Ben Goldstein v. Peacemaker Properties, LLC

No. 17-0796 – Ben Goldstein and Diane Goldstein, husband and wife v. Peacemaker
Properties, LLC, a West Virginia Limited Liability Company, and
Peacemaker National Training Center, LLC, a West Virginia Limited
Liability Company
FILED
March 18, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Jenkins, Justice, concurring, in part, and dissenting, in part, joined by Justice Armstead:
The majority’s opinion in this case correctly finds that the legislative amendments
to W. Va. Code § 61-6-23 apply retroactively to deprive Mr. and Mrs. Goldstein of a claim
for injunctive relief against Peacemaker’s shooting range operations. Additionally, the
opinion also properly determines that the Goldsteins are not entitled to an award of costs
and/or attorney’s fees under Rule 37 of the West Virginia Rules of Civil Procedure because
Peacemaker provided “substantial justification” for its refusal to answer the Goldsteins’
discovery requests and/or its provision of limited information in response thereto.
However, this is the extent of my agreement with the majority in this case. I do not
agree with the majority’s assessment that the Goldsteins’ complaint sets forth a claim for
money damages sufficient to place Peacemaker on notice and preserve the Goldsteins’
nuisance claim because the only relief the Goldsteins seek in their complaint is injunctive
relief, which, by virtue of the legislative amendments to W. Va. Code § 61-6-23, is no
longer an available remedy against a shooting range under the facts and circumstances of
this case. For this reason, I respectfully dissent.
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Complaint Requests Only Injunctive Relief
Based upon the plain language of the Goldsteins’ complaint, I disagree with the
opinion’s resolution of the notice pleading issue. The majority’s opinion concludes that
the Goldsteins’ complaint included a claim for money damages such that their nuisance
claim was a vested property right that the Legislature could not usurp by making its
amendments to W. Va. Code § 61-6-23 retroactive. While I agree that West Virginia is a
notice pleading jurisdiction, I do not agree that the Goldsteins’ complaint adequately
asserted a claim for money damages insofar as their claim for relief requested injunctive
relief, or, in the alternative, other types of injunctive relief.
This case involves the application of W. Va. Code § 61-6-23. The operative
statutory language provides:
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.
W. Va. Code § 61-6-23(e)(1). The Legislature further expressly made this provision
retroactive. See W. Va. Code § 61-6-23(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.”). At the relevant times referenced in the statute,
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Berkeley County had adopted a noise ordinance, but its provisions specifically exempted
shooting ranges from its operation. The parties disagree as to whether Peacemaker was
“operating in compliance with all ordinances relating to noise” in effect at the relevant
times given that it is exempt therefrom, but the majority astutely recognizes that
Peacemaker, who was not found to have violated the pertinent noise ordinance, was in
compliance therewith.
Further, as the majority rightly observed, it is clear from the statutory language that
the Goldsteins’ claim for injunctive relief is prohibited by W. Va. Code § 61-6-23(e)(1):
injunctive relief is not a vested property right because it is future or prospective relief, and,
once an injunction is granted, it can be altered or withdrawn if the law that previously
authorized the injunctive relief later is changed to foreclose such remedy. See generally
Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S. Ct. 1483, 1501, 128 L. Ed. 2d
229 (1997) (recognizing that “relief by injunction operates in futuro,” and, thus, party had
no “vested right” in injunctive relief it had been awarded (internal quotations and citations
omitted)).
Thus, as the majority also correctly noted, the only relief that is potentially available
to the Goldsteins, then, is their claim for nuisance if such claim is a vested property right
insofar as the Legislature cannot retroactively apply a statute to deprive an individual of a
vested property right. See, e.g., Gribben v. Kirk, 197 W. Va. 20, 26, 475 S.E.2d 20, 26
(1996) (noting that Legislature cannot “retroactively change statutes so as to sweep away
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vested property rights” (citations omitted)). To be a vested property right, then, the pivotal
question is whether the Goldsteins’ complaint adequately pled a cause of action for
nuisance and requested monetary damages therefor. It is at this juncture, though, that I
must depart from my brethren. My reading of the complaint suggests that the Goldsteins
requested only injunctive relief therein, which, as noted previously, is not available to them
under the current language of W. Va. Code § 61-6-23.
Under the notice pleading standard of this State, a claim for money damages must
be apparent from the pleading, which, here, is the complaint. See W. Va. R. Civ. P. 8(a)
(“A pleading which sets forth a claim for relief, whether an original claim, counterclaim,
cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief
the pleader seeks.” (emphasis added)).
Indeed, Rule 8 of the Rules of Civil Procedure requires clarity . . . . The
primary purpose of these provisions is rooted in fair notice. Under Rule 8, a
complaint must be intelligibly sufficient for a circuit court or an opposing
party to understand whether a valid claim is alleged and, if so, what it is.
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d
516, 522 (1995). See also In re Estate of Olson, 2008 S.D. 97, ¶ 20, 757 N.W.2d 219, 225
(2008) (stating that “damages [must] be pled with reasonable certainty” (internal quotations
and citations omitted)). As such, a defendant should not be expected to have to read an
appellate brief to ascertain the precise nature of damages sought in a complaint. Rather,
the complaint, itself, should be sufficient to place the defendant on notice of the damages
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a plaintiff seeks and is required to contain a clear statement of the relief requested. See
generally Rule 8. The Goldsteins’ complaint does just that, but the relief sought in the
complaint is injunctive, not monetary.
Although the complaint sets forth the law governing nuisance and vaguely
references that Peacemaker, as a result of the operation of its shooting range, “has
substantially and unreasonably interfered with Mr. and Mrs. Goldstein’s private use and
enjoyment of their home property,” Compl. at 9, the complaint stops short of explaining
exactly how the Goldsteins have been injured by Peacemaker’s actions such that their claim
for the aforementioned monetary damages could reasonably be anticipated. Rather, the
injuries they claim to have suffered all speak in terms of injunctive relief by averring that,
[i]n particular, the Peacemaker National Training Center has substantially
and unreasonably interfered with Mr. and Mrs. Goldstein’s private use and
enjoyment of their home property, as well [as] all of its neighboring property
owners, by: 1) frequently exceeding the published hours of operation which
it previously acknowledged as reasonable in consideration of its neighbors’
concerns; and 2) frequently exceeding the noise levels which it previously
identified as reasonable in consideration of its neighbors’ concerns.
Compl. at 10. These averments are followed by the Goldsteins’ prayer for relief:
RELIEF
WHEREFORE the Plaintiffs, BEN GOLDSTEIN and DIANE
GOLDSTEIN, respectfully request this Honorable Court to grant them
temporary and permanent injunctive relief against the Defendants,
PEACEMAKER PROPERTIES, LLC, and PEACEMAKER NATIONAL
TRAINING CENTER, LLC, by imposing specifically enforceable
guidelines for: 1) hours of operation for the shooting range which may not
be enlarged under any circumstances (i.e. no shooting before or after those
hours originally published at any time); and 2) maximum noise levels from
the shooting range which may not be exceeded under any circumstances.
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Should the Defendants fail to meet these specific guidelines, the Plaintiffs
respectfully request this Honorable Court to grant them temporary and
permanent injunctive relief against the Defendants by requiring the
Defendants to implement reasonable and economically feasible noise
abatement measures on their own property with the objective of meeting
these guidelines. Should the Defendants still fail to meet these specific
guidelines, the Plaintiffs respectfully request this Honorable Court to award
monetary damages for the cost of implementing reasonable and necessary
noise abatement measures on their own property to comply with these
guidelines and any other damages permitted by West Virginia law and
supported by the evidence. Finally, the Plaintiffs respectfully request this
Honorable Court to grant then [sic] such other legal and equitable relief as
the Court shall deem just and proper under the circumstances.
Compl. at 10-11 (italicized emphasis added).
Therefore, the relief requested by the Goldsteins in their complaint specifically
requests “temporary and permanent injunctive relief” and the imposition of guidelines
regarding the operating hours of the shooting range and the maximum noise levels of the
shooting range. Compl. at 10. Alternatively, if Peacemaker fails to comply with such
guidelines, the Goldsteins request Peacemaker to implement noise abatement measures on
its property, and, only if Peacemaker fails to meet those guidelines, the Goldsteins then
request the “award [of] monetary damages for the cost of implementing reasonable and
necessary noise abatement measures on their property to comply with these guidelines.”
Compl. at 10. Although the Goldsteins further request “other damages” permitted by law
and “other legal and equitable relief” deemed just by the court, neither of these provisions
put the defendants on notice as to a claim for monetary damages for nuisance given that
the injuries claimed and damages requested in the complaint refer to injunctive relief.
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In their appellate brief to this Court, the Goldsteins finally state that they also are
asserting a claim for “monetary damages (i.e. diminution in value and annoyance and
inconvenience) caused by Peacemaker’s nuisance.” Pet. Br. at 42. Not only is this
revelation in the wrong pleading, the pleading in which it should have been stated, i.e., the
complaint, does not set forth grounds to support this alleged request for money damages
with sufficient specificity to preserve the Goldsteins’ claim for money damages in their
nuisance action against Peacemaker.
Insufficiently Pled Claim for Money Damages
Assuming arguendo that the Goldsteins’ complaint asserted a claim for money
damages as determined by the majority, the Goldsteins still are not entitled to pursue their
nuisance claim because they did not sufficiently plead their claim for monetary relief.
In this regard, the Goldsteins argue that their general request for “such other legal
and equitable relief as the Court shall deem just and proper under the circumstances”
suffices as a claim for money damages insofar as legal relief signifies monetary relief.
Compl. at 11. Be that as it may, such a general request is not sufficient to constitute a claim
for money damages. See Grode v. Mut. Fire, Marine, & Inland Ins. Co., 154 Pa. Cmwlth.
366, 374, 623 A.2d 933, 937 (1993) (concluding that request for “‘additional damages’”
did “not sufficiently set forth the type of damages [sought] and the legal basis for those
damages”).
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Furthermore, even if the Goldsteins’ complaint could be construed as requesting the
monetary damages that they reference in their brief to this Court, i.e., diminution in value,
annoyance, and inconvenience, these damages also have not been properly pled in the
complaint to afford the Goldsteins a claim for relief in nuisance. In this regard, a claim for
diminution of value requires a loss in value that the plaintiff’s property has sustained as a
result of the defendant’s allegedly wrongful conduct. See Allgood Rd. United Methodist
Church, Inc. v. Smith, 173 Ga. App. 28, 29, 325 S.E.2d 392, 394 (1984) (“The general rule
for the measure of damages involving real property is the diminution of the fair market
value of the property and/or the cost of repair or restoration.”). See also LaSalle Nat’l Bank
v. Willis, 378 Ill. App. 3d 307, 330, 880 N.E.2d 1075, 1093 (2007) (“[W]hen a landowner
has shown that he suffered a compensable injury, it is necessary to examine the exact
interest harmed.” (citation omitted)). Here, the Goldsteins do not set forth any such
allegations as to the reduction in their property’s value that they attribute to Peacemaker’s
lawful operation of its shooting range, alleging only that Peacemaker’s actions have
“substantially and unreasonably interfered with Mr. and Mrs. Goldstein’s private use and
enjoyment of their home property.” Compl. at 9, 10.
Additionally, in the context of nuisance, damages other than those for diminution of
value, such as annoyance and inconvenience as claimed herein, have been determined to
be special damages, which must be specially pled pursuant to Rule 9 of the West Virginia
Rules of Civil Procedure. “[T]he general measure of damages for a temporary nuisance
[is]: the diminution in the rental value of the property caused by the nuisance, plus any
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special damages. Special damages include the personal inconvenience, annoyance, and
discomfort caused by the existence of a nuisance.” Miller v. Rohling, 720 N.W.2d 562,
569 (Iowa 2006) (emphasis added; internal quotations and citations omitted). Accord
Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 185 (Iowa 2004) (concluding that if the
subject facility “will be operated indefinitely as a nuisance, the court should award special
damages supported by the evidence, past and future, as well as any decreased value of the
plaintiffs’ property proved by them” and that “[s]hould the evidence show the defendant
will abate the nuisance, the plaintiffs’ recovery would be limited to their special damages
up to the time of abatement and any diminution in the rental value of their property while
the nuisance exists”); Pettengill v. Turo, 159 Me. 350, 357, 193 A.2d 367, 372 (1963) (“The
measure of damages to be applied in cases of temporary nuisance injury to real estate,
supported by reason and authority, is that the injured land-owner is entitled to be
compensated for the depreciation in the rental or useable value of the property caused by
the nuisance . . . during the continuance of the injury, together with such special damage
(including permanent injury to land) as may be proved.” (citations omitted)). See also W.
Va. R. Civ. P. 9(g) (“When items of special damage are claimed, they shall be specifically
stated.” (emphasis added)); Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App.
650, 672-73, 464 S.E.2d 47, 63 (1995) (observing that “special damages must be pleaded,
and the facts giving rise to the special damages must be alleged so as to fairly inform the
defendant of the scope of plaintiff’s demand” (internal quotations and citations omitted)).
Again, however, the Goldsteins’ complaint falls short because it fails to set forth such
claims at all, much less with specificity.
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Contrary to the conclusion reached by the majority, the complaint at issue herein
simply does not provide sufficient notice of a claim for monetary relief to alert the
defendants as to the nature of damages requested, particularly when the specific damages
requested therein are couched in terms of injunctive relief. Accordingly, I would affirm
Judge Wilkes’ decision in this regard because the Goldsteins have not pled a claim for
money damages for nuisance and thus do not have a vested property right that survives the
legislative amendments to W. Va. Code § 61-6-23. For these reasons, I respectfully concur,
in part, and dissent, in part. I am authorized to state that Justice Armstead joins in this
separate opinion.
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