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Craw v. City of Lincoln

Court of Appeals of Nebraska

June 20, 2017

John Craw, appellant,
v.
City of Lincoln, Nebraska, and John and Jane Doe(s) 1 through 10, appellees.

         1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. 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 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.

         3. Actions: Pleadings: Notice. Civil actions are controlled by a liberal pleading regime; a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief and is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted.

         4. Actions: Pleadings. The rationale for a liberal notice pleading standard in civil actions is that when a party has a valid claim, he or she should recover on it regardless of a failure to perceive the true basis of the claim at the pleading stage.

         5. Political Subdivisions Tort Claims Act. The Political Subdivisions Tort Claims Act specifically excludes claims arising out of any interference with contract rights.

         6. Property. A job is not the type of property for which inverse condemnation claims can be brought.

         [24 Neb.App. 789] 7. Due Process: Public Officers and Employees: Property: Contracts: Notice. A public employee's due process rights arise from a contractually created property right to continued employment. A public employee with a property interest in his employment has the right to due process of law, which requires that the employee be provided with oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to explain his or her side of the story.

         8. Political Subdivisions Tort Claims Act: Wages. A timely filing of a tort claim under the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), is not sufficient to satisfy the filing requirements of Neb. Rev. Stat. § 15-840 (Reissue 2012) for purposes of the application of the Nebraska Wage Payment and Collection Act, because the two underlying claims are separate and distinct.

         Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.

          Jeffery R. Kirkpatrick, Lincoln City Attorney, and Don W. Taute for appellees.

          Pirtle, Bishop, and Arterburn, Judges.

          Bishop, Judge.

         John Craw appeals from a district court order dismissing with prejudice his amended complaint against the City of Lincoln, Nebraska, and John and Jane Doe(s) 1 through 10, who were "employees and/or agents of the City." (The City of Lincoln and John and Jane Doe(s) 1 through 10 will collectively be referred to as "the City.") We affirm in part the district court's dismissal, and in part reverse and remand for further proceedings.

         BACKGROUND

         On October 30, 2013, Craw filed a complaint in the county court for Lancaster County against the City alleging four [24 Neb.App. 790] causes of action related to his employment and termination as the "PGA Professional for Holmes Golf Course" in Lincoln. His first cause of action alleged as follows: that he submitted a claim to the City pursuant to the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012), and his claim was denied; that "[d]uring the course of his work and employment with the City, " Craw was "misclassified as an independent contractor and was wrongfully terminated from his position as the PGA Professional for the Holmes Golf Course, the last engagement for which was to expire and/or be ready for renewal on April 30, 2012, " and his last day was October 30, 2011; that due to the City's negligence, Craw was damaged; and that he incurred damages including (1) past and future physical pain, mental suffering, and emotional distress, (2) past and future inconvenience, (3) damage to property, and (4) loss of use of property. His second cause of action alleged that the City damaged his property or property rights and deprived him of use of his property, entitling him to compensation under Neb. Const, art. I, § 21. His third cause of action alleged that he was entitled to recovery for his property damage pursuant to Neb. Rev. Stat. § 76-705 (Reissue 2009), because his property was damaged for public use without a condemnation proceeding. His fourth cause of action alleged "violations of the rights guaranteed to him by the Nebraska and United States[] Constitutions, by the statutes of the State of Nebraska and of the United States of America, all as regards civil rights and/ or discrimination."

         On May 28, 2014, the City filed a motion to dismiss Craw's complaint pursuant to both Neb. Ct. R. Pldg. § 6-1112(b)(1) (lack of subject matter jurisdiction) and § 6-1112(b)(6) (failure to state claim upon which relief can be granted).

         In a form journal entry and order filed on June 27, 2014, the county court granted the City's motion to dismiss. Craw was granted 2 weeks to file an amended complaint or a motion to transfer to the district court.

         [24 Neb.App. 791] On July 11, 2014, Craw, pursuant to Neb. Rev. Stat. § 25-2706 (Reissue 2016), filed a request to transfer the proceedings to the district court for Lancaster County, because the "relief requested, at least in part, is beyond the jurisdiction of [the county court] and exclusively within the jurisdiction of the District Court." The request for transfer motion was sustained on July 15. The proceedings were certified and transferred to the district court by the deputy clerk of the "Lancaster County Court" on August 29.

         On September 23, 2014, the City filed a motion to dismiss Craw's complaint in the district court pursuant to § 6-1112(b)(1)and(6).

         In an order filed on April 10, 2015, the district court granted the City's motion to dismiss Craw's complaint. The district court found that it lacked subject matter jurisdiction over Craw's third cause of action (which the court determined was a "statutory inverse condemnation claim") because § 76-705 requires that such actions be taken in the county court. The district court then found that Craw failed to state a claim upon which relief could be granted with regard to his first, second, and fourth causes of action, as discussed next.

         The district court labeled Craw's first cause of action a "tort claim"; however, the district court "seriously questioned]" whether Craw had "actually pled a tort claim as opposed to a claim based on contract." It said:

The only well-pled factual allegation in the Complaint is that [Craw's] engagement as the Holmes Golf Course PGA Professional was terminated prior to the time it was set to expire and/or be renewed. [Craw's] use of the term "engagement" . . . suggests a contract-based claim. However, [Craw] also seeks damages for physical pain, mental suffering, and emotional distress, which suggest a tort claim. As it stands, the scant factual allegations of the Complaint are insufficient to allow the court to determine the true nature of [Craw's] first cause of action.

         [24 Neb.App. 792] The district court found that the "difficulty in determining the type of claim that is actually pled" warranted dismissal without prejudice of Craw's first cause of action.

         The district court described Craw's second cause of action as a "constitutional inverse condemnation claim, " and it found that "[a]s alleged, [Craw's] engagement as the Holmes Park Golf Course PGA Professional is not the type of vested property right for which [a constitutional] inverse condemnation claim would lie" and such claim should be dismissed.

         As for Craw's fourth cause of action, the district court said that it was "some sort of constitutional violation" claim and that "[b]ecause [Craw] has not set forth any facts as to what constitutional rights have been violated and in what manner by [the City], " his conclusory allegations were insufficient to state a plausible claim to relief "[e]ven with ...


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