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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for March 9, 2007

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Administrative License Revocation, Hearing, Continuances, Evidence
Administrative License Revocation, Failure to Submit, Acquittal in Criminal Trial
Administrative License Revocation, Hearing, Arresting Officer
Administrative License Revocation, Hearing, Proof
Appeal and Error, Mental Health Board, Adjudication, Final Order
Medical Malpractice, Jury Instructions, Third Party
Medical Malpractice, Proximate Causes

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Case Summaries

Administrative License Revocation, Continuances, Evidence

Back to ShortCuts

This case discusses a variety of issues raised in an Administrative License Revocation hearing where petitioner's license was suspended for one-year for refusal to submit to a chemical test.

Betterman v. Department of Motor Vehicles, 273 Neb. 178 (2007)

Supreme Court Headnotes

Administrative Law:

- [Final Orders:] (Appeal and Error.) A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

- [Judgments:] (Appeal and Error.) When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

- [Statutes:] (Appeal and Error.) The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

- [Motor Vehicles:]

{Licenses and Permits:} (Due Process.) Before a state may deprive a motorist of his or her driver's license, that state must provide a forum for the determination of the question and a meaningful hearing appropriate to the nature of the case. (Revocation:)((Police Officers and Sheriffs: Jurisdiction.)) In an administrative license revocation proceeding, the sworn report of the arresting officer must, at a minimum, contain the information specified in the applicable statute in order to confer jurisdiction. ((Proof.)) The Department of Motor Vehicles makes a prima facie case for license revocation once it establishes that the offer provided a sworn report containing the statutorily required recitations.

{Revocation:} (Blood, Breath, and Urine Tests: Due Process.) The administrative license revocation provisions pertaining to motorists who refuse to submit to chemical testing do not violate the due process or equal protection rights of those motorists by treating them differently than motorists who submit to, but fail, such testing.

- [Final Orders:] (Courts: Appeal and Error.) In reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals.

- [Appeal and Error.] Generally, in an appeal under the Administrative Procedure Act, an appellate court will not consider an issue on appeal that was not presented to or passed upon by the administrative agency.

- [Evidence:] (Judicial Notice: Appeal and Error.) The Administrative Procedure Act does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other means.

- [Due Process:] (Notice: Evidence.) In proceedings before an administrative agency or tribunal, procedural due process requires notice, identification of the accuser, factual basis for the accusation, reasonable time and opportunity to present evidence concerning the accusation, and a hearing before an impartial board.

- [Motions for New Trial:] (Evidence: Appeal and Error.) An administrative agency may rule on a motion for new trial on the ground of newly discovered evidence, if timely presented, although the cause is pending in an appellate court for review.

Jurisdiction:

- [Appeal and Error.] Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

Actions:

- [Jurisdiction.] Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

Judgments:

- [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 decisions made by the lower courts.

Statutes.

- To the extent that a conflict exists between statutes on the same subject, specific statutes control over general statutes.

Implied Consent:

- [Blood, Breath, and Urine Tests.] An arrested motorist refuses to submit to a chemical test when the motorist's conduct, demonstrated under the circumstances confronting the offer requesting the chemical test, justifies a reasonable person's belief that the motorist understood the offer's request for a test and manifested a refusal or unwillingness to submit to the requested test.

Police Officers and Sheriffs:

- [Words and Phrases.] An arresting offer is an offer who is present at the scene of an arrest for purposes of assisting in it.

Appeal and Error.

- Error without prejudice provides no ground for appellate relief. ••• To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party assigning the error.

Courts:

- [Jurisdiction:] (Appeal and Error.) In civil appeals, after an appeal to an appellate court has been perfected, a lower court is without jurisdiction to hear a case involving the same matter between the same parties.

Motions for New Trial:

- [Evidence: Proof.] In order to make a sufficient showing for a new trial on the ground of newly discovered evidence, the proof in support thereof must show that such evidence is now available which neither the litigant nor counsel could have discovered by the exercise of reasonable diligence and that the evidence is not merely cumulative, but competent, relevant, and material, and of such character as to reasonably justify a belief that its admission would bring about a different result if a new trial were granted.

Date Filed and Case No.: March 9, 2007. Nos. S-05-638, S-06-823.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar9/s05-638.pdf

Court Appealed From: District Court for Douglas County: Daniel Bryan, Jr., and Peter C. Bataillon, Judges.

Attorneys for the Appeal: W. Patrick Betterman, appellant, pro se. Jon Bruning and Edward G. Vierk for State of Nebraska Department of Motor Vehicles and Beverly Neth Director, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Summary: W. Patrick Betterman sought judicial review of an order by the director of the Department of Motor Vehicles (DMV) revoking his driving privileges for 1 year for refusing to submit to chemical testing of his breath for the unlawful presence of alcohol. The district court affirmed the director's decision, and a subsequent decision to refuse to vacate such orders, and Betterman appealed. While his appeal was pending in the Nebraska Supreme Court as case No. S-05-638, Betterman was acquitted in county court of the criminal refusal-to-submit charge. Betterman filed with the DMV motions to vacate the ALR and for a new ALR hearing because of newly discovered evidence that he had been acquitted of the criminal refusal charge.

The director denied Betterman's motions, and he appealed to the district court. Although an appeal was pending in case No. S-05-638, the district court concluded it had jurisdiction over Betterman's appeal. It affirmed the director's refusal to vacate the ALR. Betterman appealed to this court from the district court's order, which appeal was docketed as case No. S-06-823. The two cases have been consolidated for opinion by the Nebraska Supreme Court.

Was there error by the district court in finding that the arresting officer's (Schmaderer) testimony at the ALR hearing could cure the alleged deficiencies in the sworn ALR report?

The district court found that the sworn report lacked the statutorily required recitations, but found that the DMV established a prima facie case against Betterman by supplementing the report with testimony by Schmaderer at the hearing. There was no factual dispute as to what information was contained in the report. The issue was whether the sworn report was sufficient to support a prima facie case for license revocation. The Court concluded that the sworn report conveyed the information required by § 60-498.01(2). All the appropriate boxes were checked, and the proper sections were filled out. Betterman further claimed the report was insufficient to confer jurisdiction (1) because the report stated that Betterman was arrested "pursuant to Neb. Rev Stat. § 60-6,197," instead of the statutory phrase "as described in subsection (2) of section 60-6,197," and (2) because the report stated that "[t]he individual was directed to submit to a chemical test," instead of the statutory phrase "the person was requested to submit to the required test." The Court found these claims to be without merit. "The test is not whether the sworn report used the verbatim language of the statute, but whether the report conveyed the information required by the applicable statute."

Did the district court err in finding that Betterman had waived his objection regarding the employment status of the hearing officer? Was there was error by the district court in not taking judicial notice that the hearing officer was an employee of the DMV? Was there error by the district court in failing to either dismiss the proceedings or remand the case to the DMV for a determination of the hearing officer's employment status? Betterman claimed that the director violated Neb. Rev. Stat. § 84-913.04 (Reissue 1999) because the hearing officer was an employee of the DMV. Betterman's theory was that the director acted as an "advocate" for the department when responding to the motion to dismiss filed by Betterman with the DMV. On appeal to the district court, Betterman claimed he was denied his right to a hearing before an impartial board because the hearing officer was an employee of the DMV. The court rejected Betterman's argument because he had neither objected to the hearing officer nor presented any evidence on this issue in proceedings before the DMV. In his assignments of error before the Court, Betterman asserted that the district court erred in finding that he had waived any objection regarding the hearing officer, in not taking judicial notice that the hearing officer was a DMV employee, and in failing to either dismiss the proceedings or remand the case to the DMV for a determination of the hearing officer's employment status.

As Betterman did not object to the hearing officer's conducting the ALR hearing, and no evidence was presented on this issue at the hearing, the Court concluded that the district court did not err in refusing to consider the issue of the hearing officer's employment status, an issue not presented to or passed upon by the agency. The court did not abuse its discretion in declining to remand the matter to the agency for further proceedings. As the APA does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other means the Court found no error despite Betterman's arguments that case law suggested otherwise. The Court explicitly rejected Betterman's interpretation of those cases.

Did the district court err in finding that Betterman refused to submit to a chemical test of his breath in accordance with Neb. Rev. Stat. § 60-6,197 (Reissue 2004)? Reciting the facts in the record, the Court ruled that in light of Betterman's actions, a reasonable person could believe that Betterman understood the request for a test and manifested a refusal or unwillingness to submit. "Accordingly, we conclude that competent evidence supports the district court's finding that Betterman refused to submit to the chemical test."

Was the wrong standard of review applied by the district court? According to Betterman, the court applied a "' substantial evidence'" test instead of reviewing the case de novo on the record. The Court's review of the record indicated that the court applied the correct standard of review. The court used the phrase "substantial evidence" in response to Betterman's allegation that the director's order was "unsupported by competent, material, and substantial evidence." But before beginning its analysis, the court expressed the standard of review as "de novo," and at the end, the court declared that it had conducted a "de novo review" of the record and affirmed the director's decision. "Betterman's claim is without merit."

Did the district court err in finding that the evidence before the hearing officer established that the appearance of one of the arresting officers was not mandatory? Did the district court err in finding that no error resulted from the director's denial of Betterman's motion to dismiss? Three officers, Schmaderer, Kiley and Kyler, signed the sworn report in the area labeled "Signatures of Arresting Officer(s)." Schmaderer and Kyler appeared at the ALR hearing, but Kiley was unable to attend. Betterman's motion to dismiss based on Kiley's absence was overruled. The DMV asked for a continuance so Kiley could attend, and Betterman had no response. On review, the district court found that Schmaderer was best able to provide the hearing officer with information relating to the factors underlying the revocation and that, therefore, Kiley's appearance was not required to satisfy the agency's own regulation or to satisfy Betterman's right to due process. While Betterman asserted his constitutional rights to due process were violated by Kiley's absence, citing several cases from other jurisdictions to support this claim the Court found those cases were "inapposite," because none of them answered the questions involved in this appeal. "In those cases, the motorists had no opportunity to cross-examine any arresting officer; whereas, Betterman was able to cross-examine two of the three persons who signed the sworn report" they noted. The Court noted that the Nebraska Court of Appeals has already determined that an arresting officer is an officer who is present at the scene of the arrest for purposes of assisting in it. Here, both Schmaderer and Kiley assisted in arresting Betterman. For purposes of the ALR statute, both officers were "arresting" officers and they Court concluded that the due process requirements were satisfied in a refusal-to-submit ALR proceeding by the presence of an arresting officer who questioned the motorist, who observed the motorist refuse to submit to a chemical test, and who can provide the hearing officer with information relating to the factors underlying the revocation. Reviewing the record the Court found that the district court did not err in finding that the evidence before the hearing officer established that Kiley's appearance at the ALR hearing was not mandatory because Schmaderer could provide the hearing officer with information relating to the factors underlying the revocation. "Betterman's claim that his due process rights were violated by Kiley's absence is without merit."

Furthermore, the Court wrote that although the ALR hearing was held more than 20 days after Betterman requested it because of the continuances, the district court found that the time limit in § 60-498.01(6)(b) is directory, not mandatory, and that the director did not abuse her discretion by granting the continuances. The Court of Appeals has held that the timeframe for holding an ALR hearing is directory, not mandatory and the Court agreed with the Court of Appeals. The failure to hold a hearing within the time provided in § 60-498.01 (6)(b) does not invalidate the ALR proceedings unless the motorist can show that he or she was prejudiced by the delay. Here, Betterman has not shown prejudice. "The delay was minor in length, during which time, Betterman retained his privilege to drive."

Was there error by the district court in finding that the director did not abuse her discretion by granting two continuances? The DMV regulations provide that continuances may be granted upon good cause shown. The director found good cause to continue the hearing twice. Betterman's temporary license was extended through both continuances. Betterman moved to dismiss the proceedings because of the two continuances, the hearing officer denied his motion and on review, the district court found that the arresting officers' notices to the director provided too few facts for the director to have found good cause; however, the court found that no prejudice resulted from the denial of Betterman's motions to dismiss because no substantial injustice resulted to him. Assuming, for purposes of argument, that good cause was not shown and that the director erred in granting the continuances, the Court ruled that Betterman has not shown that such error prejudiced him. Betterman retained his driving privileges until the hearing was held and his argument was without merit.

Did the district court err in finding that Neb. Rev. Stat. §§ 60-498.01 and 60-498.02 (Reissue 2004) are constitutional? Betterman claimed that §§ 60-498.01 and 60-498.02 violate the Equal Protection and Due Process Clauses of the Nebraska and U.S. Constitutions arguing the statutory scheme impermissibly treats differently two classes of persons--i.e., motorists who submit to and fail a chemical test and motorists who refuse to submit to a chemical test. The Court has previously held that the ALR provisions pertaining to motorists who refuse to submit to chemical testing do not violate the due process or equal protection rights of those motorists by treating them differently than motorists who submit to, but fail, such testing. While Betterman also claimed that the ALR statutes violate the prohibition against special legislation in article III, § 18, of the Nebraska Constitution, he made no argument in support of his claim so they were not addressed. The Court concluded that the district court did not err in finding that the ALR statutes were constitutional.

Whether the district court erred in affirming the director's order refusing to vacate the ALR on the basis of newly discovered evidence? Because of his acquittal in the criminal case for failure to submit, Betterman claimed another ALR hearing was required because of newly discovered evidence, including evidence that he had been acquitted of the criminal refusal charge. "The issue presented" said the Court "is whether the fact that Betterman was acquitted of the criminal refusal-to-submit charge was newly discovered evidence necessitating a new ALR hearing." In cases of motorists who refuse to submit to chemical testing, the ALR statutory scheme does not operate to reinstate the motorist's administratively revoked driver's license if he or she is acquitted of the criminal refusal charge. The Court has previously stated that "although a motorist who refuses to submit to testing could subsequently be acquitted of the corresponding criminal charge, this fact is irrelevant to the ALR process." In the present case, even if evidence of Betterman's acquittal in the criminal case were to be admitted in a new ALR hearing, its admission would not affect the outcome. Therefore, the district court did not err in refusing to reverse the director's order.

Conclusion: The Court found the district court did not err in affrming both the director's order administratively revoking Betterman's driver's license and the director's refusal to vacate such order. AFFIRMED.

Administrative License Revocation, Failure to Submit, Acquittal in Criminal Trial

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This case discusses a variety of issues raised in an Administrative License Revocation hearing where petitioner's license was suspended for one-year for refusal to submit to a chemical test.

Betterman v. Department of Motor Vehicles, 273 Neb. 178 (2007)

Supreme Court Headnotes

Administrative Law:

- [Motor Vehicles:]

Jurisdiction:

- [Appeal and Error.] Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

Actions:

- [Jurisdiction.] Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

Judgments:

Statutes.

- To the extent that a conflict exists between statutes on the same subject, specific statutes control over general statutes.

Implied Consent:

Police Officers and Sheriffs:

- [Words and Phrases.] An arresting offer is an offer who is present at the scene of an arrest for purposes of assisting in it.

Appeal and Error.

Courts:

Motions for New Trial:

Date Filed and Case No.: March 9, 2007. Nos. S-05-638, S-06-823.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar9/s05-638.pdf

Court Appealed From: District Court for Douglas County: Daniel Bryan, Jr., and Peter C. Bataillon, Judges.

Attorneys for the Appeal: W. Patrick Betterman, appellant, pro se. Jon Bruning and Edward G. Vierk for State of Nebraska Department of Motor Vehicles and Beverly Neth Director, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Was there error by the district court in finding that the arresting officer's (Schmaderer) testimony at the ALR hearing could cure the alleged deficiencies in the sworn ALR report?

Administrative License Revocation, Hearing, Arresting Officers

Back to ShortCuts

This case discusses a variety of issues raised in an Administrative License Revocation hearing where petitioner's license was suspended for one-year for refusal to submit to a chemical test.

Betterman v. Department of Motor Vehicles, 273 Neb. 178 (2007)

Supreme Court Headnotes

Administrative Law:

- [Motor Vehicles:]

Jurisdiction:

- [Appeal and Error.] Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

Actions:

- [Jurisdiction.] Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

Judgments:

Statutes.

- To the extent that a conflict exists between statutes on the same subject, specific statutes control over general statutes.

Implied Consent:

Police Officers and Sheriffs:

- [Words and Phrases.] An arresting offer is an offer who is present at the scene of an arrest for purposes of assisting in it.

Appeal and Error.

Courts:

Motions for New Trial:

Date Filed and Case No.: March 9, 2007. Nos. S-05-638, S-06-823.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar9/s05-638.pdf

Court Appealed From: District Court for Douglas County: Daniel Bryan, Jr., and Peter C. Bataillon, Judges.

Attorneys for the Appeal: W. Patrick Betterman, appellant, pro se. Jon Bruning and Edward G. Vierk for State of Nebraska Department of Motor Vehicles and Beverly Neth Director, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Was there error by the district court in finding that the arresting officer's (Schmaderer) testimony at the ALR hearing could cure the alleged deficiencies in the sworn ALR report?

Administrative License Revocation, Hearing, Proof

Back to ShortCuts

This case discusses a variety of issues raised in an Administrative License Revocation hearing where petitioner's license was suspended for one-year for refusal to submit to a chemical test.

Betterman v. Department of Motor Vehicles, 273 Neb. 178 (2007)

Supreme Court Headnotes

Administrative Law:

- [Motor Vehicles:]

Jurisdiction:

- [Appeal and Error.] Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

Actions:

- [Jurisdiction.] Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

Judgments:

Statutes.

- To the extent that a conflict exists between statutes on the same subject, specific statutes control over general statutes.

Implied Consent:

Police Officers and Sheriffs:

- [Words and Phrases.] An arresting offer is an offer who is present at the scene of an arrest for purposes of assisting in it.

Appeal and Error.

Courts:

Motions for New Trial:

Date Filed and Case No.: March 9, 2007. Nos. S-05-638, S-06-823.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar9/s05-638.pdf

Court Appealed From: District Court for Douglas County: Daniel Bryan, Jr., and Peter C. Bataillon, Judges.

Attorneys for the Appeal: W. Patrick Betterman, appellant, pro se. Jon Bruning and Edward G. Vierk for State of Nebraska Department of Motor Vehicles and Beverly Neth Director, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Wright, J.

Was there error by the district court in finding that the arresting officer's (Schmaderer) testimony at the ALR hearing could cure the alleged deficiencies in the sworn ALR report?

Appeal and Error, Mental Health Board, Adjudication, Final Order

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The ability to appeal from an adjudication of a decision of a mental health board as a final order is discussed in this opinion.

In re Interest of Michael U., 73 Neb. 198 (2007)vfs

Supreme Court Headnotes

Mental Health:

- [Appeal and Error.] The district court reviews the determination of a mental health board de novo on the record. In reviewing a district court's judgment, appellate courts will affirm the district court's judgment unless the appellate court finds, as a matter of law, that the judgment is not supported by clear and convincing evidence.

Jurisdiction:

- [Final Orders:] (Appeal and Error.) For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken.

- [Appeal and Error.] When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

Final Orders:

- [Appeal and Error.] Neb. Rev. Stat. § 25-1902 (Reissue 1995) defines a final order as 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. ••• There are three types of final orders which may be reviewed on appeal under the provisions of Neb. Rev. Stat. § 25-1902 (Reissue 1995): (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right made in a special proceeding; and (3) an order affecting a substantial right made upon summary application in an action after judgment has been rendered.

Date Filed and Case No.: March 9, 2007. No. S-05-1525.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar9/s05-1525.pdf

Court Appealed From: Petition for further review from the Nebraska Court of Appeals, Irwin, Moore, and Cassel, Judges, on appeal thereto from the District Court for York County, Alan G. Gless, Judge.

Attorneys for the Appeal: Bruce E. Stephens for Michael U., appellant. C. Jo Petersen, Deputy Hamilton County Attorney, for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: McCormack, J.

Summary: Michael U. was determined by the Mental Health Board of the Fifth Judicial District (the Board) to be a mentally ill and dangerous person under Neb. Rev. Stat. § 71-901 et seq. (Cum. Supp. 2004 & Supp. 2005) of the Nebraska Mental Health Commitment Act. Michael had been convicted of first degree sexual assault on an individual less than 16 years of age in 1995 and was sentenced to 80 to 240 months' imprisonment. Michael served 10 years of that sentence and was scheduled to be released from his imprisonment on 05/03/05. On 04/28/05 the State filed a petition with the Board alleging that Michael was believed to be mentally ill and dangerous and alleging that neither voluntary hospitalization nor other treatment alternatives less restrictive of Michael's liberty than the Board-ordered treatment would suffice. The Board adjudicated and on 06/03/05, Michael appealed from that order of adjudication. The district court found no final order was in the record and dismissed the case and remanded it to the Board for further proceedings. Michael did not further appeal that dismissal of the appeal of the adjudication order. A second hearing was held, this time on Michael's disposition, and the Board issued an order of final disposition committing Michael to the Department of Health and Human Services for inpatient treatment. Michael appealed that dispositional decision. The district court engaged in a de novo review of the record and entered its judgment on appeal, affirming the Board's adjudication and disposition order.

Michael appealed that decision to the Court of Appeals, assigning, among other errors, the determination that evidence was sufficient to find that he was mentally ill and dangerous or that voluntary hospitalization or alternatives less restrictive than inpatient would not suffice to prevent the harm described in § 71-908. The Court of Appeals affirmed the decision of the district court. Relevant to the appeal, the Court of Appeals found that the order of adjudication entered in May 2005 was a final order from which an appeal may be taken and that Michael's appeal from that order had been dismissed for lack of a final order. The Court of Appeals further found that the first time the district court, which was sitting as an appellate court, considered issues relating to the adjudication hearing was in Michael's appeal from the order of disposition. Referencing the law-of-the-case doctrine, the Court of Appeals determined that Michael was not precluded from having that court consider those assignments of error arising out of the adjudication hearing, because the first time they were considered by an appellate court was in the appeal from the order of disposition. As to whether there was sufficient evidence to find that Michael was mentally ill and dangerous, the Court of Appeals affirmed. The Nebraska Supreme Court granted Michael's petition for further review of the Court of Appeals' decision.

Did the Nebraska Supreme Court have jurisdiction over the appeal of the adjudication order? Because Michael failed to appeal from the district court's determination that the order of adjudication was not a final order, the State argued that the Supreme Court did not have jurisdiction to address those issues relating to that order. The Court had not previously considered whether an order adjudicating an individual to be mentally ill and dangerous within the meaning of § 71-908 is a final, appealable order. The Court of Appeals, however, confronted this issue in In re Interest of Saville,10 Neb. App. 194, 626 N.W.2d 644 (2001), where they determined that the order adjudicating the appellant to be a mentally ill and dangerous person in that case was a final order. The Court of Appeals found that the order of adjudication was a special proceeding and that it affected a substantial right of the appellant. The Court agreed with the Court of Appeals' reasoning in In re Interest of Saville that the order of adjudication in that case was a final. Here, because the order of adjudication was a final order, the district court had jurisdiction over the matter in Michael's appeal of the adjudication order. But since Michael did not appeal the district court's finding that the order of adjudication was not a final order and the dismissal of his appeal of that order, the Court concluded that the Court of Appeals did not have jurisdiction to address those issues on appeal relating to the order of adjudication "and neither does this court."

When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court. Since the Court has determined that neither the Court of Appeals nor the Nebraska Supreme Court has jurisdiction, the Court did not address Michael's first assignment of error as to the sufficiency of the evidence that he was mentally ill and dangerous.

What about the disposition order? In his second and final assignment of error, Michael asserted that the Court of Appeals erred in finding there were not errors of law to which he objected that were improperly overruled. Although Michael assigned this error, he failed to argue it in his brief on appeal so the Court did not address it.

Conclusion: For those reasons the Nebraska Supreme Court reversed that portion of the Court of Appeals' opinion addressing that court's jurisdiction to consider those assignments of error relating to the adjudication order. Because the Court of Appeals did not have jurisdiction to address Michael's claims relating to the adjudication order, the Court vacated that portion of the judgment of the Court of Appeals addressing those claims. Because Michael had not assigned and argued any errors on petition for further review relating to the order of disposition, they affirmed without discussion the remainder of the Court of Appeals' decision. AFFIRMED IN PART, AND IN PART REVERSED AND VACATED.

Medical Malpractice, Jury Instructions, Third Party

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This opinion which grew from a medical malpractice case dealt with jury instructions regarding the proximate cause of an injury to an in uteri child, where the defendant alleged that the mother, (suffering from type I diabetes) was a third party who might have caused injury to the child.

Worth v. Kolbeck, 273 Neb. 163 (2007)

Supreme Court Headnotes

Jury Instructions:

- [Judgments:](Appeal and Error.) Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

- [Proof:] (Appeal and Error.) In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

- [Appeal and Error.] Jury instructions do not constitute prejudicial error if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence. ••• A court does not err in failing to give an instruction if the substance of the proposed instruction is contained in those instructions actually given.

- [Pleadings:] (Evidence.) A litigant is entitled to have the jury instructed upon only those theories of the case which are presented by the pleadings and which are supported by competent evidence.

Rules of Evidence:

- [Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

Judges:

- [Words and Phrases.] An abuse of discretion in a ruling on the admissibility of evidence occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

Proximate Cause:

- The concept of sole proximate cause rests on the notion that some third party or other independent event was the sole cause of the plaintiff's injuries.

- [Words and Phrases.] A defendant's conduct is a proximate cause of an event if the event would not have occurred but for that conduct, but it is not a proximate cause if the event would have occurred without that conduct.

Negligence:

- [Parent and Child.] In actions filed on behalf of a child, the negligence of a parent cannot be imputed to an infant who is injured through the carelessness of another party.

- [Proximate Cause.] If a third person is the sole proximate cause of an innocent plaintiff's injuries, the plaintiff's recovery from a defendant is barred because the plaintiff's injuries are not attributable to the defendant's negligence. (Jury Instructions.) A third person's negligence is not imputed to an innocent plaintiff by a sole proximate cause instruction. (Juries: Damages.) When the evidence is sufficient to raise a jury question as to whether a defendant's or a third person's negligence proximately caused or proximately contributed to a plaintiff's injuries, then a trial court must inform the jury that the plaintiff is entitled to recover damages, if any, from the defendant if the jury finds that the defendant is guilty of negligence which solely or in concurrence with a third person proximately caused or contributed to the plaintiff's injuries.

Malpractice:

- [Negligence.] In medical malpractice cases, it is not necessary that the independent event or cause be the result of negligence.

Appeal and Error.

- Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion.

- [Words and Phrases.] Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

Records:

- [Appeal and Error.] It is incumbent on the party appealing to present a record which supports the errors assigned, and absent such a record, the decision of the lower court will be affrmed.

Trial:

- [Witnesses:] (Rules of Evidence: Proof.) The burden to establish a declarant's unavailability is on the party seeking to introduce the evidence under Neb. Rev. Stat. § 27-804 (Reissue 1995), and the determination of whether a witness is unavailable to appear at trial and give testimony is within the discretion of the trial court.

- [Evidence:] (Appeal and Error.) To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about such evidence admitted or excluded. ••• Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.

Date Filed and Case No.: March 9, 2007. No. S-05-269.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar9/s05-269.pdf

Court Appealed From: Appeal from the District Court for Douglas County: Gary B. Randall, Judge.

Attorneys for the Appeal: Ronald J. Palagi and Joseph B. Muller for Sonja Worth, as mother and next friend of Austin Worth, a minor, appellant and cross-appellee. Patrick G. Vipond and Denise M. Destache for Terrence J. Kolbeck, M.D., appellee and cross-appellant.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican, C.J.

Summary: In this medical malpractice action brought by Sonja Worth on behalf of her son, Austin Worth, against Terrence J. Kolbeck, M.D. Sonja alleged that Kolbeck's negligence caused severe brain injuries to Austin shortly before his birth. The bill of exceptions does not include most of the trial. It is limited to the arguments regarding the admissibility and the reading into evidence of deposition testimony from Sonja's medical expert, Dr. Stephen Glass; two jury instruction conferences; and the testimony of an expert document examiner, Marlin Rauscher. Sonja alleged that she has had controlled, Type I diabetes mellitus since 1992. On 04/19/97 she was 33 weeks pregnant with Austin and was admitted to a hospital emergency room suffering from diabetic ketoacidosis (the presence of an excessive amount of ketone bodies [acids] in the tissues and body fluids.) Austin was diagnosed with hypoxic-ischemic encephalopathy, directly related to Sonja's ketoacidosis. This diagnosis referred to a perinatal brain injury due to lack of oxygen.

In her petition, Sonja alleged that Kolbeck was negligent in failing to (1) order an immediate ultrasound on April 9, (2) recognize Austin's fetal distress and arrange for an emergency cesarean section on April 9, and (3) promptly respond to the ultrasound on April 10. In his answer, Kolbeck denied that he was negligent or had caused Austin's injuries and that he had met the standard of care for physicians in his specialty in Omaha or similar communities. He also affrmatively alleged that Sonja had been negligent in caring for Sonja's illness, which had proximately caused Austin's condition and damages.

Sometime in early 2000, Sonja's counsel contacted Glass, a pediatric neurologist, to review Austin's case and in December of 2000, Kolbeck's counsel conducted a discovery deposition of Glass. Because at trial Glass was unable to attend Kolbeck moved to have Glass' deposition read into evidence over Sonja's counsel's objection. The court overruled the objection. The case was tried to a jury, which returned a verdict in favor of Kolbeck. Sonja appealed to the Nebraska Supreme Court.

Did the trial court commit error in giving a jury instruction regarding proximate cause? Sonja contended that the court's giving of a supplemental jury instruction (No. 6) was reversible error as a matter of law because the instruction (1) implied that there could be only a single proximate cause of Austin's injuries and damages; (2) distracted the jurors from a direct assessment of Kolbeck's negligence and was intended to put Sonja's acts or omissions before the jury as an intervening cause; (3) misstated Sonja's burden of proof; (4) directly conficted with another supplemental instruction (No. 7) by imputing Sonja's negligence to Austin; and (5) improperly emphasized Kolbeck's defense by negating language in other instructions. Sonja did not contend that the evidence was insuffcient to support a sole proximate cause instruction.

Kolbeck contended that the record was insufficient to review any of Sonja's assigned errors. Kolbeck also contends that because Sonja's claim was dismissed, she was a nonparty to the action and he was entitled to the "conduct of nonparty third person" pattern instruction in NJI2d Civ. 3.44 from which No. 6 followed. The Court concluded that, taken as a whole, the jury instructions were suffcient to ensure that Sonja's negligence did not operate to prevent Austin's recovery of damages if the jury concluded that Kolbeck's negligence was a concurring or contributing proximate cause of Austin's injuries.

Did the district court commit plain error in failing to instruct the jurors, sua sponte, that they could infer that an altered medical record document was unfavorable to Kolbeck? The Court found that here, the record was insufficient to review this assignment error under plain error. "Sonja's argument requires a factual inquiry into this record, which is wholly insuffcient for this court to evaluate whether the absence of an adverse inference instruction prejudiced Sonja's case or led to a miscarriage of justice."

Did the district court improperly allow portions of a deposition to be read into evidence, arguing that the hearsay exception under § 27~804(2)(a) was not intended to allow for the admission of a discovery deposition? As with Sonja's second assignment of error, the Court found the record insufficient to review whether the admission of the deposition testimony of Glass required a new trial. Even if the admission was error, the Court had no way of knowing from this record whether it was harmless error and could not conclude that the district court erred.

Conclusion: The Court concluded that the district court did not err in instructing the jury on Kolbeck's theory that Sonja was the sole proximate cause of Austin's in utero injuries. Taken together, the instructions were sufficient to ensure that Austin would recover from Kolbeck if the jury concluded that Kolbeck's conduct was a contributing or concurring proximate cause and that Sonja's concurring or contributing negligence would not prevent Austin's recovery.

Medical Malpractice, Proximate Causes

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Worth v. Kolbeck, 273 Neb. 163 (2007)

Supreme Court Headnotes

Jury Instructions:

- [Appeal and Error.] Jury instructions do not constitute prejudicial error if, taken as a who