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CAIN v. LYMBER

Cite as 306 Neb. 820

Donald V. Cain, Jr., appellant, v. 

Lana Lymber, in her official 

capacity as Custer County 

assessor, appellee.

___ N.W.2d ___

Filed August 14, 2020. No. S-19-807.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence 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. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. Declaratory Judgments: Appeal and Error. In an appeal from a 

declaratory judgment, an appellate court, regarding questions of law, has 

an obligation to reach its conclusion independently of the conclusion 

reached by the trial court.

4. Declaratory Judgments. The function of a declaratory judgment is 

to determine justiciable controversies which either are not yet ripe for 

adjudication by conventional forms of remedy or, for other reasons, are 

not conveniently amenable to the usual remedies.

5. ____. An action for a declaratory judgment will not lie where another 

equally serviceable remedy is available.

6. Mandamus: Words and Phrases. Mandamus is a law action and is 

defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law 

upon an inferior tribunal, corporation, board, or person, where (1) the 

relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/16/2020 12:08 AM CDT
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and (3) there is no other plain and adequate remedy in the course of 

the law.

7. Mandamus. 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.

8. Courts: Judgments: Appeal and Error. A lower court has an unqualified duty to follow the mandate issued by an appellate court and must 

enter judgment in conformity with the opinion and judgment of the 

appellate court.

9. Judgments: Appeal and Error. No judgment or order different from, or 

in addition to, the appellate mandate can have any effect.

10. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Custer County: Karin L. 

Noakes, Judge. Affirmed.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellant.

Steven R. Bowers, Custer County Attorney, and Kayla C. 

Clark for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Donald V. Cain, Jr., filed an action in district court against 

the Custer County assessor (Assessor) and the Tax Equalization 

and Review Commission (TERC) in which he alleged that the 

Assessor and the TERC failed to adhere to our mandate in a 

prior appeal and that, as a result, the Assessor recorded the 

taxable value of his property incorrectly. He sought an order 

declaring the meaning of our prior opinion and directing the 

Assessor to record the taxable value he understood our prior 

opinion to require. The district court dismissed the TERC as 

a party and concluded that it did not have authority to enter a 

declaratory judgment. We affirm.
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CAIN v. LYMBER

Cite as 306 Neb. 820

BACKGROUND

This is the third time the subject of Cain’s 2012 property tax 

obligation has come before this court. We summarize how we 

have reached this point in the sections below.

Cain I.

Cain owns several parcels of land in Custer County, Nebraska. 

In 2012, after the Assessor increased the assessed value of 

Cain’s property, Cain challenged the valuation increase with 

the TERC pursuant to Neb. Rev. Stat. § 77-1507.01 (Reissue 

2018). The TERC affirmed the increased valuations, and Cain 

appealed to this court. See Cain v. Custer Cty. Bd. of Equal., 

291 Neb. 730, 868 N.W.2d 334 (2015) (Cain I).

On appeal, we found the TERC plainly erred by reviewing 

Cain’s protests under an incorrect standard. The TERC applied 

a standard applicable in appeals, but we explained it should 

have applied a different standard applicable to cases like Cain’s 

seeking initial review under § 77-1507.01. We reversed the 

decision of the TERC and remanded the cause with instructions 

for the TERC to reconsider the matter on the record using the 

correct standard. Cain I, supra.

Cain II.

After remand, the TERC reviewed the record and, without 

an additional hearing, considered Cain’s protests. The TERC 

issued a new order which reversed in part the Assessor’s 

determination with respect to some parcels of Cain’s land and 

affirmed the Assessor’s valuations as to others. Cain again 

appealed. See Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 

906 N.W.2d 285 (2018) (Cain II).

In Cain II, Cain contended, among other things, that the 

TERC erred in affirming the Assessor’s valuations. Before 

reaching that issue, we explained that under Neb. Rev. Stat. 

§ 77-201(1) (Reissue 2009), all real property, unless expressly 

exempt, is subject to taxation and is to be valued at its actual 

value. We also noted that while most real property is valued 
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for taxation purposes at 100 percent of its actual value, “the 

Legislature has determined that agricultural and horticultural 

land shall be valued at 75 percent of its value.” Cain II, 298 

Neb. at 843, 906 N.W.2d at 294. We stated that “the ultimate 

issue of fact in this case is the actual value of Cain’s subject 

property in 2012.” Id. at 846, 906 N.W.2d at 295.

After summarizing the evidence and analyzing Cain’s argument, we found the TERC erred in affirming the Assessor’s 

valuations. We concluded that the TERC erred by failing to 

find that Cain carried his burden to prove that the Assessor’s 

value of his irrigated grassland property was grossly excessive 

and the result of arbitrary or unreasonable action. In concluding our opinion, we stated:

We conclude that Cain has shown by a preponderance of the evidence that the valuation of the property at 

issue for the tax year 2012 is $870 per acre, for a total 

of $951,719.10. We remand the matter to the TERC with 

directions that it direct the Assessor to set the valuation of 

the property at such amount for the tax year 2012, upon 

which amount taxes for such year shall be determined 

and paid.

Cain II, 298 Neb. at 854, 906 N.W.2d at 300.

Present Appeal.

This brings us to the lawsuit at issue in this appeal. On 

September 21, 2018, Cain filed a lawsuit in the district court 

for Custer County against the Assessor and the TERC. In the 

lawsuit, he alleged that a dispute had arisen about the meaning 

of our opinion in Cain II. He sought a declaratory judgment to 

determine and resolve that dispute.

In his complaint, Cain referred to our decisions in Cain I

and Cain II. With respect to Cain II, he alleged that our opinion decided that the actual value of his property for 2012 was 

$951,719.10. He alleged that our opinion did not determine the 

taxable or assessed value of Cain’s property for 2012.
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Cain went on to allege that “TERC did not adhere to the 

mandate of the Supreme Court.” Instead, according to Cain, it 

issued an order to the Assessor directing that the taxable value 

of Cain’s properties for 2012 was $951,719.10. This, Cain 

asserted, was incorrect. According to Cain, the TERC should 

have directed that the actual value was $951,719.10, to which 

the Assessor would apply the statutory discount for agricultural 

land to determine a taxable value of $713,789.33. Cain alleged 

that the Assessor recorded $951,719.10 as the taxable value.

In his requests for relief, Cain sought an order declaring 

that Cain II determined the actual value of his property to be 

$951,719.10 and an order directing the Assessor to use this 

number as the actual value, to apply the statutory discount, and 

to record an assessed value of $713,789.33.

Early in the case, the TERC filed a motion to dismiss and 

the district court granted the motion and dismissed the TERC 

as a defendant. Cain and the Assessor later filed cross-motions 

for summary judgment.

At the summary judgment hearing, the parties offered and 

the court received evidence. Among the evidence received was 

a certified copy of a TERC order dated February 27, 2018, and 

entitled “Decision and Order on Remand from the Nebraska 

Supreme Court.” It is a two-page document, the body of which 

provides in full:

The Nebraska Tax Equalization and Review Commission 

(“the Commission”) finds and determines as follows:

FINDINGS OF FACT

1. The Nebraska Supreme Court issued its Opinion in 

the case captioned Cain, Jr. v. Custer Cty. Bd. of Equal, 

S-17-370 on February 2, 2018 (The Opinion).

2. The Court thereafter issued its Mandate on February 

20, 2018. The Mandate specifically directs that the 

Commission shall “proceed to enter judgment in conformity with the judgment and opinion of this court.” See 

Attached.
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3. The judgment and opinion referred to in the Mandate 

concludes: “. . . the valuation of the property at issue 

for the tax year 2012 is $870 per acre for a total of 

$951,719.10. We remand the matter to the TERC with 

directions that it direct the Assessor to set the valuation of 

the property at such amount for the tax year 2012, upon 

which amount taxes for such year shall be determined and 

paid.” Opinion at p. 14.

4. The Commission, based on the Mandate and Opinion, 

therefore orders the Custer County Assessor to set the 

valuation of the property at issue at $870 per acre for a 

total of $951,719.10 for tax year 2012.

ORDER

IT IS THEREFORE ORDERED, ADJUDGED, 

AND DECREED:

1. The Decision[] of the Custer County Board of 

Equalization determining the value of the Subject 

Properties for tax year 2012 is reversed.

2. That the taxable value of the Subject Properties for 

tax year 2012 is $870 per acre for a total of $951,719.10[.]

(Emphasis in original.)

No indication appears on the face of the TERC’s February 

27, 2018, order as to whether it was provided to Cain or his 

counsel. Cain alleged in his complaint and argues on appeal 

that the TERC did not provide the order to him or his counsel.

The Assessor also offered and the district court received 

another order of the TERC. It is dated September 5, 2018. The 

order describes a motion filed by Cain on August 29 requesting that the TERC issue an order nunc pro tunc, correcting its 

February 27 order because it was inconsistent with our opinion 

in Cain II. In the September 5 order, the TERC denied the 

motion, stating that no correction was necessary.

On July 25, 2019, the district court entered an order on 

the parties’ summary judgment motions. The district court 

initially stated that it appeared to it that Cain was correct that 

our opinion in Cain II determined the actual value of Cain’s 
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property. The district court went on to say, however, that 

before granting the relief sought, it was obligated to determine 

if it had authority to enter a declaratory judgment. The district 

court concluded it did not. It reasoned that Cain was making a 

collateral attack on the TERC’s February 27, 2018, order and 

that a complaint for declaratory relief cannot be used as a substitute for a timely appeal. It concluded Cain’s “proper remedy 

was to appeal the TERC Order on the mandate.”

Cain timely appealed.

ASSIGNMENTS OF ERROR

Cain assigns three errors on appeal. He contends that the 

district court erred (1) when it concluded that Cain’s action for 

declaratory judgment is a collateral attack on the TERC order 

and that such collateral attack cannot be substituted for a direct 

appeal, (2) when it concluded Cain’s remedy was to appeal the 

TERC order directed to the Assessor, and (3) when it dismissed 

the TERC as a defendant.

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

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. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 

597 (2019).

[2] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id.

[3] In an appeal from a declaratory judgment, an appellate 

court, regarding questions of law, has an obligation to reach its 

conclusion independently of the conclusion reached by the trial 

court. Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 

N.W.2d 36 (2018).
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Cite as 306 Neb. 820

ANALYSIS

Threshold Issue: Is Declaratory 

Judgment Action Proper?

Much of Cain’s argument in this appeal is focused on his 

contention that our opinion in Cain II determined the actual 

value of his property for 2012 but the Assessor has incorrectly 

recorded that number as the taxable value. He contends that the 

district court could and should have remedied this problem by 

issuing an order declaring the correct meaning of Cain II. The 

district court, however, determined that before it could grant 

the relief Cain requested, it was required to determine whether 

it was proper to enter a declaratory judgment in this case. The 

district court was correct to begin with that question, and our 

analysis must begin there as well.

Cain argues that the district court erred by finding that he 

was making an impermissible collateral attack on the TERC’s 

February 27, 2018, order and by finding that his “proper remedy” was to appeal that order. He argues that an appeal of the 

February 27 order would have been premature. According to 

Cain, up until the time that the Assessor made it clear that 

taxes would be levied based on a taxable value of $951,719.10, 

he was not aggrieved because, he claims, it was not clear until 

then that the Assessor would follow the TERC’s February 27 

order rather than Cain’s understanding of our opinion in Cain 

II. Cain also argues that he could not have appealed because 

the TERC did not provide him or his counsel with a copy of 

the February 27 order.

We find that is not necessary for us to decide whether Cain 

was making an impermissible collateral attack on the TERC’s 

February 27, 2018, order or whether he was precluded from 

seeking declaratory relief because he failed to take advantage 

of an available appeal. We reach this conclusion because even 

if we assume that Cain is correct that he was not making an 

impermissible collateral attack on the TERC order and that 

he could not have timely appealed it, we still find that the 
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district court correctly declined to enter a declaratory judgment. We explain our reasoning below.

Another Serviceable Remedy: 

Application for Writ 

of Mandamus.

This declaratory judgment action was initiated pursuant to 

Neb. Rev. Stat. § 25-21,150 (Reissue 2016), a provision within 

the Uniform Declaratory Judgments Act, which provides:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose 

rights status or other legal relations are affected by a 

statute, municipal ordinance, contract or franchise, may 

have determined any question of construction or validity 

arising under the instrument, statute, ordinance, contract, 

or franchise and obtain a declaration of rights, status or 

other legal relations thereunder.

[4,5] Although declaratory judgment actions are permitted by 

statute, our cases have held that there are some circumstances 

in which a declaratory judgment is not available. We have said 

that the function of a declaratory judgment is to determine 

justiciable controversies which either are not yet ripe for adjudication by conventional forms of remedy or, for other reasons, 

are not conveniently amenable to the usual remedies. Ryder 

Truck Rental v. Rollins, 246 Neb. 250, 518 N.W.2d 124 (1994). 

Thus, we have noted that an action for declaratory judgment 

will not lie where another equally serviceable remedy is available. Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997). 

See, also, Sandoval v. Ricketts, 302 Neb. 138, 922 N.W.2d 222 

(2019) (affirming dismissal of declaratory judgment action 

on ground that equally serviceable remedies were available 

for plaintiffs). We have also said that a court should enter a 

declaratory judgment only where such judgment would terminate or resolve the controversy between the parties. Hoiengs v. 

County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994). See, 

also, Neb. Rev. Stat. § 25-21,154 (Reissue 2016).
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Even assuming that Cain’s declaratory judgment action 

was not an impermissible collateral attack and that he could 

not have appealed the TERC’s February 27, 2018, order, we 

believe these principles would still preclude declaratory relief. 

As we will explain, Cain had another serviceable remedy: an 

application for a writ of mandamus.

[6] Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon 

an inferior tribunal, corporation, board, or person, where (1) 

the relator has a clear right to the relief sought, (2) there is a 

corresponding clear duty existing on the part of the respondent 

to perform the act, and (3) there is no other plain and adequate 

remedy in the course of the law. See Huff v. Brown, 305 Neb. 

648, 941 N.W.2d 515 (2020). While an extraordinary remedy, 

we believe that in this situation, a writ of mandamus issued to 

the TERC was not just equally serviceable, but a superior remedy to Cain’s action for declaratory judgment.

[7-9] Cain alleges in his declaratory judgment complaint 

that the TERC did not adhere to our mandate in Cain II. 

Assuming Cain’s reading of Cain II is correct, the TERC had a 

ministerial duty to comply with that reading. 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. State ex rel. Parks v. Council of City of Omaha, 

277 Neb. 919, 766 N.W.2d 134 (2009). Compliance with an 

appellate mandate meets this test. Our cases hold that an inferior tribunal lacks any authority to take actions contrary to 

an appellate mandate. We have said that a lower court has an 

unqualified duty to follow the mandate issued by an appellate 

court and must enter judgment in conformity with the opinion 

and judgment of the appellate court. See State v. Payne, 298 

Neb. 373, 904 N.W.2d 275 (2017). We have also said that 

no judgment or order different from, or in addition to, the 

appellate mandate can have any effect. Id. For essentially the 

same reasons, if Cain is right about our opinion in Cain II, he 
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would have a clear right to have the February 27, 2018, order 

of the TERC modified, and the TERC would have a clear duty 

to modify it.

This leaves only the question of whether there is some other 

plain and adequate remedy in the course of the law. For the 

purposes of this analysis, we are already assuming that Cain 

could not have appealed the February 27, 2018, order, so we 

need not consider whether that is a plain and adequate remedy 

that would preclude mandamus relief.

A question remains, however, as to whether the declaratory 

judgment action Cain filed is a plain and adequate remedy 

that would bar mandamus relief or if mandamus is an equally 

serviceable remedy that bars the declaratory judgment action. 

On this question, we acknowledge that some Nebraska cases 

have held in other contexts that parties could not seek mandamus relief because declaratory relief was available. See, e.g., 

State ex rel. PROUD v. Conley, 236 Neb. 122, 459 N.W.2d 222 

(1990); Larson v. City of Omaha, 226 Neb. 751, 415 N.W.2d 

115 (1987). But it has also been held in other circumstances 

that a writ of mandamus was available because declaratory 

relief was inferior to mandamus relief. See, e.g., Dozler v. 

Conrad, 3 Neb. App. 735, 532 N.W.2d 42 (1995).

For multiple reasons, we believe mandamus is also a superior remedy to declaratory judgment in this situation. First, 

we are mindful of mandamus writs’ long history in this state 

as the remedy traditionally used to correct an inferior tribunal’s misconstruing of an appellate mandate in the absence 

of any other remedy. See, e.g., State v. Dickinson, 63 Neb. 

869, 89 N.W. 431 (1902); State v. Norris, 61 Neb. 461, 85 

N.W. 435 (1901); State v. Omaha Nat. Bank, 60 Neb. 232, 

82 N.W. 850 (1900). We are aware of nothing in the Uniform 

Declaratory Judgments Act suggesting actions for declaratory 

judgments supplanted mandamus as the traditional remedy in 

this situation.

Indeed, we note that courts in several other states have 

concluded that statutes authorizing courts to enter declaratory 
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judgments did not supplant the traditional function of the writ 

of mandamus. For example, in State ex rel. Edmisten v. Tucker, 

312 N.C. 326, 323 S.E.2d 294 (1984), the North Carolina 

Supreme Court affirmed the dismissal of an action that essentially sought to obtain review of lower court decisions regarding the constitutionality of a statute through a declaratory 

judgment action. It explained that North Carolina’s declaratory 

judgment statute “may not be used to obtain review of lower 

court rulings” and that the “remedies for those rare instances 

of judicial abuse and derogation of duty, or for actions taken 

which are outside the authority of the judge, or for failure to 

perform a ministerial duty of the office remain the extraordinary writs of mandamus or prohibition.” Id. at 356, 323 S.E.2d 

at 313. See, also, State ex rel. King v. Lyons, 149 N.M. 330, 

338, 248 P.3d 878, 886 (2011) (reading prior case to hold that 

“declaratory judgment actions are not intended to substitute for 

remedies such as mandamus”); Mitchell v. Hammond, 252 Ala. 

81, 39 So. 2d 582 (1949) (concluding declaratory judgment 

could not be used as substitute for mandamus); Molnar v. Ohio 

Liquor Control Comm., 79 Ohio App. 3d 318, 320, 607 N.E.2d 

112, 114 (1992) (“[a]n action for declaratory judgment is not a 

substitute for an action in mandamus”).

Further, we believe a writ of mandamus to the TERC would 

be more effective at resolving the parties’ dispute than the 

declaratory judgment Cain sought. As we have noted, Cain 

requested an order from the district court declaring that in 

Cain II, we determined that $951,719.10 was the actual value 

of his property for the 2012 tax year and an order directing 

the Assessor to use that amount as the actual value in calculating the taxable value. Even if the district court granted 

the relief Cain sought, the Assessor might be uncertain about 

what should be done next. The Assessor would have a district 

court order declaring that our opinion in Cain II requires that 

$951,719.10 be recorded as the actual value, but the Assessor 

would also still have an order from the TERC ordering that 

$951,719.10 be recorded as the taxable value. Moreover, 
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Neb. Rev. Stat. § 77-1311(3) (Reissue 2018), a provision 

within a statute setting forth the duties of county assessors, 

states that county assessors shall “[o]bey all . . . orders sent 

out by the [TERC].”

Even a successful declaratory judgment action would thus 

run the risk of leading to uncertainty rather than resolving 

it. See Hoiengs v. County of Adams, 245 Neb. 877, 899, 516 

N.W.2d 223, 239 (1994) (“a court should enter a declaratory judgment only where such judgment would terminate 

or resolve the controversy between the parties”); Dozler v. 

Conrad, 3 Neb. App. 735, 743, 532 N.W.2d 42, 49 (1995) 

(concluding mandamus was superior remedy to declaratory 

judgment because declaratory judgment “would only be the 

first step” to obtaining the relief sought).

If, on the other hand, Cain obtained a writ of mandamus 

directing the TERC to modify its order to conform to his 

understanding of our opinion in Cain II, all would be clear. The 

TERC would be obligated to modify its order, and the Assessor 

would be obligated to follow the TERC’s modified order.

For these reasons, we conclude that, even assuming Cain is 

correct that his declaratory judgment action was not an impermissible collateral attack on the February 27, 2018, TERC 

order and that he could not have appealed the TERC’s order, 

another serviceable remedy was available to him. The district 

court thus did not err in dismissing his declaratory judgment action.

Dismissal of the TERC as Party.

[10] Cain also assigned as error that the district court erred 

by dismissing the TERC from the declaratory judgment action. 

He makes clear, however, that this error was only assigned as 

a precautionary measure and argues only that the dismissal of 

the TERC should be reversed if we determine the presence of 

the TERC was necessary to grant Cain the relief requested. 

Because our disposition of this appeal does not depend on the 

district court’s dismissal of the TERC, it is not necessary for us 
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to decide whether that decision was correct. An appellate court 

is not obligated to engage in an analysis that is not necessary to 

adjudicate the case and controversy before it. Seldin v. Estate 

of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).

CONCLUSION

We conclude the district court did not err in dismissing the 

declaratory judgment action and thus affirm.

Affirmed.