Jacob v. Schlichtman

CONCLUSION
The district court’s finding that good cause existed to ter-
minate Williams’ employment, rather than impose a lesser
sanction, was supported by competent evidence and was not
arbitrary, capricious, nor unreasonable.
A ffirmed .
S teven m. JAcob , AppellAnt And croSS-Appellee , v .
mArgAret v. S chlichtmAn , formerly known AS
mArgAret S huck , S peciAl A dminiStrAtor of
the eStAte of melody J. hopper , deceASed ,
Appellee And croSS-AppellAnt .
753 N.W.2d 361
Filed June 17, 2008. 	No. A-07-180.
1. Trial: Costs: Appeal and Error. The action of the trial court in taxing costs is not
reviewable unless an abuse of discretion is shown.
2. Judgments: Verdicts. To sustain a motion for judgment notwithstanding the ver-
dict, the court resolves the controversy as a matter of law and may do so only when
the facts are such that reasonable minds can draw but one conclusion.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
When reviewing questions of law, an appellate court has an obligation to resolve
the questions independently of the conclusion reached by the trial court.
4. Statutes: Judgments: Costs. Where it is not otherwise provided by Neb. Rev.
Stat. § 25-1708 (Reissue 1995) and other statutes, costs shall be allowed of course
to the plaintiff, upon a judgment in his favor, in actions for the recovery of money
only, or for the recovery of specific real or personal property.
5. Costs: Prisoners. Transportation costs as provided for by Neb. Rev. Stat. § 25-1233
(Cum. Supp. 2006) are not the type of costs Neb. Rev. Stat. § 25-1708 (Reissue
1995) contemplates taxing to a losing party.
6. Replevin: Damages. In replevin, damages for the detention of the property are
recoverable only in case of a return. If the property is not returned, the measure
of damages is the value of the property as proved, together with lawful interest
thereon from the date of the unlawful taking.
7. ____: ____. The party recovering possession of property by replevin is entitled to
recover as damages any deterioration or depreciation in the value which has taken
place during the wrongful detention.
8. Replevin: Damages: Proof. It is fundamental that the plaintiff’s burden to prove
the nature and amount of damages cannot be sustained by evidence which is
speculative and conjectural.
JACOb v. SChLIChTmAN 	783
Cite as 16 Neb. App. 783
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

9. Insurance: Value of Goods: Auctions. The price paid for an insurance policy at
auction is not necessarily evidence of the policy’s value, because sale price is often
not synonymous with actual value.
10. Value of Goods. The purchase price of property may be taken into consideration
in determining the actual value thereof for assessment purposes, together with all
other relevant elements pertaining to such issue.
11. Value of Goods: Offers to Buy or Sell: Words and Phrases. Fair market value is
the price which property will bring when offered for sale upon the open market as
between a willing seller and buyer, neither being obligated to buy or sell.
12. Replevin: Damages. The damages for detention in a replevin action must be such
as grow out of the detention and are connected with or incident to the contest
over possession.
13. Judges: Recusal. A judge shall be disqualified if a reasonable person who knew
the circumstances of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual bias or prejudice
was shown.
14. Prejudgment Interest. The general rule is that prejudgment interest may be recov-
ered on claims that are liquidated. A claim is liquidated if the evidence furnishes
data which, if believed, makes it possible to compute the amount with exactness,
without reliance upon opinion or discretion.
15. ____. Where a reasonable controversy exists as to the plaintiff’s right to recover or
as to the amount of such recovery, the claim is generally considered to be unliqui-
dated and prejudgment interest is not allowed.
Appeal from the District Court for Lancaster County: J effre
cheuvront, Judge. Affirmed.
Steven m. Jacob, pro se.
Thomas E. Zimmerman, of Jeffrey, hahn, hemmerling &
Zimmerman, P.C., for appellee.
S ieverS, moore, and cASSel, Judges.
S ieverS, Judge.
Steven m. Jacob is currently serving a life sentence follow-
ing his conviction of first degree murder in the death of melody
J. hopper. See State v. Jacob, 253 Neb. 950, 574 N.W.2d 117
(1998). hopper’s mother, margaret V. Schlichtman, formerly
margaret Shuck, filed a damage suit against hopper’s assail-
ant, Jacob. After summary judgment on liability was entered
for Schlichtman, the matter of damages for hopper’s death
was tried, and a verdict for $734,704 was rendered by a
784 	16 NEbRASkA APPELLATE REPORTS

Lancaster County jury on April 13, 1992. That judgment was
reversed in Shuck v. Jacob, 250 Neb. 126, 548 N.W.2d 332
(1996), because Jacob’s conviction that was the sole basis for
the summary judgment on liability was not then final, although
now it is.
Thereafter, Jacob commenced this replevin action against
Schlichtman to recover items of personal property which he
claims were wrongfully executed upon. The trial court ruled
as a matter of law that the attachment was wrongful—a find-
ing not challenged by Schlichtman. The matter went to trial on
damages, and the jury awarded Jacob $14,805.08 in damages.
however, the trial judge granted Schlichtman’s motion for judg-
ment notwithstanding the verdict against Jacob, finding that
the evidence allowed a damage award of only $2,805.08. Jacob
appeals this action by the trial court, as well as several other
collateral issues. We affirm the trial court’s reduction of Jacob’s
judgment against Schlichtman.
FACTUAL AND PROCEDURAL bACkGROUND
On August 2, 1989, hopper was shot, and on August 7, she
died from her wounds. On August 4, Schlichtman obtained an
order for attachment of Jacob’s property including the property
involved in this lawsuit. The attachment order included a life
insurance policy and shares of stock in Legacy Technologies
Ltd. (Legacy). Jacob’s life insurance policy and the shares of
stock were sold at a public auction on June 9, 1992, for $6,000
each to Schlichtman. The insurance policy was later cashed in
by Schlichtman for $2,805.08.
however, the wrongful death judgment was reversed on
appeal, and Jacob moved the district court to vacate the sale of
his insurance policy and stock. The district court did so. Jacob
then filed a replevin action, seeking the return of his property
and damages. Jacob obtained partial summary judgment on the
issue of liability, and the only issue tried in this case was the
matter of damages. Therefore, we do not discuss any liabil-
ity issues.
Prior to the trial on damages, Jacob requested a transport
order, because he was (and is) incarcerated. Jacob was required
JACOb v. SChLIChTmAN 	785
Cite as 16 Neb. App. 783

to pay the transportation costs, $548, and he now seeks to have
such costs paid by Schlichtman.
At trial, the jury found in favor of Jacob, awarding him dam-
ages of $8,805.08 for his life insurance policy and $6,000 for
his stock shares. On October 19, 2006, judgment was entered
for Jacob for $14,805.08.
Jacob filed a motion to alter or amend, requesting prejudg-
ment interest on his award; he also filed a motion for his
costs. Schlichtman filed a motion for judgment notwithstanding
the verdict, claiming the evidence was insufficient to support
the jury’s verdict. The trial court reduced Jacob’s award to
$2,805.08 and awarded him 12 percent prejudgment interest on
that judgment beginning June 9, 1992, the date the policy was
sold at public auction to Schlichtman. Jacob timely appealed;
Schlichtman cross-appealed.
ASSIGNmENTS OF ERROR
Jacob assigns the following errors to the district court: (1)
requiring him to pay his own transportation costs, (2) not award-
ing him costs, (3) granting Schlichtman’s motion for judgment
notwithstanding the verdict, and (4) being biased against him.
In her cross-appeal, Schlichtman asserts that the district court’s
award of prejudgment interest was error.
STANDARD OF REVIEW
[1] The action of the trial court in taxing costs is not review-
able unless an abuse of discretion is shown. Hein v. M & N Feed
Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980).
[2] To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds
can draw but one conclusion. Eyl v. Ciba-Geigy Corp., 264 Neb.
582, 650 N.W.2d 744 (2002).
[3] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. Whipps Land & Cattle Co. v. Level 3
Communications, 265 Neb. 472, 658 N.W.2d 258 (2003).
786 	16 NEbRASkA APPELLATE REPORTS

ANALYSIS
Jacob’s Costs.
[4] Jacob asserts that the district court should have awarded
him his costs based on Neb. Rev. Stat. § 25-1708 (Reissue
1995). Section 25-1708 provides the following: “Where it is
not otherwise provided by this and other statutes, costs shall be
allowed of course to the plaintiff, upon a judgment in his favor,
in actions for the recovery of money only, or for the recovery of
specific real or personal property.”
Jacob prevailed in his action to recover in this replevin action.
Therefore, he is entitled to costs, and in the district court’s order
of January 23, 2007, costs were in fact awarded to him.
[5] Jacob’s real complaint is that his transportation costs
of slightly over $500 were not part of the court’s award of
costs. Jacob argues that Neb. Rev. Stat. § 25-1233 (Cum.
Supp. 2006) requires Schlichtman to pay for his transportation
costs. however, Jacob’s transportation costs as provided for by
§ 25-1233 are not the type of costs § 25-1708 contemplates tax-
ing to the losing party, because Jacob incurred such costs under
§ 25-1708 solely to secure his attendance at trial in his capac-
ity as a party to the lawsuit. Jacob’s transportation costs arise
because he is incarcerated and must be supervised by personnel
from the Department of Correctional Services if he is to travel
to and attend a trial. Jacob cannot get himself to the courthouse,
because he is an incarcerated felon, meaning that he must be
physically transported by prison authorities and that the public
must be protected and escape prevented. In other words, the
transportation and security costs at issue arise because of Jacob’s
status as a convicted felon.
Jacob’s claim that these costs should be taxed to Schlichtman
is akin to a plaintiff’s issuing a subpoena to himself or herself
and then relying upon such subpoena, seeking to have fees and
mileages for his or her own attendance at trial taxed against the
opposing party. Such a result or procedure has no support in
Nebraska law. Therefore, § 25-1708 provides no basis for taxing
the costs of Jacob’s transportation order to Schlichtman.
Although Jacob argues that § 25-1233 requires Schlichtman
to pay for his transportation costs, § 25-1233 simply ensures
JACOb v. SChLIChTmAN 	787
Cite as 16 Neb. App. 783

that the Department of Correctional Services will be paid for the
expense of transporting Jacob to trial, and does not address who,
as between the parties to litigation, is responsible for Jacob’s
transportation costs. Section 25-1233 provides as follows:
(1) A person confined in any prison in this state shall,
by order of any court of record, be produced for oral
examination in the county where he or she is impris-
oned. In all other cases his or her examination must be
by deposition.
(2) In civil matters, the court shall notify the Department
of Correctional Services of any production order, in which
a confined person is the subject, at least fifteen days
before the required production. The court shall allow the
department to present evidence relating to public safety
and security concerns associated with the production of
the confined person prior to the required production date.
The party who moved for the production order shall be
allowed to respond. based on evidence presented, the court
may rescind its production order. If the confined person is
produced pursuant to court order, the party who moved for
the production order shall pay to the department the actual
cost of security and transportation arrangements incurred
by the department related to such production.
Jacob claims that although he requested the transportation
order, he should not be required to pay for the costs of his
transportation, because he did not testify in his own behalf in
his case; rather, it was Schlichtman who called him to testify in
her case. however, the fact that Schlichtman took advantage of
the fact that Jacob had arranged his presence in the courtroom
and then called him as her witness does not change the fact that
this statute merely ensures that the Department of Correctional
Services is paid. The statute says nothing about who is ulti-
mately responsible for such costs when the trial court gets to the
point of taxing costs as between parties. As said above, the costs
which Jacob seeks to impose on Schlichtman arise solely from
the fact that he is a convicted felon and wanted to be physically
present in court—which, given his status as a prisoner, involves
extra expense only because of the crimes he committed. It
would be grossly unfair to impose those costs on Schlichtman.
788 	16 NEbRASkA APPELLATE REPORTS

Thus, the trial court did not abuse its discretion in the taxation
of costs.
Judgment Notwithstanding Verdict.
Jacob argues that the district court erred by sustaining
Schlichtman’s motion for judgment notwithstanding the verdict.
We affirm the district court’s decision, because the only compe-
tent evidence of the value of the life insurance policy is that it
was worth $2,805.08 and there was no evidence that Schlichtman
caused any deterioration in the value of the Legacy stock.
It is clear that the jury determined damages by adding the
amounts that Schlichtman paid at auction for the insurance pol-
icy ($6,000) and stock ($6,000) to the amount that Schlichtman
received when she cashed the insurance policy in ($2,805.08) to
arrive at the total award of $14,805.08. however, this is not the
proper measure of damages in a replevin action.
[6-8] In replevin, damages for the detention of the property
are recoverable only in case of a return. If the property is not
returned, the measure of damages is the value of the property as
proved, together with lawful interest thereon from the date of
the unlawful taking. See Oak Creek Valley Bank v. Hudkins, 115
Neb. 628, 214 N.W. 68 (1927). The party recovering possession
of the property is entitled to recover as damages any deteriora-
tion or depreciation in the value which has taken place during
the wrongful detention. White Motor Credit Corp. v. Sapp Bros.
Truck Plaza, Inc., 197 Neb. 421, 249 N.W.2d 489 (1977), over-
ruled on other grounds, United States Nat. Bank v. Atlas Auto
Body, 214 Neb. 597, 335 N.W.2d 288 (1983). “It is fundamental
that the plaintiff’s burden to prove the nature and amount of
damages cannot be sustained by evidence which is speculative
and conjectural.” Dawson v. Papio Nat. Resources Dist., 206
Neb. 225, 232, 292 N.W.2d 42, 47 (1980).
[9,10] here, the best evidence of the value of the life insur-
ance policy is the amount it was cashed out for, $2,805.08.
Jacob produced evidence that the death benefit of the insur-
ance policy was $10,000, but this is not a measure of the life
insurance policy’s value on the date it was seized, but, rather,
of the contractual death benefit. While the death benefit could
possibly have some relationship to the policy’s value on the
JACOb v. SChLIChTmAN 	789
Cite as 16 Neb. App. 783

date it was seized if it were combined with some type of expert
testimony explaining that relationship, there was no such evi-
dence. Further, the price paid for the policy at auction, $6,000,
is also not necessarily evidence of the policy’s value, because
sale price is often not synonymous with actual value. See,
Neill v. McGinn, 175 Neb. 369, 122 N.W.2d 65 (1963) (value
of automobile could not be determined by its purchase price);
Lancaster Cty. Bd. of Equal. v. Condev West, Inc., 7 Neb. App.
319, 581 N.W.2d 452 (1998) (value of real property could not
be determined by its purchase price). but see Forney v. Box
Butte Cty. Bd. of Equal., 7 Neb. App. 417, 582 N.W.2d 631
(1998) (purchase price of property may be taken into consid-
eration in determining the actual value thereof for assessment
purposes, together with all other relevant elements pertaining
to such issue).
[11] Fair market value is the price which property will bring
when offered for sale upon the open market as between a will-
ing seller and buyer, neither being obligated to buy or sell. Smith
v. Papio-Missouri River NRD, 254 Neb. 405, 576 N.W.2d 797
(1998). here, when the buyer holds a judgment against the prop-
erty’s owner for more than $700,000, and she is bidding against
only the property owner’s mother for the property, the sales price
is simply not the fair market value of the property, remembering
that Schlichtman ends up with the money she pays for the item
attached and sold at auction. In short, what Schlichtman paid for
the policy is not evidence of its fair market value.
The only evidence that establishes the value of Jacob’s insur-
ance policy at the time it was seized from him in 1989 is what
its cash value was in 1992, $2,805.08. In short, the evidence
before the jury would support only a finding that the policy’s
value was $2,805.08. Therefore, the district court correctly
granted Schlichtman’s motion for judgment notwithstanding
the verdict with respect to the insurance policy, and we affirm
that finding.
[12] With regard to the stock, the shares were returned to
Jacob, so he can recover damages only in the event that such
shares deteriorated in value between the time they were taken
from him and the time they were returned. While there is
evidence that the stock deteriorated in value between the time
790 	16 NEbRASkA APPELLATE REPORTS

it was seized and the time it was returned, “‘the damages for
detention must be such as grow out of the detention and are
connected with or incident to the contest over possession.’”
See Morfeld v. Bernstrauch, 216 Neb. 234, 241, 343 N.W.2d
880, 884 (1984). here, there is no evidence upon which a
jury could find that Schlichtman caused the deterioration of
the stock’s value or that such deterioration grew out of or was
connected with the contest over its possession. Rather, the evi-
dence strongly suggests, if not compels, the conclusion that the
stock’s value (whatever it was when attached, a matter upon
which Jacob introduced no evidence beyond the amount of
Schlichtman’s bid) was adversely affected by the fact that Jacob
was the majority owner and principal employee of Legacy.
because there is no evidence that any deterioration in the value
of the stock “grew out of the detention” by Schlichtman, Jacob
cannot recover for such deterioration, and therefore the trial
court properly granted Schlichtman’s motion for judgment not-
withstanding the verdict concerning the stock.
Would a Reasonable Person Have Concluded
That the Trial Judge Was Biased?
Jacob claims that the trial judge took on a role of advocate for
Schlichtman when, in an order ruling on a motion for summary
judgment by Jacob, the judge wrote, “If Jacob consents, this
court could find that the appropriate date from which to com-
mence the interest is September 16, 1992 and the court would
enter judgment in his favor in the amount of $2,805.08 with
interest . . . .” Jacob suggests this showed partiality on the part
of the judge. however, we find that a reasonable person would
not have concluded that the trial judge was biased because of
this order.
The level of proof needed to establish that an arbitrator was
biased was addressed in Dowd v. First Omaha Sec. Corp., 242
Neb. 347, 495 N.W.2d 36 (1993). The Dowd court established
that the partiality of an arbitrator was established when a “‘rea-
sonable person would have to conclude that an arbitrator was
partial to one party to the arbitration.’” 242 Neb. at 358, 495
N.W.2d at 43. The court rejected the notion that partiality could
be proved by the mere “‘appearance of bias’” and, instead,
JACOb v. SChLIChTmAN 	791
Cite as 16 Neb. App. 783

adopted the “reasonable person” test. Id. The court noted that
judges and arbitrators were both subject to the same ethical stan-
dards and proceeded to address whether an arbitrator’s failure to
disclose a possible conflict of interest proved bias or prejudice
against one party.
[13] State v. Pattno, 254 Neb. 733, 739-40, 579 N.W.2d 503,
507-08 (1998), states:
The federal courts have consistently applied the standard
that we adopted in Dowd for determination of whether
a judge was biased against a defendant. Pursuant to 28
U.S.C. § 455(a) (1994), a judge shall be disqualified if a
reasonable person who knew the circumstances of the case
would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or
prejudice was shown. See Renteria v. Schellpeper, 936 F.
Supp. 691 (D. Neb. 1996). . . .
The reasonable person test adopted by this court in
Dowd is a rational means of determining whether a judge
is biased against a defendant.
here, a reasonable person would not conclude that the trial
judge was biased. It is clear from his order that he was simply
attempting to facilitate a resolution of the proceedings and to
avoid further proceedings, which only suggests an appropriate
interest on his part in both the conservation of judicial resources
and the timely resolution of the parties’ disputes. Jacob’s allega-
tion of judicial bias is without merit.
Did District Court Err in Awarding
Jacob Prejudgment Interest?
The 	district 	court 	correctly 	awarded 	prejudgment 	inter-
est because Jacob’s damages were determinable with reason-
able certainty.
[14,15] The general rule is that prejudgment interest may be
recovered on claims that are liquidated. “‘“A claim is liquidated
if the evidence furnishes data which, if believed, makes it possi-
ble to compute the amount with exactness, without reliance upon
opinion or discretion.”’” First Data Resources, Inc. v. Omaha
Steaks Int., Inc., 209 Neb. 327, 335, 307 N.W.2d 790, 794
(1981). Where reasonable controversy exists as to the plaintiff’s
792 	16 NEbRASkA APPELLATE REPORTS

right to recover or as to the amount of such recovery, the claim
is considered to be unliquidated and prejudgment interest is not
allowed. Langel Chevrolet-Cadillac v. Midwest Bridge, 213 Neb.
283, 329 N.W.2d 97 (1983).
Schlichtman claims that the damages in this case were not
liquidated, because they could not be computed with exactness;
however, for the same reason that Schlichtman’s motion for
judgment notwithstanding the verdict was rightfully successful—
because reasonable minds could arrive at only one conclusion
regarding damages with respect to the insurance policy—Jacob’s
damages were liquidated on the policy. The only credible evi-
dence of Jacob’s damages is the cash value Schlichtman received
for his life insurance policy. That amount was determinable with
exactness, and Jacob’s entitlement to damages was determined
as a matter of law on a motion for summary judgment, a deter-
mination not challenged on appeal. Therefore, because liability
was not in dispute, nor was the amount of damages on the
life insurance policy, prejudgment interest was appropriate in
this case.
CONCLUSION
For the reasons stated above, we affirm the decision of the
district court.
A ffirmed .
gerAld tlAmkA, AppellAnt , v .
nicholAS pArry et Al ., AppelleeS.
751 N.W.2d 664
Filed June 17, 2008. 	No. A-07-412.
1. Jurisdiction. Subject matter jurisdiction is a question of law for the court.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s power
to hear a case.
4. Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any
party or by the court sua sponte.
TLAmkA v. PARRY 	793
Cite as 16 Neb. App. 793