Taylor v. Taylor

examined within 36 hours after he or she is taken into custody,
and prior to his or her hearing. In this case, under the MHCA,
the purpose of Gallegos’ initial 3-day hospitalization could be
characterized as observational in nature and, as such, not con-
sidered “committed to a mental institution” under the definition
set forth in § 478.11.
We conclude that Gallegos was not “committed to a mental
institution” within the meaning of § 922(g)(4). As such, the
district court erred when it affirmed the decision of the county
court upholding the Douglas County sheriff’s refusal to issue
Gallegos his gun registration. We therefore reverse the decision
of the district court affirming the county court’s decision and
remand the cause to the district court with directions to remand
the matter to the county court with directions to approve
Gallegos’ request for a gun certificate.
CONCLUSION
We conclude that Gallegos was not committed to a mental
institution for purposes of § 922(g)(4) and therefore was not
prohibited from possessing a firearm. We reverse the decision
of the district court and remand the cause to the district court
with directions.
R eveRsed and Remanded with diRections.
milleR-leRman, J., participating on briefs.
tAyLOr v. tAyLOr 	617
Cite as 277 Neb. 617
RobeRt e. tayloR, appellee , v. leatha l. tayloR,
appellee , and shiRley J. little , appellant.
764 N.W.2d 101
Filed April 17, 2009. 	No. S-08-303.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
and when reviewing questions of law, an appellate court resolves the questions
independently of the lower court’s conclusions.
2. Contracts: Mechanics’ Liens. A construction lien is not valid absent a contract
between the parties.
3. Property: Sales: Mechanics’ Liens. General cleanup activities in preparation
for sale of property are inconsistent with the property changes contemplated
and required by Neb. rev. Stat. § 52-130 (reissue 2004) for a valid construc-
tion lien.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

4. Attorney Fees. Attorney fees and expenses may be recovered in a civil action
only when provided for by statute or when a recognized and accepted uniform
course of procedure has been to allow recovery of attorney fees.
5. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the fee is
left to the trial court’s discretion, and an appellate court will not disturb its ruling
on appeal absent an abuse of discretion.
Appeal from the District Court for Wheeler County: K aRin
l. noaKes, Judge. Affirmed.
Galen E. Stehlik, of Lauritsen, Brownell, Brostrom, Stehlik,
Myers & Daugherty, P.C., L.L.O., for appellant.
Forrest F. Peetz, of Peetz Law P.C., L.L.O., for appellee
robert E. taylor.
heavican, c.J., wRight, connolly, geRRaRd, stephan, and
mccoRmacK, JJ.
connolly, J.
In this partition action, appellee robert E. taylor contests
the validity of a construction lien. Anticipating a partition sale,
the appellant, Shirley J. Little (Shirley), cleaned up the prop-
erty by removing junk and tree limbs from the premises. Later,
she filed a construction lien against the property.
the district court found that lien was invalid under the
Nebraska Construction Lien Act (Act).1 We affirm, because
under the Act, Shirley’s cleanup activities did not produce a
sufficient change in the property’s physical condition of the
land to support a valid real estate improvement contract.
robert and Shirley are brother and sister, and they owned
undivided one-half interests in property subject to a life estate
owned by their mother, appellee Leatha L. taylor. Leatha
became ill and moved out of her home, and all three agreed
that they should sell the property. After disagreements arose
while attempting to sell the house, robert brought a partition
action. Leatha did not object to the partition. Shirley cross-
claimed, alleging that she had, at Leatha’s request, cleaned up
the property to prepare it for sale. Shirley filed a purported
1 Neb. rev. Stat. §§ 52-125 to 52-159 (reissue 2004).
618 	277 NEBrASkA rEPOrtS

construction lien for $3,692.46. the referee sold the property,
and the court confirmed the sale.
the court determined each party’s share: 16.691 percent
to Leatha, 41.6545 percent to Shirley, and 41.6545 percent to
robert. the court also awarded robert $1,636.19 in attorney
fees for bringing the partition action.2 Finding that Shirley’s
lien was invalid under the Act, the court refused to order pay-
ment out of the sale proceeds for Shirley’s purported lien.
[1,2] Shirley argues that the trial court erred in (1) finding
that her lien was invalid and (2) awarding robert the entire
amount of his attorney fees. Interpreting the Act presents a
question of law, and when reviewing questions of law, we
resolve the questions independently of the lower court’s con-
clusions.3 Under the Act, “[a] person who furnishes services
or materials pursuant to a real estate improvement contract
has a construction lien . . . to secure the payment of his or
her contract price.”4 A construction lien is not valid absent a
contract between the parties.5 A real estate improvement con-
tract is
an agreement to perform services, including labor, or
to furnish materials for the purpose of producing a
change in the physical condition of land or of a struc-
ture including:
(a) Alteration of the surface by excavation, fill, change
in grade, or change in a shore, bank, or flood plain of a
stream, swamp, or body of water;
(b) Construction or installation on, above, or below the
surface of land;
(c) Demolition, repair, remodeling, or removal of a
structure previously constructed or installed;
(d) Seeding, sodding, or other landscaping operation;
(e) Surface or subsurface testing, boring, or analyz-
ing; and
2 See Neb. rev. Stat. § 25-21,108 (reissue 2008).
3 See State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).
4 § 52-131.
5 Tilt-Up Concrete v. Star City/Federal, 255 Neb. 138, 582 N.W.2d 604
(1998).
tAyLOr v. tAyLOr 	619
Cite as 277 Neb. 617

(f) Preparation of plans, surveys, or architectural or
engineering plans or drawings for any change in the
physical condition of land or structures whether or not
used incident to producing a change in physical condition
of the real estate.6
Under § 52-131, to have a construction lien, Shirley must
have had a real estate improvement contract with Leatha.
And under § 52-130, to have a valid real estate improvement
contract, Shirley’s efforts must have produced a change in the
physical condition of the land. Shirley claims her lien is for
“expenses and time incurred in cleaning up and preparing the
house and property to a level of sal[e]ability.” According to
Shirley, she and her husband spent about 19 days from July
to October 2006 cleaning up the property. they cleaned inside
the house; they removed items from the yard and other build-
ings on the property, such as old washers, cars, pieces of iron,
tires, lumber, and other garbage; and they removed dead tree
branches and other landscaping debris. Shirley claims that
these efforts produced a sufficient change in the property’s
physical condition to qualify as an improvement contract.
Of course, robert argues that Shirley’s cleanup did not
result in a physical change in the condition of the land. the
district court agreed, holding that the “labor provided by
[Shirley] did not produce a change in the physical condition of
the land or structure.” the court determined that the lien was
unenforceable.
We have never determined what activities produce a “change
in the physical condition of the land” sufficient to support
imposing a construction lien. the Nebraska Court of Appeals
has held that a contractor that made repairs to a sewerline
could recover on a construction lien.7 It also has held that a
subcontractor could obtain a construction lien for his labor and
materials used in framing a house.8 But here, Shirley made no
improvements or alterations to the house.
6 § 52-130(1).
7 Baumgartner v. Berry, No. A-03-1208, 2005 WL 1021861 (Neb. App. May
3, 2005) (not designated for permanent publication).
8 Sorenson v. Dager, 8 Neb. App. 729, 601 N.W.2d 564 (1999).
620 	277 NEBrASkA rEPOrtS

[3] We believe Shirley’s activities are inconsistent with the
property changes contemplated by § 52-130. Section 52-130
does not define improvements, but does list examples. It speaks
to alteration of the surface; demolition, repair, remodeling, or
removal of a structure; and seeding, sodding, or other landscap-
ing operations. these changes produce permanent improve-
ments to the real property. Moreover, § 52-130(2) excludes
from the definition of real estate improvement contracts activi-
ties primarily for the disposal or removal of objects. While
cleaning up the yard and removing personal property from
buildings may have made the property more appealing to future
buyers, it did not produce a permanent improvement in the
physical condition of the land sufficient to qualify under the
Act. Shirley’s purported lien is unenforceable.
[4] Next, we address robert’s attorney fees. A party may
recover attorney fees and expenses in a civil action only when
provided for by statute or when a recognized and accepted
uniform course of procedure has been to allow recovery of
attorney fees.9 Section 25-21,108 provides for attorney fees in
partition actions as follows:
[t]he court shall, after partition or after the confirmation
of the sale and the conveyance by the referee, determine
a reasonable amount of attorney’s fees to be awarded,
which amount shall be taxed as costs in the proceed-
ings. If the shares confirmed by such judgment and the
existence of all encumbrances of which the plaintiff had
actual or constructive notice were accurately pleaded in
the original complaint of the plaintiff, such attorney’s
fees shall be awarded entirely to the attorney for the
plaintiff; otherwise, the court shall order such fees for
the attorneys to be divided among such of the attorneys
of record in the proceedings as have filed pleadings upon
which any of the findings in the judgment of partition
are based.
Shirley contends that the district court should not have
awarded robert the entire amount of his attorney fees. She
argues that most of the legal work did not involve the partition
9 See In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
tAyLOr v. tAyLOr 	621
Cite as 277 Neb. 617

action, but involved robert’s attempts to nullify the claimed
encumbrances. Alternatively, she argues that robert’s plead-
ings do not reflect the existence of any encumbrances, because
it was Shirley who cross-complained for the encumbrance
and robert who denied the existence of the encumbrances in
his answer.
robert claims that he correctly pleaded the shares that the
court ultimately confirmed and that the court was correct in
awarding his entire attorney fees. He argues that before the
court could confirm the sale, it had to address Shirley’s con-
struction lien. We agree.
[5] When an attorney fee is authorized, the fee is left to the
trial court’s discretion, and we will not disturb its ruling on
appeal absent an abuse of discretion.10 For steering the partition
action to a confirmed sale, the district court awarded robert the
entire amount of his attorney fees, $1,636.19. We do not find
this to be an abuse of discretion.
affiRmed.
milleR-leRman, J., participating on briefs.
10 See id.
maRy buRnison, appellant, v.
K athleen Johnston, appellee .
764 N.W.2d 96
Filed April 17, 2009. 	No. S-08-406.
1. Actions: Parties: Standing. Whether a party who commenced an action had stand-
ing and was therefore the real party in interest presents a jurisdictional issue.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does
not involve a factual dispute presents a question of law, which an appellate court
independently decides.
3. Contracts: Assignments: Intent: Public Policy. A contractual right to the bene-
fit of a promise cannot be assigned if the obligor reasonably intended for the
right to be exercised only by the party with whom it contracted. the rule usually
applies when a promise involves a relationship of personal trust or confidence
or the obligor has expectations of counterperformance. Otherwise, contractual
rights are generally assignable unless the terms validly preclude assignment or
the assignment is contrary to statute or public policy.
622 	277 NEBrASkA rEPOrtS