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MILLARD GUTTER CO. v. AMERICAN FAMILY INS. CO.

Cite as 300 Neb. 466

Millard Gutter Company, a corporation

doing business as Millard Roofing and

Gutter, appellant, v. American Family

Insurance Company, appellee.

___ N.W.2d ___

Filed July 13, 2018. No. S-17-485.

1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

2. Costs: Appeal and Error. The decision of a trial court regarding taxing 

of costs is reviewed for an abuse of discretion.

3. Judgments: Words and Phrases. A judicial abuse of discretion exists 

when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition.

4. Statutes: Appeal and Error. 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.

5. Dismissal and Nonsuit. Generally speaking, under Neb. Rev. Stat. 

§§ 25-601 and 25-602 (Reissue 2016), a plaintiff has the right to dismiss 

an action without prejudice any time before final submission of the case, 

so long as no counterclaim or setoff has been filed by an opposing party.

6. ____. The statutory right to voluntary dismissal under Neb. Rev. Stat. 

§§ 25-601 and 25-602 (Reissue 2016) is not a matter of judicial grace or 

discretion, but neither is it absolute or without limitation.

7. ____. Under certain circumstances, a district court has the authority to 

deny a voluntary dismissal pursuant to Neb. Rev. Stat. §§ 25-601 and 

25-602 (Reissue 2016) and may attach conditions to the dismissal where 

justice and equitable principles so require.

8. Summary Judgment: Dismissal and Nonsuit. A motion for summary 

judgment can be a final submission that will prevent voluntary dismissal 

under Neb. Rev. Stat. § 25-601 (Reissue 2016).

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/14/2018 01:09 AM CDT
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9. Dismissal and Nonsuit: Costs. Neb. Rev. Stat. § 25-602 (Reissue 2016) 

gives plaintiffs in district court the right to dismiss their action without 

prejudice, upon payment of costs, when no counterclaim or setoff has 

been filed by the opposing party.

10. Costs. Litigation expenses are not recoverable unless provided for by 

statute or a uniform course of procedure.

11. Costs: Legislature. It is within the province of the Legislature to designate specific items of litigation expense which may be taxed as costs.

12. Trial: Evidence: Costs. The electronic presentation of evidence is not a 

taxable cost.

13. Juries: Costs. Under Neb. Rev. Stat. § 33-138(3) (Reissue 2016), the 

payment of jurors for service in the district and county courts shall be 

made by the county.

Appeal from the District Court for Douglas County: Horacio

J. Wheelock, Judge. Affirmed in part, and in part reversed.

Theodore R. Boecker, Jr., of Boecker Law Office, P.C., 

L.L.O., for appellant.

Joel D. Nelson and Joel Bacon, of Keating, O’Gara, Nedved 

& Peter, L.L.O., for appellee.

Donald W. Kleine, Douglas County Attorney, and Cortney 

M. Wiresinger for amicus curiae Douglas County, Nebraska.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and 

Funke, JJ.

Stacy, J.

Millard Gutter Company, a corporation doing business 

as Millard Roofing and Gutter (Millard Gutter), filed this 

civil action against American Family Insurance Company 

(American Family) in the Douglas County District Court. 

Just prior to jury selection, Millard Gutter filed a voluntary 

dismissal without prejudice. The district court held a hearing, 

after which it entered a judgment of dismissal and taxed costs 

to Millard Gutter, including expenses incurred by American 

Family in setting up courtroom technology and expenses 

incurred by Douglas County in compensating prospective 
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jurors. Millard Gutter appeals, arguing that once it filed a voluntary dismissal, the district court lacked authority to make 

any further rulings. Alternatively, Millard Gutter argues the 

district court erred in taxing technology expenses and jury 

expenses as costs.

We conclude, on the facts of this case, that Millard Gutter’s 

voluntary dismissal had no effect on the district court’s authority to make further rulings. But we find the court erred in 

taxing technology expenses and jury expenses as costs. We 

therefore reverse that portion of the judgment, and in all other 

respects we affirm.

I. BACKGROUND

After a 2013 hailstorm, Millard Gutter performed roof 

repairs for approximately 48 homeowners in the Omaha area, 

all of whom were insured with American Family. In connection with those repairs, Millard Gutter took assignments of any 

right the homeowners had to insurance proceeds due under 

their homeowners’ policies. The validity of the assignments is 

not at issue in this appeal.

In 2015, Millard Gutter filed suit, as assignee of the homeowners, against American Family. Millard Gutter’s complaint 

alleged claims for (1) breach of contract, (2) bad faith, (3) 

violations of the Unfair Insurance Trade Practices Act,1 and 

(4) violations of the Unfair Insurance Claims Settlement 

Practices Act.2

American Family’s answer admitted that it issued insurance 

policies to the Omaha homeowners and had an obligation to 

pay for covered losses caused by the hailstorm, but denied 

that Millard Gutter had valid assignments. American Family 

raised several affirmative defenses, including that it was entitled to a credit or setoff for payments previously made to the 

homeowners under the insurance policies. American Family’s 

1 Neb. Rev. Stat. §§ 44-1521 to 44-1535 (Reissue 2010).

2 Neb. Rev. Stat. §§ 44-1536 to 44-1544 (Reissue 2010 & Cum. Supp. 

2016).
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answer also alleged that Millard Gutter’s claims were frivolous and requested an award of costs and attorney fees under 

Neb. Rev. Stat. § 25-824 (Reissue 2016).

1. American Family Moves for

Partial Summary Judgment

American Family moved for partial summary judgment on 

three of Millard Gutter’s four claims for relief. The court 

granted the motion and entered summary judgment in favor 

of American Family on the claims alleging (1) bad faith, (2) 

violations of the Unfair Insurance Trade Practices Act, and (3) 

violations of the Unfair Insurance Claims Settlement Practices 

Act. Neither party asked the court to direct the entry of a final 

judgment under Neb. Rev. Stat. § 25-1315 (Reissue 2016), and 

the court did not do so.

The only claims to survive summary judgment were Millard 

Gutter’s claims for breach of contract, which were set for trial 

on January 23, 2017. The parties were given a special jury setting to minimize the risk that trial would need to be continued 

to accommodate other cases on the court’s docket. Trial was 

expected to last 5 days.

2. Millard Gutter Files

Voluntary Dismissal

During its final trial preparations, Millard Gutter discovered 

“underbilling issues” on some of the roof repairs, and decided 

to dismiss its breach of contract claims without prejudice 

rather than proceed to trial; it planned to refile the action later 

and seek additional damages. Thus, on the morning of January 

23, 2017, just minutes before trial was set to begin, Millard 

Gutter filed a voluntary dismissal without prejudice pursuant 

to Neb. Rev. Stat. § 25-601 (Reissue 2016).

3. Court Holds Hearing on Voluntary

Dismissal and Costs

Immediately after learning Millard Gutter had filed a voluntary dismissal, the district court held a hearing on the record 
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to discuss the effect of the filing and to address taxable costs. 

When asked what effect the voluntary dismissal should have 

on the claims previously resolved on summary judgment, 

Millard Gutter replied, “Our position is all we’re voluntarily 

dismissing without prejudice are the claims that have not 

already been dismissed, so the remaining claims are what we 

are dismissing.”

When addressing costs, the hearing focused on the expenses 

incurred by American Family in setting up courtroom technology for use during the scheduled trial and the expenses 

incurred by Douglas County to bring in prospective jurors.

(a) Courtroom Technology Expenses

American Family hired a court reporting firm to equip the 

courtroom with electronics and display screens for use during the 5-day trial. It was undisputed that the firm spent several hours over 2 days setting up the technology at a cost of 

$1,650. American Family asked that this expense be taxed to 

Millard Gutter. Millard Gutter stipulated to the reasonableness 

of the charges, but took the position that courtroom technology expenses were not properly taxable as costs. American 

Family made no request for other costs or attorney fees 

and did not ask for a determination of frivolousness under 

§ 25-824.

(b) Jury Expenses

With the parties’ knowledge, the court summoned 40 prospective jurors, rather than the usual 25, out of concern that 

potential juror conflicts might exist with American Family. 

These prospective jurors were called exclusively for this case 

and were waiting at the courthouse when the voluntary dismissal was filed.

During the hearing on costs, the court remarked, “It cost the 

taxpayers approximately $2,000 to have 40 jurors ready to go 

this morning, and that includes the . . . $35 fee for each juror 

and then approximately $15 in mileage for each juror . . . .” 

The court suggested an evidentiary hearing be held later in the 
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day to permit the clerk of the Douglas County District Court to 

testify and “get it down to the penny.” Millard Gutter declined 

an evidentiary hearing on the issue and stipulated that juror 

fees and mileage totaled $2,000, but argued such expenses 

were not properly taxable as costs.

4. Order of Dismissal and

Taxation of Costs

The court announced its ruling from the bench. It held 

the prior summary judgments in favor of American Family 

would “remain in place” on the claims of bad faith, violations 

of the Unfair Insurance Trade Practices Act, and violations 

of the Unfair Insurance Claims Settlement Practices Act. It 

further held it would dismiss “the remaining breach of contract” claims without prejudice, pursuant to the voluntary 

dismissal. The court taxed costs to Millard Gutter, including 

$1,650 for technology expenses incurred by American Family 

and $2,000 “to be paid to the Douglas County District Court 

clerk’s office for the 40 jurors that were specifically assigned 

to this case.”

Subsequently, the court entered a judgment of dismissal, 

styled as an order, consistent with its ruling from the bench. 

In addition to taxing technology costs and jury costs, the judgment taxed “all court costs” to Millard Gutter. The judgment 

also imposed certain procedural conditions in the event Millard 

Gutter refiled the action against American Family, but because 

neither party has assigned error to such conditions, we do not 

address them further.

5. Millard Gutter’s Motion

to Alter or Amend

Millard Gutter filed a timely motion to alter or amend. It 

argued the district court had no authority to rule on any issue 

after the voluntary dismissal was filed. In the alternative, 

Millard Gutter argued that neither jury expenses nor technology expenses were properly taxable as costs. The district court 

overruled the motion to alter or amend in all respects. Millard 
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Gutter timely appealed, and we moved the appeal to our 

docket on our own motion.3

II. ASSIGNMENTS OF ERROR

Millard Gutter assigns, restated and consolidated, that the 

district court erred in (1) making any rulings after the voluntary dismissal was filed, (2) determining technology expenses 

and jury expenses were taxable costs, and (3) overruling the 

motion to alter or amend.

III. STANDARD OF REVIEW

[1] The question of jurisdiction is a question of law, upon 

which an appellate court reaches a conclusion independent of 

the trial court.4

[2,3] The decision of a trial court regarding taxing of costs 

is reviewed for an abuse of discretion.5 A judicial abuse of 

discretion exists when the reasons or rulings of a trial judge 

are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted 

for disposition.6

[4] 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.7

IV. ANALYSIS

1. Voluntary Dismissal

Millard Gutter argues that once the voluntary dismissal 

without prejudice was filed, it had the effect of withdrawing 

3 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

4 Klingelhoefer v. Monif, 286 Neb. 675, 839 N.W.2d 247 (2013); Kansas 

Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 865 (2002).

5 O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017).

6 Id.

7 Amend v. Nebraska Pub. Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 

(2018).
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the entire case from the court’s consideration. According to 

Millard Gutter, the voluntary dismissal “automatically terminated the jurisdiction” of the district court8

 and the court 

thereafter lacked authority to make any further rulings regarding the case. We disagree.

The ability of a plaintiff to voluntarily dismiss his or her 

claim without prejudice is codified in § 25-601 and Neb. 

Rev. Stat. § 25-602 (Reissue 2016).9 Section 25-601 provides 

that “[a]n action may be dismissed without prejudice to a 

future action (1) by the plaintiff, before the final submission of the case to the jury, or to the court where the trial 

is by the court . . . .” A related statute, § 25-602, applies to 

cases pending before a district court or appellate court. At the 

time Millard Gutter filed its voluntary dismissal, § 25-602 

provided:

The plaintiff, in any case pending in the district or 

Supreme Court of the state, shall, when no counterclaim 

or setoff has been filed by the opposite party, have the 

right in the vacation of any of said courts to dismiss his 

said action without prejudice, upon payment of costs, 

which dismissal shall be, by the clerk of any of said 

courts, entered upon the journal and take effect from and 

after the date thereof.

We note that the Legislature recently amended § 25-602 primarily to update terminology,10 but those amendments do not 

affect our analysis in this case.

[5,6] Generally speaking, under §§ 25-601 and 25-602, 

a plaintiff has the right to dismiss an action without prejudice any time before final submission of the case, so long 

as no counterclaim or setoff has been filed by an opposing 

8 Brief for appellant at 6.

9 See Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d 894 

(1999).

10 See 2018 Neb. Laws, L.B. 193, § 9.
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party.11 We have stated that the statutory right to voluntary 

dismissal under §§ 25-601 and 25-602 is not a matter of 

judicial grace or discretion,12 but neither is it absolute or 

without limitation.13

[7] Under certain circumstances,14 a district court has the 

authority to deny a voluntary dismissal pursuant to §§ 25-601 

and 25-602 and may attach conditions to the dismissal where 

justice and equitable principles so require.15 And we have repeatedly stated that despite a plaintiff’s statutory right to voluntary 

dismissal, trial courts have discretion to protect the “‘“rights 

which have accrued to [a] defendant”’” in the action “‘“such 

as the preservation of a counterclaim, the restitution of property 

of which he has been deprived, the recovery of his costs, and 

the like.”’”16

Here, we apply the plain language of §§ 25-601 and 25-602 

and conclude that at the time Millard Gutter filed its voluntary dismissal, it had no such right under either statute. As 

11 Kansas Bankers Surety Co., supra note 4. See, also, Neb. Rev. Stat. 

§ 25-603 (Reissue 2016) (defendant in “any case” has right to proceed to 

trial on counterclaim or setoff “although the plaintiff may have dismissed 

the action or failed to appear”).

12 Holste, supra note 9; Schroeder v. Schroeder, 223 Neb. 684, 392 N.W.2d 

787 (1986); Dawson v. Papio Nat. Resources Dist., 210 Neb. 100, 313 

N.W.2d 242 (1981), modified on denial of rehearing 210 Neb. 612, 316 

N.W.2d 311 (1982).

13 See, Holste, supra note 9; Horton v. State, 63 Neb. 34, 88 N.W. 146 

(1901).

14 See Holste, supra note 9 (court can deny party’s voluntary dismissal 

where party is necessary party to another claim in same action). See, also, 

Vose v. Müller, 48 Neb. 602, 67 N.W. 598 (1896) (explaining court can 

deny plaintiff’s voluntary dismissal in replevin action if plaintiff obtained 

possession of property through prejudgment order of delivery).

15 See, Holste, supra note 9; Schroeder, supra note 12; Dawson, supra note 

12; Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1951); Blue River 

Power Co. v. Hronik, 116 Neb. 405, 217 N.W. 604 (1928).

16 Kansas Bankers Surety Co., supra note 4, 263 Neb. at 978, 644 N.W.2d at 

870, quoting Feight, supra note 15. Accord Dawson, supra note 12.
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we explain below, there was a final submission that precluded 

voluntary dismissal under § 25-601, and a setoff had been filed 

that precluded voluntary dismissal under § 25-602.

(a) Final Submission Under § 25-601

Section 25-601 provides that a plaintiff may dismiss an 

action without prejudice any time before final submission to 

the jury or the court. Millard Gutter claims that its voluntary 

dismissal was filed before final submission for purposes of 

§ 25-601, because the breach of contract claim had not yet 

been submitted to the jury. But Millard Gutter’s argument 

ignores the fact that at the time it filed its dismissal, summary 

judgment had been entered on three of its four claims.

We have not squarely addressed whether a summary judgment motion can constitute a final submission for purposes of 

§ 25-601. But our case law demonstrates that a final submission can occur on a motion.

In a bench trial, we have treated a motion for directed 

verdict at the close of the plaintiff’s case as a final submission preventing voluntary dismissal under § 25-601.17 And in 

a jury trial, we have treated a defendant’s motion for directed 

verdict as a final submission under § 25-601 once the parties argued their positions on the motion.18 In doing so, we 

reasoned that a motion for directed verdict is a final submission that limits the right of voluntary dismissal, because 

“the court is called upon to determine as a matter of law 

whether there are any issues arising from the facts submitted which present a jury question.”19 This same rationale 

applies to motions for summary judgment. We have also 

explained that if the court overrules the motion for directed 

verdict, there is no longer a final submission and the plaintiff 

17 See Gydesen v. Gydesen, 188 Neb. 538, 198 N.W.2d 67 (1972).

18 See, Collection Specialists v. Veseley, 238 Neb. 181, 469 N.W.2d 549 

(1991); Miller v. Harris, 195 Neb. 75, 236 N.W.2d 828 (1975); Fronk v. 

Evans City Steam Laundry Co., 70 Neb. 75, 96 N.W. 1053 (1903).

19 Miller, supra note 18, 195 Neb. at 78, 236 N.W.2d at 830.
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regains the right to dismiss the action if he or she chooses, 

because at that point, “fact issues remain to be determined 

by the jury, and those issues have not yet been submitted to 

the jury.”20

To date, our only case addressing summary judgment and 

§ 25-601 is Kansas Bankers Surety Co. v. Halford.

21 In that 

case, the defendant filed a motion for summary judgment and 

submitted a brief to the court in support. On the day the plaintiff’s brief was due, the plaintiff instead filed a dismissal without prejudice, which the court granted that same day. On those 

facts, we concluded the plaintiff retained the statutory right to 

voluntary dismissal without prejudice, because the defendant 

“had not filed a setoff or counterclaim” and “[t]here was no 

relief requested by [the plaintiff] that was pending at the time 

of [the] dismissal other than [the defendant’s] motion for summary judgment . . . .”22

Our statement regarding summary judgment could have 

been more precise, but we take this opportunity to clarify that 

we were not suggesting such a motion could not be a final 

submission under § 25-601. Rather, we were emphasizing that 

a final submission does not occur until argument is complete 

or has been waived; and where argument is allowed by brief, 

final submission will not occur until the briefing is complete 

or until the time for submitting briefs has expired.23 Because 

the voluntary dismissal in Kansas Bankers Surety Co. was 

filed before the time for briefing had expired, the summary 

judgment motion was not a final submission for purposes of 

§ 25-601.

[8] We now hold, as we have with motions for directed 

verdict, that a motion for summary judgment can be a final 

20 Id.

21 Kansas Bankers Surety Co., supra note 4.

22 Id. at 979, 644 N.W.2d at 871.

23 See Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 259 N.W. 

367 (1935).
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submission that will prevent voluntary dismissal under 

§ 25-601. In this case, the district court granted summary 

judgment on three of Millard Gutter’s four claims; thus, there 

was a final submission regarding some, but not all, of Millard 

Gutter’s claims. In this respect, we emphasize that a final submission should not be confused with a final judgment.

Here, the district court did not direct the entry of final 

judgment pursuant to § 25-1315(1), so its ruling on the summary judgment motions was the product of a final submission, but was not a final judgment for purposes of appeal.24

Consequently, the district court was free to revise or vacate 

the summary judgments at any time prior to entry of judgment 

adjudicating all of the claims and rights of the parties.25

Had the court here revised or set aside the summary judgments, it may have affected our final submission determination under § 25-601. But the court’s judgment in this case did 

neither. To the contrary, the district court’s judgment not only 

incorporated by express reference its prior summary judgment 

rulings in favor of American Family, but also excepted those 

prior rulings from the dismissal without prejudice.

Because the summary judgments in favor of American 

Family were the product of final submissions that were not 

revised or set aside before Millard Gutter’s voluntary dismissal 

was filed, Millard Gutter had no statutory right under § 25-601 

to voluntarily dismiss these claims without prejudice.26

(b) Setoff Under § 25-602

[9] Millard Gutter’s right to voluntary dismissal of its 

remaining breach of contract claims was affected by § 25-602. 

As previously stated, that statute gives plaintiffs in district 

court the right to dismiss their action without prejudice, upon 

24 See, John P. Lenich, There’s No Escape: The Plaintiff’s Right to Dismiss 

After the Submission of a Motion for Summary Judgment or a Motion to 

Dismiss in Nebraska, 1 Neb. L. Rev. Bull. 31 (2009).

25 See § 25-1315(1).

26 Accord Lenich, supra note 24.
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payment of costs, when no counterclaim or setoff has been 

filed by the opposing party.

In this case, the answer filed by American Family included 

allegations that it was entitled to a setoff for payments previously made to the homeowners in the event it was determined 

that additional sums were owed under the insurance contracts. 

Consequently, to the extent Millard Gutter sought voluntary 

dismissal of its remaining breach of contract claims, it had 

no right to do so under § 25-602, because a setoff related to 

those claims was filed by American Family and American 

Family was ready to proceed to trial on the setoffs.27 Of 

course, in response to Millard Gutter’s filing, the court had 

discretion to grant a dismissal without prejudice,28 which it 

ultimately did as to the breach of contract claims but not as 

to the claims on which summary judgment had been granted 

as a matter of law.

Given the procedural posture of this case at the time Millard 

Gutter filed its dismissal, it had no statutory right to voluntary 

dismissal under either § 25-601 or § 25-602. Consequently, the 

district court’s authority to make further rulings in the case was 

unaffected by the filing, and Millard Gutter’s first assignment 

of error is without merit.

2. Taxable Costs

The district court’s judgment taxed “all court costs” to 

Millard Gutter and, in addition, ordered it to pay $1,650 

for technology expenses incurred by American Family and 

$2,000 to “reimburse the tax payers of Douglas County” for 

the expenses associated with bringing in 40 jurors for trial. 

On appeal, Millard Gutter argues that neither the technology 

expenses nor the expenses of securing jurors are properly taxed 

as costs.

[10,11] Since as early as 1922, this court has recognized that 

litigation expenses are not recoverable costs unless provided 

27 See § 25-603.

28 See, e.g., Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948).
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for by statute or a uniform course of procedure.29 And while 

our cases have not always been consistent in their treatment of 

taxable costs, we recently recommitted to the basic principle 

that “it is within the province of the Legislature to designate 

specific items of litigation expense which may be taxed as 

costs.”30 To that end, we have expressly disapproved of our 

prior cases which permitted the recovery of litigation expenses 

without an explicit basis in statute or uniform procedure.31

In an action for the recovery of money, taxable costs upon 

final judgment are governed by Neb. Rev. Stat. §§ 25-1708 and 

25-1710 (Reissue 2016). Section 25-1708 governs costs upon 

judgment in favor of a plaintiff, and § 25-1710 governs costs 

upon judgment in favor of a defendant. Both statutes allow for 

the recovery of “costs,” but neither specifies which costs are 

recoverable. Under such circumstances, we have held a party 

may recover “the costs of the filing of the action, and any 

other expenses that are specifically delineated as taxable costs 

by statute.”32

Here, American Family obtained a judgment in its favor 

on three of the four claims asserted by Millard Gutter. To the 

extent the judgment here directed Millard Gutter to pay “all 

court costs,” Millard Gutter assigns no error. Our analysis is 

limited to whether a statute or uniform course of procedure 

authorized the district court to tax as costs the expenses associated with courtroom technology or securing jurors. We find no 

such authorization.

(a) Technology Expenses

American Family hired a company to equip the courtroom with electronics and display screens for use during the 

29 See, McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d 642 

(2015), citing Toop v. Palmer, 108 Neb. 850, 189 N.W. 394 (1922).

30 City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 235, 795 

N.W.2d 256, 260 (2011).

31 McGill, supra note 29.

32 Id. at 95, 864 N.W.2d at 661.
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scheduled trial. The expense for this service was stipulated to 

be $1,650. There is no dispute that the charges were fair and 

reasonable, and no claim that the presentation of evidence 

would not have been enhanced by the use of such technology. 

The question presented is whether litigation expenses associated with courtroom technology are properly taxable as costs.

[12] In City of Falls City v. Nebraska Mun. Power Pool,

33

this court specifically held that the electronic presentation of 

evidence is not a taxable cost, noting that no Nebraska statute 

or uniform course of procedure authorizes it as such. We are 

aware that federal courts have allowed taxation of costs associated with the electronic display of trial exhibits as a form 

of “exemplification” under 28 U.S.C. § 1920 (2012),34 but 

Nebraska has no corollary to this federal statute. Therefore, we 

must find the district court abused its discretion in taxing these 

technology expenses as costs.

(b) Jury Expenses

The parties stipulated that the cost of bringing in 40 prospective jurors for the trial in this case was $2,000. The 

district court found that “under the circumstances it is fair, 

just, and equitable to order [Millard Gutter] to pay such costs 

and reimburse the tax payers of Douglas County, Nebraska.” 

Accordingly, as part of the judgment, Millard Gutter was 

directed to pay $2,000 to the clerk of the Douglas County 

District Court.

[13] Under Nebraska law, the “[p]ayment of jurors for 

service in the district and county courts shall be made by the 

county.”35 Each juror is statutorily entitled to receive $35 for 

each day “employed in the discharge of his or her duties,” 

plus mileage at the statutory rate “for each mile necessarily 

33 City of Falls City, supra note 30.

34 See id. See, also, e.g., Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748 

(8th Cir. 2006).

35 Neb. Rev. Stat. § 33-138(3) (Reissue 2016).
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traveled.”36 The statute also permits jurors to voluntarily waive 

such payment.37

Millard Gutter argues that the expense of bringing in jurors 

is a governmental cost and not a cost properly taxable to the 

parties. Millard Gutter notes that in criminal cases, we have 

expressly held it is error to tax such costs38 and further argues 

there is no statute or uniform procedure that permits a court to 

tax jury expenses as costs in a civil case.

American Family counters that juror compensation may 

properly be taxed as costs, and relies on our reasoning in 

Frazer v. Myers39 as support for this proposition. In Frazer, the 

jury returned a verdict for the plaintiff in a breach of contract 

case. The court’s judgment directed each party to pay their own 

costs, but, in addition, taxed to the defendant a $5 “jury fee” 

and a $1 “trial fee.”40 The defendant asked that these costs be 

“retaxed” against the plaintiff, and the trial court refused.41 On 

appeal, we found this was error, reasoning:

Plaintiff voluntarily went into court and demanded a trial 

and judgment upon his cause of action. Defendant by the 

process of the court was compelled to appear. Plaintiff 

could not obtain his judgment without a trial. He could 

not have a trial without a jury, unless the intervention 

of a jury was waived, not only by himself, but by the 

defendant. No cases in point are cited, and we have 

36 § 33-138(1).

37 § 33-138(4).

38 See, State ex rel. City of St. Paul v. Rutten, 177 Neb. 633, 130 N.W.2d 

558 (1964) (error to tax convicted defendant with payment of juror 

compensation, meals, and mileage); State v. Jungclaus, 176 Neb. 641, 126 

N.W.2d 858 (1964) (error to tax convicted defendant with paying for juror 

meals, lodging, and mileage because no statute authorized taxing such 

items as costs).

39 Frazer v. Myers, 95 Neb. 194, 145 N.W. 357 (1914).

40 Id. at 197, 145 N.W. at 358.

41 Id.
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neither the time nor inclination to look for them, but 

as a case of first impression it appears to us quite clear 

that these two items were costs made by plaintiff, and, 

under the judgment of the court, that each party should 

pay his own costs, they should have been taxed against 

the plaintiff.42

The reasoning in Frazer is not compelling support for the 

proposition that jury expenses are properly taxable as costs. 

More importantly, Frazer is contrary to our recent reaffirmation of the principle that “it is within the province of the 

Legislature to designate specific items of litigation expense 

which may be taxed as costs”43 and our express disapproval of 

prior cases that permitted recovery of litigation expenses without an explicit basis in statute or uniform procedure.44

Douglas County filed an amicus curiae brief, directing our 

attention to Neb. Rev. Stat. § 25-1711 (Reissue 2016). That 

statute applies in equity actions, and permits an appellate court, 

in its discretion, to “tax as costs the actual fees and expenses 

necessitated by such jury [where a jury is demanded in the 

district court] if the court finds that the appeal was taken 

or the original filing was made for a frivolous or capricious 

reason.”45 Douglas County concedes this statute does not apply 

to the present case, but suggests the statute shows that the 

Legislature has, under certain circumstances, defined taxable 

costs to include jury expenses.

Section 25-1711 illustrates that when the Legislature wants 

to make jury fees and expenses a taxable cost, it knows how 

to do so. To date, it has authorized only appellate courts to 

tax jury fees and expenses, and then only in very limited 

42 Id.

43 City of Falls City, supra note 30, 281 Neb. at 235, 795 N.W.2d at 260.

44 See McGill, supra note 29.

45 See Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb. 283, 329 

N.W.2d 97 (1983) (reiterating § 25-1711 applies to equitable actions—not 

those involving recovery of money).
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circumstances. Because § 25-1711 does not apply—either factually or procedurally—to this case, it provides no authority for 

taxing Millard Gutter with jury fees and mileage.

Finally, we are urged by American Family and Douglas 

County to conclude that even if no other statute authorizes a 

district court to tax jury expenses as costs, it is permissible to 

assess jury costs against a party who brings or defends a civil 

action that alleges a claim or defense which a court determines 

is frivolous or made in bad faith under § 25-824. We express no 

opinion on whether jury costs can be assessed under § 25-824, 

because there was no finding of frivolousness in this case that 

would bring this action within the purview of that statute. We 

also express no opinion on whether there are any circumstances 

under which a district court, as a court of general jurisdiction 

having the inherent power to do all things necessary for the 

proper administration of justice and equity within the scope 

of its jurisdiction,46 might impose upon a party the expense 

incurred by a county to provide a jury panel in a civil case. 

Although on appeal American Family alludes to this inherent 

authority, the district court based its decision on its authority to 

tax costs and not upon its inherent power.

Nebraska law mandates that jurors shall be paid “by the 

county”47 for their service in district court. The parties direct us 

to no other statute that authorizes a trial court to tax, as costs 

in a civil action, the sums paid to pay jurors for their service 

and mileage. We share the trial court’s frustration that Millard 

Gutter waited until 40 prospective jurors were present at the 

courthouse to dismiss its remaining claims, and we do not 

condone the needless waste of taxpayer resources that resulted 

from this tactic. But we are also mindful that shifting the 

expense of juror fees and mileage from the government to the 

parties under certain circumstances could have a chilling effect 

46 See Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762, 336 N.W.2d 

312 (1983).

47 § 33-138(3).
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on exercising the constitutional right to a jury trial.48 Questions 

of whether, or under what circumstances, the governmental 

expense of juror fees and mileage should be taxed as costs in a 

civil action are matters of public policy in the province of the 

Legislature.49 In the absence of a statute or uniform course of 

procedure that authorized the district court to tax jury expenses 

as costs, we must find the district court abused its discretion in 

awarding these costs.

3. Motion to Alter or

Amend Judgment

Millard Gutter assigns the trial court erred in denying its 

motion to alter or amend the order taxing costs. Given our 

resolution of this appeal, it is unnecessary to address this 

assignment.50

V. CONCLUSION

At the time Millard Gutter filed its dismissal, it had no 

statutory right to voluntary dismissal under either § 25-601 

or § 25-602. For that reason, the district court’s authority to 

make further rulings in the case was unaffected by that filing. However, because there is no statute or uniform course 

of procedure authorizing the district court to tax as costs the 

expenses associated with courtroom technology or juror fees 

and mileage, we must find the district court abused its discretion in taxing such expenses as costs. We therefore reverse the 

judgment of the district court to the extent it taxed such costs, 

and in all other respects, we affirm.

Affirmed in part, and in part reversed.

Wright and Kelch, JJ., not participating.

48 See Neb. Const. art. I, § 6.

49 See City of Falls City, supra note 30.

50 In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018) (appellate 

court not obligated to engage in analysis unnecessary to adjudicate case 

and controversy before it).