No. 17-0796 –         Ben Goldstein and Diane Goldstein, husband and wife v. Peacemaker
                      Properties, LLC, a West Virginia Limited Liability Company, and
                      Peacemaker National Training Center, LLC, a West Virginia Limited
                      Liability Company
                                                                                 FILED
                                                                             March 18, 2019
                                                                                released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




Jenkins, Justice, concurring, in part, and dissenting, in part, joined by Justice Armstead:

       The majority’s opinion in this case correctly finds that the legislative amendments

to W. Va. Code § 61-6-23 apply retroactively to deprive Mr. and Mrs. Goldstein of a claim

for injunctive relief against Peacemaker’s shooting range operations. Additionally, the

opinion also properly determines that the Goldsteins are not entitled to an award of costs

and/or attorney’s fees under Rule 37 of the West Virginia Rules of Civil Procedure because

Peacemaker provided “substantial justification” for its refusal to answer the Goldsteins’

discovery requests and/or its provision of limited information in response thereto.



       However, this is the extent of my agreement with the majority in this case. I do not

agree with the majority’s assessment that the Goldsteins’ complaint sets forth a claim for

money damages sufficient to place Peacemaker on notice and preserve the Goldsteins’

nuisance claim because the only relief the Goldsteins seek in their complaint is injunctive

relief, which, by virtue of the legislative amendments to W. Va. Code § 61-6-23, is no

longer an available remedy against a shooting range under the facts and circumstances of

this case. For this reason, I respectfully dissent.


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                         Complaint Requests Only Injunctive Relief

       Based upon the plain language of the Goldsteins’ complaint, I disagree with the

opinion’s resolution of the notice pleading issue. The majority’s opinion concludes that

the Goldsteins’ complaint included a claim for money damages such that their nuisance

claim was a vested property right that the Legislature could not usurp by making its

amendments to W. Va. Code § 61-6-23 retroactive. While I agree that West Virginia is a

notice pleading jurisdiction, I do not agree that the Goldsteins’ complaint adequately

asserted a claim for money damages insofar as their claim for relief requested injunctive

relief, or, in the alternative, other types of injunctive relief.



       This case involves the application of W. Va. Code § 61-6-23. The operative

statutory language provides:

               No municipal or county ordinance regulating noise may subject a
       shooting range to noise control standards more stringent than those standards
       in effect at the time construction or operation of the shooting range began,
       whichever occurred earlier in time. The operation or use of a shooting range
       may not be enjoined based on noise, nor may any person be subject to an
       action for nuisance or criminal prosecution in any matter relating to noise
       resulting from the operation of a shooting range, if the shooting range 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.

W. Va. Code § 61-6-23(e)(1). The Legislature further expressly made this provision

retroactive. See W. Va. Code § 61-6-23(f) (“It is the intent of the Legislature in enacting

the amendments to this section during the 2017 regular session of the Legislature that the

amendments be applied retroactively.”). At the relevant times referenced in the statute,


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Berkeley County had adopted a noise ordinance, but its provisions specifically exempted

shooting ranges from its operation. The parties disagree as to whether Peacemaker was

“operating in compliance with all ordinances relating to noise” in effect at the relevant

times given that it is exempt therefrom, but the majority astutely recognizes that

Peacemaker, who was not found to have violated the pertinent noise ordinance, was in

compliance therewith.



       Further, as the majority rightly observed, it is clear from the statutory language that

the Goldsteins’ claim for injunctive relief is prohibited by W. Va. Code § 61-6-23(e)(1):

injunctive relief is not a vested property right because it is future or prospective relief, and,

once an injunction is granted, it can be altered or withdrawn if the law that previously

authorized the injunctive relief later is changed to foreclose such remedy. See generally

Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S. Ct. 1483, 1501, 128 L. Ed. 2d

229 (1997) (recognizing that “relief by injunction operates in futuro,” and, thus, party had

no “vested right” in injunctive relief it had been awarded (internal quotations and citations

omitted)).



       Thus, as the majority also correctly noted, the only relief that is potentially available

to the Goldsteins, then, is their claim for nuisance if such claim is a vested property right

insofar as the Legislature cannot retroactively apply a statute to deprive an individual of a

vested property right. See, e.g., Gribben v. Kirk, 197 W. Va. 20, 26, 475 S.E.2d 20, 26

(1996) (noting that Legislature cannot “retroactively change statutes so as to sweep away

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vested property rights” (citations omitted)). To be a vested property right, then, the pivotal

question is whether the Goldsteins’ complaint adequately pled a cause of action for

nuisance and requested monetary damages therefor. It is at this juncture, though, that I

must depart from my brethren. My reading of the complaint suggests that the Goldsteins

requested only injunctive relief therein, which, as noted previously, is not available to them

under the current language of W. Va. Code § 61-6-23.



       Under the notice pleading standard of this State, a claim for money damages must

be apparent from the pleading, which, here, is the complaint. See W. Va. R. Civ. P. 8(a)

(“A pleading which sets forth a claim for relief, whether an original claim, counterclaim,

cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim

showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief

the pleader seeks.” (emphasis added)).

       Indeed, Rule 8 of the Rules of Civil Procedure requires clarity . . . . The
       primary purpose of these provisions is rooted in fair notice. Under Rule 8, a
       complaint must be intelligibly sufficient for a circuit court or an opposing
       party to understand whether a valid claim is alleged and, if so, what it is.

State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d

516, 522 (1995). See also In re Estate of Olson, 2008 S.D. 97, ¶ 20, 757 N.W.2d 219, 225

(2008) (stating that “damages [must] be pled with reasonable certainty” (internal quotations

and citations omitted)). As such, a defendant should not be expected to have to read an

appellate brief to ascertain the precise nature of damages sought in a complaint. Rather,

the complaint, itself, should be sufficient to place the defendant on notice of the damages


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a plaintiff seeks and is required to contain a clear statement of the relief requested. See

generally Rule 8. The Goldsteins’ complaint does just that, but the relief sought in the

complaint is injunctive, not monetary.



       Although the complaint sets forth the law governing nuisance and vaguely

references that Peacemaker, as a result of the operation of its shooting range, “has

substantially and unreasonably interfered with Mr. and Mrs. Goldstein’s private use and

enjoyment of their home property,” Compl. at 9, the complaint stops short of explaining

exactly how the Goldsteins have been injured by Peacemaker’s actions such that their claim

for the aforementioned monetary damages could reasonably be anticipated. Rather, the

injuries they claim to have suffered all speak in terms of injunctive relief by averring that,

       [i]n particular, the Peacemaker National Training Center has substantially
       and unreasonably interfered with Mr. and Mrs. Goldstein’s private use and
       enjoyment of their home property, as well [as] all of its neighboring property
       owners, by: 1) frequently exceeding the published hours of operation which
       it previously acknowledged as reasonable in consideration of its neighbors’
       concerns; and 2) frequently exceeding the noise levels which it previously
       identified as reasonable in consideration of its neighbors’ concerns.

Compl. at 10. These averments are followed by the Goldsteins’ prayer for relief:

                                          RELIEF

              WHEREFORE the Plaintiffs, BEN GOLDSTEIN and DIANE
       GOLDSTEIN, respectfully request this Honorable Court to grant them
       temporary and permanent injunctive relief against the Defendants,
       PEACEMAKER PROPERTIES, LLC, and PEACEMAKER NATIONAL
       TRAINING CENTER, LLC, by imposing specifically enforceable
       guidelines for: 1) hours of operation for the shooting range which may not
       be enlarged under any circumstances (i.e. no shooting before or after those
       hours originally published at any time); and 2) maximum noise levels from
       the shooting range which may not be exceeded under any circumstances.

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       Should the Defendants fail to meet these specific guidelines, the Plaintiffs
       respectfully request this Honorable Court to grant them temporary and
       permanent injunctive relief against the Defendants by requiring the
       Defendants to implement reasonable and economically feasible noise
       abatement measures on their own property with the objective of meeting
       these guidelines. Should the Defendants still fail to meet these specific
       guidelines, the Plaintiffs respectfully request this Honorable Court to award
       monetary damages for the cost of implementing reasonable and necessary
       noise abatement measures on their own property to comply with these
       guidelines and any other damages permitted by West Virginia law and
       supported by the evidence. Finally, the Plaintiffs respectfully request this
       Honorable Court to grant then [sic] such other legal and equitable relief as
       the Court shall deem just and proper under the circumstances.

Compl. at 10-11 (italicized emphasis added).



       Therefore, the relief requested by the Goldsteins in their complaint specifically

requests “temporary and permanent injunctive relief” and the imposition of guidelines

regarding the operating hours of the shooting range and the maximum noise levels of the

shooting range. Compl. at 10. Alternatively, if Peacemaker fails to comply with such

guidelines, the Goldsteins request Peacemaker to implement noise abatement measures on

its property, and, only if Peacemaker fails to meet those guidelines, the Goldsteins then

request the “award [of] monetary damages for the cost of implementing reasonable and

necessary noise abatement measures on their property to comply with these guidelines.”

Compl. at 10. Although the Goldsteins further request “other damages” permitted by law

and “other legal and equitable relief” deemed just by the court, neither of these provisions

put the defendants on notice as to a claim for monetary damages for nuisance given that

the injuries claimed and damages requested in the complaint refer to injunctive relief.



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       In their appellate brief to this Court, the Goldsteins finally state that they also are

asserting a claim for “monetary damages (i.e. diminution in value and annoyance and

inconvenience) caused by Peacemaker’s nuisance.” Pet. Br. at 42. Not only is this

revelation in the wrong pleading, the pleading in which it should have been stated, i.e., the

complaint, does not set forth grounds to support this alleged request for money damages

with sufficient specificity to preserve the Goldsteins’ claim for money damages in their

nuisance action against Peacemaker.



                      Insufficiently Pled Claim for Money Damages

       Assuming arguendo that the Goldsteins’ complaint asserted a claim for money

damages as determined by the majority, the Goldsteins still are not entitled to pursue their

nuisance claim because they did not sufficiently plead their claim for monetary relief.

       In this regard, the Goldsteins argue that their general request for “such other legal

and equitable relief as the Court shall deem just and proper under the circumstances”

suffices as a claim for money damages insofar as legal relief signifies monetary relief.

Compl. at 11. Be that as it may, such a general request is not sufficient to constitute a claim

for money damages. See Grode v. Mut. Fire, Marine, & Inland Ins. Co., 154 Pa. Cmwlth.

366, 374, 623 A.2d 933, 937 (1993) (concluding that request for “‘additional damages’”

did “not sufficiently set forth the type of damages [sought] and the legal basis for those

damages”).




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       Furthermore, even if the Goldsteins’ complaint could be construed as requesting the

monetary damages that they reference in their brief to this Court, i.e., diminution in value,

annoyance, and inconvenience, these damages also have not been properly pled in the

complaint to afford the Goldsteins a claim for relief in nuisance. In this regard, a claim for

diminution of value requires a loss in value that the plaintiff’s property has sustained as a

result of the defendant’s allegedly wrongful conduct. See Allgood Rd. United Methodist

Church, Inc. v. Smith, 173 Ga. App. 28, 29, 325 S.E.2d 392, 394 (1984) (“The general rule

for the measure of damages involving real property is the diminution of the fair market

value of the property and/or the cost of repair or restoration.”). See also LaSalle Nat’l Bank

v. Willis, 378 Ill. App. 3d 307, 330, 880 N.E.2d 1075, 1093 (2007) (“[W]hen a landowner

has shown that he suffered a compensable injury, it is necessary to examine the exact

interest harmed.” (citation omitted)). Here, the Goldsteins do not set forth any such

allegations as to the reduction in their property’s value that they attribute to Peacemaker’s

lawful operation of its shooting range, alleging only that Peacemaker’s actions have

“substantially and unreasonably interfered with Mr. and Mrs. Goldstein’s private use and

enjoyment of their home property.” Compl. at 9, 10.



       Additionally, in the context of nuisance, damages other than those for diminution of

value, such as annoyance and inconvenience as claimed herein, have been determined to

be special damages, which must be specially pled pursuant to Rule 9 of the West Virginia

Rules of Civil Procedure. “[T]he general measure of damages for a temporary nuisance

[is]: the diminution in the rental value of the property caused by the nuisance, plus any

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special damages. Special damages include the personal inconvenience, annoyance, and

discomfort caused by the existence of a nuisance.” Miller v. Rohling, 720 N.W.2d 562,

569 (Iowa 2006) (emphasis added; internal quotations and citations omitted). Accord

Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 185 (Iowa 2004) (concluding that if the

subject facility “will be operated indefinitely as a nuisance, the court should award special

damages supported by the evidence, past and future, as well as any decreased value of the

plaintiffs’ property proved by them” and that “[s]hould the evidence show the defendant

will abate the nuisance, the plaintiffs’ recovery would be limited to their special damages

up to the time of abatement and any diminution in the rental value of their property while

the nuisance exists”); Pettengill v. Turo, 159 Me. 350, 357, 193 A.2d 367, 372 (1963) (“The

measure of damages to be applied in cases of temporary nuisance injury to real estate,

supported by reason and authority, is that the injured land-owner is entitled to be

compensated for the depreciation in the rental or useable value of the property caused by

the nuisance . . . during the continuance of the injury, together with such special damage

(including permanent injury to land) as may be proved.” (citations omitted)). See also W.

Va. R. Civ. P. 9(g) (“When items of special damage are claimed, they shall be specifically

stated.” (emphasis added)); Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App.

650, 672-73, 464 S.E.2d 47, 63 (1995) (observing that “special damages must be pleaded,

and the facts giving rise to the special damages must be alleged so as to fairly inform the

defendant of the scope of plaintiff’s demand” (internal quotations and citations omitted)).

Again, however, the Goldsteins’ complaint falls short because it fails to set forth such

claims at all, much less with specificity.

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       Contrary to the conclusion reached by the majority, the complaint at issue herein

simply does not provide sufficient notice of a claim for monetary relief to alert the

defendants as to the nature of damages requested, particularly when the specific damages

requested therein are couched in terms of injunctive relief. Accordingly, I would affirm

Judge Wilkes’ decision in this regard because the Goldsteins have not pled a claim for

money damages for nuisance and thus do not have a vested property right that survives the

legislative amendments to W. Va. Code § 61-6-23. For these reasons, I respectfully concur,

in part, and dissent, in part. I am authorized to state that Justice Armstead joins in this

separate opinion.




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