By: Elizabeth Ryan Cano
Nebraska’s appellate courts have taken an increasingly narrow view of their own jurisdiction. The Nebraska Supreme Court has all but eliminated the collateral-order doctrine. See, e.g., E.D. v. Bellevue Pub. Sch. Dist., 299 Neb. 621 (2018) (collateral-order doctrine does not authorize an interlocutory appeal of a denial of sovereign immunity). Appellate courts have frequently found that district courts have abused their discretion by certifying orders for appeal under Neb. Rev. Stat. § 25-1315(1). See, e.g., Rafert v. Meyer, 298 Neb. 461, 469 (2017). These decisions have made it clear that, in Nebraska, the general rule is that only a “final order” under Neb. Rev. Stat. § 25-1902 can be appealed. Now, in Fidler v. Life Care Centers of Am., Inc., 301 Neb. 724 (2018), the Nebraska Supreme Court has further restricted the scope of appellate jurisdiction by overruling precedent to narrow what counts as a “final order.”
Fidler involved a health-malpractice suit filed by Virginia and Keith Fidler alleging that Virginia received negligent care while she resided at a skilled-nursing facility in Elkhorn, Nebraska, owned by Life Care Centers of Am., Inc. (“Life Care Centers”). The Fidlers filed their complaint in September 2015 in Douglas County District Court, which has adopted local rules requiring parties to file scheduling orders in all civil cases. By January 2017, the parties had filed no scheduling order. As a result, the court administrator filed a notice alerting the parties that if no scheduling order were filed within 30 days, the case would be dismissed. In March 2017, the case was administratively dismissed.
Four months later, the Fidlers moved the district court to reinstate the case. The Fidlers’ attorney submitted an affidavit stating that the parties had been actively prosecuting the case and that the failure to file the scheduling order was due to administrative error. The district court entered an order reinstating the action. Importantly, this reinstatement was dispositive of whether the Fidlers could pursue their claim at all. When the case was dismissed, the statute of limitations had run. And Nebraska’s savings statute does not apply to cases dismissed because of inaction by the plaintiff. Neb. Rev. Stat. § 25-201.01. As a result, any new suit filed by the Fidlers would have been time barred.
After the district court reinstated the lawsuit, Life Care Centers appealed. The appeal was moved to the docket of the Nebraska Supreme Court, which questioned its own jurisdiction.
In response, Life Care Centers relied on the Nebraska Supreme Court’s decision in Jarrett v. Eichler, 244 Neb. 310 (1993). In Jarrett, the Court had reviewed an order of reinstatement under similar circumstances. Expressly addressing the issue of jurisdiction, the Jarrett court concluded that reinstatement did affect a substantial right of the defendant because, absent the reinstatement, the defendant could have raised a statute of limitations defense in any future action. Despite recognizing that Jarrett applied to the facts before it, and that there were at least five instances of Nebraska appellate courts reviewing orders of reinstatement, the Fidler court overruled Jarrett and determined that it lacked appellate jurisdiction because the order of reinstatement was not a final order under Neb. Rev. Stat. § 25-1902, which applies only to decisions that affect the “substantial rights” of the appealing party.
The Fidler court explained that Jarrett was based on erroneous reasoning about what counts as “substantial right.” According to the narrow view of “substantial right” articulated in Fidler, the only thing that counts as a substantial right is the ability of a party to raise a claim or defense available to the defendant before the order from which the party appeals. The Jarrett Court had erred by focusing on the fact that, absent the reinstatement, the defendant could have raised the statute of limitations in any future lawsuit. Instead, the Fidler court explained that the analysis must focus on what defenses would have been available to the defendant before the original dismissal. Because Life Care Centers would not have been entitled to raise a statute of limitations defense in the original action, the reinstatement did not interfere with Life Care Centers’ ability to raise the defense.
The Fidler court also rejected the Life Care Centers’ alternative argument that the reinstatement affected its substantial rights by giving the Fidlers an opportunity to retain an expert. Life Care Centers argued that, before the original case had been dismissed, the Fidlers had no expert and, therefore, Life Care Centers would have been entitled to summary judgment. However, after reinstatement, the Fidlers had retained an expert and Life Care Centers could no longer move for summary judgment on that ground. The Fidler court rejected this argument, reasoning that even though it was true the Fidlers had no expert, if the case had not been administratively dismissed, they could have retained an expert, even without the reinstatement. In other words, the reinstatement was not, itself, what enabled them to overcome Life Care Centers’ summary-judgment motion.
Ultimately, the Fidler court concluded that a reinstatement requiring a defendant to move forward with litigation does not affect a substantial right. Being required to go through the ordinary burdens of litigation (even if those burdens could have been avoided absent the reinstatement) does not count as having a substantial right affected. This analysis reaffirms that Nebraska’s appellate courts are serious about limiting their jurisdiction. If a decision depriving a defendant of a dismissal of a lawsuit does not qualify as a final order, then few things short of an order fully resolving claims on the merits probably will.