Simon v. City of Omaha
| Decision Date | 09 April 2004 |
| Docket Number | No. S-02-1061.,S-02-1061. |
| Parties | TODD D. SIMON ET AL., APPELLANTS, v. CITY OF OMAHA, APPELLEE. |
| Court | Nebraska Supreme Court |
James D. Sherrets, Theodore R. Boecker, Jr., and Kimberly K. Carbullido, of Sherrets & Boecker, L.L.C., for appellants.
Paul D. Kratz, Omaha City Attorney, and Bernard J. in den Bosch for appellee.
Appellants, Todd D. Simon, Frank A. Pane, and Jamaica Partnership, filed a petition in the district court for Douglas County against appellee, City of Omaha, seeking injunctive and declaratory relief, after the Omaha City Council adopted a resolution that approved the "Omaha Performing Arts Society Douglas Street Heritage Development Project Redevelopment Plan" (redevelopment plan) for downtown Omaha. A portion of the resolution declared real property located within the proposed redevelopment plan, including properties owned by appellants, as "blighted" and "substandard." In their petition, appellants claimed appellee was "target[ing their properties] for eminent domain acquisition." In an amended resolution, appellants' properties were deleted from the area included within the redevelopment plan.
Appellants moved for costs and attorney fees. The district court denied the motion. The parties stipulated to the dismissal of the petition. Appellants appeal the order of the district court denying their motion for costs and attorney fees. We affirm.
The pertinent facts, which are essentially undisputed, are as follows:
Appellants are the owners of real property located at 112 South 11th Street, 1110 Douglas Street, and 1112 Douglas Street in Omaha. On February 5, 2002, the Omaha City Council adopted resolution No. 137-280. The resolution approved the redevelopment plan, which anticipated the development of a performing arts complex in a region of downtown Omaha. Although the resolution adopted the redevelopment plan and declared the downtown area covered by the redevelopment plan as "blighted" and "substandard," nothing within the resolution itself authorized the acquisition of real property in the area covered by the redevelopment plan.
Appellants' properties are located within the downtown area covered by the redevelopment plan. As such, appellants' properties were declared "blighted" and "substandard" by resolution No. 137-280.
On February 19, 2002, appellants filed a "Petition for Temporary Restraining Order, Temporary and Permanent Injunction and Declaratory Judgment," in the district court for Douglas County. In their 11-count petition, appellants alleged that the resolution's declaration of their properties as "blighted" and "substandard" was appellee's first step in a redevelopment plan that contemplated appellee taking appellants' properties by eminent domain. In their petition, appellants raised several legal challenges to the city council's adoption of resolution No. 137-280, including allegations that such action violated state statute, denied appellants due process and equal protection, and was induced through misrepresentation. Appellants sought, inter alia, injunctive relief enjoining "the effectiveness of any declaration that their properties . . . are blighted or substandard," and "a declaratory judgment that the declaration [of their] properties [as] blighted and substandard is arbitrary, capricious and invalid under law."
On February 20, 2002, the district court entered an order temporarily restraining the city council's "action of February 5, 2002 labeling [appellants'] properties [as] `blighted and substandard' . . . from becoming effective." The temporary restraining order specifically provided, however, that the order was "without prejudice to [appellee] proceeding with work on its redevelopment agreement."
On February 26, 2002, the parties appeared before the district court on appellee's motion to quash and to continue proceedings, which motion sought, in part, a continuance of any further proceedings while appellee sought to amend resolution No. 137-280 to remove appellants' properties from the redevelopment plan. The district court granted the continuance, and by agreement of the parties, the temporary restraining order was continued "until further order of the Court." On March 26, the city council amended resolution No. 137-280. Although appellants' properties remained designated as "blighted" and "substandard," the amendment removed appellants' properties from the redevelopment plan. Thereafter, the parties informed the district court that all issues in the dispute had been resolved.
On April 9, 2002, appellants' counsel informed the court that appellants intended to voluntarily dismiss their action. Also on April 9, the district court heard argument and received evidence on appellants' motion for costs and attorney fees which had been filed April 8. In their motion, appellants alleged they were due costs and attorney fees based on essentially three different theories: (1) federal civil rights statutes, 42 U.S.C. §§ 1983 and 1988 (2000); (2) the Nebraska eminent domain statutes, see Neb. Rev. Stat. § 76-701 et seq. (Reissue 2003); and (3) the common fund doctrine.
With respect to the federal civil rights statutes, appellants alleged that they had terminated and/or avoided an infringement of their federal constitutional rights encompassed in § 1983 and were therefore entitled to attorney fees under § 1988. With respect to the eminent domain statutes, appellants alleged that they had successfully terminated a taking by eminent domain and were therefore entitled to attorney fees pursuant to § 76-726(1). Finally, with respect to the common fund doctrine, appellants alleged that they were entitled to an award of costs and attorney fees, because they had "avoided an unnecessary and illegal land-banking and permanent taking of their property and saved substantial amounts of public funds as a result of this litigation."
On August 28, 2002, the district court entered an order denying appellants' motion for costs and attorney fees. The court rejected the theories advanced by appellants by noting that in the instant case, "there was no verdict, no prevailing party, no admission of error, [no] deprivation of procedural rights, nor was there an illegal or improper contract that was addressed so as to benefit taxpayers and the public in general." (Emphasis in original.) The court noted that its involvement had been de minimis and remarked that an award of fees would "arguably be a punishment to [appellee] for contributing to the amicable resolution of the parties' dispute" and "could have a chilling effect on future settlements."
On September 17, 2002, the district court dismissed appellants' lawsuit based upon the stipulation of the parties that the action was moot. Thereafter, appellants filed the instant appeal, challenging the district court's order denying their motion for costs and attorney fees.
Appellants assign various errors. These various assignments of error can be restated as one: The district court erred in denying appellants' motion for costs and attorney fees.
[1,2] Statutory interpretation presents a question of law, on which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. In re Interest of Tamantha S., ante p. 78, 672 N.W.2d 24 (2003). On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion. In re Trust Created by Martin, 266 Neb. 353, 664 N.W.2d 923 (2003); Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d 750 (1997).
[3] Initially, we note that as a general rule, attorney fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees. In re Trust Created by Martin, supra. In support of appellants' claim that they are entitled to an award of costs and attorney fees, in their brief on appeal, appellants raise various legal theories, none of which we determine to have merit. In particular, we address appellants' claims that as a consequence of their having filed this action, they are entitled to an award of costs and attorney fees under §§ 1983 and 1988, § 76-726(1), and the common fund doctrine. We conclude that appellants are not entitled to an award of costs and attorney fees under any of the theories they have advanced. We affirm the district court's order denying appellants' motion for costs and attorney fees.
Attorney Fees Under §§ 1983 and 1988.
[4] Appellants seek costs and attorney fees under the provisions of §§ 1983 and 1988. Under The Civil Rights Attorney's Fees Awards Act of 1976, courts may award reasonable attorney fees to a prevailing party in a civil rights action brought pursuant to § 1983. See § 1988(b) (). In support of their claim for costs and attorney fees under § 1988, appellants assert that while their properties have "`not . . .' been illegally taken [by appellee]," brief for appellants at 20, they have averted a denial of their due process rights caused by appellee's declaration that their properties were "blighted" and "substandard." We interpret appellants' argument on appeal as asserting that the filing of the present litigation by appellants acted as the catalyst in prompting the city counsel to amend resolution No. 137-280, and that therefore, appellants are entitled to § 1988 prevailing party status under the "catalyst theory," which posits that a plaintiff is deemed a "prevailin...
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