State ex rel. Peterson v. Creative Comm. Promotions , 302 Neb. 606 ( 2019 )


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    STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
    Cite as 
    302 Neb. 606
    State of Nebraska ex rel. Douglas J. Peterson,
    Attorney General, appellee, v. Creative
    Community Promotions, LLC, and
    Joel Bieschke, appellants.
    ___ N.W.2d ___
    Filed March 22, 2019.    No. S-18-321.
    1. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques-
    tion of law, upon which an appellate court reaches a conclusion indepen-
    dent of the trial court.
    2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    3. Attorney Fees: Appeal and Error. A trial court’s decision awarding or
    denying attorney fees will be upheld absent an abuse of discretion.
    4. Summary Judgment: Appeal and Error. After trial, the merits should
    be judged in relation to the fully developed record, not whether a
    different judgment may have been warranted on the record at sum-
    mary judgment.
    Appeal from the District Court for Buffalo County: John H.
    M arsh, Judge. Affirmed in part, and in part dismissed.
    Siegfried H. Brauer for appellants.
    Douglas J. Peterson, Attorney General, and James D. Smith
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
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    STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
    Cite as 
    302 Neb. 606
    Papik, J.
    After years of litigation, the State of Nebraska voluntarily
    dismissed claims it had asserted under Nebraska’s Consumer
    Protection Act and the Uniform Deceptive Trade Practices Act
    against Creative Community Promotions, LLC, and its owner
    and operator, Joel Bieschke (collectively CCP). CCP claimed
    that after the State’s dismissal, it was entitled to attorney fees
    under those statutes. The district court denied CCP’s request
    for attorney fees, and CCP now appeals. Because both statutes
    authorize an award of attorney fees only to a “prevailing party”
    and because we find that CCP does not qualify as such, we
    affirm, in part. We also find that we lack jurisdiction to review
    orders vacating summary judgment in favor of CCP and over-
    ruling CCP’s subsequent motion for summary judgment and
    therefore dismiss, in part.
    BACKGROUND
    Allegations of Parties.
    The State of Nebraska commenced this action against
    CCP in September 2014. It alleged that CCP promoted and
    sold ticket packages to a January 2014 concert in Omaha,
    Nebraska. The ticket packages were to include transportation
    from various locations in Nebraska to Omaha, accommoda-
    tions in Omaha, meals, and a concert ticket. The State alleged,
    however, that CCP did not secure all the necessary tickets to
    the concert and that many purchasers traveled to Omaha, only
    to learn they did not have concert tickets. The State alleged
    that while attempts were made to secure seating, many pur-
    chasers missed part of the concert, had to stand for portions
    of it, or were unable to watch the concert altogether. Based on
    these allegations, the State asserted claims under Nebraska’s
    Consumer Protection Act (hereinafter CPA), see 
    Neb. Rev. Stat. § 59-1601
     et seq. (Reissue 2010 & Cum. Supp. 2018),
    and the Uniform Deceptive Trade Practices Act (hereinafter
    UDTPA), see 
    Neb. Rev. Stat. § 87-301
     et seq. (Reissue 2014
    & Cum. Supp. 2018).
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    CCP generally denied the State’s allegations. Additionally,
    CCP contended that Bieschke had made arrangements to pur-
    chase tickets to the concert from an individual who obtained
    and resold entertainment tickets, but that the individual failed
    to provide the tickets. CCP contended that there had been no
    violation of the CPA or the UDTPA. In its answer, it asked
    that the State’s action be dismissed and that CCP be awarded
    attorney fees.
    Procedural History.
    The parties proceeded to litigate the case and encountered
    various twists and turns along the way. Notably, in October
    2015, the district court entered summary judgment in favor of
    CCP. In a written order, the court explained that the evidence
    demonstrated that CCP intended to provide the tickets to its
    customers and thus did not violate the CPA or the UDTPA.
    Shortly thereafter, CCP filed a “Motion for Statutory Attorneys
    Fees,” in which it claimed a right to attorney fees under
    §§ 59-1608 and 87-303.
    Before CCP’s attorney fees motion was heard and ruled
    upon, however, the State moved for reconsideration of the
    summary judgment order. On April 1, 2016, the State’s motion
    was granted in a written order. The district court stated that
    after reviewing its prior order, it determined that it had failed
    to draw all inferences in favor of the State as the nonmoving
    party. Finding that summary judgment was inappropriate, the
    district court vacated its prior order of summary judgment in
    favor of CCP.
    With the court’s previous summary judgment order vacated,
    the parties returned to the litigation battlefield. CCP moved for
    summary judgment again and this time was unsuccessful. CCP
    later filed a document styled as a “Motion to Dismiss,” and it,
    too, was unsuccessful.
    Finally, on January 10, 2018, more than 3 years after it initi-
    ated the action, the State filed a notice of voluntary dismissal.
    The State asserted that it was “voluntarily dismiss[ing] the
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    above captioned matter with prejudice.” In the notice, the State
    specified that it had determined that settlement was “impos-
    sible” and that any financial recovery for Nebraska consumers
    was “extremely unlikely.” The notice concluded as follows:
    “As such, the [State] has made a determination that its limited
    resources can be spent more effectively on other matters than
    by pursuing this case further and respectfully requests that
    prejudice attach to this dismissal.”
    One week later, on January 17, 2018, CCP filed a notice of
    hearing regarding its motion for statutory attorney fees. The
    district court proceeded to hold a hearing on the matter and
    received briefs from the parties regarding whether CCP was
    entitled to attorney fees. In a subsequent written order, the
    district court concluded that it had jurisdiction to decide CCP’s
    claim for attorney fees notwithstanding the State’s voluntary
    dismissal. The district court went on to conclude, however, that
    CCP was not entitled to attorney fees under either the CPA or
    the UDTPA. It found that the UDTPA authorizes an award of
    attorney fees only if “the party complaining of a deceptive trade
    practice has brought an action which he knew to be ground-
    less” and that CCP was not entitled to attorney fees under
    the UDTPA, because the State’s action was not “groundless.”
    The district court found that CCP was not entitled to attorney
    fees under the CPA, because the CPA authorizes the award of
    attorney fees only to a “prevailing party,” § 59-1608(1), and it
    found that the State’s voluntary dismissal did not make CCP a
    prevailing party for purposes of the statute.
    ASSIGNMENTS OF ERROR
    CCP assigns a number of errors, which can be consolidated
    and restated into three: (1) that the district court erred in
    vacating its entry of summary judgment in favor of CCP, (2)
    that the district court erred in denying CCP’s second motion
    for summary judgment, and (3) that the district court erred
    in not awarding attorney fees to CCP under the UDTPA and
    the CPA.
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    STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
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    STANDARD OF REVIEW
    [1] The question of jurisdiction is a question of law, upon
    which an appellate court reaches a conclusion independent of
    the trial court. Millard Gutter Co. v. American Family Ins. Co.,
    
    300 Neb. 466
    , 
    915 N.W.2d 58
     (2018).
    [2] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an indepen-
    dent conclusion irrespective of the decision made by the court
    below. 
    Id.
    [3] A trial court’s decision awarding or denying attorney
    fees will be upheld absent an abuse of discretion. State ex
    rel. Stenberg v. Consumer’s Choice Foods, 
    276 Neb. 481
    , 
    755 N.W.2d 583
     (2008).
    ANALYSIS
    CCP’s Challenges to District Court’s
    Summary Judgment Rulings.
    We begin by addressing CCP’s challenges to the district
    court’s summary judgment rulings. As noted above, CCP chal-
    lenges both the district court’s order vacating its prior summary
    judgment in favor of CCP and its later order denying CCP’s
    motion for summary judgment. We conclude we lack jurisdic-
    tion to address either issue.
    We have held that both the denial of a motion for summary
    judgment and an order vacating a previous entry of summary
    judgment are interlocutory rather than final orders and thus
    not immediately appealable. See, e.g., Doe v. Zedek, 
    255 Neb. 963
    , 
    587 N.W.2d 885
     (1999) (collecting cases holding
    that denial of motion for summary judgment is interlocutory
    and not final order); Otteman v. Interstate Fire & Cas. Co.,
    Inc., 
    171 Neb. 148
    , 
    105 N.W.2d 583
     (1960) (holding that
    order vacating summary judgment was interlocutory and not
    final order). See, also, Deines v. Essex Corp., 
    293 Neb. 577
    ,
    
    879 N.W.2d 30
     (2016) (holding that order vacating dismissal
    and reinstating case did not affect substantial right and was
    thus not appealable). CCP thus could not obtain review of
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    the district court’s summary judgment orders at the time they
    were entered.
    [4] We have further observed that denials of summary judg-
    ment are not appealable or reviewable even after the conclu-
    sion of a case. See Doe v. Zedek, 
    supra.
     As we have explained,
    after trial, “the merits should be judged in relation to the fully
    developed record, not whether a different judgment may have
    been warranted on the record at summary judgment.” 
    Id. at 969
    , 
    587 N.W.2d at 890
    . While we do not appear to have
    previously confronted the same question concerning an order
    vacating a prior grant of summary judgment, the same ration­
    ale would seem to suggest that review of such an order is also
    unavailable at the conclusion of a case.
    We recognize that under the circumstances of this case,
    the State’s voluntary dismissal prevented a “fully developed
    record” from being formed, but we do not believe that makes
    the earlier summary judgment orders reviewable. For while a
    record was not developed, neither is there a merits determina-
    tion for us to make on appeal. The State exercised its right to
    voluntarily dismiss its claims, and while CCP insisted that the
    district court take up its motion for attorney fees, an issue we
    discuss in more detail below, it did not otherwise object to the
    voluntary dismissal. The dismissal thus ended the controversy
    on the State’s claims, and they are no longer subject to appel-
    late review. See State v. Dorcey, 
    256 Neb. 795
    , 
    592 N.W.2d 495
     (1999).
    CCP’s Motion for Attorney Fees:
    Jurisdiction.
    We now turn to CCP’s argument that the district court
    erred by denying its motion for attorney fees. And again,
    we are confronted with a jurisdictional issue. Here, the State
    argues that once it exercised its right to voluntarily dismiss
    its claims, the district court was without power to consider
    CCP’s motion for attorney fees. The State argues that because
    the district court was without jurisdiction to award attorney
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    fees, we are without jurisdiction to consider CCP’s entitle-
    ment to attorney fees on appeal. We disagree for reasons
    explained below.
    The State claims it had a right to voluntarily dismiss its
    claims and thereby terminate the district court’s jurisdiction.
    We have recognized, however, that even when the plaintiff
    has the right to dismiss an action, trial courts have discretion
    to protect rights which “have accrued to [a] defendant as a
    result of the bringing of the action, such as the preservation
    of a counterclaim, the restitution of property of which he has
    been deprived, the recovery of his costs, and the like.” See
    Blue River Power Co. v. Hronik, 
    116 Neb. 405
    , 413, 
    217 N.W. 604
    , 607 (1928). See, also, Millard Gutter Co. v. American
    Family Ins. Co., 
    300 Neb. 466
    , 
    915 N.W.2d 58
     (2018); Feight
    v. Mathers, 
    153 Neb. 839
    , 
    46 N.W.2d 492
     (1951).
    CCP is claiming a right to attorney fees as a result of the
    State’s having brought this action against it. Our case law gen-
    erally treats attorney fees, where recoverable, as an element of
    court costs. See Salkin v. Jacobsen, 
    263 Neb. 521
    , 
    641 N.W.2d 356
     (2002). And as noted above, we have previously recog-
    nized that even when a plaintiff seeks voluntary dismissal, trial
    courts have discretion to protect rights of the defendant that
    accrued as a result of the bringing of the action, including the
    recovery of costs “and the like.” For this reason, we believe
    the district court had the authority to consider CCP’s claim
    that it was entitled to an award of attorney fees notwithstand-
    ing the State’s voluntary dismissal.
    We also observe that this case is not controlled by Kansas
    Bankers Surety Co. v. Halford, 
    263 Neb. 971
    , 
    644 N.W.2d 865
     (2002), a case in which we held that a district court did
    not have jurisdiction to grant the defendant an award of attor-
    ney fees after the plaintiff voluntarily dismissed. In that case,
    however, at the time the plaintiff sought to voluntarily dismiss
    with prejudice, the defendant had no pending motion for attor-
    ney fees. Under those circumstances, we held that once the
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    court dismissed the action, “nothing remained for the court to
    decide.” Id. at 980-81, 
    644 N.W.2d at 872
    .
    The circumstances in this case are different from those in
    Halford. At the time the State sought to voluntarily dismiss,
    CCP had already filed a motion for attorney fees which had
    never been ruled upon. Because CCP claimed a right that
    the district court had the power to protect and because it had
    asserted that right prior to the State’s notice of voluntary dis-
    missal, the district court had the jurisdiction to consider CCP’s
    claim for attorney fees.
    CCP’s Motion for Attorney Fees:
    Merits.
    This leaves the merits of CCP’s motion for attorney fees.
    CCP claims that the district court should have awarded it attor-
    ney fees pursuant to two different statutes, §§ 87-303(b) and
    59-1608(1). Section 87-303(b) provides as follows:
    Costs shall be allowed to the prevailing party unless
    the court otherwise directs. The court in its discretion
    may award attorneys’ fees to the prevailing party if (1)
    the party complaining of a deceptive trade practice has
    brought an action which he or she knew to be groundless
    or (2) the party charged with a deceptive trade practice
    has willfully engaged in the trade practice knowing it to
    be deceptive.
    Similarly, § 59-1608(1) states:
    The Attorney General may bring an action in the name
    of the state against any person to restrain and prevent the
    doing of any act prohibited by the [CPA]. The prevailing
    party may, in the discretion of the court, recover the costs
    of such action including a reasonable attorney’s fee.
    Both statutes authorize the award of attorney fees only to a
    “prevailing party.” We thus begin our analysis with whether
    CCP is a prevailing party. To answer that question, we must
    engage in statutory interpretation.
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    Our basic principles of statutory interpretation generally
    require us to give statutory language its plain and ordinary
    meaning. See Village at North Platte v. Lincoln Cty. Bd. of
    Equal., 
    292 Neb. 533
    , 
    873 N.W.2d 201
     (2016). As the U.S.
    Supreme Court has observed, however, “prevailing party” is
    a “legal term of art.” Buckhannon Board & Care Home, Inc.
    v. West Virginia Dept. of Health and Human Resources, 
    532 U.S. 598
    , 603, 
    121 S. Ct. 1835
    , 
    149 L. Ed. 2d 855
     (2001)
    (Buckhannon).
    A legal term of art is a word or phrase having a specific,
    precise meaning in a given specialty apart from its gen-
    eral meaning in ordinary contexts. See Wisner v. Vandelay
    Investments, 
    300 Neb. 825
    , 
    916 N.W.2d 698
     (2018). When
    legal terms of art are used in statutes, they are to be construed
    and understood according to their term of art meaning. See
    Davis v. Gale, 
    299 Neb. 377
    , 
    908 N.W.2d 618
     (2018) (cit-
    ing 
    Neb. Rev. Stat. § 49-802
    (5) (Reissue 2010)). See, also,
    Hammond v. Stamps.com, Inc., 
    844 F.3d 909
    , 911 (10th Cir.
    2016) (“[w]hen Congress chooses to employ a term of legal
    art like this we typically assume it is employing its accepted
    meaning”).
    In Buckhannon, the case in which the U.S. Supreme Court
    identified “prevailing party” as a term of art, it also explored
    the contours of that meaning. It explained that a “prevailing
    party” is “one who has been awarded some relief by the court.”
    
    Id.,
     
    532 U.S. at 603
    . Applying that concept, the Court held
    that the plaintiff seeking attorney fees as a “prevailing party”
    under federal statutes in the case before it did not qualify. It
    explained that even though the defendant in that case volun-
    tarily ceased the activity challenged by the plaintiff’s suit,
    there was no “necessary judicial imprimatur” on the change
    in relationship. 
    Id.,
     
    532 U.S. at 605
     (emphasis in original). We
    have subsequently relied on Buckhannon to hold that when a
    defendant voluntarily ceases conduct challenged by a plain-
    tiff’s suit without judicial involvement, the plaintiff does not
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    qualify as a “prevailing party” under 
    42 U.S.C. § 1988
     (2012).
    See Simon v. City of Omaha, 
    267 Neb. 718
    , 
    677 N.W.2d 129
     (2004).
    Buckhannon, to be sure, involved different factual circum-
    stances from the case at hand. In Buckhannon, the plaintiff
    brought suit, the defendant voluntarily changed its ways, and
    the case was dismissed as moot. Here, CCP defended itself
    and the State (eventually) dropped the suit. But while the cir-
    cumstances are not exactly the same, they are alike in a cru-
    cial way. In both cases, one side surrendered and, as a result,
    the case concluded without any judicial determination as to
    whether the suit was meritorious. As Buckhannon explains,
    without such a judicial determination, there is no prevailing
    party. With this understanding of the term “prevailing party,” it
    quickly becomes clear that CCP does not qualify in this case.
    The State chose to voluntarily dismiss its claims before any
    judicial determination could be made as to their merits.
    We note that we are not the first court to rely on the
    understanding of prevailing party set forth in Buckhannon to
    conclude that a defendant does not qualify merely because
    a plaintiff voluntarily dismissed a suit with prejudice. See,
    e.g., Bridgeport Music, Inc. v. London Music, U.K., 
    345 F. Supp. 2d 836
     (M.D. Tenn. 2004); Bryant v. MV Transp., Inc.,
    
    231 F.R.D. 480
     (E.D. Va. 2005); Smalley v. Account Services
    Collections, Inc., No. 2:15cv1488, 
    2017 WL 1092678
     (W.D.
    Pa. Mar. 23, 2017) (memorandum opinion); Righthaven LLC
    v. Hill, No. 1:11-cv-00211-JLK, 
    2011 WL 4018105
     (D. Colo.
    Sept. 9, 2011) (unpublished opinion). In each of these cases,
    courts found that because the dismissal did not involve a
    grant of judicial relief, the defendant was not a prevail-
    ing party.
    We acknowledge other cases, some of which are cited by
    CCP, in which defendants were awarded attorney fees as a
    “prevailing party” after a voluntary dismissal with prejudice.
    But we believe those cases are not inconsistent with the result
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    we reach today. To take one illustrative example, in Claiborne
    v. Wisdom, 
    414 F.3d 715
     (7th Cir. 2005), the Seventh Circuit
    found that a defendant was a prevailing party after the plaintiff
    voluntarily dismissed. In that case, however, the plaintiff filed
    a motion to dismiss, presumably under Fed. R. Civ. P. 41(a)(2),
    and the trial court decided the dismissal should be with preju-
    dice. In doing so, the trial court placed its “judicial imprima-
    tur” on the dismissal. See, also, Highway Equipment Co., Inc.
    v. FECO, Ltd., 
    469 F.3d 1027
     (Fed. Cir. 2006) (explaining that
    district court’s exercise of discretion to grant dismissal with
    prejudice under Fed. R. Civ. P. 41(a)(2) constitutes necessary
    judicial imprimatur to confer prevailing party status); Samsung
    Electronics Co., Ltd. v. Rambus, Inc., 
    440 F. Supp. 2d 495
    (E.D. Va. 2006) (same).
    Unlike the cases discussed immediately above, the district
    court here did not order that the case be dismissed with preju-
    dice or make any determination regarding the merits of the
    suit. In fact, the absence of any order from the district court
    dismissing the action with prejudice at least raises the question
    of whether the dismissal was, in fact, with prejudice. We rec-
    ognize that the State’s notice of dismissal purported to dismiss
    with prejudice, but it also invoked 
    Neb. Rev. Stat. § 25-601
    (Reissue 2016), a statute that refers only to dismissals without
    prejudice. It also requested that “prejudice attach to [its] dis-
    missal,” but the district court never took any action to indicate
    that the dismissal was, in fact, with prejudice. We need not,
    however, resolve the question of whether prejudice attached to
    the State’s dismissal, because whether it was with or without
    prejudice, the district court did not find in favor of CCP on
    the merits or otherwise put its imprimatur on the outcome,
    and thus CCP was thus not a “prevailing party” under either
    § 87-303(b) or § 59-1608(1).
    Because CCP was not a “prevailing party” under § 87-303(b)
    or § 59-1608(1) and because both of those statutes authorize
    the award of attorney fees only to a “prevailing party,” we find
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    that the district court did not err in denying CCP’s motion for
    attorney fees.
    CONCLUSION
    As explained above, we lack jurisdiction to review CCP’s
    claim that the district court’s summary judgment orders were
    erroneous. While we do have jurisdiction to review CCP’s
    claim that the district court should have granted its motion for
    attorney fees, we find that the district court did not err in deny-
    ing that motion. Accordingly, we dismiss the portion of the
    appeal seeking review of the court’s summary judgment orders
    and otherwise affirm.
    A ffirmed in part, and in part dismissed.
    Freudenberg, J., not participating.