Frouz v. Commonwealth
| Decision Date | 06 December 2018 |
| Docket Number | Record No. 171450 |
| Citation | 821 S.E.2d 324 |
| Parties | Nahid Azad FROUZ v. COMMONWEALTH of Virginia |
| Court | Virginia Supreme Court |
Martin Mooradian, for appellant.
Kelci A. Block, Assistant Attorney General (Mark R. Herring, Attorney General; Michelle Welch, Senior Assistant Attorney General, on brief), for appellee.
PRESENT: All the Justices
OPINION BY JUSTICE CLEO E. POWELL
By summons issued pursuant to Code § 3.2-6540, Nahid Azad Frouz ("Frouz") was ordered to respond to an allegation that she was the owner of a "dangerous dog." After a bench trial, the circuit court found that the dog was a "dangerous dog" within the meaning of Code § 3.2-6540(A),1 that Frouz was the custodian or harborer of the dog, and ordered Frouz to pay restitution for the injuries to a dog belonging to Kimberly Kern ("Kern"). Frouz appeals the circuit court’s judgment to this Court.
Frouz and her husband, Ali Aalai ("Aalai"), live on property abutting Belmont Bay in Fairfax County. Blue, their son Mohammad’s pit bull, stayed in the home while Mohammad studied for exams in New York. Kern lives next door to Frouz and Aalai and owns three dogs: Gunston, Mason, and Belmont. Kern’s property has a two-acre yard also abutting Belmont Bay near the mouth of Massey Creek. Between the houses is a wooded area overgrown with bamboo, most of which belongs to Frouz and Aalai as their property line came up to the edge of the wooded area near Kern’s boat ramp. This boat ramp is next to a dock at the edge of Kern’s yard where it meets the shoreline of Belmont Bay.
Patricia Klein ("Klein") testified as follows at trial. On July 5, 2016, Klein and her boyfriend Dennis were visiting Kern. Klein, Dennis, and Kern’s daughter Caroline launched two kayaks from Kern’s boat ramp into Belmont Bay. Kern’s three dogs were out in her yard when Klein, Caroline, and Dennis left in the kayaks. Gunston and Belmont stayed in Kern’s yard, but Mason followed the kayaks along the shoreline past the wooded area and Frouz’s yard. Klein and Dennis turned around to go back to the boat ramp in order to put Mason in a kennel. When they got close to shore, they saw Blue on the beach "walking back and forth." Klein testified that Blue and Mason were at the boat ramp while Gunston and Belmont were on the dock. Klein and Dennis paddled away from the boat ramp in the opposite direction from Frouz’s house to see if Kern’s dogs would return to Kern’s house but Mason followed them. After a few moments, they returned to the boat ramp to find Blue still on the beach.
Klein and Dennis paddled back to Frouz’s property to get someone to call Blue away. They saw a woman and a boy in Frouz’s yard and called to them "to get their dog back." The woman called out to Blue but he did not react so the woman approached Blue, who was then "very close to the boat ramp." At that point, Blue and Mason stood very close to each other "in that kind of staring contest" until Caroline called Mason. When Mason turned to look at Caroline, Blue jumped on top of Mason on the boat ramp. Gunston got between the other two dogs and Blue started to bite Gunston’s "neck and his throat and kind of trying to drag him away."
Klein identified a photograph of a beach area below the boat ramp where Blue dragged Gunston after biting him. The photograph showed that the line between Kern’s property and Frouz’s property was at the edge of the boat ramp. Kern testified that the boat ramp, dock and shed belong to her and her husband. On the day of the attack, Kern saw Blue on top of Gunston at the base of the boat ramp.
Frouz’s brother, Masoud Azad Frouz ("Masoud"), testified he was staying with Frouz on the day of the attack and saw Kern’s three dogs running up and down on the riverbank at the edge of Frouz’s property.
Annick Panahi ("Panahi") testified that she was with her grandchild in Frouz’s yard when she saw three dogs running behind the fence in the yard. She indicated that Gunston tried to dig under the fence and got its head inside Frouz’s yard. She further testified that Blue fought Gunston, forcing him back, and then that she saw Gunston run toward the water. According to Panahi, the two dogs continued fighting "[b]y the water, by the beach" at the bottom of Frouz’s yard.
During the course of the trial, evidence was presented regarding statements made by Frouz that bear on the issue as to whether she was an owner or custodian of Blue. Prior to the incident, Frouz had written to the neighbors to alert them to Blue’s aggressive nature. After the incident, Frouz called Kern to advise her that "her dog [Blue] was fine ... and that everybody needs to be more aware of their dogs." Although Kern testified she thought Frouz owned Blue, the evidence presented established that Frouz had written in an email that her son actually owned Blue.
Frouz also testified on direct examination that Mohammad owned Blue and that he had asked her husband, Aalai, to take care of Blue while he studied for exams. She denied ever taking care of Blue and maintained that only Aalai took care of Blue. In response to questions from the court, Panahi also testified that only Aalai fed and watered Blue. Regarding events after the attack, Frouz testified that she "called [Kern] back ... because I could not get in touch with the animal control to go and save my dog." She also testified, "I called and asked her to give me any information about an animal control who could go and save my dog."
By stipulation, Frouz conceded that the testimony of the veterinarian, Dr. Lockhart, was not necessary, and the parties agreed "that serious physical injury, as determined by a licensed veterinarian, has occurred to ... Kern’s dog as a result of a bite of the Defendant’s son’s dog." The court ruled "there is nothing in the stipulation that indicates what the veterinary bills reflected" and sustained Frouz’s objection to the introduction of the medical records as hearsay. The Commonwealth showed Kern the veterinary records and bills to refresh her memory. The court allowed Kern to testify that she paid the veterinarian $3,896.15. Kern testified that Gunston spent several hours in surgery the day of the attack, and that Gunston was in the veterinary hospital for "[a]t least a week." Kern also testified that there was a rupture of the surgical repairs a few days into Gunston’s recovery, and that the veterinarian had repaired that as well.
Kern also testified in general as to Gunston’s health. She testified that his "health is good and was good prior to this incident." She further testified that Gunston had no injuries to his neck or face prior to the incident, and that he did not sustain any injuries after the incident within the time he returned to the veterinarian for his follow up appointments.
Following closing arguments, the circuit court ruled that Blue was a dangerous dog that attacked and inflicted serious injury on Gunston. The court found that there was evidence that the attack "may have started" on Frouz’s property, but further found "that the final element of the attack, which resulted in the serious injuries to which the parties have stipulated, took place on [Kern’s] property. ..." The circuit court went on to state that "while I said I believe [Panahi] was correct in saying that ... the fight between the dogs may have started on the property of [Frouz’s] family, it is clear to me that the Commonwealth has proven beyond a reasonable doubt that the actual attack, which resulted in the serious physical injury, took place on ... Kern’s property." The court also concluded that Frouz was "the custodian or the harborer" of Blue, finding that "the evidence is undisputed that she owns the house, has full ownership of the property with her husband." The circuit court ordered Frouz to pay restitution in the amount of $3,896.15 to Kern.
As a threshold matter, the Court directed the parties to address in their briefs whether the Court has appellate jurisdiction in this case. The parties both stated during oral argument that the matter is civil and jurisdiction lies with this Court, despite the language in the statute providing "[t]he procedure for appeal and trial shall be the same as provided by law for misdemeanors." Code § 3.2-6540(B). We agree.
The Court previously addressed the same statutory procedural phrase in Commonwealth v. Rafferty , 241 Va. 319, 402 S.E.2d 17 (1991). Rafferty involved Code § 18.2-268(V), now Code § 18.2-264.4, which addresses the appellate procedure to be followed when a person refuses to subject himself to the taking of a blood or breath sample pursuant to the implied consent law. Like Code § 3.2-6540(B), that section provides that "[t]he procedure for appeal and trial ... shall be the same as provided by law for misdemeanors." Id . at 322, 402 S.E.2d 17 () (citation omitted); see also Code § 18.2-268.4(B). Addressing the import of that language, in Rafferty we held that unlawful refusal charges were "administrative and civil in nature." Id . at 323, 402 S.E.2d 17. In addressing which court had jurisdiction of that civil proceeding, we stated that although the Code section at issue Id . at 323-24, 402 S.E.2d 17. Applying our rationale in Rafferty , an appeal under Code § 3.2-6540(B) is civil in nature and, by operation of Code § 8.01-670, this Court has appellate jurisdiction.2
Frouz argues that the circuit court erred in finding that Blue was a dangerous dog under Code § 3.2-6540(A) and that she was liable for restitution to Kern as Blue’s custodian under Code § 3.2-6540(B). As pertinent to this appeal, Code § 3.2-6540(A) provides, in part:
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