970 N.W.2d 113
Neb. Ct. App.2021Background
- Thomas L. Hilt owns a large residence in Douglas County; the county assessor set taxable values for 2017–2019 that Hilt appealed to the Douglas County Board of Equalization and then to the Tax Equalization and Review Commission (TERC).
- TERC held an evidentiary hearing and affirmed the Board’s valuation for all three years.
- Hilt filed a petition for review in the Nebraska Court of Appeals and, within 30 days, filed a praecipe for summons addressed to the "Douglas County Board of Equalization" at the county address; service was recorded on Sharon Bourke, described as an administrative assistant.
- The Board contended Hilt failed to serve the county clerk as required by Neb. Rev. Stat. § 25-510.02(2), so the Court of Appeals lacked subject-matter jurisdiction.
- The court analyzed whether a county board of equalization is a separate political subdivision subject to § 25-510.02(3) or a county agency governed by § 25-510.02(2), and whether the word "may" in § 25-510.02(2) rendered service on the clerk discretionary.
- Holding: the county board of equalization is a county agency and service had to be made on the county clerk; "may" modifies methods not the entity; Hilt did not show service on the clerk, so the Court of Appeals dismissed the petition for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court of Appeals had jurisdiction because summons was not served on the county clerk within 30 days under § 25-510.02(2). | Service at the Board's address on an administrative assistant sufficed; service occurred within 30 days. | Service must be on the county clerk per § 25-510.02(2); clerk was not served, so no jurisdiction. | No jurisdiction; Hilt failed to serve the county clerk as required, appeal dismissed. |
| Whether a county board of equalization is a separate political subdivision permitting service under § 25-510.02(3). | The Board is its own political subdivision; service on the Board principal office is proper. | The Board is an agency of the county and not a separate political subdivision for § 25-510.02(3). | Board is a county agency; service governed by § 25-510.02(2), not § 25-510.02(3). |
| Whether the word "may" in § 25-510.02(2) makes service on the clerk discretionary. | "May" makes service on the clerk optional; ordinary civil service methods suffice. | "May" limits acceptable methods, not the required recipient; clerk must be served. | "May" modifies methods of service, not the entity; service on clerk required. |
| Whether service on an administrative assistant at the clerk/Board address sufficed as service on the county clerk. | Administrative assistant worked at the clerk's window and accepted deliveries for the clerk and Board; thus service was effectively on the clerk. | Return and praecipe did not request or show service on the clerk; the servee was not shown to be the clerk or an authorized agent. | Insufficient: record does not show service on the county clerk or authorized designee; service requirement unmet. |
Key Cases Cited
- Main St. Properties v. City of Bellevue, 309 Neb. 738 (Neb. 2021) (jurisdictional questions of law reviewed de novo)
- Wheatland Indus. v. Perkins Cty. Bd. of Equal., 304 Neb. 638 (Neb. 2019) (TERC decisions reviewed for errors appearing on the record)
- Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499 (Neb. Ct. App. 2004) (discusses service requirements in appeals from TERC)
- Ray v. Nebraska Crime Victim’s Reparations Comm., 1 Neb. App. 130 (Neb. Ct. App. 1992) ("may be served" in service statutes limits methods, not entities)
- Becker v. Nebraska Account. & Disclosure Comm., 249 Neb. 28 (Neb. 1995) (statutory "may be served" construed to modify service methods)
- Brothers v. Kimball Cty. Hosp., 289 Neb. 879 (Neb. 2015) (analysis of when an entity is a separate political subdivision)
- Wolf v. Grubbs, 17 Neb. App. 292 (Neb. Ct. App. 2009) (county board of equalization is an administrative agency of the county)
- Zeller Sand & Gravel v. Butler County, 222 Neb. 847 (Neb. 1986) (distinguishing statutes applicable to contract claims)