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State ex rel. Peterson v. Creative Community Promotions, LLC

Supreme Court of Nebraska

March 22, 2019

State of Nebraska ex rel. Douglas J. Peterson. Attorney General, appellee,
v.
Creative Community Promotions, LLC, and Joel Bieschke, appellants.

         1. 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.

         2. 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.

         3. Attorney Fees: Appeal and Error. A trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.

         4. 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.

          Appeal from the District Court for Buffalo County: John H. Marsh, Judge.

          Siegfried H. Brauer for appellants.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

         [302 Neb. 607] Papik, J.

         After 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.

         BACKGROUND

         Allegations of Parties.

         The 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).

         [302 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.

         Procedural History.

         The 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 ...


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