[Cite as Green v. Animal Protection League of Mercer Cty., 2016-Ohio-2767.]




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



CARL L. GREEN III,

        PLAINTIFF-APPELLEE,
                                                                   CASE NO. 10-16-01
        v.

ANIMAL PROTECTION LEAGUE
OF MERCER COUNTY,

        DEFENDANT-APPELLEE,
        -and-                                                      OPINION

LORI WINNER,

        DEFENDANT-APPELLANT.



                          Appeal from Celina Municipal Court
                            Trial Court No. 15-CVH-00852

                      Judgment Reversed and Cause Remanded

                              Date of Decision: May 2, 2016




APPEARANCES:

        John Poppe for Appellant

        Carl L. Green, III, Appellee
Case No. 10-16-01


PRESTON, J.

        {¶1} Although originally placed on our accelerated calendar, we have

elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary

journal entry.   Intervening defendant-appellant, Lori Winner (“Winner”), appeals

the January 5, 2016 decision of the Celina Municipal Court awarding plaintiff-

appellee, Carl L. Green, III (“Green”), possession of a dog in replevin. For the

reasons that follow, we reverse.

        {¶2} In this case, the trial court ordered that a dog—which was seized by

the Mercer County Dog Warden on November 21, 2015 because it was running at

large and was not wearing a current registration tag—to be returned to Green, who

claimed to be the dog’s original owner. On November 25, 2015, the defendant,

the Animal Protection League of Mercer County (“APL”), purchased the dog from

the Mercer County Dog Warden.        The APL, a non-profit organization doing

business as an animal shelter and rescue organization, placed the dog up for

adoption. Winner applied to adopt the dog and took possession of the dog on

December 11, 2015. Her adoption of the dog was finalized on December 20,

2015.

        {¶3} On December 16, 2015, Green filed a complaint asserting claims for

replevin and conversion. (Doc. No. 1). Green’s complaint also requested that the

trial court issue a “temporary injunction” ordering that the APL not transfer the


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dog to another party until the case is resolved. (Id.). The APL was served with

Green’s complaint on December 21, 2015. (Doc. No. 9).

        {¶4} On December 28, 2015, the APL requested a hearing on Green’s

complaint for replevin. (Doc. Nos. 11, 12).

        {¶5} On December 31, 2015, Winner filed a motion for leave to intervene

as a defendant. (Doc. No. 15). That same day, Winner filed her answer to

Green’s complaint and filed a motion to dismiss under Civ.R. 12(B)(7) and for

attorney fees.1 (Doc. Nos. 16, 17).

        {¶6} On January 4, 2016, the trial court granted Winner’s motion to

intervene as a defendant. (Doc. No. 18). The case proceeded to bench trial on

January 5, 2016. (Jan. 5, 2016 Tr. at 1). At trial, the trial court concluded that the

Mercer County Dog Warden was not an indispensable party to the action. (See id.

at 4). That same day, the trial court granted replevin of the dog to Green, and

ordered Winner to return the dog to Green. (Doc. No. 19). In its entry, the trial

court stated, “[The trial court] does not grant [the APL’s] requests nor attorney

fees or money damages to anyone however involved except as delineated here

later.” (Id.).

        {¶7} Winner filed her notice of appeal on January 6, 2016. (Doc. No. 20).

That same day, she filed a motion to stay the provision of the trial court’s order


1
 Although it is unclear, we presume Winner filed her answer and motion instanter, and that her answer and
motion were filed when her motion to intervene was granted. (See Doc. Nos. 16, 17).

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requiring her to return the dog to Green, which the trial court denied.2 (Doc. Nos.

21, 27). She raises two assignments of error.

                                    Assignment of Error No. I

         The Trial Court Erred in Returning the Dog in Question to the
         Appellee.

         {¶8} In her first assignment of error, Winner argues that the trial court erred

by granting Green’s replevin claim and ordering that the dog be returned to him.

In particular, she argues that Green’s “ownership interest had terminated by

operation of law.” (Appellant’s Brief at 3).

         {¶9} “‘When reviewing a civil appeal from a bench trial, we apply a

manifest weight standard of review.’” Lump v. Larson, 3d Dist. Logan No. 8-14-

14, 2015-Ohio-469, ¶ 9, quoting San Allen, Inc. v. Buehrer, 8th Dist. Cuyahoga

No. 99786, 2014-Ohio-2071, ¶ 89, citing Revilo Tyluka, L.L.C. v. Simon Roofing

& Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, ¶ 5 (8th Dist.).

“‘[A] civil judgment “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.”’” Id., quoting Warnecke v.




2
  Because Winner’s compliance with the trial court’s order to return the dog to Green was involuntary, the
issues she raises on appeal are not moot. See City of Grove City v. Clark, 10th Dist. Franklin No. 01AP-
1369, 2002-Ohio-4549, ¶ 14, citing Favret Co. v. W., 21 Ohio App.2d 38, 40 (10th Dist.1970) (concluding
that issues raised on appeal are not moot when compliance with the trial court’s order is involuntary); Clark
at ¶ 16 (concluding that compliance with a trial court’s order can be involuntary if a party complies with the
order after requesting a stay of execution of the order).

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Case No. 10-16-01


Chaney, 194 Ohio App.3d 459, 2011-Ohio-3007, ¶ 13 (3d Dist.), quoting C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.

       {¶10} “‘“[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the

trier of fact are correct.”’” Id. at ¶ 10, quoting Warnecke at ¶ 13, quoting State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. “‘The rationale for this

presumption is that the trial court is in the best position to evaluate the evidence by

viewing witnesses and observing their demeanor, voice inflection, and gestures.’”

Id., quoting Warnecke at ¶ 13, citing Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80 (1984). “‘“A reviewing court should not reverse a decision simply

because it holds a different opinion concerning the credibility of the witnesses and

evidence submitted before the trial court.”’” Id., quoting Warnecke at ¶ 13,

quoting Seasons Coal Co. at 81. “‘“A finding of an error in law is a legitimate

ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not.”’” Id., quoting Warnecke at ¶ 13, quoting Seasons Coal Co. at 81.

       {¶11} In this case, the trial court concluded that the Mercer County Dog

Warden complied with its statutory obligation and legally sold the dog to the APL,

which vested ownership of the dog with the APL. Furthermore, the trial court




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concluded that Winner adopted the dog from the APL.3 However, the trial court

went on to conclude that the dog should be returned to Green because “[t]here was

no good and legal reason not to return and/or let him adopt it over others” and

because “it is in the best interest of the dog.” (Doc. No. 19). The trial court’s

conclusion is against the manifest weight of the evidence because there is no

competent, credible evidence in the record that Green is entitled to possession of

the dog.

         {¶12} “In Ohio, replevin is solely a statutory remedy.” Gregory v. Martin,

7th Dist. Jefferson No. 15 JE 17, 2016-Ohio-650, ¶ 20, citing America Rents v.

Crawley, 77 Ohio App.3d 801, 804 (10th Dist.1991). “It is an action at law, not in

equity and, therefore, a court cannot provide remedies not specifically enumerated

by statute.” America Rents at 804, citing Hare & Chase v. Hoag, 27 Ohio App.

326 (6th Dist.1927).

         “A replevin suit simply seeks to recover goods from one who

         wrongfully retains them at the time the suit is filed. Replevin does

         not even require an ‘unlawful taking.’ The plaintiff in replevin need




3
  Yet, the trial court concluded that the APL’s adoption of the dog to Winner “may have been done in
violation of the Replevin (stay) action” because Winner’s adoption of the dog was completed on December
20, 2015 and Green’s complaint was filed on December 16, 2015. (Doc. Nos. 1, 19). However, Green’s
complaint was served on the APL on December 21, 2015. (Doc. No. 9). Further, the record does not
reflect that the trial court granted any injunction or stay, or impart any notice to the APL to prevent it from
disposing of the dog during the pendency of the action. See R.C. 2737.20. Accordingly, the trial court’s
speculation is unfounded.

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Case No. 10-16-01


       only prove that he is entitled to certain property and that the property

       is in the defendant’s possession.”

Gregory at ¶ 20, quoting Wysocki v. Oberlin Police Dept., 9th Dist. Lorain No.

13CA010437, 2014-Ohio-2869, ¶ 7, quoting Wilson v. Jo-Ann Stores, Inc., 9th

Dist. Summit No. 26154, 2012-Ohio-2748, ¶ 11. See also Mulhollen v. Angel,

10th Dist. Franklin No. 03AP-1218, 2005-Ohio-578, ¶ 23 (“In order to recover the

possession of specific property pursuant to a replevin claim, a plaintiff must prove

that he is entitled to the possession of the property and that, at the time the

replevin action was filed, the defendant had actual or constructive possession and

control of the property.”), citing Tewarson v. Simon, 141 Ohio App.3d 103, 117

(9th Dist.2001).

       {¶13} R.C. Chapter 2737, which governs replevin in Ohio, provides, in

relevant part:

       In an action to recover possession of personal property in which an

       order of possession has been issued, the final judgment shall award

       permanent possession of the property and any damages to the party

       obtaining the award to the extent the damages proximately resulted

       from the taking, withholding, or detention of the property by the

       other, and the costs of the action. If delivery of the property cannot

       be made, the action may proceed as a claim for conversion upon due


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        notice being given the respondent of the date, time, place, and

        purpose of the hearing upon such claim.

R.C. 2737.14.4

        {¶14} Under Ohio law “[d]ogs are personal property, and the inability or

failure to redeem them, once impounded, results in the loss or forfeiture of the

property.” State ex rel. Lewis v. Bd. of Jackson Cty. Commrs., 4th Dist. Jackson

No. 98CA830, 2002-Ohio-1424, ¶ 9. See also R.C. 955.03. “R.C. 955.12, 955.16,

and 955.18 clearly provide a remedy to prevent this loss or forfeiture.”                                Id.

Among other things, R.C. 955.12 requires [county] dog wardens to seize and

impound dogs found running at large and dogs more than three months old not

wearing a current registration tag (with certain exceptions).” Id. at ¶ 8, citing R.C.

955.12. Under R.C. 955.16, a dog that is not registered as required by R.C. 955.01

and that has been seized by a county dog warden under R.C. 955.12 is required to

be kept for three days by a county dog warden for the owner to redeem the dog as

described in R.C. 955.18. See Young v. Gostomsky, 2d Dist. Miami No. 78 CA 9,

4
  We note that it appears that the trial court issued a final judgment awarding Green, who was not in
possession of the dog at the time the trial court issued its final judgment, permanent possession of the dog
without issuing a prejudgment order of possession. Compare R.C. 2737.14 with R.C. 2737.01(D) and R.C.
2737.08. Compare America Rents, 77 Ohio App.3d at 804 (concluding that the trial court could not award
permanent possession of property in a replevin action unless the trial court issued a prejudgment-possession
order) with Long v. Noah’s Lost Ark, Inc., 158 Ohio App.3d 206, 2004-Ohio-4155 (7th Dist.) (concluding
that the trial court may issue a final judgment awarding permanent possession of personal property “to the
party not in possession at the time the judgment is granted” “when no prejudgment order of possession has
been issued, but delivery of the property can be made”). However, because we conclude that there is no
competent, credible evidence in the record that Green is entitled to possession of the dog, we need not
address that issue in this case.



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1978 WL 216346, *2 (Oct. 20, 1978); R.C. 955.01; R.C. 955.12; R.C. 955.16;

R.C. 955.18. The county dog warden is also required to notify the dog’s owner of

their rights and obligations to redeem the dog. See Young at *2; R.C. 955.12.

      If the owner, keeper, or harborer cannot be determined from the

      current year’s registration list maintained by the warden and the

      county auditor of the county where the dog is registered, the officer

      shall post a notice in the pound or animal shelter both describing the

      dog and place where seized and advising the unknown owner that,

      unless the dog is redeemed within three days, it may thereafter be

      sold or destroyed according to law.

R.C. 955.12. Once the three-day redemption period expires, the statute authorizes

the county dog warden to sell or destroy the dog. See Young at *2; Lewis at ¶ 8.

See also R.C. 955.12; R.C. 955.16; R.C. 955.18.

      {¶15} The parties do not dispute that the Mercer County Dog Warden acted

in accordance with R.C. Chapter 955, and there is no evidence in the record that

the Mercer County Dog Warden did not comply with his statutory duties. Indeed,

the parties do not dispute that the dog was running at large, was more than three-

months old, and was not wearing a current registration tag. (See Jan. 5, 2016 Tr.

at 6, 11, 28); (Doc. Nos. 1, 19). The Mercer County Dog Warden seized the dog

on November 21, 2015 and sold the dog to the APL on November 25, 2015—that


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is, because Green did not redeem the dog within the three-day redemption period,

the Mercer County Dog Warden was statutorily authorized to sell the dog to the

APL. (Doc. Nos. 1, 12, 17). Therefore, the APL legally owned the dog on

November 25, 2015—that is, the APL’s right to possess the dog was superior to

Green’s right to possess the dog because it legally purchased the dog from the

Mercer County Dog Warden.

       {¶16} As the legal owner of the dog, the APL was free to dispose of the

dog. Thus, the APL was free to dispose of the dog by selecting a candidate to

adopt the dog in accordance with its adoption policies and procedures, and Winner

applied to adopt the dog. Green could have applied to adopt the dog from the

APL, but chose not to. (Jan. 5, 2016 Tr. at 13, 17-18). Nonetheless, even if Green

applied to adopt the dog, the APL was not required to permit Green to adopt the

dog. Even though the APL asserted to the trial court at trial that it “received an

application from Mrs. Winner, but [it] is holding the check and holding the

application until the Court resolves this matter” and that the adoption application

“was tentatively signed,” the trial court concluded that Winner adopted the dog.

(Jan. 5, 2016 Tr. at 22, 27); (Doc. No. 19). The trial court was in the best position

to evaluate the evidence, and we are obligated to presume the trial court’s findings

are correct.   Lump, 2015-Ohio-469, at ¶ 10.        Furthermore, the trial court’s

conclusion that Winner adopted the dog is supported by some competent, credible


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evidence. (See Doc. Nos. 16, 17, 19); (Jan. 5, 2016 Tr. at 23). As a result, Winner

is the legal owner of the dog—not Green. For these reasons, Green’s replevin

claim fails—that is, there is no competent credible evidence in the record that

Green is entitled to possess the dog.

       {¶17} Therefore, because replevin is a statutory remedy in Ohio, the trial

court’s conclusion that the dog should be returned to Green is against the manifest

weight of the evidence. That is, the trial court erred in exercising its equitable

powers to award possession of the dog to Green under the belief “[t]here was no

good and legal reason not to return and/or let [Green] adopt it over others” and “it

is in the best interest of the dog.” (Doc. No. 19). The statute does not provide for

this type of remedy. See R.C. 2737.14. Moreover, the trial court’s assertion that

the dog should be returned to Green because it is in the dog’s best interest is also

erroneous since the best interest of the dog is not relevant in adjudicating an action

in replevin. See Lewis, 2002-Ohio-1424, at ¶ 9; R.C. 955.03. See also Angrave v.

Oates, 90 Conn.App. 427, 430 (2005), fn. 3 (“A claim of replevin does not involve

the best interest of the dog.”). As such, the trial court erred in granting a remedy

outside of the remedies provided for under the statute.

       {¶18} Therefore, we sustain Winner’s first assignment of error.




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                           Assignment of Error No. II

       The Trial Court Erred in Failing to Find that the Mercer
       County Dog Warden Was an Indispensable Party to the
       Litigation.

       {¶19} In her second assignment of error, Winner argues that the trial court

erred by failing to join the Mercer County Dog Warden as an indispensable party

under Civ.R. 19.

       {¶20} Winner filed a motion to dismiss Green’s complaint under Civ.R.

12(B)(7) for failing to join the Mercer County Dog Warden as an indispensable

party under Civ.R. 19. The trial court purportedly denied this motion at trial by

concluding that the dog warden is not an indispensable party to the action. As

such, we review the trial court’s conclusion as a denial of Winner’s Civ.R.

12(B)(7) motion failing to join an indispensable party under Civ.R. 19.

       {¶21} “An appellate court reviews a trial court’s ruling on a Civ.R.

12(B)(7) motion de novo.” Jones v. Jones, 179 Ohio App. 3d 618, 2008-Ohio-

6069, ¶ 39 (3d Dist.), citing Englehart v. C.T. Taylor Co., 9th Dist. Summit No.

19325, 1999 WL 1215110 (Dec. 8, 1999), citing Plumbers & Steamfitters Local

Union 83 v. Union Local School Dist. Bd. of Edn., 7th Dist. Belmont No. 97-BA-

40, 1998 WL 473335 (July 22, 1998). “Civ.R. 12(B)(7) concerns motions to

dismiss for failure to join an indispensable party pursuant to Civ.R. 19.” Id.

Civ.R. 19 provides, in relevant part:


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      A person who is subject to service of process shall be joined as a

      party in the action if (1) in his absence complete relief cannot be

      accorded among those already parties, or (2) he claims an interest

      relating to the subject of the action and is so situated that the

      disposition of the action in his absence may (a) as a practical matter

      impair or impede his ability to protect that interest or (b) leave any

      of the persons already parties subject to a substantial risk of

      incurring double, multiple, or otherwise inconsistent obligations by

      reason of his claimed interest, or (3) he has an interest relating to the

      subject of the action as an assignor, assignee, subrogor, or subrogee.

Civ.R. 19(A).

      {¶22} As we stated above, Green does not assert that the Mercer County

Dog Warden wrongfully sold the dog to the APL. Thus, the Mercer County Dog

Warden has no interest in the action. See Jones at ¶ 40. Moreover, the Mercer

County Dog Warden is not needed to provide complete relief to the parties

because, as we determined in Winner’s first assignment of error, and as conceded

by the parties, Winner is the owner of the dog. That is, Green did not allege in his

complaint that the Mercer County Dog Warden unlawfully sold the dog to the

APL; rather, he alleged that the APL had an obligation, despite lawfully

purchasing the dog from the Mercer County Dog Warden, to return the dog to him.


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Therefore, because the Mercer County Dog Warden does not have an interest in

this action, and complete relief can be had without joining him as a party, the trial

court did not err by dismissing Winner’s Civ.R. 12(B)(7) motion. Compare id.

Stated differently, the trial court did not err by failing to join the Mercer County

Dog Warden as an indispensable party in this case.

       {¶23} Winner’s second assignment of error is overruled.

       {¶24} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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