Chicago Lumber Co. of Omaha v. Selvera

that the trust was liable for the full amount of the guaranty,
$500,000, is supported by the evidence and not clearly wrong.
We therefore affirm the judgment of the district court.
A ffirmed.
Wright, C onnolly, and mCC ormACk, JJ., not participating.
the C hiCAgo lumber C ompAny of omAhA, A nebrAskA
CorporAtion, AppellAnt, v. JoA nn selverA,
An individuAl , et Al ., Appellees.
809 N.W.2d 469
Filed August 5, 2011. 	No. S-10-741.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory construction is a question of law that an
appellate court decides independently of the trial court.
4. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing cross-
motions for summary judgment, an appellate court acquires jurisdiction over both
motions and may determine the controversy that is the subject of those motions;
an appellate court may also specify the issues as to which questions of fact
remain and direct further proceedings as the court deems necessary.
5. Summary Judgment: Proof. A party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
6. Mechanics’ Liens: Intent: Words and Phrases. Under Neb. Rev. Stat.
§ 52-157(2) (Reissue 2010), one acts in “bad faith” if the claimant either knows
its lien is invalid or overstated or acts with reckless disregard as to such facts.
7. Mechanics’ Liens: Notice. Sending a copy of a recorded lien to a contracting
owner under Neb. Rev. Stat. § 52-135(3) (Reissue 2010) is a prerequisite for
foreclosing the lien.
8. Attorney Fees: Appeal and Error. On appeal, an appellate court will uphold a
lower court’s decision allowing or disallowing attorney fees for frivolous or bad
faith litigation in the absence of an abuse of discretion.
9. Actions: Attorney Fees. Attorney fees can be awarded when a party brings an
action that is without rational argument based on law and evidence.
12 	282 NebRASkA RepORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

10. Attorney Fees: Words and Phrases. Regarding bad faith litigation, the term
“frivolous” connotes an improper motive or legal position so wholly without
merit as to be ridiculous.
11. Trial: Attorney Fees: Pleadings. Attorney fees for a bad faith action under Neb.
Rev. Stat. § 25-824 (Reissue 2008) may be awarded when the action is filed for
purposes of delay or harassment.
12. Actions. Relitigating the same issue between the same parties may amount to
bad faith.
13. ____. Any doubt whether a legal position is frivolous or taken in bad faith should
be resolved for the party whose legal position is in question.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J. miChAel C offey, Judge. Reversed and remanded for further
proceedings.
Angela L. burmeister and Angela M. boyer, of berkshire &
burmeister, for appellant.
emmett 	D. 	Childers, 	of 	Hillman, 	Forman, 	Childers 	&
McCormack, for appellee JoAnn Selvera.
heAviCAn, C.J., C onnolly, gerrArd, stephAn, and miller-
lermAn, JJ.
C onnolly, J.
the Chicago Lumber Company of Omaha (Chicago Lumber)
recorded a construction lien on JoAnn Selvera’s home and sued
to foreclose the lien. Selvera brought a counterclaim under
Neb. Rev. Stat. § 52-157 (Reissue 2010), which provides a
remedy against claimants who, in bad faith, file liens, over-
state liens, or refuse to release liens. Chicago Lumber eventu-
ally withdrew its foreclosure action and released its lien, but
Selvera maintained her suit. the court later granted Selvera
summary judgment on her bad faith claim and awarded her
$10,000 in attorney fees.
because Chicago Lumber had a reasonable belief that its
lien was valid—at least before it received Selvera’s clarifying
documents—Chicago Lumber did not act in bad faith. but after
it received these documents, questions of fact exist whether
Chicago Lumber was acting in bad faith. We reverse, and
remand for further proceedings.
CHICAgO LUMbeR CO. OF OMAHA v. SeLveRA 	13
Cite as 282 Neb. 12

I. bACkgROUND
After a fire damaged Selvera’s home, she contracted with
turnbull, Jenkins & krueger Construction, Inc. (turnbull), to
reconstruct part of her home. turnbull, in turn, contracted with
Chicago Lumber to provide material for the project.
While working on Selvera’s home, turnbull abandoned the
project and breached the contract with Selvera. At the time
of the breach, turnbull had not paid Chicago Lumber for all
the materials that it had provided and owed Chicago Lumber
$1,034.13.
because Chicago Lumber had not been paid, it recorded
a lien on Selvera’s property. Selvera claimed that she never
received a copy of the lien. but a secretary who worked at the
law office representing Chicago Lumber stated in an affidavit
that it was the regular policy and procedure of the firm to mail
copies of all recorded liens to the homeowner whose home
was subject to a lien. She stated that she typically mailed these
copies on the same day that the liens were recorded. And she
recalled doing so with all the liens that she handled during her
time with the firm.
In September 2007, Chicago Lumber sued to foreclose its
lien on Selvera’s property. In her answer, Selvera asserted that
she was a protected party under the Nebraska Construction Lien
Act (NCLA).1 Selvera also counterclaimed under § 52-157,
alleging that Chicago Lumber had refused to release its lien
even though it was unenforceable. Attached to her answer,
Selvera included exhibits, one of which was two pages long.
We refer to this exhibit as “exhibit b.”
exhibit b appeared to be an invoice or account state-
ment from turnbull to Selvera. the first page seems to track
the payments that Selvera made and her outstanding bal-
ance with turnbull. the first page indicates that Selvera still
owed turnbull $131,800. the second page, however, sets out
turnbull’s profit and overhead and inconsistently states that
turnbull owed Selvera $14,912.88.
the record indicates that Chicago Lumber made several
attempts to reconcile these two pages, which the company
1 Neb. Rev. Stat. § 52-125 et seq. (Reissue 2010).
14 	282 NebRASkA RepORtS

claimed were confusing. Chicago Lumber claims that exhibit
b did not clearly show whether Selvera had paid turnbull the
full amount because one page seemed to indicate that Selvera
owed turnbull money while the next indicated the opposite.
At oral argument, Selvera’s counsel admitted that the joining
of the two pages in exhibit b was an inadvertent mistake and
probably was confusing.
Later, in February 2009, about 17 months after she first pre-
sented exhibit b, Selvera submitted another two-page exhibit
with another affidavit. the second page was the same as the
second page to exhibit b. the first page, however, was differ-
ent. this first page listed costs for labor, materials, and sub-
contractors. the numbers from the first page corresponded to
the numbers on the second, and thus supported Selvera’s claim
that she had paid turnbull in full. Along with this document,
Selvera also submitted an affidavit of the vice president of
turnbull stating that Selvera owed no money to turnbull under
the contract.
In late February 2009, shortly after receiving this new docu-
ment, Chicago Lumber dismissed its action to foreclose. In
May, it released its lien on Selvera’s property. Selvera, how-
ever, maintained her counterclaim against Chicago Lumber.
the parties eventually moved for summary judgment on
Selvera’s counterclaim. Chicago Lumber also moved for “Rule
11 Sanctions.” It claimed that Selvera should have to pay the
costs that Chicago Lumber incurred in prosecuting and defend-
ing the actions.
the court granted summary judgment to Selvera. It found
that she had fully paid the contract and that she had not received
a copy of the lien. the court concluded that providing a copy
to the homeowner was a prerequisite to a valid lien. because
Selvera had never received a copy, the lien was invalid. Finally,
the court concluded that Chicago Lumber’s failure to dismiss
its action until February 2009 and its failure to release the
lien until the following May constituted bad faith. the court
awarded Selvera $10,000 in attorney fees.
II. ASSIgNMeNtS OF eRROR
Chicago Lumber assigns, restated and renumbered, that the
district court erred in (1) granting Selvera, and not Chicago
CHICAgO LUMbeR CO. OF OMAHA v. SeLveRA 	15
Cite as 282 Neb. 12

Lumber, summary judgment under § 52-157; (2) granting
Selvera attorney fees; and (3) failing to sanction Selvera.
III. StANDARD OF RevIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.2 In reviewing a summary judg-
ment, we view the evidence in a light most favorable to the
party against whom the judgment is granted and give such
party the benefit of all reasonable inferences deducible from
the evidence.3
[3] Statutory construction is a question of law that we decide
independently of the trial court.4
Iv. ANALYSIS
1. summAry Judgment under § 52-157
In 	granting 	summary 	judgment 	to 	Selvera, 	the 	district
court found that Selvera had not received a copy of Chicago
Lumber’s lien within 10 days of its recording and that thus,
the lien was invalid.5 Further, the court concluded that Chicago
Lumber’s refusal to release the lien until May 2009 constituted
bad faith.
[4,5] When reviewing cross-motions for summary judgment,
we acquire jurisdiction over both motions and may determine
the controversy that is the subject of those motions; we may
also specify the issues as to which questions of fact remain
and direct further proceedings as we deem necessary.6 A party
moving for summary judgment must make a prima facie case
by producing enough evidence to demonstrate that the movant
2 Freedom Fin. Group v. Woolley, 280 Neb. 825, 792 N.W.2d 134 (2010).
3 Id.
4 See State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
5 See § 52-135(3).
6 See, Builders Supply Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645
(2008); State Farm Mut. Auto. Ins. Co. v. Cheeper’s Rent-A-Car, 259 Neb.
1003, 614 N.W.2d 302 (2000).
16 	282 NebRASkA RepORtS

is entitled to judgment if the evidence were uncontroverted
at trial.7
Section 52-157(2) addresses bad faith claims. It provides:
If in bad faith a claimant records a lien, overstates the
amount for which he or she is entitled to a lien, or refuses
to execute a release of a lien, the court may:
(a) Declare his or her lien void; and
(b) Award damages to the owner or any other person
injured thereby.
Under this section, a court may invalidate a lien and award dam-
ages, which may include attorney fees,8 if the claimant acts in
bad faith. It is undisputed that Chicago Lumber recorded a lien
on Selvera’s property and initially refused Selvera’s requests to
release the lien. So, the only factor at issue is whether Chicago
Lumber acted in bad faith.
Under § 52-157(2), bad faith will invalidate a lien and pro-
vide a basis for awarding damages. but the statute does not
define “bad faith.” We have previously discussed bad faith
that would invalidate a lien in the context of mechanics’ liens,
although before the enactment of the NCLA. We have stated
that a claimant could not enforce a lien “‘[w]here a claimant,
either by gross carelessness or by design, puts upon record a
statement which he knows, or which by the exercise of reason-
able and proper diligence he might have known, to be errone-
ous and unjust . . . .’”9 but if the errors are the result of mistake
and no element of willfulness appears, then we will not invali-
date a lien.10
[6] In these prior cases, we were perhaps a bit loose with our
language. the above-quoted language could lead some to think
that mere negligence would suffice to invalidate a lien. but
7 Builders Supply Co., supra note 6.
8 § 52-157(3).
9 LaPuzza v. Prom Town House Motor Inn, Inc., 191 Neb. 687, 692, 217
N.W.2d 472, 477 (1974), quoting Central Construction Co. v. Highsmith,
155 Neb. 113, 50 N.W.2d 817 (1952). See, also, Knoell Constr. Co., Inc.
v. Hanson, 205 Neb. 305, 287 N.W.2d 435 (1980); Rosebud Lumber and
Coal Co. v. Holms, 155 Neb. 459, 52 N.W.2d 313 (1952).
10 See LaPuzza, supra note 9.
CHICAgO LUMbeR CO. OF OMAHA v. SeLveRA 	17
Cite as 282 Neb. 12

other language in these cases indicated that an element of will-
fulness was required. today, we conclude that to act with bad
faith, one must either know his or her lien is invalid or over-
stated or act with reckless disregard as to such facts. We base
our conclusion on the fact that the Legislature included the
term “bad faith.” An act taken in bad faith, by definition, can-
not be unintentional.11 the Legislature has made clear that hon-
est mistakes should not invalidate construction liens and sub-
ject a party to damages under § 52-157. Requiring knowledge
or recklessness to invalidate the lien ensures that the claimant
has the culpable mental state that the Legislature desired.
Here, the inquiry is whether Chicago Lumber knew that
its lien was invalid or overstated or that it acted with reckless
disregard in such belief when it refused to release it. As the
district court and parties have framed the issues, there are two
possible defects in Chicago Lumber’s lien: whether Selvera had
fully paid her contract with turnbull, which would mean that
Selvera had no lien liability; and whether she had received a
copy of the lien.
the focus of the test for bad faith is on Chicago Lumber’s
state of mind during its refusal to release its lien. Did the
company know, or was it reckless as to whether, its lien was
invalid? Whether its lien is actually invalid is not the ques-
tion under § 52-157(2). A lien could ultimately be found to be
overstated without the claimant necessarily acting in bad faith.
When a claimant is honestly mistaken about the validity of its
lien and does not recklessly disregard facts showing its lien
may be invalid, the person on whose property the lien was filed
would not be entitled to damages. So we focus on whether the
facts show Chicago Lumber knew or was reckless as to whether
its lien was invalid when it refused to release its lien.
Chicago Lumber argues that it did not act in bad faith and
thus, the district court erred in granting Selvera summary judg-
ment. It argues that it did not release its lien because questions
of fact existed whether Selvera received a copy of the lien and
whether Selvera had paid the prime contract in full. It argues
11 See, e.g., Weatherly v. Blue Cross Blue Shield, 2 Neb. App. 669, 513
N.W.2d 347 (1994).
18 	282 NebRASkA RepORtS

that it could not have been acting in bad faith when it had a
reasonable basis for believing that it had a valid lien. Chicago
Lumber argues that the court should have awarded it sum-
mary judgment.
(a) Did Chicago Lumber Act in bad Faith Regarding
Whether Selvera Had paid in Full?
Selvera argues that under § 52-136(2), she had no lien
liability to Chicago Lumber. Section 52-136(2) provides that
the amount of the lien is the lesser of the amount unpaid under
the claimant’s contract or the amount unpaid under the prime
contract. the former would be Chicago Lumber’s contract with
turnbull, under which Chicago Lumber was owed $1,034.13.
the latter “prime contract” is Selvera’s contract with turnbull.
Selvera argues that she had fully paid turnbull for the work the
company did and so there was no amount unpaid under the con-
tract. therefore, the amount of any lien Chicago Lumber had
would be $0. She argues that she provided Chicago Lumber
with documentation showing that she had paid in full and that
its refusal to release a lien it knew was worthless amounts to
bad faith.
(i) Chicago Lumber Did Not Act in Bad Faith Before
It Received Clarifying Documents Because
Selvera’s Exhibit Was Confusing
As noted, Selvera attached a two-page document, exhibit b,
to her answer. Chicago Lumber claimed that these two pages
were confusing. We agree. the calculations from the two pages
simply do not match up; one page states that Selvera owed
turnbull $131,800 while the next page states that turnbull
owes Selvera $14,912.88. As Selvera conceded during oral
argument, the original exhibit b was mistakenly joined and
probably was confusing. Selvera did not explain this discrep-
ancy until February 2009, when she provided additional docu-
mentation. this documentation included the correct documents
and an affidavit from turnbull’s vice president stating that
Selvera owed the company no money.
to have acted in bad faith, Chicago Lumber would have
had to refuse to release its lien either knowing it was invalid
or overstated or acting with reckless disregard as to such
CHICAgO LUMbeR CO. OF OMAHA v. SeLveRA 	19
Cite as 282 Neb. 12

facts. Selvera has presented no evidence of either. In fact,
when faced with an internally inconsistent document, Chicago
Lumber did what any commercially reasonable business would
do: it sought answers through correspondence with Selvera and
later through the discovery process. but the answers did not
come until Selvera filed additional affidavits in February 2009.
Shortly after receiving documentation showing that Selvera
had paid in full, Chicago Lumber dismissed its foreclosure
action. A couple of months later, Chicago Lumber released
its lien.
Selvera has failed to show that Chicago Lumber had exer-
cised bad faith in maintaining its lien before she supplied the
correct documentation. the evidence submitted showed that
Chicago Lumber made reasonable attempts to ascertain whether
Selvera had fully paid the turnbull contract. We conclude that
the district court erred in ruling that Chicago Lumber acted in
bad faith in refusing to release a lien when there were ques-
tions of fact whether Selvera owed money to turnbull.
(ii) An Issue of Fact Exists as to Whether Chicago
Lumber Acted in Bad Faith After Selvera Had
Provided Clarifying Documents
Chicago Lumber, however, did not immediately release its
lien upon receiving the correct documents from Selvera in
February 2009. It waited until May to release its lien. this
was a period of almost 3 months. During this interval, Chicago
Lumber had documents seemingly indicating that Selvera had
overpaid turnbull and an affidavit from turnbull indicating the
same. We do not, however, believe that this shows as a matter
of law that Chicago Lumber was acting in bad faith. Chicago
Lumber, already the recipient of mismatched documents, could
justifiably be hesitant to immediately release its lien. A ques-
tion of fact remains as to whether this was merely innocent
reluctance or bad faith.
Summing up, Selvera presented no evidence that Chicago
Lumber acted in bad faith before she presented the company
with the correct documents. the evidence fails to show that
Chicago Lumber knew its lien was invalid or overstated. Nor
does the evidence show that it was reckless as to such facts.
20 	282 NebRASkA RepORtS

After Selvera presented the correct documentation, however, a
question of fact exists as to whether Chicago Lumber was act-
ing in bad faith.
(b) Chicago Lumber Had a Basis for Believing That
Selvera Had Received a Copy of the Lien
the district court found that Selvera had not received a copy
of the lien. It concluded that such a copy was required for an
enforceable lien. Although the court did not mention whether
Chicago Lumber knew that Selvera had not received a copy of
the recorded lien, it then determined that Chicago Lumber’s
failure to release the lien was bad faith. Chicago Lumber
argues that the court erred in granting summary judgment to
Selvera because Chicago Lumber “had reason to believe that it
had an enforceable lien against [Selvera]”12 and, thus, was not
acting in bad faith.
Section 52-135(3) provides that “[t]he claimant shall send
a copy of a recorded lien to the contracting owner within ten
days after recording, and the recording shall be within the time
specified for the filing of liens under section 52-137.” Selvera
claims that she never received a copy of the lien, which ren-
dered Chicago Lumber’s lien unenforceable, and that Chicago
Lumber acted in bad faith by not releasing its lien. Chicago
Lumber views it differently. It claims that the secretary’s affi-
davit—in which she stated that it was the firm’s usual practice
to send out copies the day that liens are recorded and that
this practice was followed that day—created a presumption
of receipt.13
As a preliminary matter, we note that there is no dispute
that Selvera is a protected party under the NCLA.14 the NCLA
governs notice to an owner and applies only if the owner is a
protected party.15
12 brief for appellant at 28.
13 See, e.g., City of Lincoln v. MJM, Inc., 9 Neb. App. 715, 618 N.W.2d 710
(2000).
14 See § 52-129.
15 See § 52-135(6).
CHICAgO LUMbeR CO. OF OMAHA v. SeLveRA 	21
Cite as 282 Neb. 12

[7] We have previously stated that giving notice of a right to
assert a lien under § 52-135(1) was permissive, and not manda-
tory, because that subsection uses the word “may.”16 but unlike
subsection (1), subsection (3) uses the directive “shall.” In
drafting subsection (3), the Legislature obviously desired that
property owners would receive notice and have an opportunity
to respond and protect their property. to allow a claimant to
foreclose a lien without providing a copy of that lien would
undermine the Legislature’s intent of giving owners notice and
a better opportunity to defend their property. Finally, under
our previous construction lien statutes, the claimant’s failure
to send notice of the recorded lien within the statutory time
limit rendered the lien void and unenforceable.17 We conclude
that sending a copy of a recorded lien under § 52-135(3) is a
prerequisite to foreclosing a lien under the NCLA.
As stated, however, under § 52-157, the question is not the
lien’s actual validity, but whether Chicago Lumber acted in bad
faith. Selvera does not show bad faith by merely stating that
she never got a copy of the lien; she must present evidence
that Chicago Lumber knew Selvera had not received the copy
or that it recklessly disregarded facts showing that she had not
received a copy when it refused to release the lien.
We conclude that Selvera has failed to present any evidence
that creates an issue of fact on Chicago Lumber’s alleged bad
faith. She failed to show that Chicago Lumber actually knew
she had not received a copy of the lien or that it was reckless as
to that fact. In contrast, Chicago Lumber presented an affidavit
detailing its usual custom in sending copies of liens and stating
that the practices were followed that day. It had a reasonable
basis for believing that Selvera had received a copy. the court
erred in granting Selvera summary judgment because Selvera
had presented no evidence of Chicago Lumber’s bad faith as to
whether it had provided Selvera a copy of the lien.
16 Midlands Rental & Mach. v. Christensen Ltd., 252 Neb. 806, 566 N.W.2d
115 (1997).
17 Neb. Rev. Stat. § 52-103 (Reissue 1978). See, also, Waite Lumber Co., Inc.
v. Carpenter, 205 Neb. 860, 290 N.W.2d 655 (1980).
22 	282 NebRASkA RepORtS

2. Attorney fees under neb. rev. stAt.
§ 25-824 (reissue 2008)
because we conclude that the court erred in granting Selvera
summary judgment on her bad faith claim under § 52-157, it
was error to award Selvera attorney fees under that section.
but Selvera also argues that she should receive attorney fees
for defending the foreclosure action under § 25-824. to the
extent that the award of attorney fees rested upon § 25-824, we
conclude that it too was error.
[8-13] On appeal, we will uphold a lower court’s deci-
sion allowing or disallowing attorney fees for frivolous or
bad faith litigation in the absence of an abuse of discretion.18
Attorney fees can be awarded when a party brings a frivolous
action that is without rational argument based on law and
evidence.19 We have also previously explained that the term
“frivolous” connotes an improper motive or legal position so
wholly without merit as to be ridiculous.20 Attorney fees for
a bad faith action under § 25-824 may also be awarded when
the action is filed for purposes of delay or harassment.21 We
have also said that relitigating the same issue between the
same parties may amount to bad faith.22 Finally, any doubt
whether a legal position is frivolous or taken in bad faith
should be resolved for the party whose legal position is
in question.23
Again, we conclude that Chicago Lumber had a reasonable
basis for believing it had an enforceable lien. A suit to fore-
close that lien would thus have a rational basis in law and fact.
18 See Brummels v. Tomasek, 273 Neb. 573, 731 N.W.2d 585 (2007), over-
ruled on other grounds, Knights of Columbus Council 3152 v. KFS BD,
Inc., 280 Neb. 904, 791 N.W.2d 317 (2010).
19 See TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
20 See id.
21 § 25-824(4). See, also, Malicky v. Heyen, 251 Neb. 891, 560 N.W.2d 773
(1997).
22 See, e.g., Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d
38 (1993).
23 See id.
CHICAgO LUMbeR CO. OF OMAHA v. SeLveRA 	23
Cite as 282 Neb. 12

the record fails to show that Chicago Lumber had an improper
motive when it sued to foreclose the lien. Nor was Chicago
Lumber’s legal position unreasonable. We conclude that the
district court abused its discretion in awarding attorney fees
to Selvera.
3. C hiCAgo lumber’s requests for sAnCtions
Chicago Lumber argues that the court erred in not impos-
ing sanctions on Selvera. Chicago Lumber claims that Selvera
brought 	her 	counterclaim 	in 	bad 	faith 	and 	contends 	that
Selvera’s tactics in prosecuting her claim, namely presenting
the court with exhibit b, warranted an award of attorney fees
to Chicago Lumber.
We note that Chicago Lumber filed a motion for “Rule 11
Sanctions.” We assume this motion refers to Neb. Ct. R. pldg.
§ 6-1111 (rev. 2008). the comment to § 6-1111 states that bad
faith or frivolous litigation is subject to sanction under Neb.
Rev. Stat. §§ 25-824 to 25-824.03 (Reissue 2008). We will thus
treat this as a motion under § 25-824.
Applying § 25-824 and the standards previously discussed,
we conclude that Selvera did not bring her counterclaim in bad
faith. the difficulties that arose stem largely from the ambig-
uous exhibit b attached to Selvera’s counterclaim. Selvera
apparently believed that she had paid in full and tried to provide
Chicago Lumber with documents to that effect. Unfortunately,
the exhibit was confusing. Selvera apparently did not realize
the error until late in the action. We do not believe that her
apparently innocent reliance on exhibit b, which was confus-
ing, amounts to bad faith. the court did not abuse its discretion
in refusing to award attorney fees to Chicago Lumber.
v. CONCLUSION
We conclude that the court erred in granting Selvera sum-
mary judgment. exhibit b was confusing, and so Chicago
Lumber was not acting in bad faith when it refused to release
its lien. the company was reasonably seeking answers. but
after Chicago Lumber had received proper documentation,
there is a genuine issue of fact whether the company acted in
24 	282 NebRASkA RepORtS

bad faith by not releasing its lien. Finally, we conclude that
neither side is entitled to attorney fees under § 25-824.
reversed And remAnded for
further proCeedings.
Wright and mCC ormACk, JJ., not participating.
MUeLLeR v. LINCOLN pUbLIC SCHOOLS 	25
Cite as 282 Neb. 25
Joni mueller , Appellee , v. linColn publiC
sChools , AppellAnt.
803 N.W.2d 408
Filed August 5, 2011. 	No. S-10-748.
1. Workers’ Compensation: Wages. the determination of how the average weekly
wage of a workers’ compensation claimant should be calculated is a question
of law.
2. Workers’ Compensation: Appeal and Error. Regarding questions of law, an
appellate court in workers’ compensation cases is obligated to make its own
decisions.
3. Employer and Employee: Wages. In calculating an employee’s average weekly
wage, abnormally low workweeks resulting from circumstances such as vacation
time, sick leave, or holidays should be excluded from the calculation.
4. Workers’ Compensation. the goal of any average income test is to produce
an honest approximation of a workers’ compensation claimant’s probable future
earning capacity. the emphasis is on not distorting the employee’s average
weekly wage.
5. Stipulations. the construction of a stipulation is a question of law.
Appeal from the Workers’ Compensation Court. Reversed
and remanded with directions.
Riko e. bishop, of perry, guthery, Haase & gessford, p.C.,
L.L.O., for appellant.
Jon Rehm, of Rehm, bennett & Moore, p.C., L.L.O., for
appellee.
heAviCAn, C.J., C onnolly, gerrArd, stephAn, mCC ormACk ,
and miller-lermAn, JJ.
gerrArd, J.
Joni Mueller, an employee of the Lincoln public Schools
(LpS), was awarded workers’ compensation benefits after she