September 2004 Term
RUSSELL E. HAINES AND ESTELLA J. HAINES,
Plaintiffs Below, Appellants
HAMPSHIRE COUNTY COMMISSION AND DAVID GEE,
Defendants Below, Appellees
Appeal from the Circuit Court of Hampshire County
Honorable Andrew N. Frye, Jr., Judge
Civil Action No. 02-C-122
Submitted: September 8, 2004
Filed: November 15, 2004
Joseph L. Caltrider, Esq.
Bowles Rice McDavid Graff & Love
Martinsburg, West Virginia
Attorney for Appellees
The Opinion of the Court was delivered PER CURIAM.
2. 'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).' Syl. pt. 3, Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207 (1977). Syllabus Point 2, Holbrook v. Holbrook, 196 W.Va. 720, 474 S.E.2d 900 (1996) (per curiam ).
On November 27, 2002, the appellants, Russell E. Haines and Estella J. Haines,
filed a complaint against the appellees, the Hampshire County Commission and the
Hampshire County Animal Control Officer, David Gee, arising from the adoption of their
dog following its impoundment by Officer Gee. The appellants sought various damages
including: possession of their dog; monetary compensation; removal of Officer Gee from his
duties as Hampshire County Humane Officer; attorney's fees; costs; and other prospective
damages. On December 26, 2002, the appellees filed a motion to dismiss for a failure to state
a claim upon which relief could be granted. On January 30, 2003, the Circuit Court of
Hampshire County dismissed, without prejudice, the appellants' complaint pursuant to
W.Va.R.C.Pro. 12(b)(6), for the failure to state a claim upon which relief could be granted.
On March 21, 2003, the appellants filed an amended complaint. On June 2, 2003, the Circuit
Court of Hampshire County granted the appellees second motion to dismiss
W.Va.R.Civ.Pro. 12(b)(6). The appellants now appeal that decision. After reviewing the
facts of the case, the issues presented, and the relevant statutory and case law, this Court
affirms the decision of the circuit court.
On August 14, 2002, following a complaint about a dog running at large,
Officer Gee seized the appellants' dog in accordance with West Virginia Code § 19-20-6(a)
(See footnote 1)
As the dog's registration tags were illegible, Officer Gee was unable to identify the
appellants as the dog's owners. As such, he impounded the dog. On August 15, 2002, as
prescribed by W.Va. Code § 19-20-8 (1991),
(See footnote 2)
Officer Gee posted a public notice for a five
day period at the Hampshire County Courthouse that included a description of the dog.
Officer Gee then waited an additional eight days, and on August 28, 2002, he transported the
dog to PetSmart in Winchester, Virginia, where the dog was spayed, treated for infection, and
In contrast, the appellants contend that they contacted Officer Gee on or about
August 10, 2002, to report that their dog was missing. The appellants further allege that on
or about September 4, 2002, there was a notice depicting a photograph of their missing dog
in a local newspaper stating that the dog was available for adoption through the Hampshire
County Pet Adoption Program.
(See footnote 3)
The appellants maintain that on or about September 6, 2002,
they contacted Officer Gee with regard to the notice and were informed that the dog had
already been adopted.
Accordingly, on November 27, 2002, the appellants filed a complaint alleging
that their substantive and procedural due process rights were violated. They argued that their
dog was held in custody without notifying them of its whereabouts and then was unlawfully
sold. In response, on December 26, 2002, the appellees filed a motion to dismiss for failure
to state a claim upon which relief could be granted pursuant to W.Va. R.Civ.Pro. 12(b)(6).
On January 30, 2003, the circuit court granted the appellees' motion to dismiss, without
prejudice, and allowed the appellants sixty days to file an amended complaint. On March 21,
2003, the appellants filed an amended complaint. On June 2, 2003, the circuit court again
dismissed the appellants' motion pursuant to W.Va. R.Civ.Pro. 12(b)(6), stating that the
appellants failed to state a claim upon which relief could be granted. This appeal followed.
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure states in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
In Syllabus Points 1 and 2 of Holbrook v. Holbrook, 196 W.Va. 720, 474 S.E.2d 900 (1996) (per curiam ), we held:
1. Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo. Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).
2. 'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Syl. pt. 3, Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207 (1977).
Moreover, in Kessel v. Leavitt, 204 W.Va. 95, 119, 511 S.E.2d 720, 744 (1998), we also stated, When a circuit court grants a Rule 12(b)(6) motion and dismisses a complaint for failure to state a claim upon which relief can be granted, appellate review of the circuit court's dismissal of the complaint is de novo. Accord, Shaffer v. Charleston Area Med. Ctr., Inc., 199 W.Va. 428, 433, 485 S.E.2d 12, 17 (1997).
Conversely, the appellees maintain that the circuit court correctly granted their
motion because the appellants did not state a claim upon which relief could be granted. We
agree. The appellants seek three types of damages, i.e., repossession of their dog, monetary
damages, and the removal of Officer Gee. Upon reviewing the facts presented and the
applicable law, we believe that the appellants' allegations do not state a legal basis upon
which any of their requested relief can be granted.
In this case, the appellees followed the proper procedures in enforcing the
statutory provisions of the West Virginia Code. On August 14, 2002, after receiving a
complaint about a stray dog, Officer Gee impounded the appellants' dog pursuant to W.Va.
Code § 19-20-22 (1981),
(See footnote 4)
which requires the confinement of female dogs during the period
of estrus. Next, in compliance with W.Va. Code § 19-20-6, a public notice describing the
was placed in the county courthouse. Then, instead of exercising his option to euthanize
the dog at the expiration of the prescribed notice period, Officer Gee kept the dog for an
additional eight days and ultimately transported her to a PetSmart in Winchester, Virginia,
where she was spayed, treated for infection, and legally adopted.
While we sympathize with any pet owner who loses a companion animal for
any reason, the facts of this case as presented did not warrant intervention or relief by the
circuit court. We must also point out that a finding by this Court in favor of the appellants,
given the facts of this case, would render the effect of numerous animal control statutes
virtually null and void inasmuch as county employees, including county humane officers,
would fear the filing of legal actions each time they legitimately enforced the statutory laws
of this State. As such, intervention by this Court in such a manner would necessarily have
a chilling effect on future enforcement efforts.
As we have explained, there is no evidence that Officer Gee acted improperly.
The appellants do not allege that they contacted Officer Gee at any time between August 14,
2002, when Officer Gee impounded the dog, and September 6, 2002, when they did
ultimately contact Officer Gee regarding the adoption notice published in the local
newspaper. The appellants further do not describe any efforts to find their dog during this
(See footnote 5)
It appears that if the appellants had been diligent they had myriad opportunities
to claim their dog. It seems fairly basic that someone who had lost a pet dog would have
contacted the local animal control officer at the very least on a weekly basis. Appellants
failed to do so timely, and they are now without recourse against the appellees as the dog has
been lawfully adopted by other persons in another State.
Furthermore, while we find that the appellants' argument fails on its face, we
are compelled to point out additional problems with their argument. For instance, the
appellants' quest for repossession of the dog against the appellees is misdirected as the
appellees are no longer in possession of the dog and the lack of such possession of the
personal property sought is a valid defense to a cause of action for the return of personal
property under W.Va. Code § 55-6-1 (1981).
(See footnote 6)
Likewise, the appellants' alternative request
for monetary compensation, in lieu of the dog's return, is without merit as the appellants
admit that their dog was not assessed as personal property by the Hampshire County
Assessor. Thus, their claim for monetary damages would be indeterminable in light of W.Va.
Code § 19-20-11 (1951).
(See footnote 7)
With regard to damages sought for emotional distress and mental anguish, the appellants correctly recognize the difficulties with their own argument as they cite this Court's holding in Julian v. DeVincent, 155 W.Va. 320, 184 S.E.2d 535 (1971), which disallowed damages for sentimental value or mental distress. This Court in its Syllabus in DeVincent held, In order to recover damages for the loss of a dog the market value, pecuniary value or some special value must be proved and the general rule is that damages for sentimental value or mental suffering are not recoverable. Id.
Finally, the appellants argue that the circuit court's dismissal of their case was
not appropriate as they could still be entitled to other relief, i.e., the removal of the Animal
Control Officer, attorney's fees, costs, and their request for punitive damages. Having
determined that the appellees acted wholly within the scope of applicable West Virginia laws,
the appellants have not stated any viable claims for which they are entitled to relief.
Consequently, we believe that the circuit court correctly dismissed the appellants' complaint.
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 registered dog kennel. They shall be responsible for the proper care and final disposition of all impounded dogs. The county dog warden shall make a monthly report, in writing, to the county commission of his county. When any dog shall have been seized and impounded, the county 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. If the owner of such dog be not known to the dog warden, he shall post a notice in the county courthouse. The notice shall describe the dog and the place where seized and shall advise the unknown owner that such dog will be sold or destroyed if not redeemed within five days.