1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

Jay Folse, 

Petitioner Below, Petitioner 

vs.) No. 22-0130 (Ohio County 21-C-149) 

G. Russell Rollyson, Jr. and John 

B. McCuskey, 

Respondents Below, Respondents 

MEMORANDUM DECISION

Petitioner Jay Folse appeals the Circuit Court of Ohio County’s January 19, 2022, order 

granting Respondents’ G. Russell Rollyson Jr. and John B. McCuskey’s1 motion to dismiss 

petitioner’s petition to compel issuance of deeds.2 Upon our review, we determine that oral 

argument is unnecessary and that a memorandum decision affirming the circuit court’s order is 

appropriate. See W. Va. R. App. P. 21. 

On November 16, 2020, petitioner purchased a tax lien and identified Tracey Cummings 

as the owner of that property. Unsuccessful attempts at personal service were made, and a notice 

of right to redeem was posted at the address provided by petitioner. In August 2021, Respondent 

McCuskey directed petitioner to provide a correct address to effectuate proper service of the notice 

of right to redeem, informing petitioner that the Auditor’s office “cannot grant a deed with the 

knowledge that notice failed and no additional efforts were taken.” However, no substitute address 

was provided. 

On March 9, 2021, petitioner purchased four tax liens. He identified Citi Financial, Inc., as 

the owner of the first such property. Two unsuccessful attempts at personal service were made to 

an address provided by petitioner, and a notice of right to redeem was posted at the address but the 

1

 At all times relevant to this proceeding, Respondent John B. “JB” McCuskey, was the 

West Virginia State Auditor (“Auditor”) and Commissioner for Delinquent and Nonentered Lands 

for the State of West Virginia, and Respondent G. Russell Rollyson, Jr., was the Senior Deputy 

State Auditor. 

2

 Petitioner is represented by counsel Robert W. Bright, and respondents are represented 

by counsel David P. Cook Jr. 

FILED 

June 13, 2023 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
2 

process server stated that the location was a “two-story home . . . [that] looks residential not 

commercial.” Respondent Rollyson informed petitioner that personal service was not successful, 

that a new address was needed for Citi Financial, Inc., and that petitioner’s credit card would be 

refunded. Petitioner did not provide a new address.3

For the second tax lien petitioner purchased on that date, he identified Kenneth Burch as 

the owner entitled to notice. Petitioner directed the Auditor to serve, via certified mail only, “City 

of Wheeling” and “State of West Virginia,” both at Wheeling, West Virginia, addresses. An 

unsuccessful attempt at personal service was made, but according to the affidavit, the process 

server was informed by the current resident at that address that Mr. Burch does not live at the 

address petitioner provided. Therefore, the Auditor directed petitioner to provide a substitute 

address to effectuate service of the notice of the right to redeem, but petitioner failed to do so. 

Petitioner identified Anna Calcagno as the owner of the third tax lien petitioner purchased 

on March 9, 2021. As petitioner requested, the Auditor attempted to serve Ms. Calcagno via 

certified mail only. However, the circuit court noted that the tracking number showed that the 

notice of right to redeem had not been delivered. On July 8, 2021, the Auditor requested that 

petitioner provide the correct address and an additional $42.86, which represents the funds required 

to prepare and serve the notice to redeem by personal process service. Petitioner did not provide 

the requested funds. 

The final tax lien at issue in this case was also purchased on March 9, 2021, and petitioner 

identified Kathryn Galloway as the owner. The certified mail sent to Ms. Galloway, at an address 

provided by petitioner, was returned to the sender, indicating it was “Not Deliverable As 

Addressed, Unable to Forward.” On July 8, 2021, the Auditor notified petitioner and requested a 

substitute address. In response, petitioner requested that the Auditor personally serve Ms. 

Galloway at the same address previously provided through a process server. An unsuccessful 

3

 While petitioner presented additional documents to this Court that touched on Citi 

Financial, Inc.’s address at various times, he admits that he did not present those documents to the 

circuit court. This Court has long held that an appellate 

court cannot hear evidence other than that brought up for review, except in the 

exercise of original jurisdiction. . . . [This] means that [an appellate court] shall deal 

only with evidence taken below and brought up for the purpose of a review of an 

order or decree made upon it below. It means that in using our appellate powers we 

shall consider no other evidence[.] 

Maxwell v. Maxwell, 67 W. Va. 119, 123, 67 S.E. 379, 381 (1910). “Accordingly, it is the parties’ 

duty to make sure that evidence relevant to a judicial determination be placed in the record before 

the lower [tribunal] so that [it] may properly [be] consider[ed] . . . on appeal.” W. Va. Dep’t. of 

Health and Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 494 n.6, 475 S.E.2d 865, 870 

n.6 (1996); see also Pearson v. Pearson, 200 W. Va. 139, 145 n.4, 488 S.E.2d 414, 420 n.4 

(1997) (“This Court will not consider evidence which was not in the record before the circuit 

court.”); Powderidge Unit Owners Assoc. v. Highland Props., Ltd., 196 W. Va. 692, 700, 474 

S.E.2d 872, 880 (1996). Thus, we will not consider these documents in this appeal. 
3 

attempt at personal service was made on August 5, 2021. The process server noted that Ms. 

Galloway does not reside at that address. The Auditor then sent correspondence to petitioner 

requesting a substitute address for service for Ms. Galloway, but petitioner failed to provide such 

address. 

On September 13, 2021, petitioner filed a petition in the Circuit Court of Ohio County 

seeking to compel the Auditor to issue the tax deeds for four of the properties and to issue a notice 

of right to redeem for Ms. Calcagno’s property. On October 7, 2021, the Auditor filed a motion to 

dismiss petitioner’s petition. By order entered on January 19, 2022, the circuit court dismissed 

petitioner’s petition, finding that petitioner failed to state a claim upon which relief can be granted. 

Upon consideration of the facts related to each of the five tax lien purchases, the circuit court 

concluded that the Auditor was justified in not issuing the respective deeds. It also found, based 

on the factual record and controlling law, that there was no evidence that either respondent refused 

to perform any statutory duty required by them. The circuit court found that the dismissal of the 

petition was both factually and legally appropriate, and it dismissed each of petitioner’s claims 

with prejudice. Petitioner appeals from that January 19, 2022, order. 

“‘Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de 

novo.’ Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 

770, 461 S.E.2d 516 (1995).” Syl. Pt. 1, Jones v. Logan Cnty. Bd. of Educ., 247 W. Va. 463, 881 

S.E.2d 374 (2022). The crux of petitioner’s argument is that the circuit court incorrectly required 

“actual notice” when only reasonably diligent efforts to notify the property owners was required. 

West Virginia Code § 11A-3-52 (2020) provides, in relevant part: 

(a) Within 45 days following the approval of the sale by the auditor pursuant to § 

11A-3-51 of this code, the purchaser, his or her heirs or assigns, in order to secure 

a deed for the real estate purchased, shall: 

(1) Prepare a list of those to be served with notice to redeem and request the deputy 

commissioner to prepare and serve the notice as provided in § 11A-3-54[4] and § 

11A-3-55[5] of this code; 

(2) When the real property subject to the tax lien was classified as Class II property, 

provide the deputy commissioner with the actual mailing address of the property 

that is subject to the tax lien or liens purchased; and 

(3) Deposit, or offer to deposit, with the deputy commissioner a sum sufficient to 

cover the costs of preparing and serving the notice. 

(b) If the purchaser fails to fulfill the requirements set forth in subsection (a) of this 

section, the purchaser shall lose all the benefits of his or her purchase. 

4

 West Virginia Code § 11A-3-54 (2022), details the notice to be prepared by the Auditor 

“[w]henever the provisions of § 11-3A-52 have been complied with . . . .” 

5

 West Virginia Code § 11A-3-55 (2022), relates to service of the notice to be prepared by 

the Auditor pursuant to § 11A-3-54. With the exception of service upon Ms. Calcagno, for which 

petitioner failed to submit payment for personal service as the Auditor requested, petitioner does 

not argue that respondents failed to fulfill a duty imposed by § 11A-3-55. 
4 

As this Court has held, 

[t]here are certain constitutional due process requirements for notice of a 

tax sale of real property. Where a party having an interest in the property can 

reasonably be identified from public records or otherwise, due process requires that 

such party be provided notice by mail or other means as certain to ensure actual 

notice. 

Syl. Pt. 1, Lilly v. Duke, 180 W. Va. 228, 376 S.E.2d 122 (1988). Further, 

the decisions of this Court have made clear that “the right of a landowner to have 

the statutory procedures complied with before he is deprived of his land is 

fundamental[.]” [State ex rel.] Morgan [v. Miller], 177 W. Va. [97,] 106, 350 S.E.2d 

[724,] 734 [(1986)]. See also Syl. pt. 1, Cook v. Duncan, 171 W. Va. 747, 301 

S.E.2d 837 (1983) (“Persons seeking to obtain complete title to property sold for 

taxes must comply literally with the statutory requirements.”). 

Archuleta v. US Liens, LLC, 240 W. Va. 519, 525, 813 S.E.2d 761, 767 (2018).6

As the circuit court found, the attempted in-person service and service by certified mail 

were unsuccessful. Despite Respondents’ requests, petitioner failed to provide any other address 

for the individuals and businesses petitioner identified as the owners of the five properties, and he 

failed to provide the additional requested funds required to prepare and serve the notice to redeem 

by personal process service. Further, because the argument section of petitioner’s brief contains 

only one citation to the record, which was a quote from respondents’ counsel in an unrelated case, 

petitioner fails to point this Court to documents that support his arguments on appeal in violation 

of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure.7 Therefore, petitioner has 

failed to show that he complied literally with the requirements of § 11A-3-52, which is necessary 

6

 We recently addressed a similar case involving petitioner and Respondent Rollyson 

wherein petitioner admitted that he failed to provide a complete list of those entitled to notice to 

redeem. We affirmed the circuit court’s dismissal of petitioner’s petition to compel Respondent 

Rollyson to issue a notice to redeem and allow petitioner’s purchase of property due to his failure 

to comply literally with the requirements of West Virginia Code § 11A-3-52. Folse v. Rollyson, 

No. 21-0340, 2022 WL 293986 (W. Va. Feb. 1, 2022) (memorandum decision). 

7

 Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires, in relevant 

part, that briefs must contain “an argument clearly exhibiting the points of fact and law presented, 

. . . [and] appropriate and specific citations to the record on appeal[.] The Intermediate Court and 

the Supreme Court may disregard errors that are not adequately supported by specific references 

to the record on appeal.”
5 

to trigger a duty on the part of respondents.8 For these reasons, we cannot find that the circuit court 

erred by granting respondents’ motion to dismiss. 

Petitioner further contends that the circuit court erred by not ordering respondent to issue 

the notice to redeem for Ms. Calcagno’s property. In his one-paragraph argument on this issue, he 

asserts there was a factual dispute regarding whether the notice of right to redeem was “actually 

mailed out to the owner” so the factual dispute should not have been decided on a motion to 

dismiss. However, petitioner fails to cite to the record in support of his contentions, which is 

particularly important when addressing what he argues is a factual dispute. Due to his continued 

failure to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, it remains 

unclear to this Court whether the record contains factual support for petitioner’s argument. We, 

therefore, decline to address the merits of this argument. 

Finally, petitioner argues that the circuit court erred by “not evaluating [his] amended 

petitions” and by not granting petitioner leave to file those amended petitions. Again without citing 

to the record, petitioner asserts that the first motion for leave to file an amended petition was not 

granted by the circuit court while the second was “never even considered” by it. The record 

includes a January 20, 2022, circuit court order denying petitioner’s motion for leave to file an 

amended petition, finding that because the circuit court had decided to grant respondents’ motion 

to dismiss, the motion to amend was moot. As we recently reiterated, 

[a] trial court is vested with a sound discretion in granting or refusing leave to 

amend pleadings in civil actions. Leave to amend should be freely given when 

justice so requires, but the action of a trial court in refusing to grant leave to amend 

a pleading will not be regarded as reversible error in the absence of a showing of 

an abuse of the trial court’s discretion in ruling upon a motion for leave to amend. 

Donahue v. Mammoth Restoration & Cleaning, 246 W. Va. 398, 404, 874 S.E.2d 1, 7 (2022) 

(quoting Syl. Pt. 6, Perdue v. S.J. Groves & Sons Co., 152 W. Va. 222, 161 S.E.2d 250 (1968)). 

Based on the record before us, we find that the circuit court did not abuse its discretion in refusing 

to allow petitioner to amend, as that request was moot. For the reasons set forth herein, we affirm 

the circuit court’s January 19, 2022, order granting respondents’ motion to dismiss petitioner’s 

petition. 

Affirmed. 

8 Because we find that petitioner failed to comply with a statutory requirement that would 

trigger a duty on the part of respondents, we need not address petitioner’s contentions that he was 

entitled to damages, fees, and costs. See W. Va. Code § 11A-3-67 (“If any officer mentioned in 

this article shall refuse to perform any duty required of him, he shall forfeit not less than twentyfive nor more than one hundred dollars for each such failure or refusal . . . .); see also Syl. Pt. 6,

W. Va. Dep’t of Transp., Div. of Highways v. Parkersburg Inn, Inc., 222 W. Va. 688, 671 S.E.2d 

693 (2008) (“When a plaintiff does not prevail as to liability, any errors he claims as to the issue 

of damages are harmless because, without a verdict on the liability issue, the plaintiff is not entitled 

to any damages.”). 
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ISSUED: June 13, 2023 

CONCURRED IN BY: 

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice John A. Hutchison 

Justice William R. Wooton 

Justice C. Haley Bunn