Opinion
2014 CA 0133
09-25-2014
WBR PARISH COUNCIL, THROUGH THE WEST BATON ROUGE ANIMAL CONTROL DEPARTMENT v. JAILEN JORDAN
Edmond Jordan Brusly, Louisiana Counsel for Defendant/Appellant Jailen Jordan Louis W. Delahaye Plaquemine, Louisiana Counsel for Plaintiff/Appellee West Baton Rouge Parish Council
NOT DESIGNATED FOR PUBLICATION On Appeal from the Eighteenth Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana
No. 1041007
Honorable James J. Best, Judge Presiding Edmond Jordan
Brusly, Louisiana
Counsel for Defendant/Appellant
Jailen Jordan
Louis W. Delahaye
Plaquemine, Louisiana
Counsel for Plaintiff/Appellee
West Baton Rouge Parish Council
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON, J.
A dog owner appeals a trial court's judgment ordering that his dog be euthanized. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On Wednesday, September 18, 2013, David Wilson was at his home on Hebert Street in Brusly when he "heard a loud commotion going on in the backyard." Mr. Wilson had a Labrador Retriever ("lab") caged in a kennel in the backyard, and he noticed that "there was a big dog fighting with my lab through the fence." The dog that was fighting with his lab then ran toward its owner's house, so Mr. Wilson went to check on his lab. Mr. Wilson indicated that while he was checking on his lab, he "turned around and looked and this dog hit me, I mean as soon as I saw him, he was making a beeline and grabbed me on the right knee." Mr. Wilson testified that he hit the dog two or three times on the head with his hand, but the dog would not let go and "was just shaking harder and harder." Mr. Wilson indicated that "I was afraid if the dog got me on the ground, off of my feet and on the ground, that it could have been ... very serious." Mr. Wilson then moved about two steps to his camper, which was located next to his lab's kennel and where he stored a loaded shotgun. Mr. Wilson further stated: "I pulled the dog with me on my leg to where I could pop the door, grab a shotgun and ... I grabbed the gun, I think with my right hand, the dog still wouldn't let go, still clamped on, and I hit him holding the butt of the gun - the butt stock of the gun. I hit him several times trying to let my knee go. ... The dog finally let go, spun back or ran back a couple of feet and then turned facing me."
Mr. Wilson testified that he then leaned up against his trailer to compose himself. He testified that at that point, "the dog started back towards me again, and I shoved the gun out and pulled the trigger and shot. I missed the dog, the slug went right by his head into the ground." The dog then retreated and went toward the home of his owner, Jailen Jordan.
Mr. Wilson, who was forty-four years old at the time of the attack, indicated that the pain from the dog bite "was close to being unbearable" and that he had never experienced any pain like that before. Mr. Wilson called 9-1-1 and was transported to the hospital by Acadian Ambulance. Mr. Wilson's injury required eleven stitches.
Richard Summers, the director of Animal Control for West Baton Rouge Parish, received a call regarding the incident shortly after it occurred. Mr. Summers went to the Jordan residence where there were two dogs present, and Mr. Summers took the larger of the two dogs, Shadow, into custody.
On September 25, 2013, the West Baton Rouge Parish Council through its Animal Control Director ("the Council") filed a "Petition to Declare a Pit Bull Dog as a Dangerous Dog in Accordance with LA. R.S. 14:102.13, et seq.," naming Jailen Jordan, the dog's owner, as defendant. The Council sought a declaration that the dog was a "dangerous" dog that should be humanely euthanized because it posed an immediate threat to public health and safety. The trial court set a hearing on the petition for October 3, 2013, and following the hearing, rendered a ruling on that date declaring Shadow to be a dangerous dog and ordering Shadow to be humanely euthanized. A written judgment evidencing the ruling in open court was signed on October 17, 2013.
Specifically, the written judgment provided, in pertinent part:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the male Pit Bull dog named Shadow belonging to the defendant, Jailen Jordan, is hereby declared to be a DANGEROUS DOG in accordance with the provisions of La. R.S. 14:102.14 A(2).
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the male Pit Bull dog named Shadow belonging to the defendant, Jailen Jordan, is hereby declared to pose an immediate threat to public health and safety pursuant to La. R.S. 14:102.16 C.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the male Pit Bull dog named Shadow belonging to the defendant, Jailen Jordan, shall be humanely euthanized pursuant to La. R.S. 14:102.16 C.
Jailen Jordan ("appellant") has timely appealed the trial court's ruling, assigning the following as error:
1. The Trial Court erred by proceeding with trial over defendant's objection that trial was being commenced three days beyond the statutorily mandated time delay set forth in La. R.S. 14:102.13(B).
2. The Trial Court erred in ordering that Shadow be euthanized, notwithstanding a complete failure by the Parish Council to provide [the trial court] with a positive identification confirming Shadow as the dog that actually bit Wilson.
3. The Trial Court erred in ordering Shadow to be euthanized without sufficient evidentiary support for its conclusion that Shadow "posed an immediate threat to public health and safety." Additionally, the phrase: "pose an immediate threat to public health and safety[,]" as used in La. R.S. 14:102.16, is vague and ambiguous.
DISCUSSION
In his first assignment of error, appellant asserts that the trial court erred in failing to hold a hearing within five days after the trial court issued a rule to show cause why the dog should not be declared dangerous. Specifically, LSA-R.S. 14:102.13B provides:
Upon the filing of the petition, the district judge shall immediately issue a rule on the owner of the dog to show cause why the dog should not be declared a dangerous or vicious dog. This rule shall, at the time of its issuance, be fixed for hearing not later than five days, including Sundays, half-holidays and holidays, from the date of its issuance, and shall be heard by preference over all other matters and cases fixed for the same day and shall be heard continuously day after day until submitted for adjudication.Appellant notes that the rule was issued on September 25, 2013, but the hearing was not held until October 3, 2013, or more than five days after the issuance of the rule. Appellant, noting that the statute uses the mandatory word "shall" instead of the permissive "may," concludes that the hearing therefore was not held timely and that the petition should have been dismissed.
We recognize that the legislature, in adopting LSA-R.S. 14:102.12, et seq., envisioned that proceedings seeking to have dogs declared dangerous or vicious were to be expeditious. The failure to set the hearing within the delay provided in LSA-R.S. 14:102.13B, however, was not attributable to the Council. Rather, the trial court determined when to set the matter for hearing. Further, although appellant contends that his "substantial property rights" were violated, appellant offers no evidence to show how his rights were violated or how he was prejudiced by the three-day delay. Cf. State v. Pearson, 41,812 (La.App. 2 Cir. 9/8/06), 939 So.2d 568, 573-74, writ denied, 06-2231 (La. 9/13/06), 936 So.2d 1250, where LSA-R.S. 18:1409A of the election code provides that "trial shall begin no later than 10:00 a.m. on the fourth day after suit was filed," but trial outside of the delay did not warrant dismissal of petition where the failure was not chargeable to the petitioner and the defendant failed to show prejudice. Moreover, we note that appellant did not seek supervisory writs to review the trial court's failure to set the hearing within the five-day period. Cf. Boudreaux v. Braun Investments, LLC., 03-1070 (La.App. 5 Cir. 2/23/04), 869 So.2d 180, 185, writ denied, 04-0705 (La. 5/7/04), 872 So.2d 1084, wherein the court found that although LSA-C.C.P. arts. 3602 and 3782 require that applications for preliminary injunctions and mandamus "shall be assigned for hearing not ... more than ten days" after service, the party failed to seek redress at the appropriate time through supervisory writs. In light of these considerations, assignment of error number one is without merit.
In addition to requiring that the rule, at the time of issuance, shall fix the hearing within five days, any appeal "shall be perfected within five calendar days from the rendition of the order and shall be made returnable to the appropriate appellate court in not more than fifteen calendar days from the rendition of the order." LSA-R.S. 14:102.13H. Although the appellant's motion for appeal was filed within this statutory delay, the trial court set a return date beyond the 15-day period set forth in the statute.
In his second assignment of error, appellant contends that the trial court erred in ordering Shadow be euthanized, notwithstanding failure by the Council to positively identify Shadow as the dog that bit Wilson. We disagree. At trial, Mr. Wilson testified that the dog in question was the dog owned by appellant. Todd Kelley, who was appellant's neighbor and was called as a witness by appellant, identified the "dog in question" by name as Shadow during his testimony and also testified that he saw Shadow running around the front part of the Jordan's house after he heard a shotgun blast. Moreover, although the Jordans owned two dogs, Mr. Wilson noted that he was attacked by the larger of the two dogs. Additionally, it is undisputed that Mr. Summers took the larger of the two dogs, Shadow, into custody. Accordingly, assignment of error number two is without merit.
Mr. Wilson also testified that he fired a second shot that hit the smaller of the two dogs. Mr. Summers indicated that upon arriving at the Jordan home, he noted that the smaller of the two dogs, which was not taken into custody, had a puncture wound in its side.
In his third assignment of error, appellant contends that the trial court erred in ordering Shadow to be euthanized, notwithstanding a complete lack of sufficient evidence to support that Shadow posed "an immediate threat to public health and safety."
A "dangerous dog" includes "[a]ny dog which, when unprovoked, bites a person causing an injury." LSA-R.S. 14:102.14A(2). In every case where a dog is established to be a dangerous dog, the court shall enter an order declaring the dog to be dangerous and shall direct the owner of the dog to comply with conditions established for the restraint and confinement of the dog as provided by law. LSA-R.S. 14:102.13D. Such requirements include: (1) keeping a dangerous dog, while on the owner's property, indoors or in a secure enclosure; (2) restraining the dangerous dog on a leash at all times when the dog is off the owner's property to prevent its escape or access to other persons; (3) posting signs that bear the words "Beware of Dog" or "Dangerous Dog" in letters at least three and one-half inches high around the secure enclosure no more than thirty feet apart and at each normal point of ingress and egress so as to be readily visible to any person approaching the secure enclosure; and (4) vaccinating and licensing the dangerous dog. LSA-R.S. 14:102.14C and D, LSA-R.S. 14:102.17A. Alternatively, a dog determined by the court to be a dangerous dog may be humanely euthanized if it is determined that the dog poses an immediate threat to public health and safety. LSA-R.S. 14:102.16C.
Moreover, a dog determined by the court to have, when unprovoked, in an aggressive manner, caused the death of or inflicted bodily injury on a human being may be humanely euthanized. LSA-R.S. 14:102.18D. We note that the referenced statute was not relied upon by the trial court or referenced by either of the parties.
Appellant does not contest the trial court's finding that Shadow is a dangerous dog. Appellant contends, however, that there has been no showing that Shadow is an immediate threat to public health and safety. Appellant notes that the testimony adduced at trial reflected that Shadow generally had a non-aggressive temperament and was characteristically shy in nature. Appellant also notes that the trial court indicated that this was the first time Shadow had showed any signs of aggression.
Appellant avers that the statute is criminal in nature and should be given a narrow interpretation. Appellant contends that the phrase "immediate threat to public health and safety" as it appears in LSA-R.S. 14:102.16C is vague and ambiguous. Appellant notes that the statute does not define what the phrase means and that Mr. Summers, the director of the West Baton Rouge Animal Control Center, could not provide a response to what the phrase meant. Appellant concludes that the trial court's order that Shadow be euthanized was manifest and reversible error.
In concluding that Shadow should be euthanized, the trial court noted the violent nature of the attack. The trial court indicated that one of the most "upsetting things about it was the shaking, not letting go, to be beat in the head by a gun barrel, until he released, then he took off and turned around and charged again. It was only the first shot that ... ran him off." The trial court believed that it would have been much worse had Shadow been able to get Mr. Wilson to the ground or had attacked a child. The trial court found that, if given the opportunity, Shadow would "turn on whomever." Although the trial court did not specifically state in its oral reasons that Shadow was an immediate threat to public safety and welfare, it specifically made that finding in its written judgment.
The trial court's factual finding that Shadow is an immediate threat to public safety and welfare is subject to the manifest error standard of review. Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270, 279. Considering the standard of review and the entirety of the record, we are constrained to conclude that the trial court did not commit manifest error in ordering Shadow be euthanized.
CONCLUSION
For the foregoing, the trial court's October 17, 2013 judgment is affirmed. Costs of this appeal are assessed to appellant, Jailen Jordan.
AFFIRMED.