ConAgra Foods v. Zimmerman ( 2014 )

Nebraska Advance Sheets
CONAGRA FOODS v. ZIMMERMAN 81
Cite as 288 Neb. 81
V. CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court in all respects.
Affirmed.
ConAgra Foods, Inc., appellant, v.
Ryan J. Zimmerman, appellee.
___ N.W.2d ___
Filed May 9, 2014. No. S-13-375.
1. Injunction: Equity: Appeal and Error. An action for injunction sounds
in equity. On appeal from an equity action, an appellate court tries factual
questions de novo on the record and, as to questions of both fact and law, is
obligated to reach a conclusion independent of the conclusion reached by the
trial court.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
3. Evidence. Determining the relevancy of evidence is a matter entrusted to the
discretion of the trial court.
4. Trial: Evidence: Appeal and Error. An erroneous exclusion of evidence is
reversible only if the complaining litigant was prejudiced by the exclusion of
such evidence.
5. Injunction: Equity. An injunction lies in equity.
6. Equity. Equity is not a rigid concept, and its principles are not applied in
a vacuum.
7. ____. Equity is determined on a case-by-case basis when justice and fairness
so require.
8. Injunction. An injunction is an extraordinary remedy, and it ordinarily should
not be granted unless the right is clear, the damage is irreparable, and the remedy
at law is inadequate to prevent a failure of justice.
9. Injunction: Trespass. An injunction against trespassing will be granted where
the nature and frequency of trespasses are such as to prevent or threaten the sub-
stantial enjoyment of the rights of possession and property in land.
10. Injunction: Proof. The party seeking an injunction must establish by a prepon-
derance of the evidence every controverted fact necessary to entitle him or her
to relief.
11. Criminal Law. As a general rule, the prosecution of criminal offenses is nor-
mally a complete and sufficient remedy at law.
12. Criminal Law: Injunction: Equity. Where acts complained of are in violation
of the criminal law, courts of equity will not, on that ground alone, interfere by
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82 288 NEBRASKA REPORTS
injunction to prevent their commission, as they will not exercise their power for
the purpose of enforcing criminal laws.
13. ____: ____: ____. A court of equity may properly afford injunctive relief where
there has been a continuing and flagrant course of violations of the law, even
though these acts may be subject to criminal prosecution.
14. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
15. Evidence: Proof. For evidence to be relevant, all that must be established is a
rational, probative connection, however slight, between the offered evidence and
a fact of consequence.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Reversed and remanded with directions.
Heidi A. Guttau-Fox and Christopher R. Hedican, of Baird
Holm, L.L.P., for appellant.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
McCormack, J.
NATURE OF CASE
ConAgra Foods, Inc. (ConAgra), appeals the district court’s
denial of injunctive relief. ConAgra argues that the violent
nature of Ryan J. Zimmerman’s alleged trespass warrants
injunctive relief enjoining Zimmerman from having any con-
tact with ConAgra and its employees and restraining him from
ConAgra property.
BACKGROUND
At approximately 5 a.m. on November 10, 2012, a white
male drove a vehicle onto ConAgra’s main campus in down-
town Omaha, Nebraska. The man fired a gun five times at
two window washers working on ConAgra property and then
drove away.
On November 13, 2012, police arrested Zimmerman for
the incident. The two window washers reviewed the photo-
graphs from television news reports and the Omaha World-
Herald newspaper and positively identified Zimmerman
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Cite as 288 Neb. 81
as the shooter. Zimmerman’s estranged wife is a manager
at ConAgra.
On November 15, 2012, ConAgra filed its complaint seeking
a temporary restraining order, a preliminary injunction, and a
1-year permanent injunction enjoining Zimmerman from hav-
ing any contact with ConAgra. ConAgra also served a “bar and
ban” letter upon Zimmerman.
The district court entered a temporary restraining order.
Zimmerman answered the complaint, and a hearing was held
on ConAgra’s request for permanent injunction.
At the hearing, ConAgra offered 21 exhibits. Exhibits 1
through 6 consisted of three petitions/affidavits for protection
orders filed by Zimmerman’s estranged wife and the three
protection orders granted by the district court. Exhibits 7 and
11 through 14 are printouts containing Zimmerman’s criminal
history which were obtained from “JUSTICE,” Nebraska’s
online trial court case management system. The exhibits also
show that Zimmerman had posted bond for the charges asso-
ciated with the alleged shooting. The district court sustained
Zimmerman’s relevancy objections on all of these exhibits.
Exhibit 8 is the “bar and ban” letter sent to Zimmerman
by ConAgra. Exhibits 17 and 18 are the affidavits of the win-
dow washers, identifying Zimmerman as the shooter. Exhibit
19 is the affidavit from ConAgra security, and exhibit 21
is the complaint filed in this action. Each of these exhibits
was admitted.
On April 1, 2013, the district court dissolved the tempo-
rary injunction and denied ConAgra’s request for a permanent
injunction. The district court relied on Cox v. Sheen1 for the
proposition that a single trespass does not give rise to injunc-
tive relief. ConAgra appealed, and we moved the case to
our docket.2
ASSIGNMENTS OF ERROR
ConAgra assigns that the district court erred in (1) sustain-
ing Zimmerman’s relevancy objections to exhibits 1 through 6
1
Cox v. Sheen, 82 Neb. 472, 118 N.W. 125 (1908).
2
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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and 11 through 14, (2) holding that Zimmerman’s trespass was
insufficient for injunctive relief, and (3) denying the perma-
nent injunction.
STANDARD OF REVIEW
[1] An action for injunction sounds in equity. On appeal
from an equity action, an appellate court tries factual questions
de novo on the record and, as to questions of both fact and law,
is obligated to reach a conclusion independent of the conclu-
sion reached by the trial court.3
[2-4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.4 Determining the relevancy of evidence is a matter
entrusted to the discretion of the trial court.5 An erroneous
exclusion of evidence is reversible only if the complaining liti-
gant was prejudiced by the exclusion of such evidence.6
ANALYSIS
The issue presented by this appeal is whether ConAgra met
its burden in establishing that Zimmerman is likely to trespass
again and that the existing remedies at law are inadequate
to remedy such a trespass. After reviewing the record, the
uncontroverted facts sufficiently demonstrate that Zimmerman
will again trespass in flagrant violation of criminal law upon
ConAgra’s property. Therefore, justice requires a 1-year per-
manent junction.
[5-7] An injunction lies in equity.7 Equity is not a rigid con-
cept, and its principles are not applied in a vacuum.8 Rather,
3
State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d
512 (2003).
4
State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).
5
Id.
6
Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008).
7
See Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d 268 (2006).
8
Id.
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equity is determined on a case-by-case basis when justice and
fairness so require.9
[8-10] An injunction is an extraordinary remedy, and it
ordinarily should not be granted unless the right is clear, the
damage is irreparable, and the remedy at law is inadequate to
prevent a failure of justice.10 An injunction against trespassing
will be granted where the nature and frequency of trespasses
are such as to prevent or threaten the substantial enjoyment
of the rights of possession and property in land.11 The party
seeking an injunction must establish by a preponderance of the
evidence every controverted fact necessary to entitle him or her
to relief.12
[11-13] As a general rule, the prosecution of criminal
offenses is normally a complete and sufficient remedy at law.13
We have stated that where acts complained of are in violation
of the criminal law, courts of equity will not, on that ground
alone, interfere by injunction to prevent their commission, as
they will not exercise their power for the purpose of enforc-
ing criminal laws.14 However, a court of equity may properly
afford injunctive relief where there has been a continuing and
flagrant course of violations of the law, even though these acts
may be subject to criminal prosecution.15 For instance, we have
upheld injunctive relief against a husband and wife who oper-
ated a private home school in continuing and flagrant violation
of the State Department of Education’s rules and regulations
and Nebraska statutes.16
In cases involving serious violence, other courts have
granted an injunction if there is a risk that the serious violent
9
Id.
10
See id.
11
See id.
12
Riha v. FirsTier Bank, 248 Neb. 785, 539 N.W.2d 632 (1995).
13
See City of New York v. Andrews, 186 Misc. 2d 533, 719 N.Y.S.2d 442
(2000).
14
See State, ex rel. Spillman, v. Heldt, 115 Neb. 435, 213 N.W. 578 (1927).
15
State ex rel. Douglas v. Wiener, 220 Neb. 502, 370 N.W.2d 720 (1985).
16
Id.
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act will be repeated again. For example, in Emma Goldman
Clinic v. Holman,17 injunctive relief was granted against a
protestor who had undertaken aggressive demonstrations for
more than a year outside of a clinic that performed abortions
and who made threatening comments in a local newspaper.
The court held that the plaintiffs lacked an adequate remedy
to prevent the protestor from harming the clinic and its staff.
The court thus placed restrictions on the protestor’s actions to
help prevent such harm. And in State ex rel. Dobbs v. Burche,18
injunctive relief was granted after a landlord had raped one
female tenant and had repeatedly harassed others. These cases,
along with our precedent, indicate that an injunction can be
granted, even when the criminal law is implicated, if the tres-
pass is likely to be repeated in flagrant violation of the crimi-
nal law.
[14,15] But before addressing whether Zimmerman is likely
to trespass again, we must determine whether the district court
abused its discretion in sustaining Zimmerman’s relevancy
objections to exhibits 1 through 6 and 11 through 14. Relevant
evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it
would be without the evidence.19 For evidence to be relevant,
all that must be established is a rational, probative connec-
tion, however slight, between the offered evidence and a fact
of consequence.20
We find the excluded exhibits to be relevant evidence.
Exhibits 1 through 6 and exhibit 11 demonstrate that
Zimmerman’s wife has had protection orders against him. The
evidence establishes that Zimmerman’s estranged wife works
at ConAgra and that Zimmerman has previously harassed
her. Therefore, the exhibits provide the relevant evidence
17
Emma Goldman Clinic v. Holman, No. 05-2097, 2006 WL 3436221 (Iowa
App. Nov. 30, 2006) (unpublished disposition listed in table of “Decisions
Without Published Opinions” at 728 N.W.2d 60 (Iowa App. 2006)).
18
State ex rel. Dobbs v. Burche, 729 N.W.2d 431 (Iowa 2007).
19
Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).
20
Id.
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of why Zimmerman may trespass again. Exhibit 12 is a
JUSTICE report which demonstrated that Zimmerman was out
on bond at the time of the hearing. Its relevance is obvi-
ous—if Zimmerman was held in jail for the shooting, he could
not possibly trespass while incarcerated. Exhibit 13, another
JUSTICE report, shows the charges Zimmerman faced from
this incident. And finally, exhibit 14 is a JUSTICE report
which shows that Zimmerman had a pending stalking charge
at the time of the hearing, for which he had pled not guilty.
Exhibits 13 and 14 provide a relevant connection between the
past actions of Zimmerman and the likelihood he will trespass
again, while also demonstrating his flagrant disregard for the
criminal law.
After reviewing all of the relevant exhibits, we find that
ConAgra established by a preponderance of the evidence
every controverted fact necessary to entitle it to injunctive
relief. The preponderance of the evidence established that
ConAgra has a clear right to exclude Zimmerman from its
private property, and Zimmerman provided no evidence to
the contrary. The record also established that the damage
could be irreparable should another similar trespass occur.
And finally, the preponderance of the evidence established
that the current remedies at law are inadequate to prevent a
failure of justice because, despite possible criminal sanctions,
all of the admitted evidence indicates that it is more likely
than not that the trespass will be repeated. It is uncontro-
verted that Zimmerman fired his gun on ConAgra property. It
is uncontroverted that his estranged wife works at ConAgra
and that she had previously requested and received protec-
tion orders against Zimmerman. The record demonstrates that
Zimmerman flagrantly violated at least one of his estranged
wife’s protection orders when he entered onto her work prem-
ises at ConAgra on November 10, 2012. After being arrested
for the shooting, Zimmerman was released on bail and was
thus capable of trespassing again.
This evidence supported ConAgra’s argument that
Zimmerman will again trespass on ConAgra property to
harass and possibly harm his estranged wife, which could
result in irreparable damage to ConAgra property and its
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employees. Through his deplorable actions, Zimmerman has
demonstrated that he is willing to flagrantly violate the crimi-
nal laws of this state in order to trespass upon ConAgra prop-
erty. Although Zimmerman’s prior criminal actions raise real
doubts on the efficacy of a permanent injunction preventing
Zimmerman from again trespassing onto ConAgra property,
we do not feel comfortable standing by idly when justice calls
for action. Therefore, we reverse the district court’s order and
remand the cause with directions to grant a 1-year perma-
nent injunction.
CONCLUSION
For the reasons discussed, we hold that the district court
erred in denying injunctive relief to ConAgra. We remand with
directions, consistent with this opinion, to enter a 1-year per-
manent injunction against Zimmerman.
R eversed and remanded with directions.
Miller-Lerman, J., not participating.
Cassel, J., dissenting.
ConAgra’s request for a 1‑year injunction was prompted
by a single event of trespass including criminal behavior. The
majority now permits ConAgra to judicially obtain a special,
extraordinary remedy denied to it by the Legislature. Further,
equity has long denied injunctive relief for single instances of
trespass or completed, past acts. And for over 100 years, this
court has held that equity will not enjoin actions constitut-
ing criminal offenses. The majority departs from this long‑­
established precedent without explaining a principled distinc-
tion between this case and the hundreds, if not thousands, of
instances annually involving assaultive or violent behavior. I
respectfully dissent.
The majority concludes that the uncontroverted facts suf-
ficiently demonstrate that Zimmerman will again trespass upon
ConAgra’s property. This conclusion overstates the record.
The record contains no evidence indicating that Zimmerman’s
trespass was anything more than a single incident of violence.
There is no evidence that Zimmerman had ever undertaken
similar acts in the past or threatened ConAgra with future harm.
While the record establishes that Zimmerman’s wife had made
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allegations of harassment in the past and that Zimmerman had
a pending stalking charge against him, such evidence provides
no basis on which to conclude that Zimmerman posed a threat
of future harm to ConAgra.
This court has consistently stated that when simple acts of
trespass are involved, equity generally will not act.1 Rather,
an injunction will be granted where the nature and frequency
of trespasses are such as to prevent or threaten the substantial
enjoyment of the rights of possession and property in land.2
In trespass cases, equity looks to the nature of the injury
inflicted, together with the fact of its constant repetition, or
continuation, rather than to the magnitude of the damage
inflicted, as the ground of affording relief.3 Thus, in Whipps
Land & Cattle Co. v. Level 3 Communications,4 this court
affirmed the denial of injunctive relief, because the record
provided no basis on which to conclude that future trespasses
might occur. In Whipps Land & Cattle Co., the plaintiff failed
to articulate a reason why similar trespasses would occur in
the future, but instead relied upon the absence of any reason
to believe they would not occur. In other words, much like the
instant case, the plaintiff was speculating on the prospect of
future harm. This was not sufficient, according to the Whipps
Land & Cattle Co. court, to warrant the extraordinary remedy
of injunctive relief.5
ConAgra is requesting this court to speculate that future
trespasses may occur merely because Zimmerman’s estranged
wife still works at ConAgra. But an injunction should be
granted in only the clearest of cases.6 Mere speculation that a
future trespass may occur is insufficient to meet this standard.
­
1
See, e.g., Lambert v. Holmberg, 271 Neb. 443, 712 N.W.2d 268 (2006);
Whipps Land & Cattle Co. v. Level 3 Communications, 265 Neb. 472, 658
N.W.2d 258 (2003); Thomas v. Weller, 204 Neb. 298, 281 N.W.2d 790
(1979).
2
See Lambert, supra note 1.
3
Id.
4
Whipps Land & Cattle Co., supra note 1.
5
Id.
6
See Lambert, supra note 1.
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Zimmerman’s behavior, though thoroughly deplorable, com-
prised only a single event, and ConAgra failed to prove that
the act will be repeated.
Additionally, this court has described the purpose of an
injunction as the restraint of actions which have not yet been
taken.7 Remedy by injunction is generally preventative, pro-
hibitory, or protective, and equity will not usually issue an
injunction when the act complained of has been committed
and the injury has been done.8 The purpose of an injunction is
not to afford a remedy for what is past but to prevent future
mischief.9 Rights already lost and wrongs already perpetrated
cannot be corrected by an injunction.10 Zimmerman’s trespass,
albeit violent, is a completed, past act. And the record con-
tains no evidence to support the majority’s conclusion that
future trespasses are likely. Thus, the majority contravenes our
well‑established precedent that an injunction is an inappropri-
ate remedy for a completed, past act.
Moreover, injunctive relief was not appropriate, because
ConAgra was effectively seeking to enjoin Zimmerman from
committing a future crime. The record shows that ConAgra
sent Zimmerman a “bar and ban” letter after the shooting,
informing him that he was no longer permitted to enter onto
its property. Thus, any subsequent entry by Zimmerman would
constitute a criminal trespass.11 It is well settled that equity,
as a general rule, has no criminal jurisdiction.12 Where acts
complained of are in violation of the criminal law, courts of
equity will not, on that ground alone, interfere by injunction
7
See Professional Firefighters Assn. v. City of Omaha, 282 Neb. 200, 803
N.W.2d 17 (2011).
8
Id.
9
Id.
10
Id.
11
See Neb. Rev. Stat. § 28‑521 (Cum. Supp. 2012).
12
See, Florida v. Seminole Tribe of Florida, 181 F.3d 1237 (11th Cir. 1999);
U.S. v. Santee Sioux Tribe of Nebraska, 135 F.3d 558 (8th Cir. 1998);
State ex rel. Meyer v. Weiner, 190 Neb. 30, 205 N.W.2d 649 (1973); State,
ex rel. Spillman, v. Heldt, 115 Neb. 435, 213 N.W. 578 (1927); State v.
Maltby, 108 Neb. 578, 188 N.W. 175 (1922).
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to prevent their commission, as they will not exercise their
power for the purpose of enforcing criminal laws.13 Since at
least 1911, this court has recognized that equity will not inter-
fere to punish crime.14
The majority circumvents these principles, claiming that
ConAgra has no adequate remedy at law. But the prosecution
of criminal offenses is normally a complete and sufficient
remedy at law.15 Thus, an injunction was not necessary to
prevent a failure of justice, because any subsequent trespass
would subject Zimmerman to criminal prosecution.
The majority fails to explain how this case differs from
hundreds, if not thousands, of assaultive crimes perpetrated
annually in Nebraska. I see no principled basis in the majority
opinion to distinguish this case from other cases. Undoubtedly,
this precedent will prompt employers of victims to routinely
seek injunctive relief merely for the sake of appearing to do
something. The majority’s rationale for opening up the flood-
gates to such cases is that it does not “feel comfortable stand-
ing by idly when justice calls for action.” Although aspirations
of justice are noble, courts apply law and equity. The major-
ity’s discomfort strikes me as a poor basis for departing from
the accumulated wisdom of over 100 years of precedent.
Ultimately, the majority permits ConAgra to obtain special
treatment from the courts where the Legislature has declined
to authorize it. I do not believe that ConAgra’s status as
a corporation or as a large and successful enterprise justi-
fies the special treatment afforded by the majority’s decision.
Injunctive relief is an extraordinary remedy.16 The Legislature
has provided injunctive relief for victims of domestic abuse17
or victims of harassment,18 but ConAgra’s status as a victim’s
13
See Heldt, supra note 12.
14
See State v. Chicago, B. & Q. R. Co., 88 Neb. 669, 130 N.W. 295 (1911).
15
See City of New York v. Andrews, 186 Misc. 2d 533, 719 N.Y.S.2d 442
(2000).
16
See Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
17
See Neb. Rev. Stat. § 42‑924 (Cum. Supp. 2012).
18
See Neb. Rev. Stat. § 28‑311.09 (Cum. Supp. 2012).
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employer clearly falls outside of the protections afforded by
these statutes. This court has repeatedly emphasized that it is
the Legislature’s function to declare the public policy of this
state.19 And the court long ago recognized that equity will not
enjoin the commission of a crime merely because the penalty
seems to be inadequate, since the relief in such case must come
from the Legislature.20 As the court said at that time, “If the
punishment provided is not sufficient, recourse should be had
to the [L]egislature, and not to the equity side of the courts.”21
It is the Legislature’s prerogative to determine whether the
extraordinary remedy of injunctive relief should be extended
in the way that ConAgra seeks. Instead of deferring to the
Legislature’s proper functioning, the majority’s decision pre-
empts the Legislature’s role.
I respectfully dissent.
Stephan, J., joins in this dissent.
19
See, e.g., In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830
N.W.2d 474 (2013); In re Interest of Kendra M. et al., 283 Neb. 1014, 814
N.W.2d 747 (2012); Bassinger v. Nebraska Heart Hosp., 282 Neb. 835,
806 N.W.2d 395 (2011); City of Falls City v. Nebraska Mun. Power Pool,
281 Neb. 230, 795 N.W.2d 256 (2011); Bamford v. Bamford, Inc., 279
Neb. 259, 777 N.W.2d 573 (2010); R & D Properties v. Altech Constr. Co.,
279 Neb. 74, 776 N.W.2d 493 (2009); Wilke v. Woodhouse Ford, 278 Neb.
800, 774 N.W.2d 370 (2009); Davis v. Davis, 275 Neb. 944, 750 N.W.2d
696 (2008).
20
See Maltby, supra note 12.
21
Id. at 584, 188 N.W. at 178.
Charles Rodgers, appellant, v.
Nebraska State Fair, appellee.
___ N.W.2d ___
Filed May 9, 2014. No. S-13-651.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,