NE Code § 25-824 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-824 - Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.

25-824.  Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.(1) A pleading shall not be used against a party in any criminal prosecution or action or proceeding for a penalty or forfeiture as proof of a fact admitted or alleged in such pleading. If a pleading is frivolous or made in bad faith, it may be stricken. The signature of a party or of an attorney on a pleading constitutes a certificate by him or her that he or she has read the pleading; that to the best of his or her knowledge, information, and belief there is good ground for the filing of the pleading; and that it is not interposed for delay.(2) Except as provided in subsections (5) and (6) of this section, in any civil action commenced or appealed in any court of record in this state, the court shall award as part of its judgment and in addition to any other costs otherwise assessed reasonable attorney's fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which a court determines is frivolous or made in bad faith.(3) When a court determines reasonable attorney's fees or costs should be assessed, it shall allocate the payment of such fees or costs among the offending attorneys and parties as it determines most just and may charge such amount or portion thereof to any offending attorney or party.(4) The court shall assess attorney's fees and costs if, upon the motion of any party or the court itself, the court finds that an attorney or party brought or defended an action or any part of an action that was frivolous or that the action or any part of the action was interposed solely for delay or harassment. If the court finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct, including, but not limited to, abuses of civil discovery procedures, the court shall assess attorney's fees and costs.(5) No attorney's fees or costs shall be assessed if a claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in this state or if, after filing suit, a voluntary dismissal is filed as to any claim or action within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that he or she would not prevail on such claim or action.(6) No party who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that his or her action or defense or any part of such action or defense was frivolous or made in bad faith, except that this subsection shall not apply to any situation in which an attorney licensed to practice law in the state is appearing without an attorney, in which case he or she shall be held to the standards for attorneys prescribed in this section.Source   R.S.1867, Code § 113, p. 412;   R.S.1913, § 7684;   Laws 1915, c. 144, § 1, p. 313;   C.S.1922, § 8628;   C.S.1929, § 20-824;   R.S.1943, § 25-824;   Laws 1969, c. 182, § 1, p. 774;   Laws 1983, LB 277, § 1;   Laws 1987, LB 261, § 1. Annotations  1. Verification 2. Frivolous or bad faith pleading 3. Attorney's fees 4. Miscellaneous 1. Verification The failure of a party to sign an answer is waived if not raised before trial. Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991). Want of verification is not a jurisdictional defect. Northup v. Bathrick, 80 Neb. 36, 113 N.W. 808 (1907). Verification is not necessary to petition in error. Newlove v. Woodward, 9 Neb. 502, 4 N.W. 237 (1880). Failure to verify is not ground for dismissal. Fritz v. Barnes, 6 Neb. 435 (1877). Verification on belief of affiant is sufficient. Harden v. Atchison & N. R. R. Co., 4 Neb. 521 (1876). Agent or attorney may make verification. Cropsey v. Wiggerhorn, 3 Neb. 108 (1873). 2. Frivolous or bad faith pleading A cognizable claim brought with a reasonable belief that discovery would support its allegations is not frivolous. George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 N.W.2d 510 (2020). A frivolous action is one in which a litigant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant's position. The term "frivolous" connotes an improper motive or legal position so wholly without merit as to be ridiculous. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010). Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010). A frivolous action is one in which a litigant asserts a legal position wholly without merit, that is, without rational argument based on law and evidence to support the litigant's position. Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664 N.W.2d 23 (2003). The term frivolous, as used in subsection (2) of this section, connotes an improper motive or legal position so wholly without merit as to be ridiculous. Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664 N.W.2d 23 (2003); Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002); Behrens v. American Stores Packing Co., 236 Neb. 279, 460 N.W.2d 671 (1990). "Frivolous" means an attempt to relitigate the same issues resolved in prior proceedings with the same parties or a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position. Cox v. Civil Serv. Comm. of Douglas Cty., 259 Neb. 1013, 614 N.W.2d 273 (2000). Although appellant's burden of proof on appeal was difficult, the appeal was not considered frivolous, and therefore, there was no basis for an award of attorney fees pursuant to this section because appellant did not attempt to relitigate the same issues resolved in prior proceedings with the same parties and appellant's argument was not wholly without merit. Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998). A party forced to defend a frivolous action may recover his or her attorney fees; a frivolous action is one in which a litigant asserts a legal position wholly without merit, that is, without rational argument based on law and evidence. Zimmerman v. FirsTier Bank, 255 Neb. 410, 585 N.W.2d 445 (1998). For the purposes of subsection (2) of this section, "frivolousness" is defined as being "a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position". Foiles v. Midwest Street Rod Assn. of Omaha, Inc., 254 Neb. 552, 578 N.W.2d 418 (1998). Pursuant to subsection (2) of this section, in determining sanctions, the court uses its discretion in determining the appropriate cost or fee permitted by this section. Malicky v. Heyen, 251 Neb. 891, 560 N.W.2d 773 (1997). As used in subsection (2) of this section, "frivolous" means a legal position wholly without merit, that is, without rational argument based on law and evidence to support litigant's position in the lawsuit. Surratt v. Watts Trucking, 249 Neb. 35, 541 N.W.2d 41 (1995). For the purpose of this section, "frivolous" is defined as being a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994). As used in subsection (2) of this section concerning allowance of an attorney fee, "frivolous" means a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. Nebraska Pub. Emp. v. City of Omaha, 244 Neb. 328, 506 N.W.2d 686 (1993). A legal position is frivolous if the position is wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993). Under subsection (2) of this section, the Supreme Court applies an abuse-of-discretion standard to district court decisions concerning the imposition of sanctions for frivolous lawsuits. Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991). The attorney fees generated in defending against a frivolous appeal are authorized under subsection (2) of this section regardless of the fact that the fees were not requested or ordered in the trial court. First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990). The term "frivolous," as used in this section, connotes an improper motive or legal position wholly without merit. Peterson v. Don Peterson & Assoc. Ins. Agency, 234 Neb. 651, 452 N.W.2d 517 (1990). A city's defense to a hospital's action to recover for services was frivolous where the hospital sought to recover for services rendered to indigent prisoners and the Nebraska Supreme Court had held that the city was liable in an earlier suit. Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 429 N.W.2d 347 (1988). All doubts as to whether an action is frivolous should be resolved in favor of the petitioner. Sanctions should not be imposed except in the clearest cases. Shanks v. Johnson Abstract & Title, 225 Neb. 649, 407 N.W.2d 743 (1987). This section is authority for granting fees to a party defendant when the party initiating the court proceeding does so vexatiously. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985). But for the fact that the amendment to this section permitting the assessment of reasonable expenses, including attorney fees, to attorneys is new, a portion of the attorney fee awarded to the defendants would have been taxed to the plaintiffs' attorneys. Graham v. Waggener, 219 Neb. 907, 367 N.W.2d 707 (1985). The term "frivolous," as used in this section, providing for the award of attorney fees for the bringing of a frivolous claim, connotes an improper motive or legal position so wholly without merit as to be ridiculous. Shandera v. Schultz, 23 Neb. App. 521, 876 N.W.2d 667 (2016). An argument that a referendum vote repealing a statute was retroactive to the statute's effective date, where the Nebraska Supreme Court had previously held that the operation of the statute had not been suspended pending the referendum vote, was not frivolous. Haskell v. Madison Cty. Sch. Dist. No. 0001, 17 Neb. App. 669, 771 N.W.2d 156 (2009). An appeal from an order overruling a pretrial motion to dismiss was not frivolous and did not entitle the appellee to an award of attorney fees or costs where no prior Nebraska case had addressed the finality of such an order. Qwest Bus. Resources v. Headliners—1299 Farnam, 15 Neb. App. 405, 727 N.W.2d 724 (2007). The trial court did not abuse its discretion in denying attorney fees under subsection (2) of this section even though the plaintiff's suit was wrongly commenced, because the suit was not frivolous. Pipe and Piling Supplies (U.S.A.) Ltd. v. Betterman & Katelman, 8 Neb. App. 475, 596 N.W.2d 24 (1999). The term "frivolous," as used in subsection (2) of this section, means a legal position wholly without merit, that is, without a rational argument based on law and evidence to support the litigant's position in the lawsuit. Janet K. v. Kevin B., 5 Neb. App. 169, 556 N.W.2d 270 (1996). 3. Attorney's fees Attorney fees may be assessed when a party persists in asserting a claim after it knows or reasonably should know it would not prevail on the claim. George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 N.W.2d 510 (2020). A trial court's decision awarding or denying attorney fees under this section will be upheld absent an abuse of discretion. Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). Under subsection (2) of this section, attorney fees shall be awarded against a party who alleged a claim or defense that the court determined was frivolous, interposed any part of the action solely for delay or harassment, or unnecessarily expanded the proceeding by other improper conduct. Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). When a motion for attorney fees under this section is made prior to the judgment of the court in which the attorney's services were rendered, the judgment will not become final and appealable until the court has ruled upon that motion. Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015). A motion for attorney fees pursuant to this section must be made prior to the judgment of the court in which the attorney's services were rendered. When a motion for attorney fees is made prior to judgment, the judgment will not become final and appealable until the court has ruled upon the motion. Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002). In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002). An award of fees under this section may be taxed against an offending attorney. Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 573 N.W.2d 467 (1998). On appeal, a trial court's decision allowing or disallowing an attorney fee will be upheld in the absence of the trial court's abuse of discretion. Lincoln Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d 898 (1995); Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993); Janet K. v. Kevin B., 5 Neb. App. 169, 556 N.W.2d 270 (1996). Subsection (2) of this section provides generally that a court can award reasonable attorney fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense that a court determines is frivolous or made in bad faith. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018). A jury's special finding does not abrogate the trial court's discretion to determine whether a party is entitled to attorney fees under subsection (2) of this section. Harrington v. Farmers Union Co-op. Ins. Co., 13 Neb. App. 484, 696 N.W.2d 485 (2005). Construing subsection (2) of this section in pari materia with section 25-824.01, the use of the term "shall" in this subsection is directory, rather than mandatory; Nebraska's statutory scheme requires the trial court to "exercise its sound discretion" in determining whether to award attorney fees, and whether a claim or defense was made in bad faith is but one factor to be considered by the trial court. Harrington v. Farmers Union Co-op. Ins. Co., 13 Neb. App. 484, 696 N.W.2d 485 (2005). 4. Miscellaneous Where an attorney pursues a motion for recusal that is frivolous or made in bad faith, the district court has jurisdiction to enter a sanction under this statute when it is timely requested, regardless of whether the district court lacked jurisdiction to adjudicate the merits of the underlying dispute. State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883 N.W.2d 69 (2016). A proposed order dismissing a case with qualifications or conditions does not constitute a “voluntary dismissal” within the meaning of subsection (5) of this section. White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013). Under code, an answer, except so far as statements therein may involve admissions against interest, has been wholly deprived of the characteristics of evidence. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).