                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Thomas I. Palley,                                                                       FILED
Petitioner Below, Petitioner
                                                                                     April 21, 2017
                                                                                     RORY L. PERRY II, CLERK
vs) No. 16-0403 (Tucker County 15-P-5)                                             SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA

Tucker County Commission,
Respondent Below, Respondent

                                MEMORANDUM DECISION

        Petitioner Thomas I. Palley, pro se, appeals two orders of the Circuit Court of Tucker
County. In the first order, entered on August 4, 2015, the circuit court directed the Tucker County
Assessor (“County Assessor”) to reassess petitioner’s real property at 105 North Point Woods for
the 2015 tax year and ordered that both parties shall bear their own costs.1 In the second order,
entered on March 24, 2016, the circuit court found that petitioner’s property should be assessed at
a value of $181,200 and denied petitioner’s request for an injunction enjoining the Assessor from
using his preferred method of assessing petitioner’s property with regard to future tax years.
Respondent Tucker County Commission (“County”), by counsel Raymond K. LaMora, III, filed a
summary response in support of the circuit court’s orders. Petitioner filed a reply.

        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 real property at 105 North Point Woods in Tucker County, West Virginia,
which consists of a residence and 2.17 acres of land. For the 2015 tax year, the County Assessor
assessed petitioner’s property at a total value of $292,500, comprising a value of $152,900, for his
home and a value of $139,600 for the land. Petitioner sought review of the 2015 tax assessment

        1
         Petitioner has timely appealed the August 4, 2015, order because it was a non-final order
that did not become appealable until the entry of the final order on March 24, 2016. See Riffe v.
Armstrong, 197 W.Va. 626, 637, 477 S.E.2d 535, 546 (1996), modified on other grounds by Moats
v. Preston County Comm’n, 206 W.Va. 8, 521 S.E.2d 180 (1999) (stating that “if an appeal is taken
from what is indeed the last order disposing of the last of all claims as to the last of all parties, then
the appeal brings with it all prior orders”).

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before the board of equalization and review, which upheld the assessment.

       Petitioner subsequently appealed the 2015 tax assessment to the Circuit Court of Tucker
County pursuant to West Virginia Code §§ 11-3-24 and 11-3-25. The circuit court held a hearing
on June 15, 2015, at which the County Assessor’s employee, Greg Stevens, testified as to the
method of valuating petitioner’s property:

       A.      And[,] so we take the sales value—the sales price of the properties in a
       specific neighborhood and come up to the value of the land—land only—by pulling
       out the homes. The home values we get actual building values from the contractors
       in the area that are building new homes today. So[,] we get a modifier that gives us
       a building value.

                Then[,] we pull that building value out of the sales cost of properties that
       sell in those years and that gives us the land value.

         Petitioner contended that the $139,600 valuation the assessment method had produced for
the value of his land was exaggerated given that, while he possessed a large lot, the restrictive
covenants pertaining to his subdivision meant that he could never subdivide his lot. To support his
contention, petitioner submitted an appraisal of his property by licensed appraiser Beverly
Johnson, who gave the property a total value of $162,000 (using the sales comparison approach) or
$168,788 (using the cost approach). Consequently, the circuit court asked Mr. Stevens to respond
to the argument that the County Assessor’s assessment method was overvaluing petitioner’s
property. Mr. Stevens conceded that the assessment method overvalues the property “[t]o a point,”
but also explained that, while some larger properties were being overvalued and some smaller
properties were being undervalued, those variations were attributable to Tucker County bringing
itself into compliance with state standards regarding property assessment. Mr. Stevens testified
that, for four to five years, Tucker County had been “out of compliance,” but that, for the previous
year (2014), “we were in compliance for the first time.” The County asked Mr. Stevens to clarify
that “[t]he State allows up to a ten percent fluctuation so even last year you were within that ten
percent?” Mr. Stevens answered, “Correct.”

        By order entered on August 4, 2015, the circuit court reversed the assessment of
petitioner’s property and directed the County Assessor to reassess the property, after which
petitioner could file objections to the new assessment if necessary. The circuit court further
ordered that the parties bear their own costs. The circuit court found that the County Assessor
acted in good faith and found that petitioner’s property “[was] somewhat unique by being a large
lot in an otherwise small lot development[,] which has contributed to the valuation difficulties.”
The County Assessor reassessed petitioner’s property at a total value of $216,300. Petitioner
objected to the reassessed value as still overvaluing his property. At a March 16, 2016, hearing,
petitioner proposed a total valuation of $181,000. The circuit court found petitioner’s total
valuation to be reasonable and ordered that it be the assessment on his property for the 2015 tax
year. However, the circuit court denied a request by petitioner for an injunction enjoining the
County Assessor from using his preferred method of assessing petitioner’s property on the ground
that the court had no authority regarding assessments for future tax years not then before it. The
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circuit court entered an order memorializing its rulings from the March 16, 2016, hearing on
March 24, 2016.

        Petitioner now appeals the circuit court’s ruling that he pay his own costs and its denial of
an injunction enjoining the County Assessor from using his preferred method of assessing
petitioner’s property. “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.” Syl. Pt. 4, Burgess v. Porterfield,
196 W.Va. 178, 469 S.E.2d 114 (1996).

           The circuit court properly refused to order the County to pay petitioner’s costs.

        Petitioner contends that the circuit court erred in not awarding him his costs.2 A court may
order payment of reasonable costs incurred as the result of a party’s “vexatious, wanton, or
oppressive assertion of a claim or defense that cannot be supported by a good faith argument for
the application, extension, modification, or reversal of existing law.” Syllabus, Daily Gazette Co.,
Inc. v. Canady, 175 W.Va. 249, 332 S.E.2d 262 (1985). The County argues that the circuit court
did not err in ruling that the parties bear their own costs given that petitioner did not show any
misconduct on the part of the County Assessor in the assessment of his property. We agree with the
County based on findings made by the circuit court. The circuit court found that the County
Assessor acted in good faith and that petitioner’s property “[was] somewhat unique by being a
large lot in an otherwise small lot development[,] which has contributed to the valuation
difficulties.” Therefore, we conclude that the circuit court did not err in refusing to order the
County to pay petitioner’s costs.

                                  The circuit court properly denied

                  petitioner’s request for an injunction regarding future tax years.


        Petitioner contends that the circuit court should have granted his request for an injunction
on the ground that it is inevitable that he and the County Assessor will disagree regarding future
tax assessments of his property. The County counters that the circuit court properly denied an
injunction enjoining the County Assessor from using his chosen method of assessment given that
the assessment method conforms to state standards. 3 We apply the following standard for
       2
        Petitioner includes in his estimate of costs “attorney’s fees” from where he prepared his
pleadings and appeared in court on his own behalf. However, in Smith v. Bradley, 223 W.Va. 286,
292, 673 S.E.2d 500, 506 (2007), we found that pro se litigants were ineligible for attorney’s fees.
See also Moss v. Bonnell, 186 W.Va. 301, 306, 412 S.E.2d 495, 500 (1991) (finding that “a basic
requirement of [an award of attorney’s fees] is a fee charged by an attorney”).
       3
        To counter this argument by the County, petitioner notes that Article ten, section one of
the West Virginia Constitution requires that taxation be equal and uniform throughout the state.
However, apart from repeating that truism throughout his arguments, petitioner fails to explain
how the County Assessor’s method of assessment violates Article ten, section one. Therefore, we
(Continued . . .)
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reviewing an order granting an injunction:

               Unless an absolute right to injunctive relief is conferred by statute, the
       power to grant or refuse to modify, continue, or dissolve a temporary or a
       permanent injunction, whether preventative or mandatory in character, ordinarily
       rests in the sound discretion of the trial court, according to the facts and the
       circumstances of the particular case; and its action in the exercise of its discretion
       will not be disturbed on appeal in the absence of a clear showing of an abuse of
       such discretion.

Syl. Pt. 5, Foster v. Orchard Development Co., LLC, 227 W.Va. 119, 705 S.E.2d 816 (2010)
(internal quotations and citations omitted).

        Petitioner acknowledges that the instant proceeding is an administrative appeal of the 2015
tax assessment of his property pursuant to West Virginia Code §§ 11-3-24 and 11-3-25. Within
that context, the circuit court found that there was no basis for granting an injunction with regard to
future tax years not then before it. We agree with the circuit court and find that it did not abuse its
discretion in denying petitioner’s request for an injunction.

        For the foregoing reasons, we affirm the circuit court’s August 4, 2015, order directing the
parties to bear their own costs and its March 24, 2016, order denying petitioner’s request for an
injunction.

                                                                                            Affirmed.

ISSUED: April 21, 2017

CONCURRED IN BY:

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




decline to address the issue given petitioner’s failure to adequately brief it. See State v. LaRock,
196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) (stating that “[a]lthough we liberally construe
briefs in determining issues presented for review, issues which are not raised, and those mentioned
only in passing but are not supported with pertinent authority, are not considered on appeal”).

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