Opposition — Russell Creek Land Co. v. Charjuan, Inc.

Office -Supreme Court, U.S.

FILLED

FEB 17 1083

ALEXAND’R L. ST VAS,

*K |

No. 82-853

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

RUSSELL CREEK LAND COMPANY

and BBF, INC.,

Petitioners,

Vs.

CHARJUAN, INC.,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE CIRCUIT

COURT OF CABELL COUNTY, WEST VIRGINIA

JAMES ALLAN COLBURN

Baer & Colburn, L.C.

731 Fifth Avenue

Huntington, West Virginia

(305) 523-8451

TABLE OF CONTENTS

STATEMENT OF THE CASE... .

STATEMENT OF THE FACTS .. .

ARGUMENT:

A.

Procedural Due Process

Substantive Due Process

CONCLUSION ea oe 2 oe

14

16

TABLE OF AUTHORITIES

CASES:

Application of the People of the

State of New York

F.Supp. 1 (1956) “a 2

Billingsley v. Wallace

1974, 554 So.2d 362,

292 Ala. 538, 95 S.Ct. 834 ...

Christianson v. King County

239 U.S. 356 (1915) ‘eu *« & 8

Hancock v. Muskogee

250 U.S. 454 {1519) oe ee ©

Kaufman v. Gross & Co.

1979, 591 P.2d 1229,

23 C.3d 750, 153 Cal. Rptr. 577

Leigh v. Green

Neb. 1904, 24 S.Ct. 390,

193 U.S. 92, 48 L.Ed. 623 eee

Mullane v. Central Hanover Bank and

Trust Compan

399 U.S. 506 (1950) > eS 6 6s

Outlook Irr. Dist. v. Fels

1934, 28 P.2d 996, 176 Wash. 211

People's National Bank v. Marye

‘107 F. 570 (4th Cir.),

191 U.S. 272 (1901) i a a a

Spitcaufsky v. Hatten

1944, 1e2 S.W.2d 86, 353 Mo. 94.

ii

Page

1l

1l

10

10

State v. Standard Oil company

N.J. , A. ,

aff'd 341 U.S. 428 (1950) .

The Mar

(U.S.) 9 Cranch 126,

144 3 L.Ed. 678, 684 ...

CONSTITUTION AND STATUTES:

U. S. Const. Amend. XIV ...

W. Va. Code 1l1A-3-l .... =.

W. Va. Code 11A-3-6 .....

W. Va. Code llA-4-l1 .... .

-1l

NO. 82-853

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

RUSSELL CREEK LAND COMPANY

AND BBF, INC.,

Petitioners,

Vs.

CHARJUAN, INC.,

Respondent.

BRIEF IN RESPONSE TO PETITION

FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF CABELL COUNTY,

WEST VIRGINIA

DECISION BELOW

The lengthy finding of fact,

conclusions of law and order of the Circuit

Court of Cabell County is set _ forth

accurately in the Petition.

ale

QUESTION PRESENTED

There are no questions for review,

requiring granting of a Writ of Certiorari

to the Circuit Court of Cabell County, West

Virginia.

STATEMENT OF THE CASE

The Circuit Court of Cabell County,

West Virginia, decided this matter by Order

dated November 6, 1981, after a hearing

held on November 20, 1980. This decision

was appealed to the West Virginia Supreme

Court of Appeals twice and denied both

times. The petitioners were the landowner

and tenant of a parcel of improved real

estate located in Cabell County, West

Virginia. The petitioners assert a denial

of due process of law as guaranteed by the

Fourteenth Amendment of the United States

Constitution by alleging that certain

provisions of the West Virginia Code are

unconstitutional. This Court's

jurisdiction is sought under 28 U.S.C.

Subsection 1257(3) and Rule 17.l(c) of the

Rules of the United States Supreme Court.

STATEMENT OF THE FACTS

Paramount to an understanding of the

issues in this case is the time sequence of

various events, the duties of ownership of

real property, and the failure to execute

those duties by the petitioners herein.

Russell Creek was the fee simple

owner of the subject real estate which was

purchased in August of 1963. At that time,

Russell Creek leased the subject property

to BBHE, Inc., (a predecessor by merger of

BBF, Inc.). The obligation to pay the real

estate taxes assessed by the Cabell County

Assessor was made a provision of this Lease

and was the responsibility of BBHE and

subsequently BBF under that Lease. The

taxes were paid on the subject real estate

-3-

from 1963 to 1974, inclusive. The taxes

were not paid or tendered for 1975, 1976,

1977, 1978 and 1979. No effort was made

to pay these taxes or to contact the

billing or tax collecting authority (the

Cabell County Sheriff) by Russell Creek or

BBF during this time, notwithstanding the

written tax statement mailed to BBF in

September, 1975.

BBF, Inc., a national fast food

service chain operating out of Columbus,

Ohio, in fact, paid the 1973 and 1974 taxes

on September 14, 1974, and the Cabell

County Sheriff mailed a check for a tax

refund to BBF as a result of an

overpayment. The 1973 taxes were delinquent

when paid by BBF. Between July 15 and

August 1, 1975, the Cabell County Sheriff

mailed notice of the taxes due to BBHE,

Inc., the predecessor corporation to BBF,

Inc., receipt of the mailed notice was not

denied by BBF. The subject property

o§e

became delinquent for taxes on May 1, 1976.

On May 15, 1976, the first notice of

publication of the delinquent taxes was

prepared by the Cabell County Sheriff and

was published as a class 1-0 legal

advertisement. On September 22, 1976, a

second list of delinquent real estate taxes

for 1975 calendar tax year was prepared and

published likewise in the newspaper. On

October 18, 1976, a tax sale of various

lands delinquent for taxes in 1975 was held

by the Cabell County Sheriff. This

property was not purchased by anyone at the

sale and pursuant to West Virginia Code

Section 1ll(a)-3-6, the Cabell County

Sheriff on behalf of the State of West

Virginia bid in the property for the taxes

due, $1,345.78. From October 18, 1976,

until September 30, 1978, when the property

was certified by the West Virginia State

Auditor to be sold for the benefit of the

School Fund, the property was absolutely

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redeemable by Kussell Creek or BBF upon the

payment of all past due taxes, interest and

charges due on the said real estate. After

the property was certified to be sold for

the benefit of the school fund under West

Virginia Code Section l11A-4-l, et. seq.

until April 3, 1979, the property was

redeemable as a matter of grace by either

BBF or Russell Creek. Taxes for

the year 1975 were computed on a fiscal

year basis between July 1, 1974 to June 30,

1975. They were not payable until after

July 1, 1975. From July l, 1975, until

April 3, 1979, no offer, contact, payment,

or other communication was made by either

Russell Creek or BBF to pay the real estate

taxes on the subject property.

On these facts BBF, Inc., and

Russell Creek now complain that the West

Virginia statutory scheme denies them due

process of law as guaranteed them by the

United States Constitution and Amendment

-6-

XIV thereto. The petitioners assert that

the West Virginia statutes deny them notice

and an opportunity to be heard both as to

the time, date and place of the Sheriff's

sale and a failure to provide notice of the

absolute right of redemption after the

property passed to the State of West

Virginia under West Virginia Code Section

11A-3-6. This is plainly a misapprehension

of the due process clause of Amendment IV

of the United States Constitution and the

West Virginia statutes.

ARGUMENT

A. Procedural Due Process:

The requirements of notice and an

opportunity to be heard as defined by

Mullane v. Central Hanover Bank and Trust

Company, 399 U.S. 306 (1950) refer to a

judicial proceeding at which a right or

property interest will be adjudicated. In

that proceeding, either in rem or in

personam Mullane holds that publication is

not sufficient notification if the person

or persons to be affected are known and his

address can be obtained so that he receives

personal service. In the case at bar,

there was no judicial proceeding and none

was required.

The amount of taxes which the

petitioners owed on the subject’ real

property in Cabell County was a matter of

mathematical calculation which requires no

hearing. See Hancock v. Muskogee, 250 U.S.

454 (1919); People's National Bank v.

Marye, 107 F. 570 (4th Cir.) modified on

other grounds 191 U.S. 272 (1901).

When the taxes became delinquent,

the Sheriff, pursuant to statute, published

both in the newspaper and in notices on the

courthouse door.

-8-

At any time during the years in

question, either petitioner could have

attempted to pay the taxes and have been

told of the forfeiture to the state and of

its right to redeem the property. But for

years, neither party even attempted to do

so, notwithstanding they actively engaged

in the fast food business at that address.

In the instant case, Russell Creek's

property became vested in the State of West

Virginia (11A-3-6), when the property is

advertised for sale for delinquent taxes

and there are no bidders thereon. The

subject property was not purchased by a

third party at the Cabeli County Sheriff's

tax sale.

This provision is similar to escheat

statutes. See Christianson v. King County,

239 U.S. 356 (1915); Application of the

People of the State of New York, 138 F.Supp

661 (1956); State v. Standard Oil Company,

5 N.J. 281, 74 A.2d 565, aff'd 341 U.S. 428

-9-

(1950). The duty is on the landowner to

pay his taxes. The landowner's or his

assignees failure to perform a statutorily

required act cannot give the landowner or

his assignee the right to shift the burden

to the State of West Virginia to keep him

notified as to when to pay his taxes.

In addition, respondent notes that

in this case, for the years prior to 1975,

the taxes were paid by BBHE, Inc., or BBF,

Inc. The address of BBHE, Inc., was known.

BBHE, Inc., did in fact receive written,

mailed notice of the taxes due for 1975

from the Sheriff of Cabell County, West

Virginia.

It has long been the law that the

State may sell land for taxes; and notice

by publication is not violative of due

process. Leigh v. Green, Neb. 1904, 24 S.

ct. 390, 193 U.S. 92, 48 L.Ed. 623;

Outlook Irr. Dist. v. Fels, 1934 28 P.2d

996, 176 Wash. 211; Spitcaufsky v. Hatten,

-10-

1944 182 S.W.2d 86, 353 Mo. 94; This

matter was recently denied certiorari by

this Court. Billingsley v. Wallace, 1974

297 So.2d. 362, 292 Ala. 538, certiorari

denied, 95 S.Ct. 834.

The contention that statutory

requirements are insufficient to give due

process after a reasonable period in which

to act cannot be sustained. Kaufman v.

Gross & Co., 1979, 591 P.2d 1229, 23 C.3d.

750, 153 Cal. Rptr. 577. In this case the

petitioners had over three (3) years in

which to cure default.

It is a long established principle

of law in the United States that when a

party owns property, it is the

responsibility of the owner to preserve and

protect it.

In the words of Chief Justice John

Marshall in The Mary (U.S.) 9 Cranch 126,

144, 3 L.Ed. 678, 684, “It is the part of

common prudence for all persons who have any

-li-

interest in [a thing], to guard that

interest by persons who are in a situation

to protect it." Cited in Mullane, supra,

316.

The petitioners knew that taxes were

owed on the property, knew approximately

when they were due and knew to whom they

were payable. The petitioners, jointly or

severally, were in a situation to protect

their interests in the subject property.

They failed to do so and now maintain that

the State is at fault for their failure to

pay taxes for the last 3% years they owned

and/or operated a fast food restaurant on

the subject property.

In the consideration of these

questions presented to this Court, another

question must be asked.

“What could have been done by BBF

or Russell Creek, even if there

had been hand delivered per-

sonal notification to the Presi-

dents of both BBF and Russell

Creek concerning both matters

raised in the questions presented?”

-)2-

The answer is obvious. They could

have paid the taxes. There was no

appearance that could have been made.

There was no legal determination to

challenge. There was no pleading to

respond to. There was nothing to do

except to pay the taxes. This is exactly

what could have been done without such hand

delivered personal notification to the

Presidents of both corporations. The

responsibility is not on the State of West

Virginia to see that both domestic and

foreign corporations properly manage their

businesses and pay their taxes. The

petitioners lost nothing as a result of any

“lack of notice and opportunity to be

heard." They simply failed to pay their

taxes to the Cabell County Sheriff as they

had done for the previous eleven (ll) years

and could have done for the more than three

and a half (3-1/2) years in question and

saved their property.

-13-

Under the particular facts in this

case, Russell Creek and BBF have waived and

are estopped from claiming injury herein.

Both Russell Creek and BBF were required by

the State of West Virginia to annually

report to the State of West Virginia what

properties they owned and to assign a value

for those properties for the purposes of

taxation by Cabell County, West Virginia.

These duties to report and their previous

eleven (11) years of a history of paying

the taxes and their failure to deny any

knowledge of their responsibility to pay

real estate taxes overwhelmingly shows that

the petitioners herein do not have

requisite standing to assert a

constitutional challenge to the West

Virginia statutes.

B. Substantive Due Process.

There is no substantive due process

question presented in either question

because of the State's overriding interest

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in requiring owners of real property to

timely pay their taxes. This state

interest is set forth in West Virginia Code

provision 11A-3-l. The only consideration

is whether or not there is a reasonable

period of time in which the property owner

can cure his default.

Under the West Virginia statutes,

the property owner has approximately two

and a half (2-1/2) years if the statutory

timetable is followed before the property

becomes irredeemable. This right would

exist for this period of time, even if the

property had been sold to a third party at

the Sheriff's sale. Under the facts in

this case, both Russell Creek and BBF had

the right to cure this default and pay the

taxes and/or redeem the property from the

State of West Virginia from July 1, 1975,

until September 30, 1978 or some three (3)

years and three (3) months.

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CONCLUSION

For the foregoing reasons, the

respondents respectfully submit that there

is no federal constitutional questions

involved and that any loss suffered by the

petitioners herein is a direct result of

their negligent operation of their

respective businesses. They voluntarily

became the owners of property in the State

of West Virginia; they voluntarily used

the property to make money in the State of

West Virginia; and they voluntarily failed

to make their annual tax payments to the

State of West Virginia after eleven (11)

years of so doing. For those reasons, it

is respectfully submitted that the

requested Writ of Certiorari should be

denied.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. 82-853

RUSSELL CREEK LAND COMPANY

AND BBF, INC.,

Pe tioners,

vs.

CHARJUAN, INC.,

Respondent

AFFIDAVIT OF FILING AND SERVICE

I, James Allan Colburn, counsel for

the above-named respondent, do hereby

certify that I did file the attached Brief

in Opposition to Petition for Writ of

Certiorari, by depositing same in the

United States Post Office with first class

postage prepaid and addressed to the Clerk

of the United States Supreme Court within

the time allowed for filing.

I do further certify that I did

serve copies of the attached Brief in

Opposition to Petition for Writ of

Certiorari, by depositing same in the

United States mails, first class postage

prepaid, addressed to each of the

attorneys at their addresses listed below,

on this the 7th day of March, 1983:

Counsel for BBF and Russell Creek Land

Company:

Bert M. Grimm, Jr.

Wood, Grimm & Delp

Penthouse Suites

The Frederick Building

Huntington, W. Va. 25701

Counsel for Smith-Eckard

Corporation:

Wesley F. Agee

P.O. Box 2688

Huntington, W. Va. 25726

West Virginia Attorney General:

The Hon. Chauncey H. Browning

Attorney General

State of West Virginia

Capitol Building

Charleston, W. Va. 25305

STATE OF WEST VIRGINIA,

COUNTY OF CABELL, TO-WIT:

I, Mindy Ann Napier, a Notary

Public in and for the County and State

aforesaid, do hereby certify that James

Allan Colburn, whose name is signed to the

foregoing writing, has this day

acknowledged the same before me in my

said County, on this the Th day of

March, 1983.

My commission expires April 18,

1990.