State ex rel. Peterson v. Creative Comm. Promotions
302 Neb. 606
| Neb. | 2019Background
- Nebraska Attorney General sued Creative Comm. Promotions (CCP) under the Consumer Protection Act (CPA) and the Uniform Deceptive Trade Practices Act (UDTPA); litigation lasted over three years.
- The district court initially granted summary judgment for CCP, but later vacated that entry after concluding it had failed to draw all inferences for the State as nonmoving party.
- CCP filed a second motion for summary judgment and a motion styled "Motion to Dismiss," both denied.
- The State then filed a notice of voluntary dismissal (purportedly with prejudice), explaining it would not pursue the case further.
- CCP moved for statutory attorney fees under § 87-303(b) (UDTPA) and § 59-1608(1) (CPA). The district court found it had jurisdiction to consider fees but denied relief, concluding CCP was not a "prevailing party."
- CCP appealed the summary judgment rulings and the denial of attorney fees; the Nebraska Supreme Court dismissed the appeal as to the summary judgment orders for lack of jurisdiction and affirmed the denial of attorney fees on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court can review district court's vacating of its earlier summary judgment | CCP: vacatur was erroneous and reviewable on appeal | State: vacating/denial of summary judgment are interlocutory and not appealable | Dismissed for lack of jurisdiction—those orders are interlocutory and not reviewable on appeal |
| Whether appellate court can review denial of CCP's second summary judgment | CCP: denial was erroneous and should be reversed | State: denial is interlocutory and not appealable | Dismissed for lack of jurisdiction—denial of summary judgment is not appealable even after case end |
| Whether district court had jurisdiction to rule on CCP's pending motion for attorney fees after voluntary dismissal | CCP: court retained power to protect defendant's accrued rights (costs/fees) | State: voluntary dismissal divested court of jurisdiction, so no authority to award fees | Court had jurisdiction because CCP filed fee motion before the State's notice of dismissal and fees are rights the court may protect |
| Whether CCP was entitled to attorney fees under UDTPA (§ 87-303(b)) or CPA (§ 59-1608(1)) | CCP: was entitled to fees because State dismissed with prejudice and CCP prevailed | State: dismissal without judicial determination means CCP is not a "prevailing party" under the statutes | Denied on merits: "prevailing party" is a legal term of art (Buckhannon); voluntary dismissal without judicial imprimatur does not make defendant a prevailing party, so fees not recoverable |
Key Cases Cited
- Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466 (2018) (standard of review for jurisdiction and statutory interpretation)
- Doe v. Zedek, 255 Neb. 963 (1999) (denial of summary judgment is interlocutory and not immediately appealable)
- Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001) ("prevailing party" requires a court-awarded relief or judicial imprimatur)
- Kansas Bankers Surety Co. v. Halford, 263 Neb. 971 (2002) (distinguishing circumstances when fee motions are not pending at time of dismissal)
- Blue River Power Co. v. Hronik, 116 Neb. 405 (1928) (trial courts may protect rights accrued to defendant when plaintiff voluntarily dismisses)