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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 February 29, 2008

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

• 12(b) Motions, Order of Evaluating Motions
• § 1983 Action, Individual Capacity
• § 1983 Action, Official Capacity, Service
• Adjudication, Felony Escape
• Negligence, Negligent Entrustment, Ownership of Vehicle
• Privity of Estate, Assigment of Lease, Obligations of Assignee

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This § 1983 action came before the Nebraska Supreme Court on a petition for further review, and the Court concluded that the individual defendants sued in this action were sued only in their official capacities and that the district court did not gain personal jurisdiction over them because the plaintiff failed to properly serve them in their official capacities. Because the Nebraska Court of Appeals concluded that the district court properly dismissed the action as to the individual defendants pursuant to rule 12(b)(2), (4), and (5), the Nebraska Supreme Court concluded that the Court of Appeals erred in reversing the order of dismissal as to the individual defendants. They therefore reversed the Court of Appeals’ order and remanded the cause to the Court of Appeals with directions to affirm the district court’s dismissal of the action as to all defendants.

Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Motions to Dismiss:

1.  Rules of the Supreme Court: Pleadings: Service of Process. When a motion to dismiss raises grounds pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient.

Civil Rights:

1.  Public Officers and Employees. In order to sue a public official in his or her individual capacity, a plaintiff in an action pursuant to 42 U.S.C. § 1983 (2000) must expressly and unambiguously state so in the complaint; otherwise, it will be assumed that the defendant is being sued only in his or her official capacity. ••• In actions pursuant to 42 U.S.C. § 1983 (2000), a suit against a public employee in his or her official capacity is merely a suit against the public employer.

Date Filed and Case No.: February 29, 2008. No. S-05-906.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb29/s05-906.pdf

Court Appealed From: Petition for further review from the Court of Appeals, Sievers and Cassel, Judges, and Hannon, Judge, Retired, on appeal thereto from the District Court for York County, Alan G. Gless, Judge.

Attorneys for the Appeal: Duane S. Holmstedt, appellant, pro se. Charles W. Campbell for York County Jail Supervisor (name unknown) et al., appellees.

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

Authored By: Miller-Lerman, J.

Summary: Duane S. Holmstedt filed an action pursuant to 42 U.S.C. § 1983 (2000) against various individual defendants at the York County jail and the York County Sheriff’s Department (collectively defendants). Holmstedt’s pro se allegations are that he was arrested and interrogated by two deputies that he was abused by them on that day and on later occasions while incarcerated in the York County jail. The district court dismissed the action as to all defendants pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b) (rev. 2003), subsections (2), (4), (5) and (6). Holmstedt appealed to the Nebraska Court of Appeals, which concluded that the district court properly dismissed the action as to the York County Sheriff’s Department for lack of personal jurisdiction but erred in dismissing the complaint as to the remaining individual defendants. Holmstedt v. York Cty. Jail Supervisor, 15 Neb. App. 893, 739 N.W.2d 449 (2007). The Court of Appeals ruled that under § 1983, public servants may be sued in their official capacity, in their individual capacity, or both, however, that federal circuit courts disagree on the proper means of determining whether an action is pleaded as one suing a person in his or her official capacity or as one alleging individual liability. Because the Nebraska Supreme Court had not ruled on which method should be used to determine the capacity in which a person is sued under § 1983 in Nebraska state courts, the Court of Appeals concluded that the Nebraska Supreme Court would follow the majority of federal circuits and adopt the “course of proceedings” test. Applying the “course of proceedings” test, here, the Court of Appeals noted that it lacked information regarding some of the factors in the “course of proceedings” test, however, they determined that Holmstedt had sued the individual defendants in their individual capacities. Having so determined, the Court of Appeals further determined that the record showed proper service of process on some of the defendants. Having found no deficiency regarding personal jurisdiction, process, or service of process with respect to the individual defendants, the Court of Appeals concluded that the district court erred in sustaining the individual defendants’ motions to dismiss under rule 12(b)(2), (4), and (5). Regarding the rule 12(b)(6) challenges, the Court of Appeals determined that failure to exhaust remedies was properly categorized as an affirmative defense and concluded that any such failure could be addressed by procedural devices other than a motion to dismiss and that dismissal at this stage was not warranted based on a failure to plead exhaustion and the district court erred. The Nebraska Supreme Court granted the petition for further review.

Should a court consider motions to dismiss under rule 12(b)(2), (4), and (5) before considering whether complaint fails to state a cause of action pursuant to rule 12(b)(6)? The Court reminded that when a motion to dismiss raises both rule 12(b)(1) [subject matter jurisdiction] and rule 12(b)(6) grounds, the court should consider the rule 12(b)(1) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has subject matter jurisdiction. Here relying on Nebraska precedent and federal case law, the Court of Appeals determined that issues of personal jurisdiction, process, and service of process, raised pursuant to rule 12(b)(2), (4), and (5), should have been determined before the district court considered whether the complaint stated a claim under rule 12(b)(6). The Court agreed with the Court of Appeals’ determination and concluded that when a motion to dismiss raises rule 12(b)(6) grounds and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient.

What rule should be followed? The Court said that the rule followed by the Court of Appeals for the Eighth Circuit, rather than “course of proceedings” test, should be used in Nebraska courts to determine whether plaintiff in § 1983 action is suing defendant in individual or in official capacity. “We believe that the rule followed by the Court of Appeals for the Eighth Circuit is reasonable and addresses a valid concern regarding providing sufficient notice to individual defendants, especially where a legal action could result in personal liability. The Eighth Circuit rule is simple for a court to apply, and it is not difficult for a plaintiff to comply with the rule.” Applying the Eighth Circuit rule, the Court reviewed the complaint and concluded that the individual defendants in the present case were not sued in their individual capacities but were sued only in their official capacities. “Holmstedt’s complaint does not expressly and unambiguously state that the individuals were sued in their individual capacities, and under the Eighth Circuit rule, it is therefore assumed, and we conclude, that the individuals were sued only in their official capacities. The contrary ruling of the Court of Appeals is reversed.”

Did Holmstedt properly serve the individual defendants in their official capacities? Having concluded that Holmstedt sued the individual defendants solely in their official capacities, the Court considered the defendants’ motions to dismiss pursuant to rule 12(b)(2), (4), and (5). They concluded that Holmstedt failed to properly serve the defendants in their official capacities and that therefore, the district court did not err in granting the motions to dismiss pursuant to rule 12(b)(2), (4), and (5). Therefore, the reversal of the district court’s order by the Court of Appeals was error and must be reversed. The individuals named in this action were public servants employed by York County, therefore, this suit against employees of York County in their official capacities was a suit against York County. In order to sue the individuals in their official capacities, and thereby to sue York County, Holmstedt was required to make service on York County in compliance with Neb. Rev. Stat. § 25-510.02(2). The statute required service on the chief executive officer or the clerk of the county, rather than on the named county employees. Holmstedt served the named employees, rather than the appropriate official of York County. Holmstedt therefore failed to properly serve York County and by extension failed to serve the individuals in their official capacities.

Because Holmstedt did not properly serve the individuals in their official capacities, the district court did not gain personal jurisdiction over such defendants.

Conclusion: Here, the Court of Appeals affirmed the district court’s dismissal of the action as to the York County Sheriff’s Department pursuant to rule 12(b)(2), (4), and (5), and Holmstedt did not seek further review of such affirmance. Thus, the York County Sheriff’s Department stands dismissed. On further review, the Nebraska Supreme Court concluded that the individual defendants were sued only in their official capacities and that the district court did not gain personal jurisdiction over such defendants because Holmstedt failed to properly serve them in their official capacities. Because they concluded that the district court properly dismissed the action as to the individual defendants pursuant to rule 12(b)(2), (4), and (5), they concluded that the Court of Appeals erred in reversing the order of dismissal as to the individual defendants, and therefore reversed the Court of Appeals’ order. They remanded the cause to the Court of Appeals with directions to affirm the district court’s dismissal of the action as to all defendants. REVERSED AND REMANDED WITH DIRECTIONS.

Back to ShortCuts

This § 1983 action came before the Nebraska Supreme Court on a petition for further review, and the Court concluded that the individual defendants sued in this action were sued only in their official capacities and that the district court did not gain personal jurisdiction over them because the plaintiff failed to properly serve them in their official capacities. Because the Nebraska Court of Appeals concluded that the district court properly dismissed the action as to the individual defendants pursuant to rule 12(b)(2), (4), and (5), the Nebraska Supreme Court concluded that the Court of Appeals erred in reversing the order of dismissal as to the individual defendants. They therefore reversed the Court of Appeals’ order and remanded the cause to the Court of Appeals with directions to affirm the district court’s dismissal of the action as to all defendants.

Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Motions to Dismiss:

1.  Rules of the Supreme Court: Pleadings: Service of Process. When a motion to dismiss raises grounds pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient.

Civil Rights:

1.  Public Officers and Employees. In order to sue a public official in his or her individual capacity, a plaintiff in an action pursuant to 42 U.S.C. § 1983 (2000) must expressly and unambiguously state so in the complaint; otherwise, it will be assumed that the defendant is being sued only in his or her official capacity. ••• In actions pursuant to 42 U.S.C. § 1983 (2000), a suit against a public employee in his or her official capacity is merely a suit against the public employer.

Date Filed and Case No.: February 29, 2008. No. S-05-906.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb29/s05-906.pdf

Court Appealed From: Petition for further review from the Court of Appeals, Sievers and Cassel, Judges, and Hannon, Judge, Retired, on appeal thereto from the District Court for York County, Alan G. Gless, Judge.

Attorneys for the Appeal: Duane S. Holmstedt, appellant, pro se. Charles W. Campbell for York County Jail Supervisor (name unknown) et al., appellees.

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

Authored By: Miller-Lerman, J.

Summary: Duane S. Holmstedt filed an action pursuant to 42 U.S.C. § 1983 (2000) against various individual defendants at the York County jail and the York County Sheriff’s Department (collectively defendants). Holmstedt’s pro se allegations are that he was arrested and interrogated by two deputies that he was abused by them on that day and on later occasions while incarcerated in the York County jail. The district court dismissed the action as to all defendants pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b) (rev. 2003), subsections (2), (4), (5) and (6). Holmstedt appealed to the Nebraska Court of Appeals, which concluded that the district court properly dismissed the action as to the York County Sheriff’s Department for lack of personal jurisdiction but erred in dismissing the complaint as to the remaining individual defendants. Holmstedt v. York Cty. Jail Supervisor, 15 Neb. App. 893, 739 N.W.2d 449 (2007). The Court of Appeals ruled that under § 1983, public servants may be sued in their official capacity, in their individual capacity, or both, however, that federal circuit courts disagree on the proper means of determining whether an action is pleaded as one suing a person in his or her official capacity or as one alleging individual liability. Because the Nebraska Supreme Court had not ruled on which method should be used to determine the capacity in which a person is sued under § 1983 in Nebraska state courts, the Court of Appeals concluded that the Nebraska Supreme Court would follow the majority of federal circuits and adopt the “course of proceedings” test. Applying the “course of proceedings” test, here, the Court of Appeals noted that it lacked information regarding some of the factors in the “course of proceedings” test, however, they determined that Holmstedt had sued the individual defendants in their individual capacities. Having so determined, the Court of Appeals further determined that the record showed proper service of process on some of the defendants. Having found no deficiency regarding personal jurisdiction, process, or service of process with respect to the individual defendants, the Court of Appeals concluded that the district court erred in sustaining the individual defendants’ motions to dismiss under rule 12(b)(2), (4), and (5). Regarding the rule 12(b)(6) challenges, the Court of Appeals determined that failure to exhaust remedies was properly categorized as an affirmative defense and concluded that any such failure could be addressed by procedural devices other than a motion to dismiss and that dismissal at this stage was not warranted based on a failure to plead exhaustion and the district court erred. The Nebraska Supreme Court granted the petition for further review.

Should a court consider motions to dismiss under rule 12(b)(2), (4), and (5) before considering whether complaint fails to state a cause of action pursuant to rule 12(b)(6)? The Court reminded that when a motion to dismiss raises both rule 12(b)(1) [subject matter jurisdiction] and rule 12(b)(6) grounds, the court should consider the rule 12(b)(1) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has subject matter jurisdiction. Here relying on Nebraska precedent and federal case law, the Court of Appeals determined that issues of personal jurisdiction, process, and service of process, raised pursuant to rule 12(b)(2), (4), and (5), should have been determined before the district court considered whether the complaint stated a claim under rule 12(b)(6). The Court agreed with the Court of Appeals’ determination and concluded that when a motion to dismiss raises rule 12(b)(6) grounds and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient.

What rule should be followed? The Court said that the rule followed by the Court of Appeals for the Eighth Circuit, rather than “course of proceedings” test, should be used in Nebraska courts to determine whether plaintiff in § 1983 action is suing defendant in individual or in official capacity. “We believe that the rule followed by the Court of Appeals for the Eighth Circuit is reasonable and addresses a valid concern regarding providing sufficient notice to individual defendants, especially where a legal action could result in personal liability. The Eighth Circuit rule is simple for a court to apply, and it is not difficult for a plaintiff to comply with the rule.” Applying the Eighth Circuit rule, the Court reviewed the complaint and concluded that the individual defendants in the present case were not sued in their individual capacities but were sued only in their official capacities. “Holmstedt’s complaint does not expressly and unambiguously state that the individuals were sued in their individual capacities, and under the Eighth Circuit rule, it is therefore assumed, and we conclude, that the individuals were sued only in their official capacities. The contrary ruling of the Court of Appeals is reversed.”

Did Holmstedt properly serve the individual defendants in their official capacities? Having concluded that Holmstedt sued the individual defendants solely in their official capacities, the Court considered the defendants’ motions to dismiss pursuant to rule 12(b)(2), (4), and (5). They concluded that Holmstedt failed to properly serve the defendants in their official capacities and that therefore, the district court did not err in granting the motions to dismiss pursuant to rule 12(b)(2), (4), and (5). Therefore, the reversal of the district court’s order by the Court of Appeals was error and must be reversed. The individuals named in this action were public servants employed by York County, therefore, this suit against employees of York County in their official capacities was a suit against York County. In order to sue the individuals in their official capacities, and thereby to sue York County, Holmstedt was required to make service on York County in compliance with Neb. Rev. Stat. § 25-510.02(2). The statute required service on the chief executive officer or the clerk of the county, rather than on the named county employees. Holmstedt served the named employees, rather than the appropriate official of York County. Holmstedt therefore failed to properly serve York County and by extension failed to serve the individuals in their official capacities.

Because Holmstedt did not properly serve the individuals in their official capacities, the district court did not gain personal jurisdiction over such defendants.

Conclusion: Here, the Court of Appeals affirmed the district court’s dismissal of the action as to the York County Sheriff’s Department pursuant to rule 12(b)(2), (4), and (5), and Holmstedt did not seek further review of such affirmance. Thus, the York County Sheriff’s Department stands dismissed. On further review, the Nebraska Supreme Court concluded that the individual defendants were sued only in their official capacities and that the district court did not gain personal jurisdiction over such defendants because Holmstedt failed to properly serve them in their official capacities. Because they concluded that the district court properly dismissed the action as to the individual defendants pursuant to rule 12(b)(2), (4), and (5), they concluded that the Court of Appeals erred in reversing the order of dismissal as to the individual defendants, and therefore reversed the Court of Appeals’ order. They remanded the cause to the Court of Appeals with directions to affirm the district court’s dismissal of the action as to all defendants. REVERSED AND REMANDED WITH DIRECTIONS.

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This § 1983 action came before the Nebraska Supreme Court on a petition for further review, and the Court concluded that the individual defendants sued in this action were sued only in their official capacities and that the district court did not gain personal jurisdiction over them because the plaintiff failed to properly serve them in their official capacities. Because the Nebraska Court of Appeals concluded that the district court properly dismissed the action as to the individual defendants pursuant to rule 12(b)(2), (4), and (5), the Nebraska Supreme Court concluded that the Court of Appeals erred in reversing the order of dismissal as to the individual defendants. They therefore reversed the Court of Appeals’ order and remanded the cause to the Court of Appeals with directions to affirm the district court’s dismissal of the action as to all defendants.

Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Motions to Dismiss:

1.  Rules of the Supreme Court: Pleadings: Service of Process. When a motion to dismiss raises grounds pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(6) (rev. 2003) and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient.

Civil Rights:

1.  Public Officers and Employees. In order to sue a public official in his or her individual capacity, a plaintiff in an action pursuant to 42 U.S.C. § 1983 (2000) must expressly and unambiguously state so in the complaint; otherwise, it will be assumed that the defendant is being sued only in his or her official capacity. ••• In actions pursuant to 42 U.S.C. § 1983 (2000), a suit against a public employee in his or her official capacity is merely a suit against the public employer.

Date Filed and Case No.: February 29, 2008. No. S-05-906.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb29/s05-906.pdf

Court Appealed From: Petition for further review from the Court of Appeals, Sievers and Cassel, Judges, and Hannon, Judge, Retired, on appeal thereto from the District Court for York County, Alan G. Gless, Judge.

Attorneys for the Appeal: Duane S. Holmstedt, appellant, pro se. Charles W. Campbell for York County Jail Supervisor (name unknown) et al., appellees.

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

Authored By: Miller-Lerman, J.

Summary: Duane S. Holmstedt filed an action pursuant to 42 U.S.C. § 1983 (2000) against various individual defendants at the York County jail and the York County Sheriff’s Department (collectively defendants). Holmstedt’s pro se allegations are that he was arrested and interrogated by two deputies that he was abused by them on that day and on later occasions while incarcerated in the York County jail. The district court dismissed the action as to all defendants pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b) (rev. 2003), subsections (2), (4), (5) and (6). Holmstedt appealed to the Nebraska Court of Appeals, which concluded that the district court properly dismissed the action as to the York County Sheriff’s Department for lack of personal jurisdiction but erred in dismissing the complaint as to the remaining individual defendants. Holmstedt v. York Cty. Jail Supervisor, 15 Neb. App. 893, 739 N.W.2d 449 (2007). The Court of Appeals ruled that under § 1983, public servants may be sued in their official capacity, in their individual capacity, or both, however, that federal circuit courts disagree on the proper means of determining whether an action is pleaded as one suing a person in his or her official capacity or as one alleging individual liability. Because the Nebraska Supreme Court had not ruled on which method should be used to determine the capacity in which a person is sued under § 1983 in Nebraska state courts, the Court of Appeals concluded that the Nebraska Supreme Court would follow the majority of federal circuits and adopt the “course of proceedings” test. Applying the “course of proceedings” test, here, the Court of Appeals noted that it lacked information regarding some of the factors in the “course of proceedings” test, however, they determined that Holmstedt had sued the individual defendants in their individual capacities. Having so determined, the Court of Appeals further determined that the record showed proper service of process on some of the defendants. Having found no deficiency regarding personal jurisdiction, process, or service of process with respect to the individual defendants, the Court of Appeals concluded that the district court erred in sustaining the individual defendants’ motions to dismiss under rule 12(b)(2), (4), and (5). Regarding the rule 12(b)(6) challenges, the Court of Appeals determined that failure to exhaust remedies was properly categorized as an affirmative defense and concluded that any such failure could be addressed by procedural devices other than a motion to dismiss and that dismissal at this stage was not warranted based on a failure to plead exhaustion and the district court erred. The Nebraska Supreme Court granted the petition for further review.

Should a court consider motions to dismiss under rule 12(b)(2), (4), and (5) before considering whether complaint fails to state a cause of action pursuant to rule 12(b)(6)? The Court reminded that when a motion to dismiss raises both rule 12(b)(1) [subject matter jurisdiction] and rule 12(b)(6) grounds, the court should consider the rule 12(b)(1) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has subject matter jurisdiction. Here relying on Nebraska precedent and federal case law, the Court of Appeals determined that issues of personal jurisdiction, process, and service of process, raised pursuant to rule 12(b)(2), (4), and (5), should have been determined before the district court considered whether the complaint stated a claim under rule 12(b)(6). The Court agreed with the Court of Appeals’ determination and concluded that when a motion to dismiss raises rule 12(b)(6) grounds and any combination of rule 12(b)(2), (4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5) grounds first and should then consider the rule 12(b)(6) grounds only if it determines that it has personal jurisdiction and that process and service of process were sufficient.

What rule should be followed? The Court said that the rule followed by the Court of Appeals for the Eighth Circuit, rather than “course of proceedings” test, should be used in Nebraska courts to determine whether plaintiff in § 1983 action is suing defendant in individual or in official capacity. “We believe that the rule followed by the Court of Appeals for the Eighth Circuit is reasonable and addresses a valid concern regarding providing sufficient notice to individual defendants, especially where a legal action could result in personal liability. The Eighth Circuit rule is simple for a court to apply, and it is not difficult for a plaintiff to comply with the rule.” Applying the Eighth Circuit rule, the Court reviewed the complaint and concluded that the individual defendants in the present case were not sued in their individual capacities but were sued only in their official capacities. “Holmstedt’s complaint does not expressly and unambiguously state that the individuals were sued in their individual capacities, and under the Eighth Circuit rule, it is therefore assumed, and we conclude, that the individuals were sued only in their official capacities. The contrary ruling of the Court of Appeals is reversed.”

Did Holmstedt properly serve the individual defendants in their official capacities? Having concluded that Holmstedt sued the individual defendants solely in their official capacities, the Court considered the defendants’ motions to dismiss pursuant to rule 12(b)(2), (4), and (5). They concluded that Holmstedt failed to properly serve the defendants in their official capacities and that therefore, the district court did not err in granting the motions to dismiss pursuant to rule 12(b)(2), (4), and (5). Therefore, the reversal of the district court’s order by the Court of Appeals was error and must be reversed. The individuals named in this action were public servants employed by York County, therefore, this suit against employees of York County in their official capacities was a suit against York County. In order to sue the individuals in their official capacities, and thereby to sue York County, Holmstedt was required to make service on York County in compliance with Neb. Rev. Stat. § 25-510.02(2). The statute required service on the chief executive officer or the clerk of the county, rather than on the named county employees. Holmstedt served the named employees, rather than the appropriate official of York County. Holmstedt therefore failed to properly serve York County and by extension failed to serve the individuals in their official capacities.

Because Holmstedt did not properly serve the individuals in their official capacities, the district court did not gain personal jurisdiction over such defendants.

Conclusion: Here, the Court of Appeals affirmed the district court’s dismissal of the action as to the York County Sheriff’s Department pursuant to rule 12(b)(2), (4), and (5), and Holmstedt did not seek further review of such affirmance. Thus, the York County Sheriff’s Department stands dismissed. On further review, the Nebraska Supreme Court concluded that the individual defendants were sued only in their official capacities and that the district court did not gain personal jurisdiction over such defendants because Holmstedt failed to properly serve them in their official capacities. Because they concluded that the district court properly dismissed the action as to the individual defendants pursuant to rule 12(b)(2), (4), and (5), they concluded that the Court of Appeals erred in reversing the order of dismissal as to the individual defendants, and therefore reversed the Court of Appeals’ order. They remanded the cause to the Court of Appeals with directions to affirm the district court’s dismissal of the action as to all defendants. REVERSED AND REMANDED WITH DIRECTIONS.

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In this case, the Nebraska Supreme Court affirms an adjudication where the facts of the juvenile’s running away from a hospital appointment (where he had been transported while under the custody of the Office of Juvenile Services) led to an adjudication for felony escape.

In re Interest of Matthew P., 275 Neb. 189 (2008)

Supreme Court Headnotes

Statutes:

1.  Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. ••• Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

Date Filed and Case No.: February 29, 2008. No. S-07-649.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb29/s07-649.pdf

Court Appealed From: Separate Juvenile Court of Lancaster County: Linda S. Porter, Judge.

Attorneys for the Appeal: Dennis R. Keefe and Sarah P. Newell for Matthew P., appellant. Gary Lacey, Alicia B. Henderson, and, on brief, Michelle A. Paxton for State of Nebraska, appellee.

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

Authored By: Stephan, J.

Summary: In a December 1, 2006, dispositional order, the juvenile court committed Matthew P. to the custody of the Office of Juvenile Services (OJS) for “out of home placement at a group home level of care.” Matthew’s commitment was the result of a previous law violation. OJS placed him at a Lincoln group home from which, Matthew absconded twice within the first month. The group home informed OJS that it could no longer keep Matthew at the facility, and OJS therefore issued a detainer for his apprehension and detention (colloquially referred to as a “parole hold.”) The detainer requested that the Lancaster County Youth Services Center (LCYSC) hold Matthew until a hearing could be held seeking to transfer him to a higher level of care. The OJS services officer assigned to Matthew described LCYSC as a “detention center,” and the record indicates that it is a secure facility. Matthew was detained at LCYSC on January 25, 2007. On February 2, Matthew was transported to a medical appointment in Lincoln. Matthew was transported to the appointment but after the appointment, he ran away from the transport employee and was not apprehended until 2 or 3 weeks later. Matthew was adjudicated a child within the meaning of Neb. Rev. Stat. § 43-247(2) (Cum. Supp. 2006) after the separate juvenile court found he had committed an act which would constitute the felony offense of escape from official detention under Neb. Rev. Stat. § 28-912(1) (Reissue 1995). Matthew timely appealed his adjudication.

Did the juvenile court err in adjudicating Matthew because he did not escape from official detention within the meaning of § 28-912(1)? The Nebraska Supreme Court wrote that this appeal turned on the question of whether Matthew was in “official detention” at the time he eluded the transport employee. While the detainer for apprehension and detention issued by OJS is colloquially referred to as a “parole hold,” Matthew was not on “parole” within the meaning of the Office of Juvenile Services Act. Accordingly, the last clause of § 28-912(1) does not apply. In determining whether Matthew was under “official detention” as defined by § 28-912(1), the Court was guided by the familiar principle that statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. On the date in question, Matthew was under the jurisdiction of the juvenile court as a result of his previous adjudication for committing an act which would constitute a law violation. He was committed to OJS, which is charged with oversight and control of certain state juvenile correctional facilities and programs. At the time of his flight, he was placed at a juvenile detention facility and was in the process of being transported back to the facility from a medical appointment. At the time of commitment, the court is required to determine the initial level of treatment. In this case, the court ordered initial treatment at a group home level. OJS made an immediate temporary change without prior court approval (which is allowed under limited circumstances) including when a facility of placement which is not state-owned has asked that the juvenile be removed. That is what occurred in this case.

Matthew argued on appeal that because he was committed to OJS, his running away from the transport officer was simply “absconding” from an OJS commitment and was not an escape from official detention. He alleged that his actions thus do not fall under § 28-912, but instead fall under Neb. Rev. Stat. § 43-410 (Reissue 2004) and if absconding from an OJS placement constituted an escape within the meaning of § 28-912, the provisions of § 43-410 would be unnecessary and redundant. The Court was not persuaded by this argument as it is possible for a juvenile to abscond from an OJS placement or commitment without committing the offense of escape from official detention.

Conclusion: In this case, the facts clearly establish that Matthew was being held in detention pursuant to official proceedings when he fled from the transportation employee. Accordingly, the juvenile court did not err in adjudicating Matthew pursuant to § 43-247(2) as a child who has committed an act which would constitute a felony under the laws of this state. Finding no error, the Court affirmed the judgment of the separate juvenile court. AFFIRMED.

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The issue presented in this appeal to the Nebraska Supreme Court is whether a claim for negligent entrustment of property can be brought against a defendant who had the right to control the property, but was not its legal owner. The Court concluded that such a claim may be brought and the case of Vilas v. Steavenson, 242 Neb. 801, 496 N.W.2d 543 (1993) was overruled.

Dewester v. Watkins, 275 Neb. 173 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  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.

2.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a 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.

Negligence.

1.  It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself or herself in the activity in such a manner as to create an unreasonable risk of harm to others. ••• Negligent entrustment should be defined with reference to control of the entrusted property.

2.  Liability. One who supplies a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his or her youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself or herself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. ••• A defendant’s ownership of entrusted property is not a prerequisite for liability for negligent entrustment. ••• To be liable for negligent entrustment, the defendant must have had the authority to permit or prohibit the entrustee’s use of the entrusted property.

3.  Motor Vehicles. The law requires that an owner use care in allowing others to assume control over and operate his or her automobile, and holds the owner liable if he or she entrusts the automobile to, and permits it to be operated by, a person whom the owner knows or should know to be an inexperienced, incompetent, or reckless driver, or an intoxicated driver, or a driver otherwise incapable of properly operating an automobile without endangering others.

     a.  Damages. A person who authorizes or permits a motor vehicle under his or her control to be driven by an unlicensed driver, in violation of the Motor Vehicle Operator’s License Act, is guilty of negligence and may be liable for damages proximately resulting from the negligent operation of the motor vehicle.

4.  Case Overruled. To the extent that Vilas v. Steavenson, 242 Neb. 801, 496 N.W.2d 543 (1993), holds that legal ownership of entrusted property is an essential element of a negligent entrustment claim, it is overruled.

Date Filed and Case No.: February 29, 2008. No. S-06-230.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb29/s06-230.pdf

Court Appealed From: Petition for further review from the Court of Appeals, Inbody, Carlson, and Moore, Judges, on appeal thereto from the District Court for Dundy County, John J. Battershell, Judge.

Attorneys for the Appeal: Andrew J. Wilson and Kylie A. Wolf for Richard A. Dewester, Personal Representative of the Estate of Lindsey Dewester, Deceased, appellant. Martin J. Troshynski for Kyle W. Watkins, an Individual, appellee.

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

Authored By: Gerrard, J.

Summary: Kyle W. Watkins’ father purchased a vehicle, a Jeep Cherokee, and provided it to Kyle for his use. Three days before Kyle’s 17th birthday, Kyle and a friend had been drinking beer and “cruising around town” in the Cherokee. Kyle and his friend stopped at a local convenience store, where Lindsey DeWester, a 14-year-old girl without a driver’s license, saw them. Kyle knew Lindsey from school, and they had socialized after school and on weekends. Kyle and his friend went into the convenience store bathroom, and when they returned to the Jeep, Lindsey was in the driver’s seat and the keys were in the ignition. Kyle knew Lindsey did not have a driver’s license. Nevertheless, Kyle’s friend got in the front passenger seat, and Kyle sat in the back seat, behind his friend. After Kyle and his friend got in the Jeep, Lindsey took off driving and the three were down a dark county road with an unlit T-shaped intersection. Lindsey lost control of the vehicle and was killed in the resulting accident. The personal representative of Lindsey’s estate, sued Kyle, alleging negligent entrustment of the Jeep. The district court entered summary judgment in favor of Kyle, because the Jeep was owned by Kyle’s father, not Kyle. The Nebraska Court of Appeals affirmed, concluding that it was bound to do so by the holding in Vilas v. Steavenson, 242 Neb. 801, 496 N.W.2d 543 (1993). The estate petitioned for further review, arguing that Vilas should be overruled. The Nebraska Supreme Court granted the estate’s petition for further review.

Did the Court of Appeals err in affirming the district court’s decision sustaining Kyle’s motion for summary judgment, based on the fact that Kyle did not own the Jeep so that the tort of negligent entrustment did not apply? The Court recited the tort of negligent entrustment (Restatement (Second) of Torts § 308).

It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

They added that Restatement, § 390, explains, in a “special application” of § 308, that:

One who supplies . . . a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

While the Court had previously not expressly adopted §§ 308 & 390, they concluded that they accurately reflect Nebraska law. However, the use of the word “owner” had come to be inserted in negligent entrustment cases. In Deck v. Sherlock, 162 Neb. 86, 75 N.W.2d 99 (1956) the Court framed the rule in terms of the “owner” of the automobile, because the defendant in that case was the owner. They adhered to that phrasing in Wagner v. Mines, 203 Neb. 143, 277 N.W.2d 672 (1979), another negligent entrustment case in which the defendant was the owner of the vehicle. “In neither case were we required to, nor did we, address whether legal ownership of the vehicle was required to establish liability” said the Court. But the Court noted that in Vilas v. Steavenson, 242 Neb. 801, 496 N.W.2d 543 (1993) they confronted a situation similar to that presented here, in which the plaintiff sued both a son who had loaned a vehicle to an underage driver and the father who owned the vehicle at issue. The Vilas court discussed the liability of the father at length, concluding that the doctrine of negligent entrustment did not apply to the father because he had not knowingly entrusted the vehicle to the underage driver. The Vilas court then concluded, however, without discussing the issue, that it also appeared that the doctrine of negligent entrustment does not apply to the son since he did not own the vehicle. The Court here found that conclusion was inconsistent with both the Restatement and the overwhelming weight of authority from other courts which have considered the issue, the overwhelming majority of which, concluded that a nonowner who has control of a vehicle can be held liable for negligently entrusting the vehicle. “Holding otherwise” they wrote “produces the paradox that even the grossest negligence can be insulated from liability, so long as the person deciding who can drive a car is not the person who legally owns it.” Here, the district court’s summary judgment was based on the rule announced in Vilas, and the Court of Appeals affirmed that judgment because the doctrine of vertical stare decisis compelled it to strictly follow Vilas. The Court agreed with the estate’s argument that Vilas was wrongly decided and should be overruled. “In other words, to be liable for negligent entrustment, the defendant must have had the authority to permit or prohibit the entrustee’s use of the entrusted property. But control of the entrusted property is the essential element of a negligent entrustment claim, not legal ownership. To the extent that Vilas holds otherwise, it is overruled” said the Court.

Conclusion: A defendant’s ownership of entrusted property is not a prerequisite to liability for negligent entrustment. While the Court recognized that the district court and Court of Appeals concluded otherwise because they were bound by Nebraska Supreme Court precedent, they nonetheless reversed the judgment of the Court of Appeals and remanded the cause to that court with directions to reverse the judgment of the district court and remand the cause for further proceedings. REVERSED AND REMANDED WITH DIRECTIONS.

Stephan, J., CONCURRING wrote that this is an unusual negligent entrustment case in that it involves only two parties: the person alleged to have negligently entrusted the motor vehicle and the personal representative of the party to whom the vehicle was entrusted. Typical negligent entrustment case involves at least three parties, including the person who entrusts the vehicle to another, the entrustee whose negligent operation causes an injury, and the injured party who seeks compensation. In such actions the has held that negligent entrustment standing alone does not establish liability; it must also be shown that the driver to whom the vehicle was entrusted negligently caused the plaintiff’s injury. As a matter of general principle, Justice Stephan agreed with the court’s holding today but reserved judgment on the question of whether a negligent entrustment claim can ever be asserted by or on behalf of the entrustee whose own negligence is a proximate cause of an accident and resulting injury. “There may be other considerations as well. Thus, I concur in the judgment of the court, leaving to another day the question of whether negligent entrustment, standing alone, can establish liability to an entrustee.”

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In this case, the Nebraska Supreme Court notes that while an assignee or transferee of an interest in leased property is liable for a breach of a promise that runs with the land which is broken while the assignee or transferee holds the leasehold estate. However, when a lease is assigned, with no privity of estate, absent a provision obligating a lessee of property for liabilities arising prior to the time the lessee obtained its leasehold interest in the property the lessee/assignee is not liable for the assignor’s failure to fulfill its obligations.

Katherine R. Napleton Trust v. Vatterott Ed. Ctrs., 275 Neb. 182 (2008)

Supreme Court Headnotes

Summary Judgment:

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

2.  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 was granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3.  Proof. The party moving for summ ary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that it is entitled to judgment as a matter of law.

Contracts:

1.  When the terms of a contract are clear, they are to be accorded their plain and ordinary meaning.

2.  Judgments: Appeal and Error. The meaning of a contract is a question of law, in connection with which an appellate court has an obligation to reach its conclusions independently of the determinations made by the court below.

Insurance:

1.  Contracts: Appeal and Error. In interpreting a contract, a court must first determine, as a matter of law, whether the contract is ambiguous.

Date Filed and Case No.: February 29, 2008. No. S-06-1032.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb29/s06-1032.pdf

Court Appealed From: District Court for Douglas County: W. Russell Bowie III, Judge.

Attorneys for the Appeal: Andrew J. Hilger for Katherine R. Napleton Revocable Self-Declaration of Trust, appellant. James D. Garriott for Vatterott Educational Centers, Inc., a Missouri Corporation, appellee.

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

Authored By: McCormack, J.

Summary: The Katherine R. Napleton Revocable Self-Declaration of Trust (Napleton), the lessor of property located in Omaha, Nebraska, brought suit against Vatterott Educational Centers, Inc. (Vatterott), the assignee of the lease, for breach of contract. Napleton alleged that Vatterott was liable for the failure of the assignor-lessee of the property, the Omaha College of Health Careers, Inc. (Omaha College), to pay property taxes in years preceding the assignment of the lease to Vatterott. Vatterott filed a motion for summary judgment, which was granted by the district court. In its order, the district court stated that although Vatterott agreed to pay additional rent under the Assignment Agreement, the Assignment Agreement did not obligate Vatterott to pay accrued but unpaid obligations of Omaha College. The district court then found as a matter of law that an assignee is not liable for covenants or agreements of the assignor, broken before the assignee acquired the leasehold unless agreed to by the parties at the time the lease was entered into. Here the prior obligations of Omaha College . . . became causes of action in favor of Napleton against Omaha College at the time those covenants were broken. Napleton appealed.

Must an assignee of a lease for real property perform obligations not fulfilled by the assignor of the lease prior to the lease assignment? Napleton argued that the property tax delinquency was an obligation under the 1999 lease while Napleton claimed that obligations under the 1999 lease were amended prospectively from the date of the Assignment Agreement, but were not terminated. The Nebraska Supreme Court noted that it has generally been stated that an assignee or transferee of an interest in leased property is liable for a breach of a promise that runs with the land and which is broken while the assignee or transferee holds the leasehold estate. But the assignee or transferee is not liable for a promise that runs with the land if the promise is broken before the assignment or transfer. In the present case, Napleton and Vatterott were not in privity of estate when many of these tax liabilities accrued. The lack of privity of estate between Napleton and Vatterott means that Vatterott is not liable for any breaches of the lease terms prior to the assignment unless the parties contracted otherwise.

What did the assignment agreement say? The Assignment Agreement here provides in part: “[Napleton] and [Omaha College] agree to terminate [Omaha College’s] rights and obligations under the 1999 Lease and to assign [Omaha College’s] rights and obligations therein to [Vatterott].” The Court said the language of the Assignment Agreement is clear and unambiguous. Omaha College’s rights and obligations under the 1999 lease were terminated as of October 5, 2001, the date the Assignment Agreement was executed. The Assignment Agreement does not provide that Vatterott is liable for any obligations arising prior to the date of assignment.

Conclusion: The Court ruled that absent a provision obligating Vatterott for liabilities arising prior to the time Vatterott obtained its leasehold interest in the property, the lack of privity of estate in this case compelled them to conclude that Vatterott is not liable for Omaha College’s failure to fulfill Omaha College’s obligations under the 1999 lease.

AFFIRMED.