No. S-09-001183 and No. S-09-001184 IN THE NEBRASKA SUPREME COURT DONALD B. EIKMEIER, Plaintiff/Appellant, vs.
THE CITY OF OMAHA, NEBRASKA, a municipal corporation; and CITY OF OMAHA MAYOR MICHAEL FAHEY, and CITY OF OMAHA COUNCILMEN JAMES VOKAL, JR.; CHUCK SIGERSON, JR.; JIM SUTTLE; FRANK BROWN; GARRY GERNANDT; DAN WELCH; and FRANKLIN THOMPSON, in their official capacities and not individually, Defendants/Appellees, CHERYL ECKERMAN, Plaintiff/Appellant, vs.
THE CITY OF OMAHA, NEBRASKA, a municipal corporation; and CITY OF OMAHA MAYOR MICHAEL FAHEY, and CITY OF OMAHA COUNCILMEN JAMES VOKAL, JR.; CHUCK SIGERSON, JR.; JIM SUTTLE; FRANK BROWN; GARRY GERNANDT; DAN WELCH; and FRANKLIN THOMPSON, in their official capacities and not individually, Defendants/Appellees, APPEAL FROM THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA The Honorable Gerald E. Moran, District Court Judge Prepared and submitted by: ALAN M. THELEN, No. 17811 Deputy City Attorney 804 OmahaIDouglas Civic Center 1819 Farnam Street Omaha, NE 68183 (402) 444-5115 Attorney for Defendants/Appellees BRIEF OF APPELLEES
elERl, NEBRASKA SUPREME COURT COURT OF APPEALS
CREIGHTON UNIVERSITY

TABLES.........................................................................................................................
STATEMENT OF CASE...............................................................................................
PROPOSITIONS OF LAW.....
STATEMENT OF FACTS SUMMARY OF ARGUMENT ARGUMENT 1.
II.
STANDARD OF REVIEW ;...................................
PLAINTIFFS ARE NOT ENTITLED TO ATTORNEYS FEES.......................................................................................................
III.
PLAINTIFFS ARE NOT ENTITLED TO PREJUDGMENT INTEREST.............................................................................................
CONCLUSION
Page
11 4 7 1 2 8 10 14 18

TABLE OF AUTHORITIES CASES
Amanda
C. ex rel Richmond v. Case, 275 Neb. 757, 765, 749 N.W.2d 429, 437 (2008)
Archibold v.
Reifenrath,
274 Neb. 894, 905, 744 N.W.2d 701, 709 (2008)
Babb v.
United Food and Commercial Workers District Union, Local
271, 233 Neb. 826,448 N.W.2d 168 (1989) ..
..
Page 3,13 8
City ofElkhorn v.
City of Omaha,
272 Neb. 867,725 N.W.2d 792 (2007)
City of Omaha v. City of Elkhorn,
276 Neb. 70, 80,752 N.W.2d 137,149 (2008)
Coffelt v. City of Omaha,
223 Neb. 108, 110,388 N.W.2d 467,469 (1986)
Halbleib v.
City of Omaha,
222 Neb. 844,846,388 N.W.2d 60,61 (1986)
Hammond v.
City ofBroken Bow,
239 Neb. 437, 446, 476 N.W.2d 822,828 (1991) .......
Hawkins v.
City of Omaha,
261 Neb. 943, 954, 627 N.W.2d 118,128 (2001) ..
..
..
2,7,11, 12,13,14 ..
1 .
5,8,12, 13, 14, 18 ..
16 4, 16 4, 15 9
Heimbouch
v. Victorio Insurance Service, Inc., 220 Neb. 279, 369 N.W.2d 620 (1985)..........................................................................................
2, 7, 10, 11
IBP, Inc.
v.
Sands,
252 Neb. 573, 583, 563 N.W.2d 353, 359 (1997) 17
In Re Olmer,
275 Neb. 852, 861, 752 N.W.2d 124, 131 (2008)
Kirkland v. Abramson,
248 Neb. 675, 678, 538 N.W.2d 752, 755 (1995)
Mattes v. Butterball, LLC,
2007 W.L. 2407031 (D.Neb. 2007) 2, 7, 9 3, 13 12
Rafos v. Outboard Marine Corporation,
1992 W.L. 521530 (D. Neb. 1992)
Security State Bank v. Gugelman,
230 Neb. 842, 845, 434 N.W.2d 290, 292 (1989) .......
Simon v. City of Omaha,
267 Neb. 718, 723, 677 N.W.2d 134 (2004)..............................
Thomas v. Great Western Bank,
2008 W.L. 5120499 (D. Neb. 2008) 12 3, 13 2, 10 12 ii

NEB. REV. STAT.
§
14-118 (Reissue 2007).........................................................................
12 NEB.
REv.
STAT.
§ 14-804 (reissue 2007) NEB. REV. STAT.
§ 14-813 (Reissue 2007).........................................................................
4, 5, 8, 16 1, 16 NEB.
REv.
STAT.
§§ 25-1901 through 25-1908 (Reissue 2008).........................................
NEB. REV. STAT.
§ 25-1937 (Reissue 2008).......................................................................
8 1,2,6 7,8,9 NEB.
REv.
STAT.
§ 45-103.04
(Reissue 2004)....................................................................
4, 8, 14, 15,16,17 NEB. REV. STAT.
NEB. REV. STAT.
§ 45-104 (Reissue 2004) § 48-1229 (Cum.Supp.
2008) 14, 17 10
Neb. Const. Art. III, § 19....................................................................................................
14 iii

1.
The district court consolidated the two actions Eikmeier v. City of Omaha, et al., and Eckerman v. City of Omaha, et at. (T38) On appeal, this Court has done the same. As was done by the Plaintiffs in their brief, our references to the record will be to the transcript and bill of exceptions in the Eikmeier v. City of Omaha, et al., case, unless otherwise indicating a reference to such items in the Eckerman v. City of Omaha, et al., case.
In these cases, the Plaintiffs Donald B. Eikmeier and Cheryl Eckerman ("Plaintiffs") appeal from a decision of the Omaha City Council regarding Plaintiffs' claims for severance payments under their Severance Agreements with their former employer, the City of Elkhorn [which has been annexed by the City of Omaha, see City of Elkhorn v. City of Omaha, 272 Neb.
867, 725 N.W.2d 792 (2007)].
(T63) The City Council approved the claims for severance payments, with amended amounts, and the Plaintiffs do not object to the amended amounts. See Appellants' brief at pp. 12-14. The City Council did not approve the payment of any attorneys fees or other amounts. (E3, 31:19, Vol. II; Eckerman E3, 31:21, Vol. II). Plaintiffs then filed these present appeals to district court pursuant to "NEB. REV. STAT.
§ 14-813 (Reissue 2007) and NEB. REV. STAT.
§ 25-1937 (Reissue 2008)." (Tl and Eckerman Tl). The sole issues in these appeal actions were attorneys fees and prejudgment interest; there was no dispute as to the amount of severance payments approved by the Omaha City Council.
The district court elected to review the cases on appeal pursuant to NEB. REV. STAT.
§ 25 1937, rather than by petition in error.
(T49-52). The court received Exhibits 1 through 4 as evidence in each case. (17:19-22:7).
- 1 -

3.
the trial court How the issues were decided and what judgment or decree was entered by The district court denied the Plaintiffs' motion for summary judgment, and disposed of the appeals by affirming the actions of the Omaha City Council. (T75-76).
4.
The scope of the Supreme Court's review.
In the appellate review of an appeal under NEB. REV. STAT.
§ 25-1937, the findings of the district court shall have the effect of a jury verdict and the court's judgment will not be set aside by an appellate court unless the court's factual findings are clearly erroneous or the court erred in its application of the law.
In Re Olmer, 275 Neb. 852, 861, 752 N.W.2d 124, 131 (2008).
1.
PROPOSITIONS OF LAW The findings of the district court shall have the effect of a jury verdict, and the 2.
3.
court's judgment will not be set aside by an appellate court unless the court's factual findings are clearly erroneous or the court erred in its application of a law.
In Re Olmer, 275 Neb. 852, 862,725 N.W.2d 124,131 (2008) As a general rule, attorneys fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorneys fees.
Simon v. City of Omaha, 267 Neb. 718, 723, 677 N.vV.2d 134 (2004) Severance payments are not "wages" and are not covered by the Nebraska Wage Payment and Collection.
Heimbouch v. Victorio Insurance Service, Inc., 220 Neb. 279, 285-286, 369 N.W.2d 620,624 (1985) Babb v. United Food and Commercial Workers District Union, Local 271, 233 Neb. 826,448 N.W.2d 168 (1989) - 2 -

6.
7.
4.
5.
Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of ultimate fact that was determined by a valid and final judgment cannot be litigated again between the same parties or their privities in any future lawsuit.
Amanda
C. ex reZ Richmond v. Case, 275 Neb. 757, 765, 749 N.W.2d 429, 437 (2008) Collateral estoppel is applicable where (1) an identical issue was decided in a prior action, (2) the prior action resulted in a judgment on the merits which was final, (3) the party against whom the doctrine is to be applied was a party or was in privity with the party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.
Amanda
C. ex reZ Richmond v. Case, 275 Neb. 757, 765, 749 N.W.2d 429, 437 (2008) The doctrine of res judicata is based on the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive upon the parties in any later litigation involving the same cause of action.
KirkZandv. Abramson,
248 Neb. 675,678,538 N.W.2d 752,755 (1995) Any right, fact, or matter in issue indirectly adjudicated in a prior proceeding, or necessarily involved in the determination of the action before a competent court in which the judgment or decree was rendered upon the merits, is conclusively settled by the judgment and may not be litigated again between the parties, whether the claim, demand, purpose, or subject matter of the suits would or would not be the same.
Security State Bank v. GugeZman,
230 Neb. 842, 845, 434 N.W.2d 290, 292 (1989) - 3 -

8.
9.
NEB.
REv.
STAT.
§ 45-103.04 (Reissue 2004) specifically prohibits the assessment of prejudgment interest against a political subdivision.
NEB.
REv.
STAT.
§ 45-103.04 (Reissue 2004)
Hammond
v. City of Broken Bow, 239 Neb. 437, 446, 476 N.W.2d 822, 828 (1991) NEB. REV. STAT.
§ 14-804 (Reissue 2007) states before any claim against the city, except officers' salaries earned within 12 months or interest on the public debt is 10.
allowed, the claimant or his agent or attorney shall verify the same by his affidavit. ..All claims against the city must be filed with the city comptroller.
NEB. REV. STAT.
§ 14-804 (Reissue 2007) Compliance with NEB. REV. STAT.
§ 14-804 is a condition precedent to seeking relief through the courts.
11.
Halbleib
v.
City of Omaha,
222 Neb. 844, 846, 388 N.W.2d 60, 61 (1986) Under NEB.
REv.
STAT 45-103.02(2), prejudgment interest is recoverable only when the claim is liquidated, that is, when there is no reasonable controversy as to the plaintiff's right to recover and the amount of such recovery.
Archbold
v.
Reifenrath,
274 Neb. 894,905,744 N.W.2d 701,709 (2008)
STATEMENT OF FACTS
Plaintiffs were employees of the City of Elkhorn. (T1; Eckerman T1). While employees of Elkhorn, each of them signed a substantially similar "Severance Agreement" with Elkhorn.
(TlO; Eckerman Tll). The agreements provided for certain severance payments to the Plaintiffs, if Omaha annexed Elkhorn, and if their employment was terminated as a result. (TIl; Eckerman T12). That annexation occurred, and the Plaintiffs' employment positions were eliminated. (T2;
Eckerman
T2).
- 4-

The City of Omaha filed an action for a declaratory judgment declaring the severance agreements to be unconstitutional. The district court initially ruled that the severance agreements were unconstitutional.
However, the Nebraska Supreme Court ruled that the severance agreements were not unconstitutional, reversed the district court, and "remand [ed] the causes for further proceedings consistent with this opinion." City of Omaha v. City of Elkhorn, 276 Neb.
70, 80, 752 N.W.2d 137, 149 (2008). The "further proceedings" in district court ultimately resulted in the district court's December 23, 2008, order ruling that the severance provisions were constitutional. (E2, 2-3:19, Vol. II).
Meanwhile, while those "further proceedings" were pending, on August 29, 2008, Plaintiffs filed a claim with the Omaha City Comptroller pursuant to NEB. REV. STAT.
§ 14-804.
(E3, 34:19, Vol. II; Eckerman E3, 34:21, Vol. II).
those claims, the Plaintiffs stated that they were giving notice of their "claim for severance pay pursuant to the provisions of the City of Elkhorn Severance Agreement." [d. The Plaintiff Eikmeier claimed $56,167.55 plus attorney's fees, while the Plaintiff Eckerman claimed $10,906.79 plus attorney's fees. (E3, 36:19, Vol. II;
Eckerman
E3, 36:21, Vol. II).
The claims came before the Omaha City Council for disposition, as directed by NEB.
REv.
STAT.
§ 14-804. The verbatim transcript of the City Council hearing is contained in Exhibit 4.
(E4, 1-14:19, Vol. II).
Therecord before the City Council contained submittals by the Plaintiffs (E3, 38-213:19, Vol. II), along with documents submitted by City officials. (E3,214 220:19, Vol. 2). The Council adopted a resolution approving the claim of the Plaintiff Eikmeier in the total amount of $52,535.57, while denying items in excess of that amount. (E3,31:19, Vol. II; E4, 8:19, Vol. II).
The Council also adopted a resolution approving the Plaintiff Eckerman's claim in the total amount of $10,890.52, while denying items in excess of that amount. (Eckerman E3, 31:21, Vol. II; E4, 9-11:22, Vol. II).
- 5 -

Plaintiffs then filed the present actions for review of the City Council's decisions. (T1;
Eckerman
T1).
In these actions, the Plaintiffs do not dispute the principal amounts of the severance payments approved by the Council; rather, they only complain about the failure to award them attorneys fees and prejudgment interest. (T9;
Eckerman
T9). The Plaintiffs' two cases were ordered consolidated. (T38).
Each Plaintiff characterized their petition as an appeal under NEB. REV. STAT.
§ 25-1937 and also as a "petition in error." (T1;
Eckerman
T1). The Defendants filed motions to strike or dismiss the "appeal" causes of action, arguing that Plaintiffs' only remedy was by petition in error. (T36;
Eckerman
T35). The district court denied the motion, ruling that the City Council was not exercising a judicial function in its actions. (T51-52). The cases proceeded, then, as appeals pursuant to § 25-1937. (T67). The Defendants filed answers. (T53;
Eckerman
T52).
Each Plaintiff filed a pleading called "Motion for Summary Judgment and Motion for Disposition." (T40;
Eckerman
T39).
The matter came before the district court for hearing on September 15, 2009. (15:16).
The district court received into evidence Exhibits 1, 2, 3, and 4 in each respective case. (17:20 22:7). Exhibit 1 was the affidavit of Plaintiffs' counsel. (E1, 1:18, Vol. II). Exhibit 2 was the affidavit of Plaintiffs' counsel. (E2, 1:19, Vol. II). Exhibit 3 was the transcript of the record before the City Council. (E3, 1:19, Vol. II). Exhibit 4 was the verbatim transcript of the City Council hearing. (E4, 1:19, Vol. II).
In an October 27, 2009, order, the court denied Plaintiffs' motions and affirmed the decisions of the Omaha City Council. (T63). Noting that Plaintiffs sought attorneys fees under the Nebraska Wage Payment and Collection Act ("NWPCA" or "the Act"), the court stated that "[t]he clear rule in Nebraska is that severance payments are not covered by the NWPCA." (T69 70). The district court denied prejudgment interest, on the ground that NEB.
REv.
STAT.
§ 45 - 6 -

103.04(2) (Reissue 2004) provides that prejudgment interest does not accrue against a political subdivision. (T74-75).
From the latter order, Plaintiffs have filed this appeal.
The only issues involved in these actions are whether the Omaha City Council should have awarded Plaintiffs attorneys fees and prejudgment interest. (T9; Eckerman T9). The City Council approved the principal amounts of severance payments to be awarded to the Plaintiffs, and Plaintiffs have not contested those awards. Appellants' Brief at pp. 13-14.
On an appeal such as this pursuant to NEB. REV. STAT.
§ 25-1937, the findings of the district court shall have the effect of a jury verdict; and the court's judgment will not be set aside by an appellate court unless the court's factual findings are clearly erroneous or the court erred in its application of the law. In Re Olmer, 275 Neb. 852, 861, 752 N.W.2d 124 (2008). Thus, to the extent there were any "factual findings," they are not to be disturbed on appeal unless clearly erroneous.
Plaintiffs cite the Nebraska Wage Payment and Collection Act ("the Act") as their basis for the assessment of attorneys fees. Appellants' Brief at p. 19. In effect, Plaintiffs are arguing that this Court should overrule its prior cases holding that severance payments are not "wages" covered by the Act. See Babb v. United Food and Commercial Workers District Union, Local 271,233 Neb. 826,448 N.W.2d 168 (1989) and Heimbouch v. Victorio Insurance Service, Inc., 220 Neb. 279, 369 N.W.2d 620 (1985). Plaintiffs fail to show how or why those cases are to be distinguished from the present actions, other than disagreement with the Court's rulings in those cases that severance payments were not "compensation for labor or services." Appellants' Brief at pp. 23-25.
- 7 -

Plaintiffs also attempt to argue that the severance payments should be covered by the Act because of some statements in the case
City of Omaha
v.
City of Elkhorn,
276 Neb. 70, 752 N.W.2d 137 (2008), which are supposedly to be accorded some collateral estoppel or res judicata effect. However, in
City of Omaha,
this Court did not address the issue of whether severance payments were covered by the Act. Indeed, in that opinion the Court specifically stated that it was only analyzing the constitutional questions raised by the severance payments.
City of Omaha,
276 Neb. at 82,752 N.W.2d at 147. Accordingly, collateral estoppel and res judicata do not apply here.
The Plaintiffs' pursuit of prejudgment interest must be rejected for several reasons. First, NEB.
REv.
STAT. § 45-103.04 specifically prohibits the assessment of prejudgment interest against a political subdivision. [This was the ground relied upon by the district court. (T74)).
Second, Plaintiffs failed to file any claim for prejudgment interest with the City Comptroller, as required by NEB. REV. STAT. § 14-804. Third, there was no "judgment" entered for the principal amount owed, and thus nothing to trigger "prejudgment" interest. Finally, the Plaintiffs' claim was not liquidated, as required for the assessment of prejudgment interest under NEB.
REv.
STAT.
§ 45-103;02(2). See
Archibold
v.
Reifenrath,
274 Neb. 894,905,744 N.W.2d 701,709 (2008).
I.
Before determining the standard of review, it is necessary to identify the nature of the Plaintiffs' causes of action. Plaintiffs sought the judicial review of a decision of the Omaha City Council. (T1;
Eckerman
T1). They characterized their Petition as a "petition in error" "pursuant to NEB. REV. STAT. §§ 25-1901 through 25-1908." (T7;
Eckerman
T7) and also as a "petition on appeal" invoking NEB. REV. STAT. § 25-1937. (T1;
Eckerman
Tl). The district court ruled that - 8 -

"the Omaha City Council had not exercised a judicial function," such as would trigger review by error proceeding. (T67). The district court ruled that "Plaintiffs' Petition is before the Court on a petition on appeal, pursuant to NEB. REV STAT.
§ 25-1937." (T67).
Section 25-1937 states that "the procedure for appeal to the district court shall be the same as for appeals from the county court to the district court in civil actions." This section adds that "trial in the district court shall be de novo upon the issues made up by the pleadings in the district court." Thus, as indicated by this Court in Hawkins v. City of Omaha, 261 Neb. 943, 954, 627 N.W.2d 118, 128 (2001), the district court is to conduct a trial de novo on an appeal pursuant to § 25-1937.
Plaintiffs then incorrectly argue that on appeal to this Court, "this Court's standard of review is de novo," (Appellants' Brief at p. 6), just like it was before the district court.
Just because review by the district court is by trial de novo, doesn't mean that appellate review by this Court is by that same standard.
The Hawkins case, invoked by the Plaintiffs in their argument, does not say that an appellate court is to review de novo the findings of a district court in an action under § 25-1937. To the contrary, the Hawkins opinion shows that this Court was deferential to the factual findings of the district court, in weighing the qualifications of experts . and in arriving at damage amounts. Hawkins, 261 Neb. at 955 and 956-957; 627 N.W.2d at 128 and 129.
In another case reviewed by this Court after a trial de novo in the district court under § 25-1937, this Court ruled that "the findings of the district court shall have the effect of a jury verdict and the court's judgment will not be set aside by an appellate court unless the court's factual findings are clearly erroneous or the court erred in its application of a law." In Re Olmer, 275 Neb. 852, 862, 725 N.W.2d 124, 131 (2008).
That is the applicable standard of review before this Court in the present case.
- 9 -

Thus, to the extent that any factual findings were made by the district court, they must be sustained unless clearly erroneous. The district court appears to have based its decision on "a matter of law," saying that the City Council's actions must be affirmed "under any standard." (T68).
As a general rule, attorneys fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorneys fees. Simon v. City of Omaha, 267 Neb. 718, 723, 677 N.W.2d 134 (2004). In this case, Plaintiffs point to the Nebraska Wage Payment and Collection Act as the basis for their attorneys fees request.
However, explicit case law in Nebraska establishes that severance payments are not covered by the Act.
The Act defines wages in pertinent part as "compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis." NEB. REV. STAT.
§ 48-1229 (Cum.Supp. 2008).
A line of Nebraska state and federal cases have held that such severance payments are not "wages" and are not covered by the Act. In Heimbouch v. Victorio Insurance Service, Inc., 220 Neb. 279,285-286, 369 N.W.2d 620, 624 (1985), this Court held that termination compensation was not covered by the Act.
This Court stated that termination compensation "was not compensation for labor or services rendered to the defendant, but was in the nature of a severance payment or liquidated damages which become due upon termination of the .
agreement." Id. - 10-

Similarly, in Babb v. United Food and Commercial Workers District Union, Local 271, 233 Neb. 826, 448 N.W.2d 168 (1989), a terminated employee sought severance pay based on a severance pay policy of the employer. This Court again ruled that the severance pay established by the policy was not covered by the Act. This Court stated: [T]he Nebraska Wage Payment and Collection Act applies only to actions to recover wages due the employee for labor or services performed for the employer.
The Act does not apply to severance payment which becomes due upon termination of employment.
Babb, 233 Neb. at 832, 448 N.W.2d at 172, citing Heimbouch, supra. The district court specifically cited the Babb and Heimbouch cases, as standing for the "clear rule in Nebraska...
that severance payments are not covered by the [NWPCA]." (T70).
Plaintiffs argue that the district court's reliance on Babb "is clearly misplaced," and they attempt to distinguish Babb. Appellants' Brief at pp. 23-24. In an attempt to distinguish Babb, Plaintiffs can only argue that "[i]n Babb the payment was not in any way tied to continued employment, was not a form of deferred compensation, and was not an incentive to remain employed with the labor union." Appellants' Brief at p. 24.
To the contrary, however, the Babb opinion does not state nor imply that the severance payment there was not "tied to continued employment," was not "deferred compensation," and was not "an incentive to remain employed." Plaintiffs fail to identify any evidence in the
Babb
opinion that the severance payment in that case "was not" those things.
Plaintiffs' attempt at distinguishing Babb is without basis.
Actually, Babb strikes many similarities with the present cases. Babb involved a merger between the "merged" union Local 1015 and the successor union Local 271-just as the present cases involve Elkhorn being annexed by Omaha. The plaintiff in Babb was an employee of the - 11 -

merged union, just as the Plaintiffs in the present cases were employees of the annexed City of Elkhorn.
In Babb, the merged union had a policy for the payment of severance pay to its officers, executed prior to the merger; similarly, Elkhorn had agreements with the Plaintiffs for severance payments upon termination, prior to the annexation. In
Babb,
the merger agreement provided that the successor union would assume all of the contract obligations of the merged union, just as in the present case NEB. REV. STAT.
§ 14-118 (Reissue 2007) provided that Omaha succeeded to all of the contracts and obligations of Elkhorn, upon the annexation. Given these similarities, Plaintiffs' attempt to distinguish Babb rings hollow.
It may also be noted that the United States District Court for the District of Nebraska has, III subsequent unreported cases, continued to follow Nebraska law holding that severance payments are not subject to the Nebraska Wage Payment and Collection Act. See, e.g., Rafos v.
Outboard Marine Corporation, 1992 W.L. 521530 (D. Neb. 1992)("[the Nebraska Wage Payment and Collection Act] is not, however, applicable to claims for monies due under a severance plan because such payments are not compensation for work performed"); Thomas v.
Great Western Bank, 2008 W.L. 5120499 (D.
Neb. 2008)(acknowledging the Babb rule); Mattes v.
Butterball, LLC, 2007 W.L. 2407031 (D.Neb. 2007)("The Nebraska Supreme Court has specifically held that the NWPCA does not apply to severance payment which becomes due .upon termination of payment").
Plaintiffs also attempt to cite excerpts from the City oj Omaha v.
City oj Elkhorn opinion in support of their position. See Appellants' Brief at p. 20. Plaintiffs assert that the case City oj Omaha v. City oj Elkhorn requires judgment in their favor in the present case, under the doctrines of res judicata and collateral estoppel.
[d.
Under the doctrine of collateral estoppel, also known as issue preclusion, an issue of ultimate fact that was determined by a valid and final judgment cannot be litigated again between - 12-

the same parties or their privities in any future lawsuit. Amanda C.
ex rel Richmond v. Case, 275
Neb. 757, 765, 749 N.W.2d 429, 437 (2008). Collateral estoppel is applicable where (1) an identical issue was decided in a prior action, (2) the prior action resulted in a judgment on the merits which was final, (3) the party against whom the doctrine is to be applied was a party or was in privity with the party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. Id. The related doctrine of res judicata is based on the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive upon the parties in any later litigation involving the same cause of action. Kirkland v. Abramson, 248 Neb. 675, 678, 538 N.W.2d 752, 755 (1995).
This Court has stated as follows regarding the doctrine of res judicata: Any right, fact, or matter in issue indirectly adjudicated in a prior proceeding, or necessarily involved in the determination of the action before a competent court in which the judgment or decree was rendered upon the merits, is conclusively settled by the judgment and may not be litigated again between the parties, whether the claim, demand, purpose, or subject matter of the suits would or would not be the same.
Security State Bank v. Gugelman,
230 Neb. 842,.845,434 N.W.2d 290, 292 (1989).
Comparison of the present case with the City of Omaha case shows the lack of any "identical issue." The "right, fact, or matter in issue" in City of Omaha was not the same as in the present case, and there certainly was not any "same cause of action."
City of Omaha
did not involve any issue as to whether the severance payments were "wages" covered by the Act.
That case did not involve the issue decided in Babb and
Heimbouch,
and raised again in the present case. The City of Omaha case did not address nor - 13 -

Interest as provided in section 45-103.02 shall not accrue prior to the date of entry of judgment for: 1) any action arising under Chapter 42; or 2) any action involving the state, a political subdivision of the state, or any employee of the state or any of its political subdivisions for any negligent or wrongful act or omission occurring within the scope of such employee's office or employment.
NEB. REV.
STAT.
§ 45-103.04. (Emphasis added.) Accordingly, in rejecting a claimant's request for prejudgment interest against a city, this Court has stated: "As to...claims accruing on or after January 1, 1987, as of that date NEB.
REv.
STAT.
§ 45-103.04 (Reissue 1988) went into effect and precluded claims for prejudgment interest against political subdivisions." Hammond v. City of Broken Bow, 239 Neb. 437, 446, 476 N.W.2d 822, 828 (1991).
In the present case, Plaintiffs simply cannot obtain prejudgment interest against the City of Omaha.
To get around § 45-103.04(2), Plaintiffs attempt to argue that it applies only to cases involving "negligence or wrongful act or omission." Appellants' Brief at p. 42. However, in
Hammond
v.
City of Broken Bow, supra, this Court did rule that § 49-103.04 did preclude a post January 1, 1987, claim for prejudgment interest, as to an underlying claim that did involve wages-which was obviously not "negligence or wrongful act or omission." Furthermore, Plaintiffs' interpretation does not make sense, under the language of the statute. The qualifying phrase "for any negligence or wrongful act or omission" is sandwiched between an immediately preceding reference to "any employee of the state or any of its political subdivisions" and a subsequent reference to "accruing within the scope of such employee's office or employment." Thus, that qualifying phrase is clearly made with reference to just the employee, that is - 15 -

referenced immediately before and immediately after that qualifying phrase.
The obvious concern is to ensure that prejudgment interest is prohibited only for an employee's wrongful acts "within the scope of such employee's office and employment," and that it does not preclude prejudgment interest that might be assessed against a person (who might just happen to be a government employee) for some personal reason.
Section 45-103.04 conclusively bars the prejudgment interest sought in this case.
A second problem is that Plaintiffs failed to file any claim for prejudgment interest with the City Comptroller. The Plaintiffs' respective August 29,2008, claims to the City Comptroller can be found at E3, 34-37:19, Vol. II, and Eckerman E3, 34-37:21, Vol. II. Those materials filed with the City Comptroller contain no claim for prejudgment interest.
NEB. REV. STAT.
§ 14-804 (Reissue 2007) states: Before any claim against the city, except officers' salaries earned within 12 months or interest on the public debt is allowed, the claimant or his agent or attorney shall verify the same by his affidavit. .. All claims against the city must be filed with the city comptroller. When the claim of any person against a city is disallowed, in whole or in part, by the city council, such person may appeal from the decision of said city council to the district court of the same county, as provided in section 14-813.
Accordingly, before a court may acquire jurisdiction over a claim against a city of the metropolitan class (Omaha), the procedures set out in § 14-804 must be followed. Coffelt v.
City
of Omaha, 223 Neb. 108, 110, 388 N.W.2d 467, 469 (1986). Compliance with § 14-804 is a "condition precedent to seeking relief through the courts." Halbleib v. City of Omaha, 222 Neb.
844, 846, 388 N.W.2d 60, 61 (1986).
While Plaintiffs may have later raised the issue of - 16 -

prejudgment interest as an afterthought, that does not excuse the failure to file such a claim with the City Comptroller as required by statute.
A further problem with the prejudgment interest claim is that there has never been any "judgment" to trigger such prejudgment interest.
Plaintiffs argue that they should receive prejudgment interest because their claim was "liquidated." Plaintiffs' Brief at pp. 39-40. As to liquidated claims, NEB.
REv.
STAT.
§ 45-103.02(2) (Reissue 2004) states: Except as provided in § 45-103.04, interest as provided in § 45-104 shall accrue on the unpaid balance of liquidated claims from the date the cause of action arose
until the entry ofjudgment.
NEB.
REv.
STAT.
§ 45-103.02(2)(emphasis added).
There must first be a judgment for the principal amount. This is suggested by the statute's reference to "entry of judgment." Indeed, this is inherently suggested by the term "prejudgment" interest.
the present case, the City Council awarded Plaintiffs the principal amounts of their respective severance payments and Plaintiffs do not dispute the amounts provided in those City Council awards. See Plaintiffs' Brief at p. 40. There has been no judgment ordering payment of the principal amounts. Thus, prejudgment interest has not been triggered and is simply an incongruent concept in this case.
Finally, even if for the sake of argument prejudgment interest could theoretically be assessed against the City of Omaha, it is inappropriate in this case because the claim was not liquidated.. Prejudgment interest may be awarded only as provided under NEB. REV. STAT.
§ 45-
103.02.
IEP, Inc.
v. Sands, 252 Neb. 573, 583, 563 N.W.2d 353, 359 (1997).
Section 45 103.02(1) deals with a plaintiff's offer of settlement, which is not at issue here. Again, § 45 103.02(2) only allows prejudgment interest on "liquidated" claims.
"Under section 45-103.02(2), prejudgment interest is recoverable only when the claim is liquidated, that is, when there is no reasonable controversy as to the plaintiff's right to recover - 17 -

and the amount of such recovery." Archbold v. Reifenrath, 274 Neb. 894,905,744 N.W.2d 701, 709 (2008). There must be no dispute as to the amount due and to the plaintiff's right to recover.
Id.
- In the present case there was a dispute as to the Plaintiffs' right to recover. The dispute as to the Plaintiffs' right to recover was so serious that the district court had entered a judgment declaring the severance provision at issue to be unconstitutional and void.
It was only after review by this Court that that ruling was reversed. See City of Omaha v.
City of Elkhorn, 276
Neb. 70, 752 N.W.2d 137 (2008).
The issues raised in that case were substantial and not frivolous.
There was at least a reasonable dispute as to the Plaintiffs' "right to recover." Furthermore, the City Council awarded severance payments that were less than the amounts sought in Plaintiffs' claims, and Plaintiffs do not contest such amounts. Their claimed amounts were not "liquidated." For all of these reasons, prejudgment interest was correctly denied.
CONCLUSION
The Omaha City Council acted correctly in approving severance payments to the Plaintiffs, while denying requested attorneys fees.
Furthermore, the Plaintiffs' requests for prejudgment interest are barred by law. This Court should affirm the decision of the district court, affirming the decision of the Omaha City Council.
CITY OF OMAHA, et al., Defendants B y_-='----_'--------'----= ALANM. THELEN, No. 17811 Deputy City Attorney 804 Omaha/Douglas Civic Center 1819 Farnam Street Omaha, NE 68183 (402) 444-5135 - 18 _