State ex rel. Lanman v. Board
| Decision Date | 03 April 2009 |
| Docket Number | No. S-07-1201.,S-07-1201. |
| Parties | STATE of Nebraska ex rel. Glenn R. LANMAN and Teresa J. Lanman, appellants, v. BOARD OF COUNTY COMMISSIONERS OF DAWSON COUNTY, Nebraska, et al., appellees, and Sanitary and Improvement District No. 1 of Gosper County and Dawson County, Nebraska, intervenor-appellee. |
| Court | Nebraska Supreme Court |
Terry K. Barber and Joshua D. Barber, of Barber & Barber, P.C., L.L.O., Lincoln, for appellants.
Kurt R. McBride, Chief Deputy Dawson County Attorney, for appellees.
Robert J. Huck and David J. Skalka, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., Omaha, for intervenor-appellee.
The principal issue in this appeal is one of statutory interpretation. Neb.Rev.Stat. § 17-201 (Reissue 2007) permits the incorporation of a village upon the petition of "a majority of the taxable inhabitants of any town or village, not incorporated under any laws of this state." The issue presented here is whether this statute permits the incorporation of a village lying entirely within the boundaries of an existing sanitary and improvement district.
In 2003, a petition was filed in the district court for Gosper County seeking the formation of Sanitary and Improvement District No. 1 of Gosper County and Dawson County (SID No. 1) pursuant to Neb. Rev.Stat. §§ 31-727 to 31-793 (Reissue 1998 & Supp.2003). Several persons, including Glenn R. Lanman and Teresa J. Lanman, objected to the formation of the district, but their objections were overruled by the court. On February 10, 2005, the court entered an order granting the petition and declaring SID No. 1 to be "a public corporation of this state." The order stated that SID No. 1 would "encompass all of the property abutting Johnson Lake" and the "centerline of the paved road which surrounds the lake (Johnson Lake Drive)." In an appeal brought by the objectors, we affirmed this order.1 Additional facts pertinent to the formation of SID No. 1 are set forth in that opinion. Briefly summarized, the area around Johnson Lake was experiencing increased problems with wastewater treatment and disposal, and concerned residents determined that "an SID would be the best governing vehicle to facilitate the development and operation of a centralized wastewater system."2
After the issuance of our opinion affirming the formation of SID No. 1, the Lanmans and some of their neighbors who lived along Johnson Lake submitted a signed petition to the Board of County Commissioners of Dawson County (Board) seeking incorporation of "The Village of Johnson Lake" pursuant to § 17-201. The land described in the plat of the proposed village was situated entirely within the boundaries of SID No. 1. Acting on the advice of the Dawson County Attorney, the Board denied the petition because the proposed village was situated entirely within an already incorporated area. The Lanmans then commenced a mandamus action against the Board and the individual commissioners, alleging that upon receipt of the petition, they had a ministerial duty pursuant to § 17-201 to declare the village incorporated and declare its metes and bounds. SID No. 1 was granted leave to intervene and filed an answer in intervention in which it asserted various defenses, including an allegation that the proposed village could not be lawfully incorporated because it was entirely within the boundaries of SID No. 1, a municipal corporation.
Subsequently, the Board, the commissioners, and SID No. 1 filed a joint motion for summary judgment. After conducting an evidentiary hearing, the district court granted the motion. It reasoned that the Board's denial of the petition was correct as a matter of law because the petition failed to comply with the signature requirements of § 17-201 and because the village could not legally be incorporated within the boundaries of SID No. 1. The Lanmans filed this timely appeal, which we moved to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.3
The Lanmans assign, restated, consolidated, and renumbered, that the district court erred in (1) allowing SID No. 1 to intervene, (2) determining that a village may not be incorporated within the boundaries of a sanitary and improvement district, (3) determining that the petition seeking incorporation of the village did not meet the statutory requirements, and (4) sustaining the Board's objection to an exhibit at the evidentiary hearing.
Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.4 In reviewing summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.5
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.6
We first address the issue of whether the district court erred in giving SID No. 1 leave to intervene in the mandamus action. The Lanmans argue both that SID No. 1 lacked a direct and legal interest necessary for intervention and that the intervention was procedurally improper.
Intervention in Nebraska civil actions is generally governed by Neb.Rev. Stat. §§ 25-328 to 25-330 (Reissue 2008). Section 25-328 provides:
Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences.
As a prerequisite to intervention under this statute, the intervenor must have a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of the judgment which may be rendered in the action.7 In determining whether such a direct and legal interest exists, it does not matter whether the interests are already adequately represented by another.8 Whether a party has the right to intervene in a proceeding is a question of law.9 SID No. 1 alleged the right to intervene because formation of the village would improperly detach and remove property from within SID No. 1's boundaries and tax base without compliance with the statutory requirements for detachment. For purposes of determining the right to intervene, we must assume that these allegations are true.10 We conclude that SID No. 1 alleged interests sufficient to permit it to intervene in the mandamus action.
Procedurally, SID No. 1 sought leave to intervene by motion, which is inconsistent with the language in § 25-330 providing that "intervention shall be by complaint." Under a prior version of the statute requiring that intervention be by "petition," we treated a motion setting forth the claimed basis for intervention as a petition for intervention.11 The motion filed by SID No. 1 set forth its claimed basis for intervening in the case, and after the motion was sustained, SID No. 1 filed an answer in intervention. This answer was a proper pleading, as SID No. 1 intervened on behalf of the respondents in resisting the claim seeking a writ of mandamus. We have stated that intervention statutes are to be liberally construed.12 Applying such construction here, we find no procedural bar to intervention and conclude that the district court did not err in granting SID No. 1 leave to intervene.
The Lanmans, as relators, sought a writ of mandamus compelling the Board to declare the incorporation of the village of Johnson Lake pursuant to their petition. Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary course of law.13 In a mandamus action, the relator has the burden of proof and must show clearly and conclusively that such party is entitled to the particular remedy sought and that the respondent is legally obligated to act.14
Whether the Board had a legal obligation to act in this case must be determined from the language of § 17-201, which provides in relevant part:
Whenever a majority of the taxable inhabitants of any town or village, not incorporated under any laws of this state, shall present a petition to the county board of the county in which the petitioners reside, praying that they may be incorporated as a village and designating the name they wish to assume and the metes and bounds of the proposed village, and such county board or majority of the members thereof shall be satisfied that a majority of the taxable inhabitants of the proposed village have signed such petition and that inhabitants to the number of one hundred or more are actual residents of the territory described in the petition, the board shall declare the proposed village incorporated, enter the order of incorporation upon its records, and designate the metes and bounds thereof. Thereafter...
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