State ex. rel. Malone v. Baldonado-Bellamy

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/23/2020 09:12 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        307 Nebraska Reports
                              STATE EX REL. MALONE v. BALDONADO-BELLAMY
                                             Cite as 

307 Neb. 549



                           State of Nebraska ex rel. Kevin W. Malone,
                            appellant, v. Megan Baldonado-Bellamy,
                            in her official capacity as official court
                              reporter, District Court for Douglas
                               County, Nebraska, and John Friend,
                                in his official capacity as clerk of
                                  the District Court for Douglas
                                   County, Nebraska, appellees.
                                                   ___ N.W.2d ___

                                        Filed October 23, 2020.   No. S-19-856.

                 1. Judgments: Jurisdiction: Appeal and Error. 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.
                 2. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
                    sented for review, it is an appellate court’s duty to determine whether it
                    has jurisdiction to decide them.
                 3. Mandamus. A person choosing to seek speedy relief by a writ of man-
                    damus pursuant to Neb. Rev. Stat. § 84-712.03(1)(a) (Cum. Supp. 2018)
                    must follow the procedural requirements set forth in Neb. Rev. Stat.
                    §§ 25-2156 through 25-2169 (Reissue 2016).
                 4. ____. An action to procure the issuance of a writ of mandamus is not
                    begun until a motion and affidavit, or a petition verified positively, is
                    filed in the district court.
                 5. Mandamus: Jurisdiction. The filing of a motion and affidavit or a veri-
                    fied petition is a jurisdictional requirement before a district court may
                    issue a writ of mandamus, and until such filing is made, the court does
                    not have jurisdiction over an action for writ of mandamus.
                 6. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction
                    to adjudicate the merits of a claim, issue, or question, an appellate court
                    also lacks the power to determine the merits of the claim, issue, or ques-
                    tion presented to the lower court.
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                  307 Nebraska Reports
         STATE EX REL. MALONE v. BALDONADO-BELLAMY
                        Cite as 

307 Neb. 549

   Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Appeal dismissed.
  Bradley H. Supernaw and Richard L. Boucher, of Boucher
Law Firm, for appellant.
   Douglas J. Peterson, Attorney General, and Danielle Rowley
for appellee Megan Baldonado-Bellamy.
  Donald W. Kleine, Douglas County Attorney, Joshua R.
Woolf, Tess M. Moyer, and Timothy Coffey, Senior Certified
Law Student, for appellee John Friend.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
   Miller-Lerman, J.
                       NATURE OF CASE
   Kevin W. Malone appeals the order of the district court for
Douglas County which declined to issue a writ of mandamus
which he sought pursuant to Neb. Rev. Stat. §§ 84-712 et seq.
(Reissue 2014 & Cum. Supp. 2018) (public records statutes)
in order to obtain an audio recording of his criminal trial. The
district court determined that the public records statutes were
inapplicable to Malone’s request for the audio recording and
that access to the record of court proceedings was governed
by court rules rather than the public records statutes. Malone
claims that the court erred when it determined that the pub-
lic records statutes did not entitle him to a copy of the audio
recording of his trial.
   The court reporter and the clerk of the district court from
whom Malone sought to obtain the audio recording argue on
appeal that in addition to the basis upon which the district
court denied mandamus, denial was proper for other reasons,
including the contention that the district court lacked juris-
diction because Malone failed to file a verified petition or a
motion and affidavit in support of his request for a writ of
mandamus. We agree that the district court lacked jurisdiction
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                  307 Nebraska Reports
         STATE EX REL. MALONE v. BALDONADO-BELLAMY
                        Cite as 

307 Neb. 549

of this action for writ of mandamus, and as a result, we lack
jurisdiction of this appeal. We therefore dismiss this appeal for
lack of jurisdiction.
                   STATEMENT OF FACTS
   Following a jury trial in 2017, Malone was convicted of
motor vehicle homicide, manslaughter, leaving the scene of
a personal injury accident resulting in serious bodily injury
or death, and driving without an ignition interlock device.
On appeal, the Nebraska Court of Appeals rejected Malone’s
claims of insufficient evidence and excessive sentences and
affirmed his convictions and sentences. State v. Malone, 

26 Neb. Ct. App. 121

, 

917 N.W.2d 164

(2018).
   During the direct appeal of his convictions, Malone reviewed
the bill of exceptions from his trial. Following his review,
Malone believed that the trial record was incomplete. Malone
had testified in his defense at the trial, and he believed that
an exchange between himself and the prosecutor on cross-
examination had been omitted. Malone thereafter made efforts
to confirm his suspicion that the exchange had been omitted
and to correct the record.
   In April 2018, Malone sent a letter to Megan Baldonado-
Bellamy, the court reporter who had been assigned to his trial.
In the letter, Malone stated his belief that the exchange was
missing. He asked Baldonado-Bellamy to check the audio
recording of the trial and to provide documentation that the
exchange had been made part of the record. Baldonado-Bellamy
replied to Malone’s letter with a letter in which she stated that
she had listened to the audio recording and that the transcript
that had been provided was accurate.
   In June 2018, Malone sent a second letter to Baldonado-
Bellamy and he sent a request to the district court; in both
documents, Malone requested that Baldonado-Bellamy pro-
vide him copies of the audio recording made of his trial.
The judge in Malone’s criminal trial replied with a letter in
which she stated that she had “reviewed the record” and that
Malone’s “claim that there is testimony missing from the
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
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307 Neb. 549

official record/Bill of Exceptions is unfounded.” The judge
concluded that Malone had been “provided with the bill of
exceptions as requested.”
    In July 2018, Malone filed a document in his criminal case
in which he requested that the clerk of the district court pro-
vide an audio recording of his trial. Malone also sent a letter to
John Friend, the clerk of the district court for Douglas County,
in which he described the letter as a “follow up” to the court
filing and requested, inter alia, copies of the audio recording
of his trial.
    Also in July 2018, Malone sought assistance from the
Nebraska Attorney General’s office in obtaining the audio
recording of his trial. An assistant attorney general responded
to Malone’s request with a letter stating the Attorney General’s
office had considered Malone’s request in accordance with the
public records statutes and had concluded that the request for
an audio recording of his trial was not covered by the public
records statutes and that therefore, his request required no
further action. Malone sent a letter to the assistant attorney
general expressing his disagreement with her conclusions; the
assistant attorney general responded with a letter confirm-
ing her earlier conclusions but informing Malone he had “the
option under Neb. Rev. Stat. § 84-712.03 to pursue this matter
in a court of law.”
    On January 17, 2019, Malone filed a “Complaint for Writ
of Mandamus” in the district court. He asserted that the
action was authorized pursuant to § 84-712.03(1)(a), which
provides that “[a]ny person denied any rights granted by sec-
tions 84-712 to 84-712.03 may elect to . . . [f]ile for speedy
relief by a writ of mandamus in the district court within
whose jurisdiction the state, county, or political subdivision
officer who has custody of the public record can be served[.]”
Malone named Baldonado-Bellamy and Friend as respond­
ents. Malone alleged that he was “entitled to a p[er]emptory
writ of mandamus” requiring Baldonado-Bellamy and Friend
to provide copies or allow inspection of certain records he
had requested in accordance with the public records statutes.
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
                        Cite as 

307 Neb. 549

Malone attached copies of his April 2018 letter to Baldonado-
Bellamy and his July 2018 letter to Friend to support his
assertion that both had “a clear duty to provide the requested
documents pursuant to the Nebraska Public Records Act.”
Malone also attached a copy of the July 2018 letter from the
Attorney General’s office, as well as affidavits of four persons
who each stated that he or she had been present at Malone’s
trial and had recalled the exchange between Malone and the
prosecutor that Malone asserted was omitted from the bill of
exceptions. Malone’s “Complaint for Writ of Mandamus” did
not include a notarized verification.
   On July 15, 2019, Baldonado-Bellamy filed a suggestion of
mootness and motion to dismiss. She alleged in the motion and
stated in an affidavit that she had resigned her employment
as an official court reporter for the district court in December
2017 and that at that time, she retained possession of all
shorthand notes and tape recordings she had used to make
the records for cases in which she had served as the official
court reporter.
   Baldonado-Bellamy stated that prior to July 9, 2019, she was
unaware of a court rule that provided that upon termination of
her employment, she was required to transfer materials used
to make records to the clerk of the district court. Baldonado-
Bellamy stated that after learning of the rule, she delivered
to the clerk of the district court all shorthand notes and tape
recordings she had used to make the records for all cases in
which she had served as official court reporter. She asserted
that because she had relinquished control of all shorthand notes
and tape recordings related to Malone’s criminal trial, Malone’s
“Complaint for Writ of Mandamus” was moot as to her because
she was no longer the custodian of the records sought. Malone
objected to Baldonado-Bellamy’s suggestion of mootness and
motion to dismiss, and after a hearing, the court overruled the
motion without prejudice.
   Baldonado-Bellamy filed an amended answer in which
she generally denied that she had a duty under the public
records statutes to provide the audio recordings to Malone. She
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
                        Cite as 

307 Neb. 549

asserted additional defenses, including, inter alia, an assertion
that Malone’s “Complaint is not made upon affidavit or veri-
fied petition as required by Neb. Rev. Stat. § 25-2160.” Friend
also filed an answer in which he generally denied that he had a
duty under the public records statutes and in which he asserted
various defenses. Trial was held and included testimony by
Malone, Baldonado-Bellamy, and Friend.
   Following the trial, the district court entered an order in
which it denied and dismissed Malone’s action for writ of
mandamus. The court stated that although § 84-712(1) pro-
vides that a person may seek a public record, the statute clearly
provides that a person may do so “[e]xcept as otherwise
expressly provided by statute . . . .” The court then cited Neb.
Rev. Stat. § 24-1003 (Reissue 2016), which states in part that
“[t]he [Nebraska] Supreme Court shall provide by rule for the
recording and preservation of evidence in all cases in the dis-
trict . . . courts and for the preparation of transcripts and bills
of exceptions.” The court also cited Neb. Rev. Stat. § 25-1140
(Reissue 2016), which provides in part that the “procedure for
preparation, settlement, signature, allowance, certification, fil-
ing, and amendment of the bill of exceptions shall be regulated
and governed by rules of practice prescribed by the Supreme
Court.” The court noted that pursuant to such statutory author-
ity, this court had adopted a detailed set of rules dealing with
court reporting personnel and the recording, preparation, and
preservation of court records made in district courts. The court
stated that such rules included a uniform set of procedures
for the judge, counsel, parties, and nonparties to request the
court reporter to prepare a transcript of any proceeding or, for
purposes of an appeal, a bill of exceptions. The court noted in
particular that Neb. Ct. R. App. P. § 2-105(B)(5) (rev. 2018)
provided a procedure for counsel or parties to follow if they
believed the bill of exceptions was incorrect or needed to
be amended.
   The district court concluded that the public records statutes
were inapplicable to Malone’s request for the audio recording
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
                        Cite as 

307 Neb. 549

of his trial, because the rules promulgated by this court pursu-
ant to statutory authority have “expressly provided” the proce-
dure by which one can obtain a record, transcript, or a bill of
exceptions from a trial from the court reporter in the district
court, as well as the procedure to amend a bill of exceptions a
party believes to be incorrect. The court further reasoned that
if a person could request an audio recording of a trial pursuant
to the public records statutes, it would circumvent the detailed
rules adopted by this court. The court concluded that because
the public records statutes were inapplicable to Malone’s
request for an audio recording of his trial, Malone’s petition for
a writ of mandamus should be denied and dismissed and that it
need not consider other issues raised by the parties.
   Malone appeals the district court’s order which denied his
petition for a writ of mandamus.

                  ASSIGNMENTS OF ERROR
   Malone claims that the district court erred when it found
that the court reporter’s notes and audio recordings from his
trial were not public records under § 84-712.01(1) and when
it found that the court rules providing for the production and
amendment of bills of exceptions “expressly provide” that
audio recordings and court reporter’s notes are to be excepted
from the public records statutes.
   Baldonado-Bellamy argues in her brief, inter alia, that the
district court lacked jurisdiction to consider Malone’s request
for writ of mandamus, because he failed to file either a verified
petition or a motion and affidavit to support issuance of a writ
of mandamus.

                   STANDARD OF REVIEW
   [1] 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 inde-
pendent of the lower court’s decision. In re App. No. C-4973 of
Skrdlant, 

305 Neb. 635

, 

942 N.W.2d 196

(2020).
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
                        Cite as 

307 Neb. 549

                            ANALYSIS
   [2] Before reaching the legal issues presented for review, it
is our duty to determine whether we have jurisdiction to decide
them.

Id. In this case,

Baldonado-Bellamy asserts that we lack
jurisdiction over this appeal, because the district court lacked
jurisdiction over Malone’s action for writ of mandamus for the
reason that Malone failed to file either a motion and affidavit
or a verified petition as required by governing mandamus law.
We agree.
   Baldonado-Bellamy cites Neb. Rev. Stat. § 25-2160 (Reissue
2016), which provides in part that “[t]he motion for the writ [of
mandamus] must be made upon affidavit.” She also cites State
ex rel. Van Cleave v. City of No. Platte, 

213 Neb. 426

, 430, 

329 N.W.2d 358

, 361 (1983), in which we held that when “neither a
motion and affidavit nor a petition positively verified has been
filed, the trial court was without authority to issue the peremp-
tory writ of mandamus.” Baldonado-Bellamy argues that to the
extent Malone’s “Complaint for Writ of Mandamus” may be
considered a petition, it was not positively verified, and that to
the extent it may be considered a motion, it was not accompa-
nied by a supporting affidavit sworn to by Malone. She notes
that Malone’s pleading attached affidavits of fact witnesses but
that Malone did not swear to or file an affidavit setting forth
facts to establish his right to the writ of mandamus.
   Malone does not dispute that he did not file either a verified
petition or a motion and affidavit as required by § 25-2160.
Instead, he argues that he filed for mandamus under the public
records statutes, which do not contain the same requirement.
He further argues that any jurisdictional defect was cured
because the court held a hearing at which he provided sworn
testimony to support his request.
   [3] Malone filed his petition pursuant to § 84-712.03(1)(a),
which provides that “[a]ny person denied any rights granted
by sections 84-712 to 84-712.03 may elect to . . . [f]ile for
speedy relief by a writ of mandamus in the district court within
whose jurisdiction the state, county, or political subdivision
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
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307 Neb. 549

officer who has custody of the public record can be served[.]”
We have said, “In the context of a public records denial, a
district court’s jurisdiction over a writ of mandamus is gov-
erned by § 84-712.03, and such jurisdiction does not turn on
whether the claim advanced by the relator has merit.” State
ex rel. BH Media Group v. Frakes, 

305 Neb. 780

, 789, 

943 N.W.2d 231

, 241 (2020). Although jurisdiction does not turn
on the merits of the claim advanced, § 84-712.03(1)(a) pro-
vides that a person denied rights under the public records
statutes may seek relief by a writ of mandamus in a district
court. The procedure for a writ of mandamus in district courts
is governed by Neb. Rev. Stat. §§ 25-2156 through 25-2169
(Reissue 2016), and we read the reference to “writ of manda-
mus in the district court” in § 84-712.03(1)(a) as incorporating
such statutes to govern the procedure for obtaining the relief
authorized by § 84-712.03(1)(a). Therefore, a person choos-
ing to seek speedy relief by a writ of mandamus pursuant to
§ 84-712.03(1)(a) must follow the procedural requirements set
forth in §§ 25-2156 through 25-2169.
   In State ex rel. Krieger v. Board of Supervisors, 

171 Neb. 117

, 120-21, 

105 N.W.2d 721

, 724-25 (1960), we summarized
the statutory procedure in a mandamus action as follows:
         The regular procedure in mandamus, after a petition
      therefor has been filed, is to make an application for a writ
      by motion supported by affidavit, whereupon the court
      may grant the writ without notice, may require notice to
      be given, or may grant an order to show cause why the
      writ should not be allowed. See § 25-2160 . . . . When
      the right to the writ is clear, and it is apparent that no
      valid excuse can be given for failure to perform the
      duty, a peremptory writ should be issued. In all other
      cases, when a writ is issued, it should be in the alterna-
      tive and contain an order to show cause. See §§ 25-2158
      and 25-2159 . . . . The alternative writ and the answer
      thereto constitute the pleadings in any case wherein an
      alternative writ has been issued and no other pleadings
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
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307 Neb. 549

      are permitted. See §§ 25-2162 and 25-2164 . . . . If no
      answer is filed to an alternative writ then a peremptory
      writ must be allowed. § 25-2163 . . . . Generally, when
      a hearing on an application is ordered and notice thereof
      given or an order to show cause has been issued and
      served and a return in either situation presents an issue or
      issues of fact, the court should not try such issue or issues
      at that stage of the proceedings but, in such case, issue
      a writ. However, such writ should be an alternative writ
      and issues should be made up thereon by the filing of an
      answer thereto and then tried on the issue or issues raised
      thereby. . . . However, under our holdings, if no writ has
      been issued the case may be heard on the petition and
      response thereto when a hearing or order to show cause
      has been ordered under section 25-2160 . . . and notice
      thereof given.
   [4] Our case law has long recognized that the “motion . . .
upon affidavit” requirement of § 25-2160 may be fulfilled by
a verified petition, and we have also long stressed the impor-
tance of the motion and affidavit or verified petition, stating,
“‘An action to procure the issuance of a writ of mandamus is
not begun until a motion and affidavit, or a petition verified
positively, is filed in the district court . . . .’” Little v. Board
of County Commissioners, 

179 Neb. 655

, 660, 

140 N.W.2d 1

,
5 (1966) (quoting State v. Harrington, 

78 Neb. 395

, 

110 N.W. 1016

(1907)). See, also, State ex rel. Van Cleave v. City of No.
Platte, 

213 Neb. 426

, 429, 

329 N.W.2d 358

, 360 (1983) (not-
ing in part that verification “upon which a writ of mandamus
is sought must be positively verified, and a verification based
upon mere belief is inadequate”).
   [5] We have characterized the foregoing requirements as
jurisdictional. In State v. Harrington, this court stated that
“a court has no power or jurisdiction to issue a peremptory
writ without, first, the filing of the application in the 

court,” 78 Neb. at 400

, 110 N.W. at 1017-18, and that “a notice that
at some future time the relator would apply [for a writ of
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
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307 Neb. 549

mandamus] has no substantial basis and . . . such a notice
served at such a time was insufficient to confer jurisdiction
upon the district court,” 78 Neb. at 

399, 110 N.W. at 1017

.
Based on this precedent, the filing of a motion and affidavit or
a verified petition is a jurisdictional requirement before a dis-
trict court may issue a writ of mandamus, and until such filing
is made, the court does not have jurisdiction over an action for
writ of mandamus.
   Malone does not dispute that he did not file a verified peti-
tion or a motion and affidavit. Instead, he argues that the statu-
tory requirement for a motion and affidavit was met when the
court ordered a trial and took sworn testimony. He notes that
this court stated that the purpose of the holding in State ex rel.
Van Cleave v. City of No. Platte was so that “the trial court is
assured that there is someone who represents to the court that
the facts presented are true and who may be subject to perjury
if it later proves 

otherwise.” 213 Neb. at 430

, 329 N.W.2d at
361. Malone argues that in this case, the district court heard
sworn testimony by three witnesses, including Malone, and the
court therefore based its decision on sworn statements.
   We have not held that sworn testimony is an acceptable
substitute for the “motion . . . upon affidavit” under § 25-2160,
and the only alternative that our case law has recognized is a
petition verified positively. See, State ex rel. Van Cleave v. City
of No. Platte, supra; Little v. Board of County 

Commissioners, supra

. We note that the section of State ex rel. Krieger v.
Board of Supervisors, 

171 Neb. 117

, 121, 

105 N.W.2d 721

,
725 (1960), quoted above with regard to the regular procedure
in mandamus indicates that there is case law to the effect that
under appropriate circumstances, “if no writ has been issued
the case may be heard on the petition and response thereto.”
However, we do not read State ex rel. Krieger to excuse fail-
ure to meet the “motion . . . upon affidavit” requirement of
§ 25-2160; it instead addresses a court’s failure to issue an
alternative writ as required under § 25-2159.
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
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307 Neb. 549

   Malone’s argument might appear to have some support
from other jurisdictions. In Austin v. City of San Antonio, 

630 S.W.2d 391

, 393 (Tex. App. 1982), the court stated:
      While a petition for writ of mandamus should be verified,
      that requirement has been relaxed where, as here, there
      has been a full evidentiary hearing. . . . And that defect
      may be waived, as it was in this case when the agency
      failed to raise the issue before the trial court. . . . We find,
      therefore, that any defects in the respective parties’ plead-
      ings were waived, and that the issues raised by the parties
      were tried by consent.
We note that unlike the agency in Austin v. City of San 

Antonio, supra

, Baldonado-Bellamy in this case raised Malone’s failure
to comply with § 25-2160. Therefore, there was no waiver or
consent in this case. Furthermore, as noted above, our prec-
edent treats § 25-2160 as imposing a jurisdictional require-
ment, and parties cannot waive a jurisdictional requirement.
See DeLima v. Tsevi, 

301 Neb. 933

, 

921 N.W.2d 89

(2018)
(parties cannot confer subject matter jurisdiction upon judicial
tribunal by either acquiescence or consent, nor may subject
matter jurisdiction be created by waiver, estoppel, consent, or
conduct of parties).
   We reject Malone’s argument that the sworn testimony at
trial satisfied the jurisdictional requirement of § 25-2160. We
conclude that because Malone did not file a motion and affi-
davit or a properly verified petition, the mandamus action was
not begun and the district court did not have jurisdiction to
order such trial.
   [6] In this case, the district court dismissed Malone’s action
for writ of mandamus based on the merits. However, the
court should not have reached the merits, because the action
had not been begun in the manner required by law, and the
court therefore should have dismissed for lack of jurisdiction.
Because the district court lacked jurisdiction over the manda-
mus action, we lack jurisdiction of this appeal. When a trial
court lacks jurisdiction to adjudicate the merits of a claim,
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         STATE EX REL. MALONE v. BALDONADO-BELLAMY
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307 Neb. 549

issue, or question, an appellate court also lacks the power
to determine the merits of the claim, issue, or question pre-
sented to the lower court. State v. McGuire, 

301 Neb. 895

, 

921 N.W.2d 77

(2018). Therefore, we must dismiss this appeal for
lack of jurisdiction.

                          CONCLUSION
   We conclude that because Malone did not file a motion and
affidavit or a verified petition, the district court lacked jurisdic-
tion of this proceeding for mandamus. Consequently, we lack
jurisdiction of this appeal, and we therefore dismiss this appeal
for lack of jurisdiction.
                                                Appeal dismissed.
   Freudenberg, J., not participating.
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