JHK, Inc. v. Nebraska Dept. of Banking & Finance

damages to the land. Cordes testified that the increased flow
would continue into the future, but there was no evidence as to
whether that would cause damage to the land or crops in the
future. Thus, there was no evidence of irreparable damage. In
a suit for an injunction, a failure to show damages, presently
or in the future, operates to defeat an application for injunctive
relief. Muff v. Mahloch Farms Co., Inc., 184 Neb. 286, 167
N.W.2d 73 (1969). For this additional reason, an injunction
would be inappropriate.
CONCLUSION
We conclude that appellants are not entitled to an injunc-
tion against appellees because the evidence does not show that
appellees acted negligently or unreasonably in the dispersion
of surface water upon the land of appellants, and the evidence
does not show irreparable harm to appellants. Accordingly, the
judgment of the trial court is affirmed.
A ffirmed .
JHK, inc ., doing business As fAst money , et Al .,
AppellAnts , v . nebrAsKA depArtment of
bAnKing And finAnce , Appellee .
757 N.W.2d 515
Filed November 4, 2008. 	No. A-07-1317.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.
3. Trial: Appeal and Error. The disposition of procedural motions is left to the
discretion of the trial court, and absent a showing of an abuse of that discretion,
an appellate court will affirm the trial court’s rulings regarding such motions.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrain
from action, but the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through the judicial system.
186 	17 NebrASkA APPeLLATe rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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5. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
6. Administrative Law: Appeal and Error. Under Neb. rev. Stat. § 84-917(5)(a)
(Cum. Supp. 2006), the district court’s review is de novo on the record of
the agency.
7. Constitutional Law: Legislature: Immunity: Waiver. Neb. Const. art. V, § 22,
permits the State to lay its sovereignty aside and consent to be sued on such terms
and conditions as the Legislature may prescribe.
8. ____: ____: ____: ____. Neb. Const. art. V, § 22, is not self-executing, but
instead requires legislative action for waiver of the State’s sovereign immunity.
9. Immunity: Waiver. Waiver of sovereign immunity will be found only where
stated by the most express language or by such overwhelming implications from
the text as will leave no room for any other reasonable construction.
10. Declaratory Judgments: Immunity: Waiver. Nebraska’s Uniform Declaratory
Judgments Act does not waive the State’s sovereign immunity, and a plaintiff who
seeks declaratory relief against the State must find authorization for such remedy
outside the confines of the Uniform Declaratory Judgments Act.
Appeal from the District Court for Lancaster County: JoHn
A. colborn, Judge. Affirmed.
Terry k. barber, of barber & barber, P.C., L.L.O., for
appellants.
Jon bruning, Attorney General, and Fredrick F. Neid for
appellee.
inbody, Chief Judge, and moore and cAssel, Judges.
cAssel, Judge.
INTrODUCTION
A Nebraska corporation and its officers, agents, and employ-
ees filed an action in the district court, seeking review of an
adverse decision by the Nebraska Department of banking
and Finance (the Department) and seeking declaratory judg-
ment. We find statutory authority supporting the Department’s
refusal to transmit the official record of the proceeding before
it received payment for the cost of the record from the party
seeking judicial review. because the corporation never paid
any money toward the cost of preparing the record and the dis-
trict court had no record to review, we affirm the court’s order
upholding the Department’s decision. We further conclude that
the court correctly determined that it lacked subject matter
Jhk, INC. v. NebrASkA DePT. OF bANkING & FINANCe 	187
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jurisdiction over the cause of action for declaratory judgment
because the State of Nebraska did not waive its sovereign
immunity. Accordingly, we affirm.
bACkGrOUND
Jhk, Inc., doing business as Fast Money; Jim h. kyles, its
president; William Stephan, its cashier; and all other officers,
directors, employees, and agents thereof are the appellants
in this matter. (We will refer to the appellants collectively
as Jhk except as needed to distinguish the parties.) Jhk,
a Nebraska corporation, was licensed to conduct a business
under the Delayed Deposit Services Licensing Act, Neb. rev.
Stat. § 45-901 et seq. (reissue 2004 & Cum. Supp. 2006) (the
Act). The Department began investigating Jhk following a
customer complaint and ultimately discovered numerous trans-
actions by Jhk which violated the Act.
In October 2005, the Department issued an order to cease
and desist directed to Jhk, kyles, and other employees.
The Department ordered Jhk to immediately stop allowing
“‘rollovers,’” charging customers a fee to extend the date
for presentment of a check when the maximum fee allowed
by statute had already been charged, accepting checks as
repayment, refinancing or any other consolidation of a check
or checks, and falsifying documents in an effort to deceive
the Department.
In January 2006, Jhk and the Department entered into a
consent order. Pursuant to the order, Jhk paid certain costs
and customer reimbursements. Jhk also agreed to sell its busi-
ness, have the prospective new owner file an application for a
new license by January 17, and operate its business subject to
the provisions of the cease-and-desist order until a transfer of
ownership occurred or, if that was denied by the Department,
then either find another purchaser or cease operations. In
August, the Department issued to Jhk a provisional license to
extend the expiration date of its license until August 31. The
provisional license remained subject to the terms of the cease-
and-desist order. In November, the Department issued an order
to cease and desist requiring Jhk to cease operating a delayed
deposit services business without a license.
188 	17 NebrASkA APPeLLATe rePOrTS

On April 16, 2007, the Department issued its proposed find-
ings of fact, proposed conclusions of law, and recommended
order. It recommended that the November 2006 cease-and-
desist order be affirmed; that Jhk and kyles, jointly and sev-
erally, pay an administrative fine of $25,000; that Stephan pay
an administrative fine of $2,000; that kyles and Stephan be
prohibited from involvement with any delayed deposit services
business for 7 years and 2 years, respectively; and that Jhk
and kyles, jointly and severally, pay specified amounts for
the Department’s investigation costs, the costs of the hearing,
and the hearing officer’s fee. The director of the Department
adopted the proposed findings of fact, proposed conclusions of
law, and recommended order on April 18.
On May 17, 2007, Jhk filed a complaint, titled “Petition,”
alleging two causes of action. In Jhk’s first cause of action, it
sought review of the Department’s final decision in accordance
with the Administrative Procedure Act (APA). Jhk’s second
cause of action requested a declaratory judgment declaring
the Department’s decision to be of no force and effect. Jhk
alleged that the Department’s decision “resulted from the appli-
cation of one or more standards by the [Department] which
were in violation of the due process and equal protection pro-
visions of the constitutions of both the State of Nebraska, and
of the United States.” In the Department’s responsive pleading,
it raised sovereign immunity as an affirmative defense to the
declaratory judgment cause of action.
On June 20, 2007, the Department moved for an extension
of time in which to submit the official record. In a letter dated
June 26, 2007, counsel for the Department advised Jhk’s
counsel that under Neb. rev. Stat. § 84-917(4) (Cum. Supp.
2006), it was billing Jhk $8,387.62 as the reasonable direct
cost of preparing the official record. The Department enclosed
with the letter a bill from a reporting firm pertaining to the
cost of preparation of the verbatim record of the agency hear-
ing, which contained itemized charges totaling $12,699. The
bill included charges that were incurred for copying nearly
700 pages of the verbatim transcript and nearly 11,000 pages
of exhibits. The Department’s letter requested Jhk to pay for
half of the billing from the reporting firm, together with the
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Cite as 17 Neb. App. 186

expense of preparing the transcript of filings for 1,146 pages
of pleadings. The letter advised that payment should be remit-
ted within 10 days and that the Department would transmit the
official record to the court upon payment.
On July 5, 2007, the court granted the Department’s motion
for an extension of time to submit the official record. The
court’s order noted that Jhk did not oppose the motion and that
§ 84-917(4) expressly authorized the agency to require payment
or bond prior to the transmittal of the record. Accordingly, the
court extended the time to submit the record by 1 business day
after Jhk paid the cost of preparation of the official record.
On November 6, 2007, Jhk filed a motion for leave to file
the following motions out of time: a motion to expand the
schedule for submission of Jhk’s final brief and to expand
the time to submit the case for decision, a motion to review
the cost of the official record, and a motion to set a trial date
and to consolidate Jhk’s causes of action. each motion pro-
vided notice that the motion would be heard on November 9.
During the November 9 hearing, Jhk asserted that the cost
billed to prepare the record went “far beyond reasonable direct
costs.” The Department opposed Jhk’s motions and noted the
untimeliness of the motions. The court inquired whether Jhk
had tendered any money toward the payment of the cost of the
record, including the amount that it believed to be reasonable,
and Jhk’s counsel responded that Jhk had not tendered any
money. The court sustained the Department’s objections to the
motions as to not being timely filed. The court proceeded with
“the appeal hearing” and took judicial notice of the pleadings
upon the request of counsel for Jhk.
On November 14, 2007, the court entered an order affirm-
ing the Department’s decision. The court noted that as to the
first cause of action, it had no record to review. As to the sec-
ond cause of action, the court stated that it lacked jurisdiction
because the State had not waived its sovereign immunity.
Jhk timely appeals.
ASSIGNMeNTS OF errOr
Jhk alleges, consolidated and reordered, that the court
erred in (1) determining that the Department could withhold
190 	17 NebrASkA APPeLLATe rePOrTS

the official record absent payment by Jhk, (2) sustaining the
Department’s objections to each of Jhk’s motions, (3) deter-
mining that the Department’s decision should be affirmed, and
(4) determining that Jhk’s action for a declaratory judgment
should not be allowed to proceed to trial or that the Department
was immune from the action.
STANDArD OF reVIeW
[1,2] A judgment or final order rendered by a district court
in a judicial review pursuant to the APA may be reversed,
vacated, or modified by an appellate court for errors appear-
ing on the record. Goodyear Tire & Rubber Co. v. State, 275
Neb. 594, 748 N.W.2d 42 (2008). When reviewing an order
of a district court under the APA for errors appearing on the
record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Id.
[3] The disposition of procedural motions is left to the dis-
cretion of the trial court, and absent a showing of an abuse of
that discretion, an appellate court will affirm the trial court’s
rulings regarding such motions. See Commercial Fed. Sav. &
Loan Assn. v. Matt, 232 Neb. 26, 439 N.W.2d 463 (1989).
[4] A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act or
refrain from action, but the selected option results in a decision
which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition
through the judicial system. Liberty Dev. Corp. v. Metropolitan
Util. Dist., 276 Neb. 23, 751 N.W.2d 608 (2008).
[5] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court. See
Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247,
729 N.W.2d 55 (2007).
ANALYSIS
Withholding Record.
Jhk argues that the Department lacked authority to withhold
the official record from Jhk absent payment. We disagree.
Section 84-917(4) provides in relevant part:
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The agency shall charge the petitioner with the reasonable
direct cost or require the petitioner to pay the cost for pre-
paring the official record for transmittal to the court in all
cases except when the petitioner is not required to pay a
filing fee. The agency may require payment or bond prior
to the transmittal of the record.
As Jhk points out, the statute allows the Department to
require “payment or bond.” Jhk argues that at all material
times, it was licensed under § 45-901 et seq., and that “[a]s
such, it had provided a bond to [the Department] to insure its
performance.” brief for appellants at 15. The bond required by
§ 45-906(2) is “[a] surety bond . . . conditioned for the faith-
ful performance by the licensee of the duties and obligations
pertaining to the delayed deposit services business so licensed
and the prompt payment of any judgment recovered against the
licensee.” The bond required by § 45-906(2) is completely dif-
ferent from the bond contemplated by § 84-917(4), and the two
bonds serve different purposes. There is no dispute that Jhk
did not make any payment toward the cost for preparing the
official record or seek to have the Department or the district
court set an appropriate bond. because the statute mandates
that the Department charge Jhk with costs of preparing the
official record and allows the Department to require such pay-
ment prior to transmittal of the record, Jhk’s assignment of
error is without merit.
Motions.
Jhk alleges that the court erred in denying its motion for
leave to file three motions out of time and denying each of
the three motions it sought to file out of time: a motion to
set trial and consolidate the two causes of action, a motion to
review the cost of the official record, and a motion to expand
the schedule for submission of the final brief and the case.
Jhk argues that it was unfairly deprived of a substantial
right and a just result and that the Department did not show
any prejudice.
First, it appears that the court considered the causes of
action together, and on September 13, 2007, the court set the
appeal hearing for November 9. The court’s final order ruled
192 	17 NebrASkA APPeLLATe rePOrTS

on both causes of action. The court did not abuse its discretion
in denying Jhk’s motion to set trial and consolidate the causes
of action.
Second, the transcript shows that in a letter to Jhk’s
counsel dated June 26, 2007, the Department advised that it
was billing Jhk $8,387.62 as the reasonable direct cost of
preparing the official record. The Department included a bill
from the reporting firm showing charges totaling $12,699, of
which only half was included in the Department’s billing to
Jhk. Jhk took no action until filing the instant motions on
November 6, 3 days before the scheduled appeal hearing. We
find no abuse of discretion by the district court in sustaining
the Department’s objection to Jhk’s motion to review the cost
of the record as being untimely.
Finally, the court’s September 13, 2007, order provided that
Jhk’s initial brief should be filed no later than October 4 and
that its reply brief should be submitted no later than November
9. Jhk filed an initial brief but not a reply brief. because the
case was being submitted to the court on November 9 and Jhk
did not seek an extension of time until November 6, we find no
abuse of discretion by the court in denying the motion. Nor did
the court abuse its discretion in denying Jhk’s motion to file
each of the above motions out of time.
Affirming Department’s Decision.
[6] Jhk next argues that the court erred in affirming
the Department’s decision. Under § 84-917(5)(a), the dis-
trict court’s review is de novo on the record of the agency.
because the court had no record to review other than the plead-
ings, we find no error on the record in its affirmance of the
Department’s decision.
Dismissing Declaratory Judgment Action.
The district court concluded that it lacked jurisdiction to
consider Jhk’s cause of action for declaratory judgment
because the State had not waived sovereign immunity, and
the court cited to Perryman v. Nebraska Dept. of Corr. Servs.,
253 Neb. 66, 568 N.W.2d 241 (1997), disapproved on other
grounds, Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d
373 (1999).
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[7-9] The Nebraska Constitution provides that “[t]he state
may sue and be sued, and the Legislature shall provide by law
in what manner and in what courts suits shall be brought.”
Neb. Const. art. V, § 22. This provision permits the State to
lay its sovereignty aside and consent to be sued on such terms
and conditions as the Legislature may prescribe. Livengood v.
Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d 55
(2007). It is not self-executing, however, but instead requires
legislative action for waiver of the State’s sovereign immunity.
Id. Waiver of sovereign immunity will be found only where
stated by the most express language or by such overwhelming
implications from the text as will leave no room for any other
reasonable construction. Id.
[10] Jhk’s complaint stated that its “second cause of action
in [sic] brought pursuant to the Nebraska Declaratory Judgment
Act.” It alleged that the Department’s decision resulted from
the application of standards by the Department which were in
violation of the due process and equal protection provisions
of the state and federal Constitutions. Nebraska’s Uniform
Declaratory Judgments Act does not waive the State’s sov-
ereign immunity, and a plaintiff who seeks declaratory relief
against the State must find authorization for such remedy
outside the confines of the Uniform Declaratory Judgments
Act. Logan v. Department of Corr. Servs., 254 Neb. 646,
578 N.W.2d 44 (1998). Jhk’s second cause of action did
not allege that it was being brought under the APA; nor did
it cite to an independent statute under which the State has
waived sovereign immunity. See Northwall v. State, 263 Neb.
1, 637 N.W.2d 890 (2002). because the State did not waive
its immunity, the district court correctly determined that it
lacked subject matter jurisdiction over Jhk’s second cause
of action.
CONCLUSION
We conclude that the district court did not abuse its dis-
cretion in sustaining the Department’s objections to Jhk’s
untimely motions. We further conclude that the court did not
err in affirming the Department’s decision and that the court
correctly determined that it lacked jurisdiction over Jhk’s
194 	17 NebrASkA APPeLLATe rePOrTS

cause of action under the Uniform Declaratory Judgments Act
because the State did not waive its sovereign immunity.
A ffirmed .
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