Opinion
No. A-08-174.
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 Janzen 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. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
INTRODUCTION
Several freeholders filed a petition requesting that their land 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. After the court granted the transfer as to two of three tracts of land, this appeal followed. Because we find that the freeholders have fulfilled the requirements contained in Neb. Rev. Stat. § 79-458 (Cum. Supp. 2006), and are therefore entitled to transfer their land, we affirm.
BACKGROUND
In February 2007, the freeholders, Walter Janzen, Elva Janzen, Carol Janzen, Gary Janzen, and Pamela Janzen 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. On March 21, the Board heard this matter in conjunction with a second petition filed by other landowners. Because of the contiguity requirement of § 79-458, transfer of the freeholders' third tract depended upon the transfer of the land belonging to the other petitioners. Three members of the Board voted in favor of granting the transfer, and three voted against it. According to the bill of exceptions for this proceeding, members of the Board expressed concern that the freeholders had failed to gain the requisite approval of Heartland's school board for the third tract. The Board denied the freeholders' petition entirely because they believed that § 79-458 required them to vote on all tracts of land at issue as a unit.
The freeholders then appealed and filed a petition in error with the district court for Hamilton County. The court permitted Phil Troester, Dale Young, Gene Winter, and Karen Bamesberger (the appellants) to intervene in opposition to the petition. On November 14, 2007, the court heard this matter in a trial de novo in a consolidated proceeding with another appeal involving a third set of landowners attempting to invoke the freeholder statute. The proceedings related to the third set of landowners may be disregarded for purposes of this appeal. In the instant case, before the district court, the freeholders agreed that they would cease to pursue the transfer of the third tract, which the Board had previously called into question.
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 first two tracts, but not the third tract, be transferred from Hampton to Heartland.
The appellants timely appeal.
ASSIGNMENTS OF ERROR
The appellants make nine assignments of error, which we consolidate and restate into five assignments, in which the appellants claim the court erred in (1) failing to find that the Board, and thus the district court, lacked subject matter jurisdiction; (2) granting the freeholders' motion to reopen their case in chief; (3) permitting Herzberg to testify beyond the scope of direct examination; (4) failing to apply a de novo standard of review; and (5) finding that the freeholders proved the elements of § 79-458 by a preponderance of the evidence.
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, 439N.W.2d781 (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. On appeal from an equity action, an appellate court resolves questions of law and fact independently of the trial court's determinations. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, ___ N.W.2d ___ (2009).
ANALYSIS
Jurisdiction.
The appellants allege that the Board did not have jurisdiction to hear the freeholders' petition because they failed to prove their case under § 79-458, the statute governing freeholding. This assignment of error is without merit. The appellants acknowledge that the freeholders filed a petition that was sufficient pursuant to § 79-458. We reject this assignment of error.
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, supra. The appellants have failed to articulate any specific prejudice resulting from the reopening and subsequent admission of exhibit 1. They have not identified any aspect of the exhibit that is beneficial to the freeholders and is not otherwise in the record. Because we address the appellants' assignments of error without considering the evidence contained in exhibit 1, no prejudice could result to the appellants from the admission of exhibit 1. Error without prejudice provides no ground for appellate relief. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
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 regarding 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. This includes a verified document which demonstrates that Hampton voted to exceed the maximum levy. If admissible evidence is offered or received for a limited purpose, the evidence is admitted only for the limited purpose specified. K N 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).
The record makes it clear that none of the exhibits in this case were admitted for a limited purpose. When the freeholders offered exhibits related to the previous proceeding, the appellants attempted to object. On one occasion after the freeholders offered numerous exhibits, the appellants' counsel stated that if the exhibits "are offered just to show that they were offered at the previous board hearing, I have no objection. . . ." The appellants' counsel made a similar statement when the freeholders offered exhibit 1. At no time did the freeholders' counsel express agreement with these statements. The appellants' counsel did not actually object or insist upon a ruling on his attempts to limit the purpose of the offers. After counsel's statement on both occasions, the judge received the exhibits without comment. Therefore, the exhibits were admitted into evidence without limitation.
Sufficiency of Evidence.
Finally, the appellants assert that the freeholders failed to prove that they had fulfilled the statutory requirements contained in § 79-458 for a transfer. We address this argument following the structure of § 79-458. First, we address the appellants' argument that the freeholders failed to comply with § 79-458(1)(a), (b), and (d). We then address the appellants' argument that the freeholders failed to comply with § 79-458(2)(c).
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;
(d) Neither school district is a member of a learning community.
Before considering the specific evidence, we must address the appellants' interpretation of § 79-458(1)(a) and (b). Concerning questions of law and statutory interpretation, an appellate court resolves the issues independently of the lower court's conclusion. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007). The appellants argue that the freeholders must prove that the requirements of § 79-458(1)(a) and (b) were met as of the date of the proceeding before the district court. The appellants claim that because the district court was required to provide a trial de novo, the district court should have considered the facts as they were on the date of the trial on November 14, 2007, as opposed to the facts in existence in February 2007 when the freeholders filed their petition.
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). The appellants argue that this makes whether the freeholders fulfilled the requirements of § 79-458(1)(a) and (b) as of February 2007 irrelevant. In Koch, the Supreme Court approved of 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), which the appellants have cited in support of this argument.
However, In re Covault Freeholder Petition and Miller are easily distinguished from the instant case because the requirements of the freeholder statute at issue in those cases were significantly different from the statute before us. In In re Covault Freeholder Petition, the applicable freeholder statute required the freeholders to prove that the district from which the land was transferred was not accredited. In Miller, the applicable freeholder statute required that the district to which the land was transferred be accredited. In both cases, the statute did not specify any time restrictions regarding these requirements. In both In re Covault Freeholder Petition and Miller, the Supreme Court determined that the freeholders had to prove the requirements surrounding accreditation as of the date of review in district court. However, in the case before us, the requirements of § 79-458(1)(a) and (b) fix the dates at which the relevant facts are determined. Section 79-458(1)(a) provides that the relevant attendance statistics are derived from the "two consecutive school fiscal years immediately preceding the filing of petition." Section 79-458(1)(b) prescribes that the court consider the tax levy "for the school fiscal year in which the petition is filed or for the following school fiscal year." According to the plain language of these sections, the relevant facts are determined as of the date when the freeholders filed their petition. The freeholders filed only one petition, which was filed with the Board in February 2007. Therefore, the district court was required to determine the existence of the statutory criteria in relation to the date on which the freeholders' petition was originally filed.
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 February 2007, 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, we infer that it was effective for the 2006-07 school year, during which the freeholders filed their petition. Where several inferences may be drawn from the facts proved, which inferences are opposed to each other but are equally consistent with the facts proved, the party having the burden of proof may not sustain that burden by a reliance alone on the inference supporting that party's position. Nygren v. Nygren, 14 Neb. App. 1, 704 N.W.2d 257 (2005). A corollary to the rule would be that where one inference is stronger than another, the stronger inference is sufficient to sustain the burden of proof. In this case, because of the timing of the vote, the stronger inference is that the levy override would be effective the following school year.
The freeholders have also complied with the requirement contained in § 79-458(1)(d). 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.
After rejecting the appellants' arguments regarding the sufficiency of the evidence under the criteria of § 79-458(1), we consider the appellants' argument that the freeholders did not comply with § 79-458(2)(c). This subsection requires that "such petition [be] approved by a majority of the members of the school board of the district to which such land is sought to be attached." The appellants assert that the freeholders failed to comply with this provision because they did not present the Heartland School Board with the exact same petition that they later filed with the Board. They state that the petition presented to the school board differed because it was not signed or notarized while the one filed with the Board was both signed and notarized. The appellants would have us place form over substance, and their argument has no support in precedent. Section 79-458(2)(c) requires approval of the specific content of the petition. The undisputed evidence shows that Heartland's school board approved the precise and identical substantive content of the petition. In the district court, Heartland's superintendent testified to such approval and Heartland's school board minutes, which are also in the record, also recite this fact. We find no merit to this argument.
CONCLUSION
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.