Hilt v. Douglas Cty. Bd. of Equal. , 30 Neb. Ct. App. 425 ( 2021 )

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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
HILT v. DOUGLAS CTY. BD. OF EQUAL.
Cite as 30 Neb. App. 425Thomas L. Hilt, Trustee of the Thomas L.
Hilt Revocable Trust, appellant,
v. Douglas County Board of
Equalization, appellee.
___ N.W.2d ___
Filed December 7, 2021. No. A-21-253.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion indepen-
dent of the lower court’s decision.
2. Taxation: Judgments: Appeal and Error. Appellate courts review
decisions rendered by the Tax Equalization and Review Commission for
errors appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Administrative Law: Judgments: Words and Phrases. Agency action
is arbitrary, capricious, and unreasonable if it is taken in disregard of the
facts or circumstances of the case, without some basis which would lead
a reasonable and honest person to the same conclusion.
5. Taxation: Appeal and Error. Questions of law arising during appel-
late review of Tax Equalization and Review Commission decisions are
reviewed de novo.
6. Administrative Law: Judgments. Whether an agency decision con-
forms to the law is by definition a question of law.
7. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
8. Taxes: Jurisdiction: Service of Process: Time: Appeal and Error.
Service of summons within 30 days of the filing of the petition for
review of the Tax Equalization and Review Commission’s decision is
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HILT v. DOUGLAS CTY. BD. OF EQUAL.
Cite as 30 Neb. App. 425necessary to confer subject matter jurisdiction upon the Nebraska Court
of Appeals.
9. Administrative Law: Taxation. A county board of equalization is a
county agency.
10. Taxation: Jurisdiction: Statutes. County boards of equalization can
exercise only such powers as are expressly granted to them by statute,
and statutes conferring power and authority upon a county board of
equalization are strictly construed.
11. Administrative Law: Service of Process: Words and Phrases. Neb.
Rev. Stat. § 25-510.02 (Reissue 2016) provides that the plain meaning of
the phrase “may be served,” when viewed in the context of the service
statutes, modifies the method of acceptable service, not the entity to
be served.
Appeal from the Tax Equalization and Review Commission.
Appeal dismissed.
Douglas W. Ruge for appellant.
Jennifer D. Chrystal-Clark, Deputy Douglas County Attorney,
for appellee.
Pirtle, Chief Judge, and Moore and Welch, Judges.
Moore, Judge.
INTRODUCTION
Thomas L. Hilt, trustee of the Thomas L. Hilt Revocable
Trust, appeals from an order of the Tax Equalization and
Review Commission (TERC) affirming the decision of the
Douglas County Board of Equalization (Board) regarding the
taxable value of certain residential property owned by Hilt for
the tax years 2017, 2018, and 2019. This court lacks subject
matter jurisdiction over Hilt’s petition for review, because
he failed to have summons served upon the county clerk as
required by Neb. Rev. Stat. § 25-510.02(2) (Reissue 2016).
Accordingly, we dismiss Hilt’s petition for review.
STATEMENT OF FACTS
Hilt owns a large residential parcel located in the Indian
Creek Estates subdivision in Elkhorn, Douglas County,
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Cite as 30 Neb. App. 425Nebraska. The parcel is improved with a 7,868-square-foot,
ranch-style residence built in 2009 for approximately
$1,057,000. Hilt uses the property extensively for educational,
business, and entertainment purposes, hosting 1,000 to 1,500
guests annually at the residence.
The Douglas County assessor determined that the value of
the property was $1,531,000 for tax year 2017, $1,425,000
for tax year 2018, and $1,425,000 for tax year 2019. Hilt pro-
tested the assessment to the Board and requested a valuation
of $1,000,000 for 2017, $1,236,000 for 2018, and $997,500
for 2019. The Board determined that the taxable value was
$1,425,000 for all three tax years.
Hilt appealed the Board’s decision to TERC, and an evi-
dentiary hearing was held. At the hearing, TERC received
documentary evidence offered by both parties and heard tes-
timony from Hilt and from a real estate specialist and special
evaluation appraiser employed by the Douglas County asses-
sor’s office.
On March 1, 2021, TERC issued its decision and order
affirming the Board’s decision. TERC concluded that Hilt had
not provided competent evidence to rebut the presumption
that the Board had faithfully performed its duties and had suf-
ficient competent evidence to make its determinations. TERC
also concluded that Hilt failed to present clear and convinc-
ing evidence that the Board’s valuation was unreasonable
or arbitrary.
Pursuant to Neb. Rev. Stat. § 77-5019 (Reissue 2018), Hilt
filed his petition for review with this court on March 25,
2021. On that same date, Hilt filed a praecipe for summons,
asking the sheriff to issue a summons for personal service
to: “Douglas County Board of Equalization[,] 1819 Farnam
Street H-08[,] Omaha, Nebraska 68183.” The return of service
shows that service was made on March 29 on Sharon Bourke,
an administrative assistant, at the Board. In its response to
Hilt’s petition, the Board asserted that Hilt had failed to have
summons served upon the Board within the requisite 30-day
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Cite as 30 Neb. App. 425time limit, because it was not served with the county clerk.
We directed the parties to address this jurisdictional issue in
their briefs.
In addition to addressing the issue in Hilt’s appellate brief,
Hilt’s attorney filed an affidavit with this court, stating that
he was familiar with the principal place of business for the
Douglas County clerk and had spoken with personnel in that
office (the clerk’s office); that the principal place of business
for the Board and for the Douglas County clerk were the same
(“1819 Farnam Street, H-08, Omaha, NE 68183”); and that the
summons was served at this address. He also stated that there
was no separate window to take deliveries for the Board at that
location; that except for the month of June, the Douglas County
clerk and the clerk’s office personnel accept all deliveries for
that office and the Board; and that Bourke is an administrative
assistant employed by the clerk’s office who assists the Board
on matters “from time to time.” Finally, he stated that Bourke
was served summons at the window for the clerk’s office.
ASSIGNMENTS OF ERROR
Hilt asserts that TERC erred in (1) failing to consider evi-
dence of functional obsolescence and rejecting evidence of
other properties for functional obsolescence, (2) giving no
weight to Hilt’s testimony regarding the condition of the inte-
rior of the property, (3) failing to consider evidence of other
larger properties showing “‘equalization grids’” for the subject
property, (4) calculating the adjustment for the “storage room
. . . under the garage,” (5) utilizing an erroneous quality of con-
struction and ignoring Hilt’s testimony in that regard, (6) incor-
rectly applying depreciation, and (7) incorrectly calculating the
cost of repairs and treating items of repair as maintenance.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
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Cite as 30 Neb. App. 425independent of the lower court’s decision. Main St Properties
v. City of Bellevue, 309 Neb. 738, 962 N.W.2d 333 (2021).
[2-4] Appellate courts review decisions rendered by TERC
for errors appearing on the record. Wheatland Indus. v. Perkins
Cty. Bd. of Equal., 304 Neb. 638, 935 N.W.2d 764 (2019).
When reviewing a judgment for errors appearing on the record,
an appellate court’s inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable. Id. Agency action is
arbitrary, capricious, and unreasonable if it is taken in dis­
regard of the facts or circumstances of the case, without some
basis which would lead a reasonable and honest person to the
same conclusion. Id.[5,6] Questions of law arising during appellate review of
TERC decisions are reviewed de novo. Upper Republican
NRD v. Dundy Cty. Bd. of Equal., 300 Neb. 256, 912 N.W.2d
796 (2018). Whether an agency decision conforms to the
law is by definition a question of law. Betty L. Green Living
Trust v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 N.W.2d
551 (2018).
ANALYSIS
[7] We first address the question of jurisdiction raised by the
Board in its response to Hilt’s petition for review. The Board
argues that this court does not have jurisdiction over Hilt’s
appeal because there was no appropriate service of summons
of Hilt’s petition. It is the power and duty of an appellate court
to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
Porter v. Porter, 309 Neb. 167, 959 N.W.2d 235 (2021).
[8] Service of summons within 30 days of the filing of the
petition for review of TERC’s decision is necessary to con-
fer subject matter jurisdiction upon the Nebraska Court of
Appeals. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App.
499, 677 N.W.2d 521 (2004); McLaughlin v. Jefferson Cty.
Bd. of Equal., 5 Neb. App. 781, 567 N.W.2d 794 (1997). See,
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HILT v. DOUGLAS CTY. BD. OF EQUAL.
Cite as 30 Neb. App. 425also, § 77-5019(2)(b) (in appeals from TERC decisions to
Court of Appeals, “[s]ummons shall be served on all parties
within thirty days after the filing of the petition in the manner
provided for service of a summons in a civil action”).
Here, the Board acknowledges that Hilt’s petition was timely
filed, but the Board argues that the petition was not properly
served on it within the 30-day time limit because it was not
served with the county clerk in accordance with Neb. Rev.
Stat. § 23-135 (Reissue 2012), which provides that all claims
against a county shall be filed with the county clerk within 90
days from the time when any materials or labor—which form
the basis of the claims—have been furnished or performed.
However, we do not find § 23-135 to be the applicable statute
for purposes of our analysis in this case. See Zeller Sand &
Gravel v. Butler Co., 222 Neb. 847, 388 N.W.2d 62 (1986)
(holding that § 23-135 applies to all claims arising from or out
of contract). Instead, we have examined § 25-510.02, which
provides for service upon the State of Nebraska and its politi-
cal subdivisions:
(1) The State of Nebraska, any state agency as defined
in section 81-8,210, and any employee of the state as
defined in section 81-8,210 sued in an official capacity
may be served by leaving the summons at the office of
the Attorney General with the Attorney General, deputy
attorney general, or someone designated in writing by
the Attorney General, or by certified mail or designated
delivery service addressed to the office of the Attorney
General.
(2) Any county, city, or village of this state may be
served by personal, residence, certified mail, or desig-
nated delivery service upon the chief executive officer
or clerk.
(3) Any political subdivision of this state, as defined
in subdivision (1) of section 13-903 [of the Political
Subdivisions Tort Claims Act], other than a county,
city, or village, may be served by personal, residence,
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Cite as 30 Neb. App. 425certified mail, or designated delivery service upon the
chief executive officer, clerk, secretary, or other official
whose duty it is to maintain the official records, or any
member of the governing board or body, or by certified
mail or designated delivery service to the principal office
of the political subdivision.
(Emphasis supplied.)
This court previously discussed the jurisdictional require-
ment of service of the summons upon the Board within 30
days after the filing of a petition for review in Widtfeldt v.
Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521(2004). In that case, there were multiple jurisdictional prob-
lems with the taxpayer’s petition for review. As relevant here,
for one of the tax years at issue, the taxpayer did not name the
board of equalization as a party in the petition and failed to
have summons served upon the board of equalization within
30 days after filing the petition. The taxpayer’s petition for
review identified TERC as the sole appellee in its caption.
The parties were not identified in the body of the petition.
Service of summons was made upon the Attorney General’s
office. We first determined that the petition did not meet
statutory requirements, because the taxpayer had not named
the board of equalization as a party and the petition did not
present circumstances under which TERC could be made a
party. See § 77-5019(2)(b). We agreed, however, that if TERC
had been a proper party, TERC would have been properly
served by issuance of a summons to the Attorney General. See
§ 25-510.02(1). This court went on to discuss the remaining
subsections of § 25-510.02, stating:
[Section] 25-510.02(2) requires service of a county,
city, or village upon the chief executive officer or clerk.
Section 25-510.02(3) requires service of other political
subdivisions, as defined by . . . § 13-903 . . . upon the
subdivision’s chief executive officer, clerk, secretary, or
other official whose duty it is to maintain the official
records; upon any member of the governing board or
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Cite as 30 Neb. App. 425body; or by certified mail to the principal office of the
political subdivision.
Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. at 503, 677
N.W.2d at 524. In Widtfeldt, we found we did not need to
determine whether a county board of equalization fell under
§ 25-510.02(2) or (3), observing that neither of those subsec-
tions authorized service upon the Attorney General.
In the present case, Hilt argues that service of the sum-
mons was proper regardless of whether a county board of
equalization falls under § 25-510.02(2) or (3). With respect to
§ 25-510.02(3), Hilt argues that “to the extent the [Board] is
its own political subdivision, service upon the [Board] at its
principal place of business is appropriate.” Brief for appellant
at 29. We disagree that the Board is “its own political subdivi-
sion” such that it falls under § 25-510.02(3) and find that serv­
ice had to be accomplished under § 25-510.02(2).
Neb. Rev. Stat. § 13-903(1) (Reissue 2012) defines “[p]oliti-
cal subdivision[s]” as including “villages, cities of all classes,
counties, school districts, learning communities, public power
districts, and all other units of local government, including
entities created pursuant to the Interlocal Cooperation Act or
Joint Public Agency Act.” We note that § 13-903(3) defines
“[e]mployee of a political subdivision” to mean “any one or
more officers or employees of the political subdivision or any
agency of the subdivision.” (Emphasis supplied.)
Section 25-510.02(3), by its own terms, applies to service
upon political subdivisions “other than” counties, cities, or
villages. Accordingly, the question is not whether a county
board of equalization is a political subdivision; but, rather, the
question is whether a county board of equalization is a politi-
cal subdivision “other than” a county. The appellate courts of
this state have described a “county” and the relationship of a
county board of equalization to it as follows:
“A county is one of the public governmental subdivi-
sions of a state, corporate in character . . . , created and
organized for public political purposes connected with
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Cite as 30 Neb. App. 425the administration of state government and specifically
charged by law with the superintendence and administra-
tion of local affairs within its lawfully defined territorial
boundaries. . . . Unless restrained by the Constitution the
legislature may exercise control over county agencies and
require such public duties and functions to be performed
by them as fall within the general scope and objects of the
county as a body corporate or politic. . . .
“Both the county board and the board of equalization
are such county agencies, required by statute and appli-
cable authorities to perform certain well-defined public
duties and functions in perfecting the administration of
representative local government. They are separate enti-
ties, as is every other agency of the county . . . .”
Wolf v. Grubbs, 17 Neb. App. 292, 299-300, 759 N.W.2d 499,
511 (2009) (emphasis omitted), quoting Speer v. Kratzenstein,
143 Neb. 311, 12 N.W.2d 360 (1943). See, also, Ev. Luth. Soc.
v. Buffalo Cty. Bd. of Equal., 243 Neb. 351, 500 N.W.2d 520(1993) (county board of equalization is administrative agency
of county).
While we have not found any cases discussing whether serv­
ice of summons on a county board of equalization is governed
by § 25-510.02(2) or (3), we find guidance in cases in which
the Nebraska Supreme Court has discussed for purposes of the
Political Subdivisions Tort Claims Act whether various enti-
ties are separate political subdivisions from a particular county
or municipality. In Brothers v. Kimball Cty. Hosp., 289 Neb.
879, 857 N.W.2d 789 (2015), the Supreme Court determined
that a county hospital is not merely an agency of the county,
but, rather, is a separate and independent political subdivi-
sion. Accordingly, the county could not be held vicariously
liable for the alleged medical negligence of the hospital and its
employees. The court first observed that a county hospital was
not specifically identified as a political subdivision in either
the Political Subdivisions Tort Claims Act or the county hos-
pital statutes. It also observed that the county hospital statutes
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Cite as 30 Neb. App. 425did not specifically classify a county hospital as “a body cor-
porate and politic,” although the court did not find the lack of
that language to be dispositive. Brothers v. Kimball Cty. Hosp.,
289 Neb. at 885, 857 N.W.2d at 795. The Supreme Court noted
cases reviewed by the trial court in addressing the issue. See
Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389(2008) (municipal utility was agency or department of city,
such that utility worker’s negligence action against city after
worker was injured while working was barred by exclusive
remedy provisions of Nebraska Workers’ Compensation Act
and corresponding exemption in Political Subdivisions Tort
Claims Act); Lock v. City of Imperial, 182 Neb. 526, 531, 155
N.W.2d 924, 927 (1968) (airport authority, created by city
under “Cities Airport Authorities Act, [was] supplementary,
separate, and independent public corporation,” and city was
not liable for authority’s torts).
The Supreme Court in Brothers v. Kimball Cty. Hosp., supra,
then reviewed the county hospital statutes at length and, con-
sidering the statutes as a whole, concluded that a county hospi-
tal was a separate legal entity from the county. The court noted
particularly that the hospital’s governing body was in charge
of formulating rules to guide the hospital and that the hospi-
tal’s board of trustees, rather than the county, had authority to
pay claims against the hospital. The court declined to express
an opinion as to the legal status of a county hospital where
the county board is elected to serve as the hospital’s board of
trustees, another possible scenario under the county hospital
statutes. Because the county hospital at issue in Brothers was a
separate legal entity to which control of the hospital’s employ-
ees was entrusted, the Supreme Court concluded that the
county had no liability for acts of the hospital’s employees.
[9,10] Applying the above analysis to the present case, we
first note that neither the Political Subdivisions Tort Claims
Act nor the board of equalization statutes expressly iden-
tify a county board of equalization as a political subdivision.
See, § 13-903(1); Neb. Rev. Stat. § 77-1501 et seq. (Reissue
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Cite as 30 Neb. App. 4252018 & Cum. Supp. 2020). The county board of equalization
statutes do not expressly identify a county board of equaliza-
tion as a body politic or corporate. Significantly, § 77-1501
provides that “[t]he county board shall constitute the county
board of equalization.” The county board of equalization may
appoint one or more suitable persons to act as referees, but
it is the county board that fixes the compensation for any
referees and the compensation is payable from the county’s
general fund. See § 77-1502.01. Likewise, while the board of
equalization may compel the attendance of witnesses, the fees
for any such witnesses are paid by the county or the taxpayer
whose property valuation is under investigation under certain
circumstances, and a sum can be recovered in a civil suit by the
county from witnesses who fail to respond to service of process
or to answer proper questions posed by the board of equaliza-
tion. See § 77-1509. As noted above, a county board of equal-
ization is a county agency. See Wolf v. Grubbs, 17 Neb. App.
292, 759 N.W.2d 499, 511 (2009). County boards of equaliza-
tion can exercise only such powers as are expressly granted to
them by statute, and statutes conferring power and authority
upon a county board of equalization are strictly construed.
Village at North Platte v. Lincoln Cty. Bd. of Equal., 292 Neb.
533, 873 N.W.2d 201 (2016). See, also, Speer v. Kratzenstein,
143 Neb. 311, 12 N.W.2d 360 (1943) (county board of equal-
ization is board for equalization of valuations in certain cases,
possesses no powers beyond those conferred by statute, and has
no authority to enter into any contract to obtain information,
knowledge, or evidence needed to equalize valuations).
Based on our reading of §§ 13-903 and 25-510.02, the county
board of equalization statutes, and the above case law, we
conclude that a county board of equalization is not a political
subdivision “other than” a county, and service upon a county
board of equalization must be accomplished pursuant to the
requirements of § 25-510.02(2) rather than § 25-510.02(3).
[11] Next, we address Hilt’s arguments that service was
accomplished under § 25-510.02(2). Hilt argues that because
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Cite as 30 Neb. App. 425§ 25-510.02(2) contains the word “may,” service in this case
on the clerk was discretionary. This court rejected a similar
argument with respect to the word “may” in § 25-510.02(1)
and service on the Attorney General. Ray v. Nebraska Crime
Victim’s Reparations Comm., 1 Neb. App. 130, 487 N.W.2d
590 (1992). In that case, the appellant contended that because
§ 25-510.02(1) (Reissue 1989) contained the word “may,”
service on the Attorney General was discretionary and service
in the usual civil manner under Neb. Rev. Stat. § 25-505.01(Reissue 1989), and not on the Attorney General, was also
proper. After examining § 25-510.02 and the other service stat-
utes found at Neb. Rev. Stat. §§ 25-508.01 through 25-514.01
(Reissue 1989), all of which contained the phrase “may be
served,” we determined that the word “may” in those statutes
“qualifie[d] the methods of acceptable service, not the entity
to be served.” Ray v. Nebraska Crime Victim’s Reparations
Comm., 1 Neb. App. at 132, 487 N.W.2d at 591. The Nebraska
Supreme Court has also determined that § 25-510.02 (Reissue
2016) provides that the plain meaning of the phrase “may be
served,” when viewed in the context of the service statutes,
modifies the method of acceptable service, not the entity to be
served. See, Becker v. Nebraska Acct. & Disclosure Comm., 249
Neb. 28, 541 N.W.2d 36 (1995); Twiss v. Trautwein, 247 Neb.
535, 529 N.W.2d 24 (1995). Accordingly, Hilt’s argument that
service on the clerk in this case was discretionary fails.
Hilt also argues that service under § 25-510.02(2) was
accomplished because “[t]he Douglas County Clerk’s Office
and personnel were in fact served.” Brief for appellant at 28.
In support of this argument, he references information found
in the affidavit filed with this court by his attorney, stating that
the Board does not have a separate address and is located at
the same address as the clerk’s office; that there is not a sepa-
rate window for deliveries to the Board; and that except for the
month of June, the clerk’s office personnel accept all deliveries
to that office. He also references the statement in the affida-
vit that Bourke, who accepted service, is an administrative
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Cite as 30 Neb. App. 425assistant employed by the clerk’s office who assists the Board
on matters “from time to time.” We note that in its brief,
the Board argues that Bourke does not work “in the County
Clerk’s office for Douglas County” and is not “an authorized
employee to receive service for the county.” Brief for appellee
at 12.
Section 25-510.02(1) provides more options for accomplish-
ing service upon the Attorney General when the State or a
state agency is sued than § 25-510.02(2) does for accomplish-
ing service upon the clerk when a county is served. Section
25-510.02(1) provides that a summons can be left at the
Attorney General’s office with (1) the Attorney General, (2) a
deputy attorney general, or (3) someone designated in writing
by the Attorney General or that service may be accomplished
by certified mail or designated delivery service addressed to
the Attorney General’s office. In contrast, § 25-510.02(2) pro-
vides that service upon a county may be accomplished by one
of the listed methods upon the clerk. This subsection does not
specify any other individuals who may accept a summons on
behalf of the clerk, nor does it specify any other entity or indi-
vidual to whom service by certified mail or designated delivery
service may be addressed.
Here, Hilt filed a praecipe for summons asking the sheriff
to issue summons for personal service to “Douglas County
Board of Equalization.” The return of service shows that serv­
ice was made on “Douglas County Board of Equalization,”
that the type of service was “Company Leave,” that the
­servee was “Sharon Bourke,” and that her relationship to the
Board was “Administrative Assistant.” The parties dispute
whether Bourke was employed by the Board or the clerk’s
office, but regardless of what entity employed Bourke and
regardless of whether the Board and the clerk’s office share
the same address, the record does not show that service was
accomplished upon the county clerk. Hilt’s praecipe did not
request summons to be served upon the clerk, and the return
does not show that service was upon the clerk. Because Hilt
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§ 25-510.02(2), we are without jurisdiction. Accordingly, we
dismiss Hilt’s petition for review.
CONCLUSION
For the reasons set forth above, we dismiss Hilt’s petition
for review for lack of jurisdiction.
Appeal dismissed.