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Superior Court of New Jersey, Chancery Division

Arguello v. Behmke
New Jersey
2006 WL 205097 (N.J.Super.Ch.,2006) (not reported in A.2d)

Case Details
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Summary:   The plaintiff left her dog, Chopper, at an animal shelter in the wake of Hurricane Katrina with an agreement that she would pick Chopper up several weeks later. The animal shelter placed the dog up for adoption before the expiration of the agreed upon time and the plaintiff sued to replevy the dog. The court found that because of the bailment contract the animal shelter had no ability to transfer ownership of Chopper to his new owner and ordered his return to the plaintiff. The court also found that plaintiff met her burden of proving that the dog was in fact Chopper.

Judge WILLIAMS delivered the opinion of the court.


Opinion of the Court:

I. Background

[*1] For those individuals who may never have owned a pet, in particular a dog, you may not understand the importance of the court's decision. Having had many pets and dogs my entire life, I do understand why both sides of this matter argue their cause vehemently.

Of course, I have read and considered both the law and facts submitted by both sides and will give you my analysis of that and the reasons for my opinion in written form and posted on the internet. However, I also thought it appropriate to say something to the parties to let them know I truly appreciate their plight. I found a quote from Henry David Thoreau that seemed to capture the heart of the struggle. He said, “It often happens that a man is more humanly related to a cat or dog than any human being.”

With this in mind, the court understands the facts to be as follows:

Annabelle Arguello (hereinafter “Plaintiff”) resides in Kenner, Louisiana with her two beagles and her Great Dane Chopper. On August 29, 2005, Plaintiff was forced to immediately evacuate her home and temporarily relocated to Houston, Texas due to the arrival of Hurricane Katrina which the court can judicially notice was a storm of extraordinary strength which caused horrific devastation to the Louisiana area. Plaintiff could not fit her dogs into the car because it was filled with people evacuating the area. Plaintiff had no choice but to leave her dogs behind with plenty of food and water. Approximately, one week after Katrina hit, Plaintiff returned home to collect her pets and move them to Lamar-Dixon, a temporary animal shelter in Prairieville, Louisiana.

On September 7, 2005 Plaintiff dropped off her dogs at Lamar-Dixon Shelter and filled out the necessary paperwork. On September 20, 2005, Plaintiff received a phone call from a Lamar-Dixon volunteer at her sister's home in Houston, Texas regarding Chopper. The volunteer stated that Lamar-Dixon was having a difficult time keeping Chopper from wandering around the facility. Plaintiff said that she hoped to return to pick up Chopper in two weeks. The Lamar-Dixon volunteer agreed to hold on to Chopper and said that the shelter would contact Plaintiff if they could not house the dog any longer.

Less than two weeks later Plaintiff arrived at Lamar-Dixon to pick up her dogs. Plaintiff was unable to locate any of her dogs. However, Lamar-Dixon was able to locate her dogs through their computer tracking system. According to the computer, Chopper was still being held at Lamar-Dixon. Plaintiff's two beagles were at the Louisiana Society for the Prevention of Cruelty to Animals (hereinafter “LASPCA”).

Plaintiff recovered her two beagles. However, despite numerous searches at Lamar-Dixon, she was unable to locate Chopper. LAPSCA spent several weeks assisting Plaintiff in the search for Chopper, but to no avail. Plaintiff was unable to search for Chopper online because all of the cable and Internet access in her area was out of service in fact lacked electricity due to Hurricane Katrina.

[*2] On November 10, 2005, the Humane Society of the United States (hereinafter “HSUS”) began to assist Plaintiff in locating Chopper. HSUS located Chopper through People for Animals in Hillside, New Jersey, which ultimately tracked Chopper to Pamela Behmke (hereinafter “Defendant”). People for Animals sheltered Chopper to ease the burden on Lamar-Dixon, which had an overabundance of animals because of the extreme devastation caused by Hurricane Katrina.

Plaintiff attempted to retrieve Chopper from Defendant. However, Defendant refused to return Chopper. Plaintiff instituted this Order to Show Cause and writ of replevin for the return of her dog.

II. Plaintiff's-Position

Chopper is considered a chattel under the law, but is also the pet of a grieved owner who has been denied possession of a companion animal by Defendant. It is clear that Plaintiff never intended to abandon Chopper or give up ownership. Plaintiff signed a bailment agreement with Lamar-Dixon to hold on to Chopper until Plaintiff could return to her home. In order for the possessor of the chattel to divest the true owner of title, the chattel would have had to either have been abandoned, or the demand for possession by the true owner had to have been made after the expiration of the six year statute of limitations.

By no fault of Plaintiff, the whereabouts of Chopper were undetermined before the expiration of the October 15, 2005 deadline set forth in the Memorandum of Understanding between People for Animals and HSUS/ASPCA. Defendant does not have the right to keep Chopper as Plaintiff is the true owner.

Plaintiff has shown that she is entitled to exclusive possession of Chopper and that her demand for his return has been refused. Therefore, this Court should grant Plaintiff's order to show cause for a writ of replevin.

III. Defendant's-Opponent's Position

Plaintiff signed an animal intake form with Lamar-Dixon, which required her to claim Chopper within fifteen days. After that time period, Lamar-Dixon had the legal option of adopting Chopper to Defendant. People for Animals entered into an agreement with HSUS and LASPCA which set a deadline of October 15, 2005 to reclaim Chopper. On October 18, 2005 People for Animals neutered Chopper. Defendant adopted the dog on October 23, 2005.

Pursuant to the intake form Lamar-Dixon was permitted to put Chopper up for adoption on September 22, 2005 if Plaintiff failed to claim the dog. Plaintiff failed to make a request to retrieve Chopper within the allotted time period. Chopper was placed on petfinder.com and Plaintiff could have called HSUS to find out the location of the dog.

Moreover, Plaintiff failed to demonstrate that the dog is Chopper. People for Animals advised Defendant that the dog's name is Pluto. Many animals were given the same identification number. Therefore, this Court should deny Plaintiff's order to show cause for replevin and dismiss the lawsuit.

III. Decision

[*3] Let me first say as I have in the past in Chancery, I am faced with a situation where both sides did nothing wrong. Actions for replevin are typically filed in the Law Division. However, the Chancery Division “has jurisdiction to enforce the restitution or delivery of a specific chattel which has a peculiar artificial value and for which, therefore, adequate compensation cannot be obtained at law.” Burr v. Bloomsberg, 101 N.J. Eq. 615 (Ch. Div.1927). Here, Plaintiff seeks the return of her Great Dane Chopper. This Court takes judicial notice of the fact that very few possessions, if any, have more sentimental and therefore peculiar artificial value than a pet, which also serves as a companion to its owner. Therefore, this equitable replevin action has been properly filed in the Chancery Division. R. 4:61-1 states in relevant part:

A writ of replevin shall issue only upon court order on motion of a party claiming the right to possession of chattels.... The motion shall be granted only upon the court's finding, based on the moving papers, any opposing affidavits which have been filed, and any testimony ... that there is a probability that final judgment will be rendered in favor of the movant.

N.J.S.A. 2B:50-1 states in relevant part:

A person seeking recovery of goods wrongly held by another may bring an action for replevin in the Superior Court. If the person establishes the cause of action, the court shall enter an order granting possession.

N.J.S.A. 2A:14-1 states in relevant part:

Every action at law for ... replevin of goods or chattels ... shall be commenced within 6 years next after the cause of any such action shall have accrued.

Therefore, Plaintiff must show that there is a probability that she will be declared Chopper's legitimate owner. N.J.S.A. 2C:20-1 states in relevant part:

“Property” means anything of value, including ... captured or domestic animals ... “Domestic companion animal” means any animal commonly referred to as a pet or one that has been bought, bred, raised or otherwise acquired, in accordance with local ordinances and State and federal law for the primary purpose of providing companionship to the owner, rather than for business or agricultural purposes.

Moreover, pursuant to Louisiana law domestic animals, even if lost, are privately owned. See Peloquin v. Calcasieu Parish Police Jury, 367 So.2d 1246 (La.App. 3d Cir.1979). Accordingly, the captor of such animals does not acquire ownership by occupancy. Id; see also La. Civ.Code Ann. Art. 3417. Therefore, Chopper is the property of its owner pursuant to New Jersey and Louisiana Law. N.J.S.A. 46:30C-1 defines abandoned property as “property of which the owner has intentionally given up possession under circumstances evincing intent to give up ownership.” There is no indication that Plaintiff intended to abandon Chopper. The facts are quite to the contrary, Plaintiff took every reasonable step to attempt to track down her dog after Lamar-Dixon failed to deliver it to her when she arrived to pick it up and continued to this day by the filing of this lawsuit. Clearly, such acts defeat any assertion of abandonment.

[*4] A bailment agreement “is created when personal property is delivered by one person into the possession of another person in trust for a specific purpose, under an agreement that the property will be returned to the owner, or accounted for, or kept for the owner to reclaim it, when the purpose is accomplished.” Sgro v. Getty Petroleum Corp., 854 F.Supp. 1164, 1174-75 (D.N.J.1994); see also Cerreta v. Kinney Corp., 50 N.J. Super . 514, 517 (App.Div.1958). A bailment is a type of contract. See Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 311-12 (2002).

Here, Plaintiff's intake agreement with Lamar-Dixon constitutes a bailment contract and states in relevant part:

I hereby acknowledge and agree that the Louisiana SPCA is a temporary shelter for displaced animals in this time of crisis. Owners of displaced animals will have 15 days to contact the LA/SPCA and/or claim their displaced pets; whereupon, at the end of the 15 days, the unclaimed animals will be adopted out or disposed of as is deemed necessary by the LA/SPCA.

In addition to the above provision, Plaintiff made the following handwritten notation on Choppers intake form:

Need temporary housing for approx. 1 mo. Family wants to move back when their home in N.O. area is habitable. Call if shelter closes; dogs will be picked up. (emphasis added).

Plaintiff provided Lamar-Dixon with her sister's phone number in Houston, Texas. Pursuant to the typed clause of the intake agreement, Plaintiff had until September 22, 2005 to contact Lamar-Dixon about her dogs. However, pursuant to Plaintiff's handwritten note, she had until October 7, 2005 to contact Lamar-Dixon. Moreover, Plaintiff specifically instructed Lamar-Dixon to contract her if there was a problem with Chopper, so she could pick him up.

Lamar-Dixon never crossed out Plaintiff's handwritten clauses or otherwise indicated that it rejected those terms. “A contract arises from offer and acceptance, and must be sufficiently definite that the performance to be rendered by each party can be ascertained with reasonable certainty.” Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). “Thus, if parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract.” Id. Moreover, “[w]here an offeree fails to reply to an offer, his silence and inaction operate as an acceptance ... [if] an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.” Id.

Lamar-Dixon accepted the handwritten clauses when it took in Chopper with the intake form. Lamar-Dixon had every opportunity to cross out Plaintiff's handwritten clause instructing the shelter to call her if it could no longer house Chopper, but failed to do so. Moreover, on September 20, 2005, a Lamar-Dixon representative telephoned Plaintiff and promised to hold on to Chopper for at least two weeks. The Lamar-Dixon representative stated that the shelter would contact Plaintiff if they could no longer house the dog. Plaintiff justifiably relied on this oral promise as it was consistent with the contract between the parties. Lamar-Dixon failed to locate Chopper when Plaintiff arrived at the shelter less than two weeks later.

[*5] Defendant relies heavily on the Memorandum of Understanding and Minimum Requirements for Satellite Sheltering of Katrina Animal Evacuees contract between People for Animals and HSUS, which states in relevant part:

Animals must be held at the sheltering facility until September 30, 2005. Animals can be placed in foster homes after September 30, 2005 and must be held in foster homes until October 15, 2005. If an owner comes forward at any time during this time period to reclaim their pet then it must be returned to the owner. ... On October 16th, the unclaimed animals shall become the property of the Satellite Shelter. (emphasis added).

“The usual grounds for rescission [or cancellation of a contract] are fraud, mutual mistake, undue influence, duress, lack of mental capacity, intoxication or inadequacy of consideration.” Feighner v. Sauter, 259 N.J.Super. 583, 590 (App.Div.1992). The Memorandum of Understanding agreement between People for Animals and HSUS was based upon a mutual mistake. “The doctrine of mutual mistake applies when a mistake was mutual in that both parties were laboring under the same misapprehension as to [a] particular, essential fact.” Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 608 (1989). “In evaluating claims of mutual mistake ..., a court necessarily must look beyond the four corners of the contract.” Conforti v. Guliadis, 128 N.J. 318, 327 (1992).

As discussed above, Lamar-Dixon had no right to transfer Chopper before contacting Plaintiff pursuant to the terms of their contract. Plaintiff arrived at Lamar-Dixon to pick up Chopper less than two weeks after a shelter representative assured her that they would hold on to the Great Dane for at least that amount of time. The Memorandum of Understanding should not have been entered into without first contacting Plaintiff. Lamar-Dixon failed to do so. Moreover, the certification of Diane Guillaume from People for animals states that the organization would not have agreed to assist with these animals if the holding period went beyond October 15, 2005. This indicates that People for Animals was unaware that Lamar-Dixon had promised to contact Plaintiff before putting Chopper up for adoption. Therefore, People for Animals and HSUS entered into the Memorandum of Understanding agreement based upon the mutual mistake that they had the right to take Chopper and put him up for adoption without contacting Plaintiff and assuming he was unclaimed. In fact, he was unable to be claimed by his rightful owner as of the dates in the Memo of Understanding. Accordingly, this uses its equitable power to cancel the agreement between HSUS and People for Animals.

Therefore, even if the Memorandum of Understanding agreement was entered into legitimately, Plaintiff attempted to reclaim Chopper in late September before the October 15, 2005 deadline. In late September, Lamar-Dixon incorrectly informed Plaintiff that it still had Chopper. Thereafter, Plaintiff undertook reasonable steps to try to locate her pet. Plaintiff conducted numerous searches at Lamar-Dixon and solicited the help of LAPSCA, who could not locate Chopper. Plaintiff also solicited the help of the Ascension Parish Animal Shelter in Louisiana and Animal Rescue in El Paso, Texas in her search for Chopper. To expect Plaintiff to conduct an online search for Chopper in an area of the country which to date has not fully been restored to its pre-storm condition with areas still lacking in electricity is a preposterous argument.

[*6] Despite Plaintiff's diligent efforts, she was unable to locate Chopper until HSUS tracked the Great Dane to Defendant through People for Animals on November 10, 2005. Clearly, Plaintiff came forward to reclaim Chopper before the October 15, deadline outlined in the Memorandum of Understanding agreement. Plaintiff would have recovered Chopper prior to that deadline if Lamar-Dixon had been able to tell her where her pet was when she showed up at the shelter to retrieve him in late September. Plaintiff's inability to recover Chopper prior to the October 15, 2005 deadline was due to Lamar-Dixon's mistake and through no fault of her own. Therefore, Plaintiff would be able to recover Chopper even if this Court upheld the Memorandum of Understanding agreement.

Defendant claims that Plaintiff has failed to prove that the Great Dane in question is Chopper. As discussed above, R. 4:61-1 requires that Plaintiff demonstrate a probability that final judgment will be rendered in her favor. Nancy Lawson of HSUS certifies that Chopper had a Lamar-Dixon identification number of 0001-1931. Ms. Lawson then searched the HSUS spreadsheets and determined that Chopper was transported to People for Animals. Ms. Lawson physically located People for Animal's transport log and confirmed that the organization took Chopper. Moreover, Ms. Lawson logged on to petfinder.com, which also listed Chopper as being located at the People for Animals Satellite Shelter. Defendant also admits that the Great Dane was listed on petfinder.com.

Defendant argues that the dog did not come with any dog tag or collar other than the one provided by People for Animals and his name was listed as Pluto. Defendant's argument fails to demonstrate that the dog is not Chopper. Moreover, Chopper was moved from Louisiana to New Jersey and was out of Plaintiff's possession for over a month before Defendant adopted the dog. Therefore, there was plenty of time for the collar to be misplaced.

The argument that Lamar-Dixon reused the LA3537 identification number fails because Chopper's identification number was 0001-1931. Ms. Lawson certified that she tracked a dog to Missouri with the tag number LA3537. However, this dog was not Chopper and Ms. Lawson later determined that Datamax had given her the LA3537 number in error. The mix-up occurred because petfinder.com listed the same dog twice in two different records.

Ms. Lawson certifies that no other dog was given Chopper's ID tag of 0001-1931. The closest identification tags are a LA1931, which belongs to a Neopolitan Mastiff that has been reunited with his owner in New Orleans and a BF1931, which belongs to a tan shepherd/husky mix located in an emergency shelter in Tylertown, Mississippi. Clearly, these two dogs are not Plaintiff's Great Dane. The court is satisfied that any confusion regarding Chopper's ID # has been explained by Ms. Lawson.

This Court also finds unpersuasive the assertion that the Great Dane failed to respond when Defendant called the name “Chopper.” There could be many reasons why a dog will not respond to its name. This Court cannot be certain that Defendant called Chopper's name loud enough for the dog to hear her. Moreover, it is possible that Chopper failed to respond because he was tired, untrained or just unfamiliar with the Defendant.

[*7] However, Defendant's adoption agreement lists the Great Dane as being a three-year old male named Pluto. According to Plaintiff, Chopper is approximately eighteen months old. People for Animal's representative Diane Guillaume certifies that on her return to New Jersey much of the paperwork was smudged from the heavy rains of Hurricane Rita. As a result, People for Animals had to re-vaccinate some animals due to the missing documentation in fact they did not have paperwork for Chopper until November. People for Animals did not have Chopper's SPCA documentation until November, so perhaps the Great Dane was given the name “Pluto” and the fictitious age of three years. Neither party has provided this Court with any evidence that the Great Dane in question originally belonged to anyone other than Plaintiff. Moreover, Plaintiff has presented the court with a certification from a Great Dane Breeder that her son purchased a dane from him. Moreover, at oral argument, scars were demonstrated to the Court on Chopper's legs that were clearly visible. This has been argued as an identifying feature by the Plaintiff throughout this case.

The Court must say that, even if it were to find all of the Contracts valid insofar as they allowed for the dog's transport and adoption, they would be invalidated by this court of equity. Even a contract fairly procured must not advance injustice or hardship. Plummer v. Keppler, 26 N.J. Eq. 481 (1975). A decree rendered must operate without injustice or oppression to either Plaintiff or Defendant. Clayton Holding Corp v. Keuffel & Esser Co ., 113 N.J. Super 50, 55 (1971).

One of the well known equitable maxims is that equity will not knowingly become an instrument of injustice. The court is aware that a dog under the law is considered a chattel under the law and has as it must do, analyzed the relevant law in that area.

However, it is important to note that Ms. Lawson of the Humane Society of the U.S. states in her supplemental certification that the timeframe for Plaintiff's search was not unusual. For that very reason, the HSUS, the ASPCA, United Animal Nations, and Best Friends Animal Society requested receiving agencies such as People for Animals extend their holding period until at least November 15, and preferably December 15, 2005. The court understands that due to the extent of the catastrophe, animal shelters perform an important service and cannot hold all the street strays and animals impounded because of violations or abuse and neglect. This is just not comparable to an everyday situation in the wake of a national disaster. This is a court of equity and the equities demand this situation be considered beyond the strict confines of the law and exercise discretion guided by compassion. If this were a lost child, reunited with its parents who searched for it, no one would question the decision of the return.

It is a bittersweet decision the court makes today. On one hand, the court believes it rightfully reunites a woman who has been through a terrible tragedy, the likes of which few other Americans have had the misfortune to experience. Perhaps this court's decision will play a part in helping to rebuild her life.

[*8] However, the court also realizes that the Defendants have become very attached to the dog and unfortunately, today's decision may cause them great sadness. There is no way to reconcile the two effects. The Defendant has performed a kind deed and played an important role in Chopper's life. She should be thanked for helping him when he needed help. I do know that every dog breed has a rescue cite and there is one for great danes. Perhaps the Defendants love and kindness can be showered upon another needy dog. I wish both sides the best of luck.

Accordingly, Plaintiff's order to show cause for a writ of replevin is hereby Granted. Chopper will be returned to the Plaintiff in Louisiana.

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