Negligence: State employee is immune against claims arising out of tax lien

Even if a state employee erred when he failed to require a lien holder to search or check county records anew for the property owner’s address, after learning that mailed notices to redeem her property were returned as undeliverable or unclaimed, he was entitled to qualified immunity.

Background

Ann Tierney Smith failed to pay taxes assessed on real property she owned in West Virginia. As a result, a tax lien was sold to Ed Boer. Boer then 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). Boer gave that list to the West Virginia State Auditor’s Office so it could serve the listed people with the notice to redeem.

But Boer’s list 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.”

G. Russell Rollyson Jr.—an employee of the West Virginia State Auditor’s Office—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. The district court granted Rollyson’s motion for summary judgment based on qualified immunity.

Analysis

Rollyson is entitled to qualified immunity. It wasn’t clearly established on April 1, 2019, that Rollyson needed to have Boer search or check county records anew for the property owner’s address after learning that mailed notices to redeem her property were returned as undeliverable or unclaimed.

It was clearly established, the plaintiff argues, that Rollyson had to demand that Boer search or check the local records anew for Smith’s mailing address for the property before issuing the tax deed. She cites four cases for that proposition. But none support it, let alone establish it clearly. Accordingly 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.

Affirmed.

DeWet v. Rollyson Jr., Case No. 24-1534, Oct. 2, 2025. 4th Cir. (Diaz), from SDWVA at Bluefield (Volk). Joseph M. Ward for Appellants. David Paul Cook Jr. for Appellee. VLW 025-2-378. 13 pp.