City of Kenner v. Parker

918 So. 2d 479, 2005 WL 3179678
CourtLouisiana Court of Appeal
DecidedNovember 29, 2005
DocketNo. 05-CA-250
StatusPublished
Cited by3 cases

This text of 918 So. 2d 479 (City of Kenner v. Parker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Kenner v. Parker, 918 So. 2d 479, 2005 WL 3179678 (La. Ct. App. 2005).

Opinion

JAMES C. GULOTTA, Judge Pro Tempore.

| ¿This is an appeal by Heath Parker from a district court review and affirmation of a judgment of the Mayor’s Court for the City of Kenner, declaring an animal to be dangerous, fierce and vicious and ordering the animal to be destroyed. The matter was brought before the mayor’s court by Bill of Information citing Parker Heath, the owner of a pit bull canine known as “Bacon” with a violation of Ken-ner Public Nuisances and Vicious Animals Ordinances, Chapter 4, Section 83, et seq.

FACTS

On August 20, 2004, Tracy Gordon took her six-year-old daughter, Cara, to the La Quinta Inn to visit a relative. According to her testimony, Ms. Gordon met her relative, Linda Parker, at the pool of the hotel. When it began to rain, the two women and the child went into Ms. Parker’s room. Bacon, who belongs to Ms. Parker’s son Heath, was also in the room. Ms. Gordon was looking at some | ¡¡clothes, and Ms. Parker was in the bathroom when Cara screamed. The child was bleeding and a large portion of her forehead was missing. Ms. Gordon got a towel and laid the child on the bed. Bacon got between the two, attempting to get at Cara. Ms. Gordon pulled the dog by the legs, but was unable to push the dog off of the bed until Ms. Gordon helped. Eventually, Ms. Parker managed to get Bacon into the bathroom. Emergency help soon came and Cara was taken to the hospital where over one hundred sutures were required to reconnect a large, round piece of skin to her forehead. Ms. Gordon testified that Cara first told her the dog’s collar caused the [481]*481wound, later she told her mother the dog jumped on her and bit her.

Ms. Parker’s account of the incident is different from that of Ms. Gordon. Ms. Parker testified that she heard Cara scream, but never saw Bacon bite or act aggressively toward her.

The City of Kenner presented Doyce Vallee of the Jefferson Parish Animal Shelter as an expert in animal behavior. However, at the end of voir dire the trial judge limited Ms. Vallee’s qualification to the issue of euthanasia. She testified that Bacon was a large, muscular pit bull weighing an estimated 80 pounds. Ms. Vallee stated that Dan Crutchfield, a dog trainer sent in by Bacon’s owner, entered Bacon’s cage. When he did, Bacon crouched down, urinated and was about to spring when Mr. Crutchfield said, “he’ll bite” and jumped out of the cage, slamming the door. Ms. Vallee explained that Bacon is a “fear biter” and will bite when out of his element and presented with people he does not know. Based on her experience and observance of Bacon’s behavior, Ms. Vallee did not believe Bacon should be released, and recommended euthanasia.

There was testimony from animal control officer, Darren Mack, who testified that he found blood on the dog’s head, but not on the collar the day of the | ¿incident. He took the animal to the Jefferson Parish Animal Shelter for confinement.

Elizabeth Van Dyke, a veterinarian from the Prytania Veterinary Hospital in New Orleans who made an evaluation of the dog, testified she accompanied Mr. Parker on a visit with Bacon one afternoon. The dog appeared friendly, relaxed and healthy, and wagged his tail when Dr. Van Dyke arrived for the evaluation. He was wagging his tail, jumping up and down, and seemed excited. An employee of the facility removed Bacon from his cage and put him in a fenced area used for presentation of dogs for potential adoption. He was on a leash attached to a metal tie line to restrict his movement. Initially, Bacon was wagging his tail and eager to interact with people. However, Dr. Van Dyke testified that when a doll was presented to him, Bacon “definitely gave a very excited and aggressive reaction to the doll, and actually busted through the line to attack the doll.”

Mr. Parker testified that he acquired Bacon as a pet when the dog was about six-weeks-old, and that Bacon was about one-year-old at the time of this incident. Bacon is an inside pet who travels with his owner and has never bitten anyone before. He was in Metairie on business and was staying at the La Quinta. Mr. Parker was not at the hotel when the incident happened.

After the incident Mr. Parker went to visit Bacon at the animal shelter. Bacon was cowered down, until the pen was open and he recognized his owner, then Bacon was excited and happy. Mr. Parker stated that Bacon look “very poorly.” He was loosing some hair, he had kennel cough and he “had sores on his elbow areas on a couple of his legs.” Mr. Parker did not think Bacon was being properly cared for in the shelter.

| BMr. Parker testified that he accompanied Dr. Van Dyke when she went to the shelter to evaluate Bacon. He stated that Bacon did not act aggressively and, although he did break the chain, it was weak and easily broken.

After hearing the evidence, the trial judge rendered judgment affirming the judgment of the Mayor’s Court, finding that Bacon is “determined to be and is declared to be dangerous, fierce and vicious as defined by the Kenner Code of Ordinances, Chapter 4, Section 83 et seq.” After making that finding, the trial court [482]*482ordered Bacon to be “euthanized in a humane matter as quickly as possible, after any delays provided by law have elapsed.”

Defendant’s first two assignments of error present the question of whether the Louisiana Code of Evidence rules apply to a trial de novo in this case. At the beginning of trial, there was a discussion of the nature of the de novo trial. The animal control officers objected to the de novo trial, arguing that consideration of the appeal should be done by a review of the record. Defendant argued that he moved for, and was granted, a trial de novo. Because there was no transcript of the may- or’s court proceeding, the trial judge proceeded with the de novo trial.

SCOPE OF REVIEW

We are confronted first with whether the scope of review in the district court from a ruling of the mayor’s court is on the record only and whether the judge in the mayor’s court was capricious and arbitrary, or whether the hearing in the district court involves a de novo one.

Defendant claims under La. R.S. 13:18961 a de novo hearing is required.

| (¡Plaintiff, on the other hand, claims that La. R.S. 33:441.1 C2 authorizes the may- [483]*483or’s court to make a determination on the issue in this case, that La. R.S. 33:441.1 C is controlling and does not require a de novo trial. Therefore, plaintiff maintains the review in the district court should have been on the record. We reject plaintiffs argument in this case.

There is no record of the testimony in the mayor’s court and we conclude in reliance on La. R.S. 13:1896, and particularly under the circumstances of this case, the district court judge properly conducted a de novo hearing in this matter.

Defendant argues that he made a continuous objection to the judge’s use of more lax administrative rules in the de novo trial, that argument was made in pre-trial proceedings not available for review. Nonetheless, during the trial defendant |7did object occasionally, indicating his objection was continuous. We find that is sufficient to preserve the matter for our review on appeal.

It appears defendant seeks reversal of the trial court’s judgment based on a general objection to the evidentiary rules applied by the trial judge.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of West Virginia v. Michael and Kim Blatt
774 S.E.2d 570 (West Virginia Supreme Court, 2015)
Gonzalez v. Government Employees Insurance Co.
32 So. 3d 919 (Louisiana Court of Appeal, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
918 So. 2d 479, 2005 WL 3179678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-kenner-v-parker-lactapp-2005.