Glasson v. Bd. of Equal. of Omaha

302 Neb. 869

925 N.W.2d 672

Robert E. GLASSON, Appellant,

v.BOARD OF EQUALIZATION OF The CITY OF OMAHA and The City of Omaha, Appellees.

Nos. S-18-472

S-18-474.

Supreme Court of Nebraska.

Filed April 12, 2019

Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, for appellant.

Ryan J. Wiesen, Assistant Omaha City Attorney, for appellees.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

This case involves a consolidated appeal in which Robert E. Glasson challenges the decision of the Douglas County District Court. The district court found that it lacked jurisdiction over the assessment decision made by the Board of Equalization of the City of Omaha exercising a quasi-judicial function pursuant to Neb. Rev. Stat. § 14-547 (Reissue 2012). The district court found that as a result of Glasson’s failure to file an appeal bond with the city clerk within 20 days as required by Neb. Rev. Stat. § 14-813 (Reissue 2012), the court lacked jurisdiction over the appeal. We affirm.

BACKGROUND

On December 5, 2017, the city council for the City of Omaha sat as a board of equalization pursuant to § 14-547 to hear and determine complaints, to equalize assessments, and to correct special assessments as the law authorizes. The city council, while sitting as a board of equalization zoning board of appeals, approved special ordinance No. 10224. The special ordinance approved funding for the removal of litter from various parcels of real property located within the City of Omaha, Nebraska, including one parcel owned by Glasson involving two separate assessments: (1) "Item L-20 (Dump Fee)—Case No. CI 18-51 and CI 18-1316" (No. 428773) and (2) "Item L-21 (Litter-Structure)—Case No. CI 18-52 and CI 18-1318" (No. 392788).

Glasson personally appeared before the board of equalization on December 5, 2017, to protest the proposed special assessment to be levied on his property. The board denied Glasson’s protest. Following the board’s denial, Glasson filed an appeal on January 3, 2018, regarding proposed assessments Nos. 428773 and 392788, under cases Nos. CI 18-51 and CI 18-52, before the city council had enacted the ordinance regarding the assessment.

On January 23, 2018, the city council for the City of Omaha, pursuant to its authority under § 14-547, levied the special assessment, by ordinance, on Glasson’s property.

In addition to the public hearing held December 5, 2017, at which Glasson was present, the Douglas County treasurer sent Glasson a letter dated February 6, 2018. The letter was entitled "Special Assessment Levy Notification" and informed Glasson that he had until March 15 to remit payment of $ 978.

Upon receipt of the Douglas County treasurer’s "Special Assessment Levy Notification" letter, Glasson attempted to file an appeal at the Omaha city clerk’s office on February 13, 2018, 21 days after the ordinance levying the property had passed. Glasson’s filing was denied by the city clerk as untimely. On February 20, Glasson filed a petition in error and notice of appeal with the district court under cases Nos. CI 18-1316 and CI 18-1318.

In reviewing Glasson’s appeal, the district court found that there was one assessment of $ 978 for a dump fee (No. 428773) and one assessment of $ 1,305 for litter removal (No. 392788), but that Glasson had filed four separate appeals regarding the two assessments. The court noted that assessments Nos. 428773 and 392788 were each assessed on January 23, 2018. Upon motion by the City of Omaha, the district court consolidated the four cases (cases Nos. CI 18-51, CI 18-52, CI 18-1316, and CI 18-1318) into one appeal. However, it does not appear that the court designated a specific docket number under which the cases were to continue.

The district court noted that with regard to Glasson’s January 3, 2018, appeals, docketed as cases Nos. CI 18-51 and CI 18-52, those appeals were filed before the ordinance assessing the levy was enacted. Because the ordinance had not been passed at the time of the January 3 filing, there was no final, appealable order upon which the court could exercise jurisdiction. The court then dismissed that portion of the consolidated action.

The court went on to note that with regard to Glasson’s February 20, 2018, appeal for cases Nos. CI 18-1316 and CI 18-1318, no appeal bond had been filed with the city clerk within 20 days, as required by § 14-813. The court further noted that Neb. Rev. Stat. § 14-548 (Reissue 2012) gives a property owner, aggrieved by an assessment ordinance, the right to appeal the decision to the district court, and indicated that § 14-547 equates an ordinance to a final order. However, the district court stated that in order to pursue that remedy, the aggrieved party must file an appeal bond with the city clerk within 20 days of the date of the contested order. Because Glasson had failed to comply with § 14-813 by not filing an appeal bond with the city clerk within 20 days, the district court dismissed that portion of the action, ultimately dismissing Glasson’s now consolidated appeal for lack of jurisdiction. Glasson appealed the consolidated cases to the Nebraska Court of Appeals under two separate cases, which we moved to our docket on our own motion,¹ and have consolidated.

ASSIGNMENT OF ERROR

Glasson’s sole assignment of error is that the district court erred in granting the City’s motion to dismiss.

STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court.²

An appeal from a special assessment by a metropolitan-class city taken as specified in § 14-813 means that proceedings from a district court shall be the same as an appeal from a county board, and under this section, that means an appeal is taken by a petition in error and the review is solely of the record made before the tribunal whose action is being reviewed.³

ANALYSIS

The thrust of Glasson’s argument is threefold. First, Glasson argues that § 14-813 does not require an appeal bond to be filed within 20 days of a final order. Next, Glasson contends that no bond is required on the basis that an indigent party need not file a bond. Lastly, Glasson argues that he was not given notice of the final judgment until day 14 of the 20 days in which he had the opportunity to file a bond.

Requirements for Filing Under § 14-813.

Glasson contends that § 14-813 contains permissive language that removes the requirement of filing within 20 days. The language of § 14-813 provides in relevant part:

Whenever the right of appeal is conferred by this act, the procedure, unless otherwise provided, shall be substantially as follows: The claimant or appellant shall, within twenty days after the date of the order complained of, execute a bond to such city with sufficient surety to be approved by the clerk, conditioned for the faithful prosecution of such appeal, and the payment of all costs adjudged against the appellant. Such bond shall be filed in the office of the city clerk.

Glasson directs our attention to the opening proviso of § 14-813, which states that "[w]henever the right of appeal is conferred by this act, the procedure, unless otherwise provided , shall be substantially as follows ...." Glasson argues that if language providing otherwise is absent, then the procedure identified in § 14-813 need only be substantially followed. Accordingly, Glasson proposes that under the Omaha Municipal Code,⁴ there is no requirement that a filing be made with the city clerk within 20 days.

Glasson contends that the Omaha City Council altered the filing procedure set forth in § 14-813 when it enacted Omaha Mun. Code § 26-121. Glasson argues that the city council altered the process by omitting the 20-day filing requirement set forth in § 14-813. Section 26-121 of the Omaha Municipal Code provides in part:

Any person who has filed a written complaint before the board of equalization shall have the right to appeal to the district court of the county within which such city is located, by filing a good and sufficient bond in the sum of not less than $ 50.00 and not more than double the amount of the assessment complained of, conditioned for the faithful prosecution of such appeal, and, if the judgment of special assessment is sustained, to pay the amount of such judgment, interest and cost. Such bond shall be approved and appeal taken as specified in R.R.S. 1943, § 14-813, as amended.

Glasson fails to account for the fact that the language of the municipal code specifically states that "[s]uch bond shall be approved and appeal taken as specified in ... § 14-813...."⁵ This language requires that appellants adhere to the procedure outlined in § 14-813.

Under our jurisprudence, as a general rule, the word "shall" in a statute is considered mandatory and is inconsistent with the idea of discretion.⁶ Therefore, based on a plain reading of the statute, unless, as contemplated by Neb. Rev. Stat. § 14-101 (Cum. Supp. 2018) the Legislature or a city of the metropolitan class alters the procedure for a claimant or appellant to challenge a decision regarding an assessment, the procedure shall follow that which is specified in § 14-813.

Under the plain language of § 14-813, an appellant has 20 days from the date of the final order to "execute a bond to such city with sufficient surety to be approved by the clerk." According to § 14-547, the passage of "[t]he ordinance levying a special assessment shall be final and binding as the final order or judgment of a court of general jurisdiction." Therefore, the date of the final order in this case was January 23, 2018, the date the city council approved the ordinance.

Here, Glasson attempted to execute a bond with the city clerk on February 13, 2018, 21 days after the ordinance operating as a final order had passed. This court addressed a similar fact...