Millard Gutter Company, a Corporation Doing Business as Millard Roofing and Gutter, Appellant,
American Family Insurance Company, Appellee.
Jurisdiction: Appeal and Error. The question of jurisdiction
is a question of law, upon which an appellate court reaches a
conclusion independent of the trial court.
Costs: Appeal and Error. The decision of a trial court
regarding taxing of costs is reviewed for an abuse of
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.
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 below.
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
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.
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
Neb. 467] 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.
Costs. Litigation expenses are not recoverable unless
provided for by statute or a uniform course of procedure.
Costs: Legislature. It is within the province of the
Legislature to designate specific items of litigation expense
which may be taxed as costs.
Trial: Evidence: Costs. The electronic presentation of
evidence is not a taxable cost.
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.
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, PC, L.L.O.,
for appellant. Joel D. Nelson and Joel Bacon, of Keating,
O'Gara, Nedved & Peter, L.L.O., for appellee.
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.
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 [300 Neb. 468]
jurors. Millard Gutter appeals, arguing that once it filed a
voluntary 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.
conclude, on the facts of this case, that Millard
Gutter's voluntary dismissal had no effect on the
district court's authority 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.
2013 hailstorm, Millard Gutter performed roof repairs for
approximately 48 homeowners in the Omaha area, all of whom
were insured with American Family. In connection 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.
2015, Millard Gutter filed suit, as assignee of the
homeowners, 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,  and (4) violations of the Unfair Insurance
Claims Settlement Practices Act.
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 entitled
to a credit or setoff for payments previously made to the
homeowners under the insurance policies. American
Family's [300 Neb. 469] answer also alleged that Millard
Gutter's claims were frivolous and requested an award of
costs and attorney fees under Neb. Rev. Stat. § 25-824
American Family Moves for Partial Summary Judgment
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.
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 setting 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.
Millard Gutter Files Voluntary Dismissal
its final trial preparations, Millard Gutter discovered
"underfilling 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
Court Holds Hearing on Voluntary Dismissal and Costs
after learning Millard Gutter had filed a voluntary
dismissal, the district court held a hearing on the record
[300 Neb. 470] 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."
addressing costs, the hearing focused on the expenses
incurred by American Family in setting up courtroom
technology for use during the scheduled trial and the
expenses incurred by Douglas County to bring in prospective
Courtroom Technology Expenses
Family hired a court reporting firm to equip the courtroom
with electronics and display screens for use during the 5-day
trial. It was undisputed that the firm spent several 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 technology
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.
the parties' knowledge, the court summoned 40 prospective
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
dismissal was filed.
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 [300 Neb. 471] 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.
Order of Dismissal and Taxation of Costs
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 contract" 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."
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 judgment 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.
Millard Gutter's Motion to Alter or Amend
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
technology expenses were properly taxable as costs. The
district court overruled the motion to alter or amend in all
respects. Millard [300 Neb. 472] Gutter timely appealed, and
we moved the appeal to our docket on our own
ASSIGNMENTS OF ERROR
Gutter assigns, restated and consolidated, that the district
court erred in (1) making any rulings after the voluntary
dismissal was filed, (2) determining technology expenses and
jury expenses were ...