Florence Lake Investments v. Berg , 312 Neb. 183 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/19/2022 08:07 AM CDT
- 183 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183Florence Lake Investments, LLC, appellant,
v. Jason Berg and Mary Berg, appellees,
David M. Kroeger, intervenor-appellee,
and Merrill Lynch, Pierce, Fenner &
Smith, Incorporated, and Zoetis,
Inc., garnishees-appellees.
___ N.W.2d ___
Filed August 12, 2022. No. S-21-350.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Garnishment: Appeal and Error. Garnishment is a legal proceeding.
To the extent factual issues are involved, the findings of the fact finder
will not be set aside on appeal unless clearly wrong; however, to the
extent issues of law are presented, an appellate court has an obligation to
reach independent conclusions irrespective of the determinations made
by the court below.
4. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject
matter jurisdiction be created by waiver, estoppel, consent, or conduct
of the parties.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
6. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
7. Judgments: Final Orders: Words and Phrases. A judgment is the
final determination of the rights of the parties in an action.
- 184 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 1838. Judgments: Words and Phrases. Every direction of the court made or
entered in writing and not included in a judgment is an order.
9. Judgments: Final Orders: Statutes: Appeal and Error. While all
judgments not incorrectly designated as such are appealable, an order
may be appealed only if a statute expressly makes the order immedi-
ately appealable or the order falls within the statutory definition of a
final order.
10. Final Orders: Appeal and Error. To be a final order subject to appel-
late review, the lower court’s order must (1) affect a substantial right
and determine the action and prevent a judgment, (2) affect a substantial
right and be made during a special proceeding, (3) affect a substantial
right and be made on summary application in an action after a judgment
is entered, or (4) deny a motion for summary judgment which was based
on the assertion of sovereign immunity or the immunity of a govern-
ment official.
11. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) include those legal rights that a party is entitled to enforce
or defend.
12. Judgments: Final Orders: Garnishment: Liability. An order over-
ruling an application to determine garnishee liability in a postjudgment
garnishment proceeding is an order affecting a substantial right made on
a summary application in an action after a judgment is entered.
13. Judgments. A summary application in an action after judgment is an
order ruling on a postjudgment motion in an action.
14. Judgments: Final Orders: Garnishment: Liability. A court’s order
overruling an application to determine garnishee liability affects a gar-
nishor’s substantial rights, because it undermines a garnishor’s ability to
satisfy its judgment against a judgment debtor.
15. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
16. Statutes: Courts. A court must reconcile different provisions of the
statute so they are consistent, harmonious, and sensible.
17. Statutes: Intent. In construing a statute, the court must look at the
statutory objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose.
18. Judgments: Debtors and Creditors: Garnishment: Property.
Generally, executions and garnishments in aid of executions are mecha-
nisms by which a judgment creditor can seek judicial enforcement of
- 185 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183a monetary judgment—usually by seizing and selling the judgment
debtor’s property.
19. Final Orders: Garnishment: Property. Neb. Rev. Stat. § 25-1315(Reissue 2016) is inapplicable to a final order regarding a postjudgment
garnishment in aid of execution directed to specific property where all
rights of all parties claiming an interest in the specific property gar-
nished have been adjudicated.
20. Garnishment: Liability: Service of Process: Time. A garnishee’s
liability is to be determined as of the time the garnishment summons
is served.
21. Judgments: Debtors and Creditors: Garnishment. The claim of a
judgment creditor garnishor against a garnishee can rise no higher than
the claim of the garnishor’s judgment debtor against the garnishee.
22. Judgments: Debtors and Creditors: Garnishment: Subrogation. A
garnishor is subrogated to the rights of the judgment debtor and can
recover only by the same right and to the same extent that the judgment
debtor might recover from the garnishee.
23. Garnishment: Liability: Service of Process: Time. In determining
the liability of a garnishee to a garnishor, the test is whether, as of the
time the summons in garnishment was served, the facts would support a
recovery by the garnishor’s judgment debtor against the garnishee.
24. Federal Acts: Pensions. The Employee Retirement Income Security Act
of 1974 provides a uniform and systematic framework for regulation of
employee benefit plans to ensure that the employee’s accrued benefits
are actually available for retirement purposes.
25. Federal Acts: Pensions: Debtors and Creditors. The Employee
Retirement Income Security Act of 1974 utilizes an anti-alienation stat-
ute to bar creditors from collecting undistributed funds in an employee
benefit plan.
26. Federal Acts: Pensions: Garnishment. The restrictions of the Employee
Retirement Income Security Act of 1974 on assignment or alienation of
pension benefits apply to garnishment.
27. Constitutional Law: Statutes. Federal preemption arises from the
Supremacy Clause of the U.S. Constitution and is the concept that state
laws that conflict with federal law are invalid.
28. Federal Acts: Pensions: Garnishment: Statutes. The anti-alienation
statute of the Employee Retirement Income Security Act of 1974 pre-
empts conflicting state garnishment laws.
29. Federal Acts: Pensions: Garnishment: Liability. The Employee
Retirement Income Security Act of 1974 does not preempt a garnishee,
acting as a plan administrator, from being found liable under Neb. Rev.
Stat. § 25-1030.02 (Reissue 2016).
- 186 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 18330. Debtors and Creditors: Garnishment. It is an invariable rule that
under no circumstances shall the garnishee, by operation of the proceed-
ings against him or her, be placed in a worse condition than the gar-
nishee would be in if the judgment debtor’s claim against the garnishee
were enforced by the judgment debtor himself or herself.
31. Judgments: Appeal and Error. An appellate court may affirm a lower
court’s ruling that reaches the correct result, albeit based on differ-
ent reasoning.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
John F. Zimmer V and Andre R. Barry, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellant.
Kenneth M. Wentz III and Caitlin J. Ellis, of Jackson Lewis,
P.C., for garnishee-appellee Zoetis, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ., and Derr, District Judge.
Cassel, J.
I. INTRODUCTION
A garnishor appeals from an order overruling its application
to determine garnishee liability against a plan administrator
whose interrogatory answers failed to disclose a judgment debt-
or’s 401K account. The central issue is whether the Employee
Retirement Income Security Act of 1974 (ERISA) 1—particu-
larly, ERISA’s anti-alienation statute 2—shields the administra-
tor from state garnishment law liability. Because we conclude
that it does under the circumstances here, we affirm.
II. BACKGROUND
Florence Lake Investments, LLC (Florence), obtained a
judgment against Jason Berg (Berg) and his wife, Mary Berg
1
29 U.S.C. § 1001 et seq. (2018 & Supp. I 2019). See, also, Pub. L.
No. 117-58, § 80602, 135 Stat. 1339 (amending §§ 1021(f)(2)(D) and
1083(h)(2)(C)(iv)).
2
See § 1056(d)(1).
- 187 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183(Mary). The judgment totaled over $4 million with postjudg-
ment interest continuing to accrue.
Florence’s collection efforts employed numerous postjudg-
ment proceedings for garnishment or execution. We summarize
only those events, parties, and filings pertinent to the instant
appeal. Many are pertinent only to the discussion of our juris-
diction. We address the merits only as to a single postjudgment
garnishment.
1. Florence’s Collection Proceedings
In attempting to collect the judgment against property that
was not subject to Berg’s bankruptcy proceeding, Florence
utilized two methods: (1) postjudgment garnishments of Berg’s
wages and financial accounts and (2) executions against Berg
and Mary’s personal property. These efforts occurred more or
less contemporaneously.
Although the timing of the answers to garnishment interrog-
atories was pertinent to issues before the district court, no error
is assigned regarding the court’s resolution of timing issues.
Thus, we omit unnecessary dates.
(a) Garnishments
Florence sought to garnish Berg’s wages and financial
accounts. Florence’s primary target was Berg’s 401K account,
which totaled over $1 million.
Florence first served Merrill Lynch, Pierce, Fenner & Smith,
Incorporated (Merrill Lynch), with garnishment interrogato-
ries, believing that it administered the 401K account. Merrill
Lynch answered the garnishment interrogatories against it by
disclosing that the 401K account was exclusively managed by
Zoetis, Inc. (Zoetis), as plan administrator. The disposition of
the garnishment against Merrill Lynch was not appealed.
After receiving Merrill Lynch’s answers, Florence served
garnishment interrogatories on “[Zoetis] as 401[K] Plan
Administrator.” The interrogatories required Zoetis to dis-
close wages owed to a judgment debtor, if any, and “prop-
erty belonging to the judgment debtor, or credits or monies
- 188 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183owed to the judgment debtor, whether due or not, other than
[wages].” Additionally, the summons attached to the inter-
rogatories stated in part, “You [Zoetis] are obligated to hold
the property and credits of every description of [Berg] now
in your possession or under your control until further order of
this court . . . . You are required by law to answer the attached
Interrogatories . . . . Penalties may be imposed in the event of
willful falsification.”
In Zoetis’ answers to the garnishment interrogatories, it
stated that it owed Berg wages as his employer, but that it did
not possess any property belonging to him or owe him any
other credits or monies. In other words, Zoetis did not disclose
its role regarding Berg’s 401K account.
Unsatisfied with Zoetis’ answer regarding the 401K account,
Florence filed an application to determine garnishee liability
against Zoetis under Neb. Rev. Stat. § 25-1030 (Reissue 2016).
Florence alleged that “[Zoetis’] response identifie[d] wages
owed to [Berg] but [did] not identify any other property or
address the existence of any account funds of [Berg] under
[Zoetis’] control as Plan Administrator.” At the corresponding
hearing, Zoetis explained it did not believe it needed to dis-
close Berg’s 401K account, because the account was protected
from garnishment under ERISA.
After an extended period of study, the court issued a writ-
ten order, “overrul[ing]” Florence’s application to determine
garnishee liability against Zoetis. The court found that even
though Zoetis had failed to strictly comply with the garnish-
ment statutes by not disclosing Berg’s 401K account, it was
not liable because the account could not be subject to garnish-
ment. Noting the parties’ agreement that ERISA governed the
401K account, the court cited federal statutes and case law
prohibiting the assignment or alienation of accounts governed
by ERISA. 3
3
See, id.; Guidry v. Sheet Metal Workers Pension Fund, 493 U.S. 365, 110
S. Ct. 680, 107 L. Ed. 2d 782 (1990).
- 189 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183(b) Executions
While Florence’s application to determine garnishee liability
was pending before the court, Florence sought, and the court
issued, writs of execution against Berg and Mary’s personal
property. Berg moved the court to exempt “[one-half] interest
in 10 head of cattle” from the executions.
Following a hearing on the matter, the court found that
Berg’s cattle were not exempt from the executions and ordered
them to be sold. After the sale, David M. Kroeger sought to
intervene in the execution proceedings, demanding one-half of
the sale proceeds because he had owned a one-half interest in
the cattle.
The court granted Kroeger’s “Complaint to Intervene” and
ordered the matter be set for a bench trial once discovery was
complete. The record does not show any disposition of the
writs of execution.
2. Appeal
Florence filed a timely appeal from the court’s order
regarding Zoetis’ garnishee liability. However, at the time of
Florence’s appeal, its execution against the cattle remained
pending before the district court.
Consequently, the Nebraska Court of Appeals initially dis-
missed the appeal for lack of jurisdiction, citing Neb. Rev.
Stat. § 25-1315 (Reissue 2016) in its minute entry. However,
Florence filed a motion for rehearing, which the Court of
Appeals sustained and ordered the parties to brief “the juris-
dictional issue presented.” Before the Court of Appeals again
addressed the appeal, we moved it to our docket. 4
III. ASSIGNMENTS OF ERROR
Florence assigns that the district court erred in (1) denying
its application against Zoetis, (2) failing to find that Zoetis
was in control of Berg’s 401K account at the time of garnish-
ment, and (3) excusing Zoetis from disclosure and liability
4
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
- 190 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183based on an exception that is personal to Berg and was not
properly raised.
IV. STANDARD OF REVIEW
[1,2] A jurisdictional question that does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 5 When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions. 6
[3] Garnishment is a legal proceeding. To the extent factual
issues are involved, the findings of the fact finder will not be
set aside on appeal unless clearly wrong; however, to the extent
issues of law are presented, an appellate court has an obligation
to reach independent conclusions irrespective of the determina-
tions made by the court below. 7
V. ANALYSIS
1. Jurisdiction
[4,5] Florence and Zoetis agree that we have jurisdiction of
this appeal. But parties cannot confer subject matter jurisdic-
tion upon a judicial tribunal by either acquiescence or consent,
nor may subject matter jurisdiction be created by waiver,
estoppel, consent, or conduct of the parties. 8 Thus, the parties’
agreement is not dispositive. For that reason, we recall a famil-
iar proposition: Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it. 9
To perform that duty, we first recite basic principles of appel-
late jurisdiction, judgments, and final orders. Then, we classify
an order determining garnishee liability in a postjudgment
5
In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021).
6
Id.7
Myers v. Christensen, 278 Neb. 989, 776 N.W.2d 201 (2009).
8
Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).
9
Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).
- 191 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183garnishment. Last, we address the only question potentially
affecting jurisdiction here: whether the multiple postjudgment
garnishments and executions implicate § 25-1315.
(a) Final Order or Judgment
[6-9] For an appellate court to acquire jurisdiction of an
appeal, the party must be appealing from a final order or a
judgment. 10 A judgment is the final determination of the rights
of the parties in an action. 11 Every direction of the court made
or entered in writing and not included in a judgment is an
order. 12 By comparing these definitions, one can easily recog-
nize that judgments and orders are mutually exclusive. While
all judgments not incorrectly designated as such are appealable,
an order may be appealed only if a statute expressly makes
the order immediately appealable or the order falls within the
statutory definition of a final order. 13
[10,11] Under our final order statute, 14 to be a final order
subject to appellate review, the lower court’s order must (1)
affect a substantial right and determine the action and prevent
a judgment, (2) affect a substantial right and be made dur-
ing a special proceeding, (3) affect a substantial right and be
made on summary application in an action after a judgment is
entered, or (4) deny a motion for summary judgment which
was based on the assertion of sovereign immunity or the
immunity of a government official. 15 Substantial rights under
§ 25-1902 include those legal rights that a party is entitled to
enforce or defend. 16
10
Id.
11
Id. See, also, Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2020).
12
Cinatl v. Prososki, supra note 9. See, also, Neb. Rev. Stat. § 25-914(Reissue 2016).
13
Id.14
See Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020).
15
See Cinatl v. Prososki, supra note 9.
16
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906(2016).
- 192 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183(b) Postjudgment Garnishment Orders
[12] An order overruling an application to determine gar-
nishee liability in a postjudgment garnishment proceeding is an
order affecting a substantial right made on a summary applica-
tion in an action after a judgment is entered. 17 Two concepts
underlie this proposition.
[13] First, we have stated that an order on “‘“summary
application in an action after judgment”’” is an order ruling on
a postjudgment motion in an action. 18 Clearly, an application
for determination of garnishee liability regarding a postjudg-
ment garnishment meets that definition.
[14] Second, a court’s order overruling an application to
determine garnishee liability affects a garnishor’s substantial
rights, because it undermines a garnishor’s ability to satisfy its
judgment against a judgment debtor. 19 Accordingly, Florence
appeals from a final order.
(c) § 25-1315
[15-17] The question then becomes whether the final order
here regarding Florence’s postjudgment garnishment directed
to Zoetis implicates § 25-1315(1). When construing a statute, a
court must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense. 20 A
court must reconcile different provisions of the statute so they
are consistent, harmonious, and sensible. 21 And in construing
17
See, Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016); Cattle
Nat. Bank & Trust Co. v. Watson, supra note 16. See, also, Gem City Bone
& Joint v. Meister, 306 Neb. 710, 947 N.W.2d 302 (2020).
18
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 683, 782 N.W.2d
848, 867 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012).
19
See Neb. Rev. Stat. §§ 25-1026 and 25-1056 (Reissue 2016). See, also,
Cattle Nat. Bank & Trust Co. v. Watson, supra note 16.
20
Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).
21
Id.- 193 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183a statute, the court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to
be served, and then place on the statute a reasonable construc-
tion which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose. 22
Section 25-1315(1) provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to one
or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason
for delay and upon an express direction for the entry of
judgment. In the absence of such determination and direc-
tion, any order or other form of decision, however desig-
nated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision
at any time before the entry of judgment adjudicating all
the claims and the rights and liabilities of all the parties.
(Emphasis supplied.)
This court has found that the term “final judgment” as used
in § 25-1315(1) is the functional equivalent of a “final order”
within the meaning of § 25-1902. 23 Perhaps this makes sense
regarding so-called type 1 24 and type 2 25 final orders.
But it makes no sense regarding a type 3 final order, which is
“made on summary application in an action after a judgment is
entered,” 26 because, by its plain language, § 25-1315(1) applies
22
Id.
23
Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
24
See § 25-1902(1)(a) (order which “in effect determines the action and
prevents a judgment”).
25
See § 25-1902(1)(b) (order “made during a special proceeding”).
26
See § 25-1902(1)(c).
- 194 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183“before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties.” In a postjudgment
garnishment, such as the one at issue here, a judgment adjudi-
cating all the claims and the rights and liabilities of all the par-
ties has already occurred. Here, that occurred when Florence
obtained its monetary judgment against Berg and Mary.
Prior to the enactment of § 25-1315, an order that effected
a dismissal with respect to one of multiple parties was a final,
appealable order, and the complete dismissal with prejudice of
one of multiple causes of action was a final, appealable order,
but an order dismissing one of multiple theories of recovery,
all of which arose from the same set of operative facts, was
not a final order for appellate purposes. 27 Section 25-1315 was
an evident attempt by the Legislature to simplify the issue and
clarify many of the questions regarding final orders when there
are multiple parties and claims. 28 In other words, § 25-1315(1)
was intended to prevent interlocutory appeals, not make them
easier. 29 It attempts to strike a balance between the undesir-
ability of piecemeal appeals and the potential need for mak-
ing review available at a time that best serves the needs of
the parties. 30
[18] But the rationale for applying § 25-1315 breaks down
once a final judgment has been entered between the parties
and when thereafter a judgment creditor is engaged only in the
execution of its judgment against specific property. Generally,
executions and garnishments in aid of executions are mecha-
nisms by which a judgment creditor can seek judicial enforce-
ment of a monetary judgment—usually by seizing and selling
the judgment debtor’s property. 31 Such proceedings cannot
27
Cerny v. Todco Barricade Co., supra note 23.
28
Id.
29
Id.
30
Id.
31
See Black’s Law Dictionary 714 (11th ed. 2019) (defining “execution”).
See, also, Neb. Rev. Stat. § 25-1501.01 (Reissue 2016); § 25-1056.
- 195 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183occur prior to a judgment being entered and can continue until
the judgment is satisfied. 32
A court’s final order in an execution or a garnishment in
aid of execution may determine the rights and liabilities of
parties regarding specific property of the judgment debtor. 33
For instance, a court may find that a garnishee need not hold
property of the judgment debtor, because it is not subject to
garnishment. 34 Additionally, a court may find that one credi-
tor has superior rights over another creditor in specific prop-
erty of the judgment debtor. 35 But an order adjudicating the
rights of the judgment creditor, the judgment debtor, and any
third party claiming an interest in the specific property levied
upon by a particular writ of execution or garnished by a par-
ticular postjudgment garnishment summons cannot reasonably
be expected to be “subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties” with respect to entirely sepa-
rate property. 36
Here, only Florence, Zoetis, and Berg have any interest in
the garnishment summons directed to Zoetis as plan adminis-
trator of Berg’s 401K account. The writs of execution directed
to entirely separate and distinct property have no relationship
to this postjudgment garnishment.
Holding otherwise would allow a court to modify such a
final order until all other execution or postjudgment garnish-
ment proceedings against entirely separate property were con-
cluded. Perverse incentives would result, because garnishees
32
See, Cattle Nat. Bank & Trust Co. v. Watson, supra note 16; §§ 25-1301,
25-1056, and 25-1501.01.
33
See, e.g., Myers v. Christensen, supra note 7; Spaghetti Ltd. Partnership
v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002), disapproved on other
grounds, ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).
34
See Myers v. Christensen, supra note 7.
35
Id.36
See § 25-1315(1).
- 196 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183and judgment creditors would fear potential liability for years
after dispositive orders on garnished property. Garnishees
would be reluctant to disburse exempted property to judgment
debtors. Similarly, judgment creditors would be reluctant to
sell garnished property to satisfy their judgments. This would
be counterintuitive and preclude appellate review “at a time
that best serves the needs of the parties.” 37
[19] Therefore, we hold that § 25-1315 is inapplicable to
a final order regarding a postjudgment garnishment in aid of
execution directed to specific property where all rights of all
parties claiming an interest in the specific property garnished
have been adjudicated. Because that is the situation here, we
have jurisdiction of this appeal.
2. Merits
Having found that we have jurisdiction, we turn to the
merits. Florence constructs an overarching argument based
upon its three assignments of error: The court erred in find-
ing that Zoetis was not liable for the value of the funds in the
401K account.
Florence argues that Zoetis should have been liable for the
value of the funds in the 401K account regardless of ERISA’s
effect on the account, because, it emphasizes, the garnish-
ment statute governing garnishee liability does not require
distribution from an account governed by ERISA. 38 Instead, it
argues, it should receive a judgment directly against Zoetis—
which would be required to pay the judgment with its own
funds. Florence argues that, in effect, Zoetis was improperly
allowed to use an exemption personal to Berg to absolve itself
from liability.
Zoetis does not substantially challenge that it failed to
comply with our garnishment statutes by not disclosing Berg’s
37
See Cerny v. Todco Barricade Co., supra note 23, 273 Neb. at 809, 733
N.W.2d at 886.
38
See Neb. Rev. Stat. § 25-1030.02 (Reissue 2016).
- 197 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183401K account. Zoetis’ attorney conceded at oral arguments
that “it is not up to the [garnishee]” to determine what prop-
erty of the judgment debtor it must disclose. Instead, Zoetis
repeats its assertion that ERISA shields it from garnishee
liability because the federal act prevents assignment or alien-
ation of funds in a 401K account and preempts state garnish-
ment statutes.
To resolve the merits of this appeal, we must answer whether
ERISA shields a plan administrator of an employee benefit plan
from garnishee liability for failing to comply with our garnish-
ment statutes. This is an issue of first impression. We review
our garnishment law and ERISA’s effect on state garnishment
proceedings before addressing this issue.
(a) Garnishment
Garnishment is a legal aid in the execution of a judgment; it
is a method by which a judgment creditor can recover against
a third party for the debt owed by a judgment debtor. 39 A pro-
ceeding in garnishment is in effect an action by a judgment
debtor in the garnishor’s name against the garnishee. 40 Here,
we address only a postjudgment garnishment; we express no
opinion regarding prejudgment garnishment proceedings.
Under Nebraska’s garnishment statutes, a judgment credi-
tor may, as garnishor, request that the court issue a summons
of garnishment against any person or business which “has
property of and is indebted to the judgment debtor.” 41 After
receiving service of the summons, the person or business pos-
sessing or controlling the property of the judgment debtor
becomes a garnishee and must answer interrogatories and
39
See, § 25-1056; Myers v. Christensen, supra note 7. See, also, Neb. Rev.
Stat. §§ 25-1011 and 25-1026 to 25-1031.01 (Reissue 2016).
40
See Darr v. Long, 210 Neb. 57, 313 N.W.2d 215 (1981), overruled on
other grounds, Strong v. Omaha Constr. Indus. Pension Plan, 270 Neb. 1,
701 N.W.2d 320 (2005).
41
See § 25-1056(1). See, also, Spaghetti Ltd. Partnership v. Wolfe, supra
note 33.
- 198 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183disclose “the property of every description and credits of the
defendant in his possession or under his control” at the time of
the garnishment. 42
A garnishee can be discharged if he or she chooses to
“‘pay the money owing to the defendant by [the garnishee]’”
into court. 43
But if the garnishee does not pay the funds into court and
the garnishor is not satisfied with the garnishee’s answers to
the interrogatories, the garnishor may file an application to
determine the liability of the garnishee, and “‘may allege facts
showing the existence of indebtedness of the garnishee to the
defendant or of the property and credits of the defendant in
the hands of the garnishee.’” 44 After conducting an evidentiary
hearing, the court may then find the garnishee liable if the
garnishee was either “‘indebted to the defendant’” or “‘had
any property or credits of the defendant, in his possession or
under his control at the time of being served with the notice
of garnishment.’” 45
[20-23] A garnishee’s liability is to be determined as of
the time the garnishment summons is served. 46 The claim of
a judgment creditor garnishor against a garnishee can rise
no higher than the claim of the garnishor’s judgment debtor
against the garnishee. 47 A garnishor is subrogated to the rights
of the judgment debtor and can recover only by the same
right and to the same extent that the judgment debtor might
recover from the garnishee. 48 Accordingly, in determining the
42
See § 25-1026. See, also, Spaghetti Ltd. Partnership v. Wolfe, supra
note 33.
43
Myers v. Christensen, supra note 7, 278 Neb. at 992, 776 N.W.2d at 205(quoting § 25-1027).
44
Id. at 992-93, 776 N.W.2d at 205 (quoting § 25-1030).
45
Id. at 993, 776 N.W.2d at 205 (quoting § 25-1030.02).
46
Id.
47
Id.
48
See Darr v. Long, supra note 40.
- 199 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183liability of a garnishee to a garnishor, the test is whether, as
of the time the summons in garnishment was served, the facts
would support a recovery by the garnishor’s judgment debtor
against the garnishee. 49
(b) ERISA
[24] ERISA subjects all employee benefit plans—includ-
ing 401K accounts—to federal regulation. 50 ERISA provides a
uniform and systematic framework for regulation of employee
benefit plans to “ensure that the employee’s accrued benefits
are actually available for retirement purposes.” 51
(i) Anti-Alienation Statute
[25] ERISA utilizes an anti-alienation statute to bar credi-
tors from collecting undistributed funds in an employee benefit
plan. 52 The anti-alienation statute establishes that undistrib-
uted funds in an employee benefit plan cannot be “assigned
or alienated.” 53 Treasury regulations further define “assign-
ment” and “alienation” for purposes of ERISA as “[a]ny direct
or indirect arrangement (whether revocable or irrevocable)
whereby a party acquires from a participant or beneficiary a
right or interest enforceable against the plan in, or to, all or
any part of a plan benefit payment which is, or may become,
49
Myers v. Christensen, supra note 7.
50
See § 1002. See, also, e.g., LaRue v. DeWolff, Boberg & Associates, Inc.,
552 U.S. 248, 128 S. Ct. 1020, 169 L. Ed. 2d 847 (2008).
51
See, Brosamer v. Mark, 561 N.E.2d 767, 770 (Ind. 1990) (internal
quotation marks omitted) (emphasis omitted). See, also, Massachusetts v.
Morash, 490 U.S. 107, 109 S. Ct. 1668, 104 L. Ed. 2d 98 (1989); General
Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980).
52
See, § 1056(d)(1); Guidry v. Sheet Metal Workers Pension Fund, supra
note 3.
53
See § 1056(d)(1). But see § 1056(d)(2) and (3) (allowing alienation or
assignment of undistributed funds in employee benefit plan in limited
situations such as domestic relations order).
- 200 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183payable to the participant or beneficiary.” 54 Following the dis-
tribution of benefits to the participant or beneficiary, ERISA’s
anti-alienation statute no longer applies. 55
[26] While ERISA’s anti-alienation statute does not refer to
“garnishment” per se, 56 the U.S. Supreme Court has stated that
the restrictions of ERISA on assignment or alienation of pen-
sion benefits apply to garnishment. 57 This, the Court said, was
consistent with applicable administrative regulations, 58 with
the relevant legislative history, 59 and with the views of other
federal courts. 60
(ii) Preemption
[27,28] To ensure this uniform and systematic framework
is not frustrated by state laws, ERISA features a statute that
preempts “all State laws insofar as they may now or hereafter
relate to any employee benefit plan.” 61 Federal preemption
arises from the Supremacy Clause of the U.S. Constitution 62
and is the concept that state laws that conflict with federal
54
See 26 C.F.R. § 1.401(a)-13(c)(1)(ii) (2021) (emphasis supplied). See,
also, Guidry v. Sheet Metal Workers Nat. Pension Fund, 39 F.3d 1078(10th Cir. 1994).
55
See Guidry v. Sheet Metal Workers Nat. Pension Fund, supra note 54.
56
See Ditto v. McCurdy, 103 Haw. 153, 80 P.3d 974 (2003).
57
See Guidry v. Sheet Metal Workers Pension Fund, supra note 3.
58
See § 1.401(a)-13(c)(1)(ii). See, also, General Motors Corp. v. Buha,
supra note 51.
59
See, § 1056(d)(2); H.R. Conf. Rep. No. 93-1280, 93d Cong., 2d Sess. 280,
reprinted in 1974 U.S. Code Cong. & Admin. News 5038.
60
See, United Metal Products v. National Bank of Detroit, 811 F.2d 297 (6th
Cir. 1987); Ellis Nat. Bank of Jacksonville v. Irving Trust Co., 786 F.2d
466 (2d Cir. 1986); Tenneco Inc. v. First Virginia Bank of Tidewater, 698
F.2d 688 (4th Cir. 1983).
61
See § 1144(a).
62
U.S. Const. art. VI.
- 201 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183law are invalid. 63 Therefore, ERISA’s anti-alienation statute
preempts conflicting state garnishment laws. 64
However, the U.S. Supreme Court has found ERISA’s anti-
alienation statute has a limited preemptive scope. 65 It does
not preempt a state law that merely increases costs or alters
incentives for ERISA plans without forcing plans to adopt any
particular scheme of substantive coverage. 66
While the high court has not directly addressed the issue
before us here, it has indicated in dicta that a state garnish-
ment statute that does not specifically result in funds being
garnished from an employee benefit plan would not be pre-
empted. 67 In discussing the rare instances where the garnish-
ment of an account governed by ERISA is allowed, the Court
explained that state garnishment statutes are an “indirect source
of administrative costs” for plan administrators. 68 Further, the
Court stated:
[T]o read the [ERISA] pre-emption provision as displac-
ing all state laws affecting costs and charges on the theory
that they indirectly relate to ERISA plans . . . would
effectively read the limiting language . . . out of the stat-
ute, a conclusion that would violate basic principles of
statutory interpretation and could not be squared with our
63
Hauptman, O’Brien v. Auto-Owners Ins. Co., 310 Neb. 147, 964 N.W.2d
264 (2021).
64
See Guidry v. Sheet Metal Workers Pension Fund, supra note 3.
65
See New York State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 115 S. Ct. 1671, 131 L. Ed. 2d 695(1995).
66
See Rutledge v. Pharmaceutical Care Management Assn., ___ U.S. ___,
141 S. Ct. 474, 480, 208 L. Ed. 2d 327 (2020).
67
See New York State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., supra note 65.
68
Id., 514 U.S. at 662. See Mackey v. Lanier Collection Agency & Serv., 486
U.S. 825, 108 S. Ct. 2182, 100 L. Ed. 2d 836 (1988). But see Guidry v.
Sheet Metal Workers Pension Fund, supra note 3.
- 202 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183prior pronouncement that [p]re-emption does not occur
. . . if the state law has only a tenuous, remote, or periph-
eral connection with covered plans, as is the case with
many laws of general applicability. 69
[29] Picking up where the high court left off, we find
that ERISA does not preempt a garnishee, acting as a plan
administrator, from being found liable under § 25-1030.02.
Compliance with our garnishment statutes does not regulate
an employee benefit plan or conflict with any ERISA statute.
The disclosure requirement of § 25-1026, as applied to a 401K
account, results only in a minor increase in administrative
costs and does not force a plan to adopt any particular scheme.
Thus, the preemption doctrine, based on ERISA, does not
preclude a plan administrator from being subject to liability
under § 25-1030.02. The plan administrator would be liable,
not the plan itself.
(c) Zoetis’ Liability
While ERISA does not preempt § 25-1030.02, ERISA’s anti-
alienation statute still shields Zoetis from liability. Under the
circumstances here, the statute nullified the court’s ability to
find a 401K plan administrator liable as a garnishee.
As stated earlier, ERISA’s anti-alienation statute—as fur-
ther defined by the treasury regulation—bars a garnishor from
“acquir[ing] from a participant or beneficiary a right or interest
enforceable against the plan in, or to, all or any part of a plan
benefit payment which is, or may become, payable to the par-
ticipant or beneficiary.” 70
[30] As we have already explained, a proceeding in gar-
nishment is in effect an action by a judgment debtor in
the garnishor’s name against the garnishee. 71 A garnishor is
69
See New York State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., supra note 65, 514 U.S. at 661 (internal quotation
marks omitted).
70
See § 1.401(a)-13(c)(1)(ii).
71
See id.
- 203 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183subrogated to the rights of the judgment debtor and can
recover only by the same right and to the same extent that
the judgment debtor might recover from the garnishee. 72 The
claim of a judgment creditor garnishor against a garnishee
can rise no higher than the claim of the garnishor’s judgment
debtor against the garnishee. 73 It is an invariable rule that
under no circumstances shall the garnishee, by operation of the
proceedings against him or her, be placed in a worse condition
than the garnishee would be in if the judgment debtor’s claim
against the garnishee were enforced by the judgment debtor
himself or herself. 74 Therefore, in determining the liability of
a garnishee to a garnishor, the test is whether, as of the time
the summons in garnishment was served, the facts would sup-
port a recovery by the garnishor’s judgment debtor against
the garnishee. 75
Berg’s only claim against Zoetis would be to withdraw funds
in his 401K account. Zoetis’ liability would be determined
solely upon Florence’s acquired rights from Berg against the
undistributed 401K funds, but Florence cannot acquire such
rights under ERISA’s anti-alienation statute.
Stated another way, if Zoetis was found liable, it would
become a creditor of Berg’s 401K account. However, ERISA
would bar Zoetis from garnishing the account. As a result,
Zoetis would be in a worse position than if Berg had sought to
withdraw his funds from his account, because Zoetis would be
stuck with an unenforceable judgment against Berg. Therefore,
while Zoetis failed to comply with our garnishment statutes,
Zoetis cannot, under these circumstances, be found liable for
the value of Berg’s 401K account.
[30] We are uncertain whether the district court’s reasoning
aligns with our own. The court found that Zoetis could not be
72
See Darr v. Long, supra note 40.
73
See id.74
See Pundt v. Clary, 13 Neb. 406, 14 N.W. 167 (1882).
75
Myers v. Christensen, supra note 7.
- 204 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183liable because the “funds are not subject to garnishment,” but
it cited our cornerstone opinion discussing the test to determine
garnishee liability. 76 However, any difference in reasoning is
inconsequential. An appellate court may affirm a lower court’s
ruling that reaches the correct result, albeit based on differ-
ent reasoning. 77
We emphasize that ERISA plan administrators must com-
ply with § 25-1026. Nothing in this opinion should be read to
suggest that a district court cannot exercise its discretion to
address a willful refusal to comply with a garnishment sum-
mons and interrogatories, pursuant to the power of a court of
record to punish for contempt. 78
VI. CONCLUSION
ERISA’s anti-alienation statute prevents Florence from
acquiring Berg’s rights to the funds in his 401K account, and
therefore, under the circumstances here, Zoetis could not be
found liable for failing to comply with our garnishment stat-
utes. We affirm the district court’s order.
Affirmed.
Papik, J., not participating.
76
See, generally, id.
77
State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).
78
See Neb. Rev. Stat. § 25-2121 (Reissue 2016).
Stacy, J., concurring.
I agree with the outcome reached by the majority, but write
separately to comment more generally on appellate jurisdiction
to review garnishee liability determinations. The majority suc-
cinctly concludes that “[a]n order overruling an application to
determine garnishee liability in a postjudgment garnishment
proceeding is an order affecting a substantial right made on a
summary application in an action after a judgment is entered.”
But my review of our garnishment precedent suggests the juris-
dictional issue is not so straightforward.
- 205 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183Over the years, we have developed competing lines of
authority regarding the nature of garnishee liability determina-
tions. One line generally treats postjudgment garnishments as
actions in their own right, 1 and describes a decision adjudicat-
ing garnishee liability as a “judgment,” 2 presumably because
that vernacular appears in the garnishment statutes. 3 A second
line of authority describes garnishments as special proceed-
ings and thus conditions appellate jurisdiction on satisfying the
provisions of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020)
that govern final orders in special proceedings. 4 A third line
of authority describes garnishments in aid of execution as
summary applications in an action after judgment is rendered
and thus conditions appellate jurisdiction on satisfying the
provisions of § 25-1902 that govern final orders in summary
1
See, Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615(2002), disapproved on other grounds, ML Manager v. Jensen, 287 Neb.
171, 842 N.W.2d 566 (2014); Barnett v. Peters, 254 Neb. 74, 574 N.W.2d
487 (1998); Torrison v. Overman, 250 Neb. 164, 549 N.W.2d 124 (1996),
disapproved on other grounds, ML Manager, supra note 1.
2
Spaghetti Ltd. Partnership, supra note 1, 264 Neb. at 368, 647 N.W.2d at
619. See, also, Torrison, supra note 1.
3
See, e.g., Neb. Rev. Stat. § 25-1028 (Reissue 2016) (“judgment may be
entered for such amount as the court may find due from the garnishee”);
Neb. Rev. Stat. § 25-1030.02 (Reissue 2016) (“trial of the determination
of the liability of the garnishee shall be conducted the same as in a
civil action,” and if garnishee is found liable, “[t]he plaintiff in such
event may have a judgment against the garnishee”); Neb. Rev. Stat.
§ 25-1031 (Reissue 2016) (“[f]inal judgment shall not be rendered against
the garnishee until the action against the defendant in the original action
has been determined”); Neb. Rev. Stat. § 25-1031.01 (Reissue 2016)
(“[t]he judgment in the garnishment action shall be conclusive between the
garnishee, plaintiff, defendant, and any intervenor”).
4
See Western Smelting & Refining Co. v. First Nat. Bank, 150 Neb. 477,
35 N.W.2d 116 (1948). See, also, Turpin v. Coates, 12 Neb. 321, 323,
11 N.W. 300, 301 (1882) (“[w]e have no doubt that an order discharging
garnishees, is an order affecting a substantial right, made in a special
proceeding”).
- 206 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183applications. 5 And ­occasionally, we have combined classifi-
cations when describing the nature of garnishments in aid
of execution. 6
We acknowledged this “tangle of garnishment precedents” in
Shawn E. on behalf of Grace E. 7 Therein, we stated:
While it is well established that garnishment in aid of
execution is a legal statutory remedy, we have not always
been consistent in describing its nature. At various times
we have described garnishment as a legal action or as a
special proceeding, and we have even alluded to a chal-
lenge to a garnishment as a summary application in an
action after judgment is rendered. 8
We did not find it necessary in Shawn E. on behalf of Grace
E. to resolve the tangle of garnishment precedent, because we
concluded the garnishment determination at issue there was not
final and appealable under any line of authority. The major-
ity opinion here does not untangle the garnishment precedent
either, and instead, it relies on one of our established lines of
authority without distinguishing or disapproving the others.
But disposition of this appeal did not require the court to
reconcile our competing lines of authority, because no mat-
ter which line is followed, the jurisdictional conclusion is the
same: The district court’s determination of Zoetis’ garnishment
liability is final and appealable. As such, whether the district
court’s determination of Zoetis’ garnishee liability is char-
acterized as a judgment in a garnishment action, as an order
affecting a substantial right made during a special proceeding,
5
See Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d
906 (2016).
6
See Bourlier v. Keithley, 141 Neb. 862, 865, 5 N.W.2d 121, 123 (1942)
(“[a] proceeding in aid of execution is a special proceeding made upon a
summary application in an action after judgment”).
7
Shawn E. on behalf of Grace E. v. Diane S., 300 Neb. 289, 293, 912
N.W.2d 920, 924 (2018).
8
Id. at 293, 912 N.W.2d at 923-24.
- 207 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
FLORENCE LAKE INVESTMENTS V. BERG
Cite as 312 Neb. 183or as an order affecting a substantial right made on summary
application in an action after judgment is entered, I agree with
the majority that we have appellate jurisdiction. 9
Derr, District Judge, joins.
9
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020) (authorizing appeals of
district court judgments, decrees, and final orders).