Koch v. Cedar Cty. Freeholder Bd.

AAron Koch et Al ., AppellAnts , v. cedAr county
F reeholder BoArd, Appellee , And richArd r.
pinKelmAn et Al ., intervenors-Appellees.
AAron Koch et Al ., AppellAnts , v. cedAr county
F reeholder BoArd, Appellee , And dennis A.
A rens , sr ., et Al ., intervenors-Appellees.
759 N.W.2d 464
Filed January 9, 2009. 	Nos. S-07-837, S-07-1026.
1. Schools and School Districts: Equity. The actions of a county freeholder board
under Neb. Rev. Stat. § 79-458 (Cum. Supp. 2006) sound in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate
court resolves questions of law and fact independently of the trial court’s
determinations.
3. Schools and School Districts: Property: Pleadings. An error in the legal
description of real property will not invalidate a petition to alter a school district
boundary where it is clear from a reading of the entire petition what real property
is intended, and such error will therefore not defeat the jurisdiction of the free-
holder board.
4. Jurisdiction: Pleadings. The failure to properly verify a petition does not affect
the subject matter jurisdiction of a court.
5. Interventions. The interest required as a prerequisite to intervention under Neb.
Rev. Stat. § 25-328 (Reissue 2008) is a direct and legal interest in the contro-
versy, which is an interest of such character that the intervenor will lose or gain
by the direct operation and legal effect of the judgment which may be rendered in
the action.
6. Parties: Words and Phrases. An indispensable or necessary party to a suit is
one whose interest in the subject matter of the controversy is such that the con-
troversy cannot be finally adjudicated without affecting the indispensable party’s
interest, or which is such that not to address the interest of the indispensable party
would leave the controversy in such a condition that its final determination may
be wholly inconsistent with equity and good conscience.
7. Trial: Words and Phrases: Appeal and Error. A trial de novo on the record is
literally a new hearing and not merely new findings of fact based upon a previ-
ous record.
8. Trial: Evidence: Appeal and Error. A trial de novo is conducted as though the
earlier trial had not been held in the first place, and evidence is taken anew as
such evidence is available at the time of the trial on appeal.
9. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court
will give statutory language its plain and ordinary meaning.
Appeals from the District Court for Cedar County: WilliAm
BinKArd, Judge. Affirmed.
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1009
Cite as 276 Neb. 1009
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

David A. Domina, of Domina law Group, P.C., l.l.O.,
for appellants.
Jeffrey l. hrouda and George l. hirschbach for appellees
and intervenors-appellees.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAcK, and miller-lermAn, JJ.
heAvicAn, c.J.
INTRODUCTION
The Cedar County freeholder board approved the transfer
of real estate from the Wynot Public School District to the
hartington Public School District. Several taxpayers from the
Wynot school district appealed to the district court, which
affirmed the Cedar County freeholder board’s actions. Those
taxpayers now appeal the judgments of the district court.
FACTUAl bACkGROUND
In 2006, approximately 400 individual owners of real estate
(freeholders) filed petitions with the Cedar County freeholder
board (hereinafter the board) asking that their respective prop-
erties be transferred from the Wynot Public School District to
the hartington Public School District as permitted by Neb. Rev.
Stat. § 79-458 (Cum. Supp. 2006). Over the course of three
board meetings held on September 28, 2006, and February 15
and May 25, 2007, the freeholders’ petitions were approved
and the property transferred from the Wynot school district to
the hartington school district.
Aaron koch, Vanita Arndt, Duane bair, James eskens,
and Nancy Rolfes (collectively the taxpayers)—all taxpayers
from the Wynot school district—objected to the transfers and
appealed to the district court pursuant to § 79-458(5). The
district court permitted many of the original petitioners to
intervene, concluding they were necessary parties to the actions
in the district court. The board’s actions at the September 28,
2006, and February 15, 2007, meetings were consolidated
into one action before the district court and are now at issue
in case No. S-07-837; the actions of the board at the May 25
1010 	276 NebRASkA RePORTS

meeting were separately decided and are on appeal in case
No. S-07-1026.
The parties stipulated to the following: (1) both the Wynot
and the hartington school districts are Class III districts;
(2) in the 2004-05, 2005-06, and 2006-07 school years, the
Wynot school district had an average daily attendance in
grades 9 through 12 of fewer than 60 students; (3) effective
for the 2006-07 school year, the Wynot school district had
voted to exceed the maximum levy limit under Neb. Rev. Stat.
§ 77-3442 (Cum. Supp. 2006); (4) the high school for the
Wynot school district was within 15 miles on a maintained
public highway or road of the high school of the hartington
school district; (5) neither the Wynot school district nor the
hartington school district was a member of a learning commu-
nity; (6) the hartington school district is an accredited district;
(7) all of the freeholders’ petitions filed before the board were
approved by a majority of the members of the school board and
board of education of the hartington school district prior to the
hearings before the board.
After a hearing, the district court transferred to the hartington
school district all real estate determined to be contiguous to that
district. The taxpayers appealed. The cases were consolidated
for briefing and oral argument, and we granted the taxpayers’
petition to bypass.
ASSIGNMeNTS OF eRROR
On appeal, the taxpayers assign that (1) the board and the
district court lacked subject matter jurisdiction, because the
freeholders’ petitions before the board failed to allege neces-
sary statutory components, failed to bear the signatures of all
property owners, failed to describe real estate in legally suf-
ficient terms, and failed to allege that either the hartington
school district or the Wynot school district was not part of
a learning community; (2) the district court erred in allow-
ing the freeholders to intervene; (3) the district court erred in
allowing the freeholders to file new petitions correcting the
deficiencies in their original petitions; (4) the district court
erred in transferring the property in question due to the various
deficiencies of the petitions; and (5) the district court erred in
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1011
Cite as 276 Neb. 1009

its interpretation of the meaning of “contiguous” and therefore
erred in allowing the transfer of the real estate in question
because it was not contiguous.
STANDARD OF ReVIeW
[1,2] The 	actions 	of 	a 	county 	freeholder 	board 	under
§ 79-458 sound in equity.1 On appeal from an equity action,
an appellate court resolves questions of law and fact indepen-
dently of the trial court’s determinations.2
ANAlySIS
§ 79-458.
because § 79-458 is central to the disposition of these
appeals, we first set forth the relevant portions of that statute.
(1) Any freeholder or freeholders, person in possession
or constructive possession as vendee pursuant to a con-
tract of sale of the fee, holder of a school land lease under
section 72-232, or entrant upon government land who has
not yet received a patent therefor may file a petition with
a board consisting of the county assessor, county clerk,
and county treasurer, asking to have any tract or tracts
of land described in the petition set off from an existing
Class II or III school district in which the land is situated
and attached to an accredited district which is contiguous
to such tract or tracts of land if:
(a) The Class II or III school district has had an aver-
age daily membership in grades nine through twelve of
less than sixty for the two consecutive school fiscal years
immediately preceding the filing of the petition;
(b) The Class II or III school district has voted to
exceed the maximum levy established pursuant to subdi-
vision (2)(a) of section 77-3442, which vote is effective
for the school fiscal year in which the petition is filed or
for the following school fiscal year;
1 See In re Plummer Freeholder Petition, 229 Neb. 520, 428 N.W.2d 163
(1988).
2 Shoemaker v. Shoemaker, 275 Neb. 112, 745 N.W.2d 299 (2008).
1012 	276 NebRASkA RePORTS

(c) The high school is within fifteen miles on a main-
tained public highway or maintained public road of
another high school; and
(d) Neither school district is a member of a learning
community.
For purposes of determining whether a tract of land is
contiguous, all petitions currently being considered by the
board shall be considered together as a whole.
(2) The petition shall state the reasons for the proposed
change and shall show with reference to the land of each
petitioner: (a) That (i) the land described in the petition
is either owned by the petitioner or petitioners or that
he, she, or they hold a school land lease under section
72-232, are in possession or constructive possession as
vendee under a contract of sale of the fee simple interest,
or have made an entry on government land but have not
yet received a patent therefor and (ii) such tract of land
includes all such contiguous land owned or controlled by
each petitioner; (b) that the land described in the petition
is located in a Class II or III district that is not a member
of a learning community, the district has had an average
daily membership in grades nine through twelve of less
than sixty for the two consecutive school fiscal years
immediately preceding the filing of the petition, the dis-
trict has voted to exceed the maximum levy established
pursuant to subdivision (2)(a) of section 77-3442 as pro-
vided in subdivision (1)(b) of this section, and the land
is to be attached to an accredited school district which
is contiguous to such tract or tracts of land and which is
not a member of a learning community; and (c) that such
petition is approved by a majority of the members of the
school board of the district to which such land is sought
to be attached.
(3) The petition shall be verified by the oath of each
petitioner. Notice of the filing of the petition and of the
hearing on such petition before the board constituted as
prescribed in subsection (1) or (4) of this section shall
be given at least ten days prior to the date of such hear-
ing by one publication in a legal newspaper of general
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1013
Cite as 276 Neb. 1009

circulation in each district and by posting a notice on the
outer door of the schoolhouse in each district affected
thereby, and such notice shall designate the territory to be
transferred. Such board shall, after a public hearing on the
petition and a determination that all requirements of this
section have been complied with, change the boundaries
of the school districts so as to set off the land described
in the petition and attach it to such district pursuant to
the petition.
. . . .
(5) Appeals may be taken from the action of such
board or, when such board fails to agree, to the district
court of the county in which the land is located within
twenty days after entry of such action on the records of
the board by the county clerk of the county in which the
land is located or within twenty days after March 15 if
such board fails to act upon such petition, in the same
manner as appeals are now taken from the action of the
county board in the allowance or disallowance of claims
against the county.
We are aware that § 79-458 has been amended several times
since the first freeholder petitions were filed in this case.
The parties have not presented any argument regarding these
amendments, and we have determined that these changes do
not affect the analysis of these appeals. Therefore, we will cite
to the 2006 version of the statute for the sake of simplicity
and convenience.
Subject Matter Jurisdiction.
In their first assignment of error, the taxpayers argue that
the district court lacked subject matter jurisdiction over the
freeholders’ petitions. In particular, the taxpayers contend that
the petitions filed before the board failed to comply with the
requirements of § 79-458, because the petitions failed to allege
necessary statutory components, failed to bear the signatures
of all property owners, failed to describe real estate in legally
sufficient terms, and failed to allege that the hartington and
Wynot school districts were not part of a learning commu-
nity. The taxpayers assert that such deficiencies prevented the
1014 	276 NebRASkA RePORTS

board, and in turn the district court, from exercising jurisdic-
tion over the petitions.
We agree that the filing of a petition “asking to have any
tract or tracts of land . . . set off from an existing Class II
or III school district”3 is required under § 79-458 before the
board has jurisdiction to transfer the requested tracts of land
from one school district to another. however, we disagree
with the taxpayers’ contention that the allegations in that peti-
tion must contain no deficiencies before the board can exer-
cise jurisdiction.
[3] First, many of the so-called deficiencies alleged by the
taxpayers are not necessarily deficiencies within the mean-
ing of § 79-458. The taxpayers first contend that the petitions
filed before the board had insufficient legal descriptions. but
this court has held that “‘[a]n error in the description will
not invalidate the petition [to alter a school district boundary]
where it is clear from a reading of the entire petition what land
is intended,’”4 and we have noted that such error will not defeat
the jurisdiction of the board.5 And there is no argument that the
descriptions were insufficient to describe the land in question,
only that the description was not a complete legal description.
We therefore conclude that the insufficiency of certain legal
descriptions does not prevent the board from exercising juris-
diction over the petitions.
The taxpayers next argue that some of the petitions lacked
the signatures of all necessary property owners. We note that
the statute does not explicitly require the approval of all prop-
erty owners, but instead, of all petitioners.6 We decline to hold
that the failure to have all property owners sign the relevant
petition prevents the board from exercising jurisdiction when
such is not explicitly required by statute. Moreover, notice of
any hearings before a freeholder board is required under the
3 § 79-458(1).
4 Schilke v. School Dist. No. 107, 207 Neb. 448, 453, 299 N.W.2d 527, 530
(1980).
5 Id.
6 § 79-458(3).
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1015
Cite as 276 Neb. 1009

statute7; thus, landowners also have an opportunity to object to
the transfer, if desired.
[4] The taxpayers also assert that some of the petitions
lacked proper notarization and were therefore invalid. The
statute does require that the petitions filed before the board
be verified,8 though it does not explicitly set forth how the
petition should be verified. Assuming the taxpayers are correct
in asserting that the lack of a proper notary would prevent a
petition from being verified under the statute, we nevertheless
conclude that such does not affect the board’s jurisdiction,
as this court has previously held that the failure to properly
verify a petition does not affect the subject matter jurisdiction
of a court.9
We agree that the omission of the allegation that neither
district was part of a learning community was a deficiency
in the pleading.10 however, we conclude that this deficiency
did not defeat the board’s jurisdiction. This is so because at
the time of the filing of these petitions before the board, the
relevant statute, Neb. Rev. Stat. § 79-2102 (Cum. Supp. 2006),
provided that requests to form a learning community be made
with the Secretary of State by March 1 in order to be effective
on September 1. This statute was not effective until July 14,
2006. As such, the first deadline to form a learning commu-
nity was March 1, 2007, with that learning community to take
effect on September 1. At the time the petitions were filed in
September 2006, it would have been a legal impossibility for
either school district to be part of a learning community. Under
such circumstances, we conclude that the failure to allege that
neither district was part of a learning community did not defeat
the board’s jurisdiction.
The district court did not lack jurisdiction over these cases.
The taxpayers’ first assignment of error is without merit.
7 Id.
8 Id.
9 See Citizens Opposing Indus. Livestock v. Jefferson Cty., 269 Neb. 725,
695 N.W.2d 435 (2005).
10 See § 79-458(2).
1016 	276 NebRASkA RePORTS

Did District Court Err by Allowing Intervention?
In their second assignment of error, the taxpayers contend
that the district court erred by granting the freeholders the right
to intervene.
A review of the record reveals that following the decision
of the board, the taxpayers filed their appeal with the district
court under § 79-458(5). however, the taxpayers failed to cap-
tion the freeholders as parties, nor was notice of the appeal
served on the freeholders. The board then filed a motion alleg-
ing the freeholders were indispensable parties under what is
now codified as Neb. Ct. R. Pldg. § 6-112(b)(7). The district
court sustained the board’s motion and directed the taxpayers
to serve notice on the freeholders. The court’s order gave the
freeholders 30 days in which to file a petition in intervention
if they so chose.
The taxpayers first contend that the petitions in intervention
should not have been granted and that the freeholders were not
indispensable parties. Intervention is authorized by Neb. Rev.
Stat. § 25-328 (Reissue 2008), which provides:
Any person who has or claims an interest in the mat-
ter in litigation, in the success of either of the parties to
an action, or against both, in any action pending or to be
brought in any of the courts of the State of Nebraska, may
become a party to an action between any other persons
or corporations, either by joining the plaintiff in claiming
what is sought by the complaint, or by uniting with the
defendants in resisting the claim of the plaintiff, or by
demanding anything adversely to both the plaintiff and
defendant, either before or after issue has been joined in
the action, and before the trial commences.
[5] The interest required as a prerequisite to intervention
under § 25-328 is a direct and legal interest in the controversy,
which is an interest of such character that the intervenor will
lose or gain by the direct operation and legal effect of the judg-
ment which may be rendered in the action.11
In this case, the subject matter of the appeal before the
district court is whether the board should have transferred the
11 Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007).
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1017
Cite as 276 Neb. 1009

freeholders’ property from the Wynot school district to the
hartington school district. And the freeholders were the parties
to initially request the transfer of such property. It is difficult
to comprehend how the freeholders would not have a direct
and legal interest in the culmination of a process they began, a
process that determines the school district in which their prop-
erties are located.
[6] Moreover, it seems clear that the freeholders are indis-
pensable parties. An indispensable or necessary party to a suit
is one whose interest in the subject matter of the controversy is
such that the controversy cannot be finally adjudicated without
affecting the indispensable party’s interest, or which is such
that not to address the interest of the indispensable party would
leave the controversy in such a condition that its final determi-
nation may be wholly inconsistent with equity and good con-
science.12 The freeholders also meet this definition for the same
general reasons noted with respect to intervention. The tax-
payers’ action in the district court requires the court to deter-
mine whether the freeholders’ property should be transferred
from one school district to another. This controversy cannot be
adjudicated without affecting the freeholders’ interests.
The taxpayers’ argument that the freeholders should not
be permitted to intervene because “[w]hether the petitioners
seeking land transfers are present before the Court or not,
the Court must decide the validity of the board’s actions”13 is
not persuasive. As will be discussed in more detail below, the
appeal before the district court is a trial de novo, which means
a new hearing with new evidence. Thus, in this instance, the
district court is not limited to deciding whether the board’s
actions were valid, but instead will decide anew whether the
transfer is valid. This should be done with input and argu-
ment from all affected parties, including the taxpayers and
the freeholders.
The district court did not err by allowing the freeholders to
intervene. The taxpayers’ second assignment of error is with-
out merit.
12 In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).
13 brief for appellants at 18.
1018 	276 NebRASkA RePORTS

Did District Court Err in Transferring Property?
In their third assignment of error, the taxpayers argue that
the freeholders should not have been permitted to file amended
petitions before the district court; in their fourth assignment of
error, the taxpayers more generally argue that the district court
erred in transferring the property in question to the hartington
school district because of the various deficiencies in the peti-
tions filed before the board.
The disposition of both these assignments of error is depen-
dent upon an understanding of how the appeal provided by
§ 79-458(5) works. That subsection provides that appeals are
taken “in the same manner as appeals are now taken from the
action of the county board in the allowance or disallowance of
claims against the county.”
Neb. Rev. Stat. § 23-135 (Reissue 2007) provides for appeals
from actions of a county board allowing or disallowing claims
against the county. Case law under that section, as well as
under § 79-458, provides that appeals are taken as a trial de
novo before the district court.14
[7,8] In In re Covault Freeholder Petition,15 we explained the
trial de novo:
When an appeal is conducted as a “trial de novo,” as
opposed to a “trial de novo on the record,” it means liter-
ally a new hearing and not merely new findings of fact
based upon a previous record. A trial de novo is con-
ducted as though the earlier trial had not been held in the
first place, and evidence is taken anew as such evidence is
available at the time of the trial on appeal.
Miller v. School Dist. No. 6916 and In re Covault Freeholder
Petition both provide examples of the operation of a trial de
novo. In Miller, certain property owners wished to transfer
property from a school district in Pawnee County, Nebraska,
14 See Zeller Sand & Gravel v. Butler Co., 222 Neb. 847, 388 N.W.2d 62
(1986) (appeals under § 23-135). See, also, In re Covault Freeholder
Petition, 218 Neb. 763, 359 N.W.2d 349 (1984).
15 In re Covault Freeholder Petition, supra note 14, 218 Neb. at 769, 359
N.W.2d at 354.
16 Miller v. School Dist. No. 69, 208 Neb. 290, 303 N.W.2d 483 (1981).
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1019
Cite as 276 Neb. 1009

an accredited school district, to a neighboring school district
in Gage County, Nebraska, a nonaccredited school district. At
that time, state law provided that property could not be trans-
ferred from an accredited district to a nonaccredited district. A
statutory board composed of city officials from the counties at
issue nevertheless approved the transfer, and that approval was
upheld by the district court. We affirmed, noting the record
showed that by the time of the district court’s action upholding
the transfer, the school district in Gage County had become
formally accredited.
We discussed Miller in In re Covault Freeholder Petition, an
opinion consolidating three appeals, in which one appeal pre-
sented similar facts. The freeholders wished to transfer prop-
erty from a school district in Table Rock, Nebraska, to a school
district in Pawnee City, Nebraska. The transfer was ordered by
the county board and upheld by the district court. At that time,
the statute provided that property could only be transferred
from a nonaccredited district to an accredited district; as of the
date of the transfer, the Table Rock school district—the district
from which transfer was sought—was not accredited, while the
Pawnee City school district was accredited. The district court
held that it
could not consider the fact that Table Rock had been
advised of its accreditation and would be accredited before
the new school year began, but must instead consider the
status of the district as it existed on the date on which the
freeholder board met. The district court also held that it
could not consider evidence as to the status of Table Rock
on the date of the trial, but was only to determine whether
Table Rock was accredited on the date the freeholder
board met.17
Citing Miller, this court disagreed:
[W]hen the trial court considered this matter . . . it should
have taken into account the fact that the district was now
accredited and that the [petitioners] did not meet the nec-
essary requirements of [the statute].
17 In re Covault Freeholder Petition, supra note 14, 218 Neb. at 769, 359
N.W.2d at 354.
1020 	276 NebRASkA RePORTS

. . . .
In the instant case all of the requirements necessary
to effect accreditation of the Table Rock school district
had been met prior to the time that the statutory board
ordered the transfer, and in fact the formal certification
was granted prior to the time the children began school
and prior to the time the district court acted on the appeal.
It was therefore error for the district court not to consider
those facts.18
Against this backdrop, we consider the taxpayers’ arguments
that the freeholders should not have been allowed to amend
their petitions and that the deficiencies of the original peti-
tions precluded the district court from approving the transfer
by the board.
Miller and In re Covault Freeholder Petition both make
it clear that the district court is to consider the facts as they
existed at the time of the trial before the district court in
concluding whether the transfer was appropriate. And, aside
from the various deficiencies discussed above, and contigu-
ity, to be discussed below, there is no allegation that the
transfers were not authorized under § 79-458. In fact, except
for contiguity, the parties stipulated to each requirement
under the statute.
We also conclude that because the district court was allowed
to accept new evidence and consider the question of transfer
anew, it did not err in allowing the filing of new or amended
petitions.
The district court did not err in allowing the filing of
new petitions or in transferring the property in question. The
taxpayers’ third and fourth assignments of error are with-
out merit.
Contiguity.
In its fifth and final assignment of error, the taxpayers con-
tend the district court erred in its interpretation of the term
“contiguous” and therefore erred in concluding the properties
in question were contiguous.
18 Id. at 769-70, 359 N.W.2d at 354-55.
kOCh v. CeDAR CTy. FReehOlDeR bD. 	1021
Cite as 276 Neb. 1009

Section 79-458(1) provides that “[f]or purposes of determin-
ing whether a tract of land is contiguous, all petitions currently
being considered by the board shall be considered together as
a whole.” Relying on this language, the district court, on its
own, transferred land that was not necessarily contiguous to
the hartington school district, but whose contiguity could be
established through other properties currently before the board
that were contiguous.
however, the taxpayers contend that this interpretation is
incorrect, and the proper interpretation is that “all petitions
being considered by the board must be considered ‘together
as a whole,’ and if any petition lacks contiguity, then all lack
it.”19 The taxpayers reason that “the statutory objective is to
allow land to transfer, but not in such huge quantities as to
destroy the original school district, and make education of its
students impossible.”20
[9] Absent anything to the contrary, an appellate court will
give statutory language its plain and ordinary meaning.21 And
a plain reading of this language, considered in light of the rest
of the statute, reveals that the district court’s interpretation
was correct.
Contrary to the taxpayers’ assertion, there is no evidence
that § 79-458 was intended to limit the amounts of land which
could be transferred from one school district to another. Rather,
the logical interpretation of the statute is the one utilized by the
district court: that all petitions could be considered together in
order to find that otherwise noncontiguous land is nevertheless
contiguous. lending further support to this conclusion is the
fact that the taxpayers’ interpretation could allow owners of
noncontiguous land to defeat the petitions of owners of con-
tiguous land by the simple act of also filing a petition before
the board.
If a limitation on the amount of land that could be trans-
ferred at one time had been intended by the legislature, we
19 brief for appellants at 30 (emphasis in original).
20 brief for appellants at 30-31.
21 In re Estate of Cooper, 275 Neb. 297, 746 N.W.2d 653 (2008).
1022 	276 NebRASkA RePORTS

conclude that such could have been accomplished much more
directly by other means, notably, omission of the very language
which we are now asked to interpret.
The 	district 	court’s 	interpretation 	of 	“contiguous” 	was
correct. The taxpayers’ final assignment of error is with-
out merit.
CONClUSION
The decisions of the district court are affirmed.
AFFirmed.
K ent l. JArdine , AppellAnt, v. WilliAm F.
mcvey, sr ., et Al ., Appellees.
759 N.W.2d 690
Filed January 9, 2009. 	No. S-07-1068.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts 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.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom the
judgment was granted, and the court gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Corporations. An officer or director of a corporation occupies a fiduciary rela-
tion toward the corporation and its stockholders.
4. ____. An officer or director must comply with the applicable fiduciary duties in
his or her dealings with the corporation and its shareholders.
5. Estoppel. Judicial estoppel may bar inconsistent claims against different parties.
6. ____. Whether judicial estoppel is applicable turns on whether the court has
accepted inconsistent positions from the plaintiff.
7. ____. For judicial estoppel to apply, the court must have accepted a previous
inconsistent position.
Appeal from the District Court for Douglas County: thomAs
A. otepKA, Judge. Affirmed.
edward 	D. 	hotz, 	Patrick 	M. 	Flood, 	and 	Michael 	R.
Peterson, of hotz, Weaver, Flood, breitkreutz & Grant, for
appellant.
JARDINe v. McVey 	1023
Cite as 276 Neb. 1023