Great Northern Ins. Co. v. Transit Auth. of Omaha , 305 Neb. 609 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/29/2020 12:07 AM CDT
    - 609 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
    Cite as 
    305 Neb. 609
    Great Northern Insurance Company, an Indiana
    corporation, appellee, v. Transit Authority of
    the City of Omaha, a governmental subdivision
    of the State of Nebraska individually and
    doing business as Metro Area Transit,
    appellant, and Jessica Johnson,
    an individual, appellee.
    ___ N.W.2d ___
    Filed April 17, 2020.    No. S-19-913.
    1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
    that does not involve a factual dispute is determined by an appellate
    court as a matter of law, which requires the appellate court to reach a
    conclusion independent of the lower court’s decision.
    2. Statutes: Time. Statutes covering substantive matters in effect at the
    time of the transaction or event govern, not later enacted statutes. But
    where there has been an amendment to a statute which was a procedural
    change and not a substantive change, upon the effective date of the
    amendment, it is binding upon a tribunal.
    3. ____: ____. Procedural amendments to statutes are ordinarily applicable
    to pending cases, while substantive amendments are not.
    4. Statutes: Words and Phrases. A substantive amendment is one that
    creates a right or remedy that did not previously exist and which, but for
    the creation of the substantive right, would not entitle one to recover. A
    procedural amendment, on the other hand, simply changes the method
    by which an already existing right is exercised.
    Petition for further review from the Court of Appeals, on
    appeal thereto from the District Court for Douglas County,
    Thomas A. Otepka, Judge. Judgment of Court of Appeals
    reversed and remanded for further proceedings.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
    Cite as 
    305 Neb. 609
    Robert M. Schartz and Timothy Mulliner, of Abrahams,
    Kaslow & Cassman, L.L.P., for appellant.
    Matthew D. Hammes, of Locher, Pavelka, Dostal, Braddy &
    Hammes, and Cheri MacArthur, of Cozen O’Connor, for appel-
    lee Great Northern Insurance Company.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    The Transit Authority of the City of Omaha, doing business
    as Metro Area Transit (Metro), moved for summary judg-
    ment based on sovereign immunity in a suit brought by Great
    Northern Insurance Company (Great Northern). The district
    court denied this motion, and Metro appealed. The Nebraska
    Court of Appeals dismissed the appeal for lack of jurisdiction,
    explaining that the denial of a motion for summary judgment
    is interlocutory and not a final order. However, after the order
    denying summary judgment was entered but before the 30-day
    period to file a timely appeal expired and before Metro filed
    its notice of appeal, Neb. Rev. Stat. § 25-1902 (Reissue 2016)
    was amended to add denials of summary judgment based on
    a claim of sovereign immunity to the definition of a final
    order. 1 Metro petitioned for further review, and we granted
    the petition.
    BACKGROUND
    The underlying claim, not at issue here, is a subrogation
    action in which Great Northern is seeking compensation from
    Metro under the Political Subdivisions Tort Claims Act. 2 In the
    proceedings below, Metro challenged Great Northern’s compli-
    ance with the notice requirements of the Political Subdivisions
    Tort Claims Act.
    1
    See 2019 Neb. Laws, L.B. 179, § 1.
    2
    Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
    Cite as 
    305 Neb. 609
    Metro moved for summary judgment based on sovereign
    immunity. Metro claimed that Great Northern did not properly
    comply with the Political Subdivisions Tort Claims Act and
    that the failure to comply with the notice requirements meant
    that Metro never waived sovereign immunity. On August 23,
    2019, the district court denied Metro’s motion on the ground
    that Metro was estopped from asserting immunity after Metro’s
    outside counsel responded to Great Northern’s notice. On
    September 3, Metro moved to reconsider. The motion was
    denied, and Metro filed an appeal on September 19. Metro’s
    notice of appeal stated that it was appealing the original order
    denying summary judgment. On October 11, the Court of
    Appeals summarily dismissed the appeal, explaining that a
    denial of a motion for summary judgment is interlocutory and
    not a final order pursuant to § 25-1902.
    However, § 25-1902 was amended effective September 1,
    2019. 3 This change added language specifying that an order
    denying summary judgment when the motion is based on sov-
    ereign immunity is a final order. The relevant sections were
    amended to read:
    (1) The following are final orders which may be
    vacated, modified, or reversed:
    ....
    (d) An order denying a motion for summary judgment
    when such motion is based on the assertion of sovereign
    immunity or the immunity of a government official.
    (2) An order under subdivision (1)(d) of this section
    may be appealed pursuant to section 25-1912 within thirty
    days after the entry of such order or within thirty days
    after the entry of judgment. 4
    Because the change to § 25-1902 took effect before the appeal
    was filed, but after the order itself was issued, the question pre-
    sented is which version of the final order statute should apply.
    3
    Neb. Rev. Stat. § 25-1902 (Supp. 2019).
    4
    See
    id. - 612
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
    Cite as 
    305 Neb. 609
    ASSIGNMENT OF ERROR
    Metro argues that the Court of Appeals erred by failing to
    recognize that the denial of Metro’s motion for summary judg-
    ment asserting sovereign immunity was a final order under
    § 25-1902 as of September 1, 2019.
    STANDARD OF REVIEW
    [1] A jurisdictional question that does not involve a factual
    dispute is determined by an appellate court as a matter of law,
    which requires the appellate court to reach a conclusion inde-
    pendent of the lower court’s decision. 5
    ANALYSIS
    The sole issue in this case is whether the Court of Appeals
    had jurisdiction when the notice of appeal was filed on
    September 19, 2019. We find that the Court of Appeals did
    have jurisdiction when the notice of appeal was filed because
    the amended version of § 25-1902 had taken effect.
    In order to vest the court with appellate jurisdiction, the
    party seeking the appeal must comply with several statu-
    tory requirements. Section 25-1902 provides the definition
    of what is a final order, and Neb. Rev. Stat § 25-1912 (Cum.
    Supp. 2018) provides the methodology for how an appeal is
    perfected. In interpreting the requirements of § 25-1912, we
    have said that “[s]ection 25-1912 sets forth the only method
    by which a party may invoke the jurisdiction of an appellate
    court . . . .” 6 There are three steps required to invest the court
    with jurisdiction: (1) there must be a judgment or final order
    entered by the court from which the appeal is taken, 7 (2) a
    party must timely file a notice of appeal, 8 and (3) the appealing
    5
    Green v. Seiffert, 
    304 Neb. 212
    , 
    933 N.W.2d 590
    (2019).
    6
    State v. Schmailzl, 
    248 Neb. 314
    , 316, 
    534 N.W.2d 743
    , 745 (1995).
    7
    See, § 25-1902 (Supp. 2019); Fritsch v. Hilton Land & Cattle Co., 
    245 Neb. 469
    , 
    513 N.W.2d 534
    (1994).
    8
    See, § 25-1912; Green v. Seiffert, supra note 5.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
    Cite as 
    305 Neb. 609
    party must pay the docket fee to the clerk of the court or file
    in forma pauperis. 9
    [2,3] The order entered on August 23, 2019, did not meet the
    definition of a final order when entered. However, the amend-
    ment to § 25-1902 took effect before Metro’s 30-day window
    to appeal had expired. It is a well-established principle that
    statutes covering substantive matters in effect at the time of
    the transaction or event govern, not later enacted statutes. 10
    But where there has been an amendment to a statute which
    was a procedural change and not a substantive change, upon
    the effective date of the amendment, it is binding upon a tri-
    bunal. 11 Thus, procedural amendments to statutes are ordinarily
    applicable to pending cases, while substantive amendments
    are not. 12
    [4] We have explained that a substantive amendment is one
    that creates a right or remedy that did not previously exist and
    which, but for the creation of the substantive right, would not
    entitle one to recover. 13 A procedural amendment, on the other
    hand, simply changes the method by which an already existing
    right is exercised. 14
    At issue in the larger case is the substantive question of
    whether Metro waived sovereign immunity under the Political
    Subdivisions Tort Claims Act. The change to § 25-1902 does
    not affect the substance of that claim. Rather, it changes the
    procedure governing when Metro can request review. By mak-
    ing the denial of a claim of sovereign immunity a final order,
    the amendment allows a sovereign to file an interlocutory
    appeal within 30 days of the order instead of waiting until the
    9
    See § 25-1912.
    10
    Dragon v. Cheesecake Factory, 
    300 Neb. 548
    , 
    915 N.W.2d 418
    (2018).
    11
    Id. 12 Id.
    13
    Id. 14 Id.
                                          - 614 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA
    Cite as 
    305 Neb. 609
    final judgment to seek review of the lower court’s decision on
    sovereign immunity. We hold that the amendment to § 25-1902
    which took effect September 1, 2019, was a procedural change
    that was binding upon its effective date.
    Because Metro filed its notice of appeal after the effective
    date of the amendment to § 25-1902, the amendment governed
    whether that notice of appeal succeeded in divesting the lower
    court of jurisdiction and in bringing the matter of the lower
    court’s ruling on sovereign immunity to the Court of Appeals.
    Subsection (2) of the amended version of § 25-1902 provides
    that any order that meets the definition under subsection (1)
    (d) may be appealed pursuant to § 25-1912. The order subject
    to Metro’s notice of appeal meets that definition. Thus, the
    amended language of § 25-1902 allowed for Metro to file a
    notice of appeal based on the August 23, 2019, order. 15
    The amended change to § 25-1902 allows for the appeal
    from an order denying summary judgment based on a claim
    of sovereign immunity as long as the appealing party com-
    plied with the requirements of § 25-1912. Metro has otherwise
    complied with the requirements for perfecting an appeal under
    § 25-1912. As such, the Court of Appeals erred in denying the
    appeal for a lack of jurisdiction.
    CONCLUSION
    We find that the Court of Appeals had jurisdiction pursuant
    to § 25-1902 (Supp. 2019), which was effective September 1,
    2019. We reverse the dismissal of the appeal by the Court of
    Appeals and remand the cause for further proceedings.
    Reversed and remanded for
    further proceedings.
    15
    See § 25-1902(2) (Supp. 2019).