Dowd Grain Co. v. Cnty. of Sarpy

• Decision Date: 28 February 2012
• Docket Number: No. A–10–1238.,A–10–1238.
• Citation: 19 Neb.App. 550,810 N.W.2d 182
• Parties: DOWD GRAIN CO., INC., et al., appellants, v. COUNTY OF SARPY, a corporate body politic, et al., appellees.
• Court: Nebraska Court of Appeals

19 Neb.App. 550

810 N.W.2d 182

DOWD GRAIN CO., INC., et al., appellants,

v.COUNTY OF SARPY, a corporate body politic, et al., appellees.

No. A–10–1238.

Court of Appeals of Nebraska.

Feb. 28, 2012.

Syllabus by the Court

1. Appeal and Error. In order to be considered by an appellate court, alleged errors must be both specifically assigned and specifically argued in the brief of the party asserting the error.

2. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

3. Judgments: Collateral Estoppel: Res Judicata. The applicability of the doctrines of res judicata and collateral estoppel is a question of law.

4. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.

5. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.

6. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's granting of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.

7. Summary Judgment: Affidavits. Affidavits received on a motion for summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

8. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of the litigant complaining about evidence admitted or excluded.

9. Trial: Presumptions: Evidence. In a bench trial, there is a presumption that the finder of fact disregards inadmissible evidence.

10. Actions: Judicial Notice. A court may judicially notice adjudicative facts, which are not subject to reasonable dispute, at any stage of the proceeding.

11. Actions: Judicial Notice: Appeal and Error. In interwoven and interdependent cases, an appellate court may examine its own records and take judicial notice of the proceedings and judgment in a former action involving one of the parties.

12. Zoning: Ordinances: Time. The time of decision rule generally requires that the zoning ordinance and regulations in effect at the time of a court's decision control its outcome.

13. Statutes: Legislature: Intent: Time. Generally, an appellate court will apply the statute in effect at the time of its decision, at least when the legislature intended that its modification be retroactive to pending cases.

14. Statutes: Legislature: Intent: Time. The purpose of the principle of an appellate court's applying the statute in effect at the time of its decision is to effectuate the current policy declared by the legislative body.

15. Zoning: Licenses and Permits. Under Neb.Rev.Stat. § 23–114.04(1) (Reissue 2007), a county board enforces the zoning regulations within its county by requiring the issuance of permits prior to the construction of any nonfarm building or structure within a zoned area.

16. Zoning: Licenses and Permits. Under Neb.Rev.Stat. § 23–114.04(1) (Reissue 2007), a county board may provide for the withholding of any permit if the purpose for which it is sought would conflict with zoning regulations.

17. Evidence: Appeal and Error. An appellate court cannot consider as evidence statements made by the parties at oral argument or in briefs, as these are matters outside the record.

18. Appeal and Error. The law-of-the-case doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the same suit.

19. Appeal and Error. An exception to the law-of-the-case doctrine applies if a party shows a material and substantial difference in the facts on a matter previously addressed by an appellate court.

20. Collateral Estoppel: Res Judicata: Proof. For application of the doctrines of collateral estoppel or res judicata, the party relying on either of those principles in a present proceeding has the burden to show that a particular issue was involved and necessarily determined in a prior proceeding.

21. Res Judicata. Res judicata does not apply when there has been an intervening change in facts or circumstances.

22. Moot Question: Words and Phrases. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

23. Moot Question. Unless an exception applies, a court or tribunal must dismiss a moot case when changed circumstances have precluded it from providing any meaningful relief because the litigants no longer have a legally cognizable interest in the dispute's resolution.

24. Moot Question: Appeal and Error. Under the public interest exception, an appellate court may review an otherwise moot case if it involves a matter affecting the public interest or when other rights or liabilities may be affected by its determination.

25. Moot Question: Appeal and Error. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.

Terry J. Grennan, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, and Duane J. Dowd for appellants.

Kim K. Sturzenegger and Richard L. Boucher, of Boucher Law Firm, Lincoln, for appellees County of Sarpy, Richard Houck, and Sarpy County Department of Planning and Building.

Joseph E. Jones and Timothy J. Thalken, of Fraser Stryker, P.C., L.L.O., Omaha, for appellee OSI Properties Limited Partnership.

INBODY, Chief Judge, and CASSEL and PIRTLE, Judges.

CASSEL, Judge.

INTRODUCTION

In a prior appeal, we reversed the district court's judgment of dismissal on the pleadings, where the complaint alleged noncompliance with design aspects of a 2004 zoning ordinance. In 2007, the County of Sarpy enacted a revised zoning regulation which, appellees argue, had the effect of excepting the property at issue from the design requirements. Upon remand, the district court entered summary judgments, determining that the 2007 revised regulation rendered the complaint moot. We conclude that the time of decision rule requires us to apply the regulations now in effect, that the revised regulation excepts the property at issue, and that the issues raised by the complaint are moot. Accordingly, we affirm the summary judgments entered in favor of appellees.

BACKGROUND

This litigation is before us for a second time. We begin by summarizing the proceedings leading to the first appeal.

Dowd Grain Co., Inc.; Duane J. Dowd, trustee; Grand Prix, Inc.; Duane J. Dowd; and Lawrence Dowd (collectively Dowd) filed an action in December 2005 in the Sarpy County District Court against appellees—the County of Sarpy, Richard Houck, and the Sarpy County Department of Planning and Building (collectively the Sarpy County defendants) and OSI Properties Limited Partnership (OSI). The complaint sought relief such as declaratory judgment, temporary and permanent injunctions, the abatement of a nuisance, and damages based on an alleged improper issuance of building permits and zoning violations. The complaint alleged that the building OSI intended to construct, if completed as designed, would violate certain provisions of an overlay district zoning ordinance which was adopted on March 9, 2004. In particular, OSI's building would use metal panels on areas visible to the public, would have flat facades which were not articulated every 50 feet, and would have loading docks facing public streets, all of which would violate the ordinance.

OSI filed a motion for judgment on the pleadings, and the Sarpy County defendants joined in the motion. The district court sustained the motions and dismissed Dowd's complaint.

Dowd appealed to this court, which appeal was docketed as case No. A–06–682. On appeal, we reversed the judgment and remanded the cause for further proceedings in a memorandum opinion. See Dowd Grain Co. v. County of Sarpy, No. A–06–682, 2008 WL 2511147 (Neb.App. June 24, 2008) (selected for posting to court Web site). We determined that some of the issues raised by the complaint were properly before the district court under Neb.Rev.Stat. § 23–114.05 (Reissue 2007), even though Dowd was also pursuing an appeal of the issuance of the building permits to the county board of adjustment. On that same day, we released a memorandum opinion in a related case, Dowd Grain Co. v. County of Sarpy Bd. of Adj., No. A–06–681, 2008 WL 2511150 (Neb.App. June 24, 2008) (selected for posting to court Web site), but we expressed no opinion on whether our resolution in that case would affect the proceedings in case No. A–06–682 on remand. The Nebraska Supreme Court subsequently denied appellees' respective petitions for further review.

After briefing on the appeal in case No. A–06–682 had been completed, the Sarpy County Board of Commissioners enacted a revised zoning regulation governing the highway corridor overlay district. As amended...