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§ 2-107. Summary Dispositions.

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   (A) Summary Disposition on the Supreme Court's Own Motion.

COMMENT
   Parties may not request disposition under this section of this rule.

   (1) When the court determines that any one or more of the following circumstances exist and are dispositive of the case submitted to the court for decision:

   (a) the judgment is based on findings of fact which are not clearly erroneous;

   (b) the evidence in support of a jury verdict is not insufficient;

   (c) the judgment or order is supported by substantial evidence in the record as a whole; or

   (d) no error of law appears;

and the court also determines that a detailed opinion would have no precedential value, the judgment or order will be affirmed in the following manner: "AFFIRMED. See Neb. Ct. R. App. P. § 2-107(A)(1)."

   (2) When the court determines it lacks jurisdiction the appeal will be dismissed in the following manner: "APPEAL DISMISSED. See Neb. Ct. R. App. P. § 2-107(A)(2)."

   (3) When the court determines that grounds may exist for summary reversal of the order or judgment appealed from, such as a prior controlling appellate decision which is dispositive of the appeal or a clear error of law exists, the court may summarily reverse or reverse and remand. Such disposition may occur only after an order to show cause has issued, citing the appellate decision or law deemed controlling, and the parties have been provided an adequate opportunity to respond.

   (B) Motions for Summary Dismissal or Affirmance.

   (1) A motion to dismiss for lack of jurisdiction may be filed at any time after an appeal has been docketed. Such a motion shall document the claimed lack of jurisdiction by citations to the dispositive portions of the record and to the controlling statutory and case law.

   (2) A motion to affirm on the ground that the questions presented for review are so unsubstantial as not to require argument may be filed after the appellant's brief has been filed or the time for filing has expired. Such a motion shall document the claimed lack of substance of the questions presented by citations to the dispositive portions of the record and to the controlling statutory and case law.

   (3) Where appropriate, a motion to affirm may be joined, in the alternative, with a motion to dismiss.

   (4) The appellant may file written objections opposing the motion within 10 days from the date of service of the motion.

   (5) Upon the filing of objections or the expiration of time allowed therefor, or express waiver of the right to file, a motion for summary disposition shall be considered submitted.

   (6) Motions for summary dismissal or affirmance must be typewritten on 8½‑ by 11‑inch paper.

   (7) The motion and proof of service shall be filed with the Supreme Court Clerk and a copy shall be served upon all other parties or the attorneys of record. Service and proof of service may be made as provided in Neb. Ct. R. Pldg. §§ 6‑1105(b) and 6-1106(e). An original and one copy of any motion, objections, or supporting briefs shall be filed.

   (8) The time for filing briefs under § 2-109 is not extended by the filing of a motion for summary dismissal or affirmance.

See appendix 3 for form.

   (C) Stipulation of Parties for Summary Reversal.

   (1) At any time after an appeal has been docketed the parties may file a stipulation that grounds exist for summary reversal of the order or judgment appealed from, such as a prior controlling appellate decision which is dispositive of the appeal or the existence of a clear error of law. The stipulation must cite the appellate decision or law deemed to be controlling and must be executed by all the parties to the appeal.

   (2) Stipulations for summary reversal must be submitted on 8½‑ by 11‑inch paper and otherwise conform to the requirements set forth in § 2-107(B)(6), (7), and (8) above.

   (D) Suggestion of Mootness in Prison Disciplinary and Postconviction Relief Appeals.

   (1) It is the duty of all parties to an appeal of a prison disciplinary procedure governed by Neb. Rev. Stat. § 83‑4,109 et seq., at all times during the course of an appeal, to inform the appellate court that the defendant is no longer in custody under sentence and that, therefore, the issue of the prison disciplinary procedure is moot.

   It is the duty of all parties to an appeal of a postconviction relief action governed by Neb. Rev. Stat. § 29‑3001 et seq., at all times during the course of an appeal, to inform the appellate court that the defendant is no longer in custody under sentence, which could render the issue of the postconviction relief action moot.

   (2) Form.

   (a) If any party determines that the issue of the prison disciplinary procedure or postconviction relief action has been rendered moot, the party shall so advise the court by filing a "suggestion of mootness" in the form of a motion to dismiss on the ground that the question presented is moot.

   (b) The opposing party or parties may file written objections opposing the motion within 10 days from the date of service of the motion.

   (c) Upon the filing of objections or the expiration of time allowed therefor, or express waiver of the right to file, a motion for summary disposition on the grounds of mootness shall be considered submitted.

   (d) Motions for summary disposition on the grounds of mootness must be submitted on 8½‑ by 11‑inch paper and otherwise conform to filing requirements.

   (e) The motion and proof of service shall be filed with the Supreme Court Clerk and a copy shall be served upon all other parties or the attorneys of record. Service and proof of service may be made as provided in Neb. Ct. R. Pldg. §§ 6‑1105(b) and 6-1106(e). An original and one copy of any motion, objections, or supporting briefs shall be filed.

   (f) The time for filing briefs under § 2-109 is not extended by the filing of a motion for summary disposition on the grounds of mootness.

Rule 7(B)(1) amended August 25, 1993; Rule 7(C) adopted January 23, 1997; Rule 7(B)(7) amended May 29, 1997; Rule 7(A)(3) adopted September 19, 2001; Rule 7(C) amended to (7)(D) September 19, 2001; Rule 7(C) adopted September 19, 2001. Renumbered and codified as § 2-107, effective July 18, 2008. §§ 2-107(B)(7) and (D)(2)(e) amended August 27, 2008; § 2-107(B)(7) and (D)(2)(e) amended June 6, 2012.

This page was last modified on Monday, July 29, 2013