Turnbull v. County of Pawnee
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Decisions
of the Nebraska Court of Appeals
turnbull v. county of pawnee
Cite as 19 Neb. App. 43
43
infer that he must have meant it because somebody actually
started a fire at the repair shop 2 days later. Such an inference,
without any evidence to connect Thomas to the subsequent
fire, is certainly prejudicial and suggests a finding of guilt on
improper grounds.
Because there was no connection between Thomas and the
subsequent fire, we conclude that there was little or no probative value to the fire evidence, and any minimal probative value
would be outweighed by the danger of unfair prejudice. See
State v. Sellers, supra (evidence of handguns located at time
of defendant’s arrest lacked probative value and was unfairly
prejudicial because there was no connection between handguns
and defendant). The district court abused its discretion in not
excluding this evidence, and this error requires that we reverse,
and remand for a new trial.
V. CONCLUSION
The district court erred in overruling Thomas’ objections to
the State’s proffer of evidence concerning the fire at Haynes’
repair shop, because there was no evidence linking Thomas to
the fire. We reverse, and remand for a new trial.
R eversed and remanded for a new trial.
Michael Turnbull, appellant, v. County
Pawnee, Nebraska, appellee.
of
___ N.W.2d ___
Filed May 31, 2011. No. A-10-489.
1. Judgments: Appeal and Error. Neb. Rev. Stat. § 25-1901 (Reissue 2008) provides for a district court to review the judgment rendered or final order made by
a tribunal inferior in jurisdiction and exercising judicial functions.
2. Administrative Law: Public Officers and Employees: Claims: Notice: Breach
of Contract: Appeal and Error. Where an original breach of contract action
requires compliance with the county claims statute, Neb. Rev. Stat. § 23-135
(Reissue 2007), to provide sufficient notice to a county of the claim, when an
employee seeks judicial review of a final order rendered by an administrative
body, the county is on full notice of the claim by virtue of the employee’s compliance with agreed-upon procedures for asserting the claim at the administrative level.
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3. Judgments: Appeal and Error. Neb. Rev. Stat. § 25-1901 (Reissue 2008) specifically provides that a judgment rendered or final order made by any tribunal,
board, or officer exercising judicial functions and inferior in jurisdiction to the
district court may be reversed, vacated, or modified by the district court.
4. ____: ____. Neb. Rev. Stat. § 25-1903 (Reissue 2008) provides that proceedings
to obtain reversal, vacation, or modification of the judgment or final order of an
inferior tribunal, board, or officer exercising judicial functions shall be by petition
entitled “petition in error,” setting forth the errors complained of.
5. Records: Appeal and Error. Neb. Rev. Stat. § 25-1905 (Reissue 2008) provides that a plaintiff in error shall file with his or her petition a transcript of the
proceedings or a praecipe directing the tribunal, board, or officer to prepare the
transcript of the proceedings.
6. Records: Judgments: Appeal and Error. Neb. Rev. Stat. § 25-1905 (Reissue
2008) provides that the transcript required to be filed with a petition in error
shall contain the final judgment or order sought to be reversed, vacated, or
m
odified.
7. Administrative Law: Appeal and Error. A board or tribunal exercises a judicial
function if it decides a dispute of adjudicative fact or if a statute requires it to act
in a judicial manner.
8. Evidence: Proof: Words and Phrases. Adjudicative facts are facts which relate
to a specific party and are adduced from formal proof.
9. ____: ____: ____. Adjudicative facts pertain to questions of who did what, where,
when, how, why, and with what motive or intent. They are roughly the kind of
facts which would go to a jury in a jury case.
10. Appeal and Error. To perfect a petition in error, Neb. Rev. Stat. § 25-1903
(Reissue 2008) directs the petitioner to file the petition to the district court setting
forth the errors complained of.
11. Jurisdiction: Appeal and Error. Compliance with Neb. Rev. Stat. §§ 25-1903
and 25-1905 (Reissue 2008) is jurisdictional.
Appeal from the District Court for Pawnee County: Daniel
E. Bryan, Jr., Judge. Affirmed.
Timothy S. Dowd, of Dowd, Howard & Corrigan, L.L.C.,
for appellant.
Christine A. Lustgarten and Sophia M. Alvarez, of Dornan,
Lustgarten & Troia, P.C., L.L.O., for appellee.
Irwin, Sievers, and Cassel, Judges.
Irwin, Judge.
I. INTRODUCTION
Michael Turnbull is an employee of Pawnee County, Nebraska
(the County). He used an administrative grievance process to
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challenge discipline his employer had imposed. Dissatisfied
with the result of that process, he brought an action in district
court. The district court dismissed Turnbull’s action, concluding that Turnbull was required to comply with the petition in
error statutes, Neb. Rev. Stat. § 25-1901 et seq. (Reissue 2008).
Specifically, the district court concluded Turnbull had failed to
provide a record of the proceedings held before the administrative body, as required by § 25-1905. On the record provided to
us, we affirm the trial court’s conclusion that Turnbull failed
to comply with the jurisdictional prerequisites of § 25-1901 et
seq. 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.
II. BACKGROUND
We initially note that this case presents the court with
some peculiar and difficult issues concerning the record and
attempting to stitch together what actually happened below.
Categorically unnecessary effort, time, and resources were
expended by the clerk of the Court of Appeals, Court of
Appeals staff, and others to finally retrieve what record was
made by the court reporter of the district court. In addition,
Turnbull’s brief contains very little reference to the record to
indicate the source of facts represented as the chronology of
the case. Additionally, the unusual procedural history of this
case and the lack of any meaningful record of what occurred
at the administrative level, as discussed more fully below, have
further contributed to the challenges in properly representing
the background of this case.
In March 2006, the Nebraska Public Employees, Local
No. 251, union and the County executed a collective bargaining agreement concerning, among other things, wages,
hours, and terms and working conditions for employees of
the Pawnee County Road Department. The agreement was to
be in force from and after January 1, 2006, until December
31, 2008. Article 21 of the agreement sets forth the parties’
agreement concerning discipline and specifies that “[a]ny disciplinary action or measure imposed upon an employee may
be processed as a grievance through the grievance procedure
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. . . .” Article 23 of the agreement sets forth the grievance procedure.
On May 28, 2009, the County notified Turnbull by letter that
an allegation was made against him and that he was potentially
subject to disciplinary action. The County informed Turnbull
that an informal hearing was scheduled for June 3 and that he
would have an opportunity to respond to the allegations, that he
was entitled to attend the hearing with a union or legal representative, and that he was entitled to “present evidence of mitigation” at that time. Turnbull has not provided this court with
any record of the hearing or what transpired at the hearing,
other than the disciplinary letter discussed below and “[t]yped
notes” taken by Turnbull’s union representative.
On June 11, 2009, the County notified Turnbull by letter that he was being suspended without pay for 30 days. In
the letter, the County indicated that Turnbull was found to
have violated safety policies set forth in the “Pawnee County
Handbook.” The letter also detailed Turnbull’s actions that
constituted the violation. The letter indicated that there had
been two witnesses of the event. The letter also indicated that
Turnbull had been present at the informal hearing and set forth
what Turnbull had admitted and what he had denied concerning the allegations.
On June 22, 2009, Turnbull executed an official grievance
form, authorizing the union to act as his representative in the
disposition of his grievance. According to article 23 of the collective bargaining agreement, the grievance process for challenging discipline is a multistep process. The first step requires
the grievant to attempt to resolve the matter with the county
highway superintendent. The second step requires the grievant
to present a formal written grievance to the County’s board of
commissioners (the Board). The third step provides that the
grievant “may appeal” the decision of the Board through voluntary binding arbitration or that, in cases where the grievant
elects not to participate in arbitration, the case “may be proc
essed through the Pawnee County District Court.”
On June 22, 2009, Turnbull’s grievance was presented to
his supervisor, the county highway superintendent, in accord
ance with step one of the grievance process. On June 27, the
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s
upervisor denied the grievance. We have not been provided
any record of whether Turnbull had any type of hearing before
the supervisor or what actually happened during that step of the
grievance process.
On June 30, 2009, Turnbull’s grievance was presented to the
Board, in conjunction with step two of the grievance process.
On July 7, the Board notified Turnbull by letter that the Board
would hear his grievance on July 14. On July 14, the Board
denied the grievance. We have been presented with no substantial record of what happened during that step of the grievance
process, other than the portions of “[t]yped notes” taken by
Turnbull’s union representative. Those notes indicate that the
Board was asked to overturn the discipline and that the Board
indicated it would take no action on that date.
On July 21, 2009, Turnbull notified the County by letter that
he had “chosen to appeal the Board[’s] decision to deny [his]
grievance and proceed to Pawnee [County] District Court.” On
July 30, Turnbull filed a complaint in the district court in which
he alleged that the County’s discipline of him was a “breach of
contract.” Turnbull affirmatively alleged that he had complied
with the grievance procedure set forth in the collective bargaining agreement, that his grievance was denied, and that he had
elected to proceed to the district court as opposed to binding
arbitration. Turnbull made no allegations concerning due proc
ess or denial of the opportunity to present evidence or have
a meaningful hearing at the administrative level. On August
10, the County filed an answer in which it generally admitted
the allegations of the complaint, but denied that the discipline
imposed constituted a breach of contract.
On April 12, 2010, the parties appeared before the district
court. The court initially noted that “[t]his [case] is a review
. . . regarding a disciplinary action against . . . Turnbull.”
Neither party objected to the case’s being characterized as a
review of a disciplinary proceeding. The court then proceeded
to conduct a full evidentiary trial on Turnbull’s complaint. The
parties stipulated to the introduction of a variety of exhibits,
including the collective bargaining agreement and the letters
and documents indicating Turnbull’s compliance with the grievance procedure that are discussed above. None of the exhibits
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offered by either party, however, constituted a transcript of the
proceeding before the Board, and the record from the district
court does not include such a transcript of the proceeding
before the Board. See § 25-1905 (requiring party filing petition
in error to also file transcript of proceeding occurring before
board). At the conclusion of the trial, the district court took the
matter under advisement.
On April 16, 2010, the district court entered an order dismissing Turnbull’s complaint. In the order, the district court
addressed the issue of jurisdiction, noting that the court was
obligated to determine whether it had jurisdiction before proceeding to the merits of the complaint. The court noted that
cases of this sort, appealing discipline imposed by administrative bodies, are usually received by the district court through
petition in error proceedings under § 25-1901 et seq.
The district court then determined that Turnbull’s complaint
needed to be considered either (1) an action at law for breach
of a contract or (2) a request for review of an administrative action for discipline. The court concluded that it lacked
jurisdiction under either characterization. First, the court concluded that if Turnbull’s action were considered an action
at law for breach of contract, Turnbull would be required to
comply with statutory provisions for bringing a claim against
a county, including notice provisions that are required to confer jurisdiction on the district court. See Jackson v. County of
Douglas, 223 Neb. 65, 388 N.W.2d 64 (1986). Next, the court
concluded that if Turnbull’s action were considered a review
of a disciplinary proceeding, Turnbull would be required
to comply with statutory provisions for bringing a petition
in error, including jurisdictional requirements set forth in
§ 25-1901 et seq.
The district court ultimately concluded that Turnbull’s complaint should be characterized not as an original breach of
contract action, but, rather, as seeking a review of disciplinary
action taken by his employer. As such, the court concluded
that Turnbull was required to comply with statutory provisions
for bringing a petition in error. The court then noted that the
parties had failed to provide a transcript of the proceedings
that occurred before the Board, that its review was limited to
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the record created before that tribunal, and that without such
a record, it lacked jurisdiction. Having taken the matter under
advisement after completion of the trial, the court ultimately
dismissed the complaint. This appeal followed.
III. ASSIGNMENT OF ERROR
Turnbull’s sole assignment of error is that the district court
erred in dismissing his complaint for lack of jurisdiction.
IV. ANALYSIS
This case began, at the administrative level, with Turnbull’s
contention that the discipline imposed upon him by his
employer, the County, was inappropriate. Turnbull followed the
procedures outlined in the collective bargaining agreement for
challenging that discipline. At its core, this action is an appeal
from the administrative denial of Turnbull’s grievance related
to the discipline imposed. Turnbull’s attempt to cast this case
as a breach of contract action does not change the fact that at
its core, the action was brought in the district court to appeal
the decision of the administrative body, the Board, denying
his grievance.
[1,2] In Pierce v. Douglas Cty. Civil Serv. Comm., 275 Neb.
722, 748 N.W.2d 660 (2008), the Nebraska Supreme Court
recognized the difference between an original breach of contract action filed in the district court contending a breach of a
collective bargaining agreement and a review of an administrative decision on a grievance related to employee discipline.
Although Pierce involved a county of more than 300,000
inhabitants, for which some specific statutory guidance exists
in Neb. Rev. Stat. § 23-2501 et seq. (Reissue 2007), the
fundamental difference between the two types of proceedings is equally applicable here. As noted in Pierce, when an
employee brings an original breach of contract action, the
employee is not appealing from a final order of the administrative body, especially where the administrative body has no
authority to hear appeals unrelated to disciplinary actions. In
contrast, § 25-1901 provides for a district court to review the
judgment rendered or final order made by a tribunal inferior
in jurisdiction and exercising judicial functions. Where an
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original breach of contract action requires compliance with
the county claims statute, Neb. Rev. Stat. § 23-135 (Reissue
2007), to provide sufficient notice to the county of the claim,
when an employee seeks judicial review of a final order
rendered by the administrative body, the county is on full
notice of the claim by virtue of the employee’s compliance
with agreed-upon procedures for asserting the claim at the
administrative level. See Pierce v. Douglas Cty. Civil Serv.
Comm., supra.
[3-6] Although § 23-2501 et seq. specifically includes provisions that clearly provide that an employee’s request for
review of a final decision of the civil service commission in
a county of more than 300,000 inhabitants is to be by way of
a petition in error pursuant to § 25-1901 et seq., the lack of
such specific provisions in Neb. Rev. Stat. § 23-2534 et seq.
(Reissue 2007) governing counties of under 150,000 inhabitants does not cause us to conclude that Turnbull was not
required to follow the petition in error provisions of § 25-1901
et seq. Section 25-1901 specifically provides that “[a] judgment rendered or final order made by any tribunal, board, or
officer exercising judicial functions and inferior in jurisdiction
to the district court may be reversed, vacated, or modified by
the district court . . . .” (Emphasis supplied.) Section 25-1903
provides that the proceedings to obtain reversal, vacation, or
modification “shall be by petition entitled petition in error,”
setting forth the errors complained of. Section 25-1905 provides in part that “[t]he plaintiff in error shall file with his
or her petition a transcript of the proceedings or a praecipe directing the tribunal, board, or officer to prepare the
transcript of the proceedings.” (Emphasis supplied.) Section
25-1905 also provides that the transcript “shall contain the
final judgment or order sought to be reversed, vacated, or
modified.” (Emphasis supplied.)
The district court concluded that § 25-1901 et seq. applied
to Turnbull’s action and that his failure to comply with the
statutory prerequisites for properly bringing a petition in error
prevented the court from obtaining jurisdiction. We agree.
Section 25-1901 et seq. statutorily mandates that a party seeking judicial review of an administrative determination must
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comply with the petition in error prerequisites when the review
sought is of a final order made by a tribunal, board, or officer
exercising judicial functions. We conclude that these provisions
are applicable to Turnbull’s actions because the Board exercised judicial functions.
[7-9] A board or tribunal exercises a judicial function if it
decides a dispute of adjudicative fact or if a statute requires
it to act in a judicial manner. Camp Clarke Ranch v. Morrill
Cty. Bd. of Comrs., 17 Neb. App. 76, 758 N.W.2d 653 (2008).
Adjudicative facts are facts which relate to a specific party and
are adduced from formal proof. Id. Adjudicative facts pertain to
questions of who did what, where, when, how, why, and with
what motive or intent. Id. They are roughly the kind of facts
which would go to a jury in a jury case. Id.
In the present case, Turnbull was accused of violating a safety
provision. He first received an informal hearing, and when provided notice of the hearing, he was informed that he would
have an opportunity to respond to the allegations, have a union
or legal representative, and present evidence of mitigation. We
have no formal record of what happened at the informal hearing, but Turnbull was suspended without pay for 30 days after
the hearing. Turnbull then filed a grievance, as provided for in
the collective bargaining agreement. Turnbull’s grievance was
heard first by his supervisor and then by the Board. We have
no formal record of what happened at either step of the grievance process, but the questions to be resolved at each stage
involved Turnbull’s alleged actions and pertained to questions
of what he did, where, when, how, why, and with what motive
or intent; the questions concerned whether Turnbull violated a
safety provision, whether there was any mitigating evidence,
and the appropriate discipline to be imposed. As such, the
questions being resolved at each stage of the grievance process
were adjudicative in nature.
Because the questions being resolved were adjudicative in
nature and because the Board was engaging in a judicial function in hearing Turnbull’s appeal of the denial of his grievance
related to the discipline imposed, the petition in error statutes
were applicable and dictated the proper steps for perfecting
jurisdiction in the district court.
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[10,11] To perfect a petition in error, § 25-1903 directs the
petitioner to file the petition to the district court setting forth
the errors complained of. McNally v. City of Omaha, 273 Neb.
558, 731 N.W.2d 573 (2007). In addition, § 25-1905 directs
the petitioner to file with his or her petition a transcript of
the proceedings or a praecipe directing the tribunal, board, or
officer to prepare the transcript of the proceedings. McNally v.
City of Omaha, supra. The Nebraska Supreme Court has held
that compliance with these statutory provisions is jurisdictional. Id.
A review of the transcript in this case indicates that Turnbull
filed a complaint in the district court purporting to set forth
a claim for breach of contract. Although he recounted in the
complaint that he had filed a grievance and that it had been
denied, he did not assert anywhere in the complaint that
the Board had committed any errors to be complained of.
Even when the complaint is read very liberally to impliedly
assert that the Board generally erred in denying his grievance, Turnbull did not file with his complaint a transcript of
the proceedings or a praecipe directing the Board to prepare a
transcript of the proceedings.
The plain language of the statutes requires that for jurisdiction to attach, the transcript of proceedings or praecipe must
be filed specifically with the petition in error in the court
requested to review such judgment. River City Life Ctr. v.
Douglas Cty. Bd. of Equal., 265 Neb. 723, 658 N.W.2d 717
(2003). Section 25-1905 also plainly indicates that the transcript must contain the final judgment or order sought to be
reversed, vacated, or modified. River City Life Ctr. v. Douglas
Cty. Bd. of Equal., supra. Turnbull’s failure to comply with
these provisions precluded jurisdiction from being conferred
on the district court, and the court correctly concluded that it
lacked jurisdiction.
On appeal, Turnbull has asserted that he was not required
to comply with the petition in error statutes and that he was
authorized to file an original breach of contract action because
the parties had contractually agreed to such action in the collective bargaining agreement. Without addressing the question
of whether the parties could have so contracted to authorize a
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grievant to forgo the statutory petition in error procedure, we
disagree with Turnbull’s characterization of the collective bargaining agreement.
Turnbull asserts that “[t]he parties contractually agreed that
if this issue could not be resolved under the first two (2) steps
of the Grievance procedure, then it would be treated as a
breach of contract action, thereby allowing the employee to file
a breach of contract action in the District Court . . . .” Brief for
appellant at 6. The language of the collective bargaining agreement, however, does not indicate that the parties had agreed
that the matter would be treated as a breach of contract action.
Rather, the relevant language of the agreement indicates merely
that “[c]ases where the grievant chooses not to participate
in binding arbitration may be processed through the Pawnee
County District Court.” There is no mention whatsoever of
“breach of contract” or any right to file an original action at
law. Indeed, as the agreement states, actions properly following
the petition in error statutes would be “processed through the
[relevant county’s d]istrict [c]ourt.” We thus find no merit to
this assertion of Turnbull.
Similarly, we find no merit to Turnbull’s assertion that the
Nebraska Supreme Court’s decision in Transport Workers of
America v. Transit Auth. of City of Omaha, 205 Neb. 26, 286
N.W.2d 102 (1979), somehow supports Turnbull’s notion that
it is proper to challenge the discipline imposed and the denial
of his grievance by way of an original breach of contract
action. That case involved a suit by a union asserting that an
employer had failed to provide short-term disability benefits as
contractually agreed to in a collective bargaining agreement.
The union sought a declaratory judgment and an accounting,
and it instituted its proceedings before the Commission of
Industrial Relations. The Nebraska Supreme Court held that
the Commission of Industrial Relations was without authority
to grant declaratory or equitable relief and had no authority to
hear a breach of contract action.
The present case is markedly distinguishable from Transport
Workers of America. Unlike the issue in that case, the issue in
the present case is purely one of the appropriateness of discipline imposed upon a finding that an employee violated safety
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policies. The issues do not involve declaratory relief, equitable
relief, or traditional damages matters inherent in breach of contract actions. Moreover, in the present case, the collective bargaining agreement specifically set forth the grievance process
and specifically provided for a process of appealing adverse
decisions; there is no indication in the Supreme Court’s opinion in Transport Workers of America that any such provisions
existed in that case. Although Transport Workers of America
might stand for the proposition that a breach of contract action
is properly brought in district court, its holding does not support Turnbull’s attempt to appeal his discipline under the guise
of a breach of contract action in the present case. We find this
assertion to be without merit.
We also note that Turnbull also asserts that the proceedings
before the Board in step two of the grievance process did not
involve an evidentiary hearing or an adjudication hearing in
which an aggrieved employee could compel witnesses to testify
or subject adversarial witnesses to cross-examination. Turnbull
asserts that the only opportunity he had to introduce evidence
establishing his position was at the hearing in district court.
As we have noted above, we have no record of what occurred
at the informal hearing before Turnbull’s supervisor, although
the notice of hearing indicated to Turnbull that he would have
an opportunity to present mitigating evidence at that hearing.
We have no record of what occurred at step one or step two
of the grievance process, although the collective bargaining
agreement specifies that at step two, the Board is required to
“confer” with the grievant and to “consult[] with all necessary
levels of supervision” in the preparation of its response. The
collective bargaining agreement does not appear to require the
conducting of an evidentiary hearing by the Board, but it also
does not foreclose such a hearing or indicate that the grievant
is not allowed to present evidence, compel witnesses, or crossexamine adversaries. We have no record of what occurred at
the hearing before the Board, and on the record presented to us,
there is no way for us to conclude whether the lack of a record
is a result of Turnbull’s failing to attempt to make a record or
request a record or a result of the Board’s not permitting such
a record.
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We have concluded above that Turnbull failed to satisfy the
jurisdictional prerequisites for perfecting a petition in error
proceeding by failing to file a proper petition setting forth the
assertions of error committed by the Board and by failing to
file a transcript of the proceedings that included the final order
of the Board. Had Turnbull cleared those jurisdictional hurdles,
there might have arisen a subsequent issue concerning the lack
of a record from the hearing before the Board because, as the
district court found, when reviewing a petition in error, the
district court is restricted to the record created before the lower
tribunal. See Crown Products Co. v. City of Ralston, 253 Neb.
1, 567 N.W.2d 294 (1997). If Turnbull was denied the opportunity to make a proper record or to present evidence in his
defense before the Board, he may well have been able to raise
due process concerns before the district court. See id.
In the present case, however, we conclude that Turnbull
failed to perfect jurisdiction in the district court even aside
from the lack of presentation of any record of what actually
happened in the hearing before the Board. Moreover, as noted
above, Turnbull’s complaint in the district court raised no
due process assertions of his being denied the opportunity to
receive a fair and meaningful hearing or to present evidence
before the Board. We find no merit to Turnbull’s assertions
that his only opportunity to present evidence was in the district court.
Finally, we note that the process advocated by Turnbull
would arguably render meaningless the grievance process
agreed to by the parties in the collective bargaining agreement.
Turnbull has attempted to frame his proceedings in the district
court as an original law action for breach of contract, requiring
no review of the lower tribunal proceedings and no deference
to the administrative conclusions concerning his discipline
and his grievance. In a proper petition in error proceeding,
the district court determines whether the lower tribunal acted
within its jurisdiction and whether the tribunal’s decision is
supported by sufficient relevant evidence; the review accords
substantial deference to the administrative body. See Crown
Products Co. v. City of Ralston, supra. To permit Turnbull to
simply disregard the entire grievance process and start entirely
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anew with an evidentiary trial before the district court would
be tantamount to encouraging grievants to simply go through
the motions of the grievance process and then seek to litigate
employee disciplinary matters in the district court. We conclude
not only that such action would ignore the intent of the grievance process set forth in the collective bargaining agreement,
but also that it would endorse a legal course of action that does
not appear to have ever before been endorsed in our jurisdiction. We have discovered no prior authority for litigating under
the guise of breach of contract an employee’s dissatisfaction
with his discipline, and Turnbull has pointed us to none. This
further reaffirms our conclusion that Turnbull’s action should
properly be considered as an appeal of the discipline imposed
and the denial of his grievance and not as an original breach of
contract action.
V. CONCLUSION
We conclude that Turnbull’s “breach of contract” action is
more properly characterized as an attempt to appeal the administrative denial of his grievance concerning discipline imposed
for his violation of safety policies. As a result, Turnbull was
obligated to satisfy statutory prerequisites for perfecting jurisdiction in the district court through petition in error proceedings. He failed to do so, and the district court properly dismissed his action for want of jurisdiction. We affirm.
Affirmed.
Model Interiors, appellee and cross-appellant, v.
2566 Leavenworth, LLC, a corporation, and
Michael Mapes, an individual, appellants
and cross-appellees.
___ N.W.2d ___
Filed May 31, 2011. No. A-10-776.
1. Breach of Contract: Damages. A suit for damages arising from breach of a
contract presents an action at law.
2. Judgments: Appeal and Error. The trial court’s factual findings in a bench trial
of an action at law have the effect of a jury verdict and will not be set aside
unless clearly erroneous.
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