Sinn v. City of Seward

• Decision Date: 18 October 1994
• Docket Number: No. A-93-025,A-93-025
• Citation: 523 N.W.2d 39,3 Neb.App. 59
• Court: Nebraska Court of Appeals
• Parties: Ronald SINN, Appellant, v. CITY OF SEWARD, a City of the First Class, et al., Appellees.

Page 39

523 N.W.2d 39

3 Neb.App. 59

Ronald SINN, Appellant, v. CITY OF SEWARD, a City of the First Class, et al., Appellees.

No. A-93-025.

Court of Appeals of Nebraska.

Oct. 18, 1994.

Syllabus by the Court

1. Motions for New Trial: Time: Appeal and Error. A notice of appeal must be filed within 30 days of the rendition of a judgment. However, a motion for new trial, filed within 10 days of the rendition of judgment, tolls the running of time for filing the notice of appeal.

2. Judgments: Records: Appeal and Error. The mere oral pronouncement of a judgment without an entry on the trial docket is not the rendition of judgment and does not set the clock for appeals.

3. Judgments: Records. In the absence of a trial docket notation, judgment is rendered when some written notation is made and filed in the records of the court which becomes the equivalent of the notation on the trial docket.

4. 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.

5. 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.

6. 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.

7. Constitutional Law: Due Process: Property. The 14th Amendment to the U.S. Constitution prohibits the taking of property without due process.

8. Constitutional Law: Employer and Employee. With respect to employment, there is a protected property interest in employment when the employee has a legitimate claim of entitlement to continued employment.

9. Constitutional Law: Employer and Employee. An employee has no protected property interest in an expected salary raise.

10. Constitutional Law: Public Officers and Employees. A grievance filed by a public employee must involve matters of public concern, rather than private concern, so as to be entitled to First Amendment protection.

11. Employer and Employee: Discrimination. The major focus of Neb.Rev.Stat. § 20-148 (Reissue 1991) is to provide a civil action for recovery for private acts of discrimination by private employers.

12. Municipal Corporations: Contracts: Claims: Time. Under Neb.Rev.Stat. § 16-726 (Reissue 1991), a contract claim against a city of first class must be filed within 90 days of the accrual of the claim in the office of the city clerk.

Robert Wm. Chapin, Jr., for appellant.

Jerry L. Pigsley, of Harding & Ogborn, for appellees.

SIEVERS, C.J., and CONNOLLY and HANNON, JJ.

SIEVERS, Chief Judge.

This matter is before us upon Ronald Sinn's appeal after the district court for Seward County sustained the demurrer to his third amended petition and dismissed the case. The issues presented are, first, whether Sinn timely perfected his appeal; second, whether the third amended petition was subject to the demurrer; and third, even if so, whether leave to amend should have been granted.

ALLEGATIONS OF THIRD AMENDED PETITION

We summarize the allegations of the third amended petition as follows: The first paragraph of the third amended petition alleges that the action is brought pursuant to 42 U.S.C. § 1983 (1986), 42 U.S.C. § 1988 (1989), Neb.Rev.Stat. § 20-148 (Reissue 1991), and "[for] breach of contract." Sinn works for the City of Seward in the waste water department and has done so since 1981. The individually named defendants are the city administrator of Seward and four city council members. The estate of Fred J. Welsh is named as a defendant "as a claim based on this action has been filed in the County Court of Seward County in PR 92-01." On November 30, 1989, Sinn "filed a grievance contesting his rate of pay, salary grade, and classification," but alleges that such grievance "was denied by Mayor Fred Welsh." Sinn requested a hearing before the city council, but alleges that all the defendants and Mayor Welsh refused "to process the plaintiff's grievance." Sinn alleges that he filed another grievance on January 22, 1991, and received a negative response from the city administrator. However, prior thereto, in July 1990, Sinn, along with other unnamed employees, filed a petition with the Commission of Industrial Relations (CIR) alleging a dispute as to "wages, terms, and conditions of employment." The CIR granted the City of Seward's motion to dismiss on November 1, 1990, finding that "there is no allegation or evidence of the existence of an industrial dispute." No appeal was taken from this determination. During the pendency of the CIR action, Sinn was notified that the salary increase approved by the defendants on July 23, 1990, would be frozen for 1 year or until further notice. Sinn alleged that his increase for the 1990-91 fiscal year would have been $1,086.80. The city administrator indicated to Sinn that the city had elected to freeze wages for nonappointed employees in the waste water and water departments as a result of unexpected litigation costs incurred by the city in the CIR proceeding, causing the city to have insufficient funds with which to pay increases to waste water and water employees, including Sinn.

Sinn alleges that the actions of the defendants constituted a taking of $41.80 per pay period from his salary which was accomplished without a hearing or notice to him and in retaliation for his association with other employees who brought suit in the CIR to litigate the issue of their pay and treatment by the city "which is of public concern." Sinn alleges that the actions of the defendants are for the purpose of prohibiting and discouraging Sinn from associating with others about policies, wages, hours, and conditions of employment.

Sinn alleges a Fifth Amendment right to a hearing regarding the wage freeze. He also alleges that his civil rights under § 20-148 have been denied by the taking of his money without notice or hearing, contrary to article I, § 3, of the Nebraska Constitution, and that such taking is in retaliation for his exercise of his right of association as guaranteed by the 1st and 14th Amendments to the U.S. Constitution and by the Constitution of the State of Nebraska.

The third amended petition further alleges the existence of a personnel manual setting forth a grievance procedure which allows an aggrieved employee to protest salary decreases and that on January 22, 1991, Sinn filed "a grievance contesting the taking of his money." The third amended petition alleges The foregoing represents an attempted distillation of Sinn's 14-page, 51-paragraph third amended petition. This petition also has pleadings attached from the action before the CIR.

that under Seward city ordinance § 2-101, the Finance, Audit, Budget, and Personnel Committee handles employee grievances as a fact finder and reports to the full city council for final determination, but that the defendants refused to comply with § 2-101 and denied Sinn a factfinding hearing and a hearing before the full city council. The prayer of the third amended petition asks for a finding that the defendants had violated Sinn's civil and due process rights by denying him his property in violation of the 5th and 14th Amendments to the U.S. Constitution and article I, § 3, of the Nebraska Constitution. Sinn also alleges the denial of his First Amendment right of freedom of expression and association. Sinn alleges that he has suffered actual damages from lost pay in the past and in the future. Sinn also claims entitlement to punitive damages and to attorney fees under 42 U.S.C. § 1988.

PROCEDURAL HISTORY

On August 11, 1992, the defendants demurred to the third amended petition for the reasons that it did not state facts sufficient to constitute a cause of action, the court had no jurisdiction over the subject matter, and the court had no jurisdiction over the estate of defendant Welsh. The demurrer included a notice of hearing for August 31. Thirty minutes after the appointed hour, the court took up the demurrer of the defendants, reciting that Sinn did not appear in person or by counsel. After hearing argument from the defendants, the trial court stated on the record:

[D]efendants' demurrer to plaintiff's third amended petition should be and is sustained. Third amended petition is dismissed with prejudice. I'm going to take the application for attorney fees under advisement.... I do want to study that a bit further. But to that extent if you want to prepare an order and send it to me, I'll entertain it accordingly.

(Emphasis supplied.)

No trial docket is included within the transcript before this court; however, the "Judge's Notes," which does not bear a file stamp of the clerk of the court, is dated August 31, 1992, and has a date of service upon counsel of September 1, 1992. The document states: "Defendants' demurrer argued and sustained in open court. Plaintiff's third amended petition is dismissed without prejudice. Application for attorney's fees reserved and taken under advisement. Clerk will please notice." (Emphasis supplied.)

On September 2, the trial court signed a 7-page document entitled "Findings and Order" which was file stamped by the clerk of the district court that same day. This document sets forth the ruling that "the Defendants' Demurrer should be sustained and the Plaintiff's Third Amended Petition should be dismissed with prejudice." (Emphasis supplied.) The trial court made a specific finding denying Sinn another opportunity to amend the petition, since "no reasonable possibility...