Virginia Lawyers Weekly VA Lawyers Weekly
A woman whose 17 dogs and one horse were removed from her care on a charge of mistreatment and abandonment cannot obtain an injunction against the county to prevent the adoption of some of the animals, says the Fairfax Circuit Court.
The county argues the district court entered a final order on Jan. 3, 2005, and plaintiff, having failed to appeal it timely, has no further recourse in this court. The county also maintains that injunctive relief is not proper in this case, and that, at the very least, the county cannot be compelled to return the animals to plaintiff because it no longer has them.
The language of the Jan. 3, 2005, order at issue in this case plainly indicates that the district court contemplated additional relief and continued the matter for further consideration. Further action was specifically scheduled and reserved by the district court. Therefore, the Jan. 3, 2005 order was merely interlocutory and cannot be considered final.
Due to several delays and schedule changes, the review intended by the district court did not occur until Feb. 16, 2006. After plaintiff’s appeal and a subsequent motion for a new trial, the commonwealth’s attorney’s office nonsuited the matter. The nonsuit was the first final order in this case. Since the Jan. 3, 2005, order was not final, plaintiff did not need to appeal it; and Rule 1:1 did not estop her from filing her complaint on April 22, 2008.
The county also argues that injunctive relief is not a proper remedy in this case because plaintiff has an adequate remedy at law, namely an action in detinue. Plaintiff’s horse and nine of the dogs (the 10th dog was euthanized after the animals had been seized) are in possession of the eight individual codefendants who adopted the animals. Plaintiff’s remedy at law is to bring actions in detinue against these individuals to have the animals returned to her. Given that this remedy is available to plaintiff and that she does not seek any unascertainable monetary damages, an action in detinue presents an equitable remedy at law.
The county no longer has the animals. It is well settled that an injunction should not lie where the act to be enjoined is already completed. Since the distribution and adoption of the animals have been completed, there is no action by the county for this court to enjoin.
Plaintiff’s complaint does not allege either inadequacy of any remedy at law or irreparable injury. A sufficient cause of action for injunctive relief has not been stated.
The county’s demurrer is overruled with leave to amend.
Root v. County of Fairfax (Smith, J.) No. CL 2008-5303, Dec. 14, 2010; Fairfax Cir.Ct.; Richard E. Gardiner for plaintiff; Karen L. Gibbons, Sr. Ass’t County Att’y. VLW 010-8-228, 5 pp.
