Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/10/2017 09:11 AM CST




                                                        - 795 -
                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                        FREDERICK v. CITY OF FALLS CITY
                                               Cite as 295 Neb. 795




                               David Leon Frederick, appellant, v. City of
                               Falls City, a city and political subdivision
                                of the State of Nebraska, and Falls City
                                   Economic Development and Growth
                                        Enterprise, Inc., appellees.
                                                    ___ N.W.2d ___

                                        Filed February 10, 2017.   No. S-16-236.

                1.	 Pleadings: Judgments: Appeal and Error. An appellate court reviews
                    the denial of a motion to reopen a case for an abuse of discretion.
                2.	 Trial: Evidence. Among factors traditionally considered in determin-
                    ing whether to allow a party to reopen a case to introduce additional
                    evidence are (1) the reason for the failure to introduce the evidence, i.e.,
                    counsel’s inadvertence, a party’s calculated risk or tactic, or the court’s
                    mistake; (2) the admissibility and materiality of the new evidence to
                    the proponent’s case; (3) the diligence exercised by the requesting
                    party in producing the evidence before his or her case closed; (4) the
                    time or stage of the proceedings at which the motion is made; and (5)
                    whether the new evidence would unfairly surprise or unfairly prejudice
                    the opponent.

                 Appeal from the District Court for Richardson County:
               Daniel E. Bryan, Jr., Judge. Affirmed.

                Stephen D. Mossman, J.L. Spray, and Ryan K. McIntosh, of
               Mattson Ricketts Law Firm, for appellant.

                 Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.C., for
               appellee City of Falls City.
                             - 796 -
           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                FREDERICK v. CITY OF FALLS CITY
                       Cite as 295 Neb. 795

  Bonnie M. Boryca, of Erickson & Sederstrom, P.C., for
appellee Falls City Economic Development and Growth
Enterprise, Inc.

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.

  K elch, J.
                     NATURE OF CASE
   After David Leon Frederick learned that the City of Falls
City, Nebraska, did not produce all requested records in its
possession pursuant to his public records request, Frederick
filed a motion to reopen his case against Falls City and the
Falls City Economic Development and Growth Enterprise, Inc.
(EDGE). In that case, Frederick unsuccessfully sought a writ
of mandamus compelling the parties to produce documents in
EDGE’s possession. Frederick’s motion to reopen the case was
overruled, and Frederick appeals.

                            FACTS
                         Background
   Frederick is a Nebraska citizen and a resident of
Richardson County, Nebraska. EDGE is a Nebraska nonprofit
corporation. EDGE’s articles of incorporation state that its
goal is to “encourag[e] economic development and growth
and improv[e] business conditions” in Falls City and sur-
rounding areas. EDGE performs services for Falls City and
Richardson County including, among other things, hosting,
communicating with, and negotiating with business develop-
ment prospects.
   In April 2012, a national grain processing and transporta-
tion company contacted EDGE about the proposed develop-
ment of a large grain terminal and transportation facility on a
site in Richardson County. This site is located near an existing
grain elevator co-owned by Frederick.
                                     - 797 -
                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                      FREDERICK v. CITY OF FALLS CITY
                             Cite as 295 Neb. 795

   On August 29, 2012, pursuant to Neb. Rev. Stat. § 84-712
(Cum. Supp. 2012), Frederick sent a public records request to
the Falls City administrator. Frederick requested all records
in the physical custody of Falls City and EDGE relating to
the processing and transportation company. The administra-
tor provided records in the physical custody of Falls City
and sent Frederick a letter stating, among other things, that
Frederick was welcome to review the records at the city hall.
The administrator also sent a copy of Frederick’s request to
EDGE’s executive director. The director refused to provide
the requested records to Frederick or Falls City, alleging that
EDGE was not a public entity and that its records were not
public records.
   In January 2015, this court agreed with EDGE, finding that
EDGE was not the “functional equivalent of a city agency,
branch, or department” and that thus, the requested records
were not “‘public records’” within the meaning of Neb. Rev.
Stat. § 84-712.01(1) (Reissue 2014).1 We therefore reversed
the district court’s order, which had compelled EDGE to pro-
duce the requested records. Additional facts relevant to that
appeal can be found in our opinion in Frederick v. City of
Falls City.2

              Facts R elevant to Current A ppeal
   On December 23, 2015, Frederick filed a motion pursuant
to Neb. Rev. Stat. § 25-2001 (Reissue 2016), which permits a
party to vacate or modify a judgment of the district court or,
in the alternative, under the court’s equity powers, request to
reopen the case against Falls City and EDGE. In his motion,
Frederick asserted that Falls City did not produce all the docu-
ments in its possession and that if all requested documents

 1	
      Frederick v. City of Falls City, 289 Neb. 864, 878, 857 N.W.2d 569, 579
      (2015).
 2	
      Federick v. City of Falls City, supra note 1.
                                    - 798 -
                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                      FREDERICK v. CITY OF FALLS CITY
                             Cite as 295 Neb. 795

had been produced, Frederick could have taken certain actions
to protect his interests.
   One of the documents not produced was the document
that was posted to give notice of a meeting of a Falls City
community redevelopment authority committee. Pursuant to
Frederick’s records request, Falls City had supplied the meet-
ing’s minutes. The minutes indicated that a copy of the notice
was attached. However, Frederick did not receive the notice
pursuant to the August 2012 records request. It was not until
Frederick was involved in another Richardson County District
Court case against Falls City, No. CI12-206, that he received
a copy of the notice. According to the notice, the meeting was
to occur at 12 p.m. But, according to the minutes, the meeting
occurred at 4 p.m. In Frederick’s motion to reopen, he asserted
that the meeting was not a properly noticed meeting under
Neb. Rev. Stat. § 84-1411 (Cum. Supp. 2010) and that if the
notice had been produced as requested, Frederick could have
acted on Open Meetings Act violations.
   Falls City and EDGE filed objections to Frederick’s motion
to reopen. The matter came on for hearing on January 26, 2016,
and the district court denied Frederick’s motion. Frederick
timely appeals.

                  ASSIGNMENTS OF ERROR
   Frederick assigns, combined and restated, that the district
court erred in dismissing EDGE from the proceedings and that
the district court abused its discretion in overruling Frederick’s
motion to reopen.

                  STANDARD OF REVIEW
   [1] An appellate court reviews the denial of a motion to
reopen a case for an abuse of discretion.3

 3	
      See, Corman v. Musselman, 232 Neb. 159, 439 N.W.2d 781 (1989); Myhra
      v. Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (2008); Jessen v. DeFord, 3
      Neb. App. 940, 536 N.W.2d 68 (1995).
                                      - 799 -
                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                       FREDERICK v. CITY OF FALLS CITY
                              Cite as 295 Neb. 795

                           ANALYSIS
   [2] The primary issue in this case is whether the district
court abused its discretion in overruling Frederick’s motion
to reopen his case against Falls City and EDGE. Among fac-
tors traditionally considered in determining whether to allow
a party to reopen a case to introduce additional evidence are
(1) the reason for the failure to introduce the evidence, i.e.,
counsel’s inadvertence, a party’s calculated risk or tactic, or
the court’s mistake; (2) the admissibility and materiality of
the new evidence to the proponent’s case; (3) the diligence
exercised by the requesting party in producing the evidence
before his or her case closed; (4) the time or stage of the pro-
ceedings at which the motion is made; and (5) whether the
new evidence would unfairly surprise or unfairly prejudice
the opponent.4
   As for Frederick’s failure to introduce evidence, Frederick
claims he “had no way of knowing that documents were with-
held, or otherwise not produced.”5 However, as noted above,
the meeting minutes that Frederick received from his original
records request indicated that certain documents were to be
attached. So, the fact that certain documents were not attached
or produced was apparent in September 2012, when the case
was still open. Moreover, the Falls City administrator, in his
letter to Frederick, invited Frederick to review Falls City’s
records at the city hall; however, Frederick chose not to do
so. Accordingly, the first and third factors do not weigh in
Frederick’s favor.
   Perhaps the most dispositive factor in this case, though,
is the second factor—the admissibility and materiality of the
new evidence to the proponent’s case. With respect to mate-
riality, “[t]he evidence must substantially affect the outcome

 4	
      State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015); Jessen v. DeFord,
      supra note 3 (citing 75 Am. Jur. 2d Trial § 298 (1991)).
 5	
      Brief for appellant at 7.
                                      - 800 -
                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                       FREDERICK v. CITY OF FALLS CITY
                              Cite as 295 Neb. 795

of the case, not only the merits of the action, but the trial
court’s decision as well.”6 Here, Frederick seeks to reopen a
case in which he sought a writ of mandamus requiring Falls
City and EDGE to “[p]rovide to Frederick the requested docu-
ments in the physical custody of EDGE . . . .” Upon reopening
the case, Frederick seeks to introduce documents that were
in Falls City’s possession and that Falls City failed to pro-
duce. However, Frederick has failed to establish how these
recently discovered documents would have any bearing on the
issue of whether records within EDGE’s possession should
be produced.
   In Frederick, we concluded that the records in EDGE’s
possession were not required to be produced because the
records were not “‘public records’” within the meaning of
§ 84-712.01.7 We reached that conclusion by examining the
relationship between Falls City and EDGE and determining
that EDGE is “not the functional equivalent of an agency,
branch, or department of Falls City.”8 The documents pro-
duced by an unrelated organization, which Frederick seeks to
admit, do not relate to Falls City’s relationship with EDGE
and do not affect EDGE’s status as a private entity. Therefore,
the new evidence is not material to the case that Frederick
seeks to reopen. Frederick claims, “Failure to reopen the case
leaves Frederick without any remedy. The statute of limita-
tions has passed on criminal prosecution of the violations.”9
However, the only specific relief requested in the operative
complaint (other than a request for attorney fees) was for a
writ of mandamus requiring Falls City and EDGE to provide
requested documents in the physical custody of EDGE. And,

 6	
      75 Am. Jur. 2d Trial § 299 at 534 (2007).
 7	
      Frederick v. City of Falls City, supra note 1, 289 Neb. at 878, 857 N.W.2d
      at 579.
 8	
      Id.
 9	
      Brief for appellant at 9.
                             - 801 -
           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                FREDERICK v. CITY OF FALLS CITY
                       Cite as 295 Neb. 795

as discussed above, those documents are not required to be
released. Therefore, reopening the case would not lead to any
remedy for Frederick.
   Based on our review of the factors above, we conclude
that the district court did not abuse its discretion in overrul-
ing Frederick’s motion to reopen the case. Accordingly, we
do not reach Frederick’s remaining assignment of error, which
was that the district court erred in dismissing EDGE from fur-
ther proceedings.

                        CONCLUSION
   We determine that the district court did not abuse its dis-
cretion in overruling Frederick’s motion to reopen his case
against Falls City and EDGE. We therefore affirm.
                                                  A ffirmed.
