| Lisa A. Hopkins, Esq. West Virginia State Auditor's Office Charleston, West Virginia Attorneys for Appellant |
O. Gay Elmore, Esq. Elmore & Elmore Charleston, West Virginia Attorneys for Appellee |
The Opinion of the Court was delivered PER CURIAM.
1. The
standard of appellate review of a circuit court's order granting relief through
the extraordinary writ of mandamus is de novo. Syl. pt. 1, Staten
v. Dean, 195 W. Va. 57, 464 S.E.2d 576 (1995).
2. A
writ of mandamus will not issue unless three elements coexist--(1) a
clear legal right in the petitioner to the relief sought; (2) a legal duty
on the part of respondent to do the thing which the petitioner seeks to compel;
and (3) the absence of another adequate remedy. Syl. pt. 1, State
ex rel. Billy Ray C. v. Skaff, 190 W. Va. 504, 438 S.E.2d 847 (1993) (citations
omitted).
3. 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).
4. If the language of an enactment is clear and within the constitutional authority of the law-making body which passed it, courts must read the relevant law according to its unvarnished meaning, without any judicial embroidery . . . . Syl. pt. 3, in part, West Virginia Health Care Cost Review Auth. v. Boone Mem'l Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996).
Per Curiam:
Appellant, a Deputy Commissioner
of Delinquent and Nonentered Lands, appointed by the authority of the West
Virginia State Auditor, appeals the lower court's grant of mandamus in favor
of appellee Lexington Land Company, LLC (Lexington). Lexington
had purchased several properties at a sale conducted by the Deputy Commissioner,
but later learned that the properties were nonexistent or erroneously assessed.
Lexington sought a refund of the purchase money paid for these properties,
but was unsuccessful until the lower court granted a writ of mandamus commanding
the Deputy Commissioner to effect a refund for Lexington. Because we agree
with the lower court under the limited facts of this case, we affirm.
Appellee Lexington Land,
LLC, is a West Virginia limited liability company with one member, Mr. O.
Gay Elmore, Jr.
(See footnote 1) On January 4, 2000, on behalf of Lexington,
Mr. Elmore purchased several properties from Deputy Commissioner of Delinquent
and Nonentered Lands Robert P. Howell. The record indicates that Lexington
paid approximately $2,000 for these nine properties. On February 22, 2000,
the sales were submitted to the Auditor's office for approval, and on March
6, 2000, the Auditor approved the sales. Appellant Howell issued deeds to
the properties on June 13, 2000. Appellee recorded the deeds no later than
July 24, 2000.
The parties dispute what
happened next. Appellant Howell claims that sometime after Mr. Elmore recorded
the deeds to the properties, Mr. Elmore contacted the Assessor's office contesting
the assessed value of some or all of the properties. Mr. Elmore acknowledges contacting the Assessor's office, however, Mr. Elmore attributes
the meetings to a concern about the existence of the properties, not the value.
Although Lexington purchased
all nine properties on the same day, apparently Mr. Elmore did not discover
the problems with these properties all at once. Mr. Elmore filed a so-called
Certificate of Attorney-at-Law for several of the properties,
notifying Deputy Commissioner Howell that each property was either the
subject of an erroneous assessment, or is otherwise nonexistent.
(See footnote 2)
In response, appellant, along with the State Auditor's office, informed
Mr. Elmore that a refund could not be obtained after a deed to a property
was issued.
Mr. Elmore then contacted
the Kanawha County Sheriff's Office and inquired about obtaining a refund.
The Sheriff responded in a letter dated December 4, 2000, that because a deed
had already been recorded for each property, it is the Sheriff's position
that West Virginia Code § 11A-3-53 had no further application and there
is nothing the Sheriff can do to resolve your problem.
Unable to find satisfaction
in any other manner, on January 3, 2001, Mr. Elmore filed a Petition for a Writ
of Mandamus against both the Sheriff and the County Clerk of Kanawha County
seeking reimbursement for the money spent on the contested properties. The trial
court issued a Rule to Show Cause and scheduled a hearing for January 25, 2001.
At the hearing, the Sheriff and County Clerk were dismissed from the action,
and Mr. Elmore was granted leave to amend his petition. Thereafter, on February
21, 2001, Mr. Elmore filed his amended petition, naming only Deputy Commissioner
Howell as a respondent.
On February 23, 2001, the trial court again issued a Rule to Show Cause and set a hearing for March 13, 2001. On the afternoon of March 12, 2001, the trial court sent out notice that the time of the hearing would be changed from 10:30 a.m. to 8:00 a.m. due to a conflict the judge had because of a jury trial then in progress. Counsel representing appellant at that time claims she never received the notice and only learned of the time change from other counsel. Thereafter, appellant's counsel informed the court she would be unable to attend the hearing at the newly scheduled time and asked that it be reset. However, the court went ahead with the hearing as rescheduled. Following the hearing, both parties submitted Memoranda of Law supporting their positions. Subsequently, on May 3, 2001, the trial court issued an order granting Mr. Elmore a Writ of Mandamus commanding appellant to refund Mr. Elmore's money. Appellant now contests the order issued by the trial court.
Because we find that W. Va. Code § 11A-3-53 (1999), at the time in
question, did not include a time period for which a request for a refund of
the purchase price must be made, we affirm.
Syl. pt. 1, State ex rel. Billy Ray C. v. Skaff, 190 W. Va. 504,
438 S.E.2d 847 (1993) (citations omitted); accord, Rollyson v. Jordan,
205 W. Va. 368, 518 S.E.2d 372 (1999). Finally, we note that: 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).
Before examining the specific
statute at issue in this case, a brief overview of the tax sale
process is in order. The Legislature set forth the general procedures governing
the sale of property to recover delinquent taxes in W. Va. Code § 11A-3-1,
et seq. This section of the Code has three main parts, the first dealing
with a sheriff's duties and authority, the second with those of the Auditor,
and the third covering several miscellaneous provisions. See Mingo County
Redevelopment Authority v. Green, 207 W. Va. 486, 534 S.E.2d 40 (2000),
for a more thorough explanation of this process.
The instant case concerns the Deputy Commissioner's sale, so we make only brief mention of the procedure for the sheriff's sale. Pursuant to W. Va. Code § 11A-3-2 (2000), a sheriff must determine which taxpayers are delinquent in paying property tax and then must publish that list, and mail a notice of delinquency to certain parties. Specifically, the sheriff must mail notice to the record owners of the property, any lienholder of record, and any other parties with an interest in the property who have notified the sheriff of their interest by returning a specific form to the sheriff. (See footnote 3) After a prescribed period of time, the sheriff then conducts an auction. Delinquent taxpayers may redeem a property at any time before the auction, and for a certain period of time after a sale. If there is not a sale of the property at the sheriff's auction, then the fate of the property falls to the Auditor.
The Code explains the Auditor's
duties and authority in this process:
The state auditor shall ex officio be state commissioner of delinquent and nonentered
lands. The term auditor whenever used in this chapter in connection
with delinquent, nonentered, escheated or waste and unappropriated lands, shall
be construed to refer to the auditor in his capacity as state commissioner of
delinquent and nonentered lands.
The auditor is empowered, and it shall be his duty,
through the land department in his office, to administer and carry into execution
the laws with reference to such lands. The auditor on behalf of the state
shall have power to hold and manage such lands, and to exercise all other
powers incident to the powers and duties conferred upon him by this article.
W. Va. Code § 11A-3-33 (1994). As we explained in Green: The
Code requires the Auditor to create a list of all such properties and to submit
a copy of this list to the county clerk of each county. In so doing, the Auditor
'certifies' this list to deputy commissioners in preparation for sale. W.
Va. Code § 11A-3-44 (1994). The Code requires the deputy land commissioner
to sell the properties on the list at auction.
(See footnote 4) Mingo County Redevelopment
Authority v. Green, 207 W. Va. 486, 494, 534 S.E.2d 40, 48 (2000). After
the sale, the Auditor has the opportunity to reject it if he determines that
the sale is not in the best interest of the state; otherwise, he will approve the sale. W. Va.
Code § 11A-3-51 (1995). After the sale is approved, a buyer has an obligation
to provide notice to those with an interest in the property.
(See footnote 5) As we noted in Green:
The point at which a party has the obligation to mail or deliver personal
notice occurs after the deputy land commissioner's sale. Even after a sale,
the original owner still has an opportunity to redeem the property by paying
the taxes. Once someone has purchased a property at that sale, the new purchaser
has an obligation to identify those parties entitled to redeem the property
before that new purchaser can receive a deed to the property.
Mingo County Redevelopment Authority v. Green, 207 W. Va. 486, 494,
534 S.E.2d 40, 48 (2000). After the purchaser prepares the list required by
statute, the deputy land commissioner mails notice to those on the list. If
no one redeems the property before the deadline given in the notice, the Deputy
Commissioner will convey a deed to the new purchaser. See, W. Va. Code
§ 11A-3-59 (1995). The parties do not challenge the sale of the properties in question based on a failure to follow any of the procedures
described above; rather, appellee argues he was due a refund because of W.
Va. Code § 11A-3-53 (1994).
The cynosure of this case
is the lower court's interpretation of the statute that governs when a party
may receive a refund when it is discovered that property purchased at a Deputy
Commissioner's sale is nonexistent or erroneously assessed. At the time of
the events in question, that statute read as follows:
If, after payment of the amount bid at a deputy commissioner's sale, the purchaser
discovers that the property purchased at such sale is the subject of an erroneous
assessment or is otherwise nonexistent, such purchaser shall submit the certificate
of an attorney-at-law that the property is the subject of an erroneous assessment
or is otherwise nonexistent. Upon receipt thereof, the deputy commissioner
shall cause the moneys so paid to be refunded. Upon refund, the deputy commissioner
shall inform the assessor of the erroneous assessment for the purpose of having
the assessor correct said error.
W. Va. Code § 11A-3-53 (1994). Essentially, appellee Lexington argues that this Code section contains no time limit for the submission of the certificate, and that once a certificate is submitted, the Deputy Commissioner has no choice but to cause the moneys so paid to be refunded. Appellant argues that the lower court was wrong to grant the writ of mandamus because the vagueness of the statute leaves the appellee with no clear legal duty, and the appellee with no clear legal right. (See footnote 6) As we have often stated:
A writ of mandamus will not issue unless three elements coexist--(1) a clear
legal right in the petitioner to the relief sought; (2) a legal duty on the
part of respondent to do the thing which the petitioner seeks to compel; and
(3) the absence of another adequate remedy.
Syl. pt. 1, State ex rel. Billy Ray C. v. Skaff, 190 W. Va. 504,
438 S.E.2d 847 (1993) (citations omitted).
Appellant argues that the
Legislature did not define the terms erroneous assessment, non-existent,
or certificate of attorney-at-law. Nor did the Legislature expressly
grant the Deputy Commissioner the authority to command the Sheriff to refund
the purchase price of a flawed sale. Because the Legislature was silent on
these issues, argues appellant, the court should have accepted the views of
affected governmental agencies as to what W. Va. Code § 11A-3-53 (1994)
really means.
Appellant also argues that,
when one views the tax-sale process as a whole, the Legislature's decision
to use the phrase: If, after payment of the amount bid at a deputy commissioner's
sale, the purchaser discovers suggests that the Legislature was tacitly specifying a time period for asking for a refund. Appellants suggests that
the Legislature was really saying, If, after payment of the amount bid
but before the deputy commissioner issues a deed . . . such purchaser
shall submit a certificate . . . .
We have repeatedly held
that when the words of a statute are clear, we are to apply the meaning provided
by the Legislature and not substitute our own, or that suggested to us by
a party: If the language of an enactment is clear and within the constitutional
authority of the law-making body which passed it, courts must read the relevant
law according to its unvarnished meaning, without any judicial embroidery
.
. . . Syl. pt. 3, in part, West Virginia Health Care Cost Review
Auth. v. Boone Mem'l Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996). Accord,
syl. pt. 1, Nicholas Loan & Mortgage, Inc. v. W. Va. Coal Co-Op, Inc.,
209 W. Va. 296, 547 S.E.2d 234 (2001); State ex rel. Charles Town General
Hosp. v. Sanders, 210 W. Va. 118, 556 S.E.2d 85 (2001).
Before taking out our judicial
needle, we again note the language of the statute in effect at
the time Lexington bought the properties. The statute says simply, if
the purchaser discovers that
the property purchased at such sale is the subject of an erroneous assessment
or is otherwise nonexistent, such purchaser shall submit the certificate of
an attorney-at-law that the property is the subject of an erroneous assessment
or is otherwise nonexistent. Upon receipt thereof, the deputy commissioner
shall cause the moneys so paid to be refunded.
W. Va. Code § 11A-3-53 (1994) (emphasis added).
We agree with appellee that
the law presumes that the attorney submitting the certificate will not do
so frivolously or fraudulently, because to do so would expose the attorney
to a host of professional sanctions and possible criminal prosecution. But
beyond that threshold presumption that an affected party would not act fraudulently,
we believe the lower court was correct to take the Legislature at its word,
however brief or curt.
We find some guidance in
the fact that in 2001, the Legislature subsequently changed the statute at
issue. The statute now reads:
If, within forty-five days following the approval of the sale by the auditor,
the purchaser discovers that the property purchased at the sale is nonexistent,
the purchaser shall submit the abstract or certificate of an attorney-at-law
that the property is nonexistent. Upon receipt of the abstract or certificate,
the deputy commissioner shall cause the moneys so paid to be refunded. Upon
refund of the amount bid at a deputy commissioner's sale, the deputy commissioner
shall inform the assessor that the property does not exist for the purpose
of having the assessor correct the error. For failure to meet this requirement,
the purchaser shall lose all benefits of his purchase.
W. Va. Code § 11A-3-53 (2001). The presence of this time limit in the new version throws in to sharp relief the absence of any time limit in the old version. Though we make no ruling in this regard, we suspect that were appellee facing the new version of the statute, appellant would prevail. However, that is not the case.
In short, appellee faced no
statutorily imposed time limit for the filing of the certificate
that notified the Deputy Commissioner of a problem with the sale. We do believe
that the law presumes a reasonable time period for one similarly situated to
appellee to take such action, but we do not feel that the period of months that
elapsed in the instant case amounted to unreasonable delay. As appellee points
out, in an earlier case we ruled that, while laches will at some point bar a
suit over a tax sale, a delay of eight months was not long enough to bar a suit.
Implicit in this case is the issue of whether suits to set aside delinquent
land tax deeds can be time barred. We note that there do not appear to be many
cases decided subsequent to Mennonite that discuss this issue. The Third
Circuit Court of Appeals in Benoit v. Panthaky, 780 F.2d 336 (3d Cir.1985),
assumed without deciding that laches might apply, but held under the facts of
the case that it was not applicable. A similar conclusion was reached by the
Indiana Court of Appeals in Fields v. Evans, 484 N.E.2d 36 (Ind.App.1985).
We have utilized the doctrine of laches or equitable estoppel to bar relief
in prior land tax cases. See, e.g., Thaxton v. Beard, 157 W. Va. 381,
201 S.E.2d 298 (1973) (estoppel applied in case of erroneous assessment); Work
v. Rogerson, 152 W. Va. 169, 160 S.E.2d 159 (1968) (laches in delinquent
tax deed).
This suit was filed only eight months after delivery
of the deputy commissioner's deed. There was no intervening disposition of
the property by Mr. Jackson nor any capital improvements thereon. Furthermore,
the record does not reveal any inequitable conduct by the plaintiff that would
operate as a bar. We, therefore, conclude that the suit was timely.
Anderson v. Jackson, 180 W. Va. 194, 196, 375 S.E.2d 827, 828-29
(1988) (per curiam). While our concern in Anderson was for the welfare
of the original owner, not the tax-sale purchaser, we, nonetheless, feel that the appellee's actions in the instant
case were not unreasonably delayed.
Having said that, we do
agree with the Deputy Commissioner that finality and predictability are of
the utmost importance to the tax-sale process:
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 Morgantown, 162 W. Va. 853, 856, 253 S.E.2d 386, 388 (1979). We
are also mindful that the government must make a timely collection of property
taxes in order to function properly.
Mingo County Redevelopment Authority v. Green, 207 W. Va. 486, 491,
534 S.E.2d 40, 45 (2000).
(See footnote 7) But we feel confident that
the concerns of the Deputy Commissioner will be addressed adequately in the
future by the application of the new statute.
In summation, appellant complied
with the dictates of the statute at the time by providing the specified certificates.
Nothing in the record suggests that these certificates were incorrect or in
any way fraudulent or unreliable. We believe that appellee had a clear legal
right to a refund, and appellant a clear legal duty to make one, under the prior
version of the statute. Accordingly, because we find that W. Va. Code §
11A-3-53 (1994), at the time in question, did not include a time period for
which a request for a refund of purchase price had to be made, we affirm the
decision of the lower court, and further order that the Sheriff of Kanawha County
honor any request made by the Deputy Commissioner for the refund of appellee's
purchase money.
For the reasons stated,
the judgment of the Circuit Court of Kanawha County is affirmed.
as of the first day of September, together with a notice of sale, in form
or effect as follows: [description of required form omitted]....
The sheriff shall publish the list and notice prior
to the sale date fixed in the notice as a Class III-0 legal advertisement
in compliance with the provisions of article three, chapter fifty-nine of
this code, and the publication area for such publication shall be the county.
(b) In addition to such publication, no less than
thirty days prior to the sale the sheriff shall send a notice of such delinquency
and the date of sale by certified mail: (1) To the last known address of each
person listed in the land books whose taxes are delinquent; (2) to each person
having a lien on real property upon which the taxes are due as disclosed by
a statement filed with the sheriff pursuant to the provisions of section three
of this article; (3) to each other person with an interest in the property
or with a fiduciary relationship to a person with an interest in the property
who has in writing delivered to the sheriff on a form prescribed by the tax
commissioner a request for such notice of delinquency; and (4) in the case
of property which includes a mineral interest but does not include an interest
in the surface other than an interest for the purpose of developing the minerals,
to each person who has in writing delivered to the sheriff, on a form prescribed
by the tax commissioner, a request for such notice which identifies the person
as an owner of an interest in the surface of real property that is included
in the boundaries of such property: . . . .
W. Va. Code § 11A-3-2 (2000).
In view of the paramount necessity of providing regular tax income for the
state, county and municipal governments, particularly for school purposes;
and in view of the further fact that delinquent land not only constitutes
a public liability, but also represents a failure on the part of delinquent
private owners to bear a fair share of the costs of government; . . . .
W. Va. Code § 11A-3-1(1994).