Welch v. Washington County

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: VAN HOOMISSEN
• Citation: Welch v. Washington County, 842 P.2d 793, 314 Or. 707 (Or. 1993)
• Decision Date: 26 January 1993
• Parties: John A. WELCH, Appellant, v. WASHINGTON COUNTY and Oregon Department of Revenue, Respondents. OTC 3039; SC S38387.

Page 793

842 P.2d 793

314 Or. 707

John A. WELCH, Appellant, v. WASHINGTON COUNTY and Oregon Department of Revenue, Respondents.

OTC 3039; SC S38387.

Supreme Court of Oregon In Banc.

Argued and Submitted May 8, 1992.

Decided Dec. 4, 1992.

Reconsideration Denied Jan. 26, 1993.

Maurice L. Russell, II, of Churchill, Leonard, Brown, Lincoln, Lodine & Hendrie, Salem, argued the cause and filed the briefs, for appellant.

Ted E. Barbera, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the briefs were Charles S. Crookham, Atty. Gen., and Robert A. Bianchi, Asst. County Counsel, Hillsboro.

VAN HOOMISSEN, Justice.

Plaintiff appeals a summary judgment for defendants Washington County (county) and the Department of Revenue (department) concerning his property taxes for the tax years 1977-87. Plaintiff also appeals an order denying his motion for relief from the judgment in the same case. We affirm the Tax Court's judgment and order.

Plaintiff's "supplemental appeal" presents the preliminary question whether a tax court order denying a motion for relief from judgment is appealable. Tax Court Rule (TCR) 71B(1) provides in part that "[t]he court may relieve a party * * * from a judgment for the following reasons: * * * (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial."

Under ORS 19.010(2)(c), this court may review "[a] final order affecting a substantial right, and made in a proceeding after judgment or decree." In Waybrant v. Bernstein, 294 Or. 650, 654-55, 661 P.2d 931 (1983), this court noted the well-established rule that the denial of a motion to set aside a judgment and grant a new trial is not appealable, but held that certain post-judgment orders are appealable if the judgment was entered as a result of "mistake, inadvertence, surprise, or excusable neglect," or if it is "void." ¹ We now hold that an order denying a motion for relief from judgment based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial" is appealable. By definition, newly discovered evidence could not have been the subject of an earlier appeal. We, therefore, review both plaintiff's appeal of summary judgment and his "supplemental" appeal of the denial of his motion for relief from judgment.

Plaintiff is a landowner and real property taxpayer in Washington County. His tax assessments from 1977 to 1985 showed an increase in value of certain parcels from $187,000 to $657,000. Beginning in 1977, Chris Mejia, an employee of the county assessor's office, told plaintiff that the assessments were correct. Although Mejia advised plaintiff of his right to appeal to the Board of Equalization each time they spoke, plaintiff did not appeal. In 1985, plaintiff retained an appraiser, who valued one of the parcels at $136,000, whereas the county had valued it at $250,000. Mejia later told plaintiff that the appraiser did not know the local market and that the county stood by its valuation. In 1989, plaintiff learned that in 1977 and 1985 the county had conducted physical appraisals, but that in other years the increases had been based on sales ratio studies. When plaintiff asked Mejia about those studies, Mejia said, "I told them they were going to get in trouble."

In June 1990, plaintiff appealed the valuation of his properties for the years 1985-90, asking that the department reduce its assessed value. See ORS 306.115. ² The appeal was dismissed for lack of jurisdiction. ³ The 1988-90 valuations already were resolved by stipulation and are not involved in this appeal. Plaintiff then brought this action in the Tax Court for tax years 1977-87, claiming that (1) defendants had falsely represented that his property had been uniformly assessed and taxed in accordance with law, and (2) defendants knew that such representations were false or acted in reckless disregard of the truth. Plaintiff sought declaratory and injunctive relief, as well as attorney's fees, and equitable relief. Defendants moved for summary judgment, arguing that plaintiff had failed to exhaust his administrative remedies. ⁴ Plaintiff answered that defendants should be estopped from asserting that defense, because his failure to exhaust his administrative remedies was a result of their misrepresentations.

The Tax Court found that plaintiff had failed to exhaust his administrative remedies and that equitable estoppel did not apply, because plaintiff's reliance was not reasonable. The court further found that plaintiff had a responsibility to investigate and challenge the validity of any assessments that he believed were too high. Accordingly, the court granted summary judgment to defendants.

Plaintiff appealed to this court, but then moved in the Tax Court for relief from the summary judgment, citing TCR 71B(1) (newly discovered evidence). The newly discovered evidence on which plaintiff relied was an inter-office memorandum dated November 23, 1988, from Barbara Swanson, the department's assessment analysis manager in Salem, to Bob Fast, the department's regional office manager in Hillsboro, with a copy to the county. The memorandum identified two "problems" with the county's preliminary ratio report from November 1988, but concluded that "neither is a big enough problem to merit mention in our letter to the [county Board of Equalization]." The two problems identified by Swanson were (1) that prior year sales data were used in a class in one area, but not in another, and (2) that one of the appraisal ratio studies did not include an adequate sample. On November 23, 1988, the department notified the county Board of Equalization that the county's preliminary ratio study met statutory requirements. In his motion, plaintiff asserts that he could not have discovered the memorandum in time to move for a new trial, because it was not turned over to him during discovery.

With his TCR 71B motion, plaintiff included an affidavit stating that he had sought discovery from defendants but had received no response, that his discovery efforts were frustrated by the summary judgment, ⁵ and that he had obtained the memorandum later through a public records request. He then made his own calculations and determined that, because of the "problems" mentioned in the memorandum, his assessments for 1988-89 were too high. ⁶ Plaintiff argued that the memorandum supports an inference that the county and the department suppressed information about deficiencies in the county's assessment process in order to discourage taxpayers from contesting the assessments.

The Tax Court concluded that plaintiff's newly discovered evidence did not merit relief from judgment, because, even if it showed intentional misrepresentation, a property owner and a tax assessor are in adverse positions, and Oregon's property tax system requires the owner to make independent decisions as to the accuracy of an assessment. Accordingly, the court denied plaintiff's motion. Plaintiff then appealed that order to this court. He contends that the Tax Court erred in holding as a matter of law that his reliance on the assessor was not reasonable, in granting summary judgment, and in holding that evidence of defendant's intentional misrepresentation of the value of his property was irrelevant to his TCR 71B motion.

The Tax Court is a court of general jurisdiction with full equitable powers and jurisdiction to grant equitable relief in cases arising under this state's tax laws. ORS 305.405; ORS 305.410. This court is the sole reviewing court for judgments and final orders of the Tax Court. ORS 305.445. This court hears tax appeals "anew upon the record," but does not go beyond the record for evidence on methods of appraisal. Oregon Broadcasting Co. v. Dept. of Rev., 287 Or. 267, 273, 598 P.2d 689, opinion clarified, reh'g den 287 Or. 499, 601 P.2d 473 (1979).

Summary judgment may be granted only where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. On review, we view the facts in the light most favorable to the non-moving party. ESCO Corp. v. Dept. of Rev., 307 Or. 639, 641, 772 P.2d 413 (1989). We draw all inferences from the facts in favor of the non-moving party. Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978).

Plaintiff points to a number of facts and inferences that he believes are binding on this court in reviewing the Tax Court's grant of summary judgment. He argues that it is reasonable to infer from his evidence that the county lied to him. We disagree.

Plaintiff's affidavit states in part:

"Each year [defendants] assured me that the assessed value represented an accurate statement of the value of the property. In fact, Chris Mejia, a representative of the Assessor's office, told me that he had reviewed my assessment, and that the County had the evidence needed to prove that the stated value was correct.

" * * * * *

" * * * Mr. Mejia informed me that [my appraiser] was incorrect, was a Portland appraiser who did not know the local market, and that the County stood by its valuation.

" * * * * *

" * * * When I showed him the copies of the ratio studies I had received, [Mejia] said 'I told them they were going to get in trouble.' "

This court's duty to view the facts in the light most favorable to plaintiff and to draw inferences from facts favorable to plaintiff does not mean that we must accept any inference that plaintiff believes his evidence might support, no matter how unreasonable or unlikely. We must only accept any inference that his evidence does support. ⁷

The record here does not contain any data regarding the appraisal methods used by the county, but only plaintiff's bare conclusory assertions that the methods used were improper and that defendants knew that, yet tried to prevent him from appealing. The issue before us is not whether plaintiff's properties were...