Stanko v. Smith, King, Simmons & Conn Law, P.C.

• Decision Date: 23 August 2022
• Docket Number: A-22-008
• Court: Nebraska Court of Appeals
• Parties: Rudy Stanko, appellant, v. Smith, King, Simmons & Conn Law, P.C., i.e. the Law Firm, Jamian Simmons, individually and in her official capacity as City Attorney for Gordon, Nebraska, and also as a private lawyer in the office of the Smith, King, Simmons & Conn Law, P.C., Glen Spaugh, individually and in his official capacity as City Manager and Zoning Officer for the City of Gordon, and the City of Gordon, appellees.

Rudy Stanko, appellant,
v.
Smith, King, Simmons & Conn Law, P.C., i.e. the Law Firm, Jamian Simmons, individually and in her official capacity as City Attorney for Gordon, Nebraska, and also as a private lawyer in the office of the Smith, King, Simmons & Conn Law, P.C., Glen Spaugh, individually and in his official capacity as City Manager and Zoning Officer for the City of Gordon, and the City of Gordon, appellees.

No. A-22-008

Court of Appeals of Nebraska

August 23, 2022

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 Sheridan County: Travis P. O'Gorman, Judge.

Rudy Stanko, pro se.

Steven W. Olsen, of Simmons Olsen Law Firm, P.C., L.L.O., for appellees Smith, King, Simmons & Conn Law, P.C., and Jamian Simmons.

Ryan M. Kunhart and Ryan J. Coufal, of Dvorak Law Group, L.L.C., for appellees Glen Spaugh and the City of Gordon.

Moore, Riedmann and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

INTRODUCTION

Rudy Stanko appeals from the Sheridan County District Court's dismissal of his petition for declaratory judgment and application for preliminary injunctive relief. For the reasons set forth herein, we affirm.

1

STATEMENT OF FACTS

On September 7, 2021, Stanko filed an action against Smith, King, Simmons, and Conn (the law firm), Jamian Simmons in her individual and official capacity as the city attorney for the City of Gordon, Glen Spaugh in his individual and official capacity as manager and zoning officer for the City of Gordon, and the City of Gordon, Nebraska, (collectively the Appellees) alleging common law civil tort violations and violations of his constitutional rights under 42 U.S.C. § 1983. Stanko's complaint appears to allege claims of discrimination, collusion to harm, conflict of interest, malpractice under the Political Subdivision State Tort Claims Act (PSTCA), and an action under 42 U.S.C. § 1983. The allegations in his complaint involve three incidents that he claims led to his rights being violated: (1) Appellees were a party to a 2003 lawsuit; (2) Appellees denied Stanko's permit request to build a fence; and (3) Appellees damaged the front sidewalk of commercial property Stanko purchased and "refus[ed] water" to said property.

Spaugh and the City of Gordon filed a motion to dismiss asserting the court lacked subject matter jurisdiction, that the applicable statute of limitations barred Stanko's claim, and that Stanko failed to state a claim for which relief could be granted. The law firm and Simmons also filed a motion to dismiss alleging that Stanko failed to state a claim for relief and that the court lacked jurisdiction because Stanko's claims related to their representation of Stanko in the land dispute which claims were currently under appeal.

All Appellees filed their motions to dismiss Stanko's complaints under rule 6-1112(b)(6). The district court granted the motions on a number of bases which can be summarized as follows: (1) that Stanko's § 1983 claims failed to state a claim upon which relief could be granted because the claims against the City of Gordon, Simmons, and Spaugh, acting in their official capacities, failed to allege how the city or its actors' policies or customs played a part in the violation of a federal law, thereby precluding the claims as violative of the doctrine of sovereign immunity; (2) that Stanko failed to plead sufficient facts which would establish individual claims against Simmons or Spaugh under § 1983; (3) that the malpractice claims against the law firm and its attorneys stemming from its representation of Stanko in 2003 were barred by the applicable 2-year statute of limitations; (4) that all common law tort claims filed against the City of Gordon, Simmons, and Spaugh acting in their official capacities required compliance with the PSTCA, which was not followed; and (5) that Stanko failed to state a claim for a right to injunctive relief. Stanko has timely appealed from the district court's dismissal of his action.

ASSIGNMENTS OF ERROR

Stanko assigns error to these rulings on the following bases:

1. Can the lower Court in violation of Federal 1^st Amendment petition right; Nebraska's Article I-19 Petition right[;] Federal and State due process rights embedded in the 5^th and 14^th Amendments; and statutory rights pursuant to [Neb. Rev. Stat §] 25-21,[149] & [Neb. Rev. Stat. §] 25-21[,]150 dismiss and ignore [Stanko's] Constitutional and statutory rights for equitable relief for (5) issues stated in the pleading for a declaratory judgment

2. Does [Stanko] have a common law Federal 7^th Amendment right and a common law "at law" [(Article 1-13)] Nebraska Article I-7 Constitutional right for a jury to judge

2

the 114 facts; the factual damages stated in the complaint; as well as, mental anguish, mental suffering, pain, and distress along with punitive damages?

3. The lower Court erred in its Order by pronouncing and dismissing the City of Gordon as a defendant for failing to state a claim. . . .

4. The lower Court erred in its Order by pronouncing and dismissing . . . Spaugh, first, as an individual and then in his official capacity. The Court erroneously claimed against a bundle of case law: "(t)here is no private right of recovery under Section 1983 against Spaugh in his individual capacity."

Brief for appellant at 8 (emphasis in original).

STANDARD OF REVIEW

An appellate court reviews a district court's order granting a motion to dismiss de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).

Dismissal under § 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508 (2011).

Whether the allegations made by a plaintiff set forth claims which are precluded by exemptions under the PSTCA presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).

ANALYSIS

Constitutional Right to Maintain Lawsuit

In his first two assignments of error, Stanko generally alleges that he should have a constitutional right to maintain his lawsuits and a constitutional right for a jury to hear them. But Stanko's assignments do not make specific reference to the bases upon which his various claims were dismissed. Those included bars to the claims as pled under the doctrine of sovereign immunity, failure to comply with the PSTCA, failure to plead individual claims against certain appellees, a violation of the statute of limitations, and failure to state a claim for injunctive relief. All of these determinations were made as matters of law...