[Cite as Coykendall v. Lucas Cty. Dog Warden, 2018-Ohio-2976.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Ashley Coykendall Court of Appeals No. L-17-1253
Appellee Trial Court No. CVH-17-07575
v.
Lucas County Dog Warden DECISION AND JUDGMENT
Appellant Decided: July 27, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell and Elaine B. Szuch, Assistant Prosecuting Attorneys, for appellant.
JENSEN, J. I. Introduction
{¶ 1} Appellant, the Lucas County Dog Warden, appeals the judgment of the
Toledo Municipal Court, Small Claims Division, declaring appellant’s dangerous dog
classification of appellee’s service dog null and void. A. Facts and Procedural Background
{¶ 2} On May 19, 2017, appellee, Ashley Coykendall, received official notice
from appellant that her dog was classified as a dangerous dog. One week later, she filed
a timely appeal of the designation to the trial court. A hearing was held on appellee’s
appeal on July 10, 2017. The following facts were established at the hearing.
{¶ 3} Appellee owns a male service dog named Arkham. Appellee lived with
S.M. and B.M., the owners of a male dog named Mookie. Appellee acquired Arkham
after moving in with S.M and B.M. Over time, Mookie became territorial and aggressive
towards Arkham. On one occasion, Mookie attacked Arkham while the two dogs were
playing tug. After the attack, both owners decided it was best to keep the dogs separated.
Typically, when both dogs occupied the same area of the house, one of the dogs would be
crated to ensure there were no altercations. Arkham had no history of violence and had
never been aggressive when walking freely in the house or in public.
{¶ 4} On April 30, 2017, appellee was returning home from a shopping trip with
Arkham. Prior to appellee’s arrival, E.M. placed Mookie in his crate but failed to latch
the cage door. As Arkham tried to greet E.M., Mookie escaped his crate. E.M. testified
that, as the dogs came face to face with one another, she “went to like grab Arkham, and
the dogs went at each other. * * * I don’t remember specific details, but Mookie grabbed
on to Arkham.” E.M. claims she went after Arkham instead of her own dog because she
thought Mookie would follow her verbal instructions. E.M. testified that Arkham bit her
and that Mookie did not let go of Arkham’s head until after she left the room.
2. {¶ 5} L.K. testified that when he entered the room, E.M., S.M., and J.M. were
already surrounding the dogs. Mookie was locked onto Arkham’s face. L.K. tried to
restrain Arkham and stood over him restricting Arkham’s movement with his legs. When
Arkham bit E.M., he was being restrained by L.K., Mookie still had Arkham’s head in his
mouth, and L.M was pulling on Arkham’s collar. L.K. pried Arkham’s mouth opened
and E.M. ripped her arm away. While L.K. restrained Arkham, J.M. had Mookie in a
choke hold, trying to pull him away from Arkham. S.M. stated that Arkham’s ears were
being pulled during the incident. As Mookie released Arkham, he bit S.M. Both S.M.
and E.M. visited the hospital. Following treatment, the health department informed
appellant of Arkham’s behavior.
{¶ 6} At the hearing held before a magistrate, appellant asserted that it had seen
hundreds of dog bites and was well-versed at analyzing them. Appellant also claimed to
be unaware of any rating scale for the severity of dog bites and was unwilling to discuss
the difference between a deep bite and tearing from a person pulling away. Appellant
acknowledged that jumping into a dog fight with one’s hands is not the best approach,
and recommended using a big stick or high-powered hose.
{¶ 7} At the conclusion of the hearing, the magistrate concluded that appellant’s
designation of Arkham as a dangerous animal was improper after one isolated incident in
which appellant failed to show Arkham was not provoked. In making this decision, the
magistrate considered the circumstances surrounding the bites, Arkham’s lack of a
history of violence, and the provocative actions of those who inserted themselves into the
3. dog fight. After the magistrate issued findings of fact and conclusions of law, the trial
court adopted the magistrate’s decision. Appellant then filed the instant timely appeal.
B. Assignment of Error
{¶ 8} On appeal, the appellant assigns the following error for our review:
1) The Trial Court Erred in Granting Petitioner’s Appeal Rescinding
the Dangerous Dog Classification as Going Against the Manifest weight of
the Evidence.
II. Analysis
A. Provocation
{¶ 9} In its sole assignment of error, appellant argues that the trial court’s decision
to rescind the dangerous dog designation was against the manifest weight of the evidence.
On appeal, we review the trial court’s judgment under a manifest-
weight standard. Henry Cty. Dog Warden v. Henry Cty. Humane Soc’y,
2016-Ohio-7541, 64 N.E.3d 1076, ¶ 13 (3d Dist.). When reviewing a claim
that a judgment is against the manifest weight of the evidence, we must
weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether the trier of fact clearly lost its way in
resolving evidentiary conflicts so as to create such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered. State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In doing so,
we must be mindful that “‘the trial judge is best able to view the witnesses
4. and observe their demeanor, gestures and voice inflections and use these
observations in weighing the credibility of the proffered testimony.’”
Henry Cty. Dog Warden at ¶ 16, quoting Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Where evidence
is susceptible of more than one construction, we must interpret it in a
manner most favorable to sustaining the verdict and judgment. (Citations
omitted.) Id. Ali v. Lucas Cty. Dog Warden, 6th Dist. No. L-16-1274,
2017-Ohio-2809, 91 N.E.3d 68, ¶ 10.
{¶ 10} Under R.C. 955.11(1)(a)(i), dangerous dog is defined, in relevant part, as a
dog that, without provocation, “[c]aused injury, other than killing or serious injury, to any
person.” The term “without provocation” means “that a dog was not teased, tormented,
or abused by a person, or that the dog was not coming to the aid or the defense of a
person who was not engaged in illegal or criminal activity and who was not using the dog
as a means of carrying out such activity.” R.C. 955.11(A)(7).
The terms “teasing,” “tormenting,” and “abusing” are defined for
purposes of R.C. 955.28(B), Ohio’s dog-bite statute, and are set forth in
1 Ohio Jury Instructions 409.03, Section 5. “Teasing” means “to annoy or
to trouble or worry persistently, to be troublesome or to pester.”
“Tormenting” is “conduct which provokes a greater annoyance and implies
some torture or pain,” and “[a]busing” is “mistreatment which includes
some physical injury or pain to the animal.” Ali at ¶ 12.
5. {¶ 11} In his decision in this case, the magistrate concluded that appellant had not
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[Cite as Coykendall v. Lucas Cty. Dog Warden, 2018-Ohio-2976.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Ashley Coykendall Court of Appeals No. L-17-1253
Appellee Trial Court No. CVH-17-07575
v.
Lucas County Dog Warden DECISION AND JUDGMENT
Appellant Decided: July 27, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, John A. Borell and Elaine B. Szuch, Assistant Prosecuting Attorneys, for appellant.
JENSEN, J. I. Introduction
{¶ 1} Appellant, the Lucas County Dog Warden, appeals the judgment of the
Toledo Municipal Court, Small Claims Division, declaring appellant’s dangerous dog
classification of appellee’s service dog null and void. A. Facts and Procedural Background
{¶ 2} On May 19, 2017, appellee, Ashley Coykendall, received official notice
from appellant that her dog was classified as a dangerous dog. One week later, she filed
a timely appeal of the designation to the trial court. A hearing was held on appellee’s
appeal on July 10, 2017. The following facts were established at the hearing.
{¶ 3} Appellee owns a male service dog named Arkham. Appellee lived with
S.M. and B.M., the owners of a male dog named Mookie. Appellee acquired Arkham
after moving in with S.M and B.M. Over time, Mookie became territorial and aggressive
towards Arkham. On one occasion, Mookie attacked Arkham while the two dogs were
playing tug. After the attack, both owners decided it was best to keep the dogs separated.
Typically, when both dogs occupied the same area of the house, one of the dogs would be
crated to ensure there were no altercations. Arkham had no history of violence and had
never been aggressive when walking freely in the house or in public.
{¶ 4} On April 30, 2017, appellee was returning home from a shopping trip with
Arkham. Prior to appellee’s arrival, E.M. placed Mookie in his crate but failed to latch
the cage door. As Arkham tried to greet E.M., Mookie escaped his crate. E.M. testified
that, as the dogs came face to face with one another, she “went to like grab Arkham, and
the dogs went at each other. * * * I don’t remember specific details, but Mookie grabbed
on to Arkham.” E.M. claims she went after Arkham instead of her own dog because she
thought Mookie would follow her verbal instructions. E.M. testified that Arkham bit her
and that Mookie did not let go of Arkham’s head until after she left the room.
2. {¶ 5} L.K. testified that when he entered the room, E.M., S.M., and J.M. were
already surrounding the dogs. Mookie was locked onto Arkham’s face. L.K. tried to
restrain Arkham and stood over him restricting Arkham’s movement with his legs. When
Arkham bit E.M., he was being restrained by L.K., Mookie still had Arkham’s head in his
mouth, and L.M was pulling on Arkham’s collar. L.K. pried Arkham’s mouth opened
and E.M. ripped her arm away. While L.K. restrained Arkham, J.M. had Mookie in a
choke hold, trying to pull him away from Arkham. S.M. stated that Arkham’s ears were
being pulled during the incident. As Mookie released Arkham, he bit S.M. Both S.M.
and E.M. visited the hospital. Following treatment, the health department informed
appellant of Arkham’s behavior.
{¶ 6} At the hearing held before a magistrate, appellant asserted that it had seen
hundreds of dog bites and was well-versed at analyzing them. Appellant also claimed to
be unaware of any rating scale for the severity of dog bites and was unwilling to discuss
the difference between a deep bite and tearing from a person pulling away. Appellant
acknowledged that jumping into a dog fight with one’s hands is not the best approach,
and recommended using a big stick or high-powered hose.
{¶ 7} At the conclusion of the hearing, the magistrate concluded that appellant’s
designation of Arkham as a dangerous animal was improper after one isolated incident in
which appellant failed to show Arkham was not provoked. In making this decision, the
magistrate considered the circumstances surrounding the bites, Arkham’s lack of a
history of violence, and the provocative actions of those who inserted themselves into the
3. dog fight. After the magistrate issued findings of fact and conclusions of law, the trial
court adopted the magistrate’s decision. Appellant then filed the instant timely appeal.
B. Assignment of Error
{¶ 8} On appeal, the appellant assigns the following error for our review:
1) The Trial Court Erred in Granting Petitioner’s Appeal Rescinding
the Dangerous Dog Classification as Going Against the Manifest weight of
the Evidence.
II. Analysis
A. Provocation
{¶ 9} In its sole assignment of error, appellant argues that the trial court’s decision
to rescind the dangerous dog designation was against the manifest weight of the evidence.
On appeal, we review the trial court’s judgment under a manifest-
weight standard. Henry Cty. Dog Warden v. Henry Cty. Humane Soc’y,
2016-Ohio-7541, 64 N.E.3d 1076, ¶ 13 (3d Dist.). When reviewing a claim
that a judgment is against the manifest weight of the evidence, we must
weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether the trier of fact clearly lost its way in
resolving evidentiary conflicts so as to create such a manifest miscarriage
of justice that the judgment must be reversed and a new trial ordered. State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In doing so,
we must be mindful that “‘the trial judge is best able to view the witnesses
4. and observe their demeanor, gestures and voice inflections and use these
observations in weighing the credibility of the proffered testimony.’”
Henry Cty. Dog Warden at ¶ 16, quoting Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Where evidence
is susceptible of more than one construction, we must interpret it in a
manner most favorable to sustaining the verdict and judgment. (Citations
omitted.) Id. Ali v. Lucas Cty. Dog Warden, 6th Dist. No. L-16-1274,
2017-Ohio-2809, 91 N.E.3d 68, ¶ 10.
{¶ 10} Under R.C. 955.11(1)(a)(i), dangerous dog is defined, in relevant part, as a
dog that, without provocation, “[c]aused injury, other than killing or serious injury, to any
person.” The term “without provocation” means “that a dog was not teased, tormented,
or abused by a person, or that the dog was not coming to the aid or the defense of a
person who was not engaged in illegal or criminal activity and who was not using the dog
as a means of carrying out such activity.” R.C. 955.11(A)(7).
The terms “teasing,” “tormenting,” and “abusing” are defined for
purposes of R.C. 955.28(B), Ohio’s dog-bite statute, and are set forth in
1 Ohio Jury Instructions 409.03, Section 5. “Teasing” means “to annoy or
to trouble or worry persistently, to be troublesome or to pester.”
“Tormenting” is “conduct which provokes a greater annoyance and implies
some torture or pain,” and “[a]busing” is “mistreatment which includes
some physical injury or pain to the animal.” Ali at ¶ 12.
5. {¶ 11} In his decision in this case, the magistrate concluded that appellant had not
established that Arkham bit E.M. and S.M. without provocation. In coming to this
conclusion, the magistrate relied on the Ninth District’s decision in Pflaum v. Summit
Cty. Animal Control, 2017-Ohio-4166, 92 N.E.3d 132 (9th Dist.).
{¶ 12} In Pflaum, the trial court found that a person intervening in a dog fight was
not tormenting a dog when they pulled on his collar and hit the dog, because they had
noble intentions of saving the dog that was not the aggressor. Id. at ¶ 10 and 17. On
appeal, the Ninth District rejected this finding, holding instead that the question of
whether a person tormented a dog does not necessarily pivot on whether the person acted
with a malicious intent. Id. at ¶ 17. The court went on to highlight the lack of evidence
demonstrating that the dog would have bitten the victim if she had not struck the dog and
pulled on its collar. Id. Consequently, the court rejected the trial court’s conclusion that
the dog acted without provocation when it bit the victim. Id.
{¶ 13} Like the argument advanced by Animal Control in Pflaum, appellant
contends that a dog cannot be provoked by an individual that intervenes in a dog fight
unless the individual has malicious intent in doing so. This argument was rejected in
Pflaum and is unavailing here. See also Pulley v. Malek, 25 Ohio St.3d 95, 95-96, 495
N.E.2d 402 (1986) (“[T]here is nothing in R.C. 955.28 which requires a defendant in a
dog bite case to prove malicious intent on the part of the plaintiff in order to escape
liability. * * * [J]urors could reasonably conclude that a well-intentioned neighbor did, in
6. fact, torment a dog for the purposes of R.C. 955.28 when the neighbor picked up the
injured dog after it had been struck by a car.”).
{¶ 14} Here, S.M. and E.M. were only bitten after attempting to pull Arkham
away from Mookie, the aggressor, who was biting Arkham in the face at the time.
Further, S.M. was pulling on Arkham’s ears at the time he was bitten. It is also notable
that unlike the dog in Pflaum, Arkham was not the aggressor. Arkham was under attack
when S.M. and E.M. interjected themselves into the dog fight. Undoubtedly, S.M. and
E.M.’s actions represent conduct that provoke annoyance and generate great pain, thereby
meeting the definition of torment and supporting the trial court’s determination that
appellant failed to meet its burden of showing with clear and convincing evidence that
Arkham acted without provocation.
{¶ 15} In light of appellant’s failure to establish that Arkham was unprovoked
when he bit S.M. and E.M., we find that the trial court’s decision rejecting appellant’s
classification of Arkham as a dangerous dog was not against the manifest weight of
evidence. Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 16} In light of the foregoing, the judgment of the Toledo Municipal Court,
Small Claims Division, is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
7. Coykendall v. Lucas Cty. Dog Warden C.A. No. L-17-1253
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.