IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term FILED
_______________ March 9, 2018
released at 3:00 p.m.
No. 17-0934 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel. SOUTHLAND PROPERTIES, LLC,
Petitioner
v.
HONORABLE DAVID R. JANES, Judge of the Circuit Court of Marion County;
KENNETH G. JONES, JR.; and G. RUSSELL ROLLYSON, JR., Deputy Commissioner
of Delinquent and Nonentered Lands for Marion County, West Virginia,
Respondents
____________________________________________________________
Petition for Writ of Prohibition
WRIT DENIED
____________________________________________________________
Submitted: February 6, 2018
Filed: March 9, 2018
Jason E. Wingfield, Esq. David A. Glance, Esq.
Gianola, Barnum, Bechtel and Jecklin, L.C. David A. Glance, Attorney at Law
Morgantown, West Virginia Fairmont, West Virginia
Counsel for the Petitioner Counsel for the Respondent
Kenneth G. Jones, Jr.
Lisa A. Hopkins, Esq.
Vincent J. Smith, Esq.
West Virginia State Auditor’s Office
Charleston, West Virginia
Counsel for the Respondent
G. Russell Rollyson, Jr., Deputy
Commissioner of Delinquent and
Nonentered Lands
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
ii
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers[.]” Syllabus Point 2, State ex rel.
Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
i
3. “‘Rule 19(a) of the West Virginia Rules of Civil Procedure requires
two general inquiries for joinder of a person who is subject to service of process. First, is
his presence necessary to give complete relief to those already parties? Second, does he
have a claim that, if he is not joined, will be impaired or will his nonjoinder result in
subjecting the existing parties to a substantial risk of multiple or inconsistent obligations?
If the absent person meets the foregoing test, his joinder is required.’ Syllabus, in part,
Wachter v. Dostert, 172 W. Va. 93, 303 S.E.2d 731 (1983).” Syllabus Point 1, State ex rel.
One-Gateway v. Johnson, 208 W. Va. 731, 542 S.E.2d 894 (2000).
4. “When a court proceeding directly affects or determines the scope of
rights or interests in real property, any persons who claim an interest in the real property at
issue are indispensable parties to the proceeding. Any order or decree issued in the absence
of those parties is null and void.” Syllabus Point 2, O’Daniels v. City of Charleston, 200
W. Va. 711, 490 S.E.2d 800 (1997).
5. “Generally, all persons who are materially interested in the subject-
matter involved in a suit, and who will be affected by the result of the proceedings, should
be made parties thereto, and when the attention of the court is called to the absence of any
of such interested persons, it should see that they are made parties before entering a decree
affecting their interest.” Syllabus, Manufacturers’ Light & Heat Co. v. Lemasters, 91 W.
Va. 1, 112 S.E. 201 (1922).
ii
6. West Virginia Code § 11A-3-60 does not contemplate notice to or
participation of a delinquent taxpayer in an action to compel issuance of a deed for property
sold at a tax sale.
iii
WALKER, Justice:
Kenneth G. Jones, Jr. purchased two tracts of land in Marion County at a tax
sale in 2016. The properties were owned by Southland Properties, LLC (Southland), which
had failed to pay property taxes for several years. Shortly after the tax sale, Southland filed
bankruptcy, which precluded the Deputy Commissioner of Delinquent and Nonentered
Lands of Marion County (Deputy Commissioner) from delivering the deeds to Southland’s
tax-delinquent properties to Mr. Jones. After the bankruptcy was dismissed several months
later, the Deputy Commissioner declined to issue the deeds to Mr. Jones because the thirty-
day time frame set by West Virginia Code § 11A-5-39 for issuance of the deeds following
the tax sale had passed — through no fault of Mr. Jones. Mr. Jones instituted an action
under West Virginia Code § 11A-3-60 (Section 60 Proceeding) to compel the Deputy
Commissioner to issue the deeds. Southland moved to intervene in the Section 60
Proceeding on the grounds that it was an indispensable party, which was denied. Southland
invokes this Court’s original jurisdiction and seeks a writ of prohibition against the circuit
court for denying its alleged right to intervene.
While we acknowledge that Southland owned the properties and retained the
right to pay the delinquent taxes and redeem at any time prior to delivery of the deeds to
Mr. Jones, we conclude that Southland was not an indispensable party to the Section 60
Proceedings because Southland made no attempt to redeem and its ownership interest as a
delinquent taxpayer is predicated on redemption. In the absence of an attempt to redeem
1
the properties, the limited scope of the Section 60 Proceeding did not affect Southland’s
property interests, but rather only compelled the Deputy Commissioner to deliver deeds —
the right to which Mr. Jones has long since accrued. Therefore, we deny the writ of
prohibition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Southland owned two tracts of land in Marion County, West Virginia.
Southland did not pay property taxes on those parcels for the tax years 2012, 2013, 2014,
or 2015 and, as a result, owed Marion County over $90,000. On June 29, 2016, Mr. Jones
purchased the two tracts of land at a delinquent properties tax sale conducted by G. Russell
Rollyson, Jr., in his capacity as Deputy Commissioner of Delinquent and Nonentered
Lands for Marion County. Mr. Jones paid $60,000 for the two properties. After the sale,
Mr. Rollyson provided Mr. Jones with a list of the necessary steps to secure the deed, which
included that Mr. Jones provide to Mr. Rollyson a list of all interested parties to be served
with notice of opportunity to redeem and a requirement that Mr. Jones tender payment of
$60,000 on or before August 29, 2016. Mr. Jones complied with all necessary steps. Mr.
Rollyson duly served Southland with notices to redeem both properties by regular mail,
certified mail, and publication. The notices provided that Southland could redeem its
properties by paying the outstanding taxes at any time before October 17, 2016, for one
property, and October 24, 2016 for the other.
2
Southland did not redeem either property. Rather, on October 17, 2016 —
the last day to redeem one of the properties — Southland filed Chapter 11 bankruptcy in
the United States Bankruptcy Court for the Northern District of West Virginia. Because
the two delinquent properties were part of Southland’s bankruptcy estate, their sale to Mr.
Jones was subject to the automatic stay provisions of 11 U.S.C. § 362. Accordingly, Mr.
Rollyson issued refund checks to Mr. Jones. On December 29, 2016, Mr. Jones filed a
Motion for Relief from the Automatic Stay, but during the pendency of that motion, the
bankruptcy court dismissed Southland’s bankruptcy petition.1 The dismissal order, dated
March 3, 2017, lifted the automatic stay, and at that time Mr. Jones corresponded with Mr.
Rollyson in an attempt to secure deeds to the two delinquent properties. Mr. Rollyson
responded that he was unable to issue the deeds pursuant to West Virginia Code § 11A-3-
59, because he interpreted the statute as forbidding him to issue the deeds once thirty days
had passed from the date Mr. Jones’s right to the deeds accrued.2 Mr. Rollyson and Mr.
Jones both agreed that Mr. Jones’s right to the deeds accrued on October 17, 2016, and
October 24, 2016, respectively, but due to the interruption of the bankruptcy proceedings,
1
The record indicates that the United States Trustee moved the bankruptcy court
for conversion or dismissal for, among other things, Southland’s failure to comply with
monthly reporting requirements, Southland’s failure to provide any updated information
relating to an alleged forthcoming sale of the properties, and the failure to list known
delinquent taxes on the schedules it filed with the bankruptcy court.
2
As discussed more fully below, West Virginia Code § 11A-3-59 provides that
“[e]xcept when ordered to do so as provided in section 60 [§11A-3-60] of this article, the
deputy commissioner shall not execute and deliver a deed more than thirty days after the
purchaser’s right to the deed accrued.”
3
more than thirty days had passed since that time. Based on the plain language of the statute,
Mr. Rollyson believed he did not have the authority to issue the deeds without a court order
requiring him to do so.
Accordingly, Mr. Jones sought a court order to compel delivery of the deeds
pursuant to West Virginia Code § 11A-3-60. Prior to filing the action in circuit court, Mr.
Jones provided notice to Mr. Rollyson, but not to Southland. Mr. Rollyson moved to
dismiss the action, and a hearing was held on July 11, 2017. Mr. Rollyson argued that
West Virginia Code § 11A-3-59 did not authorize him to issue the deed after the thirty-day
period, and that he declined to read into the statute a tolling of the thirty-day time limitation
due to bankruptcy proceedings. Mr. Rollyson additionally argued that the most appropriate
course of action was to have Mr. Jones re-bid on the properties. Mr. Jones argued that
West Virginia Code §11A-3-59 does not provide a thirty-day “drop dead date” from which
a tax-sale purchaser has no remedy or recourse. Instead, Mr. Jones reasoned that the
Legislature had contemplated a six-month period to compel issuance of the deed under
West Virginia Code § 11A-3-60 for instances in which outstanding circumstances, due to
no fault of the tax-sale purchaser, had prevented delivery of the deed within the thirty-day
time frame. The circuit court converted the motion to dismiss into a motion for summary
4
judgment and granted summary judgment in favor of Mr. Jones during the hearing.3
However, the circuit court did not issue its final order compelling Mr. Rollyson to deliver
the deeds until August 10, 2017.
After the summary judgment hearing but before the circuit court entered its
final order granting summary judgment to Mr. Jones, Southland moved to intervene in the
proceedings on July 27, 2017. The circuit court took up Southland’s motion on September
11, 2017, after Mr. Rollyson had already delivered the deeds to Mr. Jones pursuant to the
August 10, 2017 order. Southland argued that it should have been given notice of the action
and permitted to intervene because Southland was an indispensable party as it owned the
property until the deeds were delivered to Mr. Jones. Southland contended that West
Virginia Code § 11A-3-56 grants a tax-delinquent property owner the right to redeem at
any time before a tax deed is issued.4 Thus, Southland argued, the failure to notify it of the
hearing and to join it in the proceeding was a violation of its due process rights. Mr. Jones
3
The circuit court’s interpretation of West Virginia Code § 11A-3-59 in its final
order granting summary judgment in favor of Mr. Jones is not before this Court for review.
Our review is limited to Southland’s writ of prohibition in which it challenges the circuit
court’s denial of its motion to intervene.
4
W. Va. Code § 11A-3-56 provides, in relevant part,
“[a]fter the sale of any tax lien on any real estate pursuant to section
forty-five [§ 11A-3-45] or forty-eight [§ 11A-3-48] of this article, the owner
of or any other person who was entitled to pay the taxes on, any real estate
for which a tax lien thereon was purchased by an individual, may redeem at
any time before a tax deed is issued therefor. . . .”
5
argued that the issue was moot because the deeds had already been delivered in response
to the circuit court’s August 10, 2017 order and Southland no longer had an interest in the
property. Mr. Jones drew the circuit court’s attention to the fact that Southland had never
paid its taxes to redeem the property and suggested that Southland’s bankruptcy filing and
motion to intervene were simply a means to extend the redemption period. Finally, Mr.
Jones argued that West Virginia Code § 11A-3-60 requires notice be given only to the
Deputy Commissioner, not the delinquent taxpayer. Therefore, the Legislature intended
that a proceeding to compel issuance of the tax deeds brought under that section would
involve only the Deputy Commissioner and the tax-sale purchaser. Mr. Rollyson took no
position on the motion to intervene, but did stipulate that Mr. Jones had complied with all
statutory requirements for issuance of the deeds.
The circuit court denied Southland’s motion to intervene, agreeing that West
Virginia Code § 11A-3-60 did not contemplate notice to or participation of the delinquent
taxpayer (Southland) in an action to compel issuance of deeds for property sold at a tax
sale. The circuit court further concluded that Southland had forfeited ownership of the two
properties when it failed to redeem within the time frames specified by Mr. Rollyson.
Finally, the circuit court explained that Southland had available remedies under West
Virginia Code §§ 11A-4-1 to -7 which enabled it to bring a cause of action to set aside the
sale or deed. Southland now seeks a writ of prohibition from this Court, contending that
the circuit court exceeded its legitimate powers in denying its motion to intervene.
6
II. STANDARD OF REVIEW
In ascertaining the necessity of issuing a writ of prohibition, we are mindful
that “[a]s an extraordinary remedy, this Court reserves the granting of such relief to ‘really
extraordinary causes.’”5 We have explained that “[a] writ of prohibition will not issue to
prevent a simple abuse of discretion by a trial court. It will only issue where the trial court
has no jurisdiction or having such jurisdiction exceeds its legitimate powers[.]”6 In light
of the posture of Southland’s requested writ, our review is guided the following factors:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
5
State ex rel. AEP v. Nibert, 237 W. Va. 14, 19, 784 S.E.2d 713, 718 (2016) (citing
State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996))
(internal quotations and citations omitted).
6
Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425
(1977).
7
clear error as a matter of law, should be given substantial
weight.7
Southland’s argument in support of prohibition focuses almost exclusively on the third
factor—that the circuit court’s denial of its motion to intervene was clearly erroneous as a
matter of law. With this standard in mind, we turn to the parties’ arguments.
III. ANALYSIS
Southland argues that the Rules of Civil Procedure and this Court’s precedent
regarding the liberal inclusion of parties where real property interests are concerned require
its participation in Mr. Jones’s Section 60 Proceeding. Rule 19 of the West Virginia Rules
of Civil Procedure addresses joinder of appropriate parties:
Persons to be joined if feasible. – A person who is
subject to service of process shall be joined as a party in the
action if (1) in the person’s absence complete relief cannot be
accorded among those already parties, or (2) the person claims
an interest relating to the subject of the action and is so situated
that the disposition of the action in the person’s absence may
(i) as a practical matter impair or impede the person’s ability
to protect that interest, or (ii) leave any of the persons already
parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of the
claimed interest.
Applying this rule, we have held that joinder is required by Rule 19 under certain
circumstances:
“Rule 19(a) of the West Virginia Rules of Civil
Procedure requires two general inquiries for joinder of a person
7
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996)
(footnote added).
8
who is subject to service of process. First, is his presence
necessary to give complete relief to those already parties?
Second, does he have a claim that, if he is not joined, will be
impaired or will his nonjoinder result in subjecting the existing
parties to a substantial risk of multiple or inconsistent
obligations? If the absent person meets the foregoing test, his
joinder is required.” Syllabus, in part, Wachter v. Dostert, 172
W. Va. 93, 303 S.E.2d 731 (1983).8
In favor of prohibition, Southland relies on the liberal application of joinder as requiring
its inclusion in the Section 60 Proceeding:
Generally, all persons who are materially interested in
the subject-matter involved in a suit, and who will be affected
by the result of the proceedings, should be made parties thereto,
and when the attention of the court is called to the absence of
any of such interested persons, it should see that they are made
parties before entering a decree affecting their interest.9
Southland also points to Rule 24 of the West Virginia Rules of Civil Procedure addressing
intervention of right, which provides
Intervention of right. – Upon timely application anyone
shall be permitted to intervene in an action: (1) when a statute
of this State confers an unconditional right to intervene; or (2)
when the applicant claims an interest relating to the property
or transaction which is the subject of the action and the
applicant is so situated that the disposition of the action may as
a practical matter impair or impede the applicant’s ability to
protect that interest, unless the applicant’s interest is
adequately represented by existing parties.
8
Syl. Pt. 1, State ex rel. One-Gateway v. Johnson, 208 W. Va. 731, 542 S.E.2d 894
(2000) (footnote added).
9
Syllabus, Manufacturers’ Light & Heat Co. v. Lemasters, 91 W. Va. 1, 112 S.E.
201 (1922) (footnote added).
9
Relating to the disposition of real property, we have held that
[w]hen a court proceeding directly affects or determines
the scope of rights or interests in real property, any persons
who claim an interest in the real property at issue are
indispensable parties to the proceeding. Any order or decree
issued in the absence of those parties is null and void.10
Thus, implicit in our inquiry into whether Southland is an indispensable party to this action
is consideration of both the nature of the court proceeding and the nature of Southland’s
interest in the real property at issue.
The underlying court proceeding was an action to compel delivery of deeds
purchased at a tax sale, as authorized by West Virginia Code §11A-3-60. West Virginia
Code § 11A-3-59 provides that a tax-sale purchaser’s right to the deed accrues at such time
that the real estate described in the notice is not redeemed within the time frame specified
in the notice.11 Here, Southland filed bankruptcy, which, due to the automatic stay,
prevented Mr. Rollyson from issuing the deeds within the requisite thirty days.12 Because
10
Syl. Pt. 2, O’Daniels v. City of Charleston, 200 W. Va. 711, 490 S.E.2d 800
(1997) (footnote added).
11
In relevant part, West Virginia Code § 11A-3-59 provides “[i]f the real estate
described in the notice is not redeemed within the time specified therein . . . the deputy
commissioner shall, upon the request of the purchaser, make and deliver to the person
entitled thereto a quitclaim deed for such real estate . . . .”
12
W. Va. Code § 11A-3-59.
10
Mr. Rollyson declined to read into the statute a tolling of that thirty-day limitation for the
bankruptcy proceedings, Mr. Jones was left with no option but to file an action to compel
delivery of the deeds. In this context,13 a Section 60 Proceeding resolves only whether the
tax-sale purchaser is entitled to delivery of the deeds by examining the Deputy
Commissioner’s failure or refusal to deliver them.
By virtue of that limited inquiry, we agree that West Virginia Code § 11A-
3-60 does not contemplate notice to or participation of a delinquent taxpayer in an action
to compel issuance of a deed for property sold at a tax sale. The Legislature omitted the
delinquent taxpayer from Section 60 Proceedings in spite of the fact that until the time the
deed is executed, that delinquent taxpayer remains the owner of the property and retains
the right to redeem. It is plain in light of that omission that the Legislature did not
contemplate that a delinquent taxpayer would be party to a Section 60 Proceeding and that
the delinquent taxpayer’s presence is not necessary to give complete relief to the parties.
For those reasons, we conclude that Southland fails the first test for required joinder.
Likewise, from a practical standpoint, the limited scope of the issues
addressed in the Section 60 Proceeding did not require Southland’s participation nor did
the proceeding affect Southland’s interest in the property because Mr. Jones’s right to the
13
West Virginia Code § 11A-3-60 also affords a mechanism to compel the Deputy
Commissioner to prepare and serve notices to redeem if the Deputy Commissioner has
failed or refused to do so.
11
deeds had already accrued at the expiration of the redemption period. We have discussed
that “[t]itle to delinquent property that has been certified to the Auditor remains with the
owner until the tax lien is purchased from the Auditor’s deputy commissioner of delinquent
and nonentered lands and the tax lien purchaser has completed all the steps necessary to
secure a deed to the property.”14 And, here, Mr. Rollyson has certified that Mr. Jones has
satisfied all the steps necessary to secure deeds to the properties. Elapse of the statute’s
time limits—for which Mr. Jones bears no fault—alone barred immediate execution and
delivery of the deeds. It was undisputed that Mr. Jones’s right to the deeds had already
accrued. Thus, the Section 60 Proceeding, in this case, was limited to argument on the
applicability of the time limitation as opposed to Mr. Jones’s substantive right to the
properties.
Here, Mr. Rollyson refused to deliver the deeds without a court order
because he did not believe he was permitted to issue the deeds outside of the thirty-day
time frame. While Mr. Rollyson argued below that it was more appropriate to restart the
bidding process, the circuit court determined that even if the thirty days was not tolled by
the bankruptcy proceedings, West Virginia Code § 11A-3-60 provides that an action to
compel the deeds may be brought within six months of the date in which the right to the
deeds accrued and that that time frame had not yet expired as of the date of Mr. Jones’s
action to compel the deeds. Thus, to the extent that Southland contends it would have
14
Ancient Energy, Ltd. v. Ferguson, 239 W. Va. 723, 806 S.E.2d 154 (2017).
12
argued that the bidding process should restart, which would have given Southland
additional time to redeem, that argument was advanced by Mr. Rollyson and rejected by
the circuit court. Moreover, Southland’s additional contentions that it could have
challenged sufficiency of the notice or made other arguments to set aside the deed or the
tax sale are outside the scope of a Section 60 Proceeding. If Southland sought to challenge
notice or otherwise move to set aside the deed or the sale, the Legislature has provided a
separate statutory mechanism for such a challenge in West Virginia Code §§ 11A-4-3 and
-4.15
15
West Virginia Code § 11A-4-3 (2017) provides, in relevant part,
Whenever the deputy commissioner has delivered a deed to the
purchaser after the time specified in section fifty-nine [§ 11A-3-59] of article
three of this chapter, or within that time, has delivered a deed to a purchaser
who was not entitled thereto either because of his failure to meet the
requirements of section fifty-two [§11A-3-52] of said article three, or
because the property conveyed had been redeemed, the owner of such
property, his heirs and assigns, or the person who redeemed the property,
may, before the expiration of three years following the delivery of the deed,
institute a civil action to set aside the deed.
Further, West Virginia Code § 11A-4-4 provides, in relevant part,
If any person entitled to be notified under the provisions of section
twenty-two [§ 11A-3-22] or fifty-five [§ 11A-3-55], article three of this
chapter is not served with the notice as therein required, and does not have
actual knowledge that such notice has been given to others in time to protect
his interests by redeeming the property, he, his heirs and assigns, may, before
the expiration of three years following the delivery of the deed, institute a
civil action to set aside the deed.
13
Nevertheless, Southland argues that due process considerations render it an
indispensable party to the Section 60 Proceeding because West Virginia Code § 11A-3-56
grants the delinquent taxpayer the right to redeem at any time before the tax deed is issued:
After the sale of any tax lien on any real estate pursuant
to section forty-five [§ 11A-3-45] or forty-eight [§ 11A-3-48]
of this article, the owner of, or any other person who was
entitled to pay the taxes on, any real estate for which a tax lien
thereon was purchased by an individual, may redeem at any
time before a tax deed is issued therefor. . . .
Southland cites this Court’s prior decisions in Bonafede v. Grafton Feed & Storage Co.,16
United Fuel Gas Co. v. Morley Oil & Gas Co.,17 and O’Daniels v. City of Charleston,18 as
supporting its position that parties with an interest in real property are indispensable parties
to an action when that action directly affects its real property interests.19
In Bonafede, we examined a boundary dispute in which the holder of a
vendor’s lien on real property at issue was dismissed as a party.20 In reversing the circuit
court, we held that “[i]n a suit to cancel a cloud upon the title to real estate, all parties who
16
81 W. Va. 313, 94 S.E. 471 (1917).
17
101 W. Va. 73, 131 S.E. 713 (1926).
18
200 W. Va. 711, 490 S.E.2d 800 (1997).
19
See supra note 10.
20
Bonafede, 81 W. Va. at 314, 94 S.E. at 472.
14
have or claim any interest, right, or title under the instrument, or instruments, of writing
sought to be cancelled, should be made parties defendant.”21 Likewise, in United Fuel Gas
Co., we reversed a circuit court’s order for failure to join the Board of Education as the
successor in title in an action relating to a restrictive covenant on extraction of oil and gas
from land conveyed on the condition that it be “‘exclusively appropriated and used as a site
for a schoolhouse and school for and in said township.’”22 Finally, in O’Daniels, we
examined the propriety of a mandamus order requiring the City of Charleston to remove
fences constructed on the real property of persons not made party to the suit.23 We reversed
that order and remanded for inclusion of those property owners, reasoning that they were
indispensable parties and should have been added in order to defend their real property
interests.24 In using these cases as support, however, Southland blissfully ignores that the
nature of its interest in the properties at issue drastically differs from the property interests
analyzed in those three cases. Southland, of course, owned the delinquent properties until
21
Id. at syl. pt. 1.
22
United Fuel Gas Co., 101 W. Va. at 75, 131 S.E. at 714.
23
O’Daniels, 200 W. Va. at 715, 490 S.E.2d at 804.
24
Id.
15
such time as the deeds were delivered to Mr. Jones,25 but the nature of that ownership was
inextricably tied to, and was solely predicated upon, redemption of the properties.
Indeed, in actions to set aside a deed or a sale, redemption is a prerequisite
to the delinquent taxpayer’s reinstated property interest.26 In light of the limited scope of
a Section 60 Proceeding, the statutory language contemplating only the tax-sale purchaser
and the Deputy Commissioner as parties, and the availability of alternate remedies to set
aside the deed or the sale, we are disposed to that same conclusion. Exercise of the right
to redeem under West Virginia Code § 11A-3-56 is a condition precedent to asserting the
right to intervene in a proceeding under West Virginia Code § 11A-3-60 to compel issuance
of tax deeds to the tax-sale purchaser, for in the absence of an attempt to redeem the
25
See Mingo Cnty. Redevelopment Auth. v. Green, 207 W. Va. 486, 494 n.24, 534
S.E.2d 40, 48 n.24 (2000), in which we stated:
Prior to the changes made by the Legislature in 1994 the State actually
“purchased” the property if not sold at the tax sale, and the title to the land
passed to the State, essentially stripping the former owner of his or her
interest at that point in the process. Because of due process problems
inherent in such a scheme, now a sheriff is said to “certify” the property to
the Auditor, but title still rests with the (soon-to-be former) owner until the
deputy land commissioner conveys a deed at the end of the tax-sale process.
W. Va. Code § 11A-3-8 (1994).
26
West Virginia Code § 11A-4-3 provides that “[n]o deed shall be set aside
under the provisions of this section, except in the case of redemption . . . .” West
Virginia Code § 11A-4-4 likewise provides that “[n]o deed shall be set aside under
the provisions of this section until payment has been made or tendered to the
purchaser, or his heirs or assigns, of the amount which would have been required
for redemption . . . .”
16
property at issue, there is no property interest held by a delinquent taxpayer that could be
affected in the limited scope of a proceeding under that section. Of course, if the property
is redeemed, the Section 60 Proceeding may be moot, and, therefore, intervention
unnecessary, but we do not assume the ability to predict all of the various circumstances
that might render intervention by a now-redeemed taxpayer in a Section 60 Proceeding
necessary. What is clear in this case, however, is that because Southland made no attempt
whatsoever to redeem the properties, it does not, so to speak, have a dog in the fight of a
Section 60 Proceeding. Contrary to Southland’s assertions that it could have challenged
notice or other defects in the sale had it been granted intervenor status, a Section 60
Proceeding is not the battleground for a challenge to the propriety of the notice or the sale—
those challenges are preserved in other code sections and may be asserted in a separate
cause of action. Thus, in the absence of redemption, Southland’s nonjoinder in the Section
60 Proceeding does not impair its own claims, nor does it subject the Deputy Commissioner
and Mr. Jones to multiple or inconsistent obligations, and for that reason, Southland also
fails the second test for required joinder.
As we discussed in Mingo County Redevelopment Authority v. Green,
confidence in one’s title to land and the state’s interest in collecting taxes to function
properly cannot be understated:
We agree . . . 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.
17
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. As pointed out by the
Legislature:
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).27
But, as we also recognized in Redevelopment Authority, due process must be observed,
particularly since this area of law has undergone significant change, and “with each change
increasing the protections afforded the delinquent land owner.”28 The Legislature’s
statutory scheme, without doubt, is aimed at protecting the due process rights of a
delinquent land owner by requiring notice, ample redemption periods, and delineating
express causes of action in the event the deed was improperly obtained or the sale
improperly conducted.
27
Redevelopment Authority, 207 W. Va. at 491, 534 S.E.2d at 45 (footnote added).
Although in Redevelopment Authority we discussed the language in the 1994 version of
West Virginia Code § 11A-3-1, the statute has not changed since that time.
28
Id.
18
The Legislature’s enumerated purpose for the remedies of redemption and
corresponding rights and avenues to challenge the sale of tax-delinquent property is to
“provide reasonable opportunities for delinquent taxpayers to protect their interests in their
lands and to provide reasonable remedies in certain circumstances for persons with
interests in delinquent and escheated lands.”29 Southland had more than reasonable
opportunity to avail itself of the statutory remedy of redemption. The period was prolonged
by its bankruptcy filing, providing Southland more opportunity than most to redeem its
properties prior to delivery of the deeds. And yet, even as of the date it sought intervention
in the Section 60 Proceeding, and up until the date that the Deputy Commissioner executed
and delivered the deeds to Mr. Jones, Southland declined to simply pay its delinquent taxes
to redeem the property, instead endeavoring to endlessly prolong the redemption period.
In light of the protections and remedies afforded to Southland by the Legislature and
Southland’s declination to avail itself of those protections and remedies, we readily
conclude that Southland has not been deprived of due process of law by virtue of
nonjoinder in the Section 60 Proceeding.
Because Southland did not attempt to redeem at any time prior to or during
the pendency of the Section 60 Proceeding, we do not find that Southland’s interests in the
properties were affected by a proceeding that determined only whether the bidding process
should be restarted or whether immediate delivery of the deeds was appropriate.
29
W. Va. Code § 11A-4-1 (2017) (emphasis added).
19
Accordingly, we find that Southland was not an indispensable party to the proceeding and
the circuit court’s denial of Southland’s motion to intervene was not clearly erroneous as a
matter of law so as to merit issuance of a writ of prohibition. As discussed above,
Southland had the statutorily-created remedy of redemption of which it declined to avail
itself prior to delivery of the deeds. Looking forward, Southland also retains alternate
remedies under West Virginia Code §§ 11A-4-1 to -7 to set aside the deeds or the sale
within three years of delivery of the deeds. For those reasons, we deny the writ of
prohibition.
IV. CONCLUSION
Accordingly, we conclude that prohibition does not lie against the circuit
court for its failure to join Southland as an indispensable party. We therefore deny
Southland’s requested writ.
Writ denied.
20