dissenting.
I must respectfully dissent from the majority opinion. For the reasons stated below, I think this court should reverse the district court’s order that dismisses as moot the action concerning the Board’s September 14, 1999, approval of the first conditional use permit application and grant a permanent injunction prohibiting the te Veldes from acting pursuant to that permit, rather than affirming the court’s dismissal. I would also direct the trial court to award attorney fees to the appellants for the entire action, pursuant to § 84-1414(3). I believe this court should further declare all proceedings before the Board and the district court in this case after September 28, 1999, void because the action of the Board on the second and third applications was taken without jurisdiction and hence was void. I would order those latter applications dismissed for lack of jurisdiction.
The basis for my position is the proposition that in the case of an appeal from an administrative tribunal, “[o]nce the review powers of a court have been invoked, the board has no further jurisdiction over a matter until there is a remand from the court.” 4 Rathkopf’s The Law of Zoning & Planning § 48.03[3] [b] (Edward H. Ziegler, Jr. ed. 1997). (Below, I cite and discuss the cases upon which I rely.) In my view, the action which the appellants filed in the district court for Antelope County on September 28, 1999, was an action to set aside the Board’s order of September 14 as void under the open meetings law and was an appeal from that order and the action of the Board under Neb. *426Rev. Stat. § 23-174.09 (Reissue 1997). I therefore take the position that under the rule summarized by the above authority, the Board did not have any further authority to entertain the te Veldes’ applications for a permit until the district court dismissed the action concerning the Board’s order on the first application.
It is rather clear that the order of September 14, 1999, was issued in violation of the public meetings law and should be declared void under § 84-1414. In declaring the order void under that law, the trial court merely entered a temporary injunction. Of course, a temporary injunction is not a final order. See, Einspahr v. Smith, 46 Neb. 138, 64 N.W. 698 (1895); O’Connor v. Kaufman, 6 Neb. App. 382, 574 N.W.2d 513 (1998). That order could not have become final until the court entered a final order. The Board’s and Planning Commission’s action with regard to the te Veldes’ first application was void, and the trial court clearly would have been justified in entering a final order declaring that action void; or, the te Veldes could have confessed judgment or dismissed their losing appeal and started over, but this did not happen. The district court’s jurisdiction continued until a final order was entered and that order was appealed, and since that appeal is still pending in this court, this court has exclusive jurisdiction. Therefore, in my view, the case which was started on September 28,1999, will not be disposed of until this appeal is concluded by this court or the Nebraska Supreme Court, as the case may be.
I realize one might take the position that by filing the amended petition on June 1, 2000, the appellants abandoned their original petition. However, this would make no difference, because all of the proceedings had before the Board between September 28, 1999, and that date were already void because there was an appeal pending in the district court during all of that time. In addition, the appellants never abandoned their position that they wanted an order reversing the order granting the initial application.
I am not relying solely upon the above-quoted proposition for authority for my position. That quote merely summarizes the authorities upon which I rely. In 73A C.J.S. Public Administrative Law and Procedure § 194 (1983), it is stated:
Except as, and to the extent that, a statute may otherwise provide, on institution of proceedings to review or test the *427validity of the orders or decisions of the administrative agency, the agency loses jurisdiction over the subject matter of the order during the pendency of such proceedings, and any order on the subject made by the agency while the proceedings for review are pending is a nullity.
I look now to other jurisdictions for authority for my position.
State, ex rel., v. Board, 54 Ohio St. 2d 75, 374 N.E.2d 1355 (1978), was an action in which the Ohio Court of Appeals dismissed a complaint for a writ of prohibition and the Ohio Supreme Court reversed. In that case, a steel company sought a writ of prohibition to stop an environmental board of review (environmental board) from continuing and to allow further proceedings prior to final appellate determination of an appeal of a first proceeding which was pending in the Ohio Court of Appeals. The Ohio Director of Environmental Protection (Director) had issued a consent and abatement order. This was appealed to the environmental board, and it found that the Director had no authority to issue a consent order and directed that the previous order of the Director be vacated and that the Director issue a conditional order and hold a second hearing. The environmental board’s order was appealed in December 1976. The Director issued a conditional order on December 29 and issued a second one on February 18,1977. The second order was appealed. The steel company then instituted a writ of prohibition in the Ohio Court of Appeals, and that court denied the writ. The steel company argued that when the environmental board’s final order was appealed, the environmental board lost jurisdiction over the subject matter and could not entertain relitigation of issues pending on appeal; that a writ of prohibition should be issued, because the environmental board was without authority; and that an appeal from the relitigation would not be an adequate remedy. Id. The steel company’s opponents argued the merits in a cross-appeal.
The Ohio Supreme Court reviewed these matters and noticed a common issue between the appeal still pending in the Ohio Court of Appeals and the second appeal to the environmental board. In ruling that the environmental board was without jurisdiction to hear the second action, the Ohio Supreme Court stated that an administrative agency has jurisdiction to reconsider its decision *428until the institution of a court appeal, but it loses its jurisdiction thereafter. One dissenter did not think the second proceeding was a substantive challenge to the earlier decision, and a second dissenter could not see the “identicalness” of the two cases. Id. at 82, 374 N.E.2d at 1359.
In American Smelting & Ref. Co. v. Arizona Air Pol. C. H. Bd., 113 Ariz. 243, 550 P.2d 621 (1976), an appeal from the Arizona Air Pollution Control Hearing Board (pollution board) was dismissed as moot by the Superior Court of Maricopa County. In that case, the pollution board had entered an order which renewed certain restrictions and the plaintiff, a refining company, had appealed. Sua sponte, the pollution board vacated the order which formed the basis for the refining company’s complaint in superior court and ordered a hearing for the purpose of modifying a conditional permit previously ordered. The pollution board then filed a motion in the superior court to dismiss the complaint because the order appealed from had been vacated, and the superior court granted that motion on the ground that the issue had become moot. The refining company appealed upon the basis that its previous appeal had divested the pollution board of jurisdiction to further consider the matter. The Supreme Court of Arizona agreed. In making that decision, the court said, “A board, commission or tribunal can use its appropriate modification power to reconsider decisions until the time when an appeal is perfected.” Id. at 244, 550 P.2d at 622. It further said, by way of quoting an earlier case:
“ ‘[Wjhere an appeal had already been perfected from the judgment of the lower court, the Commission’s revocation of the certificate it had theretofore issued to Whitfield was a direct and plain invasion of the appellate and revisory powers of this court. The order in question certainly did not aid the appeal; rather, it would tend to nullify it. The jurisdiction of this court when properly invoked must be protected. It cannot be defeated or usurped to the extent that its decision when rendered be nugatory.’ ”
Id. at 244-45, 550 P.2d at 622-23.
The order of the pollution board entered after the appeal was perfected was declared void and of no effect, and therefore, the *429superior court had no basis upon which to dismiss the complaint as moot. In American Smelting & Ref. Co., the superior court was directed to consider the merits of the first appeal.
In Martin v. Dayton School Dist., 85 Wash. 2d 411, 536 P.2d 169 (1975), a school district had issued a teacher a notice of discharge which was legally defective. On the same day that the plaintiff appealed the notice of discharge to the superior court, the school district issued a second, legally adequate notice. The trial court and the Washington Supreme Court upheld the teacher’s discharge. In doing so, the latter court said that it recognized the general rule that the jurisdiction of an administrative agency over a particular matter ends when the decision is appealed to the court. Id. The reason for this rule was that the court’s jurisdiction must be complete and not subject to being interfered with or frustrated by concurrent actions by the administrative body. The Washington Supreme Court affirmed the action of the trial court because when the school district issued the second notice, the appeal from the notice of discharge was limited to the court clerk’s act of receiving a notice of appeal. Id. It emphasized that the trial court had taken no action and that the plaintiff was in no way prejudiced. This case represents a close call on an exceptional situation.
In Gagne v. Inhabitants of City of Lewiston, 281 A.2d 579 (Me. 1971), there were substantive issues, but there was also a procedural issue related to the one before this court. The applicable law provided that a board was without authority to grant a company a building exception and to issue a permit for changes to a structure unless it ruled that the structure as changed was not substantially more detrimental or injurious to the neighborhood than the existing structure. The Maine Supreme Court construed this condition to require a finding of fact by the board. The issue was, “Can the absence of this jurisdictional finding be cured by another vote after the Plaintiffs have begun their appeal to the Superior Court by commencing a civil action ... ?” Id. at 583. The court reviewed some authority and stated:
However, we consider the better reasoned concept of the nature of an appeal to be that the filing of an appeal removes the cause from the administrative tribunal to the Superior Court. We hold that the appeal terminates the *430authority of the tribunal to modify its decisions unless the court remands the matter to the tribunal for its further action, thereby reviving its authority.
Id.
The Gagne court recognized that administrative determinations are subject to change when the matter has not passed beyond the control of the administrative authorities, but that when the jurisdiction of the administrative body has terminated, there is no longer the power to change that determination.
In Commission v. Continental, 143 Colo. 590, 355 P.2d 83 (1960), a plaintiff filed a complaint before a commission, alleging unlawful discrimination. In due time, the commission entered its findings of fact, its conclusions of law, and an order finding the defendant, an airline, guilty of discrimination and unfair employment practices, and it ordered the airline to cease and desist. The order was signed only by the coordinator of the commission. The airline filed a petition in the district court, seeking judicial review. The district court remanded the cause to the commission and ordered it to make certain findings and then return the record to the appellate court. Without further notice to the parties or a hearing, the commission entered new findings and new orders, and the enlarged record was sent back to the district court. The district court held that the proceedings for which the review had been instituted had been withdrawn by the commission and that the questions raised in the proceedings were moot. The Colorado Supreme Court considered dismissing the writ of error because there was no final order, but it concluded that the cause should be remanded for further consideration by the trial court.
In making this decision, the Colorado Supreme Court considered whether the commission had jurisdiction on its own motion to vacate, alter, amend, or in any manner enlarge upon an order for which proceedings are directed. It relied in part upon a specific statute and stated:
Even in the absence of the language of the statute this court has repeatedly held that an administrative agency is without authority to change, alter or vacate an order while review proceedings are pending in the district court, even as an inferior court is without authority to vacate or modify a *431judgment after writ of error has issued out of this court directed to such judgment.
Id. at 594, 355 P.2d at 86.
In Young v. Eldridge, 243 S.W.2d 483 (Ky. 1951), a circuit court reviewed orders of the Department of Motor Transportation (DMT) relative to renewing, granting, or refusing certain certificates to operate trucks. Truck operators had filed protests to a renewal, and the DMT denied the motion to renew and a motion to operate a route identical to one the operators already had. The applicant seeking renewal appealed, and the action remained on the court’s docket.
Another party filed a complaint, alleging that the applicant was in violation of its certificate and was encroaching upon it. The applicant sought a certificate for unrestricted operation from Louisville to Jamestown over what was called a “ ‘slightly different route.’ ” Id. at 485. The other parties protested the filing of the second application while the DMT’s ruling was pending on appeal in the circuit court. The DMT acted, granting a certificate to operate from Louisville to Somerset and from Louisville to Jamestown. This ruling was affirmed by the circuit court, which also affirmed the ruling where the DMT had denied the previously mentioned motion to reinstate a certificate. In making its decision, the Young court stated, “[T]he [DMT] was without jurisdiction to hear [the applicant’s] application for an unrestricted certificate from Louisville to Jamestown while the appeal was pending from the [DMT’s] ruling wherein it refused to renew certificate No. 110 or to grant a new certificate covering an identical route.” Id. at 485.
However, the Young court held that the DMT would have jurisdiction for a new application by the same applicant for a different route.
I can find no Nebraska cases directly discussing this matter. However, in Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp., 183 Neb. 229, 231, 159 N.W.2d 310, 313 (1968), the Nebraska State Railway Commission (commission) had entered an order authorizing the appellant to engage in operations as a contract carrier by motor vehicle to transport “cash, letters, checks and other commercial papers, data processing materials, and other documents and records thereto related” over two regular *432routes. After the appeal was perfected, the commission entered an “order nunc pro tunc” correcting the order because there was no comma between the words “ ‘cash’ ” and “ ‘letters’ ” in the above-quoted matter in the order, but a comma between those words was in the application. Id. The Nebraska Supreme Court held that the commission was allowed to do this. In so doing, it stated:
“An appeal or error proceeding, properly perfected, deprives the trial court of any power to amend or modify the record as to matters of substance, but the pendency of an appeal or writ of error ordinarily does not deprive the trial court of the power to correct its record so that it will truly set forth the proceedings as they actually occurred, even though the correction of the error deprives the appellant of his ground of appeal.”
Id. at 231-32, 159 N.W.2d at 313.
The Supreme Court then stated that the same rule applies to administrative agencies. The court went on to consider the merits of whether or not the action taken by the commission gave rise to a true nunc pro tunc order, concluded that it did, and affirmed the trial court’s decision.
From a study of the cases I cite and discuss above, I conclude that the proceedings as conducted by the trial court in this case violated two basic but consistent notions: one, that a proceeding on an application for certain relief cannot be litigated in an appellate tribunal at the same time as the same matter is litigated in a trial-level tribunal, and two, that litigants such as the teVeldes cannot maintain the validity of an initial order on the appeal level while at the same time instituting and maintaining a new action at the lower level just in case their position in support of the first proceedings should prove to be wrong. I do not think the district court’s permission for the teVeldes to file the subsequent action gave the subsequent action any validity.
If my position were adopted, this case would determine that no valid decision has been made on the teVeldes’ application and that therefore, they could file a new application when these proceedings are over. Upon the basis of Pokorny v. City of Schuyler, 202 Neb. 334, 275 N.W.2d 281 (1979), I am inclined to think this action would not prevent a full proceeding on any new application, but that issue can be settled only in a proceeding on any *433future application the teVeldes might see fit to institute, not in this appeal.