WASHINGTON COUNTY BD. OF EQUAL. v. Rushmore

• Decision Date: 10 September 2002
• Docket Number: No. A-01-771.,A-01-771.
• Citation: 11 Neb. App. 377,650 N.W.2d 504
• Parties: WASHINGTON COUNTY BOARD OF EQUALIZATION, Appellant, v. RUSHMORE BORGLUM MINISTRIES, INC., Appellee.
• Court: Nebraska Court of Appeals

650 N.W.2d 504

11 Neb. App. 377

WASHINGTON COUNTY BOARD OF EQUALIZATION, Appellant, v. RUSHMORE BORGLUM MINISTRIES, INC., Appellee.

No. A-01-771.

Court of Appeals of Nebraska.

September 10, 2002.

Edmond E. Talbot III, Washington County Attorney, Blair, for appellant.

Jim R. Titus, of Morris & Titus Law Firm, P.C., L.L.O., Lincoln, for appellee.

IRWIN, Chief Judge, and INBODY and CARLSON, Judges.

IRWIN, Chief Judge.

I. INTRODUCTION

Rushmore Borglum Ministries, Inc. (Rushmore), applied for tax-exempt status with the Washington County Board of Equalization (Board), claiming that status as a religious organization under Neb. Rev. Stat. § 77-202(d) (Cum.Supp.1998). Rushmore's application was denied by the Board. Thereafter, Rushmore appealed to the Nebraska Tax Equalization and Review Commission (the TERC). After a hearing, the TERC held that Rushmore's application should have been granted, and it reversed the determination of the Board and vacated its order. The Board appealed the decision of the TERC.

An administrative agency has the power to reconsider its decisions until the aggrieved party files an appeal or the statutory appeal period has expired. The Board reconsidered its decision beyond this timeframe and issued an order, and Rushmore appealed from this order. We find that the Board did not have jurisdiction to reconsider the matter and issue a subsequent order. As such, Rushmore did not have the power to appeal from the Board's order following its reconsideration. For the reasons stated herein, we find that Rushmore's appeal must be dismissed for lack of jurisdiction.

II. BACKGROUND

The property at issue is a residence and a partially completed garage built on approximately 10 acres located in Fort Calhoun, Nebraska. Rushmore purchased the property in 1998. The residence was built in 2000, but as of the time of the hearings, the garage was not finished. Rushmore applied for tax-exempt status in 1998 for tax year 1999. This application was granted. Rushmore then reapplied in 1999 for tax year 2000. Rushmore's 1999 application is the subject of this appeal.

On May 23, 2000, the Board denied Rushmore's application. It is undisputed that Rushmore was not given notice prior to May 23 that the Board was reviewing Rushmore's application, and as such, Rushmore was not present on May 23 when the Board denied its application. Rushmore was informed of the Board's decision by letter dated May 26, 2000. In this letter, the Board notified Rushmore that its application was denied and that Rushmore had 30 days from the final order to appeal the matter to the TERC. This matter was "reconsidered" on June 27, and the Board again denied Rushmore's application. Dr. Lonnie Hofer, the minister for Rushmore, testified at the hearing on June 27 that he received the letter from the Board denying his application on May 26. The record also contains a certified mail receipt signed by Hofer's wife on May 27 indicating she received the May 26 letter. We note the record does not reflect that any written or oral motion for reconsideration was ever made by Rushmore. On July 25, Rushmore appealed the determination resulting from the June 27 proceedings of the Board to the TERC.

A hearing was held before the TERC on January 11, 2001. At this hearing, the TERC questioned whether it had subject matter jurisdiction to decide this matter. The TERC's concern involved the timeliness of the appeal. In its March 14 order, the TERC determined that it had subject matter jurisdiction and allowed the case to proceed.

The TERC held a hearing on June 6, 2001, to decide the merits of this case. In a written order, the TERC reversed the determination of the Board and vacated its order. Thereafter, the Board filed a petition on appeal with this court.

III. ASSIGNMENT OF ERROR

For its assigned errors, the Board generally contends that the TERC erred in vacating and reversing the Board's denial of Rushmore's application.

IV. ANALYSIS

1. STANDARD OF REVIEW

We review the decision of the TERC for error appearing on the record. See Neb.Rev.Stat. § 77-5019(5) (Supp.1999). When reviewing an order 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. Harrison Square v. Sarpy Cty. Bd. of Equal., 6 Neb.App. 454, 574 N.W.2d 180 (1998); In re Conservatorship of Estate of Marsh, 5 Neb.App. 899, 566 N.W.2d 783 (1997).

2. JURISDICTIONAL QUESTION

Whether a question is raised by the parties concerning jurisdiction, it is not only within the power but the duty of an appellate court to determine whether such appellate court has jurisdiction over the subject matter. State v. Schmailzl, 248 Neb. 314, 534 N.W.2d 743 (1995); State v. Grant, 9 Neb.App. 919, 623 N.W.2d 337 (2001). As such, we are compelled to address whether this appeal is properly before us.

On May 23, 2000, the Board entered its order denying Rushmore's application for an exemption for being a religious organization. On June 27, the Board conducted a hearing where it "reconsidered" Rushmore's application. In its June 27 order, the Board again denied Rushmore's application. Rushmore filed its notice of appeal to the TERC on July 25.

A hearing was held before the TERC on January 11, 2001. The TERC raised, on its own motion, the question of subject matter jurisdiction. In its order, the TERC noted that there is "`no "presumption" that the [TERC] has jurisdiction.' "See Arcadian Fertilizer v. Sarpy Cty. Bd. of Equal., 7 Neb.App. 499, 583 N.W.2d 353 (1998). After the hearing, the parties submitted briefs on the issue of jurisdiction. The parties also entered into a stipulation regarding jurisdiction. In this stipulation, the parties agreed that no notice was given by the Board to Rushmore that a hearing would be held on May 23, 2000. The parties stipulated that Rushmore had notice of the June 27 hearing. The parties agreed their stipulation could be "used as evidence in determining subject matter jurisdiction." On March 14, 2001, the TERC entered an order finding it had jurisdiction and allowed the case to proceed on the merits. In so finding, the TERC stated, "[B]ased on the Stipulation and the Briefs filed by the Parties the [TERC] finds that it has subject matter jurisdiction in this appeal."

Based on the above facts, we must decide whether the Board had jurisdiction to reconsider its May 23, 2000, order on June 27, and subsequently whether the TERC had jurisdiction to hear Rushmore's appeal.

Before we decide the jurisdictional question, we note that the Board did not comply with the statute requiring Rushmore to be given at least 10 days' notice before a hearing is held. See Neb.Rev.Stat. § 77-202.02 (Cum.Supp.1998). In the parties' stipulation, the Board agreed that Rushmore was not given notice that a hearing would be held on May 23, 2000. We do not condone the actions of the Board in this opinion. The Board should have complied with § 77-202.02 and given Rushmore the proper notice. Even so, in deciding this case, we are required to adhere to the strict construction of the jurisdictional statutes. See Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001).

Case law provides that an administrative agency has the power to reconsider its decisions until the "`aggrieved party files an appeal or the statutory appeal period has expired.'" City of Omaha v. Wade, 1 Neb.App. 1168, 1172, 510 N.W.2d 564, 567 (1993). This provision applies to the Board because it is an administrative agency. See Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal., 243 Neb. 351, 500 N.W.2d 520 (1993) (stating that county board of equalization is administrative agency).

To perfect an appeal to the TERC, one must file his or her notice of appeal within 30 days of the Board's final order. See Neb.Rev.Stat. § 77-1510 (Cum.Supp.2000). Case law has held that in some cases, a motion to reconsider may be treated as a motion for new trial that would toll the time for filing a notice of appeal. See, Breeden v. Nebraska Methodist Hosp., 257 Neb. 371, 598 N.W.2d 441 (1999); Neb. Rev.Stat. § 25-1912 (Supp.1999). However, the record in the instant case contains no motion to reconsider. See Jackson v. Board of Equal. of City of Omaha, 10 Neb.App. 330, 630 N.W.2d 680 (2001). Thus, the time to file an appeal was not tolled. See id.

Rushmore should have filed its notice of appeal by June 22, 2000. Rushmore did not file its notice of appeal by June 22, that is, within 30 days of the May 23 decision. The Board had jurisdiction only until that day to reconsider its decision. See City of Omaha v. Wade, supra. Therefore, the Board did not have jurisdiction to reconsider its May 23 order on June 27. Even so, the Board held a hearing and entered a decision on June 27.

The only valid order that existed was the May 23, 2000, order, and Rushmore's notice of appeal was filed on July 25, well beyond the 30-day time limit set out in § 77-1510. Therefore, the TERC did not have jurisdiction to hear Rushmore's appeal, since the appeal was untimely. Because the TERC was without jurisdiction, we likewise do not have jurisdiction to decide the merits of this case. See Jackson v. Board of Equal. of City of Omaha, supra. Because Rushmore did not comply with the jurisdictional requirements, this appeal must be dismissed for lack of jurisdiction. See Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. 905, 620 N.W.2d 90 (2000).

V. CONCLUSION

The Board did not have jurisdiction to enter its order of June 27, 2000. Rushmore did not perfect its appeal within 30 days of the Board's May 23 order, not filing its notice of appeal until July 25. Therefore, this appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

CARLSON, Judge, dissenting.

I respectfully dissent from the majority's determination that we do not have jurisdiction in this matter and the conclusion...