Summary
treating motion for summary judgment as Rule 12(c) motion where the record “contains no affidavits”
Summary of this case from Horne v. Town of Blowing RockOpinion
No. 7913DC449
Filed 8 January 1980
Taxation 41 — action to obtain tax lien — failure to allege specific defense — judgment on pleadings The trial court properly entered judgment on the pleadings for plaintiff town in an action to obtain and foreclose a tax lien against defendants' property where defendants' answers generally denied that they owe taxes to the town for certain years but failed to assert any defense as provided by G.S. 105-381(a)(1) and failed to allege that defendants have made a demand to the town for release of the taxes by submitting a written statement of their defense to payment or enforcement of the taxes pursuant to G.S. 105-381(a)(2).
APPEAL by defendants from Wood, Judge. Judgment entered 6 December 1978 in District Court, BLADEN County. Heard in the Court of Appeals 7 December 1979.
Chandler, Hill Womble, by Joseph B. Chandler, Jr., for plaintiff appellee.
John C. B. Regan III, for defendant appellants.
Judge CLARK dissenting.
The Town of Bladenboro (Town) filed three complaints against the six defendants, husbands and wives and citizens of Bladen County, alleging that the Town is a body politic having authority to levy taxes against real and personal property; that all defendants owned real property in Bladenboro Township; that each defendant listed taxes for the years 1971 through 1975; and that the taxes levied during that period are unpaid. The Town sought to obtain tax liens against the properties and sought to have a commissioner appointed to sell the properties.
An answer was filed by each defendant, husband and wife, admitting the Town's authority to levy taxes; admitting that each defendant was a citizen and resident of the county; but denying that each owed taxes for 1971, 1972, and 1973. Each answer admitted that each defendant owed taxes for 1974 and 1975.
A hearing was held on the Town's motion for judgment upon the pleadings or, alternatively, for summary judgment. The court reviewed the complaint, answers, and affidavit of the Town's attorney (which does not appear of record), and applicable statutes and cases. The trial court entered judgment in favor of the Town against defendants. Defendants appealed.
Defendants contend the trial court erred by granting the motion for summary judgment or judgment on the pleadings in plaintiff's favor. We do not agree and affirm the judgment entered.
Where a motion for summary judgment is made along with a motion for judgment on the pleadings and the record on appeal contains no affidavits, answers to interrogatories, or anything else other than the pleadings upon which to base the decision, the court's entry of judgment will be deemed to have been made under G.S. 1A-1, Rule 12(c), of the Rules of Civil Procedure. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974).
Justice Huskins stated for our Supreme Court in Ragsdale v. Kennedy, 286 N.C. 130, 136-37, 209 S.E.2d 494, 499 (1974):
"Motion for judgment on the pleadings is authorized by Rule 12(c) of the North Carolina Rules of Civil Procedure. G.S. 1A-1, Rule 12(c) (1969). The motion operates substantially the same as under the code system before adoption of the new rules of civil procedure. See Powell v. Powell, 271 N.C. 420, 156 S.E.2d 691 (1967); Reidsville v. Burton, 269 N.C. 206, 152 S.E.2d 147 (1967); Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18 (1964); 6 Strong, North Carolina Index 2d, Pleadings, 38 (1968).
North Carolina's Rule 12(c) is identical to its federal counterpart. The rule's function is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. A motion for judgment on the pleadings is the proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain. When the pleadings do not resolve all the factual issues, judgment on the pleadings is generally inappropriate. 5 Wright and Miller, Federal Practice and Procedure, 1367 (1969).
Judgment on the pleadings is a summary procedure and the judgment is final. See James, Civil Procedure 6.17 (1965). Therefore, each motion under Rule 12(c) must be carefully scrutinized lest the nonmoving party be precluded from a full and fair hearing on the merits. The movant is held to a strict standard and must show that no material issue of facts exists and that he is clearly entitled to judgment. Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 479 F.2d 478 (6th Cir. 1973).
The trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party. All well pleaded factual allegations in the nonmoving party's pleadings are taken as true and all contravening assertions in the movant's pleadings are taken as false."
Accepting defendants' factual allegations as true, we, nevertheless, affirm the trial court's entry of judgment.
G.S. 105-381(a)(1), (2), and (3) provide:
"Taxpayer's remedies. — (a) Statement of Defense. — Any taxpayer asserting a valid defense to the enforcement of the collection of a tax assessed upon his property shall proceed as hereinafter provided.
(1) For the purpose of this subsection, a valid defense shall include the following:
a. A tax imposed through clerical error;
b. An illegal tax;
c. A tax levied for an illegal purpose.
(2) If a tax has not been paid, the taxpayer may make a demand for the release of the tax claim by submitting to the governing body of the taxing unit a written statement of his defense to payment or enforcement of the tax and a request for release of the tax at any time prior to payment of the tax.
(3) If a tax has been paid, the taxpayer, at any time within three years after said tax first became due or within six months from the date of payment of such tax, whichever is the later date, may make a demand for a refund of the tax paid by submitting to the governing body of the taxing unit a written statement of his defense and a request for refund thereof."
The answers of defendants failed to raise any defenses as provided by G.S. 105-381(a)(1). Defendants did not allege that they, as taxpayers, have made demand for release of the taxes claimed by submitting to the Town of Bladenboro a written statement of their defense to payment or enforcement of the taxes. See G.S. 105-381(a)(2).
Justice Barnhill (later Chief Justice) stated for our Supreme Court in Development Co. v. Braxton, 239 N.C. 427, 429, 79 S.E.2d 918, 920 (1954): "Ordinarily the sovereign may not be denied or delayed in the enforcement of its right to collect the revenue upon which its very existence depends. This rule applies to municipalities and other subdivisions of the State Government."
The General Assembly, through the enactment of G.S. 105-381(a), has directed the course a taxpayer must follow in a case where the governing body of a taxing unit has instituted an action to enforce its right to collect taxes.
The trial court, in reviewing the answers in the light most favorable to defendants and giving defendants all permissible inferences, correctly concluded that plaintiff's Rule 12(c) motion should have been allowed. We are aware that defendants denied owing the taxes for the years 1971, 1972, and 1973; however, such general denials were not sufficient to withstand plaintiff's motion in light of the above statutory restrictions. Defendants did not elect to amend their answer prior to a hearing on the motion of plaintiff by the trial court. If defendants had paid the taxes in question, they were under a duty pursuant to G.S. 1A-1, Rule 8(c), of the Rules of Civil Procedure to allege payment as an affirmative defense.
The trial court considered the statute in question, compared defendants' answer with the statute, and found that no statutory defenses or payment were alleged. The Town met the standard of Rule 12(c) that no material issue of fact existed and that it was entitled to judgment.
Judgment affirmed.
Judge ARNOLD concurs.
Judge CLARK dissents.