                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Don Boardwine,
Plaintiff Below, Petitioner                                                       FILED
                                                                                November 12, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 13-0067 (Kanawha County 12-C-1912)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Kanawha Charleston Humane Association,
Defendant Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Don Boardwine, appearing pro se, appeals the order of the Circuit Court of
Kanawha County, entered December 18, 2012, that granted respondent’s motion to dismiss
petitioner’s civil action for a lack of standing to bring his claims. The circuit court also noted
petitioner’s failure to appear for the hearing on the motion. Respondent Kanawha Charleston
Humane Association, by counsel David J. Mincer and Michael W. Taylor, 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. For the reasons expressed below, the decision is reversed and this case is
remanded for further proceedings. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision
rather than an opinion.

       On September 20, 2012, petitioner filed the following complaint against respondent:

               [Petitioner] paid for the adoption of a diseased dog on September
               20, 2010. The animal was tested and treated for Parvo within 24
               hours of purchase.[1] [Respondent] offered no refund. I was put in
               the position to loose [sic] the purchase price and the purchase if I
               had not paid for the medical cost of the Parvo treatment $441.00. I
               am asking the court to make [Respondent responsible] for
               reimbursement of the medical cost and to stop adopting out diseased
               animals.


       1
         Parvo is “a highly contagious febrile disease of dogs that is caused by a parvovirus . . .
and that is marked by loss of appetite, lethargy, often bloody diarrhea and vomiting, and
sometimes death.” Dombrowski v. Lumpkin County, Civil Action No. 2:11–CV–0276–RWS–JCF,
2013 WL 2099137, at *2 n. 2 (N.D. Ga. March 21, 2013) (magistrate’s report and
recommendation) (quoting Merriam–Webster’s Collegiate Dictionary 846 (10th ed. 2002)).
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On November 2, 2012, respondent moved to dismiss petitioner’s complaint. On November 15,
2012, respondent noticed a hearing on its motion to dismiss “before the Honorable James C.
Stucky on December 11, 2012, at 9:30 a.m. (emphasis in original).” The notice of hearing gave
no information as to where the hearing was to occur.

       Respondent appeared for the December 11, 2012 hearing, but petitioner did not. After
having the bailiff call petitioner’s name three times in the hallway, the circuit court proceeded with
the hearing. Respondent argued that petitioner did not have standing to bring his claim for
reimbursement of the $441 veterinary fee because his complaint did not sufficiently allege that he
was the owner of the diseased dog. Respondent further argued that petitioner also did not have
standing to bring his claim for an injunction to prevent the adoption of diseased dogs because, in
making that claim, petitioner was asserting the rights of non-parties. The circuit court accepted
respondent’s argument and instructed respondent’s counsel to prepare an order granting its motion
to dismiss.

        A short time after the conclusion of the December 11, 2012 hearing, petitioner appeared in
the courtroom. According to petitioner, he explained to the court that the November 15, 2012
notice of hearing did not inform him of where the hearing was to occur and, therefore, he was on
the wrong floor of the Kanawha County Judicial Annex at the time of the hearing. Petitioner later
wrote the circuit court an apology for exhibiting boorish behavior when he appeared in the
courtroom on December 11, 2012.

        The circuit court entered its order granting respondent’s motion to dismiss on December
18, 2012. The circuit court noted petitioner’s failure to appear for the December 11, 2012 hearing,
but did not discuss his appearance in the courtroom shortly after the hearing to explain his absence.
The circuit court dismissed petitioner’s complaint because, “[given] the fact that [petitioner] was
not the owner of the dog in question, [petitioner] lack[ed] standing to bring the claim for veterinary
expenses for the dog or for his claim for injunctive relief.” Petitioner now appeals the circuit
court’s December 18, 2012 order.2

       “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de

       2
          Petitioner filed his notice of intent to appeal one day late. Therefore, in its February 20,
2013 scheduling order, this Court directed petitioner to state in writing good cause as to why his
notice of appeal was untimely filed. On February 22, 2013, petitioner explained in writing why his
notice of appeal was untimely. While respondent disputes whether petitioner’s explanation
constitutes good cause, this Court finds that good cause was established. Furthermore, it is a
petitioner’s failure to perfect his appeal, not his failure to file a timely notice of appeal, that
deprives the Court of jurisdiction to hear an appeal. See W.Va. Code § 58-5-4; Rule 5(f),
W.V.R.A.P. In the case at bar, while respondent further alleges that petitioner failed to perfect his
appeal by not filing an appendix, petitioner’s appendix is in the case file. The certificate of service
attached to petitioner’s appendix indicates that a copy of the appendix was hand delivered to
respondent’s counsel, along with a copy of petitioner’s brief, on April 19, 2013. Accordingly,
because petitioner timely perfected his appeal, the Court declines to dismiss petitioner’s appeal.

                                                  2
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995).

        On appeal, petitioner asserts that respondent’s notice of the December 11, 2012 hearing is
insufficient because the notice gave no information as to where the hearing was to occur. Thus,
petitioner argues that the circuit court erred in dismissing his complaint.

        Respondent asserts that its notice of the December 11, 2012 hearing is sufficient. Thus,
once petitioner failed to appear, respondent argues that the circuit court properly proceeded with
the hearing. Respondent states that petitioner addresses the facts of his case even though his sole
assignment of error relates to whether he received proper notice and an opportunity to be heard. If
the facts are considered, respondent avers that petitioner’s complaint did not sufficiently allege
that he was the owner of the diseased dog. Therefore, respondent argues that the circuit court
properly dismissed petitioner’s complaint.3

         Although the circuit court addressed the merits of the case in granting respondent a
dismissal, instead of basing the dismissal on petitioner’s failure to appear, petitioner’s absence
from the December 11, 2012 hearing was significant because a motion to dismiss is disfavored. As
an initial matter, “the complaint must be construed in the light most favorable to the plaintiff, and
its allegations should be considered as true.” McGinnis v. Cayton, 173 W.Va. 102, 104, 312 S.E.2d
765, 768 (1984). In the case at bar, petitioner’s complaint alleged that he paid for the dog’s
adoption and that if petitioner did not pay to have the dog’s Parvo treated, he was faced with losing
both “the purchase price” and “the purchase,” which could be reasonably construed to mean the
animal. Furthermore, “[t]he plaintiff’s burden in resisting a motion to dismiss . . . is a light one.”
See McGinnis, 173 W.Va. at 104, 312 S.E.2d at 768. Petitioner clearly disputes the circuit court’s
finding that he was not the owner of the dog, and if he had been present at the December 11, 2012
hearing, petitioner could have also responded to respondent’s arguments that he did not have
standing to bring his claims.

        Petitioner’s case is analogous to Kailie v. Barlow, No. 101284, 2011 WL 8183121 (W.Va.
Supreme Court, November 10, 2011) (memorandum decision), wherein this Court reversed a
dismissal because of a pro se party’s failure to appear. The reversal was based on the fact that the
pro se litigant, who had to travel long distances to appear for court, had notified the court within
thirty minutes that he was caught in traffic. Similarly, in the instant case, petitioner did not know
the location of the December 11, 2012 hearing, but appeared in the courtroom shortly after the
hearing’s conclusion to explain his absence. Accordingly, after careful consideration, this Court
concludes that the circuit court erred in dismissing petitioner’s complaint without providing him
with an opportunity to be heard on respondent’s motion to dismiss.



       For the foregoing reasons, we reverse the circuit court’s December 18, 2012 order and

       3
         See Fredeking v. Tyler, 224 W.Va. 1, 5, 680 S.E.2d 16, 20 (2009) (it was plaintiff’s
burden to prove she was the owner of the property).
                                                  3
remand this case for a new hearing on respondent’s motion to dismiss once proper notice of the
hearing’s date, time, and location has been given.


                                                                     Reversed and Remanded.

ISSUED: November 12, 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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