RFD-TV v. WildOpenFence Finance ( 2014 )

Nebraska Advance Sheets
318 288 NEBRASKA REPORTS
which may have prevented this accident. But because it retains
sovereign immunity with respect to such discretionary func-
tions, it cannot be held legally liable for its inaction. For these
reasons, we affirm the judgment of the district court.
Affirmed.
Heavican, C.J., not participating.
RFD-TV, LLC, appellant, v. WildOpenWest
Finance, LLC, doing business as Wow! Cable,
and K nology, I nc., appellees.
___ N.W.2d ___
Filed June 13, 2014. No. S-13-581.
1. Motions to Dismiss: Jurisdiction: Pleadings: Evidence. When a trial court
relies solely on pleadings and supporting affidavits in ruling on a motion to dis-
miss for want of personal jurisdiction, the plaintiff need only make a prima facie
showing of jurisdiction to survive the motion. However, if the court holds an
evidentiary hearing on the issue or decides the matter after trial, then the plaintiff
bears the burden of demonstrating personal jurisdiction by a preponderance of
the evidence.
2. Jurisdiction: Appeal and Error. An appellate court examines the question of
whether the nonmoving party has established a prima facie case of personal juris-
diction de novo.
3. Motions to Dismiss: Appeal and Error. In reviewing the grant of a motion to
dismiss, an appellate court must look at the facts in the light most favorable to
the nonmoving party and resolve all factual conflicts in favor of that party.
4. Judgments: Appeal and Error. An appellate court determines questions of law
independently of the determination reached by the lower court.
5. Courts: Jurisdiction: Pleadings: Affidavits. A trial court may elect to decide
the issue of personal jurisdiction before trial, or it may defer the matter until trial.
A trial court also has discretion in electing whether to decide a matter based on
pleadings and affidavits, or conduct a hearing and receive evidence.
6. Summary Judgment: Motions to Dismiss: Proof. If a motion to dismiss is
treated as one for summary judgment, then the movant carries the burden of
showing that there is no genuine issue as to any material fact.
7. Summary Judgment: Motions to Dismiss: Jurisdiction: Affidavits. When the
issue on a motion to dismiss is personal jurisdiction, affidavits may be submitted
without converting the motion into one for summary judgment.
8. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribu-
nal to subject and bind a particular entity to its decisions.
9. Due Process: Jurisdiction: States. Before a court can exercise personal juris-
diction over a nonresident defendant, the court must determine, first, whether
Nebraska Advance Sheets
RFD-TV v. WILDOPENWEST FINANCE 319
Cite as 288 Neb. 318the long-arm statute is satisfied and, if the long-arm statute is satisfied, second,
whether minimum contacts exist between the defendant and the forum state for
personal jurisdiction over the defendant without offending due process.
10. ____: ____: ____. When a state construes its long-arm statute to confer juris-
diction to the fullest extent permitted by the Due Process Clause, the inquiry
collapses into the single question of whether exercise of personal jurisdiction
comports with due process.
11. ____: ____: ____. Due process for personal jurisdiction over a nonresident
defend­ nt requires that the plaintiff allege specific acts by the defendant which
a
establish that the defendant had the necessary minimum contacts before a
Nebraska court can exercise jurisdiction over a person.
12. Jurisdiction: States. When considering the issue of personal jurisdiction, it is
essential in each case that there be some act by which the defendant purposely
avails himself or herself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws.
13. Due Process: Jurisdiction: States. The benchmark for determining whether the
exercise of personal jurisdiction satisfies due process is whether the defendant’s
minimum contacts with the forum state are such that the defendant should reason-
ably anticipate being haled into court there.
14. States: Parties: Statutes. Parties who reach out beyond one state and cre-
ate continuing relationships and obligations with citizens of another state are
subject to regulation and sanctions in the other state for the consequences of
their activities.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed as modified.
Steven D. Davidson and Krista M. Eckhoff, of Baird Holm,
L.L.P., for appellant.
Megan S. Wright, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., and Vince M. Roche, of Davenport, Evans,
Hurwitz & Smith, L.L.P., for appellees.
Heavican, C.J., Stephan, McCormack, and Cassel, JJ., and
Inbody, Chief Judge.
Heavican, C.J.
I. INTRODUCTION
RFD-TV, LLC (RFD), filed a complaint against
WildOpenWest Finance, LLC, doing business as WOW! Cable
(WOW), and Knology, Inc., for breach of contract related to
the termination of a cable television affiliation agreement.
The defendants moved to dismiss the complaint for lack
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320 288 NEBRASKA REPORTS
of personal jurisdiction. After a hearing, the district court
dismissed the case with prejudice. RFD appeals. We affirm
as modified.
II. BACKGROUND
Appellant, RFD, is a television programming service
focused on the interests of rural and agricultural counties.
RFD is a Delaware limited liability company that claims
Omaha, Nebraska, as its principal place of business. Knology
and WOW are cable television providers operating in several
locations, including Kansas and South Dakota. Knology is a
Delaware corporation with its principal place of business in
Georgia. WOW is a Delaware limited liability company with
its principal place of business in Colorado. Neither Knology
nor WOW has subscribers in the State of Nebraska, and neither
company maintains a physical presence in Nebraska.
On December 14, 2009, RFD executed an affiliation agree-
ment (Sunflower Agreement) with The World Company, doing
business as Sunflower Broadband Corporation (Sunflower).
The Sunflower Agreement granted Sunflower a nonexclu-
sive right and license to distribute RFD programming to
Sunflower’s subscribers in Lawrence, Kansas, in exchange
for a monthly per-subscriber license fee. The Sunflower
Agreement was for an initial term of 5 years, expiring on
December 13, 2014. The Sunflower Agreement provides that
it “shall be governed by, construed, and enforced in accord­
ance with the laws of the State of Nebraska” and states that
“[a]ny dispute arising in or relating to this Agreement shall be
resolved by binding arbitration in Omaha, Douglas County,
Nebraska . . . .” Knology purchased Sunflower’s assets in
August 2010. Prior to acquiring Sunflower, Knology was pro-
viding cable service to subscribers in Sioux Falls and Rapid
City, South Dakota.
In June 2012, Knology became a wholly owned subsidiary
of WOW. In October, Knology and WOW informed RFD that
as of December 1, 2012, they no longer intended to provide
RFD programming to their subscribers. Knology and WOW
ceased distribution of RFD programming and did not pay fees
to RFD in December 2012.
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RFD-TV v. WILDOPENWEST FINANCE 321
Cite as 288 Neb. 318On December 28, 2012, RFD filed a complaint alleging that
Knology had ratified and adopted the Sunflower Agreement
by distributing RFD programming to its subscribers in both
Kansas and South Dakota and paying RFD the monthly fee
according to the pricing structure provided in the Sunflower
Agreement. In its complaint, RFD alleges Knology breached
the Sunflower Agreement when it stopped making monthly fee
payments to RFD before the contract expired.
Knology and WOW (hereinafter collectively appellees) filed
a motion to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(2),
alleging that the district court did not have personal juris-
diction over them and alternatively asking for a declaration
regarding arbitration. The district court held a hearing on
the motion. There was no oral testimony at the hearing, but
the court received evidence in the form of an affidavit from
each party.
Appellees offered into evidence an affidavit from Peter
Smith, senior vice president of programming and advertis-
ing sales for WOW. In Smith’s affidavit, he points out that
RFD’s production facilities and network operations are located
in Nashville, Tennessee, and that the signal for RFD-TV is
uploaded from Nashville. Smith also notes that under Knology’s
asset purchase agreement with Sunflower, Knology assumed
only certain, specified contracts between Sunflower and pro-
grammers like RFD and that the Sunflower Agreement was not
one of the contracts assumed by Knology.
Attempting to refute RFD’s claim that Knology assumed the
Sunflower contract by performing under its terms, Smith states
that Knology is a member of the National Cable Television
Cooperative, Inc. (NCTC), which acquires programming
rights from cable networks on behalf of its members. On
December 9, 2002, NCTC entered into an agreement with
RFD Communications, Inc., allowing NCTC members to dis-
tribute RFD’s programming. The NCTC agreement expired
at the end of 2007. However, after the NCTC agreement
expired, Knology continued to provide RFD services to its
subscribers in South Dakota, paying fees to RFD on a month-
to-month basis.
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322 288 NEBRASKA REPORTS
According to Smith, after Knology acquired Sunflower in
2010, it provided RFD programming to its subscribers in both
Kansas and South Dakota under the continuing month-to-
month arrangements originating from the NCTC agreement.
Knology claims it paid RFD the same rate of $0.154 per sub-
scriber both prior to and after acquiring Sunflower and adding
the Kansas market, suggesting that Knology’s actions were
unaffected by the terms of the Sunflower Agreement. Smith
notes that representatives from RFD tried to convince Knology
to sign an affiliation agreement in 2011 and 2012, but Knology
never signed such an agreement.
Smith asserts that no one from Knology or WOW has
ever traveled to Nebraska to meet with RFD representatives
regarding its services. According to Smith, appellees’ con-
tacts with RFD have been limited to sending licensing fees to
RFD monthly and occasionally communicating remotely with
RFD employees.
After the court received Smith’s affidavit into evidence,
RFD submitted the affidavit of Patrick Gottsch, founder and
president of RFD, in opposition to the motion to dismiss.
Gottsch states that RFD’s corporate headquarters and busi-
ness records are located in Nebraska and that program content
decisions for RFD’s Nashville production studios are made
from Omaha. Gottsch also asserts that Knology paid a lower
fee of $0.10 per subscriber under the NCTC agreement and
that only after acquiring Sunflower did it begin paying RFD
$0.154 per subscriber—a rate Gottsch asserts was calculated
under the terms of the Sunflower Agreement. Gottsch asserts
that Knology would not have been authorized to distribute
RFD programming had the Sunflower Agreement not been
assumed and ratified by Knology. Gottsch also notes that the
NCTC agreement was with RFD Communications, Inc., which
Gottsch suggests was a separate nonprofit entity that ceased
doing business in January 2007.
After the hearing, the district court issued a brief order find-
ing the minimum contacts requirement between appellees, as
nonresident defendants, and the state had not been met and
dismissing the complaint with prejudice.
Nebraska Advance Sheets
RFD-TV v. WILDOPENWEST FINANCE 323
Cite as 288 Neb. 318III. ASSIGNMENTS OF ERROR
RFD assigns, restated, the following errors of the district
court: (1) granting the motion to dismiss and, alternatively, (2)
dismissing the case with prejudice.
IV. STANDARD OF REVIEW
[1] When a trial court relies solely on pleadings and sup-
porting affidavits in ruling on a motion to dismiss for want
of personal jurisdiction, the plaintiff need only make a prima
facie showing of jurisdiction to survive the motion.1 However,
if the court holds an evidentiary hearing on the issue or
decides the matter after trial, then the plaintiff bears the burden
of demonstrating personal jurisdiction by a preponderance of
the evidence.2
[2,3] An appellate court examines the question of whether
the nonmoving party has established a prima facie case of per-
sonal jurisdiction de novo.3 In reviewing the grant of a motion
to dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual
conflicts in favor of that party.4
[4] An appellate court determines questions of law indepen-
dently of the determination reached by the lower court.5
V. ANALYSIS
1. Standard of R eview
[5] A trial court may elect to decide the issue of personal
jurisdiction before trial, or it may defer the matter until trial.
A trial court also has discretion in electing whether to decide
a matter based on pleadings and affidavits, or conduct a hear-
ing and receive evidence. The plaintiff’s burden of proof and
1
See Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191(2005).
2
See id.3
See S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).
4
See McKinney, supra note 1.
5
Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
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324 288 NEBRASKA REPORTS
our standard of review on appeal depend on how the motion to
dismiss was dealt with by the trial court.6
In this case, the trial court held a hearing, but the only evi-
dence submitted by the parties was in the form of affidavits
with accompanying exhibits. Because this hearing fell short of
an evidentiary hearing held “in a manner similar to determin-
ing the issue at trial,”7 we conclude that RFD was required only
to make a prima facie showing of personal jurisdiction over
appellees in order to survive the motion to dismiss.
[6,7] At the hearing, the court indicated to the parties that
because it was accepting evidence, it was necessary to change
the way the motion to dismiss was treated, and that the motion
would now be treated as one for summary judgment. If a
motion to dismiss is treated as one for summary judgment,
then, under Neb. Rev. Stat. § 25-1332 (Reissue 2008), the
movant carries the burden of showing that there is no genuine
issue as to any material fact. We note for the sake of clarity
that while it is true that under § 6-1112(b)(6) of the rules of
pleading, when a matter outside the pleadings is presented by
the parties and accepted by the trial court, a defendant’s motion
to dismiss is to be treated as a motion for summary judgment,
in this case, the motion to dismiss was for lack of personal
jurisdiction under § 6-1112(b)(2). As noted above, when the
issue on a motion to dismiss is personal jurisdiction, affidavits
may be submitted without converting the motion into one for
summary judgment.8 Viewed as the motion to dismiss, and not
as a motion for summary judgment, RFD was required only to
make a prima facie showing of jurisdiction.
2. P ersonal Jurisdiction
In RFD’s first assignment of error, it alleges that the court
erred in dismissing the complaint, because RFD made a prima
6
See Horvath v. Nash, 802 F. Supp. 146 (W.D. Mich. 1992).
7
Cutco Industries v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986). See, also,
Kowalski-Schmidt v. CLS Mortg., Inc., 981 F. Supp. 105 (E.D.N.Y. 1997).
8
See SK Finance SA v. La Plata County, Bd. of Com’rs, 126 F.3d 1272(10th Cir. 1997). See, also, Dairy Farmers of America, Inc. v. Bassett &
Walker, 702 F.3d 472 (8th Cir. 2012).
Nebraska Advance Sheets
RFD-TV v. WILDOPENWEST FINANCE 325
Cite as 288 Neb. 318facie showing that the district court had personal jurisdiction
over appellees. RFD argues two theories for finding personal
jurisdiction: (1) that appellees voluntarily assented to juris-
diction of the courts in Nebraska by consenting to provisions
in the Sunflower Agreement which required arbitration in
Omaha and (2) that appellees have sufficient minimum con-
tacts with Nebraska by establishing a long-term relationship
with a Nebraska business.
[8,9] Personal jurisdiction is the power of a tribunal to sub-
ject and bind a particular entity to its decisions.9 Before a court
can exercise personal jurisdiction over a nonresident defendant,
the court must determine, first, whether the long-arm statute
is satisfied and, if the long-arm statute is satisfied, second,
whether minimum contacts exist between the defendant and the
forum state for personal jurisdiction over the defendant without
offending due process.10
[10] Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536(Reissue 2008), provides that a court may exercise personal
jurisdiction over a person “[w]ho has any . . . contact with
or maintains any . . . relation to this state to afford a basis
for the exercise of personal jurisdiction consistent with the
Constitution of the United States.” When a state construes its
long-arm statute to confer jurisdiction to the fullest extent per-
mitted by the Due Process Clause, the inquiry collapses into
the single question of whether exercise of personal jurisdiction
comports with due process.11
[11-13] Due process for personal jurisdiction over a non-
resident defendant requires that the plaintiff allege specific acts
9
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013); VKGS v.
Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013); S.L., supra note
3; In re Petition of SID No. 1, 270 Neb. 856, 708 N.W.2d 809 (2006);
Diversified Telecom Servs. v. Clevinger, 268 Neb. 388, 683 N.W.2d 338(2004).
10
Abdouch, supra note 9; VKGS, supra note 9; S.L., supra note 3; Brunkhardt
v. Mountain West Farm Bureau Mut. Ins., 269 Neb. 222, 691 N.W.2d 147(2005); Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658 N.W.2d 40(2003).
11
Abdouch, supra note 9; VKGS, supra note 9.
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by the defendant which establish that the defendant had the
necessary minimum contacts before a Nebraska court can exer-
cise jurisdiction over a person.12 When considering the issue
of personal jurisdiction, it is essential in each case that there
be some act by which the defendant purposely avails himself
or herself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of its
laws.13 The benchmark for determining whether the exercise
of personal jurisdiction satisfies due process is whether the
defend­nt’s minimum contacts with the forum state are such
a
that the defendant should reasonably anticipate being haled
into court there.14
(a) Arbitration Clause
RFD first argues that the district court erred in dismissing the
complaint for lack of personal jurisdiction because appellees
voluntarily assented to jurisdiction of the courts in Nebraska
by consenting to provisions in the Sunflower Agreement which
required arbitration in Omaha.
We have held that consent to a valid and enforceable choice
of forum clause in a contract is sufficient to satisfy due proc­
ess, waive the requirement of minimum contacts, and submit a
nonresident to the jurisdiction of the forum state.15 RFD asserts
that arbitration clauses that provide for a particular forum con-
stitute forum selection clauses. In its brief, RFD cites primarily
federal cases suggesting that consent to an arbitration clause
necessarily includes an implicit consent to be sued in the same
state.16 We note that those cases generally involve efforts to
12
Ashby, supra note 5.
13
Clevinger, supra note 9; Kugler Co., supra note 10.
14
Abdouch, supra note 9; VKGS, supra note 9; S.L., supra note 3.
15
McKinney, supra note 1.
16
See, St. Paul Fire and Marine v. Courtney Enterprises, 270 F.3d 621 (8th
Cir. 2001); Matter of Management Recruiters Intern. and Nebel, 765 F.
Supp. 419 (N.D. Ohio 1991); Armstrong v. Associates Intern. Holdings
Corp., 242 Fed. Appx. 955 (5th Cir. 2007).
Nebraska Advance Sheets
RFD-TV v. WILDOPENWEST FINANCE 327
Cite as 288 Neb. 318compel arbitration17 and that here, RFD never sought to compel
arbitration under the Sunflower Agreement.
However, we need not decide whether consent to an arbitra-
tion clause can ever subject a party to jurisdiction in the forum
state, because we find that in this case, RFD has failed to make
a prima facie case that appellees were subject to the arbitra-
tion clause at issue. Although RFD need not prove its breach
of contract claims at the motion to dismiss stage, in order to
subject appellees to jurisdiction in Nebraska, it is necessary to
do more than put forward an unsupported allegation.18
Appellees were not signatories to the Sunflower Agreement.
They also did not expressly assume the agreement when they
purchased Sunflower’s assets. RFD asserts appellees assumed
the contract by performing under its terms. Specifically, RFD
states that appellees paid a lower rate per subscriber prior to
acquiring Sunflower and that after acquiring Sunflower, appel-
lees paid RFD according to the fee schedule provided in the
Sunflower Agreement. However, the evidence in the record
does not support this assertion. Attached to RFD’s affidavit
from Gottsch are invoices showing the rate used to calculate
the fees owed by Knology, but the invoice from 2010 suggests
that Knology paid the same rate both prior to and after the
August 2010 acquisition of Sunflower. We find no other evi-
dence in the record supporting RFD’s assertion.
We conclude that the district court did not err in finding
RFD had failed to make a prima facie showing that appellees
had voluntarily subjected themselves to the jurisdiction of
Nebraska courts by consenting to the arbitration clause in the
Sunflower Agreement.
(b) Minimum Contacts
RFD next argues that the district court erred in finding it
did not have personal jurisdiction over appellees because the
17
See Foster v. Device Partners Intern., LLC, No. C 12-02279(DMR), 2012
WL 6115618 (N.D. Cal. Nov. 21, 2012) (unpublished decision).
18
See Socialist Workers Party v. Attorney General of U. S., 375 F. Supp. 318(1974).
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328 288 NEBRASKA REPORTS
long-term business relationship between RFD and appellees
created sufficient minimum contacts with this state.
[14] Parties who reach out beyond one state and create con-
tinuing relationships and obligations with citizens of another
state are subject to regulation and sanctions in the other state
for the consequences of their activities.19 Mail and telephone
communications sent by a defendant into a forum may count
toward the minimum contacts that support jurisdiction,20 but,
as we noted in Kugler Co. v. Growth Products Ltd.,21 the exis-
tence of a contract with a party in a forum state or the mere
use of interstate facilities, such as telephones and mail, does
not, in and of itself, provide the necessary contacts for personal
jurisdiction. In Kugler Co., we said we would also look at the
prior negotiations between the parties and the contemplated
consequences of their dealings.22
In this case, viewing the evidence in the light most favorable
to RFD, appellees paid licensing fees to a party in this state for
a product received from another state and distributed as a serv­
ice to customers in other states. Appellees also occasionally
used telephone, e-mail, and mail to discuss and pay invoices
from RFD. Although monthly payments were made over the
course of at least 2 years, the evidence in the record suggests
that the actual business dealings between RFD and appellees
were extremely limited; appellees paid to provide services
based on terms negotiated by other parties (Sunflower and
NCTC). The record suggests that the only direct conversation
about contract terms between RFD and appellees consisted of
appellees’ rejecting RFD’s efforts to get appellees to enter into
contract negotiations.
Generally, Nebraska courts would be in the best position to
apply Nebraska law, as required by the choice of law provision
in the Sunflower Agreement. Nonetheless, here, we find that
RFD failed to make a prima facie showing that appellees had
19
Kugler Co., supra note 10.
20
Clevinger, supra note 9.
21
Kugler Co., supra note 10.
22
Id.
Nebraska Advance Sheets
RFD-TV v. WILDOPENWEST FINANCE 329
Cite as 288 Neb. 318sufficient minimum contacts with this state to subject them to
the jurisdiction of our courts. The district court did not err in
dismissing the complaint for lack of personal jurisdiction.
3. Dismissal With P rejudice
In RFD’s second assignment of error, it asserts that the dis-
trict court erred in dismissing the case with prejudice, thereby
preventing RFD from refiling the case in the proper forum. We
find the issue to be less cut-and-dried than the briefs of the par-
ties would suggest.
There is no statutory grant of judicial discretion to decide
whether to dismiss with or without prejudice on a motion to
dismiss for lack of personal jurisdiction.23 Thus, we find this
issue to be a question of law. The Eighth Circuit has said
that “a dismissal with prejudice operates as a rejection of the
plaintiff’s claims on the merits and res judicata precludes fur-
ther litigation.”24 However, the Full Faith and Credit Clause
of the U.S. Constitution requires a court to recognize a judg-
ment from another jurisdiction only if the court rendering the
judgment had jurisdiction over the subject matter and parties.25
Thus, a dismissal for lack of personal jurisdiction, even a dis-
missal with prejudice, should not prevent RFD from pursuing
its claims in an appropriate forum.26
On the other hand, a dismissal with prejudice would pre-
clude RFD from filing a second suit with the same claims in
a Nebraska court. Under the doctrine of collateral estoppel,
the findings in this opinion would have a similar preclu-
sive effective. However, as noted by the Eighth Circuit in
Pohlmann v. Bil-Jax, Inc.,27 because personal jurisdiction is
23
See, Neb. Rev. Stat. § 25-601(1) (Reissue 2008); In re Guardianship of
David G., 18 Neb. App. 918, 798 N.W.2d 131 (2011). Cf. United States v.
Taylor, 487 U.S. 326, 108 S. Ct. 2413, 101 L. Ed. 2d 297 (1988).
24
Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995).
25
See Baker v. General Motors Corp., 522 U.S. 222, 118 S. Ct. 657, 139 L.
Ed. 2d 580 (1998).
26
See Deckert v. Wachovia Student Financial Services, 963 F.2d 816 (5th
Cir. 1992).
27
Pohlman v. Bil-Jax, Inc., 176 F.3d 1110 (8th Cir. 1999).
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330 288 NEBRASKA REPORTS
determined at the time a suit is commenced, it is possible
that due to future events, this legal situation could change.
Although it seems unlikely under the facts of this case, if,
for example, appellees were to relocate to Nebraska, then
personal jurisdiction over appellees in a subsequent suit could
be proper in this state.
We also note that in this case, both parties agreed in briefs
and in arguments before this court that the dismissal should
have been without prejudice. For these reasons, we find that
the district court erred in dismissing the case with prejudice
and its judgment is ordered modified to a dismissal with-
out prejudice.
VI. CONCLUSION
For the foregoing reasons, the decision of the district court
is affirmed as modified.
Affirmed as modified.
Wright, Connolly, and Miller-Lerman, JJ., not participating.
Christopher M. Payne, appellant, v.
Nebraska Department of Correctional
Services et al., appellees.
___ N.W.2d ___
Filed June 13, 2014. No. S-13-627.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum. Supp.
2012 & Supp. 2013), may be reversed, vacated, or modified by an appellate court
for errors appearing on the record.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
3. Constitutional Law: Prisoners: Courts. The U.S. Constitution guarantees pris-
oners a right to access the courts.
4. Prisoners: Courts: Words and Phrases. Meaningful access to the courts is the
capability to bring actions seeking new trials, release from confinement, or vindi-
cation of fundamental civil rights.