State v. Creative Cmty. Promotions, LLC

• Citation: 924 N.W.2d 664,302 Neb. 606
• Decision Date: 22 March 2019
• Docket Number: No. S-18-321.,S-18-321.
• Parties: STATE of Nebraska EX REL. Douglas J. PETERSON, Attorney General, appellee, v. CREATIVE COMMUNITY PROMOTIONS, LLC, and Joel Bieschke, appellants.
• Court: Supreme Court of Nebraska

302 Neb. 606

924 N.W.2d 664

STATE of Nebraska EX REL. Douglas J. PETERSON, Attorney General, appellee,

v.CREATIVE COMMUNITY PROMOTIONS, LLC, and Joel Bieschke, appellants.

No. S-18-321.

Supreme Court of Nebraska.

Filed March 22, 2019.

Siegfried H. Brauer for appellants.

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

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

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).

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 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 initiated the action, the State filed a notice of voluntary dismissal. The State asserted that it was "voluntarily dismiss[ing] the above captioned matter with prejudice." In the notice, the State specified that it had determined that settlement was "impossible" 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 groundless" 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.

STANDARD OF REVIEW

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).

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. Id.

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 challenges 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 jurisdiction 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 the district court’s summary judgment orders at the time they were entered.

We have further observed that denials of summary judgment are not appealable or reviewable even after the conclusion 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 rationale 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 determination 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 appellate 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 fees, we are without jurisdiction to...