PNGI Charles Town Gaming, LLC v. Reynolds

• Decision Date: 18 November 2011
• Docket Number: No. 101503.,101503.
• Citation: 229 W.Va. 123,727 S.E.2d 799
• Parties: PNGI CHARLES TOWN GAMING, LLC d/b/a Charles Town Races and Slots, Petitioner v. Lawrence REYNOLDS, Anthony Mawing, Alexis Rios–Conde, Jesus Sanchez, Dale Whitaker, Luis Perez, and Tony Maragh, Plaintiffs Below, Respondents and West Virginia Racing Commission, Defendant Below, Respondent.
• Court: West Virginia Supreme Court

229 W.Va. 123

727 S.E.2d 799

PNGI CHARLES TOWN GAMING, LLC d/b/a Charles Town Races and Slots, Petitioner

v. Lawrence REYNOLDS, Anthony Mawing, Alexis Rios–Conde, Jesus Sanchez, Dale Whitaker, Luis Perez, and Tony Maragh, Plaintiffs Below, RespondentsandWest Virginia Racing Commission, Defendant Below, Respondent.

No. 101503.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 2011.

Decided Nov. 18, 2011.

Syllabus by the Court

1. “ ‘In reviewing the exceptions to the findings of fact and conclusions of law supporting the granting of a temporary or preliminary injunction, we will apply a three-pronged deferential standard of review. We review the final order granting the temporary injunction and the ultimate disposition under an abuse of discretion standard, West v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo.’ Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. pt. 1, State v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d 792 (1996). Syl. Pt. 1, Camden–Clark Mem'l Hosp. Corp. v. Turner, 212 W.Va. 752, 575 S.E.2d 362 (2002).

2. “One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law.” Syl. Pt. 2, Smith v. W. Va. State Bd. of Educ., 170 W.Va. 593, 295 S.E.2d 680 (1982).

3. An ejection of a permit holder by either a racing association or the stewards is subject to review by the West Virginia Racing Commission as set forth in West Virginia Code § 19–23–6 (2007 & Supp.2011) and West Virginia Code of State Rules § 178–1–4.7.

4. “A litigant may not silently acquiesce to an alleged error ... and then raise that error as a reason for reversal on appeal.” Syl. Pt. 1, in part, Maples v. W. Va. Dep't of Commerce, Div. of Parks and Recreation, 197 W.Va. 318, 475 S.E.2d 410 (1996).

Carte P. Goodwin, Esq., Goodwin & Goodwin, Charleston, WV and Stuart A. McMillan, Esq., Brian M. Peterson, Bowles Rice McDavid Graf & Love, LLP, Charleston, WV, for the Petitioner.

Michael L. Glasser, Esq., Meyer Ford Glasser & Radman, PLLC, Charleston, WV, and Mindy L. Coleman, PHV, Nicholasville, KY, for Amicus Curiae Jockeys' Guild, Inc.

Gregory A. Bailey, Esq., Arnold & Bailey, PLLC, Shepherdstown, WV, and Douglas L. McSwain, PHV, Sturgill, Turner, Barker & Moloney, PLLC, Lexington, KY, for Amicus Curiae NHBPA, CTHBPA, & MPHBPA.

Benjamin L. Bailey, Esq., Christopher S. Morris, Esq., Bailey & Glasser, LLP, Charleston, WV, for the Respondent Jockeys.

Darrell V. McGraw, Jr., Esq., Attorney General, Kelli D. Talbott, Esq., Deputy Attorney General, Anthony E. Eates, Esq., Assistant Attorney General, for the West Virginia Racing Commission.

WORKMAN, C.J.:

The Petitioner, PNGI Charles Town Gaming, LLC, d/b/a Charles Town Races & Slots (hereinafter “CTR & S”), a non-party in the underlying action,¹ appeals the circuit court's Order enjoining it from excluding certain jockeys ² from CTR & S's premises pending the outcome of the jockey's administrative appeal of the West Virginia Racing Commission's (hereinafter “Racing Commission”) decision ³ to the circuit court. The Racing Commission suspended each jockey's occupational permit for thirty days and imposed fines. CTR & S argues that the circuit court erred: 1) in entering a stay of the Racing Commission's order even though West Virginia Code § 19–23–17 (2007) expressly prohibits such a stay; 2) in exercising jurisdiction over CTR & S, a non-party, by concluding that CTR & S was “in active concert or participation with” the Racing Commission under Rule 65(d) of the West Virginia Rules of Civil Procedure; 3) in enjoining CTR & S by abusing its discretion in applying the four factor test set forth by the Court for the issuance of injunctions in Camden–Clark Memorial Hospital Corp. v. Turner, 212 W.Va. 752, 575 S.E.2d 362 (2002); 4) in failing to follow the procedural requirements set forth in West Virginia Rule of Civil Procedure 65 prior to issuing the injunction in this case; and 5) by issuing an injunction that infringes upon CTR & S's fundamental common law property right to exclude permit holders, including jockeys, from its premises so long as the exclusion is not based upon race, creed, national origin, or other protected classification. Based upon a review of the respective parties' briefs and oral arguments, the amici curiae briefs,⁴ the record, and all other matters submitted before the Court, the Court affirms the circuit court's decision.

I. Procedural and Factual History

On March 25 and 26, 2009,⁵ each of the seven named jockeys allegedly failed to declare to Michael Garrison, the Clerk of Scales,⁶ that each jockey was overweight in excess of one pound, or if the jockey did declare an overweight amount, the jockey failed to declare an accurate amount and/or the jockey failed to declare to the clerk of scales that the jockey was overweight in excess of two pounds. SeeW. Va.C.S.R. §§ 178–1–17.2 and 178–1–63.3 (respectively providing that any overweight amount in excess of one pound shall be declared by the jockey to the clerk of scales at least one hour before the appointed race and that an overweight amount of more than two pounds in excess of the weight the horse is to carry shall be declared to the clerk of scales). The jockeys and the clerk of scales allegedly were caught on videotape not properly completing the weigh outs.⁷

On April 8, 2009, the board of stewards ⁸ concluded that the jockeys had violated certain provisions of the West Virginia Code of State Rules including failure to declare an overweight amount.⁹ The board of stewards imposed a $1,000 fine on each of the jockeys and a thirty-day suspension of each of the jockey's occupation permits.

By letter dated April 14, 2009,¹⁰ from CTR & S to Lawrence Reynolds, one of the jockeys involved in the instant matter, CTR & S notified Mr. Reynolds that it was ejecting him from its property “effective immediately.” According to the letter, “[a]ny authorization, license or invitation to enter upon the property, now or in the future is hereby revoked.”

Also on April 14, 2009, Mr. Reynolds filed a “Verified Complaint for a Temporary Restraining Order,¹¹ Injunctive Relief and Damages” in the Circuit Court of Kanawha County, West Virginia. According to allegations in the complaint, Mr. Reynolds sought an injunction against the Racing Commission to stay the suspension of his racing permit until such time as the jockey received a proper notice and a hearing on the matter leading to the suspension directed by the board of stewards.

Two days after the complaint was filed, on April 16, 2009, the circuit court heard oral argument from counsel for the jockeys and the Racing Commission regarding the injunction and stay sought by Mr. Reynolds. Thereafter, the circuit court entered an injunction and stayed the sanctions imposed against the jockeys until the conclusion of a hearing ¹² before the Racing Commission.¹³

After this ruling by the circuit court, CTR & S took the position that it was not barred by the circuit court's Order from excluding the jockeys from its facility pursuant to its asserted common law authority to exclude patrons from its private property. See, e.g., Marrone v. Washington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913). Based upon CTR & S's position, on April 16, 2009, the jockeys asked the circuit court to extend the injunction and the stay to include CTR & S. CTR & S was notified of this motion and participated in the hearing on the motion before the circuit court. The circuit court, by Order entered April 16, 2009, found that CTR & S “is in active concert or participation with the Defendant [Racing Commission]” and that “if the Track bars the Plaintiffs from racing at the Track, the irreparable harm that caused the Court to issue the TRO would go unabated. Such conduct would render the Court's TRO a nullity and frustrate the Court's authority to ensure compliance with its lawful orders.” The circuit court further stated:

Therefore, the Court ORDERS that PNGI Charles Town Gaming LLC shall not restrict or impede the rights of the Plaintiffs listed above to enter the Track and engage in their legitimate racing activities. The suspensions of the Plaintiffs' racing permits are stayed, and until the TRO expires, the Track may not impair or impede the Plaintiffs' rights to engage in activities consistent with the Plaintiffs' racing permits.

The Order was to expire “upon conclusion of the de novo hearing before the West Virginia Racing Commission, which will occur within thirty days of the filing of the Request for Hearing, unless extended for good cause shown or by agreement of the parties.” There are no objections by CTR & S noted in this Order, nor did CTR & S appeal the rulings in the Order.

The administrative de novo hearing before the Racing Commission hearing examiner occurred over five days in August and September of 2009. In the recommended decision of hearing examiner, dated April 22, 2010, the hearing examiner found that the jockeys were guilty of “conniving” with the Clerk of Scales “in the commission of a corrupt ... practice” by engaging in “farcical” weigh outs. This decision was adopted by the Racing Commission on May 21, 2010, to take effect on June 1, 2010. The Racing Commission suspended each jockey's occupation permit for thirty days and imposed the maximum fine of $1,000 each. The Racing Commission initially orally agreed to stay its final order pending appeal. By Order issued on May 24, 2010, the Racing Commission retracted its oral grant of the jockeys' motion to stay, finding that West Virginia Code § 19–23–17 precluded the Racing Commission from granting a stay.

Also on May 24, 2010, CTR & S filed a “Motion to Confirm Expiration...