Replevin

The writ of replevin is a valuable tool to regain possession of a dog from animal control.

Broward Ordinance and Replevin

The Broward County Ordinance and Replevin

pawhand

Judge Requests Rehearing of Replevin Motion in Brandie's Case

It is my understanding that the Judge in Brandie's case has requested to Rehear the Lipsky Motion for Replevin.  I think the judge needed time to understand the notion and procedure of a Writ of Replevin, and now wants to hear how this Writ applies to Brandie and the Broward County Ordinance.

In order to understand why Brandie is entitled to be home pending appeal, let's take a look first at the State statute and the Broward County Ordinance.  They have to be read together in order to reach a proper legal conclusion.

Florida State Statute

The first crinkle is the fact that the state statute has two different procedures: one to declare a dog dangerous (F.S. § 767.12) and the other to order the destruction of a dog (F.S. § 767.13). The problem is, that these two procedures require different definitions of the dog's act. To declare a dog dangerous under 767.12 the dog either has to have more than once killed a domestic animal, scared someone or aggressively bitten or inflicted severe injury on a human being.  To order destruction of a dog under F.S § 767.13, the dog has to either been previously declared dangerous and attacked or bitten a person or domestic animal or if not previously declared dangerous causing severe injury or death to a human. Confused yet?

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Replevin Case Law

Replevin Case Law

Case law varies from state to state on the Replevin issue. However, there is so little of it that relates to Dangerous Dog litigation, that it is imperative to know what's out there and helpful to your cause.  Below are cases I have found helpful in Dangerous Dog cases.

Replevin is Proper Cause of Action Against Government Taking

Sammeth v. City of Seattle, (Case No. 07-32889) - Unreported - In this §1983 case, a Writ of Replevin was filed and sucessful in getting the dog back pending appeal.  This is clear in the Amended Complaint that can be seen here.

Thomas v. City of Minneapolis, 2007 WL 1121465 (Minn. App. 2007) - This case involves a dog that got lost and was picked up by Animal Control and then given to Underdog Rescue.  It was then transferred to a third party. The owner sued Animal Control and the Rescue entity in Replevin and for monetary damages. After Thomas found out who had adopted the dog, she named them as defendant.  At summary judgement, the court granted Thomas' Replevin Motion. The rest of the opinion is really irrelevant, as it discusses improper granting of sanctions. 

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Replevin Procedure

Replevin Procedure

pawhand

Replevin is a statutorily defined action and is contained in F.S. § 78.  There is even a form Replevin Writ contained in the Florida Rules of Civil Procedure. 

In drafting your complaint, a very important allegation is the value of the dog. Such an allegation must be made in good faith. The reason it is important, is that it is this allegation that triggers the bond the Defendant must file if it intends to keep the dog despite the judge ruling that you have the right to do so.  Unfortunately, most dogs do not have a high fair market value unless they are show dogs or service dogs. Thus, you either have to allege a very low fair market value in good faith, or argue that the dog has a special intrinsic value.  It is my belief that intrinsic value is the better allegation.  I have made this argument in veterinary malpractice cases.  A memorandum of law on the issue can be found here.

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Replevin Value Allegation

Replevin Value Allegation

pawhand

The value allegation in the Replevin complaint is important.  It is from this allegation the court decides what bond the government will have to post if they decide they want to keep the dog.  Unfortunately, in Florida, dogs are property, and as a result, the government will argue that the value of the dog is simply the fair market value.  Unless a dog is a show dog or service dog, it is difficult to ethically allege any substantial value to the dog.

Instead, argue intrinsic value.  Have the owner calculate how much they have spent on the dog, for food, shelter and medical care. Add in the legal expenses that have been spent and the client is going to spend to save the dog.  Prepare an affidavit attesting to the value of the dog and have it ready for the hearing if you need it. If the government does not show an interest in keeping the dog, you won't need it. The judge may or may not agree with this theory, but it is the best you can do.

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Replevin—Get the dog back

Replevin—the first thing to do is get the dog back

As they say in sports, the best defense is a good offense.  Filing a Writ of Replevin when the dog is first impounded is one of the best ways to defend a dangerous dog case.

You need to get possession of the dog.  Who has the dog influences everything about the case.  Most people, after losing possession of their companion will do most anything to get it back, including just accepting the Dangerous Dog Classification and all that goes with it. And of course when that happens, you've waived any right to appeal the designation.  In Marion County, Florida, you can't even visit your dog during inpoundment, which makes it even more likely that the Classification will simply be accepted.  This happens about 90% of the time in my practice, and I can't blame the owners.  Having a loved one in solitary confinement without visitation is impossible to take.  And Animal Control knows this. 

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Dangerous Dog Law

Helping to defend our best friends. Dangerous Dog Law (DDL) focuses on the legal defense of allegedly dangerous dogs. DDL is a member of the Pit Bulletin Legal News Network.

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