Opinion
No. A-11-184.
11-29-2011
DARREN C. OBRECHT, AN INDIVIDUAL, APPELLEE, v. PAUL J. HANSEN, AN INDIVIDUAL, APPELLANT, AND JOHN DOE AND/OR JANE DOE ET AL., APPELLEES.
Paul J. Hansen, pro se. Scott E. Daniel, of Brashear, L.L.P., for appellee Darren C. Obrecht.
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).
Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge. Affirmed.
Paul J. Hansen, pro se.
Scott E. Daniel, of Brashear, L.L.P., for appellee Darren C. Obrecht.
IRWIN, CASSEL, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. This is an action to foreclose a tax certificate issued to Darren C. Obrecht at a public sale on March 6, 2006. The district court for Douglas County granted summary judgment in favor of Obrecht and entered a decree of foreclosure on the tax certificate. Paul J. Hansen, the record owner of the property at issue, appeals.
BACKGROUND
Hansen owned property on South 30th Avenue in Omaha, Nebraska, on which he failed to pay the property taxes for a number of years. The Douglas County treasurer held a public sale of the property for the delinquent taxes owed for the years 2003 through 2005. Obrecht paid the taxes and was issued a tax certificate. Obrecht subsequently paid the real estate taxes for 2006 and 2007. After Obrecht held the tax certificate for 3 years, he brought an action to foreclose his interest in the property pursuant to Neb. Rev. Stat. § 77-1902 (Reissue 2009). Hansen and all interested parties were served with notice and an opportunity to be heard and assert their interest, if any, in the property. Hansen objected to the service, contending that the district court did not have personal or subject matter jurisdiction. The court found it had both personal and subject matter jurisdiction of the case.
Obrecht moved for summary judgment, and at the hearing, he presented evidence of Hansen's record ownership of the property—the tax certificate owned by Obrecht and evidence of payment of subsequent taxes. On December 8, 2010, the court granted partial summary judgment in Obrecht's favor. It entered judgment in favor of Obrecht and against Hansen, as well as other defendants having an interest in the subject property. The court stated that it could not issue a decree of foreclosure at that time because the interests of all defendants had not been adjudicated. On February 1, 2011, the court entered an order of summary judgment in favor of Obrecht and against the remaining defendant. On February 7, the court entered a decree of foreclosure against all defendants. It found that Obrecht was entitled to $21,490.03 plus interest, costs, and attorney fees. Hansen filed a motion to alter or amend the court's determination, which was overruled. Hansen now appeals.
ASSIGNMENTS OF ERROR
Hansen assigns, restated, that the trial court erred in (1) failing to dismiss the case for lack of subject matter and personal jurisdiction, (2) failing to grant his demand for jury trial, and (3) denying his motion to recuse due to the judge's alleged bias against Hansen based on a "criminal complaint" filed by Hansen against the trial judge.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact 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. Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence. Id.
ANALYSIS
Subject Matter and Personal Jurisdiction.
Hansen first assigns that the trial court erred in failing to dismiss the case for lack of subject matter and personal jurisdiction. Based on the record, there is no question that the trial court had subject matter jurisdiction and personal jurisdiction. Section 77-1902 provides that the holder of a tax certificate may proceed in the district court of the county in which the land is situated to foreclose the lien for taxes represented by the tax sale certificate. The subject property is located in Douglas County. The district court had subject matter jurisdiction over Obrecht's action to foreclose a tax certificate.
In regard to personal jurisdiction, Hansen was personally served with summons and he does not claim that service was improper or that he is not the record owner of the property. The district court had personal jurisdiction over Hansen. Hansen's first assignment of error is without merit.
Demand for Jury Trial.
Hansen next assigns that the trial court erred in failing to grant his demand for jury trial, which he claims was one of right. Based on the record, Obrecht presented a prima facie case for summary judgment by producing enough evidence to demonstrate that he is entitled to judgment in his favor if the evidence was uncontroverted at trial. See State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010). Obrecht presented evidence showing his proper interest in the property at issue, Hansen's failure to redeem the property within the time allowed, Obrecht's demonstrated compliance with the statutes governing foreclosure of the tax certificate, his timely filing of the action, and his giving notice to parties having a possible interest in the proceeding.
Hansen, in turn, failed to meet his burden to present evidence showing the existence of a material issue of fact that prevents judgment as a matter of law. See id.
Hansen's ownership of the property and Obrecht's possession of the tax certificate are not disputed. Accordingly, no disputed issues of fact exist. Summary judgment was properly granted in favor of Obrecht.
We further note that even if there were material issues of fact such that summary judgment was not appropriate, Hansen would not be entitled to a jury trial. An action to foreclose a tax certificate is an equity proceeding where the right to a jury trial does not apply. See Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010) (under Nebraska law, parties generally do not have right to jury trial in actions or proceedings which have as their main object equitable relief). There is no merit to Hansen's second assignment of error.
Motion to Recuse.
Finally, Hansen assigns that the trial judge erred in denying his motion to recuse. Hansen contends that the judge was biased because Hansen filed a "criminal complaint" against the judge alleging that he conspired against Hansen in a former case. There is nothing in the record to support a conclusion that the trial judge abused his discretion in denying Hansen's motion to recuse. See Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010) (motion requesting judge to recuse himself or herself on ground of bias or prejudice is addressed to discretion of judge, and order overruling such motion will be affirmed on appeal unless record establishes bias or prejudice as matter of law). Hansen's final assignment of error is without merit.
CONCLUSION
Having found no merit to Hansen's assignments of error, we affirm the district court's decree of foreclosure on the tax certificate.
AFFIRMED.