No. 87-189

IN THE SUPREME COURT OF TRE STATE OF MONTANA
1987

EDWARD BOEHM

## ,Plaintiffand Appellant,-vsALLEN NELSON, WENDELL LOVELY, GEORGE OMMUNDSEN, JOE KELSEY,
Defendants and Respondents.

APPEAL FROM: DistrictCourtof the SixthJudicialDistrict, Inand forthe Countyof Park, TheHonorable ByronRobb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edward Boehm, pro se, Livingston, Montana
For Respondent:
Utick & Grosfield; DeeAnnG. Cooney, Helena, Montana MikeGarrity, Legalcounsel, Dept. of Revenue, Helena, Montana

Submittedon Briefs: Oct. 29, 1987
Decided: ~ecember 22, 1987
Filed: /j[:sc,

&. 

### 1g87

--. .- 

# 6, ClerkMr. 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)complainton grounds he failed to exhausthis 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-efcould be granted. Boehn~ appeals thedismissalofhis 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 denyinghis 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 inbad 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 Courtgranted the defendants'motions.The rules for motions to dismiss are found in Rule 12, M.R.Civ.P. Specifically, in this case, defendants based theirmotions 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),200Mont. 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 isan 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,Boehmwas instructed thathe needed to appear before the county tax appeal board. Boehm was informedby telephone that ahearingwould be scheduled towards the end of September. When informed of the date, Boehm stated he could not attend due to an accident. After this, anumber 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 aspart 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 thathe should setup a time tomeet with him. The tape concluded: "[tlhiswillbe his [Boehm's! responsibility to do this,and we will review it at that time." Themaking of this tape in itself demonstrates the board's willingness to deal fairlywith 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 ofmy properties." LaFaver's letter stated: You recently receivedyour 1986 property assessment. It reflected the 1986 reappraisalvalues.
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 propertyvalues 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 thisnotice.
Our appraisal office inyour countywill be happy to explainhow yourvalueswere determined. Please give them a calland set up a time to discussyour questions or concerns. This letter does not show that the State agreed that the taxeswere improperly assessed. Itmerely informs Boehm that the localboard 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.uctionin appraisedvaluewas disapproved. Nelson stated,

### "[a1fter many discussions and sendingyou 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 explainwho 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 fromDixieDill at the county tax appeal board that he was to receive anotherhearing. On January 27, 1987,Dill sentBoehm a letterwhich 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 notbe 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 fromme.

### " 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 StateTaxAppeal Board (STAB)was ever filedby Boehm.Keeping in mind the standards we have enunciated in regard to a motion to dismiss, we hold that the District Courtproperly denied Boehm's complaint in this case. Article VIII, Section 7 of the 1972 Montana Constitutionmandates: 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 legislatureallowing taxpayers to appeal assessments clearly shows a legislative intent that an appeal and review before the Local Board be a conditionprecedent 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 prin

### -- ciple 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 fraudwhichmust 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 thepart of the local tax appeal board and county assessor and their acting outside their duties,no factsalleged,evenwhen 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 ordergranting the motionto dismiss that Boehm 

### "[alllegesno 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 filedby Boehmpresents 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 ofbad faithand 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 complywith these procedures. We affirm.

We concur: ,,.y



# &E*F~ Justices ,/)