Huff v. Otto , 28 Neb. Ct. App. 646 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
HUFF v. OTTO
Cite as 28 Neb. Ct. App. 646
Herchel H. Huff, appellant, v. Jeff Otto
and JWO Trucking, appellees.
___ N.W.2d ___
Filed July 21, 2020. No. A-19-536.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the trial court’s decision.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction
to adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
5. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
7. ____: ____. A court action taken without subject matter jurisdiction
is void.
8. Criminal Law: Search and Seizure: Property. Property seized in
enforcing a criminal law is said to be “in custodia legis,” or in the cus-
tody of the court.
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9. Trial: Search and Seizure: Evidence. Property seized and held as evi-
dence is to be kept so long as necessary to make it available as evidence
in any trial.
10. Jurisdiction: Search and Seizure: Evidence. The court where a com-
plaint has been filed and where seized property was or may be used as
evidence has exclusive jurisdiction for disposition of the property and to
determine rights therein, including questions respecting the title, posses-
sion, control, and disposition thereof.
11. Criminal Law: Search and Seizure: Property: Evidence. Property
introduced in evidence is in custodia legis, and while it is in custodia
legis, it is not subject to civil processes.
12. Statutes: Legislature: Intent. In discerning the meaning of 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 con-
sidered in its plain, ordinary, and popular sense, as it is the court’s duty
to discover, if possible, the Legislature’s intent from the language of the
statute itself.
13. Statutes: Intent. When interpreting a statute, effect must be given, if
possible, to all the several parts of a statute; no sentence, clause, or word
should be rejected as meaningless or superfluous if it can be avoided.
14. Statutes: Legislature: Intent. Under principles of statutory construc-
tion, the components of a series or collection of statutes pertaining to a
certain subject matter may be conjunctively considered and construed to
determine the intent of the Legislature so that different provisions of an
act are consistent, harmonious, and sensible.
15. ____: ____: ____. When words of a particular clause, taken literally,
would plainly contradict other clauses of the same statute, or lead to
some manifest absurdity or to some consequences which a court sees
plainly could not have been intended, or to result manifestly against the
general term, scope, and purpose of the law, then the court may apply
the rules of construction to ascertain the meaning and intent of the law-
giver, and bring the whole statute into harmony if possible.
16. Statutes. Where the same word is used repeatedly in the same act,
unless the context requires otherwise, the word is to have the same
meaning.
17. Jurisdiction: Trial: Search and Seizure: Property. Where invoked,
the grant of “exclusive jurisdiction” under Neb. Rev. Stat. § 29-818
(Reissue 2016) gives a criminal trial court exclusive jurisdiction over
only two issues: disposition of seized property and determination of
rights in seized property.
18. Courts: Jurisdiction: Legislature. The “common-law” jurisdiction
conferred to the district courts is beyond the power of the Legislature to
limit or control.
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19. Justiciable Issues. A justiciable issue requires a present, substantial
controversy between parties having adverse legal interests susceptible to
immediate resolution and capable of present judicial enforcement.
20. Courts: Justiciable Issues. A court decides real controversies and
determines rights actually controverted, and does not address or dispose
of abstract questions or issues that might arise in a hypothetical or ficti-
tious situation or setting.
21. ____: ____. Ripeness is a justiciability doctrine that courts consider in
determining whether they may properly decide a controversy.
22. Courts. The fundamental principle of ripeness is that courts should
avoid entangling themselves, through premature adjudication, in abstract
disagreements based on contingent future events that may not occur at
all or may not occur as anticipated.
23. Actions: Justiciable Issues: Standing. The ripeness doctrine is rooted
in the same general policies of justiciability as standing and mootness.
As compared to standing, ripeness assumes that an asserted injury is
sufficient to support standing, but asks whether the injury is too contin-
gent or remote to support present adjudication. It is a time dimension
of standing.
24. Courts: Jurisdiction. A determination of ripeness depends upon the
circumstances in a given case and is a question of degree.
25. Actions: Jurisdiction. An appellate court uses a two-part inquiry to
determine ripeness: (1) the jurisdictional question of the fitness of the
issues for judicial decision and (2) the prudential question concerning
the hardship to the parties of withholding court consideration.
26. Actions. Generally, a case is ripe when no further factual development
is necessary to clarify a concrete legal dispute susceptible to specific
judicial relief, as distinguished from an advisory opinion regarding con-
tingent future events.
27. Criminal Law: Search and Seizure: Property. The proper procedure
to obtain the return of seized property is to apply to the court in which
a criminal charge was filed for its return.
28. Criminal Law: Search and Seizure: Property: Presumptions: Proof.
When criminal proceedings have terminated, the person from whom
property was seized is presumed to have a right to its return, and the
burden is on the government to show that it has a legitimate reason to
retain the property.
29. Search and Seizure: Property: Proof. One in possession of property
has the right to keep it against all but those with better title, and the mere
fact of seizure does not require that entitlement be established anew.
30. Search and Seizure: Property: Presumptions: Title. The presumptive
right to possession of seized property may be overcome when superior
title in another is shown by a preponderance of the evidence.
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31. Actions: Torts: Words and Phrases. Tort actions, which arise from a
breach of a duty imposed by law, protect a plaintiff’s interest or right
to be free from another’s conduct which causes damage or loss to the
plaintiff’s person or property.
32. Actions: Jurisdiction. If an action is not ready, or “ripe” for judicial
determination, then the district court lacks subject matter jurisdiction to
consider the case.
Appeal from the District Court for Furnas County: James E.
Doyle IV, Judge. Appeal dismissed.
Herchel H. Huff, pro se.
Justin M. Daake, of Daake Law Office, L.L.C., for appellees.
Pirtle, Riedmann, and Bishop, Judges.
Bishop, Judge.
INTRODUCTION
Herchel H. Huff, pro se, sued Jeff Otto and Otto’s company,
JWO Trucking (referred to herein individually and collectively
as “Otto”), for the alleged negligent care of Huff’s vehicle
while stored on Otto’s property during and after a criminal
proceeding involving Huff. Huff appeals the decision of the
Furnas County District Court dismissing his case due to lack
of subject matter jurisdiction. Because exclusive jurisdiction
over Huff’s vehicle remained with the court in which Huff’s
criminal case was filed, the district court properly dismissed
Huff’s civil action.
BACKGROUND
In October 2007, Huff was driving his Chevrolet Camaro
when it struck and killed a jogger. Huff was arrested in con-
nection with the fatal collision and was subsequently convicted
of various charges in connection with the accident. See State
v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). The Camaro was
seized at the scene, and after it was inspected, it was moved
to Otto’s property where it was stored inside a locked metal
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HUFF v. OTTO
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shed. At some point, the Camaro was moved from indoor stor-
age to outdoors.
In July 2018, Huff filed a complaint against Otto due to the
“destruction” of his Camaro while it was in Otto’s care and
which “allow[ed] exculpatory evidence to be destroyed” and
denied Huff due process of the law. Huff alleged that Otto’s
storage of the Camaro was negligent. Huff asked for judgment
in his favor and for compensatory and punitive damages. Otto
moved to dismiss Huff’s complaint for failing to state a claim
upon which relief could be granted.
A telephonic hearing took place on October 16, 2018. Huff
mentioned motions he said he had filed, but the court noted
they were actually filed in a “criminal case, CR07-11.” After
argument, Otto’s motion to dismiss was taken under advise-
ment. On December 31, the motion to dismiss was granted in
part and denied in part. The court dismissed Huff’s claim of a
denial of due process (no alleged state action) and his request
for punitive damages (not recoverable under Nebraska law).
However, the court found that Huff alleged sufficient facts to
set forth a negligence claim; the motion to dismiss was over-
ruled with respect to that one claim.
On January 16, 2019, Huff filed an amended complaint.
He identified himself as an inmate and Otto as having been
under contract with the Furnas County Sheriff’s Department
to store seized vehicles. Huff further alleged that on October
3, 2007, Huff was inside his Camaro when it struck and killed
a jogger. The Camaro was seized at the scene, and after it
was inspected, it was moved to Otto’s property where it was
stored inside a locked metal shed. Huff attached and incor-
porated into his amended complaint an affidavit by a sheriff.
The sheriff visited Otto’s property in 2011 and found Huff’s
vehicle outside with the “T-tops” off and the windows down;
Otto informed the sheriff that Huff’s vehicle was moved to
an outdoor storage pasture “‘after the trial was over.’” Huff’s
vehicle remains there. Huff believed his Camaro was left out-
doors to “destroy exculpatory evidence.” Huff claimed that his
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HUFF v. OTTO
Cite as 28 Neb. Ct. App. 646
Camaro and its contents were “destroyed” while in the care
of Otto in violation of Neb. Rev. Stat. §§ 60-2401 to 60-2411
(Reissue 2010) (statutes related to vehicles being towed from
restricted parking lots).
Otto again filed a motion to dismiss. At the end of a tele­
phonic hearing on January 30, 2019, Otto’s motion to dismiss
was taken under advisement. In February, Huff filed a “Motion
for County to Pay for Private Investigator” (he wanted the
Camaro photographed) and a “Motion for Order to Preserve
Evidence ( Camaro),” in which he alleged that the court was
“well aware” that his criminal “appeals are still being litigated”
so that his Camaro “must be inside a secured building.”
On May 2, 2019, the district court entered an “Order of
Dismissal.” It understood Huff’s amended complaint set forth
two causes of action, one for relief under §§ 60-2401 to
60-2411 and one for the negligent care of his vehicle while
it was in the possession of Otto pending the prosecution of
Huff for “motor vehicle homicide.” The district court took
judicial notice of district court case “State of Nebraska v.
Herchel H. Huff” at “CR07-11,” the criminal case in which
Huff was convicted and sentenced for manslaughter, motor
vehicle homicide, tampering with a witness, and refusal to
submit to a chemical test related to the fatal collision on
October 3, 2007. The district court found that the criminal
case was still an ongoing action as of May 2, 2019, because
Huff was putting forth new claims of innocence and pursu-
ing postconviction proceedings. The court found that the
evidence that served as the basis for Huff’s initial conviction,
i.e., the Camaro, had to be preserved for a possible retrial in
the event Huff obtained one. Further, the district court found
that the Camaro, the subject matter of the instant case, was
in custodia legis or, in other words, under the control of the
court overseeing Huff’s criminal case. Finally, noting that the
absence of subject matter jurisdiction may be raised at any
time, the district court found it did not have jurisdiction to
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HUFF v. OTTO
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decide the issues raised by Huff in his amended complaint.
The district court stated in its order:
Thus, while Huff may have a claim for the negligent
care of the Camaro during its bailment, such claim is
not ripe and cannot be decided by the court because the
subject matter of his claims, i.e., the Camaro, is currently
in the control and custody of the court by reason of the
proceedings in [the criminal case]. Because the claim is
not ripe and because the court does not have jurisdic-
tion over the matter of the disposition of the Camaro
until the proceedings in [the criminal case] are finally
resolved, the court finds Huff’s amended complaint must
be dismissed.
Other pending motions and objections generally related to
Huff’s various discovery requests and other motions filed by
Huff were declared moot by reason of dismissal of the case and
were also dismissed.
Huff, pro se, appeals.
ASSIGNMENTS OF ERROR
Huff assigns that the district court erred by (1) dismissing
his amended complaint “by failing to allow [him] his witnesses
under the Subpoena Duces Tecum and to take deposition[s]”;
(2) denying his amended complaint “before appl[y]ing the
standard” in “§60-2406”; (3) violating Huff’s due process
rights “by failing to order [Otto] to preserve the [C]amaro
which was potentially exculpatory evidence, and where several
motions were filed”; (4) applying the “custodia legis standard,
after the [A]ttorney [G]eneral said he was releasing the car, and
for the prosecutorial vindictiveness”; and (5) denying motions
to recuse Otto’s attorney and the assistant Attorney General
(not counsel to any party in this action).
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
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HUFF v. OTTO
Cite as 28 Neb. Ct. App. 646
independent of the trial court’s decision. See McEwen v.
Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120
(2019).
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. Christensen v. Gale, 301 Neb. 19, 917 N.W.2d
145 (2018).
ANALYSIS
[3] When a trial court lacks jurisdiction to adjudicate the
merits of a claim, issue, or question, an appellate court also
lacks the power to determine the merits of the claim, issue, or
question presented to the lower court. State v. McGuire, 301
Neb. 895, 921 N.W.2d 77 (2018). Thus, the existence of our
jurisdiction depends on whether the district court had jurisdic-
tion. Id.
[4-7] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal with
the general subject matter involved. J.S. v. Grand Island Public
Schools, 297 Neb. 347, 899 N.W.2d 893 (2017). Parties cannot
confer subject matter jurisdiction upon a judicial tribunal by
either acquiescence or consent, nor may subject matter juris-
diction be created by waiver, estoppel, consent, or conduct
of the parties. Id. Lack of subject matter jurisdiction may be
raised at any time by any party or by the court sua sponte.
Id. A court action taken without subject matter jurisdiction is
void. Id.
The district court noted that Huff’s convictions in the
criminal case arose out of Huff’s operation of his Camaro.
See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011) (set-
ting forth detailed facts underlying Huff’s convictions). The
Camaro involved in the criminal case is without question the
subject of the present civil case. According to Huff’s amended
complaint, the Camaro has been in the continuing care of Otto
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pursuant to a contract with law enforcement ever since it was
seized at the scene of the fatal 2007 collision and was sub-
jected to a brief investigation.
Camaro in Custodia Legis
[8-11] The district court correctly found that the Camaro
was in custodia legis. Property seized in enforcing a criminal
law is said to be “in custodia legis,” or in the custody of the
court. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
Neb. Rev. Stat. § 29-818 (Reissue 2016) establishes the basic
framework for dealing with seized property, and it provides, in
relevant part:
[P]roperty seized under a search warrant or validly seized
without a warrant shall be safely kept by the officer seiz-
ing the same, unless otherwise directed by the judge or
magistrate, and shall be so kept so long as necessary for
the purpose of being produced as evidence in any trial.
Property seized may not be taken from the officer having
it in custody by replevin or other writ so long as it is or
may be required as evidence in any trial, nor may it be
so taken in any event where a complaint has been filed
in connection with which the property was or may be
used as evidence, and the court in which such complaint
was filed shall have exclusive jurisdiction for disposition
of the property or funds and to determine rights therein,
including questions respecting the title, possession, con-
trol, and disposition thereof.
Several important principles follow from this statutory frame-
work, including a jurisdictional precept. State v. McGuire,
supra. First, an officer seizing property pursuant to a war-
rant must safely keep the seized property, unless otherwise
directed by a judge or magistrate. Id. Second, the seized prop-
erty is to be kept so long as necessary to make it available as
evidence in any trial. Id. Third, so long as the seized property
may be required as evidence in a trial, it may not be taken
from the officer by means of a writ of replevin. Id. Fourth,
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where a complaint has been filed asserting a charge where the
property was or may be used as evidence, a writ of replevin
would not lie to take the property, even if the property was
no longer required in evidence. Id. And, the court where a
complaint has been filed and where seized property was or
may be used as evidence has exclusive jurisdiction for dispo-
sition of the property and to determine rights therein, includ-
ing questions respecting the title, possession, control, and
disposition thereof. See id. The proper procedure to obtain
the return of seized property is to apply to the court for its
return. State v. Agee, supra. See, also, State v. Allen, 159 Neb.
314, 66 N.W.2d 830 (1954) (property introduced in evidence
is in custodia legis, and while it is in custodia legis, it is not
subject to civil processes).
While it appears that Huff has filed a motion in the crimi-
nal case to have the Camaro returned to him, that motion was
apparently still pending when this civil action was taken up
by the district court on Otto’s motion to dismiss. According
to the district court, Huff filed a “motion for DNA testing of
the Camaro” and other filings “relating to the Camaro” in the
criminal case in March 2018; the motions were denied except
for a “motion for the return of the Camaro,” which was not
ruled upon. The parties do not contest these findings by the
district court.
The record shows that since October 3, 2007, the Camaro
has been property seized for the purpose of enforcing criminal
laws in Huff’s ongoing criminal case; therefore, the Camaro
has been and remains to be in the custody of the court in the
criminal case. See State v. Agee, supra. As such, the district
court in Huff’s separate criminal case continues to have exclu-
sive jurisdiction to determine the rights to the Camaro and the
Camaro’s disposition. See § 29-818.
Further, § 29-818 mandates that the seized property, the
Camaro, is to be kept so long as necessary to make it avail-
able as evidence in “any trial.” Postconviction proceedings
are the equivalent of a “trial” for purposes of § 29-818. State
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v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017). One
motion, among others, pending in Huff’s criminal case at
the time the district court ordered dismissal of the instant
case was one for postconviction relief. Huff understands that
his vehicle was being retained “in case of a retrial.” Brief
for appellant at 21. He even claims that a motion to preserve
“the evidence,” i.e., the Camaro, was granted on August 7,
2019 (necessarily, in the criminal case). Id. at 22. However,
there is nothing in the record to indicate any order being
entered in the criminal case granting the return of the Camaro
to Huff or otherwise showing that the court in the criminal
case terminated its exclusive jurisdiction over the vehicle or
its contents.
The district court found that because the Camaro was in the
custody of the court in the criminal case pursuant to § 29-818,
it “does not have jurisdiction in this [civil] case to decide
the issues raised by Huff in his amended complaint.” In sup-
port of that determination, the district court cited to the legal
proposition that the absence of subject matter jurisdiction may
be raised at any time by any party or by the court sua sponte.
Therefore, the district court appeared to tie its lack of subject
matter jurisdiction, at least in part, to § 29-818. However, the
district court went on to say that Huff’s claim for negligent
care of the Camaro “is not ripe and cannot be decided by
the court because the subject matter of his claims, i.e., the
Camaro, is currently in the control and custody of the court by
reason of the proceedings in the [criminal case].” The district
court also concluded that it would not have jurisdiction “over
the matter of the disposition of the Camaro until the proceed-
ings in [the criminal case] are finally resolved.”
To the extent the district court read § 29-818 broadly to
mean that if the exclusive jurisdiction of a criminal court has
been invoked under § 29-818 regarding certain seized prop-
erty, then another court is precluded altogether from exercis-
ing subject matter jurisdiction over any other action involv-
ing the same seized property, we do not agree. On the other
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hand, the district court also stated that Huff’s claim “is not
ripe,” which can also serve as a basis for lack of subject mat-
ter jurisdiction. We ultimately agree with the district court that
it lacked subject matter jurisdiction over the civil action based
on Huff’s claim not being ripe, but we first address the juris-
dictional aspects of § 29-818.
Jurisdiction Over Camaro
Pursuant to § 29-818
[12-15] In discerning the meaning of 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, as it is the court’s duty to discover, if possible, the
Legislature’s intent from the language of the statute itself.
Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018).
When interpreting a statute, effect must be given, if pos-
sible, to all the several parts of a statute; no sentence, clause,
or word should be rejected as meaningless or superfluous if
it can be avoided. McEwen v. Nebraska State College Sys.,
303 Neb. 552, 931 N.W.2d 120 (2019). Under principles of
statutory construction, the components of a series or collec-
tion of statutes pertaining to a certain subject matter may
be conjunctively considered and construed to determine the
intent of the Legislature so that different provisions of an act
are consistent, harmonious, and sensible. Vokal v. Nebraska
Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d 75
(2009). When words of a particular clause, taken literally,
would plainly contradict other clauses of the same statute,
or lead to some manifest absurdity or to some consequences
which a court sees plainly could not have been intended, or to
result manifestly against the general term, scope, and purpose
of the law, then the court may apply the rules of construction
to ascertain the meaning and intent of the lawgiver, and bring
the whole statute into harmony if possible. Pan v. IOC Realty
Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018). See, also,
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Vasquez v. CHI Properties, 302 Neb. 742, 925 N.W.2d 304
(2019) (in construing statute, appellate court will, if possible,
try to avoid construction which would lead to absurd, uncon-
scionable, or unjust results).
As set forth previously, § 29-818 provides, as relevant
here, “the court in which such complaint was filed shall have
exclusive jurisdiction for disposition of the property or funds
and to determine rights therein, including questions respecting
the title, possession, control, and disposition thereof.” Section
29-818 is located in a series of Nebraska statutes on criminal
procedure titled “Disposition of Seized Property.” See Neb.
Rev. Stat. §§ 29-818 to 29-829 (Reissue 2016). “This series or
collection of statutes, as the title suggests, addresses various
rules pertaining to the possession, control, suppression, dispo-
sition, and return of property seized in connection with a crimi-
nal proceeding.” State v. Cox, 3 Neb. Ct. App. 80, 88, 523 N.W.2d
52, 59 (1994). Sections 29-818 to 29-820 specifically concern
seized property. The area where § 29-818 is found suggests
that the grant of exclusive jurisdiction in the statute is meant to
relate only to jurisdiction over seized property.
The language at issue in § 29-818 has been restated by the
Nebraska Supreme Court in the literal and narrow sense in
which it appears in the statute. See, State v. McGuire, 301 Neb.
895, 902, 921 N.W.2d 77, 83 (2018) (“a court where a com-
plaint has been filed and where seized property was or may be
used as evidence has ‘exclusive jurisdiction for disposition of
the property or funds and to determine rights therein, includ-
ing questions respecting the title, possession, control, and
disposition thereof’”); State v. Agee, 274 Neb. 445, 448, 741
N.W.2d 161, 165 (2007) (“court in which a criminal charge
was filed has exclusive jurisdiction to determine the rights
to seized property, and the property’s disposition”). All five
principles that follow from § 29-818 relate to the custody of
seized property. See State v. McGuire, supra (listing principles
of § 29-818). Thus, by its own terms, the jurisdictional precept
in § 29-818 is limited in scope.
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[16] Under § 29-819, where seized property is no longer
required as evidence in the prosecution of any complaint or
information, “the court which has jurisdiction of such prop-
erty may transfer the same to the jurisdiction of any other
court . . . where it is shown to the satisfaction of the court
that such property is required as evidence in any prosecution in
such other court.” (Emphasis supplied.) A harmonious reading
of §§ 29-818 and 29-819 is that references to jurisdiction in
each are to jurisdiction over seized property, not subject matter
jurisdiction. See, Vokal v. Nebraska Acct. & Disclosure Comm.,
276 Neb. 988, 759 N.W.2d 75 (2009) (components of series of
statutes pertaining to certain subject matter may be conjunc-
tively considered and construed to determine legislative intent
so different provisions of act are consistent, harmonious, and
sensible); Knoell v. Huff, 224 Neb. 90, 395 N.W.2d 749 (1986)
(where same word is used repeatedly in same act, unless con-
text requires otherwise, word is to have same meaning). We
note that jurisdiction is not explicitly mentioned in § 29-820,
which relates to the manner of disposition of different kinds
of property. See, also, State v. McGuire, supra (holding that
§ 29-820 applies only where exclusive jurisdiction of court
under § 29-818 has not been invoked).
Regarding the plain language of §§ 29-818, 29-819, and
29-820, this court stated:
We believe that the obvious purpose of those provi-
sions in the foregoing statutes which define which court
has “jurisdiction” over the seized property is to assure
safekeeping and custody of the property, as well as identi-
fying which court has the authority, should the issue arise,
to dispose of the property or funds and to determine rights
therein, including questions respecting the title, posses-
sion, control, and disposition thereof. Such provisions
also outline a mechanism enabling the physical transfer
of seized property from one court to the other (when
such a transfer is necessary) and assure accountability for
the property.
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State v. Cox, 3 Neb. Ct. App. 80, 89, 523 N.W.2d 52, 59 (1994)
(emphasis supplied). This court found that another statute in
the series (§ 29-827, since repealed), which also related to
the disposition of seized property, was similar to § 29-819;
we concluded, Ҥ 29-827 is concerned with jurisdiction over
the property, as distinguished from jurisdiction over the case.”
State v. Cox, 3 Neb. Ct. App. at 89, 523 N.W.2d at 59-60 (empha-
sis supplied). We noted that such a construction harmonized
the now-repealed section with the “concept and purpose of
‘jurisdiction’ over seized property as that term is used through-
out this series of statutes and that such interpretation is reason-
able to accomplish the objectives sought by this legislation.”
Id. at 90, 523 N.W.2d at 60.
[17,18] We conclude that, where invoked, the grant of
“exclusive jurisdiction” under § 29-818 gives a criminal trial
court exclusive jurisdiction over only two issues: disposi-
tion of seized property and determination of rights in seized
property. Therefore, even though the Camaro is in custody of
the court in the criminal case, § 29-818 itself does not bar the
district court from exercising subject matter jurisdiction over
the claims in Huff’s amended complaint. There is no question
that district courts have general jurisdiction over common-law
negligence claims such as the one raised in Huff’s amended
complaint. See, Neb. Const. art. V., § 9 (district courts have
common-law jurisdiction); Neb. Rev. Stat. § 24-302 (Reissue
2016) (district courts have general, original, and appellate
jurisdiction in all matters civil and criminal, except where
otherwise provided); Kotrous v. Zerbe, 287 Neb. 1033, 846
N.W.2d 122 (2014) (“common-law” jurisdiction conferred
to district courts is beyond power of Legislature to limit
or control).
Therefore, to the extent the district court’s order can be
read to mean it lacked subject matter jurisdiction because of
§ 29-818, we do not agree that § 29-818 requires such a deter-
mination, but as previously stated, we do agree that the ripeness
doctrine supports the district court’s dismissal of Huff’s action.
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Ripeness Doctrine
[19,20] A justiciable issue requires a present, substantial
controversy between parties having adverse legal interests
susceptible to immediate resolution and capable of present
judicial enforcement. Stewart v. Heineman, 296 Neb. 262, 892
N.W.2d 542 (2017). A court decides real controversies and
determines rights actually controverted, and does not address
or dispose of abstract questions or issues that might arise in a
hypothetical or fictitious situation or setting. Id.
[21-23] Ripeness is a justiciability doctrine that courts
consider in determining whether they may properly decide a
controversy. Christensen v. Gale, 301 Neb. 19, 917 N.W.2d
145 (2018). The fundamental principle of ripeness is that
courts should avoid entangling themselves, through premature
adjudication, in abstract disagreements based on contingent
future events that may not occur at all or may not occur as
anticipated. Id. The ripeness doctrine is rooted in the same
general policies of justiciability as standing and mootness.
Stewart v. Heineman, supra. As compared to standing, ripeness
assumes that an asserted injury is sufficient to support stand-
ing, but asks whether the injury is too contingent or remote
to support present adjudication. Id. It is a time dimension of
standing. Id. (standing requires litigant have such personal
stake in outcome of controversy as to warrant invocation of
court’s jurisdiction and justify exercise of court’s remedial
powers on litigant’s behalf).
[24-26] A determination of ripeness depends upon the cir-
cumstances in a given case and is a question of degree.
Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (2014). An
appellate court uses a two-part inquiry to determine ripeness:
(1) the jurisdictional question of the fitness of the issues for
judicial decision and (2) the prudential question concerning the
hardship to the parties of withholding court consideration. See
Stewart v. Heineman, supra. This approach is adopted from the
Eighth Circuit, which has explained that
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“[t]he ‘fitness for judicial decision’ inquiry goes to a
court’s ability to visit an issue. . . . [I]t safeguards against
judicial review of hypothetical or speculative disagree-
ments. . . .
“In addition to being fit for judicial resolution, an issue
must be such that delayed review will result in significant
harm. ‘Harm’ includes both the traditional concept of
actual damages—pecuniary or otherwise—and also the
heightened uncertainty and resulting behavior modifica-
tion that may result from delayed resolution.”
City of Omaha v. City of Elkhorn, 276 Neb. 70, 80, 752
N.W.2d 137, 145-46 (2008) (quoting Nebraska Public Power
Dist. v. MidAmerican Energy, 234 F.3d 1032 (8th Cir. 2000)).
Because ripeness is peculiarly a question of timing, it is the
situation now rather than the situation at the time of the district
court’s decision that must govern. Shepard v. Houston, supra.
Generally, a case is ripe when no further factual development
is necessary to clarify a concrete legal dispute susceptible to
specific judicial relief, as distinguished from an advisory opin-
ion regarding contingent future events. Id.
From what we can tell, the circumstances of Huff’s crimi-
nal case have not changed, as pertinent here, since the dis-
trict court entered its order dismissing this civil case. In his
criminal case, in June 2019, Huff appealed the denial of a
postconviction motion (among other things). We affirmed the
orders of the district court from which Huff appealed. See
State v. Huff, No. A-19-537, 2020 WL 2374884 (Neb. App.
May 12, 2020) (selected for posting to court website). Of rel-
evance here, we concluded from our record in that appeal that
the district court had not yet ruled on a motion which Huff had
filed in the criminal case on August 17, 2018, for the return
of seized property, including the Camaro and its contents.
Therefore, we did not consider Huff’s claim alleging that the
district court erred in dismissing his motion for the return of
seized property. Huff had also asserted that the district court
erred in failing to order the State to preserve the Camaro; we
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noted that in his appellate brief he referred to an August 7,
2019, order in which the district court granted his motion to
preserve the Camaro. We did not address the merits of Huff’s
claim regarding that motion because the assigned error was
not properly before us. Importantly, there is still no indica-
tion that the criminal court has decided the disposition of the
Camaro and its contents or determined the rights in that seized
property, which continues to be rightfully held in the custody
of the criminal court.
A closer review of the procedure involved for a person seek-
ing the return of seized property that is held in the custody
of a criminal court is helpful to the first part of our ripeness
inquiry—the jurisdictional question of whether the issues in
Huff’s civil case are fit for judicial decision.
[27] The proper procedure to obtain the return of seized
property is to apply to the court in which a criminal charge
was filed for its return. See State v. Agee, 274 Neb. 445, 741
N.W.2d 161 (2007). See, also, § 29-818. But see Dortch v. City
of Omaha, 26 Neb. Ct. App. 244, 918 N.W.2d 637 (2018) (civil
replevin action may be available remedy for return of seized
property when certain investigation concerning seized property
never resulted in charge being filed).
[28-30] Case law applying and interpreting § 29-818 pro-
vides guidance on how proceedings related to a motion for the
return of seized property are to be conducted. State v. Ebert,
303 Neb. 394, 929 N.W.2d 478 (2019). When criminal pro-
ceedings have terminated, the person from whom property was
seized is presumed to have a right to its return, and the burden
is on the government to show that it has a legitimate reason
to retain the property. Id. One in possession of property has
the right to keep it against all but those with better title, and
the mere fact of seizure does not require that entitlement be
established anew. Id. A motion for the return of seized prop-
erty is properly denied only if (1) the claimant is not entitled
to lawful possession of the property (i.e., government presents
evidence of cognizable claim or right of possession adverse
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to that of movant-defendant), (2) the property is contraband
or subject to forfeiture, or (3) the government has some other
continuing interest in the property (e.g., ongoing investiga-
tion, tax lien, imposed fine, or restitution order). See, id.;
State v. Agee, supra. See, also, State v. Ebert, supra (presump-
tive right to possession of seized property may be overcome
when superior title in another is shown by preponderance
of evidence).
As discussed previously, the district court in Huff’s crimi-
nal case has exclusive jurisdiction over the disposition of the
Camaro and its contents, as well as the determination of the
rights therein under § 29-818; thus, Huff can seek return of
his seized property through application to the criminal court.
See State v. Agee, supra. Once criminal proceedings have ter-
minated, a date yet to be known, Huff will have a presumptive
right to the return of his seized property currently held in the
custody of the criminal court, unless the State meets its burden
to overcome that presumption as to all or some of the seized
property. See State v. Ebert, supra. Regardless, the presumptive
right to the return of such property does not lie until Huff’s
criminal proceedings are over. See id. When that time comes,
the criminal court will be in a position to exercise its exclusive
jurisdiction over the seized property and rule on any applica-
tion for its return following the case law described above as it
relates to the Camaro and its contents. Additionally, the State
would be afforded the opportunity to rebut a presumption of
Huff’s rights in the seized property.
[31] Neither the district court nor this court can speculate
as to when Huff’s criminal proceedings will end. Nor would
it be appropriate to hypothesize the outcome of any motion
for the return of the Camaro and personal property within
it, because to do so would overstep the exclusive jurisdic-
tion of the criminal court under § 29-818 over such matters.
Therefore, in this civil action at this time, we cannot accept
as fact the parties’ apparent assumption that Huff has a pres-
ent ownership interest in the Camaro and its contents, which
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Huff claims have been “destroyed” during the time they have
been held in custody. Until the criminal court decides the
proper disposition of the seized property and determines rights
therein, Huff’s negligence claim regarding the same property
is not ripe as the negligence claim is contingent on whether
Huff has a present possessory interest in all or some of that
property. See, Christensen v. Gale, 301 Neb. 19, 917 N.W.2d
145 (2018) (courts should avoid entangling themselves in
abstract disagreements based on contingent future events that
may not occur at all or may not occur as anticipated); Stewart
v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017) (ripeness
is time dimension of standing); L. J. Vontz Constr. Co. v. State,
230 Neb. 377, 432 N.W.2d 7 (1988) (tort actions arise from
breach of duty imposed by law and protect plaintiff’s inter-
est or right to be free from another’s conduct which causes
damage or loss to plaintiff ’s person or property). We also note
that the storage of the seized property and its condition may
change, for better or worse, by the time the criminal court
makes those decisions. Further factual development, which
can only occur in the criminal court, is therefore necessary to
the potential civil negligence dispute. See Shepard v. Houston,
289 Neb. 399, 855 N.W.2d 559 (2014) (generally, case is ripe
when no further factual development is necessary to clarify
concrete legal dispute susceptible to specific judicial relief).
The issues in Huff’s civil case are not fit for present judi-
cial review.
Regarding the second part of the ripeness inquiry, we can-
not find that Huff will experience significant hardship to the
delay of his civil negligence action where, depending on how
matters are resolved in the criminal court, he may not have a
right to pursue his civil negligence action in the first place.
Also, it is evident that Huff’s criminal proceedings have con-
tinued for years at his insistence. Given the circumstances
here, any hardship to Huff by a delayed review of his civil
negligence action is minimal.
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[32] Having considered the jurisdictional and prudential
questions necessitated under the two-part ripeness test, we con-
clude that Huff’s civil case is not ripe for judicial review. For
that reason, the district court lacked subject matter jurisdic-
tion to consider Huff’s civil case. See City of Omaha v. City
of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008) (if action
is not ready, or “ripe” for judicial determination, then dis-
trict court lacks subject matter jurisdiction to consider case).
Accordingly, we agree with the district court’s ultimate con-
clusion that it lacked subject matter jurisdiction at this time,
albeit our discussion focused on different grounds, at least in
part. See State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d
706 (2017) (when record demonstrates decision of trial court
is correct, although such correctness is based on different
grounds from those assigned by trial court, appellate court
will affirm).
Accordingly, the district court properly dismissed Huff’s
civil action for lack of jurisdiction. And when a trial court
lacks the power, that is, jurisdiction, to adjudicate the merits of
a claim, an appellate court also lacks the power to adjudicate
the merits of the claim. See Davis v. State, 297 Neb. 955, 902
N.W.2d 165 (2017).
CONCLUSION
For the foregoing reasons, we dismiss this appeal.
Appeal dismissed.