Judge denies Bayer's motions for new trial, amended judgment

By Chris Dickerson | May 3, 2007


CHARLESTON – A Kanawha Circuit Judge has denied Bayer CropScience's motions for a new trial and to alter or amend judgment in a 2004 tax case.

Judge Jennifer Bailey Walker denied the motions in a May 1 order. Bayer had asked the Kanawha County Commission, as the Board of Equalization and Review, to reduce its personal property tax appraisals done by the state Tax Department. Bayer has asked for the changes several times in recent years.

In 2004, the county commission ruled 2-1 that Bayer had paid too much in taxes. But County Commission President Kent Carper, the dissenting vote, saw that "as a kick in the teeth to taxpayers," so he -- along with Assessor Phyllis Gatson and Prosecuting Attorney Mike Clifford –- successfully appealed it.

Bayer had asked Walker for a new trial on the matter on Aug. 24, 2006, and for an altered judgment on Jan. 17, 2007.

With the final judgment having been entered on Aug. 10, 2006, the January motion to alter judgment was well past the 10-day time limit that is "mandatory and jurisdictional," according to the state Supreme Court.

On the motion for a new trial, Bayer argued that it was needed because of newly discovered evidence. The order says Bayer located files relating to its Kanawha County facilities in its Marshall County files, all located in Bayer's Pittsburgh Tax Department.

Bayer says it found the new evidence when responding to discovery in a Marshall County appeal.

However, citing a 1983 state ruling, Walker wrote that "a motion for a new trial based on after-discovered evidence is seldom granted and the circumstances must be unusual or special to warrant a grant."

Kanawha County Commission President Kent Carper said Thursday he is pleased with the order.

"They've sued us so many times," he said of Bayer. "This case is about $500,000, but it means much more.

"If you allow them to do this, then anyone can. Someone could come back to the county four or five years down the road and say, 'I paid too much in taxes. I want my money back.'

"Assuming there had been an error made on their property taxes, there is a time limit to appeal. If you don't take advantage, the government spends the money."

Attorney Steven Broadwater of the Rose Law Firm which represents Bayer, said he is troubled that the court didn't take into account what the county commission originally decided.

"The part of this I don't agree with is that the Legislature left it up to County Commission to make that decision," he said. "The court simply substituted their own opinion as to whether Bayer was entitled to relief.

The County Commission heard evidence and had opportunity to ask questions. Bayer probably paid about $10 million in property taxes in Kanawha County over that three-year period. What they discovered later was that they had overpaid by almost a half a million. They (the county commission) were convinced that Bayer was entitled to the relief."

Carper said this case is so important because it doesn't just affect Kanawha County, but the entire state. He said he expects the case to end up before the state Supreme Court.

"Who's going to protect the average small taxpayer who will end up paying more in taxes if companies with warehouses full of attorneys and lobbyists get out of paying their share?" Carper asked.

Ned Rose of the Rose Law Firm has said before that county commissions across the state are inherently biased and should not hear tax appeals because they act as each county's funding and budgetary body.

Carper maintains commissioners would hear tax appeals regardless of the disputed amount and make a fair judgment based on the facts.

Last year, Kanawha Circuit Judge Duke Bloom overturned a 2-1 commission vote that favored one of Bayer's previous tax appeals concerning valuation. Broadwater said the Supreme Court recently voted 5-0 to hear that appeal which addresses the issue of whether the County Commission can be impartial.

Broadwater said Thursday he hasn't talked to Bayer about appealing the order to the state Supreme Court.

Kanawha Circuit Court case number: 04-AA-26

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