Kramer v. MiskellKramer v. Miskell
Designating their petition as one both in error and in equity, the plaintiffs-appellants, Larry Kramer, Charles Venditte, and Ron Briscoe, in their official capacities as members of the board *663 of trustees of the City of Omaha Police and Firemen’s Retirement System, and Tom Moen and Mark Lloyd, as membеrs and beneficiaries of the system, on their own behalf and on behalf of others similarly situated, seek a declaration that the defendant-appellee Mary Robbins, a member and beneficiary of the system, was wrongly awarded disability pension benefits through the improvident votes of the defеndants-appellees William Miskell, George Ireland, Lee Terry, and Ray Hasiak, acting in their official capacities as the other members of the board of trustees. The plaintiffs seek as well to temporarily and permanently enjoin the payment of any benefits to Robbins and also seek an order requiring the system to reconsider the matter in a proceeding free of conflicting interests. Robbins moved to strike the petition in its entirety on the ground that it constituted an impermissible collateral attack on the decision of the board of trustees. The trial judge sustained thе motion and, after the plaintiffs elected to stand thereon, dismissed the pleading. Asserting that the trial judge erred in (1) sustaining Robbins’ motion, (2) dismissing the petition, and (3) prejudging other aspects of the case, the plaintiffs appealed to the Nebraska Court of Appeals. We, on our own motion, in order to regulate the caseloads of the two courts, removed the matter to this court. We now reverse, and remand for further proceedings.
Whether a motion to strike a petition should be sustained and whether a petition should be dismissed clearly are questions of law. See
State ex rel. Goodnow
v.
O’Phelan,
According to the petition, the system, acting by and through its board of trustees, granted disability pension benefits to Robbins, a firefighter employed by the City of Omaha, the remaining defendant-appellee. The defendant trustees voted to grant the benefits, the plaintiff trustees to deny it.
*664 The petition advances four bases for relief. The first rests on the claim that the award of disability pension benefits was contrary to the rules of the system because the back injury Robbins claims to have suffered did not arise out of and in the course of her employment with the city. The second rests on thе claim that in some unspecified way the defendant trustees violated their fiduciary duties to the system. The third rests on the claim that the defendant trusteеs violated their fiduciary duties through a conflict of interest created by holding positions with the city, which has a financial interest adverse to that оf the system because of a civil rights lawsuit pending between Robbins and her supervisor said to arise out of the event resulting in Robbins’ claim for disability benefits. Thе fourth rests on the claim that the defendant trustees violated their fiduciary duty by accepting legal advice from the conflict-tainted attornеys for the city.
In addressing the issues presented in the first assignment of error, the claim that the trial judge erred in sustaining Robbins’ motion to strike the petition, it must be recalled as an initial matter that in this state, pleading practice is controlled by statute,
Lammers Land & Cattle Co. v. Hans,
The only pleadings generally allowed are (1) the рetition by the plaintiff, (2) the answer or demurrer by the defendant, (3) the demurrer or reply by the plaintiff, and (4) the demurrer to the reply by the defendant.
If redundant, scandalоus or irrelevant matter' be inserted in any pleading, it may be stricken out on motion of the party prejudiced thereby; and when the allegations оf a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the cоurt may require the pleading to be made definite and certain by amendment.
Robbins’ motion does not address any redundant, scandalous, or irrelevant allegations in the petition, nor dоes it seek to have the petition made more definite and certain. Thus, the motion does not fall within the purview of
Robbins’ contention that the plaintiffs’ petition presents an impermissible collateral attack on the board’s decision is properly raisеd by a demurrer, not a motion to strike. See
The second assignment of error сalls into question the trial judge’s dismissal of the dual-faceted petition. We are at a loss to understand how striking an entire petition differs from dismissing the action. Can an action exist if there is no petition which initiates it? Obviously not; indeed, to ask that question is to illustrate the folly of fashioning one’s own system of pleading.
In reality, the issues argued in connection with this assignment of error in essence concern whether the petition properly pleads a basis for relief in error, whether it properly pleads one or more bases for relief in equity, and whether all such bases may be pled in a single petition by some or all of the plaintiffs against some or all of the defendants. Having determined that the trial judge erred in striking the petition, those issues are not properly before us at this time.
Since it is not the office of this court to render advisory opinions,
State
v.
McCormick,
The claim in the third and final assignmеnt of error, that the trial judge erred as well by prejudging other aspects of the case, stems from the view the trial judge is said to have expressed *666 concerning what might constitute the appropriate record in the case and the view she expressed as to what would be the appropriate ruling in the pending demurrer of the city. The plaintiffs further urge that by virtue of said prejudgments, the trial judge should be disqualified from further participation in this litigation.
The issues presented by this assignment of error are also premature. As there have been no proceedings before the triаl judge since she dismissed the petition, there has been neither a need nor an opportunity to first present to the trial judge the question of whethеr she should recuse herself. See
Jim’s, Inc. v. Willman,
The judgment of the trial judge is reversed and the cause remanded for further proceedings.
Reversed and remanded for FURTHER PROCEEDINGS.