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Ancient Energy, Ltd. v. Ferguson

Supreme Court of West Virginia

October 10, 2017


          Submitted: September 13, 2017

         Appeal from the Circuit Court of Barbour County Honorable Alan D. Moats, Judge Civil Action No. 14-C-62

          Terri L. Tichenor, Esq. Tichenor Law Office Fairmont, West Virginia Attorney for Petitioners.

          Stephen C. Sluss, Esq. Hurricane, West Virginia and Jeffrey R. Blair, Esq. Blair Law Firm, PLLC Hurricane, West Virginia Attorneys for Respondents.


         1. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).

         2. "'"'The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled.' Syllabus Point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984)." Syllabus point 1, Whitlow v. Board of Education of Kanawha County, 190 W.Va. 223, 438 S.E.2d 15 (1993).' Syllabus point 6, Albright v. White, 202 W.Va. 292, 503 S.E.2d 860 (1998)." Syl. Pt. 6, Carvey v. West Virginia State Bd. of Educ, 206 W.Va. 720, 527 S.E.2d 831 (1999).



         Ancient Energy, Ltd., David E. Bowyer, and David A. Dickey (hereinafter collectively "petitioners") appeal the February 29, 2016, final order of the Circuit Court of Barbour County granting summary judgment to Philip G. Ferguson, in his official capacity as Sheriff and Treasurer of Barbour County, and John M. Cutright, in his official capacity as Assessor of Barbour County (hereinafter collectively "respondents"). The petitioners purchased a tax lien on certain mineral interests from the Deputy Commissioner of Delinquent and Nonentered Lands of Barbour County on September 19, 2011, and secured a deed to the property on January 23, 2012. In this appeal, the petitioners contend that the circuit court erred by finding them liable for payment of the property taxes for the years of 2011 and 2012. Upon consideration of the parties' briefs and arguments and the pertinent authorities, we find no error and affirm the circuit court's order.

         I. Factual and Procedural Background

         In November 2006, Sheriff Ferguson held a public auction of properties that were delinquent because of unpaid property taxes, [1] which included certain mineral interests described as "959.69 coal unmineable, in Union District, Barbour County, West Virginia." Because no bid was received for these mineral interests, Sheriff Ferguson certified a lien on the property to the West Virginia State Auditor's office pursuant to West Virginia Code § 11A-3-8 (2017).[2] The State Auditor is designated by statute as the "commissioner of delinquent and nonentered lands" and is tasked with selling those properties that sheriffs are unable to sell to recover delinquent taxes. See W.Va. Code § § 11A-3-33 and 11A-3-42 (2017). To accomplish this task, the State Auditor appoints a "deputy commissioner of delinquent and nonentered lands for each county"[3] who holds a second auction of certified properties if no party steps forward to redeem within eighteen months of the sheriff's certification.[4]

         On September 19, 2011, Ancient Energy, a West Virginia corporation in the business of oil and gas development, purchased the tax lien on the subject property from G. Russell Rollyson, Jr., Deputy Commissioner of Delinquent and Nonentered Lands of Barbour County. The lien on the mineral interests was sold to Ancient Energy for its bid amount of one hundred dollars[5] for the delinquent taxes for the years of 2005 through 2010. After the required statutory notices were given and the redemption period expired, Ancient Energy requested that the deputy commissioner prepare a deed transferring ownership of the mineral interests[6] to petitioners David A. Dickey[7] and David E. Bowyer. The deed was executed as requested and recorded in the Barbour County Clerk's Office on March 8, 2012.

         In June 2012, Assessor Cutright entered the property on the county land books in the names of Dickey and Bowyer. Thereafter, Dickey and Bowyer received and paid a tax invoice for the 2013 property taxes on or about August 19, 2013. Approximately two months later, the Sheriff's office returned Dickey and Bowyer's tender of payment for the 2013 taxes with a note explaining that the taxes for the years of 2011 and 2012 remained unpaid.[8] At the same time, Dickey and Bowyer received separate invoices for the 2011 and 2012 taxes in the amounts of $2, 254.08 and $2, 243.70, respectively.

         The petitioners disputed their liability for the 2011 and 2012 taxes, arguing that because the mineral interests had been "sold" to the State, no taxes were due for that time period. Unable to resolve the matter with the respondents, the petitioners filed a petition for a writ of mandamus in the circuit court on September 23, 2014, seeking an order requiring the respondents to "remove the back tax assessments and accept payment from the Petitioners for the 2013 invoice as requested." The respondents filed an answer and a motion for judgment on the pleadings pursuant to Rule 12(c) of the West Virginia Rules of Civil Procedure. The circuit court heard arguments on the motion on January 9, 2016, and then continued the matter to allow the parties time to examine the land books to determine when the 2011 and 2012 tax assessments occurred.[9] To clarify the issue, the parties agreed to submit an affidavit, which the court would accept as fact and stipulation. Thereafter, the respondents submitted an affidavit from Assessor Cutright stating that "[t]he Assessments for Tax Years 2011 and 2012 were entered on the Barbour County, West Virginia, Land Records . . . and were available for review by the taxpayers while the books were before the Barbour County Commission Sitting as Board of Equalization and Review in February of 2013." Upon consideration of the affidavit, the circuit court converted the respondents' Rule 12(c) motion to a motion for summary judgment[10] and entered the final order in favor of the respondents. The circuit court concluded that "the Petitioners' title to the property relates back to July 1, 2004, which is the first day of July of the year in which the taxes, for nonpayment of which the real estate was sold, were assessed and therefore the back tax for 2011 and 2012 to Dickey and Bowyer were appropriate." This appeal followed.

         II. Standard of Review

         Although the petitioners sought a writ of mandamus, the circuit court disposed of the matter by granting summary judgment to respondents, effectively denying the requested writ. The circuit court rendered its decision based upon the statutes that govern tax sales of delinquent properties. Our review of a circuit court's decision denying a writ of mandamus or granting summary judgment is de novo. See Syl. Pt. 1, Harrison Cnty. Comm'n v. Harrison Cnty. Assessor,222 W.Va. 25, 658 S.E.2d 555 (2008) ("A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus."); Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo."). Likewise, when the issue on appeal involves a question of law or statutory interpretation, our review is de novo. See Syl. Pt. 1, Chrystal R.M. v. Charlie ...

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