                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Amy R. Rhoe, a/k/a Amy R. Wise,                                                 FILED
Petitioner, Petitioner Below
                                                                           November 18, 2016
                                                                               RORY L. PERRY II, CLERK
vs.) No. 15-1038 (Berkeley County 14-AA-9)                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Larry A. Hess, Assessor for Berkeley County,

West Virginia; Douglas E. Copenhaver, Jr.,

President, Berkeley County Council; and

Berkeley County Council;

Respondents, Respondents Below


                               MEMORANDUM DECISION

        Petitioner Amy R. Rhoe, a/k/a Amy R. Wise,1 pro se, appeals the August 17, 2015, order
of the Circuit Court of Berkeley County affirming the November 20, 2014, order of the Berkeley
County Council which upheld an increased tax assessment on petitioner’s real property for the
2014 tax year. Respondents Larry A. Hess, Assessor for Berkeley County, West Virginia; Douglas
E. Copenhaver, Jr., President, Berkeley County Council; and Berkeley County Council
(collectively “Assessor”), by counsel Norwood Bentley, III, filed a response.2

        The 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.

        Petitioner owns a residence and a small farm located on parcel 21 of map 21A, Hedgesville
District 04, Berkeley County, West Virginia.3 From at least 2005 through the 2013 tax year, there

       1
           Rhoe is petitioner’s married name.
       2
        Petitioner complains that Mr. Bentley does not have authority to represent all respondents
on the ground that he made an appearance only on behalf of the Assessor. However, petitioner
acknowledges that Mr. Bentley is the legal director for Berkeley County. Therefore, we find that
Mr. Bentley has the authority to represent all respondents.
       3
        According to the property card for petitioner’s property for the 2014 tax year, petitioner
(continued . . .)
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was a 48% downward adjustment on the valuation of petitioner’s real property based on a flood
influence factor. According to the Assessor, an “influence factor” constitutes “a factor serving to
either devalue or enhance the value of a particular parcel of land, or portions thereof, relative to the
norm for which the base unit values were established.” For purposes of establishing base unit
values, the Assessor defines petitioner’s neighborhood as all the properties along Wimpy’s Lane,
the road on which petitioner lives.

        As applied to the risk of flooding, an influence factor “is reserved for application to those
parcels subject to a loss of value due to the potential for periodic flooding when compared to
similar lots in the area where this problem does not exist.” Given that no other property along
Wimpy’s Lane had an adjustment based on a flood influence factor and the Assessor’s records
going back to 2005 did not reveal a reason as to why there was an adjustment regarding
petitioner’s real property based on such a factor,4 the Assessor eliminated the 48% downward
adjustment in his valuation of petitioner’s property for the 2014 tax year. The elimination of the
downward adjustment meant that the assessment for the 2014 tax year was $30,600, an increase of
$15,160 from the assessment for the 2013 tax year, raising petitioner’s property taxes by $112.92.
Accordingly, the Assessor sent petitioner a notice of increased assessment dated December 27,
2013. The notice informed petitioner that she could appeal the 2014 tax assessment to the Berkeley
County Council, sitting as the board of equalization and review (“board”), if she filed a written
protest with the Clerk of the Berkeley County Council by February 20, 2014. The notice listed the
board’s address and indicated that the board would hear appeals during February of 2014.

        Petitioner appealed the Assessor’s assessment for the 2014 tax year to the board. Following
a February 20, 2014, hearing, the board upheld the tax assessment. 5 Petitioner appealed the
board’s February 20, 2014, order to the Circuit Court of Berkeley County. By order entered
September 25, 2014, the circuit court found that a review of the recording of the February 20,
2014, hearing reflected discussion of exhibits not in the record before the court. Accordingly, the
circuit court remanded the case to the board pursuant to West Virginia Code § 11-3-25(c) “for the
purpose of developing an adequate record upon which the appeal can be decided.” The board held
the remand hearing on October 16, 2014. At that hearing, petitioner requested that the parties be
allowed to engage in discovery. The Assessor objected on the ground that the purpose of the


utilizes one acre for her residence and .41 acres as farmland.
       4
        The Assessor’s chief deputy, Brad Unger, testified at a November 13, 2014, hearing that
the records go back only to 2005 because that was the year during which the Assessor’s office
changed to a new computer system.
       5
        Petitioner complains that the board’s February 20, 2014, order was signed only by the
board’s president rather than by a quorum of the board. The Assessor counters that this issue has
been rendered moot given that the February 20, 2014, order was superseded by the board’s
November 20, 2014, order. We agree with the Assessor and find that we do not need to address this
issue.


                                                   2
remand from the circuit court was to allow the parties to enter their exhibits in the record so that the
court could consider petitioner’s appeal. The board ruled that, because petitioner was confused as
to the purpose of the remand, both parties would be provided with thirty days to prepare their
exhibits and rescheduled the hearing for November 13, 2014.6

         At the November 13, 2014, hearing, the parties entered their exhibits into the record and
were also permitted to present testimony of witnesses.7 The Assessor’s chief deputy, Brad Unger,
testified that an adjustment based on an influence factor was considered “outside the norm” and,
therefore, guidance from the West Virginia Tax Department indicates that the reason for any such
adjustment should be recorded. Mr. Unger searched the records and could not find any recorded
reason for the 48% downward adjustment on the valuation of petitioner’s real property. Mr. Unger
testified that no other property in petitioner’s neighborhood—even those properties, on the other
(western) side of Wimpy’s Lane, that were in a recognized floodplain—had an adjustment based
on a flood influence factor.8 Given that the placement of a flood influence factor on petitioner’s
property was “outside the norm” and the requirement under article ten, section one of the West
Virginia Constitution for uniform and equal taxation,9 Mr. Unger stated that the 48% downward
adjustment had to be taken off petitioner’s property in order to ensure uniform and equal taxation
in the Wimpy’s Lane neighborhood. In later testimony, the Assessor concurred with Mr. Unger
that the Assessor was required to eliminate the downward adjustment in his valuation of
petitioner’s property.

       The board requested that the Assessor introduce a topographical map of petitioner’s
neighborhood so that it could determine the elevations in that area. Petitioner objected on the
ground that a foundation needed to be laid for the map’s admission. Petitioner was allowed to
question Roger Kirkbright of the Assessor’s office as to the origin of the map. Following Mr.
Kirkbright’s testimony, petitioner withdrew her objection and the topographical map was admitted

       6
         On appeal, petitioner states that she was also confused as to the role in which the board
acted at the October 16, 2014, hearing because, by that time, the board was regularly sitting as the
board of assessment appeals rather than the board of equalization and review. However, given that
October 16, 2014, hearing was held pursuant to a remand following the board’s February 20, 2014,
order, we find that the board was acting in its capacity as the board of equalization and review.
       7
       Most of the testimony came from petitioner and the Assessor’s chief deputy, Brad Unger,
and was in support of the parties’ respective exhibits as each was introduced into evidence.
       8
        Mr. Unger testified that a flood influence factor was not used to make a downward
adjustment in the valuation of the properties on Wimpy’s Lane that were in the recognized
floodplain because those properties were instead valued at a lower rate in recognition of their
locations inside the floodplain.
       9
         Article ten, section one of the West Virginia Constitution provides, in pertinent part, that
“taxation shall be equal and uniform throughout the state, and all property, both real and personal,
shall be taxed in proportion to its value to be ascertained as directed by law.”

                                                   3
into evidence.

       By order entered November 20, 2014, the board upheld the Assessor’s assessment for the
2014 tax year based on Mr. Unger’s testimony. The board found, as follows:

                . . . Mr. Unger testified that he was unable to find any documented reason
       for the flood influence factor . . . to have been applied to the subject property and
       that its removal was done to make certain that the constitutional requirement of fair
       and equitable taxation [was met] in Berkeley County. The flood influence factor
       enjoyed by [p]etitioner was unfair and gave her an advantage over other property
       owners in the same neighborhood.

        According to the topographical map admitted into evidence, petitioner’s real property “is
not unique in its topography and is not influenced any differently than other properties in the
neighborhood.” (emphasis added). The board further found that, while “the very northwest corner”
of petitioner’s property may be encompassed by the floodplain that is located on the western side
of Wimpy’s Lane, the Berkeley County floodplain map, which was also admitted as an exhibit,
showed that the property had only 1% annual chance of flooding. Therefore, the board concluded,
as follows:

               . . . Petitioner failed to show by clear and convincing evidence that the
       Assessor’s assessment . . . was erroneous. The Assessor, on the other hand,
       presented a cogent, understandable case, compelling the [board] to be persuaded
       that the flood influence factor which was removed from consideration of the
       subject property should never have been applied to the property in the first
       instance[.]

        By order entered August 17, 2015, the circuit court affirmed the board’s November 20,
2014, order upholding the 2014 tax assessment on petitioner’s property. First, the circuit court
rejected petitioner’s contention that the December 27, 2013, notice of increased assessment was
constitutionally deficient because it did not contain an explanation of why the Assessor removed
the 48% downward adjustment on her real property. The circuit court held that, pursuant to this
Court’s decision in Lee Trace, LLC v. Raynes, 232 W.Va. 183, 191, 751 S.E.2d 703, 711 (2013), a
notice of increased assessment must sufficiently inform the taxpayer of her right to appeal the
assessment and that the notice in this case did so. Next, the circuit court determined that
petitioner’s due process rights were not violated by the denial of her request for discovery at the
October 16, 2014, hearing. Last, the circuit court ruled that the board afforded due process and a
fair hearing to petitioner. The circuit court specifically rejected petitioner’s contention that the
board was “somehow interested in unfairly treating [petitioner]” because some members may have
had experience in property development.

       Petitioner now appeals the circuit court’s August 17, 2015, order affirming the board’s
November 20, 2014, order upholding the 2014 tax assessment. In syllabus point one of In re Tax
Assessment of Foster Foundation’s Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d
150 (2008), we held that circuit court orders are reviewed under the following standard:
                                                 4
              “This Court reviews the circuit court’s final order and ultimate disposition
       under an abuse of discretion standard. We review challenges to findings of fact
       under a clearly erroneous standard; conclusions of law are reviewed de novo.”
       Syllabus point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

        On appeal, petitioner first complains that the Assessor’s attorney drafted the circuit court’s
August 17, 2015, order. We find such a complaint does not constitute a basis for reversal because
“we concern ourselves not with who prepared the findings for the circuit court, but with whether
the findings adopted by the circuit court accurately reflect the existing law and the trial record.”
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996).

        Next, petitioner contends that she was afforded due process by neither the circuit court nor
the board. “Due process of law is synonymous with fundamental fairness.” State ex rel. Peck v.
Goshorn, 162 W.Va. 420, 422, 249 S.E.2d 765, 766 (1978). With regard to the circuit court’s
September 25, 2014, remand to the board, petitioner alleges that the circuit court failed to give the
parties clear directions as to the remand’s purpose. We find that the circuit court provided clear
directions by quoting West Virginia Code § 11-3-25(c) in stating the remand was “for the purpose
of developing an adequate record upon which the appeal can be decided.” Moreover, to the extent
that petitioner was confused as to how she was to comply with the September 25, 2014, order, the
board provided petitioner with an additional thirty days to prepare her exhibits for introduction
into the record. Therefore, we conclude that the circuit court’s remand of the case comported with
due process of law.

       More generally, petitioner asserts that she was deprived of adequate notice and a fair
opportunity to be heard. See Peck, 162 W.Va. at 422, 249 S.E.2d at 766 (discussing two elements
comprising due process of law). With regard to the adequacy of the notice of increased assessment,
the Assessor argues that the notice complied with our directive in Lee Trace that such a notice
should sufficiently inform the taxpayer of her right to appeal the assessment. See 232 W.Va. at
191, 751 S.E.2d at 711. We agree and find that the notice of increased assessment in this case
comported with due process. Upon our viewing of the recordings of the October 16, 2014, and
November 13, 2014, hearings, we further reject petitioner’s contention that the board did not
provide her with a fair opportunity to be heard. As previously noted, when petitioner exhibited
some confusion as to how she was to proceed at the October 16, 2014, hearing, the board
rescheduled the hearing to give petitioner an additional thirty days to prepare her exhibits. At the
November 13, 2014, hearing, we find that the board attentively listened to petitioner’s testimony,
as evidenced by the board’s questions regarding her exhibits, and also permitted petitioner to
question Mr. Kirkbright as to the origin of the topographical map before allowing it into evidence.
Accordingly, we conclude that petitioner was afforded due process of law.10


       10
          To the extent that petitioner still makes the allegation that the board was “somehow
interested in unfairly treating [petitioner],” we concur in the circuit court’s rejection of this
allegation on the ground that it is unsubstantiated.

                                                  5
        Finally, petitioner challenges the Assessor’s increased assessment on her real property for
the 2014 tax year. Generally, an assessor’s valuation of property for taxation purposes are
presumed to be correct, and “[t]he burden of showing an assessment to be erroneous is . . .upon the
taxpayer[.]” Syl. Pt. 1, Western Pocahontas Properties, Ltd. v. County Commission of Wetzel
County, 189 W.Va. 322, 431 S.E.2d 661 (1993) (internal quotations and citations omitted). An
assessment approved by a board of review and equalization and upheld by the circuit court will not
be reversed “unless plainly wrong.” Syl. Pt. 3, id. at 322-23, 431 S.E.2d at 661-62 (internal
quotations and citations omitted). As to the taxpayer’s burden of proof, in syllabus point five of
Foster Foundation, we held that “[a] taxpayer challenging an assessor’s tax assessment must
prove by clear and convincing evidence that such tax assessment is erroneous.” 223 W.Va. at 16,
672 S.E.2d at 152, overruling, Eastern American Energy Corp. v. Thorn, 189 W.Va. 75, 428
S.E.2d 56 (1993), and Killen v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689
(1982).

        Petitioner contends that there was insufficient evidence to show that the Assessor correctly
eliminated the 48% downward adjustment on her property based on a flood influence factor. The
board found that, although the burden of proof was on petitioner, see Western Pocahontas, 189
W.Va. at 322, 431 S.E.2d at 661, syl. pt. 1, it was the Assessor who presented a compelling case
that “the flood influence factor which was removed from consideration of the subject property
should never have been applied to the property in the first instance.”

        Petitioner seeks to undermine the board’s conclusion that a flood influence factor should
never have been applied by attacking its finding that her property was neither “unique” nor
“influenced [by potential flooding] any differently than other properties in the neighborhood.”
First, petitioner asserts that her property is unique in the Wimpy’s Lane neighborhood because she
uses it as farmland. The Assessor counters that the fact that a portion of the property is farmland
was considered in the valuation of the property. We find that the Assessor took the categorization
of petitioner’s property into consideration because Mr. Unger testified that the portion of the
property used by petitioner as farmland was valued as such.

        Second, petitioner contends that it is not impossible that her property may be affected by a
flood event. We find that the board took this into account by finding that, while “the very
northwest corner” of petitioner’s property may be encompassed by the floodplain that is located on
the western side of Wimpy’s Lane, the Berkeley County floodplain map shows that the property
has only 1% annual chance of flooding. Based on our review of the record on appeal, we find that
the board’s determination is not plainly wrong. Therefore, we conclude that the board did not err in
finding that petitioner failed to meet her burden of showing that the Assessor incorrectly removed
the flood influence factor on her property and eliminated the 48% downward adjustment of the
property’s value in his assessment for the 2014 tax year.

       For the foregoing reasons, we affirm the August 17, 2015, order of the Circuit Court of
Berkeley County.

                                                                                         Affirmed.

                                                 6
ISSUED: November 18, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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