Reinbrecht v. Walgreen Co.

of the record indicates that the sentence was not an abuse
of discretion.
V. CONCLUSION
We find that the evidence presented at trial was sufficient
to support Pillard’s conviction and that the admission of the
testimony of which Pillard complains, if it was hearsay, did not
constitute reversible error. In addition, we find that the inclusion
of Pillard’s arraignment proceedings in the bill of exceptions
provided us with sufficient language from the relevant Lincoln
municipal ordinance to make review of his sentence possible.
As such, we find that the trial court did not abuse its discre-
tion in sentencing Pillard to 90 days in jail. We therefore affirm
the order of the district court which upheld Pillard’s conviction
and sentence.
A ffirmed .
WAyne reinbrecht , on behAlf of himself And All others
similArly situAted , AppellAnt , v . WAlgreen co .,
doing business As WAlgreens , Appellee .
742 N.W.2d 243
Filed November 6, 2007. 	No. A-05-1317.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Deceptive Trade Practices: Equity. By its own terms, Neb. Rev. Stat. § 87-303(a)
(Reissue 1999) provides only for equitable relief consistent with general principles
of equity.
4. Deceptive Trade Practices: Damages. The Uniform Deceptive Trade Practices
Act, specifically Neb. Rev. Stat. § 87-303 (Reissue 1999), does not provide a
private right of action for damages.
5. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the controversy before it.
108 	16 NeBRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

Appeal from the District Court for Douglas County: sAndrA
l. dougherty, Judge. Affirmed.
Pamela A. Car, of Car & Reinbrecht, P.C., L.L.O., for
appellant.
Mark C. Laughlin and Paul M. Shotkoski, of Fraser, Stryker,
Meusey, Olson, Boyer & Bloch, P.C., for appellee.
sievers , cArlson, and cAssel, Judges.
cArlson, Judge.
INTRODUCTION
Wayne Reinbrecht filed a class action against Walgreen Co.,
doing business as Walgreens (Walgreens), in the district court
for Douglas County. Reinbrecht brought the action on behalf
of himself and others similarly situated, alleging violations of
Nebraska’s Uniform Deceptive Trade Practices Act (UDTPA),
Neb. Rev. Stat. § 87-301 et seq. (Reissue 1999 & Cum. Supp.
2006), and Nebraska’s Consumer Protection Act (CPA), Neb.
Rev. Stat. § 59-1601 et seq. (Reissue 2004), in connection
with Walgreens’ sale of 37-cent U.S. postage stamps to its cus-
tomers. The trial court granted summary judgment in favor of
Walgreens on both claims and dismissed Reinbrecht’s amended
complaint. For the reasons stated below, we affirm.
BACkGROUND
Walgreens is a corporation that operates drug stores in
Nebraska. Walgreens sells U.S. postage stamps in its stores for
the convenience of its customers. It sells the stamps in pack-
ages of 4, 10, and 20. Walgreens purchases the stamps from a
distributor; the distributor purchases the stamps from the U.S.
Postal Service, repackages them, and sells the finished product
to Walgreens. Walgreens has no relationship or affiliation with
the U.S. Postal Service. Walgreens sells the stamps for a price
that is more than the amount a customer would pay for the same
stamps at a U.S. Post Office facility.
On January 14, 2005, Reinbrecht went to a Walgreens store
located in Omaha, Nebraska, and purchased a pack of 10 self-
adhesive 37-cent postage stamps, along with other items. The
ReINBReChT v. WALGReeN CO. 	109
Cite as 16 Neb. App. 108

price of $4.99 and the Walgreens’ company logo were printed
on the package of stamps Reinbrecht purchased, as well as the
description “10 Self-Adhesive Stamps.” Reinbrecht paid $4.99
for the package of 10 stamps and received a receipt for his pur-
chase which reflected the $4.99 price for the stamps. The $4.99
price charged by Walgreens for the 10 stamps was $1.29 more
than the cumulative face value of the 37-cent stamps.
Reinbrecht claims that on the date he purchased the stamps,
the stamp packs were not located in a regular shopping aisle,
but, rather, were kept at the checkout counter at a place almost
out of reach to customers. he claims that he asked the store clerk
for a package of 10 postage stamps and that the clerk “rang it
up” and put the stamps in a bag with the other items Reinbrecht
purchased. Reinbrecht claims he did not have the opportunity to
look at the stamp pack or the amount charged prior to leaving
the Walgreens store. he further claims that while in the store,
he did not see any prices on either the stamp products or the
stamp display.
Walgreens presented evidence to show that its stores follow
corporate “planograms,” which provide the layout for display-
ing various products available at Walgreens stores, including
postage stamps. For the time period including January 14,
2005, the corporate planogram provided that postage stamps be
displayed at the checkout counter in a clear plastic display box
with four sections. each section was labeled with a sticker stat-
ing the price and quantity of the corresponding stamp product.
The Walgreens store where Reinbrecht purchased the stamps
complied with the planogram, including the display of stamp
products. however, the actual stamp products were removed
from the display box and replaced with “dummy cards.” The
dummy cards were an accepted Walgreens practice at locations
where theft was a concern. The dummy cards advised customers
that the stamp products were available at the front register. The
dummy cards located in the individual sections of the display
box identified the price and quantity of the stamp products.
When stamps are purchased, the cash register display shows
the price of each stamp package as it is scanned by the clerk,
and a receipt is given to the customer showing the price of each
stamp package.
110 	16 NeBRASkA APPeLLATe RePORTS

On the date Reinbrecht purchased the stamps in question,
there were signs in the Walgreens store at issue that stated, “US
Postage Stamps Available here.” The signs were displayed on
the front door of the Walgreens store, in the “hallmark” aisle,
and near the front register. The signs did not indicate that the
stamps were sold at a higher price than their face value.
On March 14, 2005, Reinbrecht filed an amended complaint
on behalf of himself and all others similarly situated against
Walgreens, alleging that it had violated the UDTPA and the
CPA in connection with its practice of selling postage stamps
at a higher price than the face value of the 37-cent stamps.
Specifically, Reinbrecht alleged that Walgreens’ practice causes
confusion and is deceiving, because the stamps it sells are iden-
tical in appearance to those sold by the U.S. Postal Service, the
packaging is substantially similar to the U.S. Postal Service
packaging, and Walgreens provides no notice to its customers
of the increased charge. Reinbrecht alleged that this was a class
action and sought certification of a class.
On April 11, 2005, Walgreens filed a motion to dismiss
Reinbrecht’s amended complaint. The motion to dismiss was
converted to a motion for summary judgment after Reinbrecht
submitted an affidavit in opposition to the motion to dismiss
and it was received by the court. Both parties were given a
reasonable opportunity to present additional material in regard
to the motion for summary judgment. Following a hearing
on Walgreens’ motion for summary judgment, the trial court
granted the motion as to both the UDTPA and CPA claims.
This case has not been certified as a class action. By agree-
ment of the parties, Reinbrecht’s motion for class certification
was continued pending the outcome of the summary judg-
ment motion.
ASSIGNMeNTS OF eRROR
In regard to the UDTPA claim, Reinbrecht assigns that the
trial court erred in (1) finding that he may not recover damages
under the UDTPA, (2) finding that he must show that he is likely
to be damaged by Walgreens’ deceptive acts in the future, (3)
finding that Walgreens’ practices did not cause a “‘likelihood
of confusion,’” (4) finding that Walgreens’ practices were not
ReINBReChT v. WALGReeN CO. 	111
Cite as 16 Neb. App. 108

deceptive as a matter of law, (5) finding that Walgreens does not
fall under the scope of the U.S. Postal Service regulations, and
(6) granting Walgreens’ motion for summary judgment.
In regard to the CPA claim, Reinbrecht assigns that the trial
court erred in (1) finding that he must prove that Walgreens’
actions are both “‘unfair’” and “‘deceptive,’” (2) using the
wrong definitions of “‘unfair’” and “‘deceptive,’” and (3) grant-
ing Walgreens’ motion for summary judgment.
STANDARD OF ReVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Alston v. Hormel Foods Corp.,
273 Neb. 422, 730 N.W.2d 376 (2007); City of Lincoln v.
Hershberger, 272 Neb. 839, 725 N.W.2d 787 (2007). In review-
ing a summary judgment, an appellate court views the evidence
in a light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all reason-
able inferences deducible from the evidence. Id.
ANALYSIS
UDTPA.
We first address Reinbrecht’s assignments of error that relate
to his UDTPA claim. Section 87-302 of the UDTPA provides
in pertinent part:
(a) A person engages in a deceptive trade practice
when, in the course of his or her business, vocation, or
occupation, he or she:
(1) Passes off goods or services as those of another;
(2) Causes likelihood of confusion or of misunderstand-
ing as to the source, sponsorship, approval, or certification
of goods or services;
(3) Causes likelihood of confusion or of misunderstand-
ing as to affiliation, connection, or association with, or
certification by, another;
(4) Uses deceptive representations or designations of
geographic origin in connection with goods or services;
112 	16 NeBRASkA APPeLLATe RePORTS

(5) Represents that goods or services have sponsor-
ship, approval, characteristics, ingredients, uses, benefits,
or quantities that they do not have or that a person has
a sponsorship, approval, status, affiliation, or connection
that he or she does not have.
The UDTPA also provides that “[a] person likely to be dam-
aged by a deceptive trade practice of another may be granted an
injunction against it under the principles of equity and on terms
that the court considers reasonable. . . .” § 87-303(a).
Reinbrecht first assigns that the trial court erred in finding
that he may not recover damages under the UDTPA. The trial
court found that the UDTPA provides only for equitable relief
and that therefore, Reinbrecht cannot recover monetary dam-
ages under the UDTPA, but, rather, only injunctive relief.
[3,4] By its own terms, § 87-303(a) provides only for equi-
table relief consistent with general principles of equity. Sid
Dillon Chevrolet v. Sullivan, 251 Neb. 722, 559 N.W.2d 740
(1997). The UDTPA, specifically § 87-303, does not provide
a private right of action for damages. Triple 7, Inc. v. Intervet,
Inc., 338 F. Supp. 2d 1082 (D. Neb. 2004). In Triple 7, Inc., the
court dismissed the plaintiff’s UDTPA claim because the plain-
tiff did not seek injunctive relief. Accordingly, the trial court in
the instant case did not err in finding that Reinbrecht may not
recover damages under the UDTPA. Reinbrecht’s assignment of
error in this regard is without merit.
Reinbrecht next assigns the trial court erred in finding that
he must show he is likely to be damaged by Walgreens’ decep-
tive acts in the future and that he failed to do so. The trial court
found that summary judgment was appropriate on Reinbrecht’s
UDTPA claim, because he had not alleged or proved the like-
lihood of future harm sufficient to assert a viable claim for
injunctive relief. We agree.
As previously stated, the UDTPA provides that “[a] person
likely to be damaged by a deceptive trade practice of another”
can seek an injunction prohibiting such practices. § 87-303(a).
Because the UDTPA provides injunctive relief for “a person
likely to be damaged,” it provides relief from future damage,
not past damage. Reinbrecht must present evidence sufficient
to support an inference of future harm to him. Reinbrecht now
ReINBReChT v. WALGReeN CO. 	113
Cite as 16 Neb. App. 108

knows the truth regarding the price of the postage stamps sold
by Walgreens. Therefore, any deception or damage to Reinbrecht
occurred in the past and Reinbrecht cannot suffer future damages
as a result of Walgreens’ alleged deceptive practices in regard to
its sale of postage stamps. Reinbrecht has not presented any
evidence or even alleged that he is “likely to be damaged” by
Walgreens’ practice in the future. Thus, the evidence does not
indicate a likelihood of future harm.
Damage allegedly caused by Reinbrecht’s purchase of post-
age stamps in January 2005 cannot be remedied through an
injunction. To survive summary judgment, Reinbrecht had to
raise a factual question about the likelihood of some future
wrong to him. Because he failed to do so, the trial court prop-
erly granted Walgreens’ motion for summary judgment on the
UDTPA claim.
[5] having determined that the trial court properly granted
summary judgment on the ground that Reinbrecht did not
show the likelihood of some future wrong to him, we need not
address Reinbrecht’s other assignments of error that relate to the
UDTPA claim. An appellate court is not obligated to engage in
an analysis which is not needed to adjudicate the controversy
before it. Castillo v. Young, 272 Neb. 240, 720 N.W.2d 40
(2006); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725
N.W.2d 562 (2006).
CPA.
In regard to Reinbrecht’s CPA claim, he first assigns that the
trial court erred in finding that he must prove that Walgreens’
actions are both “unfair” and “deceptive.” Section 59-1602 of
the CPA provides, “Unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or com-
merce shall be unlawful.”
Reinbrecht’s argument is based on a portion of the trial
court’s order which states that under the CPA, “a Plaintiff must
also prove that a practice is ‘deceptive.’” (emphasis supplied.)
The quoted language is followed by a definition of “decep-
tive” and is preceded by a definition of “unfair.” The quoted
language on its own implies that the court mistakenly found
that Reinbrecht must prove that Walgreens’ actions are both
114 	16 NeBRASkA APPeLLATe RePORTS

unfair and deceptive. however, when the court’s order is read
in its entirety, it is clear that the trial court did not apply such a
requirement. The trial court quoted the language in § 59-1602,
as set forth above, in its order. It further stated that the prin-
cipal thrust of the CPA “is to prevent unfair or deceptive acts
or practices in trade or commerce.” Further, the trial court
specifically held that “the manner in which Walgreens sold
U.S. postage stamps to [Reinbrecht] is not unfair or decep-
tive.” It is clear that the trial court knew the CPA requires a
plaintiff to prove an act is either unfair or deceptive, and not
both, and that the trial court applied the proper test in analyzing
Reinbrecht’s claim under the CPA. Thus, Reinbrecht’s assign-
ment that the trial court erred in finding that Reinbrecht must
prove that Walgreens’ actions are both unfair and deceptive is
without merit.
Reinbrecht next assigns that the trial court erred by using the
wrong definitions of “unfair” and “deceptive” in analyzing his
CPA claim. The trial court relied on definitions found in Raad
v. Wal-Mart Stores, Inc., 13 F. Supp. 2d 1003 (D. Neb. 1998).
After noting that the terms “unfair” and “deceptive” are not
defined in the CPA and that no Nebraska case law defines the
terms as used in the CPA, the Raad court stated that an unfair
trade practice is one that is immoral, unethical, oppressive, or
unscrupulous. It defined a deceptive practice as one which pos-
sesses the tendency or capacity to mislead, or creates the likeli-
hood of deception, and that fraud, misrepresentation, and similar
conduct are examples of what is prohibited.
Reinbrecht contends that the trial court should not have
relied on the definitions in Raad v. Wal-Mart Stores, Inc.,
supra, because that case, unlike the present case, was a dispute
between two merchants. Reinbrecht contends that the Raad
court indicated that the definitions of “unfair” and “deceptive”
may be more expansive when the dispute is between a retail
consumer and a merchant. Thus, Reinbrecht argues that by rely-
ing on the definitions set forth in Raad, the trial court failed to
apply the appropriate definitions of these terms.
Although Reinbrecht claims that the trial court used the
wrong definitions of “unfair” and “deceptive,” he fails to cite
any authority suggesting alternate definitions; nor does he offer
ReINBReChT v. WALGReeN CO. 	115
Cite as 16 Neb. App. 108

any alternative definitions whatsoever. We cannot conclude that
the definitions of “unfair” and “deceptive” used by the court
were faulty or that there were more appropriate definitions that
it could have applied. We find no merit to Reinbrecht’s assign-
ment of error in regard to the court’s definitions of “unfair”
and “deceptive.”
Finally, Reinbrecht assigns that the trial court erred in grant-
ing Walgreens’ motion for summary judgment in regard to the
CPA claim. The trial court found that Walgreens’ method of sell-
ing postage stamps to Reinbrecht was not unfair or deceptive.
The evidence is uncontroverted that Walgreens advised its
customers that U.S. postage stamps were available for sale
and that it sold authentic U.S. postage stamps. The price was
shown on the packages, the price stickers on the stamp display,
the cash register display, and the receipt given to the customer.
Thus, Walgreens provided information about the price before
and at the time of sale such that any customer could discern the
amount of the markup.
Reinbrecht claims that while in the Walgreens store, he did
not see any prices on the stamp products or stamp display.
however, the package of stamps Reinbrecht purchased clearly
stated a price of $4.99 and stated that it contained 10 stamps.
Further, Reinbrecht does not contest that the cash register dis-
play showed the price for the stamps when the clerk scanned
the package. In addition, the receipt given to Reinbrecht stated
a price of $4.99.
Viewing 	all 	the 	evidence 	in 	a 	light 	most 	favorable 	to
Reinbrecht, there is no genuine issue of material fact regarding
how Walgreens sold U.S. postage stamps. Based on the uncon-
troverted evidence, we agree with the trial court that Walgreens’
method and manner of selling U.S. postage stamps on January
14, 2005, was neither unfair nor deceptive. Walgreens was enti-
tled to judgment as a matter of law on Reinbrecht’s CPA claim.
Reinbrecht’s final assignment of error is without merit.
CONCLUSION
We conclude that the trial court did not err in granting sum-
mary judgment in favor of Walgreens on Reinbrecht’s UDTPA
and CPA claims and in dismissing his amended complaint
116 	16 NeBRASkA APPeLLATe RePORTS

with prejudice. Accordingly, the judgment of the trial court
is affirmed.
A ffirmed .
shAron K. cAin , Appellee , v . donAld l. cAin , AppellAnt .
741 N.W.2d 448
Filed November 6, 2007. 	No. A-06-747.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
When reviewing questions of law, an appellate court resolves the questions inde-
pendently of the conclusions reached by the trial court.
2. Modification of Decree: Child Support. Neb. Rev. Stat. § 42-371.01 (Reissue
2004) permits the district court, under specified circumstances, to enter a sum-
mary order of termination of child support in the absence of an objection by
the obligee.
3. ____: ____. The filing of a deficient application under Neb. Rev. Stat. § 42-371.01
(Reissue 2004) will not trigger a duty on the part of the obligee to file a corre-
sponding objection.
Appeal from the District Court for Douglas County: J ohn d.
hArtigAn , J r ., Judge. Affirmed.
Larry R. Demerath, of Demerath Law Offices, for appellant.
Michael B. Lustgarten, of Lustgarten & Roberts, P.C., L.L.O.,
for appellee.
cArlson , moore, and cAssel, Judges.
moore, Judge.
INTRODUCTION
Donald L. Cain appeals from the order of the district court
for Douglas County dismissing his application for termination
of child support. For the reasons set forth below, we affirm the
district court’s order. Pursuant to this court’s authority under
Neb. Ct. R. of Prac. 11B(1) (rev. 2006), this case was ordered
submitted without oral argument.
STATeMeNT OF FACTS
Donald and Sharon k. Cain were married in 1973 and
divorced in 1994. Three children were born to their marriage.
CAIN v. CAIN 	117
Cite as 16 Neb. App. 117