STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Amy R. Rhoe, a/k/a Amy R. Wise, FILED 

Petitioner, Petitioner Below November 18, 2016 

RORY L. PERRY II, CLERK vs.) No. 15-1038 (Berkeley County 14-AA-9) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Larry A. Hess, Assessor for Berkeley County,
 

West Virginia; Douglas E. Copenhaver, Jr.,
 

President, Berkeley County Council; and
 

Berkeley County Council;
 

Respondents, Respondents Below
 

MEMORANDUM DECISION 

Petitioner Amy R. Rhoe, a/k/a Amy R. Wise,1 pro se, appeals the August 17, 2015, order 

of the Circuit Court of Berkeley County affirming the November 20, 2014, order of the Berkeley 

County Council which upheld an increased tax assessment on petitioner’s real property for the 

2014 tax year. Respondents Larry A. Hess, Assessor for Berkeley County, West Virginia; Douglas 

E. Copenhaver, Jr., President, Berkeley County Council; and Berkeley County Council 

(collectively “Assessor”), by counsel Norwood Bentley, III, filed a response.2 

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 a residence and a small farm located on parcel 21 of map 21A, Hedgesville 

District 04, Berkeley County, West Virginia.3 From at least 2005 through the 2013 tax year, there 

1

Rhoe is petitioner’s married name. 

2

Petitioner complains that Mr. Bentley does not have authority to represent all respondents 

on the ground that he made an appearance only on behalf of the Assessor. However, petitioner 

acknowledges that Mr. Bentley is the legal director for Berkeley County. Therefore, we find that 

Mr. Bentley has the authority to represent all respondents. 

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According to the property card for petitioner’s property for the 2014 tax year, petitioner 

(continued . . .) 

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was a 48% downward adjustment on the valuation of petitioner’s real property based on a flood 

influence factor. According to the Assessor, an “influence factor” constitutes “a factor serving to 

either devalue or enhance the value of a particular parcel of land, or portions thereof, relative to the 

norm for which the base unit values were established.” For purposes of establishing base unit 

values, the Assessor defines petitioner’s neighborhood as all the properties along Wimpy’s Lane, 

the road on which petitioner lives. 

As applied to the risk of flooding, an influence factor “is reserved for application to those 

parcels subject to a loss of value due to the potential for periodic flooding when compared to 

similar lots in the area where this problem does not exist.” Given that no other property along 

Wimpy’s Lane had an adjustment based on a flood influence factor and the Assessor’s records 

going back to 2005 did not reveal a reason as to why there was an adjustment regarding 

petitioner’s real property based on such a factor,4 the Assessor eliminated the 48% downward 

adjustment in his valuation of petitioner’s property for the 2014 tax year. The elimination of the 

downward adjustment meant that the assessment for the 2014 tax year was $30,600, an increase of 

$15,160 from the assessment for the 2013 tax year, raising petitioner’s property taxes by $112.92. 

Accordingly, the Assessor sent petitioner a notice of increased assessment dated December 27, 

2013. The notice informed petitioner that she could appeal the 2014 tax assessment to the Berkeley 

County Council, sitting as the board of equalization and review (“board”), if she filed a written 

protest with the Clerk of the Berkeley County Council by February 20, 2014. The notice listed the 

board’s address and indicated that the board would hear appeals during February of 2014. 

Petitioner appealed the Assessor’s assessment for the 2014 tax year to the board. Following 

a February 20, 2014, hearing, the board upheld the tax assessment.5 Petitioner appealed the 

board’s February 20, 2014, order to the Circuit Court of Berkeley County. By order entered 

September 25, 2014, the circuit court found that a review of the recording of the February 20, 

2014, hearing reflected discussion of exhibits not in the record before the court. Accordingly, the 

circuit court remanded the case to the board pursuant to West Virginia Code § 11-3-25(c) “for the 

purpose of developing an adequate record upon which the appeal can be decided.” The board held 

the remand hearing on October 16, 2014. At that hearing, petitioner requested that the parties be 

allowed to engage in discovery. The Assessor objected on the ground that the purpose of the 

utilizes one acre for her residence and .41 acres as farmland. 

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The Assessor’s chief deputy, Brad Unger, testified at a November 13, 2014, hearing that 

the records go back only to 2005 because that was the year during which the Assessor’s office 

changed to a new computer system. 

5

Petitioner complains that the board’s February 20, 2014, order was signed only by the 

board’s president rather than by a quorum of the board. The Assessor counters that this issue has 

been rendered moot given that the February 20, 2014, order was superseded by the board’s 

November 20, 2014, order. We agree with the Assessor and find that we do not need to address this 

issue. 

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remand from the circuit court was to allow the parties to enter their exhibits in the record so that the 

court could consider petitioner’s appeal. The board ruled that, because petitioner was confused as 

to the purpose of the remand, both parties would be provided with thirty days to prepare their 

exhibits and rescheduled the hearing for November 13, 2014.6 

At the November 13, 2014, hearing, the parties entered their exhibits into the record and 

were also permitted to present testimony of witnesses.7 The Assessor’s chief deputy, Brad Unger, 

testified that an adjustment based on an influence factor was considered “outside the norm” and, 

therefore, guidance from the West Virginia Tax Department indicates that the reason for any such 

adjustment should be recorded. Mr. Unger searched the records and could not find any recorded 

reason for the 48% downward adjustment on the valuation of petitioner’s real property. Mr. Unger 

testified that no other property in petitioner’s neighborhood—even those properties, on the other 

(western) side of Wimpy’s Lane, that were in a recognized floodplain—had an adjustment based 

on a flood influence factor.8 Given that the placement of a flood influence factor on petitioner’s 

property was “outside the norm” and the requirement under article ten, section one of the West 

Virginia Constitution for uniform and equal taxation,9 Mr. Unger stated that the 48% downward 

adjustment had to be taken off petitioner’s property in order to ensure uniform and equal taxation 

in the Wimpy’s Lane neighborhood. In later testimony, the Assessor concurred with Mr. Unger 

that the Assessor was required to eliminate the downward adjustment in his valuation of 

petitioner’s property. 

The board requested that the Assessor introduce a topographical map of petitioner’s 

neighborhood so that it could determine the elevations in that area. Petitioner objected on the 

ground that a foundation needed to be laid for the map’s admission. Petitioner was allowed to 

question Roger Kirkbright of the Assessor’s office as to the origin of the map. Following Mr. 

Kirkbright’s testimony, petitioner withdrew her objection and the topographical map was admitted 

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On appeal, petitioner states that she was also confused as to the role in which the board 

acted at the October 16, 2014, hearing because, by that time, the board was regularly sitting as the 

board of assessment appeals rather than the board of equalization and review. However, given that 

October 16, 2014, hearing was held pursuant to a remand following the board’s February 20, 2014, 

order, we find that the board was acting in its capacity as the board of equalization and review. 

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Most of the testimony came from petitioner and the Assessor’s chief deputy, Brad Unger, 

and was in support of the parties’ respective exhibits as each was introduced into evidence. 

8

Mr. Unger testified that a flood influence factor was not used to make a downward 

adjustment in the valuation of the properties on Wimpy’s Lane that were in the recognized 

floodplain because those properties were instead valued at a lower rate in recognition of their 

locations inside the floodplain. 

9

Article ten, section one of the West Virginia Constitution provides, in pertinent part, that 

“taxation shall be equal and uniform throughout the state, and all property, both real and personal, 

shall be taxed in proportion to its value to be ascertained as directed by law.” 

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into evidence. 

By order entered November 20, 2014, the board upheld the Assessor’s assessment for the 

2014 tax year based on Mr. Unger’s testimony. The board found, as follows: 

. . . Mr. Unger testified that he was unable to find any documented reason 

for the flood influence factor . . . to have been applied to the subject property and 

that its removal was done to make certain that the constitutional requirement of fair 

and equitable taxation [was met] in Berkeley County. The flood influence factor 

enjoyed by [p]etitioner was unfair and gave her an advantage over other property 

owners in the same neighborhood. 

According to the topographical map admitted into evidence, petitioner’s real property “is 

not unique in its topography and is not influenced any differently than other properties in the 

neighborhood.” (emphasis added). The board further found that, while “the very northwest corner” 

of petitioner’s property may be encompassed by the floodplain that is located on the western side 

of Wimpy’s Lane, the Berkeley County floodplain map, which was also admitted as an exhibit, 

showed that the property had only 1% annual chance of flooding. Therefore, the board concluded, 

as follows: 

. . . Petitioner failed to show by clear and convincing evidence that the 

Assessor’s assessment . . . was erroneous. The Assessor, on the other hand, 

presented a cogent, understandable case, compelling the [board] to be persuaded 

that the flood influence factor which was removed from consideration of the 

subject property should never have been applied to the property in the first 

instance[.] 

By order entered August 17, 2015, the circuit court affirmed the board’s November 20, 

2014, order upholding the 2014 tax assessment on petitioner’s property. First, the circuit court 

rejected petitioner’s contention that the December 27, 2013, notice of increased assessment was 

constitutionally deficient because it did not contain an explanation of why the Assessor removed 

the 48% downward adjustment on her real property. The circuit court held that, pursuant to this 

Court’s decision in Lee Trace, LLC v. Raynes, 232 W.Va. 183, 191, 751 S.E.2d 703, 711 (2013), a 

notice of increased assessment must sufficiently inform the taxpayer of her right to appeal the 

assessment and that the notice in this case did so. Next, the circuit court determined that 

petitioner’s due process rights were not violated by the denial of her request for discovery at the 

October 16, 2014, hearing. Last, the circuit court ruled that the board afforded due process and a 

fair hearing to petitioner. The circuit court specifically rejected petitioner’s contention that the 

board was “somehow interested in unfairly treating [petitioner]” because some members may have 

had experience in property development. 

Petitioner now appeals the circuit court’s August 17, 2015, order affirming the board’s 

November 20, 2014, order upholding the 2014 tax assessment. In syllabus point one of In re Tax 

Assessment of Foster Foundation’s Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 

150 (2008), we held that circuit court orders are reviewed under the following standard: 

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“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.” 

Syllabus point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). 

On appeal, petitioner first complains that the Assessor’s attorney drafted the circuit court’s 

August 17, 2015, order. We find such a complaint does not constitute a basis for reversal because 

“we concern ourselves not with who prepared the findings for the circuit court, but with whether 

the findings adopted by the circuit court accurately reflect the existing law and the trial record.” 

State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). 

Next, petitioner contends that she was afforded due process by neither the circuit court nor 

the board. “Due process of law is synonymous with fundamental fairness.” State ex rel. Peck v. 

Goshorn, 162 W.Va. 420, 422, 249 S.E.2d 765, 766 (1978). With regard to the circuit court’s 

September 25, 2014, remand to the board, petitioner alleges that the circuit court failed to give the 

parties clear directions as to the remand’s purpose. We find that the circuit court provided clear 

directions by quoting West Virginia Code § 11-3-25(c) in stating the remand was “for the purpose 

of developing an adequate record upon which the appeal can be decided.” Moreover, to the extent 

that petitioner was confused as to how she was to comply with the September 25, 2014, order, the 

board provided petitioner with an additional thirty days to prepare her exhibits for introduction 

into the record. Therefore, we conclude that the circuit court’s remand of the case comported with 

due process of law. 

More generally, petitioner asserts that she was deprived of adequate notice and a fair 

opportunity to be heard. See Peck, 162 W.Va. at 422, 249 S.E.2d at 766 (discussing two elements 

comprising due process of law). With regard to the adequacy of the notice of increased assessment, 

the Assessor argues that the notice complied with our directive in Lee Trace that such a notice 

should sufficiently inform the taxpayer of her right to appeal the assessment. See 232 W.Va. at 

191, 751 S.E.2d at 711. We agree and find that the notice of increased assessment in this case 

comported with due process. Upon our viewing of the recordings of the October 16, 2014, and 

November 13, 2014, hearings, we further reject petitioner’s contention that the board did not 

provide her with a fair opportunity to be heard. As previously noted, when petitioner exhibited 

some confusion as to how she was to proceed at the October 16, 2014, hearing, the board 

rescheduled the hearing to give petitioner an additional thirty days to prepare her exhibits. At the 

November 13, 2014, hearing, we find that the board attentively listened to petitioner’s testimony, 

as evidenced by the board’s questions regarding her exhibits, and also permitted petitioner to 

question Mr. Kirkbright as to the origin of the topographical map before allowing it into evidence. 

Accordingly, we conclude that petitioner was afforded due process of law.10 

10To the extent that petitioner still makes the allegation that the board was “somehow 

interested in unfairly treating [petitioner],” we concur in the circuit court’s rejection of this 

allegation on the ground that it is unsubstantiated. 

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Finally, petitioner challenges the Assessor’s increased assessment on her real property for 

the 2014 tax year. Generally, an assessor’s valuation of property for taxation purposes are 

presumed to be correct, and “[t]he burden of showing an assessment to be erroneous is . . .upon the 

taxpayer[.]” Syl. Pt. 1, Western Pocahontas Properties, Ltd. v. County Commission of Wetzel 

County, 189 W.Va. 322, 431 S.E.2d 661 (1993) (internal quotations and citations omitted). An 

assessment approved by a board of review and equalization and upheld by the circuit court will not 

be reversed “unless plainly wrong.” Syl. Pt. 3, id. at 322-23, 431 S.E.2d at 661-62 (internal 

quotations and citations omitted). As to the taxpayer’s burden of proof, in syllabus point five of 

Foster Foundation, we held that “[a] taxpayer challenging an assessor’s tax assessment must 

prove by clear and convincing evidence that such tax assessment is erroneous.” 223 W.Va. at 16, 

672 S.E.2d at 152, overruling, Eastern American Energy Corp. v. Thorn, 189 W.Va. 75, 428 

S.E.2d 56 (1993), and Killen v. Logan County Commission, 170 W.Va. 602, 295 S.E.2d 689 

(1982). 

Petitioner contends that there was insufficient evidence to show that the Assessor correctly 

eliminated the 48% downward adjustment on her property based on a flood influence factor. The 

board found that, although the burden of proof was on petitioner, see Western Pocahontas, 189 

W.Va. at 322, 431 S.E.2d at 661, syl. pt. 1, it was the Assessor who presented a compelling case 

that “the flood influence factor which was removed from consideration of the subject property 

should never have been applied to the property in the first instance.” 

Petitioner seeks to undermine the board’s conclusion that a flood influence factor should 

never have been applied by attacking its finding that her property was neither “unique” nor 

“influenced [by potential flooding] any differently than other properties in the neighborhood.” 

First, petitioner asserts that her property is unique in the Wimpy’s Lane neighborhood because she 

uses it as farmland. The Assessor counters that the fact that a portion of the property is farmland 

was considered in the valuation of the property. We find that the Assessor took the categorization 

of petitioner’s property into consideration because Mr. Unger testified that the portion of the 

property used by petitioner as farmland was valued as such. 

Second, petitioner contends that it is not impossible that her property may be affected by a 

flood event. We find that the board took this into account by finding that, while “the very 

northwest corner” of petitioner’s property may be encompassed by the floodplain that is located on 

the western side of Wimpy’s Lane, the Berkeley County floodplain map shows that the property 

has only 1% annual chance of flooding. Based on our review of the record on appeal, we find that 

the board’s determination is not plainly wrong. Therefore, we conclude that the board did not err in 

finding that petitioner failed to meet her burden of showing that the Assessor incorrectly removed 

the flood influence factor on her property and eliminated the 48% downward adjustment of the 

property’s value in his assessment for the 2014 tax year. 

For the foregoing reasons, we affirm the August 17, 2015, order of the Circuit Court of 

Berkeley County. 

Affirmed. 

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ISSUED: November 18, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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