Miner v. W.Va. Racing Comm'n, No. 18-1081

• Decision Date: 23 March 2020
• Docket Number: No. 18-1081
• Court: West Virginia Supreme Court
• Parties: Dean Miner, Plaintiff Below, Petitioner v. The West Virginia Racing Commission, Ralph T. Hrehm, personally and in his capacity as Judge for the West Virginia Racing Commission, Manuel Vidis, personally and in his capacity as Judge for the West Virginia Racing Commission, Holly O'Hara, personally and in her capacity as Judge for the West Virginia Racing Commission, and Lori Bohenko D.V.M, personally and in her capacity as Racing Commission Veterinarian for the West Virginia Racing Commission, Defendants Below, Respondents

Dean Miner, Plaintiff Below, Petitioner v. The West Virginia Racing Commission, Ralph T. Hrehm, personally and in hiscapacity as Judge for the West Virginia Racing Commission, Manuel Vidis,personally and in his capacity as Judge for the West Virginia Racing Commission,Holly O'Hara, personally and in her capacity as Judge for theWest Virginia Racing Commission, and Lori Bohenko D.V.M, personally and inher capacity as Racing Commission Veterinarian for the West Virginia Racing Commission,Defendants Below, Respondents

No. 18-1081

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 23, 2020

(Ohio County 15-C-222)

MEMORANDUM DECISION

Petitioner Dean Miner, by counsel Scott E. Brown, appeals the Circuit Court of Ohio County's November 8, 2018, order granting summary judgment to respondents based on quasi-judicial and/or qualified immunity. Respondents the West Virginia Racing Commission ("Commission"), Ralph T. Hrehm, personally and in his capacity as Judge for the West Virginia Racing Commission, Manuel Vidis, personally and in his capacity as Judge for the West Virginia Racing Commission, Holly O'Harra, personally and in her capacity as Judge of the West Virginia Racing Commission, and Lori Bohenko, D.V.M., personally and in her capacity as Racing Commission Veterinarian for the West Virginia Racing Commission, by counsel Christopher C. Ross, submitted a response.

The Court has considered the parties' briefs and 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, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner Dean Miner is an owner and breeder of greyhound dogs at Wheeling Island Hotel, Casino & Racetrack. On May 9, 2012, twelve dogs petitioner co-owned were brought to the track from another state for entry into the kennel compound. Six of the dogs had no health certificates, and six had expired health certificates. Respondent Lori Bohenko, D.V.M., reported the lack of certificates to the respondent judges as an infraction of the Rules of Greyhound Racing per 178 C.S.R. § 2-1. On June 19, 2012, the respondent judges held a hearing, which included the presentation of testimony and other evidence. They ultimately issued a ruling ("Ruling #17"), finding that petitioner was in violation of Greyhound Racing Rule § 178-2-52.1, and fined him $500. On August 27, 2012, petitioner filed a timely appeal of that ruling. In August of 2014, an Assistant Attorney General, on behalf of respondents, and then-counsel for petitioner reached a settlement of the appeal, under which the Board of Judges agreed to vacate Ruling #17 and petitioner agreed to deem his appeal moot, requiring no further action on the part of respondents. On September 30, 2014, an order rescinding Ruling #17 was entered by the Racing Commissioner, and petitioner was reimbursed the $500 fine.

On August 14, 2015, petitioner filed a complaint against respondents, personally and in their respective capacities with the Commission, alleging violation of due process, malicious prosecution, interference with business relationships, defamation, and extreme and outrageous conduct, in addition to requesting punitive damages. Respondents filed a motion for summary judgment on March 22, 2017, and the circuit court entered a May 5, 2017, order dismissing petitioner's due process claims. However, it denied respondents' motion on the issue of subject matter jurisdiction as to the remaining counts. It also denied respondents' motion on the issue of petitioner's claims being time-barred by the statute of limitations and deferred respondents' motion on the issues of both quasi-judicial and qualified immunity until the completion of discovery. Petitioner did not appeal from that order.

Following the completion of discovery, respondents filed a renewed motion for summary judgment on October 9, 2018, which was granted by the circuit court by order entered on November 8, 2018.¹ In that order, the circuit court stated that

the only issue for [it] to determine on quasi-judicial immunity is whether, from the totality of the evidence presented, there are any genuine issues of material fact for a rational trier of fact to determine on whether the [respondent j]udges, in issuing Ruling #17, acted maliciously and 'transcended the limits of their authority' and were not acting within the scope of their duties, authority, and/or employment with the Racing Commission[.] See [sic] Riffe v. Armstrong, 197 W. Va. 626, 641, 477 S.E.2d 535, 550 (1996)[.]

The circuit court also found that in his response to respondents' original motion for summary judgment petitioner agreed that the respondent judges were acting within their official judicial capacity at the time they issued Ruling #17. It further found that while petitioner may not like the result or the process which led to the result, the respondent judges were acting within the bounds of their roles as enunciated in the West Virginia Code of State Rules.

In that order, the circuit court determined that the respondent judges are employed by the Commission to oversee all races. The circuit court then set forth some of the judges' duties pursuant to 178 C.S.R. § 2-9. The circuit court also found that respondent Dr. Bohenko, as the Commission veterinarian, is required to determine that greyhounds are in condition to race and, if she finds they are not, she shall immediately notify the judges.

The circuit court order provides that petitioner argues that respondents were malicious and selectively prosecuted him because

the Rules and Regulations of Greyhound Racing do not specify who is responsible for providing the health certificates; greyhound farmer Rod Boatright took full responsibility for the error in the health certifies [sic] of the dogs; no owner had ever been held responsible for providing health certificates; the [respondent j]udges did not conduct an investigation to [petitioner's] satisfaction; the [respondent j]udges had made up their minds prior to the hearing; [respondent] Bohenko participated in the proceedings as an official and as a witness; and that [respondents] were unfair to [petitioner].

The circuit court, however, found that all of those complaints fall squarely within the realm of the judicial discretion of the respondent judges as provided under the laws and regulations of West Virginia cited in the circuit court's order.

Further, the circuit court found that petitioner had failed to produce sufficient evidence that the respondent judges exceeded their official authority. In support of that finding, the circuit court quoted petitioner's liability expert on the greyhound racing industry, Michael J. Fynmore, who testified that he was not "aware of anything improper or beyond the duties of the track vet that Dr. Bohenko did in this matter[.]" He gave the same response regarding anything improper or beyond the judges' roles. Agreeing with respondents, the circuit court noted that "being treated unfairly isn't enough[, petitioner] must show that [respondents] acted in such a way as to transcend the limits and bounds of their authority, and such factual support does not exist in [this] case."

Finally, the circuit court found that respondents are entitled to qualified immunity. The circuit court determined that, according to the facts before it, petitioner had not produced genuine issues of material fact that could lead a jury to conclude that respondents did not act in compliance with the authority granted to them by the Greyhound Racing Rules and the complaint does not allege that the rules violated any clearly established statutory or constitutional rights or laws of which a reasonable person would have known. "Accordingly, had th[e circuit court] not granted [respondents'] Renewed Motion on grounds of quasi-judicial immunity, it would have granted the same on grounds of qualified immunity."

Upon concluding that respondents are entitled to quasi-judicial and/or qualified immunity from all of petitioner's claims, the circuit court granted respondents' renewed motion for summary judgment and dismissed petitioner's complaint with prejudice. The court also determined that it need not address respondents' remaining arguments, such as whether petitioner's claims are barred by a prior settlement agreement, as the same is moot in light of the court's ruling. Petitioner appeals from that November 8, 2018, summary judgment order.²

This Court has long held that "'[a] circuit court's entry of summary judgment is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994)." City of Morgantown v. Nuzum Trucking Co., 237 W. Va. 226, 230, 786 S.E.2d 486, 490 (2016). Further, we have found as follows:

"If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syllabus point 3, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

Syl. Pt. 2, Andrews v. Antero Res., 241 W. Va. 796, 828 S.E.2d 858 (2019). We have additionally stated that

"the party opposing summary judgment must satisfy the burden of proof by offering more than a mere 'scintilla of evidence,' and must produce evidence sufficient for a reasonable jury to find in a nonmoving party's favor." Painter v. Peavy, 192 W. Va. at 192-93, 451 S.E.2d at 758-59 (quoting

...