[Cite as Coontz v. Hoffman, 2014-Ohio-274.]


                             IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


Ashley S. Coontz,                               :

                Plaintiff-Appellant,            :

v.                                              :                 No. 13AP-367
                                                          (C.P.C. No. 11CVC-09-11681)
Laura Hoffman et al.,                           :
                                                         (REGULAR CALENDAR)
                Defendants-Appellees.           :




                                        D E C I S I O N

                                   Rendered on January 28, 2014


                Robert W. Kerpsack Co., L.P.A., and Robert W. Kerpsack, for
                appellant.

                Williams & Petro Co., L.L.C, Josh L. Schoenberger and
                Susan S. R. Petro, for appellee Karlee Properties, LLC.

                  APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Plaintiff-appellant, Ashley S. Coontz ("appellant"), appeals from an April 23,
2013 judgment of the Franklin County Court of Common Pleas granting defendant-
appellee, Karlee Properties, LLC's ("appellee") motion for summary judgment, and an
April 29, 2013 judgment of the Franklin County Court of Common Pleas denying
appellant's motion for reconsideration. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellee is the owner/lessor of a residential duplex located at 236
Barthman Avenue in Columbus, Ohio. On December 1, 2010, Jessica Knight and Michelle
No. 13AP-367                                                                                            2


Gilgien entered into a written lease agreement with appellant with respect to one of the
two units in the duplex. Donna Hansel leased the other unit in the duplex.
        {¶ 3} Appellant, Gilgien's half-sister, moved in with Knight and Gilgien on or
about March 1, 2011. When appellant moved in, three dogs lived at the residence,
Marious, Buckeye and Candy. Laura Hoffman, a defendant in this action, owns all three
dogs. According to appellant, the events that gave rise to this action are as follows:
                2. On April 17, 2011, I was attacked and bitten by three dogs, a
                Bullmastiff/Rottweiler/Chow mix named "Marious" and a
                large mixed breed dog named "Buckeye," each of which were
                owned by Defendant Jessica Knight, and a Pittbull named
                "Candy," which was owned by Defendant Laura Hoffman. The
                attack occurred while my half-sister, Michelle Gilgien, and I
                were arguing in the living room of leased residential premises
                located at 236 Barthman Avenue, in Columbus, Ohio, where
                my mother and I had been living temporarily for the previous
                six (6) weeks or so. Michelle was angry with me for notifying
                Franklin County Department of Animal Care and Control
                earlier in the day that the dogs in question were dangerous
                and vicious. The argument was not, however, directed toward
                any of the dogs in question, nor did anyone tease, torment or
                provoke the dogs.

(Appellant's affidavit, ¶ 2.)
        {¶ 4} On September 19, 2011, appellant filed a complaint in the Franklin County
Court of Common Pleas against Hoffman, Knight and appellee, seeking damages. Ohio
Department of Job and Family Services ("ODJFS") joined the action, as a statutory
subrogee of appellant, in order to recover sums expended for appellant's medical
treatment. Thereafter, appellee filed a third-party complaint against Gilgien.1
        {¶ 5} Appellee filed a motion for summary judgment on February 21, 2013. On
April 3, 2013, the trial court granted summary judgment in favor of appellee as to the
claims of both appellant and ODJFS. Appellant filed a motion for reconsideration on
April 9, 2013. The trial court denied appellant's motion on April 23, 2013.2



1 On November 28, 2012, the trial court entered judgment by default against Gilgien as to the third-party

complaint. The judgment is not the subject of this appeal.
2 On April 23, 2013, the trial court also entered judgment against Knight and Hoffman. No appeal was taken

from such judgment.
No. 13AP-367                                                                            3


II. ASSIGNMENT OF ERROR
       {¶ 6} On May 1, 2013, appellant filed a notice of appeal to this court from the
judgment entries issued by the trial court. Appellant assigns the following error:
              THE TRIAL COURT ERRED TO THE SUBSTANTIAL
              PREJUDICE OF APPELLANT ASHLEY S. COONTZ IN
              ORDERING SUMMARY JUDGMENT IN FAVOR OF
              APPELLEE KARLEE PROPERTIES, LLC ON THE ISSUE OF
              LIABILITY.

III. STANDARD OF REVIEW
       {¶ 7} Appellate review of summary judgment motion is de novo. Helton v.
Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing
a trial court's ruling on summary judgment, the court of appeals conducts an
independent review of the record and stands in the shoes of the trial court." Mergenthal
v. Star Bank Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial
court's judgment if any of the grounds raised by the movant at the trial court are found
to support it, even if the trial court failed to consider those grounds. Coventry Twp. v.
Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
       {¶ 8} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 9} When seeking summary judgment on the ground that the non-moving
party cannot prove its case, the moving party bears the initial burden of informing the
trial court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of
the nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A
moving party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
No. 13AP-367                                                                               4


allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets this initial burden, then the non-moving party has a
reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is
a genuine issue for trial and, if the non-moving party does not so respond, summary
judgment, if appropriate, shall be entered against the non-moving party. Id.
III. LEGAL ANALYSIS
       {¶ 10} A plaintiff who suffers injury as a result of a dog bite may, in the same case,
pursue both a strict liability claim under R.C. 955.28, and common a law negligence
claim. Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, ¶ 22. In a common law dog
bite action, the plaintiff must prove: (1) the defendant owned or harbored the dog; (2) the
dog was vicious; (3) the defendant knew of the dog's viciousness, and (4) the dog was kept
in a negligent manner after the keeper knew of its viciousness. In an action for damages
under R.C. 955.28, the plaintiff must prove: (1) ownership or keepership of the dog;
(2) that the dog's actions were the proximate cause of the injury; and (3) the damages. Id.
       {¶ 11} Although appellant's complaint alleges claims for relief against appellee
under both statutory and common law, appellant has abandoned its statutory claim.
Thus, the threshold question in this case is whether the evidence presented by appellant
permits the inference, under the common law, that appellee "harbored" the dogs that
attacked her. The trial court held that there was no such evidence. We agree.
       {¶ 12} A dog owner "is the person to whom a dog belongs, while a keeper has
physical control over the dog." Samas v. Holliman, 10th Dist. No. 02AP-947, 2003-Ohio-
1647, ¶ 14, citing Burgess v. Tackas, 125 Ohio App.3d 294, 297 (8th Dist.1998), and Flint
v. Holbrook, 80 Ohio App.3d 21, 25 (2d Dist.1992). A harborer, on the other hand, "is one
who has possession and control of the premises where the dog lives, and silently
acquiesces to the dog's presence." (Emphasis sic.) Id. In order to withstand appellee's
motion for summary judgment as to her common law claim, appellant must produce
evidence that appellee harbored the dogs with knowledge of their vicious tendencies.
Samas, citing Burgess.
       {¶ 13} The "PETS" clause in the lease prohibits Knight and Gilgien from keeping
pets on the leased premises without the prior written consent of appellee, and the
payment of a non-refundable security deposit of $50. (R. 5-6.) Even though Gilgien and
No. 13AP-367                                                                                5


Knight have acknowledged that they brought the dogs with them when they moved into
the apartment, the portion of the lease agreement where the parties are to specify the type
and number of pets appellee permitted them to keep on the leased premises is left blank.
A lease provision entitled "RIGHT OF ACCESS" states: "Management shall have the right
of access to residence for inspection and repair or maintenance during reasonable hours.
In case of emergency, Management may enter at any time to protect life and prevent
damage to the property."
       {¶ 14} It is well-settled law that a lease agreement transfers both occupation and
control of the subject premises to the tenant. Samas at ¶ 14, citing Burgess at 297-98;
Flint at 25. In the context of a landlord's liability for injuries on the leased premises,
"[t]he hallmark of control is the ability to [admit] or to exclude others from the property."
Kovacks v. Lewis, 5th Dist. No. 2010 AP 01 0001, 2010-Ohio-3230, ¶ 27, citing Flint.
       {¶ 15} An overwhelming majority of courts of appeals in this state, including this
district, have held that a landlord out of possession is not the harborer of a tenant's dog
for purposes of dog bite liability. See, e.g., Diaz v. Henderson, 12th Dist. No. CA2011-09-
182, 2012-Ohio-1898 (where tenant had sole control and possession of the property where
her dog lived, and dog was kept in areas on the property that were neither common areas
nor shared by the landlord, landlord did not harbor the dog that attacked plaintiff);
Kovacks (landlords who had keys to leased premises where child was bitten by tenant's
dog, but never let themselves in without first letting tenants know, did not have
possession or control over the property and could not be held liable to plaintiff as a
harborer of tenant's dog); Young v. Robson Foods, Inc., 9th Dist. No. 08CA009499,
2009-Ohio-2781 (landlord who made monthly visits to inspect rental property but did not
enter residence, was not a harborer of tenant's dog for purposes of liability for an attack
upon plaintiff that occurred inside the home); Jones v. Goodwin, 1st Dist. No. C-050468,
2006-Ohio-1377 (where pitbull was not kept in shared area or in area over which
landlords had possession and control, landlords were not harboring pitbull owned by
tenant, and were not liable to victim for plaintiff's injuries); Burrell v. Iwenofu, 8th Dist.
No. 81230, 2003-Ohio-1158 (landlord did not retain possession and control of backyard
common area in which tenant was bitten by dog and could not be considered a harborer of
the dog); Hilty v. Topaz, 10th Dist. No. 04AP-13, 2004-Ohio-4859 (even if the property
No. 13AP-367                                                                                               6


owner knew that tenants kept the dog that attacked plaintiff at the leased premises, the
property owner is not a harborer of the tenant's dogs absent evidence that the owner had
possession and control of the property); Samas (landlords could not be held liable to
plaintiff as a harborer of the dog inasmuch as they had no control over the premises, there
was no evidence that the dogs were vicious, and the tenant had told the landlords that the
dogs would be leaving the premises soon); Burgess (landlord's knowledge about the
existence of the dog does not make landlord a harborer for purposes of dog bite liability
where the landlord did not acquiesce in tenant's decision to keep the dog in common
areas or in an area shared by both the landlord and the tenant).
        {¶ 16} In this case, the undisputed evidence establishes that Hoffman owned the
dogs that attacked appellant; that Knight and Gilgien kept the dogs on the leased
premises; and that the attack occurred inside the residence, not in a common area or in an
area shared by the landlord and the tenant. Appellant argues, however, that under the
rule of law set forth in Hill v. Hughes, 4th Dist. No. 06CA2917, 2007-Ohio-3885, an issue
of fact exists whether appellee harbored the dogs. We disagree.
        {¶ 17} In Hill, the tenant's dog attacked and injured plaintiff while plaintiff was
playing with friends at the leased premises. The landlord in Hill was both the father and
the employer of the tenant/dog owner, and he lived two doors down from his son. There
was no written lease agreement. In the landlord's deposition, he testified that he had the
right to tell his son whether he could keep a dog on the premises and to insist that his son
immediately get rid of a dog that became threatening. Id. at 19. Based upon this
testimony, a majority of the court held that an issue of fact existed whether the father was
a harborer of the dog. Id. at 20.
        {¶ 18} To the extent that Hill subjects a landlord to liability for an attack by the
tenants' dog that occurred upon premises within the exclusive possession of the tenant,
the Hill case conflicts with the established precedent in Ohio, including the law of this
district. See Samas; Hilty.3 Moreover, the Hill case is clearly distinguishable upon the
facts. Unlike the family/employment relationship that existed between the landlord and


3 In the dissenting opinion in Hill, Judge Kline stated "in my view, there is no evidence that [the landlord]
maintained possession of the leased property. As such, [the landlord] cannot be held liable as a harborer
* * * under common law, and therefore, summary judgment in his favor is proper."
No. 13AP-367                                                                                  7


tenant in Hill, appellee's legal relationship with Knight and Gilgien is purely that of
landlord and tenant. There are no facts or circumstances in this case that would permit
an inference that appellee had greater possession or control over the leased premises than
that allowed under the lease agreement. Accordingly, Hill does not compel us to reverse
the trial court's decision given the specific facts of this case.
          {¶ 19} Appellant argues, in the alternative, that under a certain provision in the
lease agreement, appellee retained sufficient possession and control of the leased
premises to support a finding that appellee harbored the dogs.4 Specifically, appellant
points to a portion of the "RIGHT OF ACCESS" clause which permits appellee to enter the
leased premises at any time "to protect life." Appellant maintains that this language in the
lease imposed a duty upon appellee to immediately enter and remove vicious dogs upon
learning that Knight and Gilgien were keeping them on the premises. We disagree.
          {¶ 20} "Leases are contracts subject to the traditional rules of contract
interpretation." DDR Rio Hondo, L.L.C. v. Sunglass Hut Trading, L.L.C., 8th Dist. No.
98986, 2013-Ohio-1800, ¶ 13, citing Mark-It Place Foods v. New Plan Excel Realty Trust,
Inc., 156 Ohio App.3d 65, 2004-Ohio-411, ¶ 29 (4th Dist.).                The interpretation and
construction of a written contract is a question of law and, therefore, appellate courts will
review de novo the trial court's interpretation of a contract. Id., citing Continental W.
Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc., 74 Ohio St.3d 501 (1996).
The purpose of contract construction is to discover and effectuate the intent of the parties.
Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, ¶ 9. If the terms of the
contract are determined to be clear and unambiguous, the court need not go beyond the
plain language of the agreement to determine the parties' rights and obligations. Davis v.
Loopco Industries, Inc., 66 Ohio St.3d 64 (1993).
          {¶ 21} Upon review of the plain language of the "RIGHT OF ACCESS" clause, we
conclude that the parties intended appellee to have immediate access to the leased
premises only in cases of serious or life threatening maintenance or repair emergencies.
Accordingly, even if we were to accept appellant's allegations that appellee knew Knight
and Gilgien kept vicious dogs on the leased premises, the emergency clause did not give


4   Appellant advanced this argument in her motion for reconsideration.
No. 13AP-367                                                                                  8


appellee the right to immediately enter upon the property and remove the dogs. In short,
appellant ascribes a meaning to the emergency clause that is irreconcilable with any
reasonable construction language used by the parties.
           {¶ 22} Moreover, the "PETS" clause in the lease agreement, which speaks directly
to this issue, permits appellee to dispose of unregistered or "nuisance" pets only
"according to law." Appellant admits that she told an animal control officer that the dogs
were vicious and that they attacked her own dog. (Coontz Deposition, 88-89.) Under
Ohio law, appellee could not have done more than that. Indeed, in Samas, we held that
the landlord owed no duty to the plaintiff to commence an eviction action against the
owner of the dog that injured her even though the landlord had prior knowledge that the
tenant was keeping a vicious dog on the premises, in violation of the lease agreement. Id.
at ¶ 15.
           {¶ 23} In short, the evidence submitted by appellee, including the written lease
agreement, establishes the following: appellee transferred both possession and control of
the leased premises to Knight and Gilgien; that Knight and Gilgien did not inform
appellee that they intended to keep dogs on the leased premises; that the attack on
appellant occurred on leased premises under the exclusive possession and control of
Knight and Gilgien; that appellee had no right to admit or exclude anyone from the leased
premises; that appellee had no right to remove the dogs from the leased premises; and
that appellee had no duty to evict Gilgien and Knight. Appellant failed to produce any
evidence, in opposition to appellee's motion for summary judgment, that would permit an
inference that appellee retained possession and control of the premises where the dogs
lived. Id. Accordingly, appellant failed to produce evidence that appellee "harbored" the
dogs that attacked her.
           {¶ 24} Appellant argues, however, that Maggard v. Pemberton, 2d Dist. No.
22595, 2008-Ohio-4735 stands for the proposition that a landlord out of possession may
be held liable for injuries caused by a vicious dog owned and/or kept by the tenant where
the evidence shows that the landlord has "knowledge of the dangerous or vicious animal
but fails to abate the hazard with sufficient time to do so." Id. at ¶ 9, citing Flint at 26. To
the extent that Maggard subjects a landlord to liability for an attack by a tenant's dog that
occurs on premises under the exclusive possession and control of the tenant, Maggard is
No. 13AP-367                                                                                            9


clearly at odds with the established Ohio precedent discussed herein. Indeed, under Ohio
law, a landlord's knowledge that the tenant is keeping a dog on the leased premises,
standing alone, does not support a finding that the landlord harbored the dog absent
evidence that the landlord has retained possession and control of the leased premises.
Samas; Hilty; see also Lopiccolo v. Vidal, 8th Dist. No. 97150, 2012-Ohio-4048.
Moreover, in Maggard, the evidence showed that the landlord and tenant were personal
friends, and that he lived across the street from the tenant. The evidence also showed that
the landlord knew the following: that the dog had previously bitted two other children on
the property; that the local police had been called to the scene of the second incident; that
police told him the dog was to be euthanized; and that the tenant had reneged on his
promise to get rid of the dog after the second incident. Thus, the undisputed facts of the
Maggard case are materially different from the undisputed facts in this case.
        {¶ 25} Appellant claims, in her affidavit, that she overheard appellee's agent, Doug
Justice, discussing the dogs with Gilgien when he came to collect the rent in April 2012.
Appellant further avers that, she overheard Justice tell Gilgien that Donna Hansel
complained to him about the pitbull named "Candy" in March 2012. While appellant
insists that her affidavit creates a factual issue whether appellee knew that Knight and
Gilgien kept vicious dogs at the leased premises, and whether appellee had sufficient time
to remove the threat prior to the attack upon appellant, such factual issues are not
material in absence of evidence that appellee harbored the dogs that attacked her. In
other words, even if we accept appellant's affidavit as true, such evidence does not permit
an inference that appellee harbored the dogs that attacked appellant.5
IV. DISPOSITION
        {¶ 26} Based upon the undisputed evidence submitted by appellee, and construing
the remaining evidence in appellant's favor, appellee is entitled to judgment in its favor on
appellant's common law negligence claim. Therefore, we hold that the trial court did not
err in granting summary judgment in favor of appellee. Appellant's sole assignment of
error is overruled. Having overruled appellant's sole assignment of error, we affirm the


5 Given our determination regarding the first element of appellant's prima facie case, we need not address
the question whether the averments in appellant's affidavit are inconsistent with her prior deposition
testimony.
No. 13AP-367                                                              10


judgment of the Franklin County Court of Common Pleas.
                                                           Judgment affirmed.

                         TYACK and DORRIAN, JJ., concur.
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