Great Plains Livestock v. Midwest Ins. Exch. , 312 Neb. 367 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/07/2022 09:05 AM CDT
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Nebraska Supreme Court Advance Sheets
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367Great Plains Livestock Consulting, Inc.,
and Ki Fanning, appellants, v.
Midwest Insurance Exchange,
Inc., et al., appellees.
___ N.W. ___
Filed September 2, 2022. No. S-21-722.
1. Standing: Jurisdiction: Pleadings: Evidence: Appeal and Error. If a
motion challenging a court’s subject matter jurisdiction is filed after the
pleadings stage, and the court holds an evidentiary hearing and reviews
evidence outside the pleadings, it is considered a “factual challenge.”
Where the trial court’s decision to dismiss for lack of subject matter
jurisdiction is based on a factual challenge, the court’s factual findings
are reviewed under the clearly erroneous standard.
2. Jurisdiction: Appeal and Error. Aside from any factual findings, the
trial court’s ruling on subject matter jurisdiction is reviewed de novo,
because it presents a question of law.
3. Appeal and Error. The grant or denial of a stay of proceedings is
reviewed for an abuse of discretion.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
5. Jurisdiction: Courts. Ripeness is one component of subject matter
jurisdiction; its fundamental principle is that courts should avoid entan-
gling themselves, through premature adjudication, in abstract disagree-
ments based on contingent future events that may not occur at all or may
not occur as anticipated.
6. ____: ____. A determination with regard to ripeness depends upon the
circumstances in a given case and is a matter of degree.
7. Actions: Jurisdiction: Appeal and Error. An appellate court uses a
two-part inquiry to determine ripeness: (1) the fitness of the issues for
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367judicial decision and (2) the hardship to the parties of withholding court
consideration.
8. Negligence: Proof. To prevail in a negligence action, a plaintiff must
prove the defendant’s duty not to injure the plaintiff, breach of duty,
proximate causation, and damages.
9. Courts: Actions. Courts inherently possess the power to stay proceed-
ings when required by the interests of justice.
Appeal from the District Court for Cass County: Michael A.
Smith, Judge. Reversed and remanded for further proceedings.
Andrew D. Weeks, of Baylor Evnen, L.L.P., for appellants.
Brien M. Welch and David A. Blagg, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellee Midwest Insurance
Exchange, Inc.
Sean A. Minahan and Patrick G. Vipond, of Lamson, Dugan
& Murray, L.L.P., for appellees UNICO Group, Inc., and Sean
Krueger.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ., and Kozisek, District Judge.
Funke, J.
INTRODUCTION
Great Plains Livestock Consulting, Inc., and its president,
Ki Fanning (collectively Great Plains), appeal the order of the
district court for Cass County, Nebraska, which dismissed its
complaint for lack of subject matter jurisdiction. Great Plains
alleged that Midwest Insurance Exchange, Inc. (Midwest), as
well as UNICO Group, Inc., and agent Sean Krueger (col-
lectively UNICO), negligently failed to transfer or procure
an errors and omissions insurance policy, which, had it been
in place, would have covered the costs of defense and settle-
ment or judgment for two lawsuits filed against Great Plains
in another state. The district court found that Great Plains’
complaint is not ripe because Midwest’s and UNICO’s liabil-
ity and Great Plains’ damages are currently unknown and
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367because Great Plains may never be found liable in the lawsuits
against it. Great Plains appeals. We reverse, and remand for
further proceedings.
BACKGROUND
In early 2018, Great Plains had an errors and omissions
policy underwritten by Capitol Specialty Insurance Corporation
(Cap Specialty) through Midwest when it approached UNICO
for assistance in procuring various insurance coverages. The
record on appeal does not disclose what, if any, agreements
the parties reached regarding coverage at that time, but Great
Plains notified Midwest on April 18, 2018, that it was mov-
ing its errors and omissions policy. Great Plains subsequently
obtained an errors and omissions policy underwritten by
Lloyd’s London Syndicate 2987 (Lloyd’s) through UNICO on
or about November 11, 2019. This policy was renewed on or
about November 11, 2020.
In late 2020, Great Plains was named a third-party defend­
ant in two lawsuits filed in the Iowa district court for Emmet
County based on consulting work it had performed for Spencer
Ag Center, LLC (Spencer Ag). The parties to the two lawsuits
were different, but both lawsuits complained of negligence
and breach of implied warranty of fitness by Spencer Ag
customers. These customers named Spencer Ag a third-party
defendant, and Spencer Ag, in turn, asserted third-party claims
against Great Plains, alleging Great Plains had provided the
feed ration formulas and feed products to the customers. As of
this appeal, the Iowa lawsuits are pending.
Between early December 2020 and the end of February
2021, Great Plains submitted claims and requests for a tender
of defense and indemnification related to the Iowa lawsuits to
Midwest, UNICO, Cap Specialty, and Lloyd’s. All claims and
requests were denied.
Subsequently, on March 24, 2021, Great Plains brought a
declaratory judgment action against Midwest, UNICO, Cap
Specialty, and Lloyd’s to ascertain whether any policy effective
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367between Great Plains and the insurers covered the events under-
lying the Iowa lawsuits. It also sought recovery of the costs of
the Iowa lawsuits and of its declaratory judgment action.
Great Plains filed a separate negligence lawsuit against
Midwest and UNICO alleging they had a duty to transfer or
procure an errors and omissions policy for it and breached this
duty by failing to ensure the requested policy was in place.
Great Plains further alleged that Midwest’s and UNICO’s
breach of duty had “caused” and “will continue to cause” it
damages because it had to retain counsel at its own expense to
defend the Iowa lawsuits; it will also have to pay any judgment
entered against it in the lawsuits. Great Plains asserted these
costs would have been covered under the requested errors and
omissions policy.
UNICO moved to dismiss Great Plains’ negligence com-
plaint for failure to state a claim under Neb. Ct. R. Pldg.
§ 6-1112(b)(6). UNICO based this motion primarily on the fact
that “[Great Plains] currently do[es] not and cannot provide
. . . the amount of defense cost or potential judgments against
[Great Plains] in the two Iowa lawsuits.” As such, UNICO
argued, Great Plains’ “alleged damages are speculative” and its
complaint is not ripe.
Great Plains filed a statement of disputed facts in opposition
to UNICO’s motion to dismiss, asserting that it had already
incurred attorney fees of approximately $4,000 in the Iowa
lawsuits and $16,000 in its declaratory judgment and negli-
gence actions. Great Plains also moved to stay proceedings on
its negligence complaint pending the resolution of the Iowa
lawsuits. In so doing, Great Plains asserted that the full extent
of its damages is “contingent” on the outcome of these law-
suits, but “not speculative.”
The district court held a hearing on June 21, 2021, at which
the parties to the declaratory judgment action essentially
agreed that Great Plains did not have errors and omissions
coverage for the Iowa lawsuits. The hearing also touched on
Great Plains’ motion to stay, with Midwest’s and UNICO’s
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367position being that Great Plains’ negligence complaint is
“premature” and “not ripe” and should be dismissed, not
stayed. They proposed that Great Plains “bring an action in
negligence or a contribution indemnity” “when and if they
do have any damages in the Iowa case[s].” However, Great
Plains expressed concern about dismissal with the option to
refile later insofar as its claims could be seen to involve pro-
fessional negligence subject to a 2-year statute of limitations,
rather than ordinary negligence subject to a 4-year statute
of limitations.
The district court subsequently issued an order on August 2,
2021, dismissing Great Plains’ negligence complaint on ripe-
ness grounds. In relevant part, the order stated:
The liability of [Midwest and Unico] to [Great Plains] is
currently unknown as is the amount of any damages. In
fact, there may not ever be a finding of liability in the
Iowa litigation. As any claim of [Great Plains] is entirely
dependent on the outcome of the Iowa litigation, the case
is not fit for a judicial decision at this time, and there is
no showing of a hardship to [Great Plains] by withholding
the court’s decision in the case.
The order did not address Great Plains’ motion for a stay.
Midwest filed its own motion to dismiss on August 4, 2021,
because it was unclear whether the earlier order applied to
Midwest. In its motion, Midwest asserted Great Plains’ com-
plaint “is based on a theoretical contingency” that it may be
entitled to contribution or indemnity from Midwest if judg-
ment is entered against it in the Iowa lawsuits. Midwest further
asserted that “[a]t this stage, any claims for contribution and
indemnity or for damages are speculative at best.”
The district court also granted this motion, “consistent with”
its earlier ruling on UNICO’s motion to dismiss. The language
of the order was the same as that in the earlier order, and Great
Plains’ motion to stay was not addressed.
Great Plains appealed to the Nebraska Court of Appeals, and
we moved the matter to our docket.
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367ASSIGNMENTS OF ERROR
Great Plains assigns, restated, that the district court erred in
finding that its negligence complaint is not ripe and in declin-
ing to stay proceedings pending the resolution of the Iowa
lawsuits.
STANDARD OF REVIEW
[1,2] If a motion challenging a court’s subject matter juris-
diction is filed after the pleadings stage, and the court holds
an evidentiary hearing and reviews evidence outside the plead-
ings, it is considered a “factual challenge.” 1 Where the trial
court’s decision to dismiss for lack of subject matter jurisdic-
tion is based on a factual challenge, the court’s factual findings
are reviewed under the clearly erroneous standard. 2 But aside
from any factual findings, the trial court’s ruling on subject
matter jurisdiction is reviewed de novo, because it presents a
question of law. 3
[3] The grant or denial of a stay of proceedings is reviewed
for an abuse of discretion. 4
ANALYSIS
Ripeness
Great Plains argues that in dismissing its complaint on
ripeness grounds, the district court “focus[ed] only on the
prospective settlements or judgments in the two Iowa cases”
and ignored the costs Great Plains has already incurred in
defending the Iowa lawsuits and bringing the declaratory judg-
ment and negligence actions. 5 Midwest and UNICO counter
that Great Plains’ claims “currently require litigating abstract
1
See North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970 N.W.2d 461(2022).
2
Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).
3
Id.4
Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021).
5
Brief for appellants at 8.
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367issues of future and contingent outcomes that may or may not
occur or may not occur as anticipated,” given that the Iowa
lawsuits are ongoing and Great Plains has not yet been found
liable for any act or omission. 6 They also argue that Great
Plains’ own motion to stay proceedings “betrays” that its neg-
ligence complaint is not ripe. 7
We agree with Great Plains that the district court erred in
dismissing its negligence complaint on ripeness grounds given
the facts and circumstances of this case. The district court based
its decision on its view that Midwest’s and UNICO’s “liabil-
ity” and Great Plains’ “damages” are “currently unknown,”
and “there may not ever be a finding of liability in the Iowa
litigation.” The district court is correct that there are numerous
unknowns regarding the claims pending against Great Plains
in Iowa, including whether Great Plains will be found lia-
ble. However, despite these unknowns, the elements of Great
Plains’ negligence complaint as to its attorney fees already
incurred in defending the Iowa lawsuits are not conjectural or
hypothetical. Our finding that Great Plains’ complaint is ripe
is based upon these costs; we offer no opinion regarding the
other damages alleged in the complaint.
[4-6] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal with
the general subject matter involved. 8 Ripeness is one compo-
nent of subject matter jurisdiction; its fundamental principle
is that courts should avoid entangling themselves, through
premature adjudication, in abstract disagreements based on
contingent future events that may not occur at all or may
not occur as anticipated. 9 A determination regarding ripeness
6
Brief for appellee UNICO at 10.
7
Id. at 13.
8
Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).
9
See State ex rel. Wagner v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020).
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367depends upon the circumstances in a given case and is a mat-
ter of degree. 10
[7] In making this determination, we use a two-part inquiry:
(1) the fitness of the issues for judicial decision and (2) the
hardship to the parties of withholding court consideration. 11
The fitness-for-decision inquiry goes to the court’s ability to
visit an issue and safeguards against judicial review of hypo-
thetical or speculative disagreements. 12 Generally, a case is ripe
when no further factual development is necessary to clarify a
concrete legal dispute susceptible to specific judicial relief,
as distinguished from an advisory opinion regarding contin-
gent future events. 13 The hardship inquiry, in turn, goes to the
question of whether delayed review will result in significant
harm. 14 “Harm” includes both the traditional concept of actual
damages—pecuniary or otherwise—and also the heightened
uncertainty and resulting behavior modification that may result
from delayed resolution. 15
For example, in City of Omaha v. City of Elkhorn, 16 we
considered the issue of ripeness in a declaratory judgment
action. In City of Omaha, the plaintiff sought a determination
as to whether severance provisions in certain employment
contracts that the defendant had entered into prior to being
annexed by the plaintiff were enforceable. We determined
that the declaratory judgment action was ripe despite the fact
that a lawsuit challenging the validity of the annexation was
still pending when the declaratory judgment action was filed.
In so doing, we noted that the question of whether the sever-
ance provisions ran afoul of the Nebraska Constitution was
10
Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (2014).
11
See Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
12
Id.13
Shepard v. Houston, supra note 10.
14
See Stewart v. Heineman, supra note 11.
15
Id.16
City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008).
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Cite as 312 Neb. 367“essentially legal in nature” and could be “resolved without
further factual development.” 17 We also noted that deciding
the case at this time would avoid delay and the unnecessary
expenditure of judicial resources in relitigating this question
and resolve the uncertainty about the severance provisions’
enforceability. 18
Similarly, in Shepard v. Houston, 19 we found that a declara-
tory judgment action challenging the constitutionality of a
statute which required that an inmate who refused to submit
a DNA sample forfeit his good time credits was ripe, even
though the statute would not be applied to the inmate until
his release date. We noted that the question of whether the
statute had impermissible retroactive effect as to the inmate
was “essentially legal” and could be “resolved without fur-
ther factual development.” 20 We also noted that although the
inmate could change his mind, this possibility was “more
speculative than the present reality,” given that he had already
refused to submit a sample and professed he would continue
to refuse. 21 In addition, we found that deciding the case at this
time would avoid the waste of judicial resources in relitigating
the issue, as well as potentially “significant hardship” to the
inmate, who might otherwise be unlawfully detained after his
release date. 22
[8] We find that this case, like the declaratory actions in
City of Omaha and Shepard, is ripe, because Great Plains’
negligence complaint can be resolved without further factual
development. As the plaintiff in a negligence action, Great
Plains must prove Midwest’s and UNICO’s duty not to injure
Great Plains, a breach of that duty, proximate causation, and
17
Id. at 82, 752 N.W.2d at 147.
18
Id.19
Shepard v. Houston, supra note 10.
20
Id. at 407, 855 N.W.2d at 566.
21
Id. at 408, 855 N.W.2d at 567.
22
Id.
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Cite as 312 Neb. 367damages. 23 Midwest and UNICO focus their ripeness argument
on the elements of duty and damages. Midwest asserts that
resolution of the Iowa lawsuits is necessary to determine what,
if any, duty it breached by “defining the parameters of the
claims from which Midwest is charged with failing to protect
Great Plains.” 24 Both Midwest and UNICO further assert that
Great Plains’ damages are “too contingent or remote to sup-
port present adjudication” 25 because (1) the costs of defending
the Iowa lawsuits are “currently incomplete and contingent on
[Great Plains’] continuing to defend [itself]” 26; (2) Great Plains
has not been, and may never be, found liable in the Iowa law-
suits; and (3) any act or omission for which Great Plains might
be found liable may not be covered by the allegedly requested
errors and omissions policy.
As to the element of duty, we find that Great Plains’ com-
plaint alleges a duty on the part of Midwest and UNICO that
is neither conjectural or hypothetical nor dependent upon the
outcome of the Iowa lawsuits. Midwest incorrectly relies on
our decisions in U.S. Specialty Ins. Co. v. D S Avionics 27 and
Harleysville Ins. Group v. Omaha Gas Appliance Co. 28 for
the propositions that a declaratory judgment action regarding
insurance coverage is premature when “there is [a pending]
underlying action” involving “identical issues” and ripe only
when “coverage can be determined separately from the under-
lying action.” 29
23
See Susman v. Kearney Towing & Repair Ctr., 310 Neb. 910, 970 N.W.2d
82 (2022).
24
Brief for appellee Midwest at 19.
25
Brief for appellee UNICO at 11.
26
Id. at 10.
27
U.S. Specialty Ins. Co. v. D S Avionics, 301 Neb. 388, 918 N.W.2d 589(2018), modified on denial of rehearing 302 Neb. 283, 923 N.W.2d 367(2019).
28
Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547, 772
N.W.2d 88 (2009).
29
Brief for appellee Midwest at 16 (internal quotation marks omitted).
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367These arguments, however, miss the substance of Great
Plains’ complaint, as well as the point of our earlier decisions
cited above. Great Plains does not allege that Midwest failed
to protect it from specific claims or failed to fulfill the duties
of an insurer as to defense and indemnification. Rather, Great
Plains alleges that Midwest and/or UNICO negligently failed
to transfer or procure an errors and omissions policy, under
which the insurer would have had certain duties to Great
Plains. The determination of whether such a duty existed is not
conjectural or hypothetical pending the outcome of the Iowa
lawsuits; it can be determined in proceedings on Great Plains’
negligence complaint.
Similarly, as to the cases cited by Midwest, we note that
this is a negligence suit, not a declaratory judgment action.
Additionally, the Iowa lawsuits do not raise “identical issues”
insofar as they concern Great Plains’ alleged negligence and
breach of implied warranty of fitness as to feed ration formu-
las and feed products, while this case concerns Midwest’s and
UNICO’s alleged negligence in failing to transfer or procure
an errors and omissions policy. We also note that Midwest has
not pointed to any aspect of the allegedly requested insurance
policy or the facts and circumstances of this case which would
indicate that the actual outcome of the Iowa litigation, as
opposed to the substance of the underlying claims and related
facts, is necessary to determine whether the allegedly requested
policy would cover these claims. 30
30
Compare Cincinnati Ins. Co. v. Becker Warehouse, Inc., 262 Neb. 746,
635 N.W.2d 112 (2001) (rejecting argument that court lacked subject
matter jurisdiction over declaratory judgment action regarding whether
insurance policy covered claims pending resolution of claims because
determination could be made based on policy’s language), with Allstate
Ins. Co. v. Novak, 210 Neb. 184, 313 N.W.2d 636 (1981) (finding that
declaratory judgment action regarding whether insurance policy covered
claim could not be resolved until after claim was resolved because claim
alleged intentional tort, and policy expressly excluded claims arising from
intentional bodily injury).
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GREAT PLAINS LIVESTOCK V. MIDWEST INS. EXCH.
Cite as 312 Neb. 367In turning to the issue of damages, it is undisputed that
Great Plains has defended itself in the Iowa lawsuits, instead
of relying on an insurer to do so, as it would have done under
the allegedly requested errors and omissions policy. We find
that its alleged damages in this regard suffice for purposes of
ripeness. Our recent decision in Susman v. Kearney Towing &
Repair Ctr. 31 helps illustrate this.
Kearney Towing & Repair Ctr. involved a dispute over
whether the statute of limitations on a claim for ordinary neg-
ligence began to run from the time of the defendant’s alleged
negligence in mounting and installing tires on a vehicle or
from when the tread on one of the tires separated, causing
the driver to lose control and the vehicle to roll over. 32 We
found that the claim did not accrue—and the statute of limita-
tions did not begin to run—until the accident occurred. 33 In
reaching this conclusion, we noted that “under longstanding
principles of justiciability, a party is not aggrieved and can-
not institute and maintain suit if any element of that party’s
claim depends upon abstract questions or issues that might
arise in a hypothetical or fictitious situation or setting and
may never come to pass.” 34 As such, the plaintiffs could
not have brought and maintained suit when the tires were
installed merely because they were among the broad group
of persons who might suffer some harm in the future. 35 It
was not until the tread failed and the vehicle rolled over—
nearly 1 year after the tires were installed—that the plaintiffs
suffered an injury and could initiate and maintain a suit for
negligence. 36
31
Kearney Towing & Repair Ctr., supra note 23.
32
Id.33
Id.34
Id. at 921, 970 N.W.2d at 91.
35
Kearney Towing & Repair Ctr., supra note 23.
36
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Cite as 312 Neb. 367Great Plains’ current situation is not like that of the Kearney
Towing & Repair Ctr. plaintiffs prior to their accident. Great
Plains is not seeking damages in the event a claim is filed
against it. Two such claims have already been filed, and the
record shows that Great Plains had incurred approximately
$4,000 in attorney fees in defending these claims as of June
16, 2021. Midwest and UNICO effectively admitted as much
at oral argument when they conceded that they would agree
Great Plains’ complaint is ripe if all it sought to recover was
the approximately $4,000 it had spent in defending the Iowa
lawsuits through June 16. As this admission indicates, the
unknowns that Midwest and UNICO point to do not pertain
to the existence of damages as such, but, rather, the amount of
damages—namely, the total costs of defending the Iowa law-
suits, the amount of any settlement or judgment, and whether
Great Plains is entitled to attorney fees for its declaratory judg-
ment action in light of the prayer for relief in its negligence
complaint and our decision in Tetherow v. Wolfe. 37
Motion to Stay
Great Plains also argues that the district court erred in not
staying proceedings on its negligence complaint until the Iowa
lawsuits are resolved. Midwest and UNICO variously counter
that the district court lacked the power to stay proceedings
once it found it lacked subject matter jurisdiction, that the issue
is not properly before this court on appeal because the district
court did not rule on Great Plains’ motion for a stay, and that
Great Plains failed to provide any argument as to why the dis-
trict court abused its discretion in granting “dismissal in lieu
of a stay.” 38
37
Tetherow v. Wolfe, 223 Neb. 631, 392 N.W.2d 374 (1986) (holding that
one who through tort of another has been required to act in protection of
his or her interests by bringing or defending action against third person is
entitled to recover reasonable compensation for loss of time, attorney fees,
and other expenditures thereby suffered or incurred in earlier action).
38
Brief for appellee UNICO at 14.
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Cite as 312 Neb. 367[9] Stays are often used to regulate the court’s own proceed-
ings or to accommodate the needs of parallel proceedings. 39
Courts inherently possess the power to stay proceedings when
required by the interests of justice. 40
Because we reverse the district court’s finding that Great
Plains’ complaint is not ripe, we express no opinion on whether
Great Plains’ motion to stay has merit. In determining whether
to exercise this power on remand, the trial court should bal-
ance the competing needs of the parties, taking into account,
among other things, the interest of the courts, the probability
that the proceeding will work a constitutional violation on the
movant, the presence or absence of hardship or inequity, and
the burden of proof. 41
CONCLUSION
We conclude that Great Plains’ action was ripe. Accordingly,
we reverse, and remand for further proceedings.
Reversed and remanded for
further proceedings.
Stacy, J., not participating.
39
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
40
Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996),
disapproved on other grounds, Webb v. American Employers Group, 268
Neb. 473, 684 N.W.2d 33 (2004).
41
See id.