[Cite as Holloway v. Leech, 2019-Ohio-43.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Nicole Holloway,                                   :

                Plaintiff-Appellee,                :
                                                                    No. 18AP-02
v.                                                 :             (C.P.C. No. 16CV-9973)

James Leech et al.,                                :           (REGULAR CALENDAR)

                Defendants-Appellees,              :

(Larry Kirk,                                       :

                Defendant-Appellant).              :


                                             D E C I S I O N

                                    Rendered on January 10, 2019


                On brief: Slater & Zurz, LLP, and Mark A. Ropchock, for
                appellee. Argued: Mark A. Ropchock.

                On brief: Larry Kirk, pro se. Argued: Larry Kirk.

                  APPEAL from the Franklin County Court of Common Pleas

HORTON, J.

        {¶ 1} Defendant-appellant, Larry Kirk, appeals from a judgment of the Franklin
County Court of Common Pleas finding him jointly and severally liable with James Leech
for the injury to plaintiff-appellee, Nicole Holloway, caused by a dog on February 6, 2016,
with Kirk as the owner and James Leech as the keeper of the dog. For the following reasons,
we affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellee Holloway rented a single family home from appellant Kirk. Laura
Hutchinson lived with Holloway. Leech rented the house next door to Holloway and
Hutchinson, also from Kirk. Leech had two dogs living with him. On February 6, 2016,
No. 18AP-02                                                                              2


Leech let one of the dogs, Kane, into his yard and the second dog escaped from the house
without a collar or a leash. The second dog jumped the fence into Holloway's back yard.
Holloway testified she was outside with her dogs and, when she heard the dogs next door
were outside, she attempted to get her dogs back inside. Holloway testified that the second
dog she knew as "Rusty," was a brown and white pit bull. Rusty attacked her leg as she
attempted to go up the steps to her back porch. She sustained a serious bite to her lower
left calf. She still had a scar that was approximately 4 x 4 inches at the trial. She had
$31,000 in medical bills and still used daily medication for the permanent damage to the
nerves in her leg. Holloway testified that Kirk had previously told her he had owned Rusty
but Rusty had bitten two people and so Kirk "chose to move him to the ghetto, cause who
cares if it bites somebody in the hood" and Kirk told her Leech had an issue with the
previous neighbors so Kirk gave him Rusty for protection. (Oct. 23, 2017 Tr. at 79.)
       {¶ 3} Hutchinson testified that she lived with Holloway and that morning they
were taking the dogs outside. Whenever Holloway and Hutchinson would hear the dogs
outside next door, they would move their dogs back inside because Rusty was "vicious."
(Tr. at 100-01.) Hutchinson testified that Rusty jumped over the fence and she was able to
get her dogs back in her house but, when she turned around, Rusty latched onto Holloway's
leg. Hutchinson kicked Rusty with her steel-toed boots and stood between Rusty and
Holloway.   (Tr. at 100.)   Hutchinson called for an ambulance immediately but the
emergency responders could not enter the backyard because Leech could not contain the
dog. (Tr. at 102-03.) Hutchinson also testified that Kirk told her he had given Rusty to
Leech and Rusty had bitten two people when Rusty lived in Hilliard with Kirk. (Tr. at 105.)
       {¶ 4} Leech testified that a man from the neighborhood gave him two dogs from
the same litter, Rusty and Rosco. Leech gave Rusty to Iren Fillinger, the brother of Aaron
Fillinger, who worked for Kirk. Someone gave Leech the dog, named Kane, the night before
Holloway and Hutchinson moved in next door. Leech does not believe his dog bit Holloway
because by the time he entered Holloway's yard, the bite had already occurred. He testified
he used his belt to remove his dog from her yard.
       {¶ 5} Aaron Fillinger testified that he works as a property manager/maintenance
for Kirk. In spring 2013, his brother, Iren, had two dogs, Rusty and Kane. Iren moved and
gave Rusty to Kirk and Kane to Leech.
No. 18AP-02                                                                                  3


       {¶ 6} Finally, Kirk testified. He stated that there were two dogs from the same
litter, and he had one, Rusty, and Leech had Rosco, who was not an aggressive dog.
However, he argues that Rosco was the dog that bit Holloway. Kirk denied having a
conversation with Hutchinson regarding dogs but admitted he told Holloway in 2013 about
problems he had with Rusty. He denied that the dog Leech owned was his dog. He admitted
there were two incidents in Hilliard involving Rusty and both times charges were dismissed.
In November 2013, Rusty was no longer in his backyard and he did not know what
happened to him. (Tr. at 151.) Kirk never filed a form with the county to indicate that Rusty
had died, had been transferred, or had been sold. (Tr. at 152.)
       {¶ 7}   Jodi Kroeger, a field supervisor for the enforcement division of the Franklin
County Animal Care and Control ("Animal Control") testified over Kirk's objection.
Kroeger was not identified on Holloway's witness list. However, another witness from
Animal Control was identified on the list, just with the wrong name. Kroeger testified that
there were two complaint forms filed against Kirk involving dog bites from a brown male
pit bull dog named Rusty. One incident occurred on September 20, 2013 and the second
incident occurred on October 12, 2013. (Tr. at 30-32.) The report from the February 6,
2016 incident indicated a brown and white pit bull named Rosco owned by Leech bit
Holloway. The responding deputy was concerned that Rosco was actually Rusty. The
deputy talked to Kirk who indicated that Rusty had been killed by his neighbor three years
prior to this incident. Leech had indicated that he "got the dog [Rosco] from the
neighborhood." (Tr. at 46.) The Ohio Revised Code required Kirk to notify the Franklin
County Auditor if his dangerous dog died, was given away, or sold. Kirk was given a citation
for failing to file that form. The dog that bit Holloway also bit two kennel attendants while
it was in the care of Animal Control. The dog was later euthanized. Kroeger testified that
the pictures of Rusty and Rosco looked like the same dog but the lighting in the photographs
was different so she was not 100 percent positive the dogs in the pictures were the same
dog. (Tr. at 39; 48-49.)
       {¶ 8} Holloway filed a complaint against both Leech and Kirk alleging negligence
and strict liability for her injuries. After the trial, the magistrate filed a decision finding
Kirk and Leech jointly and severally liable for $83,844.57. Kirk filed a late objection
alleging that the magistrate's findings of fact were not supported by the evidence in the case.
No. 18AP-02                                                                                   4


The trial court granted Kirk's motion to accept late filing of objections, overruled his
objection, and adopted the magistrate's decision in full.
II. ASSIGNMENTS OF ERROR
       {¶ 9} Kirk filed a timely notice of appeal and raised the following assignments of
error for our review:
              [I.] THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION IN ALLOWING A WITNESS FOR THE
              APPELLEE TO TESTIFY THAT WAS NOT ON THE
              APPELLEE'S WITNESS LIST.

              [II.] THE TRIAL COURT ERRED IN THAT THE EVIDENCE
              OF THE CASE DOES NOT SUPPORT THE FINDINGS OF
              FACT AND CONCLUSIONS OF LAW.

              [III.] THE TRIAL COURT ERRED IN A QUESTION OF LAW
              BY NOT GIVING WEIGHT TO THE EVIDENCE
              SUPPORTED BY STATE LAW AND FAILING TO FOLLOW
              STATE LAW.

              [IV.] THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION IN VIOLATING OHIO RULE OF EVIDENCE
              BY ALLOWING APPELLEE TO ENTER INTO THE RECORD
              A CRIMINAL RECORD OF APPELLANT LARRY KIRK.

III. ANALYSIS
       {¶ 10} Initially, we note that Kirk did not raise the issues related to assignments of
error one and four in his objections to the magistrate's decision. The failure to file timely
objections to a magistrate's decision under Civ.R. 53(D)(3)(b) constitutes the waiver of the
right to appellate review of all but plain error. "In civil cases, appellate courts must proceed
with caution and find plain error only in ' "extremely rare circumstances" where the error
seriously affects the basic fairness, integrity, or public reputation of the judicial process
itself.' " Skydive Columbus Ohio, LLC v. Litter, 10th Dist. No. 09AP-563, 2010-Ohio-3325,
¶ 13, quoting Unifund CCR Partners v. Hall, 10th Dist. No. 09AP-37, 2009-Ohio-4215,
¶ 22, quoting Goldfuss v. Davison, 79 Ohio St.3d 116, 121 (1997).
       {¶ 11} In his first and fourth assignments of error, Kirk asserts that the trial court
erred in allowing a witness for Holloway, Kroeger, to testify when that witness was not
No. 18AP-02                                                                                     5


identified on Holloway's pre-trial witness list and by allowing Holloway to question a
witness regarding Kirk's criminal record.
       {¶ 12} An evidentiary ruling cannot be the basis of a claim of error unless the error
establishes that a substantial right was affected and to affect a substantial right, one must
demonstrate that the alleged error affected the final determination of the case. Lips v. Univ.
of Cincinnati College of Med., 10th Dist. No. 12AP-374, 2013-Ohio-1205, ¶ 49, citing
Campbell v. Johnson, 87 Ohio App.3d 543, 551 (2d Dist.1993). A discovery violation in
failing to supply the name of a witness does not necessarily require that the trial court refuse
to allow the witness to testify because the trial court generally has the discretion to
determine the sanction for a discovery violation. Woodruff v. Bar, 10th Dist. No. 02AP-
351, 2002-Ohio-5616, ¶ 14-16.
       {¶ 13} Here, Kroeger's testimony explained many of the exhibits that were
introduced. Holloway did identify a witness from Animal Control but it was not Kroeger.
However, given the nature of the case, it does not seem unlikely to expect that a supervisor
from Animal Control would testify.
       {¶ 14} Further, even though Kroeger's testimony regarding the pictures being the
same dog arguably bears on the credibility of Holloway and Hutchinson, we are not
persuaded that Kirk has demonstrated plain error. The trier of fact bears the burden of
assessing the credibility and veracity of witnesses and "may believe all, part or none of a
witness' testimony, giving a witness little or no weight at all." Parsons v. Washington State
Community College, 10th Dist. No. 05AP-1138, 2006-Ohio-2196, ¶ 21, citing Botts v. Tibbs,
12th Dist. No. CA98-06-125 (May 24, 1999).
       {¶ 15} Additionally, this hearing was a bench trial before a magistrate. "In a bench
trial, the trial court is presumed to have considered only relevant, material, and competent
evidence." Future Communications, Inc. v. Hightower, 10th Dist. No. 96APE03-372
(Sept. 12, 1996), citing Cleveland v. Assoc. of Cleveland Fire Fighters, Loc. 93, Internatl.
Assn. of Fire Fighters, 73 Ohio App.3d 220 (8th Dist.1991). Neither the magistrate's
decision nor the trial court's decision mention or relied upon Kirk's criminal record. These
facts do not rise to the level of extremely rare circumstances where the error seriously
affects the basic fairness, integrity, or public reputation of the judicial process itself. Having
found no plain error, Kirk's first and fourth assignments of error are overruled.
No. 18AP-02                                                                               6


       {¶ 16} In Kirk's second and third assignments of error, he contends that the
judgment is against the manifest weight of the evidence. Kirk argues that the magistrate
made several mistakes in his findings of fact regarding who owns the dog and that the
magistrate did not give proper weight to Kirk's testimony, his witnesses' testimony, and the
exhibits he introduced into evidence.
       {¶ 17} Judgments which are supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed by a reviewing court as being
against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio
St.2d 279 (1978), syllabus. "When a party asserts that the finding is against the manifest
weight of the evidence, he must demonstrate that the evidence could lead to only one
conclusion and that conclusion is contrary to the judgment." Hill v. Briggs, 111 Ohio
App.3d 405, 412 (10th Dist.1996). This court should not reverse any of the magistrate's
findings of fact unless the finding of fact is found to have no credible evidence supporting
it. Galay v. DOT, 10th Dist. No. 05AP-383, 2006-Ohio-4113. This court may not substitute
its judgment for that of the trial court if competent, credible evidence supports the trial
court's judgment. Koch v. Ohio Dept. of Natural Resources, 95 Ohio App.3d 193, 198 (10th
Dist.1994), citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984).
       {¶ 18} Holloway filed this action for negligence and strict liability pursuant to
R.C. 955.28, which provides, as follows:
              (B) The owner, keeper, or harborer of a dog is liable in
              damages for any injury, death, or loss to person or property
              that is caused by the dog, unless the injury, death, or loss was
              caused to the person or property of an individual who, at the
              time, was committing or attempting to commit criminal
              trespass or another criminal offense other than a minor
              misdemeanor on the property of the owner, keeper, or
              harborer, or was committing or attempting to commit a
              criminal offense other than a minor misdemeanor against any
              person, or was teasing, tormenting, or abusing the dog on the
              owner's, keeper's, or harborer's property. Additionally, the
              owner, keeper, or harborer of a dog is liable in damages for
              any injury, death, or loss to person or property that is caused
              by the dog if the injury, death, or loss was caused to the person
              or property of an individual who, at the time of the injury,
              death, or loss, was on the property of the owner, keeper, or
              harborer solely for the purpose of engaging in door-to-door
No. 18AP-02                                                                                 7


              sales or other solicitations regardless of whether the
              individual was in compliance with any requirement to obtain
              a permit or license to engage in door-to-door sales or other
              solicitations established by the political subdivision in which
              the property of the owner, keeper, or harborer is located,
              provided that the person was not committing a criminal
              offense other than a minor misdemeanor or was not teasing,
              tormenting, or abusing the dog.

       {¶ 19} A negligence action requires Holloway to prove by a preponderance of the
evidence that Kirk and Leech owed her a duty of care, that they breached that duty, and that
the breach proximately caused her injuries. Strother v. Hutchinson, 67 Ohio St.2d 282,
285 (1981). There was competent, credible evidence supporting the trial court's decision
that Rosco and Rusty were the same dog and that Kirk was the owner. The photographs of
the dog involved in the prior attacks (Rusty) and the dog involved in the attack on Holloway
look identical and the dog is wearing the same collar. The investigating officer documented
her doubts regarding Kirk's statement that Rusty had been killed three years prior to the
incident. Both Holloway and Hutchinson testified that Kirk had previously told them that
he had given Rusty to Leech for protection after Leech had been attacked. Further, they
testified that Kirk had told them about the two previous incidents that Rusty had bitten
people in Hilliard.
       {¶ 20} Kirk presented a defense at the trial that Leech owned the dog that bit
Holloway. He testified there were two dogs from the same litter, Rusty and Rosco. Kirk
owned Rusty who had the two previous bite incidents in Hilliard and was killed by a
neighbor. Rosco was owned by Leech and bit Holloway. However, Holloway and
Hutchinson both testified that Kirk had told them that he gave the dog named Rusty to
Leech. Hutchinson informed the Animal Control investigating officer that Rusty was the
dog that attacked Holloway.
       {¶ 21} The magistrate's decision depends heavily on the credibility of the witnesses.
The magistrate specifically stated in his decision that he: "considered the credibility of the
witnesses. The Magistrate's opinion concerning the credibility of the witnesses is based
upon the appearance of each witness upon the stand; their manner of testifying; the
reasonableness of the testimony; the opportunity they had to see, hear and know the things
concerning which they testified; their accuracy of memory; frankness (or lack of it);
No. 18AP-02                                                                                 8


intelligence, interest and bias (if any); together with all the facts and circumstances
surrounding the testimony." (Oct. 24, 2017 Mag.'s Decision at 2-3.) The magistrate
specifically found that the testimony of Holloway and Hutchinson was more credible than
the testimony of Kirk and Leech, despite any bias. (Mag.'s Decision at 9-10.) The magistrate
found that the dog that bit Holloway was Rusty and Kirk was the owner and Leech was the
keeper. " 'The choice between credible witnesses and their conflicting testimony rests solely
with the finder of fact and an appellate court may not substitute its own judgment for that
of the finder of fact.' " Doe v. Vineyard Columbus, 10th Dist. No. 13AP-599, 2014-Ohio-
2617, ¶ 24, quoting Cuyahoga Metro. Housing Auth. v. Davis, 197 Ohio App.3d 411, 2011-
Ohio-6162 (8th Dist.). "We are bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence." Hill at 412. As the Supreme Court of Ohio
stated in Seasons Coal Co. at 80: "The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that the trial judge is best able to view
the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony." We find that there is
competent, credible evidence supporting the trial court's decision. Kirk's second and third
assignments of error are overruled.
IV. CONCLUSION
       {¶ 22} For the foregoing reasons, we conclude that there is competent, credible
evidence supporting the trial court's decision and the trial court did not err or abuse its
discretion. We do not find plain error in Kirk's first and fourth assignments of error so they
are overruled, and his second and third assignments of error are overruled. Accordingly,
the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.
                            TYACK and BRUNNER, JJ., concur.
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