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STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS

Cite as 302 Neb. 606

State of Nebraska ex rel. Douglas J. Peterson, 

Attorney General, appellee, v. Creative

Community Promotions, LLC, and

Joel Bieschke, appellants.

___ N.W.2d ___

Filed March 22, 2019. No. S-18-321.

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. 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.

3. Attorney Fees: Appeal and Error. A trial court’s decision awarding or 

denying attorney fees will be upheld absent an abuse of discretion.

4. Summary Judgment: Appeal and Error. After trial, the merits should 

be judged in relation to the fully developed record, not whether a 

different judgment may have been warranted on the record at summary judgment.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed in part, and in part dismissed.

Siegfried H. Brauer for appellants.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellee.

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

Papik, JJ.

Nebraska Supreme Court Online Library

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

04/19/2019 09:06 AM CDT
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STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS

Cite as 302 Neb. 606

Papik, J.

After years of litigation, the State of Nebraska voluntarily 

dismissed claims it had asserted under Nebraska’s Consumer 

Protection Act and the Uniform Deceptive Trade Practices Act 

against Creative Community Promotions, LLC, and its owner 

and operator, Joel Bieschke (collectively CCP). CCP claimed 

that after the State’s dismissal, it was entitled to attorney fees 

under those statutes. The district court denied CCP’s request 

for attorney fees, and CCP now appeals. Because both statutes 

authorize an award of attorney fees only to a “prevailing party” 

and because we find that CCP does not qualify as such, we 

affirm, in part. We also find that we lack jurisdiction to review 

orders vacating summary judgment in favor of CCP and overruling CCP’s subsequent motion for summary judgment and 

therefore dismiss, in part.

BACKGROUND

Allegations of Parties.

The State of Nebraska commenced this action against 

CCP in September 2014. It alleged that CCP promoted and 

sold ticket packages to a January 2014 concert in Omaha, 

Nebraska. The ticket packages were to include transportation 

from various locations in Nebraska to Omaha, accommodations in Omaha, meals, and a concert ticket. The State alleged, 

however, that CCP did not secure all the necessary tickets to 

the concert and that many purchasers traveled to Omaha, only 

to learn they did not have concert tickets. The State alleged 

that while attempts were made to secure seating, many purchasers missed part of the concert, had to stand for portions 

of it, or were unable to watch the concert altogether. Based on 

these allegations, the State asserted claims under Nebraska’s 

Consumer Protection Act (hereinafter CPA), see Neb. Rev. 

Stat. § 59-1601 et seq. (Reissue 2010 & Cum. Supp. 2018), 

and the Uniform Deceptive Trade Practices Act (hereinafter 

UDTPA), see Neb. Rev. Stat. § 87-301 et seq. (Reissue 2014 

& Cum. Supp. 2018).
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STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS

Cite as 302 Neb. 606

CCP generally denied the State’s allegations. Additionally, 

CCP contended that Bieschke had made arrangements to purchase tickets to the concert from an individual who obtained 

and resold entertainment tickets, but that the individual failed 

to provide the tickets. CCP contended that there had been no 

violation of the CPA or the UDTPA. In its answer, it asked 

that the State’s action be dismissed and that CCP be awarded 

attorney fees.

Procedural History.

The parties proceeded to litigate the case and encountered 

various twists and turns along the way. Notably, in October 

2015, the district court entered summary judgment in favor of 

CCP. In a written order, the court explained that the evidence 

demonstrated that CCP intended to provide the tickets to its 

customers and thus did not violate the CPA or the UDTPA. 

Shortly thereafter, CCP filed a “Motion for Statutory Attorneys 

Fees,” in which it claimed a right to attorney fees under 

§§ 59-1608 and 87-303.

Before CCP’s attorney fees motion was heard and ruled 

upon, however, the State moved for reconsideration of the 

summary judgment order. On April 1, 2016, the State’s motion 

was granted in a written order. The district court stated that 

after reviewing its prior order, it determined that it had failed 

to draw all inferences in favor of the State as the nonmoving 

party. Finding that summary judgment was inappropriate, the 

district court vacated its prior order of summary judgment in 

favor of CCP.

With the court’s previous summary judgment order vacated, 

the parties returned to the litigation battlefield. CCP moved for 

summary judgment again and this time was unsuccessful. CCP 

later filed a document styled as a “Motion to Dismiss,” and it, 

too, was unsuccessful.

Finally, on January 10, 2018, more than 3 years after it initiated the action, the State filed a notice of voluntary dismissal. 

The State asserted that it was “voluntarily dismiss[ing] the 
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Cite as 302 Neb. 606

above captioned matter with prejudice.” In the notice, the State 

specified that it had determined that settlement was “impossible” and that any financial recovery for Nebraska consumers 

was “extremely unlikely.” The notice concluded as follows: 

“As such, the [State] has made a determination that its limited 

resources can be spent more effectively on other matters than 

by pursuing this case further and respectfully requests that 

prejudice attach to this dismissal.”

One week later, on January 17, 2018, CCP filed a notice of 

hearing regarding its motion for statutory attorney fees. The 

district court proceeded to hold a hearing on the matter and 

received briefs from the parties regarding whether CCP was 

entitled to attorney fees. In a subsequent written order, the 

district court concluded that it had jurisdiction to decide CCP’s 

claim for attorney fees notwithstanding the State’s voluntary 

dismissal. The district court went on to conclude, however, that 

CCP was not entitled to attorney fees under either the CPA or 

the UDTPA. It found that the UDTPA authorizes an award of 

attorney fees only if “the party complaining of a deceptive trade 

practice has brought an action which he knew to be groundless” and that CCP was not entitled to attorney fees under 

the UDTPA, because the State’s action was not “groundless.” 

The district court found that CCP was not entitled to attorney 

fees under the CPA, because the CPA authorizes the award of 

attorney fees only to a “prevailing party,” § 59-1608(1), and it 

found that the State’s voluntary dismissal did not make CCP a 

prevailing party for purposes of the statute.

ASSIGNMENTS OF ERROR

CCP assigns a number of errors, which can be consolidated 

and restated into three: (1) that the district court erred in 

vacating its entry of summary judgment in favor of CCP, (2) 

that the district court erred in denying CCP’s second motion 

for summary judgment, and (3) that the district court erred 

in not awarding attorney fees to CCP under the UDTPA and 

the CPA.
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STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS

Cite as 302 Neb. 606

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. Millard Gutter Co. v. American Family Ins. Co., 

300 Neb. 466, 915 N.W.2d 58 (2018).

[2] 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. Id.

[3] A trial court’s decision awarding or denying attorney 

fees will be upheld absent an abuse of discretion. State ex 

rel. Stenberg v. Consumer’s Choice Foods, 276 Neb. 481, 755 

N.W.2d 583 (2008).

ANALYSIS

CCP’s Challenges to District Court’s 

Summary Judgment Rulings.

We begin by addressing CCP’s challenges to the district 

court’s summary judgment rulings. As noted above, CCP challenges both the district court’s order vacating its prior summary 

judgment in favor of CCP and its later order denying CCP’s 

motion for summary judgment. We conclude we lack jurisdiction to address either issue.

We have held that both the denial of a motion for summary 

judgment and an order vacating a previous entry of summary 

judgment are interlocutory rather than final orders and thus 

not immediately appealable. See, e.g., Doe v. Zedek, 255 

Neb. 963, 587 N.W.2d 885 (1999) (collecting cases holding 

that denial of motion for summary judgment is interlocutory 

and not final order); Otteman v. Interstate Fire & Cas. Co., 

Inc., 171 Neb. 148, 105 N.W.2d 583 (1960) (holding that 

order vacating summary judgment was interlocutory and not 

final order). See, also, Deines v. Essex Corp., 293 Neb. 577, 

879 N.W.2d 30 (2016) (holding that order vacating dismissal 

and reinstating case did not affect substantial right and was 

thus not appealable). CCP thus could not obtain review of 
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Cite as 302 Neb. 606

the district court’s summary judgment orders at the time they 

were entered.

[4] We have further observed that denials of summary judgment are not appealable or reviewable even after the conclusion of a case. See Doe v. Zedek, supra. As we have explained, 

after trial, “the merits should be judged in relation to the fully 

developed record, not whether a different judgment may have 

been warranted on the record at summary judgment.” Id. at 

969, 587 N.W.2d at 890. While we do not appear to have 

previously confronted the same question concerning an order 

vacating a prior grant of summary judgment, the same rationale would seem to suggest that review of such an order is also 

unavailable at the conclusion of a case.

We recognize that under the circumstances of this case, 

the State’s voluntary dismissal prevented a “fully developed 

record” from being formed, but we do not believe that makes 

the earlier summary judgment orders reviewable. For while a 

record was not developed, neither is there a merits determination for us to make on appeal. The State exercised its right to 

voluntarily dismiss its claims, and while CCP insisted that the 

district court take up its motion for attorney fees, an issue we 

discuss in more detail below, it did not otherwise object to the 

voluntary dismissal. The dismissal thus ended the controversy 

on the State’s claims, and they are no longer subject to appellate review. See State v. Dorcey, 256 Neb. 795, 592 N.W.2d 

495 (1999).

CCP’s Motion for Attorney Fees: 

Jurisdiction.

We now turn to CCP’s argument that the district court 

erred by denying its motion for attorney fees. And again, 

we are confronted with a jurisdictional issue. Here, the State 

argues that once it exercised its right to voluntarily dismiss 

its claims, the district court was without power to consider 

CCP’s motion for attorney fees. The State argues that because 

the district court was without jurisdiction to award attorney 
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Cite as 302 Neb. 606

fees, we are without jurisdiction to consider CCP’s entitlement to attorney fees on appeal. We disagree for reasons 

explained below.

The State claims it had a right to voluntarily dismiss its 

claims and thereby terminate the district court’s jurisdiction. 

We have recognized, however, that even when the plaintiff 

has the right to dismiss an action, trial courts have discretion 

to protect rights which “have accrued to [a] defendant as a 

result of the bringing of 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.” See 

Blue River Power Co. v. Hronik, 116 Neb. 405, 413, 217 N.W. 

604, 607 (1928). See, also, Millard Gutter Co. v. American 

Family Ins. Co., 300 Neb. 466, 915 N.W.2d 58 (2018); Feight 

v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1951).

CCP is claiming a right to attorney fees as a result of the 

State’s having brought this action against it. Our case law generally treats attorney fees, where recoverable, as an element of 

court costs. See Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 

356 (2002). And as noted above, we have previously recognized that even when a plaintiff seeks voluntary dismissal, trial 

courts have discretion to protect rights of the defendant that 

accrued as a result of the bringing of the action, including the 

recovery of costs “and the like.” For this reason, we believe 

the district court had the authority to consider CCP’s claim 

that it was entitled to an award of attorney fees notwithstanding the State’s voluntary dismissal.

We also observe that this case is not controlled by Kansas 

Bankers Surety Co. v. Halford, 263 Neb. 971, 644 N.W.2d 

865 (2002), a case in which we held that a district court did 

not have jurisdiction to grant the defendant an award of attorney fees after the plaintiff voluntarily dismissed. In that case, 

however, at the time the plaintiff sought to voluntarily dismiss 

with prejudice, the defendant had no pending motion for attorney fees. Under those circumstances, we held that once the 
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STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS

Cite as 302 Neb. 606

court dismissed the action, “nothing remained for the court to 

decide.” Id. at 980-81, 644 N.W.2d at 872.

The circumstances in this case are different from those in 

Halford. At the time the State sought to voluntarily dismiss, 

CCP had already filed a motion for attorney fees which had 

never been ruled upon. Because CCP claimed a right that 

the district court had the power to protect and because it had 

asserted that right prior to the State’s notice of voluntary dismissal, the district court had the jurisdiction to consider CCP’s 

claim for attorney fees.

CCP’s Motion for Attorney Fees: 

Merits.

This leaves the merits of CCP’s motion for attorney fees. 

CCP claims that the district court should have awarded it attorney fees pursuant to two different statutes, §§ 87-303(b) and 

59-1608(1). Section 87-303(b) provides as follows:

Costs shall be allowed to the prevailing party unless 

the court otherwise directs. The court in its discretion 

may award attorneys’ fees to the prevailing party if (1) 

the party complaining of a deceptive trade practice has 

brought an action which he or she knew to be groundless 

or (2) the party charged with a deceptive trade practice 

has willfully engaged in the trade practice knowing it to 

be deceptive.

Similarly, § 59-1608(1) states:

The Attorney General may bring an action in the name 

of the state against any person to restrain and prevent the 

doing of any act prohibited by the [CPA]. The prevailing 

party may, in the discretion of the court, recover the costs 

of such action including a reasonable attorney’s fee.

Both statutes authorize the award of attorney fees only to a 

“prevailing party.” We thus begin our analysis with whether 

CCP is a prevailing party. To answer that question, we must 

engage in statutory interpretation.
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STATE EX REL. PETERSON v. CREATIVE COMM. PROMOTIONS

Cite as 302 Neb. 606

Our basic principles of statutory interpretation generally 

require us to give statutory language its plain and ordinary 

meaning. See Village at North Platte v. Lincoln Cty. Bd. of 

Equal., 292 Neb. 533, 873 N.W.2d 201 (2016). As the U.S. 

Supreme Court has observed, however, “prevailing party” is 

a “legal term of art.” Buckhannon Board & Care Home, Inc. 

v. West Virginia Dept. of Health and Human Resources, 532 

U.S. 598, 603, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) 

(Buckhannon).

A legal term of art is a word or phrase having a specific, 

precise meaning in a given specialty apart from its general meaning in ordinary contexts. See Wisner v. Vandelay 

Investments, 300 Neb. 825, 916 N.W.2d 698 (2018). When 

legal terms of art are used in statutes, they are to be construed 

and understood according to their term of art meaning. See 

Davis v. Gale, 299 Neb. 377, 908 N.W.2d 618 (2018) (citing Neb. Rev. Stat. § 49-802(5) (Reissue 2010)). See, also, 

Hammond v. Stamps.com, Inc., 844 F.3d 909, 911 (10th Cir. 

2016) (“[w]hen Congress chooses to employ a term of legal 

art like this we typically assume it is employing its accepted 

meaning”).

In Buckhannon, the case in which the U.S. Supreme Court 

identified “prevailing party” as a term of art, it also explored 

the contours of that meaning. It explained that a “prevailing 

party” is “one who has been awarded some relief by the court.” 

Id., 532 U.S. at 603. Applying that concept, the Court held 

that the plaintiff seeking attorney fees as a “prevailing party” 

under federal statutes in the case before it did not qualify. It 

explained that even though the defendant in that case voluntarily ceased the activity challenged by the plaintiff’s suit, 

there was no “necessary judicial imprimatur” on the change 

in relationship. Id., 532 U.S. at 605 (emphasis in original). We 

have subsequently relied on Buckhannon to hold that when a 

defendant voluntarily ceases conduct challenged by a plaintiff’s suit without judicial involvement, the plaintiff does not 
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qualify as a “prevailing party” under 42 U.S.C. § 1988 (2012). 

See Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 

129 (2004).

Buckhannon, to be sure, involved different factual circumstances from the case at hand. In Buckhannon, the plaintiff 

brought suit, the defendant voluntarily changed its ways, and 

the case was dismissed as moot. Here, CCP defended itself 

and the State (eventually) dropped the suit. But while the circumstances are not exactly the same, they are alike in a crucial way. In both cases, one side surrendered and, as a result, 

the case concluded without any judicial determination as to 

whether the suit was meritorious. As Buckhannon explains, 

without such a judicial determination, there is no prevailing 

party. With this understanding of the term “prevailing party,” it 

quickly becomes clear that CCP does not qualify in this case. 

The State chose to voluntarily dismiss its claims before any 

judicial determination could be made as to their merits.

We note that we are not the first court to rely on the 

understanding of prevailing party set forth in Buckhannon to 

conclude that a defendant does not qualify merely because 

a plaintiff voluntarily dismissed a suit with prejudice. See, 

e.g., Bridgeport Music, Inc. v. London Music, U.K., 345 F. 

Supp. 2d 836 (M.D. Tenn. 2004); Bryant v. MV Transp., Inc., 

231 F.R.D. 480 (E.D. Va. 2005); Smalley v. Account Services 

Collections, Inc., No. 2:15cv1488, 2017 WL 1092678 (W.D. 

Pa. Mar. 23, 2017) (memorandum opinion); Righthaven LLC 

v. Hill, No. 1:11-cv-00211-JLK, 2011 WL 4018105 (D. Colo. 

Sept. 9, 2011) (unpublished opinion). In each of these cases, 

courts found that because the dismissal did not involve a 

grant of judicial relief, the defendant was not a prevailing party.

We acknowledge other cases, some of which are cited by 

CCP, in which defendants were awarded attorney fees as a 

“prevailing party” after a voluntary dismissal with prejudice. 

But we believe those cases are not inconsistent with the result 
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Cite as 302 Neb. 606

we reach today. To take one illustrative example, in Claiborne 

v. Wisdom, 414 F.3d 715 (7th Cir. 2005), the Seventh Circuit 

found that a defendant was a prevailing party after the plaintiff 

voluntarily dismissed. In that case, however, the plaintiff filed 

a motion to dismiss, presumably under Fed. R. Civ. P. 41(a)(2), 

and the trial court decided the dismissal should be with prejudice. In doing so, the trial court placed its “judicial imprimatur” on the dismissal. See, also, Highway Equipment Co., Inc. 

v. FECO, Ltd., 469 F.3d 1027 (Fed. Cir. 2006) (explaining that 

district court’s exercise of discretion to grant dismissal with 

prejudice under Fed. R. Civ. P. 41(a)(2) constitutes necessary 

judicial imprimatur to confer prevailing party status); Samsung 

Electronics Co., Ltd. v. Rambus, Inc., 440 F. Supp. 2d 495 

(E.D. Va. 2006) (same).

Unlike the cases discussed immediately above, the district 

court here did not order that the case be dismissed with prejudice or make any determination regarding the merits of the 

suit. In fact, the absence of any order from the district court 

dismissing the action with prejudice at least raises the question 

of whether the dismissal was, in fact, with prejudice. We recognize that the State’s notice of dismissal purported to dismiss 

with prejudice, but it also invoked Neb. Rev. Stat. § 25-601 

(Reissue 2016), a statute that refers only to dismissals without 

prejudice. It also requested that “prejudice attach to [its] dismissal,” but the district court never took any action to indicate 

that the dismissal was, in fact, with prejudice. We need not, 

however, resolve the question of whether prejudice attached to 

the State’s dismissal, because whether it was with or without 

prejudice, the district court did not find in favor of CCP on 

the merits or otherwise put its imprimatur on the outcome, 

and thus CCP was thus not a “prevailing party” under either 

§ 87-303(b) or § 59-1608(1).

Because CCP was not a “prevailing party” under § 87-303(b) 

or § 59-1608(1) and because both of those statutes authorize 

the award of attorney fees only to a “prevailing party,” we find 
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Cite as 302 Neb. 606

that the district court did not err in denying CCP’s motion for 

attorney fees.

CONCLUSION

As explained above, we lack jurisdiction to review CCP’s 

claim that the district court’s summary judgment orders were 

erroneous. While we do have jurisdiction to review CCP’s 

claim that the district court should have granted its motion for 

attorney fees, we find that the district court did not err in denying that motion. Accordingly, we dismiss the portion of the 

appeal seeking review of the court’s summary judgment orders 

and otherwise affirm.

Affirmed in part, and in part dismissed.

Freudenberg, J., not participating.