No. 17-0934 – SER Southland Properties, LLC v. Hon. David R. Janes, Judge, et al.

                                                                                               FILED
                                                                                            March 9, 2018
                                                                                               released at 3:00 p.m.
                                                                                           EDYTHE NASH GAISER, CLERK
Justice Ketchum dissenting:                                                                SUPREME COURT OF APPEALS
                                                                                                OF WEST VIRGINIA


                             Southland should have been permitted to intervene in the lawsuit because it

owned the two parcels of real estate at issue. This Court has consistently held that a

property owner whose property rights or interests may be affected by a lawsuit should be

permitted to intervene. Because Southland has asserted a number of ways the lawsuit

could affect its interest in the two parcels of real estate, I disagree with the majority

opinion’s ruling.

                             Kenneth Jones purchased two parcels of real estate at a delinquent tax sale.

The real estate was owned by Southland. After Southland’s bankruptcy petition was

dismissed,1 Purchaser Jones attempted to compel delivery of the tax deeds through a

lawsuit in circuit court against the Deputy Commissioner of Delinquent and Non-entered

Lands (“Deputy Commissioner”). Southland was not named as a party in this lawsuit.

Therefore, Southland filed a motion to intervene, which the circuit court denied. After

the circuit court’s denial of its motion to intervene, Southland filed the present writ.

                              I would grant Southland’s writ under the third Hoover factor because the

circuit court’s order was “clearly erroneous as a matter of law.” See Syllabus Point 4,

State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). Southland owned

the real estate at issue and retained the right to pay the delinquent taxes and redeem it

                                                            
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                  For a complete recitation of the procedural history, see the majority opinion.
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when it filed its motion to intervene. While the property was the subject of a delinquent

tax sale, this Court has recognized 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.” Ancient

Energy, Ltd. v. Ferguson, 239 W.Va. 723, ___, 806 S.E.2d 154, 159 (2017) (emphasis

added). Thus, Southland owned the property when it attempted to intervene in the

lawsuit.

              Our law is clear that a property owner may intervene in a lawsuit

concerning his/her property. In Syllabus Point 2 of O’Daniels v. City of Charleston, 200

W.Va. 711, 490 S.E.2d 800 (1997), this Court held: “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.”

(Emphasis added). See also Bonafede v. Grafton Feed & Storage Co., 81 W.Va. 313, 94

S.E. 471 (1917), and United Fuel Gas Co. v. Morley Oil & Gas Co., 101 W.Va. 73, 131

S.E. 713 (1926). This well-established law can be found in a number of cases outside of

our jurisdiction. See Wacker Oil, Inc. v. LoneTree Energy, Inc., 459 N.W.2d 381, 383

(N.D. 1990) (“[I]n an action to quiet title all persons appearing of record to have a

possible claim or interest in the land involved should be made parties.”); Silvas v.

Remington Oil and Gas Corp., 109 Fed. Appx. 676, 677-78 (5th Cir. 2004) (“[N]o decree

can be entered affecting the title to property or cancelling any cloud thereon unless all of

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the parties interested in the title or in the particular cloud and who will be directly

affected by any judgment that may be rendered are properly before the court.”).

               Additionally, under Rule 24 of the West Virginia Rules of Civil Procedure,

a property owner, upon timely application, “shall be permitted to intervene in an action: .

. . 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.” Because

Southland’s exclusion from the lawsuit could impair its ability to protect its interest in the

property, it should have been allowed to intervene.

               Further, according to Rule 19 of the West Virginia Rules of Civil

Procedure: “A person who is subject to service of process shall be joined as a party in the

action if . . . (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[.]”

               Southland asserted a number of arguments it could have raised in the circuit

court to protect its interest in the property:

               Southland could have demanded that the circuit court observe
               the governmental agency’s adherence to its requirements
               requiring the notice process to restart. Southland could have
               argued that the circuit court require proof that the statutorily
               prescribed notice procedures had been fully complied with by
               Jones. Southland could have argued that no consideration
               was provided for the property since the Deputy
               Commissioner had order[ed] the Marion County Sheriff to
               return the funds paid. Considering the delay caused by these

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                             reasonable defenses, Southland could have, in the interim,
                             conveyed the subject property and paid its delinquent taxes.

                              Despite Southland’s arguments to the contrary, the majority opinion

determined that Southland’s property interest could not be affected “in light of the limited

scope of a Section 60 [W.Va. Code § 11A-3-60] 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[.]” I disagree with

the majority’s conclusion.

                             West Virginia Code § 11A-3-60 [1995] does not directly address whether a

tax-delinquent property owner, like Southland, may intervene in a proceeding under this

section. However, reading W.Va. Code § 11A-3-60 in pari materia2 with the rest of our

law on tax-delinquent property, W.Va. Code § 11A-3-1 [1994] et seq., reveals that

Southland should have been permitted to intervene in this proceeding.

                                                            
              2
         We long have held that statutes pertaining to the same subject matter must be
read in pari materia:
                      Statutes which relate to the same persons or things, or
              to the same class of persons or things, or statutes which have
              a common purpose will be regarded in pari materia to assure
              recognition and implementation of the legislative intent.
              Accordingly, a court should not limit its consideration to any
              single part, provision, section, sentence, phrase or word, but
              rather review the act or statute in its entirety to ascertain
              legislative intent properly.

Syllabus Point 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14,
217 S.E.2d 907 (1975). See also Syllabus Point 3, Smith v. State Workmen’s Comp.
Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“Statues which relate to the same
subject matter should be read and applied together so that the Legislature's intention can
be gathered from the whole of the enactments.”).
 

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             Our legislature has stated that one of the purposes of our law on tax-

delinquent property is to provide “owners of real property . . . adequate notice and an

opportunity for redemption before they are divested of their interests in real property for

failure to pay taxes[.]” W.Va. Code § 11A-3-1(3). Further, the legislature has provided

that a tax-delinquent property owner has the ability to “redeem at any time before the tax

deed is issued[.]” W.Va. Code § 11A-3-56 [1995]. Southland retained the right to

redeem the property while the proceeding brought by Purchaser Jones was ongoing.

Therefore, I find that due process, fairness, and justice mandate that Southland should

have been permitted to intervene.

             Next, the majority asserts that Southland may pursue other remedies

outside of the Section 60 proceeding to protect its property interests. While I agree that

Southland may pursue other remedies, this should not preclude Southland from being

permitted to intervene in the present case.       Assuming, arguendo, that Southland’s

property interests are unlikely to be affected given the limited scope of a proceeding

under W.Va. Code § 11A-3-60, I see no harm in allowing it to intervene and raising

arguments that could be germane to the resolution of this matter. Courts should err on

the side of inclusion when a property owner seeks to intervene in a lawsuit concerning

the property owner’s real estate. This Court has recognized that:

                    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
             interests.

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Syllabus, Manufacturers’ Light & Heat Co. v. Lemasters, 91 W.Va. 1, 112 S.E. 201

(1922).

             Because Southland clearly has a material interest in the subject matter of

this lawsuit—the two parcels of real estate it owns—it should have been permitted to

intervene.

             Based on all of the foregoing, I respectfully dissent.




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