Cain v. Lymber
| Decision Date | 14 August 2020 |
| Docket Number | No. S-19-807.,S-19-807. |
| Citation | 947 N.W.2d 541,306 Neb. 820 |
| Parties | Donald V. CAIN, Jr., appellant, v. Lana LYMBER, in her official capacity as Custer County Assessor, appellee. |
| Court | Nebraska Supreme Court |
David A. Domina, of Domina Law Group, P.C., L.L.O., Omaha, for appellant.
Steven R. Bowers, Custer County Attorney, and Kayla C. Clark, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Donald V. Cain, Jr., filed an action in district court against the Custer County assessor (Assessor) and the Tax Equalization and Review Commission (TERC) in which he alleged that the Assessor and the TERC failed to adhere to our mandate in a prior appeal and that, as a result, the Assessor recorded the taxable value of his property incorrectly. He sought an order declaring the meaning of our prior opinion and directing the Assessor to record the taxable value he understood our prior opinion to require. The district court dismissed the TERC as a party and concluded that it did not have authority to enter a declaratory judgment. We affirm.
This is the third time the subject of Cain's 2012 property tax obligation has come before this court. We summarize how we have reached this point in the sections below.
Cain owns several parcels of land in Custer County, Nebraska. In 2012, after the Assessor increased the assessed value of Cain's property, Cain challenged the valuation increase with the TERC pursuant to Neb. Rev. Stat. § 77-1507.01 (Reissue 2018). The TERC affirmed the increased valuations, and Cain appealed to this court. See Cain v. Custer Cty. Bd. of Equal. , 291 Neb. 730, 868 N.W.2d 334 (2015) ( Cain I ).
On appeal, we found the TERC plainly erred by reviewing Cain's protests under an incorrect standard. The TERC applied a standard applicable in appeals, but we explained it should have applied a different standard applicable to cases like Cain's seeking initial review under § 77-1507.01. We reversed the decision of the TERC and remanded the cause with instructions for the TERC to reconsider the matter on the record using the correct standard. Cain I, supra .
After remand, the TERC reviewed the record and, without an additional hearing, considered Cain's protests. The TERC issued a new order which reversed in part the Assessor's determination with respect to some parcels of Cain's land and affirmed the Assessor's valuations as to others. Cain again appealed. See Cain v. Custer Cty. Bd. of Equal. , 298 Neb. 834, 906 N.W.2d 285 (2018) ( Cain II ).
In Cain II , Cain contended, among other things, that the TERC erred in affirming the Assessor's valuations. Before reaching that issue, we explained that under Neb. Rev. Stat. § 77-201(1) (Reissue 2009), all real property, unless expressly exempt, is subject to taxation and is to be valued at its actual value. We also noted that while most real property is valued for taxation purposes at 100 percent of its actual value, "the Legislature has determined that agricultural and horticultural land shall be valued at 75 percent of its value." Cain II , 298 Neb. at 843, 906 N.W.2d at 294. We stated that "the ultimate issue of fact in this case is the actual value of Cain's subject property in 2012." Id. at 846, 906 N.W.2d at 295.
After summarizing the evidence and analyzing Cain's argument, we found the TERC erred in affirming the Assessor's valuations. We concluded that the TERC erred by failing to find that Cain carried his burden to prove that the Assessor's value of his irrigated grassland property was grossly excessive and the result of arbitrary or unreasonable action. In concluding our opinion, we stated:
We conclude that Cain has shown by a preponderance of the evidence that the valuation of the property at issue for the tax year 2012 is $870 per acre, for a total of $951,719.10. We remand the matter to the TERC with directions that it direct the Assessor to set the valuation of the property at such amount for the tax year 2012, upon which amount taxes for such year shall be determined and paid.
This brings us to the lawsuit at issue in this appeal. On September 21, 2018, Cain filed a lawsuit in the district court for Custer County against the Assessor and the TERC. In the lawsuit, he alleged that a dispute had arisen about the meaning of our opinion in Cain II . He sought a declaratory judgment to determine and resolve that dispute.
In his complaint, Cain referred to our decisions in Cain I and Cain II . With respect to Cain II , he alleged that our opinion decided that the actual value of his property for 2012 was $951,719.10. He alleged that our opinion did not determine the taxable or assessed value of Cain's property for 2012.
Cain went on to allege that "TERC did not adhere to the mandate of the Supreme Court." Instead, according to Cain, it issued an order to the Assessor directing that the taxable value of Cain's properties for 2012 was $951,719.10. This, Cain asserted, was incorrect. According to Cain, the TERC should have directed that the actual value was $951,719.10, to which the Assessor would apply the statutory discount for agricultural land to determine a taxable value of $713,789.33. Cain alleged that the Assessor recorded $951,719.10 as the taxable value.
In his requests for relief, Cain sought an order declaring that Cain II determined the actual value of his property to be $951,719.10 and an order directing the Assessor to use this number as the actual value, to apply the statutory discount, and to record an assessed value of $713,789.33.
Early in the case, the TERC filed a motion to dismiss and the district court granted the motion and dismissed the TERC as a defendant. Cain and the Assessor later filed cross-motions for summary judgment.
At the summary judgment hearing, the parties offered and the court received evidence. Among the evidence received was a certified copy of a TERC order dated February 27, 2018, and entitled "Decision and Order on Remand from the Nebraska Supreme Court." It is a two-page document, the body of which provides in full:
(Emphasis in original.)
No indication appears on the face of the TERC's February 27, 2018, order as to whether it was provided to Cain or his counsel. Cain alleged in his complaint and argues on appeal that the TERC did not provide the order to him or his counsel.
The Assessor also offered and the district court received another order of the TERC. It is dated September 5, 2018. The order describes a motion filed by Cain on August 29 requesting that the TERC issue an order nunc pro tunc, correcting its February 27 order because it was inconsistent with our opinion in Cain II . In the September 5 order, the TERC denied the motion, stating that no correction was necessary.
On July 25, 2019, the district court entered an order on the parties’ summary judgment motions. The district court initially stated that it appeared to it that Cain was correct that our opinion in Cain II determined the actual value of Cain's property. The district court went on to say, however, that before granting the relief sought, it was obligated to determine if it had authority to enter a declaratory judgment. The district court concluded it did not. It reasoned that Cain was making a collateral attack on the TERC's February 27, 2018, order and that a complaint for declaratory relief cannot be used as a substitute for a timely appeal. It concluded Cain's "proper remedy was to appeal the TERC Order on the mandate."
Cain timely appealed.
Cain assigns three errors on appeal. He contends that the district court erred (1) when it concluded that Cain's action for declaratory judgment is a collateral attack on the TERC order and that such collateral attack cannot be substituted for a direct appeal, (2) when it concluded Cain's remedy was to appeal the TERC order directed to the Assessor, and (3) when it dismissed the TERC as a defendant.
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Pitts v. Genie Indus. , 302 Neb. 88, 921 N.W.2d 597 (2019).
An appellate court reviews the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in...
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...See, e.g., Neb. Rev. Stat. ch. 44 (Reissue 2010) ("Insurance"); Neb. Rev. Stat. ch. 48 (Reissue 2010) ("Labor").51 Cain v. Lymber , 306 Neb. 820, 947 N.W.2d 541 (2020).52 Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).53 Cain v. Lymber , supra note 51.54 See id.55 See State ex rel......
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