Lanham v. BNSF Ry. Co.

306 Neb. 124

944 N.W.2d 514 (Mem)

Alexander LANHAM, appellant and cross-appellee,

v.BNSF RAILWAY COMPANY, appellee and cross-appellant.

No. S-19-114.

Supreme Court of Nebraska.

Filed June 12, 2020

Corey L. Stull, Lincoln, and Jeanette Stull, of Atwood, Holsten, Brown, Deaver & Spier, P.C., L.L.O., and Christopher H. Leach, of Hubbell Law Firm, L.L.C., for appellant.

Nichole S. Bogen, Lincoln, of Lamson, Dugan & Murray, L.L.P., Wayne L. Robbins, Jr., of Robbins Travis, P.L.L.C., and Andrew S. Tulumello, of Gibson, Dunn & Crutcher, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

SUPPLEMENTAL OPINION

Per Curiam.

This case is before us on a motion for rehearing filed by the appellant and cross-appellee, Alexander Lanham, concerning our opinion in Lanham v. BNSF Railway Co.¹ While there is no substantive merit to the motion, Lanham correctly points out that a statutory citation, also used by the district court, addressed nonprofit corporations rather than for-profit corporations such as BNSF Railway Company. This had no effect upon the outcome of the appeal, as the two statutes are substantially identical. We overrule the motion, but we modify the original opinion to substitute the correct citation as follows:

In syllabus point 11,² we withdraw the reference to " Neb. Rev. Stat. § 21-19,152 (Reissue 2012)" and substitute " Neb. Rev. Stat. § 21-2,209 (Cum. Supp. 2018)."

We make two changes in the background section. We withdraw the phrase "Pursuant to Neb. Rev. Stat. § 21-19,152 (Reissue 2012)," in the fourth sentence of the third paragraph.³ In the first sentence of the fifth paragraph, we add "Neb. Rev. Stat." before " § 21-19,152" and "(Reissue 2012)" after the statute.⁴

We also modify the analysis section in five respects under the subheading "Consent by Registration. " In the eighth paragraph,⁵ after the first sentence, we add "Because § 21-19,152 applies to nonprofit corporations, the district court should have cited to Neb. Rev. Stat. § 21-2,209 (Cum. Supp. 2018), a nearly identical statute applicable to for-profit corporations like BNSF." We withdraw the ninth paragraph⁶ and substitute:

Section 21-2,209 provides:

... Each foreign corporation authorized to transact business in this state must continuously maintain in this state:

(1) A registered office that may be the same as any of its places of business; and

(2) A registered agent, who may be:

(i) An individual who resides in this state and whose business office is identical with the registered office;

(ii) A domestic corporation or not-for-profit domestic corporation whose business office is identical with the registered office; or

(iii) A foreign corporation or foreign not-for-profit corporation authorized to transact business in this state whose business office is identical with the registered office.

In the 10th paragraph,⁷ we substitute "21-2,209" for "21-19,152" in the first and third sentences. Finally, in the second sentence of the last paragraph of the subsection,⁸ we substitute "21-2,209" for "21-19,152."

The remainder of the opinion shall remain unmodified.

FORMER OPINION MODIFIED .

MOTION FOR REHEARING OVERRULED .

1 Lanham v. BNSF Railway Co. , 305 Neb. 124, 939 N.W.2d 363 (2020).

2 Id. at 125, 939 N.W.2d at 363.

3 Id. at 126, 939 N.W.2d at 366.

4 Id. at 127, 939 N.W.2d at 366.

5 Id. at 133, 939 N.W.2d at 370.

6 Id. at 133-34, 939 N.W.2d at 370.

7 Id. at 134, 939 N.W.2d at 370.

8 Id. at 135, 939 N.W.2d at 371.