|Alternatives Research & Development Foundation v. Glickman||101 F.Supp.2d 7 (D.D.C.,2000)||
In this case, the plaintiffs, a non-profit organization, a private firm and an individual, alleged that the defendants, the USDA and APHIS violated the mandate of the Animal Welfare Act (AWA) by promulgating regulations that exclude birds, mice and rats from the definition of “animal” under the Act. Defendants moved to dismiss, arguing that all three plaintiffs lack standing to bring suit. Defendants also moved to dismiss on the grounds that the exclusion of the three species is within the agency's Congressionally delegated discretion, not subject to judicial review. The court denied defendant's motion, holding that based on Lujan , defendants challenge to standing failed. Further, the AWA does not grant the USDA "unreviewable discretion" to determine what animals are covered under the AWA.
|Toney v. Glickman||101 F.3d 1236 (8th Cir., 1996)||Plaintiffs were in the business of selling animals to research facilities. The Administrative Law Judge (ALJ) found that they had committed hundreds of violations of the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq. The ALH then imposed what was, to that point, the harshest sanction, $200,000, in the history of the Act. The Judicial Officer affirmed the ALJ's findings and denied the Plaintiffs' request to reopen the hearing for consideration of new evidence. While the 8th Circuit affirmed most of these findings, it held that the evidence did not support all of them. Accordingly, the court remanded the matter to the Department for redetermination of the sanction. The court also affirmed the Judicial Officer's refusal to reopen the hearing and denied the Plaintiffs' Request for Leave to Adduce Additional Evidence. The Plaintiffs were free, however, to seek leave to offer this additional evidence on remand to the extent it was relevant to the sanction.|
|People v. Baniqued||101 Cal.Rptr.2d 835 (Cal.App.3 Dist.,2000).||
Defendant appealed from a judgment of the Superior Court of Sacramento County, California, ordering their conviction for cockfighting in violations of animal cruelty statutes. The court held that roosters and other birds fall within the statutory definition of "every dumb creature" and thus qualify as an "animal" for purposes of the animal cruelty statutes.
|Faraci v. Urban||101 A.D.3d 1753 (N.Y.A.D. 4 Dept.)||
In this New York case, the plaintiff sought damages for injuries his son sustained after the child was bitten by a dog in a house owned by defendant Urban, but occupied by Defendant Buil (the dog's owner). Defendant Urban appeals an order denying her motion for summary judgment dismissing the complaint. Defendant Urban failed to demonstrate as a matter of law that the dog did not have vicious tendencies because defendant's own submissions showed that the dog had previously growled at people coming to the door. However, summary judgment was appropriate here because the evidence failed to show that defendant knew or should have known of the dog's alleged vicious propensities.
|Schindler v. Mejias||100 A.D.3d 1315 (N.Y.A.D. 3 Dept., 2012)||
This appeal is an appeal of the denial of defendant's motion for summary judgment in a defamation action. Plaintiff, an attorney, brought an action against Hector L. Mejias Jr., an employee of defendant Ulster County Society for the Prevention of Cruelty to Animals, claiming that Mejias falsely accused him of misrepresenting himself as the Ulster County District Attorney during a sworn deposition. The statement occurred during an incident at the SPCA where Plaintiff-Schindler was trying to pick up a dog owned by his client. The particular issue on appeal is whether the supreme court erred in determining that Mejias's supporting deposition constitutes libel per se. The court found that the alleged act was sufficiently egregious because such a claim would suggest professional misconduct on an attorney's part and invites both disciplinary action and damage to an attorney's professional reputation. Further, defendants failed to meet their burden of showing an absence of malice. The order was affirmed.
|Westfall v. State||10 S.W.3d 85 (Tex. App. 1999)||
Defendant convicted of cruelty for intentionally or knowingly torturing his cattle by failing to provide necessary food or care, causing them to die. Defendant lacked standing to challenge warrantless search of property because he had no expectation of privacy under open fields doctrine.
|Free v. Jordan||10 S.W.2d 19 (Ark. 1928)||
In a replevin action to recover possession of a lost dog from its finder, the court reversed and remanded the case so a jury could determine whether the statute of limitations was tolled due to the defendant's alleged fraudulent concealment of his possession of the dog.
|Banasczek v. Kowalski||10 Pa. D. & C.3d 94 (1979)||
Edward Banasczek (plaintiff) instituted an action in trespass against William Kowalski (defendant) for money damages resulting from the alleged shooting of two of plaintiff's dogs. The court held the following: “[T]he claim for emotional distress arising out of the malicious destruction of a pet should not be confused with a claim for the sentimental value of a pet, the latter claim being unrecognized in most jurisdictions. Secondly we do not think, as defendant argues, that the owner of the maliciously destroyed pet must have witnessed the death of his or her pet in order to make a claim for emotional distress.” Pennsylvania has summarily rejected a claim for loss of companionship for the death of a dog.
|Hohenstein v. Dodds||10 N.W.2d 236 (Minn. 1943)||This is an action against a licensed veterinarian to recover damages for his alleged negligence in the diagnosis and treatment of plaintiff's pigs. Plaintiff alleged defendant-veterinarian negligently vaccinated his purebred pigs for cholera. The court held that a n expert witness's opinion based on conflicting evidence which he is called upon to weigh is inadmissible. Further, a n expert witness may not include the opinion of another expert witness as basis for his own opinion.|
|Yuzon v. Collins||10 Cal.Rptr.3d 18 (Cal.App. 2 Dist.,2004)||
In this California case, a dog bite victim sued a landlord, alleging premises liability in landlord's failure to guard or warn against tenants' dangerous dog. On appeal from an order of summary judgment in favor of the landlords, the Court of Appeal held that the landlord owed no duty of care, as he had no actual knowledge of dog's dangerous propensities and an expert witness's declaration that the landlord should have known of the dog's vicious propensities was insufficient to warrant reconsideration of summary judgment ruling. The landlord's knowledge that tenants may have a dog because it is allowed through a provision in the lease is insufficient to impute liability where the landlord has no knowledge of any previous attacks or incidents.
|People v. Tinsdale||10 Abbott's Prac. Rept. (New) 374 (N.Y. 1868)||
This case represents one of the first prosecutions by Mr. Bergh of the ASPCA under the new New York anti-cruelty law. That this case dealt with the issue of overloading a horse car is appropriate as it was one of the most visible examples of animal abuse of the time. This case establishes the legal proposition that the conductor and driver of a horse car will be liable for violations of the law regardless of company policy or orders.Discussed in Favre, History of Cruelty
|State v. Murphy||10 A.3d 697 (Me.,2010)||
Defendant appeals her convictions for assault of an officer, refusing to submit to arrest, criminal use of an electronic weapon, and two counts of cruelty to animals. In October 2009, a state police trooper was dispatched to defendant's home to investigate complaints that she was keeping animals despite a lifetime ban imposed after her 2004 animal cruelty conviction. The appellate found each of her five claims frivolous, and instead directed its inquiry as to whether the trial court correctly refused recusal at defendant's request. This court found that the trial court acted with "commendable restraint and responsible concern for Murphy's fundamental rights," especially in light of defendant's outbursts and provocations.
|Collier v. Zambito||1 N.Y.3d 444 (N.Y. 2004)||
Infant child attacked and bit by dog when he was a guest in the owner's home. After defenses motion for summary judgment was denied, the Appellate Court reversed, and this court affirms.
|Kanoa Inc., v. Clinton||1 F. Supp. 2d 1088 (1998)||
Plaintiff cruise company filed a motion for a temporary restraining order and a preliminary injunction to halt scientific research of the defendant government, alleging standing under the National Environmental Policy Act ("NEPA"), the Marine Mammal Protection Act ("MMPA"), and the Endangered Species Act ("ESA").
|People v. Berry||1 Cal. App. 4th 778 (1991)||
In a prosecution arising out of the killing of a two-year-old child by a pit bulldog owned by a neighbor of the victim, the owner was convicted of involuntary manslaughter (Pen. Code, § 192, subd. (b)), keeping a mischievous animal (Pen. Code, § 399), and keeping a fighting dog (Pen. Code, § 597.5, subd. (a)(1)). The Court of Appeal affirmed, holding that an instruction that a minor under the age of five years is not required to take precautions, was proper. The court further held that the trial court erred in defining "mischievous" in the jury instruction, however, the erroneous definition was not prejudicial error under any standard of review. The court also held that the scope of defendant's duty owed toward the victim was not defined by Civ. Code, § 3342, the dog-bite statute; nothing in the statute suggests it creates a defense in a criminal action based on the victim's status as a trespasser and on the defendant's negligence.
|Unified Sportsmen of Pennsylvania ex rel. their members v. Pennsylvania Game Com'n||03 A.2d 117 (Pa.Cmwlth., 2006)||
A Pennsylvania association consisting of hunters and outdoorsmen and members of the association filed a complaint/request for writ of mandamus against the Pennsylvania Game Commission, Department of Conservation and Natural Resources (DCNR), and various state officials, seeking an order directing Commission and DCNR to provide the data and information on which the Commission relied in setting "harvest" figures for Pennsylvania's deer population. Before this Court in our original jurisdiction are the preliminary objections of the Pennsylvania Game Commission , the Pennsylvania Department of Conservation and Natural Resources, and certain Commonwealth officers (collectively, Respondents). The court first found that the Sportsmen indeed have standing, conferred both by statute and under the under the traditional substantial-direct-immediate test. However, Respondent Game Commission's demurrer was sustained, primarily because the court agreed that due to the ambiguous nature of Sportsmen's pleading, it is not possible to discern a legal theory to support the relief requested. Further, the court sustained Respondent's claim that the DCNR, its Secretary, and the state's Governor were not proper parties to association's suit. Despite these procedural defects, the court did not dismiss the Sportsmen's action, and instead allowed them to amend their complaint within 30 days of this order.
|Strickland v. Medlen||-397 S.W.3d 184 (Tex. 2013)||
The Supreme Court of Texas considers petitioner's appeal from the court of appeals' decision holding that a dog owner may recover intangible loss-of-companionship damages in the form of intrinsic or sentimental-value property damages. The facts underlying the action involved the improper euthanization of respondents' dog, Avery. They sued for Avery's “sentimental or intrinsic value” because the dog had little or no market value and was irreplaceable. The trial court found that Texas law barred such damages, and dismissed the suit with prejudice. The Court of Appeals of Texas became the first court to hold that a dog owner may recover intangible loss-of-companionship damages in the form of intrinsic or sentimental-value property damages. The Supreme Court reverses that decision here, ruling that dogs are ordinary property, with damages limited to market value, and noneconomic damages based in relational attachment are not permitted.
|Flathead-Lolo-Bitterroot Citizen Task Force v. Montana||---- F.Supp.3d ----, 2023 WL 8064884 (D. Mont. Nov. 21, 2023)||This case was brought by several environmental organizations against the Montana Fish and Wildlife Commission to challenge the approval or regulations that authorize the trapping and snaring of wolves within grizzly bear habitat in Montana. The grizzly bear is listed as threatened under the Endangered Species Act (ESA), and the Montana trapping regulations allow wolf hunters to use foothold traps large enough to capture grizzly bears. Grizzly bears rely heavily on their front and back paws to hunt for food, so crippling their limbs with these traps will lead to the incidental killing of grizzly bears from starvation. Plaintiffs contend that allowing the trapping of wolves in grizzly bear territory is in violation of § 9 of the ESA, as it will lead to the incidental unlawful taking of grizzly bears. Plaintiffs sought a preliminary injunction to enjoin the start of the wolf trapping season, raised questions on the merits, and established a reasonable threat of harm to grizzly bears if the trapping and snaring of wolves is allowed in their habitat. On the merits of the claim, although defendants could prove that no grizzly bears had been killed with such traps in Montana for several years, the court found that plaintiffs succeeded on the merits as there was evidence of grizzly bears being killed by such traps in adjacent states. Plaintiffs also showed that there was a likelihood of harm to grizzly bears, with evidence that these traps will lead to the death of grizzly bears. The court granted plaintiff’s motion for preliminary injunction in part and denied in part, and enjoined the Montana Fish and Wildlife Commission from authorizing wolf trapping and snaring.|
|People for Ethical Treatment of Animals v. Bd. of Supervisors of Louisiana State Univ.||--- So.3d ----, 2023 WL 6119352 (La.App. 1 Cir., 2023)||Plaintiff-appellee, People for the Ethical Treatment of Animals (PETA), began this case by issuing eight public records requests to defendant-appellant Louisiana State University (LSU). PETA made these records seeking veterinary care and disposition records for birds used in LSU’s laboratories. For the first seven of these requests, LSU did not produce the records, so PETA filed a petition for a writ of mandamus, declaratory judgment, and injunctive relief pursuant to the Public Records Law. LSU denied PETA’s allegations and did not produce the records, so PETA made an eighth records request, which LSU responded to with an assertion that the requested records were exempt from disclosure. After a hearing, the trial court issued an oral ruling in favor of PETA and granted some of the records that PETA requested. LSU appealed. On appeal, the court considered whether the records sought by PETA were covered under the Public Records Law. The court first found that LSU qualifies as a research facility under the Animal Welfare Act, and needs to comply with federal law and maintain and produce records relating to research animals, so long as the records being sought would not be unduly burdensome to produce. The court held that the portions of the judgment ordering LSU to produce veterinary daily observation reports, veterinary daily health check records, and other veterinary records were affirmed. However, some of the information sought, including private communications between LSU employees, trapping records, and some videographic records, were considered unduly burdensome to compel LSU to produce. The court also amended a portion of one of the requests to make it more specific and narrow the documentation that LSU would need to produce. Accordingly, the court affirmed in part, reversed in part, amended in part, and reversed in part.|
|Harby v. Harby||--- So.3d ----, 2021 WL 5344799 (Fla. Dist. Ct. App. Nov. 17, 2021)||This Florida case involves an appeal of a final judgment of dissolution of marriage. With respect to animal law, the wife appealed the trial court's distribution of family dogs, Liberty and Nico, to the former husband. According to testimony, the dogs were bonded to each other. The former wife testified that the family adopted Liberty "to be an emotional support dog" and was her constant companion. The former wife testified that she cared for the dogs when they were adopted in 2013 and 2014 until the parties separated in 2017. Since that separation, the dogs have been in the husband's possession and care. The trial court determined that the dogs were marital property and that the wife appeared to be in good health with no physical or mental disabilities. Further, both parties agreed the dogs should not be separated from each other and the court found the dogs had been in the husband's possession since the parties separated. On appeal, the wife argues that the trial court's distribution of the family dogs to Former Husband was arbitrary, capricious, and unsupported by the record. In particular, the wife contends that one of the dogs is her emotional support animal and former husband expressed no desire or claim for the dogs in testimony. The court first observed that Florida is not one of the handful of states with statutes that give pets a special property status in distribution of marital assets. Instead, animals are considered personal property. Here, the court found both parties have cared for the dogs at times and the husband cared for them after the parties separated in 2017. And, while the court found that Liberty was "emotionally comforting," there was no evidence that the former wife had a disability and that Liberty provided emotional support to alleviate an effect of such disability. Thus, the role Liberty played was to provide comfort and companionship like most household pets. Since the trial court also considered each party's sentimental interest in the pets, including the children's attachment since they resided primarily with the former husband, there was no showing that the court abused its discretion in awarding the dogs to former husband. Thus, the appellate court concluded that the trial court acted within its discretion by awarding the family dogs to the former husband.|
|Queen v. State||--- So.3d ----, 2021 WL 4471099 (Miss. Sept. 30, 2021)||Defendant Tommie Queen was convicted of three counts of dog fighting contrary to Mississippi law. The resulting conviction began with in 2017 after a sheriff's officer received a call about dogs barking and possibly fighting. After being dispatched to defendant's property, the officer encountered multiple dogs on chains and dogs that were actively fighting each other. The officer obtained a search warrant and seized numerous items including heavy logging chains, bite sticks, intravenous (IV) bags containing saline, medicine bottles, vials of vitamins, muscle milk and other muscle-building items, several scales, and a treadmill. Approximately five or six badly injured dogs were taken to a veterinarian and humanely euthanized. The veterinarian visited the property the next day and euthanized three more dogs that were seriously injured. Defendant was convicted on three of the nine indicted counts of animal fighting and sentenced to three years on each count to run consecutively. On appeal here, defendant raised three issues: (1) whether the trial court erred by tendering Kyle Held as an expert in the field of animal cruelty and dog fighting; (2) whether the State presented sufficient evidence to convict Queen of dog fighting; and (3) whether the trial court erred by denying Queen's motion to recuse. As to the first issue on qualification of the expert witness, the proffered expert, Kyle Held, had been employed by the ASPCA for approximately ten years as the director of investigations. Not only was Held certified by the National Animal Control Association, but he had investigated dog fighting operations "probably a few hundred" times according to his testimony. This included the largest organized dog fighting seizure in history. Moreover, Held indicated he testified in approximately 100 animal cruelty or animal fighting cases and has been qualified as an expert six times in previous dog fighting cases. While defendant argued that Held should not be qualified as an expert because he did not hold any college degrees, this court found that argument without merit. Defendant's second argument challenged the sufficiency of the prosecution's evidence to support conviction. In particular, defendant notes that the evidence was only circumstantial and no direct evidence showed that defendant was present when the dogs were fighting and injured. However, the court noted that defendant did not dispute that he was the owner of the property where the dogs were recovered (and over 40 other dogs found) and evidence of dog fighting (heavy logging chains, bite sticks, intravenous bags, scales, weight gain powders, treadmills, etc.) were found there. Based on Held's observations, training, and experience, Queen's property was used as a dog-fighting training yard. Further, the veterinarian who performed euthanasia on the dogs testified that there were bite wounds consistent with dog fighting This Court observed that it previously recognized that things like treadmills, dietary supplements, and break sticks of indicative of dog fighting enterprises. Finally, the way the dogs were tied out in the yard with the chains and minimal space between the dogs is “typical on almost every yard that [he] had been on” and was indicative of dog fighting training. Defendant's last contention is that the trial court erred by denying his motion for recusal because Judge Debra Blackwell was previously employed as an assistant attorney general in the district where defendant's indictment was returned. The court found no evidence that created a reasonable doubt as to the validity of the presumption that Judge Blackwell was both qualified and unbiased. Defendant's convictions and sentences were affirmed.|
|Houk v. State||--- So.3d ----, 2021 WL 1685627 (Fla. Dist. Ct. App. Apr. 29, 2021)||Appellant Crystal Houk challenges her convictions and sentences for animal cruelty and aggravated animal cruelty on several grounds. Appellant contends her dual convictions for those crimes violate double jeopardy because animal cruelty and aggravated animal cruelty are degree variants under section 775.021(4)(b)2. The conviction stems from Houk leaving her dog Gracie May in a car in a Walmart parking lot with the windows closed on a hot, humid day in Florida for over an hour. Apparently, Appellant had pressed a PVC pipe against the accelerator to keep the car accelerating since there was something wrong with the air conditioner. When employees gained entry to her vehicle, they discovered the A/C was actually blowing hot air and the dog was in great distress. Gracie died soon thereafter from heat stroke. A postmortem examination revealed her internal temperature was above 109.9 degrees. Houk was charged with aggravated animal cruelty and animal cruelty, tried by jury, and convicted. She was sentenced to concurrent terms of thirty-six months of probation on Count 1 and twelve months of probation on Count 2, each with a condition that she serve thirty days in jail. On appeal here, this court first found that the offenses of animal cruelty and aggravated animal cruelty satisfy the Blockburger same elements test and do not fall under the identical elements of proof or subsumed-within exceptions. However, as to the degree variant exception, the court agreed with Appellant that the offense of animal cruelty and aggravated animal cruelty are not based on entirely different conduct and a violation of one subsection would also constitute a violation of the other. Additionally, while another statutory section allows the charging of separate offenses for multiple acts or acts against more than one animal, the section does not authorize "the charging of separate offenses or the imposition of multiple punishments when a single act against one animal satisfies both subsections." Accordingly, the court agreed with Appellant and reversed her conviction for animal cruelty (while keeping the higher degree conviction of aggravated cruelty).|
|Estis v. Mills||--- So.3d ----, 2021 WL 1396598 (La.App. 2 Cir. 4/14/21)||The Estis' sued the Mills for the wrongful killing and disposal of the Appellants’ German Shepherd. On appeal, the Appellants argue that the district court erred in permitting the Appellees to amend their original answer to now include an affirmative defense of immunity pursuant to La. R.S. 3:2654, which would relieve the Appellees of liability. Further, the Appellants contend that the district court erred in granting the Appellees’ motion for summary judgment, asserting that there remain genuine issues of material fact, and notwithstanding liability for the death of the dog, the court erred in dismissing the Appellees’ claim for conversion. The parties were neighbors whose property was separated by an enclosed pasture where the Mills used to keep horses. Despite requests from Mills, the Estis' dogs would enter the pasture and harass the horses. In 2017, Mills discovered the dog yet again in the pasture with the horses, so Mr. Mills shot, killed, and disposed of the dog. Subsequently, the Estis family filed suit seeking damages for the intentional killing of the dog and disposing of the dog in a bayou approximately ten miles away. The lower court granted a motion in favor of the Mills agreeing that they had immunity from suit under La. R.S. 3:2654.1. On appeal to this court, the Estises argue that the Mills waived the immunity under the statute because they failed to affirmatively plead the defense in their answer to the pleadings. This court found that immunity had not been affirmative pled as required by statute. Consequently, the Mills received permission to amend their answer and plead the immunity provision. Following granting of the Mills' second motion for summary judgment based on the immunity statute, the Estises appeal that decision. As to Estis' argument that leave to amend the answer was erroneously granted, this court first noted that determination whether to allow pleadings to be amended is discretionary and will not be reversed absent an abuse of discretion. The court found no evidence that there was bad faith in the decision to the amend the pleadings like delay. Further, there was no demonstration of prejudice from the granting of an amended answer. As to Estis' claim that summary judgment was erroneously granted, the court discussed a photograph that was submitted in evidence support showing a horse grazing with its back presented "indifferently" to the dog. The Mills countered with the evidence of an independent eyewitness to the incident who asserted that the dog harassed the horses. The court noted that issues of the credibility of evidence have no place in a summary judgment appeal. As a result, this court found that the lower court judge's statements that, in effect, weighed the credibility of the photograph versus the testimony of the witness were inappropriate. Thus, the lower court erred in granting the motion for summary judgment. Finally, the court evaluated Estis' conversion claims for the disposal of the dog's dead body. This court said that, [i]f the court finds that the killing of the dog falls under La. R.S. 3:2654, then the claim for conversion of the dog's body does not survive. However, if there were personal items on the dog at the time of the killing, such as a tracking collar or items of other value, then a conversion claim can be made for those items. If the court determines that the immunity statute does not apply, then the claim for conversion and any other applicable damages may apply." Thus, the trial court's judgment to allow the motion to amend the pleadings was affirmed, the granting of the summary judgment was reversed, and the dismissal of Estis' claims for conversion was reversed and remanded for further proceedings.|
|Archer v. State||--- So.3d ----, 2020 WL 7409970 (Fla. Dist. Ct. App. Dec. 18, 2020)||Defendant Tim Archer pleaded no contest to felony animal cruelty in Florida. Archer's dog Ponce apparently made a mess in Archer's house and, when Archer "disciplined" Ponce, the dog bit him, leading to Archer violently beating and stabbing the dog to death. Public outcry over mild punishment in the state for heinous acts of animal abuse led to "Ponce's Law," which enhanced penalties (although it did not retroactively apply to Archer). As a condition of Archer's plea agreement, both parties stipulated to a restriction on future ownership of animals as part of Archer's probation. On appeal here, Archer argues that the trial court erred in imposing these special conditions of probation. With regard to special condition 34 and 35, which prohibits him from owning any animal for the duration of his life and prohibits him from residing with anyone who owns a pet, Archer seeks clarification whether this prohibits him from residing with his ex-wife and children who own two cats, respectively. The court found that condition 35 would only be in effect for his three-year probationary term. Additionally, the court found condition 34 that imposes a lifetime ban on ownership exceeded the trial court's jurisdiction regardless of the open-ended language of Ponce's law. The animal restriction is not "a license to exceed the general rule that prohibits a court from imposing a probationary term beyond the statutorily permissible term, which in this case is five years." The case was remanded to the trial court to modify the conditions of probation to be coextensive with the probationary term.|
|Dancy v. State||--- So.3d ----, 2020 WL 240457 (Miss. Jan. 16 , 2020)||The Justice Court of Union County found Michael Dancy guilty of three counts of animal cruelty and ordered the permanent forfeiture of Dancy’s six horses, four cats, and three dogs. Dancy appealed to the circuit court. The circuit court ordered that the animals be permanently forfeited and found Dancy guilty. The circuit court also ordered Dancy to pay $39,225 for care and boarding costs for the horses. Dancy subsequently appealed to the Supreme Court of Mississippi. Essentially, Dancy failed to provide adequate shelter, food, and water for the animals. The Court found that the circuit court properly released the animals to an animal protection organization. The Court also found that the reimbursement order was permissible. Two of Dancy’s three convictions were for violations of the same statute regarding simple cruelty, one for his four cats and one for his three dogs. The Court held that, according to the statute's plain language, Dancy’s cruelty to a combination of dogs and cats occurring at the same time "shall constitute a single offense." Thus, the State cannot punish Dancy twice for the same offense without violating his right against double jeopardy. For that reason, the court vacated Dancy’s second conviction of simple cruelty. The court affirmed the permanent forfeiture and reimbursement order and his other cruelty conviction.|
|Estis v. Mills||--- So.3d ----, 2019 WL 3807048 (La. App. 2 Cir. August 14, 2019)||On September 11, 2017, Plaintiffs, Catherine Estis, Samuel Estis, and Thuy Estis brought this action against the Defendants, Clifton and Kimberly Mills, seeking damages for the shooting of the Plaintiff’s ten-month-old German Shepherd puppy, Bella. The Plaintiffs alleged that the Defendants shot Bella, did not disclose to them that Bella had been shot, and dumped her body over ten miles away. Defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of Defendants. The Defendants argued that they fell within the immunity afforded by a Louisiana statute that gives immunity to anyone who kills a dog that is not on the property of the owner and is harassing, wounding, or killing livestock. The Defendants alleged that Bella, the puppy, was harassing their horses. The Plaintiffs argued that the immunity afforded by the statute needed to be affirmatively pled by the Defendants and that the Defendants waived such immunity by failing to assert the affirmative defense in their original answer or any subsequent pleading. The Plaintiffs further argued that the motion for summary judgment would not have been granted if it were not for the immunity protections. The Court ultimately held that the Defendants failed to affirmatively plead the immunity statute and, therefore, it reversed and remanded the case to the lower court.|
|State v. Avella||--- So.3d ----, 2019 WL 2552529 (Fla. Dist. Ct. App. June 21, 2019)||The Defendant was charged with practicing veterinary medicine without a license and for cruelty to animals. The Defendant made a homemade device attempting to treat his dog for a problem because he did not have the money to take his dog to the vet. The home treatment ended up injuring the dog and he took the dog to a veterinarian for treatment. The veterinarian stated that the dog needed to be taken to an advanced care veterinary facility, however, the Defendant could not do so due to lack of funds. The trial court dismissed the charges brought against the Defendant and the State of Florida appealed. Florida law forbids a person from practicing veterinary medicine without a license. The Defendant was not a veterinarian. The Defendant relied upon statutory exemptions in Florida’s statue that permit a person to care for his or her own animals and claims that he was just trying to help his dog, Thor. The Defendant also argued that the purpose of the statute was to prevent unlicensed veterinary care provided to the public rather than to criminalize the care an owner provides to his or her animals. The Court held that the trial court did not err in dismissing Count I for unlicensed practice of veterinary medicine given the stated purpose of the statute and the statutory exemptions. As for Count II, animal cruelty, the State argued that the Defendant’s conduct in using a homemade tool to remove bone fragments from the dog’s rectum and then failing to take the dog to an advanced care clinic fits under the Florida animal cruelty statute. Although the Defendant argued that he had no intention of inflicting pain upon his dog and was only trying to help him, the Court agreed with the State’s argument that “the statute does not require a specific intent to cause pain but punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering.” Ultimately the Court affirmed the trial court’s dismissal of Count I, reversed the trial court’s dismissal of Count II and remanded for further proceedings on the animal cruelty charge.|
|State v. Archer||--- So.3d ----, 2018 WL 6579053 (Fla. Dist. Ct. App. Dec. 14, 2018)||This appeal concerns the lower court's granting of a motion to suppress evidence in an animal cruelty case. In April of 2017, a Ponce Inlet Police Department officer responded to defendant's residence after receiving a call about possible animal abuse. The caller described hearing sounds of a dog yelping and being beaten. Upon arrival, Officer Bines heard dog commands and the sounds of "striking flesh." He then knocked on defendant Archer's front door and began speaking with him on the front porch. Officer Bines told Archer that he was there to investigate a complaint of possible animal abuse to which Archer acknowledged that his dog bit him after he disciplined the dog for making a mess, so he "hit him a couple times." The officer then told Archer he had "probable cause" to enter the house or he could seek a warrant. Ultimately, Bines followed Archer to the backyard where Archer pointed to a dog in the corner that had its tongue out and was bloodied. Shortly thereafter, Bines determined the dog was dead. Archer was then cuffed and advised of his Miranda rights. After placing Archer in the police vehicle, Bines and other officers re-entered the home and yard to take pictures of the crime scene and to secure the canine's remains. After being charged with violating the cruelty to animals law (Section 828.12), Archer moved to suppress the evidence obtained from the warrantless entry of his home. The trial court granted and denied the motion in part, finding that while there were exigent circumstances to justify the warrantless entry, the exigency was over once it was determined that the dog was dead. The State of Florida appeals here. The appellate court first noted that while warrantless searches of homes are presumed illegal, an officer may enter when there are exigent circumstances including medical emergencies related to animals. Despite Archer's attempts to distinguish the instant facts from previous cases because there were no signs of blood or smells to indicate an emergency, the totality of the facts showed police received a call of animal cruelty in progress and the Officer Bines heard sounds of striking flesh. In addition, Archer advised Bines that he had struck the dog. Thus, the court found the officer "had reasonable grounds to believe that there was an urgent and immediate need to check on the safety and well-being of the dog and to connect the feared emergency to the house that they entered." As to suppression of the evidence found in plain view after entry onto the property, the appellate court also found the lower court erred in its decision. Under existing case law, once entry is allowed based on exigent circumstances, items found in plain view may be lawfully seized. The officer saw the dog in the corner before he knew the dog was dead, and thus, the exigency still existed. With respect to the photographs taken and the bodycam footage, the court held that re-entry into the home after Archer was in the patrol car did not require a warrant. Once an exigency that justified a warrantless search is over, law enforcement cannot go back and conduct further searches. However, in this case, the re-entry into Archer's house was a continuation of photographing evidence that was already found in plain view while the exigency existed (e.g., before the officers knew the dog was dead). The motion to suppress was affirmed in part and reversed in part.|
|Strickland v. Pinellas Cty.||--- So.3d ----, 2018 WL 6518761 (Fla. Dist. Ct. App. Dec. 12, 2018)||Andy G. Strickland appealed an order dismissing with prejudice his complaint for declaratory relief against Pinellas County. The request stems from letters he received from Animal Services of Pinellas County about his dog. Strickland and a neighbor were involved in a dispute after their dogs attacked each other. The neighbor filed a complaint with Animal Services claiming that Strickland's dog was the "aggressor dog" and then sent a letter to the Pinellas County Board of Commissioners. The County then sent two letters to Strickland, the first informing him that his dog had exhibited dangerous propensities, and the second, from an assistant county attorney, informing him of the possible criminal ramifications for keeping a dangerous dog or being an "Irresponsible Pet Owner" under the county code. As a result of these letters, Strickland filed a complaint in circuit court saying that he was not afforded any opportunity to dispute those claims and that he is entitled to have the threat of criminal prosecution removed. The County moved to dismiss Strickland's complaint arguing that he failed to allege a justiciable controversy and a bona fide dispute between the County and him. The County claimed that there were no legal findings made with respect to Strickland's dog and that the letters were possible ramifications and explanations of law. The trial court agreed and granted the County's motion, finding the letters were not accusatory and the case presented no justiciable issue. On appeal here, this court upheld the lower court's order because Strickland's allegations did not present a bona fide dispute. Both letters emphasized that his dog had not been classified as dangerous and that no action was being taken by the county. A speculative fear by Strickland that he may be subject to future consequences does not warrant declaratory relief and does not show imminent danger of prosecution. Thus, the trial court correctly dismissed Strickland's complaint. Affirmed.|
|Wallen v. City of Mobile||--- So.3d ----, 2018 WL 3803749 (Ala. Crim. App. Aug. 10, 2018)||Wallen appeals her convictions for six counts of violating Mobile, Alabama's public nuisance ordinances. The nuisance convictions stem from an anonymous complaint about multiple barking dogs at Wallen's property. After receiving the tip in March of 2016, an animal control officer drove to the residence, parked across the street, and, as he sat in his car, heard dogs bark continuously for approximately ten minutes. That same day, a local realtor went to house that was for sale behind Wallen's property and heard an "overwhelming" noise of dogs barking continuously for 30-45 minutes. For almost a year, officers received complaints about noise coming from Wallen's house. In May of 2017, Wallen entered a plea of not guilty for multiple charges of violating the public nuisance ordinance in Mobile Circuit Court. She also filed a motion to dismiss, arguing that the Mobile City Code was unconstitutionally vague. Her motion was later denied, and a jury trial was held where Wallen was found guilty of six counts of violating Mobile's public-nuisance ordinance. On appeal, Wallen first argues that the public nuisance ordinance is unconstitutionally overbroad because it regulates without reference to time, place, and manner. However, the court found that Wallen did not establish how the overbreadth doctrine applied to her case and how the ordinance was unconstitutional. As to her next vagueness challenge, Wallen contended that the ordinance had no objective standards to determine whether a dog's barking is disturbing or unreasonable. This court disagreed, finding the statute defines what are "disturbing noises" (which specifically states barking), and other courts previously established that the term "habit" in a dog-barking statute is not vague. Finally, the found that Wallen's last general argument, that the code is unconstitutional as applied to her, did not satisfy court rules with respect to issues presented and support with authority on appeal. The judgment of the lower court was affirmed.|
|Kasey v. Beshear||--- S.W.3d ----, 2021 WL 1324395 (Ky. Ct. App. Apr. 9, 2021)||Appellants, Teresa's Legacy Continues, Inc., a non-profit organization of concerned citizens and taxpayers in Kentucky sued the Governor and Commissioner of Agriculture alleging failure to monitor or enforce compliance with animal shelter statutes (KRS3 Chapter 258, Animal Control and Protection). The appellants contend that in 120 of Kentucky's counties, only 12% are in compliance with the statutes and over 50% are in violation of at least three statutes. In lieu of filing an answer, the appellants filed a motion to dismiss based largely on appellants' lack of standing. In response, the appellants claimed standing based on actual damage and argued that they have "a real and substantial interest in the outcome" because post-tax funds that are supposed to be for shelters will "unjustly enrich" the Commonwealth. The circuit court dismissed the complaint for lack of standing in 2018 and this appeal followed. On appeal, this court held that the failure to enforce Kentucky laws is not the particularized injury contemplated under the Lujan test. In fact, the court declined to expand the doctrine of standing to include an injury based on the appellants voluntary expenditure of personal time and resources to care for abandoned animals when they were under no legal obligation to do so. As to the asserted taxpayer standing, the court found that appellants failed to allege in circuit court that funds were being illegally expended and thus, could not consider this argument for the first time on appeal. Further, the animal shelter statutes at issue require only that the Governor and Commission of Agriculture disburse the funds and had no control over the oversight of funding (that goes to the governing board of each county). Thus, the cause of appellants' injuries could not be traced to the appellees. Lastly, the court acknowledged that while appellants have attempted to show standing via citizen and taxpayer status, Kentucky law has not previously considered that avenue. Said the court, "[p]erhaps, given the right facts and circumstances, one could obtain such standing. However, for the reasons set forth above, we cannot say the Appellants have properly pled it here." Affirmed.|
|Landry’s, Inc. v. Animal Legal Defense Fund||--- S.W.3d ----, 2018 WL 5075116 (Tex. App. Oct. 18, 2018)||This is an appeal of a dismissal of appellant Landry's claims under the Texas Citizens Participation Act (“the TCPA”) and the subsequent required awarding of attorney fees and sanction under Tex. Civ. Prac. & Rem. Code Ann. § 27.009. Landry's is a large corporation that owns and operates more than 500 entertainment properties across the country, including the Houston Aquarium, Inc. The aquarium houses four white tigers in an human-made enclosure known as "Maharaja's Temple." Appellees, including the Animal Legal Defense Fund and its attorneys as well as a radio station owner (Cheryl Conley), asserted a variety of claims in connection with the publication of the notice to intend to sue under the Endangered Species Act due to the care and housing of the tigers. As a result of that notice and the associated publicity, Landry's asserted claims in the trial court for defamation, business disparagement, tortious interference with prospective business relations, abuse of process, trespass, conspiracy to commit each of these torts, and conspiracy to commit theft. Conley and ALDF moved to dismiss the claims under the TCPA, arguing that the claims related to exercise of free speech, petition, and association, and that Landry's could not make out a prima facie case. Additionally, they also argued that the claims were barred by the judicial-proceedings privilege. The lower court agreed and granted Conley's motion to dismiss. It also awarded $250,000 to ALDF and $200,000 to Conley. On appeal here, Landry again points to the allegedly defamatory statements released on social media (Twitter and Facebook) and through news media regarding the tigers' care. The court noted that many of the statements were non-actionable because they were not shown to be false statements of fact or were opinions. Nonetheless, even on those statements where Landry's met their burden of proving a defamation claim, the statements were protected by the judicial-proceedings privilege. The court was not convinced by Landry's contention that the statements were not made in contemplation of litigation because they were made after the required federal notice for filing suit under the ESA. Additionally, the court also rejected Landry's claim that the ALDF cannot claim attorney immunity because it is not a law firm and instead is comprised of attorneys who hold law licenses. The court observed that law licenses are not issued to business entities, but to individuals. The court also rejected Landry's remaining causes of action. As to the attorneys' fee and sanctions, the court did modify the attorneys' fees because one attorney at the trial court level did not participate in the appeal. Landry's then argued that the $450,000 in sanctions was excessive. The court first noted the TCPA mandates an award of sanctions and attorneys' fees. In reviewing the award for abuse of discretion, this court reviewed arguments by ALDF concerning Landry's hiring of the third largest law firm to defend a relatively small initial action, the filing of a 157-page response, with Landry's unwillingness to concede any points. The court took that in addition to several factors under the TCPA. The court was particularly concerned with Landry's filing of this suit on day 59 of the 60-day notice to file suit under the ESA (which may have been an indication to preempt the federal suit, according to the court). Despite that and more, the court did conclude that sanctions that were 2.4 and 2.8 times the attorneys' fees awards were excessive. The court suggested a remittitur, which would bring those awards respectively to $103,191.26 and $71,295.00. Thus, the lower court's decision to dismiss Landry's claims was affirmed, but the awards for attorneys' fee and sanctions were modified.|
|Galindo v. State||--- S.W.3d ----, 2018 WL 4128054 (Tex. App. Aug. 30, 2018)||Appellant Galindo pleaded guilty to cruelty to nonlivestock animals and a deadly-weapon allegation from the indictment. The trial court accepted his plea, found him guilty, and sentenced him to five years in prison. The facts stem from an incident where Galindo grabbed and then stabbed a dog with a kitchen knife. The indictment indicated that Galindo also used and exhibited a deadly weapon (a knife) during both the commission of the offense and flight from the offense. On appeal, Galindo argues that the deadly-weapon finding is legally insufficient because the weapon was used against a "nonhuman." Appellant relies on the recent decision of Prichard v. State, 533 S.W.3d 315 (Tex. Crim. App. 2017), in which the Texas Court of Appeals held that a deadly-weapon finding is legally insufficient where the sole recipient of the use or exhibition of the deadly weapon is a nonhuman. The court here found the facts distinguishable from Prichard. The court noted that Prichard left open the possibility that a deadly-weapons finding could occur when the weapon was used or exhibited against a human during the commission of an offense against an animal. Here, the evidence introduced at defendant's guilty plea and testimony from sentencing and in the PSIR are sufficient to support the trial court's finding on the deadly-weapons plea (e.g., the PSI and defense counsel stated that Galindo first threatened his girlfriend with the knife and then cut the animal in front of his girlfriend and her son). The judgment of the trial court was affirmed.|
|Scales v. State||--- S.W.3d ---- , 2020 WL 1174185 (Tex. App. Mar. 11, 2020)||Defendant, Jade Derrick Scales, was convicted of two counts of cruelty to non-livestock animals which constituted a state felony. Michelle Stopka had found two puppies in an alley and took them in. On February 8, 2015, Defendant confronted Stopka in her front yard holding a knife and wearing a mask and brass knuckles. Leonard Wiley, the man Stopka was residing with, confronted the Defendant and a brief confrontation ensued which resulted in both individuals sustaining a cut. Stopka soon discovered that both puppies had been sliced open and were bleeding. The puppies did not survive their injuries. Defendant’s sentence was enhanced to a second-degree felony based on the finding of use or exhibition of a deadly weapon during the commission of, or during immediate flight following, the commission of the offense and the fact that the Defendant had a previous conviction for a second-degree-felony offense of burglary of a habitation. Defendant was sentenced to seven years and a fine of $2,000. The Defendant subsequently appealed. The first issue raised on appeal by the Defendant was the deadly weapon finding which the the Court found was appropriate. The second issue regarded a jury instruction error. The Defendant contended that the trial court erred by failing to instruct the jury that a deadly-weapon finding is only appropriate when the weapon is used or exhibited against a human being. The Court found that although a deadly-weapon instruction should not have been given, the error was not egregious and therefore overruled the issue because a jury could have reasonably believed that the Defendant used the same knife to both inflict wounds upon the puppies and Leonard. The failure to provide such a jury instruction did not materially affect the jury’s deliberations or verdict. The third issue raised by the Defendant was that he was provided ineffective assistance of counsel. The Court overruled this issue as well. The Fourth issue raised by Defendant was that his prosecution was based on two identical indictments for the same conduct committed in one criminal episode which violated double jeopardy and due process principles. The Defendant did not preserve his claim of double jeopardy and the Court further found that two separate dogs were the object of the criminal act and each dog could have been prosecuted separately. No double jeopardy violation was found on the face of the record and, therefore, the Defendant did not qualify for an exception to the preservation rule. The fifth issue Defendant raised was that his sentence was illegal because the range of punishment for the offense for which he was convicted was illegally enhanced. The Court overruled this issue because his conviction was not illegally enhanced. The trial court’s judgment was ultimately affirmed.|
|State v. Crew||--- S.E.2d ----, 2022 WL 151341 (N.C.App.,2022)||Defendant Daniel Crew appealed his convictions for dogfighting, felony cruelty to animals, misdemeanor cruelty to animals, and restraining dogs in a cruel manner. Crew also challenges the trial court's restitution orders totaling $70,000, which the trial court immediately converted to civil judgments. The arrest and conviction of defendant stemmed from an investigation at defendant's residence, where 30 pit bulls were recovered with injuries "similar to injuries a dog would sustain through dogfighting." In addition, publications and notes on preparing for a fight were found, as well as dogfighting training equipment such as a "jenny," staging area for fights, and weight scales for weighing dogs. The State charged Crew with fifteen counts of engaging in dogfighting, one count of allowing property to be used for dogfighting, five counts of felony cruelty to animals, twenty-five counts of misdemeanor cruelty to animals, and sixteen counts of restraining dogs in a cruel manner. Ultimately, Crew was convicted by the jury of eleven counts of dogfighting, three counts of felony cruelty to animals, fourteen counts of misdemeanor cruelty to animals, and two counts of restraining dogs in a cruel manner. The trial court imposed six consecutive active sentences of 10 to 21 months each along with several suspended sentences. The trial court also ordered Crew to pay Orange County Animal Services $10,000 in seven separate restitution orders that were then entered as civil judgments, totaling $70,000 in restitution (testimony at trial indicated that the cost to house the dogs alone was a "a littler over $80,000"). Defendant appealed his criminal judgment and petitioned for a writ of certiorari for the award of restitution entered as civil judgments. On appeal, this court rejected defendant's claim that there was insufficient evidence of dogfighting. The police found training equipment, medication commonly used in dogfighting operations, and a dogfighting "pit" or training area as well as the notes preparing dogs to fight. A reasonable juror could have concluded that Crew intended to engage in dogfighting. However, as to the restitution order converted to civil judgments, the court found that the trial court lacked the statutory authority to immediately convert those restitution orders into civil judgments. The court found no error concerning the criminal convictions, but vacated the conversion of the restitution to civil judgments against defendant.|
|Saulsbury v. Wilson||--- S.E.2d ----, 2019 WL 493695 (Ga. Ct. App. Feb. 8, 2019)||This Georgia involves an interlocutory appeal arising from a dog bite lawsuit. In 2016, Plaintiff Saulsbury was walking her English Bulldog past Defendant Wilson's house when Wilson's pitbull dog escaped its crate in the open garage. A fight ensued between the dogs. Wilson then attempted to break up the fight and was allegedly bitten by Saulsbury's dog, suffering a broken arm in the process and necessitating a course of rabies shots. The Saulsburys then sued the Wilsons in magistrate court to recover hospital and veterinary expenses. Wilson counterclaimed for her injuries in excess $15,000, thus transferring the case to superior court. At this time, the Saulsburys moved for summary judgment, which the trial court denied. The Court of Appeals here reverses that denial. The court found that Wilson assumed the risk when she intervened in a dog fight with her bare hands. In particular, the court observed that assumption of risk serves as a complete defense to negligence. That finding was bolstered by the fact that Wilson had knowledge that her dog had previously bitten other persons and had admitted to breaking up previous dog fights with a stick. The court relied on previous case law showing that all animals, even domesticated animals, pose a risk as does the act of breaking up even human fights. The court was not persuaded by the fact that Saulsbury may have been in violation of various DeKalb County ordinances related to an owner's responsibility to control his or her animal. A plain reading of those ordinances does not impose a duty on the part of an owner to "dangerously insert herself into a dog fight." The court found the lower court erred in denying the Saulsbury's motion for summary judgment and reversed and remanded the case.|
|SAM LAMBERT & ANDRIA LAMBERT v. SALLY MORRIS & STEVE HAIR||--- S.E.2d ----, 2018 WL 6314142 (N.C. Ct. App. Dec. 4, 2018)||Plaintiffs Sam Lambert and Andria Lambert appeal the trial court's granting of summary judgment in this lost dog case. Specifically, plaintiffs filed an action against defendants Sally Morris and Steve Hair alleging conversion, civil conspiracy, unfair and deceptive trade practices, and intentional or reckless infliction of emotional distress, as well as injunctive relief and damages related to the disappearance of their dog, Biscuit. Biscuit went missing in August of 2015. After searching for Biscuit for several days, plaintiffs contacted the local animal control and posted Biscuit as a lost dog on animal control's unofficial Facebook page. Over a month later, a citizen brought Biscuit (who had no microchip or collar on) to animal control where she was placed in a holding cell. After the 72-hour hold, Biscuit was transferred to the Humane Society. Biscuit was spayed and examined by a veterinarian, and a picture was posted on the Humane Society website. At the vet exam, tumors were discovered in Biscuit's mammary glands and so surgery was performed, some of it paid for by defendant Hair. Hair eventually adopted Biscuit. Almost a year later, plaintiffs found an old picture of Biscuit on the Humane Society Facebook page and attempted to claim Biscuit. Defendant Hair learned of this and requested that plaintiffs reimburse for veterinary expenses, to which they agreed. After some discussion, Hair learned plaintiffs had over 14 dogs and refused to return Biscuit without a home inspection. That caused a heated discussion and the meeting between plaintiffs and defendant ended without the dog returning. About a month later, plaintiffs filed suit against defendants, whereupon defendants filed a motion for summary judgment. On appeal here, the court first noted that, per state law, an animal shelter hold a lost or abandoned dog for at least 72-hours. Here, animal control satisfied its legal duty by keeping Biscuit in custody for the required holding period before transferring her to the Humane Society. Thus, plaintiffs lost any ownership rights to Biscuit after the 72-hour mark. Moreover, almost a month had passed between the time Biscuit was taken in by animal control and the formal adoption by defendant Hair at the Humane Society. As a result, the court found that Hair was the rightful owner of Biscuit and was entitled to negotiate with plaintiffs as he saw fit. Thus, no genuine issues of material fact existed for plaintiffs at trial. Accordingly, the trial court did not err in granting summary judgment to defendants and dismissing plaintiffs’ claims.|
|Matter of S. A. B.||--- P.3d ----, 326 Or. App. 192 (2023)||In this Ohio juvenile dependency case, a father appeals a juvenile court judgment ordering him to transfer the his dog to his child, claiming that the court lacked the authority to transfer possession of the dog. He also claims the dog is his personal property and not the child's. The child, who does not live with the father, suffers from panic attacks and has difficulty sleeping at night. The child's therapist testified that the child's mental health symptoms are exacerbated by "missing and worrying about the dog." The therapist testified that, because of the bond that child shares with the dog, the child's emotional support dog should be this particular dog. In contrast, the father claims the dog is legally his and provides a household benefit for him by keeping raccoons away from his chickens and deterring thieves from entering the property. The lower court found that the child shares a bond with the dog and having the dog as an emotional support animal would benefit the child. On appeal, the father argues that an emotional support animal does not fall within the statutory definition for "counseling" and, thus, the court's order was tantamount to giving away his property. In looking at the statute, the court noted that "counseling" is undefined and so looking at the plain and ordinary meaning is appropriate. As a result, the court found that the dictionary definition read with the policy goals of the chapter on jurisdiction of the juvenile court allowed the court to conclude that the term "counseling" includes the use of emotional support animals. The evidence in this case also shows that this particular dog is necessary as ". . . this particular dog is not just a pet, but rather is an emotional support animal for child, as evidenced by child's strong emotional bond with this particular dog and various testimony demonstrating that this particular dog will contribute to child's well-being by providing child with emotional stability and security." As to the property issue raised by the father, the court observed that courts routinely order parents to provide support for their children and this transfer of property did not abuse the court's discretion. Affirmed.|
|Justice by and through Mosiman v. Vercher||--- P.3d ----, 321 Or.App. 439 (2022)||The Oregon Court of Appeals, as a matter of first impression, considers whether a horse has the legal capacity to sue in an Oregon court. The Executive Director of Sound Equine Options (SEO), Kim Mosiman, filed a complaint naming a horse (“Justice”)as plaintiff with the Mosiman acting as his guardian, and claiming negligence against his former owner. In the instant appeal, Mosiman challenges the trial court's grant of defendant's motion to dismiss. In 2017, defendant's neighbor persuaded defendant to seek veterinary care for her horse. The veterinarian found the horse to be about 300 pounds underweight with significant walking difficulties and other maladies. The horse was voluntarily surrendered to Mosiman who eventually nursed the animal back to good health. In 2018, Mosiman filed a complaint on Justice's behalf for a single claim of negligence per se, alleging that defendant violated the Oregon anti-cruelty statute ORS 167.330(1) by failing to provide minimum care. Defendant moved to dismiss the complaint on the grounds that a horse lacks the legal capacity to sue and the court granted dismissal. Specifically, the trial court expressed concern over the "profound implications" of allowing a non-human animal to sue and stated that an appellate court could come to a different conclusion by "wad[ing] into the public policy debate involving the evolution of animal rights." Here, the appellate court first found no statutory authority for a court to appoint a guardian for an animal because "a horse inherently lacks self-determination and the ability to express its wishes in a manner the legal system would recognize." The animal has a "distinctive incapacity" that sets it apart from humans with legal disabilities that require appointment of a legal guardian. The court reaffirmed the law's treatment of animals as personal property and found no support in the precedent for permitting an animal to vindicate its own legal rights. While Oregon's animal welfare laws recognize animals as beings capable of feeling pain, this makes them a special type of property and imposes duties on the human owners rather than rights to the animal victims. The court held that only human beings and legislatively-created legal entities are persons with the capacity to sue under Oregon common law. The court emphasized that this holding does not prevent Oregon laws from ever recognizing an animal as a legal person, but the courts are not the appropriate vehicle to do that. Accordingly, this court affirmed the trial court's judgment dismissing the complaint with prejudice.|
|State v. Hackett||--- P.3d ----, 315 Or.App. 360, 2021 WL 4987629 (2021)||Defendant was convicted of second-degree animal abuse, among other crimes. On appeal, he argues that the trial court erred when it denied his motion for judgment of acquittal (MJOA) and imposed fines (in addition to incarceration) without first determining his ability to pay. The conviction was supported by testimony at trial from two witnesses, a mother and her daughter. The daughter was visiting her mother and heard a dog "yike" in pain outside while she was at her mother's house. She thought a dog may have been hit by a car, so she went outside where she observed defendant and his dog Bosco. The dog was whimpering and laying in submission as the defendant hit the dog. Then, after going inside briefly to call police, the witness returned outside to see defendant was "just going to town and beating the dog" and throwing rocks at the dog to the point where the witness was concerned for the dog's life. On appeal, defendant contends that the trial court erred on the second-degree animal abuse charge because the evidence did not permit a rational inference that Bosco experienced "substantial pain" as required by the statute. The court, in a matter of first impression, examined whether Bosco experienced substantial pain. Both the state and defendant acknowledged that appellate courts have not yet interpreted the meaning of "substantial pain" for animal victims, so both parties rely on cases involving human victims. Defendant suggests that Bosco did not experience a significant duration of pain to permit a finding of substantial pain. The court disagreed, analogizing with cases where a human victim could not testify concerning the pain. Thus, the court concluded that the evidence supported a reasonable inference that Bosco's pain was not "fleeting" or "momentary." Not only did the witnesses see the defendant kick and pelt the dog with rocks, but one witness left to phone police and returned to find the defendant still abusing the dog. As to the fines, the court found that the trial court did err in ordering payment of fines within 30-days without making an assessment of defendant's ability to pay. Thus, the the trial court did not err in denying defendant's MJOA, but the matter was remanded for entry of judgment that omitted the "due in 30 days" for the fines.|
|Animal Legal Def. Fund v. Olympic Game Farm, Inc.||--- P.3d ----, 2023 WL 5281830v (Wash. Aug. 17, 2023)||This case is brought by the Animal Legal Defense Fund (Plaintiff) against a private zoo based in Washington state, known as Olympic Game Farm, Inc (Defendant). Plaintiff argues that defendant has violated Washington’s wildlife laws, animal cruelty laws, and the Washington and federal Endangered Species Acts. Plaintiff also argues that defendant has created a public nuisance, which is a nuisance that “affects equally the rights of an entire community or neighborhood, although the extent of that damage may be unequal.” Generally, conduct the Washington legislature has named a public nuisance relating to animals are those which have an adverse impact on public land, such as improper discharge of pollution or animal carcasses, or other interferences with public enjoyment of land and public safety. None of these nuisances reference any animal cruelty laws and no animal protection statues name a nuisance as a violation of those laws. However, plaintiff argued that they have demonstrated that defendant is in violation of animal cruelty and wildlife laws, and asked the court to name the violation of these laws as a public nuisance per se. The court found that previous cases regarding public nuisance claims limit those claims to instances of property infringement or threats to public health and safety. Accordingly, the court held that defendant’s alleged violation of the wildlife, animal cruelty, and endangered species laws, did not constitute a public nuisance.|
|Cardenas v. Swanson||--- P.3d ----, 2023 WL 4344196 (Wyo. July 5, 2023)||The Cardenas family (Appellants) owned three St. Bernard dogs. Appellants lived on a home adjacent to large tracts of state land, and would allow the dogs to roam the land unleashed, but the dogs would return each night. One afternoon, the dogs were let outside to run, but one dog did not return. Appellants found the dog caught in a snare, where it died from a broken neck. Appellants attempted to free the dog from the snare, and one of the Cardenas children was injured in the process. While appellants were attempting to free their dog from the snare, the other two dogs were also caught in snares, and died from their injuries. Appellants filed suit against the trapper who set the snares (Appellee), asserting claims of negligence, willful and wanton misconduct, violation of statutes, infliction of emotional distress, and civil rights violations. Appellee filed a motion for summary judgment, which the trial court granted and denied in part, finding that appellee’s conduct was not willful and wanton and that appellants could not recover emotional damages for the loss of the dogs. On appeal, the court considered: (1) whether the members of the Cardenas family can recover damages for emotional injuries for the loss of their dogs, and (2) whether this court should allow the recovery of emotional distress damages for the loss of a pet. The court held that (1) emotional injuries for the loss of property are not recoverable, under this court’s precedent emotional damages are only recoverable for certain limited situations. Dogs are considered personal property under state law, and damage to personal property is not one of the situations in which emotional damages are recoverable. Next, the court held that (2) it would not create a precedent to allow people to recover emotional distress damages when animate personal property is harmed, as that change would be best suited for the legislature to make. The court affirmed the judgment of the trial court and dismissed the case.|
|Wild Horse Observers Association, Inc. v. New Mexico Livestock Board||--- P.3d ----, 2022 WL 2901248 (N.M. Ct. App. July 22, 2022)||This appeal examines the protection afforded to New Mexico's free-roaming horses under NMSA 1978, Section 77-18-5 (2007). The New Mexico Livestock Board (the Board) appeals from a district court order granting declaratory and injunctive relief sought by Wild Horse Observers Association, Inc. (WHOA). WHOA brought an action for declaratory and injunctive relief against the Board and others regarding the status of horses corralled by a private citizen on private property. The citizen had initially complained to the Board about the free-roaming horses on her property and was told that the Board only takes possession of horses corralled by citizens. The citizen did so and the Board took possession of the herd, where it then posted on its website that the horses would be sold at auction. WHOA filed the instant emergency action, stating that the Board exceeded its authority and unlawfully treated the subject horses as estray livestock. The group sought a temporary restraining order (TRO) preventing the Board from impounding or selling the subject horses. The district court granted WHOA's request for a TRO, thereby prohibiting the Board from taking any action with the horses. After a bench trial on the merits, the district court determined that the Board's actions to take possession and sell the subject horses were contrary to the Board's statutory authority, enjoined the Board from “further unlawful possession and selling” of the subject horses, and awarded WHOA costs and attorney fees. The Board appeals here, arguing that the horses were captured on private, rather than public land, and the district court erred in concluding them to be “wild horses." The Board also contends that the district court made findings of fact that are unsupported by substantial evidence, issued a vague injunction, erred in awarding attorney fees, and erred in refusing to impose an injunction bond upon WHOA. This court found no error with the lower court concluding that the horses should be protected as “wild horses” because the definition of that term does not depend on whether, at the moment of their capture, the horses were on land that is private, but instead depends on whether the horses generally roam public land. Therefore, the horses were not estrays. As to whether the Board should have conducted its statutory duties with respect to horses including history and DNA testing, this court held that duty does not extend testing of a wild horse if it is captured on private land. Thus, the district court erred in determining that the Board failed to follow its statutory duties under Section 77-18-5(B). In fact, the Board has no authority to test the conformation, history, and DNA of such horses found on private land any more than it does to take possession of and remove the wild horses from those lands. The court also found the injunction was not vague or impracticable and that the lower court did not abuse its discretion in failing to order an injunction bond. Ultimately, this court affirmed the district court's order to the extent that it correctly determined that the subject horses are wild horse rather than estray, but reversed the district court's determination that the Board should have acted according to its statutory duties under Section 77-18-5. The case was remanded for proceedings consistent with this opinion and further consideration of attorney fees.|
|State v. Jallow||--- P.3d ----, 2021 WL 939178 (Wash. Ct. App. Mar. 8, 2021)||Defendant Jallow appeals his conviction of two counts of animal cruelty in the first degree, arguing that (1) the evidence was insufficient to convict him of animal cruelty, (2) the to-convict instruction omitted the element of causation, thus relieving the State of its burden of proof, and (3) because animal cruelty is an alternative means crime, violation of the unanimous jury verdict requires reversal of one of the animal cruelty convictions. The cruelty convictions stemmed from events first occurring in late 2016. An animal control officer (Davis) received a report on sheep and goats at defendant's property that were in poor condition. On the officer's second documented visit, he observed a a lifeless sheep. On a subsequent visit, the officer took a sheep that a neighbor has wrapped in a blanket to a local veterinarian who scored it very low on a health scale and ultimately had to euthanize the animal. After a couple more visits to bring food and monitor the animals, and after no contact from Jallow despite requests, Davis returned with a search warrant to seize the animals. Jallow was charged with three counts of first degree cruelty to animals and one count of bail jumping. At trial, Jallow contended that he contracted with another person (Jabang) to care for the animals after he went on an extended trip in October of 2016. After hearing testimony from both Jallow and Jabang (hired to care for the animals), Jallow was ultimately convicted of first degree cruelty. On appeal, Jallow first argued that there was insufficient evidence to support his conviction and that he was not criminally negligent because he arranged for someone else to care for the animals. However, the evidence showed that despite being aware that his caretaker was not providing sufficient care, Jallow continued to rely on him and did not take further action. The court noted that a reasonable person in this situation would have found an alternate caretaker. "Although Jallow himself was not neglecting to feed and water the animals, he was directly responsible for not ensuring that his animals were properly cared for. Because any rational trier of fact could have found that Jallow acted with criminal negligence, sufficient evidence supported his conviction." As to Jallow's contention that the jury instruction was incorrect, the appellate court agreed. The omission of the language "as a result causes" removed an essential element of the crime and did not allow Jallow to pursue his theory that it was his employee Jabang's intervening actions that caused the injury to the sheep. Finally, defendant argued on appeal that first degree animal cruelty is an alternative means crime and thus, the trial court committed instructional error when it did not give particularized expressions of jury unanimity on each alternative means for commission of the crime. Notably, at the prosecution's urging, the court ultimately held that the previous case that held first degree animal cruelty is an alternative means crime was wrongly decided. However, the two instructional errors necessitated reversal of Jallow's conviction here. Reversed.|
|Mackley v. State||--- P.3d ----, 2021 WL 671631 (Wyo. Feb. 22, 2021)||The Wyoming Supreme Court considers whether the jury was properly instructed on the charge of aggravated animal cruelty. The case stems from an incident where a dog escaped his owner and attacked the defendant's dogs at his front door. A local teenager grabbed the offending dog ("Rocky") and dragged him into the street as the dog fight carried on. The defendant responded by grabbing his gun and shooting Rocky as he was held by the teenager. A jury convicted defendant of both aggravated animal cruelty and reckless endangering. At the trial, defendant moved for judgment of acquittal on both charges, arguing that the Wyoming Legislature has established that humanely destroying an animal is not animal cruelty and that the State did not provide evidence that he intentionally pointed a firearm at anyone, which defendant contends is necessary for the reckless endangering charge. On appeal here, the court first observed that defendant's challenge to a confusing or misleading jury instruction was waived because he negotiated with the prosecution to draft it. Further, the Supreme Court did not find an abuse of discretion where the district court refused defendant's additional instructions on the humane destruction of an animal in the jury instructions on the elements for the aggravated cruelty to animals charge. While defendant argued that the instructions should include subsection m from the statute, he only now on appeal contends that the subsection should have been given as a theory of defense. Thus, reviewing this argument for plain error, the Court found that defendant's theory that his killing was "humane" and thus excluded from the crime of aggravated cruelty was not supported by the language of the statute. In fact, such an interpretation not only goes against the plain language, but "then any animal could be killed, under any circumstances, as long as it is killed quickly." Defendant presented no evidence that the dog he shot was suffering or distressed and needed euthanasia. The trial court did not commit error when it declined to instruct the jury on subsection m. As to the reckless endangering conviction, the court also affirmed this charge as defendant showed a conscious disregard for the substantial risk he placed the teenager in regardless of whether he pointed the gun at the victim. Affirmed.|
|State v. Wilson||--- P.3d ----, 2019 WL 4955178 (Wash. Ct. App. Oct. 8, 2019)||Defendant Robert Wilson appeals his conviction of first degree animal cruelty, which arose from an incident at an archery club when Wilson shot a large dog in the hindquarters (70lb. "Dozer") with an arrow after that dog attacked Wilson’s small dog ("Little Bit"). (Dozer recovered from his injuries.) Wilson argues that his action was lawful under RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls. The trial court declined to give defendant's proposed jury instruction based on this statutory language, finding that it only applied to stock animals and not when a dog was injuring another dog. The court did, however, permit the common law defense that allows owners to take "reasonably necessary action" in defense of their animals, which the State must then disprove beyond a reasonable doubt. On appeal, this court noted that no Washington court has interpreted RCW 16.08.020 in a published case. Under common law cases that allow a person to kill an animal to defend his or her property, the court found those cases require the killing be "reasonably necessary." While the parties dispute whether the statute requires that the actions be "reasonably necessary," the appellate court first found Wilson was still not entitled to a dismissal of charges because he could not establish that the location where he shot the arrow at Dozer was land that he "owned, leased, or had control over" per the statute. As to the Wilson's next argument that the trial court erred in not giving his proposed instruction for RCW 16.08.020, the appellate court agreed. While the trial court found that the statute only applied to stock animals, the appellate court noted that the law does not define the term "domestic animal." Using the plain dictionary meaning for "domestic" - "belonging to or incumbent on the family" - and for "domestic animal," this court stated that "Little Bit certainly belonged to Wilson's family" and a dog fits the meaning of "domestic animal." Finally, the court found that the "reasonably necessary" requirement from the common law cases on shooting domestic animals cannot be grafted onto the statutory requirements of RCW 16.08.020. Thus, the trial court's refusal to give defendant's proposed instruction based on RCW 16.08.020 cannot be grounded in the reasonably necessary common law requirement. The trial court's refusal to give the proposed instruction was not harmless. As such, the appellate court reversed Wilson's conviction and remanded the action for further proceedings.|
|Goldberger v. State Farm Fire and Casaulty Company||--- P.3d ----, 2019 WL 3792803 (Ariz. Ct. App. Aug. 13, 2019)||Joel and Kim Goldberger owned residential rental property in Flagstaff that was insured by State Farm Fire and Casualty Company under a rental dwelling policy. The Goldbergers filed a claim asserting that their tenant allowed feral cats to access the property and cause approximately $75,000 in “accidental damage.” State farm subsequently denied the claim asserting that feral cats are domestic animals and therefore the damage was not covered under the policy. The Goldbergers filed suit alleging breach of contract and insurance bad faith. State Farm moved to dismiss the complaint for failure to state a claim. State Farm claimed that the policy stated that accidental losses caused by “birds, vermin, rodents, insects, or domestic animals” were not covered by the policy. The superior court granted State Farm’s motion and this appeal followed. The Goldbergers argued that the superior court erred in dismissing their complaint due to the fact that the term “domestic animals” is reasonably susceptible to differing interpretations and must be construed against State Farm. State Farm argued that the exclusion in the policy was only susceptible to one reasonable interpretation. The Court stated that there were two interpretations to the term “domestic animal.” The first definition is a species-based definition that says that domestic animals are animals belonging to a broader class of animals that have been domesticated at some point in history. The second definition is an individualized definition that says that domestic animals are animals that are kept by a person for any of various purposes, including as pets. The Court ultimately decided that the individualized definition makes more sense in terms of the insurance policy itself as well as case law. In making this determination, the court noted the "nonsensical" outcome that would arise for exotic or nontraditional pets were a species-based definition adopted. Domestic animals encompass animals that are subject to the care, custody, and control of a person. On the facts alleged in the complaint alone, the Court could not say that the tenant was keeping the feral cats in such a manner that the exclusion would preclude coverage. The court therefore resolved all reasonable inferences in the Goldberger’s favor and presumed that the cats were feral. Because the feral cats that caused the damage are not domestic animals under all reasonable interpretations of the facts alleged in the complaint, the court erred in granting the insurer's motion to dismiss. The Court reversed the superior court’s order dismissing the Goldberger’s complaint and remanded for further proceedings consistent with the opinion.|
|Matter of Ware||--- P.3d ----, 2018 WL 3120370 (Wash. Ct. App. June 26, 2018)||After the Lewis County Prosecuting Attorney's Office's decided not to issue charges in an animal abuse case, two private citizens sought to independently initiate criminal charges. One person filed a petition for a citizen's complaint in district court and, after that was denied, another person filed a petition to summon a grand jury. On appeal, those appellants argue that the lower court erred in not granting their petitions. The animal cruelty claim stems from an incident in 2016, where a woman filed a report with police stating that a neighbor had killed her mother's cat by throwing a rock at the cat and stabbing it with a knife. Witnesses gave similar account of the abuse of the cat by the neighbor. The responding police officer then determined that there was probable cause to arrest the suspect for first degree animal cruelty. The officer found the cat's body and photographed the injuries, although the officer could not determine whether the cat had been stabbed. Subsequently, the prosecuting attorney's office declined to file charges because the actions related to the animal's death were unclear. Additionally, the cat's body was not collected at the scene to sustain a charge.|
|People v. Harris||--- P.3d ---- 2016 WL 6518566 (Colo.App.,2016)||Harris was convicted for twenty-two counts of cruelty to animals after dozens of malnourished animals were found on her property by employees of the Humane Society. On appeal, Harris raised two main issues: (1) that the animal protection agent who was an employee of the Humane Society was not authorized to obtain a search warrant to investigate her property and (2) that the mistreatment of the twenty-two animals constituted one continuous course of conduct and that the lower court violated her rights under the Double Jeopardy Clause by entering a judgment on twenty-two counts of animal cruelty. The Court of Appeals reviewed the issue of whether the animal protection agent had the authority to obtain a search warrant to investigate the property and determined that the agent did not have the proper authority. The Court looked to the state statute that specifically stated that only “state employees” were able to investigate livestock cases. In this case, the animal protection agent was employed by the Humane Society and was not a state employee; therefore, he did not have the authority to obtain a search warrant to investigate the property. However, the Court found that there was no constitutional violation with regard to the search warrant because it was still obtained based on probable cause. For this reason, the Court denied Harris’ request to suppress evidence that was submitted as a result of the search warrant. Finally, the Court reviewed Harris’ argument regarding her rights under the Double Jeopardy Clause. The Court found that under the statute dealing with animal cruelty, the phrases “any animal” and “an animal” suggests that a person commits a separate offense for each animal that is mistreated. Essentially, the Court held that the language of the statute “demonstrates that the legislature perceived animal cruelty not as an offense against property but as an offense against the individual animal.” As a result, Harris’ rights under the Double Jeopardy Clause were not violated and the Court upheld the lower court’s decision.|
|People v. Restifo||--- N.Y.S.3d ----, 220 A.D.3d 1113, 2023 WL 7028284 (N.Y. App. Div. 2023)||This is an appeal of a verdict to convict defendant of aggravated cruelty to animals. Defendant was walking his two pit bull dogs and allowed the dogs enough leash space to reach a pet cat resting on the steps of its owner’s porch. The cat’s owners, who were witnesses to this event, watched as the pit bulls mauled their pet cat. When the witnesses asked defendant to stop his dogs, defendant attempted to flee with his dogs still carrying the cat’s body in its mouth. The witnesses pursued and eventually, the dog dropped the deceased cat’s body. Defendant was charged with aggravated cruelty to animals and overdriving, torturing and injuring animals, and failure to provide proper sustenance. Defendant was convicted, and appealed the aggravated animal cruelty charge. Defendant argues that the verdict was not supported by sufficient evidence. The court here found that defendant was well aware that the dogs were aggressive, even keeping them separate from his young son because of their propensity to attack smaller animals. There was also testimony from another neighbor of defendant allowing his dogs to chase feral cats off her porch without stopping them, and testimony regarding defendant’s dog previously mauling a smaller dog without defendant intervening to stop them. Defendant was warned by animal control to muzzle them, but refused to do so. Defendant also bragged to co-workers about how he let his pit bulls go after other dogs and attack wild and old animals. Accordingly, the court found that defendant was aware of the dogs’ aggressive behavior and affirmed the holding of the lower court.|