Meints v. Vill. of Diller

• Decision Date: 01 June 2021
• Docket Number: No. A-20-597.,A-20-597.
• Parties: DANIEL A. MEINTS, APPELLEE, v. VILLAGE OF DILLER, NEBRASKA, APPELLANT.
• Court: Nebraska Court of Appeals

DANIEL A. MEINTS, APPELLEE, v. VILLAGE OF DILLER, NEBRASKA, APPELLANT.

No. A-20-597.

NEBRASKA COURT OF APPEALS

June 1, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Jefferson County, VICKY L. JOHNSON, Judge, on appeal thereto from the County Court for Jefferson County, LINDA A. BAUER, Judge. Judgment of District Court reversed, and cause remanded with directions.

Matthew B. Reilly and Thomas J. Culhane, of Erickson & Sederstrom, P.C., L.L.O., for appellant.

Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

The Village of Diller, Nebraska, appeals the Jefferson County District Court's order reversing the order of the Jefferson County Court which had dismissed with prejudice Daniel A. Meints' complaint alleging a statutory and constitutional taking of his property. For the reasons set forth herein, we reverse and remand with directions.

STATEMENT OF FACTS

In March 2019, Meints filed a complaint against the Village of Diller, Nebraska, and John and Jane Doe 1 through 10 (the Village) alleging a statutory and constitutional taking of his property located at 308 Castor Street without compensation. Meints alleged that in destroying his structure on that property, the Village violated his rights to due process, equal protection, and that said destruction of property constituted an impermissible constitutional and statutory taking of his property. Meints sought damages, a declaratory judgment, and injunctive relief.

In response, the Village filed a motion to dismiss claiming the county court lacked subject matter jurisdiction of the cause or, in the alternative, Meints failed to state a claim upon which relief could be granted. The Village alleged that Meints' complaint arose out of the regulatory action taken by the Village of Diller Board of Trustees to abate a nuisance on Meints' property located at 308 Castor Street. Specifically, the Village alleged that on December 12, 2016, the Board passed Resolution 2016-D directing the abatement of the nuisance on said property; that at Meints' request, the Board scheduled a hearing for January 9, 2017, to enable Meints to present evidence and argument showing cause as to why the property should not be demolished; that Meints requested a continuance of the hearing, which the Board granted and which resulted in a rescheduling of the hearing to February 13; that Meints failed to appear at the rescheduled February 13 hearing; that the February 13 hearing was held and, Meints having failed to show cause as to why the property should not be demolished to abate the nuisance thereon, the Board approved the abatement of the nuisance on the property; and that the property was demolished on or about March 8. The Village further alleged that Meints did not appeal or seek judicial review of the Board's decision to demolish the property pursuant to Neb. Rev. Stat. § 84-917 (Reissue 2014) and that Meints' failure to institute error proceedings within 30 days of the Board's final decision rendered his claims barred as a matter of law. Finally, the Village alleged that Meints could not "state a due process claim because the Board afforded him ample due process by virtue of granting him a hearing and accommodating [Meints'] scheduling requests."

At the hearing on the motion to dismiss, the Village offered 4 exhibits into evidence: (1) a certified copy of Resolution 2016-D; (2) the minutes of the Diller Village Board meeting held on January 9, 2017; (3) the minutes of the Diller Village Board meeting held on February 13, 2017; and (4) a March 27, 2017, letter from Meints' attorney to the Village making a claim for injury or damage due to the Village destroying the "single-family dwelling" which had been situated on 308 Castor Street. The Village requested that the county court take judicial notice of these exhibits claiming they were public records. Meints objected to the exhibits stating that "it's kind of clumsy using exhibits on a motion to dismiss." Meints also posed hearsay, relevance, and completeness objections to the exhibits. The county court received the exhibits into evidence over Meints' objections. Meints did not offer any evidence at the hearing on the motion to dismiss.

On January 27, 2020, the county court granted the Village's motion and dismissed Meints' complaint with prejudice. In its order, the county court found:

[The Village argues] that the proper remedy for [Meints] would have been via a petition in error or other appeal to the District Court within thirty (30) days of the Village's decision to demolish [Meints'] property. Since he did not do so, argues [the Village], [Meints'] complaint is an impermissible collateral attack on the Village's judicial decision to abate the nuisance pursuant to its police powers.

[Meints] contends that the petition in error is not an exclusive remedy and that in any event, collateral attacks are permissible if the judgment is void. There is no allegation in the complaint, however, that the judgment of the Village of Diller Board is void, nordoes [Meints] argue that it is. The exhibits received for purposes of the hearing on this motion [to dismiss] indicate that the Board had jurisdiction over the parties and the subject matter. There [are] a substantial number of cases which deal with the jurisdictional requirements of Neb. Rev. Stat. [§] 25-1903. . . . Unless the judgment of the Village were held to be void, it appears that a petition in error was, in fact, the exclusive remedy available to [Meints].

The Court has carefully considered each allegation in the Complaint and weighed whether any state a claim separate and distinct from the resolution passed by the Village Board on December 12, 2016[,] and the action that ensued from that. As [the Village] points out, any declaratory relief is moot, since the property was demolished almost three years ago. And although there is an allegation of inverse condemnation, [Meints] has not argued that the Board's action was anything besides an exercise of police power, nor does the limited evidence presented at the hearing suggest it was anything but that. Notwithstanding Nebraska's liberal notice pleading, none of the allegations state a basis for a remedy that was not available to [Meints] if he had properly appealed the Board's decision through a petition in error.

It does appear to the Court that the inverse condemnation claims and request for a declaratory judgment alleged by [Meints] herein are an attempt to appeal the actions of the Village of Diller Board in exercising their police powers to abate a nuisance. As a result, [Meints] should have filed a petition in error and since he failed to do so, the case should be dismissed for lack of jurisdiction.

On February 2, 2020, Meints filed a "Motion to Alter or Amend" which was overruled by the county court. Meints then timely appealed to the district court including in his notice of appeal his statement of errors which provided that the court erred in (1) determining the facts of the case; (2) determining the controlling case law; (3) finding that it lacked subject matter jurisdiction as to a portion of Meints' claims; (4) finding that Meints had not adequately set forth facts regarding a taking or damage having taken place with respect to the property identified; (5) finding that Meints had not adequately pled that his property was taken or damaged for a public purpose; (6) failing to rule on his claims for a declaratory judgment, for injunctive relief, and based upon a constitutional taking; (7) declining certification of this action to district court; (7) failing to observe the requirements of Neb. Rev. Stat. § 76-706 (Reissue 2018) pertaining to the statutory process for a condemnation action; and (9) failing to provide leave to amend his complaint.

A hearing was held before the district court in June 2020. Three exhibits were admitted into evidence: the transcript from the county court, the bill of exceptions from the county court, and a supplemental transcript containing the county court's January 27, 2020, order.

In June 2020, the district court reversed the order of the county court finding that Meints had (1) "alleged an arguable inverse condemnation cause of action in his complaint that would not necessarily be defeated by a failure to file a petition in error"; (2) that the motion to dismiss was, in effect, a motion for summary judgment and Meints should have been allowed to present affidavits in opposition to the motion; and (3) "the granting of a Motion to Dismiss, without leave to amend to cure any defect, was in error." The district court specifically noted in its order:

[T]he [county] court was free to take judicial notice of the public record without converting the Motion to Dismiss into a Motion for Summary Judgment. . . . [Meints] agreed that the offered exhibits were part of the public record of the case. However, as the Answer of [the Village] is not in the transcript, this Court cannot make this determination.

ASSIGNMENTS OF ERROR

The Village's assignments of error, consolidated and restated, are that the district court erred in (1) failing to consider exhibits that were properly offered and received in the county court and (2) reversing the county court's dismissal of Meints' complaint thereby effectively finding that Meints had stated a claim for relief sounding in inverse condemnation and that Meints could state a due process claim.

In its brief, the Village sets forth a concise summary of its arguments contending:

The district court erred in reversing the county court's dismissal of [Meints'] Complaint and, in conjunction with that error, the district court also erred in failing to consider the evidence--three public records and the tort claim that

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