Heavner v. Hess
| Decision Date | 20 September 2022 |
| Docket Number | 21-0558 |
| Parties | Robert D. Heavner, Defendant Below, Petitioner v. Larry Hess, Plaintiff Below, Respondent And Ramona J. Beglen, Defendant Below, Respondent |
| Court | West Virginia Supreme Court |
Self-represented petitioner Robert D. Heavner appeals three orders of the Circuit Court of Berkeley County. In the first order, entered on May 4, 2021, the circuit court granted Respondent Ramona J. Beglen's motion for summary judgment and allowed Respondent Larry Hess, Assessor of Berkeley County ("Assessor Hess"), to remove parcel 72 from Map 16 Opequon District, of the Berkeley County tax maps, land books, and other public records in which it appears and to provide a certified copy of the court's order for recording in the Office of the Clerk of the Berkeley County Council. In the second order, entered on May 28,2021, the circuit court denied petitioner's motion to alter or amend the May 4,2021, order pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. In the third order entered on June 14, 2021, the circuit court reaffirmed its denial of his Rule 59(e) motion following petitioner's objection to the entry of the May 28, 2021, order. Assessor Hess, by counsel Alex A. Tsiatsos, and Respondent Beglen, by counsel Richard G. Gay, (collectively "respondents") filed a joint response in support of the circuit court's orders. Petitioner filed a reply.
The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affmning the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.
We provide a simplified version of the facts and procedural history of this case: Parcels 71 and 72 in the Opequon District of Berkeley County, West Virginia, have the same street address, 5028 Shepherdstown Road. Parcel 71 belongs to Respondent Beglen who bought it (with her late husband) in 1967. In 2012, petitioner bought parcel 72 at a tax sale conducted by the Deputy Commissioner of Delinquent and Non-entered Lands.[1] Petitioner was the last person in a series of buyers who purchased parcel 72 at tax sales from 1974 to 2012.
In 2020, Assessor Hess filed a declaratory judgment action in the Circuit Court of Berkeley County to correct the Berkeley County tax records based upon his determination that parcel 72 constituted a "phantom parcel," having no actual, separate existence from Respondent Beglen's parcel 71. Initially, Assessor Hess named as defendants Respondent Beglen and a Lusmilo Sanches who bought parcel 72 from petitioner in May of 2012. However, after the filing of the declaratory judgment action, petitioner produced a previously unrecorded deed, dated November 23,2012, in which Ms. Sanches reconveyed parcel 72 to him.[2] Accordingly, on March 21,2020, Assessor Hess filed an amended complaint which named petitioner as an additional defendant.[3]
On December 14,2020, Respondent Beglen filed amotion for summary judgment, arguing that (1) all tax sales of parcel 72, including petitioner's purchase of the parcel in 2012, were void ab initio because parcel 72 had no actual, separate existence from parcel 71 for which she had paid all prior taxes; and (2) petitioner's purchase of parcel 72 at the 2012 tax sale was also void due to a jurisdictional defect in that petitioner failed to serve Respondent Beglen with a notice to redeem parcel 72 when Respondent Beglen was the parcel's true owner as the owner of parcel 71. Respondent Beglen submitted affidavits from the attorneys that she and Assessor Hess had retained to conduct title searches regarding parcels 71 and 72. In those affidavits, the attorneys opined that parcel 72 had no actual, separate existence from parcel 71 and that the separate tax assessment for parcel 72 had been erroneous. Respondent Beglen also submitted an affidavit, in which she affirmed that she paid all real estate taxes on the property she owned and never received any notice of a sale of her property due to nonpayment of taxes.
In his response to the motion for summary judgment, petitioner admitted that he failed to serve Respondent Beglen with a notice to redeem parcel 72. However, petitioner argued that he was not legally required to serve Respondent Beglen with a notice to redeem because she was not the owner of parcel 72, which had an existence separate and apart from Respondent Beglen's parcel 71. Petitioner attached three self-authored and signed counter-affidavits in support of his response.
The circuit court, by an order entered on May 4,2021, granted Respondent Beglen's motion for summary judgment. In that order, the circuit court also granted Assessor Hess the relief he sought in his amended complaint by directing Assessor Hess to remove parcel 72 from Map 16, Opequon District, of the Berkeley County tax maps, land books, and other public records in which it appears and to provide a certified copy of the court's order for recording in the Office of the Clerk of the Berkeley County Council.
On May 17, 2021, petitioner filed a motion to alter or amend the circuit court's May 4, 2021, summary judgment order pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. On that same day, the circuit court entered a scheduling order setting forth a briefing schedule with regard to the motion. Pursuant to the briefing schedule, Respondent Beglen and Assessor Hess each filed a response in opposition to petitioner's Rule 59(e) motion. Thereafter, petitioner filed a memorandum of law in support of his motion on May 28, 2021; the circuit court treated petitioner's May 28, 2021, memorandum of law as a reply to respondents' responses. Also on May 28, 2021, the circuit court entered an order denying the motion to alter or amend its summary judgment order.
However, on June 4, 2021, petitioner filed a reply to each of the responses filed by Respondent Beglen and Assessor Hess. On June 7, 2021, petitioner also submitted a proposed order with regard to his Rule 59(e) motion. Accordingly, petitioner objected to the entry of the circuit court's May 28, 2021, order as premature. The circuit court, by order entered on June 14, 2021, noted its receipt of petitioner's June 4, 2021, replies and his June 7, 2021, proposed order. The circuit court once again rejected petitioner's arguments and reaffirmed its denial of the Rule 59(e) motion to alter or amend the summary judgment order.
Petitioner now appeals the circuit court's May 4, 2021, May 28, 2021, and June 14, 2021, orders. While the May 28 and June 14 orders disposed of petitioner's Rule 59(e) motion, we have held that the standard of review for the denial of a motion to alter or amend judgment, filed pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, "is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).
Rule 56(c) of the West Virginia Rules of Civil Procedure provides that summary judgment shall be granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we held that "[a] circuit court's entry of summary judgment is reviewed de novo.”
On appeal, petitioner argues that the circuit court erred in awarding summary judgment to Respondent Beglen and Assessor Hess and in finding that petitioner's failure to serve Respondent Beglen with a notice to redeem parcel 72 constituted the dispositive issue in the case. Respondents counter that the circuit court awarded them summary judgment on an additional ground: that all tax sales of parcel 72, including petitioner's purchase of the parcel in 2012, were void ab initio because parcel 72 had no actual, separate existence from Respondent Beglen's parcel 71 for which she had paid all prior taxes. Respondents further argue that, as best as they can determine, petitioner does not substantively dispute that he failed to serve a notice to redeem on Respondent Beglen or that all tax sales of parcel 72 were void ab initio.
Like respondents, we have difficulty understanding petitioner's arguments. However, we find that petitioner clearly concedes that he failed to serve Respondent Beglen with a notice to redeem parcel 72. To the extent that petitioner disputes that parcel 72 had no actual existence separate from Respondent Beglen's parcel 71, we decline to review any such arguments pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, which provides in pertinent part, that "[petitioner]'s brief must contain an argument clearly exhibiting the points of fact and law presented, the standard of review applicable, and citing the authorities relied on, under headings that correspond with the assignments of error" and that this Court "may disregard errors that are not adequately supported by specific references to the record on appeal." As we have previously stated, State, Dep 't of Health and Human Res., Child Advocate Office on Behalf of Robert Michael B. v. Robert Morris N.t 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) (quoting United States...
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