Lakeview Village, Inc. v. Board of County Com'rs of Johnson County

Decision Date19 February 1983
Docket NumberNo. 53459,53459
Citation659 P.2d 187,232 Kan. 711
PartiesLAKEVIEW VILLAGE, INC., Formerly Known as Evangelical Village and Bible Conference, Inc., Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, Kansas: Clay L. Wirt, John J. Franke, Jr., and Robert R. Davis, as Commissioners thereof; Edna C. Craig, County Treasurer of Johnson County; and Prather H. Brown, County Assessor of Johnson County, Appellants.
CourtKansas Supreme Court

Syllabus by the Court

1. Under K.S.A. 74-2426 (Weeks) no right of appeal to the district court existed from an order of the Board of Tax Appeals in a tax grievance proceeding filed before the Board pursuant to K.S.A. 79-1702.

2. K.S.A. 1975 Supp. 79-2005 exclusively governed the right to appeal to the district court in tax protest actions before the Board of Tax Appeals.

3. Under K.S.A. 1975 Supp. 79-2005 a taxpayer was not required to exhaust administrative remedies prior to filing a judicial action under 79-2005 to recover taxes paid under protest.

4. The right to appeal from taxing agencies is specifically limited to the statute providing for such appeal and an appellant must clearly bring himself within the provisions of the statute to maintain his right of appeal.

5. The time for taking an administrative appeal, as prescribed by statute, is jurisdictional and delay beyond the statutory time is fatal.

6. Regulations adopted by administrative bodies must be within their statutory authority and may not contravene or nullify a controlling statutory enactment.

7. An administrative rule or regulation which goes beyond that which the legislature has authorized, or which violates the statute, is void.

8. Ordinarily a statute will be construed to operate prospectively unless its language clearly indicates that the legislature intended it to operate retrospectively. This rule is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties.

9. Where a change in the law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure whether they accrued before or after such change in the law and whether or not the suit has been instituted, unless there is a savings clause as to existing legislation.

10. Subsection (f ) of K.S.A. 74-2426 (Ensley) acts to have the review provisions of 74-2426 apply to any appeal or purported appeal in any tax grievance or tax protest proceeding pending before a district court or appellate court of this state at the time the statute became effective on April 16, 1980, although such appeal may have been defective under the statutes in effect at the time it was filed.

11. The time limit provided by statute for bringing an appeal to the district court from orders of the Board of Tax Appeals in actions for the recovery of taxes paid under protest is not merely a statute of limitations, but is a condition precedent to the maintenance of an appeal, and the provisions of K.S.A. 60-518 cannot be asserted to revive the action previously dismissed once the time limit in the statute authorizing appeal to the Board of Tax Appeals has expired.

Bernis G. Terry, Asst. County Counselor, Olathe, argued the cause, and Lyndus A. Henry, County Counselor, Olathe, was with him on briefs, for appellants.

Robert C. Londerholm, of Hackler, Londerholm, Corder, Martin & Hackler, Chartered, Olathe, argued the cause, and Eugene T. Hackler, Olathe, of the same firm, was with him on briefs, for appellee.

SCHROEDER, Chief Justice:

This case is here on a Petition for Review of an unpublished decision of the Court of Appeals filed August 12, 1982. See 8 Kan.App.2d p. vi. The case stems from an appeal filed by Lakeview Village, Inc. (plaintiff-appellee) in the District Court of Johnson County from an order of the Board of Tax Appeals denying the plaintiff's application for recovery of the first half of its 1974 property taxes paid under protest, and denying its tax grievance application to receive an exemption from further taxation.

The complicated sequence of events engendered by various statutes and court decisions leads to but one simple issue. On December 20, 1974, plaintiff filed a tax grievance with the BOTA seeking exempt status for 1974 property taxes and subsequent years, pursuant to K.S.A. 1974 Supp. 79-1702. At the same time plaintiff paid the first half of its 1974 property taxes under protest. In January 1975 the plaintiff elected to file its protest action for refund of its taxes with the BOTA, pursuant to K.S.A. 1974 Supp. 79-2005. The protest and grievance actions were presented on April 30, 1975, at a consolidated hearing before the BOTA. By order certified July 25, 1975, the Board denied plaintiff's request for relief on both counts. Plaintiff then filed a motion for rehearing pursuant to K.A.R. 1970 Supp. 94-1-9, which provided that a rehearing before the Board could be requested within 30 days of an order of the Board. This motion was denied by order certified on September 19, 1975. However on September 24, 1975, plaintiff's attorney was notified by the Board that the application for rehearing on the tax grievance would be heard on October 28, 1975. (Apparently the mailing of the September 19, 1975, order was an administrative error.)

Confused as to whether or not a hearing had been formally revoked or withdrawn, because the order purporting to deny the rehearing had not actually been revoked, the plaintiff filed an action in the district court on October 20, 1975, under K.S.A. 1975 Supp. 79-2005, appealing the order of the BOTA denying the requested relief. The rehearing application was actually considered by the BOTA on October 29, 1975. In an order certified on November 21, 1975, the BOTA reaffirmed its order of September 19, 1975, denying the application for rehearing. There is evidence in the record that the BOTA denied the application for rehearing without considering the merits upon being informed by counsel for Lakeview Village at the hearing on October 29, 1975, that an action had been filed in the district court appealing the BOTA's order. It was the practice of the BOTA at that time to refuse to proceed on an application for rehearing once an action on the same matter was filed in the district court. The order of November 21, 1975, denying the rehearing included the docket numbers of both the tax grievance and tax protest applications.

The plaintiff's action filed in the district court on October 20, 1975, was dismissed on November 15, 1976, for lack of prosecution. On November 24, 1976, plaintiff filed this action, alleging in substance the same matters as in the earlier case, asserting the right to do so pursuant to K.S.A. 60-518.

The district court rendered its opinion in this case on May 27, 1981. From the record it appears the district court postponed its decision awaiting the outcome of a separate tax grievance action pending before the BOTA concerning the plaintiff's tax exempt status for 1975 and subsequent years.

The plaintiff filed a second tax grievance application in 1977 with the Board covering the tax years beginning in 1975. In an order issued July 8, 1980, the BOTA granted plaintiff's request for an exemption "for the years 1975 through 1979 and from January 1, 1980 through December 31, 1980 and so long as they are owned by the applicant and used for the above stated purposes."

The district court ordered the plaintiff's application for relief be remanded to the BOTA and a rehearing granted. The sole issue presented for review is whether the district court had jurisdiction to entertain the appeal from the order of the Board of Tax Appeals denying relief in the tax protest and tax grievance actions.

The appellee's discourse in its brief on the merits of the district court's order is immaterial to this appeal in light of the fact the appellants are only contesting the district court's jurisdiction and have not challenged the merits of the court's decision. The jurisdiction of the district court was the sole issue discussed in the Court of Appeals opinion --- Kan.App. ---, 653 P.2d 831 and the sole issue presented by the appellee in its Petition for Review.

The statutes in effect at the time this action was filed in the district court, K.S.A. 74-2426 (Weeks) (governing appeals to the district court from orders of the Board of Tax Appeals) and K.S.A. 1975 Supp. 79-2005 (setting forth the procedures available for recovery of taxes paid under protest) were amended in 1980 while this action was pending in the district court. (See L.1980, ch. 236, § 1 [74-2426] and L.1980, ch. 315, § 1 [79-2005].) The procedure to recover taxes paid under protest was significantly revised (see K.S.A.1982 Supp. 79-2005) and the jurisdiction of the district court to hear appeals from orders of the BOTA in tax grievance and tax protest actions was greatly enlarged. (See K.S.A. 74-2426 [Ensley].)

Prior case law leaves no doubt that under those statutes in effect when this action was filed the district court did not have jurisdiction to hear an appeal from the order of the BOTA in either the tax grievance or tax protest actions. In In re Lakeview Gardens, Inc., 227 Kan. 161, 166 605 P.2d 576 (1980), this court determined that K.S.A. 1979 Supp. 74-2426, governing appeals from the BOTA, did not authorize appeals to the courts from a tax grievance proceeding filed before the BOTA pursuant to K.S.A. 79-1702. See also City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 704, 360 P.2d 29 (1961); Union Pacific Railroad Co. v. Sloan, 188 Kan. 231, 233, 361 P.2d 889 (1961); Board of Johnson County Comm'rs v. Ameq, Inc., 227 Kan. 93, 94, 605 P.2d 119 (1980). It was further held that K.S.A. 1979 Supp. 60-2101(d ), the omnibus statute authorizing appeals from decisions of administrative agencies, did not authorize appeals from an order of the BOTA and did not enlarge the limited right...

To continue reading

Request your trial
18 cases
  • Ripley v. Tolbert, 74583
    • United States
    • Kansas Supreme Court
    • July 12, 1996
    ... ... Inc., 249 Kan. 307, 319, 820 P.2d 390 (1991), ruled ... protection and due process attacks in Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 ... at 101 [622 P.2d 641]; Lakeview Village, Inc. v. Board of Johnson County Comm'rs, ... ...
  • Sunflower Racing, Inc. v. Board of County Com'rs of Wyandotte County
    • United States
    • Kansas Supreme Court
    • December 9, 1994
    ... ... Serv. Comm'n, 237 Kan. at 100, 697 P.2d 1279; Lakeview Village, Inc. v. Board of Johnson County Comm'rs, 232 Kan. 711, 717, 659 ... ...
  • Harsay v. Univ. of Kan.
    • United States
    • Kansas Supreme Court
    • November 21, 2018
    ...failure to appeal within statutory limit fatal); Lakeview Village, Inc. v. Board of Johnson County Comm'rs , 232 Kan. 711, Syl. ¶ 5, 659 P.2d 187 (1983) (same); Vaughn v. Martell , 226 Kan. 658, 661, 603 P.2d 191 (1979) (same). We thus permit the University to raise and argue its position t......
  • Estate of Speake, Matter of
    • United States
    • Oklahoma Supreme Court
    • July 7, 1987
    ... ... 4 Amsden v. Johnson, 74 Okl. 295, 158 P. 1148, 1149 [1916] ... 5 The ... McPherson County, 122 Kan. 741, 253 P. 586, 592 [1927] and Ferrier ... See Lakeview Village, Inc. v. Bd. of Cty. Com'rs., 232 Kan ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT