NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MOORE, Judge.
INTRODUCTION
Michael Sodoro appeals the order of the district court for Douglas County granting the motion to dismiss filed by the defendants, the Board of Equalization of the City of Omaha (Board) and the City of Omaha (City). We reverse the decision of the district court, as explained more fully below. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
STATEMENT OF FACTS
The underlying facts of this case are not in dispute, and the applicable law is generally set forth in chapter 14 of the Nebraska Revised Statutes, which pertains to cities of the metropolitan class. Sodoro owns property located in Omaha, Nebraska, that was the subject of a special assessment and tax levy of over $13,000 for the cost of some street improvements. Sodoro protested the assessment at a meeting of the Omaha City Council sitting as the Board in July 2009. A vote was taken at a meeting of the Omaha City Council on February 9, 2010, to retain the special assessment on Sodoro's property.
On March 9, 2010, Sodoro filed a petition in error in the district court for Douglas County, naming the Board as the sole defendant in the case, and asking that the court reverse the judgment of the Omaha City Council. Sodoro claimed that the Omaha City Council, sitting as the Board, erred in failing to grant Sodoro's request for a reduction or forgiveness of the special assessment and tax levy on his property.
On August 9, 2010, Sodoro filed a motion for leave to file an amended petition. He stated that he made his request in order to join the City as a necessary party. His request was granted, and the amended petition was filed on August 19. On September 9, the Board and the City filed a motion to dismiss on the grounds that the district court lacked subject matter jurisdiction, that the pleading failed to state a claim upon which relief can be granted, and that Sodoro had failed to join a necessary party. In an order filed October 5, the district court sustained the motion to dismiss on the ground of lack of subject matter jurisdiction. The court did not further elaborate on its reasons for dismissal. Sodoro appealed to this court on November 2.
ASSIGNMENT OF ERROR
Sodoro asserts that the district court erred in granting the motion to dismiss.
STANDARD OF REVIEW
The presence of necessary parties to a suit is a jurisdictional matter that cannot be waived by the parties; it is the duty of the plaintiff to join all persons who have or claim any interest that would be affected by the judgment. Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350 (2008). When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court. Id.
ANALYSIS
The City is a city of the metropolitan class. See Neb. Rev. Stat. § 14-101 (Reissue 2007). An appeal from a special assessment by a city of the metropolitan class is conducted by petition in error. Jackson v. Board of Equal. of City of Omaha, 10 Neb.App. 330, 630 N.W.2d 680 (2001). Neb. Rev. Stat. § 25-1931 (Reissue 2008) requires generally that error proceedings be commenced within 30 days after the rendition of the judgment or making of the final order complained of. There is no challenge in the instant case as to the timeliness of Sodoro's March 9, 2010, petition in error as to the Board. Rather, the jurisdictional question is whether his amended petition, filed August 19, was adequate or timely as to the added defendant and necessary party, the City.
The Board and the City observe that Neb. Rev. Stat. § 14-813 (Cum. Supp. 2010), which governs appeals from a special assessment by a metropolitan class city, also provides that an appeal must be filed within 30 days and argue that Sodoro's failure to file his appeal within 30 days as to both necessary parties deprived the district court of subject matter jurisdiction. They note that no one contests the fact that the City was a necessary party and that the joining of necessary parties to a suit is jurisdictional. See, e.g., Pestal v. Malone, supra.
Sodoro directs our attention to § 14-813, which provides that a petition is to be filed in the district court "as in the commencement of an action within 30 days after the date of the order or award appealed from." He argues that this language adopts the general law of commencing actions and that therefore amendment of the petition is governed by Neb. Rev. Stat. § 25-201.02 (Reissue 2008), which provides in relevant part:
If the amendment [of a pleading] changes the party or the name of the party against whom a claim is asserted, the amendment relates back to the date of the original pleading if (a) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, and (b) within the period provided for commencing an action the party against whom the claim is asserted by the amended pleading (i) received notice of the action such that the party will not be prejudiced in maintaining a defense on the merits and (ii) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
A factual situation similar to that in the instant case was addressed in Zyburo v. Board of Education, 239 Neb. 162, 474 N.W.2d 671 (1991), in which the Nebraska Supreme Court addressed the issue of substituting parties and relation back to the original action. The plaintiff had filed a petition in error against a school board, claiming unlawful termination of his employment. The petition against the school board was timely filed within the required 30 days of the board's order discharging the plaintiff, but the amended petition against the school district was not timely filed. The plaintiff claimed the substitution of the parties did not render the amended petition untimely, because the original petition naming the board gave the district notice of the suit within the 30-day limitation period.
The Nebraska Supreme Court cited Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L. Ed. 2d 18 (1986) (later statutorily overruled by Fed. R. Civ. P. 15(c)), which held that an amendment substituting parties relates back to the original complaint when a defendant has notice of the first complaint prior to the time bar. The Schiavone Court stated that "[t]imely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party." 477 U.S. at 29. The U.S. Supreme Court said of the then-applicable federal rule 15(c):
Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
477 U.S. at 29.
In 2002, the Nebraska Legislature passed § 25-201.02, the provisions of which are quite similar in material and relevant respects to the then-current federal rule 15(c). The Zyburo court said that "the keystone determining whether a change in party defendant relates back to the original pleading is whether the substituted party had notice of the suit within the period of limitations." 239 Neb. at 169, 474 N.W.2d at 676.
In the instant case, the City clearly had notice of Sodoro's action despite his failure to name it as a party. Neb. Rev. Stat. § 14-547 (Reissue 2007) requires a city council to sit as a board of equalization in cases when special assessments are authorized. Thus, the filing of Sodoro's amended petition fits squarely within the provisions of § 25-201.02 because (1) the claim asserted in the amended petition arose out of the same conduct, transaction, or occurrence set forth in his original petition and (2) within the period for commencing Sodoro's action, the City (a) received notice of the action such that it would not be prejudiced in maintaining a defense on the merits and (b) knew or should have known that, but for Sodoro's mistake in naming it as a party, the action would have been brought against it. Under the teaching of Zyburo v. Board of Education, supra, Sodoro's failure to name the City as a necessary party was not fatal to his action as his amendment of his petition in error to add the City as a necessary party would be permitted to relate back to the original filing.
At least for purposes of this case, the Board and the City were one and the same, resulting in notice to the City when Sodoro filed his initial petition in error. The district court's order of dismissal is reversed, and the cause is remanded for further proceedings consistent with this opinion.
CONCLUSION
The district court erroneously dismissed Sodoro's amended petition in error for lack of jurisdiction. The order of dismissal is reversed.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
