Ashby v. State

specifically advised that upon conviction, he could be subject to
the lifetime community supervision provisions of § 83-174.03.
Inasmuch as we have determined that Simnick is not subject to
lifetime community supervision because § 83-174.03 was not
in effect at the time of his offense, the issue with respect to his
plea is moot and we do not address it.
CONCLUSION
For the reasons discussed, we overrule the State’s motion to
dismiss the petition for further review. We affirm that portion
of the judgment of the Court of Appeals affirming Simnick’s
conviction; but we reverse that portion of the judgment which
affirms the sentence of lifetime community supervision by the
Office of Parole Administration upon Simnick’s release from
incarceration or civil commitment, and we remand the cause to
the Court of Appeals with directions to vacate that portion of
the sentence and remand to the district court with directions to
resentence Simnick in accordance with this opinion.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
AShby v.S tAte 	509
Cite as 279 Neb. 509
mAtthew L. A shby, individuALLy, And m.A., A minor ,
by And through mAtthew L. A shby, his fAther
And next friend, AppeLLAnts , v. stAte of
nebrAskA et AL., AppeLLees.
779 N.W.2d 343
Filed March 5, 2010. 	No. S-08-1274.
1. Judgments: Appeal and Error. An appellate court determines questions of law
independently of the determination reached by the lower court.
2. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and the court gives that party the benefit of all
reasonable inferences deducible from the evidence.
4. Tort Claims Act: Proof. to recover in a negligence action brought under the
Statet ort Claims Act, Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2003), a
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach
of such duty, causation, and damages.
5. Negligence. the threshold issue in any negligence action is whether the defend-
ant owes a legal duty to the plaintiff.
6. Negligence: Words and Phrases. the law defines a duty as an obligation, to
which the law will give recognition and effect, to conform to a particular standard
of conduct toward another.
7. Negligence. the question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
8. Statutes. In the absence of ambiguity or constitutional defect, courts must give
effect to statutes as they are written.
9. Negligence. Absent a duty, a negligence claim fails.
10. Constitutional Law: Actions. In a suit under 42 U.S.C. § 1983 (2006), the
first inquiry is whether the plaintiff has been deprived of a right secured by the
Constitution and laws within the meaning of § 1983.
11. Constitutional Law: Public Officers and Employees: Immunity: Liability.
When a plaintiff sues a state official, a court must first analyze whether the plain-
tiff has sued the official in his or her official or individual capacity for purposes
of state sovereign immunity. If the court determines that a state official has been
sued in his or her individual capacity, the court can address the official’s qualified
immunity from civil damages.t hat inquiry focuses not on whether the official
has acted in his or her individual capacity, but on whether the official’s conduct
violates clearly established statutory or constitutional rights of which a reason-
able person would have known.
12. Conspiracy: Words and Phrases. A civil conspiracy is a combination of two or
more persons acting in concert to accomplish an unlawful or oppressive object, or
a lawful object by unlawful or oppressive means.
13. Conspiracy: Proof. A party does not have to prove a civil conspiracy by
direct evidence of the acts charged. It may be proved by a number of indefinite
acts, conditions, and circumstances which vary according to the purpose to be
accomplished.
14. Actions: Conspiracy. A civil conspiracy is only actionable if the alleged con-
spirators actually committed some underlying misconduct.
15. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribu-
nal to subject and bind a particular person or entity to its decisions.
16. Due Process: Jurisdiction: States. before a court can exercise personal juris-
diction over a nonresident defendant, the court must first determine whether
the long-arm statute is satisfied. If the long-arm statute is satisfied, the second
question is whether minimum contacts exist between the defendant and the forum
state for personal jurisdiction over the defendant without offending due process.
17. Jurisdiction: States. Depending on the facts of a case, a court can exercise
two types of jurisdiction: general personal jurisdiction or specific personal
jurisdiction.
18. ____: ____. If the defendant’s contacts are neither substantial nor continuous and
systematic, but the cause of action arises out of or is related to the defendant’s
contact with the forum, a court may assert specific jurisdiction over the defend-
ant, depending on the quality and nature of such contact.
510 	279N ebRASkAR ePORtS

19. Due Process: Jurisdiction: States. Due process for personal jurisdiction over
a nonresident defendant requires that the plaintiff allege specific acts by the
defendant which establish that the defendant had the necessary minimum contacts
before a Nebraska court can exercise jurisdiction over a person.
Appeal from the District Court for Lancaster County: kAren
b. fLowers, Judge. Affirmed.
herbert J. Friedman and Danielh . Friedman, of Friedman
Law Offices, for appellants.
Jonb runing, Attorney General, and Michael J. Rumbaugh
for appellees State of Nebraska and Mary Dyer.
Susank 	ubert 	Sapp 	and 	Stanton 	N.b 	eeder, 	of 	Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appellees
Monicat aylork ilmer, Douglase ricb lack, andt ammy Norris
black.
Milton A.k atskee and Melvin R.k atskee, ofk atskee,
henatsch & Suing, for appelleese state of Michael Washburn
ande rickson & Sederstrom, P.C.
Waltere . Zink II and Amanda A. Dutton, ofb aylor,
evnen, Curtiss, Grimit & Witt, L.L.P., for appelleeb ryant A.
Whitmire.
heAvicAn, c.J., connoLLy, gerrArd, stephAn, mccormAck,
and miLLer-L ermAn, JJ.
connoLLy, J.
SUMMARy
Matthew L. Ashby is the biological father of M.A., born in
January 2004. Ashby never married M.A.’s mother, Monica
taylork ilmer, and she never listed Ashby as M.A.’s father on
the birth certificate.b ut Ashby registered with the biological
father registry within the statutory period to claim paternity.1
before the period expired, however, the State of Nebraska,
acting through adoption specialist Mary Dyer, allowed the
1 See Neb. Rev. Stat. § 43-104.04 (Reissue 2004).
AShby v.S tAte 	511
Cite as 279 Neb. 509

prospective adoptive parents, Douglase ricb lack andt ammy
Norrisb lack, to take M.A. to Alabama. Ashby claims that the
State and Dyer acted negligently and violated his due process
rights in allowing M.A. to leave the state while Ashby could
still assert paternity.t he State disagrees. It contends that Dyer
had met all the requirements under Nebraska law and the
Interstate Compact on the Placement of Children (ICPC).2
Ashby also brings claims againstk ilmer; theb lacks; the
blacks’ attorney in Alabama,b ryant A. Whitmire; the estate
ofk ilmer’s attorney in Nebraska, Michael Washburn; and
Washburn’s former law firm,e rickson & Sederstrom, P.C.h e
claims that all parties knew that he would contest the adop-
tion and that they attempted to complete the adoption without
informing him. Ashby sued the defendants for civil conspiracy,
false imprisonment, constructive fraud, misrepresentation, and
breach of fiduciary duty. Ashby also suedk ilmer’s parents and
the agency that facilitated the adoption, but those claims were
dismissed and are not appealed.
the defendants moved for summary judgment, which the
district court granted. Ashby, individually and on behalf of
M.A., appeals, and we affirm.
FACtS
m.A.’s birth And A doption
Ashby andk ilmer separated shortly after M.A.’s concep-
tion.b efore their separation,k ilmer informed Ashby that she
was pregnant and was considering adoption. Ashby told her
that if she did not want to raise the child, he would, and that
he would not relinquish his parental rights or consent to an
adoption.b efore M.A.’s birth, however, he did not register with
the biological father registry to receive notice of any intended
adoption, nor did he give notice that he objected to an adoption
and intended to claim paternity.3t he two did not see each other
or speak again until after the child was born.
kilmer contacted a private adoption agency and, through
the agency, selected theb lacks, a married couple living in
2 Neb. Rev. Stat. §§ 43-1101 and 43-1102 (Reissue 2008).
3 See Neb. Rev. Stat. §§ 43-104.01(2) and 43-104.03 (Reissue 2004).
512 	279N ebRASkAR ePORtS

Alabama, to adopt her child.t he day after M.A.’s birth,
theb lacks came to Nebraska, and about 2 weeks later, they
returned to Alabama with M.A.t hey commenced adoption
proceedings in that state.
Washburn 	representedk 	ilmer 	in 	the 	private 	adoption.
because theb lacks lived out of state, Dyer helped in the adop-
tion. Dyer is an adoption specialist with the Department of
health andh uman Services and the person charged with assist-
ing out-of-state adoptions under Nebraska’s ICPC. According
to Dyer, she approves the removal of children from Nebraska
for adoption placement in other states. She approves each
placement by filling out a form and then forwarding the paper-
work approving the placement to her counterpart in the state
receiving the child. Dyer stated that she could prevent a child
from being placed in another state.
Dyer stated that because this was a private adoption, the
State has no responsibility to determine whether a putative
father has filed a notice of intent to claim custody. According
to her, when a State ward is adopted, the State would pre-
pare the adoption paperwork and would check the biologi-
cal father registry.b ut because this was a private adoption,
Dyer never checked to confirm whether Ashby had registered
with the biological father registry or had received notifica-
tion of the proposed adoption. She noted that even if she had
checked, at the time she approved the placement, Ashby had
still not registered.
Dyer testified that the biological mother’s attorney carries
the burden to check the registry in private adoptions. Dyer
acknowledged that the publication notice she received from
Washburn put her on notice that Ashby had until February 12,
2004, to register for paternity.b ut she claims that because the
paperwork also indicated that Washburn had mailed a regis-
tered letter to Ashby on January 8, 2004, Ashby perhaps had
only 5 business days after January 8 to register. Although she
acknowledged that her file lacked a receipt from the letter and
that she had no proof that Ashby had actually received the let-
ter, she stated that she had no reason to doubt that Washburn
had actually contacted Ashby by mail. Dyer also acknowledged
that Washburn had indicated that Ashby was unwilling to agree
AShby v.S tAte 	513
Cite as 279 Neb. 509

to the adoption and would not sign the consent to the adop-
tion. She admitted that she normally required a “no claim of
paternity” certificate before allowing children to leave the state
when a biological father has not signed the documents allow-
ing the adoption.b ut she had not received, nor did she require,
such certificate from Washburn.
because Dyer knew that Ashby still had time to assert
his paternity, she had theb lacks sign an at-risk placement
notice that required them to return the child to Nebraska if
Ashby asserted his paternity.4 Dyer testified that although she
approves the placement of children outside the state, her duties
required only that she execute an at-risk placement form. She
contended her duties did not require her to determine whether
the biological father has registered with the Department of
health andh uman Services’ vital records section.y et, she
acknowledged that she has the ultimate power to determine
whether a child born in Nebraska may leave the state for a
preadoption placement.
A shby’s pAternity And custody order
before M.A.’s birth, Washburn attempted to contact Ashby
by mail about the pending adoption. Washburn allegedly sent
a letter to Ashby on January 8, 2004, but the record indicates
that he never received a return receipt confirming that Ashby
received the letter. Ashby claims that Washburn sent the letter
to the wrong address and that he did not receive it until January
29, 8 days after M.A.’s birth.b ut Washburn also published
notice of the birth, and under the statutes in effect at the time,
Ashby had until February 12 to register. On January 30, the
day after he received Washburn’s letter, Ashby registered and
filed for custody.
On April 21, 2004, the Madison County Court held a custody
hearing.t he court’s order stated that Ashby had timely filed
his notice of intent to claim paternity and that he was the bio-
logical father of the child, and it granted him custody. At that
time, Dyer contacted the Alabama ICPC office and informed it
4 See Neb. Rev. Stat. § 43-104.15 (Reissue 2008).
514 	279N ebRASkAR ePORtS

that under the at-risk placement agreement, theb lacks had to
return M.A. to Nebraska.t heb lacks refused.
Ashby, armed with the custody order, went to Alabama
to have it enforced.t he Alabama court, however, eventually
declined to enforce the custody order because Ashby had
failed to include theb lacks as parties to the action as required
by the Uniform Child Custody Jurisdiction ande nforcement
Act5 and Parentalk idnapping Prevention Act of 1980.6t he
Alabama court concluded that the Nebraska judgment was
valid as to Ashby’s paternity but not valid as to the custody
determination. So it did not order theb lacks to return M.A. to
Nebraska.7 It concluded, however, that M.A.’s custody should
be determined in Nebraska after Ashby included theb lacks as
parties in the custody case. It also stayed the adoption proceed-
ings in Alabama until that happened.t he record fails to show
that Ashby took any further action to obtain custody. And in
February 2009, Ashby voluntarily relinquished his parental
rights in a settlement with theb lacks.t he settlement, however,
reserved his claims in this suit filed in the Lancaster County
District Court.
A shby’s stAte court cLAims And
district court’s disposition
In the Lancaster County District Court action, Ashby alleged
that the State, through its employee Dyer, negligently allowed
M.A. to leave Nebraska before determining whether Ashby
was properly notified of the adoption. And he alleges that
Dyer’s actions deprived him of procedural and substantive
due process rights under 42 U.S.C. § 1983 (2006). Ashby also
claimed that (1) all the defendants conspired to violate his civil
rights and deprive him of a parental relationship with his son;
(2) theb lacks falsely imprisoned M.A.; and (3) Dyer,k ilmer,
5 See Ex parte D.B. and T.B., 975 So. 2d 940 (Ala. 2007), affirming D.B.
v. M.A., 975 So. 2d 927 (Ala. Civ. App. 2006). See, also, Neb. Rev. Stat.
§§ 43-1226 to 43-1266 (Reissue 2004).
6 See 28 U.S.C. § 1738A and 42 U.S.C. § 663 (2006).
7 Ex parte D.B. and T.B., supra note 5.
AShby v.S tAte 	515
Cite as 279 Neb. 509

theb lacks, Whitmire, Washburn, ande rickson & Sederstrom
engaged in constructive fraud, misrepresentation, and breach of
fiduciary duty.h e sought not the return of his son, but compen-
satory and punitive damages.
In two separate orders, the district court granted summary
judgment tok ilmer, theb lacks, Whitmire, Washburn, and
erickson & Sederstrom. In April 2008, the court denied Ashby’s
request that the court order Whitmire to produce his file on
M.A. And in November 2008, the court granted summary judg-
ment to the State and Dyer. Ashby now appeals.
Regarding the negligence claim against the State, the court
concluded that (1) Dyer had no duty to check the biological
father registry before allowing M.A. to leave Nebraska and
(2) the State’s only duty was to ensure that it met the ICPC
requirements, which Dyer had done.b ecause the State had
no duty, it could not be negligent.t he court also found that
res judicata barred Ashby’s § 1983 claim against Dyer in her
official capacity because a federal district court had decided the
claim against Ashby.8 And, because the evidence indicated that
Dyer did not act in any capacity other than her official capac-
ity, the court dismissed Ashby’s § 1983 claim against her in her
individual capacity.
Regarding the civil conspiracy claim, the court found that
the evidence failed to show any agreement between the defend-
ants to deprive Ashby of the opportunity to assert his parental
rights.t o the contrary, the court found that Ashby had estab-
lished his paternity in both Nebraska and Alabama courts
before theb lacks finalized the adoption.t he court also found
Ashby’s false imprisonment claim failed because theb lacks
had an order from an Alabama court granting them custody.
the court found all other claims meritless and dismissed
the case.
A shby’s federAL court cLAims And federAL
district court’s disposition
In the federal case, Ashby filed a § 1983 lawsuit against
Dyer,k ilmer, theb lacks, Whitmire, Washburn,e rickson &
8 See Ashby v. Dyer, 427 F. Supp. 2d 929 (D. Neb. 2006).
516 	279N ebRASkAR ePORtS

Sederstrom, and other defendants.h e claimed that all the
defendants, acting under the color of state law, conspired to
deprive him of due process by removing M.A. to another state
for adoption.h e also made state law claims of civil conspiracy,
negligence, fraud, misrepresentation, and breach of fiduciary
duty against all the defendants and a false imprisonment claim
against theb lacks.
In April 2006, the federal court dismissed, with prejudice,
the § 1983 claim against Dyer in her official capacity because
Ashby was only requesting monetary damages. Regarding
the claim against Dyer in her individual capacity, the court
concluded that Ashby’s allegation failed to state a § 1983
claim based on a civil conspiracy.t he court concluded that a
plaintiff’s allegations that a state official acted negligently are
insufficient to state a constitutional claim.9 And, assuming that
Dyer knew of Ashby’s paternity claim, Ashby failed to allege
that she shared this information. So there was not a “‘meet-
ing of the minds’” between Dyer and the other defendants
“to violate [Ashby’s] constitutional rights.”10b ecause Dyer’s
allegations failed to show a state action, the federal court con-
cluded that it lacked jurisdiction and dismissed the claims. It
dismissed with prejudice the § 1983 claims against Dyer, in
her official capacity, and against the remaining defendants.
It apparently dismissed without prejudice the § 1983 claim
against Dyer, in her individual capacity, and Ashby’s remain-
ing state law claims.
ASSIGNMeNtSOFeRROR
Ashby alleges that the district court erred in (1) granting
summary judgment to the State on his negligence claim; (2)
finding that res judicata barred his § 1983 claim against Dyer,
in her individual capacity; (3) granting summary judgment
tok ilmer, theb lacks, Whitmire, Washburn, ande rickson &
Sederstrom on his civil conspiracy claim; and (4) denying his
motion to compel Whitmire to answer discovery questions.
9 Id.
10 Id. at 934.
AShby v.S tAte 	517
Cite as 279 Neb. 509

StANDARDOF RevIeW
[1] We determine questions of law independently of the
determination reached by the lower court.11
[2,3] Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.12 In
reviewing a summary judgment, we view the evidence in the
light most favorable to the party against whom the judgment
was granted, and we give that party the benefit of all reason-
able inferences deducible from the evidence.13
ANALySIS
negLigence cLAim AgAinst the stAte
[4-7] Ashby alleges that the district court erred in find-
ing that the State owed no duty to Ashby.t o recover in a
negligence action brought under the Statet ort Claims Act,14
a plaintiff must show a legal duty owed by the defendant to
the plaintiff, a breach of such duty, causation, and damages.15
the threshold issue in any negligence action is whether the
defendant owes a legal duty to the plaintiff.16t he law defines
a duty as “an obligation, to which the law will give recogni-
tion and effect, to conform to a particular standard of conduct
toward another.”17t he question whether a legal duty exists for
11 See Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161, 745 N.W.2d 317
(2008).
12 Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009). See,
also, Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007).
13 Wilke, supra note 12.
14 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2003).
15 See Ehlers v. State, 276 Neb. 605, 756 N.W.2d 152 (2008).
16 Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
17 Munstermann v. Alegent Health, 271 Neb. 834, 845, 716 N.W.2d 73, 83
(2006).
518 	279N ebRASkAR ePORtS

actionable negligence is a question of law dependent on the
facts in a particular situation.18
the alleged duty Ashby places on the State does not come
from a single source. Instead, we understand Ashby’s argument
to be that based upon a combination of constitutional and statu-
tory law, the State had a duty to confirm whether he had con-
sented to the adoption, or that theb lacks did not need his con-
sent, before the State approved M.A.’s removal from Nebraska.
Ashby contends that the State is a “‘sending agency’” under the
ICPC in effect at the time of M.A.’s removal.19 (the ICPC was
amended in 2009.)20 Ashby alleges that as a sending agency,
the State must comply with every requirement in the ICPC and
with Nebraska’s adoption statutes. Ashby also asserts that as a
sending agency under the ICPC, the State “‘retain[s] jurisdic-
tion over the child sufficient to determine all matters in relation
to the custody, supervision, care, treatment and disposition of
the child which it would have had if the child had remained in
the sending agency’s state . . . .’”21
Ashby argues that these statutes require the State to satisfy
the consent laws for in-state adoptions before permitting a
child to be placed with out-of-state adoptive parents.h e also
argues that the State must comply with Nebraska adoption law
to protect his constitutional parental right to care for and have
custody of his child.22 Ashby, however, does not challenge the
constitutionality of any statute.
We agree with Ashby that in a private adoption, Nebraska is
a sending agency under the ICPC.t he ICPC defines a sending
agency as “a party state, officer or employee thereof; a sub-
division of a party state, or officer or employee thereof; a court
of a party state; a person, corporation, association, charitable
18 Fickle, supra note 16.
19 Reply brief for appellants at 7.
20 2009 Neb. Laws, L.b. 237, § 3.
21 Reply brief for appellants at 7. See § 43-1101, art.v (a).
22 See, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.e d. 2d 49
(2000); Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.e d. 2d
599 (1982).
AShby v.S tAte 	519
Cite as 279 Neb. 509

agency or other entity which sends, brings, or causes to be sent
or brought any child to another party state.”23
the State argues that in a private adoption, the sending
agency under the ICPC is the birth mother, not the State. We
agree that the birth mother is a sending agency.24b ut we also
believe that in a given placement, more than one individual or
entity could be a sending agency.h ere,k ilmer was a send-
ing agency because she initiated and consented to placing
M.A. with theb lacks.b ut the State, through Dyer, was also a
sending agency. Dyer facilitated and approved the removal of
M.A. from Nebraska, causing M.A.’s placement in Alabama.
According to her own testimony, Dyer had the power to refuse
to authorize removal of M.A. from Nebraska. So we do not
agree with the State’s argument thatk ilmer was the sole per-
son responsible for allowing the removal of M.A.t he defini-
tion of a sending agency appears broad enough to include any
individual or entity that causes a child to be moved interstate,
even if that means there are multiple sending agencies in a
single adoption. We conclude that the State is a sending agency
under the ICPC.
but even if the State is a sending agency, for it to be neg-
ligent, it must have breached a duty owed to Ashby. Ashby
asserts that the statutes require the State to determine whether
he had consented to the adoption or whether his consent was not
required before allowing M.A. to leave Nebraska.t o address
this argument, we look to Nebraska’s paternity statutes.
When a child is born out of wedlock and the biological
mother desires to relinquish her rights to the child, the bio-
logical mother’s attorney or the adoption agency facilitating the
adoption must attempt to notify the biological father or possible
biological fathers. As outlined in Neb. Rev. Stat. § 43-104.08
(Reissue 2004):
Whenever a child is claimed to be born out of wedlock
and the biological mother contacts an adoption agency
23 § 43-1101, art. II(b).
24 Cornhusker Christian Ch. Home v. Dept. of Soc. Servs., 229 Neb. 837, 429
N.W.2d 359 (1988).
520 	279N ebRASkAR ePORtS

or attorney to relinquish her rights to the child . . . the
agency or attorney contacted shall attempt to establish
the identity of the biological father and further attempt
to inform the biological father of his right to execute a
relinquishment and consent to adoption, or a denial of
paternity and waiver of rights . . . .
the notice must be served in advance of the child’s birth,
whenever possible, to allow the biological father to comply
with the registration requirements. And the notice must inform
the putative father that he may have the right to file a notice of
objection and intent to obtain custody.25
the biological father can be notified by registered or certi-
fied mail, restricted delivery, return receipt requested.26 Or,
“[i]f the agency or attorney representing the biological mother
is unable through reasonable efforts to locate and serve notice
on the biological father or possible biological fathers as con-
templated in sections 43-104.12 and 43-104.13, the agency or
attorney shall notify the biological father or possible biological
fathers by publication.”27 So, in a private adoption, regardless
of how the attorney or adoption agency attempts to notify a
biological father, the attorney or agency must exercise dili-
gence to “identify and give actual or constructive notice to the
biological father.”28
but Nebraska’s statutes do not prohibit placement with
adoptive parents before notice is perfected. Instead, “[i]f the
biological father [is] not given actual or constructive notice
prior to the time of placement,” the prospective adoptive par-
ents are required to sign an at-risk placement form.29t he form
“give[s] the adoptive parents a statement of legal risk indicat-
ing the legal status of the biological father’s parental rights as
of the time of placement.”30 In signing the form, the adoptive
25 Neb. Rev. Stat. §§ 43-104.13 and 43-104.14 (Reissue 2004).
26 Neb. Rev. Stat. § 43-104.12 (Reissue 2004).
27 § 43-104.14(1).
28 Neb. Rev. Stat. § 43-104.16 (Reissue 2008).
29 § 43-104.15.
30 Id.
AShby v.S tAte 	521
Cite as 279 Neb. 509

parents “are acknowledging their acceptance of the placement,
notwithstanding the legal risk.”31
here, Washburn attempted to, and eventually did, notify
Ashby of the proposed adoption.b ut the notification took
place after M.A.’s birth. As required by statute, Dyer approved
placement of M.A. with theb lacks only after they signed an
at-risk placement form.t he form explicitly stated that “in the
event the birth father comes forward, or asse[r]ts his interest
in the subject child, even after the time of placement, the State
of Alabama may require the undersigned to return the child to
the State of Nebraska for further determination on the rights
of the putative father.” Nebraska’s statutes require the birth
mother’s attorney or adoption agency, not the State, to notify
the biological father of a proposed adoption. More important,
these statutes specifically permit the State to approve out-of-
state placement with prospective adoptive parents without the
biological father’s consent or notification if the prospective
adoptive parents have signed an at-risk placement form.
Contrary to Ashby’s claims, the State had no obligation
under any of the paternity statutes or the ICPC to confirm
that Ashby consented to the adoption before allowing M.A.
to leave the state. We agree that the State, as a sending
agency, was required to ensure ICPC compliance before
allowing M.A. to leave Nebraska.32b ut nothing in the ICPC
requires the State to ensure that a possible biological father
has consented to an adoption or has not claimed paternity
before approving a child’s placement in a prospective adop-
tive home.
[8] Ashby contends that an at-risk placement form provides
an inadequate substitute for Ashby’s notice of, or consent to,
the adoption.t o reach that conclusion, Ashby would have us
read into § 43-104.15 a different requirement for out-of-state
at-risk placements than for in-state at-risk placements.b ut in
the absence of ambiguity or constitutional defect, courts must
31 Id.
32 § 43-1101, art. III(a) and (b).
522 	279N ebRASkAR ePORtS

give effect to statutes as they are written.33 And Ashby has not
challenged the constitutionality of § 43-104.15 or claimed that
it is ambiguous. Section 43-104.15 permitted the at-risk place-
ment with theb lacks, and we find nothing in either the ICPC
or Nebraska law that placed a duty on the State to confirm that
Ashby had first consented to the adoption.
Ashby also argues, however, that when reading Nebraska’s
adoption laws in pari materia with the paternity statutes,
the statutes require consent for the adoption before mak-
ing an out-of-state placement.h e points to Neb. Rev. Stat.
§ 43-104(1) (Reissue 2004), which states “no adoption shall
be decreed unless written consents” are executed by “both the
mother and father of a child born out of wedlock.”h ere, how-
ever, the issue focuses on the placement of a child in another
state. Ashby’s argument confuses “adoption” with “place-
ment.” Placements occur before an adoption, and Nebraska’s
statutes permit both in-state and out-of-state placements with-
out prior consent.
[9] In assisting this out-of-state private adoption, the State
fulfilled its obligations. Despite Ashby’s arguments to the
contrary, the State did not have a duty to confirm that Ashby
consented to the adoption before allowing theb lacks to remove
M.A. from Nebraska. Absent a duty, a negligence claim fails.34
the district court did not err in granting summary judgment to
the State.
§ 1983 cLAim AgAinst dyer
In addition to his state court lawsuit, Ashby filed a nearly
identical lawsuit against Dyer and the other defendants in
federal court. In the federal lawsuit, Ashby alleged that Dyer,
acting under the color of state law, conspired with the other
defendants to deprive Ashby of due process by removing his
son from Nebraska to Alabama for adoption.
33 See, Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d
461 (2003); City of Omaha v. Kum & Go, 263 Neb. 724, 642 N.W.2d 154
(2002).
34 See Fickle, supra note 16.
AShby v.S tAte 	523
Cite as 279 Neb. 509

the federal court dismissed the lawsuit in April 2006. In
evaluating Ashby’s § 1983 claim, the federal court held that
because Ashby sought only monetary damages from Dyer, his
lawsuit against her in her official capacity was barred by the
11th Amendment.35t he federal court also recognized that Dyer
had failed to affirmatively allege a qualified immunity defense
and addressed the claims against her in her individual capacity
on the merits.
the federal court then identified what a plaintiff must show
for a § 1983 claim based on civil conspiracy, and it concluded
Ashby’s allegations failed to state a claim. Ashby claimed
only that Dyer had allowed M.A. to leave the state without
confirming whether Ashby’s paternity had been determined.
And he claimed that Dyer did not rescind her permission for
M.A. to leave the state once Ashby filed his notice of intent
to claim paternity.t he federal court held that Ashby’s allega-
tions regarding Dyer’s actions amounted only to negligence,
which cannot form the basis of a constitutional tort claim.36
Furthermore, the federal court found that even if Dyer knew
that Ashby was claiming paternity, Ashby did not allege that
she shared this information with the other defendants.
In this appeal, Ashby brought a § 1983 claim against
Dyer in her official and individual capacities.37 We agree
with the federal district court that sovereign immunity bars
Ashby’s § 1983 claim against Dyer, in her official capacity,
because he sought only money damages. We conclude that
the Lancaster County District Court properly dismissed the
§ 1983 claim against Dyer, in her official capacity, based upon
res judicata.
[10] Regarding Ashby’s claim against Dyer in her individual
capacity, he contends, restated, that Dyer violated his consti-
tutionally protected due process rights.h e argues that Dyer
allowed M.A. to leave the state without confirming whether
35 Ashby, supra note 8.
36 Id., citing Davis v. Fulton County, Ark., 90 F.3d 1346 (8th Cir. 1996). See,
also, Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L.e d. 2d 662
(1986).
37 See Holmstedt, supra note 11.
524 	279N ebRASkAR ePORtS

Ashby had consented to the adoption. In a suit under § 1983,
the first inquiry is whether the plaintiff has been deprived of
a right secured by the Constitution and laws within the mean-
ing of § 1983.38 As the federal court did, we will assume that
Ashby has articulated a parental right that the federal court
would protect. Section 1983, however, imposes liability for
violations of rights protected by the federal Constitution, not
for violations of duties of care arising out of tort law.39h ere,
as in the federal case, Ashby’s allegations against Dyer show,
at most, only negligent conduct. And the record fails to show
a deliberate indifference to Ashby’s constitutional rights. In
both cases, he claimed that Dyer failed to determine whether
he consented to the adoption before approving M.A.’s place-
ment with theb lacks. We, like the federal district court, con-
clude that allegations of negligence are insufficient to state a
constitutional tort claim and that the district court properly
dismissed Ashby’s § 1983 claim against Dyer in her indi-
vidual capacity.40
[11] We note, however, that the Lancaster County District
Court dismissed the § 1983 claim against Dyer, in her indi-
vidual capacity, because Ashby failed to show that she had
acted in her individual capacity.t he court’s holding, however,
confuses a state’s sovereign immunity with a state official’s
qualified immunity. When a plaintiff sues a state official, a
court must first analyze whether the plaintiff has sued the offi-
cial in his or her official or individual capacity for purposes
of state sovereign immunity.41 If the court determines that a
state official has been sued in his or her individual capacity,
the court can address the official’s qualified immunity from
civil damages.t hat inquiry focuses not on whether the offi-
cial has acted in his or her individual capacity, but on whether
the official’s conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have
38 West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L.e d. 2d 40 (1988).
39 See, Daniels, supra note 36; 15 Am. Jur. 2d Civil Rights § 69 (2000).
40 See Daniels, supra note 36.
41 See Holmstedt, supra note 11.
AShby v.S tAte 	525
Cite as 279 Neb. 509

known.42h ere, Ashby sued Dyer in her individual capacity,
so whether she acted in her individual capacity is irrelevant.
thus, the court’s reasoning was incorrect; but again, we will
not reverse a proper result merely because the court’s decision
rested on the wrong reason.43
civiL conspirAcy cLAim AgAinst kiLmer , the bLAcks ,
whitmire , wAshburn, And erickson & sederstrom
Ashby asserts thatk ilmer, theb lacks, Whitmire, Washburn,
ande rickson & Sederstrom engaged in a conspiracy to inten-
tionally interfere and deprive Ashby of his right to have cus-
tody of M.A. and to establish a parental relationship with him.
We do not include Whitmire in our discussion because, as
addressed below, the district court lacked personal jurisdiction
over him.
[12-14] A civil conspiracy is a combination of two or
more persons acting in concert to accomplish an unlawful or
oppressive object, or a lawful object by unlawful or oppressive
means.44 A party does not have to prove a civil conspiracy by
direct evidence of the acts charged. It may be proved by a num-
ber of indefinite acts, conditions, and circumstances which vary
according to the purpose to be accomplished.45 It is, however,
necessary to prove the existence of at least an implied agree-
ment to establish conspiracy.46 Furthermore, a civil conspiracy
is only actionable if the alleged conspirators actually commit-
ted some underlying misconduct.47 And a conspiracy is not a
separate and independent tort in itself; rather, it depends upon
42 See, Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007); Shearer v.
Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999), disapproved on other
grounds, Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).
43 See, In re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004);
Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756
(2002).
44 See, Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009);
Four R Cattle Co. v. Mullins, 253 Neb. 133, 570 N.W.2d 813 (1997).
45 See Four R Cattle Co., supra note 44.
46 See id.
47 Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1
(2008).
526 	279N ebRASkAR ePORtS

the existence of an underlying tort.48 So without such underly-
ing tort, there can be no cause of action for a conspiracy to
commit the tort.49
Applying these principles, we turn to Ashby’s allegations
regarding the underlying tort—intentional interference with
his parental rights. Ashby contends that Nebraska recognizes a
cause of action for the intentional interference with a parent’s
right to custody. Specifically, that “the defendants could be
held liable for entering into a conspiracy with the goal of inter-
fering with Ashby’s right to establish a relationship with, and
custody of, his child.”50
We have held that parents may assert a cause of action
against a third party who wrongfully deprives them of their
parental rights.51 In Tavlinsky v. Ringling Bros. Circus,52 the
defendants operated a traveling circus that employed the plain-
tiffs’ 15-year-old son without their permission.t he defendants’
knowledge of the son’s minor status and failure to obtain the
parents’ consent for employing him were sufficient to establish
their liability.b ut we remanded the cause to determine if the
parents had ratified the employment, and thereby waived the
claim, by accepting money from the son’s employment with
the defendants.
Also, Neb. Rev. Stat. § 28-316 (Reissue 2008) provides a
criminal sanction for interfering with a legal guardian’s custody
of a minor child. Similarly, the Restatement (Second) oft orts
§ 70053 recognizes that a parent legally entitled to a child’s
custody may recover against a person who deprives him or her
of custody. Under both Tavlinsky and § 700 of the Restatement,
however, the parent seeking relief must show that he or she is
legally entitled to custody.
48 Id.
49 Hatcher v. Bellevue Vol. Fire Dept., 262 Neb. 23, 628 N.W.2d 685
(2001).
50 brief for appellants at 38.
51 Tavlinsky v. Ringling Bros. Circus, 113 Neb. 632, 204 N.W. 388 (1925).
52 Id.
53 Restatement (Second) oft orts § 700 (1977).
AShby v.S tAte 	527
Cite as 279 Neb. 509

however, remember that Ashby was not entitled to custody
before April 21, 2004, when he received a custody order from
the Madison County Court.b ut Ashby’s allegations focus on
the defendants’ actions before he obtained the custody order.
And after April 21, the record shows that theb lacks success-
fully exercised their right to appeal.54 Ashby was a party to
the appeal, but because Ashby’s Nebraska custody order did
not comply with the requirements of Alabama’s or Nebraska’s
Uniform Child Custody Jurisdiction ande nforcement Act55
or the Parentalk idnapping Prevention Act of 1980,56 the
Supreme Court of Alabama refused to enforce the Nebraska
custody order.57 Contrary to Ashby’s allegations, the defend-
ants, in exercising their lawful right to appeal, were not
wrongfully depriving Ashby of custody. And his allegations
do not support a claim that the defendants’ actions after
April 21 showed an implied agreement to deprive him of
his parental rights. In sum, the defendants did not wrong-
fully interfere with Ashby’s ability to establish and assert his
parental rights.
Ashby’s allegations are more accurately characterized as
attempting to state a claim for interference with his right to
establish paternity and obtain custody.b ased on the language
of § 700,58 however, we do not believe that a biological father
can assert a claim for intentional interference with his parental
rights before gaining a custody order.59b ecause Ashby cannot
allege that he was legally entitled to custody at the time of
the alleged interference, he cannot allege facts showing this
required element of intentional interference with a parental
relationship. And because he cannot allege facts that would
satisfy the required elements of the tort, he cannot establish
54 See Ex parte D.B. and T.B., supra note 5.
55 See, Ala. Code §§ 30-3b-101 to 30-3b-405 (West Cum. Supp. 2009);
§§ 43-1226 to 43-1266.
56 See 28 U.S.C. § 1738A and 42 U.S.C. § 663.
57 See Ex parte D.B. and T.B., supra note 5.
58 Restatement (Second) oft orts, supra note 53.
59 but see Kessel v. Leavitt, 204 W.v a. 95, 511 S.e.2d 720 (1998).
528 	279N ebRASkAR ePORtS

a conspiracy claim based upon that tort.60 Moreover, as of
March 30, 2004, Ashby was actively litigating in Alabama
whether his custody order was, in fact, valid and enforce-
able.61t hus, the district court properly granted summary
judgment tok ilmer, theb lacks, Washburn, ande rickson
& Sederstrom.
personAL Jurisdiction over whitmire
Whitmire, theb lacks’ attorney, argues that the district court
lacked personal jurisdiction over him because there were insuf-
ficient minimum contacts between him and Nebraska.h e con-
tends that summoning him to court in Nebraska would offend
traditional notions of fair play and substantial justice. Ashby
contends that the issue is not properly before us because the
district court did not rule on personal jurisdiction and Whitmire
did not raise the issue separately through a cross-appeal.b ut
a review of the record shows that Whitmire moved to dismiss
for lack of personal jurisdiction and for failure to state a claim
for which relief can be granted, and he submitted no evidence
at the hearings on the motion.t he other defendants all sub-
mitted evidence on supporting their motions to dismiss that
converted the motions into summary judgments62; Whitmire
did not.63 Nor did he seek any affirmative relief or defend on
the merits.64 And we have previously held that a court should
determine whether it has personal jurisdiction before consider-
ing whether a complaint fails to state a cause of action under
Neb. Ct. R. Pldg. § 6-1112(b)(6).65 Only if the court rejects
the jurisdictional objections should it address the objection
that the complaint fails to state a claim upon which it can
grant relief.66 So we believe that the district court should have
60 Hatcher, supra note 49.
61 See Ex parte D.B. and T.B., supra note 5.
62 See Nebraska Coalition for Ed. Equity, supra note 12.
63 See 5 John P. Lenich, Nebraska Civil Procedure § 11.5 (2008).
64 See Neb. Rev. Stat. § 25-516.01(2) (Reissue 2008).
65 Holmstedt, supra note 11.
66 Id.
AShby v.S tAte 	529
Cite as 279 Neb. 509

determined whether it had personal jurisdiction over Whitmire
before addressing the merits of the case.
[15,16] Personal jurisdiction is the power of a tribunal
to subject and bind a particular person or entity to its deci-
sions.67b efore a court can exercise personal jurisdiction
over a nonresident defendant, the court must first determine
whether the long-arm statute is satisfied.68 If the long-arm
statute is satisfied, the second question is whether minimum
contacts exist between the defendant and the forum state for
personal jurisdiction over the defendant without offending
due process.69
Our inquiry begins with Nebraska’s long-arm statute, Neb.
Rev. Stat. § 25-536 (Reissue 2008). It extends Nebraska’s juris-
diction over nonresidents having any contact with or maintain-
ing any relation to this state as far as the federal Constitution
permits.70 So we look to whether a Nebraska court’s exer-
cise of jurisdiction over Whitmire would be consistent with
due process.71
First, we address whether Whitmire had sufficient minimum
contacts with Nebraska necessary to satisfy due process.72
Due process requires that a defendant’s minimum contacts
with the forum state be such that “‘“maintenance of the
suit does not offend ‘traditional notions of fair play and
substantial justice.’”’”73 We look at the quality and type of
Whitmire’s activities.
[17,18] Depending on the facts of a case, a court can exer-
cise two types of jurisdiction: general personal jurisdiction or
specific personal jurisdiction.74 General personal jurisdiction
67 S.L. v. Steven L., 274 Neb. 646, 742 N.W.2d 734 (2007).
68 See id. See, also, Kugler Co. v. Growth Products Ltd., 265 Neb. 505, 658
N.W.2d 40 (2003).
69 Kugler Co., supra note 68.
70 S.L., supra note 67.
71 Id.
72 Id.
73 Id. at 651-52, 742 N.W.2d at 741.
74 Id.
530 	279N ebRASkAR ePORtS

arises from the defendant’s “‘“‘continuous and systematic
general business contacts’”’” with the forum state.75 Ashby
does not claim that the court had general personal jurisdic-
tion over Whitmire. If the defendant’s contacts are neither
substantial nor continuous and systematic, but the cause of
action arises out of or is related to the defendant’s contact
with the forum, a court may assert specific jurisdiction over
the defendant, depending on the quality and nature of such
contact.76 Ashby contends that allegations of a civil conspiracy
involving Whitmire can support the exercise of specific per-
sonal jurisdiction.
In determining conspiracy liability, the actions of one
coconspirator are attributable to all coconspirators.77 So some
courts have reasoned that if through one of its members a
conspiracy inflicts an actionable wrong in one jurisdiction, the
other members should not be allowed to escape being sued
there by hiding in another jurisdiction.78 Under a coconspira-
tor theory of jurisdiction, the actions of one conspirator are
attributable to all the coconspirators for assessing jurisdic-
tional contacts.79
Ashby alleges that theb lacks, Whitmire’s clients and alleged
coconspirators, came to Nebraska and absconded with Ashby’s
son, interfering with Ashby’s parental relationship.h e con-
tends that although Whitmire never entered Nebraska, because
his alleged coconspirators committed acts in furtherance of the
conspiracy in Nebraska, he is subject to the jurisdiction of a
Nebraska court.
[19] We have not recognized whether a civil conspiracy
can support the exercise of personal jurisdiction. Nor are
75 Id. at 652, 742 N.W.2d at 741.
76 Id.
77 See Stillinger & Napier v. Central States Grain Co., Inc., 164 Neb. 458, 82
N.W.2d 637 (1957).
78 See Stauffacher v. Bennett, 969 F.2d 455 (7th Cir. 1992) (superseded by
Fed. R. Civ. P. 4(k)(2) as stated in Central States v. Reimer Express World
Corp., 230 F.3d 934 (7th Cir. 2000)).
79 See In re New Motor Vehicles Canadian Export, 307 F. Supp. 2d 145 (D.
Me. 2004).
AShby v.S tAte 	531
Cite as 279 Neb. 509

we inclined to do so at this time. Due process for personal
jurisdiction over a nonresident defendant requires that the
plaintiff allege specific acts by the defendant which establish
that the defendant had the necessary minimum contacts before
a Nebraska court can exercise jurisdiction over a person.80
Without minimum contacts, a Nebraska court cannot exer-
cise jurisdiction over Whitmire without violating his right to
due process.t he difficulty with establishing personal juris-
diction based on an alleged conspiracy is that it merges the
jurisdiction issue with the merits of the case. As noted by the
Seventh Circuit:
It would be more than awkward to postpone the jurisdic-
tional issue to the merits; it would dissolve the issue. If
the plaintiff won on the merits, the jurisdictional issue
would be automatically resolved in his favor, while if he
lost the defendant would waive the defense of personal
jurisdiction and take the judgment for its preclusive value
in subsequent suits.b ut to resolve the jurisdictional issue
in advance would require . . . an evidentiary hearing as
extensive as, and in fact duplicative of, the trial on the
merits—either that or permit a nonresident to be dragged
into court on mere allegations.81
Ashby’s allegations regarding Whitmire’s involvement in
the alleged conspiracy are insufficient to show minimal con-
tacts.h e focuses only on acts that took place in Alabama.
Ashby alleges that theb lacks’ removal of M.A. from Nebraska
is the central act that furthered the conspiracy.b ut regard-
ing Whitmire’s actions, Ashby claims only that Whitmire
made false representations to, and withheld information from,
the Alabama courts regarding M.A.’s paternity.h e makes
no allegations regarding Whitmire’s involvement with any of
the proceedings in Nebraska. And based upon these allega-
tions, we do not believe Whitmire’s connection to Nebraska
rises to the level that he should have anticipated being haled
80 See S.L., supra note 67. See, also, Internat. Shoe Co. v. Washington, 326
U.S. 310, 66 S. Ct. 154, 90 L.e d. 95 (1945).
81 Stauffacher, supra note 78, 969 F.2d at 459.
532 	279N ebRASkAR ePORtS

into court here.t o hold otherwise would, we believe, offend
notions of fair play and substantial justice, and would violate
due process.
Although the district court failed to make this determina-
tion, we conclude the record is sufficient to show that the court
improperly exercised personal jurisdiction over Whitmire.
discovery A rguments
because the court lacked personal jurisdiction, Ashby’s
assignment of error regarding his motion to compel Whitmire
to answer discovery questions is not before us. And while
Ashby also argues that theb lacks ande rickson & Sederstrom’s
designated attorney should be compelled to answer questions
regarding both Whitmire’s representation of theb lacks and
Washburn’s representation ofk ilmer, we do not consider issues
which Ashby argued but has not assigned.82
CONCLUSION
We conclude that the district court lacked jurisdiction over
Whitmire and that the district court properly dismissed Ashby’s
claims against the remaining defendants.
A ffirmed.
wright, J., not participating.
82 Vokal v. Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759 N.W.2d
75 (2009); Agena v. Lancaster Cty. Bd. of Equal., 276 Neb. 851, 758
N.W.2d 363 (2008).
stAte of nebrAskA ex reL. counseL for discipLine of
the nebrAskA supreme court, reLAtor , v.
dAvid L. nich , Jr ., respondent.
780 N.W.2d 638
Filed March 5, 2010. 	No. S-09-593.
Original action. Judgment of suspension.
heAvicAn, 	c.J., 	wright, 	connoLLy, 	gerrArd, 	stephAn,
mccormAck , and miLLer-L ermAn, JJ.
StAte exR eL.COUNS eLFORDIS . v.NIC h 	533
Cite as 279 Neb. 533