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Goldstein v. Peacemaker Properties, LLC

Supreme Court of West Virginia

March 15, 2019

BEN AND DIANE GOLDSTEIN, husband and wife, Plaintiffs Below, Petitioners
v.
PEACEMAKER PROPERTIES, LLC, a West Virginia Limited Liability Company, PEACEMAKER NATIONAL TRAINING CENTER, LLC, a West Virginia Limited Liability Company, Defendants Below, Respondents

          Submitted: January 9, 2019

          Appeal from the Circuit Court of Berkeley County The Honorable Christopher C. Wilkes Case No. 15-C-520

          Joseph L. Caltrider, Esq. Bowles Rice LLP Martinsburg, West Virginia Attorney for Petitioners

          Christopher P. Stroech, Esq. Gregory A. Bailey, Esq. Arnold & Bailey, PLLC Charles Town, West Virginia Attorneys for Respondents

          Kevin B. Burgess, Esq. Hamilton, Burgess, Young & Pollard, PLLC Fayetteville, West Virginia Attorney for Amicus Curiae, National Rifle Association of America

          Ian T. Masters, Esq. Manypenny Raines Law Office, PLLC Chester, West Virginia Attorney for Amicus Curiae, West Virginia Citizens Defense League

          JUSTICE ARMSTEAD and JUSTICE JENKINS concur, in part, and dissent, in part, and reserve the right to file separate opinions.

          OPINION

          WALKER, CHIEF JUSTICE

         SYLLABUS BY THE COURT

         1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189');">192 W.Va. 189, 451 S.E.2d 755 (1994).

         2. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108');">159 W.Va. 108, 219 S.E.2d 361 (1975).

         3. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714');">153 W.Va. 714, 172 S.E.2d 384 (1970).

         4. "'By virtue of the authority of Article 8, Section [13] of the Constitution of West Virginia and of Code, 1931, 2-1-1 it is within the province of the legislature to enact statutes which abrogate the common law.' Syllabus, Perry v. Twentieth St. Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974)." Syllabus Point 4, Verba v. Ghaphery, 210 W.Va. 30');">210 W.Va. 30, 552 S.E.2d 406 (2001).

         5. "As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement." Syllabus Point 2, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

         6. A motion under Rule 37 of the West Virginia Rules of Civil Procedure, or opposition to a Rule 37 motion, is substantially justified if the motion or opposition raises an issue about which reasonable people could differ as to the appropriateness of the contested action.

         Petitioners Ben and Diane Goldstein sued Respondents Peacemaker National Training Center, LLC, and its related entity, Peacemaker Properties, LLC, for nuisance in 2015. The Petitioners own land in Frederick County, Virginia, and they claim that noise from Respondents' nearby shooting ranges substantially and unreasonably interferes with their use and enjoyment of their rural property.

         In 2017, the West Virginia Legislature amended West Virginia Code § 61-6-23 (2014) to bar nuisance claims against a shooting range if the shooting range is in compliance with local noise ordinances. The Legislature specified that that amendment applied retroactively. Based upon that statutory amendment and Berkeley County's noise ordinance, the circuit court concluded that Petitioners' nuisance claim was retroactively barred, granted Respondents summary judgment, and dismissed Petitioners' suit. Petitioners now appeal that order, along with the circuit court's order denying their petition for attorneys' fees and costs under West Virginia Rule of Civil Procedure 37 and motion for additional sanctions due to Respondents' alleged discovery misconduct.

         We find that the circuit court correctly applied the 2017 amendment to West Virginia Code § 61-6-23 to dismiss, retroactively, Petitioners' nuisance claim seeking injunctive relief because Berkeley County's noise ordinance specifically exempts shooting ranges, such as Respondents', from complying with its limitations. But, because Petitioners' plea for money damages accrued prior to the 2017 amendment of § 61-6-23, Petitioners' right to pursue those damages was vested and the Legislature could not retroactively bar Petitioners from pursuing their nuisance claim for money damages. So, we reverse that part of the circuit court's order granting summary judgment to Respondents on Petitioners' nuisance claim for money damages and we remand the matter back to the circuit court for further proceedings. Finally, we find that the circuit court did not abuse its discretion by denying Petitioners' petition for attorneys' fees and costs and motion for additional sanctions for litigation misconduct, and we affirm the circuit court's order denying that petition and motion.[1]

         I. FACTS AND PROCEDURAL HISTORY

         We present the facts and procedural history of this case in two parts. First, we address the allegations giving rise to Petitioners' nuisance complaint, Respondents' motion for summary judgment, and the circuit court's order granting that motion. Second, we address the parties' lengthy discovery dispute leading to the circuit court's denial of Petitioners' petition for attorneys' fees and costs (fee petition) and motion for additional sanctions for litigation misconduct.

         A. Respondents' motion for summary judgment.

         Petitioners bought property in rural Frederick County, Virginia, in 1976. They designed and built a home on the land, and from 1983 until 2010, Mr. Goldstein commuted from the property to Washington, D.C., for work. Respondent Peacemaker Properties, LLC (Peacemaker Properties) owns a 501-acre parcel of land near Petitioners' property, straddling the Berkley County, West Virginia, and Frederick County, Virginia, line. In 2011, Peacemaker National Training Center (the Training Center), a large complex of shooting ranges, commenced operations on Peacemaker Properties' land.[2] Peacemaker National Training Center, LLC (Training Center LLC) operates the Training Center.

         Petitioners filed a verified, nuisance complaint against Peacemaker Properties and the Training Center (collectively, Respondents) in the Circuit Court of Berkeley County in September 2015. Petitioners alleged that before operations at the Training Center commenced, Respondents' manager, Cole McCulloch (McCulloch) made representations regarding its hours of operation and the noise that activities at Respondents' range would generate. Petitioners further alleged that, after commencing operations, shooting at the Training Center frequently occurred outside of its set hours of operation and in excess of the noise levels promised by McCulloch. These conditions, Petitioners alleged, substantially and unreasonably interfered with their use and enjoyment of their nearby property.

         For relief, Petitioners sought a temporary and permanent injunction from the circuit court to impose specific hours of operation and maximum noise levels upon Respondents. Should Respondents deviate from those prescriptions, Petitioners further asked that the circuit court require them (1) to implement noise abatement measures on Peacemaker Properties' land, or (2) in the event those abatement measures were unsuccessful, to compensate Petitioners for the cost of noise abatement measures on their own property "and any other damages permitted by West Virginia law and supported by the evidence." Petitioners also prayed for "such other legal and equitable relief as the [circuit court] shall deem just and proper under the circumstances."

         On June 24, 2017, Respondents filed a four-page motion for summary judgment with supporting memorandum of law, in which they argued that amendments to West Virginia Code § 61-6-23 enacted in 2017 retroactively "prohibit[ed] nuisance actions against gun ranges." Specifically, Respondents argued that subsections (e) and (f) of § 61-6-23, enacted in 2017, operated in combination with Berkeley County's noise ordinance to bar Petitioners' suit. The circuit court agreed, and, on August 11, 2017, entered an order granting summary judgment to Respondents and dismissing Petitioners' complaint with prejudice. Petitioners now appeal from that final order.

         B. Petitioners' Fee Petition and Motion for Additional Sanctions for Litigation Misconduct.

         Petitioners served discovery on Respondents on April 1, 2016, approximately six months after filing their verified complaint. Importantly, in that discovery, Petitioners requested that Respondents produce all documents in their possession or control identifying each person, organization, or entity that had used the ranges at the Training Center for approximately the previous ten years (requests for production 23 and 24). After receiving Respondents' responses[3] and objections, and an unsuccessful "meet and confer," Petitioners filed their First Motion to Compel in July 2016, seeking from Respondents complete responses to numerous interrogatories and requests for production, including requests for production 23 and 24. The circuit court referred Petitioners' motion to compel to a discovery commissioner, who conducted a lengthy hearing on September 2, 2016.

         On September 30, 2016, the discovery commissioner issued a recommended order granting-in-part and denying-in-part Petitioners' motion to compel. As for requests for production 23 and 24, the recommended order directed Respondents to produce responsive information subject to a protective order. Also in the recommended order, the discovery commissioner concluded that Petitioners had "substantially prevailed" and gave Petitioners leave to petition for attorneys' fees and expenses pursuant to West Virginia Rule of Civil Procedure 37(a)(4). Petitioners filed their first fee petition on December 12, 2016.

         Respondents filed exceptions and objections to the discovery commissioner's recommended order on October 14, 2016, arguing that the identity of their patrons was not relevant to Petitioners' nuisance claim; that their customer list was proprietary and confidential information; and, that "some military groups that use [Respondents'] ranges forbid the disclosure of member information." In November 2016, the circuit court overruled Respondents' objections, adopted the discovery commissioner's recommended order, in full, and entered the discovery commissioner's recommended protective order.

         Respondents then moved the circuit court to reconsider and stay its November 2016 order. With regard to requests for production 23 and 24, Respondents again argued that their client information was proprietary and beyond the scope of discovery. They also claimed that disclosure of this information could violate state and federal law pertaining to concealed carry permits and firearm sales and infringe upon those range users' right to freely associate and to keep and bear arms under the First and Second Amendments to the United States Constitution, respectively. In January 2017, the circuit court denied Respondents' motion for reconsideration and ordered Respondents to produce the requested information under the previously entered protective order. Respondents made their business records available to the Petitioners on March 22, 23, 29, 31, and April 7, 2017.

         On March 15, 2017, the West Virginia Citizens Defense League (CDL), Dominic Applegate (Applegate), and Keith Morgan (Morgan) served a motion to intervene[4] in this matter to "prevent the disclosure of information relating to [Respondents'] members and guests[.]" On March 17, 2017, Respondents posted a statement to their website regarding the circuit court's order granting Petitioners' motion to compel and identified the information that Respondents were obligated to produce to Petitioners under the court's November 2016 order. Supplemental motions to intervene from more of Respondents' clients followed on March 24 and 31, 2017, posing the same grounds for intervention as stated in CDL, Applegate, and Morgan's motion.

         The circuit court held a Pitrolo[5] hearing on Petitioners' fee petition on March 20, 2017, during which Respondents argued that a fee award was not mandatory under Rule 37(a)(4)(A). Then, on April 4, 2017, presiding Judge Gray Silver III recused himself from the case after receiving a voicemail and viewing an internet posting that he perceived as "part of an effort in support of the [Respondents] to intimidate [the circuit court] to rule for the [Respondents] on at least the pending motions, and to reconsider prior rulings in favor of the [Petitioners], and to threaten the Court to do so." Judge Silver transferred the case to Judge Christopher C. Wilkes, who presided over the remainder of the proceedings, below.

         On May 19, 2017, Petitioners submitted a supplemental brief in support of their fee petition and a new motion for additional sanctions for litigation misconduct, seeking entry of a default judgment in their favor. Petitioners alleged that Respondents' March 17 internet posting was designed to incite their clients and supporters to harass and threaten the court, Petitioners, and their counsel, and argued that the circuit court should impose harsh sanctions for such conduct. On August 9, 2017, Judge Wilkes denied Petitioners' pending fee petition and motion for additional sanctions for litigation misconduct by order, finding that Respondents had presented a "legitimate" discovery dispute that did not merit fee-shifting as a sanction pursuant to Rule 37(a)(4)(A).

         II. ANALYSIS

         As in the preceding section, we address Petitioners' arguments in two parts. First, we analyze their challenge to the circuit court's ruling at summary judgment. Second, we analyze their challenge to the circuit court's denial of their fee petition and motion for additional sanctions for litigation misconduct. Each challenge raises its own standard of review, which we discuss in the appropriate analysis section, below.

         A. Respondents' motion for summary judgment.

         We first consider the circuit court's August 11, 2017 order granting summary judgment to Respondents. "A circuit court's entry of summary judgment is reviewed de novo[, T[6] a term that "means [a]new; afresh; a second time."[7] Before addressing the parties' arguments, we first review the legislative background of West Virginia Code § 61-6-23, Berkeley County's noise ordinance, and the circuit court's order granting summary judgment to Respondents.

         (1) Legislative background of § 61-6-23.

         In 1998, the West Virginia Legislature enacted a new code section, § 61-6-23, [8] limiting nuisance actions against shooting ranges in certain circumstances. Under subsection (b) of § 61-6-23, as originally enacted, a landowner may not bring a nuisance claim against a nearby shooting range for noise if the range was established before the would-be nuisance plaintiff bought his property.[9] But, the statute preserved a nearby landowner's nuisance claim for noise (1) if the shooting range was established after the landowner bought his property; or (2) if the landowner bought his property after the shooting range was established, but there was a substantial change in the use of the range or shooting activity ceased at the range for a period of two years, but then resumed.[10]

         The Legislature amended § 61-6-23 in April 2017 (the 2017 Amendment).[11] Relevant to our discussion, the Legislature added two new subsections, (e)(1) and (f), which are reproduced, below:

(e)(1) No municipal or county ordinance regulating noise may subject a shooting range to noise control standards more stringent than those standards in effect at the time construction or operation of the shooting range began, whichever occurred earlier in time. The operation or use of a shooting range may not be enjoined based on noise, nor may any person be subject to an action for nuisance or criminal prosecution in any matter relating to noise resulting from the operation of a shooting range, if the shooting range is operating in compliance with all ordinances relating to noise in effect at the time the construction or operation of the shooting range began, whichever occurred earlier in time.
. . .
(f) It is the intent of the Legislature in enacting the amendments to this section during the 2017 regular session of the Legislature that the amendments be applied retroactively.

         The Legislature also added in 2017 the following proviso to subsections (b) and (c) of § 61-6-23: "Provided, That if a municipal or county ordinance regulating noise exists, subsection (e) of this section controls."

         (2) Berkeley County's noise ordinance.

         Berkeley County, where Petitioners' nuisance claim was pending in 2017, is one of the few in West Virginia that has passed a county-wide noise ordinance.[12] First adopted in 2007, and then amended in 2009, the ordinance places time and decibel limitations upon noise in residential settings.[13] The ordinance expressly states that those limitations "do not apply to: (1) [l]awful hunting or target shooting, trap, skeet or shooting ranges as defined in ยง 61-6-23, Code of West Virginia, ...


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