WASATCH COUNTY v. Tax Commission

2009 UT App 221, 217 P.3d 270, 636 Utah Adv. Rep. 28, 2009 Utah App. LEXIS 233, 2009 WL 2461887

• Court: Court of Appeals of Utah
• Decided: August 13, 2009
• Docket: Case No. 20080732-CA
• Status: Published

Opinions

OPINION

DAVIS, Judge:

11 Wasatch County (the County) appeals the district court's order granting Warren and Tricia Osborn's (the Osborns) motion to dismiss. We affirm.

BACKGROUND

12 The dispute underlying this case was initially brought before the Utah State Tax Commission (the Commission) and involved the County and several property owners, including the Osborns. After the Commission entered a final order, the Osborns and the other property owners filed a petition for review with the Utah Supreme Court. Thereafter, the County filed a cross-petition for review.¹

3 The day following its filing of the cross-petition in the supreme court, the County also filed a petition for review in the district court.² The Osborns moved to dismiss that case. The County, the Commission, and the district court all agreed that the Osborns could participate in the case because they were parties thereto when the case was originally heard by the Commission. At oral argument on the motion to dismiss, the Os-borns argued that the County could not request review in the district court after having already elected to participate in the appeal initiated before the supreme court. After briefing, the district court dismissed the County's appeal, ruling that it did not have subject matter jurisdiction over the case. The district court ruled that because the County had cross-petitioned in the case before the supreme court and invoked the supreme court's jurisdiction, the County could not thereafter invoke the jurisdiction of the district court by additionally filing for review there. The County now appeals this determination.

ISSUE AND STANDARD OF REVIEW

14 The district court granted the motion to dismiss on the ground that it did not have subject matter jurisdiction to hear the case. "The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness, according no deference to the district court's determination." Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147.

ANALYSIS

15 Utah Code section 59-1-602 provides, "Any aggrieved party appearing before the commission or county whose tax revenues are affected by the decision may at that party's option petition for judicial review in the district court pursuant to this section, or in the Supreme Court or the Court of Appeals pursuant to Section 59-1-610." Utah Code Ann. § 59-1-602(1)(a) (2008) (emphasis added). We agree with the County that this section allows each party to a tax commission decision to appeal to the court of its choice, and we also agree that one party's filing of an appeal does not restrict the avenues of appeal open to the other parties³ We do not, however, agree with the County that it properly invoked the jurisdiction of the district court.

T6 After the property owners petitioned for appeal in the supreme court, the County filed a cross-petition seeking affirmative relief. We are not convinced by the Commission's and the County's arguments that the County's cross-petition for review did not qualify as a "petition for judicial review" under the statute. The County's eross-petition made no reference whatsoever to seeking review in the district court. Rather, the cross-petition unconditionally petitioned the supreme court for affirmative relief:

Wasatch County hereby cross-petitions the Court for review of the Findings of Fact, Conclusions of Law, and Final Decision of the Utah State Tax Commission .... This Cross-Petition seeks review of that portion of the Tax Commission Decision which allocates 65% of the value of the entire lot to the ten-acre building envelope ....

Thus, the County exercised its option to petition the supreme court for relief, invoking the jurisdiction of the supreme court. And after such action, the other option provided by statute, ie., to petition the district court for relief, was no longer available to the County. See generally id. (allowing any party to seek judicial review with either the district court or an appellate court).

CONCLUSION

T7 We agree that the district court did not have jurisdiction to hear an appeal from the case before the Commission after both parties had elected to petition the supreme court for review, unconditionally seeking affirmative relief therein. We therefore affirm the district court's grant of the Osborns' motion to dismiss.⁴

18 I CONCUR: RUSSELL W. BENCH, Judge.

1 . The Utah Supreme Court later transferred this case to the Utah Court of Appeals, and it is currently pending before us under case number 20080304-CA.

2 . - Four days following the filing of the petition for review in the district court, the County moved to stay the proceedings before the supreme court.

3 . The Utah Code does not prescribe a procedure to be followed should different parties elect to appeal in different courts. It appears that in such situations the practice has been to stay proceedings in the case filed with the appellate court until the appeal taken in the district court has reached a conclusion. We agree with the Commission that some guidance on the matter would be helpful, but such a decision is not ours to make. Instead, it is within the province of the legislature. Cf. Utah Fuel Co. v. Industrial Comm'n, 73 Utah 199, 273 P. 306, 311 (1928) (per curiam) ("It is not within our province to read something into the statute not found there, nor to carve out exceptions to meet hard cases.").

4 . We decline the Osborns' request for attorney fees based on a frivolous appeal. See generally Utah R.App. P. 33(a). "A frivolous appeal is one without merit. But something more must be required or we will find ourselves in a loser pay' situation." O'Brien v. Rush, 744 P.2d 306, 310 (Utah Ct.App.1987). An appeal is frivolous if it "is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law." Utah R.App. P. 33(b). This appeal does not satisfy that definition.