August 21, 2018
McNeer, Highland, McMunn and Varner, L.C. is pleased to announce that four of its attorneys have been recognized by Best Lawyers® in West Virginia for 2019.
Jim Riley was recognized as “Lawyer of the Year” in Products Liability. Jeff Van Volkenburg was recognized as “Lawyer of the Year” for Litigation – Insurance. Debra T. Varner was also recognized by Best Lawyers® for Litigation – Insurance. Debra was previously recognized as “Lawyer of the Year” for Litigation – Insurance in 2017. James A. Varner, Sr. was recognized in three separate practice areas (Insurance, Legal Malpractice – Defendants and Personal Injury Litigation – Defendants). Jim was previously recognized as “Lawyer of the Year” for Litigation – Insurance in 2016 and 2018. Collectively, the firm’s attorneys have been recognized as “Lawyer of the Year” for the past four (4) years for Litigation — Insurance. Best Lawyers® exclusively utilizes peer review to determine attorneys that are recognized. Attorneys recognized as a “Lawyer of the Year” received the highest overall feedback for a specific practice area in a geographic region. Only one attorney per year is recognized as the “Lawyer of the Year” for each specialty and location.
Attorneys at McNeer, Highland, McMunn and Varner, L.C. have provided outstanding, cost-effective legal services to the firm’s clients throughout West Virginia for over one hundred years. The firm provides responsive, client-driven legal services in a range of practice areas including the defense of personal injury claims, catastrophic loss, insurance coverage and bad faith as well as product liability defense. If you have a legal issue, please contact us.
August 27, 2018
Changes in West Virginia Law Make Obtaining Tax Deeds Longer, Harder, and More Expensive
Recent judicial opinions from the Northern District of West Virginia and Southern District of West Virginia spawned changes to West Virginia law for obtaining title to real property by purchasing a tax lien for unpaid real estate taxes.
West Virginia law provides a mechanism for the sale of property upon which taxes have not been paid. See generally W. Va. Code §§ 11A-3-1 to 11A-3-74. Succinctly stated, the county sheriff prepares and publishes a list of delinquent tax owners. See W. Va. Code § 11A-3-2. The sheriff is also required to send a notice of delinquency and the date of sale by certified mail to a statutory list of interested parties, including the delinquent tax owner. See id. If the property taxes are not paid, the county sheriff is empowered to sell the property in accordance with statutory requirements. See id. at § 11A-3-5. The highest bidder is issued a certificate of sale by the county sheriff. See id. at § 11A-3-14. The purchaser is then able to secure a deed for the property if the purchaser complies with applicable West Virginia Code provisions. See id. at § 11A-3-27.
Before a purchaser is able to secure a tax deed for the property, the purchaser must comply with the notice requirements of West Virginia Code section 11A-3-19. This section of the West Virginia Code provides that in order to secure a tax deed for a piece of real estate purchased at a tax sale, the purchaser must do certain statutory acts including “[p]repare a list of those to be served with notice to redeem and request the clerk to prepare and serve the notice.” Id. at § 11A-3-19.
A number of West Virginia Code provisions detailing tax deed procedures changed during the 2018 legislative session due to recent decisions in the Northern and Southern District of West Virginia.
In Kelber, LLC v. WVT, LLC, Judge Keeley held that a purchaser was not reasonably diligent in fulfilling its statutory and due process duty to provide a delinquent owner with adequate notice of its right to redeem property. 213 F.Supp.3d 789 (N.D. W. Va. 2016). Judge Keeley summarized the duty of the tax sale purchaser writing, “[t]he notifying party must utilize methods or means that anyone honestly seeking to actually effectuate the notice would reasonably employ.” Id. at 794 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) (“[W]hen notice is a person’s due … [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”). Following a trend requiring more due process protections for delinquent property owners, Judge Keeley held that when notices sent by certified mail were returned as undeliverable, additional steps to provide notice such as calling the bank that formerly held the mortgage, contacted the Maryland Secretary of State for contact information for the Maryland business, and/or go to the property itself and knock on the door. Id. at 804-05.
A similar case was examined by Judge Berger of the Southern District of West Virginia in O’Neal v. Wisen. 2017 WL 3274437 (August 1, 2017). Ruling that Deputy Commissioner of Delinquent and Nonentered Lands was not entitled to qualified immunity, Judge Berger wrote, “the purchasers bear the burden of the additional efforts required to notify property owners of their right to redeem, but granting a deed with the knowledge that notice failed and no additional reasonable efforts were attempted is itself a due process violation.” O’Neal v. Wisen, No. 5:16-CV-08597, 2017 WL 3274437, at *6 (S.D.W. Va. Aug. 1, 2017), aff’d sub nom. O’Neal v. Rollyson, 729 F. App’x 254 (4th Cir. 2018), and motion for relief from judgment denied, No. 5:16-CV-08597, 2018 WL 3341786 (S.D.W. Va. July 6, 2018). Critical to the Southern District’s analysis was that “certified mail envelopes returned ‘not deliverable as addressed’ or ‘unclaimed’ constituted insufficient notice to the [property owners] of the right to redeem the property from the tax sale.” Id. at *4 (quoting Mason v. Smith, 760 S.E.2d 487, 494 (W. Va. 2014)). Because no “additional measures” were taken by the Deputy Commissioner or the purchaser after the initial mailings were returned and there were reasonably available other measures such as posting on the door of the residence or directing a notice to the “occupant”, Judge Berger entered partial summary judgment for the delinquent tax owners ruling that the defendants deprived the Plaintiffs of their property without due process. Id. at *6.
The repercussions of these rulings were felt in 2018. Applicants received mailings seeking additional funds for personal service when mailings were returned undeliverable. Moreover, a number of changes were made to West Virginia Code including a revision of the timeframes to submit tax deeds applications. Formerly, tax deed applications were sent to the State Auditor’s office in Charleston between October 31 and December 31 of each year. Under the May 2018 revision to West Virginia Code section 11A-3-19, applications must now be sent to Charleston between August 31 and October 31 of each year. Pursuant to West Virginia Code section 11A-3-19, if the tax certificate purchaser fails to meet this deadline, “he or she shall lose all the benefits of his or her purchaser.”
Read together, the O’Neal and Kelber decisions succinctly reveal a number of lessons learned and trend towards more and more effort to provide constitutionally sufficient notice to the delinquent property owner. Applicants should not rest on their efforts but should verify service by the State Auditor’s office. At a minimum, efforts should be made to visit the property, knock on the door, and provide actual notice to the owner. Although the case law nationally and in West Virginia still provides that actual notice is not required, it’s very close!!! If you have any questions about these changes, please contact Buddy Turner at firstname.lastname@example.org or 304-329-0773.
September 7, 2018
Divorce rates are at their highest point in years. Despite the frequency and large number of people who have endured the divorce process, there remain numerous misconceptions. At McNeer Highland McMunn and Varner, LC, we know the law and offer high quality, professional representation at reasonable rates. Going through a divorce can be a highly emotional experience. Handling a divorce improperly can result in long term problems, both emotional and financial.
The area of property and debt distribution in a divorce setting is the area I wish to cover here. If you are considering divorce or are involved in one now, here are a few “myths” that you need to dispel to understand where you stand. First, items of property titled only in one spouse’s name does not mean it is not marital property and subject to distribution. Let’s take the example of a house. If the house is titled in only one name, it is often believed that the title or deed makes it separate property. While this may be true in certain instances, most of the time there is a marital component which is subject to division. For instance, if the husband owned the house before the marriage, but payments on the mortgage or improvements were made to the property, a portion of the property’s value is now marital and subject to division. The same goes for a vehicle. Things such as regular maintenance, replacement of an old water heater and things that do not increase the value of the property or the equity in it do not create a marital component.
The same can be said for debts. Most all debt incurred during the marriage will be considered marital debt by the court and divided, regardless of whose name is on the debt. For instance, if the wife has a credit card in her name only and charged items during the marriage, the balance owed at the time of separation is considered marital debt in most instances and the husband will be responsible for one-half of that debt. Likewise, medical bills not covered by insurance that are incurred during the marriage are joint/marital debts regardless of which spouse received the medical treatment. Many believe that a loan in one spouse’s name is that person’s debt. Not true. If the loan was taken out during the marriage, its balance at the time of separate is marital debt and both parties to the divorce are equally responsible for it.
Who pays what bills and who gets what property is decided by the Judge if the parties cannot come to an agreement. The Court is charged with the duty of “equitable distribution” or dividing the property and debt as equally as possible between the parties if there is no agreement. Knowing how to define marital vs. separate property is very important to the process. Knowing how to calculate the value of marital property, its equity and marital component, as well as how to determine marital and non-marital debts are the keys to the “equitable” distribution of assets and debts.
If you have questions or need quality representation in your divorce, call me to schedule a consultation. I have over thirty (30) years of experience handling hundreds of divorces, both big and small. I can be reached at 304-329-0773 or email@example.com. I am sure I can assist you.
Mark E. Gaydos
October 1 2018
While the 2017 Tax Cuts and Job Act was beneficial to many, the tax reform bill contains a short provision that could significantly affect how sexual harassment claims are settled for both Plaintiffs and Defendants. Section 13307 of the Act provides:
PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—
“(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
“(2) attorney’s fees related to such a settlement or payment.”
The new tax provision eliminates a tax deduction for sexual harassment related settlements if the settlement or payment is subject to a nondisclosure or confidentiality agreement. In short, if the settlement is confidential, then the amount of the payment and any attorney fees are not tax deductible. Sexual harassment settlements and related attorney fees remain tax deductible if they are not subject to a nondisclosure agreement.
The reason behind this change appears to be in response to the significant number of abuse claims that have been recently disclosed. This has raised concerns about companies hiding behind non-disclosure agreements to avoid public disclosure of sexual harassment in the workplace. It was thought this provision would make sexual harassment in the work place more transparent.
There are a number of unanswered questions regarding the application of the Act. No guidance is given regarding what is meant by “any settlement or payment related to a sexual harassment or sexual abuse.” It is unclear whether related claims such as retaliation or violation of State Human Rights acts are considered related. One way to get around the Act may be to dismiss or settle the harassment claim for a nominal sum and attribute the rest to another non-sexual harassment claim. It is expected that this issue will be clarified in the future.
Another outstanding issue is whether the denial of deductibility applies only to companies making settlement payments and their own attorney fees, or if it applies to the attorney fees incurred by the victim as well. The Acts provision would appear to amend the IRS Code which allows deductions for ordinary and necessary trade or business expenses incurred. Depending on how interpreted it could apply to the attorney fees paid by the Plaintiff or paid on the Plaintiff’s behalf. This could result in the Plaintiff paying taxes on money that they never received. Some in congress are attempting to clarify this provisions so that it only applies to Defendants. To date the revision has not passed.
The provisions of this act went into effect on December 22, 2017. Given the uncertainty of this provision it is important to get legal advice whether you are a company defending a sexual harassment or abuse lawsuit or are the victim of such harassment. The decisions you make could be very costly. If you have any questions or desire to discuss the issues raised herein please do not hesitate to contact me. My name is Steven R. Bratke and I have been involved in litigation for over 29 years. I can be reached at firstname.lastname@example.org or 1-304-422-7193. This article is written for informational purposes only and not intended to be legal advice or create any form of representation or relationship.
November 5, 2018
HONOR AND INTEGRITY MUST BE RESTORED
The past several weeks and months have been historic for the West Virginia legal profession. Unfortunately for the citizens of West Virginia and for the lawyers in the State, it has not a time to be proud. Rather than beginning its already delayed Fall 2018 Term of Court, oral arguments that were scheduled before the West Virginia Supreme Court of Appeals for October 2 and 3 were continued, further delaying the appellate process for litigants across the State. Announcing the continuation of the oral arguments, the Court released a statement stating, “oral arguments scheduled on Tuesday, October 2, 2018 and Wednesday, October 3, 2018, are continued generally. Many Court employees, including necessary security staff, have been subpoenaed to appear in both a federal court proceeding and the state Senate impeachment proceedings…”
On Monday, October 1, 2018, Evan Jenkins was sworn in as a Justice of the West Virginia Supreme Court of Appeals. After a legal challenge that was resolved by specially appointed Justices just last week, it was determined that Jenkins was qualified to sit on the Court. Also on Monday, October 1, 2018, the first of four impeachment trials started before the West Virginia Senate. Justice Beth Walker was the first trial scheduled, resulting in her censure. In a challenge to the impeachment proceedings, the West Virginia Supreme Court of Appeals found that the procedure utilized by the West Virginia legislature was flawed. It is currently unclear whether additional impeachment proceedings will continue forward.
On Tuesday, October 2, 2018, the federal criminal trial of Former Chief Justice Allan Loughry began. He was ultimately convicted of a significant number of the charges against him.
Without going into details about the charges against the various justices, whether in the impeachment trials or the criminal trial, the reality is clear…. The reputation of the legal system in West Virginia has been seriously damaged. The impeachments have made national news. Lawyers from across the country have followed the developments and inquired about the details. The time is now for all of this to end. The time is now to begin the repair of the legal system and its reputation. It is going to take serious effort by everyone involved to restore the honor and integrity that have existed in the profession for years. There are great people and great lawyers throughout the State of West Virginia. It is time for everyone in our profession to step up and show the nation and the state what it means to be a lawyer in West Virginia.
November 13 2018
Families are formed in many ways, including biology, marriage, and romantic relationships, just to name a few. Sometimes, though a family may have formed organically, a family requires legal recognition of the bond between them, which can include an adoption proceeding, where a court orders that an adult becomes a child’s parent legally. These proceedings permit individuals who are not biological parents of a child to step into the shoes of the child’s biological parent and receive the rights, duties, and responsibilities that the biological parent had by way of the genetic tie with the child.
In West Virginia, there are two methods that can be used to adopt a child — a contested/non-consented adoption and a consented adoption. A contested/non-consented adoption typically occurs in the context of a stepparent or other relative seeking to adopt the minor child or children, and an adoption can be contested/non-consented either because the parent refuses to execute a consent to adoption or because the parent cannot be located to execute the consent for adoption. In this instance, the person or persons seeking to adopt the child or children must prove to the court that the parent contesting/not consenting to the adoption has abandoned the child, meaning, generally, that the parent has failed to emotionally and financially support the child when physically and financially able and when the parent has not been prevented from doing so.
A consented adoption is when the parent of the child, or the DHHR if the child’s parents’ parental rights have been terminated in a child abuse and neglect proceeding, consents to transferring the legal rights, duties, and responsibilities for the child to another person. To be legally binding, there are timing requirements for the execution of the consent, as well as requirements for the content of the consent and certain information that must be provided to the parent before execution. However, if the requirements for the consent have been met, then a court can use the consent to sever the parent’s rights, duties, and responsibilities for the child without taking testimony from the parent or providing notice of the hearing or decision to the parent.
Importantly, whether the adoption is contested/non-consented or consented, there are other requirements that must be met for a court to order the adoption — the child must reside with the adoptive parent for a continuous period of six months before the hearing, there must be a forty-five day period between the filing of the petition for adoption and the final hearing, the prospective adoptive parent must be fit to adopt the child, and the adoption must ultimately serve the child’s best interests — the polar star for the court. If all of these requirements are met and the court grants the adoption, the adoptive parent becomes the child’s parent for all intents and purposes — government documentation, including the child’s birth certificate, is changed to reflect the adoption; the adoptive parent is vested with all of the duties, responsibilities, and rights that the biological parent would have had, which also divests the biological parent of those same rights; and, the child’s name can be changed, meaning that the child can have the adoptive parent’s last name or even an entirely new name, if so desired.
When considering whether to adopt a child, it is important to retain counsel for the proceeding because of the constitutional rights involved in the case. Mistakes in notice, consent, and order provisions can have very costly effects and create hassles for months, if not years, down the road.
If you have any questions regarding an adoption or desire to discuss an adoption proceeding, please contact Allison S. McClure at email@example.com or (304) 626-1106. Allison has the experience to answer your questions and guide you through the process, as she focuses much of her practice on family law, including stepparent adoptions, relative adoptions, and DHHR adoptions arising out of child abuse and neglect cases, and won an appeal before the West Virginia Supreme Court of Appeals in a contested adoption proceeding.
This article is written for information purposes only and not intended to constitute legal advice or create any form or legal representation or relationship.