Lamar Co. v. City of Fremont

The L amar C ompany, LLC, a L ouisiana LimiTed LiabiLiTy
Company, doing business as The L amar C ompanies ,
appeLLanT and Cross -appeLLee , v. C iTy of fremonT,
a muniCipaLiTy, eT aL., appeLLees and Cross -appeLLanTs ,
and neLsen enTerprises , inC., a nebraska
CorporaTion, doing business as viCTor
ouTdoor adverTising , appeLLee .
771 N.W.2d 894
Filed September 4, 2009. 	No. S-08-590.
1. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
2. Standing: Jurisdiction: Parties: Judgments: Appeal and Error. Standing is a
jurisdictional component of a party’s case, because only a party who has stand-
ing may invoke the jurisdiction of a court; determination of a jurisdictional issue
which does not involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a trial court.
3. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
4. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the 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.
5. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the
amount of the fee is addressed to the trial court’s discretion, and its ruling will
not be disturbed on appeal absent an abuse of discretion.
6. Zoning: Words and Phrases. The right to maintain a legal nonconforming use
“runs with the land,” meaning it is an incident of ownership of the land, and is
not a personal right.
7. Standing: Proof. In order for a party to establish standing to bring suit, it is
necessary to show that the party is in danger of sustaining direct injury as a result
of anticipated action, and it is not sufficient that one has merely a general interest
common to all members of the public.
8. Standing: Jurisdiction: Justiciable Issues. As an aspect of jurisdiction and
justiciability, 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 exercise of the court’s remedial powers on the litigant’s behalf.
9. Standing: Municipal Corporations. Generally, in order to have standing to
bring suit to restrain an act of a municipal body, the persons seeking such action
must show some special injury peculiar to themselves aside from a general injury
to the public, and it is not sufficient that they have merely a general interest com-
mon to all members of the public.
lAmAr cO. v. cITy OF FremONT 	485
cite as 278 Neb. 485
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

10. Constitutional Law: Property. A claim that a regulation “goes too far” and
deprives an individual or entity of a vested property right should be analyzed
under the Takings clause of the Fifth Amendment to the U.S. constitution and
article I, § 21, of the Nebraska constitution.
11. Constitutional Law: Contracts: Governmental Subdivisions. In order to deter-
mine whether a governmental entity unconstitutionally interfered with a contract,
a court engages in a three-part analysis. The court must examine (1) whether
there has been an impairment of the contract; (2) whether the governmental
entity’s actions, in fact, operated as a substantial impairment of the contractual
relationship; and, if so, (3) whether that impairment was nonetheless a permis-
sible, legitimate exercise of the governmental entity’s sovereign powers.
12. Torts: Intent: Proof. In order to establish a claim for tortious interference with
a business relationship or expectancy, a claimant must prove (1) the existence of
a valid business relationship or expectancy, (2) knowledge by the interferer of the
relationship or expectancy, (3) an unjustified intentional act of interference on the
part of the interferer, (4) proof that the interference caused the harm sustained,
and (5) damage to the party whose relationship or expectancy was disrupted.
13. Torts: Intent. One of the basic elements of tortious interference with a business
relationship requires an intentional act which induces or causes a breach or ter-
mination of the relationship.
14. Conspiracy: Words and Phrases. A civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlawful or oppressive object,
or a lawful object by unlawful or oppressive means.
15. Conspiracy: Torts. A conspiracy is not a separate and independent tort in itself,
but, rather, is dependent upon the existence of an underlying tort.
16. Attorney Fees. Neb. rev. Stat. § 25-824 (reissue 2008) provides generally that
the district court can award reasonable attorney fees and court costs against any
attorney or party who has brought or defended a civil action that alleges a claim
or defense that a court determines is frivolous or made in bad faith.
Appeal from the District court for Dodge county: John e.
samson, Judge. Affirmed.
Amy S. Geren, of Geren law, and, on brief, Aimee J. Haley,
of Fullenkamp, Doyle & Jobeun, for appellant.
Daniel J. epstein and michael F. Kinney, of cassem, Tierney,
Adams, Gotch & Douglas, for appellee city of Fremont.
Thomas B. Thomsen, of Sidner, Svoboda, Schilke, Thomsen,
Holtorf, Boggy & Nick, for appellees larsen International,
Inc., et al.
David c. mitchell, of yost, Schafersman, lamme, Hillis,
mitchell & Schulz, P.c., l.l.O., for appellee Nelsen enterprises,
Inc.
486 	278 NeBrASKA rePOrTS

heaviCan, 	C.J., 	WrighT, 	C onnoLLy, 	gerrard, 	sTephan,
mCC ormaCk, and miLLer-L erman, JJ.
miLLer-L erman, J.
NATUre OF THe cASe
Appellant, The lamar company, llc, doing business as
The lamar companies (lamar), had nonconforming billboard
signs situated on land in Fremont, Nebraska, pursuant to peri-
odic lease agreements with appellee landowners. In 2003, the
Fremont city ordinances were amended to allow replacement
of nonconforming signs, and the landowners leasing to lamar
discontinued their leases with lamar and leased the space to
a different sign company. lamar filed an action in the district
court for Dodge county against various landowners, entities,
and the city of Fremont (the city). lamar challenged the
constitutionality of the ordinance and alleged that, although it
was a mere lessee, it had a vested property right in the noncon-
forming structures and that this vested property right was not
the landowners’ to transfer. The district court generally found
in favor of appellees on the merits. lamar appeals, and certain
appellees have filed cross-appeals. Because we conclude that
lamar lacked standing to challenge the constitutionality of the
ordinance and that the rights to the nonconforming use run
with the land, we reject lamar’s arguments on appeal. Further,
we find no merit to some issues raised on cross-appeal and
do not reach the substance of others. We, therefore, affirm the
judgment entered by the district court.
STATemeNT OF FAcTS
In 2001, lamar acquired leaseholds on off-premise adver-
tising signs in Fremont, including signs on property owned
by the following appellees: melvin Schwanke and Green Key
II, Inc. (collectively Schwanke); larsen International, Inc.,
John larsen, and michelle larsen (collectively larsen); and
Fontanelle Hybrid Seed co. and Nebraska Irrigated Seeds,
llc (collectively Fontanelle). lamar purchased the signs
from Bellows Outdoors. Bellows Outdoors had acquired the
signs which were located on the Schwanke and Fontanelle
properties in 1969, and built two signs at the larsen property
in 1991 and 1999. These signs became nonconforming with
lAmAr cO. v. cITy OF FremONT 	487
cite as 278 Neb. 485

the adoption of the city’s zoning code in the fall of 2000. The
billboard signs were nonconforming when lamar purchased
them in 2001.
In 2002, Bruce Nelsen formed Nelsen enterprises, Inc.,
doing business as Victor Outdoor Advertising (Victor). In
November and December 2002, Nelsen, on behalf of Victor,
approached the owners of the larsen and Schwanke properties
and proposed to replace the nonconforming signs owned by
lamar. Also, in December 2002, Nelsen and Victor’s attorney
approached the city with proposed changes to the city’s zon-
ing code. Thereafter, an outside consultant drafted a proposed
ordinance based on the changes suggested by Nelsen and
Victor’s attorney.
The proposed ordinance amended article 10, § 1003(h), of
the Fremont city ordinances, which governed sign regulations.
The proposed amendment allowed for the replacement of non-
conforming signs, provided that the size of the new sign did
not exceed the sign area of the existing sign which was being
replaced and that the new sign structure utilized a monopole
structure design. The new ordinance also repealed the 15-
year sunset provision for nonconforming outdoor advertising
signs. The issue of the amended ordinance was placed on the
planning commission’s agenda, and notices of the meetings
were published.
From January through march 2003, the city’s planning
commission and the city council held public meetings regard-
ing the requested changes to the city’s zoning regulations.
There is no dispute that notices of the time and place of the
hearings were made consistent with state law. The city sent
a letter to lamar prior to the city council’s march 25, 2003,
hearing, enclosing a copy of the proposed revisions to the sign
code. On march 25, the city passed ordinance No. 4032 and
amended § 1003(h).
Prior to the enactment of ordinance No. 4032, Schwanke
and larsen entered into lease agreements with Victor to replace
lamar’s signs. On June 6, 2003, Fontanelle entered into a
lease with Victor to replace lamar’s sign. Beginning in April
2003, pursuant to ordinance No. 4032, Victor and the land-
owners applied to the city for replacement permits to allow
488 	278 NeBrASKA rePOrTS

Victor to replace lamar’s signs. The city issued the replace-
ment permits.
Prior to the enactment of ordinance No. 4032, lamar oper-
ated and maintained its nonconforming signs at each property
by virtue of periodic lease agreements with appellee land-
owners. The parties agree that even before the march 25,
2003, passage of ordinance No. 4032, the landowners could
have terminated lamar’s leases with appropriate notice. On
march 28, Schwanke sent notice to lamar via facsimile that
Schwanke was terminating lamar’s leases. In June, Fontanelle
notified lamar that it was terminating its leases with lamar in
November. larsen terminated its leases with lamar in may and
September of 2004.
Having received notice of the landowners’ decisions to ter-
minate the leases, lamar removed its structures from appellee
landowners’ properties. After lamar’s leases were terminated,
Victor erected signs replacing lamar’s signs. lamar agrees
that the leases were terminated by their terms, but argues that
Victor did not have the right to erect new signs.
After removing its signs, lamar brought this action in the
district court for Dodge county alleging 14 causes of action,
including constitutional challenges to ordinance No. 4032.
Named as defendants, and appearing herein as appellees, were
the following: the city, Victor, larsen International, melvin
Schwanke, Fontanelle Hybrid Seed co., American National
Bank of Fremont, Green Key II, John larsen, michelle larsen,
and Nebraska Irrigated Seeds.
On February 22, 2006, the district court entered an order
granting partial summary judgment in favor of appellees and
denying a partial summary judgment sought by lamar. In its
ruling, the court noted that when the leases were effectively
and lawfully terminated, lamar’s nonconforming use rights for
its signs were also extinguished.
The remaining matters came on for a hearing on October 26,
2006. On January 11, 2007, the district court entered an order
granting the motions for summary judgment filed by appel-
lees and denying the amended motions for summary judgment
filed by lamar. In its order, the district court held, inter alia,
that ordinance No. 4032 was not arbitrary and capricious, nor
lAmAr cO. v. cITy OF FremONT 	489
cite as 278 Neb. 485

was it facially unconstitutional. The court further concluded
that lamar did not have standing to challenge the validity of
a facially constitutional ordinance on an “as applied” basis
to signs that were no longer situated on the land. The district
court denied lamar’s remaining claims.
lamar appealed on February 6, 2007, in case No. A-07-144.
On February 27, 2008, the court of Appeals remanded the
cause for lack of jurisdiction, because the district court had not
entered an order on appellee landowners’ motion for attorney
fees. After entry of an order denying appellee landowners’
request for attorney fees, lamar once again appealed. certain
appellees have filed cross-appeals.
ASSIGNmeNTS OF errOr
We have summarized and restated certain of lamar’s assign-
ments of error, which resolve this appeal. lamar claims that
the district court erred in (1) stating that “the right to maintain
a nonconforming use does not depend upon ownership or ten-
ancy of the land on which the use is situated. It is not personal
to the current owner or tenant, but attaches to the land itself”;
(2) concluding that lamar lacked standing to assert an “as
applied” challenge to ordinance No. 4032; (3) concluding that
ordinance No. 4032 was constitutional on its face; (4) granting
summary judgment in favor of appellees on lamar’s takings
claims; (5) granting summary judgment in favor of appellees
on lamar’s claim of constitutional impairment of lamar’s
contracts or rights; (6) granting summary judgment in favor
of appellee the city on lamar’s claim under 42 U.S.c. § 1983
(2006); (7) granting summary judgment in favor of appellee
Victor on lamar’s claim of tortious interference with contract;
and (8) granting summary judgment in favor of appellees on
lamar’s conspiracy claim.
The cross-appellant landowners claim that lamar’s action
was frivolous and that the district court erred by failing to
award them attorney fees pursuant to Neb. rev. Stat. § 25-824
(reissue 2008).
Appellee the city, relying on statutes and case law, cross-
appeals the district court’s denial of its motion for summary
judgment, based on its argument that it was immune from
490 	278 NeBrASKA rePOrTS

lamar’s suit. Given our resolution of lamar’s appeal, it is not
necessary to reach this cross-appeal.
STANDArDS OF reVIeW
[1] On a question of law, we reach a conclusion independent
of the court below. Pierce v. Douglas Cty. Civil Serv. Comm.,
275 Neb. 722, 748 N.W.2d 660 (2008).
[2] Standing is a jurisdictional component of a party’s case,
because only a party who has standing may invoke the jurisdic-
tion of a court; determination of a jurisdictional issue which
does not involve a factual dispute is a matter of law which
requires an appellate court to reach its conclusions independent
from a trial court. In re Estate of Dickie, 261 Neb. 533, 623
N.W.2d 666 (2001).
[3,4] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law. In reviewing a summary judg-
ment, an appellate court views the evidence in the 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. OMNI v. Nebraska Foster Care
Review Bd., 277 Neb. 641, 764 N.W.2d 398 (2009).
[5] When an attorney fee is authorized, the amount of the fee
is addressed to the trial court’s discretion, and its ruling will
not be disturbed on appeal absent an abuse of discretion. In re
Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
ANAlySIS
The District Court’s Ruling Is Consistent With the
Legal Proposition That Nonconforming
Use Rights Run With the Land.
For its first assignment of error, lamar contends that the
district court erred by stating that “the right to maintain a non-
conforming use does not depend upon ownership or tenancy
of the land on which the use is situated. It is not personal to
the current owner or tenant, but attaches to the land itself.”
Given the substance of its ruling against lamar, we understand
lAmAr cO. v. cITy OF FremONT 	491
cite as 278 Neb. 485

the district court’s statement to mean that the right to a non-
conforming use runs with the land and we agree with the
legal proposition.
[6] While this court has not previously addressed the issue,
upon review of the jurisprudence of other jurisdictions and
the treatises addressing nonconforming use rights, we are per-
suaded that the right to maintain a legal nonconforming use
“runs with the land,” meaning it is an incident of ownership of
the land, and is not a personal right. Therefore, a change in the
ownership or tenancy of a nonconforming business or structure
which takes advantage of the nonconforming rights does not
affect the current landowner’s right to continue the noncon-
forming use. See 83 Am. Jur. 2d Zoning and Planning § 587
(2003). See, also, Budget Inn of Daphne v. City of Daphne, 789
So. 2d 154 (Ala. 2000); S & S v. Zoning Bd. for Stratford, 373
N.J. Super. 603, 862 A.2d 1204 (2004). The rationale for this
rule is amply explained in 4 rathkopf’s The law of Zoning
and Planning § 72:20 at 72-56 (edward H. Ziegler, Jr., ed.
2005), which states:
It is obvious that if the right to continue a nonconform-
ing use were not considered one of the “bundle of rights”
which together constitute the attributes of ownership of
the land, exercisable by [a landowner who] had the pos-
sessory interest therein, it would prevent a purchaser [of
the land] from using the land for any purpose other than
one permitted by the ordinance in effect at the time of
transfer. The owner of the land would be unable to sell all
of his rights in the land and in the use thereof, and, being
out of possession of the land, could not exercise the right
to the nonconforming use.
lamar contends that while the nonconforming use rights may
“run with the land,” the rights vest in the individual or entity
currently using those rights and that, therefore, once such use
is terminated, the legal nonconforming rights remain with the
individual or entity which had used the nonconforming right
and such rights cannot be transferred without the authority of
this individual or entity. We believe lamar’s proposed proposi-
tion of law is not sound. Indeed, such a holding could lead to
492 	278 NeBrASKA rePOrTS

the very problem identified in the rathkopf treatise, wherein a
landowner is divested of the ability to transfer the nonconform-
ing use rights associated with his or her real property and, fur-
ther, the proposed purported owner of the nonconforming use
rights, having been separated from the real property on which
the nonconforming rights had been used, would be unable to
utilize such rights.
We reject lamar’s suggestion and conclude that the better
proposition of law is, as stated above, that the right to maintain
and use a legal nonconforming use “runs with the land” and is
an incident of ownership of the land. Based on this holding, we
affirm the district court’s initial order granting partial summary
judgment in favor of appellees and conclude that when lamar’s
leases were terminated, any rights it had with respect to the
nonconforming use of the land were extinguished.
Standing Requires a Special Injury: Lamar Lacked
Standing to Challenge the Constitutionality
of Ordinance No. 4032.
lamar’s second and third assignments of error, condensed
and summarized, claim that the district court erred in conclud-
ing lamar lacked standing to assert an “as applied” constitu-
tional challenge to ordinance No. 4032 and that the district
court erred in concluding that ordinance No. 4032 was consti-
tutional on its face.
In its order, the district court concluded that once lamar’s
leasehold interests were lawfully terminated, it had no owner-
ship interest in the nonconforming use rights. Therefore, lamar
lacked standing to challenge ordinance No. 4032 as it applied
to the nonconforming signs on appellee landowners’ proper-
ties. The district court further concluded that lamar did have
standing to raise a facial challenge to the ordinance, because it
owned other nonconforming signs in Fremont.
As explained below, we agree with the district court that
once lamar’s leaseholds were terminated, lamar no longer had
a legal interest in the nonconforming use rights and, therefore,
could not show that it was in danger of sustaining direct injury
as a result of the enactment of ordinance No. 4032 as it applied
lAmAr cO. v. cITy OF FremONT 	493
cite as 278 Neb. 485

to the nonconforming signs at issue in this case. Unlike the
district court, however, we further conclude that lamar lacked
standing to make a facial challenge to ordinance No. 4032,
because lamar failed to establish that it was in danger of sus-
taining any direct injury as a result of the enactment of ordi-
nance No. 4032.
[7-9] We have repeatedly held that in order for a party to
establish standing to bring suit, it is necessary to show that
the party is in danger of sustaining direct injury as a result of
anticipated action, and it is not sufficient that one has merely
a general interest common to all members of the public. State
ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 132
(2002). Indeed, as an aspect of jurisdiction and justiciability,
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 exercise of the court’s
remedial powers on the litigant’s behalf. McClellan v. Board of
Equal. of Douglas Cty., 275 Neb. 581, 748 N.W.2d 66 (2008).
Generally, in order to have standing to bring suit to restrain an
act of a municipal body, the persons seeking such action must
show some special injury peculiar to themselves aside from a
general injury to the public, and it is not sufficient that they
have merely a general interest common to all members of the
public. Id. Further, in order to maintain an action to enforce
private rights, the plaintiff must show that he will be benefited
by the relief to be granted. Hall v. Cox Cable of Omaha, Inc.,
212 Neb. 887, 327 N.W.2d 595 (1982) (citing Stahmer v.
Marsh, 202 Neb. 281, 275 N.W.2d 64 (1979)). Thus, in seek-
ing to challenge ordinance No. 4032, lamar must show that
the enactment of the ordinance resulted in some special injury
peculiar to it, and this injury must be separate from a general
injury to the public.
In this case, lamar has not established that it will endure
any such special injury. The district court noted that lamar
owns other nonconforming signs in Fremont, but the owning
of nonconforming signs alone does not establish that lamar
has or will suffer some sort of special injury as a result of the
enactment of ordinance No. 4032. Indeed, neither the district
494 	278 NeBrASKA rePOrTS

court nor lamar has indicated how the enactment of ordinance
No. 4032 will injure lamar. While it is conceivable that lamar
may have other signs replaced under the ordinance, the record
before us does not indicate any such facts have occurred or
are likely to occur. moreover, it is also conceivable that lamar
could benefit from the ordinance by replacing its competitors’
nonconforming signs.
Based on the record before us, we conclude that lamar
lacked standing to assert its “as applied” or facial challenge
to ordinance No. 4032, and, although our reasoning differs
from that of the district court, we affirm the district court’s
grant of summary judgment with respect to the constitu-
tional challenge.
Lamar Cannot Establish Its Takings Claims.
lamar argues that the district court erred in granting sum-
mary judgment on its claims of regulatory taking, because
genuine issues of material fact existed. Specifically, lamar
argues that there were genuine issues of material fact whether
ordinance No. 4032 destroyed the value of lamar’s property to
such an extent that it constituted a regulatory taking of lamar’s
property rights by eminent domain.
[10] A claim that a regulation “goes too far” and deprives an
individual or entity of a vested property right should be ana-
lyzed under the Takings clause of the Fifth Amendment and
the Nebraska constitution. See, Scofield v. State, 276 Neb. 215,
753 N.W.2d 345 (2008); U.S. const. amend. V.; Neb. const.
art. I, § 21. To establish a takings claim under either the U.S.
or Nebraska constitution, it is axiomatic that the claimant must
have been deprived of some property right.
lamar bases its takings claim on the notion that it had a
vested property right in the nonconforming use of its billboard
signs. However, earlier in this opinion, we concluded that
any rights lamar had with respect to the nonconforming use
were extinguished when its leases were terminated. Therefore,
because lamar had no property rights to take, lamar’s takings
claims fail. The district court did not err in concluding that
there were no genuine issues of material fact as to lamar’s
takings claims.
lAmAr cO. v. cITy OF FremONT 	495
cite as 278 Neb. 485

There Were No Genuine Issues of Material Fact
Concerning Whether Lamar’s Contract Rights
Were Constitutionally Impaired.
Next, lamar argues that ordinance No. 4032, as enacted,
violates U.S. const. art. I, § 10, and Neb. const. art. I, § 16,
because it is a law that invalidates lamar’s contract rights. We
reject this argument.
[11] In Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d
121 (1998), this court set forth the three-part analysis to deter-
mine whether a contract has been unconstitutionally interfered
with. Under Miller, we examine (1) whether there has been
an impairment of the contract; (2) whether the city’s actions,
in fact, operated as a substantial impairment of the contrac-
tual relationship; and, if so, (3) whether that impairment was
nonetheless a permissible, legitimate exercise of the city’s
sovereign powers. Because lamar cannot establish the first
prong of the Miller analysis, we do not consider the remain-
ing prongs.
As stated earlier in this opinion, once lamar’s leaseholds
were terminated, all rights lamar had in the nonconform-
ing use of its billboards were extinguished. The landowners
and lamar agree that the leases permitting lamar to place
its billboards on their lands were terminated under the terms
of the periodic lease agreements. The lease agreements were
entered into prior to the enactment of ordinance No. 4032.
Therefore, lamar’s contracts were not impaired by the enact-
ment of ordinance No. 4032, because lamar received all
the benefit of the bargained-for contract. The district court
properly granted summary judgment in favor of appellees and
dismissed this claim.
Lamar Cannot Establish a Claim
Under 42 U.S.C. § 1983.
lamar next claims that based on the enactment of ordinance
No. 4032, there were genuine issues of material fact whether
the city deprived lamar of its “‘rights, privileges or immunities
secured by the constitution or laws of the United States,’” in
violation of 42 U.S.c. § 1983. Brief for appellant at 42. Again,
based on our initial conclusion, once lamar’s leaseholds were
496 	278 NeBrASKA rePOrTS

properly terminated, all rights it had in the nonconforming use
of its signs were extinguished. Thus, lamar had no rights of
which to be deprived and this claim is without merit.
There Were No Genuine Issues of Material Fact
Whether Victor Tortiously Interfered With
Lamar’s Contractual Rights.
Next, lamar claims that the district court erred in grant-
ing appellees’ motion for summary judgment, because there
were genuine issues of material fact whether Victor tortiously
interfered with its contractual relationship with appellee land-
owners. This assignment of error is without merit.
[12] In order to establish a claim for tortious interfer-
ence with a business relationship or expectancy, a claimant
must prove (1) the existence of a valid business relationship
or expectancy, (2) knowledge by the interferer of the rela-
tionship or expectancy, (3) an unjustified intentional act of
interference on the part of the interferer, (4) proof that the
interference caused the harm sustained, and (5) damage to
the party whose relationship or expectancy was disrupted. See
Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748
N.W.2d 626 (2008).
[13] One of the basic elements of tortious interference with a
business relationship requires an intentional act which induces
or causes a breach or termination of the relationship. See id.
An intentional, but justified, act of interference will not subject
the interferer to liability. See Matheson v. Stork, 239 Neb. 547,
477 N.W.2d 156 (1991) (citing and clarifying Miller Chemical
Co., Inc. v. Tams, 211 Neb. 837, 320 N.W.2d 759 (1982). See,
also, restatement (Second) of Torts § 770 (1979).
In Miller Chemical Co., Inc., this court quoted the restatement
of Torts § 768 (1939) with respect to when competition is a
proper or improper interference, stating:
“(1) One is privileged purposely to cause a third person
not to enter into or continue a business relation with a
competitor of the actor if (a) the relation concerns a mat-
ter involved in the competition between the actor and the
competitor, and (b) the actor does not employ improper
means, and (c) the actor does not intend thereby to create
lAmAr cO. v. cITy OF FremONT 	497
cite as 278 Neb. 485

or continue an illegal restraint of competition, and (d) the
actor’s purpose is at least in part to advance his interest in
his competition with the other.”
211 Neb. at 842, 320 N.W.2d at 762. The court also noted that
“[t]he fact that hatred or desire for revenge was part of the rea-
son is insufficient to make interference improper if the conduct
is directed at least in part to advancement of [a party’s] own
competitive interest and social benefits arising therefrom.” Id.
at 843, 320 N.W.2d at 763.
The district court rejected lamar’s tortious interference claim
and found that Victor was protected in its actions of soliciting
business from appellee landowners and replacing lamar’s signs
by virtue of the “competitor privilege.” The district court noted
in its order that “lamar acknowledges that [Victor is] in the
outdoor advertising business competing directly against lamar
in the Fremont market . . . .” The court further noted that by
their terms, lamar’s leases were subject to termination.
We agree that lamar has failed to establish a claim for
tortious interference with a business relationship. However, for
completeness, we note that although Miller Chemical Co., Inc.
used the term “privilege,” we have since clarified that an inten-
tional, but justified, act of interference, such as valid competi-
tion, cannot be the basis for a tortious interference claim. See
Matheson v. Stork, supra.
The undisputed facts in this case are that Victor and lamar
are both in the sign business and that both conduct business
in the Fremont area. The record further shows that lamar’s
leases were terminated by their terms. even giving all infer-
ences in favor of lamar, there is nothing in the record to indi-
cate that Victor employed improper means to replace lamar’s
leases, and there is no evidence that Victor will restrain fur-
ther competition.
lamar suggests that the enactment of the ordinance and the
replacing of its signs were the result of ill will between lamar
and some of the appellees. But as noted in Miller Chemical
Co., Inc., supra, even if part of the motivation for replacing
lamar’s signs was based on ill will, as a competitor in the
sign business, Victor is allowed to make efforts to advance
its sign business, including efforts to recruit new customers
498 	278 NeBrASKA rePOrTS

for its sign business. Victor’s actions were not an improper
interference. lamar has failed to establish a claim for tortious
interference of a business relationship, and in the absence of
a genuine issue of material fact, the district court’s ruling in
favor of appellees on the motion for summary judgment was
not error.
There Were No Genuine Issues of Material Fact
as to Lamar’s Claim of Civil Conspiracy.
Finally, lamar argues that genuine issues of material fact
existed with respect to lamar’s claim of civil conspiracy. lamar
contends that Victor and appellee landowners conspired against
lamar to deprive it of its nonconforming property rights.
[14,15] A civil conspiracy is a combination of two or more
persons to accomplish by concerted action an unlawful or
oppressive object, or a lawful object by unlawful or oppressive
means. Eicher v. Mid America Fin. Invest. Corp., 275 Neb.
462, 748 N.W.2d 1 (2008). We have previously stated that a
“conspiracy” is not a separate and independent tort in itself,
but, rather, is dependent upon the existence of an underlying
tort. Brummels v. Tomasek, 273 Neb. 573, 731 N.W.2d 585
(2007). Without such an underlying tort, there can be no claim
for relief for a conspiracy to commit the tort. Id.
Again, as we noted earlier in this opinion, once lamar’s
leases were properly terminated, any rights it had in the non-
conforming use of the signs were extinguished. Furthermore,
we affirmed the district court’s denial of lamar’s claim for
tortious interference with a business relationship. Therefore,
based on the record in this case, we conclude that lamar has
not established any predicate tort to support its claim of civil
conspiracy, and therefore, the district court did not err in grant-
ing appellees’ motion for summary judgment on this claim.
The District Court Did Not Abuse Its Discretion
by Denying Cross-Appellants Attorney Fees.
[16] For their cross-appeal, appellee landowners claim that
the district court erred in denying their motion for attorney
fees sought under § 25-824. Section 25-824 provides generally
that the district court can award reasonable attorney fees and
court costs against any attorney or party who has brought or
lAmAr cO. v. cITy OF FremONT 	499
cite as 278 Neb. 485

defended a civil action that alleges a claim or defense that a
court determines is frivolous or made in bad faith. See Stewart
v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007).
The district court denied appellees’ motion for attorney fees,
concluding that “the court cannot say that [lamar’s] lawsuit
was without rational argument based on law and evidence to
support [lamar’s] position in the lawsuit.” The court further
noted that lamar’s attorneys were always thoroughly prepared
and that it was evident that the attorneys had spent substantial
time and effort in researching and investigating the claims.
We will not disturb a district court’s rulings on attorney
fees absent an abuse of discretion. After reviewing the history
of this case, we conclude that the trial court did not abuse its
discretion in determining that this case was not frivolous or
brought in bad faith. Therefore, the district court’s denial of
attorney fees is affirmed.
cONclUSION
The district court properly concluded that when lamar’s
leases were terminated by their terms, lamar’s rights with
respect to the nonconforming use of the signs were extin-
guished and remained with the current landowner. Furthermore,
lamar lacked standing to raise its “as applied” and facial chal-
lenges to ordinance No. 4032 and the district court was not in
error in granting summary judgment in favor of appellees on
lamar’s remaining claims. Further, the district court did not err
in denying the cross-appellants’ request for attorney fees.
affirmed.
roger Johnson, appeLLanT, v. kaThryn L. anderson and
roberT broberg , C opersonaL represenTaTives of The
esTaTe of aner anderson, deCeased, appeLLees.
771 N.W.2d 565
Filed September 4, 2009. 	No. S-08-811.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
500 	278 NeBrASKA rePOrTS