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BARRIOS v. COMMISSIONER OF LABOR

Cite as 25 Neb. App. 835

Walter A. Barrios, appellee, v. Commissioner of Labor

of the Nebraska Department of Labor, appellant, 

and Custom Rental Services, Inc., appellee.

___ N.W.2d ___

Filed April 24, 2018. No. A-17-635.

1. Administrative Law: Judgments: Appeal and Error. A judgment or 

final order rendered by a district court in a judicial review pursuant to 

the Administrative Procedure Act may be reversed, vacated, or modified 

by an appellate court for errors appearing on the record.

2. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Judgments: Appeal and Error. Whether a decision conforms to law 

is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the 

lower court.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate 

court to acquire jurisdiction of an appeal, there must be a final order 

entered by the court from which the appeal is taken; conversely, an 

appellate court is without jurisdiction to entertain appeals from nonfinal orders.

6. Final Orders: Appeal and Error. If an order is interlocutory, immediate appeal from the order is disallowed so that courts may avoid 

piecemeal review, chaos in trial procedure, and a succession of appeals 

granted in the same case to secure advisory opinions to govern further 

actions of the trial court.

7. Administrative Law: Appeal and Error. Under the Administrative 

Procedure Act, the district court sits as an intermediate appellate court.

Nebraska Supreme Court Online Library

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

05/01/2018 08:09 AM CDT
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8. Courts: Final Orders: Appeal and Error. When a district court, sitting 

as an intermediate appellate court, enters an order that affects a substantial right, that order is final for purposes of appeal if its judgment can be 

executed without any further action by the district court.

9. ____: ____: ____. Where the district court, sitting as an intermediate 

appellate court, reverses a judgment in favor of a party, and remands 

the matter for further proceedings, that party’s substantial right has 

been affected.

10. Estoppel: Words and Phrases. Equitable estoppel is a bar which precludes a party from denying or asserting anything to the contrary of 

those matters established as the truth by his or her own deeds, acts, or 

representations.

11. Equity: Estoppel. The doctrine of equitable estoppel applies where, 

as a result of conduct of a party upon which another person has in 

good faith relied to his or her detriment, the acting party is absolutely 

precluded, both at law and in equity, from asserting rights which might 

have otherwise existed.

12. Estoppel. The elements of equitable estoppel are, as to the party 

estopped: (1) conduct which amounts to a false representation or concealment of material facts, or at least which is calculated to convey 

the impression that the facts are otherwise than, and inconsistent with, 

those which the party subsequently attempts to assert; (2) the intention, 

or at least the expectation, that such conduct shall be acted upon by, or 

influence, the other party or other persons; and (3) knowledge, actual or 

constructive, of the real facts.

13. ____. The elements of equitable estoppel are, as to the party claiming 

estoppel: (1) lack of knowledge and of the means of knowledge of the 

truth as to the facts in question; (2) reliance, in good faith, upon the 

conduct or statements of the party to be estopped; and (3) action or 

inaction based thereon of such a character as to change the position or 

status of the party claiming the estoppel, to his or her injury, detriment, 

or prejudice.

14. Administrative Law: Courts: Appeal and Error. Under the 

Administrative Procedure Act, the district court has the discretion to 

remand a matter for resolution of issues that were not raised before 

the agency if the court determines that the interest of justice would 

be served by the resolution of any other issue not raised before 

the agency.

15. Rules of the Supreme Court: Administrative Law: Corporations: 

Attorneys at Law. Under the Nebraska Supreme Court rules, a corporate officer who is not a lawyer is not prohibited from representing the 

corporation at an agency hearing under certain conditions.
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Cite as 25 Neb. App. 835

Appeal from the District Court for Hall County: Mark

J. Young, Judge. Affirmed in part as modified, and in part 

reversed.

Katie S. Thurber, Thomas A. Ukinski, and Dale M. Shotkoski 

for appellant.

Thomas A. Wagoner for appellee Walter A. Barrios.

Riedmann and Bishop, Judges, and Inbody, Judge, Retired.

Riedmann, Judge.

INTRODUCTION

The Commissioner of Labor of the Nebraska Department of 

Labor (the Department) appeals the order of the district court 

for Hall County which remanded the matter to the Nebraska 

Appeal Tribunal for consideration of issues not previously 

raised. As explained below, we affirm in part as modified and 

in part reverse.

BACKGROUND

Walter A. Barrios was employed with Rogue Manufacturing 

Company (Rogue Manufacturing) for several years before he 

was laid off on October 8, 2015. He began working for Custom 

Rental Services, Inc. (Custom Rental), on October 12, but 

resigned on October 13. Barrios then applied for unemployment benefits through the Department.

Barrios’ application was initially granted, and he received 

benefits. After the Department completed its investigation, 

however, an adjudicator for the Department concluded in a 

notice of determination dated May 27, 2016, that because 

Barrios had voluntarily left his employment with Custom 

Rental without good cause, he was disqualified from receiving 

benefits under Neb. Rev. Stat. § 48-628 (Reissue 2010) for the 

week his employment ended and the 13 weeks immediately 

following. This disqualification resulted in an overpayment to 

Barrios of $3,552, which he was liable to repay.
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Barrios appealed the decision to the appeal tribunal. The 

appeal tribunal held a hearing, at which the sole issue was 

whether Barrios voluntarily left his employment with Custom 

Rental without good cause under § 48-628. Barrios testified 

that during his job interview with Custom Rental, he was told 

that he would be delivering tables and chairs to different locations. However, the only work he was asked to perform on 

October 12 and 13, 2015, was washing the outside of a building. He explained that he decided to quit because “the job I 

got was not the one that I was told I would do.” After Barrios 

left his employment with Custom Rental, he called the unemployment office. He testified that after he reported he “only 

had worked for [Custom Rental] for three days,” an employee 

stated, “‘Oh, no problem. I congratulate you.’”

The president of Custom Rental testified that during the 

days that Barrios worked, there were no deliveries that needed 

to be made. The president said that when that happens, the 

employees typically work on maintaining equipment or work 

on the facilities.

In a written order, the appeal tribunal concluded that Barrios 

failed to prove that he terminated his employment with Custom 

Rental for good cause. Therefore, he was subject to the 13-week 

disqualification period, and any benefits he received to which 

he was not entitled must be repaid. The Department’s determination was therefore affirmed. Barrios moved for reconsideration of the appeal tribunal’s decision, but the request 

was denied.

Barrios appealed the decision of the appeal tribunal to the 

district court for Hall County. In his amended petition, he 

alleged that the appeal tribunal erred in ordering that the benefits he received be repaid because he was eligible for benefits 

as a result of his employment at Rogue Manufacturing. In addition, Barrios claimed that the Department should be estopped 

from recouping the benefits paid to him because he detrimentally relied upon the representation of the Department’s 

employee that he was eligible for unemployment benefits.
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After holding a hearing and reviewing the evidence, the 

district court reversed the decision and remanded the matter 

to the appeal tribunal “in the interests of justice to resolve 

issues not raised before the agency.” Specifically, the court 

concluded that the matter should be remanded for consideration of whether the Department is estopped from seeking 

reimbursement of the benefits paid to Barrios when its employees initially awarded the benefits after knowing a voluntary 

withdrawal had occurred. The district court further remanded 

the matter for a determination of whether Barrios was entitled to unemployment benefits as a result of his employment 

with Rogue Manufacturing. Finally, the court found that plain 

error had occurred when the president of Custom Rental was 

allowed to participate in the hearing before the appeal tribunal 

and cross-examine witnesses. The district court concluded that 

unless the president was an attorney, he was prohibited from 

representing the corporation at the hearing. The Department 

timely appeals to this court.

ASSIGNMENTS OF ERROR

The Department assigns, summarized, that the district court 

erred in (1) remanding the matter for a determination of 

whether the Department is equitably estopped from seeking 

reimbursement of benefits paid to Barrios, (2) remanding the 

matter for a determination of whether Barrios is entitled to 

unemployment benefits from Rogue Manufacturing, and (3) 

finding plain error in the representation of Custom Rental by 

its president.

STANDARD OF REVIEW

[1-3] A judgment or final order rendered by a district court 

in a judicial review pursuant to the Administrative Procedure 

Act (APA) may be reversed, vacated, or modified by an appellate court for errors appearing on the record. Underwood v. 

Nebraska State Patrol, 287 Neb. 204, 842 N.W.2d 57 (2014). 

When reviewing an order of a district court under the APA 

for errors appearing on the record, the inquiry is whether 
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the decision conforms to the law, is supported by competent 

evidence, and is neither arbitrary, capricious, nor unreasonable. Id. Whether a decision conforms to law is by definition 

a question of law, in connection with which an appellate court 

reaches a conclusion independent of that reached by the lower 

court. Id.

ANALYSIS

Jurisdiction.

[4-6] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. Boyd v. Cook, 298 Neb. 

819, 906 N.W.2d 31 (2018). For an appellate court to acquire 

jurisdiction of an appeal, there must be a final order entered 

by the court from which the appeal is taken; conversely, an 

appellate court is without jurisdiction to entertain appeals from 

nonfinal orders. Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 

673 N.W.2d 558 (2004). If an order is interlocutory, immediate 

appeal from the order is disallowed so that courts may avoid 

piecemeal review, chaos in trial procedure, and a succession of 

appeals granted in the same case to secure advisory opinions 

to govern further actions of the trial court. Tilson v. Tilson, 299 

Neb. 64, 907 N.W.2d 31 (2018).

Barrios claims we do not have jurisdiction, because the district court’s order is not final insomuch as it remanded the matter for further proceedings. Neb. Rev. Stat. § 84-917(5)(b)(ii) 

(Reissue 2014) sets forth the procedure under the APA in 

situations in which the district court remands the matter to the 

agency for further proceedings. It states:

The agency shall affirm, modify, or reverse its findings 

and decision in the case by reason of the additional proceedings and shall file the decision following remand 

with the reviewing court. The agency shall serve a copy 

of the decision following remand upon all parties to the 

district court proceedings. The agency decision following 

remand shall become final unless a petition for further 
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review is filed with the reviewing court within thirty 

days after the decision following remand being filed with 

the district court. The party filing the petition for further review shall serve a copy of the petition for further 

review upon all parties to the district court proceeding 

in accordance with the rules of pleading in civil actions 

promulgated by the Supreme Court pursuant to section 

25-801.01 within thirty days after the petition for further 

review is filed. Within thirty days after service of the 

petition for further review or within such further time as 

the court for good cause shown may allow, the agency 

shall prepare and transmit to the court a certified copy 

of the official record of the additional proceedings had 

before the agency following remand.

§ 84-917(5)(b)(ii). The above procedure was added to the 

APA in 2006 when the Legislature passed 2006 Neb. Laws, 

L.B. 1115. As passed, L.B. 1115 incorporated 2006 Neb. 

Laws, L.B. 1136, the purpose of which was to eliminate the 

need for a new action being filed in the district court if a party 

sought review of an agency decision following additional 

proceedings on remand. See Judiciary Committee Hearing, 

L.B. 1136, 99th Leg., 2d Sess. 18 (Feb. 2, 2006). See, also, 

Concordia Teachers College v. Neb. Dept. of Labor, 252 

Neb. 504, 563 N.W.2d 345 (1997) (dismissing appeal under 

APA for lack of jurisdiction for failure to serve summons 

within 30 days of filing petition for review following decision 

on remand).

[7-9] Under the APA, the district court sits as an intermediate appellate court. § 84-917(2) and Neb. Rev. Stat. 

§ 84-918(1) (Reissue 2014). The Nebraska Supreme Court 

has held that when a district court, sitting as an intermediate 

appellate court, enters an order that affects a substantial right, 

that order is final for purposes of appeal if its judgment can be 

executed without any further action by the district court. Rohde 

v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 

618 (1994). Where the district court reverses a judgment in 
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favor of a party, and remands the matter for further proceedings, that party’s substantial right has been affected. Id.

In Rohde v. Farmers Alliance Mut. Ins. Co., supra, the 

county court directed a verdict in favor of the defendant. The 

plaintiffs appealed to the district court, which reversed the 

judgment and remanded the case to the county court for trial on 

the merits. Id. The defendant appealed to the Court of Appeals, 

which dismissed for lack of jurisdiction. Id. On a petition for 

further review, the Nebraska Supreme Court overruled prior 

precedent to the extent that it held an order of a district court 

reversing a final order of the trial court and remanding the case 

for a trial on the merits is never a final order. See id. The court 

explained that the determining factor was whether the district 

court retained the cause for further action; if it did not, the district court’s order remanding the case for further proceedings 

was a final order. See id.

In the present case, the district court reversed a decision 

that had been entered in favor of the Department, thereby 

affecting a substantial right of the Department. Pursuant to 

§ 84-917(5)(b)(i), the district court remanded the matter for 

further proceedings to address an issue that had not been raised 

in the agency proceeding. Section 84-917(5)(b)(ii) requires the 

agency to file its new decision with the district court, but unless 

a party files a petition for further review with the district court, 

the agency’s decision becomes final without any further action 

of the district court. Prior to the amendment of § 84-917(5) in 

2006, the Nebraska Supreme Court had held that remanding a 

case to an agency for further proceedings did not empower the 

district court to retain jurisdiction over the action. Concordia 

Teachers College v. Neb. Dept. of Labor, supra.

The Nebraska Supreme Court has not squarely addressed 

this issue since the enactment of § 84-917(5)(b)(ii), and an 

argument can be made that the additional provisions preclude a final judgment until such time as the new decision is 

filed with the district court. However, we are mindful that in 

Kerford Limestone Co. v. Nebraska Dept. of Rev., 287 Neb. 
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653, 657, 844 N.W.2d 276, 280 (2014), a case in the same procedural posture as the case before us, the Nebraska Supreme 

Court addressed the merits, recognizing that the appellant 

“timely appeals.” Accordingly, we address the Department’s 

assigned errors.

Equitable Estoppel.

The Department first argues that the district court erred 

in remanding the matter for a determination of whether the 

Department is estopped from seeking repayment of the benefits 

paid to Barrios to which he was not entitled. We conclude that 

because the elements of equitable estoppel are not present in 

the instant case, the district court erred in remanding the matter 

on that basis.

[10,11] Equitable estoppel is a bar which precludes a party 

from denying or asserting anything to the contrary of those 

matters established as the truth by his or her own deeds, acts, 

or representations. Omaha Police Union Local 101 v. City of 

Omaha, 292 Neb. 381, 872 N.W.2d 765 (2015). The doctrine 

applies where, as a result of conduct of a party upon which 

another person has in good faith relied to his or her detriment, the acting party is absolutely precluded, both at law and 

in equity, from asserting rights which might have otherwise 

existed. Id.

[12,13] The elements of equitable estoppel are, as to the 

party estopped: (1) conduct which amounts to a false representation or concealment of material facts, or at least which 

is calculated to convey the impression that the facts are 

otherwise than, and inconsistent with, those which the party 

subsequently attempts to assert; (2) the intention, or at least 

the expectation, that such conduct shall be acted upon by, or 

influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. Id. As to the 

other party, the elements are: (1) lack of knowledge and of the 

means of knowledge of the truth as to the facts in question; (2) 

reliance, in good faith, upon the conduct or statements of the 
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party to be estopped; and (3) action or inaction based thereon 

of such a character as to change the position or status of the 

party claiming the estoppel, to his or her injury, detriment, or 

prejudice. Id.

In the present case, Barrios argues that the doctrine of detrimental reliance applies because the Department paid unemployment benefits without a disqualification period when he 

had reported to its representative that he “only had worked 

for [Custom Rental] for three days.” But Barrios does not 

explain how he relied upon such action. He had already terminated his employment with Custom Rental when he called 

the Department, so he is not claiming that the statement of 

the Department’s representative induced him to quit his job. 

Barrios alleges in his amended petition that he was advised by 

the Department’s representative he would be eligible for benefits and that based upon the representation, he applied for, and 

received, benefits. But at the hearing before the tribunal, he 

testified that the representative said, “‘Oh, no problem. I congratulate you.’” We do not view that as a false representation 

upon which a person would reasonably rely to mean unemployment benefits were available without a disqualification period. 

Even Barrios’ statement in his motion to reconsider that he was 

“advised that [he] qualified for Unemployment Benefits” cannot be construed as a representation that he would not have a 

disqualification period.

Even assuming Barrios relied upon the representative’s 

statement as an inducement to apply for benefits, he suffered 

no harm in doing so. If he applied and the Department applied 

the 13-week disqualification period, he would receive nothing 

during those 13 weeks. If the Department did not apply the 

disqualification period, he would receive immediate unemployment benefits. He ultimately received immediate benefits 

to which the Department later determined he was not entitled. 

But because Barrios should never have received those benefits 

in the first place, allowing the Department to recoup the erroneously paid funds will cause no detriment to Barrios. He will 
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end up in the same position he would have been had benefits 

been properly delayed at the outset. And if he was entitled to 

benefits after the 13-week period (a question we are unable to 

determine based upon the record before us), and he had never 

applied for benefits, he would have ended up in a worse position. Thus, the doctrine of equitable estoppel is not applicable 

here. As a result, the district court erred in remanding the 

matter for a determination of whether the Department should 

be estopped from seeking repayment of the erroneously paid 

funds from Barrios.

Benefits From Rogue 

Manufacturing.

The Department also claims that the district court erred in 

remanding the matter for a determination of whether Barrios is 

eligible for benefits from Rogue Manufacturing. Specifically, 

it argues that the district court failed to properly construe Neb. 

Rev. Stat. § 48-626 (Reissue 2010) and § 48-628, leading to the 

erroneous conclusion that “an adjudication of the separation 

of Barrios from Rogue [Manufacturing] was required before 

a determination could be made whether he separated from 

employment with Custom Rental with good cause.” Brief for 

appellant at 29. We disagree with the Department’s interpretation of the district court’s order.

[14] The sole issue addressed by the Department and the 

appeal tribunal was whether Barrios terminated his employment with Custom Rental for good cause. In his amended 

petition to the district court, Barrios alleged that the appeal 

tribunal’s application of the disqualification period was erroneous in part because he was eligible for the benefits he received 

due to his employment with Rogue Manufacturing. Although 

this argument was raised for the first time on appeal to the 

district court, under the APA, the district court has the discretion to remand a case for resolution of issues that were not 

raised before the agency. See § 84-917. If the court determines 

that the interest of justice would be served by the resolution 
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of any other issue not raised before the agency, the court 

may remand the case to the agency for further proceedings. 

§ 84-917(5)(b)(i).

The district court’s order observes that the transcript and bill 

of exceptions before it do not indicate whether the Department 

assessed if Barrios was eligible for benefits from Rogue 

Manufacturing. It is undisputed that the Department is seeking reimbursement of benefits it claims were erroneously 

paid to Barrios based on its determination that he was subject 

to the 13-week disqualification period due to his voluntary 

termination from Custom Rental. However, if his eligibility for benefits was based upon his employment with Rogue 

Manufacturing, and his separation from that employer did 

not warrant disqualification, then any benefit received by 

Barrios should not have to be repaid. See Gilbert v. Hanlon, 

214 Neb. 676, 335 N.W.2d 548 (1983) (benefits attributable 

to separate employer are disqualified separately). Contrary to 

the Department’s interpretation, the district court’s remand for 

consideration of Rogue Manufacturing’s liability was not for 

the purpose of determining whether Barrios separated from 

employment with Custom Rental with good cause, but, rather, 

for the purpose of determining whether Barrios was required 

to repay the benefits he received.

The underlying, unresolved issue is whether the Department 

is entitled to a return of the benefits paid. We cannot find 

that the district court abused its discretion in remanding the 

matter for a determination of whether Barrios was entitled to 

the benefits he received as a result of his employment with 

Rogue Manufacturing.

We note that although the court’s order indicates that it 

was remanding the matter to the appeal tribunal for this determination, the matter must be remanded to the Department. 

It is the Department’s duty to assess whether a claimant is 

entitled to receive unemployment benefits for which he or she 

has applied, and under § 84-917(5)(b), the court may remand 

the case to the agency for further proceedings. Thus, we 
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modify the district court’s order to remand the matter to the 

Department, rather than the appeal tribunal.

Representation by Custom 

Rental’s President.

Finally, the Department asserts that the district court erred 

in finding plain error in the appeal tribunal allowing the representation of Custom Rental by its president. The district court 

concluded that unless the president of Custom Rental was an 

attorney, he may not represent the corporation during the proceedings before the appeal tribunal. We conclude that the court 

erred in this determination.

[15] Pursuant to the Nebraska Supreme Court rules:

Whether or not they constitute the practice of law, the 

following are not prohibited:

. . . .

(C) Nonlawyers appearing in a representative capacity 

before an administrative tribunal or agency, subject to 

the following:

. . . .

(2) A nonlawyer who is an employee, member, or 

officer of an entity or organization may represent such 

entity or organization before an administrative tribunal 

or agency of the State of Nebraska, or a political subdivision of the State of Nebraska, if all of the following 

conditions are met:

(a) The tribunal, agency, or political subdivision permits representation of parties by nonlawyers;

(b) The nonlawyer employee, member, or officer is 

specifically authorized by the entity or organization to 

appear before the tribunal, agency, or political subdivision 

on its behalf;

(c) Such representation is not the primary duty of the 

nonlawyer employee, member, or officer to the entity or 

organization, but is secondary to other duties relating to 

the management or operation of the entity or organization;
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(d) The nonlawyer employee, member, or officer does 

not receive separate or additional compensation (other 

than reimbursement for costs) for such representation;

(e) The representation does not involve a claim that the 

tribunal, agency, or political subdivision’s action or the 

action of another person is illegal as a matter of law or 

unconstitutional; and

(f) The Nebraska Evidence Rules as applicable in 

the district courts do not apply to the administrative 

proceeding.

Neb. Ct. R. § 3-1004. Thus, under the Nebraska Supreme 

Court rules, a corporate officer who is not a lawyer is not prohibited from representing the corporation at an agency hearing 

under certain conditions. The record before us lacks evidence 

as to several of the conditions set forth in § 3-1004(C)(2), 

however. Thus, this court and the district court are unable 

to determine whether the representation of Custom Rental 

by its president constituted the unauthorized practice of law. 

Accordingly, the district court erred in finding that allowing 

Custom Rental’s president to represent the corporation at the 

agency hearing was plain error.

CONCLUSION

We conclude that the district court erred in remanding the 

matter for a determination of whether the doctrine of equitable 

estoppel applies to the Department’s request for reimbursement of unemployment benefits paid to Barrios. In addition, 

the court’s finding of plain error with respect to allowing 

Custom Rental’s president to represent the corporation before 

the appeal tribunal was erroneous. The district court’s order 

is therefore reversed as to those issues. We affirm the court’s 

decision to remand the matter for a determination of whether 

Barrios is eligible to receive unemployment benefits from 

Rogue Manufacturing, but modify the order to remand the matter to the Department, rather than the appeal tribunal.

 Affirmed in part as modified,

and in part reversed.