State of Nebraska ex rel. Douglas J. Peterson. Attorney General, appellee,
Creative Community Promotions, LLC, and Joel Bieschke, appellants.
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.
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
Attorney Fees: Appeal and Error. A trial
court's decision awarding or denying attorney fees will
be upheld absent an abuse of discretion.
Summary Judgment: Appeal and Error. After
trial, the merits should be judged in relation to the fully
developed record, not whether a different judgment may have
been warranted on the record at summary judgment.
from the District Court for Buffalo County: John H. Marsh,
Siegfried H. Brauer for appellants.
Douglas J. Peterson, Attorney General, and James D. Smith for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Neb. 607] Papik, J.
years of litigation, the State of Nebraska voluntarily
dismissed claims it had asserted under Nebraska's
Consumer Protection Act and the Uniform Deceptive Trade
Practices Act against Creative Community Promotions, LLC, and
its owner and operator, Joel Bieschke (collectively CCP). CCP
claimed that after the State's dismissal, it was entitled
to attorney fees under those statutes. The district court
denied CCP's request for attorney fees, and CCP now
appeals. Because both statutes authorize an award of attorney
fees only to a "prevailing party" and because we
find that CCP does not qualify as such, we affirm, in part.
We also find that we lack jurisdiction to review orders
vacating summary judgment in favor of CCP and overruling
CCP's subsequent motion for summary judgment and
therefore dismiss, in part.
State of Nebraska commenced this action against CCP in
September 2014. It alleged that CCP promoted and sold ticket
packages to a January 2014 concert in Omaha, Nebraska. The
ticket packages were to include transportation from various
locations in Nebraska to Omaha, accommodations in Omaha,
meals, and a concert ticket. The State alleged, however, that
CCP did not secure all the necessary tickets to the concert
and that many purchasers traveled to Omaha, only to learn
they did not have concert tickets. The State alleged that
while attempts were made to secure seating, many purchasers
missed part of the concert, had to stand for portions of it,
or were unable to watch the concert altogether. Based on
these allegations, the State asserted claims under
Nebraska's Consumer Protection Act (hereinafter CPA), see
Neb. Rev. Stat. § 59-1601 et seq. (Reissue 2010 &
Cum. Supp. 2018), and the Uniform Deceptive Trade Practices
Act (hereinafter UDTPA), see Neb. Rev. Stat. § 87-301 et
seq. (Reissue 2014 & Cum. Supp. 2018).
Neb. 608] CCP generally denied the State's allegations.
Additionally. CCP contended that Bieschke had made
arrangements to purchase tickets to the concert from an
individual who obtained and resold entertainment tickets, but
that the individual failed to provide the tickets. CCP
contended that there had been no violation of the CPA or the
UDTPA. In its answer, it asked that the State's action be
dismissed and that CCP be awarded attorney fees.
parties proceeded to litigate the case and encountered
various twists and turns along the way. Notably, in October
2015, the district court entered summary judgment in favor of
CCP. In a written order, the court explained that the
evidence demonstrated that CCP intended to provide the
tickets to its customers and thus did not violate the CPA or
the UDTPA. Shortly thereafter, CCP filed a "Motion for