Weatherly v. Cochran

301 Neb. 426

918 N.W.2d 868

Michelle WEATHERLY, appellee,

v.Luke J. COCHRAN, appellant.

No. S-17-1329

Supreme Court of Nebraska.

Filed October 26, 2018.

Diana J. Vogt, of Sherrets, Bruno & Vogt, L.L.C., Omaha, for appellant.

William H. Selde, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., Omaha, for appellee.

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

Freudenberg, J.

NATURE OF CASE

Luke J. Cochran appeals the issuance of a harassment protection order and denial of a motion to vacate the ex parte harassment protection order against him. During a show cause hearing, the district court stated that because Cochran appeared through counsel rather than appearing in person, the ex parte harassment protection order would be automatically extended for 1 year. However, the court proceeded to allow the petitioner, Michelle Weatherly, to testify and allowed Cochran’s counsel to cross-examine Weatherly. After the hearing, the district court found that Weatherly had presented evidence sufficient to extend the harassment protection order for 1 year, to expire on October 5, 2018. The central issues raised on appeal are (1) whether Weatherly was entitled to a harassment protection order under the terms of Neb. Rev. Stat. § 28-311.09 (Reissue 2016) and (2) whether a respondent against whom a harassment protection order is sought must appear in person rather than through counsel. We find that the appeal is moot, but apply the public interest exception to mootness to address the second inquiry.

FACTS

Weatherly and Cochran were involved as partners in a roofing contractor business. Weatherly and Cochran worked together in a building owned by Cochran and leased to the business.

In July 2017, Cochran gave notice of his intent to resign his position at the roofing contractor business. Believing that Cochran would potentially depart negatively, Weatherly had an off-duty officer present for the removal of his belongings on his final day of employment.

When Cochran arrived at the office to remove his belongings, he met with Weatherly in her office. During this meeting, Cochran allegedly made threatening statements. Specifically, Cochran purportedly stated, " ‘Do you recall what happened to ... Roofing? It’s rumored that that was a business deal gone bad and that person was murdered because of that. I hope that doesn't happen to us.’ " Although Weatherly noted that the environment was hostile throughout the rest of the day, Weatherly continued to talk to Cochran.

Later, after Cochran left the building, the off-duty officer suggested that Weatherly should go into Cochran’s office to retrieve company documents and property before the locksmiths came to change the locks for the building. Upon entering Cochran’s office, Weatherly and the officer found a handgun in Cochran’s desk drawer. Weatherly subsequently told the off-duty officer that Cochran was a convicted felon, and the officer took possession of the weapon to ensure that an on-duty officer could seize it.

While Weatherly was waiting for the arrival of the on-duty officer, Cochran returned and attempted to enter the building.

When Cochran was stopped from entering the building by the off-duty officer, Weatherly alleged that Cochran made "a threatening gesture" that she interpreted to insinuate that she was " ‘going to get it.’ " The actual gesture was not further described in the record.

On August 2, 2017, Weatherly filled out the application for the protection order. However, the application was not filed with the court until October 5. An ex parte harassment protection order was granted in favor of Weatherly, and a show cause hearing was requested by Cochran and held December 7, 2017.

At the show cause hearing, Weatherly and her counsel were in attendance, but Cochran appeared only through his attorney. Weatherly’s testimony asserting and describing the aforementioned events was the only evidence received at the hearing. Cochran’s counsel did not attempt to cross-examine Weatherly regarding her recitation of the relevant events on Cochran’s final day with the company, but did question her as to her motivation for filing the protection order.

Cochran’s counsel contended that a demand letter sent to Weatherly by Cochran’s attorney regarding a civil lawsuit between Weatherly and Cochran was a motivation for Weatherly to file the protection order on October 5, 2017, more than 2 months after the events at issue. The letter and authenticating affidavit were marked as exhibit 1 and offered by Cochran. The letter was objected to by Weatherly on relevancy grounds. The district court sustained the objection and did not further allow this line of cross-examination. The court noted that Cochran’s counsel was not entitled to go over the parties' history and the potential relevance of the demand letter because of Cochran’s failure to appear at the hearing. The ex parte petition and affidavit were never offered at the show cause hearing.

The court made multiple statements throughout the hearing indicating that Cochran was required to appear in person to challenge the issuance of the harassment protection order and was not allowed to appear through counsel. But, at the conclusion of the hearing, the district court ruled that, based exclusively on Weatherly’s testimony of the events, the protection order would remain in effect for 1 year. Cochran appeals.

ASSIGNMENTS OF ERROR

Cochran assigns that the district court erred in (1) granting the protection order on the evidence presented, (2) finding that Cochran was required to appear in court in person rather than through counsel to contest the issuance of the protection order, and (3) refusing to admit exhibit 1 into evidence.

STANDARD OF REVIEW

Mootness does not prevent appellate jurisdiction.¹ But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, we have reviewed mootness determinations under the same standard of review as other jurisdictional questions.² 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.³

Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.⁴

ANALYSIS

Cochran asserts on appeal that the district court erred in finding that there was sufficient evidence to continue the harassment protection order against him for 1 year. Weatherly argues that the evidence was sufficient and that, in any event, the harassment protection order was appropriately granted as a matter of law under § 28-311.09, because Cochran failed to appear at the hearing in person. Cochran counters that "appear" under Nebraska’s harassment protection order statutes permits an appearance through counsel.

MOOTNESS

Before reaching the legal issues presented, the issue we must first confront is whether this appeal has become moot in the pendency of its litigation and appeal. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.⁵ An actual case or controversy is necessary for the exercise of judicial power.⁶

A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.⁷ Usually, in the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory.⁸ Therefore, as a general rule, a moot case is subject to summary dismissal.⁹

In the case on appeal, the harassment protection order expired on October 5, 2018. At this point in time, no harassment protection order exists against Cochran. We have held in other protection order cases that once an order has expired, the respondent is no longer affected by it.¹⁰ We have also previously noted that because of the 1-year timeframes for protection orders, such cases will almost always be moot by the time the appeal is heard.¹¹ Similarly, this case is moot because the parties no longer have a cognizable interest in the outcome of the determination of whether the court erred in extending the harassment protection order under the terms of § 28-311.09.

Nonetheless, under certain circumstances, an appellate court may entertain the issues presented by a moot case when the claims presented involve a matter of great public interest or when other rights or liabilities may be affected by the case’s determination.¹² In determining whether the public interest exception should be invoked, the court considers the public or private nature of the question presented, the desirability of an authoritative adjudication for future guidance of public officials, and the likelihood of future recurrence of the same or a similar problem.¹³

Although the appeal is moot, we choose to address the issue of whether a respondent against whom an ex parte harassment protection order has been issued must appear in person at a show cause hearing to challenge the issuance of the order, or can instead waive his or her appearance in person and appear through counsel at such hearing. Authoritative guidance on the matter is desirable because it is likely to reoccur in the future. This question is also public in nature, as it is not specific to the parties of this case.

Rather, the interpretation of this issue may affect any respondent in a harassment protection order hearing.

In an effort to provide direction to the public, we address the "appearance" issue on appeal. Interpreting the meaning of "appear" under § 28-311.09 demands an authoritative adjudication for future guidance of public officials.¹⁴ However, we do not find it...