- 548 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

Salem Grain Company, Inc., a Ne

corporation, et al., appellants, 

City of Falls City et al., appellees

___ N.W.2d ___

Filed March 22, 2019. No. S-17-277.

1. 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.

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 decision made by the 

court below.

3. Actions: Equity: Public Meetings: Appeal and Error. An appellate 

court reviews actions for relief under the Open Meetings Act in equity 

because the relief sought is in the nature of a declaration that action 

taken in violation of the act is void or voidable.

4. Equity: Appeal and Error. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent 

of the conclusion reached by the trial court. But when credible evidence 

is in conflict on material issues of fact, an appellate court may give 

weight to the fact the trial court observed the witnesses and accepted 

one version of the facts over another.

5. Statutes. Statutes relating to the same subject, though enacted at different times, are in pari materia and should be construed together.

6. Statutes: Legislature: Intent. Statutes relating to the same subject 

should be construed together to determine the intent of the Legislature, 

so that different provisions are consistent, harmonious, and sensible.

7. ____: ____: ____. When two statutes are capable of coexistence, it is 

the duty of the courts, absent a clearly expressed legislative intention to 

Nebraska Supreme Court Online Library

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

05/31/2019 12:07 AM CDT
- 549 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

the contrary, to regard each as effective, and to harmonize overlapping 

statutes so long as each reaches some distinct cases.

8. Statutes. Where it is possible to harmonize apparently conflicting statutes, a court should do so.

9. Actions: Bonds: Contracts: Statutes: Presumptions: Time. Construed 

together, Neb. Rev. Stat. §§ 18-2129 and 18-2142.01 (Reissue 2012) 

effectively provide that any suit, action, or proceeding brought outside 

the 30-day period established in § 18-2142.01 will be subject to the conclusive presumptions required by §§ 18-2129 and 18-2142.01, as long 

as the action is one challenging the validity or enforceability of a redevelopment bond or contract and the bond or contract recites in substance 

the language required by the statutes.

10. Statutes: Legislature: Intent. In the absence of clear legislative intent, 

a construction of a statute will not be adopted which has the effect of 

nullifying or repealing another statute.

11. Statutes. It is not within the province of the courts to read a meaning 

into a statute which is not there.

12. Pleadings. An affirmative defense raises a new matter which, assuming the allegations in the petition or complaint to be true, constitutes 

a defense to the merits of a claim asserted in the petition. An affirmative defense generally avoids, rather than negates, the plaintiff’s prima 

facie case.

13. Statutes: Presumptions: Limitations of Actions. A statute providing 

a conclusive presumption is very different from a statute of limitations, 

and the conclusive presumptions under Neb. Rev. Stat. §§ 18-2129 and 

18-2142.01 (Reissue 2012) are not statutes of limitation.

14. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by these rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

15. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determining the relevance of evidence, and an appellate court will not reverse a trial court’s decision regarding relevance 

absent an abuse of discretion.

16. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

17. Evidence: Words and Phrases. Relevant evidence means evidence 

having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.
- 550 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

Appeal from the District Court for Richardson County: 

Daniel E. Bryan, Jr., Judge. Affi

Stephen D. Mossman, Ryan K. McIntosh, and J.L. Spray, of 

Mattson Ricketts Law Firm, for appellants.

John M. Guthery, Jeanette Stull, and Derek A. Aldridge, of 

Perry, Guthery, Haase & Gessford, P.C., L.L.O., for appellee 

Community Redevelopment Authority of the City of Falls City.

Terry C. Dougherty, Kari A.F. Scheer, and Audrey R. Svane, 

of Woods & Aitken, L.L.P., for appellee Consolidated Grain 

and Barge Co.

Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.P., for 

appellee City of Falls City.

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

Papik, JJ., and Vaughan, District Ju

Stacy, 

This is the latest in a series of appeals involving litigation over a redevelopment project in the City of Falls 

City, Nebraska.1 In this case, the plaintiffs filed suit seeking 

a declaratory judgment that the redevelopment project was 

not planned or adopted in accordance with the Community 

Development Law2 and requesting a permanent injunction to 

prevent the project from proceeding. Most of the plaintiffs’ 

claims were dismissed on summary judgment, and the remaining claims were dismissed after a bench trial. The plaintiffs 

appeal. Although our reasoning differs from that of the district 

court, we affirm.

1 See, Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 

900 N.W.2d 909 (2017); Frederick v. City of Falls City, 295 Neb. 795, 

890 N.W.2d 498 (2017); Frederick v. City of Falls City, 289 Neb. 864, 857 

N.W.2d 569 (2015).

2 Neb. Rev. Stat. §§ 18-2101 to 18-2144 (Reissue 2012).
- 551 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

I. BACKGROUND

1. Redevelopment Pr

Falls City is a community located in Richardson County, 

Nebraska. Pursuant to the Community Development Law, 

Falls City created the five-member Falls City Community 

Redevelopment Authority (the Authority) to redevelop blighted 

or substandard areas within Falls City.3

In 2012, Consolidated Grain and Barge Co. (Consolidated 

Grain) proposed a redevelopment project that involved constructing a new commercial grain receiving, storage, and shipping facility in Falls City using tax increment financing (TIF). 

The owner of another commercial grain facility in the area, 

Salem Grain Company, Inc. (Salem Grain), opposed the redevelopment project.

During the summer and fall of 2012, land for the redevelopment project was annexed by Falls City, a zoning change 

was recommended and approved for the annexed land, a study 

was conducted upon which the land was declared blighted 

and substandard, a cost-benefit analysis was conducted, and 

a redevelopment plan was prepared. Ultimately, in September 

and October 2012, the redevelopment project was approved at 

separate public meetings of the Authority, the city council of 

Falls City, and the planning commission of Falls City.

On November 10, 2012, the Authority and Consolidated 

Grain formally entered into a redevelopment contract. 

Summarized, the redevelopment contract required Consolidated 

Grain to acquire the land for the project and construct the grain 

facility, and in exchange, the Authority agreed to enter into 

and utilize TIF indebtedness to fund a portion of the project. 

Thereafter, a TIF bond in the amount of $3,710,000 was issued 

by the Authority and sold to Consolidated Grain. The bond 

funds were disbursed to Consolidated Grain pursuant to the 

redevelopment contract. Roughly 1 year later, Consolidated 

3 See § 18-2101.01.
- 552 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

Grain completed construction of the commercial grain facility 

and began business operations.

2. Lawsui

(a) Original Complaint

On October 24, 2012, approximately 2 weeks before the 

redevelopment contract was formally entered into, Salem Grain 

and two residents of Falls City (collectively Salem Grain) filed 

a lawsuit against the City of Falls City, the Authority, and 

Consolidated Grain in the district court for Richardson County, 

Nebraska. The complaint sought declaratory and injunctive 

relief and was styled as 12 separate causes of action.

The first 11 causes of action sought declarations that the 

redevelopment project had not been planned and adopted in 

accordance with the Community Development Law, alleging 

specifically that (1) the blighted and substandard study was 

insufficient, (2) the redevelopment plan did not conform to 

a “‘general plan’” for the development of Falls City, (3) the 

Authority acted without a quorum at several key meetings, (4) 

the cost-benefit analysis was insufficient, (5) it was improper 

to include TIF in the redevelopment plan, (6) the redevelopment plan was improperly adopted by the city council, (7) the 

redevelopment plan was improperly adopted by the Authority, 

(8) the city council impermissibly renamed a portion of the 

platted land included in the redevelopment project, (9) Falls 

City provided an insufficient public comment period regarding 

its plan to finance the redevelopment project using community 

development block grant program funds, (10) the Authority’s 

adoption of the resolution approving TIF was null and void, 

and (11) the land for the redevelopment project was improperly 

annexed. Salem Grain’s 12th cause of action sought to equitably estop the city council from asserting that the redevelopment project was not feasible without TIF funding.

The prayer for relief sought (1) declarations that the redevelopment project was not properly planned or adopted for all 

of the reasons alleged in the various causes of action; (2) a 
- 553 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

declaration that because the project was not properly adopted, 

the “Redevelopment Contract, and any bonds issued thereto, 

are null and void”; and (3) a permanent injunction blocking the 

redevelopment project from proceeding.

Falls City, the Authority, and Consolidated Grain (collectively the defendants) moved to dismiss the original complaint 

for reasons that are not relevant to the issues on appeal. The 

district court granted the motion to dismiss, and Salem Grain 

was given leave to file an amended complaint.

(b) Amended Complaint

The amended complaint was filed January 22, 2013, and 

is the operative complaint in this action. Like the original 

complaint, the amended complaint was styled as 12 causes of 

action. The first 11 sought declarations that the redevelopment 

project had not been planned and adopted in accordance with 

the Community Development Law for generally the same reasons alleged in the original complaint.

The 12th cause of action alleged the Authority held two 

meetings which violated Nebraska’s Open Meetings Act4

(NOMA), and it sought to have the actions taken during those 

meetings declared void.5 The first meeting allegedly occurred 

on August 15, 2012, when three members of the Authority 

attended a community dinner that included the mayor, members of the city council, community business leaders, and 

representatives from Consolidated Grain. The second meeting 

allegedly occurred on November 9, in the context of email 

communications between members of the Authority.

Like the original complaint, the amended complaint sought 

(1) declarations that the redevelopment project was not properly adopted for all of the reasons alleged in the various 

causes of action; (2) a declaration that because the project was 

not properly adopted the “Redevelopment Contract, and any 

bonds issued thereto, are null and void”; and (3) a permanent 

4 Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 2008 & Supp. 2011).

5 See § 84-1414.
- 554 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

injunction blocking the redevelopment project from proceeding. In addition, the amended complaint sought a declaration 

that any formal action taken by the Authority in violation of 

NOMA was void.6

After the amended complaint was filed, the court dismissed 

the 11th cause of action for reasons that are not relevant to 

the issues on appeal. Thereafter, answers were filed and the 

defendants proceeded to defend the amended complaint on 

the merits. Due to the procedural complexity of this case, we 

discuss only that which relates to the issues raised on appeal.

(c) Completion of Redevelopment Project

While the lawsuit was pending, the redevelopment project 

was completed. It is undisputed that the project was completed 

in September 2013 and that Consolidated Grain has been operating the commercial grain receiving, storage, and shipping 

facility since that time.

(d) Motion to File Second 

Amended Complaint

On December 17, 2015, nearly 2 years after completion of 

the redevelopment project, Salem Grain tried unsuccessfully 

to further amend its complaint. The proposed second amended 

complaint sought to add claims of “improper economic development” and “unjust enrichment” resulting from the TIF funds 

provided to Consolidated Grain. The proposed second amended 

complaint also sought to alter the nature of the relief being 

requested; rather than seeking injunctive relief to prevent the 

redevelopment project from proceeding, the proposed second 

amended complaint sought “[r]ecission, recoupment and restitution” of the TIF funds paid to Consolidated Grain.

After a hearing, the district court denied leave to amend, 

finding that Salem Grain’s request was unnecessarily delayed 

and that the proposed amendment would be unduly prejudicial 

to the defendants.

6 See id.
- 555 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

(e) Summary Judgment

In April 2016, the defendants moved for summary judgment on the amended complaint, claiming the requested 

declaratory and injunctive relief had been rendered moot by 

completion of the redevelopment project. The district court 

agreed and granted partial summary judgment in favor of the 

defendants on Salem Grain’s first 10 causes of action. But the 

court denied summary judgment on the 12th cause of action 

alleging NOMA violations, reasoning that the completion 

of the redevelopment project had not rendered the NOMA 

claims moot. A bench trial was set to resolve the remaining 

NOMA claims.

(f) Motion to File Third 

Amended Complaint

As the date for the bench trial neared, Salem Grain filed a 

motion to continue trial and again requested leave to further 

amend its complaint. Salem Grain’s proposed third amended 

complaint was substantially similar to the proposed second 

amended complaint which had not been permitted, but it 

alleged several additional NOMA violations. The district court 

overruled the motion to amend and refused to continue the 

bench trial.

(g) Trial

The bench trial on the alleged NOMA violations was held 

on February 9, 2017. Salem Grain tried to offer evidence 

related to several alleged NOMA violations, but the defendants 

objected on relevancy grounds and the district court limited 

the evidence to the violations alleged in the operative complaint: the August 15, 2012, dinner and the November 9, 2012, 

email communications.

Salem Grain argued that both the August 15, 2012, dinner 

and the November 9 email communications were “meetings” of 

the Authority under § 84-1409, and it sought to have any action 

taken on the redevelopment project during these meetings 

declared void under § 84-1414. After considering the evidence, 
- 556 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

the district court concluded that neither event was a meeting of 

the Authority under NOMA.

Regarding the dinner, the district court found it was 

hosted by the Falls City Economic Development and Growth 

Enterprise, and was attended by many Falls City community 

leaders, including three members of the Authority. At the dinner, which some witnesses described as a “meet-and-greet,” 

Consolidated Grain gave a presentation regarding its interest 

in constructing the grain facility. Salem Grain argued that 

because of the presentation, members of the Authority were 

essentially “brief[ed]” by Consolidated Grain during the dinner 

and later used that information to approve the redevelopment 

project. The district court found the dinner was not a meeting 

that required compliance with NOMA, reasoning that there 

was insufficient evidence regarding the substance of the information actually presented at the dinner and that there was no 

direct evidence any Authority member used the information in 

later approving the redevelopment project.

Regarding the November 9, 2012, email communications, 

the court found an email had been sent by the Authority’s 

chairman to all Authority members. The email advised that 

Salem Grain had recently filed a lawsuit and told the members that the chairman intended to proceed with executing the 

redevelopment contract with Consolidated Grain, but that he 

would be adding amendments recommended by counsel to 

(1) disclose the lawsuit and (2) add language to the existing 

indemnification provision. Prior to November 9, the Authority 

had approved the redevelopment contract with Consolidated 

Grain during a public meeting and had adopted a resolution 

authorizing the chairman to “take any and all actions, and to 

execute any and all documents” deemed necessary to conclude 

the transaction. The chairman’s November 9 email stated:

Should any [Authority] member find need to discuss 

and/or act upon these matters, notice needs to be provided 

to me by 8 pm today (11/9/12) so that I may schedule 

a special meeting for that purpose. Otherwise, you are 
- 557 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

hereby notified that I intend to execute the Redevelopment 

Contract as previously authorized by the [Authority] with 

the above cited immaterial changes recommended by 

legal counsel and proceed with the issuance of bonds and 

a TIF Grant to Consolidated Grain . . . .

All members of the Authority responded via email to the chairman, indicating that a special meeting was not necessary and 

that the chairman could proceed to execute the redevelopment 

contract pursuant to the earlier resolution. The district court 

found this email exchange was not a “meeting” as defined 

in § 84-1409(2), reasoning that no new action was taken or 

authorized by the Authority during this exchange beyond that 

which already had been taken or authorized during the earlier 

public meeting.

After concluding Salem Grain had not met its burden of 

proving either alleged violation of NOMA, the court entered 

an order dismissing the action. No attorney fees were allowed. 

Salem Grain timely appealed, and we moved the case to 

our docket.

II. ASSIGNMENTS OF ERROR

Salem Grain assigns, restated, that the district court erred in 

(1) making certain discovery rulings, (2) denying Salem Grain 

leave to file a second amended complaint, (3) granting the 

defendants’ motion for partial summary judgment, (4) denying Salem Grain leave to file a third amended complaint, (5) 

denying Salem Grain’s motion to continue trial, (6) excluding 

evidence of additional NOMA violations at trial, and (7) dismissing the NOMA claims after trial.

III. STANDARD OF REVIEW

[1,2] 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.7 Statutory interpretation presents a question of 

7 Ray Anderson, Inc. v. Buck’s, Inc., 300 Neb. 434, 915 N.W.2d 36 (2018).
- 558 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision made by 

the court below.8

[3,4] An appellate court reviews actions for relief under 

NOMA in equity because the relief sought is in the nature of 

a declaration that action taken in violation of the act is void or 

voidable.9 On appeal from an equity action, an appellate court 

tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion 

independent of the conclusion reached by the trial court.10 But 

when credible evidence is in conflict on material issues of fact, 

we consider and may give weight to the fact the trial court 

observed the witnesses and accepted one version of the facts 

over another.11

IV. ANALYSIS

1. Supplemental Bri

After oral argument, the parties were ordered to file supplemental briefs (1) addressing whether Salem Grain brought its 

lawsuit within the timeframe set forth in § 18-2142.01 and 

(2) analyzing the impact, if any, of this court’s holding in 

Community Dev. Agency v. PRP Holdings12 on Salem Grain’s 

claims. This briefing was requested to assist the court in determining whether the conclusive presumptions contained in the 

Community Development Law13 have any effect on Salem 

Grain’s action challenging the validity and enforceability of the 

redevelopment contract and bonds.

8 Salem Grain Co., supra note 1.

9 Schauer v. Grooms, 280 Neb. 426, 786 N.W.2d 909 (2010).

10 Id.

11 Id.

12 Community Dev. Agency v. PRP Holdings, 277 Neb. 1015, 767 N.W.2d 68 

(2009).

13 See §§ 18-2129 and 18-2142.01.
- 559 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

Salem Grain’s supplemental briefing urges this court to 

find that the reasoning of PRP Holdings is inapplicable and 

that the conclusive presumption does not foreclose its claims 

under the Community Development Law. The defendants, in 

a joint supplemental brief, argue just the opposite. Although 

they advance different statutory interpretations, no party raises 

a constitutional challenge to any provision of the Community 

Development Law. Because we find the applicability of the 

conclusive presumption to be dispositive of Salem Grain’s 

claims under the Community Development law, we begin our 

analysis with an overview of the relevant statutory scheme.

2. Conclusive Presumptions

Community Development

In 1951, the Nebraska Legislature passed an act referred 

to as the Community Development Law.14 Included in that 

act is § 18-2129, which at the time of the instant litigation 

provided:

In any suit, action, or proceedings involving the validity 

or enforceability of any bond of an authority or the security therefor, any such bond reciting in substance that it 

has been issued by the authority to aid in financing a redevelopment project, as herein defined, shall be conclusively 

deemed to have been issued for such purpose and such 

project shall be conclusively deemed to have been planned, 

located, and carried out in accordance with the purposes 

and provisions of [the Community Development Law].15

Section 18-2129 applies only to certain suits, actions or 

proceedings—those involving the validity and enforceability 

of bonds issued by a community redevelopment authority 

where the bond recites certain language. But when these factual predicates are met, § 18-2129 applies to more than just 

14 1951 Neb. Laws, ch. 224, § 1, p. 797 (currently codified at § 18-2101).

15 See 1951 Neb. Laws, ch. 224, § 10(6), p. 813.
- 560 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

the redevelopment bonds and requires a court to “conclusively 

deem[]” the entire redevelopment project to have been planned, 

located, and carried out in accordance with the Community 

Development law. The Community Development Law does not 

expressly label this a “conclusive presumption,” but we adopt 

that term for ease of reference because it accurately describes 

the legal effect of the statutory language.

In 1997, the Legislature added another statute16 to the act 

which, as we explain below, created a narrow exemption from 

the conclusive presumption established by § 18-2129. But 

before we discuss the 1997 statute, we discuss the nature of 

conclusive presumptions generally.

Commentators have observed that a conclusive presumption “is not a presumption at all, but rather, a substantive rule 

of law directing that proof of certain basic facts conclusively 

proves an additional fact which cannot be rebutted.”17 The 

legislative decision to make a presumption conclusive is one 

based on “overriding social policy”18 and typically “rest[s] 

upon grounds of expediency or public policy so compelling in 

character as to override the requirement of proof.”19 The Utah 

Supreme Court has explained that “[w]hen the Legislature 

includes a conclusive presumption in a statute, [it is] stating 

that the objective promoted by the conclusive presumption 

is of greater importance than the opportunity to present facts 

challenging the presumed fact.”20

It has been observed that conclusive presumptions frequently 

occur in statutes pertaining to decisions of governmental 

16 1997 Neb. Laws, L.B. 875 (currently codified at § 18-2142.01).

17 29 Am. Jur. 2d Evidence § 201 at 215 (2008). Accord 1 Clifford S. 

Fishman, Jones on Evidence Civil and Criminal § 4:57 (7th ed. 1992).

18 1 Fishman, supra note 17 at 393.

19 29 Am. Jur. 2d, supra note 17, citing U.S. v. Provident Trust Co., 291 U.S. 

272, 54 S. Ct. 389, 78 L. Ed. 793 (1934).

20 Davis v. Provo City Corp., 193 P.3d 86, 90-91 (Utah 2008).
- 561 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

entities.21 This is certainly the case in Nebraska, where conclusive presumptions appear in several different statutes addressing suits brought to challenge the actions of governmental 

entities.22 Some of these Nebraska statutes reference a point 

in time after which the conclusive presumption applies,23 and 

others do not contain any temporal limitation.24 But regardless, 

when considering the application of conclusive presumptions, 

it is important to understand they are evidentiary rules affecting the merits of an action and not procedural time limits on 

bringing an action.25

As stated, Nebraska’s Community Development Law contains two separate statutes governing conclusive presumptions. 

The first is § 18-2129, which was quoted above. The other is 

§ 18-2142.01, enacted in 1997, which provides:

(1) In any suit, action, or proceeding involving the 

validity or enforceability of any bond of a city, village, or 

authority or the security therefor brought after the lapse 

of thirty days after the issuance of such bonds has been 

authorized, any such bond reciting in substance that it has 

been authorized by the city, village, or authority to aid in 

financing a redevelopment project shall be conclusively 

deemed to have been authorized for such purpose and 

21 Davis, supra note 20.

22 See, e.g., Neb. Rev. Stat. § 13-1109 (Reissue 2012); Neb. Rev. Stat. 

§ 13-2512 (Reissue 2012); §§ 18-2129 and 18-2142.01; Neb. Rev. Stat. 

§§ 18-2424 and 18-2434 (Reissue 2012); Neb. Rev. Stat. § 58-519 

(Reissue 2010); Neb. Rev. Stat. § 70-1406(5) (Reissue 2018); Neb. Rev. 

Stat. § 71-15,116 (Reissue 2018).

23 See, e.g., § 13-1109(3) (conclusive presumption applies to actions “brought 

after the lapse of thirty days after” contract is formally entered into or 

issuance of bonds has been authorized); § 18-2142.01 (same); § 58-519 

(conclusive presumption applies in actions “brought after the lapse of 

thirty days after the bonds are issued”). 

24 See, e.g., §§ 13-2512, 18-2129, 18-2424, 18-2434, 70-1406(5), and 

71-15,116.

25 Davis, supra note 20.
- 562 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

such redevelopment project shall be conclusively deemed 

to have been planned, located, and carried out in accordance with the purposes and provisions of the Community 

Development Law . . . .

(2) In any suit, action, or proceeding involving the 

validity or enforceability of any agreement of a city, village, or authority brought after the lapse of thirty days 

after the agreement has been formally entered into, any 

such agreement reciting in substance that it has been 

entered into by the city, village, or authority to provide 

financing for an approved redevelopment project shall be 

conclusively deemed to have been entered into for such 

purpose and such project shall be conclusively deemed 

to have been planned, located, and carried out in accordance with the purposes and provisions of the Community 

Development Law . . . .

Neither § 18-2129 nor § 18-2142.01 expressly references 

the other, but both statutes relate to the same subject matter: 

application of a conclusive presumption in actions brought 

to challenge redevelopment contracts and bonds under the 

Community Development Law. Section 18-2129 addresses 

actions brought to challenge bonds of a redevelopment authority, while § 18-2142.01 addresses actions brought to challenge 

both redevelopment bonds and redevelopment contracts. But 

under both statutes, when the factual predicates are met and 

the conclusive presumption applies, courts are required to 

deem the entire redevelopment project to have been “planned, 

located, and carried out in accordance with the purposes and 

provisions of ” the Community Development Law.26

Despite their similarities, there is tension between 

§§ 18-2129 and 18-2142.01. The former contains no temporal 

restriction on application of the conclusive presumption, but 

the latter expressly identifies a time period after which the 

26 § 18-2129. Accord § 18-2142.01(1) and (2).
- 563 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

conclusive presumption applies.27 This is our first opportunity 

to construe this competing language, and in doing so, we are 

guided by well-settled principles of statutory construction.

[5-7] Long ago we recognized the fundamental principle 

that statutes relating to the same subject, although enacted 

at different times, are in pari materia and should be construed together.28 Because §§ 18-2129 and 18-2142.01 address 

the same conclusive presumption under the Community 

Development Law, we construe them together to determine 

the intent of the Legislature, so that different provisions are 

consistent, harmonious, and sensible.29 And when two statutes 

are capable of coexistence, it is the duty of the courts, absent a 

clearly expressed legislative intention to the contrary, to regard 

each as effective, and to harmonize overlapping statutes “so 

long as each reaches some distinct cases.”30

The conclusive presumption established in § 18-2129 already 

existed when § 18-2142.01 was enacted, but the two statutes 

plainly overlap. The conclusive presumption under § 18-2129 

applies to all suits challenging the validity or enforceability 

of a redevelopment bond, without regard to when the suit was 

brought. The conclusive presumption under § 18-2142.01 also 

applies to suits challenging redevelopment bonds (as well as 

contracts), but that statute only applies the conclusive presumption to suits “brought after the lapse of thirty days after” 

the issuance of the bonds has been authorized31 or the contract 

has been formally entered into.32

27 See § 18-2142.01(1) (“after the lapse of thirty days after” triggering 

event). Accord § 18-2142.01(2).

28 Enyeart v. City of Lincoln, 136 Neb. 146, 285 N.W. 314 (1939).

29 See State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).

30 See Citizens of Humanity v. Applied Underwriters, 299 Neb. 545, 560, 

909 N.W.2d 614, 627 (2018), cert. denied ___ U.S. ___, 139 S. Ct. 274, 

202 L. Ed. 2d 135, quoting J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred 

International, Inc., 534 U.S. 124, 122 S. Ct. 593, 151 L. Ed. 2d 508 (2001).

31 § 18-2142.01(1).

32 § 18-2142.01(2).
- 564 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

[8] Where it is possible to harmonize apparently conflicting statutes, a court should do so.33 Reading the plain text of 

§§ 18-2129 and 18-2142.01 together, we conclude they can 

be harmonized, and each can be given effect, if § 18-2129 

is understood to create a conclusive presumption that applies 

anytime the factual predicates are met and § 18-2142.01 is 

understood to modify that conclusive presumption by creating a narrow exemption for actions brought during the 30-day 

period after the contract is formally entered into or the bond is 

authorized to be issued.

[9] So construed, §§ 18-2129 and 18-2142.01 together effectively provide that any suit, action, or proceeding brought 

outside the 30-day period established in § 18-2142.01 will be 

subject to the conclusive presumptions required by §§ 18-2129 

and 18-2142.01, as long as the action is one challenging the 

validity or enforceability of a redevelopment bond or contract 

and the bond or contract recites in substance the language 

required by the statutes.

Although not dispositive, we note the legislative history supports such a construction. Ordinarily, when construing statutes, 

we look no further than the plain text.34 But a court may inquire 

into legislative history when a statute is open to construction 

because its terms require interpretation or may reasonably be 

considered ambiguous.35 The senator who introduced what 

became § 18-2142.01 described it as creating “a 30-day window” to challenge the validity and enforceability of redevelopment bonds and contracts, before the conclusive presumption 

applied.36 Without any discussion of § 18-2129, we adopted a 

similar interpretation in PRP Holdings.

37

33 See Hoiengs v. County of Adams, 254 Neb. 64, 574 N.W.2d 498 (1998).

34 See McGuire, supra note 29.

35 Id.

36 See Floor Debate, L.B. 875, 95th Leg., 1st Sess. 8095 (May 22, 1997) 

(remarks of Senator Paul Hartnett).

37 PRP Holdings, supra note 12.
- 565 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

In that case, the community development agency (Agency) 

entered into a redevelopment contract to convert a building 

into apartments. The redevelopment contract included TIF 

funding. After the redevelopment project was completed, it 

was sold to a subsequent purchaser. The Agency, claiming the subsequent purchaser was not entitled to TIF funds, 

brought a lawsuit seeking to have the redevelopment contract 

declared void ab initio, alleging it failed to comply with the 

Community Development Law. The district court found the 

conclusive presumption under § 18-2142.01(2) foreclosed the 

Agency from contesting the redevelopment contract’s validity. On appeal, we agreed. After reciting the provisions of 

§ 18-2142.01(2), we explained the purpose and effect of that 

statute as follows:

The Legislature has set a specific window of time 

during which a party can challenge a redevelopment contract. Under the statute, after the window has closed, the 

contract has conclusively complied with the [Community 

Development Law] and Neb. Rev. Stat. §§ 18-2145 to 

18-2154 (Reissue 1997). In short, § 18-2142.01(2) provides finality and gives all parties to a contract that provides financing for a redevelopment project a green light 

to proceed. The only exception is if a suit or other proceeding is initiated within 30 days of the parties’ formally 

entering into the contract.38

In PRP Holdings, we found the redevelopment agreement 

at issue was “formally entered into” when the redevelopment 

contract was signed by the Agency and the redevelopers,39 and 

we found the Agency’s declaratory judgment action challenging the validity of that agreement was not filed until 8 years 

later. Because the Agency had not filed suit to contest the 

38 Id. at 1020, 767 N.W.2d at 72 (emphasis supplied).

39 Id. at 1016, 767 N.W.2d at 70. See § 18-2103(15) (defining “[r]edevelopment contract” as “a contract entered into between an authority and a 

redeveloper for the redevelopment of an area in conformity with a redevelopment plan”).
- 566 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

validity of the redevelopment agreement “within 30 days after 

the contract was signed,” we found it was precluded from contesting the contract’s validity and we did not address the merits 

of the claim being raised, reasoning that “§ 18-2142.01(2) 

forecloses all of the Agency’s arguments.”40

In PRP Holdings, we considered the application of the 

conclusive presumption to an action brought after the 30-day 

time period in § 18-2142.01. The instant appeal requires us 

to consider how, if at all, the conclusive presumption applies 

in an action brought before the commencement of that 30-day 

time period.

3. Conclusive Presumption Ap

to Salem Grain’s Clai

No party disputes that Salem Grain’s suit falls within the 

category of actions governed by §§ 18-2129 and 18-2142.01. 

Salem Grain admits this action was brought to challenge the 

validity and enforceability of the redevelopment contract and 

the bonds issued pursuant thereto, and the record shows the 

necessary statutory language was recited in substance in both 

the redevelopment contract and the bond.

But Salem Grain argues the conclusive presumption 

should not apply to foreclose its claims, because its lawsuit 

was already on file when the 30-day window opened under 

§ 18-2142.01. Salem Grain asks us to find, summarized, that 

§ 18-2142.01 exempts from the conclusive presumption not 

only those actions brought during the 30-day period after the 

redevelopment contract is executed or the bond is authorized to 

be issued, but also those actions already pending at that point. 

We must reject this interpretation for two reasons.

[10] First, Salem Grain’s position would require that we 

construe the statutory scheme in a manner that effectively nullifies § 18-2129. But the Legislature did not repeal § 18-2129 

upon enacting § 18-2142.01 in 1997. And in 2018, when the 

Community Development Law was amended, both statutes 

40 PRP Holdings, supra note 12, 277 Neb. at 1019, 1020, 767 N.W.2d at 72.
- 567 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

were retained and updated.41 Under the statutory scheme, 

§ 18-2129 creates a conclusive presumption that applies to 

any action challenging the validity or enforceability of a bond 

reciting the statutory language—and this necessarily includes 

actions already pending at the time such a redevelopment bond 

is issued. In the absence of clear legislative intent, a construction of a statute will not be adopted which has the effect of 

nullifying or repealing another statute.42 We decline to interpret § 18-2142.01 in a manner that would effectively nullify 

§ 18-2129.

[11] Next, we must reject Salem’s Grain’s position because 

it advocates the judicial expansion of the narrow category of 

suits which the Legislature has chosen to exempt from the 

conclusive presumption. While there may be sound policy 

reasons for the Legislature to expand the 30-day exemption 

under § 18-2142.01 to include suits already pending when a 

redevelopment contract is formally entered into or a bond is 

authorized to be issued, it has not done so. And it is not within 

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

which is not there.43 We decline Salem Grain’s invitation to 

construe § 18-2142.01(2) in a way that expands the category of 

cases exempted from the conclusive presumption established 

by the Legislature.

We instead adhere to the construction of § 18-2142.01 

we articulated in PRP Holdings.

44 When a redevelopment 

contract or bond recites in substance the language set out in 

§ 18-2142.01(1) and (2), that statute establishes a specific window of time during which a party may challenge the validity 

or enforceability of the redevelopment contract or bond, unencumbered by the conclusive presumption under the Community 

41 See 2018 Neb. Laws, L.B. 874, §§ 23 and 30.

42 State ex rel. City of Elkhorn v. Haney, 252 Neb. 788, 566 N.W.2d 771 

(1997).

43 Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 

(2016).

44 PRP Holdings, supra note 12.
- 568 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

Development Law. That window opens on the date the redevelopment contract is formally entered into45 or the bond is 

authorized to be issued,46 and it closes 30 days later. And while 

the plain text of § 18-2142.01 does not apply the conclusive 

presumption to actions brought before this 30-day period, the 

conclusive presumption of § 18-2129 applies to all actions 

regardless of when they are brought.

When §§ 18-2129 and 18-2142.01 are construed together, 

the effect is that any suit, action, or proceeding brought outside 

the 30-day period established in § 18-2142.01 will be subject 

to the conclusive presumptions required by §§ 18-2129 and 

18-2142.01, assuming the action is one challenging the validity or enforceability of a redevelopment bond or contract and 

the bond or contract recites in substance the language required 

by the statutes. We emphasize that this construction is applied 

only because the Legislature chose to include both §§ 18-2129 

and 18-2142.01 in the Community Development Act and both 

statutes must, if possible, be given effect. The construction 

articulated here would not be required in the absence of either 

§ 18-2129 or § 18-2142.01.

No party raises it as an issue in the present case, but we 

pause here to point out a practical challenge presented by the 

statutory scheme. The Community Development Law does 

not require that a redevelopment contract be executed during a public meeting.47 Nor does it require that the public be 

given notice of either the date a redevelopment agreement is 

“formally entered into” or the date a bond is “authorized” to 

be issued for purposes of § 18-2142.01. Consequently, while 

parties to the redevelopment agreement and those who are 

involved in or closely following the redevelopment project 

may have personal knowledge of when the 30-day time period 

under § 18-2142.01 begins to run, others may not. This could 

45 § 18-2142.01(2).

46 § 18-2142.01(1).

47 See § 18-2119(1).
- 569 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

present a practical challenge for those wishing to challenge 

the validity or enforceability of a redevelopment contract or 

bond within the 30-day window under § 18-2142.01. But the 

proper role of this court is to declare the law as it finds it,48

not to redesign the statutory scheme. Consideration of whether 

the Community Development Law should include some form 

of public notice when a redevelopment agreement is executed 

or the issuance of a bond is authorized is a policy matter for 

the Legislature.

To summarize, when Salem Grain filed its suit on October 

24, 2012, challenging the validity and enforceability of the 

redevelopment contract and bond, no conclusive presumption 

yet applied under § 18-2129 because, at that point, the factual 

predicates of the statute had not been met. Specifically, no 

redevelopment contract had yet been executed, so no bond 

had yet been issued and it was not possible to determine 

whether the bond recited in substance the language required by 

§ 18-2129.

But later, when the redevelopment contract was executed 

and the bond was issued, reciting in substance the requisite 

language, the action became one to which the conclusive presumption under § 18-2129 applied as a matter of law. And 

assuming without deciding that an amended complaint brought 

within the 30-day period “after the lapse of thirty days after” 

the contract was executed and the bond was issued could trigger the narrow exemption created by § 18-2142.01, Salem 

Grain’s amended complaint was filed outside that time period. 

On these facts, the conclusive presumption under § 18-2129 

applied as a matter of law as soon as the factual predicates were 

met, and the narrow 30-day exemption under § 18-2142.01 was 

never triggered.

Thus, as a matter of law, the conclusive presumption mandated by § 18-2129 applies to Salem Grain’s suit and requires 

48 Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 907 

N.W.2d 1 (2018).
- 570 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

that the redevelopment project at issue “shall be conclusively deemed to have been planned, located, and carried 

out in accordance with the purposes and provisions of ” the 

Community Development Law.49 This conclusive presumption 

is nonrebuttable, and it forecloses all of Salem Grain’s alleged 

challenges to the validity and enforceability of the redevelopment contract and the bond issued pursuant thereto, under the 

Community Development Law.

Therefore, although our reasoning differs from that applied 

by the district court, we find no error in the court’s dismissal of 

Salem Grain’s first 10 causes of action. Moreover, because all 

of Salem Grain’s claims under the Community Development 

Act are foreclosed by the conclusive presumption, there could 

be no reversible error in the trial court’s discovery rulings on 

those claims or in its refusal to allow Salem Grain to further 

amend its complaint to present additional challenges to the 

validity and enforceability of the redevelopment agreement and 

the bond.

(a) Conclusive Presumption Is Not 

Affirmative Defense

Salem Grain equates the conclusive presumption to a statute 

of limitations and argues it should not apply here because it 

was not raised below as an affirmative defense. The defendants’ answers included the general allegation that the amended 

complaint failed to state a claim upon which relief could be 

granted, but Salem Grain is correct that no defendant alleged 

the claims were foreclosed by application of the conclusive 

presumption.

Nebraska’s pleading rules require that certain enumerated 

defenses “and any other matter constituting an avoidance or 

affirmative defense” must be pled in a defendant’s answer.50

But the conclusive presumptions of §§ 18-2129 and 18-2142.01 

49 § 18-2129. Accord § 18-2142.01(1) and (2).

50 Neb. Ct. R. Pldg. § 6-1108(c).
- 571 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

are neither affirmative defenses nor statutes of limitations, and 

the fact that they were neither alleged nor argued below does 

not preclude their application, as a matter of substantive law, 

to this case.

[12] An affirmative defense raises a new matter which, 

assuming the allegations in the petition or complaint to be true, 

constitutes a defense to the merits of a claim asserted in the 

petition.51 It generally avoids, rather than negates, the plaintiff’s prima facie case.52

[13] A statute of limitations is an affirmative defense,53 but 

“[a] statute providing a conclusive presumption is very different from a statute of limitations.”54 The purpose of a statute of 

limitations is to prevent recovery of stale claims.55 In contrast, 

a conclusive presumption is “a substantive rule of law directing that proof of certain basic facts conclusively proves an 

additional fact which cannot be rebutted.”56 The conclusive 

presumptions under §§ 18-2129 and 18-2142.01 are not procedural statutes of limitations.

Nor are they affirmative defenses. The statutory mandate 

that a redevelopment project “shall be conclusively deemed to 

have been planned, located, and carried out in accordance with 

the purpose and provisions of” the Community Development 

Law57 does not raise a new matter or constitute a defense to the 

merits of the claim. Rather, as explained previously, it is a substantive evidentiary rule that forecloses or negates any proof 

51 See, Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017); 

ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 

N.W.2d 156 (2017).

52 John P. Lenich, Nebraska Civil Procedure § 12:11 (2018).

53 See § 6-1108(c).

54 Davis, supra note 20, 193 P.3d at 89.

55 Becker v. Hobbs, 256 Neb. 432, 441, 590 N.W.2d 360, 366 (1999).

56 29 Am. Jur. 2d, supra note 17, § 201 at 215. Accord 1 Fishman, supra

note 17.

57 § 18-2129. Accord § 18-2142.01(1) and (2).
- 572 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

to the contrary. Stated differently, when the factual predicates 

are met, §§ 18-2129 and 18-2142.01 establish the legal standard courts must apply to actions brought outside the 30-day 

window challenging the validity or enforceability of redevelopment agreements and bonds.58 The fact that the conclusive presumption was neither alleged nor argued below does not affect 

its applicability as a matter of substantive law.

(b) Community Development Law 

and NOMA Claims

Finally, Salem Grain argues that even if the conclusive presumption applies to foreclose its claims under the Community 

Development Law, it should have no effect on Salem Grain’s 

NOMA claims related to the redevelopment project. It contends that regardless of the conclusive presumption under the 

Community Development Law, NOMA provides a separate 

legal basis for declaring void any resolution made or formal 

action taken by the Authority in violation of NOMA.

Salem Grain alleged multiple causes of action, including NOMA violations, to support its ultimate request that 

the redevelopment contract and any bonds issued pursuant 

thereto be declared null and void. The question becomes 

whether, in light of the conclusive presumption required by 

§§ 18-2129 and 18-2142.01, any violation of NOMA could 

affect the validity and enforceability of the redevelopment 

contract and bonds.

There is potential tension between the conclusive presumptions under the Community Development Law and the provisions under § 84-1414 for declaring void a resolution made or 

formal action taken by a public body in violation of NOMA. 

That is because the Community Development Law contains 

express provisions governing the public hearing and notice 

requirements for redevelopment plans59 and also makes clear 

58 PRP Holdings, supra note 12.

59 See, e.g., §§ 18-2109, 18-2115, 18-2115.01, and 18-2119 (Cum. Supp. 

2018).
- 573 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

that the Community Development Law “shall be full authority 

for the . . . exercise of the powers therein granted to a city or 

village and to such authority” and that “[i]nsofar as the provisions of [the Community Development Law] are inconsistent 

with the provisions of any other law . . . the provisions of [the 

Community Development Law] shall be controlling.”60

When the conclusive presumption of §§ 18-2129 or 

18-2142.01 applies, the “project shall be conclusively deemed 

to have been planned, located, and carried out in accordance with the purpose and provisions of” the Community 

Development Law.61 This presumption necessarily encompasses an authority’s compliance with the public hearing and 

notice provisions of the Community Development Law and 

prompts the question whether the public meeting requirements under NOMA, and in particular the provisions under 

§ 84-1414 for declaring void a resolution made or formal action 

taken by a public body in violation of NOMA, are inconsistent with the conclusive presumption under the Community 

Development Law.

This case, however, does not require that we resolve any 

possible tension between the Community Development Law 

and NOMA. That is because, as we explain below, no NOMA 

violation has been proved.

An appellate court reviews actions for relief under NOMA 

in equity because the relief sought is in the nature of a declaration that action taken in violation of the act is void or 

voidable.62 On appeal from an equity action, an appellate court 

tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion 

independent of the conclusion reached by the trial court.63

But when credible evidence is in conflict on material issues 

60 § 18-2144.

61 § 18-2129. Accord § 18-2142.01(1) and (2).

62 Schauer, supra note 9.

63 Id.
- 574 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

of fact, we consider and may give weight to the fact the trial 

court observed the witnesses and accepted one version of the 

facts over another.64

Salem Grain alleged that two events—the August 15, 2012, 

dinner and the November 9 email communications—were 

“meetings” of the Authority for purposes of NOMA. And 

Salem Grain argued that because NOMA requirements were 

not followed with respect to such meetings, any action taken 

by the Authority was invalidated pursuant to § 84-1414. The 

Authority denied that either event was a meeting governed by 

NOMA, and the district court agreed. After a de novo review 

of the record, so do we.

(i) Dinner

NOMA defines a “[m]eeting” as “all regular, special, or 

called meetings, formal or informal, of any public body for the 

purposes of briefing, discussion of public business, formation 

of tentative policy, or the taking of any action of the public 

body.”65 NOMA also provides, however, that it

does not apply to chance meetings or to attendance at 

or travel to conventions or workshops of members of 

a public body at which there is no meeting of the body 

then intentionally convened, if there is no vote or other 

action taken regarding any matter over which the public body has supervision, control, jurisdiction, or advisory power.66

In Schauer v. Grooms,

67 parties seeking to challenge the 

annexation of land for a redevelopment project involving an 

ethanol plant claimed that a dinner and walking tour of another 

ethanol facility constituted a public meeting of the city council under NOMA. The dinner and tour were hosted by the 

64 Id.

65 § 84-1409(2).

66 § 84-1410(5).

67 Schauer, supra note 9.
- 575 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

economic redevelopment board and attended by the mayor, 

three members of the city council, and approximately 40 other 

people. The city council members testified that during the dinner, they “did not discuss or receive information associated 

with the redevelopment plan and contract” and did not “take 

any formal action on behalf of the city council.”68 We found the 

plaintiffs had not presented any evidence the dinner was “‘for 

the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public 

body’”69 and thus found no violation of NOMA.

Here, witnesses testified that Consolidated Grain gave a 

presentation during the dinner, but no witness could recall 

specifics about the content of that presentation. The quorum of Authority members who attended the dinner testified 

that no business was discussed and that they did not rely on 

any information from the dinner to support their subsequent 

decisions during public meetings to approve the redevelopment project.

On this record, we agree there is insufficient evidence 

that the dinner involved any “briefing, discussion of public 

business, formation of tentative policy, or the taking of any 

action”70 by the Authority. The dinner did not constitute a 

meeting under NOMA.

(ii) Email

For similar reasons, we agree with the district court that the 

email communications were not a “[m]eeting” as defined in 

§ 84-1409(2), as there was no purpose to hold a briefing session, discuss public business, form tentative policy, or take any 

action of the public body. To the contrary, the record shows 

the purpose of the email communications was to let Authority 

members know Salem Grain had filed suit and advise that 

68 Id. at 447, 786 N.W.2d at 926.

69 Id., quoting § 84-1409(2).

70 § 84-1409(2).
- 576 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

the previously approved contract was being amended to disclose the litigation and to include additional indemnification 

language recommended by counsel. The chairman was not 

seeking permission to take these actions, because the Authority 

already had authorized him to “take any and all actions, and 

to execute any and all documents,” deemed necessary to conclude the transaction.

Section 84-1410(4) provides in part, “No closed session, 

informal meeting, chance meeting, social gathering, email, 

fax, or other electronic communication shall be used for the 

purpose of circumventing the requirements of the act.” Salem 

Grain argues the emails were used by the Authority to circumvent the requirements of NOMA. But the chairman’s email 

stated that if any member wanted to “discuss and/or act upon 

these matters,” the chairman would “schedule a special meeting for that purpose.”

Properly understood, the chairman’s email demonstrates it 

was sent not to circumvent the requirements of NOMA, but, 

rather, to adhere to them. The district court did not err in finding no NOMA violation with respect to the emails.

4. Evidence of Addit

NOMA Viola

[14-16] Lastly, Salem Grain assigns error to the district 

court’s exclusion of certain evidence offered at trial and 

objected to as irrelevant. In proceedings where the Nebraska 

Evidence Rules apply, the admissibility of evidence is controlled by these rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility.71 The exercise of judicial discretion is implicit in 

determining the relevance of evidence, and we will not reverse 

a trial court’s decision regarding relevance absent an abuse 

of discretion.72 A judicial abuse of discretion exists when 

71 Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

72 Id.
- 577 -

Nebraska Supreme Court Advance S

302 Nebraska Report

SALEM GRAIN CO. v. CITY OF FALLS CITY

Cite as 302 Neb. 548

the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying 

just results in matters submitted for disposition.73

[17] The evidence excluded by the trial court pertained to 

NOMA violations which had not been alleged in the operative 

amended complaint. Relevant evidence means evidence having 

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence.74

The NOMA violations alleged in Salem Grain’s amended 

complaint focused exclusively on the August 15, 2012, dinner and the November 9 email exchange. Because only those 

two alleged NOMA violations were at issue, and because the 

proffered evidence of other possible NOMA violations had 

no tendency to make any fact of consequence to those two 

violations any more or less probable, the evidence had no 

relevance and the trial court did not abuse its discretion in 

excluding it.

V. CONCLUSION

The conclusive presumptions of §§ 18-2129 and 18-2142.01 

present a formidable hurdle to those seeking to challenge the 

validity or enforceability of a redevelopment contract or bond 

under the Community Development Law. We find that all of 

Salem Grain’s claims challenging the procedure by which 

the redevelopment project was adopted and the validity and 

enforceability of the redevelopment agreement and bond are 

conclusively foreclosed by §§ 18-2129 and 18-2142.01. And 

after a de novo review of the NOMA claims, we agree with the 

district court that no open meeting violation occurred. Finding 

all of Salem Grain’s assignments of error to be without merit, 

we affirm the judgment of the district court.

Affirmed

73 Id.

74 Id.