Zageris v. Whitehall, 89AP-958

• Decision Date: 15 January 1991
• Docket Number: No. 89AP-958,89AP-958
• Citation: 72 Ohio App.3d 178,594 N.E.2d 129
• Court: Ohio Court of Appeals
• Parties: ZAGERIS, Appellant; Zageris, Appellee, v. CITY OF WHITEHALL et al., Appellees. *

Page 178

72 Ohio App.3d 178

594 N.E.2d 129

ZAGERIS, Appellant Zageris, Appellee, v. CITY OF WHITEHALL et al., Appellees. ^*

No. 89AP-958.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Jan. 15, 1991.

Dennis J. Fennessey, Columbus, for appellant.

Matan & Smith and Steven L. Smith, Columbus, for appellees.

RALPH WINKLER, Judge.

On January 26, 1988, Arturs Zageris, plaintiff-appellant (and his mother Alise Zageris), filed suit for a declaratory judgment, a petition for habeas corpus, civil rights claims pursuant to Sections 1983 and 1985, Title 42, U.S.Code, along with a number of tort claims, in the Franklin County Court of Common Pleas, based upon the enactment and subsequent actions taken by the city of Whitehall and its officials to enforce Whitehall Codified Ordinances Section 505.13. On January 27, 1988, the trial court denied the petition for a writ of habeas corpus; this denial is not an issue in this appeal. Defendants-appellees filed a motion for summary judgment as to all issues on March 14, 1989. The trial court, based upon the pleadings, affidavits, depositions and arguments presented, sustained appellees' motion as to every claim except those of slander and intentional infliction of emotional distress. The parties then filed a "Stipulation for Voluntary Dismissal," dismissing the slander and intentional infliction of emotional distress claims without prejudice. Appellant has now filed the instant appeal asserting the following assignments of error:

"First Assignment of Error

"The trial court committed reversible error when it eschewed the mandate of Civil Rule 56 to grant summary judgment.

"Second Assignment of Error

"The trial court erred in determining that Section 505.13 of the Codified Ordinances of Whitehall is not a zoning measure."

Appellant, Arturs Zageris, was the owner of a single-family dwelling located within Whitehall at 1058 Erickson Drive. Alise Zageris, the mother of Arturs and his brother Janis, lived with the appellant. In 1978, Alise and Janis acquired two Siberian Husky dogs which were kept at the Erickson Drive residence. The two dogs had pups in 1981, increasing the number of dogs on the property to nine. In 1983, continuous complaints from the surrounding neighbors resulted in appellant's conviction, pursuant to the "Howling Dogs" ordinance, Whitehall Codified Ordinances Section 505.03(a). Appellant received a fine of $250 and costs and the dogs were ordered removed. This court in Whitehall v. Zageris (Apr. 25, 1985), Franklin App. No. 83AP-805, unreported, 1985 WL 10262, affirmed the conviction, fine and costs, but reversed the trial court's order to remove the dogs. The citizen complaints concerning Alise Zageris' dogs continued. The complaints were a contributing factor in the creation of Section 505.13, "Maximum Number of Dogs," in 1984. Whitehall adopted Ordinance No. 47-84 as amended, on June 5, 1984, which enacted Whitehall Codified Ordinances Section 505.13. Section 505.13 reads as follows:

"Maximum number of dogs permitted.

"(a) No person shall keep or harbor more than three dogs, excluding puppies less than four months old, in any single family dwelling, or in any separate suite in a two-family dwelling or apartment dwelling, within this City. The terms 'dwelling' and 'suite', as used in this section, include the parcel of land upon which the building containing the dwelling or suite is located, and also all out-buildings located on that parcel of land.

"(b) Whoever violates this section is guilty of a misdemeanor of the fourth degree. * * * "

Following the enactment of Section 505.13, the appellant failed to comply with the law, and citations for violation of its provisions were threatened by the appellees. Citations were finally issued on August 12 and 15, 1987. On August 27, 1987, appellant was hospitalized for emergency surgery. Alise Zageris was placed in the custody of the Whitehall police on September 4, 1987, to serve a previously imposed jail sentence stemming from the keeping of the same dogs. On September 6, 1987, while appellant was in the hospital and his mother in custody, the appellees went to appellant's property, entered and removed all nine dogs. The dogs were taken into the care of Whitehall and, later, transferred to the authorities of Franklin County, Ohio. In October 1987, appellant's motion reclaimed one of the dogs, but it was not until late December 1987, that all the dogs were reclaimed. Appellant's noncompliance continued and in January 1988, Zageris was arrested and prosecuted pursuant to Section 505.13 for keeping and/or harboring his mother's nine dogs.

In his first assignment of error, appellant contends that the trial court failed to follow the mandates of Civ.R. 56 when it granted summary judgment in favor of the appellees. Civ.R. 56(C) reads in pertinent part as follows:

" * * * Summary judgment shall be rendered forthwith if the pleading, depositions * * * [and] affidavits * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence * * * that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence * * * construed most strongly in his favor. * * * "

Before a court may grant a motion for summary judgment, a movant must satisfy the following test: (1) that there is no genuine issue of fact to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 273-274; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. In reviewing a motion for summary judgment, any inferences to be drawn from the underlying facts shall be viewed in the light most favorable to the opposing party. Fryberger v. Lake Cable Recreation Assn., Inc. (1988), 40 Ohio St.3d 349, 350, 533 N.E.2d 738, 739-740.

Appellant first contends that the affidavit of Joseph T. Zwayer, submitted in support of appellees' motion, failed to meet the test set forth in Olverson v. Butler (1975), 45 Ohio App.2d 9, 74 O.O.2d 11, 340 N.E.2d 436, and Evid.R. 701. It is argued that Zwayer's affidavit contains matters not within his personal knowledge. This argument lacks merit. The statements contained in the affidavit represent either actions taken by Zwayer himself or facts and circumstances of which a city attorney would have personal knowledge under the circumstances. The affidavit avers matters that would be admissible in evidence and about which the witness is competent to testify pursuant to Civ.R. 56(E). We also note that any error which may have existed when the affidavit was filed was rendered harmless by the filing of a number of depositions prior to the decision rendered by the trial court.

Appellant argues that the seizure of the dogs went beyond the authority granted the trial court by the statute. The penal authority of the ordinance provided for only a fine and/or incarceration, not abatement or outright seizure. Appellees justify the seizure of the dogs upon R.C. 1717.13, which reads in pertinent part:

"When, in order to protect any animal from neglect, it is necessary to take possession of it, any person may do so. When an animal is * * * confined, and continues without necessary food, water, or proper attention for more than fifteen successive hours, any person may, as often as is necessary, enter any place in which the animal is * * * confined and supply it with necessary food, water, and attention, so long as it remains there, or, if necessary, or convenient, he may remove such animal; and he shall not be liable to an action for such entry. * * * "

This statute expressly requires a showing of neglect prior to a lawful entry and seizure. As to whether this requirement was met, the evidence submitted to the court is at odds. Appellees offered Joseph Zwayer's affidavit in which he testified that the dogs were removed for humane reasons because no one was occupying the property to care for the dogs. There was also deposition testimony relating to the poor state of cleanliness and upkeep of the dogs at the time of the seizure on September 6, 1987. (See Saffle depo. at 70, 80; Bishop depo. at 5.) Appellant, by way of affidavit and deposition testimony, contends that his brother, Janis, had come into town on September 5, 1987 (from Chicago) to tend to the dogs; that on the same day he arrived, Janis purchased dog food and fed and watered the dogs. (See affidavit of Janis Zageris and Zageris depo. at 97-98, 103-104.) There is also evidence that appellant's mother had contacted family friends, the Neilands, to care for the dogs while she and the appellant were absent. (See affidavit of Zenta Neilands, and Zageris depo. at 98-99.) The testimony and affidavits, and all reasonable inferences drawn therefrom, when viewed most favorably to the nonmovant, create a genuine issue of fact, to wit: the condition of the dogs at the time of the seizure on September 6, 1987, and, thus, whether or not the seizure of the dogs was lawful. In sum, we find that the trial court erred and that summary judgment on appellant's claims was inappropriately granted, but only in regard to the seizure of the dogs pursuant to R.C. 1717.13.

Accordingly, appellant's first assignment of error is well taken and is sustained.

This leads us to appellant's second assignment of error in which he contends the trial court erred in determining that the ordinance in question, Whitehall Codified...