F.S.T., Inc. d/b/a Tiffany's Dolls Cabaret v. Hancock Co. Commission ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
F.S.T., Inc. d/b/a
Tiffany’s Dolls Cabaret,
FILED
Petitioner Below, Petitioner October 20, 2017
RORY L. PERRY II, CLERK
vs) No. 17-0016 (Hancock County 16-P-38) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Hancock County Commission,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner F.S.T., Inc. d/b/a Tiffany’s Dolls Cabaret, by counsel Joseph L. Ludovici and
Ian T. Masters, appeals the order of the Circuit Court of Hancock County, entered on November
9, 2016, granting respondent’s motion to quash writs and dismiss petitioner’s appeal. Respondent
Hancock County Commission appears by counsel Michael W. Lucas, III.
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, dismissal of the appeal is appropriate under Rule 31(b) of the Rules of Appellate
Procedure.
This appeal centers on petitioner’s challenge to respondent’s “Adults Only Establishment
Location Ordinance” (“the ordinance”), enacted in 2004, insofar as the ordinance provides that a
business such as petitioner’s is “abandoned” when
the use with respect to a Premises, regardless of the intent of the user, has ceased
or has discontinued for a period of more than sixty (60) consecutive days, or
[there is] an explicit declaration by the user of a Premises that it has created a use
with respect to the premises that is non-conforming with the Ordinance.
Petitioner, an “adult entertainment establishment,” closed its doors in compliance with a
West Virginia Alcohol Beverage Control Administration-ordered “cooling off” period in
September of 2015, and its principal subsequently relinquished his license to serve alcohol. The
business apparently remains dormant. Petitioner’s counsel contacted the Hancock County
Prosecuting Attorney’s Office in April of 2016, and expressed petitioner’s interest in reopening.
An assistant prosecuting attorney informed petitioner’s counsel that the business likely would be
deemed abandoned under the ordinance, but the assistant prosecuting attorney also explained that
he was not offering “the county’s official position” and that petitioner should seek a formal
determination from respondent.
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Petitioner did not pursue the avenue suggested by the assistant prosecuting attorney.
Instead, it filed its “Writ of Certiorari[,] Writ of Error[,] Appeal[, and] Writ of Prohibition”1 with
the Circuit Court of Hancock County, ostensibly requesting that the circuit court declare the
ordinance invalid because the county failed to establish a board of zoning appeals within the
meaning of West Virginia Code 8A-8-1.2 However, petitioner asked specifically that the court
1
We denounce such careless pleading. Though our jurisprudence leads our courts to
construe a complaint in the light most favorable to the plaintiff,
liberalization in the rules of pleading in civil cases does not justify a carelessly
drafted or baseless pleading. As stated in Lugar and Silverstein, West Virginia
Rules of Civil Procedure (1960) at 75: “Simplicity and informality of pleading do
not permit carelessness and sloth: the plaintiff’s attorney must know every
essential element of his cause of action and must state it in the complaint.”
Sticklen v. Kittle, 168 W.Va. 147, 164, 287 S.E.2d 148, 157–58 (1981). The style of petitioner’s
pleading threw into the judicial soup pot numerous possibilities—specifically, “appeal” or writs
of certiorari, error, or prohibition—leaving the circuit court to ladle out what it would.
Petitioner’s pleading invoked four methods of review. We have distinguished three as
follows:
The term “appeal” was unknown to the common law. It belonged wholly
to courts of chancery, and means in its technical and appropriate sense the
removal of a suit, and its final determination, from an inferior court, after final
judgment in that court, to a superior court, and placing the case in the latter court,
to be again tried de novo upon its merits, just as though it had never been tried in
the inferior court. . . . The common-law mode of reviewing the judgments of
inferior courts was by the writs of audita querela, error, and certiorari. The writ of
error was used to review the judgments of courts of record, while the writ of
certiorari was employed to review judgments of inferior jurisdictions, or courts
not of record, or where the court acts in a summary mode, or in a new course
different from the common law. . . .
Fouse v. Vandervort, 30 W.Va. 327, 331, 4 S.E. 298, 301 (1887)(citations omitted), overruled in
part by Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653 (1900). Petitions for appeal and
writs of error or certiorari are employed in seeking review of the decisions of inferior courts.
Inasmuch as there was no inferior court decision from which to seek relief, petitioner was not
entitled to such relief. We thus consider the pleading a petition for extraordinary relief, as the
circuit court did. More specifically, inasmuch as petitioner partially titled the pleading as a “writ
of prohibition,” we understand that he was petitioning for such.
2
“issue an [o]rder prohibiting the Hancock County Commissioners from prohibiting [petitioner]
from operating the establishment in the same manner as it had been previously operated” as well
as an order “permitting [petitioner] to operate [its] business in accordance to their prior
established business model and activities. . . .” Based on this specific request for relief, as well as
petitioner’s styling, we consider the pleading filed with the circuit court a petition for
extraordinary relief. See n. 1.
Respondent moved the circuit court to quash petitioner’s writs and dismiss the appeal, on
the ground that respondent had taken no action with regard to petitioner’s business and the
parties thus had no controversy. The circuit court granted that motion, finding in pertinent part
that petitioner failed to support its petition for extraordinary relief under the rubric of State ex
rel. Parsons v. Zakaib, 207 W.Va. 385, 532 S.E.2d 654 (2000), because there was no evidence
that petitioner had filed an application with respondent. The circuit court also found that
respondent was not required to establish a zoning board of appeals because the ordinance at issue
pre-dated the enactment of West Virginia Code 8A-8-1. The circuit court noted that respondent
provided an appeal directly to it, so petitioner would not be without recourse were its application
denied.
On appeal, petitioner asserts three assignments of error: (1) that the circuit court erred in
its application of law (arguing, essentially, that the circuit court wrongly found that petitioner
failed to exhaust administrative remedies); (2) that respondent is required to create a zoning
board of appeals pursuant to West Virginia Code § 8A-8-1, and the circuit court incorrectly
found otherwise; and (3) that the circuit court erred in its application of Parsons. We decline to
address these assignments of error for lack of ripeness, which leaves us without subject matter
jurisdiction over petitioner’s claims. “Subject matter jurisdiction does not exist over claims that
are not ripe for adjudication.” Syl. Pt. 3, State ex rel. Universal Underwriters Ins. Co. v. Wilson,
239 W.Va. 338, 801 S.E.2d 216, 218 (2017). “‘This Court, on its own motion, will take notice of
lack of jurisdiction at any time or at any stage of the litigation pending therein.’ Syl. Pt. 2, In re
Boggs’ Estate, 135 W.Va. 288, 63 S.E.2d 497 (1951).” Id. at ___, 801 S.E.2d 216, 218.
Petitioner has neither made application with respondent and been refused, nor attempted
to reopen its business and been impeded. The appendix record on appeal is devoid of any action
taken by respondent to frustrate petitioner’s purpose. As we explained in State ex rel. Morrisey v.
W. Virginia Office of Disciplinary Counsel, 234 W. Va. 238, 246, 764 S.E.2d 769, 777 (2014),
wherein we discussed the related doctrine of standing, the relief sought by petitioner would result
in our “issuing an advisory opinion . . . to a situation that has not occurred.” We wrote:
The writ of prohibition is not designed to accord relief to a person who
merely receives a requested advisory opinion with which he or she disagrees. The
writ of prohibition is not a revolving door. See Woodall v. Laurita, 156 W.Va.
2Neither the style nor the body of the complaint referenced the Declaratory Judgment
Act, West Virginia Code Code §§ 55-13-1 to -16, which “is designed to enable litigants to clarify
legal rights and obligations before acting upon them.” Cox v. Amick, 195 W.Va. 608, 618, 466
S.E.2d 459, 469 (Cleckley, J., concurring).
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707, 713, 195 S.E.2d 717, 721 (1973) (“The piecemeal challenge of discretionary
rulings through writs of prohibition does not facilitate the orderly administration
of justice.”). “[T]he right to prohibition must be clearly shown before a petitioner
is entitled to this extraordinary remedy.” Norfolk S. Ry. Co. v. Maynard, 190
W.Va. 113, 120, 437 S.E.2d 277, 284 (1993). See also State ex rel. Kees v.
Sanders, 192 W.Va. 602, 606, 453 S.E.2d 436, 440 (1994) (“The petitioner’s right
to the extraordinary remedy of prohibition must clearly appear before he is
entitled to such remedy.”) . . . .
It is a deeply rooted and fundamental law that “this Court is not authorized
to issue advisory opinions[.]” State ex rel. City of Charleston v. Coghill, 156
W.Va. 877, 891, 207 S.E.2d 113, 122 (1973) (Haden, J., dissenting). In this
regard, we observed in Harshbarger v. Gainer, 184 W.Va. 656, 659, 403 S.E.2d
399, 402 (1991), that “[s]ince President Washington, in 1793, sought and was
refused legal advice from the Justices of the United States Supreme Court,
courts—state and federal—have continuously maintained that they will not give
‘advisory opinions.’” Moreover, in United Fuel Gas Co. v. Public Service
Commission, 73 W.Va. 571, 578, 80 S.E. 931, 934 (1914), we noted that “[b]y the
plain terms of the Constitution appellate jurisdiction is limited to controversies
arising in judicial proceedings[.]” This Court further addressed the issue of
advisory opinions in Mainella v. Board of Trustees of Policemen’s Pension or
Relief Fund of City of Fairmont, 126 W.Va. 183, 185–86, 27 S.E.2d 486, 487–88
(1943), as follows:
Courts are not constituted for the purpose of making
advisory decrees or resolving academic disputes. The pleadings
and evidence must present a claim of legal right asserted by one
party and denied by the other before jurisdiction of a suit may be
taken.
Consistent with our general rule, it is obvious that “the writ of prohibition
cannot be invoked[ ] to secure from th[is] Court . . . an advisory opinion[.]”
Barnett v. Brett, 401 P.2d 532, 534 (Okla.Crim.App.1965). See also State ex rel.
ACF Indus., Inc. v. Vieweg, 204 W.Va. 525, 533 n. 13, 514 S.E.2d 176, 184 n. 13
(1999) (declining writ of prohibition as seeking advisory opinion).
Id. at 245-46, 764 S.E.2d 769, 776-77.
For the foregoing reasons, we dismiss the appeal.
Dismissed.
ISSUED: October 20, 2017
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CONCURRED IN BY:
Chief Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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