STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

David W. Hill and Suellen H. Hill, FILED 

Plaintiffs Below, Petitioners November 18, 2016 

RORY L. PERRY II, CLERK 

vs) No. 16-0219 (Harrison County 11-C-94) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Lone Pine Operating Company, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioners David W. Hill and Suellen H. Hill, by counsel Stephen A. Wickland, appeal 

the April 21, 2015, order setting aside the tax deed, determining oil and gas interests, and 

distributing funds and the January 29, 2016, order denying their motion to alter or amend the 

April 21, 2015, order, both entered by the Circuit Court of Harrison County. Respondent Lone 

Pine Operating Company, by counsel Gregory A. Morgan, filed its response to which petitioners 

submitted a reply. 

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. For these reasons, a memorandum 

decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioners are the owners of the surface of a tract or parcel of land of 364.60 acres in 

Harrison County, West Virginia. The land was conveyed to them by deed dated February 25, 

1976, though the deed reserved and did not convey “all of the oil and gas and all other minerals.” 

The acreage at issue was part of a tract of 1,300 acres that Luther Haymond leased to South Penn 

Oil Company, its successors and assigns, for the purpose of mining and operating for oil and gas 

for a primary term of five years and so long thereafter as oil or gas was produced from the 

leasehold premises beginning in 1899. The interest in both the minerals and the surface changed 

hands numerous times through deeds and wills. According to the circuit court, in 1988, the 

Harrison County Assessor erroneously created duplicate assessments for the “Interest in 1300 as 

Lease Oil & Gas (Bruce Haymond)” to William L. Mitchell Jr. (“Mitchell”), Suzan Sigmond 

(“Sigmond”), and Genevieve Rapp (“Rapp”) (who it appears died several years earlier) because 

the assessor was not able to match the 1,300 acre lease with the actual 376 1⁄2 acre mineral 

assessments. The duplicate assessments describe the property as “Leased” to designate that they 

were created from the production reports rather than from a deed, will, or court order. The circuit 

court later found that both the West Virginia State Tax Department and the real estate division of 

the West Virginia Auditors Office advised local authorities that any assessments carrying the 

“Leased” designation should be suspended from sale because they were not created by a deed, 

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will, or court order and selling them would violate the provisions of West Virginia Code § 11-4­

9. For tax year 1989, all of the assessments were paid except for the duplicate assessments in the 

names of Mitchell and Rapp, which were not paid and were “sold to the State.” By tax deed 

dated June 27, 1994, the Deputy Commissioner of Forfeit and Delinquent Lands for Harrison 

County conveyed the real estate in the names Mitchell and Rapp, being the 1989 assessments, to 

petitioners. 

Petitioners filed suit on March 8, 2011, seeking to quiet title and distribute oil and gas 

royalties. Petitioners asserted that the 1,300 acre tract of land was subject to an April 1, 1980, 

pooling agreement that divided the royalties as follows: a) 25% to Pennzoil, now East Resources; 

b) 25% to Eleanor B. Watson, now J.E. Watson Trust B.; c) 25% to Emma Finley Aderholt, now 

Norma Jean Coleman; d) 17.96% to Rapp, now petitioners; e) 3.351% to Mitchell now 

petitioners; and f) 3.351% to Sigmond, now respondent. Respondent filed a counterclaim 

disputing the validity of the tax deed under which petitioners claimed title to certain undivided 

interests in oil and gas underlying the 376 1⁄2 acres within the 1,300 acres, asserting that the 

assessments that were the basis for the tax deed were erroneous duplicate assessments. Following 

preliminary hearings, a dispute arose between petitioner and respondent as to the ownership of 

the 17.96% interest owned by Rapp and a 3.351% interest owned by Mitchell. All other parties 

were dismissed from the litigation. According to petitioners, the dispute centered on alleged 

double taxation. Mitchell had received a per acre tax from the Harrison County Sheriff on 376 1⁄2 

acres of oil and gas, which he paid. He also received a royalty based tax on the 1,300 acre leased 

oil and gas. He failed to pay the leased entry for himself and Rapp, his aunt. Therefore, 

petitioners assert that they purchased those entries at a tax sale in 1994. 

On February 15, 2012, both respondent and petitioners filed motions for summary 

judgment, and both parties submitted responses. The circuit court heard argument on those 

motions on March 9, 2015, and on April 21, 2015, the circuit court entered its “Order Setting 

Aside Tax Deed, Determining Oil and Gas Interests, and Distributing Funds.” In its order, the 

circuit court found that the Haymond lease was still in force and a number of oil and gas wells 

had been drilled on the property, including petitioners’ 364.60 acre surface tract. The court also 

found that the 1976 deed was specifically made subject to the Haymond lease. By mineral deed 

dated July 16, 2010, respondent acquired “all rights, interest, and royalties” of Mitchell in and to 

the oil, gas, and other minerals in and under and that may be produced from the 1,300 acres. By 

mineral deed dated July 23, 2010, and corrective mineral deed dated September 22, 2010, 

respondent acquired from Suzan and her husband all rights, interests, and royalties in and to the 

oil, gas, and other minerals in and under and that may be produced from the 1,300 acre tract. 

According to the circuit court’s order, the tax deed from the Deputy Commissioner of 

Forfeit and Delinquent Lands in 1994 is petitioners’ only source of title supporting their claim to 

the oil and gas at issue in this case. The circuit court specifically found 

[t]hat the duplicative ‘Leased’ assessments, purchased by [p]etitioners do not, and 

have never, represented the ownership of any interest in property, minerals or oil 

and gas. Because the duplicative ‘Leased’ assessments did not represent any 

interest in oil and gas or other minerals, and because Mitchell, paid the tax in full 

on the actual 376 1⁄2 [acre] mineral assessments, the sale by [the Deputy 

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Commissioner of Forfeit and Delinquent Lands] to [p]etitioners did not convey 

any ownership interest to [p]etitioners and did not divest William Mitchell, Jr. 

from his rightful ownership interest in the oil and gas. 

As a result, the circuit court concluded that the assessor’s attempt to assess Rapp, Mitchell, and 

Sigmond both for the interest they owned in the 376 1⁄2 acres of oil and gas and again for the 

royalties therefrom was a duplicative assessment of the same property, so it was void. It stated 

that there was no dispute that all taxes had been paid on the two Mitchell assessments as to the 

376 1⁄2 acres of oil and gas for all periods through 2010 when they were sold to respondent. The 

circuit court also concluded that neither Mitchell nor respondent had any responsibility to correct 

any error made by the sheriff or the Deputy Director Commissioner of Forfeited and Delinquent 

Assessments to petitioners in selling the duplicate assessments. It specifically found that West 

Virginia Code § 11-3-27 was not applicable to bar respondent’s rights to its oil and gas because 

its stated purpose is to correct simple clerical errors or mistakes rather than to challenge a 

duplicate tax assessment. 

The circuit court further held that West Virginia Code § 55-2-1 was inapplicable to bar 

respondent’s rights to its oil and gas because its predecessors in title, Sigmond and Mitchell, 

always paid tax on their assessments as to the 376 1⁄2 acres of oil and gas until the sale of those 

interests to respondent. It went on to find that Mr. Mitchell had no reason to seek to set aside the 

tax deed because he correctly believed that he had properly paid his taxes on the oil and gas 

interests that he inherited from his mother and aunt. Finally, it found that petitioners had no 

claim to the oil and gas interests at issue by way of adverse possession because they had not 

demonstrated actual possession of the property. Thus, the circuit court ordered that the 1994 tax 

deed be set aside and declared void; that the oil and gas interests at issue are the sole property of 

respondent; and that all funds paid to the Clerk of Harrison County that were held in escrow be 

paid to respondent.1 

Petitioners filed a motion to alter or amend that April 21, 2015, order, and the circuit 

court heard argument on that motion on August 25, 2015. The circuit court found that the motion 

raised no issues of fact or law that were not fully and completely addressed and ruled upon in the 

prior order. Therefore, by order entered on January 29, 2016, the circuit court denied that motion. 

Petitioners appeal from those orders. 

“In reviewing an order denying a motion under Rule 60(b), W.Va.R.C.P., the function of 

the appellate court is limited to deciding whether the trial court abused its discretion in ruling 

that sufficient grounds for disturbing the finality of the judgment were not shown in a timely 

manner.” Syl. Pt. 4, Toler v. Shelton. 157 W.Va. 778, 204 S.E. 85 (1974). However, “‘[t]he 

standard of review applicable to an appeal from a motion to alter or amend a judgment, made 

pursuant to W.Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying 

judgment upon which the motion is based and from which the appeal to this Court is filed.’ Syl. 

Pt. 1, Wickland v. American Travellers Life Ins., 204 W.Va. 430, 513 S.E.2d 657 (1998).” Syl. 

1 Without citing to the record, petitioners state that respondent has received all royalties it 

purchased from Sigmond but that the royalties from Mitchell and Rapp have been escrowed 

since the lawsuit was filed. 

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Pt. 2, W.Va. Dep’t of Transp., Div. of Highways v. Dodson Mobile Homes Sales and Services, 

Inc., 218 W.Va. 121, 624 S.E.2d 468 (2005). This Court has indicated that “[a] circuit court’s 

entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Davis v. Foley, 193 W.Va. 595, 457 

S.E.2d 532 (1995) (citing Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)). 

Due to the overlap between the issues, we address petitioners’ first and second 

assignments of error together, which are as follows: 1) the circuit court erred when it voided the 

royalty based tax, and 2) the circuit court erred when it upheld the acreage tax or tax on oil and 

gas in place. Mitchell, Sigmond, and Rapp were assessed with seven entries for oil and gas in 

Harrison County in 1988. While Sigmond paid all of her assessed real property taxes from 1998 

until 2010, when she sold her interest to respondent, petitioners assert that Mitchell and Rapp 

paid only the taxes on the oil and gas in place, ignoring the royalty tax assessments. Petitioners 

point to a 1988 letter from the State Tax Department they contend directed assessors to assess 

royalty-based taxes, as there was no tax on the oil and gas in place unless there was no 

production. They further assert that the circuit court’s April 21, 2015, order voids the 

presumption that the assessor properly assessed the property. They fault respondent’s 

predecessor in interest for failing to appear before the Harrison County Commission, sitting as 

the Board of Equalization and Review, to contest the double assessment. Petitioners claim that 

the royalty-based tax is mandated by law, while the acreage tax is duplicative and should be 

eliminated. Because petitioners have consistently paid the royalty-based tax, they claim that their 

title to the mineral rights at issue is superior to that of respondent. 

In the 1988 letter from Robert A. Hoffman, Director of the Property Tax Division of the 

State Tax Department of West Virginia, he informed the Assessor of Wetzel County that if a 

sheriff conducted a tax sale where there were duplicate assessments and one of the duplicate 

assessments was delinquent, “such sale would in all likelihood be considered invalid as the real 

property entry may be improper.” That letter does not place any obligation on a taxpayer to 

contest the duplicate assessment. Petitioner’s expert testified that since the “Leased” assessment 

did not arise from a deed, will, or court order, no sale of that assessment should occur, as it 

would violate West Virginia Code § 11-4-9. This Court previously held that “[a] tax sale under a 

void assessment . . . and a deed made pursuant to such sale are void.” Syl. Pt. 4, in part, Bailey v. 

Baker, 137 W.Va. 85, 68 S.E.2d 74 (1951); see also Syl. Pt. 4, Blair v. Freeburn Coal Corp., 163 

W.Va. 23, 253 S.E.2d 547 (1979) (“A deed made pursuant to a tax sale under a void assessment 

is void.”). 

In relevant part, West Virginia Code § 11-4-9 provides that 

[i]n any tax sale by a sheriff, school commissioner or commissioner of forfeited 

lands, only the tract, lot, estate, interest or undivided interest proceeded against in 

that particular instance shall pass to the purchaser, so far as the State is concerned, 

so that any other estate, interest or undivided interest in the same tract not 

embraced in such sale shall not be affected by such sale, nor shall the title, or 

rights of the owners or claimants of such other estate, interest, or undivided 

interest in land be affected thereby. 

There is no dispute that Mitchell consistently paid the original tax he had been paying for years. 

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That is also the interest that he sold to respondent. Therefore, his interest could not be affected 

by the duplicate assessment pursuant to West Virginia Code § 11-4-9. While this statute does not 

directly address the types of assessments at issue in the present matter, it is clear that Mitchell 

never allowed the original taxes to become delinquent, so his interest was protected and the 

Deputy Commissioner of Forfeit and Delinquent Lands for Harrison County did not have the 

authority to sell Mitchell’s interest. 

Petitioners next argue that the circuit court erred when it allowed recovery of real estate 

after ten years. They contend that West Virginia Code § 55-2-1 places a ten-year statute of 

limitations on the recovery of real property, so Mitchell’s failure to attempt to set aside the deed 

between 1995 and 2010 left respondent without a valid claim for recovery. Petitioners are correct 

that West Virginia Code § 55-2-1 provides that “[n]o person shall make an entry on, or bring an 

action to recover, any land, but within ten years next after the time at which the right to make 

such entry or to bring such action shall have first accrued to himself or to some person through 

whom he claims.” 

The circuit court found that the ten-year statute of limitations was inapplicable because 

Sigmond and Mitchell always paid taxes on their assessments to the 376 1⁄2 acres of oil and gas 

until the sale of those interests to respondent. It went on to find that Mitchell had no reason to 

seek to set aside the tax deed because he correctly believed he had properly paid his taxes on the 

oil and gas interests that he inherited from his mother and his aunt. The application of the tenyear statute of limitations under West Virginia Code § 55-2-1 requires the demonstration of 

actual possession of the property thereunder, which petitioners have failed to demonstrate. 

Further, as set forth above, petitioners never had a legal right to the mineral rights at issue 

because they purchased the same pursuant to a void assessment. This Court has held that “[t]o 

work . . . ouster, it is not enough to set up a mere claim by obtaining a deed or patent or 

otherwise. It requires an adverse holding, actual occupation of the land, and such as is calculated 

to give notice.” Camden v. West Branch Lumber Co., 59 W.Va. 148, 160, 53 S.E. 409, 414 

(1906). For these reasons, we find that the circuit court did not err in concluding that West 

Virginia Code § 55-2-1 was inapplicable to this matter. 

Finally, petitioners argue that the circuit court erred when it permitted respondent the 

benefits of a bona fide purchaser when it was not a bona fide purchaser for value of the Mitchell 

and Rapp oil and gas. Petitioners state that respondent purchased Mitchell’s interest for less than 

$100, while in January of 2016 there was almost $800,000 in escrow related to that account due 

to Marcellus production from the lease at issue. They also state that there was over $4,000 in the 

shallow well escrow account. Therefore, respondent did not purchase Mitchell’s interest for its 

fair market value, and it is not a bona fide purchaser. While petitioners make assertions as to the 

amounts contained in the escrow accounts, they do not point to the record to support these 

contentions. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides, in 

relevant part, that the argument section of a brief before this Court “must contain appropriate and 

specific citations to the record on appeal, including citations that pinpoint when and how the 

issues in the assignments of error were presented to the lower tribunal. The Court may disregard 

errors that are not adequately supported by specific references to the record on appeal.” Because 

petitioners failed to point this Court to the necessary documents in the record to allow it to make 

a determination on the merits, we decline to address the merits of this assignment of error. 

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For the foregoing reasons, we affirm. 

ISSUED: November 18, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Affirmed. 

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