[Cite as Licking Cty. Dog Warden v. Sendykar , 2019-Ohio-5187.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

LICKING COUNTY DOG WARDEN : JUDGES: : : Hon. Patricia A. Delane y , P.J. Plaintiff-Appellee : Hon. Crai g R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 2019 CA 00021 : JAMES SENDYKAR : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 19 CVH 00495

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 10, 2019

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM C. HAYES CHRIS BRIGDON LICKING COUNTY PROSECUTOR 123 Stirlin g Wa y Etna, OH 43062 CAROLYN J. CARNES 20 S. Second St., 4th Floo r Newark, OH 43055Licking County, Case No. 2019 CA 00021 2

Delaney, J. {¶1} Defendant-Appellant James Sendykar appeals the April 1, 20 19 judgment entry of the Licking County Municipal Court. Plaintiff-Appellee is the Licking County Dog

Warden.

FACTS AND PROCEDURAL HISTORY {¶2} On February 10, 2019, Defendant-Appellant James Sendykar w as issued a Notice of Dog Designation Status by Plaintiff-Appellee Licking County Dog Warden, which designated Sendykar’s dog as dangerous. Sendykar appealed the d esignation to the Licking County Municipal Court and a bench trial was held on Ap ril 1, 2019. The following

evidence was adduced at the bench trial. {¶3} On February 6, 2019, Joseph Carson, while employed by FedE x, delivered a package to a residence in Hebron, Ohio. The package was addre ssed to Carrie Sendykar, wife of Defendant-Appellant James Sendykar. This was the first time Carson had delivered a package to this residence. To deliver the packa ge to the residence, Carson backed the FedEx truck half-way up the driveway, using h is rear-view camera to guide him, instead of his side mirrors. On the property near th e driveway, Sendykar had posted a sign that read, “DOG ON PREMISES CAUTION INVISIBLE DOG FENCE UPS/FEDEX DROP OFF →.” The arrow on the sign pointed to the gro und. The photograph of the sign was admitted as evidence. Carson testifi ed he did not see the sign as he backed into the driveway. {¶4} Carson parked the truck in the driveway, picked up the pac kage to be delivered, and opened the back door of the truck. When he opene d the back door of the truck, Carson saw a dog on the property of the residence. The d og, named Garth,Licking County, Case No. 2019 CA 00021 3

belonged to Sendykar. Carson exited the truck, took six steps, and looked down at the package in his hand to scan the package. As he was scanning the package, Garth bit Carson on the front of his left thigh. Simultaneously, the pack age scanner showed “dog bite” because a dog had previously injured another FedEx employ ee at that address. {¶5} After Garth bit Carson, Carson called his manager who inst ructed Carson to go to an urgent care facility. Carson put the package back o n the truck. Carson’s leg wound was treated at the urgent c are facility. It did not requi re stitches. Carson, who had experience with dogs, testified the wound was a dog bite, not a dog scratch. A photograph

of Carson’s wound at the time of the incident was introduced as evidence. It showed two wounds, close together. The skin was broken and bloodied. {¶6} Carson contacted the Licking County Dog Warden to report t he incident and Licking County Deputy Dog Warden Tyler Moore made contact with Carson at the urgent care facility. Deputy Moore took C arson’s information and then drove to the residence to speak with Sendykar. Deputy Moore had previous knowledge of Gar th stemming from an alleged dog bite that occurred to a FedEx driver on October 3, 2018. When Deputy Moore arrived at the residence, he observed Garth come out of the gar age from a partially open garage door. The residence’s property had an invisible fence. D eputy Moore stayed in his truck because Garth was barking and growling. Deputy Moore call ed Sendykar, who said he was out of town and his wife, Carrie Sendykar was not at hom e. Sendykar’s son was at home and Sendykar contacted his son to tell him to come out and secure Garth. Deputy Moore told Sendykar’s son about the incident and issued a quara ntine notice. {¶7} At trial, Sendykar testified that Garth was a not a danger ous dog. He had never observed Garth being aggressive and he was gentle around children. He arguedLicking County, Case No. 2019 CA 00021 4

the wound suffered by Carson was a scratch from Garth’s claws, not a bite. Sendykar contended the incident would not have happened if Carson had ob eyed the sign Sendykar posted cautioning delivery persons about the presence of a dog on the property and where to drop off packages. Sendykar testified the sign was cle arly visible to a vehicle in the residence’s driveway. Sendykar argued they were not expecti ng a package to be

delivered at the time of the incident. {¶8} At the conclusion of the bench trial, the trial court foun d the Licking County Dog Warden met its burden to demonstrate Garth was a dangerous dog as defined by

R.C. 955.11. It stated the direct and uncontroverted evidence s howed Garth bit Carson and did so without provocation. The trial court memorialized it s verdict by judgment entry filed on April 1, 2019. {¶9} It is from this judgment entry that Sendykar now appeals.

ASSIGNMENT OF ERROR {¶10} Sendykar raises one Assignment of Error: {¶11} “THE DESIGNATION OF APPELLANT’S DOG AS A ‘DANGEROUS DOG’ PER OHIO REVISED CODE §955.11(1) WAS IN ERROR. THE STATE’S RELI ANCE

UPON TESTIMONY AND THE STATE’S EX HIBITS 4 AND 5 COULD NOT HAVE

CONVINCED A REASONABLE MIND OF GUILT BY CLEAR AND CONVINCING EVIDENCE; AND AFTER DRAWING REASONABLE INFERENCES, THE FINDING AS

A DANGEROUS DOG WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”

ANALYSIS {¶12} In his sole Assignment of Error, Sendykar contends the de signation of Garth as a dangerous dog was against the manifest weight of the evide nce. We disagree.Licking County, Case No. 2019 CA 00021 5

Definition of a Dangerous Dog {¶13} R.C. 955.11(A) defines a “dangerous dog” as, (1)(a) “Dangerous dog” means a dog that, without provocation, a nd subject to division (A)(1)(b) of this section, has done any of the foll owing: (i) Caused injury, other than k illing or serious injury, to any person; (ii) Killed another dog; (iii) Been the subject of a third or subsequent violation of di vision (C) of

section 955.22 of the Revised Code. R.C. 955.11(A)(1)(b) states a dangerous dog “* * * does not inc lude a police dog that has caused injury, other than killing or serious injury, to any per son or has killed another dog while the police dog is being used to assist one or more law en forcement officers in the performance of their official duties.” {¶14} An owner of a “dangerous dog” must comply with certain re quirements found in R.C. 955.11, R.C. 955.22, and R.C. 955.54, which set f orth, inter alia, procedures relating to confining, tethering, registering, and neutering th e dog, transferring ownership of the dog, and obtaining liability insurance. Spurrier v. Lake Cty. Dog Warden , 11th Dist. Lake No. 2018-L-026, 2018-Ohio-4663, 2018 WL 6041069, ¶ 3. A do g owner who disagrees with the designation of their dog as “dangerous” may request a hearing with the municipal or county court that has territorial jurisdiction over the owner. Id . citing R.C. 955.222(C). At the hearing, the person who designated the dog a “dangerous dog” has the burden of proving, by clear and convincing evidence, that t he dog is “dangerous.” Id

. {¶15} The bulk of Sendykar’s appellate brief argues the evidenc e shows that Carson was a trespasser to Sendykar’s property when Garth injur ed Carson. SendykarLicking County, Case No. 2019 CA 00021 6

posted a sign on his property warning of the dog’s presence and the location where packages were to be dropped off. Carson parked his truck in Sen dykar’s driveway and walked on Sendykar’s property beyond the location marked in the sign. Sendykar contends that because Carson was a trespasser, Garth cannot be designated as a dangerous dog. Under R.C. 955.11(A)(6)(a), a “vicious dog” is d efined as “a dog, that without provocation and subject to division (A)(6)(b) of this s ection, has killed or caused serious injury to any person.” A “vicious dog” does not include “[a] dog that has killed or caused serious injury to any person while that person was commi tting or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer of the dog.” R.C. 955.11(A)(6)(b)(ii). In this case, t he Licking County Dog Warden designated Garth as a “dangerous dog,” not a “vicious do g,” as defined by R.C. 955.11(A); therefore, whether Carson was a trespasser to the pr operty when he was injured by Garth was not relevant to trial court’s determinatio n of whether the Licking County Dog Warden established Garth was a “dangerous dog.” {¶16} Sendykar further relies upon R.C. 955.28(B) to argue he i s not liable to Carson because Carson was a trespasser. R.C. 955.28(B) states, The owner, keeper, or harborer of a dog is liable in damages fo r 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 crimin al trespass

or another criminal offense other than a minor misdemeanor on t he property of the owner, keeper, or harborer, or was committing or attempt ing to commit a criminal offense other than a minor misdemeanor agains t anyLicking County, Case No. 2019 CA 00021 7

person, or was teasing, tormenting, or abusing the dog on the o wner's, keeper's, or harborer's property. Additionally, the owner, keep er, or harborer of a dog is liable in damages for any injury, death, o r 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 ha rborer solely for the purpose o f engaging in door-to-door sales or other soli citations 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. R.C. 955.28 provides a statutory cause of action for injuries s ustained as a result of another person’s dog. Graham v. Shamrock Stables , 2014-Ohio-3977, 19 N.E.3d 578, ¶ 8 (9th Dist.). The statute has no application in this matter fo r the designation of a dangerous dog by the Licking County Dog Warden.

Standard of Review {¶17} This Court has previously held that because R.C. 955.11(A )(1)(a) essentially calls for a de novo hearing by a municipal court or county court upon request by a dog owner, the appellate court's standard of review on a m anifest weight challenge in the present context is the same as in a civil case. Spangler v. Stark Cty. Dog Warden , 2013-Ohio-4774, 999 N.E.2d 1247, ¶ 18 (5th Dist.). In Eastley v. Volkman , 132 Ohio St.3dLicking County, Case No. 2019 CA 00021 8

328, 2012-Ohio-2179, 972 N.E.2d 517, the Ohio Supreme Court cla rified the standard of review appellate courts should apply when assessing the manifes t weight of the evidence in a civil case. The Ohio Supreme Court held the standard of re view for manifest weight

of the evidence for criminal cases stated in State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), is also applicable in civil cases. Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. A reviewing court is to ex amine the entire record and determine “whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered.” Id .; see also Sheet Metal Workers Local Union No. 33

v. Sutton , 5th Dist. Stark No. 2011 CA 00262, 2012-Ohio-3549. “In a civi l case, in which the burden of persuasion is only by a preponderance of the evid ence, rather than beyond a reasonable doubt, evidence must still exist on each element ( sufficiency) and the evidence on each element must satisfy the burden of persuasion (weight).” Eastley v.

Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. {¶18} As an appellate court, we are not fact finders; we neithe r weigh the evidence nor judge the credibility of witnesses. Markel v. Wright , 5th Dist. Coshocton No. 2013CA0004, 2013-Ohio-5274. Further, “an appellate court should not substitute its judgment for that of the trial court when there exists * * * co mpetent and credible evidence supporting the findings of fact and conclusion of law.” Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). The underlying ratio nale for giving deference to the findings of the trial court rests with the knowledge tha t the trial judge is best able to view the witnesses and observe their demeanor, gestures, and vo ice inflections, and use these observations in weighing the credibility of the proffered testimony. Id . Accordingly,Licking County, Case No. 2019 CA 00021 9

a trial court may believe all, part, or none of the testimony o f any witness who appears

before it. Rogers v. Hill , 124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist. 1998). {¶19} The Ohio Supreme Court has defined “clear and convincing evidence” as “[t]he measure or deg ree 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 establi shed. It is intermediate, being more than a mere preponderance, but not to the extent of such c ertainty as required beyond a reasonable doubt as in criminal cases. It does not mea n clear and unequivocal.” Spangler v. Stark Cty. Dog Warden , 2013-Ohio-4774, 999 N.E.2d 1247, ¶ 17 (5th Dist.) citing In re Estate of Haynes , 25 Ohio St.3d 101, 103–104, 495 N.E.2d 23 (1986).

Determination of a Dangerous Dog {¶20} In this case, we do not find the trial court lost its way or created a manifest miscarriage of justice in affirming the designation by the Lick ing County Dog Warden that Garth was a dangerous dog. R.C. 955.11(A)(1)(a)(i) states that a dangerous dog is a dog that causes an injury to any person without provocation. R.C. 9 55.11(A)(7) defines “without provocation” as a dog that “was not teased, tormented, or abused by a person, or that the dog was not coming to the aid or the defense of a p erson who was not engaged in illegal or criminal activity and who was not using the dog a s a means of carrying out such activity.” There is no dispute of fact that on February 6, 2019, Garth injured Carson. Carson testified Garth bit him on the left thigh. The photograp h presented at trial showed two wounds on Carson’s thigh; the skin was broken and bloodied. The next element is whether Garth was provoked when he injured Carson. There was no evidence presented at the bench trial that Garth was teased, tormented, or abused at the time Garth injured Carson, nor was there evidence presented that Garth was coming to the aid or defenseLicking County, Case No. 2019 CA 00021 10

of Sendykar or a member of his family at the time Garth injured Carson. The evidence showed that no one was home when Carson delivered the package t o the residence. {¶21} Garth’s designation as a dangerous dog under R.C. 955.11( A)(1)(a)(i) was not against the manifest weight of the evidence. {¶22} Sendykar’s sole Assignment of Error is overruled.

CONCLUSION {¶23} The judgment of the Licking County Municipal Court is aff irmed. By: Delaney, J., Baldwin, P.J. and Wise, Earle, J., concur.