Echo Financial v. Peachtree Properties ( 2015 )

Decisions of the Nebraska Court of Appeals
898 22 NEBRASKA APPELLATE REPORTS
Echo Financial, appellee, v. Peachtree P roperties,
L.L.C., et al., appellees, and County
of Sarpy, Nebraska, appellant.
___ N.W.2d ___
Filed May 19, 2015. No. A-14-261.
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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken.
5. Final Orders: Foreclosure: Appeal and Error. A decree of foreclosure is a final
order for purposes of appeal.
6. 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 as a matter of law.
7. ____. Summary judgment proceedings do not resolve factual issues, but instead
determine whether there is a material issue of fact in dispute.
8. ____. If a genuine issue of fact exists, summary judgment may not properly
be entered.
9. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
10. Summary Judgment: Evidence: Proof. After the movant for summary judg-
ment makes a prima facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law shifts to the party opposing
the motion.
11. Summary Judgment. In the summary judgment context, a fact is material only
if it would affect the outcome of the case.
12. Property: Liens: Taxes. Special assessments are secondary to the general lien
represented by the tax certificate.
13. Tax Sale: Title. The title conveyed under a tax sale is not derivative, but is a
new title in the nature of an independent grant by the sovereign authority, and
Decisions of the Nebraska Court of Appeals
ECHO FINANCIAL v. PEACHTREE PROPERTIES 899
Cite as 22 Neb. Ct. App. 898
the purchaser takes free from any encumbrances, claims, or equities connected
with the prior title.
14. Judicial Sales: Property: Liens: Foreclosure: Taxes. Tax liens arising sub-
sequent to the sale of a tax certificate, but prior to the commencement of the
foreclosure proceeding, are included in the foreclosure decree and satisfied by the
proceeds of the sheriff’s sale.
15. Liens: Taxes. Taxes levied subsequent to the date of the certificate constitute a
lien superior to the lien of the certificate.
Appeal from the District Court for Sarpy County: David K.
Arterburn, Judge. Affirmed in part, vacated in part, and in part
reversed and remanded with directions.
L. Kenneth Polikov, Sarpy County Attorney, and Bonnie N.
Moore for appellant.
Deana K. Walocha for appellee Echo Financial.
Moore, Chief Judge, and Inbody and Pirtle, Judges.
Inbody, Judge.
INTRODUCTION
The County of Sarpy (Sarpy County) appeals the order of
the Sarpy County District Court granting Echo Financial’s
motion for summary judgment and entering a decree of fore-
closure on Echo Financial’s tax certificate.
STATEMENT OF FACTS
This appeal relates to a parcel of real property in Sarpy
County, Nebraska, legally described as “Lot 62, Villas at
Creekside, a Subdivision in Sarpy County, Nebraska,” herein-
after referred to as the “subject property.” Echo Financial is the
holder of tax sale certificate No. 10281 for the subject prop-
erty. This tax certificate was issued by the Sarpy County treas­
urer to Echo Financial and evidences the purchase of unpaid
property taxes on March 3, 2010, for the 2008 taxes on the
subject property. Echo Financial also is the holder of a lien for
the subsequent general taxes assessed on the subject property
in 2009, 2010, and the first half of 2011.
In June 2013, Echo Financial filed a complaint for foreclo-
sure of the subject property. All parties with interests in the
property were named as defendants, including Sarpy County
Decisions of the Nebraska Court of Appeals
900 22 NEBRASKA APPELLATE REPORTS
and Sanitary and Improvement District (SID) No. 268. Echo
Financial alleged that SID No. 268 held special assessments
on the subject property and that Sarpy County had unpaid
weed control assessments or “weed liens” on the subject prop-
erty. Sarpy County was the only defendant to file an answer
or otherwise make an appearance. In its answer, Sarpy County
admitted that it held weed liens on the subject property and
also affirmatively alleged that it levied taxes on the subject
property for tax years 2011 and 2012 and that pursuant to
Neb. Rev. Stat. § 77-203 (Reissue 2009), those taxes are
considered a first lien on the property taxed, superior to all
other liens.
Echo Financial moved for summary judgment. A hearing was
held on October 28, 2013, with one exhibit, the affidavit of the
owner of Echo Financial, received into evidence. Sarpy County
did not oppose the motion for summary judgment as long as
Sarpy County’s liens, including general taxes, were first liens
superior to all other liens in accordance with § 77-203. When
asked by the court if there was “any disagreement on the issues
here,” the attorney for Echo Financial stated, “I don’t believe
there is.” Although Echo Financial had a proposed order, the
attorney for Echo Financial stated that both attorneys were
going to need to consult to amend the order. The court stated
that it was letting Echo Financial and Sarpy County “work out
an order that protects everybody’s interests on the motion for
summary judgment, but . . . would assume [it] can enter that
order once you get those details worked out.” The court further
sustained a motion for default judgment against the remaining
defendants except Sarpy County.
After Sarpy County and Echo Financial reached an impasse
regarding the priority that the parties’ liens should have in the
foreclosure decree, Sarpy County filed a motion for rehearing
and a hearing was held thereon on January 13, 2014. After
each side’s oral argument before the court, the court provided
Sarpy County with 10 days to respond to Echo Financial’s
draft foreclosure decree and brief which had been previously
filed and to submit an alternative decree of foreclosure. Echo
Financial was given 7 days thereafter to respond.
Decisions of the Nebraska Court of Appeals
ECHO FINANCIAL v. PEACHTREE PROPERTIES 901
Cite as 22 Neb. Ct. App. 898
On February 14, 2014, the district court filed an opin-
ion and order setting forth that Echo Financial’s motion for
summary judgment should be granted and that a decree of
foreclosure should be entered whereby Sarpy County’s lien
against the property for unpaid weed assessments shall be
deemed second to Echo Financial’s lien for general taxes.
Thereafter, on February 25, the court filed the decree of fore-
closure. In the decree of foreclosure, the district court found,
in relevant part, that Echo Financial’s motion for summary
judgment should be granted; Echo Financial holds a valid
first lien against the subject property; Sarpy County holds a
lien for unpaid special assessments (weed liens), which are
junior only to the interests of Echo Financial and SID No.
268; and the subject property is to be sold subject to Sarpy
County’s unpaid real property taxes for the second half of
2011 and 2012. Sarpy County filed its notice of appeal on
March 24, 2014.
ASSIGNMENTS OF ERROR
Sarpy County’s assignments of error, restated and con-
solidated, are that the district court erred in (1) granting Echo
Financial’s motion for summary judgment, (2) ordering that
Sarpy County’s weed liens were junior to the interests of Echo
Financial and SID No. 268, and (3) failing to find that Sarpy
County has general tax liens for the second half of 2011 and
2012 and ordering the subject property to be sold subject to
Sarpy County’s lien for unpaid real property taxes instead of
ordering that these general tax liens were to be paid from the
proceeds of the sheriff’s sale.
STANDARD OF REVIEW
[1,2] 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 ulti-
mate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
Harris v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014).
In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against
Decisions of the Nebraska Court of Appeals
902 22 NEBRASKA APPELLATE REPORTS
whom the judgment was granted, and gives that party the
benefit of all reasonable inferences deducible from the evi-
dence. Id.
ANALYSIS
Jurisdiction.
Before addressing the merits of Sarpy County’s appeal, we
address Echo Financial’s argument that Sarpy County’s notice
of appeal was not timely filed and, consequently, that we lack
jurisdiction over this appeal.
[3,4] It is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it. Huskey v. Huskey,
289 Neb. 439, 855 N.W.2d 377 (2014). For an appellate court
to acquire jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken. Kelliher v.
Soundy, 288 Neb. 898, 852 N.W.2d 718 (2014).
[5] A decree of foreclosure is a final order for purposes of
appeal. See Schuyler Building & Loan Ass’n v. Fulmer, 61
Neb. 68, 84 N.W. 609 (1900). See, also, Leseberg v. Meints,
224 Neb. 533, 399 N.W.2d 784 (1987). The decree of foreclo-
sure in the instant case was filed on February 25, 2014. Sarpy
County timely filed its notice of appeal on March 24. Pursuant
to Neb. Rev. Stat. § 25-1912 (Reissue 2008), in order to vest
an appellate court with jurisdiction, a party must file an appeal
within 30 days of the entry of a judgment, decree, or final
order. Because Sarpy County’s appeal was filed within 30 days
of the decree of foreclosure, this court has jurisdiction over
this appeal.
Summary Judgment.
Sarpy County’s first assignment of error is that the district
court erred in granting Echo Financial’s motion for summary
judgment.
[6-8] 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 ulti-
mate inferences that may be drawn from those facts and that
the moving party is entitled to as a matter of law. Harris
v. O’Connor, supra. Summary judgment proceedings do not
Decisions of the Nebraska Court of Appeals
ECHO FINANCIAL v. PEACHTREE PROPERTIES 903
Cite as 22 Neb. Ct. App. 898
resolve factual issues, but instead determine whether there
is a material issue of fact in dispute. Peterson v. Homesite
Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013). If a
genuine issue of fact exists, summary judgment may not prop-
erly be entered. Id.
[9-11] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the mov-
ing party is entitled to judgment as a matter of law. Id. After
the movant for summary judgment makes a prima facie case
by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law shifts to the party opposing the motion. Id. In the summary
judgment context, a fact is material only if it would affect the
outcome of the case. Id.
Pursuant to Neb. Rev. Stat. § 77-1908 (Reissue 2009), the
tax sale certificate in foreclosure proceedings under Neb. Rev.
Stat. § 77-1902 (Cum. Supp. 2012) shall be presumptive evi-
dence of all the facts necessary to entitle the plaintiff to be paid
for redemption from the tax sale. A copy of tax certificate No.
10281 was attached to the complaint filed in this case. Section
77-203 provides that property taxes are a first lien on the prop-
erty taxed.
Since Echo Financial adduced presumptive and uncontra-
dicted evidence that it owned tax sale certificate No. 10281
and was presumptively entitled to be paid for redemption from
the tax sale, the district court properly granted Echo Financial’s
motion for summary judgment. Although we have determined
that the district court properly granted summary judgment
in favor of Echo Financial, we also address Sarpy County’s
assignments of error regarding specific portions of the district
court’s order.
Priority of Sarpy County’s Tax Liens.
Sarpy County contends that the court erred in finding that
Sarpy County’s weed lien was junior to the interests of Echo
Financial and SID No. 268. Sarpy County argues that pursuant
Decisions of the Nebraska Court of Appeals
904 22 NEBRASKA APPELLATE REPORTS
to Neb. Rev. Stat. § 77-209 (Reissue 2009), its special assess-
ments are junior only to the first lien of general taxes.
[12] Weed liens are a type of special assessment. See Neb.
Rev. Stat. § 77-1701 (Reissue 2009) (“[i]n any county in which
a city of the metropolitan class is located, all statements of
taxes shall also include notice that special assessments for
cutting weeds, removing litter, and demolishing buildings are
due”). Section 77-209 provides that “[a]ll special assessments,
regularly assessed and levied as provided by law, shall be a
lien on the real estate on which assessed, and shall take prior-
ity over all other encumbrances and liens thereon except the
first lien of general taxes under section 77-203.” Pursuant to
§ 77-203, property tax liens are first liens “until paid or extin-
guished as provided by law.” Special assessments are second-
ary to the general lien represented by the tax certificate. INA
Group v. Young, 271 Neb. 956, 716 N.W.2d 733 (2006). Thus,
the district court did not err in finding that Sarpy County’s
weed liens were junior to Echo Financial’s general lien repre-
sented by its tax certificate.
Further, Sarpy County’s weed liens are also junior to the
interests of SID No. 268. Pursuant to § 77-1902 (Reissue
2009):
When land has been sold for delinquent taxes and
a tax sale certificate or tax deed has been issued, the
holder of such tax sale certificate or tax deed may,
instead of demanding a deed or, if a deed has been
issued, by surrendering the same in court, proceed in the
district court of the county in which the land is situated
to foreclose the lien for taxes represented by the tax
sale certificate or tax deed and all subsequent tax liens
thereon, excluding any lien on real estate for special
assessments levied by any sanitary and improvement
district which real estate has not been previously offered
for sale by the county treas­ urer, in the same manner
and with like effect as in the foreclosure of a real estate
mortgage, except as otherwise specifically provided by
sections 77-1903 to 77-1917. Such action shall only be
brought within six months after the expiration of three
Decisions of the Nebraska Court of Appeals
ECHO FINANCIAL v. PEACHTREE PROPERTIES 905
Cite as 22 Neb. Ct. App. 898
years from the date of sale of any real estate for taxes or
special assessments.
“[T]he portion of § 77-1902 added in 1996 . . . which
effectively excludes special assessments levied by sanitary
improvement districts from the free and clear effects of judi-
cial foreclosure, is an exception to the common law. See 1996
Neb. Laws, L.B. 1321.” SID No. 424 v. Tristar Mgmt., 288
Neb. 425, 437, 850 N.W.2d 745, 753 (2014). For complete-
ness, we note that in 2011, the Legislature made a statutory
amendment to provide that the sheriff’s deed which results
from the judicial foreclosure proceeding passes title to the
purchaser free and clear of all liens and interests of all persons
who were parties to the proceedings, “excluding any lien on
real estate for special assessments levied by any sanitary and
improvement district which special assessments have not been
previously offered for sale by the county treasurer.” See Neb.
Rev. Stat. § 77-1914 (Cum. Supp. 2014); however, this sub-
stantive change is not applicable to the tax deed issued in this
case. See Neb. Rev. Stat. § 77-1837.01(2) (Cum. Supp. 2014)
(“[t]ax sale certificates sold and issued between January 1,
2010, and December 31, 2014, shall be governed by the laws
and statutes that were in effect on December 31, 2009, with
regard to all matters relating to tax deed proceedings, includ-
ing noticing and application, and foreclosure proceedings”).
Thus, for the foregoing reasons, the district court properly
found that Sarpy County’s weed liens were junior to both the
interests of Echo Financial and SID No. 268.
Ordering Sale Subject to Sarpy
County’s General Tax Liens.
Sarpy County also assigns as error that the district court
erred when it ordered that the subject property was to be sold
subject to the lien of Sarpy County for the general taxes for
the second half of 2011 and 2012. We note that at oral argu-
ments, Echo Financial stated that it was relying upon Neb.
Rev. Stat. §§ 77-1806 and 77-1818 (Reissue 2009) in support
of its claim that Sarpy County’s liens could not be foreclosed
upon in this action. However, these statutes relate to actions
Decisions of the Nebraska Court of Appeals
906 22 NEBRASKA APPELLATE REPORTS
where the county is foreclosing upon its tax lien by the sale
of real property. Echo Financial also referenced Neb. Rev.
Stat. § 77-1901 (Cum. Supp. 2012) in its arguments. This sec-
tion relates to actions where the county board enters an order
directing the county attorney to foreclose liens. Of course, in
the instant case, Echo Financial, not Sarpy County, has brought
the foreclosure action. Thus, these statutes are not relevant to
our analysis.
[13] The title conveyed under a tax sale is not derivative,
but is a new title in the nature of an independent grant by
the sovereign authority, and the purchaser takes free from
any encumbrances, claims, or equities connected with the
prior title. INA Group v. Young, 271 Neb. 956, 716 N.W.2d
733 (2006). See Polenz v. City of Ravenna, 145 Neb. 845, 18
N.W.2d 510 (1945). Echo Financial argues that Sarpy County
must apply for a tax sale certificate pursuant to Neb. Rev. Stat.
§ 77-1913 (Reissue 2009) in order to collect any liens that
remain unpaid after the sheriff’s sale. Section 77-1913 provides
a procedure for what to do with “subsequent taxes levied and
assessed against the property under foreclosure.” However,
“‘Subsequent taxes’ within the meaning of § 77-1913 do not
include taxes, whether general taxes or special assessments,
that were assessed and levied prior to the commencement of
the foreclosure proceeding.” INA Group v. Young, 271 Neb. at
968, 716 N.W.2d at 742.
[14] Since Sarpy County’s tax liens arose subsequent to the
sale of the tax certificate to Echo Financial in March 2010
and prior to the commencement of the foreclosure proceedings
in June 2013, § 77-1913 is not applicable to the instant case.
“Tax liens arising subsequent to the sale of a tax certificate,
but prior to the commencement of the foreclosure proceed-
ing, are included in the foreclosure decree and satisfied by
the proceeds of the sheriff’s sale. See § 77-1902.” INA Group
v. Young, 271 Neb. at 967, 716 N.W.2d at 742. Thus, Sarpy
County’s liens for the general taxes for the second half of
2011 and 2012 are to be satisfied by the proceeds of the sher-
iff’s sale.
[15] Additionally, taxes levied subsequent to the date of
the certificate constitute a lien superior to the lien of the
Decisions of the Nebraska Court of Appeals
STATE v. MINNICK 907
Cite as 22 Neb. Ct. App. 907
certificate. Medland v. Van Etten, 75 Neb. 794, 106 N.W. 1022
(1906). See, also, Coffin v. Old Line Life Ins. Co., 138 Neb.
857, 295 N.W. 884 (1941). Tax liens
“‘take priority in the reverse order of other liens. As to all
other liens the first in order of time is prima facie superior
to those of a later date. In the case of tax liens, however,
the “last shall be first and the first last.” The general and
universal rule is that in proceedings in rem to enforce
the payment of taxes the last tax levied and sought to be
enforced is superior and paramount to the lien of all other
taxes, claims, or titles.’ . . .” 3 Cooley, Taxation (4th Ed.)
sec. 1242.
Coffin v. Old Line Life Ins. Co., 138 Neb. at 861, 295
N.W. at 887 (emphasis omitted). Consequently, not only are
Sarpy County’s general tax liens for the second half of 2011
and 2012 to be paid from the proceeds of the foreclosure
sale, but Sarpy County’s liens also take priority over Echo
Financial’s liens.
CONCLUSION
We find that the district court properly granted summary
judgment in favor of Echo Financial; however, we reverse
the decision of the district court on errors contained in the
foreclosure deed, vacate the foreclosure deed, and remand the
cause for issuance of a new foreclosure deed consistent with
this opinion.
Affirmed in part, vacated in part, and in part
reversed and remanded with directions.
State of Nebraska, appellee, v.
David H. Minnick, appellant.
___ N.W.2d ___
Filed May 19, 2015. No. A-14-650.
1. Criminal Law: Sentences: Time. In the absence of statute, when a valid sen-
tence has been put into execution by commitment of a prisoner, the court has
no authority to set aside, modify, amend, or revise the sentence, either during or
after the term or session of court at which the sentence was imposed. Any attempt