Millard Gutter Co. v. American Family Ins. Co.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/14/2018 08:09 AM CDT
- 466 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
Millard Gutter Company, a corporation
doing business as M illard Roofing and
Gutter, appellant, v. A merican Family
Insurance Company, appellee.
___ N.W.2d ___
Filed July 13, 2018. No. S-17-485.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques-
tion of law, upon which an appellate court reaches a conclusion indepen-
dent of the trial court.
2. Costs: Appeal and Error. The decision of a trial court regarding taxing
of costs is reviewed for an abuse of discretion.
3. Judgments: Words and Phrases. A judicial abuse of discretion exists
when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.
4. Statutes: Appeal and Error. 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.
5. Dismissal and Nonsuit. Generally speaking, under Neb. Rev. Stat.
§§ 25-601 and 25-602 (Reissue 2016), a plaintiff has the right to dismiss
an action without prejudice any time before final submission of the case,
so long as no counterclaim or setoff has been filed by an opposing party.
6. ____. The statutory right to voluntary dismissal under Neb. Rev. Stat.
§§ 25-601 and 25-602 (Reissue 2016) is not a matter of judicial grace or
discretion, but neither is it absolute or without limitation.
7. ____. Under certain circumstances, a district court has the authority to
deny a voluntary dismissal pursuant to Neb. Rev. Stat. §§ 25-601 and
25-602 (Reissue 2016) and may attach conditions to the dismissal where
justice and equitable principles so require.
8. Summary Judgment: Dismissal and Nonsuit. A motion for summary
judgment can be a final submission that will prevent voluntary dismissal
under Neb. Rev. Stat. § 25-601 (Reissue 2016).
- 467 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
9. Dismissal and Nonsuit: Costs. Neb. Rev. Stat. § 25-602 (Reissue 2016)
gives plaintiffs in district court the right to dismiss their action without
prejudice, upon payment of costs, when no counterclaim or setoff has
been filed by the opposing party.
10. Costs. Litigation expenses are not recoverable unless provided for by
statute or a uniform course of procedure.
11. Costs: Legislature. It is within the province of the Legislature to desig-
nate specific items of litigation expense which may be taxed as costs.
12. Trial: Evidence: Costs. The electronic presentation of evidence is not a
taxable cost.
13. Juries: Costs. Under Neb. Rev. Stat. § 33-138(3) (Reissue 2016), the
payment of jurors for service in the district and county courts shall be
made by the county.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed in part, and in part reversed.
Theodore R. Boecker, Jr., of Boecker Law Office, P.C.,
L.L.O., for appellant.
Joel D. Nelson and Joel Bacon, of Keating, O’Gara, Nedved
& Peter, L.L.O., for appellee.
Donald W. Kleine, Douglas County Attorney, and Cortney
M. Wiresinger for amicus curiae Douglas County, Nebraska.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
Stacy, J.
Millard Gutter Company, a corporation doing business
as Millard Roofing and Gutter (Millard Gutter), filed this
civil action against American Family Insurance Company
(American Family) in the Douglas County District Court.
Just prior to jury selection, Millard Gutter filed a voluntary
dismissal without prejudice. The district court held a hearing,
after which it entered a judgment of dismissal and taxed costs
to Millard Gutter, including expenses incurred by American
Family in setting up courtroom technology and expenses
incurred by Douglas County in compensating prospective
- 468 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
jurors. Millard Gutter appeals, arguing that once it filed a vol-
untary dismissal, the district court lacked authority to make
any further rulings. Alternatively, Millard Gutter argues the
district court erred in taxing technology expenses and jury
expenses as costs.
We conclude, on the facts of this case, that Millard Gutter’s
voluntary dismissal had no effect on the district court’s author-
ity to make further rulings. But we find the court erred in
taxing technology expenses and jury expenses as costs. We
therefore reverse that portion of the judgment, and in all other
respects we affirm.
I. BACKGROUND
After a 2013 hailstorm, Millard Gutter performed roof
repairs for approximately 48 homeowners in the Omaha area,
all of whom were insured with American Family. In connec-
tion with those repairs, Millard Gutter took assignments of any
right the homeowners had to insurance proceeds due under
their homeowners’ policies. The validity of the assignments is
not at issue in this appeal.
In 2015, Millard Gutter filed suit, as assignee of the home-
owners, against American Family. Millard Gutter’s complaint
alleged claims for (1) breach of contract, (2) bad faith, (3)
violations of the Unfair Insurance Trade Practices Act,1 and
(4) violations of the Unfair Insurance Claims Settlement
Practices Act.2
American Family’s answer admitted that it issued insurance
policies to the Omaha homeowners and had an obligation to
pay for covered losses caused by the hailstorm, but denied
that Millard Gutter had valid assignments. American Family
raised several affirmative defenses, including that it was enti-
tled to a credit or setoff for payments previously made to the
homeowners under the insurance policies. American Family’s
1
Neb. Rev. Stat. §§ 44-1521 to 44-1535 (Reissue 2010).
2
Neb. Rev. Stat. §§ 44-1536 to 44-1544 (Reissue 2010 & Cum. Supp.
2016).
- 469 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
answer also alleged that Millard Gutter’s claims were frivo-
lous and requested an award of costs and attorney fees under
Neb. Rev. Stat. § 25-824 (Reissue 2016).
1. A merican Family Moves for
Partial Summary Judgment
American Family moved for partial summary judgment on
three of Millard Gutter’s four claims for relief. The court
granted the motion and entered summary judgment in favor
of American Family on the claims alleging (1) bad faith, (2)
violations of the Unfair Insurance Trade Practices Act, and (3)
violations of the Unfair Insurance Claims Settlement Practices
Act. Neither party asked the court to direct the entry of a final
judgment under Neb. Rev. Stat. § 25-1315 (Reissue 2016), and
the court did not do so.
The only claims to survive summary judgment were Millard
Gutter’s claims for breach of contract, which were set for trial
on January 23, 2017. The parties were given a special jury set-
ting to minimize the risk that trial would need to be continued
to accommodate other cases on the court’s docket. Trial was
expected to last 5 days.
2. Millard Gutter Files
Voluntary Dismissal
During its final trial preparations, Millard Gutter discovered
“underbilling issues” on some of the roof repairs, and decided
to dismiss its breach of contract claims without prejudice
rather than proceed to trial; it planned to refile the action later
and seek additional damages. Thus, on the morning of January
23, 2017, just minutes before trial was set to begin, Millard
Gutter filed a voluntary dismissal without prejudice pursuant
to Neb. Rev. Stat. § 25-601 (Reissue 2016).
3. Court Holds Hearing on Voluntary
Dismissal and Costs
Immediately after learning Millard Gutter had filed a volun-
tary dismissal, the district court held a hearing on the record
- 470 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
to discuss the effect of the filing and to address taxable costs.
When asked what effect the voluntary dismissal should have
on the claims previously resolved on summary judgment,
Millard Gutter replied, “Our position is all we’re voluntarily
dismissing without prejudice are the claims that have not
already been dismissed, so the remaining claims are what we
are dismissing.”
When addressing costs, the hearing focused on the expenses
incurred by American Family in setting up courtroom tech-
nology for use during the scheduled trial and the expenses
incurred by Douglas County to bring in prospective jurors.
(a) Courtroom Technology Expenses
American Family hired a court reporting firm to equip the
courtroom with electronics and display screens for use dur-
ing the 5-day trial. It was undisputed that the firm spent sev-
eral hours over 2 days setting up the technology at a cost of
$1,650. American Family asked that this expense be taxed to
Millard Gutter. Millard Gutter stipulated to the reasonableness
of the charges, but took the position that courtroom technol-
ogy expenses were not properly taxable as costs. American
Family made no request for other costs or attorney fees
and did not ask for a determination of frivolousness under
§ 25-824.
(b) Jury Expenses
With the parties’ knowledge, the court summoned 40 pro-
spective jurors, rather than the usual 25, out of concern that
potential juror conflicts might exist with American Family.
These prospective jurors were called exclusively for this case
and were waiting at the courthouse when the voluntary dis-
missal was filed.
During the hearing on costs, the court remarked, “It cost the
taxpayers approximately $2,000 to have 40 jurors ready to go
this morning, and that includes the . . . $35 fee for each juror
and then approximately $15 in mileage for each juror . . . .”
The court suggested an evidentiary hearing be held later in the
- 471 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
day to permit the clerk of the Douglas County District Court to
testify and “get it down to the penny.” Millard Gutter declined
an evidentiary hearing on the issue and stipulated that juror
fees and mileage totaled $2,000, but argued such expenses
were not properly taxable as costs.
4. Order of Dismissal and
Taxation of Costs
The court announced its ruling from the bench. It held
the prior summary judgments in favor of American Family
would “remain in place” on the claims of bad faith, violations
of the Unfair Insurance Trade Practices Act, and violations
of the Unfair Insurance Claims Settlement Practices Act. It
further held it would dismiss “the remaining breach of con-
tract” claims without prejudice, pursuant to the voluntary
dismissal. The court taxed costs to Millard Gutter, including
$1,650 for technology expenses incurred by American Family
and $2,000 “to be paid to the Douglas County District Court
clerk’s office for the 40 jurors that were specifically assigned
to this case.”
Subsequently, the court entered a judgment of dismissal,
styled as an order, consistent with its ruling from the bench.
In addition to taxing technology costs and jury costs, the judg-
ment taxed “all court costs” to Millard Gutter. The judgment
also imposed certain procedural conditions in the event Millard
Gutter refiled the action against American Family, but because
neither party has assigned error to such conditions, we do not
address them further.
5. Millard Gutter’s Motion
to A lter or A mend
Millard Gutter filed a timely motion to alter or amend. It
argued the district court had no authority to rule on any issue
after the voluntary dismissal was filed. In the alternative,
Millard Gutter argued that neither jury expenses nor technol-
ogy expenses were properly taxable as costs. The district court
overruled the motion to alter or amend in all respects. Millard
- 472 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
Gutter timely appealed, and we moved the appeal to our
docket on our own motion.3
II. ASSIGNMENTS OF ERROR
Millard Gutter assigns, restated and consolidated, that the
district court erred in (1) making any rulings after the volun-
tary dismissal was filed, (2) determining technology expenses
and jury expenses were taxable costs, and (3) overruling the
motion to alter or amend.
III. STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law, upon
which an appellate court reaches a conclusion independent of
the trial court.4
[2,3] The decision of a trial court regarding taxing of costs
is reviewed for an abuse of discretion.5 A judicial abuse of
discretion exists when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying just results in matters submitted
for disposition.6
[4] 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.7
IV. ANALYSIS
1. Voluntary Dismissal
Millard Gutter argues that once the voluntary dismissal
without prejudice was filed, it had the effect of withdrawing
3
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
4
Klingelhoefer v. Monif, 286 Neb. 675, 839 N.W.2d 247 (2013); Kansas
Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002).
5
O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).
6
Id.
7
Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551
(2018).
- 473 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
the entire case from the court’s consideration. According to
Millard Gutter, the voluntary dismissal “automatically ter-
minated the jurisdiction” of the district court8 and the court
thereafter lacked authority to make any further rulings regard-
ing the case. We disagree.
The ability of a plaintiff to voluntarily dismiss his or her
claim without prejudice is codified in § 25-601 and Neb.
Rev. Stat. § 25-602 (Reissue 2016).9 Section 25-601 provides
that “[a]n action may be dismissed without prejudice to a
future action (1) by the plaintiff, before the final submis-
sion of the case to the jury, or to the court where the trial
is by the court . . . .” A related statute, § 25-602, applies to
cases pending before a district court or appellate court. At the
time Millard Gutter filed its voluntary dismissal, § 25-602
provided:
The plaintiff, in any case pending in the district or
Supreme Court of the state, shall, when no counterclaim
or setoff has been filed by the opposite party, have the
right in the vacation of any of said courts to dismiss his
said action without prejudice, upon payment of costs,
which dismissal shall be, by the clerk of any of said
courts, entered upon the journal and take effect from and
after the date thereof.
We note that the Legislature recently amended § 25-602 pri-
marily to update terminology,10 but those amendments do not
affect our analysis in this case.
[5,6] Generally speaking, under §§ 25-601 and 25-602,
a plaintiff has the right to dismiss an action without preju-
dice any time before final submission of the case, so long
as no counterclaim or setoff has been filed by an opposing
8
Brief for appellant at 6.
9
See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894
(1999).
10
See 2018 Neb. Laws, L.B. 193, § 9.
- 474 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
party.11 We have stated that the statutory right to voluntary
dismissal under §§ 25-601 and 25-602 is not a matter of
judicial grace or discretion,12 but neither is it absolute or
without limitation.13
[7] Under certain circumstances,14 a district court has the
authority to deny a voluntary dismissal pursuant to §§ 25-601
and 25-602 and may attach conditions to the dismissal where
justice and equitable principles so require.15 And we have repeat-
edly stated that despite a plaintiff’s statutory right to voluntary
dismissal, trial courts have discretion to protect the “‘“rights
which have accrued to [a] defendant”’” in the action “‘“such
as the preservation of a counterclaim, the restitution of property
of which he has been deprived, the recovery of his costs, and
the like.”’”16
Here, we apply the plain language of §§ 25-601 and 25-602
and conclude that at the time Millard Gutter filed its volun-
tary dismissal, it had no such right under either statute. As
11
Kansas Bankers Surety Co., supra note 4. See, also, Neb. Rev. Stat.
§ 25-603 (Reissue 2016) (defendant in “any case” has right to proceed to
trial on counterclaim or setoff “although the plaintiff may have dismissed
the action or failed to appear”).
12
Holste, supra note 9; Schroeder v. Schroeder, 223 Neb. 684, 392 N.W.2d
787 (1986); Dawson v. Papio Nat. Resources Dist., 210 Neb. 100, 313
N.W.2d 242 (1981), modified on denial of rehearing 210 Neb. 612, 316
N.W.2d 311 (1982).
13
See, Holste, supra note 9; Horton v. State, 63 Neb. 34, 88 N.W. 146
(1901).
14
See Holste, supra note 9 (court can deny party’s voluntary dismissal
where party is necessary party to another claim in same action). See, also,
Vose v. Müller, 48 Neb. 602, 67 N.W. 598 (1896) (explaining court can
deny plaintiff’s voluntary dismissal in replevin action if plaintiff obtained
possession of property through prejudgment order of delivery).
15
See, Holste, supra note 9; Schroeder, supra note 12; Dawson, supra note
12; Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1951); Blue River
Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 (1928).
16
Kansas Bankers Surety Co., supra note 4, 263 Neb. at 978, 644 N.W.2d at
870, quoting Feight, supra note 15. Accord Dawson, supra note 12.
- 475 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
we explain below, there was a final submission that precluded
voluntary dismissal under § 25-601, and a setoff had been filed
that precluded voluntary dismissal under § 25-602.
(a) Final Submission Under § 25-601
Section 25-601 provides that a plaintiff may dismiss an
action without prejudice any time before final submission to
the jury or the court. Millard Gutter claims that its voluntary
dismissal was filed before final submission for purposes of
§ 25-601, because the breach of contract claim had not yet
been submitted to the jury. But Millard Gutter’s argument
ignores the fact that at the time it filed its dismissal, summary
judgment had been entered on three of its four claims.
We have not squarely addressed whether a summary judg-
ment motion can constitute a final submission for purposes of
§ 25-601. But our case law demonstrates that a final submis-
sion can occur on a motion.
In a bench trial, we have treated a motion for directed
verdict at the close of the plaintiff’s case as a final submis-
sion preventing voluntary dismissal under § 25-601.17 And in
a jury trial, we have treated a defendant’s motion for directed
verdict as a final submission under § 25-601 once the par-
ties argued their positions on the motion.18 In doing so, we
reasoned that a motion for directed verdict is a final sub-
mission that limits the right of voluntary dismissal, because
“the court is called upon to determine as a matter of law
whether there are any issues arising from the facts submit-
ted which present a jury question.”19 This same rationale
applies to motions for summary judgment. We have also
explained that if the court overrules the motion for directed
verdict, there is no longer a final submission and the plaintiff
17
See Gydesen v. Gydesen, 188 Neb. 538, 198 N.W.2d 67 (1972).
18
See, Collection Specialists v. Veseley, 238 Neb. 181, 469 N.W.2d 549
(1991); Miller v. Harris, 195 Neb. 75, 236 N.W.2d 828 (1975); Fronk v.
Evans City Steam Laundry Co., 70 Neb. 75, 96 N.W. 1053 (1903).
19
Miller, supra note 18, 195 Neb. at 78, 236 N.W.2d at 830.
- 476 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
regains the right to dismiss the action if he or she chooses,
because at that point, “fact issues remain to be determined
by the jury, and those issues have not yet been submitted to
the jury.”20
To date, our only case addressing summary judgment and
§ 25-601 is Kansas Bankers Surety Co. v. Halford.21 In that
case, the defendant filed a motion for summary judgment and
submitted a brief to the court in support. On the day the plain-
tiff’s brief was due, the plaintiff instead filed a dismissal with-
out prejudice, which the court granted that same day. On those
facts, we concluded the plaintiff retained the statutory right to
voluntary dismissal without prejudice, because the defendant
“had not filed a setoff or counterclaim” and “[t]here was no
relief requested by [the plaintiff] that was pending at the time
of [the] dismissal other than [the defendant’s] motion for sum-
mary judgment . . . .”22
Our statement regarding summary judgment could have
been more precise, but we take this opportunity to clarify that
we were not suggesting such a motion could not be a final
submission under § 25-601. Rather, we were emphasizing that
a final submission does not occur until argument is complete
or has been waived; and where argument is allowed by brief,
final submission will not occur until the briefing is complete
or until the time for submitting briefs has expired.23 Because
the voluntary dismissal in Kansas Bankers Surety Co. was
filed before the time for briefing had expired, the summary
judgment motion was not a final submission for purposes of
§ 25-601.
[8] We now hold, as we have with motions for directed
verdict, that a motion for summary judgment can be a final
20
Id.
21
Kansas Bankers Surety Co., supra note 4.
22
Id. at 979, 644 N.W.2d at 871.
23
See Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 259 N.W.
367 (1935).
- 477 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
submission that will prevent voluntary dismissal under
§ 25-601. In this case, the district court granted summary
judgment on three of Millard Gutter’s four claims; thus, there
was a final submission regarding some, but not all, of Millard
Gutter’s claims. In this respect, we emphasize that a final sub-
mission should not be confused with a final judgment.
Here, the district court did not direct the entry of final
judgment pursuant to § 25-1315(1), so its ruling on the sum-
mary judgment motions was the product of a final submis-
sion, but was not a final judgment for purposes of appeal.24
Consequently, the district court was free to revise or vacate
the summary judgments at any time prior to entry of judgment
adjudicating all of the claims and rights of the parties.25
Had the court here revised or set aside the summary judg-
ments, it may have affected our final submission determina-
tion under § 25-601. But the court’s judgment in this case did
neither. To the contrary, the district court’s judgment not only
incorporated by express reference its prior summary judgment
rulings in favor of American Family, but also excepted those
prior rulings from the dismissal without prejudice.
Because the summary judgments in favor of American
Family were the product of final submissions that were not
revised or set aside before Millard Gutter’s voluntary dismissal
was filed, Millard Gutter had no statutory right under § 25-601
to voluntarily dismiss these claims without prejudice.26
(b) Setoff Under § 25-602
[9] Millard Gutter’s right to voluntary dismissal of its
remaining breach of contract claims was affected by § 25-602.
As previously stated, that statute gives plaintiffs in district
court the right to dismiss their action without prejudice, upon
24
See, John P. Lenich, There’s No Escape: The Plaintiff ’s Right to Dismiss
After the Submission of a Motion for Summary Judgment or a Motion to
Dismiss in Nebraska, 1 Neb. L. Rev. Bull. 31 (2009).
25
See § 25-1315(1).
26
Accord Lenich, supra note 24.
- 478 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
payment of costs, when no counterclaim or setoff has been
filed by the opposing party.
In this case, the answer filed by American Family included
allegations that it was entitled to a setoff for payments previ-
ously made to the homeowners in the event it was determined
that additional sums were owed under the insurance contracts.
Consequently, to the extent Millard Gutter sought voluntary
dismissal of its remaining breach of contract claims, it had
no right to do so under § 25-602, because a setoff related to
those claims was filed by American Family and American
Family was ready to proceed to trial on the setoffs.27 Of
course, in response to Millard Gutter’s filing, the court had
discretion to grant a dismissal without prejudice,28 which it
ultimately did as to the breach of contract claims but not as
to the claims on which summary judgment had been granted
as a matter of law.
Given the procedural posture of this case at the time Millard
Gutter filed its dismissal, it had no statutory right to voluntary
dismissal under either § 25-601 or § 25-602. Consequently, the
district court’s authority to make further rulings in the case was
unaffected by the filing, and Millard Gutter’s first assignment
of error is without merit.
2. Taxable Costs
The district court’s judgment taxed “all court costs” to
Millard Gutter and, in addition, ordered it to pay $1,650
for technology expenses incurred by American Family and
$2,000 to “reimburse the tax payers of Douglas County” for
the expenses associated with bringing in 40 jurors for trial.
On appeal, Millard Gutter argues that neither the technology
expenses nor the expenses of securing jurors are properly taxed
as costs.
[10,11] Since as early as 1922, this court has recognized that
litigation expenses are not recoverable costs unless provided
27
See § 25-603.
28
See, e.g., Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948).
- 479 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
for by statute or a uniform course of procedure.29 And while
our cases have not always been consistent in their treatment of
taxable costs, we recently recommitted to the basic principle
that “it is within the province of the Legislature to designate
specific items of litigation expense which may be taxed as
costs.”30 To that end, we have expressly disapproved of our
prior cases which permitted the recovery of litigation expenses
without an explicit basis in statute or uniform procedure.31
In an action for the recovery of money, taxable costs upon
final judgment are governed by Neb. Rev. Stat. §§ 25-1708 and
25-1710 (Reissue 2016). Section 25-1708 governs costs upon
judgment in favor of a plaintiff, and § 25-1710 governs costs
upon judgment in favor of a defendant. Both statutes allow for
the recovery of “costs,” but neither specifies which costs are
recoverable. Under such circumstances, we have held a party
may recover “the costs of the filing of the action, and any
other expenses that are specifically delineated as taxable costs
by statute.”32
Here, American Family obtained a judgment in its favor
on three of the four claims asserted by Millard Gutter. To the
extent the judgment here directed Millard Gutter to pay “all
court costs,” Millard Gutter assigns no error. Our analysis is
limited to whether a statute or uniform course of procedure
authorized the district court to tax as costs the expenses associ-
ated with courtroom technology or securing jurors. We find no
such authorization.
(a) Technology Expenses
American Family hired a company to equip the court-
room with electronics and display screens for use during the
29
See, McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d 642
(2015), citing Toop v. Palmer, 108 Neb. 850, 189 N.W. 394 (1922).
30
City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 235, 795
N.W.2d 256, 260 (2011).
31
McGill, supra note 29.
32
Id. at 95, 864 N.W.2d at 661.
- 480 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
scheduled trial. The expense for this service was stipulated to
be $1,650. There is no dispute that the charges were fair and
reasonable, and no claim that the presentation of evidence
would not have been enhanced by the use of such technology.
The question presented is whether litigation expenses associ-
ated with courtroom technology are properly taxable as costs.
[12] In City of Falls City v. Nebraska Mun. Power Pool,33
this court specifically held that the electronic presentation of
evidence is not a taxable cost, noting that no Nebraska statute
or uniform course of procedure authorizes it as such. We are
aware that federal courts have allowed taxation of costs asso-
ciated with the electronic display of trial exhibits as a form
of “exemplification” under 28 U.S.C. § 1920 (2012),34 but
Nebraska has no corollary to this federal statute. Therefore, we
must find the district court abused its discretion in taxing these
technology expenses as costs.
(b) Jury Expenses
The parties stipulated that the cost of bringing in 40 pro-
spective jurors for the trial in this case was $2,000. The
district court found that “under the circumstances it is fair,
just, and equitable to order [Millard Gutter] to pay such costs
and reimburse the tax payers of Douglas County, Nebraska.”
Accordingly, as part of the judgment, Millard Gutter was
directed to pay $2,000 to the clerk of the Douglas County
District Court.
[13] Under Nebraska law, the “[p]ayment of jurors for
service in the district and county courts shall be made by the
county.”35 Each juror is statutorily entitled to receive $35 for
each day “employed in the discharge of his or her duties,”
plus mileage at the statutory rate “for each mile necessarily
33
City of Falls City, supra note 30.
34
See id. See, also, e.g., Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748
(8th Cir. 2006).
35
Neb. Rev. Stat. § 33-138(3) (Reissue 2016).
- 481 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
traveled.”36 The statute also permits jurors to voluntarily waive
such payment.37
Millard Gutter argues that the expense of bringing in jurors
is a governmental cost and not a cost properly taxable to the
parties. Millard Gutter notes that in criminal cases, we have
expressly held it is error to tax such costs38 and further argues
there is no statute or uniform procedure that permits a court to
tax jury expenses as costs in a civil case.
American Family counters that juror compensation may
properly be taxed as costs, and relies on our reasoning in
Frazer v. Myers39 as support for this proposition. In Frazer, the
jury returned a verdict for the plaintiff in a breach of contract
case. The court’s judgment directed each party to pay their own
costs, but, in addition, taxed to the defendant a $5 “jury fee”
and a $1 “trial fee.”40 The defendant asked that these costs be
“retaxed” against the plaintiff, and the trial court refused.41 On
appeal, we found this was error, reasoning:
Plaintiff voluntarily went into court and demanded a trial
and judgment upon his cause of action. Defendant by the
process of the court was compelled to appear. Plaintiff
could not obtain his judgment without a trial. He could
not have a trial without a jury, unless the intervention
of a jury was waived, not only by himself, but by the
defendant. No cases in point are cited, and we have
36
§ 33-138(1).
37
§ 33-138(4).
38
See, State ex rel. City of St. Paul v. Rutten, 177 Neb. 633, 130 N.W.2d
558 (1964) (error to tax convicted defendant with payment of juror
compensation, meals, and mileage); State v. Jungclaus, 176 Neb. 641, 126
N.W.2d 858 (1964) (error to tax convicted defendant with paying for juror
meals, lodging, and mileage because no statute authorized taxing such
items as costs).
39
Frazer v. Myers, 95 Neb. 194, 145 N.W. 357 (1914).
40
Id. at 197, 145 N.W. at 358.
41
Id.
- 482 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
neither the time nor inclination to look for them, but
as a case of first impression it appears to us quite clear
that these two items were costs made by plaintiff, and,
under the judgment of the court, that each party should
pay his own costs, they should have been taxed against
the plaintiff.42
The reasoning in Frazer is not compelling support for the
proposition that jury expenses are properly taxable as costs.
More importantly, Frazer is contrary to our recent reaffir-
mation of the principle that “it is within the province of the
Legislature to designate specific items of litigation expense
which may be taxed as costs”43 and our express disapproval of
prior cases that permitted recovery of litigation expenses with-
out an explicit basis in statute or uniform procedure.44
Douglas County filed an amicus curiae brief, directing our
attention to Neb. Rev. Stat. § 25-1711 (Reissue 2016). That
statute applies in equity actions, and permits an appellate court,
in its discretion, to “tax as costs the actual fees and expenses
necessitated by such jury [where a jury is demanded in the
district court] if the court finds that the appeal was taken
or the original filing was made for a frivolous or capricious
reason.”45 Douglas County concedes this statute does not apply
to the present case, but suggests the statute shows that the
Legislature has, under certain circumstances, defined taxable
costs to include jury expenses.
Section 25-1711 illustrates that when the Legislature wants
to make jury fees and expenses a taxable cost, it knows how
to do so. To date, it has authorized only appellate courts to
tax jury fees and expenses, and then only in very limited
42
Id.
43
City of Falls City, supra note 30, 281 Neb. at 235, 795 N.W.2d at 260.
44
See McGill, supra note 29.
45
See Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb. 283, 329
N.W.2d 97 (1983) (reiterating § 25-1711 applies to equitable actions—not
those involving recovery of money).
- 483 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
circumstances. Because § 25-1711 does not apply—either fac-
tually or procedurally—to this case, it provides no authority for
taxing Millard Gutter with jury fees and mileage.
Finally, we are urged by American Family and Douglas
County to conclude that even if no other statute authorizes a
district court to tax jury expenses as costs, it is permissible to
assess jury costs against a party who brings or defends a civil
action that alleges a claim or defense which a court determines
is frivolous or made in bad faith under § 25-824. We express no
opinion on whether jury costs can be assessed under § 25-824,
because there was no finding of frivolousness in this case that
would bring this action within the purview of that statute. We
also express no opinion on whether there are any circumstances
under which a district court, as a court of general jurisdiction
having the inherent power to do all things necessary for the
proper administration of justice and equity within the scope
of its jurisdiction,46 might impose upon a party the expense
incurred by a county to provide a jury panel in a civil case.
Although on appeal American Family alludes to this inherent
authority, the district court based its decision on its authority to
tax costs and not upon its inherent power.
Nebraska law mandates that jurors shall be paid “by the
county”47 for their service in district court. The parties direct us
to no other statute that authorizes a trial court to tax, as costs
in a civil action, the sums paid to pay jurors for their service
and mileage. We share the trial court’s frustration that Millard
Gutter waited until 40 prospective jurors were present at the
courthouse to dismiss its remaining claims, and we do not
condone the needless waste of taxpayer resources that resulted
from this tactic. But we are also mindful that shifting the
expense of juror fees and mileage from the government to the
parties under certain circumstances could have a chilling effect
46
See Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762, 336 N.W.2d
312 (1983).
47
§ 33-138(3).
- 484 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.
Cite as 300 Neb. 466
on exercising the constitutional right to a jury trial.48 Questions
of whether, or under what circumstances, the governmental
expense of juror fees and mileage should be taxed as costs in a
civil action are matters of public policy in the province of the
Legislature.49 In the absence of a statute or uniform course of
procedure that authorized the district court to tax jury expenses
as costs, we must find the district court abused its discretion in
awarding these costs.
3. Motion to A lter or
A mend Judgment
Millard Gutter assigns the trial court erred in denying its
motion to alter or amend the order taxing costs. Given our
resolution of this appeal, it is unnecessary to address this
assignment.50
V. CONCLUSION
At the time Millard Gutter filed its dismissal, it had no
statutory right to voluntary dismissal under either § 25-601
or § 25-602. For that reason, the district court’s authority to
make further rulings in the case was unaffected by that fil-
ing. However, because there is no statute or uniform course
of procedure authorizing the district court to tax as costs the
expenses associated with courtroom technology or juror fees
and mileage, we must find the district court abused its discre-
tion in taxing such expenses as costs. We therefore reverse the
judgment of the district court to the extent it taxed such costs,
and in all other respects, we affirm.
A ffirmed in part, and in part reversed.
Wright and K elch, JJ., not participating.
48
See Neb. Const. art. I, § 6.
49
See City of Falls City, supra note 30.
50
In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018) (appellate
court not obligated to engage in analysis unnecessary to adjudicate case
and controversy before it).