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State ex rel. Summit Natural Gas of Missouri, Inc. v. Morgan County Commission

Court of Appeals of Missouri, Southern District, First Division

June 13, 2017

State of Missouri ex rel. SUMMIT NATURAL GAS OF MISSOURI, INC., Relator/Plaintiff-Appellant,
THE MORGAN COUNTY COMMISSION; JAMES BRYANT, RODNEY SCHAD, and WAYNE KROESCHEN, in their official capacities as MORGAN COUNTY COMMISSIONERS; JIM ANDERSON, in his official capacity as MORGAN COUNTY ASSESSOR; and KATHY FRANCIS, in her official capacity as MORGAN COUNTY COLLECTOR, Respondents/Defendants-Respondents.



          DON E. BURRELL, J.

         Summit Natural Gas of Missouri, Inc. ("Summit") appeals the judgment dismissing with prejudice its eight-count petition ("the petition") against the Morgan County Commission and its individual members ("the Commission"), the Morgan County Assessor ("the Assessor"), and the Morgan County Collector ("the Collector") (collectively, "Defendants").

         The petition sought judicial relief pursuant to section 536.150 and alleged, inter alia, that: Summit's property was erroneously assessed for the 2015 tax year; Summit did not receive notice of the erroneous assessment until after the time period to appeal to the Morgan County Board of Equalization ("Board of Equalization") had expired; and Summit had requested relief from the Commission pursuant to section 137.270, which the Commission ultimately denied.[1]

         Summit presents seven points on appeal that contend the trial court erred in granting Defendants' motion to dismiss the petition ("the dismissal motion"). Two of those points, contending that "Summit did not fail to exhaust administrative remedies" (Point 3) and "Summit's payment under protest did not deprive the Commission of the authority to act under section 137.270" (Point 4), are dispositive. We reverse the judgment ("the dismissal judgment"), do not reach Defendants' remaining points, and remand the case for further proceedings consistent with this opinion.[2]

         Applicable Principles of Review

         Our review of the decision to grant a motion to dismiss a petition is de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo. banc 2007). A motion to dismiss must assume that all averments in the petition are true. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). We do likewise, making no attempt to weigh those averments for credibility or persuasiveness. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo. App. W.D. 2003). "It is not the function of the trial court on a motion to dismiss or of this court on appeal from a judgment of dismissal … to determine on the merits whether Appellant is entitled to relief." Moore v. Mo. Highway & Transp. Comm'n, 169 S.W.3d 595, 599 (Mo. App. S.D. 2005) (quotation omitted). "Where the trial court does not state a basis for its dismissal, we presume that dismissal was based on the grounds stated in the motion to dismiss and will affirm if dismissal was appropriate on any ground stated in the motion to dismiss." State v. Carroll Care Ctrs. Inc., 11 S.W.3d 844, 849 (Mo. App. W.D. 2000). We "will not . . . affirm the grant of a motion to dismiss on grounds not stated in the motion." Breeden v. Hueser, 273 S.W.3d 1, 6 (Mo. App. W.D. 2008).

         The Petition Averments

         The following are the salient averments of the petition. Summit is a natural gas distribution company that owns property located within eight Morgan County taxing districts: Ambulance District 1, Ambulance District 2, Fire District 5, Fire District 6, R-I School District, R-II School District, Nursing District 1, and Nursing District 2 ("the Taxing Districts"). In February 2015, Summit filed its 2015 property tax return ("the tax return") with the Assessor. The tax return included a form detailing Summit's real and personal property located within each of Morgan County's eight taxing districts. Each form included a "Total Value" figure and an "Assessed Value" figure for the property listed on the form.

         In May 2015, the Assessor sent Summit a "'notice of change of assessed value of real property.'" Tonya Heller, Summit's assistant controller, reviewed the notice and believed that the value listed for Summit's property was too low. Ms. Heller believed that "the Assessor would calculate Summit's property tax correctly if the notice of change of value reflected the sum of the 'total value' figures at the bottom of each page of Summit's tax return pertaining to real property."

         Ms. Heller contacted the Morgan County Deputy Assessor ("the Deputy Assessor") and filed a "'Protective Notice of Appeal'" with the Board of Equalization. Following her discussion with the Deputy Assessor, Ms. Heller received a second notice of change of assessed value of real property ("the second notice") that was consistent with what she believed was necessary for the Assessor to correctly calculate Summit's property tax. She then withdrew Summit's appeal to the Board of Equalization.

         In November 2015, Summit received its 2015 tax bill ("the tax bill"). The tax bill listed $22, 799, 550 as the total assessed value of Summit's property ("the total assessment") and $1, 011, 362.55 as the amount of taxes due based on the total assessment. The Assessor calculated the total assessment by adding together the sixteen Assessed Values (two for each of eight Morgan County taxing districts) used by Summit in its tax return. However, because "each page of the return corresponded to a different taxing district, some of which overlapped, this [method] resulted in multiple assessments of the same property." Applying the correct calculation would reveal that the "correct" amount of taxes due would have been $254, 309, approximately one-fourth of the amount billed. The Collector also incorrectly calculated Summit's taxes "based on a random assignment of assessed value to Summit's property among different taxing districts."

         After receiving the tax bill, Summit contacted the Deputy Assessor. The Deputy Assessor advised Summit that the tax bill could not be corrected because Summit's opportunity to appear before the Board of Equalization, which met July 2015, had already passed.

         On December 30, 2015, Summit sent to the Collector: (1) a check for $1, 011, 362.55; (2) a letter stating that payment was being made "under protest" and that the protested funds should be impounded pursuant to section 139.031 ("the protest letter"); and (3) copies of a letter and affidavit that Summit contemporaneously sent to the Commission requesting relief ("the letter to the Commission"). Both the protest letter and the letter to the Commission stated that Summit believed the correct "true value in money" of its property was $16, 909, 720 (for its real property) and $1, 184, 477 (for its personal property), giving rise to property assessments of $5, 411, 110 and $394, 826, respectively. Accompanying the letter to the Commission was an affidavit in which Laurie Rydwell, Summit's corporate controller, stated that Summit had good cause for not attending the Board of Equalization meeting in July 2015 due to Summit's understanding that the Assessor would calculate Summit's taxes correctly following the second notice.

         On February 23, 2016, the Commission held a hearing on Summit's request for relief. Ms. Rydwell testified, the parties presented exhibits (including Summit's exhibit showing its estimated correct tax calculation of $254, 309), and counsel for the parties presented argument. The argument of Morgan County's counsel prevailed, and the Commission denied any relief.

         On March 22, 2016, Summit filed the petition in the Circuit Court of Morgan County.[3] The petition avers that the proceeding before the Commission "was not a contested case" because the Commission "was not required by law to hold a hearing" and that judicial review is appropriate under section 536.150. In eight counts, the petition prays for writ of mandamus or declaratory and injunctive relief based on alleged violations of: section 137.270 (counts 1 through 4); sections 52.230 and 52.240 (counts 5 and 6); and due process of law (counts 7 and 8). As relief, the petition sought a refund of the impounded funds attributable to the erroneous multiple assessments.

         Defendants responded with the dismissal motion, which presented the following three grounds: (1) Summit's counts 1 through 4 are barred because Summit paid the tax bill in full; (2) Summit's counts 5 through 8 are barred because Summit failed to exhaust all administrative remedies; and, in the alternative, (3) Summit failed to join the Taxing Districts, which are necessary and indispensable parties to the lawsuit.

         The trial court issued the dismissal judgment, which did not state the basis of the trial court's decision, and this appeal timely followed. Because points 3 and 4 are ...

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