Opinion
No. A-11-072.
12-27-2011
MIRIAM VALENCIA, APPELLEE, v. JAMES E. MITCHELL, APPELLANT.
James E. Mitchell, pro se. Tina Ray for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: STEPHEN M. SWARTZ, County Judge. Appeal dismissed.
James E. Mitchell, pro se.
Tina Ray for appellee.
INBODY, Chief Judge, and CASSEL and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. James E. Mitchell appeals from an order of the Douglas County District Court granting Miriam Valencia a harassment protection order against him. Because we find that the protection order has, by its terms, expired and because we find no reason to apply an exception to the mootness doctrine, the appeal is dismissed as moot.
BACKGROUND
On December 3, 2010, Valencia filed a petition and affidavit to obtain a harassment protection order against Mitchell. In the petition, Valencia alleged that on November 26, Mitchell yelled at her and threatened to fire her when she asked about money he owed her as his employee; that on December 1, Mitchell called her around 6 a.m. and asked if he could come over to her house; and that on December 2, Mitchell called her 12 times between 9 and 10 p.m. and left messages asking her to call him back.
On December 3, 2010, the court entered an ex parte harassment protection order, pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2008). The court specified that based on § 28-311.09, the protection order was to remain in effect for a period of 1 year unless modified by order of the court.
Mitchell filed a request for a show cause hearing as to why the protection order should not remain in effect. A hearing was held on January 6, 2011. At the hearing, Valencia testified about the events that occurred on November 26 and December 1 and 2, as alleged in her petition. Valencia also tried to testify about other incidents that were not in her petition, but the court did not allow such testimony.
On the same day as the hearing, the district court entered an order reflecting that the protection order issued on December 3, 2010, was to remain in effect for a period of 1 year from the date of the original order. Mitchell filed this timely appeal.
ASSIGNMENTS OF ERROR
Mitchell assigns that the district court erred in granting Valencia's request for a protection order and in violating his due process rights by refusing to allow him to cross-examine Valencia and refusing to admit certain exhibits into evidence.
STANDARD OF REVIEW
Mootness does not prevent appellate jurisdiction. 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. 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. State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009).
ANALYSIS
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. Greater Omaha Realty Co. v. City of Omaha, 258 Neb. 714, 605 N.W.2d 472 (2000). While it is not a constitutional prerequisite for jurisdiction, the existence of an actual case or controversy is necessary for the exercise of judicial power. Id. Thus, we must first determine whether the expiration of the protection order, which expired by its own terms on December 3, 2011, has rendered this appeal moot.
A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation. Id. A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999). As a general rule, a moot case is subject to summary dismissal. Id.
The protection order in the present case was entered on December 3, 2010, and by its own terms was effective until December 3, 2011. Because the protection order in this case has expired, the instant appeal is moot. Appeals involving the granting of a protection order will almost always be moot before the case is heard because of the time-limited nature of a protection order. Hron v. Donlan, 259 Neb. 259, 609 N.W.2d 379 (2000). However, it has been recognized that 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. Id.
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. Id.
Mitchell does not allege any reasons which would justify the application of any exception to the mootness doctrine nor is there any indication in the record that any exception should be invoked under the circumstances of this case.
CONCLUSION
Because we have concluded that this appeal is moot and that no exceptions to the mootness doctrine apply, the appeal is dismissed.
APPEAL DISMISSED.