Nature of the Case
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Facts
P and Ds enjoyed a friendly relationship as neighbors until the barking problem became intolerable. The alleged nuisance began when Ps acquired a Sheltie in late 2008. Sammie was left outside early in the morning when Ds would leave for work, and the dog would bark and yip throughout the day, until they returned home, causing a great deal of frustration. Because of Sammie's daytime barking P lost the desire to engage in outside activities, such as sunbathing and fishing off his dock. The dog's barking was often louder than the television inside his home. The constant barking rendered useless P’s in-home recording studio. P purchased a barking took for D, which transmits a high-pitched sound designed to curb a dog's barking, to no avail. D never visited a physician for sleep deprivation regarding the barking. T.J. was an aggressive 'attack dog' that was allowed to freely roam the neighborhood, attacking P's Dachshund on perhaps 10 occasions. B.B. was also a nuisance due to barking and would often accompany T.J. on his misadventures throughout the neighborhood. Ps' new dog has been attacked three times by T.J. since Ds still allowed him to roam free. Sandra Prince testified that upon visiting her brother, P, for a week, the incessant barking prevented her from being able to enjoy even the shortest amount of time outside her brother's lake home. Sutton, a neighbor, heard Ds' dogs bark on occasion even though he was 150 yards away. Sutton asserts that the barks were shrill and at times could even be heard inside his house but only faintly. Sutton testified that he witnessed Ds' dog attack another dog, which belonged to his friend Dixie Ramsay. Ds purchased a shock collar, which was also unsuccessful. Ds enrolled Sammie in an obedience school and got her medicine for animals with separation anxiety. Ds eventually gave the dog away to family friends to appease P. Ds stated that no one besides James or Ramsay had ever told them T.J. was aggressive. Ds also took measures to secure T.J. in a fence, as well as tethering while in the yard, but that as a result of her elderly mother's slow pace while entering and leaving the fenced-in yard, at times T.J. escaped. Ds built another gate in the fence to stop this occurrence. Smith, D's brother who lives about 100 yards away from Ds' house testified that he had heard the Sheltie bark before, but not from inside his house. He also testified that it was common to hear dogs bark in his neighborhood as there were so many. Smith asserted that he had never seen T.J. be aggressive toward anyone or even heard T.J. bark. The court ruled for Ds and P appealed.
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