Niemoller v. City of Papillion

and make findings of fact and conclusions of law with respect
thereto. State v. Jim, 275 neb. 48, 747 n.W.2d 40 (2008).
concLusion
the district court erred in granting epting a new direct appeal
without holding an evidentiary hearing. this is not permitted by
the nebraska postconviction act and constitutes reversible error.
thus, we reverse the judgment of the district court and remand
the cause for further proceedings.
reverSeD aND reMaNDeD for
further proCeeDINgS.
D aNIel J. NIeMoller , appellaNt , v .
CIty of papIllIoN, appellee .
752 n.W.2d 32
filed July 3, 2008. 	no. s-07-893.
. Statutes: Appeal and Error. statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
2. Statutes. statutory language is to be given its plain and ordinary meaning.
3. Statutes: Appeal and Error. an appellate court will not resort to interpre-
tation to ascertain the meaning of statutory words which are plain, direct,
and unambiguous.
4. Statutes. a court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
5. Constitutional Law: Appeal and Error. a constitutional issue not presented to or
passed upon by the trial court is not appropriate for consideration on appeal.
appeal from the district court for sarpy county: wIllIaM b.
zaStera, Judge. affirmed.
Leanne a. Gifford, of scheldrup, blades, schrock, sand &
aranza, p.c., for appellant.
michaelle L. baumert and monica k. hoppe, of husch,
blackwell & sanders, L.L.p., for appellee.
heavICaN, 	c.J., 	wrIght, 	C oNNolly, 	gerrarD, 	S tephaN,
MCC orMaCk, and MIller -lerMaN, JJ.
40 	276 nebraska reports
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

S tephaN, J.
the issue presented in this appeal is whether compliance
with the claim requirement of neb. rev. stat. § 6-726 (reissue
997) is a condition precedent to an action against a city of the
first class under the nebraska Wage payment and collection
act (nWpca), neb. rev. stat. §§ 48-228 to 48-232 (reissue
2004). We conclude that it is.
backGround
daniel J. niemoller commenced this action against the city
of papillion, nebraska, in the district court for sarpy county
on february 23, 2007. he alleged that he was an employee of
the city until august , 2006, and that the city had failed to
compensate him for certain wages earned prior to the termina-
tion of his employment. in his complaint, niemoller alleged
that he served notice of his claim on the city on or about
december 4, 2006.
the city denied this allegation and affirmatively alleged that
niemoller failed to comply with the procedural prerequisites of
§ 6-726. that statute applies to cities of the first class, and pro-
vides in part that “[a]s a condition precedent to maintaining an
action for a claim, other than a tort claim as defined in section
3-903, the claimant shall file such claim within ninety days of
the accrual of the claim in the office of the city clerk.”
after filing its answer, the city moved for summary judg-
ment. at a hearing on its motion, the city offered and the court
received an affidavit of the city clerk stating that niemoller had
never filed a claim for unpaid wages with her office. the court
also received the affidavit of dan hoins, the city administrator.
hoins averred that papillion was a city of the first class and
that on december 4, 2006, he received a letter from niemoller’s
attorney, asserting a claim for unpaid sick leave alleged to con-
stitute “wages” under the nWpca. hoins further averred that
he did not provide a copy of the letter to the city clerk and that
the “offices of the papillion city administrator and the papillion
city clerk are separate offices with different responsibilities.”
in opposition to the motion, niemoller offered and the court
received hoins’ deposition; a copy of niemoller’s attorney’s
letter to hoins dated december , 2006, asserting his unpaid
niemoLLer v. citY of papiLLion 	4
cite as 276 neb. 40

wage claim; and a letter from the city’s insurance administrator
denying coverage for niemoller’s claim. in his deposition, hoins
testified that the city clerk is one of his subordinates but does not
report directly to him.
the district court granted the city’s motion for summary
judgment. the court determined that niemoller was required by
§ 6-726 to file his claim with the city clerk within 90 days of its
accrual and that his attorney’s letter to the city administrator did
not satisfy this requirement. accordingly, the court dismissed
niemoller’s complaint. he perfected this timely appeal, which
we moved to our docket pursuant to our statutory authority to
regulate the caseloads of the appellate courts of this state.
assiGnments of error
niemoller assigns, restated and consolidated, that the dis-
trict court erred in () granting the city’s motion for summary
judgment, (2) finding he had to comply with § 6-726 in
order to bring his nWpca lawsuit, (3) failing to find that he
substantially complied with § 6-726, and (4) failing to find
that § 6-726 is unconstitutional under the nebraska and u.s.
constitutions because it violates his equal protection rights, it
is special legislation, it impairs his access to the courts, and it
violates his substantive and procedural due process rights.
standard of reVieW
[] statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.2
anaLYsis
what D oeS § 16-726 requIre ?
[2-4] statutory language is to be given its plain and ordinary
meaning.3 an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct,
 see neb. rev. stat. § 24-06(3) (reissue 995).
2 Clark v. Clark, 275 neb. 276, 746 n.W.2d 32 (2008); In re Ervin W.
Blauhorn Revocable Trust, 275 neb. 256, 746 n.W.2d 36 (2008).
3 In re Ervin W. Blauhorn Revocable Trust, supra note 2; Zach v. Nebraska
State Patrol, 273 neb. , 727 n.W.2d 206 (2007).
42 	276 nebraska reports

and unambiguous.4 a court must attempt to give effect to all
parts of a statute, and if it can be avoided, no word, clause, or
sentence will be rejected as superfluous or meaningless.5 section
6-726 provides:
all liquidated and unliquidated claims and accounts pay-
able against a city of the first class shall: () be presented
in writing; (2) state the name and address of the claimant
and the amount of the claim; and (3) fully and accurately
identify the items or services for which payment is claimed
or the time, place, nature, and circumstances giving rise to
the claim.
as a condition precedent to maintaining an action for a
claim, other than a tort claim as defined in section 3-903,
the claimant shall file such claim within ninety days of the
accrual of the claim in the office of the city clerk.
the city clerk shall notify the claimant or his or
her agent or attorney by letter mailed to the claimant’s
address within five days if the claim is disallowed by the
city council.
no costs shall be recovered against such city in any
action brought against it for any claim or for any claim
allowed in part which has not been presented to the city
council to be audited, unless the recovery is for a greater
sum than the amount allowed with the interest due.
in this case, we are concerned with the second and fourth
paragraphs of the statute. the plain language of the second
paragraph states that filing a claim with the city clerk within
90 days of its accrual is a condition precedent to maintaining
an action on the claim. We held in Crown Products Co. v. City
of Ralston6 that this language establishes a “procedural prec-
edent to commencement of a claim” and that noncompliance
is a defense which may be asserted by the city in a subsequent
action. but niemoller argues that the fourth paragraph of the
4 Id.
5 Zach v. Nebraska State Patrol, supra note 3; Gilbert & Martha Hitchcock
Found. v. Kountze, 272 neb. 25, 720 n.W.2d 3 (2006).
6 Crown Products Co. v. City of Ralston, 253 neb. , 6, 567 n.W.2d 294, 297
(997).
niemoLLer v. citY of papiLLion 	43
cite as 276 neb. 40

statute contemplates an alternative procedure whereby “a claim-
ant may file suit without having presented a claim to the city,”
with the only consequence being “forfeiture of recovering court
costs on a successful claim.”7 the city counters that although
“the cost provision contained in the fourth paragraph of the
statute is not entirely clear as to when costs may be awarded in
actions against cities, the ambiguity in the fourth sentence does
not erase the certainty of the previous sentences.”8 We agree that
the fourth paragraph of the statute creates an ambiguity, and we
therefore consult legislative history to ascertain the intent of
the Legislature.9
all four paragraphs of the current statute were included in
990 neb. Laws, L.b. 044. the previous version of the statute
required that certain claims against a city of the first class must
be filed with the city clerk, but did not specify a time limit for
such filing.0 the principal introducer of L.b. 044 stated that
the purpose of the bill was to “improve the procedure” by pro-
viding a “specified time” for filing of claims with cities of the
first class. after the bill was advanced by the committee on
urban affairs, its chairman stated on the floor that the “principle
substantial change” in L.b. 044 was “the requirement that a
claimant file a claim within 90 days of accrual of the claim with
the city clerk as a condition precedent to maintain [an] action
for the claim.”2 the legislative history is silent as to the fourth
paragraph of the current § 6-726. Given the clarity in which the
90-day filing requirement is expressed in the second paragraph
of the statute and its significance as reflected in the legislative
history, we are unwilling to read the fourth paragraph of the
statute as negating or providing an alternative to the require-
ment that a timely claim must be filed with the city clerk as a
7 brief for appellant at 2, 4.
8 brief for appellee at 4.
9 see, Knapp v. Village of Beaver City, 273 neb. 56, 728 n.W.2d 96 (2007);
Zach v. Eacker, 27 neb. 868, 76 n.W.2d 437 (2006).
0 § 6-726 (reissue 987).
 committee on urban affairs hearing, 9st Leg., 2d sess. 59 (Jan. 23,
990).
2 floor debate, 9st Leg., 2d sess. 9294 (feb. 7, 990).
44 	276 nebraska reports

“condition precedent” to maintaining an action on the claim.
We therefore adhere to our holding in Crown Products Co. that
noncompliance with the filing requirement of § 6-726 may be
asserted as a defense in an action to recover on a claim against a
city of the first class. the city did so in this case, and we there-
fore examine the merit of its position.
DID NIeMoller S ubStaNtIally C oMply wIth § 16-726?
niemoller offered no evidence to contradict the statement
in the city clerk’s affidavit that “niemoller has never filed a
claim with the papillion city clerk’s office asserting a wage
claim against the city for unused sick leave related to his past
employment.” instead, he argues that his claim letter submit-
ted to the city administrator constituted substantial compliance
with § 6-726.
the filing requirement imposed by § 6-726 is analogous
to that of the political subdivisions tort claims act,3 in that
both constitute a “procedural precedent” to commencement of
a judicial action.4 in those cases, we have applied a substantial
compliance analysis when there is a question about whether
the content of the required claim meets the requirements of the
statute.5 however, we have expressly and repeatedly held that
if the notice is not filed with the person designated by statute
as the authorized recipient, a substantial compliance analysis is
not applicable.6 We reach the same conclusion here. because
niemoller did not file a claim with the city clerk, he did not
comply with § 6-726.
3 neb. rev. stat. §§ 3-90 to 3-926 (reissue 997 & cum. supp. 2006).
4 § 3-905; Crown Products Co. v. City of Ralston, supra note 6.
5 Chicago Lumber Co. v. School Dist. No. 71, 227 neb. 355, 47 n.W.2d 757
(988).
6 Estate of McElwee v. Omaha Transit Auth., 266 neb. 37, 664 n.W.2d
46 (2003); Schoemaker v. Metropolitan Utilities Dist., 245 neb. 967, 55
n.W.2d 675 (994); Willis v. City of Lincoln, 232 neb. 533, 44 n.W.2d 846
(989).
niemoLLer v. citY of papiLLion 	45
cite as 276 neb. 40

C oNStItutIoNal ISSueS
[5] a constitutional issue not presented to or passed upon by
the trial court is not appropriate for consideration on appeal.7 in
this case, the district court did not address the constitutionality
of § 6-726, and the record does not reflect that it was presented
with any constitutional issue. niemoller did not challenge the
constitutionality of § 6-726 in his complaint, and there is
no indication that he sought leave to amend his complaint in
order to raise the issue after the city asserted its noncompli-
ance defense.
prior to the hearing on the city’s motion for summary judg-
ment, niemoller’s counsel filed a “notice of service” stating
“[p]ursuant to neb. rev. stat. § 25-2,59, [niemoller] has
served notice on the attorney General of nebraska of his
intent to argue that neb. rev. stat. § 6-726 is unconstitu-
tional.” the statute cited in this notice is a part of the uniform
declaratory Judgments act as enacted in nebraska, neb. rev.
stat. §§ 25-2,49 to 25-2,64 (reissue 995 & cum. supp.
2006), but the record does not reflect that niemoller ever sought
declaratory relief in this action. more importantly, the record
does not reflect which, if any, of the constitutional arguments
asserted in this appeal were actually presented to the district
court. there was no mention of constitutional issues in the
evidentiary portion of the summary judgment hearing, and the
ensuing arguments were made off the record.
because the record does not reflect that the constitutional
issues asserted in this appeal were presented to or passed upon
by the district court, we do not address them.
concLusion
for the reasons discussed, we conclude that the district court
did not err in granting the city’s motion for summary judgment
and dismissing the action. We therefore affirm the judgment of
the district court.
affIrMeD.
7 Mason v. City of Lincoln, 266 neb. 399, 665 n.W.2d 600 (2003); K N
Energy v. Village of Ansley, 266 neb. 64, 663 n.W.2d 9 (2003).
46 	276 nebraska reports