Bruno v. Metropolitan Utilities Dist.

Nebraska Advance Sheets
BRUNO v. METROPOLITAN UTILITIES DIST. 551
Cite as 287 Neb. 551In this case, Welsh never filed a petition in intervention.
Although Welsh claims to have filed the equivalent in a writ­
ten motion, no such motion appears in the record before this
court. At the time of his oral motion, Welsh was not a party
to the suit. Furthermore, Welsh stated at the hearing that he no
longer represented Wisniewski. Lacking subject matter juris­
diction, the court erred in deciding Welsh’s oral motion for
payment. We have stated that a ruling made in the absence of
subject matter jurisdiction is a nullity.5 We therefore vacate the
district court’s order granting Welsh’s oral motion and dismiss
the appeal.
Order vacated, and appeal dismissed.
Miller-Lerman, J., participating on briefs.
5
Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012); Hunt v. Trackwell,
262 Neb. 688, 635 N.W.2d 106 (2001); In re Estate of Andersen, 253 Neb.
748, 572 N.W.2d 93 (1998); Billups v. Scott, 253 Neb. 287, 571 N.W.2d
603 (1997).
Jason M. Bruno, appellant, v. Metropolitan Utilities
District et al., appellees, and Northern Natural
Gas Company, intervenor-appellee.
___ N.W.2d ___
Filed February 28, 2014. No. S-13-212.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre­
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
4. Contracts: Legislature. Competitive bids and public letting are unquestionably a
matter of legislative prerogative.
5. Statutes: Appeal and Error. The language of a statute is to be given its plain
and ordinary meaning, and an appellate court will not resort to interpreta­
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
Nebraska Advance Sheets
552 287 NEBRASKA REPORTS
6. Statutes. If the language of a statute is clear, the words of such statute are the
end of any judicial inquiry regarding its meaning.
7. ____. Where general and special provisions of statutes are in conflict, the general
law yields to the special.
8. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
9. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure
to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a
claim to relief that is plausible on its face. In cases in which a plaintiff does not
or cannot allege specific facts showing a necessary element, the factual allega­
tions, taken as true, are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will reveal evidence of
the element or claim.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
James D. Sherrets, Robert S. Sherrets, and Diana J. Vogt, of
Sherrets, Bruno & Vogt, L.L.C., for appellant.
Ronald E. Bucher for appellees Metropolitan Utilities
District et al.
Gregory C. Scaglione and Minja Herian, of Koley Jessen,
P.C., L.L.O., and Greg Porter and James R. Talcott for
i
­ntervenor-appellee Northern Natural Gas Company.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Stephan, J.
The issue presented in this appeal is whether Nebraska law
requires a metropolitan utilities district to seek competitive
bids before entering into a contract with another entity to pro­
vide interstate natural gas transportation services. The district
court for Douglas County determined that there was no such
requirement. We agree, and therefore affirm.
BACKGROUND
Metropolitan Utilities District (M.U.D.) is a political subdi­
vision which distributes water and natural gas to residents and
businesses in the Omaha metropolitan area.1 It was established
1
Neb. Rev. Stat. § 14-101 and § 14-2101 (Reissue 2012).
Nebraska Advance Sheets
BRUNO v. METROPOLITAN UTILITIES DIST. 553
Cite as 287 Neb. 551and is governed by Nebraska law.2 M.U.D. contracts with
Northern Natural Gas Company (Northern) for natural gas
pipeline transportation services to bring natural gas to the
Omaha metropolitan area.
On November 7, 2012, M.U.D. and Northern entered
into a contract with an effective date of January 1, 2013.
This contract was an amendment to a preexisting contract
between M.U.D. and Northern. The new contract provided
that Northern would provide interstate natural gas transporta­
tion service to M.U.D. for 20 years for an amount in excess
of $300 million.
Jason M. Bruno, a ratepayer and taxpayer in Omaha, obtains
services for gas, water, and sewer from M.U.D. He filed a
complaint against M.U.D. and its board members seeking a
declaratory judgment that the 2012 amendment to the contract
between M.U.D. and Northern be found void or voidable,
terminated, or in the alternative, equitably adjusted. He also
asked that M.U.D. be required to bid for all work in accord­
ance with state law. Bruno alleged that M.U.D. failed to seek
bids for the contract in violation of statutory and common
law requirements. Specifically, he alleged that § 14-2121
requires M.U.D. to seek bids for all contracts for work not
performed by M.U.D. employees. He also alleged that the
contract resulted in M.U.D.’s paying more than if the contract
had been let for bid, thus causing increased rates for ratepay­
ers and taxpayers.
Northern was granted leave to intervene, and both Northern
and M.U.D. filed motions to dismiss, to strike, and of misjoin­
der. The district court determined that the plain language of
§ 14-2121 does not require mandatory bidding; rather, it grants
M.U.D. discretionary authority to decide whether to seek bids
for its contracted projects. In addition, the court determined
that § 14-2125 expressly allowed M.U.D. to contract with
other companies operating gas distribution systems for the
transportation, purchase, sale, or exchange of available gas
supplies with no requirement that such contracts or agreements
must be let for bidding. The district court concluded Nebraska
2
Neb. Rev. Stat. §§ 14-2101 to 14-2157 (Reissue 2012 & Supp. 2013).
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554 287 NEBRASKA REPORTS
law does not require or mandate that M.U.D. seek bids for
the contract it entered into with Northern for natural gas pipe­
line services, sustained the motions to dismiss, and dismissed
Bruno’s complaint.
ASSIGNMENTS OF ERROR
On appeal, Bruno assigns the district court erred in (1)
determining that M.U.D. was not statutorily required to seek
bids for all contracts not performed by M.U.D. employees, (2)
interpreting § 14-2125(1) in isolation rather than as part of a
statutory scheme, (3) failing to find that strong public policy
requires competitive bidding, (4) failing to address all of his
claims, and (5) dismissing the complaint.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo.3 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusion.4
[3] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.5
ANALYSIS
M.U.D. was created by the Legislature, and the Legislature
has plenary power over M.U.D.6 The Legislature exercised this
power by enacting §§ 14-2101 to 14-2157. M.U.D. is governed
by an elected board of directors7 which has “general charge,
3
Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236(2013).
4
Id.5
Butler County Dairy v. Butler County, 285 Neb. 408, 827 N.W.2d 267(2013); In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747(2012).
6
Evans v. Metropolitan Utilities Dist., 187 Neb. 261, 188 N.W.2d 851(1971).
7
§ 14-2102.
Nebraska Advance Sheets
BRUNO v. METROPOLITAN UTILITIES DIST. 555
Cite as 287 Neb. 551supervision, and control of all matters pertaining to the natural
gas supply . . . of the district.”8 The board has the power and
authority to determine and fix natural gas rates.9 When M.U.D.
is supplied with natural gas by any limited liability company
or corporation, the board has the power and authority to fix
rates and regulate the conditions of service.10
[4-6] The issue presented in this appeal is whether M.U.D.
is legally required to seek competitive bids before enter­
ing into a contract for interstate transmission of natural gas.
Competitive bids and public letting are unquestionably a mat­
ter of legislative prerogative.11 Therefore, we focus our inquiry
on two statutes which apply to the authority of a metropolitan
utilities district to enter into contracts. We do so mindful of the
principle that the language of a statute is to be given its plain
and ordinary meaning, and an appellate court will not resort
to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous.12 Also, if the lan­
guage of a statute is clear, the words of such statute are the end
of any judicial inquiry regarding its meaning.13
The first statute, § 14-2121, provides:
The board of directors shall have authority to receive
bids for all work which it may desire to have done by
contract or for material and supplies to be used in con­
nection with such work, which bids shall be received after
reasonable advertisement therefor and when opened shall
be read in public session. The board of directors may
award contracts based upon the bids to the lowest respon­
sible bidders, except that the board of directors may, for
such reasons as appear to it good and substantial, reject
all bids. The board of directors shall have power and
authority to do all of such work and to purchase materials
8
§ 14-2113.
9
§ 14-2114.
10
§ 14-2119.
11
Anderson v. Peterson, 221 Neb. 149, 375 N.W.2d 901 (1985).
12
Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013).
13
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
Nebraska Advance Sheets
556 287 NEBRASKA REPORTS
and supplies without advertising for bids and without
entering into contract with any other persons or compa­
nies in relation thereto.
The district court determined that this statute does not require
competitive bidding, but, rather, grants M.U.D. the discretion
whether or not to go through a bidding process.
[7] M.U.D. argues that the plain meaning of the phrase
“shall have authority to receive bids” in the first sentence of
§ 14-2121 and the phrase “may award contracts” in the second
sentence support the district court’s conclusion that the statute
allows but does not require competitive bidding. M.U.D. notes
that when the Legislature has imposed a competitive bidding
requirement, it has used markedly different language. For
example, with respect to certain public power and irrigation
district contracts exceeding a specified amount, the Legislature
has required that “no such contract shall be entered into with­
out advertising for sealed bids.”14 Likewise, in a statute appli­
cable to cities of the first class, the Legislature provided that
“[a]dvertisements for bids shall be required for any contract
costing over thirty thousand dollars” entered into for specified
public improvements.15 Although § 14-2121 includes no similar
language mandating competitive bidding, Bruno argues that
when the first two sentences of the statute are considered along
with the third sentence, the statute must be read to mean that
M.U.D. is required to let competitive bids on all work which is
not performed by its own employees. We need not resolve this
dispute with respect to the meaning of § 14-2121, because we
conclude that the issue before us in this case is controlled by
§ 14-2125(1), which provides:
A metropolitan utilities district may enter into agree­
ments with other companies or municipalities operating
gas distribution systems and with gas pipeline companies,
whether within or outside the state, for the transportation,
purchase, sale, or exchange of available gas supplies or
propane supplies held for peak-shaving purposes, so as to
14
Neb. Rev. Stat. § 70-637(2) (Reissue 2009).
15
Neb. Rev. Stat. § 16-321(4) (Reissue 2012).
Nebraska Advance Sheets
BRUNO v. METROPOLITAN UTILITIES DIST. 557
Cite as 287 Neb. 551realize full utilization of available gas supplies and for the
mutual benefit of the contracting parties.
In contrast to the general provisions of § 14-2121, this statute
pertains specifically to the type of contract at issue in this case.
Where general and special provisions of statutes are in conflict,
the general law yields to the special.16
[8] Section 14-2125(1) makes no mention of competitive
bidding. An appellate court will not read into a statute a mean­
ing that is not there.17 Formulation of a statutory requirement
for competitive bids would involve minimal effort with plain
language18—a task within the province of the Legislature.
Moreover, § 14-2125(1) authorizes M.U.D. to enter into agree­
ments for the “transportation, purchase, sale, or exchange” of
gas supplies based upon factors other than the lowest cost,
namely, “full utilization of available gas supplies and for the
mutual benefit of the contracting parties.” The district court
correctly determined that there was no statutory competitive
bidding requirement with respect to the contract at issue.
Bruno also contends that the district court erred in fail­
ing to find that strong public policy considerations require
competitive bidding. But that determination was not for the
district court, or this court, to make. Rather, the “Legislature
is the appropriate forum for resolution of questions concerning
Nebraska’s policy on the . . . relationship between competitive
bidding and expenditures of public funds.”19 The role of the
courts is to construe applicable statutes to determine whether
the Legislature has imposed a competitive bidding requirement
in a specific context.20 In this case, we agree with the district
court that it did not, and that concludes our inquiry.
Bruno argues that the district court failed to address his
contention that the contract in question was “ultra vires.”
16
See J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).
17
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30(2013).
18
Anderson v. Peterson, supra note 11.
19
Id. at 156, 375 N.W.2d at 906.
20
Id.Nebraska Advance Sheets
558 287 NEBRASKA REPORTS
Although Bruno’s complaint included a general allegation that
the contract was “ultra vires, illegal, and void,” he alleged no
facts to support this claim other than alleged noncompliance
with a statutory competitive bidding requirement. He sought
declaratory relief based on a single specific allegation: that
the M.U.D. contract with Northern and those which preceded
it “have been entered into without complying with the bidding
statutes and common law bidding requirements.” As we have
noted, the district court correctly determined that there was
no statutory requirement for competitive bidding and properly
declined to judicially impose such a requirement on public
policy grounds. We conclude that the district court disposed of
all claims raised by Bruno’s complaint.
[9] Finally, Bruno argues that the district court erred in dis­
missing his complaint. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient
facts, accepted as true, to state a claim to relief that is plausible
on its face.21 In cases in which a plaintiff does not or cannot
allege specific facts showing a necessary element, the factual
allegations, taken as true, are nonetheless plausible if they
suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim.22 Bruno’s claim rested entirely on the single issue
of whether the law required M.U.D. to seek competitive bids
before entering into the agreement with Northern. The district
court correctly determined that it did not. Bruno’s claim to
relief was not plausible on its face, because its legal prem­
ise was incorrect. The district court did not err in dismissing
his complaint.
CONCLUSION
For the reasons discussed, the judgment of the district court
is affirmed.
Affirmed.
Miller-Lerman, J., not participating.
21
Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
22
Id.