Wood Cty. Dog Warden v. Lathrop

[Cite as Wood Cty. Dog Warden v. Lathrop, 2022-Ohio-480.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY

Ashley Lathrop Court of Appeals No. WD-21-059

Appellee Trial Court No. CVH1901424

v.

Wood County Dog Warden DECISION AND JUDGMENT

Appellant Decided: February 18, 2022

*****

James A. Grandowicz, for appellee.

Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, and
Joyce C. Nowak, Assistant Prosecuting Attorney, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Following our July 23, 2021 reversal and remand, Lathrop v. Wood Cty. Dog

Warden, 6th Dist. Wood No. WD-20-059, 2021-Ohio-2556, this matter is before the
court on appeal of the August 12, 2021 judgment of the Perrysburg Municipal Court

which again denied appellant Wood County Dog Warden’s (“the warden”) objections to

the magistrate’s decision reversing the designation of appellee Ashley Lathrop’s dog as a

dangerous dog. Because we find that the judgment was against the weight of the

evidence, we reverse.

I. Facts and Procedural Background

{¶ 2} The relevant facts mirror those set forth in our July 23, 2021 decision and

judgment. On October 20, 2018, Paulette Eckermann was gardening in the back of her

mother-in-law’s property when Zeus, a German Shepherd Dog owned by abutting

landowner, Ashley Lathrop, crossed the near dry creek bed dividing the properties,

approached within three feet of her, and began barking and snarling. Eventually the dog

left the property.

{¶ 3} After discussing the encounter with her husband and elderly mother-in-law

(neither of whom had witnessed the incident), she and her husband, Thomas, decided to

go to the Lathrops’ house to inform them that their dog had been on the Eckermann’s

property and had frightened Paulette.

{¶ 4} Upon arrival, Zeus was in the driveway and immediately began barking at

their pick-up truck. Mr. Eckermann did not exit the vehicle until the dog retreated. After

exiting the vehicle and the approach of Mr. Lathrop and Zeus, Zeus lunged and snapped

at Eckermann multiple times eventually biting him in the right leg. After the bite, he

2.
stood in the driveway and continued to speak with Mr. Lathrop. Later, Eckermann

sought medical treatment for the minor puncture wound.

{¶ 5} On October 5, 2019,1 Lathrop was served with a notice that her dog had been

designated a “dangerous dog” under R.C. 955.11(A)(1)(a). The designation required

Lathrop to, inter alia, secure the dog on the premises and obtain liability insurance. The

notice provided that the owner could contest the designation within ten days of receipt of

the notice.

{¶ 6} On October 11, 2019, Lathrop filed a letter with the Perrysburg Municipal

Court contesting the designation and requesting a hearing on the matter. On January 27,

2020, Lathrop filed a motion in limine requesting that the court prevent the warden from

introducing evidence of a 2008 failure to confine minor misdemeanor and any claims,

other than the date of the bite incident, that Zeus was running loose off the Lathrops’

property. The warden also filed a motion in limine requesting that the court exclude the

testimony of disclosed plaintiff’s witness, Lake Township officer Kelly Clark,

questioning her credentials as an expert on provocation and whether such testimony

would be considered relevant. The warden requested a hearing on the issue.

{¶ 7} The hearing was held on February 13, 2020. Prior to the start of the

testimony the parties presented arguments regarding the warden’s motion in limine; the

1
During the proceedings, evidence was presented that the delay between the incident and
the warden’s designation was due, in part, to the inability to secure the Eckermann’s
statements.

3.
court ultimately excluded the testimony of Officer Clark. Paulette and Thomas

Eckermann, the warden, and a deputy dog warden testified. Notably, the Lathrops’

surveillance camera captured the bite incident and the video was viewed, testified to, and

admitted into evidence.

{¶ 8} On February 19, 2020, the magistrate issued his decision vacating the

warden’s dangerous dog designation as to Zeus. The magistrate concluded that the

warden “failed to meet its burden to demonstrate by clear and convincing evidence that

the dog caused injury without provocation.” The court noted that “the argument that the

dog bit Mr. Eckermann because it was teased has some degree of persuasiveness.”

Approximately three hours later the trial court issued its judgment entry stating in full:

This matter is before the court on the Magistrate’s Decision issued

February 19, 2020. Upon review of the case and decision, the Court adopts

the magistrate’s recommendation and decision as the judgment of this

court, and vacates the Wood County Dog Warden’s determination that

petitioner’s dog is a “dangerous dog” pursuant to R.C. 955.11(A)(1)(a), et.

seq.

{¶ 9} On March 4, 2020, the warden filed its objections to the magistrate’s

decision and a hearing was held on July 8, 2020. The warden argued that the magistrate

adopted and applied an incorrect definition of provocation as it relates to the dangerous

4.
dog statute and that, regardless, the evidence presented during the hearing clearly

demonstrated that Mr. Eckermann did not provoke the subject dog.

{¶ 10} Denying the warden’s objections, the court concluded that the magistrate

properly limited the evidence, interpreted the evidence, and that the definition of

provocation employed by the magistrate did not negatively impact the decision as

asserted. The court agreed that the magistrate improperly took judicial notice of the

character and nature of dogs but concluded that that the error did not impact the

judgment. Specifically, as to provocation, the court noted that the warden’s objection to

the magistrate’s interpretation of the security video and differing views on whether it

demonstrated that Eckermann teased or worried the dog by making a fist, was not

sufficient to say that the magistrate lost its way or improperly determined a factual issue.

{¶ 11} The warden commenced an appeal with this court arguing, inter alia, that

when ruling on its objections, the trial court used a deferential, rather than a de novo,

standard of review. We agreed and remanded the matter. Lathrop, 6th Dist. Wood No.

WD-20-059, 2021-Ohio-2556.

{¶ 12} On remand the court again rejected the warden’s objections. Relevantly, as

to the interplay between Zeus and Eckermann, the court noted:

It appears to be the position that the video shows that Mr.

Eckermann did not provoke the subject dog. This Court, having reviewed

the testimony and the video is not prepared to accept that position. The

5.
 Dog Warden has not met their burden to show that the actions of Mr.

Eckermann did not provoke the subject dog.

{¶ 13} This appeal followed.

II. Assignments of Error

Assignment of Error I: On remand, the trial court erred and created

reversible error when it applied the wrong standard of review to its review

of the magistrate’s decision.

Assignment of Error II: Both the magistrate and trial court erred and

created reversible error when they improperly excluded testimony under

Evid.R. 404(B).

Assignment of Error III: Both the magistrate and the trial court erred

and created reversible error when they improperly excluded testimony

under Evid.R. 702.

Assignment of Error IV: Both the magistrate and the trial court erred

and created reversible error when they found that the Wood County Dog

Warden did not satisfy its burden at the dangerous dog designation hearing

by sufficient evidence.

Assignment of Error V: Both the magistrate and the trial court erred

and committed reversible error because their decisions went against the

manifest weight of the evidence.

6.
 Assignment of Error VI: Cumulative error by both the magistrate

and the trial court require reversal of the judgments in this case.

III. Discussion

{¶ 14} The warden’s fourth and fifth assignments of error, challenging the

sufficiency and weight of the evidence, are dispositive and related and will be jointly

addressed. Relevant here, R.C. 955.11(A)(1) defines a “dangerous dog” as follows:

(a) “Dangerous dog” means a dog that, without provocation, and

subject to division (A)(1)(b) of this section, has done any of the following:

(i) Caused injury, other than killing or serious injury, to any person;

(ii) Killed another dog;

(iii) Been the subject of a third or subsequent violation of division

(C) of section 955.22 of the Revised Code.

{¶ 15} Appeal of a dangerous dog designation is provided in R.C. 955.222(C):

If the owner, keeper, or harborer of the dog disagrees with the

designation of the dog as a nuisance dog, dangerous dog, or vicious dog, as

applicable, the owner, keeper, or harborer, not later than ten days after

receiving notification of the designation, may request a hearing regarding

the determination. The request for a hearing shall be in writing and shall be

filed with the municipal court or county court that has territorial jurisdiction

over the residence of the dog’s owner, keeper, or harborer. At the hearing,

7.
 the person who designated the dog as a nuisance dog, dangerous dog, or

vicious dog has the burden of proving, by clear and convincing evidence,

that the dog is a nuisance dog, dangerous dog, or vicious dog.

{¶ 16} As quoted above, in order to designate a dog as “dangerous” the warden

must prove by clear and convincing evidence its dangerousness. “Clear and convincing

evidence” is defined as that degree of proof which establishes in the mind of the trier of

fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford, 161

Ohio St. 469, 120 N.E.2d 118 (1954). This standard “‘is intermediate, being more than a

mere preponderance, but not to the extent of such certainty as required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.’” Henry

Cty. Dog Warden v. Henry Cty. Humane Soc., 2016-Ohio-7541, 64 N.E.3d 1076, ¶ 15 (3d

Dist.), quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).

{¶ 17} Because the statute essentially calls for a de novo hearing by a municipal

court or county court upon a dog owner’s request, we find an appellate court’s standard

of review on a manifest weight challenge in the present context is the same as in a civil

case. Spangler v. Stark Cty. Dog Warden, 2013-Ohio-4774, 999 N.E.2d 1247, ¶ 18 (5th

Dist.). Thus, in determining whether a judgment is supported by the weight of the

evidence a reviewing court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the trier of fact clearly lost

its way in resolving evidentiary conflicts so as to create such a manifest miscarriage of

8.
justice that the judgment must be reversed and a new trial ordered. State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 18} In civil cases, as in criminal cases, the sufficiency of the evidence is

quantitatively and qualitatively different from the weight of the evidence. Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, paragraph two of the

syllabus. “Sufficiency” is “‘a term of art meaning that legal standard which is applied to

determine whether * * * the evidence is legally sufficient to support the [judgment] as a

matter of law.’” Id. at ¶ 11, quoting Thompkins at 386.

{¶ 19} “‘Our standard of reviewing the sufficiency of the evidence in a civil case

is whether, after viewing the evidence in a light most favorable to the prevailing party,

the judgment is supported by competent and credible evidence.’” Henry Cty. Dog

Warden, 2016-Ohio-7541, 64 N.E.3d 1076, at ¶ 13, quoting Edwards v. Knox Cty. Dog

Warden, 5th Dist. Knox Nos. 14CA15, 14CA17, 2015-Ohio-1320, ¶ 9.

{¶ 20} The parties agree that Mr. Eckermann was injured by Zeus; the disputed

element under the statute is whether Zeus’ attack on Eckermann was provoked.

Reviewing the statutory definition of provocation, this court has observed:

The terms “teasing,” “tormenting,” and “abusing” are defined for

purposes of R.C. 955.28(B), Ohio’s dog-bite statute, and are set forth in 1

Ohio Jury Instructions 409.03, Section 5. “Teasing” means “to annoy or to

trouble or worry persistently, to be troublesome or to pester.”

9.
 “Tormenting” is “conduct which provokes a greater annoyance and implies

some torture or pain.” And “[a]busing” is “mistreatment which includes

some physical injury or pain to the animal.” These definitions were first

recognized in Ramsey v. King, 14 Ohio App.3d 138, 470 N.E.2d 241 (12th

Dist.1984), and have since been applied by other Ohio courts. See Quellos

v. Quellos, 96 Ohio App.3d 31, 40, 643 N.E.2d 1173 (8th Dist.1994);

Olmstead v. Forsthoefel, 3d Dist. Mercer No. 10-12-08, 2013-Ohio-220,

2013 WL 312369, ¶ 15.

Ali v. Lucas Cty. Dog Warden, 2017-Ohio-2809, 91 N.E.3d 68, ¶ 12 (6th Dist.).

{¶ 21} At the appeal hearing before the magistrate, Thomas Eckermann testified

that after parking in the Lathrops’ driveway he waited to exit the vehicle because Zeus

was out front and barking and “not looking real friendly.” Once Mr. Lathrop came out to

the driveway, he exited the vehicle and began to walk around the front of the truck to

speak with him. Eckermann stated his belief that Mr. Lathrop would be able to control

Zeus.

{¶ 22} Eckermann then explained that when he walked toward Mr. Lathrop to

speak with him, Zeus was barking and snarling. The dog then lunged toward him and he

pulled his hands up in order to avoid being bitten. Eckermann stated that Zeus came at

him a second time; he again pulled his hands up to avoid being bitten. Eckermann

admitted that during Zeus’ third bite attempt he pulled his hand back into a fist but denied

10.
either teasing or tormenting the dog or threating the dog or Mr. Lathrop. Following the

third attempt, Zeus landed a bite to his right leg. Eckermann stated that the dog was

aggressive for the duration of the encounter and that he had been forced up against the

front of his truck and could not get any further away.

{¶ 23} This court has carefully reviewed the video and the relevant testimony

presented at trial and can only conclude that the court lost its way in finding that the

warden did not provide clear and convincing evidence that the bite was unprovoked. The

video begins with Zeus barking at Eckermann’s vehicle, which is parked in his owner’s

driveway. After approximately 30 seconds of continuous barking, Zeus retreats into the

garage and Eckermann exits his vehicle. Zeus’ owner then appears, walking out of the

garage with Zeus. The dog begins barking again and quickly runs toward Eckermann.

At this point, Eckermann is standing in front of his vehicle, with both arms down at his

side. Zeus runs up to Eckermann, while barking, and attempts to bite his left hand.

Eckermann pulls his left hand up and away from Zeus to avoid being bitten. Zeus jumps

backwards, continues barking, and then lunges toward him again. Eckermann does not

move but raises his right hand in a fist—once—to deter Zeus from coming near him.

Zeus retreats and continues barking while circling the immediate area for approximately

five seconds. He then approaches Mr. Eckermann again and lunges toward him. At that

point Eckermann raises both arms, with open palms, in an attempt to avoid Zeus. The

dog’s owner then steps in between Mr. Eckermann and the dog. Zeus stops barking for a

11.
few seconds and walks behind his owner, who has begun talking with Mr. Eckermann.

As soon as Zeus comes around his owner’s left side, he barks once and bites Mr.

Eckermann on his right leg—while Mr. Eckermann’s hands were down at his side and his

attention was focused on the conversation with Zeus’ owner.

{¶ 24} The video clearly demonstrates that Zeus was already in a provoked state

when Eckermann arrived, and the dog attempted to bite Eckermann prior to either him

raising his arms or forming a fist with his hand. The dog then persisted, going around the

back of its owner and biting Eckermann’s right leg. Thus, the court’s finding that the

parties’ assertions were merely a “difference of opinion” is flawed; this court is of the

mindset that the evidence presented is not susceptible of more than one interpretation.

There is no evidence that Eckermann “abused” or “tormented” the dog, nor is there any

evidence in the video (or anywhere else in the record) to suggest that Eckermann engaged

in any persistent conduct that could be considered “teasing.” Eckermann raised his fist

only once, and it is clear from the video that Eckermann’s other body movements were

nothing more than attempts to get out of the dog’s way and avoid being bitten.

{¶ 25} Accordingly we find that there was insufficient evidence demonstrating

that Zeus’ bite was provoked and that the court’s reversal of the dangerous dog

designation was against the manifest weight of the evidence. Thus, the trial court abused

its discretion in denying the warden’s objection relative to the magistrate’s determination

12.
that it was possible that the bite was provoked. The warden’s third and fourth

assignments of error are well-taken.

{¶ 26} Based on our determination that the court erred in reversing the dangerous

dog designation we find that the warden’s first, second, third, and sixth assignments of

error are moot and not well-taken.

IV. Conclusion

{¶ 27} The August 12, 2021 judgment of the Perrysburg Municipal Court is

reversed. We reinstate the warden’s dangerous dog designation of appellee’s dog, Zeus,

and remand the matter for any further proceedings necessitated by this judgment.

Pursuant to App.R. 24, appellee is ordered to pay the costs of this appeal.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

13.
 Ashley Lathrop
v. Wood County Dog Warden
Case No. WD-21-059

Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

14.