City of Omaha v. City of Elkhorn

physician for a single act of ordinary negligence. Therefore, the
State may not discipline mahnke under § 013.18 for the alleg-
edly negligent act of using a dull curette rather than suction for a
second-trimester fetal demise. The State’s second unprofessional
conduct charge fails to state a ground for discipline.
VI. CONCLUSION
Although a physician’s single act of ordinary negligence can
lead to tragic consequences, the law must not turn on the facts
of a single case. The Legislature in §§ 71-147 and 71-148 has
concluded that a physician should not be subject to discipline
for a single act of ordinary negligence. Therefore, we conclude
that § 013.18 of the Department’s regulations is invalid to the
extent it can be interpreted to permit discipline for a single act
of ordinary negligence. The State has not alleged gross negli-
gence or a pattern of negligent conduct and may not discipline
mahnke for his single act of alleged ordinary negligence. Thus,
we affirm the district court’s reversal of the Department’s order
disciplining mahnke.
affiRmed .
city of omaha , nebRaska , a municipal coRpoRation , and
city of omaha mayoR michael fahey , appellees ,
v . city of elkhoRn , nebRaska , a municipal
coRpoRation , and fRateRnal oRdeR of
police lodGe no . 53, appellants .
city of omaha , nebRaska , a municipal coRpoRation , and
city of omaha mayoR michael fahey , appellees ,
v . city of elkhoRn , nebRaska , a municipal
coRpoRation , et al ., appellants .
752 N.W.2d 137
Filed July 11, 2008. 	Nos. S-07-174, S-07-263.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent from that of the
trial court.
70 	276 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact 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, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
4. Constitutional Law: Courts. The construction of the Constitution is a judicial
function, and the Constitution is interpreted as a matter of law.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a
party’s case because only a party who has standing may invoke the jurisdiction of
a court.
6. Standing: Jurisdiction. The defect of standing is a defect of subject mat-
ter jurisdiction.
7. ____: ____. Standing requires that a litigant have such a personal stake in the out-
come of a controversy as to warrant invocation of a court’s jurisdiction and justify
the exercise of the court’s remedial powers on the litigant’s behalf.
8. ____: ____. If the party bringing the suit lacks standing, the district court is with-
out jurisdiction to decide the issues in the case.
9. Actions: Jurisdiction. If an action is not ready, or “ripe” for judicial determina-
tion, then the district court lacks subject matter jurisdiction to consider the case.
10. Declaratory Judgments: Pleadings: Justiciable Issues. A court should refuse a
declaratory judgment action unless the pleadings present a justiciable controversy
which is ripe for judicial determination.
11. Declaratory Judgments. An action for declaratory judgment cannot be used
to decide the legal effect of a state of facts which are future, contingent,
or uncertain.
12. Courts: Jurisdiction. Although not a constitutional prerequisite for jurisdiction, an
actual case or controversy is necessary for the exercise of judicial power.
13. ____: ____. Ripeness involves both jurisdictional and prudential concerns. When
making a ripeness determination, a court must consider, as a jurisdictional matter,
whether it can act at a certain time and also, as a prudential matter, whether it
should act at that time.
14. ____: ____. A court can take into account all information available to it at the
time a ripeness challenge is considered and decide whether an issue is ripe
for determination.
15. Constitutional Law: Employment Contracts: Time. When the services for
which compensation is granted are rendered prior to the date on which the terms
of compensation are determined, the benefits awarded are not compensation but are
a gratuity, and the payment of such benefits violates Neb. Const. art. III, § 19. It
follows that when the services for which compensation is paid are rendered after
the date on which the terms of compensation are established, the benefits awarded
are not a gratuity, and the payment of such benefits does not violate Neb. Const.
art. III, § 19.
16. Contracts: Consideration. Consideration is sufficient to support a contract if there
is any detriment to the promisee or any benefit to the promisor.
CITY OF OmAhA v. CITY OF ELkhORN 	71
Cite as 276 Neb. 70

Appeals 	from 	the 	District 	Court 	for 	Douglas 	County:
G eRald e. moRan, Judge. Reversed and remanded for further
proceedings.
Jeff C. miller, Duncan A. Young, and keith I. kosaki, of
Young & White, for appellants.
William m. Lamson, Jr., Lawrence F. harr, and Craig F.
martin, of Lamson, Dugan & murray, L.L.P., and Paul D. kratz,
Omaha City Attorney, and Alan m. Thelen for appellees.
heavican, 	C.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
milleR-leRman, J.
I. NATURE OF CASE
These two cases, Nos. S-07-174 and S-07-263, consolidated
for appeal, arise from an annexation dispute. In these appeals,
we are asked to determine whether certain contract provisions
requiring continued employment and allowing for the payment
of severance benefits in the event the City of Elkhorn, Nebraska
(Elkhorn), was annexed by the City of Omaha, Nebraska, appel-
lee (Omaha), are valid and enforceable. In each case, Omaha
sought a declaration in the district court for Douglas County that
the agreements, which had been negotiated by Elkhorn prior to
its annexation by Omaha, were not valid because they violated
Neb. Const. art. III, § 19, which generally prohibits paying a
gratuity or “extra compensation” to a public employee. The
district court concluded it had jurisdiction, declared the sever-
ance provisions invalid and unenforceable, and granted sum-
mary judgment in favor of Omaha. Case No. S-07-174 involves
Elkhorn and the Fraternal Order of Police Lodge No. 53.
Case No. S-07-263 involves Elkhorn and management employ-
ees Donald Eikmeier, Wendy Anderson, kevin Daly, Timothy
Dempsey, Cheryl Eckerman, Steven morrissey, Jesse Robinson,
and “Jane Does” and “John Does.”
We conclude that jurisdiction exists over these cases. however,
contrary to the district court’s ruling, we conclude that because
the severance provisions were determined prior to the services
rendered by the police and management appellants and are
72 	276 NEBRASkA REPORTS

supported by adequate consideration, the severance provisions
are enforceable and the payments made under the severance
provisions are not unconstitutional gratuities. Accordingly, we
reverse the district court’s grant of summary judgment in each
case, and we remand the causes for further proceedings consis-
tent with this opinion.
II. FACTS
The material facts are essentially undisputed. Beginning in
2003, the Fraternal Order of Police Lodge No. 53 (herein-
after the police appellants); and Eikmeier, as Elkhorn’s city
administrator; Anderson; Daly; Dempsey; Eckerman; morrissey;
Robinson; and Jane and John Does, as management person-
nel within Elkhorn’s government (hereinafter collectively the
management appellants), entered into contracts that provided
for the payment of severance benefits. The severance provisions
in these contracts provided generally that in exchange for their
agreement to remain employed, the police and management
appellants would be entitled to the payment of severance ben-
efits if Elkhorn was annexed and if at the time of the annexa-
tion, the individual police and management appellants were still
employed by Elkhorn.
Specifically, the police appellants’ severance provision pro-
vided that they would be paid compensation equal to 52 weeks
in monthly installments beginning with the month after the
police appellants’ last day of employment with Elkhorn. The
police appellants’ severance provision further stated that if, dur-
ing the 52-week compensation period, the police appellants were
employed as law enforcement officers by any political subdivi-
sion of the State of Nebraska, the right to compensation under
the severance provision terminated.
Eikmeier’s agreement provided that Eikmeier would receive
6 months’ pay as severance benefits, which could be paid in one
lump sum at Eikmeier’s election. The agreement of the remain-
ing management appellants provided that they would receive 10
weeks’ pay as severance benefits, which could be paid in one
lump sum at the individual management appellant’s election.
There was no provision in the management appellants’ con-
tracts that their severance benefits would be terminated if they
CITY OF OmAhA v. CITY OF ELkhORN 	73
Cite as 276 Neb. 70

found employment subsequent to their last day of employment
with Elkhorn.
Beginning in early 2005, Omaha and Elkhorn each passed
annexation ordinances. Omaha annexed Elkhorn, and Elkhorn
sought to annex surrounding communities in an effort to immu-
nize itself from Omaha’s annexation. On march 9, 2005, Elkhorn
filed a complaint in the district court for Douglas County, seek-
ing to prevent Omaha’s annexation of Elkhorn from taking
effect (the annexation case). Following a trial, the district court
determined that Omaha’s annexation ordinance was valid and
that Elkhorn’s annexation ordinance was invalid. In an opinion
filed January 12, 2007, this court affirmed the district court’s
order in the annexation case and noted that Omaha’s annexation
of Elkhorn was effective march 24, 2005. See City of Elkhorn v.
City of Omaha, 272 Neb. 867, 725 N.W.2d 792 (2007).
On march 31, 2006, Omaha filed two separate actions, which
are the cases presently before this court. In these cases, Omaha
sought declaratory judgments that the severance provisions were
invalid and unenforceable under Neb. Const. art. III, § 19, which
prohibits paying extra compensation to a public employee after
services have been rendered. In each case, Omaha filed a motion
for summary judgment, and in each case, appellants filed oppo-
sitions to the motion. Omaha’s motions and appellants’ opposition
to the motions came on for evidentiary hearings.
During the hearings, appellants challenged the district court’s
subject matter jurisdiction, claiming that Omaha lacked standing
to bring its declaratory judgment actions and further claiming
that the issues raised therein were not ripe. The police appel-
lants’ evidence included an affidavit from Eikmeier in his capac-
ity as city administrator. Eikmeier stated as follows:
10. In July 2003, [the police appellants] presented to me,
as the chief negotiator for . . . Elkhorn, a proposed Labor
Agreement . . . .
11. As part of the proposal by [the police appellants,
they] requested a severance provision . . . .
. . . .
13. [The police appellants] maintained that such a sev-
erance provision was necessary to insure the ability to
74 	276 NEBRASkA REPORTS

provide qualified police officers, in the event of annexation
. . . of Elkhorn by any other political entity.
. . . .
19. The [severance provision] requires the [police appel-
lants] to continue employment with [Elkhorn] until such
time as [Elkhorn] no longer exists, in exchange for an
agreement of [Elkhorn] to pay a retention incentive . . . .
20. [The p]olice [appellants] are promised a retention
incentive payment in exchange for such employees forego-
ing [sic] any opportunity of employment in other entities
during any period of potential annexation, or any transition
required because of annexation, in order to receive any of
the severance incentive payments.
The management appellants also introduced into evidence an
affidavit from Eikmeier in his capacity as city administrator. In
his affidavit, Eikmeier stated as follows:
10. [As part of negotiations in] July 2003 . . . [the
management appellants] presented demands regarding job
security and incentive payments as a condition for them to
continue their employment until such time as . . . Elkhorn
ceased to exist as a result of . . . annexation.
. . . .
14. In the summer of 2003 I presented and recom-
mended to the Elkhorn City Council and mayor that . . .
Elkhorn take the necessary steps designed to assist . . .
Elkhorn in retaining the services of . . . employees, and to
address the concerns of losing employment as a result of
. . . annexation . . . .
15. In September 2003, the City Council approved the
recommendation to provide for compensation to those
[employees] in exchange and in consideration for their
continued service to . . . Elkhorn.
16. The Severance Agreement is, in reality and by
its terms, a retention incentive agreement whereby the
employee agrees to continue in the employment of . . .
Elkhorn in exchange for [Elkhorn’s] promise of a payment
upon the completion of the service.
. . . .
CITY OF OmAhA v. CITY OF ELkhORN 	75
Cite as 276 Neb. 70

18. Without the retention incentive . . . Elkhorn would
have lost many of its key employees . . . because of the
uncertainty of Elkhorn’s continued existence.
Eikmeier’s affidavit testimony in both cases was essentially
uncontroverted by Omaha.
By entry of an order in each case, the district court sustained
Omaha’s summary judgment motions. The district court deter-
mined in each case that it had subject matter jurisdiction and
declared that the severance provisions were void because they
violated Neb. Const. art. III, § 19. The district court enjoined
enforcement of the provisions. Appellants appeal from the dis-
trict court’s orders.
III. ASSIGNmENTS OF ERROR
Appellants raise several assignments of error that we sum-
marize and restate as two. Appellants claim, restated, that the
district court erred (1) in determining that it had subject matter
jurisdiction over Omaha’s declaratory judgment actions and (2)
in sustaining Omaha’s motions for summary judgment based
upon its determination that the severance provisions violated
Neb. Const. art. III, § 19.
IV. STANDARDS OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent
from that of the trial court. In re Estate of Rose, 273 Neb. 490,
730 N.W.2d 391 (2007).
[2,3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact 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. Hofferber v. City of
Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008). In reviewing
a summary judgment, an appellate court views the evidence in a
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
76 	276 NEBRASkA REPORTS

[4] The construction of the Constitution is a judicial function,
and the Constitution is interpreted as a matter of law. Myers
v. Nebraska Equal Opp. Comm., 255 Neb. 156, 582 N.W.2d
362 (1998).
V. ANALYSIS
1. the distRict couRt had subJect matteR J uRisdiction
Appellants raise issues of standing and ripeness before this
court and contend that the district court erred when it concluded
that it had subject matter jurisdiction in these cases. Appellants
argue that because Omaha was not a party to the severance
provisions, it lacked standing to seek a declaratory judgment
concerning the validity of those provisions. Appellants also
argue that because the annexation case was on appeal at the
time Omaha filed its declaratory judgment actions, the lawsuits
were not ripe. As explained below, we conclude that appellants’
assignment of error challenging jurisdiction is without merit.
(a) Omaha had Standing to Seek Declaratory Judgments
as to the Enforceability of the Severance Provisions
[5-8] With regard to standing, this court has recognized that
standing is a jurisdictional component of a party’s case because
only a party who has standing may invoke the jurisdiction of a
court. In re Application of Metropolitan Util. Dist., 270 Neb.
494, 704 N.W.2d 237 (2005). We have further stated that the
defect of standing is a defect of subject matter jurisdiction.
Citizens Opposing Indus. Livestock v. Jefferson Cty., 274 Neb.
386, 740 N.W.2d 362 (2007). Standing requires that a litigant
have such a personal stake in the outcome of a controversy as to
warrant invocation of a court’s jurisdiction and justify the exer-
cise of the court’s remedial powers on the litigant’s behalf. See,
id.; Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540
(2002). If the party bringing the suit lacks standing, the district
court is without jurisdiction to decide the issues in the case. See
McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581,
748 N.W.2d 66 (2008).
In the instant cases, Omaha had standing to seek a judicial
determination regarding the enforceability of the severance pro-
visions. Omaha filed its lawsuits pursuant to Nebraska’s Uniform
CITY OF OmAhA v. CITY OF ELkhORN 	77
Cite as 276 Neb. 70

Declaratory Judgments Act, Neb. Rev. Stat. § 25-21,149 et seq.
(Reissue 1995 & Cum. Supp. 2006). A section of that act,
§ 25-21,150, provides that “[a]ny person interested under a . . .
written contract or other writings constituting a contract . . . may
have determined any question of construction or validity arising
under the . . . contract[.]”
Omaha became interested in the severance provisions when
it annexed Elkhorn, and pursuant to Neb. Rev. Stat. § 14-118
(Reissue 1997), it succeeded to the contracts. Section 14-118
provides in pertinent part that
[w]henever any city of the metropolitan class shall
extend its boundaries so as to annex or merge with it any
city or village, the laws, ordinances, powers, and govern-
ment of such metropolitan city shall extend over the ter-
ritory embraced within such city or village so annexed
or merged with the metropolitan city from and after the
date of annexation. The date of annexation or merger shall
be set forth in the ordinance providing for the same, and
after said date the metropolitan city shall succeed to all
the property and property rights of every kind, contracts,
obligations, and choses in action of every kind held by or
belonging to the city or village annexed or merged with it,
and the metropolitan city shall be liable for and recognize,
assume, and carry out all valid contracts, obligations and
licenses of any city or village so annexed or merged with
the metropolitan city.
In accordance with § 14-118, Omaha, a city of the metropoli-
tan class, see City of Elkhorn v. City of Omaha, 272 Neb. 867,
725 N.W.2d 792 (2007), succeeded to and became liable for
the severance provisions on march 24, 2005, the date Omaha’s
annexation ordinance became effective. See id. Compare Airport
Authority of City of Millard v. City of Omaha, 185 Neb. 623, 177
N.W.2d 603 (1970) (citing § 14-118 and stating that Omaha’s
annexation of millard did not impair contracts entered into
by millard airport authority prior to annexation date, because
Omaha incurred obligation to carry out contract by virtue of
annexation). Once the annexation ordinance became effective,
Omaha was liable under the severance provisions and Omaha
became “interested” in those provisions. See § 25-21,150. Thus,
78 	276 NEBRASkA REPORTS

contrary to appellants’ jurisdictional challenge, Omaha’s interest
gave it standing to seek a declaratory judgment regarding the
enforceability of the severance provisions.
(b) The Issues in These Cases Are Ripe for Determination
[9-12] With regard to ripeness, we have recognized that if
an action is not ready, or “ripe” for judicial determination, then
the district court lacks subject matter jurisdiction to consider
the case. See Bonge v. County of Madison, 253 Neb. 903, 573
N.W.2d 448 (1998). In the context of declaratory judgment
actions, we have stated generally that “[a] court should refuse
a declaratory judgment action unless the pleadings present a
justiciable controversy which is ripe for judicial determination. .
. . An action for declaratory judgment cannot be used to decide
the legal effect of a state of facts which are future, contingent,
or uncertain.” Central Neb. Pub. Power v. Jeffrey Lake Dev., 267
Neb. 997, 1003, 679 N.W.2d 235, 241 (2004). Accord Ryder
Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994).
In a similar vein, we have noted that although not a constitu-
tional prerequisite for jurisdiction, an actual case or controversy
is necessary for the exercise of judicial power. Orchard Hill
Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738
N.W.2d 820 (2007).
A determination with regard to ripeness depends upon the
circumstances in a given case. This is because “‘[t]he difference
between an abstract question and a [case ripe for determina-
tion] is one of degree . . . .’” See Nebraska Public Power Dist.
v. MidAmerican Energy, 234 F.3d 1032, 1038 (8th Cir. 2000)
(quoting Babbitt v. Farm Workers, 442 U.S. 289, 99 S. Ct. 2301,
60 L. Ed. 2d 895 (1979)).
[13] It has been recognized that a determination of judi-
cial ripeness often involves a two-part analysis. The Texas
Supreme Court described this two-part approach by stating that
“[r]ipeness . . . involves both jurisdictional and prudential con-
cerns.” See Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001).
The court explained that when making a ripeness determination,
a court must consider, as a jurisdictional matter, whether it can
act at a certain time and also, as a prudential matter, whether it
should act at that time.
CITY OF OmAhA v. CITY OF ELkhORN 	79
Cite as 276 Neb. 70

A similar approach was adopted by the U.S. Court of Appeals
for the Eighth Circuit. In Nebraska Public Power Dist. v.
MidAmerican Energy, supra, a federal declaratory judgment
action case, the Eighth Circuit stated that the ripeness inquiry
required an examination of both the jurisdictional question of
the “‘fitness of the issues for judicial decision’” and of the pru-
dential question concerning the “‘hardship to the parties of with-
holding court consideration.’” 234 F.3d at 1038 (quoting Abbott
Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed.
2d 681 (1967)). The Eighth Circuit explained that
[t]he “fitness for judicial decision” inquiry goes to a
court’s ability to visit an issue. . . . [I]t safeguards against
judicial review of hypothetical or speculative disagree-
ments. . . .
In addition to being fit for judicial resolution, an issue
must be such that delayed review will result in significant
harm. “harm” includes both the traditional concept of
actual damages—pecuniary or otherwise—and also the
heightened uncertainty and resulting behavior modification
that may result from delayed resolution.
Nebraska Public Power Dist. v. MidAmerican Energy, 234 F.3d
at 1038. We consider this two-part analytical approach to be
appropriate when evaluating a ripeness challenge and employ it
in the present cases.
With regard to the jurisdictional aspect of ripeness, we dis-
agree with appellants’ argument that posits that these cases were
not ripe at the time Omaha filed its declaratory judgment actions
due to the existence of the appeal in the annexation case and
that as a result, these cases remained immutably unripe through
their pendency. Appellants’ contention ignores this court’s prior
decisions involving Omaha’s annexation of the former city of
millard, wherein we filed opinions on the same day that, first,
affirmed the district court’s determination that the annexation
was valid and, second, notwithstanding the pendency of the
annexation appeal, considered and resolved issues involving
whether contracts entered into by the annexed airport authority
were affected by the annexation. See City of Millard v. City of
Omaha, 185 Neb. 617, 177 N.W.2d 576 (1970) (affirming dis-
trict court’s decision that Omaha’s annexation of millard was
80 	276 NEBRASkA REPORTS

valid), and Airport Authority of City of Millard v. City of Omaha,
185 Neb. 623, 177 N.W.2d 603 (1970) (determining airport
authority’s contracts were not impaired by Omaha’s annexation
of millard).
[14] Appellants’ argument presumes that ripeness is an
unchanging characteristic of a lawsuit. however, just as a court
can consider the issue of mootness during the pendency of liti-
gation, see Keef v. State, 271 Neb. 738, 716 N.W.2d 58 (2006)
(determining issue on appeal challenging statute became moot
when Legislature repealed statute after filing of litigation), a
court can take into account all information available to it at the
time a ripeness challenge is considered and decide whether an
issue is ripe for determination, see 13A Charles Alan Wright et
al., Federal Practice and Procedure § 3532.1 at 136-37 (2d ed.
1984) (stating that “[r]ipeness should be decided on the basis of
all the information available to the court. Intervening events that
occur after decision in lower courts should be included, just as
must be done with questions of mootness”). The U.S. Supreme
Court has said “since ripeness is peculiarly a question of tim-
ing, it is the situation now rather than the situation at the time
of the District Court’s decision that must govern.” Regional Rail
Reorganization Act Cases, 419 U.S. 102, 140, 95 S. Ct. 335, 42
L. Ed. 2d 320 (1974).
These cases were filed in district court on march 31, 2006.
This court’s decision in the annexation case was filed on January
12, 2007, and stated that Omaha’s annexation of Elkhorn was
effective march 24, 2005. Thus, although the appeal in the
annexation case was resolved during the pendency of the pres-
ent litigation, as a matter of law, Omaha annexed Elkhorn and
succeeded to its contracts on march 24, 2005, which is prior to
the filing of these cases in the district court. Taking into con-
sideration all information available to us, as we must, we reject
appellants’ jurisdictional argument regarding ripeness.
With respect to the prudential aspect of ripeness, we believe
there can be no reasonable dispute as to the “harm” that would
result from a delayed review in the instant cases. As noted above,
the annexation is complete and final. Dismissing these appeals
at the present time would result in delay and the unnecessary
expense of judicial resources. Compare CenTra, Inc. v. Chandler
CITY OF OmAhA v. CITY OF ELkhORN 	81
Cite as 276 Neb. 70

Ins. Co., 248 Neb. 844, 854, 540 N.W.2d 318, 327 (1995) (dis-
cussing appellate court’s attempt to avoid relitigating issues “at
the costs of greater delay . . . and needless waste of judicial
resources”). The issue in these cases is essentially legal in nature
and may be resolved without further factual development. See
Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507,
18 L. Ed. 2d 681 (1967), abrogated on other grounds, Califano
v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977).
Omaha’s challenge to and our consideration of the severance
provisions are limited to a constitutional analysis. Continued
uncertainty regarding the enforceability of the severance provi-
sions is undesirable and unnecessary. After consideration of both
the jurisdictional and prudential aspects of ripeness, we conclude
the instant cases are ripe for judicial consideration.
Accordingly, 	appellants’ assignment 	of 	error 	challenging
jurisdiction is without merit.
2. the seveRance pRovisions aRe not an
unconstitutional GRatuity
For their substantive assignment of error, appellants contend
that the district court erred in sustaining Omaha’s motions for
summary judgment based upon its conclusion that the sever-
ance provisions violated Neb. Const. art. III, § 19. Appellants’
arguments are addressed solely to the constitutionality of the
provisions under Neb. Const. art. III, § 19, and our analysis is
similarly circumscribed. Appellants claim that the district court’s
determination that the severance provisions are invalid because
they grant “extra compensation” after services have been ren-
dered is contrary to existing Nebraska case law and ignores the
evidence in these cases. We find merit to appellants’ argument.
Because the uncontroverted evidence demonstrates that the terms
of the severance provisions were determined before services
were rendered and are supported by adequate consideration,
we conclude that the provisions do not violate Neb. Const. art.
III, § 19, and are enforceable. We therefore reverse the district
court’s orders and remand the causes for further proceedings
consistent with this opinion.
[15] Article III, § 19, provides in pertinent part that “[t]he
Legislature shall never grant any extra compensation to any
82 	276 NEBRASkA REPORTS

public officer, agent, or servant after the services have been ren-
dered . . . .” Article III, § 19, applies to the State and its politi-
cal subdivisions. See Retired City Civ. Emp. Club of Omaha v.
City of Omaha Emp. Ret. Sys., 199 Neb. 507, 260 N.W.2d 472
(1977). We have said that when the “services” for which com-
pensation is granted are rendered prior to the date on which the
terms of compensation are determined, the “benefits awarded are
not compensation but are a gratuity.” See Wilson v. Marsh, 162
Neb. 237, 252, 75 N.W.2d 723, 732 (1956). It follows that when
the “services” for which compensation is paid are rendered after
the date on which the terms of compensation are established, the
benefits awarded are not a gratuity.
In the instant cases, Omaha argued and the district court
agreed that the moneys to be paid to police and manage-
ment appellants under the severance provisions constituted an
improper gratuity because the moneys were payable only in the
event of and after Elkhorn’s annexation. The district court deter-
mined that “annexation, rather than continued employment, is
the key factor” that led to the payment of the severance benefits.
This determination is contrary to the significance of the material
facts and of the applicable law.
In Myers v. Nebraska Equal Opp. Comm., 255 Neb. 156, 582
N.W.2d 362 (1998), we considered whether an amount that the
Nebraska Equal Opportunity Commission (NEOC) had agreed
to pay Lawrence R. myers, an NEOC employee, to resign his
position with the NEOC and to relinquish certain other rights
constituted an unconstitutional gratuity in violation of Neb.
Const. art. III, § 19. We framed the issue in that case as being
whether myers’ resignation and relinquishment of rights con-
stituted adequate consideration to support a binding contract
and a legal obligation to pay. In Myers, we stated that if the
consideration was adequate, the NEOC was obligated to pay
under the contract, and that the payment to myers was not an
unconstitutional gratuity.
[16] In resolving the issue posed in Myers, we characterized
consideration as being “sufficient to support a contract if there
is any detriment to the promisee or any benefit to the promi-
sor.” 255 Neb. at 163, 582 N.W.2d at 367. We then reviewed
the record and observed that the NEOC had entered into the
CITY OF OmAhA v. CITY OF ELkhORN 	83
Cite as 276 Neb. 70

agreement with myers “to prevent any impairment in its opera-
tion.” Id. at 165, 582 N.W.2d at 368-69. We noted that myers
had relinquished his right to try to clear his name after certain
allegations had been leveled against him and that the relinquish-
ment of this right constituted a detriment to myers and served
as a benefit to the NEOC, which had a “‘legitimate interest in
avoiding disruption’” at the NEOC. Id. at 165, 582 N.W.2d at
369. We concluded that because the agreement provided a detri-
ment to myers and a benefit to the NEOC, the agreement was
supported by adequate consideration, and that thus, the payment
to myers under the agreement was not an unconstitutional gratu-
ity. Id.
Contrary to the district court’s focus on the timing of the
payment of the severance benefits in the instant cases, the focus
under Neb. Const. art. III, § 19, is more appropriately on when
the compensation is granted and whether there is consideration
to support the compensation. If adequate consideration supports
the severance provisions, then the payments are not gratuities
and the severance provisions are enforceable. See id.
The records in the instant cases present evidence of a benefit
to the promisor and a detriment to the promisee. The records
contain affidavits setting forth, without dispute, that the sever-
ance provisions were entered into to enable Elkhorn to retain key
employees who, when faced with the possibility of Elkhorn’s
annexation and the corresponding possibility of losing their jobs,
might have sought other employment rather than remain in their
positions. The record further reflects that the police and manage-
ment appellants were only entitled to receive payments under the
severance provisions if they agreed to continue their employment
and they were still employed by Elkhorn at the time of Elkhorn’s
annexation and if their positions were effectively eliminated as
a result of the annexation. Thus, Elkhorn and, subsequently,
Omaha benefited from the appellants’ decisions to remain in
their positions and to carry out their employment responsibili-
ties up to and until the time that their services were no longer
needed, and the police and management appellants suffered
the detriment of forgoing new employment opportunities until
after their employment was terminated. The evidence further
shows that the date it was determined to provide severance was
84 	276 NEBRASkA REPORTS

before services were rendered. This record demonstrates that the
severance provisions were supported by adequate consideration
and did not violate the provisions of Neb. Const. art. III, § 19.
See Myers v. Nebraska Equal Opp. Comm., 255 Neb. 156, 582
N.W.2d 362 (1998).
Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose that there is no genuine
issue as to any material fact 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. Hofferber v. City of
Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008). The uncontro-
verted evidence demonstrates that the severance provisions were
determined before service was rendered and were supported by
adequate consideration. We conclude that the severance provi-
sions did not violate Neb. Const. art. III, § 19, and are valid and
enforceable. Omaha, as the moving party that sought to invali-
date the agreements, was not entitled to judgment in its favor.
The district court’s ruling to the contrary was error.
VI. CONCLUSION
In these consolidated appeals, we conclude that the district
court correctly exercised subject matter jurisdiction over these
cases but that it erred in granting summary judgment in favor of
Omaha. We conclude that the severance provisions did not vio-
late Neb. Const. art. III, § 19, and are valid and enforceable. We
reverse the district court’s grant of summary judgment in favor
of Omaha in each case, and we remand the causes for further
proceedings consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedinGs .
CITY OF OmAhA v. CITY OF ELkhORN 	85
Cite as 276 Neb. 70