____________________________________________________________ 

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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

September 2018 Term

 _______________ FILED 

November 8, 2018 No. 17-0309 released at 3:00 p.m. 

_______________ EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MARK A. MUSICK, in his capacity as 

the Monongalia County, West Virginia, Assessor, 

Respondent Below, Petitioner, 

v. 

UNIVERSITY PARK AT EVANSDALE, LLC,
 

Petitioner Below, Respondent. 

Appeal from the Circuit Court of Monongalia County 

The Honorable Lawrance S. Miller, Jr., Judge 

Civil Action No. 15-CAP-8 

AFFIRMED 

Submitted: October 9, 2018 

Filed: November 8, 2018 

Webster J. Arceneaux, III, Esq. James A. Walls, Esq. 

Lori D. Counts-Smith, Esq. Joseph V. Schaeffer, Esq. 

Lewis, Glasser, Casey & Rollins, PLLC Spilman Thomas & Battle PLLC 

Charleston, West Virginia Morgantown, West Virginia 

Counsel for the Respondent 

Phillip M. Magro, Esq. 

Assistant Prosecuting Attorney John A. Mairs, Esq. 

Magro & Magro Christopher M. Hunter, Esq. 

Morgantown, West Virginia JACKSON KELLY PLLC 

Counsel for the Petitioner Charleston, West Virginia 

Counsel for Amicus Curiae 

West Virginia University Board of 

Governors 
Patrick Morrisey, Esq. 

Attorney General 

Thomas M. Johnson, Jr., Esq. 

Deputy Solicitor General 

Joshua L. Jarrell, Esq. 

General Counsel, West Virginia 

Department of Commerce 

Charleston, West Virginia 

Counsel for Amicus Curiae West Virginia 

Development Office 

JUSTICE WALKER delivered the Opinion of the Court. 

JUSTICE ALLEN H. LOUGHRY, II, suspended and therefore not participating. 

JUSTICE PAUL T. FARRELL, sitting by temporary assignment. 

ii 
SYLLABUS BY THE COURT 

1. “‘It is a general rule that valuations for taxation purposes fixed by an 

assessing officer are presumed to be correct. The burden of showing an assessment to be 

erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.’ Syl. pt. 

7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 

(1983).” Syllabus Point 1, Western Pocahontas Properties, Ltd. v. County Comm’n of 

Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 (1993). 

2. “Interpreting a statute or an administrative rule or regulation presents a 

purely legal question subject to de novo review.” Syllabus Point 1, Appalachian Power 

Co. v. State Tax Dep’t of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995). 

3. “The county assessor may presume that leaseholds have no value 

independent of the freehold estate and proceed to tax all real property to the freeholder at 

its true and actual value; the burden of showing that a leasehold has an independent value 

is upon the freehold taxpayer and the taxpayer must request in a timely manner the 

separate listing of freehold and leasehold interests.” Syllabus Point 2, Great A&P Tea 

Co., Inc. v. Davis, 167 W. Va. 53, 278 S.E.2d 352 (1981). 

4. “An appellate court should not overrule a previous decision recently 

rendered without evidence of changing conditions or serious judicial error in 

interpretation sufficient to compel deviation from the basic policy of the doctrine of stare 

i 
decisis, which is to promote certainty, stability, and uniformity in the law.” Syllabus 

Point 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974). 

ii 
 

WALKER, JUSTICE: 

In 2013, West Virginia University (WVU) leased property to University 

Park at Evansdale, LLC (UPE) for the development of University Park, a student housing 

facility. On the same date, UPE subleased the student housing back to WVU for 

purposes of offering it to students for housing. As a result, the residential facilities of 

University Park are managed and operated solely by WVU. The sublease from UPE to 

WVU did not include certain retail/commercial premises, which UPE may use or 

sublease subject to WVU’s approval. We consider for the second time1

 the disagreement 

between the Assessor of Monongalia County, Mark A. Musick, and UPE regarding a 

2015 assessment that valued UPE’s leasehold interest in University Park at more than $9 

million. Mr. Musick appeals the circuit court’s decision that based on the evidence 

presented at the Board of Equalization and Review (BER), the assessment of UPE’s 

leasehold interest for tax year 2015 was $0. 

Mr. Musick’s primary contention is that this Court’s opinion in Maplewood 

Community, Inc. v. Craig2

 was incorrectly decided, and thus the circuit court’s 

application of Maplewood’s rule as to valuation of leasehold interests was wrong. He 

1

 In University Park at Evansdale, LLC v. Musick, 238 W.Va. 106, 792 S.E.2d 605 

(2016) (UPE I), we considered the circuit court’s denial of UPE’s appeal from the Board 

of Review on the grounds that it lacked jurisdiction because the issue was one of taxation 

instead of valuation. We reversed the circuit court and remanded the case for a ruling on 

the valuation of the property, which is now before us. 

2

 216 W.Va. 273, 607 S.E.2d 379 (2004) (per curiam). 

1 
 

also contends that even if Maplewood is correct, the case should have been remanded to 

the BER for development of additional evidence. We disagree and affirm the circuit 

court’s order because Mr. Musick contravened the requirements of both West Virginia 

Code of State Rules § 110-1P-3 and applicable case law in assessing UPE’s leasehold 

interest.3 

I. FACTUAL AND PROCEDURAL BACKGROUND 

UPE is the lessor of certain property commonly known as University Park 

located on the Evansdale Campus of West Virginia University. This property, owned by 

the West Virginia University Board of Governors, contains student housing facilities and 

a small amount of retail space.4

 WVU leased the property to UPE for the development 

and construction of University Park, and UPE simultaneously subleased the student 

housing properties back to WVU for purposes of offering it to students for housing. In 

doing so, UPE retained the ability to sublease the retail space, which comprises only 

approximately three percent of the property. 

3

 We acknowledge the Amicus Curiae brief filed by the West Virginia University 

Board of Governors in support of UPE urging affirmation of the circuit court’s decision 

below. We also acknowledge the Amicus Curiae brief filed by the West Virginia 

Development Office in support of neither party. 

4 UPE I, 238 W. Va. at 108, 792 S.E.2d at 607. 

2 
As UPE explains, the terms of the December 23, 2013 lease provide that 

WVU lease the university land to UPE for an initial term of forty years, giving UPE a 

guaranteed option to renew the lease for a fifteen-year term, plus the remaining term of 

any outstanding leasehold deed of trust. If the guaranteed option to renew is exercised, 

UPE can exercise an additional ten-year renewal option with the consent of WVU. 

Pursuant to the lease, UPE’s sole property interest in University Park is a leasehold 

interest. 

Under the terms of the lease, UPE was required to develop improvements 

on the university land at its own expense, subject to approval from WVU. Ninety-seven 

percent of the improvements consists of residential premises for use by WVU as student 

housing, and the remaining three percent of the improvements consists of commercial 

premises providing amenities for WVU students, faculty, and staff. WVU immediately 

received title and ownership to the improvements and the personal property as they were 

constructed, with the exception of certain limited improvements and personal property 

belonging to subtenants of the commercial premises as they were brought onto the 

university land, which WVU already owned. 

As a result, WVU owns the university land, the improvements, and the 

personal property, which together comprise University Park. Use of University Park is 

limited to WVU housing for students, faculty, and staff; commercial, retail, and 

3 
governmental enterprises benefitting WVU’s constituents or the general public subject to 

WVU’s written approval; and other expressly-defined permitted uses stipulated to by 

WVU under the lease. 

UPE represents that under the specific terms of the December 23, 2013 

sublease of the residential premises back to WVU, all residential premises at University 

Park are managed and operated solely by WVU as on-campus student housing and are 

subject to the same WVU policies, procedures, rental terms, and housing requirements 

that apply to residential tenants in other on-campus housing. UPE maintains that in 

addition, University Park is within the jurisdiction of and monitored by WVU Police. 

The sublease does not relate to the commercial premises, which UPE may use or sublease 

to permitted tenants for permitted uses subject to WVU’s written approval. 

As characterized by the circuit court’s order, under the terms of the lease 

and sublease, WVU collects rents from tenants and pays one hundred percent of those 

revenues to UPE in consideration for the sublease. Additionally, UPE pays fifty percent 

of the net cash back to WVU (or more if revenues exceed the amount stated in the lease) 

in consideration for the lease. 

In January 2015, Mr. Musick assessed UPE’s leasehold interest in 

University Park at $9,035,617 for the tax year 2015. Because it is State property, the fee 

4 
 

estate owned by WVU is not taxable.5 UPE challenged the assessment before the BER, 

arguing that because the leasehold was neither freely assignable nor a bargain lease, its 

leasehold interest was $0.6 

At the BER hearing, Mr. Musick admitted that he did not utilize the 

methodology promulgated by the Tax Commissioner for assessment of leasehold 

interests.7

 Mr. Musick also agreed that UPE’s lease did not appear to be freely assignable 

because the lease reserves to WVU the right to reject any potential lessor of the retail 

space.8

 And Mr. Musick appeared to agree that, despite his initial belief, the property 

5 See West Virginia Code § 11-3-9(a)(2) (2018) (exempting property belonging 

exclusively to State from ad valorem taxes). 

6

 Article 28.1 of the lease states: 

Limitation: Consent Required. [UPE] may not, at any 

time, sell, assign, convey, or transfer (each, as applicable, a 

“Transfer”) this Lease to another Person without the prior 

written consent of Lessor, which consent shall not be 

unreasonably withheld, conditioned, or delayed. As used 

herein, “Transfer” shall not include any subletting of the 

Leased Premises. Notwithstanding the foregoing, but subject 

to the provisions of Section 26.6.6, such restriction on 

Transfer shall not apply to a Leasehold Mortgagee or its 

nominee following the acquisition of the leasehold estate in a 

foreclosure sale or by deed in lieu of foreclosure. 

7 UPE I, 238 W. Va. at 108-09, 792 S.E.2d at 607-08. As we stated in UPE I, 

“UPE contends the method used to reach the assessment in this case was the 

methodology to be used for fee interests, and not leaseholds.” Id. at 108 n. 4, 792 S.E.2d 

at 607 n. 4. 

8 Id. at 108-09, 792 S.E.2d at 607-08. 

5 
 

 

was not a bargain lease.9

 Despite this testimony, the BER concluded that because UPE 

was asserting that the valuation should be $0 and therefore not taxable, the issue was one 

of taxability, not valuation. Finding that issues of taxability must be challenged before 

the Tax Commissioner, the BER concluded that it lacked jurisdiction. The BER 

encouraged UPE to appeal the issue to the circuit court and it did.10 

In considering UPE’s appeal, the circuit court initially found that because 

the issue was one of taxation instead of valuation, it lacked jurisdiction and UPE was 

required to appeal Mr. Musick’s decision to the Tax Commissioner. This Court 

disagreed, and found that UPE’s appeal was a challenge to the valuation of the property, 

rather than a challenge to taxation, and remanded the matter to the circuit court for a 

ruling on the valuation of the property.11 

On remand in the circuit court, Mr. Musick filed a motion to remand the 

matter to the BER seeking to develop the record regarding the issue of valuation and the 

viability of this Court’s decision in Maplewood. UPE objected to that motion on the 

9 Id. As we stated in UPE I, “Respondent was equivocal on this issue, initially 

stating that he believed it was a bargain lease, but then agreeing with counsel’s leading 

question indicating that respondent concluded it was not a bargain lease.” UPE I, 238 W. 

Va. 106, 108 n. 3, 792 S.E.2d at 607 n. 3. 

10 UPE I, 238 W. Va. at 108-09, 792 S.E.2d at 607-08. 

11 UPE I, 238 W. Va. at 114, 792 S.E.2d at 613. 

6 
 

basis that it was not timely filed. During a January 23, 2017 hearing, the circuit court 

heard the arguments of the parties regarding valuation and Mr. Musick’s motion to 

remand. 

On February 28, 2017, the circuit court granted the petition for appeal in 

favor of UPE. The circuit court found that remand was not appropriate because the BER 

made its decision regarding taxability and jurisdiction after both parties were given a full 

opportunity to present evidence regarding valuation. The circuit court noted that a 

remand would allow Mr. Musick an opportunity to present evidence that “he perhaps 

should have presented before the BER[,]” and found that the remand exception found in 

West Virginia Code §11-3-25(c) is not designed to allow litigants an opportunity to 

present evidence they failed to present the first time. 

The circuit court cited Great A&P Tea Co. v. Davis for the proposition that 

“a separate leasehold is taxable if it has separate and independent value from the free 

hold.”12 Then the circuit court acknowledged the analysis of the “separate value of a 

leasehold” we articulated in Maplewood: 

. . . the separate value of a leasehold, if any, is based on 

whether the leasehold is economically advantageous to the 

lessee, that is a so-called bargain lease, and is freely 

12 167 W. Va. 53, 55, 278 S.E.2d, 352, 355 (1981). 

7 
 

assignable so that the lessee may realize the benefit of such 

bargain in the market place.[13] 

In reviewing the evidence presented before the BER, the circuit court found 

that Mark Nesselroad, an attorney who had an ownership interest in UPE and was 

involved in creating the leasehold with WVU, testified that the lease held by UPE was 

not freely assignable. The circuit court also found that although Mr. Musick initially 

contended that the lease was freely assignable and a bargain lease, he later agreed that the 

lease could not be assigned without prior consent and conceded that the lease was not a 

bargain lease. So, the circuit court concluded that based upon the evidence presented at 

the BER hearing, Mr. Musick’s 2015 assessment was erroneous, finding, “if a leasehold 

interest is not freely assignable and is not a bargain lease, it has no value independent of 

the freehold interest.” The circuit court ruled that UPE’s assessment for the 2015 tax 

year was $0. Mr. Musick now appeals the circuit court’s order. 

II. STANDARD OF REVIEW 

“‘It is a general rule that valuations for taxation purposes fixed by an 

assessing officer are presumed to be correct. The burden of showing an assessment to be 

erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.’ Syl. pt. 

7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 

13 216 W.Va. at 286, 607 S.E.2d at 392. 

8 
 

(1983).”14 “Upon receiving an adverse determination before the county commission, a 

taxpayer has a statutory right to judicial review before the circuit court.” W. Va. Code § 

11-3-25 (1967).15 

Judicial review of a decision of a board of equalization and review 

regarding a challenged tax-assessment valuation is limited to roughly the same scope 

permitted under the West Virginia Administrative Procedures Act.16 As we have 

14 Syl. Pt. 1, Western Pocahontas Properties, Ltd. v. County Comm’n of Wetzel 

County, 189 W.Va. 322, 431 S.E.2d 661 (1993). 

15 In re Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W.Va. 

250, 255, 539 S.E.2d 757, 762 (2000). 

16 W. Va. Code §§ 29A-1-1 through 29A-7-4. West Virginia Code § 29A-5-4(g) 

provides as follows: 

The court may affirm the order or decision of the 

agency or remand the case for further proceedings. It shall 

reverse, vacate or modify the order or decision of the agency 

if the substantial rights of the petitioner or petitioners have 

been prejudiced because of the administrative findings, 

inferences, conclusions, decision or order are: 

(1) In violation of constitutional or statutory 

provisions; or 

(2) In excess of the statutory authority or jurisdiction 

of the agency; or 

(3) Made upon unlawful procedures; or 

(4) Affected by other error of law; or 

(5) Clearly wrong in view of the reliable, probative 

and substantial evidence on the whole record; or 

9 
 

explained, review before the circuit court is confined to determining whether the 

challenged property valuation is supported by substantial evidence, or otherwise in 

contravention of any regulation, statute, or constitutional provision.17 Therefore, “our 

review of a circuit court’s ruling in proceedings under § 11-3-25 is de novo.”18 And in 

ascertaining whether Mr. Musick’s assessment is in conformity with the regulation 

applicable to valuing leasehold interests,19 this Court has held that “interpreting a statute 

or an administrative rule or regulation presents a purely legal question subject to de novo 

review.”20 With these standards in mind, we consider the parties’ arguments. 

III. ANALYSIS 

A. Assessment of Leasehold Interests 

As to the assessment of leaseholds in general, West Virginia Code § 11-5-4 

provides: 

[I]n cases of the assessment of leasehold estates a sum 

equal to the valuations placed upon such leasehold estates 

(6) Arbitrary or capricious or characterized by abuse of 

discretion or clearly unwarranted exercise of 

discretion. 

17 In re Tax Assessment Against Am. Bituminous Power Partners, L.P. at 254, 539 

S.E.2d at 761. 

18 Id. at 255, 539 S.E.2d at 762. 

19 W. Va. Code St. R. § 110-1P-3. 

20 Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W.Va. 573, 

466 S.E.2d 424 (1995). 

10 
 

shall be deducted from the total value of the estate, to the end 

that the valuation of such leasehold estate and the remainder 

shall aggregate the true and actual value of the estate. 

Considering this statutory provision, this Court has held that a leasehold interest can be 

taxable under certain circumstances. In Great A&P, we held that West Virginia Code § 

11-5-4 provided statutory authority “that a separate leasehold is taxable if it has a 

separate and independent value from the freehold.”21 We explained that the burden of 

proof rested with the freehold taxpayer to make such a showing: 

[t]he county assessor may presume that leaseholds have no 

value independent of the freehold estate and proceed to tax all 

real property to the freeholder at its true and actual value; the 

burden of showing that a leasehold has an independent value 

is upon the freehold taxpayer and the taxpayer must request in 

a timely manner the separate listing of freehold and leasehold 

interests.[22] 

In so holding, this Court generally distinguished short-term leases from those of longer 

duration: 

[w]here leaseholds are of short duration the rent paid will 

usually reflect income to the owner of the freehold 

commensurate with the fair market value of the real property. 

Under ordinary conditions the freehold estate will not be 

reduced in value by virtue of the leasehold, nor will the 

leasehold itself have any ascertainable market value. Since 

this latter condition is the normal circumstance in West 

Virginia, when assessors assess freeholds subject to 

leaseholds the property is usually fully taxed. 

21 167 W. Va. at 55, 278 S.E.2d at 355. 

22 Id. at Syl. Pt. 2. 

11 
 

However, there are circumstances involving long-term 

leaseholds where changed business conditions combined with 

persistent inflation have made the leaseholds themselves 

marketable assets of value. Under such circumstances, since 

the freehold estate is charged with the leasehold for a term of 

years, the freehold’s fair market value is reduced in exact 

proportion to the value of the leasehold and, therefore, if the 

real property subject to the leasehold is to be taxed at its “true 

and actual value,” assessors must take into consideration the 

reduced value of the freehold attendant upon the making of a 

very bad contract.[23] 

Later, in Maplewood, we again addressed whether a county assessor could 

tax a leasehold interest.24 In concluding that an assessor could assess a leasehold interest 

if it has an independent value, this Court stated that a component of this process is 

addressing the marketability of the lease: 

[s]ubsequent to the Davis case, the state tax department 

developed an eight-step process for valuing leasehold 

interests in real estate that is referred to as the “Leasehold 

Appraisal Policy.” Pursuant to that process, steps one and 

two require an initial determination of whether a leasehold 

estate was created and secondly whether the lessee has a 

marketable right to assign or transfer the lease. The 

remaining six steps in the process are directed at arriving at a 

value for the leasehold estate. Critical to applying this policy, 

however, is appreciation of the fact that “the separate value of 

a leasehold, if any, is based on whether the leasehold is 

economically advantageous to the lessee, that is a so-called 

bargain lease, and is freely assignable so that the lessee may 

realize the benefit of such bargain in the market place.”[25] 

23 Id. at 56, 278 S.E.2d at 355. 

24 216 W. Va. at 286, 607 S.E.2d at 392. 

25 Maplewood, 216 W. Va. at 286, 607 S.E.2d at 392 (quoting “Valuation of 

Leasehold Interests,” State Tax Commissioner’s Annual In-Service Training Seminar, 

12 
 

In UPE I, we examined our opinion in Maplewood for the limited purpose 

of assessing whether UPE had presented a challenge to taxability or valuation. We 

observed: 

Although this Court has not issued a syllabus point 

prescribing how leaseholds must be valued, we noted in 

Maplewood that the Tax Commissioner had developed an 

eight-step process for valuing leaseholds which requires at the 

outset “an initial determination . . . whether the lessee has a 

marketable right to assign or transfer the lease.” 216 W.Va. 

at 286, 607 S.E.2d at 392.[26] 

In footnote eight of UPE I, we acknowledged an issue relating to the Leasehold Appraisal 

Policy, but decided it did not need to be addressed: 

The Maplewood Court, ostensibly quoting this policy, 

explained further that “‘the separate value of a leasehold, if 

any, is based on whether the leasehold is economically 

advantageous to the lessee, that is a so-called bargain lease, 

and is freely assignable so that the lessee may realize the 

benefit of such bargain in the market place.’” 216 W.Va. at 

286, 607 S.E.2d at 392 (quoting “Valuation of Leasehold 

Interests, State Tax Commissioner’s Annual In–Service 

Training Seminar for Assessors, June 14, 1989.”). The circuit 

court maintains this language is not actually contained in the 

referenced seminar materials and was “mis-cited” in the 

opinion. Because this issue is not relevant to our resolution of 

the narrow issue presently before us, we decline to examine it 

further at this juncture.[27] 

June 14, 1989). Because this Court referred to this 1989 training seminar manual as the 

“Leasehold Appraisal Policy” in both Maplewood and UPE I, we will continue to use this 

term for clarity’s sake. 

26 UPE I, 238 W. Va. at 110, 792 S.E.2d at 609. 

27 UPE I, 238 W. Va. at 110 n.8, 792 S.E.2d at 609 n. 8. 

13 
In the present appeal, Mr. Musick argues that Maplewood was incorrectly 

decided, and, as a result, the circuit court erred in relying upon it. Mr. Musick contends 

that Maplewood incorrectly cited to the Valuation of Leasehold Interest Seminar Training 

Manual (otherwise referred to in Maplewood as the Leasehold Appraisal Policy) in 

holding that the separate value of a leasehold is based on whether leasehold is a bargain 

lease and freely assignable, as those terms are not contained in the Leasehold Appraisal 

Policy. Rather, the Leasehold Appraisal Policy instead refers only to marketability. 

According to Mr. Musick, while the Leasehold Appraisal Policy that was 

issued by the Tax Commissioner contains thirteen numbered pages, in Maplewood, this 

Court mistakenly considered a fourteenth page which was not a part of the Leasehold 

Appraisal Policy. Mr. Musick’s counsel asserts that the subject fourteenth page was 

attached to the Leasehold Appraisal Policy in that case and is a “portion of a tax 

department ruling given in response to inquiries regarding the taxation of the leasehold 

estate in real property held by a trust.” Mr. Musick asserts that it is not clear if this 

fourteenth page was a ruling by the Tax Commissioner, or if it was a non-binding 

technical assistance advisory under West Virginia Code §11-10-5r or some other private 

letter from the Tax Commissioner. 

14 
 

 

Mr. Musick complains that in Maplewood this Court cited language from 

the subject fourteenth page and incorrectly attributed the language to the Leasehold 

Appraisal Policy. Mr. Musick asserts that one can only conclude that this Court was 

under the mistaken impression that the fourteenth page was from the State Tax 

Commissioner’s Leasehold Appraisal Policy. Mr. Musick argues that because this 

fourteenth page is not a part of the official Leasehold Appraisal Policy, there are a 

number of outstanding questions that should be discussed regarding this issue on the 

record before the BER. 

This Court has held that “[a]n appellate court should not overrule a 

previous decision recently rendered without evidence of changing conditions or serious 

judicial error in interpretation sufficient to compel deviation from the basic policy of the 

doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the 

law.”28 Similarly, this Court has stated: 

No prior decision is to be reversed without good and 

sufficient cause; yet the rule is not in any sense ironclad, and 

the future and permanent good to the public is to be 

considered, rather than any particular case or interest. . . . 

Precedent should not have an overwhelming or despotic 

influence in shaping legal decisions. No elementary or wellsettled principle of law can be violated by any decision or any 

length of time. The benefit to the public in the future is of 

greater moment than any incorrect decision in the past. 

Where vital and important public and private rights are 

concerned, and the decisions regarding them are to have a 

28 Syl. Pt. 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974). 

15 
 

direct and permanent influence in all future time, it becomes 

the duty as well as the right of the court to consider them 

carefully, and to allow no previous error to continue, if it can 

be corrected. The reason that the rule of stare decisis was 

promulgated was on the ground of public policy, and it would 

be an egregious mistake to allow more harm than good to 

accrue from it. Much, not only of legislation, but of judicial 

decision, is based upon the broad ground of public policy, and 

this latter must not be lost sight of.[29] 

Cognizant of this standard, we find no good and sufficient cause to depart from our ruling 

in Maplewood. 

Even if this Court in Maplewood mistakenly attributed the language 

contained in a Tax Department ruling as being part of the Leasehold Appraisal Policy, 

this oversight has no bearing on the veracity of the decision. Whether the language came 

directly from the Leasehold Appraisal Policy or a ruling of the Tax Commissioner, it is 

clear in Maplewood that this Court relied upon that language to explain what constitutes 

separate and independent value for the assessment of leasehold interests.30 The State Tax 

29 Adkins v. St. Francis Hosp., 149 W.Va. 705, 719, 143 S.E.2d 154, 163 (1965) 

(internal citation and quotation omitted). 

30 While Musick asserts that the Leasehold Appraisal Policy does not expressly 

contain the terms freely assignable and bargain lease, it is evident that the Leasehold 

Appraisal Policy contemplated these factors. On page 5, it states: 

Before one proceeds with the valuation of leasehold 

interests there are several preliminary steps which should be 

covered. 

First, the lease contract should be examined to see 

whether an estate for years was created and are the 

marketable rights transferable. 

16 
 

Commissioner issued its Leasehold Appraisal Policy following Great A&P, and also 

adopted West Virginia Code of State Rules §110-1P-3.3, which sets forth the procedures 

for the valuation of leasehold interests.31 UPE argues that “the common thread” between 

Thus, it is understandable why the Tax Commissioner’s ruling, which cited the 

Leasehold Appraisal Policy, utilized the terms bargain lease and freely assignable in 

ascertaining the separate value of a leasehold. 

31 West Virginia Code of State Rules § 110-1P-3 sets forth how assessors are to 

value leaseholds in industrial and commercial real properties. It provides: 

3.3.1. General. 

3.3.1.1. A leasehold in real property is taxable for ad valorem 

property tax purposes, if it has a separate and independent 

value from the freehold. Where leaseholds are of short 

duration, the rent paid usually reflects income to the owner of 

the freehold commensurate with the fair market value of the 

real property. Under ordinary conditions, the leasehold itself 

will not have any ascertainable market value. Consequently, 

in normal circumstances, determine the appraised value of the 

freehold subject to a leasehold in the same manner that the 

appraised value of similar commercial or industrial real 

property not subject to a leasehold is determined. 

3.3.1.2. However, under circumstances involving long-term 

leaseholds where the leasehold is itself a marketable asset of 

value, the leasehold shall be valued as set forth in this rule. 

The leasehold interest being a chattel real shall be listed and 

taxed as Class III or Class IV tangible personal property 

depending on the location of the freehold. 

3.3.1.3. The appraised value of a freehold estate is the 

appraised value of the freehold determined without regard to 

the leasehold, minus the appraised value of the leasehold. 

3.1.4. In valuing a leasehold: 

17 
 

these authorities is a focus on whether or not the leasehold is marketable. UPE asserts 

that Maplewood directs that the determination of whether a leasehold is marketable is 

“whether the leasehold is economically advantageous to the lessee, that is a so-called 

3.3.1.4.a. The total value of the property must be estimated 

and then allocated among the various interests in the property 

under the terms of the lease; and 

3.3.1.4.b. The appraiser shall determine whether or not value 

has been created as a result of a favorable lease, in addition 

to the total value of the property. 

3.3.1.5. In deciding whether a leasehold has value, and if so, 

what value to assign, the appraiser shall: 

3.3.1.5.a. Estimate the value of the entire property, as though 

not encumbered by the lease; then 

3.3.1.5.b. Estimate the value of one (1) of the partial interests, 

either the leasehold estate of the lessee or the leased fee of the 

lessor. 

3.3.1.5.c. The appraiser shall deduct the value of the partial 

interest arrived at from the value of the entire property to 

obtain the value of the other partial interest. 

3.3.1.6. To value a leasehold interest, the appraiser shall 

consider the present (discounted) worth of the rent saving, 

when the contractual rent at the time of appraisal is less than 

the current market rent. If the land is improved by the lessee, 

then the value of the leasehold interest shall be the value of 

the saving in ground rent, if any, in addition to the value (not 

cost) of the improvements of the lessee. If the contractual rent 

is greater than the currently established market rent, the 

appraiser shall subtract present worth of the difference from 

the value of the improvement. 

W. Va. Code St. R. § 110-1P-3 (Emphasis added). This regulation had an effective date 

of July 1, 2013. 

18 
 

bargain lease, and is freely assignable so that the lessee may realize the benefit of such 

bargain in the market place.”32 UPE contends that as a result, Maplewood simply 

provides a framework for the definition of marketability, as used in Great A&P, West 

Virginia Code of State Rules §110-1P-3.3, and the Leasehold Appraisal Policy. We 

agree.33 

32 216 W. Va. at 286, 607 S.E.2d at 392. 

33 Mr. Musick asserts that pursuant to § 110-1P-3.3.1.2, this Court should 

determine that UPE has a separate and independent value and a marketable interest in the 

WVU lease because UPE was able to borrow money based on the fact that UPE had 

obtained the lease from WVU. He also maintains that UPE had a possessory interest in 

the property during the construction phase, as it controlled every aspect of the planning 

and construction of the project and received a developer’s fee in exchange. Additionally, 

he asserts that liability and casualty insurance are the responsibility of UPE, and under 

West Virginia Code § 33-6-3, the purchaser of insurance must have an insurable interest 

in the property insured. 

In arguing this, Mr. Musick additionally appears to assert that Maplewood cannot 

be reconciled with the regulations in light of changes made to West Virginia Code of 

State Rules § 110-1P-3 in 2013 because the former regulation promulgated in 1991 was 

“not as detailed on valuation of leasehold interests as the new regulation.” We find this 

argument unavailing. While the amendment made to West Virginia Code of State Rules 

§ 110-1P-3 in 2013 did in fact add more detail with respect to how a leasehold shall be 

valued, the initial threshold inquiry of determining whether “the leasehold is itself a 

marketable asset of value” remains unchanged from the prior version. See W. Va. Code 

St. R. § 110-1P-3.3.2.3 (“However, under circumstances involving long-term leaseholds, 

where the leasehold is itself a marketable asset of value, the leasehold shall be valued as 

set forth in this rule.”). 

UPE argues—and we agree—that Mr. Musick mistakenly conflates value with the 

concept of separate and independent value in assessing marketability. Under Great A&P, 

a leasehold interest has “separate and independent value only where it has itself become a 

marketable asset of value.” 167 W.Va. at 56, 278 S.E.2d at 355. (Emphasis added). 

Similarly, West Virginia Code of State Rules §110-1P-3.3.1.6 states that “[t]o value a 

leasehold interest, the appraiser shall consider the present (discounted) worth of the rent 

saving, when the contractual rent at the time of appraisal is less than the current market 

19 
 

Because we conclude that Maplewood is not in conflict with the Tax 

Commissioner’s regulations, we uphold the Maplewood framework, which holds that 

“the separate value of a leasehold, if any, is based on whether the leasehold is 

economically advantageous to the lessee, that is a so-called bargain lease, and is freely 

assignable so that the lessee may realize the benefit of such bargain in the market 

place.”34 So, the circuit court did not err in applying the Maplewood standard in 

determining that UPE’s leasehold interest did not have a separate and independent value. 

B. Mr. Musick’s Motion for Remand 

Having set forth the proper standard for assessing leasehold interests, we 

next consider the issue of whether the circuit court should have remanded the case to the 

BER under West Virginia Code §11-3-25(c).35 In UPE I, this Court found that the circuit 

rent.” The question is whether the lessee derives revenues from the leasehold interest 

itself and this can only occur where the lessee pays below-market rent and can alienate its 

leasehold interest to take advantage of the higher rent in the market place. As a result, it 

is irrelevant whether it secured bank financing, or would receive insurance proceeds. In 

order for a leasehold interest to have assessable value, the lessee must have rent savings 

that can be exploited in the marketplace and UPE did not. 

34 Maplewood, 216 W.Va. at 286, 607 S.E.2d at 392. 

35 West Virginia Code § 11-3-25(c) (2018) provides, in pertinent part: 

If there was an appearance by or on behalf of the 

taxpayer before either board, or if actual notice certified by 

the board, was given to the taxpayer, the appeal, when 

allowed by the court or judge, in vacation, shall be 

determined by the court from the record as so certified: 

20 
 

court was bound by the record created before the BER but noted in footnote 16 that West 

Virginia Code § 11-3-25(c) states that the circuit court may remand to the BER in order 

to more fully develop the record.36 Here, Mr. Musick asserts that remand to the BER was 

Provided, That in cases where the court determines that the 

record made before the board is inadequate as a result of the 

parties having had insufficient time to present evidence at the 

hearing before the board to make a proper record, as a result 

of the parties having received insufficient notice of changes in 

the assessed value of the property and the reason or reasons 

for the changes to make a proper record at the hearing before 

the board, as a result of irregularities in the procedures 

followed at the hearing before the board, or for any other 

reason not involving the negligence of the party alleging that 

the record is inadequate, the court may remand the appeal 

back to the county commission of the county in which the 

property is located, even after the county commission has 

adjourned sine die as a Board of Equalization and Review or 

a Board of Assessment Appeals for the tax year in which the 

appeal arose, for the purpose of developing an adequate 

record upon which the appeal can be decided. 

36 In footnote 16 of UPE I, we stated: 

As an appeal from the BER, the circuit court’s review 

on appeal (and therefore on remand) is limited to the record 

created before the BER and the circuit court operates under 

the same standard of review as that for an administrative 

appeal. See W. Va. Code § 11-3-25(c) (“If there was an 

appearance by or on behalf of the taxpayer before either 

board, or if actual notice, certified by the board, was given to 

the taxpayer, the appeal, when allowed by the court or judge, 

in vacation, shall be determined by the court from the record 

as so certified [.]”); Am. Bituminous Power Partners, L.P., 

208 W.Va. at 255, 539 S.E.2d at 762 (“[J]udicial review of a 

decision of a board of equalization and review regarding a 

challenged tax-assessment valuation is limited to roughly the 

same scope permitted under the West Virginia Administrative 

Procedures Act[.]”) But see W. Va. Code § 11-3-25(c) 

21 
 

proper for various reasons: (1) to argue the proper standard to determine valuation;37 (2) 

to develop testimony regarding the issue of valuation because the BER, having found that 

the issue was one of taxability, only made a determination regarding jurisdiction; and (3) 

to develop further relevant evidence of valuation because, although Commissioner Bloom 

(outlining circumstances under which circuit court may 

remand to BER for development of the record). 

UPE I, 238 W. Va. at 114 n. 16, 792 S.E.2d at 613 n. 16. 

37 As to this first argument, Musick contends that the circuit court should have 

remanded this case back to the BER so that the parties could develop a proper record to 

determine the viability of the Maplewood decision, a per curiam decision, as the record is 

incomplete as to the proper standard to determine valuation. He maintains that the BER 

should have been able to examine and determine if another legal standard, such as those 

found in the Tax Commissioner’s regulations, West Virginia Code of State Rules §110-

1P-3.3, is more appropriate. To the extent that the parties have had opportunity to brief 

the issue before the circuit court and this Court, and we have determined that the circuit 

court did not err in applying the Maplewood framework, we need not address this issue. 

And as this Court has made clear: 

Per curiam opinions have precedential value as an 

application of settled principles of law to facts necessarily 

differing from those at issue in signed opinions. The value of 

a per curiam opinion arises in part from the guidance such 

decisions can provide to the lower courts regarding the proper 

application of the syllabus points of law relied upon to reach 

decisions in those cases. 

Syl. Pt. 3, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001) overruled in part by 

Syl. Pt. 1, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). “Aim[ing] to 

extinguish any lingering doubts regarding the precedential value of [per curiam] 

opinions,” we held in Walker that “we strongly disagree” with the suggestion that 

anything beyond the syllabus in a per curiam opinion was merely obiter dicta, because 

adhering to that view “would be discarding many valuable cases in which the presence of 

unique facts has required this Court to determine whether settled legal precepts applied to 

those distinct factual scenarios.” Walker, 210 W.Va. at 495, 558 S.E.2d at 295. As 

discussed below, Musick had ample opportunity to litigate the issue of his valuation 

methodology before the BER. 

22 
 

 

attempted to ask a question regarding UPE’s 2014 earnings on the subject property, 

UPE’s counsel objected to and stopped that area of inquiry.38 

In support of his second argument for remand, Mr. Musick contends that 

because the BER’s decision clearly stated that it could not rule on the valuation matter 

because it was an issue of taxability, and therefore because this Court had no decision to 

review on the issue of value in UPE I, the circuit court should have likewise found that it 

had no decision to review from the BER and remanded the matter in order for the parties 

to develop a record on valuation of the UPE’s leasehold interest. Under West Virginia 

Code § 11-3-25, the circuit court’s decision to remand is discretionary. The statute 

clearly states that remand is proper only if the record developed before the BER is 

inadequate, and only if the inadequacy is not due to the negligence of the party asserting 

it.39 

38 This is the extent of Mr. Musick’s argument in this regard. This Court has made 

it clear that “‘[a] skeletal ‘argument,’ really nothing more than an assertion, does not 

preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.’” State, 

Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) 

(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). And “[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.” State v. LaRock, 196 W.Va. 294, 302, 470 

S.E.2d 613, 621 (1996) (citation omitted). Even if the Court were to consider this 

argument, to the extent that Mr. Musick chose to assess UPE’s leasehold interest based 

on the cost of construction-in-place, the argument that revenues could have been 

probative is misplaced. 

39 See W. Va. Code § 11-3-25. 

23 
In rejecting Mr. Musick’s argument that the case should be remanded to the 

BER, the circuit court concluded: 

[T]he evidence presented by UPE resolves the issue currently 

before the Court, and if more evidence is necessary to resolve 

this issue, then any failure to present evidence capable of 

rebutting UPE’s evidence is attributable to the Assessor’s 

negligence in failing to present it to the BER. 

The Court notes that the BER made its ruling regarding 

taxability and jurisdiction after both parties had a full 

opportunity to present evidence and be heard on the issue. 

Assessor Musick was given the opportunity to present 

evidence, (See Hr’g Tr. 34, Feb. 17, 2015 (Commissioner 

Callen explaining that “the assessor’s office may have an 

opportunity to present once Mr. Walls is completed”); 

(Commissioner Bloom asking Assessor Musick “[is] there 

anything that you would like, from the assessor’s office, to 

explain” and Assessor Musick responding, “No.”).) Assessor 

Musick was given the opportunity to present whatever 

evidence he wanted in support of his assessment of UPE’s 

leasehold interest. A remand now, in this Court’s opinion, 

would allow nothing more than for Respondent Musick to 

present evidence he perhaps should have presented before the 

BER. The remand exception contained in West Virginia Code 

§ 11-3-25(c) is designed to correct inadequacies in the record; 

it is not meant to allow a second bite at the apple. 

In reviewing the record before the BER, we conclude that the circuit court 

did not abuse its discretion. The record is clear that the BER made its ruling regarding 

taxability and jurisdiction only after both parties had a full opportunity to present 

evidence and be heard on the issue. 

24 
 

At the beginning of the hearing before the BER, UPE’s counsel, Mr. Walls, 

specifically argued that UPE had “an issue with the way the assessment was calculated” 

and that it believed “that the assessed value at U[niversity] Park should be zero. . . .” 

During the course of the entire hearing, UPE went on to present evidence attempting to 

show that Mr. Musick’s valuation methodology was erroneous. Mr. Walls represented to 

the BER that “[t]here’s no dispute that the only legal issues we’re here to talk about, and 

factual issues stemming from those legal issues, are whether this is a bargain lease and 

whether it’s freely assignable.” At the conclusion of all of the evidence, the BER 

announced that the issue was one of taxability, and thus, outside of its jurisdiction. In 

arguing whether the issue was one of taxability or valuation, the following exchange took 

place: 

MR. CALLEN40: That’s -- you know, that’s fine. I mean, 

it says very clearly that I’m not to -- I’m not -- we’re not 

allowed to decide taxability. 

MR. WALLS: And I’m not asking you to. But I 

understand. 

MR. CALLEN: But you are. 

MR. WALLS: I understand. 

MR. CALLEN: But you are. 

You said that -- you said, on three different 

occasions -- because I wrote it down -- “this assessment is 

40 County Commissioners Eldon Callen, Thomas Bloom and Edward Hawkins 

presided as the BER in this matter. 

25 
improper.” Improper means it is not taxable. So I took that 

you are arguing taxability. 

MR. WALLS: If you go back to the very beginning, I 

made it clear. The first words out of my mouth was this is 

about valuation. 

MR. CALLEN: Right. But I don’t pick and choose. I 

listen to everything, and then make my decision. 

MR. WALLS: Okay. Well, we’d ask you to set it to 

zero, then. 

MR. CALLEN: What’s that? 

MR. WALLS: The assessed value. 

MR. CALLEN: No, no. You did not prove by clear and 

convincing evidence that -- as to what the true value is and 

that the value was wrong. 

MR. WALLS: Okay. Could I have that part -- could the 

commission make its decision?
 

MR. BLOOM: Okay. Clarification. 

We voted on it. 

MR. CALLEN: Right. 

MR. BLOOM: It’s -- the decision is done. 

MR. WALLS: Okay. Thank you. 

Based upon the testimony in the record, UPE asserts that the BER made a 

decision on valuation subject to review and we agree. However, even if the BER had not 

26 
 

 

made a decision, the record was adequate for purposes of appellate review.41 During the 

course of the BER proceedings, Mr. Musick was given a full and fair opportunity to 

present evidence in support of his assessment of UPE’s leasehold interest. As UPE 

correctly contends, neither UPE nor Mr. Musick knew at the outset of the hearing that the 

BER might raise a jurisdictional issue, and both parties were therefore on notice to 

present their evidence and create a record. Accordingly, we conclude that the circuit 

court did not err in holding that Mr. Musick had an adequate opportunity to present 

evidence, thus foreclosing any right to remand. 

C. Burden of Proof 

Because valuations fixed by an assessing officer are presumed to be correct, 

the burden of showing an assessment to be erroneous is upon the taxpayer.42 Mr. Musick 

asserts that if this Court determines that Maplewood was properly decided, UPE did not 

meet its burden of proving (1) that the WVU lease is not a bargain lease, and (2) it is not 

freely assignable. 

41 Tug Valley Recovery Center, Inc. v. Mingo County Comm’n, 164 W. Va. 94, 

111, 261 S.E.2d 165, 175 (1979) (stating absence of formal decision by BER will not 

preclude an appeal “[s]o long as all documents utilized by the Board of Equalization and 

Review were placed before the circuit courts and so long as all other documents 

pertaining to the appeal were in the file.”). 

42 See Syl. Pt. 1, Western Pocahontas Properties, Ltd., 189 W.Va. 322, 431 S.E.2d 

661 (quoting Syl. Pt. 7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 

53, 303 S.E.2d 691 (1983)). 

27 
 

With regard to the first Maplewood factor—whether the lease is a bargain 

lease—Mr. Musick argues that the WVU lease is economically advantageous to UPE. 

Mr. Musick contends that UPE is a for-profit entity that will derive considerable revenues 

from the WVU lease and it is certain to be able to pay off the mortgage and profit from 

this WVU lease. On this basis, it urges the Court to determine that Respondent UPE has 

not met its burden of proof to show by clear and convincing evidence that this WVU 

lease is not a bargain lease. 

As to the second Maplewood factor—whether the lease is freely 

assignable—Mr. Musick contends that this Court should find that that the WVU lease is 

freely assignable because it contains the language, “consent shall not be unreasonably 

withheld, conditioned, or delayed.” Thus, he maintains that this term allows assignments 

absent objective and valid considerations.43 Further, Mr. Musick argues that WVU has 

already consented to an assignment in the event of a foreclosure or default on the part of 

UPE. Because of this, he contends this Court should find that WVU has already 

consented to an assignment in the WVU lease, and therefore the lease is freely 

assignable. 

To the contrary, UPE asserts that for its leasehold interest to have 

assessable value, both of the Maplewood factors must be present, but for UPE to meet its 

43 See e.g., Van Sloun v. Agans Bros., Inc., 778 N.W. 2d 174, 280 (Iowa 2010). 

28 
 

burden of proof in challenging the valuation, it must show only that one of the two 

factors is absent. When we review the record before the BER, it is evident that UPE met 

its burden of proof. 

First, in his testimony before the BER, Mr. Musick conceded that neither he 

nor anyone in his office used the West Virginia State Tax Commissioner’s methodology 

for the valuation of leasehold interests when he assessed Petitioner’s leasehold interest in 

University Park. 

MR. WALLS: Did you or anybody else in your office 

use the formula that the state tax commissioner directed 

assessors to use when assessing leasehold interests in West 

Virginia when you assessed the leasehold value of the lease at 

University Park? 

MR. MUSICK: No. 

Rather, Mr. Musick testified that his office assessed UPE’s leasehold interest by taking 

sixty percent of the cost of the construction-in-place as of the July 1, 2014, assessment 

date. Without citing any specific legal authority supporting the use of this standard, when 

asked by UPE’s counsel how he calculated the assessed value of the leasehold interest, he 

stated: 

Based on information that Mr. Nesselroad presented my 

commercial appraiser, Chris Michael, when he asked what’s 

on -- as of July 1 of 2014, what was the completion -- 

percentage complete of the construction. And I think that was 

-- 20.6 percent is what was submitted. 

29 
 

 

 

And they took that of the total value that was 

submitted of what the project would be to get it appraised at 

60 percent of that to get the assessed value. 

*** 

Based on the partial completed construction of the 

personal property, yes, that’s what we do [to assess the value 

of a leasehold interest]. 

Later, when Mr. Bloom again asked Mr. Musick how he assessed the 

leasehold interest, Mr. Musick affirmed his reliance upon a percentage of the project cost: 

MR. MUSICK: Based on the information that was 

presented for percentage of – 

MR. BLOOM: Okay. 

MR. MUSICK: -- completion of the project as of 

July 1 of 2014. 

MR. BLOOM: Okay. 

MR. MUSICK: Okay? 

Then with that – with the total cost of the 

project, that, then, was taken on to get 60 percent of that to 

get our assessed value. 

So you had your percentage times the total cost 

of the project to get your appraised, then 60 percent of that to 

get your assessed value. 

MR. BLOOM: Okay. 

*** 

 MR. MUSICK: And that was just completion of 

the project at 20.6 percent as of July 1 of 2014. 

30 
 

Based on Mr. Musick’s admission that he failed to use the Tax 

Commissioner’s methodology for assessing leasehold interests, we conclude that his 

assessment was improper. And, even when UPE’s counsel questioned Mr. Musick about 

the applicability of the Maplewood factors and whether they had been satisfied, Mr. 

Musick conceded that UPE’s leasehold interest was not freely assignable. In reviewing 

the evidence presented before the BER, the circuit court summarized the testimony as 

follows: 

[B]ased on the framework contained in Maplewood, supra, 

this Court finds that Mr. Nesselroad testified at the February 

17, 2015 hearing before the BER that the lease held by UPE 

was not freely assignable. (Hr’g Tr. 10-12, Feb. 17, 2015.) 

Assessor Musick also testified. Assessor Musick initially 

contended that the leasehold interest was both freely 

assignable and a bargain lease. (Id. at 26.) Later, however, 

Assessor Musick agreed that section 28.1 of the Lease and 

Development Agreement imposed a condition – namely that 

it II could not be assigned without the prior written consent of 

the lessor – that rendered the lease not freely assignable. (Id. 

at 31.) At the end of his testimony, attorney Walls asked 

Assessor Musick the following: “So I assume you concluded 

that the lease was not a bargain lease.” Assessor Musick 

responded, “Right” (Id.) 

Pursuant to the Maplewood framework, this Court 

concludes that based on the evidence presented on February 

17, 2015, UPE proved by clear and convincing evidence 

before the BER that the 2015 assessment was erroneous. If a 

leasehold interest is not freely assignable and is not a bargain 

lease, it has no value independent of the freehold interest. See 

Maplewood, 216 W. Va. at 286, 607 S.E.2d at 392. Because 

Respondent Musick agreed that the lease was neither a 

bargain lease nor freely assignable (Hr’g Tr., Feb. 17, 2015, 

at 30-31), and because he agreed that he was not entitled to 

31 
 

tax the property if West Virginia University said the lease 

was not freely assignable (Hr’g Tr., Feb. 17, 2015, at 27-28), 

this Court finds that Petitioner showed by clear and 

convincing evidence that the 2015 valuation of the leasehold 

interest should be corrected to $0. 

While we agree with the circuit court that Mr. Musick ultimately agreed 

with UPE’s counsel’s leading question that the lease “was not a bargain lease,” we 

observed in UPE I that “[Mr. Musick] was equivocal on this issue, initially stating that he 

believed it was a bargain lease, but then agreeing with counsel’s leading question 

indicating that respondent concluded it was not a bargain lease.”44 The testimony was as 

follows: 

[MR. WALLS]: Okay. Did you do anything to determine 

if the UPE lease is a bargain lease? 

[MR. MUSICK]: We looked at them collecting the rent, 

feeling that there was a value there coming in as an 

independent value. 

[MR. WALLS]: Okay. So I assume you concluded that 

the lease was not a bargain lease. 

[MR. MUSICK]: Right. 

Giving Mr. Musick the benefit of the doubt on this issue, we are not entirely inclined to 

agree with the circuit court’s finding that UPE proved this particular factor with clear and 

convincing evidence. However, in the final analysis, this issue is irrelevant as there is no 

question Mr. Musick conceded that the lease was not freely assignable: 

44 UPE I, 238 W. Va. 106, 108 n. 3, 792 S.E.2d at 607 n. 3. 

32 
BY MR. WALLS: Let me see if I read this correctly, sir. 

Section 28.1 of the lease and development agreement between 

UPE and WVU states as follows, quote, Lessee may not at 

any time sell, assign, convey, or transfer, paren, each, comma, 

as applicable, comma, a transfer, closed quote, this lease to 

another person without the prior written consent of lessor 

which consent shall not be unreasonably withheld, 

conditioned, or delayed, period. 

Did I read that correctly? 

A: That time you did. 

Q: Okay. And in this context, you understand that the 

term “lessee” means UPE; right? 

A: Right. 

Q: And you understand that the term “lessor” means 

WVU; right? 

A: Correct. 

Q: And does this sentence mean to you that the lease is 

not freely assignable? 

A: The way it’s written, yes. 

Critically, despite all of this testimony, neither Mr. Musick nor his Chief 

Deputy, Chuck Penn, offered any further clarifying testimony supporting his assessment 

methodology, even when invited to do so by the members of the BER. Mr. Bloom asked 

Mr. Musick “is there anything that you would like, from the assessor’s office, to 

explain?” Mr. Musick simply replied: 

No. I mean, you know, our information we gathered to 

get to that assessed value is just what we said -- based on that 

33 
 

-- and some of the stuff we gathered through that we thought 

was a separate value based on that with the collection of rent. 

So there’s a lot of that information we had. 

I’m not quite sure of the other one. That’s why we 

went with the value on top of that. 

Additionally, when Commissioner Callen asked Mr. Penn if he wished to ask questions 

of Mr. Nesselroad, he declined to do so. Following his direct examination by UPE’s 

counsel, Mr. Musick was asked by Commissioner Bloom whether he wished “to make a 

final statement” and also declined. Mr. Magro, the Assistant Prosecuting Attorney, 

likewise declined to present any evidence or argument.45 

Because the record before us demonstrates that Mr. Musick did not apply 

the proper standard for assessing leasehold interests and because he also agreed that the 

lease was not freely assignable, this Court concludes that UPE showed by clear and 

convincing evidence that the 2015 valuation of the leasehold interest should be corrected 

to $0. Therefore, we affirm the circuit court’s ruling. 

45 Also, UPE notes that this Court has not defined the circumstances by which a 

leasehold interest is freely assignable, but asserts that other jurisdictions have defined a 

freely assignable lease by “reference to the absence of restrictions on assignment.” See 

e.g. Corbett v. Firstline Sec., Inc., 687 F.Supp. 2d, 124, 129 (2009) (“Under New York 

law, the benefits and burdens of contracts are freely assumed or assigned absent a 

contractual provision to the contrary”). UPE contends that applying that definition here, 

the leasehold interest is clearly not freely assignable, because the lease prohibits free 

alienability and limits UPE’s use of University Park to certain permitted tenants for 

permitted uses, within WVU’s written consent, and because the Leasehold Deed of Trust 

prohibits UPE from selling, transferring, exchanging, or otherwise disposing of its 

leasehold interest subject to certain enumerated exceptions. We agree. 

34 
IV. CONCLUSION 

We affirm the February 28, 2017, order of the Circuit Court of Monongalia 

County granting UPE’s Petition for Appeal and correcting the assessment for the 2015 

tax year to $0. 

Affirmed. 

35