Glasson v. Board of Equal. of City of Omaha , 925 N.W.2d 672 ( 2019 )


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    04/12/2019 09:07 AM CDT
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
    Cite as 
    302 Neb. 869
    Robert E. Glasson, appellant, v.
    Board of Equalization of the
    City of Omaha and the City
    of Omaha, appellees.
    ___ N.W.2d ___
    Filed April 12, 2019.     Nos. S-18-472, S-18-474.
    1.	 Judgments: Jurisdiction: Appeal and Error. 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 indepen-
    dent of the decision made by the lower court.
    2.	 Special Assessments: Municipal Corporations: Appeal and Error.
    An appeal from a special assessment by a metropolitan-class city taken
    as specified in Neb. Rev. Stat. § 14-813 (Reissue 2012) 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.	 Statutes: Special Assessments: Words and Phrases: Appeal and
    Error. As a general rule, the word “shall” in a statute is considered
    mandatory and is inconsistent with the idea of discretion. Therefore,
    based on a plain reading of the statute, unless, as contemplated by Neb.
    Rev. Stat. § 14-101 (Reissue 2012), 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 Neb. Rev. Stat. § 14-813 (Reissue 2012).
    4.	 Statutes: Appeal and Error. When a provision of a statute is plain and
    unambiguous on its face, an appellate court must apply the provision
    as written.
    Appeals from the District Court for Douglas County: W.
    Russell Bowie III, Judge. Affirmed.
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
    Cite as 
    302 Neb. 869
    Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz &
    Conway, P.C., L.L.O., 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 juris-
    diction 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 equaliza-
    tion on December 5, 2017, to protest the proposed special
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
    Cite as 
    302 Neb. 869
    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 con-
    solidated 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
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
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    302 Neb. 869
    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 con-
    solidated 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 dismiss-
    ing 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
    [1] 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
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
    2
    Pestal v. Malone, 
    275 Neb. 891
    , 
    750 N.W.2d 350
    (2008).
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
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    302 Neb. 869
    [2] An appeal from a special assessment by a metropolitan-
    class city taken as specified in § 14-813 means that proceed-
    ings 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 lan-
    guage 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 sub-
    stantially 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
    3
    See Jackson v. Board of Equal. of City of Omaha, 
    10 Neb. Ct. App. 330
    , 
    630 N.W.2d 680
    (2001).
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
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    302 Neb. 869
    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.
    [3] 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 read-
    ing of the statute, unless, as contemplated by Neb. Rev. Stat.
    4
    Omaha Mun. Code, ch. 26, art. II, § 26-121 (1980).
    5
    Id.
    6
    State v. Irish, 
    298 Neb. 61
    , 65, 
    902 N.W.2d 669
    , 672 (2017).
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    GLASSON v. BOARD OF EQUAL. OF CITY OF OMAHA
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    § 14-101 (Cum. Supp. 2018) the Legislature or a city of the
    metropolitan class alters the procedure for a claimant or appel-
    lant to challenge a decision regarding an assessment, the proce-
    dure 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 levy-
    ing 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 operat-
    ing as a final order had passed. This court addressed a similar
    fact pattern in Black v. State,7 in which we stated, “‘[T]he
    filing of an approved bond is a jurisdictional requirement. Its
    filing is a condition precedent to the initiation of the appel-
    late process.’”
    In Black, the appellant, William Black, appealed an order
    of the director of the Department of Motor Vehicles regarding
    an implied consent proceeding which resulted in revocation
    of his driver’s license for 1 year. According to the statute in
    Black, the applicant, licensee, or appellant was required to
    execute a bond within 20 days from the date of the final order
    complained of, with costs to the State of Nebraska in the sum
    of $200 with sufficient surety to be approved by the auditor of
    public accounts.
    Black’s attorney sent a check, drawn on the trust account
    of the attorney’s firm, to the director of the department. The
    department then notified Black’s attorney that it could not
    accept a cash bond and that a surety bond had to be filed within
    20 days after the license revocation date. Black then executed
    a surety bond to the department; however, we noted that the
    
    7 Black v
    . State, 
    218 Neb. 572
    , 575, 
    358 N.W.2d 181
    , 183 (1984).
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    bond was not received until 21 days after the revocation. As
    a result of Black’s failure to file within the prescribed manner
    and time limits, we found that the district court properly dis-
    missed his petition for lack of subject matter jurisdiction.
    [4] When a provision of a statute is plain and unambiguous
    on its face, this court must apply the provision as written.8
    Here, § 14-813, even when read together with Omaha Mun.
    Code § 26-121, is plain and unambiguous on its face. Glasson
    was required to execute a bond to the City of Omaha, with
    sufficient surety to be approved by the clerk, within 20 days
    after the date of the order complained of. Glasson, like Black,
    failed to file within the allotted time.
    Indigent Status and Filing
    Requirements.
    Glasson next argues, for the first time on appeal, that no
    bond is required on the basis that an indigent party need not
    file a bond. The record does not demonstrate that Glasson even
    attempted to follow the procedure for the waiver of the bond
    based on indigent status, nor does Glasson argue here that
    he qualifies for such status. Therefore, we need not address
    this argument.
    Notice.
    Glasson also argues that the City of Omaha did not provide
    him with adequate notice of its ultimate decision concern-
    ing the assessments. Glasson contends that the city council
    passed the ordinance for the special assessments on January
    23, 2018, at which point it became a final, appealable order,
    but that he was not given notice of the decision until on or
    about February 8, when he received notice from the Douglas
    County treasurer dated February 6, 2018. Glasson asserts
    that the government’s failure to provide notice of the deci-
    sion deprived him of the 20-day period in which to file, but
    8
    See State v. Havorka, 
    218 Neb. 367
    , 
    355 N.W.2d 343
    (1984).
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    302 Neb. 869
    specified in his briefs the basis of his arguments regarding
    notice. During oral argument of this case, Glasson raised for
    the first time his contention that his statutory right to notice
    by mail, as provided in the Omaha Municipal Code,9 was vio-
    lated in this case.
    The record refutes Glasson’s claim that he lacked notice of
    the City of Omaha’s intended action. As the district court noted
    in its order dismissing Glasson’s consolidated appeal, Glasson
    filed his first appeal on January 3, 2018, following the board of
    equalization’s December 5, 2017, decision denying his protest
    to the proposed assessments. Moreover, Glasson was present at
    the December meeting and was given an opportunity to protest
    the special assessments. Additionally, there is no indication
    in the briefs or in the record that public notice of the Omaha
    City Council’s January 23 meeting was not given according to
    statute.10 The record demonstrates that Glasson was provided
    notice of the assessments by the Douglas County treasurer’s
    office prior to the expiration of the 20 days.
    As for Glasson’s contention that he did not receive notice
    by mail, we observe that this issue was not raised below. As
    such, the issue is not appropriately before this court and we
    need not address it further.
    Glasson’s assignment of error is without merit.
    CONCLUSION
    The statutory scheme requires that an appellant execute
    a bond with the city clerk within 20 days of the final order,
    which Glasson did not do. The decision of the district court
    dismissing Glasson’s consolidated appeal for lack of jurisdic-
    tion is affirmed.
    A ffirmed.
    9
    See Omaha Mun. Code, ch. 26, art. II, § 26-123 (1980).
    10
    See § 14-547.