Kilgore v. Nebraska Dept. of Health & Human Servs.

of the ICC, Nebraska is acting solely as agent for Florida.
Accordingly, Florida retains jurisdiction over questions relat-
ing to the constitutionality of Leach’s sentence. Leach must
bring any claim regarding her sentence to the authorities of the
State of Florida. Nebraska is bound by the terms of the ICC,
and therefore, we lack jurisdiction over Leach’s petition for
habeas relief.
CONCLUSION
The 	judgment 	of 	the 	district 	court 	dismissing 	Leach’s
amended petition for habeas corpus is affirmed. The denial of
habeas corpus relief is jurisdictional, and without prejudice to
any avenue of relief Leach may pursue in Florida.
A ffirmed.
LuciLLe K iLgore , AppeLLee And cross -AppeLLAnt, v.
nebrAsKA depArtment of H eALtH And HumAn
services And tHe stAte of nebrAsKA,
AppeLLAnts And cross -AppeLLees ,
And L eeAnnA cArr And meLvin
WAsHington, AppeLLees.
763 N.W.2d 77
Filed March 27, 2009. 	No. S-08-481.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. ____: ____. Before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.
3. ____: ____. Notwithstanding whether the parties raise the issue of jurisdiction,
an appellate court has a duty to raise and determine the issue of jurisdiction
sua sponte.
4. Attorney Fees: Costs. Attorney fees, where recoverable, are generally treated as
an element of court costs.
5. Judgments: Final Orders: Attorney Fees: Costs: Appeal and Error. An award
of costs in a judgment is considered a part of the judgment. As such, a judgment
does not become final and appealable until the trial court has ruled upon a pend-
ing statutory request for attorney fees.
6. Final Orders: Appeal and Error. To be appealable, an order must satisfy the
final order requirements of Neb. Rev. Stat. § 25-1902 (Reissue 2008).
456 	277 NeBRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

7. ____: ____. Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the three types of
final orders which may be reviewed on appeal are (1) an order which affects a
substantial right in an action and which in effect determines the action and pre-
vents a judgment, (2) an order affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right made on summary appli-
cation in an action after a judgment is rendered.
8. Judgments: Final Orders. Neb. Rev. Stat. § 25-1301 (Reissue 2008) sets forth
two ministerial requirements for a final judgment: the rendition of a judgment and
the entry thereof.
9. Judgments: Records: Words and Phrases. Rendition of a judgment is defined
as the act of the court, or a judge thereof, in making and signing a written nota-
tion of the relief granted or denied in an action.
10. ____: ____: ____. entry of a judgment is defined as the act of the clerk of the
court in placing the file stamp and date upon the judgment.
11. Trial: Judgments: Records. The mere oral announcement of a judgment without
an entry on the trial docket is not the rendition of a judgment.
12. Final Orders. For a final judgment to exist, there must be an order that is both
signed by the court and file stamped and dated by the clerk of the court.
13. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during future proceedings.
Appeal from the District Court for Douglas County: mArLon
A. poLK, Judge. Appeal dismissed.
Jon Bruning, Attorney General, Stephanie Caldwell, and
Frederick J. Coffman for appellants.
Raymond R. Aranza and Leanne A. Gifford, of Scheldrup,
Blades, Schrock, Sand & Aranza, p.C., for appellee Lucille
kilgore.
H eAvicAn, c.J., WrigHt, connoLLy, gerrArd, stepHAn, and
mccormAcK, JJ.
mccormAcK, J.
NATURe OF CASe
In the underlying action, the court entered judgment in the
amount of $447,005 in favor of Lucille kilgore and against
the State of Nebraska and the Nebraska Department of Health
and Human Services (DHHS). DHHS and the State appeal. We
conclude that DHHS and the State’s appeal from the court’s
order was an appeal from a nonfinal order, because the court
kILGORe v. NeBRASkA DepT. OF HeALTH & HUMAN SeRvS. 	457
Cite as 277 Neb. 456

did not determine all the issues before it, including whether
kilgore was entitled to attorney fees.
BACkGROUND
In 2004, kilgore commenced this action against DHHS, the
Nebraska Department of Correctional Services (DCS), the State
of Nebraska, Leeanna Carr, and Melvin Washington, claiming
she was taken advantage of and manipulated into working
without pay. kilgore requested damages for pain and suffering,
past compensation, and attorney fees.
For over 30 years, kilgore performed the tasks of a full-
time juvenile parole services officer without receiving any
compensation. kilgore alleged that for over 30 years, she per-
formed a significant amount of the duties and responsibilities
of Washington, an employed parole officer. By 1983, kilgore
was working at least 70 hours per week and was doing most if
not all of Washington’s work. Some of the duties kilgore per-
formed for Washington included typing his reports, monitoring
the curfew of his parolees, and other administrative work at
Washington’s request. kilgore alleged that Washington took
advantage of her and that Carr, his supervisor, was aware of
this abuse.
In her complaint, causes of action Nos. 1, 2, and 6 were
directed at defendants DHHS, DCS, and the State. Cause of
action No. 1 was dismissed by summary judgment. kilgore
alleged in cause of action No. 2 that her equal protection rights
were violated, because she was not afforded the same treat-
ment as other employees that received compensation for their
services. In cause of action No. 6, kilgore alleged that she
was an employee pursuant to federal and state minimum wage
laws and is entitled to money damages equal to the salary paid
to Washington beginning from the year 2000 until the pres-
ent time.
Causes of action Nos. 4 and 5 were directed at only
Washington. kilgore alleged in cause of action No. 4 that
she was entitled to recover damages from Washington based
on unjust enrichment. And in cause of action No. 5, kilgore
alleged breach of contract.
Cause of action No. 3 was directed at both Washington and
Carr. kilgore alleged that Washington’s and Carr’s conduct
458 	277 NeBRASkA RepORTS

violated her constitutional rights under color of state law
and that she was entitled to recover damages, pursuant to 42
U.S.C. § 1983 (2000).
Cause of action No. 7 was directed at all of the defend-
ants. In that cause of action, kilgore claimed the defendants
breached their fiduciary duty to her.
Before a trial on the merits, the court, by written order, dis-
missed DCS as a defendant for lack of jurisdiction. On March
10 through 12, 2008, the court held a bench trial. On the first
day of trial, the court announced default judgment against
Washington and stated it would postpone its determination of
damages until after the trial.
Before closing arguments, DHHS and the State renewed
their motion for summary judgment in regard to any claim
against them brought under 42 U.S.C. § 1983, arguing that
any such claim is barred by sovereign immunity. Additionally,
DHHS and the State argued that any claim under the federal
equal pay Act (epA) was barred by sovereign immunity. The
trial court overruled this motion as to any claim pursuant to the
epA but granted the motion as to any claim against DHHS or
the State pursuant to § 1983. A review of the second amended
petition reveals that no claim for violations of § 1983 was
alleged against DHHS or the State.
Carr made an oral motion asking the court to dismiss the
cause of action alleging § 1983 violations against her. The
court granted this motion, concluding that kilgore failed to
produce sufficient evidence that Carr had violated kilgore’s
constitutional rights. Additionally, the trial court concluded that
Carr did not owe a fiduciary duty to kilgore. Thus, the court
announced a directed verdict in favor of Carr as to causes of
action Nos. 3 and 7.
After the close of evidence, the court announced its rul-
ing from the bench. The court concluded that kilgore effec-
tively became an employee in the year 1983 for purposes of
the federal Fair Labor Standards Act. Additionally, the court
determined that under the epA, kilgore did not receive pay
equal to that of what other males, including Washington, were
receiving. The court took the matter of damages under advise-
ment and stated that it was “not specifically including the
kILGORe v. NeBRASkA DepT. OF HeALTH & HUMAN SeRvS. 	459
Cite as 277 Neb. 456

second cause of action [equal protection violations] in its rul-
ing.” Before adjourning, the trial court also indicated it would
make a determination regarding attorney fees after calculating
kilgore’s damages.
In summary, the trial court announced its judgment as fol-
lows: (1) granted default judgment against Washington and in
favor of kilgore but did not determine the amount of damages;
(2) granted the State’s renewal of its motion for summary
judgment regarding any cause of action alleged against the
State based on § 1983, when in fact, no cause of action based
on § 1983 was alleged against the State, but overruled the
State’s motion as to the claim under the epA; and (3) granted
a directed verdict in favor of Carr relating to causes of action
Nos. 3 and 7.
On March 18, 2008, the court entered its written order. In
that order, the court stated, “[f]or the reasons stated on the
record in open court this Court found in favor of [kilgore] and
against [DHHS] and the State of Nebraska on her claims under
the theories of unjust enrichment, [the epA,] and Fair Labor
Standards Act.” The trial court awarded kilgore $447,005 in
damages. Our review of the second amended petition reveals
that kilgore did not assert a cause of action against DHHS
or the State based on unjust enrichment. The order was brief
and did not make any express determinations regarding the
finality of its judgment pursuant to Neb. Rev. Stat. § 25-1315
(Reissue 2008).
The written order (as opposed to the oral announcements)
did not mention any judgment regarding Washington or Carr,
and the court did not make any determination as to the issue of
attorney fees.
On March 21, 2008, kilgore filed an application for attorney
fees with the court, and a few days later, DHHS and the State
filed a motion for new trial. The court denied their motion, and
on May 1, DHHS and the State filed their notice of appeal, and
kilgore cross-appealed.
There is no docket sheet contained in the record. And from
our review of the record, we can find no written entries regard-
ing judgment against Washington, Carr, or on the issue of
attorney fees.
460 	277 NeBRASkA RepORTS

ASSIGNMeNTS OF eRROR
DHHS and the State argue that the trial court erred by con-
cluding (1) that kilgore was an employee within the meaning
of the Fair Labor Standards Act; (2) that kilgore was entitled
to relief under the epA; (3) that kilgore was entitled to an
award of damages under a theory of unjust enrichment; and (4)
that DHHS and the State were liable through vicarious liability
when the agent, Carr, was not found liable. They also argue
that the trial court erred because kilgore’s award for damages
violates the epA’s statute of limitations.
On 	cross-appeal, 	kilgore 	argues 	that 	the 	trial 	court
erred in concluding that DHHS and the State (1) were not
liable under the Adult protective Services Act and (2) were
not negligent.
STANDARD OF RevIeW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
ANALYSIS
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it.2 Notwithstanding
whether the parties raise the issue of jurisdiction, an appellate
court has a duty to raise and determine the issue of jurisdiction
sua sponte.3
We determine that the March 18, 2008, order is not a final,
appealable order for two reasons. First, the issue of attorney
fees has yet to be decided. Second, the March 18 order entered
judgment as to only two of the four remaining defendants.
However, this case presents at least one other jurisdictional
issue. The March 18 order entered judgment as to at least one
but not all of kilgore’s causes of action.
1 Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
2 Id.
3 Keef v. State, 262 Neb. 622, 634 N.W.2d 751 (2001).
kILGORe v. NeBRASkA DepT. OF HeALTH & HUMAN SeRvS. 	461
Cite as 277 Neb. 456

Attorney fees
[4,5] Attorney fees, where recoverable, are generally treated
as an element of court costs.4 An award of costs in a judgment
is considered a part of the judgment.5 As such, a judgment does
not become final and appealable until the trial court has ruled
upon a pending statutory request for attorney fees.6
kilgore properly requested attorney fees in her petition,
and at the close of the bench trial, the court announced that it
would make its determination regarding attorney fees after it
calculated kilgore’s damages. At the time the notice of appeal
was filed, the court had determined kilgore’s damages, but had
not ruled upon kilgore’s request for attorney fees. The failure
of the trial court to rule on kilgore’s request for attorney fees
left a portion of the judgment unresolved, and consequently,
the order from which DHHS and the State appealed and
kilgore cross-appealed is not final. Thus, we must dismiss this
appeal for lack of jurisdiction.
muLtipLe pArties
In this case, there are multiple defendants, thus there are
multiple 	parties. When 	multiple 	parties 	are 	involved, 	the
requirements of § 25-1315 are implicated. We conclude that
the trial court’s written order, as opposed to the court’s oral
announcements in open court, did not direct the entry of final
judgment as to all of the defendants.
[6,7] Section 25-1315 allows an appeal only where mul-
tiple causes of action are presented or multiple parties are
involved and the trial court expressly directs the entry of
a final judgment as to one cause of action or a party and
expressly determines that there is no just reason for delay of
an immediate appeal. Additionally, to be appealable, an order
must satisfy the final order requirements of Neb. Rev. Stat.
§ 25-1902 (Reissue 2008).7 Under § 25-1902, the three types
4 Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003).
5 See id.
6 See, id.; Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002).
7 See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877
(2007).
462 	277 NeBRASkA RepORTS

of final orders which may be reviewed on appeal are (1) an
order which affects a substantial right in an action and which
in effect determines the action and prevents a judgment, (2)
an order affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right
made on summary application in an action after a judgment
is rendered.
[8-12] Neb. Rev. Stat. § 25-1301 (Reissue 2008) sets forth
two 	ministerial 	requirements 	for 	a 	final 	judgment. 	First,
§ 25-1301(2) requires rendition of a judgment, which is defined
as the act of the court, or a judge thereof, in making and signing
a written notation of the relief granted or denied in an action.
Second, § 25-1301(3) requires the entry of a judgment, which
is defined as the act of the clerk of the court in placing the file
stamp and date upon the judgment. We have explained that the
mere oral announcement of a judgment without an entry on the
trial docket is not the rendition of a judgment.8 In other words,
for a final judgment to exist, there must be an order that is both
signed by the court and file stamped and dated by the clerk of
the court.9
It is clear that the March 18, 2008, written order affects a
substantial right which determines the action, thus the written
order satisfied § 25-1902(1). However, the written order does
not satisfy § 25-1301 or § 25-1315. In the March 18 order, the
court entered judgment as to only two of the four remaining
defendants—DHHS and the State. But the written order did not
enter judgment against Washington or Carr. In fact, the written
order did not even mention Washington or Carr. Additionally,
our review of the record reveals no evidence of any written
entries that purport to enter judgment against Washington or
enter directed verdict in favor of Carr.
The trial court’s mere oral announcement of its judg-
ment against Washington and its directed verdict in favor of
Carr, without a written entry that is signed by the court, file
stamped, and dated, is insufficient to render final judgment. As
8 See Fritch v. Fritch, 191 Neb. 29, 213 N.W.2d 445 (1973).
9 See, § 25-1301; State v. Brown, 12 Neb. App. 940, 687 N.W.2d 203
(2004).
kILGORe v. NeBRASkA DepT. OF HeALTH & HUMAN SeRvS. 	463
Cite as 277 Neb. 456

such, the trial court’s written order is not a final, appealable
order pursuant to § 25-1315.
cAuses of Action
[13] Although we have concluded that we lack jurisdiction
over this appeal, we briefly address the remaining jurisdictional
issue because it is likely to recur. An appellate court may, at
its discretion, discuss issues unnecessary to the disposition
of an appeal where those issues are likely to recur during
future proceedings.10
We are uncertain as to which causes of action the court did
and did not dispose of. For instance, the court specifically
announced in open court that its ruling would not include
kilgore’s second cause of action alleging equal protection
violations. The written order did not mention the second cause
of action. We are unclear whether the court, by not including
the second cause of action in its written order, meant to deny
recovery based on the alleged equal protection violations or
if the court intended to withhold its ruling for a later time.
Additionally, the court’s written order found in favor of kilgore
and against DHHS and the State based on unjust enrichment;
however, kilgore did not assert a claim of unjust enrichment
against DHHS or the State. Because of this, we are unclear as
to which causes of action the court, in its written order, actu-
ally disposed of.
CONCLUSION
For the reasons stated above, we lack jurisdiction over
this appeal.
A ppeAL dismissed.
miLLer-L ermAn, J., participating on briefs.
10 State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
464 	277 NeBRASkA RepORTS