[Cite as State v. Maynard, 2015-Ohio-51.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-14-11

        v.

DEBRA C. MAYNARD,                                         OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Napoleon Municipal Court
                             Trial Court No. 14CRB0438

                                       Appeal Dismissed

                           Date of Decision: January 12, 2015




APPEARANCES:

        Alan J. Lehenbauer for Appellant

        David Busick for Appellee
Case No. 7-14-11


SHAW, J.

       {¶1} Defendant-appellant Debra C. Maynard (“Maynard”) appeals the July

8, 2014, judgment of the Napoleon Municipal Court designating Maynard’s

former dog as a “dangerous dog” pursuant to R.C. 955.11.

       {¶2} The facts relevant to this appeal are as follows. On May 12, 2014,

Maynard was cited for failure to properly confine the dog “Diesel” pursuant to

R.C. 955.22(C), a fourth degree misdemeanor. The citation was filed with the

Napoleon Municipal Court on June 16, 2014. On June 26, 2014, Maynard entered

her initial appearance and pled not guilty to the charge.

       {¶3} On July 8, 2014, the trial court held a pretrial hearing on the charge

against Maynard. At that time, both the State and Maynard indicated that as of

May 1, 2014, eleven days prior to the citation, Maynard had transferred ownership

of Diesel to a man named Shane Harmon. The State therefore indicated it wished

to dismiss the charge against Maynard and ultimately refile against the proper

party, Shane Harmon.       This request to dismiss the criminal charge against

Maynard was granted by the trial court.

       {¶4} However, at that same hearing, the State also made an oral request that

Diesel be designated as a “dangerous dog” pursuant to R.C. 955.11. Maynard,

acting pro se, opposed the State’s requested designation. The court heard brief

arguments of the parties, but no sworn testimony was taken. The State indicated


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that Diesel had been the subject of four previous incidents under R.C. 955.22

when Maynard was Diesel’s owner and therefore Diesel could properly be

classified as a “dangerous dog” under R.C. 955.11.

      {¶5} Ultimately the court determined that Diesel had been subject to three

or more violations of R.C. 955.22 and Diesel was therefore designated as a

“dangerous dog” under R.C. 955.11.

      {¶6} On July 8, 2014, the trial court filed a judgment entry dismissing the

criminal charge against Maynard. At the end of that entry, typed language stated,

“It is further Ordered:   State moved to classify Diesel as a dangerous dog

according to 955.11. Due to Diesel having been the subject of a [sic] three or

more violations of 955.22, the Court hereby finds that Diesel is a dangerous dog as

defined by the revised code.” (Doc. No. 5).

      {¶7} It is from this judgment that Maynard appeals, asserting the following

assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
      THE TRIAL COURT LACKED SUBJECT MATTER
      JURISDICTION   OVER   THE    PROCEEDING   AND
      PERSONAL JURISDICTION OVER THE APPELLANT.

                  ASSIGNMENT OF ERROR 2
      THE PROCEEDING BY THE TRIAL COURT VIOLATED
      APPELLANT’S CONSTITUTIONAL AND STATUTORY
      RIGHTS TO PROCEDURAL DUE PROCESS.




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                   ASSIGNMENT OF ERROR 3
       THE TRIAL COURT ERRED BY FAILING TO INFORM
       APPELLANT OF THE CHARGES AGAINST HER AND OF
       HER RIGHTS AS REQUIRED BY OHIO CRIMINAL RULE 5.

                   ASSIGNMENT OF ERROR 4
       THE TRIAL COURT ERRED BY FINDING THE DOG TO BE
       A “DANGEROUS DOG” PURSUANT TO R.C. 955.11.

       {¶8} Due to the nature of the disposition, we elect to address all of the

assignments of error together.

              First, Second, Third, and Fourth Assignments of Error

       {¶9} In Maynard’s assignments of error, she makes various arguments

challenging the trial court’s designation of her former dog, Diesel, a “dangerous

dog” pursuant to R.C. 955.11, including challenging the court’s jurisdiction to

make that designation.

       {¶10} At the outset we would note that the State of Ohio has failed to file a

brief in this case.   Appellate Rule 18(C) provides, inter alia, that when the

appellee fails to file a brief, in determining the appeal, this court may accept

appellant’s statement of the facts and issues as correct and reverse the judgment if

appellant’s brief reasonably appears to sustain such action. In this case there

appear to be a number of legitimate issues raised by Maynard that warrant

vacating a portion of the trial court’s judgment, which the State has elected not to

respond to at all. Because it appears Maynard may have owned the dog during the



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period of the predicate offenses necessary for the trial court’s designation of a

dangerous dog, we will address several of the issues below.

      {¶11} In this case Maynard was originally cited for a violation of R.C.

955.22(C), which reads, in pertinent part, “no owner, keeper, or harborer of any

dog shall fail at any time to do either of the following: * * * (1) Keep the dog

physically confined or restrained upon the premises of the owner, keeper, or

harborer by a leash, tether, adequate fence, supervision, or secure enclosure to

prevent escape; (2) Keep the dog under the reasonable control of some person.”

(Emphasis added).

      {¶12} Maynard pled not guilty to the charge and a pretrial hearing was

held, wherein both Maynard and the State agreed that Maynard was no longer the

owner of the dog and thus was not the proper party to be charged for a violation of

this section of the revised code. On the basis that Maynard was not currently the

proper party to be prosecuted, the State requested that the criminal charge against

Maynard be dismissed so that the State could refile against the proper party, Shane

Harmon.

      {¶13} Despite requesting that the criminal charge against Maynard be

dismissed, ending all pending matters with Maynard in their totality, the State

proceeded in the pretrial hearing by making an oral request that the trial court

declare Diesel a “dangerous dog.” Revised Code 955.11(A)(1)(a)(iii) governs


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designation of a dog as “dangerous,” and reads, “ ‘Dangerous dog’ means a dog

that, without provocation * * * has * * * [b]een the subject of a third or subsequent

violation of division (C) of section 955.22 of the Revised Code.”

        {¶14} Revised Code 955.222 has several provisions that need to be

complied with when designating a dog as dangerous under R.C. 955.11. They

read,

             (B) If a person who is authorized to enforce this chapter
        has reasonable cause to believe that a dog in the person’s
        jurisdiction is a nuisance dog, dangerous dog, or vicious dog, the
        person shall notify the owner, keeper, or harborer of that dog,
        by certified mail or in person, of both of the following:

            (1) That the person has designated the dog a nuisance dog,
        dangerous dog, or vicious dog, as applicable;

             (2) That the owner, keeper, or harborer of the dog may
        request a hearing regarding the designation in accordance with
        this section. The notice shall include instructions for filing a
        request for a hearing in the county in which the dog’s owner,
        keeper, or harborer resides.

             (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, 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.


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            The owner, keeper, or harborer of the dog or the person
       who designated the dog as a nuisance dog, dangerous dog, or
       vicious dog may appeal the court’s final determination as in any
       other case filed in that court.

       {¶15} The record before this Court gives no indication that R.C. 955.222

was complied with in any respect in designating Diesel as a dangerous dog. First,

there is no indication that the owner of Diesel, Shane Harmon, was notified in

person or via certified mail in such a manner that would allow him to challenge

Diesel’s designation under R.C. 955.222. In fact, there is no indication at the time

of this hearing that he was notified at all.

       {¶16} Second, if what transpired at the pretrial hearing was supposed to

constitute a hearing challenging Diesel’s designation under R.C. 955.222(C), clear

and convincing evidence was required to show that Diesel was a dangerous dog.

To “prove” that Diesel was a “dangerous dog” under R.C. 955.11 the State orally

argued that Diesel had been the subject of three or more previous violations of

R.C. 955.22(C).      No witnesses testified to this fact, and no evidence was

introduced into the record of the prior violations. In fact, no sworn testimony was

taken whatsoever, and no documents were introduced into evidence or even

referred to in the proceedings. Thus no evidence was presented to sustain the

“clear and convincing” burden of proof.

       {¶17} In sum, there seem to be multiple valid errors presented by Maynard

all of which render the “designation of dangerous dog” portion of the judgment

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entry and dismissal to be invalid.                Nevertheless, despite Maynard’s various

arguments challenging the trial court’s disposition, Maynard, by her own

admission, no longer owns the dog, and there is no indication from the record that

Maynard was currently a “keeper” or “harborer” of the dog that would allow her to

challenge Diesel’s classification in this appeal. The proper party to challenge

Diesel’s classification would seem to be Shane Harmon, the owner of the dog, or

anyone else that would qualify as a “harborer” or “keeper” of the dog under R.C.

955.222. Therefore, on the basis of the record before us, we find that Maynard

lacks standing to challenge Diesel’s classification as a “dangerous dog” as the

classification does not appear to have any bearing on her.1                        Accordingly, as

Maynard has demonstrated no stake in Diesel’s classification as a “dangerous

dog,” her appeal is dismissed for lack of standing.

                                                                                 Appeal Dismissed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




1
 See State ex rel. Gabriel v. Youngstown, 75 Ohio St.3d 618, 619 (1996) quoting Ohio Contract Carriers
Assn. v. Pub. Util. Comm., 140 Ohio St. 160 (1942), syllabus (“Appeal lies only on behalf of a party
aggrieved by the final order appealed from. Appeals are not allowed for the purpose of settling abstract
questions, but only to correct errors injuriously affecting the appellant.”) (Emphasis added.)

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