                                                    No.     87-189

                        IN T H E SUPREME COURT O F T R E S T A T E O F MONTANA
                                                          1987




EDWARD BOEHM ,

                          P l a i n t i f f and A p p e l l a n t ,
          -vs-
ALLEN N E L S O N , WENDELL LOVELY,
GEORGE OMMUNDSEN, J O E K E L S E Y ,

                          D e f e n d a n t s and R e s p o n d e n t s .




A P P E A L FROM:         D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
                          I n and f o r t h e C o u n t y of P a r k ,
                          T h e H o n o r a b l e B y r o n R o b b , Judge p r e s i d i n g .

COUNSEL O F RECORD:

          For A p p e l l a n t :

                          E d w a r d B o e h m , pro se, L i v i n g s t o n , M o n t a n a

          For R e s p o n d e n t :

                          U t i c k & G r o s f i e l d ; D e e A n n G. C o o n e y , H e l e n a , M o n t a n a
                          M i k e G a r r i t y , L e g a l c o u n s e l , D e p t . of R e v e n u e , H e l e n a ,
                          Montana




                                                          S u b m i t t e d on B r i e f s :         Oct.   29,   1987

                                                             Decided:               ~ e c e m b e r2 2 ,   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 compensa-
tory damages.    We will refer to this document as the com-
plaint 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 ~ . 2 d 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, ridic-
ulous 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 in-
formed 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 calcula-
tions used in appraising his property. Boehm alleged in his
complaint that he listened to the tape and that it was "su-
perfluous." 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 fur-
ther 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, " [a1fter many discussions and sending you the
tape of the appraisal, and not getting the necessary re-
sponse, 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 Constitu-
tion mandates:
            The legislature shall provide indepen-
            dent appeal procedures for taxpayer
            grievances about appraisals, assess-
            ments, 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 deter-
           mined that as a condition precedent to
           the reduction of the valuation of prop-
           erty, 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 - afundan~entall~
                    of -                 wrong prin-
           ciple of assessment is shown, an appeal
           to t
           - -h c ~ m r d - i s- - exclusive
                                      the
           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 reme-
dies provided.    Title 15, Chapters 2, 7 and 15, MCA.     The
complaint filed by Boehm presents no challenge to the legali-
ty 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             ,)
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