IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
_______________ February 6, 2013
released at 3:00 p.m.
No. 11-1398 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________
OF WEST VIRGINIA
POPE PROPERTIES / CHARLESTON
LIMITED LIABILITY COMPANY,
Petitioner
v.
THE HONORABLE SALLIE ROBINSON,
IN HER CAPACITY AS KANAWHA COUNTY ASSESSOR,
Respondent
Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Civil Action No. 11-AA-42
AFFIRMED
Submitted January 15, 2013
Filed: February 6, 2013
Mark A. Sadd, Esq. Karen Tracy McElhinny, Esq.
James C. Stebbins, Esq. Shuman, McCuskey & Slicer, PLLC
Lewis Glasser Casey & Rollins, PLLC Charleston, West Virginia
Charleston, West Virginia Stephen C. Sluss, Esq.
Counsel for the Petitioner Kanawha County Assessor’s Office
Charleston, West Virginia
Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘An assessment made by a board of review and equalization and approved by the
circuit court will not be reversed when supported by substantial evidence unless plainly wrong.’ Syl.
pt. 1, West Penn Power Co. v. Board of Review and Equalization, 112 W.Va. 442, 164 S.E. 862
(1932).” Syl. pt. 3, Western Pocahontas Properties v. County Commission of Wetzel County, 189
W.Va. 322, 431 S.E.2d 661 (1993).
2. “A taxpayer challenging an assessor’s tax assessment must prove by clear and
convincing evidence that such tax assessment is erroneous.” Syl. pt. 5, in part, In re: Tax Assessment
of Foster Foundation’s Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008).
3. In cases where a taxpayer challenges an ad valorem tax assessment, a circuit
court’s conclusions of law are reviewed by this Court de novo.
4. Non-owner-occupied Class III condominium units, owned by a corporation and
operated as income-producing property through the renting of the units as residential apartments,
constitute commercial property with respect to the valuation and assessment of ad valorem taxes.
5. “Title 110, series 1P of the West Virginia Code of State Rules confers upon the
State Tax Commissioner discretion in choosing and applying the most accurate method of appraising
commercial and industrial properties. The exercise of such discretion will not be disturbed upon
judicial review absent a showing of abuse of discretion.” Syl. pt. 5, In re: Tax Assessment Against
American Bituminous Power Partners, 208 W.Va. 250, 539 S.E.2d 757 (2000).
6. “When a circuit court reviews an appraisal of commercial real property made for
ad valorem taxation purposes, the court shall, in its final order, make findings of fact and
conclusions of law addressing the assessing officer’s consideration of the required appraisal factors
set forth in W.Va. C.S.R. §§ 110-1P-2.1.1. to 2.1.4. (1991).” Syl. pt. 7, Stone Brooke Limited
Partnership v. Sisinni, 224 W.Va. 691, 688 S.E.2d 300 (2009).
Ketchum, Justice:
This case is before this Court upon the appeal of Pope Properties / Charleston Limited
Liability Company (“Pope Properties”), from the September 20, 2011, order of the Circuit Court of
Kanawha County which affirmed the decision of the County Commission of Kanawha County sitting
as the Board of Equalization and Review. At issue is the valuation and corresponding tax
assessment of Pope Properties’ 79 condominium units located in a complex known as Country Club
Village Apartments. The Board of Equalization and Review upheld the determination of the
Assessor that for ad valorem tax purposes for 2011, the 79 units should be valued as follows:
$63,700 for each of Pope Properties’ 16 one-bedroom units and $70,000 for each of its 63 two-
bedroom units. Pope Properties contends that the valuations of the Assessor are incorrect and that,
instead, the 79 units should be valued at $42,000 for each of the 16 one-bedroom units and $49,000
for each of the 63 two-bedroom units.
The underlying disagreement between Pope Properties and the Assessor concerns the
Assessor’s use of the market data (comparable sales) approach in determining the value of the units,
rather than the income approach to valuation advocated by Pope Properties.
Upon careful review of the record-appendix, the briefs and argument of the parties, and
relevant authorities, this Court is of the opinion that Pope Properties has failed to establish that the
Assessor was erroneous by clear and convincing evidence. As discussed herein, although the
Assessor was mistaken in concluding that the 79 units, considered individually, were non
1
commercial in nature, that conclusion did not affect the validity of the Assessor’s choice, or manner
of application, of the market data approach in this case. Accordingly, the September 20, 2011, order
of the circuit court is affirmed.
I.
Factual and Procedural Background
The complex known as Country Club Village Apartments, initially constructed in 1979,
includes 102 condominiums, 79 of which were purchased by Pope Properties in the early 1990s.
Since the purchase, Pope Properties has operated its condominiums, consisting of 16 one-bedroom
units and 63 two-bedroom units, as income-producing rental property. The 79 units have never been
owner-occupied or held out for sale. Throughout the years, the Assessor has valued the 79 units
individually as Class III property. The rest of the condominiums in the complex, not belonging to
Pope Properties, are owner-occupied.1
For tax year 2011, the Assessor, using the market data (comparable sales) approach, valued
Pope Properties’ 79 condominiums at $63,700 for each of its 16 one-bedroom units and $70,000 for
each of its 63 two-bedroom units. Specifically, the Assessor looked at three recent sales of two
owner-occupied condominium units within the same complex, Country Club Village Apartments.
The sales, involving one and two-bedroom units, occurred between 2008 and 2010 and sold for
$64,000, $70,000 and $78,000.
1
For levy purposes, the 79 condominium units have been classified as Class III property,
thus subjecting the units to higher tax assessments than in the case of Class II owner-occupied
residential property.
2
Asserting that the valuations for tax year 2011 were substantially higher than the valuations
for the previous year, Pope Properties filed an application for relief before the County Commission
of Kanawha County sitting as the Board of Equalization and Review.
On February 22, 2011, the Board of Equalization and Review conducted an evidentiary
hearing. Joseph Pope, a manager of Pope Properties, testified on behalf of the taxpayer that, for
commercial lending purposes, the income approach to valuation, rather than the market approach,
is used insofar as Pope Properties’ units are financed in the aggregate, and consolidated profit and
loss statements are considered. Following that testimony, Pope Properties called Stephen A.
Holmes, a certified real estate appraiser. Holmes stated that the 79 units constituted commercial
property which, using the income approach, should be valued for tax year 2011 at $42,000 for each
of the 16 one-bedroom units and $49,000 for each of the 63 two-bedroom units.
Holmes testified that he considered the three traditional approaches to appraising real
property, i.e., cost, market data (comparable sales) and income. He rejected the cost approach on
the basis that the Country Club Village Apartments was too old for that approach to be meaningful.
Holmes also rejected the market data approach because the three sales relied on by the Assessor were
owner-occupied units. In that regard, Holmes stated that it was improper for the Assessor to use the
sale of Class II property in appraising Class III commercial parcels. Thus, according to Holmes, the
income approach was the most appropriate method of appraising the 79 units, especially since Pope
Properties had operated the units exclusively as income-producing units throughout the years.
3
Stephen Duffield, Chief Deputy Assessor, testified, however, that Pope Properties’ 79
condominium units did not constitute commercial property when viewed as separate units rented to
individuals. In any event, according to Duffield, the market data approach was the appropriate
method to value the 79 units since the three comparable sales used by the Assessor were within the
same condominium complex. With regard to the income approach advocated by Pope Properties,
Duffield acknowledged:
Q. And, Mr. Duffield, one thing I want to make clear for the record, you are
not saying that you could not use the income approach if it were appropriate in a
condominium situation. If it were deemed to be appropriate, you could use the
income approach.
A. If it were deemed to be appropriate, yes, I could use it.
Following the hearing, the Board of Equalization and Review issued a written decision
upholding the Assessor’s valuation of the 79 condominium units for tax year 2011. The decision
stated that Pope Properties failed to prove by clear and convincing evidence: (1) that the Assessor
abused her discretion in using the market data approach or (2) that the valuation of the units, thus
determined, was incorrect.
Pope Properties appealed the decision to the Circuit Court of Kanawha County. See, W.Va.
Code, 11-3-25 [1967] (authorizing an appeal to circuit court by a taxpayer claiming to be aggrieved
by an erroneous assessment).2 In its petition, Pope Properties alleged that the 79 condominium units
2
In re: Tax Assessment Against American Bituminous Power Partners, 208 W.Va. 250,
255, 539 S.E.2d 757, 762 (2000), observes that judicial review by a circuit court of the decision
of a board of equalization and review regarding a challenged tax assessment is limited to roughly
the same scope permitted under the contested cases section of the State Administrative
4
are commercial parcels that should have been valued under the income approach to real estate
appraisal.
The circuit court entered an order on September 20, 2011, affirming the decision of the
County Commission sitting as the Board of Equalization and Review. The order stated that the
Assessor, upon considering all three approaches to valuation, determined that the market data
approach was the appropriate method to value the 79 condominium units. Specifically, the order
stated:
The Kanawha County Assessor had more than ample evidence that the market
data approach was appropriate. The Assessor had the sales prices of nearly identical
units in the very same building in unforced sales during an arms-length transaction
between willing buyers and sellers to use in determining the value of Pope
Properties’ property. Therefore, the Court concludes that Pope Properties failed to
demonstrate by clear and convincing evidence that the Kanawha County Assessor
erroneously valued the subject 79 condominium units and that the Assessor properly
exercised her discretion in using the market data approach to value said units.3
Pope Properties’ appeal to this Court followed.
Procedures Act, i.e., W.Va. Code, 29A-5-4(g) [1998].
3
In so ruling, the circuit court found no merit in Pope Properties’ assertion that the sales
of the comparable units were inapplicable because they were Class II, owner-occupied property.
The circuit court observed that the primary difference between Class II and Class III property is
whether the property is or is not owner-occupied, which directly impacts the tax levy, rather than
the value of the property. See, W.Va. Code, 11-8-5 [1961].
5
II.
Standard of Review
As stated in Kline v. McCloud, 174 W.Va. 369, 371, 326 S.E.2d 715, 717 (1984), this Court
utilizes “a two-pronged inquiry” in reviewing tax assessment cases, i.e., whether the evidence
supports the findings below and whether there was an error of law.
It follows, therefore, that, in the absence of allegations of constitutional or statutory
violations, appellate review of an assessment for ad valorem tax purposes is largely fact-driven.
Syllabus point 3 of Western Pocahontas Properties v. County Commission of Wetzel County, 189
W.Va. 322, 431 S.E.2d 661 (1993), holds: “‘An assessment made by a board of review and
equalization and approved by the circuit court will not be reversed when supported by substantial
evidence unless plainly wrong.’ Syl. pt. 1, West Penn Power Co. v. Board of Review and
Equalization, 112 W.Va. 442, 164 S.E. 862 (1932).” Further guidance in fact-driven assessment
cases is found in syllabus point 5 of In re: Tax Assessment of Foster Foundation’s Woodlands
Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008), which states, in part: “A taxpayer
challenging an assessor’s tax assessment must prove by clear and convincing evidence that such tax
assessment is erroneous.” In accord, syl. pt. 2, Century Aluminum of West Virginia v. Jackson
County Commission, 229 W.Va. 215, 728 S.E.2d 99 (2012) (indicating that the burden is on the
taxpayer to demonstrate by clear and convincing evidence that the assessment is erroneous).
On the other hand, this Court has said, and we so hold, that in cases where a taxpayer
challenges an ad valorem tax assessment, a circuit court’s conclusions of law are reviewed by this
6
Court de novo. Syl. pt. 1, Mountain America v. Huffman, 224 W.Va. 669, 687 S.E.2d 768 (2009),
cert. denied, 559 U.S. _ , 130 S.Ct. 2377, 176 L.Ed.2d 785 (2010). See also, syl. pts. 1 and 2, In re:
Tax Assessment of Foster Foundation’s Woodlands Retirement Community, supra.
III.
Discussion
According to Pope Properties, Country Club Village Apartments was converted decades ago
from ordinary fee simple ownership to a condominium form of ownership under the West Virginia
Unit Property Act, W.Va. Code, 36A-1-1 [1963], et seq. The Act provides, in W.Va. Code, 36A-4-5
[1963], that: “Units may be sold, conveyed, mortgaged, leased or otherwise dealt with in the same
manner as like dealings are conducted with respect to real property and interests therein.”4 Pursuant
to W.Va. Code, 36A-6-1 [1963], the property can be removed from the provisions of the Act by
revocation.
With regard to assessments and taxes, W.Va. Code, 36A-7-1 [1963], of the Unit Property Act
provides:
Each unit and its proportionate undivided interest in the common elements
as determined by the declaration and any amendments thereof shall be assessed and
taxed for all purposes as a separate parcel of real estate entirely independent of the
building or property of which the unit is a part. Neither the building, the property nor
any of the common elements shall be assessed or taxed separately after the
declaration and declaration plan are recorded, nor shall the same be subject to
assessment or taxation, except as the units and their proportionate undivided interests
4
The term “unit” is defined in W.Va. Code, 36A-1-2(n) [1963], as “a part of the property
designed or intended for any type of independent use[.]”
7
in the common elements are assessed and taxed pursuant to the provisions of this
article.
(emphasis added).5
In the current matter, this Court finds merit in Pope Properties’ assertion that the Assessor
incorrectly determined the 79 condominium units to be non-commercial. Although the units
constituted residences rented to individuals, they were owned by the corporate taxpayer, Pope
Properties, and consistently operated as income-producing property. There is no dispute in the
record that, since the purchase of the units by Pope Properties in the early 1990s, the units were
never owner-occupied or held out for sale. Although the 79 units could be sold by Pope Properties
separately, or in groups, in the future, the status of the units during tax year 2011 as Class III non
owner-occupied property remained unchanged.
5
The definition of “condominium” is not found in the Unit Property Act. Instead, it is
found in the adjoining chapter, W.Va. Code, 36B-1-101 [1986], et seq., known as the West
Virginia Uniform Common Interest Ownership Act. In W.Va. Code, 36B-1-103(8) [1998],
thereof, “condominium” is defined as:
a common interest community in which portions of the real estate are designated
for separate ownership and the remainder of the real estate is designated for
common ownership solely by the owners of those portions. A common interest
community is not a condominium unless the undivided interest in the common
elements are vested in the unit owners.
The term “unit” is defined in W.Va. Code, 36B-1-103(33) [1998], as “a physical portion
of the common interest community designated for separate ownership or occupancy[.]”
Moreover, as in the Unit Property Act, the Uniform Common Interest Ownership Act includes
statutes pertaining to the separate assessment and taxation of “each unit,” W.Va. Code, 36B-1
105 [1986]; the application of “the law of real property,” W.Va. Code, 36B-1-108 [1986]; and the
ability to terminate the common interest community, W.Va. Code, 36B-2-118(a) [1986].
8
Moreover, the prior conversion of Country Club Village Apartments from ordinary fee simple
ownership to a condominium form of ownership under the Unit Property Act is not dispositive. The
units have never been anything to the taxpayer, Pope Properties, other than rental units in the nature
of an apartment complex. The ownership of the 79 units as condominiums does not alter the fact
that each unit has been a non-owner-occupied, income-producing parcel. The units are, therefore,
commercial property. In the West Virginia Code of State Rules, “commercial property” is defined
as meaning “income producing real property used primarily but not exclusively for the sale of goods
or services, including but not limited to offices, warehouses, retail stores, apartment buildings,
restaurants and motels.” W.Va. C.S.R., 110-1P-2.3.3. (1991).6
Consequently, this Court holds that non-owner-occupied Class III condominium units, owned
by a corporation and operated as income-producing property through the renting of the units as
residential apartments, constitute commercial property with respect to the valuation and assessment
of ad valorem taxes.
However, the fact that the 79 condominium units owned by Pope Properties constituted
commercial property in 2011 does not mandate that the units be valued under the income approach
6
Although this Court concludes that the 79 units owned and operated by Pope Properties
constituted commercial property for purposes of 2011 ad valorem taxation, we recognize that the
units have both commercial and residential characteristics. As Pope Properties correctly states:
Apartment buildings can be both “residential” and “commercial” to the
extent that the apartments are leased to the people who reside there. [Pope
Properties’] condominium apartments are no different in that they have always
been income-producing, and [Pope Properties] has always leased them to other
people as places to reside.
9
as a matter of law. The above definition of “commercial property” is found in Title 110 of the West
Virginia Code of State Rules which sets forth legislative rules pertaining to taxation. Series 1P of
Title 110 is entitled “Valuation of Commercial and Industrial Real and Personal Property for Ad
Valorem Property Tax Purposes,” and W.Va. C.S.R. 110-1P-2.2.1.(1991), states that, in determining
an estimate of fair market value, three generally accepted approaches to value will be considered and
used, where applicable: “(A) cost, (B) income, and (C) market data.” See, The Appraisal of Real
Estate 63 (American Institute of Real Estate Appraisers, 4th ed. 1964), discussing in detail the three
standard approaches to valuation. Moreover, in W.Va. C.S.R. 110-1P- 2.1.1. to § 2.1.4. (1991), a
number of additional factors are listed for consideration in the valuation of property used for
commercial or industrial purposes.7
The selection and application of the cost, income or market data approach, as appropriate in
the valuation of commercial property, are within the discretion of the assessor. Stone Brooke Limited
Partnership v. Sisinni, 224 W.Va. 691, 701, 688 S.E.2d 300, 310 (2009). In that regard, syllabus
point 5 of In re: Tax Assessment Against American Bituminous Power Partners, supra, holds:
Title 110, series 1P of the West Virginia Code of State Rules confers upon the
State Tax Commissioner discretion in choosing and applying the most accurate
7
The factors listed in W.Va. C.S.R. 110-1P-2.1.1. to 2.1.4. (1991), include: the location,
size, characteristics and condition of the property; the previous purchase price and ease of
alienation; any methods of ascertaining value peculiar to the property; improvements to the land
or improvements in the form of buildings or structures; and other considerations, such as
topography and accessibility and the value of the property to its owner. Moreover, the factors
include considerations suggestive of both the income and market data (comparable sales)
approaches, i.e., the recent sale of, or other transactions involving, comparable property, W.Va.
C.S.R. 110-1P-2.1.1.6. (1991), and the income, if any, which the property actually produces and
has produced within the next preceding three years, W.Va. C.S.R. 110-1P-2.1.1.9. (1991).
10
method of appraising commercial and industrial properties. The exercise of such
discretion will not be disturbed upon judicial review absent a showing of abuse of
discretion.
See also, 84 C.J.S. Taxation § 575 (2010) (Within limits of fairness, “assessors and taxing authority”
have discretion in choosing and applying the most accurate method of appraising properties.).
Stone Brooke involved three consolidated appeals wherein the taxpayers challenged the
valuation of their low income housing, multi-unit, apartment buildings. The assessors used the cost
approach to determine the value of the properties for ad valorem tax purposes. The taxpayers
maintained, however, that the income approach should have been used because that approach was
the only appropriate method to ascertain the value of the subject properties, especially since the
apartment buildings were within the federal Low Income Housing Tax Credits program.
This Court, in Stone Brooke, recognizing an assessor’s discretion to choose and apply the
most accurate method of appraising commercial property, expressed its reluctance to conclude that
the income approach asserted by the taxpayers was the only appropriate approach to be used.
Moreover, this Court determined that the assessors’ cost approach valuations were supported by
substantial evidence and, therefore, were not plainly wrong.
Nevertheless, although upholding the application of the cost approach, this Court in Stone
Brooke reversed and remanded the cases, in part, for an analysis of whether the assessors properly
considered the additional factors set forth in W.Va. C.S.R. 110-1P-2.1.1. to 2.1.4. (1991), for the
11
valuation of commercial real property. See, n. 7, supra. In that regard, to facilitate future appellate
review, syllabus point 7 of Stone Brooke holds:
When a circuit court reviews an appraisal of commercial real property made
for ad valorem taxation purposes, the court shall, in its final order, make findings of
fact and conclusions of law addressing the assessing officer’s consideration of the
required appraisal factors set forth in W.Va. C.S.R. §§ 110-1P-2.1.1. to 2.1.4. (1991).
In the case now before us, the circuit court’s September 20, 2011, order contained findings
of fact and conclusions of law and stated that the Assessor, upon considering all three approaches,
selected the market data (comparable sales) approach as the appropriate method to value the 79 units.
The order specifically stated: “The Assessor had the sales prices of nearly identical units in the very
same building in unforced sales during an arms-length transaction between willing buyers and sellers
to use in determining the value of Pope Properties’ property.” In addition, the order indicated that,
based on the testimony before the Board, the Assessor considered the various approaches, “as well
as other factors contained in W.Va. C.S.R. § 110-1P-2.1.1., before ultimately determining that the
market data approach was the appropriate method to use to value the 79 condominiums.”
Moreover, the circuit court recognized the provisions of W.Va. Code, 36A-7-1 [1963], of the
Unit Property Act which require that each unit, and its proportionate undivided interest in the
common elements, “be assessed and taxed for all purposes as a separate parcel of real estate entirely
independent of the building or property of which the unit is a part.” The Assessor’s documents of
record in this case show a separate listing, an identifying number, and a “2011 Assessed Value” for
each of the 79 units, thus evidencing compliance with the statute.
12
The requirement that each unit be assessed and taxed as a separate parcel, however, does not
mandate which of the three approaches, cost, income or market data (comparable sales), must be
selected by an assessor in appraising commercial real property for ad valorem tax purposes. The
discretion remains with the assessor, subject to the standards of review discussed above.8 Here, as
in Stone Brooke, this Court is of the opinion that the Assessor’s approach to valuation was supported
by substantial evidence and was not plainly wrong. Using the market data approach, the Assessor
valued the 79 condominiums at $63,700 for each of its 16 one-bedroom units and $70,000 for each
of its 63 two-bedroom units. The Assessor looked at three sales of two owner-occupied
condominium units within the same complex, Country Club Village Apartments. The sales,
involving one and two-bedroom units, of comparable age and size to the 79 units, occurred between
2008 and 2010 and sold for $64,000, $70,000 and $78,000. As explained by the circuit court, the
Class II versus Class III distinction was not preclusive of the market data approach. See, n. 3, supra.
Fundamentally, in challenging an assessor’s ad valorem tax valuation, the submission by the
taxpayer of an alternative valuation is not enough. As this Court confirmed in syllabus point 9 of
Mountain America, supra, there is a presumption that valuations for taxation purposes fixed by an
assessor are correct. The taxpayer must prove that an error has been made. In this case, the circuit
court found the valuation of Stephen A. Holmes, Pope Properties’ expert appraiser, to be
problematic. As reflected in the September 20, 2011, order, the circuit court noted that Holmes
8
We have stated herein that Pope Properties is unwarranted in asserting that the income
approach is the sole method for determining the value of its 79 condominium units. Similarly,
the Assessor may not claim that the market data (comparable sales) approach is the sole method
to be used. The appropriate method may change from time to time in varying circumstances.
Thus, an assessor’s duty to exercise sound discretion arises each tax year.
13
failed to provide the Board of Equalization and Review sufficient information to fully understand
his income approach in valuing the 79 units. Moreover, the order stated:
The only reason presented by Mr. Holmes as to why he “suspected” that the
value of the owner-occupied condominium units would be different than the
identical units that had been rental property is that “if you put all seventy-nine
units on the market at the same time, I suspect that the value of the units individually
would change.” However, neither Pope Properties nor its retained appraiser
presented any testimony suggesting that there is any statute or regulation that
would have forced Pope Properties to sell all seventy-nine units as a collective
unit, instead of separately.
The circuit court’s conclusion in the latter regard is correct. As noted above, W.Va. Code,
36A-4-5 [1963], of the Unit Property Act states: “Units may be sold, conveyed, mortgaged, leased
or otherwise dealt with in the same manner as like dealings are conducted with respect to real
property and interests therein.” Also, pursuant to W.Va. Code, 36A-6-1 [1963], the property can be
removed from the provisions of the Act by revocation.
IV.
Conclusion
For the reasons expressed above, although the Assessor was mistaken in concluding that
Pope Properties’ 79 units were non-commercial in nature, that conclusion did not affect the validity
of the Assessor’s choice, or manner of application, of the market data approach in this case. In
upholding the Assessor’s valuation and affirming the decision of the County Commission sitting as
14
the Board of Equalization and Review, the Circuit Court of Kanawha County properly determined
that Pope Properties failed to demonstrate by clear and convincing evidence that the valuations and
corresponding assessments for tax year 2011 were erroneous. Accordingly, the September 20, 2011,
order of the circuit court is affirmed.
Affirmed.
15