Douglas A. Stunkel & 4-S, LLC v. Cnty. of Dawson

DOUGLAS A. STUNKEL AND 4-S, LLC, A NEBRASKA LIMITED LIABILITY COMPANY, APPELLANTS, v. COUNTY OF DAWSON, NEBRASKA, ET AL., APPELLEES.

No. A-19-1143.

NEBRASKA COURT OF APPEALS

December 8, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Dawson County, JAMES E. DOYLE IV, Judge, on appeal thereto from the County Court for Dawson County, JEFFREY M. WIGHTMAN, Judge. Judgment of District Court affirmed.

Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellants.

Katherine Kellogg Kühn, Deputy Dawson County Attorney, for appellee County of Dawson.

Shawn R. Eatherton, Buffalo County Attorney, and Andrew W. Hoffmeister for appellee County of Buffalo.

Michael J. Henry, Phelps County Attorney, for appellee County of Phelps.

PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.

MOORE, Judge.

INTRODUCTION

Douglas A. Stunkel and 4-S, LLC (collectively the Appellants) filed an action against the counties of Dawson, Phelps, and Buffalo, alleging claims of inverse condemnation and constitutional taking and seeking declaratory and injunctive relief. The Dawson County Court dismissed the Appellants' second amended complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. The Appellants appealed from the county court to the district court for Dawson County, which sustained the counties' objections to discovery requests by the Appellants and affirmed the decision of the county court. The Appellants have appealed to this court from that decision. For the reasons set forth herein, we affirm the decision of the district court, which affirmed the county court's order of dismissal.

BACKGROUND

On April 27, 2016, the Appellants filed an action for statutory inverse condemnation pursuant to Neb. Rev. Stat. § 76-705 (Reissue 2018) in the county court, claiming that a regulatory taking occurred as a result of the defendants' failure to properly regulate land use. In addition to the counties, the complaint included as defendants John and Jane Doe 1 through 10, sued in their official and in their individual capacities, as agents and/or employees of the respective counties. These defendants were alleged to include, at least, the county commissioners, county surveyors, county engineers, county assessors, and county treasurers. We have referred to the various defendants collectively as "the Appellees."

The complaint was amended twice following motions to dismiss by the counties. The second amended complaint (the operative complaint) alleged that the Appellants owned real property in Dawson and Buffalo Counties, which included Platte River accretion ground. The Appellants alleged that the northern boundary of Phelps County, and the southern boundaries of Dawson and Buffalo Counties, have all historically been defined by the waters of the Platte River. The Appellants alleged that the counties failed to make boundary reviews and surveys in order to enforce the integrity of their boundaries, and failed to maintain proper records and accurately assess taxes on the properties situated adjacent to the boundaries of the respective counties, including the Appellants' property, as required by Neb. Rev. Stat. § 77-1306.01 (Reissue 2018). (The operative complaint also listed numerous other statutes not at issue in this appeal.) The Appellants alleged that the counties adopted, de facto, regulatory schemes with regard to the preservation, maintenance, and protection of each of their boundaries, allowing their boundaries to be essentially unregulated for the supposed public benefit by avoiding the monetary expense of conducting surveys.

The Appellants alleged that the actions and inactions of the Appellees severely restricted the use, ownership, extent, and value of their property. Specifically, the Appellants alleged that they have lost the equivalent of 347 acres of unimproved lands along the southern boundaries of their property, and that their lender required them to sell the property as the loan collateral (the real property) had become insufficient. The Appellants alleged that these actions amounted to a taking under § 76-705 and Neb. Const. art. I, § 21. The Appellants sought a declaration pursuant to the Nebraska Declaratory Judgment Act that the Appellees' actions are ultra vires, void and in excess or derogation of their authority; temporary and final injunctive relief; an order requiring the Appellees to properly determine and maintain proper county boundaries and tax rolls; damages for the loss of value and harm to the Appellants' real property and business operations; and other relief including reasonable attorney fees.

Each of the defendant counties filed motions to dismiss the second amended complaint under Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6).

On January 12, 2018, the county court entered its final order dismissing the second amended complaint with prejudice. The court first addressed the lack of subject matter jurisdiction under § 6-1112(b)(1). The court referred to its August 11, 2017, order (which dismissed the amended complaint with leave to amend) and reiterated its holdings therein. In the August 2017 order, the court held that it lacked subject matter jurisdiction over matters relating to the assessment, valuation, and levying of taxes, and/or refunding taxes. The court held that "[t]hese matters and other matters related to taxes, found within Chapter 77 of the Nebraska Revised Statutes, are reserved for the county board of equalization, the Property Tax Administrator, and the Nebraska Tax Equalization Commission (TERC)." The county court further held that neither the county court nor the district court had subject matter jurisdiction over the allegations made under § 77-1306.01 regarding the counties' obligation to conduct surveys and maintain tax rolls, and neither court could enforce those obligations.

The county court, in the final order, further found that the second amended complaint again failed to state a claim for relief for inverse condemnation as the allegations were conclusory and did not allege that the Appellants' property was "taken or damaged for public use." The court concluded that any further attempts to amend the complaint would be futile and determined that the Appellants would not be allowed to further amend their complaint. The Appellants filed a motion to alter or amend the order, which was overruled on April 23.

On April 24, 2018, the Appellants filed a notice of appeal from the orders of the county court. On June 13, the Appellants filed a "Petition On Appeal" in the district court. After setting forth the procedural history of the inverse condemnation action, the petition alleged that the county court should have proceeded according to the condemnation statutes by appointing a board of appraisers to fix damages, as opposed to making determinations about whether a taking had occurred for public use or purpose. The petition then set forth virtually identical statutory claims, allegations, and claims for relief as contained in the operative complaint which had been dismissed.

Thereafter, the Appellants propounded discovery requests to the Appellees, who each moved for a protective order. At the hearing on the motions, the Appellants asserted that the appeal was governed by the condemnation statutes, specifically Neb. Rev. Stat. § 76-715 (Reissue 2018), such that they were entitled to a trial "de novo in the district court." In its order entered on May 30, 2019, the district court disagreed, finding that the case was decided in the county court on the Appellees' motions to dismiss for failure to state a claim for relief, not on the merits of the condemnation claim. The district court found that, as an appellate court, it was to review the case for error appearing on the record of the county court, pursuant to Neb. Rev. Stat. § 25-2733 (Reissue 2016). Finding that discovery is not a part of such a proceeding, the court granted the motions for protective orders and quashed the discovery propounded by the Appellants. The district court went on to find that the Appellants did not file a statement of errors within 10 days of the filing of the bill of exceptions in the district court as required by Neb. Ct. R. § 6-1452(A)(7) (rev. 2011). Therefore, it determined that its review of the appeal would be limited to "plain error not assigned" with such review conducted pursuant to § 25-2733.

On October 31, 2019, the district court entered a judgment affirming the county court's order of dismissal. The district court also dismissed the petition on appeal. In the judgment, thecourt noted that it had considered all errors the Appellants claimed were committed by the county court and found none of those claims to have merit.

ASSIGNMENTS OF ERROR

The Appellants' brief includes 11 assigned errors; however, they separately argue only four of those errors. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020). The errors specifically assigned and specifically argued by the Appellants, as restated, are: (1) the county court erred in declining certification of the action to the district court, (2) the county court erred in failing to observe the statutory requirements for condemnation actions, (3) the district court erred in determining the appeal was to proceed pursuant to Neb. Rev. Stat. §§ 25-2728 to 25-2739 (Reissue 2016, Cum. Supp. 2018) instead of through § 76-715, and (4) the district court erred in finding that the Appellants were not entitled to conduct discovery on appeal to the district court.

STANDARD OF REVIEW

The district court and higher appellate courts generally review appeals from the county court for...