Wirt v. Esrey

• Decision Date: 29 April 1983
• Docket Number: No. 54520,54520
• Citation: 662 P.2d 1238,233 Kan. 300
• Parties: Clay L. WIRT, John J. Franke, Jr., and Robert C. Bacon, as the Board of County Commissioners of the County of Johnson and as the County Board of Equalization of the County of Johnson; Donald J. Curry, as the County Clerk of said County; Edna C. Craig, as the County Treasurer of said County; and Prather H. Brown, Jr., as the County Appraiser of said County, Appellants, v. Robert C. ESREY, as Receiver, and Capitol Federal Savings and Loan Association, Appellees.
• Court: Kansas Supreme Court

Page 1238

662 P.2d 1238

233 Kan. 300

Clay L. WIRT, John J. Franke, Jr., and Robert C. Bacon, as the Board of County Commissioners of the County of Johnson and as the County Board of Equalization of the County of Johnson; Donald J. Curry, as the County Clerk of said County; Edna C. Craig, as the County Treasurer of said County; and Prather H. Brown, Jr., as the County Appraiser of said County, Appellants, v. Robert C. ESREY, as Receiver, and Capitol Federal Savings and Loan Association, Appellees.

No. 54520.

Supreme Court of Kansas.

April 29, 1983.

Syllabus by the Court

1. Where a court has jurisdiction of the parties to an action and of the subject matter thereof and renders a judgment within its competency, such judgment is final and conclusive, unless corrected or modified on appeal. Such a judgment is conclusive as to any other action or proceeding involving the same cause of action, subject only to the right to have the same vacated or set aside in a proper proceeding.

2. K.S.A. 60-260(b)(6) is to be liberally construed to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts.

3. The powers, duties, and supervisory responsibilities of the state board of tax appeals are coextensive with the state's entire scheme of taxation.

4. Under K.S.A. 79-1702, the state board of tax appeals had jurisdiction to order a refund of taxes in an equalization appeal brought pursuant to K.S.A. 79-1609 even though the claim for refund was not formally presented to the county board of equalization.

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

John Anderson, Jr., of Anderson, Granger, Nagels & Lastelic, Chartered, Overland Park, argued the cause and was on brief for appellees.

PRAGER, Justice:

This is an action arising from a dispute over the assessment of an apartment complex located in Johnson County for ad valorem tax purposes. As the opinion will demonstrate, most of the issues presented in the trial court and on appeal involve questions of jurisdiction, procedure, and the scope of appellate review of decisions of the taxing authorities rather than error in the assessment of the property.

In determining the case, the Honorable Lewis C. Smith filed a well-reasoned, comprehensive memorandum decision which sets forth at length the decisive facts, outlines the issues, and states the considerations for the court's decision and judgment. We include here those portions of the memorandum decision involving issues which have been raised on the appeal.

MEMORANDUM DECISION

Statement of Facts:

1. The real estate involved herein consists of land and improvements comprising an apartment complex located at 87th Street and Mastin in Overland Park, Kansas, and commonly known as The Clines Apartments.

2. Appellee, Capitol Federal Savings & Loan Association (Capitol Federal) was mortgagee of the Clines property and ultimately through foreclosure became owner.

3. On April 9, 1976, Robert C. Esrey, theretofore appointed by the District Court of Johnson County, Kansas, in Case No. 49,941, as receiver and agent for the land and improvements described as The Clines Apartments, together with Capitol Federal, filed an equalization appeal in Docket No. 76-1 to the County Board of Equalization (County Board) of Johnson County, Kansas, from the assessment of said property for the year 1976.

4. On April 21, 1976, the equalization appeal was heard by said County Board. As a result of taxpayer's appeal, a change of assessment was made upon finding that an error had been made in computing the 5. On June 4, 1976, Capitol Federal and Robert C. Esrey, as receiver, filed an appeal to the State Board of Tax Appeals (BOTA) sitting as the State Board of Equalization, alleging the valuation on the subject properties should have been reduced by an additional amount.

square footage of the improvement. As a result thereof, the County Board made and entered its decision in said equalization appeal on May 12, 1976, reducing the valuation of the land from $251,600 to $223,200, and the valuation of the improvements from $2,096,800 to $1,821,000 or a total reduction of $2,348,400 to $2,044,400 (i.e. reduction of 13%).

6. On August 11, 1976, evidence was presented before BOTA by all the parties involved herein and the Board, having concluded the hearing, took the appeal under advisement, granting the parties leave to submit suggested findings of fact and requested conclusions of law.

7. On or about January 5, 1976, Capitol Federal served by mail its amended petition and cross-petition adding a tax protest count relating to ad valorem taxes for the years 1970, 1971, 1972, 1973, 1974, and the first half of 1975 in its then pending action for foreclosure involving The Clines Apartments (Case No. 49,941). Capitol Federal's amended petition asserted a claim in the District Court of Johnson County, Kansas, for refund of taxes paid under protest for the first half of 1975 and for the said prior years. The amended petition and cross-petition were brought pursuant to K.S.A. 79-2005.

8. On August 17, 1976, the District Court of Johnson County, Kansas, concluded that said tax protest failed and, sustaining the motion of the county, dismissed the amended petition for failure to state a claim upon which relief could be granted.

9. On September 14, 1976, the taxpayer, Capitol Federal, filed a memorandum in the equalization appeal pending before BOTA. The taxpayer, for the first time in the equalization proceeding, sought a refund of taxes paid under protest. The request for the refund was brought pursuant to K.S.A. 74-2439 and K.S.A. 79-1701 et seq.

10. On or about February 3, 1977, BOTA made and entered its order, copies of which were mailed to the parties on February 8, 1977, which order described the issues as follows:

"5. That the issues of this appeal are:

"(1) Is the taxpayer entitled to further reduction in the fair market value of the property here in question greater than the reduction granted to it by the County Board of Equalization after there being conducted a reappraisal of the property?

"(2) Is the taxpayer eligible for a refund of taxes pursuant to K.S.A. 1975 Supp. 79-1701 et seq. due to clerical error for the year 1975?"

11. With regard to the first issue, as articulated by BOTA, it was determined:

"13. That no substantial, competent evidence which support further reduction in the fair market value was presented to this Board which would permit it to alter the decision of the Johnson County Board of Equalization."

Accordingly, BOTA denied the taxpayer's appeal from the determination of the County Board.

12. With regard to the second issue, as articulated by BOTA, it was determined:

"14. That this Board does have the power and authority to correct clerical errors as hereinbefore outlined in Paragraph 8. Further, that the record shows substantial differentiation between figures used to establish the 1976 value, the reappraisal having been made and those figures used to establish the 1975 fair market value. That, therefore, the taxpayer is entitled to relief on this claim of error that the County has had, and has taken, the opportunity to make its views known as to this Board's authority on this issue. Therefore, the Motion for Refund is sustained."

13. With regard to the second issue, BOTA further determined:

"15. That the 1976 appraisal valuation presently placed against the land and improvements is correct as determined by 14. On March 1, 1977, the receiver served a copy of a notice of appeal to the district court of Johnson County and filed the original with BOTA. On the same day he served and filed an application for rehearing contending that the BOTA should have ordered a refund of taxes paid for the years 1971 through 1974; and asking BOTA to grant a rehearing on the question of uniform and equal assessment as it relates to the subject properties.

the County Board of Equalization of Johnson County, Kansas, and was made in conformity with the applicable provisions of the Kansas Statutes Annotated. And, that the tax levied upon this property for the year 1975 was erroneously calculated not having taken into consideration the true and correct square footage of the improvements located upon the property here in question and, as such, the taxes levied for 1975 ought to be computed based upon these corrected figures as was the 1976 valuation. Any refund due and owing to the taxpayer should then be made or credited to succeeding tax liabilities."

15. On March 8, 1977, Johnson County filed a motion for a rehearing concerning Paragraphs 14 and 15 of said order and the order of refund for the tax year 1975.

16. On March 10, 1977, Johnson County served and filed a notice of appeal from that part of the order of BOTA whereby BOTA ordered Johnson County to refund or credit 1975 real estate taxes, said appeal being docketed as Case No. 68,767 in the District Court of Johnson County, Kansas.

17. On March 17, 1977, BOTA made and entered an order granting a limited rehearing pertaining to the ability of BOTA to refund and the amount due and owing.

18. On April 6, 1977, Robert C. Esrey, as receiver, and Capitol Federal filed a notice of appeal in the District Court of Johnson County from that part of the order of BOTA dated February 3, 1977, and the order of BOTA denying rehearing on said matter dated March 17, 1977, wherein BOTA denied taxpayer's relief in the application for relief from the assessment of The Clines Apartments. This appeal was docketed as Case No. 69,248.

19. On May 24, 1977, a hearing was held, pursuant to the order for limited rehearing before BOTA. On August 3, 1977, BOTA made and entered an order wherein BOTA, affirming its determination in the prior order dated February 3, 1977, further determined:

"1. That the 1976 appraised...