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raised by the facts, but not presented in the pleadings, should 

not come at the expense of due process.” 273 Neb. at 1053, 

736 N.W.2d at 373.

In the present case, the amended complaint filed by Matt 

sought to modify custody and to award full custody to him. 

Although Brittni and Cristian expressed a preference during 

the custody hearing for a schedule in which they would stay 

with their parents by alternating 1 week at a time, no complaint to modify the parenting plan to this or other effect was 

filed. See § 42-364(6). The district court correctly observed 

that the issue of modifying the parenting plan was not properly 

before it.

CONCLUSION

The district court did not err when it denied Matt’s amended 

complaint to modify custody, in which he sought full custody 

of the children. Furthermore, the district court did not err when 

it observed that the issue of modifying the parenting plan was 

not properly before it. Thus, we affirm.

Affirme

Miller-Lerman, J., participating on brie

Lozier Corporation, appellant, v. Douglas

Board of Equalization, appell

___ N.W.2d ___

Filed April 19, 2013. Nos. S-12-322 through S-12-324.

1. Taxation: Judgments: Appeal and Error. An appellate court reviews decisions 

rendered by the Tax Equalization and Review Commission for errors appearing 

on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is not arbitrary, capricious, 

or unreasonable.

3. Taxation: Appeal and Error. An appellate court reviews questions of law arising during appellate review of decisions by the Tax Equalization and Review 

Commission de novo on the record.

4. Taxation: Statutes. The plain language of Neb. Rev. Stat. § 77-5013(2) (Cum. 

Supp. 2012) focuses on whether a mailing is properly placed in the mail, rather 

than on whether the Tax Equalization and Review Commission receives it.
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5. Statutes: Legislature: Intent. The intent of the Legislature may be found 

through its omission of words from a statute as well as its inclusion of words in 

a statute.

6. Statutes: Notice: Intent: Words and Phrases. The intent of the “legible postmark” requirement in Neb. Rev. Stat. § 77-5013(2) (Cum. Supp. 2012) is to act as 

evidence of the date an appeal is mailed. A postage meter stamp, when viewed in 

the context of the pertinent U.S. Postal Service regulations, satisfies this purpose 

and is a “postmark” within the meaning of § 77-5013(2).

7. Statutes: Jurisdiction. An appellate court strictly construes jurisdictional 

statutes.

8. Statutes: Jurisdiction: Legislature: Intent: Appeal and Error. If the meaning 

of an ambiguous jurisdictional statute is unclear, even after reviewing the legislative history, the statute’s purpose, and other resources, only then would an appellate court give it its most narrow interpretation.

Appeals from the Tax Equalization and Review Commission. 

Reversed.

James F. Cann, of Koley Jessen, P.C., L.L.O., for appellant.

Theresia M. Urich and Malina Dobson, Deputy Douglas 

County Attorneys, for appellee. 

Heavican, C.J., Wright, Connolly, Stephan, M

and Cassel, JJ

Connolly,

NATURE OF THE CASE

Lozier Corporation (Lozier) mailed three appeals to the Tax 

Equalization and Review Commission (TERC). Though Lozier 

mailed the appeals before the filing deadline, TERC did not 

receive the appeals until after the deadline had passed. A latearriving appeal may still be timely if the mailing meets certain 

requirements under Neb. Rev. Stat. § 77-5013(2) (Cum. Supp. 

2012). TERC determined that the mailing did not meet those 

requirements and dismissed the appeals as untimely. The primary issue is whether a postage meter stamp is a “postmark” 

under § 77-5013(2).

BACKGROUND

Lozier claimed that the Douglas County Board of 

Equalization (the Board) had overvalued three parcels of land. 
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Lozier hired an accounting firm—Marks Nelson Vohland 

Campbell Radetic LLC (Marks Nelson)—to prepare and file 

three property tax appeals. The deadline to file the appeals was 

September 12, 2011.

The record shows that Marks Nelson prepared the appeals, 

placed them in a single envelope, marked the envelope with 

its postage meter, and then mailed the envelope by certified 

mail to TERC on September 1, 2011. But the envelope did not 

arrive at TERC. Instead, for unknown reasons, it arrived back 

at Marks Nelson on September 15. At that point, Marks Nelson 

marked its envelope with additional postage (using its postage meter) to send the envelope certified mail, return receipt 

requested. Making no other changes to the envelope, Marks 

Nelson again mailed it to TERC. TERC received the envelope 

on September 20.

TERC entered an order to show cause as to why it should 

not dismiss the appeals as untimely. A partner with Marks 

Nelson testified for Lozier to the above facts. He, along with 

a corporate officer at Lozier, argued that they had timely filed 

the appeals under § 77-5013(2). That section provides, in 

relevant part, that an appeal is timely filed “if placed in the 

United States mail, postage prepaid, with a legible postmark 

for delivery to [TERC] on or before the date specified by law 

for filing the appeal.”

TERC first noted that the envelope did not have a U.S. 

Post Office “cancel[l]ation mark” but that it did have “two 

different Pitney Bowes postage labels” from Marks Nelson’s 

postage meter. TERC noted that while there was “credible evidence that the envelope was placed in the United States Mail 

prior to September 15, 2011, . . . that envelope was delivered 

to . . . Marks Nelson . . . rather than to [TERC].” So TERC 

concluded that the envelope was in Marks Nelson’s possession on September 15, 2011, and “not appropriately placed 

in the United States mail for delivery to [TERC] prior to that 

date.” Finally, TERC concluded that the envelope arrived at 

TERC “without a legible postmark.” TERC therefore determined that the appeals were untimely and dismissed them for 

lack of jurisdiction.
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ASSIGNMENT OF ERROR

Lozier assigns, consolidated and restated, that TERC erred 

in concluding that Lozier did not timely file its appeals under 

§ 77-5013(2).

STANDARD OF REVIEW

[1-3] We review TERC decisions for errors appearing on the 

record.1 When reviewing a judgment for errors appearing on 

the record, our inquiry is whether the decision conforms to the 

law, is supported by competent evidence, and is not arbitrary, 

capricious, or unreasonable.2 We review questions of law arising during appellate review of TERC decisions de novo on 

the record.3

ANALYSIS

The issue is whether Lozier complied with the statutory 

requirements for a timely appeal under § 77-5013(2). Section 

77-5013(2) states, in relevant part, that an appeal “is timely 

filed . . . if placed in the United States mail, postage prepaid, with a legible postmark for delivery to [TERC] on or 

before the date specified by law for filing the appeal.” We 

previously addressed a version of this “mailbox rule” in 

Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm.,

4

 where 

we concluded that TERC lacked the authority to adopt the 

rule because it improperly expanded its jurisdiction. But the 

Legislature obviously has the authority to adopt such a rule, 

which it did in § 77-5013(2) after our decision in Creighton 

St. Joseph Hosp.

5

At the outset, the Board argues that the September 1, 

2011, mailing was irrelevant and that TERC properly focused 

1 See, e.g., Republic Bank v. Lincoln Cty. Bd. of Equal., 283 Neb. 721, 811 

N.W.2d 682 (2012).

2 See id.

3 See id.

4 Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. 905, 620 

N.W.2d 90 (2000).

5 See, § 77-5013(2); 2001 Neb. Laws, L.B. 170, and 2004 Neb. Laws, 

L.B. 973.
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on the September 15 mailing. The Board argues that this is 

so “because it is from this re-deposit into the U.S. mail on 

September 15 . . . that the envelope was eventually delivered 

to [TERC].”6 In other words, because the September 15 mailing arrived at TERC and the September 1 mailing did not, the 

Board claims that the September 15 mailing must be the focus 

of our analysis.

We give statutory language its plain and ordinary meaning,7

and we will not read into a statute a meaning that is not there.8

Section 77-5013(2) does not provide that the mailing which 

arrived controls over a prior mailing which did not. Instead, 

§ 77-5013(2) focuses only on whether the appeal was properly placed in the mail with sufficient postage and a legible 

postmark for delivery to TERC before the filing deadline. So 

whether the mailing actually arrived the first time has no bearing on whether TERC acquired jurisdiction. And this makes 

sense. If the Board’s position was correct, then any time a 

person’s appeal was returned after the last filing date, even 

if the person had done everything correctly and according to 

§ 77-5013(2), the appeal would be untimely. This would be an 

absurd result because it would penalize taxpayers for events 

not under their control.

The U.S. Tax Court rejected an argument similar to the 

Board’s in Estate of Marguerite M. Cranor.

9

 In that case, 

the petitioner mailed his petition on September 3, 1999, well 

before the September 7 deadline. The September 3 mailing 

was correct in all respects, but it was returned to the petitioner on September 16. The petitioner removed the petition 

from the returned envelope and remailed it in a new envelope 

that same day. The Commissioner of Internal Revenue contended that the second mailing was the only one that mattered, that it occurred after the September 7 deadline, and that 

6 Brief for appellee at 10.

7 See, e.g., Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).

8 See, e.g., Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 

(2012).

9 Estate of Marguerite M. Cranor, 81 T.C.M. (CCH) 1111 (2001).
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therefore, the court lacked jurisdiction to reach the merits of 

the petition.10

The court rejected the Commissioner of Internal Revenue’s 

argument:

[S]ection 7502(a) does not require that the qualifying 

envelope (i.e., the envelope which was timely mailed, 

properly addressed, and bore the proper postage) be the 

envelope in which the petition is received; nor does section 

7502(a) bar application of the “timely mailing is timely 

filing” rule if a petition contained in a properly addressed 

envelope (that otherwise meets the above requirements) is 

returned to, and remailed by, the taxpayer.11

[4] The same reasoning applies here. We reject the Board’s 

argument that the September 1, 2011, mailing is irrelevant to 

our inquiry. The plain language of § 77-5013(2) focuses on 

whether the mailing was properly placed in the mail, rather 

than on whether TERC received it. And because the September 

15 mailing obviously occurred after the filing deadline, only 

the September 1 mailing could have conferred jurisdiction on 

TERC. It must be the focus of our analysis.

There is no dispute that Lozier placed the envelope “in 

the United States mail” on September 1, 2011, or that the 

September 1 mailing was before the September 12 filing 

deadline. Nor is there any dispute that the envelope had the 

proper postage. The only issues are whether Lozier placed the 

envelope in the mail “for delivery to [TERC]” and whether 

the mailing had “a legible postmark.”

TERC seemingly concluded, and the Board now argues, that 

Lozier had not placed the envelope in the mail “for delivery to 

[TERC]” because it arrived at Marks Nelson’s offices rather 

than at TERC. But errors are known to occur in the postal system, and the fact that Lozier’s September 1, 2011, mailing did 

not arrive at TERC is not dispositive. And when viewed with 

the rest of the evidence, we conclude that both TERC’s conclusion and the Board’s argument are unreasonable.

10 See id.

11 Id. at 1113.
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There is no dispute that Lozier intended to appeal several 

tax valuations and that it could only do so by sending the 

appropriate documents to TERC. It stands to reason, then, that 

Lozier intended to mail the documents to TERC so its appeals 

could be heard. Testimony supports this conclusion. A corporate officer at Lozier testified that Marks Nelson, on behalf 

of Lozier, mailed the appeals to TERC for review. A partner 

with Marks Nelson also testified that Marks Nelson mailed 

Lozier’s appeals to TERC for review. Additionally, the parties 

do not dispute that the envelope contained an accurate address 

for TERC. And when Marks Nelson remailed the envelope on 

September 15, 2011, with no changes from the September 1 

mailing other than adding postage for a return receipt, it did 

in fact arrive at TERC. We conclude that Lozier placed the 

envelope in the mail “for delivery to [TERC]” on September 

1 and that both TERC’s conclusion and the Board’s argument 

otherwise are unreasonable.

Still, the Board also argues that the mailing did not comply with U.S. Postal Service (USPS) regulations and so for 

that reason, Lozier did not place the envelope in the mail 

“for delivery to [TERC].” Specifically, the Board argues that 

the return address was not located in the top left corner of 

the envelope and that the Marks Nelson logo was below the 

delivery line of the delivery address. We find these arguments unpersuasive.

We may take judicial notice of federal agencies’ regulations.12 The USPS’ Domestic Mail Manual (DMM)13 has been 

incorporated by reference into the Code of Federal Regulations 

and has the force of law.14 It lists the types of mail which 

require a return address.15 The record shows that Marks Nelson 

mailed Lozier’s appeals on September 1, 2011, by certified 

mail, without a return receipt requested. The USPS apparently 

12 See Gase v. Gase, 266 Neb. 975, 671 N.W.2d 223 (2003).

13 Mailing Standards of the United States Postal Service, Domestic Mail 

Manual, http://about.usps.com/manuals/welcome.htm (last visited Apr. 11, 

2013).

14 See 39 C.F.R. §§ 111.1 through 111.4 (2012).

15 See DMM, supra note 13, § 602.1.5.3.
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does not require a return address for such a mailing.16 And 

although the USPS apparently recommends not placing a logo 

or label below the delivery line of the delivery address,17 we 

see no requirement to that effect in the DMM. So to the extent 

that the USPS’ regulations are relevant to whether Lozier 

placed its appeals in the mail “for delivery to [TERC],” in this 

case, they do not change our conclusion.

For an appeal to be timely filed, it must contain a legible 

“postmark” dated before the filing deadline. The record shows 

that the September 1, 2011, mailing had a Pitney Bowes postage meter stamp in the top right-hand corner of the envelope 

for $4.13. TERC impliedly determined, and the Board argues, 

that such a marking does not qualify as a “postmark.” Lozier, 

on the other hand, argues that such a marking does qualify as 

a “postmark.” This is an issue of first impression in Nebraska.

The meaning of a statute is a question of law,18 which we 

review de novo on the record.19 The Tax Equalization and 

Review Commission Act20 does not define “postmark”; in fact, 

it is not defined anywhere in the Nebraska statutes. Nor is it 

defined in our case law. TERC has, however, defined “postmark” in the Nebraska Administrative Code. There, TERC has 

defined “Postmark” as “[t]he cancellation mark of the [USPS]. 

The mark of any private delivery or courier service (such as 

FedEx, Airborne, UPS, etc.) is not a postmark.”21 The Board 

invites us to apply that definition here.

But that definition explicitly applies only when “used in 

the Rules and Regulations of [TERC],” and even then it does 

not apply if “the context of a term’s use requires a different definition.”22 Nor does it purport to define the statutory 

16 See id.

17 See United States Postal Service, Business Mail 101, http://pe.usps.com/

businessmail101/addressing/returnAddress.htm (last visited Apr. 11, 2013).

18 See, e.g., In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).

19 See, e.g., Republic Bank, supra note 1.

20 See Neb. Rev. Stat. § 77-5001 et seq. (Reissue 2009 & Cum. Supp. 2012).

21 442 Neb. Admin. Code, ch. 2, § 001.41 (2011).

22 Id., § 001.
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term “postmark” as used in § 77-5013(2), but only the term 

“postmark” as used in TERC’s rules and regulations. And 

although specifically defined, TERC’s rules and regulations 

never actually use the term “postmark.” We reject the Board’s 

invitation.

Again, we give statutory language its plain and ordinary 

meaning.23 “The plain meaning of the term connotes a mark 

placed on a mailed item.”24 Definitions for the term abound. 

For example, the USPS defines a “postmark” as follows:

A postal imprint made on letters, flats, and parcels that 

shows the name of the Post Office that accepts custody of 

the mail, along with the two-letter state abbreviation and 

ZIP Code of the Post Office, and for some types of mail 

the date of mailing, and the time abbreviation a.m. or p.m. 

The postmark is generally applied, either by machine or 

hand, with cancellation or killer bars to indicate that the 

postage cannot be reused.25

Black’s Law Dictionary defines a “postmark” as “[a]n official mark put by the post office on an item of mail to cancel 

the stamp and to indicate the place and date of sending or 

receipt.”26 And Webster’s defines a “postmark” as “an official postal marking on a piece of mail; specif: a mark showing the name of the post office and the date and sometimes 

the hour of mailing and often serving as the actual and only 

cancellation.”27 The first two definitions indicate that only 

the USPS may make a “postmark,” while the last definition could arguably include a postage meter stamp because 

the USPS authorizes and regulates postage meters’ use28; 

23 See, e.g., Spady, supra note 7.

24 See Chevron U.S.A. v. Department of Revenue, 154 P.3d 331, 334 (Wyo. 

2007).

25 United States Postal Service, Glossary of Postal Terms, http://about.usps.

com/publications/pub32 (last visited Apr. 11, 2013).

26 Black’s Law Dictionary 1286 (9th ed. 2009).

27 Webster’s Third New International Dictionary of the English Language, 

Unabridged 1772-73 (1993).

28 See DMM, supra note 13, § 604.
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so a postage meter stamp could be considered an “official 

postal marking.”29

A statute is ambiguous if it is susceptible of more than 

one reasonable interpretation.30 Based on the foregoing, we 

conclude that the meaning of the term “postmark” is ambiguous. It could mean only a mark made by the USPS or it could 

also mean marks made by postage meters, which the USPS 

licenses and regulates. We construe an ambiguous statute 

to give effect to its legislative purpose.31 Our review of the 

legislative history of § 77-5013 provided no guidance as to 

whether the term “postmark” was intended to include postage 

meter stamps.

There are apparently various kinds of postmarks. For example, the USPS recognizes and defines “[e]lectronic,” “local,” 

and “philatelic” postmarks.32 The Internal Revenue Service, 

in interpreting its own “‘timely mailing is timely filing’” 

rule, recognizes both USPS postmarks and non-USPS postmarks.33 Here, the Nebraska Legislature used only the unqualified, general term “postmark.” This is noteworthy because the 

Legislature has in other sections qualified the term “postmark.” 

For example, in Neb. Rev. Stat. § 77-27,125 (Reissue 2009), 

the Legislature used the term “United States postmark.” In 

Neb. Rev. Stat. § 86-644 (Reissue 2008), the Legislature used 

the term “electronic postmark.”

[5] Lozier accurately notes that the intent of the Legislature 

may be found through its omission of words from a statute as well as its inclusion of words in a statute.34 The 

Legislature knew and understood that there were various types 

29 See Severs v. Abrahamson, 255 Iowa 979, 124 N.W.2d 150 (1963).

30 See, e.g., In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (2012).

31 See, e.g., Blakely, supra note 8.

32 See Glossary of Postal Terms, supra note 25.

33 Estate of Marguerite M. Cranor, supra note 9, 81 T.C.M. at 1113. See 26 

C.F.R. § 301.7502-1 (2012). See, also, e.g., Kahle v. Commissioner, 88 

T.C. 1063 (1987).

34 See, e.g., In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 

(1999).
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of postmarks, but it chose to use the general, unqualified term 

“postmark.” Moreover, the Legislature was also presumably 

aware of the prevalence of postage meter use. “Federal legislation authorizing private postage meters has been in effect since 

1920 and, as long ago as 1961, forty-five percent of all mail 

in this country and half of the business mail was processed by 

private meters.”35 If the Legislature meant the term “postmark” 

to mean only a USPS postmark, it could have said so explicitly, 

as it has elsewhere. It did not.

[6] We construe statutes to give effect to the underlying 

purpose of the statute.36 Looking at the statute’s language, 

the intent of the “legible postmark” requirement was to act 

as evidence of the date the appeal was mailed.37 We conclude 

that a postage meter stamp, when viewed in the context of 

the pertinent USPS regulations, satisfies this purpose and is a 

“postmark” within the meaning of § 77-5013(2).

The USPS licenses and regulates the use of postage meters, 

as outlined in the DMM. Only authorized entities, such as 

Pitney Bowes, are able to provide postage meters, and no one 

but the USPS may actually own a postage meter.38 The use of 

postage meters is heavily regulated. Mailers are required to 

place metered mail in the mail by the labeled date or correct 

the date using a date correction indicium.39 Failure to do so 

will subject the mailer to penalties, such as loss of the postage 

meter.40 Additionally, a person who misuses a postage meter 

runs the risk of being criminally prosecuted.41 We believe these 

regulations are sufficient to qualify a postage meter stamp as 

satisfactory evidence of the date of mailing.

35 Chevron U.S.A., supra note 24, 154 P.3d at 338. See, also, Severs, supra 

note 29; Charles Pomeroy Collins, The Validity of Postmarks, 47 A.B.A. J. 

371 (1961).

36 See, e.g., Blakely, supra note 8.

37 See § 77-5013(2).

38 DMM, supra note 13, §§ 604.4.1.3 and 604.4.2.

39 Id., §§ 604.4.5.1 and 604.4.6.2.

40 Id., § 604.4.2.4.

41 See, Severs, supra note 29; 18 U.S.C. § 1001 (2006).
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Other courts have reached similar results, reasoning that 

a postage meter stamp is a “postmark” because heavy USPS 

regulation of postage meters safeguards its evidentiary value 

as to the date of mailing.42 We recognize that many of those 

courts operated under an older version of the DMM with different regulations. Most notably, the older versions of the 

DMM apparently included regulations indicating that the post 

office would inspect metered mail to ensure the postage meter 

stamp’s date accuracy.43 We have not found an equivalent regulation in the current DMM; rather, the onus appears to be on 

the mailer to correct any mistakes in the date of the postage 

meter stamp.44

But the absence of regulations explicitly saying that the 

USPS performs random checks of metered mail does not 

mean that a postal service worker would not correct, or 

bring to the mailer’s attention, an incorrect date. The current regulations clearly require mail to be dated accurately.45

Furthermore, in the absence of a contrary indication, lawful 

conduct—that mailers comply with the regulations—is presumed.46 Moreover, though those regulations are missing, it 

remains true that the USPS authorizes and heavily regulates 

postage meter use and that misuse of a postage meter can 

result in significant penalties. Under such circumstances, and 

in the absence of evidence showing that the mailer misused 

the meter, we conclude that a postage meter stamp satisfies 

the statute’s purpose of being evidence of the mailing date and 

that it is a “postmark.”

42 See, Chevron U.S.A., supra note 24; Abrams v. Ohio Pacific Exp., 819 

S.W.2d 338 (Mo. 1991); Haynes v. Hechler, 182 W. Va. 806, 392 S.E.2d 

697 (1990); Bowman v. Ohio Bur. of Emp. Serv., 30 Ohio St. 3d 87, 

507 N.E.2d 342 (1987); Severs, supra note 29; Frandrup v. Pine Bend 

Warehouse, 531 N.W.2d 886 (Minn. App. 1995); Gutierrez v. Industrial 

Claim App. Off., 841 P.2d 407 (Colo. App. 1992).

43 See, e.g., Bowman, supra note 42.

44 See DMM, supra note 13, § 604.4.6.2.

45 See id., §§ 604.4.5.1 and 604.4.6.1.

46 See, Coad v. Coad, 87 Neb. 290, 127 N.W. 455 (1910); Severs, supra

note 29.
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We recognize, too, that other courts have held differently.47

And although we agree that it is impossible for the USPS to 

“closely scrutinize all of the millions of meter-marked dates on 

the mail it processes,”48 we believe the risk of an inspection to 

the mailer (and its attendant penalties) sufficiently discourages 

any mismarking.

[7,8] Finally, it is true, as the Board notes, that we strictly 

construe jurisdictional statutes.49 But that does not mean that 

whenever there is a question about the meaning of a term, we 

automatically interpret it so as to foreclose jurisdiction. If that 

were the case, then there would be no “construction” at all. 

Instead, that principle serves to decide cases where, after further investigation, there is no ready answer. In other words, if 

the meaning of an ambiguous jurisdictional statute is unclear, 

even after reviewing the legislative history, the statute’s underlying purpose, and other resources, only then would we give 

it its most narrow interpretation. That is not the case here. We 

conclude that a postage meter stamp is a “postmark” within the 

meaning of § 77-5013(2).

CONCLUSION

Lozier’s mailing met the jurisdictional requirements under 

§ 77-5013(2). We reverse TERC’s dismissal of Lozier’s appeals 

as untimely.

Reversed

Miller-Lerman, J., not participati

47 See, Smith v. Idaho Dept. of Labor, 148 Idaho 72, 218 P.3d 1133 (2009); 

Lin v. Unemployment Comp. Bd. of Review, 558 Pa. 94, 735 A.2d 697 

(1999); Machado v. Florida Unemployment Appeals, 48 So. 3d 1004 (Fla. 

App. 2010); Corona v. Boeing Co., 111 Wash. App. 1, 46 P.3d 253 (2002).

48 See Smith, supra note 47, 148 Idaho at 75, 218 P.3d at 1136.

49 See, e.g., Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 

435, 623 N.W.2d 308 (2001).