Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466

Background

Millard Gutter (assignee of homeowners) sued American Family for breach of contract and several statutory and bad-faith claims arising from 2013 hailstorm roof repairs; American Family answered and pleaded a setoff for prior payments.
American Family won partial summary judgment on three claims (bad faith and two statutory claims); only breach-of-contract claims remained for a 5-day jury trial.
On the morning trial was to begin, Millard Gutter filed a voluntary dismissal without prejudice under Neb. Rev. Stat. §§ 25-601/25-602, intending to refile later.
The district court held a hearing, ruled the prior summary judgments would remain, granted dismissal of the remaining breach claims without prejudice, and taxed costs to Millard Gutter including $1,650 for courtroom-technology setup and $2,000 for juror fees/mileage.
Millard Gutter moved to alter or amend; the court denied relief. Millard Gutter appealed, challenging the court’s post-dismissal authority and the taxation of technology and juror expenses.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether filing a voluntary dismissal divested the district court of authority to make further rulings	Millard: dismissal automatically terminated the court’s jurisdiction and barred further rulings	American Family: court retained authority because statutory dismissal rights were limited by final submission/setoff	Court: dismissal did not divest authority; Millard had no statutory right to dismiss under §§25-601/25-602 given procedural posture
Whether a motion for summary judgment can be a "final submission" under §25-601	Millard: dismissal was before jury submission so §25-601 applied	American Family: prior summary judgments resulted from final submissions that precluded voluntary dismissal on those claims	Court: a summary judgment motion can be a final submission; where summary judgment was granted and not later set aside, §25-601 did not permit dismissal of those resolved claims
Whether §25-602 barred dismissal because of a setoff in the answer	Millard: remaining breach claims could be dismissed under §25-602	American Family: its asserted setoff in the answer prevented statutory dismissal under §25-602	Court: because American Family pleaded a setoff and was ready to proceed, §25-602 prevented statutory dismissal of those claims (though court could grant dismissal in its discretion)
Whether courtroom-technology and juror compensation were taxable costs	Millard: such items are not taxable costs absent statutory authorization	American Family: costs were reasonable and should be taxed; argued policy/inherent powers support taxation	Court: abused discretion taxing both; Nebraska law lacks statute or uniform procedure authorizing taxation of electronic-presentation expenses or county-paid juror fees/mileage as costs

Key Cases Cited

Kansas Bankers Surety Co. v. Halford, 263 Neb. 971 (clarifying when summary-judgment briefing affects final-submission analysis)
City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230 (electronic presentation of evidence is not a taxable cost absent statute)
McGill v. Lion Place Condo. Assn., 291 Neb. 70 (litigation expenses recoverable only if statute or uniform procedure authorizes)
Frazer v. Myers, 95 Neb. 194 (historical treatment suggesting jury fees as costs, but not followed as controlling law here)
Holste v. Burlington Northern R.R. Co., 256 Neb. 713 (discussing limits on voluntary dismissal and court discretion)