Pierce v. Drobny

agency, however, Falls City delegated the power and respon-
sibility of providing natural gas to its citizens to NPGA. In
this case, Falls City does not have standing to sue because
neither NMPP nor the individual defendants owed it any fidu-
ciary duties.
We find that neither the Interlocal Cooperation Act nor the
agreement Falls City signed when it joined NPGA granted Falls
City the right to bring suit against NMPP or the individual
defendants. NPGA is a public body, and its duties are owed to
the public. Therefore, Falls City did not have standing to bring
this cause of action and the action must be dismissed. Because
Falls City did not have standing to bring this claim, we need
not address the other assignments of error or the cross-appeals
filed by either the individual defendants or CPEP.
CONCLUSION
As an interlocal agency, NPGA is a creature of statute, and
Falls City is a member of the interlocal agency. Falls City
signed the interlocal agreement giving the board of directors of
NPGA power to make business decisions on its behalf. Neither
the Interlocal Cooperation Act nor the agreement gives Falls
City standing to sue NMPP or the individual defendants. We
therefore find that Falls City had no right to bring this cause
of action, and we reverse, and remand to the district court with
directions to dismiss.
R eveRsed and Remanded with diRections.
wRight and milleR-leRman, JJ., not participating.
PIErCE v. drOBNy 	251
Cite as 279 Neb. 251
P hiliP P ieRce et al ., aPPellants , v. Paul dRobny, PResident
of the boaRd of education of K nox county school
distRict #0583, et al ., aPPellees.
777 N.W.2d 322
Filed January 15, 2010. 	No. S-09-400.
1. Rules of the Supreme Court: Pleadings. dismissal under Neb. Ct. r. Pldg.
§ 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint that there is some
insuperable bar to relief.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

2. Pleadings: Appeal and Error. An appellate court reviews de novo a lower
court’s dismissal of a complaint for failure to state a claim.
3. ____: ____. When analyzing a lower court’s dismissal of a complaint for failure
to state a claim, an appellate court accepts the complaint’s factual allegations as
true and construes them in the light most favorable to the plaintiff.
4. Public Meetings: Voting. The Open Meetings Act is generally applicable to
public meetings at which policies are usually adopted by committees, and those
policies are usually not subject to a public election.
5. Trial: Voting: Appeal and Error. One cannot silently tolerate error, gamble on
a favorable result, and then complain that one guessed wrong. Similarly, one
cannot wait on the outcome of an election to decide whether to complain about a
preliminary error.
6. Voting. Once an election has been held, challenges to its outcome are properly
limited to matters that could compromise the accuracy of the results.
7. Schools and School Districts: Voting: Bonds. Neb. rev. Stat. § 10-707 (reissue
2007), generally described, requires certification under oath of the procedures
and results of a bond election. It does not require certification of the preliminary
proceedings that led to the election, including the school board vote that called
for it.
Appeal from the district Court for Knox County: RobeRt b.
ensz, Judge. Affirmed.
Thomas H. deLay, of Jewell, Collins, deLay, Flood &
doele, for appellants.
John F. recknor and randall Wertz, of recknor, Wertz &
Associates, and Mark d. Fitzgerald, of Fitzgerald, Vetter &
Temple, for appellees.
heavican, 	c.J., 	wRight, 	connolly, 	geRRaRd, 	stePhan,
mccoRmacK, and milleR-leRman, JJ.
mccoRmacK, J.
NATUrE OF CASE
Philip Pierce, along with several other Knox County School
district residents (collectively referred to as “the residents”)
filed a complaint against Knox County School district No.
0583, its board of education, and Paul drobny in his capac-
ity as the president of the board (collectively referred to as
“the School Board”), alleging violations of the Open Meetings
Act (OMA)1 with respect to the issuance of school bonds. The
1 Neb. rev. Stat. §§ 84-1407 through 84-1414 (reissue 2008).
252 	279 NEBrASKA rEPOrTS

School Board moved to dismiss the complaint, claiming that
it failed to state a claim upon which relief could be granted.
The court granted the School Board’s motion to dismiss, and
the residents perfected this appeal. The issue presented in this
appeal is whether the residents waived their claims by failing
to challenge the election that approved the bond issue.
BACKGrOUNd
The residents alleged in their complaint that the School
Board substantially violated the OMA by holding secret meet-
ings, without notice, agenda, or public participation. They
alleged that these secret meetings occurred before the passage
of any resolution and that at the meetings, facility reviews were
discussed, new construction was discussed and reviewed, and
bond issues were discussed and voted upon as the preferred
funding for the construction of new school buildings. Then, on
August 20, 2008, the School Board publicly met and passed a
resolution which authorized a special election for the issuance
of bonds for the construction of a new school.
Although the residents were presumably aware of the
alleged violations during the preliminary stages leading to
the resolution, they did not file any action against the School
Board and instead waited to see if the bonds would pass in the
public election. On November 4, 2008, an election was held at
which the electors voted in favor of issuing bonds for the new
school construction. However, no bonds have actually been
issued yet.
The residents filed their complaint on January 22, 2009.
The complaint did not plead a claim under the election contest
statutes. Instead, the residents asked for an order under the
OMA declaring the August 20, 2008, resolution void. Their
claim would have been timely under the OMA.2
But in their complaint, the residents further alleged that
the November 4, 2008, vote in favor of the bonds was a direct
result of the illegal secret meetings of the School Board and
was, like the August 20 resolution, also void. Based on that
allegation, the district court concluded that the residents’ suit
2 See § 84-1414.
PIErCE v. drOBNy 	253
Cite as 279 Neb. 251

was simply an election contest3 and that because the residents
did not file suit within the time period specified by the elec-
tion contest statutes, their complaint was untimely. Further, the
court explained that a judgment voiding the resolution would
be merely advisory, as the election had been held and the bond
issue adopted.
Accordingly, the district court dismissed the complaint with-
out leave to amend. The residents appealed. We moved the
appeal to our docket pursuant to our statutory authority to regu-
late the caseloads of the appellate courts of this state.4
ASSIGNMENTS OF ErrOr
The residents argue, consolidated and restated, that the
district court erred in dismissing the complaint with preju-
dice because (1) the facts pleaded in the complaint establish
violations of the OMA, and a declaration as such would not
constitute an advisory opinion; (2) the court’s failure to allow
the residents an opportunity to amend was an abuse of discre-
tion; and (3) the residents have a legally cognizable interest in
enforcing the relief provided by the OMA.
STANdArd OF rEVIEW
[1-3] dismissal under Neb. Ct. r. Pldg. § 6-1112(b)(6)
should be granted only in the unusual case in which a plaintiff
includes allegations that show on the face of the complaint
that there is some insuperable bar to relief.5 An appellate court
reviews de novo a lower court’s dismissal of a complaint for
failure to state a claim.6 When analyzing a lower court’s dis-
missal of a complaint for failure to state a claim, an appellate
court accepts the complaint’s factual allegations as true and
construes them in the light most favorable to the plaintiff.7
3 See Neb. rev. Stat. § 32-1101 (reissue 2008).
4 Neb. rev. Stat. § 24-1106(3) (reissue 2008).
5 Crane Sales & Serv. Co. v. Seneca Ins. Co., 276 Neb. 372, 754 N.W.2d
607 (2008).
6 Id.
7 Id.
254 	279 NEBrASKA rEPOrTS

ANALySIS
The residents assert that the district court erred in dismiss-
ing their complaint without leave to amend for failure to state
a claim. They maintain that this suit is not an election contest
and that to the extent their complaint indicated they were
attempting an election contest, they should be allowed to strike
it. Instead, the residents explain, they seek an order under
§ 84-1414 voiding the August 20, 2008, resolution to submit
the issue through a public election.
But the residents do not clearly explain how they would
benefit from such an order now that the election has been held.
They indicate that they might next seek an order enjoining the
issuance of the bonds. The residents maintain that passing
a valid resolution to submit the bond issue to the electors is
a mandatory condition precedent to a vote upon issuance of
bonds and that because the resolution was allegedly based on
information obtained in violation of the OMA, no bonds may
be issued.
At the outset, we find little merit to the residents’ attempts
to characterize their claim as a challenge to a bond issue instead
of as a challenge to the election at which the bond issue was
approved. The residents’ goal may be to prevent the issuance
of the bonds, but they seek to enjoin it based on an alleged
defect in the preliminary stages in the process leading up to
the election. The real question in this case is whether, once an
election takes place, a challenge under the OMA to preliminary
stages leading up to the election is effectively subsumed by
the election contest provisions of Neb. rev. Stat. §§ 32-1101
through 32-1117 (reissue 2008). We hold that an election con-
test is the exclusive remedy under such circumstances and that
a separate challenge under the OMA does not exist once the
issue is voted upon by the public.8
A similar issue was addressed by this court in Eriksen
v. Ray.9 In Eriksen, we held that an election contest under
8 See, Eriksen v. Ray, 212 Neb. 8, 321 N.W.2d 59 (1982); Murphy v. Holt
County Committee of Reorganization, 181 Neb. 182, 147 N.W.2d 522
(1966).
9 Eriksen v. Ray, supra note 8.
PIErCE v. drOBNy 	255
Cite as 279 Neb. 251

§ 32-1101 was the exclusive method to challenge a school reor-
ganization once that reorganization was voted upon in a public
election. The taxpayers in Eriksen alleged that in the prelimi-
nary stages leading up to the election, the county superintend-
ent had failed to give notice of the filing of the maps and the
statement of a proposed plan calling for a merger, as required
by the school organization and reorganization statutes.10 The
proposed plan eventually led to a resolution calling for a bond
election asking the voters whether bonds should be issued for
a new elementary school in conjunction with a reorganization
plan. The electors approved the bond and its corresponding
reorganization plan.
We explained that it was the election that actually caused
the reorganization to take place. While the voters could have
brought an appropriate action before the election was held,
once the election had been held, absent evidence of fraud or
evidence that a voter was prevented from expressing his or her
free will at the poll, “preliminary requirements concerning the
giving of notice . . . or the manner in which the election is to
be held, are merely directory and not jurisdictional.”11 In other
words, we reasoned that after an election has been held, only
challenges directed at the fairness of the election remained
cognizable.
Thus, we explained that although a taxpayer might be able
to bring other appropriate statutory actions before an election is
held, the election contest statutes provide the exclusive method
to challenge the action once an election has taken place. To
hold otherwise, we said, would thwart the goals of § 32-1101
and its limited statute of limitations “designed specifically for
the purpose of attempting to provide certainty to government
and to determine as quickly as possible whether in fact the will
of the people is to be carried out.”12 We concluded: “regardless
of how [the taxpayers] may choose to characterize their action
in the instant case, it was indeed a suit to contest the special
10 See id.
11 Id. at 13, 321 N.W.2d at 63.
12 Id. at 15, 321 N.W.2d at 63.
256 	279 NEBrASKA rEPOrTS

election and as such should have been brought as an elec-
tion contest . . . .”13
[4] We have never before specifically addressed the relation-
ship of the election contest statutes to actions under the OMA.
As the residents point out, the OMA sets forth an action to
void a resolution, an action that is arguably more specific than
that brought by the taxpayers in Eriksen under the declara-
tory judgment act.14 Nevertheless, we find much of the same
reasoning applies. The OMA is generally applicable to public
meetings at which policies are usually adopted by committees,
and those policies are usually not subject to a public election.15
But § 32-1101 provides that “[s]ections 32-1101 to 32-1117
shall apply to contests of any election” and that such contests
encompass “any proposition submitted to a vote of the people.”
(Emphasis supplied.) We reasoned in Eriksen that it is the
nature of the relief sought, not the underlying defect alleged,
that determines whether the election contest statutes are impli-
cated. The relief sought here is clearly the undoing of the effect
of the election. And, as Eriksen suggests, the election contest
statutes are the only statutory means for doing so.
[5,6] And, as pointed out in Eriksen, there are also particular
public policy reasons to limit challenges to election results to
the election contest provisions. We have often said that one
cannot silently tolerate error, gamble on a favorable result,
and then complain that one guessed wrong.16 Similarly, one
cannot wait on the outcome of an election to decide whether
to complain about a preliminary error. We conclude that once
an election has been held, challenges to its outcome are prop-
erly limited to matters that could compromise the accuracy of
the results.
13 Id. at 14, 321 N.W.2d at 63.
14 See, Neb. rev. Stat. § 25-2001 (reissue 2008); § 84-1414; Eriksen v. Ray,
supra note 8.
15 See, Marks v. Judicial Nominating Comm., 236 Neb. 429, 461 N.W.2d 551
(1990); Eriksen v. Ray, supra note 8; Murphy v. Holt County Committee of
Reorganization, supra note 8.
16 See, e.g., Mooney v. Gordon Memorial Hosp. Dist., 268 Neb. 273, 682
N.W.2d 253 (2004).
PIErCE v. drOBNy 	257
Cite as 279 Neb. 251

Thus, while the residents have filed a timely claim under the
OMA, they have failed to state a claim upon which relief can
be granted. The relief they ultimately seek is the invalidation of
the election results, and the only statutory means for invalidat-
ing an election is found in §§ 32-1101 through 32-1117.
[7] In their reply brief, the residents also argue that they are
challenging the postelection ability of the School Board to cer-
tify the bonds under Neb. rev. Stat. § 10-707 (reissue 2007).
Contrary to the residents’ suggestion, we find this statute
wholly inapplicable to the process leading to the resolution to
hold an election. Section 10-707, generally described, requires
certification under oath of the procedures and results of a bond
election. It does not require certification of the preliminary
proceedings that led to the election, including the school board
vote that called for it. We express no view on whether the
inability to comply with § 10-707 might, under other circum-
stances, warrant judicial relief. It is sufficient to say that in this
case, the residents’ allegations do not implicate the require-
ments of § 10-707.
We agree with the district court that the residents have no
remedy under the OMA or any other statutory provisions which
they argue might be applicable. Amendment of the complaint
would not cure this defect. Therefore, we find no merit to any
of the residents’ assignments of error.
CONCLUSION
We conclude that the residents’ complaint was properly dis-
missed without leave to amend for failure to state a claim. The
judgment of the district court is affirmed.
affiRmed.
258 	279 NEBrASKA rEPOrTS