Credit Mgmt. Servs. v. Jefferson ( 2015 )

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same—it is the arrangement of those questions into the ele-
ments of negligence that has changed.
Peterson’s appeal was dismissed for failure to state a claim,
with the district court’s concluding that Kings Gate owed no
duty to Peterson. At this stage in the proceedings, we conclude
that Peterson has stated a claim for relief that is plausible on
its face and therefore survives a motion to dismiss. Kings Gate
did owe a duty under § 40 of the Restatement; it remains for
the finder of fact to determine whether Kings Gate breached
that duty. As such, we reverse the decision of the district court
granting Kings Gate’s motion to dismiss, and remand the cause
for further proceedings.
CONCLUSION
The decision of the district court is reversed, and the cause
is remanded for further proceedings.
R eversed and remanded for
further proceedings.
Wright, J., not participating.
Credit Management Services, Inc., appellant,
v. L orinda Jefferson, appellee.
___ N.W.2d ___
Filed April 10, 2015. No. S-14-545.
1. Judgments: Costs: Appeal and Error. The standard of review for an award of
costs is whether an abuse of discretion occurred.
2. Judgments: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court must resolve independently of the trial court.
4. ____: ____. Absent a statutory indication to the contrary, an appellate court gives
words in a statute their ordinary meaning.
5. ____: ____. An appellate court does not consider a statute’s clauses and phrases
as detached and isolated expressions. Instead, the whole and every part of the
statute must be considered in fixing the meaning of any of its parts.
6. Statutes. Statutes which change or take away a common-law right must be
strictly construed.
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CREDIT MGMT. SERVS. v. JEFFERSON 665
Cite as 290 Neb. 664
7. ____. Any statutory construction restricting or abolishing common-law rights
should not be adopted, unless the plain words of the statute compel such result.
Appeal from the District Court for Douglas County, Duane
C. Dougherty, Judge, on appeal thereto from the County Court
for Douglas County, Thomas K. Harmon, Judge. Judgment of
District Court reversed, and cause remanded with directions.
John M. Guthery, of Perry, Guthery, Haase & Gessford, P.C.,
L.L.O., for appellant.
No appearance for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
Under certain circumstances, Neb. Rev. Stat. § 25-1708
(Cum. Supp. 2014) provides for the award of costs to plaintiffs
in actions for the recovery of money. Pursuant to this statute,
Credit Management Services, Inc. (CMS), filed a motion for
costs in its action for the recovery of money against Lorinda
Jefferson. She had voluntarily paid CMS’ claim after the action
was filed but before a judgment was entered.
The county court interpreted § 25-1708 as precluding the
award of costs to a plaintiff where he or she received a vol-
untary payment from the defendant after the action was filed
but before a judgment was entered. The county court over-
ruled CMS’ motion for costs, and on appeal, the district court
affirmed the county court’s determination that CMS was not
entitled to costs. We conclude that CMS was entitled to costs.
Therefore, we reverse the order of the district court and remand
the cause with directions.
SCOPE OF REVIEW
[1,2] The standard of review for an award of costs is whether
an abuse of discretion occurred. White v. Kohout, 286 Neb.
700, 839 N.W.2d 252 (2013). A judicial abuse of discretion
exists when the reasons or rulings of a trial judge are clearly
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untenable, unfairly depriving a litigant of a substantial right
and denying just results in matters submitted for disposition.
Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d
703 (2013).
[3] Statutory interpretation is a question of law, which we
must resolve independently of the trial court. In re Interest of
Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
FACTS
Jefferson owed $277.50 to a cash advance company, which
assigned the debt to CMS. After unsuccessfully making a
demand for payment, CMS filed a complaint for the recov-
ery of money in county court. Prior to the entry of judgment,
Jefferson voluntarily paid CMS the amount sought in the
complaint.
On August 12, 2013, CMS filed a motion for costs pursuant
to § 25-1708. CMS sought a judgment against Jefferson for the
costs of the action, which totaled $56.06.
The county court overruled CMS’ motion for costs and dis-
missed CMS’ complaint with prejudice. The court determined
that § 25-1708 excluded an award of costs “when there have
been voluntary payments made after the action is filed ‘but
before judgment.’” (Emphasis in original.)
CMS appealed the county court’s judgment to the district
court. It assigned, consolidated and restated, that the county
court erred in interpreting § 25-1708 to preclude the award of
costs to CMS. On May 22, 2014, the district court affirmed the
judgment of the county court.
CMS timely appeals. Pursuant to our statutory authority to
regulate the dockets of the appellate courts of this state, we
moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
ASSIGNMENT OF ERROR
CMS assigns, consolidated and restated, that the district
court erred in interpreting § 25-1708 to preclude the award of
costs to CMS where Jefferson voluntarily paid CMS’ claim
after the action was filed but before a judgment was entered.
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ANALYSIS
The question presented is whether a plaintiff in an action
for the recovery of money is entitled to costs where he or
she received a voluntary payment from the defendant after
the action was filed but before a judgment was entered.
To answer this question, we must interpret the language of
§ 25-1708, which governs the award of costs to plaintiffs in
such actions.
Section 25-1708 is an embodiment of the common-law rule
that “[c]osts as a general rule are given to the prevailing party.”
See Keller v. State, 184 Neb. 853, 856, 172 N.W.2d 782, 785
(1969). Until 2009, § 25-1708 did not provide for any excep-
tions to this general rule. See § 25-1708 (Reissue 2008). It
stated in its entirety:
Where it is not otherwise provided by this and other
statutes, costs shall be allowed of course to the plaintiff,
upon a judgment in his favor, in actions for the recovery
of money only, or for the recovery of specific real or per-
sonal property.
See id.
In 2009, the Legislature amended § 25-1708. See 2009 Neb.
Laws, L.B. 35, § 11. In its current form, § 25-1708 states:
Where it is not otherwise provided by this and other
statutes, costs shall be allowed of course to the plaintiff,
except as waived or released in writing by the plain-
tiff, upon a voluntary payment to the plaintiff after the
action is filed but before judgment, or upon a judgment
in favor of the plaintiff, in actions for the recovery of
money only or for the recovery of specific real or per-
sonal property.
[4-7] The instant appeal presents our first opportunity to
interpret § 25-1708 since it was amended. In doing so, we
apply basic principles of statutory interpretation. Absent a
statutory indication to the contrary, we give words in a stat-
ute their ordinary meaning. Coffey v. Planet Group, 287 Neb.
834, 845 N.W.2d 255 (2014). “We do not consider a statute’s
clauses and phrases ‘“‘as detached and isolated expressions.’”’
Instead, ‘“‘the whole and every part of the statute must be
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c­ onsidered in fixing the meaning of any of its parts.’”’” Fisher
v. PayFlex Systems USA, 285 Neb. 808, 817-18, 829 N.W.2d
703, 712 (2013). “[S]tatutes which change or take away a
common-law right must be strictly construed.” Spear T Ranch
v. Knaub, 269 Neb. 177, 195, 691 N.W.2d 116, 133 (2005).
Any statutory construction restricting or abolishing common-
law rights should not be adopted, unless the plain words of the
statute compel such result. Id.
CMS argues that under § 25-1708, it is entitled to costs,
because Jefferson, the defendant, voluntarily paid CMS’ claim
after the action was filed but before there was a judgment.
We agree.
A plain reading of § 25-1708 establishes that in actions
for the recovery of money, a plaintiff is entitled to costs
(1) where he or she received a voluntary payment from the
defendant after the action was filed but before judgment or
(2) where there was a judgment in favor of the plaintiff. In
both of these scenarios, the plaintiff has recovered from the
defendant and can be considered the prevailing party. In this
way, § 25-1708 remains consistent with the common-law rule
regarding costs, of which the statute is an embodiment. See
Keller v. State, supra.
The fact that § 25-1708 includes the word “except” indicates
that there is an exception to the statute. But this exception is
limited to a plaintiff’s waiver or release of costs in writing.
The only time “except” is mentioned in § 25-1708 is as part
of the phrase “except as waived or released in writing by the
plaintiff.” This phrase is offset from the surrounding phrases
by commas, and it is not followed by the conjunction “and” or
“or.” It constitutes a complete phrase that must be read inde-
pendently of the phrases that follow it.
We specifically reject the county and district courts’ inter-
pretation that in addition to the exception for the waiver or
release of costs in writing, § 25-1708 provides for an excep-
tion where the defendant voluntarily paid the plaintiff’s claim
after the action was filed but before a judgment was entered.
Such an interpretation would restrict the common-law right
to costs where the plain language of the statute does not
so compel.
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The grammatical structure of § 25-1708 is such that if
there were an exception that applied in the case of a volun-
tary payment, there would also be an exception that applied
where there was a judgment in the plaintiff’s favor. The exact
language of the statute is as follows: “upon a voluntary pay-
ment to the plaintiff after the action is filed but before judg-
ment, or upon a judgment in favor of the plaintiff.” (Emphasis
supplied.) The conjunction “or” is used to indicate “the syn-
onymous, equivalent, or substitutive character of two words
or phrases.” See Webster’s Third New International Dictionary
of the English Language, Unabridged 1585 (1993). The use of
the word “or” in § 25-1708 thus signals that a plaintiff who
has not waived or released costs in writing is in the identical
position, for purposes of recovering costs, whether he or she
obtained a judgment in his or her favor or simply received
a voluntary payment after the action was filed but before a
judgment was entered. Because these two scenarios must be
treated as equivalent, the interpretation adopted by the county
and district courts, which would deny costs to all plaintiffs
who received voluntary payments prior to a judgment, would
also deny costs to all plaintiffs who obtained judgments in
their favor.
But to deny costs to all plaintiffs who obtained judg-
ments in their favor would be to deprive those plaintiffs of
the common-law right of a prevailing party to recover costs.
See Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969).
Any statutory construction restricting or abolishing common-
law rights should not be adopted, unless the plain words of
the statute compel such result. Spear T Ranch v. Knaub, 269
Neb. 177, 691 N.W.2d 116 (2005). In the case of § 25-1708,
the plain language does not compel that all plaintiffs who
obtained judgments in their favor should be deprived of costs.
The plain language compels only that such plaintiffs should
be denied costs where they have waived or released costs
in writing.
In summary, a plain reading of § 25-1708 establishes that
the scope of the exception to § 25-1708 is limited to a plain-
tiff’s waiver or release of costs in writing. This plain reading
is reaffirmed by the fact that the broader exception adopted
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by the county and district courts would restrict the common-
law right to costs where the plain language does not so com-
pel. Accordingly, we hold that § 25-1708 has but one excep-
tion and that the exception is limited to a plaintiff’s waiver or
release of costs in writing. The Legislature has provided that
in an action for the recovery of money, if an individual makes
a voluntary payment prior to judgment but does not obtain a
written waiver or release of costs from the plaintiff, the plain-
tiff is entitled to costs under § 25-1708. The wisdom of this
policy is for the Legislature, and our role is to determine the
plain meaning of the statute.
In the instant case, Jefferson voluntarily paid CMS’ claim
after the action was filed but prior to the entry of judgment.
CMS did not waive or release costs in writing. As such,
under § 25-1708, CMS was entitled to its costs in the action.
By affirming the order of the county court that overruled
CMS’ motion for costs, the district court deprived CMS of
its statutory right to costs and thereby abused its discretion.
We therefore reverse the order of the district court, and we
remand the cause with directions for the district court to
direct the county court to enter an order awarding CMS its
costs in this action.
CONCLUSION
For the foregoing reasons, we reverse the order of the dis-
trict court that affirmed the order of the county court which
overruled CMS’ motion for costs. We remand the cause with
directions for the district court to direct the county court to
enter an order awarding CMS its costs in this action.
R eversed and remanded with directions.