                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
                                                                                   July 8, 2013
 David Cline,                                                                RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
 Plaintiff Below, Petitioner                                                   OF WEST VIRGINIA


 vs.) No. 12-0799 (Hancock County 11-C-137)

 Hancock County Commission,
 Defendant Below, Respondent


                               MEMORANDUM DECISION

        Petitioner David Cline, pro se, appeals the order of the Circuit Court of Hancock County,
entered June 19, 2012, denying his motion to alter or amend the circuit court’s June 4, 2012 order
that dismissed his action as moot. Respondent Hancock County Commission, by counsel William
T. Fahey, filed a response. Petitioner filed a reply.

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

        Petitioner is a resident taxpayer in Hancock County, West Virginia. On July 26, 2011,
petitioner filed a complaint seeking a declaratory judgment. Petitioner asked the circuit court to
declare invalid respondent’s June 23, 2011, order calling a special election for October 4, 2011, to
approve an additional excess levy.

         The intended purpose of the levy was “to provide [additional] financial support for the
Hancock County Animal Shelter Foundation . . . for the fiscal years beginning July 1, 2012, July 1,
2013, and July 1, 2014.” Pursuant to a lease and operating agreement, respondent contracts with
the Foundation “with respect to the care, maintenance, control and destruction of dogs and cats
pursuant to Chapter 19, Article 20 of the West Virginia Code.”
         In his complaint, petitioner contended that respondent lacked the authority to provide
direct financial support to a private organization such as the Foundation and that the Foundation’s
goal of being a “low-kill” animal shelter went beyond respondent’s statutory obligations to stray
dogs and cats. Respondent filed a response disputing petitioner’s contentions of law.

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         Following a September 23, 2011 hearing at which both parties appeared, the circuit court
determined that “in the event that the levy fails in the election of October 4, 2011 then this matter
would be moot and would be dismissed.” If the voters approved the levy, the circuit court stated
that it would give the case further consideration.

        At a subsequent hearing on January 20, 2012, “Counsel for [respondent] advised the
[circuit c]ourt that an official tally had been taken on the animal levy and it was defeated by the
voters; on the basis thereof, counsel for [respondent] asked that this matter be dismissed as moot.”
The circuit court noted petitioner’s argument that guidance was still needed in the event that there
would be a future levy, but ruled that “[petitioner’s] request was more for an advisory opinion
which the Court was not inclined to grant.” Accordingly, the circuit court dismissed petitioner’s
action as moot.

        During the interval between the January 20, 2012 hearing and the entry of the dismissal on
June 4, 2012, respondent called another special excess levy election to be held at the same time as
the regularly scheduled primary election on May 8, 2012, “to provide [additional] financial
support for the Foundation . . . for the fiscal years beginning July 1, 2012, July 1, 2013, July 1,
2014, and July 1, 2015.” (emphasis added) After this special election was called by an order
entered March 1, 2012, petitioner attempted to have his case reopened.

       The circuit court scheduled a hearing for June 8, 2012, but later decided to cancel the
hearing and enter its order dismissing petitioner’s action as moot. Petitioner filed a motion to alter
or amend the circuit court’s June 4, 2012 order, which the court denied by an one-page order
entered June 19, 2012.

        “‘Moot questions or abstract propositions, the decision of which would avail nothing in the
determination of controverted rights of persons or of property, are not properly cognizable by a
court.’ Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State
ex rel. McCabe v. Seifert, 220 W.Va. 79, 640 S.E.2d 142 (2006).

       On appeal, petitioner indicates that after the second special election occurred on May 8,
2012, during which the voters approved the excess levy, respondent issued an order establishing
the new levy rates. Petitioner argues that the issue between the parties is alive and that the
controversy continues. In response, respondent argues that no basis exists in either fact or law for
reviving petitioner’s action and that if petitioner wanted to challenge the levy that was approved on
May 8, 2012, he should have instituted a new action.

         Petitioner filed his action to challenge respondent’s June 23, 2011 order calling the
October 4, 2011 special election to approve an additional excess levy to support the Foundation for
the fiscal years beginning on beginning July 1, 2012, July 1, 2013, and July 1, 2014. That excess
levy was defeated. The special election subsequently called for May 8, 2012 had not been ordered
at the time petitioner filed his action. Also, the excess levy that was approved in the May 8, 2012
election is different from the levy that was defeated on October 4, 2011, in that the approved levy
included funding for the fiscal year beginning on July 1, 2015. After careful consideration, this
Court finds that the voters’ defeat of the levy on October 4, 2011, rendered petitioner’s action
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moot. Therefore, the Court concludes that the circuit court did not err in dismissing the case.

         For the foregoing reasons, we find no error in the decision of the Circuit Court of Hancock
County and affirm the circuit court’s order, entered June 19, 2012, denying petitioner’s motion to
alter or amend its June 4, 2012 order that dismissed his action as moot.

                                                                                          Affirmed.


ISSUED: July 8, 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




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