In 1976, Petitioners purchased a home in rural Winchester, Virginia, where they lived for over 40 years until retirement. In 2011, Respondent opened a shooting range on an adjoining property which is advertised as “the largest shooting sports complex on the east coast.” During public hearings before the Berkeley County planning commission, it was represented that Respondent would operate at hours that were sensitive to the concerns of neighbors and that noise levels would not exceed 65 decibels. After opening, however, Respondent extended its hours of operation, hosting events as late as 11:30 p.m. Furthermore, Petitioners allege that noise levels at their home were as high as 94 decibels.
On September 21, 2015, Petitioners filed a nuisance suit in Berkeley County. Primarily, Petitioners sought injunctive relief to enforce the operating hours and noise levels as they were presented to the planning commission. Alternatively, they sought damages.
Respondent moved to dismiss, citing the 2017 amendments to W.Va. Code 61-2-23 addressing shooting ranges. Under the amendments, a shooting range is not subject to common law nuisance claims if it 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.” Because the Berkeley County noise ordinance exempts shooting ranges, the trial court concluded that Respondent was, in fact, “operating in a manner consistent with the local noise ordinance.” The amendments could be applied retroactively because Petitioners did not have any vested rights. Petitioners’ claims were dismissed and they appealed.
1. In cases where a county noise ordinance exempts shooting ranges, do the 2017 amendments to W.Va. Code 61-2-23 effectively eliminate any nuisance claim against a shooting range?
2. Can the 2017 amendments to W.Va. Code 61-2-23 be applied retroactively to pending litigation?
In a 3-2 decision, the Supreme Court affirmed in part and reversed in part.
The Supreme Court agreed that the 2017 amendments to W.Va. Code 61-6-23 applied and that they could be applied retroactively to bar Petitioner’s claim for injunctive relief. Petitioner argued that the amendments only came into play if Respondent’s shooting range was operating in compliance with the applicable noise ordinance. Because Berkeley County’s ordinance did not, in fact, apply to shooting ranges, Petitioner argued that it was impossible for Respondent to comply and, therefore, all of Petitioner’s rights and remedies were preserved. The Supreme Court rejected this argument, concluding that petitioner’s interpretation of the amendment would render it meaningless: “Because Berkeley County chose not to impose noise limits on [Respondents], their range cannot be out of compliance with the ordinance.” Thus, the language of the amendment barred Petitioner’s equitable claim.
The Court, however, reached a different result regarding Petitioner’s claim for monetary relief. As the Court phrased the issue: “If [Petitioner’s] 2015 verified complaint contained a claim for legal relief, rather than future injunctive relief only, then the circuit court erred in applying the 2017 amendment to dismiss that claim, regardless of the legislature’s direction that the 2017 amendment should apply retroactively.”
In addressing this issue, the Court reaffirmed its commitment to notice pleading and not to the more rigid, fact-based pleading standards under the federal rules. With this in mind, the Court took notice of the complaint’s demand for “monetary damages,” for “any other damages permitted by West Virginia law,” and for “such other legal…relief” as the trial court found to be proper and just. The Court also observed that “Petitioner’s plea for money damages does not disappear because it is pleaded in the alternative.” For all of these reasons, the Court found that the Petitioner had, in fact, pled a claim for monetary relief--a claim that could be prosecuted notwithstanding the 2017 amendment.
Finally, the Court addressed the issue of whether Petitioner was entitled to attorney fees as a result of a discovery dispute. Rule 37 provides that if a party seeking discovery relief prevails, the trial court shall award attorney fees unless it finds that the objection was “substantially justified” or that a fee award is otherwise “unjust.” The trial court, believing Respondent’s objections to be “legitimate,” denied fees. The Supreme Court affirmed, and adopted a new syllabus to assist attorneys and judges in dealing with fee issues in the future:
“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.”
Justices Jenkins and Armstead dissented from the opinion insofar as it found that petitioner had pled a claim for monetary relief. Despite the demands for monetary damages that appear throughout the complaint, including in the demand for judgment, the dissenters were of the view that the complaint “does not set forth grounds to support this alleged request for money damages with sufficient specificity to preserve [Petitioner’s] claim for money damages in their nuisance action against [Respondent].”
This case should serve as a warning. Yes, West Virginia is committed to the principle of notice pleading. However, the better practice is to eliminate any ambiguity regarding the claims you are asserting and the remedies, both legal and equitable, you are seeking to recover. It is certainly wise to include broad language in the demand for judgment seeking any and all relief. However, that is not enough. The allegations of the complaint itself should also spell out the kind of relief you are seeking.