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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Martinsburg IRS OC, LLC,

Defendant Below, Petitioner

vs.) No. 19-0193 (Berkeley County CC-02-2018-P-452)

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 

FILED

March 20, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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