Butera v. BeeslerButera v. Beesler
Decided: June 30, 2023
Judgment: Affirmed
Gary L. Pasqualone, Curry & Pasqualone, 302 South Broadway, Geneva, OH 44041 (For Plaintiff-Appellee).
J. Jeffrey Holland, Holland & Muirden, 1343 Sharon-Copley Road, P.O. Box 345, Sharon Center, OH 44274 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Abigail Beesler, appeals from the Judgment Entry of the Ashtabula County Court of Common Pleas, granting plaintiff-appellee, Mario Butera’s, replevin action and ordering that a dog, Cinnamon, be returned to Butera. For the following reasons, we affirm the decision of the court below.
{¶2} On May 3, 2021, Butera filed a Complaint in the Ashtabula County Court of Common Pleas against Beesler in which he argued that the two were in a relationship, separated, and Beesler was in possession of his dog, Cinnamon. He requested recovery of possession of Cinnamon. Beesler filed an answer on May 25, 2021.
{¶4} Butera testified that he and Beesler had been in a relationship since August 2017. The two moved in together and Beesler brought her dog, Lila, into the residence. Subsequently, in July 2019, Butera arrived home from work and Beesler “had surprised [him] with a new puppy.” He testified that it was about five weeks before his birthday and the puppy was an unexpected early birthday present. He stated that Beesler expressed it was his gift, did not indicate she had paid for it, and said it was a rescue dog. He named the dog Cinnamon. Butera testified that he had signed authorizations for Cinnamon’s vet appointments and that the couple shared expenses for both dogs.
{¶5} In September 2020, the pair separated and Beesler left the residence. Butera applied for a dog license for Cinnamon that month, after Beesler left the residence. For a period of time, the two traded possession of the dogs on a weekly basis. In December 2020, Beesler stopped responding to Butera’s communications and would not return Cinnamon.
{¶6} Clifford Brummitt, Butera’s co-worker, was present when Butera and Beesler brought Cinnamon into the store where Butera worked. At that time, Butera stated that Cinnamon was an early birthday present. Beesler did not deny that it was a gift. According to Brummitt, Butera took the dog everywhere.
{¶7} Jeff Boyd, Butera’s neighbor, testified that Beesler said she had gotten Butera a dog she rescued. He often saw Butera with Cinnamon, at least once or twice a week.
{¶9} Beesler testified that she did not buy the dog as a gift and never told anyone it was a gift. She stated that she bought Butera a Samsung Smartwatch for his birthday in September 2019.
{¶10} Angelina Ferko, a dog breeder, sold Lila and Cinnamon to Beesler. According to Ferko, Beesler “was ready for another puppy she was buying for herself.” A receipt from the transaction was introduced which stated the date, the amount of $300 paid by Beesler, noted that it was for “Dachie/Poo Puppy,” and was signed by Ferko.
{¶11} Annie Pierce, Beesler’s friend, testified she watched Cinnamon at least three times. Immediately after Beesler purchased Cinnamon, she asked Pierce to watch her because Butera would be working too much and “didn’t want that added responsibility.” Pierce indicated that Beesler purchased Cinnamon after graduating college and it was “a milestone for that point in her life.”
{¶13} On August 31, 2022, Beesler filed Objections to the Magistrate’s Decision, and she later filed a Brief in Support. She argued the magistrate erred in finding Butera was the owner of the dog where there is no evidence of transfer of ownership under
{¶14} The court issued a Judgment Entry on December 29, 2022, finding the objections not well-taken. It determined that substantial credible evidence supported the magistrate’s findings and there were no errors of law in the decision. It affirmed and adopted the magistrate’s decision, granted the replevin action to recover possession of Cinnamon, and ordered Beesler convey Cinnamon to Butera within three days.
{¶15} Beesler timely appeals and raises the following assignments of error:
{¶16} “[1.] The judgment of the Trial Court was based on insufficient evidence and should be reversed.
{¶18} On appeal, Beesler raises challenges to the weight and sufficiency of the evidence supporting the judgment ordering return of Cinnamon to Butera.
{¶19} “[G]enerally an abuse of discretion standard is applied to an appeal from a trial court’s judgment adopting a magistrate’s decision[,] * * * [h]owever, in cases involving the weighing of facts, this court has applied a manifest weight of the evidence standard.” Barnosky v. Barnosky, 11th Dist. Portage No. 2022-P-0008, 2022-Ohio-2928, ¶ 12, citing Koller v. Zellman, 11th Dist. Geauga No. 2018-G-0153, 2018-Ohio-2463, ¶ 31; see Career & Technical Assn. v. Auburn Vocation School Dist. Bd. of Edn., 194 N.E.3d 782, 2022-Ohio-2737, ¶ 85-86 (11th Dist.).
{¶20} “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury [or trier of fact] that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’” (Citation omitted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17 (“the standard set forth in Thompkins also applies in civil cases“). “The [appellate] court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest
{¶21} “The Ohio Supreme Court has affirmed that, even in civil cases, the concepts of sufficiency and manifest weight of the evidence are distinct and retain independent force.” Barnosky, 2022-Ohio-2928, at ¶ 13, citing Eastley at ¶ 17. “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury [or trier of fact] or whether the evidence is legally sufficient to support the * * * verdict as a matter of law.” (Citation omitted.) Thompkins at 386. “Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Id.
{¶22} In her first assignment of error, Beesler argues that the trial court’s judgment finding Butera to be the owner “is not supported by sufficient evidence” because Butera did not receive a transfer of ownership certificate.
{¶23} Here, Butera pursued an action in replevin. “A replevin action provides the means to obtain possession of specific personal property that one has a right to possess” and lies “against one having, at the time the suit is begun, actual or constructive possession and control of the property.” Lacy v. State, 11th Dist. Ashtabula No. 2019-A-0091, 2020-Ohio-3089, ¶ 62. “Replevin does not * * * require an ‘unlawful taking.’ The plaintiff in replevin need only prove that he is entitled to certain property and that the property is in the defendant’s possession.” (Citation omitted.) Gregory v. Martin, 7th Dist. Jefferson No. 15 JE 17, 2016-Ohio-650, ¶ 20. “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 * * *.”
{¶24} Beesler’s sufficiency argument is premised upon the fact that, regardless of other evidence presented of ownership such as who cared for the dog, whether it was a gift, and other facts, the court could not conclude Cinnamon was owned by Butera because there was no certificate of transfer of ownership to him. In support, she cites Eltibi v. Kocsis, 9th Dist. Summit No. 29885, 2021-Ohio-2911, and
{¶25}
Upon the transfer of ownership of any dog, the seller of the dog shall give the buyer a transfer of ownership certificate that shall be signed by the seller. The certificate shall contain the registration number of the dog, the name of the seller, and a brief description of the dog. Blank forms of the certificate may be obtained from the county auditor. A transfer of ownership shall be recorded by the auditor upon presentation of a transfer of ownership certificate that is signed by the former owner of a dog and that is accompanied by a fee of five dollars.
{¶26} Eltibi addressed a situation similar to that present here. In Eltibi, the plaintiff and defendant were involved in a romantic relationship and had adopted a dog from the Humane Society. Plaintiff completed and signed adoption paperwork, including an adoption contract. Testimony was presented that the plaintiff had the idea to get the dog, searched for the dog, and signed the documents, while the defendant named the dog, paid some expenses, and had some vet bills in her name. The court found that the adoption contract established the plaintiff “was the sole owner of [the dog] pursuant to
{¶27} We recognize that, in Eltibi, the court emphasized ownership based on
{¶28} As the court noted in Eltibi, the plaintiff presented evidence of ownership through the adoption contract, which served as a transfer of ownership certificate, and the defendant was required to rebut that presumption. It also observed that the plaintiff was not permitted, under her contractual agreement with the Humane Society, to give the dog to anyone else and was required to maintain ownership or return the dog to the Humane Society. No such facts are present here. While there is no dispute that Beesler initially purchased Cinnamon and became the owner, this did not preclude her from transferring ownership to another individual. Unlike in Eltibi, there was no contractual provision that prohibited her from doing so. The evidence presented relating to whether Cinnamon was a gift could establish ownership in the absence of a contractual provision prohibiting a transfer of ownership.
{¶30} It is noteworthy that
{¶31} It must be emphasized that, in other types of cases, courts have determined ownership without reference to
{¶32} Courts have considered whether a dog was gifted to another for the purposes of determining ownership without consideration of a requirement for a certificate establishing ownership, considering factors such as statements made relating to the gift and where the dogs were residing. See Schneider v. Schneider, 178 Ohio App.3d 264, 2008-Ohio-4495, 897 N.E.2d 706, ¶ 18-20; also Koerner v. Nielsen, 8 N.E.3d 161, 163-164 (Ill.App.2014) (considering statements made by parties regarding donative intent in determining whether the dog was gifted and ownership in a replevin action).
{¶33} Upon consideration, we do not find that the failure of Beesler to provide to Butera a certificate of transfer precluded the court’s consideration of other factors to determine whether Cinnamon was gifted to Butera for the purposes of establishing ownership. Whether the weight of evidence supported that determination will be addressed in the following assignment of error.
{¶34} The first assignment of error is without merit.
{¶35} In her second assignment of error, Beesler argues that the finding that Cinnamon should be returned to Butera was against the weight of the evidence since there was a lack of evidence that she had donative intent to make a gift of Cinnamon to Butera.
{¶36} “An inter vivos gift is an immediate, voluntary, gratuitous, and irrevocable transfer of property by a competent donor to another.” Kaydo v. Kaydo, 11th Dist. Lake No. 2022-L-021, 2022-Ohio-4055, ¶ 46. “The elements of an inter vivos gift are (1) the intent of the donor to make an immediate gift; (2) the delivery of the property to the donee;
{¶37} In support of the determination that Cinnamon was a gift to Butera, the magistrate found Butera gave credible testimony that the dog was purchased as a gift, given that the purchase of the dog was a surprise, Beesler already had her own dog, Butera “became the primary caregiver of Cinnamon,” and Butera named Cinnamon.
{¶38} Beesler takes issue with the finding that the dog being a surprise and there were not prior discussions about purchasing it showed donative intent, contending that there could be other reasons for doing so. While this fact alone may not demonstrate donative intent, it was just one fact that was considered by the court. That the purchase had not been discussed could show intent for a surprise gift, particularly when coupled
{¶39} Beesler also argues that the magistrate was incorrect when finding that Butera was the primary caretaker as the evidence did not support this finding. While it is accurate that the testimony tended to demonstrate that both parties cared for Cinnamon, there was testimony that Butera was seen walking Cinnamon frequently and he took the dog “everywhere,” including to his place of work at times. While it may be accurate that it was not definitively established that he was the “primary” caretaker, we do not find this negates the other evidence regarding whether the dog was a gift. Even if they were equal caretakers, the issue is whether Cinnamon was gifted to Butera. As noted above, there was ample testimony to support the court’s finding that she was.
{¶40} Finally, as to the issue of naming Cinnamon, Beesler argues this was not a relevant consideration, observing that it was not considered by the court in Eltibi, supra. As noted above, the Eltibi case involved a contract which disallowed gifting the dog to another party, regardless of donative intent. Thus, its decision not to consider this fact is not determinative. As noted above, there were a variety of factors to consider in this case
{¶41} The second assignment of error is without merit.
{¶42} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas, granting Butera’s request for replevin, is affirmed. Costs to be taxed against appellant.
JOHN J. EKLUND, P.J.,
EUGENE A. LUCCI, J.,
concur.