IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
FRENCHMAN VALLEY CO-OP V. DEUEL CTY. BD. OF COMRS.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
FRENCHMAN VALLEY COOPERATIVE, INC.,
A NEBRASKA CORPORATION, APPELLANT,
THE DEUEL COUNTY BOARD OF COMMISSIONERS AND
THE COUNTY OF DEUEL, NEBRASKA, APPELLEES.
Filed October 6, 2020. No. A-19-1098.
Appeal from the District Court for Deuel County: DEREK C. WEIMER, Judge. Affirmed.
Thomas E. Jeffers, Andrew C. Pease, and Jay S. Linton, of Crosby Guenzel, L.L.P., for
Thomas J. Freeman, of Governmental Law, L.L.C., for appellees.
MOORE, Chief Judge, and BISHOP and WELCH, Judges.
Frenchman Valley Cooperative, Inc. (Frenchman Valley) sought a refund from Deuel
County, Nebraska, of a portion of its 2017 personal property taxes, claiming the taxes were paid
as the result of an “honest mistake or misunderstanding” and asserting a right to bring the claim
pursuant to Neb. Rev. Stat. § 77-1734.01(2) (Reissue 2018). The Deuel County Board of
Commissioners (County Board) denied the refund and Frenchman Valley filed a petition in error
with the Deuel County District Court. The district court determined the petition in error was
untimely filed and dismissed the action. Frenchman Valley appealed. For the reasons contained
herein, we affirm.
STATEMENT OF FACTS
Frenchman Valley operates a commercial fertilizer facility in Deuel County and owns
personal property including four welded fertilizer tanks. Frenchman Valley filed a 2017 Nebraska
personal property tax return and paid taxes on the four welded fertilizer tanks at their assessed
value without protest, but in a letter dated October 3, 2018, Frenchman Valley notified the Deuel
County Treasurer of its request for a tax refund. In that letter, Frenchman Valley argued that the
county assessor made an honest mistake that led to an overassessment and overpayment for the
2017 tax year. In connection therewith, Frenchman Valley argued that it had a right to request a
refund under § 77-1734.01(2). In response to the refund request, the Deuel County Assessor issued
a response to the County Board dated October 16, 2018, in which the assessor recommended
denying the 2017 tax refund claim. Following these submittals, the County Board set Frenchman
Valley’s refund claim as an agenda item to be heard during the October 16 County Board meeting.
The County Board’s October 16, 2018, meeting minutes indicated Frenchman Valley’s
CEO was present for the meeting but that no action would be taken until the county attorney had
reviewed the documents and the statutes related to the matter. The minutes for the November 6
County Board meeting reflect that the County Board voted to deny Frenchman Valley’s 2017 tax
refund claims. One week later, the county attorney sent a letter dated November 13, 2018, to
Frenchman Valley explaining that the County Board met on November 6 and voted to deny
Frenchman Valley’s request for a refund. The letter explained that the matter was not a result of a
clerical error, honest mistake, or misunderstanding, but instead stemmed from Frenchman Valley’s
improvements made on the property in 2013 without submitting a building permit to Deuel County.
The letter indicated that the structure was not discovered until a commercial appraiser assessed
commercial properties in Deuel County in late 2016 which resulted in Deuel County issuing a
change valuation notice in June 2017 assessing the value of the property at issue in response to
which Frenchman Valley did not file a protest.
On December 12, 2018, Frenchman Valley filed a petition in error with the Deuel County
District Court requesting that the court reverse the County Board’s decision to deny Frenchman
Valley’s refund claim, or in the alternative, for the court to remand the matter back to the County
Board to hold a hearing and allow Frenchman Valley an opportunity to be heard and to offer
evidence. In January 2019, Deuel County and the County Board filed a motion to dismiss
Frenchman Valley’s petition in error. In September, the district court granted the motion to
dismiss, finding the County Board’s decision was final and effective on October 23, 2018, and that
Frenchman Valley’s December 12 filing of its petition in error was untimely.
Subsequently, Frenchman Valley filed a motion to alter or amend the judgment asking the
district court to correct inaccurate factual findings, which the district court did in its October
amended memorandum and order. The district court found that the County Board issued a “final”
decision on November 6, 2018, and that Frenchman Valley received notice of the decision on
November 13. Ultimately, the district court applied the 30-day timeframe for appealing a final
order under Neb. Rev. Stat. § 25-1931 (Reissue 2016) to the facts and found Frenchman Valley
did not timely file a petition in error regarding the County Board’s final order. Frenchman Valley
timely appeals the district court’s order.
ASSIGNMENTS OF ERROR
Frenchman Valley argues the district court erred in finding that (1) the County Board’s
November 6, 2018, decision was a final order and in dismissing Frenchman Valley’s petition in
error, and (2) the County Board did not have to provide Frenchman Valley a hearing to present
evidence in support of its refund claim.
STANDARD OF REVIEW
Before reaching the legal issues presented for review, 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. Loyd v. Family Dollar Stores of Neb.,
(2020). A jurisdictional issue that does not involve a factual dispute presents a
question of law, which an appellate court independently decides.
Id. ANALYSIS The crux
of the district court’s order is that the district court lacked subject matter
jurisdiction due to Frenchman Valley’s failure to file its petition in error within 30 days of the
County Board’s November 6, 2018, order. The basis for the district court’s reasoning was
well-articulated by the Nebraska Supreme Court in Schaffer v. Cass County,
, 146 (2015):
Under § 25-1901, a “judgment rendered or final order made by any tribunal, board, or
officer exercising judicial functions and inferior in jurisdiction to the district court may be
reversed, vacated, or modified by the district court.” We have treated sheriff’s merit
commissions as tribunals under § 25-1901. Such appeal under § 25-1901 “shall be
commenced within thirty days after the rendition of the judgment or making of the final
order complained of.” A failure to file an appeal within 30 days of the judgment or final
order deprives the district court of jurisdiction to hear the appeal. The issue is when the
“rendition of the judgment” occurred.
In contrast to the written notation or order required when appealing from a district
court decision, we have interpreted a “judgment rendered” by an inferior tribunal within
Neb. Rev. Stat. §§ 25-1901 through 25-1931 (Reissue 2008) to be an oral announcement
of the decision or a pronounced vote at a hearing. We have said that when the decision is
pronounced by an inferior tribunal under § 25-1901, then, for purposes of appeal, only an
oral pronouncement is necessary, and not the entry of the final decision or vote on the
Applying this rationale, the district court found as follows:
The Court then looks to the more general provisions of the law found in Neb. Rev. Stat.
§§ 25-1901 and 25-1931 and finds that the Board’s decision was “final” when it was made
at the Board meeting on November 6, 2018. See Schaffer v. Cass [County],
(2015). [Frenchman Valley] received notice of the decision on November
13, 2018[,] by way of a letter from the Deuel County Attorney. The issue then becomes on
what date does the appeal time commence: the date of the decision (11/6/18) or the date of
the notice to [Frenchman Valley] of the decision (11/13/18)? Neb. Rev. Stat. § 25-1931
establishes that “[p]roceedings under section 25-1901 for reversing, vacating, or modifying
judgments or final orders shall be commenced within thirty days after the rendition of the
judgment or making of the final order. . .” Pursuant to Neb. Rev. Stat. § 25-1931,
[Frenchman Valley] should have filed its Petition in Error within thirty days of the Board’s
decision of November 6, 2018[,] which would have been on or before December 6, 2018.
The Petition in Error in this matter was filed on December 12, 2018. This is well after the
thirty day timeframe had run. The Petition in Error, therefore, was not timely filed to perfect
an appeal of the Board’s decision.
(Emphasis and citations omitted.)
Although Frenchman Valley argued to the district court that the final order should be
construed to have been entered on November 13, 2018, not November 6, Frenchman Valley
appears to have conceded that argument on appeal by failing to assign and argue the bases for the
district court’s error. Instead, Frenchman Valley argues that, because Frenchman Valley was not
provided a hearing on November 6 prior to the County Board’s vote, “Frenchman Valley was not
afforded the opportunity to be heard and offer evidence or argument in support of its claim. As a
matter of law, the complete lack of due process afforded to Frenchman Valley on its refund claim
renders the decision of the County Board on November 6, 2018, void.” Brief for appellant at 16.
But as the Nebraska Supreme Court recently held in State v. Harris,
___ N.W.2d ___, ___ (2020), “Before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter before it.” And, in
making that determination, an appellate court first “must assess whether the [party’s] direct appeal
from the [final] order was timely perfected.”Id. at 259, ___ N.W.2d at ___. In Harris, before
examining whether an order of the district court was void for lack of jurisdiction, the Nebraska
Supreme Court first analyzed whether the appeal from the alleged defective order was properly
and timely perfected, and then only analyzed the nature of the order once the court determined the
appeal from that order was properly perfected.
Here, Frenchman Valley does not contest that the district court erred in finding that it failed
to appeal within 30 days of the November 6, 2018, vote which the district court found to be the
date the County Board issued a final order. Instead, Frenchman Valley argues that the County
Board’s order itself was a nullity and therefore the timing of the appeal is lacking in consequence.
But, as in Harris, in order for the district court to examine the validity of the County Board order,
it was first required to determine whether Frenchman Valley’s appeal from that order was properly
perfected. The district court found that Frenchman Valley’s appeal was not properly perfected and
rather than assigning error to that specific finding, Frenchman Valley asks this court to reach the
issue of the validity of the County Board’s order. However, because Frenchman Valley failed to
timely perfect an appeal from that order, both the district court and this court lack jurisdiction over
Frenchman Valley’s claim.
Stated differently, as a result of Frenchman Valley’s failure to file its petition within 30
days of the County Board’s November 6, 2018, vote which would otherwise constitute a final
appealable order subject to review, the district court never acquired jurisdiction to review
Frenchman Valley’s claim that the County Board’s order was invalid and void. When a lower court
does not gain jurisdiction over the case before it, an appellate court also lacks the jurisdiction to
review the merits of the claim. Hawley v. Skradski,
Accordingly, because the district court and this court lack jurisdiction over this matter due to
Frenchman Valley’s failure to timely perfect its direct appeal, neither the district court nor this
court have jurisdiction to review the merits of Frenchman Valley’s two specific assignments of
Having found that the district court properly determined that Frenchman Valley failed to
timely perfect its appeal from the County Board’s decision, we affirm the court’s order dismissing
Frenchman Valley’s petition in error for lack of jurisdiction.