                                                                                                           C iU
              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II                                          2t1   R NOV 13   1   3: 5d
                                                                                                         ST,AT .    F           ON
THOMAS MORAWEK,                                                                     No. 44542 -5 -II

                                                                                                         B Y.
                                     Appellant,


         v.




CITY OF BONNEY LAKE,                                                     PUBLISHED IN PART OPINION


                                     Respondent.




        MELNICK, J. —       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               killed                                without   provocation.    Because substantial
                          dog              a   neighbor' s     cat




evidence does not support the lack of provocation finding, we reverse the dangerous dog

designation. But, because the 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.

                                                        FACTS


        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.
        As Morawek finished mowing, he noticed that Scout was no longer in the front yard. He
                                                                      Scout, but the   dog             there.    Morawek
went   into the backyard,   where    he    anticipated      finding                          was not




returned to his front yard and saw Scout sitting on the lawn. When Morawek called Scout into the

house, he     noticed a scratch on   the   dog' s   nose.
44542 -5 - II




         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.

         Lynne complained to Metro Animal Services, the animal control authority for Bonney

Lake, that Scout 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

            Luke looked                 the                       Scout   holding   Oriel   by   the   neck.    Luke scared
fighting.                  under              porch and saw




Scout away, and the dog ran off holding the cat. The Strongs never found Oriel.

         Animal Control Officer Nicole Smith served Morawek with paperwork 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.

         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 scuffling before he looked under the porch and saw Scout holding Oriel.
         Morawek      argued     that   no proof of an unprovoked attack existed.                  He hypothesized that


   t] he cat could have been in my yard under a bush or shrub, a dog stuck his nose under there and

        have been hit                              that           have                  this   whole    thing."    Report of
could                    by    the   cat and              could          precipitated




Proceedings ( RP) (    May     8, 2012)       at   30.   The hearing examiner disagreed and found no evidence

that Oriel provoked the attack. He concluded as follows:



 1 We refer to Lynn Strong and her son Luke by their first names for clarity.

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44542 -5 - II




                   I just think the evidence is clear that the dog attacked this cat and killed the
         cat on private property, not his own. How he got there, I don' t know; but he was
         there and he killed the cat.
                   So I will find that Scout is a dangerous dog.

RP ( May 8, 2012)         at    31.       The hearing examiner incorporated his oral findings into a written order

upholding the dangerous dog designation.

         Morawek then filed                  a writ of review    in   superior court.   The superior court, acting in an

appellate capacity, upheld the dangerous dog designation after rejecting the lack of provocation

argument:



                And then the argument is, is it with provocation or not with provocation?
         Dog versus cat? I think there is sufficient circumstantial evidence given the relative
         size of these animals that it would be without provocation.


RP ( Jan. 18, 2013)        at       23.   Morawek petitioned this court for discretionary review, and we granted

review solely on the lack of provocation issue.

                                                               ANALYSIS


I.       STANDARD OF REVIEW


         When examining a writ of review, we review the challenged administrative decision on the
record of the administrative tribunal, not on the decision of the superior court acting in its appellate

                                                         Auth., 171 Wn.            897, 904, 288 P. 3d 403 ( 2012).      We
capacity.       Nichols   v.    Seattle      Housing                        App.

treat any findings        of    fact      or conclusions of     law the   superior court made as surplusage.       Grader v.


                                                   876, 879, 728 P. 2d 1057 ( 1986).           Issues of law are reviewed de
City   of Lakewood, 45 Wn.                  App.

novo, and       issues   of    fact       are reviewed   for   substantial evidence.      City of Univ. Place v. McGuire,

 144 Wn.2d 640, 647, 30 P. 3d 453 ( 2001); Nichols, 171 Wn.                        App.   at   904. " Substantial evidence is


evidence in sufficient quantum to persuade a fair -minded person of the truth of the declared

premise."       Holland        v.   Boeing    Co., 90 Wn. 2d 384, 390 -91, 583 P. 2d 621 ( 1978).




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44542 -5 -II




           We apply the rules of statutory construction to local ordinances. Sleasman v. City ofLacey,

159 Wn.2d 639, 643, 151 P. 3d 990 ( 2007).                    Where an ordinance is unambiguous, construction is


not   necessary, because the             plain   meaning    controls.   McTavish v. City of Bellevue, 89 Wn. App.

561, 565, 949 P. 2d 837 ( 1998).             When words are not defined, we may refer to dictionary definitions

                                                         State, 91 Wn.   App.   530, 538, 958 P. 2d 1010 ( 1998).     In
and   to   common usage.             Armstrong      v.




addition, when                           an ordinance, we must give      meaning to      all words and clauses.   Gilbert
                         construing


H. Moen Co.         v.   Island Steel Erectors, Inc., 128 Wn.2d 745, 762, 912 P. 2d 472 ( 1996).


II.        LACK OF PROVOCATION


           The BLMC defines a dangerous dog as any dog that, according to the city records,

           1[    h] as inflicted severe injury on a human being without provocation while on
           public or private property; 2 [ h] as killed a domestic animal without provocation
           while off the owner' s property; or 3 [ h]as been previously found to be potentially
           dangerous,          the   owner       having   received    notice    of   such,   and the dog again
           aggressively bites, attacks, or endangers the safety of humans or domestic animals.
BLMC 6. 04. 010( G). 2

           The hearing examiner upheld Scout' s designation as a dangerous dog under subsection (2)
of    this definition.          The only issue here is whether substantial evidence supports the hearing

examiner' s finding that Scout killed Oriel without provocation.

           The term "          provocation"      is undefined in the municipal code, so we look to its ordinary

meaning, as supplied by the dictionary definition. State v. Silva, 106 Wn. App. 586, 591, 24 P. 3d




 2 The dangerous dog designation required Morawek to pay a $250 permit fee to the Animal Control
 Agency         as well as an annual $       100 to renew the permit; obtain a surety bond or liability insurance
 in the sum of $500, 000; tattoo or microchip his dog; pass a sight inspection of his dog' s premises;
 provide photographic identification of his dog; and provide proof that his dog had been neutered
 and vaccinated          for   rabies.   See BLMC 6. 04. 183, . 184, . 186.




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44542 -5 -II




477 ( 2001).     Provocation is the act of inciting another to do something, or something that affects

a person' s reason and self -control. BLACK' S LAW DICTIONARY, at 1346 ( 9th ed. 2009).

         Morawek argues that this definition requires an observation of how an incident started. We

disagree.       Evidence can be either direct or circumstantial, and one type of evidence is not

necessarily more or less valuable than the other. Rogers Potato Serv., LLC v. Countrywide Potato,
LLC, 152 Wn.2d 387, 391, 97 P. 3d 745 ( 2004).                However, as Morawek correctly asserts, nobody

saw how the fight between Scout and Oriel began. Compare Commonwealth v. Seyler, 929 A.2d

262, 264 -66 ( Pa. Commw. 2007) ( when             neighbor called out to see if dogs' owner needed help, and

dogs ran over to neighbor and bit her, the evidence showed lack of provocation); McCoy v. Lucius,

839 So. 2d 1050, 1055 ( La. App. 2 Cir. 2003) (              plaintiff's testimony that neighbor' s dog charged

her    and   her dogs   showed neighbor' s        dog   provoked     the   attack).    Additionally, this is not a case

where there is considerable circumstantial evidence to show that the incident started without

provocation, as there was in Logan County Animal Control Warden v. Danley, 569 N.E.2d 1226,

 1229 ( Ill.   App.   3d 1991).    In that case, despite no eyewitness testimony to the attack, the evidence

showed that the defendant' s dogs ran loose and were seen around the plaintiff' s hog pen when

dead    and    injured hogs   were   discovered.        When combined with the fact that the hogs had been in

the fenced pen for only two days, the evidence supported an inference that the hogs did not provoke
the attack. Logan County Animal Control Warden, 569 N.E.2d at 1229.

             The City responds that Scout' s act of trespassing on the Strong property shows that he
 provoked the attack and nullifies any claim that the cat supplied the provocation. We agree that
                                   the Strongs'                    which   satisfied   the " location"   element of the
 the   killing   occurred     on                   property,


 dangerous dog definition. We disagree, however, with the City' s argument that the location of the




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44542 -5 -II




killing also proves it occurred without provocation. This argument conflates two elements of the

dangerous dog definition into one and renders the " lack of provocation" element superfluous.

            The City adds that it would be relatively impossible for a cat to scratch a dog' s nose without

the dog poking into the " personal space" of the cat and that the act of the dog' s nose coming toward
the   cat would   be   provocation.      Resp' t' s Br.   at   11. This argument is speculative. There are no facts


in the record to support this proposition. The evidence showed that Oriel roamed freely and passed

through Morawek'         s   front   yard   regularly. Additional evidence showed that Scout was trained to


stay   on   Morawek'     s   property.   As Morawek argued below, it is possible that the cat provoked the


attack by scratching Scout' s nose when the dog stuck it under a bush on the Morawek property.

We reject the City' s argument that the scratch on Scout' s nose is proof of provocation.

            The City also argues that because the Strongs did not hear anything before they heard the
                         the   porch,    the   attack   began   with   the   shriek and was unprovoked.   Here again,
cat' s shriek under



this argument is rooted in speculation. The fact that the Strong' s first indication of a fight was a

shriek does not prove when the incident began or whether it was provoked or unprovoked.

            The City also cites the superior court' s observations regarding the relative size of the
animals as evidence of lack of provocation. As stated earlier, any findings by the superior court

are surplusage. Moreover, the court' s observations were not evidence and were not based on the

evidence.       At the   hearing,     no evidence showed          the   size of either animal.   Even if we may take

judicial notice of the fact that dogs are generally larger than cats, this fact alone does not show that

 Scout attacked Oriel without provocation.


             We agree with Morawek that the finding that Scout acted without provocation is not

 supported      by   substantial      evidence,     and we reverse the superior court order upholding the


 dangerous dog designation.




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44542 -5 - II




         A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2. 06. 040, it is so ordered.

                                              ATTORNEY FEES AND COSTS


         Morawek argues that he is entitled to an award of attorney fees and other expenses under

RCW 4. 84. 350. In the alternative, he requests an award of statutory attorney fees and costs under

RAP 14. 2 and RAP 14. 3.


         A qualified party who prevails in a judicial review of an agency action is entitled to an

award of attorney fees under RCW 4. 84. 350( 1) unless the court finds that the agency action was

substantially justified        or   that   circumstances         make   an   award unjust.    Eidson v. State Dep' t of

Licensing,      108 Wn.   App.      712, 731, 32 P. 3d 1039 ( 2001).             A " qualified party" is an individual

whose net worth did not exceed one million dollars at the time the initial petition for judicial review

was   filed. RCW 4. 84. 340( 5).           A qualified party prevails if he obtains " relief on a significant issue

that achieves some benefit" that he sought. RCW 4. 84. 350( 1).

         The City does not challenge Morawek' s assertion that he is a qualified party under this

statute, and our decision shows that he has obtained relief on a significant issue in this case. The

City does argue, however, that its actions in obtaining and defending the dangerous dog
designation were substantially justified.

          An action is substantially justified if it had a reasonable basis in law and in fact; it need not
be   correct,   only   reasonable.         Raven   v.   Dep' t   of Soc. & Health Servs., 177 Wn.2d 804, 832, 306


P. 3d 920 ( 2013).      An agency action that is arbitrary and capricious is not substantially justified.
Raven, 177 Wn.2d          at   832. "      Arbitrary     and capricious action      is   willful and   unreasoning   action,
44542 -5 -II



without consideration and          in disregard      of   facts   and circumstances."     Johnson v. Wash. Dep' t of

Health, 133 Wn. App. 403, 414, 136 P. 3d 760 ( 2006).

            While ultimately incorrect, we do not see the City' s dangerous dog designation as

unreasonable. The evidence shows that Scout killed a neighbor' s cat on the neighbor' s property.


The " lack of provocation" element of the dangerous dog designation is undefined, and we do not

see   the    conclusion   that it   was       satisfied   as   arbitrary   and   capricious.   Accordingly, we deny

Morawek' s request for an award of attorney fees and other expenses under RCW 4. 84. 350.

            But, because Morawek is the substantially prevailing party on appeal, we grant his

                                                                                     RAP 14. 2         RAP 14. 3.   The
                                               statutory attorney fees
alternative    request    for   costs   and                                 under                and




amount awarded will be determined by our commissioner upon compliance with RAP 18. 1.

            We reverse the order upholding the dangerous dog designation, deny Morawek' s request

for attorney fees and other expenses under RCW 4. 84. 350, and grant his request for fees and costs
under RAP 14. 2 and RAP 14. 3 pending compliance with RAP 18. 1.




We concur:




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