Klaus P. Lindner, appellant,
Douglas Kindig, MAYOR OF THE ClTY OF La VlSTA, ET AL., APPELLEES.
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
___ . 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
Limitations of Actions. The determination of
which statute of limitations applies is a question of law.
Judgments: Appeal and Error. An appellate
court independently reviews questions of law decided by a
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.
. 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.
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.
___ . 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.
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.
. The time at which a cause of action accrues will differ
depending on the facts of the case.
from the District Court for Sarpy County: William B. Zastera,
Engdahl for appellant.
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.
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
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.
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.
§ 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 ...