THE CIRCUIT COURT OF FAIRFAX COUNTY Richard E. Gardiner,
E. POWELL JUSTICE.
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),  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.
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.
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.
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."
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.
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.
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.
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.
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 ...