                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Martinsburg IRS OC, LLC,
Defendant Below, Petitioner                                                          FILED
                                                                                 March 20, 2020
vs.) No. 19-0193 (Berkeley County CC-02-2018-P-452)                             EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Berkeley County Board of Assessment Appeals,
Plaintiff Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Martinsburg IRS OC, LLC (“the company”), by counsel William P. Bresnahan,
appeals the order of the Circuit Court of Berkeley County, entered on January 31, 2019, granting
Respondent Berkeley County Board of Assessment Appeals’ (“the board’s”) motion to dismiss for
lack of subject matter jurisdiction. The board appears by counsel Norwood Bentley III.

       This 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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        The company, a commercial real estate business, filed in the Circuit Court of Berkeley
County on November 21, 2018, an appeal of the board’s decision affirming the 2018 assessment
of the company’s property. The board filed a motion to dismiss pursuant to Rule 12(b)(1) of the
Rules of Civil Procedure on January 14, 2019, on the ground that the circuit court lacked
jurisdiction to hear the appeal because the company had not certified and transmitted the
administrative record to the circuit court within thirty days of the filing of the petition for appeal
as required by West Virginia Code § 11-3-25(b). The company opposed the motion and transmitted
the documents to the circuit court on January 28, 2019. The circuit court agreed that the transmittal
requirement is jurisdictional and that the company’s failure to meet the requirement deprived the
court of subject matter jurisdiction, and it dismissed the company’s appeal by order entered on
January 31, 2019.

       On appeal, the company asserts a single assignment of error: that the circuit court erred in
dismissing the appeal from its docket for failure to file the certified board record. The facts are
undisputed, and the question before us is one of pure law. We, thus, apply a de novo standard of
review. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

       An appeal from an assessment by a county’s board of equalization and review is governed

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by West Virginia Code § 11-3-25(b), which provides:

               The right of appeal from any assessment by the Board of Equalization and
       Review or order of the Board of Assessment Appeals as provided in this section
       may be taken either by the applicant or by the state, and in the case of the applicant,
       by his or her attorney, or in the case of the state, by its prosecuting attorney or other
       attorney representing the Tax Commissioner. The party desiring to take an appeal
       from the decision of either board shall have the evidence taken at the hearing of the
       application before either board, including a transcript of all testimony and all
       papers, motions, documents, evidence and records as were before the board,
       certified by the county clerk and transmitted to the circuit court as provided in
       section four, article three, chapter fifty-eight of this code, except that, any other
       provision of this code notwithstanding, the evidence shall be certified and
       transmitted within thirty days after the petition for appeal is filed with the court or
       judge, in vacation.

(Emphasis supplied.) We agree that the requirement for the timely transmission of the certified
record described in this section is mandatory and jurisdictional, as we explained in syllabus point
4 of Tax Assessment Against Purple Turtle, LLC v. Gooden, 223 W. Va. 755, 679 S.E.2d 587
(2009):

               The provisions of Section 25, Article 3, Chapter 11, Code, 1931, as
       amended, governing appeals from the county court to the circuit court of the county
       from an assessment made by the county court, in which there was a hearing and an
       appearance by the property owner, and requiring that the application for an appeal
       be presented in the circuit court within thirty days from the adjournment of the
       county court by which the order complained of was rendered, and the provisions of
       Section 4, Article 3, Chapter 58, Code, 1931, requiring that the petition be
       accompanied by the original record of the proceeding in the county court in lieu of
       a transcript of such proceeding, are mandatory and will be read and considered
       together; and when it appears upon review in this Court that the petition, though
       presented within the thirty day period, was not accompanied by the original record
       of the proceeding in the county court and that no record of such proceeding was
       filed in the circuit court within the limitation of thirty days prescribed by Section
       25 of the statute, the appeal applied for must be refused by the circuit court and the
       writ of error awarded by this Court to the judgment of the circuit court refusing
       such appeal will be dismissed.

(Citations omitted)(Emphasis supplied.) Our holding in Purple Turtle clarifies that the circuit court
is without discretion on this matter, and petitioner has not persuaded us that our analysis need be
revisited.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.



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ISSUED: March 23, 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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