BUTLER COUNTY SCHOOL DIST. v. Meysenburg

• Decision Date: 16 July 2004
• Docket Number: No. S-03-171.,S-03-171.
• Citation: 683 N.W.2d 367,268 Neb. 347
• Parties: BUTLER COUNTY SCHOOL DISTRICT NO. 502, also known as East Butler Public Schools, a political subdivision of the State of Nebraska, appellant, v. Christine MEYSENBURG, in her capacity as Butler County clerk, and Butler County, a political subdivision of the State of Nebraska, appellees.
• Court: Nebraska Supreme Court

683 N.W.2d 367

268 Neb. 347

BUTLER COUNTY SCHOOL DISTRICT NO. 502, also known as East Butler Public Schools, a political subdivision of the State of Nebraska, appellant, v. Christine MEYSENBURG, in her capacity as Butler County clerk, and Butler County, a political subdivision of the State of Nebraska, appellees.

No. S-03-171.

Supreme Court of Nebraska.

July 16, 2004.

Steve Williams, of Recknor, Williams & Wertz, for appellant.

Randall L. Goyette and Andrew K. Smith, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellees.

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

MILLER-LERMAN, J.

NATURE OF CASE

Appellant, Butler County School District No. 502, also known as East Butler Public Schools (the school district), brought this action pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §13-901 et seq. (Reissue 1997 & Supp.1999). The amended petition is the operative petition for purposes of this appeal. In the amended petition, the school district alleged that Christine Meysenburg, the Butler County clerk, failed to properly record and transcribe in the "2000 Abstract of Levies" a levy set by the school district's board of education. Butler County was also named as a defendant. As a result of Meysenburg's alleged "negligent or wrongful act, error, omission, or breach of duty," the school district claimed it received $150,000 less from the special building fund levy than had been approved. Appellees demurred to the amended petition, claiming that the amended petition failed to state a cause of action and that appellees were immune from liability. The district court for Butler County sustained the demurrer and dismissed the action without leave to replead. The school district appeals. We affirm the district court's decision sustaining the demurrer without leave to replead and dismissing the school district's action.

STATEMENT OF FACTS

On August 2, 2002, the school district filed an initial petition against Meysenburg and the Butler County Board of Supervisors, alleging a claim against these defendants under the Political Subdivisions Tort Claims Act. Meysenburg and the board of supervisors demurred to the petition, alleging that there was a defect in the parties as to the board of supervisors and that the petition failed to state a cause of action. The school district conceded that the board of supervisors was not a proper party to the action, and the demurrer as to the board of supervisors was sustained on this ground. The board of supervisors is no longer a party to these proceedings. The district court sustained the demurrer on the additional ground that the petition failed to state a cause of action, and the school district was given leave to replead.

On December 4, 2002, the school district filed its amended petition in which it named Meysenburg and Butler County as defendants. The following facts are alleged in the amended petition: On September 11, 2000, the school district's board of education passed a resolution entitled "2000-2001 Tax Request Resolution for East Butler School District 12-0502," which adopted the 2000-2001 budget information contained in a previous tax request hearing notice. See Neb.Rev.Stat. §77-1601.02 (Cum.Supp.2000). Pursuant to the resolution, the school board set a tax request for a special building fund at $150,000 and created a levy of .0930 per $100 of taxable valuation of property subject to the levy.

According to paragraph 8 of the amended petition, shortly after the resolution was passed, and in accordance with Neb.Rev.Stat. §13-508 (Cum.Supp.2000), the school board filed the "2000-2001 State of Nebraska School District Budget Form for the East Butler Public Schools" with Meysenburg, in her capacity as the Butler County clerk. As alleged by the school district in paragraph 14 of the amended petition, "[p]ursuant to Neb.Rev.Stat. §23-1302 [(Reissue 1997)] and/or other Nebraska Law, [Meysenburg] had a legal duty to accurately record and transcribe the levy amount ... in the 2000 Abstract of Levies." Attached to the amended petition as exhibit D is a seven-page document entitled "2000 Abstract of Levies," which the school district alleged is a true and correct copy of the "2000 Abstract of Levies" maintained by Meysenburg. Exhibit D contains, inter alia, a list of governmental subdivisions and their corresponding levy amounts. The last page of exhibit D contains a certification and the stamp of the Butler County clerk. Meysenburg signed the certification on the last page of exhibit D in her capacity as "Butler County Clerk," and the document bears a handwritten date of October 26, 2000. The following language appears above Meysenburg's signature: "I, Christine Meysenburg, County Clerk in and for Butler County, Nebraska, do hereby certify the above tax levies for Butler County taxing districts as set by the political subdivisions and approved by the County Board of Supervisors on October 13, 2000."

According to paragraph 9 of the amended petition, Meysenburg "failed to properly record or transcribe" in the 2000 abstract of levies the special building fund levy which had been set by the school district's school board, and according to paragraph 19, Meysenburg "publicly admitted ... that she `just made a mistake.'" The school district alleged that as a result of this failure, it had been damaged "in that it will receive $150,000.00 less from the special building fund levy than was approved." For its relief, the school district claimed that as a result of appellees'"failure to certify a proper levy pursuant to Neb.Rev.Stat. §77-1601.02," the school district was entitled to receive $150,000 from appellees.

On December 23, 2002, appellees filed a demurrer to the amended petition. Appellees claimed that the amended petition failed to state a cause of action and that appellees were immune from liability. In support of their demurrer, appellees relied upon §13-910, which provides, in pertinent part, that "[t]he Political Subdivisions Tort Claims Act ... shall not apply to ... (5) Any claim arising with respect to the assessment or collection of any tax or fee...."

A hearing was held on appellees' demurrer. In a journal entry filed February 4, 2003, the district court sustained the demurrer, stating that "the [school district] seeks to impose liability for an act which falls within the ambit of the `assessment and collection' of taxes. Sovereign immunity as to such acts has been preserved and no suit against ... Meysenburg in her official capacity or the county can be sustained...." The district court dismissed the school district's amended petition without leave to replead, concluding, "there is no reasonable possibility that further pleading will cure the defect." The school district appeals.

ASSIGNMENT OF ERROR

On appeal, the school district assigns one error, which, restated, claims that the district court erred in sustaining appellees' demurrer and dismissing the school district's amended petition without leave to replead.

STANDARDS OF REVIEW

In an appellate court's review of a ruling on a demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb. 997, 679 N.W.2d 235 (2004). When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004).

ANALYSIS

At issue in this case is whether the school district's amended petition states a cause of action against appellees. If the amended petition fails to state a cause of action, we consider whether the district court should have granted leave to the school district to replead. In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002). A demurrer reaches an exhibit filed with the petition and made a part thereof, so that a court can consider such exhibit in determining whether the petition states a cause of action. Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502 (2001).

A statement of facts sufficient to constitute a cause of action means a narrative of events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff. Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003). In determining whether a cause of action has been stated, the petition is to be construed liberally, and if, as so construed, the petition states a cause of action, a demurrer based on the failure to state a cause of action must be overruled. Regier v. Good Samaritan Hosp., 264 Neb. 660, 651 N.W.2d 210 (2002).

When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect. Id. Before error can be predicated upon the refusal of a trial court to permit an amendment to a petition after a demurrer is sustained, the record must show that, under the circumstances, the ruling of the court was an abuse of discretion. Drake v. Drake, 260 Neb. 530, 618 N.W.2d 650 (2000).

The district court sustained the demurrer on the basis that appellees were immune under §13-910(5) of the Political Subdivisions Tort Claims Act which exempts "[a]ny claim arising with respect to the assessment or collection of any tax or fee...." In support...