Hurbenca v. Nebraska Dept. of Corr. Servs.

Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526, 62 N.W.
859 (1895).
It has been held that “[s]moke [damage] and water damage
to adjacent property are foreseeable consequences of a fire,
and plaintiff may recover for such damage[s] if he establishes
defendants’ breach of duty and proximate cause.” Cuevas
v. Quandt’s Foodservice Distributors, 6 A.D.3d 973, 974,
775 N.Y.S.2d 429, 430 (2004). See, also, Excelsior Ins. Co.
v. Auburn Local Development Corp., 294 A.D.2d 861, 741
N.Y.S.2d 632 (2002); Fontana Fabrics, Inc. v. Hodge, 187
A.D.2d 378, 589 N.Y.S.2d 488 (1992).
We conclude that reasonable minds could differ and that
more than one conclusion could be drawn as to whether the
damages relating to the demolition and loss of the Salvation
Army building were proximately caused by the Kyles’ and
Ewers’ negligence. Accordingly, entry of a directed verdict
was improper.
CONCLUSION
The district court erred in entering a directed verdict on the
issue of the Salvation Army’s damages relating to the demo
lition and loss of its building.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
vasile huRbenca , appellant, v. nebRaska
depaRtment of coRRectional seRvices
et al ., appellees.
773 N.W.2d 402
Filed September 22, 2009. 	No. A 08 1149.
1. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
2. Summary Judgment. Summary judgment is proper if the pleadings and admis
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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, the
court views the evidence in the light most favorable to the party against whom the
hUrbENCA v. NEbrASKA DEpT. OF COrr. SErvS. 	31
Cite as 18 Neb. App. 31
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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judgment was granted, and the court gives that party the benefit of all reasonable
inferences deducible from the evidence.
4. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
5. Statutes: Legislature: Intent. The components of a series or collection of
statutes pertaining to a certain subject matter which are in pari materia may be
conjunctively considered and construed to determine the intent of the Legislature,
so that different provisions of the act are consistent, harmonious, and sensible.
6. Administrative Law: Prisoners: Time: Wages. Neb. rev. Stat. §§ 83 183
and 83 183.01 (reissue 2008) do not require that an inmate be provided with
an 8 hour workday as a prerequisite to enforcement of the regulations of the
Department of Correctional Services regarding earnings.
Appeal from the District Court for Johnson County: daniel
e. bRyan, JR., Judge. Affirmed.
vasile hurbenca, pro se.
Jon bruning, Attorney General, and ryan C. Gilbride for
appellees.
iRwin, sieveRs, and cassel, Judges.
cassel, Judge.
INTrODUCTION
In granting a summary judgment in favor of the appellees,
the district court rejected the claim of vasile hurbenca, an
inmate, that he was wrongfully denied direct access to funds
he earned as an inmate. because Nebraska law does not require
that the appellees provide hurbenca with an 8 hour workday
as a prerequisite to enforcement of the prison’s regulations
regarding earnings, we affirm. See Neb. rev. Stat. §§ 83 183
and 83 183.01 (reissue 2008).
bACKGrOUND
On December 6, 2007, hurbenca filed a complaint for declar
atory relief in which he alleged that the appellees, the Nebraska
Department of Correctional Services (the Department) and
various individuals it employed—robert p. houston, Frank
X. hopkins, Fred britten, Kim beethe, and Matthew harris—
caused the wrongful withholding of hurbenca’s wages earned
during his confinement while employed by two private busi
nesses. hurbenca stated that he had been employed by these
32 	18 NEbrASKA AppELLATE rEpOrTS

entities from 1995 to 2001. hurbenca alleged that §§ 83 183
and 83 183.01 prohibited the Department from withholding
any amount from an inmate’s wages unless the inmate was
employed 8 hours a day, but that he had never worked 8 hours
a day. hurbenca further alleged that in 2007, he was wrong
fully denied access to funds that were withheld and placed in
a “‘private venture Savings Account,’” which he was informed
could be used only for family support.
On October 20, 2008, the district court heard the appellees’
motion for summary judgment. The appellees offered into
evidence an inmate work contract “for direct employment by
a private venture,” signed by hurbenca in 2000. The work con
tract stated as follows:
I also agree to the following:
1. Deductions will be held from my gross monthly
wages to be distributed in accordance with [§] 83 183.01
. . . as follows:
a. payroll deductions as required by law, which may
include, but are not limited to, state and federal income
taxes and social security assessments.
b. Cost for room and board at $1.50 per hour worked,
to the nearest one quarter hour.
c. required savings to be obtained by me upon release
or parole and/or family support distributions as authorized
by me.
d. Contributions to the victim’s Compensation Fund at
five percent . . . of gross wages.
Further, the appellees introduced into evidence an affidavit
from the Department’s controller, Inga L. hookstra, who is
responsible for inmate accounting. hookstra’s affidavit stated
that in consideration for employment with a private venture
operation, hurbenca had agreed to have a portion of his wages
withheld and placed in a “private venture savings account,”
as opposed to an inmate institutional account. hookstra’s affi
davit also stated that the Department’s regulations provided
for funds from a private venture savings account to be sent
to immediate family members, but not to an inmate institu
tional account, as hurbenca had requested. hookstra’s affi
davit averred that hurbenca would receive the funds from his
hUrbENCA v. NEbrASKA DEpT. OF COrr. SErvS. 	33
Cite as 18 Neb. App. 31

private venture savings account upon his release from prison
or when he received parole. The appellees also offered into
evidence inmate accounting regulations, which show that the
account in which hurbenca could deposit his earnings from his
job, a private venture savings account, permitted only “[t]wo
withdrawals per calendar month . . . to send funds for family
support” and did not permit withdrawals for any other purpose.
hurbenca’s evidence consisted of a statement of his private
venture savings account and a statement of his release sav
ings account.
On October 27, 2008, the court granted the appellees’ motion
for summary judgment. The district court found that § 83 183
“does not mandate an eight hour work day before statu
tory [wage] deductions are allowed” and that the Department
had not violated hurbenca’s statutory rights regarding wage
withholding.
hurbenca timely appeals. pursuant to authority granted to
this court under Neb. Ct. r. App. p. § 2 111(b)(1), this case
was ordered submitted without oral argument.
ASSIGNMENTS OF ErrOr
hurbenca alleges, as reordered and restated, that the district
court erred in (1) making its findings of fact, (2) determin
ing that the appellees have not violated his statutory rights
regarding wage withholding, (3) finding that § 83 183 does
not impose an 8 hour workday requirement before statutory
deductions may be taken from an inmate’s pay, (4) granting
the appellees’ motion for summary judgment, and (5) applying
the language of Neb. rev. Stat. § 81 1826 (reissue 2008) to
the issue of wage withholding.
[1] hurbenca also argues but does not assign as error that
the court failed to correctly apply Neb. rev. Stat. § 25 1333
(reissue 2008), which specifies certain findings that the court
is to make where summary judgment is not rendered upon
the whole case, or for all the relief requested, and a trial is
necessary. Errors argued but not assigned will not be consid
ered on appeal. Vokal v. Nebraska Acct. & Disclosure Comm.,
276 Neb. 988, 759 N.W.2d 75 (2009). We do not address
this matter.
34 	18 NEbrASKA AppELLATE rEpOrTS

STANDArD OF rEvIEW
[2,3] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts 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. Jardine
v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009). In reviewing
a summary judgment, we view the evidence in the light most
favorable to the party against whom the judgment was granted,
and we give that party the benefit of all reasonable inferences
deducible from the evidence. Id.
[4] Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
Metropolitan Comm. College Area v. City of Omaha, 277 Neb.
782, 765 N.W.2d 440 (2009).
ANALYSIS
before turning to the primary question of statutory interpre
tation posed by this appeal, we first dispose of an assignment
of error requiring little discussion.
District Court’s Findings of Fact.
hurbenca assigns that the district court erred in making its
findings of fact. because we review the record itself and not
the district court’s factual findings in reviewing a motion for
summary judgment, see Jardine v. McVey, supra, we need not
address this assignment of error.
§§ 83-183 and 83-183.01.
hurbenca’s primary argument is that he cannot be subjected
to regulations implemented by the Department which prohibit
him from withdrawing his funds for personal use.
Section 83 183.01 sets forth the persons subject to the
Department’s regulations, sets forth reasons for which deduc
tions may be taken, and provides as follows in this regard:
A person committed to the department, who is earn
ing at least minimum wage and is employed pursuant
to sections 81 1827 and 83 183, shall have his or her
wages set aside by the chief executive officer of the facil
ity in a separate wage fund. The director shall adopt and
hUrbENCA v. NEbrASKA DEpT. OF COrr. SErvS. 	35
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promulgate rules and regulations which will protect the
inmate’s rights to due process, provide for hearing as nec
essary before the Crime victim’s reparations Committee,
and govern the disposition of a confined person’s gross
monthly wage minus required payroll deductions and pay
ment of necessary work related incidental expenses for
the following purposes:
(1) For the support of families and dependent relatives
of the respective inmates;
(2) For the discharge of any legal obligations, including
judgments for restitution;
(3) To pay all or a part of the cost of their board,
room, clothing, medical, dental, and other correctional
services;
(4) To provide for funds payable to the person commit
ted to the department upon his or her release;
(5) For the actual value of state property intentionally
or willfully and wantonly destroyed by such person dur
ing his or her commitment;
(6) For reasonable costs incurred in returning such per
son to the facility to which he or she is committed in the
event of escape; and
(7) For deposit in the victim’s Compensation Fund.
This section contains no requirement that the Department make
such funds available for the personal spending of an incar
cerated person during the term of incarceration. Conversely,
where this section does not apply, wages are set aside “in a
separate fund” which “shall enable such person committed to
the department to . . . make necessary purchases from the com
missary,” among other things. § 83 183(3). Section 83 183.01
contains no such requirement. Thus, if hurbenca earned at
least minimum wage and was employed pursuant to § 83 183
and Neb. rev. Stat. § 81 1827 (reissue 2008), the Department
could enforce regulations restricting hurbenca’s access to the
money he earned.
hurbenca argues only that the Department’s regulations,
which restricted his access to his private venture earnings, do
not apply, because he was not employed pursuant to § 83 183.
hurbenca insists that § 83 183 requires that the Department
36 	18 NEbrASKA AppELLATE rEpOrTS

provide him with 8 hours of work per day, which he did not
receive. Although there is no evidence in the record as to
whether hurbenca worked an 8 hour day, for purposes of our
analysis, we will assume that he did not do so.
In pertinent part, § 83 183 provides:
(1) To establish good habits of work and responsibil
ity, to foster vocational training, and to reduce the cost of
operating the facilities, persons committed to the depart
ment shall be employed, eight hours per day, so far as
possible in constructive and diversified activities in the
production of goods, services, and foodstuffs to maintain
the facilities, for state use, and for other purposes autho
rized by law.
hurbenca argues that the phrase “so far as possible” modi
fies only the activities listed afterward, and not the phrase
“eight hours per day,” and thus, that the “eight hours” language
is mandatory. If we analyzed this particular subsection on its
own, hurbenca’s assertion may have some merit because the
phrase “so far as possible” was in the statute prior to when the
language regarding 8 hours was added. The original version
of the statute was materially identical to the portion quoted,
except that the phrase “eight hours per day” was not in the
original statute. See 1969 Neb. Laws, ch. 817, § 14, p. 3080.
Thus, it is not apparent from the quoted language whether, in
adding the “eight hours” language, the Legislature intended to
also have it be modified by the phrase “so far as possible.”
[5] however, when we conjunctively consider and construe
the provisions of the legislative act that first adopted the “eight
hours” language, it is clear that the Legislature did not intend
to mandate that the Department provide prisoners with 8 hours
per day of employment. The components of a series or collec
tion of statutes pertaining to a certain subject matter which are
in pari materia may be conjunctively considered and construed
to determine the intent of the Legislature, so that different
provisions of the act are consistent, harmonious, and sensible.
Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754
N.W.2d 730 (2008). The Legislature first added the “eight
hours per day” language in 1980 Neb. Laws, L.b. 319, from
which we note two important points.
hUrbENCA v. NEbrASKA DEpT. OF COrr. SErvS. 	37
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First, the Legislature did not revise § 83 183(2) which, at
that time, provided that “[t]he Director of Correctional Services
shall make rules and regulations governing the hours, condi
tions of labor, and the rates of compensation of persons com
mitted to the department.” See 1980 Neb. Laws, L.b. 319. At
present, the director still has such authority. See § 83 183(2).
because the Legislature left intact the director’s ability to
regulate the “hours,” it would be inconsistent to read the “eight
hours” language as specifically mandating 8 hours per day.
Second, in L.b. 319, the Legislature added language to
other sections regarding an 8 hour workday, but imposed no
requirement that the Department provide an 8 hour workday.
For example, § 3 of the legislative act revised Neb. rev. Stat.
§ 81 1826 (Cum. Supp. 1978) as follows, in pertinent part:
“The Department of Correctional Services shall, as far as pos
sible, provide for the employment, eight hours per day, of con
fined persons by private businesses . . . .” (Underscored words
represent language added by L.b. 319.) The plain language
of this revision indicates that the Department was to provide
inmates with full time employment to the greatest extent pos
sible—not that they had to be provided with full time work. It
would be incongruous to hold that the addition of the “eight
hours” language to § 83 183(1) was intended to establish a
mandate where another section of the same legislative act
clearly stated that such employment was to be provided “as far
as possible.” It would be even more strained to do so where the
sentence of § 83 183(1) amended by the act already included
the similar words “so far as possible.”
In addition, § 5 of L.b. 319, which revised Neb. rev. Stat.
§ 81 1829 (Cum. Supp. 1978) to its current form, stated that
“[t]he Department of Correctional Services shall may establish
and maintain farms to provide food for the institutions under
the jurisdiction of the department and also to provide oppor
tunity for all inmates to work eight hours per day.” (Strikeouts
and underscoring delineate language respectively deleted and
added by the act.) In this section, the language about provid
ing the inmates with 8 hours of work per day is stated as a
purpose of the provision of farming opportunities—not as a
requirement. The fact that the Legislature left control of the
38 	18 NEbrASKA AppELLATE rEpOrTS

hours which the inmates worked to the Department’s director,
along with the fact that the other portions of L.b. 319 which
referred to 8 hours of work did not make it mandatory, leads us
to the conclusion that § 83 183 does not require that an inmate
work 8 hours a day. Thus, in the context of § 83 183, the “eight
hours” language does not serve to preempt the Department
from enforcing its regulations where the inmate failed to work
8 hours per day.
In 	the 	interest 	of 	completeness, 	we 	also 	examine 	the
Legislative history of L.b. 319. The legislative record provides
no specific indication of what was intended by the “eight hours
per day” language. however, the entirety of the legislative his
tory shows that in passing this bill, the Legislature had two
overarching concerns: (1) that inmates have the opportunity to
participate in productive work for purposes of rehabilitation
and (2) that inmates not be unfairly disadvantaged. A recom
mended 8 hour workday balances these concerns. however, a
rigid rule requiring inmates to work an 8 hour workday could
be unfair in light of these concerns. First, not all inmates may
be capable of working 8 hours. Second, if work opportunities
were scarce and an 8 hour workday was deemed mandatory,
the Department would not have the option of spreading the
available work among the inmate population to equitably pro
vide at least some opportunity to as many inmates as possible.
Under this rigid, mandatory interpretation, the Department
could not accomplish the Legislature’s intended goal of pro
viding all inmates with the opportunity to work for rehabilita
tive purposes.
[6] We hold that §§ 83 183 and 83 183.01 do not require
that an inmate be provided with an 8 hour workday as a prereq
uisite to enforcement of the Department’s regulations regard
ing earnings. We need not address whether the “eight hours”
language imposes any requirement on the Department to make
efforts to ensure that all inmates have the opportunity to work
8 hours per day. because hurbenca adduced no evidence that
the Department could have provided but did not provide him
the opportunity to work 8 hours a day, there is no remaining
question of fact as to whether the requirements of § 83 183
were fulfilled.
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Cite as 18 Neb. App. 31

Finally, there is no factual dispute as to the effect of the
regulations promulgated pursuant to the Department’s authority
under § 83 183.01. The Department promulgated regulations
pursuant to its authority under § 83 183.01, and the regula
tions restricted hurbenca’s access to his private venture savings
account. hookstra’s affidavit averred that this was the case and
that the regulations which governed hurbenca’s private venture
savings account permitted withdrawals during imprisonment
only for the purpose of providing family support. hurbenca
did not adduce any evidence to the contrary. because hurbenca
asserted only that the regulations conflicted with §§ 83 183 and
83 183.01 and did not otherwise challenge the Department’s
regulations, no further discussion is necessary.
§ 81-1826.
Finally, we dispose of hurbenca’s assignment that the dis
trict court erred in applying § 81 1826 (reissue 2008) to
the issue of wage withholding. Although § 81 1826 does not
directly control the issue, it is in pari materia with the other
statutes governing the employment of incarcerated persons
and was amended by the same legislative act that added the
“eight hours” language to § 83 183(1). Therefore, § 81 1826
may be used as we have done—to help discern the meaning
of the other related statutes governing the same subject matter.
See Steffen v. Progressive Northern Ins. Co., 276 Neb. 378,
754 N.W.2d 730 (2008). It appears that this is what the district
court did, and it did not err in so doing.
CONCLUSION
because §§ 83 183 and 83 183.01 do not impose an 8
hour workday as a prerequisite to the applicability of the
Department’s regulations governing the allocation of an inmate’s
private venture earnings, the Department’s regulations restrict
ing hurbenca’s access to his private venture earnings were not
thereby inconsistent with statutory law. because there was no
genuine issue of material fact that the regulations prohibited
hurbenca from transferring such funds deposited in a private
venture savings account into his inmate institutional account,
we affirm the district court’s judgment.
affiRmed.
40 	18 NEbrASKA AppELLATE rEpOrTS