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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for March 2, 2007

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Administrative License Revocation, Hearing, Jurisdiction
Administrative Rules, Statute, County of Arrest
Appeal and Error, Public Service Commission, Jurisdiction
Discovery, Executive Session, Attorney/Client Discussions
Dismissal, Violation of Progression Order
Nuisance, Summary Judgment
Workers' Compensation, Dismissal Without Prejudice

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Case Summaries

Administrative License Revocation, Hearing, Jurisdiction

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In this case on further review from the Court of Appeals, the Nebraska Supreme Court disagrees with the Court of Appeals regarding where a hearing under an Administrative License Revocation must be held.

Robbins V. Neth 273 Neb. 115 (2007)

Supreme Court Headnotes

Administrative Law: - Agency regulations properly adopted and filed with the Secretary of State of Nebraska have the effect of statutory law. ••• Regulations bind the agency that promulgated them just as they bind individual citizens, even if the adoption of the regulations was discretionary. ••• To be valid, an action of an agency must conform to its rules which are in effect at the time the action is taken.

- [Final Orders:] (Appeal and Error.) A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.

- [Judgments:] (Appeal and Error.) When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.-

[Legislature.] The Legislature has power to authorize an administrative or executive department to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations.

- [Waiver.] Regulations governing procedure are just as binding upon both the agency which enacts them and the public, and the agency does not, as a general rule, have the discretion to waive, suspend, or disregard, in a particular case, a validly adopted rule so long as such rule remains in force.

- [Statutes.] In order to be valid, a rule or regulation must be consistent with the statute under which the rule or regulation is promulgated.

Judgments:- [Appeal and Error.] Whether a decision conforms to law is by defnition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the lower court.

Date Filed and Case No.: March 2, 2007. No. S-04-835.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s04-835.pdf

Court Appealed From: Petition for further review from the Nebraska Court of Appeals, Inbody, Chief Judge, and Sievers and Carlson, Judges, on appeal thereto from the District Court for Box Butte County, Brian Silverman, Judge.

Attorneys for the Appeal: David E. Veath for Todd A. Robbins, appellant. Jon Bruning, Milissa Johnson-Wiles, and Laura L. Neesen for Beverly Neth, Director of Nebraska Department of Motor Vehicles, Appellee.

Justices: Heavican, C.J., Wright, Connolly, Cjerrard, Stephan, McCormack, and Mlller-Lerman, JJ.

Authored By: Miller-Lerman, J.

Summary: Beverly Neth, director of the Nebraska Department of Motor Vehicles (the Department), administratively revoked Todd A. Robbins' driver's license for 90 days. The Box Butte County District Court affirmed the order. Robbins appealed to the Nebraska Court of Appeals asserting that the revocation was not valid because the ALR hearing was not held in the county where his arrest had occurred, as required by the Department's rules and regulations then in effect. The Court of Appeals rejected Robbins' claim noting that the Legislature had recently repealed the statutory requirement that the ALR hearing be held in the county of arrest and therefore reasoned that such legislative action superseded the Department's regulation which continued to require that the ALR hearing be conducted in the county of the arrest. The Court of Appeals affirmed the district court's affirmance of the revocation order. Robbins v. Neth, 15 Neb. App. 67, 722 N.W.2d 76 (2006). Robbins petitioned for and was granted further review by the Nebraska Supreme Court.

Did the Court of Appeals err as a matter of law in concluding that the repeal of the statutory provision which had required that the ALR hearing be conducted in the county of arrest superseded the Department's regulation which continued to impose such requirement? The Supreme Court concluded that the Department's regulation requiring that a hearing be held in the county where the arrest had occurred is not inconsistent with the relevant statutes as amended. Therefore, at the time of Robbins' ALR hearing, the Department was required to hold the hearing in Box Butte County, where Robbins had been arrested. Because the Department failed to do so, the district court erred in affrming the revocation of Robbins' license and that the Court of Appeals erred in affrming the district court's order. In order to be valid, a rule or regulation must be consistent with the statute under which the rule or regulation is promulgated. Here, the Department's requirement in 247 Neb. Admin. Code, ch. 1, § 022.01, that the hearing be held in the county where the arrest had occurred, was clearly valid prior to 10/01/03 because the language of the regulation followed the language of § 60-6,205(6)(a).

"The question before us, however, is whether 247 Neb. Admin. Code, ch. 1, § 022.01, continued to be valid after the Legislature moved § 60-6,205 to § 60-498.01 and removed the requirement that the hearing be held in the county in which the arrest had occurred, and instead was silent on venue and required merely that the hearing 'may be conducted in person or by telephone, television, or other electronic means at the discretion of the director, and all parties may participate by such means at the discretion of the director'" said the Supreme Court.

Having considered the language of § 60-498.01 and 247 Neb. Admin. Code, ch. 1, § 022.01, the Court determined that after the statutory amendment, the Department's regulation was still consistent with statutory authority and that therefore, the regulation was valid and the Department was required to conform to the regulation. In 2003, the Legislature removed the statutory requirement that the hearing be held in the county in which the arrest had occurred. But the amended statute, § 60-498.01, was silent on venue and did not prohibit the Department from requiring that the hearing be held in such county. "The Legislature merely provided for the means by which a hearing could be conducted and by which parties could participate."

Because the Legislature did not mandate a location for the hearing and did not prohibit the hearing from being held in the county where the arrest occurred, the Department, pursuant to its rulemaking authority under § 60-498.01(7), was still authorized to require by its rules and regulations that the hearing be held in the county where the arrest had occurred. Such rules and regulations were not inconsistent with the relevant amended statute.

Conclusion: Although the Court agreed with the Court of Appeals that legislative intent manifested by statute controls over an agency rule to the contrary, it did not read the legislative amendment in this case as a mandate prohibiting the Department from requiring hearings to be held in the county of arrest. The Court of Appeals incorrectly concluded that such legislative "mandate" prohibited the continued validity of the Department's regulation which required that the hearing be conducted in the county of arrest. REVERSED AND REMANDED WITH DIRECTIONS.

Administrative Rules/Statute, County of Arrest

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Robbins V. Neth 273 Neb. 115 (2007)

Supreme Court Headnotes

- [Statutes.] In order to be valid, a rule or regulation must be consistent with the statute under which the rule or regulation is promulgated.

Date Filed and Case No.: March 2, 2007. No. S-04-835.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s04-835.pdf

Justices: Heavican, C.J., Wright, Connolly, Cjerrard, Stephan, McCormack, and Mlller-Lerman, JJ.

Authored By: Miller-Lerman, J.

Appeal and Error, Public Service Commission, Jurisdiction

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Here, the Nebraska Supreme Court reverses and remands a decision of a district court regarding an opinion or the Nebraska Public Service Commission. The Court determined that under the Administrative Procedure Act, courts have subject matter jurisdiction to review the Commission's decision not to exercise its rulemaking authority and determined that the Commission's decisions herein were not arbitrary and capricious.

Chase 3000, Inc. v. Nebraska Pub. Serv. Comm., 273 Neb. 133 (2007)

Supreme Court Headnotes

Jurisdiction:

- [Appeal and Error.] Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. ••• When a lower court lacks the authority to exercise its subject matter 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 question presented to the lower court.

Statutes:

- A statute is ambiguous when the language used cannot be adequately understood either from the plain meaning of the statute or when considered in pari materia with any related statutes.

- [Appeal and Error.] Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. ••• In the absence of ambiguity, courts must give effect to the statutes as they are written. If the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning. ••• In construing a statute, an appellate court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.

- [Legislature:] (Intent.) A sensible construction will be placed upon a statute to effectuate the object of the legislation rather than a literal meaning that would have the effect of defeating the legislative intent. ••• When a statutory term is reasonably considered ambiguous, a court may examine the legislative history of the act in question to ascertain the intent of the Legislature.

Administrative Law:

- Generally, for purposes of construction, a rule or order of an administrative agency is treated like a statute. ••• Rulemaking by an administrative agency is properly characterized as a legislative process as contrasted with an administrative, judicial, or quasi-judicial process.

- [Judgments:] (Appeal and Error.) A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

Date Filed and Case No.: March 2, 2007. No. S-05-935.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s05-935.pdf

Court Appealed From: District Court for Lancaster County: Bernard J. McGinn, Judge.

Attorneys for the Appeal: Jack L. Shultz and Gregory D. Barton for Nebraska Telecommunications Association, appellant Jon Bruning and L. Jay Bartel for Nebraska Public Service Commission, appellee. Steven G. Seglin and Thomas E. Jeffers for Chase 3000, Inc., appellee and cross-appellee. Jill Vinjamuri Gettman and Michael J. Mills for Qwest Communications Corporation, appellees and cross-appellants.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Stephan, J.

Summary: This case required the Nebraska Supreme Court to determine whether there is a statutory right of appeal from an order of the Nebraska Public Service Commission (Commission) declining to exercise its rulemaking authority, including whether such an order is appealable under the procedures set forth in the Administrative Procedure Act (APA), Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 1999 & Cum. Supp. 2006).

In this case, Chase 3000, Inc., a Nebraska Internet service provider (ISP), and several other ISP's filed a petition with the Commission requesting it either to initiate a rulemaking proceeding to establish rules applicable to the relationship between an incumbent local exchange carrier (ILEC) and its affliated companies or, in the alternative, to initiate an investigation to allow public comment on the use of resources held by a monopoly that may be protected from competition. By written order, the Commission sought public comment on the questions raised by the petition. The Nebraska Telecommunications Association (NTA) filed a petition for a declaratory ruling, arguing that the Commission lacked jurisdiction to either conduct a rulemaking proceeding or engage in an investigation of an ILEC's nonregulated affliates. NTA then filed a motion to stay the proceedings pending resolution of its petition for declaratory ruling. The Commission denied the motion to stay but ruled that the parties could address the jurisdictional issue when submitting comments. Several entities filed comments, including Chase 3000, NTA, Qwest Communications Corporation, and AT&T Telecommunications of the Midwest, Inc. (AT&T). The Commission entered an order closing the investigation in which made several conclusions, including:

It lacks jurisdiction to enact rules which generally govern a non-regulated affliate of a local exchange carrier as the Petitioners requested.
Its jurisdiction is limited, extending to common carriers engaged in furnishing telecommunications services for hire in Nebraska.
The Commission's jurisdiction does not extend to non-regulated services or rates provided by affliates of common carriers who are not required to be certifcated in the state.
Such affiliates are not subject to any oversight.
The Federal Communications Commission (FCC) has rules which govern how the ILECs must account for transactions with their affiliates.
Moreover, as it pertains to the regulated entity itself, there are provisions in both state and federal law which prohibit discriminatory pricing. If there is a case for discriminatory pricing or anti-competitive behavior by an ILEC, it should be brought before the FCC or the Commission for determination under its jurisdiction to resolve complaints related to activities of the regulated common carriers.
At this point, the Commission is without evidence that there is a problem of statewide magnitude. It appears unnecessary to create additional rules applicable to all entities to resolve complaints relating to one or a few, particularly, if they involve reporting duplicative information already provided to the FCC.

Chase 3000 filed a petition for judicial review in the district court for Lancaster County pursuant to the APA and Neb. Rev. Stat. §§ 75-136 (Reissue 2003) and 86-158 (Cum. Supp. 2006). No other entity appealed the order. The district court held that the Commission "erred in determining it was without jurisdiction to enact rules governing the relationship between ILECs and their nonregulated affliates." Based on this interpretation of the Commission's order, the district court reversed and determined that the cause should be remanded to the Commission for an "investigation into whether or not a general rule or a case by case analysis is most appropriate." NTA appealed, and the Commission and Qwest Communications Corp. cross-appealed; all urged reversal. The Nebraska Supreme Court moved the case to their docket.

Appellant and cross-appellants assign, restated, that the order of the district court reversing and remanding the order of the Commission was arbitrary, capricious, and contrary to law.

Did the district court (or thereafter the Supreme Court) have subject matter jurisdiction over a Commission's order declining to exercise its rulemaking authority?

The rulemaking authority of the Commission is derived from Neb. Rev. Stat. § 75-110 (Reissue 2003), which provides that the Commission "shall adopt and promulgate rules and regulations which the commission deems necessary to regulate persons within the commission's jurisdiction." The APA authorizes any person to "petition an agency requesting the adoption of a rule or regulation." § 84-907.08. Section 84-911 provides a procedure whereby a party may challenge the validity of an administrative rule or regulation, but there is no specifc statutory provision for judicial review of an agency's decision not to exercise its rulemaking power.

The Court concluded that the phrase "in accordance with the Administrative Procedure Act" as used in §§ 75-136 and 86-158 is ambiguous and therefore open to construction because it is unclear whether it means that only contested cases decided by the Commission can be appealed or that all orders of the Commission may be appealed under the procedures which the APA prescribes for appealing contested cases. Reviewing statutory history and floor debate on amendments to the statutes regarding the Commission, the Court did not construe the second sentence of § 84-917 as a substantive limitation on the first, but, rather, as a directive that all appeals from the Commission's orders are to follow the procedural requirements of the APA. "We similarly construe § 86-158 and therefore conclude that the district court had jurisdiction to review the order in question and that we have jurisdiction to review the order of the district court."

Was there error by the district court in concluding Commission "erred in determining it was without jurisdiction to enact rules governing the relationship between ILECs and their nonregulated affiliates"? To determine the meaning of the Commission's order, the Court attempted to give effect to all of its parts, "and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless." Reading the order in its entirety, the Court concluded that the Commission did not simply determine that it lacked jurisdiction to proceed further in its investigation or rulemaking. Rather, the Commission concluded (1) that it had no jurisdiction to regulate the affliates of ILEC's; (2) that it had jurisdiction to regulate the relationship between ILEC's and their affliates; and (3) that based upon the petition and comments received, it was unnecessary to engage in rulemaking with respect to the relationship between ILEC's and their affliates at the present time. As a result, the Court ruled that the order of the district court was erroneous because it misinterpreted the administrative order under review. Here, after docketing the petition filed by Chase 3000 and other ISP's, the Commission entered an order setting forth the specific issues raised by the petitioners and requesting public comment. Several detailed written comments were received. The Commission did not conduct an evidentiary hearing, but it was not under any statutory obligation to do so. Based upon the comments it received, the Commission concluded that it was unnecessary to engage in rulemaking for several reasons. Noting that some of the comments received referred to matters occurring outside Nebraska, the Commission stated that if there were specific complaints about a regulated entity's conduct in Nebraska, "a complaint should be filed setting forth specific allegations and the grounds for relief." Based upon this reasoned explanation, the Court concluded that the Commission did not act arbitrarily in deciding not to exercise its rulemaking authority.

Conclusion: The Court found that the district court erred in interpreting the Commission's order as a determination that it lacked jurisdiction to engage in the rulemaking requested by Chase 3000 and other ISP's. The Commission recognized its jurisdiction to regulate certain conduct by ILEC's but acted within its legal authority in declining to exercise that jurisdiction for reasons which were not arbitrary. REVERSED AND REMANDED WITH DIRECTIONS.

Discovery, Executive Session, Attorney/Client Discussions

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Determining, given the language of the Open Meetings Act, that there is no absolute privilege for communications made during a closed session, the Court found that to the extent the communications implicate other recognized privileges, the communications are protected.

State ex Rel. Upper Republican NRD v. District Judges, 273 Neb. 148 (2007)

Supreme Court Headnotes

Mandamus:

- [Words and Phrases.] Mandamus is a law action and is defned as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.

- [Proof.] In a mandamus action, the party seeking mandamus has the burden of proof and must show clearly and conclusively that such party is entitled to the particular thing the relator asks and that the respondent is legally obligated to act.

- [Pretrial Procedure:] (Appeal and Error.) In determining whether mandamus applies to an issue of discovery, the Supreme Court considers whether the trial court clearly abused its discretion in not issuing a protective order which limited the nature of the discovery.

- [Courts.] A request for relief first presented in a mandamus action will be disregarded inasmuch as the district court cannot have failed to perform an act which was not submitted to it for disposition.

Public Meetings:

- [Statutes.] Public meetings laws are broadly interpreted and liberally construed to obtain the objective of openness in favor of the public. Provisions permitting closed sessions and exemptions from openness of a meeting must be narrowly and strictly construed. ••• The Open Meetings Act does not provide for a closed session discovery privilege.

Date Filed and Case No.: March 2, 2007. No. S-06-549.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s06-549.pdf

Court Appealed From: Original action.

Attorneys for the Appeal: Donald G. Blankenau and Jaron J. Bromm and Joel E. Burke for State of Nebraska ex rel. Upper Republican Natural Resources District et al., relators. No appearance for The Honorable District Judges of the District Court for Chase County, Nebraska, respondents.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, JJ.

Authored By: Gerrard, J.

Summary: WaterClaim, a Nebraska nonprofit corporation, and several individual irrigators (collectively WaterClaim) who reside within the boundaries of the Upper Republican Natural Resources District (Upper Republican NRD) sued the Upper Republican NRD and its then-existing board of directors (collectively the relators), alleging that the relators had violated the Open Meetings Act. WaterClaim sought declaratory and injunctive relief. As part of pretrial discovery, WaterClaim provided notice of its intention to depose the individual relators and the manager of the Upper Republican NRD. The relators filed a motion to limit or terminate the depositions pursuant to Neb. Ct. R. of Discovery 26 (rev. 2001) on the basis that discussions held in a closed session are not subject to discovery because they are confidential and protected by the attorney-client privilege. A district court judge denied the relators' motion and ordered the deponents to answer WaterClaim's questions. The relators were granted leave to file an original action in the Nebraska Supreme Court. The petition for peremptory writ of mandamus, asked the Court to direct the district court to vacate its orders sustaining WaterClaim's motion to compel discovery.

Did the district court err in denying relators motion for a protective order seeking to prevent disclosure of communications that occurred during closed sessions under the Open Meetings Act? In its determination of whether mandamus applies to an issue of discovery, the Court considered whether the trial court clearly abused its discretion in not issuing a protective order which limited the nature of the discovery. The relators contended that the communications at issue in this case are privileged and not subject to discovery because the communications (1) are confdential and privileged under the Open Meetings Act, (2) are protected by the attorney-client privilege, and (3) are protected under the state secrets privilege.

Pursuant to the Open Meetings Act, are all communications during a validly convened closed session privileged? Insofar as the relators argue that all communications during a closed session are privileged, the Court found this argument in error. "We find no language in the Open Meetings Act that would support the assertion that the Legislature intended to create an absolute privilege for all communications occurring while a public body is in a closed session" wrote the Court. "Unlike other Nebraska statutes where the Legislature expressly created discovery privileges, the Open Meetings Act is notably silent in this regard." The Court's conclusion was also based on the fact that if these communications were privileged solely because they occurred during a closed session, a private litigant would be left without the ability to challenge the validity of the public body's actions during a closed session. This determination that there is no absolute discovery privilege for communications that occur during closed sessions does not necessarily mean that all communications during closed sessions are discoverable. All other recognized evidentiary privileges are still applicable.
Did the district court correctly refuse to grant a protection order protecting the relators' communications that qualify under the attorney-client privilege? The record contained an affidavit which said that during all closed sessions as referenced to by Water Claim in the past twelve months, one, if not both attorneys for the District were present and were advised and instructed on negotiation strategies. Further, the attorneys for the District advised the Board as to the possible implications of failing to meet the District's requirement as required by law including possible action in Court or in the interrelated water review board. The Court found that this affidavit, although vague on the substance and context of the communications in the closed sessions, was sufficient to demonstrate that some of the communications at issue may be subject to the attorney-client privilege. Thus, the district court's determination that none of the communications qualified for the attorney-client privilege and its failure to perform a more thorough inquiry into the matter were in error. "Accordingly, we conclude that a peremptory writ of mandamus should issue, directing the district court to vacate its orders compelling discovery and to allow the relators an opportunity to submit additional evidence for the purpose of clarifying which, if any, of the alleged communications qualify for protection under the attorney-client privilege."
Are relators communications protected from discovery pursuant to the "State Secrets Act?" The Court noted that there is nothing in the record to suggest that this argument was raised to the district court so it was not addressed.

Conclusion: The Court determined given the language of the Open Meetings Act, that there is no absolute privilege for communications made during a closed session. However, to the extent the communications implicate other recognized privileges, the communications are protected. The Court therefore concluded that a peremptory writ of mandamus should issue, directing the district court to vacate its orders compelling discovery and to conduct an in camera review in order to evaluate whether the contested evidence is protected by the attorney-client privilege.

PEREMPTORY WRIT ISSUED.

Dismissal, Violation of Progression Order

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Here, a district court's dismissal of a case for failing to follow progression standards is affirmed by the Nebraska Supreme Court.

Zitterkopf v. Maldonado 273 Neb. 145 (2007)

Supreme Court Headnotes

Statutes:

Date Filed and Case No.: March 2, 2007. No. S-05-1230.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s05-1230.pdf

Court Appealed From: District Court for Scotts Bluff County: Randall L. Lippstreu, Judge.

Attorneys for the Appeal: Brenda L. Bartels for Richard Zitterkopf and Deborah Zitterkopf, appellants. James L. Zimmerman for Jesse Maldonado and Ice Castles, Inc., appellees. John F. Simmons for Thomas Moffet and Heartland Bedding, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: McCormack, J.

Summary: Richard Zitterkopf and his wife, Deborah Zitterkopf, filed suit to recover damages allegedly stemming from an automobile accident. The accident occurred on 09/07/00, between Richard, Jesse Maldonado, and Thomas Moffet. At the time of the collision, Maldonado was working for Ice Castles, Inc., and Moffet was working for Heartland Bedding. The Zitterkopfs claim that as a result of the accident, Richard suffered injuries which required medical treatment. The district court dismissed the Zitterkopfs' case for exceeding the Supreme Court's progression standards. After their motion to vacate the order of dismissal was overruled, the Zitterkopfs filed a second case for the same cause of action against the same defendants under the savings clause statute, Neb. Rev. Stat. § 25-201.01 (Cum. Supp. 2006). The district court entered summary judgment in favor of the defendants in the Zitterkopfs' second case on the ground that the savings clause did not allow that case to be filed outside the applicable statute of limitations. The Zitterkopfs appealed and the Nebraska Supreme Court wrote the opinion.

Did the district court err in granting the appellees' motions for summary judgment on the ground that the Zitterkopfs' claims were not subject to the savings clause statute?

Section 25-201.01 provides:

(1) If an action is commenced within the time prescribed by the applicable statute of limitations but the plaintiff fails in the action for a reason other than a reason specified in subsection (2) of this section and the applicable statute of limitations would prevent the plaintiff from commencing a new action, the plaintiff . . . may commence a new action within the period specified in subsection (3) of this section.

(2) A new action may not be commenced in accordance with subsection (1) of this section when the original action failed ... (d) as a result of any other inaction on the part of the plaintiff where the burden of initiating an action was on the plaintiff.

The Zitterkopfs' first action was dismissed pursuant to a progression order and they did not appeal the dismissal of that action, and the issue of whether that dismissal was proper was not before the Court. Section 25-201.01(2)(d) clearly provides that a new action may not be brought under the savings clause when the original action failed because of the plaintiff's inaction where the plaintiff bears the burden of initiating the action. The dismissal of the Zitterkopfs' first case for failure to abide by the progression standards was a dismissal because of a lack of action on their part. Because the Zitterkopfs' first case was dismissed as a result of their inaction, the Court ruled that the Zitterkopfs are precluded from bringing the present action out of time under § 25-201.01.

Conclusion: The Court accordingly, affirmed the district court's dismissal of this action. AFFIRMED.

Nuisance, Summary Judgment

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The Nebraska Supreme Court reversed the grant of summary judgment in this case where a homeowner brought an action against a cattle confinement facility. While the Court found no problem with the zoning procedures involved it did find disputed material issues of fact regarding the homeowner's private nuisance claim.

Johnson v. Knox Cty. Partnership, 273 Neb. 123 (2007)

Supreme Court Headnotes

Summary Judgment.

- Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

- [Appeal and Error.] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

- [Final Orders:] (Appeal and Error.) When adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as the court deems just.

Actions:

- [Pleadings.] To determine the nature of an action, a court must examine and construe a complaint's essential and factual allegations by which the plaintiff requests relief, rather than the legal terminology utilized in the complaint or the form of a pleading.

- [Equity:] (Nuisances.) With respect to an action in equity, a legitimate business enterprise is not a nuisance per se, but it may become a nuisance in fact by reason of the conditions implicit in and unavoidably resulting from its operation or because of the manner of its operation. ••• With respect to a nuisance in the context of an action in equity, the invasion of or interference with another's private use and enjoyment of land need only be substantial.

Nuisances:

- Where one's business operation as conducted materially and injuriously affects the comfort and enjoyment and property rights of those in the vicinity, it becomes a nuisance and may be enjoined. ••• To justify the abatement of a claimed nuisance, the annoyance must be such

as to cause actual physical discomfort to one of ordinary sensibilities. ••• Even in an industrial or rural area, one cannot conduct a business enterprise in such manner as to materially prejudice a neighbor. ••• The right to have the air floating over one's premises free from noxious and unnatural impurities is a right as absolute as the right to the soil itself.

- ]Real Estate:] (Words and Phrases.) A private nuisance is a non trespassory invasion of another's interest in the private use and enjoyment of his or her land.

- [Zoning.] A legal and proper activity may be a nuisance in fact simply because of its location.

- [Presumptions.] There is a presumption, in the absence of evidence to the contrary, that a plaintiff in an action for abatement of a nuisance has ordinary sensibilities.

- [Property.] The fact that a residence is in a rural area requires an expectation that the residence will be subjected to normal rural conditions, but not to such excessive abuse as to destroy the ability to live and enjoy the home, or such as to reduce the value of the residential property. ••• It is true that rural residents must expect to bear with farm and livestock conditions normally found in the area where they reside. But, a rural home and a rural family, within reason, are entitled to the same relative protection as others.

Date Filed and Case No.: March 2, 2007. No. S-05-853.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s05-853.pdf

Court Appealed From: Appeal from the District Court for Knox County: Patrick G. Rogers, Judge.

Attorneys for the Appeal: Steven M. Virgil and, on brief, James M. Buchanan for Leslie N. Johnson and Amy A. Johnson, husband and wife, appellants. David A. Domina and Claudia L. Stringfield-Johnson for Knox County Partnership, a Nebraska General Partnership, and Knox County Feeders, Inc., a Nebraska Corporation, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Stephan, J.

Summary: Leslie N. Johnson and Amy A. Johnson, husband and wife, owning and residing on 400 acres of land in Knox County, live near a cattle confinement facility operated by Knox County Feeders, Inc., on land owned by Knox County Partnership (the Partnership) in rural Knox County, Nebraska (approximately 50.5 acres of land.) In 1993, Feeders was issued a permit by Nebraska's Department of Environmental Quality (DEQ) to operate a livestock waste control facility for 980 head of cattle. However, a site inspection by DEQ in October 1999 revealed that Feeders had about 4,300 head of cattle in its confinement facility. Subsequently, after complying with DEQ requirements, Feeders was issued an operating permit in December 2002 for 5,000 head of cattle.

Knox County amended its zoning regulations in April 1999, adding a provision requiring all livestock confinements to have a minimum set back from a residence that is relative to the size (one time capacity) and the type of the livestock confinement. For beef confinements, they must be a minimum distance of one foot from a residence for each animal unit. In May 2003, the Knox County zoning administrator informed Feeders that, based on DEQ inspection records, it had not undergone expansion as of April 1999 and was thus "grandfathered" for 5,000 head of cattle.

The Johnsons brought this action to enjoin certain operations of the confinement facility, alleging that it was in violation of county zoning regulations and constituted a nuisance. The district court for Knox County entered summary judgment in favor of both defendants, based on its determination that the confinement facility was not in violation of county zoning regulations. In its order, the court noted:

[The Johnsons'] basic contention is that the [Partnership and Feeders] cannot operate a feedlot which contains more than a thousand head of cattle and that the Knox County Board of Supervisors and the Nebraska DEQ are in violation of the zoning regulations in issuing permits for the [Partnership and Feeders] to operate their feedlot with up to 5,000 head of cattle.

Referring to Neb. Rev. Stat. § 23-114.05 (Cum. Supp. 2006), the district court determined that the Johnsons had standing to sue based upon alleged violations of county zoning regulations, but found that "[t]here is nothing in the evidence to indicate that the [Partnership and Feeders] are currently violating any Knox County Zoning permit or use authorized by the zoning officials for Knox County. [The Johnsons] are, in essence, attacking the zoning officials' judgment in issuing the permits that the defendants have." The district court further determined that the board of supervisors, the county attorney, and the zoning administrator did not abuse their discretion in "grandfathering" the cattle confinement facility. The Johnsons' appealed and the Nebraska Supreme Court moved the case to their docket.

Was there error in failing to find that there was a material issue of fact regarding the Statutory Remedy to enforce Zoning Regulations. The remedy afforded by § 23-114.05 lies where a violation of a county zoning regulation is proved. Here, the Johnsons did not assign error to this portion of the district court's order. Accordingly, there was no genuine issue of material fact regarding the Johnsons' allegations that the cattle confinement facility was conducted in violation of county zoning regulations. The Court found that the Partnership and Feeders are entitled to judgment as a matter of law with respect to such claim.

Did the private nuisance cattle confinement facility constituted a nuisance which subjected them to odor, physical intrusion of liquid manure, and excessive dust? To establish their nuisance claim, the Johnsons were not required to prove that the cattle confinement facility existed or was operated in violation of zoning regulations or other law. Here, the record included the deposition testimony of the Johnsons which indicated that members of the family experience breathing problems, eye irritation, nausea, and headaches from dust and odor emanating from the cattle confinement facility. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence so applying this standard, the Court concluded that there are genuine issues of material fact as to whether the cattle confinement facility caused a substantial invasion of or interference with the Johnsons' private use and enjoyment of their property. Accordingly, the Partnership and Feeders were not entitled to summary judgment with respect to the private nuisance claim.

Conclusion: The Court found no genuine issues of material fact with respect to the Johnsons' claim that the cattle confinement facility violated zoning regulations and affirmed that portion of the judgment , however, the Court reversed the entry of summary judgment with respect to the Johnsons' private nuisance claim because there existed genuine issues of material fact as to whether the feeding operation substantially invaded or interfered with the Johnsons' use and enjoyment of their property so as to constitute an actionable private nuisance. REMANDED FOR FURTHER PROCEEDINGS.

Workers' Compensation, Dismissal Without Prejudice

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In this case, the Nebraska Supreme Court finds that a workers' compensation court's dismissal without prejudice pursuant to § 48-177 was not in error.

Knapp v. Village of Beaver City, 273 Neb. 156 (2007)

Supreme Court Headnotes

Workers' Compensation:

- [Appeal and Error.] Under Neb. Rev. Stat. § 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

- [Statutes:] (Appeal and Error.) The meaning of a statute is a question of law, and an appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

Statutes:

- [Appeal and Error.] Appellate courts give statutory language its plain and ordinary meaning and will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

- [Legislature:] (Intent.) It is a court's duty to discover, if possible, legislative intent from the statute itself. ••• In order for a court to inquire into a statute's legislative history,

the statute in question must be open to construction, and a statute is open to construction when its terms require interpretation or may reasonably be considered ambiguous.

Dismissal and Nonsuit:

- [Attorney Fees.] The expense of employing attorneys in defending an action and the liability to further litigation over the same matter are not matters justifying the limitation of a plaintiff's right to dismiss without prejudice prior to submission.

Date Filed and Case No.: March 2, 2007. No. S-06-874.

Internet Address: http://www.supremecourt.ne.gov/opinions/2007/march/mar2/s06-874.pdf

Court Appealed From: Nebraska Workers' Compensation Court.

Attorneys for the Appeal: John W. Iliff and Francie C. Riedmann for Linda L. Knapp, appellee. Jamie Gaylene Scholz and Rolf Edward Shasteen for Village of Beaver City, d.b.a. Beaver City Manor, appellant.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Authored By: Stephan, J.

Summary: Linda L. Knapp filed a petition against the Village of Beaver City, d.b.a. Beaver City Manor (the Village), in the Nebraska Workers' Compensation Court on 04/18/05. Trial was set for 01/25/06 but on January 19, Knapp filed a motion to continue, seeking an order of the trial court to continue the trial for not less than 90 days so that Knapp could obtain further medical evidence. That motion was denied by the trial court. Knapp, through her attorney of record, filed for, and was granted, a dismissal without prejudice 1 day before trial of her case in the Workers' Compensation Court. (In 2005, the Nebraska Workers' Compensation Act was amended to include a provision that "[a]n action may be dismissed by the plaintiff, if represented by legal counsel, without prejudice to a future action, before the final submission of the case to the compensation court."). The Village objected to the dismissal but the trial court summarily granted Knapp's dismissal without prejudice. The Village applied for review of the trial court's order by a review panel of the Workers' Compensation Court which affirmed. The Village appealed the review panel's order, and the Nebraska Supreme Court moved the case to their docket.

Did the Workers' Compensation Court err in granting Knapp's dismissal without prejudice? Under Nebraska Revised Statutes § 25-601, plaintiffs in civil actions may dismiss the action without prejudice to a future action "before the final submission of the case to the jury, or to the court where the trial is by the court." Prior to 2005, the Nebraska Workers' Compensation Act had no provision similar to § 25-601(1). In 2005, the Legislature amended § 48-177 to insert the following penultimate sentence: "An action may be dismissed by the plaintiff, if represented by legal counsel, without prejudice to a future action, before the final submission of the case to the compensation court." The Court said that this new language is substantially similar to that of § 25-601(1), except for the requirement that a plaintiff seeking a voluntary dismissal of a workers' compensation action must be represented by counsel. The Court perceived no ambiguity and had no difficulty determining the meaning and intent from the plain language of the statute. The last sentence of § 48-177 pertains to a dismissal by the plaintiff in the circumstance where there is no longer a dispute between the parties. The preceding sentence, added by the 2005 amendment, permits a voluntary dismissal where a dispute still exists, in that such dismissal is "without prejudice to a future action." The Court saw no reason to construe it as substantively different from the right given to civil plaintiffs by § 25-601(1).

Did the Workers' Compensation Court err in failing to provide a reasoned decision as required by rule 11? Rule 11 of the rules of procedure of the Nebraska Workers' Compensation Court provides that at the time of the compensation court's disposition of this case, all parties are entitled to reasoned decisions which contain findings of fact and conclusions of law based upon the whole record which clearly and concisely state and explain the rationale for the decision so that all interested parties can determine why and how a particular result was reached. The "Dismissal Without Prejudice" filed by Knapp in this case states that such dismissal was "pursuant to [Knapp's] right as set forth in Neb. Rev. Stat. §48-177." The Village filed an objection in which it argued that the plaintiff's right to dismiss was discretionary and that no good cause had been shown for the dismissal. The compensation court found that "the dismissal should be granted," which the Court found clearly indicated that it had resolved the parties' conflicting interpretations of § 48-177 in favor of Knapp. No further elucidation was necessary for its independent review of this issue of law.

Conclusion: The Court affirmed the judgment of the compensation court review panel which affirmed the order of the trial judge dismissing Knapp's action without prejudice to its refiling.

AFFIRMED.