Opinion
No. A-08-179.
Filed February 3, 2009.
Appeal from the District Court for Hamilton County: MICHAEL J. OWENS, Judge. Affirmed.
John F. Recknor and Steve Williams, of Recknor, Williams Wertz, for intervenors-appellants.
Michael J. Murphy, of Angle, Murphy, Valentino Campbell, P.C., for appellees Walter L. Goossen et al.
Timothy S. Sieh, York County Attorney, for appellee Freeholder's Board York County.
Michael H. Powell, Hamilton County Attorney, for appellee Freeholder's Board Hamilton County.
IRWIN, CARLSON, and CASSEL, Judges.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-402(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
INTRODUCTION
Several freeholders filed a petition requesting that their lands be transferred to a different school district. The freeholder's board denied the petition and the landowners appealed to district court, where the appellants intervened to oppose the petition. They now appeal the court's order granting the petition. We conclude that the board, and thus the district court, had jurisdiction to consider the petition and that the freeholders have fulfilled all the requirements contained Neb. Rev. Stat. § 79-458 (Cum. Supp. 2006) and are therefore entitled to transfer their land. We therefore affirm the decision of the district court.
BACKGROUND
In August 2006, the freeholders, Walter L. Goossen, Darlene Goossen, Brenda J. Beitler, Charles D. Goossen, Jeanine L. Gray, and Bradley J. Goossen filed a petition with the Freeholder's Board York/Hamilton County (the Board) to request that three tracts of land be transferred from Hampton School District (Hampton) to Heartland Community Schools (Heartland). Because the requested transfer would cross county lines, the Board was composed of the county assessors, county clerks, and county treasurers from both counties. In the petition, the freeholders failed to allege that neither Heartland nor Hampton was a member of a learning community.
On September 27, 2006, the Board heard the freeholders' petition. At the beginning of the proceeding, the Board's chairperson read aloud the requirements of § 79-458. At that time, the chairperson failed to state that § 79-458 required the freeholders to prove that neither Heartland nor Hampton was a member of a learning community. During closing arguments, counsel for Hampton pointed out that the applicable version of § 79-458 required this. The freeholders then requested that the Board grant them leave to amend their petition to reflect § 79-458 and permit them to offer further evidence. The Board passed a motion to decide the case on the testimony already in front of it and denied the freeholders' petition.
The freeholders subsequently appealed and filed a petition in error in district court. The court permitted Phil Troester, Dale Young, Gene Winter, and Karen Bamesberger (the appellants) to intervene in opposition to the petition. The district court granted the freeholders leave to file an amended petition, which included an allegation that neither school district was a member of a learning community. The freeholders filed the amended petition on November 13, 2007. The district court heard the case de novo, determined that the freeholders had complied with the requirements of § 79-458, and ordered that the three tracts be transferred from Hampton to Heartland.
At the hearing, the parties adduced evidence supporting their respective positions. The freeholders offered into evidence exhibits which had previously been offered at the freeholders' hearing. The appellants attempted to limit the purposes for which these documents could be considered. The appellants also called Holly Herzberg, superintendent of Hampton to testify. When the freeholders cross-examined Herzberg regarding whether her district belonged to a learning community, the appellants objected to the testimony as beyond the scope of direct examination. This objection was overruled. Finally, after the freeholders had rested, they moved to reopen so that they could offer exhibit 1, a transcription of the proceedings before the Board. The court granted this request. We will discuss the remainder of the evidence in the analysis section as it is pertinent to the errors assigned.
In an order dated January 16, 2008, the court granted the freeholders' petition and ordered that the three tracts of land be transferred from Hampton to Heartland.
This timely appeal followed.
ASSIGNMENTS OF ERROR
The appellants allege 12 assignments of error, which we consolidate and restate into 6 assignments, in which the appellants claim that the district court erred (1) in failing to recognize that the Board lacked subject matter jurisdiction, (2) in permitting the freeholders to file an amended petition, (3) in granting the freeholders' motion to reopen their case in chief, (4) in permitting Herzberg to testify beyond the scope of direct examination, (5) in failing to apply a de novo standard of review, and (6) in finding that the freeholders proved the statutory requirements of § 79-458.
STANDARD OF REVIEW
Subject matter jurisdiction is a question of law for the court, which requires an appellate court to reach a conclusion independent of the lower court's decision. Gilbert Martha Hitchcock Found. v. Kountze, 275 Neb. 978, 751 N.W.2d 129 (2008).
The reopening of a case to receive additional evidence is a matter within the discretion of the district court and will not be disturbed on appeal in the absence of an abuse of that discretion. Jessen v. DeFord, 3 Neb. App. 940, 536 N.W.2d 68 (1995). See Corman v. Musselman, 232 Neb. 159, 439 N.W.2d 781 (1989).
In determining the admissibility of evidence, the exercise of judicial discretion is implicit in determinations of relevancy and admissibility, and the trial court's decision will not be reversed absent an abuse of discretion. Caguioa v. Fellman, 275 Neb. 455, 747 N.W.2d 623 (2008).
The actions of a county freeholder board under § 79-458 sound in equity. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, ___ N.W.2d ___(2009). On appeal from an equity action, an appellate court resolves questions of law and fact independently of the trial court's determinations. Id.
ANALYSIS
Jurisdiction.
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
The appellants argue that the Board did not have jurisdiction to consider the freeholders' petition because the freeholders failed to allege in their original petition filed with the Board that neither school district was a member of a learning community. The version of § 79-458 in effect at the time of the Board's proceedings required that a freeholder's petition make this allegation. The version of § 79-458(2) then in effect provided as follows:
The petition shall state the reasons for the proposed change and shall show with reference to the land of each petitioner: . . . (b) that the land described in the petition is located in a Class II or III district that is not a member of a learning community . . . and the land is to be attached to an accredited school district which is contiguous to such tract or tracts of land and which is not a member of a learning community. . . .
Our decision on this issue is controlled by the decision of the Nebraska Supreme Court in Koch v. Cedar Cty. Freeholder Bd., supra, which is factually indistinguishable from the case before us. We digress to note that the Koch opinion was released after oral arguments were heard in the case before us. As the court stated in Koch, the failure to plead that neither district was a member of a learning community creates a deficiency in the pleading. However, in Koch the court decided such a defect contained in a freeholder's petition filed with a freeholder's board in September 2006 did not prevent the board from acquiring jurisdiction. The court reasoned that this was so because it was "a legal impossibility for either school district to be part of a learning community" in September 2006. Id. at 1016, ___ N.W.2d at ___. The court noted that the applicable law would not permit a school district to form a learning community until March 1, 2007. Because the freeholders in the instant case filed their petition with the Board in August 2006, we likewise conclude that the freeholders' failure to allege that neither Hampton nor Heartland was a member of a learning community did not defeat the Board's jurisdiction over the petition.
Reopening.
The appellants argue that it was improper for the trial court to grant the freeholders' motion to withdraw their rest to offer exhibit 1, the verbatim transcript of the Board's proceedings, into evidence. The reopening of a case to receive additional evidence is a matter within the discretion of the district court and will not be disturbed on appeal in the absence of an abuse of that discretion. Jessen v. DeFord, 3 Neb. App. 940, 536 N.W.2d 68 (1995). We have reviewed the record and determined that the evidence contained in exhibit 1 was material, went to the merits of the instant case, and was otherwise admissible, at least for the purpose of demonstrating that the earlier proceeding occurred. Therefore, the trial judge did not abuse its discretion in granting the freeholders' motion. However, with the exception of testimony regarding the mill levy contained in the exhibit, the evidence contained therein is duplicative of the evidence presented before the district court.
Herzberg `s Testimony on Cross-Examination.
The appellants argue that it was an abuse of discretion to overrule their objection to Herzberg's testimony on cross-examination. They allege that Herzberg's testimony on cross-examination — that Heartland was not a member of a learning community — was improperly included in the record because it was outside the scope of direct examination and that we should not consider it upon our de novo review. On direct examination, Herzberg testified regarding her duties as a superintendent, the average number of students in grades 9 to 12 attending Hampton, and her opinion as to whether it would be in the children's best interests to transfer the land.
The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). Herzberg's testimony regarding whether Heartland was a member of a learning community was related to her testimony about her duties as a superintendent. Therefore, we find that the trial court did not abuse its discretion in overruling the appellants' objection and permitting cross-examination concerning the matter.
Evidence Admitted for Limited Purpose.
Because we conduct a de novo review, we make our own factual findings based upon the record. See Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999). Therefore, we must determine what evidence is properly before us in this appeal. The appellants argue that we cannot consider many of the freeholders' exhibits for the truth of the matter asserted because they were offered in district court for the limited purpose of showing that they had been offered at the hearing before the Board.
If admissible evidence is offered or received for a limited purpose, the evidence is admitted only for the limited purpose specified. KN Energy, Inc. v. Cities of Broken Bow et al., 244 Neb. 113, 505 N.W.2d 102 (1993). If, when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object or to insist upon a ruling on an objection to the introduction of the evidence, and otherwise fails to raise the question as to its admissibility, that party is considered to have waived whatever objection the party may have had thereto, and the evidence is in the record for consideration the same as other evidence. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008).
When the freeholders offered a number of exhibits which had previously been offered at the proceeding before the Board, including a verified document demonstrating that Hampton taxpayers had voted to exceed the mill levy, the appellants' counsel objected as follows:
[Appellants' counsel]: Well, I guess the — we [appellants' counsel and freeholders' counsel] spoke about this earlier, and my understanding [is that freeholders' counsel is] offering these — most of these exhibits not for the truth of the matter asserted, but just to simply show that these were actually filed at the previous hearing before the Board; is that correct?
[Freeholders' counsel]: That's correct.
[Appellants' counsel]: With that, I would submit it. I have no objection.
Under these circumstances, the appellants' counsel's request that the court consider "most of these exhibits" for the limited purpose of showing that they were offered at the hearing before the Board was not sufficient to preserve the error which the appellants have now assigned regarding all of the exhibits offered at that particular time. It is the responsibility of the party appealing to provide a record which supports the claimed errors. In re Interest of Ty M. Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003). Because the appellants did not specify in the record to which exhibits they objected, the record is not sufficient for us to address whether it is appropriate to consider any portion of this evidence for a limited purpose only. We therefore conclude that we may consider these exhibits for all purposes.
On a second occasion, the appellants sought to limit the purpose for which exhibit 1 could be considered. Immediately before the court received exhibit 1 into evidence, the appellants expressed their belief that this exhibit would be offered into evidence for a limited purpose but did not object. In response to the court's asking whether the appellants had any evidentiary objections to exhibit 1, counsel for the appellants stated as follows: "Just the same. What [the freeholders are] offering them for, to show that they were — that there was a [f]reeholder hearing, I don't object to that."
Because the appellants failed to actually object and insist upon a ruling in this matter, the evidence may be considered for all purposes. The appellants' counsel stated that he did not object because he believed that the evidence was offered for a limited purpose. However, the evidence was neither offered nor received for a limited purpose. Therefore, exhibit 1 may be considered for all purposes.
Trial De Novo Standard of Review.
The appellants assert that the district court did not consider the requirements of §§ 79-458(1)(a) and (b) correctly under the trial de novo standard of review. The applicable provisions contained in § 79-458(1) are as follows:
(a) The Class II or III school district [in which the land is located] has had an average 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.
(b) The Class II or III school district has voted to exceed the maximum levy . . . which vote is effective for the school fiscal year in which the petition is filed or for the following school fiscal year.
(Emphasis supplied.) The appellants urge us that we should consider whether the freeholders fulfilled these requirements as of the date of the trial de novo in district court.
Clearly, the district court is to consider the facts as they existed at the time of the trial before the district court in concluding whether the transfer was appropriate. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, ___ N.W.2d ___(2009). Although the Koch opinion was released after oral arguments were presented in the instant case, it discusses the case law cited by the appellants in the case before us. The appellants argue that In re Covault Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 (1984), and Miller v. School Dist. No. 69, 208 Neb. 290, 303 N.W.2d 483 (1981), require us to consider whether the average daily enrollment was 60 and whether the school district had voted to exceed the maximum levy effective the current or following school year as of the date that the case was tried before the district court.
However, there is an important difference between the statutory requirement at issue in In re Covault Freeholder Petition and Miller compared to the requirements of §§ 79-458(1)(a) and (b). In the former cases, the pertinent statutory requirement (accreditation status) did not fix the determination in relation to the time of filing of the petition. Thus, upon a trial de novo, the court was required to consider the school district's accreditation status as of the date of trial in the district court.
In the case before us, however, no matter when the instant freeholders case was tried before the district court, the plain language of § 79-458 required the court to consider whether the requirements of §§ 79-458(1)(a) and (b) were fulfilled in relation to times specified by reference to "the petition." While the court was undoubtedly required to make this determination using the evidence adduced in the trial before it, the statute itself mandated measurement of the two criteria in relation to the time of filing of "the petition."
Thus, we must determine the meaning of "the petition" as used in §§ 79-458(1)(a) and (b). In the instant case, two freeholders' petitions were filed — the original petition with the Board in August 2006 and the amended petition with the district court on November 17, 2007. The meaning of a statute is a question of law. Ahmann v. Correctional Ctr. Lincoln, 276 Neb. 590, 755 N.W.2d 608 (2008). In the absence of a statutory indication to the contrary, words in a statute will be given their ordinary meaning. McClellan v. Board of Equal, of Douglas Cty., 275 Neb. 581, 748 N.W.2d 66 (2008).
The language of § 79-458 suggests that the Legislature intended the references to "the petition" to mean the original petition filed with the freeholder's board. While § 79-458 does not specifically address the situation of an amended petition on appeal, the statute discusses the term "petition" in the context of the one filed with the board. Section 79-458(1) states that freeholders "may file a petition 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. . . ." The two pertinent criteria are delineated in subsections of § 79-458(1). Section 79-458(5) provides that the parties may "appeal" the board's decision to the district court but says nothing about filing an amended petition in district court. In Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, 1021, ___N. W.2d___,___(2009), the Nebraska Supreme Court stated that "because the district court was allowed to accept new evidence and consider the question of transfer anew, it did not err in allowing the filing of new or amended petitions." But in Koch, the court was not called upon to determine the meaning of the words "the petition" as used in §§ 79-458(1)(a) and (b).
While in certain circumstances, the Legislature is deemed to have acquiesced in a judicial interpretation of a statute, we do not believe that such rule has application in the instant case. There is a presumption that the Legislature has knowledge of this state's appellate court decisions as they relate to the matters on which it legislates. See, Stewart v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007); River City Life Ctr. v. Douglas Cty. Bd. of Equal., 265 Neb. 723, 658 N.W.2d 717 (2003). When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation. Dawes v. Wittrock Sandblasting Painting, 266 Neb. 526, 667 N.W.2d 167 (2003), disapproved in part on other grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005). However, the Legislature amended § 79-458 prior to the Koch decision. Because the Legislature had no opportunity to revise the applicable version of § 79-458 in response to the Koch decision or acquiesce to Koch, we do not apply the presumption of acquiescence to the specific holdings found in Koch alone. In Koch, the court decided for the first time that an amended freeholders' petition could be filed in district court. Prior to Koch, there was no precedent explicitly permitting a freeholder to do so. However, the Legislature can be charged with knowledge of the decisions which the court cited in Koch as authority to support this conclusion — In re Covault Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 (1984), and Miller v. School Dist. No. 69, 208 Neb. 290, 303 N.W.2d 483 (1981)-because more than 20 years has passed since these cases were decided. In In re Covault Freeholder Petition and Miller, the court expressly held only that the trial de novo standard of review applicable to freeholder cases before the district court meant that evidentiary requirements that were not time-specific had to be determined as of the date that the case was before the district court. In re Covault Freeholder Petition and Miller did not include any language expressly stating that the trial de novo standard also permitted freeholders to revise their petitions before the district court. Therefore, the applicable holdings in In re Covault Freeholder Petition and Miller facially appear to be limited to evidentiary matters. We conclude that we cannot construe the Legislature's presumptive knowledge of In re Covault Freeholder Petition and Miller to mean that the Legislature acquiesced to a definition of "petition" that included an amended petition filed with the district court. Because an amended petition filed in district court was not expressly recognized as a possibility prior to Koch, we return to the words used by the Legislature. Therefore, the relevant "petition," referred to by §§ 79-458(1)(a) and (b), is the petition that was filed with the Board in August 2006.
Sufficiency of Evidence.
We now turn to the question of whether the evidence supports the existence of the criteria specified in § 79-458(1)(a), (b), and (d). Upon our de novo review, we find sufficient evidence to establish these criteria. We examine each in turn.
The freeholders have complied with § 79-458(1)(a). Because the petition was filed in August 2006, the statute requires us to consider the two fiscal school years preceding such date — 2005-06 and 2004-05. At the trial before the district court, both the freeholders and the appellants adduced evidence that during each of these school years, Hampton's average daily membership was less than 60.
The freeholders have also complied with § 79-458(1)(b). They offered into evidence a certified document signed by the county clerk stating that in May 2006, the Hampton voters had voted to "override" the school levy. Although the document does not state when the levy override would be effective, evidence contained in exhibit 1 — the transcription of the previous proceeding-indicates that the override would be effective during the 2006-07 school year. During the proceeding before the Board, Herzberg testified that Hampton voters had voted to exceed the maximum mill levy effective for the 2006-07 school year.
The freeholders have also complied with the requirement contained in § 79-458(1)(d) which requires that they prove that neither the transferor or transferee school district belonged to a learning community. As noted above, Herzberg testified that Hampton was not a member of a learning community. In addition, Heartland's superintendent testified in district court that his school district did not belong to a learning community.
CONCLUSION
We conclude that the freeholders' failure to allege that neither the transferor nor the transferee school district belonged to a learning community did not prevent the Board from acquiring original jurisdiction over the freeholders' petition. Upon our de novo review of the properly admitted evidence, we find that the freeholders complied with the requirements of § 79-458. We find that the freeholders are entitled to have their land transferred; therefore, we affirm the decision of the district court granting the transfer.
AFFIRMED.