Appeal from Pierce County Superior Court. Docket No: 12-2-09295-3. Judge signing: Honorable Susan K Serko. Judgment or order under review. Date filed: 01/18/2013.
Sean V. Small (of Lasher Holzapfel Sperry & Ebberson PLLC ), for petitioner.
Maili C. Barber, City Prosecuting Attorney, for respondent.
Authored by Rich Melnick. Concurring: Thomas R Bjorgen, Jill M Johanson.
Rich Melnick, J.
[184 Wn.App. 489] [¶1] Thomas Morawek appeals the superior court order upholding a hearing examiner's decision that his dog is a " dangerous dog" under the Bonney Lake Municipal Code (BLMC) because the dog killed a neighbor's cat without provocation. Because substantial evidence does not support the lack of provocation finding, we reverse the dangerous dog designation. But, because the city of Bonney Lake (City) did not act arbitrarily or capriciously in pursuing the dangerous dog designation, we deny Morawek's request for an award of attorney fees and other expenses under RCW 4.84.350. We grant his alternative request for statutory attorney fees and costs under RAP 14.2 and RAP 14.3, however, pending his compliance with RAP 18.1.
[¶2] Morawek mowed his front yard, accompanied by Scout, his Labrador mix. Scout had been trained to stay on the Morawek property. Neighbors had never reported any problems with Scout.
[¶3] As Morawek finished mowing, he noticed that Scout was no longer in the front yard. He went into the backyard, where he anticipated finding Scout, but the dog was not there. Morawek returned to his front yard and saw Scout [184 Wn.App. 490] sitting on the lawn. When Morawek called Scout into the house, he noticed a scratch on the dog's nose.
[¶4] Morawek's neighbor Lynn Strong met him in his front yard and informed him that Scout had killed her cat, Oriel. Morawek looked around his house and shrubs but could not find the cat.
[¶5] Lynn complained to Metro Animal Services, the animal control authority for Bonney Lake, that Scout had killed Oriel. She filed a statement explaining that she and her son Luke were sitting outside their residence when they heard a sound under the porch that sounded like animals fighting. Luke looked under the porch and saw Scout holding Oriel by the neck. Luke scared Scout away, and the dog ran off holding the cat. The Strongs never found Oriel.
[¶6] Animal Control Officer Nicole Smith served Morawek with paper work stating that Scout satisfied the definition of a dangerous dog under the BLMC because he had killed a domestic animal without provocation while off his owner's property. Morawek appealed the dangerous dog designation to the Bonney Lake chief of police and argued that it was more likely that the cat provoked the attack since the Strongs' cats passed through his front yard regularly. The police chief rejected his appeal, and Morawek appealed that decision to the city hearing examiner.
[¶7] Morawek, the Strongs, and Smith testified at the resulting hearing. Lynn testified that she did not see the animals under the porch. She added that her yard was not fenced and that Oriel had been an outside cat who came and went as she pleased. Luke testified that he heard a shriek and some ...