ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
KAREN C. HORSEMAN JAMES B. OSBORN
Indianapolis, Indiana Assistant Corporation Counsel
Office of Corporation Counsel
COURT OF APPEALS OF INDIANA
NAOMI and GRANT STEWART, )
vs. ) No. 49A02-0305-CV-408
CITY OF INDIANAPOLIS, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49F12-0207-OV-2511
October 28, 2003
OPINION - FOR PUBLICATION
After Naomi and Grant Stewarts dog, Sheba, bit a child on three different
occasions, the City of Indianapolis brought suit against them for violating the ordinance
addressing the way in which dangerous animals are kept. The Stewarts appeal
several aspects of the trial courts decision. Because it is dispositive, we
restate and address only this issue:
Whether the trial court erred in granting summary judgment in favor of the
City on its complaint requesting an injunction and fines against the Stewarts for
violating the ordinance prohibiting dangerous animals from being unconfined and unrestrained where the
incidents alleged all took place on the Stewarts property from which the dog
was unable to escape.
FACTS AND PROCEDURAL HISTORY
The Stewarts own a retriever mixed-breed dog named Sheba. The back yard
of their home is enclosed by a six-foot tall privacy fence which has
a single gate that is shorter than six feet tall, but taller than
Sheba. Their front yard is bounded by an invisible fence on which
Sheba is trained. On March 28, 2001, C.H., a child, was playing
with the Stewarts children in the Stewarts back yard. As C.H. swung
on the Stewarts swingset, Sheba growled at and then bit C.H.
On July 28, 2001, the Stewarts placed Sheba inside their garage. They
raised the garage door high enough to allow air to circulate, but low
enough that Sheba could not get out. C.H. was playing with the
Stewarts children, who were placing their hands under the garage door to pet
Sheba. When C.H. refused to do the same, one of the Stewarts
children grabbed C.H.s hand and forced it under the garage door. Sheba
again bit C.H.
On June 26, 2002, M.P., a child, was playing with the Stewarts children
in their driveway. Grant Stewart exited his home through the front door,
then reentered the home, leaving the front door open. Sheba exited the
home through the front door, ran to the driveway, and bit M.P.
On August 14, 2002, the City filed its amended complaint for injunction and
fine against the Stewarts for violating Section 531-205 of the municipal code of
Indianapolis based on the three biting incidents. Counts I, III, and IV
of the amended complaint allege that the Stewarts violated the ordinance by allowing
the dog named Sheba to go unconfined and unrestrained on their premises so
that it attacked [the children] without being provoked by [them].
at 3-4. Count II alleged that the Stewarts violated the ordinance by
allowing Sheba to be at large. The City asked the trial court
to fine the Stewarts $2500 for each violation and to permanently enjoin the
Stewarts from allowing any animal from going unconfined and unrestrained on their premises
or to run at large in the City.
The City and the Stewarts then filed cross-motions for summary judgment on Counts
I, III, and IV. The trial court granted summary judgment in favor
of the City on Counts I and IV and denied summary judgment to
either party on Count III. It then entered a permanent injunction and
assessed a fine against the Stewarts. The Stewarts now appeal.
DISCUSSION AND DECISION
The Stewarts maintain that the trial court erred in granting summary judgment in
favor of the City on Counts I and IV of the Citys amended
complaint because at the time of the incidents, their dog, Sheba, was confined
within the meaning of the ordinance.
In reviewing the grant of a motion for summary judgment, this court stands
in the shoes of the trial court, applying the same standards in deciding
whether to affirm or reverse summary judgment.
Wilson v. Lincoln Fed. Sav.
Bank, 790 N.E.2d 1042, 1046 (Ind. Ct. App. 2003); Ross v. Indiana State
Bd. of Nursing, 790 N.E.2d 110, 115 (Ind. Ct. App. 2003). We
do not weigh evidence, but will liberally construe the facts in the light
most favorable to the nonmoving party. Wilson, 2003 WL 21499902 at *2-3;
Ross, 790 N.E.2d at 116. Summary judgment should be granted only when
the designated evidence shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law. Ind. Trial Rule 56(C); Poznanski ex rel. Poznanski v.
Horvath, 788 N.E.2d 1255, 1258 (Ind. 2003); Reeder v. Harper, 788 N.E.2d 1236,
1240 (Ind. 2003); Wilson, 790 N.E.2d at 1046; Ross, 790 N.E.2d at 115.
Accordingly, on appeal, we must determine whether there is a genuine issue
of material fact and whether the trial court has correctly applied the law.
Wilson, 790 N.E.2d at 1046. The party appealing the grant of
summary judgment has the burden of persuading this court on appeal that the
trial courts ruling was improper. Id.; Ross, 790 N.E.2d at 116.
To obtain summary judgment, the moving party, relying on specifically designated evidence, must
make a prima facie showing that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law.
Ross, 790 N.E.2d at 115. If the moving party meets these
two requirements, the burden shifts to the nonmovant to set forth specifically designated
facts showing that there is a genuine issue for trial. Id.
A genuine issue of material fact exists where facts concerning an issue which
would dispose of the litigation are in dispute or where the undisputed material
facts are capable of supporting conflicting inferences on such an issue. Poznanski,
788 N.E.2d at 1258; Ross, 790 N.E.2d at 115. Even if the
facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect
application of the law to the facts. Ross, 790 N.E.2d at 115.
Specific findings and conclusions by the trial court are not required, and although
they offer valuable insight into the rationale for the judgment and facilitate our
review, we are not limited to reviewing the trial courts reasons for granting
or denying summary judgment.
Id. at 116. A grant of summary
judgment may be affirmed upon any theory supported by the designated materials.
Id. In addition, where, as here, the parties filed cross-motions for summary
judgment, our standard of review is not altered. Id. We consider
each motion separately to determine whether the moving party is entitled to judgment
as a matter of law. Id.
Section 531-205 of the municipal code of Indianapolis states in pertinent part:
(a) For purposes of this section, the words
vicious, fierce or dangerous animal
mean and include an animal which has:
(1) Attacked a person without having been provoked by that person;
(2) Attacked, at some place other than its owners or keepers property, another
(3) Chased or approached a person at some place other than its owners
or keepers property, in a menacing fashion or apparent attitude of attack.
(b) It shall be unlawful for an owner or keeper of a vicious,
fierce, or dangerous animal to cause, suffer, or allow it to go unconfined
and unrestrained on the owners or keepers premises, or to run at large,
in the city.
Accordingly, in order to violate the ordinance, the owner or keeper of the
animal in question must have permitted the dog to be unconfined and unrestrained.
Neither of these terms is defined by the ordinance.
The rules relating to statutory construction are equally applicable to construing ordinances.
Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981, 986 (Ind. Ct. App.
1999), trans. denied (2000). When interpreting a legislative enactment, the words and
phrases employed are to be given their plain, ordinary, and usual meaning unless
a contrary purpose is clearly shown. Essany v. Bower, 790 N.E.2d 148,
151 (Ind. Ct. App. 2003); Gary/Chicago Airport Bd. of Authority v. Maclin, 772
N.E.2d 463, 471 (Ind. Ct. App. 2002); State v. Eilers, 697 N.E.2d 969,
970 (Ind. Ct. App. 1998). In determining the plain and ordinary meaning
of a term, courts may use English language dictionaries as well as consider
the relationship with other words and phrases. Essany, 790 N.E.2d at 151;
Eilers, 697 N.E.2d at 971.
Interpreting another citys animal control ordinance, we have explained that the word restrain
means to actively control and prevent conduct, rather than mere containment.
717 N.E.2d at 986-87 (citing Blacks Law Dictionary 1214 (6th ed. 1991) (confinement
or holding back from action); American Heritage Dictionary 1438 (3d ed. 1992) (to
hold back or keep in check; control)). We have not had
previous occasion to define the term confine in this context, so we look
instead to the dictionary. Confine means to keep within limits; restrict.
Websters New World Dictionary 298 (2d college ed. 1970).
In this case, the undisputed designated evidence related to Count I establishes that
at the time Sheba bit C.H., she was confined in the back yard
of the Stewarts home which was bounded by a six-foot tall privacy fence.
The fence had a single gate, which was shorter than six feet
tall, but taller than Sheba. Thus, at the time of the incident,
Sheba may have been unrestrained, but was not unconfined within the meaning of
the ordinance because her movement was restricted to the Stewarts back yard.
Because an owner or keeper violates the ordinance only when the animal is
both unrestrained and unconfined, the Stewarts did not violate the ordinance on this
occasion. The trial court erred in granting summary judgment in favor of
the City, and the Stewarts are entitled to summary judgment on this count
of the Citys complaint.
Likewise, the undisputed evidence related to Count III establishes that at the time
of the incident, Sheba was confined to the garage of the Stewarts home
and that the garage door was lowered sufficiently to prevent her escape.
Again, this evidence shows that the Stewarts did not violate the ordinance because
they did not permit Sheba to go unconfined. Rather, Shebas movement was restricted
to the Stewarts garage. The Stewarts are entitled to summary judgment on
this count as well.
Finally, the undisputed evidence related to Count IV shows that at the time
Sheba bit M.P., M.P. was playing in the driveway of the Stewarts home
when Sheba exited the home through the open front door and entered the
front yard. The evidence also establishes that an invisible fence bounded the
Stewarts front yard and was powered on at the time of the incident.
Further evidence showed that Sheba was trained not to cross the fence
was wearing a collar that would have caused her to be shocked
if she tried to exit the area bounded by the fence. Sheba
may have been unrestrained but was not unconfined under the circumstances because her
ability to move was kept within limits by the invisible fence. Accordingly,
we hold that the trial court erred in granting summary judgment in favor
of the City. The Stewarts were entitled to summary judgment on this
count as well.
BAILEY, J., and VAIDIK, J., concur.