Mingo County Redevelopment Auth. v. Green

• Citation: 207 W.Va. 486,534 S.E.2d 40
• Decision Date: 10 July 2000
• Docket Number: No. 26601.,26601.
• Court: West Virginia Supreme Court
• Parties: MINGO COUNTY REDEVELOPMENT AUTHORITY, Plaintiff Below, Appellee, v. James GREEN, Sr., Single; James Green, Jr., Single; Sidney Green, Single; Alvin Green, Single; Harvey Green, Single; Connie Green, Single; and Patricia Green, Single, Defendants Below, Glen B. Gainer, III, Auditor and Commissioner of Delinquent and Non-Entered Lands for the State of West Virginia, Defendant Below, Appellant, and Stephen C. Sluss, Deputy Commissioner of Delinquent and Non-Entered Lands for Mingo County, Defendant Below, Appellant, and Maggie Harmon, and Matewan Bank, and Sheriff of Mingo County, West Virginia, and State of West Virginia, and Unknown Heirs, Defendants Below.

534 S.E.2d 40

207 W.Va. 486

MINGO COUNTY REDEVELOPMENT AUTHORITY, Plaintiff Below, Appellee, v. James GREEN, Sr., Single; James Green, Jr., Single; Sidney Green, Single; Alvin Green, Single; Harvey Green, Single; Connie Green, Single; and Patricia Green, Single, Defendants Below, Glen B. Gainer, III, Auditor and Commissioner of Delinquent and Non-Entered Lands for the State of West Virginia, Defendant Below, Appellant, and Stephen C. Sluss, Deputy Commissioner of Delinquent and Non-Entered Lands for Mingo County, Defendant Below, Appellant, and Maggie Harmon, and Matewan Bank, and Sheriff of Mingo County, West Virginia, and State of West Virginia, and Unknown Heirs, Defendants Below.

No. 26601.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 2000.

Decided July 10, 2000.

Dissenting Opinion of Chief Justice Maynard July 14, 2000.

George C. Howell, Esq., Ashland, Kentucky, Attorney for Appellee.

Barbara Harmon-Schamberger, Esq., Charleston, West Virginia, Attorney for Appellants Gainer and Sluss.

PER CURIAM:

In this case, the Auditor of the State of West Virginia, the Honorable Glen B. Gainer, III, and the Mingo County Redevelopment Authority (the "Redevelopment Authority") both claim the right to dispose of the same piece of property. The Auditor argues that he followed the law and, through his agents, made a valid and enforceable "tax-sale"¹ of the property to a new owner. The Redevelopment Authority argues that it had instituted valid condemnation proceedings against the same property and that the Auditor should not have been permitted to conduct the tax-sale.

The Circuit Court of Mingo County concurred with the Redevelopment Authority, and in an order dated August 25, 1998, voided the deed granted by the Auditor, granted the tax-sale purchaser a refund, and implicitly granted ownership of the property to the Redevelopment Authority. Subsequently, the Auditor appealed this decision. Because we find that the Auditor complied with the notice requirements of W. Va.Code § 11A-3-1, et seq., we find that the tax-sale was valid, and for the reasons set forth below, reverse.

I. BACKGROUND

This case involves the collision of a condemnation action and a so-called tax-sale of land on which the taxes were delinquent. Irene Green owned an interest in property on Mate Creek, near Red Jacket in Mingo County. In 1992, Irene Green died intestate, leaving several heirs.² For reasons unknown, none of the Green heirs paid the property tax for several years. This failure to pay the tax on Mrs. Green's real property initiated a statutorily-required process whereby the land eventually would be sold for payment of the taxes.³

As this tax-sale process advanced, the property came to the attention of the Mingo County Redevelopment Authority. The Redevelopment Authority decided that it would like to acquire the late Mrs. Green's property to use the land to develop a housing project. The Redevelopment Authority is an entity created by the County Commission of Mingo County pursuant to W. Va.Code § 16-18-1, et seq., and charged with the duty of ameliorating slum and blight in the county.⁴

The Redevelopment Authority filed a condemnation proceeding against the property on November 20, 1995.⁵ Although the Redevelopment Authority served this complaint upon the Mingo County Sheriff's office, counsel for the Redevelopment Authority did not file a notice of lis pendens with the county clerk, which would have put any potential purchasers on notice of the condemnation action.⁶

The Redevelopment Authority named the State of West Virginia in the complaint, apparently in an effort to discover any claim the State might have had on the Green property. The Department of Tax and Revenue replied by letter dated January 16,1996, that the State had no liens upon the property, but that the Mingo County Sheriff had a lien upon the property for unpaid property taxes.⁷

In spite of, or perhaps because of, the ongoing dealings between the Green heirs and the Redevelopment Authority, no one had paid the taxes since sometime in 1992. At some point, the Sheriff of Mingo County (the "Sheriff") offered the property for sale at auction.⁸ No one purchased the property at the Sheriff's sale, so pursuant to W. Va. Code § 11A-3-8 (1994), the Sheriff then "certified" the property to the Auditor of the State of West Virginia.⁹

Both procedures, the condemnation and the tax-sale, continued. In July 1996, counsel for the Redevelopment Authority contacted an employee of the Auditor's office. On August 16, 1996, that same employee of the Auditor's office faxed to counsel for the Redevelopment Authority a detailed description of the taxes and fees then owing on the property. However, for reasons unknown, neither the Green heirs nor the Redevelopment Authority ever paid the taxes. Some eight months later, the Auditor's agent, Deputy Commissioner of Delinquent and Nonentered Lands Stephen C. Sluss,¹⁰ sold the property at auction on April 23, 1997. At the auction, one Vida Maynard¹¹ purchased the property from the Auditor. However, there was still time at this point for the owner to redeem the property by paying the accumulated taxes and fees. As required by statute, the Auditor's office notified the Green heirs of the sale, and of the amount they would have to pay to redeem the property before the Auditor issued a deed to the purchaser.

Meanwhile, back at the Mingo County Courthouse, the condemnation process had gathered speed, and on September 15, the Circuit Court of Mingo County entered an order approving the payment of $10,500 by the Redevelopment Authority into court (later to be paid to the Green heirs) and granting the Redevelopment Authority "immediate possession" of the property. Still, neither the Green heirs nor the Redevelopment Authority paid the required sums to the Auditor. The tax-sale process and the condemnation process finally collided on October 1, 1997, when Deputy Commissioner Sluss conveyed, at the request of the purchaser Ms. Maynard, a quitclaim deed to the Green property to one Maggie Harmon.¹²

Within the context of its already pending condemnation action, the Redevelopment Authority moved the Circuit Court of Mingo County to set aside the deed to Ms. Harmon. The court then requested the Auditor to appear, so that the court could resolve the question of ownership. After some delay, the Redevelopment Authority finally served the Auditor with a copy of the complaint in the condemnation action and the judge conducted hearings on November 24, 1997 and May 18, 1998.¹³

After the hearings and examining briefs from the Redevelopment Authority and the Auditor, Judge Thornsbury determined that the Auditor should have provided the Redevelopment Authority with notice of the sale. Thereafter, the court issued an order granting the Redevelopment Authority's Motion to Set Aside on August 25, 1998, in which it voided the deed conveyed by the Auditor to Ms. Harmon, ordered any consideration paid at the tax-sale to be returned to the buyer, and thus upheld its earlier grant of possession of the Green property to the Redevelopment Authority.¹⁴

The Auditor appealed the decision to this Court, and argues that he, the Auditor, or his agents followed the statutorily mandated procedure for the tax-sale, and that the tax-sale deed conveyed to Ms. Harmon was valid. However, for reasons not clear to the Court,¹⁵ the Auditor requests that this Court validate his adherence to the procedure, but still set aside the deed to Ms. Harmon, order her consideration returned, and allow the Redevelopment Authority possession of the property. Because we find that the Auditor fulfilled his obligations under the statute, we hold that the sale by the Auditor must stand.

II. STANDARD OF REVIEW

We are asked to examine the lower court's interpretation of the statute that regulates tax-sales. In such an examination, our review is de novo. "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." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Furthermore, we have a duty to apply the statute as written when its terms are not ambiguous." ` "When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but to apply the statute." Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369 [135 S.E.2d 262 (1964) ].' Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969)." Syl. pt. 3, Central West Virginia Refuse, Inc. v. Public Service Com'n of West Virginia, 190 W.Va. 416, 438 S.E.2d 596 (1993).

III. DISCUSSION

From the record we will attempt to reconstruct the arguments of the parties.¹⁶ The Redevelopment Authority claims that the Auditor and the Sheriff of Mingo County had actual or constructive notice of the Redevelopment Authority's claim to the property. Because of this notice, either the Sheriff or Auditor should have halted the tax-sale process and allowed the Redevelopment Authority to condemn the property, presumably allowing the Redevelopment Authority the opportunity of paying the delinquent taxes at some future time.

As an initial matter, the Auditor argues that, because of the importance of finality in tax-sales, it is imperative that no court overturn a valid sale. To do otherwise would invite a flood of challenges and would create title problems for thousands of buyers who obtained their property through tax-sales.

We agree with the Auditor that confidence in one's title to land is of paramount importance. As we have remarked previously, "certainty above all else is the preeminent compelling public policy to be served." Hock v. City of...