Nieveen v. TAX 106 , 311 Neb. 574 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/24/2022 01:05 AM CDT
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574Sandra K. Nieveen, appellant, v. TAX 106,
a Nebraska general partnership,
et al., appellees.
___ N.W.2d ___
Filed May 13, 2022. No. S-21-364.
1. Constitutional Law: Statutes. The constitutionality of statutes and
statutory interpretation present questions of law.
2. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo by
an appellate court, accepting the factual allegations in the complaint as
true and drawing all reasonable inferences of law and fact in favor of the
nonmoving party.
3. Actions: Motions to Dismiss: Pleadings: Appeal and Error. An appel-
late court reviewing a dismissal on the pleadings is not obliged to accept
as true legal conclusions couched as factual allegations or threadbare
recitals of the elements of a cause of action supported by mere conclu-
sory statements.
4. Equity: Quiet Title. A quiet title action sounds in equity.
5. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion independent
of the conclusion reached by the trial court, provided that where credible
evidence is in conflict in a material issue of fact, the appellate court
considers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the facts rather
than another.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Mark T. Bestul, Jennifer Gaughan, and Caitlin Cedfeldt, of
Legal Aid of Nebraska, for appellant.
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574Christian R. Blunk, of Harris & Associates, P.C., L.L.O., for
appellees TAX 106 and Vintage Management, LLC.
Patrick F. Condon, Lancaster County Attorney, and Eric
Synowicki for appellees Lancaster County and Rachel Garver.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellee Attorney General.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ., and O’Gorman, District Judge.
Papik, J.
After Sandra K. Nieveen failed to pay her real property
taxes, the Lancaster County treasurer sold a tax certificate
for the property to a private party. Over 3 years later, when
Nieveen had still not paid the relevant property taxes, the tax
certificate holder applied for and obtained a tax deed to the
property. Nieveen later filed a lawsuit in which she argued
that she should be declared the owner of the property for vari-
ous reasons. The district court denied Nieveen relief, finding
that she did not qualify for an extended redemption period
under Neb. Rev. Stat. § 77-1827 (Reissue 2018) and that the
tax certificate sale process did not violate her constitutional
rights under the U.S. and Nebraska Constitutions. Nieveen now
appeals, but we find no error on the part of the district court
and, thus, affirm.
BACKGROUND
Tax Certificate Sale and Deed Transfer.
Nebraska utilizes tax certificate sales as one method of
recouping delinquent property taxes. See, Neb. Rev. Stat.
§ 77-1801 et seq. (Reissue 2018); Continental Resources v.
Fair, ante p. 184, 971 N.W.2d 313 (2022) (discussing statutes
governing tax certificate sale process). Nieveen did not pay
her 2013 property taxes. As a result, the Lancaster County
treasurer, pursuant to Nebraska’s tax certificate sale statutes,
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574sold a tax certificate for Nieveen’s property to TAX 106 on
March 2, 2015.
Three years after purchasing the tax certificate, TAX 106
began to take the procedural steps required by statute to
request a tax deed from the Lancaster County treasurer for
Nieveen’s property. See § 77-1837. On March 2, 2018, TAX
106 sent a notice by certified mail to Nieveen of its intention
to apply for a tax deed to the property in 3 months’ time if she
did not redeem the property by paying the taxes, interest, and
fees. See § 77-1831.
TAX 106 assigned its interest in the tax certificate to Vintage
Management, LLC (Vintage). In June 2018, after Nieveen
failed to redeem the property within the time period set forth in
TAX 106’s notice, Vintage applied for and received a tax deed
to Nieveen’s property from the Lancaster County treasurer.
Nieveen’s Quiet Title Action.
Nearly a year after the issuance of the tax deed to Vintage,
Nieveen filed this lawsuit in which she sought to quiet title to
the property in her name. The defendants included Lancaster
County and the Lancaster County treasurer (collectively
Lancaster County), as well as Vintage. Nieveen alleged that
TAX 106 obtained the tax certificate by paying $2,390.48 for
delinquent property taxes in 2013 and 2014 and that it paid an
additional $1,405.90 in property taxes for 2015. Nieveen also
alleged that at the time Lancaster County issued the tax deed,
her property was assessed at $61,900, and that there was no
deed of trust securing a mortgage on the property.
Nieveen alleged that the issuance of the tax deed had vio-
lated her rights under the U.S. and Nebraska Constitutions.
Relevant to this appeal, Nieveen alleged that the issuance of
the tax deed had violated her rights under the Due Process
Clauses of the U.S. and Nebraska Constitutions, the Takings
Clauses of the U.S. and Nebraska Constitutions, and the
Excessive Fines Clauses of the U.S. and Nebraska Constitutions.
She also alleged that she had a statutory right to a 5-year
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574redemption period under § 77-1827 because she had a mental
disorder at the time of the tax certificate sale.
Lancaster County and Vintage filed motions to dismiss
in which they contended that Nieveen’s complaint failed to
state a claim upon which relief could be granted. The district
court granted the motions to dismiss as to Nieveen’s constitu-
tional claims.
After the dismissal of Nieveen’s constitutional claims, her
sole remaining claim was that title should be quieted in her
name because she was entitled to an extended redemption
period under § 77-1827. The district court granted summary
judgment to Lancaster County on this claim, because Lancaster
County did not claim an interest in the property at issue. The
district court overruled Vintage’s motion for summary judg-
ment on that claim, finding that there remained genuine ques-
tions of material fact to be determined at trial.
Trial Evidence.
At trial, Nieveen offered evidence in support of her claim
that she had a “mental disorder” for purposes of § 77-1827 at
the time of the tax certificate sale. Nieveen testified that she
had been diagnosed with “major depressive disorder, recurrent,
severe,” and generalized anxiety disorder.
Nieveen testified that she had dealt with depression and
anxiety for 30 years, but that her condition had improved in
2018 after she started taking a new medication. She asserted
that she would have been suffering from symptoms of depres-
sion and anxiety in 2015 because it “was no different than any
other year” prior to beginning her new course of medication
in 2018.
Nieveen testified that she experienced “good days” and
“bad days” with respect to her depression and anxiety. Before
she found an effective medication, she had more bad days
than good days. On a bad day, Nieveen testified that she
would stay at her house and sleep or watch television. During
bad days, she would not pay bills or pick up her mail. She
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Cite as 311 Neb. 574testified that her mail would “build up” to such an extent
that postal workers would “bundle it up and throw it on [her]
back porch or . . . take it back to the post office” and warn
her that if she did not start “picking up” her mail, they would
no ­longer deliver to her house. Nieveen claimed to still have
some mail from 2015 that she had not yet gone through.
Nieveen testified that there was no reason aside from her
mental health that would have prevented her from respond-
ing to the sale of the tax certificate for her property in March
2015. She also testified, however, that sometimes she failed to
pay bills because she did not have the money to pay and that
when she did not have the money, she would ignore the bills.
When asked by her counsel why she failed to pay certain bills,
Nieveen initially responded that she “[j]ust didn’t want to deal
with the situation.” When her counsel followed up to ask if she
failed to pay because of symptoms of her depression and anxi-
ety, Nieveen responded that it was “because [of] depression,
anxiety, I didn’t want to deal with life in general. So, looking at
my bills was depressing, and making me anxious. I just didn’t
want to deal with it, and I didn’t deal with it.”
Nieveen acknowledged that several years prior to trial, she
had received a notice from the city that she needed to make
certain repairs to her house and remove a couch from its front
porch. She admitted that she promptly responded to those
notices and, with the help of her brother-in-law, did what
the city required. She also acknowledged that in 2008, she
received a notice that she had failed to pay her property taxes,
but that her daughter paid the taxes and, as a result, the situa-
tion did not escalate as it did with respect to the tax certificate
sale at issue in this case.
Nieveen admitted that she understood she had to pay her
bills and that there were consequences if she failed to do
so. She also admitted that between 2010 and 2016, neither
a guardian, conservator, nor a power of attorney managed
her affairs.
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Cite as 311 Neb. 574Nieveen’s daughter also testified at trial. Her daughter testi-
fied that she had no reason to doubt Nieveen’s diagnoses and
that she had observed Nieveen to be “[v]ery withdrawn” and
to sleep a lot. Nieveen’s daughter corroborated Nieveen’s tes-
timony that she failed to pay taxes and other bills when due.
When asked why Nieveen did not pay her bills, Nieveen’s
daughter responded, “I’d say [it is a] combination of money
and just like — I don’t — denial of just life, in general of the
way life works . . . .”
Nieveen also offered and the district court received deposi-
tion testimony of Sabrina Hellbusch. Hellbusch is a licensed
advanced practice registered nurse in Nebraska and is board
certified in mental health. Nieveen has been a patient of
Hellbusch since November 2018. Hellbusch confirmed that she
had diagnosed Nieveen with “major depressive disorder, recur-
rent, severe,” and generalized anxiety disorder. Hellbusch testi-
fied that Nieveen’s mental disorder was “severe enough that it
could cause a person to neglect an important activity and could
cause a person to miss important deadlines.” She also testified
that, in her opinion, Nieveen’s symptoms were sufficiently
severe that they explained why her responsibilities have not
always been met. Hellbusch admitted that she was only able to
give opinions concerning Nieveen’s condition from 2018 for-
ward and thus could not give an opinion concerning Nieveen’s
condition in 2015.
In addition to evidence concerning Nieveen’s mental health,
Nieveen offered evidence regarding an attempt to redeem the
property in May 2019. Nieveen and her daughter testified that
her daughter supplied Nieveen with a blank check and that
Nieveen went to the Lancaster County treasurer’s office to
tender payment for the unpaid taxes. They testified that the
treasurer’s office refused to accept the payment.
Vintage did not present any live testimony at trial. It
did offer and the district court received an affidavit of Dr.
Bruce Gutnik. Dr. Gutnik has practiced medicine in psychiatry
and neurology for more than 46 years. Gutnik stated in his
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Cite as 311 Neb. 574affidavit that he had reviewed Nieveen’s medical records and
prescription records and concluded there was “no evidence”
that at the time of the tax certificate sale “Nieveen was unable
to manage her own affairs or understand her then current con-
dition.” He also stated that “[t]here was no evidence that she
could not understand her legal rights or protect her rights.”
District Court Order.
Following trial, the district court issued a written order find-
ing that Nieveen was not entitled to the extended redemption
period under § 77-1827 and dismissing the case. After sum-
marizing the evidence, the district court explained that the
relevant question was whether Nieveen suffered a mental dis-
order at the time of the tax certificate sale in March 2015. The
district court concluded that this court set forth the definition
of “mental disorder” when we said the following:
[A] person with a mental disorder . . . is one who suffers
from a condition of mental derangement which actually
prevents the sufferer from understanding his or her legal
rights or from instituting legal action[,] and . . . a mental
disorder . . . is an incapacity which disqualifies one from
acting for the protection of one’s rights.
Wisner v. Vandelay Investments, 300 Neb. 825, 861, 916 N.W.2d
698, 726 (2018), quoting Maycock v. Hoody, 281 Neb. 767,
799 N.W.2d 322 (2011) (internal quotation marks omitted).
The district court determined that Nieveen had failed to
carry her burden to establish a mental disorder. The district
court stated that although it was clear that Nieveen suffered
from depression and anxiety, “without something more,” it
could not find that her condition was such that she was entitled
to the extended redemption period set forth in § 77-1827.
Nieveen appealed and filed a notice pursuant to Neb. Ct.
R. App. P. § 2-109(E) (rev. 2014) that her appeal challenged
the constitutionality of Nebraska statutes. We moved the case
to our docket. The Attorney General filed a brief on appeal
defending the constitutionality of the challenged statutes.
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574ASSIGNMENTS OF ERROR
Nieveen assigns, renumbered and restated, that the district
court erred by (1) finding she did not suffer from a mental
disorder under § 77-1827 at the time of the tax certificate
sale, (2) dismissing her claim that the issuance of the tax deed
violated her rights under the Due Process Clauses of the U.S.
and Nebraska Constitutions, (3) dismissing her claim that the
issuance of the tax deed violated her rights under the Takings
Clauses of the U.S. and Nebraska Constitutions, and (4) dis-
missing her claim that the issuance of the tax deed violated
her rights under the Excessive Fines Clauses of the U.S. and
Nebraska Constitutions.
STANDARD OF REVIEW
[1] The constitutionality of statutes and statutory interpreta-
tion present questions of law. HBI, L.L.C. v. Barnette, 305 Neb.
457, 941 N.W.2d 158 (2020).
[2,3] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo by an appellate court, accepting
the factual allegations in the complaint as true and drawing
all reasonable inferences of law and fact in favor of the non­
moving party. SID No. 67 of Sarpy Cty. v. State, 309 Neb. 600,
961 N.W.2d 796 (2021). However, an appellate court reviewing
a dismissal on the pleadings is not obliged to accept as true
legal conclusions couched as factual allegations or threadbare
recitals of the elements of a cause of action supported by mere
conclusory statements. Id.[4,5] A quiet title action sounds in equity. Wisner v. Vandelay
Investments, 300 Neb. 825, 916 N.W.2d 698 (2018). On appeal
from an equity action, an appellate court tries factual ques-
tions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion indepen-
dent of the conclusion reached by the trial court, provided
that where credible evidence is in conflict in a material
issue of fact, the appellate court considers and may give
weight to the fact that the trial judge heard and observed the
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another. Id.ANALYSIS
Extended Redemption Period.
Nieveen first argues that the district court erred by finding
that she was not entitled to the 5-year extended redemption
period under § 77-1827. Nieveen contends that if she was
entitled to the extended redemption period, title to the prop-
erty should be quieted in her name, because she attempted to
redeem the property in May 2019 by paying the unpaid taxes.
We will thus consider whether the district court erred in its
determination that Nieveen was not entitled to the extended
redemption period.
Section 77-1827 provides that “[t]he real property of persons
with . . . a mental disorder so sold, or any interest they may
have in real property sold for taxes, may be redeemed at any
time within five years after such sale.” We have held that an
owner of property is entitled to the 5-year redemption period
set forth in § 77-1827 if the owner has a mental disorder at
the time of the sale of the tax certificate. See Wisner, supra.Accordingly, the relevant question in this case is whether
Nieveen had a mental disorder for purposes of § 77-1827 in
March 2015.
Nieveen’s appellate briefs appeared to accept that the gov-
erning definition of mental disorder under § 77-1827 was the
definition applied by the district court and set forth in Wisner.
That definition, quoted in the background section above,
requires a party seeking the extended redemption period to
establish that he or she has a mental health condition, but
it also requires that he or she establish that the condition
prevented the person from understanding his or her legal
rights or taking action to protect those rights. See Wisner,
supra. At oral argument, Nieveen seemed to at least implic-
itly back away from the Wisner formulation, arguing that
Nieveen’s diagnoses alone should entitle her to the extended
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Cite as 311 Neb. 574redemption period. To the extent Nieveen has invited us to
retreat from the definition of mental disorder adopted in Wisner,
we decline.
Our adherence to the definition of mental disorder set forth
in Wisner is informed by the history of § 77-1827 and our
interpretation of similar language in a similar statute. The lan-
guage of § 77-1827 has not always used the term “mental dis-
order.” See § 77-1827 (Reissue 1981). Legislation enacted in
1986 removed the term “insane” and replaced it with “mental
disorder.” See 1986 Neb. Laws, L.B. 1177, § 34. In the con-
text of another statute providing for a tolling of the statute of
limitations if a person was “insane,” Neb. Rev. Stat. § 25-213(Reissue 1985), we said that “the word insane means such
condition of mental derangement which actually prevents the
sufferer from understanding his or her legal rights or institut-
ing legal action” and that insanity, for purposes of that statute,
“results in an incapacity which disqualifies one from act-
ing for the protection of one’s rights.” Sacchi v. Blodig, 215
Neb. 817, 821, 822, 341 N.W.2d 326, 330 (1983) (emphasis
omitted). The same legislation that changed the terminology
of § 77-1827 removed that statute’s reference to the word
“insane” and replaced it with “mental disorder.” 1986 Neb.
Laws, L.B. 1177, § 5. After that amendment, the Nebraska
Court of Appeals held that despite this change, the statute
should have the same meaning. See Vergara v. Lopez-Vasquez,
1 Neb. App. 1141, 510 N.W.2d 550 (1993). The Court of
Appeals relied on language from this court directing that “[a]
mere change of phraseology” will not change the operation
of a statute “unless the intent to make such change is clear
and unmistakable.” Id. at 1146-47, 510 N.W.2d at 553, quot-
ing Shames v. State, 192 Neb. 614, 223 N.W.2d 481 (1974)
(internal quotation marks omitted). In Maycock v. Hoody, 281
Neb. 767, 799 N.W.2d 322 (2011), we affirmed the Court of
Appeals’ interpretation of § 25-213.
All of this history brings us to Wisner v. Vandelay, 300
Neb. 825, 916 N.W.2d 698 (2018), where we held that the
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Cite as 311 Neb. 574same definition that was once used for “insane” and was later
extended to “mental disorder” for purposes of § 25-213 should
also be used for “mental disorder” for purposes of § 77-1827.
Given the similarities between the two statutes and between
the respective amendments to the statutes in 1986, we are not
convinced that holding was erroneous. Furthermore, in the time
since our decision in Wisner, despite making other changes to
the tax certificate sale process, see 2019 Neb. Laws, L.B. 463,
§§ 1 through 8 and 10 (amending §§ 77-1802, 77-1831 through
77-1835, 77-1837, and 77-187.01 (Cum. Supp. 2020); repeal-
ing § 77-1824.01 (Cum. Supp. 2020)), the Legislature has not
amended § 77-1827. As we often say, where a statute has been
judicially construed and that construction has not evoked an
amendment, it will be presumed that the Legislature has acqui-
esced in the court’s determination of the Legislature’s intent.
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
Accordingly, we will analyze Nieveen’s claim that she had a
mental disorder for purposes of § 77-1827 under the definition
adopted in Wisner.
Under the Wisner definition, Nieveen was required to prove
that she had a condition of mental derangement which pre-
vented her either from understanding her legal rights or from
taking action to protect her legal rights. We do not believe
Nieveen proved that her condition was such that she was inca-
pable of understanding her legal rights. Nieveen acknowledged
in testimony that she knew she had to pay her bills and that
there were consequences if she did not.
We likewise are not persuaded that Nieveen proved that
her mental condition in March 2015 prevented her from tak-
ing action to protect her legal rights. Although Nieveen tes-
tified that her mental health was the only thing that would
have prevented her from responding to the sale of the tax
certificate in March 2015, there was also evidence of other
possible reasons. Nieveen testified that sometimes she failed
to pay bills because she lacked money. Nieveen’s daughter
also testified that Nieveen failed to pay bills because of a
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life works.” Other evidence also suggested that despite her
depression and anxiety, Nieveen was capable of protecting her
legal rights. Such capacity is indicated by her testimony that
several years prior to trial, she promptly responded to a notice
from the city about the condition of her house and, with the
help of her brother-in-law, took corrective action. Furthermore,
Nieveen admitted that her affairs were not managed by a
guardian, conservator, or power of attorney.
We also note that Nieveen acknowledged that even prior to
starting a more effective medication in 2018, she had “good
days” and “bad days” with respect to her depression and
anxiety. All of Nieveen’s testimony focused on her claimed
inability to tend to responsibilities during “bad days.” Nieveen
provided no testimony, however, that would have established
what she was experiencing in March 2015 when the tax cer-
tificate was sold. Hellbusch, Nieveen’s expert witness, could
not give an opinion as to Nieveen’s condition in March 2015.
On the other hand, Gutnick, Vintage’s expert witness, stated in
his affidavit that based on his review of her medical records,
he saw no evidence that she was unable to protect her rights at
that time.
After reviewing this evidence de novo, we find that the
district court did not err in determining that Nieveen did not
have a mental disorder for purposes of § 77-1827 and thus
was not entitled to the extended redemption period provided
for in that statute. While we have no reason to question that
Nieveen suffered from depression and anxiety in 2015, we
do not believe she proved that those conditions prevented her
from understanding her legal rights or taking action to protect
them. Our decision should not be understood as a conclusion
that depression and anxiety could never constitute a mental
disorder under § 77-1827.
Procedural Due Process.
Nieveen next argues that the district court erred by dis-
missing her claim that the issuance of the tax deed violated
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Amendment to the U.S. Constitution and article I, § 3, of the
Nebraska Constitution.
The 14th Amendment’s Due Process Clause provides that
States shall not “deprive any person of life, liberty, or property,
without due process of law.” The language in the Nebraska
Constitution is similar. It says, “No person shall be deprived of
life, liberty, or property, without due process of law . . . .” Neb.
Const. art. I, § 3. We have interpreted our state constitutional
provision “coextensive[ly]” with that of the 14th Amendment.
Keller v. City of Fremont, 280 Neb. 788, 791, 790 N.W.2d 711,
713 (2010).
Nieveen alleged in her operative complaint that her rights
to procedural due process were violated in two ways. First,
she asserted that she was provided inadequate notice because,
pursuant to § 77-1831, she received notice of her right to
redeem only 3 months prior to Vintage’s filing an application
for the tax deed. Second, she asserted that she was denied her
right to procedural due process because there was no process
in place to claim a right to the extended redemption period
under § 77-1827.
We can quickly conclude that the district court did not err by
dismissing Nieveen’s claim she was entitled to more advance
notice of Vintage’s intent to apply for a tax deed to her prop-
erty. We very recently rejected essentially the same argument
in Continental Resources v. Fair, ante p. 184, 971 N.W.2d 313(2022). In that case, we held that due process did not require
the delinquent taxpayer to receive notice at the time of the tax
certificate sale and that it was sufficient the delinquent tax-
payer received actual notice that a tax certificate had been sold,
that he had 3 months to redeem the property, and that if the
property owner failed to do so, the tax certificate holder would
apply for a tax deed. Id. Under the reasoning of Continental
Resources, Nieveen cannot show that she was constitutionally
entitled to earlier notice.
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Cite as 311 Neb. 574As for Nieveen’s claim that she was denied procedural
due process because there was no process in place to claim
a right to the extended redemption period under § 77-1827,
it too encounters an immediate hurdle. As the district court
observed in dismissing this claim, Nieveen brought this law-
suit to invalidate the tax deed on the basis of the extended
redemption period and thus it cannot be said that there was
no process by which Nieveen could claim a right to the
extended redemption period. No doubt aware of this difficulty,
Nieveen argues on appeal that due process required that she
be provided with a hearing in which she could claim a right
to the extended redemption period prior to the issuance of the
tax deed.
We are not persuaded that the district court erred by dis-
missing this aspect of Nieveen’s procedural due process claim.
First, it is not clear that Nieveen was constitutionally entitled
to an opportunity for a hearing prior to the issuance of the
tax deed. Procedural due process is flexible and calls for such
protections as the particular situation demands. Manning v.
Dakota Cty. Sch. Dist., 279 Neb. 740, 782 N.W.2d 1 (2010).
And although sometimes government entities must provide an
opportunity for a hearing before a party is deprived of an inter-
est protected by the Due Process Clause, that is not always the
case. See id.Nieveen has not offered any reasons why it was imperative
that an opportunity for a predeprivation hearing be provided
here, and it would seem that at least some of the relevant
factors tilt in the opposite direction. In order to determine
whether an opportunity for predeprivation process is required,
courts consider the “competing interests at stake, along with
the promptness and adequacy of later proceedings.” United
States v. James Daniel Good Real Property, 510 U.S. 43,
53, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993). The compet-
ing interests can be analyzed through the three-part inquiry
set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct.
893, 47 L. Ed. 2d 18 (1976), which requires a balancing of
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erroneous deprivation through the procedures used, and the
government’s interest. See James Daniel Good Real Property,
supra. Here, although Nieveen obviously has a great inter-
est in her property, her operative complaint acknowledged
that even after the issuance of the tax deed, she continued
to reside there. Further, Nieveen can hardly argue that the
process she ultimately received—a full-blown trial before a
district court judge with the power to invalidate the tax deed
issued to Vintage and quiet title in her name—was some-
how inadequate.
In the end, we find it unnecessary to determine whether
Nieveen was constitutionally entitled to the opportunity for a
hearing on the applicability of § 77-1827’s extended redemp-
tion period prior to the issuance of the tax deed. We reach
this conclusion because Nieveen had such an opportunity.
Nieveen’s operative complaint alleges that she received notice
that the tax certificate holder was applying for a tax deed on
March 2, 2018, but Lancaster County did not issue a deed to
Vintage until June 22. Nieveen could have filed a lawsuit prior
to June 22 seeking to enjoin Lancaster County from issuing the
tax deed on the grounds that she was entitled to § 77-1827’s
extended redemption period.
In other words, Nieveen was not denied a hearing prior to
the issuance of the tax deed; she failed to avail herself of the
opportunity for such a hearing. As we have previously held,
the requirements of due process are satisfied if a person has
reasonable notice and an opportunity to be heard appropri-
ate to the nature of the proceeding and the character of the
rights which might be affected by it; if a person has access
to the courts for protection of his or her rights, it cannot be
said that such person was deprived of property without due
process of law. Holste v. Burlington Northern RR. Co., 256
Neb. 713, 592 N.W.2d 894 (1999). Whether there should be
an additional administrative process—permitting a delinquent
property owner, before the issuance of a tax deed, to claim
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574the extended right to redeem under § 77-1827—is a matter
properly addressed to the Legislature.
We find that the district court did not err in dismissing
Nieveen’s procedural due process claims.
Takings.
Nieveen also challenges the district court’s dismissal of her
claim that the issuance of the tax deed violated the Takings
Clauses of the U.S. and Nebraska Constitutions. In support
of these claims, Nieveen alleged in her operative complaint
that by issuing the tax deed to Vintage, Lancaster County
effectuated a taking of her property for a private purpose.
Alternatively, Nieveen alleged in her operative complaint that
even if the issuance of the tax deed was for a public purpose,
she was entitled to just compensation because her equity in
the real property exceeded her tax debt. Again, however, we
recently rejected identical arguments in Continental Resources
v. Fair, ante p. 184, 971 N.W.2d 313 (2022). In light of that
decision, Nieveen cannot show the district court erred by dis-
missing her claims under the Takings Clauses.
Excessive Fines.
Finally, Nieveen argues that the district court erred by dis-
missing her claims based on the Excessive Fines Clauses of the
U.S. and Nebraska Constitutions. Nieveen alleged that because
the issuance of the tax deed resulted in her losing equity in
her property well above her tax debt, it is an excessive fine. In
Continental Resources, supra, we rejected an identical argu-
ment that the issuance of a tax deed violated the Excessive
Fines Clause of the U.S. Constitution. And although no claim
was made under the Excessive Fines Clause of the Nebraska
Constitution in Continental Resources, Nieveen has not made
an argument that we should ascribe a different meaning to
that provision than its essentially identical federal counterpart.
Accordingly, we find that the district court did not err in dis-
missing Nieveen’s claim under the Excessive Fines Clauses.
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NIEVEEN v. TAX 106
Cite as 311 Neb. 574CONCLUSION
We find that the district court did not err when it determined
that Nieveen was not entitled to the extended redemption
period under § 77-1827 or when it dismissed Nieveen’s consti-
tutional claims. Accordingly, we affirm.
Affirmed.
Stacy, J., not participating.