                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



Bobby G. Daniel,                                                                  FILED
                                                                                 June 24, 2013
Respondent Below, Petitioner                                                RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

vs) No. 12-0890 (Raleigh County 11-C-663)                                     OF WEST VIRGINIA




Brian Stump, Humane Officer of Raleigh County,
Petitioner Below, Respondent


                                MEMORANDUM DECISION
        Petitioner Bobby G. Daniel, by counsel Michael T. Clifford and Richelle K. Garlow,
appeals the Circuit Court of Raleigh County’s order entered on June 22, 2012, awarding custody
of petitioner’s horses to respondent for disposition. Respondent Brian Stump, Humane Officer of
Raleigh County, by counsel Edgar E. Bibb III, filed a response.

       This 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 an eighty-one year old resident of Raleigh County and owns over 100 acres
of land upon which he kept horses. Beginning in January of 2011, the sheriff ordered one of his
deputies, Bobby Stump,1 to begin checking on the horses. Bobby Stump delivered hay to the
animals through April of 2012. In August of 2011, Detective Brian Stump, as Humane Officer
for Raleigh County, filed a complaint and affidavit regarding his concern that the horses were
living in poor conditions and were not being fed by petitioner, and requested an order allowing
veterinary examination of the animals. The order was granted, and the horses were found to have
inadequate pastures and were contaminated by lice. In December of 2011, petitioner and the
county reached an agreement whereby petitioner would reduce the number of horses on his
property to ten horses and one mule. Petitioner previously owned up to forty-four horses. The
agreement recognized that foals may be born and thus gave petitioner until July 1, 2012, to
reduce to ten horses.
        In March of 2012, respondent advised the court that petitioner was not abiding by the
agreement after complaints that petitioner was adding horses to his herd after reducing their
number to approximately a dozen. A hearing was held wherein petitioner, Bobby Stump, and
several witnesses testified. Respondent argued that the fencing around petitioner’s land was
inadequate to contain the horses, which routinely got out and encroached on neighbors’ land and

       1
           Stump is an experienced horse trainer and farrier.
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the county road. After this hearing, the court reinstated the July 1, 2012, deadline for petitioner to
have only ten horses and one mule, and ordered petitioner to repair and/or reinforce his fence.

        On April 4, 2012, respondent filed for and received an Emergency Order to seize the
horses, based on allegations that the horses were still getting out, and the horses were removed
on April 5, 2012. Petitioner’s previous counsel withdrew and current counsel was then retained.
At that time, petitioner filed a motion to dismiss based on lack of jurisdiction of the circuit court
over animal seizure. A hearing was held on June 8, 2012, at which time the motion to dismiss
was denied because it was considered waived due to prior counsel’s failure to raise the issue.
There was extensive testimony regarding the seizure of the horses, the state of petitioner’s land,
and the condition of the horses. By order entered on June 22, 2012, the circuit court ruled that the
horses were neglected as a matter of law, upheld the seizure, and ordered petitioner to reimburse
respondent for the costs incurred in caring for the horses.

        On appeal, petitioner argues two assignments of error. First, he argues that the circuit
court erred in seizing petitioner’s horses because the horses were adequately cared for and not in
imminent danger, thereby depriving petitioner of his property without just cause. Secondly, he
argues that circuit court lacked jurisdiction over this action, as jurisdiction is conferred upon the
Magistrate Court by statute pursuant to West Virginia Code § 7-10-4.

       This Court has repeatedly noted the following standard:

       “In reviewing challenges to the findings and conclusions of the circuit court, we
       apply a two-prong deferential standard of review. We review the final order and
       the ultimate disposition under an abuse of discretion standard, and we review the
       circuit court's underlying factual findings under a clearly erroneous standard.
       Questions of law are subject to de novo review.” Syllabus point 2, Walker v. West
       Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 5, Peters v. Rivers Edge Mining, Inc., 224 W.Va. 160, 680 S.E.2d 791 (2009). As to the
seizure of the horses, a review of the record shows that respondent presented more than enough
evidence to support the fact that the horses were not well taken care of and were in imminent
danger. The testimony revealed that the horses were violent toward one another; that the fence
was inadequate pursuant to the relevant statutes governing fence height, leading to the horses
getting out of the pasture regularly; that the horses were in imminent danger when they got out of
the pasture as they were often in the road; that the horses often did not have adequate food; and,
that the horses’ health was not maintained. This Court finds that the circuit court’s order was not
an abuse of discretion nor was it clearly erroneous.

        Petitioner argues that a circuit court only has jurisdiction conferred by statute, and West
Virginia Code § 7-10-4, which governs animal seizure, places jurisdiction with magistrates. The
statute states as follows:

       (b) The owner or persons in possession, if his or her identity and residence are
       known, of any animal seized pursuant to subsection (a) of this section shall be
       provided written notice of the seizure, his or her liability for the cost and care of

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       the animal seized as provided in this section and the right to request a hearing in
       writing before a magistrate in the county where the animal was seized. The
       magistrate court shall schedule any hearing requested within ten working days of
       the receipt of the request. The failure of an owner or person in possession to
       request a hearing within five working days of the seizure is prima facie evidence
       of the abandonment of the animal. At the hearing, if requested, the magistrate
       shall determine by a preponderance of the evidence if the animal was abandoned,
       neglected or deprived of necessary sustenance, shelter, medical care or reasonable
       protection from fatal freezing or heat exhaustion or otherwise treated or used
       cruelly as set forth in this section.

W.Va. Code § 7-10-4(b). However, petitioner does not address the remainder of West Virginia
Code § 7-10-4, which states, in pertinent part,

       (h) The provisions of this section do not apply to farm livestock, as defined in
       subsection (d), section two, [§ 19-10B-2] article ten-b, chapter nineteen of this
       code; poultry, gaming fowl or wildlife kept in private or licensed game farms if
       kept and maintained according to usual and accepted standards of livestock;
       poultry, gaming fowl, wildlife or game farm production and management; nor to
       the humane use of animals or activities regulated under and in conformity with
       the provisions of 7 U.S.C. § 2131, et seq., and the regulations promulgated
       thereunder.

West Virginia Code § 19-10B-2(d) defines livestock as follows: “‘Livestock’ means cattle,
horses, swine . . . .” Therefore, West Virginia Code § 7-10-4 does not confer exclusive
jurisdiction in this matter to the magistrate court. We find no error in the circuit court’s refusal to
grant petitioner’s motion to dismiss.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: June 24, 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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