                                  STATE OF WEST VIRGINIA
                                SUPREME COURT OF APPEALS

PATRICK ELZA,
Defendant Below, Petitioner
                                                                                     FILED
vs)    No. 18-0704 (Randolph County 17-C-144)                                      April 3, 2020
                                                                                   released at 3:00 p.m.
                                                                               EDYTHE NASH GAISER, CLERK
CITY OF ELKINS,                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Plaintiff Below, Respondent



                              MEMORANDUM DECISION

        Petitioner Patrick Elza, by counsel, Jeremy B. Cooper, appeals the July 5, 2018
order entered by the Circuit Court of Randolph County, West Virginia, following a bench
trial, which resulted in a verdict in favor of Respondent City of Elkins (“the City”). The
City appears by counsel, Geraldine S. Roberts. The circuit court determined that the City’s
charges to property owners for fire services were reasonable fees, and petitioner must pay
the City delinquent fire service fees, penalties and costs in the amount of $1,275.13.
Petitioner appeals, arguing that the circuit court erred in finding the City’s fire service fee
was a reasonable fee, rather than an impermissible tax or an unreasonable fee, and in
denying his motion for certain discovery.

       After a careful review of the applicable standards of review, the parties’ briefs, oral
arguments, appendix record, and the pertinent legal authorities, this Court finds no
substantial question of law and no prejudicial error. For these reasons, a memorandum
decision affirming the order of the circuit court is appropriate under Rule 21 of the West
Virginia Rules of Appellate Procedure.


                             I. Factual and Procedural History

        Prior to July 1, 2015, the City had been charging fire service fees to those who lived
within the City’s municipal limits. In 2014, the City passed Ordinance 178, 1 which had an


       1   Elkins, W. Va., Ordinance 178 (2014) provided, in relevant part:

                          WHEREAS, the Common Council or the City of
                 Elkins has determined that in order to fairly equalize and
                 apportion the cost of providing fire protection services, it is
                 necessary, pursuant to West Virginia Code § 8-13-13, to
                 assess a fire fee outside the City corporate limits but within
                 its First Due Area upon the users and beneficiaries of the fire
                 protection service provided by the Elkins Fire Department in
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effective date of July 1, 2015, and which established a fire protection service fee on
properties within the Elkins Fire Department First Due Response Area, 2 rather than just
within the City’s municipal limits. 3 The circuit court found that the First Due Response
Area included “the area within the municipal boundaries and an area beyond the municipal
boundaries which had been designated as the Elkins Fire Department’s response area by
the West Virginia State Fire Commission and the State Fire Marshall.” In 2015, this
ordinance was amended, and the fire service fee continued. 4

        The City’s decision to expand the area for imposing the fire service fee was a
budgetary one. The fire service fees collected solely from within the municipal limits were
not sufficient to cover the Elkins Fire Department’s budget, which caused the City to take
money out of its general fund to make up the fire department’s budget shortfalls. The City
had been providing services to those in the First Due Response Area at no cost to the
businesses or individual property owners. The Elkins City Council met and reviewed the
expenses that the proposed new fire service fee would cover. The City Council determined

                 order to provide revenue to fund a portion of the cost
                 necessary to provide fire protection services to said users and
                 beneficiaries, and provide that future adjustments be by the
                 same percentage applied to all rates and charges imposed by
                 this Article[.]
       2   This was also referred to as the “First Due Area” in the ordinance.
       3The ordinance was enacted pursuant to West Virginia Code § 8-13-13(a), which
provides in relevant part:

                 Notwithstanding any charter provisions to the contrary, a
                 municipality which furnishes any essential or special
                 municipal service, including, but not limited to, police and
                 fire protection, parking facilities on the streets or otherwise,
                 parks and recreational facilities, street cleaning, street
                 lighting, street maintenance and improvement, sewerage and
                 sewage disposal, and the collection and disposal of garbage,
                 refuse, waste, ashes, trash and any other similar matter, has
                 plenary power and authority to provide by ordinance for the
                 installation, continuance, maintenance or improvement of
                 the service, to make reasonable regulations of the service,
                 and to impose by ordinance upon the users of the service
                 reasonable rates, fees and charges to be collected in the
                 manner specified in the ordinance.

(Emphasis added).
       4 The 2015 amendments do not impact the issue currently before the Court. See
Elkins, W. Va., Ordinance 195 (2015).

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that the reasonable expenses 5 for both the current fire services to all areas and for
improvements to provide optimal fire services would total approximately $881,016. The
City made the decision to cover these expenditures by imposing a fire service fee on the
First Due Response Area using the same criteria used for imposition of the fee within the
municipal limits—$100 flat fee per year for residential property and $0.05 per square foot
for commercial space with a minimum of $100 per year.

       On August 28, 2017, the City filed a complaint in the Magistrate Court of Randolph
County against petitioner due to his failure to pay $363.02 in fire service fees for his
commercial property that was located within the First Due Response Area. The annual
amount of petitioner’s fire service fee was $262.50. Petitioner, who was pro se, answered
the complaint, asserting the fire service fees were illegal and should be declared void.

        Petitioner also sought discovery by requesting a “multitude of documents” relating
to the Elkins Fire Department from the City. The City responded, claiming that none of
the documents sought were in its custody, care and control and that petitioner had
previously filed FOIA requests, which provided him with the information he was seeking.
Petitioner again filed a discovery motion requesting the City provide him with information
relating to the Elkins Fire Department and the Elkins Volunteer Fire Department.

        The City moved to remove the case to circuit court, which motion was granted by
the magistrate court on November 16, 2017. Once the case was removed to circuit court,
the City responded to petitioner’s second discovery motion. But on February 6, 2018,
petitioner served another set of discovery requests on the City, including the following
request:

               6.      Itemization of all expenses incurred by the Elkins
               Fire Department from providing fire protective services
               outside City limits (First Response Area) and an itemization
               of all expenses incurred from providing fire protective
               services within the City limits for fiscal years 2015 (before
               fire fee was assessed) 2016 and 2017 and all reports of fire
               and non-fire incidents filed with the West Virginia State Fire
               Marshall’s Office (pursuant to the West Virginia State Fire
               Commission Requirements for West Virginia Fire
               Departments, Section 6.02 National Fire Incident Reporting
               System).

The City provided documentation responsive to this discovery request in the form of total
expenditures for the Elkins Fire Department, because the City did not keep itemized
information regarding specific expenses of the Elkins Fire Department in the format sought

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        Among the expenses included were workers’ compensation, office supplies,
training and education, pension funds and salaries for hiring new employees, new
equipment, and uniforms.
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by petitioner. Thereafter, on May 1, 2018, petitioner filed “Defendant’s Request to Make
the City of Elkins Comply With My Motion to Produce Documents,” stating, in part, that
he had not received the itemized information that he requested for Elkins Fire Department
based on where its services took place.

        The City then filed a motion for summary judgment, with affidavits, affirming that
petitioner owed the delinquent fire service fees assessed against him. The City also
responded to petitioner’s “request to comply,” stating that it had responded to the discovery
requests.

        The circuit court conducted a hearing on May 29, 2018, concerning the discovery
issue. The circuit court determined that the City had provided the information to petitioner
that it was required to provide and that “[i]t may not be worded out exactly the way or
informed the way Mr. Elza requested but it is available to Mr. Elza for him to determine
the information he asked for.” At this hearing, the circuit court declined to rule on the
City’s summary judgment motion until after a bench trial.

         The bench trial began on June 8, 2018. The City called several witnesses, including
petitioner, Van Broughton, who was the Mayor of Elkins, Thomas Meader, who was the
Fire Chief of the Elkins Fire Department, and Tracy Renee Judy, who was the City’s
treasurer. Mayor Broughton testified about the need for the fire service fee stemming from
the City’s concern that there was insufficient revenue generated by the City to cover the
expenses of the fire department. Fire Chief Meader testified about the First Due Response
Area, and that prior to the adoption of the fire service fee, the fire department had been
responding to calls in the First Due Response Area even though the property owners had
not been paying for that service. Chief Meader stated that the City’s general fund was
being used to make up the budgetary shortfall of the fire department. Chief Meader’s
testimony also included the numerous services, other than fire-fighting, that the fire
department provided, including cave rescues, swift-water rescues, automobile accidents,
and hazmat incidents, to name a few. Finally, Ms. Judy testified about the amount of the
fire fee generally. She stated that the amount charged to all property owners, whether their
property was located in the city limits or in the First Due Response Area, was exactly the
same. Significantly, Ms. Judy testified that “[a] fire service fee can only be used for the
fire department. It cannot be used for any other department in the general fund.” Ms. Judy
also testified that the amount owed by petitioner was $1,275.13, which included penalties
and other fees. Petitioner did not call any witnesses, however, he testified that he owned a
home located within the city limits and did not object to paying a fire service fee on that
property, only on his business located in the First Due Response Area.

       At the conclusion of the bench trial, the circuit court found, inter alia, that

               12.   The fees for the properties within the municipal
               boundaries and for the area beyond the municipal boundaries

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               which has been designated as the First Due Response Area
               are the same amount and are reasonable for the purpose for
               which [the ordinance] was enacted.

                       ....

               15.    The City of Elkins cannot use its general funds and
               fire protection services fees to provide fire protection
               services to properties outside the City’s municipal
               boundaries, unless it receives reasonable payment for such
               services in exchange for providing such services.

               16.     As long as the City of Elkins is required to provide
               fire protection services in the First Due Response Area as
               designated by the State Fire Marshal, the City of Elkins must
               be paid a reasonable fee for providing such fire protection
               services to the users thereof.

Therefore, the circuit court granted judgment in favor of the City, ordering petitioner to
pay his delinquent fire service fees. It is from that order that petitioner appeals.

                                  II. Standard of Review

        Two different standards of review govern the Court’s review of the issues raised by
petitioner. First, regarding the standard of review for a bench trial, this Court has held the
following:

                       In reviewing challenges to the findings and
               conclusions of the circuit court made after a bench trial, a
               two-pronged deferential standard of review is applied. The
               final order and the ultimate disposition are reviewed under
               an abuse of discretion standard, and the circuit court's
               underlying factual findings are reviewed under a clearly
               erroneous standard. Questions of law are subject to a de novo
               review.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d
538 (1996). Second, regarding petitioner’s assignment of error involving the circuit court’s
discovery order, this Court has applied the following standard:

                        A circuit court’s ruling on discovery requests is
               reviewed for an abuse of discretion standard; but, where a
               circuit court’s ruling turns on a misinterpretation of the West

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               Virginia Rules of Civil Procedure, our review is plenary. The
               discretion that is normally given to a trial court’s procedural
               decisions does not apply where the trial court makes no
               findings or applies the wrong legal standard.

Syl. Pt. 5, State ex rel. Med. Assurance of W. Va., Inc. v. Recht, 213 W. Va. 457, 583 S.E.2d
80 (2003).

                                       III. Discussion
         The first issue raised on appeal requires the Court to decide if the City’s charge for
fire services is an impermissible tax, an unreasonable fee, or a reasonable fee as found by
the circuit court. Petitioner argues the charge for fire services is geared toward raising
revenue, and, therefore, it is an impermissible tax. According to petitioner, prior to the
imposition of the fire service fee in the First Due Response Area, the City was spending
about $400,000 on fire protection service within the City. After the fee was imposed in the
extended area, the City’s budget for fire protection service doubled. Thus, petitioner argues
this fact shows the funds generated by the new fire service charge were not just to defray
costs, but were a source of revenue. The City, on the other hand, argues that where the
primary purpose is to cover expenses that the City has incurred in providing fire services
to its citizens who owned property outside the city, then it is a fee, not a tax. See Davisson
v. City of Bridgeport, No. 13-0378, 2014 WL 184436, at *3 (W. Va. Jan. 15, 2014)
(memorandum decision) (finding Bridgeport’s charge for fire services in its First Due Area
was a permissible fee as opposed to a tax).

        In Cooper v. City of Charleston, 218 W. Va. 279, 624 S.E.2d 716 (2005), the Court
addressed the issue of whether the City of Charleston’s “user fee” to be paid by individuals
working within the corporate limits of the City of Charleston was an unconstitutional tax
or an unreasonable fee. Id. at 282-83, 624 S.E.2d at 719-20. The Court found that the
“user fee” was just that—a fee—that was not unreasonable. In reaching this decision, the
Court stated that “‘[t]he primary purpose of a tax is to obtain revenue for the government,
while the primary purpose of a fee is to cover the expense of providing a service or of
regulation and supervision of certain activities.’ City of Huntington v. Bacon, 196 W.Va.
457, 46[6], 473 S.E.2d 743, 75[2] (1996) (Citation omitted.).” Cooper, 218 W.Va. at 285,
624 S.E.2d at 722. Thus, the Court concluded that all the proceeds from the user fee were
used to pay “a portion of the expenses of providing police protection and street repairs and
maintenance services . . .” to those individuals working in Charleston. Id.

        The evidence in the instant case clearly establishes that the City’s charges for fire
services it provided to its residents living either in the City’s municipal limits, or in the
First Due Response Area, were for expenses the City incurred as a result of providing those
services. The evidence was that the City was having to cover the losses from the fire
department by taking funds from its general fund to make up the fire department’s budget
shortfalls. The testimony from Ms. Judy, the city treasurer, was that the money obtained
from the fire service fee at issue was used solely by the fire department and for no other
purpose. Further, Ms. Judy testified that the projected expenses and improvements to the

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Elkins City Fire Department totaled $881,016, while the collected fire service fees since
those fees had expanded to the First Due Response Area totaled $827,945.93. There was
also testimony from Chief Thomas Meader that the fire department was operating at a loss
to provide services to the First Due Response Area.

        Based upon the evidence submitted, we conclude that the circuit court did not err
in finding that the fire service fee is a fee and not an impermissible tax. See Cooper, 218
W. Va. at 283, 624 S.E.2d at 720; see also Davisson, No. 13-0378, 2014 WL 184436, at
*3.

         In examining the reasonableness of the fire service fee charged by the City, we
stated in Cooper that the burden of proof lies with the challenger to an ordinance—in this
case, petitioner—to prove that the service fee is clearly unreasonable. Id. at 287, 624
S.E.2d at 724. Petitioner claims that a fee of $262.52 a year is unreasonable and that
because the circuit court denied his discovery request requiring the City to provide him
with a breakdown of expenses for the Elkins Fire Department in responding to properties
within the city limits compared to properties outside the city limits, he has no way to prove
the fee charged is unreasonable. Conversely, the City argues that the fire fees imposed
upon the First Due Response Area were reasonable. The City contends the fee is
sufficiently related to the service for which it is imposed and the fee is based on the same
criteria in the First Due Response Area as the fee imposed within the city limits.

        In Davisson, the City of Bridgeport adopted an amendment to its ordinance
providing for a fire service fee to be imposed on “‘users and beneficiaries’” who resided
outside the city limits of Bridgeport, but were within the “First Due Area.” No. 13-0378,
2014 WL 184436, at *1. The amount of the fee charged for those residing in Bridgeport’s
First Due Area was $150 per year for a single family residential unit, as compared to $100
per year charged to those residing inside Bridegeport’s city limits, also in a single family
residential unit. The petitioner, in Davisson, lived in the First Due Area, and challenged
the amendment to the ordinance, in part, arguing that it was an unreasonable fee. Id. at *4.
We disagreed, determining that the fire service fee imposed on Bridgeport’s First Due Area
was reasonable. Id. The Court adopted the circuit court’s determination that the amount of
the fee was reasonable “because it equitably serve[d] the purpose for which it was enacted.
Significantly, all revenues generated pursuant to the ordinance will be used to defray
expenses of providing fire service protection to the users of those services.” Id.

       In the instant case, the evidence showed that the Elkins Fire Department needed
revenue to provide services to its users, which include those in the First Due Response
Area, and to defray the expenses the City was incurring in providing fire services to its
users. Moreover, the fire service fees charged by the City were the exact same amount for
both the City’s residents living within the municipal boundary, and those residing in the
First Due Response Area. 6 As the record shows, the City imposed a $100 flat fee per year


       6We note that, in Davisson, Bridgeport’s fee for those residing in the First Due
Area was more than what the city charged for residents living within the municipal limits.
No. 13-0378, 2014 WL 184436, at *1. We recognized that a municipality “may charge
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for residential property and a fee of $0.05 per square foot commercial space with a
minimum of $100 per year—regardless of whether the property was located within the
municipal limits or the First Due Response Area. Therefore, we agree with the circuit
court’s determination that the amount of the fees “[is] reasonable for the purpose for which
[the ordinance] was enacted.”

        The only other issue is whether the circuit court erred in denying petitioner’s motion
to require the City of Elkins to provide information in discovery that would be necessary
to determine whether the fire fee was an unreasonable fee. Petitioner wanted the City to
provide him with a breakdown of what percentage of expenses was incurred by the Elkins
Fire Department for fire services provided to properties located within the City’s municipal
limits compared with expenses incurred by the fire department in providing fire services to
the First Due Response Area outside the city limits. According to petitioner “[i]f the
expenditures show that the First Due [A]rea is paying dramatically more than it is receiving
in services, it will bring the reasonableness of the fee into question.” The City argues that
the circuit court correctly denied petitioner’s discovery request because it is not in
possession of the information that petitioner is requesting and is under no obligation to
produce information it does not have. The circuit court, after a hearing on the discovery
request, determined that the City had “fully responded to the . . . [petitioner’s] discovery
requests.”

        Rule 33 of the West Virginia Rules of Civil Procedure, which governs
interrogatories, provides that a party served with interrogatories is only responsible for
“furnish[ing] such information as is available to the party.” W. Va. R. Civ. P. 33(a)
(emphasis added). Likewise, Rule 34 of the West Virginia Rules of Civil Procedure
governing requests for production of documents provides that a party is only obligated to
produce documents which are in its “possession, custody or control.” W. Va. R. Civ. P.
34(a).

         During the May 29, 2018, hearing on the discovery issue, petitioner admitted that
he had received documentation of expenses incurred by the Elkins Fire Department, but
that the information contained therein was “all together” and it would be more convenient
to him if these expenses were “broke[n] up.” The City informed the circuit court that it
was not in possession of documentation breaking down its expenses incurred in providing
services for property in the city limits and property in the First Due Response Area.
Furthermore, even if the information was available, it was not kept in the manner asked for
by petitioner. The City argued that it was under no obligation to generate a new document
that provided the information to petitioner in the way that he wanted it. Additionally,
petitioner wanted the expenses limited to just fire calls, “not getting a cat out of the tree,
traffic, helping traffic, [or] car accidents.” The City, however, argued that the expenses for



higher rates for users living outside the City’s limits,” as long as the rates are reasonable.
Id. at *3 We also found that “[t]here is no statutory impediment to charging a higher rate
for those who live outside the city limits and enjoy the benefit of fire protection services.”
Id. at *4.
                                              8
the fire department “include anything that the fire department would provide as far as
services, not just if your home was on fire or your building was on fire.”

        At the conclusion of the hearing, the circuit court found that the City had fully
responded to petitioner’s discovery requests. We find the circuit court did not abuse its
discretion in this determination.

                                     IV. Conclusion

        For the foregoing reasons, we affirm the circuit court’s order entered July 5, 2018,
finding that petitioner owes the City of Elkins $1,275.13 for unpaid fire service fees and
penalties, costs and interest from the date of the circuit court’s judgment.

                                                                                 Affirmed.

ISSUED: April 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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