Opinion
TC-MD 110334C.
November 23, 2011.
DECISION OF DISMISSAL
This matter is before the court on Defendant's Motion to Dismiss (Motion), filed with the court July 1, 2011, asserting that Moonbeam Properties LLC (Plaintiff) "is not the owner [of the property] or person aggrieved by and affected by the Real Property Order of the Board of Property Tax Appeals submitted [with the Complaint]." (Def's Mot at 1.)
The court addressed Defendant's Motion with the parties at a telephone case management hearing held November 1, 2011. Plaintiff was represented by John Taylor (Taylor), Oregon licensed real estate broker, who came onto the case as Plaintiff's representative May 9, 2011. Defendant was represented by Ken Collmer (Collmer) and Scott Carver, both of whom are appraisers with the assessor's office. Plaintiff's representative, Taylor, declined the court's offer to submit a written response to Defendant's Motion, asking instead that the court make a ruling following the information presented during the November 1, 2011, proceeding.
The salient facts are as follows. On April 11, 2011, two Complaints were filed with this court by Robert G. Johnson (Johnson), an Oregon licensed real estate broker. One Complaint (the one at issue herein) named Moonbeam Properties LLC as the plaintiff. That appeal was assigned case number TC-MD 110334C. The other Complaint named Moonlight Properties LLC (Moonlight) as the plaintiff. That appeal was assigned case number TC-MD 110335C.
Both Complaints identified the same tax year (2010-11), and indicated that the property type being appealed was "Other: Apartments." (Ptf's Compl at 1; Ptf's Compl, TC-MD 110335C, at 1.) Although there is a place in Section 1 of the court's Complaint form for the appealing party to list the account numbers of the property being appealed, neither Complaint form included an account number in Section 1 or elsewhere. ( Id.)
However, attached to both Complaint forms was an Order of the Multnomah County Board of Property Tax Appeals (Board) concerning property identified as "Account No. R313934." (Ptf's Compl at 2; Ptf's Compl, TC-MD 110335C, at 2.) Thus, Johnson, the person who filed those Complaints, attached the same Board order to both Complaints, although, as it turns out, Johnson intended to appeal two separate properties: the property identified in the Board order submitted with both appeals and known as Account R313934, which is owned by Moonlight (case number TC-MD 110335C), and another apartment building owned by Plaintiff and identified as Account R313946. Both of those properties were apparently appealed to the Board, and orders issued by the Board on or about March 16, 2011. The Complaints were timely filed from the date of issuance of the Board orders. However, the Complaint in the instant appeal is defective.
Plaintiff does not own the property identified in the Board order attached to the Complaint at issue. That property is owned by Moonlight and is moving forward under TC-MD 110335C. The court's Notice of Filing, issued June 2, 2011, indicated that an appeal had been filed by Plaintiff, that the tax year at issue is 2010-11, and that the account number being appealed was R313934.
Defendant has asked the court to dismiss the instant appeal because Plaintiff is not the owner of the property identified by the Board order attached to the Complaint. Plaintiff's current representative, Thomas, responded at the November 1, 2011, proceeding that he thought he cleared up the matter with a letter he sent to the court filed September 16, 2011, approximately one and one-half months after Defendant filed its Motion. That letter states: "We seem to have given you the wrong account number in the above case. The notice of filing shows account number R313934 whereas the correct account number is R313946." Thomas insists he sent a copy of that letter to Defendant's representative, Collmer, via e-mail September 14, 2011, at 4:18 p.m. Collmer responded that he had no record of receiving such an e-mail.
Regardless of whether Defendant received a copy of Plaintiff's September 2011 letter, that document is insufficient to cure the defect in the Complaint. Tax Court Rule-Magistrate Division (TCR-MD) 1 B requires that a copy of the order or notice being appealed be attached to the Complaint. In this case the requisite Board order was not attached to the Complaint. Rather, an order for another property owned by another taxpayer was attached to the Complaint.
It is too late to amend the Complaint because Tax Court Rule (TCR) 23 A precludes amendment unless the party seeking to amend either has the written consent of the adverse party or is granted leave to amend by the court. Defendant has not given Plaintiff written consent to amend and Collmer advised the court, during the November 1, 2011, proceeding, that Defendant is unwilling to give consent at this time. Additionally, the court is not inclined to grant Plaintiff leave to amend because Defendant was not aware of which property Plaintiff was actually appealing until August 24, 2011, when Taylor, in response to a August 23, 2011, call by Collmer to Plaintiff's initial representative, Johnson, called Collmer and advised him that it was Plaintiff's intention to appeal property identified by Account R313946. Under these circumstances, allowing Plaintiff to file an Amended Complaint creates timeliness and notice problems under the "relation back" provisions of TCR 23 C.
For the reasons stated above, the court is granting Defendant's Motion to Dismiss. Now, therefore,
IT IS THE DECISION OF THIS COURT that this matter be dismissed.
Dated this ___ day of November 2011.
If you want to appeal this Decision, file a Complaint in the Regular Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR. Your Complaint must be submitted within 60 days after the date of the Decision or this Decision becomes final and cannot be changed. This document was signed by Magistrate Dan Robinson on November 23, 2011. The Court filed and entered this document on November 23, 2011.