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Cappara v. City of Avon Lake

Court of Appeals of Ohio, Ninth District, Lorain

October 23, 2017

FRANCESCA CAPPARA Appellee
v.
CITY OF AVON LAKE Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE AVON LAKE MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. CVH 1600299

          MATTHEW O. WILLIAMS, Attorney at Law, for Appellant.

          JOHN L. REULBACH, JR., Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE.

         {¶1} Plaintiff-Appellant Francesca Cappara appeals from the decision of the Avon Lake Municipal Court upholding the determination that her two dogs were nuisance dogs. This Court affirms.

         I.

         {¶2} On June 29, 2016, Cappara left her yard and went for a bike ride. Cappara's two dogs, a large black dog named Teddy, and a large black dog with brown coloration named Reggie, went through the electric fence and left the yard after her. The dogs ran across the street into the driveway and tree lawn area of Ashley Rufus' property. Rufus' two sons, who were 5 and 7 years old, and a 12 year old neighbor boy were playing in the yard and Rufus was pulling a soccer goal up the driveway at the time the dogs left their yard. Rufus began screaming and yelling as the dogs came towards them. Reggie knocked over the neighbor boy and bit him, leaving a "tiny little hole in his baseball pants[.]" Teddy charged at Rufus' older son. Rufus' children ran inside and her older son was crying following the incident. Rufus herself was shaken up by the events. Shortly thereafter, the dogs met up with Cappara, who heard the commotion and turned back to take the dogs home. After the incident, Cappara went to the Rufus' house to ask if everyone was alright. She was informed that the neighbor boy had been bitten.

         {¶3} Ultimately, Rufus called the police and reported the incident. The Avon Lake City Prosecutor sent Cappara a notice that the Avon Lake Police Department had designated her dogs as nuisance dogs. The notice quoted the Ohio Revised Code definition of nuisance dog. Cappara was informed that she could appeal the determination by requesting a hearing through the Avon Lake Municipal Court. The notice cited to Avon Lake Codified Ordinances ("Loc. Ord.") 618.01, 618.17, 618.18 and 618.20 and R.C. 955.222 and 955.11.

         {¶4} Cappara sought review of the determination and a hearing was held. The trial court concluded that the dogs were nuisance dogs based upon the testimony and video evidence submitted at the hearing. Cappara and her husband filed pro se motions, which were construed as motions for reconsideration. Their motions were denied following a non-evidentiary hearing. Cappara has appealed the trial court's determination that the dogs were nuisance dogs, raising five assignments of error for our review.[1]

         II.

         ASSIGNMENT OF ERROR I

         TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT AFFIRMED THE DECISION OF THE CITY OF AVON LAKE TO DESIGNATE MRS. CAPPARA'S DOGS "NUISANCE DOGS" THOUGH THE CITY FAILED TO COMPLY WITH ITS OWN PROCEDURAL AND LEGAL REQUIREMENTS FOR SO DESIGNATING A DOG.

         {¶5} Cappara argues in her first assignment of error that the trial court erred in designating the dogs nuisance dogs when Defendant-Appellee the City of Avon Lake ("the City") failed to comply with the requirements of Loc. Ord. 618.18(b).

         {¶6} Loc. Ord. 618.18(b) states:

The Police Chief shall have authority to determine whether a dog is a nuisance dog, dangerous dog, or vicious dog. This determination may be based upon an investigation that includes observation of and testimony about the dog's behavior, including the dog's upbringing and the owner's or keeper's control of the dog, and other relevant evidence as determined by the Police Chief. These observations and testimony can be provided by any witness who personally observed the behavior. Such witness shall sign a written statement attesting to the observed behavior and agree to provide testimony regarding the dog's behavior. Forms for providing witness testimony shall be made available at the Police Department.

(Emphasis added.)

         {¶7} At the hearing, prior to the beginning of testimony, Cappara asserted that the ordinance required that she be "given a written statement, " which she later referred to as a complaint. The trial court told Cappara that there was no complaint in these cases, and instead informed her that she would have received a notice, which the prosecution then submitted into evidence. Cappara admitted to receiving the notice. Cappara did not then otherwise object or request that the designation be rescinded in absence of a written statement.

         {¶8} While Cappara appeared pro se at the hearing, she is still "presumed to have knowledge of the law and correct legal procedures so that [s]he remains subject to the same rules and procedures to which represented litigants are bound. [Sh]e is not given greater rights than represented parties, and must bear the consequences of h[er] mistakes." (Internal quotations and citations omitted.) Lathan v. Andrews, 9th Dist. Summit No. 28382, 2017-Ohio-4419, ¶ 12. Even assuming that Cappara could be viewed as having objected to not receiving the written statement, we see nothing in the plain language of the ordinance that requires that she be provided with a copy of the written statement in order for the designation to be valid. Further, nothing in the plain language of the ordinance suggests that the written statement must be included in the record of any appeal of the nuisance dog determination. Finally, Cappara has not explained how she was prejudiced by the absence of a written statement in light of the notice she received and the subsequent hearing at which the trial court reviewed the propriety of the nuisance dog designation. See Civ.R. 61.

         {¶9} Given all of the foregoing, Cappara's first assignment ...


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