Rollyson v. Jordan, No. 25538.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice
Citation518 S.E.2d 372,205 W.Va. 368
PartiesRobert ROLLYSON, Petitioner Below, Appellee, v. John David JORDAN, Clerk of the Braxton County Commission, Respondent Below, Appellee, Jack L. Sears, Julia Ann Chapman, and Charlotte Jo Sears, Respondents Below, Appellants.
Decision Date09 July 1999
Docket NumberNo. 25538.

518 S.E.2d 372
205 W.Va.
368

Robert ROLLYSON, Petitioner Below, Appellee,
v.
John David JORDAN, Clerk of the Braxton County Commission, Respondent Below, Appellee,
Jack L. Sears, Julia Ann Chapman, and Charlotte Jo Sears, Respondents Below, Appellants

No. 25538.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1999.

Decided July 9, 1999.


518 S.E.2d 374
William D. Stover, Beckley, West Virginia, Attorney for the Appellants

William C. Martin, Cooper & Martin, Sutton, West Virginia, Attorney for the Appellee, Robert Rollyson.

Paula M. Cunningham, Prosecuting Attorney for Braxton County, Sutton, West Virginia, Attorney for the Appellee, John David Jordan.

DAVIS, Justice:

The Appellants herein, and respondents below, Jack L. Sears, Julia Ann Chapman, and Charlotte Jo Sears [hereinafter collectively referred to as "the Sears Heirs"], appeal the December 3, 1997, order of the Circuit Court of Braxton County which granted the appellee herein, and petitioner below, Robert Rollyson [hereinafter "Rollyson"], mandamus relief, and the February 9, 1998, order of the Braxton County Circuit Court which denied the Sears Heirs' motion to alter or amend the court's earlier order. The court's December 3, 1997, order directed the appellee herein, and respondent below, John David Jordan, Clerk of the Braxton County Commission [hereinafter "Clerk Jordan"], to execute and deliver a deed to Rollyson for certain real estate he had purchased at a tax sale thereof.

The Sears Heirs, lienholders in the subject real estate by virtue of their one-half interest in a deed of trust note secured by the property, complain that they did not receive notice of their right to redeem and that Clerk Jordan rejected their attempted redemption, which temporally preceded the circuit court's order directing Clerk Jordan to prepare Rollyson's tax deed. On appeal to this Court, the Sears Heirs assign three errors: (1) the circuit court erred by awarding Rollyson mandamus relief under the facts and circumstances of this case; (2) the circuit court improperly upheld the tax sale by failing to enforce the Heirs' right to redeem such property and by ordering the preparation and issuance of a tax deed to Rollyson where the property's lienholders had no notice of their right to redeem; and (3) the circuit court exceeded its legitimate powers in this matter by requiring the Heirs to release their interest in the deed of trust note upon the payment in full thereof by Rollyson. As a matter of cross-appeal, Rollyson complains that the circuit court erred by denying his request for costs associated with his mandamus action.

Having reviewed the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm, in part, and reverse, in part, the decision of the Circuit Court of Braxton County.

518 S.E.2d 375
To the extent that the circuit court's order denied costs associated with Rollyson's petition for mandamus relief to obtain the issuance of a tax deed, we affirm the circuit court's decision. However, we reverse, in part, the circuit court's decision because we find that the Sears Heirs were entitled to receive notice to redeem, pursuant to W. Va. Code § 11A-3-19(a)(1) (1994) (Repl.Vol.1995) and W. Va.Code § 11A-3-23(a) (1995) (Repl.Vol.1995), and, until the period for such redemption had expired, the circuit court could not require them to accept payment in full for or to issue a release of the deed of trust note. In keeping with our decision that the Heirs were entitled to an opportunity to redeem the property securing their deed of trust note, we reverse that portion of the circuit court's order denying costs to Rollyson insofar as such costs arose from his mandamus petition seeking to compel Clerk Jordan to issue redemption notices to the Heirs. We further remand this case to the circuit court for further proceedings consistent with this opinion, which include affording the Sears Heirs an opportunity to redeem the subject property and awarding Rollyson the costs attributable to his action to compel the issuance of notices to redeem to the Heirs

I.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying this appeal are largely undisputed by the parties. On November 16, 1995, Rollyson purchased a tract of land consisting of 65.25 acres during a tax sale held by the Braxton County Sheriff.1 The property had been offered for sale as a result of the nonpayment of its real property taxes by the property's prior owner, Nix Mining Company [hereinafter "Nix"].2 Following his purchase, Rollyson filed a notice list with Clerk Jordan, as required by W. Va. Code § 11A-3-19(a)(1) (1994) (Repl.Vol.1995). This list set forth those persons who were entitled to receive notice of their right to redeem the subject property before the issuance of a tax deed declaring Rollyson to be the new owner thereof. Upon his information and belief at the time he applied for the tax deed, Rollyson reported to Clerk Jordan that the only person entitled to such notice was Nix Mining Company. After the Clerk's notice to Nix was returned as not forwardable, the Clerk asked Rollyson to notify Nix of its right to redeem by publication. Accordingly, Rollyson caused to be published a Notice to Redeem in the Braxton County Citizens' News and the Braxton Democrat-Central, Inc., newspapers for three consecutive weeks in January, 1997; the deadline for redemption of the property was designated as March 31, 1997.3

Nix failed to redeem the property or otherwise respond to the Notice to Redeem. On March 31, 1997, counsel for Rollyson discovered additional parties also possessed an interest in the subject property. Carl and Irene Sears held a deed of trust note,4 dated September 26, 1985, which was secured by the 65.25 acre tract.5 As a result of various dispositions, the holders of this deed of trust note at the time of Rollyson's discovery were Irene Sears, who held a one-half interest

518 S.E.2d 376
therein, and Jack L. Sears, Julia Ann Chapman, and Charlotte Jo Sears, who claimed that they collectively held the remaining one-half interest in the subject property.6 Counsel for Rollyson promptly notified Clerk Jordan of the existence of these lienholders, and requested guidance as to how next to proceed given the prior lack of notice to them of their right to redeem the property

Clerk Jordan, apparently having obtained direction from the Braxton County Prosecuting Attorney, advised Rollyson to institute a mandamus action to obtain the preparation, execution, and filing of his tax deed. Although Rollyson proposed providing these lienholders with notice of their right to redeem, Clerk Jordan refused to issue any additional notices. Therefore, on March 31, 1997, Rollyson contacted Irene Smith (fka Irene Sears) and notified her of his purchase of the 65.25 acre tract at the earlier tax sale. On June 23, 1997, Irene Sears Smith assigned her one-half interest in the deed of trust note to Rollyson in consideration of his payment of the amount due and owing on that portion of the debt, i.e., $3,795.05.

By contrast, Jack Sears, acting as the representative for the Sears Heirs, stated that he did not learn of Rollyson's tax sale purchase of the property until April, 1997, during a telephone call from Rollyson's wife. Despite Rollyson's offers, the Sears Heirs refused to relinquish their one-half interest in the deed of trust note. In late April or early May, 1997, the Sears Heirs attempted to redeem the property for the amount of the delinquent property taxes, but Clerk Jordan refused to accept their proffered redemption. A second attempt at redemption by the heirs was similarly rejected by the clerk on June 12, 1997.

On August 11, 1997, Rollyson instituted a mandamus action in the Circuit Court of Braxton County requesting the court to compel Clerk Jordan to execute a tax deed naming him as the new owner of the property. The Sears Heirs opposed this action, and hearings were held on the matter. By order entered December 3, 1997, the circuit court found, in part, that Rollyson had substantially complied with the notice provisions of W. Va.Code § 11A-3-19(a)(1); that the Sears Heirs, by virtue of their status as lienholders, were not entitled to the ownership of the property; and that Rollyson should be permitted to pay the balance due and owing on the deed of trust note held by the Sears Heirs. Thus, the circuit court ordered that

(1) Petitioner [Rollyson] shall pay the remaining balance due on the deed of trust note held by the Respondent [Sears Heirs] lienholders, if no dispute arises between the parties as to the amount due on said deed of trust note, Petitioner shall pay each Respondent their proportionate share and each shall execute a release of the deed of trust; in the event a dispute arises among the parties as to the amount due, or as to the Respondent's willingness to accept the same, then the Petitioner shall deposit with the Clerk of the Circuit Court such sum as may be calculated by him as due and owing on the deed of trust note.
(2) A writ of mandamus shall be issued against Respondent, John David Jordan, as Clerk of the County Commission, and the said Clerk shall, once Petitioner has complied with paragraph (1) herein, execute and deliver unto Petitioner a free and clear deed conveying the property in question to Petitioner.
(3) Petitioner shall pay unto the County Clerk such sums as may be required to record said deed.
It is the judgment of the Court that the relief prayed for in the Petition for Writ of Mandamas [sic] shall be awarded to the Petitioner; that the Petitioner is denied his costs herein; and that Respondents [sic] relief for dismissal of this action and redemption of the property, is also denied....

518 S.E.2d 377
The Sears Heirs subsequently moved to alter or amend the order7 granting Rollyson's request for mandamus relief. The circuit court, by order entered February 9, 1998, denied the Heirs their...

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24 practice notes
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed." Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or in other words: "We grant trial c......
  • Jones v. West Virginia State Bd. of Educ., No. 31785.
    • United States
    • Supreme Court of West Virginia
    • August 8, 2005
    ...writ of mandamus is de novo." Syl. pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1, Rollyson v. Jordan, 205 W.Va. 368, 518 S.E.2d 372 (1999). "The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibit......
  • State ex rel. McGraw v. Combs Services, No. 26196.
    • United States
    • Supreme Court of West Virginia
    • December 10, 1999
    ...108, 219 S.E.2d 361 (1975)." Syllabus point 3, Boley v. Miller, 187 W.Va. 242, 418 S.E.2d 352 (1992). Syl. pt. 3, Rollyson v. Jordan, 205 W.Va. 368, 518 S.E.2d 372 (1999). See also Syl. pt. 4, in part, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997) ("......
  • Jones v. West Virginia State Board of Education, No. 31785 (WV 7/6/2005), No. 31785
    • United States
    • Supreme Court of West Virginia
    • July 6, 2005
    ...writ of mandamus is de novo." Syl. pt. 1, Staten v. Dean, 195 W. Va. 57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1, Rollyson v. Jordan, 205 W. Va. 368, 518 S.E.2d 372 (1999). "The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohib......
  • Request a trial to view additional results
24 cases
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed." Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or in other words: "We grant trial c......
  • Jones v. West Virginia State Bd. of Educ., No. 31785.
    • United States
    • Supreme Court of West Virginia
    • August 8, 2005
    ...writ of mandamus is de novo." Syl. pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1, Rollyson v. Jordan, 205 W.Va. 368, 518 S.E.2d 372 (1999). "The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibit......
  • State ex rel. McGraw v. Combs Services, No. 26196.
    • United States
    • Supreme Court of West Virginia
    • December 10, 1999
    ...108, 219 S.E.2d 361 (1975)." Syllabus point 3, Boley v. Miller, 187 W.Va. 242, 418 S.E.2d 352 (1992). Syl. pt. 3, Rollyson v. Jordan, 205 W.Va. 368, 518 S.E.2d 372 (1999). See also Syl. pt. 4, in part, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997) ("......
  • Jones v. West Virginia State Board of Education, No. 31785 (WV 7/6/2005), No. 31785
    • United States
    • Supreme Court of West Virginia
    • July 6, 2005
    ...writ of mandamus is de novo." Syl. pt. 1, Staten v. Dean, 195 W. Va. 57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1, Rollyson v. Jordan, 205 W. Va. 368, 518 S.E.2d 372 (1999). "The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohib......
  • Request a trial to view additional results

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