The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-3765

_____________

R-D Investment Co., a Nebraska *

Corporation; Lionsgate Partners, Ltd., *

a Nebraska Limited Partnership, *

*

Appellants, * Appeal from the United States

* District Court for the

v. * District of Nebraska

*

Lancaster County; Lancaster County *

Board of Equalization, *

*

Appellees. *

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Submitted: May 23, 1997

Filed: July 28, 1997

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Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

_____________

BOWMAN, Circuit Judge.

Plaintiffs R-D Investment Co. and Lionsgate Partners, Ltd. appeal from an order

of the District Court granting summary judgment in favor of defendants Lancaster

1

County and Lancaster County Board of Equalization and dismissing plaintiffs' 
The 450 or so cases filed in the district court of Lancaster County were appeals 2

from the Lancaster County Board of Equalization's decision to deny all of the

approximately 9500 protests filed with the Board seeking to reduce the protesting

taxpayers' property valuation to zero to "equalize" such property with other property

in the county that was not taxed.

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complaint. Plaintiffs asserted a claim under the Equal Protection Clause based on

allegations that defendants refused to accord them property tax relief while allowing

such relief to other similarly situated taxpayers. On appeal, plaintiffs argue that the

District Court erred in granting summary judgment and that the case should be

remanded for trial. Having reviewed the matter de novo, applying the well-settled

summary judgment standards of Federal Rule of Civil Procedure 56, we affirm.

The undisputed facts are as follows. For the 1991 tax year more than 450 cases

were filed by various taxpayers in the district court of Lancaster County challenging the

county's assessment of taxes on their property. Several of these cases were filed by the

taxpayers who are the plaintiffs in the present action. 

2

Counsel for the taxpayers in 119 of the other cases and counsel for the

defendants recognized the existence of a substantial issue concerning the state district

court's jurisdiction; two of the 119 cases were designated for decision on the issue of

jurisdiction, with the understanding that the decision of the court would control all 119

cases. On cross-motions for summary judgment, the court decided that it had

jurisdiction to hear the taxpayers' appeals. Thereafter, counsel for the defendants and

counsel for the taxpayers in the 119 cases entered into stipulations of fact for each of

those cases; in addition, each of the taxpayers in the 119 cases entered into agreements

with the local taxing authorities establishing the terms of a mutually satisfactory

resolution of the taxpayers' claims. As part of the agreement, all parties to the 119

cases waived their right to appeal any decision of the district court of Lancaster

County.
In John Day Co. v. Douglas County Board of Equalization, the Nebraska

3

Supreme Court held that, under Nebraska law, a county board of equalization "did not

have jurisdiction to consider the valuations of centrally assessed property in arriving

at the value of appellant taxpayers' locally assessed personal property" located within

the county. 497 N.W.2d 65, 71 (Neb. 1993). Thus, the court held, neither the district

court nor the supreme court had jurisdiction to hear the appeals, and so dismissed them.

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The 119 cases then were tried in the district court of Lancaster County pursuant

to the joint stipulations of fact. In keeping with the agreement of the parties, the court

entered decrees ordering reductions of 12.54% in the valuation of the properties of the

taxpayers for the 1991 tax year in the 119 cases. Less than a week later, on March 8,

1994, the Nebraska Supreme Court dismissed the appeal in Gra-Gar Inc. v. Sarpy

County Board of Equalization, No. S-93-703. The court dismissed the appeal for lack

of jurisdiction, citing rule 7A(2) of the Nebraska Rules of Practice and Procedure in the

Supreme Court and Court of Appeals, and referred to its decision a year earlier in John

Day Co. v. Douglas County Board of Equalization, 497 N.W.2d 65 (Neb. 1993).3

Upon learning of the Gra-Gar dismissal, and believing the issues in the case to be

nearly identical to those in the pending appeals in Lancaster County, the county moved

to dismiss the previously entered decrees for lack of jurisdiction. The Lancaster

County district court denied this motion. Lancaster County did not appeal because it

had promised, as part of its agreement with each of the taxpayers in the 119 cases, that

it would not appeal any decision made by the district court.

At the time of the Gra-Gar dismissal, none of the remaining cases, including

those of plaintiffs in the present case, had been resolved, although there had been

earlier correspondence between plaintiffs' counsel and counsel for Lancaster County

regarding a proposed resolution on the same basis as in the 119 cases. Several weeks

after the Lancaster County district court denied the county's post-Gra-Gar motion to

dismiss, plaintiffs' counsel wrote to counsel for the county asking whether plaintiffs'

cases still could be resolved by settlement. In response, counsel for the county advised

plaintiffs' counsel that based on Gra-Gar the county board had instructed him to contest
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all cases. (It is undisputed that the county board indeed did so instruct its counsel). At

no time did plaintiffs ever submit to the county board stipulations of facts and

agreements similar to the ones presented to the board by the taxpayers in the 119 cases

in which decrees were entered.

Plaintiffs' pending state court cases eventually were terminated when the

Lancaster County district court granted defendants' motions for summary judgment.

The court held that it had no jurisdiction to hear the cases. All of the cases for the 1991

tax year are now terminated. Except for the taxpayers in the 119 cases, none of the

taxpayers obtained any relief.

The District Court held that the undisputed facts establish that plaintiffs were not

similarly situated compared to the other 119 taxpayers at the time defendants rejected

plaintiffs' settlement overtures. By then, the Gra-Gar appeal had been dismissed, and

upon learning of that ruling by the Nebraska Supreme Court defendants became aware

that the legal landscape had changed. The District Court reasoned that "the Equal

Protection Clause does not require the Defendants to 'settle' otherwise similar claims

in a similar manner when the underlying law changes such that the second series of

claimants are subject to a defense that the first series of claimants were not forced to

confront." R-D Investment Co. v. Lancaster County, No. 95-3350, memorandum and

order at 13 (D. Neb. Sept. 26, 1996). Accordingly, the court held that plaintiffs' rights

under the Equal Protection Clause had not been violated, and granted defendants'

motion for summary judgment.

Plaintiffs attack the District Court's holding and argue in a variety of ways that

summary judgment was improperly granted. Having considered all of plaintiffs'

arguments, we conclude that the decision of the District Court is correct, and the

judgment of the District Court is affirmed on the basis of that court's well-reasoned

memorandum opinion. See 8th Cir. R. 47B.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.