County of Seward v. Andelt

• Decision Date: 07 February 1997
• Docket Number: No. S-94-1162,S-94-1162
• Parties: COUNTY OF SEWARD, Nebraska, Appellant, v. John F. ANDELT and Deloris M. Andelt, husband and wife, et al., Appellees.
• Court: Nebraska Supreme Court

Page 465

559 N.W.2d 465

251 Neb. 713

COUNTY OF SEWARD, Nebraska, Appellant, v. John F. ANDELT and Deloris M. Andelt, husband and wife, et al., Appellees.

No. S-94-1162.

Supreme Court of Nebraska.

Feb. 7, 1997.

Syllabus by the Court

1. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only a question of law is presented.

2. Trial: Pleadings: Pretrial Procedure. In making a motion for judgment on the pleadings, the moving party admits the truth of the well-pleaded facts in the opposing party's pleadings, together with all inferences to be drawn thereon.

3. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.

4. Statutes: Legislature: Intent: Appeal and Error. An appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

5. Statutes. A court is to give a statute a reasonable construction which best achieves the purpose of the statute, rather than a construction that would defeat it.

6. Counties: Foreclosure: Real Estate: Tax Sale: Liens. Pursuant to Neb.Rev.Stat. § 77-1918 (Cum.Supp.1994), a county must choose to foreclose real estate tax liens under either the lien method set 7. Actions: Foreclosure: Real Estate: Tax Sale: Time. A foreclosure action brought under the certificate method set forth at Neb.Rev.Stat. § 77-1902 (rev.1990) must be brought within 6 months after the expiration of 3 years from the date of sale of any real estate for taxes.

forth at Neb.Rev.Stat. § 77-1901 (Reissue 1990) or the certificate method set forth at Neb.Rev.Stat. § 77-1902 (Reissue 1990).

C. Jo Petersen, Seward County Attorney, for appellant.

Brian C. Bennett, of Bennett Law Office, P.C., Milford, guardian ad litem.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Justice.

The County of Seward, Nebraska (County), appeals the district court's granting judgment on the pleadings, dismissing as time barred two tax foreclosure causes of action. The district court determined that the petition for foreclosure was brought under the certificate method pursuant to Neb.Rev.Stat. § 77-1902 (Reissue 1990). A foreclosure action brought under this section must be commenced within 6 months after the expiration of 3 years from the date of sale of any real estate for taxes. The County asserts its foreclosure action is not barred because it was brought under the lien method pursuant to Neb.Rev.Stat. § 77-1901 (Reissue 1990). We conclude that this foreclosure action was brought pursuant to § 77-1902 and is time barred. We therefore affirm the decision of the district court.

BACKGROUND

On August 10, 1993, the Seward County Attorney filed a petition for foreclosure in Seward County District Court. This petition, consisting of 13 causes of action, requested the court to find that delinquent taxes and assessments on each parcel of real estate constituted a lien and that the County could satisfy those liens by selling the property at a public sale. Certificates of tax sale along with certificates of title for each parcel were attached to the petition, setting forth the taxes due on each.

The district court entered a decree of foreclosure for causes of action Nos. 10 and 11 on May 23, 1994. On that same date, the court set the remaining causes of action for trial. Upon a motion by the County, the foreclosure decree for causes of action Nos. 10 and 11 was vacated on June 20, 1994, because there was no appointment of counsel for defendants that may be in the military service, minors, or incompetents. A guardian ad litem was therefore appointed for these persons on June 21 for all causes of action. This appeal involves only causes of action Nos. 10 and 13.

The guardian ad litem filed an answer on August 31, 1994, alleging that causes of action Nos. 10 and 13 were barred by § 77-1902 because they were not brought within 6 months after the expiration of the tax sale certificates. A motion for judgment on the pleadings was filed by the guardian ad litem for these causes of action.

A hearing was had on the guardian ad litem's motion to dismiss on September 12, 1994. At this hearing, the County asserted that its petition for foreclosure was brought pursuant to the "lien method" of foreclosure set forth at § 77-1901 and that the statute of limitations for the "certificate method" of foreclosure as set out in § 77-1902 was therefore inapplicable. In support of this contention, the County offered exhibit 2, which contains resolution No. 1397 of the Seward County Board of County Commissioners. According to this resolution, the county attorney was directed to proceed with this foreclosure action "by the lien method." The guardian ad litem argued that the County, by issuing tax sale certificates for the properties, had elected to proceed under the certificate method of foreclosure and that since the limitation period for foreclosing under this method had expired on all certificates, the County could not now proceed under the lien method of foreclosure.

The court sustained the guardian ad litem's motion for judgment on the pleadings and dismissed causes of action Nos. 10 [251 Neb. 716] and 13, concluding that those actions were time Since the filing of this appeal, the County has dismissed all causes of action except Nos. 10 and 13. For this reason, the County appeals the district court's ruling only as it pertains to these causes of action.

barred by § 77-1902 because they were not brought within 6 months after the expiration of the tax sale certificates. The court did, however, enter a decree of foreclosure on cause of action No. 6.

The record reflects that tax sale certificates were issued for the property contained in causes of action Nos. 10 and 13. In particular, a tax sale certificate for the property in cause of action No. 10 was issued by the Seward County treasurer on April 15, 1989, and expired on April 15, 1992. The tax sale certificate for the property contained in cause of action No. 13 was issued on April 2, 1988, with an expiration date of April 2, 1991. The County's petition for foreclosure was filed August 10, 1993.

ASSIGNMENTS OF ERROR

Summarized and restated, the County asserts the district court erred in (1) finding that causes of action Nos. 10 and 13 were time barred and (2) not entering a decree of foreclosure on all causes of action, thereby bringing about an inequitable and unjust result.

STANDARD OF REVIEW

A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only a question of law is presented. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988). In making such a motion, the moving party admits the truth of the well-pleaded facts in the opposing party's pleadings, together with all inferences to be drawn thereon. Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993).

Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996); County Cork v. Nebraska Liquor Control Comm., 250 Neb. 456, 550 N.W.2d 913 (1996).

ANALYSIS

The issue in this appeal is whether the County's petition to foreclose for real estate taxes was brought pursuant to the lien method set forth at § 77-1901 or pursuant to the certificate method set forth at § 77-1902 which demands that a foreclosure cause of action be commenced within 6 months after the expiration of the issued tax sale certificates.

The lien method of foreclosure is set forth at § 77-1901, which provides:

Counties shall have a lien upon real estate within their boundaries for all taxes due thereon.... After any parcel of real estate has been offered for sale and not sold for want of bidders, the county board shall make and enter an order directing the county attorney to foreclose the lien for all taxes then delinquent, in the same manner and with like effect as in the foreclosure of real estate mortgages, except as otherwise specifically provided by sections 77-1903 to 77-1917.

The other method of foreclosure, known as the certificate method, is set forth at § 77-1902, which provides:

When land has been sold for delinquent taxes and a tax sale certificate or tax deed has been issued, the holder of such tax sale certificate or tax deed may, instead of demanding a deed or, if a deed has been issued, by surrendering the same in court, proceed in the district court ... to foreclose the lien for taxes represented by the tax sale certificate or tax deed and all subsequent tax liens thereon in the same manner and with like effect as in the foreclosure of a real estate mortgage, except as otherwise specifically provided by sections 77-1903 to 77-1917. Such action shall only be brought within six months after the expiration of three years from the date of sale of any real estate for taxes or special assessments.

(Emphasis supplied.)

The Legislature envisioned a county's selection of one of the foregoing methods in shall, as to all real property upon which taxes are delinquent for three or more years, either enter an order directing the foreclosure of the lien of such taxes as provided in section 77-1901 or enter an order for the county treasurer to issue tax sale certificates to the county covering the delinquent taxes upon such real property, to be foreclosed upon in the manner and at the time provided in sections 77-1901 to 77-1918.

foreclosing on a tax lien. According to Neb.Rev.Stat. § 77-1918 (Cum.Supp.1994), a county board shall examine, on a yearly basis, a list of all real property on...