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Frouz v. Commonwealth

Supreme Court of Virginia

December 6, 2018


          FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard E. Gardiner, Judge



         By summons issued pursuant to Code § 3.2-6540, Nahid Azad Frouz ("Frouz") was ordered to respond to an allegation that she was the owner of a "dangerous dog." After a bench trial, the circuit court found that the dog was a "dangerous dog" within the meaning of Code § 3.2-6540(A), [1] that Frouz was the custodian or harborer of the dog, and ordered Frouz to pay restitution for the injuries to a dog belonging to Kimberly Kern ("Kern"). Frouz appeals the circuit court's judgment to this Court.

         I. BACKGROUND

         A. The Location

         Frouz and her husband, Ali Aalai ("Aalai"), live on property abutting Belmont Bay in Fairfax County. Blue, their son Mohammad's pit bull, stayed in the home while Mohammad studied for exams in New York. Kern lives next door to Frouz and Aalai and owns three dogs: Gunston, Mason, and Belmont. Kern's property has a two-acre yard also abutting Belmont Bay near the mouth of Massey Creek. Between the houses is a wooded area overgrown with bamboo, most of which belongs to Frouz and Aalai as their property line came up to the edge of the wooded area near Kern's boat ramp. This boat ramp is next to a dock at the edge of Kern's yard where it meets the shoreline of Belmont Bay.

         Patricia Klein ("Klein") testified as follows at trial. On July 5, 2016, Klein and her boyfriend Dennis were visiting Kern. Klein, Dennis, and Kern's daughter Caroline launched two kayaks from Kern's boat ramp into Belmont Bay. Kern's three dogs were out in her yard when Klein, Caroline, and Dennis left in the kayaks. Gunston and Belmont stayed in Kern's yard, but Mason followed the kayaks along the shoreline past the wooded area and Frouz's yard. Klein and Dennis turned around to go back to the boat ramp in order to put Mason in a kennel. When they got close to shore, they saw Blue on the beach "walking back and forth." Klein testified that Blue and Mason were at the boat ramp while Gunston and Belmont were on the dock. Klein and Dennis paddled away from the boat ramp in the opposite direction from Frouz's house to see if Kern's dogs would return to Kern's house but Mason followed them. After a few moments, they returned to the boat ramp to find Blue still on the beach.

         Klein and Dennis paddled back to Frouz's property to get someone to call Blue away. They saw a woman and a boy in Frouz's yard and called to them "to get their dog back." The woman called out to Blue but he did not react so the woman approached Blue, who was then "very close to the boat ramp." At that point, Blue and Mason stood very close to each other "in that kind of staring contest" until Caroline called Mason. When Mason turned to look at Caroline, Blue jumped on top of Mason on the boat ramp. Gunston got between the other two dogs and Blue started to bite Gunston's "neck and his throat and kind of trying to drag him away."

         Klein identified a photograph of a beach area below the boat ramp where Blue dragged Gunston after biting him. The photograph showed that the line between Kern's property and Frouz's property was at the edge of the boat ramp. Kern testified that the boat ramp, dock and shed belong to her and her husband. On the day of the attack, Kern saw Blue on top of Gunston at the base of the boat ramp.

         Frouz's brother, Masoud Azad Frouz ("Masoud"), testified he was staying with Frouz on the day of the attack and saw Kern's three dogs running up and down on the riverbank at the edge of Frouz's property.

         Annick Panahi ("Panahi") testified that she was with her grandchild in Frouz's yard when she saw three dogs running behind the fence in the yard. She indicated that Gunston tried to dig under the fence and got its head inside Frouz's yard. She further testified that Blue fought Gunston, forcing him back, and then that she saw Gunston run toward the water. According to Panahi, the two dogs continued fighting "[b]y the water, by the beach" at the bottom of Frouz's yard.

         B. Ownership/Custodianship

         During the course of the trial, evidence was presented regarding statements made by Frouz that bear on the issue as to whether she was an owner or custodian of Blue. Prior to the incident, Frouz had written to the neighbors to alert them to Blue's aggressive nature. After the incident, Frouz called Kern to advise her that "her dog [Blue] was fine . . . and that everybody needs to be more aware of their dogs." Although Kern testified she thought Frouz owned Blue, the evidence presented established that Frouz had written in an email that her son actually owned Blue.

         Frouz also testified on direct examination that Mohammad owned Blue and that he had asked her husband, Aalai, to take care of Blue while he studied for exams. She denied ever taking care of Blue and maintained that only Aalai took care of Blue. In response to questions from the court, Panahi also testified that only Aalai fed and watered Blue. Regarding events after the attack, Frouz testified that she "called [Kern] back . . . because I could not get in touch with the animal control to go and save my dog." She ...

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