Kowalewski v. Madison Cnty. Bd. of Comm'rs

310 Neb. 812

969 N.W.2d 392

Ronald and Linda KOWALEWSKI and Robert and Sally Schroeter, Appellants,

v.MADISON COUNTY BOARD OF COMMISSIONERS and Elkhorn Valley Sportsman Club, Appellees.

No. S-21-229.

Supreme Court of Nebraska.

Filed January 28, 2022

George H. Moyer, of Moyer, Moyer & Lafleur, Madison, for appellants.

Joseph M. Smith, Madison County Attorney, for appellee Madison County Board of Commissioners.

Michelle M. Schlecht, of Copple, Rockey, Schlecht & Mason, P.C., L.L.O., Norfolk, for appellee Elkhorn Valley Sportsman Club.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The Madison County Board of Commissioners (Board) approved the Elkhorn Valley Sportsman Club's application for a conditional use permit. Ronald and Linda Kowalewski and Robert and Sally Schroeter (collectively the Kowalewskis) appealed to the Madison County District Court. That court dismissed the appeal for failure to pay the docket fee. We agree and, accordingly, dismiss this appeal.

BACKGROUND

The Elkhorn Valley Sportsman Club applied for a conditional use permit to operate a trap and skeet shooting range. A public hearing was held, after which the Board granted the application on September 15, 2020.

The Kowalewskis appealed that decision to the district court on October 14, 2020. With that notice of appeal, the Kowalewskis also deposited with the county clerk for Madison County a $100 check as a cash bond for costs, as well as a check for $82 payable to the Madison County District Court intended to cover the filing fee. In fact, the filing fee to perfect an appeal from the Board to the district court was, at that time, $83.

Day 30, for purposes of filing an appeal, was October 15, 2020. According to the facts as found by the district court, on October 16 (or day 31), an additional $1 was paid to the clerk of the district court. The record does not reveal any request or attempt by the Kowalewskis asking the county clerk to apply the money from the bond to the filing fee.

On December 2, 2020, the Kowalewskis filed a petition detailing their allegations that the Board erred in granting the conditional use permit. The next day, December 3, the Board filed a motion to dismiss on the basis that the docket fee had not been timely paid. On December 4, the Elkhorn Valley Sportsman Club filed its own motion to dismiss on the same grounds.

The district court held a hearing on the motions to dismiss. During that hearing, the court was asked to take, and took, judicial notice of its own file, "particularly those notations from the clerk concerning the filing fee and the notice filed by counsel." Following the hearing, the district court dismissed the appeal for failure to pay the required docket fee. This appeal followed.

ASSIGNMENTS OF ERROR

The Kowalewskis assign that the district court erred in (1) sustaining the motions to dismiss, (2) dismissing the appeal, and (3) considering Elkhorn Valley Sportsman Club's motion to dismiss.

STANDARD OF REVIEW

A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law.¹ When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.²

ANALYSIS

The primary issue presented by this appeal is whether the district court erred in dismissing the Kowalewskis’ appeal from the decision of the Board for lack of appellate jurisdiction.

The Kowalewskis’ appeal is governed by Neb. Rev. Stat. §§ 23-114.01(5) (Reissue 2012), 25-1937 (Reissue 2016), and 25-2729 (Cum. Supp. 2020). Section 23-114.01(5) provides for a right of appeal from the decision of a county board of commissioners granting a conditional use permit, but that section provides no procedure to pursue an appeal.

State law covers that scenario in § 25-1937, which states that when "the Legislature enacts a law providing for an appeal without providing the procedure therefor, the procedure for appeal to the district court shall be the same as for appeals from the county court to the district court in civil actions." And § 25-2729 sets forth the procedure for perfecting an appeal from the county court to the district court sitting as an intermediary court of appeals.

Section 25-2729 specifically provides:

(1) In order to perfect an appeal from the county court, the appealing party shall within thirty days after the entry of the judgment or final order complained of:

(a) File with the clerk of the county court a notice of appeal; and

(b) Deposit with the clerk of the county court a docket fee of the district court for cases originally commenced in district court.

(2) Satisfaction of the requirements of subsection (1) of this section shall perfect the appeal and give the district court jurisdiction of the matter appealed.

We have repeatedly held that the failure to pay the docket fee is jurisdictional,³ and § 25-2729 states as much. The Kowalewskis do not take issue with this assertion. Instead, they argue that in addition to the $82 docket fee, the county clerk also had a $100 cash bond on deposit and the clerk should have applied $1 from that bond to the filing fee.

In support of this contention, the Kowalewskis direct us to Stigge v. Graves⁴ and In re Application of Olmer ( Olmer ).⁵ In Stigge , the appellant was appealing under the prior versions of §§ 25-1937 and 25-2729 from an order of a county superintendent. In Olmer , the appeal was from the denial by a county board of a conditional use permit.

In Olmer , we cited Stigge and noted that because § 25-2729 was intended to apply to appeals from a county court to a district court, it "cannot be applied literally" to an appeal from the county board of commissioners.⁶ The Kowalewskis argue that we should similarly not apply the docket fee requirement "literally" because the $100 bond meant that the full amount of the filing fee was on deposit with the clerk.

But the two scenarios are different. When Olmer and Stigge are read in context, we were simply noting the reality that under § 25-1937, appellants were to treat their appeals as if they were from the county court to the district court, when in reality it was an appeal from a county entity (in Olmer , the county board; in Stigge , the county superintendent) to the district court. We held as much because that interpretation made the most sense given the statutory scheme as a whole. What we were not saying in Olmer and Stigge was that payment of a docket fee, which we have held is jurisdictional, could be met through something other than strict compliance with that requirement.

At the time we decided Stigge , and later Olmer , we interpreted § 25-1937 to apply in those respective situations, and that interpretation has not evoked an amendment. As such, we will presume that the Legislature has acquiesced in the court's determination of the Legislature's intent.⁷

The Board directs us to State v. Moore ,⁸ which is factually similar, though unpublished. That case presented the Nebraska Court of Appeals with the issue of whether an appeal had been perfected despite nonpayment of the docket fee. There, the defendant failed to file either a docket fee or a poverty affidavit with his notice of appeal to the district court. The defendant had previously filed a $50 bond following his arrest, and that bond was still deposited with the court at the time of his appeal. He sought to have that bond retroactively applied to cover his filing fees. The Court of Appeals rejected this argument and dismissed the appeal for lack of jurisdiction.

Nebraska law is clear that in order to perfect an appeal, a notice of appeal and the docket fee (or application to proceed in forma pauperis in place of the docket fee) must be filed within the applicable period.⁹ We have found no case law suggesting that a prospective appellant can pay less than the entire docket fee or that the county clerk has any responsibility in this instance to use money from a bond to make up the difference for an underpaid docket fee. There is no merit to the Kowalewskis’ appeal.

CONCLUSION

The Kowalewskis’ appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED .

Cassel, J., concurring.

Like my concurring colleague, I agree with the court's opinion. I write separately to respectfully contend that my colleague's suggestion regarding an alternative approach to Neb. Rev. Stat. § 25-1937 (Reissue 2016) is neither literal nor practical.

Historically, both county courts and quasi-judicial tribunals were recognized as inferior to the district court.¹ Most appeals from county court still run to the district court.² While in recent years a small number of statutory appeal procedures have been provided from an executive branch official to a county court or county judge,³ the principal statute still recognizes the district court as the court empowered to entertain petitions in error where no right of appeal is provided.⁴ Certainly, when § 25-1937 was first adopted in 1963, no statute provided for county court involvement with any administrative or quasi-judicial appeal or petition in error. I find nothing in the text or legislative history of § 25-1937 or any of its subsequent amendments suggesting that it contemplates actual involvement by a county court.⁵

Section 25-1937 provides no literal assignment of any power or duty to the county court. Instead, it states that the "procedure for appeal to the district court shall be the same as for appeals from the county court to the district court in civil actions."⁶ It does not say that appeal documents shall be filed in the county court. The context of the phrase "the same as for" denotes an appellate procedure identical to appeals from the county court to the district court in civil actions—not an assignment of a function to the county court.⁷

Moreover, practical difficulties abound. The county court would have no records pertaining to the subject of the quasi-judicial proceeding. It would have no case...