Main St Properties v. City of Bellevue , 309 Neb. 738 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/17/2021 12:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738Main St Properties LLC, appellant, v.
City of Bellevue, Nebraska,
et al., appellees.
___ N.W.2d ___
Filed July 16, 2021. No. S-20-802.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion indepen-
dent of the lower court’s decision.
2. Special Assessments: Municipal Corporations. Neb. Rev. Stat.
§ 19-2422 (Cum. Supp. 2020) applies to and authorizes an appeal
from a special assessment levied under the authority of Neb. Rev. Stat.
§ 18-1722(1) (Reissue 2012).
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Reversed and remanded for further
proceedings.
Thomas G. Schumacher, Jason M. Bruno, and Robert S.
Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellant.
Heather B. Veik, of Erickson & Sederstrom, P.C., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Main St Properties LLC (MSP) appeals the order of the
­district court for Sarpy County which dismissed MSP’s
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738“Petition to Appeal Assessment of Bellevue Board of
Equalization” for lack of jurisdiction. MSP wished to appeal a
resolution of the City of Bellevue (City) which placed liens on
property owned by MSP in order to collect costs that had been
assessed for the demolition and removal of a structure on the
property. MSP contends that the resolution levied a “special
assessment” pursuant to Neb. Rev. Stat. § 18-1722 (Reissue
2012), and it sought appeal under Neb. Rev. Stat. § 19-2422(Cum. Supp. 2020), which authorizes an appeal to the district
court for “[a]ny owner of real property who feels aggrieved
by the levy of any special assessment . . . .” The court deter-
mined that no special assessment was imposed and that there-
fore, § 19-2422 did not apply. The court sustained the City’s
motion to dismiss. In connection with its reasoning, the court
concluded that MSP had failed to seek review as a petition in
error under Neb. Rev. Stat. § 25-1901 et seq. (Reissue 2016 &
Cum. Supp. 2020) and that the court therefore lacked subject
matter jurisdiction.
We conclude that § 19-2422 authorized MSP’s appeal of the
resolution which levied a special assessment and placed a lien
on the property. We therefore reverse the district court’s dis-
missal based on lack of jurisdiction and remand the cause for
further proceedings.
STATEMENT OF FACTS
MSP owns real property located in Bellevue, Nebraska. In
February 2020, the city council passed a resolution condemn-
ing a structure on MSP’s property as being a public nuisance,
unsafe for human occupancy, unsanitary, and in a dangerous
condition. The resolution directed MSP to cause the structure
to be torn down, the debris removed, and the premises placed
in safe condition by March 4. When MSP failed to comply with
the resolution, the City hired a contractor and had the struc-
ture demolished.
In June 2020, a building official for the City sent notice
to MSP stating that MSP owed the City $25,320 for costs
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309 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738the City incurred to demolish the structure. The notice stated
that failure to reimburse the City would result in a lien being
placed on the property. When MSP failed to pay the costs,
the City set a hearing before the city council sitting as the
Bellevue Board of Equalization (Board of Equalization). MSP
appeared at the hearing held July 21 and generally argued that
the contractor hired by the City failed to adequately perform
the work and that additional work would be required to com-
plete the demolition.
At the end of the hearing, the Board of Equalization passed
a resolution dated July 21, 2020. The resolution of July 21
forms the basis of this appeal and, as explained below, levied a
special assessment and placed a lien on the property. The reso-
lution was signed by the mayor on behalf of the City, approved
as to form by the city attorney, and attested to by the city clerk.
The resolution stated that MSP had been billed by the City
for costs of $25,320 associated with demolition and removal
of the structure, that such costs had not been paid to the City,
that MSP had been given notice of the hearing at which MSP
“would have an opportunity to show cause why these costs
should not be placed as liens against the properties,” and that
prior to the hearing, MSP had filed “written objections to the
assessment of the costs” and “protest[ed] the City’s lien against
the property.” (Emphasis supplied.) In the resolution, it was
resolved that “the amounts as shown above for costs associated
with the demolition and removal of a structure and associated
clean-up costs at the locations identified above, be placed as
liens against the properties so listed and that said liens shall
draw interest.” It was further resolved that
notice of such lien shall be forwarded to the County
Treasurer of Sarpy County, Nebraska with instructions
to place upon the records in the office of the County
Treasurer the imposition of these liens upon the proper-
ties listed and said County Treasurer shall be authorized
to collect the payment of these liens, including interest,
for the City.
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738On August 12, 2020, MSP filed a petition in the district
court seeking review of the resolution. MSP titled the peti-
tion as “Petition to Appeal Assessment of Bellevue Board of
Equalization” and named the City, the Board of Equalization,
and the city clerk, Susan Kluthe, as defendants. MSP alleged
that the court had jurisdiction of the appeal pursuant to
§ 19-2422, which provides for appeal of “any special assess-
ment.” MSP alleged that the July 21, 2020, resolution was a
special assessment under § 19-2422 and that it “wrongfully and
arbitrarily lev[ied] a lien in the amount of $25,320.00 against
[MSP’s] property.”
Regarding the substance of its appeal, MSP alleged that the
contractor hired by the City failed to complete its work on the
property in various respects. MSP alleged that it had notified
the City of the contractor’s failures but that the City neverthe-
less sent MSP a notice that it was required to reimburse the
City in full for costs the City had paid to the contractor. MSP
alleged that it would cost at least $18,000 to correct the work
performed by the City’s contractor and to complete the demo-
lition and removal. MSP alleged that it presented evidence of
these allegations to the Board of Equalization at the July 21,
2020, hearing but that the Board of Equalization “wholly dis­
regarded” the evidence.
With regard to procedural aspects of the appeal, MSP noted
that pursuant to Neb. Rev. Stat. § 19-2423 (Cum. Supp. 2020),
an owner appealing a special assessment pursuant to § 19-2422
must, within 10 days from the levy of the special assessment,
file a notice of appeal with the city clerk and post a bond in
the amount of $200. MSP further noted that pursuant to Neb.
Rev. Stat. § 19-2424 (Cum. Supp. 2020), it was required to
request and pay the estimated cost for preparation of a tran-
script, and that upon such request and payment, the city clerk
was required to cause a complete transcript of the proceedings
before the City to be prepared. MSP finally noted that pursu-
ant to Neb. Rev. Stat. § 19-2425 (Cum. Supp. 2020), within
30 days of the special assessment being appealed pursuant to
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738§ 19-2422, it was required to file in the district court a petition
on appeal together with a transcript of the proceedings before
the City.
Regarding compliance with these requirements, MSP alleged
that on July 29, 2020, its counsel attempted to hand deliver
and file a notice of appeal, a request for transcript, and a $200
cash bond with the city clerk, Kluthe. MSP alleged that Kluthe
“arbitrarily refused to accept” the filings, but that it neverthe-
less left the filings in the city clerk’s office. MSP alleged that it
followed up with Kluthe on August 3 to inquire when the tran-
script would be ready for MSP to pick up and that on August
7, Kluthe furnished MSP an audio file, but no formal transcript,
of the hearing. MSP attached a copy of the audio file to its
petition. MSP alleged that it had not received confirmation that
Kluthe planned to prepare a transcript of the proceedings. MSP
alleged that the City and Kluthe were “actively and purposely
obstructing and interfering with MSP’s rights to have its appeal
heard and tried” by the district court.
MSP set forth two causes of action. In the first cause of
action, MSP sought reversal of the July 21, 2020, resolution
assessing costs of $25,320 and placing a lien on MSP’s prop-
erty. In the second cause of action, MSP sought a writ of man-
damus to compel Kluthe to furnish a transcript of the hearing.
The defendants filed a motion to dismiss pursuant to Neb.
Ct. R. Pldg. § 6-1112(b)(1) (lack of subject matter jurisdic-
tion) and § 6-1112(b)(6) (failure to state a claim). With regard
to jurisdiction, the City alleged that MSP’s attempt to appeal
pursuant to § 19-2422 was erroneous because the City did
not impose a special assessment against MSP’s property. The
defendants contended instead that the Board of Equalization
acted in the exercise of its judicial functions. The defendants
asserted that because the Board of Equalization was acting
as a tribunal and exercising judicial functions, MSP’s only
remedy was to file a petition in error pursuant to § 25-1901 et
seq. The defendants contended that because MSP had not filed
a “Petition in Error,” the district court lacked subject matter
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309 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738jurisdiction. In their motion to dismiss, the defendants also
asserted that MSP had failed to state a claim against Kluthe,
that Kluthe was not a proper party to the action, and that MSP
failed to allege the elements required for a writ of mandamus
against Kluthe.
After a hearing, the district court sustained the defendants’
motion to dismiss. In an order filed October 15, 2020, the
court determined that it lacked jurisdiction. The court stated
that MSP was challenging a decision made by the Board of
Equalization “following a hearing during which MSP presented
evidence and made arguments” and that in making the decision,
“the City, through the [Board of Equalization], was exercising
a judicial function.” The court reasoned that because the Board
of Equalization was acting in a judicial capacity, the petition
in error statutes, § 25-1901 et seq., applied. The court stated
that MSP’s claims were “not properly pursued via a petition in
error” and that, instead, MSP brought its claims “by way of a
Petition to Appeal Assessment of the . . . Board of Equalization
which is not a proper action and does not confer jurisdiction
in this Court.” The court found that § 19-2422 did not apply,
“because there was no special assessment imposed.” The court
cited case law defining “special assessment” and determined
that MSP had made no factual allegations to show that the
resolution it sought to appeal was a “special assessment.” The
court concluded that “it [had] no jurisdiction and [was] without
authority to grant any of the relief that MSP request[ed] in its
appeal.” The court therefore dismissed MSP’s petition.
MSP appeals the order that dismissed its petition for lack
of jurisdiction.
ASSIGNMENTS OF ERROR
MSP claims that the district court erred when it determined
that it lacked subject matter jurisdiction. MSP first claims that
the City’s action placing a lien on its property was a “special
assessment” under § 18-1722 and that therefore, an appeal of
special assessments authorized by § 19-2422 was proper. In
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738the alternative, MSP claims that if § 19-2422 was not appli-
cable, MSP followed the requirements necessary to perfect an
appeal by a petition in error.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision. Champion v. Hall
County, ante p. 55, 958 N.W.2d 396 (2021).
ANALYSIS
MSP claims that the resolution of July 21, 2020, it sought
to appeal levied a special assessment under the authority of
§ 18-1722 and that therefore, the district court had subject mat-
ter jurisdiction of its appeal of that special assessment pursuant
to § 19-2422. We agree with MSP and conclude as a matter of
law that the district court erred when it dismissed MSP’s peti-
tion in its entirety.
Section 19-2422 provides as follows:
Any owner of real property who feels aggrieved by the
levy of any special assessment by any city of the first class,
city of the second class, or village may appeal from such
assessment, both as to the validity and amount thereof, to
the district court of the county where such assessed real
property is located. The issues on such appeal shall be
tried de novo. The district court may affirm, modify, or
vacate the special assessment or may remand the case to
the local board of equalization for rehearing.
(Emphasis supplied.) As emphasized above, § 19-2422 refers
broadly to the levy of “any” special assessment.
MSP argues on appeal that the City, through the Board of
Equalization, levied a special assessment in the July 21, 2020,
resolution. MSP notes that under Neb. Rev. Stat. § 16-707(Cum. Supp. 2020), the “mayor and city council of a city of
the first class . . . meet[ing] as a board of equalization” have
the power to “equalize all special assessments” and that “at
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738such meeting the assessments shall be finally levied by them.”
MSP contends that the event of July 21 was such a meeting
and had as its objective the levying of a special assessment
against MSP. In this regard, MSP next cites § 18-1722, which
provides:
If any owner of any building or structure fails, neglects,
or refuses to comply with notice by or on behalf of any
city or village to repair, rehabilitate, or demolish and
remove a building or structure which is an unsafe build-
ing or structure and a public nuisance, the city or village
may proceed with the work specified in the notice to the
property owner. A statement of the cost of such work
shall be transmitted to the governing body. The governing
body may:
(1) Levy the cost as a special assessment against the
lot or real estate upon which the building or structure is
located. Such special assessment shall be a lien on the
real estate and shall be collected in the manner provided
for special assessments; or
(2) Collect the cost from the owner of the building or
structure and enforce the collection by civil action in any
court of competent jurisdiction.
(Emphasis supplied.)
In summary, MSP notes that a board of equalization has
authority under § 16-707 to levy “special assessments” and
asserts that it is clear the action taken by the City and the Board
of Equalization in the July 21, 2020, resolution was the action
defined in § 18-1722(1) for the purpose of levying a “special
assessment” against the property (which special assessment
serves as a lien on the property) and that appeals from “any
special assessment” are authorized under § 19-2422.
We agree that the apparent authority for the action taken
by the Board of Equalization in the July 21, 2020, resolution
was § 18-1722. Based on allegations in MSP’s petition and
statements in the resolution itself, it is clear that (1) MSP had
failed, neglected, or refused to comply with the City’s notice
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738requiring MSP to demolish and remove a structure the City had
deemed to be an unsafe structure and a public nuisance and
(2) therefore the City proceeded with the work specified in the
notice. Under § 18-1722, the City thereafter had the authority
to collect the cost of such work and had two options for how to
proceed. Although the City had the option under § 18-1722(2)
to collect the cost “by civil action in any court of competent
jurisdiction,” it is clear the City chose instead to collect the
cost by the option set forth under § 18-1722(1), which involves
“[l]evy[ing] the cost as a special assessment against the . . .
real estate upon which the . . . structure is located.” Section
18-1722(1) further provides that the “special assessment” is
“a lien on the real estate” to be “collected in the manner pro-
vided for special assessments.” In the resolution, the City and
the Board of Equalization noted that MSP had filed “written
objections to the assessment,” and the City and the Board of
Equalization rejected the objections and resolved that the costs
were to be a lien on MSP’s property with payments to be col-
lected by the county treasurer.
In their response, the defendants do not explicitly deny that
the July 21, 2020, resolution was made under the authority
of § 18-1722 and do not identify any other authority pursu-
ant to which the resolution was made. Instead, the defendants
argue that there is “no legal authority that the special assess-
ment referenced in § 18-1722 is the same as that referenced
in § 19-2422.” Brief for appellees at 16. The defendants argue
that § 19-2422 “does not by its plain language or otherwise
indicate that it applies” to a special assessment imposed under
§ 18-1722, brief for appellees at 16, and they note that the
two statutes are in different statutory sections. The defendants
instead agree with the district court’s reasoning that “special
assessment” under § 19-2422 has the definition set forth in
case law such as Bennett v. Board of Equal. of City of Lincoln,
245 Neb. 838, 841, 515 N.W.2d 776, 779 (1994), which
provides that “[s]pecial assessments are charges imposed by
law on land to defray the expense of a local municipal
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738improvement on the theory that the property has received spe-
cial benefits from the improvements in excess of the benefits
accruing to property or people in general.” The defendants
argue that the district court correctly determined that MSP
did not show that the resolution in the case levied a “special
assessment” under this definition.
[2] We reject this argument. Contrary to the defendants’
assertion that the language of § 19-2422 does not indicate
that it includes a special assessment under § 18-1722, we note
that § 19-2422 broadly applies to “any special assessment.”
Because it used such broad language, § 19-2422 did not need
to explicitly refer to or specifically incorporate § 18-1722
within its ambit; instead, if the statute had as its objective the
exclusion of specific assessments, it would have been obliged
to explicitly exclude any such “special assessment.” We fur-
ther note that while § 19-2422 and § 18-1722 are in different
chapters of the revised statutes, both chapters apply to cities
and villages, the difference being that § 18-1722 is in a chap-
ter applicable to all cities and villages, while § 19-2422 is in
a chapter and article applicable to cities of the first or second
class and villages. The City qualifies under both chapters. The
defendants do not cite, and we do not find, a provision setting
forth a special definition for “special assessment” for either
statutory section. We therefore read “any special assessment”
under § 19-2422 to include and to apply to a “special assess-
ment” levied under the authority of § 18-1722(1).
We conclude therefore that § 19-2422, which authorizes
an appeal from a special assessment, was the proper author-
ity for MSP to appeal the July 21, 2020, resolution, and as a
consequence, the district court had subject matter jurisdiction
over MSP’s appeal. We express no opinion as to whether a
petition in error would be appropriate but do observe that
where there is an explicit statute authorizing an appeal, the
explicit statute is generally the preferred appellate path. See,
e.g., Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d
442 (1991). Because we conclude that the district court had
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 309 Neb. 738subject matter jurisdiction under § 19-2422, we need not con-
sider MSP’s alternative argument that it also complied with
requirements to file a petition in error under § 25-1901 et seq.
We also note that at oral argument, the defendants acknowl-
edged that if § 19-2422 was the proper authority for an appeal
to the district court, then MSP had complied with the relevant
procedural requirements, including timely filing a notice of
appeal and posting a bond with the city clerk as required by
§ 19-2423.
Because we conclude that the district court has subject mat-
ter jurisdiction, we reverse the dismissal of the petition in its
entirety for lack of jurisdiction, and we remand the cause for
further proceedings. We note that because the district court
erroneously dismissed the petition for lack of subject matter
jurisdiction, it did not address other assertions set forth in the
defendants’ motion to dismiss. Therefore, the district court
should consider those assertions on remand.
CONCLUSION
We conclude that the City’s July 21, 2020, resolution lev-
ied a special assessment against MSP under the authority of
§ 18-1722 and that therefore, § 19-2422 authorized MSP’s
appeal of the resolution. The district court therefore erred when
it dismissed the petition for lack of subject matter jurisdiction.
We reverse the dismissal of MSP’s petition in its entirety, and
we remand the cause for further proceedings.
Reversed and remanded for
further proceedings.