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In this decision regarding an arbitration case, the Nebraska Court of Appeals concludes that Nebraska’s Uniform Arbitration Act commits such jurisdiction exclusively to a district court. Because the county court here lacked jurisdiction, the appellate courts also lack jurisdiction and the case is reversed and vacated with directions to dismiss.
MBNA America Bank v. Hansen, 16 Neb. App. 536 (2008)
Court of Appeals Headnotes
Jurisdiction:
1. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.
2. Appeal and Error. When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of the claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court. ••• Even though an appellate court may lack jurisdiction to hear the merits of the case, the appellate court does have authority to vacate a lower court’s order, and, if appropriate, remand the case for further proceedings, when such order was entered by a court lacking jurisdiction and was thus void.
3. Words and Phrases. Subject matter jurisdiction is a court’s power to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action before the court and the particular question which it assumes to determine.
Judgments:
1. Jurisdiction: Appeal and Error. A jurisdictional question which 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.
Rules of the Supreme Court:
1. Appeal and Error. A party may move for rehearing in an appellate court based upon any claimed mistakes or inaccuracies in statements of fact or law in the opinion, and any questions involved which the court is claimed to have failed to consider on the appeal.
Actions:
1. Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.
Constitutional Law:
1. Jurisdiction: Legislature. The jurisdiction of the district courts conferred by the terms of the Nebraska Constitution, as thus conferred, is beyond the power of the Legislature to limit or control; while the Legislature may grant to the district courts such other jurisdiction as it may deem proper, it cannot limit or take away from such courts their broad and general jurisdiction which the constitution has conferred upon them.
2. States. The Supremacy Clause of the U.S. Constitution dictates that state law, including constitutional law, is superseded to the extent it conflicts with federal law.
Courts:
1. Jurisdiction. A county court has concurrent original jurisdiction with the district court in all civil actions of any type when the amount in controversy is $51,000 or less.
a. Arbitration and Award: Jurisdiction over confirmation of arbitration awards is conferred upon the district court by Neb. Rev. Stat. § 25-2618 (Cum. Supp. 2006), and the county court has no such jurisdiction.
i. Words and Phrases. Pursuant to Neb. Rev. Stat. § 25-2618(a) (Cum. Supp. 2006), the term “court” shall mean any district court of this state. The making of an agreement described in Neb. Rev. Stat. § 25-2602.01 (Cum. Supp. 2006) providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under the Uniform Arbitration Act and to enter judgment on an award thereunder.
Statutes:
1. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute. ••• To the extent that a conflict exists between two statutes on the same subject, the specific statute controls over the general statute.
2. Appeal and Error. Appellate courts give statutory language its plain and ordinary meaning and will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. ••• Lnguage of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.
Date Filed and Case No.: March 4, 2008. No. A-06-748.
Court Appealed From: District Court for Douglas County, Gregory M. Schatz, Judge, on appeal thereto from the County Court for Douglas County, Stephen M. Swartz, Judge.
Attorneys for the Appeal: Paul John Hansen, appellant, pro se. Margaret A. McDevitt and Karl von Oldenburg for MBNA America Bank , N.A., appellee.
Judges: Irwin, Carlson, and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: MBNA America Bank, N.A. (MBNA), filed a complaint in the county court for Douglas County for judgment upon an arbitration award made pursuant to a contract between MBNA and Paul John Hansen. After protracted proceedings in the county court, the court entered a summary judgment for MBNA. Hansen appealed to the district court, where he filed a statement of errors asserting 18 errors. The district court affirmed the judgment of the county court and remanded to the county court for execution of the judgment. Hansen appealed to the Nebraska Court of Appeals, and shortly thereafter, filed a motion to dismiss for lack of subject matter jurisdiction. Hansen again asserted many of the 18 errors he claimed in district court. Based on his arguments about notice in the county court, it appeared that Hansen was attempting to challenge personal jurisdiction or due process, and the Cour overruled the motion for summary dismissal. Thereafter, they summarily affirmed the district court’s decision. Hansen filed a motion for rehearing motioning the Court to dismiss this case for lack of subject matter jurisdiction and to dismiss the action with prejudice based on the fact that state law requires the arbitration to be confirmed only in a district court and not a county court as with this case. In the last paragraph of the conclusion, Hansen asserted that the county court lacked jurisdiction because the Uniform Arbitration Act specified that the district court shall have jurisdiction. The Court sustained the motion for rehearing in part and granted rehearing limited to the issue of subject matter jurisdiction.
Is there subject matter jurisdiction? The Court started by setting forth the general principles relating to the respective jurisdiction of the district and county courts in the Nebraska Constitution and the jurisdiction thus conferred is beyond the power of the Legislature to limit or control. The Uniform Arbitration Act is found at Neb. Rev. Stat. § 25-2601 et seq. (Reissue 1995 & Cum. Supp. 2006) and these statutes refer to “the court.” Section 25-2618(a) states, “The term court shall mean any district court of this state. The making of an agreement described in section 25-2602.01 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under the Uniform Arbitration Act and to enter judgment on an award thereunder.” As § 25-2618 expressly gives “any district court” jurisdiction over arbitration matters, the Court said that applying the legal principle of expressio unius est exclusio alterius—that the expression of one thing is the exclusion of the others—the express grant of jurisdiction to the district courts excludes jurisdiction to courts unmentioned by the statute. Accordingly, the Legislature’s specific grant of jurisdiction in matters of arbitration to the district court is controlling. They concluded that jurisdiction over confirmation of arbitration awards is conferred upon the district court by § 25-2618 and that the county court has no such jurisdiction.
Does anything in the federal Arbitration Act, 9 U.S.C. § 1 et seq. (2000 & Supp. V 2005) preempts state law on the subject? The Court said that it saw nothing in the federal Arbitration Act which confers jurisdiction on Nebraska county courts or otherwise preempts state law. The arbitration agreement in this case stated in relevant part, “Judgment upon any arbitration award may be entered in any court having jurisdiction.” Under Nebraska’s statute, the only court having such jurisdiction is the district court.
Conclusion: Because the county court lacked the authority to exercise its subject matter jurisdiction to confirm the arbitration award, the district court and the Court of Appeals also lacked the power to determine the merits of the issue presented to the county court. They withdrew their previous judgment of summary affirmance. They therefore vacated the decision of the district court, and remande the cause with directions that the district court is to remand the cause to the county court with instructions to dismiss the complaint for lack of subject matter jurisdiction. JUDGMENT VACATE D, AND CAUSE REMANDED WITH DIRECTIONS.
This appeal is from a summary judgment granted in a negligence action. Here the plaintiff brought suit against a firm which it had hired to complete the paperwork and applications needed to receive environmental permits when that work was not performed. The Nebraska Court of Appeals finds that summary judgment for the negligence was proper, but there was a dispute as to the material facts as to the damages.
D B Feedyards v. Environmental Sciences, 16 Neb. App. 516 (2008)
Court of Appeals Headnotes
Judgments:
1. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law, which requires an appellate court to reach a conclusion independent from that of the trial court.
Summary Judgment.
1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is 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. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the 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. 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. ••• Once the moving party makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
Judgments:
1. Moot Question: Appeal and Error. When a party voluntarily complies with the mandate of the trial court, satisfying the judgment, the appeal no longer presents an actual controversy, but an abstract question.
2. Appeal and Error. Payment of a judgment does not destroy the right to appeal when the record shows that the payment was coerced by legal process during the pendency of the appeal.
3. Affidavits: Appeal and Error. The burden falls to the appellant to demonstrate, by affidavit, that appellant’s satisfaction of the judgment was not voluntary, but was instead the result of coercion by legal process.
Negligence:
1. Whether a legal duty in negligence exists is a question of law. ••• In negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk. ••• Once a court determines that a duty is owed by one party to another, it becomes necessary to define the scope and extent of the duty. In other words, the necessary complement of duty—the standard of care—must be ascertained. ••• Determining the standard of care to be applied in a particular case is a question of law.
2. Damages:
a. Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.
b. Proof. The burden of tying the negligence to the damage claimed remains on the claimant even when the other party is guilty of negligence as a matter of law.
3. Appeal and Error. In determining whether a duty exists, an appellate court employs a risk-utility test, considering (1) the magnitude of the risk, (2) the relationship of the parties, (3) the nature of the attendant risk, (4) the opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6) the policy interest in the proposed solution.
4. Evidence: Tort-feasors. The ultimate determination of whether a party deviated from the standard of care and was therefore negligent is a question of fact. To resolve the issue, a finder of fact must determine what conduct the standard of care would require under the particular circumstances presented by the evidence and whether the conduct of the alleged tort-feasor conformed with the standard.
Proximate Cause:
1. A proximate cause need not be the sole cause; it need only be “a” proximate cause.
2. Words and Phrases. A proximate cause is a cause that (1) produces a result in a natural and continuous sequence and (2) without which the result would not have occurred. ••• A defendant’s conduct is a proximate cause of an event if the event would not have occurred but for that conduct, but it is not a proximate cause if the event would have occurred without that conduct.
3. Evidence. The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court’s determination will not be set aside unless clearly wrong.
Appeal and Error.
1. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.
Date Filed and Case No.: March 4, 2008. No. A-06-471.
Court Appealed From: District Court for Burt County: Darvid D. Quist, Judge.
Attorneys for the Appeal: William H. Selde for Environmental Sciences , Inc., a Nebraska Corporation, and Kendall Bonenberger, appellants. Jaron J. Bromm and Curtis A. Bromm and, on brief, Donald G. Blankenau and Thomas R. Wilmoth for D B Feedyards, Inc., a Nebraska Corporation, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Moore, Judge.
Summary: D B Feedyards operates a 4000 head cattle feedlot. D B Feedyards received a letter from Nebraska’s Department of Environmental Quality (DEQ) in May 2002, notifying it that a livestock waste control facility was required for its cattle operations and requiring that a facility permit application to be filed by December 1, 2002. On July 16, D B Feedyards retained Environmental Sciences, Inc. (ESI) to perform various environmental consulting services and to prepare and submit to the DEQ, on behalf of D B Feedyards, the application for a permit. ESI missed multiple deadlines established by the DEQ for submission of the facility permit application and, in fact, never submitted a complete facility application to the DEQ. On December 27, 2004, the U.S. Environmental Protection Agency (EPA) issued to D B Feedyards a compliance order and notice of violations of the federal Clean Water Act which eventually resulted in a penalty settlement of $135,000. Further, D B Feedyards incurred $15,799.50 in fees defending the EPA action. Following the EPA action, D B Feedyards terminated its relationship with ESI and hired another consultant to prepare and file the facility application. After paying $24,681.53 to ESI, D B Feedyards had to pay the new consultant $51,300 to perform the work ESI failed to do. D B Feedyards also paid a $1,500 application fee for the incomplete application submitted by ESI. D B Feedyards, Inc., filed a complaint setting forth claims for breach of contract, negligence, and breach of warranties in the district court for Burt County against ESI, and Kendall Bonenberger, the president of ESI. The district court entered summary judgment in favor of D B Feedyards on its negligence claim. ESI and Bonenberger (hereinafter collectively the Appellants) appealed to the Nebraska Court of Appeals.
Did appellants voluntarily pay judgment thus leaving the appeal moot? The rule in Nebraska is that payment of a judgment does not destroy the right to appeal when the record shows that the payment was coerced by legal process during the pendency of the appeal. The burden falls to the appellant to demonstrate, by affidavit, that appellant’s satisfaction of the judgment was not voluntary, but was instead the result of coercion by legal process. Here, Appellants argued that the trial court’s order disbursing the funds intended to be the supersedeas bond/cash deposit was satisfaction by coercion of legal process. While the Court said this argument is not necessarily persuasive, the Appellants have made a strong showing that satisfaction of the judgment was not voluntary through affidavits of Counsel for the Appellants. Finding some guidance in La Borde v. Farmers State Bank, 116 Neb. 33, 215 N.W. 559 (1927) the Court noted that neither the Appellants nor their counsel tendered the check to the court; rather, their insurance company erroneously submitted a check rather than a bond. “This is not a situation where a party paid the judgment and then, having a change in mind, sought to appeal from the judgment” they wrote. There is no doubt that the parties and the trial court were well aware that the Appellants intended to file a supersedeas bond and the actions of the Appellants’ counsel upon learning of the mistakenly submitted check clearly demonstrated that the Appellants did not intend to abandon the appeal and did not intend the check to be considered compliance with the judgment. Whether a payment is voluntary depends on the facts of the particular case as indicating an intention on the part of the payer to waive his or her legal rights. Thus, neither the mere statement of an intent not to waive the right of appeal, nor the failure to expressly reserve the right to appeal, necessarily determines whether a judgment was paid voluntarily. Turning to the question of voluntary satisfaction the Court concluded that the payment made in this case was not “voluntary” and thus does not moot the Appellants’ appeal. Accordingly, they proceeded to consider the merits of this appeal.
Did the district court err in granting summary judgment? The district court observed that D B Feedyards hired ESI to perform environmental consulting services, a skill ESI held itself out to possess. The court determined that the undisputed material facts demonstrated that ESI owed a duty to perform its services to D B Feedyards as a reasonable environmental consultant with specialized knowledge, skill, training, and experience would perform them under similar circumstances. The Court found no error in this conclusion by the district court. However the Court determined that there are disputed questions of material fact relating to the issue of causation which precluded summary judgment on the issue of damages. In finding that ESI’s negligence proximately caused D B Feedyards’ injury, the district court primarily relied on the fact that after ESI failed to complete the permit application, the EPA initiated an enforcement action against D B Feedyards. The court found that the resulting fine was for discharges that would have been authorized had ESI filed the permit application in a timely manner and an affidavit statement was that the EPA would not have initiated an enforcement action if a timely permit application had been filed. The court determined that the undisputed evidence offered by D B Feedyards, even viewed in a light most favorable to the Appellants, supported no other conclusion. The Court of Appeals’ review of the evidence leads it to conclude that the Appellants produced sufficient evidence to show the existence of a material issue of fact concerning the issue of causation. On this record, they found that there is a question of fact as to whether the Appellants’ failure to submit the permit was a proximate cause of all of the damages resulting from the EPA enforcement action. “We conclude that the evidence submitted by the Appellants, when viewed in the light most favorable to the Appellants and giving them the benefit of all reasonable inferences deducible from the evidence, was sufficient to raise a genuine issue of material fact as to the causation of the damages suffered by D B Feedyards as a result of ESI’s negligence.” Accordingly, they ruled that summary judgment on the issue of causation of damages was not proper.
Conclusion: The Nebraska Court of Appeals found that the Appellants did not voluntarily satisfy judgment so as to moot this appeal. They further found that the district court was correct in granting summary judgment on the issue of negligence but erred in granting summary judgment on the issue of causation. AFFIRMED IN PART , AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEE DINGS.
This appeal is from a summary judgment granted in a negligence action. Here the plaintiff brought suit against a firm which it had hired to complete the paperwork and applications needed to receive environmental permits when that work was not performed. The Nebraska Court of Appeals finds that summary judgment for the negligence was proper, but there was a dispute as to the material facts as to the damages.
D B Feedyards v. Environmental Sciences, 16 Neb. App. 516 (2008)
Court of Appeals Headnotes
Judgments:
1. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law, which requires an appellate court to reach a conclusion independent from that of the trial court.
Summary Judgment.
1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is 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. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the 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. 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. ••• Once the moving party makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
Judgments:
1. Moot Question: Appeal and Error. When a party voluntarily complies with the mandate of the trial court, satisfying the judgment, the appeal no longer presents an actual controversy, but an abstract question.
2. Appeal and Error. Payment of a judgment does not destroy the right to appeal when the record shows that the payment was coerced by legal process during the pendency of the appeal.
3. Affidavits: Appeal and Error. The burden falls to the appellant to demonstrate, by affidavit, that appellant’s satisfaction of the judgment was not voluntary, but was instead the result of coercion by legal process.
Negligence:
1. Whether a legal duty in negligence exists is a question of law. ••• In negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk. ••• Once a court determines that a duty is owed by one party to another, it becomes necessary to define the scope and extent of the duty. In other words, the necessary complement of duty—the standard of care—must be ascertained. ••• Determining the standard of care to be applied in a particular case is a question of law.
2. Damages:
a. Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.
b. Proof. The burden of tying the negligence to the damage claimed remains on the claimant even when the other party is guilty of negligence as a matter of law.
3. Appeal and Error. In determining whether a duty exists, an appellate court employs a risk-utility test, considering (1) the magnitude of the risk, (2) the relationship of the parties, (3) the nature of the attendant risk, (4) the opportunity and ability to exercise care, (5) the foreseeability of the harm, and (6) the policy interest in the proposed solution.
4. Evidence: Tort-feasors. The ultimate determination of whether a party deviated from the standard of care and was therefore negligent is a question of fact. To resolve the issue, a finder of fact must determine what conduct the standard of care would require under the particular circumstances presented by the evidence and whether the conduct of the alleged tort-feasor conformed with the standard.
Proximate Cause:
1. A proximate cause need not be the sole cause; it need only be “a” proximate cause.
2. Words and Phrases. A proximate cause is a cause that (1) produces a result in a natural and continuous sequence and (2) without which the result would not have occurred. ••• A defendant’s conduct is a proximate cause of an event if the event would not have occurred but for that conduct, but it is not a proximate cause if the event would have occurred without that conduct.
3. Evidence. The question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and the court’s determination will not be set aside unless clearly wrong.
Appeal and Error.
1. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.
Date Filed and Case No.: March 4, 2008. No. A-06-471.
Court Appealed From: District Court for Burt County: Darvid D. Quist, Judge.
Attorneys for the Appeal: William H. Selde for Environmental Sciences , Inc., a Nebraska Corporation, and Kendall Bonenberger, appellants. Jaron J. Bromm and Curtis A. Bromm and, on brief, Donald G. Blankenau and Thomas R. Wilmoth for D B Feedyards, Inc., a Nebraska Corporation, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Moore, Judge.
Summary: D B Feedyards operates a 4000 head cattle feedlot. D B Feedyards received a letter from Nebraska’s Department of Environmental Quality (DEQ) in May 2002, notifying it that a livestock waste control facility was required for its cattle operations and requiring that a facility permit application to be filed by December 1, 2002. On July 16, D B Feedyards retained Environmental Sciences, Inc. (ESI) to perform various environmental consulting services and to prepare and submit to the DEQ, on behalf of D B Feedyards, the application for a permit. ESI missed multiple deadlines established by the DEQ for submission of the facility permit application and, in fact, never submitted a complete facility application to the DEQ. On December 27, 2004, the U.S. Environmental Protection Agency (EPA) issued to D B Feedyards a compliance order and notice of violations of the federal Clean Water Act which eventually resulted in a penalty settlement of $135,000. Further, D B Feedyards incurred $15,799.50 in fees defending the EPA action. Following the EPA action, D B Feedyards terminated its relationship with ESI and hired another consultant to prepare and file the facility application. After paying $24,681.53 to ESI, D B Feedyards had to pay the new consultant $51,300 to perform the work ESI failed to do. D B Feedyards also paid a $1,500 application fee for the incomplete application submitted by ESI. D B Feedyards, Inc., filed a complaint setting forth claims for breach of contract, negligence, and breach of warranties in the district court for Burt County against ESI, and Kendall Bonenberger, the president of ESI. The district court entered summary judgment in favor of D B Feedyards on its negligence claim. ESI and Bonenberger (hereinafter collectively the Appellants) appealed to the Nebraska Court of Appeals.
Did appellants voluntarily pay judgment thus leaving the appeal moot? The rule in Nebraska is that payment of a judgment does not destroy the right to appeal when the record shows that the payment was coerced by legal process during the pendency of the appeal. The burden falls to the appellant to demonstrate, by affidavit, that appellant’s satisfaction of the judgment was not voluntary, but was instead the result of coercion by legal process. Here, Appellants argued that the trial court’s order disbursing the funds intended to be the supersedeas bond/cash deposit was satisfaction by coercion of legal process. While the Court said this argument is not necessarily persuasive, the Appellants have made a strong showing that satisfaction of the judgment was not voluntary through affidavits of Counsel for the Appellants. Finding some guidance in La Borde v. Farmers State Bank, 116 Neb. 33, 215 N.W. 559 (1927) the Court noted that neither the Appellants nor their counsel tendered the check to the court; rather, their insurance company erroneously submitted a check rather than a bond. “This is not a situation where a party paid the judgment and then, having a change in mind, sought to appeal from the judgment” they wrote. There is no doubt that the parties and the trial court were well aware that the Appellants intended to file a supersedeas bond and the actions of the Appellants’ counsel upon learning of the mistakenly submitted check clearly demonstrated that the Appellants did not intend to abandon the appeal and did not intend the check to be considered compliance with the judgment. Whether a payment is voluntary depends on the facts of the particular case as indicating an intention on the part of the payer to waive his or her legal rights. Thus, neither the mere statement of an intent not to waive the right of appeal, nor the failure to expressly reserve the right to appeal, necessarily determines whether a judgment was paid voluntarily. Turning to the question of voluntary satisfaction the Court concluded that the payment made in this case was not “voluntary” and thus does not moot the Appellants’ appeal. Accordingly, they proceeded to consider the merits of this appeal.
Did the district court err in granting summary judgment? The district court observed that D B Feedyards hired ESI to perform environmental consulting services, a skill ESI held itself out to possess. The court determined that the undisputed material facts demonstrated that ESI owed a duty to perform its services to D B Feedyards as a reasonable environmental consultant with specialized knowledge, skill, training, and experience would perform them under similar circumstances. The Court found no error in this conclusion by the district court. However the Court determined that there are disputed questions of material fact relating to the issue of causation which precluded summary judgment on the issue of damages. In finding that ESI’s negligence proximately caused D B Feedyards’ injury, the district court primarily relied on the fact that after ESI failed to complete the permit application, the EPA initiated an enforcement action against D B Feedyards. The court found that the resulting fine was for discharges that would have been authorized had ESI filed the permit application in a timely manner and an affidavit statement was that the EPA would not have initiated an enforcement action if a timely permit application had been filed. The court determined that the undisputed evidence offered by D B Feedyards, even viewed in a light most favorable to the Appellants, supported no other conclusion. The Court of Appeals’ review of the evidence leads it to conclude that the Appellants produced sufficient evidence to show the existence of a material issue of fact concerning the issue of causation. On this record, they found that there is a question of fact as to whether the Appellants’ failure to submit the permit was a proximate cause of all of the damages resulting from the EPA enforcement action. “We conclude that the evidence submitted by the Appellants, when viewed in the light most favorable to the Appellants and giving them the benefit of all reasonable inferences deducible from the evidence, was sufficient to raise a genuine issue of material fact as to the causation of the damages suffered by D B Feedyards as a result of ESI’s negligence.” Accordingly, they ruled that summary judgment on the issue of causation of damages was not proper.
Conclusion: The Nebraska Court of Appeals found that the Appellants did not voluntarily satisfy judgment so as to moot this appeal. They further found that the district court was correct in granting summary judgment on the issue of negligence but erred in granting summary judgment on the issue of causation. AFFIRMED IN PART , AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEE DINGS.
Here a County assessor, County treasurer and the County appealed from the declaratory judgment and writ of mandamus entered against them in favor of a Community Redevelopment Authority and a City by a district court. The Nebraska Court of Appeals affirms the writ.
Community Redev. Auth. v. Gizinski, 16 Neb. App. 504 (2008)
Court of Appeals Headnotes
Appeal and Error.
1. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. ••• Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error. ••• An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.
2. Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Jurisdiction:
1. Appeal and Error. 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. ••• When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.
Taxation:
1. Valuation. A property owner’s exclusive remedy for relief from overvaluation of property for tax purposes is by protest to the county board of equalization.
Mandamus:
1. Words and Phrases. Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.
Date Filed and Case No.: March 4, 2008. No. A-06-075.
Court Appealed From: District Court for Adams County: Stephen Illingworth, Judge.
Attorneys for the Appeal: Charles A. Hamilton for Patricia Gizinski, Adams County Assessor, et al., appellants and cross-appellees. Robert M. Sullivan for Community Redevelopment Authority of the City of Hastings, Nebraska, a Municipal Corporation , and City of Hastings, Nebraska, a Municipal Corporation, appellees and cross-appellants.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Moore, Judge.
Summary: the Adams County assessor, the Adams County treasurer and Adams County, Nebraska (collectively the County), appealed from the declaratory judgment and writ of mandamus entered against them in favor of the Community Redevelopment Authority of the City of Hastings, Nebraska, and the City of Hastings (collectively the Authority) by the district court for Adams County. The district court entered a declaratory judgment, finding that the redevelopment project valuation for certain property should have been set at $32,500, and issued a writ of mandamus directing the county assessor to transmit that value as of January 1, 2000, to the Authority and the county treasurer in accordance with Nebraska’s Community Development Law, Neb. Rev. Stat. § 18-2101 et seq. (Reissue 1997 & Cum. Supp. 2004). The County appealed, and the Authority cross-appealed. As the County did not separately assign error as required by Neb. Ct. R. of Prac. 9D(l)(e) (rev. 2006), in the interest of fairness, the Nebraska Court of Appeals reviewed the record for plain error.
Did the district court have jurisdiction in this case? The County argued that the matter of the redevelopment property valuation should have been brought first before the Adams County Board of Equalization and then appealed to the Tax Equalization and Review Commission (TERC). The Court said this case is similar to State ex rel. Scoular Prop. v. Bemis, 242 Neb. 659, 496 N.W.2d 488 (1993) and even though the case was decided before the creation of the TERC, the Court saw nothing in the statutes relating to the TERC or in the Community Development Law itself to indicate that a mandamus action is no longer an appropriate remedy for an authority that believes that a county assessor has not complied with his or her duty under Neb. Rev. Stat. § 18-2148 to transmit a redevelopment project valuation. There is no provision in the Community Development Law requiring a hearing before a board of equalization and then an appeal to the TERC when a county assessor has allegedly failed in this duty. They found no error in the district court’s conclusion that a mandamus action was an appropriate remedy in this case.
Was there plain error by the district court? Although the County did not specifically assign errors in its appeal the Court reviewed the record for plain error. They found no plain error in the district court’s determination that a writ of mandamus was appropriate or in the court’s declaration of the value to be transmitted. “Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.” State ex rel. Upper Republican NRD v. District Judges, 273 Neb. 148, 728 N.W.2d 275 (2007). The district court did not commit plain error in finding that the assessor failed to comply with the legal duty to transmit a value for the property as of January 1, 2000, the project valuation date and in the issuance of a writ of mandamus, directing the county assessor to comply with her statutory duty and to transmit a value of $32,500 in accordance with Nebraska’s Community Development Law. The Court said the property at issue in this case is very unique, and based upon the facts of this case and their review for plain error, the Court found no error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. The Court also reviewed for plain error the district court’s consideration of valuation evidence beyond the two valuations noted in its summary judgment order of either $614,440 or $900,475, and found no error in the receipt of such valuation evidence.
Did the district court err when it failed to amend its final order to show that the county assessor was required to transmit a value of $5,735 upon receipt of exhibit 16, (an affidavit) during the hearing on the motion for new trial? On cross-appeal, the Authority asserted that question. The Court said there is nothing in the record to show that the Authority actually sought such a decision from the district court. The motion for new trial was filed by the County. Because the issue of whether the assessor should have transmitted a redevelopment project valuation of $5,735 was not presented to the district court for decision, the Court said it is not appropriate to resolve that issue on appeal. As such, the Authority’s cross-appeal is without merit.
Conclusion: The Court found no plain error in the district court’s declaratory judgment and writ of mandamus entered in favor of the Authority. They made no determination with regard to the Authority’s cross-appeal, because the issue raised was not presented to the district court for determination. AFFIRMED.
Here a County assessor, County treasurer and the County appealed from the declaratory judgment and writ of mandamus entered against them in favor of a Community Redevelopment Authority and a City by a district court. The Nebraska Court of Appeals affirms the writ.
Community Redev. Auth. v. Gizinski, 16 Neb. App. 504 (2008)
Court of Appeals Headnotes
Appeal and Error.
1. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. ••• Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error. ••• An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.
2. Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Jurisdiction:
1. Appeal and Error. 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. ••• When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.
Taxation:
1. Valuation. A property owner’s exclusive remedy for relief from overvaluation of property for tax purposes is by protest to the county board of equalization.
Mandamus:
1. Words and Phrases. Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.
Date Filed and Case No.: March 4, 2008. No. A-06-075.
Court Appealed From: District Court for Adams County: Stephen Illingworth, Judge.
Attorneys for the Appeal: Charles A. Hamilton for Patricia Gizinski, Adams County Assessor, et al., appellants and cross-appellees. Robert M. Sullivan for Community Redevelopment Authority of the City of Hastings, Nebraska, a Municipal Corporation , and City of Hastings, Nebraska, a Municipal Corporation, appellees and cross-appellants.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Moore, Judge.
Summary: the Adams County assessor, the Adams County treasurer and Adams County, Nebraska (collectively the County), appealed from the declaratory judgment and writ of mandamus entered against them in favor of the Community Redevelopment Authority of the City of Hastings, Nebraska, and the City of Hastings (collectively the Authority) by the district court for Adams County. The district court entered a declaratory judgment, finding that the redevelopment project valuation for certain property should have been set at $32,500, and issued a writ of mandamus directing the county assessor to transmit that value as of January 1, 2000, to the Authority and the county treasurer in accordance with Nebraska’s Community Development Law, Neb. Rev. Stat. § 18-2101 et seq. (Reissue 1997 & Cum. Supp. 2004). The County appealed, and the Authority cross-appealed. As the County did not separately assign error as required by Neb. Ct. R. of Prac. 9D(l)(e) (rev. 2006), in the interest of fairness, the Nebraska Court of Appeals reviewed the record for plain error.
Did the district court have jurisdiction in this case? The County argued that the matter of the redevelopment property valuation should have been brought first before the Adams County Board of Equalization and then appealed to the Tax Equalization and Review Commission (TERC). The Court said this case is similar to State ex rel. Scoular Prop. v. Bemis, 242 Neb. 659, 496 N.W.2d 488 (1993) and even though the case was decided before the creation of the TERC, the Court saw nothing in the statutes relating to the TERC or in the Community Development Law itself to indicate that a mandamus action is no longer an appropriate remedy for an authority that believes that a county assessor has not complied with his or her duty under Neb. Rev. Stat. § 18-2148 to transmit a redevelopment project valuation. There is no provision in the Community Development Law requiring a hearing before a board of equalization and then an appeal to the TERC when a county assessor has allegedly failed in this duty. They found no error in the district court’s conclusion that a mandamus action was an appropriate remedy in this case.
Was there plain error by the district court? Although the County did not specifically assign errors in its appeal the Court reviewed the record for plain error. They found no plain error in the district court’s determination that a writ of mandamus was appropriate or in the court’s declaration of the value to be transmitted. “Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.” State ex rel. Upper Republican NRD v. District Judges, 273 Neb. 148, 728 N.W.2d 275 (2007). The district court did not commit plain error in finding that the assessor failed to comply with the legal duty to transmit a value for the property as of January 1, 2000, the project valuation date and in the issuance of a writ of mandamus, directing the county assessor to comply with her statutory duty and to transmit a value of $32,500 in accordance with Nebraska’s Community Development Law. The Court said the property at issue in this case is very unique, and based upon the facts of this case and their review for plain error, the Court found no error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. The Court also reviewed for plain error the district court’s consideration of valuation evidence beyond the two valuations noted in its summary judgment order of either $614,440 or $900,475, and found no error in the receipt of such valuation evidence.
Did the district court err when it failed to amend its final order to show that the county assessor was required to transmit a value of $5,735 upon receipt of exhibit 16, (an affidavit) during the hearing on the motion for new trial? On cross-appeal, the Authority asserted that question. The Court said there is nothing in the record to show that the Authority actually sought such a decision from the district court. The motion for new trial was filed by the County. Because the issue of whether the assessor should have transmitted a redevelopment project valuation of $5,735 was not presented to the district court for decision, the Court said it is not appropriate to resolve that issue on appeal. As such, the Authority’s cross-appeal is without merit.
Conclusion: The Court found no plain error in the district court’s declaratory judgment and writ of mandamus entered in favor of the Authority. They made no determination with regard to the Authority’s cross-appeal, because the issue raised was not presented to the district court for determination. AFFIRMED.
