1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Verda B. Wiseman and Charles E. Wiseman, Petitioners Below, Petitioners

vs) No. 12-1312 (Randolph County 12-C-61)

Randolph County Commission, Chris See, Randolph County Commissioner, Joyce Jones, Randolph County Commissioner, Mike Taylor, Randolph County Commissioner, Jim Cain, Randolph County Dog Warden, and PetSmart, Inc., PetSmart Charities, Inc., PetSmart Charities Rescue Waggin Program, Maria Kostakos, Presid ent of the Randolph County Humane Society, Inc., Randolph County Humane Society, Inc., Kelly Scheidegger, Manager of the Randolph County Human Society, Defendants Below, Respondents



### MEMORANDUM DECISION

Petitioners Verda and Charles Wiseman, by c ounsel J. Burton Hunter III, appeal four orders entered on October 1, 2012, by the Circ uit Court of Randolph County in petitioner’s action for the alleged wrongful seizure and subse quent sale of their dog. The orders on appeal dismissed the Randolph County Commission and the individual Randolph County Commissioners (Chris See, Joyce Jones, and Mike Taylor), PetSmart, Inc., and PetSmart Charities, Inc.; and granted summary judgment in favor of the Randolph County Dog Warden Jim Cain and the Randolph County Humane She lter, its President Ma ria Kostankos, and its Manager, Kelly Scheidegger. The County Commi ssion and the individual Commissioners filed a response by counsel Peter G. Zurbuck and Robert C. Chenoweth. PetSmart, Inc. and PetSmart Charities, Inc. filed a response by counsel, R. Ford Francis. The Dog Warden filed a response by counsel, Peter G. Zurbuck and Robert C. Chenoweth. The Randolph County Humane Society, Inc., its President, and its Ma nager filed a response by counsel Thomas G. Steele. Petitioners filed a single reply to all four responses.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure. 

### FILED

October 18, 2013

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Petitioners filed a complain t against respondents alleging th at their nine-y ear-old, boxermix dog, “Nikki,” was wrongfully seized by th e dog warden and taken to the Randolph County Humane Society’s shelter. Petitioners further allege that the dog warden prevented petitioners from retrieving the dog from the animal shelter by threatening them with misdemeanor charges and fines, and kept a neighbor and petitione rs’ daughter from adopting the dog. Petitioners believe that the dog warden’s actions where in furt herance of a conspiracy to transport the dog to a more urban area where she could be sold for a profit.

Petitioners claim the following: Nikki was a treasured family pet who was well-groomed, gentle, obedient, spayed, and beloved by the pe titioners’ three young grandc hildren. On February 3, 2012, Nikki made her usual morning trip to the home of petitioners ’ neighbors which was situated about a quarter mile fr om petitioners’ home. The neighbor would give Nikki treats each morning when she arrived on his porch. The dog warden seized Nikki from the neighbor’s porch over the neighbor’s protests and transported her to the Randolph Count y Humane Society’s

shelter.

Within hours, petitioners went to the sh elter to reclaim their dog. The dog warden gave them a hostile reception and told them that if th ey asked for the dog to be returned, they would be charged with three misdem eanors (failing to pay the dog ta x, failing to obtain a rabies vaccine, and allowing the dog to run at large) , arrested, and fined over $600. The dog warden made it clear that if petitioners did not ask for the dog to be returned, th ey would not be charged

or fined.

The next day, February 4, 2012, petitioner’s neighbor attempted to adopt Nikki from the shelter. The dog warden told the neighbor that he could adopt the dog in three to four days. The neighbor returned three or four days later and was told by a shelter worker th at he needed to talk to the dog warden. The neighbor called the dog ward en from the shelter. The dog warden told the neighbor that he could not a dopt the dog and that the dog would not be returning to the community. The neighbor claimed he heard Nikki barking while he was at the shelter.

Petitioners’ daughter then went to the shel ter to adopt Nikki. She asked for a dog that met Nikki’s description. The shelter workers told her that no such dog was available. Petitioners’ daughter believed that the shelte r workers lied to her and that Nikki was at the shelter and available for adoption.

Petitioners (1) claim that Nikki was weari ng a collar and had received a rabies vaccine, (2) admit that they had not paid personal prop erty taxes on the dog, and (3) estimate she had a monetary value of $500. Petitioners believe that dogs are taken from the State of West Virginia to geographical areas of greater economic prosperity, and then sold under the guise of rescuing an animal. In support of their cons piracy theory, petitione rs cite to e-mails from a veterinarian who appears to be from Connecticut and from a retired prosecutor from Buffalo, New York. Petitioners’ counsel adds that, on two or more oc casions, he inadvertently witnessed the transport of numerous dogs packed into vans while he wa s traveling out-of-state. Counsel claims that when his wife inquired about the dogs, she learned from the operato rs of the vans that the dogs were pets from West Virginia who were bei ng transported to Connecticut and New York.3 Respondents counter petitioners’ statement of the facts with the following: On February 3, 2012, the dog warden received a telephone complaint from an el derly man who claimed that two dogs were running at large—one of whom was Nikki, that Nikki had jumped on him and on his elderly wife, and then defecated in the coupl e’s yard. The complainant indicated that if the dog warden did not collect the dog , he would take care of the issue with his rifle. The dog warden found Nikki running at large, seized her on petitioner’s neighbor’s porch, and impounded her. The dog was not wearing a re gistration or rabies vaccine ta g at the time she was seized.

The dog warden admits that petitioners came to the Humane Society’s shelter to retrieve their dog later that same day. The dog warden claims he told petitioners that (1) if they reclaimed the dog, they would be issued three citations whic h they could challenge in magistrate court by showing proof that they had paid personal prope rty taxes on the dog and that she had received a rabies vaccination; (2) upon showing such pr oof, the magistrate would likely dismiss the registration and rabies citations, but the “running at la rge” citation would remain; and (3) the fine for all three citations would be $600. The dog ward en told petitioners th at he did not cite dog owners who did not claim their dogs from the shelter, generally because the owners were unknown. The dog warden claims that, in response, petitioner-husband told the warden to “keep the f---ing dog.”

Petitioners twice attempted to reclaim Ni kki without paying the fines, through their neighbor and their daughter. The human society di d not release the dog to either because it had a policy of not adopting a dog into the neighborhood from which it was seized . Petitioner did not redeem Nikki within the shelter’s five day hold period. Thereafter, Nikki was legally adopted.

Petitioners filed their complain t against respondents on March 19, 2012.

On April 11, 2012, the Humane Society, its pr esident, and manager filed an answer.

On April 24, 2012, (1) the county commissi on and the individual commissioners filed a motion to dismiss petitioners’ complaint pursuant to Rule 12(b)(6) of the West Virginia Rule of Civil Procedure; (2) the dog ward en filed an answer; and (3) PetSmart, Inc. and PetSmart Charities, Inc. filed a Rule 12( b)(6) motion to dismiss. Thereafte r, petitioners and the dog warden both submitted and responded to written discovery requests.

On July 17, 2012, the dog warden filed a mo tion for summary judgment pursuant to Rule

56 of the Rules of Civil Procedure.

The circuit court held a hearing on all motions on August 10, 2012. On October 1, 2012, the circuit court (1) granted the county comm ission and the individual commissioners’ motion to dismiss; (2) granted the dog ward en’s motion for summary judgme nt; and (3) granted PetSmart, Inc., and PetSmart Charities, Inc. ’s motion to dismiss. Thereafter, petitioners conceded that the Humane Society, Inc., its presiden t, and manager were entitled to judgment as a matter of law. On October 24, 2012, the circuit court granted su mmary judgment in favor of the Humane Society, its president, and manager.4 Petitioners now appeal the circuit court’s or ders dismissing their ac tion against the county commission, the individual commi ssioners, PetSmart, Inc., and PetSmart Charities, Inc., and the orders granting summary judgment in favor of the dog warden and the Humane Society, its president, and manager.

We review a circuit court’s orde r granting a motion to dismiss de novo. State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc ., 194 W.Va. 770, 461 S.E. 2d 516 (1995). Likewise, we review a circuit court’s entry of summary judgment de novo. Syl. Pt. 1, Painter v. Peavy , 192 W.Va. 189, 451 S.E.2d 755 (1994).

Petitioners raise four assignments of error on appeal. Petitioners first argue that the circuit court erred in granting the motions to dism iss and the motions for summary judgment. Petitioners claim that their complaint was sufficient on its face to raise justiciable issues and genuine issues of material fact because it alleged that the res pondents acted in concert for their mutual benefit. As for the dog warden, petitioners argue that their complaint alleged that he (1) made extortionist threats that criminal charges would be filed against pe titioners if they sought the return of their dog, (2) knowingly and intentionally abus ed his police powers with the purpose of intimidating petitioners into giving up valuable property, and (3) lied regarding the status, prospects, and location of the dog. Petitioners assert that the dog warden, in his written discovery responses, admitted to telling petitioner s that they would be cited and fined if they attempted to retrieve their dog.

In regard to the county commission and the individual commissioners, petitioners’ complaint contains no legal claims or specific factual allegations agai nst these respondents. Pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, the trial court may dismiss a pleading for failure to state a claim upon which relief can be granted. Moreover, “essential material facts must app ear on the face of the complaint. See Greschler v. Greschler , 71 A.D.2d 322, 325, 422 N.Y.S.2d 718, 720 (1979).” Fass v. Nowsco Well Service , Ltd., 177 W.Va. 50, 51, 350 S.E.2d 562, 563 (1986). “[D]espite the allo wance in Rule 8(a) that the plaintiff’s statement of the claim be “short and plain,” a plaintiff may not ‘fumbl e around searching for a

meritorious claim within th e elastic boundaries of a ba rebones complaint. . . .” State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc ., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995) (internal citation omitted). As such, we find that the circuit court did not err in granting the

commission and the individual commissioners’ moti on to dismiss pursuant to Rule 12(b)(6).

As to the dog warden, petitioners’ complaint fa iled to raise any issues of material fact regarding him and failed to include any specif ic factual allegations supporting either their conspiracy claim or their claim that the dog ward en acted outside his legal authority when he seized and impounded petitioners’ dog. The dog warden ’s legal authority is set out, in part, in West Virginia Code § 19-20-6( a), which requires a dog warden to seize any dog more than six months of age that is not wear ing a valid registration tag:

The county dog warden and his deputies shall patrol the county in which they are appointed and shall seize on sight and impound any dog more than six months of age found not wearing a valid registration tag, except dogs kept constantly confined in a re gistered dog kennel. They shall be responsible for the5 proper care and final disposition of a ll impounded dogs . . . When any dog shall have been seized and impounded, the coun ty dog warden shall forthwith give notice to the owner of such dog, if such owner be known to the warden, that such dog has been impounded and that it will be sold or destroyed if not redeemed within five days. . . .

Petitioners’ dog was not wearing a registration tag when the dog warden seized her and she was nine years old. Further, the dog warden impounde d the dog at the Humane Society and gave petitioners actual notice of the seizure when he met with them on the day their dog was seized. Finally, petitioners did not claim their dog within the five day holding period. Hence, the circuit court did not err in finding that the dog warden complied with his statutory duties in seizing and impounding petitioners’ dog. Nor did the circuit cour t err when it granted summary judgment in the dog warden’s favor. “Government officials performing discretio nary functions are shielded from liability for civil damages insofar as th eir conduct does not viol ate clearly established statutory or constitutional rights of which a reasonabl e person would have known.” Syl.

, Bennett v. Coffman , 178 W.Va. 500, 361 S.E.2d 465 (1987). Moreov er, summary judgment is “‘designed to effect a prompt disposition of controversies on th eir merits without resort to a lengthy trial,’ if there essentially ‘is no real dispute as to salien t facts’ or if it only involves a question of law.

Painter , 192 W.Va. at 192 n. 5, 451 S.E.2d at 758 n. 5, quoting Oakes v. Monongahela Power

Co ., 158 W.Va. 18, 22, 207 S.E.2d 191, 194 (1974).” Williams v. Precision Coil, Inc ., 194 W.Va. 52, 58, 459 S.E.2d 329, 335 (1995).

Regarding PetSmart, Inc. and PetSmart Char ities, Inc., petitioners’ complaint contained no claim of wrongdoing against them as required by Rule 8 of the Ru les of Civil Procedure. In fact, PetSmart, Inc. and PetSmart Charities, Inc. are only menti oned three times in the complaint as follows: (1) PetSmart, Inc. is an Arizona Corporation authorized to do business in West Virginia; (2) PetSmart Charities, Inc. is a corpor ation authorized to do business in West Virginia and Randolph County; and (3) petitioners sought to ascertain relevant facts regarding the business relationship between the Humane Society and PetSmart, Inc. and PetSmart Charities, Inc. (including the Rescue Waggin Charity). “[B] ald statements or a carelessly drafted pleading will not survive a Rule 12(b)(6) motion to dismiss. . . .” Highmark West Virginia, Inc. v. Jamie

, 221 W.Va. 487, 491, 655 S.E.2d 509, 513 (2007) (citing Fass v. Nowsco Well Service , 177 W.Va. 50, 52, 350 S.E.2d 562, 564 (1986)). Hence, th e circuit court did not err in granting PetSmart, Inc. and PetSmart Charities, Inc.’s motion to dismiss.

Finally, in regard to the Humane Society, Inc. , its president, and manager, we note that petitioners, in their brief on appeal, do not assign any error to the circuit court’s order granting summary judgment in these respon dents favor. That said, we find that the circuit court properly granted summary judgment because petitioners’ co mplaint contained no specific assertions that these respondents violated any duty regarding the impoundment or disposition of petitioners’ dog, and made no showing of an issue of material fact regarding these respondents. The Humane Society, Inc. merely housed the dog during the five-day impoundment period set by West Virginia Code § 19-20-6(a). Fu rther, § 19-20-6(a) does not im pose any duty on these respondents regarding the dispos ition of the dog on ce it was removed from their shelter. Therefore, we find that the circuit court did not err in granting summary judgment in favor the Humane Society, Inc., its president, and manager6 Petitioners’ second assignment of error is the bald statement that the circuit court erred in refusing to allow discovery that denied their constitutional right to due process and prevented them from developing essential facts. Petitioners provide no information regarding how or why the circuit court denied discovery. Moreover, in their brief on appeal , petitioners do not deny that they submitted written discovery to respondents and that respondents replied to those requests. In fact, petitioners cite to an an swer given by the dog warden in response to written discovery. “On an appeal to this Court the appellant bears th e burden of showing that there was error in the proceedings below resulting in the judgment of which he complains, all presumptions being in

favor of the correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2,

Perdue v. Coiner , 156 W.Va. 467, 194 S.E.2d 657 (1973). Here, because petitioners fail to make any showing that there was error below, we pres ume a ruling regarding discovery by the circuit court, if any, was correct.

Petitioners’ third and fourth a ssignments of error are, respec tively, that they were denied their day in court and their right to a trial by jury. However, because the circuit court properly granted respondents’ motions to dismiss or motions for summary judgment, we find these assignments of error to be moot.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 18, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II