No. 87-189 

IN THE SUPREME COURT OF TRE STATE OF MONTANA 

1987 

EDWARD BOEHM , 

Plaintiff and Appellant, 

-vsALLEN NELSON, WENDELL LOVELY, 

GEORGE OMMUNDSEN, JOE KELSEY, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward Boehm, pro se, Livingston, Montana 

For Respondent: 

Utick & Grosfield; Dee Ann G. Cooney, Helena, Montana 

Mike Garrity, Legal counsel, Dept. of Revenue, Helena, 

Montana 

Submitted on Briefs: Oct. 29, 1987 

Decided: ~ecember 22, 1987 

Filed: /j[:sc, &. 1g87 --. .- 

6, 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This case is an appeal of a motion to dismiss granted 

by the Sixth Judicial District Court, Park County. The 

District Court dismissed pro se plaintiff/appellant Edward 

Boehm's (Boehm) complaint on grounds he failed to exhaust his 

administrative remedies prior to filing a claim in District 

Court against the Park County Tax Appeal Board and that the 

complaint failed to state a claim upon which reli-ef could be 

granted. Boehn~ appeals the dismissal of his claim. 

We affirm. 

The issue we are faced with is whether the District 

Court erred when it granted defendants' motion to dismiss 

Boehm' s claim. 

On February 3, 1987, Boehm filed an unnamed document 

accompanied by twelve exhibits seeking punitive and compensatory damages. We will refer to this document as the complaint in this action. The complaint alleged in part that 

Boehm protested his tax appraisals and he was never given a 

hearing prior to the tax appeal board denying his claim. He 

named the tax appeal board members, Allen Nelson (Nelson), 

Wendell 1,ovely (Lovely) and George Ommundsen (Ornnlundsen) and 

the county assessor, Joe Kelsey (Kelsey), claiming they had 

". . . individually and jointly acted outside and contrary to 

their respective offices and legal duties prescribed by law 

and in bad faith . . ." 

Defendants Nelson, Lovely and Ommundsen filed motions 

to dismiss on grounds the District Court lacked subject 

matter jurisdiction and Kelsey filed an answer asserting as 

an affirmative defense that the claim failed to state a claim 

upon which relief could be granted. On March 11, 1987, the 

District Court granted the defendants' motions. 
The rules for motions to dismiss are found in Rule 12, 

M.R.Civ.P. Specifically, in this case, defendants based 

their motions on Rule 12 (b) (1) lack of jurisdiction over the 

subject matter and Rule 12(b) (6) failure to state a claim 

upon which relief can be granted. The motion to dismiss is 

always to be construed in a light most favorable to the 

non-moving party and should not be granted " [ulnless it 

appears beyond doubt that the plaintiff can prove no set of 

facts in support of his claim which would entitle him to 

relief." Willson v. Taylor (Mont. 1981), 634 ~.2d 1180, 

1182, 38 St.Rep. 1606, 1608; Fraunhofer v. Price (19811, 182 

Mont. 7, 12, 594 P.2d 324, 327. See also, Busch v. Kamrnerer 

(1982), 200 Mont. 130, 649 P.2d 1339. 

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." 

Devoe v. Missoula County (Mont. 1987), 735 P.2d 1115, 1116, 

44 St.Rep. 731, 732. 

On June 9, 1986, the tax appeal board received an 

appeal signed by Boehm. The document, in regards to his tax 

appraisal, stated: "[tlhis is an absolute outrageous, ridiculous increase of '1445%'. The property is in the floodway 

and no one will buy it even at the old appraisal." Boehm's 

complaint alleges that he met with the county assessor, 

Kelsey, and was told that the figures were not erroneous. 

Upon further inquiry, Boehm was instructed that he needed to 

appear before the county tax appeal board. Boehm was informed by telephone that a hearing would be scheduled towards 

the end of September. When informed of the date, Boehm 

stated he could not attend due to an accident. After this, a 
number of telephone messages were missed between Eoehm and 

the county. 

On October 31, 1986, Nelson called Boehm and informed. 

him that a tape recording was made explaining the calculations used in appraising his property. Boehm alleged in his 

complaint that he listened to the tape and that it was "superfluous." The tape, included as part of the District Court 

record, explains how the appraiser, Kelsey, arrived at the 

valuations on Boehm's properties. At the conclusion of the 

tape, Kelsey requested that if Boehm had problems with the 

appraisal that he should set up a time to meet with him. The 

tape concluded: "[tlhis will be his [Boehm's! responsibility 

to do this, and we will review it at that time." The making 

of this tape in itself demonstrates the board's willingness 

to deal fairly with Boehm. 

Boehm alleged that he wrote a letter to Kelsey on 

November 12, 1986, demanding an answer to his complaint in 

writing. Kelsey responded and advised Boehm that his taxes 

were assessed according to a statewide manual. Kelsey further informed Boehm that he could set up an appointment and 

Kelsey would explain the appraisal to him. On December 5, 

1986, Roehm again wrote to Kelsey and attached a copy of a 

letter from John D. LaFaver, Director of the Department of 

Revenue, that Boehm alleged said "[Kelsey] over-appraised 

three of my properties." LaFaver's letter stated: 

You recently received your 1986 property 

assessment. It reflected the 1986 

reappraisal values. 

The June Special Session of the Montana 

Legislature asked us to be sure you 

understand your opportunity to appeal 

the new appraisal. The rights are 

particularly important to you because 

our records show that your property 
values increased more than the 

state-wide average. 

The attached fact sheet explains the 

increase in taxable value for your 

property. 

If you disagree with the appraisal, the 

Legislature has extended the appeal 

deadline to 15 days after you receive 

this notice. 

Our appraisal office in your county will 

be happy to explain how your values were 

determined. Please give them a call and 

set up a time to discuss your questions 

or concerns. 

This letter does not show that the State agreed that 

the taxes were improperly assessed. It merely informs Boehm 

that the local board was available for further explanation of 

the tax assessment. Boehm alleged that he received a letter 

on January 7, 1987, with attached copies of denials of his 

appeals signed by Allen Nelson. Only one of these documents 

is attached in the record. Nelson's denial, property tax 

appeal form IA signed December 23, 1986, states that Boehm1s 

application for red.uction in appraised value was disapproved. 

Nelson stated, " [a1 fter many discussions and sending you the 

tape of the appraisal, and not getting the necessary response, we as a board has [sic! denied your appeal." In 

regard to this denial, Boehm wrote another letter on January 

10, 1987, requesting Nelson to explain who gave Nelson ". . . the authority that he assumed to deny any American citizen, 

and a tax paying resident of Park, Montana the right to 

appeal." Boehm again requested a statement in writing only. 

Boehm alleged he was then contacted by a woman on behalf of 

Nelson and Boehm told her he needed a response in writing 

only. Roehm received a number of contacts from Dixie Dill at 

the county tax appeal board that he was to receive another 
hearing. On January 27, 1987, Dill sent Boehm a letter which 

stated: 

Your hearing with the Park County Tax 

Appeal Board has been set for Friday, 

February 6, 1987, at 11:OO a.m. in the 

Conm~unity Room of the City-County 

Building. 

Either you or a representative must be 

present at this hearing. This hearing 

will not be rescheduled. 

Boehm alleged that he received a call from Lovely on 

February 1, 1987, at 10:45 a.m. He alleged that Lovely told 

him that the Friday meeting needed to be rescheduled. Boehm 

replied that the board I' [w] ould be hearing from me. " Boehm 

never appeared for the hearing. Instead, Boehm filed a 

complaint in District Court. 

The above is a cursory outline of the allegations made 

by Boehm in his complaint. For these actions, Boehm claimed 

the county tax appeal board members and the county assessor 

abused their duties and acted in bad faith for which he 

requested $500 actual and $100,000 punitive damages. No 

appeal to the State Tax Appeal Board (STAB) was ever filed by 

Boehm. 

Keeping in mind the standards we have enunciated in 

regard to a motion to dismiss, we hold that the District 

Court properly denied Boehm's complaint in this case. 

Article VIII, Section 7 of the 1972 Montana Constitution mandates: 

The legislature shall provide independent appeal procedures for taxpayer 

grievances about appraisals, assessments, equalization, and taxes. The 

legislature shall include a review 

procedure at the local government unit 

level. 
Section 15-7-102 (5) , MCA, gives STAR the power to hear 

tax appraisal appeals. Department of Revenue v. State Tax 

Appeal Board (1980), 188 Mont. 244, 247, 613 P.2d 691, 693. 

In Butte Country Club v. State (1979), 186 Mont. 424, 

431-432, 608 P.2d 111, 116, we stated that it is clear that 

the legislature provided that the county tax appeal board 

furnishes the exclusive review procedure for any appraisal 

appeal. 

The statutory scheme enacted by the 

legislature allowing taxpayers to appeal 

assessments clearly shows a legislative 

intent that an appeal and review before 

the Local Board be a condition precedent 

to STAB review. This Court has determined that as a condition precedent to 

the reduction of the valuation of property, the taxpayer must appeal at the 

local level. See Barret v. Shannon 

(1897), 19 Mont. 397, 399-400, 48 P. 

746. Further, this Court has determined 

that except in cases where fraud -- or the 

adoption - of afundan~entall~ - wrong principle of assessment is shown, an appeal 

-- to thc~mrd-is - - the exclusive 

remedy granted the taxpayer. Keller v. 

Department of Revenue (19791, 182 Mont. 

478, 597 P.2d 736; Larson v. State 

(1975), 166 Mont. 449, 534 P.2d 854. 

Boehm has not alleged fraud which must be ". . . stated 

with particularity . . ." in the complaint. Rule 9 (b), 

M.R.Civ.P.; Kinjerski v. Lamey (1979), 185 Mont. 111, 

116-117, 604 P.2d 782, 785, appeal after remand 635 P.2d 566; 

Tschache v. Barclay (1977), 172 Mont. 415, 420, 564 P.2d 

1299, 1302. Although Boehm claims "bad faith" on the part of 

the local tax appeal board and county assessor and their 

acting outside their duties, no facts alleged, even when read 

in a light most favorable to Boehm, support this claim. We 

support the District Court's statement expressed in its 

explanatory comment attached to the order granting the motion 
to dismiss that Boehm " [allleges no facts to demonstrate [bad 

faith or acts outside the law], and his own exhibits defeat 

such claim." 

Boehm, just as any other citizen contesting local tax 

appeal board actions, must exhaust all administrative remedies provided. Title 15, Chapters 2, 7 and 15, MCA. The 

complaint filed by Boehm presents no challenge to the legality of the tax pursuant to 5 15-1-406, MCA. Devoe, supra, 735 

P.2d at 1117. Boehm's complaint merely sets forth a broad 

and ambiguous claim of bad faith and abuse of legal authority 

with no supporting facts. Section 15-3-402, MCA, sets forth 

the requisite actions Boehm could have taken, Boehm did. not 

comply with these procedures. 

We affirm. 

We concur: ,,.y 

&E*F~ Justices ,/)