Opinion
14-P-1987
01-06-2016
BRANT VINER & another v. TOWN OF NORTHBOROUGH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises out of an April 14, 2011, decision of the defendant, the town of Northborough (town), whose board of selectmen (board) found, pursuant to G. L. c. 140, § 157, that the plaintiffs' three Airedale Terriers, named "Phineas," "Phoebe," and "Boudicca" (collectively, the dogs), are a nuisance and placed conditions on the plaintiffs to mitigate the nuisance. The plaintiffs appealed from the town's decision to the District Court as unreasonable and arbitrary. After a two-day bench trial, a District Court judge affirmed the town's decision and dismissed the plaintiffs' complaint. The plaintiffs then sought certiorari review of the District Court decision pursuant to G. L. c. 249, § 4, in the Superior Court. A Superior Court judge vacated the District Court judgment and remanded the matter for rehearing at which the proper de novo standard of review would apply. The town then filed this appeal, arguing that the Superior Court judge improperly found that the District Court judge erred in conducting his de novo review. We reverse.
We note that the plaintiffs, in their brief, raise "additional issues." However, the plaintiffs did not file a cross appeal and, as a result, these additional issues need not be addressed.
Background. We recite the facts from the judges' findings of fact. The plaintiffs, Brant Viner and Margaret Harling, are husband and wife and own the dogs. The dogs weigh from fifty pounds to seventy pounds. The plaintiffs and the dogs reside in an exclusively residential neighborhood in the town where many residents walk or jog on the streets.
Phineas weighs sixty-five pounds, Phoebe weighs seventy pounds, and Boudicca weighs fifty pounds.
The dogs have a long history of being unrestrained and attacking other dogs and people. In early 2006, the dogs were unrestrained outside, barking, and one of them attacked and bit Sandy Lin's dog. Lin left a letter in the plaintiffs' mailbox about the attack. Again, in April of 2007, the dogs were unrestrained outside, but only one of the dogs attacked Lin's dog. The dog bit Lin's dog so severely that she could see the bone. In December of 2006, Phineas ran onto the street and attacked and bit an Irish Setter on the left leg. The dog was owned by another neighbor and was attacked when walking by the plaintiffs' property. On May 5, 2007, Janice Brown's dog was attacked by one of the dogs when it jumped through an underground electric fence and ran onto the public street. A neighbor, Dan Derby, also had his dog bitten in 2007 by one of the dogs.
The injury required veterinarian care for which the plaintiffs paid.
The injury required veterinarian care for which the plaintiffs paid.
In May of 2007, the board held a public hearing relating to Phineas's attacking or injuring the neighbors' dogs. The board issued an order (2007 order) to the plaintiffs in accordance with G. L. c. 140, § 157, which found Phineas to be a nuisance. The 2007 order required the installation of a fence around the plaintiffs' property "high enough to contain" Phineas, the supervision of Phineas, and the secure restraint of Phineas on a leash if he left the plaintiffs' property. The plaintiffs constructed a four-foot-high, stockade-type fence in response to the 2007 order.
At the time of the District Court hearing, G. L. c. 140, § 157, as appearing in St. 1978, c. 478, § 73, provided that, with regard to the review of the order concerning his or her dog(s), "[w]ithin ten days after such order the owner or keeper of such dog may bring a petition in the district court . . . , addressed to the justice of the court, praying that the order may be reviewed by the court, or magistrate thereof, and . . . the magistrate shall review such action, hear the witnesses and affirm such order unless it shall appear that it was made without proper cause or in bad faith, in which case such order shall be reversed. Any party shall have the right to request a de novo hearing on the petition before a justice of the [district] court. The decision of the court shall be final and conclusive upon the parties."
When the plaintiffs failed to maintain the fence, it soon became inadequate to comply with the 2007 order. In May or June of 2010, Phineas bit the face of the dog of Thomas Sullivan. Around Thanksgiving of 2010, Phineas nipped Sullivan. On or about February 11 or 12, 2011, Sullivan was walking by himself when he was chased by the dogs. Harling, who was outside by the fence of her property, witnessed this incident and asked Sullivan not to call the dog officer.
On February 15, 2011, Sullivan and his dog, Cody, were attacked by the dogs about one hundred and fifty yards from the plaintiffs' house. Harling saw Phoebe and Phineas go over the fence, while Boudicca ran down the street and jumped on Sullivan. Phineas knocked down Sullivan and then grabbed Cody and shook him by the neck apparently in an attempt to break it. Sullivan then punched Phineas in the nose. Sullivan proceeded to lay on top of Cody attempting to protect him. Phineas grabbed Sullivan's right arm. Phoebe bit Cody's rectum. Phineas grabbed Cody and tried to pull him away from Sullivan by his thigh. Harling came out and grabbed the two dogs. Independent witnesses observed the incident. Debra Baldelli was driving home; she observed the incident and corroborated it. Steven Pellegrino was on his trash removal route when he saw Sullivan and Cody being attacked by the dogs. Pellegrino blew his air horn in an attempt to get the dogs away from Sullivan while he was on the ground protecting Cody, but the dogs would not back away until Harling came down the street. Cody required stitches around the rectum area because it was ripped open by Phoebe. Additionally, Cody required stitches on each side of his neck from the wounds inflicted by Phineas. Sullivan suffered scratches to his face as well as black and blue marks on his arm. Sullivan, and other neighbors, began arming themselves for protection from the plaintiffs' dogs.
As a result of the incidents following the 2007 order, the town dog officer issued an order, sent by letter dated February 16, 2011, to the plaintiffs stating that the dogs must be confined either in their property in a six-foot-high chain-link pen or be restrained by a capable adult via a leash until the board could review the case. The order from the dog officer also listed eight separate violations of the town's leash by-law and the 2007 order. The board scheduled a hearing for April 11, 2011, to hear a complaint filed by Sullivan. On April 7, 2011, four days before the hearing, Marjorie Markson's dog was attacked by Phineas, who was off-leash, requiring her dog to get several stitches as a result of the attack.
On April 11, 2011, the board held a hearing concerning the restraint and the possible disposal of the dogs. The plaintiffs were represented by counsel and spoke on their own behalf. The board issued an order (2011 order) to the plaintiffs, in accordance with G. L. c. 140, § 157, which found the dogs to be a nuisance by reason of their vicious disposition and placed conditions on the plaintiffs to mitigate the nuisance. The conditions are as follows:
"1. Require the installation of an 8' high chain link fence, with the portion facing West Street being 8' high, solid privacy fence and/or chain link fence with privacy strips to contain the three Airedale Terriers, 'Phineas,' 'Phoebe,' and 'Boudicca,' and any other dog owned by Brant Viner and Margaret Harling of 85 West Street.
"2. Require that said fencing radiate from the house, with a minimum set back from West Street of at least 125 feet, extending off the northeast side entry no more than 100 feet, extending off of the opposite side (off the southeast rear corner of the house) no more than 100 feet, and extending from the back of the house eastward no more than 200 feet and said fencing may extend approximately 200 feet to the front of the house to enclose an area that contains the 'Y' portion of the paved drive, provided that the 125 foot set back from West Street is maintained.
"3. The dogs should be under the supervision of an adult that can control said dogs when they are in the fenced area.
"4. The current fence must be maintained and functional at all times.
"5. 'Phineas' is to be muzzled any time he is outside of the house, including when he is in the fenced area described above by a muzzle that is recommended and approved by the dog officer.
"6. If any of the dogs are removed from this fenced area, including if they are removed to other areas of the Viner property, they must be muzzled and leashed at all times and under the control of a capable adult.
"7. Until the permanent fence is installed, the dogs must be contained and/or controlled by a leash and a capable adult.
"8. The fence must be inspected semi-annually from the point of installation. A letter certifying the semi-annual inspection will be submitted by the property owners to the Dog Officer and the Board of Selectmen."
Discussion. The town argues that the Superior Court judge improperly found that the District Court judge erred in conducting his de novo review. We agree.
The Superior Court judge, pursuant to G. L. c. 249, § 4, completed a certiorari review of the District Court decision. In a certiorari review, the Superior Court is limited to correcting "substantial errors of law apparent on the record adversely affecting material rights." FIC Homes of Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681, 684 (1996), quoting from Commissioner of Rev. v. Lawrence, 379 Mass. 205, 208 (1979). The Superior Court "may rectify only those errors of law which have resulted in manifest injustice to the plaintiff or which have adversely affected the real interests of the general public." Massachusetts Bay Transp. Authy. v. Auditor of the Commonwealth, 430 Mass. 783, 790 (2000), quoting from Carney v. Springfield, 403 Mass. 604, 605 (1988).
The Superior Court judge incorrectly determined that the District Court judge erred in his application of a de novo review. Black's Law Dictionary defines a hearing de novo as a "new hearing of a matter, conducted as if the original hearing had not taken place" and requires a "reviewing court's decision of a matter anew, giving no deference to a lower court's findings" (emphasis supplied). Black's Law Dictionary 789 (9th ed. 2009). See Kurlander v. School Comm. of Williamstown, 16 Mass. App. Ct. 350, 355 (1983) ("the findings of fact of the school committee carry no evidentiary weight"; "'de novo' reads as a mandate to determine anew whether the charge or charges are substantiated"). It is clear that a de novo review is used to ensure that there is a significant factual basis to determine what is needed to implicate the statute.
The District Court judge did not err when he independently determined, pursuant to a trial on the evidence, that there was a significant basis to implicate G. L. c. 140, § 157, finding the dogs a nuisance and ruling that the 2011 order was proper. See Durbin v. Selectmen of Kingston, 62 Mass. App. Ct. 1, 6, 13-14 (2004) (no substantial legal error when District Court judge affirmed board's order based on de novo review of evidence).
The District Court judge conducted a two-day bench trial which consisted of the testimony of sixteen witnesses as well as various exhibits. The District Court judge made independent findings of fact based on the totality of evidence presented to him. Furthermore, the District Court judge stated, "Under a de novo hearing on the petition pursuant to G. L. c. 140, § 157, I heard the evidence and found the facts without giving any evidentiary weight to the factual findings of the Town Selectmen or the clerk-magistrate who reviewed the Town's order initially," as well as, "[U]pon hearing the testimony of the witnesses and reviewing the evidence de novo, I find by a preponderance of the evidence that the respondent Town did not act without proper cause and in bad faith or unreasonably, arbitrarily and contrary to law by abating the nuisance caused by the vicious disposition and disturbances of the petitioners' three dogs." Moreover, not only was the District Court judge well within his discretion to affirm the 2011 order, but the judge also stated, "If I were to formulate an order with these facts without any deference to the Town's Order, I would have imposed the same or similar eight terms and conditions contained in the Town's Order, but perhaps even more stringent than the Town."
We recognize and acknowledge that the District Court judge erred in his understanding of which party bore the burden of proof at trial. We have thoroughly reviewed the transcript of the trial and have determined that the plaintiffs have suffered no prejudice as a result of this error. All the evidence was presented, and cross-examination was allowed and pursued. There was no substantial error of law that resulted in manifest injustice to the plaintiffs.
We also recognize and acknowledge that the District Court judge owed no deference to the 2011 Order. However, the judge's adoption of that order was certainly within his discretion and consistent with the de novo presentation of the evidence. Again, the plaintiffs suffered no injustice because the judge, in his own words, would have considered even more stringent conditions.
Conclusion. The judgment is reversed, and the case is remanded to the Superior Court where a new judgment shall enter affirming the judgment of the District Court.
The Superior Court judge did not reach the issue of John Coderre's testimony in the District Court. Again we recognize and acknowledge that the District Court judge erred by allowing this testimony at trial to determine if the actions of the board were arbitrary and capricious. This was not the standard of review at a de novo hearing. However, we have thoroughly reviewed the transcript of the trial and have determined that the plaintiffs have suffered no prejudice as a result of this error. Coderre's testimony consisted mostly of background information and the cross-examination focused primarily on the conditions imposed by the board. Although parts of this testimony were unnecessary for a de novo review, it was also beneficial to the judge in determining proper conditions to control the dogs.
So ordered.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 6, 2016.