[Cite as Wood Cty. Dog Warden v. Lathrop, 2022-Ohio-480.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

WOOD COUNTY 

Ashley Lathrop Court of Appeals No. WD-21-059 

 

 Appellee Trial Court No. CVH1901424 

 

v. 

 

Wood County Dog Warden DECISION AND JUDGMENT

Appellant Decided: February 18, 2022 

* * * * * 

 James A. Grandowicz, for appellee. 

 Paul A. Dobson, Wood County Prosecuting Attorney, and 

 David T. Harold, Chief Assistant Prosecuting Attorney, and 

 Joyce C. Nowak, Assistant Prosecuting Attorney, for appellant.

* * * * * 

PIETRYKOWSKI, J. 

{¶ 1} Following our July 23, 2021 reversal and remand, Lathrop v. Wood Cty. Dog 

Warden, 6th Dist. Wood No. WD-20-059, 2021-Ohio-2556, this matter is before the 
2. 

court on appeal of the August 12, 2021 judgment of the Perrysburg Municipal Court 

which again denied appellant Wood County Dog Warden’s (“the warden”) objections to 

the magistrate’s decision reversing the designation of appellee Ashley Lathrop’s dog as a 

dangerous dog. Because we find that the judgment was against the weight of the 

evidence, we reverse. 

I. Facts and Procedural Background 

{¶ 2} The relevant facts mirror those set forth in our July 23, 2021 decision and 

judgment. On October 20, 2018, Paulette Eckermann was gardening in the back of her 

mother-in-law’s property when Zeus, a German Shepherd Dog owned by abutting 

landowner, Ashley Lathrop, crossed the near dry creek bed dividing the properties, 

approached within three feet of her, and began barking and snarling. Eventually the dog 

left the property. 

{¶ 3} After discussing the encounter with her husband and elderly mother-in-law 

(neither of whom had witnessed the incident), she and her husband, Thomas, decided to 

go to the Lathrops’ house to inform them that their dog had been on the Eckermann’s 

property and had frightened Paulette. 

{¶ 4} Upon arrival, Zeus was in the driveway and immediately began barking at 

their pick-up truck. Mr. Eckermann did not exit the vehicle until the dog retreated. After 

exiting the vehicle and the approach of Mr. Lathrop and Zeus, Zeus lunged and snapped 

at Eckermann multiple times eventually biting him in the right leg. After the bite, he 
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stood in the driveway and continued to speak with Mr. Lathrop. Later, Eckermann 

sought medical treatment for the minor puncture wound. 

{¶ 5} On October 5, 2019,1

 Lathrop was served with a notice that her dog had been 

designated a “dangerous dog” under R.C. 955.11(A)(1)(a). The designation required 

Lathrop to, inter alia, secure the dog on the premises and obtain liability insurance. The 

notice provided that the owner could contest the designation within ten days of receipt of 

the notice. 

{¶ 6} On October 11, 2019, Lathrop filed a letter with the Perrysburg Municipal 

Court contesting the designation and requesting a hearing on the matter. On January 27, 

2020, Lathrop filed a motion in limine requesting that the court prevent the warden from 

introducing evidence of a 2008 failure to confine minor misdemeanor and any claims, 

other than the date of the bite incident, that Zeus was running loose off the Lathrops’ 

property. The warden also filed a motion in limine requesting that the court exclude the 

testimony of disclosed plaintiff’s witness, Lake Township officer Kelly Clark, 

questioning her credentials as an expert on provocation and whether such testimony 

would be considered relevant. The warden requested a hearing on the issue. 

{¶ 7} The hearing was held on February 13, 2020. Prior to the start of the 

testimony the parties presented arguments regarding the warden’s motion in limine; the 

1

 During the proceedings, evidence was presented that the delay between the incident and 

the warden’s designation was due, in part, to the inability to secure the Eckermann’s 

statements. 
4. 

court ultimately excluded the testimony of Officer Clark. Paulette and Thomas 

Eckermann, the warden, and a deputy dog warden testified. Notably, the Lathrops’ 

surveillance camera captured the bite incident and the video was viewed, testified to, and 

admitted into evidence. 

{¶ 8} On February 19, 2020, the magistrate issued his decision vacating the 

warden’s dangerous dog designation as to Zeus. The magistrate concluded that the 

warden “failed to meet its burden to demonstrate by clear and convincing evidence that 

the dog caused injury without provocation.” The court noted that “the argument that the 

dog bit Mr. Eckermann because it was teased has some degree of persuasiveness.” 

Approximately three hours later the trial court issued its judgment entry stating in full: 

This matter is before the court on the Magistrate’s Decision issued 

February 19, 2020. Upon review of the case and decision, the Court adopts 

the magistrate’s recommendation and decision as the judgment of this 

court, and vacates the Wood County Dog Warden’s determination that 

petitioner’s dog is a “dangerous dog” pursuant to R.C. 955.11(A)(1)(a), et. 

seq. 

{¶ 9} On March 4, 2020, the warden filed its objections to the magistrate’s 

decision and a hearing was held on July 8, 2020. The warden argued that the magistrate 

adopted and applied an incorrect definition of provocation as it relates to the dangerous 
5. 

dog statute and that, regardless, the evidence presented during the hearing clearly 

demonstrated that Mr. Eckermann did not provoke the subject dog. 

{¶ 10} Denying the warden’s objections, the court concluded that the magistrate 

properly limited the evidence, interpreted the evidence, and that the definition of 

provocation employed by the magistrate did not negatively impact the decision as 

asserted. The court agreed that the magistrate improperly took judicial notice of the 

character and nature of dogs but concluded that that the error did not impact the 

judgment. Specifically, as to provocation, the court noted that the warden’s objection to 

the magistrate’s interpretation of the security video and differing views on whether it 

demonstrated that Eckermann teased or worried the dog by making a fist, was not 

sufficient to say that the magistrate lost its way or improperly determined a factual issue. 

{¶ 11} The warden commenced an appeal with this court arguing, inter alia, that 

when ruling on its objections, the trial court used a deferential, rather than a de novo, 

standard of review. We agreed and remanded the matter. Lathrop, 6th Dist. Wood No. 

WD-20-059, 2021-Ohio-2556. 

{¶ 12} On remand the court again rejected the warden’s objections. Relevantly, as 

to the interplay between Zeus and Eckermann, the court noted: 

It appears to be the position that the video shows that Mr. 

Eckermann did not provoke the subject dog. This Court, having reviewed 

the testimony and the video is not prepared to accept that position. The 
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Dog Warden has not met their burden to show that the actions of Mr. 

Eckermann did not provoke the subject dog. 

{¶ 13} This appeal followed. 

II. Assignments of Error 

Assignment of Error I: On remand, the trial court erred and created 

reversible error when it applied the wrong standard of review to its review 

of the magistrate’s decision. 

Assignment of Error II: Both the magistrate and trial court erred and 

created reversible error when they improperly excluded testimony under 

Evid.R. 404(B). 

Assignment of Error III: Both the magistrate and the trial court erred 

and created reversible error when they improperly excluded testimony 

under Evid.R. 702. 

Assignment of Error IV: Both the magistrate and the trial court erred 

and created reversible error when they found that the Wood County Dog 

Warden did not satisfy its burden at the dangerous dog designation hearing 

by sufficient evidence. 

Assignment of Error V: Both the magistrate and the trial court erred 

and committed reversible error because their decisions went against the 

manifest weight of the evidence. 
7. 

Assignment of Error VI: Cumulative error by both the magistrate

and the trial court require reversal of the judgments in this case. 

III. Discussion 

{¶ 14} The warden’s fourth and fifth assignments of error, challenging the 

sufficiency and weight of the evidence, are dispositive and related and will be jointly 

addressed. Relevant here, R.C. 955.11(A)(1) defines a “dangerous dog” as follows: 

(a) “Dangerous dog” means a dog that, without provocation, and 

subject to division (A)(1)(b) of this section, has done any of the following: 

(i) Caused injury, other than killing or serious injury, to any person; 

(ii) Killed another dog; 

(iii) Been the subject of a third or subsequent violation of division 

(C) of section 955.22 of the Revised Code. 

{¶ 15} Appeal of a dangerous dog designation is provided in R.C. 955.222(C): 

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, 
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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. 

{¶ 16} As quoted above, in order to designate a dog as “dangerous” the warden 

must prove by clear and convincing evidence its dangerousness. “Clear and convincing 

evidence” is defined as that degree of proof which establishes in the mind of the trier of 

fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford, 161 

Ohio St. 469, 120 N.E.2d 118 (1954). This standard “‘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 unequivocal.’” Henry 

Cty. Dog Warden v. Henry Cty. Humane Soc., 2016-Ohio-7541, 64 N.E.3d 1076, ¶ 15 (3d 

Dist.), quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986). 

{¶ 17} Because the statute essentially calls for a de novo hearing by a municipal 

court or county court upon a dog owner’s request, 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. Spangler v. Stark Cty. Dog Warden, 2013-Ohio-4774, 999 N.E.2d 1247, ¶ 18 (5th 

Dist.). Thus, in determining whether a judgment is supported by the weight of the 

evidence a reviewing court 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 
9. 

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). 

{¶ 18} In civil cases, as in criminal cases, the sufficiency of the evidence is 

quantitatively and qualitatively different from the weight of the evidence. Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, paragraph two of the 

syllabus. “Sufficiency” is “‘a term of art meaning that legal standard which is applied to 

determine whether * * * the evidence is legally sufficient to support the [judgment] as a 

matter of law.’” Id. at ¶ 11, quoting Thompkins at 386. 

{¶ 19} “‘Our standard of reviewing the sufficiency of the evidence in a civil case 

is whether, after viewing the evidence in a light most favorable to the prevailing party, 

the judgment is supported by competent and credible evidence.’” Henry Cty. Dog 

Warden, 2016-Ohio-7541, 64 N.E.3d 1076, at ¶ 13, quoting Edwards v. Knox Cty. Dog 

Warden, 5th Dist. Knox Nos. 14CA15, 14CA17, 2015-Ohio-1320, ¶ 9. 

{¶ 20} The parties agree that Mr. Eckermann was injured by Zeus; the disputed 

element under the statute is whether Zeus’ attack on Eckermann was provoked. 

Reviewing the statutory definition of provocation, this court has observed: 

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.” 
10. 

“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.” These definitions were first 

recognized in Ramsey v. King, 14 Ohio App.3d 138, 470 N.E.2d 241 (12th 

Dist.1984), and have since been applied by other Ohio courts. See Quellos 

v. Quellos, 96 Ohio App.3d 31, 40, 643 N.E.2d 1173 (8th Dist.1994); 

Olmstead v. Forsthoefel, 3d Dist. Mercer No. 10-12-08, 2013-Ohio-220, 

2013 WL 312369, ¶ 15. 

Ali v. Lucas Cty. Dog Warden, 2017-Ohio-2809, 91 N.E.3d 68, ¶ 12 (6th Dist.). 

{¶ 21} At the appeal hearing before the magistrate, Thomas Eckermann testified 

that after parking in the Lathrops’ driveway he waited to exit the vehicle because Zeus 

was out front and barking and “not looking real friendly.” Once Mr. Lathrop came out to 

the driveway, he exited the vehicle and began to walk around the front of the truck to 

speak with him. Eckermann stated his belief that Mr. Lathrop would be able to control 

Zeus. 

{¶ 22} Eckermann then explained that when he walked toward Mr. Lathrop to 

speak with him, Zeus was barking and snarling. The dog then lunged toward him and he 

pulled his hands up in order to avoid being bitten. Eckermann stated that Zeus came at 

him a second time; he again pulled his hands up to avoid being bitten. Eckermann 

admitted that during Zeus’ third bite attempt he pulled his hand back into a fist but denied 
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either teasing or tormenting the dog or threating the dog or Mr. Lathrop. Following the 

third attempt, Zeus landed a bite to his right leg. Eckermann stated that the dog was 

aggressive for the duration of the encounter and that he had been forced up against the 

front of his truck and could not get any further away. 

{¶ 23} This court has carefully reviewed the video and the relevant testimony 

presented at trial and can only conclude that the court lost its way in finding that the 

warden did not provide clear and convincing evidence that the bite was unprovoked. The 

video begins with Zeus barking at Eckermann’s vehicle, which is parked in his owner’s 

driveway. After approximately 30 seconds of continuous barking, Zeus retreats into the 

garage and Eckermann exits his vehicle. Zeus’ owner then appears, walking out of the 

garage with Zeus. The dog begins barking again and quickly runs toward Eckermann. 

At this point, Eckermann is standing in front of his vehicle, with both arms down at his 

side. Zeus runs up to Eckermann, while barking, and attempts to bite his left hand. 

Eckermann pulls his left hand up and away from Zeus to avoid being bitten. Zeus jumps 

backwards, continues barking, and then lunges toward him again. Eckermann does not 

move but raises his right hand in a fist—once—to deter Zeus from coming near him. 

Zeus retreats and continues barking while circling the immediate area for approximately 

five seconds. He then approaches Mr. Eckermann again and lunges toward him. At that 

point Eckermann raises both arms, with open palms, in an attempt to avoid Zeus. The 

dog’s owner then steps in between Mr. Eckermann and the dog. Zeus stops barking for a 
12. 

few seconds and walks behind his owner, who has begun talking with Mr. Eckermann. 

As soon as Zeus comes around his owner’s left side, he barks once and bites Mr. 

Eckermann on his right leg—while Mr. Eckermann’s hands were down at his side and his 

attention was focused on the conversation with Zeus’ owner. 

{¶ 24} The video clearly demonstrates that Zeus was already in a provoked state 

when Eckermann arrived, and the dog attempted to bite Eckermann prior to either him 

raising his arms or forming a fist with his hand. The dog then persisted, going around the 

back of its owner and biting Eckermann’s right leg. Thus, the court’s finding that the 

parties’ assertions were merely a “difference of opinion” is flawed; this court is of the 

mindset that the evidence presented is not susceptible of more than one interpretation. 

There is no evidence that Eckermann “abused” or “tormented” the dog, nor is there any 

evidence in the video (or anywhere else in the record) to suggest that Eckermann engaged 

in any persistent conduct that could be considered “teasing.” Eckermann raised his fist 

only once, and it is clear from the video that Eckermann’s other body movements were 

nothing more than attempts to get out of the dog’s way and avoid being bitten. 

{¶ 25} Accordingly we find that there was insufficient evidence demonstrating 

that Zeus’ bite was provoked and that the court’s reversal of the dangerous dog 

designation was against the manifest weight of the evidence. Thus, the trial court abused 

its discretion in denying the warden’s objection relative to the magistrate’s determination 
13. 

that it was possible that the bite was provoked. The warden’s third and fourth 

assignments of error are well-taken. 

{¶ 26} Based on our determination that the court erred in reversing the dangerous 

dog designation we find that the warden’s first, second, third, and sixth assignments of 

error are moot and not well-taken. 

IV. Conclusion 

{¶ 27} The August 12, 2021 judgment of the Perrysburg Municipal Court is 

reversed. We reinstate the warden’s dangerous dog designation of appellee’s dog, Zeus, 

and remand the matter for any further proceedings necessitated by this judgment. 

Pursuant to App.R. 24, appellee is ordered to pay the costs of this appeal. 

Judgment reversed. 

 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 
14. 

Ashley Lathrop 

v. Wood County Dog Warden 

Case No. WD-21-059 

Mark L. Pietrykowski, J. ____________________________ 

 JUDGE 

Thomas J. Osowik, J. 

____________________________ 

Christine E. Mayle, 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/.