State ex rel. Douglas Cty. Sch. Dist. No. 66 v. Ewing

- 663 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
State of Nebraska ex rel. Douglas County School
District No. 66, also known as Westside Community
School District, appellant, v. John Ewing, in his
official capacity as county treasurer of Douglas
County, Nebraska, appellee, and Douglas County
School District No. 0001, also known as
Omaha Public schools, intervenor-appellee.
___ N.W.3d ___
Filed August 22, 2025. 	No. S-24-192.
1. Motions to Vacate: Time: Appeal and Error. The decision to vacate
an order any time during the term in which the judgment is rendered is
within the discretion of the court; such a decision will be reversed only
if it is shown that the district court abused its discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
3. Constitutional Law: Courts. The construction of the Nebraska
Constitution is a judicial function, and the Nebraska Constitution is
interpreted as a matter of law.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
5. Contracts: Appeal and Error. The construction of a contract is a
matter of law, in connection with which an appellate court has an obli-
gation to reach an independent, correct conclusion irrespective of the
determinations made by the court below.
6. Mandamus: Words and Phrases. Mandamus is a law action and rep-
resents an extraordinary remedy, not a writ of right.
7. Mandamus. Whether to grant a writ of mandamus is within a court’s
discretion.
8. Mandamus: Proof. Mandamus relief is available if the movant can
show (1) a clear right to the relief sought, (2) a corresponding clear
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:56 AM CDT

- 664 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
duty to perform the act requested, and (3) no other plain and adequate
remedy is available in the ordinary course of law.
9. ____: ____. In a mandamus action, the party seeking mandamus has
the burden of proof and must show clearly and conclusively that such
party is entitled to the particular thing the relator asks and that the
respondent is legally obligated to act.
10. Mandamus: Public Officers and Employees. Mandamus is available
to enforce the performance of ministerial duties of a public official but
is not available if the duties are quasi-judicial or discretionary.
11. ____: ____. A duty imposed by law which may be enforced by writ of
mandamus must be one which the law specifically enjoins as a duty
resulting from an office, trust, or station.
12. Mandamus. The general rule is that an act or duty is ministerial only
if there is an absolute duty to perform in a specified manner upon the
existence of certain facts.
13. ____. A duty or act is ministerial when there is no room for the exer-
cise of discretion, official or otherwise, the performance being required
by direct and positive command of the law.
14. Public Officers and Employees. A ministerial duty is not dependent
upon a public officer’s judgment or discretion—it is performed under
the conditions specified in obedience to the mandate of legal author-
ity, without regard for the exercise of the officer’s judgment upon the
propriety of the act being done.
Appeal from the District Court for Douglas County: Katie
L. Benson, Judge. Affirmed in part, and in part reversed and
remanded with direction.
Michael F. Coyle, Michael B. Duffy, and Sarah L. McGill,
of Fraser Stryker, P.C., L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, Dana N.
Livingston, and Jimmie L. Pinkham III, for appellee.
Megan S. Wright, Trenten P. Bausch, and Kimberly A.
Duggan, of Cline, Williams, Wright, Johnson & Oldfather,
L.L.P., for intervenor-appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	and
Freudenberg, JJ.

- 665 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
Funke, C.J.
I. INTRODUCTION
Under the Nebraska Constitution and subsequently enacted
statutes, payments in lieu of taxes (PILOT funds) are to be
distributed by county treasurers to eligible entities in accord-
ance with a specified formula. This case raises the question
of whether an eligible entity may obtain a writ of mandamus
directing a county treasurer to properly distribute PILOT funds.
For the reasons set forth below, we conclude that the relevant
constitutional and statutory provisions create such a ministerial
duty. Because all other prerequisites for a writ of mandamus
are met, we further conclude that the district court, although
properly vacating the first writ of mandamus, erred in denying
the renewed motion for a writ and, therefore, abused its discre-
tion in dismissing the case with prejudice. As such, we affirm
in part, and in part reverse and remand with direction for the
district court to enter an alternative writ of mandamus directing
the treasurer to show cause why a peremptory writ should not
be issued requiring the treasurer to pay the eligible entity the
amounts it was entitled to receive by law.
II. BACKGROUND
1. Westside Underpaid
Under article VIII, § 11, of the Nebraska Constitution, and
subsequently enacted Neb. Rev. Stat. §§ 70-651.01 through
70-651.05 (Reissue 2018), Douglas County School District
No. 66, also known as Westside Community School District
(Westside), was entitled to receive PILOT fund distributions
from John Ewing, in his official capacity as the county trea-
surer of Douglas County, Nebraska (treasurer).
In 	May 	2022, 	however, 	Nebraska’s Auditor 	of 	Public
Accounts issued a report showing that in 2021, the treasurer
erroneously distributed the PILOT funds in such a manner
that certain entities were overpaid, and certain entities were
underpaid. Specific to this case, the report indicated that
Westside had been underpaid by millions of dollars, while

- 666 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
Douglas County School District No. 0001, also known as
Omaha Public Schools (OPS); Douglas County; and the city
of Omaha were overpaid by similarly large amounts. Although
our record reflects differing amounts for the payment errors
at issue, the precise amounts are immaterial to the issues
before us. The report also stated it was likely that such errors
had occurred in previous years, although there was no further
discussion on this point. The auditor “recommend[ed] the
[treasurer] correct the erroneous distributions.”
None of the parties dispute that Westside was underpaid,
that other entities were overpaid, and that the underpay-
ments and overpayments constituted error on the part of
the treasurer.
In light of the underpayment, Westside filed suit against the
treasurer, seeking an alternative and peremptory writ of manda-
mus directing the treasurer to correct the errors.
2. Settlement Agreement
After the litigation began, Westside, the treasurer (reflected
in the agreement as “Douglas County”), and the city of Omaha
were parties to a settlement agreement intending to rectify
underpayments and overpayments from 2019, 2020, and 2021.
OPS declined to participate in the settlement agreement.
The settlement agreement provided that “Douglas County”
and the city of Omaha would make six equal payments to
Westside over the span of 6 years, starting in 2024 and ending
in 2029, totaling the amount they had been overpaid. To make
those payments, “Douglas County” and the city of Omaha
agreed to forward, or to have the treasurer forward, a portion of
their PILOT funds in each of those years to Westside. In other
words, the agreed-upon relief involved the use of prospective
PILOT fund distributions.
The parties to the settlement also agreed that Westside and
“Douglas County” would jointly file a stipulated motion for a
peremptory writ of mandamus ordering the treasurer to forward
future distributions to Westside “pursuant to the timing set

- 667 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
forth” in the agreement. However, the agreement further pro-
vided that if the stipulated motion is “denied for any reason,”
Westside would dismiss the petition for mandamus against
“Douglas County” with prejudice.
3. District Court Proceedings
(a) Joint Motion
Per the settlement agreement, the treasurer and Westside
filed a joint motion seeking a peremptory writ of mandamus.
The motion reflected the agreement of the parties to the
settlement that, based on article VIII, § 11, and §§ 70-651.01
through 70-651.05, the treasurer had a ministerial duty to prop-
erly distribute the PILOT funds and, by implication, to rem-
edy any errors that might have occurred during that process.
The motion requested that the writ direct the treasurer to
correct the underpayments by using the 6-year prospective
repayment structure outlined in the settlement agreement.
The motion also requested that the court order the treasurer
to reduce the future amount of OPS’ distributions as well, so
that Westside would be fully repaid by all overpaid entities
and not merely by those who were a party to the settlement
agreement.
(b) Initial Writ
The court initially issued the writ of mandamus in accord-
ance with the joint motion. The ordered writ utilized the lan-
guage from the settlement agreement and the joint motion to
specify how the repayments were to occur.
A copy of the writ was subsequently sent to OPS.
(c) OPS Seeks to Intervene
Upon receipt of the writ, OPS filed a motion to intervene
in the litigation and to vacate or quash the writ. OPS argued
that because the litigation would impact its future distributions
of PILOT funds, it was an indispensable party and, therefore,
equity required it be permitted to intervene. OPS also argued

- 668 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
that the issuance of the writ was improper because § 70-651.04
did not expressly permit relief in any manner, and certainly not
in the manner described in the writ. Specifically, OPS argued
that because the writ required the treasurer to divert funds from
overpaid entities to underpaid entities, the treasurer would still,
effectively, be violating § 70-651.04 because the distributions
would be based on a formula other than that provided by the
Nebraska Constitution and statutes.
Both Westside and the treasurer opposed OPS’ motion to
intervene. At a subsequent hearing on the intervention, the trea-
surer explained that the writ was necessary precisely because
there was a question of whether the treasurer, absent a court
order, had the authority to correct the erroneous distributions
by redistributing future PILOT funds. The treasurer was con-
cerned that such redistribution may, in fact, violate § 70-651.04,
thereby constituting official misconduct.
(d) District Court’s Order
After a hearing on the matter, the district court vacated the
writ. The court concluded that “a writ of mandamus is likely an
appropriate remedy to compel [the treasurer] to pay Westside
. . . if [the treasurer] was unwilling to do so. However, the
parties have not pointed to any statutory duty that requires cor-
rection of the underpayment in the precise manner outlined.”
(Emphasis omitted.)
The district court found that it did not need to deter-
mine whether OPS could intervene, since the basis for OPS’
intervention had been the existence of the writ, which was
being vacated.
The court did not dismiss the action, so it remained pending
as though the writ had never been entered.
(e) Subsequent Motions and Dismissal
Westside renewed its motion for a peremptory writ, this
time requesting only that the court require the treasurer to
remedy the underpayment without specifying the form of such

- 669 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
remedy. Westside maintained that the settlement’s dismissal
provision did not preclude such a writ because the court’s
decision to vacate the writ was not the same as a denial of
that writ.
In response, the treasurer filed a motion to enforce the settle-
ment agreement. In that motion, the treasurer asserted that the
court’s order vacating the writ was akin to a denial of the joint
stipulated motion and that the case should, therefore, be dis-
missed under the settlement agreement.
The court denied Westside’s motion, reasoning that the lan-
guage of § 70-651.04 did not permit it to provide the requested
relief. Instead, the court granted the treasurer’s motion to
enforce the settlement agreement, finding that all elements
of a valid contract had been met, and that no party made any
arguments of unenforceability. In fact, both Westside and the
treasurer had confirmed the ongoing validity of the settlement
agreement. As such, after reviewing the settlement agree-
ment’s dismissal provision, the court enforced the agreement
and dismissed the case with prejudice.
Westside appealed, and we moved the matter to our docket. 1
On appeal, OPS again requested to intervene, and we granted
that motion.
III. ASSIGNMENTS OF ERROR
Westside assigns that the district court erred in (1) vacat-
ing the initial peremptory writ of mandamus, (2) denying the
renewed motion for such a writ, and (3) dismissing the case
with prejudice.
IV. STANDARD OF REVIEW
[1] The decision to vacate an order any time during the term
in which the judgment is rendered is within the discretion of
the court; such a decision will be reversed only if it is shown
that the district court abused its discretion. 2
1 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
2 Schaaf v. Schaaf, 312 Neb. 1, 978 N.W.2d 1 (2022).

- 670 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
[2] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 3
[3] The construction of the Nebraska Constitution is a judi-
cial function, and the Nebraska Constitution is interpreted as a
matter of law. 4
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. 5
[5] The construction of a contract is a matter of law, in
connection with which an appellate court has an obligation to
reach an independent, correct conclusion irrespective of the
determinations made by the court below. 6
V. ANALYSIS
Westside’s primary arguments on appeal concern the district
court’s decision to vacate the first writ of mandamus and its
subsequent decision to deny the renewed motion for a writ. As
such, we first review the principles governing our case law on
writs of mandamus.
1. Foundational Principles
[6-9] We have stated that mandamus is a law action and rep-
resents an extraordinary remedy, not a writ of right. 7 Whether
to grant a writ of mandamus is within a court’s discretion. 8
Mandamus relief is available if the movant can show (1)
a clear right to the relief sought, (2) a corresponding clear
duty to perform the act requested, and (3) no other plain and
3 State v. Dat, 318 Neb. 311, 15 N.W.3d 410 (2025).
4 City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008).
5 Aguilar v. Valdez-Mendoza, 318 Neb. 402, 16 N.W.3d 130 (2025).
6 Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856
(2020).
7 State ex rel. Wagner v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020).
8 Id.

- 671 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
adequate remedy is available in the ordinary course of law. 9 In
a mandamus action, the party seeking mandamus has the bur-
den of proof and must show clearly and conclusively that such
party is entitled to the particular thing the relator asks and that
the respondent is legally obligated to act. 10
[10-14] We have before explained that mandamus is avail-
able to enforce the performance of ministerial duties of a
public official but is not available if the duties are quasi-
judicial or discretionary. 11 A duty imposed by law which may
be enforced by writ of mandamus must be one which the law
specifically enjoins as a duty resulting from an office, trust,
or station. 12 The general rule is that an act or duty is ministe-
rial only if there is an absolute duty to perform in a specified
manner upon the existence of certain facts. 13 A duty or act is
ministerial when there is no room for the exercise of discre-
tion, official or otherwise, the performance being required by
direct and positive command of the law. 14 A ministerial duty
is not dependent upon a public officer’s judgment or discre-
tion—it is performed under the conditions specified in obedi-
ence to the mandate of legal authority, without regard for the
exercise of the officer’s judgment upon the propriety of the
act being done. 15
2. District Court Did Not Err in Vacating
First Writ of Mandamus
With those principles in mind, we address Westside’s first
assignment of error. As noted above, there is no dispute that
9 Id.
10 State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 N.W.2d
134 (2009).
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.

- 672 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
Westside was underpaid PILOT funds. The parties do, how-
ever, dispute whether the treasurer has a duty to distribute the
PILOT funds properly and, by implication, a duty to correct
any mistaken distributions.
Both Westside and the treasurer maintain that article VIII,
§ 11, and §§ 70-651.01 through 70-651.05 impose a clear duty
on the treasurer to distribute the PILOT funds. From this duty,
they reason that the treasurer must also have a corresponding,
implicit duty both to provide each eligible entity with the cor-
rect amount of PILOT funds and to remedy any errors made
in calculating and distributing the funds. OPS counters that
because neither the constitutional nor the statutory language
explicitly mentions the correction of errors, there can be no
nondiscretionary duty for the treasurer to do so. To the extent
Westside seeks proper distribution to itself, we agree with
Westside and the treasurer.
Article VIII, § 11, was adopted by referendum in 1958, and
it permits the Legislature to collect PILOT funds from politi-
cal subdivisions and public corporations providing electricity
and irrigation. The constitutional provision then requires those
funds to be distributed by county treasurers to eligible enti-
ties, including school districts. As to the distribution process,
article VIII, § 11, states, in relevant part:
So much of such five (5) per cent as is in excess of
an amount equivalent to the amount paid by such public
corporation in lieu of taxes in 1957 shall be distributed
in each year to . . . the school districts located in such
city or village . . . in the proportion that their respective
property tax mill levies in each such year bear to the total
of such mill levies.
In 1959, the Legislature acted on this constitutional per-
mission by passing §§ 70-651.01 through 70-651.05. The
parties focus their attention on § 70-651.04, which, utilizing
language nearly identical to that in article VIII, § 11, states,
in relevant part:

- 673 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
All payments which are based on retail revenue from
each incorporated city or village shall be divided and
distributed by the county treasurer . . . to the school dis-
tricts located in that city or village . . . in the proportion
that their respective property tax levies in the preceding
year bore to the total of such levies, except that the only
learning community levies to be included are the com-
mon levies . . . .
Based on the plain language of the provisions at issue, there
is no question that there is a duty imposed on the treasurer
to distribute the PILOT funds to the school districts. 16 Both
provisions plainly and clearly require that the treasurer col-
lect PILOT funds and distribute the generated revenue to the
school districts. From these provisions, it is also equally plain
and clear that there is a duty to use a particular calculation
in determining the proper amount of said distributions. Both
provisions specify, in nearly identical terms, a precise formula
to be followed in calculating the amount of the distributions
for each school district. The formula provided is exact and
detailed, leaving no room for discretion in the process; there is
a correct way to distribute the PILOT funds, and that method
is the one laid out in both article VIII, § 11, and § 70-651.04.
This is the essence of a ministerial duty.
OPS attempts to argue that because the provisions do not
explicitly detail how, in the case of erroneous distributions,
corrections should be made, there can be no ministerial duty
for the treasurer to give Westside its remaining PILOT funds.
If we were to accept OPS’ argument, we would have to con-
clude, despite the plain language of the provisions, that the
treasurer’s only duty is to distribute the funds generally, but
16 See Mullins v. Box Butte County, 317 Neb. 937, 946, 13 N.W.3d 67,
73 (2024) (providing that “basic principles of statutory interpretation
generally require [a court] to give statutory language its plain and ordinary
meaning”). See, also, Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196,
846 N.W.2d 634 (2014) (concluding that rules of statutory interpretation
apply to interpretation of constitutional provisions as well).

- 674 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
that it does not matter whether such distribution is in the man-
ner adopted by the people and drafted by the Legislature. In
other words, OPS asks us to determine that Westside cannot
compel the treasurer to comply with the formula provided
and that, instead, Westside is resigned to whatever amount
the treasurer may determine is an appropriate distribution. We
reject this argument because it misses a key point: It cannot
be the case that a duty has been fulfilled if it has not been
properly completed.
In several previous opinions, we have addressed issues sim-
ilar to those currently before us. 17 In both State, ex rel. Sch.
Dist., v. White 18 and Kas v. State, 19 we were faced with a sce-
nario in which treasurers of a village were required, by ordi-
nance and statute, respectively, to pay local school districts
a precise amount of moneys generated by the ordinance and
statute in question. At issue was whether a writ of mandamus
could lie to compel the treasurers to correct the improper dis-
tribution of those funds. In White, the treasurer simply refused
to distribute any funds to one school, giving the funds instead
to another school. In Kas, the treasurer incorrectly utilized
the statutory formula, similarly resulting in one school being
paid several hundred dollars of funds owed to another school.
In both cases we concluded that a writ of mandamus was the
appropriate remedy. Specifically, we concluded that the laws
in question created a ministerial duty for the treasurers to
distribute the funds in the precise manner provided. In both
cases, we explained that the treasurers improperly distributed
the funds at their peril. As we further explained, the fact that
the treasurers had already distributed the funds to another
17 See State v. Wilcox, 17 Neb. 219, 22 N.W. 458 (1885); State v. Roderick,
23 Neb. 505, 37 N.W. 77 (1888); State, ex rel. Sch. Dist., v. White, 29 Neb.
288, 45 N.W. 631 (1890); and Kas v. State, 63 Neb. 581, 88 N.W. 776
(1902).
18 White, supra note 17.
19 Kas, supra note 17.

- 675 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
school, or that the school had accepted the lesser amount of
funds, was of no import because, as stated in Kas, “[t]here
was no occasion . . . to make any mistake, and nothing done
by [the schools] was a sufficient excuse for [the treasurers]
so doing.” 20 These conclusions and principles from White and
Kas control our analysis in this case.
As can be seen from White and Kas, as well as from our
case law in other contexts, 21 when a duty is imposed, there is
an expectation that such duty will be performed properly. If
that duty is not fulfilled in the manner provided by law, it con-
stitutes a breach of that duty.
In this case, the ministerial duty is one imposed on the
treasurer to distribute the PILOT funds based on the exact for-
mula adopted by the people and required by the Legislature.
In requiring that the treasurer distribute the PILOT funds in
a specific manner, it must be that that the treasurer’s duty is
only accomplished when he or she has facilitated that exact
and particular distribution. Because Westside was underpaid
and other entities, including OPS, were overpaid, this means
the treasurer has, by definition, failed to fulfill the ministerial
duty created by article VIII, § 11, and § 70-651.04.
Nonetheless, we conclude that the district court did not
abuse its discretion in vacating the first writ. As explained
above, a writ of mandamus can only be issued to compel a
public official to properly perform a specified and preexisting
ministerial duty.
The ministerial duty in this case is for the treasurer to dis-
tribute the funds “to the school districts . . . in the proportion
that their respective property tax levies in the preceding year
20 Id. at 585, 88 N.W. at 777.
21 See, Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003)
(discussing proper performance in context of medical malpractice);
Sturgeon v. Crosby Mortuary, 140 Neb. 82, 299 N.W. 378 (1941)
(discussing proper performance of coroner’s statutory duties); John A.
Creighton Home v. Waltman, 140 Neb. 3, 299 N.W. 261 (1941) (proper
performance in context of administration of trust).

- 676 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
bore to the total of such levies” and to take the necessary steps
to ensure proper performance of that duty is achieved, if not
done so in the first instance. The first writ issued by the court,
however, went beyond this. It purported to dictate precisely
when, where, how, and in what amounts the treasurer would
issue reimbursements to Westside. Such a writ exceeded the
bounds of the ministerial duty.
3. District Court Improperly Denied
Westside’s Renewed Motion
We turn to Westside’s second assignment of error, which
concerns the district court’s denial of Westside’s renewed
motion for a peremptory writ based on the court’s application
of the settlement agreement. We conclude that the settlement
agreement did not apply after the court vacated the initial
writ; that Westside has no other plain and adequate remedies;
and that, therefore, the renewed motion for a writ should have
been granted.
(a) Renewed Motion Not Foreclosed
by Settlement Agreement
As discussed above, per a settlement agreement, Westside
and the treasurer agreed to the filing of a joint motion for a
peremptory writ. Relevant here, the settlement agreement also
provides that “[if] that Stipulated Motion is denied for any rea-
son, [Westside] will dismiss the Petition for Mandamus against
[the treasurer] with prejudice.”
After the district court vacated the initial writ, it noted that
the action remained pending as though the writ had never
been filed. Westside renewed its motion for the writ, but the
court denied this motion, citing the settlement agreement.
The treasurer argues that the court’s vacation of the first writ
was akin to a denial and, therefore, the settlement agreement,
which required the denial of Westside’s motion along with
the dismissal of the action as a whole, was properly enforced.
Westside counters that a decision to vacate is not the same as

- 677 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
a denial and, accordingly, the dismissal provision of the settle-
ment agreement should not have been enforced. We agree
with Westside.
The terms “vacate” and “denial” have distinct meanings.
This court has stated that “[w]hen a judgment is vacated and
set aside[,] it is nullified so that the resulting situation is
precisely the same as if the judgment had never existed.” 22
A “denial,” on the other hand, is defined in Black’s Law
Dictionary as a “refusal or rejection; esp., a court’s refusal to
grant a request presented in a motion or petition.” 23 In other
words, a decision to vacate resets the playing field, while a
denial addresses the substance of a motion. In this case, it can
hardly be said that the district court’s vacation of the initial
writ—which, by definition, permitted additional filings on the
matter—had the same effect as an affirmative denial, which
would have foreclosed the possibility of Westside receiving
that relief.
Because the district court did not deny the writ in the first
instance, the dismissal provision of the settlement agreement
was not applicable. The district court erred in denying the
renewed motion on those grounds.
(b) Renewed Motion Not Foreclosed
by Substance of Writ
The substantive content of the writ does not provide grounds
for the denial of the renewed motion, either. As established by
our analysis above, Westside is entitled to the PILOT funds
and there is a duty for the treasurer to properly distribute
those funds. Further, unlike the first writ, Westside’s second
proposed writ specified only that the erroneous distributions
must be corrected but did not detail the manner for doing so.
22 Miller v. Schlereth, 151 Neb. 33, 34, 36 N.W.2d 497, 500 (1949) (syllabus
of the court).
23 Black’s Law Dictionary 547 (12th ed. 2024).

- 678 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
As such, the substance of the second writ avoids the errors
which plagued the first.
(c) No Other Adequate Remedies Exist
To grant a writ of mandamus, however, it must also be that
Westside has no other adequate remedies available to it. That
is the case here.
OPS argues that Westside has other adequate remedies avail-
able to it, “including pursuing OPS directly and other potential
remedies against Douglas County and the Treasurer.” 24
Westside counters, first, that it has no other adequate avail-
able remedies, and second, that OPS should be judicially
estopped from making the above argument because in a nearly
identical case, OPS argued that mandamus was, in fact, the
only adequate remedy in such a scenario. Again, we agree
with Westside.
The record before us contains various filings and an order
from case No. CI 21-2688, a case filed by OPS in Sarpy
County, Nebraska, against the Sarpy County treasurer, based
on the underpayment of PILOT funds to OPS. 25 In that
case, OPS argued that it should receive a writ of mandamus
because no other adequate remedies were available to resolve
such an underpayment of PILOT funds. OPS succeeded in
this argument and received an alternative writ of manda-
mus. In the present case, however, OPS argues that Westside
should be denied such a writ because there are other avenues
of relief.
Our case law is clear that the doctrine of judicial estoppel
was created for such a situation as this; the doctrine of judicial
estoppel protects the integrity of the judicial process by pre-
venting a party from taking a position inconsistent with one
successfully and unequivocally asserted by the same party in
24 Brief for intervenor-appellee at 12.
25 See State ex rel. Douglas Cty. Sch. Dist. 0001 v. Jones, No. CI-21-2688
(Sarpy Cty. Dist. Ct. Aug. 17, 2022).

- 679 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
a prior proceeding. 26 OPS received the same relief Westside
now seeks by making the same arguments Westside now
makes. To the extent that OPS’ arguments in this case are both
contrary to its previous arguments on the topic and contrary to
Westside’s arguments in this case, it is estopped from making
such arguments.
Our case law further eliminates any question of whether
a writ of mandamus is the appropriate remedy in this case.
In White, we explicitly stated that “mandamus is the proper
remedy is no longer an open question in this state. The writ
has been allowed[,] in numerous cases[,] to compel a public
officer to pay over public funds in his hands to the party
entitled thereto.” 27
This reality was again confirmed in School District v.
Burress. 28 In that case, the factual situation was, in all impor-
tant regards, the same as that in White and Kas. However, in
Burress, the school brought an action for damages against the
responsible county commissioners, in their personal capaci-
ties, for the remainder of the funds owed. We concluded that
such an action could not be maintained. We explained that
this conclusion was based, in part, on the fact that a writ of
mandamus, and not an action for damages, was the appropriate
manner by which to seek a remedy for the underpayment of
funds to the school district. We again affirm the conclusions
from these cases.
We address one final matter on this front. Westside filed a
motion requesting that this court take judicial notice of two
ongoing lawsuits Westside filed against OPS in an attempt
to recover the remaining PILOT funds directly from OPS.
Westside argues that these lawsuits would support its claim
that no other adequate remedies are available. We deferred
26 Clemens v. Emme, 316 Neb. 777, 7 N.W.3d 166 (2024).
27 White, supra note 17, 29 Neb. at 291, 45 N.W. at 632 (emphasis omitted).
28 School District v. Burress, 2 Neb. (Unoff.) 554, 89 N.W. 609 (1902).

- 680 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE EX REL. DOUGLAS CTY. SCH. DIST. NO. 66 v. EWING
Cite as 319 Neb. 663
our decision on that motion until plenary submission of the
appeal. In light of our above analysis, we now deny this
motion, since we can resolve this case without taking judicial
notice of such cases.
Thus, the district court erred in denying the renewed motion
and dismissing the action with prejudice because neither the
settlement agreement nor the substance of the proposed writ
precluded the court from granting such a motion, and our case
law has established that there are no other adequate remedies
which would preclude the granting of such a writ of mandamus.
We affirm in part, and in part reverse the order of the district
court and remand the cause with direction for the district court
to issue an alternative writ of mandamus with an order for the
treasurer to show cause why a peremptory writ should not be
issued requiring the treasurer to pay Westside the amounts it
was entitled to receive by law.
VI. CONCLUSION
Westside has met its burden of proving that it is entitled
to the PILOT funds it did not receive; that both article VIII,
§ 11, of the Nebraska Constitution and § 70-651.04 create a
ministerial duty for the treasurer to ensure PILOT funds are,
at all times, distributed in the manner provided by those pro-
visions; and that the correct remedy for the failure to properly
perform such a duty is a writ of mandamus. Although the
district court properly vacated the first writ, the court erred
in denying Westside’s renewed motion for the modified writ
of mandamus. As such, the case was improperly dismissed
with prejudice. Westside is entitled to an alternative writ
of mandamus.
Affirmed in part, and in part reversed
and remanded with direction.
Papik, J., not participating.