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Roland Johnson and Karen Johnson, Trustees of the

Roland and Karen Johnson Trust, appellees, v. 

City of Fremont, Nebraska, a municipal

corporation, appellant.

___ N.W.2d ___

Filed April 18, 2014. No. S-13-668.

1. Summary Judgment. Summary judgment is proper if the pleadings and admissible 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, 

for which an appellate court has an obligation to reach an independent conclusion 

irrespective of the determination made by the court below.

3. Special Assessments: Municipal Corporations: Appeal and Error. The power 

and authority delegated to municipalities to construct improvements and to levy 

special assessments for their payment is strictly construed, and every reasonable 

doubt as to the extent or limitation of such power and authority and the manner 

of exercise thereof is resolved in favor of the taxpayer.

4. Statutes: Legislature: Intent. In order for a court to inquire into a statute’s legislative history, the statute in question must be open to construction, and a statute 

is open to construction when its terms require interpretation or may reasonably be 

considered ambiguous.

5. Statutes: Appeal and Error. The language of a statute is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and 

unambiguous.

6. ____: ____. Absent anything to the contrary, an appellate court will give statutory 

language its plain and ordinary meaning.

7. ____: ____. When construing a statute, an appellate court must look to the 

statute’s purpose and give to the statute a reasonable construction which best 

achieves that purpose, rather than a construction which would defeat it.

8. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.

9. ____. A court must attempt to give effect to all parts of a statute, and if it 

can be avoided, no word, clause, or sentence will be rejected as superfluous 

or meaningless.

10. Summary Judgment. Summary judgment is proper where the facts are uncontroverted and the moving party is entitled to judgment as a matter of law.

11. Summary Judgment: Final Orders: Appeal and Error. Although the denial of 

a motion for summary judgment, standing alone, is not a final, appealable order, 

when adverse parties have each moved for summary judgment and the trial court 

has sustained one of the motions, the reviewing court obtains jurisdiction over 

both motions and may determine the controversy which is the subject of those 
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JOHNSON v. CITY OF FREMONT 961

Cite as 287 Neb. 960

motions or make an order specifying the facts which appear without substantial 

controversy and direct such further proceedings as it deems just.

Appeal from the District Court for Dodge County: Geoffrey

C. Hall, Judge. Reversed and remanded with direction.

Paul A. Payne for appellant.

Steven G. Ranum and Martin P. Pelster, of Croker, Huck, 

Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for 

appellees.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Cassel, J.

INTRODUCTION

A city relied upon Nebraska’s “gap and extend” law1 to pave 

one block of a street and assess the paving costs against abutting property owners. At one end, the new paving adjoined a 

paved intersection of two paved streets. At the other end, there 

was no connecting paved street. We must decide whether the 

paving was authorized under the second sentence of § 18-2001, 

which permitted the city to “pave any unpaved street . . . 

which intersects a paved street for a distance of not to exceed 

one block on either side of such paved street.” Because the 

plain language of the statute authorized the paving, we reverse 

the judgment of the district court and remand the cause 

with direction.

BACKGROUND

The relevant streets are located in the City of Fremont, 

Nebraska (City). An excerpt from a map in evidence will best 

illustrate the situation, both before and after the project which 

is the subject of the instant appeal. We note that the quality of 

the image, although limited by its source, still provides a useful 

reference tool.

1 See Neb. Rev. Stat. §§ 18-2001 to 18-2005 (Reissue 2012).
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We first identify the extent of previous paving of relevant 

streets. On the east end of the map, Garden City Road was 

previously paved. A portion of Donna Street, from the Garden 

City Road intersection to the Jean Drive intersection, was also 

already paved. The paved segment of Donna Street ran parallel to a railroad right-of-way (lower right corner). Jean Drive 

was entirely paved, including both the Garden City Road 

and Donna Street intersections. On the west end of the map, 

a portion of Howard Street was previously paved, but this 

paving ended well north of the intersection of Howard and 

Donna Streets.

Again referring to the map, the contested segment of paving 

on Donna Street (which we have marked with X’s) extended 

one block west from the intersection of Donna Street and 

Jean Drive. Thus, the east end of the segment connected 

to the paved intersection of Donna Street and Jean Drive. 

On the west end, the new pavement ended where it reached 

the unpaved intersection with Howard Street. Thus, at the 
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Cite as 287 Neb. 960

west end, the newly paved segment does not connect to any 

other paving.

Roland Johnson and Karen Johnson, trustees of the Roland 

and Karen Johnson Trust (trustees), who initiated the lawsuit 

now before us, are the legal titleholders of real estate in the 

City. Their property abuts upon and is adjacent to Donna Street.

In August 2009, the mayor and city council of the City 

passed a resolution creating “Improvement Unit No. 97.” The 

resolution stated that under the authority granted in §§ 18-2001 

to 18-2003, the City would pave a portion of Donna Street 

beginning at the west margin of Jean Drive. The resolution 

stated that Donna Street was an unpaved street and that it 

intersected a paved street. The City subsequently passed a resolution which levied a special tax and assessment upon certain 

parcels of real estate—including the trustees’ property—to pay 

the costs of Improvement Unit No. 97.

The trustees filed a petition on appeal, alleging that the 

levy of special assessments was invalid. They claimed that 

the street improvement in Improvement Unit No. 97 did not 

fill an unpaved gap between paved streets, but, rather, merely 

extended the paving on Donna Street. The trustees requested an 

order vacating the special assessments levied upon the property 

and a refund of the special assessment they had paid. In the 

City’s answer, it stated that Donna Street intersects with South 

Howard Street one block west of Jean Drive. The City admitted 

that Improvement Unit No. 97 extended the paving on Donna 

Street and claimed such action was authorized under the unambiguous language of § 18-2001.

Upon the parties’ cross-motions for summary judgment, the 

district court sustained the trustees’ motion and overruled the 

City’s motion. The court observed that the parties argued different interpretations of the same factual scenario. The court 

stated that it found Turner v. City of North Platte2 to be compelling, and the court then quoted the following language that 

can be found in Iverson v. City of North Platte3: “It is clear 

2 Turner v. City of North Platte, 203 Neb. 706, 279 N.W.2d 868 (1979).

3 Iverson v. City of North Platte, 243 Neb. 506, 514, 500 N.W.2d 574, 579 

(1993).
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that the Legislature intended that the gap and extend procedure 

be used only to fill one- or two-block unpaved gaps which 

exist between paved streets.” The court stated that Donna 

Street extended in the direction of an unpaved area and did not 

connect with or fill a gap with a paved intersection. Thus, the 

court concluded that the City did not “comport with the limitations and restrictions required by the gap and extend law.” The 

court ordered the City to refund to the trustees the assessment 

payments they had made.

The City timely appealed, and we moved the case to our 

docket under our statutory authority to regulate the caseloads 

of the appellate courts of this state.4

ASSIGNMENTS OF ERROR

The City assigns that the district court erred in (1) sustaining the trustees’ motion for summary judgment, (2) finding 

the City exceeded the limitations imposed by §§ 18-2001 to 

18-2003, (3) finding the assessments against the trustees’ properties arising from Improvement Unit No. 97 were invalid, (4) 

failing to properly define the statutory scheme and interpret 

the law and statutes, and (5) using a point not necessary to be 

passed on in Iverson v. City of North Platte5 as authority in 

this case.

STANDARD OF REVIEW

[1] Summary judgment is proper if the pleadings and admissible 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.6

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the 

court below.7

4 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

5 Iverson, supra note 3.

6 Harris v. O’Connor, ante p. 182, 842 N.W.2d 50 (2014).

7 Hess v. State, ante p. 559, 843 N.W.2d 648 (2014).
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ANALYSIS

[3] At the outset, we recall that the power and authority 

delegated to municipalities to construct improvements and to 

levy special assessments for their payment is strictly construed, 

and every reasonable doubt as to the extent or limitation of 

such power and authority and the manner of exercise thereof is 

resolved in favor of the taxpayer.8

The crux of this appeal is whether the City exceeded its 

authority under Nebraska’s gap and extend law.9 Section 

18-2001 provides in part:

Any city or village may, without petition or creating 

a street improvement district, . . . pave any portion of 

a street otherwise paved so as to make one continuous 

paved street, but the portion to be so improved shall not 

exceed two blocks, including intersections, or thirteen 

hundred and twenty-five feet, whichever is the lesser. 

Such city or village may also . . . pave any unpaved street 

or alley which intersects a paved street for a distance 

of not to exceed one block on either side of such paved 

street. The improvements authorized by this section may 

be performed upon any portion of a street or any unpaved 

street or alley not previously improved to meet or exceed 

the minimum standards for pavement set by the city or 

village for its paved streets.

The City concedes that the first sentence of § 18-2001 did 

not empower it to make the improvement, but contends that 

the second sentence provided independent authority to do so. 

It argues that under the second sentence, it had the authority to create a paving district which extends a street for up 

to one block from an intersecting paved street. According 

to the City, “this is the paving of an extension of Donna 

Street for one block from where it intersects Jean Drive, a 

paved street.”10

The trustees argue that a more narrow interpretation of 

§ 18-2001 is warranted and that “[t]he text of the statute, its 

8 Iverson, supra note 3.

9 See §§ 18-2001 to 18-2005.

10 Brief for appellant at 10.
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legislative history, and the case law interpreting § 18-2001 

limit a city’s authority under § 18-2001 to instances where 

a city paves a one or two block unpaved gap between paved 

streets.”11 The trustees state that “[a]t the very least, an ambiguity exists in the statute as to whether the phrase ‘so as to 

make one continuous paved street’ applies to limit both the first 

and second sentence in § 18-2001, or just the first sentence.”12

We disagree.

[4] First, we determined long ago that the provisions of the 

gap and extend law are clear and unambiguous.13 In order for 

a court to inquire into a statute’s legislative history, the statute in question must be open to construction, and a statute is 

open to construction when its terms require interpretation or 

may reasonably be considered ambiguous.14 Because we have 

determined that provisions of the gap and extend law are clear 

and unambiguous, they are not open to construction. Thus, we 

need not inquire into the statute’s legislative history.

Second, the ordinary principles governing statutory interpretation lead to the same conclusion in the case before us. 

Several principles apply, and we discuss each in turn.

[5-7] The plain language of the statute’s second sentence 

clearly applies to the City’s extension of Donna Street. The 

language of a statute is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous.15 In other words, absent anything to the contrary, an appellate court will give statutory language its plain and ordinary meaning.16 And when construing 

a statute, an appellate court must look to the statute’s purpose 

and give to the statute a reasonable construction which best 

achieves that purpose, rather than a construction which would 

11 Brief for appellees at 4.

12 Id. at 6-7.

13 Gaughen v. Sloup, 197 Neb. 762, 250 N.W.2d 915 (1977).

14 Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d 

600 (2012).

15 Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 (2013).

16 Hess, supra note 7.
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defeat it.17 Plainly, the first two sentences of § 18-2001 provide separate but complementary powers to the City. The first 

sentence provides the power to fill a “gap,” that is, an unpaved 

area between two paved areas. The second sentence, on the 

other hand, empowers a city to make a single-block extension 

of paving from an intersecting street. The Legislature used the 

word “also” to make it clear that the second sentence provided 

an additional power beyond that granted by the first sentence. 

Thus, the second sentence provides a very limited power to 

“extend” paving without a property owner’s consent. The 

complementary powers of the gap and extend law are plainly 

evident from the words of the statute. Donna Street intersected 

Jean Drive, a paved street. Thus, the statute allowed the City 

to pave Donna Street for one block from that intersection. And 

that is precisely what the City did.

[8,9] The trustees’ interpretation would effectively eliminate the second sentence of § 18-2001. It is not within the 

province of the courts to read a meaning into a statute that 

is not there or to read anything direct and plain out of a statute.18 Thus, a court must attempt to give effect to all parts of a 

statute, and if it can be avoided, no word, clause, or sentence 

will be rejected as superfluous or meaningless.19 The trustees have not identified any additional power that would be 

conferred by the second sentence under their interpretation. 

Thus, their interpretation would render the second sentence 

superfluous or meaningless. For that reason, we must reject 

their interpretation.

The district court’s reliance on Iverson, as urged by the 

trustees, was misplaced. The court’s order quotes the following language that can be found in Iverson: “It is clear that 

the Legislature intended that the gap and extend procedure 

be used only to fill one- or two-block unpaved gaps which 

exist between paved streets.”20 But the situation presented 

17 Id.

18 State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 96 (2013).

19 Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 

(2013).

20 Iverson, supra note 3, 243 Neb. at 514, 500 N.W.2d at 579.
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in Iverson was entirely different. There, the municipality, 

using a “gap-stacking strategy,” attempted to circumvent the 

necessity of creating a paving district, which would require 

consent of the landowners prior to its initiation.21 Moreover, 

the Iverson court recognized that two related paving districts, 

not affected by the Iverson decision, had been “created under 

the provision of § 18-2001 which allows a city to pave any 

unpaved streets which intersect a paved street for a distance 

of one block on either side of such paved street.”22 In each 

instance, one block of an unpaved street perpendicular to an 

intersecting paved street was paved under the same language 

of § 18-2001 upon which the City relies. Although the Iverson

court resorted to legislative history, it did so in the context of 

an attempt to stack a two-block gap district to further extend 

a properly enacted one-block gap district. To the extent that 

Iverson speaks to the situation before us, it supports the 

City’s position.

[10,11] The district court correctly recognized that there 

was no genuine issue of material fact, but because of its 

erroneous statutory interpretation, the court granted summary 

judgment to the wrong party. Summary judgment is proper 

where the facts are uncontroverted and the moving party 

is entitled to judgment as a matter of law.23 Both parties 

moved for summary judgment. The court should have sustained the City’s motion but instead sustained the trustees’ 

motion. Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when 

adverse parties have each moved for summary judgment and 

the trial court has sustained one of the motions, the reviewing 

court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions 

or make an order specifying the facts which appear without 

substantial controversy and direct such further proceedings as 

21 Id.

22 Id. at 512, 500 N.W.2d at 578.

23 McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386 

(2011).
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it deems just.24 Because there is no issue of fact and the City 

is entitled to judgment as a matter of law, we determine the 

controversy accordingly.

CONCLUSION

We conclude that the improvement unit mandating the 

paving of one block of Donna Street, which intersected Jean 

Drive, was plainly authorized by the second sentence of 

§ 18-2001. We reverse the judgment of the district court and 

remand the cause with direction to enter judgment in favor of 

the City.

Reversed and remanded with direction.

24 U.S. Bank Nat. Assn. v. Peterson, 284 Neb. 820, 823 N.W.2d 460 (2012).

Jeff Hall, appellee and cross-appellee, v. County

of Lancaster, appellant and cross-appellee, 

and Norris School District No. 160, 

appellee and cross-appellant.

___ N.W.2d ___

Filed April 18, 2014. No. S-13-724.

1. Tort Claims Act. Whether the allegations made by a plaintiff present a claim that 

is precluded by exemptions set forth in the State Tort Claims Act is a question 

of law.

2. Political Subdivisions Tort Claims Act: Tort Claims Act. The Political 

Subdivisions Tort Claims Act includes a discretionary function exception similar 

to that contained in the State Tort Claims Act, and thus, cases construing the State 

Tort Claims Act exception are equally applicable to the discretionary function 

exception in the Political Subdivisions Tort Claims Act.

3. Political Subdivisions Tort Claims Act: Appeal and Error. An appellate court 

has an obligation to reach its conclusion on whether a claim is precluded by 

exemptions set forth in the Political Subdivisions Tort Claims Act independent 

from the conclusion reached by the trial court.

4. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political 

Subdivisions Tort Claims Act provides limited waivers of sovereign immunity 

which are subject to statutory exceptions.

5. Pretrial Procedure: Parties. A pretrial order is binding upon the parties.

6. Pretrial Procedure: Pleadings. The issues set out in a pretrial order supplant 

those raised in the pleadings.