Butler Cty. Sch. Dist. v. Freeholder

Nebraska Advance Sheets
814 286 NEBRASKA REPORTS
Butler County School District 12-0502, also known as
East Butler Public School District, a political subdivision
of the State of Nebraska, appellant, and Brenda Coufal,
an individual resident taxpayer of Butler County
School District 12-0502, also known as East
Butler Public School District, appellee, v.
Freeholder P etitioners 1 through 10:
Fern Jansa et al., appellees.
___ N.W.2d ___
Filed November 8, 2013. No. S-13-123.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Jurisdiction. For the prior jurisdiction rule to apply, there must be equiva-
lent proceedings.
Appeal from the District Court for Saunders County: Mary
C. Gilbride, Judge. Affirmed.
Rex R. Schultze and Derek A. Aldridge, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellant.
Maureen Freeman-Caddy, of Bromm, Lindahl, Freeman-
Caddy & Lausterer, for appellees Fern Jansa et al.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
This case has previously been before this court. See Butler
Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814
N.W.2d 724 (2012) (East Butler I). The underlying case stems
from petitions filed by freeholders, the appellees, before the
Saunders County freeholder board (the Board) in which they
successfully sought to move their property from the Prague
Public School District (Prague District) to the Wahoo Public
School District (Wahoo District). Butler County School District
12-0502, also known as the East Butler Public School District
(East Butler), the appellant, objects to the appellees’ petitions
Nebraska Advance Sheets
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 815
Cite as 286 Neb. 814
primarily because East Butler, along with the Prague District,
had a petition pending before the State Committee for the
Reorganization of School Districts (Reorganization Committee)
involving a proposed merger at the time the appellees filed
their freeholder petitions. The merger plan encompassed the
appellees’ property.
In East Butler I, we concluded, inter alia, that East Butler
had standing to appeal the Board’s decision and we remanded
the cause to the district court before which the appeal from the
Board’s decision was pending. Following remand, the district
court rejected East Butler’s argument that the Board lacked
jurisdiction. East Butler contended that the Reorganization
Committee had exclusive jurisdiction to act under the “prior
jurisdiction rule.” The district court determined, inter alia, that
the prior jurisdiction rule did not apply to this case and that
the Board had jurisdiction over the appellees’ freeholder peti-
tions. The district court affirmed the Board’s order. East Butler
appeals. We affirm.
STATEMENT OF FACTS
In East Butler I, we set forth the facts by stating:
The district court summarized the facts as follows:
•  n April 13, 2010, East Butler and the Prague District
O
filed a petition and plan for dissolution and merger with
the Reorganization Committee.
•  n April 20, 2010, the appellees filed freeholder peti-
O
tions with the Board seeking to remove property owned
by them from the Prague District and move it to the
Wahoo District.
•  n May 14, 2010, the Reorganization Committee
O
approved the dissolution and merger and entered an
order merging East Butler and the Prague District. This
order did not become effective immediately.
•  n May 17, 2010, the Board granted the appellees’ peti-
O
tions to move their property into the Wahoo District.
•  n June 10 [sic], 2010, the merger of East Butler and
O
the Prague District became effective.
•  n July 1, 2010, East Butler appealed [the Board’s
O
decision] to the district court. In the appeal, East Butler
Nebraska Advance Sheets
816 286 NEBRASKA REPORTS
sought vacation or reversal of the Board’s order. It
alleged that the Board lacked jurisdiction because the
Reorganization Committee had exclusive jurisdiction
over the matter or that the Reorganization Committee
had prior jurisdiction to act under the prior jurisdic-
tion rule.
The district court dismissed the appeal for lack of
jurisdiction. It found that East Butler had not complied
with [Neb. Rev. Stat.] § 79-458(5) [Reissue 2008] when
that section was read in pari materia with Neb. Rev. Stat.
§ 23-136 (Reissue 2007). Section 79-458(5) permits a
party to appeal from an action of a freeholder board in
the same manner that a party can appeal from a county
board’s allowance or disallowance of a claim. The court
read § 79-458(5) to require a party to comply with the
time limit to appeal under § 23-136, which governs
appeals from a county board’s allowance of a claim.
Because East Butler did not appeal within the 10 days
specified for appeals under § 23-136, the court deter-
mined that it did not acquire jurisdiction over the appeal.
In addition, citing case law holding that a school district
cannot maintain an action to challenge its boundaries, the
court found that East Butler lacked standing.
283 Neb. at 905-06, 814 N.W.2d at 727.
At the Board’s hearing held on May 17, 2010, regarding
the appellees’ freeholder petitions, the appellees were repre-
sented by counsel and presented evidence. The superintendent
for the Prague District, along with counsel, also attended the
Board’s hearing. The Prague District’s attorney presented evi-
dence and testified in opposition to the appellees’ freeholder
petitions, arguing that the Board lacked jurisdiction over
the petitions.
As stated above, East Butler appealed the Board’s decision
approving the appellees’ freeholder petitions to the district
court. The district court held a hearing on October 4, 2010, at
which East Butler’s and the appellees’ attorneys were present
and evidence was received. On March 14, 2011, the district
court held a hearing on the appellees’ motion to dismiss and
conducted a trial. At the March 14 combined hearing and trial,
Nebraska Advance Sheets
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 817
Cite as 286 Neb. 814
East Butler’s attorney offered and the district court received
the certified transcript from the Board’s May 17, 2010, hearing.
The appellees’ attorney offered exhibits that the district court
received, including the agendas and minutes from two meet-
ings held by the East Butler school board and a general billing
statement for services rendered from a law firm to East Butler.
At the March 14, 2011, hearing and trial in district court, East
Butler’s attorney stated that
[t]his case is, for purposes of East Butler, really is not
dealing with the freeholder’s petition [sic], it’s not chal-
lenging the freeholder’s petition [sic] directly. This has
more to do with seeking to enforce the order of the
[Reorganization Committee] and that the [Reorganization
Committee] had exclusive jurisdictions [sic] to hear that
order and consolidate the school districts, exclusive of
the . . . Board.
At the March 14, 2011, hearing and trial in district court,
the appellees’ attorney called two witnesses: a taxpayer in
the East Butler school district and the superintendent of East
Butler Public Schools. The superintendent testified that he did
not exactly recall when he learned of the appellees’ intention to
file freeholder petitions but that he “believe[d] this started even
at the end of 2009 and into 2010,” which is before East Butler
and the Prague District filed their petition and plan for dissolu-
tion and merger with the Reorganization Committee on April
13, 2010. The superintendent further testified that the appel-
lees’ freeholder petitions “had been a concern from the very
beginning when we [East Butler and the Prague District] were
looking at merging.” In this regard, we note that the record
shows the merger petition filed before the Reorganization
Committee excluded from the merger result freeholders who
had already filed freeholder petitions prior to the filing of the
merger petition. The merger petition did not, however, make
provision for freeholders who might file after the merger peti-
tion was filed and whose freeholder petitions might be pending
while the merger petition was under consideration before the
Reorganization Committee.
As stated above, the district court determined that East
Butler lacked standing and that the appeal was untimely, and
Nebraska Advance Sheets
818 286 NEBRASKA REPORTS
therefore dismissed East Butler’s appeal for lack of jurisdic-
tion. East Butler appealed, resulting in our decision in East
Butler I. With regard to standing in East Butler I, we stated
that “because East Butler had a valid merger petition that
involved the same property pending at the time of the appel-
lees’ freeholder petitions, it had sufficient interest in the matter
to invoke the court’s jurisdiction” and we therefore concluded
that East Butler had standing to appeal. 283 Neb. at 905, 814
N.W.2d at 726-27. With regard to the timeliness of the appeal
in East Butler I, we determined that East Butler’s appeal was
timely under Neb. Rev. Stat. § 79-458(5) (Reissue 2008),
which provides that appeals may be taken from the action of
a freeholder board on or before August 10. Our ruling was
based on the record that showed the Board had rendered its
decision on May 17, 2010, and East Butler had appealed to
the district court on July 1, which was before the August 10
deadline. Accordingly, in East Butler I, we reversed the dis-
trict court’s order of dismissal and remanded the cause for
further proceedings.
On remand, the case was submitted to the district court on
the record which had been made leading to East Butler I. East
Butler argued to the district court that the Board lacked juris-
diction because the Reorganization Committee had prior juris-
diction to act under the common-law “prior jurisdiction rule.”
In its order filed January 22, 2013, the district court stated that
the “application of the prior jurisdiction rule is not appropriate”
in this case and that the Board had jurisdiction over the appel-
lees’ freeholder petitions. The district court considered the
factors underlying application of the prior jurisdiction rule and
determined application of the prior jurisdiction rule was not
warranted, inter alia, because the two actions were not equiva-
lent, i.e., one action was a school reorganization case, and the
other action was a freeholder petition case. The district court
also based its decision on the language of § 79-458 as amended
in 2007 apparently in support of its finding that the appellees’
freeholder petitions, when filed, were to remove land from an
existing school district. The district court affirmed the Board’s
order granting the freeholder petitions.
East Butler appeals.
Nebraska Advance Sheets
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 819
Cite as 286 Neb. 814
ASSIGNMENTS OF ERROR
East Butler claims on appeal, restated, that the district court
erred when it (1) determined that the prior jurisdiction rule was
not applicable and (2) concluded that the Board had jurisdic-
tion to hear the appellees’ freeholder petitions.
STANDARDS OF REVIEW
[1,2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. Holdsworth v. Greenwood Farmers Co-op, ante p. 49, 835
N.W.2d 30 (2013). We independently review questions of law
decided by a lower court. Pinnacle Enters. v. City of Papillion,
ante p. 322, 836 N.W.2d 588 (2013).
ANALYSIS
East Butler argues that the district court should have adopted
and applied the prior jurisdiction rule and that because East
Butler took the first valid step, the court should have deter-
mined that under the prior jurisdiction rule, the Reorganization
Committee had “exclusive” jurisdiction over the property at
issue. Brief for appellant at 18. East Butler thus claims that
because the Reorganization Committee had “exclusive” juris-
diction under the prior jurisdiction rule, the district court erred
when it determined that the Board had jurisdiction to hear the
appellees’ freeholder petitions. East Butler does not rely on a
statutory basis in support of its assigned errors.
There are no factual disputes regarding the jurisdictional
question before us, so we independently review the district
court’s decision as a matter of law. See, Pinnacle Enters. v. City
of Papillion, supra; Holdsworth v. Greenwood Farmers Co-op,
supra. We reject East Butler’s argument that the prior juris-
diction rule applies to this case and conclude that the district
court did not err when it declined to adopt or apply the prior
jurisdiction rule. We further conclude that the district court did
not err when it determined that the Board had jurisdiction over
the appellees’ freeholder petitions. For completeness, we note
that East Butler does not assign as error the district court’s
determination on the merits affirming the Board’s grant of the
appellees’ freeholder petitions. Accordingly, we affirm.
Nebraska Advance Sheets
820 286 NEBRASKA REPORTS
We note that it was not necessary to consider the appli-
cation of the prior jurisdiction rule in East Butler I. And
although we have not previously adopted the prior jurisdic-
tion rule, we discussed the rule in an annexation case, City
of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792
(2007). In City of Elkhorn, we described the prior jurisdiction
rule as it related to the subject of annexation by stating:
Under the prior jurisdiction rule, when two public bod-
ies claim jurisdiction over the same territory in annexa-
tion proceedings, the public body which takes the first
valid step toward annexation has the superior claim. And
it may complete its proceedings if it acts promptly and in
accordance with statutory requirements.
272 Neb. at 883, 725 N.W.2d at 807.
In City of Elkhorn, we stated that “[w]e need not determine
whether to adopt the prior jurisdiction rule because we con-
clude that the rule is not applicable when different territories
are the subject of the competing annexations.” 272 Neb. at
884, 725 N.W.2d at 807. We further noted that “some courts
have declined to apply the prior jurisdiction rule as antiquated
or superseded by statutory procedures.” Id. (citing cases). The
cases cited generally show that priority between competing
annexation proceedings has been resolved by statutes.
When describing the prior jurisdiction rule in City of
Elkhorn, we cited to Eugene McQuillin’s treatise, “The Law of
Municipal Corporations.” The treatise describes the prior juris-
diction rule generally and thereafter focuses on the elements
necessary for its application. This treatise introduces the prior
jurisdiction rule by stating:
The rule that among separate equivalent proceed-
ings relating to the same subject matter, that one which
is prior in time is prior in jurisdiction to the exclu-
sion of those subsequently instituted, applies, generally
speaking, to and among proceedings for the municipal
incorporation, annexation, or consolidation of a particu-
lar territory.
2 Eugene McQuillin, The Law of Municipal Corporations
§ 7:39 at 674-76 (3d ed. 2006). See, also, 62 C.J.S. Municipal
Corporations § 76 at 94 (2011) (stating that “‘prior pending
Nebraska Advance Sheets
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 821
Cite as 286 Neb. 814
proceedings rule’ provides that where two municipalities
attempt to annex the same area at approximately the same
time, the legal proceedings first instituted, if valid, have pri-
ority, but there must be equivalent proceedings”) (emphasis
supplied). In addition to municipal corporations, the prior
jurisdiction rule has been applied to cases involving compet-
ing school districts. See, e.g., State v. Reorganized District
No. 11, 307 S.W.2d 501 (Mo. 1957) (in action brought
between competing school districts and other parties, writ of
quo warranto issued based on application of prior jurisdic-
tion rule).
Following the introductory remarks, the treatise thereafter
focuses on the elements necessary to apply the prior juris-
diction rule, and it is the absence of the element of equiva-
lent proceedings which determines the outcome of this case.
McQuillin’s treatise states, “The prior jurisdiction rule applies
where the proceedings are equivalent. If they are not equiva-
lent, the prior jurisdiction rule does not apply.” 2 McQuillin,
supra, § 7:39 at 680.
The opinion in Yandle v. Mecklenburg County and
Mecklenburg County v. Town of Matthews, 85 N.C. App. 382,
355 S.E.2d 216 (1987), cited in McQuillin’s treatise, provides
an example of a case where the prior jurisdiction rule did
not apply because the proceedings at issue—a condemna-
tion matter and annexation matter—were not equivalent. In
Yandle, a county commenced eminent domain proceedings by
initiating condemnation of certain property that the county
intended to use as a landfill; however, the property at issue
was already being considered for voluntary annexation. The
North Carolina Court of Appeals determined that annexa-
tion proceedings and eminent domain proceedings were not
equivalent and that accordingly, the prior jurisdiction rule did
not apply.
The Yandle court stated the framework for its analysis
as follows:
The court below concluded that the prior jurisdiction
rule was applicable without first considering whether the
annexation and condemnation proceedings are “‘equiva-
lent proceedings relating to the same subject matter.’”
Nebraska Advance Sheets
822 286 NEBRASKA REPORTS
City of Burlington v. Town of Elon College, 310 N.C.
[723,] 727, 314 S.E.2d [534,] 537 [1984]. This conclu-
sion was in error. The court should have first made the
determination of whether the proceedings are equivalent.
If they are, the prior jurisdiction rule would apply. If they
are not equivalent, the court could not use the prior juris-
diction rule and must look elsewhere to determine how to
proceed. We hold that, for determining whether the prior
jurisdiction rule applies, eminent domain proceedings and
annexation proceedings are not equivalent.
85 N.C. App. at 388, 355 S.E.2d at 220.
In the present case, we first examine whether the merger
petition case and the freeholder petitions case are equivalent
proceedings and we conclude they are not. East Butler and the
Prague District initiated proceedings to reorganize and merge
their existing school districts into one public school district.
We have noted that there are two methods available to accom-
plish a school district reorganization: the election method and
the petition method. Nicholson v. Red Willow Cty. Sch. Dist.
No. 0170, 270 Neb. 140, 699 N.W.2d 25 (2005). The elec-
tion method, which was not utilized in this case, is governed
by Neb. Rev. Stat. §§ 79-432 to 79-451 (Reissue 2008). The
petition method is governed by Neb. Rev. Stat. §§ 79-413
to 79-422 (Reissue 2008 & Cum. Supp. 2012). The petition
method may be conducted in two ways: by petition signed by
the voters or by the actions of the boards of education for the
separate school districts. East Butler and the Prague District
utilized the latter petition method to initiate the merger and
reorganization proceedings under discussion. East Butler and
the Prague District filed their petition and plan for dissolution
and merger with the Reorganization Committee on April 13,
2010, under § 79-415(1), which provides:
In addition to the petitions of legal voters pursuant to sec-
tion 79-413, changes in boundaries and the creation of a
new school district may be initiated and accepted by the
school board or board of education of any district that is
not a member of a learning community.
The appellees, who are freeholders, petitioned to remove
their property from one school district and move the property
Nebraska Advance Sheets
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 823
Cite as 286 Neb. 814
to another district pursuant to § 79-458. Under § 79-458, the
appellees filed their freeholder petitions with the Board, com-
posed of the county assessor, county clerk, and county treas­
urer, on April 20, 2010, seeking to remove their property from
the Prague District and move it to the Wahoo District. Section
79-458 provides in part:
(1) Any freeholder or freeholders, person in posses-
sion or constructive possession as vendee pursuant to a
contract of sale of the fee, holder of a school land lease
under section 72-232, or entrant upon government land
who has not yet received a patent therefor may file a
petition on or before June 1 for all other years with a
board consisting of the county assessor, county clerk, and
county treasurer, asking to have any tract or tracts of land
described in the petition set off from an existing school
district in which the land is situated and attached to a dif-
ferent school district which is contiguous to such tract or
tracts of land if:
(a)(i) The school district in which the land is situated
is a Class II or III school district which has had an aver-
age daily membership in grades nine through twelve of
less than sixty for the two consecutive school fiscal years
immediately preceding the filing of the petition;
(ii) Such Class II or III school district has voted
pursuant to section 77-3444 to exceed the maximum
levy established pursuant to subdivision (2)(a) of section
77-3442, which vote is effective for the school fiscal year
in which the petition is filed or for the following school
fiscal year;
(iii) The high school in such Class II or III school
district is within fifteen miles on a maintained public
highway or maintained public road of another public high
school; and
(iv) Neither school district is a member of a learning
community; or
(b) Except as provided in subsection (7) of this section,
the school district in which the land is situated, regardless
of the class of school district, has approved a budget for
the school fiscal year in which the petition is filed that
Nebraska Advance Sheets
824 286 NEBRASKA REPORTS
will cause the combined levies for such school fiscal year,
except levies for bonded indebtedness approved by the
voters of such school district and levies for the refinanc-
ing of such bonded indebtedness, to exceed the greater of
(i) one dollar and twenty cents per one hundred dollars
of taxable valuation of property subject to the levy or (ii)
the maximum levy authorized by a vote pursuant to sec-
tion 77-3444.
For purposes of determining whether a tract of land is
contiguous, all petitions currently being considered by the
board shall be considered together as a whole.
[3] In the present case, we stated in East Butler I that the
appellees’ freeholder petitions involve the “same territory”
that was part of East Butler’s reorganization and merger plan.
283 Neb. at 904, 814 N.W.2d at 726. However, as stated
above, for the prior jurisdiction rule to apply, there must be
equivalent proceedings, and thus we examine the nature of the
two proceedings.
East Butler and the appellees initiated their proceedings
under different statutes, utilizing §§ 79-413 to 79-422 and
79-458, respectively. The two proceedings are subject to dif-
ferent deadlines; e.g., the freeholders must file their request by
June 1, § 79-458(1), whereas the Reorganization Committee
must rule on a petition by June 1, Neb. Rev. Stat. § 79-479(1)(b)
(Reissue 2008). The parties in the two proceedings are not
identical. The initial proceedings are conducted before two
different entities, i.e., the Reorganization Committee and the
Board. The object of the school districts’ reorganization and
merger action was to merge the two existing school districts
of East Butler and the Prague District into one school district.
In contrast, the object of the appellees’ freeholder petitions
was to remove their property from one school district, namely
the Prague District, into another school district, namely the
Wahoo District.
The court in Yandle v. Mecklenburg County and Mecklenburg
County v. Town of Matthews, 85 N.C. App. 382, 355 S.E.2d
216 (1987), referred to Black’s Law Dictionary when dis-
cussing equivalent proceedings, and we find the definition
helpful. Black’s Law Dictionary 620 (9th ed. 2009) defines
Nebraska Advance Sheets
BUTLER CTY. SCH. DIST. v. FREEHOLDER PETITIONERS 825
Cite as 286 Neb. 814
“equivalent” as “1. Equal in value, force, amount, effect, or
significance. 2. Corresponding in effect or function; nearly
equal; virtually identical.” We cannot say that the proceedings
utilized by East Butler to reorganize and merge the two school
districts are equivalent to the proceedings utilized by the appel-
lees as freeholders to remove the appellees’ property from one
school district and move it into another school district. The two
proceedings are not equal in effect or significance. Because the
two proceedings are not equivalent, we conclude that the prior
jurisdiction rule, if adopted, would not apply to this case. The
district court did not err when it so concluded.
For completeness, we note that as indicated in the “Statement
of Facts” section, the school districts were present throughout
the proceedings in this freeholder case. The Prague District’s
superintendent was present along with counsel at the hear-
ing on the appellees’ petition before the Board on May 17,
2010. The Prague District’s attorney testified in opposition
to the appellees’ freeholder petitions and presented evidence.
Furthermore, East Butler was represented by counsel at the
hearings and trial before the district court on appeal in East
Butler I, on remand to the district court following our deci-
sion in East Butler I, and in the present appeal. Accordingly,
the school districts have been able to participate and make
their interests known throughout the proceedings regarding the
appellees’ freeholder petitions.
We do not find a statutory basis to reach the result urged by
East Butler, and we have concluded that the common-law prior
jurisdiction rule, if adopted, would not apply.
CONCLUSION
Because the prior jurisdiction rule, if adopted, does not
apply to this case, we determine that the district court did not
err when it determined that the Board had jurisdiction over
the appellees’ freeholder petitions and affirmed the decision of
the Board.
Affirmed.