Cain v. Custer Cty. Bd. of Equal.

- 730 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

Donald V. Cain, Jr., appellant,
v. Custer County Board of
Equalization, appellee.
___ N.W.2d ___

Filed August 28, 2015. No. S-14-764.

 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 deci-
sion 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 appel-
late review of Tax Equalization and Review Commission decisions are
reviewed de novo on the record.
 4. Jurisdiction. A question of jurisdiction is a question of law.
 5. Appeal and Error. 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.
  6. ____. 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 integ-
rity, reputation, or fairness of the judicial process.
 7. 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.
 8. Statutes: Appeal and Error. An appellate court will not read into a
statute a meaning that is not there.
 9. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
10. Taxation: Statutes: Appeal and Error. The meaning of a statute
is a question of law, and a reviewing court is obligated to reach
 - 731 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

its conclusions independent of the determination made by the Tax
Equalization and Review Commission.
11. Statutes: Legislature: Presumptions. The Legislature is presumed to
know the general condition surrounding the subject matter of a legisla-
tive enactment, and it is presumed to know and contemplate the legal
effect that accompanies the language it employs to make effective
the legislation.
12. Constitutional Law: Rules of the Supreme Court: Notice: Statutes:
Appeal and Error. Strict compliance with Neb. Ct. R. App. P. § 2-109(E)
(rev. 2014) is required in order for an appellate court to consider a chal-
lenge to the constitutionality of a statute.
13. Taxation: Valuation: Presumptions: Proof. In protests before a county
board of equalization, the valuation by the assessor is presumed to be
correct. The burden of proof rests upon the taxpayer to rebut this pre-
sumption and to prove that an assessment is excessive.
14. Counties: Evidence. The standard generally applicable in proceedings
before county boards, including monetary disputes, is a preponderance,
or greater weight, of the evidence.
15. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.

Appeal from the Tax Equalization and Review Commission.
Reversed and remanded.
Patrick M. Heng and Lindsay E. Pedersen, of Waite, McWha
& Heng, and Steven P. Vinton, of Bacon & Vinton, L.L.C.,
for appellant.
Steven R. Bowers, Custer County Attorney, and Glenn A.
Clark for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
I. NATURE OF CASE
In 2012, the Custer County assessor (Assessor) increased
the assessed value of property owned by Donald V. Cain,
Jr., from $734,968 to $1,834,925. Cain challenged this valu-
ation increase by filing petitions with the Tax Equalization
 - 732 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

and Review Commission (TERC) pursuant to Neb. Rev. Stat.
§ 77-1507.01 (Reissue 2009). A divided panel of two TERC
commissioners affirmed the Assessor’s increased valuations
for 2012, and Cain appeals. Because we find plain error in
the standard of review applied by TERC to Cain’s petitions,
we reverse the order of TERC which affirmed the Assessor’s
valuations and remand the cause for reconsideration on the
record using the preponderance, or greater weight, of the evi-
dence standard applicable to protests before a county board
of equalization.
II. SCOPE OF REVIEW
[1,2] Appellate courts review decisions rendered by TERC
for errors appearing on the record. Krings v. Garfield Cty.
Bd. of Equal., 286 Neb. 352, 835 N.W.2d 750 (2013). 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. Id.
[3,4] Questions of law arising during appellate review of
TERC decisions are reviewed de novo on the record. Id. A
question of jurisdiction is a question of law. Sherman T. v.
Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).
[5,6] 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. Connelly v. City of
Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012). 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. Id.
III. FACTS
Cain owns 10 contiguous parcels of land in Custer County,
Nebraska, which total over 1,093 acres. Approximately 70 per-
cent of the property, or 756 acres, is irrigated “native grass”
upon which Cain grazes cattle. The remainder of the property
is nonirrigated grassland.
 - 733 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

In 2012, as the result of a change in the way the Assessor
classified irrigated grassland for purposes of valuation, there
was a dramatic increase in the assessed value of the irrigated
portions of Cain’s property. The manner in which the Assessor
classified and valued the nonirrigated portions of his property
did not change. Almost entirely due to the change in valuation
of the irrigated grassland, the total assessed value of the par-
cels increased from $734,968 to $1,834,925.
In situations such as this, where there is a change in the
assessed value of real property, Neb. Rev. Stat. § 77-1315(2)
(Supp. 2011) requires the county assessor to send notice to the
property owners on or before June 1. But in the instant case, for
reasons that are not clear from the record, Cain never received
such notice. He did not learn of the change in assessed values
until November 2012, when he contacted the Assessor.
By the time Cain learned of the change in assessed values,
the deadline to file protests with the county board of equaliza-
tion pursuant to Neb. Rev. Stat. § 77-1502(1) (Cum. Supp.
2014) had passed. Consequently, he sought to challenge the
valuation increases pursuant to § 77-1507.01. This statute
provides that “on or before December 31,” a person may peti-
tion TERC “to determine the actual value or special value of
real property . . . if a failure to give notice prevented timely
filing of a protest or appeal provided for in sections 77-1501
to 77-1510.”
On December 28, 2012, Cain petitioned TERC to determine
the actual value of each parcel pursuant to § 77-1507.01.
He alleged that he had not received the notices of valuation
increase required by § 77-1315(2) and that he would have
filed valuation protests with regard to each parcel if he had
received the required notices. He claimed that the actual
value of the parcels was $778,625 and asked TERC to hold a
hearing to determine the actual value of his property for tax
year 2012.
TERC held two separate hearings on Cain’s petitions. On
each occasion, the hearing was held before commissioners
 - 734 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

Nancy J. Salmon and Thomas D. Freimuth. At the time of
these hearings, TERC had three commissioners, and two
commissioners constituted a quorum to transact business.
See Neb. Rev. Stat. §§ 77-5003(1) and 77-5005(2) (Cum.
Supp. 2014).
The first hearing was a “show cause hearing” to determine if
TERC had jurisdiction over Cain’s petitions. The jurisdictional
question was whether Cain was entitled to file his petitions
pursuant to § 77-1507.01. TERC determined (1) that Cain had
“provided sufficient evidence that the . . . Assessor failed to
provide proper notice as required by . . . section 77-1315”; (2)
that “this failure prevented [Cain] from timely filing protests by
June 30, 2012, under . . . section 77-1502”; and (3) that Cain
“had until December 31, 2012, to file appeals with [TERC]
concerning his tax valuations under . . . section 77-1507.01.”
Therefore, TERC concluded that it had jurisdiction to consider
Cain’s petitions.
At a hearing on the merits, Salmon and Freimuth heard evi-
dence that for purposes of valuation, the Assessor has divided
Custer County into five “market areas” based on her analysis
of real estate markets and recent sales. Market area 1 covers
the majority of Custer County and is the market area with the
highest average sale price. Within each market area, property
is classified according to a use category (irrigated, dryland,
grassland, canyon, Sandhills-type land, “frequently flooded,”
and waste) and a soil type (a numeric value between 1 and 4,
with 1 representing the highest quality). For each market area,
there is a standard value per acre for property of the same use
and soil type.
Cain’s property is located within market area 1 and has been
valued as part of that market area for some time. In terms of
use category, for tax year 2012, the Assessor classified the non-
irrigated portions of Cain’s property (approximately 337 acres)
as grassland and valued them between $495 and $505 per acre,
depending on soil type. The Assessor classified the irrigated
parts of his property (approximately 756 acres) as irrigated
 - 735 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

land. Almost 600 of these irrigated acres were valued at $2,100
per acre, because they were determined to have type “4A” soil,
which is the poorest quality. The remaining irrigated acres
were valued between $2,105 and $2,930 per acre, depending
on soil type.
Cain adduced evidence that the irrigated portions of his land
had been “inequitably classified” and valued. He presented tes-
timony that in 2012, the irrigated portions of his property were
valued similarly to irrigated cropland, but that his property
was not comparable to irrigated cropland in terms of soil type
or topography. He also presented testimony that his property
was located in market area 1 for purposes of valuation but that
because of the soil type, it was more comparable in value to the
property in market area 2 or area 3. Cain argued that a “more
equitable” way of valuing his property would be to lower its
assessed value to the level of the irrigated grassland in market
area 2 or area 3.
The Assessor explained how she classified Cain’s property.
She testified that Cain’s property had a different soil type than
the properties in market area 2, even though both had sandy
soils. She also testified that under the relevant statutes and
regulations, she was allowed to differentiate between parcels
of irrigated land according to soil type but not actual use of the
land and that, as a consequence, she could not treat irrigated
grassland differently than other irrigated land.
On July 31, 2014, Salmon entered an order on behalf of
TERC on the merits of Cain’s petitions. She first addressed
whether the lack of notice rendered the valuation increases
void. She stated that in prior cases, this court held that assess-
ments were void where there was a failure to provide the
required notice. But she concluded that these cases were
“supersede[d]” by the adoption of § 77-1507.01. She explained
as follows:
In cases concerning failures to provide sufficient notice,
the [Nebraska Supreme Court and Court of Appeals]
concluded that because the taxpayer had lost its access
 - 736 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

to review, the increased assessment was void. However,
all of these cases were prior to the adoption of . . . sec-
tion 77-1507.01.
Under . . . section 77-1507.01 taxpayers now have an
avenue for appeal by December 31 of each tax year if
notice was not timely provided. [TERC], therefore, has
jurisdiction over petitions which it did not otherwise
have prior to the passage of the statute. Because [TERC]
now has jurisdiction and the taxpayer has an avenue for
review, the previous Nebraska Supreme Court and Court
of Appeals decisions are no longer applicable; it appears
that . . . section 77-1507.01 now supersedes these deci-
sions in instances where a taxpayer petitions [TERC]
prior to December 31 of a tax year where a failure of
notice from the County Assessor or County Board pre-
vents timely filing under other statutes.
Salmon therefore dismissed Cain’s argument that the increased
assessments were void due to lack of notice. Freimuth agreed
with this determination.
On the merits, Salmon rejected Cain’s argument that his
property should have been valued within market area 2 or
area 3. She concluded that there was not clear and convinc-
ing evidence that the Assessor’s decision to classify Cain’s
property within market area 1 for 2012 was arbitrary or unrea-
sonable. She explained that the soil types on Cain’s property
were “more suitable to irrigation and production than the soils
located in Market Area 2 and Market Area 3” and that this dif-
ference in soil “support[ed] the . . . Assessor[’s] assertion that
the Subject Property [was] more valuable than irrigated grass-
land in Market Area 2 and Market Area 3.”
Freimuth dissented from the determination that the increased
valuations were neither arbitrary nor unreasonable. He stated
that he would find Cain had “provided sufficient evidence to
show that the [Assessor’s] valuation determinations . . . were
arbitrary or unreasonable . . . in part because the Subject
Property is unique as compared to other Market Area 1
 - 737 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

property and is substantially similar to the northern portion
of Custer County (i.e., Market Areas 2 and 3).” Freimuth
would have accepted Cain’s opinion as to the actual value of
the property.
Neb. Rev. Stat. § 77-5016(13) (Cum. Supp. 2014) provides
that TERC “shall deny relief to the appellant or petitioner in
any hearing or proceeding unless a majority of the commis-
sioners present determine that the relief should be granted.”
As such, given that Salmon and Freimuth did not agree, TERC
denied Cain’s petitions and affirmed the Assessor’s increased
valuations for 2012.
Cain timely appeals. Pursuant to our statutory authority to
regulate the dockets of the appellate courts of this state, we
moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
IV. ASSIGNMENTS OF ERROR
Cain assigns, reordered and restated, that TERC erred (1)
in determining that it had jurisdiction over the case; (2) in
determining that the notice required under § 77-1315(2) was
not essential to the validity of the assessments; (3) in deny-
ing Cain due process; (4) in failing to properly apply the
standard of review; and (5) in finding that he had failed to
meet his burden of establishing by clear and convincing evi-
dence that the Assessor’s valuations were arbitrary, capricious,
and unreasonable.
V. ANALYSIS
The issues tried by TERC were (1) whether the Assessor
failed to provide proper notice under § 77-1315(2) and
thereby prevented Cain from timely filing protests pursuant
to § 77-1502(1), (2) whether the Assessor’s failure to provide
proper notice voided the 2012 assessments on Cain’s property,
and (3) whether the Assessor’s valuations for tax year 2012
were consistent with the market value of his property. As will
be discussed below, Cain raises numerous other issues on
appeal that were not presented to TERC.
 - 738 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

1. Jurisdiction
(a) Final Order
[7] We first address whether TERC’s decision was a valid
order. 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. Breci v. St. Paul Mercury
Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
The dissent to this opinion argues that under § 77-1507.01,
when a taxpayer petitions TERC after having been denied a
hearing before a county board of equalization, TERC must
strictly comply with the same procedural requirements for a
protest hearing before the county board of equalization. In
counties under township organization, like Custer County,
questions before the board of equalization “shall be deter-
mined by the votes of a majority of the supervisors pres-
ent.” See Neb. Rev. Stat. § 23-277 (Reissue 2012). For this
reason, the dissent asserts that the two-member panel that
heard Cain’s petitions could not enter a decision without
a tie-breaking vote and that the order entered was conse-
quently invalid.
We respectfully disagree with the dissent. Given that
§ 77-1507.01 has never before been interpreted by this court,
there is no case law which provides that a hearing held under
§ 77-1507.01 must strictly comply with the procedures for a
protest before a county board of equalization. More important,
the statute itself does not impose such a requirement. Section
77-1507.01 provides in its entirety as follows:
Any person otherwise having a right to appeal may
petition [TERC] in accordance with section 77-5013, on
or before December 31 of each year, to determine the
actual value or special value of real property for that
year if a failure to give notice prevented timely filing
of a protest or appeal provided for in sections 77-1501
to 77-1510.
[8] Section 77-1507.01 does not specify that a hearing
held pursuant to this section must strictly conform to the
 - 739 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

procedural requirements for a protest before a county board
of equalization. Nor does the plain language of § 77-1507.01
state that the procedural rules governing other TERC proceed-
ings do not apply to a hearing held pursuant to this section.
Therefore, we find that a hearing held under § 77-1507.01
shall follow the procedural rules applicable to other proceed-
ings before TERC. An appellate court will not read into a
statute a meaning that is not there. See Kerford Limestone
Co. v. Nebraska Dept. of Rev., 287 Neb. 653, 844 N.W.2d
276 (2014).
Under the procedural rules which normally govern TERC
proceedings and which we find applicable in the instant case,
the order denying Cain’s petitions was a valid order. Section
77-5005(2) provides that a “majority of [TERC] shall at all
times constitute a quorum to transact business, and one vacancy
shall not impair the right of the remaining commissioners to
exercise all the powers of [TERC].” At all times relevant to
this case, TERC had three commissioners. See § 77-5003(1).
Consequently, two commissioners constituted a majority and
could transact business under § 77-5005(2).
The two commissioners who heard Cain’s petitions did not
agree about whether to grant the relief requested by Cain. But
this did not prevent TERC from entering an order denying
Cain’s petitions. Section 77-5016 provides that “[i]n any hear-
ing or proceeding heard by [TERC]: . . . (13) [TERC] shall
deny relief to the appellant or petitioner in any hearing or pro-
ceeding unless a majority of the commissioners present deter-
mine that the relief should be granted.” Since one commis-
sioner did not constitute a majority, pursuant to § 77-5016(13),
TERC was required to deny Cain’s petitions. In effect, the tie
between the two commissioners was broken by § 77-5016(13),
which required TERC to enter an order denying Cain’s peti-
tions. We therefore conclude that the order entered by a divided
panel of two commissioners was a valid order.
[9] In his petition for review, Cain alleged that the use of
a two-member panel violated his due process. His assignment
 - 740 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

of error related to due process may be sufficiently broad to
encompass this argument. However, he did not argue in his
brief that the use of a two-member panel was a violation
of due process. An alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.
Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820
(2014). Additionally, during oral arguments, Cain took the
position that two commissioners constituted a quorum and that
he needed the votes of two commissioners to be granted relief.
He did not assert that the use of a two-member panel violated
due process. Accordingly, we do not address whether the use
of a two-member panel violated Cain’s due process.

(b) Increased Assessments
Not Void
We next address Cain’s argument that TERC did not have
jurisdiction over his petitions, because the Assessor’s fail-
ure to provide the notices of increased valuation required
by § 77-1315(2) rendered the assessments void. If TERC
lacked jurisdiction, we acquire no jurisdiction. See Carlos H. v.
Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012).
For purposes of our analysis, we find that the Assessor did
not provide the necessary notices to Cain. Both TERC com-
missioners found that the Assessor failed to provide the notices
of increased valuation required by § 77-1315(2). And although
the county board of equalization strenuously argues that the
Assessor actually “complied with the notice statute,” it did not
file a cross-appeal to challenge TERC’s finding on the issue.
See brief for appellee at 17. As such, TERC’s factual find-
ing that the Assessor did not provide the notices required by
§ 77-1315(2) is not challenged on appeal, and it is therefore an
established fact for purposes of our analysis.
We consider whether this lack of notice voided the assess-
ments and thereby deprived TERC of jurisdiction to consider
Cain’s petitions. Cain argues that under our case law, the
 - 741 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

assessments based upon the increased valuations were voided
by the Assessor’s failure to provide the notice required by
§ 77-1315(2), which in turn prevented TERC from acquir-
ing jurisdiction. Conversely, the county board of equaliza-
tion argues that because Cain filed petitions pursuant to
§ 77-1507.01, the assessments were not void.
[10] Based upon our interpretation of § 77-1507.01, we
conclude that the assessments on Cain’s property were not void
for lack of notice and that TERC had jurisdiction to consider
Cain’s petitions. “The meaning of a statute is a question of
law, and a reviewing court is obligated to reach its conclusions
independent of the determination made by [TERC].” Falotico
v. Grant Cty. Bd. of Equal., 262 Neb. 292, 295, 631 N.W.2d
492, 496 (2001).

(i) Statutory Background
In the event that the assessed value of real property is
increased for any particular tax year, our statutes require
notices to be sent to the taxpayer at various points throughout
the proceedings arising from such increase. See §§ 77-1315(2)
and 77-1502(6) and Neb. Rev. Stat. §§ 77-1504 and 77-1507(1)
and (2) (Cum. Supp. 2014). These notices inform the taxpayer
of either an increase in the assessed value of real property or
the decision of a county board of equalization on a protest. See
§§ 77-1315(2), 77-1502(6), 77-1504, and 77-1507(1) and (2).
There are specific deadlines for protesting increased valuations
and for appealing decisions of a county board of equalization.
See §§ 77-1502(1), 77-1504, and 77-1507(1) and (3), and Neb.
Rev. Stat. § 77-1510 (Reissue 2009). Consequently, the fail-
ure of the county to provide one of the required notices may
prevent a taxpayer from filing a protest or appeal to which he
otherwise would have been legally entitled.
Prior to 2005, there was no statutory remedy for a taxpayer
who was prevented by a lack of notice from filing a protest or
appeal. But in 2005, the Legislature enacted § 77-1507.01 to
allow the filing of petitions directly with TERC “if a failure
 - 742 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

to give notice prevented timely filing of a protest or appeal
provided for in sections 77-1501 to 77-1510.”

(ii) Case Law
Prior to the enactment of § 77-1507.01, we considered sev-
eral increased valuation cases in which a lack of proper notice
prevented the taxpayer from filing a protest or appeal. See,
e.g., Falotico, supra; Reed v. County of Hall, 199 Neb. 134,
256 N.W.2d 861 (1977); Gamboni v. County of Otoe, 159 Neb.
417, 67 N.W.2d 489 (1954), disapproved on other grounds,
Hansen v. County of Lincoln, 188 Neb. 461, 197 N.W.2d 651
(1972), modified on denial of rehearing 188 Neb. 798, 197
N.W.2d 655; Rosenbery v. Douglas County, 123 Neb. 803, 244
N.W. 398 (1932). In each of these cases, we concluded that the
assessments which had been based upon the increased valua-
tions (increased assessments) were void due to lack of proper
notice. We review these cases and their applicability to the
case at bar.
In Rosenbery, supra, the taxpayer had not received the
notice of increased valuation required by a predecessor to
§ 77-1315. The lack of notice prevented the taxpayer from pro-
testing the valuation before the county board of equalization,
and so he brought an action to enjoin the collection of taxes
based on the increased assessment. The district court denied
relief, but we concluded that the taxpayer was entitled to an
injunction, because the increased assessment was void due to
lack of notice. We explained that it was contrary to the intent
of the Legislature and to the decisions of other state courts to
impose taxes based on an increased valuation where the tax-
payer had not received notice and an opportunity to be heard.
We reached similar conclusions in Gamboni, supra, and Reed,
supra, which also involved the failure to provide proper notice
of increased valuation under § 77-1315.
In Falotico v. Grant Cty. Bd. of Equal., 262 Neb. 292, 631
N.W.2d 492 (2001), the assessed values for several pieces
of property were increased by the county assessor for tax
 - 743 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

year 1999 and the taxpayers protested. The county board
of equalization denied the protests, but it did not notify the
taxpayers of the decision within the time set by § 77-1502.
Consequently, the taxpayers’ appeal to TERC was untimely.
Nonetheless, TERC heard the appeal and ultimately sustained
the county board of equalization’s motion to dismiss for lack
of evidence.
On appeal from TERC’s order, we determined that the notice
required by § 77-1502 was essential to the validity of the
increased assessments. We explained that the notice required
by § 77-1502 was intended to
ensure[] that a taxpayer will be notified of the board’s
decision in order that the taxpayer may have time to pre-
pare and file an appeal within the statutory 30-day period.
Without this notice provision, the board could very well
delay notification to the taxpayer, thereby preventing
review of the board’s decision. Likewise, if a violation of
this provision were without consequence, the board could
similarly engage in such delay and defeat the taxpayer’s
appeal, effectively denying the taxpayer the process that
is due under the statutes.
See Falotico, 262 Neb. at 298-99, 631 N.W.2d at 498. Viewing
these facts in light of our decision in Rosenbery, supra, we
concluded that because there was a failure to comply with
the notice requirement of § 77-1502, the increased valuations
were void. Accordingly, we held that TERC did not have
jurisdiction over the appeal. Falotico, supra, is the last case
in which we held an increased assessment void due to lack
of notice.

(iii) Resolution
In our cases before the Legislature enacted § 77-1507.01,
our rationale for declaring increased assessments void if the
taxpayer did not receive proper statutory notice was based
upon a denial to the taxpayer of the process due under the
statutes. See, Falotico, supra; Reed v. County of Hall, 199
 - 744 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

Neb. 134, 256 N.W.2d 861 (1977); Gamboni v. County of
Otoe, 159 Neb. 417, 67 N.W.2d 489 (1954), disapproved on
other grounds, Hansen v. County of Lincoln, 188 Neb. 461,
197 N.W.2d 651 (1972), modified on denial of rehearing 188
Neb. 798, 197 N.W.2d 655; Rosenbery v. Douglas County, 123
Neb. 803, 244 N.W. 398 (1932). The process being denied
by the lack of notice was the opportunity either to protest
an increased assessment or to appeal from the county board
of equalization.
But the failure of the county to provide notice of an
increased assessment or the county board of equalization’s
decision no longer deprives a taxpayer of an opportunity
to be heard on the increased assessment or decision. After
our decision in Falotico v. Grant Cty. Bd. of Equal., 262
Neb. 292, 631 N.W.2d 492 (2001), the Legislature adopted
§ 77-1507.01. See 2005 Neb. Laws, L.B. 15, § 5. Under
§ 77-1507.01, a taxpayer who does not receive notice has
the opportunity to be heard by filing a petition directly with
TERC. Because this opportunity to be heard now exists, we
conclude that the failure to provide notice of an increased
assessment or the decision of a county board of equalization
no longer renders increased assessments void for a denial of
due process.
[11] The language of § 77-1507.01 confirms that a lack
of notice no longer renders an increased assessment void.
When it enacted § 77-1507.01, the Legislature was aware
of our past decisions that the failure to provide notice ren-
dered an increased assessment void specifically because it
deprived the taxpayer of an opportunity to be heard. See,
Falotico, supra; Reed, supra; Gamboni, supra; Rosenbery,
supra. Section 77-1507.01 was enacted subsequent to these
decisions. See 2005 Neb. Laws, L.B. 15, § 5. The Legislature
is presumed to know the general condition surrounding the
subject matter of the legislative enactment, and it is presumed
to know and contemplate the legal effect that accompanies the
language it employs to make effective the legislation. State ex
 - 745 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d
194 (2008).
In light of the knowledge of our past decisions, it is sig-
nificant that the Legislature adopted language which expressly
created a new procedure that allowed taxpayers who had not
received notice to protest increased assessments or to appeal
decisions of a county board of equalization if the taxpayer had
not received the required statutory notice. See § 77-1507.01.
By authorizing such protests and appeals, the Legislature elim-
inated the circumstance (no opportunity to be heard) which
was the basis for our decisions declaring increased assessments
void due to lack of notice.
Moreover, the Legislature provided that TERC’s role within
this new procedure would be “to determine the actual value or
special value of real property for that year.” See § 77-1507.01.
TERC could not reach the issue of valuation if a failure of
notice rendered an assessment void, because every petition
filed under § 77-1507.01 would then be dismissed for lack of
jurisdiction due to the void assessment. Therefore, based on
the language of § 77-1507.01, we conclude the Legislature
intended that the failure to provide notice would no longer ren-
der increased assessments void.
TERC correctly determined that the assessments were not
void and that it had jurisdiction under § 77-1507.01. Cain
did not receive the notices of increased valuation required
by § 77-1315(2) and did not learn of the changes until long
after the deadline for filing protests pursuant to § 77-1502(1)
had passed. Because the lack of notice prevented him from
filing protests, § 77-1507.01 permitted him to file petitions
with TERC before December 31, 2012, which was done.
Because this opportunity was available, none of the increased
assessments were void due to lack of notice. TERC had juris-
diction over Cain’s petitions, and we have jurisdiction over
this appeal.
 - 746 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

2. Constitutionality
of § 77-1507.01
At oral argument, Cain asserted for the first time that
§ 77-1507.01 was unconstitutional. He claimed that it deprived
him of due process because he did not have a hearing before
the county board of equalization.
Cain’s assignment of error related to due process might
be sufficiently broad to encompass this argument. But he
did not argue in his brief that § 77-1507.01 deprived him
of due process because he did not have a hearing before the
county board of equalization. An alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appellate
court. Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d
820 (2014).
[12] Moreover, Cain did not satisfy the procedural prereq-
uisites for appellate review of such a claim. Neb. Ct. R. App.
P. § 2-109(E) (rev. 2014) provides:
A party presenting a case involving the federal or state
constitutionality of a statute must file and serve notice
thereof with the Supreme Court Clerk by a separate writ-
ten notice or by notice in a Petition to Bypass at the time
of filing such party’s brief. If the Attorney General is
not already a party to an action where the constitutional-
ity of the statute is in issue, a copy of the brief assign-
ing unconstitutionality must be served on the Attorney
General within 5 days of the filing of the brief with the
Supreme Court Clerk; proof of such service shall be filed
with the Supreme Court Clerk.
Strict compliance with § 2-109(E) is required in order for an
appellate court to consider a challenge to the constitutional-
ity of a statute. Mid City Bank v. Douglas Cty. Bd. of Equal.,
260 Neb. 282, 616 N.W.2d 341 (2000). Although Cain served
the Attorney General with a copy of his brief, he did not file
a notice of constitutional question. Therefore, because Cain
did not comply with § 2-109(E) or with our rules regarding
 - 747 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

the assignment and argument of errors, we do not address his
claim regarding the constitutionality of § 77-1507.01.
3. Plain Error
In considering Cain’s petitions filed pursuant to
§ 77-1507.01, TERC applied the standard of review found in
§ 77-5016(9). At the hearing before TERC, Cain did not object
to the application of this standard. And although Cain now
assigns that the manner in which TERC applied § 77-5016(9)
was error, he does not argue that TERC used the wrong stan-
dard of review.
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. Connelly v. City of
Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012). 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. Id. In the instant
case, we note plain error in the standard of review applied by
TERC to Cain’s petitions.
TERC applied the standard of review found in § 77-5016(9),
which provides:
In all appeals, excepting those arising under section
77-1606, if the appellant presents no evidence to show
that the order, decision, determination, or action appealed
from is incorrect, the commission shall deny the appeal.
If the appellant presents any evidence to show that the
order, decision, determination, or action appealed from is
incorrect, such order, decision, determination, or action
shall be affirmed unless evidence is adduced establish-
ing that the order, decision, determination, or action was
unreasonable or arbitrary.
We have interpreted this section as providing that there is
“‘“a presumption that a board of equalization has faithfully
performed its official duties in making an assessment and
has acted upon sufficient competent evidence to justify its
action.”’” See JQH La Vista Conf. Ctr. v. Sarpy Cty. Bd. of
 - 748 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

Equal., 285 Neb. 120, 124,
­­ 825 N.W.2d 447, 451 (2013). The
presumption “remains until rebutted by clear and convincing
evidence.” See Pittman v. Sarpy Cty. Bd. of Equal., 258 Neb.
390, 398, 603 N.W.2d 447, 453 (1999). See, also, Brenner v.
Banner Cty. Bd. of Equal., 276 Neb. 275, 753 N.W.2d 802
(2008). “‘“From that point forward, the reasonableness of the
valuation fixed by the board of equalization becomes one of
fact based upon all the evidence presented. . . .”’” See JQH
La Vista Conf. Ctr., 285 Neb. at 124, 825 N.W.2d at 451-52.
TERC should not have applied § 77-5016(9) to Cain’s peti-
tions. Section § 77-5016(9) sets forth the standard of review
applicable in “all appeals” before TERC. But the instant case
was not before TERC as an appeal from the board of equal-
ization. Pursuant to § 77-1507.01, Cain “petition[ed]” TERC
directly without first appearing before the board of equaliza-
tion. Consequently, TERC’s role in the instant case was not
that of an appellate body. Because the lack of notice pre-
vented Cain from filing protests with the board of equalization,
TERC was not reviewing decisions of the board of equaliza-
tion. Rather, pursuant to § 77-1507.01, TERC was in a posi-
tion to perform an initial review of Cain’s challenges to the
increased assessments.
In performing this initial review of the increased assess-
ments on Cain’s property, TERC should have applied the
same standards and burdens of proof as the board of equal-
ization would have used in a protest. As explained above, in
enacting § 77-1507.01, the Legislature provided a remedy to
taxpayers who were prevented by a lack of notice from filing
protests with the board of equalization. It did so by creat-
ing a new procedure for protesting increased valuations by
filing petitions directly with TERC. This substitute protest
should be governed by the same standard of review and cor-
responding burdens of proof as a protest before a county board
of equalization.
[13,14] In protests before a county board of equalization,
“the valuation by the assessor is presumed to be correct.”
 - 749 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

See Helvey v. Dawson Cty. Bd. of Equal., 242 Neb. 379,
386, 495 N.W.2d 261, 267 (1993). The burden of proof rests
upon the taxpayer to rebut this presumption and “‘to prove
that an assessment is excessive.’” See Ainsworth v. County
of Fillmore, 166 Neb. 779, 784, 90 N.W.2d 360, 364 (1958).
Our case law indicates that the standard generally applicable
in proceedings before county boards, including monetary dis-
putes, is a preponderance, or greater weight, of the evidence.
See Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d
298 (2010). The statutes governing protests before the board
of equalization do not alter this burden. See § 77-1502. As
such, in protests before the board of equalization, the taxpayer
can rebut the presumption by a preponderance, or greater
weight, of the evidence. Cain should have been held to this
same standard in the TERC proceedings on his petitions,
which constituted an initial review of his challenge to the
increased assessments.
By considering Cain’s petitions under § 77-5016(9), TERC
erroneously increased the burden placed upon him as the
taxpayer from a preponderance, or greater weight, of the evi-
dence to a clear and convincing standard. If uncorrected, this
error would damage the fairness of the proceedings autho-
rized by § 77-1507.01, where a lack of notice prevented the
filing of a protest with the board of equalization. We therefore
conclude that TERC’s consideration of Cain’s petitions using
the appellate standard of review described in § 77-5016(9)
constituted plain error. We reverse TERC’s decision and
remand the cause for reconsideration on the record of Cain’s
petitions using the preponderance, or greater weight, of the
evidence standard applicable to protests before a county
board of equalization.

4. R emaining Assignments
of Error
[15] Because we have determined that TERC’s order should
be reversed, we do not address Cain’s remaining assignments
 - 750 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

of error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and contro-
versy before it. Tierney v. Four H Land Co., 288 Neb. 586, 852
N.W.2d 292 (2014).
VI. CONCLUSION
For the foregoing reasons, we reverse the decision of TERC
which affirmed the Assessor’s valuations of Cain’s property
for purposes of tax year 2012. We remand the cause for recon-
sideration on the record using the preponderance, or greater
weight, of the evidence standard applicable to protests before a
county board of equalization.
R eversed and remanded.
Connolly, J., dissenting
I dissent. I disagree with the majority’s conclusion that two
TERC commissioners can render a valid decision on a taxpay-
er’s assessment protest if they disagree. I believe that TERC is
bound by the rules that would apply to a protest hearing before
the county board of equalization. So does the majority—to an
extent. It finds plain error in TERC’s application of a clear and
convincing standard of proof and holds that TERC must apply
the same standard that would apply before a county board of
equalization. But it seems that it inconsistently concludes that
TERC is not bound by the rules relevant to whether the adju-
dicating body has issued a valid decision. I believe that our
case law compels TERC to comply with those rules, or the
increased assessment is void. And those rules require a deci-
sion on the merits, not a statutory default decision. Because
TERC failed to render a valid decision under the statutes that
apply to protest hearings, I conclude that there is no final order
and that we do not have jurisdiction to consider the merits of
the appeal. I would remand the cause for a tie-breaking deci-
sion on the merits.
No statute governing protest hearings provides that tax-
payers shall be denied relief if a county board of equaliza-
tion splits evenly on the action to be taken. In my opinion,
 - 751 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

absent a default statute, a split of opinion among fact finders
is a failure to act, particularly under the protest statutes. Neb.
Rev. Stat. § 77-1502(4) (Cum. Supp. 2014) provides that no
protest hearing shall be held before a single county commis-
sioner or supervisor, and there are no default rules affirming
an assessor’s valuation if the board fails to issue a decision.
Additionally, as the majority opinion acknowledges, in Custer
County, a majority vote by all the county supervisors present is
required to determine any matter before the board.1
I recognize that Neb. Rev. Stat. § 77-5016(13) (Cum. Supp.
2014) provides that TERC “shall deny relief to the appellant
or petitioner in any hearing or proceeding unless a majority of
the commissioners present determine that the relief should be
granted.” But the Legislature enacted § 77-5016(13) in 2003,2
before it enacted Neb. Rev. Stat. § 77-1507.01 (Reissue 2009)
in 2005.3 Before 2005, TERC heard petitions from a county
board of equalization, but not from taxpayers seeking an origi-
nal evidentiary hearing to protest an increased assessment.4
So I do not believe the majority rule under § 77-5016(13)
was intended to apply to a protest hearing. More important,
our case law precluded TERC from relying on this statute
to conclude that it had rendered a valid decision. Under our
case law, an increased assessment is valid only if the taxpayer
received the procedural protections afforded at every stage of
the assessment proceedings. And I disagree with the majority’s
characterization of our case law to eliminate strict compliance
with those procedural requirements.
Obviously, due process requires adequate notice and the
opportunity to be heard when the State seeks to deprive
persons of their property interests.5 So it has always been

 1
See Neb. Rev. Stat. § 23-277 (Cum. Supp. 2014).
 2
2003 Neb. Laws, L.B. 291, § 9.
 3
See 2005 Neb. Laws, L.B. 15, § 5.
 4
See Neb. Rev. Stat. § 77-1504.01 (Cum. Supp. 2014).
 5
See Potter v. Board of Regents, 287 Neb. 732, 844 N.W.2d 741 (2014).
 - 752 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

the law in this state that a county board of assessment lacks
jurisdiction to increase a property assessment if the taxpayer
did not receive notice of the increase and an opportunity
to be heard—such assessments are void.6 In Rosenbery v.
Douglas County,7 where the taxpayer received no notice of
an increased assessment until after the county board had
adjourned, we held, largely out of due process concerns,
that the county should be enjoined from collecting taxes on
the increased valuation. But we did not simply hold that a
county must provide notice and an opportunity to be heard.
We agreed with other state courts that the statutory procedures
for levying property taxes are mandatory and must be strictly
observed because they are intended to protect taxpayers and
safeguard against excessive levies.
We expanded on this reasoning in Gamboni v. County of
Otoe.8 There, the county assessor sent notice to the taxpay-
ers of increased assessments, but the notice did not provide
the date that the county board would convene, as required
by statute. We recognized that the board’s meeting time was
set out by statute, that the board had published notice of the
increases and the deadline for filing protests, and that most
of the property owners had received notice of the increased
assessments for their tax returns. But we concluded that

 6
See, Northwestern Bell Tel. Co. v. State Board of Equalization and Assm’t.,
119 Neb. 138, 227 N.W. 452 (1929); Crane Co. v. Douglas County,
112 Neb. 365, 199 N.W. 791 (1924); Farmers Co-operative Creamery
& Supply Co. v. McDonald, 100 Neb. 33, 158 N.W. 369 (1916); Brown
v. Douglas County, 98 Neb. 299, 152 N.W. 545 (1915); Bankers Life
Ins. Co. v. County Board of Equalization, 89 Neb. 469, 131 N.W. 1034
(1911); Grant v. Bartholomew, 57 Neb. 673, 78 N.W. 314 (1899); Spiech
v. Tierney, 56 Neb. 514, 76 N.W. 1090 (1898); South Platte Land Co. v.
Buffalo County, 7 Neb. 253 (1878).
 7
Rosenbery v. Douglas County, 123 Neb. 803, 244 N.W. 398 (1932).
 8
Gamboni v. County of Otoe, 159 Neb. 417, 67 N.W.2d 489 (1954),
disapproved in part on other grounds, Hansen v. County of Lincoln, 188
Neb. 461, 197 N.W.2d 651 (1972), modified on denial of rehearing 188
Neb. 798, 197 N.W.2d 655.
 - 753 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

these actions did not fulfill the statutory requirements. In
rejecting the argument that the taxpayers had adequate notice
of the increases, we relied on the strict compliance rule
from Rosenbery:
What has been said of the notice itself being mandatory
we think is equally applicable to what the Legislature has
said shall be contained herein. . . .
....
We find the statute requires the notice must be given
by the assessor and that it must specifically contain all
the information the statute requires shall be set forth
therein.9
In sum, while it is true that due process requires notice and
an opportunity to be heard, our case law goes beyond minimal
due process requirements. We have required strict compliance
with statutory procedures for increasing property assessment
because they are intended to protect taxpayers and safeguard
against excessive levies. Our more recent decision in Falotico
v. Grant Cty. Bd. of Equal.10 reaffirmed these principles.
In Falotico, we required counties to strictly comply with
the statutory time limit for notifying a taxpayer of a county
board’s decision. Because the notice was late, the taxpayer did
not file a timely appeal with TERC. In relying on Rosenbery,
we reiterated its strict compliance requirement: “[T]he proce-
dure prescribed by the Legislature in respect to levying a tax
must be strictly observed. We further stated [in Rosenbery]
that the statutory provision relating to a tax levy, the objects of
which are the protection of taxpayers and to safeguard against
excessive levies, is mandatory.”11
We concluded that under Rosenbery and Gamboni, all statu-
tory requirements intended to protect taxpayers and guard

 9
Id. at 426-27, 67 N.W.2d at 497 (emphasis supplied).
10
Falotico v. Grant Cty. Bd. of Equal., 262 Neb. 292, 631 N.W.2d 492
(2001).
11
Id. at 298, 631 N.W.2d at 498.
 - 754 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

against excessive levies are mandatory and that the county
must strictly comply with them:
The notice requirements under § 77-1502 occur at a
different point in time in the assessment process than
the notice required by what is now § 77-1315. However,
its object is largely the same, namely, notice. Given that
appeals to TERC must be taken within 30 days after
the adjournment of a board of equalization, § 77-1502
ensures that a taxpayer will be notified of the board’s
decision in order that the taxpayer may have time to pre-
pare and file an appeal within the statutory 30-day period.
Without this notice provision, the board could very well
delay notification to the taxpayer, thereby preventing
review of the board’s decision. Likewise, if a violation of
this provision were without consequence, the board could
similarly engage in such delay and defeat the taxpayer’s
appeal, effectively denying the taxpayer the process that
is due under the statutes. We conclude that just as notice
by the county assessor under § 77-1315 is essential to the
validity of the levy, so too is notice by the county clerk
under § 77-1502.12
We held that because the county had violated this statutory
duty, the valuation increase was void. Falotico emphasizes
that under our case law, even if the taxpayer received notice
of the increased assessment and an opportunity to be heard,
an increased assessment is void if a taxpayer does not receive
the statutory “process that is due” at every stage of an assess-
ment proceeding.
I agree that in enacting § 77-1507.01, the Legislature
intended to give a taxpayer the right to petition TERC when
the taxpayer lost the right to protest an assessment to the
county board due to lack of notice. But § 77-1507.01 implicitly
contemplates that TERC will provide an equivalent eviden-
tiary hearing by authorizing taxpayers to file a “petition” with

12
Id. at 298-99, 631 N.W.2d at 498 (emphasis supplied).
 - 755 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

TERC if lack of notice prevented them from timely filing a
protest with a county board of equalization. I agree with the
majority’s conclusion that when a taxpayer files a petition for
a protest hearing, TERC must act as factfinding body—not an
appellate tribunal.
I also agree with the majority that because TERC is pro-
viding a substitute protest hearing, it erred in applying a
clear and convincing standard of proof in reliance on what
is now § 77-5016(9). The majority specifically reasons that
because the hearing before TERC is a substitute protest hear-
ing, it must be governed by the standard of proof that applies
to a hearing before the county board of equalization. But
applying the wrong standard of proof is not the only way
in which Cain was denied the process that he would have
received if the county had provided timely notice of his
increased assessments.
As the majority opinion explains, under the statutes gov-
erning TERC’s procedures,13 if only two TERC commission-
ers hear a taxpayer’s protest, the taxpayer must obtain a
unanimous decision to prevail. But the majority opinion also
acknowledges that the protest statutes do not contemplate a
procedure in which a single adjudicator has veto power, as
in this case. So Cain did not received the procedures that he
would have received under the protest statutes.
I see no reason to distinguish the statutory adjudication
requirement from the statutory standard of proof. If taxpayers
are entitled to the benefit of one procedure, they are entitled
to the benefit of the other. And our case law requiring strict
compliance with the protest procedures would be meaningless
if a county could simply avoid the procedures by delaying
notice and depriving a taxpayer of a protest hearing before
a county board. Because § 77-1507.01 must be construed
as providing a substitute protest hearing, a decision on the
merits is required under the same procedural protections. At

13
See Neb. Rev. Stat. § 77-5005 (Cum. Supp. 2014) and § 77-5016(13).
 - 756 -
Nebraska A dvance Sheets
291 Nebraska R eports
CAIN v. CUSTER CTY. BD. OF EQUAL.
Cite as 291 Neb. 730

an original protest hearing, a finder of fact is not deciding
whether to maintain the status quo. It is deciding whether to
increase a property assessment. And a split vote by a county
board of equalization is not a decision to take that action.
Because TERC failed to render a valid decision under the
protest statutes, I conclude that we do not have a final order
or jurisdiction to consider the merits of the appeal. The lack
of a final order, however, does not preclude us from vacating
the order and remanding the cause for a tie-breaking deci-
sion on the merits under the same standards that apply to a
county board of equalization.14 But I would hold that unless
TERC provides a hearing equivalent to the procedure that Cain
would have received before the county board had the Assessor
complied with notice requirements, the increased assessment
is void.

14
See, Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846 N.W.2d 634
(2014), citing In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607
(2011); Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013).