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Lindner v. Kindig

Supreme Court of Nebraska

May 27, 2016

Klaus P. Lindner, appellant,
v.
Douglas Kindig, MAYOR OF THE ClTY OF La VlSTA, ET AL., APPELLEES.

         1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         2.___: ___ . In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

         3. Limitations of Actions. The determination of which statute of limitations applies is a question of law.

         4. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         5. Summary Judgment. On a motion for summary judgment, the question is not how the factual issue is to be decided but whether any real issue of material fact exists.

         6. ___ . Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         7. Summary Judgment: Proof. A party moving for summary judgment makes a prima facie case for summary judgment by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial.

         8. ___: ___ . Once the moving party makes a prima facie case, the burden shifts to the party opposing the motion to produce admissible [293 Neb. 662] contradictory evidence showing the existence of a material issue of fact that prevents judgment as a matter of law. 9. Constitutional Law: Limitations of Actions. A constitutional claim can become time barred just as any other claim can.

         10. Limitations of Actions. The period of limitations begins to run upon the violation of a legal right, that is, when an aggrieved party has the right to institute and maintain suit.

         11. ___ . The time at which a cause of action accrues will differ depending on the facts of the case.

         Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed.

          K.C. Engdahl for appellant.

          Gerald L. Friedrichsen, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for appellees.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          MILLER-LERMAN, J.

         NATURE OF CASE

         This is the second time this case has been before us. On December 16, 2011, Klaus P. Lindner filed a complaint in the district court for Sarpy County against the City of La Vista, Nebraska (City), and its mayor and city council members (collectively appellees), seeking a declaratory judgment that ordinance No. 979, creating an offstreet parking district adjoining a Cabela's store, is unconstitutional. The district court found that the action was time barred and granted appellees' motion to dismiss. Lindner appealed. In Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013) (Lindner I), we determined that we could not tell from the face of Lindner's complaint when Lindner's cause of action accrued. Therefore, we reversed the judgment of the district court and remanded the cause for further proceedings.

         Upon remand, appellees filed a motion for summary judgment. A hearing was held at which evidence was received. [293 Neb. 663] On June 15, 2015, the district court filed an order in which it determined that the 4-year catchall limitations period set forth in Neb. Rev. Stat. § 25-212 (Cum. Supp. 2014) applied and that Lindner's action accrued more than 4 years before he filed his complaint. The district court identified several accrual dates, to wit, when appellees opted to pay for the cost of offstreet parking through general revenues and sales tax revenues, enacted ordinance No. 983 authorizing the issuance of general obligation bonds, issued the bonds, and first paid on the bonds. Because each of these events occurred greater than 4 years before Lindner filed his complaint, the district court granted appellees' motion for summary judgment. We determine that the district court did not err when it granted appellees' motion for summary judgment, and we affirm.

         STATEMENT OF FACTS

         In Lindner I, we set forth the facts underlying this case as follows:

On January 17, 2006, the City . . . passed and approved ordinance No. 979. The ordinance provided for "the creation of vehicle offstreet parking District No. 1 of the City" as authorized under Neb. Rev. Stat. § 19-3301 et seq. (Reissue 2012). According to the ordinance, the costs of the offstreet parking facilities-estimated by the city engineer to be $9 million-would be paid for from general taxes, special property taxes or assessments on property within the offstreet parking district, and/or general property taxes, with financing by issuance of the City's general obligation bonds.
On December 16, 2011, . . . Lindner, a resident of the City, filed a complaint against . . . appellees. . . . Lindner sought declaratory judgment and a declaration of the unconstitutionality of the ordinance. Lindner alleged that the ordinance violated the Nebraska Constitution in two ways: first, by paying for [293 Neb. 664] the costs through a general property tax levy in violation of article VIII, § 6, and second, by granting a Cabela's store a special benefit in violation of article III, § 18. . . . [H]e alleged that under the ordinance, appellees had agreed to pay for and bear the entire cost of the parking facilities directly benefiting the Cabela's store. Lindner believed that the cost was paid with sales tax revenues drawn from municipal general funds. . . . Lindner alleged that as a resident of the City, he was "aggrieved as a consequence of municipal revenues having been applied in an unconstitutional manner for the peculiar benefit of a private enterprise and in a manner which contravenes the constitutional prohibition on granting or establishment of special privileges and immunities."
Lindner therefore asked the district court to order and declare that "any and all agreements or practices as above detailed are null, void and unconstitutional" and to issue an order restraining and enjoining ongoing enforcement of or adherence to the ordinance. He also requested that appellees be ordered to impose and levy any necessary special assessments upon the property which was specially benefited by the parking facilities.
Appellees filed a motion to dismiss the complaint under Neb. Ct. R. Pldg. § 6-1112(b)(6). They alleged that the claim was barred by the "applicable time periods" for challenging the ordinance.
The district court granted appellees' motion to dismiss and dismissed the complaint with prejudice. The court reasoned that the complaint was subject to the 4-year catchall statute of limitations set forth in Neb. Rev. Stat. ยง 25-212 (Cum. Supp. 2012). The court determined that the limitations period began to run on the date that the ordinance was passed and approved- January 17, 2006-giving Lindner until January 17, 2010, to bring the current action. Because Lindner did not file the ...

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