Tabb v. Jefferson Cnty. Comm'n, 17-0095

• Court: Supreme Court of West Virginia
• Decision Date: 23 March 2018
• Docket Number: No. 17-0095,17-0095
• Parties: David C. Tabb, Plaintiff Below, Petitioner v. Jefferson County Commission, sitting as the Board of Equalization and Review; Jane Tabb, in her official capacity; Patsy Noland, in her official capacity; Josh Compton, in his official capacity; Caleb Hudson, in his official capacity, et al. Defendants Below, Respondents

David C. Tabb, Plaintiff Below, Petitioner
v.
Jefferson County Commission,
sitting as the Board of Equalization and Review;
Jane Tabb, in her official capacity; Patsy Noland, in her official capacity;
Josh Compton, in his official capacity;
Caleb Hudson, in his official capacity, et al. Defendants Below, Respondents

No. 17-0095

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 23, 2018

(Jefferson County CC-19-2016-AA-2)

MEMORANDUM DECISION

Petitioner David C. Tabb, pro se, appeals four orders of the Circuit Court of Jefferson County. In the first order, entered April 20, 2016, the circuit court denied petitioner's appeal of the assessments of his real property for the 2016 tax year. In the second and third orders, both entered December 30, 2016, the circuit court denied petitioner's motion to amend his appeal of the 2016 tax assessments and his motion to alter or amend the court's April 20, 2016, order denying that appeal. In the fourth order, entered December 30, 2016, the circuit court granted respondents' motion for sanctions by limiting petitioner's right to initiate a legal proceeding to those instances where petitioner gives advance notice to the prospective opposing parties and obtains the court's approval for the proceeding or initiates the proceeding through a West Virginia attorney who certifies, pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, that the proceeding is neither frivolous nor meant to harass. Respondents Jefferson County Commission, sitting as the Board of Equalization and Review; Jane Tabb, in her official capacity; Patsy Noland, in her official capacity; Josh Compton, in his official capacity; Caleb Hudson, in his official capacity, et al. (collectively "the county commission"), by counsel Nathan P. Cochran, filed a response.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

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reasons, a memorandum decision affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner lives and owns real property in Jefferson County, West Virginia. For the 2016 tax year, the Assessor of Jefferson County assessed values for three parcels owned by petitioner: $76,200 for parcel 1 on Map 2, $289,000 for parcel 8 on Map 10, and $44,000 for parcel 8.4 on Map 10. Petitioner appealed these assessments to the county commission. However, at a February 16, 2016, hearing before the county commission, petitioner failed to present any evidence supporting a reduction in the assessments. Rather than presenting his evidence, petitioner requested that all members of the county commission recuse themselves from hearing his appeal because of ongoing litigation between petitioner and the commission. One commissioner was absent, and one commissioner recused herself. But, the other three commissioners denied petitioner's motion for their recusal. As a result, petitioner informed the county commission that he would be "wasting" his time if he presented his evidence and walked out of the hearing. Thereafter, the three county commissioners who did not recuse themselves voted to uphold the three assessments given petitioner's failure to present any evidence that the assessments were wrong.

On March 16, 2016, petitioner appealed the county commission's decision upholding the assessments. Attached to the appeal were certified copies of the orders entered by the county commission with regard to the three parcels. The certified record did not include documents petitioner left with the county commission's secretary during the hearing given that they were never admitted into evidence because petitioner did not request their admission before walking out of the hearing. Accordingly, in an April 20, 2016, order denying petitioner's appeal, the circuit court found that it legally could not rule in petitioner's favor because the record was devoid of any evidence that the assessments were wrong.

On April 26, 2016, the county commission filed a motion for sanctions against petitioner. The county commission invoked both Rule 11 of the West Virginia Rules of Civil Procedure and the circuit court's inherent power to ask that the court limit petitioner's right as a pro se litigant to initiate any "new actions or appeals in any court, other tribunal, commission, or administrative agency." In its motion, the county commission alleged that petitioner had a pattern of engaging in serious litigation misconduct over the course of seven proceedings since 2009. Petitioner subsequently filed a response to the motion for sanctions on May 9, 2016. The county commission filed a reply to the response on May 24, 2016.

On April 27, 2016, petitioner filed a motion to alter or amend the April 20, 2016, order denying his appeal. Finally, on June 30, 2016, petitioner filed a motion to amend his appeal to add the claim that one of the commissioners was morally unfit to hold office on February 16, 2016,² when the county commission voted to uphold the tax assessments.

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Accordingly, the circuit court entered three orders on December 30, 2016. First, the circuit court denied petitioner's motion to amend his appeal to add the claim that one of the commissioners was morally unfit to hold office. The circuit court found that the claim was time-barred pursuant to West Virginia Code § 11-3-25(a), which gives the taxpayer thirty days to appeal the county commission's decision, and that the claim did not relate back to any previous claim because it was a new allegation not based on any facts asserted in petitioner's appeal. Next, the circuit court denied the motion to alter or amend the April 20, 2016, order denying the appeal, reiterating that it legally could not rule in petitioner's favor because the record was devoid of any evidence that the tax assessments were wrong.

Finally, in its third December 30, 2016, order, the circuit court found that a sufficient basis existed, given petitioner's misconduct in this and six prior proceedings, to limit his right as a pro se litigant to initiate any "new civil or administrative actions or appeals in any court, commission, administrative body, agency[,] or other tribunal." The circuit court ordered that, before petitioner initiates a new proceeding, he must give advance notice to the prospective opposing parties and obtain the court's approval for the proceeding or initiate the proceeding through a West Virginia attorney who certifies, pursuant to Rule 11, that the proceeding is neither frivolous nor meant to harass.

Petitioner now appeals the various orders entered by the circuit court on April 20, 2016, and December 30, 2016. In syllabus point one of In re Tax Assessment of Foster Foundation's Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008), we held that circuit court orders are reviewed under the following standard:

"This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

On appeal,³ petitioner argues that the circuit court erred in denying his appeal of the tax

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assessments, in denying his motions to amend the appeal and to alter or amend judgment, and in limiting his right to proceed as a pro se litigant. The county commission counters that the circuit court's orders should be affirmed. We agree with the county commission.

We first address the denial of petitioner's motion to amend his appeal. Pursuant to Rule 15(a) of the Rules of Civil Procedure, "[l]eave to amend should be freely given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court's discretion[.]" Syl. Pt. 4, Bowyer v. Wyckoff, 238 W.Va. 446, 796 S.E.2d 233 (2017) (internal quotations and citations omitted). In this case, the circuit court found that petitioner's new claim was time-barred pursuant to West Virginia Code § 11-3-25(a), which gives the taxpayer only thirty days to appeal the county commission's decision. In Tax Assessment Against Purple Turtle, LLC v. Gooden, 223 W.Va. 755, 762, 679 S.E.2d 587, 594 (2009), we reiterated that the thirty-day deadline for filing an appeal from a decision upholding a tax assessment is a "mandatory statutory jurisdictional requirement[ ]." (footnote omitted). Based on our review of the record, we concur with the circuit court's finding that the claim set forth in the motion to amend did not relate back to any previous claim given that it was a new allegation not based on any facts asserted in petitioner's appeal. See Syl. Pt. 7, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994) (holding that an amendment will not relate back to the original pleading pursuant to Rule 15 if it is based on different facts than those previously alleged), modified on other grounds, Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997). Therefore, we conclude that the circuit court did not abuse its discretion in denying petitioner's motion to amend his appeal.

Next, we address together the denials of petitioner's appeal and his motion to alter or amend judgment. See Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998) (holding that the denial of a motion to alter or amend judgment is reviewed under the same standard as the underlying judgment). In syllabus point 5 of Foster Foundation, we held that "...