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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.

Cite as 312 Neb. 367

Great Plains Livestock Consulting, Inc., 

and Ki Fanning, appellants, v. 

Midwest Insurance Exchange, 

Inc., et al., appellees.

___ N.W. ___

Filed September 2, 2022. No. S-21-722.

1. Standing: Jurisdiction: Pleadings: Evidence: Appeal and Error. If a 

motion challenging a court’s subject matter jurisdiction is filed after the 

pleadings stage, and the court holds an evidentiary hearing and reviews 

evidence outside the pleadings, it is considered a “factual challenge.” 

Where the trial court’s decision to dismiss for lack of subject matter 

jurisdiction is based on a factual challenge, the court’s factual findings 

are reviewed under the clearly erroneous standard.

2. Jurisdiction: Appeal and Error. Aside from any factual findings, the 

trial court’s ruling on subject matter jurisdiction is reviewed de novo, 

because it presents a question of law.

3. Appeal and Error. The grant or denial of a stay of proceedings is 

reviewed for an abuse of discretion.

4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

5. Jurisdiction: Courts. Ripeness is one component of subject matter 

jurisdiction; its fundamental principle is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may 

not occur as anticipated.

6. ____: ____. A determination with regard to ripeness depends upon the 

circumstances in a given case and is a matter of degree.

7. Actions: Jurisdiction: Appeal and Error. An appellate court uses a 

two-part inquiry to determine ripeness: (1) the fitness of the issues for 

Nebraska Supreme Court Online Library

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

09/16/2022 12:06 AM CDT
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judicial decision and (2) the hardship to the parties of withholding court 

consideration.

8. Negligence: Proof. To prevail in a negligence action, a plaintiff must 

prove the defendant’s duty not to injure the plaintiff, breach of duty, 

proximate causation, and damages.

9. Courts: Actions. Courts inherently possess the power to stay proceedings when required by the interests of justice.

Appeal from the District Court for Cass County: Michael A. 

Smith, Judge. Reversed and remanded for further proceedings.

Andrew D. Weeks, of Baylor Evnen, L.L.P., for appellants.

Brien M. Welch and David A. Blagg, of Cassem, Tierney, 

Adams, Gotch & Douglas, for appellee Midwest Insurance 

Exchange, Inc.

Sean A. Minahan and Patrick G. Vipond, of Lamson, Dugan 

& Murray, L.L.P., for appellees UNICO Group, Inc., and Sean 

Krueger.

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

and Freudenberg, JJ., and Kozisek, District Judge.

Funke, J.

INTRODUCTION

Great Plains Livestock Consulting, Inc., and its president, 

Ki Fanning (collectively Great Plains), appeal the order of the 

district court for Cass County, Nebraska, which dismissed its 

complaint for lack of subject matter jurisdiction. Great Plains 

alleged that Midwest Insurance Exchange, Inc. (Midwest), as 

well as UNICO Group, Inc., and agent Sean Krueger (collectively UNICO), negligently failed to transfer or procure 

an errors and omissions insurance policy, which, had it been 

in place, would have covered the costs of defense and settlement or judgment for two lawsuits filed against Great Plains 

in another state. The district court found that Great Plains’ 

complaint is not ripe because Midwest’s and UNICO’s liability and Great Plains’ damages are currently unknown and 
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because Great Plains may never be found liable in the lawsuits 

against it. Great Plains appeals. We reverse, and remand for 

further proceedings.

BACKGROUND

In early 2018, Great Plains had an errors and omissions 

policy underwritten by Capitol Specialty Insurance Corporation 

(Cap Specialty) through Midwest when it approached UNICO 

for assistance in procuring various insurance coverages. The 

record on appeal does not disclose what, if any, agreements 

the parties reached regarding coverage at that time, but Great 

Plains notified Midwest on April 18, 2018, that it was moving its errors and omissions policy. Great Plains subsequently 

obtained an errors and omissions policy underwritten by 

Lloyd’s London Syndicate 2987 (Lloyd’s) through UNICO on 

or about November 11, 2019. This policy was renewed on or 

about November 11, 2020.

In late 2020, Great Plains was named a third-party defendant in two lawsuits filed in the Iowa district court for Emmet 

County based on consulting work it had performed for Spencer 

Ag Center, LLC (Spencer Ag). The parties to the two lawsuits 

were different, but both lawsuits complained of negligence 

and breach of implied warranty of fitness by Spencer Ag 

customers. These customers named Spencer Ag a third-party 

defendant, and Spencer Ag, in turn, asserted third-party claims 

against Great Plains, alleging Great Plains had provided the 

feed ration formulas and feed products to the customers. As of 

this appeal, the Iowa lawsuits are pending.

Between early December 2020 and the end of February 

2021, Great Plains submitted claims and requests for a tender 

of defense and indemnification related to the Iowa lawsuits to 

Midwest, UNICO, Cap Specialty, and Lloyd’s. All claims and 

requests were denied.

Subsequently, on March 24, 2021, Great Plains brought a 

declaratory judgment action against Midwest, UNICO, Cap 

Specialty, and Lloyd’s to ascertain whether any policy effective 
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between Great Plains and the insurers covered the events underlying the Iowa lawsuits. It also sought recovery of the costs of 

the Iowa lawsuits and of its declaratory judgment action.

Great Plains filed a separate negligence lawsuit against 

Midwest and UNICO alleging they had a duty to transfer or 

procure an errors and omissions policy for it and breached this 

duty by failing to ensure the requested policy was in place. 

Great Plains further alleged that Midwest’s and UNICO’s 

breach of duty had “caused” and “will continue to cause” it 

damages because it had to retain counsel at its own expense to 

defend the Iowa lawsuits; it will also have to pay any judgment 

entered against it in the lawsuits. Great Plains asserted these 

costs would have been covered under the requested errors and 

omissions policy.

UNICO moved to dismiss Great Plains’ negligence complaint for failure to state a claim under Neb. Ct. R. Pldg. 

§ 6-1112(b)(6). UNICO based this motion primarily on the fact 

that “[Great Plains] currently do[es] not and cannot provide 

. . . the amount of defense cost or potential judgments against 

[Great Plains] in the two Iowa lawsuits.” As such, UNICO 

argued, Great Plains’ “alleged damages are speculative” and its 

complaint is not ripe.

Great Plains filed a statement of disputed facts in opposition 

to UNICO’s motion to dismiss, asserting that it had already 

incurred attorney fees of approximately $4,000 in the Iowa 

lawsuits and $16,000 in its declaratory judgment and negligence actions. Great Plains also moved to stay proceedings on 

its negligence complaint pending the resolution of the Iowa 

lawsuits. In so doing, Great Plains asserted that the full extent 

of its damages is “contingent” on the outcome of these lawsuits, but “not speculative.”

The district court held a hearing on June 21, 2021, at which 

the parties to the declaratory judgment action essentially 

agreed that Great Plains did not have errors and omissions 

coverage for the Iowa lawsuits. The hearing also touched on 

Great Plains’ motion to stay, with Midwest’s and UNICO’s 
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position being that Great Plains’ negligence complaint is 

“premature” and “not ripe” and should be dismissed, not 

stayed. They proposed that Great Plains “bring an action in 

negligence or a contribution indemnity” “when and if they 

do have any damages in the Iowa case[s].” However, Great 

Plains expressed concern about dismissal with the option to 

refile later insofar as its claims could be seen to involve professional negligence subject to a 2-year statute of limitations, 

rather than ordinary negligence subject to a 4-year statute 

of limitations.

The district court subsequently issued an order on August 2, 

2021, dismissing Great Plains’ negligence complaint on ripeness grounds. In relevant part, the order stated:

The liability of [Midwest and Unico] to [Great Plains] is 

currently unknown as is the amount of any damages. In 

fact, there may not ever be a finding of liability in the 

Iowa litigation. As any claim of [Great Plains] is entirely 

dependent on the outcome of the Iowa litigation, the case 

is not fit for a judicial decision at this time, and there is 

no showing of a hardship to [Great Plains] by withholding 

the court’s decision in the case.

The order did not address Great Plains’ motion for a stay.

Midwest filed its own motion to dismiss on August 4, 2021, 

because it was unclear whether the earlier order applied to 

Midwest. In its motion, Midwest asserted Great Plains’ complaint “is based on a theoretical contingency” that it may be 

entitled to contribution or indemnity from Midwest if judgment is entered against it in the Iowa lawsuits. Midwest further 

asserted that “[a]t this stage, any claims for contribution and 

indemnity or for damages are speculative at best.”

The district court also granted this motion, “consistent with” 

its earlier ruling on UNICO’s motion to dismiss. The language 

of the order was the same as that in the earlier order, and Great 

Plains’ motion to stay was not addressed.

Great Plains appealed to the Nebraska Court of Appeals, and 

we moved the matter to our docket.
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ASSIGNMENTS OF ERROR

Great Plains assigns, restated, that the district court erred in 

finding that its negligence complaint is not ripe and in declining to stay proceedings pending the resolution of the Iowa 

lawsuits.

STANDARD OF REVIEW

[1,2] If a motion challenging a court’s subject matter jurisdiction is filed after the pleadings stage, and the court holds 

an evidentiary hearing and reviews evidence outside the pleadings, it is considered a “factual challenge.” 1 Where the trial 

court’s decision to dismiss for lack of subject matter jurisdiction is based on a factual challenge, the court’s factual findings 

are reviewed under the clearly erroneous standard. 2 But aside 

from any factual findings, the trial court’s ruling on subject 

matter jurisdiction is reviewed de novo, because it presents a 

question of law. 3

[3] The grant or denial of a stay of proceedings is reviewed 

for an abuse of discretion. 4

ANALYSIS

Ripeness

Great Plains argues that in dismissing its complaint on 

ripeness grounds, the district court “focus[ed] only on the 

prospective settlements or judgments in the two Iowa cases” 

and ignored the costs Great Plains has already incurred in 

defending the Iowa lawsuits and bringing the declaratory judgment and negligence actions. 5 Midwest and UNICO counter 

that Great Plains’ claims “currently require litigating abstract 

1 See North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970 N.W.2d 461 

(2022).

2 Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).

3 Id.

4 Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021).

5 Brief for appellants at 8.
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issues of future and contingent outcomes that may or may not 

occur or may not occur as anticipated,” given that the Iowa 

lawsuits are ongoing and Great Plains has not yet been found 

liable for any act or omission. 6 They also argue that Great 

Plains’ own motion to stay proceedings “betrays” that its negligence complaint is not ripe. 7

We agree with Great Plains that the district court erred in 

dismissing its negligence complaint on ripeness grounds given 

the facts and circumstances of this case. The district court based 

its decision on its view that Midwest’s and UNICO’s “liability” and Great Plains’ “damages” are “currently unknown,” 

and “there may not ever be a finding of liability in the Iowa 

litigation.” The district court is correct that there are numerous 

unknowns regarding the claims pending against Great Plains 

in Iowa, including whether Great Plains will be found liable. However, despite these unknowns, the elements of Great 

Plains’ negligence complaint as to its attorney fees already 

incurred in defending the Iowa lawsuits are not conjectural or 

hypothetical. Our finding that Great Plains’ complaint is ripe 

is based upon these costs; we offer no opinion regarding the 

other damages alleged in the complaint.

[4-6] Subject matter jurisdiction is the power of a tribunal 

to hear and determine a case in the general class or category 

to which the proceedings in question belong and to deal with 

the general subject matter involved. 8 Ripeness is one component of subject matter jurisdiction; its fundamental principle 

is that courts should avoid entangling themselves, through 

premature adjudication, in abstract disagreements based on 

contingent future events that may not occur at all or may 

not occur as anticipated. 9 A determination regarding ripeness 

6 Brief for appellee UNICO at 10.

7 Id. at 13.

8 Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).

9 See State ex rel. Wagner v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020).
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depends upon the circumstances in a given case and is a matter of degree. 10

[7] In making this determination, we use a two-part inquiry: 

(1) the fitness of the issues for judicial decision and (2) the 

hardship to the parties of withholding court consideration. 11

The fitness-for-decision inquiry goes to the court’s ability to 

visit an issue and safeguards against judicial review of hypothetical or speculative disagreements. 12 Generally, a case is ripe 

when no further factual development is necessary to clarify a 

concrete legal dispute susceptible to specific judicial relief, 

as distinguished from an advisory opinion regarding contingent future events. 13 The hardship inquiry, in turn, goes to the 

question of whether delayed review will result in significant 

harm. 14 “Harm” includes both the traditional concept of actual 

damages—pecuniary or otherwise—and also the heightened 

uncertainty and resulting behavior modification that may result 

from delayed resolution. 15

For example, in City of Omaha v. City of Elkhorn,

 16 we 

considered the issue of ripeness in a declaratory judgment 

action. In City of Omaha, the plaintiff sought a determination 

as to whether severance provisions in certain employment 

contracts that the defendant had entered into prior to being 

annexed by the plaintiff were enforceable. We determined 

that the declaratory judgment action was ripe despite the fact 

that a lawsuit challenging the validity of the annexation was 

still pending when the declaratory judgment action was filed. 

In so doing, we noted that the question of whether the severance provisions ran afoul of the Nebraska Constitution was 

10 Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (2014).

11 See Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).

12 Id.

13 Shepard v. Houston, supra note 10.

14 See Stewart v. Heineman, supra note 11.

15 Id.

16 City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008).
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“essentially legal in nature” and could be “resolved without 

further factual development.” 17 We also noted that deciding 

the case at this time would avoid delay and the unnecessary 

expenditure of judicial resources in relitigating this question 

and resolve the uncertainty about the severance provisions’ 

enforceability. 18

Similarly, in Shepard v. Houston,

 19 we found that a declaratory judgment action challenging the constitutionality of a 

statute which required that an inmate who refused to submit 

a DNA sample forfeit his good time credits was ripe, even 

though the statute would not be applied to the inmate until 

his release date. We noted that the question of whether the 

statute had impermissible retroactive effect as to the inmate 

was “essentially legal” and could be “resolved without further factual development.” 20 We also noted that although the 

inmate could change his mind, this possibility was “more 

speculative than the present reality,” given that he had already 

refused to submit a sample and professed he would continue 

to refuse. 21 In addition, we found that deciding the case at this 

time would avoid the waste of judicial resources in relitigating 

the issue, as well as potentially “significant hardship” to the 

inmate, who might otherwise be unlawfully detained after his 

release date. 22

[8] We find that this case, like the declaratory actions in 

City of Omaha and Shepard, is ripe, because Great Plains’ 

negligence complaint can be resolved without further factual 

development. As the plaintiff in a negligence action, Great 

Plains must prove Midwest’s and UNICO’s duty not to injure 

Great Plains, a breach of that duty, proximate causation, and 

17 Id. at 82, 752 N.W.2d at 147.

18 Id.

19 Shepard v. Houston, supra note 10.

20 Id. at 407, 855 N.W.2d at 566.

21 Id. at 408, 855 N.W.2d at 567.

22 Id.
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damages. 23 Midwest and UNICO focus their ripeness argument 

on the elements of duty and damages. Midwest asserts that 

resolution of the Iowa lawsuits is necessary to determine what, 

if any, duty it breached by “defining the parameters of the 

claims from which Midwest is charged with failing to protect 

Great Plains.” 24 Both Midwest and UNICO further assert that 

Great Plains’ damages are “too contingent or remote to support present adjudication” 25 because (1) the costs of defending 

the Iowa lawsuits are “currently incomplete and contingent on 

[Great Plains’] continuing to defend [itself]” 26; (2) Great Plains 

has not been, and may never be, found liable in the Iowa lawsuits; and (3) any act or omission for which Great Plains might 

be found liable may not be covered by the allegedly requested 

errors and omissions policy.

As to the element of duty, we find that Great Plains’ complaint alleges a duty on the part of Midwest and UNICO that 

is neither conjectural or hypothetical nor dependent upon the 

outcome of the Iowa lawsuits. Midwest incorrectly relies on 

our decisions in U.S. Specialty Ins. Co. v. D S Avionics 27 and 

Harleysville Ins. Group v. Omaha Gas Appliance Co. 28 for 

the propositions that a declaratory judgment action regarding 

insurance coverage is premature when “there is [a pending] 

underlying action” involving “identical issues” and ripe only 

when “coverage can be determined separately from the underlying action.” 29

23 See Susman v. Kearney Towing & Repair Ctr., 310 Neb. 910, 970 N.W.2d 

82 (2022).

24 Brief for appellee Midwest at 19.

25 Brief for appellee UNICO at 11.

26 Id. at 10.

27 U.S. Specialty Ins. Co. v. D S Avionics, 301 Neb. 388, 918 N.W.2d 589 

(2018), modified on denial of rehearing 302 Neb. 283, 923 N.W.2d 367 

(2019).

28 Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547, 772 

N.W.2d 88 (2009).

29 Brief for appellee Midwest at 16 (internal quotation marks omitted).
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These arguments, however, miss the substance of Great 

Plains’ complaint, as well as the point of our earlier decisions 

cited above. Great Plains does not allege that Midwest failed 

to protect it from specific claims or failed to fulfill the duties 

of an insurer as to defense and indemnification. Rather, Great 

Plains alleges that Midwest and/or UNICO negligently failed 

to transfer or procure an errors and omissions policy, under 

which the insurer would have had certain duties to Great 

Plains. The determination of whether such a duty existed is not 

conjectural or hypothetical pending the outcome of the Iowa 

lawsuits; it can be determined in proceedings on Great Plains’ 

negligence complaint.

Similarly, as to the cases cited by Midwest, we note that 

this is a negligence suit, not a declaratory judgment action. 

Additionally, the Iowa lawsuits do not raise “identical issues” 

insofar as they concern Great Plains’ alleged negligence and 

breach of implied warranty of fitness as to feed ration formulas and feed products, while this case concerns Midwest’s and 

UNICO’s alleged negligence in failing to transfer or procure 

an errors and omissions policy. We also note that Midwest has 

not pointed to any aspect of the allegedly requested insurance 

policy or the facts and circumstances of this case which would 

indicate that the actual outcome of the Iowa litigation, as 

opposed to the substance of the underlying claims and related 

facts, is necessary to determine whether the allegedly requested 

policy would cover these claims. 30

30 Compare Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746, 

635 N.W.2d 112 (2001) (rejecting argument that court lacked subject 

matter jurisdiction over declaratory judgment action regarding whether 

insurance policy covered claims pending resolution of claims because 

determination could be made based on policy’s language), with Allstate 

Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981) (finding that 

declaratory judgment action regarding whether insurance policy covered 

claim could not be resolved until after claim was resolved because claim 

alleged intentional tort, and policy expressly excluded claims arising from 

intentional bodily injury).
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In turning to the issue of damages, it is undisputed that 

Great Plains has defended itself in the Iowa lawsuits, instead 

of relying on an insurer to do so, as it would have done under 

the allegedly requested errors and omissions policy. We find 

that its alleged damages in this regard suffice for purposes of 

ripeness. Our recent decision in Susman v. Kearney Towing & 

Repair Ctr. 31 helps illustrate this.

Kearney Towing & Repair Ctr. involved a dispute over 

whether the statute of limitations on a claim for ordinary negligence began to run from the time of the defendant’s alleged 

negligence in mounting and installing tires on a vehicle or 

from when the tread on one of the tires separated, causing 

the driver to lose control and the vehicle to roll over. 32 We 

found that the claim did not accrue—and the statute of limitations did not begin to run—until the accident occurred. 33 In 

reaching this conclusion, we noted that “under longstanding 

principles of justiciability, a party is not aggrieved and cannot institute and maintain suit if any element of that party’s 

claim depends upon abstract questions or issues that might 

arise in a hypothetical or fictitious situation or setting and 

may never come to pass.” 34 As such, the plaintiffs could 

not have brought and maintained suit when the tires were 

installed merely because they were among the broad group 

of persons who might suffer some harm in the future. 35 It 

was not until the tread failed and the vehicle rolled over—

nearly 1 year after the tires were installed—that the plaintiffs 

suffered an injury and could initiate and maintain a suit for 

negligence. 36

31 Kearney Towing & Repair Ctr., supra note 23.

32 Id.

33 Id.

34 Id. at 921, 970 N.W.2d at 91.

35 Kearney Towing & Repair Ctr., supra note 23.

36 Id.
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Great Plains’ current situation is not like that of the Kearney 

Towing & Repair Ctr. plaintiffs prior to their accident. Great 

Plains is not seeking damages in the event a claim is filed 

against it. Two such claims have already been filed, and the 

record shows that Great Plains had incurred approximately 

$4,000 in attorney fees in defending these claims as of June 

16, 2021. Midwest and UNICO effectively admitted as much 

at oral argument when they conceded that they would agree 

Great Plains’ complaint is ripe if all it sought to recover was 

the approximately $4,000 it had spent in defending the Iowa 

lawsuits through June 16. As this admission indicates, the 

unknowns that Midwest and UNICO point to do not pertain 

to the existence of damages as such, but, rather, the amount of 

damages—namely, the total costs of defending the Iowa lawsuits, the amount of any settlement or judgment, and whether 

Great Plains is entitled to attorney fees for its declaratory judgment action in light of the prayer for relief in its negligence 

complaint and our decision in Tetherow v. Wolfe.

 37

Motion to Stay

Great Plains also argues that the district court erred in not 

staying proceedings on its negligence complaint until the Iowa 

lawsuits are resolved. Midwest and UNICO variously counter 

that the district court lacked the power to stay proceedings 

once it found it lacked subject matter jurisdiction, that the issue 

is not properly before this court on appeal because the district 

court did not rule on Great Plains’ motion for a stay, and that 

Great Plains failed to provide any argument as to why the district court abused its discretion in granting “dismissal in lieu 

of a stay.” 38

37 Tetherow v. Wolfe, 223 Neb. 631, 392 N.W.2d 374 (1986) (holding that 

one who through tort of another has been required to act in protection of 

his or her interests by bringing or defending action against third person is 

entitled to recover reasonable compensation for loss of time, attorney fees, 

and other expenditures thereby suffered or incurred in earlier action).

38 Brief for appellee UNICO at 14.
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[9] Stays are often used to regulate the court’s own proceedings or to accommodate the needs of parallel proceedings. 39

Courts inherently possess the power to stay proceedings when 

required by the interests of justice. 40

Because we reverse the district court’s finding that Great 

Plains’ complaint is not ripe, we express no opinion on whether 

Great Plains’ motion to stay has merit. In determining whether 

to exercise this power on remand, the trial court should balance the competing needs of the parties, taking into account, 

among other things, the interest of the courts, the probability 

that the proceeding will work a constitutional violation on the 

movant, the presence or absence of hardship or inequity, and 

the burden of proof. 41

CONCLUSION

We conclude that Great Plains’ action was ripe. Accordingly, 

we reverse, and remand for further proceedings.

Reversed and remanded for 

further proceedings.

Stacy, J., not participating.

39 Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).

40 Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996), 

disapproved on other grounds, Webb v. American Employers Group, 268 

Neb. 473, 684 N.W.2d 33 (2004).

41 See id.