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same—it is the arrangement of those questions into the elements of negligence that has changed.

Peterson’s appeal was dismissed for failure to state a claim, 

with the district court’s concluding that Kings Gate owed no 

duty to Peterson. At this stage in the proceedings, we conclude 

that Peterson has stated a claim for relief that is plausible on 

its face and therefore survives a motion to dismiss. Kings Gate 

did owe a duty under § 40 of the Restatement; it remains for 

the finder of fact to determine whether Kings Gate breached 

that duty. As such, we reverse the decision of the district court 

granting Kings Gate’s motion to dismiss, and remand the cause 

for further proceedings.

CONCLUSION

The decision of the district court is reversed, and the cause 

is remanded for further proceedings.

 Reversed and remanded

further proceedings

Wright, J., not participating.

Credit Management Services, Inc., app

v. Lorinda Jefferson, appell

___ N.W.2d ___

Filed April 10, 2015. No. S-14-545.

1. Judgments: Costs: Appeal and Error. The standard of review for an award of 

costs is whether an abuse of discretion occurred.

2. 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.

3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which 

an appellate court must resolve independently of the trial court.

4. ____: ____. Absent a statutory indication to the contrary, an appellate court gives 

words in a statute their ordinary meaning.

5. ____: ____. An appellate court does not consider a statute’s clauses and phrases 

as detached and isolated expressions. Instead, the whole and every part of the 

statute must be considered in fixing the meaning of any of its parts.

6. Statutes. Statutes which change or take away a common-law right must be 

strictly construed.
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7. ____. Any statutory construction restricting or abolishing common-law rights 

should not be adopted, unless the plain words of the statute compel such result.

Appeal from the District Court for Douglas County, Dua

C. Dougherty, Judge, on appeal thereto from the County Cour

for Douglas County, Thomas K. Harmon, Judge. Judgment

District Court reversed, and cause remanded with directions.

John M. Guthery, of Perry, Guthery, Haase & Gessford, P.C., 

L.L.O., for appellant.

No appearance for appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Wright, J.

NATURE OF CASE

Under certain circumstances, Neb. Rev. Stat. § 25-1708 

(Cum. Supp. 2014) provides for the award of costs to plaintiffs 

in actions for the recovery of money. Pursuant to this statute, 

Credit Management Services, Inc. (CMS), filed a motion for 

costs in its action for the recovery of money against Lorinda 

Jefferson. She had voluntarily paid CMS’ claim after the action 

was filed but before a judgment was entered.

The county court interpreted § 25-1708 as precluding the 

award of costs to a plaintiff where he or she received a voluntary payment from the defendant after the action was filed 

but before a judgment was entered. The county court overruled CMS’ motion for costs, and on appeal, the district court 

affirmed the county court’s determination that CMS was not 

entitled to costs. We conclude that CMS was entitled to costs. 

Therefore, we reverse the order of the district court and remand 

the cause with directions.

SCOPE OF REVIEW

[1,2] The standard of review for an award of costs is whether 

an abuse of discretion occurred. White v. Kohout, 286 Neb. 

700, 839 N.W.2d 252 (2013). A judicial abuse of discretion 

exists when the reasons or rulings of a trial judge are clearly 
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untenable, unfairly depriving a litigant of a substantial right 

and denying just results in matters submitted for disposition. 

Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 

703 (2013).

[3] Statutory interpretation is a question of law, which we 

must resolve independently of the trial court. In re Interest of 

Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

FACTS

Jefferson owed $277.50 to a cash advance company, which 

assigned the debt to CMS. After unsuccessfully making a 

demand for payment, CMS filed a complaint for the recovery of money in county court. Prior to the entry of judgment, 

Jefferson voluntarily paid CMS the amount sought in the 

complaint.

On August 12, 2013, CMS filed a motion for costs pursuant 

to § 25-1708. CMS sought a judgment against Jefferson for the 

costs of the action, which totaled $56.06.

The county court overruled CMS’ motion for costs and dismissed CMS’ complaint with prejudice. The court determined 

that § 25-1708 excluded an award of costs “when there have 

been voluntary payments made after the action is filed ‘but 

before judgment.’” (Emphasis in original.)

CMS appealed the county court’s judgment to the district 

court. It assigned, consolidated and restated, that the county 

court erred in interpreting § 25-1708 to preclude the award of 

costs to CMS. On May 22, 2014, the district court affirmed the 

judgment of the county court.

CMS timely appeals. Pursuant to our statutory authority to 

regulate the dockets of the appellate courts of this state, we 

moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3) 

(Reissue 2008).

ASSIGNMENT OF ERROR

CMS assigns, consolidated and restated, that the district 

court erred in interpreting § 25-1708 to preclude the award of 

costs to CMS where Jefferson voluntarily paid CMS’ claim 

after the action was filed but before a judgment was entered.
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ANALYSIS

The question presented is whether a plaintiff in an action 

for the recovery of money is entitled to costs where he or 

she received a voluntary payment from the defendant after 

the action was filed but before a judgment was entered. 

To answer this question, we must interpret the language of 

§ 25-1708, which governs the award of costs to plaintiffs in 

such actions.

Section 25-1708 is an embodiment of the common-law rule 

that “[c]osts as a general rule are given to the prevailing party.” 

See Keller v. State, 184 Neb. 853, 856, 172 N.W.2d 782, 785 

(1969). Until 2009, § 25-1708 did not provide for any exceptions to this general rule. See § 25-1708 (Reissue 2008). It 

stated in its entirety:

Where it is not otherwise provided by this and other 

statutes, costs shall be allowed of course to the plaintiff, 

upon a judgment in his favor, in actions for the recovery 

of money only, or for the recovery of specific real or personal property.

See id.

In 2009, the Legislature amended § 25-1708. See 2009 Neb. 

Laws, L.B. 35, § 11. In its current form, § 25-1708 states:

Where it is not otherwise provided by this and other 

statutes, costs shall be allowed of course to the plaintiff, 

except as waived or released in writing by the plaintiff, upon a voluntary payment to the plaintiff after the 

action is filed but before judgment, or upon a judgment 

in favor of the plaintiff, in actions for the recovery of 

money only or for the recovery of specific real or personal property.

[4-7] The instant appeal presents our first opportunity to 

interpret § 25-1708 since it was amended. In doing so, we 

apply basic principles of statutory interpretation. Absent a 

statutory indication to the contrary, we give words in a statute their ordinary meaning. Coffey v. Planet Group, 287 Neb. 

834, 845 N.W.2d 255 (2014). “We do not consider a statute’s 

clauses and phrases ‘“‘as detached and isolated expressions.’”’ 

Instead, ‘“‘the whole and every part of the statute must be 
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considered in fixing the meaning of any of its parts.’”’” Fisher 

v. PayFlex Systems USA, 285 Neb. 808, 817-18, 829 N.W.2d 

703, 712 (2013). “[S]tatutes which change or take away a 

common-law right must be strictly construed.” Spear T Ranch 

v. Knaub, 269 Neb. 177, 195, 691 N.W.2d 116, 133 (2005). 

Any statutory construction restricting or abolishing commonlaw rights should not be adopted, unless the plain words of the 

statute compel such result. Id.

CMS argues that under § 25-1708, it is entitled to costs, 

because Jefferson, the defendant, voluntarily paid CMS’ claim 

after the action was filed but before there was a judgment. 

We agree.

A plain reading of § 25-1708 establishes that in actions 

for the recovery of money, a plaintiff is entitled to costs 

(1) where he or she received a voluntary payment from the 

defendant after the action was filed but before judgment or 

(2) where there was a judgment in favor of the plaintiff. In 

both of these scenarios, the plaintiff has recovered from the 

defendant and can be considered the prevailing party. In this 

way, § 25-1708 remains consistent with the common-law rule 

regarding costs, of which the statute is an embodiment. See 

Keller v. State, supra.

The fact that § 25-1708 includes the word “except” indicates 

that there is an exception to the statute. But this exception is 

limited to a plaintiff’s waiver or release of costs in writing. 

The only time “except” is mentioned in § 25-1708 is as part 

of the phrase “except as waived or released in writing by the 

plaintiff.” This phrase is offset from the surrounding phrases 

by commas, and it is not followed by the conjunction “and” or 

“or.” It constitutes a complete phrase that must be read independently of the phrases that follow it.

We specifically reject the county and district courts’ interpretation that in addition to the exception for the waiver or 

release of costs in writing, § 25-1708 provides for an exception where the defendant voluntarily paid the plaintiff’s claim 

after the action was filed but before a judgment was entered. 

Such an interpretation would restrict the common-law right 

to costs where the plain language of the statute does not 

so compel.
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The grammatical structure of § 25-1708 is such that if 

there were an exception that applied in the case of a voluntary payment, there would also be an exception that applied 

where there was a judgment in the plaintiff’s favor. The exact 

language of the statute is as follows: “upon a voluntary payment to the plaintiff after the action is filed but before judgment, or upon a judgment in favor of the plaintiff.” (Emphasis 

supplied.) The conjunction “or” is used to indicate “the synonymous, equivalent, or substitutive character of two words 

or phrases.” See Webster’s Third New International Dictionary 

of the English Language, Unabridged 1585 (1993). The use of 

the word “or” in § 25-1708 thus signals that a plaintiff who 

has not waived or released costs in writing is in the identical 

position, for purposes of recovering costs, whether he or she 

obtained a judgment in his or her favor or simply received 

a voluntary payment after the action was filed but before a 

judgment was entered. Because these two scenarios must be 

treated as equivalent, the interpretation adopted by the county 

and district courts, which would deny costs to all plaintiffs 

who received voluntary payments prior to a judgment, would 

also deny costs to all plaintiffs who obtained judgments in 

their favor.

But to deny costs to all plaintiffs who obtained judgments in their favor would be to deprive those plaintiffs of 

the common-law right of a prevailing party to recover costs. 

See Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969). 

Any statutory construction restricting or abolishing commonlaw rights should not be adopted, unless the plain words of 

the statute compel such result. Spear T Ranch v. Knaub, 269 

Neb. 177, 691 N.W.2d 116 (2005). In the case of § 25-1708, 

the plain language does not compel that all plaintiffs who 

obtained judgments in their favor should be deprived of costs. 

The plain language compels only that such plaintiffs should 

be denied costs where they have waived or released costs 

in writing.

In summary, a plain reading of § 25-1708 establishes that 

the scope of the exception to § 25-1708 is limited to a plaintiff’s waiver or release of costs in writing. This plain reading 

is reaffirmed by the fact that the broader exception adopted 
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by the county and district courts would restrict the commonlaw right to costs where the plain language does not so compel. Accordingly, we hold that § 25-1708 has but one exception and that the exception is limited to a plaintiff’s waiver or 

release of costs in writing. The Legislature has provided that 

in an action for the recovery of money, if an individual makes 

a voluntary payment prior to judgment but does not obtain a 

written waiver or release of costs from the plaintiff, the plaintiff is entitled to costs under § 25-1708. The wisdom of this 

policy is for the Legislature, and our role is to determine the 

plain meaning of the statute.

In the instant case, Jefferson voluntarily paid CMS’ claim 

after the action was filed but prior to the entry of judgment. 

CMS did not waive or release costs in writing. As such, 

under § 25-1708, CMS was entitled to its costs in the action. 

By affirming the order of the county court that overruled 

CMS’ motion for costs, the district court deprived CMS of 

its statutory right to costs and thereby abused its discretion. 

We therefore reverse the order of the district court, and we 

remand the cause with directions for the district court to 

direct the county court to enter an order awarding CMS its 

costs in this action.

CONCLUSION

For the foregoing reasons, we reverse the order of the district court that affirmed the order of the county court which 

overruled CMS’ motion for costs. We remand the cause with 

directions for the district court to direct the county court to 

enter an order awarding CMS its costs in this action.

Reversed and remanded with direct