FOSTER FOUNDATION v. Gainer

717 S.E.2d 883, 228 W. Va. 99, 2011 W. Va. LEXIS 14
CourtWest Virginia Supreme Court
DecidedMarch 10, 2011
Docket35627
StatusPublished
Cited by17 cases

This text of 717 S.E.2d 883 (FOSTER FOUNDATION v. Gainer) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FOSTER FOUNDATION v. Gainer, 717 S.E.2d 883, 228 W. Va. 99, 2011 W. Va. LEXIS 14 (W. Va. 2011).

Opinions

DAVIS, Justice:

The petitioner herein, Foster Foundation (hereinafter referred to as “the Foundation”), requests this Court to issue a writ of certiorari to relieve it from a decision rendered August 14, 2009, by the respondent herein, the Court of Claims of the State of West Virginia (hereinafter referred to as “the Court of Claims”). In that opinion, the Court of Claims denied the Foundation’s claim for reimbursement of $457,386.79 in certification fees charged by the co-respondent herein, Glen B. Gainer, III, Auditor of the State of West Virginia (hereinafter referred to as “the Auditor”), in conjunction with the Foundation’s redemption of its delinquent property. Before this Court, the Foundation contends that the Auditor improperly charged it the subject certification fees when its property had not been certified to the Auditor pursuant to W.Va.Code § 11A-3-8 (2010) (Repl.Vol.2010).1 Upon a review of the parties’ arguments, the designated record, and the pertinent authorities, we deny the requested writ of certiorari because the Auditor did not err by requiring the Foundation to pay the subject certification fee to redeem its property.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant controversy are not disputed by the parties. The Foster Foundation is a § 501(c)(3) non-profit organization2 that owns and operates a retirement community in Huntington, West Virginia, which provides services for persons living independently, requiring assistance, or needing nursing care.3 Until 1998, the Foster Foundation had been exempt from ad valorem property taxes with respect to the properties it owns in Cabell County, West Virginia. Changes in the state statutes concerning what properties are exempt from taxation, however, caused the Cabell County Assessor to assess taxes on the Foundation’s property for the 1998 tax year. The Foundation challenged these assessments, claiming that it still was exempt.

In this regard, the Foundation filed a lawsuit in the Circuit Court of Cabell County against the Cabell County Assessor (hereinafter referred to as “the Assessor”) on March 26, 1998; the Foundation did not, however, pay its assessed taxes. Thereafter, on November 2, 1998, the Foundation, the Assessor, the Cabell County Sheriff (hereinafter referred to as “the Sheriff’), and the West Virginia State Tax Commissioner executed an agreed order, which then was entered by the circuit court, whereby “[ajll parties agree that the sale of property owned by Foster Foundation should not be part of any sale by the Sheriff of Cabell County until such time as the Circuit Court of Cabell County has ruled on whether Foster Foundation is exempt from ad valorem property tax.” Following protracted litigation, which included two appeals to this Court, the circuit court concluded that the Foundation was not exempt from ad valorem property tax and, thus, was required to pay the taxes that had been assessed on its property. This final decision of the Circuit Court of Cabell County was entered on December 7,2005.

During the ongoing proceedings, the Sheriff prepared a list of properties that had been sold, suspended, or redeemed, as required by W.Va.Code § 11A-3-9 (2010) (Repl.Vol.2010) & W.Va.Code § 11A-3-11 (2010) (Repl.Vol.[103]*1032010), and transmitted this list to the Clerk of the Cabell County Commission (hereinafter referred to as “the Clerk”). In turn, the clerk submitted this list to the Auditor pursuant to the statute’s directive to do so. See id. Thus, the Foundation’s now-delinquent property ultimately was transferred to the Auditor, at which time certification fees attached and were required to be paid before the property could be redeemed. See W.Va. Code § 11A-3-39(a) (1994) (Repl.Vol.2010). The Sheriff prepared the aforementioned delinquent land list and included the Foundation’s property thereon for each of the tax years for which the Foundation failed to pay its taxes, i. e., 1998 through 2005.

Upon the conclusion of the underlying litigation, the Foster Foundation owed property taxes that had been assessed to it, but that it had not paid, for tax years 1998, 1999, 2000, 2001, 2002, 2003, 2004, and 2005. Although the Foundation claims that it did not know that its property had been certified to the Auditor during the pendency of its lawsuit, records maintained by the Auditor indicate that the Foundation contacted the Auditor’s Office numerous times, beginning in 2001 and ending in 2006, to inquire about the amount required to redeem its property. On May 25, 2006, the Foundation redeemed all of its properties by paying to the Auditor a total of $6,555,877.29. Of this amount, $4,303,399.97 constituted the unpaid taxes for the aforementioned tax years; $1,794,148.03 had been assessed as interest on the delinquent taxes; $942.50 reflected publication fees; and $457,386.79 were certification fees that attached to the delinquent property upon its transfer to the Auditor’s control. It is this $457,386.79 in certification fees that is the subject of the instant proceeding.

Following payment of these monies to the Auditor in redemption of its property, the Foundation filed suit in the Circuit Court of Cabell County on September 11, 2006, against the Sheriff and the Auditor to recover the interest, publication fees, and certification fees that it had paid to the Auditor. In short, the Foundation claimed that its property had not been certified properly to the Auditor and, thus, should not have incurred such fees. Following the parties’ various motions, the circuit court, on April 17, 2007, determined that venue was not proper in Cabell County insofar as the action had been filed against a state entity, i.e. the Auditor; accordingly, the circuit court transferred the matter to the Circuit Court of Kanawha County. The Kanawha County Circuit Court, by order entered September 13, 2007, then determined that venue was not proper in Kanawha County, either, insofar as the Foundation’s request for reimbursement of monies is a matter to be decided by the Court of Claims.

Following the Kanawha County court’s dismissal of its suit, the Foundation filed the instant claim in the Court of Claims on December 6, 2007, against the Auditor, again seeking to recover the interest, publication fees, and certification fees it had paid in the redemption of its property. By opinion issued August 14, 2009, the Court of Claims rejected the Foundation’s claim, finding that the Foundation’s delinquent property had properly been transferred to the Auditor through the Sheriffs list of sold, suspended, and redeemed properties required to be prepared and submitted by W.Va.Code § 11A-3-9 & W.Va.Code § 11A-3-11. The Foundation moved the Court of Claims for rehearing of its decision, which motion was denied on October 15, 2009.

From these adverse rulings, the Foundation seeks a writ of certiorari from this Court. Although it had requested relief from the accrued interest, publication fees, and certification fees it had paid to redeem its property during its previous challenges to the propriety of these amounts, the Foundation limits its request for relief from this Court and seeks reimbursement only of the $457,386.79 in certification fees charged by the Auditor.

II.

STANDARD FOR ISSUANCE OF WRIT

The instant proceeding is before this Court upon a petition for writ of certiorari from the Court of Claims. A petition for a writ of certiorari invokes this Court’s original jurisdiction. See W.Va. Const. art.

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FOSTER FOUNDATION v. Gainer
717 S.E.2d 883 (West Virginia Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
717 S.E.2d 883, 228 W. Va. 99, 2011 W. Va. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-foundation-v-gainer-wva-2011.