City of Ord v. Koch
| Decision Date | 11 February 2020 |
| Docket Number | No. A-19-188.,A-19-188. |
| Parties | CITY OF ORD, NEBRASKA, APPELLEE, v. MARK A. KOCH, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Valley County: KARIN L. NOAKES, Judge. Affirmed.
Mark A. Koch, pro se.
Heather L. Sikyta, of Sikyta Law Office, L.L.C., for appellee.
The City of Ord, Nebraska (the City), brought this foreclosure action against Mark A. Koch, owner of a business and a downtown store, after he failed to pay amounts owed on a special assessment levied for downtown street improvements. After a trial, the Valley County District Court entered a judgment in favor of the City and ordered Koch to pay the amount of the assessment, the accrued interest, the City's attorney fees, and the costs within 20 days to avoid sale of the property. Koch, pro se before the district court and on appeal, raises numerous alleged errors. We affirm.
In 2006, the City proposed a project to revitalize its downtown area. According to a clerk and treasurer for the City, the downtown project included replacing streets, sidewalks, curbs and gutters, lighting, and water lines as needed in front of businesses. Funding for the project came, in part, from a special assessment. Pursuant to a resolution passed and approved on September 2, 2008, assessments were imposed against property owners within four previously created street improvement districts in the downtown area. The special assessments were payable either in full within 50 days from the date of levy without interest or in 15 equal installments, subject to interest of 6½ percent per annum. The first installment was due 50 days after September 2. The remaining 14 installments were due on December 11 of each year; if an installment became delinquent, it would be subject to the rate specified by law for delinquent special assessments.
Koch owned a business that had a storefront located downtown, at 1433 M Street, which he had purchased in 2003; it was located within one of the street improvement districts. Special assessments within that district were calculated at $80 per foot of front sidewalk footage for each property. "Street Improvement Assessment No. 19" was recorded on Koch's title for his business property, reflecting a special assessment of $1,800 ($80 per 22.5 feet of front sidewalk footage); he paid $120 in 2008. From 2009 until trial, Koch never made further payment upon the special assessment.
On January 18, 2018, the City filed a foreclosure action against Koch concerning the special assessment on Koch's business property. The City named to the action other defendants believed to potentially have a right, title, or interest in Koch's business property as well. As relevant to this appeal, the City alleged "Street Improvement Assessment No. 19" was a valid lien upon Koch's business property and had not been satisfied in full or in part or extinguished. The City believed it was entitled to foreclose upon Koch's business property for satisfaction of the lien. The City requested the district court determine that the City had a valid lien on Koch's business property in the sum of $1,800 plus fees and accrued interest, and asked for costs of the action to be taxed to Koch.
On March 5, 2018, Koch, pro se, filed a one-sentence answer, denying any allegations of indebtedness to the City. Koch also separately filed a "COUNTER COMPLAINT," alleging that he properly replaced the sidewalk in front of his downtown store in "2003-2005" and that it had an estimated life of "20-50" years. He asserted that the City resolution passed on September 2, 2008, was against case law regarding negligence claims. Koch requested an order that the City pay damages for the loss of value of work already replaced, loss of access, and loss of business due to the City's construction of the sidewalk, street, and curb abutting Koch's property. He filed identical pleadings (an answer and "COUNTER COMPLAINT") on March 7, 2018. The City denied the allegations in Koch's counterclaim and asserted that Koch failed to state a cause of action for which relief could be granted; the City moved to strike and dismiss the counterclaim. Thereafter, Koch filed miscellaneous motions, which were denied. In May, Koch filed a motion for summary judgment. During a hearing on the motion in June, Koch's argument had to do with whether a new sidewalk had been necessary in front of his business as part of the downtown improvement project and whether the City had the right to impose the assessment in the first place. Koch's motion was overruled. In August, Koch's subsequent appeal from that order was dismissed by this court for lack of jurisdiction; Koch's petition for further review was denied.
Trial took place on January 15, 2019. The county treasurer certified that as of July 17, 2018, the total amount due for the street assessment on Koch's property was $3,146.24; the countytreasurer's records were received into evidence. The county treasurer testified that the special assessment was delinquent.
On January 24, 2019, the district court entered a decree of foreclosure, entering a judgment in favor of the City subject to the superior real estate tax lien of Valley County, Nebraska, that was not foreclosed upon and remained on Koch's property. The district court found that the City had a valid prior and paramount second lien upon Koch's property for "Street Improvement Assessment No. 19" in the amount of $3,241.95 plus interest of $.64 per diem after January 15, 2019; the unpaid balance was to bear interest from the date of the order as provided by law at 14 percent. The court recognized that another party had a valid lien on the property for its mortgage against the property which was subordinate to the City's lien. The court found that the "amount of taxes, special assessments, and other liens, interest and costs chargeable to the real property" was $3,121.09 (after credit of $120.86). The City was awarded attorney fees in an amount equal to 10 percent of that amount, $312.10 to be "taxe[d] as costs." The district court found additional costs of the action for filing fees, service, and publication costs totaled $211.75. Koch was to pay all costs if the property was redeemed. If not, all costs of the action would be taxed to the real estate and paid from sale proceeds. Foreclosure proceedings were ordered to commence if Koch did not pay the amounts noted in the order, including interest and costs of the action, within 20 days of entry of the judgment.
Koch, pro se, timely appeals from the decree of foreclosure.
Koch assigns 32 errors, but even generously construed, only argues 12 of them. Of the 12 argued, we consolidate and restate them as follows: the district court erred by (1) finding the City had the authority to repair or replace sidewalks and impose a special assessment on adjacent landowners (assigned errors 24 through 28); (2) allowing witnesses to lie and not sustaining Koch's objections to such evidence (assigned errors 1, 17, and 18); (3) not allowing Koch to voir dire witnesses to determine their area of professional expertise (assigned error 16); and (4) allowing the City to offer exhibits not provided to Koch in advance of trial (assigned errors 5, 29, and 30).
The rest of Koch's assigned errors are not argued in the "Argument" section of his brief, a section which we note is presented as one continuous argument with no separate headings for any particular assigned error being discussed. This is not in compliance with appellate court rules. See Neb. Ct. R. App. P. § 2-109(B) (rev. 2014) (formatting rules for appellate briefs). In order 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. See U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460 (2019). See, also, § 2-109(D)(1)(e) (); § 2-109(D)(1)(i) (); Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015) (). Further, Koch assigns errors in his reply brief; however, errors not assigned in an appellant's initial brief are waived and may not beasserted for the first time in a reply brief. See U.S. Pipeline v. Northern Natural Gas Co., supra. The purpose of an appellant's reply brief is to respond to the arguments the appellee has advanced against the errors assigned in the appellant's initial brief. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
When a party fails to follow the rules of the Nebraska Supreme Court, an appellate court may proceed as though the party had failed to file a brief or, alternatively, may examine the proceedings for plain error. See Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014). The decision to proceed on plain error is at the discretion of the appellate court. Id. We decline to address any assigned errors which were not argued and supported in the "Argument" section of Koch's brief.
A collateral attack upon a special assessment is a proceeding in equity, which an appellate court reviews de novo on the record. See Grube v. City of Ogallala, 223 Neb. 640, 392 N.W.2d 380 (1986). To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Neun v. Ew...
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