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CANDYLAND, LLC v. NEBRASKA LIQUOR CONTROL COMM.

Cite as 306 Neb. 169

Candyland, LLC, a Nebraska limited liability 

company, doing business as “Kandi’s,” appellant, 

v. Nebraska Liquor Control Commission, 

an agency of the State of Nebraska, 

et al., appellees,

___ N.W.2d ___

Filed June 19, 2020. No. S-19-535.

1. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law which requires an appellate court to reach its conclusions independent from a trial court.

2. Administrative Law: Liquor Licenses: Parties: Words and Phrases: 

Appeal and Error. Under the Nebraska Liquor Control Act, the definition of “party of record” in Neb. Rev. Stat. § 53-1,115(4) (Cum. 

Supp. 2018) controls for purposes of the Administrative Procedure 

Act’s requirement that all parties of record shall be made parties to 

the proceedings for review in a review of the Nebraska Liquor Control 

Commission’s proceedings.

3. Administrative Law: Jurisdiction: Appeal and Error. For a district 

court to acquire jurisdiction to review a final decision of an administrative agency under the Administrative Procedure Act, the appellant must 

file the petition and serve summons.

4. Administrative Law: Service of Process: Time. Service on nongovernmental entities under Neb. Rev. Stat. § 84-917(2)(a)(i) (Reissue 2014) is 

required within 30 days of the filing of the petition.

Appeal from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Appeal dismissed.

Kyle J. McGinn and William F. McGinn, of McGinn, 

Springer & Noethe, P.L.C., for appellant.

Nebraska Supreme Court Online Library

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

06/26/2020 08:07 AM CDT
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Douglas J. Peterson, Attorney General, Milissa JohnsonWiles, and James Smith, Solicitor General, for appellees.

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

and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

Candyland, LLC, applied to the Nebraska Liquor Control 

Commission (Commission) for a retail Class C liquor license. 

After the Omaha City Council recommended denial and hundreds of “Protestants, Citizen Objectors, and Interested Parties” 

appeared in person or by writing before the Commission, 

the Commission denied Candyland’s application. Candyland 

attempted to appeal the order of the Commission to the district court for Lancaster County under the Administrative 

Procedure Act (APA). Candyland did not believe that the citizen objectors were necessary parties and did not serve summons on the citizen objectors. Subsequently, the district court 

found that Candyland had not served “[a]ll parties of record” 

as required by Neb. Rev. Stat. § 84-917(2)(a)(i) (Reissue 

2014) of the APA and dismissed the petition for review for 

lack of subject matter jurisdiction. Candyland filed a motion 

for a new trial, which was denied. Candyland appeals the 

district court’s orders in which it dismissed the petition and 

denied the motion for new trial. We conclude the district 

court did not err. The district court lacked subject matter 

jurisdiction under the APA, and likewise, we lack jurisdiction. 

Accordingly, we dismiss this appeal.

STATEMENT OF FACTS

On June 18, 2018, Candyland applied to the Commission for 

a retail Class C liquor license for a business on Blondo Street 

in Omaha, Douglas County, Nebraska. In July, the Omaha 

City Council conducted a hearing on Candyland’s application 

and approved a resolution that recommended it be denied. 

The case proceeded to the Commission, which held a hearing 
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on the application on October 10. Hundreds of “Protestants, 

Citizen Objectors, and Interested Parties” appeared in person 

or by writing for the Commission hearing. On October 29, the 

Commission denied Candyland’s application.

On November 15, 2018, pursuant to the APA, Candyland 

filed a petition on appeal in the district court for Lancaster 

County. The petition named as respondents the Commission, 

the City of Omaha, and the hundreds of “Protestants, Citizen 

Objectors, and Interested Parties.” On the same day, Candyland 

filed a “Motion for Service by Publication on Respondent 

Protestants and Citizen Objectors.” Candyland served summons on the Commission and the City of Omaha.

On December 14, 2018, the district court held a hearing on 

Candyland’s motion for service by publication. The district 

court overruled the motion, evidently indicating that citizen 

objectors were not necessary parties to the case.

On May 3, 2019, the district court dismissed Candyland’s 

petition for lack of subject matter jurisdiction. It found that 

Candyland had failed to obtain service of summons on the 

citizen objectors, without which there could be no jurisdiction. 

The court rejected Candyland’s argument that the volume of 

citizen objectors would have made individual service onerous. 

The court noted that it was undisputed that none of the individuals had been served but acknowledged in a footnote that 

it had previously erred when it had observed that the citizen 

objectors were not necessary parties.

Candyland appeals.

ASSIGNMENTS OF ERROR

In its appeal from the district court, Candyland assigns, 

summarized and restated, that the district court erred when 

it (1) denied Candyland’s motion for service by publication and dismissed its petition for failure to obtain service; 

(2) concluded that citizen objectors were parties of record 

and necessary to vest subject matter jurisdiction; and (3) 

required Candyland to serve citizen objectors, thereby denying 
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Candyland access to courts, in violation of Neb. Const. art. I, 

§ 13. For purposes of our analysis, we consider Candyland’s 

assignments of error in reverse order.

STANDARDS OF REVIEW

[1] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires an 

appellate court to reach its conclusions independent from a trial 

court. Retroactive, Inc. v. Nebraska Liquor Control Comm., 

298 Neb. 936, 906 N.W.2d 328 (2018).

ANALYSIS

In this case, the district court determined that it lacked 

subject matter jurisdiction because Candyland had not served 

citizen objectors. The district court dismissed the petition. 

As explained below, we agree with the district court’s ruling. 

Where the district court lacked subject matter jurisdiction, we 

likewise lack jurisdiction and dismiss Candyland’s appeal. See 

In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

Candyland Did Not Preserve Its Constitutional 

Challenge to § 25-508.01.

In the September 19, 2019, order by which this case was 

moved to this court’s docket, we noted that the constitutional 

issue raised by Candyland’s third assignment of error, regarding Neb. Rev. Stat. § 25-508.01 (Reissue 2016), had not been 

preserved. Accordingly, as we previously concluded, we do not 

consider Candyland’s constitutional challenge.

Citizen Objectors Are Parties of Record 

Who Should Be Served.

[2] Candyland contends that citizen objectors were not 

parties necessary to confer jurisdiction on the district court. 

We reject this argument. “Parties of record” who must be 

served under the APA is defined solely based on statute. See, 

§ 84-917(2)(a)(i); Retroactive, Inc. v. Nebraska Liquor Control 

Comm., supra; Kozal v. Nebraska Liquor Control Comm.,

297 Neb. 938, 902 N.W.2d 147 (2017). Recently, we held 
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that under the Nebraska Liquor Control Act, “the definition 

of ‘party of record’ in § 53-1,115(4) controls for purposes 

of the APA’s requirement that ‘[a]ll parties of record shall be 

made parties to the proceedings for review’ in a review of the 

Commission’s proceedings.” Kozal v. Nebraska Liquor Control 

Comm., 297 Neb. at 948, 902 N.W.2d at 155. It follows that 

the definition provided by the Nebraska Liquor Control Act 

in Neb. Rev. Stat. § 53-1,115(4) (Cum. Supp. 2018) “is the 

controlling definition of ‘party of record’ for purposes of APA 

review of the Commission’s proceedings.” Kozal v. Nebraska 

Liquor Control Comm., 297 Neb. at 948, 902 N.W.2d at 

155-56. Accord Retroactive, Inc. v. Nebraska Liquor Control 

Comm., supra.

Turning to the statutory definition, § 53-1,115(4) provides:

For purposes of this section, party of record means:

(a) In the case of an administrative proceeding before 

the commission on the application for a retail, bottle club, 

craft brewery, or microdistillery license:

(i) The applicant;

(ii) Each individual protesting the issuance of such 

license pursuant to subdivision (1)(b) of section 53-133;

(iii) The local governing body if it is entering an 

appearance to protest the issuance of the license or if it 

is requesting a hearing pursuant to subdivision (1)(c) of 

section 53-133; and

(iv) The commission.

There is no dispute that some number of individuals protested the issuance of the license to Candyland. The district 

court did not err when it concluded that for purposes of 

§ 84-917(2)(a)(i), protestants or citizen objectors were parties 

of record. See § 53-1,115(4).

Dismissal for Failure to Serve Citizen 

Objectors Was Not Error.

[3] It is well settled that for a district court to acquire jurisdiction to review a final decision of an administrative agency 

under the APA, the appellant must file the petition and serve 
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summons. See, J.S. v. Grand Island Public Schools, 297 Neb. 

347, 899 N.W.2d 893 (2017); Northern States Beef v. Stennis, 

2 Neb. App. 340, 509 N.W.2d 656 (1993).

In its December 2018 order, the district court denied 

Candyland’s motion to serve citizen objectors by publication, but according to the court’s later order of May 3, 2019, 

it recognized that it had erroneously believed in December 

2018 that the citizen objectors were not “necessary parties.” 

To the extent that the district court had dismissed the citizen 

objectors in December and thereby purportedly acquired jurisdiction by virtue of a timely filed petition and service on the 

Commission and the City of Omaha, such order was a nullity. 

A court cannot create or confer jurisdiction in itself. See State 

v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018), cert. denied

___ U.S. ___, 139 S. Ct. 2716, 204 L. Ed. 2d 1114 (2019). 

Further, even if service by publication could be appropriate, about which we make no comment, the motion was not 

accompanied by a showing by affidavit required by Neb. Rev. 

Stat. § 25-517.02 (Reissue 2016), and therefore the motion for 

service by publication was properly denied.

With respect to proper service on the citizen objectors, 

there has been considerable discussion in this appeal regarding 

the time during which Candyland was required to serve the 

citizen objectors. In their appellate briefs, the parties asserted 

that Candyland was required to serve the citizen objectors 

within 30 days of filing the petition. However, at oral argument, the Commission asserted that Candyland had 180 days 

to serve the citizen objectors, in accordance with Neb. Rev. 

Stat. § 25-217 (Reissue 2016). This assertion caused this court 

to order supplemental briefing, the result of which was that 

the Commission asserted service was required in 180 days, 

the City of Omaha asserted 30 days, and Candyland asserted 

180 days.

The time by which Candyland was required to serve the citizen objectors is controlled by the APA. Section 84-917(2)(a)(i) 

of the APA provides as follows:
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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 

a summons in section 25-510.02. If the agency whose 

decision is appealed from is not a party of record, the 

petitioner shall serve a copy of the petition and a request 

for preparation of the official record upon the agency 

within thirty days of the filing of the petition. The court, 

in its discretion, may permit other interested persons 

to intervene.

(Emphasis supplied.) Neb. Rev. Stat. § 25-510.02 (Reissue 

2016), to which reference is made in § 84-917(2)(a)(i), pertains to the manner of service on governmental entities. The 

citizen objectors, of course, are nongovernmental entities.

Section 84-917(2)(a)(i) has undergone numerous revisions 

and amendments and has received considerable treatment in 

appellate cases, each of which has tried to make sense of the 

statute as it existed at the time of its application to the case 

under review. See, e.g., Leach v. Dept. of Motor Vehicles, 

213 Neb. 103, 327 N.W.2d 615 (1982) (approving 180 days); 

Northern States Beef v. Stennis, 2 Neb. App. 340, 509 N.W.2d 

656 (1993) (approving 30 days and rejecting 180 days).

The Tax Equalization and Review Commission appeal 

statutes are modeled after the APA. Neb. Rev. Stat. 

§ 77-5019(2)(a) (Reissue 2018) contains language roughly 

equivalent to § 84-917(2)(a)(i). In Cargill Meat Solutions v. 

Colfax Cty. Bd. of Equal., 281 Neb. 93, 97, 798 N.W.2d 823, 

826 (2011), we stated that § 25-510.02 “provides the manner for serving the state or political subdivision. Obviously, 
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[the plaintiff], a private corporation, is not an entity covered 

by § 25-510.02. [The plaintiff] cannot possibly be served 

in accordance with § 77-5019(2)(a), so it cannot apply.” In 

Cargill Meat Solutions, because the county board filed its 

notice of appeal with the Nebraska Court of Appeals rather 

than with the Tax Equalization and Review Commission, 

appellate jurisdiction was never conferred under either party’s 

theory of the applicable statutes and the 30-day issue—and 

manner of service issue—was not resolved. Nevertheless, the 

Cargill Meat Solutions opinion concludes as follows:

Summing up, one thing has become abundantly clear—

the Legislature has inadvertently created a procedural 

minefield. Section 77-5019(2)(a) does not make sense. 

The statute states ‘[s]ummons shall be served on all parties . . . in the manner provided for service of a summons 

in section 25-510.02.’ As mentioned, § 25-510.02 governs 

service of process on a state or political subdivision. 

But not all parties to a [Tax Equalization and Review 

Commission] hearing or a subsequent appeal are political subdivisions. It defies the language of § 25-510.02 to 

require a county board of equalization to serve a private 

party, such as [the plaintiff], as if it were a political subdivision. In effect, the current version of § 77-5019(2)(a) 

leads to two different means for perfecting an appeal 

based upon the [party’s] status. We can think of no sensible reason for doing this.

As [the plaintiff] points out in its brief, the previous 

version of § 77-5019(2)(a) required that summons be 

served “in the manner provided for service of a summons in a civil action.” This language was workable. 

It provided the flexibility to allow a corporation to be 

served as a corporation, [Neb. Rev. Stat. § 25-509.01 

(Reissue 2016),] an individual to be served as an individual, [§ 25-508.01,] and a political subdivision to be 

served as a political subdivision[, § 25-510.02]. Stating 
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the obvious, the Legislature needs to correct this procedural trap.

281 Neb. at 98, 798 N.W.2d at 826.

[4] Failing clarity by the Legislature, we believe that serv

ice on nongovernmental entities under § 84-917(2)(a)(i) is 

required “within thirty days of the filing of the petition.” With 

respect to the 30-day provision, we agree with the reasoning of 

Northern States Beef v. Stennis, which stated:

We find that the plain meaning of the statute requires 

that summons be served within 30 days of the filing 

of the petition in order to perfect an appeal under the 

[APA]. We conclude that the Legislature intended that 

service be effected in 30 days and not 6 months as provided in § 25-217.

If the service of a summons within 30 days is not 

jurisdictional, then 30-day service of summons has no 

reason for being included in § 84-917(2)(a). We therefore 

hold that in order to perfect an appeal under the [APA], 

the party instituting the proceedings for review must file 

a petition in the district court for the county where the 

action is taken within 30 days after the service of the 

final decision by the agency, and cause summons to be 

served within 30 days of the filing of the petition.

2 Neb. App. at 340, 345-46, 509 N.W.2d at 659. Although the 

statute considered in Northern States Beef v. Stennis, supra, 

has since been amended with respect to the manner of service, 

the 30-day requirement has remained in the statute throughout 

subsequent revisions, including the version applicable to this 

case, which we have quoted above. See, also, § 84-917(2)(a) 

(Cum. Supp. 1992) (providing that summons “shall be served 

within thirty days of the filing of the petition in the manner 

provided for service of a summons in a civil action”).

In this case, it was undisputed that Candyland did not serve 

the citizen objectors within 30 days of filing the petition. The 

district court lacked jurisdiction. The district court’s decision 

to dismiss the petition for review was correct.
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CONCLUSION

Candyland failed to seek district court review in the mode 

and manner provided by the statute. By failing to serve the 

summons and a copy of the petition on the citizen objectors 

within 30 days, it failed to timely petition for review. The 

district court lacked subject matter jurisdiction under the APA. 

We likewise lack subject matter jurisdiction, and we dismiss 

Candyland’s appeal for lack of jurisdiction.

Appeal dismissed.

Funke, J., participating on briefs.

Miller-Lerman, J., concurring.

I concur in the opinion of the court but write separately to 

remark on a too frequent undesirable trend in the process.

This is one of a number of recent cases in which the State, 

appearing here for the Commission, introduced a new theory 

for the first time at appellate oral argument. See, e.g., State v. 

Vann, ante p. 91, ___ N.W.2d ___ (2020) (Miller-Lerman, J., 

concurring). Ordinarily, an appellate court will not consider 

an argument made for the first time on appeal. State v. Kruse, 

303 Neb. 799, 931 N.W.2d 148 (2019); Siedlik v. Nissen, 303 

Neb. 784, 931 N.W.2d 439 (2019). However, we have recognized that a jurisdictional argument can be tendered for the 

first time on appeal. Davis v. State, 297 Neb. 955, 902 N.W.2d 

165 (2017). At oral argument, the Commission asserted that 

Candyland had 180 days rather than 30 days to serve the nongovernmental parties. Thus, the case required supplemental 

briefing, after which the Commission asserted service was 

required in 180 days, the City of Omaha asserted 30 days, and 

Candyland asserted 180 days.

In my view, it is more respectful of the adversarial and 

judicial process to raise a critical issue at the first opportunity 

and throughout the proceedings, rather than at the last appearance of the case.