Salem Grain Co. v. City of Falls City

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/31/2019 12:07 AM CDT
- 548 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
Salem Grain Company, Inc., a Nebraska
corporation, et al., appellants, v.
City of Falls City et al., appellees.
___ N.W.2d ___
Filed March 22, 2019. No. S-17-277.
1. Declaratory Judgments: Appeal and Error. In an appeal from a
declaratory judgment, an appellate court, regarding questions of law, has
an obligation to reach its conclusion independently of the conclusion
reached by the trial court.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Actions: Equity: Public Meetings: Appeal and Error. An appellate
court reviews actions for relief under the Open Meetings Act in equity
because the relief sought is in the nature of a declaration that action
taken in violation of the act is void or voidable.
4. 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. But when credible evidence
is in conflict on material issues of fact, an appellate court may give
weight to the fact the trial court observed the witnesses and accepted
one version of the facts over another.
5. Statutes. Statutes relating to the same subject, though enacted at differ-
ent times, are in pari materia and should be construed together.
6. Statutes: Legislature: Intent. Statutes relating to the same subject
should be construed together to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and sensible.
7. ____: ____: ____. When two statutes are capable of coexistence, it is
the duty of the courts, absent a clearly expressed legislative intention to
- 549 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
the contrary, to regard each as effective, and to harmonize overlapping
statutes so long as each reaches some distinct cases.
8. Statutes. Where it is possible to harmonize apparently conflicting stat-
utes, a court should do so.
9. Actions: Bonds: Contracts: Statutes: Presumptions: Time. Construed
together, Neb. Rev. Stat. §§ 18-2129 and 18-2142.01 (Reissue 2012)
effectively provide that any suit, action, or proceeding brought outside
the 30-day period established in § 18-2142.01 will be subject to the con-
clusive presumptions required by §§ 18-2129 and 18-2142.01, as long
as the action is one challenging the validity or enforceability of a rede-
velopment bond or contract and the bond or contract recites in substance
the language required by the statutes.
10. Statutes: Legislature: Intent. In the absence of clear legislative intent,
a construction of a statute will not be adopted which has the effect of
nullifying or repealing another statute.
11. Statutes. It is not within the province of the courts to read a meaning
into a statute which is not there.
12. Pleadings. An affirmative defense raises a new matter which, assum-
ing the allegations in the petition or complaint to be true, constitutes
a defense to the merits of a claim asserted in the petition. An affirma-
tive defense generally avoids, rather than negates, the plaintiff’s prima
facie case.
13. Statutes: Presumptions: Limitations of Actions. A statute providing
a conclusive presumption is very different from a statute of limitations,
and the conclusive presumptions under Neb. Rev. Stat. §§ 18-2129 and
18-2142.01 (Reissue 2012) are not statutes of limitation.
14. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
15. Judges: Evidence: Appeal and Error. The exercise of judicial discre-
tion is implicit in determining the relevance of evidence, and an appel-
late court will not reverse a trial court’s decision regarding relevance
absent an abuse of discretion.
16. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
17. Evidence: Words and Phrases. Relevant evidence means evidence
having any tendency to make the existence of any fact that is of conse-
quence to the determination of the action more probable or less probable
than it would be without the evidence.
- 550 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
Appeal from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge. Affirmed.
Stephen D. Mossman, Ryan K. McIntosh, and J.L. Spray, of
Mattson Ricketts Law Firm, for appellants.
John M. Guthery, Jeanette Stull, and Derek A. Aldridge, of
Perry, Guthery, Haase & Gessford, P.C., L.L.O., for appellee
Community Redevelopment Authority of the City of Falls City.
Terry C. Dougherty, Kari A.F. Scheer, and Audrey R. Svane,
of Woods & Aitken, L.L.P., for appellee Consolidated Grain
and Barge Co.
Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.P., for
appellee City of Falls City.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
Stacy, J.
This is the latest in a series of appeals involving liti-
gation over a redevelopment project in the City of Falls
City, Nebraska.1 In this case, the plaintiffs filed suit seeking
a declaratory judgment that the redevelopment project was
not planned or adopted in accordance with the Community
Development Law2 and requesting a permanent injunction to
prevent the project from proceeding. Most of the plaintiffs’
claims were dismissed on summary judgment, and the remain-
ing claims were dismissed after a bench trial. The plaintiffs
appeal. Although our reasoning differs from that of the district
court, we affirm.
1
See, Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682,
900 N.W.2d 909 (2017); Frederick v. City of Falls City, 295 Neb. 795,
890 N.W.2d 498 (2017); Frederick v. City of Falls City, 289 Neb. 864, 857
N.W.2d 569 (2015).
2
Neb. Rev. Stat. §§ 18-2101 to 18-2144 (Reissue 2012).
- 551 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
I. BACKGROUND
1. R edevelopment Project
Falls City is a community located in Richardson County,
Nebraska. Pursuant to the Community Development Law,
Falls City created the five-member Falls City Community
Redevelopment Authority (the Authority) to redevelop blighted
or substandard areas within Falls City.3
In 2012, Consolidated Grain and Barge Co. (Consolidated
Grain) proposed a redevelopment project that involved con-
structing a new commercial grain receiving, storage, and ship-
ping facility in Falls City using tax increment financing (TIF).
The owner of another commercial grain facility in the area,
Salem Grain Company, Inc. (Salem Grain), opposed the rede-
velopment project.
During the summer and fall of 2012, land for the redevel-
opment project was annexed by Falls City, a zoning change
was recommended and approved for the annexed land, a study
was conducted upon which the land was declared blighted
and substandard, a cost-benefit analysis was conducted, and
a redevelopment plan was prepared. Ultimately, in September
and October 2012, the redevelopment project was approved at
separate public meetings of the Authority, the city council of
Falls City, and the planning commission of Falls City.
On November 10, 2012, the Authority and Consolidated
Grain formally entered into a redevelopment contract.
Summarized, the redevelopment contract required Consolidated
Grain to acquire the land for the project and construct the grain
facility, and in exchange, the Authority agreed to enter into
and utilize TIF indebtedness to fund a portion of the project.
Thereafter, a TIF bond in the amount of $3,710,000 was issued
by the Authority and sold to Consolidated Grain. The bond
funds were disbursed to Consolidated Grain pursuant to the
redevelopment contract. Roughly 1 year later, Consolidated
3
See § 18-2101.01.
- 552 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
Grain completed construction of the commercial grain facility
and began business operations.
2. Lawsuit
(a) Original Complaint
On October 24, 2012, approximately 2 weeks before the
redevelopment contract was formally entered into, Salem Grain
and two residents of Falls City (collectively Salem Grain) filed
a lawsuit against the City of Falls City, the Authority, and
Consolidated Grain in the district court for Richardson County,
Nebraska. The complaint sought declaratory and injunctive
relief and was styled as 12 separate causes of action.
The first 11 causes of action sought declarations that the
redevelopment project had not been planned and adopted in
accordance with the Community Development Law, alleging
specifically that (1) the blighted and substandard study was
insufficient, (2) the redevelopment plan did not conform to
a “‘general plan’” for the development of Falls City, (3) the
Authority acted without a quorum at several key meetings, (4)
the cost-benefit analysis was insufficient, (5) it was improper
to include TIF in the redevelopment plan, (6) the redevelop-
ment plan was improperly adopted by the city council, (7) the
redevelopment plan was improperly adopted by the Authority,
(8) the city council impermissibly renamed a portion of the
platted land included in the redevelopment project, (9) Falls
City provided an insufficient public comment period regarding
its plan to finance the redevelopment project using community
development block grant program funds, (10) the Authority’s
adoption of the resolution approving TIF was null and void,
and (11) the land for the redevelopment project was improperly
annexed. Salem Grain’s 12th cause of action sought to equita-
bly estop the city council from asserting that the redevelop-
ment project was not feasible without TIF funding.
The prayer for relief sought (1) declarations that the rede-
velopment project was not properly planned or adopted for all
of the reasons alleged in the various causes of action; (2) a
- 553 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
declaration that because the project was not properly adopted,
the “Redevelopment Contract, and any bonds issued thereto,
are null and void”; and (3) a permanent injunction blocking the
redevelopment project from proceeding.
Falls City, the Authority, and Consolidated Grain (collec-
tively the defendants) moved to dismiss the original complaint
for reasons that are not relevant to the issues on appeal. The
district court granted the motion to dismiss, and Salem Grain
was given leave to file an amended complaint.
(b) Amended Complaint
The amended complaint was filed January 22, 2013, and
is the operative complaint in this action. Like the original
complaint, the amended complaint was styled as 12 causes of
action. The first 11 sought declarations that the redevelopment
project had not been planned and adopted in accordance with
the Community Development Law for generally the same rea-
sons alleged in the original complaint.
The 12th cause of action alleged the Authority held two
meetings which violated Nebraska’s Open Meetings Act 4
(NOMA), and it sought to have the actions taken during those
meetings declared void.5 The first meeting allegedly occurred
on August 15, 2012, when three members of the Authority
attended a community dinner that included the mayor, mem-
bers of the city council, community business leaders, and
representatives from Consolidated Grain. The second meeting
allegedly occurred on November 9, in the context of email
communications between members of the Authority.
Like the original complaint, the amended complaint sought
(1) declarations that the redevelopment project was not prop-
erly adopted for all of the reasons alleged in the various
causes of action; (2) a declaration that because the project was
not properly adopted the “Redevelopment Contract, and any
bonds issued thereto, are null and void”; and (3) a permanent
4
Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 2008 & Supp. 2011).
5
See § 84-1414.
- 554 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
injunction blocking the redevelopment project from proceed-
ing. In addition, the amended complaint sought a declaration
that any formal action taken by the Authority in violation of
NOMA was void.6
After the amended complaint was filed, the court dismissed
the 11th cause of action for reasons that are not relevant to
the issues on appeal. Thereafter, answers were filed and the
defend­ants proceeded to defend the amended complaint on
the merits. Due to the procedural complexity of this case, we
discuss only that which relates to the issues raised on appeal.
(c) Completion of Redevelopment Project
While the lawsuit was pending, the redevelopment project
was completed. It is undisputed that the project was completed
in September 2013 and that Consolidated Grain has been oper-
ating the commercial grain receiving, storage, and shipping
facility since that time.
(d) Motion to File Second
Amended Complaint
On December 17, 2015, nearly 2 years after completion of
the redevelopment project, Salem Grain tried unsuccessfully
to further amend its complaint. The proposed second amended
complaint sought to add claims of “improper economic devel-
opment” and “unjust enrichment” resulting from the TIF funds
provided to Consolidated Grain. The proposed second amended
complaint also sought to alter the nature of the relief being
requested; rather than seeking injunctive relief to prevent the
redevelopment project from proceeding, the proposed second
amended complaint sought “[r]ecission, recoupment and resti-
tution” of the TIF funds paid to Consolidated Grain.
After a hearing, the district court denied leave to amend,
finding that Salem Grain’s request was unnecessarily delayed
and that the proposed amendment would be unduly prejudicial
to the defendants.
6
See id.
- 555 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
(e) Summary Judgment
In April 2016, the defendants moved for summary judg-
ment on the amended complaint, claiming the requested
declaratory and injunctive relief had been rendered moot by
completion of the redevelopment project. The district court
agreed and granted partial summary judgment in favor of the
defendants on Salem Grain’s first 10 causes of action. But the
court denied summary judgment on the 12th cause of action
alleging NOMA violations, reasoning that the completion
of the redevelopment project had not rendered the NOMA
claims moot. A bench trial was set to resolve the remaining
NOMA claims.
(f) Motion to File Third
Amended Complaint
As the date for the bench trial neared, Salem Grain filed a
motion to continue trial and again requested leave to further
amend its complaint. Salem Grain’s proposed third amended
complaint was substantially similar to the proposed second
amended complaint which had not been permitted, but it
alleged several additional NOMA violations. The district court
overruled the motion to amend and refused to continue the
bench trial.
(g) Trial
The bench trial on the alleged NOMA violations was held
on February 9, 2017. Salem Grain tried to offer evidence
related to several alleged NOMA violations, but the defendants
objected on relevancy grounds and the district court limited
the evidence to the violations alleged in the operative com-
plaint: the August 15, 2012, dinner and the November 9, 2012,
email communications.
Salem Grain argued that both the August 15, 2012, dinner
and the November 9 email communications were “meetings” of
the Authority under § 84-1409, and it sought to have any action
taken on the redevelopment project during these meetings
declared void under § 84-1414. After considering the evidence,
- 556 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
the district court concluded that neither event was a meeting of
the Authority under NOMA.
Regarding the dinner, the district court found it was
hosted by the Falls City Economic Development and Growth
Enterprise, and was attended by many Falls City community
leaders, including three members of the Authority. At the din-
ner, which some witnesses described as a “meet-and-greet,”
Consolidated Grain gave a presentation regarding its interest
in constructing the grain facility. Salem Grain argued that
because of the presentation, members of the Authority were
essentially “brief[ed]” by Consolidated Grain during the dinner
and later used that information to approve the redevelopment
project. The district court found the dinner was not a meeting
that required compliance with NOMA, reasoning that there
was insufficient evidence regarding the substance of the infor-
mation actually presented at the dinner and that there was no
direct evidence any Authority member used the information in
later approving the redevelopment project.
Regarding the November 9, 2012, email communications,
the court found an email had been sent by the Authority’s
chairman to all Authority members. The email advised that
Salem Grain had recently filed a lawsuit and told the mem-
bers that the chairman intended to proceed with executing the
redevelopment contract with Consolidated Grain, but that he
would be adding amendments recommended by counsel to
(1) disclose the lawsuit and (2) add language to the existing
indemnification provision. Prior to November 9, the Authority
had approved the redevelopment contract with Consolidated
Grain during a public meeting and had adopted a resolution
authorizing the chairman to “take any and all actions, and to
execute any and all documents” deemed necessary to conclude
the transaction. The chairman’s November 9 email stated:
Should any [Authority] member find need to discuss
and/or act upon these matters, notice needs to be provided
to me by 8 pm today (11/9/12) so that I may schedule
a special meeting for that purpose. Otherwise, you are
- 557 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
hereby notified that I intend to execute the Redevelopment
Contract as previously authorized by the [Authority] with
the above cited immaterial changes recommended by
legal counsel and proceed with the issuance of bonds and
a TIF Grant to Consolidated Grain . . . .
All members of the Authority responded via email to the chair-
man, indicating that a special meeting was not necessary and
that the chairman could proceed to execute the redevelopment
contract pursuant to the earlier resolution. The district court
found this email exchange was not a “meeting” as defined
in § 84-1409(2), reasoning that no new action was taken or
authorized by the Authority during this exchange beyond that
which already had been taken or authorized during the earlier
public meeting.
After concluding Salem Grain had not met its burden of
proving either alleged violation of NOMA, the court entered
an order dismissing the action. No attorney fees were allowed.
Salem Grain timely appealed, and we moved the case to
our docket.
II. ASSIGNMENTS OF ERROR
Salem Grain assigns, restated, that the district court erred in
(1) making certain discovery rulings, (2) denying Salem Grain
leave to file a second amended complaint, (3) granting the
defendants’ motion for partial summary judgment, (4) deny-
ing Salem Grain leave to file a third amended complaint, (5)
denying Salem Grain’s motion to continue trial, (6) excluding
evidence of additional NOMA violations at trial, and (7) dis-
missing the NOMA claims after trial.
III. STANDARD OF REVIEW
[1,2] In an appeal from a declaratory judgment, an appellate
court, regarding questions of law, has an obligation to reach
its conclusion independently of the conclusion reached by
the trial court.7 Statutory interpretation presents a question of
7
Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36 (2018).
- 558 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by
the court below.8
[3,4] An appellate court reviews actions for relief under
NOMA in equity because the relief sought is in the nature of
a declaration that action taken in violation of the act is void or
voidable.9 On appeal from an equity action, an appellate 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.10 But
when credible evidence is in conflict on material issues of fact,
we consider and may give weight to the fact the trial court
observed the witnesses and accepted one version of the facts
over another.11
IV. ANALYSIS
1. Supplemental Briefing
After oral argument, the parties were ordered to file supple-
mental briefs (1) addressing whether Salem Grain brought its
lawsuit within the timeframe set forth in § 18-2142.01 and
(2) analyzing the impact, if any, of this court’s holding in
Community Dev. Agency v. PRP Holdings12 on Salem Grain’s
claims. This briefing was requested to assist the court in deter-
mining whether the conclusive presumptions contained in the
Community Development Law13 have any effect on Salem
Grain’s action challenging the validity and enforceability of the
redevelopment contract and bonds.
8
Salem Grain Co., supra note 1.
9
Schauer v. Grooms, 280 Neb. 426, 786 N.W.2d 909 (2010).
10
Id.
11
Id.
12
Community Dev. Agency v. PRP Holdings, 277 Neb. 1015, 767 N.W.2d 68
(2009).
13
See §§ 18-2129 and 18-2142.01.
- 559 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
Salem Grain’s supplemental briefing urges this court to
find that the reasoning of PRP Holdings is inapplicable and
that the conclusive presumption does not foreclose its claims
under the Community Development Law. The defendants, in
a joint supplemental brief, argue just the opposite. Although
they advance different statutory interpretations, no party raises
a constitutional challenge to any provision of the Community
Development Law. Because we find the applicability of the
conclusive presumption to be dispositive of Salem Grain’s
claims under the Community Development law, we begin our
analysis with an overview of the relevant statutory scheme.
2. Conclusive Presumptions Under
Community Development Law
In 1951, the Nebraska Legislature passed an act referred
to as the Community Development Law.14 Included in that
act is § 18-2129, which at the time of the instant litigation
provided:
In any suit, action, or proceedings involving the validity
or enforceability of any bond of an authority or the secu-
rity therefor, any such bond reciting in substance that it
has been issued by the authority to aid in financing a rede-
velopment project, as herein defined, shall be conclusively
deemed to have been issued for such purpose and such
project shall be conclusively deemed to have been planned,
located, and carried out in accordance with the purposes
and provisions of [the Community Development Law].15
Section 18-2129 applies only to certain suits, actions or
proceedings—those involving the validity and enforceability
of bonds issued by a community redevelopment authority
where the bond recites certain language. But when these fac-
tual predicates are met, § 18-2129 applies to more than just
14
1951 Neb. Laws, ch. 224, § 1, p. 797 (currently codified at § 18-2101).
15
See 1951 Neb. Laws, ch. 224, § 10(6), p. 813.
- 560 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
the redevelopment bonds and requires a court to “conclusively
deem[]” the entire redevelopment project to have been planned,
located, and carried out in accordance with the Community
Development law. The Community Development Law does not
expressly label this a “conclusive presumption,” but we adopt
that term for ease of reference because it accurately describes
the legal effect of the statutory language.
In 1997, the Legislature added another statute16 to the act
which, as we explain below, created a narrow exemption from
the conclusive presumption established by § 18-2129. But
before we discuss the 1997 statute, we discuss the nature of
conclusive presumptions generally.
Commentators have observed that a conclusive presump-
tion “is not a presumption at all, but rather, a substantive rule
of law directing that proof of certain basic facts conclusively
proves an additional fact which cannot be rebutted.”17 The
legislative decision to make a presumption conclusive is one
based on “overriding social policy”18 and typically “rest[s]
upon grounds of expediency or public policy so compelling in
character as to override the requirement of proof.”19 The Utah
Supreme Court has explained that “[w]hen the Legislature
includes a conclusive presumption in a statute, [it is] stating
that the objective promoted by the conclusive presumption
is of greater importance than the opportunity to present facts
challenging the presumed fact.”20
It has been observed that conclusive presumptions frequently
occur in statutes pertaining to decisions of governmental
16
1997 Neb. Laws, L.B. 875 (currently codified at § 18-2142.01).
17
29 Am. Jur. 2d Evidence § 201 at 215 (2008). Accord 1 Clifford S.
Fishman, Jones on Evidence Civil and Criminal § 4:57 (7th ed. 1992).
18
1 Fishman, supra note 17 at 393.
19
29 Am. Jur. 2d, supra note 17, citing U.S. v. Provident Trust Co., 291 U.S.
272, 54 S. Ct. 389, 78 L. Ed. 793 (1934).
20
Davis v. Provo City Corp., 193 P.3d 86, 90-91 (Utah 2008).
- 561 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
entities.21 This is certainly the case in Nebraska, where conclu-
sive presumptions appear in several different statutes address-
ing suits brought to challenge the actions of governmental
entities.22 Some of these Nebraska statutes reference a point
in time after which the conclusive presumption applies,23 and
others do not contain any temporal limitation.24 But regardless,
when considering the application of conclusive presumptions,
it is important to understand they are evidentiary rules affect-
ing the merits of an action and not procedural time limits on
bringing an action.25
As stated, Nebraska’s Community Development Law con-
tains two separate statutes governing conclusive presumptions.
The first is § 18-2129, which was quoted above. The other is
§ 18-2142.01, enacted in 1997, which provides:
(1) In any suit, action, or proceeding involving the
validity or enforceability of any bond of a city, village, or
authority or the security therefor brought after the lapse
of thirty days after the issuance of such bonds has been
authorized, any such bond reciting in substance that it has
been authorized by the city, village, or authority to aid in
financing a redevelopment project shall be conclusively
deemed to have been authorized for such purpose and
21
Davis, supra note 20.
22
See, e.g., Neb. Rev. Stat. § 13-1109 (Reissue 2012); Neb. Rev. Stat.
§ 13-2512 (Reissue 2012); §§ 18-2129 and 18-2142.01; Neb. Rev. Stat.
§§ 18-2424 and 18-2434 (Reissue 2012); Neb. Rev. Stat. § 58-519
(Reissue 2010); Neb. Rev. Stat. § 70-1406(5) (Reissue 2018); Neb. Rev.
Stat. § 71-15,116 (Reissue 2018).
23
See, e.g., § 13-1109(3) (conclusive presumption applies to actions “brought
after the lapse of thirty days after” contract is formally entered into or
issuance of bonds has been authorized); § 18-2142.01 (same); § 58-519
(conclusive presumption applies in actions “brought after the lapse of
thirty days after the bonds are issued”).
24
See, e.g., §§ 13-2512, 18-2129, 18-2424, 18-2434, 70-1406(5), and
71-15,116.
25
Davis, supra note 20.
- 562 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
such redevelopment project shall be conclusively deemed
to have been planned, located, and carried out in accord­
ance with the purposes and provisions of the Community
Development Law . . . .
(2) In any suit, action, or proceeding involving the
validity or enforceability of any agreement of a city, vil-
lage, or authority brought after the lapse of thirty days
after the agreement has been formally entered into, any
such agreement reciting in substance that it has been
entered into by the city, village, or authority to provide
financing for an approved redevelopment project shall be
conclusively deemed to have been entered into for such
purpose and such project shall be conclusively deemed
to have been planned, located, and carried out in accord­
ance with the purposes and provisions of the Community
Development Law . . . .
Neither § 18-2129 nor § 18-2142.01 expressly references
the other, but both statutes relate to the same subject matter:
application of a conclusive presumption in actions brought
to challenge redevelopment contracts and bonds under the
Community Development Law. Section 18-2129 addresses
actions brought to challenge bonds of a redevelopment author-
ity, while § 18-2142.01 addresses actions brought to challenge
both redevelopment bonds and redevelopment contracts. But
under both statutes, when the factual predicates are met and
the conclusive presumption applies, courts are required to
deem the entire redevelopment project to have been “planned,
located, and carried out in accordance with the purposes and
provisions of ” the Community Development Law.26
Despite their similarities, there is tension between
§§ 18-2129 and 18-2142.01. The former contains no temporal
restriction on application of the conclusive presumption, but
the latter expressly identifies a time period after which the
26
§ 18-2129. Accord § 18-2142.01(1) and (2).
- 563 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
conclusive presumption applies.27 This is our first opportunity
to construe this competing language, and in doing so, we are
guided by well-settled principles of statutory construction.
[5-7] Long ago we recognized the fundamental principle
that statutes relating to the same subject, although enacted
at different times, are in pari materia and should be con-
strued ­together.28 Because §§ 18-2129 and 18-2142.01 address
the same conclusive presumption under the Community
Development Law, we construe them together to determine
the intent of the Legislature, so that different provisions are
consistent, harmonious, and sensible.29 And when two statutes
are capable of coexistence, it is the duty of the courts, absent a
clearly expressed legislative intention to the contrary, to regard
each as effective, and to harmonize overlapping statutes “so
long as each reaches some distinct cases.”30
The conclusive presumption established in § 18-2129 already
existed when § 18-2142.01 was enacted, but the two statutes
plainly overlap. The conclusive presumption under § 18-2129
applies to all suits challenging the validity or enforceability
of a redevelopment bond, without regard to when the suit was
brought. The conclusive presumption under § 18-2142.01 also
applies to suits challenging redevelopment bonds (as well as
contracts), but that statute only applies the conclusive pre-
sumption to suits “brought after the lapse of thirty days after”
the issuance of the bonds has been authorized31 or the contract
has been formally entered into.32
27
See § 18-2142.01(1) (“after the lapse of thirty days after” triggering
event). Accord § 18-2142.01(2).
28
Enyeart v. City of Lincoln, 136 Neb. 146, 285 N.W. 314 (1939).
29
See State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
30
See Citizens of Humanity v. Applied Underwriters, 299 Neb. 545, 560,
909 N.W.2d 614, 627 (2018), cert. denied ___ U.S. ___, 139 S. Ct. 274,
202 L. Ed. 2d 135, quoting J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred
International, Inc., 534 U.S. 124, 122 S. Ct. 593, 151 L. Ed. 2d 508 (2001).
31
§ 18-2142.01(1).
32
§ 18-2142.01(2).
- 564 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
[8] Where it is possible to harmonize apparently conflict-
ing statutes, a court should do so.33 Reading the plain text of
§§ 18-2129 and 18-2142.01 together, we conclude they can
be harmonized, and each can be given effect, if § 18-2129
is understood to create a conclusive presumption that applies
anytime the factual predicates are met and § 18-2142.01 is
understood to modify that conclusive presumption by creat-
ing a narrow exemption for actions brought during the 30-day
period after the contract is formally entered into or the bond is
authorized to be issued.
[9] So construed, §§ 18-2129 and 18-2142.01 together effec-
tively provide that any suit, action, or proceeding brought
outside the 30-day period established in § 18-2142.01 will be
subject to the conclusive presumptions required by §§ 18-2129
and 18-2142.01, as long as the action is one challenging the
validity or enforceability of a redevelopment bond or contract
and the bond or contract recites in substance the language
required by the statutes.
Although not dispositive, we note the legislative history sup-
ports such a construction. Ordinarily, when construing statutes,
we look no further than the plain text.34 But a court may inquire
into legislative history when a statute is open to construction
because its terms require interpretation or may reasonably be
considered ambiguous.35 The senator who introduced what
became § 18-2142.01 described it as creating “a 30-day win-
dow” to challenge the validity and enforceability of redevelop-
ment bonds and contracts, before the conclusive presumption
applied.36 Without any discussion of § 18-2129, we adopted a
similar interpretation in PRP Holdings.37
33
See Hoiengs v. County of Adams, 254 Neb. 64, 574 N.W.2d 498 (1998).
34
See McGuire, supra note 29.
35
Id.
36
See Floor Debate, L.B. 875, 95th Leg., 1st Sess. 8095 (May 22, 1997)
(remarks of Senator Paul Hartnett).
37
PRP Holdings, supra note 12.
- 565 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
In that case, the community development agency (Agency)
entered into a redevelopment contract to convert a building
into apartments. The redevelopment contract included TIF
funding. After the redevelopment project was completed, it
was sold to a subsequent purchaser. The Agency, claim-
ing the subsequent purchaser was not entitled to TIF funds,
brought a lawsuit seeking to have the redevelopment contract
declared void ab initio, alleging it failed to comply with the
Community Development Law. The district court found the
conclusive presumption under § 18-2142.01(2) foreclosed the
Agency from contesting the redevelopment contract’s valid-
ity. On appeal, we agreed. After reciting the provisions of
§ 18-2142.01(2), we explained the purpose and effect of that
statute as follows:
The Legislature has set a specific window of time
during which a party can challenge a redevelopment con-
tract. Under the statute, after the window has closed, the
contract has conclusively complied with the [Community
Development Law] and Neb. Rev. Stat. §§ 18-2145 to
18-2154 (Reissue 1997). In short, § 18-2142.01(2) pro-
vides finality and gives all parties to a contract that pro-
vides financing for a redevelopment project a green light
to proceed. The only exception is if a suit or other pro-
ceeding is initiated within 30 days of the parties’ formally
entering into the contract.38
In PRP Holdings, we found the redevelopment agreement
at issue was “formally entered into” when the redevelopment
contract was signed by the Agency and the redevelopers,39 and
we found the Agency’s declaratory judgment action challeng-
ing the validity of that agreement was not filed until 8 years
later. Because the Agency had not filed suit to contest the
38
Id. at 1020, 767 N.W.2d at 72 (emphasis supplied).
39
Id. at 1016, 767 N.W.2d at 70. See § 18-2103(15) (defining “[r]edevelop­
ment contract” as “a contract entered into between an authority and a
redeveloper for the redevelopment of an area in conformity with a redevel­
opment plan”).
- 566 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
validity of the redevelopment agreement “within 30 days after
the contract was signed,” we found it was precluded from con-
testing the contract’s validity and we did not address the merits
of the claim being raised, reasoning that Ҥ 18-2142.01(2)
forecloses all of the Agency’s arguments.”40
In PRP Holdings, we considered the application of the
conclusive presumption to an action brought after the 30-day
time period in § 18-2142.01. The instant appeal requires us
to consider how, if at all, the conclusive presumption applies
in an action brought before the commencement of that 30-day
time period.
3. Conclusive Presumption A pplies
to Salem Grain’s Claims
No party disputes that Salem Grain’s suit falls within the
category of actions governed by §§ 18-2129 and 18-2142.01.
Salem Grain admits this action was brought to challenge the
validity and enforceability of the redevelopment contract and
the bonds issued pursuant thereto, and the record shows the
necessary statutory language was recited in substance in both
the redevelopment contract and the bond.
But Salem Grain argues the conclusive presumption
should not apply to foreclose its claims, because its lawsuit
was already on file when the 30-day window opened under
§ 18-2142.01. Salem Grain asks us to find, summarized, that
§ 18-2142.01 exempts from the conclusive presumption not
only those actions brought during the 30-day period after the
redevelopment contract is executed or the bond is authorized to
be issued, but also those actions already pending at that point.
We must reject this interpretation for two reasons.
[10] First, Salem Grain’s position would require that we
construe the statutory scheme in a manner that effectively nul-
lifies § 18-2129. But the Legislature did not repeal § 18-2129
upon enacting § 18-2142.01 in 1997. And in 2018, when the
Community Development Law was amended, both statutes
40
PRP Holdings, supra note 12, 277 Neb. at 1019, 1020, 767 N.W.2d at 72.
- 567 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
were retained and updated.41 Under the statutory scheme,
§ 18-2129 creates a conclusive presumption that applies to
any action challenging the validity or enforceability of a bond
reciting the statutory language—and this necessarily includes
actions already pending at the time such a redevelopment bond
is issued. In the absence of clear legislative intent, a construc-
tion of a statute will not be adopted which has the effect of
nullifying or repealing another statute.42 We decline to inter-
pret § 18-2142.01 in a manner that would effectively nullify
§ 18-2129.
[11] Next, we must reject Salem’s Grain’s position because
it advocates the judicial expansion of the narrow category of
suits which the Legislature has chosen to exempt from the
conclusive presumption. While there may be sound policy
reasons for the Legislature to expand the 30-day exemption
under § 18-2142.01 to include suits already pending when a
redevelopment contract is formally entered into or a bond is
authorized to be issued, it has not done so. And it is not within
the province of the courts to read a meaning into a statute
which is not there.43 We decline Salem Grain’s invitation to
construe § 18-2142.01(2) in a way that expands the category of
cases exempted from the conclusive presumption established
by the Legislature.
We instead adhere to the construction of § 18-2142.01
we articulated in PRP Holdings.44 When a redevelopment
contract or bond recites in substance the language set out in
§ 18-2142.01(1) and (2), that statute establishes a specific win-
dow of time during which a party may challenge the validity
or enforceability of the redevelopment contract or bond, unen-
cumbered by the conclusive presumption under the Community
41
See 2018 Neb. Laws, L.B. 874, §§ 23 and 30.
42
State ex rel. City of Elkhorn v. Haney, 252 Neb. 788, 566 N.W.2d 771
(1997).
43
Stew. v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).
44
PRP Holdings, supra note 12.
- 568 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
Development Law. That window opens on the date the rede-
velopment contract is formally entered into45 or the bond is
authorized to be issued,46 and it closes 30 days later. And while
the plain text of § 18-2142.01 does not apply the conclusive
presumption to actions brought before this 30-day period, the
conclusive presumption of § 18-2129 applies to all actions
regardless of when they are brought.
When §§ 18-2129 and 18-2142.01 are construed together,
the effect is that any suit, action, or proceeding brought outside
the 30-day period established in § 18-2142.01 will be subject
to the conclusive presumptions required by §§ 18-2129 and
18-2142.01, assuming the action is one challenging the valid-
ity or enforceability of a redevelopment bond or contract and
the bond or contract recites in substance the language required
by the statutes. We emphasize that this construction is applied
only because the Legislature chose to include both §§ 18-2129
and 18-2142.01 in the Community Development Act and both
statutes must, if possible, be given effect. The construction
articulated here would not be required in the absence of either
§ 18-2129 or § 18-2142.01.
No party raises it as an issue in the present case, but we
pause here to point out a practical challenge presented by the
statutory scheme. The Community Development Law does
not require that a redevelopment contract be executed dur-
ing a public meeting.47 Nor does it require that the public be
given notice of either the date a redevelopment agreement is
“formally entered into” or the date a bond is “authorized” to
be issued for purposes of § 18-2142.01. Consequently, while
parties to the redevelopment agreement and those who are
involved in or closely following the redevelopment project
may have personal knowledge of when the 30-day time period
under § 18-2142.01 begins to run, others may not. This could
45
§ 18-2142.01(2).
46
§ 18-2142.01(1).
47
See § 18-2119(1).
- 569 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
present a practical challenge for those wishing to challenge
the validity or enforceability of a redevelopment contract or
bond within the 30-day window under § 18-2142.01. But the
proper role of this court is to declare the law as it finds it,48
not to redesign the statutory scheme. Consideration of whether
the Community Development Law should include some form
of public notice when a redevelopment agreement is executed
or the issuance of a bond is authorized is a policy matter for
the Legislature.
To summarize, when Salem Grain filed its suit on October
24, 2012, challenging the validity and enforceability of the
redevelopment contract and bond, no conclusive presumption
yet applied under § 18-2129 because, at that point, the factual
predicates of the statute had not been met. Specifically, no
redevelopment contract had yet been executed, so no bond
had yet been issued and it was not possible to determine
whether the bond recited in substance the language required by
§ 18-2129.
But later, when the redevelopment contract was executed
and the bond was issued, reciting in substance the requisite
language, the action became one to which the conclusive pre-
sumption under § 18-2129 applied as a matter of law. And
assuming without deciding that an amended complaint brought
within the 30-day period “after the lapse of thirty days after”
the contract was executed and the bond was issued could trig-
ger the narrow exemption created by § 18-2142.01, Salem
Grain’s amended complaint was filed outside that time period.
On these facts, the conclusive presumption under § 18-2129
applied as a matter of law as soon as the factual predicates were
met, and the narrow 30-day exemption under § 18-2142.01 was
never triggered.
Thus, as a matter of law, the conclusive presumption man-
dated by § 18-2129 applies to Salem Grain’s suit and requires
48
Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 907
N.W.2d 1 (2018).
- 570 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
that the redevelopment project at issue “shall be conclu-
sively deemed to have been planned, located, and carried
out in accord­ance with the purposes and provisions of ” the
Community Development Law.49 This conclusive presumption
is nonrebuttable, and it forecloses all of Salem Grain’s alleged
challenges to the validity and enforceability of the redevelop-
ment contract and the bond issued pursuant thereto, under the
Community Development Law.
Therefore, although our reasoning differs from that applied
by the district court, we find no error in the court’s dismissal of
Salem Grain’s first 10 causes of action. Moreover, because all
of Salem Grain’s claims under the Community Development
Act are foreclosed by the conclusive presumption, there could
be no reversible error in the trial court’s discovery rulings on
those claims or in its refusal to allow Salem Grain to further
amend its complaint to present additional challenges to the
validity and enforceability of the redevelopment agreement and
the bond.
(a) Conclusive Presumption Is Not
Affirmative Defense
Salem Grain equates the conclusive presumption to a statute
of limitations and argues it should not apply here because it
was not raised below as an affirmative defense. The defen-
dants’ answers included the general allegation that the amended
complaint failed to state a claim upon which relief could be
granted, but Salem Grain is correct that no defendant alleged
the claims were foreclosed by application of the conclusive
presumption.
Nebraska’s pleading rules require that certain enumerated
defenses “and any other matter constituting an avoidance or
affirmative defense” must be pled in a defendant’s answer.50
But the conclusive presumptions of §§ 18-2129 and 18-2142.01
49
§ 18-2129. Accord § 18-2142.01(1) and (2).
50
Neb. Ct. R. Pldg. § 6-1108(c).
- 571 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
are neither affirmative defenses nor statutes of limitations, and
the fact that they were neither alleged nor argued below does
not preclude their application, as a matter of substantive law,
to this case.
[12] An affirmative defense raises a new matter which,
assuming the allegations in the petition or complaint to be true,
constitutes a defense to the merits of a claim asserted in the
petition.51 It generally avoids, rather than negates, the plain-
tiff’s prima facie case.52
[13] A statute of limitations is an affirmative defense,53 but
“[a] statute providing a conclusive presumption is very differ-
ent from a statute of limitations.”54 The purpose of a statute of
limitations is to prevent recovery of stale claims.55 In contrast,
a conclusive presumption is “a substantive rule of law direct-
ing that proof of certain basic facts conclusively proves an
additional fact which cannot be rebutted.”56 The conclusive
presumptions under §§ 18-2129 and 18-2142.01 are not proce-
dural statutes of limitations.
Nor are they affirmative defenses. The statutory mandate
that a redevelopment project “shall be conclusively deemed to
have been planned, located, and carried out in accordance with
the purpose and provisions of” the Community Development
Law57 does not raise a new matter or constitute a defense to the
merits of the claim. Rather, as explained previously, it is a sub-
stantive evidentiary rule that forecloses or negates any proof
51
See, Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017);
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017).
52
John P. Lenich, Nebraska Civil Procedure § 12:11 (2018).
53
See § 6-1108(c).
54
Davis, supra note 20, 193 P.3d at 89.
55
Becker v. Hobbs, 256 Neb. 432, 441, 590 N.W.2d 360, 366 (1999).
56
29 Am. Jur. 2d, supra note 17, § 201 at 215. Accord 1 Fishman, supra
note 17.
57
§ 18-2129. Accord § 18-2142.01(1) and (2).
- 572 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
to the contrary. Stated differently, when the factual predicates
are met, §§ 18-2129 and 18-2142.01 establish the legal stan-
dard courts must apply to actions brought outside the 30-day
window challenging the validity or enforceability of redevelop-
ment agreements and bonds.58 The fact that the conclusive pre-
sumption was neither alleged nor argued below does not affect
its applicability as a matter of substantive law.
(b) Community Development Law
and NOMA Claims
Finally, Salem Grain argues that even if the conclusive pre-
sumption applies to foreclose its claims under the Community
Development Law, it should have no effect on Salem Grain’s
NOMA claims related to the redevelopment project. It con-
tends that regardless of the conclusive presumption under the
Community Development Law, NOMA provides a separate
legal basis for declaring void any resolution made or formal
action taken by the Authority in violation of NOMA.
Salem Grain alleged multiple causes of action, includ-
ing NOMA violations, to support its ultimate request that
the redevelopment contract and any bonds issued pursuant
thereto be declared null and void. The question becomes
whether, in light of the conclusive presumption required by
§§ 18-2129 and 18-2142.01, any violation of NOMA could
affect the validity and enforceability of the redevelopment
contract and bonds.
There is potential tension between the conclusive presump-
tions under the Community Development Law and the provi-
sions under § 84-1414 for declaring void a resolution made or
formal action taken by a public body in violation of NOMA.
That is because the Community Development Law contains
express provisions governing the public hearing and notice
requirements for redevelopment plans59 and also makes clear
58
PRP Holdings, supra note 12.
59
See, e.g., §§ 18-2109, 18-2115, 18-2115.01, and 18-2119 (Cum. Supp.
2018).
- 573 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
that the Community Development Law “shall be full authority
for the . . . exercise of the powers therein granted to a city or
village and to such authority” and that “[i]nsofar as the provi-
sions of [the Community Development Law] are inconsistent
with the provisions of any other law . . . the provisions of [the
Community Development Law] shall be controlling.”60
When the conclusive presumption of §§ 18-2129 or
18-2142.01 applies, the “project shall be conclusively deemed
to have been planned, located, and carried out in accord­
ance with the purpose and provisions of” the Community
Development Law.61 This presumption necessarily encom-
passes an authority’s compliance with the public hearing and
notice provisions of the Community Development Law and
prompts the question whether the public meeting require-
ments under NOMA, and in particular the provisions under
§ 84-1414 for declaring void a resolution made or formal action
taken by a public body in violation of NOMA, are inconsist­
ent with the conclusive presumption under the Community
Development Law.
This case, however, does not require that we resolve any
possible tension between the Community Development Law
and NOMA. That is because, as we explain below, no NOMA
violation has been proved.
An appellate court reviews actions for relief under NOMA
in equity because the relief sought is in the nature of a dec-
laration that action taken in violation of the act is void or
voidable.62 On appeal from an equity action, an appellate 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.63
But when credible evidence is in conflict on material issues
60
§ 18-2144.
61
§ 18-2129. Accord § 18-2142.01(1) and (2).
62
Schauer, supra note 9.
63
Id.
- 574 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
of fact, we consider and may give weight to the fact the trial
court observed the witnesses and accepted one version of the
facts over another.64
Salem Grain alleged that two events—the August 15, 2012,
dinner and the November 9 email communications—were
“meetings” of the Authority for purposes of NOMA. And
Salem Grain argued that because NOMA requirements were
not followed with respect to such meetings, any action taken
by the Authority was invalidated pursuant to § 84-1414. The
Authority denied that either event was a meeting governed by
NOMA, and the district court agreed. After a de novo review
of the record, so do we.
(i) Dinner
NOMA defines a “[m]eeting” as “all regular, special, or
called meetings, formal or informal, of any public body for the
purposes of briefing, discussion of public business, formation
of tentative policy, or the taking of any action of the public
body.”65 NOMA also provides, however, that it
does not apply to chance meetings or to attendance at
or travel to conventions or workshops of members of
a public body at which there is no meeting of the body
then intentionally convened, if there is no vote or other
action taken regarding any matter over which the pub-
lic body has supervision, control, jurisdiction, or advi-
sory power.66
In Schauer v. Grooms,67 parties seeking to challenge the
annexation of land for a redevelopment project involving an
ethanol plant claimed that a dinner and walking tour of another
ethanol facility constituted a public meeting of the city coun-
cil under NOMA. The dinner and tour were hosted by the
64
Id.
65
§ 84-1409(2).
66
§ 84-1410(5).
67
Schauer, supra note 9.
- 575 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
economic redevelopment board and attended by the mayor,
three members of the city council, and approximately 40 other
people. The city council members testified that during the din-
ner, they “did not discuss or receive information associated
with the redevelopment plan and contract” and did not “take
any formal action on behalf of the city council.”68 We found the
plaintiffs had not presented any evidence the dinner was “‘for
the purposes of briefing, discussion of public business, forma-
tion of tentative policy, or the taking of any action of the public
body’”69 and thus found no violation of NOMA.
Here, witnesses testified that Consolidated Grain gave a
presentation during the dinner, but no witness could recall
specifics about the content of that presentation. The quo-
rum of Authority members who attended the dinner testified
that no business was discussed and that they did not rely on
any information from the dinner to support their subsequent
decisions during public meetings to approve the redevelop-
ment project.
On this record, we agree there is insufficient evidence
that the dinner involved any “briefing, discussion of public
business, formation of tentative policy, or the taking of any
action”70 by the Authority. The dinner did not constitute a
meeting under NOMA.
(ii) Email
For similar reasons, we agree with the district court that the
email communications were not a “[m]eeting” as defined in
§ 84-1409(2), as there was no purpose to hold a briefing ses-
sion, discuss public business, form tentative policy, or take any
action of the public body. To the contrary, the record shows
the purpose of the email communications was to let Authority
members know Salem Grain had filed suit and advise that
68
Id. at 447, 786 N.W.2d at 926.
69
Id., quoting § 84-1409(2).
70
§ 84-1409(2).
- 576 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
the previously approved contract was being amended to dis-
close the litigation and to include additional indemnification
language recommended by counsel. The chairman was not
seeking permission to take these actions, because the Authority
already had authorized him to “take any and all actions, and
to execute any and all documents,” deemed necessary to con-
clude the transaction.
Section 84-1410(4) provides in part, “No closed session,
informal meeting, chance meeting, social gathering, email,
fax, or other electronic communication shall be used for the
purpose of circumventing the requirements of the act.” Salem
Grain argues the emails were used by the Authority to circum-
vent the requirements of NOMA. But the chairman’s email
stated that if any member wanted to “discuss and/or act upon
these matters,” the chairman would “schedule a special meet-
ing for that purpose.”
Properly understood, the chairman’s email demonstrates it
was sent not to circumvent the requirements of NOMA, but,
rather, to adhere to them. The district court did not err in find-
ing no NOMA violation with respect to the emails.
4. Evidence of A dditional
NOMA Violations
[14-16] Lastly, Salem Grain assigns error to the district
court’s exclusion of certain evidence offered at trial and
objected to as irrelevant. In proceedings where the Nebraska
Evidence Rules apply, the admissibility of evidence is con-
trolled by these rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.71 The exercise of judicial discretion is implicit in
determining the relevance of evidence, and we will not reverse
a trial court’s decision regarding relevance absent an abuse
of discretion.72 A judicial abuse of discretion exists when
71
Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
72
Id.
- 577 -
Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SALEM GRAIN CO. v. CITY OF FALLS CITY
Cite as 302 Neb. 548
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition.73
[17] The evidence excluded by the trial court pertained to
NOMA violations which had not been alleged in the operative
amended complaint. Relevant evidence means evidence having
any tendency to make the existence of any fact that is of con-
sequence to the determination of the action more probable or
less probable than it would be without the evidence.74
The NOMA violations alleged in Salem Grain’s amended
complaint focused exclusively on the August 15, 2012, din-
ner and the November 9 email exchange. Because only those
two alleged NOMA violations were at issue, and because the
proffered evidence of other possible NOMA violations had
no tendency to make any fact of consequence to those two
violations any more or less probable, the evidence had no
relevance and the trial court did not abuse its discretion in
excluding it.
V. CONCLUSION
The conclusive presumptions of §§ 18-2129 and 18-2142.01
present a formidable hurdle to those seeking to challenge the
validity or enforceability of a redevelopment contract or bond
under the Community Development Law. We find that all of
Salem Grain’s claims challenging the procedure by which
the redevelopment project was adopted and the validity and
enforceability of the redevelopment agreement and bond are
conclusively foreclosed by §§ 18-2129 and 18-2142.01. And
after a de novo review of the NOMA claims, we agree with the
district court that no open meeting violation occurred. Finding
all of Salem Grain’s assignments of error to be without merit,
we affirm the judgment of the district court.
A ffirmed.
73
Id.
74
Id.