Bargmann v. State, Dept. of Roads

• Decision Date: 01 October 1999
• Docket Number: No. S-98-282 to S-98-289.
• Citation: 600 N.W.2d 797,257 Neb. 766
• Court: Nebraska Supreme Court
• Parties: Irene R. BARGMANN and David R. Bargmann et al., appellants, v. The STATE of Nebraska, DEPARTMENT OF ROADS, and the City of Columbus, Nebraska, a municipal corporation, appellees.

600 N.W.2d 797

257 Neb. 766

Irene R. BARGMANN and David R. Bargmann et al., appellants, v. The STATE of Nebraska, DEPARTMENT OF ROADS, and the City of Columbus, Nebraska, a municipal corporation, appellees.

Nos. S-98-282 to S-98-289.

Supreme Court of Nebraska.

October 1, 1999.

Warren R. Whitted, Jr., and Jennifer K. Woodward, of Lieben, Whitted, Houghton, Slowiaczek & Dougherty, P.C., Omaha, for appellants.

Don Stenberg, Attorney General, and Jeffery T. Schroeder, for appellee State of Nebraska.

Stan A. Emerson and Matthew D. Dake, of Sipple, Hansen, Emerson & Schumacher, Columbus, for appellee City of Columbus.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

The appellants, Irene R. Bargmann and David R. Bargmann and seven other landowners, brought the instant consolidated actions against the County of Platte, Nebraska (County), and against the appellees, the Nebraska Department of Roads (State) and the City of Columbus, Nebraska (City). In their operative petition, the appellants allege that the appellees allowed the construction of obstructions within a flood plain which caused their land to become flooded and damaged. As a result, the appellants claim that their properties have been taken for public use without just compensation in violation of article I, § 21, of the Nebraska Constitution and the Fifth Amendment of the U.S. Constitution. The district court granted the City's motion for summary judgment and the State's motion for partial summary judgment. We affirm the portion of the order granting the City's motion for summary judgment and dismiss the appeal against the State due to the lack of a final, appealable order.

I. BACKGROUND

The appellants are a group of landowners in Platte County, Nebraska. The properties at issue are not within the City's corporate limits but are within the zoning jurisdiction of the City. In addition, the properties are located within the 100-year flood plain of the Loup and Platte Rivers. In March 1993, ice jams occurred on the Loup River near Columbus, Nebraska, forcing the river out of its banks. The floodwaters accumulated on the appellants' properties, causing damage. Following the flooding, the appellants filed a petition claiming that the appellees and the County allowed the construction of certain obstructions within the flood plain which caused the flooding of their properties to be much worse than it would have been had the obstructions not been built.

The alleged obstructions are the reconstruction of U.S. Highway 81 (highway) and the construction of a subdivision known as Whitetail Lake (subdivision). Both the highway and the subdivision are within 2 miles of the City and are within its zoning jurisdiction. The appellants allege that both the highway and the subdivision were constructed at an elevation in excess of the 100-year flood level and acted as a dam or levee which caused the floodwaters to accumulate on their properties.

The subdivision was built in the early 1980's. At that time, the City had in effect a flood plain ordinance requiring a permit from the City in order to engage in construction in the flood plain. The developers did not seek a permit under the ordinance. Instead, the developers obtained a permit from the State of Nebraska, Department of Water Resources (department). The record indicates that the department had authority to permit construction in the flood plain at the time the subdivision was constructed. However, an engineer who had been involved in flood plain studies of the area testified that the City could have stopped construction of the subdivision by refusing to grant a permit under its ordinance.

Following the issuance of the permit by the department, the City approved a special use permit issued to the developer to extract dirt, gravel, and sand to create an internal lake within the subdivision. The first preliminary plat for the subdivision was approved by the city planning commission and the city council in the early 1980's. The city council, at various times, approved and accepted subdivision plats for each addition to the subdivision. There is no evidence that the State had any involvement in the construction of the subdivision. The State did not issue a permit regulating or authorizing construction of the subdivision, and the only record of permits issued by the State concerned permits for temporary access to a State right-of-way during the initial construction.

In February 1984, the City entered into a written agreement with the State regarding the highway construction. This agreement provided that "the construction or reconstruction of the aforesaid highway... shall be accomplished according to and in the manner provided by plans and specifications to be prepared by the State." The agreement provided that the City would share in financing that part of the project located within city limits. The City did not participate in the actual construction and did not select or supervise the construction contractor. Rather, the State selected and supervised the contractor.

The appellants allege that the actions of the County, the City, and the State constituted a taking of their properties for public use without just compensation under both the Nebraska and the U.S. Constitutions. In September 1997, the action against the County was dismissed with prejudice, and no appeal was taken. Thus, the County is not an appellee in this case. The City brought a motion for summary judgment, and the State brought a motion for partial summary judgment. The district court granted the State's motion for partial summary judgment to the extent that the State was not liable for any damage caused by the construction of the subdivision. On the same date, the district court granted the City's motion for summary judgment on the basis that any action of the City in "allowing" the construction of the subdivision could not constitute a taking as a matter of law. In addition, the district court determined that the City was not responsible for the design or construction of the highway project. The appellants filed this appeal, and the State filed a motion to dismiss based on a lack of jurisdiction.

II. ASSIGNMENTS OF ERROR

The appellants assign that the district court erred in sustaining the City's motion for summary judgment and in granting the State's motion for partial summary judgment.

III. STANDARD OF REVIEW

The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its own conclusions independent from the trial court. Eli's, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999).

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record 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. NECO, Inc. v. Larry Price & Assocs., 257 Neb. 323, 597 N.W.2d 602 (1999); Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999).

In reviewing a summary judgment, an appellate court views the evidence in a 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. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999); Woodard v. City of Lincoln, 256 Neb. 61, 588 N.W.2d 831 (1999).

IV. ANALYSIS

1. JURISDICTION

The State contends we do not have jurisdiction because the appeal of the partial summary judgment is not a final, appealable order.

For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Charles Vrana & Son Constr. v. State, 255 Neb. 845, 587 N.W.2d 543 (1998). An order is final if it affects a substantial right and (1) determines the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an action after judgment is rendered. Charles Vrana & Son Constr. v. State, supra; O'Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998).

An order which effects a dismissal with respect to one of multiple defendants in a negligence action is a final, appealable order as to the party dismissed. Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696 (1997); Green v. Village of Terrytown, 188 Neb. 840, 199 N.W.2d 610 (1972). In the instant case, the granting of the City's motion for summary judgment dismissed the appellants' case against it. Thus, the order granting the City's motion for summary judgment is a final, appealable order even though there are issues left to be determined in the case that affect other parties. However, this leaves the question as to whether the partial summary judgment order granted to the State is a final, appealable order.

It is well settled that a partial summary judgment proceeding is not a special proceeding under part two of the above test. Charles Vrana & Son Constr. v. State, supra. For example, in Charles Vrana & Son Constr., Vrana contracted with the Nebraska Department of Roads to perform a construction project and subsequently brought an action alleging that he was owed money from the State under the contract. The State counterclaimed, alleging that Vrana owed it money pursuant to both a liquidated damage provision and a disincentive provision in the contract. The district court granted Vrana's motion for partial summary judgment regarding the amount the State alleged Vrana owed under the disincentive provision, and the State appealed. We noted that the partial summary judgment proceeding was not made on summary application after judgment was rendered and that it did not determine the action and...