Community Redev. Auth. v. Gizinski

vehicle into the calculus of proximate cause and efficient inter-
vening cause, I can only conclude that even if the State was
negligent in its signing of the intersection, such was not a prox-
imate cause, and that even if it could be considered a proximate
cause, Podoll’s negligence (and he can be no less negligent than
Ostergard) combined with the negligence of Robert Johnson
constitute efficient intervening causes. My colleagues advance
three reasons why the fact that Robert Johnson turned left in
front of the Podoll vehicle is not properly part of the analysis
of the accident. I acknowledge that the State, while pleading
such fact as a proximate cause and as an efficient intervening
cause, did not actually advance such argument in the trial court.
Nonetheless, that Robert Johnson turned left in front of Podoll
is an undisputed fact about how the accident occurred, which,
in my view, neither a trial court nor an appellate court can
ignore merely because defense counsel may not have grasped
its significance.
For these reasons, I would reverse all of the judgments
entered in these two cases against the State and remand the
matter to the trial court with directions to enter judgments in
favor of the State and against each of the plaintiffs.
C ommunity R edevelopment A uthoRity of the C ity of
hAstings , nebRAskA, A muniCipAl CoRpoRAtion , And
C ity of hAstings , nebRAskA, A muniCipAl CoRpoRAtion ,
Appellees And CRoss -AppellAnts , v . pAtRiCiA gizinski ,
A dAms C ounty AssessoR, et Al ., AppellAnts
And CRoss -Appellees .
745 N.W.2d 616
Filed March 4, 2008. 	No. A-06-075.
1. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
2. ____. Although an appellate court ordinarily considers only those errors
assigned and discussed in the briefs, the appellate court may, at its option, notice
plain error.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the power and duty of an appellate court to determine whether it has
504 	16 NeBRASkA APPellATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

jurisdiction over the matter before it, irrespective of whether the issue is raised by
the parties.
4. ____: ____. When a lower court lacks the authority to exercise its subject matter
jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate
court also lacks the power to determine the merits of the claim, issue, or question
presented to the lower court.
5. Taxation: Valuation. A property owner’s exclusive remedy for relief from
overvaluation of property for tax purposes is by protest to the county board
of equalization.
6. Appeal and Error: Words and Phrases. Plain error is error plainly evident from
the record and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
7. Mandamus: Words and Phrases. Mandamus is a law action and is defined as an
extraordinary remedy, not a writ of right, issued to compel the performance of a
purely ministerial act or duty, imposed by law upon an inferior tribunal, corpora-
tion, board, or person, where (1) the relator has a clear right to the relief sought,
(2) there is a corresponding clear duty existing on the part of the respondent to
perform the act, and (3) there is no other plain and adequate remedy available in
the ordinary course of law.
8. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
Appeal 	from 	the 	District 	Court 	for 	Adams 	County:
stephen illingwoRth, Judge. Affirmed.
Charles 	A. 	Hamilton, 	Deputy 	Adams 	County 	Attorney,
for appellants.
Robert M. Sullivan for appellees.
iRwin , sieveRs, and mooRe, Judges.
mooRe, Judge.
INTRODUCTION
Patricia Gizinski, the Adams County assessor; Julia Moeller,
the Adams County treasurer; and Adams County, Nebraska
(collectively the County), appeal from the declaratory judgment
and writ of mandamus entered against them in favor of the
Community Redevelopment Authority of the City of Hastings,
Nebraska, and the City of Hastings (collectively the Authority)
by the district court for Adams County. The district court
entered a declaratory judgment, finding that the redevelopment
project valuation for certain property should have been set
at $32,500, and issued a writ of mandamus directing the
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county assessor to transmit that value as of January 1, 2000,
to the Authority and the county treasurer in accordance with
Nebraska’s Community Development law, Neb. Rev. Stat.
§ 18-2101 et seq. (Reissue 1997 & Cum. Supp. 2004). The
County appeals, and the Authority cross-appeals. For the rea-
sons set forth herein, we affirm.
BACkGROUND
General Information.
We first set forth some general information in order to pro-
vide a context for the dispute in the present case. Neb. Const.
art. vIII, § 12, provides in part:
For the purpose of rehabilitating, acquiring, or redevel-
oping substandard and blighted property in a redevelop-
ment project . . . any city or village of the state may . . .
incur indebtedness, whether by bond, loans, notes, advance
of money, or otherwise. . . . [S]uch cities or villages may
also pledge for and apply to the payment of the principal,
interest, and any premium on such indebtedness all taxes
levied by all taxing bodies . . . on the assessed valuation
of the property in the project area portion of a designated
blighted and substandard area that is in excess of the
assessed valuation of such property for the year prior to
such rehabilitation, acquisition, or redevelopment.
In State ex rel. Scoular Prop. v. Bemis, 242 Neb. 659, 660-61,
496 N.W.2d 488, 489 (1993), the Nebraska Supreme Court dis-
cussed the implementation of that section of the Constitution:
To implement that section of the Constitution, the
legislature enacted the Community Development law,
Neb. Rev. Stat. §§ 18-2101 et seq. (Reissue 1991). That
Act provides in substance that upon approval of a redevel-
opment plan, the developer’s cost of reconstruction and
redevelopment of the specific property may be financed
by the issuance of bonds by the particular city involved.
Upon request, the county assessor is to transmit a rede-
velopment valuation of the property equal to the assessed
valuation for the year immediately preceding the effective
date of the redevelopment plan. Following the redevelop-
ment, the developer agrees to pay taxes on the basis of the
506 	16 NeBRASkA APPellATe RePORTS

assessed valuation of the property resulting from the rede-
velopment, and the difference between the taxes which
would have been paid on the pre-redevelopment valuation
and the taxes paid on the post-redevelopment valuation, is
paid into a special fund to be used to repay the principal
and interest on the bonds so issued.
(emphasis omitted.)
Specifically at issue in the present case is Neb. Rev. Stat.
§ 18-2148 (Reissue 1997), which defines the duties of the
county assessor with respect to the valuation of redevelop-
ment property:
Commencing on the effective date of the provision out-
lined in section 18-2147, the county assessor, or county
clerk where he or she is ex officio county assessor, of
the county in which the redevelopment project is located,
shall transmit to an authority and the county treasurer,
upon request of the authority, the redevelopment project
valuation and shall annually certify to the authority and
the county treasurer the current valuation for assessment
of taxable real property in the redevelopment project.
The county assessor shall undertake, upon request of an
authority, an investigation, examination, and inspection of
the taxable real property in the redevelopment project and
shall reaffirm or revalue the current value for assessment
of such property in accordance with the findings of such
investigation, examination, and inspection.
“Redevelopment project valuation” is defined as “the valuation
for assessment of the taxable real property in a redevelopment
project last certified for the year prior to the effective date of
the provision authorized in section 18-2147.” § 18-2103(21).
Crosier Redevelopment Project.
On or about January 8, 2001, the Hastings City Council passed
and approved a resolution which authorized the Authority to
take the actions necessary to implement a redevelopment proj-
ect known as the Crosier Redevelopment Project. The Crosier
Redevelopment Project is a project involving the use of tax
increment financing pursuant to the Community Development
law and the redevelopment plan approved by the city council.
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The Authority entered an allocation agreement, providing for
payment of debt by the Authority utilizing these funds. The
redevelopment plan approved by the city council provided that
the effective date of the project would be January 1, 2002, and
that the redevelopment project valuation date would accordingly
be January 1, 2001. On or about April 23, 2001, the city coun-
cil passed a resolution, approving an amended redevelopment
project plan, which amended plan changed the effective date of
the project to January 1, 2001, and the redevelopment project
valuation date to January 1, 2000. In May 2001, the Authority
notified the county assessor’s office concerning the Crosier
Redevelopment Project and requested that the county assessor
certify the redevelopment project valuation in accordance with
§ 18-2148. On May 1, 2002, the county assessor acknowledged
that the taxable value for the property in question for 2000
was $0 because “‘it was tax exempt property belonging to
Crosier’s, a nonprofit entity.’” On May 2, the county assessor
issued a certificate as to the redevelopment project valuation for
January 1, 2000, in the amount of $614,440. On June 1, 2002,
the county assessor’s office changed the redevelopment project
valuation to $900,475.
Procedural History.
On October 15, 2003, the Authority filed a complaint for
declaratory judgment and writ of mandamus. The Authority
alleged, among other things, that without the correct certifi-
cation of the redevelopment project valuation by the county
assessor, the Authority would not be able to collect tax incre-
ment funds as allowed under the Community Development
law. The Authority alleged that despite demand upon the
county assessor that the redevelopment project valuation be
properly set at $0, the county assessor had failed to make the
proper certification as required by law. The Authority alleged
that certification of the correct redevelopment project valuation
was a purely ministerial action and that the refusal to make
such certification was arbitrary, capricious, and contrary to the
law. The Authority sought an order declaring what the rede-
velopment project valuation properly should be and a writ of
mandamus compelling the county assessor to show cause why
508 	16 NeBRASkA APPellATe RePORTS

she had not properly certified the valuation on or before a date
to be set by the court.
The Authority filed a motion for summary judgment on April
9, 2004, and the County filed a motion for partial summary
judgment on May 3. On May 14, an evidentiary hearing was
held on the summary judgment motions, and on July 29, the
district court entered an order making certain findings of fact
and conclusions of law but overruling the motions for sum-
mary judgment. The court, relying on the Nebraska Supreme
Court’s ruling in State ex rel. Scoular Prop. v. Bemis, 242 Neb.
659, 496 N.W.2d 488 (1993), found that the property did have
a value and that the county assessor accordingly complied
with her lawful duty to set a value. The district court also
ruled that “additional evidence [was] required to make a cor-
rect finding as to the property’s value of either $614,440.00
or $900,47[5].00.”
Trial was held before the district court on April 13, 2005.
In addition to the facts set forth above, the testimony and
evidence at trial showed that the property in question, known
as the Crosier Monastery, was purchased in January 2001 for
$32,500, by an entity in which Thomas lauvetz is the general
partner. evidence was presented to indicate that at the time
of purchase, the property had no value on the real estate mar-
ket. Other evidence was presented to indicate that the price of
$32,500 for the real estate was an appropriate and fair price,
based upon an arm’s-length transaction. The main building on
the property was built in 1889, with the addition of a chapel
and two sleeping wings in 1961. At the time of trial, the chapel
was being leased to the Catholic Diocese of lincoln. evidence
was presented regarding the building’s numerous drawbacks and
defects, including evidence that the cost to bring the building
into full code compliance was $2 million. lauvetz testified that
he made numerous improvements to the property, at a cost of
$1.3 million, and, while the exact timing of these improvements
is somewhat unclear from the record, the record reflects that
these improvements would have been made after the January
1, 2000, valuation date set forth in the amended redevelopment
project plan.
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The last valuation certified by the county assessor’s office
was based on an appraisal of $900,475 by Darrel Stanard, a
licensed appraiser. Stanard testified that the $614,440 value
was attributed solely to the church or chapel on the property
and was derived using appraisal software and manuals, based
on the square footage, building costs, and depreciation. Stanard
testified that the $900,475 value included the land, church, and
the rest of the building to which the church is connected. This
appraisal was an attempt to determine the value of the property
for 2001, and included at least some of the improvements made
by lauvetz.
On November 1, 2005, the district court entered a declara-
tory judgment setting the value of the property at $32,500 and
issued a writ of mandamus, requiring the county assessor to
transmit such value in accordance with Nebraska’s Community
Development law. With respect to the valuation, the district
court noted that it did not have evidence before it at the time
of its summary judgment order as to the true condition of the
building and that based upon the trial evidence, the correct
redevelopment project valuation as of January 1, 2000, was
$32,500. The court stated that $32,500 was “[t]he only value
that actually makes sense and has any relation to true market
value at the time.” The court rejected the Authority’s requested
valuation of $0, relying on the Nebraska Supreme Court’s
analysis in State ex rel. Scoular Prop. v. Bemis, 242 Neb. 659,
496 N.W.2d 488 (1993), and concluded that the property could
not have a value of $0 based solely on its previous exempt sta-
tus. The district court also discussed and rejected the County’s
requested valuation of $900,475, based upon certain inadequa-
cies in Stanard’s appraisal identified by the court, stating that
the County had requested a valuation that had “no relation to
actual market value or logic.”
The district court addressed the County’s argument that
it did not have subject matter jurisdiction and that the case
should have been brought first to the Adams County Board of
equalization and subsequently appealed to the Tax equalization
and Review Commission (TeRC). The court concluded that
because there is no appeal process included in the statu-
tory scheme for Nebraska’s Community Development law, a
510 	16 NeBRASkA APPellATe RePORTS

mandamus action is an appropriate remedy. Finally, the district
court noted the requirements of a writ of mandamus and found
that the requirements had been met in this case.
The County filed a motion for new trial, which was over-
ruled by the district court on December 14, 2005. Subsequently,
the County perfected its appeal to this court, and the Authority
perfected its cross-appeal.
ASSIGNMeNTS OF eRROR
[1,2] In its brief, the County did not separately assign error
as required by Neb. Ct. R. of Prac. 9D(1)(e) (rev. 2006), which
requires a separate section for assignments of error, designated
as such by a heading, and requires that the section be located in
the sequence specified by rule 9D(1)—after a statement of the
case and before a list of controlling propositions of law. To be
considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. City of Gordon v. Montana Feeders,
Corp., 273 Neb. 402, 730 N.W.2d 387 (2007). Although an
appellate court ordinarily considers only those errors assigned
and discussed in the briefs, the appellate court may, at its
option, notice plain error. Linch v. Northport Irr. Dist., 14 Neb.
App. 842, 717 N.W.2d 522 (2006). In the interest of fairness,
we have reviewed the record for plain error.
On cross-appeal, the Authority asserts that the district court
erred when it failed to amend its final order to show that the
county assessor was required to transmit a value of $5,735
upon receipt of exhibit 16 during the hearing on the motion for
new trial.
ANAlySIS
Jurisdiction.
[3,4] 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. Chase 3000, Inc.
v. Nebraska Pub. Serv. Comm., 273 Neb. 133, 728 N.W.2d 560
(2007). When a lower court lacks the authority to exercise its
subject matter jurisdiction to adjudicate the merits of a claim,
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issue, or question, an appellate court also lacks the power to
determine the merits of the claim, issue, or question presented
to the lower court. Id. Accordingly, before turning to our plain
error analysis, we first examine the County’s assertion that the
district court did not have jurisdiction in this case.
[5] The County argues that the matter of the redevelopment
property valuation should have been brought first before the
Adams County Board of equalization and then appealed to
the TeRC. Neb. Rev. Stat. § 77-1501 (Cum. Supp. 2006) cur-
rently provides, in part, that “[t]he county board of equalization
shall fairly and impartially equalize the values of all items of
real property in the county so that all real property is assessed
uniformly and proportionately.” Among other things, Neb. Rev.
Stat. § 77-5007 (Supp. 2007) currently provides:
The [TeRC] has the power and duty to hear and deter-
mine appeals of:
(1) Decisions of any county board of equalization equal-
izing the value of individual tracts, lots, or parcels of real
property so that all real property is assessed uniformly
and proportionately;
. . . .
(10) 	Any 	other 	decision 	of 	any 	county 	board
of equalization.
The County notes that the Nebraska Supreme Court has stated
that a property owner’s exclusive remedy for relief from over-
valuation of property for tax purposes is by protest to the county
board of equalization. Bartlett v. Dawes Cty. Bd. of Equal.,
259 Neb. 954, 613 N.W.2d 810 (2000). However, in the pres-
ent case, the valuation was not for tax purposes, but, rather,
for purposes of obtaining tax increment financing under the
Community Development law. Furthermore, the Authority is
not the property owner.
The present case is similar to State ex rel. Scoular Prop. v.
Bemis, 242 Neb. 659, 496 N.W.2d 488 (1993). In that case, a
private corporation purchased certain real property, which had a
previous assessed valuation of $0 and was classified as exempt
because it had been owned by a public service entity. The
corporation entered into a redevelopment agreement with the
City of Omaha, Nebraska, and as the final step in obtaining tax
512 	16 NeBRASkA APPellATe RePORTS

increment financing, the city requested that the county assessor
transmit to the city and to the county treasurer the redevelopment
project valuation. Upon receiving the request, the county in that
case had an appraiser inspect the property who recommended a
valuation of $1,360,000, which value was adopted by the county
as the figure for the previous year for the base redevelopment
valuation. A mandamus action was then initiated to force the
county to transmit a $0 valuation, which the relator contended
was required by § 18-2148. On appeal, the Nebraska Supreme
Court found, among other things, that the previous $0 valuation
resulted from the fact that the property had been exempt and
should have alerted the relator that it was not entitled to rely
on that valuation. The court determined that the county assessor
had complied with the duty to furnish the redevelopment project
valuation and that the trial court had thus been correct in refus-
ing to grant the requested writ of mandamus.
The State ex rel. Scoular Prop. case was decided before the
creation of the TeRC, but we see nothing in the statutes relat-
ing to the TeRC or in the Community Development law itself
to indicate that a mandamus action is no longer an appropriate
remedy for an authority that believes that a county assessor has
not complied with his or her duty under § 18-2148 to transmit
a redevelopment project valuation. There is no provision in
the Community Development law requiring a hearing before
a board of equalization and then an appeal to the TeRC when
a county assessor has allegedly failed in this duty. We find no
error in the district court’s conclusion that a mandamus action
was an appropriate remedy in this case.
Plain Error Analysis.
[6] Although the County did not specifically assign errors in
its appeal to this court, we have reviewed the record for plain
error. Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. Linch v. Northport Irr. Dist., 14 Neb. App. 842, 717
N.W.2d 522 (2006).
[7] We find no plain error in the district court’s determina-
tion that a writ of mandamus was appropriate or in the court’s
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Cite as 16 Neb. App. 504

declaration of the value to be transmitted. Mandamus is a law
action and is defined as an extraordinary remedy, not a writ of
right, issued to compel the performance of a purely ministerial
act or duty, imposed by law upon an inferior tribunal, corpora-
tion, board, or person, where (1) the relator has a clear right to
the relief sought, (2) there is a corresponding clear duty existing
on the part of the respondent to perform the act, and (3) there
is no other plain and adequate remedy available in the ordinary
course of law. State ex rel. Upper Republican NRD v. District
Judges, 273 Neb. 148, 728 N.W.2d 275 (2007). See, generally,
State ex rel. Scoular Prop. v. Bemis, 242 Neb. 659, 496 N.W.2d
488 (1993) (finding that “clear duty” existed under § 18-2148
on part of county assessor to transmit upon request redevelop-
ment project valuation). The district court did not commit plain
error in finding that the assessor failed to comply with the legal
duty to transmit a value for the property as of January 1, 2000,
the project valuation date.
The district court did not commit plain error in the issuance
of a writ of mandamus, directing the county assessor to com-
ply with her statutory duty and to transmit a value of $32,500
in accordance with Nebraska’s Community Development law.
The property at issue in this case is very unique, and based upon
the facts of this case and our review for plain error, we find no
error plainly evident from the record and of such a nature that
to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.
We have also reviewed for plain error the district court’s
consideration of valuation evidence beyond the two valuations
noted in its summary judgment order of either $614,440 or
$900,475, and we find no error in the receipt of such valua-
tion evidence.
Authority’s Cross-Appeal.
[8] On cross-appeal, the Authority asserts that the district
court erred when it failed to amend its final order to show that
the county assessor was required to transmit a value of $5,735
upon receipt of exhibit 16, an affidavit of lauvetz, during
the hearing on the motion for new trial. There is nothing in
the record to show that the Authority actually sought such a
514 	16 NeBRASkA APPellATe RePORTS

decision from the district court. The motion for new trial was
filed by the County. At the hearing on the County’s motion,
counsel for the Authority offered exhibit 16, indicated that the
Authority was satisfied with the decision of the district court,
and argued:
I did submit an affidavit of . . . lauvetz to indicate that
we’ve subsequently learned for the tax year 2000, which
was the initial tax year in question here, that the county
had placed a value on the property, $5,735. . . . lauvetz
had recently sold the property and had to pay taxes based
on that amount for the year 2000 in order to clear title
for passage of the property to the new owner. And so if
the Court does order a new trial, we intend to show this
further, in additional evidence which we believe supports
the Court’s original decision even further.
An appellate court will not consider an issue on appeal that was
not presented to or passed upon by the trial court. Pohlmann v.
Nebraska Dept. of Health & Human Servs., 271 Neb. 272, 710
N.W.2d 639 (2006). Because the issue of whether the assessor
should have transmitted a redevelopment project valuation of
$5,735 was not presented to the district court for decision, it
is not appropriate for this court to resolve that issue on appeal.
The Authority’s cross-appeal is without merit.
CONClUSION
We find no plain error in the district court’s declaratory judg-
ment and writ of mandamus entered in favor of the Authority.
We make no determination with regard to the Authority’s
cross-appeal, because the issue raised was not presented to the
district court for determination.
A ffiRmed .
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