Brant v. City of Indianapolis

• Decision Date: 12 September 2012
• Docket Number: No. 49A05–1201–OV–12.,49A05–1201–OV–12.
• Citation: 975 N.E.2d 376
• Parties: Wayne BRANT, Appellant–Defendant, v. CITY OF INDIANAPOLIS, Appellee–Plaintiff.
• Court: Indiana Appellate Court

975 N.E.2d 376

Wayne BRANT, Appellant–Defendant,

v.CITY OF INDIANAPOLIS, Appellee–Plaintiff.

No. 49A05–1201–OV–12.

Court of Appeals of Indiana.

Sept. 12, 2012.

Karen Celestino–Horseman, Indianapolis, IN, Attorney for Appellant.

Alexander Will, Chief Litigation Counsel, Travis E. Shields, Assistant Corporation Counsel, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

In this case, we consider whether a pet owner with four barking dogs that annoy only one of his neighbors creates a sufficient nuisance to be in violation of a local noise ordinance. We conclude that the plain, ordinary, and usual meaning of the term “persons” as used in the ordinance necessitates our holding that the complaints of just one neighbor are insufficient.

Appellant-defendant Wayne Brant appeals the trial court's ruling that he violated a local noise ordinance enforced by appellee-plaintiff, the City of Indianapolis (City). On appeal, Brant raises three issues, which we consolidate and restate as: (1) whether the plain and ordinary meaning of the term “persons” in the ordinance requires a finding that multiple persons were seriously annoyed or disturbed in order for a violation to have occurred; and (2) whether the ordinance is unconstitutionally vague as applied because its definition lacks an objective reasonableness standard.

We conclude that the trial court lacked sufficient evidence to find Brant in violation of the noise ordinance. Because we find this issue dispositive, we reverse the trial court's ruling without reaching Brant's constitutionality claim.

FACTS

Brant and his mother Betty Wilson live at 9037 East 12th Street in Indianapolis. They have four dachshunds. Marilyn Annette Moore lives two parcels down from Brant and Wilson at 9135 East 12th Street. Moore also owns the house at 9131 East 12th Street, which is located between her residence and that of Brant and Wilson, and she uses this house as a rental property. Moore maintains a daily log of all the goings-on in the neighborhood that bother her and frequently calls law enforcement and other municipal agencies when she identifies what she believes to be a violation of the law.

On at least one occasion, Moore called the authorities to report that the dogs at Brant's residence were continuously barking and interfering with her ability to enjoy her property. In September 2011, Brant received a citation from the City for allegedly violating section 531–204(a) of the Revised Code of the Consolidated City and County (Revised Code), which provides:

It shall be unlawful for a person to own or keep any animal which by frequent or habitual howling, yelping, barking, screeching, other vocalization or otherwise shall cause serious annoyance or disturbance to persons in the vicinity.

On January 4, 2012, a bench trial was held during which Moore, Brant, and several neighbors testified. Moore, as the City's only witness, testified that Brant's dogs “are out for many minutes per day barking at the house wanting to get back in.” Tr. p. 9. She testified that the dogs may bark continuously “for fifteen minutes to a half a day.” Id. at 22. As to how the barking seriously annoys or disturbs her, Moore testified that when she is in her backyard, she cannot hear her cellular telephone ring or enjoy her gardening because of the “constant noise and harassment from [the] dogs.” Id. at 23. She also stated that she could not sit outside and have a cookout “peacefully.” Id. The logs kept by Moore, a mostly typed summary relating only to Moore's complaints about Brant and Wilson and her original handwritten log, were admitted into evidence.

On cross-examination, Brant's counsel questioned Moore about the accuracy of the typed summary, noting that many of the time durations appeared to have been added at a later date because they were not present in the original handwritten log. For example, the typed log for one entry stated, “1245 barking x 1 hour” while the handwritten log for the same entry stated, “1245 9037 Bark.” Tr. p. 24–25; Plaintiff's Ex. 1 at 1; Defendant's Ex. A at 4. In response, the City stipulated “that the times may not be accurate” and stated, “I don't care if they were barking for five minutes or five hours. That's irrelevant....” Tr. p. 26.

Brant's counsel also cross-examined Moore about other notations in the log and the number of times she has called the authorities on other neighbors. Moore admitted to calling the police on children playing in the street in front of her house, which she characterized as “[h]igh-pitched screaming, personal disturbances.” Id. at 29. She also admitted to calling the police because of “[d]isturbing loud music” and to calling Animal Care and Control on another neighbor more than forty times in a period of six years. Id. at 29–30. In June 2011, Moore wrote and distributed a letter to others in the neighborhood in which she referred to Brant as a “freeloader” and Wilson as “demented,” in addition to airing grievances about other neighbors. Defendant's Ex. D at 1. In her in-court testimony, Moore referred to Brant as “gay” although this assertion is apparently not true. Tr. p. 37, 59. Finally, Moore admitted to installing surveillance cameras that were aimed into the backyard and at the screened-in porch of Brant and Wilson for the purpose of “capturing the dog disturbances.” Id. at 34.

Several neighbors testified for Brant. Most of the neighbors acknowledged that they had heard the dogs barking on occasion, but they all testified that they were neither seriously annoyed nor seriously disturbed by the barking. Adrian Trowbridge, the neighbor upon whom Moore had called Animal Care and Control forty times, testified that she had her dogs “debarked” ¹ because of Moore's repeated reports but that Moore continued to make reports even after the procedure. Id. at 44.

Brant also testified on his own behalf. He testified that he has two short-haired dachshunds and two long-haired dachshunds that he sometimes lets outside in his fenced yard for up to an hour. He stated that the dogs typically go outside for about fifteen or twenty minutes in the morning, and he “occasionally” lets them out at night as well. Tr. p. 59–60. He stated that he never leaves the dogs out when he leaves. Brant testified that the dogs only bark occasionally, such as at other animals or at “[Moore] when she decides to provoke them.” Id. at 58. Brant stated that Moore has “ran planks of boards up against her fence,” “yell[ed] at [his] dogs,” “thrown water over the fence at [the] dogs,” “sprayed [the] dogs with her water hose,” and “throw[n] dirt over.” Id. at 58–59.

In reaching its decision, the trial court observed that Moore is “extremely anal-retentive about keeping notes and about calling the police when something bothers her.” Tr. p. 71. However, the court stated that “[i]t is a right as a citizen to call the police when you are disturbed by your neighbors....” Id. In finding that Brant had violated section 531–204(a) of the Revised Code, the trial court stated that “what's been presented to the court shows that at least one person had been seriously annoyed by the habitual barking of the dogs.” hi at 72. Consequently, the trial court ordered, pursuant to the mandatory provisions of section 531–728 of the Revised Code, that Brant be limited to owning two dogs and that the dogs be spayed or neutered. The trial court ordered these decrees to be completed within thirty days from the date of the hearing.² Brant now appeals.

DISCUSSION AND DECISION

As noted above, Brant's first argument on appeal is that the State failed to prove that he violated the ordinance at issue if the term “persons” in the ordinance is afforded its plain and ordinary meaning. More particularly, Brant argues that the ordinance requires more than one person to be seriously annoyed or disturbed for a violation to occur and that the City consequently failed to meet its burden by presenting only Ms. Moore's testimony in support of its case.

We review a trial court's interpretation of an ordinance de novo. City of Indianapolis v. Campbell, 792 N.E.2d 620, 623–24 (Ind.Ct.App.2003). Once we arrive at the correct interpretation of a statute, our review of a challenge alleging insufficient evidence is limited. Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind.Ct.App.1999). We will consider only the evidence favorable to the judgment and all reasonable inferences. Muehlman v. Keilman, 257 Ind. 100, 107, 272 N.E.2d 591, 595 (1971). We will not reweigh the evidence or judge the credibility of witnesses, and we will reverse only “if there is not substantial evidence of probative value to establish each material element of the claim.” In re Petition of Meyer, 471 N.E.2d 718, 721 (Ind.Ct.App.1984).

Ambiguous municipal ordinances are interpreted according to the same rules of construction that apply to ambiguous statutes. Hall Drive Ins., Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind.2002). An ordinance is ambiguous if it is susceptible to more than one reasonable interpretation. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind.Ct.App.2003).

Our primary goal in construing an ordinance is to “ascertain and give effect to the intent of the ... drafters.” Campbell, 792 N.E.2d at 624. The intent of the drafters is best recognized by appreciating the specific language that was chosen. Id. Accordingly, each word in an ordinance should “be given [its] plain, ordinary, and usual meaning, unless a contrary purpose is shown by the ... ordinance itself.” Ragucci v. Metro. Dev. Comm'n of Marion Cnty., 702 N.E.2d 677, 681 (Ind.1998). However, we consider the ordinance “as a whole” and “avoid ‘excessive reliance upon a strict literal meaning or the selective reading of individual words.’ ” George v. Nat'l Collegiate Athletic Ass'n, 945 N.E.2d 150, 154 (Ind.2011), reh'g denied (citing State v. Oddi–Smith, 878 N.E.2d 1245, 1248 (Ind.2008)).

As noted above, Brant was cited for a violation of section...