Kennel case goes to circuit
In an ongoing dispute on River Ridge Circle regarding the operation of a dog kennel as a home business, Chancery Judge Robert Whitwell has ordered the case go to circuit court.
Motions were heard in two cases, Steve Lacroix et. al. vs. Debra Newsom, Amiee Newsom and 10 Does April 23 (Case 18-cv-541 W) and in Steve Lacroix et. al. vs. Marshall County Zoning, Marshall County Planning (Case 19 cv 060).
Case 541 was filed by Lacroix and 35 other plaintiffs on Oct. 30, 2018, asking for injunctive relief for plaintiffs, most of whom live in a subdivision on River Ridge Road where the defendant also lives and has operated a dog kennel for a number of years.
Plaintiffs filed a complaint once they learned Planning Commission and Zoning had no record of a permit to operate the home business. So, the county was obligated to process a permit request for a special exception last year. Zoning approved the special exception to allow Newsom to continue to operate a kennel in a building near her house and the board of supervisors, after hearing an appeal by Lacroix and others, approved the special exception.
Judge Whitwell heard several motions bearing on the two cases.
Lacroix filed a motion to join all plaintiffs in 541 after Bill Schneller, attorney for the defendant, argued that Lacroix could not include the 35 other plaintiffs in his case because Lacroix is not a licensed attorney and therefore could not represent the other plaintiffs.
On February 8, 2019, Whitwell filed an order for the joinder of nine plaintiffs and ordered a hearing set for April 23.
Lacroix said he has tried to establish how many dogs Newsom has sold the last five years and the names and addresses of those persons who purchased the registered dogs.
“Why would you need the names and addresses of all she has sold to in the last five years?” Whitwell asked.
Lacroix said Newsom denies she breeds and sells as many dogs as she does.
“If she admits she sells dogs, I don’t think you are entitled to the names and addresses of people she sells to,” Whitwell said. “I don’t think they should be brought in it.”
Schneller said Lacroix is “creating nefarious deeds, harassing my client and going to Internet websites.”
Whitwell ruled on several of Lacroix’s requests: on a record of the number of dogs born in the kennel and sold in the last three years; denied a request for names and addresses of persons who purchased dogs from Newsom in the last three years; and granted Lacroix to recover expenses of $200.
The judge moved on to motions in Case 19060.
Marshall County board attorney Kent Smith said he had several motions that could impact a joinder motion in Case
He said the court may be helped by looking at 060 before addressing the motion to join.
He cited the petition filed by Lacroix et. al. Feb. 11, 2019, against Marshall County Zoning and Planning Commission.
“My first motion is to dismiss or alternative, to transfer,” Smith said. “He’s asking for relief from this court concerning zoning. His cousin, Debra Newsom, he has an issue with. He asked to appeal the zoning decision March 4 before the board of supervisors. I filed a motion to transfer, to dismiss or transfer to circuit. I was trying to get Lacroix’s action in the proper place.”
Lacroix restated that he did file a complaint in circuit court.
“She’s running a commercial breeding business in my neighborhood,” he said.
Whitwell said Lacroix has to appeal in the proper place.
“You are asking me to reverse what the board of supervisors did?” Whitwell asked.
“No, the sole purpose is to make a ruling that the laws are what they are,” Larcoix said.
“They (the Newsoms) were granted a special exception in zoning,” Smith said. “He’s trying to get you (the court) to adjudicate and overrule the special exception. It should be litigated in the appropriate court.”
“The first purpose of this, so far that no one has acknowledged, is that the zoning rules mean what they say,” said Lacroix.
Whitwell cited a similar case in Lafayette County in a case involving the Sons of the Confederacy vs. University of Mississippi.
“I transferred that case to circuit court and a mandamus type action (where a court commands an inferior court to order a person to perform a public or statutory duty),” Whitwell said. “I don’t think I have jurisdiction over this case. The supervisors make their rulings on their minutes. In my opinion, you don’t have action against … them in this court.
“I read what you filed. Most of it is Federal Court stuff. I grant the motion to dismiss it. If you want to, transfer it to circuit court.”
“He wants to say zoning and the board of supervisors did not comply with their ordinances,” said Smith. “He can get that across the street. He can get that all in one place. He’s trying to litigate the application of the zoning ordinances.”
“I agree, it’s strictly about the zoning regulations,” Lacroix said.
“Then you can do that in circuit court. It is a proper remedy,” Whitwell said, reading the number of the section of code.
Lacroix asked to have the case transferred.
“All right, we will transfer it all to circuit court,” Whitwell said.
“I have no objection,” Smith said. “I’ll file to consolidate (the two cases) when we get over there.”
“I assume that takes care of 541, the joinder,” said Schneller, attorney for the defendants.
Whitwell then awarded offsetting attorney’s fees of $200 to Lacroix and to Newsom.
Summary of 541:
Lacroix et. al. sought injunctive relief for the 36 plaintiffs. General allegations in the claim included that the defendants operate an illegal puppy mill from their home causing substantial, excessive and unreasonable noise causing injury to the plaintiffs; that zoning regulations do not allow for a special exception for this type of home business in the subdivision; and asked for injunctive relief by enforcing zoning regulations by ordering defendants to cease and desist operations; and for punative damages of $2,500 for each plaintiff ((36 in all) and legal costs.
Schneller, attorney for the Newsoms, on Nov. 29, 2018, filed a motion to dismiss because Lacroix is not a licensed attorney and therefore cannot file on behalf of the group.
On Jan. 3, 2019, Lacroix et. al. filed an opposition to a motion to dismiss filed by Schneller.
Subpoenas were issued for permits from zoning, records of Newsom’s business and inspections, for Ken Jones, and for kennel club records.
Schneller, on January 9, 2019, filed a motion to dismiss and for Rule 11 sanctions. (Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.)
On Jan. 10, 2019, Lacroix filed to combine motions to set aside dismissal of the case and to allow joinder of pro se (for oneself) plaintiffs and to amend the complaint.
On Jan. 18, 2019, Lacroix et. al. filed for additional punative damages and for a cease and desist of operations order.
Schneller filed a motion to dismiss, citing frivolous method of filing complaint on Feb. 4 by Lacroix et. al.
Schneller filed answers to 43 allegations on Feb. 6.
Whitwell filed order for joinder of 9 plaintiffs on Feb. 8 and orders hearing set for April 23.
Summary of Case 19060:
Lacroix et. al. vs. Marshall County Zoning, Marshall County Planning Commission and Does 1-10 is a petition filed Feb. 11, 2019, for a declaratory judgement and injunctive relief and for joinder petitions to order Marshall Planning Commission and Zoning to abide by ordinances and regulations.
On March 1, Marshall County asked for more time.
On March 15, Marshall County filed a motion to dismiss or alternatively to transfer Case 19060 to circuit court.