions (one implicitly) to provide for jurisdiction.25 On one 

occasion, we allowed an appeal from an order disqualifying 

23 Id. at 831, 560 N.W.2d at 435, quoting Maddocks v. Ricker, supra

note 1.

24 See Trainum v. Sutherland Assocs., 263 Neb. 778, 783, 642 N.W.2d 816, 

820 (2002). Accord, Mutual Group U.S. v. Higgins, 259 Neb. 616, 611 

N.W.2d 404 (2000); Hawkes v. Lewis, 255 Neb. 447, 586 N.W.2d 430 

(1998). See, also, State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006); 

State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 

N.W.2d 905 (2005); Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 

N.W.2d 558 (2004).

25 See, Beller v. Crow, 274 Neb. 603, 742 N.W.2d 230 (2007); State v. Kawa, 

270 Neb. 992, 708 N.W.2d 662 (2006); State v. Ehlers, 262 Neb. 247, 631 

N.W.2d 471 (2001); Mutual Group U.S. v. Higgins, supra note 24; Detter 

v. Schreiber, 259 Neb. 381, 610 N.W.2d 13 (2000); Hawkes v. Lewis, 

supra note 24; Bechtold v. Gomez, 254 Neb. 282, 576 N.W.2d 185 (1998); 

Richardson v. Griffiths, supra note 2.
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an attorney under a concept referred to as the “collateral order 

doctrine.”26 But the U.S. Supreme Court has disallowed interlocutory appeals of orders disqualifying counsel in civil cases 

and has specifically held that such orders do not fall within 

the collateral order doctrine applicable in the federal court 

system.27 Our Richardson decision did not mention the U.S. 

Supreme Court’s decision.

This absence of any statutory basis for the Richardson

exception did not go unnoticed. One commentator stated:

An appellate court has only the jurisdiction that the statutes give. The court glossed over that fact in Richardson

when it recognized an exception to the final judgment 

rule for which it cited no statutory basis. It is unlikely 

that the omission of a statutory cite was inadvertent. 

Section 25-1902 specifies three types of final orders, 

which implies that there are no others. The court therefore has no statutory basis for recognizing another type 

of final order.28

[8,9] This court should not have adopted the Richardson

exception to the final order requirement. We used it 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,29 courts have no power to 

allow an appeal when it is not authorized by statute.

26 See Jacob North Printing Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596 

(2010).

27 See Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 

L. Ed. 2d 340 (1985).

28 John P. Lenich, What’s So Special About Special Proceedings? Making 

Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 308 (2001).

29 See Fitzgerald v. Fitzgerald, supra note 19.
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The commentator,30 in a respectful way, exposed our usurpation of legislative authority. He recommended using the 

language of the collateral order doctrine because “[i]t squares 

with what the court is doing.”31 And then, recognizing that we 

had “no statutory basis for recognizing another type of final 

order”32 and that our interpretation was “neither supported by 

the language nor the history of the statute,”33 he attempted to 

cover our mistake in the rubric of legislative acquiescence. 

That gave us too much credit.

Legislative acquiescence does not apply. Where a statute has 

been judicially construed and that construction has not evoked 

an amendment, it will be presumed that the Legislature has 

acquiesced in the court’s determination of the Legislature’s 

intent.34 But in applying the Richardson exception, we have 

never purported to interpret a statute as allowing for an interlocutory appeal. Thus, there has been no interpretation of any 

statute in which the Legislature could be characterized to have 

acquiesced. Quite to the contrary, this court admitted that the 

disqualification order “d[id] not meet any of the definitions 

of a final order.”35 Nonetheless, without citing any statute, we 

baldly proclaimed an exception.

Moreover, in analogous circumstances, judges have soundly 

rejected legislative acquiescence. In State v. Burlison,

36 a 

concurring opinion addressed a dissent’s assertion that the 

Legislature acquiesced in this court’s earlier holding (overruled 

in Burlison) that malice was an essential element of second 

30 See Lenich, supra note 28.

31 Id. at 307.

32 Id. at 308.

33 Id.

34 Parnell v. Good Samaritan Health Sys., 260 Neb. 877, 620 N.W.2d 354 

(2000).

35 Richardson v. Griffiths, supra note 2, 251 Neb. at 830, 560 N.W.2d at 434.

36 State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998) (Wright, J., 

concurring; Connolly and Gerrard, JJ., join).
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degree murder. We observed in Burlison that all crimes are 

statutory in Nebraska.37 Here, as we have already explained, 

appellate jurisdiction in Nebraska is purely statutory. The concurrence stated:

An appellate court is empowered to construe a statute, but it may not assume the role of the Legislature. 

Therefore, judicial construction is constitutionally permissible, but judicial legislation is not. Insertion of the element of malice into [Neb. Rev. Stat.] § 28-304 [(Reissue 

2016)] was not a judicial construction of the legislative 

intent of the statute, but amounted to judicial legislation, which violated article II, § 1, of the Nebraska 

Constitution.38

Although Burlison addressed substantive law and we address 

procedure, the same principle applies to appellate jurisdiction: 

An appellate court is empowered to construe a statute governing when an appeal may be taken, but it may not engage 

in judicial legislation by proclaiming an exception contrary 

to statute. The Richardson exception was not a judicial construction of § 25-1902; instead, adoption of the exception 

amounted to judicial legislation.

[10,11] Respect for precedent should not prevent us from 

restoring our adherence to the Nebraska Constitution and 

statutes. We have said that while the doctrine of stare decisis is entitled to great weight, it is grounded in the public 

policy that the law should be stable, fostering both equality 

and predictability of treatment.39 And we have recognized 

that overruling precedent is justified when the purpose is to 

eliminate inconsistency.40 Thus, we said that remaining true 

to an intrinsically sounder doctrine better serves the values 

37 State v. Burlison, supra note 36.

38 Id. at 201-02, 583 N.W.2d at 39 (Wright, J., concurring; Connolly and 

Gerrard, JJ., join).

39 State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).

40 See id.
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of stare decisis than following a more recently decided case 

inconsistent with the decisions that came before it.41 The 

U.S. Supreme Court has identified a number of relevant factors in deciding whether to adhere to the principle of stare 

decisis, including workability, the antiquity of the precedent, 

whether the decision was well reasoned, whether experience 

has revealed the precedent’s shortcomings, and the reliance 

interests at stake.42 The Court explained that “reliance interests 

are important considerations in property and contract cases, 

where parties may have acted in conformance with existing 

legal rules in order to conduct transactions.”43 But we see 

no history showing that people have structured their transactions or behavior in reliance on the Richardson exception. 

Here, fundamental principles compel corrective action. Having 

recognized, however belatedly, that the Richardson exception represents judicial legislation proscribed by the Nebraska 

Constitution, we cannot allow the doctrine of stare decisis to 

perpetuate our mistake.

[12] We therefore overrule our decision in Richardson v. 

Griffiths44 and cases relying upon it45 to the extent that they 

authorized appellate jurisdiction in the absence of a judgment 

or final order and without specific statutory authorization.

Although policy reasons were proffered in support 

of such an exception, these arguments must be addressed 

to the Legislature. We acknowledge that two states have 

41 Id.

42 See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 130 S. Ct. 

876, 175 L. Ed. 2d 753 (2010).

43 Id., 558 U.S. at 365.

44 Richardson v. Griffiths, supra note 2.

45 See, Jacob North Printing Co. v. Mosley, supra note 26 (collateral order 

doctrine); Beller v. Crow, supra note 25; State v. Kawa, supra note 25; 

State v. Ehlers, supra note 25; Mutual Group U.S. v. Higgins, supra note 

24; Detter v. Schreiber, supra note 25; Hawkes v. Lewis, supra note 24; 

Bechtold v. Gomez, supra note 25. See, also, McKenzie v. City of Omaha, 

12 Neb. App. 109, 668 N.W.2d 264 (2003).
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specifically authorized an interlocutory appeal from an order 

disqualifying an attorney for any party.46 But the key policy 

question is whether a disqualification order can effectively 

be reviewed following a judgment on the merits. The U.S. 

Supreme Court decisively concluded that effective review 

was possible.47 All that is required is a “willing[ness] when 

necessary to set aside verdicts—even when they result from 

lengthy civil proceedings.”48 We rely upon the Legislature, 

exercising its proper constitutional authority, to determine 

whether the Richardson exception should be placed in our 

statutory law.

CONCLUSION

Because this appeal was not taken from a final order and 

because we overrule our line of decisions purporting to authorize an interlocutory appeal, we dismiss the appeal.

Appeal dismissed

46 See Ark. R. App. P.—Civ. 2(a)(8) (2014), and Ill. S. Ct. R. 306(a)(7) (eff. 

Mar. 8, 2016).

47 See Richardson-Merrell Inc. v. Koller, supra note 27.

48 Id., 472 U.S. at 442 (Brennan, J., concurring).