Heimes v. Arens

Facts: The parties to this appeal have been involved in litigation for more than a decade with respect to drainage issues affecting their neighboring real properties separated by a particular county road in Cedar County. In 2011, the Heimeses filed a complaint, alleging that the Arenses had constructed an earthen dike on the edge of their property that prevented the natural flow of water from the Heimeses’ property onto the Arenses’ property and caused flooding and damage to the Heimeses’ property. The Heimeses alleged claims of nuisance and trespass, and they requested an injunction and damages.

The parties mediated their disputes and entered into a mediation settlement agreement in 2012. In 2013, the trial court approved the agreement and ordered the parties to comply with its terms. The agreement provided that an engineer would conduct a study and make recommendations for improving drainage on the properties and that the parties would comply with and implement those recommendations. In August 2014, the court overruled certain objections made by the parties to the agreement requirements, determined that the agreement was clear and unambiguous, and ordered the parties to comply with the terms of the agreement and to construct improvements as recommended by the engineer in his report.

In 2015, the parties filed separate notices of dispute in implementing the engineer’s plan and demands for further mediation. The trial court overruled the notices of dispute, and the Heimeses appealed. The Nebraska Court of Appeals dismissed that appeal for lack of jurisdiction because the 2015 order was not a final appealable order; rather, it was a continuation of the August 2014 order.

In 2017, the Heimeses filed a motion to compel performance, asking the trial court to enter an order compelling the Arenses to comply with the August 2014 order and execute certain easements, which the Heimeses claimed were required by engineer’s recommendations and would allow for completion of the plan. In January 2017, the court denied the motion to compel without further elaboration.

In 2020, the Heimeses filed the application for order to show cause at issue in the present appeal. They alleged that the Arenses refused to execute easement documents required by the engineer’s report and that this refusal violated the court’s August 2014 order. The Heimeses asked the court to enter an order directing the Arenses to show cause why they should not be held in contempt for violating the August 2014 order and to order the Arenses to sign appropriate easement documents. The Arenses filed an objection, asserting that the issue raised in the application had been previously considered and ruled upon by the court in its January 2017 order. The Arenses asked the court to deny the show cause application and to enter an order of dismissal with prejudice.

Following an evidentiary hearing, trial court entered an order dismissing the Heimeses’ application for order to show cause. The court noted that the Heimeses’ application sought to enforce the engineer’s recommendation, attached to the court’s August 2014 order, that the Heimeses be granted an easement upon the Arenses’ real property. The court observed that the same issue had been presented in 2017 when it denied the Heimeses’ motion to compel. The court found nothing in the current application or new evidence offered in 2020 to convince it to alter its previous ruling. The court also granted the Arenses’ motion to dismiss with prejudice, again relying on its January 2017 order.

The parties present jurisdictional arguments on appeal requiring this court to determine whether this appeal is an impermissible collateral attack on the trial court’s January 2017 order and the preclusive effect, if any, of the January 2017 order.