Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 711

Cite as 20 Neb. App. 711

City of Omaha, Nebraska, et al., appellants, 

v. C.A. Howell, Inc., doing business as

Howell’s BP, and the Nebraska Liquor

Control Commission, appellees.

___ N.W.2d ___

Filed April 23, 2013. No. A-11-1116.

1. Administrative Law: Liquor Licenses: Appeal and Error. Appeals from orders 

or decisions of the Nebraska Liquor Control Commission are taken in accordance 

with the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 

(Reissue 2008 & Cum. Supp. 2012).

2. Administrative Law: Final Orders: Appeal and Error. Proceedings for review 

of a final decision of an administrative agency shall be to the district court, 

which shall conduct the review without a jury de novo on the record of 

the agency.

3. ____: ____: ____. Under the Administrative Procedure Act, an appellate court 

may reverse, vacate, or modify a district court’s judgment or final order for errors 

appearing on the record.

4. Administrative Law: Judgments: Appeal and Error. 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.

5. Administrative Law: Statutes: Appeal and Error. To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law 

are presented, in connection with which an appellate court has an obligation 

to reach an independent conclusion irrespective of the decision made by the 

court below.

6. Jurisdiction: Appeal and Error. A jurisdictional question which does not 

involve a factual dispute is determined by an appellate court as a matter of law.

7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power 

to hear a case.

8. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any 

time by any party or by the court sua sponte.

9. Jurisdiction: Appeal and Error. If the court from which an appeal was taken 

lacked jurisdiction, the appellate court acquires no jurisdiction.

10. Administrative Law: Jurisdiction: Appeal and Error. Where a district court 

has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction only if the review is sought in the mode and 

manner and within the time provided by statute.

11. Administrative Law: Words and Phrases. An administrative agency is a neutral 

factfinding body when it is neither an adversary nor an advocate of a party.

12. Administrative Law: Parties. When an administrative agency acts as the primary civil enforcement agency, it is more than a neutral fact finder and is a 

required party.
Decisions of the Nebraska Court of Appeals

712 20 NEBRASKA APPELLATE REPORTS

13. Administrative Law: Parties: Appeal and Error. An agency which is charged 

with the responsibility of protecting the public interest, as distinguished from 

determining the rights of two or more individuals in a dispute before such agency, 

is a necessary or indispensable party in a judicial review of an order of an administrative agency.

14. Administrative Law: Liquor Licenses. Within the Nebraska Liquor Control 

Commission’s power is the authority to issue licenses subject to certain restrictions or conditions as reasonably necessary to protect the health, safety, and welfare of the people of the State of Nebraska and to promote and foster temperance 

in the consumption of alcohol.

15. Administrative Law: Jurisdiction: Appeal and Error. The filing of the petition 

and the service of summons are the two actions that are necessary to establish 

jurisdiction pursuant to the Administrative Procedure Act.

16. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of the claim, issue, or 

question, an appellate court also lacks the power to determine the merits of the 

claim, issue, or question presented to the lower court.

17. Jurisdiction: Dismissal and Nonsuit: Motions to Vacate: Appeal and Error.

When an appeal is dismissed because the lower court lacked jurisdiction to enter 

the order appealed from, an appellate court may nevertheless enter an order 

vacating the order issued by the lower court without jurisdiction.

Appeal from the District Court for Lancaster County: Karen

B. Flowers, Judge. Vacated and dismissed.

Thomas O. Mumgaard, Deputy Omaha City Attorney, for 

appellants.

Michael L. Lazer and Kevin J. McCoy, of Smith, Gardner, 

Slusky, Lazer, Pohren & Rogers, L.L.P., for appellee C.A. 

Howell, Inc.

Jon Bruning, Attorney General, and Milissa Johnson-Wiles 

for appellee Nebraska Liquor Control Commission.

Inbody, Chief Judge, and Sievers and Riedmann, Judges.

Inbody, Chief Judge.

INTRODUCTION

The City of Omaha, Nebraska, and three citizen protestors, Sharon Olson, James Rawlings, and Tracy King (collectively the City), appeal the order of the Lancaster County 

District Court affirming the decision of the Nebraska Liquor 

Control Commission (the Commission) granting a retail 
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 713

Cite as 20 Neb. App. 711

class D liquor license to C.A. Howell, Inc. (Howell), doing 

business as Howell’s BP.

STATEMENT OF FACTS

On June 1, 2010, Howell submitted an application with the 

Commission for a liquor license for Howell’s BP, a gas station, located on North 30th Street in Omaha. The application 

indicated that Howell sought the issuance of a retail class D 

license for the sale of beer, wine, and distilled spirits, off sale 

only. A petition was filed with the Commission indicating that 

several residents protested the issuance of a liquor license to 

Howell’s BP. On June 22, the Omaha City Council reviewed 

and considered Howell’s application for a license and recommended that the application be denied. The city council concluded that Howell was not able to properly provide for the safe 

sale of liquor as proposed, and in consideration of the petitioning citizens’ protests, the existence of other licenses in the area, 

the impact on law enforcement, and the public interest, the 

council recommended that the application be denied.

On August 27, 2010, a hearing was held before the 

Commission on Howell’s application for a retail class D 

liquor license. At the hearing, Olson, a citizen protestor and 

member of the “Miller Park-Minne Lusa Neighborhood citizen’s patrol,” testified that there were other liquor stores 

in the vicinity of Howell’s BP. Olson testified that the area 

was not in need of another liquor store and that she was 

concerned because “young people” frequently “hang[] out” 

at Howell’s BP. Olson requested that the Commission deny 

Howell’s application because of the increase in crime and violence, in addition to police calls, that would follow.

Craig Howell, the owner of Howell’s BP, testified that he 

had operated the Howell’s BP station on North 30th Street for 

7 or 8 years. He testified that in that time, he had never sold 

alcohol at the store. During those years, customers requested 

almost daily that Howell engage in the sale of alcohol at that 

location. He testified that if the license is granted, he plans 

on remodeling the location to add more store area by taking 

away two of the three automobile repair bays. He testified that 

at previous locations, the businesses held liquor licenses and 
Decisions of the Nebraska Court of Appeals

714 20 NEBRASKA APPELLATE REPORTS

did not have any violations during the time he operated them. 

Howell submitted a large document which contained numerous 

pages of signatures by customers of the store in support of the 

issuance of a liquor license.

In response to an exhibit submitted by the City, which 

indicated that in December 2009, a store clerk had been 

shot and killed by an individual with whom the clerk had 

“exchange[d] . . . words,” Craig Howell testified that an 

employee of his was the victim of a homicide. He explained 

that prior to the shooting, the employee had been working for 

Howell for only 1 week; that there was no indication that the 

shooting was connected with an attempted robbery; and that 

the shooter had never been apprehended. Craig Howell testified that nothing was taken from the store and that that was 

the only incidence of violence which had occurred inside of 

the store.

Craig Howell also testified in response to two Omaha Police 

Department crime analysis unit reports for the intersection 

where Howell’s BP is located, for June through December 

2009 and January through August 2010. The reports are generated from the police department’s computers via the 911 

emergency dispatch service’s communication center. For each 

emergency call, the report gives the type of call and the date, 

time, and disposition. Many of the calls took place between 

midnight and 3 a.m. Craig Howell testified that while he currently operates Howell’s BP on a 24-hour basis, he anticipates 

that he would close the business in the early morning hours if 

the license were granted. He testified that he has the store open 

for 24 hours a day only because the income he generates now 

requires those business hours and that he hopes alcohol sales 

will increase the income so that he is not required to stay open 

24 hours a day.

Craig Howell explained that in accordance with the police 

department, he was instructed to contact the police if there 

were any incidents at or near his property during the early 

morning hours, and that he instructed his employees to do the 

same. He testified that he and his employees work as night 

watchmen, since the business is open on a 24-hour basis. He 

testified that he would also be hiring a security guard if the 
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 715

Cite as 20 Neb. App. 711

license were granted. He also testified that all of the emergency calls indicated on the crime analysis unit reports had 

nothing to do with the sale of alcohol because the store did not 

have a liquor license.

Craig Howell testified that a convenience store much like 

Howell’s BP had previously applied for a liquor license, 

was denied the license, and thereafter closed its doors to all 

business. He recognized that there were two large grocery 

stores in the area which held class C liquor licenses, but 

explained that he was trying to obtain a different market than 

those stores.

On September 1, 2010, the Commission entered an order 

finding that Howell was fit, willing, and able to properly provide the service described in the application; that Howell was 

able to conform to the rules and regulations of the Nebraska 

Liquor Control Act; that Howell demonstrated the proper management and control of the premises to ensure conformation 

to the Nebraska Liquor Control Act; and that the issuance 

of the license was or would be required by present or future 

public convenience and necessity. The Commission approved 

the application by a vote of 2 to 1 and issued Howell a retail 

class D liquor license.

On September 27, 2010, the City filed a petition for judicial 

review of the Commission’s decision granting Howell a liquor 

license. The petition indicated that the Commission was not 

made a party of record because it was a neutral factfinding 

body and alleged that the Commission did not comply with the 

Nebraska Liquor Control Act in its decision to grant Howell a 

liquor license.

On October 18, 2010, the City filed an amended petition 

which included the Commission as a named party and the 

same allegations as the original petition, without the language 

regarding the Commission’s being a neutral party. On October 

20, the Commission acknowledged receipt of a copy of the 

amended petition naming it as a party and filed a waiver of 

service by summons.

On November 4, 2010, Howell filed a motion to dismiss 

with prejudice, alleging that the Commission was a necessary party and was not timely made a party until after 30 days 
Decisions of the Nebraska Court of Appeals

716 20 NEBRASKA APPELLATE REPORTS

from its order, contrary to the requirements of Neb. Rev. 

Stat. § 84-917 (Cum. Supp. 2012). On that same day, the 

Commission filed an answer generally denying all of the allegations in the amended petition. Judges’ notes indicate that 

the district court denied Howell’s motion to dismiss in March 

2011. On June 28, 2011, Howell filed an answer and renewed 

his motion to dismiss which had been previously denied.

On November 30, 2011, the district court filed an order 

affirming the Commission’s issuance of the liquor license. The 

district court found that the City did not dispute Howell was 

fit, willing, and able to provide for the sale of alcohol and 

would conform to the rules and regulations of the Nebraska 

Liquor Control Act, but that the City sought a reversal of the 

license because the Commission reached its decision on an 

improper basis and because the evidence failed to support that 

the issuance of the license was required by present or future 

public convenience and necessity.

The district court found that a remark made during the 

hearing by an individual commissioner, which the City argued 

constituted findings of fact and the basis for the improper 

basis argument, did not modify the actual written findings 

of fact and that the City’s argument was without merit. The 

district court further found there was no issue regarding zoning restrictions, sanitary conditions, traffic, or the existing 

populations or projected growth thereof. The court found that 

the City’s allegations of police calls to the Howell’s BP location in 2009 or 2010 provided the court with no evidence to 

support that existing law enforcement is inadequate or would 

become so, or that the liquor license would attract “people 

who want to cause trouble.” The district court also found that 

although there were two class C licenses in the area, there was 

no corroborative documentation that Howell’s license resulted 

in an undue concentration of licenses in one area. The district 

court concluded that Howell met its burden to show that the 

issuance of a license is required by present or future public 

convenience, in accord with the daily requests by customers 

for the sale of alcohol. The district court affirmed the issuance 

of the license to Howell, and it is from this order that the City 

has appealed.
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 717

Cite as 20 Neb. App. 711

ASSIGNMENTS OF ERROR

The City assigns that the district court erred by affirming 

the Commission’s grant of a liquor license, because the license 

was granted under an unlawful and unauthorized purpose. The 

City also assigns that the district court erred in concluding that 

Howell met its burden of showing the statutory standards necessary to obtain a liquor license.

STANDARD OF REVIEW

[1,2] Appeals from orders or decisions of the Commission 

are taken in accordance with the Administrative Procedure Act 

(APA), Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 & 

Cum. Supp. 2012). See Lariat Club v. Nebraska Liquor Control 

Comm., 267 Neb. 179, 673 N.W.2d 29 (2004). Proceedings for 

review of a final decision of an administrative agency shall 

be to the district court, which shall conduct the review without a jury de novo on the record of the agency. DLH, Inc. v. 

Nebraska Liquor Control Comm., 266 Neb. 361, 665 N.W.2d 

629 (2003).

[3,4] Under the APA, an appellate court may reverse, vacate, 

or modify a district court’s judgment or final order for errors 

appearing on the record. See id. When reviewing an order of a 

district court under the APA 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. Id.

[5] To the extent that the meaning and interpretation of 

statutes and regulations are involved, questions of law are 

presented, in connection with which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below. Lariat Club v. Nebraska 

Liquor Control Comm., supra.

[6] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law. O’Hara v. Department of Motor Vehicles, 14 Neb. App. 

709, 713 N.W.2d 508 (2006).

ANALYSIS

During the pendency of this appeal, this court ordered the 

parties to address the issue of jurisdiction pursuant to the 
Decisions of the Nebraska Court of Appeals

718 20 NEBRASKA APPELLATE REPORTS

provisions of the APA found at § 84-917. Appeals from orders 

or decisions of the Commission must be taken in accordance 

with the APA. Neb. Rev. Stat. § 53-1,116 (Reissue 2010) 

(appeal from any “order or decision of the [C]ommission granting, denying, suspending, [or] canceling” license or permit for 

sale of alcoholic liquor in accordance with APA). See DLH, 

Inc. v. Nebraska Liquor Control Comm., supra (appeals from 

orders or decisions of Commission are taken in accordance 

with APA).

Section 84-917, which provides for the right to appeal the 

final decision in a contested case pursuant to the APA, has 

been amended several times, including in 2009. However, the 

substance of the particular subsection at issue in this case, 

§ 84-917(2)(a)(i), remains unchanged, and it provides, in pertinent part:

Proceedings for review shall be instituted by filing a 

petition in the district court of the county where the 

action is taken within thirty days after the service of 

the final decision by the agency. All parties of record 

shall be made parties to the proceedings for review. If 

an agency’s only role in a contested case is to act as a 

neutral factfinding body, the agency shall not be a party 

of record. In all other cases, the agency shall be a party 

of record.

The City contends that the Commission was properly 

included as a party in the amended petition and that the district court and this court properly have jurisdiction over this 

case. Conversely, Howell alleges that the City failed to name 

the Commission as a necessary party in the original petition 

and that the amended petition was not filed within the allotted time pursuant to § 84-917. The Commission, in its brief, 

adopts Howell’s arguments, but also contends that it was a 

necessary party and that the City’s failure to include it in the 

original petition deprived the district court of subject matter 

jurisdiction to hear the appeal. The determination regarding the 

Commission’s role as a party of record has not been addressed 

prior to this appeal.

[7-9] Subject matter jurisdiction is a court’s power to hear 

a case. State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 719

Cite as 20 Neb. App. 711

Neb. 1000, 620 N.W.2d 763 (2001). Lack of subject matter 

jurisdiction may be raised at any time by any party or by the 

court sua sponte. Betterman v. Department of Motor Vehicles, 

273 Neb. 178, 728 N.W.2d 570 (2007). If the court from which 

an appeal was taken lacked jurisdiction, the appellate court 

acquires no jurisdiction. Anderson v. Houston, 274 Neb. 916, 

744 N.W.2d 410 (2008).

[10] Where a district court has statutory authority to review 

an action of an administrative agency, the district court may 

acquire jurisdiction only if the review is sought in the mode 

and manner and within the time provided by statute. 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). In the 

case before us, we must first determine whether the district 

court lacked subject matter jurisdiction by determining whether 

the Commission was a neutral factfinding agency or a party of 

record pursuant to § 84-917(2)(a)(i).

What Is Commission’s Role?

The Commission argues that Neb. Rev. Stat. § 53-1,115 

(Reissue 2010) answers the question of whether it is a party 

of record in the instant case. Section 53-1,115 provides, in 

pertinent part: “(4) For purposes of this section, party of record 

means: (a) In the case of an administrative proceeding before 

the [C]ommission on the application for a retail, craft brewery, 

or microdistillery license: . . . (iv) The [C]ommission.”

Section 84-917(2)(a)(i) provides that the Commission, as a 

party of record, shall be made a party to the proceedings for 

review, but that if the agency’s only role in the contested case 

was to act as a neutral factfinding body, the agency “shall not 

be a party of record.” Thus, we must determine whether the 

Commission was a “neutral factfinding body.” See id.

[11-13] An administrative agency is a neutral factfinding 

body when it is neither an adversary nor an advocate of a 

party. Metropolitan Util. Dist. v. Aquila, Inc., 271 Neb. 454, 

712 N.W.2d 280 (2006); In re Application of Metropolitan 

Util. Dist., 270 Neb. 494, 704 N.W.2d 237 (2005). However, 

when an administrative agency acts as the primary civil 
Decisions of the Nebraska Court of Appeals

720 20 NEBRASKA APPELLATE REPORTS

enforcement agency, it is more than a neutral fact finder and 

is a required party. Metropolitan Util. Dist. v. Aquila, Inc., 

supra; In re Application of Metropolitan Util. Dist., supra.

Further, an agency which is charged with the responsibility of 

protecting the public interest, as distinguished from determining the rights of two or more individuals in a dispute before 

such agency, is a necessary or indispensable party in a judicial 

review of an order of an administrative agency. Tlamka v. 

Parry, 16 Neb. App. 793, 751 N.W.2d 664 (2008). See, also, 

Beatrice Manor v. Department of Health, 219 Neb. 141, 362 

N.W.2d 45 (1985); Leach v. Dept. of Motor Vehicles, 213 Neb. 

103, 327 N.W.2d 615 (1982).

Both the Nebraska Supreme Court and this court have previously analyzed the roles of various agencies as either neutral 

fact finders or required parties. See, Becker v. Nebraska Acct. 

& Disclosure Comm., 249 Neb. 28, 541 N.W.2d 36 (1995) 

(Nebraska Accountability and Disclosure Commission was 

required to be party to proceedings for judicial review of settlement agreement between itself and University of Nebraska 

Board of Regents); Tlamka v. Parry, supra (inmate’s failure to 

timely include Nebraska Department of Correctional Services 

as party in initial petition deprived trial court of jurisdiction 

over his petition for review). The line between an agency’s 

roles is by no means clear, as evidenced in two separate cases 

through which the Nebraska Public Service Commission was 

found in one instance not to be a neutral factfinding body 

and in a second instance to be acting as a neutral factfinding body. See, Metropolitan Util. Dist. v. Aquila, Inc., supra

(Nebraska Public Service Commission was acting as factfinding body and not as certifying agency, primary civil enforcement agency, or adversarial party or enforcing previous order); 

In re Application of Metropolitan Util. Dist., supra (under 

authority given to Nebraska Public Service Commission, it was 

not acting as neutral factfinding body and was proper party 

to action).

In the case of In re Application of Metropolitan Util. Dist., 

270 Neb. 494, 704 N.W.2d 237 (2005), the Metropolitan 

Utilities District of Omaha (MUD) appealed to the district court from a decision of the Nebraska Public Service 
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 721

Cite as 20 Neb. App. 711

Commission (PSC) dismissing its application for certification as a competitive natural gas provider. The district court 

“‘affirmed,’” finding that the PSC lacked jurisdiction. Id. at 

495, 704 N.W.2d at 240. The PSC appealed to the Nebraska 

Supreme Court, contending that it had jurisdiction over MUD. 

MUD argued that the PSC did not have standing to appeal 

and was not a proper party to the action. Id. The statute in 

issue at that time, Neb. Rev. Stat. § 66-1804(1) (Reissue 

2003), provided:

The [PSC] shall have full power, authority, and jurisdiction to regulate natural gas public utilities and may do 

all things necessary and convenient for the exercise of 

such power, authority, and jurisdiction. . . . [S]uch power, 

authority, and jurisdiction shall extend to, but not be limited to, all matters encompassed within the State Natural 

Gas Regulation Act and sections 57-1301 to 57-1307.

The Nebraska Supreme Court found that the statutes setting 

forth the PSC’s powers and authority concerning natural gas 

utilities gave it powers to act as more than a neutral factfinding 

body and concluded that the PSC was a required party. In re 

Application of Metropolitan Util. Dist., supra.

In the case of Metropolitan Util. Dist. v. Aquila, Inc., 271 

Neb. 454, 712 N.W.2d 280 (2006), MUD appealed the decision 

of the PSC ordering MUD to cease and desist the construction of a natural gas main extension as a result of a formal 

complaint filed by another utility company asserting that the 

extension was not in the public interest. The PSC was made 

a party to the appeal. Id. The Nebraska Supreme Court held 

that the PSC had acted as a neutral factfinding body and, as 

such, was not a necessary party to the appeal. In making that 

determination, the court found that pursuant to § 66-1804(1), 

the PSC’s jurisdiction extended to Neb. Rev. Stat. §§ 57-1301 

to 57-1307 (Reissue 2004), but that those statutes limited the 

PSC’s role by specifically including a provision in § 57-1306 

stating that the PSC “shall have no jurisdiction over a metropolitan utilities district or natural gas utility beyond the determination of disputes brought before it under sections 57-1301 

to 57-1307.” In concluding that the PSC was not a necessary 

party to the action, the court found that the PSC was not acting 
Decisions of the Nebraska Court of Appeals

722 20 NEBRASKA APPELLATE REPORTS

as a certifying agency, as a primary civil enforcement agency, 

or in the role of an adversarial party or enforcing a previous 

order, but was acting as a factfinding body to determine the 

validity of the cease-and-desist order. Metropolitan Util. Dist. 

v. Aquila, Inc., supra.

[14] In this case, the Commission is empowered to promulgate rules and regulations to carry out the provisions of 

the Nebraska Liquor Control Act, Neb. Rev. Stat. §§ 53-101 

to 53-1,122 (Reissue 2010). See, JCB Enters. v. Nebraska 

Liq. Cont. Comm., 275 Neb. 797, 749 N.W.2d 873 (2008); 

Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 

179, 673 N.W.2d 29 (2004). Section 53-116 sets forth that 

the Commission has exclusive vested “power to regulate all 

phases of the control of the manufacture, distribution, sale, 

and traffic of alcoholic liquor.” Section 53-117 also provides, 

in part, that the Commission has the power to receive, issue, 

suspend, cancel, and revoke liquor licenses; promulgate rules 

and regulations; govern the traffic of alcoholic liquor and 

“enforce strictly” the Nebraska Liquor Control Act; inspect 

premises where liquor is located; hear and determine appeals; 

conduct audits; and investigate the administration of laws in 

relation to alcoholic liquor. This court has also concluded 

that within the Commission’s power is the authority to issue 

licenses subject to certain restrictions or conditions as reasonably necessary to protect the health, safety, and welfare 

of the people of the State of Nebraska and to promote and 

foster temperance in the consumption of alcohol. See F & T, 

Inc. v. Nebraska Liquor Control Comm., 7 Neb. App. 973, 

587 N.W.2d 700 (1998). Clearly, under the statutory authority 

given to the Commission, it has a broad range of powers and 

plays a significant role in the administration of the Nebraska 

Liquor Control Act.

Howell’s application for a liquor license was submitted 

to the Commission and forwarded to the city council for 

review. The city council requested a denial of the license. 

The Commission, under the broad authority given to it pursuant to § 53-117, decided against the recommendation and 

issued Howell a liquor license, which made the Commission 

an adversarial party. Furthermore, the Commission is also 
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 723

Cite as 20 Neb. App. 711

charged with the responsibility of protecting the public interest through its regulation of all phases of alcoholic liquor 

and, as such, is not merely a neutral factfinding body. See, 

Beatrice Manor v. Department of Health, 219 Neb. 141, 362 

N.W.2d 45 (1985); Leach v. Dept. of Motor Vehicles, 213 Neb. 

103, 327 N.W.2d 615 (1982); Tlamka v. Parry, 16 Neb. App. 

793, 751 N.W.2d 664 (2008). Therefore, in this case, pursuant 

to § 84-917(2)(a)(i), the Commission was required as a party 

of record and should have been included in the City’s original petition.

Were Statutory Requirements

for Jurisdiction Met?

Having determined that the Commission was required as a 

party of record and should have been included in the City’s 

original petition, we must now determine whether the statutory 

requirements for jurisdiction were met.

[15] The filing of the petition and the service of summons 

are the two actions that are necessary to establish jurisdiction 

pursuant to the APA. Essman v. Nebraska Law Enforcement 

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

v. Parry, supra. However, Howell claims that the Commission 

was not made a party to the proceedings within the allotted 

time set forth in § 84-917(2)(a)(i), which provides, in part:

Proceedings for review shall be instituted by filing a petition in the district court of the county where the action 

is taken within thirty days after the service of the final 

decision by the agency. All parties of record shall be 

made parties to the proceedings for review. If an agency’s 

only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. 

In all other cases, the agency shall be a party of record. 

Summons shall be served within thirty days of the filing 

of the petition in the manner provided for service of summons in section 25-510.02.

Neb. Rev. Stat. § 25-510.02(1) (Reissue 2008) provides that 

summons be left at the office of the Attorney General “with the 

Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail 
Decisions of the Nebraska Court of Appeals

724 20 NEBRASKA APPELLATE REPORTS

service addressed to the office of the Attorney General.” See, 

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

Neb. 504, 563 N.W.2d 345 (1997) (when § 25-510.02 applies, 

summons must be served on Attorney General in order to institute judicial review under APA).

Since the City failed to include the Commission as a party 

of record, the requirements of § 84-917(2)(a)(i) were not met. 

However, the City argues that any jurisdictional defect was 

cured with the filing of the amended petition. We find that 

the City’s reliance upon that argument is flawed. If we were 

to accept that argument, it would essentially alleviate the 

statutory requirement of timeliness in § 84-917(2)(a)(i), which 

requires that the necessary parties to an APA proceeding be 

included in a timely petition. See Tlamka v. Parry, supra. The 

statutory timeliness in § 84-917(2)(a)(i) is that the petition be 

filed with the district court “within thirty days after the service 

of the final decision by the agency.”

Here, the Commission made its determination on August 27, 

2010, and its order on September 1. The City filed its original 

petition on September 27, and did not include the Commission 

as a party of record. On October 18, the City filed an amended 

petition, including the Commission as a party of record and 

including the Attorney General’s office on the certificate of 

service. On October 19, the Commission, via the Attorney 

General’s office, filed a waiver of service by summons. The 

record contains only one summons, filed on October 10 with 

regard to the original complaint, which was to be served on 

Howell only.

The Commission was a necessary party and was not 

timely included as such in the original petition. Therefore, 

the City’s petition did not meet the statutory requirements of 

§ 84-917(2)(a)(i) and the district court lacked jurisdiction, and 

that in turn deprives this court of jurisdiction.

CONCLUSION

[16,17] The City failed to seek district court review in the 

mode and manner and within the time provided by the statute. 

By failing to include the Commission as a party in the initial 

petition, the City failed to timely petition the district court for 
Decisions of the Nebraska Court of Appeals

CITY OF OMAHA v. C.A. HOWELL, INC. 725

Cite as 20 Neb. App. 711

review as to a necessary party. The district court lacked subject 

matter jurisdiction of the APA proceeding. When a lower court 

lacks the authority to exercise its subject matter jurisdiction 

to adjudicate the merits of the claim, issue, or question, an 

appellate court also lacks the power to determine the merits 

of the claim, issue, or question presented to the lower court. 

McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 

748 N.W.2d 66 (2008). However, when an appeal is dismissed 

because the lower court lacked jurisdiction to enter the order 

appealed from, an appellate court may nevertheless enter an 

order vacating the order issued by the lower court without 

jurisdiction. Id. Therefore, the judgment of the district court is 

vacated and this appeal is dismissed.

 Vacated and dismissed.