No. 86-382
IN THE SUPREME COURT OF THE STATE OF MONTANA
CLAYTON E. DEVOE,
Petitioner and Appellant,
-vs-
MISSOULA COUNTY; FERN HART; THE
MISSOULA COUNTY TREASURER; and THE
DEPARTMENT OF REVENUE OF THE STATE
OF MONTANA,
Respondents and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David Rodli, Missoula, Montana
For Respondent:
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana; Michael Sehestedt, Deputy County Attorney
Larry G. Schuster, Dept. of Revenue, Helena, Montana
Submitted on Briefs: Nov. 25, 1986
Decided: April 14, 1987
Filed: bi3R 1 4 1 8
97
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Clayton Devoe appeals a Missoula County District Court
order granting the defendant Department of Revenue's (DOR)
motion to dismiss Devoe's complaint. The dispositive issue
on appeal is whether the District Court correctly ruled that
appellant must exhaust his administrative remedies prior to
initiating suit in district court. We affirm.
In January 1986, appellant filed a complaint in Missoula
County District Court contesting the 1985 state property tax
appraisal of two parcels of real property. Appellant also
attacked the valuation method as discriminatory and
unconstitutional. At the time he filed that complaint, Devoe
was also the appellant in another property tax appeal pending
before the Missoula County District Court. That appeal
sought judicial review of a State Tax Appeal Board decision
regarding property valuations on the same two properties for
the tax years 1980, 1981, 1982 and 1984. Devoe properly
exhausted his administrative remedies for the tax years 1980,
1981, 1982 and 1984. He concedes that he did not appeal his
1985 property tax appraisal to the appropriate administrative
boards prior to filing the instant complaint in district
court. Appellant argues that because he exhausted his
administrative remedies for 1980, 1981, 1982 and 1984 and
because he attacks the 1985 tax assessment on the same
grounds as he attacks the other assessments, that he has, in
effect, exhausted his administrative remedies for 1985.
In February 1986, the respondent DOR filed a motion to
dismiss arguing that appellant had failed to exhaust his
administrative remedies for the year 1985. In April 1986,
appellant moved to consolidate the instant case with his
action involving the years 1980, 1981, 1982 and 1984. In
June 1986, the Missoula County District Court issued its
order granting the DOR's motion to dismiss the complaint.
The dismissal was based upon appellant's failure to exhaust
his administrative remedies for 1985. This appeal followed.
The standard of review is clear.
In reviewing the propriety of an order granting a
motion to dismiss, we repeat the oft-quoted rule
that ". . . the allegations of the complaint must
be viewed in a light most favorable to plaintiffs,
admitting and accepting as true all facts
well-pleaded. "
U. S. Nat. Bank of Red Lodge v. Mont. Dept. of Rev. (19771,
175 Mont. 205, 207, 573 P.2d 188, 190, quoting Board of
Equalization v. Farmers Union Grain Terminal Assoc. (1962),
140 Mont. 523, 531, 374 P.2d 231, 236.
We first address a preliminary assertion of appellant.
He asserts that he could not properly invoke the
administrative process under S 15-15-102, MCA, to attack the
1985 tax appraisal because he did not receive a notice of
that appraisal. Section 15-15-102, MCA, provides in part:
No reduction may be made in the valuation of
property unless the party affected or his agent
makes and files with the county tax appeal board on
or before the first Monday in June - - days after
or 15
receiving a notice of classification and appraisal
from the department of revenue, whichever is later,
a written application therefor. (~mphasisadded.)
Appellant claims that because he did not receive a 1985
notice of appraisal, he could never reach the S 15-15-102,
MCA, deadline for filing an application. Appellant theorizes
that the DOR did not send him a 1985 notice because
S 15-7-102(1), MCA, allows the DOR to not send a notice of
appraisal if, since the previous year, the land's status has
not changed with respect to certain criteria, including
ownership, classification and valuation.
Appellant's allegations as to a lack of notice are not
properly before this Court. Appellant's complaint makes no
mention of a lack of notice and the record does not show that
the District Court was ever aware of appellant's allegation
on this point. The court made no finding of fact relating to
a lack of notice. Indeed, appellant's reply brief admits
that he did not realize that he had not received a notice
until after he had filed the notice of this appeal. Thus, we
do not consider this allegation nor what effect, if any, the
allegation, if true, would have in this case.
Appellant's complaint (1) alleged that he had paid his
1985 property taxes under protest; (2) requested a refund of
those taxes; and (3) requested that the appraised value of
his real property be set at a specific, lower value. Section
15-1-402, MCA, allows a taxpayer to pay his taxes under
protest and recover the amount protested if his challenge is
successful. That statute allows a taxpayer to file an action
in court to recover taxes paid under protest after the
taxpayer has exhausted - administrative appeals available
the
under Title - chapters - - - 15. The complaint does not
15, 2 and
allege that appellant exhausted his administrative appeals
available under Title 15, chapters 2 and 15. Therefore, the
District Court properly granted respondent's motion to
dismiss. We note that under 5 15-1-406, MCA, appellant could
have filed a declaratory judgment action directly in District
Court to challenge the legality of the tax. Apparently, he
chose not to do so.
Appellant contends that by exhausting his administrative
remedies for the years 1980, 1981, 1982 and 1984 he had
effectively exhausted his administrative appeal for 1985. He
argues that this is so because the basis of his appeal is the
same for all five years. In Eagle Communications v. Treas.
of Flathead Cty. (Mont. 1984), 685 P.2d 912, 41 St.Rep. 1303,
this Court stated that a taxpayer must follow the conditions
contained in the refund statute for every year for which he
seeks a refund. The refund statute involved in
Eagle Communications is the predecessor statute to the refund
statute, § 15-1-402, MCA, involved here. The rule cited in
Eagle Communications, 685 P.2d at 917, still applies:
Where a right of action and the conditions for
bringing the action are contained within the same
statute, compliance with those conditions is a
condition precedent which must be fulfilled to
preserve the right. (Citation omitted.)
Appellant did not comply with the 5 15-1-402, MCA, statutory
conditions for bringing suit and, therefore, the motion to
dismiss was properly granted.
Appellant, citing Larson v. State (1975), 166 Mont. 449,
534 P.2d 854, argues that his complaint comes within an
exception to the exhaustion of remedies rule. Addressing the
exhaustion of administrative remedies in a tax appeal case,
the Larson court quoted Belknap Realty Co. v. Simineo (19231,
67 Mont. 359, 365, 215 P. 659, 662:
"The statutes having made ample provision whereby a
taxpayer may have any alleged excessive or
erroneous assessment or valuation of his property
reviewed by the county and state boards of
equalization, this remedy is exclusive except in
cases where fraud or the adoption of a
fundamentally wrong principle of assessment is
shown. "
Larson, 534 P.2d at 858. Appellant argues that his complaint
alleges a fundamentally wrong principle of assessment so as
to come within the exception. The complaint does allege that
the method of assessment was discriminatory, illegal and
unconstitutional. However, it is clear that the principal
thrust of the complaint is aimed at the amount of valuation
and not the method of valuation. In such a case,
[tlax appeal boards are particularly suited for
settling disputes over the appropriate valuation of
a given piece of property or a particular
improvement, and the judiciary cannot properly
interfere with that function.
Larson, 534 P.2d at 858. Therefore, we hold that the
complaint does not come within the exception to the
exhaustion of remedies general rule.
Affirmed.
\
/
We concur: