Darnall Ranch v. Banner Cty. Bd. of Equal.

Darnall ranch , I nc., appellant, v. Banner county
BoarD of equalIzatIon, appellee .
789 N.W.2d 26
Filed October 1, 2010. 	Nos. S-09-1246 through S-09-1251.
1. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate review
of Tax Equalization and Review Commission decisions are reviewed de novo on
the record.
4. Jurisdiction: Appeal and Error. 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.
Appeals from the Tax Equalization and Review Commission.
Reversed and vacated.
Robert M. Brenner, of Robert M. Brenner Law Office, for
appellant.
James 	L. 	Zimmerman, 	Banner 	County 	Attorney, 	for
appellee.
heavIcan, 	c.J., 	WrIght, 	connolly, 	gerrarD, 	Stephan,
MccorMack , and MIller-lerMan, JJ.
heavIcan, c.J.
INTRODUCTION
The Banner County assessor set the 2005 valuation on certain
parcels of property owned by Darnall Ranch, Inc. (DRI). DRI
protested those valuations. At a hearing, the Banner County
Board of Equalization (Board) agreed with the valuations
placed on the properties. DRI appealed to the Tax Equalization
and Review Commission (TERC). Meanwhile, in a separate
case, the Nebraska Court of Appeals voided the valuations,1
1 Wolf v. Grubbs, 17 Neb. App. 292, 759 N.W.2d 499 (2009).
DARNALL RANCh v. BANNER CTy. BD. OF EQUAL. 	655
Cite as 280 Neb. 655
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

concluding that the Board violated the Open Meetings Act
(Act).2 TERC overruled the Board’s motion to dismiss based on
the Court of Appeals’ action and, following a hearing, affirmed
the county assessor’s valuations for three parcels, and reversed
the county assessor’s valuations and set new values for the
remaining three parcels. DRI appeals.
BACKGROUND
DRI operates a ranch in Banner County, Nebraska. At issue
on appeal are six parcels of land owned by DRI. In each
instance, the parcel was valued by the county assessor for
the 2005 tax year and that valuation was protested by DRI.
And in each instance, a hearing was held before the Board
regarding that protest, with the Board rejecting the protest and
adopting the county assessor’s valuation. DRI then appealed
to TERC.
While DRI’s appeal to TERC was pending, a separate suit
against the Board was proceeding in the Banner County District
Court regarding alleged violations of the Act by the Board. And
in Wolf v. Grubbs,3 the Nebraska Court of Appeals concluded
that the Board had committed violations of the Act and voided
all valuations set at meetings which violated the Act, including
valuations on the parcels owned by DRI which are at issue in
this case.
After the decision in Wolf, the Board filed a motion to dis-
miss DRI’s appeal. DRI objected. TERC concluded that it had
jurisdiction over the appeals and overruled the Board’s motion.
Following a hearing on all six parcels at issue, TERC issued
opinions upholding the county assessor’s valuation with respect
to three parcels and reversing the county assessor’s valuation
and setting a new value on the other three parcels. DRI appeals
with respect to all six parcels.
ASSIGNMENTS OF ERROR
On appeal, DRI assigns, consolidated and restated, that
TERC erred in (1) concluding it had jurisdiction and therefore
2 See Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 2008 & Supp. 2009).
3 Wolf v. Grubbs, supra note 1.
656 	280 NEBRASKA REpORTS

denying the motions to dismiss, (2) applying an incorrect stan-
dard of review, (3) holding that DRI had been given valid notice
of the decision of the Board, (4) the valuations of its property,
and (5) not taxing the costs of the action against the Board.
In addition, DRI contends that Neb. Rev. Stat. § 77-5007(13)
(Reissue 2009)4 is unconstitutional.
STANDARD OF REVIEW
[1-3] Appellate courts review decisions rendered by TERC
for errors appearing on the record.5 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.6 Questions of law arising during appellate review
of TERC decisions are reviewed de novo on the record.7
ANALySIS
DRI first contends that TERC erred by not dismissing its
appeals for a lack of jurisdiction after the Court of Appeals’
decision 	in 	Wolf. 	We 	agree 	with 	DRI 	that 	TERC 	lacks
jurisdiction.
[4] As an initial matter, we note that DRI opposed the
Board’s motion to dismiss for lack of jurisdiction before TERC,
but now argues that, in fact, TERC did lack jurisdiction. But
because this court must determine whether it has jurisdiction
over this appeal before it reaches the legal issues presented for
review,8 DRI’s change of position is immaterial.
In concluding that it had jurisdiction subsequent to the Court
of Appeals’ decision in Wolf, TERC relied upon this court’s
1883 decision in Sumner & Co. v. Colfax County.9 In Sumner
& Co., this court held that the failure to act on a property
4 See 2010 Neb. Laws, L.B. 877, § 7.
5 Fort Calhoun Bapt. Ch. v. Washington Cty. Bd. of Eq., 277 Neb. 25, 759
N.W.2d 475 (2009).
6 Id.
7 Id.
8 See Carmicheal v. Rollins, ante p. 59, 783 N.W.2d 763 (2010).
9 Sumner & Co. v. Colfax County, 14 Neb. 524, 16 N.W. 756 (1883).
DARNALL RANCh v. BANNER CTy. BD. OF EQUAL. 	657
Cite as 280 Neb. 655

owner’s protest was for all “practical intents and purposes a
denial and rejection of the . . . application.”10 TERC reasoned
that because the Board’s original decisions had been voided,
and because the Board could no longer hear DRI’s 2005 pro-
tests,11 it was as though the Board had failed to hear DRI’s
protests at all. And under Sumner & Co., such inaction was a
rejection of DRI’s protests.
On appeal, the Board now agrees that TERC had jurisdic-
tion under Sumner & Co., while DRI contends that TERC
lacks jurisdiction. DRI argues that the relevant language from
Sumner & Co. is dicta and contrary to this court’s decision in
Falotico v. Grant Cty. Bd. of Equal.12 We held in Falotico that
an increase in property valuation was void where the county
clerk failed to give notice to the taxpayers within the statutorily
required 7 days after the board made its decision. Because the
increase was void, the property valuation reverted back to the
previous year’s valuation.
We disagree with TERC’s conclusion that Sumner & Co. is
applicable in this case. Sumner & Co. dealt with the inaction
of a county board. In this case, though, the county board did
act. But because of the violations of the Act, those actions were
later declared void.
We instead conclude that Falotico governs situations such
as the one presented, where a county board’s action is void. In
Falotico, we noted that compliance with the notice provision
at issue was necessary to provide a property owner with the
process due under the statutes and that where a board’s actions
were void, TERC lacked jurisdiction over the property owner’s
appeal. In such circumstances, we further noted, any increase
in a property valuation was similarly voided.
In the same way that the property owner’s right to process
and the protections offered therein was violated in Falotico,
DRI’s right to the protections of the Act was violated in this
case. Therefore, in conformity with Falotico, we conclude that
10 Id. at 525, 16 N.W. at 756.
11 See Neb. Rev. Stat. § 77-1502 (Reissue 2009).
12 Falotico v. Grant Cty. Bd. of Equal., 262 Neb. 292, 631 N.W.2d 492
(2001).
658 	280 NEBRASKA REpORTS

TERC lacks jurisdiction over DRI’s appeal as a result of the
Board’s failure to comply with the Act. As such, DRI’s 2005
valuations are voided and revert to the valuations placed on the
property at issue in 2004. We therefore reverse TERC’s deci-
sions in this case, vacate the decision of the Board denying
DRI’s protests, and declare as void the actions of the county
assessor increasing the valuations of the subject properties for
the purposes of taxation as of January 1, 2005.
CONCLUSION
Because TERC lacks jurisdiction over these appeals, we
reverse TERC’s decisions, vacate the decisions of the Board,
and void the 2005 valuations of DRI’s properties.
reverSeD anD vacateD.
State of neBraSka , appellee , v. aprIl DInSlage ,
alSo knoWn aS aprIl cleary, appellant.
789 N.W.2d 29
Filed October 1, 2010. 	No. S-10-252.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Sentences: Probation and Parole. Whether a condition of probation imposed by
the sentencing court is authorized by statute is a question of law.
3. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence. Such matters are for
the finder of fact.
4. Drunk Driving: Blood, Breath, and Urine Tests: Proof. The State is not
required to prove a temporal nexus between a breath test and the defendant’s
alcohol level at the moment he or she was operating the vehicle.
5. ____: ____: ____. Matters of delay between driving and testing are properly
viewed as going to the weight of the breath test results, rather than to the admis-
sibility of the evidence.
6. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity
requires a court to resolve ambiguities in a penal code in the defendant’s
favor, the touchstone of the rule of lenity is statutory ambiguity, and where the
STATE v. DINSLAGE 	659
Cite as 280 Neb. 659