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Mike Ross, Inc. v. Bergdorf

Supreme Court of West Virginia

October 20, 2017

Mike Ross, Inc., a West Virginia Corporation, and Waco Oil and Gas Co., Inc., a West Virginia Corporation, Defendants Below, Petitioners
v.
Zachary S. Bergdorf and Rosalea Harker, Plaintiffs Below, Respondents

         Barbour County 14-C-35

          MEMORANDUM DECISION

         Petitioners and Defendants Below Mike Ross, Inc., and Waco Oil and Gas Co., Inc., by by counsel Richard W. Gallagher and E. Ryan Kennedy, appeal the Circuit Court of Barbour County's October 7, 2016, summary judgment order that set aside a tax deed to a 65.15 acre parcel of land and declared it (and subsequent corrective deeds) null and void. Respondents and Plaintiffs Below Zackary S. Bergdorf and Rosalea Harker, by counsel William L. Frame, filed a response in support of the circuit court's order. Petitioners submitted a reply.

         This 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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On July 29, 2000, Respondent Rosalea Harker purchased three parcels of land from Richard L. Boyce and Beth Ann Boyce, containing 41.53 acres, 70 acres, and 65.15 acres. This deed is of record in the Office of the County Clerk of Barbour County in Deed Book 382, Page 528. The real estate was assessed for tax year 2002. The 65.15 acre parcel was assessed as Ticket 3731, Map 7, Parcel 3, 65.15 AC SUR Cove Run.

         The taxes were delinquent on the subject property in 2005 and 2006, but were redeemed in 2007 by Jennifer Greaser, the girlfriend of Respondent Zackary Bergdorf, Respondent Harker's son.[1] Greaser had received a durable power of attorney for both respondents. Greaser had also completed a change of address form for all three tracts purchased by Respondent Harker when she tendered the durable power of attorney to the Barbour County Tax Office. This form changed the address from RR 1, Box 106-Z, Bruceton Mills, WV, 26525, to Rt. 2, Box 49 A, Tunnelton, WV, 26444. While the address was properly updated on the 41.53 and 70 acre parcels, the address for the 65.15 acre parcel was not, and continued to be listed as the Bruceton Mills address.

         The taxes on the subject property became delinquent in 2009. On November 4, 2010, the Sheriff of Barbour County sold the tax lien on the 65.15 acre parcel to petitioners for a total consideration of $24, 958.72. At the time of the tax sale, the address listed for Respondent Harker by the sheriff's office was the incorrect Bruceton Mills address.

         After the sale of the tax lien on the subject property but prior to issuance of a tax deed, Respondent Harker conveyed the subject property to herself and Respondent Bergdorf, as joint tenants with rights of survivorship. This deed, dated February 11, 2011, was recorded on April 21, 2011, in the Office of the County Clerk of Barbour County in Deed Book 447, Page 100. Respondent Bergdorf's then current address appears on the front of this deed. Petitioners, through their attorney, conducted a title search of the subject property that overlooked the 2011 deed from Respondent Harker to herself and Respondent Bergdorf as joint tenants with rights of survivorship.

         A Notice to Redeem was thereafter prepared by petitioners and tendered to the State Auditor's Office, as required by West Virginia Code § 11A-3-19(a). The notice was stamped as received by the Auditor's Office on December 21, 2011. The notice indicated that the legal description of the property was "65.15 SUR CLOVER RUN, " and the name and address of those to be notified as "HARKER ROSALEA c/o ZACKARY BERGDORF, RR 1 BOX 106-Z, BRUCETON MILLS, WV 26525." The notice did not list Respondent Bergdorf separately as a person "to be notified" nor was he served with notice to redeem.

         The Notice to Redeem, which was mailed to Respondent Harker's Bruceton Mills' address, was returned marked "Return to Sender, Not Deliverable as Addressed, Unable to Forward." It is undisputed that petitioners made no additional effort to locate Respondent Harker's correct address. The notice was thereafter published in the Barbour Democrat, a newspaper of general circulation in Barbour County, for a period of three weeks beginning on February 8, 2012, pursuant to West Virginia Code § 11A-3-22(d). The publication listed the name of Rosalea Harker as the owner of the property.

         A tax deed conveying "65.15 SUR COVE RUN, COVE DISTRICT" to petitioners was issued on April 1, 2012. It was recorded on April 30, 2012 in the Office of the County Clerk of Barbour County in Deed Book 452, Page 252.

         On April 9, 2012, Respondent Bergdorf was informed by the clerk in the Barbour County Tax Office that the subject property had been sold for unpaid taxes. He thereafter sought to purchase from petitioners all of the subject property that was sold to them at the tax sale. According to deposition testimony of petitioners' employee, Brenda Bush, Respondent Bergdorf wanted to "make sure that he was getting everything back that was in the original deed that [petitioners] got back from the state. . . . And I informed him that the description of the property matched exactly what [petitioners] had purchased."

         On August 22, 2012, for the amount of $45, 000, petitioners purportedly conveyed to Respondent Bergdorf only the surface interest in the subject property. Specifically, petitioners conveyed

all of their right, title and interest in and to the surface of that property situate in Cove District, Barbour County, West Virginia, and appearing on the property tax records of said district, county and state as follows: Map 7, Parcel 3, 65.15 SUR, COVE RUN being property conveyed to the parties of the first part by Deed from G. Russell Rollyson, Jr., dated April 1, 2012, and of record in Deed Book 452, Page 252.

The deed was recorded on July 10, 2013, in the Office of the County Clerk of Barbour County in Deed Book 460, Page 637.

         On May 30, 2014, respondents filed a complaint in the Circuit Court of Barbour County challenging the validity of petitioners' tax deed based upon petitioners' failure to serve Respondent Bergdorf with the Notice to Redeem and failure to serve Respondent Harker with legally sufficient notice such that respondents were entitled to have the tax deed declared null and void, be set aside, and title and ownership of the property be restored to them under West Virginia Code § 11A-4-4.[2] Respondents further alleged that petitioners failed to execute and deliver to Respondent Berger a deed to both the surface and mineral interests of the subject property and to "meet the statutory requirements to secure a deed to the subject property" under West Virginia Code ยง ...


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