Strode v. Saunders Cty. Bd. of Equal.

R andy and H elen StRode , appellantS,
v. SaundeRS C ounty BoaRd of
equalization, appellee .
815 N.W.2d 856
Filed May 4, 2012. 	Nos. S-11-352 through S-11-355.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Actions: Statutes: Time. The application of Neb. Rev. Stat. § 25-2221 (Reissue
2008) is not limited to proceedings in a court, and § 25-2221 applies to matters
of practice which are not necessarily enunciated in statutes.
4. Administrative Law: Actions: Time. In the absence of a specific imperative to
the contrary, Neb. Rev. Stat. § 25-2221 (Reissue 2008) applies to administrative
rules and regulations.
5. Administrative Law: Taxation: Time. A motion for rehearing filed pursuant to
442 Neb. Admin. Code, ch. 5, § 023.01 (2009), is a “motion” under 442 Neb.
Admin. Code, ch. 5, § 014.03C (2009), and therefore may be filed by facsimile if
the original is mailed or delivered within 24 hours.
Petitions for further review from the Court of Appeals,
inBody, Chief Judge, and SieveRS and MooRe, Judges, on appeal
thereto from the Tax Equalization and Review Commission.
Judgments of Court of Appeals reversed, and causes remanded
with directions.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for
appellants.
Scott Tingelhoff, Saunders County Attorney, for appellee.
H eaviCan, C.J., WRigHt, C onnolly, StepHan, MCC oRMaCk ,
and M illeR-leRMan, JJ.
M illeR-leRMan, J.
NATURE OF CASE
In these consolidated appeals, we granted the petitions
for further review filed by the appellants, Randy and Helen
Strode. The underlying cases involve the Strodes’ unsuccess-
ful challenge to the valuation of certain property located in
Saunders County. The Nebraska Court of Appeals concluded
that the Strodes’ appeals were not timely filed in the Court
802 	283 NEBRASKA REPORTS
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of Appeals and dismissed their appeals for lack of jurisdic-
tion. The jurisdictional issue hinges on whether the Strodes’
motions for rehearing filed before the Tax Equalization and
Review Commission (TERC) were timely filed and there-
fore tolled the time during which the Strodes could there-
after petition the Court of Appeals to judicially review the
TERC’s decisions.
We conclude that the motions were timely filed before the
TERC and that therefore the time to petition to the Court of
Appeals was tolled and the Court of Appeals had jurisdiction
over the appeals. The Court of Appeals erred when it dismissed
the appeals as untimely. We further conclude that because the
motions for rehearing were timely filed before the TERC,
the TERC erred when it denied the motions as untimely. We
therefore reverse the ruling of the Court of Appeals and direct
the Court of Appeals to remand the cause to the TERC with
directions for the TERC to consider the merits of the Strodes’
motions for rehearing.
STATEMENT OF FACTS
The dates and filings that are relevant on further review are
the same in each of these consolidated appeals. Because the
same set of facts recited below pertains to each of the appeals,
for ease and clarity the appeals are discussed for the most part
in this statement of facts and in our analysis as if they were a
single appeal.
The 	Strodes 	appealed 	the 	Saunders 	County 	Board 	of
Equalization’s valuation for certain real property to the TERC.
On March 16, 2011, a panel of the TERC filed a decision
affirming the valuation. On March 28, the Strodes filed by
facsimile a motion for rehearing seeking consideration by the
full TERC. The Strodes followed the facsimile filing with the
original motion, which was file stamped as being received by
the TERC on March 29.
On March 30, 2011, the TERC concluded that the Strodes
failed to timely file the motion for rehearing, and for that rea-
son, the motion was denied. The TERC noted in its order that
under its rule 442 Neb. Admin. Code, ch. 5, § 023.01 (2009),
any party to a proceeding heard by a panel of the TERC may
STROdE v. SAUNdERS CTy. Bd. OF EqUAL. 	803
Cite as 283 Neb. 802

file a motion for rehearing before the full TERC and such
motion must be filed “within ten (10) calendar days of the date
that the [d]ecision . . . was filed.” The TERC noted in its order
that “[o]n March 28, 2011, the Appellant filed a Motion for
Rehearing via facsimile.” Without further analysis, the TERC
ordered the motion for rehearing denied as untimely.
On May 2, 2011, the Strodes filed a petition for review in
the Court of Appeals. In their petition for review, they stated
that the final decisions at issue were the March 16 order, which
affirmed the valuation, and the March 30 order, which denied
the motion for rehearing as untimely filed. With respect to the
TERC’s March 30 order, the Strodes asserted in the petition
for review that the TERC erred when it determined that the
“Motion for Rehearing dated and fax-filed on March 28 . . .
was filed out of time.”
The Court of Appeals determined that the appeal to it was
untimely and dismissed the appeal for lack of jurisdiction. In
its initial order dismissing the appeal, the Court of Appeals
stated that the motion for rehearing “filed March 29, 2011”
before the TERC was out of time and did not toll the filing
of a petition for review by the Court of Appeals pursuant to
Neb. Rev. Stat. § 77-5005(4) (Reissue 2009), which provides
in part, “The thirty-day filing period for appeals under subsec-
tion (2) of section 77-5019 [which provides for judicial review
by the Court of Appeals of a final decision of the TERC] shall
be tolled while a motion for rehearing [before the TERC] is
pending.” In the view of the Court of Appeals, the motion for
rehearing filed before the TERC was a nullity, and it therefore
examined timeliness to it based on the March 16, 2011, order.
The Court of Appeals determined that because the Strodes’
petition for review to the Court of Appeals was filed on May 2,
which was more than 30 days after the March 16 order, and the
motion for rehearing filed before the TERC was untimely and
did not toll the time to appeal to the court, the appeal was not
timely and should be dismissed.
The Strodes filed a motion for rehearing in the Court of
Appeals in an effort to persuade the Court of Appeals that
their motion for rehearing filed before the TERC was timely
and tolled the time to file for judicial review by the Court of
804 	283 NEBRASKA REPORTS

Appeals. The Strodes noted that the 10th and 11th calendar
days following the March 16, 2011, decision were a Saturday
and a Sunday. They asserted that Neb. Rev. Stat. § 25-2221
(Reissue 2008), which provides generally for the manner
by which days shall be computed, applied to the calculation
of time to file a motion for rehearing with the TERC. The
Strodes contend that under § 25-2221, the motion for rehear-
ing in this case was due before the TERC by the first busi-
ness day following the 10th calendar day, and that therefore
their filing of the motion by facsimile on Monday, March 28,
was timely.
The Court of Appeals adhered to its view that the appeal
to it was untimely and denied the motion for rehearing. In the
order denying the motion, the Court of Appeals stated that the
“[m]otion for rehearing [in the TERC] was file-stamped on
March 29, 2011, which was untimely as such motion needed
to be filed by March 28.” With regard to the facsimile filing
of the motion on March 28, the Court of Appeals stated that
the “TERC is not a ‘court’ within the meaning of Neb. Ct. R.
6-601 authorizing filing by fax in ‘courts.’ See also, 442 Neb[.]
Admin. Code, ch. 5, § 001.07C (TERC does not accept appeals
by fax).” The Strodes’ appeal to the Court of Appeals was thus
dismissed as untimely.
We granted the Strodes’ petition for further review.
ASSIGNMENT OF ERROR
The Strodes assert that the Court of Appeals erred when
it concluded they did not timely file their petition for review
to the Court of Appeals and dismissed their appeal for lack
of jurisdiction.
STANdARdS OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law. Big John’s Billiards v. State,
ante p. 496, 811 N.W.2d 205 (2012). We independently review
questions of law decided by a lower court. Id.
ANALySIS
The question whether the Strodes timely filed their petition
for review with the Court of Appeals depends on whether their
STROdE v. SAUNdERS CTy. Bd. OF EqUAL. 	805
Cite as 283 Neb. 802

motion for rehearing filed before the TERC was timely and
therefore tolled the time to petition the Court of Appeals for
judicial review. Under Neb. Rev. Stat. § 77-5019 (Cum. Supp.
2010), a party aggrieved by a final decision in a case appealed
to the TERC is entitled to judicial review in the Court of
Appeals and a petition for judicial review must be filed within
30 days after the date a final, appealable order is entered by the
TERC. Under § 77-5005(4), the 30-day filing period is tolled
while a motion for rehearing is pending.
The question whether the time was tolled depends on
whether the motion for rehearing of the March 16, 2011,
decision was timely filed before the TERC. In the present
case, the Strodes’ motion filed by facsimile on March 28
was timely if (1) § 25-2221 is applicable to the calculation
of time to file a motion for rehearing with the TERC and (2)
a motion for rehearing filed before the TERC may be filed
by facsimile. The TERC and the Court of Appeals both con-
cluded that the motion for rehearing filed before the TERC
was not timely, albeit for different reasons. The TERC deter-
mined that although facsimile filing was proper, § 25-2221
did not apply and the March 28 filing was untimely; the
Court of Appeals determined that § 25-2221 applied but
that facsimile filing was not proper and the March 29 filing
was untimely. Because we conclude that § 25-2221 applies
and that facsimile filing of a motion for rehearing is proper,
we conclude that both lower tribunals erred. As explained
below, we specifically conclude that the Strodes timely filed
their motion for rehearing before the TERC by facsimile
on March 28 and that because they were entitled to tolling,
their petition for judicial review with the Court of Appeals
was timely.
We must first determine the date by which the Strodes
were required to file the motion for rehearing before the full
TERC. Under the TERC’s rule § 023.01, any party to a pro-
ceeding heard by a panel of the TERC may file a motion for
rehearing before the full TERC and such motion must be filed
“within ten (10) calendar days of the date that the [d]ecision
. . . was filed.” The decision at issue in this case was filed
on March 16, 2011, and the 10th calendar day following the
806 	283 NEBRASKA REPORTS

decision was March 26. Because March 26 was a Saturday, if
§ 25-2221 applies, then the Strodes had until the next business
day, Monday, March 28, to file a motion for rehearing.
Section 25-2221 provides in part:
Except as may be otherwise more specifically pro-
vided, the period of time within which an act is to be
done in any action or proceeding shall be computed
by excluding the day of the act, event, or default after
which the designated period of time begins to run. The
last day of the period so computed shall be included
unless it is a Saturday, a Sunday, or a day during which
the offices of courts of record may be legally closed as
provided in this section, in which event the period shall
run until the end of the next day on which the office will
be open.
[3,4] In Geddes v. York County, 273 Neb. 271, 276, 729
N.W.2d 661, 666 (2007), we stated that § 25-2221 “estab-
lishes a uniform rule applicable alike to the construction
of statutes and to matters of practice. We have regularly
applied § 25-2221 and its predecessors in computing time
periods specified in other statutes.” In State ex rel. Wieland v.
Beermann, 246 Neb. 808, 811, 523 N.W.2d 518, 522 (1994),
we concluded that the application of § 25-2221 was not lim-
ited to court proceedings, stating that “[a]lthough the term
‘action or proceeding’ generally refers to business before a
court or judicial officer, the term is not restricted in applica-
tion to those actions which occur within the walls of a court-
room.” We further stated:
“A statutory rule for the computation of time is usu-
ally construed as a general provision relating to all acts
required and permitted by law, unless an intention to the
contrary affirmatively appears or a different construction
seems imperative, and it may be applied in matters of
practice as well as in the construction of statutes . . . .”
246 Neb. at 812, 523 N.W.2d at 523 (quoting 86 C.J.S. Time
§ 8 (1954)). The application of § 25-2221 is not limited to
proceedings in a court, and § 25-2221 applies to matters of
practice which are not necessarily enunciated in statutes. We
therefore conclude that in the absence of a specific imperative
STROdE v. SAUNdERS CTy. Bd. OF EqUAL. 	807
Cite as 283 Neb. 802

to the contrary, § 25-2221 applies to administrative rules and
regulations, such as the TERC’s rule § 023.01 regarding the
time to file a motion for rehearing.
We find nothing in the statutes or rules and regulations gov-
erning the TERC that makes specific provision for computing
time when the last day for filing a motion for rehearing falls on
a Saturday, Sunday, or holiday. Because nothing is otherwise
specifically provided with regard to the calculation of time for
filing a motion for rehearing with the TERC, we conclude that
§ 25-2221 applies to such calculation and that therefore the
last day to file the motion for rehearing of the TERC panel’s
March 16, 2011, decision was Monday, March 28, which was
the first business day following the 10th calendar day after
the decision.
In related areas, we note for completeness that the TERC’s
rule 442 Neb. Admin. Code, ch. 5, § 001.08E (2009), provides
that with regard to the filing of an appeal to the TERC, “[i]f a
filing deadline is on a weekend or state or federally recognized
holiday, the next business day becomes the filing deadline.”
See, also, Neb. Rev. Stat. § 49-1203 (Reissue 2010) (“[i]f the
date for filing any . . . tax valuation, equalization, or exemp-
tion protest, . . . petition, [or] appeal . . . falls upon a Saturday,
Sunday, nonjudicial day, or legal holiday, such filing . . . shall
be considered timely if performed in person or postmarked
on the next business day”). These provisions are compatible
with our determination that the method for computing time in
§ 25-2221 should be applied in this case.
Based on the foregoing, the TERC erred when it deter-
mined that the Strodes’ motion that was filed on March 28,
2011, was not timely. And although the Court of Appeals
correctly determined that § 25-2221 applied and that the
motion for rehearing had to be filed by March 28, it erred
when it did not recognize that the motion for rehearing could
be filed with the TERC by facsimile and that the March 28
motion for rehearing, filed by facsimile on March 28, was in
fact timely.
A review of the Court of Appeals’ orders shows the Court
of Appeals reasoned that the Strodes’ filing by facsimile on
March 28, 2011, was not filed by a proper method and that
808 	283 NEBRASKA REPORTS

therefore the motion was not filed until March 29, when
the TERC received the original motion. In concluding that
filing the motion for rehearing by facsimile was not proper,
the Court of Appeals cited 442 Neb. Admin. Code, ch. 5,
§ 001.07C (2009), which provides, “Facsimile copies of an
appealpetition will not be accepted for filing by the [TERC].”
(Emphasis supplied.) However, we note that elsewhere, 442
Neb. Admin. Code, ch. 5, § 014.03C (2009), provides that
“[a]ny motion or objection to a motion may be filed with the
[TERC] by facsimile if the original is mailed or delivered
to the [TERC] within twenty-four (24) hours of the facsim-
ile transmission.”
[5] Under the TERC’s rules, although an appeal or petition
to the TERC may not be filed by facsimile, a motion may be
filed by facsimile if the original is mailed or delivered with 24
hours. There is no suggestion in this case that this facsimile
rule exceeded the TERC’s statutory authorization. Compare
Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260
Neb. 905, 620 N.W.2d 90 (2000) (stating that Neb. Rev. Stat.
§ 77-1510 (Cum. Supp. 2000) as it was then written did not
authorize TERC to promulgate “mailbox rule”). We decide
the jurisdictional issue in this case as a matter of law. See Big
John’s Billiards v. State, ante p. 496, 811 N.W.2d 205 (2012).
We conclude that a motion for rehearing filed pursuant to the
TERC’s rule § 023.01 is a “motion” under its rule § 014.03C
and therefore may be filed by facsimile if the original is mailed
or delivered within 24 hours. Therefore, where the Strodes filed
their motion for rehearing by facsimile on March 28, 2011,
and the original was stamped as being filed with the TERC on
March 29, the Strodes timely filed their motion for rehearing
before the TERC.
In sum, the TERC correctly concluded that the filing by
facsimile on March 28, 2011, was proper, but the TERC
erred when it failed to apply the manner by which to com-
pute days under § 25-2221 and concluded that the motion
was not timely filed. By contrast, the Court of Appeals cor-
rectly applied § 25-2221 and concluded that the Strodes had
until March 28 to file the motion, but the Court of Appeals
erred when it concluded that filing a motion for rehearing by
STROdE v. SAUNdERS CTy. Bd. OF EqUAL. 	809
Cite as 283 Neb. 802

facsimile was not allowed and that the motion was untimely
because the original was not filed until March 29. As noted
above, we conclude that § 25-2221 applied and that filing
the motion for rehearing by the full TERC by facsimile was
allowed; therefore, the Strodes timely filed their motion for
rehearing on March 28.
Because the motion for rehearing was timely filed before
the TERC on March 28, 2011, pursuant to § 77-5005(4), the
motion tolled the time for the Strodes to petition for judicial
review in the Court of Appeals. In this case, the time was
tolled until the TERC ruled on the motion for rehearing on
March 30. The 30th day following the TERC’s March 30 order
denying the motion was Friday, April 29, 2011, which was a
court holiday in Nebraska—Arbor day. The next 2 days were
a Saturday and a Sunday, and therefore, the next business day
following April 29 was Monday, May 2. Because § 25-2221
applies to the time to file a petition for review with the Court
of Appeals, the Strodes’ petition for review was timely filed
on May 2. Therefore, the Court of Appeals had jurisdiction
of the appeal and erred when it determined that the appeal
to that court was untimely and dismissed the appeal for lack
of jurisdiction.
As noted above, the Strodes asserted in their petition for
judicial review by the Court of Appeals that the TERC erred
when it determined in its March 30, 2011, order that the
“Motion for Rehearing dated and fax-filed on March 28 . . .
was filed out of time.” As discussed above, we agree with the
Strodes that the TERC erred in such determination. Rather
than denying the motion as being filed out of time, the TERC
should have considered the merits of the Strodes’ motion for
rehearing before the full TERC. The proper resolution of this
appeal on further review is to make provision in our order
that the TERC consider the Strodes’ motion for rehearing. We
therefore reverse the order of the Court of Appeals which dis-
missed the Strodes’ appeal as untimely and direct the Court of
Appeals to reverse the March 30, 2011, TERC order denying
the motion for rehearing as untimely and to remand the cause
to the TERC to consider the Strodes’ timely filed motion for
rehearing on its merits.
810 	283 NEBRASKA REPORTS

CONCLUSION
In these consolidated appeals, we conclude that the Strodes’
motions for rehearing before the full TERC were timely filed
by facsimile on March 28, 2011, thus tolling the time for fil-
ing petitions for review with the Court of Appeals until the
TERC ruled on the motions, which ruling occurred on March
30. The Strodes timely filed their petitions for judicial review
with the Court of Appeals on May 2, and the Court of Appeals
erred when it dismissed these appeals for lack of jurisdiction
as untimely filed. The TERC erred when it determined that the
motions for rehearing were filed out of time, and instead of
denying the motions as untimely, the TERC should have con-
sidered the motions for rehearing on their merits. On further
review, we reverse the Court of Appeals’ dismissal of these
appeals and remand these appeals to the Court of Appeals with
directions to reverse the TERC’s denial of the motions for
rehearing as untimely and to remand the causes to the TERC
with directions to the TERC to consider the merits of the
motions for rehearing.
R eveRSed and ReManded WitH diReCtionS.
SPITz v. T.O. HAAS TIRE CO. 	811
Cite as 283 Neb. 811
CHRiSty Spitz , aS SuRviving SpouSe of RogeR MCCannon
and aS next fRiend of danielle e. Spitz-MCCannon,
appellant, v. t.o. H aaS tiRe C o., and itS inSuReR,
C inCinnati CaSualty C o., appelleeS.
815 N.W.2d 524
Filed May 4, 2012. 	No. S-11-620.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court
review panel, a higher appellate court reviews the trial judge’s findings of fact,
which will not be disturbed unless clearly wrong.
2. ____: ____. An appellate court independently reviews questions of law decided
by a lower court.
3. Marriage: Proof. In Nebraska, a couple cannot create a common-law marriage
by agreement or cohabitation and reputation.
Appeal from the Workers’ Compensation Court. Affirmed.