Appellate Practice in Nebraska: a Thorough, Though Not Exhaustive, Primer in How to Do it and How to Be More Effective

• Publication year: 2022

39 Creighton L. Rev. 29. APPELLATE PRACTICE IN NEBRASKA: A THOROUGH, THOUGH NOT EXHAUSTIVE, PRIMER IN HOW TO DO IT AND HOW TO BE MORE EFFECTIVE

Creighton Law Review

Vol. 39

DANIEL L. REAL(fn*)

I. INTRODUCTION

Ambrose Bierce sarcastically defined "appeal" as "In law, to put the dice into the box for another throw."(fn1) Bierce's definition, while perhaps good satire, could not be further from the truth. In reality, appellate practice is a unique form of litigation, subject to its own rules and nuances, and requires much more than attempting to reargue the same issues in a different forum. "Appellate work is most assuredly not the recycling of trial level points and authorities."(fn2) Indeed, "because the orientation in appellate courts is on whether the trial court committed a prejudicial error of law, the appellate practitioner . . . who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product."(fn3) Being successful in appellate practice requires thoughtful and careful consideration of the case in a whole new light and demands attention to a host of rules and procedural details.

An exhaustive consideration of every aspect of appellate practice in Nebraska is well beyond the scope of this type of article.(fn4) Nonetheless, there are certain important considerations, with ramifications for the outcome of the case, which should be understood by anyone seeking to be successful in Nebraska's appellate courts. These considerations include such matters as ensuring jurisdiction of the appellate court, both by making sure there has been a properly rendered and entered final order by the trial court and by making sure the appeal has been properly perfected; understanding and complying with the applicable court rules governing the appellate process, including considerations about the preparation of the record to present to the appellate court, preparation of the appellate brief, and understanding the rules governing oral arguments; and understanding the various forms of disposition available to the appellate courts. In addition, because of the unique nature of appellate litigation, successful appellate practice requires employing techniques for more effective presentation of appellate argument, both in the written appellate brief and in the oral argument. While not seeking to be an exhaustive consideration of appellate practice in Nebraska, this Article seeks to discuss each of the foregoing considerations in some depth to serve as both an educational tool and as a reference point for more effective appellate advocacy in Nebraska.

II. JURISDICTION OF THE APPELLATE COURT

In reality, the appellate process begins long before the trial concludes. Many issues a litigant might hope to raise on appeal must be properly preserved at the trial level. For example, specific and timely evidentiary objections must be made,(fn5) offers of proof sometimes must be made,(fn6) and jury instructions must be objected to or tendered to the trial court,(fn7) to list only a few of the trial level issues that can ultimately influence appellate success. Nonetheless, for purposes of this Article, the first consideration of a litigant seeking successful appellate review is ensuring that an appellate court has jurisdiction to review the trial court's adverse ruling.

Jurisdiction is, of course, a court's power to decide a case presented to it.(fn8) One of the most fundamental, black letter principles of jurisprudence in Nebraska is that "[b]efore 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."(fn9) So fundamental is this principle that the appellate court has the duty to raise and determine the issue of jurisdiction sua sponte, notwithstanding whether the parties raise the issue.(fn10) For purposes of this Article, three specific considerations about the issue of appellate jurisdiction merit discussion: ensuring standing to invoke the jurisdiction of the appellate court, ensuring the rendition and entry of a final order by the trial court, and ensuring the proper perfection of the appeal in the appellate court. In addition, there are special rules that must be followed in the limited situations in which the State has the right to prosecute an appeal in a criminal case.

A. STANDING TO INVOKE APPELLATE JURISDICTION

A preliminary matter that occasionally complicates the issue of appellate jurisdiction is standing. Standing is considered a jurisdictional matter because only a party who has standing may invoke the jurisdiction of a court.(fn11) The right to bring an appeal is generally available only to persons who were parties to the case at the trial level, although in some cases a nonparty may be held to be sufficiently interested in the trial court's judgment to be permitted to take an appeal.(fn12) The most common challenges to standing at the appellate level concern whether the appealing party has a sufficient interest in the trial court's order and whether the appealing party was aggrieved by the trial court's order.(fn13)

Standing requires that the litigant have a sufficient personal stake in the outcome of the controversy to warrant invocation of the appellate court's jurisdiction and to justify the exercise of the appellate court's remedial powers on behalf of the litigant.(fn14) For example, the Nebraska Supreme Court has held that a for-profit corporation that was disqualified from continued legal representation of one of the parties in a child support enforcement action lacked a sufficient personal interest in the outcome of the action to confer standing on the corporation to appeal the disqualification order.(fn15) Because the corporation was not a party of record and the client did not prosecute an appeal from the disqualification order, the Nebraska Supreme Court found a lack of standing and dismissed the appeal for lack of appellate jurisdiction.(fn16) In so finding, the Nebraska Supreme Court specifically noted that "'[A] litigant must assert the litigant's own legal rights and interests, and cannot rest his or her claim on the legal rights or interests of third parties.'"(fn17)

In addition, standing at the appellate level generally requires that the party seeking to appeal be aggrieved by the order of the trial court.(fn18) "Only an aggrieved party can take an appeal."(fn19) If a litigant has been granted that which he or she sought from the trial court, the litigant will not be considered to have been aggrieved and will be found to lack standing to bring an appeal.(fn20) For example, when a liti-gant brought a cause of action including both assumpsit and nondisclosure theories of recovery, under either of which the litigant was entitled only to money damages, and the litigant was awarded damages based on the assumpsit theory but not the nondisclosure theory, the Nebraska Supreme Court held that the litigant was granted that which she had sought from the trial court; she was not an aggrieved party simply because she had not been successful on both theories.(fn21) The litigant lacked standing to challenge the trial court's ruling on the nondisclosure theory because, as a result of being successful on the assumpsit theory, she had already received precisely the relief that she had sought: monetary damages.(fn22)

B. ENSURING RENDITION AND ENTRY OF A FINAL ORDER BY THE TRIAL COURT

As a general matter, Nebraska Revised Statute section 25-1911 provides the basis for appellate jurisdiction over matters appealed from the district court.(fn23) Section 25-1911 specifically provides that "[a] judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record." In Nebraska, the appellate courts are without jurisdiction to act and must dismiss a purported appeal if there is no final judgment or final order.(fn24) The plain meaning of section 25-1911 demands consideration and understanding of the two related, but very different, concepts of final judgments and final orders.

1. Final Judgments in Civil and Criminal Cases

In Nebraska, final judgments of the district court are defined in Nebraska Revised Statute section 25-1301(1) as "the final determina-tion of the rights of the parties in an action." Section 25-1301 further sets forth the procedure for a district court to properly render and enter a final judgment. In Nebraska, rendition and entry are considered two separate, but equally necessary, ministerial requirements for a final judgment.(fn25)

The first ministerial requirement, set forth in section 25-1301 (2), is rendition of the final judgment. "Rendition of a judgment is the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action."(fn26) The second ministerial requirement, set forth in section 25-1301 (3), is entry of the final judgment. Entry of a judgment "occurs when the clerk of the court places the file stamp and date upon the judgment"(fn27) and "[f]or purposes of determining the time for appeal, the date stamped on the judgment . . . shall be the date of entry."(fn28) The Nebraska Court of Appeals has specifically held that section 25-1301 requires orders to be both signed by the judge as well as file stamped and...