Brothers v. Kimball Cty. Hosp. ( 2015 )

Nebraska Advance Sheets
BROTHERS v. KIMBALL CTY. HOSP. 879
Cite as 289 Neb. 879
to attorney fees or the issues raised in the cross-appeals of
Frederick and Falls City. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it.33
V. CONCLUSION
For the foregoing reasons, we vacate and reverse the writ of
mandamus and the order awarding attorney fees to Frederick,
and we remand the cause to the district court with directions
to dismiss.
Vacated and reversed, and
remanded with directions.
33
Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846 N.W.2d 634 (2014);
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
Bradly Brothers, appellant, v. Kimball County
Hospital, doing business as Kimball Health
Services, et al., appellees.
___ N.W.2d ___
Filed January 16, 2015. No. S-13-725.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Summary Judgment: 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 that party the benefit of all reasonable
inferences deducible from the evidence.
4. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
5. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
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880 289 NEBRASKA REPORTS
6. Counties: Health Care Providers: Political Subdivisions. A county hospital
is not merely an agency of the county, but, rather, is a separate and independent
political subdivision.
7. Appeal and Error. Error without prejudice provides no ground for relief
on appeal.
8. Motions to Dismiss: Rules of the Supreme Court: Summary Judgment:
Pleadings. When matters outside the pleading are presented by the parties and
accepted by the trial court with respect to a motion to dismiss under Neb. Ct. R.
Pldg. § 6-1112(b)(6), the motion shall be treated as a motion for summary judg-
ment and the parties shall be given a reasonable opportunity to present all mate-
rial made pertinent to such a motion by statute.
9. Courts: Appeal and Error. Upon further review from a judgment of the
Nebraska Court of Appeals, the Nebraska Supreme Court will not reverse a judg-
ment which it deems to be correct simply because its reasoning differs from that
employed by the Court of Appeals.
10. Political Subdivisions Tort Claims Act: Jurisdiction. The filing of presentment
of a claim to the appropriate political subdivision is a condition precedent to
commencement of a suit under the Political Subdivisions Tort Claims Act.
11. Political Subdivisions Tort Claims Act: Time. Neb. Rev. Stat. § 13-919(3)
(Reissue 2012) does not extend the time for filing a claim under the Political
Subdivisions Tort Claims Act against a different or additional political subdivi-
sion after one political subdivision denies the claim.
12. Political Subdivisions Tort Claims Act: Notice. A notice of claim filed only
with one unauthorized to receive a claim pursuant to Neb. Rev. Stat. § 13-905
(Reissue 2012) does not substantially comply with the notice requirements of the
Political Subdivisions Tort Claims Act.
Petition for further review from the Court of Appeals,
Moore, Pirtle, and Riedmann, Judges, on appeal thereto from
the District Court for Kimball County, Derek C. Weimer,
Judge. Judgment of Court of Appeals affirmed.
Sterling T. Huff, of Island & Huff, P.C., L.L.O., for
appellant.
Mark A. Christensen, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellees Kimball County Hospital and
Trevor W. Bush, M.D.
Vincent Valentino and Brandy Johnson for appellee Kimball
County.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Nebraska Advance Sheets
BROTHERS v. KIMBALL CTY. HOSP. 881
Cite as 289 Neb. 879
Cassel, J.
INTRODUCTION
After receiving treatment at a county hospital, a patient filed
a tort claim pursuant to the Political Subdivisions Tort Claims
Act (Act) and later filed suit against the county, the hospital,
and a physician. The district court dismissed the county and
entered summary judgment in favor of the hospital and the
physician. The Nebraska Court of Appeals affirmed.
We conclude that as a matter of law, a county hospital is
a separate and distinct political subdivision from the county.
Because the county could have no liability under the facts
alleged, any error in failing to allow the patient to present
evidence on the county’s motion to dismiss was harmless. And
because the patient did not file his tort claim with the statu-
torily designated individual, he failed to comply with notice
requirements of the Act. We therefore affirm the decision of the
Court of Appeals.
BACKGROUND
Medical Treatment
and Tort Claim
On December 18, 2010, Bradly Brothers suffered inju-
ries in a single-vehicle accident. As a result of his inju-
ries, Brothers received medical treatment at Kimball County
Hospital on December 18, 20, and 30. Brothers continued
to suffer pain, and one of his fingers was visibly bent. A
chiropractor subsequently took an x ray of Brothers’ finger
and discovered multiple fractures. On April 5, 2011, Brothers
filed a tort claim pursuant to the Act with the Kimball County
clerk, the chairperson of the Kimball Health Services Board
of Trustees, and the chief executive officer (CEO) of Kimball
Health Services.
P leadings in Lawsuit
On July 6, 2012, Brothers filed a complaint against Kimball
County (County); the Kimball Health Services Board of
Trustees; Kimball Health Services; Trevor W. Bush, M.D.;
and another employee of the hospital. His complaint set forth
causes of action for medical malpractice, for violation of his
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882 289 NEBRASKA REPORTS
right to privacy under certain statutes or “false light” violation
of privacy, and for breach of contract.
The County filed a motion to dismiss, alleging that the
complaint failed to state a claim upon which relief could be
granted, that the County was not the employer of personnel at
Kimball Health Services, and that the County was not involved
in the health care services provided to Brothers. The County
also filed a motion for protective order, asking that no discov-
ery against it be allowed for the same reasons contained in the
motion to dismiss.
Kimball County Hospital and Bush filed an answer to
Brothers’ complaint. The answer stated that Kimball County
Hospital had been erroneously referred to as “Kimball Health
Services” and that there was no legal entity named “‘Kimball
Health Services Board of Trustees.’” The answer admitted that
Kimball County Hospital was a county hospital and a political
subdivision and that Bush was an employee of Kimball County
Hospital. Brothers thereafter moved to file an amended com-
plaint to add Kimball County Hospital as a defendant.
Brothers later filed a second amended complaint against
“Kimball County Hospital, d/b/a Kimball Health Services,”
and Bush. He alleged that Bush was an employee of Kimball
County Hospital. In the responsive pleading of Kimball County
Hospital and Bush, they asserted, among other things, that
Brothers failed to comply with the notice requirements of
the Act.
District Court’s Disposition
In the analysis section of this opinion, we provide more
detail regarding the procedures followed in disposing of the
County’s motion to dismiss. The court’s first order treated it
as a motion for summary judgment and granted the motion.
Upon Brothers’ motion to alter or amend the judgment, the
court “clarif[ied]” that it granted the County’s motion to
dismiss and overruled Brothers’ “request” to submit addi-
tional evidence.
Kimball County Hospital and Bush subsequently moved for
summary judgment. The evidence established that under the
bylaws of Kimball County Hospital, the secretary “shall act as
Nebraska Advance Sheets
BROTHERS v. KIMBALL CTY. HOSP. 883
Cite as 289 Neb. 879
custodian of all records and reports of the Board of Trustees”
and “shall be responsible for the keeping and reporting of
adequate records of all transactions and of the minutes of all
meetings of the Board of Trustees.” Despite the bylaws’ allo-
cation of responsibility, the CEO of Kimball County Hospital
testified in a deposition that he was the custodian of legal doc-
uments for the hospital, that he received Brothers’ tort claim in
April 2011, and that he discussed the tort claim with members
of the board of trustees, including the secretary. The district
court found that Brothers did not file a copy of his tort claim
with the secretary of the board of trustees for Kimball County
Hospital and entered summary judgment in favor of Kimball
County Hospital and Bush.
Court of Appeals’ Decision
Upon Brothers’ appeal, the Court of Appeals affirmed in
a memorandum opinion filed on July 1, 2014. The Court of
Appeals first determined that the district court did not err in
failing to allow Brothers to present evidence to oppose the
County’s motion to dismiss and in granting the motion.
Regarding the summary judgment granted to Kimball County
Hospital and Bush, the Court of Appeals reasoned that Brothers
did not timely file his claim with the secretary of the board of
trustees—the person “designated by Kimball County Hospital
to receive tort claims”—and thereby failed to comply with the
filing requirements of the Act. Accordingly, the court rejected
Brothers’ argument that by filing the tort claim with the person
who actually maintained the official records, he had complied
with the statute.
We granted Brothers’ petition for further review.
ASSIGNMENTS OF ERROR
Brothers assigns, consolidated and restated, that the Court of
Appeals erred by (1) finding that the County was properly dis-
missed and failing to reverse and remand for a summary judg-
ment hearing at which Brothers would have the opportunity
to present evidence and (2) determining that Kimball County
Hospital and Bush were properly dismissed based on lack of
service of the tort claim pursuant to the Act.
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884 289 NEBRASKA REPORTS
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo.1 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.2
[3] 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 that
party the benefit of all reasonable inferences deducible from
the evidence.3
[4] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.4
[5] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.5
ANALYSIS
Whether County Hospital Is Separate
Legal Entity From County
Kimball County Hospital is a county-owned hospital created
under Neb. Rev. Stat. §§ 23-3501 to 23-3527 (Reissue 2012 &
Cum. Supp. 2014) (county hospital statutes). At oral argument,
all parties agreed that the county hospital statutes control. But
the parties interpret them differently. Brothers contends that
the hospital is not a separate legal entity from the county. The
other parties disagree.
1
Bruno v. Metropolitan Utilities Dist., 287 Neb. 551, 844 N.W.2d 50 (2014).
2
Id.
3
Rice v. Bixler, 289 Neb. 194, 854 N.W.2d 565 (2014).
4
SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 N.W.2d 745 (2014).
5
Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 195 (2014).
Nebraska Advance Sheets
BROTHERS v. KIMBALL CTY. HOSP. 885
Cite as 289 Neb. 879
Brothers conceded at argument that resolution of this dispute
is the “linchpin” to our decision. Thus, we must first decide
whether a county hospital is a separate political subdivision
from the county such that the county could have no liability
for the acts of the hospital and its employees. The issue has
not been squarely addressed in our case law, so we begin by
examining our statutes.
A county hospital is not explicitly identified as a political
subdivision, either in the Act or in the county hospital stat-
utes. The Act’s definition of “[p]olitical subdivision” itemizes
“villages, cities of all classes, counties, school districts, learn-
ing communities, [and] public power districts.”6 Obviously,
a county hospital is not included in this list. But the County
correctly argues that the Act’s definition also includes a catch-
all—“all other units of local government.”7 Thus, a county
hospital could fall within the catchall. And where it was not
disputed, we have accepted both a county and a county-owned
hospital as political subdivisions subject to the Act.8 Similarly,
the county hospital statutes do not include express language
classifying a county hospital as a body corporate and politic.
In numerous instances, the Legislature has characterized a
particular public entity as either a “body corporate and politic”
or a “body politic and corporate.”9 But the absence of this
language in the county hospital statutes does not settle the
6
See Neb. Rev. Stat. § 13-903(1) (Reissue 2012).
7
Id.
8
See Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003).
9
See, e.g., Neb. Rev. Stat. §§ 2-224(2)(g) (Reissue 2012) (elected county
fair board); 3-611 (Reissue 2012) (board of airport authority); 13-1303
(Reissue 2012) (public building commission); 13-2519 (Reissue 2012)
(joint public agency); 23-3533 (Reissue 2012) (hospital district); 23-3588
(Reissue 2012) (hospital authority); 31-369 (Reissue 2008) (drainage
district); 31-505 (Reissue 2008) (sanitary district); 31-732 (Reissue
2008) (sanitary and improvement district); 39-868 (Reissue 2008) (bridge
commission); 39-1606(3) (Reissue 2008) (road improvement district);
46-1005 (Reissue 2010) (rural water district); 70-608 (Reissue 2009)
(public power and irrigation district); 70-805 (Reissue 2009) (rural power
district); 70-1406(4) (Reissue 2009) (joint public power authority); and
71-1575(16) (Reissue 2009) (local housing agency).
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question. To do so, we must examine the county hospital stat-
utes in detail.
In order to predict the outcome of this examination, the
district court reviewed two of our decisions. In one case, we
concluded that a city airport authority was an independent
political subdivision.10 Because of the subsidiary’s independent
status, the parent municipal corporation was not liable for torts
of the airport authority. In the other decision, we determined
that a municipal utility was not a separate entity but only an
agency or department of the city.11 Thus, the utility’s liability
for a workers’ compensation claim barred a separate tort action
against the city. While these cases provide some assistance,
our decision requires a close examination of the structure and
content of the county hospital statutes.
Under the county hospital statutes, the county makes an
initial decision whether to establish or acquire a hospital facil-
ity. The Legislature authorized a county board to issue and
sell bonds for the construction of a hospital after the question
of the issuance of the bonds had been submitted to the voters
of the county.12 The county board appoints a board of trustees
for the hospital13 and establishes the salary of the members of
the board of trustees.14 The county board may remove a mem-
ber of the board of trustees for any reason and is responsible
for filling the vacancy of any member.15 In this sense, the
county board’s relationship with the hospital board of trust-
ees resembles the relationship that existed at the time of the
original enactment of the county hospital statutes between a
general corporation’s stockholders and its board of directors.16
10
See Lock v. City of Imperial, 182 Neb. 526, 155 N.W.2d 924 (1968).
11
See Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).
12
See § 23-3501.
13
See § 23-3502(1).
14
See § 23-3503.
15
See § 23-3502(6).
16
See, e.g., Neb. Rev. Stat. §§ 21-105 (stock requirements); 21-111 (general
powers of board of directors); 21-113 (directors’ term of office); 21-135
(stockholder election of directors); and 21-168 (displacement of directors)
(Reissue 1943).
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BROTHERS v. KIMBALL CTY. HOSP. 887
Cite as 289 Neb. 879
In effect, the hospital is the corporation, the county board
comprises its “stockholders,” and the hospital board of trustees
operates as the hospital’s “board of directors.”
The county hospital statutes specify that a few major deci-
sions require the county board’s approval. If the board of trust-
ees proposes to dispose of “all or substantially all of the facil-
ity or property,” the county board must approve.17 Similarly,
county board approval is required to issue revenue bonds for
which the revenue of the facility has been pledged.18 And
county board approval must be secured for an improvement
or addition to the hospital that costs more than 50 percent of
the hospital’s replacement cost.19 But these are the exceptions.
Except for these major decisions, complete control is vested
in the board of trustees. And this also parallels the statutory
requirements of the general corporation law for stockhold-
ers’ approval at the time of enactment of the county hospi-
tal statutes.20
Under the county hospital statutes, the board of trustees
is responsible for the operation of the hospital. The board of
trustees is charged with adopting rules for its own guidance
and for governance of the hospital.21 It has “the authority to
pay all bills and claims due and owing by the facility.”22 The
board of trustees also has “exclusive” control over “expendi-
tures of all money collected to the credit of the fund for any
such facility,”23 “all improvements or additions to the facil-
ity and equipment,”24 and “supervision, care, and custody of
the grounds, rooms, buildings, and other property purchased,
17
See § 23-3504(3).
18
See § 23-3504(4).
19
See § 23-3504(6).
20
See, e.g., Neb. Rev. Stat. §§ 21-151 (amendment of articles of incorporation);
21-158 (reduction of capital); 21-183 (dissolution); 21-1,104 (merger);
and 21-1,113 (disposition of all or substantially all property and assets)
(Reissue 1943).
21
See § 23-3505(2).
22
§ 23-3504(8).
23
§ 23-3504(5).
24
§ 23-3504(6).
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888 289 NEBRASKA REPORTS
c­ onstructed, leased, or set apart for the purposes set forth under
[§] 23-3501.”25
The board of trustees is also responsible for the staff of
the hospital. The board of trustees shall adopt bylaws that
govern the hospital’s medical staff, approve the appointment
of such staff, and supervise the quality of medical care and
services provided at the hospital.26 The board of trustees has
the authority to pay the salaries of all hospital employees27
and to establish and fund a retirement plan for the benefit of
its full-time employees.28 Thus, the hospital’s board of trust-
ees, not the county board, is responsible for the hospital’s
employees.
The county hospital statutes also contain provisions regard-
ing fees for services. The governing board of each hospital
is responsible for establishing rates and fees to be charged.29
Any person to whom care and services have been rendered is
liable for the costs and fees of such care and services to the
appropriate county which maintains and operates the hospi-
tal.30 But if suit is necessary to recover such costs and fees,
it is to be brought in the name of the board of trustees of
the facility.31
Section 23-3523 was recently amended, and Brothers
attrib­utes significance to its former language. At the time
Brothers’ claim arose, the statute required suit to recover
costs and fees for services to be brought in the name of the
county maintaining and operating the hospital.32 Effective
April 6, 201233 (shortly before the hearing on the County’s
25
§ 23-3504(7).
26
See § 23-3505(4).
27
Id.
28
§ 23-3526(1).
29
See § 23-3521.
30
See § 23-3522.
31
See § 23-3523.
32
See § 23-3523 (Reissue 2007).
33
See 2012 Neb. Laws, L.B. 995.
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BROTHERS v. KIMBALL CTY. HOSP. 889
Cite as 289 Neb. 879
motion to dismiss), the statute was amended to require such
a suit to be brought in the name of the hospital’s board
of trustees.34
But Brothers’ reliance on the previous language of this sec-
tion is misplaced. This action is not one brought on behalf of
the hospital to recover costs and fees for care and services.
And because of the nearly complete authority given to the
board of trustees throughout the county hospital statutes, we
do not attribute any special significance to the statute’s for-
mer language.
[6] Considering the county hospital statutes as a whole, we
conclude that a county hospital is a separate legal entity from
the county. The hospital’s governing body is responsible for
formulating rules to guide itself. Further, it is the board of
trustees—not the county—that has the authority to pay claims
against the hospital. We conclude that a county hospital is not
merely an agency of the county, but, rather, is a separate and
independent political subdivision.
One caveat should be noted. The parties do not dispute
that Kimball County has a population of fewer than 200,000
inhabitants and, thus, falls within the first subsection mandat-
ing that the county board appoint a separate board of trustees.35
The second subsection governs counties having 200,000 or
more inhabitants, and permits the county board, “in lieu of
appointing a board of trustees,” to “elect to serve as the board
of trustees of [the hospital].”36 Our conclusion is limited to the
situation governed by the first subsection, and we express no
opinion regarding the legal status of a county hospital where
the county board may and does elect to serve as the board
of trustees.
Because the county hospital is a separate legal entity and
control of the hospital’s employees is entrusted to that entity,
it necessarily follows that the county has no liability for the
acts of a county hospital’s employees. With that understanding
34
See § 23-3523 (Reissue 2012).
35
See § 23-3502(1).
36
See § 23-3502(2).
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in place, we turn to the issues raised in Brothers’ petition for
further review.
P rocedure Concerning
Motion to Dismiss
Brothers contends that a lack of procedural process by the
district court concerning the County’s motion to dismiss is the
crux of this case, because he was never given an opportunity
to present his evidence in opposition to the motion to dismiss
once it was converted to a motion for summary judgment.
Although we do not approve of the procedure undertaken by
the district court, we find no reversible error.
During the August 2012 hearing, the district court first con-
sidered the County’s motion to dismiss and the County offered
evidence in support of its motion. Brothers objected to the
receipt of the exhibits and requested a continuance in order
to conduct discovery and prepare further affidavits. The court
stated that it would treat the motion as one for summary judg-
ment, and it set a further hearing for September 4. But before
that date arrived, the parties filed a stipulation to continue the
hearing until the court ruled on the motion for protective order,
and the court adopted the stipulation.
Without holding a further hearing or receiving any evidence
from Brothers, the district court later granted the County’s
motion to dismiss, which it continued to treat as a motion
for summary judgment. The court also determined that the
County’s motion for protective order was moot.
After the district court granted the County’s motion, Brothers
filed a timely motion to alter or amend the order, pointing out
that the court approved the stipulation of the parties to continue
the hearing on the motion to dismiss until the court ruled on
the motion for protective order. The motion asked the court to
set aside its order and to permit him to obtain affidavits. In
response to Brothers’ motion, the court stated that “to clarify
the record,” it had granted the County’s motion for protective
order and motion to dismiss. In a footnote, the court over-
ruled Brothers’ request to submit additional evidence, stat-
ing that it ruled on the motion to dismiss by reviewing the
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BROTHERS v. KIMBALL CTY. HOSP. 891
Cite as 289 Neb. 879
pleadings and the law and that the evidence submitted by the
County was “largely irrelevant to the question of law raised in
the ­[m]otion.”
[7,8] Although the procedure used by the district court
is not ideal, error without prejudice provides no ground for
relief on appeal.37 Brothers correctly points out that when
matters outside the pleading are presented by the parties and
accepted by the trial court with respect to a motion to dismiss
under Neb. Ct. R. Pldg. § 6-1112(b)(6), the motion “shall be
treated” as a motion for summary judgment and the parties
shall be given a reasonable opportunity to present all mate-
rial made pertinent to such a motion by statute.38 But we have
previously determined that where a court received evidence
which converted a motion to dismiss into a motion for sum-
mary judgment, but did not give a party notice of the changed
status of the motion, “there was no prejudice, because the
motions presented an issue of law of which [the party] was
notified in the motions to dismiss.”39 Because we have already
determined that as a matter of law, a county hospital is a legal
entity and political subdivision separate from the county itself,
the County could have no liability under the facts alleged by
Brothers. Accordingly, any error by the district court in failing
to allow Brothers an opportunity to present evidence on the
issue was harmless.
[9] Although our reasoning differs to some degree from that
of the Court of Appeals, we reach the same result, i.e., the
matter does not need to be reversed and remanded to allow
Brothers an opportunity to present evidence. Upon further
review from a judgment of the Court of Appeals, this court will
not reverse a judgment which it deems to be correct simply
because its reasoning differs from that employed by the Court
of Appeals.40
37
See In re Interest of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008).
38
See DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).
39
Corona de Camargo v. Schon, 278 Neb. 1045, 1050, 776 N.W.2d 1, 7
(2009).
40
State v. Moore, 276 Neb. 1, 751 N.W.2d 631 (2008).
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Filing of Tort Claim
Brothers also argues that the Court of Appeals erred in
determining that Kimball County Hospital and Bush were
properly dismissed due to Brothers’ failure to meet the Act’s
filing requirements. Within 1 year of the accrual of Brothers’
claim, he submitted a written claim to the Kimball County
clerk, the chairperson of the Kimball Health Services Board
of Trustees, and the CEO of Kimball Health Services. The
Court of Appeals determined that because Brothers did not file
the claim with the secretary of the Kimball County Hospital
board of trustees, he did not satisfy the filing requirements.
We agree.
[10] The filing of presentment of a claim to the appropri-
ate political subdivision is a condition precedent to com-
mencement of a suit under the Act.41 Neb. Rev. Stat. § 13-905
(Reissue 2012) provides:
All tort claims under the . . . Act . . . shall be filed with
the clerk, secretary, or other official whose duty it is to
maintain the official records of the political subdivision,
or the governing body of a political subdivision may pro-
vide that such claims may be filed with the duly consti-
tuted law department of such subdivision.
Brothers makes three arguments that he sufficiently complied.
We find no merit to any of these arguments.
First, Brothers maintains that he satisfied the Act because
he filed his original claim with the county clerk. But because
Kimball County Hospital is a distinct legal entity from the
County and the County could have no liability under the facts
alleged, service on the Kimball County clerk did not suffice to
comply with § 13-905 as to Kimball County Hospital.
Second, Brothers asserts that his amended tort claim met
the filing requirement. On August 30, 2012, Brothers filed
an amended tort claim with a number of individuals, includ-
ing the secretary of the Kimball County Hospital/Kimball
Health Services Board of Trustees. According to the bylaws
of Kimball County Hospital, the secretary was the person
41
See Jessen v. Malhotra, supra note 8.
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whose duty it was to maintain the official records of Kimball
County Hospital. However, the amended tort claim was not
filed within 1 year after Brothers’ claim accrued, as the Act
required.42 Thus, the amended tort claim failed to timely com-
ply with the Act.
Brothers attempts to avoid the time bar by relying on
§ 13-919. He claims that the statute “grant[s] relief to re-file
when it comes to the attention of a party that there was an
alleged service problem.”43 Brothers does not identify the sub-
section that he claims is applicable. We assume that he is rely-
ing on § 13-919(3), which provides:
If a claim is made or a suit is begun under the act and
a determination is made by the political subdivision or
by the court that the claim or suit is not permitted under
the act for any other reason than lapse of time, the time
to make a claim or to begin a suit under any other appli-
cable law of this state shall be extended for a period of
six months from the date of the court order making such
determination or the date of mailing of notice to the
claimant of such determination by the political subdivi-
sion if the time to make the claim or begin the suit under
such other law would otherwise expire before the end of
such period.
[11] But § 13-919(3) does not save Brothers’ amended
tort claim. After Brothers commenced suit under the Act, the
County responded that it was not the employer of personnel at
Kimball Health Services and Kimball County Hospital asserted
that it had been erroneously referred to as “Kimball Health
Services” and that there was no legal entity named “‘Kimball
Health Services Board of Trustees.’” Thus, Brothers seems to
argue that the political subdivision determined that “suit [was]
not permitted under the act for any other reason than lapse of
time.”44 But Brothers continued to assert a claim under the
42
See Neb. Rev. Stat. § 13-919(1) (Reissue 2012).
43
Memorandum brief for appellant in support of petition for further review
at 9.
44
See § 13-919(3).
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894 289 NEBRASKA REPORTS
Act and did not “make a claim or . . . begin a suit under any
other applicable law of this state.”45 Section 13-919(3) does not
extend the time for filing a claim under the Act against a differ-
ent or additional political subdivision after one political subdi-
vision denies the claim.46 We conclude that Brothers’ amended
claim was time barred.
Finally, Brothers contends that he satisfied the filing require-
ment by filing the tort claim with the person who actually
maintains the records of the political subdivision. Although the
secretary of the board of trustees of Kimball County Hospital
had the duty to maintain the records of the hospital under the
bylaws, it was the CEO of Kimball County Hospital who actu-
ally maintained the records. And Brothers filed his initial tort
claim with the CEO.
[12] But filing the tort claim with an official who does not
have the duty to maintain the official records of the politi-
cal subdivision does not satisfy the statute. As the Court of
Appeals recognized, “The statute focuses on who has the duty
to keep the records, not on who may actually do so.” Although
the CEO maintained the official records of Kimball County
Hospital, under the bylaws, it was not his duty to do so. A
notice of claim filed only with one unauthorized to receive a
claim pursuant to § 13-905 does not substantially comply with
the notice requirements of the Act.47
We addressed a similar situation in Estate of McElwee v.
Omaha Transit Auth.48 In that case, a tort claim regarding a
personal injury was filed with the political subdivision’s direc-
tor of administration and human resources (administrator) and
the evidence established that the administrator was respon-
sible for overseeing claims for personal injury. The evidence
showed that the administrator had acknowledged claims in
45
See id.
46
Mace-Main v. City of Omaha, 17 Neb. Ct. App. 857, 773 N.W.2d 152 (2009).
47
Willis v. City of Lincoln, 232 Neb. 533, 441 N.W.2d 846 (1989). See, also,
Woodard v. City of Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999); Lowe v.
Lancaster Cty. Sch. Dist. 0001, 17 Neb. Ct. App. 419, 766 N.W.2d 408 (2009).
48
Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461
(2003).
Nebraska Advance Sheets
BROTHERS v. KIMBALL CTY. HOSP. 895
Cite as 289 Neb. 879
other cases and had at least once settled a claim rather than
asserting lack of notice as a defense. However, the evidence
did not contain any documentation conferring upon the admin-
istrator the duties set forth in § 13-905. Rather, the evidence
showed that the executive director of the political subdivision’s
board of directors was responsible for keeping the official
records. We stated:
Nor has the plaintiff presented any evidence that [the
administrator] was a de facto clerk, secretary, or offi-
cial recordkeeper for [the political subdivision]. There
is no evidence that [the administrator] was appointed
to an office named in § 13-905, or was acting in such
a capacity in a way calculated to induce people, with-
out inquiry, to suppose her to be the occupant of one of
those offices.49
Similarly, the evidence in the case before us does not estab-
lish that the CEO was a de facto clerk, secretary, or official
recordkeeper. Nor does the evidence show that the CEO or
Kimball County Hospital misrepresented to Brothers that the
CEO was the person designated by statute to receive claims.
Because the CEO did not have any of the duties set forth in
§ 13-905, the tort claim filed with him was not effective notice
under the plain language of the Act.
We recognize that the result is harsh, particularly where the
purpose of the written notice requirement has been satisfied.
The evidence showed that the governing body—the board of
trustees—was aware of and discussed Brothers’ claim shortly
after his treatment at Kimball County Hospital. However,
Brothers’ claim was not filed with the statutorily designated
person. If the Legislature wishes to allow for substantial com-
pliance in such a situation, it has the power to amend the stat-
ute. It is not our province to do so.
CONCLUSION
We determine that a county hospital is a legal entity and
political subdivision separate from the county itself and that,
under the facts alleged in this case, the County could have
49
Id. at 324, 664 N.W.2d at 467.
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896 289 NEBRASKA REPORTS
no liability as a matter of law. Thus, Brothers suffered no
prejudice when he was not allowed an opportunity to present
evidence regarding the County’s motion to dismiss. We further
conclude that Brothers failed to comply with the notice provi-
sions of the Act, because he did not file his tort claim with the
statutorily designated individual. We therefore affirm the deci-
sion of the Court of Appeals.
Affirmed.
Wright, J., not participating.
State of Nebraska, appellee, v.
Jonathon L. Armendariz, appellant.
___ N.W.2d ___
Filed January 16, 2015. No. S-13-998.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual alle-
gations which, if proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. However, if the motion alleges only conclu-
sions of fact or law, or the records and files in the case affirmatively show that
the movant is entitled to no relief, no evidentiary hearing is required.
3. Postconviction: Pleas: Effectiveness of Counsel. In a postconviction action
brought by a defendant convicted because of a guilty plea or a plea of no con-
test, a court will consider an allegation that the plea was the result of ineffective
assist­ance of counsel.
4. Postconviction: Effectiveness of Counsel: Appeal and Error. Although a
motion for postconviction relief cannot be used to secure review of issues which
were or could have been litigated on direct appeal, when a defendant was repre-
sented both at trial and on direct appeal by the same lawyer, the defendant’s first
opportunity to assert ineffective assistance of counsel is in a motion for postcon-
viction relief.
5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist­
ance of counsel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show
that counsel’s performance was deficient; that is, counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law. Next, the