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HUFF v. OTTO

Cite as 28 Neb. App. 646

Herchel H. Huff, appellant, v. Jeff Otto 

and JWO Trucking, appellees.

___ N.W.2d ___

Filed July 21, 2020. No. A-19-536.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law, which requires the appellate court to reach a conclusion 

independent of the trial court’s decision.

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. Jurisdiction: Appeal and Error. When a trial court lacks jurisdiction 

to adjudicate the merits of a claim, issue, or question, an appellate court 

also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

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. Parties cannot confer subject matter jurisdiction upon a 

judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of 

the parties.

6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

7. ____: ____. A court action taken without subject matter jurisdiction 

is void.

8. Criminal Law: Search and Seizure: Property. Property seized in 

enforcing a criminal law is said to be “in custodia legis,” or in the custody of the court.

Nebraska Supreme Court Online Library

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

07/21/2020 08:07 AM CDT
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9. Trial: Search and Seizure: Evidence. Property seized and held as evidence is to be kept so long as necessary to make it available as evidence 

in any trial.

10. Jurisdiction: Search and Seizure: Evidence. The court where a complaint has been filed and where seized property was or may be used as 

evidence has exclusive jurisdiction for disposition of the property and to 

determine rights therein, including questions respecting the title, possession, control, and disposition thereof.

11. Criminal Law: Search and Seizure: Property: Evidence. Property 

introduced in evidence is in custodia legis, and while it is in custodia 

legis, it is not subject to civil processes.

12. Statutes: Legislature: Intent. In discerning the meaning of a statute, 

a court must determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, as it is the court’s duty 

to discover, if possible, the Legislature’s intent from the language of the 

statute itself.

13. Statutes: Intent. When interpreting a statute, effect must be given, if 

possible, to all the several parts of a statute; no sentence, clause, or word 

should be rejected as meaningless or superfluous if it can be avoided.

14. Statutes: Legislature: Intent. Under principles of statutory construction, the components of a series or collection of statutes pertaining to a 

certain subject matter may be conjunctively considered and construed to 

determine the intent of the Legislature so that different provisions of an 

act are consistent, harmonious, and sensible.

15. ____: ____: ____. When words of a particular clause, taken literally, 

would plainly contradict other clauses of the same statute, or lead to 

some manifest absurdity or to some consequences which a court sees 

plainly could not have been intended, or to result manifestly against the 

general term, scope, and purpose of the law, then the court may apply 

the rules of construction to ascertain the meaning and intent of the lawgiver, and bring the whole statute into harmony if possible.

16. Statutes. Where the same word is used repeatedly in the same act, 

unless the context requires otherwise, the word is to have the same 

meaning.

17. Jurisdiction: Trial: Search and Seizure: Property. Where invoked, 

the grant of “exclusive jurisdiction” under Neb. Rev. Stat. § 29-818 

(Reissue 2016) gives a criminal trial court exclusive jurisdiction over 

only two issues: disposition of seized property and determination of 

rights in seized property.

18. Courts: Jurisdiction: Legislature. The “common-law” jurisdiction 

conferred to the district courts is beyond the power of the Legislature to 

limit or control.
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19. Justiciable Issues. A justiciable issue requires a present, substantial 

controversy between parties having adverse legal interests susceptible to 

immediate resolution and capable of present judicial enforcement.

20. Courts: Justiciable Issues. A court decides real controversies and 

determines rights actually controverted, and does not address or dispose 

of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting.

21. ____: ____. Ripeness is a justiciability doctrine that courts consider in 

determining whether they may properly decide a controversy.

22. Courts. The fundamental principle of ripeness 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.

23. Actions: Justiciable Issues: Standing. The ripeness doctrine is rooted 

in the same general policies of justiciability as standing and mootness. 

As compared to standing, ripeness assumes that an asserted injury is 

sufficient to support standing, but asks whether the injury is too contingent or remote to support present adjudication. It is a time dimension 

of standing.

24. Courts: Jurisdiction. A determination of ripeness depends upon the 

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

25. Actions: Jurisdiction. An appellate court uses a two-part inquiry to 

determine ripeness: (1) the jurisdictional question of the fitness of the 

issues for judicial decision and (2) the prudential question concerning 

the hardship to the parties of withholding court consideration.

26. Actions. 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.

27. Criminal Law: Search and Seizure: Property. The proper procedure 

to obtain the return of seized property is to apply to the court in which 

a criminal charge was filed for its return.

28. Criminal Law: Search and Seizure: Property: Presumptions: Proof.

When criminal proceedings have terminated, the person from whom 

property was seized is presumed to have a right to its return, and the 

burden is on the government to show that it has a legitimate reason to 

retain the property.

29. Search and Seizure: Property: Proof. One in possession of property 

has the right to keep it against all but those with better title, and the mere 

fact of seizure does not require that entitlement be established anew.

30. Search and Seizure: Property: Presumptions: Title. The presumptive 

right to possession of seized property may be overcome when superior 

title in another is shown by a preponderance of the evidence.
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31. Actions: Torts: Words and Phrases. Tort actions, which arise from a 

breach of a duty imposed by law, protect a plaintiff’s interest or right 

to be free from another’s conduct which causes damage or loss to the 

plaintiff’s person or property.

32. Actions: Jurisdiction. If an action is not ready, or “ripe” for judicial 

determination, then the district court lacks subject matter jurisdiction to 

consider the case.

Appeal from the District Court for Furnas County: James E. 

Doyle IV, Judge. Appeal dismissed.

Herchel H. Huff, pro se.

Justin M. Daake, of Daake Law Office, L.L.C., for appellees.

Pirtle, Riedmann, and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

Herchel H. Huff, pro se, sued Jeff Otto and Otto’s company, 

JWO Trucking (referred to herein individually and collectively 

as “Otto”), for the alleged negligent care of Huff’s vehicle 

while stored on Otto’s property during and after a criminal 

proceeding involving Huff. Huff appeals the decision of the 

Furnas County District Court dismissing his case due to lack 

of subject matter jurisdiction. Because exclusive jurisdiction 

over Huff’s vehicle remained with the court in which Huff’s 

criminal case was filed, the district court properly dismissed 

Huff’s civil action.

BACKGROUND

In October 2007, Huff was driving his Chevrolet Camaro 

when it struck and killed a jogger. Huff was arrested in connection with the fatal collision and was subsequently convicted 

of various charges in connection with the accident. See State 

v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). The Camaro was 

seized at the scene, and after it was inspected, it was moved 

to Otto’s property where it was stored inside a locked metal 
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shed. At some point, the Camaro was moved from indoor storage to outdoors.

In July 2018, Huff filed a complaint against Otto due to the 

“destruction” of his Camaro while it was in Otto’s care and 

which “allow[ed] exculpatory evidence to be destroyed” and 

denied Huff due process of the law. Huff alleged that Otto’s 

storage of the Camaro was negligent. Huff asked for judgment 

in his favor and for compensatory and punitive damages. Otto 

moved to dismiss Huff’s complaint for failing to state a claim 

upon which relief could be granted.

A telephonic hearing took place on October 16, 2018. Huff 

mentioned motions he said he had filed, but the court noted 

they were actually filed in a “criminal case, CR07-11.” After 

argument, Otto’s motion to dismiss was taken under advisement. On December 31, the motion to dismiss was granted in 

part and denied in part. The court dismissed Huff’s claim of a 

denial of due process (no alleged state action) and his request 

for punitive damages (not recoverable under Nebraska law). 

However, the court found that Huff alleged sufficient facts to 

set forth a negligence claim; the motion to dismiss was overruled with respect to that one claim.

On January 16, 2019, Huff filed an amended complaint. 

He identified himself as an inmate and Otto as having been 

under contract with the Furnas County Sheriff’s Department 

to store seized vehicles. Huff further alleged that on October 

3, 2007, Huff was inside his Camaro when it struck and killed 

a jogger. The Camaro was seized at the scene, and after it 

was inspected, it was moved to Otto’s property where it was 

stored inside a locked metal shed. Huff attached and incorporated into his amended complaint an affidavit by a sheriff. 

The sheriff visited Otto’s property in 2011 and found Huff’s 

vehicle outside with the “T-tops” off and the windows down; 

Otto informed the sheriff that Huff’s vehicle was moved to 

an outdoor storage pasture “‘after the trial was over.’” Huff’s 

vehicle remains there. Huff believed his Camaro was left outdoors to “destroy exculpatory evidence.” Huff claimed that his 
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Camaro and its contents were “destroyed” while in the care 

of Otto in violation of Neb. Rev. Stat. §§ 60-2401 to 60-2411 

(Reissue 2010) (statutes related to vehicles being towed from 

restricted parking lots).

Otto again filed a motion to dismiss. At the end of a tele

phonic hearing on January 30, 2019, Otto’s motion to dismiss 

was taken under advisement. In February, Huff filed a “Motion 

for County to Pay for Private Investigator” (he wanted the 

Camaro photographed) and a “Motion for Order to Preserve 

Evidence ( Camaro),” in which he alleged that the court was 

“well aware” that his criminal “appeals are still being litigated” 

so that his Camaro “must be inside a secured building.”

On May 2, 2019, the district court entered an “Order of 

Dismissal.” It understood Huff’s amended complaint set forth 

two causes of action, one for relief under §§ 60-2401 to 

60-2411 and one for the negligent care of his vehicle while 

it was in the possession of Otto pending the prosecution of 

Huff for “motor vehicle homicide.” The district court took 

judicial notice of district court case “State of Nebraska v. 

Herchel H. Huff” at “CR07-11,” the criminal case in which 

Huff was convicted and sentenced for manslaughter, motor 

vehicle homicide, tampering with a witness, and refusal to 

submit to a chemical test related to the fatal collision on 

October 3, 2007. The district court found that the criminal 

case was still an ongoing action as of May 2, 2019, because 

Huff was putting forth new claims of innocence and pursuing postconviction proceedings. The court found that the 

evidence that served as the basis for Huff’s initial conviction, 

i.e., the Camaro, had to be preserved for a possible retrial in 

the event Huff obtained one. Further, the district court found 

that the Camaro, the subject matter of the instant case, was 

in custodia legis or, in other words, under the control of the 

court overseeing Huff’s criminal case. Finally, noting that the 

absence of subject matter jurisdiction may be raised at any 

time, the district court found it did not have jurisdiction to 
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decide the issues raised by Huff in his amended complaint. 

The district court stated in its order:

Thus, while Huff may have a claim for the negligent 

care of the Camaro during its bailment, such claim is 

not ripe and cannot be decided by the court because the 

subject matter of his claims, i.e., the Camaro, is currently 

in the control and custody of the court by reason of the 

proceedings in [the criminal case]. Because the claim is 

not ripe and because the court does not have jurisdiction over the matter of the disposition of the Camaro 

until the proceedings in [the criminal case] are finally 

resolved, the court finds Huff’s amended complaint must 

be dismissed.

Other pending motions and objections generally related to 

Huff’s various discovery requests and other motions filed by 

Huff were declared moot by reason of dismissal of the case and 

were also dismissed.

Huff, pro se, appeals.

ASSIGNMENTS OF ERROR

Huff assigns that the district court erred by (1) dismissing 

his amended complaint “by failing to allow [him] his witnesses 

under the Subpoena Duces Tecum and to take deposition[s]”; 

(2) denying his amended complaint “before appl[y]ing the 

standard” in “§60-2406”; (3) violating Huff’s due process 

rights “by failing to order [Otto] to preserve the [C]amaro 

which was potentially exculpatory evidence, and where several 

motions were filed”; (4) applying the “custodia legis standard, 

after the [A]ttorney [G]eneral said he was releasing the car, and 

for the prosecutorial vindictiveness”; and (5) denying motions 

to recuse Otto’s attorney and the assistant Attorney General 

(not counsel to any party in this action).

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law, which requires the appellate court to reach a conclusion 
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independent of the trial court’s decision. See McEwen v. 

Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120 

(2019).

[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. Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 

145 (2018).

ANALYSIS

[3] When a trial court lacks jurisdiction to adjudicate the 

merits of a claim, issue, or question, an appellate court also 

lacks the power to determine the merits of the claim, issue, or 

question presented to the lower court. State v. McGuire, 301 

Neb. 895, 921 N.W.2d 77 (2018). Thus, the existence of our 

jurisdiction depends on whether the district court had jurisdiction. Id.

[4-7] 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. J.S. v. Grand Island Public 

Schools, 297 Neb. 347, 899 N.W.2d 893 (2017). Parties cannot 

confer subject matter jurisdiction upon a judicial tribunal by 

either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct 

of the parties. Id. Lack of subject matter jurisdiction may be 

raised at any time by any party or by the court sua sponte. 

Id. A court action taken without subject matter jurisdiction is 

void. Id.

The district court noted that Huff’s convictions in the 

criminal case arose out of Huff’s operation of his Camaro. 

See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011) (setting forth detailed facts underlying Huff’s convictions). The 

Camaro involved in the criminal case is without question the 

subject of the present civil case. According to Huff’s amended 

complaint, the Camaro has been in the continuing care of Otto 
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pursuant to a contract with law enforcement ever since it was 

seized at the scene of the fatal 2007 collision and was subjected to a brief investigation.

Camaro in Custodia Legis

[8-11] The district court correctly found that the Camaro 

was in custodia legis. Property seized in enforcing a criminal 

law is said to be “in custodia legis,” or in the custody of the 

court. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007). 

Neb. Rev. Stat. § 29-818 (Reissue 2016) establishes the basic 

framework for dealing with seized property, and it provides, in 

relevant part:

[P]roperty seized under a search warrant or validly seized 

without a warrant shall be safely kept by the officer seizing the same, unless otherwise directed by the judge or 

magistrate, and shall be so kept so long as necessary for 

the purpose of being produced as evidence in any trial. 

Property seized may not be taken from the officer having 

it in custody by replevin or other writ so long as it is or 

may be required as evidence in any trial, nor may it be 

so taken in any event where a complaint has been filed 

in connection with which the property was or may be 

used as evidence, and the court in which such complaint 

was filed shall have exclusive jurisdiction for disposition 

of the property or funds and to determine rights therein, 

including questions respecting the title, possession, control, and disposition thereof.

Several important principles follow from this statutory framework, including a jurisdictional precept. State v. McGuire, 

supra. First, an officer seizing property pursuant to a warrant must safely keep the seized property, unless otherwise 

directed by a judge or magistrate. Id. Second, the seized property is to be kept so long as necessary to make it available as 

evidence in any trial. Id. Third, so long as the seized property 

may be required as evidence in a trial, it may not be taken 

from the officer by means of a writ of replevin. Id. Fourth, 
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where a complaint has been filed asserting a charge where the 

property was or may be used as evidence, a writ of replevin 

would not lie to take the property, even if the property was 

no longer required in evidence. Id. And, the court where a 

complaint has been filed and where seized property was or 

may be used as evidence has exclusive jurisdiction for disposition of the property and to determine rights therein, including questions respecting the title, possession, control, and 

disposition thereof. See id. The proper procedure to obtain 

the return of seized property is to apply to the court for its 

return. State v. Agee, supra. See, also, State v. Allen, 159 Neb. 

314, 66 N.W.2d 830 (1954) (property introduced in evidence 

is in custodia legis, and while it is in custodia legis, it is not 

subject to civil processes).

While it appears that Huff has filed a motion in the criminal case to have the Camaro returned to him, that motion was 

apparently still pending when this civil action was taken up 

by the district court on Otto’s motion to dismiss. According 

to the district court, Huff filed a “motion for DNA testing of 

the Camaro” and other filings “relating to the Camaro” in the 

criminal case in March 2018; the motions were denied except 

for a “motion for the return of the Camaro,” which was not 

ruled upon. The parties do not contest these findings by the 

district court.

The record shows that since October 3, 2007, the Camaro 

has been property seized for the purpose of enforcing criminal 

laws in Huff’s ongoing criminal case; therefore, the Camaro 

has been and remains to be in the custody of the court in the 

criminal case. See State v. Agee, supra. As such, the district 

court in Huff’s separate criminal case continues to have exclusive jurisdiction to determine the rights to the Camaro and the 

Camaro’s disposition. See § 29-818.

Further, § 29-818 mandates that the seized property, the 

Camaro, is to be kept so long as necessary to make it available as evidence in “any trial.” Postconviction proceedings 

are the equivalent of a “trial” for purposes of § 29-818. State 
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v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017). One 

motion, among others, pending in Huff’s criminal case at 

the time the district court ordered dismissal of the instant 

case was one for postconviction relief. Huff understands that 

his vehicle was being retained “in case of a retrial.” Brief 

for appellant at 21. He even claims that a motion to preserve 

“the evidence,” i.e., the Camaro, was granted on August 7, 

2019 (necessarily, in the criminal case). Id. at 22. However, 

there is nothing in the record to indicate any order being 

entered in the criminal case granting the return of the Camaro 

to Huff or otherwise showing that the court in the criminal 

case terminated its exclusive jurisdiction over the vehicle or 

its contents.

The district court found that because the Camaro was in the 

custody of the court in the criminal case pursuant to § 29-818, 

it “does not have jurisdiction in this [civil] case to decide 

the issues raised by Huff in his amended complaint.” In support of that determination, the district court cited to the legal 

proposition that the absence of subject matter jurisdiction may 

be raised at any time by any party or by the court sua sponte. 

Therefore, the district court appeared to tie its lack of subject 

matter jurisdiction, at least in part, to § 29-818. However, the 

district court went on to say that Huff’s claim for negligent 

care of the Camaro “is not ripe and cannot be decided by 

the court because the subject matter of his claims, i.e., the 

Camaro, is currently in the control and custody of the court by 

reason of the proceedings in the [criminal case].” The district 

court also concluded that it would not have jurisdiction “over 

the matter of the disposition of the Camaro until the proceedings in [the criminal case] are finally resolved.”

To the extent the district court read § 29-818 broadly to 

mean that if the exclusive jurisdiction of a criminal court has 

been invoked under § 29-818 regarding certain seized property, then another court is precluded altogether from exercising subject matter jurisdiction over any other action involving the same seized property, we do not agree. On the other 
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hand, the district court also stated that Huff’s claim “is not 

ripe,” which can also serve as a basis for lack of subject matter jurisdiction. We ultimately agree with the district court that 

it lacked subject matter jurisdiction over the civil action based 

on Huff’s claim not being ripe, but we first address the jurisdictional aspects of § 29-818.

Jurisdiction Over Camaro 

Pursuant to § 29-818

[12-15] In discerning the meaning of a statute, a court 

must determine and give effect to the purpose and intent 

of the Legislature as ascertained from the entire language 

of the statute considered in its plain, ordinary, and popular 

sense, as it is the court’s duty to discover, if possible, the 

Legislature’s intent from the language of the statute itself. 

Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018). 

When interpreting a statute, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, 

or word should be rejected as meaningless or superfluous if 

it can be avoided. McEwen v. Nebraska State College Sys., 

303 Neb. 552, 931 N.W.2d 120 (2019). Under principles of 

statutory construction, the components of a series or collection of statutes pertaining to a certain subject matter may 

be conjunctively considered and construed to determine the 

intent of the Legislature so that different provisions of an act 

are consistent, harmonious, and sensible. Vokal v. Nebraska 

Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d 75 

(2009). When words of a particular clause, taken literally, 

would plainly contradict other clauses of the same statute, 

or lead to some manifest absurdity or to some consequences 

which a court sees plainly could not have been intended, or to 

result manifestly against the general term, scope, and purpose 

of the law, then the court may apply the rules of construction 

to ascertain the meaning and intent of the lawgiver, and bring 

the whole statute into harmony if possible. Pan v. IOC Realty 

Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018). See, also, 
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Vasquez v. CHI Properties, 302 Neb. 742, 925 N.W.2d 304 

(2019) (in construing statute, appellate court will, if possible, 

try to avoid construction which would lead to absurd, unconscionable, or unjust results).

As set forth previously, § 29-818 provides, as relevant 

here, “the court in which such complaint was filed shall have 

exclusive jurisdiction for disposition of the property or funds 

and to determine rights therein, including questions respecting 

the title, possession, control, and disposition thereof.” Section 

29-818 is located in a series of Nebraska statutes on criminal 

procedure titled “Disposition of Seized Property.” See Neb. 

Rev. Stat. §§ 29-818 to 29-829 (Reissue 2016). “This series or 

collection of statutes, as the title suggests, addresses various 

rules pertaining to the possession, control, suppression, disposition, and return of property seized in connection with a criminal proceeding.” State v. Cox, 3 Neb. App. 80, 88, 523 N.W.2d 

52, 59 (1994). Sections 29-818 to 29-820 specifically concern 

seized property. The area where § 29-818 is found suggests 

that the grant of exclusive jurisdiction in the statute is meant to 

relate only to jurisdiction over seized property.

The language at issue in § 29-818 has been restated by the 

Nebraska Supreme Court in the literal and narrow sense in 

which it appears in the statute. See, State v. McGuire, 301 Neb. 

895, 902, 921 N.W.2d 77, 83 (2018) (“a court where a complaint has been filed and where seized property was or may be 

used as evidence has ‘exclusive jurisdiction for disposition of 

the property or funds and to determine rights therein, including questions respecting the title, possession, control, and 

disposition thereof’”); State v. Agee, 274 Neb. 445, 448, 741 

N.W.2d 161, 165 (2007) (“court in which a criminal charge 

was filed has exclusive jurisdiction to determine the rights 

to seized property, and the property’s disposition”). All five 

principles that follow from § 29-818 relate to the custody of 

seized property. See State v. McGuire, supra (listing principles 

of § 29-818). Thus, by its own terms, the jurisdictional precept 

in § 29-818 is limited in scope.
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[16] Under § 29-819, where seized property is no longer 

required as evidence in the prosecution of any complaint or 

information, “the court which has jurisdiction of such property may transfer the same to the jurisdiction of any other 

court . . . where it is shown to the satisfaction of the court 

that such property is required as evidence in any prosecution in 

such other court.” (Emphasis supplied.) A harmonious reading 

of §§ 29-818 and 29-819 is that references to jurisdiction in 

each are to jurisdiction over seized property, not subject matter 

jurisdiction. See, Vokal v. Nebraska Acct. & Disclosure Comm., 

276 Neb. 988, 759 N.W.2d 75 (2009) (components of series of 

statutes pertaining to certain subject matter may be conjunctively considered and construed to determine legislative intent 

so different provisions of act are consistent, harmonious, and 

sensible); Knoell v. Huff, 224 Neb. 90, 395 N.W.2d 749 (1986) 

(where same word is used repeatedly in same act, unless context requires otherwise, word is to have same meaning). We 

note that jurisdiction is not explicitly mentioned in § 29-820, 

which relates to the manner of disposition of different kinds 

of property. See, also, State v. McGuire, supra (holding that 

§ 29-820 applies only where exclusive jurisdiction of court 

under § 29-818 has not been invoked).

Regarding the plain language of §§ 29-818, 29-819, and 

29-820, this court stated:

We believe that the obvious purpose of those provisions in the foregoing statutes which define which court 

has “jurisdiction” over the seized property is to assure 

safekeeping and custody of the property, as well as identifying which court has the authority, should the issue arise, 

to dispose of the property or funds and to determine rights 

therein, including questions respecting the title, possession, control, and disposition thereof. Such provisions 

also outline a mechanism enabling the physical transfer 

of seized property from one court to the other (when 

such a transfer is necessary) and assure accountability for 

the property.
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State v. Cox, 3 Neb. App. 80, 89, 523 N.W.2d 52, 59 (1994) 

(emphasis supplied). This court found that another statute in 

the series (§ 29-827, since repealed), which also related to 

the disposition of seized property, was similar to § 29-819; 

we concluded, “§ 29-827 is concerned with jurisdiction over 

the property, as distinguished from jurisdiction over the case.” 

State v. Cox, 3 Neb. App. at 89, 523 N.W.2d at 59-60 (emphasis supplied). We noted that such a construction harmonized 

the now-repealed section with the “concept and purpose of 

‘jurisdiction’ over seized property as that term is used throughout this series of statutes and that such interpretation is reasonable to accomplish the objectives sought by this legislation.” 

Id. at 90, 523 N.W.2d at 60.

[17,18] We conclude that, where invoked, the grant of 

“exclusive jurisdiction” under § 29-818 gives a criminal trial 

court exclusive jurisdiction over only two issues: disposition of seized property and determination of rights in seized 

property. Therefore, even though the Camaro is in custody of 

the court in the criminal case, § 29-818 itself does not bar the 

district court from exercising subject matter jurisdiction over 

the claims in Huff’s amended complaint. There is no question 

that district courts have general jurisdiction over common-law 

negligence claims such as the one raised in Huff’s amended 

complaint. See, Neb. Const. art. V., § 9 (district courts have 

common-law jurisdiction); Neb. Rev. Stat. § 24-302 (Reissue 

2016) (district courts have general, original, and appellate 

jurisdiction in all matters civil and criminal, except where 

otherwise provided); Kotrous v. Zerbe, 287 Neb. 1033, 846 

N.W.2d 122 (2014) (“common-law” jurisdiction conferred 

to district courts is beyond power of Legislature to limit 

or control).

Therefore, to the extent the district court’s order can be 

read to mean it lacked subject matter jurisdiction because of 

§ 29-818, we do not agree that § 29-818 requires such a determination, but as previously stated, we do agree that the ripeness 

doctrine supports the district court’s dismissal of Huff’s action.
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Ripeness Doctrine

[19,20] A justiciable issue requires a present, substantial 

controversy between parties having adverse legal interests 

susceptible to immediate resolution and capable of present 

judicial enforcement. Stewart v. Heineman, 296 Neb. 262, 892 

N.W.2d 542 (2017). A court decides real controversies and 

determines rights actually controverted, and does not address 

or dispose of abstract questions or issues that might arise in a 

hypothetical or fictitious situation or setting. Id.

[21-23] Ripeness is a justiciability doctrine that courts 

consider in determining whether they may properly decide a 

controversy. Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 

145 (2018). The fundamental principle of ripeness 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. Id. The ripeness doctrine is rooted in the same 

general policies of justiciability as standing and mootness. 

Stewart v. Heineman, supra. As compared to standing, ripeness 

assumes that an asserted injury is sufficient to support standing, but asks whether the injury is too contingent or remote 

to support present adjudication. Id. It is a time dimension of 

standing. Id. (standing requires litigant have such personal 

stake in outcome of controversy as to warrant invocation of 

court’s jurisdiction and justify exercise of court’s remedial 

powers on litigant’s behalf).

[24-26] A determination of ripeness depends upon the circumstances in a given case and is a question of degree. 

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

appellate court uses a two-part inquiry to determine ripeness: 

(1) the jurisdictional question of the fitness of the issues for 

judicial decision and (2) the prudential question concerning the 

hardship to the parties of withholding court consideration. See 

Stewart v. Heineman, supra. This approach is adopted from the 

Eighth Circuit, which has explained that
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“[t]he ‘fitness for judicial decision’ inquiry goes to a 

court’s ability to visit an issue. . . . [I]t safeguards against 

judicial review of hypothetical or speculative disagreements. . . .

“In addition to being fit for judicial resolution, an issue 

must be such that delayed review will result in significant 

harm. ‘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.”

City of Omaha v. City of Elkhorn, 276 Neb. 70, 80, 752 

N.W.2d 137, 145-46 (2008) (quoting Nebraska Public Power 

Dist. v. MidAmerican Energy, 234 F.3d 1032 (8th Cir. 2000)). 

Because ripeness is peculiarly a question of timing, it is the 

situation now rather than the situation at the time of the district 

court’s decision that must govern. Shepard v. Houston, supra. 

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. Id.

From what we can tell, the circumstances of Huff’s criminal case have not changed, as pertinent here, since the district court entered its order dismissing this civil case. In his 

criminal case, in June 2019, Huff appealed the denial of a 

postconviction motion (among other things). We affirmed the 

orders of the district court from which Huff appealed. See 

State v. Huff, No. A-19-537, 2020 WL 2374884 (Neb. App. 

May 12, 2020) (selected for posting to court website). Of relevance here, we concluded from our record in that appeal that 

the district court had not yet ruled on a motion which Huff had 

filed in the criminal case on August 17, 2018, for the return 

of seized property, including the Camaro and its contents. 

Therefore, we did not consider Huff’s claim alleging that the 

district court erred in dismissing his motion for the return of 

seized property. Huff had also asserted that the district court 

erred in failing to order the State to preserve the Camaro; we 
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noted that in his appellate brief he referred to an August 7, 

2019, order in which the district court granted his motion to 

preserve the Camaro. We did not address the merits of Huff’s 

claim regarding that motion because the assigned error was 

not properly before us. Importantly, there is still no indication that the criminal court has decided the disposition of the 

Camaro and its contents or determined the rights in that seized 

property, which continues to be rightfully held in the custody 

of the criminal court.

A closer review of the procedure involved for a person seeking the return of seized property that is held in the custody 

of a criminal court is helpful to the first part of our ripeness 

inquiry—the jurisdictional question of whether the issues in 

Huff’s civil case are fit for judicial decision.

[27] The proper procedure to obtain the return of seized 

property is to apply to the court in which a criminal charge 

was filed for its return. See State v. Agee, 274 Neb. 445, 741 

N.W.2d 161 (2007). See, also, § 29-818. But see Dortch v. City 

of Omaha, 26 Neb. App. 244, 918 N.W.2d 637 (2018) (civil 

replevin action may be available remedy for return of seized 

property when certain investigation concerning seized property 

never resulted in charge being filed).

[28-30] Case law applying and interpreting § 29-818 provides guidance on how proceedings related to a motion for the 

return of seized property are to be conducted. State v. Ebert, 

303 Neb. 394, 929 N.W.2d 478 (2019). When criminal proceedings have terminated, the person from whom property was 

seized is presumed to have a right to its return, and the burden 

is on the government to show that it has a legitimate reason 

to retain the property. Id. One in possession of property has 

the right to keep it against all but those with better title, and 

the mere fact of seizure does not require that entitlement be 

established anew. Id. A motion for the return of seized property is properly denied only if (1) the claimant is not entitled 

to lawful possession of the property (i.e., government presents 

evidence of cognizable claim or right of possession adverse 
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to that of movant-defendant), (2) the property is contraband 

or subject to forfeiture, or (3) the government has some other 

continuing interest in the property (e.g., ongoing investigation, tax lien, imposed fine, or restitution order). See, id.; 

State v. Agee, supra. See, also, State v. Ebert, supra (presumptive right to possession of seized property may be overcome 

when superior title in another is shown by preponderance 

of evidence).

As discussed previously, the district court in Huff’s criminal case has exclusive jurisdiction over the disposition of the 

Camaro and its contents, as well as the determination of the 

rights therein under § 29-818; thus, Huff can seek return of 

his seized property through application to the criminal court. 

See State v. Agee, supra. Once criminal proceedings have terminated, a date yet to be known, Huff will have a presumptive 

right to the return of his seized property currently held in the 

custody of the criminal court, unless the State meets its burden 

to overcome that presumption as to all or some of the seized 

property. See State v. Ebert, supra. Regardless, the presumptive 

right to the return of such property does not lie until Huff’s 

criminal proceedings are over. See id. When that time comes, 

the criminal court will be in a position to exercise its exclusive 

jurisdiction over the seized property and rule on any application for its return following the case law described above as it 

relates to the Camaro and its contents. Additionally, the State 

would be afforded the opportunity to rebut a presumption of 

Huff’s rights in the seized property.

[31] Neither the district court nor this court can speculate 

as to when Huff’s criminal proceedings will end. Nor would 

it be appropriate to hypothesize the outcome of any motion 

for the return of the Camaro and personal property within 

it, because to do so would overstep the exclusive jurisdiction of the criminal court under § 29-818 over such matters. 

Therefore, in this civil action at this time, we cannot accept 

as fact the parties’ apparent assumption that Huff has a present ownership interest in the Camaro and its contents, which 
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Huff claims have been “destroyed” during the time they have 

been held in custody. Until the criminal court decides the 

proper disposition of the seized property and determines rights 

therein, Huff’s negligence claim regarding the same property 

is not ripe as the negligence claim is contingent on whether 

Huff has a present possessory interest in all or some of that 

property. See, Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 

145 (2018) (courts should avoid entangling themselves in 

abstract disagreements based on contingent future events that 

may not occur at all or may not occur as anticipated); Stewart 

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

is time dimension of standing); L. J. Vontz Constr. Co. v. State, 

230 Neb. 377, 432 N.W.2d 7 (1988) (tort actions arise from 

breach of duty imposed by law and protect plaintiff’s interest or right to be free from another’s conduct which causes 

damage or loss to plaintiff’s person or property). We also note 

that the storage of the seized property and its condition may 

change, for better or worse, by the time the criminal court 

makes those decisions. Further factual development, which 

can only occur in the criminal court, is therefore necessary to 

the potential civil negligence dispute. See Shepard v. Houston, 

289 Neb. 399, 855 N.W.2d 559 (2014) (generally, case is ripe 

when no further factual development is necessary to clarify 

concrete legal dispute susceptible to specific judicial relief). 

The issues in Huff’s civil case are not fit for present judicial review.

Regarding the second part of the ripeness inquiry, we cannot find that Huff will experience significant hardship to the 

delay of his civil negligence action where, depending on how 

matters are resolved in the criminal court, he may not have a 

right to pursue his civil negligence action in the first place. 

Also, it is evident that Huff’s criminal proceedings have continued for years at his insistence. Given the circumstances 

here, any hardship to Huff by a delayed review of his civil 

negligence action is minimal.
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[32] Having considered the jurisdictional and prudential 

questions necessitated under the two-part ripeness test, we conclude that Huff’s civil case is not ripe for judicial review. For 

that reason, the district court lacked subject matter jurisdiction to consider Huff’s civil case. See City of Omaha v. City 

of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008) (if action 

is not ready, or “ripe” for judicial determination, then district court lacks subject matter jurisdiction to consider case). 

Accordingly, we agree with the district court’s ultimate conclusion that it lacked subject matter jurisdiction at this time, 

albeit our discussion focused on different grounds, at least in 

part. See State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 

706 (2017) (when record demonstrates decision of trial court 

is correct, although such correctness is based on different 

grounds from those assigned by trial court, appellate court 

will affirm).

Accordingly, the district court properly dismissed Huff’s 

civil action for lack of jurisdiction. And when a trial court 

lacks the power, that is, jurisdiction, to adjudicate the merits of 

a claim, an appellate court also lacks the power to adjudicate 

the merits of the claim. See Davis v. State, 297 Neb. 955, 902 

N.W.2d 165 (2017).

CONCLUSION

For the foregoing reasons, we dismiss this appeal.

Appeal dismissed.