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White v. Kohout

Supreme Court of Nebraska

October 18, 2013

William White and Dana Singsaas and Rebecca Singsaas, husband and wife, appellants,
v.
Marvin Kohout, in his individual capacity, et al., appellees.

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[Copyrighted Material Omitted]

Page 254

Appeal from the District Court for Seward County: ALAN G. GLESS, Judge.

Thomas R. Wilmoth, David A. Jarecke, and Vanessa A. Silke, of Blankenau, Wilmoth & Jarecke, L.L.P., for appellants.

Stephen D. Mossman and Patricia L. Vannoy, of Mattson, Ricketts, Davies, Steward & Calkins, for appellees.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman and Cassel, JJ.

Syllabus

1. Attorney Fees: Appeal and Error. On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.

2. Judgments: Costs: Appeal and Error. The standard of review for an award of costs is whether an abuse of discretion occurred.

3. Motions to Dismiss: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo. When reviewing a dismissal order, the appellate court accepts as true all the facts which are well pled and

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the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the pleader's conclusions.

4. Actions: Pretrial Procedure: Attorney Fees: Costs. A proposed order dismissing a case with qualifications or conditions does not constitute a " voluntary dismissal" within the meaning of Neb.Rev.Stat. § 25-824(5) (Reissue 2008).

5. Actions: Attorney Fees: Costs. The two requirements of Neb.Rev.Stat. § 25-824.01 (Reissue 2008), one mandating a court to specifically set forth the reasons for the award and the other requiring the court to consider enumerated factors, are separate and distinct.

6. Statutes: Appeal and Error. An appellate court gives statutory language its plain and ordinary meaning.

7. Statutes: Legislature: Intent: Appeal and Error. An appellate court gives effect to the purpose and intent of the Legislature as ascertained from the entire language of a statute considered in its plain, ordinary, and popular sense.

8. Actions: Attorney Fees. Attorney fees can be awarded when a party brings a frivolous action that is without rational argument based on law and evidence.

9. Actions: Attorney Fees: Words and Phrases. The term " frivolous" connotes an improper motive or legal position so wholly without merit as to be ridiculous.

10. Actions: Attorney Fees. Attorney fees for a bad faith action under Neb.Rev.Stat. § 25-824 (Reissue 2008) may be awarded when the action is filed for purposes of delay or harassment.

11. Actions. Relitigating the same issue between the same parties may amount to bad faith.

12. Actions. Any doubt whether a legal position is frivolous or taken in bad faith should be resolved for the party whose legal position is in question.

13. 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.

Cassel, J.

[286 Neb. 701] INTRODUCTION

Several taxpayers challenged the validity of an agreement for hosting of a nearby landfill. The district court dismissed their complaint and imposed attorney fees under " frivolous actions" statutes.[1] In the challengers' appeal, we initially focus on the attorney fee award and reject two procedural arguments: First, their proposed dismissal included conditions disqualifying it as a " voluntary dismissal" under a statutory safe harbor. Second, the court sufficiently stated its reasons for the fee award. But because the court failed to resolve doubt over the merits of the complaint in the challengers' favor, its fee award was an abuse of discretion. We reverse that portion of the court's judgment.

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And because the reason for dismissal was relevant only to the fee issue, we affirm the dismissal of the complaint without deciding whether ...


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