BEN AND DIANE GOLDSTEIN, husband and wife, Plaintiffs Below, Petitioners
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
from the Circuit Court of Berkeley County The Honorable
Christopher C. Wilkes Case No. 15-C-520
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
B. Burgess, Esq. Hamilton, Burgess, Young & Pollard, PLLC
Fayetteville, West Virginia Attorney for Amicus Curiae,
National Rifle Association of America
Masters, Esq. Manypenny Raines Law Office, PLLC Chester, West
Virginia Attorney for Amicus Curiae, West Virginia Citizens
JUSTICE ARMSTEAD and JUSTICE JENKINS concur, in part, and
dissent, in part, and reserve the right to file separate
WALKER, CHIEF JUSTICE
BY THE COURT
"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
"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).
"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
"'By virtue of the authority of Article 8, Section
 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).
"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
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.
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.
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.
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.
FACTS AND PROCEDURAL HISTORY
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.
Respondents' motion for summary judgment.
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. Peacemaker
National Training Center, LLC (Training Center LLC) operates
the Training Center.
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.
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
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.
Petitioners' Fee Petition and Motion for Additional
Sanctions for Litigation Misconduct.
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 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.
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,
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.
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.
March 15, 2017, the West Virginia Citizens Defense League
(CDL), Dominic Applegate (Applegate), and Keith Morgan
(Morgan) served a motion to intervene 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.
circuit court held a Pitrolo 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.
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).
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
Respondents' motion for summary judgment.
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 a term that "means [a]new; afresh; a
second time." 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.
Legislative background of § 61-6-23.
1998, the West Virginia Legislature enacted a new code
section, § 61-6-23,  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. 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
Legislature amended § 61-6-23 in April 2017 (the 2017
Amendment). 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.
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."
Berkeley County's noise ordinance.
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. First adopted in 2007, and
then amended in 2009, the ordinance places time and decibel
limitations upon noise in residential settings. 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 § 61-6-23, Code of West