Gilbert & Martha Hitchcock Found. v. Kountze

978 	275 NeBrASKA reporTS
The district court’s dismissal of the Woodens’ appeal for lack
of service of process was erroneous.
CoNCLUSIoN
The Court of Appeals erred in concluding that the district
court lacked jurisdiction over the Woodens’ appeal. We therefore
reverse the decision of the Court of Appeals and remand the
cause to that court with instructions to remand the cause to the
district court for reinstatement of the Woodens’ appeal.
reversed ANd remANded .
wrighT, J., not participating.
gilberT m. ANd mArThA h. hiTchcock fouNdATioN,
A N ebrAskA NoNprofiT corporATioN, eT Al ., Appellees ANd
cross -AppellANTs , v . deNmAN kouNTze , J r ., Appellee ,
edwArd h. kouNTze , AppellANT ANd cross -Appellee ,
ANd chArles deNmAN kouNTze , Appellee .
751 N.W.2d 129
Filed June 27, 2008. 	No. S-07-286.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
2. Actions: Corporations: Notice. Notice to the Attorney general as an interested
party is an essential prerequisite to proceeding in an action under the Nebraska
Nonprofit Corporation Act, Neb. rev. Stat. §§ 21-1901 to 21-19,177 (reissue 1997
& Cum. Supp. 2006).
Appeal from the District Court for Douglas County: JAmes T.
gleAsoN, Judge. Affirmed.
David A. Domina and Claudia L. Stringfield-Johnson, of
Domina Law group, p.C., L.L.o., and David J. Lanphier, of
Broom, Johnson, Clarkson & Lanphier, for appellant.
edward D. Hotz and Michael r. peterson, of Hotz, Weaver,
Flood, Breitkreutz & grant, for appellees gilbert M. and Martha
H. Hitchcock Foundation et al.
heAvicAN, 	C.J., 	wrighT, 	coNNolly, 	gerrArd, 	sTephAN,
mccormAck, and miller -lermAN, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

mccormAck, J.
NATUre oF CASe
This is an appeal after remand in which all the issues pre-
sented are procedural and jurisdictional. The underlying findings
of fact and conclusions of law are not disputed.
A derivative action was brought by several trustees of a pub-
lic benefit corporation against three fellow trustees: Denman
Kountze, Jr., edward H. Kountze, and Charles Denman Kountze.
In Gilbert & Martha Hitchcock Found. v. Kountze1 (Hitchcock I),
we reversed the district court’s judgment on the plaintiffs’ claims
and the defendants’ counterclaims and remanded the cause,
holding that the court had erred in proceeding to trial without
sufficient evidence that the Attorney general was notified of
the action and had an adequate opportunity to intervene on
behalf of the public, as mandated by the Nebraska Nonprofit
Corporation Act.2
Upon remand, the district court ordered that the plaintiffs
serve notice upon the Attorney general of the prior proceed-
ings and provide proof of service of such notice. The Attorney
general, upon receiving notice, informed the court that its office
did not wish to intervene. The court eventually granted the plain-
tiffs’ motion to reenter the court’s original findings of fact and
conclusions of law, except those rendered moot by the interven-
ing death of Denman. edward appeals.
BACKgroUND
The plaintiffs are members of the board of trustees of the
gilbert M. and Martha H. Hitchcock Foundation (the Foundation).
Under the bylaws of the Foundation, the presence of at least
one of several specified linear descendants of the founders
was required to constitute a quorum. of the specified descen-
dants, Denman was the only one still living during the events
underlying this litigation. The plaintiffs’ complaint alleged that
Denman, edward, and Charles had consistently failed or refused
1 Gilbert & Martha Hitchcock Found. v. Kountze, 272 Neb. 251, 720 N.W.2d
31 (2006).
2 Neb. rev. Stat. §§ 21-1901 to 21-19,177 (reissue 1997 & Cum. Supp.
2006).
gILBerT & MArTHA HITCHCoCK FoUND. v. KoUNTze 	979
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980 	275 NeBrASKA reporTS
to participate in board meetings since September 2002. The
plaintiffs sought declaratory judgment as to various actions in
the preceding year, a court-ordered meeting of the Foundation
to dispense with the quorum requirement, an injunction prevent-
ing the defendants from attempting to conduct further business
with the Foundation, removal of the defendants from the board,
and damages resulting from an alleged civil conspiracy by the
defendants. The defendants filed a counterclaim, similarly chal-
lenging various actions of the plaintiffs, seeking removal of
several of the plaintiffs as trustees for alleged fraudulent and
dishonest conduct, and injunctive relief from future action in
contravention of the bylaws.
After a bench trial, the district court found that the record
was devoid of any proof of notice to the Attorney general, but
it concluded that such lack of notice was not a jurisdictional
defect and it could proceed with judgment. The court entered an
order ruling on the validity of the various acts disputed by the
parties, some favorably to the plaintiffs and others favorably to
the defendants. It then removed edward as trustee after finding
his actions constituted a gross abuse of authority, but denied the
plaintiffs’ request to remove Charles. The court acceded to the
plaintiffs’ decision that it would not be in the Foundation’s best
interests to remove Denman. It ordered the bylaws amended so
that the presence of no particular individual was necessary to
constitute a quorum. The district court found no actionable civil
conspiracies by any of the parties.
The defendants appealed. of the 19 assignments of error
made by the defendants, the only one reached by this court in
Hitchcock I dealt with the failure to notify the Attorney general
of the claim. We held that the statutory notice was “an essen-
tial prerequisite to proceeding in any action involving a public
benefit corporation for which such notice is required”3 and
that it was the plaintiffs’ burden to present evidence, as out-
lined by § 21-1915, that the notice had been effectively given.
Despite the plaintiffs’ contentions on appeal that evidence was
presented as to the required notice, we noted that the district
3 Gilbert & Martha Hitchcock Found. v. Kountze, supra note 1, 272 Neb. at
260, 720 N.W.2d at 38.

court had specifically found the evidence of notice lacking. The
plaintiffs had failed to cross-appeal this finding, and thus, we
explained that the plaintiffs had failed to preserve any complaint
with respect to the district court’s reasoning. We reversed and
remanded the cause for further proceedings consistent with
our opinion.
After remand, edward argued to the district court that our
opinion in Hitchcock I mandated only a limited inquiry into
whether the Attorney general had been properly notified within
10 days of the plaintiffs’ original complaint. edward argued that
this was the plaintiffs’ only opportunity to perfect “springing”
subject matter jurisdiction. According to edward, if the plaintiffs
had failed to give proper notice to the Attorney general at that
time, then there was no way to remedy the court’s lack of juris-
diction and the court was required to vacate its prior judgment.
The district court disagreed. The court read Hitchcock I as
foreclosing further inquiry into whether the original notice had
actually been sent, and it refused to admit further evidence
presented by the plaintiffs on this point. Instead, over edward’s
objection, the court ordered the plaintiffs to send a new notice to
the Attorney general. The court contemplated at that time that a
new trial would then proceed after proof of service on the issues
previously joined by the parties.
The plaintiffs sent notice to the Attorney general and provided
the court with proof of service. The notice included copies of
the operative pleadings and relevant court orders. The Attorney
general responded by letter, advising the court that its office did
not wish to intervene. The Attorney general explained that after
reviewing a voluminous record of pleadings, orders, hearing
transcripts, and exhibits, and after meeting with “both sides,” its
office had concluded that “able counsel for the parties and the
Court can provide sufficient protection to the public interest.”
The Attorney general explained that this was not the type of
case contemplated by the notice requirements of the Nebraska
Nonprofit Corporation Act, where the participants were without
a sufficient economic interest to ensure oversight.
A hearing was held before the district court in which the
Attorney general’s office again stated its intention not to inter-
vene. At the hearing, Charles made an oral motion to dismiss
gILBerT & MArTHA HITCHCoCK FoUND. v. KoUNTze 	981
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982 	275 NeBrASKA reporTS
his counterclaims. No objection to this motion is found in
the record. The court granted the motion to dismiss Charles’
counterclaims; however, it explained that it was not dismissing
Charles as a defendant to the action.
edward did not move at that time for dismissal of his coun-
terclaims, but later filed a “Dismissal of Counterclaims,” stating:
“edward . . . dismisses his counterclaims without prejudice. No
leave of court to do so is required as the court never acquired
subject matter jurisdiction of this action as was determined by
the Nebraska Supreme Court.” edward also filed a motion to
dismiss all of the plaintiffs’ claims, with prejudice, for lack of
subject matter jurisdiction. The plaintiffs objected to edward’s
“Dismissal of Counterclaims” on the grounds that edward had
recently filed the same claims against them in federal court and
that a dismissal of counterclaims would subject the plaintiffs
to inconsistent judgments involving the same subject matter in
different courts. The plaintiffs asserted that their claims against
edward should not be dismissed, because the new notice to
the Attorney general was sufficient for the court to proceed
with judgment.
once it was clear that the Attorney general would not inter-
vene, the plaintiffs argued that a new trial was not necessary and
asked the court to simply reenter its pre-Hitchcock I findings of
fact and conclusions of law, except those rendered moot by the
death of Denman. edward orally objected to this motion. edward
argued that it was essentially a “rule 12” motion, “tantamount to
a motion for summary judgment,” and that he should be entitled
to “put on evidence about it.” The discussion on edward’s objec-
tion quickly devolved again, however, into the issue of whether
the district court could have subject matter jurisdiction.
The court ultimately denied edward’s motion to dismiss the
plaintiffs’ claims, and no ruling appears on the record regard-
ing edward’s “Dismissal of Counterclaims.” The court granted
the plaintiffs’ motion to reenter its previous findings of fact and
conclusions of law, and edward appeals.
ASSIgNMeNTS oF error
edward’s assignments of error, consisting of subparts and
paragraphs of argument, do not comply with the mandate of

Neb. Ct. r. of prac. 9D(1)e (rev. 2006) that they each be “[a]
separate, concise statement of each error.” Summarized, they are
(1) that the district court lacked subject matter jurisdiction to
render judgment; (2) that it was improper for the court to reenter
its prior findings of fact and conclusions of law without giving
the parties the opportunity for a new trial; and (3) that the court
abused its discretion in failing to allow edward to dismiss his
counterclaims, when the court had granted Charles’ motion to
dismiss his similar counterclaims.
The plaintiffs cross-appeal, assigning as error the court’s
refusal to consider evidence that they had indeed sent proper
notice to the Attorney general within 10 days of their origi-
nal complaint.
STANDArD oF reVIeW
[1] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision.4
ANALYSIS
edward first contends that because the plaintiffs did not file
within 10 days from the time of the original complaint, the pro-
ceedings were marred by a jurisdictional defect that could not
be remedied by a late notice after remand. According to edward,
we only remanded the cause for further proceedings in order
to determine the narrow question of whether the plaintiffs had
given the Attorney general notice within 10 days.
edward misconstrues our mandate in Hitchcock I. In that
opinion, we specifically held that the issue of whether the plain-
tiffs had given the Attorney general notice within 10 days from
the time of commencing the proceedings was foreclosed from
further consideration. That fact had been conclusively deter-
mined after the plaintiffs failed to appeal the district court’s
specific determination that no notice had been given.
[2] The district court correctly reasoned that we would not
have, therefore, remanded the cause for further proceedings if
we thought that it contained a jurisdictional defect that could
4 See Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).
gILBerT & MArTHA HITCHCoCK FoUND. v. KoUNTze 	983
Cite as 275 Neb. 978

984 	275 NeBrASKA reporTS
not be remedied. We explained in Hitchcock I that the notice
to the Attorney general as an interested party was an “essen-
tial prerequisite to proceeding” in an action involving a public
benefit corporation.5 otherwise, the requirements of §§ 21-1949
and 21-1977 “would be meaningless” because “[t]here would
be no consequence for a party’s failure to meet the statutory
requirement.”6 We accordingly concluded that “the district court
erred in proceeding to trial without sufficient evidence that the
Attorney general was notified of this action and had an adequate
opportunity to intervene on behalf of the public.”7
In doing so, we plainly rejected edward’s jurisdictional argu-
ment. The clear implication of our opinion was that, upon
remand, the plaintiffs could provide the prerequisite notice to
the Attorney general and the district court could proceed with
the action once such notice was given. The plaintiffs did, in fact,
notify the Attorney general of the action after we remanded the
cause back to the district court, and we find no jurisdictional
defect in the judgment currently before us.
edward next asserts that the district court lacked authority
to simply reenter its pre-Hitchcock I findings of fact and con-
clusions of law. In large part, this argument is dependent upon
edward’s belief that the district court lacked subject matter juris-
diction and could not reenter a “vacated” judgment. As already
discussed, the district court did not lack subject matter jurisdic-
tion, and we did not “vacate” its previous judgment.
But edward also argues that even if the district court had
subject matter jurisdiction, it was impermissible for the court to
issue judgment on the old record without giving the parties an
opportunity to amend their pleadings and put on new evidence.
edward asserts that the adoption of its former judgment was
simply a “concocted” procedure by the court.8 edward alleges
that the rules of evidence were not complied with, no notice
of trial was given, and summary judgment procedures were not
5 Gilbert & Martha Hitchcock Found. v. Kountze, supra note 1, 272 Neb. at
260, 720 N.W.2d at 38 (emphasis supplied).
6 Id.
7 Id. at 262, 720 N.W.2d at 39.
8 Brief for appellant at 27.

followed. edward asserts that he was prejudiced by the court’s
procedure because he was thus unable to present evidence and
issues relating to the 3 years intervening between the district
court’s first order and its readoption of that order. In particular,
he alleges that the court’s procedure prohibited him from rais-
ing allegations that the plaintiffs had abused and dissipated the
Foundation’s funds while Hitchcock I was pending.
on remand, edward’s only objection to the procedure, as
such, of adopting the former judgment was that it was akin to
a motion for summary judgment and that edward should be
allowed to “put on evidence about it.” edward did not ask for
permission to amend the pleadings. Nor did he make reference
to further events in the interim period that he thought necessary
to add to the record.
We conclude that the district court’s procedure was not, as
edward contends, essentially a motion for summary judgment. It
is, in fact, not uncommon for a court to “readopt” its prior judg-
ment on the previous record, where the only defect in the judg-
ment was that proper notice to an interested party had not been
given, but such party was later notified and waived participation
in the proceedings.9
We question whether much of edward’s current argument
against the district court’s procedure was properly raised before
that court. But, in any event, we find no merit to it. The defec-
tive notice did not operate to open the door for new claims by
edward discovered in the interim of the appeal, and he has not
been prejudiced by his inability to do so.
Finally, we consider edward’s argument that the district court
abused its discretion in failing to allow edward to dismiss his
counterclaims. We can find no abuse of discretion in the court’s
failure to grant a motion that was never made. While edward
titled his motion a “Dismissal of Counterclaims,” the motion
clearly did not ask the court for any ruling. Instead, edward
stated that he was dismissing his own counterclaim and that
“[n]o leave of court to do so is required . . . .” Moreover, the
motion was specifically tied to edward’s belief that the “court
9 See, e.g., Welfare of M.S.S., 86 Wash. App. 127, 936 p.2d 36 (1997);
Y. W. C. A. of Camden v. Murrelle, 141 N.J. eq. 229, 56 A.2d 738 (1948).
gILBerT & MArTHA HITCHCoCK FoUND. v. KoUNTze 	985
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986 	275 NeBrASKA reporTS
never acquired subject matter jurisdiction,” and we have already
found this contention to be without merit.
CoNCLUSIoN
We find no merit to edward’s assignments of error in the cur-
rent appeal, and we affirm the judgment. Having done so, we
need not consider the plaintiffs’ cross-appeal.
A ffirmed .
ANdersoN excAvATiNg co ., AppellANT, v .
beverly N eTh , direcTor , depArTmeNT
of moTor vehicles , sTATe of
N ebrAskA, Appellee .
751 N.W.2d 595
Filed June 27, 2008. 	No. S-07-539.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review under the Administrative procedure
Act may be reversed, vacated, or modified by an appellate court for errors appear-
ing on the record.
2. ____: ____: ____. When reviewing a district court’s order under the Administrative
procedure Act for errors appearing on the record, the inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is neither arbi-
trary, capricious, nor unreasonable.
3. Administrative Law: Statutes: Appeal and Error. The meaning and interpreta-
tion of statutes and regulations are questions of law for which an appellate court
has an obligation to reach an independent conclusion irrespective of the decision
made by the court below.
Appeal from the District Court for Lancaster County: J effre
cheuvroNT, Judge. Affirmed.
Timothy L. Moll and Sara S. pillen, of rembolt Ludtke,
L.L.p., for appellant.
Jon 	Bruning, Attorney 	general, 	and 	L. 	Jay 	Bartel 	for
appellee.
wrighT, coNNolly, gerrArd, sTephAN, and miller -lermAN,
JJ.