            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



MICHELLE REID, also known as ALPENA                                 UNPUBLISHED
COUNTY ANIMAL CONTROL OFFICER,                                      July 2, 2019

               Petitioner-Appellee,

v                                                                   No. 340955
                                                                    Alpena Circuit Court
KATRINA KRAMER and THOMAS                                           LC No. 17-007971-AP
MAINFIELD,

               Respondents-Appellants.


Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        Respondents appeal by leave granted1 the circuit court’s order upholding the district
court’s order to euthanize respondents’ dog, “Bruiser.” We reverse and remand to the district
court.

                                       I. BACKGROUND

        In July of 2017, petitioner, Alpena County Animal Control Officer Michelle Reid, filed a
complaint against respondents alleging that “Bruiser”, described as “a black and tan German
Shepherd dog” , had attacked or bit a person. The victim, Joshua Henderson, testified at a show
cause hearing that as he was jogging past respondents’ house on May 13, 2017, Bruiser ran
toward Henderson, barked and lunged at him, and bit his left bicep and left forearm. After
Henderson struck Bruiser “a couple of times”, Bruiser released Henderson’s arm, and Henderson
backed away until he was at a far enough distance to leave the area. Henderson described his
injuries as teeth marks and scrapes to his upper left bicep and several puncture wounds to his left
forearm. Henderson received three stitches and an x-ray to make certain that none of Bruiser’s


1
 Reid v Kramer, unpublished order of the Court of Appeals, entered May 24, 2018 (Docket No.
340955).



                                                -1-
teeth were left in the wounds. It was determined that rabies was not an issue. Henderson
testified that he had jogged this same route “almost every day” and at different periods of the day
for the approximately one year that he had lived in the area. Henderson explained that after the
attack he had changed his jogging route, that there were several houses in the area, and that there
were children often walking or riding bikes in the area.

       Respondents stated that they had owned Bruiser for three years, that this was the first
time Bruiser had attacked or bitten a person, that Bruiser had been raised with children and often
had children around him, and that Bruiser often went next door to visit a neighbor. The
prosecutor, clarifying that euthanization was not being sought at that time, indicated that
respondents were in the process of completing a fence in their backyard, and that if the fence was
not “acceptable” upon inspection, the prosecution would request that Bruiser be destroyed. The
prosecutor additionally noted that Bruiser had already been sterilized.2

       The district court found that Bruiser had caused serious injury to Henderson, and, noting
the possibility that Bruiser might injure a child, the court ordered that Bruiser should be
destroyed. Respondents appealed to the circuit court, which affirmed the district court’s
decision. The circuit court concluded that Bruiser was a “dangerous animal” under MCL
287.321(a) because the undisputed evidence showed that he had attacked and bit Henderson, that
Henderson did not provoke Bruiser, and that no statutory exception applied. On respondents’
motion, the circuit court stayed euthanization proceedings pending respondents’ appeal to this
Court.

                                         II. ANALYSIS

        Respondents argue that the circuit court erred in determining that Bruiser was a
“dangerous animal” under MCL 287.321(a) and, alternatively, that the evidence did not support a
finding that Bruiser caused death or serious injury or that he was likely to do so in the future.
Although we conclude that Bruiser was a “dangerous animal” under the statutory definition, we
agree with respondents that the evidence was insufficient to support a conclusion that he caused
serious injury or was likely to cause death or serious injury in the future, and that the lower
courts therefore erred by ordering Bruiser’s destruction under MCL 287.322(3).3




2
  See MCL 287.322(4) (requiring the court, if it finds that an animal is a dangerous animal but
has not caused serious injury or death, to order the owner to take steps to protect the public, such
as installing fencing or having the animal sterilized).
3
  We note that respondents’ alternative arguments were not raised in the district court or circuit
court and are therefore unpreserved and “not ordinarily subject to review.” Booth Newspapers,
Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). See also Smith v
Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). However, we
have chosen to review these arguments because they hold merit and the failure to do so would
result in “manifest injustice.” Foerster-Bolser, 269 Mich App at 427.


                                                -2-
       Questions of statutory interpretation, construction, and application are reviewed de novo.
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). The trial court’s
findings of fact are reviewed for clear error. MCR 2.613(C). Clear error occurs when “after a
review of the record, this Court is left with a definite and firm conviction that a mistake was
made.” Lawrence v Burdi, 314 Mich App 203, 220; 886 NW2d 748 (2016).

       MCL 287.321(a) defines what constitutes a “dangerous animal”:

              (a) “Dangerous animal” means a dog or other animal that bites or attacks a
       person, or a dog that bites or attacks and causes serious injury or death to another
       dog while the other dog is on the property or under the control of its owner.
       However, a dangerous animal does not include any of the following:

               (i) An animal that bites or attacks a person who is knowingly trespassing
       on the property of the animal’s owner.

                 (ii) An animal that bites or attacks a person who provokes or torments the
       animal.

              (iii) An animal that is responding in a manner that an ordinary and
       reasonable person would conclude was designed to protect a person if that person
       is engaged in a lawful activity or is the subject of an assault.

                 (iv) Livestock.

MCL 287.322 describes the procedure that must occur for an animal to be destroyed. The statute
states in pertinent part:

               (1) Upon a sworn complaint that an animal is a dangerous animal and the
       animal has caused serious injury or death to a person or has caused serious injury
       or death to a dog, a district court magistrate, district court, or a municipal court
       shall issue a summons to the owner ordering him or her to appear to show cause
       why the animal should not be destroyed.

                                              * * *

               (3) After a hearing, the magistrate or court shall order the destruction of
       the animal, at the expense of the owner, if the animal is found to be a dangerous
       animal that caused serious injury or death to a person or a dog. After a hearing,
       the court may order the destruction of the animal, at the expense of the owner, if
       the court finds that the animal is a dangerous animal that did not cause serious
       injury or death to a person but is likely in the future to cause serious injury or
       death to a person or in the past has been adjudicated a dangerous animal.
       [Emphasis added.]

        In the present case, there was no dispute that Bruiser attacked and bit Henderson.
Because Bruiser was “a dog . . . that bites or attacks a person,” MCL 287.321(a), and because
there is no indication that any of the enumerated exceptions apply, he was a “dangerous animal”

                                                -3-
for purposes of MCL 287.322(3). However, in order for an animal to be destroyed, it must be
more than dangerous; it must have caused death or serious injury to a person or dog, or, if the
animal did not cause death or serious injury, it must be likely to do so in the future or have been
previously determined to be a “dangerous animal.” MCL 287.322(3).

        There is no dispute that Bruiser attacked Henderson and that Henderson survived. No
other dog was involved, and the record does not show that Bruiser was previously determined to
be a dangerous animal. Therefore, there are only two scenarios possible in order to allow for the
dog to be destroyed. The first is that Bruiser’s attack on Henderson caused “serious injury,”
which is defined to mean “permanent, serious disfigurement, serious impairment of health, or
serious impairment of a bodily function of a person.” MCL 287.321(e). While the scrapes,
puncture wounds, and three stitches were undoubtedly uncomfortable for Henderson to endure,
these injuries did not rise to the level of a “serious injury” as defined under MCL 287.321(e).
There was no evidence to show that Henderson endured permanent injury to his forearm or bicep
or disfigurement of his forearm or bicep, or that a bodily function was impaired.

        The second possible scenario is that Bruiser was likely to cause serious injury or death in
the future. MCL 287.322(3). Henderson testified that he had jogged the same route “almost
every day” and at different periods of the day for approximately one year. This was the only
time that Bruiser attacked him. Additionally, although Henderson stated that there were “often
children on bikes and children walking that I would encounter on my runs”, there was no
indication that Bruiser ever attacked or acted aggressively toward them. Furthermore,
respondents stated that they had owned Bruiser for three years, that this was the first time Bruiser
had attacked a person, that Bruiser often had children around him and had been raised with a
young child, and that Bruiser had often gone next door to visit a neighbor.

       The district court did not base its decision to order Bruiser’s destruction on the language
of MCL 287.322 or on concrete evidence demonstrating that Bruiser was likely to attack or bite a
person in the future. Instead, the district court stated:

       Because of the possibility. If tomorrow that animal goes out and injures or kills a
       child, you and I and everybody else here, how would we feel? See? How would
       we feel? I can’t take that risk because we know. [Emphasis added.]

Under the district court’s reasoning, every animal that had attacked or bitten a person could be
destroyed because, by attacking or biting once, “we know” that it is now more likely to do so
again. This interpretation of MCL 287.322(3) is improper because it would render the other
portions of this subsection nugatory or surplusage, a violation of statutory interpretation
principles. See Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 714; 664 NW2d 193
(2003). There would be no reason to include the first scenario, i.e., that the animal has caused
death or serious injury to a person, in the statute because every animal, by virtue of the fact that
it attacked or bit a person, would be likely to cause death or serious injury in the future. In other
words, the animal, by being a “dangerous animal,” could be destroyed. We believe a proper
reading of MCL 287.322(3) requires some other evidence, in addition to the fact that the animal




                                                -4-
has attacked or bitten once, indicating that the animal is likely to cause death or serious injury to
a person in the future, such as evidence of prior attacks, aggressive behavior, or the severity of
the attack or bite.4

        Therefore, the circuit court erred by affirming the district court’s order because the
evidence did not support a finding that Bruiser had caused serious injury or death to a person or
that he was likely to cause death or serious injury to a person in the future.5

      Reversed and remanded to the district court for proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                              /s/ Jonathan Tukel
                                                              /s/ Deborah A. Servitto
                                                              /s/ Michael J. Riordan




4
  We do not dismiss the possibility that there could be circumstances that would support a
finding that an animal was likely to cause death or serious injury in the future based on a single
incident. However, we do not believe that the facts of this case support such a finding.
5
 On remand, the district court shall apply MCL 287.322(4) and impose appropriate requirements
under MCL 287.322(4)(a)-(e).


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