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
reasonable inferences in favor of the nonmoving party.
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
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.
Tort Claims Act: Immunity: Waiver: Appeal and
Error. An exception 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.
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.
Constitutional Law: Immunity: Waiver. Under
the 11th Amendment, a nonconsenting state is generally immune
from suit unless the state has waived its immunity.
Tort Claims Act: Immunity: Waiver. The State
Tort Claims Act allows a limited waiver of the State's
sovereign immunity, subject to statutory exceptions.
Statutes: Appeal and Error. Appellate courts
give statutory language its plain and ordinary meaning and
will not resort to interpretation [298 Neb. 618] to ascertain
the meaning of statutory words which are plain, direct, and
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.
Immunity: Waiver. In order to strictly
construe against a waiver of sovereign immunity, courts
broadly read exemptions from a waiver of sovereign immunity.
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 reasonable
Political Subdivisions Tort Claims Act: Tort Claims
Act. The discretionary 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.
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 exception to immunity under
the State Tort Claims Act precludes suit is a question of
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.
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
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.
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.
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed.
D. Renner and Andre R. Barry, of Cline, Williams, Wright,
Johnson & Oldfather, L.L.R, for appellants.
Neb. 619] Douglas J. Peterson, Attorney General, and Timothy
R. Ertz for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
appeal concerns the dismissal of a complaint filed in the
district court for Lancaster County under Nebraska's
State Tort Claims Act (STCA) 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.
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
are a group of over 30 farmers and farm management customers
of PEI, a grain warehouse in northeast Nebraska, which failed
and closed in March 2014. Throughout the fall of 2013 and
spring of 2014, each appellant conducted business with PEI,
unaware that PEI was financially unstable.
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 [298 Neb. 620]
PSC contacted PEI's bank and expressed concern but took
no further action. Until its closure, PEI's net worth and
working capital ratio remained negative by millions of
dollars. Nevertheless, PEI continued to contract with
appellants and take possession of their grain.
March 5, 2014, the PSC terminated PEI's grain warehouse
and grain dealer licenses. Appellants were in large part
unpaid for their grain. Appellants suffered a cumulative
financial loss of over $2.56 million.
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
mandatory 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 appellants, which caused
appellants' financial losses.
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 "failure 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.
Neb. 621] II. ASSIGNMENTS OF ERROR
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) concluding that appellants'
claims are barred by the discretionary ...