Pinnacle Enters. v. Sarpy Cty. Bd. of Equal.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
Pinnacle Enterprises, Inc., and Midland Heights
Apartments, L.L.C., appellants, v. Sarpy County
Board of Equalization and Danny Pittman,
in his official capacity as Sarpy County
Assessor, appellees.
___ N.W.3d ___
Filed November 7, 2025. 	No. S-24-686.
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.
Appeal from the Tax Equalization and Review Commission.
Reversed and remanded with directions.
Douglas W. Ruge for appellants.
William J. Bianco, of Bianco Stroh, L.L.C., for appellee
Danny Pittman.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Papik, J.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:59 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
After the Sarpy County Assessor (the Assessor) set taxable
values of properties owned by taxpayers Pinnacle Enterprises,
Inc., and Midland Heights Apartments, L.L.C. (collectively
the Taxpayers), the Taxpayers filed protests with the Sarpy
County Board of Equalization (the Board). The Board sided
with the Taxpayers and lowered the valuations. The Assessor
then appealed to the Nebraska Tax Equalization and Review
Commission (TERC). TERC determined that the Board based
its determinations of actual value on an improper methodol-
ogy, while the Assessor’s valuations were consistent with the
governing statute and supported by the evidence. Accordingly,
TERC vacated and reversed the Board’s valuations. In this
appeal filed by the Taxpayers, we conclude that TERC erred
because the Board’s determinations of value were not shown
to be unreasonable or arbitrary. We reverse TERC’s deci-
sion and remand the cause with directions to affirm the
Board’s valuations.
BACKGROUND
The Taxpayers Successfully
Protest Assessments
Before the Board.
The Taxpayers own an apartment complex situated on two
adjoining parcels in Sarpy County, Nebraska. For one parcel,
the Assessor set the taxable value of the property at $8,953,000
for tax years 2020 and 2021. For the other parcel, the Assessor
set the taxable value of the property at $5,263,000 for tax years
2020 and 2021.
The Taxpayers thought the valuations were too high, so
they protested to the Board. A referee conducted protest pro-
cedures for the Board and recommended taxable values equal
to lower values advocated by the Taxpayers—$7,450,829
and $3,559,566 for the respective parcels for tax years 2020
and 2021. The Board adopted the referee’s recommended
valuations.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
The Assessor Appeals to TERC,
Evidence Presented.
The Assessor appealed the Board’s decision to TERC.
TERC conducted a hearing. The parties agreed that the prop-
erties should be valued using an income approach, and they
generally agreed about the formula that should be used to
do so. The main dispute was what figure should be used
to represent the Taxpayers’ income from the properties: The
Assessor argued for using a market-typical income figure, but
the Taxpayers submitted that an actual income figure could
be used.
An appraiser involved in the Assessor’s valuation of the
properties testified. She explained that the Assessor applied
an income approach to value the properties. This involved
estimating the properties’ potential gross income, deducting
estimated vacancy and collection losses to determine effective
gross income, deducting the estimated operating expenses to
determine net operating income, and dividing the net operating
income by an estimated capitalization rate to yield the value
of the properties. The Assessor relied on market data, rather
than the Taxpayers’ actual income, to calculate the properties’
potential gross income.
TERC also heard the testimony of an executive and partner
of the Taxpayers. He did not object to the use of an income
approach or to the specific formula used by the Assessor. But
he did disagree with the income figures the Assessor used.
He testified that to determine the properties’ potential gross
income, the Assessor should have used the properties’ actual
rents like the referee recommended, rather than typical mar-
ket rental rates, which he testified were higher than the
actual rents.
Bradley Rogge, a licensed real estate appraiser, acted as
the referee before the Board and agreed with the Taxpayers’
requested 	valuations. 	Rogge 	testified 	at 	the 	TERC 	hear-
ing that for the Taxpayers’ protests before the Board, the

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
Taxpayers provided him with a pro forma showing the prop-
erties’ actual income for 1 month; Rogge then verified with
the Taxpayers that the income for that month was reflec-
tive of the Taxpayers’ income generally. Rogge testified that
other than using actual gross income in their calculations, the
Taxpayers used the same methodology as the Board.
Rogge also compared the actual income figures provided by
the Taxpayers to the estimated rental price for the Taxpayers’
properties on an online real estate database. Rogge explained
that the database estimated the rent for a given property based
on a combination of the price at which a broker had listed
the property—if it was listed—and a survey of surround-
ing properties also in the database. Rogge testified that the
income figures provided by the Taxpayers were in line with
the figures on the database. He testified that he checked the
database’s estimates for the Taxpayers’ properties for 2020 and
2021 to confirm that the rental rates the Taxpayers provided
were reasonable. He testified that even though the Taxpayers
provided him rental rates from 2017, those rates were con-
sistent with the database’s estimated rental rates for 2020 and
2021. Rogge’s recommendation to the Board stated an aver-
age rent per unit for the Taxpayers’ properties and cited the
database. His recommendation to the Board also noted that
the Assessor’s market rents for the properties appeared high
compared to similar properties.
Rogge opined that using the actual income in property valu-
ation was better than using an estimate for the region derived
from market data. Rogge did concede, however, that he was
not experienced with mass appraisal methodology, nor did he
perform a fee appraisal for the Taxpayers’ properties because
that was not his role as a referee. Rogge explained that he
was hired at an hourly rate to attend hearings and make a
recommendation based on the evidence presented. Rogge also
acknowledged in his testimony to TERC that in his recommen-
dation to the Board, he incorrectly noted that the Taxpayers

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
provided expense information to him. He explained, however,
that he did not rely on that expense information when arriv-
ing at his recommendation. Instead, he used the same expense
ratio implemented by the Assessor.
TERC Vacates and Reverses
the Board’s Decision.
After the hearing, TERC vacated and reversed the Board’s
decision. TERC concluded that the Board’s determination of
value was unreasonable. TERC found the Board should not
have relied on Rogge because Rogge used the Taxpayers’
actual rental rates to calculate potential gross income.
TERC’s decision referred to appraisal industry publica-
tions explaining mass appraisal methods. TERC noted that the
International Association of Assessing Officers had stated:
“Actual or reported figures can be used as long as they
reflect typical figures (or typical figures can be used for
all properties).” “For properties with reported figures the
assessor has two choices: (1) use the reported figures for
instances in which they have been verified or are con-
sistent with estimated (typical) figures, or (2) consistently
use estimated figures in all cases.”
TERC observed that while Rogge had used the same expense,
vacancy, and capitalization rates as the Assessor, “no evidence
was adduced to conclude the income rates used by the . . .
Board were based on typical market rates.”
TERC also reasoned:
The methods expressly stated in [Neb. Rev. Stat. § 77-112
(Reissue 2018)] are the sales comparison approach, the
income approach, and the cost approach. The [Taxpayers’
and the Board’s] methodology of using actual income
rates in conjunction with market typical expense, vacancy,
and capitalization rates is not identified in statute and no
evidence of its professional acceptance as an accepted
mass appraisal method has been produced.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
After determining that the valuations suggested by Rogge
and adopted by the Board were unreasonable, TERC went on
to conclude that the rates used by the Assessor were consistent
with professionally accepted mass appraisal techniques. TERC
vacated and reversed the Board’s valuations and ordered that
the taxable value for the properties were the amounts initially
set by the Assessor.
The Taxpayers appealed TERC’s decision.
ASSIGNMENT OF ERROR
Relevant to this opinion, the Taxpayers assign, restated, that
TERC’s decision should be reversed because TERC erred by
reversing the Board’s determination of actual value.
STANDARD OF REVIEW
Two standards of review are relevant in this case—the stan-
dard we, as an appellate court, apply when reviewing decisions
of TERC and the standard TERC is to apply when reviewing
decisions of a county board of equalization. In this case, the
former standard is straightforward while the latter requires
some discussion.
[1-3] Our standard of review in this case is well-estab-
lished. Appellate courts review decisions rendered by TERC
for errors appearing on the record. Platte River Crane Trust
v. Hall Cty. Bd. of Equal., 298 Neb. 970, 906 N.W.2d 646
(2018). 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. Questions
of law arising during appellate review of TERC decisions
are reviewed de novo on the record. County of Webster v.
Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751, 896
N.W.2d 887 (2017).
The standard of review TERC was to apply in this case is
somewhat more complicated. TERC’s review is governed by
Neb. Rev. Stat. § 77-5016(9) (Reissue 2018):

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
In all appeals [heard by TERC], excepting those arising
[from a county tax levy], if the appellant presents no
evidence to show that the order, decision, determination,
or action appealed from is incorrect, [TERC] 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 estab-
lishing that the order, decision, determination, or action
was unreasonable or arbitrary.
We have read § 77-5016(9) to create two burdens of proof
that a party must satisfy to be successful on appeal to TERC.
There is “a presumption in an appeal to TERC that a county
board has faithfully performed its official duties in making an
assessment and has acted upon sufficient competent evidence
to justify its action.” Cain v. Custer Cty. Bd. of Equal., 315
Neb. 809, 818, 1 N.W.3d 512, 521 (2024). That presumption
remains until competent evidence to the contrary is presented;
this is the first burden of proof. See id. We have further
explained that if the “challenging party” overcomes the pre-
sumption of validity by competent evidence, the reasonable-
ness of the valuation fixed by the county board becomes a
question of fact based on all the evidence presented; this is the
second burden of proof. See id.
We have outlined what must be shown to carry this second
burden of proof in cases in which taxpayers challenge the
valuation of a county board:
The burden of showing that a valuation is unreasonable
or arbitrary rests upon the taxpayer on appeal from the
action of the board. And the burden of persuasion imposed
on a complaining taxpayer is not met by showing a mere
difference of opinion unless it is established by clear and
convincing evidence that the valuation placed upon the
property, when compared with valuations placed on other
similar property, is grossly excessive and is the result

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
of a systematic exercise of intentional will or failure of
plain duty, and not mere errors of judgment.
Lancaster Cty. Bd. of Equal. v. Moser, 312 Neb. 757, 767, 980
N.W.2d 611, 619 (2022). See, also, e.g., Cain, 315 Neb. at 818,
1 N.W.3d at 521 (“[o]n appeal from an action of the county
board [of equalization], the taxpayer has the burden of show-
ing that a valuation is unreasonable or arbitrary”); Ideal Basic
Indus. v. Nuckolls Cty. Bd. of Equal., 231 Neb. 653, 655, 437
N.W.2d 501, 502 (1989) (on appeal to TERC, “[t]he burden
of showing such valuation to be unreasonable rests upon the
taxpayer on appeal from the action of the board”).
But here, the party that appealed from the Board to TERC
was the Assessor, and we do not appear to have specifically
addressed the second burden of proof in such cases. We do
have at least one case in which a county assessor successfully
appealed a county board’s valuation decision to TERC and
the taxpayer appealed the TERC’s decision to this court. See
Phelps Cty. Bd. of Equal. v. Graf, 258 Neb. 810, 606 N.W.2d
736 (2000). There, “we examine[d] the record to determine
whether the [a]ssessor successfully rebutted the presumption
that the [b]oard acted upon sufficient competent evidence to
justify its action.” Id. at 816, 606 N.W.2d at 741. We deter-
mined that the county assessor rebutted the presumption, sat-
isfying the first burden of proof. However, as to the second
burden of proof, we did not clearly articulate whether the
county assessor then had a burden to show the county board’s
valuation was arbitrary or unreasonable. We take the opportu-
nity to do so today.
We understand § 77-5016(9) to place the first and second
burdens of proof on the party appealing to TERC, whom-
ever that may be. As quoted above, § 77-5016(9) covers “all
appeals” to TERC, except those arising from county tax levies.
It goes on to set forth how TERC shall respond to evidence
presented by “the appellant.” See § 77-5016(9). Therefore, we
conclude that in this case, both the first and second burdens
created by § 77-5016(9) applied to the Assessor.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
We have had occasion to explore in some detail what a tax-
payer must show to demonstrate that a valuation is arbitrary or
unreasonable. However, we recognize that the same exact con-
siderations would not neatly map onto an assessor’s attempt
to do the same. To note one obvious example, an appealing
assessor would almost certainly be challenging a valuation as
too low, so he or she would not be required to show that the
valuation is “grossly excessive.” Moser, 312 Neb. at 767, 980
N.W.2d at 619. In any event, to the extent our previous opin-
ions can be read to impose the second burden—the burden of
showing that a valuation is unreasonable or arbitrary—on the
taxpayer only, we clarify that it applies to any appellant subject
to § 77-5016(9) that appeals to TERC.
ANALYSIS
Merits of the Taxpayers’ Appeal.
Generally, “all real property in this state, not expressly
exempt therefrom, shall be subject to taxation and shall be
valued at its actual value.” Neb. Rev. Stat. § 77-201(1) (Cum.
Supp. 2024).
Actual value of real property for purposes of taxation
means the market value of real property in the ordinary
course 	of 	trade. 	Actual 	value 	may 	be 	determined
using professionally accepted mass appraisal methods,
including, but not limited to, the (1) sales comparison
approach using [statutory] guidelines . . . , (2) income
approach, and (3) cost approach.
Neb. Rev. Stat. § 77-112 (Reissue 2018). The “actual values”
of the Taxpayers’ properties are at the root of this dispute.
The Taxpayers take the position that TERC erred in revers-
ing the Board’s determination of the properties’ actual values.
The Taxpayers claim that TERC erred by concluding that
the Board could not rely on Rogge’s recommended values,
which he calculated by applying an income approach in
which the Taxpayers’ actual rents were used as a basis for

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
determining the income the properties generated. Applying
the standards of review we discussed above, we agree with
the Taxpayers.
TERC relied on appraisal industry publications to conclude
that the use of actual rents in conjunction with market typical
expense, vacancy, and capitalization rates was not a profes-
sionally accepted mass appraisal method. TERC could rely on
such publications. TERC “may without inclusion in the record
consider and utilize published treatises, periodicals, and refer-
ence works pertaining to the valuation or assessment of real or
personal property or the meaning of words and phrases if the
document is identified in the commission’s rules and regula-
tions.” See § 77-5016(3). The publications TERC relied on
are so identified. See 442 Neb. Admin. Code, ch. 2, § 001.45
(2011) (identifying publications quoted by TERC as containing
professionally or generally accepted mass appraisal methods
and techniques).
But while TERC could rely on those publications, we
do not read the excerpts it quoted from those publications
to say that actual income figures cannot be used under the
income approach or cannot be used in conjunction with mar-
ket typical expense, vacancy, and capitalization rates. The
excerpts instead said actual, reported figures could be used
if they “have been verified or are consistent with estimated
(typical) figures.”
TERC apparently found that the actual figures the Taxpayers
provided and upon which Rogge and the Board based their
valuations were not verified or consistent with market typi-
cal income. But Rogge testified that he confirmed that the
1-month actual income figure provided by the Taxpayers was
consistent with actual income every month, and he then used
an online database to confirm that the actual figures provided
by the Taxpayers were reasonably consistent with market
typical income.
Perhaps TERC believed that Rogge should have done some-
thing more or something else to verify that the actual rent

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
figures the Taxpayers provided to him were consistent with
market typical expenses. Given its standard of review, how-
ever, TERC could not reverse the Board’s valuations merely
because it would have valued the properties differently. Even
assuming that the Assessor had overcome the first burden
of proof imposed by § 77-5016(9), TERC could reverse the
Board’s valuations only if the Assessor carried the second bur-
den by showing that the Board’s valuations were unreasonable
or arbitrary. Because Rogge provided a basis for the Board to
find that the actual income figures were consistent with mar-
ket typical income, the Board’s valuations could not be found
unreasonable or arbitrary on that ground.
Attempting to defend TERC’s decision, the Assessor chal-
lenges the Board’s reliance on Rogge in several respects. First,
the Assessor posits that Rogge’s testimony was not competent
evidence, observing that Rogge did not perform a fee appraisal
and lacked mass appraisal experience. We are not persuaded.
Rogge appears to have acted in conformity with his statutory
role as a referee. See Neb. Rev. Stat. § 77-1502.01 (Reissue
2018) (setting forth referee’s duties). In addition, Rogge used
the same formula the Assessor used, with the only difference
being his use of actual figures as a basis for the properties’
income as we discussed above.
The Assessor 	also 	points 	out 	Rogge’s 	concession 	that
his recommendation to the Board contained the inaccurate
statement that the Taxpayers provided expense information.
However, Rogge went on to testify that he did not rely on
expense information provided by the Taxpayers and instead
based his recommendation on the same expense ratio imple-
mented by the Assessor.
Finally, the Assessor challenges Rogge’s use of rental rates
for the properties from 2017 to arrive at valuations for 2020
and 2021. We are not convinced that this made the Board’s
reliance on Rogge’s recommendation unreasonable. As we
have explained, TERC cited industry standards stating that
actual figures could be used as long as they were verified or

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
consistent with typical figures. Rogge testified that he used the
online database to confirm that the 2017 rental rates provided
by the Taxpayers were in line with estimated rental rates for
the properties for 2020 and 2021.
For the reasons we have discussed, we find that the Board’s
valuations were not unreasonable or arbitrary, and that TERC’s
decision to the contrary was unreasonable.
The Assessor’s Alternative
Grounds to Affirm.
The Assessor asserts that two alternative grounds warrant
affirming TERC’s decision. We are unpersuaded.
First, the Assessor submits that the Taxpayers’ appeal should
fail because the valuations adopted by the Board were not
fairly and proportionately equalized with other properties. See
Cain v. Custer Cty. Bd. of Equal., 315 Neb. 809, 1 N.W.3d
512 (2024). The Assessor points us to brief testimony that the
Board’s valuation of the Taxpayers’ properties created a lack
of equalization within the taxation class. With little explana-
tion, the Assessor raises a complex issue. See Lancaster Cty.
Bd. of Equal. v. Moser, 312 Neb. 757, 980 N.W.2d 611 (2022).
But we find both the Assessor’s articulation of its position and
the evidence cited in support of it to be conclusory, and we
decline to address it further. See, e.g., In re Guardianship of
Patrick W., 316 Neb. 381, 4 N.W.3d 833 (2024) (conclusory
assertions unsupported by coherent analytical argument fail to
satisfy requirement that appellant’s brief must both specifically
assign and specifically argue errors).
Second, the Assessor argues that the doctrine of unclean
hands mandates affirming TERC’s decision. The Assessor sug-
gests that the Taxpayers withheld financial information rel-
evant to their income. We see no reason to affirm on this basis.
CONCLUSION
In light of our reasoning above, we conclude that TERC
erred 	in 	reversing 	the 	Board’s 	decision. Accordingly, 	we

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
PINNACLE ENTERS. v. SARPY CTY. BD. OF EQUAL.
Cite as 320 Neb. 303
reverse TERC’s decision and remand the cause to TERC
with directions to affirm the Board’s valuations of $7,450,829
and $3,559,566 for the respective parcels for tax years 2020
and 2021.
Reversed and remanded with directions.