STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Thomas I. Palley, FILED Petitioner Below, Petitioner 

January 30, 2015 

RORY L. PERRY II, CLERK vs) No. 14-0686 (Tucker County 14-P-6) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Tucker County Commission 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Thomas I. Palley, appearing pro se, appeals the order of the Circuit Court of 

Tucker County, entered July 14, 2014, that dismissed his appeal from a decision of Respondent 

Tucker County Commission, sitting as the Board of Equalization and Review, because petitioner 

failed to file the record before the board with the circuit court. Respondent, by counsel Raymond 

K. LaMora, III, filed a summary response in support of the circuit court’s order. 

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. 

According to petitioner, the Tucker County Assessor (“Assessor”) valued his property at 

$344,200.00, for the 2014 tax assessment, which represented a 42.8% increase from the Assessor’s 

previous valuation. Petitioner challenged the Assessor’s 2014 assessment before respondent in its 

capacity as the Board of Equalization and Review. Following a hearing, respondent upheld the 

assessment on March 5, 2014. 

On March 31, 2014, petitioner appealed respondent’s decision to uphold the assessment to 

the circuit court. Respondent filed a motion to dismiss. On July 11, 2014, the circuit court 

dismissed petitioner’s appeal pursuant to West Virginia Code §§ 11-3-24 and 11-3-25,1 and Tax 

1 West Virginia Code § 11-3-24 delineates respondent’s powers and duties as the Board of 

Equalization and Review, including the right of a taxpayer to appeal the board’s decision (with 

reference to West Virginia Code § 11-3-25). See W.Va. Code § 11-3-24(j). West Virginia Code § 

11-3-25 sets forth the procedure for reviewing the board’s decision, including the requirements 

that the appeal—and the record that was before the board—each must be filed with the circuit 

court by certain deadlines. See W.Va. Code §§ 11-3-25(a) and (b). 

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Assessment Against Purple Turtle, LLC v. Gooden, 223 W.Va. 755, 679 S.E.2d 587 (2009) 

(reaffirming prior case law interpreting West Virginia Code §§ 11-3-24 and 11-3-25), under which 

a party appealing a decision of a Board of Equalization and Review must both (1) file his appeal; 

and (2) file the record before the board with the circuit court by the time set forth in West Virginia 

Code § 11-3-25.2 It is undisputed that petitioner did not file the record before the board with the 

circuit court. 

Petitioner now appeals the circuit court’s July 11, 2014, dismissal order. “Appellate review 

of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex 

rel. McGraw v. Scott Runyan Pontiac Buick, Inc., 194 W.Va. 770, 773, 461 S.E.2d 516, 519 

(1995). 

On appeal, petitioner argues that this Court should reconsider its prior decisions that have 

interpreted West Virginia Code §§ 11-3-24 and 11-3-25 as requiring a party to both (1) file his 

appeal; and (2) file the record before the board with the circuit court by the time set forth in West 

Virginia Code § 11-3-25.3 Respondent counters that a similar request to revisit prior holdings was 

made and rejected by this Court in Purple Turtle. In Purple Turtle, we found that the taxpayers did 

not perfect their appeal to the circuit court, concluding as follows: 

. . . [W]e find no justification for deviation from the methodology 

established by statute and solidified by Rawl Sales[and Processing Co. v. County 

Comm’n, 191 W.Va. 127, 443 S.E.2d 595 (1994)] and In re Stonestreet[, 147 

W.Va. 719, 131 S.E.2d 52 (1963)]. Where . . . such record is not provided within 

thirty days, the appeal has not been properly perfected and must be refused. Based 

upon that standard, we hold that the Taxpayers’ appeal in the present case should 

have been refused due to their failure to comply with mandatory statutory 

jurisdictional requirements. 

223 W.Va. at 762, 679 S.E.2d at 594 (Footnote omitted.) Thus, we determine that petitioner failed 

to perfect his appeal to the circuit court by not filing with the court the record before the board as is 

required by West Virginia Code §§ 11-3-24 and 11-3-25. Therefore, we conclude that the circuit 

court did not err in dismissing petitioner’s appeal. 

For the foregoing reasons, we affirm. 

2 In 2010, the Legislature amended West Virginia Code § 11-3-25 to permit the taxpayer to 

file the record before the board “within thirty days after the petition for appeal is filed.” W.Va. 

Code § 11-3-25(b). 

3 In addition, petitioner challenges West Virginia Code § 11-3-25’s requirement that the 

taxpayer’s appeal generally must be determined on the basis of the record made before the board 

and also argues the merits of his appeal of why he believes the Assessor’s assessment of his 

property was erroneous. We do not address these additional arguments because the circuit court 

correctly dismissed petitioner’s appeal for a failure to file the record. See Discussion, infra. 

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Affirmed. 

ISSUED: January 30, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry 

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