City of Kearney v. Johnson ( 1986 )

Grant, J.

The City of Kearney commenced this action in the district court for Buffalo County, Nebraska, to foreclose a lien for delinquent special assessments which had been levied by the city against property owned by the appellee Anna L. Johnson. Johnson filed a demurrer claiming that the same land and the same paving district, No. 395, were the subject of a previous suit (case No. 7203) and that the city had filed a “dismissal with prejudice” as to that cause of action in the previous suit, and, thus, the present case (case No. 7829) is barred by the doctrine of res judicata. The demurrer was overruled, but, subsequently, the district court sustained a motion for summary judgment, on the same basis, filed by Johnson. The court found that the cause of action in case No. 7203 covering the same land had been “dismissed with prejudice by the Plaintiff upon payment of an agreed sum” and that “[dismissal with prejudice indicates an adjudication on the merits ... [and] operates as res judicata concluding the rights of the parties.” The court held, therefore, that Johnson was entitled to judgment as a matter of law. We believe that the district court was in error; for that reason we reverse and remand.

On March 18, 1982, the city filed a petition in the district court for Buffalo County, Nebraska, seeking to foreclose the delinquent special assessments for paving districts Nos. 395 and 448, water district No. 269, and sewer district No. 233 levied against property in the City of Kearney then owned by Schnabel Construction, Inc. That action was docketed as case No. 7203. While all of the districts were described in the petition, paving district No. 395 was not then eligible to be foreclosed. Neb. Rev. Stat. §§ 16-622 and 16-669 (Reissue 1983) require that three payments be delinquent before the city may foreclose, and the city is required to pass and publish an acceleration resolution declaring the entire amount due and owing. Although paving district No. 395 was included in the petition filed in case No. 7203, it had not been included in the acceleration resolution previously adopted by the city council because three payments had not become delinquent. The petition prayed for recovery of $4,998.19, the amount due at the time the petition was filed for all four special assessment districts, including paving district No. 395.

After the suit was filed, Johnson, by then the owner of the property, and the city attorney conducted negotiations. On July 23, 1982, the city received a letter from Johnson’s attorney requesting the exact dollar figure required to pay off the special assessments. The city responded by letter on July 23, 1982, and demanded payment in the amount of $2,993.30. The July 23 letter referred only to paving district No. 448 and made no reference to paving district No. 395. Subsequent to this letter and prior to August 8, 1982, in response to a call to the city attorney’s office by Johnson’s attorney, the city attorney informed Johnson’s attorney that only those assessments relating to paving district No. 448, water district No. 269, and sewer district No. 233 were legally collectible as they were the only assessments which had been included in the acceleration resolution. While this discussion was going on, it is not clear whether anyone realized that paving district No. 395 was also a part of the action then pending.

On September 8, 1982, a call was made to the office of Johnson’s attorney, informing his secretary that the payoff figure for paving district No. 448, water district No. 269, and sewer district No. 233 was $3,036.54 plus $78.60 for court costs, a total of $3,115.14, and that the payoff figure for paving district No. 395, not included in the acceleration resolution, was $1,489.93. This information' was delivered to Johnson’s attorney by memo from his secretary on September 8, 1982. The note specifically pointed out that paving district No. 395 was not part of the foreclosure but that the figure had been provided at the attorney’s request.

On September 14, 1982, the city received a letter from the attorney for Johnson, which included a copy of a check made payable to the clerk of the district court for Buffalo County for the exact amount necessary to pay the assessments in the three delinquent districts as of Monday, September 13, but not enough to pay the assessments for paving district No. 395. On September 20,1982, the City of Kearney filed a document in the district court, entitled “DISMISSAL OF CAUSE OF ACTION NUMBER 2.” In this document the city only stated that it “hereby dismisses with prejudice Cause of Action Number 2” in case No. 7203. Cause of action No. 2 concerned the land in question. No court order was entered concerning this document or dismissing the cause of action.

On March 29,1983, the city filed this action, No. 7829, in the district court, seeking to foreclose the delinquent payments due for special assessments levied for paving district No. 395. The district court ultimately dismissed case No. 7829, and the appeal of the city is taken from that dismissal.

The single issue presented to us is whether the “DISMISSAL OF CAUSE OF ACTION NUMBER 2” filed by the city attorney on September 20,1982, in case No. 7203, bars the city from seeking to collect the delinquencies due on paving district No. 395 in case No. 7829 under the doctrine of res judicata. As we have indicated, we believe that, under the facts in this case, the city is not so barred.

The unilateral action of the city attorney in dismissing a part of case No. 7203 is not res judicata. There is no “judicata.” Res judicata is defined in Black’s Law Dictionary 1174 (5th ed. 1979) as “A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment.” In Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 20, 230 N.W.2d 99, 102 (1975), this court said:

Under the traditional rule of res judicata . . . any rights, facts, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies.

There was no judgment entered in case No. 7203 as to paving district No. 395. The city attorney merely dismissed a cause of action. The action of an attorney in filing a motion for dismissal, with prejudice, of a cause of action does not, of itself, operate as res judicata. Whether the city attorney’s conduct rises to a form of estoppel or some related legal doctrine is not before us on this appeal from the summary judgment entered herein.

This case differs from Simpson v. City of North Platte, 215 Neb. 351, 338 N.W.2d 450 (1983), where there was a court order dismissing the action. It is stated in that case at 353, 338 N.W.2d at 451-52: “On May 1, 1981, pursuant to a dismissal with prejudice filed by the plaintiffs, the U.S. District Court ordered the cause of action dismissed.” In the case at bar there is no such court order.

The judgment of the district court must therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.