Hilt , Trustee of Thomas L. Hilt Revocable Trust v. Douglas County Board of Equalization
| Decision Date | 07 December 2021 |
| Docket Number | A-21-253. |
| Parties | Thomas L. HILT, TRUSTEE OF the THOMAS L. HILT REVOCABLE TRUST, appellant, v. DOUGLAS COUNTY BOARD OF EQUALIZATION, appellee. |
| Court | Nebraska Court of Appeals |
Douglas W. Ruge, for appellant.
Jennifer D. Chrystal-Clark, Deputy Douglas County Attorney, for appellee.
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.
Hilt owns a large residential parcel located in the Indian Creek Estates subdivision in Elkhorn, Douglas County, Nebraska. 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 protested 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 evidentiary hearing was held. At the hearing, TERC received documentary evidence offered by both parties and heard testimony from Hilt and from a real estate specialist and special evaluation appraiser employed by the Douglas County assessor'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 sufficient competent evidence to make its determinations. TERC also concluded that Hilt failed to present clear and convincing 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 time 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.
Hilt asserts that TERC erred in (1) failing to consider evidence 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 interior 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 construction and ignoring Hilt's testimony in that regard, (6) incorrectly applying depreciation, and (7) incorrectly calculating the cost of repairs and treating items of repair as maintenance.
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 independent of the lower court's decision. Main St Properties v. City of Bellevue , 309 Neb. 738, 962 N.W.2d 333 (2021).
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 disregard of the facts or circumstances of the case, without some basis which would lead a reasonable and honest person to the same conclusion. Id.
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).
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).
Service of summons within 30 days of the filing of the petition for review of TERC's decision is necessary to confer 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, also, § 77-5019(2)(b) ().
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) (). Instead, we have examined § 25-510.02, which provides for service upon the State of Nebraska and its political subdivisions:
(Emphasis supplied.)
This court previously discussed the jurisdictional requirement 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 problems 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...
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