StoreVisions v. Omaha Tribe of Neb. -- supplemental opinion

StoreViSionS, inc., appellee , V. omaha
tribe of nebraSka , alSo known aS
omaha nation, appellant.
802 N.W.2d 420
Filed July 22, 2011. 	No. S-10-280.
Supplemental opinion
Appeal from the District Court for Thurston County: DarViD
D. Q uiSt, Judge. Supplemental opinion: Former opinion modi-
fied. Motion for rehearing overruled.
Ben Thompson and Amanda J. Karr, of Thompson Law
Office, P.C., L.L.O., for appellant.
Michael J. Whaley and Elizabeth M. Skinner, of Gross &
Welch, P.C., L.L.O., for appellee.
heaVican, c.J., connolly, G errarD, Stephan, mccormack,
and miller-lerman, JJ.
per curiam.
Case No. S-10-280 is before this court on the motion for
rehearing filed by the appellant regarding our opinion reported
at StoreVisions v. Omaha Tribe of Neb., ante p. 238, 795
N.W.2d 271 (2011). We overrule the motion, but modify the
opinion as follows:
In the section of the opinion designated “Waiver of Sovereign
Immunity,” we withdraw the 12th and 13th paragraphs, id. at
248, 796 N.W.2d at 280, and substitute the following:
The situation presented by this appeal is virtually identi-
cal to the one presented in Rush Creek Solutions. One dif-
ference is that, in this appeal, the Tribe and StoreVisions
entered into a separate waiver prior to entering into the
underlying contracts. As noted, this separate waiver was
signed in the presence of five of the seven members of the
tribal council and lends even more weight to an appearance
that the signatories to the document—the chairman and
vice chairman—were vested with the authority to waive
the Tribe’s sovereign immunity. Indeed, the presence of
978 	281 NEBrASKA rEPOrTS
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five of the seven members of the tribal council in the
tribal meeting room at the Tribe’s headquarters, along
with the tribal council’s vote on resolution No. 08-74,
strongly suggest that the action of the chairman and the
vice chairman, both members of the tribal council, were,
on these facts, essentially the action of the tribal council
itself. Unlike those cases wherein the agent was a party
removed from the principal by time, place, and/or organi-
zational structure, the agent and the principal in this case,
if not actually one and the same, are very nearly one and
the same.
We conclude that based upon these undisputed facts,
the chairman and vice chairman had the requisite author-
ity to waive the Tribe’s sovereign immunity. The Tribe’s
first assignment of error is without merit.
The remainder of the opinion shall remain unmodified.
former opinion moDifieD.
motion for rehearinG oVerruleD.
wriGht, J., not participating.
ceSar c., appellant anD croSS-appellee , V.
alicia l., appellee anD croSS-appellant.
800 N.W.2d 249
Filed July 22, 2011. 	No. S-10-924.
1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning
child custody determinations are reviewed on appeal de novo on the record to
determine whether there has been an abuse of discretion by the trial court, whose
judgment will be upheld in the absence of an abuse of discretion. In such de novo
review, when the evidence is in conflict, the appellate court considers, and may
give weight to, the fact that the trial court heard and observed the witnesses and
accepted one version of the facts rather than another.
2. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
3. Appeal and Error. Although an appellate court ordinarily considers only those
errors assigned and discussed in the briefs, the appellate court may, at its option,
notice plain error.
CESAr C. V. ALICIA L. 	979
Cite as 281 Neb. 979