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Petitioner's Brief, Ben and Diane Goldstein V

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Petitioner's Brief, Ben and Diane Goldstein V IN THE SUPREME COURT OF APPEALS OF WEST VIRGI~1A BEN GOLDSTEIN and DIANE GOLDSTEIN, ~ra-n~"'EC-;~;-2"'2D"-!!!'~!!!!'I~-v- husband and wife, Plaintiffs Below/Petitioners, CASE NO. 17-0796 v. (Berkeley Co. Civil Action No. 15-C-520) PEACEMAKER PROPERTIES, LLC, a West Virginia Limited Liability Company, and PEACEMAKER NATIONAL TRAINING CENTER, LLC, a West Virginia Limited Liability Company, Defendants Below/Respondents. PETITIONERS' BRIEF Appeal Arising from Orders Entered on August 9, 2017 and August 11,2017 in Civil Action No. 15-C-520 in the Circuit Court ofBerkeley County, West Virginia Joseph L. Caltrider WVSB#6870 BOWLES RICE LLP Post Office Drawer 1419 Martinsburg, West Virginia 25402-1419 (304) 264-4214 [email protected] Counselfor the Petitioners TABLE OF CONTENTS ASSIGNMENTS OF ERROR .........................................................................................................1 STATEl\1ENT OF THE CASE ........................................................................................................ 1 I. STATEMENT OF FACTS ...................................................................................... 1 II. DISCOVERY DISPUTE .........................................................................................9 III. REMAINING PROCEDURAL HISTORy........................................................... 14 SUMMARY OF ARGUMENT .....................................................................................................23 STATEl\1ENT REGARDING ORAL ARGUMENT AND DECISION ......................................27 ARGUMENT .................................................................................................................................28 I. STANDARD OF REVIEW ...................................................................................28 II. THE CIRCUIT COUR T ERRED BY GRANTING PEACEMAKER SUMMARY JUDGl\1ENT BECAUSE THE WEST VIRGINIA LEGISLATURE DID NOT INTEND WEST VIRGINIA CODE § 61-2-23, AS AMENDED, TO ELIMINATE ALL OF A WEST VIRGINIA PROPERTY OWNER'S PROTECTIONS AND REl\1EDIES AGAINST AN IRRESPONSIBLE SHOOTING RANGE OPERATOR. ......................................29 A. The Circuit Court Erroneously Determined That West Virginia Code § 61-2-23, as Amended, "Retroactively Prohibits Nuisance Actions Against Shooting Ranges." ...........................29 B. The Circuit Court Erroneously Expanded West Virginia Code § 61-2-23, as Amended, to Eliminate All Protections for West Virginia Property Owners Against Irresponsible Shooting Range Operators .........................................................................30 C. The Circuit Court Erroneously Determined That West Virginia Code § 61-2-23, as Amended, "Allows Counties to Impose Whatever Noise Restrictions it Desires, but Protects Gun Ranges from Nuisance Actions If the Gun Ranges Are Operating in a Manner 'Consistent With' the Local Noise Ordinance Imposed." .................................................................................31 III. THE CIRCUIT COURT ERRED BY GRANTING PEACEMAKER SUMMARY JUDGMENT BECAUSE THE WEST VIRGINIA LEGISLATURE DID NOT INTEND WEST VIRGINIA CODE § 61-2-23, AS AMENDED, TO IMMUNIZE AN IRRESPONSIBLE SHOOTING RANGE OPERATOR FROM WEST VIRGINIA'S COMMON LAW OF NUISANCE WHEN THAT SHOOTING RANGE OPERATOR IS EXEMPT FROM A COUNTY NOISE ORDINANCE .......................................................................... 33 A. Peacemaker Is Not "in Compliance With" the Berkeley County Noise Ordinance by Being Exempt From the Ordinance ................................................................................................... 33 B. At Least Two Courts Have Rejected Peacemaker's Argument That it Is "in Compliance With" the Berkeley County Noise Ordinance by Being Exempt from the Ordinance ................................................................................................... 35 IV. THE CIRCUIT COURT ERRED BY GRANTING PEACEMAKER SUMMARY JUDGMENT BECAUSE WHETHER PEACEMAKER IS "IN COMPLIANCE WITH" THE BERKELEY COUNTY NOISE ORDINANCE STANDARDS IS A QUESTION OF FACT TO BE DETERMINED AT TRIAL.................................................................................. 39 V. THE CIRCUIT COURT ERRED BY GRANTING PEACEMAKER SUMMARY JUDGMENT BECAUSE, IF WEST VIRGINIA CODE § 61-2-23, AS AMENDED, IS APPLIED RETROACTIVELY, THE PETITIONERS WILL BE UNCONSTITUTIONALLY DEPRIVED OF VESTED PROPERTY RIGHTS, DENIED ACCESS TO THE COURTS OF THIS STATE, AND DENIED A CERTAIN REMEDY ...................................... .40 VI. THE CIRCUIT COURT ERRED BY REVERSING ITS PRIOR SANCTIONS ORDER AND DENYING THE PETITIONERS' FEE PETITION AND MOTION FOR ADDITIONAL SANCTIONS BECAUSE RULE 37(a)(4)(A) MANDATES SANCTIONS AND THE CIRCUMSTANCES OF THIS CASE WARRANT SANCTIONS .................................................................................... 44 A. The Circuit Court Applied the Wrong Legal Standard to Deny Mr. and Mrs. Goldstein Attorney Fees and Costs as a Discovery Sanction Against Peacemaker ................................................. .45 B. The Circuit Court Failed to Identify Any "Substantial Justification" for Peacemaker's Discovery Misconduct. .......................... .45 11 C. The Circuit Court Abused its Discretion, Made Clearly Erroneous Findings, and Overlooked Obvious Discovery Abuses to Deny Mr. and Mrs. Goldstein's Fee Petition and Motion for Additional Sanctions .............................................................. .46 CONCLUSION .............................................................................................................................. 57 111 TABLE OF AUTHORITIES Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573,466 S.E.2d 424 (1995) ........................................................................... 34 Beto v. Stewart, 213 W. Va. 355, 582 S.E.2d 802 (2003) ........................................................................... 29 Brown ex reI. Brown v. Genesis Hea1thcare Corp., 228 W. Va. 646, 724 S.E.2d 250 (2011) ........................................................................... 43 Cox v. State, 194 W. Va. 210, 460 S.E.2d 25 (1995) ....................................................................... 29,56 Daily Gazette Co. v. W. Virginia Dey. Office, 206 W. Va. 51,521 S.E.2d 543 (1999) ....................................................................... 28,29 Gibbes Y. Zimmerman, 290 U.S. 326, 54 S. Ct. 140, 78 L.Ed. 342 (1933) ............................................................ 41 Gibson v. W. Virginia Dep't of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991) ........................................................................... 41 Gray v. Barnhart, 144 Pa. Cmwlth. 474, 601 A. 2d 924 (1992) .................................................................... 35 Gribben Y. Kirk, 197 W. Va. 20,475 S.E.2d 20 (1996) ............................................................................... 42 Hall v. Bd. ofEduc. ofCty. ofMingo, 208 W. Va. 534, 541 S.E.2d 624 (2000) ........................................................................... 30 Hendricks Y. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989) ............................................................................. 30 Hughes v. Washington. 389 U.S. 290, 88 S. Ct. 438, 19 L.Ed.2d 530 (1967) ........................................................ 43 Kay v. McGuirewoods, LLP, No. 15-0606,2017 WL 5353917 ................................................................................ 28, 39 Konidaris Y. PortnoffLaw Assocs., Ltd., 598 Pa. 55,953 A.2d 1231 (2008) .................................................................................... 41 Landgrafy. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229,253 (1994) .................................... 40,42 IV Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 132 S. Ct. 1201, 182 L. Ed. 2d 42 (2012) .................................................. 43 Martinez v. Asplundh Tree Expert Co., _ W. Va. _,803 S.E.2d 582 (2017) ........................................................................... 40 Neal v. Marion, 222 W. Va. 380, 664 S.E.2d 721 (2008) ........................................................................... 41 Painter v. Peavy, 192 W. Va. 189,451 S.E.2d 755 (1994) ........................................................................... 28 Pioneer Boat Line v. Board ofCommissioners, 258 U.S. 338,42 S.Ct. 325, 66 L.Ed. 647 (1922) ............................................................. 42 State v. Kerns, 183 W. Va. 130,394 S.E.2d 532 (1990) ........................................................................... 30 Subcarrier Commc'ns, Inc. v. Nield, 218 W. Va. 292, 624 S.E.2d 729 (2005) ........................................................................... 34 Van Emmerik v. Janklow, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 285 (1982) ..................................................... 42 Waters Landing Limited Partnership v. Montgomery County, 337 Md. 15,650 A.2d 712 (Ct. App.1994) ....................................................................... 42 Yates v. Kemp, 979 N.E.2d 678 (Ind. Ct. App. 2012) .......................................................................... 36,37 Statutes 35 P.S. § 4501 ............................................................................................................................... 35 35 P.S. § 4502 ............................................................................................................................... 36 Indiana Code § 14-22-31.5-6
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