D B Feedyards v. Environmental Sciences

d b feedyARds , inC., A nebRAskA CoRpoRAtion , Appellee , v .
enviRonmentAl sCienCes , inC., A nebRAskA CoRpoRAtion ,
And kendAll bonenbeRgeR, AppellAnts .
745 N.W.2d 593
Filed March 4, 2008. 	No. A-06-471.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of the issue is a matter of law,
which requires an appellate court to reach a conclusion independent from that of
the trial court.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is 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.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the 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.
4. Judgments: Moot Question: Appeal and Error. When a party voluntarily com-
plies with the mandate of the trial court, satisfying the judgment, the appeal no
longer presents an actual controversy, but an abstract question.
5. Judgments: Appeal and Error. Payment of a judgment does not destroy the right
to appeal when the record shows that the payment was coerced by legal process
during the pendency of the appeal.
6. Judgments: Affidavits: Appeal and Error. The burden falls to the appellant to
demonstrate, by affidavit, that the appellant’s satisfaction of the judgment was not
voluntary, but was instead the result of coercion by legal process.
7. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, a plaintiff must establish the defendant’s duty to protect the plaintiff from
injury, a failure to discharge that duty, and damages proximately caused by the
failure to discharge that duty.
8. Negligence. Whether a legal duty in negligence exists is a question of law.
9. ____. In negligence cases, the duty is always the same, to conform to the legal
standard of reasonable conduct in light of the apparent risk.
10. Negligence: Appeal and Error. In determining whether a duty exists, an appel-
late court employs a risk-utility test, considering (1) the magnitude of the risk,
(2) the relationship of the parties, (3) the nature of the attendant risk, (4) the
opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6)
the policy interest in the proposed solution.
11. Negligence. Once a court determines that a duty is owed by one party to
another, it becomes necessary to define the scope and extent of the duty. In
other words, the necessary complement of duty—the standard of care—must
be ascertained.
516 	16 NeBRASkA APPellATe RePORTS
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www.nebraska.gov/apps-courts-epub/
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12. ____. Determining the standard of care to be applied in a particular case is a ques-
tion of law.
13. Negligence: Evidence: Tort-feasors. The ultimate determination of whether a
party deviated from the standard of care and was therefore negligent is a question
of fact. To resolve the issue, a finder of fact must determine what conduct the
standard of care would require under the particular circumstances presented by
the evidence and whether the conduct of the alleged tort-feasor conformed with
the standard.
14. Summary Judgment: Proof. A party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
15. ____: ____. Once the moving party makes a prima facie case, the burden to
produce evidence showing the existence of a material issue of fact that prevents
judgment as a matter of law shifts to the party opposing the motion.
16. Negligence: Damages: Proof. The burden of tying the negligence to the damage
claimed remains on the claimant even when the other party is guilty of negligence
as a matter of law.
17. Proximate Cause: Words and Phrases. A proximate cause is a cause that (1)
produces a result in a natural and continuous sequence and (2) without which the
result would not have occurred.
18. ____: ____. A defendant’s conduct is a proximate cause of an event if the event
would not have occurred but for that conduct, but it is not a proximate cause if
the event would have occurred without that conduct.
19. Proximate Cause. A proximate cause need not be the sole cause; it need only be
“a” proximate cause.
20. Proximate Cause: Evidence. The question of proximate cause, in the face of
conflicting evidence, is ordinarily one for the trier of fact, and the court’s deter-
mination will not be set aside unless clearly wrong.
21. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.
Appeal 	from 	the 	District 	Court 	for 	Burt 	County:
dARvid d. Q uist, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
William H. Selde, of Sodoro, Daly & Sodoro, P.C., for
appellants.
Jaron J. Bromm and Curtis A. Bromm, of edstrom, Bromm,
lindahl & Freeman-Caddy, and, on brief, Donald G. Blankenau
and Thomas R. Wilmoth, of Blackwell, Sanders, Peper &
Martin, l.l.P., for appellee.
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	517
Cite as 16 Neb. App. 516

iRwin , sieveRs, and mooRe, Judges.
mooRe, Judge.
INTRODUCTION
D B Feedyards, Inc., filed a complaint setting forth claims
for breach of contract, negligence, and breach of warranties
in the district court for Burt County against environmental
Sciences, Inc. (eSI), and kendall Bonenberger, the president of
eSI. The district court entered summary judgment in favor of
D B Feedyards on its negligence claim. eSI and Bonenberger
(hereinafter collectively the Appellants) appeal. For the reasons
set forth herein, we affirm the grant of summary judgment on
the issue of negligence, but we reverse, and remand for further
proceedings on the issue of causation.
BACkGROUND
Dispute.
D B Feedyards operates a cattle feedlot in Nebraska that
feeds, on average, over 4,000 head of cattle. D B Feedyards
received a letter from Nebraska’s Department of environmental
Quality (DeQ) in May 2002, notifying it that a livestock waste
control facility was required for its cattle operations. The DeQ
required the facility permit application to be filed by December
1, 2002. On July 16, D B Feedyards retained eSI to perform
various environmental consulting services and to prepare and
submit to the DeQ, on behalf of D B Feedyards, the applica-
tion for a permit to construct and operate a licensed waste
control facility.
eSI missed multiple deadlines established by the DeQ for
submission of the facility permit application. Although eSI
submitted an application on March 27 or 28, 2003, the appli-
cation was found incomplete by the DeQ and was returned to
eSI. The DeQ required the complete application to be filed no
later than October 21. eSI, however, failed to do so without
explanation to the DeQ or to D B Feedyards. On December 23,
eSI assured D B Feedyards that a complete application would
be filed by mid-January 2004. eSI failed to do so and, in fact,
never submitted a complete facility application to the DeQ for
D B Feedyards.
518 	16 NeBRASkA APPellATe RePORTS

On December 27, 2004, the U.S. environmental Protection
Agency (ePA) issued to D B Feedyards a compliance order and
notice of violations of the federal Clean Water Act. The ePA
threatened a fine of $157,500 for alleged violations commenc-
ing on April 24, 2003, the date the DeQ notified eSI that the
facility permit application was incomplete. The ePA indicated
that the failure to submit a timely permit application to the
DeQ precipitated the penalty action. D B Feedyards settled the
penalty action with the ePA on August 29, 2005, for $135,000.
D B Feedyards incurred $15,799.50 in fees defending the ePA
action. Following the ePA action, D B Feedyards terminated its
relationship with eSI and hired another consultant to prepare
and file the facility application. After paying $24,681.53 to
eSI, D B Feedyards had to pay the new consultant $51,300 to
perform the work eSI failed to do. D B Feedyards also paid a
$1,500 application fee for the incomplete application submitted
by eSI.
Procedural Background.
D B Feedyards filed a complaint in the district court against
the Appellants on June 24, 2005. D B Feedyards set forth
claims for breach of contract, negligence, and breach of war-
ranties, and alleged damages of $207,300.
The Appellants answered on August 16, 2005. We do not set
forth the details of the answer except to note eSI affirmatively
alleged that it exercised a reasonable degree of knowledge and
skill, the same as ordinarily possessed by others engaged in
the business or trade, and that any claim of damage was the
product of the actions of others not subject to the direct control
of eSI.
On October 21, 2005, D B Feedyards filed a motion for sum-
mary judgment, which was heard by the court on December
5. At the hearing, the court received into evidence an affida-
vit of Rodney Bromm, the president and general manager of
D B Feedyards; an affidavit of Dennis Grams, an environmental
engineer and consultant; various documents from the DeQ file
on D B Feedyards; and an affidavit of Bonenberger.
In Bromm’s affidavit, he recited details of D B Feedyards’
relationship with eSI and the action initiated by the ePA.
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	519
Cite as 16 Neb. App. 516

Bromm stated that in response to the May 2002 letter of
the DeQ, he contacted eSI to perform various environmental
consulting services. Bromm informed eSI of the DeQ letter,
provided it with a copy, and inquired as to whether eSI had
the requisite knowledge and abilities to perform the services
required. Bromm stated that Bonenberger assured Bromm that
he had significant experience in and specialized knowledge for
preparing and submitting the necessary permit applications to
comply with the DeQ letter.
Bromm stated that in hiring eSI to perform consulting ser-
vices, eSI acknowledged to him that it was aware of the dead-
line given by the DeQ for submission of the permit application
and gave no indication that it could not meet the deadline.
Bromm contacted eSI several times in 2004 to inquire about
the status of the permit application and was always assured that
deadlines would be met. Bonenberger informed Bromm that eSI
was waiting for Nebraska’s Department of Natural Resources
(DNR) to approve a dam safety permit application. In June
2004, D B Feedyards contacted the DNR and was informed
that no such application had been submitted to the DNR on
behalf of D B Feedyards. eSI then assured D B Feedyards that
the dam safety permit application must have been lost or mis-
placed and that it would be filed immediately. eSI, however,
never filed the application with the DNR.
Bromm stated that with respect to the action by the ePA, the
ePA made clear, both in negotiations and in a consent agree-
ment and final order filed August 29, 2005, that its decision
to pursue an enforcement action against D B Feedyards was
precipitated by the failure to file a timely waste control facility
permit application with the DeQ.
Grams is a licensed professional engineer with over 30
years of experience in environmental engineering and consult-
ing. Grams has been involved in the processing of hundreds of
environmental permits from the DeQ and the ePA. Grams is
the former regional administrator for the ePA region includ-
ing Nebraska, Iowa, Missouri, and kansas. Prior to occupying
that position, Grams served as the director for the predecessor
agency to the DeQ. In his affidavit, Grams explained that it
is common for feedlot operators to rely on the expertise of
520 	16 NeBRASkA APPellATe RePORTS

environmental consultants when attempting to comply with
state and federal environmental permitting requirements. Grams
stated that a reasonable and prudent consultant understands
that it is responsible for communicating with state and federal
agencies during the environmental permitting process. Grams
stated that a reasonable and prudent environmental consultant
understands that the failure to comply with DeQ guidelines
can result in significant civil, administrative, or even criminal
penalties and does not consistently ignore deadlines imposed
by state and federal environmental agencies. Grams opined that
eSI’s conduct in assisting D B Feedyards to file the permit
application was simply unacceptable in the industry. Grams
opined further that eSI failed in every respect to be reasonable
or prudent by failing to communicate in a timely and truthful
manner with the DeQ on behalf of D B Feedyards, failing to
follow through on its promises to the DeQ, diminishing the
DeQ’s confidence in D B Feedyards’ willingness to comply,
failing to comply with the basic regulations to ensure that the
application eSI filed was complete, and failing to file a com-
plete application in a timely manner.
Grams also expressed, based on his experience working for
the ePA and the predecessor to the DeQ, his belief that the
ePA generally uses enforcement actions as a last resort to bring
about compliance and that one of the most significant factors
in determining whether an enforcement action is necessary is
evidence of good faith efforts to timely meet agency demands,
or lack thereof. Grams stated that when numerous deadlines
are missed and communication with the agencies is sparse or
nonexistent, as in this case, the agencies will turn to their last
resort and file a civil penalty action to force compliance. Grams
opined that the administrative penalty action in this case would
not have been commenced if eSI would have filed an applica-
tion with the DeQ in a timely manner.
In Bonenberger’s affidavit, he stated that his understanding,
after reviewing DeQ records, was that D B Feedyards was an
entity with a long history of noncompliance with DeQ require-
ments dating back to 1989. Bonenberger alleged that all fines,
sanctions, and/or penalties suffered by D B Feedyards were
not the product of any actions, inactions, or activities of eSI
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	521
Cite as 16 Neb. App. 516

and/or Bonenberger, but were a product of D B Feedyards’
continued violations and noncompliance dating back to 1990.
Bonenberger alleged, based upon his education, training, and
experience, that if D B Feedyards had complied with a DeQ
request from 1993, no damages, fines, and/or sanctions would
have been imposed against D B Feedyards and eSI’s services
would not have been required.
Bonenberger stated that eSI became aware in December 2002
or January 2003 that due to the size of the proposed holding
pond at D B Feedyards, an additional application was neces-
sary for submission to the DNR. Bonenberger expressed his
understanding that the livestock waste control facility applica-
tion would be submitted to the DeQ and the DNR at the same
time and that a consulting engineering firm, the Flatwater
Group, Inc., was retained for D B Feedyards’ engineering
needs. Bonenberger stated that in March 2004, he met with “the
consulting engineer” retained by eSI for the project on behalf
of D B Feedyards and was informed that the engineer would
promptly submit the revised application to the DeQ and the
DNR to obtain a construction permit. Bonenberger stated that in
approximately September 2004, the services of eSI were with-
drawn and formally terminated, on the advice of Bromm that
D B Feedyards was still afforded time to submit an appropriate
application for a construction permit to the DeQ.
Bonenberger 	alleged 	that 	all 	alleged 	damages 	suffered
by D B Feedyards were not a product of any negligence on
the part of eSI but were the proximate result of the acts and
actions of D B Feedyards, its consultants, its engineers, and/or
others prior to July 2002. Bonenberger stated that the ePA
investigation found violations and sanctions which were totally
unrelated to the services and/or contractual obligations of eSI to
D B Feedyards and that half of all the recommendations made
by the ePA were exclusive of services contemplated and/or
included in the contractual and/or consulting agreement between
eSI and D B Feedyards.
Bonenberger opined, based upon his education, training, and
experience as an environmental consultant, that the sole and
proximate cause of any damages suffered by D B Feedyards
was the result of the negligence of D B Feedyards, prior to
522 	16 NeBRASkA APPellATe RePORTS

any association with eSI, and/or the result of the negligence
of D B Feedyards’ consultants and others subsequent to the
termination of the contractual relationship between the parties.
Bonenberger alleged that it was not the duty or obligation of
eSI to obtain the DNR storage permit in March or April 2003,
because this application and permit required the stamp of a
registered professional engineer, “the aforementioned Flatwater
Group,” which entity eSI could neither compel nor control in
performing its function as a professional engineer. Bonenberger
further alleged that the sole and proximate cause of any damages
suffered by D B Feedyards was the negligence of the Flatwater
Group in failing to timely compile and complete its engineering
duties. Bonenberger opined that none of the ultimate sanctions
rendered against D B Feedyards as a result of a May 2004 ePA
inspection would have accrued but for D B Feedyards’ contin-
ued and protracted failure to comply with the requirements of
the Clean Water Act (hereinafter CWA), 33 U.S.C. § 1251 et
seq. (2000), and/or title 130 of the rules and regulations of the
DeQ. Finally, Bonenberger opined that the fine in the amount
of $135,000 does not reflect fines or sanctions limited to the
scope or term of employment or consulting services by or
between the parties.
Documents from the ePA are attached to various affidavits in
the record, including the inspection report of May 6, 2004; the
compliance order and notice of violations filed December 27,
2004; and the consent agreement and final order filed August
29, 2005. A brief recitation of the statutory and regulatory pro-
visions involved in this case, as gleaned from these documents,
is helpful to understand this case. Section 1311(a) of the CWA
prohibits the discharge of pollutants except in compliance with,
inter alia, § 1342 of the CWA. Section 1342 provides that pol-
lutants may be discharged only in accordance with the terms
of a “National Pollutant Discharge elimination System” permit
issued pursuant to that section. “Pollutant” includes biologi-
cal materials and agricultural waste discharged to water. The
regulations promulgated to implement § 1342 define “animal
feeding operations” that are covered by the CWA. The number
of cattle confined and fed at D B Feedyards brings it under
the CWA.
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	523
Cite as 16 Neb. App. 516

The foregoing documents also state that D B Feedyards did
not have adequate livestock waste controls, nor did it have a
National Pollutant Discharge elimination System permit. The
only waste controls in place consisted of settling basins that
discharge into a tributary of Bell Creek, which does come under
the definition of “waters” governed by the CWA. A previous
compliance order was issued by the DeQ in 1990, requiring
D B Feedyards to submit a permit application for construction
of wastewater controls. A permit application submitted in 1991
was incomplete, as were two subsequent applications. A con-
struction permit submitted and issued in 1992 was revoked in
1994. The next permit application was March 28, 2003, the one
submitted by eSI on behalf of D B Feedyards. The May 2004
inspection noted other areas of concern beyond the construc-
tion of livestock waste controls, including the need to maintain
records of all precipitation events, to develop a plan relating to
the storage of diesel fuel and gasoline tanks, and to develop and
implement best management practices.
The ePA compliance order and notice of violations states,
in part:
The ongoing flow of wastewater from [D B Feedyards]
to Bell Creek and its unnamed tributary constitutes an
unauthorized discharge of pollutants from a point source
to waters of the United States. This, and [D B Feedyards’]
failure to obtain a permit from [the] DeQ are violations of
Sections [1311] and [1342] of the CWA.
(emphasis supplied.)
The ePA consent agreement and final order states, in part:
Although [D B Feedyards] has submitted numerous appli-
cations to construct livestock waste controls, it has thus
far failed to submit a proper or complete application as
directed by [the] DeQ. Most recently, [D B Feedyards’]
consultant submitted a permit application on March 28,
2003. [D B Feedyards] and [the] consultant were notified
by [the] DeQ that the March 28, 2003 application was
incomplete on April 24, 2003. No new or corrected permit
application has been submitted since that date. This fail-
ure was one of the factors that precipitated this action.
(emphasis supplied.)
524 	16 NeBRASkA APPellATe RePORTS

The district court entered an order on March 23, 2006, grant-
ing summary judgment in D B Feedyards’ favor on its claim for
negligence, and awarding damages of $229,561. We have set
forth those portions of the district court’s analysis necessary to
our resolution of this appeal in the analysis section below.
Postjudgment Proceedings.
The Appellants filed their notice of appeal on April 21,
2006. Also on that date, the parties entered into a stipulation
that the district court could enter an order extending the time
for the Appellants to submit a supersedeas bond from April
21 to May 22, that the amount of the supersedeas bond should
be $278,000, and that the supersedeas bond “[could] be pro-
vided by any insurer authorized to do business in the State
of Nebraska.” The district court entered an order on April 26,
approving the stipulation and extending the filing deadline for
the supersedeas bond from April 21 until May 22.
On May 22 or 23, 2006, the Appellants’ counsel, who was out
of town, was advised by the district court that in lieu of a super-
sedeas bond, the Appellants’ insurance carrier had tendered a
check in the amount of $278,000. On May 23, the Appellants’
counsel requested counsel for D B Feedyards to agree to sub-
stitution of a cash deposit in lieu of a supersedeas bond, which
request was denied by D B Feedyards’ counsel on May 25. The
Appellants gave notice on May 25 of filing a supersedeas cash
deposit in lieu of a bond. The Appellants’ counsel also con-
tacted the court and was informed that the district judge was
not available for a hearing on May 25 and would be unavailable
for hearings until June, due to the Memorial Day holiday.
On May 31, 2006, D B Feedyards filed a motion seek-
ing to declare the supersedeas bond untimely. On June 2,
the Appellants filed a motion and order for supersedeas cash
deposit in lieu of a bond. The district court heard oral argument
on these motions on June 19 and, on July 20, entered an order
finding that the Appellants had failed to supersede the judgment
entered on March 23, as required by Neb. Rev. Stat. § 25-1916
(Cum. Supp. 2006).
The court entered an order on October 10, 2006, deny-
ing the Appellants’ motion for reconsideration of its July 20
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	525
Cite as 16 Neb. App. 516

order. Also on October 10, the court entered an order grant-
ing D B Feedyards’ application for disbursement of funds and
disbursing funds totaling $236,845.25 to D B Feedyards, which
amount represented the amount of judgment, plus interest and
costs. The court ordered that the balance of the $278,000 check
of May 22 was to be disbursed to eSI and its attorney.
D B Feedyards moved for summary dismissal of the appeal,
asserting that the appeal is moot because the Appellants had
voluntarily satisfied the judgment against them. We overruled
the motion, but reserved the issue of mootness for disposition
upon submission of the appeal.
ASSIGNMeNT OF eRROR
The Appellants assert, consolidated and restated, that the
district court erred in granting summary judgment in favor of
D B Feedyards.
STANDARD OF RevIeW
[1] When a jurisdictional question does not involve a factual
dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent
from that of the trial court. Susan L. v. Steven L., 273 Neb. 24,
729 N.W.2d 35 (2007).
[2,3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law. Johnson v.
Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007).
In reviewing a summary judgment, an appellate court views the
evidence in the 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. Id.
ANAlySIS
Mootness.
[4] The law is clear that “‘[w]hen an ordinary law action is
pending in this court on appeal, and the parties by agreement
settle and dispose of the whole controversy, it becomes, so far
as this court is concerned, a moot case, and will not be further
526 	16 NeBRASkA APPellATe RePORTS

investigated, but will be dismissed.’” Hormandl v. Lecher
Constr. Co., 231 Neb. 355, 357, 436 N.W.2d 188, 190 (1989),
quoting Schlanbusch v. Schlanbusch, 103 Neb. 588, 173 N.W.
580 (1919). When a party voluntarily complies with the man-
date of the trial court, satisfying the judgment, the appeal no
longer presents an actual controversy, but an abstract question.
Hormandl v. Lecher Constr. Co., supra. Accordingly, we must
first determine the effect of the postjudgment proceedings in
this case.
Did Appellants Voluntarily Pay Judgment?
[5,6] The rule in Nebraska is that payment of a judgment
does not destroy the right to appeal when the record shows that
the payment was coerced by legal process during the pendency
of the appeal. Green v. Hall, 43 Neb. 275, 61 N.W. 605 (1895);
Ray v. Sullivan, 5 Neb. App. 942, 568 N.W.2d 267 (1997).
Payments have been found not to be voluntary when made to
avoid a sale of property owned by the judgment debtor. See,
Burke v. Dendinger, 120 Neb. 594, 234 N.W. 405 (1931); Green
v. Hall, supra. Our rule requires a case-by-case examination of
the facts. Ray v. Sullivan, supra. The burden falls to the appel-
lant to demonstrate, by affidavit, that the appellant’s satisfaction
of the judgment was not voluntary, but was instead the result of
coercion by legal process. See id.
The Appellants argue that the trial court’s order disbursing
the funds intended to be the supersedeas bond/cash deposit was
satisfaction by coercion of legal process. This argument is not
necessarily persuasive, given that the coercion as alleged by the
Appellants came after the “satisfaction of judgment.” However,
the Appellants have made a strong showing that satisfaction
of the judgment was not voluntary. Counsel for the Appellants
submitted an affidavit in opposition to the motion for summary
dismissal, stating that he requested a supersedeas bond in the
amount of $278,000 to be tendered to the clerk of the court
on May 22, 2006, and that he was out of town on that date.
The Appellants’ counsel stated that he received a call from the
clerk of the court on the afternoon of May 22 or the morning
of May 23, advising that in lieu of a supersedeas bond, a check
from the Appellants’ insurance carrier had been tendered in the
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	527
Cite as 16 Neb. App. 516

amount of $278,000. The Appellants’ counsel stated that he
immediately communicated with counsel for D B Feedyards
on May 23 and requested agreement to the substitution of a
supersedeas cash deposit in lieu of a supersedeas bond. On
May 25, he received a return call from D B Feedyards’ counsel
denying the request. The Appellants’ counsel then “undertook
proceedings” to file a supersedeas cash deposit in lieu of a
supersedeas bond.
We find some guidance in La Borde v. Farmers State Bank,
116 Neb. 33, 215 N.W. 559 (1927). In that case, shortly before
death, the decedent changed the beneficiary of three insurance
policies each worth $10,000 from his estate to his wife (appel-
lant). The decedent died insolvent. Upon receipt of the insur-
ance money, the appellant deposited it in the defendant bank,
and the bank issued to her, against the deposit, a cashier’s check
for $20,000 and a draft for $10,000 drawn on a different bank.
The executor of the will, on behalf of the decedent’s creditors,
brought an action against appellant and the defendant bank,
seeking to have the change in beneficiary be decreed fraudulent
as to the executor’s creditors. The trial court found the change
to be fraudulent, ordered that the transfer of such insurance
should be canceled and set aside, and ordered the appellant
and the bank pay $27,803.53 to the clerk of the court for the
benefit of the estate. The record showed that after rendition
of judgment and before an appeal was taken, the defendant
bank paid $28,029.58 into the district court in accordance with
the judgment and that the appellant objected and reserved an
exception to the payment. The appellant appealed, and the
executor filed a motion to dismiss the appeal based upon com-
pliance with the judgment of the court. The Nebraska Supreme
Court reasoned:
The appellant has shown no intention of abandoning her
appeal, and we are satisfied that she did not intend that
the payment of the money by the defendant bank into
court should be regarded as a compliance on her part with
the judgment of the court so as to deprive her of the right
of appeal.
Id. at 38, 215 N.W. at 561.
528 	16 NeBRASkA APPellATe RePORTS

In the instant case, neither the Appellants nor their counsel
tendered the check to the court; rather, their insurance company
erroneously submitted a check rather than a bond. This is not
a situation where a party paid the judgment and then, having a
change in mind, sought to appeal from the judgment. There is
no doubt that the parties and the trial court were well aware that
the Appellants intended to file a supersedeas bond of $278,000
on May 22, 2006. The actions of the Appellants’ counsel upon
learning of the mistakenly submitted check clearly demonstrate
that the Appellants did not intend to abandon the appeal and
did not intend the check to be considered compliance with
the judgment.
The district court found that the Appellants did not file a
supersedeas bond or a cash deposit with the clerk of the court,
but that the Appellants’ representatives submitted a check, con-
taining no guarantee or certification and not deposited with any
conditions. The district court also found that none of the subse-
quent filings met the statutory requirements to supersede judg-
ment. These findings of the district court have not been raised
on appeal, and we do not address them further in this opinion,
other than to state that even if the attempt to supersede was
invalid, that is a separate and distinct question from whether the
appeal is moot because of the “voluntary” payment.
In addition to the above-cited Nebraska case law, the follow-
ing commentary is useful to our resolution of the question of
whether the Appellants voluntarily paid the judgment:
While it is often said that a party who voluntarily satis-
fies a judgment may not appeal from that judgment, certain
jurisdictions do not apply this rule where the payment of
a judgment is not tendered as a compromise or settlement
or under an agreement not to appeal, either on the ground
that such payment is involuntary, or on the ground that
such payment does not necessarily constitute waiver of the
right to appeal, especially where repayment or restitution
may be enforced, in the event of a reversal.
There is general agreement that the involuntary pay-
ment of a judgment does not preclude appeal; a judgment
paid, in full or in part, under legal coercion remains ripe
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	529
Cite as 16 Neb. App. 516

for judicial review. This rule applies in criminal as well
as civil cases.
Also, an appeal is not barred by a payment which does
not fully satisfy the judgment, such as where there remains
an issue as to the payment of attorney’s fees, or where a
judgment is only partially satisfied by execution. Moreover,
the tender of payment by a third party who is not under
the appellant’s control does not indicate acceptance of the
judgment, and thus does not bar the right of appeal.
5 Am. Jur. 2d Appellate Review § 583 at 341-42 (2007).
Whether a payment is voluntary depends on the facts
of the particular case as indicating an intention on the part
of the payer to waive his or her legal rights. Thus, neither
the mere statement of an intent not to waive the right of
appeal, nor the failure to expressly reserve the right to
appeal, necessarily determines whether a judgment was
paid voluntarily.
. . . .
voluntary satisfaction will not be found where pay-
ment was made in lieu of posting a supersedeas bond,
nor where the appellee implicitly recognizes that payment
was not voluntary by failing to move for dismissal of
the appeal.
5 Am. Jur. 2d, supra, § 584 at 342-43. See, also, Rosenblum v.
Jacks or Better of Am. West, 745 S.W.2d 754 (Mo. App. 1988)
(payment did not moot appeal where appellees did not seek
dismissal of appeal, payment did not fully satisfy judgment, and
documents appended to appellant’s brief reflected that payment
was made in lieu of posting supersedeas bond or submitting to
execution, and not voluntarily, in sense that payment was made
so as to end matter).
The payment of a money judgment does not moot an
appeal where repayment can be enforced, or where there
is a remaining issue of contribution. However, an appeal
can be rendered moot if execution of a judgment cannot
be undone, such as where specific property is sold to third
parties pursuant to a court order.
5 Am. Jur. 2d, supra, § 608 at 362.
530 	16 NeBRASkA APPellATe RePORTS

We conclude that the payment made in this case was not
“voluntary” and thus does not moot the Appellants’ appeal. The
Appellants clearly intended to appeal. They sought and were
granted permission to file a supersedeas bond in the amount of
$278,000. The check tendered was for the exact amount of the
supersedeas bond the Appellants’ were seeking to file, rather
than for the exact amount of the judgment, and was tendered
not by the Appellants but by their insurance carrier. Once the
mistake had been identified, the Appellants took prompt meas-
ures to remedy the situation, but the district court ultimately
denied their request and found that they had failed to supersede
the judgment. This is not a situation where, if we were to find
for the Appellants on appeal, repayment of the funds that the
district court ordered to be disbursed to D B Feedyards cannot
be enforced. Accordingly, we proceed to consider the merits of
this appeal.
Was Summary Judgment Proper?
[7] The district court found for D B Feedyards on its negli-
gence claim. In order to prevail in a negligence action, a plain-
tiff must establish the defendant’s duty to protect the plaintiff
from injury, a failure to discharge that duty, and damages proxi-
mately caused by the failure to discharge that duty. National
Am. Ins. Co. v. Constructors Bonding Co., 272 Neb. 169, 719
N.W.2d 297 (2006).
[8-12] Whether a legal duty in negligence exists is a ques-
tion of law. Moglia v. McNeil Co., 270 Neb. 241, 700 N.W.2d
608 (2005). In negligence cases, the duty is always the same,
to conform to the legal standard of reasonable conduct in light
of the apparent risk. Id. In determining whether a duty exists,
an appellate court employs a risk-utility test, considering (1)
the magnitude of the risk, (2) the relationship of the parties, (3)
the nature of the attendant risk, (4) the opportunity and ability
to exercise care, (5) the foreseeability of the harm, and (6) the
policy interest in the proposed solution. Id. Once a court deter-
mines that a duty is owed by one party to another, it becomes
necessary to define the scope and extent of the duty. Cerny v.
Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	531
Cite as 16 Neb. App. 516

(2001). In other words, the necessary complement of duty—the
standard of care—must be ascertained. Id. Determining the
standard of care to be applied in a particular case is a question
of law. Id. The Nebraska Supreme Court has stated that “[t]hat
standard is typically general and objective and is often stated
as the reasonably prudent person standard, or some variation
thereof; i.e., what a reasonable person of ordinary prudence
would have done in the same or similar circumstances.” Id. at
73, 628 N.W.2d at 703-04.
This basic standard, however, is not invariably applied
in all negligence cases. For example, the standard is modi-
fied in circumstances in which the alleged tort-feasor pos-
sesses special knowledge, skill, training, or experience
pertaining to the conduct in question that is superior to that
of the ordinary person. Such a person is not held to the
standard of a reasonably prudent person, but, rather, to a
standard consistent with his or her specialized knowledge,
skill, and other qualities.
Id. at 73, 628 N.W.2d at 704.
The district court observed that D B Feedyards hired eSI
to perform environmental consulting services, a skill eSI held
itself out to possess. The court determined that the undisputed
material facts demonstrated that eSI owed a duty to perform
its services to D B Feedyards as a reasonable environmen-
tal consultant with specialized knowledge, skill, training, and
experience would perform them under similar circumstances.
We find no error in this conclusion by the district court. Grams
expounded at length in his affidavit about the duty and standard
of care owed by consultants such as eSI in circumstances like
those presented in this case, none of which information was
rebutted by Bonenberger’s affidavit.
[13] The ultimate determination of whether a party devi-
ated from the standard of care and was therefore negligent is a
question of fact. Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., supra.
To resolve the issue, a finder of fact must determine what con-
duct the standard of care would require under the particular
circumstances presented by the evidence and whether the con-
duct of the alleged tort-feasor conformed with the standard. Id.
D B Feedyards offered the affidavit of Grams to demonstrate
532 	16 NeBRASkA APPellATe RePORTS

what a reasonable environmental consultant would have done
in the circumstances presented by this case. The district court
determined that the Appellants offered no testimony or evidence
to rebut the testimony of Grams. The district court found that in
particular, Bonenberger failed to aver that he was familiar with
the applicable standard of care, failed to offer any testimony as
to what the applicable standard of care is, and failed to aver that
the Appellants complied with the standard of care. The court
found that the undisputed material facts demonstrate that the
Appellants failed to comply with the standard of care by failing
to communicate in a timely manner with the DeQ on behalf
of D B Feedyards; failing to comply with DeQ regulations to
ensure that the application filed on March 28, 2003, was com-
plete; and failing to file a complete application by October 21,
2003. We find no error in the district court’s determination in
this regard.
[14,15] A party moving for summary judgment must make
a prima facie case by producing enough evidence to demon-
strate that the movant is entitled to judgment if the evidence
were uncontroverted at trial. Pogge v. American Fam. Mut.
Ins. Co., 272 Neb. 554, 723 N.W.2d 334 (2006). Once the
moving party makes a prima facie case, the burden to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party oppos-
ing the motion. Id. We conclude that the entry of summary
judgment was appropriate with regard to the district court’s
findings that the Appellants breached the duty of cared owed
to D B Feedyards.
[16-20] We determine that there are disputed questions of
material fact relating to the issue of causation which preclude
summary judgment on the issue of damages. The burden of
tying the negligence to the damage claimed remains on the
claimant even when the other party is guilty of negligence as
a matter of law. See Beavers v. Christensen, 176 Neb. 162,
125 N.W.2d 551 (1963). A proximate cause is a cause that (1)
produces a result in a natural and continuous sequence and
(2) without which the result would not have occurred. Staley
v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006). A
defendant’s conduct is a proximate cause of an event if the
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	533
Cite as 16 Neb. App. 516

event would not have occurred but for that conduct, but it is
not a proximate cause if the event would have occurred without
that conduct. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282
(2007). A proximate cause need not be the sole cause; it need
only be “a” proximate cause. See, Meyer v. State, 264 Neb. 545,
650 N.W.2d 459 (2002); Fackler v. Genetzky, 263 Neb. 68, 638
N.W.2d 521 (2002). The question of proximate cause, in the
face of conflicting evidence, is ordinarily one for the trier of
fact, and the court’s determination will not be set aside unless
clearly wrong. Staley v. City of Omaha, supra.
In 	finding 	that 	eSI’s 	negligence 	proximately 	caused
D B Feedyards’ injury, the district court noted that after eSI
failed to complete the permit application, the ePA initiated an
enforcement action against D B Feedyards. The court found
that the resulting fine was for discharges that would have been
authorized had eSI filed the permit application in a timely
manner. The court also relied on Grams’ affidavit statement
that the ePA would not have initiated an enforcement action
if a timely permit application had been filed and that one of
the most significant factors in determining whether to bring an
enforcement action is evidence of good faith efforts to timely
meet the agency’s demands. The court determined that the
undisputed evidence offered by D B Feedyards, even viewed
in a light most favorable to the Appellants, supported no
other conclusion.
The district court determined that the foregoing established a
prima facie case that eSI’s breach was the “sole and proximate
cause” of the damages incurred by D B Feedyards and that
the only evidence offered by the Appellants supported, rather
than contradicted, this conclusion. Our review of the evidence,
viewed in the light most favorable to the Appellants, leads us
to conclude that the Appellants produced sufficient evidence to
show the existence of a material issue of fact concerning the
issue of causation.
Bonenberger, who reviewed the DeQ file on D B Feedyards
in preparation for his affidavit statements and who certainly has
some training, skill, and expertise in the area of environmental
consultancy, stated that half of the findings, recommendations,
and/or conclusions in the ePA inspection report of May 2004
534 	16 NeBRASkA APPellATe RePORTS

were exclusive of the services contemplated and/or included in
the contractual and/or consulting agreement between the parties.
Bonenberger further stated, based upon his education, training,
and experience as an environmental consultant that the fine
imposed of $135,000 does not reflect fines or sanctions limited
to the scope or term of employment of eSI by D B Feedyards.
The documents from the ePA indicate that it was D B
Feedyards’ continued unauthorized discharge of pollutants and
the failure to submit a proper or complete application that pre-
cipitated the enforcement action. Further, the failure to submit
a proper permit application was noted as one of the factors that
precipitated the action. In other words, on this record, there is a
question of fact as to whether the Appellants’ failure to submit
the permit was a proximate cause of all of the damages resulting
from the ePA enforcement action.
[21] The district court also discussed Bonenberger’s asser-
tions that the proximate cause of D B Feedyards’ damages was
the negligence of the Flatwater Group in failing to timely com-
pile and complete its engineering duties. Because we find that a
genuine issue of material fact exists regarding causation, which
requires further proceedings, we do not address further the issue
of causation relative to the Flatwater Group. An appellate court
is not obligated to engage in an analysis that is not needed to
adjudicate the controversy before it. Fokken v. Steichen, 274
Neb. 743, 744 N.W.2d 34 (2008).
We conclude that the evidence submitted by the Appellants,
when viewed in the light most favorable to the Appellants and
giving them the benefit of all reasonable inferences deducible
from the evidence, was sufficient to raise a genuine issue of
material fact as to the causation of the damages suffered by
D B Feedyards as a result of eSI’s negligence. Accordingly,
summary judgment on the issue of causation of damages was
not proper.
CONClUSION
We find that the Appellants did not voluntarily satisfy judg-
ment so as to moot this appeal. We further find that the district
court was correct in granting summary judgment on the issue of
negligence but erred in granting summary judgment on the issue
D B FeeDyARDS v. eNvIRONMeNTAl SCIeNCeS 	535
Cite as 16 Neb. App. 516

of causation. Accordingly, we affirm the summary judgment in
favor of D B Feedyards and against the Appellants with regard
to the issue of eSI’s negligence; however, we reverse, and
remand for further proceedings on the issue of causation.
A ffiRmed in pARt , And in pARt ReveRsed And
RemAnded foR fuRtheR pRoCeedings .
mbnA A meRiCA bAnk , n.A., Appellee , v .
pAul J ohn hAnsen , AppellAnt .
745 N.W.2d 609
Filed March 4, 2008. 	No. A-06-748.
1. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exer-
cise its subject matter jurisdiction to adjudicate the merits of the claim, issue, or
question, an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion independent of
the lower court’s decision.
3. Rules of the Supreme Court: Appeal and Error. A party may move for rehear-
ing in an appellate court based upon any claimed mistakes or inaccuracies in
statements of fact or law in the opinion, and any questions involved which the
court is claimed to have failed to consider on the appeal.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power
to hear and determine a case in the general class or category to which the proceed-
ings in question belong and to deal with the general subject involved in the action
before the court and the particular question which it assumes to determine.
5. Actions: Jurisdiction. lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
6. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial
tribunal by either acquiescence or consent, nor may subject matter jurisdiction be
created by waiver, estoppel, consent, or conduct of the parties.
7. Constitutional Law: Jurisdiction: Legislature. The jurisdiction of the district
courts conferred by the terms of the Nebraska Constitution, as thus conferred, is
beyond the power of the legislature to limit or control; while the legislature may
grant to the district courts such other jurisdiction as it may deem proper, it cannot
limit or take away from such courts their broad and general jurisdiction which the
constitution has conferred upon them.
8. Courts: Jurisdiction. A county court has concurrent original jurisdiction with the
district court in all civil actions of any type when the amount in controversy is
$51,000 or less.
536 	16 NeBRASkA APPellATe RePORTS