Johnson v. City of Fremont ( 2014 )

Nebraska Advance Sheets
960 287 NEBRASKA REPORTS
Roland Johnson and K aren Johnson, Trustees of the
Roland and K aren Johnson Trust, appellees, v.
City of Fremont, Nebraska, a municipal
corporation, appellant.
___ N.W.2d ___
Filed April 18, 2014. No. S-13-668.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis­
sible 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.
2. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
3. Special Assessments: Municipal Corporations: Appeal and Error. The power
and authority delegated to municipalities to construct improvements and to levy
special assessments for their payment is strictly construed, and every reasonable
doubt as to the extent or limitation of such power and authority and the manner
of exercise thereof is resolved in favor of the taxpayer.
4. Statutes: Legislature: Intent. In order for a court to inquire into a statute’s leg-
islative history, the statute in question must be open to construction, and a statute
is open to construction when its terms require interpretation or may reasonably be
considered ambiguous.
5. Statutes: Appeal and Error. The language of a statute is to be given its plain
and ordinary meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
6. ____: ____. Absent anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
7. ____: ____. When construing a statute, an appellate court must look to the
statute’s purpose and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would defeat it.
8. Statutes. It is not within the province of the courts to read a meaning into a stat-
ute that is not there or to read anything direct and plain out of a statute.
9. ____. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
10. Summary Judgment. Summary judgment is proper where the facts are uncontro-
verted and the moving party is entitled to judgment as a matter of law.
11. Summary Judgment: Final Orders: Appeal and Error. Although the denial of
a motion for summary judgment, standing alone, is not a final, appealable order,
when adverse parties have each moved for summary judgment and the trial court
has sustained one of the motions, the reviewing court obtains jurisdiction over
both motions and may determine the controversy which is the subject of those
Nebraska Advance Sheets
JOHNSON v. CITY OF FREMONT 961
Cite as 287 Neb. 960
motions or make an order specifying the facts which appear without substantial
controversy and direct such further proceedings as it deems just.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Reversed and remanded with direction.
Paul A. Payne for appellant.
Steven G. Ranum and Martin P. Pelster, of Croker, Huck,
Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for
appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
A city relied upon Nebraska’s “gap and extend” law1 to pave
one block of a street and assess the paving costs against abut-
ting property owners. At one end, the new paving adjoined a
paved intersection of two paved streets. At the other end, there
was no connecting paved street. We must decide whether the
paving was authorized under the second sentence of § 18-2001,
which permitted the city to “pave any unpaved street . . .
which intersects a paved street for a distance of not to exceed
one block on either side of such paved street.” Because the
plain language of the statute authorized the paving, we reverse
the judgment of the district court and remand the cause
with direction.
BACKGROUND
The relevant streets are located in the City of Fremont,
Nebraska (City). An excerpt from a map in evidence will best
illustrate the situation, both before and after the project which
is the subject of the instant appeal. We note that the quality of
the image, although limited by its source, still provides a useful
reference tool.
1
See Neb. Rev. Stat. §§ 18-2001 to 18-2005 (Reissue 2012).
Nebraska Advance Sheets
962 287 NEBRASKA REPORTS
We first identify the extent of previous paving of relevant
streets. On the east end of the map, Garden City Road was
previously paved. A portion of Donna Street, from the Garden
City Road intersection to the Jean Drive intersection, was also
already paved. The paved segment of Donna Street ran paral-
lel to a railroad right-of-way (lower right corner). Jean Drive
was entirely paved, including both the Garden City Road
and Donna Street intersections. On the west end of the map,
a portion of Howard Street was previously paved, but this
paving ended well north of the intersection of Howard and
Donna Streets.
Again referring to the map, the contested segment of paving
on Donna Street (which we have marked with X’s) extended
one block west from the intersection of Donna Street and
Jean Drive. Thus, the east end of the segment connected
to the paved intersection of Donna Street and Jean Drive.
On the west end, the new pavement ended where it reached
the unpaved intersection with Howard Street. Thus, at the
­
Nebraska Advance Sheets
JOHNSON v. CITY OF FREMONT 963
Cite as 287 Neb. 960
west end, the newly paved segment does not connect to any
other paving.
Roland Johnson and Karen Johnson, trustees of the Roland
and Karen Johnson Trust (trustees), who initiated the lawsuit
now before us, are the legal titleholders of real estate in the
City. Their property abuts upon and is adjacent to Donna Street.
In August 2009, the mayor and city council of the City
passed a resolution creating “Improvement Unit No. 97.” The
resolution stated that under the authority granted in §§ 18-2001
to 18-2003, the City would pave a portion of Donna Street
beginning at the west margin of Jean Drive. The resolution
stated that Donna Street was an unpaved street and that it
intersected a paved street. The City subsequently passed a reso-
lution which levied a special tax and assessment upon certain
parcels of real estate—including the trustees’ property—to pay
the costs of Improvement Unit No. 97.
The trustees filed a petition on appeal, alleging that the
levy of special assessments was invalid. They claimed that
the street improvement in Improvement Unit No. 97 did not
fill an unpaved gap between paved streets, but, rather, merely
extended the paving on Donna Street. The trustees requested an
order vacating the special assessments levied upon the property
and a refund of the special assessment they had paid. In the
City’s answer, it stated that Donna Street intersects with South
Howard Street one block west of Jean Drive. The City admitted
that Improvement Unit No. 97 extended the paving on Donna
Street and claimed such action was authorized under the unam-
biguous language of § 18-2001.
Upon the parties’ cross-motions for summary judgment, the
district court sustained the trustees’ motion and overruled the
City’s motion. The court observed that the parties argued dif-
ferent interpretations of the same factual scenario. The court
stated that it found Turner v. City of North Platte2 to be com-
pelling, and the court then quoted the following language that
can be found in Iverson v. City of North Platte3: “It is clear
2
Turner v. City of North Platte, 203 Neb. 706, 279 N.W.2d 868 (1979).
3
Iverson v. City of North Platte, 243 Neb. 506, 514, 500 N.W.2d 574, 579
(1993).
Nebraska Advance Sheets
964 287 NEBRASKA REPORTS
that the Legislature intended that the gap and extend procedure
be used only to fill one- or two-block unpaved gaps which
exist between paved streets.” The court stated that Donna
Street extended in the direction of an unpaved area and did not
connect with or fill a gap with a paved intersection. Thus, the
court concluded that the City did not “comport with the limita-
tions and restrictions required by the gap and extend law.” The
court ordered the City to refund to the trustees the assessment
payments they had made.
The City timely appealed, and we moved the case to our
docket under our statutory authority to regulate the caseloads
of the appellate courts of this state.4
ASSIGNMENTS OF ERROR
The City assigns that the district court erred in (1) sustain-
ing the trustees’ motion for summary judgment, (2) finding
the City exceeded the limitations imposed by §§ 18-2001 to
18-2003, (3) finding the assessments against the trustees’ prop-
erties arising from Improvement Unit No. 97 were invalid, (4)
failing to properly define the statutory scheme and interpret
the law and statutes, and (5) using a point not necessary to be
passed on in Iverson v. City of North Platte5 as authority in
this case.
STANDARD OF REVIEW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no gen-
uine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.6
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.7
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
5
Iverson, supra note 3.
6
Harris v. O’Connor, ante p. 182, 842 N.W.2d 50 (2014).
7
Hess v. State, ante p. 559, 843 N.W.2d 648 (2014).
Nebraska Advance Sheets
JOHNSON v. CITY OF FREMONT 965
Cite as 287 Neb. 960
ANALYSIS
[3] At the outset, we recall that the power and authority
delegated to municipalities to construct improvements and to
levy special assessments for their payment is strictly construed,
and every reasonable doubt as to the extent or limitation of
such power and authority and the manner of exercise thereof is
resolved in favor of the taxpayer.8
The crux of this appeal is whether the City exceeded its
authority under Nebraska’s gap and extend law.9 Section
18-2001 provides in part:
Any city or village may, without petition or creating
a street improvement district, . . . pave any portion of
a street otherwise paved so as to make one continuous
paved street, but the portion to be so improved shall not
exceed two blocks, including intersections, or thirteen
hundred and twenty-five feet, whichever is the lesser.
Such city or village may also . . . pave any unpaved street
or alley which intersects a paved street for a distance
of not to exceed one block on either side of such paved
street. The improvements authorized by this section may
be performed upon any portion of a street or any unpaved
street or alley not previously improved to meet or exceed
the minimum standards for pavement set by the city or
village for its paved streets.
The City concedes that the first sentence of § 18-2001 did
not empower it to make the improvement, but contends that
the second sentence provided independent authority to do so.
It argues that under the second sentence, it had the author-
ity to create a paving district which extends a street for up
to one block from an intersecting paved street. According
to the City, “this is the paving of an extension of Donna
Street for one block from where it intersects Jean Drive, a
paved street.”10
The trustees argue that a more narrow interpretation of
§ 18-2001 is warranted and that “[t]he text of the statute, its
8
Iverson, supra note 3.
9
See §§ 18-2001 to 18-2005.
10
Brief for appellant at 10.
Nebraska Advance Sheets
966 287 NEBRASKA REPORTS
legislative history, and the case law interpreting § 18-2001
limit a city’s authority under § 18-2001 to instances where
a city paves a one or two block unpaved gap between paved
streets.”11 The trustees state that “[a]t the very least, an ambi-
guity exists in the statute as to whether the phrase ‘so as to
make one continuous paved street’ applies to limit both the first
and second sentence in § 18-2001, or just the first sentence.”12
We disagree.
[4] First, we determined long ago that the provisions of the
gap and extend law are clear and unambiguous.13 In order for
a court to inquire into a statute’s legislative history, the stat-
ute in question must be open to construction, and a statute is
open to construction when its terms require interpretation or
may reasonably be considered ambiguous.14 Because we have
determined that provisions of the gap and extend law are clear
and unambiguous, they are not open to construction. Thus, we
need not inquire into the statute’s legislative history.
Second, the ordinary principles governing statutory inter-
pretation lead to the same conclusion in the case before us.
Several principles apply, and we discuss each in turn.
[5-7] The plain language of the statute’s second sentence
clearly applies to the City’s extension of Donna Street. The
language of a statute is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.15 In other words, absent any-
thing to the contrary, an appellate court will give statutory lan-
guage its plain and ordinary meaning.16 And when construing
a statute, an appellate court must look to the statute’s purpose
and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would
11
Brief for appellees at 4.
12
Id. at 6-7.
13
Gaughen v. Sloup, 197 Neb. 762, 250 N.W.2d 915 (1977).
14
Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d
600 (2012).
15
Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013).
16
Hess, supra note 7.
Nebraska Advance Sheets
JOHNSON v. CITY OF FREMONT 967
Cite as 287 Neb. 960
defeat it.17 Plainly, the first two sentences of § 18-2001 pro-
vide separate but complementary powers to the City. The first
sentence provides the power to fill a “gap,” that is, an unpaved
area between two paved areas. The second sentence, on the
other hand, empowers a city to make a single-block extension
of paving from an intersecting street. The Legislature used the
word “also” to make it clear that the second sentence provided
an additional power beyond that granted by the first sentence.
Thus, the second sentence provides a very limited power to
“extend” paving without a property owner’s consent. The
complementary powers of the gap and extend law are plainly
evident from the words of the statute. Donna Street intersected
Jean Drive, a paved street. Thus, the statute allowed the City
to pave Donna Street for one block from that intersection. And
that is precisely what the City did.
[8,9] The trustees’ interpretation would effectively elimi-
nate the second sentence of § 18-2001. It is not within the
province of the courts to read a meaning into a statute that
is not there or to read anything direct and plain out of a stat-
ute.18 Thus, a court must attempt to give effect to all parts of a
statute, and if it can be avoided, no word, clause, or sentence
will be rejected as superfluous or meaningless.19 The trust-
ees have not identified any additional power that would be
conferred by the second sentence under their interpretation.
Thus, their interpretation would render the second sentence
superfluous or meaningless. For that reason, we must reject
their interpretation.
The district court’s reliance on Iverson, as urged by the
trustees, was misplaced. The court’s order quotes the follow-
ing language that can be found in Iverson: “It is clear that
the Legislature intended that the gap and extend procedure
be used only to fill one- or two-block unpaved gaps which
exist between paved streets.”20 But the situation presented
17
Id.
18
State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 96 (2013).
19
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
20
Iverson, supra note 3, 243 Neb. at 514, 500 N.W.2d at 579.
Nebraska Advance Sheets
968 287 NEBRASKA REPORTS
in Iverson was entirely different. There, the municipality,
using a “gap-stacking strategy,” attempted to circumvent the
necessity of creating a paving district, which would require
consent of the landowners prior to its initiation.21 Moreover,
the Iverson court recognized that two related paving districts,
not affected by the Iverson decision, had been “created under
the provision of § 18-2001 which allows a city to pave any
unpaved streets which intersect a paved street for a distance
of one block on either side of such paved street.”22 In each
instance, one block of an unpaved street perpendicular to an
intersecting paved street was paved under the same language
of § 18-2001 upon which the City relies. Although the Iverson
court resorted to legislative history, it did so in the context of
an attempt to stack a two-block gap district to further extend
a properly enacted one-block gap district. To the extent that
Iverson speaks to the situation before us, it supports the
City’s position.
[10,11] The district court correctly recognized that there
was no genuine issue of material fact, but because of its
erroneous statutory interpretation, the court granted summary
judgment to the wrong party. Summary judgment is proper
where the facts are uncontroverted and the moving party
is entitled to judgment as a matter of law.23 Both parties
moved for summary judgment. The court should have sus-
tained the City’s motion but instead sustained the trustees’
motion. Although the denial of a motion for summary judg-
ment, standing alone, is not a final, appealable order, when
adverse parties have each moved for summary judgment and
the trial court has sustained one of the motions, the reviewing
court obtains jurisdiction over both motions and may deter-
mine the controversy which is the subject of those motions
or make an order specifying the facts which appear without
substantial controversy and direct such further proceedings as
21
Id.
22
Id. at 512, 500 N.W.2d at 578.
23
McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386
(2011).
Nebraska Advance Sheets
HALL v. COUNTY OF LANCASTER 969
Cite as 287 Neb. 969
it deems just.24 Because there is no issue of fact and the City
is entitled to judgment as a matter of law, we determine the
controversy accordingly.
CONCLUSION
We conclude that the improvement unit mandating the
paving of one block of Donna Street, which intersected Jean
Drive, was plainly authorized by the second sentence of
§ 18-2001. We reverse the judgment of the district court and
remand the cause with direction to enter judgment in favor of
the City.
R eversed and remanded with direction.
24
U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823 N.W.2d 460 (2012).
Jeff Hall, appellee and cross-appellee, v. County
of Lancaster, appellant and cross-appellee,
and Norris School District No. 160,
appellee and cross-appellant.
___ N.W.2d ___
Filed April 18, 2014. No. S-13-724.
1. Tort Claims Act. Whether the allegations made by a plaintiff present a claim that
is precluded by exemptions set forth in the State Tort Claims Act is a question
of law.
2. Political Subdivisions Tort Claims Act: Tort Claims Act. The Political
Subdivisions Tort Claims Act includes a discretionary function exception similar
to that contained in the State Tort Claims Act, and thus, cases construing the State
Tort Claims Act exception are equally applicable to the discretionary function
exception in the Political Subdivisions Tort Claims Act.
3. Political Subdivisions Tort Claims Act: Appeal and Error. An appellate court
has an obligation to reach its conclusion on whether a claim is precluded by
exemptions set forth in the Political Subdivisions Tort Claims Act independent
from the conclusion reached by the trial court.
4. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political
Subdivisions Tort Claims Act provides limited waivers of sovereign immunity
which are subject to statutory exceptions.
5. Pretrial Procedure: Parties. A pretrial order is binding upon the parties.
6. Pretrial Procedure: Pleadings. The issues set out in a pretrial order supplant
those raised in the pleadings.