Anderson v. Harris, (1999)

• Court: Shoalwater Bay Tribal Court of Appeals
• Writing for the Court: Per curiam.
• Decision Date: 27 January 1999
• Docket Number: SHO-CIV-06/98-17
• Citation: Anderson v. Harris (Shoalwater Bay Tribal Ct. of App. 1999)
• Parties: JAMES ANDERSON, APPELLANT v. SABRINA & MICHAEL HARRIS, APPELLEES

JAMES ANDERSON, APPELLANT v. SABRINA & MICHAEL HARRIS, APPELLEES

No. SHO-CIV-06/98-17

Shoalwater Bay Tribal Court of Appeals Shoalwater Indian Reservation Tokeland, Washington

January 27, 1999

James Anderson, Appellant, pro se; Sabrina Harris, Appellee, pro se.

SUMMARY

Per curiam.

Appellate Court holds that the trial court erred in its decision to destroy Appellant's pet Rottweiler because there was no evidence that Appellant "caused, permitted, or allowed" his dogs to escape his enclosure to "harass, injure, or kill" Appellee's cat. Pursuant to the Shoalwater Bay Tribal Code, the Court of Appeals has the ability to expand the record and allow presentation of additional evidence if the evidence which was not available at the time of the trial court proceeding and if refusal to consider the evidence would result in a clear injustice. Additionally, to authorize the destruction of a dog or other animal under Shoalwater Bay Code, Title 13, the courts must find a violation of the animal control ordinance in addition to a finding that the animal is a threat to the safety or health of the community. Reversed.

FULL TEXT

Before Charles R. Hostnik, Chief Justice; Lisa E. Brodoff, Justice Robert McCarthy, Justice.^[1]

This case involves an appeal of a trial court order placing a dog on death row. This matter has had a curious procedural history, which bears relating.

James Anderson owns two dogs who were approximately one year old at the time of the incident. When Mr. Anderson and his family were not home, the dogs were routinely kept within his fenced backyard. A gate through the fence was normally fastened with two hook latches at the top and bottom of the non-hinged side of the gate, a log along the bottom of the gate, and two stumps behind the log to hold the gate and log in place.

On June 2, 1998, Mr. Anderson returned home to find the gate had been unlatched and pushed open. Both dogs were missing. He looked in the immediate vicinity of his home and called for them without results. He then returned to his home, locked everything up and went out the front door of his home to go look for his dogs. At that point, one of the dogs came bounding into the yard, and he discovered his son had the other dog by its collar. In the vicinity of the second dog named Treasure, he discovered the cat owned by Mr. and Mrs. Harris, which was dead. His son had found Treasure rolling on its back on or near the dead cat.

Mr. Anderson secured his dogs, buried the cat, and immediately attempted to contact Mr. and Mrs. Harris. Both Mr. and Mrs. Harris were working, but Mr. Anderson was able to talk with Mr. Harris at his place of employment. Mr. Anderson notified Mr. Harris that somehow the gate in his yard was opened, his dogs had gotten loose, and it appeared that one of the dogs had killed their daughter's cat. Mr. Anderson offered to pay for the cat, or to obtain a replacement cat for their daughter. However, Mr. and Mrs. Harris indicated they had several other cats and they therefore declined those offers. At the time of trial Ms. Harris testified that she was concerned that the dog may injure her daughter.

The trial court entered an order dated June 10, 1998, which stated in part as follows:

Mr. Anderson's Rottweiler killed Ms. Harris' cat in her yard. The dog escaped from his fence. Mr. Harris has taken precautions to remedy the possible future escape. The court finds that no safety measures short of 24 hour chaining of animal will remedy situation. Dog is unpredictable and owner is not able to control dog.

Based on those findings the court entered an order requiring the dog to be removed within 30 days. That order went on to state: "If not done in this time frame, the dog shall be impounded and disposed." See Judgment Order of June 10, 1998.

This case was unusual in that the prevailing party, Ms. Harris, was the one that encouraged Mr. Anderson to appeal the trial judge's decision. Ms. Harris elected not to file an appellate brief opposing the relief requested by Mr. Anderson.

I. SCOPE OF REVIEW

Under the Shoalwater Bay Appellate Code, this Court is to limit its review to the record of the proceedings below, errors of law and procedure argued in the written briefs, and the oral argument presentation. Shoalwater Bay Appellate Code, §19.03.030. The Court of Appeals does have the ability to expand the record and allow presentation of additional evidence, if the evidence was not available at the time of the trial court proceeding, and if refusal to consider the evidence would result in a clear injustice. Shoalwater Bay Appellate Code, §19.08.070.

At the time of oral argument, Mr. Anderson had available pictures of his dog and of the additional security measures he has installed since this incident occurred on June 2. The pictures were first reviewed by Ms. Harris, who had no objection to allowing the appellate panel to view those photographs and the notations on each of the photographs.

These photographs did show additional evidence which was not available at the time of the trial court proceedings. The photographs assisted the Court of Appeals in understanding some of the trial testimony, and in visualizing the gate which allowed the dogs to escape. Introduction by testimony by Mr. Anderson concerning additional security measures taken to secure his dogs since the time of the incident, taken together with the photographs, was not objected to by Ms. Harris, and would have resulted in an injustice to the parties in this appeal by not permitting the Court to take all relevant facts into account prior to rendering this decision. Therefore, we find that the introduction of additional evidence by testimony and photographs was appropriate under §19.08.070 of the Shoalwater Bay Appellate Code.

II. DISCUSSION

Shoalwater Bay has enacted an animal control ordinance in Title 13 of the Shoalwater Bay Code. That ordinance places responsibility for damage on the owner of an animal:

13.01.010 RESPONSIBILITY FOR ANIMALS: Any person who owns or has under his control any animal shall be responsible for:

a) Damage to persons or property caused by the animal; and

b) Providing proper medical care, vaccinations, food, water, and reasonable supervision and care for the animal.

Shoalwater Bay Tribal Code, §13.01.010. In this case, Mr. Anderson immediately took responsibility for the killing of the cat based upon the fact that his dog was found in the vicinity of the cat. There is no evidence in the record that, in fact, Mr....