Wetovick v. The County Of Nance

Citation279 Neb. 773,782 N.W.2d 298
Decision Date29 April 2010
Docket NumberNo. S-08-1302.,S-08-1302.
PartiesRodney M. WETOVICK, Nance County Attorney, appellee and cross-appellant,v.The COUNTY OF NANCE, a body politic and corporate, et al., appellants and cross-appellees.
CourtSupreme Court of Nebraska

279 Neb. 773
782 N.W.2d 298

Rodney M. WETOVICK, Nance County Attorney, appellee and cross-appellant,
The COUNTY OF NANCE, a body politic and corporate, et al., appellants and cross-appellees.

No. S-08-1302.

Supreme Court of Nebraska.

April 29, 2010.

782 N.W.2d 299


782 N.W.2d 300


782 N.W.2d 301


782 N.W.2d 302
Syllabus by the Court

1. Declaratory Judgments. An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.

2. Actions: Governmental Subdivisions: Equity. An action for a declaration that a governmental entity has violated a law is equitable in nature.

3. Declaratory Judgments: Equity: Appeal and Error. In reviewing an equity action for a declaratory judgment, an appellate court decides factual issues de novo on the record and reaches conclusions independent of the trial court.

4. Evidence: Appeal and Error. When credible evidence is in conflict on material issues of fact, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

5. Justiciable Issues. Justiciability issues that do not involve a factual dispute present a question of law.

6. Statutes. Statutory interpretation is a question of law.

7. Appeal and Error. An appellate court resolves questions of law independently of the determination reached by the court below.

8. Declaratory Judgments: Proof. To obtain declaratory relief, a plaintiff must prove the existence of a justiciable controversy and an interest in the subject matter of the action.

9. Justiciable Issues. A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement.

10. Declaratory Judgments: Justiciable Issues: Standing: Moot Question. Both standing and mootness are key functions in determining whether a justiciable controversy exists, or whether a litigant has a sufficient interest in a case to warrant declaratory relief.

11. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.

12. Moot Question. Unless an exception applies, a court or tribunal must dismiss a moot case when changed circumstances have precluded it from providing any meaningful relief because the litigants no longer have a legally cognizable interest in the dispute's resolution.

13. Declaratory Judgments: Pleadings. When a plaintiff's pleadings in a declaratory judgment action put the defendant on notice of the remedy sought, a trial court may order relief which is clearly within the scope of its declaratory judgment.

14. Declaratory Judgments. When a party's requested relief is not clearly within the scope of a court's declaratory judgment, the court should grant such relief only for a plaintiff's concurrent or subsequent cause of action or the plaintiff's application for supplemental relief under Neb.Rev.Stat. § 25-21,156 (Reissue 2008).

15. Counties: Statutes. A county in this state is a creature of statute and has no inherent authority. It can exercise only those powers expressly granted to it by statute or necessarily implied to carry out its expressed powers.

782 N.W.2d 303

16. Counties. A grant of power to a county is strictly construed, and reasonable doubts regarding the existence of its power are resolved against it.

17. Counties: Public Officers and Employees. Absent a legislative grant of authority, a county board has no power to perform the official duties of other officials or boards.

18. Evidence. Unless an exception applies, only a preponderance of evidence is required in civil cases. Monetary disputes are not an exception.

19. Counties: Public Officers and Employees: Evidence. Under Neb.Rev.Stat. § 23-1111 (Reissue 2007), unless a county board shows by a preponderance of the evidence that an elected officer's employment determination is arbitrary, capricious, or unreasonable, it lacks authority to disapprove it.

20. Counties: Statutes. Neb.Rev.Stat. § 23-908 (Reissue 2007) does not control a budget dispute when a more specific statute applies.

21. Counties: Statutes: Public Officers and Employees. In budget disputes between a county board and an elected officer over the officer's employment determinations, Neb.Rev.Stat. § 23-1111 (Reissue 2007) controls, not Neb.Rev.Stat. § 23-908 (Reissue 2007), unless a more specific statute applies to a particular officer's personnel requests.

22. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Ordinarily, when an appellate court judicially construes a statute and that construction fails to evoke an amendment, it is presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent.

23. Counties: Public Officers and Employees. Whether a county officer has reasonably fixed the terms and conditions of employment for an assistant or clerk presents a question of fact.

24. Public Officers and Employees: Wages: Evidence. Evidence that an elected officer could hire part-time assistants, or even a full-time assistant, for a somewhat lower salary or without benefits does not alone show that the officer's choice is unreasonable.

25. Counties: Public Officers and Employees: Wages: Child Support. Under Neb.Rev.Stat. § 43-512.05 (Reissue 2008), to the extent that a county board has already appropriated sufficient funding to pay the necessary salaries and expenses for performing child support enforcement duties, the board is entitled to deposit federal reimbursement funds into its general fund. But any reimbursement funds that the county is not entitled to keep must be carried over from year to year in the county attorney's budget when his or her office is performing all of the child support enforcement duties.

26. Attorney Fees: Appeal and Error. A party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees.

27. Costs: Attorney Fees: Words and Phrases. The term “costs” in a statute is not generally understood to include “attorney fees.”

28. Declaratory Judgments: Costs: Attorney Fees. Under Neb.Rev.Stat. § 25-21,158 (Reissue 2008), the Nebraska Supreme Court has not interpreted “costs” to include attorney fees or recognized a uniform course of procedure generally permitting attorney fees to be taxed as costs. Without another source of statutory authority that permits attorney fees to be taxed as costs, the prevailing party cannot

782 N.W.2d 304
recover attorney fees in a declaratory judgment action.

29. Attorney Fees: Contempt. Attorney fees in contempt cases fall under a court's inherent power to do all things necessary to enforce its judgment.

30. Attorney Fees. Outside of enforcing orders and judgments, the Nebraska Supreme Court has extended a court's inherent power to award attorney fees only in a narrow circumstance: when a party's conduct during the course of litigation is so vexatious, unfounded, and dilatory that it amounts to bad faith.

George E. Martin III and Aimee C. Bataillon, Omaha, of Spencer, Fane, Britt & Browne, L.L.P., for appellants.

Mark M. Sipple, Columbus, of Sipple, Hansen, Emerson & Schumacher, for appellee.

Rodney M. Wetovick, Nance County Attorney, pro se.



The appellee, Rodney M. Wetovick, the Nance County Attorney, submitted a budget with a salary request for a full-time secretary. The appellant Nance County Board of Supervisors (Board) refused to approve Wetovick's budget and instead voted to require Wetovick to employ part-time secretaries. Wetovick sued Nance County, the Board, and its members, seeking a declaratory judgment that his salary determination was reasonable and that the Board's disapproval of his decision was unreasonable. For simplicity, we will refer only to the Board.

After a bench trial, the court found that Wetovick's request was reasonable and that the Board had unreasonably required him to have part-time secretaries. It ordered the Board to approve Wetovick's budget request for a full-time secretary.

The issue is not whether a county board can cut an officeholder's budget. It can. The issue is whether a county board can dictate the terms of employment for an officer's employee absent proof that the officer's terms are unreasonable. It can't. We conclude that under Neb.Rev.Stat. § 23-1111 (Reissue 2007), the Board lacked authority to disapprove Wetovick's reasonable salary request absent a finding that the request was arbitrary, capricious, or unreasonable.


Wetovick was elected Nance County Attorney in November 2006. Before taking office in January 2007, he informally surveyed other county attorneys in the area to determine the staffing requirements and the reasonable compensation for legal secretaries. He concluded that he would need a full-time legal secretary and that reasonable compensation was $24,000.

On January 4, 2007, after conducting interviews for secretaries, Wetovick hired Cyndy Pilakowski. Pilakowski's salary was $24,000 on an annualized basis, or $12,000 through June 30, 2007, which was the end of the county's 2006-07 fiscal year. Pilakowski was already a county employee and was covered under the county's health insurance policy.

Wetovick believed that under § 23-1111 and the Board's personnel policy manual, he had authority to hire a secretary and set the position's salary and working conditions.

782 N.W.2d 305
The manual provided that each county official had hiring authority and the duty to inform new employees of their...

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