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Pflaum v. Summit County Animal Control

Court of Appeals of Ohio, Ninth District, Summit

June 7, 2017

MARVIN B. PFLAUM, et al. Appellants
v.
SUMMIT COUNTY ANIMAL CONTROL Appellee

         APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 2015 CVH 2074

          APPEARANCES: JEFFREY HOLLAND and DANAMARIE K. PANNELLA, Attorneys at Law, for Appellants.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} Appellant, Marvin Pflaum, appeals the judgment of the Stow Municipal Court. This Court reverses and remands.

         I.

         {¶2} On July 13, 2015, Trixie Cleminshaw returned to her Hudson home after a bicycle ride and heard two dogs engaged in a quarrel. Upon exiting the garage, Cleminshaw observed two neighborhood dogs fighting near the street. Cleminshaw attempted to intervene by separating the larger dog, Edwin, from its smaller counterpart, Rudy. Cleminshaw was able to break up the fight, but not before Edwin bit her once on the hand.

         {¶3} One week after the incident, the Deputy Dog Warden issued a notice to Edwin's owner, Pflaum, stating that the Summit County Animal Control had reasonable cause to believe that Edwin was a dangerous dog. Pflaum filed a written request for a hearing pursuant R.C. 955.222(C), triggering a hearing before a magistrate where Animal Control had the burden of demonstrating that Edwin was a dangerous dog. The magistrate determined that Edwin did not meet the statutory definition of a "[d]angerous dog" pursuant to R.C. 955.11(A)(1)(a). Animal Control filed timely objections to the magistrate's decision. Animal Control then filed a supplemental brief and attached the hearing transcript. Pflaum filed a brief in opposition to the objections. On July 7, 2016, the trial court issued an order overturning the magistrate's decision on the basis that Animal Control demonstrated by clear and convincing evidence that Edwin was a dangerous dog.

         {¶4} On appeal, Pflaum raises one assignment of error.

         II.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED BY REVERSING THE MAGISTRATE'S DECISION FINDING THAT THE STATE FAILED TO PROVE THAT APPELLANT'S DOG MET THE STATUTORY DEFINITION OF "DANGEROUS DOG" BY CLEAR AND CONVINCING EVIDENCE.

         {¶5} In his sole assignment of error, Pflaum argues that the trial court abused its discretion when it reversed the ...


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