980 N.W.2d 49
N.D.2022Background
- In 2019 Cass County Commission denied Sholy’s tax abatement/refund applications after a rehearing on June 17, 2019 (5-0 vote).
- Statute §28-34-01 requires a notice of appeal to be filed with the district court and served on the local governing body within 30 days of the local body’s decision.
- Sholy filed a notice of appeal in district court on July 19, 2019 (two days after the 30-day deadline) and served the Commission and State Tax Commissioner the same day.
- The district court sent Sholy a letter requesting a certificate of record; on December 9, 2019 the court dismissed the appeal without prejudice for failing to file that certificate. No notice of entry of that order appears in the record.
- Sholy later acknowledged receiving the December 9, 2019 order on November 25, 2021 and filed a timely appeal to the Supreme Court on January 21, 2022.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Sholy’s appeal to the Supreme Court timely? | Sholy: actual knowledge of the district court’s order was Nov 25, 2021, so his Jan 21, 2022 notice of appeal was within Rule 4 time. | County: did not dispute Supreme Court timeliness. | Court: appeal to Supreme Court was timely. |
| Did the district court err by dismissing for failure to file a certificate of record? | Sholy: court misapplied law by ordering appellant to file certificate of record. | County: focused on timeliness jurisdictional defect. | Court: district court’s stated reason was incorrect, but error was harmless because dismissal was nonetheless proper for lack of jurisdiction. |
| Was Sholy’s appeal to the district court timely under the statute governing local governing body appeals (§28‑34‑01) vs administrative appeals (§28‑32‑42)? | Sholy: relied on §28‑32‑42 (administrative appeals) and argued his July 19 filing was timely. | County: appeal is governed by §28‑34‑01 (local governing body) and required filing within 30 days of June 17 decision (by July 17). | Court: appeal to district court was untimely under §28‑34‑01 (filed July 19), so the district court lacked jurisdiction and dismissal was appropriate. |
Key Cases Cited
- Domres v. Domres, 587 N.W.2d 146 (1998 ND 217) (when notice of entry not served, appeal period may commence on actual knowledge if clearly evidenced in the record)
- Garaas v. Cass Cty. Joint Water Res. Dist., 883 N.W.2d 436 (2016 ND 148) (§28‑34‑01 requires filing and service of notice of appeal within 30 days)
- Zajac v. Traill Cty. Water Res. Dist., 881 N.W.2d 666 (2016 ND 134) (time for appeal under §28‑34‑01 is measured from the local governing body’s decision and is not tolled by lack of notice)
- IRET Props. LP v. Williams Cty. Bd. of Comm’rs, 918 N.W.2d 56 (2018 ND 223) (dismissal where filing and service occurred after §28‑34‑01 deadline)
- S&B Dickinson Apartments I, LLC v. Stark Cty. Bd. of Comm’rs, 914 N.W.2d 503 (2018 ND 158) (taxpayer must file and serve notice of appeal within 30 days from board’s decision)
- Grand Forks Homes, Inc. v. State, 795 N.W.2d 335 (2011 ND 65) (timely filing is mandatory to invoke district court appellate jurisdiction)
- Myers v. State, 891 N.W.2d 724 (2017 ND 66) (affirming judgment despite incorrect reasoning when result is the same under correct law)