Hoiengs v. County of Adams

• Decision Date: 13 May 1994
• Docket Number: No. S-92-777,S-92-777
• Citation: 516 N.W.2d 223,245 Neb. 877
• Parties: Daniel HOIENGS, on Behalf of Himself and All Other Persons Similarly Situated, Appellant, v. COUNTY OF ADAMS et al., Appellees.
• Court: Nebraska Supreme Court

Page 223

516 N.W.2d 223

245 Neb. 877

Daniel HOIENGS, on Behalf of Himself and All Other Persons Similarly Situated, Appellant, v. COUNTY OF ADAMS et al., Appellees.

No. S-92-777.

Supreme Court of Nebraska.

May 13, 1994.

Syllabus by the Court

1. Demurrer: Declaratory Judgments. The use and determination of a demurrer in actions for declaratory judgment are controlled by the same principles as apply in other cases.

2. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, 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.

3. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff.

4. Demurrer: Pleadings. In ruling on a demurrer, the petition is to be construed liberally; if as so construed the petition states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled.

5. Actions: Parties. The propriety of substituting parties depends on whether the cause of action otherwise remains the same; thus, where such substitution will introduce a new cause of action into the case, the substitution will not be allowed.

6. Actions: Parties. In determining whether a new cause of action results from the substitution of parties, the test is whether an attempt is made to state facts giving rise to a wholly distinct and different legal obligation against the defendant, or to change the liability sought to be enforced.

7. Parties. In order to substitute one party for another, the party substituted must bear some relation to the original party or possess an interest in the controversy sufficient to enable that party to maintain the proceeding.

8. Pleadings. Under Neb.Rev.Stat. § 25-852 (Reissue 1989), a court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party.

9. Pleadings. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made.

10. Pleadings. Neb.Rev.Stat. § 25-852 (Reissue 1989) is to be liberally construed and amendments permitted when proposed at an opportune time in the furtherance of justice.

11. Actions: Immunity. For purposes of applying the doctrine of sovereign immunity, a suit against an agency of the state is the same as a suit against the state.

12. Political Subdivisions: Counties. A county is a political subdivision of the state having subordinate powers of sovereignty conferred by the Legislature.

13. Constitutional Law: Immunity: Waiver. Neb. Const. art. V, § 22, providing that the state may sue and be sued and that the Legislature shall provide by law in what manner and in what courts suits shall be brought, permits the state to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe.

14. Statutes: Immunity. Statutes authorizing suits against the state are to be strictly construed because such statutes are in derogation of the state's sovereign immunity.

15. Immunity: Waiver. Waiver of sovereign immunity will only be found where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.

16. Declaratory Judgments: Words and Phrases. The term "person," as used in the declaratory judgment statutes, is broad enough to include the state or any subdivision thereof.

17. Declaratory Judgments: Immunity: Appeal and Error. Just as an appellate court must determine the scope of review in an action for declaratory judgment from the nature of the dispute, so does such a court determine whether sovereign immunity lies.

18. States: Contracts: Employer and Employee. State retirement systems create contracts between the state and its employees who are members of the system.

19. Administrative Law: Governmental Subdivisions. An administrative agency is a governmental authority, other than a court and other than a legislative body, which affects rights of private parties through either adjudication or rulemaking.

20. Counties: Claims: Warrants. Neb.Rev.Stat. § 23-135 (Reissue 1991) applies where a claim is not a mere formal prerequisite to the issuance of a warrant in payment, but, rather, requires quasi-judicial action in the sense that an exercise of discretion is required in ascertaining or fixing the amount to be allowed, or resolution of the claim otherwise involves a determination of factual questions based upon evidence.

21. Declaratory Judgments: Parties. The declaratory judgment statutes are applicable only where all interested persons are made parties to the proceedings.

22. Parties: Words and Phrases. An indispensable or necessary party to a suit is one who has an interest in the controversy to an extent that such party's absence from the proceedings prevents a court from making a final determination concerning the controversy without affecting such party's interest.

23. Parties: Jurisdiction: Waiver. The presence of necessary parties to a suit is a jurisdictional matter and cannot be waived by the parties; it is the duty of the plaintiff to join all persons who have or claim any interest which would be affected by the judgment.

24. Actions: Words and Phrases. A cause of action consists of the fact or facts which give one a right to judicial relief against another.

25. Actions. Whether more than one cause of action is stated depends mainly upon whether more than one primary right or subject of controversy is presented and also upon whether recovery on one ground would bar recovery on the other, whether the same evidence would support the different counts, and whether separate actions could be maintained for separate relief.

26. Declaratory Judgments. In addition to the requirement that a justiciable issue must be presented for declaratory relief, a court should enter a declaratory judgment only where such judgment would terminate or resolve the controversy between the parties.

27. Courts: Jurisdiction: Contracts. A court which has entered a judgment declaring the rights of the parties under contract has the power to retain jurisdiction and grant further relief, which contemplates necessary supervision of such contracts and entry of supplemental judgments and orders from time to time.

28. Declaratory Judgments. The declaratory judgment statutes are remedial; their purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered.

29. Statutes: Words and Phrases. While "or," when used properly, is disjunctive and "and" conjunctive, the words are so frequently interchanged that in construing a civil statute, "or" may be read as "and" where a strict reading would lead to an absurd or unreasonable result and defeat the intent of the statute.

30. Class Actions. There is no mechanical test for determining whether in a particular case the class is so numerous that the requirement of numerosity has been satisfied.

31. Class Actions. An action may not be maintained as a class action by a plaintiff on behalf of himself or herself and others unless he or she has the power as a member of the class to satisfy a judgment on behalf of all members of the class.

32. Class Actions. The test of common interest to maintain a class action is whether all the members of the purported class desire the same outcome of the action that their representative desires.

33. Class Actions. Persons having an interest adverse to those of parties purported to be represented cannot maintain a representative or class suit on behalf of the latter.

34. Class Actions. In determining the ability of a plaintiff to represent a class, it must appear that the relief sought is beneficial to the class members and that the plaintiff's interests are consonant with those of the other members of the class.

35. Class Actions. If any party included in a claimed class stands to suffer an economic loss as the result of his or her inclusion, the party initiating the class action will have an interest adverse to those of the parties he or she purports to represent, and, therefore, it can be said the action is not brought for the benefit of all members of the class.

36. Class Actions: Summary Judgment. Where the record demonstrates potentially conflicting interests within a class, it is appropriate to grant a motion for summary judgment as to the class aspect of the case.

37. Class Actions: Summary Judgment. All a court need determine in granting a motion for summary judgment denying the plaintiff the right to proceed in a class action is that the undisputed facts demonstrate the potentiality of conflict of interests between the represented, or some of them, and the interests which the plaintiff asserts.

38. Class Actions: Demurrer. While it may in some cases be appropriate to challenge a cause of action by demurrer, the determination of whether the suit is maintainable as a class action usually should be predicated on more information than the petition itself.

39. Class Actions: Due Process. The procedure in a class action must conform to the requirements of due process and fairly ensure the protection of absent parties who are to be bound.

40. Class Actions: Due Process: Notice. In particular cases there may be a due process requirement of notice to absent class members even though there is no express statutory requirement.

41. Class Actions: Due Process:...