NE Code § 25-21,149 (2021)
2021 Nebraska Revised Statutes|Chapter 25 - Courts; Civil Procedure|25-21,149 - Declaratory judgments; courts of record; jurisdiction.

25-21,149.  Declaratory judgments; courts of record; jurisdiction.Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree. Any action or proceeding seeking a declaratory judgment that any tax, penalty, or part thereof is unconstitutional shall be brought within twelve months after such tax or penalty was levied or assessed.Source   Laws 1929, c. 75, § 1, p. 257;   C.S.1929, § 20-21,140;   R.S.1943, § 25-21,149;   Laws 1949, c. 59, § 1, p. 170;   Laws 1991, LB 829, § 4;  Laws 2014, LB558, § 1. Cross References   Rules and regulations, declaratory judgment, see section 84-911.  Submitting controversy, see sections 25-903 to 25-905. Annotations  1. Scope 2. Effect 3. Jurisdiction 1. Scope This section encompasses the court's power to determine a party's rights under a contract, including a claim that the contract itself is invalid. Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013). A declaratory judgment action under this section is the proper means of challenging the constitutionality of a tax statute. Trumble v. Sarpy County Board, 283 Neb. 486, 810 N.W.2d 732 (2012). When the plaintiff's pleadings in a declaratory judgment action put the defendant on notice of the remedy sought, a trial court may order relief which is clearly within the scope of its declaratory judgment. Conversely, when a plaintiff's requested relief is not clearly within the scope of a court's declaratory judgment, the court should grant such relief only for a plaintiff's concurrent or subsequent cause of action or the plaintiff's application for supplemental relief under section 25-21,156. Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010). A justiciable issue requires a present substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement. City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010). An action for declaratory judgment cannot be used to decide the legal effect of a state of facts which are future, contingent, or uncertain. City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010). The existence of a justiciable issue is a fundamental requirement to a court's exercise of its discretion to grant declaratory relief. City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010). A declaratory judgment action is to declare the rights, status, or other legal relations between the parties. Bentley v. School Dist. No. 025, of Custer County, 255 Neb. 404, 586 N.W.2d 306 (1998). A liability insurer is not permitted to seek, in a direct action under this section, a declaration of noncoverage that is binding in a later action as to a potential claimant against the insured. Medical Protective Co. v. Schrein, 255 Neb. 24, 582 N.W.2d 286 (1998). Where an exclusive statutory remedy is provided, the Uniform Declaratory Judgments Act does not provide an additional remedy. Boettcher v. Balka, 252 Neb. 547, 567 N.W.2d 95 (1997). A declaratory judgment is available to test the constitutionality of a tax statute. Jones v. State, 248 Neb. 158, 532 N.W.2d 636 (1995). The state has not waived its sovereign immunity in declaratory judgment actions, and such actions filed against officers of the state which seek to compel affirmative action on the part of the officials are within the scope of immunity. County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791 (1995). A declaratory judgment action should not be entertained when it is initiated by a prospective tort defendant. Ryder Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994). Nebraska's Uniform Declaratory Judgments Act does not waive the State's sovereign immunity. Concerned Citizens v. Department of Environ. Contr., 244 Neb. 152, 505 N.W.2d 654 (1993). A declaratory judgment action, pursuant to this section, is an appropriate method to obtain a judicial construction of a statute or determination of a statute's validity, including resolution of a challenge to the constitutionality of a statute. State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445 N.W.2d 284 (1989). The use and determination of a demurrer in actions arising under the Uniform Declaratory Judgments Act are controlled by the same principles as apply in other cases. S.I.D. No. 272 of Douglas County v. Marquardt, 233 Neb. 39, 443 N.W.2d 877 (1989). The Uniform Declaratory Judgments Act is available when a present actual controversy exists and all interested persons are parties to the proceedings, and then only when a justiciable issue exists for resolution. Koenig v. Southeast Community College, 231 Neb. 923, 438 N.W.2d 791 (1989); Miller v. Stolinski, 149 Neb. 679, 32 N.W.2d 199 (1948). For purposes of determining whether a litigant is entitled to declaratory relief, existence of a controversy depends not only on the circumstances existing at the commencement of the action but also the circumstances when the judgment is granted. Mullendore v. Nuernberger, 230 Neb. 921, 434 N.W.2d 511 (1989). Unwed father allowed to use declaratory judgment to determine paternity. White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987). A declaratory judgment is an appropriate method to challenge constitutionality of a tax statute. Mullendore v. School Dist. No. 1 of Lancaster County, 223 Neb. 28, 388 N.W.2d 93 (1986). Declaratory action could not be used to contest school reorganization election once the election had been held. Eriksen v. Ray, 212 Neb. 8, 321 N.W.2d 59 (1982). A declaratory judgment action may not be used by an insurance company to determine its obligation to pay when the insured is not yet obligated to pay, and until such time, no actual controversy exists. Allstate Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981). The use of a declaratory judgment remedy as provided by this section is proper in this state to determine the rights and obligations of the insured and the insurance company under an uninsured motorist clause following the rendition of a final judgment against the uninsured motorist. Herrera v. American Standard Ins. Co., 203 Neb. 477, 279 N.W.2d 140 (1979). Where rights of all parties cannot be determined in a conversion action, action under sections 25-21,149 to 25-21,164 is proper when requisite precedent conditions are met. Berigan Bros. v. Growers Cattle Credit Corp., 182 Neb. 656, 156 N.W.2d 794 (1968). Action to determine who was liable on automobile insurance policies was properly brought under this act. Truck Ins. Exchange v. State Farm Mut. Auto. Ins. Co., 182 Neb. 330, 154 N.W.2d 524 (1967). Validity of city ordinance could be determined in declaratory judgment proceedings. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964). Declaratory judgment proceeding was proper to determine question as to constitutional validity of statutes. Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962); Metropolitan Utilities Dist. v. City of Omaha, 171 Neb. 609, 107 N.W.2d 397 (1961); State ex rel. State Railway Commission v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949); Thorin v. Burke, 146 Neb. 94, 18 N.W.2d 664 (1945). Declaratory judgment action brought by Attorney General was proper to determine constitutionality of legislative act. State ex rel. Meyer v. Story, 173 Neb. 741, 114 N.W.2d 769 (1962). Act is available to a public power district to secure a declaration as to reasonableness of rates. York County Rural P. P. Dist. v. O'Connor, 172 Neb. 602, 111 N.W.2d 376 (1961). An action for a declaratory judgment will not be entertained when an equally serviceable remedy has been provided. Scudder v. County of Buffalo, 170 Neb. 293, 102 N.W.2d 447 (1960). Original action in Supreme Court for declaratory judgment as to constitutionality of tax on building and loan stock could be maintained. Anderson v. Herrington, 169 Neb. 391, 99 N.W.2d 621 (1959). Party seeking relief must have a legally protectible interest or right in the controversy. Nebraska Seedsmen Assn. v. Department of Agriculture & Inspection, 162 Neb. 781, 77 N.W.2d 464 (1956). Declaratory judgment is appropriate to determine the validity, construction, or interpretation of a statute when there is a justiciable controversy. Armstrong v. Board of Supervisors of Kearney County, 153 Neb. 858, 46 N.W.2d 602 (1951). Uniform Declaratory Judgment Act and Reclamation Act are not in conflict. Nebraska Mid-State Reclamation District v. Hall County, 152 Neb. 410, 41 N.W.2d 397 (1950). A declaratory judgment action will not be entertained if there is pending other litigation in which the rights of the parties can be determined. Strawn v. County of Sarpy, 146 Neb. 783, 21 N.W.2d 597 (1946). Court is without power to declare the law unless the Uniform Declaratory Judgments Act is complied with. Wightman v. City of Wayne, 144 Neb. 871, 15 N.W.2d 78 (1944). Under the Declaratory Judgments Act, an equity court has the power to determine the parentage of a child. Carlson v. Bartels, 143 Neb. 680, 10 N.W.2d 671 (1943). Action to determine validity of delinquent tax law was properly brought under Declaratory Judgments Act. Tukey v. Douglas County, 133 Neb. 732, 277 N.W. 57 (1938). State of Nebraska and executive departments thereof may seek relief under Declaratory Judgments Act in an original action in Supreme Court. State ex rel. Smrha v. General American Life Ins. Co., 132 Neb. 520, 272 N.W. 555 (1937). Action to determine rights of office holder whose office had been abolished by constitutional amendment was brought under Declaratory Judgments Act. Swanson v. State, 132 Neb. 82, 271 N.W. 264 (1937). Declaratory judgment sought under this statute to determine how liquor license fees should be distributed. School District of Omaha v. Gass, 131 Neb. 312, 267 N.W. 528 (1936). Court may refuse to render declaratory judgment where, if rendered or entered, it would not terminate the controversy giving rise to the proceeding. Arlington Oil Co. v. Hall, 130 Neb. 674, 266 N.W. 583 (1936). Court should, under most circumstances, dismiss action for declaratory judgment where all parties whose rights are affected have not been impleaded in action. Updike Inv. Co. v. Employers Liability Assurance Corporation, 128 Neb. 295, 258 N.W. 470 (1935). Taxpayer having actual and justiciable controversy with taxing authorities as to his status as affected by tax statute is entitled to have questions determined under Declaratory Judgments Act. Moeller, McPherrin & Judd v. Smith, 127 Neb. 424, 255 N.W. 551 (1934). Proceedings for a declaratory judgment will not be entertained where another equally serviceable remedy has been provided by law for the character of action in hand. Stewart v. Herten, 125 Neb. 210, 249 N.W. 552 (1933). Declaratory Judgments Act applies only to actions where there is an actual controversy and justiciable issues presented, and cannot be used to decide moot questions. Banning v. Marsh, 124 Neb. 207, 245 N.W. 775 (1932). Declaratory Judgments Act applies only to actions involving actual controversy and justiciable issues, and therefore is not void as conferring non-judicial powers. Lynn v. Kearney County, 121 Neb. 122, 236 N.W. 192 (1931). Nebraska's Uniform Declaratory Judgments Act does not waive the state's sovereign immunity, and a plaintiff who seeks declaratory relief against the state must find authorization for such remedy outside the confines of that act. Pratt v. Clarke, 8 Neb. App. 199, 590 N.W.2d 426 (1999). Declaratory Judgments Act is applicable to questions involving state taxation. Mid-Continent Airlines v. Nebraska State Board of Equalization and Assessment, 105 F.Supp. 188 (D. Neb. 1952). 2. Effect An action for declaratory judgment is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. The test is whether, in the absence of the prayer for declaratory judgment, the issues presented should properly be disposed of in an equitable as opposed to a legal action. Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994). An action for declaratory judgment under this section is sui generis; whether such an action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. Donaldson v. Farm Bureau Life Ins. Co., 232 Neb. 140, 440 N.W.2d 187 (1989); Boren v. State Farm Mut. Auto. Ins. Co., 225 Neb. 503, 406 N.W.2d 640 (1987). An action for declaratory judgment determines the rights of the parties in a justiciable controversy and is binding on any further adjudication between the parties as the rights so declared. Russell v. First York Sav. Co., 218 Neb. 112, 352 N.W.2d 871 (1984). If an action for declaratory judgment under this section involves a question of fact, the parties are entitled to a jury trial. MFA Ins. Companies v. Mendenhall, 205 Neb. 430, 288 N.W.2d 270 (1980). Constitutionality of Installment Sales Act of 1963 was tested under Declaratory Judgments Act. Stanton v. Mattson, 175 Neb. 767, 123 N.W.2d 844 (1963). Where defendant prayed for entry of declaratory judgment, it was precluded on appeal from contending that such relief was improper. County of Douglas v. OEA Senior Citizens, Inc., 172 Neb. 696, 111 N.W.2d 719 (1961). Under Declaratory Judgments Act, it was proper to submit question of ownership of automobile to a jury. Hawkeye Casualty Co. v. Stoker, 154 Neb. 466, 48 N.W.2d 623 (1951). Declarations made by court in declaratory judgment proceeding have the force and effect of a final judgment or decree. Morrell v. Towle, 141 Neb. 370, 3 N.W.2d 655 (1942). Declaratory judgment law is not a substitute for a new trial or appeal, nor does it operate to supersede former adjudications or proper proceedings already pending in court. Phelps County v. City of Holdrege, 133 Neb. 139, 274 N.W. 483 (1937). Declaratory judgment confirming validity of a trust agreement and directing trustee to pay trust funds to parties entitled thereto is final and binding on the parties to the proceeding, their privies and successors in interest. In re Reynolds Estate, 131 Neb. 557, 268 N.W. 480 (1936). 3. Jurisdiction District courts have inherent equity jurisdiction to resolve custody disputes, and they have jurisdiction over habeas proceedings challenging adoption proceedings. Accordingly, district courts have jurisdiction over a related declaratory judgment action challenging the constitutionality of Nebraska adoption statutes. In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016). The district court did not have jurisdiction to hear a challenge to the constitutionality of a tax statute under this section when the plaintiff filed suit outside the same tax year in which the taxes were levied or assessed. Trumble v. Sarpy County Board, 283 Neb. 486, 810 N.W.2d 732 (2012). The Nebraska Workers' Compensation Court is a "court of record" and, as such, has the authority to enter a declaratory judgment pursuant to the Uniform Declaratory Judgments Act. Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 (1990). The district court has power to retain jurisdiction and grant further relief where it has entered a declaratory judgment declaring the rights of the parties under a contract. First Nat. Bank of Omaha v. Omaha Nat. Bank, 191 Neb. 249, 214 N.W.2d 483 (1974). Courts of record are empowered to render declaratory judgments. Haynes v. Anderson, 163 Neb. 50, 77 N.W.2d 674 (1956). County court may render declaratory judgment. Rohn v. Kelley, 156 Neb. 463, 56 N.W.2d 711 (1953). Court does not lack jurisdiction to render declaratory judgment merely because construction or validity of a penal statute is necessary to a decision. Dill v. Hamilton, 137 Neb. 723, 291 N.W. 62 (1940).