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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

In re Interest of A.A. et al., children 

under 18 years of age.

State of Nebraska, appellee, v. 

Joshua C., appellant.

___ N.W.2d ___

Filed March 26, 2021. No. S-20-009.

supplemental opinion on issue of 

motion for attorney fees

1. Attorney Fees. Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

2. Constitutional Law: Actions: Legislature: Immunity: Waiver. Neb. 

Const. art. V, § 22, providing that the State may sue and be sued and that 

the Legislature shall provide by law in what manner and in what courts 

suits shall be brought, permits the State to lay its sovereignty aside 

and consent to be sued on such terms and conditions as the Legislature 

may prescribe.

3. Actions: Attorney Fees: Immunity: Waiver. Neb. Rev. Stat. 

§ 25-1803(1) (Reissue 2016) acts as a limited waiver of the State’s sovereign immunity in civil actions brought by the State to the extent that 

fees and expenses shall be awarded except when the court finds that the 

position of the State was substantially justified.

4. Attorney Fees. The existence of substantial justification depends upon 

the circumstances of each case.

5. ____. Substantial justification exists where the position has a reasonable 

basis both in law and in fact.

6. Attorney Fees: Appeal and Error. The mere fact that the State has not 

been successful in an appellate court does not mean its position was not 

substantially justified.

Nebraska Supreme Court Online Library

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

06/04/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

7. Statutes: Immunity: Waiver. Statutes that purport to waive the protection of sovereign immunity of the State or its subdivisions are strictly 

construed in favor of the sovereign and against the waiver.

8. ____: ____: ____. A waiver of sovereign immunity is found only 

where stated by the most express language of a statute or by such 

overwhelming implication from the text as will allow no other reasonable construction.

9. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

10. Actions: Attorney Fees: Immunity: Waiver. Neb. Rev. Stat. § 25-1803 

(Reissue 2016) does not waive sovereign immunity regarding attorney 

fees and expenses incurred to defend against positions taken against 

particular parties on particular motions within an action that was, as a 

whole, substantially justified.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Motion for attorney fees 

denied.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Douglas J. Peterson, Attorney General, C.J. Roberts, Special 

Assistant Attorney General, and Patrick Condon, Lancaster 

County Attorney, and Haley N. Messerschmidt for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

This opinion addresses a motion for attorney fees and 

expenses against the State by the intervenor in a juvenile proceeding who was successful in his appeal from a final order 

during the pendency of the case. We find that under Neb. 

Rev. Stat. § 25-1804(1) (Reissue 2016), the State’s position in 

bringing and maintaining the underlying petition for adjudication was substantially justified. Therefore, the State’s limited 
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308 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

waiver of sovereign immunity set forth in § 25-1804(1) does 

not apply to the fees and expenses sought.

BACKGROUND

The facts of this case are fully set forth in our opinion, In 

re Interest of A.A. et al.,

 1 which addressed two consolidated 

appeals from final orders in ongoing proceedings under a petition to adjudicate a child, B.C., due to the fault or habits of 

the mother. Joshua C., the legal father of B.C., appealed (1) 

the denial of his motion for temporary physical placement 

of B.C., who was removed from the mother’s home, and (2) 

a subsequent adjudication order due to the fault or habits of 

the mother.

B.C. lived with the mother and not with Joshua. B.C. was 

removed from the mother’s home pending adjudication, upon 

a finding that remaining in the mother’s home would be contrary to B.C.’s health, safety, and welfare and would not be in 

B.C.’s best interests. Joshua, who had an established parental 

relationship with B.C., intervened in the juvenile proceedings. 

However, without the State’s making any allegations of unfitness regarding Joshua, the court denied Joshua’s motion for 

temporary placement on the grounds that Joshua was unfit. The 

first appeal was from that order.

While Joshua’s first appeal was pending, the mother pled 

no contest to the petition for adjudication. The district court 

overruled Joshua’s objection to the hearing on adjudication in 

which Joshua argued that his pending appeal from the denial 

of his motion for placement deprived the district court of 

jurisdiction.

With regard to the first appeal, we held in In re Interest 

of A.A. et al. that Joshua was deprived of due process when 

the court refused to recognize his parental preference over 

the State to B.C.’s custody by finding him unfit without any 

formal allegation placing him on notice that he would have 

1 In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).
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IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

to defend against an attempt by the State to prove he had lost 

the presumption of parental preference. In the second appeal 

addressed in In re Interest of A.A. et al., we found no merit to 

Joshua’s contention that the pendency of Joshua’s first appeal 

had divested the district court of jurisdiction to accept the 

mother’s no contest plea to the petition to adjudicate B.C. due 

to the mother’s fault or habits.

ANALYSIS

[1] Pursuant to Neb. Rev. Stat. § 25-1803(1) (Reissue 2016) 

and Neb. Ct. R. App. P. § 2-109(F) (rev. 2014), Joshua seeks 

reimbursement for attorney fees and expenses incurred in the 

appeal from the denial of his motion for temporary placement. 

Attorney fees and expenses may be recovered only where 

provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees. 2 Joshua does not claim a uniform course of procedure 

provides for attorney fees and expenses in this case.

[2,3] Neb. Const. art. V, § 22, providing that the State may 

sue and be sued and that the Legislature shall provide by law 

in what manner and in what courts suits shall be brought, 

permits the State to lay its sovereignty aside and consent to 

be sued on such terms and conditions as the Legislature may 

prescribe. Section 25-1803(1) acts as a limited waiver of the 

State’s sovereign immunity in civil actions brought by the State 

to the extent that fees and expenses shall be awarded except 

when the court finds that the position of the State was substantially justified. 3

Section 25-1803 provides in full:

(1) Unless otherwise provided by law, the court having jurisdiction over a civil action brought by the state 

or an action for judicial review brought against the state 

2 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).

3 In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).
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IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

pursuant to the Administrative Procedure Act shall award 

fees and other expenses to the prevailing party unless the 

prevailing party is the state, except that the court shall not 

award fees and expenses if it finds that the position of the 

state was substantially justified.

(2) The court, in its discretion, may reduce the amount 

to be awarded pursuant to this section, or deny an award, 

to the extent that the prevailing party, during the course 

of the proceedings engaged in conduct which unduly and 

unreasonably protracted the final resolution of the matter 

in controversy or when an overriding public interest exists 

which would make an award unjust.

Section 25-1804(1) (Reissue 2016) describes the application 

for attorney fees pursuant to § 25-1803 as follows:

A party seeking an award for fees and other expenses 

pursuant to sections 25-1802 to 25-1807 shall, not later 

than thirty days after the entry of the final judgment in 

the action, submit to the court an application which provides evidence of eligibility for an award pursuant to such 

sections and which specifies the amount sought. If the 

amount sought includes an attorney’s fee or the fee for 

an expert witness, the application shall include an itemized statement for each such fee indicating the actual time 

expended in service to the applicant and the rate at which 

the fees were computed.

Neb. Rev. Stat. § 25-1805 (Reissue 2016) provides that 

“[f]ees and expenses awarded pursuant to sections 25-1802 

to 25-1807 may be ordered in addition to any compensation 

awarded in a judgment.” Neb. Rev. Stat. § 25-1809 (Reissue 

2016) provides that the fees and expenses that have been 

awarded against a state agency, board, commission, or constitutional office or the Legislature shall be paid out of the Legal 

Services Fund.

The parties dispute whether the juvenile proceedings were 

a civil action, whether the juvenile proceedings were brought 
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308 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

by the State, and whether the State was substantially justified 

in its position. We conclude that Joshua’s motion for attorney 

fees should be denied, because the State was substantially justified in commencing the juvenile proceedings for B.C. under 

the petition making allegations against the mother.

[4-6] The existence of substantial justification depends 

upon the circumstances of each case. 4 Such justification exists 

where the position has a reasonable basis both in law and in 

fact. 5 The mere fact that the State has not been successful 

in this court does not mean its position was not substantially 

justified. 6

[7-9] It is well settled that statutes that purport to waive 

the protection of sovereign immunity of the State or its subdivisions are strictly construed in favor of the sovereign and 

against the waiver. 7 A waiver of sovereign immunity is found 

only where stated by the most express language of a statute or 

by such overwhelming implication from the text as will allow 

no other reasonable construction. 8 Statutory language is to be 

given its plain and ordinary meaning, and an appellate court 

will not resort to interpretation to ascertain the meaning of 

statutory words which are plain, direct, and unambiguous. 9

Section 25-1803(2) refers to the “final resolution of the 

matter in controversy,” and § 25-1804(1) refers to the award’s 

being “after the entry of the final judgment in the action.” 

Joshua’s appeals were from final orders, not from the final 

judgment in the juvenile proceedings. More to the point, 

under our mandate of strict construction, the references in the 

relevant statutes to the final resolution of the matter in the 

4 Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

5 Id.

6 Id.

7 Moser v. State, 307 Neb. 18, 948 N.W.2d 194 (2020).

8 Id.

9 Id.
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IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

controversy after the entry of the final judgment indicate a limited waiver for an award of attorney fees and expenses against 

the State only where the underlying action brought by the State 

was not itself substantially justified.

This reading is also supported by the reference in 

§ 25-1803(1) to “the position of the state” (emphasis supplied). The U.S. Supreme Court, in Commissioner, INS v. 

Jean,

 10 interpreted the meaning of “substantially justified” in 

a similar federal statute and relied on, among other things, a 

reference to the “‘position of the United States’” in the singular before concluding that “[w]hile the parties’ postures on 

individual matters may be more or less justified, [the statute] 

favors treating a case as an inclusive whole, rather than as 

atomized line-items.” Other federal courts have understood 

Jean to require courts to assess the substantial justification of 

the government’s position in a case as a whole rather than on 

individual issues. 11

[10] Section 25-1803 does not waive sovereign immunity regarding attorney fees and expenses incurred to defend 

against positions taken against particular parties on particular 

motions within an action that was, as a whole, substantially 

justified. We find that the State’s decision to bring a petition 

10 Commissioner, INS v. Jean, 496 U.S. 154, 161-62, 110 S. Ct. 2316, 110 L. 

Ed. 2d 134 (1990) (interpreting 28 U.S.C. § 2412(d)(1)(A) (1988)).

11 See, e.g., Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th 

Cir. 1993) (“we conclude that when determining whether the government’s 

position in a case is substantially justified, we look beyond the issue 

on which the petitioner prevailed to determine, from the totality of 

circumstances, whether the government acted reasonably in causing the 

litigation or in taking a stance during the litigation”); Utu Utu Gwaitu 

Paiute Tribe v. Dept. of Interior, 773 F. Supp. 1383, 1388 (E.D. Cal. 

1991) (“[w]here the government’s position in the course of litigation and 

at the agency level below is substantially justified as a whole, the lack of 

substantial justification on one procedural issue raised during the course 

of litigation may not provide a basis for apportioning an award of fees . . . 

for time spent defending that one procedural issue”).
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308 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 308 Neb. 749

to adjudicate B.C. was substantially justified. Accordingly, no 

statute provides for the recovery of Joshua’s attorney fees and 

expenses incurred in this appeal. We need not address the parties’ other arguments concerning § 25-1803.

CONCLUSION

For the foregoing reasons, we deny Joshua’s motion for 

attorney fees and costs.

Motion for attorney fees denied.