Amend v. Nebraska Pub. Serv. Comm.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/16/2018 01:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
AMEND v. NEBRASKA PUB. SERV. COMM.
Cite as 298 Neb. 617
K aren A mend et al., appellants, v. Nebraska
Public Service Commission, appellee.
___ N.W.2d ___
Filed January 12, 2018. No. S-16-948.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
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. Tort Claims Act: Appeal and Error. Whether the allegations made
by a plaintiff constitute a cause of action under the State Tort Claims
Act or whether the allegations set forth claims which are precluded by
the exemptions set forth in the act is a question of law, for which an
appellate court has a duty to reach its conclusions independent of the
conclusions reached by the district court.
4. Tort Claims Act: Immunity: Waiver: Appeal and Error. An excep-
tion to the State’s waiver of immunity under the State Tort Claims Act
is an issue that the State may raise for the first time on appeal and that
a court may consider sua sponte.
5. Jurisdiction: Appeal and Error. An appellate court has an independent
duty to decide jurisdictional issues on appeal, even if the parties have
not raised the issue.
6. Constitutional Law: Immunity: Waiver. Under the 11th Amendment,
a nonconsenting state is generally immune from suit unless the state has
waived its immunity.
7. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act allows
a limited waiver of the State’s sovereign immunity, subject to statu-
tory exceptions.
8. Statutes: Appeal and Error. Appellate courts give statutory language
its plain and ordinary meaning and will not resort to interpretation
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to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
9. Statutes: Immunity: Waiver. Statutes that purport to waive the State’s
protection of sovereign immunity are strictly construed in favor of the
sovereign and against the waiver.
10. Immunity: Waiver. In order to strictly construe against a waiver of
sovereign immunity, courts broadly read exemptions from a waiver of
sovereign immunity.
11. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
only where stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other reason-
able construction.
12. Political Subdivisions Tort Claims Act: Tort Claims Act. The discre-
tionary function exception is expressed in nearly identical language in
the State Tort Claims Act and the Political Subdivisions Tort Claims Act;
thus, cases construing the state exception apply as well to the exception
granted to political subdivisions.
13. Tort Claims Act: Immunity: Appeal and Error. An appellate court
must determine whether sovereign immunity lies from the nature of the
underlying dispute. Where the facts are undisputed, whether an excep-
tion to immunity under the State Tort Claims Act precludes suit is a
question of law.
14. Public Service Commission: Constitutional Law: Administrative
Law. The Public Service Commission’s authority to regulate public
grain warehouses is purely statutory, in contrast to its plenary authority
to regulate common carriers under Neb. Const. art. IV, § 20.
15. Public Service Commission: Tort Claims Act. The Public Service
Commission is a state agency for purposes of the State Tort Claims
Act, and as a result, the provisions of the act are applicable in tort suits
against the commission.
16. Tort Claims Act: Licenses and Permits. State agencies may not be
sued under the State Tort Claims Act for claims based upon the failure
to suspend or revoke a license.
17. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Shawn D. Renner and Andre R. Barry, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellants.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
AMEND v. NEBRASKA PUB. SERV. COMM.
Cite as 298 Neb. 617
Douglas J. Peterson, Attorney General, and Timothy R. Ertz
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Funke, J.
This appeal concerns the dismissal of a complaint filed in
the district court for Lancaster County under Nebraska’s State
Tort Claims Act (STCA)1 which alleged the Nebraska Public
Service Commission (PSC), the appellee, negligently failed to
enforce Nebraska statutes and regulations against Pierce Grain
Elevator, Inc. (PEI). The district court ruled appellants’ claims
were grounded in exceptions to the STCA’s limited waiver of
sovereign immunity and granted the PSC’s motion to dismiss.
We affirm.
I. BACKGROUND
The following statement of facts is taken from allegations in
appellants’ complaint, which we accept as true for purposes of
reviewing the district court’s dismissal of the complaint.
Appellants are a group of over 30 farmers and farm man-
agement customers of PEI, a grain warehouse in northeast
Nebraska, which failed and closed in March 2014. Through­
out the fall of 2013 and spring of 2014, each appellant
conducted business with PEI, unaware that PEI was finan-
cially unstable.
On July 15, 2013, the PSC performed a compliance review
of PEI which showed outstanding checks written by PEI
exceeded PEI’s account balance by more than $603,000. PEI’s
owner equity was over $5.8 million in the negative, and its
working capital ratio was $7.2 million in the negative. The
PSC found PEI had over a half-million-dollar working capital
deficiency dating back to at least December 31, 2012. The
1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
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AMEND v. NEBRASKA PUB. SERV. COMM.
Cite as 298 Neb. 617
PSC contacted PEI’s bank and expressed concern but took no
further action. Until its closure, PEI’s net worth and work-
ing capital ratio remained negative by millions of dollars.
Nevertheless, PEI continued to contract with appellants and
take possession of their grain.
On March 5, 2014, the PSC terminated PEI’s grain ware-
house and grain dealer licenses. Appellants were in large part
unpaid for their grain. Appellants suffered a cumulative finan-
cial loss of over $2.56 million.
In June 2016, appellants filed a complaint against the PSC
under the STCA which alleged their losses resulted from
the PSC’s negligent failure to perform its obligations under
Nebraska law. Appellants’ lawsuit claims the PSC failed
to enforce several Nebraska statutes and regulations which
impose minimum financial requirements for grain dealers. In
particular, appellants highlight a regulatory procedure which
they contend, based on the facts of this case, imposed a man-
datory duty on the grain warehouse director for the PSC to file
a complaint before the PSC concerning PEI’s law violations,
obtain a hearing on the matter, and notify PEI and its security
provider. Appellants contend, due to the PSC’s failure to fulfill
its legal duties, PEI continued to conduct business with appel-
lants, which caused appellants’ financial losses.
The PSC responded to appellants’ complaint by moving to
dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(1). Following
a hearing, the district court granted the PSC’s motion. The
court found appellants’ suit was barred by sovereign immunity,
because the substance of appellants’ claims fell within the “fail-
ure to suspend or revoke a license” exception to the STCA’s
limited waiver of immunity provided in § 81-8,219(8). The
court further found appellants’ suit was barred by the STCA’s
discretionary function exception provided in § 81-8,219(1).
The court dismissed appellants’ claims with prejudice for
lack of subject matter jurisdiction. Appellants filed an appeal,
and we granted their motion to bypass the Nebraska Court
of Appeals.
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AMEND v. NEBRASKA PUB. SERV. COMM.
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II. ASSIGNMENTS OF ERROR
Appellants assign, restated and reordered, the district court
erred in (1) dismissing appellants’ claims for lack of subject
matter jurisdiction under § 6-1112(b)(1) based on exceptions
to the STCA, (2) concluding that appellants’ claims are barred
by the license revocation exception in § 81-8,219(8), (3) con-
cluding that appellants’ claims are barred by the discretionary
function exception in § 81-8,219(1), and (4) dismissing appel-
lants’ complaint without leave to amend.
III. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.2
[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.3
[3] Whether the allegations made by a plaintiff constitute a
cause of action under the STCA or whether the allegations set
forth claims which are precluded by the exemptions set forth
in the act is a question of law, for which an appellate court has
a duty to reach its conclusions independent of the conclusions
reached by the district court.4
IV. ANALYSIS
We first address whether exceptions to STCA’s limited
waiver of immunity, enumerated in § 81-8,219, are affirma-
tive defenses which the State must plead and prove. We then
2
Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900
N.W.2d 909 (2017).
3
In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
4
See, Bartunek v. State, 266 Neb. 454, 666 N.W.2d 435 (2003); Hammond
v. Nemaha Cty., 7 Neb. Ct. App. 124, 581 N.W.2d 82 (1998).
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AMEND v. NEBRASKA PUB. SERV. COMM.
Cite as 298 Neb. 617
address whether the State has waived its sovereign immunity
with respect to appellants’ claims.
1. Exception to STCA’s Waiver of Immunity
Is Not A ffirmative Defense Which
State Must Plead and Prove
Appellants argue that the district court erred by consider-
ing application of exceptions to the STCA, because the PSC’s
motion to dismiss under § 6-1112(b)(1) did not raise affirm­
ative defenses. Appellants contend that exceptions to the
STCA are affirmative defenses which the State must plead
and prove.
The PSC argues that even if consideration of exceptions to
the STCA was improper, the district court reached the correct
result. Alternatively, the PSC argues that we should revise
Nebraska’s affirmative defense rule.
[4,5] During the pendency of this appeal, we decided Davis
v. State.5 In Davis, we overruled our prior line of cases which
held that exceptions to the limited waivers of sovereign immu-
nity provided by the STCA and the Political Subdivisions
Tort Claims Act (PSTCA)6 are affirmative defenses which
the State must plead and prove. We held that an exception to
the State’s waiver of immunity under the STCA is an issue
that the State may raise for the first time on appeal and that
a court may consider sua sponte.7 We recognized this rule is
more consistent with the settled principle that the lack of sub-
ject matter jurisdiction may be raised at any time by any party
5
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017) (overruling Hall
v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014); Doe v.
Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010); Reimers-Hild v.
State, 274 Neb. 438, 741 N.W.2d 155 (2007); Lawry v. County of Sarpy,
254 Neb. 193, 575 N.W.2d 605 (1998); Sherrod v. State, 251 Neb. 355,
557 N.W.2d 634 (1997); Maresh v. State, 241 Neb. 496, 489 N.W.2d 298
(1992); and D.M. v. State, 23 Neb. Ct. App. 17, 867 N.W.2d 622 (2015)).
6
Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
7
Davis, supra note 5.
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or by the court sua sponte.8 We explained that an appellate
court has an independent duty to decide jurisdictional issues
on appeal, even if the parties have not raised the issue.9 In
light of this duty, a rule which treats exceptions to waivers of
immunity as waivable affirmative defenses places courts in
an unworkable position when a jurisdictional defect is appar-
ent on the face of a plaintiff’s complaint. Consequently, even
where a party has not raised the issue, an appellate court has
the power to determine whether a plaintiff’s allegations, taken
as true, show that a tort claim is facially barred by an STCA
exception under § 81-8,219.
At argument, appellants acknowledged this recent change in
the law and that their prior position that the PSC was required
to plead and prove exceptions to the STCA as affirmative
defenses is foreclosed by our recent decision.
2. State H as Not Waived Sovereign Immunity for
Claims Based on State Agency’s Failure
to Suspend or R evoke License
(a) Conclusions of Law Regarding
Claims Under STCA
[6-8] Under the 11th Amendment,10 a nonconsenting state
is generally immune from suit unless the state has waived
its immunity.11 Neb. Const. art. V, § 22, provides: “The state
may sue and be sued, and the Legislature shall provide by law
in what manner and in what courts suits shall be brought.”
The Legislature has provided limited waivers of the State’s
sovereign immunity through the STCA, subject to statutory
8
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
9
Davis, supra note 5.
10
U.S. Const. amend. XI.
11
Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974);
Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890); Lamb
v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388
(2016).
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exceptions.12 Appellate courts give statutory language its plain
and ordinary meaning and will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.13
[9-11] It is well settled that statutes that purport to waive the
State’s protection of sovereign immunity are strictly construed
in favor of the sovereign and against the waiver.14 In order to
strictly construe against a waiver of sovereign immunity, we
broadly read exemptions from a waiver of sovereign immu-
nity.15 A waiver of sovereign immunity is found only where
stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other
reasonable construction.16
[12] The discretionary function exception under the STCA
and PSTCA is expressed in nearly identical language; thus,
cases construing the state exception apply as well to the PSTCA
exception.17 In analyzing § 13-910(4), the PSTCA equivalent to
the STCA’s “failure to suspend or revoke a license” exception
under § 81-8,219(8), we have stated the language of the excep-
tion is clear and unambiguous.18
[13] An appellate court must determine whether sovereign
immunity lies from the nature of the underlying dispute.19
12
§ 81-8,219; Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d
455 (2012).
13
Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 901 N.W.2d
278 (2017).
14
Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825
N.W.2d 204 (2013).
15
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015).
16
Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
17
Shipley, supra note 12; Lawry, supra note 5, overruled on other grounds,
Davis, supra note 5; Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d
281 (1994).
18
Rohde v. City of Ogallala, 273 Neb. 689, 731 N.W.2d 898 (2007).
19
See, County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995);
Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994).
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AMEND v. NEBRASKA PUB. SERV. COMM.
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Where the facts are undisputed, whether an exception
to immunity under the STCA precludes suit is a question
of law.20
(b) Provisions of STCA Apply to PSC
[14] The PSC is an independent regulatory body created
by the Nebraska Constitution in article IV, § 20.21 The PSC’s
authority to regulate public grain warehouses is purely statu-
tory, in contrast to its plenary authority to regulate common
carriers under Neb. Const. art. IV, § 20.22 Under Neb. Rev.
Stat. § 75-109.01(2) (Reissue 2009 & Cum. Supp. 2014), the
PSC is vested with jurisdiction over grain pursuant to the Grain
Warehouse Act23 and the Grain Dealer Act.24 Chapter 88, article
5, of the Nebraska Revised Statutes grants the PSC broad
regulatory powers, including licensing authority, over all public
grain warehouses.25 A public warehouse cannot be considered
a “common carrier.”26 As a result, the authority of the PSC
to regulate public grain warehouses springs from legislative
enactment, and nothing else.
Section 88-545 grants the PSC authority to enforce the
Grain Warehouse Act and to adopt and promulgate rules and
regulations to aid in the administration of the act. Section
75-903.01 permits the PSC to, upon the filing of a complaint
and after a hearing, suspend or revoke the license of any
grain dealer for failure to comply with the requirements of
20
See D.K. Buskirk & Sons v. State, 252 Neb. 84, 560 N.W.2d 462 (1997).
21
Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015).
22
In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781
(2015); In re Complaint of Fecht, 224 Neb. 752, 401 N.W.2d 470 (1987).
23
See Neb. Rev. Stat. §§ 88-525 to 88-552 (Reissue 2014 & Cum. Supp.
2016).
24
See Neb. Rev. Stat. §§ 75-901 to 75-910 (Reissue 2009 & Cum. Supp.
2016).
25
In re Complaint of Fecht, 216 Neb. 535, 344 N.W.2d 636 (1984).
26
Id.
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the Grain Dealer Act or any rule or regulation adopted and
promulgated pursuant to such act.
[15] The STCA defines “[s]tate agency” to include all “com-
missions of the State of Nebraska . . . the primary function
of which is to act as, and while acting as, instrumentalities or
agencies of the State of Nebraska.”27 The PSC’s broad statu-
tory authority over the business of grain dealing, as well as
its jurisdiction over several other matters of public concern
enumerated in § 75-109.01, demonstrates that the PSC is an
instrumentality of the State and part of the sovereign power
of the State. Further, in at least one other matter, we have
applied the STCA to actions of the PSC.28 Therefore, under the
circumstance of the instant case, the PSC is a state agency for
purposes of the STCA, and as a result, the provisions of the
STCA are applicable here.29
(c) Appellants’ Claims Are Grounded in
License Revocation Exception to
STCA’s Waiver of Immunity
As noted, if a statutory exception to the STCA’s limited
waiver of immunity applies to appellants’ claims, the claims
are barred. Here, we first address whether the “failure to sus-
pend or revoke a license” exception precludes appellants’ suit.
The STCA provides that the State’s waiver of sovereign immu-
nity shall not apply to “[a]ny claim based upon the issuance,
denial, suspension, or revocation of or failure or refusal to
issue, deny, suspend, or revoke any permit, license, certificate,
or order.”30
[16] Section 81-8,219(8) is clear and unambiguous. State
agencies may not be sued under the STCA for claims based
upon the failure to suspend or revoke a license.
27
§ 81-8,210(1).
28
D.K. Buskirk & Sons, supra note 20.
29
See, § 81-8,209; Zimmerman v. Douglas Cty. Hosp., 252 Neb. 583, 563
N.W.2d 349 (1997).
30
§ 81-8,219(8).
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We have referred to the principle that an appellate court must
determine whether sovereign immunity lies from the underly-
ing substance of a dispute as the “gravamen of the complaint
test.”31 Under this test, parties cannot defeat the Legislature’s
intent to preserve exceptions to the State’s sovereign immunity
by attempting to plead around statutory exceptions through a
“semantic recasting of events.”32
Appellants argue, as a result of the PSC’s negligent failure
to perform its obligations in the months leading up to PEI’s
closure, appellants lost a total of over $2.56 million. Appellants
allege the PSC had reviewed PEI’s records and knew PEI was
out of compliance with its legal financial requirements, but
failed to enforce the law to ensure compliance. Specifically,
appellants allege the PSC knew PEI had violated rules and reg-
ulations which required grain dealers to maintain a minimum
net worth of $10,00033 and maintain a working capital ratio of
not less than 1 to 1.34 Appellants argue the PSC’s knowledge of
PEI’s law violations gave rise to a ministerial duty on behalf of
the PSC to institute complaint proceedings against PEI under
291 Neb. Admin. Code, ch. 8, § 003.08, now codified as 291
Neb. Admin. Code, ch. 8, § 003.07 (2016). Section 003.07 of
the Grain Warehouse Rules and Regulations provides:
[I]f the Grain Warehouse Director or other Commission
personnel have reasonable cause to believe that a grain
dealer has violated the statutes or rules of the Commission,
the Director or other Commission personnel will:
003.07A File a complaint before the Commission
against the grain dealer setting forth the alleged violation.
31
Jill B., supra note 16, 297 Neb. at 89, 899 N.W.2d at 263 (citing Stonacek
v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010)).
32
Britton v. City of Crawford, 282 Neb. 374, 386, 803 N.W.2d 508, 518
(2011). Accord Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005)
(quoting United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 87 L. Ed.
2d 38 (1985)).
33
291 Neb. Admin. Code, ch. 8, § 003.03H (2016).
34
§ 003.03I.
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003.07B Obtain a hearing date on the complaint.
003.07C Notify the grain dealer and its security pro-
vider of the complaint and hearing date on the complaint.
Appellants argue that if such complaint proceedings had
occurred, they would not have sustained any losses. They
assert that PEI would have ceased doing business sooner, that
appellants would not have deposited grain with and marketed
grain through PEI, or that PEI would have recapitalized and
would not have failed.
Appellants argue their claims are not grounded in the “fail-
ure to suspend or revoke a license” exception, because the
complaint does not specifically allege the PSC was obligated
to suspend or revoke PEI’s license. Appellants argue the com-
plaint alleges only that the grain warehouse director for the
PSC was required to file a complaint and bring PEI’s law vio-
lations to the attention of the PSC.
Appellants’ arguments are flawed for two reasons. First, the
natural outcome of the instituting of complaint proceedings
under § 003.07 would have been the suspension or revoca-
tion of PEI’s license. Section 003.08, titled “Suspension or
Revocation of License,” provides, upon the filing of a com-
plaint, the PSC may temporarily suspend a grain dealer’s
license without a hearing.35 If, following a hearing, the PSC
finds the allegations in the complaint are true, then it may
revoke the grain dealer’s license. Thus, as the district court
found, the claim that the PSC negligently failed to institute
complaint proceedings against PEI is “inextricably linked” to
a claim that the PSC negligently failed to revoke or suspend
PEI’s license.36
Second, appellants’ complaint allegations are broader than
they argue. Appellants’ causation theory is not based only on
the lack of notice of PEI’s law violations, but that by failing
to enforce financial rules and regulations against PEI, the PSC
35
291 Neb. Admin. Code, ch. 8, § 003.08 (2016).
36
Britton, supra note 32, 282 Neb. at 386, 803 N.W.2d at 518.
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allowed PEI to continue to conduct business while financially
unstable, which ultimately led to PEI’s failure and appellants’
losses. As the PSC argues, appellants’ causation theory cannot
rely on lack of notice alone. The procedure provided under
§ 003.07 provides notice to the PSC, PEI, and PEI’s security
provider, and not grain dealer customers such as appellants.
Based on the complaint allegations, but for the PSC’s lack
of enforcement of regulations during the months prior to
PEI’s closure, there would be no claim. Therefore, reading
§ 81-8,219(8) broadly, as we must, the gravamen of appel-
lants’ allegations of negligence is the PSC’s failure to suspend
or revoke PEI’s license. Appellants’ suit is thus barred under
§ 81-8,219(8).
[17] An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it.37 Because we find that the PSC is immune
from appellants’ claims under the “failure to suspend or revoke
a license” exception, we need not address whether appellants’
claims are barred under the discretionary function exception.
Further, we do not address appellants’ assignment that the
district court erred by dismissing the complaint without leave
to amend, because the lack of subject matter jurisdiction for
appellants’ claims renders amending futile.
V. CONCLUSION
For the foregoing reasons, we conclude that appellants’ neg-
ligence claims are grounded in a state agency’s alleged failure
to suspend or revoke a license and that the Legislature has
preserved sovereign immunity for such conduct. We affirm the
district court’s determination that it lacked subject matter juris-
diction over the case and that the PSC is entitled to judgment
as a matter of law.
A ffirmed.
Wright, J., not participating.
37
Salem Grain Co., supra note 2.