Salem Grain Company, Inc., a Nebraska corporation, et al., appellants,
City of Falls City et al., appellees.
Declaratory Judgments: Appeal and Error. In
an appeal from a declaratory judgment, an appellate court,
regarding questions of law, has an obligation to reach its
conclusion independently of the conclusion reached by the
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Actions: Equity: Public Meetings: Appeal and
Error. An appellate court reviews actions for relief
under the Open Meetings Act in equity because the relief
sought is in the nature of a declaration that action taken in
violation of the act is void or voidable.
Equity: Appeal and Error. On appeal from an
equity action, an appellate court tries factual questions de
novo on the record and, as to questions of both fact and law,
is obligated to reach a conclusion independent of the
conclusion reached by the trial court. But when credible
evidence is in conflict on material issues of fact, an
appellate court may give weight to the fact the trial court
observed the witnesses and accepted one version of the facts
Statutes. Statutes relating to the same
subject, though enacted at different times, are in pari
materia and should be construed together.
Statutes: Legislature: Intent. Statutes
relating to the same subject should be construed together to
determine the intent of the Legislature, so that different
provisions are consistent, harmonious, and sensible.
___: ___. When two statutes are capable of coexistence, it is
the duty of the courts, absent a clearly expressed
legislative intention to [302 Neb. 549] the contrary, to
regard each as effective, and to harmonize overlapping
statutes so long as each reaches some distinct cases.
Statutes. Where it is possible to harmonize
apparently conflicting statutes, a court should do so.
Actions: Bonds: Contracts: Statutes: Presumptions:
Time. Construed together, Neb. Rev. Stat.
§§ 18-2129 and 18-2142.01 (Reissue 2012)
effectively provide that any suit, action, or proceeding
brought outside the 30-day period established in §
18-2142.01 will be subject to the conclusive presumptions
required by §§ 18-2129 and 18-2142.01, as long as
the action is one challenging the validity or enforceability
of a redevelopment bond or contract and the bond or contract
recites in substance the language required by the statutes.
Statutes: Legislature: Intent. In the
absence of clear legislative intent, a construction of a
statute will not be adopted which has the effect of
nullifying or repealing another statute.
Statutes. It is not within the province of
the courts to read a meaning into a statute which is not
Pleadings. An affirmative defense raises a
new matter which, assuming the allegations in the petition or
complaint to be true, constitutes a defense to the merits of
a claim asserted in the petition. An affirmative defense
generally avoids, rather than negates, the plaintiff's
prima facie case.
Statutes: Presumptions: Limitations of
Actions. A statute providing a conclusive
presumption is very different from a statute of limitations,
and the conclusive presumptions under Neb. Rev. Stat.
§§ 18-2129 and 18-2142.01 (Reissue 2012) are not
statutes of limitation.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by these rules; judicial discretion is involved
only when the rules make discretion a factor in determining
Judges: Evidence: Appeal and Error. The
exercise of judicial discretion is implicit in determining
the relevance of evidence, and an appellate court will not
reverse a trial court's decision regarding relevance
absent an abuse of discretion.
Judges: Words and Phrases. A judicial abuse
of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters
submitted for disposition.
Evidence: Words and
Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence.
Neb. 550] Appeal from the District Court for Richardson
County: Daniel E. Bryan, Jr., Judge.
Stephen D. Mossman, Ryan K. Mcintosh, and J.L. Spray, of
Mattson Ricketts Law Firm, for appellants.
M. Guthery, Jeanette Stull, and Derek A. Aldridge, of Perry,
Guthery, Haase & Gessford, P.C., L.L.O., for appellee
Community Redevelopment Authority of the City of Falls City.
C. Dougherty, Kari A.F. Scheer, and Audrey R. Svane, of Woods
& Aitken, L.L.P, for appellee Consolidated Grain and
Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.P, for
appellee City of Falls City.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
the latest in a series of appeals involving litigation over a
redevelopment project in the City of Falls City,
Nebraska. In this case, the plaintiffs filed suit
seeking a declaratory judgment that the redevelopment project
was not planned or adopted in accordance with the Community
Development Law and requesting a permanent injunction to
prevent the project from proceeding. Most of the
plaintiffs' claims were dismissed on summary judgment,
and the remaining claims were dismissed after a bench trial.
The plaintiffs appeal. Although our reasoning differs from
that of the district court, we affirm.
Neb. 551] I. BACKGROUND
City is a community located in Richardson County. Nebraska.
Pursuant to the Community Development Law. Falls City created
the five-member Falls City Community Redevelopment Authority
(the Authority) to redevelop blighted or substandard areas
within Falls City.
2012, Consolidated Grain and Barge Co. (Consolidated Grain)
proposed a redevelopment project that involved constructing a
new commercial grain receiving, storage, and shipping
facility in Falls City using tax increment financing (TIF).
The owner of another commercial grain facility in the area,
Salem Grain Company, Inc. (Salem Grain), opposed the
the summer and fall of 2012, land for the redevelopment
project was annexed by Falls City, a zoning change was
recommended and approved for the annexed land, a study was
conducted upon which the land was declared blighted and
substandard, a cost-benefit analysis was conducted, and a
redevelopment plan was prepared. Ultimately, in September and
October 2012, the redevelopment project was approved at
separate public meetings of the Authority, the city council
of Falls City, and the planning commission of Falls City.
November 10, 2012, the Authority and Consolidated Grain
formally entered into a redevelopment contract. Summarized,
the redevelopment contract required Consolidated Grain to
acquire the land for the project and construct the grain
facility, and in exchange, the Authority agreed to enter into
and utilize TIF indebtedness to fund a portion of the
project. Thereafter, a TIF bond in the amount of $3, 710, 000
was issued by the Authority and sold to Consolidated Grain.
The bond funds were disbursed to Consolidated Grain pursuant
to the redevelopment contract. Roughly 1 year later,
Consolidated [302 Neb. 552] Grain completed construction of
the commercial grain facility and began business operations.
October 24, 2012, approximately 2 weeks before the
redevelopment contract was formally entered into, Salem Grain
and two residents of Falls City (collectively Salem Grain)
filed a lawsuit against the City of Falls City, the
Authority, and Consolidated Grain in the district court for
Richardson County, Nebraska. The complaint sought declaratory
and injunctive relief and was styled as 12 separate causes of
first 11 causes of action sought declarations that the
redevelopment project had not been planned and adopted in
accordance with the Community Development Law, alleging
specifically that (1) the blighted and substandard study was
insufficient, (2) the redevelopment plan did not conform to a
'"general plan'" for the development of
Falls City, (3) the Authority acted without a quorum at
several key meetings, (4) the cost-benefit analysis was
insufficient, (5) it was improper to include TIF in the
redevelopment plan, (6) the redevelopment plan was improperly
adopted by the city council, (7) the redevelopment plan was
improperly adopted by the Authority, (8) the city council
impermissibly renamed a portion of the platted land included
in the redevelopment project, (9) Falls City provided an
insufficient public comment period regarding its plan to
finance the redevelopment project using community development
block grant program funds, (10) the Authority's adoption
of the resolution approving TIF was null and void, and (11)
the land for the redevelopment project was improperly
annexed. Salem Grain's 12th cause of action sought to
equitably estop the city council from asserting that the
redevelopment project was not feasible without TIF funding.
prayer for relief sought (1) declarations that the
redevelopment project was not properly planned or adopted for
all of the reasons alleged in the various causes of action;
(2) a [302 Neb. 553] declaration that because the project was
not properly adopted, the "Redevelopment Contract, and
any bonds issued thereto, are null and void"; and (3) a
permanent injunction blocking the redevelopment project from
City, the Authority, and Consolidated Grain (collectively the
defendants) moved to dismiss the original complaint for
reasons that are not relevant to the issues on appeal. The
district court granted the motion to dismiss, and Salem Grain
was given leave to file an amended complaint.
amended complaint was filed January 22, 2013, and is the
operative complaint in this action. Like the original
complaint, the amended complaint was styled as 12 causes of
action. The first 11 sought declarations that the
redevelopment project had not been planned and adopted in
accordance with the Community Development Law for generally
the same reasons alleged in the original complaint.
12th cause of action alleged the Authority held two meetings
which violated Nebraska's Open Meetings Act(NOMA), and it
sought to have the actions taken during those meetings
declared void. The first meeting allegedly occurred on
August 15, 2012, when three members of the Authority attended
a community dinner that included the mayor, members of the
city council, community business leaders, and representatives
from Consolidated Grain. The second meeting allegedly
occurred on November 9, in the context of email
communications between members of the Authority.
the original complaint, the amended complaint sought (1)
declarations that the redevelopment project was not properly
adopted for all of the reasons alleged in the various causes
of action; (2) a declaration that because the project was not
properly adopted the "Redevelopment Contract, and any
bonds issued thereto, are null and void"; and (3) a
permanent [302 Neb. 554] injunction blocking the
redevelopment project from proceeding. In addition, the
amended complaint sought a declaration that any formal action
taken by the Authority in violation of NOMA was
the amended complaint was filed, the court dismissed the 11th
cause of action for reasons that are not relevant to the
issues on appeal. Thereafter, answers were filed and the
defendants proceeded to defend the amended complaint on the
merits. Due to the procedural complexity of this case, we
discuss only that which relates to the issues raised on
Completion of Redevelopment Project While the lawsuit was
pending, the redevelopment project was completed. It is
undisputed that the project was completed in September 2013
and that Consolidated Grain has been operating the commercial
grain receiving, storage, and shipping facility since that
Motion to File Second Amended Complaint
December 17, 2015, nearly 2 years after completion of the
redevelopment project, Salem Grain tried unsuccessfully to
further amend its complaint. The proposed second amended
complaint sought to add claims of "improper economic
development" and "unjust enrichment" resulting
from the TIF funds provided to Consolidated Grain. The
proposed second amended complaint also sought to alter the
nature of the relief being requested; rather than seeking
injunctive relief to prevent the redevelopment project from
proceeding, the proposed second amended complaint sought
"[r]ecission, recoupment and restitution" of the
TIF funds paid to Consolidated Grain.
hearing, the district court denied leave to amend, finding
that Salem Grain's request was unnecessarily delayed and
that the proposed amendment would be unduly prejudicial to
Neb. 555] (e) Summary Judgment
April 2016, the defendants moved for summary judgment on the
amended complaint, claiming the requested declaratory and
injunctive relief had been rendered moot by completion of the
redevelopment project. The district court agreed and granted
partial summary judgment in favor of the defendants on Salem
Grain's first 10 causes of action. But the court denied
summary judgment on the 12th cause of action alleging NOMA
violations, reasoning that the completion of the
redevelopment project had not rendered the NOMA claims moot.
A bench trial was set to resolve the remaining NOMA claims.
Motion to File Third Amended Complaint
date for the bench trial neared, Salem Grain filed a motion
to continue trial and again requested leave to further amend
its complaint. Salem Grain's proposed third amended
complaint was substantially similar to the proposed second
amended complaint which had not been permitted, but it
alleged several additional NOMA violations. The district
court overruled the motion to amend and refused to continue
the bench trial.
bench trial on the alleged NOMA violations was held on
February 9, 2017. Salem Grain tried to offer evidence related
to several alleged NOMA violations, but the defendants
objected on relevancy grounds and the district court limited
the evidence to the violations alleged in the operative
complaint: the August 15, 2012, dinner and the November 9,
2012, email communications.
Grain argued that both the August 15, 2012, dinner and the
November 9 email communications were "meetings" of
the Authority under § 84-1409, and it sought to have any
action taken on the redevelopment project during these
meetings declared void under § 84-1414. After
considering the evidence, [302 Neb. 556] the district court
concluded that neither event was a meeting of the Authority
the dinner, the district court found it was hosted by the
Falls City Economic Development and Growth Enterprise, and
was attended by many Falls City community leaders, including
three members of the Authority. At the dinner, which some
witnesses described as a "meet-and-greet,"
Consolidated Grain gave a presentation regarding its interest
in constructing the grain facility. Salem Grain argued that
because of the presentation, members of the Authority were
essentially "brief[ed]" by Consolidated Grain
during the dinner and later used that information to approve
the redevelopment project. The district court found the
dinner was not a meeting that required compliance with NOMA,
reasoning that there was insufficient evidence regarding the
substance of the information actually presented at the dinner
and that there was no direct evidence any Authority member
used the information in later approving the redevelopment
the November 9, 2012, email communications, the court found
an email had been sent by the Authority's chairman to all
Authority members. The email advised that Salem Grain had
recently filed a lawsuit and told the members that the
chairman intended to proceed with executing the redevelopment
contract with Consolidated Grain, but that he would be adding
amendments recommended by counsel to (1) disclose the lawsuit
and (2) add language to the existing indemnification
provision. Prior to November 9, the Authority had approved
the redevelopment contract with Consolidated Grain during a
public meeting and had adopted a resolution authorizing the
chairman to "take any and all actions, and to execute
any and all documents" deemed necessary to conclude the
transaction. The chairman's November 9 email stated:
Should any [Authority] member find need to discuss and/or act
upon these matters, notice needs to be provided to me by 8 pm
today (11/9/12) so that I may schedule a special meeting for
that purpose. Otherwise, you are [302 Neb. 557] hereby
notified that I intend to execute the Redevelopment Contract
as previously authorized by the [Authority] with the above
cited immaterial changes recommended by legal counsel and
proceed with the issuance of bonds and a TIF Grant to
Consolidated Grain ....
members of the Authority responded via email to the chairman,
indicating that a special meeting was not necessary and that
the chairman could proceed to execute the redevelopment
contract pursuant to the earlier resolution. The district
court found this email exchange was not a "meeting"
as defined in § 84-1409(2), reasoning that no new action
was taken or authorized by the Authority during this exchange
beyond that which already had been taken or authorized during
the earlier public meeting.
concluding Salem Grain had not met its burden of proving
either alleged violation of NOMA, the court entered an order
dismissing the action. No attorney fees were allowed. Salem
Grain timely appealed, and we moved the case to our docket.
ASSIGNMENTS OF ERROR
Grain assigns, restated, that the district court erred in (1)
making certain discovery rulings, (2) denying Salem Grain
leave to file a second amended complaint, (3) granting the
defendants' motion for partial summary judgment, (4)
denying Salem Grain leave to file a third amended complaint,
(5) denying Salem Grain's motion to continue trial, (6)
excluding evidence of additional NOMA violations at trial,
and (7) dismissing the NOMA claims after trial.
STANDARD OF REVIEW
appeal from a declaratory judgment, an appellate court,
regarding questions of law, has an obligation to reach its
conclusion independently of the conclusion reached by the
trial court. Statutory interpretation presents a
question of [302 Neb. 558] law, for which an appellate court
has an obligation to ...