Visteon Corp. v. Yazel

• Decision Date: 07 May 2004
• Docket Number: No. 100,351.,100,351.
• Citation: 2004 OK CIV APP 52,91 P.3d 690
• Parties: The Matter of the Assessment of Certain Personal Property Owned by Visteon Corporation for Tax Year 2002, VISTEON CORPORATION, Appellant, v. Ken YAZEL, In his Official Capacity as County Assessor of Tulsa County, Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

91 P.3d 690

2004 OK CIV APP 52

The Matter of the Assessment of Certain Personal Property Owned by Visteon Corporation for Tax Year 2002, VISTEON CORPORATION, Appellant, v. Ken YAZEL, In his Official Capacity as County Assessor of Tulsa County, Oklahoma, Appellee.

No. 100,351.

Court of Civil Appeals of Oklahoma, Division No. 3.

May 7, 2004.

William K. Elias, Linda Jo Blan-Byford, Elias, Books & Brown, Tulsa, OK, for Petitioner/Appellant.

Thomas G. Potts, David W. Wulfers, Cornelius P. Dukelow, James, Potts & Wulfers, and Linda K. Graves, Office of the District Attorney, Tulsa, OK, for Respondent/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Opinion by CAROL M. HANSEN, Judge:

¶ 1 Visteon Corporation (Visteon) appeals from the trial court's order dismissing its appeal of the Tulsa County Equalization Board's (Board) order which established the fair cash value of Visteon's business personal property for the tax year 2002.¹ Appellee, the Tulsa County Assessor (Assessor) had moved for dismissal, arguing the trial court lacked subject matter jurisdiction because [a] Visteon failed to give statutory notice to the Tulsa County Treasurer that it had appealed Board's denial of its formal protest, and [b] Visteon had failed to pay its 2002 business personal property ad valorem taxes under protest.

¶ 2 On June 11, 2002, Visteon filed its Petition in the trial court pursuant to 68 O.S.2001 § 2880.1² (hereafter § 2880.1) seeking a trial de novo "to correct the assessment made by the County Assessor and the [Equalization] Board." Visteon alleged the County Assessor "failed to utilize proper methodology in determining the fair market value" of its personal business property was $81,214,566, making the valuation arbitrary and excessive.

¶ 3 Visteon paid the first half of its 2002 county property taxes on December 16, 2002, and the second half on March 20, 2003. Each check was for the total amount of $705,373.50, which included $530,290.50 for the business personal property portion. The parties agree the taxes were fully and timely paid. At issue, however, is whether there were any accompanying documents with the checks when they were received by the County Treasurer. As explained below, the documents would be relevant to determining if Visteon preserved its right to the district court appeal.

¶ 4 After filing his Answer, Assessor moved to dismiss Visteon's 2002 assessment appeal from the consolidated actions. Assessor asserted the trial court lacked subject matter jurisdiction over that appeal because Visteon had not given proper notice in accordance with 68 O.S.2001 § 2884(B) (hereafter § 2884(B)) when the 2002 taxes were paid. Section 2884(B) provides, in pertinent part, that when protested taxes are paid:

. . . the person protesting the taxes shall give notice to the county treasurer that an appeal involving such taxes has been taken and is pending, and shall set forth the total amount of tax that has been paid under protest.... The notice shall be on a form prescribed by the Tax Commission.... The taxpayer shall attach to such notice a copy of the petition filed in the court or other appellate body in which the appeal was taken.

¶ 5 In his motion to dismiss, Assessor asserted the requisite § 2884(B) notice form and copy of petition were not included when Visteon mailed its payments to the Tulsa County Treasurer. In support of his motion to dismiss, Assessor attached certain documents and affidavits of various county employees who were regularly involved in the operation of the County Treasurer's office and in receipt of mail in the court house and Treasurer's office. Assessor argued the evidentiary materials showed Visteon had not complied with § 2884(B).

¶ 6 Visteon, in response, contended it had met the requirements of § 2884(B) by enclosing the required notice and pleading, but additionally argued that once the district court properly had subject matter jurisdiction, it could not lose it. Visteon further argued § 2884(B) does not require abatement of a pending appeal for failure to comply with its notice requirements. Visteon attached copies of the notice form in controversy, which it asserts was properly sent with the initial 2002 tax payment, and other documents and affidavits purporting to establish compliance with § 2884(B).

¶ 7 The initial inquiry must be whether compliance with § 2884(B) is a jurisdictional prerequisite to the district court's hearing the appeal. In Means v. Blevins, 1995 OK 76, 898 P.2d 1286, the Supreme Court held notice pursuant to § 2884(B) is a statutory condition for a trial court's jurisdiction to decide an appeal from a County Assessor's valuation decision. In Means, the taxpayer objected to the evaluation of property, but failed to give notice to the County Treasurer that appeal had been taken from that evaluation. The Supreme Court issued a writ of prohibition from proceeding further in the district court case "for lack of jurisdiction for failure to comply with 68 O.S.1991 § 2884(B)." In doing so, the Court cited Dolese Bros. Co. v. Board of Com'rs of Comanche County, 1931 OK 480, 151 Okla. 110, 2 P.2d 955.

¶ 8 In Dolese, the district court had dismissed the taxpayer's appeal from the County Board of Equalization's determination because no transcript of the Board's hearing was filed with the appeal, and because the taxpayer failed to serve notice to the County Treasurer that the appeal was pending. Both the transcript and notice were statutorily required.

¶ 9 In language identical to that in § 2884(B), Section 9970, C.O.S.1921, provided that persons paying protested taxes shall give notice "that an appeal involving such taxes has been taken and is pending." The Dolese Court noted it was the taxpayer's duty to serve notice on the county treasurer "in order that taxes so paid might by him be held separate and apart from other taxes collected by him." The Court concluded:

We think these provisions are mandatory, and must be complied with in order to confer jurisdiction upon the district court to entertain the appeal.

Dolese, 2 P.2d at 956; See also, Antrim Lumber Co. v. Sneed, 1935 OK 1144, 175 Okla. 47, 52 P.2d 1040.

¶ 10 The rationale expressed in Dolese for making notice to the treasurer mandatory and jurisdictional is as persuasive today as it was then. In fact, the treasurer's duty, as contained in § 2884(C), "to hold taxes paid under protest separate and apart from other taxes collected" is substantively unchanged from the original enactment in 1915. See, Laws 1915, c. 107, art.1, subd. B, § 6. Section 2884(E) provides for refund of property taxes paid under protest if the court finds the property was assessed at too great an amount. If proper notice of appeal is not given, the County Treasurer is obligated to apportion the taxes received and would be left without proper reserves to make refunds. Such a situation would be antithetical to good business practices and good government.

¶ 11 Therefore, and in view of Assessor's motion to dismiss for lack of subject matter jurisdiction, we hold that proof of Visteon's compliance with § 2884(B) is required for continuing jurisdiction in the trial court to determine if the assessed value was proper. "When a jurisdictional question arises, the burden of proof is upon the party asserting that jurisdiction exists." Union Bank v. Ferris, 1978 OK 149, 587 P.2d 454. The party asserting that jurisdiction exists here is Visteon.

¶ 12 The parties are in conflict not only as to what the evidentiary materials establish, but also as to what procedure the trial court should have applied in considering those materials. Visteon contends the trial court's consideration of the evidentiary materials submitted in support of, and in opposition to, the motion to dismiss, converts the motion into one for summary judgment. Visteon, citing In re Macfarline, 2000 OK 87, 14 P.3d 551, then argues that because the motion is one for summary judgment, [a] the evidence must be considered in the light most favorable to it, the non-moving party, and [b] the motion may be granted only where there is no substantial controversy as to any material fact.

¶ 13 There clearly is substantial controversy as to material facts, i.e. whether the documents required by § 2884(B) were submitted with Visteon's December payment of the 2002 tax. However, we are more persuaded by Assessor's argument that under the facts here the trial court could properly consider the evidentiary materials to determine its jurisdiction without using the summary judgment procedure.

¶ 14 We are not aware of any Oklahoma appellate decisions directly on this point, but in construing provisions of our pleading code, we may consider the federal counterpart from which it was derived. Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910. The pivotal provision from our pleading code here is 12 O.S.Supp.2002 § 2012(B). With certain additions not relevant to the question before us, § 2012(B) is "virtually the same as Federal Rule of Civil Procedure 12(b)." See, Committee Comment to Section 2012.

¶ 15 Section 2012(B) provides, among other things, that:

If, on a motion asserting the defense numbered 6 [§ 2012(B)(6) ] of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by the rules for summary judgment.

¶ 16 Assessor argues the foregoing provision does not apply here because his motion to dismiss is not for failure to state a claim upon which relief can be granted, but for lack of jurisdiction over the subject matter under § 2012(B)(1). In Holt v. U.S., 46 F.3d 1000 (10th Cir.1995), the Circuit Court of Appeals noted that under Rule 12(b)(1), the federal...