State ex rel. Pederson v. Howell

• Citation: 474 N.W.2d 22,239 Neb. 51
• Decision Date: 06 September 1991
• Docket Number: No. 89-046,89-046
• Parties: STATE of Nebraska ex rel. Donald W. PEDERSON et al., Appellees, v. Sam J. HOWELL, Treasurer of Douglas County, Nebraska, Appellee, James Goodbout et al., Appellants.
• Court: Supreme Court of Nebraska

Page 22

474 N.W.2d 22

239 Neb. 51

STATE of Nebraska ex rel. Donald W. PEDERSON et al., Appellees, v. Sam J. HOWELL, Treasurer of Douglas County, Nebraska, Appellee, James Goodbout et al., Appellants.

No. 89-046.

Supreme Court of Nebraska.

Sept. 6, 1991.

Syllabus by the Court

1. Courts: Judgments: Judicial Notice. Where cases are interwoven and interdependent, and the controversy has already been considered and determined in a prior proceeding involving one of the parties now before the court, the court has a right to examine its own records and take judicial notice of its own proceedings and judgment in the prior action.

2. Sanitary and Improvement Districts: Uniform Commercial Code: Warrants: Words and Phrases. Sanitary improvement warrants are investment securities under article 8 of the Uniform Commercial Code in the form of short-term interest-bearing orders payable on a specified date. They are issued by the board of trustees or administrator of a sanitary and improvement district to be paid from funds expected to be received in the future, including, but not limited to, property tax collections, special assessment collections, and proceeds of sale of general obligation bonds. Neb.Rev.Stat. § 31-727(5)(d) (Reissue 1984).

3. Mandamus: Words and Phrases. Mandamus 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 legal right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to do the act in question, and (3) there is no other plain and adequate remedy available in the ordinary course of law.

4. Actions: Abatement. The main purpose of abating a civil action is to prevent unnecessary or vexatious litigation, the theory of our civil procedure being to avoid a multiplicity of suits.

5. Actions: Plea in Abatement. A plea in abatement does not go to the merits of an action, but, by presentation of facts extrinsic to the merits of an action, demonstrates irregularities or circumstances which preclude further prosecution of the action or require suspension of the proceedings.

6. Actions: Plea in Abatement. A defendant may file a plea in abatement when there is another action pending between the same parties, involving the same or substantially the same subject matter, cause of action, and relief.

7. Judgments: Plea in Abatement: Res Judicata. As a general rule, where a judgment in a prior suit would be a bar to a judgment in a second suit brought in the same or another court of concurrent jurisdiction, the plea in abatement should be sustained.

8. Mandamus. Where the issuance of a writ of mandamus would disturb official action or create disorder or confusion, it may be denied, and this is so even when the petitioner has a clear legal right for which mandamus would be an appropriate remedy.

9. Mandamus. To warrant the issuance of a writ of mandamus against an officer to compel the officer to act, the duty to act must (1) be imposed on the officer by law, (2) still exist at the time the writ is applied for, and (3) be clear.

Steven J. Riekes, of Richards, Riekes, Brown & Zabin, P.C., Omaha, for appellants.

Brian J. Muench, of Thompson, Crounse, Pieper and Brumbaugh, P.C., and Dennis E. Martin, of Martin & Martin, Omaha, for appellees Pederson and Westendorfs.

HASTINGS, C.J., and WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

FAHRNBRUCH, Judge.

The trustees of Sanitary and Improvement District No. 272 of Douglas County (S.I.D.) appeal a trial court's (1) overruling of their demurrer, (2) refusal to abate or continue these proceedings until prior pending litigation had been finally determined, and (3) order for issuance of a writ of mandamus requiring the appellants to pay approximately $104,000 plus interest to certain S.I.D. warrant holders.

Because the district court for Douglas County erred in overruling the trustees' demurrer and in refusing to abate these proceedings or to continue them until prior pending litigation had been finally determined, and because a writ of mandamus was prematurely ordered, we reverse the decision and remand this cause to the trial court for further proceedings not inconsistent with this opinion.

At the time of the filing of relator appellees' petition in the district court, the respondents James Goodbout, Rick Cushing, Lori Van Fleet, Patrick J. Burns, and John M. Murphy were the trustees of S.I.D. During the course of the proceedings, Kathleen Sullivan, Greg Jung, and Kurt Wolfert became members of the S.I.D. board of trustees and replaced Cushing, Van Fleet, and Murphy as respondents in this action.

This is the second appeal to this court regarding the construction of an in-ground green space irrigation system installed in three parks within S.I.D., also known as the Willow Wood subdivision, in Douglas County, Nebraska. The first action is reported at S.I.D. No. 272 v. Marquardt, 233 Neb. 39, 443 N.W.2d 877 (1989) (S.I.D. I ). This court takes judicial notice of that case. See First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990) (where cases are interwoven and interdependent, and the controversy has already been considered and determined in a prior proceeding involving one of the parties now before the court, the court has a right to examine its own records and take judicial notice of its own proceedings and judgment in the prior action).

Trial was held in this second action (S.I.D. II ) on the basis of stipulations and exhibits, including depositions. Those stipulations and exhibits reflect that in late 1983, M & A Special Mowing submitted a bid and subsequently received a 2-year contract to water three parks in Willow Wood. According to Francis Sullivan, the former chairman of the S.I.D. board of trustees, he received, free of charge, bushes and approximately $1,200 in lumber for a deck at his home in exchange for informing M & A of a competitor's bid in regard to the watering contract.

In January 1984, M & A proposed an underground sprinkler system to water the Willow Wood parks. The watering had previously been done through hoses and sprinkler heads that were attached to fire hydrants and moved around. According to one contractor, the cost of the sprinkler system was so much lower than the cost of the watering contract that the contractors were able to further mark up the sprinkler system price in exchange for losing the watering contract. Sullivan testified he was to receive $5,000 to help push the proposal through the S.I.D. board. Sullivan did, in fact, receive yard lighting, a trip to Houston, and $400 to $500 in cash. The board accepted the proposal on March 22, 1984. According to Sullivan, another trustee received, free of charge, an underground sprinkler system for his home for remaining silent and approving a later addendum to the contract on September 5, 1984, which was recorded in the board's minutes of March 25, 1985.

Capital improvements to public parks within a sanitary and improvement district require the approval of the municipality or county which has zoning jurisdiction. Neb.Rev.Stat. § 31-740 (Reissue 1984). Additional statutory requirements include notice and public bidding, formal resolution and acceptance of the work, plans, specifications, a certificate of acceptance, and a statement of costs made and filed by the district's engineer. See, Neb.Rev.Stat. §§ 31-741, 31-744, 31-745, 31-747, 31-748, 31-749, and 31-755 (Reissue 1988). In 1982, approval of a similar underground sprinkler system had been denied S.I.D. by the city of Omaha. In order to avoid the requirement of obtaining city approval of the current underground sprinkler system, the proposal was termed a "watering contract" and was to be paid over a 2-year period, similarly to the payments on the original watering contract. By this means, the then S.I.D. board of trustees circumvented the statutory requirements for capital improvements. It was Sullivan's opinion and that of the installing contractor that S.I.D. overpaid for the sprinkler system. Sullivan testified the price was inflated by the inclusion of bribes in the contract price and the avoidance of public bidding. The installing contractor said he could have installed the system more cheaply. The total contract price was $171,833.10. There is evidence that the total contract price should have not exceeded approximately $117,118. There is other evidence that the grass within the parks is a drought-resistant type which does not require any water other than that which occurs by natural rainfall in eastern Nebraska, and that at the time of trial, May 24, 1988, the installed sprinkler system had not been used since the fall of 1985.

To pay for this sprinkler system, warrants were issued to M & A. Warrants are investment securities under article 8 of the Uniform Commercial Code in the form of short-term interest-bearing orders payable on a specified date. They are issued by the board of trustees or administrator of a sanitary and improvement district to be paid from funds expected to be received in the future, including, but not limited to, property tax collections, special assessment collections, and proceeds of sale of general obligation bonds. Neb.Rev.Stat. § 31-727(5)(d) (Reissue 1984). These warrants were sold by the contractor to PaineWebber, Inc., a financial consulting firm, which resold them to various holders, including the relator appellees.

On October 21, 1986, after details of the sprinkler system transactions came to light, S.I.D., through a board of trustees consisting of at least one new member, filed a petition for declaratory judgment (see S.I.D. I ) in the district court for Douglas County. Named as defendants were several purported contractors, the former S.I.D. trustees, and 21 warrant...