Kuhlmann v. City of Omaha

• Decision Date: 06 December 1996
• Docket Number: No. S-94-883,S-94-883
• Citation: 556 N.W.2d 15,251 Neb. 176
• Parties: Ronald D. KUHLMANN, Appellant, v. CITY OF OMAHA and City of Omaha Zoning Board of Appeals, Appellees.
• Court: Nebraska Supreme Court

Page 15

556 N.W.2d 15

251 Neb. 176

Ronald D. KUHLMANN, Appellant, v. CITY OF OMAHA and City of Omaha Zoning Board of Appeals, Appellees.

No. S-94-883.

Supreme Court of Nebraska.

Dec. 6, 1996.

Syllabus by the Court

1. Zoning: Appeal and Error. An appellate court reviews the decision of a district court, and irrespective of whether the district court took additional evidence, the appellate court is to decide if, in reviewing a decision of a zoning board of appeals, the district court abused its discretion or made an error of law. Where competent evidence supports the district court's factual findings, the appellate court will not substitute its factual findings for those of the district court.

2. Zoning: Appeal and Error. Decisions of a zoning board of appeals are reviewable by a district court pursuant to Neb.Rev.Stat. §§ 14-413 and 14-414 (Reissue 1991).

3. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

4. Zoning: Appeal and Error. Neb.Rev.Stat. § 14-413 (Reissue 1991) provides that a decision of a zoning board of appeals may be reviewed by a district court, but the scope of the district court's review is limited to the legality or illegality of the board's decision.

5. Zoning: Appeal and Error. Neb.Rev.Stat. § 14-414 (Reissue 1991) provides that a district court may reverse or affirm, wholly or partly, or may modify a decision of a zoning board of appeals brought up for review. Pursuant to § 14-414, the district court is given only the power to reverse, modify, or affirm the decision brought up for review.

6. Jurisdiction: Words and Phrases. Jurisdiction is defined as a court's power or authority to hear a case.

7. Courts: Zoning: Jurisdiction: Appeal and Error. A district court's power in a review of a decision of a zoning board of appeals extends only to reviewing issues which are brought up for review from the board. The district court lacks the power to hear a counterclaim which was never before the board.

8. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

9. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a court which lacks subject matter jurisdiction is void. It is a longstanding rule in Nebraska that such a void judgment may be attacked at any time in any proceeding.

10. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning. In addition, an appellate court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.

11. Injunction: Appeal and Error. Pursuant to Neb.Rev.Stat. § 14-415 (Reissue 1991), injunctive relief may not be requested for the first time in a district court by way of a counterclaim in an appeal pursuant to Neb.Rev.Stat. § 14-413 (Reissue 1991). The party requesting injunctive relief must institute the action.

John M. Vodra and Victor J. Lich, Jr., of Lich, Herold & Mackiewicz, Omaha, for appellant.

Alan M. Thelen, Assistant Omaha City Attorney, for appellees.

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

LANPHIER, Justice.

Appellant, Ronald D. Kuhlmann, sold property located at 6015 South 30th Street to C.M.T. Enterprises (C.M.T.) and its president, Michael Christensen, after obtaining a 1-year use waiver on the property from the City of Omaha Zoning Board of Appeals (Board). This 1-year waiver allowed C.M.T. to operate a recycling business within 300 feet of a residential zone. After the year had expired, the Board did not renew the waiver.

Upon the failure of the Board to renew the waiver, Kuhlmann filed a petition in Douglas County District Court pursuant to Neb.Rev.Stat. § 14-413 (Reissue 1991) for review of the Board's decision. The City of Omaha (City) filed a counterclaim to Kuhlmann's action, stating that Kuhlmann was violating the city municipal code and requesting injunctive relief to stop the operation of the business and to clear the property. The district court granted the temporary injunction.

Prior to the trial to make the temporary injunction permanent, Kuhlmann voluntarily dismissed his petition. The City proceeded with its counterclaim. The district court for Douglas County then found for the City and ordered a permanent injunction against Kuhlmann. This appeal follows. We removed the case from the Nebraska Court of Appeals docket pursuant to our power to regulate the dockets of the appellate courts. We conclude that pursuant to § 14-413 and Neb.Rev.Stat. § 14-414 (Reissue 1991), the district court did not have subject matter jurisdiction to hear the City's counterclaim or to order injunctions against Kuhlmann. The judgment of the district court is therefore reversed.

BACKGROUND

In March 1991, Kuhlmann entered into a land contract to sell the subject property to C.M.T. and Christensen, with a closing date of May 1, 1991. This sale was conditioned upon a use waiver being obtained from the City to allow C.M.T. to run a recycling business within 300 feet of the existing residential zone.

On March 28, 1991, the Board granted a 1-year waiver of the 300-foot setback, subject to the landscaping plan submitted to the Board. After a year, on April 23, 1992, the Board denied a motion for an additional waiver on a 2-to-2 vote. On May 22, Kuhlmann filed a petition in Douglas County District Court against the City and the Board for review of the denial of the variance request pursuant to § 14-413. Kuhlmann claimed the denial was arbitrary and illegal, and asked for reinstatement of the waiver.

The City answered Kuhlmann's action, stating that the landscaping conditions had not been met, and counterclaimed, alleging that Kuhlmann "has operated, or has allowed to operate, a landfill operation on the subject property" in violation of § 55-767(b) of the Omaha Municipal Code. The City sought both a temporary and a permanent injunction pursuant to Neb.Rev.Stat. § 14-415 (Reissue 1991) to enjoin Kuhlmann from the illegal uses of the subject property and to remove the materials from it. Kuhlmann replied that the variance was not temporary and, in regard to the counterclaim, stated that § 14-415 does not authorize equitable relief to force the removal of material from the subject property. The City then filed for a temporary injunction.

On October 30, 1992, a hearing was held on the temporary injunction. On December 4, the court issued an order finding Kuhlmann was occupying and using the building on the property without a "Certificate of Occupancy" and ordered Kuhlmann not to operate a recycling business, landfill, or scrap or salvage operation on the property in violation of the city ordinance. The court enjoined Kuhlmann from operating said activities and ordered him to remove scrap materials listed in the order.

The City filed a "Motion for Finding of Contempt of Court" against Kuhlmann, C.M.T., and Christensen on March 3, 1993, for violation of the December 4, 1992, order. Kuhlmann, C.M.T., and Christensen were issued an "Order to Show Cause." On April 9 and 26, 1993, the district court held hearings on the motion. On June 4, the district court entered an order finding Kuhlmann in contempt of court for "aiding and abetting a On June 19, 1993, a sentencing hearing was held. Kuhlmann, C.M.T., and Christensen were ordered to have the property cleaned and all junk removed before July 26 or they would be fined $500 per day until the property was clear. On August 11, the City filed a "Motion for Sanctions for Contempt " against Kuhlmann, C.M.T., and Christensen. On August 31, a hearing was held on the motion. On September 1, the City filed a "Motion for Increased Sanctions for Contempt" and a second "Order to Show Cause " was issued.

                business operation not in compliance with the Ordinances of the City of Omaha."   The district court also found that Kuhlmann was in privity of contract with both C.M.T. and Christensen, and that in a land contract, the vendor "retains legal title to the property as security for payment of contract price."
                

On December 30, 1993, Kuhlmann filed a motion for the dissolution or modification of the temporary injunction and vacation of the judgment of contempt. Kuhlmann requested the court to dissolve the December 4, 1992, temporary injunction and to vacate the June 4, 1993, contempt judgment. The district court denied the motion on February 18, 1994. The district court stated that once the use waiver was denied, C.M.T. was in default of the land contract by its continual operation of the salvage yard in violation of Omaha city ordinances. The district court stated that once Kuhlmann notified C.M.T. of the default and C.M.T. did not effect a cure or obtain a variance, Kuhlmann had 10 months to bring a foreclosure action. The court stated that by his inactivity, Kuhlmann allowed the illegal operation of a salvage yard to continue on the subject property. On March 10, Kuhlmann was fined $1,000 for contempt, with $500 of the fine to be purged by his foreclosure action on the property.

Final trial was held on June 27, 1994. Kuhlmann voluntarily dismissed his cause of action regarding the petition for a variance of the subject property. On July 28, the district court found in favor of the City on its counterclaim and entered a permanent injunction along the lines of the temporary injunction enjoining Kuhlmann from using the property or allowing the property to be used for the purpose of operating a recycling business, scrap and salvage yard, or landfill. Kuhlmann was instructed to remove any and all scrap materials and garbage from the property.

Kuhlmann motioned for a new trial on August 5, 1994. The district court...