Cargill Meat Solutions v. Colfax Cty. Bd. of Equal.
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Nebraska Advance Sheets
cargill meat solutions v. colfax cty. bd. of equal.
Cite as 281 Neb. 93
93
Even when the harm to the product itself occurs through
an abrupt, accident-like event, the resulting loss due to
repair costs, decreased value, and lost profits is essentially
the failure of the purchaser to receive the benefit of its bargain—traditionally the core concern of contract law. . . .
....
. . . The maintenance of product value and quality is precisely the purpose of express and implied warranties. . . .
Contract law, and the law of warranty in particular,
is well suited to commercial controversies of the sort
involved in this case because the parties may set the terms
of their own agreements.22
In this case, the only damage done was to Dobrovolny’s truck,
and therefore, the economic loss doctrine bars recovery under
products liability law.
CONCLUSION
We find that the economic loss doctrine prevents recovery
under a products liability theory where the damage is solely to
the product. We therefore reverse the decision of the Court of
Appeals and remand the matter with directions to reinstate the
decision of the district court.
R eversed and remanded with directions.
22
East River S.S. Corp., supra note 16, 476 U.S. at 870-73.
Cargill Meat Solutions Corporation, appellee, v.
Colfax County Board of Equalization, appellant.
___N.W.2d___
Filed February 4, 2011. No. S-09-1252.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Statutes. Statutory interpretation is a question of law.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, an appellate court must determine whether it has jurisdiction.
4. Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning
of a statute, the Supreme Court gives effect to the purpose and intent of the
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Legislature as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
5. ____: ____: ____: ____. When possible, an appellate court determines the legislative intent from the language of the statute itself.
6. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
Appeal from the Tax Equalization and Review Commission.
Appeal dismissed.
Edmond E. Talbot III, of Talbot & Truhlsen Law Offices,
L.L.P., for appellant.
Edward E. Embree II and Linda A. Terrill, of Neill, Terrill &
Embree, for appellee.
Heavican, C.J., Wright, Connolly, Gerrard, Stephan,
McCormack, and Miller-Lerman, JJ.
Connolly, J.
Colfax County Board of Equalization (the Board) appeals
a decision of the Tax Equalization and Review Commission
(TERC). TERC vacated and reversed the Board’s valuation
of a meatpacking facility owned by Cargill Meat Solutions
Corporation (Cargill) and assigned a lower value to the facility.
Unfortunately for the Board, the Legislature’s 1997 amendment
to the statute governing appeals from TERC created a jurisdictional trap that ensnared the Board. Because the Board did not
comply with any statute which would confer jurisdiction upon
this court, we conclude that we do not have jurisdiction over
this appeal. The appeal is dismissed.
BACKGROUND
Because we ultimately decide this appeal on a jurisdictional
issue, a lengthy recitation of the facts is unnecessary. We provide only a brief overview.
Cargill owns a facility that it uses to slaughter cattle and
pack meat. Colfax County (the County) had an appraisal conducted to value the property as of January 1, 2000. Using a cost
approach, the appraiser valued the property at $21,300,700.
The County did not have a full appraisal done after the 2000
appraisal. Instead, the County just updated the 2000 appraisal.
Nebraska Advance Sheets
cargill meat solutions v. colfax cty. bd. of equal.
Cite as 281 Neb. 93
95
To do this, it calculated the value of any improvements made
to the property and simply added that number to the value of
the property from the previous year. This approach did not
account for any depreciation on the improvements from year
to year.
The County repeated this process every year from 2001 to
2008. The value that the County arrived at for the year 2008
was $26,191,375. Cargill protested this value. The Board, after
considering the protest, recommended that no change be made
in the valuation. Cargill then appealed to TERC.
TERC ultimately vacated and reversed the Board’s determination of value. TERC rejected the Board’s valuation because
there was “clear and convincing evidence that the . . . Board’s
determination of actual value [was] based on a use of the cost
approach that did not consistently apply a method for determining either physical or functional depreciation.” According
to TERC, a value reached using such an approach was “unreasonable or arbitrary.”
TERC also considered the methodologies used by Cargill’s
appraiser, who used both a cost approach and a sales comparison approach. TERC concluded that Cargill’s appraisal based
on the sales comparison approach was “not persuasive.” It
determined that the appraiser had not made adjustments based
upon the use of the property, the location of the property, and
the physical characteristics of the property other than refrigeration. But while Cargill’s cost approach appraisal was less
detailed than the Board’s, TERC found that it still met professional standards. TERC ultimately concluded that the value of
the land and the improvements together was $14,809,190.
After TERC vacated and reversed the Board’s valuation, the
Board appealed. The Board filed a “Petition for Judicial Review
and Notice of Appeal” in the Nebraska Court of Appeals. The
Court of Appeals then issued a summons to be served upon
Cargill. The Court of Appeals instructed the Board to “serve
the summons on the respondent and file a return of service
directly with our office.” But instead of serving the summons
upon Cargill, the Board sent the summons to Cargill’s attorney. We then moved the case to our docket under our statutory
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authority to regulate the caseloads of the appellate courts of
this state.
Cargill moved to dismiss under Neb. Ct. R. App. P.
§ 2-107(B)(1) (rev. 2008). Cargill argued that the Board had
not complied with Neb. Rev. Stat. § 77-5019(2)(a) (Reissue
2009). This statute provides the procedure for commencing
a review of TERC decisions in the Court of Appeals. Cargill
argues that because the Board did not comply with this statute,
we do not have jurisdiction over the case.
STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of
law. Statutory interpretation is also a question of law.
ANALYSIS
[3] Before reaching the legal issues presented for review, we
must determine whether we have jurisdiction. That determination requires us to interpret § 77-5019(2)(a).
[4-6] In discerning the meaning of a statute, we give effect
to the purpose and intent of the Legislature as ascertained
from the entire language of the statute considered in its plain,
ordinary, and popular sense. When possible, we determine the
legislative intent from the language of the statute itself. And
we will not read into a statute a meaning that is not there.
The statute governing appeals from TERC to the Court of
Appeals, § 77-5019(2)(a), in relevant part, provides:
See Neb. Rev. Stat. § 24-1106 (Reissue 2008).
State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009); Connelly v.
City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).
See, State v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009); State v.
Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
See, Yos-Chiguil, supra note 2; South Sioux City Ed. Assn. v. Dakota Cty.
Sch. Dist., 278 Neb. 572, 772 N.W.2d 564 (2009).
See, Ricks v. Vap, 280 Neb. 130, 784 N.W.2d 432 (2010); In re Adoption
of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
See In re Adoption of Kailynn D., supra note 5.
See id.
Nebraska Advance Sheets
cargill meat solutions v. colfax cty. bd. of equal.
Cite as 281 Neb. 93
97
Proceedings for review shall be instituted by filing a
petition and the appropriate docket fees in the Court of
Appeals within thirty days after the date on which a final
appealable order is entered by the commission. All parties of record shall be made parties to the proceedings for
review. . . . Summons shall be served on all parties within
thirty days after the filing of the petition in the manner
provided for service of a summons in section 25-510.02.
Neb. Rev. Stat. § 25-510.02 (Reissue 2008) provides the manner for serving the state or a political subdivision. Obviously,
Cargill, a private corporation, is not an entity covered by
§ 25-510.02. Cargill cannot possibly be served in accordance
with § 77-5019(2)(a), so it cannot apply.
In an attempt to escape this procedural maze, the Board
argues that the applicable rule is Neb. Ct. R. App. P. § 2-101(D)
(rev. 2010), which is based on Neb. Rev. Stat. § 25-1937
(Reissue 2008). Section 2-101(D) states: “In an appeal from an
order of [a] tribunal from which an appeal can be taken directly
to this court, the procedure shall be that provided for in appeals
from the district court, except as otherwise provided by statute.” Because § 77-5019(2)(a) appears to provide the means for
appeal only by parties other than the State or a political subdivision, this rule could conceivably apply. We thus consider the
procedure for appeals to be taken from the district court, which
is found at Neb. Rev. Stat. § 25-1912 (Reissue 2008).
To perfect an appeal under § 25-1912, a party must take two
steps. First, the party wishing to appeal must file a notice of
appeal with the district court clerk of the court where the judgment was rendered. Second, the party must deposit a docket fee
with the district court clerk.
Although the Board urges us in this direction, it did not
comply with the rule. The Board filed its notice of appeal in
the Court of Appeals; it did not file its notice with TERC, as
would be the procedure analogous to an appeal from district
court. Thus, the Board’s appeal was not properly perfected
under § 2-101(D).
Because the Board failed to comply with any statute that
would grant us jurisdiction, we conclude that we do not have
jurisdiction.
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Summing up, one thing has become abundantly clear—the
Legislature has inadvertently created a procedural minefield.
Section 77-5019(2)(a) does not make sense. The statute states
“[s]ummons shall be served on all parties . . . in the manner provided for service of a summons in section 25-510.02.”
As mentioned, § 25-510.02 governs service of process on a
state or political subdivision. But not all parties to a TERC
hearing or a subsequent appeal are political subdivisions. It
defies the language of § 25-510.02 to require a county board
of equalization to serve a private party, such as Cargill, as if
it were a political subdivision. In effect, the current version of
§ 77-5019(2)(a) leads to two different means for perfecting an
appeal based upon the appellant’s status. We can think of no
sensible reason for doing this.
As Cargill points out in its brief, the previous version of
§ 77-5019(2)(a) required that summons be served “in the manner provided for service of a summons in a civil action.” This
language was workable. It provided the flexibility to allow a
corporation to be served as a corporation, an individual to
be served as an individual,10 and a political subdivision to be
served as a political subdivision.11 Stating the obvious, the
Legislature needs to correct this procedural trap.
CONCLUSION
Because the Board did not comply with any statute which
would confer jurisdiction upon this court, we conclude that we
lack jurisdiction. Accordingly, we dismiss this appeal.
Appeal dismissed.
10
11
§ 77-5019(2)(a) (Reissue 1996).
Neb. Rev. Stat. § 25-509.01 (Reissue 2008).
Neb. Rev. Stat. § 25-508.01 (Reissue 2008).
§ 25-510.02.
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