Games-Neely v. Real Property, No. 29999.

CourtSupreme Court of West Virginia
Writing for the CourtALBRIGHT, Justice.
Citation565 S.E.2d 358,211 W.Va. 236
PartiesPamela Jean GAMES-NEELY, Prosecuting Attorney of Berkeley County, West Virginia, on Behalf of the WEST VIRGINIA STATE POLICE, Petitioner Below, Appellee, v. REAL PROPERTY, INCLUDING A BRICK RANCH HOUSE AND GARAGE, COMMONLY KNOWN AS 1175 SAM MASON ROAD LOCATED IN MILL CREEK DISTRICT OF BERKELEY COUNTY, WV MAP 13, PARCEL 32, LIBRE 237, FOLIO AND BOOK 635, Respondent Below, Hattie Sowers, Appellant.
Decision Date22 February 2002
Docket NumberNo. 29999.

565 S.E.2d 358
211 W.Va.
236

Pamela Jean GAMES-NEELY, Prosecuting Attorney of Berkeley County, West Virginia, on Behalf of the WEST VIRGINIA STATE POLICE, Petitioner Below, Appellee,
v.
REAL PROPERTY, INCLUDING A BRICK RANCH HOUSE AND GARAGE, COMMONLY KNOWN AS 1175 SAM MASON ROAD LOCATED IN MILL CREEK DISTRICT OF BERKELEY COUNTY, WV MAP 13, PARCEL 32, LIBRE 237, FOLIO AND BOOK 635, Respondent Below,
Hattie Sowers, Appellant

No. 29999.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2002.

Decided February 22, 2002.

Dissenting Opinion of Justice Maynard May 21, 2002.

Concurring Opinion of Justice Starcher July 3, 2002.


565 S.E.2d 361
Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, for Appellee

Kevin D. Mills, Law Office of Kevin D. Mills, Martinsburg, for Hattie Sowers.

565 S.E.2d 359

565 S.E.2d 360
ALBRIGHT, Justice

Hattie Sowers appeals from the January 4, 2001, order of the Circuit Court of Berkeley County, denying her motion to set aside a default judgment order previously entered against her. As a result of the default judgment order, the Appellant's home was forfeited to the State of West Virginia pursuant to the West Virginia Contraband Forfeiture Act (the "Forfeiture Act"), West Virginia Code §§ 60A-7-701 to -707 (1988) (Repl.Vol.2000 & Supp.2001). Upon a full review of the arguments raised and examination of the controlling statutory language, we find that the lower court committed error and accordingly, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2000, the West Virginia State Police executed a search warrant at 1175 Sam Mason Road in Berkeley County, West Virginia, and seized both marijuana and various items of drug paraphernalia. The officers arrested the three individuals who were determined to be in possession of the seized drug items: Stacy Ashby, Paul Burcham, and Paul Wolford.

The prosecuting attorney of Berkeley County, Appellee Pamela Jean Games-Neely, filed a forfeiture petition on July 21, 2000, in which she alleged that the property where the drugs were found, which consisted of a brick ranch house and a garage, was subject to the Forfeiture Act, "as proceeds traceable to the illegal sale of a controlled substance." Through the petition, the State averred that:

5. The ... officers seized in excess of 500 grams of marijuana, scales, wrappers, cash, paraphernalia and other items associated with the use and distribution of Marijuana.
6. ... Stacy Ashby, Paul Burcham, and Paul Wolford ... confessed to the use and sale of marijuana on the subject premises.
7. The subjects further admitted that the proceeds of the drug sales were, in part, used to satisfy the costs of running the subject premises.
8. The presence of illegal substances was so pervasive throughout the premises (even detectable by smell outside the house) that no one who visited or lived on the premises could be unaware of the nature of the illegal drug activities taking place therein.
9. Confidential informants did in fact make at least two purchases of controlled substances from the premises prior to the execution of the search warrant.
10. The items seized from the subject premises together with the observed behavior and confessions are consistent which [sic] a drug dealer's method of operation and consistent with the premises being used to facilitate illegal drug trafficking and is thus forfeit[able] to the State of West Virginia.

The Appellant was served with a copy of the forfeiture petition and a summons on August 11, 2000, as an owner and resident of the property where the drugs were seized. In her answer to the forfeiture petition, filed on September 14, 2000, the Appellant alleged that the West Virginia State Police violated both the state and federal constitutions in procuring the information set forth in the forfeiture petition. She further averred that the warrant obtained to search her premises

565 S.E.2d 362
was issued without the requisite probable cause.

The State filed a motion for default judgment1 based on the fact that the Appellant filed her answer four days after the expiration of the thirty-day time period provided for answering under the Forfeiture Act. See W.Va.Code § 60A-7-705(d).2 In response to the State's efforts to obtain a default judgment, the Appellant argued that her age and indigence contributed to the late filing of her answer;3 she would be rendered homeless if the subject property was forfeited; and the State was not prejudiced by the late filing. In addition, Appellant raised the statutory defense of innocent ownership. See W.Va. Code § 60A-7-703(a)(7).4 As a final defense, the Appellant averred that the State was without jurisdiction to proceed because it had failed to name all the interested parties in its forfeiture petition, as required by West Virginia Code § 60A-7-705(b).

Based solely on the four-day late filing of Appellant's answer to the forfeiture petition, the circuit court granted a default judgment to the State, by order dated October 25, 2000, and vested title to the Appellant's property in the West Virginia State Police.5 Included in the default judgment order were the circuit court's findings that the Appellant was the record owner of the subject property and that no persons were known to have a security interest in the property.

Pursuant to Rules 59 and 60(b) of the West Virginia Rules of Civil Procedure, the Appellant sought relief from the default judgment. In support of these motions, the Appellant averred that she was not the sole owner of the property, but rather a joint owner with her daughter, Carol Lee Aquino, and she informed the circuit court that Option One Mortgage Corporation had a security interest in the property in the amount of $45,000. Based on the lack of service of the forfeiture petition on Ms. Aquino and Option One Mortgage Corporation, the Appellant argued that she was entitled to have the default judgment set aside. See W. Va.Code § 60A-7-705(b); see also W.Va.Code § 60A-7-705(a)(4)(vii) (requiring that forfeiture petition contain "[t]he identity of all persons or corporations having a perfected security interest or lien in the subject property..."). Relying on the same grounds as those asserted by the Appellant,6 Ms. Aquino intervened in the proceedings and filed a motion seeking relief from the default judgment.7

While the circuit court denied the motions of the Appellant and Ms. Aquino to set aside the default judgment, the lower court did modify the original order granting forfeiture, in its order dated January 4, 2001, to clarify that only the Appellant's one-half interest in the subject property was forfeited to the State of West Virginia. The modified order

565 S.E.2d 363
specified further that title shall vest in the West Virginia State Police subject to the one-half interest of Carol Lee Aquino, the prior lien of Option One Mortgage Corporation, "and any other bona fide lien or interest recorded prior to July 21, 2000, if any." The circuit court reasoned that Ms. Aquino's intervention,
does not change the status of the default obtained against the interest of Hattie Sowers. Sowers, as one of two joint owners of the respondent property, received personal service pursuant to West Virginia Rule of Civil Procedure on August 11, 2000 and did not Answer said petition, nor appear in person or by counsel to respond to the allegation set forth in a timely manner. The statute regarding forfeitures leaves the Court with no discretion as to the effect of an untimely answer. The statute requires that the Court "shall" enter a default judgment order if the answer is untimely.

The Appellant seeks relief from the lower court's denial of her motion for relief from the default judgment.

II. STANDARD OF REVIEW

This case presents issues concerning the interpretation of the Forfeiture Act. As with all cases involving statutory interpretation, our review is de novo given the need to resolve questions of law. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."); accord Syl. Pt. 1, West Virginia Human Rights Comm'n v. Garretson, 196 W.Va. 118, 468 S.E.2d 733 (1996). With this reviewing principle as our guide, we proceed to discuss the issues before us.

III. DISCUSSION

A. Improper Service

The Appellant contends that the circuit court erred in refusing to dismiss the State's petition for forfeiture because the petition was not served upon all persons having an interest in the property as required by West Virginia Code § 60A-7-705(b). Section 705(b) of the Forfeiture Act provides, in pertinent part, that:

At the time of filing [the forfeiture petition] or as soon as practicable thereafter, a copy of the petition for forfeiture shall be served upon the owner or owners of the seized property, as well as all holders of a perfected security interest or lien or of a possessory or statutory lien in the same class, if known.

W.Va.Code § 60A-7-705(b) (emphasis supplied).

The Appellant does not dispute the fact that she was properly and timely served with a copy of the forfeiture petition. Her challenge to the forfeiture proceedings arises from the State's failure to serve Ms. Aquino, a joint owner of the property, and Option One Mortgage, a holder of a properly recorded lien on the subject property. According to the Appellant, the State's failure to serve all the owners and lien holders of record renders the forfeiture order unenforceable and requires that the forfeiture petition be dismissed.

Underlying the requirement of section 705(b) that the "owner or owners" of the property subject to a forfeiture petition be served with the petition is the objective of notifying all property owners whose rights may be affected by forfeiture of the pending forfeiture proceedings and extension of the...

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19 practice notes
  • State Farm Fire v. Prinz, No. 11–1265.
    • United States
    • Supreme Court of West Virginia
    • May 21, 2013
    ...a statute that was in conflict with W. Va. R. Evid., Rule 702); Games–Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002) (concluding that Rule 60(b) applies to forfeiture proceedings under the Forfeiture Act and supersedes West Virginia Code § 60......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • October 11, 2018
    ...55–7B–6d, in its entirety, is unconstitutional and unenforceable."); Games-Neely ex rel. W. Virginia State Police v. Real Property , 211 W. Va. 236, 245, 565 S.E.2d 358, 367 (2002) ("Rule 60(b) has the force and effect of law; applies to forfeiture proceedings under the Forfeiture......
  • Louk v. Cormier, No. 31773.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2005
    ...Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994) (same). Recently, in Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002), we were again asked to determine the validity of a legislative statute that conflicted with a rule of this Court. The ......
  • Hinchman v. Gillette, No. 31760.
    • United States
    • Supreme Court of West Virginia
    • July 5, 2005
    ...Louk, ___ W. Va. at ___, ___ S.E.2d at ___, slip op. at 25. See also Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002) (invalidating a statute that was in conflict with Rule 60(b)); West Virginia Div. of Highways v. Butler, 205 W.Va. 146, ......
  • Request a trial to view additional results
19 cases
  • State Farm Fire v. Prinz, No. 11–1265.
    • United States
    • Supreme Court of West Virginia
    • May 21, 2013
    ...a statute that was in conflict with W. Va. R. Evid., Rule 702); Games–Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002) (concluding that Rule 60(b) applies to forfeiture proceedings under the Forfeiture Act and supersedes West Virginia Code § 60......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • October 11, 2018
    ...55–7B–6d, in its entirety, is unconstitutional and unenforceable."); Games-Neely ex rel. W. Virginia State Police v. Real Property , 211 W. Va. 236, 245, 565 S.E.2d 358, 367 (2002) ("Rule 60(b) has the force and effect of law; applies to forfeiture proceedings under the Forfeiture......
  • Louk v. Cormier, No. 31773.
    • United States
    • Supreme Court of West Virginia
    • July 1, 2005
    ...Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994) (same). Recently, in Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002), we were again asked to determine the validity of a legislative statute that conflicted with a rule of this Court. The ......
  • Hinchman v. Gillette, No. 31760.
    • United States
    • Supreme Court of West Virginia
    • July 5, 2005
    ...Louk, ___ W. Va. at ___, ___ S.E.2d at ___, slip op. at 25. See also Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002) (invalidating a statute that was in conflict with Rule 60(b)); West Virginia Div. of Highways v. Butler, 205 W.Va. 146, ......
  • Request a trial to view additional results

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