Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/17/2019 09:07 AM CDT




                                                       - 606 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                         STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                                            Cite as 302 Neb. 606




                           State of Nebraska ex rel. Douglas J. Peterson,
                              Attorney General, appellee, v. Creative
                                  Community Promotions, LLC, and
                                     Joel Bieschke, appellants.
                                                  ___ N.W.2d ___

                                        Filed March 22, 2019.    No. S-18-321.

                 1. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques-
                    tion of law, upon which an appellate court reaches a conclusion indepen-
                    dent of the trial court.
                 2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
                    tion 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 sum-
                    mary judgment.

                 Appeal from the District Court for Buffalo County: John H.
               M arsh, Judge. Affirmed in part, and in part dismissed.

                    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.
                              - 607 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

   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 over-
ruling 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, accommoda-
tions 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 pur-
chasers 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).
                              - 608 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

   CCP generally denied the State’s allegations. Additionally,
CCP contended that Bieschke had made arrangements to pur-
chase 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 Statutory Attorneys
Fees,” in which it claimed a right to attorney fees under
§§ 59-1608 and 87-303.
   Before CCP’s attorney fees motion was heard and ruled
upon, however, the State moved for reconsideration of the
summary judgment order. On April 1, 2016, the State’s motion
was granted in a written order. The district court stated that
after reviewing its prior order, it determined that it had failed
to draw all inferences in favor of the State as the nonmoving
party. Finding that summary judgment was inappropriate, the
district court vacated its prior order of summary judgment in
favor of CCP.
   With the court’s previous summary judgment order vacated,
the parties returned to the litigation battlefield. CCP moved for
summary judgment again and this time was unsuccessful. CCP
later filed a document styled as a “Motion to Dismiss,” and it,
too, was unsuccessful.
   Finally, on January 10, 2018, more than 3 years after it initi-
ated the action, the State filed a notice of voluntary dismissal.
The State asserted that it was “voluntarily dismiss[ing] the
                             - 609 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

above captioned matter with prejudice.” In the notice, the State
specified that it had determined that settlement was “impos-
sible” and that any financial recovery for Nebraska consumers
was “extremely unlikely.” The notice concluded as follows:
“As such, the [State] has made a determination that its limited
resources can be spent more effectively on other matters than
by pursuing this case further and respectfully requests that
prejudice attach to this dismissal.”
   One week later, on January 17, 2018, CCP filed a notice of
hearing regarding its motion for statutory attorney fees. The
district court proceeded to hold a hearing on the matter and
received briefs from the parties regarding whether CCP was
entitled to attorney fees. In a subsequent written order, the
district court concluded that it had jurisdiction to decide CCP’s
claim for attorney fees notwithstanding the State’s voluntary
dismissal. The district court went on to conclude, however, that
CCP was not entitled to attorney fees under either the CPA or
the UDTPA. It found that the UDTPA authorizes an award of
attorney fees only if “the party complaining of a deceptive trade
practice has brought an action which he knew to be ground-
less” and that CCP was not entitled to attorney fees under
the UDTPA, because the State’s action was not “groundless.”
The district court found that CCP was not entitled to attorney
fees under the CPA, because the CPA authorizes the award of
attorney fees only to a “prevailing party,” § 59-1608(1), and it
found that the State’s voluntary dismissal did not make CCP a
prevailing party for purposes of the statute.

                  ASSIGNMENTS OF ERROR
   CCP assigns a number of errors, which can be consolidated
and restated into three: (1) that the district court erred in
vacating its entry of summary judgment in favor of CCP, (2)
that the district court erred in denying CCP’s second motion
for summary judgment, and (3) that the district court erred
in not awarding attorney fees to CCP under the UDTPA and
the CPA.
                             - 610 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

                   STANDARD OF REVIEW
   [1] The question of jurisdiction is a question of law, upon
which an appellate court reaches a conclusion independent of
the trial court. Millard Gutter Co. v. American Family Ins. Co.,
300 Neb. 466, 915 N.W.2d 58 (2018).
   [2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. Id.
   [3] A trial court’s decision awarding or denying attorney
fees will be upheld absent an abuse of discretion. State ex
rel. Stenberg v. Consumer’s Choice Foods, 276 Neb. 481, 755
N.W.2d 583 (2008).

                           ANALYSIS
CCP’s Challenges to District Court’s
Summary Judgment Rulings.
   We begin by addressing CCP’s challenges to the district
court’s summary judgment rulings. As noted above, CCP chal-
lenges both the district court’s order vacating its prior summary
judgment in favor of CCP and its later order denying CCP’s
motion for summary judgment. We conclude we lack jurisdic-
tion to address either issue.
   We have held that both the denial of a motion for summary
judgment and an order vacating a previous entry of summary
judgment are interlocutory rather than final orders and thus
not immediately appealable. See, e.g., Doe v. Zedek, 255
Neb. 963, 587 N.W.2d 885 (1999) (collecting cases holding
that denial of motion for summary judgment is interlocutory
and not final order); Otteman v. Interstate Fire & Cas. Co.,
Inc., 171 Neb. 148, 105 N.W.2d 583 (1960) (holding that
order vacating summary judgment was interlocutory and not
final order). See, also, Deines v. Essex Corp., 293 Neb. 577,
879 N.W.2d 30 (2016) (holding that order vacating dismissal
and reinstating case did not affect substantial right and was
thus not appealable). CCP thus could not obtain review of
                              - 611 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

the district court’s summary judgment orders at the time they
were entered.
   [4] We have further observed that denials of summary judg-
ment are not appealable or reviewable even after the conclu-
sion of a case. See Doe v. Zedek, supra. As we have explained,
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.” Id. at
969, 587 N.W.2d at 890. While we do not appear to have
previously confronted the same question concerning an order
vacating a prior grant of summary judgment, the same ration­
ale would seem to suggest that review of such an order is also
unavailable at the conclusion of a case.
   We recognize that under the circumstances of this case,
the State’s voluntary dismissal prevented a “fully developed
record” from being formed, but we do not believe that makes
the earlier summary judgment orders reviewable. For while a
record was not developed, neither is there a merits determina-
tion for us to make on appeal. The State exercised its right to
voluntarily dismiss its claims, and while CCP insisted that the
district court take up its motion for attorney fees, an issue we
discuss in more detail below, it did not otherwise object to the
voluntary dismissal. The dismissal thus ended the controversy
on the State’s claims, and they are no longer subject to appel-
late review. See State v. Dorcey, 256 Neb. 795, 592 N.W.2d
495 (1999).

CCP’s Motion for Attorney Fees:
Jurisdiction.
   We now turn to CCP’s argument that the district court
erred by denying its motion for attorney fees. And again,
we are confronted with a jurisdictional issue. Here, the State
argues that once it exercised its right to voluntarily dismiss
its claims, the district court was without power to consider
CCP’s motion for attorney fees. The State argues that because
the district court was without jurisdiction to award attorney
                             - 612 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

fees, we are without jurisdiction to consider CCP’s entitle-
ment to attorney fees on appeal. We disagree for reasons
explained below.
   The State claims it had a right to voluntarily dismiss its
claims and thereby terminate the district court’s jurisdiction.
We have recognized, however, that even when the plaintiff
has the right to dismiss an action, trial courts have discretion
to protect rights which “have accrued to [a] defendant as a
result of the bringing of the action, such as the preservation
of a counterclaim, the restitution of property of which he has
been deprived, the recovery of his costs, and the like.” See
Blue River Power Co. v. Hronik, 116 Neb. 405, 413, 217 N.W.
604, 607 (1928). See, also, Millard Gutter Co. v. American
Family Ins. Co., 300 Neb. 466, 915 N.W.2d 58 (2018); Feight
v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1951).
   CCP is claiming a right to attorney fees as a result of the
State’s having brought this action against it. Our case law gen-
erally treats attorney fees, where recoverable, as an element of
court costs. See Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d
356 (2002). And as noted above, we have previously recog-
nized that even when a plaintiff seeks voluntary dismissal, trial
courts have discretion to protect rights of the defendant that
accrued as a result of the bringing of the action, including the
recovery of costs “and the like.” For this reason, we believe
the district court had the authority to consider CCP’s claim
that it was entitled to an award of attorney fees notwithstand-
ing the State’s voluntary dismissal.
   We also observe that this case is not controlled by Kansas
Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d
865 (2002), a case in which we held that a district court did
not have jurisdiction to grant the defendant an award of attor-
ney fees after the plaintiff voluntarily dismissed. In that case,
however, at the time the plaintiff sought to voluntarily dismiss
with prejudice, the defendant had no pending motion for attor-
ney fees. Under those circumstances, we held that once the
                             - 613 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

court dismissed the action, “nothing remained for the court to
decide.” Id. at 980-81, 644 N.W.2d at 872.
   The circumstances in this case are different from those in
Halford. At the time the State sought to voluntarily dismiss,
CCP had already filed a motion for attorney fees which had
never been ruled upon. Because CCP claimed a right that
the district court had the power to protect and because it had
asserted that right prior to the State’s notice of voluntary dis-
missal, the district court had the jurisdiction to consider CCP’s
claim for attorney fees.

CCP’s Motion for Attorney Fees:
Merits.
  This leaves the merits of CCP’s motion for attorney fees.
CCP claims that the district court should have awarded it attor-
ney fees pursuant to two different statutes, §§ 87-303(b) and
59-1608(1). Section 87-303(b) provides as follows:
     Costs shall be allowed to the prevailing party unless
     the court otherwise directs. The court in its discretion
     may award attorneys’ fees to the prevailing party if (1)
     the party complaining of a deceptive trade practice has
     brought an action which he or she knew to be groundless
     or (2) the party charged with a deceptive trade practice
     has willfully engaged in the trade practice knowing it to
     be deceptive.
Similarly, § 59-1608(1) states:
     The Attorney General may bring an action in the name
     of the state against any person to restrain and prevent the
     doing of any act prohibited by the [CPA]. The prevailing
     party may, in the discretion of the court, recover the costs
     of such action including a reasonable attorney’s fee.
Both statutes authorize the award of attorney fees only to a
“prevailing party.” We thus begin our analysis with whether
CCP is a prevailing party. To answer that question, we must
engage in statutory interpretation.
                             - 614 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

   Our basic principles of statutory interpretation generally
require us to give statutory language its plain and ordinary
meaning. See Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016). As the U.S.
Supreme Court has observed, however, “prevailing party” is
a “legal term of art.” Buckhannon Board & Care Home, Inc.
v. West Virginia Dept. of Health and Human Resources, 532
U.S. 598, 603, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001)
(Buckhannon).
   A legal term of art is a word or phrase having a specific,
precise meaning in a given specialty apart from its gen-
eral meaning in ordinary contexts. See Wisner v. Vandelay
Investments, 300 Neb. 825, 916 N.W.2d 698 (2018). When
legal terms of art are used in statutes, they are to be construed
and understood according to their term of art meaning. See
Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018) (cit-
ing Neb. Rev. Stat. § 49-802(5) (Reissue 2010)). See, also,
Hammond v. Stamps.com, Inc., 844 F.3d 909, 911 (10th Cir.
2016) (“[w]hen Congress chooses to employ a term of legal
art like this we typically assume it is employing its accepted
meaning”).
   In Buckhannon, the case in which the U.S. Supreme Court
identified “prevailing party” as a term of art, it also explored
the contours of that meaning. It explained that a “prevailing
party” is “one who has been awarded some relief by the court.”
Id., 532 U.S. at 603. Applying that concept, the Court held
that the plaintiff seeking attorney fees as a “prevailing party”
under federal statutes in the case before it did not qualify. It
explained that even though the defendant in that case volun-
tarily ceased the activity challenged by the plaintiff’s suit,
there was no “necessary judicial imprimatur” on the change
in relationship. Id., 532 U.S. at 605 (emphasis in original). We
have subsequently relied on Buckhannon to hold that when a
defendant voluntarily ceases conduct challenged by a plain-
tiff’s suit without judicial involvement, the plaintiff does not
                             - 615 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

qualify as a “prevailing party” under 42 U.S.C. § 1988 (2012).
See Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d
129 (2004).
   Buckhannon, to be sure, involved different factual circum-
stances from the case at hand. In Buckhannon, the plaintiff
brought suit, the defendant voluntarily changed its ways, and
the case was dismissed as moot. Here, CCP defended itself
and the State (eventually) dropped the suit. But while the cir-
cumstances are not exactly the same, they are alike in a cru-
cial way. In both cases, one side surrendered and, as a result,
the case concluded without any judicial determination as to
whether the suit was meritorious. As Buckhannon explains,
without such a judicial determination, there is no prevailing
party. With this understanding of the term “prevailing party,” it
quickly becomes clear that CCP does not qualify in this case.
The State chose to voluntarily dismiss its claims before any
judicial determination could be made as to their merits.
   We note that we are not the first court to rely on the
understanding of prevailing party set forth in Buckhannon to
conclude that a defendant does not qualify merely because
a plaintiff voluntarily dismissed a suit with prejudice. See,
e.g., Bridgeport Music, Inc. v. London Music, U.K., 345 F.
Supp. 2d 836 (M.D. Tenn. 2004); Bryant v. MV Transp., Inc.,
231 F.R.D. 480 (E.D. Va. 2005); Smalley v. Account Services
Collections, Inc., No. 2:15cv1488, 2017 WL 1092678 (W.D.
Pa. Mar. 23, 2017) (memorandum opinion); Righthaven LLC
v. Hill, No. 1:11-cv-00211-JLK, 2011 WL 4018105 (D. Colo.
Sept. 9, 2011) (unpublished opinion). In each of these cases,
courts found that because the dismissal did not involve a
grant of judicial relief, the defendant was not a prevail-
ing party.
   We acknowledge other cases, some of which are cited by
CCP, in which defendants were awarded attorney fees as a
“prevailing party” after a voluntary dismissal with prejudice.
But we believe those cases are not inconsistent with the result
                             - 616 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

we reach today. To take one illustrative example, in Claiborne
v. Wisdom, 414 F.3d 715 (7th Cir. 2005), the Seventh Circuit
found that a defendant was a prevailing party after the plaintiff
voluntarily dismissed. In that case, however, the plaintiff filed
a motion to dismiss, presumably under Fed. R. Civ. P. 41(a)(2),
and the trial court decided the dismissal should be with preju-
dice. In doing so, the trial court placed its “judicial imprima-
tur” on the dismissal. See, also, Highway Equipment Co., Inc.
v. FECO, Ltd., 469 F.3d 1027 (Fed. Cir. 2006) (explaining that
district court’s exercise of discretion to grant dismissal with
prejudice under Fed. R. Civ. P. 41(a)(2) constitutes necessary
judicial imprimatur to confer prevailing party status); Samsung
Electronics Co., Ltd. v. Rambus, Inc., 440 F. Supp. 2d 495
(E.D. Va. 2006) (same).
   Unlike the cases discussed immediately above, the district
court here did not order that the case be dismissed with preju-
dice or make any determination regarding the merits of the
suit. In fact, the absence of any order from the district court
dismissing the action with prejudice at least raises the question
of whether the dismissal was, in fact, with prejudice. We rec-
ognize that the State’s notice of dismissal purported to dismiss
with prejudice, but it also invoked Neb. Rev. Stat. § 25-601
(Reissue 2016), a statute that refers only to dismissals without
prejudice. It also requested that “prejudice attach to [its] dis-
missal,” but the district court never took any action to indicate
that the dismissal was, in fact, with prejudice. We need not,
however, resolve the question of whether prejudice attached to
the State’s dismissal, because whether it was with or without
prejudice, the district court did not find in favor of CCP on
the merits or otherwise put its imprimatur on the outcome,
and thus CCP was thus not a “prevailing party” under either
§ 87-303(b) or § 59-1608(1).
   Because CCP was not a “prevailing party” under § 87-303(b)
or § 59-1608(1) and because both of those statutes authorize
the award of attorney fees only to a “prevailing party,” we find
                              - 617 -
           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
     STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS
                        Cite as 302 Neb. 606

that the district court did not err in denying CCP’s motion for
attorney fees.

                         CONCLUSION
   As explained above, we lack jurisdiction to review CCP’s
claim that the district court’s summary judgment orders were
erroneous. While we do have jurisdiction to review CCP’s
claim that the district court should have granted its motion for
attorney fees, we find that the district court did not err in deny-
ing that motion. Accordingly, we dismiss the portion of the
appeal seeking review of the court’s summary judgment orders
and otherwise affirm.
                       A ffirmed in part, and in part dismissed.
   Freudenberg, J., not participating.
