2006 Nebraska Revised Statutes - § 25-824 — Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney\'s fees and costs.

Section 25-824
Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and costs.

(1) A pleading shall not be used against a party in any criminal prosecution or action or proceeding for a penalty or forfeiture as proof of a fact admitted or alleged in such pleading. If a pleading is frivolous or made in bad faith, it may be stricken. The signature of a party or of an attorney on a pleading constitutes a certificate by him or her that he or she has read the pleading; that to the best of his or her knowledge, information, and belief there is good ground for the filing of the pleading; and that it is not interposed for delay.

(2) Except as provided in subsections (5) and (6) of this section, in any civil action commenced or appealed in any court of record in this state, the court shall award as part of its judgment and in addition to any other costs otherwise assessed reasonable attorney's fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which a court determines is frivolous or made in bad faith.

(3) When a court determines reasonable attorney's fees or costs should be assessed, it shall allocate the payment of such fees or costs among the offending attorneys and parties as it determines most just and may charge such amount or portion thereof to any offending attorney or party.

(4) The court shall assess attorney's fees and costs if, upon the motion of any party or the court itself, the court finds that an attorney or party brought or defended an action or any part of an action that was frivolous or that the action or any part of the action was interposed solely for delay or harassment. If the court finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct, including, but not limited to, abuses of civil discovery procedures, the court shall assess attorney's fees and costs.

(5) No attorney's fees or costs shall be assessed if a claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in this state or if, after filing suit, a voluntary dismissal is filed as to any claim or action within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that he or she would not prevail on such claim or action.

(6) No party who is appearing without an attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or reasonably should have known that his or her action or defense or any part of such action or defense was frivolous or made in bad faith, except that this subsection shall not apply to any situation in which an attorney licensed to practice law in the state is appearing without an attorney, in which case he or she shall be held to the standards for attorneys prescribed in this section.


Source:
    R.S.1867, Code § 113, p. 412

    R.S.1913, § 7684

    Laws 1915, c. 144, § 1, p. 313

    C.S.1922, § 8628

    C.S.1929, § 20-824

    R.S.1943, § 25-824

    Laws 1969, c. 182, § 1, p. 774

    Laws 1983, LB 277, § 1

    Laws 1987, LB 261, § 1

Annotations:
    The failure of a party to sign an answer is waived if not raised before trial. Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d 566 (1991).

    Want of verification is not a jurisdictional defect. Northup v. Bathrick, 80 Neb. 36, 113 N.W. 808 (1907).

    Verification is not necessary to petition in error. Newlove v. Woodward, 9 Neb. 502, 4 N.W. 237 (1880).

    Failure to verify is not ground for dismissal. Fritz v. Barnes, 6 Neb. 435 (1877).

    Verification on belief of affiant is sufficient. Harden v. Atchison & N. R. R. Co., 4 Neb. 521 (1876).

    Agent or attorney may make verification. Cropsey v. Wiggerhorn, 3 Neb. 108 (1873).2. Frivolous or bad faith pleading

    As used in subsection (2) of this section concerning allowance of an attorney fee, "frivolous" means a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. Nebraska Pub. Emp. v. City of Omaha, 244 Neb. 328, 506 N.W.2d 686 (1993).

    A legal position is frivolous if the position is wholly without merit, that is, without rational argument based on law and evidence to support a litigant's position in the lawsuit. Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993).

    Under subsection (2) of this section, the Supreme Court applies an abuse-of-discretion standard to district court decisions concerning the imposition of sanctions for frivolous lawsuits. Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991).

    The term "frivolous," as used in subsection (2) of this section, connotes an improper motive or a legal position so wholly without merit as to be ridiculous. Behrens v. American Stores Packing Co., 236 Neb. 279, 460 N.W.2d 671 (1990).

    The attorney fees generated in defending against a frivolous appeal are authorized under subsection (2) of this section regardless of the fact that the fees were not requested or ordered in the trial court. First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990).

    The term "frivolous," as used in this section, connotes an improper motive or legal position wholly without merit. Peterson v. Don Peterson & Assoc. Ins. Agency, 234 Neb. 651, 452 N.W.2d 517 (1990).

    A city's defense to a hospital's action to recover for services was frivolous where the hospital sought to recover for services rendered to indigent prisoners and the Nebraska Supreme Court had held that the city was liable in an earlier suit. Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 429 N.W.2d 347 (1988).

    All doubts as to whether an action is frivolous should be resolved in favor of the petitioner. Sanctions should not be imposed except in the clearest cases. Shanks v. Johnson Abstract & Title, 225 Neb. 649, 407 N.W.2d 743 (1987).

    This section is authority for granting fees to a party defendant when the party initiating the court proceeding does so vexatiously. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985).

    But for the fact that the amendment to this section permitting the assessment of reasonable expenses, including attorney fees, to attorneys

    is new, a portion of the attorney fee awarded to the defendants would have been taxed to the plaintiffs' attorneys. Graham v. Waggener, 219 Neb. 907, 367 N.W.2d 707 (1985).3. Miscellaneous

    On appeal, a trial court's decision allowing or disallowing attorney fees will be upheld in the absence of the trial court's abuse of discretion. Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993).

    Under code, an answer, except so far as statements therein may involve admissions against interest, has been wholly deprived of the characteristics of evidence. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).



~Reissue Revised Statutes of Nebraska

Disclaimer: These codes may not be the most recent version. Nebraska may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.