Dodge Cty. Humane Soc. v. City of Fremont , 314 Neb. 714 ( 2023 )

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www.nebraska.gov/apps-courts-epub/
07/14/2023 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714Dodge County Humane Society, appellee, v.
City of Fremont, Nebraska, and the City
Council of the City of Fremont,
Nebraska, appellants.
___ N.W.2d ___
Filed July 14, 2023. No. S-22-698.
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. ____: ____. Before reaching the legal issues presented for review, it is
the power and duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether the issue is
raised by the parties.
3. ____: ____. If the court from which an appeal was taken lacked jurisdic-
tion, then the appellate court acquires no jurisdiction.
4. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory; unless a statute provides for an appeal from the decision of a
quasi-judicial tribunal, such right does not exist.
5. Municipal Corporations: Appeal and Error. A city council is a tribu-
nal whose decision can be reversed, vacated, or modified through Neb.
Rev. Stat. § 25-1901 (Reissue 2016).
6. Administrative Law: Appeal and Error. A board or tribunal exercises
a judicial function if it decides a dispute of adjudicative fact or if a stat-
ute requires it to act in a judicial manner. But where a board or tribunal
decides no question of adjudicative fact and no statute requires it to act
in a judicial manner, the orders are not “judicial” and are not reviewable
by error proceedings.
7. Evidence: Proof: Words and Phrases. Adjudicative facts are facts
which relate to a specific party and are adduced from formal proof.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 7148. ____: ____: ____. Adjudicative facts pertain to questions of who did
what, where, when, how, why, and with what motive or intent. They are
roughly the kind of facts which would go to a jury in a jury case.
9. Municipal Corporations. While a public body may need to inquire into
facts to perform its duties in good faith, the discretion it exercises is not
necessarily judicial in nature.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Order vacated, and appeal dismissed.
Travis M. Jacott, Patrick J. Sullivan, and Molly J. Miller, of
Adams & Sullivan, P.C., L.L.O., for appellants.
Thomas B. Thomsen, of Sidner Law, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
At a regularly scheduled meeting, the city council of the
City of Fremont (Council) approved a motion that autho-
rized the mayor of Fremont, Nebraska, to send a letter to the
Dodge County Humane Society (Humane Society) regarding
termination of the contract with the Humane Society for ani-
mal control. The Humane Society filed a petition in error in
the district court for Dodge County, naming both the Council
and the City of Fremont (City), alleging that the City had
no cause to terminate the contract and had failed to comply
with contractual prerequisites for termination. The district
court determined that it had jurisdiction and thereafter found
that the Council and the City lacked reasonable sufficient
evidence to terminate the contract and ordered the contract
reinstated. The Council and the City appeal. Because the
Council did not exercise a judicial function when it voted on
this matter, the district court lacked petition in error jurisdic-
tion to review the decision. We vacate the order of the district
court and dismiss this appeal.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714STATEMENT OF FACTS
The Animal Control Contract.
On July 14, 2016, the City entered into a contract with the
Humane Society, a Nebraska nonprofit corporation, for animal
control services. The contract was modified in 2017. The ani-
mal control contract provided that the City would compensate
the Humane Society for providing shelter and staff for carrying
out the enforcement of City ordinances or state laws dealing
with animal care and control within the City.
Contract Termination Process.
On February 23, 2021, at a regularly scheduled meeting, the
Council voted on an agenda item titled “[m]otion to send . . .
Humane Society a notice of termination.” The meeting agenda
included a proposed letter to the Humane Society from the
mayor of the City drafted by an attorney for the City. The let-
ter stated that the City was exercising its right under the animal
control contract to terminate effective 30 days from the date of
the letter notice.
The Council opened the floor to public comment. Several
residents expressed concerns regarding the following: services
during historic flooding in Fremont; dogs at large; enforcement
of the Fremont Municipal Code and applicable state statutes;
and the accuracy of reporting of animals entering and exiting
the Humane Society facility, including euthanasia. The attorney
for the Humane Society also commented. In his remarks, he
referred to an earlier letter that had been sent to him shortly
after the October 2020 Council meeting; the earlier letter
apparently detailed the Humane Society’s noncompliance with
the contract. The attorney for the Humane Society maintained
that this previous letter was not sufficient as notice of contract
termination received by the Humane Society, because, inter
alia, the Council had not approved any correspondence in its
October 2020 meeting.
Following the comments at the February 23, 2021, meet-
ing, a Council member moved to issue the draft notice to the
Humane Society and the motion carried.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714Humane Society’s Petition in Error.
The Humane Society filed a petition in error in the district
court in which it alleged that the Council and the City had
no cause to terminate the contract and that even if there was
cause, the City had not performed the necessary prerequisites
for termination. Following an evidentiary hearing, the dis-
trict court entered a temporary injunction/temporary restraining
order in favor of the Humane Society.
The Council and the City unsuccessfully moved to dismiss
for lack of jurisdiction. The Council and the City maintained
the Council’s decision to authorize the mayor to send the let-
ter was not the type of action that would support a petition
in error. Specifically, the Council and the City asserted that
the action was not a violation by a municipal body following
an exercise of a judicial function as required by Neb. Rev.
Stat. §25-1901 (Reissue 2016). They argued that the Humane
Society was essentially bringing a breach of contract claim
against the City through the petition in error process. The
district court denied the motion to dismiss. Subsequently, the
Humane Society filed a separate breach of contract action
against the City in another proceeding. The Council and the
City unsuccessfully filed another motion to dismiss, in which
they maintained that the contract action and the petition in
error proceeding were simultaneous proceedings and it was
improper for the district court to proceed on the petition
in error.
Following a final hearing, the district court concluded that
it had jurisdiction and explained that “the Supreme Court
has allowed a broad interpretation as to what constitutes the
jurisdictional parameters for a district court when handling a
petition in error case.” The district court cited cases concern-
ing decisions of local tribunals and entities. The district court
also concluded that the Council’s action taken on February 23,
2021, together with that at its meeting of October 13, 2020,
was a “final decision.”
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714Regarding the merits, the district court determined that
the decision made by the Council to authorize termination
of the contract was not supported by “reasonable sufficient
evidence” and therefore sustained the petition in error. The
district court reasoned that the Council did not have the legal
authority to make the decision to terminate the contract for
animal control, because the October 2020 letter was sent
without Council approval. The district court noted other dis-
crepancies between the Council’s actions and the contract.
The district court ordered that the contract be reinstated,
effective immediately.
The Council and the City appeal.
ASSIGNMENTS OF ERROR
The Council and the City assign, summarized and restated,
that the district court erred when it (1) determined it had juris-
diction over the petition in error under § 25-1901, (2) consid-
ered evidence outside the record before the Council, and (3)
found that the City’s decision to terminate the contract was not
supported by sufficient evidence.
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 inde-
pendent of the lower court’s decision. Main St Properties v.
City of Bellevue, 310 Neb. 669, 968 N.W.2d 625 (2022).
ANALYSIS
The Council and the City challenge the district court’s
jurisdictional basis for hearing a petition in error. We agree
that the Council was not exercising a judicial function when
it voted at a meeting to send a letter to the Humane Society
regarding the parties’ contract dispute. Since the vote autho-
rizing the mayor to send the letter was not a judicial or
quasi-judicial act, the district court was not empowered to
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714review the Council vote under the error proceeding statute,
§ 25-1901. As we explain, we vacate the order of the district
court entered without jurisdiction and, accordingly, dismiss
this appeal. Further, because we dispose of this appeal on
jurisdictional grounds, we do not reach the merits of the con-
tractual dispute between the City and the Humane Society.
A Petition in Error Can Be Taken Only From
an Action Made in the Exercise
of Judicial Functions.
[2,3] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties. County of
Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d
612 (2023). If the court from which an appeal was taken
lacked jurisdiction, then the appellate court acquires no juris-
diction. Id.[4,5] The right of appeal in Nebraska is purely statutory;
unless a statute provides for an appeal from the decision of
a quasi-judicial tribunal, such right does not exist. Main St
Properties v. City of Bellevue, supra. In a petition in error
proceeding, § 25-1901 provides that “[a] judgment rendered
or final order made by any tribunal, board, or officer exer-
cising judicial functions and inferior in jurisdiction to the
district court may be reversed, vacated, or modified by the
district court . . . .” (Emphasis supplied.) A city council is a
tribunal whose decision can be reversed, vacated, or modi-
fied through this statutory section. See Main St Properties
v. City of Bellevue, supra. Importantly, error proceedings are
allowed only when an inferior board or tribunal acts judi-
cially. See Hawkins v. City of Omaha, 261 Neb. 943, 627
N.W.2d 118 (2001).
[6] A board or tribunal exercises a judicial function if it
decides a dispute of adjudicative fact or if a statute requires
it to act in a judicial manner. Id. But where a board or
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714tribunal decides no question of adjudicative fact and no
statute requires it to act in a judicial manner, the orders are
not “judicial” and are not reviewable by error proceedings.
See id.[7,8] Adjudicative facts are facts which relate to a specific
party and are adduced from formal proof. Id. Adjudicative
facts pertain to questions of who did what, where, when, how,
why, and with what motive or intent. Id. They are roughly
the kind of facts which would go to a jury in a jury case.
Id. Whether the board or tribunal is required to conduct a
hearing and receive evidence may be considered in determin-
ing whether the inferior board or tribunal exercised judicial
functions. Main St Properties v. City of Bellevue, supra.
See McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d
573 (2007).
The Council Did Not Exercise Judicial Functions
When It Approved the Letter Regarding
Termination of the Animal
Control Contract.
The nature of the proceeding in question before a tribunal
such as a city council is a key factor in determining whether
a proceeding is quasi-judicial. The Humane Society’s petition
in error and the evidence in the record do not show that the
Council exercised judicial functions when it voted to approve a
motion to send a letter to the Humane Society regarding termi-
nation of the contract.
The meeting agenda for the February 2021 meeting included
a “[m]otion to send . . . Humane Society a notice of termina-
tion” and an accompanying draft of a letter from the mayor for
the City. The draft letter was addressed to the Humane Society,
through its attorney. It stated that due to enumerated contract
violations by the Humane Society, not repeated here, the letter
served as notice to the Humane Society that the contract would
be terminated in 30 days.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714At the February 2021 meeting, the Council opened the
floor to members of the public to have an opportunity to
comment on the agenda item. Public comment was allowed,
but not required. Several residents commented regarding
complaints about the Humane Society. The attorney for the
Humane Society commented that sending the notice letter was
premature under the terms of the contract.
The Council did not receive evidence or testimony into an
official record or render a decision in an adversarial proceeding
consistent with due process. Contrary to the Humane Society’s
assertions, the Council merely approved a motion for the
mayor to send a letter to the Humane Society.
[9] We conclude that the Council did not decide on a dispute
of adjudicative fact, nor did the statutes require it to act in a
judicial manner. See, e.g., Neb. Rev. Stat. § 16-503 (Reissue
2022) (providing that majority of members elected to city
council must concur on city contracts). While a public body
may need to inquire into facts to perform its duties in good
faith, the discretion it exercises is not necessarily judicial in
nature. Camp Clarke Ranch v. Morrill Cty. Bd. of Comrs.,
17 Neb. App. 76, 758 N.W.2d 653 (2008); Sarpy Cty. Bd.
of Comrs. v. Sarpy Cty. Land Reutil., 9 Neb. App. 552, 615
N.W.2d 490 (2000).
The undisputed facts show that the Council was not “exer-
cising judicial functions” under § 25-1901 when it voted to
approve a letter on behalf of the City regarding termination of
the contract with the Humane Society. Accordingly, the district
court did not have jurisdiction to hear the Humane Society’s
petition in error, and, in turn, we are without jurisdiction over
this appeal.
CONCLUSION
The Council did not exercise a judicial or quasi-judicial
function when it voted on a motion to send a letter to
the Humane Society, and the district court did not have
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714jurisdiction to review this action in a petition in error pro-
ceeding. We vacate the order of the district court for lack of
jurisdiction, and as a result, we lack jurisdiction over this
appeal. Accordingly, we dismiss this appeal.
Order vacated, and appeal dismissed.
Cassel, J., concurring.
The court’s opinion, which I join in full, says all that is nec-
essary to decide this appeal. I write separately only to express
my doubt that a city of the first class has the power ascribed to
it by the Humane Society.
Breach of contract is a common-law action. 1 Neb. Const. art.
V, § 9, confers upon the district court “common law jurisdic-
tion.” This court has held that district courts have jurisdiction
over any civil proceeding that could have been brought in the
English equity or common-law courts. 2
Legislative grants of power are strictly construed pursuant
to what has become known as Dillon’s rule, which provides a
municipal corporation possesses and can exercise these powers
only: (1) those granted in express terms; (2) those necessar-
ily or fairly implied in, or incident to, the powers expressly
granted; and (3) those essential to the declared objects and
purposes of the municipality, not merely convenient, but indis-
pensable. 3 Thus, one must find a statute conferring the power
asserted by the Humane Society.
The Humane Society did not rely upon the city claims
statutes and cited no other statutory authority. Neb. Rev. Stat.
§§ 16-726 to 16-729 (Reissue 2022) empower a city of the
first class to consider and to allow or disallow claims and
1
Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122 (2014).
2
Id.3
In re Application of Lincoln Electric System, 265 Neb. 70, 655 N.W.2d
363 (2003), overruled on other grounds, Nixon v. Missouri Municipal
League, 541 U.S. 125, 124 S. Ct. 1555, 158 L. Ed. 2d 291 (2004).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
DODGE CTY. HUMANE SOC. V. CITY OF FREMONT
Cite as 314 Neb. 714accounts payable against the city. But the Humane Society
does not rely on those statutes, which clearly were not invoked
here. The Humane Society cited no statutory authority for city
council adjudication of a breach of contract action. I doubt
that any exists.