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FIDLER v. LIFE CARE CENTERS OF AMERICA

Cite as 301 Neb. 724

Virginia Fidler and Keith Fidler, appellees, 

v. Life Care Centers of America, Inc., 

doing business as Life Care Center

of Elkhorn, et al., appellants.

___ N.W.2d ___

Filed November 30, 2018. No. S-17-1243.

1. 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, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.

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 appeal.

3. Final Orders: Appeal and Error. An order is final for purposes of 

appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2016) if it affects a 

substantial right and (1) determines the action and prevents a judgment, 

(2) is made during a special proceeding, or (3) is made on summary 

application in an action after judgment is rendered.

4. Final Orders: Motions to Dismiss: Appeal and Error. There is no 

blanket rule that every order vacating a dismissal and reinstating a case 

is final and appealable; rather, the statutory criteria of Neb. Rev. Stat. 

§ 25-1902 (Reissue 2016) must be applied to determine whether the 

order appealed from is final.

5. Final Orders: Appeal and Error. Broadly stated, an order affects a 

substantial right if it affects the subject matter of the litigation, such as 

diminishing a claim or defense that was available to the appellant prior 

to the order from which he or she is appealing.

6. ____: ____. Whether an order affects a substantial right depends on 

whether it affects with finality the rights of the parties in the subject 

matter. It also depends on whether the right could otherwise effectively 

be vindicated. An order affects a substantial right when the right would 

Nebraska Supreme Court Online Library

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

01/04/2019 01:07 AM CST
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Cite as 301 Neb. 724

be significantly undermined or irrevocably lost by postponing appellate review.

7. Final Orders: Case Disapproved: Appeal and Error. The Nebraska 

Supreme Court’s decision in Jarrett v. Eichler, 244 Neb. 310, 506 

N.W.2d 682 (1993), is disapproved to the extent it held that the order 

appealed from affected a substantial right by destroying a defense in 

a future hypothetical action. The decisions in Gutchewsky v. Ready 

Mixed Concrete Co., 219 Neb. 803, 366 N.W.2d 751 (1985); A. Hirsh, 

Inc. v. National Hair Co., 210 Neb. 397, 315 N.W.2d 236 (1982); and 

Fanning v. Richards, 193 Neb. 431, 227 N.W.2d 595 (1975), are disapproved to the extent that they implicitly rely upon that same reasoning 

in Jarrett.

Appeal from the District Court for Douglas County: Duane

C. Dougherty, Judge. Appeal dismissed.

Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson, 

Dugan & Murray, L.L.P., for appellants.

Shayla Reed, of Reed Law Offices, P.C., L.L.O., for 

appellees.

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

Papik, and Freudenberg, JJ.

Per Curiam.

INTRODUCTION

After the district court administratively dismissed a negligence action for failure to timely submit a proposed scheduling 

order, it granted a motion to reinstate the case. This appeal followed. Because we conclude that the district court’s reinstatement order was not a final, appealable order, we dismiss the 

appeal. In doing so, we disapprove of several decisions to the 

extent that they conflict with our reasoning here.

BACKGROUND

Virginia Fidler resided at a skilled nursing and rehabilitation facility in Elkhorn, Nebraska, from September 16 to 21, 

2013, while recovering from an infection. During Virginia’s 
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FIDLER v. LIFE CARE CENTERS OF AMERICA

Cite as 301 Neb. 724

stay at the facility, a large blood clot developed on her left 

lower leg which thereafter required hospitalization and emergency surgery.

Virginia and Keith Fidler brought this professional and 

medical malpractice action against Life Care Centers of 

America, Inc., doing business as Life Care Center of Elkhorn, 

and related entities (collectively Life Care Centers) arising 

from allegedly negligent conduct. The Fidlers claimed that 

Virginia suffered permanent nerve damage and functional loss 

in her leg due to a delay of treatment occasioned by Life Care 

Centers’ negligence. The Fidlers filed the action on September 

8, 2015.

Because no proposed scheduling order had been filed, a 

“Notice of Intent to Dismiss” was filed by the district court 

administrator on January 31, 2017. The notice stated it was 

issued “[p]ursuant to Rule 4-10” and was “sent to inform each 

party that, within thirty (30) days from the date of this notice, 

you must submit a Proposed Scheduling Order (PSO) indicating” various items reflecting the status of the case or the case 

would be dismissed. The notice also provided that if the case 

were so dismissed, “[p]ursuant to Rule 4-10(C), . . . the judge 

to whom the case is assigned has the discretion to reinstate the 

case.” On March 6, the case was administratively dismissed 

for lack of prosecution.

On July 17, 2017, the Fidlers filed a motion to set aside the 

order of dismissal and reinstate the case. They attached to their 

motion an affidavit of counsel setting forth a detailed accounting of the activity that had occurred in the case, designed to 

show that the parties had been actively prosecuting the case. 

The affidavit of the Fidlers’ counsel also stated that due to 

an error, the 30-day deadline contained in the notice was not 

entered on the calendar.

The district court conducted an evidentiary hearing on 

August 8, 2017, at which the affidavit of the Fidlers’ counsel 

was received. Following briefing by both parties, the court 

entered an order on November 16 reinstating the case. The 
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Cite as 301 Neb. 724

court noted that the Fidlers presented an affidavit showing they 

were properly pursuing prosecution of the case and that they 

submitted a proposed scheduling order. The court found good 

cause to reinstate the case and further stated that “dismissal 

of this matter would be an extreme remedy and would be a 

miscarriage of justice.” The court also stated that reinstatement 

of the case would not prejudice Life Care Centers. With minor 

alteration, the court executed the proposed scheduling order 

submitted by the Fidlers.

Life Care Centers appeals.

ASSIGNMENTS OF ERROR

Life Care Centers claims, restated, that (1) the district court 

erred when it applied the local rules regarding reinstatement of 

cases instead of Neb. Rev. Stat. § 25-201.01 (Reissue 2016) to 

decide whether to reinstate the case and (2) even if the local 

court rule for case progression applies, the district court erred 

when it found that the Fidlers had demonstrated good cause 

for reinstatement.

STANDARD OF REVIEW

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

law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.1

ANALYSIS

[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 appeal.2 There was no judgment entered 

finally determining the rights and liabilities of the parties. 

Therefore, our inquiry focuses on the order vacating dismissal 

1 State ex rel. Rhiley v. Nebraska State Patrol, ante p. 241, 917 N.W.2d 903 

(2018).

2 Id.
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and reinstating the case. Neither party contests the validity of 

the order administratively dismissing the action, and for purposes of this opinion, we assume that the dismissal order was 

valid and effective.

[3,4] Appellate jurisdiction turns on whether the order vacating dismissal and reinstating the case was a final order under 

Neb. Rev. Stat. § 25-1902 (Reissue 2016). An order is final for 

purposes of appeal under § 25-1902 if it affects a substantial 

right and (1) determines the action and prevents a judgment, 

(2) is made during a special proceeding, or (3) is made on 

summary application in an action after judgment is rendered.3

In Deines v. Essex Corp.,

4

 we clarified there is no “blanket rule 

that every order vacating a dismissal and reinstating a case is 

final and appealable. Rather, the statutory criteria of § 25-1902 

must be applied to determine whether the order appealed from 

is final.”5

[5,6] Broadly stated, an order affects a substantial right if it 

“‘“affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant 

prior to the order from which he or she is appealing.”’”6 Our 

final order jurisprudence recognizes that it is not enough that 

a right be substantial; the effect of the subject order on that 

right must also be substantial.7 “Whether the effect of an order 

is substantial depends on ‘“whether it affects with finality the 

rights of the parties in the subject matter.”’”8 It also depends 

on whether the right could be effectively vindicated absent 

interlocutory review; an order affects a substantial right when 

3 See Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 

(2018).

4 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).

5 Id. at 580, 879 N.W.2d at 33.

6 Id. at 581, 879 N.W.2d at 33-34.

7 See Deines, supra note 4.

8 Id. at 581, 879 N.W.2d at 33.
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the right would be significantly undermined or irrevocably lost 

by postponing appellate review.9

Life Care Centers relies on our reasoning in Jarrett v. 

Eichler 10 to argue that a substantial right was affected by the 

order reinstating this case to the active docket. In Jarrett, 

a negligence action was timely filed, but was dismissed for 

want of prosecution after the statute of limitations expired. 

In considering whether the order vacating the dismissal and 

reinstating the action was a final, appealable order, we found 

it significant that the plaintiff would not have been able to successfully file a new negligence action, because the defendants 

“could have prevailed on a statute of limitations defense.”11

From there, we reasoned that the order reinstating the case 

“destroyed [a] defense which was previously available to 

appellant” and thus affected a substantial right.12 Jarrett did 

not consider the effect of the savings clause in § 25-201.01, 

as that statute was not enacted until several years after Jarrett

was decided.

Jarrett supports, we acknowledge, the argument that the 

order appealed from here is a final order. However, our “substantial right” analysis in Jarrett focused on the wrong action. 

Rather than asking whether a substantial right of the parties 

in the subject action was affected by reinstatement, Jarrett

focused on whether reinstatement would affect a substantial 

right available in a new, hypothetical action. That misdirected 

focus caused us to answer the wrong question and allowed us 

to find a final, appealable order where none existed.

In Jarrett, we relied upon two earlier decisions, neither 

of which compelled our reasoning regarding the statute of 

limitations in a future case. First, we relied upon Gutchewsky 

9 Deines, supra note 4.

10 Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993).

11 Id. at 314, 506 N.W.2d at 685.

12 Id.
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v. Ready Mixed Concrete Co.13 However, in that case, we did 

not consider our jurisdiction over an appeal from an order 

vacating an earlier dismissal. Instead, we cited case law 

addressing the merits of a reinstatement order, noting that 

the “‘fact that a new suit would be barred is an important 

consideration . . . .’”14 This first case did not stand for the 

proposition that the inability to assert a statute of limitations 

defense in a future, hypothetical case affected a substantial 

right in the current case. Second, we cited to A. Hirsh, Inc. 

v. National Hair Co.15 In that case, we did not even mention 

a statute of limitations, although it seems clear that the case 

had pended beyond the limitation. We did not discuss jurisdiction. The most that can be said for either of these earlier cases 

is that because we did not discuss jurisdiction, we implicitly 

determined that it existed. But neither case discussed whether 

a reinstatement order affected a substantial right because of an 

inability to raise a statute of limitations defense in the reinstated case.

A respected commentator noted that in Jarrett, this court 

could have held that the order under review was not final but 

that to do so would have required us “to say that [we had] made 

a mistake in reviewing the order in five cases.”16 In addition 

to the two discussed in the preceding paragraph, the commentator identified three other cases.17 In one of these decisions, 

Fanning v. Richards,

18 we addressed a reinstatement order 

13 Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803, 366 N.W.2d 751 

(1985).

14 Id. at 806, 366 N.W.2d at 753 (quoting Schaeffer v. Hunter, 200 Neb. 221, 

263 N.W.2d 102 (1978)).

15 A. Hirsh, Inc. v. National Hair Co., 210 Neb. 397, 315 N.W.2d 236 (1982).

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

Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 248 (2001).

17 Id. at 248 n.46.

18 Fanning v. Richards, 193 Neb. 431, 227 N.W.2d 595 (1975).
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(after a dismissal for lack of prosecution) without discussing 

jurisdiction or the substantial right supposedly affected by the 

reinstatement order. There is no indication in our opinion that 

a statute of limitations had expired. And we simply did not discuss jurisdiction. In the two other cases, Vacca v. DeJardine19

and Jones v. Nebraska Blue Cross Hospital Service Assn.,

20

we addressed appeals for orders vacating default judgments 

and permitting suits to go forward. In both of these cases, 

the affected party had secured a judgment, of which it was 

deprived by the appealed order. There, the judgment creditor’s 

right to collect by execution of its judgment in the current 

case—not some future, hypothetical case—was affected by 

taking away that default judgment. We do not agree that those 

two cases were wrongly decided.

[7] We conclude that our final order jurisprudence would 

be strengthened by expressly disapproving of the statute of 

limitations reasoning in Jarrett, and we do so to the extent that 

Jarrett held that the order appealed from affected a substantial 

right by destroying a defense in a future hypothetical action. 

We also disapprove of Gutchewsky21; A. Hirsh, Inc.22; and 

Fanning23 to the extent that they implicitly rely upon that same 

reasoning in Jarrett.

We instead emphasize that courts should apply the statutory 

criteria of § 25-1902 to determine whether orders vacating dismissal and reinstating cases are final and appealable.24 Doing 

so here, we conclude Life Care Centers has not appealed from 

a final order.

19 Vacca v. DeJardine, 213 Neb. 736, 331 N.W.2d 516 (1983).

20 Jones v. Nebraska Blue Cross Hospital Service Assn., 175 Neb. 101, 120 

N.W.2d 557 (1963).

21 Gutchewsky, supra note 13.

22 A. Hirsch, Inc., supra note 15.

23 Fanning, supra note 18.

24 See Deines, supra note 4.
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Cite as 301 Neb. 724

Life Care Centers contends the order affected a substantial 

right for two reasons: “[T]he case was reinstated (1) after the 

statute of limitations had expired and (2) after [the Fidlers] 

retained an expert to testify as to liability and causation.”25 On 

this record, neither circumstance affects a substantial right in 

this action.

First, because to that extent Jarrett was wrongly decided, it 

makes no difference to our substantial right analysis that Life 

Care Centers may have a viable statute of limitations defense 

to a hypothetical new action brought by the Fidlers. We consider only the existing case, as, obviously, no new case was 

filed by the Fidlers. And our final order inquiry asks whether 

a substantial right in the instant case, not a hypothetical future 

case, was affected by the order of reinstatement.

Nor are we persuaded by the argument that the order of 

reinstatement affected a substantial right due to the Fidlers’ 

retention of an expert witness. Life Care Centers argues that 

when the case was dismissed, the Fidlers had not yet retained 

an expert to testify regarding liability or causation, but that 

by the time the case was reinstated several months later, they 

had. Life Care Centers does not suggest the Fidlers would have 

been unable, absent the dismissal, to retain an expert, nor do 

they explain how the relatively common development of hiring an expert to prepare a medical negligence case for trial 

affected a substantial right.

The fact that an order of reinstatement may allow the case 

to move forward to trial does not, without more, mean the 

order affects a substantial right of the opposing party.26 And 

although reinstatement of this case may require Life Care 

Centers to defend this case to conclusion, that was true before 

dismissal as well, and the “‘[o]rdinary burdens of trial do not 

necessarily affect a substantial right.’”27

25 Brief for appellants at 1.

26 See Deines, supra note 4.

27 Id. at 582, 879 N.W.2d at 34.
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On this record, the most that can be said regarding the effect 

of the order vacating dismissal and reinstating the case is that 

it put the parties back in roughly the same litigation posture 

as before the action was dismissed. There is nothing about the 

order reinstating this case that affected with finality the parties’ rights in this action. And there is no evidence that any 

right would be diminished, undermined, or lost by postponing 

appellate review of the order until after this case proceeds to 

final judgment. Where, as here, reinstatement cannot be shown 

to affect a substantial right in the action, there is no reason to 

disrupt the orderly progression of the case and postpone final 

resolution of the parties’ claims and defenses by entertaining 

an interlocutory appeal.

CONCLUSION

Because we lack jurisdiction to consider the order appealed 

from, we dismiss the appeal.

Appeal dismissed.