Tabb v. Jefferson Cnty. Comm'n, No. 16-0519

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Elizabeth D. Walker
Decision Date02 June 2017
PartiesDavid C. Tabb, Petitioner Below, Petitioner v. The Jefferson County Commission, sitting as the Board of Equalization and Review; Peter Onoszko, in his official capacity as President of the Jefferson County Commission; Jane Tabb, in her official capacity as Vice President of the Jefferson County Commission; Patsy Noland, Josh Compton, and Caleb Hudson, in their official capacities as Commissioners of the Jefferson County Commission; and Angie Banks, Assessor of Jefferson County, Respondents Below, Respondents
Docket NumberNo. 16-0519

David C. Tabb, Petitioner Below, Petitioner
v.
The Jefferson County Commission,
sitting as the Board of Equalization and Review;
Peter Onoszko, in his official capacity as President of
the Jefferson County Commission; Jane Tabb, in her official capacity as
Vice President of the Jefferson County Commission;
Patsy Noland, Josh Compton, and Caleb Hudson,
in their official capacities as Commissioners of the Jefferson County
Commission; and Angie Banks, Assessor of Jefferson County, Respondents Below, Respondents

No. 16-0519

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 2, 2017


(Jefferson County 15-AA-4)

MEMORANDUM DECISION

Petitioner David C. Tabb, pro se, appeals two orders of the Circuit Court of Jefferson County. In the first order, entered on July 21, 2015, the circuit court dismissed petitioner's appeal of the assessment of his real property for the 2015 tax year. In the second order, entered on May 6, 2016, the circuit court denied petitioner's motion to alter or amend its July 21, 2015, dismissal order. Respondents Jefferson County Commission, sitting as the board of equalization and review; Peter Onoszko, in his official capacity as President of the Jefferson County Commission; Jane Tabb, in her official capacity as Vice President of the Jefferson County Commission; and Patsy Noland, Josh Compton, and Caleb Hudson, in their official capacities as Commissioners of the Jefferson County Commission; and Angie Banks, Assessor of Jefferson County (collectively, "County Commission"); by counsel Nathan P. Cochran, filed a response in support of the circuit court's orders.1 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 affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

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Petitioner lives and owns real property in Jefferson County, West Virginia. By order dated February 20, 2015, the County Commission upheld the assessment of petitioner's real property for the 2015 tax year. Petitioner filed an appeal of the County Commission's February 20, 2015, order pursuant to West Virginia Code §§ 11-3-24 and 11-3-25 on March 18, 2015.

However, as petitioner concedes, he failed to properly serve his appeal on the County Commission in accordance with Rule 4(d)(1)(D) of the West Virginia Rules of Civil Procedure, which provides that "[p]ersonal or substituted service shall be made in the following manner: . . . (D) The clerk sending a copy of the summons and complaint to the individual to be served by certified mail, return receipt requested, and delivery restricted to the addressee[.]" Rather than having the circuit clerk mail the County Commission a copy of the complaint, petitioner mailed the County Commission a copy of the complaint himself. Also, instead of filing his appeal with a civil case information sheet ("CCIS") as required by Rule 3(b), he attached a docketing statement in the form required by the Rules of Procedure for Administrative Appeals, which do not apply in appeals from county agencies.2

The County Commission filed a motion to dismiss petitioner's appeal on April 8, 2015, based on petitioner's failure to satisfy those procedural requirements which the Commission described as jurisdictional and mandatory. Petitioner filed a response to the motion on April 20, 2015, and a supplemental response on April 27, 2015. The circuit court held a hearing on June 22, 2015. Following that hearing, the circuit court reserved a ruling and scheduled another hearing for July 20, 2015. However, the circuit court also stated that it "will issue a ruling in the future" regarding whether to dismiss the defective appeal. On July 15, 2015, the County Commission filed a motion to continue the July 20, 2015, hearing on the ground that the circuit court should proceed to rule as to whether the procedural defects required the dismissal of petitioner's appeal. The circuit court continued the July 20, 2015, hearing and then dismissed petitioner's appeal of the County Commission's order upholding the 2015 tax assessment on his property on July 21, 2015, finding that "there is no jurisdiction . . . over the [County Commission] until proper service is made."

Following the dismissal of his appeal, petitioner filed a motion to alter or amend the July 21, 2015, order pursuant to Rule 59(e) of the Rules of Civil Procedure and a motion to disqualify the circuit court judge. The circuit court did not rule on the motion for disqualification, but denied petitioner's motion to alter or amend the judgment on December 7, 2015. However, by an order entered on January 6, 2016, the Honorable David H. Sanders voluntarily recused himself from presiding in this case because he voluntarily recused himself from another case involving the same parties. Judge Sanders explained that he did not rule on petitioner's motion for disqualification in

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the instant case because it was "untimely" filed, but found that he should disqualify himself to avoid an appearance of impropriety "against the backdrop of this [other] case."

The Honorable Michael D. Lorensen was assigned to preside in this case. By order on March 21, 2016, Judge Lorensen vacated the December 7, 2015, order denying petitioner's motion to alter or amend the judgment, and ordered the County Commission to file a response to the motion and ordered that petitioner may file a reply to the response.3 Petitioner responded to the March 21, 2016, order by filing a motion for Judge Lorensen's disqualification.4 By order entered on April 19, 2016, the Chief Justice of this Court denied petitioner's motion and directed that Judge Lorensen to "continue to preside" in this case.

By an order entered on May 6, 2016, Judge Lorensen denied petitioner's motion to alter or amend the July 21, 2015, dismissal order. In his order, Judge Lorensen addressed whether the 120-day period in which petitioner had to properly serve his appeal on the County Commission should be extended pursuant to Rule 4(k). Judge Lorensen found that good cause did not exist under Rule 4(k) to extend the period in which petitioner had to attempt to perfect service of his appeal.

Petitioner now appeals the circuit court's July 21, 2015, order dismissing petitioner's appeal of the County Commissioner's order upholding the 2015 tax assessment on his property and its May 6, 2016, order denying his motion to alter or amend the judgment. "Appellate review of a circuit court's order granting a motion to dismiss an appeal from a decision of a county commission is de novo." Syl. Pt. 1, Lipscomb v. Tucker County Comm'n, 197 W.Va. 84, 475 S.E.2d 84 (1996) We need not independently review the May 6, 2016, order. See Syl. Pt. 1, Wickland v. Am. Travellers Life In. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998) (holding that "[t]he standard of review applicable...

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