Heimes v. Arens

Michael Heimes and Ceil Heimes, appellants, v. Dennis A. Arens and Mary F. Arens, appellees.

No. A-20-790

Court of Appeals of Nebraska

November 16, 2021

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 Cedar County: Bryan C. Meismer Judge. Affirmed.

Daniel L. Hartnett, of Crary, Huff, Ringgenberg, Hartnett &amp Storm, P.C., for appellants.

Matthew D. Hammes, of Locher, Pavelka, Dostal, Braddy &amp Hammes, L.L.C., for appellees.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Michael Heimes and Ceil Heimes (the Heimeses) appeal from an order of the district court for Cedar County. The court denied the Heimeses' application for order to show cause why Dennis A. Arens and Mary F. Arens (the Arenses) should not be held in contempt of a 2014 court order, and it also granted a motion to dismiss with prejudice filed by the Arenses. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

The parties to this appeal have been involved in litigation for more than a decade with respect to drainage issues affecting their neighboring real properties separated by a particular county road in Cedar County. The early procedural history of this case is set out in greater detail in this court's memorandum opinions following a previous appeal. See Heimes v. Cedar County, No. A-15-646, 2016 WL 1358528 (Neb.App. Apr. 5, 2016) (selected for posting to court website), modified on denial of rehearing 2016 WL 3606210 (Neb.App. June 28, 2016) (selected for posting to court website). We have outlined the relevant procedural history here for purposes of the present appeal.

In 2011, the Heimeses filed an amended complaint in the district court against the Arenses, alleging that the Arenses had constructed an earthen dike on the edge of their property that prevented the natural flow of water from the Heimeses' property onto the Arenses' property and caused flooding and damage to the Heimeses' property. The Heimeses alleged claims of nuisance and trespass, and they requested an injunction and damages. Subsequently, the Heimeses filed a supplemental complaint in a companion case against Cedar County (involving alleged damage from work completed on the county road). The cases were consolidated in the district court and in the previous appeal.

The Arenses, Heimeses, and Cedar County mediated their disputes and entered into a mediation settlement agreement in September 2012. The district court entered an order in May 2013, approving the mediation settlement agreement and ordering the parties to comply with its terms and requirements. According to the mediation settlement agreement, Mark Mainelli, an engineer, was to conduct an assessment of the drainage affecting the involved properties and provide recommendations "to improve the existing drainage to enable the free flow of water across said properties to the extent that is reasonably feasible by the application of accepted engineering and hydrology standards and principles, taking into account the features of said properties, and also upstream and downstream properties." Mainelli was to complete his study to allow construction to begin in the fall of 2012, and the parties agreed to comply with and implement Mainelli's recommendations "within 9 months or as soon thereafter as may reasonably be completed." Prior to completing his assessment and preparing his report and recommendations, Mainelli was to obtain input from each of the parties and to "review and consider the reports of the other parties' experts." The mediation settlement agreement also provided that in the event of a disagreement or conflict regarding implementation of Mainelli's recommendations, the parties would obtain the services of a particular attorney "for purposes of resolving such conflict or dispute through mediation."

Mainelli sent recommendations for improving drainage on the properties to the parties by letter in February 2013, and he sent another letter with supplemental final recommendations in December (collectively "the Mainelli report"). In Mainelli's December letter to the parties, he stated that his recommendations were "conditioned upon the approval by the parties" and were "intended to provide for the most efficient flow of water consistent with the topography and engineering principles." He also stated, "The implementation of these recommendations is to replace the existing agreement between the parties and provide for the final settlement and resolution of the drainage dispute pending between the parties in the [district court]." The particular recommendation at issue in the present appeal is found in the December letter and states, "Additional County easement documentation should be filed with the County describing the cleanout elevation requirements downstream of the roadway culverts. This should be attached to the deed to document the drainage elevations required to be maintained by the downstream owner in perpetuity." The cleanout elevation requirements were set forth in other sections of the Mainelli report.

The Heimeses and the Arenses made certain subsequent objections related to the mediation settlement agreement requirements. Following a hearing, the district court entered an order on August 21, 2014, overruling those objections and determining that the mediation settlement agreement was clear and unambiguous. The court ordered the parties to comply with the terms of the agreement and to construct improvements as recommended by Mainelli in the Mainelli report, which the court attached to the order and incorporated by reference. The court also ordered the parties to file written reports within 60 days setting out their specific plans for compliance with Mainelli's recommendations, stated that it would not "entertain additional arguments regarding contests between expert witnesses" or "reopen the agreement to further battle of the experts," and stated that the order was a final order in both of the consolidated cases as to the enforceability of the mediation settlement agreement. The court specified, "In the event that parties are unable to agree to the implementation of . . . Mainelli's recommendations, the [c]ourt will schedule the matter for a hearing and will make such orders as are appropriate under the then existing circumstances." Subsequently, the Arenses filed a motion to alter or amend, and the court entered an order in February 2015 denying that motion. The parties did not appeal either the August 2014 or the February 2015 order.

In 2015, both the Heimeses and Arenses filed separate notices of dispute in implementing Mainelli's plan and demands for further mediation, which alleged that Mainelli's design did not conform to the settlement mediation agreement. The district court entered an order in June 2015 overruling the notices of dispute, and the Heimeses appealed. This court dismissed the appeal for lack of jurisdiction. In our memorandum opinion, we determined that the 2015 order was not a final, appealable order, but was a continuation of the August 2014 order from which no appeal was taken. See Heimes v. Cedar County, No. A-15-646, 2016 WL 1358528 (Neb.App. Apr. 5, 2016) (selected for posting to court website), modified on denial of rehearing 2016 WL 3606210 (Neb.App. June 28, 2016) (selected for posting to court website).

Thereafter, in January 2017, the Heimeses filed a motion to compel performance, asking the district court to enter an order compelling the Arenses to comply with the August 2014 order and execute certain easements, which the Heimeses claimed were required by Mainelli's recommendations and would allow for completion of the plan. The record in the present appeal does not include a bill of exceptions from any hearing on the 2017 motion to compel, but the court's order ruling on that motion, entered in January 2017, indicated that it heard evidence and argument from the parties, who appeared through counsel. The court denied the motion to compel without further elaboration.

On July 20, 2020, the Heimeses filed the application for order to show cause at issue in the present appeal. The Heimeses alleged that the Arenses were refusing to execute easement documents required by Mainelli's report and that this refusal "clearly violates the terms of the 2014 Order." The Heimeses asked the court to enter an order directing the Arenses to show cause why they should not be held in contempt for violating the August 2014 "by failing to provide the necessary easement to the Heimeses." They asked the court to enter an order requiring the Arenses "to sign appropriate easement documents, prescribe a timeframe for [the] Arenses to execute the documents, and enforce that Order through further contempt proceedings if the Arenses fail to comply with the Order."

The Arenses filed an objection to the Heimeses' show cause application, asserting that the issue raised in the application had been previously considered and ruled upon by the district court in its January 2017 order. They also asserted that there had been "detrimental reliance upon the [c]ourt's [o]rder and the actions of the parties" since entry of the January 2017 order which "prevent the relief requested" by the Heimeses. The Arenses asked the court to deny the show cause application and to enter an order of dismissal with prejudice.

The parties' motions were heard by the district court on August 20, 2020. In support of their motion to dismiss and in opposition to the contempt application, the Arenses offered 10 exhibits identified in an index of evidence filed with the court. At the court's suggestion, the Arenses'...