In re A.A., 032621 NESC, S-20-009

Docket NºS-20-009
Opinion JudgeFREUDENBERG, J.
Party NameIn re Interest of A.A. et al., children under 18 years of age. v. Joshua C, appellant. State of Nebraska, appellee,
AttorneyMatt Catlett, of Law Office of Matt Catlett, for appellant. Douglas J. Peterson, Attorney General, C.J. Roberts, Special Assistant Attorney General, and Patrick Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee.
Judge PanelHeavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Case DateMarch 26, 2021
CourtSupreme Court of Nebraska

308 Neb. 749

In re Interest of A.A. et al., children under 18 years of age.

State of Nebraska, appellee,

v.

Joshua C, appellant.

No. S-20-009

Supreme Court of Nebraska

March 26, 2021

1. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

2. Constitutional Law: Actions: Legislature: Immunity: Waiver. Neb. Const, art. V, § 22, providing that the State may sue and be sued and that the Legislature shall provide by law in what manner and in what courts suits shall be brought, permits the State to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe.

3. Actions: Attorney Fees: Immunity: Waiver. Neb. Rev. Stat. § 25-1803(1) (Reissue 2016) acts as a limited waiver of the State's sovereign immunity in civil actions brought by the State to the extent that fees and expenses shall be awarded except when the court finds that the position of the State was substantially justified.

4. Attorney Fees. The existence of substantial justification depends upon the circumstances of each case.

5. __. Substantial justification exists where the position has a reasonable basis both in law and in fact.

6. Attorney Fees: Appeal and Error. The mere fact that the State has not been successful in an appellate court does not mean its position was not substantially justified.

[308 Neb. 750] 7. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and against the waiver.

8. __: __: __. 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 construction.

9. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

10. Actions: Attorney Fees: Immunity: Waiver. Neb. Rev. Stat. § 25-1803 (Reissue 2016) does not waive sovereign immunity regarding attorney fees and expenses incurred to defend against positions taken against particular parties on particular motions within an action that was, as a whole, substantially justified.

Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Motion for attorney fees denied.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Douglas J. Peterson, Attorney General, C.J. Roberts, Special Assistant Attorney General, and Patrick Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee.

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

FREUDENBERG, J.

NATURE OF CASE

This opinion addresses a motion for attorney fees and expenses against the State by the intervenor in a juvenile proceeding who was successful in his appeal from a final order during the pendency of the case. We find that under Neb. Rev. Stat. § 25-1804(1) (Reissue 2016), the State's position in bringing and maintaining the underlying petition for adjudication was substantially justified. Therefore, the State's limited [308 Neb. 751] waiver of sovereign immunity set forth in § 25-1804(1) does not apply to the fees and expenses sought.

BACKGROUND

The facts of this case are fully set forth in our opinion, In re Interest of A.A. et al., 1 which addressed two consolidated appeals from final orders in ongoing proceedings under a petition to adjudicate a child, B.C., due to the fault or habits of the mother. Joshua C, the legal father of B.C., appealed (1) the denial of his motion for temporary physical placement of B.C., who was removed from the mother's home, and (2) a subsequent adjudication order due to the fault or habits of the mother.

B.C. lived with the mother and not with Joshua. B.C. was removed from the mother's home pending adjudication, upon a finding that remaining in the mother's home would be contrary to B.C.'s health, safety, and welfare and would not be in B.C.'s best interests. Joshua, who had an established parental relationship with B.C., intervened in the juvenile proceedings. However, without the State's making any allegations of unfitness regarding Joshua, the court denied Joshua's motion for temporary placement on the grounds that Joshua was unfit. The first appeal was from that order.

While Joshua's first appeal was pending, the mother pled no contest to the petition for adjudication. The district court overruled Joshua's objection to the hearing on adjudication in which Joshua argued that his pending appeal from the denial of his motion for placement deprived the district court of jurisdiction.

With regard to the first appeal, we held in In re Interest of A.A. et al. that Joshua was deprived of due process when the court refused to recognize his parental preference over the State to B.C.'s custody by finding him unfit without any formal allegation placing him on notice that he would have [308 Neb. 752] to defend against an attempt by the State to prove he had lost the presumption of parental preference. In the second appeal addressed in In re Interest of A. A. et al, we found no merit to Joshua's contention that the pendency of Joshua's first appeal had divested the district court of jurisdiction to accept the mother's no contest plea to the petition to adjudicate B.C. due to the mother's fault or habits.

ANALYSIS

Pursuant to Neb. Rev. Stat. § 25-1803(1) (Reissue 2016) and Neb. Ct. R. App. P. §...

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