Court affirms seizure of Randolph couple's dog

By Lawrence Smith | Nov 1, 2013

CHARLESTON - The state Supreme Court has upheld a Randolph County judge’s decision dismissing a couple’s lawsuit against the county commission, its dog warden, the local humane society and a national pet store retail chain that they allege conspired to steal and sell their dog.

The court affirmed an order entered last year by Judge Jaymie Godwin Wilfong not only dismissing the Randolph County Commission, PetSmart and PetSmart Charities, Inc., but also granting summary judgment to Jim Cain, the county dog warden, and the Randolph County Humane Shelter and its president Maria Kostankos and manager Kelly Scheidegger in a suit filed by Verda B. and Charles E. Wiseman.

In a memorandum opinion issued Oct. 18, a unanimous court agreed Wilfong was correct in finding that the Wisemans failed to prove any of the defendants acted unlawfully or inappropriately in how their Boxer-mix Nikki was seized and later adopted.

Memorandum opinions are issued by the court in cases that present no new issues of law, and would not be aided by oral arguments.

According to court records, Cain on Feb. 3, 2012 received a call from an unidentified elderly man that two dogs were running at large in his neighborhood. The man claimed after jumping on he and his wife, Nikki defecated in his yard.

If Cain did not seize Nikki, the man said he “would take care of the issue with his rifle.” At an unspecified time, Cain found Nikki at the home of one of Wiseman’s neighbors and impounded her over the neighbor’s objections.

According to the Wisemans, Nikki would visit the neighbor, who is not identified in court records, on a daily basis and would receive treats.

After Nikki’s impoundment, the Wisemans began in earnest to get her released. Upon arriving at the shelter, they claim Cain gave them a hostile reception in which he told them they faced three misdemeanor charges of failing to pay a dog tax, failing to obtain a rabies vaccine and allowing a dog to run at large.

They could leave without Nikki and not be arrested, Cain said, or pay a $600 fine, and take her home.

Over the next several days, the Wisemans attempted to have either their daughter or the neighbor adopt Nikki. However, they claim the shelter staff and Cain lied about either the adoption policies or Nikki’s availability.

According to court records, when Nikki was not claimed after five days she was legally adopted. In their suit, the Wisemans claim the adoption process in Randolph County was part of conspiracy by the commission, RCHS and PetSmart to take animals from the state “to geographical areas of greater economic prosperity, and then sold under the guise of rescuing an animal.”

In their suit, the Wisemans admitted to having Nikki vaccinated for rabies, but failing to pay the dog tax. Also, they aver she had a monetary value of $500.

Following a hearing on Aug. 24, 2012, Wilfong on Oct. 1 granted motions made by the commission and PetSmart and its related charitable organizations to dismiss them from the suit on the grounds the Wisemans failed to make a valid claim against them. Also, Wilfong granted Cain’s motion for summary judgment on the grounds he was immune from liability since he acted within the scope of his authority.

Three weeks later, Wilfong dismissed RCHS, Kostankos, and Scheidegger after the Wisemans conceded they were entitled to summary judgment as a matter of law.

In affirming Wilfong’s decision, the court said the Wisemans failed to make a convincing case why they should overturn her rulings particularly against Cain. Regardless if his attitude was less than professional and he was less than honest, state law is clear that dog wardens are empowered to seize and impound any dog six months or older not wearing a valid registration tag.

“[Nikki] was not wearing a registration tag when the dog warden seized her and she was nine years old,” the court said. “Further the dog warden impounded the dog at the Humane Society and gave [the Wisemans] actual notice when he met with them on the day the dog was seized.”

“Finally,” the court added, “[the Wisemans] did not claim their dog within the five day holding period. Hence, the circuit court did not err in find the dog warden complied with his statutory duties in seizing and impounding [the Wisemans'] dog.”

West Virginia Supreme Court of Appeals, case number 12-1312
Randolph Circuit Court, case number 12-C-61

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