Glass v. Nebraska Department of Motor Vehicles

Per Curiam.

The appellee, Darren M. Glass, was arrested for driving a motor vehicle while under the influence of alcohol. Through an administrative hearing, the Nebraska Department of Motor Vehicles revoked Glass’ license for 90 days.

Glass then sought review by the district court, which reversed the department’s order and directed that Glass’ driving privileges be restored. The department thereupon appealed to the Nebraska Court of Appeals. On our own motion, we removed the case to this court in order to regulate the caseloads of the two appellate courts.

The department assigns and argues but a single claim of error, the district court’s determination that “it had subject matter jurisdiction over” the proceeding. (Emphasis supplied.) Thus, the merits of the district court’s decision are not before us.

The record shows that after the department suspended Glass’ license, he filed a “Petition for Review of Administrative Agency’s Decision” in the district court, naming as defendant “Nebraska Department of Motor Vehicles, Administrative License Revocation Hearing Agency/Respondent.” The summons on this district court petition was served only on the director of the department.

The department filed a special appearance, contending that the district court lacked “personal jurisdiction” over the agency because Glass failed to serve a copy of the summons on the Attorney General. (Emphasis supplied.) Glass successfully moved to strike the special appearance on the ground that it was not timely filed, whereupon the department unsuccessfully moved to dismiss the petition “on the same grounds alleged in the Special Appearance.”

At the relevant time, Neb. Rev. Stat. § 39-669.18 (Reissue 1988) provided, as Neb. Rev. Stat. § 60-6,208 (Reissue 1993) now provides, that one aggrieved by the department’s revocation may “appeal ... in accordance with the Administrative Procedure Act.” The Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 through 84-920 (Reissue 1994), grants persons aggrieved by certain nonjudicial determinations the right to obtain judicial review of those decisions. §§ 84-901 and 84-917. It further provides that such a

review shall be instituted by filing a petition in the district court .... All parties of record shall be made parties to the proceedings for review. If an agency’s only role in a contested case is to act as a neutral factfinding body, the agency shall not be a party of record. In all other cases, the agency shall be a party of record. Summons shall be served within thirty days of the filing of the petition in the manner provided for service of a summons in a civil action.

§ 84-917(2)(a).

Neb. Rev. Stat. § 25-510.02 (Reissue 1989) states that the “State of Nebraska [and] any state agency . . . may be served by leaving the summons at the office of the Attorney General” in a specified variety of ways. Thus, when § 25-510.02 applies, as by its terms it does here, in order to institute judicial review under the act, a summons must be served on the Attorney General. Twiss v. Trautwein, 247 Neb. 535, 529 N.W.2d 24 (1995).

Although, as noted earlier, in the court below the department thought it was dealing with an issue of personal jurisdiction, it now urges that because the Attorney General was not served with summons as required by § 84-917(2)(a), the district court lacked jurisdiction over the subject matter of Glass’ district court petition.

The two types of jurisdiction are far different. Personal jurisdiction is the power of a tribunal to subject and bind a particular entity to its decisions. See Stone’s Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo. 1991). Subject matter jurisdiction, on the other hand, is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. See In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994). While the lack of subject matter jurisdiction cannot be waived nor the existence of subject matter jurisdiction conferred by the consent or conduct of the parties, Scherbak v. Kissler, 245 Neb. 10, 510 N.W.2d 318 (1994), lack of personal jurisdiction may be waived and such jurisdiction conferred by the conduct of the party, see Egan v. Burner, 155 Neb. 611, 52 N.W.2d 820 (1952).

In taking its present position, the department relies on two of our prior decisions: McCorison v. City of Lincoln, 218 Neb. 827, 359 N.W.2d 775 (1984), and Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968). In McCorison, we ruled that where the aggrieved party failed to file a so-called notice of appeal from the decision of a city board within the time set by the relevant statute, the district court acquired no jurisdiction to entertain the matter. In so ruling, we wrote that if “statutory requirements are not met, the district court acquires no jurisdiction and may not enter any order other than an order of dismissal.” Id. at 828-29, 359 N.W.2d at 776. Although we did not therein specify the type of jurisdiction involved, it is clear that we were not dealing with personal jurisdiction, for without the timely filing of the so-called notice of appeal, the district court did not acquire the power to hear and determine the board’s decision.

In Norris P.P. Dist., without specifying the type of jurisdiction involved, we held that the district court lacked jurisdiction because of the failure to serve a summons within 30 days as required. However, it must be remembered that this holding was made under a statute providing that “without the issuance of a summons” there was no “commencement of an action.” Id. at 493, 161 N.W.2d at 872. Thus, for the same reason that without a timely filing of the document invoking judicial review there could be no jurisdiction in McCorison to consider the matter, neither without the service of summons in Norris P.P. Dist. did the district court acquire power to consider the matter. In each case, the situation was as if nothing had been filed in the district court.

Although this case was not cited by either party, we also declared in Nebraska Dept. of Correctional Servs. v. Carroll, 222 Neb. 307, 383 N.W.2d 740 (1986), that to acquire jurisdiction over the subject matter of the action, there must be strict compliance with the requirements of the statute granting the right of appeal. Carroll arose upon the application to the district court to recover attorney fees for services rendered the claimant in proceedings held before state agencies. Because under the circumstances the district court could not reach the substantive issues considered by the agencies and the relevant statute permitted the district court to award only those fees incurred in determining issues the district court could reach, we determined that the district court had no power to hear and determine the matter of fees for services before the agencies. The question in Carroll thus was clearly one of subject matter jurisdiction.

Additionally, in another case not noted by the parties, we, in the context of reviewing the appropriateness of a sanction for the failure to timely prepare a transcript, wrote that the “filing of the petition and the service of summons are the two actions that are necessary to establish jurisdiction pursuant to the” act. James v. Harvey, 246 Neb. 329, 332, 518 N.W.2d 150, 152 (1994). However, the Harvey dictum did not distinguish between the steps required for obtaining subject matter jurisdiction under the act and those required for obtaining personal jurisdiction.

The key to understanding the distinction between personal jurisdiction and subject matter jurisdiction in this case is to first recognize the nature of the proceeding before us. While § 39-669.18 inartfully referred to an “appeal” from the department’s decision, the act makes clear that we are dealing not with an appeal, in the technical sense, but with the initiation of a proceeding to obtain judicial-branch review of the decision of another branch of government. §§ 84-901 and 84-917. In contrast, § 39-669.18 and the act grant the district court the original power and authority to determine whether the department’s decision should stand. Thus, we are not dealing with “appellate jurisdiction,” which in the strict sense is the power and authority conferred upon a superior court to reexamine and redetermine causes tried in inferior courts. See Waters-Pierce Oil Co. v. State of Texas, 107 Tex. 1, 106 S.W. 326 (1907). Rather, we are dealing with the institution of a suit to obtain judicial-branch review of a nonjudicial-branch decision; such a proceeding does not constitute an appeal. See, Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E.2d 399 (1940) (strictly speaking, there is no such thing as “appeal” from administrative agency, but to meet requirements of “due process of law,” there must be “judicial review” of orders of administrative body, for purpose of adjudication that agency has acted within scope of its powers, that substantial evidence supports factual conclusions, and that determination comports with law applicable to facts found); Commercial Standard Insurance Company v. Cotton, 443 S.W.2d 423 (Tex. Civ. App. 1969) (suit to set aside award of board is “suit” and not “appeal,” and when suit is filed, subject matter is withdrawn from board); Broughton’s Est. v. Central Or. Irr. Dist., 165 Or. 435, 108 P.2d 276 (1940) (under statute providing that any person aggrieved by order of state engineer in connection with water rights shall have right to appeal to circuit court, “appeal” contemplated by statute is to be regarded as original proceeding in circuit court); DeFlumeri v. Sunderland, 109 Conn. 583, 145 A. 48 (1929); Norwalk Street By. Co.’s Appeal, 69 Conn. 576, 37 A. 1080 (1897); Plummer v. Johnson, 61 N.M. 423, 301 P.2d 529 (1956).

As a consequence, we are here concerned not with whether Glass properly perfected an appeal from the department and thereby invoked the district court’s appellate jurisdiction over the subject matter, but with whether the district court, either through the proper service of summons or through some other means, obtained jurisdiction over the “person” of the department.

The answer to the question before us is foreshadowed by a case not cited by either party: Pointer v. State, 219 Neb. 315, 363 N.W.2d 164 (1985). Therein, the plaintiff had filed a claim for damages resulting from an automobile accident with the State Claims Board, as required by the State Tort Claims Act. Upon the board’s denial of the claim, the plaintiff filed a petition for judicial review in the district court and caused summons to be served on the State by delivery to the Secretary of State. However, the relevant statute required service to be made on the Attorney General. After making several other general appearances in the district court, the Attorney General, by filing a motion to dismiss, claimed lack of jurisdiction because of the improper service of summons. In reversing the district court’s order of dismissal, we, overruling precedent, held that in those instances where the Legislature has waived the State’s sovereign immunity as to a particular cause of action and has designated a person or official as the agent of the State upon whom summons may be served, that person or official validly may enter a voluntary appearance for the State, thereby waiving the issue of in personam jurisdiction.

Just as is the situation here, the district court in Pointer had been asked to judicially review a nonjudicial-branch decision; just as is the situation here, the Pointer summons giving notice of that action was not properly served; and just as is the situation here, the improperly noticed party in Pointer sought affirmative relief from the district court by asking for a dismissal of the proceeding for judicial review. Consequently, Pointer dictates that we hold here that the department submitted its person to the jurisdiction of the district court, and we hereby do so.

This ruling comports with the long-settled law that one who invokes the power, of the court on an issue other than the court’s jurisdiction over one’s person makes a general appearance so as to confer on the court personal jurisdiction over that person. Eliason v. Devaney, 228 Neb. 331, 422 N.W.2d 356 (1988); Cropsey v. Wiggenhorn, 3 Neb. 108 (1873). That is to say, a party who does more than call a court’s attention to the lack of personal jurisdiction by asking for affirmative relief will not later be heard to claim that the court lacked jurisdiction over that party.

Thus, irrespective of whether the district court here lacked personal jurisdiction over the department when overruling the department’s special appearance, the department submitted itself to the personal jurisdiction of the court when it elected to move for a dismissal rather than to stand on and appeal the district court’s ruling on the special appearance. See Neb. Rev. Stat. § 25-516.01 (Reissue 1989). In so writing, we are not unmindful that pretrial motions to dismiss are not properly a part of our pleading practice, State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994); however, the relevant fact is that regardless of whether it did so properly, by moving for a dismissal the department invoked the power of the court on an issue other than personal jurisdiction and thereby made a voluntary appearance with the result that it submitted itself to the binding effect of the district court’s judgment, Pointer, supra; Eliason, supra (motion to dismiss invokes power of court on issue other than jurisdiction and constitutes general appearance); § 25-516.01.

For the foregoing reasons, the judgment of the district court must be, and hereby is, affirmed.

Affirmed.

Connolly, J., not participating.