Wesley Cate v. Dale W. Steager

Summary

The West Virginia Supreme Court of Appeals affirmed the Circuit Court of Kanawha County’s order dismissing Wesley Cate’s petition for reassessment as untimely. The court held that the petition was filed outside the statutory sixty-day deadline under West Virginia Code § 11-10A-9(b), and that Cate had waived any personal-jurisdiction defense by failing to properly raise it at the outset. The decision was issued as a per curiam memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure.

Holdings

1. A petition for reassessment must be filed with the Office of Tax Appeals within sixty days after receipt of written notice of the assessment, and Cate's petition filed on September 2, 2015, after receiving the assessment on June 8, 2015, was untimely.
2. Filing a responsive pleading without also moving to dismiss for lack of personal jurisdiction waives the personal-jurisdiction defense under West Virginia Rule of Civil Procedure 12(h).
3. Review of a dismissal is limited to whether the pleadings were sufficient to withstand dismissal and must be based on the evidence contained in the administrative record.

Questions Presented

1. Whether the Office of Tax Appeals properly dismissed Cate's petition for reassessment as untimely under West Virginia Code § 11-10A-9(b).
2. Whether Cate preserved and could prevail on a personal-jurisdiction defense despite failing to timely file a motion challenging personal jurisdiction.

Disposition

affirmed