Sholy v. Cass Cty. Comm'n , 2022 ND 164 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 1, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 164David Sholy, Petitioner and Appellant
v.
Cass County Commission, Respondent and Appellee
No. 20220033
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices Crothers and McEvers joined. Justice VandeWalle filed a dissenting
opinion.
David Sholy, self-represented, Fargo, ND, petitioner and appellant; submitted
on brief.
Birch P. Burdick, State’s Attorney, Fargo, ND, for respondent and appellee;
submitted on brief.
Sholy v. Cass Cty. Comm’n
No. 20220033
Tufte, Justice.
[¶1] David Sholy appealed from a district court order dismissing his appeal
from the Cass County Commission’s (“Commission”) decision to deny his
applications for abatement or refund of taxes. Sholy argues the court
misapplied the law in ordering him to file a certificate of record. The
Commission argues Sholy failed to timely file his notice of appeal with the
court. We conclude that the district court’s reasoning for dismissing Sholy’s
appeal was incorrect but that dismissal was nonetheless appropriate because
the court lacked jurisdiction over Sholy’s untimely appeal. We affirm the order
dismissing Sholy’s appeal.
I
[¶2] In 2018, Sholy received notice for increased property taxes for his two
commercial properties and one residential property. In early 2019, Sholy filed
tax abatement applications with the Commission.
[¶3] On May 20, 2019, Sholy appeared in front of the Commission where the
Commission voted 3-2 against his applications. After Sholy objected to the
shortened six-day notice for the hearing, citing the ten-day requirement in
N.D.C.C. § 57-23-05, the Commission set the matter for rehearing. At its
meeting on June 17, the Commission voted 5-0 against the applications.
[¶4] On July 19, Sholy filed a notice of appeal with the district court. On
October 21, the district court sent a letter to Sholy directing him to provide the
court with a certificate of record and information showing the grounds for his
appeal within 10 days. On December 9, the court entered an order dismissing
the appeal without prejudice for failing to file a certificate of record noting the
grounds for the appeal. No notice of entry of judgment was filed.
[¶5] On November 19, 2021, Sholy filed a letter requesting a status of the case
and indicated that he had not received any updates on the case. On December
15, 2021, Sholy filed another letter acknowledging he received a letter from the
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district court which included a copy of the December 9 order and a copy of the
court’s October 21 letter. In the letter, Sholy acknowledged receiving the court’s
letter containing the order on November 25, 2021. On January 21, 2022, Sholy
filed a notice of appeal from the district court’s December 9, 2019 order.
II
[¶6] In light of the unusual delay in reaching this Court, we first consider
whether Sholy’s appeal from the district court’s order of dismissal is timely. “In
a civil case, except as provided in paragraph (a)(4), the notice of appeal
required by Rule 3 must be filed with the clerk of the supreme court within 60
days from service of notice of entry of the judgment or order being appealed.”
N.D.R.App.P. 4(a)(1). Here, there is no evidence of service of notice of entry of
the order in the record. The first indication in the record that Sholy had actual
knowledge of the December 9, 2019, order is his notice of appeal to this Court
acknowledging receipt of the December 9, 2019, order on November 25, 2021.
When notice of entry of an order has not been served on a party, the time to
appeal may commence at the point actual knowledge by the appealing party of
the entry of the order is “clearly evidenced in the record.” Domres v. Domres,
1998 ND 217, ¶ 9, 587 N.W.2d 146. We conclude the time to appeal commenced
November 25, 2021, and thus Sholy’s January 21, 2022 appeal was timely.
III
[¶7] The dispositive issue on this appeal is whether Sholy’s appeal to the
district court was timely under the statute giving the district court appellate
jurisdiction to consider the appeal. The district court did not consider whether
Sholy’s appeal was timely. Sholy argues his appeal to the district court was
timely under N.D.C.C. § 28-32-42(1). Sholy asserts his appeal filed on July 19,
2019, was timely because he received notice of the decision on June 19, 2019,
within “thirty days after notice of the order has been given,” which is the time
limit for filing an appeal under that statute.
[¶8] Sholy’s argument is misplaced because this appeal is not governed by
N.D.C.C. § 28-32-42, but instead by N.D.C.C. § 28-34-01. Proceedings to abate
or refund taxes are governed by N.D.C.C. ch. 57-23. Section 57-23-04(3),
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N.D.C.C., provides “[a]ny person aggrieved by any decision of the board of
county commissioners may appeal in the manner provided by law.” Section 28-
34-01, N.D.C.C., governs appeals from a local governing body, including “any
officer, board, commission, resource or conservation district, or other political
subdivision.” “The notice of appeal must be filed with the clerk of the court
within thirty days after the decision of the local governing body. A copy of the
notice of appeal must be served on the local governing body in the manner
provided by rule 4 of the North Dakota Rules of Civil Procedure.” N.D.C.C.
§ 28-34-01(1) (emphasis added).
[¶9] “Timely filing of an appeal from a decision of a [local governing body] is
mandatory to invoke a district court’s appellate subject matter jurisdiction over
the appeal.” Grand Forks Homes, Inc. v. State, 2011 ND 65, ¶ 20, 795 N.W.2d
335. “Subject matter jurisdiction cannot be waived and can be raised sua sponte
at any time in a proceeding.” S&B Dickinson Apartments I, LLC v. Stark Cty.
Bd. of Comm’rs, 2018 ND 158, ¶ 5, 914 N.W.2d 503. “When jurisdictional facts
are not disputed, the issue of subject matter jurisdiction is a question of law,
which we review de novo.” IRET Props. LP v. Williams Cty. Bd. of Comm’rs,
2018 ND 223, ¶ 3, 918 N.W.2d 56.
[¶10] “If the board of county commissioners disapproves any application for
abatement or refund or compromise, in whole or in part, the reasons for
disapproval must be stated thereon, and the applicant may appeal the rejection
of the application for abatement or refund or compromise as provided by law.”
N.D.C.C. § 57-23-08. If the board of county commissioners rejects the
application, in whole or in part, “a written explanation of the rationale for the
decision, signed by the chairman of the board, must be attached to the
application, and a copy thereof must be mailed by the county auditor to the
applicant at the post-office address specified in the application.” N.D.C.C. § 57-
23-06(2).
[¶11] Sholy relies on the statute governing appeals from an administrative
agency, N.D.C.C. § 28-32-42(1), which provides that an appeal from an
administrative agency must be made within thirty days after notice of the
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order has been given. An appeal from a local governing body is governed by
N.D.C.C. § 28-34-01, which provides in relevant part:
For the purposes of this section, “local governing body” includes
any officer, board, commission, resource or conservation district, or
other political subdivision. Each appeal is governed by the
following procedure:
1. The notice of appeal must be filed with the clerk of the court
within thirty days after the decision of the local governing
body. A copy of the notice of appeal must be served on the local
governing body in the manner provided by rule 4 of the North
Dakota Rules of Civil Procedure.
“If the decision from which an appeal is taken relates to tax refunds, tax
abatements, or other matters relating to taxation, in addition to the notice of
appeal required by section 28-34-01, a notice of appeal also must be served by
registered mail upon the state tax commissioner.” N.D.C.C. § 11-11-41. This
Court has recognized N.D.C.C. § 28-34-01 contains two requirements: the
appellant must file the notice of appeal with the district court within 30 days
of the local governing body’s decision and serve the notice of appeal on the local
governing body within 30 days of the decision being appealed. Garaas v. Cass
Cty. Joint Water Res. Dist., 2016 ND 148, ¶¶ 6, 24, 883 N.W.2d 436.
[¶12] In Zajac v. Traill Cty. Water Res. Dist., 2016 ND 134, ¶¶ 9-10, 881
N.W.2d 666, this Court rejected the appellant’s argument that the time for
appeal was tolled until he received notice of the local governing body’s decision.
This Court recognized that N.D.C.C. § 28-34-01 is not a statute of limitation,
but a statute conferring appellate jurisdiction upon a reviewing court and the
terms of the statute control whether the time for appeal may be tolled. Id. at
¶ 10. “The plain language of N.D.C.C. § 28-34-01 governs any appeal provided
by statute from the decision of a local governing body and states the ‘notice of
appeal must be filed . . . within thirty days after the decision of the local
governing body.’” Id. at ¶ 7 (quoting N.D.C.C. § 28-34-01). In IRET Properties
LP, 2018 ND 223, ¶¶ 4-5, we dismissed the taxpayers’ appeal because they
completed filing and service of their notices of appeal on the local governing
body after the time limitation imposed by N.D.C.C. § 28-34-01. See also S&B
Dickinson Apartments I, LLC, 2018 ND 158, ¶¶ 21-22 (concluding taxpayer
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must file notice of appeal with the district court and serve the notice on the
board of county commissioners and the State Tax Commissioner within 30 days
from the board’s decision).
[¶13] According to Sholy’s brief, the rehearing on his applications was held on
June 17, 2019, and the Commission voted against his applications. The
“decision” of the Commission that started the 30-day time to appeal under
N.D.C.C. § 28-34-01 was its vote at the June 17, 2019 meeting. Sholy had until
July 17, 2019, to file his notice of appeal to the district court. Here, Sholy filed
his notice of appeal on July 19, 2019. Sholy served his notice of appeal on the
Cass County Commission and the State Tax Commissioner on July 19, 2019.
[¶14] Because Sholy’s appeal from the Commission’s decision was untimely, we
conclude the district court did not have jurisdiction to hear his appeal and we
need not address his claim that the court erred in dismissing the appeal for
failure to file a certificate of record. “We will not set aside a district court’s
decision simply because the court applied an incorrect reason, if the result is
the same under the correct law and reasoning.” Myers v. State, 2017 ND 66,
¶ 10, 891 N.W.2d 724. The parties’ motions to supplement the record are
denied.
IV
[¶15] We affirm the district court order.
[¶16] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
VandeWalle, Justice, dissenting.
[¶17] I respectfully dissent. While the result may be the same, I do not agree
with the process the majority used to get there.
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[¶18] Sholy appealed from a district court order dismissing his appeal from the
Cass County Commission’s decision to deny his applications for abatement or
refund of taxes. Sholy argues the court erred in dismissing his appeal for failing
to file a certificate of record. Although Sholy’s notice of appeal to the district
court fails to state the statutory grounds for his appeal, it is apparent from the
filing that Sholy appealed from a denial of his applications for abatement or
refund of taxes.
[¶19] Proceedings to abate or refund taxes are governed by N.D.C.C. ch. 57-23.
Section 57-23-04(3), N.D.C.C., provides “[a]ny person aggrieved by any decision
of the board of county commissioners may appeal in the manner provided by
law.” Section 28-34-01, N.D.C.C., governs appeals from a local governing body.
A local governing body includes “any officer, board, commission, resource or
conservation district, or other political subdivision.” Id. Section 28-34-01(2),
N.D.C.C., states:
The appellee shall prepare and file a single copy of the record on
appeal with the court. Within thirty days, or such longer time as
the court by order may direct, after the notice of appeal has been
filed in the court, and after the deposit by the appellant of the
estimated cost of a transcript of the evidence, the local governing
body shall prepare and file in the office of the clerk of the court in
which the appeal is pending the original or a certified copy of the
entire proceedings before the local governing body, or such abstract
of the record as may be agreed upon and stipulated by the parties,
including the pleadings, notices, transcripts of all testimony taken,
exhibits, reports or memoranda, exceptions or objections, briefs,
findings of fact, proposed findings of fact submitted to the local
governing body, and the decision of the local governing body in the
proceedings. If the notice of appeal specifies that no exception or
objection is made to the local governing body’s findings of fact, and
that the appeal is concerned only with the local governing body’s
conclusions based on the facts found by it, the evidence submitted
at the hearing before the local governing body must be omitted
from the record filed in the court. The court may permit
amendments or additions to the record to complete the record.
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[¶20] The district court ordered Sholy to file a certificate of record when the
plain language of the statute requires the appellee here, the County, to file a
copy of the record.
[¶21] If rules of procedure mean anything, I believe the proper remedy would
be to reverse the district court’s order dismissing the appeal and remand for
further proceedings to the district court. At that time, the County should file a
record on appeal and it may move to dismiss the appeal for failure to file within
the requirements of the statute. If Sholy has any opposition or defense, he then
could file.
[¶22] While this procedure may seem unnecessary, I believe it sets a bad
precedent for the Court to decide the district court did not have jurisdiction
when no official record has been filed and the issue was not raised before the
district court. I understand the Court resolving an issue as a legal matter, here
it is a factual matter. The majority has had to search through the parties’ briefs
and other documents to determine whether Sholy’s appeal to the district court
was timely. Although the parties may not dispute what occurred in this case,
in future cases the record may contain items that could change the result and
there may be disputes about the facts. Further, there is no explanation in the
County’s brief why it failed to file a motion to dismiss in the district court and
instead waited to raise it on appeal. Therefore, I believe the appropriate
remedy would be to reverse the district court’s order dismissing Sholy’s appeal
and remand for the County to file a copy of the record and for further
proceedings based on the record.
[¶23] Gerald W. VandeWalle
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