[Cite as Spangler v. Stark Cty. Dog Warden, 2013-Ohio-4774.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ROBERT T. SPANGLER                                        JUDGES:
                                                          Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                               Hon. John W. Wise, J.
                                                          Hon. Craig R. Baldwin, J.
-vs-
                                                          Case No. 2013 CA 00023
STARK COUNTY DOG WARDEN

        Defendant-Appellee                                OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Canton Municipal
                                                      Court, Case No. 12 CVH 5804


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               October 28, 2013



APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

JOHN A. BURNWORTH                                     JOHN D. FERRERO
MATTHEW W. ONEST                                      PROSECUTING ATTORNEY
KRUGLIAK, WILKINS                                     MICHAEL S. BICKIS
GRIFFITHS, & DOUGHERTY                                ASSISTANT PROSECUTOR
4775 Munson Street, NW                                110 Central Plaza South
Post Office Box 36963                                 Suite 510
Canton, Ohio 44735-6963                               Canton, Ohio 44702
Stark County, Case No. 2013 CA 00023                                                  2

Wise, J.

      {¶1}   Appellant Robert T. Spangler appeals from the decision of the Canton

Municipal Court, Stark County, which affirmed a dog warden’s classification of his dog

as dangerous. The relevant procedural facts leading to this appeal are as follows.

      {¶2}   Following an incident on or about August 24, 2012, as further analyzed

infra, Appellee Stark County Dog Warden notified Appellant Spangler that his mixed-

breed dog, Shadow, was being classified as a dangerous dog pursuant to R.C. 955.11.

      {¶3}   On September 7, 2012, appellant filed an appeal of said classification in

the Canton Municipal Court, pursuant to R.C. 955.222.

      {¶4}   The matter proceeded to a hearing before a magistrate on September 25,

2012. On that date, Appellant Spangler appeared pro se; no one appeared on behalf of

Appellee Stark County Dog Warden. The magistrate proceeded to hear from appellant

and thereupon issued a decision finding Shadow was not a dangerous dog under the

aforementioned statute.

      {¶5}   However, on September 26, 2012, appellee filed an objection to the

decision of the magistrate, asserting that the dog classification complaint filed by

appellant did not include any notice of the hearing conducted on September 25, 2012.

The matter was then rescheduled for a hearing before a different magistrate on October

17, 2012.

      {¶6}   On October 18, 2012, the magistrate filed a handwritten decision finding

Shadow to be a dangerous dog pursuant to R.C. 955.11, contrary to the first decision

issued September 25, 2012.
Stark County, Case No. 2013 CA 00023                                                      3


       {¶7}   On October 26, 2012, appellant filed an objection to the decision of the

magistrate. Appellant also filed a request for findings of fact and conclusions of law.

       {¶8}   On November 28, 2012, the magistrate issued a decision with findings of

fact and conclusions of law, again finding Shadow to be a dangerous dog.

       {¶9}   Appellant, with leave of the trial court, filed supplemental objections on

December 10, 2012.

       {¶10} On January 10, 2013, the trial court issued a judgment entry overruling

appellant’s objections and approving the decision of the magistrate. The trial court

issued a nunc pro tunc judgment entry on January 22, 2013. The court further denied

appellant’s “motion for reconsideration of court’s adoption of magistrate’s recommended

order” [sic] via a judgment entry filed January 29, 2013.

       {¶11} Appellant filed a notice of appeal on February 8, 2013. He herein raises

the following two Assignments of Error:

       {¶12} “I. THE TRIAL COURT’S DECISION TO CLASSIFY APPELLANT’S DOG

AS ‘DANGEROUS,’ PURSUANT TO R.C. 955.11(A)(1)(a)(i) AND R.C. 955.222, WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶13} “II.   THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

ADOPTED, THE         MAGISTRATE’S         RECOMMENDED DECISION CLASSIFYING

APPELLANTS [SIC] DOG AS ‘DANGEROUS,’ PURSUANT TO R.C. 955.11(A)(1)(a)(i)

AND R.C. 955.222.”
Stark County, Case No. 2013 CA 00023                                                      4


                                            I., II.

       {¶14} In his First and Second Assignments of Error, appellant contends the trial

court’s affirmance of the dog warden’s classification of Shadow as dangerous was

against the manifest weight of the evidence and an abuse of discretion. We disagree.

       {¶15} R.C. 955.11(A)(1)(a)(i) provides the pertinent definition of a “dangerous

dog” as “a dog that, without provocation, and subject to division (A)(1)(b) of this section,

has *** [c]aused injury, other than killing or serious injury, to any person.”

       {¶16} R.C. 955.222(C) states in part as follows: “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. ***.”

       {¶17} The Ohio Supreme Court has defined “clear and convincing evidence” as

“[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the allegations sought to be established. It 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
Stark County, Case No. 2013 CA 00023                                                       5

unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103–104, 495 N.E.2d 23

(1986).

       {¶18} Our research has revealed no case law interpretation of the procedure set

forth in R.C. 955.222, supra. But because the statute essentially calls for a de novo

hearing by a municipal court or county court upon request by a dog owner, 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. Generally, a civil judgment which is supported by

competent and credible evidence may not be reversed as against the manifest weight of

the evidence. See State v. McGill, Fairfield App.No. 2004–CA–72, 2005–Ohio–2278, ¶

18. In Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012–Ohio–2179, the

Ohio Supreme Court reiterated the following in regard to appellate review of manifest

weight challenges in civil cases: “ ‘[I]n determining whether the judgment below is

manifestly against the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the finding of facts.

* * *.’ ” Id. at 334, quoting Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate

Review, Section 603, at 191–192 (1978). A reviewing court must determine whether the

finder of fact, in resolving conflicts in the evidence, clearly lost his way and created such

a manifest miscarriage of justice that the judgment must be reversed and a new trial

ordered. See Hunter v. Green, Coshocton App.No. 12–CA–2, 2012–Ohio–5801, ¶ 25,

citing Eastley, supra.

       {¶19} The record in the case sub judice indicates that on the evening of August

24, 2012, Rachel and Chris Miraglia walked their dog, a black lab, on the street near
Stark County, Case No. 2013 CA 00023                                                     6


appellant’s residence on Woodridge Road in Plain Township, Stark County. As they

reached a point on the road near the end of appellant’s driveway, Shadow left the

property and approached the Miraglias’ dog. It is undisputed that, at the very least, the

two dogs initially sniffed and pawed at each other. According to Rachel, Shadow then

“started attacking” their dog, such that Chris, who was holding the leash, “was like

jerking the dog around in a circle and their dog [Shadow] was just fiercely chasing after

him and it was just chaos.” Tr. II at 6. Rachel then recalled that Shadow bit their dog in

the neck and bit Chris on his leg. Tr. II at 10.

       {¶20} Chris testified that he felt threatened when Shadow came running out into

the street, but that Shadow was actually “going for” their dog and “didn’t attack me.” Tr.

II at 13. However, Chris did maintain that Shadow bit him in the calf. Tr. II at 16. He

summarized: “Um, [I was] just trying to yank the dogs – trying to get ‘em apart when I

got bit, just trying to keep the commotions out. I didn’t want the dogs to fight, so I was

just trying to jerk ‘em around. I guess I just so happened to be the one that got bit, I

mean, you know I’m sure it was an accident. It wasn’t like it was intentional – you know,

as far as, uh, I can’t say that …. I would never expect to think that a dog’s going to bite

me. ***.” Id. Chris also noted that the bite broke the skin and that he went to either

Mercy Medical Center or Aultman Hospital for treatment, where he was given a tetanus

shot. Id. However, as appellant emphasizes, the Miraglias did not provide any

photographs or written medical documentation of the bite.
Stark County, Case No. 2013 CA 00023                                                        7


       {¶21} During the hearing, a written statement by appellant’s adult daughter, Lisa

Spangler, was read into the record without objection by appellee.1 Lisa stated therein

that she had been painting in the garage when she heard Shadow's collar bell ringing

and went to check on him. Tr II. at 26. She then saw Shadow in the street with a man,

woman, and another dog. She indicated that when she got to a position about ten feet

away, the dogs started barking and pawing at each other. Tr. II at 26. According to her

statement, she saw the man jerk his dog and began shouting and cursing. Tr. II at 26.

She also said she saw the man kick Shadow at least twice before she caught his collar.

Tr. II at 27. She then heard the man say Shadow had bitten him and had bitten his dog

twice, but she did not see Shadow bite the man. Tr. II at 27.

       {¶22} Appellant urges that based on the conflicting testimony, assuming Chris

was bitten at all, it was just as likely that his own dog bit him in the incident. See

Appellant’s Brief at 11. However, “[i]t is well-established that when there is a conflict in

the testimony on any subject, the question is one for the trier of fact.” Ayers v. Ishler, 5th

Dist. Delaware No. 11 CAE 01 0001, 2011-Ohio-4272, ¶ 60, citing Barnett v. Hills

(App.1947), 50 Ohio Law Abs. 208, 212, 79 N.E.2d 691. Moreover, we reiterate that the

statute in question merely requires a demonstration that the dog in question “caused

injury” without provocation. Here, even if the finder of fact had rejected Chris and

Rachel’s recollection that Shadow initiated the bite, evidence was presented that

Shadow left appellant's property and confronted the Miraglias’ dog, leading to a chain of

events resulting in some sort of puncture injury to Chris Miraglia’s leg. As an appellate



1
   Earlier in the hearing, Rachel Miraglia had noted the presence of a female trying to
get Shadow back during the incident in question. However, Rachel repeatedly described
this individual as a “little girl.” See Tr. II at 7.
Stark County, Case No. 2013 CA 00023                                                   8


court, we ordinarily must presume that the legislature means what it says; we cannot

amend statutes to provide what we consider a more logical result. See State v. Link,

155 Ohio App.3d 585, 2003–Ohio–6798, 802 N.E.2d 680, ¶ 17, citing State v.

Virasayachack (2000), 138 Ohio App.3d 570, 741 N.E.2d 943.

      {¶23} Upon review, we find the trial court’s decision under the statute’s clear and

convincing standard was not an abuse of discretion requiring reversal and did not create

a manifest miscarriage of justice requiring that the judgment be reversed and a new

hearing ordered. Appellant’s First and Second Assignments of Error are therefore

overruled.

      {¶24} For the reasons stated in the foregoing opinion, the judgment of the

Canton Municipal Court, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.



                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. W. SCOTT GWIN


                                            ___________________________________
                                            HON. CRAIG R. BALDWIN

JWW/d 1010
Stark County, Case No. 2013 CA 00023                                          9


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




ROBERT T. SPANGLER                         :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
STARK COUNTY DOG WARDEN                    :
                                           :
       Defendant-Appellee                  :         Case No. 2013 CA 00023




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________
                                           HON. JOHN W. WISE


                                           ___________________________________
                                           HON. W. SCOTT GWIN


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
