STOREVISIONS, INC. v. OMAHA TRIBE OF NEBRASKA, 802 N.W.2d 420 (2011)
Court: Supreme Court of Nebraska
Number: inneco20110722316
Visitors: 25
Filed: Jul. 22, 2011
Latest Update: Jul. 22, 2011
Summary: SUPPLEMENTAL OPINION 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., 281 Neb. 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, 795 N.W.2d at 280, and substitute the following: The situation presen
Summary: SUPPLEMENTAL OPINION 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., 281 Neb. 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, 795 N.W.2d at 280, and substitute the following: The situation present..
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SUPPLEMENTAL OPINION
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., 281 Neb. 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, 795 N.W.2d at 280, and substitute the following:
The situation presented by this appeal is virtually identical to the one presented in Rush Creek Solutions [Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402 (Colo. App.2004)]. One difference 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 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 organizational 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 authority 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.
Source: Leagle
