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. *

_____________ Submitted: May 23, 1997 Filed: July 28, 1997

_____________ Before RICHARD S. ARNOLD, Chief Judge, BOWMAN an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ BOWMAN, Circuit Judge. Plaintiffs R-D Investment Co. and Lionsgate Partn ers, Ltd. appeal from an order of the Di strict Court granting summary judgment in favor of defendants Lancaste r 1 County and Lancaster County Board of Equalization and dismissing plaintiffs'The 450 or so cases filed in the district co urt of Lancaster County were appeals 2 fro m the Lancaster County Board of Equalization's decision to deny all of th e appro ximately 9500 protests filed with the Board seeking to reduce the protestin g taxpayers' property valuation to zero to "equalize" such property with other property in the county that was not taxed. -2- complai nt. Plaintiffs asserted a claim under the Equal Protection Clause based o n al legations that defendants refused to accord them property tax relief while allowin g such r elief to other similarly situated taxpayers. On appeal, plaintiffs argue that th e Di strict Court erred in granting summary judgment and that the case should b e remanded fo r trial. Having reviewed the matter de novo, applying the well-settle d summary judgment standards of Federal Rule of Civil Procedure 56, we affirm. The undisputed facts are as follows. Fo r the 1991 tax year more than 450 cases were filed by various taxpayers in the district court of Lancaster Co unty challenging the county's assessment of taxes on their property. Several of t hese 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 th e 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 t he decision of the court would control all 119
cases. On cross-motions for summary judgment, the court decided that it ha d jurisdiction to hea

r the taxpayers' appeals. Thereafter, counsel for the defendants and
coun sel 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 resolu tionof the taxpayers' claims. As part of the agreement, all parties to the 11 9
case s waived their right to appeal any decision of the district court of Lancaste r County.In John Day Co. v. Douglas County Board of Equalization , the Nebrask a 3 Supreme Court held that, under Neb raska law, a county board of equalization "did not ha ve jurisdiction to consider the valuations of centrally assessed property in arrivin g at the value o f 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. -3- 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 o f 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, t he Nebraska Supreme Court dismissed the appeal in Gra-Gar Inc. v. Sarp y 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 Pract ice 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 b e nearly identical to those in the pending appeals i n Lancaster County, the county moved to dism iss the previously entered decrees for lack of jurisdiction. The Lancaste r 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, includin g th ose of plaintiffs in the present case, had been resolved, although there had bee n earlier correspondence between plaintiffs' counsel and counsel for Lancaster Count y regarding a proposed resolu tion 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 t o 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-4-

all cases. (It is undisputed that the county board ind eed did so instruct its counsel). At
no time d id plaintiffs ever submit to the county board stipulations of facts an d agreements similar to the ones presented to the board by the taxpayers in the 119 cases in which decrees were entered.
Plain tiffs' pending state court cases eventually were terminated when th e 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 th e taxpayers obtained any relief. The District Court held that the undisputed facts establish th at plaintiffs were not similarly situated co mpared to the other 119 taxpayers at the time defendants rejected plaintiffs' set

tlement overtures. By then, the Gra-Gar appeal had been dismissed, and upon learning of that ruling by the Nebr aska Supreme Court defendants became aware that the l egal landscape had changed. The District Court reasoned that "the Equa l Protection Clause does not require the Defendants to 'settle' otherwise similar claims in a simil ar manner when the underlying law changes such that the second series o f 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.
Plaint iffs attack the District Court's holding and argue in a variety of ways that
summa ry judgment was improperly granted. Having considered all of plaintiffs ' arg uments, we conclude that the decision of the District Court is correct, and th e judgment of the District Court is affirmed on the basis of that court's well-reasone d memorandum opinion. See 8th Cir. R. 47B.-5-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.