Solem v. DOR

• Court: Montana Supreme Court
• Decided: November 7, 2024
• Docket: DA 23-0030
• Status: Unpublished

Opinion

ORIGINAL

D 11/07/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0030

DA 23-0030 FLED WILLIAM M. SOLEM and ELLEN G. SOLEM, NOV 0 7 2024 Bowen Greenwood Plaintiffs, Appellees, Clerk of Supreme Court State of Montana and Cross Appellants,

v. ORDER STATE OF MONTANA, DEPARTMENT OF REVENUE,

Defendant, Appellant, and Cross Appellee.

On September 24, 2024, this Court issued an opinion in the above-entitled action, reversing and remanding the District Court's October 15, 2019 Findings of Fact, Conclusions of Law and Order. Solem v.'Dep't ofRevenue, 2024 MT 217, 418 Mont. 217. Appellees William and Ellen Solem ("Solems") petitioned for rehearing pursuant to M. R. App. P. 20. The Department of Revenue opposes the petition. M. R. App. P. 20(1)(a) provides that a petition for rehearing will be considered only on the following grounds: (1) that the Court overlooked some fact material to the decision; (2) that the Court overlooked some question presented by counsel that would have proven decisive to the case; or (3) that the Court's decision conflicts with a statute or controlling decision not addressed by the Court. The Solems assert two grounds for rehearing: (1) that our Opinion conflicts with Peretti v. Dep't of Revenue, 2016 MT 105, 383 Mont. 340, 372 P.3d 447; and (2) that we overlooked material facts pertaining to the testimony of their expert witnesses critiquing DOR's appraisal methodology. Having fully considered the Solems' petition, we see no basis for granting rehearing under M. R. App. P. 20(1)(a). The Solem's first asserted ground for rehearing fails because we addressed Peretti in our Opinion. Mont. R. App. P. 20(1)(a)(iii) provides a basis for rehearing only if the Opinion conflicts with a statute or controlling decision not addressed by the supreme court." (Emphasis added.) Peretti was addressed at length in the Opinion, including the Solems' argument that it was distinguishable from this case. See Solem, Tlf 20-21. The Solems' second argument is unavailing because we did not overlook the testimony of their experts. We acknowledged that the Solem's experts all disagreed in some way with the Department's methodology, but we went on to consider the fact that they failed to agree on the nature of DOR's shortcomings. See Solem, ¶ 22. More to the point, we noted that the District Court did not rest its determination on the purported shortcomings of DOR's methodology, as testified to by the Solems' experts, but on a metric that none of the experts—including the Solems' experts—relied upon. See Solem, ¶ 23. Far from overlooking material facts, our review of the record extensively considered the testimony of the Solems' experts and determined it was insufficient to overcome the long- established presumption that DOR appraisals are correct, with the burden resting on the taxpayer to disprove them. W. Airlines v. Michunovich, 149 Mont. 347, 353, 428 P.2d 3, 7 (1967). Accordingly, IT IS HEREBY ORDERED that the petition for rehearing is DENIED. The Clerk of Court is directed to mail copies of this Order to all counsel of record. DATED this 1-- day of November, 2024.

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