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Nebraska Supreme Court Advance S

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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

Cite as 294 Neb. 400

State of Florida, ex rel. Department of Insu

the State of Florida, receiver for United S

Assurance Company, a Florida corp

authorized to transfer an insurance bu

in Florida, appellee, v. Countrywide 

Insurance Agency, Inc.

corporation, et al., appellees, 

William E. Gast, appell

___ N.W.2d ___

Filed August 5, 2016. No. S-15-515.

1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter 

of law.

2. Attorney and Client. Persons not licensed to practice law in Nebraska 

are prohibited from prosecuting an action or filing papers in the courts 

of this state on behalf of another.

3. Standing: Claims: Parties. To have standing, a litigant must assert the 

litigant’s own rights and interests.

4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a judgment, decree, or 

final order entered by the court from which the appeal is timely taken.

5. Jurisdiction: Appeal and Error. Where the court from which an 

appeal was taken lacked jurisdiction, the appellate court acquires no 

jurisdiction.

6. Jurisdiction: Recusal. Where an attorney pursues a motion for recusal 

that is frivolous or made in bad faith, the district court has jurisdiction 

to enter a sanction under Neb. Rev. Stat. § 25-824 (Reissue 2008) when 

it is timely requested, regardless of whether the district court lacked 

jurisdiction to adjudicate the merits of the underlying dispute.

7. Appeal and Error. To be considered by an appellate court, an error 

must be both specifically assigned and specifically argued in the brief of 

the party asserting the error.

Nebraska Supreme Court Online Library

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

08/05/2016 09:11 AM CDT
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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

Cite as 294 Neb. 400

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

William E. Gast, pro se.

Robert F. Craig and Anna M. Bednar, of Robert F. Craig, 

P.C., for appellee State of Florida.

Heavican, C.J., Wright, Miller-Lerman, Cassel, St

Kelch, J

Cassel, J.

I. INTRODUCTION

William E. Gast appeals from a district court order sanctioning him for filing a frivolous motion to recuse the trial judge. 

Gast challenges the district court’s jurisdiction to enter the 

order. We conclude that the district court had jurisdiction to 

sanction Gast for a frivolous motion, regardless of whether it 

had jurisdiction over the underlying case. We therefore affirm 

the district court’s order.

II. BACKGROUND

1. Procedural Hist

This case has a long and complicated procedural history, 

most of which is irrelevant in this appeal. Briefly summarized, 

this action began in 1998, when the State of Florida filed a 

complaint on the relation of the Department of Insurance of 

the State of Florida, which was appointed as receiver of United 

Southern Assurance Company, an insolvent insurance company. Florida named Countrywide Truck Insurance Agency, 

Inc. (Truck), Countrywide Insurance Agency, Inc. (Agency), 

and David L. Fulkerson as defendants. It alleged that Truck 

owed money to United Southern Assurance Company and that 

Fulkerson used Truck and Agency to convert that money to his 

personal use.
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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

Cite as 294 Neb. 400

In the course of the litigation, this case reached this court 

at least three times—in 1999,1 2005,2 and 2008.3 In 2008, we 

reversed an order directing a verdict in favor of Florida. The 

state of the record makes it difficult to discern what happened 

next. Gast did not file a praecipe for a bill of exceptions in 

this appeal, and he does not cite to a bill of exceptions in 

his brief.

The parties’ pleadings and the district court’s orders in the 

transcript indicate that Fulkerson died in 2009 and that probate proceedings began. Diederike M. Fulkerson, Fulkerson’s 

wife, became personal representative of Fulkerson’s estate. 

And the estate was added as a defendant in this case. Through 

Diederike’s filings in the probate proceeding, Florida discovered that Diederike was a partner or co-owner in Truck and 

Agency and that Fulkerson had transferred certain funds or 

assets to her before his death. Florida filed a motion for revivor in district court requesting that the court revive the action 

and allow it to substitute Diederike as a defendant. The district 

court sustained the motion for revivor, and Florida dismissed 

Fulkerson’s estate as a party. At the conclusion of the probate 

proceedings, the probate court discharged Florida’s cause of 

action against Fulkerson’s estate.

2. Orders at Iss

(a) Judgment

On May 12, 2015, the district court entered an order against 

Truck, Agency, and Diederike. It concluded that Fulkerson 

fraudulently transferred the money Truck owed United 

1 State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113, 602 

N.W.2d 432 (1999).

2 State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 

N.W.2d 905 (2005).

3 State of Florida v. Countrywide Truck Ins. Agency, 275 Neb. 842, 749 

N.W.2d 894 (2008).
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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

Cite as 294 Neb. 400

Southern Assurance Company to Agency and that he later 

transferred it to himself and Diederike.

Agency and Diederike, whom Gast was then representing, 

filed a notice of appeal on May 27, 2015, which stated their 

intention to prosecute an appeal from the May 12 order. The 

appeal was docketed in this court under case No. S-15-476 

(first appeal). We later dismissed that first appeal for failure to 

file briefs.

(b) Sanctions

On May 29, 2015, the district court entered an order sanctioning Gast (sanctions order) for filing a frivolous motion to 

recuse. It concluded that Gast’s motion to recuse “was groundless and frivolous,” and it ordered Gast to personally pay 

Florida $15,000 in attorney fees.

Gast filed a notice of appeal on June 5, 2015, and the 

appeal was docketed in this court as case No. S-15-515 

(second appeal). The notice of appeal stated that Gast, plus 

Agency and Diederike, intended to prosecute an appeal from 

the sanctions order. But by the time that Gast filed a brief in 

the second appeal, his license to practice law in the State of 

Nebraska had been suspended. Because it was not clear from 

the brief whether Gast filed it in his own behalf or in a representative capacity for Agency and Diederike, we issued an 

order to show cause why the brief should not be stricken as 

having been filed by a person not authorized to practice law. 

After Gast responded, we ordered that we would consider 

Gast’s brief as filed in a pro se capacity on behalf of Gast 

only, and not in a representative capacity as an attorney for 

any other party. Agency and Diederike did not file a separate brief.

III. ASSIGNMENTS OF ERROR

Gast assigns that the district court erred in (1) “entertaining subject matter jurisdiction and entering judgment against 

. . . Diederike . . . and her attorney, . . . Gast”; (2) denying the 

motion to recuse; and (3) failing to sanction Florida.
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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

Cite as 294 Neb. 400

IV. STANDARD OF REVIEW

[1] An appellate court determines jurisdictional questions 

that do not involve a factual dispute as a matter of law.4

V. ANALYSIS

[2,3] First, we note that we cannot address Gast’s second 

and third assignments of error, because they assert claims 

belonging to Agency and Diederike. Gast cannot assert these 

claims on their behalf, because at the time he filed the brief, 

his license to practice law had been suspended. Persons not 

licensed to practice law in Nebraska are prohibited from prosecuting an action or filing papers in the courts of this state 

on behalf of another.5 And Gast has no standing to assert the 

second and third assigned errors in his own behalf. To have 

standing, a litigant must assert the litigant’s own rights and 

interests.6 As a nonparty in the underlying case, Gast has no 

personal right or interest related to the court’s denial of the 

motion to recuse or its failure to sanction Florida.

We therefore turn to Gast’s first assignment of error. Gast 

assigns that the district court erred in entering judgment against 

Diederike and against him, because it lacked subject matter 

jurisdiction. Again, we will not address Gast’s claims regarding Diederike, because he cannot assert claims on her behalf. 

Therefore, we determine only whether the district court had 

jurisdiction to sanction Gast.

[4] Gast’s argument does not contest the finality of the 

sanctions order. For an appellate court to acquire jurisdiction of an appeal, there must be a judgment, decree, or final 

order entered by the court from which the appeal is timely 

taken.7 When the district court entered the sanctions order, 

4 Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).

5 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015).

6 Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).

7 City of Ashland v. Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 

(2006).
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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

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the court had already disposed of all of the claims raised in 

the underlying litigation. Thus, the sanctions order was final 

and appealable.8

[5] Rather, Gast argues that the district court lacked jurisdiction of the underlying dispute. He premises the lack of the 

district court’s jurisdiction on the probate court’s discharge 

of Florida’s claim against Fulkerson. He then argues that 

Fulkerson’s estate was a necessary party. He does not make 

any argument regarding the sanctions order in his brief. But 

through his challenge to the district court’s jurisdiction in the 

underlying case, he impliedly argues that the district court 

lacked jurisdiction to sanction him. And, of course, where the 

court from which an appeal was taken lacked jurisdiction, the 

appellate court acquires no jurisdiction.9

We conclude that whether the district court had jurisdiction in the underlying case is irrelevant, because the district 

court had jurisdiction to sanction Gast. We are persuaded by 

the U.S. Supreme Court’s analysis in Willy v. Coastal Corp.,10

where the Court held that a federal district court order sanctioning an attorney pursuant to Fed. R. Civ. P. 11 may stand, 

even where it is later determined that the district court lacked 

subject matter jurisdiction over the underlying case. The 

Court reasoned that attorney sanctions are authorized by 

the Federal Rules of Civil Procedure and that they are collateral to the merits of the case. It stated: “‘[An] imposition 

of a Rule 11 sanction is not a judgment on the merits of an 

action. Rather, it requires the determination of a collateral 

issue: whether the attorney has abused the judicial process, 

and, if so, what sanction would be appropriate.’”11 It also 

8 See Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).

9 Deuth v. Ratigan, 256 Neb. 419, 590 N.W.2d 366 (1999).

10 Willy v. Coastal Corp., 503 U.S. 131, 112 S. Ct. 1076, 117 L. Ed. 2d 280 

(1992).

11 Id., 503 U.S. at 138 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 

384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)).
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STATE OF FLORIDA v. COUNTRYWIDE TRUCK INS. AGENCY

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reasoned that “the maintenance of orderly procedure” justifies 

upholding the sanction.12

The Supreme Court’s reasoning in Willy applies to sanctions 

imposed on attorneys pursuant to Neb. Rev. Stat. § 25-824 

(Reissue 2008). This section authorizes district courts to assess 

attorney fees against an attorney “who has brought or defended 

a civil action that alleges a claim or defense which a court 

determines is frivolous or made in bad faith.”13 Like Fed. R. 

Civ. P. 11, an award of attorney fees under § 25-824 does not 

adjudicate the merits of the case. Rather, it reflects the court’s 

determination that the attorney abused the judicial process by 

pursuing a claim that is frivolous or made in bad faith.

[6] We hold that where an attorney pursues a motion for 

recusal that is frivolous or made in bad faith, the district court 

has jurisdiction to enter a sanction under § 25-824 when it is 

timely requested, regardless of whether the district court lacked 

jurisdiction to adjudicate the merits of the underlying dispute. 

Accordingly, we conclude that the district court had jurisdiction to sanction Gast.

[7] Gast does not question the factual basis for the sanction 

or the amount of the sanction imposed. To be considered by 

an appellate court, an error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

error.14 Thus, we do not consider either of these matters.

VI. CONCLUSION

The district court had jurisdiction to sanction Gast for filing 

a frivolous motion. We therefore affirm the court’s order.

Affirmed

Connolly, J., not participatin

12 Id., 503 U.S. at 137.

13 § 25-824(2).

14 In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781 

(2015).