L&D INVESTMENTS, INC., A WEST VIRGINIA CORPORATION; RICHARD SNOWDEN ANDREWS, JR.; MARION A. YOUNG TRUST; AND CHARLES A. YOUNG, DAVID L. YOUNG, AND LAVINIA YOUNG DAVIS, SUCCESSORS OF MARION A. YOUNG TRUST, Plaintiffs Below, Petitioners
MIKE ROSS, INC., AND ANTERO RESOURCES CORPORATION, Defendants Below, Respondents AND ROBERT HITZELBERGER, Defendant Below, Petitioner
MIKE ROSS, INC., Defendant Below, Respondent and L&D INVESTMENTS, INC., A WEST VIRGINIA CORPORATION; RICHARD SNOWDEN ANDREWS, JR.; MARION A. YOUNG TRUST; CHARLES A. YOUNG, DAVID L. YOUNG, AND LAVINIA YOUNG DAVIS, SUCCESSORS OF MARION A. YOUNG TRUST, Plaintiffs Below, Respondents
Submitted: February 13, 2018
Appeals from the Circuit Court of Harrison County Honorable
Thomas A. Bedell, Judge Civil Action Nos. 13-C-528,
J. Romano, Esq. Brandon D. Cole, Esq. Romano Law Office
Clarksburg, West Virginia Attorneys for L&D Investments,
Inc., Richard Snowden Andrews, Jr., Marion A. Young Trust,
Charles A. Young, David L. Young, and Lavinia Young Davis
Nicholas S. Preservati, Esq. Kelly G. Pawlowski, Esq.
Spilman, Thomas & Battle, PLLC Charleston, West Virginia
Attorneys for Robert Hitzelberger
Louis Shuman, Esq. Reeder & Shuman Morgantown, West
Virginia and Loren B. Howley, Esq. Grantsville, West Virginia
Attorneys for Mike Ross, Inc.
Henry Lawrence, Esq. Amy M. Smith, Esq. Amber M. Moore, Esq.
Shaina D. Massie, Esq. Steptoe & Johnson PLLC Bridgeport,
West Virginia Attorneys for Antero Resources Corp.
"The standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W.Va.
R. Civ. P. 59(e), is the same standard that would apply to
the underlying judgment upon which the motion is based and
from which the appeal to this Court is filed." Syl. Pt.
1, Wickland v. Am. Travellers Life Ins. Co., 204
W.Va. 430, 513 S.E.2d 657 (1998).
"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).
"In case of two assessments of the same land under the
same claim of title for any year, one payment of taxes under
either assessment is all the state can require." Syl.
Pt. 2, State v. Allen, 65 W.Va. 335, 64 S.E. 140
"'"This Court will not pass on a
nonjurisdictional question which has not been decided by the
trial court in the first instance." Syllabus Point 2,
Sands v. Security Trust Co., 143 W.Va. 522, 102
S.E.2d 733 (1958).' Syllabus Point 2, Duquesne Light
Co. v. State Tax Department, 174 W.Va. 506, 327 S.E.2d
683 (1984), cert. denied, 471 U.S. 1029, 105 S.Ct.
2040, 85 L.Ed.2d 322 (1985)." Syl. Pt. 4, State ex
rel State Line Sparkler of W.Va. v. Teach, 187 W.Va.
271, 418 S.E.2d 585 (1992).
case is before this Court upon consolidated appeals from an
"Omnibus Order" entered by the Circuit Court of
Harrison County on February 21, 2017, granting summary
judgment to the respondent, Mike Ross, Inc. ("MRI")
and an April 5, 2017, order whereby the circuit court refused
to alter or amend its grant of summary
judgment. Through its Omnibus Order, the circuit
court declared MRI to be the owner of eighty percent of the
oil and gas interests in two adjacent tracts of land in
Harrison County pursuant to a 2003 tax deed issued to MRI
after it purchased the subject property at a delinquent tax
sale. In the appeal identified by Docket No. 17-0432,
petitioners L&D Investments, Inc.; Richard Snowden
Andrews, Jr.; the Marion A. Young Trust; and Charles A.
Young, David L. Young, and Lavinia Young Davis, successors of
the Marion A. Young Trust (hereinafter collectively
"L&D"),  contend the circuit court erred by not
finding that they collectively own a 16.44 percent undivided
interest in the oil and gas in the subject properties. In the
appeal identified by Docket No. 17-0325, petitioner Robert
Hitzelberger claims ownership of an undivided twenty percent
interest in the oil and gas separate from L&D. In both
cases, the petitioners assert that they paid real property
taxes on their oil and gas interests before and after the
delinquent tax sale and that their payment of the taxes
renders the tax deed issued to MRI void. Alternatively, the
petitioners argue that the tax deed issued to MRI should be
set aside because MRI failed to give them notice of the right
to redeem as required by the delinquent tax sale statutes.
L&D Investments further argues the circuit court erred by
declaring its claim against respondent Antero Resources
Corporation ("Antero") relating to the pooling of
the oil and gas under certain properties moot. In granting
summary judgment to MRI, the circuit court found that the
petitioners' claims were barred by the three-year statute
of limitation set forth in West Virginia Code § 11A-4-4
considered the parties' briefs and arguments, the
submitted appendix records, and pertinent authorities, we
find that the tax deed issued to MRI is void and the statute
of limitation is inapplicable. Accordingly, we reverse the
circuit court's orders and remand this case for further
proceedings consistent with this opinion.
Factual and Procedural Background
issue in this case is the present ownership of the oil and
gas interests in two adjacent tracts of land, totaling
approximately 1, 041 acres, located on "Middle Fork of
Sycamore Creek in the Union District of Harrison
County." The oil and gas interests were severed from the
surface and coal interests in 1903. Prior to the severance,
Charles Lee Andrews held fee simple title to the two tracts
as trustee for the benefit of his mother, Mary Catherine Lee
Andrews. By deed dated April 4, 1903, Charles Lee Andrews, as
trustee, conveyed the surface and coal interests to Jonathan
D. Springer. Charles Lee Andrews excepted and reserved the
oil and gas interests from that conveyance.  As trustee for
his mother, Charles Lee Andrews retained title to the oil and
gas interests until her death on March 2, 1920. Pursuant to
Ms. Andrews' will and its five codicils, the oil and gas
interests were divided among her surviving children and
grandchildren as follows: an undivided one-fifth interest
(twentypercent) was devised to each of her four children:
Charles Lee Andrews, Louisa Lee Andrews (Bacon Eldridge),
Carolyn Snowden Andrews (Fahenstock), and George Snowden
Andrews. The remaining undivided one-fifth interest was split
evenly among her decedent daughter's three children:
Rosalie Tunstall Smith (Forster Cooper), Anita Tunstall
Smith, and Marion Tunstall Smith.
years that followed, the oil and gas interests were further
divided among the heirs of Ms. Andrews's children and
grandchildren. Petitioner Richard Snowden Andrews, Jr.,
inherited his interest from his father Richard Snowden
Andrews who received his interest from his father, Charles
Lee Andrews, and uncle, George Snowden Andrews. The interest
held by the Marion A. Young Trust and its successors was also
inherited from Richard Snowden Andrews. The interests claimed
by L&D Investments were purchased from siblings, Deborah
Lee Tschappat and Michael Tschappat. The purchases were perfected
by separate quit claims deeds that were recorded in Harrison
County on March 15, 2013. Collectively, L&D claims a
16.44 percent undivided interest in the oil and gas.
Robert Hitzelberger claims ownership of the twenty percent
undivided interest in the oil and gas that was originally
bequeathed to Carolyn Snowden Andrews Fahnestock. The record
indicates that Carolyn Fahnestock died on October 18, 1937,
in Rhode Island, where her will was probated. Her will and
codicils were recorded in the Harrison County Clerk's
office on July 28, 1986. Pursuant to the will and codicils of
Carolyn Fahnestock, the executors of her estate, who were her
children, conveyed her twenty percent oil and gas interest to
Harry Parsons Cross by deed dated December 1,
1949. Harry Parsons Cross died testate in 1955
in Rhode Island. Pursuant to the terms of his will, which was
recorded in the Harrison County Clerk's Office in 1986,
his interest was devised to a testamentary trust known as the
Cross Trust. On January 18, 1999, an instrument titled
"Assignment and Conveyance" dated December 18,
1998, was recorded in the Harrison County Clerk's Office.
This instrument conveyed all the interests in the oil and gas
in the subject property that was owned by the Cross Trust to
Charles Lee Andrews died in 1946, and the interests in the
oil and gas were conveyed or inherited by several different
individuals over the years, a real property tax assessment
for one hundred percent of the oil and gas interests remained
solely in the name of Charles Lee Andrews until 1999.
other words, all fractional interests in the oil and gas were
on the Harrison County landbooks as a single entry in the
name of "Andrews, Charles Lee, " which the parties
refer to as the "master assessment." However,
additional assessments were added on the landbooks of
Harrison County beginning in 1988 with a new entry in the
name of the "Harry P. Cross Estate, " which
described 1000 acres oil and gas on Sycamore and referenced a
Consolidated lease or well. According to deposition testimony
from a staff member of the Harrison County Assessor's
office, the mineral interest had been previously assessed on
the personal property books rather than the landbooks and was
made based on a gas producer's report of income paid to
the Harry P. Cross Estate from production of the oil and gas.
New landbook assessments were made in 1990 for "Richard
Andrews, Agent" of ".0764% Int. 150 Ac
leased O & G (Alamco) A-774;"
"Andrews, Richard Snowden Hrs." of " Int.
leased O&G Eastern American (8243 C Andrews);
and "Saunders, Phyllis Fletcher" of "0.2244
Int. 271.67 as leased O&G Sycamore (CNG Dev
2088).  In 1991, the Assessor created a new entry
on the landbooks in the name of "Catherine T. Schappat,
" which surname was corrected to Tschappat in 1993. This
entry, like the others, was based on a gas producer's
report of income. The deposition testimony indicated that
these entries were made at the direction of the Property Tax
Division of the West Virginia State Tax Department. The
record in this case includes a letter written on November 7,
1988, by the Director of the Property Tax Division in the
State Tax Department concerning "the reworking of oil
and gas royalty owners (real estate) from the personal to the
real property books." The letter indicated that
"every effort should be made to convert the personal
property account to the (corresponding) real estate
entry" but "[i]f all efforts fail in matching a
personal record with a real estate entry, enter that personal
property record as a separate assessment on the land book in
its proper alphabetical sequence."  As a result
of these entries, real property tax tickets were generated
and were paid by the petitioners or their
predecessors-in-title. At the same time, the "master
assessment" in the name of "Andrews, Charles
Lee" also resulted in the issuance of a tax ticket which
was paid each year through 1999.
1999, Emmi Wyatt, H. R. Thurber Jr., Richard S. Thurber, and
Edythe T. Donovan, each claiming an undivided one-twentieth
(five percent) interest in the propertyrequested
separation of their respective interests in the subject
property from the "master assessment" in the name
of "Andrews, Charles Lee." Thereafter, these
individuals paid and have continued to pay the tax
assessments on their respective shares. However, the
"master assessment" for the year of 2000, in the
name of "Andrews, Charles Lee, " was not paid and
became delinquent. Because of the delinquency, a tax lien on
the property in the name of "Andrews, Charles Lee,
" assessed as an eighty percent undivided interest in
the oil and gas, was sold at a delinquent tax sale to MRI in
2001. In 2003, a tax sale deed was issued to MRI, which
conveyed an eighty percent interest in the oil and gas.
L&D Investments purchased the oil and gas interests of
the Tschappat siblings in 2013, it notified the entities that
were extracting the oil and gas from the property of the
purchases and its right to receive any royalty payments.
L&D Investments was then informed by the gas producers
that the interests it claimed to have purchased had been sold
for delinquent taxes to MRI in 2001. On December 10, 2013,
L&D Investments filed this action for declaratory relief
and to quiet title to its undivided oil and gas interest in
the subject properties. The action named MRI, Antero
Resources Corporation, Consol Energy, CNX Gas Company, and
Robert Hitzelberger as defendants.
complaint, L&D Investments asserted that CNX, Consol, and
Antero were extracting oil and gas from the property and had
refused L&D Investments's request for the royalty
payments because of the alleged ownership of the oil and gas
interests by MRI. L&D Investments also sought declaratory
relief from Antero "regarding other Harrison County
properties owned by [L&D Investments] and which this
Defendant has acted in an unlawful manner bydrilling and
producing on Plaintiff's mineral interests without
Plaintiff's consent to pooling, or by otherwise acting in
a unilateral manner without authority[.]" The ...