Barrios v. Commissioner of Labor , 25 Neb. Ct. App. 835 ( 2018 )


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    BARRIOS v. COMMISSIONER OF LABOR
    Cite as 
    25 Neb. Ct. App. 835
    Walter A. Barrios, appellee, v. Commissioner of Labor
    of the Nebraska Department of Labor, appellant,
    and Custom R ental Services, I nc., appellee.
    ___ N.W.2d ___
    Filed April 24, 2018.    No. A-17-635.
    1.	 Administrative Law: Judgments: 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.
    2.	 ____: ____: ____. 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 com-
    petent evidence, and is neither arbitrary, capricious, nor unreasonable.
    3.	 Judgments: Appeal and Error. Whether a decision conforms to law
    is by definition a question of law, in connection with which an appel-
    late court reaches a conclusion independent of that reached by the
    lower court.
    4.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
    presented for review, it is the duty of an appellate court to determine
    whether it has jurisdiction over the matter before it.
    5.	 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; conversely, an
    appellate court is without jurisdiction to entertain appeals from non­
    final orders.
    6.	 Final Orders: Appeal and Error. If an order is interlocutory, imme-
    diate appeal from the order is disallowed so that courts may avoid
    piecemeal review, chaos in trial procedure, and a succession of appeals
    granted in the same case to secure advisory opinions to govern further
    actions of the trial court.
    7.	 Administrative Law: Appeal and Error. Under the Administrative
    Procedure Act, the district court sits as an intermediate appellate court.
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    8.	 Courts: Final Orders: Appeal and Error. When a district court, sitting
    as an intermediate appellate court, enters an order that affects a substan-
    tial right, that order is final for purposes of appeal if its judgment can be
    executed without any further action by the district court.
    9.	 ____: ____: ____. Where the district court, sitting as an intermediate
    appellate court, reverses a judgment in favor of a party, and remands
    the matter for further proceedings, that party’s substantial right has
    been affected.
    10.	 Estoppel: Words and Phrases. Equitable estoppel is a bar which pre-
    cludes a party from denying or asserting anything to the contrary of
    those matters established as the truth by his or her own deeds, acts, or
    representations.
    11.	 Equity: Estoppel. The doctrine of equitable estoppel applies where,
    as a result of conduct of a party upon which another person has in
    good faith relied to his or her detriment, the acting party is absolutely
    precluded, both at law and in equity, from asserting rights which might
    have otherwise existed.
    12.	 Estoppel. The elements of equitable estoppel are, as to the party
    estopped: (1) conduct which amounts to a false representation or con-
    cealment of material facts, or at least which is calculated to convey
    the impression that the facts are otherwise than, and inconsistent with,
    those which the party subsequently attempts to assert; (2) the intention,
    or at least the expectation, that such conduct shall be acted upon by, or
    influence, the other party or other persons; and (3) knowledge, actual or
    constructive, of the real facts.
    13.	 ____. The elements of equitable estoppel are, as to the party claiming
    estoppel: (1) lack of knowledge and of the means of knowledge of the
    truth as to the facts in question; (2) reliance, in good faith, upon the
    conduct or statements of the party to be estopped; and (3) action or
    inaction based thereon of such a character as to change the position or
    status of the party claiming the estoppel, to his or her injury, detriment,
    or prejudice.
    14.	 Administrative Law: Courts: Appeal and Error. Under the
    Administrative Procedure Act, the district court has the discretion to
    remand a matter for resolution of issues that were not raised before
    the agency if the court determines that the interest of justice would
    be served by the resolution of any other issue not raised before
    the agency.
    15.	 Rules of the Supreme Court: Administrative Law: Corporations:
    Attorneys at Law. Under the Nebraska Supreme Court rules, a corpo-
    rate officer who is not a lawyer is not prohibited from representing the
    corporation at an agency hearing under certain conditions.
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    BARRIOS v. COMMISSIONER OF LABOR
    Cite as 
    25 Neb. Ct. App. 835
    Appeal from the District Court for Hall County: M ark
    J. Young, Judge. Affirmed in part as modified, and in part
    reversed.
    Katie S. Thurber, Thomas A. Ukinski, and Dale M. Shotkoski
    for appellant.
    Thomas A. Wagoner for appellee Walter A. Barrios.
    R iedmann and Bishop, Judges, and Inbody, Judge, Retired.
    R iedmann, Judge.
    INTRODUCTION
    The Commissioner of Labor of the Nebraska Department of
    Labor (the Department) appeals the order of the district court
    for Hall County which remanded the matter to the Nebraska
    Appeal Tribunal for consideration of issues not previously
    raised. As explained below, we affirm in part as modified and
    in part reverse.
    BACKGROUND
    Walter A. Barrios was employed with Rogue Manufacturing
    Company (Rogue Manufacturing) for several years before he
    was laid off on October 8, 2015. He began working for Custom
    Rental Services, Inc. (Custom Rental), on October 12, but
    resigned on October 13. Barrios then applied for unemploy-
    ment benefits through the Department.
    Barrios’ application was initially granted, and he received
    benefits. After the Department completed its investigation,
    however, an adjudicator for the Department concluded in a
    notice of determination dated May 27, 2016, that because
    Barrios had voluntarily left his employment with Custom
    Rental without good cause, he was disqualified from receiving
    benefits under Neb. Rev. Stat. § 48-628 (Reissue 2010) for the
    week his employment ended and the 13 weeks immediately
    following. This disqualification resulted in an overpayment to
    Barrios of $3,552, which he was liable to repay.
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    Barrios appealed the decision to the appeal tribunal. The
    appeal tribunal held a hearing, at which the sole issue was
    whether Barrios voluntarily left his employment with Custom
    Rental without good cause under § 48-628. Barrios testified
    that during his job interview with Custom Rental, he was told
    that he would be delivering tables and chairs to different loca-
    tions. However, the only work he was asked to perform on
    October 12 and 13, 2015, was washing the outside of a build-
    ing. He explained that he decided to quit because “the job I
    got was not the one that I was told I would do.” After Barrios
    left his employment with Custom Rental, he called the unem-
    ployment office. He testified that after he reported he “only
    had worked for [Custom Rental] for three days,” an employee
    stated, “‘Oh, no problem. I congratulate you.’”
    The president of Custom Rental testified that during the
    days that Barrios worked, there were no deliveries that needed
    to be made. The president said that when that happens, the
    employees typically work on maintaining equipment or work
    on the facilities.
    In a written order, the appeal tribunal concluded that Barrios
    failed to prove that he terminated his employment with Custom
    Rental for good cause. Therefore, he was subject to the 13-week
    disqualification period, and any benefits he received to which
    he was not entitled must be repaid. The Department’s deter-
    mination was therefore affirmed. Barrios moved for recon-
    sideration of the appeal tribunal’s decision, but the request
    was denied.
    Barrios appealed the decision of the appeal tribunal to the
    district court for Hall County. In his amended petition, he
    alleged that the appeal tribunal erred in ordering that the ben-
    efits he received be repaid because he was eligible for benefits
    as a result of his employment at Rogue Manufacturing. In addi-
    tion, Barrios claimed that the Department should be estopped
    from recouping the benefits paid to him because he detri-
    mentally relied upon the representation of the Department’s
    employee that he was eligible for unemployment benefits.
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    After holding a hearing and reviewing the evidence, the
    district court reversed the decision and remanded the matter
    to the appeal tribunal “in the interests of justice to resolve
    issues not raised before the agency.” Specifically, the court
    concluded that the matter should be remanded for consider-
    ation of whether the Department is estopped from seeking
    reimbursement of the benefits paid to Barrios when its employ-
    ees initially awarded the benefits after knowing a voluntary
    withdrawal had occurred. The district court further remanded
    the matter for a determination of whether Barrios was enti-
    tled to unemployment benefits as a result of his employment
    with Rogue Manufacturing. Finally, the court found that plain
    error had occurred when the president of Custom Rental was
    allowed to participate in the hearing before the appeal tribunal
    and cross-examine witnesses. The district court concluded that
    unless the president was an attorney, he was prohibited from
    representing the corporation at the hearing. The Department
    timely appeals to this court.
    ASSIGNMENTS OF ERROR
    The Department assigns, summarized, that the district court
    erred in (1) remanding the matter for a determination of
    whether the Department is equitably estopped from seeking
    reimbursement of benefits paid to Barrios, (2) remanding the
    matter for a determination of whether Barrios is entitled to
    unemployment benefits from Rogue Manufacturing, and (3)
    finding plain error in the representation of Custom Rental by
    its president.
    STANDARD OF REVIEW
    [1-3] A judgment or final order rendered by a district court
    in a judicial review pursuant to the Administrative Procedure
    Act (APA) may be reversed, vacated, or modified by an appel-
    late court for errors appearing on the record. Underwood v.
    Nebraska State Patrol, 
    287 Neb. 204
    , 
    842 N.W.2d 57
    (2014).
    When reviewing an order of a district court under the APA
    for errors appearing on the record, the inquiry is whether
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    the decision conforms to the law, is supported by competent
    evidence, and is neither arbitrary, capricious, nor unreason-
    able. 
    Id. Whether a
    decision conforms to law is by definition
    a question of law, in connection with which an appellate court
    reaches a conclusion independent of that reached by the lower
    court. 
    Id. ANALYSIS Jurisdiction.
        [4-6] Before reaching the legal issues presented for review,
    it is the duty of an appellate court to determine whether it has
    jurisdiction over the matter before it. Boyd v. Cook, 
    298 Neb. 819
    , 
    906 N.W.2d 31
    (2018). 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; conversely, an
    appellate court is without jurisdiction to entertain appeals from
    nonfinal orders. Pennfield Oil Co. v. Winstrom, 
    267 Neb. 288
    ,
    
    673 N.W.2d 558
    (2004). If an order is interlocutory, immediate
    appeal from the order is disallowed so that courts may avoid
    piecemeal review, chaos in trial procedure, and a succession of
    appeals granted in the same case to secure advisory opinions
    to govern further actions of the trial court. Tilson v. Tilson, 
    299 Neb. 64
    , 
    907 N.W.2d 31
    (2018).
    Barrios claims we do not have jurisdiction, because the dis-
    trict court’s order is not final insomuch as it remanded the mat-
    ter for further proceedings. Neb. Rev. Stat. § 84-917(5)(b)(ii)
    (Reissue 2014) sets forth the procedure under the APA in
    situations in which the district court remands the matter to the
    agency for further proceedings. It states:
    The agency shall affirm, modify, or reverse its findings
    and decision in the case by reason of the additional pro-
    ceedings and shall file the decision following remand
    with the reviewing court. The agency shall serve a copy
    of the decision following remand upon all parties to the
    district court proceedings. The agency decision following
    remand shall become final unless a petition for further
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    review is filed with the reviewing court within thirty
    days after the decision following remand being filed with
    the district court. The party filing the petition for fur-
    ther review shall serve a copy of the petition for further
    review upon all parties to the district court proceeding
    in accordance with the rules of pleading in civil actions
    promulgated by the Supreme Court pursuant to section
    25-801.01 within thirty days after the petition for further
    review is filed. Within thirty days after service of the
    petition for further review or within such further time as
    the court for good cause shown may allow, the agency
    shall prepare and transmit to the court a certified copy
    of the official record of the additional proceedings had
    before the agency following remand.
    § 84-917(5)(b)(ii). The above procedure was added to the
    APA in 2006 when the Legislature passed 2006 Neb. Laws,
    L.B. 1115. As passed, L.B. 1115 incorporated 2006 Neb.
    Laws, L.B. 1136, the purpose of which was to eliminate the
    need for a new action being filed in the district court if a party
    sought review of an agency decision following additional
    proceedings on remand. See Judiciary Committee Hearing,
    L.B. 1136, 99th Leg., 2d Sess. 18 (Feb. 2, 2006). See, also,
    Concordia Teachers College v. Neb. Dept. of Labor, 
    252 Neb. 504
    , 
    563 N.W.2d 345
    (1997) (dismissing appeal under
    APA for lack of jurisdiction for failure to serve summons
    within 30 days of filing petition for review following decision
    on remand).
    [7-9] Under the APA, the district court sits as an inter-
    mediate appellate court. § 84-917(2) and Neb. Rev. Stat.
    § 84-918(1) (Reissue 2014). The Nebraska Supreme Court
    has held that when a district court, sitting as an intermediate
    appellate court, enters an order that affects a substantial right,
    that order is final for purposes of appeal if its judgment can be
    executed without any further action by the district court. Rohde
    v. Farmers Alliance Mut. Ins. Co., 
    244 Neb. 863
    , 
    509 N.W.2d 618
    (1994). Where the district court reverses a judgment in
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    favor of a party, and remands the matter for further proceed-
    ings, that party’s substantial right has been affected. 
    Id. In Rohde
    v. Farmers Alliance Mut. Ins. 
    Co., supra
    , the
    county court directed a verdict in favor of the defendant. The
    plaintiffs appealed to the district court, which reversed the
    judgment and remanded the case to the county court for trial on
    the merits. 
    Id. The defendant
    appealed to the Court of Appeals,
    which dismissed for lack of jurisdiction. 
    Id. On a
    petition for
    further review, the Nebraska Supreme Court overruled prior
    precedent to the extent that it held an order of a district court
    reversing a final order of the trial court and remanding the case
    for a trial on the merits is never a final order. See 
    id. The court
    explained that the determining factor was whether the district
    court retained the cause for further action; if it did not, the dis-
    trict court’s order remanding the case for further proceedings
    was a final order. See 
    id. In the
    present case, the district court reversed a decision
    that had been entered in favor of the Department, thereby
    affecting a substantial right of the Department. Pursuant to
    § 84-917(5)(b)(i), the district court remanded the matter for
    further proceedings to address an issue that had not been raised
    in the agency proceeding. Section 84-917(5)(b)(ii) requires the
    agency to file its new decision with the district court, but unless
    a party files a petition for further review with the district court,
    the agency’s decision becomes final without any further action
    of the district court. Prior to the amendment of § 84-917(5) in
    2006, the Nebraska Supreme Court had held that remanding a
    case to an agency for further proceedings did not empower the
    district court to retain jurisdiction over the action. Concordia
    Teachers College v. Neb. Dept. of 
    Labor, supra
    .
    The Nebraska Supreme Court has not squarely addressed
    this issue since the enactment of § 84-917(5)(b)(ii), and an
    argument can be made that the additional provisions pre-
    clude a final judgment until such time as the new decision is
    filed with the district court. However, we are mindful that in
    Kerford Limestone Co. v. Nebraska Dept. of Rev., 287 Neb.
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    653, 657, 
    844 N.W.2d 276
    , 280 (2014), a case in the same pro-
    cedural posture as the case before us, the Nebraska Supreme
    Court addressed the merits, recognizing that the appellant
    “timely appeals.” Accordingly, we address the Department’s
    assigned errors.
    Equitable Estoppel.
    The Department first argues that the district court erred
    in remanding the matter for a determination of whether the
    Department is estopped from seeking repayment of the benefits
    paid to Barrios to which he was not entitled. We conclude that
    because the elements of equitable estoppel are not present in
    the instant case, the district court erred in remanding the matter
    on that basis.
    [10,11] Equitable estoppel is a bar which precludes a party
    from denying or asserting anything to the contrary of those
    matters established as the truth by his or her own deeds, acts,
    or representations. Omaha Police Union Local 101 v. City of
    Omaha, 
    292 Neb. 381
    , 
    872 N.W.2d 765
    (2015). The doctrine
    applies where, as a result of conduct of a party upon which
    another person has in good faith relied to his or her detri-
    ment, the acting party is absolutely precluded, both at law and
    in equity, from asserting rights which might have otherwise
    existed. 
    Id. [12,13] The
    elements of equitable estoppel are, as to the
    party estopped: (1) conduct which amounts to a false repre-
    sentation or concealment of material facts, or at least which
    is calculated to convey the impression that the facts are
    otherwise than, and inconsistent with, those which the party
    subsequently attempts to assert; (2) the intention, or at least
    the expectation, that such conduct shall be acted upon by, or
    influence, the other party or other persons; and (3) knowl-
    edge, actual or constructive, of the real facts. 
    Id. As to
    the
    other party, the elements are: (1) lack of knowledge and of the
    means of knowledge of the truth as to the facts in question; (2)
    reliance, in good faith, upon the conduct or statements of the
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    party to be estopped; and (3) action or inaction based thereon
    of such a character as to change the position or status of the
    party claiming the estoppel, to his or her injury, detriment, or
    prejudice. 
    Id. In the
    present case, Barrios argues that the doctrine of det-
    rimental reliance applies because the Department paid unem-
    ployment benefits without a disqualification period when he
    had reported to its representative that he “only had worked
    for [Custom Rental] for three days.” But Barrios does not
    explain how he relied upon such action. He had already ter-
    minated his employment with Custom Rental when he called
    the Department, so he is not claiming that the statement of
    the Department’s representative induced him to quit his job.
    Barrios alleges in his amended petition that he was advised by
    the Department’s representative he would be eligible for ben-
    efits and that based upon the representation, he applied for, and
    received, benefits. But at the hearing before the tribunal, he
    testified that the representative said, “‘Oh, no problem. I con-
    gratulate you.’” We do not view that as a false representation
    upon which a person would reasonably rely to mean unemploy-
    ment benefits were available without a disqualification period.
    Even Barrios’ statement in his motion to reconsider that he was
    “advised that [he] qualified for Unemployment Benefits” can-
    not be construed as a representation that he would not have a
    disqualification period.
    Even assuming Barrios relied upon the representative’s
    statement as an inducement to apply for benefits, he suffered
    no harm in doing so. If he applied and the Department applied
    the 13-week disqualification period, he would receive nothing
    during those 13 weeks. If the Department did not apply the
    disqualification period, he would receive immediate unem-
    ployment benefits. He ultimately received immediate benefits
    to which the Department later determined he was not entitled.
    But because Barrios should never have received those benefits
    in the first place, allowing the Department to recoup the erro-
    neously paid funds will cause no detriment to Barrios. He will
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    end up in the same position he would have been had benefits
    been properly delayed at the outset. And if he was entitled to
    benefits after the 13-week period (a question we are unable to
    determine based upon the record before us), and he had never
    applied for benefits, he would have ended up in a worse posi-
    tion. Thus, the doctrine of equitable estoppel is not applicable
    here. As a result, the district court erred in remanding the
    matter for a determination of whether the Department should
    be estopped from seeking repayment of the erroneously paid
    funds from Barrios.
    Benefits From Rogue
    Manufacturing.
    The Department also claims that the district court erred in
    remanding the matter for a determination of whether Barrios is
    eligible for benefits from Rogue Manufacturing. Specifically,
    it argues that the district court failed to properly construe Neb.
    Rev. Stat. § 48-626 (Reissue 2010) and § 48-628, leading to the
    erroneous conclusion that “an adjudication of the separation
    of Barrios from Rogue [Manufacturing] was required before
    a determination could be made whether he separated from
    employment with Custom Rental with good cause.” Brief for
    appellant at 29. We disagree with the Department’s interpreta-
    tion of the district court’s order.
    [14] The sole issue addressed by the Department and the
    appeal tribunal was whether Barrios terminated his employ-
    ment with Custom Rental for good cause. In his amended
    petition to the district court, Barrios alleged that the appeal
    tribunal’s application of the disqualification period was errone-
    ous in part because he was eligible for the benefits he received
    due to his employment with Rogue Manufacturing. Although
    this argument was raised for the first time on appeal to the
    district court, under the APA, the district court has the discre-
    tion to remand a case for resolution of issues that were not
    raised before the agency. See § 84-917. If the court determines
    that the interest of justice would be served by the resolution
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    of any other issue not raised before the agency, the court
    may remand the case to the agency for further proceedings.
    § 84-917(5)(b)(i).
    The district court’s order observes that the transcript and bill
    of exceptions before it do not indicate whether the Department
    assessed if Barrios was eligible for benefits from Rogue
    Manufacturing. It is undisputed that the Department is seek-
    ing reimbursement of benefits it claims were erroneously
    paid to Barrios based on its determination that he was subject
    to the 13-week disqualification period due to his voluntary
    termination from Custom Rental. However, if his eligibil-
    ity for benefits was based upon his employment with Rogue
    Manufacturing, and his separation from that employer did
    not warrant disqualification, then any benefit received by
    Barrios should not have to be repaid. See Gilbert v. Hanlon,
    
    214 Neb. 676
    , 
    335 N.W.2d 548
    (1983) (benefits attributable
    to separate employer are disqualified separately). Contrary to
    the Department’s interpretation, the district court’s remand for
    consideration of Rogue Manufacturing’s liability was not for
    the purpose of determining whether Barrios separated from
    employment with Custom Rental with good cause, but, rather,
    for the purpose of determining whether Barrios was required
    to repay the benefits he received.
    The underlying, unresolved issue is whether the Department
    is entitled to a return of the benefits paid. We cannot find
    that the district court abused its discretion in remanding the
    matter for a determination of whether Barrios was entitled to
    the benefits he received as a result of his employment with
    Rogue Manufacturing.
    We note that although the court’s order indicates that it
    was remanding the matter to the appeal tribunal for this deter-
    mination, the matter must be remanded to the Department.
    It is the Department’s duty to assess whether a claimant is
    entitled to receive unemployment benefits for which he or she
    has applied, and under § 84-917(5)(b), the court may remand
    the case to the agency for further proceedings. Thus, we
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    modify the district court’s order to remand the matter to the
    Department, rather than the appeal tribunal.
    Representation by Custom
    Rental’s President.
    Finally, the Department asserts that the district court erred
    in finding plain error in the appeal tribunal allowing the repre-
    sentation of Custom Rental by its president. The district court
    concluded that unless the president of Custom Rental was an
    attorney, he may not represent the corporation during the pro-
    ceedings before the appeal tribunal. We conclude that the court
    erred in this determination.
    [15] Pursuant to the Nebraska Supreme Court rules:
    Whether or not they constitute the practice of law, the
    following are not prohibited:
    ....
    (C) Nonlawyers appearing in a representative capacity
    before an administrative tribunal or agency, subject to
    the following:
    ....
    (2) A nonlawyer who is an employee, member, or
    officer of an entity or organization may represent such
    entity or organization before an administrative tribunal
    or agency of the State of Nebraska, or a political sub-
    division of the State of Nebraska, if all of the following
    conditions are met:
    (a) The tribunal, agency, or political subdivision per-
    mits representation of parties by nonlawyers;
    (b) The nonlawyer employee, member, or officer is
    specifically authorized by the entity or organization to
    appear before the tribunal, agency, or political subdivision
    on its behalf;
    (c) Such representation is not the primary duty of the
    nonlawyer employee, member, or officer to the entity or
    organization, but is secondary to other duties relating to
    the management or operation of the entity or organization;
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    (d) The nonlawyer employee, member, or officer does
    not receive separate or additional compensation (other
    than reimbursement for costs) for such representation;
    (e) The representation does not involve a claim that the
    tribunal, agency, or political subdivision’s action or the
    action of another person is illegal as a matter of law or
    unconstitutional; and
    (f) The Nebraska Evidence Rules as applicable in
    the district courts do not apply to the administrative
    proceeding.
    Neb. Ct. R. § 3-1004. Thus, under the Nebraska Supreme
    Court rules, a corporate officer who is not a lawyer is not pro-
    hibited from representing the corporation at an agency hearing
    under certain conditions. The record before us lacks evidence
    as to several of the conditions set forth in § 3-1004(C)(2),
    however. Thus, this court and the district court are unable
    to determine whether the representation of Custom Rental
    by its president constituted the unauthorized practice of law.
    Accordingly, the district court erred in finding that allowing
    Custom Rental’s president to represent the corporation at the
    agency hearing was plain error.
    CONCLUSION
    We conclude that the district court erred in remanding the
    matter for a determination of whether the doctrine of equitable
    estoppel applies to the Department’s request for reimburse-
    ment of unemployment benefits paid to Barrios. In addition,
    the court’s finding of plain error with respect to allowing
    Custom Rental’s president to represent the corporation before
    the appeal tribunal was erroneous. The district court’s order
    is therefore reversed as to those issues. We affirm the court’s
    decision to remand the matter for a determination of whether
    Barrios is eligible to receive unemployment benefits from
    Rogue Manufacturing, but modify the order to remand the mat-
    ter to the Department, rather than the appeal tribunal.
    A ffirmed in part as modified,
    and in part reversed.