Nieveen v. TAX 106

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
Sandra K. Nieveen, appellant, v. TAX 106,
a Nebraska general partnership,
et al., appellees.
___ N.W.3d ___
Filed August 23, 2024. 	No. S-21-364.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an
order dismissing a complaint, the appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences of law and
fact which may be drawn therefrom, but not the plaintiff’s conclusion.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible on its face.
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Mark T. Bestul, Jennifer Gaughan, and Caitlin Cedfeldt, of
Legal Aid of Nebraska, and Christina M. Martin and Deborah
J. La Fetra, of Pacific Legal Foundation, pro hac vice, for
appellant.
Christian R. Blunk, of Harris & Associates, P.C., L.L.O., for
appellees Tax 106 and Vintage Management, LLC.
Patrick F. Condon, Lancaster County Attorney, Daniel J.
Zieg, and Eric Synowicki, for appellees Rachel Garver and
Lancaster County.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:26 AM CDT

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
Michael T. Hilgers, Attorney General, Eric J. Hamilton,
John J. Schoettle, and Lincoln J. Korell, for appellee State of
Nebraska.
Timothy L. Moll, of Rembolt Ludtke, L.L.P., for amicus
curiae Nebraska Association of County Officials.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ., and O’Gorman, District Judge.
Per Curiam.
In an earlier opinion in this case, we affirmed the district
court’s rejection of various claims Sandra K. Nieveen asserted
concerning the issuance of a tax deed to her property. See
Nieveen v. TAX 106, 311 Neb. 574, 974 N.W.2d 15 (2022) cert.
granted and judgment vacated ___ U.S. ___, 143 S. Ct. 2580,
216 L. Ed. 2d 1191 (2023) (Nieveen I). One of her claims was
that the issuance of the tax deed violated the Takings Clauses
of the U.S. and Nebraska Constitutions. One of Nieveen’s
theories was that the issuance of the tax deed effected a taking
without just compensation because it deprived her of all inter-
est in her property, which she alleged was worth substantially
more than the amount of her underlying tax debt. Nieveen
filed a petition for certiorari in the U.S. Supreme Court.
While that petition was pending, the Court held in Tyler v.
Hennepin County, 598 U.S. 631, 143 S. Ct. 1369, 215 L. Ed.
2d 564 (2023) (Tyler), that a Minnesota woman who alleged
that a county sold her condominium for $40,000 to satisfy a
$15,000 property tax bill had alleged a plausible takings claim.
The U.S. Supreme Court subsequently granted certiorari in
Nieveen’s case, vacated our judgment, and remanded the cause
to this court for further consideration in light of Tyler. See
Nieveen v. TAX 106, ___ U.S. ___, 143 S. Ct. 2580, 216 L. Ed.
2d 1191 (2023).
Having now reconsidered our earlier opinion in light of
Tyler, we conclude that the district court erred by dismissing
Nieveen’s takings claim against Vintage Management, LLC

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
(Vintage). We therefore affirm in part, and in part reverse and
remand the cause for further proceedings.
I. BACKGROUND
In our initial opinion, we set forth a detailed summary of the
entire factual and procedural history of this case. See Nieveen
I, supra. We do not repeat all of that here, but instead summa-
rize those details relevant to our opinion in this case.
1. Nieveen’s Complaint
This case began when Nieveen filed a lawsuit naming sev-
eral defendants: two private parties—TAX 106 and Vintage—
as well as Lancaster County; the Lancaster County treasurer,
in her official capacity; and the Attorney General of the State
of Nebraska, in his official capacity. Unless more detail is
required, we hereafter refer to the county and the county trea-
surer collectively as “the county.”
According to Nieveen’s operative complaint, she owned
real property in Lincoln, Nebraska, free and clear of any
encumbrances. Nieveen alleged that after she failed to pay
her property taxes as they became due, TAX 106, pursuant
to Nebraska law, purchased a tax certificate for her property
from the county treasurer for the amount of the delinquent
taxes. She alleged that TAX 106 continued to pay delin-
quent property taxes on Nieveen’s property. A summary of
Nebraska’s tax certificate sale process and the statutes that
governed at the time TAX 106 purchased the tax certifi-
cate are included in a similar case also released today. See
Continental Resources v. Fair, ante p. 391, ___ N.W.3d ___
(2024) (Fair II).
Nieveen alleged that 3 years after the tax certificate was
issued, TAX 106 sent notice to Nieveen that it would be apply-
ing for a tax deed. According to Nieveen, the county treasurer
later issued a tax deed to Vintage, TAX 106’s successor in
interest, which Vintage recorded. Nieveen alleged that at the
time the tax deed was issued, her property had an assessed

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
value of $61,900, an amount far in excess of her tax debt,
which she alleged to be under $4,000.
Based on these allegations, Nieveen asserted various claims
for relief. First, she alleged that title should be quieted in her
name because she suffered from a mental disorder and was
therefore entitled to a 5-year redemption period under Neb.
Rev. Stat. § 77-1827 (Reissue 2018). She also alleged that
the issuance of the tax deed violated several of her rights
under the U.S. and Nebraska Constitutions. Relevant here, she
alleged that the issuance of the tax deed violated her rights
under the Due Process Clauses of the U.S. and Nebraska
Constitutions, the Takings Clauses of the U.S. and Nebraska
Constitutions, and the Excessive Fines Clauses of the U.S. and
Nebraska Constitutions. With regard to her takings claims,
Nieveen alleged that the issuance of the tax deed amounted
to a taking for a private purpose and, in the alternative, that it
was a taking for a public use without just compensation.
2. District Court Proceedings
Early in the case, the district court dismissed the Attorney
General as a party without objection from Nieveen. The dis-
trict court later dismissed Nieveen’s constitutional claims for
failure to state a claim. TAX 106, Vintage, and the county
subsequently moved for summary judgment on Nieveen’s sole
remaining claim that title should be quieted in her name
because she was entitled to an extended redemption period.
The district court denied the motion for summary judgment
filed by TAX 106 and Vintage but granted the county’s motion
for summary judgment.
The matter then proceeded to trial on Nieveen’s claim that
title should be quieted in her name because she was entitled
to an extended redemption period. Following trial, the district
court entered an order finding that Nieveen was not entitled
to the extended redemption period and dismissing the case.
Nieveen filed a timely appeal, and we moved the case to
our docket.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
3. This Court’s Initial Opinion
On appeal, Nieveen assigned and argued that the district
erred by finding that she did not suffer from a mental disor-
der and was therefore not entitled to an extended redemption
period under § 77-1827. She also assigned and argued that the
district court erred by dismissing her constitutional claims.
We found that the district court did not err in determin-
ing that Nieveen was not entitled to an extended redemption
period. We also found that the district court did not err in dis-
missing her constitutional claims. With respect to Nieveen’s
takings claims, we relied on our decision in Continental
Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313 (2022),
cert. granted and judgment vacated ___ U.S. ___, 143 S. Ct.
2580, 216 L. Ed. 2d 1191 (2023) (Fair I), in which, just a few
months before, we had rejected arguments essentially identical
to Nieveen’s.
After our decision was issued, Nieveen filed a petition for a
writ of certiorari in the U.S. Supreme Court.
4. Tyler v. Hennepin County
While Nieveen’s petition for certiorari was pending, the
U.S. Supreme Court issued a decision in Tyler v. Hennepin
County, 598 U.S. 631, 143 S. Ct. 1369, 215 L. Ed. 2d 564
(2023). In that case, a plaintiff alleged that a Minnesota
county had violated the Takings Clause and Excessive Fines
Clause when it seized her condominium to satisfy a $15,000
tax debt, sold the property for $40,000, and kept the excess
proceeds. The federal district court dismissed the complaint
for failure to state a claim, and the U.S. Court of Appeals for
the Eighth Circuit affirmed. See Tyler v. Hennepin County, 26
F.4th 789 (8th Cir. 2022). The U.S. Supreme Court granted
certiorari and then reversed, finding that the plaintiff had
alleged a plausible takings claim.
A summary of the Court’s opinion in Tyler appears in our
opinion in Fair II released today. See Continental Resources v.
Fair, ante p. 391, ___ N.W.3d ___ (2024).

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
5. Initial Opinion Vacated;
Cause Remanded
After issuing its decision in Tyler, the U.S. Supreme Court
granted Nieveen’s petition for certiorari, vacated our prior
decision, and remanded the cause for further consideration in
light of Tyler. The U.S. Supreme Court took the same action
in response to a petition for certiorari filed in response to our
decision in Fair I. See Fair v. Continental Resources, ___ U.S.
___, 143 S. Ct. 2580, 216 L. Ed. 2d 1191 (2023).
After remand, we directed the parties to file supplemental
briefs addressing the effect of Tyler on this appeal. After sup-
plemental briefs were filed, we held oral argument.
II. ASSIGNMENTS OF ERROR
Nieveen assigns, renumbered and restated, that the district
court erred by (1) finding she did not suffer from a mental
disorder under § 77-1827 at the time of the tax certificate
sale, (2) dismissing her claim that the issuance of the tax deed
violated her rights under the Due Process Clauses of the U.S.
and Nebraska Constitutions, (3) dismissing her claim that the
issuance of the tax deed violated her rights under the Takings
Clauses of the U.S. and Nebraska Constitutions, and (4) dis-
missing her claim that the issuance of the tax deed violated
her rights under the Excessive Fines Clauses of the U.S. and
Nebraska Constitutions.
III. STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo. Edwards v. Estate of Clark, 313 Neb. 94,
982 N.W.2d 788 (2022). When reviewing an order dismiss-
ing a complaint, the appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the
plaintiff’s conclusion. Id.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
IV. ANALYSIS
1. Takings
The U.S. Supreme Court directed us to further consider
our initial decision in this case in light of Tyler, which, as
explained above, analyzed a claim under the Takings Clause.
We thus begin our analysis with Nieveen’s arguments regard-
ing the dismissal of her takings claim.
The Fifth Amendment to the U.S. Constitution states, “[N]or
shall private property be taken for public use, without just
compensation.” The Nebraska Constitution states, “The prop-
erty of no person shall be taken or damaged for public use
without just compensation therefor.” Neb. Const. art. I, § 21.
We have held that because Nebraska’s constitutional right to
just compensation includes just compensation where property
has been “taken or damaged,” it is broader than the corre-
sponding federal right. See Henderson v. City of Columbus,
285 Neb. 482, 827 N.W.2d 486 (2013). But aside from giving
effect to that difference in language, we have treated the fed-
eral and state rights as “coterminous.” Id. at 490, 827 N.W.2d
at 493. Because Nieveen does not allege or argue that either
the state or federal Takings Clause offers more protection in
this case, we apply the same analysis to both claims.
[3] Our analysis of Nieveen’s takings claims relies heavily
on the analysis in our opinion in Fair II released today. See
Continental Resources v. Fair, ante p. 391, ___ N.W.3d ___
(2024). There is, however, one procedural difference between
Fair II and this case. In Fair II, the original owner’s consti-
tutional claims were resolved at the summary judgment stage,
while, in this case, they were resolved by a motion to dismiss
for failure to state a claim. In this case, then, we analyze
whether Nieveen’s operative complaint has alleged sufficient
facts to state a plausible takings claim. To prevail against a
motion to dismiss for failure to state a claim, a plaintiff must
allege sufficient facts, accepted as true, to state a claim to
relief that is plausible on its face. Edwards, supra.

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
(a) Nieveen’s Private Use Argument
Nieveen alleged and argued that the issuance of the tax
deed to Vintage amounted to an unconstitutional taking for a
private use. As we explain in our opinion in Fair II released
today, however, we find that the issuance of a tax deed does
not amount to an unconstitutional private taking. Accordingly,
Nieveen has not alleged a plausible claim based on a private
taking theory.
(b) Nieveen’s Just Compensation Argument
Nieveen also alleged and argued in the alternative that if
a private taking did not occur, the issuance of the tax deed
nonetheless effected a taking for which she was entitled to
just compensation. In our initial opinion in Fair I, we con-
cluded that no taking could occur because Nebraska law did
not recognize that a former owner of property who lost title
to his or her home through the issuance of a tax deed had a
protected property interest. In our initial opinion in this case,
we relied on Fair I to conclude that Nieveen had not alleged
a plausible claim. See Nieveen v. TAX 106, 311 Neb. 574, 974
N.W.2d 15 (2022), cert. granted and judgment vacated ___
U.S. ___, 143 S. Ct. 2580, 216 L. Ed. 2d 1191 (2023).
As we explain in Fair II, however, the conclusion in our
initial opinion that a taking could not have occurred is not
consistent with Tyler, supra. We now recognize that a former
property owner who loses title through the issuance of a tax
deed has a protected property interest to the extent the value
of his or her property exceeded his or her tax debt. See Fair
II, supra. Accordingly, Nieveen has adequately alleged that
a protected property interest was taken from her without just
compensation.
As in Fair II, this leaves the question of which party
could be responsible to pay just compensation. In Fair II,
we determined that under Nebraska’s statutes governing tax
certificates and tax deeds, the holder of a tax certificate, by
requesting and obtaining a tax deed, commits a taking if the

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
value of the property exceeds the tax debt. We also deter-
mined that the tax certificate holder engaged in state action
and thus can be liable to pay just compensation. See id.
Finally, we determined that the county and county treasurer
were not potentially liable to pay just compensation for their
role in the process. See id.
Applying that analysis here, it follows that Nieveen alleged
a 	plausible 	takings 	claim 	against 	Vintage. 	According 	to
Nieveen’s complaint, Vintage requested and obtained the tax
deed that deprived Nieveen of the equity in her property. It
also follows that Nieveen did not allege a plausible takings
claim against any of the other defendants.
2. Excessive Fines
Although Nieveen’s post-Tyler argument focuses primar-
ily on her claim for just compensation under the Takings
Clause, she also makes a brief argument regarding her claim
under the Excessive Fines Clauses of the U.S. and Nebraska
Constitutions. On this point, Nieveen relies on a concurring
opinion of two justices in Tyler. See Tyler, supra (Gorsuch, J.,
concurring; Jackson, J., joins).
In Tyler, the majority declined to reach the plaintiff’s argu-
ment that the district court erred by dismissing her claim
under the Excessive Fines Clause. The plaintiff in that case
had acknowledged that relief under the Takings Clause would
“‘fully remedy [her] harm.’” Id., 598 U.S. at 647. Given that
acknowledgment and its determination that the plaintiff had
plausibly alleged a claim under the Takings Clause, the Court
found that it was not necessary to analyze the Excessive Fines
Clause claim.
Nieveen makes a similar concession here. In her supple-
mental brief, she acknowledges that just compensation under
the Takings Clause would provide complete relief and that
thus, if we recognize a viable claim under the Takings Clause,
we “might similarly decline to decide the excessive fines
questions.” Supplemental brief for appellant at 28. Because
we have found that Nieveen has a viable claim for just

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
NIEVEEN v. TAX 106
Cite as 317 Neb. 425
compensation under the Takings Clause, we decline to recon-
sider our initial opinion’s analysis of Nieveen’s Excessive
Fines Clause claim.
3. Other Assignments of Error
We find nothing in Tyler that causes us to reconsider our ini-
tial opinion’s rejection of Nieveen’s other assignments of error.
Accordingly, we find no merit to those assignments of error.
V. CONCLUSION
We find that Nieveen alleged a plausible takings claim
against Vintage. We therefore reverse the dismissal of Nieveen’s
takings claim against Vintage and remand the cause for further
proceedings. Because we find that Nieveen has failed to allege
any other plausible claims, we affirm the district court’s judg-
ment in all other respects.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Stacy, J., not participating.
Papik, J., concurring in part, and in part dissenting.
For the reasons stated in my separate opinion in Continental
Resources v. Fair, ante p. 391, ___ N.W.3d ___ (2024), it is my
view that Nieveen’s complaint adequately alleges that a pro-
tected property interest was taken from her, but that Lancaster
County, rather than Vintage Management, would be liable to
pay just compensation for any taking. I would remand the
cause for further proceedings on Nieveen’s claim for just com-
pensation against the county.
Miller-Lerman, J., joins in this concurrence and dissent.