Devoe v. Missoula County, 86-382

• Decision Date: 14 April 1987
• Docket Number: No. 86-382,86-382
• Parties: Clayton E. DEVOE, Petitioner and Appellant, v. MISSOULA COUNTY; Fern Hart; the Missoula County Treasurer; and the Department of Revenue of the State of Montana, Respondents and Respondents.
• Court: Montana Supreme Court

Page 1115

735 P.2d 1115

226 Mont. 372

Clayton E. DEVOE, Petitioner and Appellant, v. MISSOULA COUNTY; Fern Hart; the Missoula County Treasurer; and the Department of Revenue of the State of

Montana, Respondents and Respondents.

No. 86-382.

Supreme Court of Montana.

Submitted on Briefs Nov. 25, 1986.

Decided April 14, 1987.

David Rodli, Missoula, for petitioner and appellant.

Robert L. Deschamps, III, Co. Atty., Missoula, Michael Sehestedt, Deputy Co. Atty., Larry G. Schuster, Dept. of Revenue, Helena, for respondents and respondents.

GULBRANDSON, Justice.

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. (1977), 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 Sec. 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 or 15 days after receiving a notice of classification and appraisal from the department of revenue, whichever is later, a written application therefor. (Emphasis added.)

Appellant claims that because he did not receive a 1985 notice of appraisal, he could never reach the Sec. 15-15-102, MCA, deadline for filing an application. Appellant theorizes that the DOR did not send him a 1985 notice because Sec. 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 the administrative appeals available under Title 15, chapters 2 and 15. The complaint does not allege that appellant exhausted his administrative appeals available under Title 15, chapters 2 and 15. Therefore, the District Court proper...