Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/20/2018 09:09 AM CDT




                                                      - 582 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                                              Cite as 300 Neb. 582




                          Estate of Gerald Schluntz et al., appellants, v.
                          Lower R epublican Natural R esources District,
                                  a political subdivision, appellee.
                                                  ___ N.W.2d ___

                                        Filed July 20, 2018.    No. S-17-970.

                1.	 Rules of the Supreme Court: Appeal and Error. Headings in the argu-
                    ment section of a brief do not satisfy the requirements of Neb. Ct. R.
                    App. P. § 2-109(D)(1) (rev. 2014).
                2.	 Jurisdiction: Appeal and Error. Jurisdictional determinations that do
                    not involve a factual dispute are reviewed de novo.
                3.	 Statutes: Appeal and Error. Issues of statutory interpretation present a
                    question of law that an appellate court independently reviews.
                4.	 Rules of the Supreme Court: Appeal and Error. Where an appellate
                    brief fails to comply with the mandate of the appellate rule governing
                    the form and content thereof, the appellate court may proceed as though
                    the party failed to file a brief or, alternatively, may examine the proceed-
                    ings for plain error.
                5.	 Appeal and Error. Plain error is error plainly evident from the record
                    and of such a nature that to leave it uncorrected would result in damage
                    to the integrity, reputation, or fairness of the judicial process.
                6.	 Statutes: Judicial Construction: Legislature: Presumptions: Intent.
                    Where a statute has been judicially construed and that construction has
                    not evoked an amendment, it is presumed that the Legislature has acqui-
                    esced in the court’s determination of the Legislature’s intent.
                7.	 Actions: Jurisdiction: Appeal and Error. Where a district court has
                    statutory authority to review an action, the district court acquires juris-
                    diction only if the review is sought in the mode and manner and within
                    the time provided by statute.

                 Appeal from the District Court for Furnas County: David W.
               Urbom, Judge. Affirmed.
                             - 583 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
         ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                       Cite as 300 Neb. 582

   Thomas G. Lieske, of Lieske, Lieske & Ensz, P.C., L.L.O.,
for appellants.

  Katherine J. Spohn and Blake E. Johnson, of Bruning Law
Group, for appellee.

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

   Papik, J.
   In certain statutorily defined circumstances, parties
aggrieved by actions taken by Nebraska administrative agen-
cies or political subdivisions can seek review in district court
in accordance with the Administrative Procedure Act (APA).
The APA directs that proceedings for such review be insti-
tuted by filing a petition in the “district court of the county
where the action is taken.” Neb. Rev. Stat. § 84-917(2)(a)(i)
(Reissue 2014). We have previously held and reaffirm today
that this language requires that a petition for review be filed
in the district court of the county in which the first adjudi-
cated hearing of a disputed claim took place. Because the
petition in this case was not filed in the district court of
the county where the first adjudicated hearing occurred, we
affirm the district court’s dismissal for lack of subject matter
jurisdiction.

                      BACKGROUND
   In July 2016, the Lower Republican Natural Resources
District (LRNRD), filed a complaint against the estate of
Gerald Schluntz, Julie Smith, and Tamara Bishop (appellants)
in this matter. LRNRD is a political subdivision authorized
to regulate ground water usage. In its complaint, LRNRD
alleged that appellants, owners and operators of farmland
located in Furnas County, Nebraska, had violated LRNRD
rules regarding ground water use. Public hearings followed in
which appellants were represented by counsel. Importantly for
                             - 584 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
         ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                       Cite as 300 Neb. 582

purposes of this appeal, it is undisputed that the first hearing
(and all subsequent hearings) took place in LRNRD’s offices
in Harlan County, Nebraska. LRNRD later issued an order
entitled “Cease and Desist Order and Order Imposing Civil
Penalties.” Appellants contend that the LRNRD order had
the effect of prohibiting them from irrigating certain acres
of farmland.
   Appellants attempted to obtain review of the LRNRD order
by filing a petition in the district court for Furnas County.
In the petition, appellants asked that the LRNRD order be
vacated, alleging, among other things, that LRNRD did not
follow proper procedures and that its actions were arbitrary
and capricious.
   LRNRD moved to dismiss for lack of subject matter juris-
diction and failure to state a claim. The district court granted
the motion on subject matter jurisdiction grounds. The dis-
trict court explained that under the Nebraska Ground Water
Management and Protection Act, appeals of orders issued by
natural resources districts are governed by the APA, which
requires that proceedings for review be commenced by “filing
a petition in the district court of the county where the action
is taken.” § 84-917(2)(a)(i). The district court then noted sev-
eral decisions from this court interpreting “the county where
the action is taken” under the APA to mean the county where
the first adjudicated hearing of a disputed claim took place.
Because there was no dispute that all hearings regarding the
LRNRD order were held in Harlan County, the district court
concluded it did not have subject matter jurisdiction over the
petition brought in Furnas County and granted the motion
to dismiss.

                 ASSIGNMENT OF ERROR
  [1] Appellants failed to include in their brief on appeal a
separate section assigning error in the district court’s order
of dismissal. The table of contents in appellants’ brief does
                             - 585 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
         ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                       Cite as 300 Neb. 582

contain a sentence under the heading for “Argument” stating,
“The Court erred by dismissing the appeal of the Appellants’
Petition in Error which was filed in the District Court of
Furnas County.” We have previously made clear, however, that
headings in the argument section of a brief do not satisfy the
requirements of Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014),
see, e.g., In re Interest of Samantha L. & Jasmine L., 286 Neb.
778, 839 N.W.2d 265 (2013), and we see no reason to treat a
heading within the table of contents differently.

                   STANDARD OF REVIEW
   [2-5] We review jurisdictional determinations that do not
involve a factual dispute de novo. See Butler Cty. Sch. Dist. v.
Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d 724 (2012).
Issues of statutory interpretation also present a question of law
that we independently review. Id. However, where a party’s
brief fails to comply with § 2-109(D)(1), we may proceed as
though the party failed to file a brief or, alternatively, may
examine the proceedings for plain error. See In re Interest of
Samantha L. & Jasmine L., supra. Plain error is error plainly
evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation,
or fairness of the judicial process. Id.

                           ANALYSIS
   Despite appellants’ failure to assign error in the manner
contemplated by our rules, the basis for appellants’ appeal is
nonetheless clear: They contend that the district court erred
by finding it lacked subject matter jurisdiction and ordering
dismissal. In the end, the appropriate standard of review is not
crucial to resolving this appeal, because we find no error in the
district court’s order of dismissal, let alone error sufficiently
obvious to merit reversal on the basis of plain error.
   Appellants contend that this action was properly brought in
the district court for Furnas County, because the farmland at
                              - 586 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
          ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                        Cite as 300 Neb. 582

issue is located in Furnas County. According to appellants, the
district court for Furnas County had jurisdiction pursuant to
Neb. Rev. Stat. § 25-401 (Reissue 2016). Section 25-401 does
not, however, apply to the petition appellants filed in this case.
Section 25-401 states that “[a]ll actions to recover damages
for any trespass upon or any injury to real estate . . .” shall be
brought in the district court in the county where the real estate
at issue is located. Appellants did not bring an action for dam-
ages for trespass upon or injury to real estate or any other type
of action covered by § 25-401. Rather, they filed a petition for
judicial review of an order issued by a natural resources dis-
trict. Section 25-401 does not apply here.
   The statute that does govern here is a provision of the
Ground Water Management and Protection Act, Neb. Rev.
Stat. § 46-750 (Reissue 2010). That statute provides that those
aggrieved by orders of a natural resources district have the
right to seek review but that such review “shall be in accord­
ance with the [APA].” As noted above, the APA, in turn,
directs that petitions for review be filed “in the district of
the county where the action is taken.” § 84-917(2)(a)(i). On
numerous occasions over the last several decades, we have
held that for purposes of the APA, the “county where the
action is taken” is the county where the first adjudicated hear-
ing regarding a disputed claim was held. See, Nebraska Dept.
of Health & Human Servs. v. Weekley, 274 Neb. 516, 741
N.W.2d 658 (2007); Essman v. Nebraska Law Enforcement
Training Ctr., 252 Neb. 347, 562 N.W.2d 355 (1997); Metro
Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996),
disapproved on other grounds, State v. Nelson, 274 Neb. 304,
739 N.W.2d 199 (2007); Bd. of Ed. of Keya Paha County
v. State Board of Education, 212 Neb. 448, 323 N.W.2d
89 (1982).
   Appellants acknowledge our decisions adopting the “first
adjudicated hearing” interpretation, but invite us to adopt a dif-
ferent interpretation of the APA’s language when a party seeks
                            - 587 -
          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
         ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                       Cite as 300 Neb. 582

review of an administrative action pertaining to real estate.
Appellants suggest that such an interpretation would eliminate
potential confusion, because while there may be multiple hear-
ings in multiple counties regarding a given matter, litigants
“always know where the land is.” Brief for appellants at 5.
They also contend that their preferred interpretation would
reduce the potential for confusion, because other types of
actions involving land can be brought in the county where the
land is located.
   We must decline appellants’ invitation to deviate from our
decisions interpreting the exact same statutory language of
the APA that is at issue in this case. Rather than reducing the
potential for confusion, we believe we would be producing
confusion if we were to interpret the phrase “county where
the action is taken” to mean different things depending on
the factual context of the underlying administrative action. As
we have previously explained, the “first adjudicated hearing”
interpretation provides a clear rule and “grafting unneces-
sary exceptions upon it” would only “complicate compliance.”
Essman, 252 Neb. at 352, 562 N.W.2d at 358.
   [6] Furthermore, where a statute has been judicially con-
strued and that construction has not evoked an amendment,
it is presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent. Heckman
v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017). As the
Legislature has not responded to any of our prior decisions
interpreting this language with an amendment, we must pre-
sume it has acquiesced to the “first adjudicated hearing”
interpretation.
   [7] Because the APA requires that review be sought in the
district court in the county where the first adjudicated hear-
ing took place, appellants filed their petition in the wrong
court. There is no dispute that the first hearing regarding
the LRNRD order was held in Harlan County, yet appellants
filed their petition in the district court in Furnas County.
                            - 588 -
          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
         ESTATE OF SCHLUNTZ v. LOWER REPUBLICAN NRD
                       Cite as 300 Neb. 582

Faced with a petition for review filed in the wrong court, the
district court had no choice but to dismiss. Where a district
court has statutory authority to review an action, the district
court acquires jurisdiction only if the review is sought in
the mode and manner and within the time provided by stat-
ute. J.S. v. Grand Island Public Schools, 297 Neb. 347, 899
N.W.2d 893 (2017). Appellants did not seek review in the
manner provided by statute, and thus the district court did not
acquire jurisdiction.

                        CONCLUSION
   Because appellants did not file their petition for review
in the district court in the county in which the first adjudi-
cated hearing regarding the disputed claim was held, the dis-
trict court correctly dismissed on subject matter jurisdiction
grounds. We affirm.
                                                  A ffirmed.
