Lindner v. Kindig

386 	285 NEBRASKA REPORTS
upon respondent’s being on probation for a period of 2 years,
including monitoring, following reinstatement, subject to the
terms agreed to by respondent in the conditional admission
and outlined above. Respondent shall comply with Neb. Ct. R.
§ 3-316, and upon failure to do so, he shall be subject to pun-
ishment for contempt of this court. Respondent is also directed
to pay costs and expenses in accordance with Neb. Rev. Stat.
§§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P)
and 3-323(B) within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
Judgment of suspension.
K laus p. lindner, appellant, v. douglas K indig,
mayor of the C ity of la vista, et al., appellees.
826 N.W.2d 868
Filed March 1, 2013. 	No. S-12-294.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews
a district court’s order granting a motion to dismiss de novo. When reviewing a
dismissal order, the appellate court accepts as true all the facts which are well
pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the pleader’s conclusions.
2. Limitations of Actions. Which statute of limitations applies is a question of law.
3. Judgments: Appeal and Error. An appellate court reaches a conclusion regard-
ing questions of law independently of the trial court’s conclusion.
4. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
5. Constitutional Law: Appeal and Error. Generally, a constitutional issue not
passed upon by the trial court is not appropriate for consideration on appeal.
6. Constitutional Law: Limitations of Actions. A constitutional claim can become
time barred just as any other claim can.
7. Constitutional Law: Statutes: Proof. A plaintiff can succeed in a facial chal-
lenge only by establishing that no set of circumstances exists under which the act
would be valid, i.e., that the law is unconstitutional in all of its applications.
8. Limitations of Actions. The period of limitations begins to run upon the viola-
tion of a legal right, that is, when an aggrieved party has the right to institute and
maintain suit.
9. ____. The time at which a cause of action accrues will differ depending on the
facts of the case.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

LINDNER v. KINDIG 	387
Cite as 285 Neb. 386
10. Motions to Dismiss: Pleadings. 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 for relief that is plausible on its face.
11. Limitations of Actions: Pleadings: Proof. Where a complaint does not dis-
close on its face that it is barred by the statute of limitations, a defendant must
plead the statute as an affirmative defense, and, in that event, the defendant
has the burden to prove that defense. If, however, the complaint on its face
shows that the cause of action is time barred, the plaintiff must allege facts to
avoid the bar of the statute of limitations and, at trial, has the burden to prove
those facts.
Appeal from the District Court for Sarpy County: William
B. 	Z astera, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
K.C. Engdahl for appellant.
Gerald 	L. 	Friedrichsen 	and 	William 	M. 	Bradshaw, 	of
Fitzgerald, Schorr, Barmettler & Brennan, P.C., L.L.O., for
appellees.
heaviCan, C.J., Wright, C onnolly, stephan, mCC ormaCK,
miller-lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
This appeal involves a declaratory judgment action challeng-
ing the constitutionality of a municipal ordinance creating an
offstreet parking district adjoining a Cabela’s store. The district
court found that the action was barred by the general 4-year
statute of limitations, because it was commenced more than 4
years after the ordinance was adopted. The primary question
presented is when the statute began to run. Because we cannot
tell from the face of the complaint when the taxpayer suffered
harm and, thus, had the right to institute and maintain suit, we
reverse, and remand for further proceedings.
BACKGROUND
On January 17, 2006, the City of La Vista, Nebraska
(City), passed and approved ordinance No. 979. The ordi-
nance provided for “the creation of vehicle offstreet parking

388 	285 NEBRASKA REPORTS
District No. 1 of the City” as authorized under Neb. Rev. Stat.
§ 19-3301 et seq. (Reissue 2012). According to the ordinance,
the costs of the offstreet parking facilities—estimated by the
city engineer to be $9 million—would be paid for from gen-
eral taxes, special property taxes or assessments on property
within the offstreet parking district, and/or general property
taxes, with financing by issuance of the City’s general obliga-
tion bonds.
On December 16, 2011, Klaus P. Lindner, a resident of
the City, filed a complaint against the City and its mayor and
city council members (collectively appellees). Lindner sought
declaratory judgment and a declaration of the unconstitutional-
ity of the ordinance.
Lindner alleged that the ordinance violated the Nebraska
Constitution in two ways: first, by paying for the costs through
a general property tax levy in violation of article VIII, § 6, and
second, by granting a Cabela’s store a special benefit in viola-
tion of article III, § 18. According to Lindner, appellees previ-
ously held a commercial enterprise responsible for payment
of costs associated with installation of parking facilities that
benefited the enterprise. But he alleged that under the ordi-
nance, appellees had agreed to pay for and bear the entire cost
of the parking facilities directly benefiting the Cabela’s store.
Lindner believed that the cost was paid with sales tax rev-
enues drawn from municipal general funds. He also believed
that no other business or individual doing business in the
City had been provided with a similar special benefit. Lindner
alleged that as a resident of the City, he was “aggrieved as a
consequence of municipal revenues having been applied in an
unconstitutional manner for the peculiar benefit of a private
enterprise and in a manner which contravenes the constitu-
tional prohibition on granting or establishment of special privi-
leges and immunities.”
Lindner therefore asked the district court to order and
declare that “any and all agreements or practices as above
detailed are null, void and unconstitutional” and to issue an
order restraining and enjoining ongoing enforcement of or
adherence to the ordinance. He also requested that appellees be

LINDNER v. KINDIG 	389
Cite as 285 Neb. 386
ordered to impose and levy any necessary special assessments
upon the property which was specially benefited by the park-
ing facilities.
Appellees filed a motion to dismiss the complaint under
Neb. Ct. R. Pldg. § 6-1112(b)(6). They alleged that the claim
was barred by the “applicable time periods” for challenging
the ordinance.
The district court granted appellees’ motion to dismiss
and dismissed the complaint with prejudice. The court rea-
soned that the complaint was subject to the 4-year catchall
statute of limitations set forth in Neb. Rev. Stat. § 25-212
(Cum. Supp. 2012). The court determined that the limita-
tions period began to run on the date that the ordinance was
passed and approved—January 17, 2006—giving Lindner until
January 17, 2010, to bring the current action. Because Lindner
did not file the complaint until December 16, 2011, the
court concluded that the complaint was barred by the statute
of limitations.
Lindner timely appealed, and we moved the case to our
docket pursuant to statutory authority.1
ASSIGNMENTS OF ERROR
Lindner alleges that the district court erred in (1) conclud-
ing that his complaint failed to state a claim upon which relief
could be granted, (2) dismissing his complaint with prejudice,
and (3) determining that the complaint was barred by a 4-year
statute of limitations. Lindner also asserts that it was error as a
matter of law to determine that a 4-year statute of limitations
can operate to bar claims of unconstitutionality directed to a
municipal ordinance.
STANDARD OF REVIEW
[1] An appellate court reviews a district court’s order grant-
ing a motion to dismiss de novo. When reviewing a dismissal
order, the appellate court accepts as true all the facts which
are well pled and the proper and reasonable inferences of law
1 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).

390 	285 NEBRASKA REPORTS
and fact which may be drawn therefrom, but not the plead-
er’s conclusions.2
[2,3] Which statute of limitations applies is a question of
law.3 An appellate court reaches a conclusion regarding ques-
tions of law independently of the trial court’s conclusion.4
ANALYSIS
[4,5] The question of the ordinance’s constitutionality is
not properly before us for two reasons. First, Lindner’s brief
did not assign error in this regard. Although Lindner filed a
notice of a constitutional question,5 which asserted that “a
question of state unconstitutionality of the complained of city
ordinances will necessarily be presented,” his brief did not spe-
cifically assign that an ordinance was unconstitutional. To be
considered by this court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error.6 Second, the district court did not reach
the issue. Generally, a constitutional issue not passed upon by
the trial court is not appropriate for consideration on appeal.7
Here, the district court did not reach any constitutional issue,
because it dismissed the complaint under § 6-1112(b)(6) for
being filed outside the statute of limitations. Because Lindner
failed to specifically assign that the challenged ordinance was
unconstitutional and because the district court did not con-
sider the issue, we decline to address the constitutionality of
the ordinance.
Nonetheless, the constitutionality of the ordinance is at the
center of Lindner’s claim. We assume without deciding that
the two constitutional provisions identified in Lindner’s com-
plaint—article VIII, § 6, and article III, § 18—apply to the
2 Central Neb. Pub. Power v. Jeffrey Lake Dev., 282 Neb. 762, 810 N.W.2d
144 (2011).
3 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
4 Id.
5 See Neb. Ct. R. App. P. § 2-109(E) (rev. 2012).
6 In re Estate of Cushing, 283 Neb. 571, 810 N.W.2d 741 (2012).
7 See State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).

LINDNER v. KINDIG 	391
Cite as 285 Neb. 386
ordinance. However, in so doing, we express no opinion on the
constitutionality of the ordinance or on its continued viability.
Thus, we turn to the issue that is properly before us—whether
Lindner’s claim that the ordinance is unconstitutional is barred
by a statute of limitations.
Lindner argues that a claim of unconstitutionality is not the
type of claim which is subject to the bar of a statute of limita-
tions. He argues that because a constitutionally infirm enact-
ment is wholly void ab initio, “[e]ach day of unconstitutional
subsistence is tantamount to a new and continuing wrong
which may be challenged at any time . . . .”8
[6] But the U.S. Supreme Court has stated that a “constitu-
tional claim can become time-barred just as any other claim
can.”9 Statutes of limitations rest on a common understanding
that wrongs for which the law grants a remedy are subject to
a requirement that, in fairness, the party wronged must pursue
the remedy in a timely fashion.10 This understanding, in turn,
addresses three concerns: first, for stale claims, where memo-
ries fade and witnesses and records may be missing; second,
for repose—that after some period of time, claims should not
continue unresolved; and third, that a plaintiff cannot sleep on
his or her rights and then suddenly demand a remedy, without
creating a greater wrong against the party charged and a wrong
against the peace of the community.11
[7] At oral argument, Lindner clarified that his challenge to
the constitutionality of the ordinance was a facial challenge. A
plaintiff can succeed in a facial challenge only by establishing
that no set of circumstances exists under which the act would
be valid, i.e., that the law is unconstitutional in all of its appli-
cations.12 But the distinction between a facial as opposed to
an “as-applied” challenge is not of great import for statute of
8 Brief for appellant at 8.
9 Block v. North Dakota, 461 U.S. 273, 292, 103 S. Ct. 1811, 75 L. Ed. 2d
840 (1983).
10 See Hair v. U.S., 350 F.3d 1253 (Fed. Cir. 2003).
11 See id.
12 See State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012).

392 	285 NEBRASKA REPORTS
limitations purposes. “[A] case alleging facial unconstitutional-
ity is ripe not simply when the law is passed but, just like an
as-applied challenge, when the government acts pursuant to
that law and adversely affects the plaintiff’s rights.”13 “There is
simply no categorical rule that a law becomes insulated from
facial challenge by the mere passage of time.”14
[8,9] The period of limitations begins to run upon the viola-
tion of a legal right, that is, when an aggrieved party has the
right to institute and maintain suit.15 “The time at which a
cause of action accrues will differ depending on the facts of
the case, but it will come whenever the plaintiff’s rights are
finally and clearly affected pursuant to the law that [he or] she
believes is unconstitutional.”16
Lindner’s claim of harm ultimately depends upon the fund-
ing mechanism actually employed by appellees. According
to the ordinance, the costs of the offstreet parking facilities
would be paid for from general taxes, special property taxes
or assessments on property within the offstreet parking dis-
trict, and/or general property taxes, with financing by issuance
of the City’s general obligation bonds. In other words, the
language of the ordinance was broad enough to allow for pay-
ment of the costs through a special assessment on Cabela’s.
And if that had occurred, Lindner’s allegations of unconsti-
tutionality would seem to disappear, because his complaint
appears to concede that a special assessment would have
been constitutional.
But instead, accepting as we must at this stage the truth
of Lindner’s allegations, appellees opted to pay for the costs
of the offstreet parking district through a general property
tax levy or sales tax revenues drawn from municipal general
funds. It was this decision or its implementation that adversely
affected Lindner’s rights and allegedly gave rise to his right to
institute suit.
13 Timothy Sandefur, The Timing of Facial Challenges, 43 Akron L. Rev. 51,
61 (2010). See Gillmor v. Summit County, 246 P.3d 102 (Utah 2010).
14 Sandefur, supra note 13 at 61. Accord Gillmor, supra note 13.
15 Behrens v. Blunk, 284 Neb. 454, 822 N.W.2d 344 (2012).
16 Sandefur, supra note 13 at 61.

LINDNER v. KINDIG 	393
Cite as 285 Neb. 386
[10] However, from the face of Lindner’s complaint, we
cannot tell when appellees made the decision choosing the spe-
cific funding mechanism to be used or implemented that deci-
sion. At this stage, we must accept all of the factual allegations
in the complaint as true and draw all reasonable inferences
in Lindner’s favor. 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 for relief that is plausible
on its face.17 It is certainly plausible that the decision to use
general funding sources or the implementation of that deci-
sion was made within 4 years immediately before the filing
of Lindner’s complaint. The existing allegations are sufficient
to raise a reasonable expectation that discovery will reveal the
date at issue.18
[11] At this point, we need not—and indeed, we can-
not—determine precisely when Lindner’s claim accrued. The
general rule is that where a complaint does not disclose on its
face that it is barred by the statute of limitations, a defendant
must plead the statute as an affirmative defense, and, in that
event, the defendant has the burden to prove that defense. If,
however, the complaint on its face shows that the cause of
action is time barred, the plaintiff must allege facts to avoid
the bar of the statute of limitations and, at trial, has the burden
to prove those facts.19 Because the complaint does not allege
when appellees decided to pay the costs from general sources
or when it implemented the decision, the complaint does not
disclose on its face that it is time barred. And in the absence
of such allegations, we cannot determine with specificity when
the claim accrued.
Although we agree with the district court that the 4-year
catchall limitations period set forth in § 25-212 potentially
applies, we disagree with the court’s conclusion that the limi-
tations period began to run when the ordinance was passed.
Because we cannot determine when Lindner’s cause of action
17 Knights of Columbus Council 3152 v. KFS BD, Inc., 280 Neb. 904, 791
N.W.2d 317 (2010).
18 See id.
19 See Eisenhart v. Lobb, 11 Neb. App. 124, 647 N.W.2d 96 (2002).

394 	285 NEBRASKA REPORTS
accrued in this case, we reverse the judgment and remand the
cause for further proceedings.
CONCLUSION
We do not reach the constitutionality of the ordinance in
this appeal. The harm to Lindner’s rights allegedly occurred
when appellees declined to pay for the offstreet parking facili-
ties through special assessments and instead paid for the costs
through a general property tax levy or sales tax revenues drawn
from municipal general funds. Because we cannot tell from
the face of Lindner’s complaint when that decision was made
or when it was implemented and, thus, when Lindner’s cause
of action accrued for purposes of the running of the statute of
limitations, we reverse the judgment of the district court and
remand the cause for further proceedings.
reversed and remanded for
further proCeedings.