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Ex parte Kennemer

Supreme Court of Alabama

October 26, 2018

Ex parte Allen Kennemer and Nina G. Kennemer
v.
Shelby County Board of Equalization In re: Allen Kennemer and Nina G. Kennemer

          (Shelby Circuit Court, CV-16-900537; Court of Civil Appeals, 2160538)

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

          MENDHEIM, JUSTICE.

         Allen Kennemer and Nina G. Kennemer petitioned this Court for a writ of certiorari to review whether the Court of Civil Appeals' affirmance, without an opinion, of a judgment of the Shelby Circuit Court dismissing the Kennemers' appeal from a ruling of the Shelby County Board of Equalization ("the Board") conflicts with Shoals Mill Development, Ltd. v. Shelby County Board of Equalization, 238 So.3d 1253 (Ala. Civ. App. 2017). We issued the writ, and we reverse and remand.

         I. Facts and Procedural History

         The underlying case concerns a dispute between the Kennemers and the Board as to the assessed value of real property owned by the Kennemers ("the property"). The Board informed the Kennemers, by notice dated May 31, 2016, that it had ruled that the fixed value of the property was $122, 700 for purposes of assessment. According to the Kennemers, however, the "true and fair value" of the property was $89, 405.50. The Kennemers filed an appeal from the Board's ruling.

         Section 40-3-25, Ala. Code 1975, states:

"All appeals from the rulings of the board of equalization fixing value of property shall be taken within 30 days after the final decision of said board fixing the assessed valuation as provided in this chapter. The taxpayer shall file notice of said appeal with the secretary of the board of equalization and with the clerk of the circuit court and shall file bond to be filed with and approved by the clerk of the circuit court, conditioned to pay all costs, and the taxpayer or the state shall have the right to demand a trial by jury by filing a written demand therefor within 10 days after the appeal is taken."

         On June 30, 2016, the Kennemers filed a notice of appeal in the circuit court. It is undisputed that the filing of the notice of appeal with the circuit court was timely. Also on June 30, 2016, the Kennemers mailed a notice of appeal to the Board via certified mail. The notice was received by the Board on July 5, 2016.

         On September 29, 2016, the Board filed a motion in the circuit court seeking to dismiss the appeal as untimely filed. According to the Board, the Kennemers' notice of appeal was untimely because the Board did not receive the notice within 30 days of its May 31, 2016, ruling. The Board relied on the Court of Civil Appeals' decision in Target Corp. v. Jefferson County Board of Equalization, 197 So.3d 1006 (Ala. Civ. App. 2015), as support for its argument.

         The Kennemers filed a response to the motion to dismiss, arguing (1) that their appeal was timely filed because it was sent to the Board by certified mail postmarked on or before the 30th day as provided by § 40-3-25 and (2) that § 40-3-25 is ambiguous and should be construed in favor of the Kennemers, i.e., the taxpayers, because, they say, "where a tax statute is reasonably subject to two constructions, the interpretation most favorable to the taxpayer must be adopted by the Court. Scott & Scott v. City of Mountain Brook, 844 So.2d 577, 590 (Ala. 2006), citing Williams v. Pugh, 24 Ala.App. 57, 129 So. 792 (1930)." The Kennemers acknowledged that the Court of Civil Appeals held in Target Corp. that Target did not satisfy the requirements of § 40-3-25 where it mailed its notice of appeal on the day the notice was due, but the notice was not received by the board within 30 days of the board's ruling. But, the Kennemers asserted, the Court of Civil Appeals in Target Corp. did not address the question they were presenting here:

"In the final paragraph of [Target Corp.], the Court stated that Target '... made no argument that the language [in] [§] 40-3-25 can be construed as allowing a copy of a notice of appeal to be mailed or postmarked on or before the time prescribed by the statute, thereby constituting a timely filing of the notice of appeal.' Target Corp., [197 So.3d at 1008]. Unlike the Appellant in that case, [the Kennemers] intend[] to explore this issue."

         Further, the Kennemers contended that § 40-3-25 should be read "in conjunction with ... [§] 41-22-20(d), [Ala. Code 1975, a part of the Alabama Administrative Procedure Act], "[1] as to whether mailing a notice to the Board, which is an adverse party for purposes of the appeal, satisfied the requirements of § 40-3-25.

         On October 29, 2016, the Board filed a supplemental brief in support of its motion to dismiss, arguing (1) that tax appeals require strict compliance with the applicable statutory provisions for filing an appeal and (2) that mailing a notice of appeal does not constitute a "filing" for purposes of § 40-3-25. The Board specifically referenced the "mailbox rule" in its supplemental brief and contended that that rule should not be applied to § 40-3-25.

         The Kennemers filed a response to the Board's supplemental brief. In their response, the Kennemers noted, in part, that "at least one Alabama statute provides that an appeal to administrative agencies may be filed pursuant to the 'mailbox rule, ...


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