State ex rel. Peterson v. Creative Comm. Promotions, 924 N.W.2d 664

Background

Nebraska Attorney General sued Creative Comm. Promotions (CCP) under the Consumer Protection Act (CPA) and UDTPA; litigation spanned >3 years.
District court initially granted summary judgment for CCP, but later vacated that grant after concluding it hadn’t drawn all inferences for the State.
After vacatur, CCP renewed summary judgment and filed a motion to dismiss; both were denied.
The State then filed a notice of voluntary dismissal (stating dismissal with prejudice) and asserted settlement or recovery was unlikely.
CCP sought statutory attorney fees under Neb. Rev. Stat. § 87-303(b) (UDTPA costs provision) and § 59-1608(1) (CPA), asserting it was the prevailing party; the district court denied fees.
The Nebraska Supreme Court (1) dismissed CCP’s appeal of the interlocutory summary judgment orders for lack of jurisdiction and (2) affirmed denial of attorney fees, holding CCP was not a "prevailing party."

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (CCP)	Held
1. Was the district court’s vacatur of its prior summary judgment erroneous?	Vacatur was proper because court must draw inferences for nonmoving party (State).	Vacatur was erroneous; original summary judgment in CCP’s favor should stand.	Not reviewable on appeal—order vacating summary judgment was interlocutory; appellate court lacks jurisdiction.
2. Was denial of CCP’s second motion for summary judgment erroneous?	Denial appropriate on the merits after full consideration.	Denial was incorrect; CCP should have prevailed as a matter of law.	Not reviewable—denial of summary judgment is interlocutory and not appealable even after case end; appeal portion dismissed.
3. Did the district court have jurisdiction to rule on CCP’s attorney-fee motion after State’s voluntary dismissal?	State: voluntary dismissal stripped court of jurisdiction to award fees.	CCP: court retained discretion to protect defendant’s accrued rights (including fees) because CCP timely filed fee motion before dismissal.	Court had jurisdiction to consider fee motion because CCP asserted the right before dismissal and fees are akin to costs the court may protect.
4. Is CCP a “prevailing party” entitled to attorney fees under § 87-303(b) or § 59-1608(1)?	N/A (State argued dismissal without judicial relief means CCP not prevailing).	CCP argued voluntary dismissal with prejudice made it prevailing and entitled to fees.	Held: CCP not a prevailing party per Buckhannon; voluntary dismissal lacked judicial imprimatur/merits determination, so fee award was not required; denial affirmed.

Key Cases Cited

Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466 (discussing jurisdiction and statutory interpretation principles)
Doe v. Zedek, 255 Neb. 963 (denial of summary judgment is interlocutory and not appealable)
Otteman v. Interstate Fire & Cas. Co., Inc., 171 Neb. 148 (order vacating summary judgment is interlocutory)
Deines v. Essex Corp., 293 Neb. 577 (vacatur of dismissal and reinstatement not appealable)
State v. Dorcey, 256 Neb. 795 (voluntary dismissal ends controversy and limits appellate review)
Blue River Power Co. v. Hronik, 116 Neb. 405 (trial court discretion to protect defendant’s accrued rights on plaintiff’s dismissal)
Salkin v. Jacobsen, 263 Neb. 521 (attorney fees are generally treated as court costs)
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S. 598 (prevailing party requires judicially awarded relief; voluntary change without judicial imprimatur does not suffice)
Simon v. City of Omaha, 267 Neb. 718 (applying Buckhannon to § 1988 contexts)
Kansas Bankers Surety Co. v. Halford, 263 Neb. 971 (post-dismissal fee award barred where no pending fee motion existed at time of dismissal)
Claiborne v. Wisdom, 414 F.3d 715 (7th Cir. case explaining judicial imprimatur when court grants dismissal with prejudice)