Neun v. Ewing
| Decision Date | 22 May 2015 |
| Docket Number | No. S–14–623,S–14–623 |
| Parties | Paul A. Neun and Crystal A. Neun, Appellants, v. John W. Ewing, Jr., Douglas County Treasurer, and Anne M. Determan, Appellees. |
| Court | Nebraska Supreme Court |
Paul D. Heimann, of Erickson & Sederstrom, P.C., Omaha, for appellants.
Donald W. Kleine, Douglas County Attorney, and Timothy K. Dolan for appellee John W. Ewing, Jr.
Jeffrey J. Blumel, of Abrahams, Kaslow & Cassman, L.L.P., Omaha, for appellee Anne M. Determan.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Summary Judgment: Appeal and Error.An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error.In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Motions to Dismiss: Appeal and Error.A district court's grant of a motion to dismiss is reviewed de novo.
4. Motions to Dismiss: Pleadings: Appeal and Error.When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusion.
5. Statutes: Appeal and Error.To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.
6. Statutes.Statutes relating to the same subject are in pari materia and should be construed together.
7. Motions to Dismiss: Pleadings.To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim for relief that is plausible on its face.
Paul A. Neun and Crystal A. Neun (Appellants) appeal from the order which disposed of their petition for a writ of mandamus against John W. Ewing, Jr., the Douglas County treasurer (Treasurer), and Anne M. Determan, the holder of the tax sale certificate for Appellants' property. Appellants petitioned for such relief after they attempted to redeem their property in the manner prescribed by Neb.Rev.Stat. § 77–1824 (Reissue 2009) and were advised by both the Treasurer and Determan that the only avenue of redemption available to Appellants was Neb.Rev.Stat. § 77–1917 (Reissue 2009), which, unlike § 77–1824, required payment of costs and attorney fees.
Appellants principally challenge the district court's determination that once a foreclosure action was filed, they could not redeem their property under § 77–1824 but had to use the manner of redemption provided in § 77–1917. This determination was the basis for entering summary judgment in the Treasurer's favor. Appellants also challenge the district court's conclusion that Determan did not owe them a duty to return the amount they paid in costs and attorney fees under § 77–1917. Because we find no error in either regard, we affirm.
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.
A district court's grant of a motion to dismiss is reviewed de novo. SID No. 1. v. Adamy, 289 Neb. 913, 858 N.W.2d 168 (2015). When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusion. Id.
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Id.
This case involves a parcel of real estate located in Douglas County, Nebraska, and owned by Appellants. Hereinafter, this real estate will be referred to as “the property.”
On March 1, 2010, at a public tax sale, the property was sold to Determan for delinquent taxes. On that same day, a tax sale certificate for the property was issued to Determan.
On August 30, 2013, pursuant to Neb.Rev.Stat. § 77–1902 (Reissue 2009), Determan timely filed an action in the district court for Douglas County to foreclose the tax lien represented by the tax sale certificate. Determan prayed that the property be sold to pay the amount due under the tax sale certificate, plus interest, as well as costs and attorney fees. Appellants and various junior lienholders were named as defendants in the complaint, and they were served accordingly.
On October 9, 2013, Appellants attempted to redeem their property pursuant to § 77–1824 by tendering the balance due under the tax sale certificate to the Treasurer. The Treasurer rejected Appellants' tender, advised them that § 77–1824 was “not relevant to [their] situation,” and directed them to contact Determan for information on the proper way to redeem the property. This started a debate between Appellants and Determan concerning the proper method of redemption. Appellants claimed that they were entitled to redeem their property pursuant to § 77–1824, which did not require payment of costs or attorney fees, and that they could make the necessary payment to the Treasurer. Conversely, Determan argued that because a foreclosure action had been filed, Appellants' exclusive method of redemption was § 77–1917.
Appellants ultimately paid Determan the amount required by § 77–1917, because they felt that they had “no other avenue
to redeem” the property and they did not want to “lose their home.” Upon receipt of this payment, Determan moved to dismiss her foreclosure action with prejudice, which motion the district court sustained.
On the day the foreclosure action was dismissed, Appellants petitioned the district court in a separate action for a writ of mandamus ordering the Treasurer and Determan to accept redemption of the property pursuant to § 77–1824. Appellants alleged (1) that they had a “statutory, non-judicial right to redeem a tax certificate through the Treasurer under ... § 77–1824... whether or not there [was] a foreclosure action pending”; (2) that the Treasurer had a “ministerial duty to accept funds for purposes of redemption under ... § 77–1824 ”; (3) that Determan was an agent of the Treasurer and thus had a “ministerial duty to honor a redemption tendered pursuant to ... § 77–1824 ”; and (4) that Appellants had “no adequate remedy at law [,] because [the Treasurer and Determan] refuse[d] to allow [Appellants] to redeem through [the] Treasurer as requested.” Appellants prayed for a writ of mandamus directing the Treasurer and Determan to complete redemption of the property in the manner prescribed by § 77–1824. Appellants also requested that the funds which Appellants had paid Determan be applied to the redemption under § 77–1824 and that the amount they had paid in costs and attorney fees be refunded.
In response, Determan moved to dismiss for failure to state a claim. The Treasurer and Appellants each moved for summary judgment.
After a hearing, the district court overruled Appellants' motion and entered judgment in favor of the Treasurer. Relying upon Brown v. Glebe, 213 Neb. 318, 328 N.W.2d 786 (1983), and the language of §§ 77–1824 and 77–1917, the court concluded that as the holder of a tax sale certificate, Determan could choose between “two distinct methods to satisfy tax certificates,” and that Appellants were “bound” by her choice to pursue foreclosure. Accordingly, the court rejected Appellants' argument that they could “choose how to redeem their property.” It held that as a matter of law, once Determan filed a foreclosure action, Appellants could not
redeem their property under § 77–1824, and that the exclusive method for Appellants to redeem their property was pursuant to § 77–1917.
The district court sustained Determan's motion to dismiss for failure to state a claim. It found that Determan was not the proper subject of a mandamus action, because “she is an individual and has no duty to [Appellants].”
Appellants timely appeal. Pursuant to our statutory authority to regulate the dockets of the appellate courts of this state, we moved the case to our docket. See Neb.Rev.Stat. § 24–1106(3) (Reissue 2008).
Appellants assign, restated, that the district court erred (1) in concluding that after the holder of a tax sale certificate files a foreclosure action, § 77–1917 is the exclusive remedy of redemption, and (2) in dismissing Determan as an improper party to a mandamus action.
There are two issues presented by this appeal: (1) whether the owner of property sold at a tax sale can redeem such property under § 77–1824 after the holder of the tax sale certificate has filed a judicial foreclosure action pursuant to § 77–1902 and (2) whether the district court erred in dismissing Determan from the case. We address each in turn.
We begin our analysis with an overview of the statutory scheme relating to tax sales. At the time Appellants filed their mandamus action, ...
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