Bocanegra v. Gonzalez

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
Yessica Nicol Dawnna Bocanegra, appellant, v.
Alfonso Rosales Gonzalez and Ema Gonzalez,
appellees, and Viking Insurance Company of
Wisconsin, garnishee-appellee.
___ N.W.3d ___
Filed July 10, 2026. 	No. S-24-920.
1. Garnishment: Appeal and Error. Garnishment is a legal proceeding.
To the extent factual issues are involved, the findings of the fact finder
will not be set aside on appeal unless clearly wrong; however, to the
extent issues of law are presented, an appellate court has an obligation to
reach independent conclusions irrespective of the determinations made
by the court below.
2. Jurisdiction. Subject matter jurisdiction is a question of law.
3. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
5. ____: ____. An appellate court must consider whether the court from
which the appeal was taken had jurisdiction, because if it did not, then
the appellate court acquires no jurisdiction.
6. Jurisdiction. Questions regarding a court’s subject matter jurisdic-
tion must be resolved as a threshold matter before an examination of
the merits.
7. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
8. Jurisdiction. The question of a court’s subject matter jurisdiction does
not turn solely on the court’s authority to hear a certain class of cases.
It also involves determining whether a court has authority to address a
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
particular question that it assumes to decide or to grant the particular
relief requested.
9. Standing: Jurisdiction: Parties. The requirement of standing is fun-
damental to a court’s exercise of subject matter jurisdiction, and only a
party who has standing may invoke the jurisdiction of a court.
10. Judgments: Debtors and Creditors: Garnishment. Garnishment in
aid of execution is a method by which a judgment creditor can recover
against a third party for the debt owed by a judgment debtor.
11. ____: ____: ____. Garnishment in aid of execution is, in effect, an action
by a judgment debtor in the garnishor’s name against the garnishee.
12. Garnishment: Liability: Service of Process: Time. A garnishee’s
liability is to be determined as of the time the garnishment summons
is served.
13. Judgments: Debtors and Creditors: Garnishment: Liability: Proof.
In an action to determine the liability of the garnishee, the judgment
creditor has the burden to establish that the garnishee was liable to the
judgment debtor at the time notice of garnishment was served.
14. Judgments: Debtors and Creditors: Garnishment. As a general prin-
ciple, the claim of a judgment creditor against a garnishee can rise no
higher than the claim of the judgment debtor against the garnishee.
15. Judgments: Debtors and Creditors: Garnishment: Subrogation. A
garnishor is subrogated to the rights of the judgment debtor and can
recover only by the same right and to the same extent that the judgment
debtor might recover from the garnishee.
16. Judgments: Garnishment: Liability: Service of Process: Time. When
determining the liability of a garnishee, the test is whether, at the time
the summons in garnishment was served, the facts would support a
recovery by the judgment debtor against the garnishee.
17. Garnishment. Garnishment is a legal, not equitable, remedy unknown
at common law and is a purely statutory remedy.
18. Garnishment: Statutes: Legislature. Because garnishment is a crea-
ture of statute, garnishment proceedings are necessarily governed by
statutory provisions and specifications. Courts may not allow garnish-
ment proceedings to follow any course other than that charted by the
Legislature.
19. Insurance: Contracts: Reformation: Equity. Reformation of an insur-
ance policy is an equitable remedy.
20. Actions: Reformation. As a general rule, reformation of written instru-
ments may be had by the immediate parties thereto and by those stand-
ing in privity with them, but a person not a party or privy to the transac-
tion may not maintain the action.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
21. Insurance: Tort-feasors: Liability: Actions. Nebraska recognizes the
general rule that there is no privity between an injured person and
the tort-feasor’s liability insurer. For this reason, Nebraska does not per-
mit an injured person to bring direct actions against the tort-feasor’s lia-
bility insurer.
22. Rules of the Supreme Court: Appeal and Error. A party wishing to
secure appellate review of a cross-appeal must comply with the appel-
late briefing rules.
23. ____: ____. When a brief of an appellee fails to present a cross-appeal
that conforms to the requirements of Neb. Ct. R. App. P. § 2-109(D)
(rev. 2025), an appellate court can decline to consider the cross-appeal
or may elect to review the proceedings for plain error.
Appeal 	from 	the 	District 	Court 	for 	Hamilton 	County:
Rachel A. Daugherty, Judge. Affirmed in part, and in part
vacated and set aside.
John C. Fowles, of The Fowles Law Office, P.C., L.L.O., for
appellant.
Matthew D. Hammes and Maggie E. Frei, of Locher Pavelka
Dostal Braddy & Hammes, L.L.C., for garnishee-appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, JJ., and Post, District Judge.
Per Curiam.
After being awarded a judgment for over $1 million for
injuries sustained in an automobile accident, the plaintiff
commenced garnishment proceedings against the defendant’s
purported liability insurer. The insurer denied garnishee liabil-
ity and attached a copy of a declaratory judgment holding
that its policy did not afford coverage to the defendant for
the accident. The plaintiff filed an application to determine
garnishee liability, alleging she was not bound by the declara-
tory judgment action. The garnishment court agreed and, over
the insurer’s objection, permitted the plaintiff to litigate the
availability of coverage during the trial to determine garnishee
liability. Ultimately, the garnishment court determined that the

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
policy did not afford liability coverage to the defendant, and
it denied the plaintiff’s request to reform the policy to provide
such coverage. The court entered a judgment discharging the
garnishee from liability.
The plaintiff appeals, challenging only the garnishment
court’s denial of her request to reform the policy. For reasons
we will explain, we conclude the garnishment court lacked
jurisdiction to consider the merits of the plaintiff’s request to
reform the policy, so we vacate that portion of the judgment
and otherwise affirm the judgment of discharge.
I. BACKGROUND
1. Negligence Action in Hamilton County
In 2021, Yessica Nicol Dawnna Bocanegra was seriously
injured when her vehicle was struck by a Chevrolet Suburban
operated by Alfonso Rosales Gonzalez (Gonzalez) and regis-
tered to Gonzalez’ mother.
In 2022, Bocanegra filed this negligence action against
Gonzalez and his mother in the district court for Hamilton
County, seeking damages caused by the accident. Bocanegra
settled her claim against Gonzalez’ mother for $250,000, and
her claim against Gonzalez proceeded to trial.
In April 2024, the district court entered judgment in favor of
Bocanegra and against Gonzalez in the amount of $1,100,000,
plus costs and interest.
2. Declaratory Judgment Action
in Hall County
In 2022, shortly before Bocanegra commenced the neg-
ligence 	action 	at 	issue 	in 	this 	appeal, Viking 	Insurance
Company of Wisconsin (Viking) filed a declaratory judgment
action in the district court for Hall County seeking a dec-
laration of noncoverage under policy No. 11407230795 for
any liability arising out of the accident between Bocanegra
and Gonzalez. Viking named Gonzalez’ mother and father
as defendants, alleging they were the named insureds on the

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
automobile liability policy. Viking also named Bocanegra
and Gonzalez as defendants, alleging “their interests may be
affected by the declaration sought.”
Bocanegra moved to be dismissed as a party from the
declaratory judgment action under the holding in Medical
Protective Co. v. Schrein. 1 In Medical Protective Co., we held
that in declaratory judgment actions between tort-feasors and
their liability insurers, a trial court errs by exercising jurisdic-
tion over injured claimants, and that in such actions, the insurer
may not “obtain a declaration of noncoverage that is bind-
ing against an injured person in a later action.” 2 Relying on
Medical Protective Co., the district court granted Bocanegra’s
motion to dismiss and the declaratory judgment action pro-
ceeded to judgment against the remaining defendants.
The declaratory judgment, entered in January 2023, held
that Viking policy No. 11407230795 afforded no coverage
to Gonzalez or his parents “for any matters, claims, injuries
or damages arising out of the accident occurring on August
28, 2021, and which is the subject of [Bocanegra’s] lawsuit
appearing in the District Court of Hamilton [County.]” There is
no indication in our record that any party appealed the declara-
tory judgment.
3. Garnishment Proceeding
In May 2024, approximately 1 month after Bocanegra
obtained the judgment against Gonzalez in the negligence
action, Bocanegra commenced a garnishment in aid of execu-
tion against Viking. Bocanegra’s affidavit and praecipe for
summons alleged that she had a judgment against Gonzalez
for $1,100,000, plus $5,525.62 in interest, and had reason to
believe that Viking either had property belonging to or was
indebted to Gonzalez under policy No. 11407230795.
Viking timely responded to the garnishment interrogatories
and answered that it did not have any property belonging to
1 Medical Protective Co. v. Schrein, 255 Neb. 24, 582 N.W.2d 286 (1998).
2 Id. at 28, 582 N.W.2d at 290.

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321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
Gonzalez and it was not indebted to him. Viking attached to
its interrogatory answers a copy of the 2023 declaratory judg-
ment holding that the Viking policy provided no coverage to
Gonzalez for the accident with Bocanegra.
Bocanegra filed a timely application to determine garnishee
liability, controverting Viking’s claim that its policy afforded
no coverage for Gonzalez’ negligence. In the application,
Bocanegra claimed she was not bound by the 2023 declaratory
judgment and was “entitled to her own independent determi-
nation of [Viking’s] obligations” to Gonzalez under the policy.
She asserted that the Viking policy provided liability cover-
age to Gonzalez for the accident. Alternatively, she asserted
that “any policy language that may exclude [Gonzalez] as an
insured” should be reformed to provide such coverage. She
alleged two theories to support her request for reformation,
which we summarize later in the opinion.
In response to the application, Viking filed what it titled
a “Motion to Strike, Motion to Quash and Resistance to
[Bocanegra’s] Application for Determination of Garnishee
Liability.” Viking’s motion, which was not challenged on pro-
cedural grounds, 3 reiterated Viking’s position that the declara-
tory judgment conclusively established that the Viking policy
did not provide liability coverage to Gonzalez for the auto-
mobile accident at issue, and it asserted that the declaration
of noncoverage was binding on Bocanegra because she had
been a party defendant in the declaratory judgment action and
voluntarily sought dismissal from that action.
(a) Garnishment Trial
Bocanegra’s application and Viking’s motion to strike/quash
were consolidated and tried together. Both Gonzalez and his
3 See Torrison v. Overman, 250 Neb. 164, 172, 549 N.W.2d 124, 130 (1996)
(holding that “in a garnishment proceeding, the answers to interrogatories
and the application to determine garnishee liability are the only pleadings
for disposition of the liability issue”), disapproved on other grounds, ML
Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
mother testified, and the court received several exhibits, includ-
ing a certified copy of the Viking policy in effect on the date
of the accident and the key pleadings and orders entered in
the 2023 declaratory judgment action. We summarize that evi-
dence, and the trial court’s factual findings, only as necessary
to address the issues on appeal.
Viking policy No. 11407230795 was a “Named Driver” pol-
icy that included a “Broad Form Named Driver Endorsement,”
providing:
We will pay damages for which you are legally liable
because of bodily injury and/or property damage caused
by a car accident arising out of your operation of your
insured car by an insured person. We will not provide
coverage for any liability arising out of the operation
of your insured car by any other person who is not an
insured person.
The terms appearing in bold type are specifically defined in the
policy. “You” and “Your” were defined to mean “the person(s)
shown as the Named Insured on your Declarations Page.”
The declarations page identified just two named insureds—
Gonzalez’ mother and father. “Your insured car” was defined
to mean either a “car owned or leased by you which you are
operating,” a “car owned by you which is not being operated
by any person,” or a “car not owned or leased by you which
you are operating.”
Viking argued that under the plain terms of the policy, there
was no liability coverage for Gonzalez because he was not a
named driver under the policy. Bocanegra did not strenuously
contest Viking’s interpretation of the policy language; instead,
she argued that Gonzalez was a permissive driver, and she
asked the garnishment court to reform the Viking policy to
cover not only named drivers, but also permissive drivers,
under either of two theories.
Her first theory was that any policy provision purporting
to exclude permissive drivers was contrary to the provisions
of Neb. Rev. Stat. § 60-534 (Reissue 2021). Under § 60-534,

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
automobile liability policies used as proof of financial respon-
sibility are required to designate “all motor vehicles with
respect to which coverage” is being provided and are required
to insure not only the “person named” in the policy but also
“any other person . . . using [an insured motor vehicle] with
the express or implied permission of such named insured.”
Viking argued that the requirements of § 60-534 did not apply
to policy No. 11407230795, because that policy was not certi-
fied as proof of financial responsibility.
Bocanegra’s second theory anticipated Viking’s argument,
and she acknowledged that under Neb. Rev. Stat. § 60-561
(Reissue 2021), the requirements of § 60-534 do not apply
“to any automobile liability policy which has not been certi-
fied . . . as proof of financial responsibility.” But Bocanegra
argued that to the extent § 60-561 rendered the provisions of
§ 60-534 inapplicable to the Viking policy, the garnishment
court should find that § 60-561 was unconstitutional because
it violated equal protection principles under both the U.S.
and Nebraska Constitutions and was impermissible “special
legislation” under the Nebraska Constitution.
(b) Garnishment Judgment
In an order entered November 18, 2024, the district court
summarized the testimony adduced during the hearing and
made several factual findings based on the testimony of
Gonzalez and his mother. The court found that Gonzalez was
operating the Suburban when it collided with Bocanegra’s
vehicle, that the Suburban was registered to Gonzalez’ mother,
that the mother was the person who obtained the Viking policy,
and that Gonzalez “had taken the car without permission from
his father’s house” on the day of the accident. These factual
findings are not challenged on appeal.
Turning to the parties’ dispute over coverage for Gonzalez’
negligence under the Viking policy, the court first addressed
Viking’s argument that the 2023 declaratory judgment of non-
coverage was binding on Bocanegra. The garnishment court

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321 Nebraska Reports
BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
rejected that argument, noting that before the declaratory judg-
ment was issued, Bocanegra had successfully requested to be
dismissed as a party under the holding in Medical Protective
Co. 4 Relying on the statement in Medical Protective Co. that
an insurer’s “attempt to obtain a declaration of noncover-
age that would be binding on an injured person in a later
action is inappropriate, since more effective relief can and
should be obtained in other proceedings,” 5 the garnishment
court concluded that the 2023 declaration of noncoverage
was not binding on Bocanegra. And relying on the sugges-
tion in Medical Protective Co. that the insurer’s “assertions
of noncoverage can be presented without any consequential
harm to [the insurer] if or when any of the claimants seeks to
garnish policy proceeds as a result of a judgment against [the
tort-feasor],” 6 the garnishment court concluded that Bocanegra
must be given an opportunity, in the garnishment proceeding,
to prove her claim that the Viking policy provided liability
coverage to Gonzalez for the accident.
Regarding the question of coverage under the Viking policy,
the garnishment court recounted the relevant policy provisions
and concluded that Bocanegra’s coverage arguments were
unavailing. The court reasoned that the language of the Viking
policy unambiguously excluded “coverage for any liability
arising out of the operation of [y]our insured car by any other
person who is not an insured person” and concluded that
because Gonzalez was not a named insured under the Viking
policy, it provided no liability coverage to Gonzalez for the
accident with Bocanegra.
Finally, 	the 	garnishment 	court 	addressed 	Bocanegra’s
request to reform the Viking policy to provide coverage for
permissive drivers. In doing so, the court did not address
whether it had authority in a garnishment proceeding to
4 Medical Protective Co., supra note 1.
5 Id. at 31, 582 N.W.2d at 291.
6 Id.

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BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
reform the policy, whether Bocanegra had standing to seek
reformation of the policy, or whether Gonzalez could be con-
sidered a permissive driver in light of the factual finding that
he was using the Suburban without permission at the time
of the accident. Instead, the garnishment court addressed the
merits of Bocanegra’s reformation theories and concluded,
as a matter of law, that the provisions of § 60-534 requiring
coverage for permissive drivers did not apply to the Viking
policy. That was so, the court reasoned, because under the
express provisions of § 60-561, the requirements of § 60-534
do not apply to automobile policies that have not been cer-
tified as proof of financial responsibility under the Motor
Vehicle Safety Responsibility Act, 7 and Bocanegra had pro-
duced “no evidence” that the Viking policy was so certified.
The garnishment court also rejected both of Bocanegra’s con-
stitutional challenges to § 60-561, reasoning that she failed to
meet her burden of proof.
Bocanegra filed this appeal, along with a notice of a con-
stitutional question pursuant to Neb. Ct. R. App. P. § 2-109(E)
(rev. 2024). We moved the appeal to our docket.
II. ASSIGNMENT OF ERROR
On appeal, Bocanegra assigns multiple errors, but does not
challenge the district court’s determination that the Viking pol-
icy excluded liability coverage for Gonzalez because he was not
a named driver. Instead, consolidated and restated, she assigns
that the garnishment court erred in refusing to “reform” 8 the
Viking policy to provide liability coverage to Gonzalez under
the theory that he was a permissive driver.
7 See, e.g., Allied Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 243 Neb.
779, 502 N.W.2d 484 (1993); National Am. Ins. Co. v. Continental Western
Ins. Co., 243 Neb. 766, 502 N.W.2d 817 (1993), disapproved on other
grounds, McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d
642 (2015); State Farm Mut. Auto. Ins. Co. v. Hildebrand, 243 Neb. 743,
502 N.W.2d 469 (1993).
8 Brief for appellant at 16.

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BOCANEGRA v. GONZALEZ
Cite as 321 Neb. 738
Viking attempts to cross-appeal, challenging the garnish-
ment 	court’s 	determination 	that 	Medical 	Protective 	Co. 9
allowed Bocanegra to litigate the issue of coverage in the gar-
nishment proceeding despite the prior Hall County declara-
tory judgment.
III. STANDARD OF REVIEW
[1] Garnishment is a legal proceeding. 10 To the extent fac-
tual issues are involved, the findings of the fact finder will not
be set aside on appeal unless clearly wrong; however, to the
extent issues of law are presented, an appellate court has an
obligation to reach independent conclusions irrespective of the
determinations made by the court below. 11
[2,3] Subject matter jurisdiction is a question of law. 12 A
jurisdictional issue that does not involve a factual dispute
presents a question of law, which an appellate court indepen-
dently decides. 13
IV. ANALYSIS
[4,5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 14 This obligation requires
appellate courts to consider whether the court from which the
appeal was taken had jurisdiction, because if it did not, then
the appellate court acquires no jurisdiction. 15
[6] Although the practice is not expressly authorized by the
statutes governing garnishment in aid of execution, Nebraska
9 Medical Protective Co., supra note 1.
10 Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308 (2022).
11 Id.
12 Joshua M. v. State, 316 Neb. 446, 5 N.W.3d 454 (2024).
13 Powers v. Board of Directors of Elmwood Tower, 320 Neb. 906, 31
N.W.3d 599 (2026).
14 Id.; Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377
(2024).
15 Powers, supra note 13.

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BOCANEGRA v. GONZALEZ
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case law has long permitted judgment creditors to use gar-
nishment proceedings in aid of execution as a vehicle for
determining whether a garnishee’s insurance policy provides
coverage to the judgment debtor. 16 Consistent with that prec-
edent, Bocanegra used garnishment in aid of execution to
obtain a judicial determination of whether the Viking policy
provided liability coverage to Gonzalez, but on appeal, she
does not challenge the garnishment court’s determination of
noncoverage. Instead, she challenges only the garnishment
court’s refusal to reform the Viking policy to include cover-
age for permissive drivers, which she contends is required
under § 60-534. The parties have not questioned either the
garnishment court’s authority to reform the Viking insurance
policy or Bocanegra’s standing to seek such relief. But these
are jurisdictional questions this court cannot ignore, because
questions regarding a court’s subject matter jurisdiction must
be resolved as a threshold matter before an examination of
the merits. 17
[7-9] Subject matter jurisdiction is the power of a tribunal
to hear and determine a case in the general class or category
to which the proceedings in question belong and to deal
with the general subject matter involved. 18 The question of
a court’s subject matter jurisdiction does not turn solely on
the court’s authority to hear a certain class of cases. It also
involves determining whether a court has authority to address
a particular question that it assumes to decide or to grant
16 See, e.g., Fokken v. Steichen, 274 Neb. 743, 744 N.W.2d 34 (2008); R.W.
v. Schrein, 263 Neb. 708, 642 N.W.2d 505 (2002), modified on rehearing
264 Neb. 818, 652 N.W.2d 574; Farr v. Designer Phosphate & Premix
Internat., 253 Neb. 201, 570 N.W.2d 320 (1997); Torrison, supra note
3; Barry v. Tanner, 250 Neb. 116, 547 N.W.2d 730 (1996); Hiway 20
Terminal, Inc. v. Tri-County Agri-Supply, Inc., 235 Neb. 207, 454 N.W.2d
671 (1990); Bisgard v. Johnson, 3 Neb. App. 198, 525 N.W.2d 225 (1994).
17 See Joshua M., supra note 12.
18 Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).

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the particular relief requested. 19 The requirement of stand-
ing is fundamental to a court’s exercise of subject matter
jurisdiction, 20 and only a party who has standing may invoke
the jurisdiction of a court. 21
These jurisdictional principles compel us to answer two
threshold questions before considering Bocanegra’s conten-
tion that the garnishment court erred in refusing to reform
the Viking policy. First, we must consider whether, in a pro-
ceeding to determine garnishee liability under an insurance
policy, the garnishment court has subject matter jurisdiction
to entertain requests to reform the subject policy. Second, we
must consider whether one who is not a party to an insurance
contract has standing to seek reformation of the policy. To
answer these questions, we first review the general nature of
garnishment proceedings, we then consider the general nature
of actions to reform insurance policies, and, finally, we con-
sider issues of standing.
1. Garnishment in Aid of Execution
[10,11] Garnishment in aid of execution is a method by
which a judgment creditor can recover against a third party
for the debt owed by a judgment debtor. 22 Such a proceeding
is, in effect, an action by a judgment debtor in the garnishor’s
name against the garnishee. 23
[12,13] Under the garnishment statutes, a garnishee is
liable to the judgment creditor if it “shall appear upon the
trial of the liability of the garnishee that the garnishee was (1)
indebted to the defendant, or (2) had any property or credits
19 In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).
20 See Hawley v. Skradski, 304 Neb. 488, 935 N.W.2d 212 (2019).
21 See, e.g., State v. McKinney, ante p. 172, 33 N.W.3d 430 (2026); Nebraska
Firearms Owners Assn. v. City of Lincoln, 319 Neb. 723, 24 N.W.3d 891
(2025).
22 See Florence Lake Investments, supra note 10.
23 See id.

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of the defendant, in his possession or under his control at
the time of being served with the notice of garnishment.” 24
As such, a garnishee’s liability is to be determined as of the
time the garnishment summons is served. 25 And in an action
to determine the liability of the garnishee, the judgment credi-
tor has the burden to establish that the garnishee was liable
to the judgment debtor at the time notice of garnishment
was served. 26
[14-16] As a general principle, the claim of a judgment cred-
itor against a garnishee can rise no higher than the claim of the
judgment debtor against the garnishee. 27 We have said that “[a]
garnishor is subrogated to the rights of the judgment debtor
and can recover only by the same right and to the same extent
that the judgment debtor might recover from the garnishee.” 28
Accordingly, when determining the liability of a garnishee, the
test is whether, at the time the summons in garnishment was
served, the facts would support a recovery by the judgment
debtor against the garnishee. 29
[17,18] We have long recognized that garnishment is a
“legal, not equitable, remedy unknown at common law and is
a purely statutory remedy.” 30 Because garnishment is a creature
24 See Neb. Rev. Stat. § 25-1030.02 (Reissue 2016) (emphasis supplied).
25 Florence Lake Investments, supra note 10.
26 See, Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016);
Gerdes v. Klindt, 253 Neb. 260, 570 N.W.2d 336 (1997).
27 See, Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746
(1995); Action Heating & Air Cond. v. Petersen, 229 Neb. 796, 429
N.W.2d 1 (1988).
28 Florence Lake Investments, supra note 10, 312 Neb. at 198, 978 N.W.2d at
322.
29 See Florence Lake Investments, supra note 10.
30 Spaghetti Ltd. Partnership v. Wolfe, 264 Neb. 365, 369, 647 N.W.2d 615,
620 (2002), disapproved on other grounds, ML Manager v. Jensen, supra
note 3. See NC + Hybrids v. Growers Seed Assn., 219 Neb. 296, 363
N.W.2d 362 (1985), disapproved on other grounds, ML Manager, supra
note 3.

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of statute, garnishment proceedings are necessarily governed
by statutory provisions and specifications, and “[c]ourts may
not allow garnishment proceedings to follow any course other
than that charted by the Legislature.” 31
2. Reformation of Insurance Contracts
[19] In contrast to the purely statutory, legal remedy of
garnishment in aid of execution, reformation of an insurance
policy is an equitable remedy. 32 Nebraska law has recognized
the power of a court sitting in equity to reform an insurance
policy to correct a mutual mistake, 33 to correct a unilateral
mistake caused by the fraud or inequitable conduct, 34 to correct
an agent’s misrepresentation, 35 and to include an omitted term
previously agreed to. 36
Bocanegra did not seek reformation on any of these grounds.
Instead, she asked that the Viking policy be reformed because
it failed to conform to the requirements of § 60-534 and thus
violated public policy. Although it is generally permissible
for one who is a party to an insurance contract to seek the
equitable relief of reformation on the ground the policy fails
31 Spaghetti Ltd. Partnership, supra note 30, 264 Neb. at 370, 647 N.W.2d at
620.
32 See, Continental Cas. Co. v. Calinger, 265 Neb. 557, 657 N.W.2d 925
(2003); Parry v. State Farm Mut. Auto. Ins. Co., 191 Neb. 628, 216
N.W.2d 875 (1974); Central Granaries Co. v. Nebraska L. M. Ins. Ass’n,
106 Neb. 80, 182 N.W. 582 (1921); Wahoo Locker v. Farm Bureau Prop.
& Cas. Ins. Co., 24 Neb. App. 144, 885 N.W.2d 731 (2016).
33 See, e.g., Continental Cas. Co., supra note 32; Central Granaries Co.,
supra note 32.
34 See, Jelsma v. Acceptance Ins. Co., 233 Neb. 556, 446 N.W.2d 725 (1989);
Ridenour v. Farm Bureau Ins. Co., 221 Neb. 353, 377 N.W.2d 101 (1985).
35 See, e.g., Flamme v. Wolf Ins. Agency, 239 Neb. 465, 476 N.W.2d 802
(1991); Heikes v. Farm Bureau Ins. Co., 181 Neb. 827, 151 N.W.2d 336
(1967).
36 See, e.g., Jelsma, supra note 34; Mogil v. Maryland Casualty Co., 147
Neb. 1087, 26 N.W.2d 126 (1947); Davis v. Highway Motor Underwriters,
120 Neb. 734, 235 N.W. 325 (1931).

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to conform to an applicable statute, 37 there are several reasons
why the garnishment court here lacked jurisdiction to consider
Bocanegra’s request to reform the Viking policy. We address
each reason in turn.
3. Garnishment Court Lacked Jurisdiction Over
Bocanegra’s Request to Reform Viking Policy
Because garnishment in aid of execution is a purely statu-
tory legal remedy and not an equitable remedy, 38 we question
whether there are any circumstances under which a garnish-
ment court, in a proceeding to determine garnishee liability
under an insurance contract, would have subject matter juris-
diction to consider an equitable claim to reform the insur-
ance policy. We are not aware of any statute that authorizes a
garnishment court to grant equitable relief when determining
garnishee liability, and the parties do not direct us to any.
Moreover, because a garnishee’s liability must be determined
at the time the garnishment summons is served, we are skepti-
cal that a garnishment court could ever premise a finding of
garnishee liability on an insurance policy that was equitably
reformed after service of the garnishment summons.
But even assuming for the sake of argument that there
could be a circumstance under which a district court with gen-
eral equity jurisdiction, 39 sitting as a fact finder to determine
37 See, e.g., National Am. Ins. Co., supra note 7. See, also, 2 Steven Plitt
et al., Couch on Insurance 3d § 26:1 at 26-9 (2024) (where policy terms
violate applicable statutory provision, “reformation is required so as to
assure that the coverage will meet statutorily prescribed minimums”).
38 See, ML Manager, supra note 3; J.K. v. Kolbeck, 257 Neb. 107, 595
N.W.2d 875 (1999), disapproved on other grounds, ML Manager, supra
note 3; Otoe Cty. Nat. Bank v. Froelich, 234 Neb. 1, 448 N.W.2d 917
(1989).
39 See, Neb. Const. art. V, § 9 (conferring both chancery and common law
jurisdiction on district courts); Webb v. Nebraska Dept. of Health &
Human Servs., 301 Neb. 810, 828-29, 920 N.W.2d 268, 282 (2018) (noting
“the Legislature cannot limit or control the common law and equity
jurisdiction granted to the district court by the constitution”).

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garnishee liability under an insurance contract, might also
have subject matter jurisdiction to reform the contract, we
are confident the instant appeal does not present such a
circumstance. To explain why, we turn to the jurisdictional
issue of Bocanegra’s standing to seek reformation of the
Viking policy.
[20] Although it can be assumed that either Viking or its
insureds would have standing to seek reformation of the
insurance policy in a proper proceeding, we are aware of no
circumstance under which Bocanegra, as a stranger to the
insurance agreement, would acquire such standing. As a gen-
eral rule, reformation of written instruments may be had by
the immediate parties thereto and by those standing in privity
with them, but a person not a party or privy to the transac-
tion may not maintain the action. 40 And as we explain next,
Bocanegra was not a party to the insurance contract, and there
was no evidence that she stood in privity with any party to
the contract.
[21] Nebraska recognizes the general rule that there is no
privity between an injured person and the tort-feasor’s liability
insurer. 41 For this reason, Nebraska does not permit an injured
person to bring direct actions against the tort-feasor’s liabil-
ity insurer. 42 Moreover, “[t]his court has never held that an
injured person is a third-party beneficiary of a liability insur-
ance policy insuring the tort-feasor.” 43 Because Bocanegra was
not a party to the insurance contract, did not stand in privity
with any party to the insurance contract, and cannot claim
to be a third-party beneficiary under the contract, she lacked
standing to seek reformation of the policy.
40 See Schlake v. Jacobsen, 246 Neb. 921, 524 N.W.2d 316 (1994).
41 See, Molina v. American Alternative Ins. Corp., 270 Neb. 218, 699 N.W.2d
415 (2005); Medical Protective Co., supra note 1; West Neb. Gen. Hosp. v.
Farmers Ins. Exch., 239 Neb. 281, 475 N.W.2d 901 (1991).
42 See id.
43 Molina, supra note 41, 270 Neb. at 223, 699 N.W.2d at 419.

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As such, although the garnishment court plainly had sub-
ject matter jurisdiction to determine Viking’s garnishee liabil-
ity, it lacked subject matter jurisdiction to consider the merits
of Bocanegra’s request to reform the policy. We therefore
vacate the portion of the garnishment judgment purporting
to rule on the merits of Bocanegra’s request to reform the
policy but otherwise affirm the garnishment court’s judgment
of discharge.
4. Viking’s Attempted Cross-Appeal
[22] Although Viking purports to bring a cross-appeal chal-
lenging the garnishment court’s determination that the 2023
declaratory judgment of noncoverage was not binding on
Bocanegra in the garnishment proceedings, Viking’s appellate
brief fails to comply with the rules governing cross-appeals. A
party wishing to secure appellate review of a cross-appeal must
comply with the appellate briefing rules. 44
Neb. Ct. R. App. P. § 2-101(E) (rev. 2022) provides: “The
proper filing of an appeal shall vest in an appellee the right to
a cross-appeal against any other party to the appeal,” and it
requires that any cross-appeal must be “asserted in the appel-
lee’s brief as provided by § 2-109(D)(4).” Section 2-109(D)(4)
(emphasis supplied), in turn, states:
Cross-Appeal. Where the brief of appellee also presents a
cross-appeal, it shall be clearly noted on the cover of the
brief. Within the appellee’s brief, the cross-appeal shall be
set forth in a separate section of the brief. This separate
section shall be headed “Brief on Cross-Appeal” and shall
be prepared in the same manner and under the same rules
as the brief of appellant. See § 2-109(D)(1).
We discussed the requirements of § 2-109(D)(4) in North
Star Mut. Ins. Co. v. Miller, 45 where we explained:
44 See North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977 N.W.2d 195
(2022).
45 Id. at 954, 977 N.W.2d at 205 (emphasis supplied).

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A cross-appeal must be properly designated, pursuant
to § 2-109(D)(4), if affirmative relief is to be obtained.
A cross-appeal is properly designated by noting it on
the cover of the appellee brief and setting it forth in a
separate division of the brief. This separate section “shall
be headed ‘Brief on Cross-Appeal’ and shall be prepared
in the same manner and under the same rules as the brief
of appellant. See § 2-109(D)(1).” Under § 2-109(D)(1)(b)
through (i), the brief of appellant must include, in part,
a (1) statement of the basis of jurisdiction, (2) statement
of the case, (3) separate assignment of errors section, (4)
propositions of law, (5) statement of facts, (6) summary
of the argument, and (7) the argument.
. . . The decisive particulars governing how we treat
failures to fully abide with the rules for the brief of an
appellant depend on the nature of the noncompliance.
Here, Viking’s appellate brief often referenced a cross-
appeal, but it did not set forth the cross-appeal in a “separate
section” of the brief as required by § 2-109(D)(4). More spe-
cifically, Viking’s brief contains no separate title page for the
cross-appeal. Nor does it contain a separate table of contents,
statement of the basis of jurisdiction, statement of the case,
assignments of error, or propositions of law that pertain only to
the cross-appeal, as required by § 2-109(D)(4). Instead, Viking
attempted to consolidate these sections into the brief of the
appellee, and the result is that reference to the cross-appeal is
scattered throughout the brief.
[23] When an appellee’s brief fails to present a cross-appeal
that conforms to the requirements of § 2-109(D) (rev. 2025),
an appellate court can decline to consider the cross-appeal 46
or may elect to review the proceedings for plain error. 47 Given
the nature of the briefing deficiencies here, we decline to con-
sider the cross-appeal.
46 See Prinz v. Omaha Operations, 317 Neb. 744, 11 N.W.3d 641 (2024).
47 See North Star Mut. Ins. Co., supra note 44.

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V. CONCLUSION
For the foregoing reasons, we conclude the garnishment
court had subject matter jurisdiction to determine Viking’s
garnishee liability but lacked subject matter jurisdiction to
consider Bocanegra’s request to reform the Viking policy.
We therefore vacate the portion of the garnishment judgment
purporting to rule on reformation but otherwise affirm the
garnishment court’s judgment of discharge.
Affirmed in part, and in part
vacated and set aside.
Stacy, J., concurring.
I concur in all respects with the reasoning and holding of
the majority, including the decision not to address the cross-
appeal due to briefing deficiencies. But I write separately to
suggest that, in a more appropriate case, we should revisit our
holding in Medical Protective Co. v. Schrein 1 to clarify, among
other things, whether injured claimants are necessary parties
to a declaratory judgment action seeking a determination of
whether a liability insurance policy provides coverage to the
tort-feasor. Our case law on this question is conflicting, and
as this appeal illustrates, Medical Protective Co. has generated
confusion not just in declaratory judgment actions, but in sub-
sequent garnishment proceedings too.
In Medical Protective Co., a professional liability insurer
filed a declaratory judgment action seeking a declaration of
noncoverage after its insured, a pediatrician, was convicted
of sexually assaulting several minor patients. The pediatrician
was named as a defendant in the declaratory judgment action,
as were five injured claimants, some of whom had already
filed personal injury actions against the pediatrician. The dis-
trict court entered a declaration of noncoverage, reasoning that
the pediatrician had admitted the sexual conduct alleged by the
claimants and concluding that such conduct did not constitute
1 Medical Protective Co. v. Schrein, 255 Neb. 24, 582 N.W.2d 286 (1998).

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“professional services” 2 within the meaning of the profes-
sional liability policy. The injured claimants appealed, and we
reversed the declaration of noncoverage against the claimants
but left the judgment in place against the pediatrician.
We framed the dispositive issue in Medical Protective Co.
as “whether a declaratory judgment action may or should be
used as a means by which a tort-feasor’s liability insurer may
obtain a declaration of noncoverage that is binding against
an injured person in a later action.” 3 And we identified the
“narrow question [as] whether the trial court erred in exer-
cising its jurisdiction over the claimants” 4 in the declaratory
judgment action. We recited the general rule that “there is
no privity between an injured person and the tort-feasor’s
liability insurer [and for] this reason, direct actions against
liability insurance carriers based on the negligence of the
insured are not permitted in Nebraska.” 5 Based on this rule,
we stated, “[I]t would be illogical and inconsistent to permit
a tort-feasor’s liability insurer to seek in a direct action a
declaration of noncoverage that is binding against an injured
person in a later action.” 6
After discussing issues of privity, standing, and subject
matter jurisdiction in declaratory judgment actions, the court
in Medical Protective Co. ultimately concluded the insurer’s
“attempt to obtain a declaration of noncoverage that would
be binding on an injured person in a later action is inap-
propriate, since more effective relief can and should be
obtained in other proceedings.” 7 The only “other proceeding”
we mentioned in Medical Protective Co. was garnishment,
and we suggested that the insurer’s “defenses or assertions
2 Id. at 27, 582 N.W.2d at 289.
3 Id. at 28-29, 582 N.W.2d at 290.
4 Id. at 29, 582 N.W.2d at 290 (emphasis supplied).
5 Id. at 30, 582 N.W.2d at 290.
6 Id.
7 Id. at 31, 582 N.W.2d at 291.

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of noncoverage can be presented without any consequential
harm to [the insurer] if or when any of the claimants seeks to
garnish policy proceeds as a result of a judgment against [the
pediatrician].” 8 We expressly stated that our holding did “not
affect the declaratory judgment that was rendered in favor of
[the insurer] and against [the pediatrician].” 9
Our opinion in Medical Protective Co. neither cited nor
discussed our earlier opinion in Krohn v. Gardner, 10 where we
considered a similar question but reached the opposite conclu-
sion. In Krohn, we held that injured claimants are not only
interested parties but are “indispensable parties” 11 in declara-
tory judgment actions between tort-feasors and their liability
carriers to determine coverage. 12
The injured claimants in Krohn obtained judgments against
the tort-feasor for damages arising out of an automobile
accident and then filed a garnishment in aid of execution
against 	the 	tort-feasor’s 	automobile 	liability 	insurer. 	The
garnishee/insurer denied that it had property belonging to
the judgment debtor/tort-feasor and argued that the question
of coverage had already been conclusively determined in a
declaratory judgment action brought by the tort-feasor against
his insurer; in that action, the parties stipulated that the policy
did not afford coverage for the accident.
The garnishment court in Krohn determined that although
the injured claimants had not been made parties to the
8 Id.
9 Id.
10 Krohn v. Gardner, 238 Neb. 460, 471 N.W.2d 391 (1991).
11 Id. at 463, 471 N.W.2d at 394.
12 Accord Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb.
547, 554, 772 N.W.2d 88, 94 (2009) (holding that although injured
claimants lack privity of contract with tort-feasor’s liability insurer, they
are “interested and proper parties to a declaratory judgment action brought
by the insurer against the insured to determine coverage as it pertains to a
pending lawsuit”).

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declaratory judgment action, the stipulated declaration of
noncoverage was binding on them in garnishment proceed-
ings, reasoning that because the insurer “was not indebted
to [the tort-feasor], it could not be indebted to [the injured
claimants].” 13 The injured claimants appealed, arguing that
because they had not been made parties to the declaratory
judgment action, “their legal rights in [the tort-feasor’s] liabil-
ity insurance policy” 14 were not considered in that action. We
agreed and stated that because the injured claimants had not
been made parties in the declaratory judgment action, “their
rights [had] been prejudiced” 15 in the garnishment action.
We began our analysis in Krohn by reviewing the rules
governing declaratory judgment actions generally, noting that
Nebraska case law “makes it clear that the statute authorizing
a declaratory judgment is applicable only where all interested
persons are made parties to the proceedings” 16 and that “indis-
pensable parties to a suit are those who have such an interest
in the controversy that the court cannot render a final decree
without affecting their interests.” 17 We concluded that because
the injured claimants in Krohn had an interest that would
be affected by any coverage determination, “[t]hey were
indispensable parties” 18 in the declaratory judgment action
between the tort-feasor and his insurer. Then, reasoning that
13 Krohn, supra note 10, 238 Neb. at 462, 471 N.W.2d at 393.
14 Id.
15 Id. at 462, 471 N.W.2d at 394.
16 Id. at 463, 471 N.W.2d at 394 (internal quotation marks omitted). See,
also, Neb. Rev. Stat. § 25-21,159 (Reissue 2016) (providing that “[w]hen
declaratory relief is sought, all persons shall be made parties who have
or claim any interest which would be affected by the declaration, and
no declaration shall prejudice the rights of persons not parties to the
proceeding”).
17 Krohn, supra note 10, 238 Neb. at 463, 471 N.W.2d at 394 (internal
quotation marks omitted).
18 Id.

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the injured claimants in Krohn had “not been provided the
opportunity to be heard” 19 in the declaratory judgment action,
we held they “must be given an opportunity for their day in
court against the insurance company” 20 in the garnishment
proceedings, and we reversed the judgment and remanded the
cause for a new garnishment trial.
In my opinion, the holdings in Medical Protective Co.
and 	Krohn 	are 	contradictory 	and 	irreconcilable. 	Medical
Protective Co. effectively holds that injured claimants are not
necessary parties in declaratory judgment actions between
tort-feasors and their liability insurer, while Krohn holds that
injured claimants are indispensable parties in such actions.
I respectfully suggest that in a future case, where the issue
is more squarely presented and properly briefed, this court
should address these inconsistent holdings and clarify which,
if either, is correct.
When we do so, I think it would also be helpful to clar-
ify how garnishment courts should treat a prior declaration
of noncoverage. Both Medical Protective Co. and Krohn
appear to hold, albeit for different reasons, that even when a
court of competent jurisdiction has already declared that the
tort-feasor’s liability policy provides no coverage, injured
claimants 	must 	nevertheless 	be 	given 	an 	opportunity—in
a garnishment proceeding against the tort-feasor’s liability
insurer—to relitigate the availability of coverage. I am not
sure that reasoning can be squared with the established gar-
nishment framework in Nebraska.
As the majority opinion correctly observes, garnishment in
aid of execution is effectively a legal proceeding by a judg-
ment debtor in the garnishor’s name against the garnishee. 21
And in such a proceeding, the claim of a judgment creditor
19 Id. at 464, 471 N.W.2d at 394.
20 Id. at 467, 471 N.W.2d at 396.
21 See Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308
(2022).

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can rise no higher than the claim of the judgment debtor
against the garnishee. 22 In other words, “A garnishor is sub-
rogated to the rights of the judgment debtor and can recover
only by the same right and to the same extent that the judg-
ment debtor might recover from the garnishee.” 23 That is why,
at a trial to determine the liability of a garnishee, the test is
whether, at the time the summons in garnishment was served,
the facts would support a recovery by the “judgment debtor
against the garnishee.” 24 It is the judgment creditor’s burden
to prove that the garnishee was liable to the judgment debtor
at the time notice of garnishment was served. 25
Under this statutory framework, it seems to me that when
a garnishee/insurer relies on a prior declaration of noncov-
erage to contend that it is not indebted to the judgment
debtor/tort-feasor, the issue to be determined in a trial on
garnishee liability is not whether the court should treat the
prior declaratory judgment as “binding” on the judgment
creditor/injured claimant, but whether the judgment creditor
can establish some reason why the declaratory judgment is
not binding as between the garnishee/insurer and the judg-
ment debtor. 26 Yet here, Bocanegra made no attempt to prove
there was some reason why the declaratory judgment was not
22 See, Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746
(1995); Action Heating & Air Cond. v. Petersen, 229 Neb. 796, 429
N.W.2d 1 (1988).
23 Florence Lake Investments, supra note 21, 312 Neb. at 198, 978 N.W.2d at
322.
24 Id. at 199, 978 N.W.2d at 322 (emphasis supplied).
25 See, Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016);
Gerdes v. Klindt, 253 Neb. 260, 570 N.W.2d 336 (1997).
26 See Krohn, supra note 10 (Boslaugh, J., dissenting) (reasoning that
because rights of judgment creditor in garnishment proceedings are derived
through judgment debtor, and prior declaratory judgment was binding as
between garnishee and judgment debtor, judgment of discharge should
have been affirmed).

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enforceable by the “judgment debtor against the garnishee,” 27
because she understood Medical Protective Co. and Krohn as
invitations to relitigate the prior coverage determination in a
garnishment proceeding.
To the extent Medical Protective Co. and Krohn can be
read to suggest that garnishment proceedings can be used
by judgment creditors to relitigate whether the garnishee’s
liability policy affords coverage to the judgment debtor, I
think we should disapprove of such a reading because it is
inconsistent with the statutory garnishment framework and
creates the potential for conflicting coverage determinations
between the same parties. In this case, the garnishment court
ultimately reached the same determination of noncoverage as
was reached in the prior declaratory judgment action. 28 But if
it had ruled differently, which coverage determination would
be binding as between the insurer and its insured?
For all these reasons, I think our holdings in Medical
Protective Co. and Krohn are causing unnecessary confu-
sion in both declaratory judgment actions and in garnishment
proceedings. In a proper case, this court should revisit these
cases to clarify whether injured claimants are necessary par-
ties to declaratory judgment actions between liability insur-
ers and tort-feasors, as well as to address how a declaration
of noncoverage should be treated in a subsequent garnish-
ment proceeding.
27 Florence Lake Investments, supra note 21, 312 Neb. at 199, 978 N.W.2d at
322.
28 See, also, R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d 505 (2002), modified
on rehearing 264 Neb. 818, 652 N.W.2d 574 (after permitting judgment
creditors to relitigate coverage in garnishment proceeding, garnishment
court held no coverage was available for same reason relied upon in prior
declaratory judgment action).