Ann Barclay Dewet, et al. v. G. Russell Rollyson, Jr., et al.

Bluefield, West Virginia, civil rights lawyers represented the Plaintiff on a 42 U.S.C. 1983 taking without due process.





Smith owned real property in West Virginia. She failed to pay the real estate taxes

assessed for 2016, and the Mercer County Sheriff sold a tax lien on the property to Boer.



Boer then sought a tax deed to the property. He prepared a list of those to be served

with notice of the lien sale, the amount needed to redeem the real estate, and the date by

which to redeem (collectively, the notice to redeem). See W. Va. Code Ann. § 11A-3-19(a)

(LexisNexis 2017 & Supp. 2018) (repealed 2022) (listing requirements for lien purchaser

to secure deed); id. § 11A-3-21(a) (LexisNexis 2017) (repealed 2022) (form of notice to

redeem).



Boer gave that list to the West Virginia State Auditor's Office so it could serve the

listed people with the notice to redeem. See W. Va. Code Ann. § 11A-3-22(a) (LexisNexis

2017) (repealed 2022).1 Boer's list identified Smith as one of the people to be notified by

certified and first-class mail at four addresses. But Boer didn't provide Smith's then-

current mailing address for the property, even though it was listed in two county databases,

one of which was publicly available. The certified mailings and two of the first-class

mailings the State Auditor's Office sent to Smith were returned marked as "Unclaimed,”

"Unable to Forward,” and/or "Not Deliverable as Addressed.”



Rollyson then opted to have Smith personally served, and he directed Boer to pay

for such service. But he didn't require Boer to search county records for Smith's mailing

address. The process servers were unable to effect service; they instead posted notices at

the property and at two other addresses listed for Smith.



After the deadline to redeem the property had expired, Rollyson issued Boer a tax

deed on April 1, 2019. Smith learned about the tax deed in late 2020.

Smith sued Rollyson and Boer, raising claims under 42 U.S.C. § 1983 and West

Virginia law. Following Smith's death, estate representatives Ann Barclay deWet and

Laurence E.T. Smith (together, deWet) were substituted as plaintiffs.



Rollyson and deWet each moved for summary judgment.2 The district court granted

Rollyson summary judgment and denied deWet's motion as moot.

The court faulted Rollyson for issuing the tax deed without directing Boer to search

county records anew for Smith’s address after the mailed notices to redeem were returned.

But the court concluded that qualified immunity insulated Rollyson because the duty of “a

deputy commissioner [like Rollyson], as a final step in the redemption notice process, [to]

require one seeking a tax deed to make a final search of the county tax records for new

address information of the previously unreachable owner” wasn’t clearly established on

April 1, 2019. deWet v. Rollyson, 733 F. Supp. 3d 519, 533-34 (S.D.W. Va. 2024).



The district court correctly found that Rollyson wasn’t on notice that he needed to

have Boer search county records anew for Smith’s mailing address, in lieu of the methods

Rollyson used to provide notice to Smith of her right to redeem the property. Accordingly,

the district court’s judgment is

AFFIRMED.