Glasson v. Board of Equal. of City of Omaha

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
Robert E. Glasson, appellant, v.
Board of Equalization of the
City of Omaha and the City
of Omaha, appellees.
___ N.W.2d ___
Filed April 12, 2019. Nos. S-18-472, S-18-474.
1. Judgments: Jurisdiction: Appeal and Error. 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 indepen-
dent of the decision made by the lower court.
2. Special Assessments: Municipal Corporations: Appeal and Error.
An appeal from a special assessment by a metropolitan-class city taken
as specified in Neb. Rev. Stat. § 14-813 (Reissue 2012) means that
proceedings from a district court shall be the same as an appeal from a
county board, and under this section, that means an appeal is taken by a
petition in error and the review is solely of the record made before the
tribunal whose action is being reviewed.
3. Statutes: Special Assessments: Words and Phrases: Appeal and
Error. As a general rule, the word “shall” in a statute is considered
mandatory and is inconsistent with the idea of discretion. Therefore,
based on a plain reading of the statute, unless, as contemplated by Neb.
Rev. Stat. § 14-101 (Reissue 2012), the Legislature or a city of the
metropolitan class alters the procedure for a claimant or appellant to
challenge a decision regarding an assessment, the procedure shall follow
that which is specified in Neb. Rev. Stat. § 14-813 (Reissue 2012).
4. Statutes: Appeal and Error. When a provision of a statute is plain and
unambiguous on its face, an appellate court must apply the provision
as written.
Appeals from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz &
Conway, P.C., L.L.O., for appellant.
Ryan J. Wiesen, Assistant Omaha City Attorney, for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
This case involves a consolidated appeal in which Robert
E. Glasson challenges the decision of the Douglas County
District Court. The district court found that it lacked juris-
diction over the assessment decision made by the Board of
Equalization of the City of Omaha exercising a quasi-judicial
function pursuant to Neb. Rev. Stat. § 14-547 (Reissue 2012).
The district court found that as a result of Glasson’s failure
to file an appeal bond with the city clerk within 20 days as
required by Neb. Rev. Stat. § 14-813 (Reissue 2012), the court
lacked jurisdiction over the appeal. We affirm.
BACKGROUND
On December 5, 2017, the city council for the City of
Omaha sat as a board of equalization pursuant to § 14-547
to hear and determine complaints, to equalize assessments,
and to correct special assessments as the law authorizes. The
city council, while sitting as a board of equalization zoning
board of appeals, approved special ordinance No. 10224. The
special ordinance approved funding for the removal of litter
from various parcels of real property located within the City
of Omaha, Nebraska, including one parcel owned by Glasson
involving two separate assessments: (1) “Item L-20 (Dump
Fee)—Case No. CI 18-51 and CI 18-1316” (No. 428773) and
(2) “Item L-21 (Litter-Structure)—Case No. CI 18-52 and
CI 18-1318” (No. 392788).
Glasson personally appeared before the board of equaliza-
tion on December 5, 2017, to protest the proposed special
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
assessment to be levied on his property. The board denied
Glasson’s protest. Following the board’s denial, Glasson filed
an appeal on January 3, 2018, regarding proposed assessments
Nos. 428773 and 392788, under cases Nos. CI 18-51 and
CI 18-52, before the city council had enacted the ordinance
regarding the assessment.
On January 23, 2018, the city council for the City of Omaha,
pursuant to its authority under § 14-547, levied the special
assessment, by ordinance, on Glasson’s property.
In addition to the public hearing held December 5, 2017, at
which Glasson was present, the Douglas County treasurer sent
Glasson a letter dated February 6, 2018. The letter was entitled
“Special Assessment Levy Notification” and informed Glasson
that he had until March 15 to remit payment of $978.
Upon receipt of the Douglas County treasurer’s “Special
Assessment Levy Notification” letter, Glasson attempted to
file an appeal at the Omaha city clerk’s office on February
13, 2018, 21 days after the ordinance levying the property
had passed. Glasson’s filing was denied by the city clerk as
untimely. On February 20, Glasson filed a petition in error
and notice of appeal with the district court under cases Nos.
CI 18-1316 and CI 18-1318.
In reviewing Glasson’s appeal, the district court found that
there was one assessment of $978 for a dump fee (No. 428773)
and one assessment of $1,305 for litter removal (No. 392788),
but that Glasson had filed four separate appeals regarding
the two assessments. The court noted that assessments Nos.
428773 and 392788 were each assessed on January 23, 2018.
Upon motion by the City of Omaha, the district court con-
solidated the four cases (cases Nos. CI 18-51, CI 18-52,
CI 18-1316, and CI 18-1318) into one appeal. However, it does
not appear that the court designated a specific docket number
under which the cases were to continue.
The district court noted that with regard to Glasson’s
January 3, 2018, appeals, docketed as cases Nos. CI 18-51
and CI 18-52, those appeals were filed before the ordinance
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
assessing the levy was enacted. Because the ordinance had not
been passed at the time of the January 3 filing, there was no
final, appealable order upon which the court could exercise
jurisdiction. The court then dismissed that portion of the con-
solidated action.
The court went on to note that with regard to Glasson’s
February 20, 2018, appeal for cases Nos. CI 18-1316 and
CI 18-1318, no appeal bond had been filed with the city clerk
within 20 days, as required by § 14-813. The court further
noted that Neb. Rev. Stat. § 14-548 (Reissue 2012) gives a
property owner, aggrieved by an assessment ordinance, the
right to appeal the decision to the district court, and indicated
that § 14-547 equates an ordinance to a final order. However,
the district court stated that in order to pursue that remedy, the
aggrieved party must file an appeal bond with the city clerk
within 20 days of the date of the contested order. Because
Glasson had failed to comply with § 14-813 by not filing an
appeal bond with the city clerk within 20 days, the district
court dismissed that portion of the action, ultimately dismiss-
ing Glasson’s now consolidated appeal for lack of jurisdiction.
Glasson appealed the consolidated cases to the Nebraska Court
of Appeals under two separate cases, which we moved to our
docket on our own motion,1 and have consolidated.
ASSIGNMENT OF ERROR
Glasson’s sole assignment of error is that the district court
erred in granting the City’s motion to dismiss.
STANDARD OF REVIEW
[1] 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.2
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350 (2008).
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GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
[2] An appeal from a special assessment by a metropolitan-
class city taken as specified in § 14-813 means that proceed-
ings from a district court shall be the same as an appeal from
a county board, and under this section, that means an appeal
is taken by a petition in error and the review is solely of
the record made before the tribunal whose action is being
reviewed.3
ANALYSIS
The thrust of Glasson’s argument is threefold. First, Glasson
argues that § 14-813 does not require an appeal bond to be
filed within 20 days of a final order. Next, Glasson contends
that no bond is required on the basis that an indigent party
need not file a bond. Lastly, Glasson argues that he was not
given notice of the final judgment until day 14 of the 20 days
in which he had the opportunity to file a bond.
Requirements for Filing
Under § 14-813.
Glasson contends that § 14-813 contains permissive lan-
guage that removes the requirement of filing within 20 days.
The language of § 14-813 provides in relevant part:
Whenever the right of appeal is conferred by this act,
the procedure, unless otherwise provided, shall be sub-
stantially as follows: The claimant or appellant shall,
within twenty days after the date of the order complained
of, execute a bond to such city with sufficient surety to
be approved by the clerk, conditioned for the faithful
prosecution of such appeal, and the payment of all costs
adjudged against the appellant. Such bond shall be filed
in the office of the city clerk.
Glasson directs our attention to the opening proviso of § 14-813,
which states that “[w]henever the right of appeal is conferred
by this act, the procedure, unless otherwise provided, shall be
3
See Jackson v. Board of Equal. of City of Omaha, 10 Neb. Ct. App. 330, 630
N.W.2d 680 (2001).
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GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
substantially as follows . . . .” Glasson argues that if language
providing otherwise is absent, then the procedure identified
in § 14-813 need only be substantially followed. Accordingly,
Glasson proposes that under the Omaha Municipal Code,4 there
is no requirement that a filing be made with the city clerk
within 20 days.
Glasson contends that the Omaha City Council altered the
filing procedure set forth in § 14-813 when it enacted Omaha
Mun. Code § 26-121. Glasson argues that the city council
altered the process by omitting the 20-day filing requirement
set forth in § 14-813. Section 26-121 of the Omaha Municipal
Code provides in part:
Any person who has filed a written complaint before
the board of equalization shall have the right to appeal to
the district court of the county within which such city is
located, by filing a good and sufficient bond in the sum of
not less than $50.00 and not more than double the amount
of the assessment complained of, conditioned for the
faithful prosecution of such appeal, and, if the judgment
of special assessment is sustained, to pay the amount
of such judgment, interest and cost. Such bond shall be
approved and appeal taken as specified in R.R.S. 1943,
§ 14-813, as amended.
Glasson fails to account for the fact that the language of the
municipal code specifically states that “[s]uch bond shall be
approved and appeal taken as specified in . . . § 14-813 . . . .”5
This language requires that appellants adhere to the procedure
outlined in § 14-813.
[3] Under our jurisprudence, as a general rule, the word
“shall” in a statute is considered mandatory and is inconsistent
with the idea of discretion.6 Therefore, based on a plain read-
ing of the statute, unless, as contemplated by Neb. Rev. Stat.
4
Omaha Mun. Code, ch. 26, art. II, § 26-121 (1980).
5
Id.
6
State v. Irish, 298 Neb. 61, 65, 902 N.W.2d 669, 672 (2017).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
§ 14-101 (Cum. Supp. 2018) the Legislature or a city of the
metropolitan class alters the procedure for a claimant or appel-
lant to challenge a decision regarding an assessment, the proce-
dure shall follow that which is specified in § 14-813.
Under the plain language of § 14-813, an appellant has 20
days from the date of the final order to “execute a bond to
such city with sufficient surety to be approved by the clerk.”
According to § 14-547, the passage of “[t]he ordinance levy-
ing a special assessment shall be final and binding as the final
order or judgment of a court of general jurisdiction.” Therefore,
the date of the final order in this case was January 23, 2018,
the date the city council approved the ordinance.
Here, Glasson attempted to execute a bond with the city
clerk on February 13, 2018, 21 days after the ordinance operat-
ing as a final order had passed. This court addressed a similar
fact pattern in Black v. State,7 in which we stated, “‘[T]he
filing of an approved bond is a jurisdictional requirement. Its
filing is a condition precedent to the initiation of the appel-
late process.’”
In Black, the appellant, William Black, appealed an order
of the director of the Department of Motor Vehicles regarding
an implied consent proceeding which resulted in revocation
of his driver’s license for 1 year. According to the statute in
Black, the applicant, licensee, or appellant was required to
execute a bond within 20 days from the date of the final order
complained of, with costs to the State of Nebraska in the sum
of $200 with sufficient surety to be approved by the auditor of
public accounts.
Black’s attorney sent a check, drawn on the trust account
of the attorney’s firm, to the director of the department. The
department then notified Black’s attorney that it could not
accept a cash bond and that a surety bond had to be filed within
20 days after the license revocation date. Black then executed
a surety bond to the department; however, we noted that the
7
Black v. State, 218 Neb. 572, 575, 358 N.W.2d 181, 183 (1984).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
bond was not received until 21 days after the revocation. As
a result of Black’s failure to file within the prescribed manner
and time limits, we found that the district court properly dis-
missed his petition for lack of subject matter jurisdiction.
[4] When a provision of a statute is plain and unambiguous
on its face, this court must apply the provision as written.8
Here, § 14-813, even when read together with Omaha Mun.
Code § 26-121, is plain and unambiguous on its face. Glasson
was required to execute a bond to the City of Omaha, with
sufficient surety to be approved by the clerk, within 20 days
after the date of the order complained of. Glasson, like Black,
failed to file within the allotted time.
Indigent Status and Filing
Requirements.
Glasson next argues, for the first time on appeal, that no
bond is required on the basis that an indigent party need not
file a bond. The record does not demonstrate that Glasson even
attempted to follow the procedure for the waiver of the bond
based on indigent status, nor does Glasson argue here that
he qualifies for such status. Therefore, we need not address
this argument.
Notice.
Glasson also argues that the City of Omaha did not provide
him with adequate notice of its ultimate decision concern-
ing the assessments. Glasson contends that the city council
passed the ordinance for the special assessments on January
23, 2018, at which point it became a final, appealable order,
but that he was not given notice of the decision until on or
about February 8, when he received notice from the Douglas
County treasurer dated February 6, 2018. Glasson asserts
that the government’s failure to provide notice of the deci-
sion deprived him of the 20-day period in which to file, but
8
See State v. Havorka, 218 Neb. 367, 355 N.W.2d 343 (1984).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
Cite as 302 Neb. 869
specified in his briefs the basis of his arguments regarding
notice. During oral argument of this case, Glasson raised for
the first time his contention that his statutory right to notice
by mail, as provided in the Omaha Municipal Code,9 was vio-
lated in this case.
The record refutes Glasson’s claim that he lacked notice of
the City of Omaha’s intended action. As the district court noted
in its order dismissing Glasson’s consolidated appeal, Glasson
filed his first appeal on January 3, 2018, following the board of
equalization’s December 5, 2017, decision denying his protest
to the proposed assessments. Moreover, Glasson was present at
the December meeting and was given an opportunity to protest
the special assessments. Additionally, there is no indication
in the briefs or in the record that public notice of the Omaha
City Council’s January 23 meeting was not given according to
statute.10 The record demonstrates that Glasson was provided
notice of the assessments by the Douglas County treasurer’s
office prior to the expiration of the 20 days.
As for Glasson’s contention that he did not receive notice
by mail, we observe that this issue was not raised below. As
such, the issue is not appropriately before this court and we
need not address it further.
Glasson’s assignment of error is without merit.
CONCLUSION
The statutory scheme requires that an appellant execute
a bond with the city clerk within 20 days of the final order,
which Glasson did not do. The decision of the district court
dismissing Glasson’s consolidated appeal for lack of jurisdic-
tion is affirmed.
A ffirmed.
9
See Omaha Mun. Code, ch. 26, art. II, § 26-123 (1980).
10
See § 14-547.