What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute

• Publication year: 2021

80 Nebraska L. Rev. 239. What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute

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John P. Lenich(fn*)

What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . 240 R
II. Current Definitions of the Key Statutory Terms . . . . . . 243 R
III. The New York Code of Civil Procedure . . . . . . . . . . . 254 R
A. The Distinction Between Actions and Special
Proceedings . . . . . . . . . . . . . . . . . . . . . . 256 R
B. Appellate Jurisdiction of the New York Court of
Appeals . . . . . . . . . . . . . . . . . . . . . . . . 263 R
IV. Go West, Young Code . . . . . . . . . . . . . . . . . . . 273 R
A. Ohio . . . . . . . . . . . . . . . . . . . . . . . . . 273 R
B. Nebraska . . . . . . . . . . . . . . . . . . . . . . . 277 R
V. Refocusing the Law of Special Proceedings. . . . . . . . . 279 R
A. Procedure-Based Special Proceedings . . . . . . . . . . 285 R
1. Single-Faceted Proceedings . . . . . . . . . . . . . 286 R
2. Multifaceted Special Proceedings . . . . . . . . . . 287 R
B. Policy-Based Special Proceedings . . . . . . . . . . . 297 R
1. The Old Wine: Special Proceedings . . . . . . . . . 297 R
2. The New Bottles: Collateral Orders . . . . . . . . . 306 R
3. To Appeal or Not to Appeal, That is the
Question . . . . . . . . . . . . . . . . . . . . . . 309 R
C. Orders Made on Summary Applications . . . . . . . . . . 312 R
VI. Bidding Farewell to Orders That Prevent Judgments . . . . 315 R
A. The Contemporary Uses. . . . . . . . . . . . . . . . . 316 R
1. Reversals and Remands. . . . . . . . . . . . . . . . 316 R
2. Multiple Claim/Multiple Party Litigation . . . . . . 319 R
B. The Historical Meaning . . . . . . . . . . . . . . . . 324 R
C. The Farewell . . . . . . . . . . . . . . . . . . . . . 333 R
VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 333 R

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I. INTRODUCTION

As a general rule, an appeal can only be taken from a final judgment. The final judgment rule in Nebraska is grounded in sections 25-1911 and 25-2728. Section 25-1911 allows appeals from the judgments and final orders of the district courts, while section 25-2728 allows appeals from the judgments and final orders of county courts.(fn1) A final judgment or order is one that ends the case. As the Nebraska Supreme Court has often said, a final order "dispose[s] of the whole merits of the case. When no further action of the court is required to dispose of a pending cause, the order is final. If the cause is retained for further action, the order is interlocutory."(fn2)

But not all "final orders" are actually final orders. Some are interlocutory. For example, orders that are made in a special proceeding and affect a substantial right are final, appealable orders regardless of whether they dispose of the whole merits of the case.(fn3) They are final, appealable orders because section 25-1902 classifies them as such. Section 25-1902 provides:

An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified, or reversed . . . .(fn4)

It is by no means clear, however, what constitutes a special proceeding and what constitutes a substantial right. The case law is a confusing collection of slogans and contradictions. The cases say that special proceedings are civil(fn5)-yet there are special proceedings that are criminal.(fn6) The cases say that special proceedings are statutory(fn7)-

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yet there are special proceedings that are nonstatutory.(fn8) The cases say that special proceedings are not encompassed in chapter 25 of the Nebraska Revised Statutes(fn9)-yet there are special proceedings that are encompassed in chapter 25.(fn10) The cases say that orders affect a substantial right when they diminish a defense(fn11)-yet there are orders that reject a defense but do not affect a substantial right.(fn12)

This confusion is not good for anyone. It makes it hard for judges to resolve jurisdictional challenges to appeals.(fn13) It also makes it hard for lawyers to know when to appeal, which is something that lawyers need to know. If an order is a final order within the meaning of section 25-1902, then one cannot wait until the end of the case to appeal. The appeal must be filed within 30 days after the entry of the order.(fn14)

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Otherwise, one waives any right to appeal the order.(fn15) If an order is not a final order within the meaning of section 25-1902, however, then one has to wait until the end of the case. The appeal must be filed within 30 days after the entry of the judgment or final order. Jumping the gun by filing a premature appeal is a waste of time and money. Such an appeal will be dismissed for lack of jurisdiction.(fn16)

In an attempt to reduce the confusion, I will first survey the court's current approach to the special proceedings clause of section 25-1902. I will then explore the historical roots of the statute. Those roots twist their way from Nebraska to Ohio to New York, where they end in the Field Code. The roots are worth exploring because they indicate that the keystone of the statute was not "substantial right," but was instead finality. That in turn forms the keystone of my proposal: to read finality back into the statute.

What that involves will vary with the nature of the proceeding. For some proceedings (which I call "single-faceted" special proceedings), a final order should be one that ends the proceeding. For others (which I call "multifaceted" special proceedings), a final order should be one that ends a distinct phase of the proceeding. For still others (which I call "policy based" special proceedings), a final order should be one that does not end either the proceeding or a discrete phase of the proceeding, but instead resolves a matter sufficiently important and separate from the merits to justify an interlocutory appeal.

After discussing the "special proceedings clause" of section 25- 1902, I will turn to the "summary application" and the "prevents a judgment" clauses. The "summary application" clause applies to postjudgment motions, although in contemporary practice the clause seems to have been absorbed by the "special proceedings" clause. The "prevents a judgment" clause has been used to fill various holes in the statutory scheme but suffers from an incurable malady: lack of meaning. The clause did not make any sense when it first appeared on the statute books in New York in 1851 and, unlike good wine, it has not improved with age. It is best ignored.

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II. CURRENT DEFINITIONS OF THE KEY STATUTORY TERMS

The key terms in section 25-1902 are "action," "special proceeding," and "substantial right." None of these terms are defined by statute.(fn17) They are instead defined by case law. The supreme court has not yet settled on a single definition of any of these terms, however. For example, the court has defined "action" in two ways. First, the court has said that an action is "a civil action"18-in other words, "a cause brought under the provisions of chapter 25 of our statutes."(fn19) Second, the court has said that an action "involves prosecuting the alleged rights between the parties and ends in a final judgment."(fn20) While the first definition encompasses only civil proceedings, the second encompasses both civil and criminal proceedings.

The court has defined "special proceeding" in three ways. First, the court has said that a special proceeding is any "civil statutory remedy which is not encompassed in chapter 25 of the Nebraska Revised Statutes."(fn21) Second, the court has said that a special proceeding is any "special statutory remedy which is not in itself an action."(fn22) Third, the court has said that "[w]here the law confers a right and authorizes a special application to a court to enforce the right, the proceeding is special, within the ordinary meaning of the term 'special proceeding.'"(fn23) The first two definitions seem to be variations on a common theme: special proceedings are civil proceedings that are not

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governed by the Code of Civil Procedure-in other words, special proceedings are civil proceedings that are not civil actions. The third definition seems to be much broader.

The court has defined "substantial right" in two ways. The first definition focuses on the importance of the right. The court has said that a substantial right is "an essential legal right, not a mere technical right."(fn24) The second definition focuses on the effect of the order. The court has said that "[a] substantial right is affected if the order 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 the appeal is taken."(fn25) The court sometimes uses both of these definitions together and sometimes uses only one of them.(fn26)

Perhaps no opinion has shaped these various definitions more than Justice Boslaugh's concurrence to a 1953 decision, Rehn v. Bingaman. (fn27) That case involved a claim against an estate. After the administrator of the estate denied the claim, the claimant appealed to the district court. The administrator subsequently moved for summary judgment, only to have the district court deny the motion. The administrator then appealed. The Nebraska Supreme Court treated the proceeding below as an action and held that the order denying the motion was not a final order because it failed to satisfy the requirements of the first clause of section 25-1902 (an order that affects a substantial right, determines the action, and prevents a judgment).

Justice...