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Nebraska Supreme Court Advance S

299 Nebraska Report

E.D. v. BELLEVUE PUB. SCH. DIST.

Cite as 299 Neb. 621

E.D., appellee and cross-appellee, v. Bellevue

School District, appellant, and Bradley

appellee and cross-appella

___ N.W.2d ___

Filed April 13, 2018. No. S-17-590.

1. Jurisdiction: Appeal and Error. When a jurisdictional question does 

not involve a factual dispute, its determination is a matter of law, which 

requires an appellate court to reach a conclusion independent of the 

decision made by the lower court.

2. ____: ____. 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.

3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

4. Jurisdiction: Statutes: Appeal and Error. Appellate jurisdiction in 

Nebraska is purely statutory.

5. 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.

6. 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 when it is not authorized by statute.

7. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.

8. Jurisdiction: Statutes: Judgments: Final Orders: Appeal and 

Error: Case Overruled. The Nebraska Supreme Court’s decision in 

StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271 

(2011), modified on denial of rehearing 281 Neb. 978, 802 N.W.2d 

420, is overruled to the extent that it authorized appellate jurisdiction 

in the absence of a judgment or final order and without specific statutory authorization.

Nebraska Supreme Court Online Library

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

05/04/2018 12:09 AM CDT
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299 Nebraska Report

E.D. v. BELLEVUE PUB. SCH. DIST.

Cite as 299 Neb. 621

Appeal from the District Court for Sarpy County: Georg

A. Thompson and Stefanie A. Martinez, Judges.

dismissed.

Jeanelle R. Lust and Carly Bahramzad, of Knudsen, 

Berkheimer, Richardson & Endacott, L.L.P., for appellant.

Matthew A. Lathrop, of Law Office of Matthew A. Lathrop, 

for appellee E.D.

Thomas J. Culhane and Matthew B. Reilly, of Erickson & 

Sederstrom, P.C., for appellee Bradley Nord.

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

JJ., and Steinke, District Judg

Funke, 

E.D. brought suit against the Bellevue Public School District 

(BPS) and Bradley Nord, under the Political Subdivisions Tort 

Claims Act (PSTCA).1 This is an appeal and cross-appeal from 

an order overruling claims of sovereign immunity in separate motions to dismiss. Because an appeal from the order 

at issue is not statutorily authorized, we dismiss the appeal 

and cross-appeal.

BACKGROUND

In November 2016, E.D. filed a complaint in district court 

alleging various negligence claims against BPS and Nord. In 

the complaint, E.D. alleged, inter alia, the following: While 

Nord was a BPS teacher and E.D. was a BPS student, above 

the age of legal consent, Nord made nonconsensual sexual contact with E.D. that began a nearly yearlong sexual relationship 

between the two occurring primarily on BPS premises.

E.D.’s negligence claims assert, generally, that BPS breached 

its duty to provide a safe environment to students and to 

enact reasonable policies governing an extracurricular teacher’s 

1 Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).
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E.D. v. BELLEVUE PUB. SCH. DIST.

Cite as 299 Neb. 621

aide program, which paired E.D. and Nord, to protect students. E.D. claims that her harm was a foreseeable result of 

BPS’ negligence.

BPS and Nord filed separate motions to dismiss claiming sovereign immunity under the PSTCA’s intentional tort 

exception,2 which motions the court denied. Nord filed a 

motion to reconsider or to alter or amend, which the court also 

denied. BPS filed a timely appeal, and Nord cross-appealed.

The Nebraska Court of Appeals dismissed BPS’ appeal for 

lack of jurisdiction, under Neb. Ct. R. App. P. § 2-107(A)(2) 

(rev. 2017), finding the ruling on the motion to dismiss was 

not a final, appealable order. BPS filed a motion for reconsideration. The Court of Appeals granted the motion for reconsideration and reinstated the appeal. We removed the case to our 

docket on our own motion pursuant to our authority to regulate 

the caseloads of the Court of Appeals and this court.3

ASSIGNMENTS OF ERROR

BPS assigns, restated, that the court erred (1) in not finding it was entitled to immunity in this case; (2) in failing to 

dismiss all allegations of negligence against it because Nord’s 

intentional acts were the “but for” cause of the allegations; and 

(3) in relying on third-party, instead of political subdivision 

employee, intentional act cases.

On cross-appeal, Nord assigns, restated, that the court erred 

in failing to find that he was entitled to immunity under 

the PSTCA.

STANDARD OF REVIEW

[1] When a jurisdictional question does not involve a factual 

dispute, its determination is a matter of law, which requires an 

appellate court to reach a conclusion independent of the decision made by the lower court.4

2 See § 13-910(7).

3 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

4 Tilson v. Tilson, ante p. 64, 907 N.W.2d 31 (2018).
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E.D. v. BELLEVUE PUB. SCH. DIST.

Cite as 299 Neb. 621

ANALYSIS

E.D. argues this court is without statutory authority to consider this appeal because the court’s order was not final and the 

collateral order doctrine does not apply in this case.

BPS concedes that the order it appealed from is not a final 

order but argues that we have jurisdiction over its appeal 

under the collateral order doctrine. It also asserts that E.D. 

is precluded from raising the issue of jurisdiction before 

this court because the Court of Appeals’ decision to grant its 

motion for reconsideration and reinstate the appeal is the law 

of the case.

This Court Is Not Precluded

Considering Jurisdi

[2,3] Before reaching the legal issues presented for review, 

it is our duty to determine whether we have jurisdiction over 

this appeal.5 Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.6

Further, the law-of-the-case doctrine, which precludes a 

trial court from reconsidering issues decided by an appellate 

court,7 in no way precludes the Nebraska Supreme Court from 

reconsidering decisions by the Court of Appeals.8 Additionally, 

the Court of Appeals’ reinstatement of the appeal was not a 

determination of the jurisdictional issue but only a determination that there was not a clear lack of jurisdiction under 

settled precedent.

There Is No Statutory Autho

for Present App

[4] We have long held that appellate jurisdiction in 

Nebraska is purely statutory and an appellate court acquires 

5 Id.

6 Cappel v. State, 298 Neb. 445, 905 N.W.2d 38 (2017).

7 See State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).

8 See Neb. Rev. Stat. § 25-204 (Reissue 2016).
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no jurisdiction unless the appellant has satisfied the statutory 

requirements for appellate jurisdiction.9

For an appellate court to acquire jurisdiction of an appeal, 

the party must be appealing from a final order or a judgment.10

The Legislature has defined a “judgment” as “the final determination of the rights of the parties in an action.”11 Conversely, 

every direction of a court or judge, made or entered in writing 

and not included in a judgment, is an order.12

The three types of final orders that an appellate court may 

review are (1) an order that affects a substantial right and 

that determines the action and prevents a judgment, (2) an 

order that affects a substantial right made during a special 

proceeding, and (3) an order that affects a substantial right 

made on summary application in an action after a judgment is 

rendered.13 In contrast, 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.14

The overruling of a motion to dismiss is typically not a 

final order.15 BPS conceded that the court’s order overruling its 

motion to dismiss was not a final order, and we agree.

In StoreVisions v. Omaha Tribe of Neb.,

16 however, we held 

that an appeal from an interlocutory order denying sovereign 

9 See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). See, 

also, Neb. Const. art. V, § 2.

10 Heckman, supra note 9. See, also, Neb. Rev. Stat. §§ 25-1911 and 25-1912 

(Reissue 2016).

11 Neb. Rev. Stat. § 25-1301 (Reissue 2016).

12 Neb. Rev. Stat. § 25-914 (Reissue 2016).

13 Tilson, supra note 4. See, also, Neb. Rev. Stat. § 25-1902 (Reissue 2016).

14 Tilson, supra note 4.

15 State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017), citing StoreVisions 

v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271 (2011), modified 

on denial of rehearing 281 Neb. 978, 802 N.W.2d 420.

16 StoreVisions, supra note 15.
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E.D. v. BELLEVUE PUB. SCH. DIST.

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immunity vested this court with jurisdiction, under the collateral order doctrine. To fall within the doctrine, an order must 

(1) conclusively determine the disputed question, (2) resolve 

an important issue completely separate from the merits of the 

action, and (3) be effectively unreviewable on appeal from a 

final judgment.17

Our holding in StoreVisions was a continuation of several 

decisions in which we applied the collateral order doctrine 

to the appeals of nonfinal orders, the genesis of which was 

our decision in Richardson v. Griffiths.

18 In Richardson, we 

addressed the applicability of the collateral order doctrine 

and determined that a district court’s order disqualifying an 

attorney was appealable despite the fact that it was not a final 

order.19 We applied the three factors set forth above and concluded that the collateral order doctrine authorized us to hear 

the appeal.20

Recently, however, in Heckman v. Marchio,

21 we overruled our decision in Richardson and the cases relying upon

its application of the collateral order doctrine, which they 

primarily referred to as the Richardson exception, “to the 

extent that they authorized appellate jurisdiction in the absence 

of a judgment or final order and without specific statutory 

authorization.”22

[5,6] Heckman also concerned an appeal from a court’s 

granting of a motion to disqualify counsel in a civil case. 

In Heckman, we stated that our decision in Richardson had 

been directly contrary to a U.S. Supreme Court decision 

which specifically rejected the application of the collateral 

17 Id.

18 Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997), overruled,

Heckman, supra note 9.

19 See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).

20 Richardson, supra note 18.

21 Heckman, supra note 9, 296 Neb. at 467, 894 N.W.2d at 303.

22 See, e.g., Williams, supra note 19.
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order doctrine to orders disqualifying counsel in civil cases.23

However, we also disavowed Richardson based on the lack of 

statutory authority for the decision. We stated:

We used [the Richardson exception] 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, courts 

have no power to allow an appeal when it is not authorized by statute.24

While our holding in Heckman was limited to overruling 

Richardson and our use of the Richardson exception, our reasoning therein is directly at odds with our continued application of the collateral order doctrine to an interlocutory order 

denying sovereign immunity.

In StoreVisions,

25 the defendant appealed after the court 

denied its motion to dismiss raising a defense of sovereign 

immunity. On appeal, we determined that the order appealed 

from was not final. Nevertheless, citing our opinions in Hallie 

Mgmt. Co. v. Perry26 and Williams v. Baird,

27 we considered the 

collateral order doctrine and concluded that an order denying 

sovereign immunity was immediately reviewable, following 

U.S. Supreme Court precedent.28

However, like in Richardson,

29 we did not provide any 

statutory authority for the application of the collateral order 

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

L. Ed. 2d 340 (1985).

24 Heckman, supra note 9, 296 Neb. at 464, 894 N.W.2d at 301.

25 StoreVisions, supra note 15.

26 Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).

27 Williams, supra note 19.

28 See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 

506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993).

29 Richardson, supra note 18.
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Cite as 299 Neb. 621

doctrine to a denial of sovereign immunity in StoreVisions, 

Hallie, or Williams. Hallie and Williams, instead, simply relied 

on our adoption of the collateral order doctrine in Richardson

and cited the U.S. Supreme Court decision recognizing the 

doctrine.

30 While, unlike in Richardson, the U.S. Supreme 

Court does apply the collateral order doctrine to the denial of 

sovereign immunity, the broader reasoning of Heckman31—that 

this court cannot provide appellate jurisdiction circumventing 

that expressly prescribed in Nebraska by the Legislature—continues to apply here.

[7] Similar to the court in Heckman, we find that our 

application of the collateral order doctrine to permit appeals 

from interlocutory orders denying sovereign immunity has no 

basis in the statutory definition of “final order” in § 25-1902. 

Section 25-1902 explicitly presents three orders that are considered “final” for the purposes of §§ 25-1911 and 25-1912. 

The intent of the Legislature is expressed by omission as well 

as by inclusion.32 Accordingly, our decision treating the doctrine as an exception to this statute or, effectively, as a fourth 

type of final order amounted, instead, to impermissible judicial legislation.

[8] While the issues of legislative acquiescence and 

stare decisis are implicated in our current reconsideration 

of StoreVisions33 to the same extent as in Heckman, such 

issues were adequately resolved in Heckman and need not 

be restated here, as that analysis applies with equal force 

to this context. Therefore, we overrule StoreVisions to the 

extent that it authorized appellate jurisdiction in the absence 

of a judgment or final order and without specific statutory 

authorization.

30 See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. 

Ed. 1528 (1949).

31 Heckman, supra note 9.

32 In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014).

33 StoreVisions, supra note 15.
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E.D. v. BELLEVUE PUB. SCH. DIST.

Cite as 299 Neb. 621

CONCLUSION

Because this appeal was from a nonfinal order and because 

we overrule the application of the collateral order doctrine 

to the extent that it authorizes an interlocutory appeal from 

a denial of sovereign immunity, we dismiss the appeal and 

cross-appeal.

Appeal dismissed

Wright, J., not participating