Rawl Sales & Processing Co. v. County Com'n of Mingo County

• Decision Date: 30 March 1994
• Docket Number: No. 21756,21756
• Citation: 191 W.Va. 127,443 S.E.2d 595
• Court: West Virginia Supreme Court
• Parties: RAWL SALES & PROCESSING CO., a Corporation, Petitioner Below, Appellee, v. COUNTY COMMISSION OF MINGO COUNTY, Respondent Below, Appellant. GILBERT IMPORTED HARDWOODS, INC., a Corporation, Petitioner Below, Appellee, v. COUNTY COMMISSION OF MINGO COUNTY, Respondent Below, Appellant. HAMPDEN COAL COMPANY, INC., a Corporation, Petitioner Below, Appellee, v. COUNTY COMMISSION OF MINGO COUNTY, Respondent Below, Appellant.

Page 595

443 S.E.2d 595

191 W.Va. 127

RAWL SALES & PROCESSING CO., a Corporation, Petitioner Below, Appellee, v. COUNTY COMMISSION OF MINGO COUNTY, Respondent Below, Appellant.

GILBERT IMPORTED HARDWOODS, INC., a Corporation, Petitioner Below, Appellee, v. COUNTY COMMISSION OF MINGO COUNTY, Respondent Below, Appellant.

HAMPDEN COAL COMPANY, INC., a Corporation, Petitioner Below, Appellee, v. COUNTY COMMISSION OF MINGO COUNTY, Respondent Below, Appellant.

No. 21756.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1994.

Decided March 28, 1994.

Dissenting Opinion of

Justice Neely March 30, 1994.

Syllabus by the Court

1. "W.Va.Code, 11-3-24, provides for two types of notice requirements: newspaper publication for general increases affecting a given class of property owners and personal notice for increases involving individual property owners." Syllabus point 5, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983).

2. "Even though W.Va.Code, 11-3-24, provides for newspaper publication where a general increase in property valuations is proposed by the Board, defective newspaper publication can be cured by adequate notice by mail or by the appearance of the affected taxpayer at a protest hearing." Syllabus point 6, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983).

3. "The provisions of Section 25, Article 3, Chapter 11, Code, 1931, as amended, governing appeals from the county court to the circuit court of the county from an assessment made by the county court, in which there was a hearing and an appearance by the property owner, and requiring that the application for an appeal be presented in the circuit court within thirty days from the adjournment of the county court by which the order complained of was rendered, and the provisions of Section 4, Article 3, Chapter 58, Code, 1931, requiring that the petition be accompanied by the original record of the proceeding in the county court in lieu of a transcript of such proceeding, are mandatory and will be read and considered together; and when it appears upon review in this Court that the petition, though presented within the thirty day period, was not accompanied by the original record of the proceeding in the county court and that no record of such proceeding was filed in the circuit court within the limitation of thirty days prescribed by Section 25 of the statute, the appeal applied for must be refused by the circuit court and the writ of error awarded by this Court to the judgment of the circuit court refusing such appeal will be dismissed." Syllabus, In re Stonestreet, 147 W.Va. 719, 131 S.E.2d 52 (1963).

4. The proper procedures for appeal from a county court [county commission] decision are outlined in West Virginia Code § 58-3-1 et seq. The provisions of this article are to be read in pari materia with § 11-3-25, which specifically addresses the appeal process for property tax assessments that are made pursuant to the property revaluation set forth in W.Va.Code § 11-1C-1 et seq.

Jane Moran, Williamson, for appellants.

James J. Alex, Charleston, for State Tax Com'r.

Stephen Stockton, Asst. Atty. Gen., Tax and Revenue Div., Charleston, for State.

Paul E. Pinson, Williamson, for appellees.

BROTHERTON, Chief Justice:

The appellants, the Mingo County Commission and the State Tax Commissioner, ask this Court to reverse a February 19, 1993, order of the Circuit Court of Mingo County in which that court ruled in favor of the appellee taxpayers in their appeal of property tax assessments.

The dispute in this case centers around the 1992 assessments of several natural resources properties. These assessments were made in accordance with a plan for property revaluation set forth in West Virginia Code § 11-1C-1 et seq. (1991). The state tax commissioner valued the subject properties pursuant to the legislative directives found in W.Va.Code § 11-1C-10. The assessor applied an assessment rate of 44% of true and actual value, and provided a public notice of percentage increases over last year's assessments, as required by W.Va.Code § 11-3-2a. The following Class II-0 legal advertisement appeared in the Williamson Daily News on January 15, 1992, and January 22, 1992:

LEGAL ADVERTISEMENT

In accordance with the W.Va. Code 11-3-2a the following increases in assessed valuations will be effective for the 1992 Tax Year for real estate:

Class 2 51.61 percent

Class 3 18.23 percent

Class 4 41.09 percent

Taxpayers have the opportunity to review and protest the values placed on the land rolls during the Board of Equalization meetings held in February.

Joey Kohari,

Mingo County Assessor

1:15.22

Through counsel, the appellee taxpayers met with the deputy assessor in February, 1992, to inquire about lowering their assessments. Thereafter, on February 19, 1992, the taxpayers appeared before the Mingo County Commission, sitting as the Board of Equalization and Review. At this time, they protested the final assessments of their Class 3 and 4 properties to the extent that these assessments exceeded the increase set out in the assessor's January legal ads. However, counsel for the taxpayers acknowledged that prior to this February 19, 1992, hearing, they had already received actual notice of the final assessment reported by the assessor.

The Board of Equalization and Review refused to grant the taxpayers' relief. On March 27, 1992, the taxpayers filed petitions for writs of certiorari and appeal with the Circuit Court of Mingo County, pursuant to W.Va.Code §§ 11-1A-18, 11-1B-14, and 53-3-1. The taxpayers sought review of the Board's denial of their protests, arguing that (1) they had not received adequate notice of the final evaluation and assessment of their properties, and (2) the assessments were erroneous and excessive.

On April 23, 1992, the state tax commissioner filed a motion to dismiss, arguing that the taxpayers failed to file the record from the hearing before the county board with their appeals, as required by W.Va.Code §§ 11-3-25 and 58-3-4. In a subsequent pleading filed pursuant to the circuit court's request for further briefs, the commissioner argued that the taxpayers had used an invalid statutory appeal route, in that they prayed for writs of certiorari based on W.Va.Code §§ 11-1A-18 and 11-1B-14, and that these provisions are not applicable to the current revaluation of property, as the legislature indicated in W.Va.Code § 11-1C-1(b). For this reason, the commissioner maintained that the circuit court did not possess subject matter jurisdiction.

The county commission intervened in October, 1992, and argued that the assessor's notice was statutorily sufficient, but that if there was any defect, it was waived or cured by the taxpayers' February 19, 1992, appearance before Board of Equalization and Review.

On February 19, 1993, the circuit court ruled for the taxpayers. The lower court sustained the taxpayers' notice argument and ordered relief based on the variance between the increased percentages found in the notice and those which were actually applied to the taxpayers. As a result, Mingo County must either refund or credit to the taxpayers approximately $170,441.02. The appellants now appeal and ask this Court to reverse the February 19, 1993, decision of the Circuit Court of Mingo County. For the reasons discussed below, we set aside the lower court order.

First, the appellants argue that the circuit court erred when it found that certain property was incorrectly assessed based on the assessor's notice that was given pursuant to W.Va.Code § 11-3-24. The appellants contend that the taxpayers appearance before the Mingo County Board of Equalization and Review cured any defect that may have existed in the notice, because the taxpayers had an opportunity to present their arguments to the Board. We agree with the position advanced by the appellants.

"[West Virginia] Code, 11-3-24, provides for two types of notice requirements: newspaper publication for general increases affecting a given class of property owners and personal notice for increases involving individual property owners." Syl. pt. 5, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983). In this instance, the taxpayers concede that the notice itself was proper, but they dispute its content. However, as we noted above, the taxpayers admitted that they were informed of the actual assessments that were applicable to their properties prior to their appearance before the Board. Thus, the taxpayers had ample opportunity to argue against the final assessments before the Board of Equalization and Review. In In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691, 697 (1983), this Court recognized that a notice that is defective as to either date or content may be cured by the taxpayer's appearance before the board. "Even though W.Va.Code, 11-3-24, provides for newspaper publication where a general increase in property valuations is proposed by the Board, defective newspaper publication can be cured by adequate notice by mail or by the appearance of the affected taxpayer at a protest hearing." Syl. pt. 6, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983). Consequently, we find no prejudicial error with respect to the notice that was published in this instance.

Next, the appellants argue that the taxpayers incorrectly appealed from the board's decision to the circuit court pursuant to W.Va.Code §§ 11-1A-1 and 11-1B-1, rather than by the normal route found in § 11-3-25. The appellants also maintain that the taxpayers failed to comply with mandatory jurisdictional appeal requirements, and that the circuit court should have rejected their appeals for this reason. We agree.

As we initially indicated, the property assessments at issue in this case were made pursuant to a legislative decision to implement an ongoing...