Julian S. Archuleta v. US Liens, LLC , 813 S.E.2d 761 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
_____________
FILED
No. 17-0528
April 26, 2018
released at 3:00 p.m.
_____________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JULIAN S. ARCHULETA,
Defendant Below, Petitioner
V.
US LIENS, LLC,
Plaintiff Below, Respondent
____________________________________________________________________
Appeal from the Circuit Court of Berkeley County
Honorable Christopher C. Wilkes, Judge
Civil Action No. 15-C-407
REVERSED AND REMANDED
____________________________________________________________________
Submitted: April 10, 2018
Filed: April 26, 2018
Tammy M. McWilliams Christopher P. Stroech
Trump & Trump Arnold & Bailey
Martinsburg, West Virginia Charles Town, West Virginia
Attorney for Petitioner Attorney for Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Noncompliance with the mandatory requirements of W. Va.
Code § 11A-3-19 (2010) (Repl. Vol. 2017) is a jurisdictional defect not subject to curative
measures.
2. West Virginia Code § 11A-3-19 (2010) (Repl. Vol. 2017) provides that
a property owner must be served notice of the right to redeem property as outlined under
W. Va. Code § 11A-3-22 (2013) (Repl. Vol. 2017), and that failure to provide notice in the
manner required will result in the tax purchaser of the property losing all benefits of the
purchase.
3. West Virginia Code § 11A-3-22(d) (2013) (Repl. Vol. 2017) provides
that, in order to comply with the redemption notice requirements for Class II property, in
addition to other notice requirements set forth in W. Va. Code § 11A-3-22, notice must also
be addressed to “Occupant” and mailed to the property.
i
Davis, Justice:
This is an appeal by Petitioner, Julian S. Archuleta (defendant below), from a
summary judgment order of the Circuit Court of Berkeley County. The circuit court’s order
vested title to Petitioner’s home to the Respondent, US Liens, LLC (plaintiff below). In this
appeal, the Petitioner contends that she was entitled to summary judgment because there was
no material issue of fact in dispute regarding the Respondent’s failure to comply with all of
the requirements for providing her notice of the right to redeem her home. After a careful
review of the briefs, the appendix record, and listening to the oral arguments of the parties,
we reverse.
I.
FACTUAL AND PROCEDURAL HISTORY
The record indicates that the Petitioner, who is in her seventies, and her father
purchased a home in Martinsburg, West Virginia, in 1994. The home was subject to a
mortgage. It appears that the lender required the Petitioner and her father to make monthly
payments for property taxes into an escrow account for the life of the loan. The lender was
ultimately responsible for paying property taxes from the escrow account. The Petitioner’s
father died in 2003, after which title to the property vested in Petitioner by right of
survivorship. The mortgage was satisfied in 2012. Once the loan was satisfied the lender
was no longer responsible for paying property taxes.
1
After the termination of the tax escrow account, the Petitioner failed to pay her
property taxes for the year 2012. As a result of the 2012 taxes not having been paid, the
Sheriff of Berkeley County held an auction on November 19, 2013, to sell the tax lien on the
Petitioner’s home. The Respondent purchased the tax lien on the property at the auction. It
appears that during the first few months of 2015, the Respondent, through the West Virginia
State Auditor, unsuccessfully attempted to have the Petitioner notified,1 by mail2 and
newspaper publications,3 of her right to redeem the property. On April 1, 2015, a deed to
the property was conveyed to the Respondent by a State Auditor appointee. Thereafter, on
July 23, 2015, the Respondent filed the instant proceeding in circuit court to quiet title to the
property.4
1
See Syl. pt. 1, in part, Wells Fargo Bank, N.A. v. UP Ventures II, LLC, 223
W. Va. 407, 675 S.E.2d 883 (2009) (“Under W. Va. Code, 11A-3-19(a), a tax sale purchaser
is required to provide notice to parties who are of record at any time after the thirty-first day
of October of the year following the sheriff’s sale, and on or before the thirty-first day of
December of the same year.”).
2
The mail was returned “unclaimed.”
3
The Respondent claims that he also attempted personal service on Petitioner.
The circuit court’s summary judgment order did not indicate that personal service was
attempted.
4
“In West Virginia, a suit to quiet the title to a tax deed is authorized by W. Va.
Code, 11A-3-62(b).” MZRP, LLC v. Huntington Realty Corp., No. 35692, 2011 WL
12455342, at *2 (W. Va. Mar. 10, 2011) (Memorandum Decision).
2
The Petitioner filed an answer and counterclaim to the petition to quiet title.5
In her response, the Petitioner asserted that in January 2015 she was hospitalized in
Arlington, Virginia.6 The hospital eventually released her to a nursing facility in Arlington.
The Petitioner was not able to return to her home in Martinsburg until April 2015. The
Petitioner further alleged that the Respondent failed to comply with all of the statutory
requirements for providing her with notice of the right to redeem her home. Specifically, the
Petitioner alleged that the Respondent failed to comply with W. Va. Code § 11A-3-22(d)
(2013) (Repl. Vol. 2017), by addressing a notice to redeem to “Occupant” and sending it by
first class mail to her home.
Both parties eventually moved for summary judgment. By order entered May
9, 2017, the circuit court granted summary judgment in favor of the Respondent. The circuit
court’s order acknowledged that the Petitioner was recovering from health problems in
Virginia during the period of time the Respondent attempted to provide her with notice to
redeem the property. However, the order held that the Petitioner’s incapacitation “does not
toll the redemption deadline.” The order also concluded that, although the notice to
“Occupant” mailing was not complied with, the Petitioner “would not have received any
5
West Virginia Code § 11A-4-4 (1994) (Repl. Vol. 2017) allows a civil action
to set aside a tax deed by a party claiming not to have received notice of the right to redeem
property.
6
The Petitioner was visiting a friend when she took ill.
3
additional notice had a . . . first class letter been delivered to her under a pseudonym.” The
circuit court ultimately concluded that the Respondent substantially complied with the
redemption notice requirements. This appeal followed.
II.
STANDARD OF REVIEW
This proceeding was brought from a summary judgment order of the circuit
court. We have held that “[a] circuit court’s entry of summary judgment is reviewed de
novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We have also
held that
[s]ummary judgment is appropriate if, from the totality of
the evidence presented, the record could not lead a rational trier
of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an
essential element of the case that it has the burden to prove.
Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). We will
apply these standards to our analysis of this appeal.
III.
DISCUSSION
The Petitioner contends that the circuit court’s summary judgment order should
be reversed, because the evidence clearly showed that the Respondent failed to have a notice
4
addressed to “Occupant,” and mailed to her home as required by W. Va. Code § 11A-3­
22(d). The Respondent concedes that it failed to comply with the “Occupant” notice
requirement. However, the Respondent argues that it provided the West Virginia State
Auditor with the address of the property, and that it was the duty of the State Auditor to send
out a notice of redemption addressed to the “Occupant” of the address given. The
Respondent further argues that it should not be held responsible for the State Auditor’s
failure to comply with W. Va. Code § 11A-3-22(d).
To start, we note that the Legislature has carved out detailed statutes that
regulate every aspect of the sale of real property for delinquent taxes and the redemption of
such property. See W. Va. Code § 11A-3-1 et seq. We have previously observed that “this
area of the law has undergone significant change in the last several years, with each change
increasing the protections afforded the delinquent land owner.” Mingo Cty. Redev. Auth. v.
Green, 207 W. Va. 486, 491, 534 S.E.2d 40, 45 (2000). Many of the changes in this area of
the law took place after a decision by the United States Supreme Court recognized certain
constitutional due process notice requirements for owners of real property subject to
delinquent tax sales. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S. Ct.
2706, 2712, 77 L. Ed. 2d 180 (1983) (“Notice by mail or other means as certain to ensure
actual notice is a minimum constitutional precondition to a proceeding which will adversely
affect the . . . property interests of any party, whether unlettered or well versed in commercial
5
practice, if its name and address are reasonably ascertainable.”). This Court adopted the
federal constitutional standard in Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122 (1988),
where we held:
There are certain constitutional due process requirements
for notice of a tax sale of real property. Where a party having an
interest in the property can reasonably be identified from public
records or otherwise, due process requires that such party be
provided notice by mail or other means as certain to ensure
actual notice.
Syl. pt. 1, Lilly. Although Lilly addressed the issue of due process notice to a property owner
before a delinquent tax sale occurs, we have found that those constitutional protections are
equally applicable to notice of the right to redeem property after a tax sale. See Mason v.
Smith, 233 W. Va. 673, 680, 760 S.E.2d 487, 494 (2014).
The issue in this case concerns the notice of the right to redeem real property
that was sold for delinquent taxes. Before examining the specific statutory provision at issue
in this case, W. Va. Code § 11A-3-22(d), we must first review W. Va. Code § 11A-3-19
(2010) (Repl. Vol. 2017), a general statute that impacts the resolution of the issue raised
under W. Va. Code § 11A-3-22(d).
As a prerequisite to receiving a deed to property sold for delinquent taxes,
W. Va. Code § 11A-3-19 requires the tax purchaser to “[p]repare a list of those to be served
with notice to redeem and request the State Auditor to prepare and serve the notice as
6
provided in sections twenty-one [§ 11A-3-217] and twenty-two [§ 11A-3-228] of this article.”
(Footnotes added). The statute also makes clear that, “[i]f the purchaser fails to meet these
requirements, he or she shall lose all the benefits of his or her purchase.”9 (Emphasis added).
7
This statute provides an outline of what should be included in a notice to
redeem.
8
This statute instructs as to how notice to redeem must be served.
9
West Virginia Code § 11A-3-19 (2010) (Repl. Vol. 2017) provides in full as
follows:
(a) At any time after October 31 of the year following the
sheriff’s sale, and on or before December 31 of the same year,
the purchaser, his or her heirs or assigns, in order to secure a
deed for the real estate subject to the tax lien or liens purchased,
shall:
(1) Prepare a list of those to be served with notice
to redeem and request the State Auditor to prepare and
serve the notice as provided in sections twenty-one and
twenty-two of this article;
(2) When the real property subject to the tax lien
is classified as Class II property, provide the State
Auditor with the physical mailing address of the property
that is subject to the tax lien or liens purchased;
(3) Provide the State Auditor with a list of any
additional expenses incurred after January 1 of the year
following the sheriff’s sale for the preparation of the list
of those to be served with notice to redeem including
proof of the additional expenses in the form of receipts
or other evidence of reasonable legal expenses incurred
for the services of any attorney who has performed an
examination of the title to the real estate and rendered
written documentation used in the preparation of the list
(continued...)
7
Further, prior to 1994, the text of W. Va. Code § 11A-3-19 was contained in a former version
of W. Va. Code § 11A-3-20. This Court held the following regarding the pre-1994 version
9
(...continued)
of those to be served with the notice to redeem;
(4) Deposit with the State Auditor a sum sufficient
to cover the costs of preparing and serving the notice;
and
(5) Present the purchaser’s certificate of sale, or
order of the county commission where the certificate has
been lost or wrongfully withheld from the owner, to the
State Auditor.
If the purchaser fails to meet these requirements, he or
she shall lose all the benefits of his or her purchase.
(b) If the person requesting preparation and service of the
notice is an assignee of the purchaser, he or she shall, at the time
of the request, file with the State Auditor a written assignment
to him or her of the purchaser’s rights, executed, acknowledged
and certified in the manner required to make a valid deed.
(c) Whenever any certificate given by the sheriff for a tax
lien on any land, or interest in the land sold for delinquent taxes,
or any assignment of the lien is lost or wrongfully withheld from
the rightful owner of the land and the land or interest has not
been redeemed, the county commission may receive evidence of
the loss or wrongful detention and, upon satisfactory proof of
that fact, may cause a certificate of the proof and finding,
properly attested by the State Auditor, to be delivered to the
rightful claimant and a record of the certificate shall be duly
made by the county clerk in the recorded proceedings of the
commission.
(Emphasis added).
8
of W. Va. Code § 11A-3-20:
Noncompliance with the mandatory requirements of West
Virginia Code § 11A-3-20 (1983 Replacement Vol.) is a
jurisdictional defect not subject to curative measures.
Syl. pt. 3, State ex rel. Morgan v. Miller, 177 W. Va. 97, 350 S.E.2d 724 (1986). In light of
the fact that W. Va. Code § 11A-3-20 was rewritten in 1994, and its text was placed in
W. Va. Code § 11A-3-19, we take this opportunity to now hold that noncompliance with the
mandatory requirements of W. Va. Code § 11A-3-19 is a jurisdictional defect not subject to
curative measures.10
As we previously mentioned, and now hold, W. Va. Code § 11A-3-19 provides
that a property owner must be served notice of the right to redeem property as outlined under
W. Va. Code § 11A-3-22, and that failure to provide notice in the manner required will result
in the tax purchaser of the property losing all benefits of the purchase. The Petitioner
contends that the Respondent failed to comply with the “Occupant” notice requirement
contained in W. Va. Code § 11A-3-22(d). The relevant text of this statutory provision
10
This holding, as taken from Syllabus point 3 of State ex rel. Morgan v. Miller,
177 W. Va. 97, 350 S.E.2d 724 (1986), is directed at the presumptive curing of certain
irregularities in tax sale procedures as stated in W. Va. Code § 11A-3-31 (1994) (Repl. Vol.
1995). This statute, however, by referencing W. Va. Code § 11A-4-4, exempts its application
to a procedural defect involving notice under W. Va. Code § 11A-3-22 (2013) (Repl. Vol.
2017). See Gates v. Morris, 123 W. Va. 6, 11, 13 S.E.2d 473, 476 (1941) (“Generally the
want of notice required by statute is a jurisdictional defect which cannot be cured.” (internal
quotations and citations omitted)).
9
provides as follows:
In addition to the other notice requirements set forth in
this section, if the real property subject to the tax lien was
classified as Class II property at the time of the assessment, at
the same time the State Auditor issues the required notices by
certified mail, the State Auditor shall forward a copy of the
notice sent to the delinquent taxpayer by first class mail,
addressed to “Occupant”, to the physical mailing address for
the subject property. The physical mailing address for the
subject property shall be supplied by the purchaser of the tax
lien pursuant to the provisions of section nineteen of this
article.[11]
11
The full text of W.Va. Code § 11A-3-22 provides the following:
(a) As soon as the State Auditor has prepared the notice
provided in section twenty-one of this article, he or she shall
cause it to be served upon all persons named on the list
generated by the purchaser pursuant to the provisions of section
nineteen of this article.
(b) The notice shall be served upon all persons residing
or found in the state in the manner provided for serving process
commencing a civil action or by certified mail, return receipt
requested. The notice shall be served on or before the thirtieth
day following the request for the notice.
(c) If a person entitled to notice is a nonresident of this
state, whose address is known to the purchaser, he or she shall
be served at that address by certified mail, return receipt
requested.
(d) If the address of a person entitled to notice, whether
a resident or nonresident of this state, is unknown to the
purchaser and cannot be discovered by due diligence on the part
of the purchaser, the notice shall be served by publication as a
Class III-0 legal advertisement in compliance with the
(continued...)
10
W. Va. Code § 11A-3-22(d). (Emphasis and footnote added).
For purposes of this appeal, the relevant text of W. Va. Code § 11A-3-22(d)
is not ambiguous. We have held that “[w]hen a statute is clear and unambiguous and the
legislative intent is plain the statute should not be interpreted by the courts, and in such a case
11
(...continued)
provisions of article three, chapter fifty-nine of this code and the
publication area for the publication shall be the county in which
the real estate is located. If service by publication is necessary,
publication shall be commenced when personal service is
required as set forth in this section and a copy of the notice shall
at the same time be sent by certified mail, return receipt
requested, to the last known address of the person to be served.
The return of service of the notice and the affidavit of
publication, if any, shall be in the manner provided for process
generally and shall be filed and preserved by the State Auditor
in his or her office, together with any return receipts for notices
sent by certified mail.
In addition to the other notice requirements set forth in
this section, if the real property subject to the tax lien was
classified as Class II property at the time of the assessment, at
the same time the State Auditor issues the required notices by
certified mail, the State Auditor shall forward a copy of the
notice sent to the delinquent taxpayer by first class mail,
addressed to “Occupant”, to the physical mailing address for the
subject property. The physical mailing address for the subject
property shall be supplied by the purchaser of the tax lien
pursuant to the provisions of section nineteen of this article.
Where the mail is not deliverable to an address at the physical
location of the subject property, the copy of the notice shall be
sent to any other mailing address that exists to which the notice
would be delivered to an occupant of the subject property.
11
it is the duty of the courts not to construe but to apply the statute.” Syl. pt. 1, State ex rel.
Fox v. Board of Trs. of Policemen’s Pension or Relief Fund of City of Bluefield, 148 W. Va.
369, 135 S.E.2d 262 (1964), overruled on other grounds by Booth v. Sims, 193 W. Va. 323,
456 S.E.2d 167 (1995). Consequently, we now hold West Virginia Code § 11A-3-22(d)
provides that, in order to comply with the redemption notice requirements for Class II
property, in addition to the other notice requirements set forth in W. Va. Code § 11A-3-22,
notice must also be addressed to “Occupant” and mailed to the property.
The “Occupant” requirement of W. Va. Code § 11A-3-22(d) was added in
2010. Although there is no legislative history explaining why the “Occupant” provision was
added to the statute, it is possible that the provision was added in response to the 2006
decision by the United States Supreme Court in Jones v. Flowers, 547 U.S. 220, 126 S. Ct.
1708, 164 L. Ed. 2d 415 (2006).
The decision in Jones squarely addressed the issue of sending mail addressed
to “Occupant” before real property may be taken from an owner for tax purposes. The
plaintiff in Jones had a thirty year mortgage on his home in Arkansas. He paid his mortgage
each month for thirty years, and the mortgage company paid his property taxes during that
period. After the plaintiff paid off his mortgage in 1997, the property taxes went unpaid, and
the State certified the property as delinquent. The State attempted to notify the plaintiff of
12
the tax delinquency, and his right to redeem the property, by mailing a certified letter to his
home. The post office returned the mail marked “unclaimed.” Two years later, the State
published a notice of public sale of plaintiff’s property in a local newspaper. After several
months passed, the State mailed a second certified letter to the plaintiff informing him that
the property was going to be sold to a specific bidder. The second letter was also returned
marked “unclaimed.” The plaintiff learned of the sale of his property as a result of an
unlawful detainer notice being delivered to his daughter.12 The plaintiff filed an action in an
Arkansas State court for a determination of whether the State provided sufficient notice to
him that his home was going to be sold for delinquent taxes. The plaintiff argued that the
notice provided by the State was insufficient to satisfy constitutional due process. The
Arkansas trial court and supreme court disagreed with the plaintiff. The United States
Supreme Court granted certiorari “to resolve a conflict among the Circuits and State Supreme
Courts concerning whether the Due Process Clause requires the government to take
additional reasonable steps to notify a property owner when notice of a tax sale is returned
undelivered.” Jones, 547 U.S. at 225, 126 S. Ct. at 1713, 164 L. Ed. 2d 415. The Supreme
Court agreed with the plaintiff that due process under the facts of the case required more
from the State before his home could be taken for delinquent taxes. Relevant to the instant
case, the opinion held the following:
12
It appears that the plaintiff did not receive the certified mailings because he
was living at another address.
13
In response to the returned form suggesting that Jones
had not received notice that he was about to lose his property,
the State did-nothing. For the reasons stated, we conclude the
State should have taken additional reasonable steps to notify
Jones, if practicable to do so. . . .
....
Other reasonable followup measures, directed at the
possibility that Jones had moved as well as that he had simply
not retrieved the certified letter, would have been to post notice
on the front door, or to address otherwise undeliverable mail to
“occupant.” Most States that explicitly outline additional
procedures in their tax sale statutes require just such
steps. . . . . Either approach would increase the likelihood that
the owner would be notified that he was about to lose his
property, given the failure of a letter deliverable only to the
owner in person. That is clear in the case of an owner who still
resided at the premises. It is also true in the case of an owner
who has moved: Occupants who might disregard a certified mail
slip not addressed to them are less likely to ignore posted notice,
and a letter addressed to them (even as “occupant”) might be
opened and read. In either case, there is a significant chance the
occupants will alert the owner, if only because a change in
ownership could well affect their own occupancy.
Jones, 547 U.S. at 234-35, 126 S. Ct. at 1718-19, 164 L. Ed. 2d 415. The decision in Jones
suggests that, before states may take property for delinquent tax purposes, due process may
require mailing notice to the property addressed to “Occupant.” West Virginia Code §
11A-3-22(d) makes this constitutional suggestion mandatory for redemption purposes.
In the instant proceeding, the record is clear in showing that the requirement
under W. Va. Code § 11A-3-22(d), that redemption notice be mailed and addressed to the
14
“Occupant,” did not occur. The circuit court found that this noncompliance with the statute
was harmless because the Petitioner would not have received the notice. However, the
decisions of this Court have made clear that “the right of a landowner to have the statutory
procedures complied with before he is deprived of his land is fundamental[.]” Morgan, 177
W. Va. at 106, 350 S.E.2d at 734. See also Syl. pt. 1, Cook v. Duncan, 171 W. Va. 747, 301
S.E.2d 837 (1983) (“Persons seeking to obtain complete title to property sold for taxes must
comply literally with the statutory requirements.”). To follow the logic of the circuit court
would require rewriting the statute and omitting the “Occupant” notice requirement. This
requirement is no less important than any of the other notice requirements set out under
W. Va. Code § 11A-3-22. It is not the role of the courts to cherry pick which notice is
important and which notice may be tossed to the curb. The role of courts is to apply the law
fully, not to partially ignore it. It is for this reason that W. Va. Code § 11A-3-19(a)(5) clearly
instructs courts that “[i]f the purchaser fails to meet these requirements, he or she shall lose
all the benefits of his or her purchase.” Nothing could be any clearer. The circuit court was
simply wrong in discounting the omission of the “Occupant” notice requirement. See Koontz
v. Ball, 96 W. Va. 117, 121-22, 122 S.E. 461, 463 (1924) (“Those statutes which require
notice to the owner . . . of the tax purchase and of the time of expiration of the period for
redemption are strictly construed in favor of the owner, and against the purchaser, and, unless
their provisions are literally complied with, the sale will be void.”).
15
The Respondent argues that the failure to comply with the “Occupant” notice
requirement was made by the State Auditor; therefore, it should not be penalized for the
error.13 The Respondent correctly asserts that W. Va. Code § 11A-3-22(d) obligates the State
Auditor to mail notice to the “Occupant” of a Class II property.14 However, this duty is not
imposed until a tax purchaser complies with its duty under W. Va. Code § 11A-3-19 to
provide the State Auditor with a list of names and addresses that, when applicable, should
include “Occupant” as a named entity to receive notice. The statute specifically provides that
a tax purchaser must “[p]repare a list of those to be served with notice to redeem[.]” W. Va.
Code § 11A-3-19(a)(1). For purposes of Class II property, “Occupant” is one of those that
must receive notice to redeem. In other words, the State Auditor does not have a duty to
hazard a guess in every tax delinquency proceeding as to when notice must be addressed and
13
The Respondent also suggested that the Petitioner should have brought the
State Auditor into this proceeding. The Petitioner notes that this issue was not presented to
the circuit court and we should, therefore, not address it. See Syl. pt. 2, Sands v. Security
Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958) (“This Court will not pass on a
nonjurisdictional question which has not been decided by the trial court in the first
instance.”). Assuming, for the sake of argument, that the issue was presented to the circuit
court, the Respondent has not adequately briefed the issue for consideration in this appeal.
See State v. White, 228 W. Va. 530, 541 n.9, 722 S.E.2d 566, 577 n.9 (2011) (“Typically, this
Court will not address issues that have not been properly briefed.”); State, Dep’t of Health
& Human Res., Child Advocate Office v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d
827, 833 (1995) (“[A] skeletal ‘argument,’ really nothing more than an assertion, does not
preserve a claim[.]” (internal quotations and citation omitted)).
14
The parties do not dispute that Petitioner’s property is designated as Class II.
See Mountain Am., LLC v. Huffman, 224 W. Va. 669, 675 n.5, 687 S.E.2d 768, 774 n.5
(2009) (“Owner-occupied properties used exclusively for residential purposes and farms are
Class II property.”).
16
mailed to “Occupant.” West Virginia Code § 11A-3-19 imposed the duty on the Respondent
to inform the State Auditor that notice to “Occupant” was also required.15 The record in this
case does not show that the Respondent directed the State Auditor to serve notice addressed
to “Occupant.” See O’Neal v. Wisen, No. 5:16-CV-08597, 2017 WL 3274437, at *6
(S.D. W. Va. Aug. 1, 2017) (“It is undisputed that [tax purchaser] did not direct a notice to
the ‘occupant’ of the Property[.]”).
Our cases have long made clear that the burden is exclusively upon the tax
purchaser to show that the delinquency tax sale statutes have been complied with. See Mike
Ross, Inc. v. Bergdorf, No. 16-1046, 2017 WL 4712793, at *4 (W. Va. Oct. 20, 2017)
(Memorandum Decision) (“[T]he burden was on respondents to prove that they strictly
complied with the statutory requirements.”); Mason v. Smith, 233 W. Va. 673, 680, 760
15
In addition to finding that W. Va. Code § 11A-3-19 requires the Respondent
to add “Occupant” to the list of names submitted to the State Auditor, we also find that
W. Va. Code § 11A-3-22(d) requires the same. We understand that, read in isolation, W. Va.
Code § 11A-3-22(d) does not expressly state that the tax purchaser is required to inform the
State Auditor that notice must be addressed to “Occupant.” However, such a requirement
is implicit in statute’s purpose of protecting the rights of property owners. We have long
recognized that, “[t]hat which is necessarily implied in a statute, or must be included in it in
order to make the terms actually used have effect . . . , is as much a part of it as if it had been
declared in express terms.” Crouch v. West Virginia Workers’ Comp. Comm’r, 184 W. Va.
730, 733, 403 S.E.2d 747, 750 (1991) (internal quotations and citation omitted). See also
Conner v. Conner, 175 W. Va. 512, 516, 334 S.E.2d 650, 654 (1985) (“Even though our
statute did not originally provide for reasonable notice, it would appear that we considered
this requirement to be implicit in the statute.”); Bailey Lumber Co. v. Ball, 124 W. Va. 340,
342, 20 S.E.2d 241, 242 (1942) (“The affidavit is a requisite part of the notice to the
landowner. . . . We believe that the requirement of an affidavit is implicit in the statute.”).
17
S.E.2d 487, 494 (2014) (“[I]n an action for cancellation of a tax deed, the tax deed grantee
has the burden of proving compliance with the statutory steps required.” (internal quotations
and citation omitted)); Rebuild Am., Inc. v. Davis, 229 W. Va. 86, 94, 726 S.E.2d 396, 404
(2012) (“Our law is clear that in a suit for cancellation of tax deed, the tax deed grantee has
the burden of proving compliance with the statutory steps required, including the validity of
statutory notice of application for tax deed.”); Gates v. Morris, 123 W. Va. 6, 9, 13 S.E.2d
473, 475 (1941) (“The burden was on the tax deed grantee, Morris, to prove the validity of
this published notice.”); Syllabus, Dickerson v. Flanagan, 103 W. Va. 233, 136 S.E. 854(1927) (“Where the statute authorizes the publication and posting of a notice, which affects
property rights, the steps directed by the statute must be strictly pursued. The burden of
showing such pursuance is on him who would profit by such notice.”). The Respondent has
not carried its burden by burying its head in the sand and blaming the State Auditor for not
providing notice addressed to “Occupant.”
Insofar as there is no dispute that the Respondent failed to have notice to
redeem mailed to the Petitioner’s address as required by W. Va. Code § 11A-3-22(d), it was
error for the circuit court to grant summary judgment in favor of the Respondent.16
16
The Petitioner raised additional issues as to why summary judgment for the
Respondent was error. The Petitioner alleged that the Respondent should have taken
additional steps to provide actual notice, and that the circuit court committed error in finding
that additional steps would have failed. Because we have reversed this case on the failure
(continued...)
18
IV.
CONCLUSION
In view of the foregoing, we reverse the circuit court’s summary judgment
order in favor of the Respondent. This matter is remanded to the circuit court with
instructions to grant summary judgment in favor of the Petitioner, set aside the Respondent’s
tax deed to her home, and determine the amount to be paid by the Petitioner to redeem the
property.17
Reversed and Remanded.
16
(...continued)
to mail notice to “Occupant,” we need not address the two other issues raised.
17
See Syl. pt. 2, Rebuild Am., Inc. v. Davis, 229 W. Va. 86, 726 S.E.2d 396(2012) (“Before a trial court may enter a final order setting aside a tax deed pursuant to
W. Va. Code, 11A-4-4 [1994], the trial court must make a preliminary finding that the tax
deed will be set aside if, within thirty days of the entry of the preliminary finding, there is
paid or tendered to the tax deed purchaser, or his heirs or assigns: (1) the amount of money
that would have been required to redeem the property, (2) the amount of real estate taxes paid
on the property since delivery of the deed, and (3) interest at the rate of twelve percent per
annum. If these amounts are not paid or tendered to the tax deed purchaser within thirty days
of entry of the preliminary findings, the trial court, upon the request of the tax deed
purchaser, must enter an order dismissing the case seeking to set aside the tax deed.”).
19