In re Interest of A.A.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2021 12:12 AM CDT
- 749 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749In re Interest of A.A. et al., children
under 18 years of age.
State of Nebraska, appellee, v.
Joshua C., appellant.
___ N.W.2d ___
Filed March 26, 2021. No. S-20-009.
supplemental opinion on issue of
motion for attorney fees
1. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
2. Constitutional Law: Actions: Legislature: Immunity: Waiver. Neb.
Const. art. V, § 22, providing that the State may sue and be sued and that
the Legislature shall provide by law in what manner and in what courts
suits shall be brought, permits the State to lay its sovereignty aside
and consent to be sued on such terms and conditions as the Legislature
may prescribe.
3. Actions: Attorney Fees: Immunity: Waiver. Neb. Rev. Stat.
§ 25-1803(1) (Reissue 2016) acts as a limited waiver of the State’s sov-
ereign immunity in civil actions brought by the State to the extent that
fees and expenses shall be awarded except when the court finds that the
position of the State was substantially justified.
4. Attorney Fees. The existence of substantial justification depends upon
the circumstances of each case.
5. ____. Substantial justification exists where the position has a reasonable
basis both in law and in fact.
6. Attorney Fees: Appeal and Error. The mere fact that the State has not
been successful in an appellate court does not mean its position was not
substantially justified.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 7497. Statutes: Immunity: Waiver. Statutes that purport to waive the protec-
tion of sovereign immunity of the State or its subdivisions are strictly
construed in favor of the sovereign and against the waiver.
8. ____: ____: ____. 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.
9. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
10. Actions: Attorney Fees: Immunity: Waiver. Neb. Rev. Stat. § 25-1803(Reissue 2016) does not waive sovereign immunity regarding attorney
fees and expenses incurred to defend against positions taken against
particular parties on particular motions within an action that was, as a
whole, substantially justified.
Appeal from the Separate Juvenile Court of Lancaster
County: Reggie L. Ryder, Judge. Motion for attorney fees
denied.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Douglas J. Peterson, Attorney General, C.J. Roberts, Special
Assistant Attorney General, and Patrick Condon, Lancaster
County Attorney, and Haley N. Messerschmidt for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
This opinion addresses a motion for attorney fees and
expenses against the State by the intervenor in a juvenile pro-
ceeding who was successful in his appeal from a final order
during the pendency of the case. We find that under Neb.
Rev. Stat. § 25-1804(1) (Reissue 2016), the State’s position in
bringing and maintaining the underlying petition for adjudica-
tion was substantially justified. Therefore, the State’s limited
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749waiver of sovereign immunity set forth in § 25-1804(1) does
not apply to the fees and expenses sought.
BACKGROUND
The facts of this case are fully set forth in our opinion, In
re Interest of A.A. et al., 1 which addressed two consolidated
appeals from final orders in ongoing proceedings under a peti-
tion to adjudicate a child, B.C., due to the fault or habits of
the mother. Joshua C., the legal father of B.C., appealed (1)
the denial of his motion for temporary physical placement
of B.C., who was removed from the mother’s home, and (2)
a subsequent adjudication order due to the fault or habits of
the mother.
B.C. lived with the mother and not with Joshua. B.C. was
removed from the mother’s home pending adjudication, upon
a finding that remaining in the mother’s home would be con-
trary to B.C.’s health, safety, and welfare and would not be in
B.C.’s best interests. Joshua, who had an established parental
relationship with B.C., intervened in the juvenile proceedings.
However, without the State’s making any allegations of unfit-
ness regarding Joshua, the court denied Joshua’s motion for
temporary placement on the grounds that Joshua was unfit. The
first appeal was from that order.
While Joshua’s first appeal was pending, the mother pled
no contest to the petition for adjudication. The district court
overruled Joshua’s objection to the hearing on adjudication in
which Joshua argued that his pending appeal from the denial
of his motion for placement deprived the district court of
jurisdiction.
With regard to the first appeal, we held in In re Interest
of A.A. et al. that Joshua was deprived of due process when
the court refused to recognize his parental preference over
the State to B.C.’s custody by finding him unfit without any
formal allegation placing him on notice that he would have
1
In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749to defend against an attempt by the State to prove he had lost
the presumption of parental preference. In the second appeal
addressed in In re Interest of A.A. et al., we found no merit to
Joshua’s contention that the pendency of Joshua’s first appeal
had divested the district court of jurisdiction to accept the
mother’s no contest plea to the petition to adjudicate B.C. due
to the mother’s fault or habits.
ANALYSIS
[1] Pursuant to Neb. Rev. Stat. § 25-1803(1) (Reissue 2016)
and Neb. Ct. R. App. P. § 2-109(F) (rev. 2014), Joshua seeks
reimbursement for attorney fees and expenses incurred in the
appeal from the denial of his motion for temporary placement.
Attorney fees and expenses may be recovered only where
provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attor-
ney fees. 2 Joshua does not claim a uniform course of procedure
provides for attorney fees and expenses in this case.
[2,3] Neb. Const. art. V, § 22, providing that the State may
sue and be sued and that the Legislature shall provide by law
in what manner and in what courts suits shall be brought,
permits the State to lay its sovereignty aside and consent to
be sued on such terms and conditions as the Legislature may
prescribe. Section 25-1803(1) acts as a limited waiver of the
State’s sovereign immunity in civil actions brought by the State
to the extent that fees and expenses shall be awarded except
when the court finds that the position of the State was substan-
tially justified. 3
Section 25-1803 provides in full:
(1) Unless otherwise provided by law, the court hav-
ing jurisdiction over a civil action brought by the state
or an action for judicial review brought against the state
2
Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
3
In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749pursuant to the Administrative Procedure Act shall award
fees and other expenses to the prevailing party unless the
prevailing party is the state, except that the court shall not
award fees and expenses if it finds that the position of the
state was substantially justified.
(2) The court, in its discretion, may reduce the amount
to be awarded pursuant to this section, or deny an award,
to the extent that the prevailing party, during the course
of the proceedings engaged in conduct which unduly and
unreasonably protracted the final resolution of the matter
in controversy or when an overriding public interest exists
which would make an award unjust.
Section 25-1804(1) (Reissue 2016) describes the application
for attorney fees pursuant to § 25-1803 as follows:
A party seeking an award for fees and other expenses
pursuant to sections 25-1802 to 25-1807 shall, not later
than thirty days after the entry of the final judgment in
the action, submit to the court an application which pro-
vides evidence of eligibility for an award pursuant to such
sections and which specifies the amount sought. If the
amount sought includes an attorney’s fee or the fee for
an expert witness, the application shall include an item-
ized statement for each such fee indicating the actual time
expended in service to the applicant and the rate at which
the fees were computed.
Neb. Rev. Stat. § 25-1805 (Reissue 2016) provides that
“[f]ees and expenses awarded pursuant to sections 25-1802
to 25-1807 may be ordered in addition to any compensation
awarded in a judgment.” Neb. Rev. Stat. § 25-1809 (Reissue
2016) provides that the fees and expenses that have been
awarded against a state agency, board, commission, or consti-
tutional office or the Legislature shall be paid out of the Legal
Services Fund.
The parties dispute whether the juvenile proceedings were
a civil action, whether the juvenile proceedings were brought
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749by the State, and whether the State was substantially justified
in its position. We conclude that Joshua’s motion for attorney
fees should be denied, because the State was substantially jus-
tified in commencing the juvenile proceedings for B.C. under
the petition making allegations against the mother.
[4-6] The existence of substantial justification depends
upon the circumstances of each case. 4 Such justification exists
where the position has a reasonable basis both in law and in
fact. 5 The mere fact that the State has not been successful
in this court does not mean its position was not substantially
justified. 6
[7-9] It is well settled that statutes that purport to waive
the protection of sovereign immunity of the State or its sub-
divisions are strictly construed in favor of the sovereign and
against the waiver. 7 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. 8 Statutory language is to be
given its plain and ordinary meaning, and an appellate court
will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous. 9
Section 25-1803(2) refers to the “final resolution of the
matter in controversy,” and § 25-1804(1) refers to the award’s
being “after the entry of the final judgment in the action.”
Joshua’s appeals were from final orders, not from the final
judgment in the juvenile proceedings. More to the point,
under our mandate of strict construction, the references in the
relevant statutes to the final resolution of the matter in the
4
Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).
5
Id.6
Id.7
Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020).
8
Id.9
Id.- 755 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749controversy after the entry of the final judgment indicate a lim-
ited waiver for an award of attorney fees and expenses against
the State only where the underlying action brought by the State
was not itself substantially justified.
This reading is also supported by the reference in
§ 25-1803(1) to “the position of the state” (emphasis sup-
plied). The U.S. Supreme Court, in Commissioner, INS v.
Jean, 10 interpreted the meaning of “substantially justified” in
a similar federal statute and relied on, among other things, a
reference to the “‘position of the United States’” in the sin-
gular before concluding that “[w]hile the parties’ postures on
individual matters may be more or less justified, [the statute]
favors treating a case as an inclusive whole, rather than as
atomized line-items.” Other federal courts have understood
Jean to require courts to assess the substantial justification of
the government’s position in a case as a whole rather than on
individual issues. 11
[10] Section 25-1803 does not waive sovereign immu-
nity regarding attorney fees and expenses incurred to defend
against positions taken against particular parties on particular
motions within an action that was, as a whole, substantially
justified. We find that the State’s decision to bring a petition
10
Commissioner, INS v. Jean, 496 U.S. 154, 161-62, 110 S. Ct. 2316, 110 L.
Ed. 2d 134 (1990) (interpreting 28 U.S.C. § 2412(d)(1)(A) (1988)).
11
See, e.g., Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th
Cir. 1993) (“we conclude that when determining whether the government’s
position in a case is substantially justified, we look beyond the issue
on which the petitioner prevailed to determine, from the totality of
circumstances, whether the government acted reasonably in causing the
litigation or in taking a stance during the litigation”); Utu Utu Gwaitu
Paiute Tribe v. Dept. of Interior, 773 F. Supp. 1383, 1388 (E.D. Cal.
1991) (“[w]here the government’s position in the course of litigation and
at the agency level below is substantially justified as a whole, the lack of
substantial justification on one procedural issue raised during the course
of litigation may not provide a basis for apportioning an award of fees . . .
for time spent defending that one procedural issue”).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 308 Neb. 749to adjudicate B.C. was substantially justified. Accordingly, no
statute provides for the recovery of Joshua’s attorney fees and
expenses incurred in this appeal. We need not address the par-
ties’ other arguments concerning § 25-1803.
CONCLUSION
For the foregoing reasons, we deny Joshua’s motion for
attorney fees and costs.
Motion for attorney fees denied.