Clark v. Tyrrell

CoNCLUSIoN
For the foregoing reasons, we reverse the decision of the dis-
trict court and remand the matter to the district court for entry of
an order rescinding the agreement for sale of real estate between
the parties executed December 29, 2004. Because the purpose
of rescission is to place the parties in status quo, that is, to
return them to their position which existed before the rescinded
contract, see Kracl v. Loseke, supra, the district court shall
consider the Holoubeks’ claims for damages upon the record
previously made.
reversed And remAnded WitH directions .
irWin, Judge, participating on briefs.
J oHn c. clArk , AppellAnt And cross -Appellee , v . les tyrrell ,
director of tHe stAte reAl estAte commission , And
tHe stAte of nebrAskA ex rel . stAte reAl estAte
commission , Appellees And cross -AppellAnts .
750 N.W.2d 364
Filed May 20, 2008. 	No. A-07-231.
1. Administrative Law: Real Estate: Final Orders: Appeal and Error. Final
orders of the State real estate Commission are appealed in accordance with the
Administrative Procedure Act.
2. Administrative Law: Final Orders: Courts: Appeal and Error. In reviewing
final administrative orders under the Administrative Procedure Act, the district
court functions not as a trial court but as an intermediate court of appeals.
3. Administrative Law: Appeal and Error. In an appeal under Neb. rev. Stat.
§ 84-917(5)(a) (Cum. Supp. 2006), the district court conducts a de novo review of
the record of the agency.
4. Administrative Law: Courts: Appeal and Error. In a de novo review by a
district court of the decision of an administrative agency, the level of discipline
imposed by the agency is subject to the district court’s power to affirm, reverse, or
modify the decision of the agency or to remand the case for further proceedings.
5. 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 may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
6. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is not arbitrary, capricious, or unreasonable.
692 	16 NeBrASkA APPeLLATe rePorTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

7. Judgments: Appeal and Error. Whether a decision conforms to law is by defi-
nition a question of law, in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
8. Criminal Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution protects against three distinct abuses: (1)
a second prosecution for the same offense after acquittal, (2) a second prosecu-
tion for the same offense after conviction, and (3) multiple punishments for the
same offense.
9. Constitutional Law: Double Jeopardy. The protection provided by Nebraska’s
double jeopardy clause is coextensive with that provided by the U.S. Constitution.
10. Statutes: Words and Phrases. A penal statute is one by which a forfeiture
is imposed for transgressing the provisions of the act and where the extent of
liability imposed is not measured or limited by the damage caused by the act
or omission.
11. Double Jeopardy: Legislature: Intent: Appeal and Error. In analyzing whether
a penalty or sanction constitutes punishment for purposes of double jeopardy,
an appellate court must inquire (1) whether the Legislature intended the statu-
tory sanction to be criminal or civil and (2) whether the statutory sanction is so
punitive in purpose or effect as to transform what was clearly intended as a civil
sanction into a criminal one.
12. Statutes: Legislature: Intent. Whether the Legislature intended a civil or crimi-
nal sanction is simply a matter of statutory construction.
13. Statutes: Legislature: Intent: Proof. once a determination is made that a sanc-
tion was intended to be civil in nature, a court will reject the Legislature’s manifest
intent only where a party challenging the statute provides the clearest proof that
the statutory scheme is so punitive in either purpose or effect as to negate the
State’s intention.
14. Statutes: Legislature: Intent. In analyzing whether the purpose or effect of a
civil sanction statute is so punitive as to negate the Legislature’s intent, the fol-
lowing factors are considered: (1) whether the sanction involves an affirmative
disability or restraint, (2) whether it has historically been regarded as a punish-
ment, (3) whether it comes into play only on a finding of scienter, (4) whether
its operation will promote the traditional aims of punishment—retribution and
deterrence, (5) whether the behavior to which it applies is already a crime, (6)
whether an alternative purpose to which it may rationally be connected is assign-
able for it, and (7) whether it appears excessive in relation to the alternative
purpose assigned.
15. ____: ____: ____. In analyzing whether the purpose or effect of a civil sanction
statute is so punitive as to negate the Legislature’s intent, the factors must be
considered in relation to the statute on its face and are helpful, but are neither
exhaustive nor dispositive.
16. Double Jeopardy. The Double Jeopardy Clause protects against only multiple
criminal punishments or prosecutions.
17. Double Jeopardy: Licenses and Permits: Revocation. The State can discipline
and regulate professionals, including suspending the privilege to practice, without
running afoul of the Double Jeopardy Clause.
18. ____: ____: ____. The revocation or suspension of a professional license gen-
erally does not constitute punishment for the purposes of double jeopardy
CLArk v. TYrreLL 	693
Cite as 16 Neb. App. 692

analysis, but, rather, serves the remedial purpose of protecting the public from
unfit practitioners.
19. Administrative Law: Due Process: Notice: Evidence. In proceedings before
an administrative agency or tribunal, procedural due process requires notice,
identification of the accuser, factual basis for the accusation, reasonable time and
opportunity to present evidence concerning the accusation, and a hearing before
an impartial board.
20. Constitutional Law: Courts: Jurisdiction: Statutes. The Nebraska Court of
Appeals cannot determine the constitutionality of a statute, yet when necessary
to a decision in the case before it, the court does have jurisdiction to determine
whether a constitutional question has been properly raised.
21. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal and Error.
To properly raise a challenge to the constitutionality of a statute, a litigant is
required to strictly comply with Neb. Ct. r. of Prac. 9e (rev. 2006) and to prop-
erly raise and preserve the issue before the trial court.
22. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is not appropriate for consideration on appeal.
23. Supersedeas Bonds: Appeal and Error. The trial court may in its discretion
grant supersedeas in cases not specified in Neb. rev. Stat. § 25-1916 (Cum. Supp.
2006). An allowance of supersedeas in such a case may be granted in such an
amount and on such conditions as the court determines necessary for the protec-
tion of the parties.
Appeal from the District Court for Lancaster County: kAren
b. floWers, Judge. Affirmed.
robert r. otte, of Morrow, Poppe, otte & Watermeier, P.C.,
L.L.o., for appellant.
Adam J. Prochaska and, on brief, Neal e. Stenberg, of
Harding & Schultz, P.C., L.L.o., for appellees.
sievers , moore, and cAssel, Judges.
moore, Judge.
INTroDUCTIoN
John C. Clark appeals from a decision of the district court for
Lancaster County affirming the suspension of John’s real estate
broker’s license by Nebraska’s State real estate Commission
(NreC). Les Tyrrell, director of the NreC, and the “State of
Nebraska ex rel. State real estate Commission” (collectively
the State) have cross-appealed. Because the district court’s deci-
sion conforms to the law, is supported by competent evidence,
and is not arbitrary, capricious, or unreasonable, we affirm.
694 	16 NeBrASkA APPeLLATe rePorTS

BACkGroUND
The record shows that John holds a real estate broker’s
license in both Nebraska and Iowa and is the designated bro-
ker for Why USA Independent Brokers realty (Why USA), a
licensed real estate firm in omaha, Nebraska. Among the real
estate agents affiliated with John is his son, David Clark, who
is licensed as a real estate agent only in Nebraska.
In January or February 2004, rex and/or Diane Terry called
Why USA and spoke to David about their interest in buying
a house within a 50-mile radius of Bellevue, Nebraska. The
Terrys asked David to help them in locating such a house, and
David identified various houses in omaha and showed them to
the Terrys. The Terrys were also conducting their own research
and located a house they wanted to see in Carter Lake, Iowa.
The Terrys called David, who agreed to show them the property.
It was not until sometime after David and the Terrys arrived at
the property that David realized the house was in Iowa and that
he was not licensed to show it to them or provide them with
assistance in purchasing it.
David spoke with John about the Terrys’ interest in the Carter
Lake property, and together, David and John determined that if
the Terrys pursued their interest, John would be “the essential
realtor of record.” The Terrys later called David and told him
they were considering making an offer on the Carter Lake house
and asked to see it again. David met them at the property and
brought with him a standard real estate purchase agreement.
David discussed an offer with the Terrys and completed the offer
form with them, which the Terrys signed. David then returned
to the Why USA offices, where, at some point, John signed the
offer as a witness and as an agent. David communicated the
offer to the sellers, who made a counteroffer. David communi-
cated the counteroffer to the Terrys, who accepted it. David then
performed whatever tasks remained for a buyer’s agent to do
with respect to closing on the Carter Lake property.
Because of problems that occurred later, which are not rele-
vant to this proceeding, it came to the attention of the real
estate commissions in both Iowa and Nebraska that David had
represented a buyer with respect to a sale in Iowa without the
requisite license and that John, his broker, had permitted, if not
CLArk v. TYrreLL 	695
Cite as 16 Neb. App. 692

facilitated, his doing so. John admitted wrongdoing before the
Iowa real estate Commission (IreC) and paid a fine.
In July 2005, the NreC initiated proceedings against John,
alleging that John had violated Neb. rev. Stat. § 81-885.24(22)
and (29) (reissue 2003) in various regards. A hearing was held
before the NreC on January 18, 2006. The NreC determined
that John demonstrated unworthiness to act as a broker in vio-
lation of § 81-885.24(29). The penalty phase occurred immedi-
ately thereafter, and we have set forth relevant details of what
occurred during the penalty phase of the hearing in the analysis
section below. The NreC ordered that John’s license be sus-
pended for 2 years, all but 60 days of which suspension were
to be served on probation. The NreC also ordered that within
1 year, John complete certain continuing education require-
ments in addition to the usual mandatory continuing education
requirements for brokers. John appealed the decision of the
NreC to the district court.
on January 30, 2007, the district court entered an order rul-
ing on John’s appeal. In considering the NreC’s finding of a
violation of § 81-885.24(29), the court determined that John’s
wrongdoing was something more than a simple failure to ade-
quately supervise David. The court found that John knowingly
aided David in violating the licensing regulations by represent-
ing himself to be the Terrys’ agent when, in fact, he was not.
The court found that John’s actions evidenced a blatant disre-
gard for the rules of his profession and clearly demonstrated
unworthiness to act as a broker.
The district court rejected John’s argument that because he
had already been disciplined in Iowa, subjecting him to disci-
pline in Nebraska constituted double jeopardy. The court found
that the present proceeding was not a criminal proceeding and
that John had not been subjected to any criminal penalties.
In considering John’s argument that the NreC had used his
prior disciplinary history to enhance the discipline imposed in
this case, the district court noted the process that had been fol-
lowed by the NreC during the penalty phase of the hearing
and set forth the disciplinary history revealed by the record.
The court noted that John does not argue that the information
brought forth in the hearing before the NreC was incorrect.
696 	16 NeBrASkA APPeLLATe rePorTS

The court determined that John was not given an enhanced
penalty by the NreC, noting that the discipline imposed was
well within the range of sanctions permissible by statute. The
court determined that the NreC would have been remiss in
deciding what sanction, within the permissible range of sanc-
tions, to impose if it had not first looked at John’s disciplinary
history. The court disagreed with John’s suggestion that the due
process applicable to criminal sentencing should be applied to
civil penalties such as this one. Finally, the court determined
that the sanction imposed was not excessive.
on February 28, 2007, John filed notice of his intent to
appeal the district court’s decision to this court. Also on that
date, John filed a motion in the district court seeking a stay of
execution, during the pendency of his appeal to this court, of
the sanctions imposed by the NreC. John also requested that
the district court set the amount of any necessary supersedeas
bond. In an order entered on April 5, the court found that the
motion fell within the court’s discretionary power to grant or
deny and granted the motion. The court set the supersedeas
bond in the amount of $275. The State takes issue with the
court’s grant of a stay and has accordingly perfected a cross-
appeal to this court.
ASSIGNMeNTS oF error
John asserts that the district court erred by (1) concluding
that John’s discipline by the NreC did not violate double jeop-
ardy in light of the discipline imposed by the IreC, (2) decid-
ing that the NreC’s consideration of John’s prior disciplinary
record before the NreC did not violate due process, (3) finding
that John’s conduct constituted unworthiness to act as a broker,
and (4) determining that the level of discipline imposed by the
NreC was not excessive.
on cross-appeal, the State asserts, consolidated and restated,
that the district court erred by ordering a stay of execution,
pending resolution of this appeal, of the discipline imposed
against John.
STANDArD oF reVIeW
[1-4] Final orders of the NreC are appealed in accordance
with the Administrative Procedure Act. See Neb. rev. Stat.
CLArk v. TYrreLL 	697
Cite as 16 Neb. App. 692

§ 81-885.30 (reissue 2003). In reviewing final administrative
orders under the Administrative Procedure Act, the district
court functions not as a trial court but as an intermediate court
of appeals. Betterman v. Department of Motor Vehicles, 273
Neb. 178, 728 N.W.2d 570 (2007). In an appeal under Neb.
rev. Stat. § 84-917(5)(a) (Cum. Supp. 2006), the district court
conducts a de novo review of the record of the agency. Tyson
Fresh Meats v. State, 270 Neb. 535, 704 N.W.2d 788 (2005).
In a de novo review by a district court of the decision of an
administrative agency, the level of discipline imposed by the
agency is subject to the district court’s power to affirm, reverse,
or modify the decision of the agency or to remand the case
for further proceedings. Rainbolt v. State, 250 Neb. 567, 550
N.W.2d 341 (1996).
[5-7] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record. Thorson v. Nebraska
Dept. of Health & Human Servs., 274 Neb. 322, 740 N.W.2d
27 (2007). When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is not arbitrary, capri-
cious, or unreasonable. Id. Whether a decision conforms to law
is by definition a question of law, in connection with which
an appellate court reaches a conclusion independent of that
reached by the lower court. Id.
ANALYSIS
Double Jeopardy.
[8,9] John asserts that the district court erred by conclud-
ing that John’s discipline by the NreC did not violate double
jeopardy in light of the discipline imposed by the IreC. The
Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution protects against three distinct abuses: (1) a second
prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) mul-
tiple punishments for the same offense. State v. Miner, 273
Neb. 837, 733 N.W.2d 891 (2007). The protection provided
698 	16 NeBrASkA APPeLLATe rePorTS

by Nebraska’s double jeopardy clause is coextensive with that
provided by the U.S. Constitution. Id. The question in this
case is whether John has received multiple punishments for the
same offense.
[10] John relies on the fact that the Nebraska Supreme Court
has determined that § 81-885.24 is penal in nature and must
be strictly construed. See Hancock v. State ex rel. Real Estate
Comm., 213 Neb. 807, 331 N.W.2d 526 (1983). A penal statute
is one by which a forfeiture is imposed for transgressing the
provisions of the act and where the extent of liability imposed
is not measured or limited by the damage caused by the act or
omission. Id. A determination that a statute is penal in nature,
however, is not dispositive of the question of whether the pen-
alty contemplated by the statute constitutes punishment for
purposes of double jeopardy.
[11-16] In analyzing whether a penalty or sanction constitutes
punishment for purposes of double jeopardy, an appellate court
must inquire (1) whether the Legislature intended the statutory
sanction to be criminal or civil and (2) whether the statutory
sanction is so punitive in purpose or effect as to transform what
was clearly intended as a civil sanction into a criminal one. See
State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001). Whether
the Legislature intended a civil or criminal sanction is simply
a matter of statutory construction. Id. once a determination
is made that a sanction was intended to be civil in nature, a
court will reject the Legislature’s manifest intent only where
a party challenging the statute provides the clearest proof that
the statutory scheme is so punitive in either purpose or effect
as to negate the State’s intention. Id. In analyzing whether the
purpose or effect of a civil sanction statute is so punitive as to
negate the Legislature’s intent, the following factors are consid-
ered: (1) whether the sanction involves an affirmative disability
or restraint, (2) whether it has historically been regarded as a
punishment, (3) whether it comes into play only on a finding of
scienter, (4) whether its operation will promote the traditional
aims of punishment—retribution and deterrence, (5) whether
the behavior to which it applies is already a crime, (6) whether
an alternative purpose to which it may rationally be connected
is assignable for it, and (7) whether it appears excessive in
CLArk v. TYrreLL 	699
Cite as 16 Neb. App. 692

relation to the alternative purpose assigned. Id. In analyzing
whether the purpose or effect of a civil sanction statute is so
punitive as to negate the Legislature’s intent, the factors must
be considered in relation to the statute on its face and are help-
ful, but are neither exhaustive nor dispositive. Id. The Double
Jeopardy Clause protects against only multiple criminal punish-
ments or prosecutions. Id.
John was disciplined under § 81-885.24, which provides:
The commission may, upon its own motion, and shall,
upon the sworn complaint in writing of any person, inves-
tigate the actions of any broker, associate broker, sales-
person, or subdivider and may censure the licensee or cer-
tificate holder, revoke or suspend any license or certificate
issued under the Nebraska real estate License Act, or enter
into consent orders, whenever the license or certificate has
been obtained by false or fraudulent representation or the
licensee or certificate holder has been found guilty of any
of the [enumerated] unfair trade practices[.]
The NreC found John guilty of violating § 81-885.24(29), that
is, “[d]emonstrating negligence, incompetency, or unworthiness
to act as a broker, associate broker, or salesperson, whether of
the same or of a different character as otherwise specified in
this section.”
[17,18] The district court determined that double jeopardy has
no application in this case, and we agree. The Nebraska Supreme
Court has determined that the revocation or suspension of a pro-
fessional license generally does not constitute punishment for
the purposes of double jeopardy analysis. State v. Wolf, 250 Neb.
352, 549 N.W.2d 183 (1996). This court has also determined
that the State can discipline and regulate professionals, includ-
ing suspending the privilege to practice, without running afoul
of the Double Jeopardy Clause. Sedivy v. State, 5 Neb. App. 745,
567 N.W.2d 784 (1997). Specifically, in Sedivy, we stated, “The
revocation or suspension of a professional license generally
does not constitute punishment for the purposes of double jeop-
ardy analysis but, rather, serves the remedial purpose of protect-
ing the public from unfit practitioners.” 5 Neb. App. at 759, 567
N.W.2d at 793. We also observe that Nebraska and Iowa are
separate sovereigns and conclude that the discipline imposed on
700 	16 NeBrASkA APPeLLATe rePorTS

John by the real estate commissions of two separate sovereign
entities did not violate double jeopardy. See U.S. v. Vinson, 414
F.3d 924 (8th Cir. 2005) (while one sovereign may not place
individual in jeopardy twice for same acts, subsequent prosecu-
tion by separate sovereign does not violate Constitution). In this
case, John’s discipline by the NreC served the remedial pur-
pose of protecting the public from an unfit practitioner and did
not constitute punishment for the purposes of double jeopardy
analysis. The district court’s determination that double jeopardy
was not applicable conforms to the law, is supported by compe-
tent evidence, and is not arbitrary, capricious, or unreasonable.
John’s assignment of error is without merit.
Due Process.
John asserts that the district court erred by deciding that
the NreC’s consideration of John’s prior disciplinary record
before the NreC did not violate due process. At the close
of the evidentiary portion of the NreC hearing, the NreC
began its deliberations on the record. John and his counsel
were present during the course of the deliberations. First, the
NreC deliberated concerning whether John was in violation of
§ 81-885.24(29) and did find him in violation of that subsection.
Then the NreC moved into the penalty phase of the hearing.
After the result of the vote on the violation was announced,
the NreC chairperson summarized John’s prior disciplinary
history before the NreC, which showed that John had four
previous complaints filed against him between 1986 and 1997,
three of which had been dismissed. The history showed that in
1997, John consented to the imposition of a suspension to be
served entirely on probation for failing to properly maintain
records relating to any real estate transaction, failing to main-
tain a bookkeeping system which would accurately and clearly
disclose full compliance with the laws relating to trust accounts,
failing to deposit any funds received as earnest money within 48
hours or before the end of the next banking day after an offer
had been accepted, and failing to properly complete and retain
the agency acknowledgment disclosure pamphlet. In the 1997
proceeding, a 12-hour continuing education requirement was
also imposed. After the chairperson answered a few questions
CLArk v. TYrreLL 	701
Cite as 16 Neb. App. 692

from other members seeking clarification on various points in
John’s disciplinary history before the NreC, the NreC then
began discussion and voting on what sanction to impose in this
case. An initial motion on a proposed sanction did not pass, but
the NreC ultimately passed a motion to suspend John’s license
for 2 years, served on probation except for 60 days, with a con-
tinuing education requirement.
[19] John argues that by virtue of the recitation of his prior
disciplinary history at the start of the penalty phase of the
proceedings, he was somehow subjected to a penalty enhance-
ment, and that his due process rights were accordingly violated.
In proceedings before an administrative agency or tribunal,
procedural due process requires notice, identification of the
accuser, factual basis for the accusation, reasonable time and
opportunity to present evidence concerning the accusation, and
a hearing before an impartial board. Betterman v. Department
of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
There is nothing in the record to show that John’s procedural
due process rights were violated in this case. John was present
with his counsel during the disciplinary portion of the hearing,
and although the NreC discussed among its members what
sanction to impose and did not solicit input from John or his
counsel during this portion of the hearing, there is nothing in
the record to suggest that John could not have objected in some
way if he found the chairperson’s recitation of his disciplinary
history to be inaccurate. John, in fact, did not argue before
the district court, or before this court, that any portion of the
recited history was incorrect. The record does not suggest
either that John received some form of enhanced sanction. As
discussed below, the sanction imposed by the NreC was well
within the NreC’s authority.
There is no indication in the record that the district court
placed any undue emphasis on John’s prior disciplinary his-
tory in affirming the discipline imposed by the NreC, and we
note that in the criminal context, at the sentencing stage of the
proceedings, a court may consider many factors that would not
be entered into evidence at trial, including past criminal record,
which may include information about dismissed charges and
sentences imposed for past convictions. See State v. Archie, 273
702 	16 NeBrASkA APPeLLATe rePorTS

Neb. 612, 733 N.W.2d 513 (2007). The district court’s determi-
nations that John’s sanction was not enhanced and that his due
process argument was without merit conform to the law, are
supported by competent evidence, and are not arbitrary, capri-
cious, or unreasonable.
Unworthiness.
[20-22] John asserts that the district court erred by finding
that John’s conduct constituted unworthiness to act as a broker.
John urges this court to find § 81-885.24(29) to be unconstitu-
tionally vague. The Nebraska Court of Appeals cannot deter-
mine the constitutionality of a statute, yet when necessary to a
decision in the case before it, the court does have jurisdiction
to determine whether a constitutional question has been prop-
erly raised. Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572
(2005). To properly raise a challenge to the constitutionality of
a statute, a litigant is required to strictly comply with Neb. Ct.
r. of Prac. 9e (rev. 2006) and to properly raise and preserve
the issue before the trial court. See Olson, supra. Because the
district court did not pass on the constitutional issue raised by
John on appeal, he has waived it. A constitutional issue not
presented to or passed upon by the trial court is not appropriate
for consideration on appeal. State v. Moyer, 271 Neb. 776, 715
N.W.2d 565 (2006).
John argues that he did not violate § 81-885.24(29), because
his conduct did not reach the required level of negligence,
incompetency, or unworthiness. In Wright v. State ex rel. State
Real Estate Comm., 208 Neb. 467, 304 N.W.2d 39 (1981),
the Nebraska Supreme Court considered a violation of the
“unworthiness” subsection of 81-885.24 and was persuaded
and convinced by the language and reasoning in cases such
as Goodley v. N. J. Real Estate Com., 29 N.J. Super. 178, 102
A.2d 65 (1954), a case wherein the court held that “unworthi-
ness,” as used in the New Jersey statute, “signified the lack of
those ethical qualities that befit the vocation.” 208 Neb. at 472,
304 N.W.2d at 42. In addressing John’s argument in this case,
the district court stated:
John wishes to characterize his wrong doing as a simple
failure to adequately supervise David. The [NreC] saw it
CLArk v. TYrreLL 	703
Cite as 16 Neb. App. 692

differently and so do I. What John did was knowingly aid
David in violating the licensing regulations by represent-
ing himself to be the Terrys’ agent when, in fact, he was
not. John also [re]presented that he witnessed the Terrys’
signatures on the offer to purchase when, in fact, he did
not. . . . These actions evidence a blatant disregard for the
rules of his profession and clearly demonstrate unworthi-
ness to act as a broker.
In his brief on appeal, John argues that he was an “‘attesting
witness’” rather than a “‘subscribing witness,’” arguing that it
was entirely reasonable for him to rely on David’s representa-
tion that the Terrys had signed the offer to purchase. Brief for
appellant at 21. We see the more critical facts to be that John
allowed David to continue with the Terry transaction although
David was not licensed in Iowa and that John, by signing the
offer to purchase, held himself out as the Terrys’ agent, when he
was not. The district court’s determination that John’s actions
clearly demonstrated his unworthiness to act as a broker con-
forms to the law, is supported by competent evidence, and is
not arbitrary, capricious, or unreasonable.
Level of Discipline.
John asserts that the district court erred by determining that
the level of discipline imposed by the NreC was not excessive.
After determining that John was in violation of § 81-885.24(29),
the NreC suspended John’s license for 2 years, to be served
on probation, except for 60 days. John argues that a suspension
served entirely on probation with a continuing education require-
ment and/or fine would have been more appropriate and that
the sanction imposed will operate as a “‘death penalty’” for
his business. Brief for appellant at 25. The district court sim-
ply found that the sanction was not excessive. We agree. The
sanction imposed was well within the NreC’s authority. See
§ 81-885.24. The district court’s decision regarding John’s sanc-
tion conforms to the law, is supported by competent evidence,
and is not arbitrary, capricious, or unreasonable.
Stay of Execution.
[23] In its cross-appeal, the State asserts that the district court
erred by ordering a stay of execution, pending resolution of this
704 	16 NeBrASkA APPeLLATe rePorTS

appeal, of the discipline imposed against John. The district
court determined that John’s motion to stay and to set a super-
sedeas bond fell within the court’s discretionary power to grant
or deny, and the court granted the motion, set the amount of
supersedeas, and stayed its order of January 30, 2007. The trial
court may in its discretion grant supersedeas in cases not speci-
fied in Neb. rev. Stat. § 25-1916 (Cum. Supp. 2006) (general
supersedeas statute). Hall v. Hall, 176 Neb. 555, 126 N.W.2d
839 (1964). An allowance of supersedeas in such a case may be
granted in such an amount and on such conditions as the court
determines necessary for the protection of the parties. Id.
The State directs our attention to § 84-917(3) (concerning
stays of agency decisions in appeals to district court under
Administrative Procedure Act) and argues that the provisions
of this subsection should continue to apply when an agency
decision is further appealed from the district court to this court.
Section 84-917(3) provides:
The filing of the petition or the service of summons upon
such agency shall not stay enforcement of a decision.
The agency may order a stay. The court may order a stay
after notice of the application therefor to such agency
and to all parties of record. If the agency has found that
its action on an application for stay or other temporary
remedies is justified to protect against a substantial threat
to the public health, safety, or welfare, the court may not
grant relief unless the court finds that: (a) The applicant
is likely to prevail when the court finally disposes of the
matter; (b) without relief, the applicant will suffer irrep
arable injuries; (c) the grant of relief to the applicant will
not substantially harm other parties to the proceedings;
and (d) the threat to the public health, safety, or welfare
relied on by the agency is not sufficiently serious to justify
the agency’s action in the circumstances. The court may
require the party requesting such stay to give bond in such
amount and conditioned as the court may direct.
(emphasis supplied.)
The State argues that the stay entered by the district court in
this case clearly violated § 84-917(3) because the court failed to
make findings on the four criteria set forth in that subsection.
CLArk v. TYrreLL 	705
Cite as 16 Neb. App. 692

The State further argues that after having entered a final order
affirming the decision of the NreC, the district court was not
in a position to determine that John was “‘likely to prevail when
the court finally dispose[d] of the matter.’” Brief for appellees
on cross-appeal at 41. The State relies on Miller v. Horton,
253 Neb. 1009, 574 N.W.2d 112 (1998), wherein the Nebraska
Supreme Court found that a stay under § 84-917(3) was improv-
idently granted because the trial court had not made any of the
findings required under that subsection.
We need not determine whether § 84-917(3) is applicable
to further appeals of agency decisions from the district court
to this court. even if it were applicable, there is nothing in
the record in this case to suggest that the district court would
have been required to make findings on the listed criteria. The
requirement in § 84-917(3) that the court must make findings
on these criteria before granting relief is conditioned upon a
finding by the agency that “its action on an application for stay
or other temporary remedies is justified to protect against a
substantial threat to the public health, safety, or welfare.” There
is no such finding in the record before us. The court’s grant of
a stay in this case conforms to the law, is supported by compe-
tent evidence, and is not arbitrary, capricious, or unreasonable.
Accordingly, the State’s assignment of error on cross-appeal is
without merit.
CoNCLUSIoN
We affirm the decision of the district court in this case
because it conforms to the law, is supported by competent evi-
dence, and is not arbitrary, capricious, or unreasonable.
A ffirmed .
706 	16 NeBrASkA APPeLLATe rePorTS