MEMORANDUM OF DECISION
Introduction
The issue in this case is which of the parties is the owner of a Newfoundland dog named Sage and therefore entitled to its possession.
The operative complaint is a Second Amended Complaint brought in two counts. The first count alleges tortious interference with the plaintiff's contractual rights and the second count seeks a declaratory judgment that she is the owner and entitled to possession of Sage.
The matter was tried to the court and the parties have submitted trial briefs. The plaintiff, simultaneously with her trial brief has filed a withdrawal of her claim for damages, leaving only the remaining claim for a declaratory judgment. Although the plaintiff has not withdrawn her count of tortious interference with her contract rights, it would appear to be moot since the remedy for tortious interference with contractual right would be an award of money damages to compensate her for her losses.
This count of tortious interference can [2] be summarily disproved of in any event.
One of the elements of tortious interference is that the interference be tortious and a second element is an actual ascertainable loss.
The word tortious means that the defendant was guilty of fraud, misrepresentation, intimidation or acted maliciously with an intent to inflict an injury or an evil intent. Hi-Ho Tower, Inc. v. Com-tronics Inc., 255 Conn. 20, 29-30, 761 A.2d 1268 (2000). The evidence would not support such a finding. The Court agrees with the defendant that any interference with the plaintiff's contractual rights was incidental and not done with a malicious intent or a malicious motive. Indeed, the history between the parties had been one of cooperation between dog breeders with the defendant, not long before the issue with Sage arose, helping place a Newfoundland named "Donovan" for the plaintiff. While incorrect on the law, she believed she had an ownership interest. The plaintiff could not prevail on the count of tortious interference.
The matter is appropriately resolved by consideration of the requests for a declaratory judgment with the principal issue being whether the plaintiff repudiated her contract [3] and her obligation to take Sage back when requested by the "co-owner," Georgiana Devine (f.k.a Georgiana Field and Georgina Zimpritch), 1 thereby relinquishing her ownership rights to the dog.
A declaratory judgment may be maintained if:
(1) the party seeking it has an interest, legal or equitable, by reason of . . . uncertainty as to the party's rights or other jural relations.
(2) there is an actual issue in dispute or substantial uncertainly of legal relations which requires settlement between the parties; and
(3) if there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the Court is of the opinion that the claim for declaratory judgment should proceed despite the existence of such alternate procedure.
(Connecticut Practice Book § 17-55.)
This matter meets these conditions. The Court further finds that the only legally interested persons in this matter are the two parties and notice [4] to any other person is not required. (Connecticut Practice Book § 17-56(b).) (The co-owner referred to in this matter is Georgiana Devine who expressly disclaimed any ownership interest in Sage in her deposition. Exhibit 2, page 12.)
The determination of the issues in this dispute is essentially fact-driven, thus assessing the credibility of the witnesses is largely determinative in the court's decision. Some of the factors to consider are; did the witness appear to be candid or truthful, did the witness appear to have an accurate memory about the events he or she testified to, and did the witness appear to be reporting it accurately? Was that witnesses' testimony consistent with other testimony from both that witness or other witnesses? A witnesses' biases may be a consideration, as well as motivation and human nature which may come into play. (Connecticut Jury Instructions-- § 640-41.)
After carefully examining the testimony and exhibits, this Court concludes the plaintiff has sustained her burden of proof and is entitled to a declaratory judgment in her favor.
Discussion/Findings
Both parties are breeders of Newfoundland dogs. The plaintiff has at all relevant times, [5] operated a kennel at her home in Francestown, New Hampshire and the defendant has operated a kennel at her borne in Coventry, Connecticut. In addition to her kennel operation the defendant was at all relevant times the co-chair of Newfoundland Club of New England Rescue and Referral Service (Newfoundland Rescue).
On March 22, 1997, the plaintiff sold a three-month-old Newfoundland puppy (Sage), to Georgiana Devine for $ 1000. (Exhibit A "Purchase Agreement" and Exhibit B "Co-ownership Agreement.")
The Purchase Agreement provides that "if, at any time this Newfoundland can no longer be cared for by the purchaser, the breeder is to be notified and will take the dog back." It further provides that "the purchaser agrees not to re-sell or place this Newfoundland with another owner." The contract terms are typically used by breeders selling Newfoundland dogs.
After Sage was purchased she lived with Mrs. Devine in Maine. On April 3, 2000, while in Maine, Sage attacked and injured a neighbor's dog. Mrs. Devine was notified by the other dog's owner of the attack when she returned home from her teaching job. Mrs. Devine called the local police department in Cape Elizabeth, Maine and the following [6] morning (April 4th), she was contacted by a member of the police department who told her Sage had to be quarantined in a kennel for ten days to make sure she did not have rabies. (Exhibit 2, pp. 16-19.) Sage was placed in quarantine on April 5th.
Because Sage had previously attacked other dogs (although not as severely as the last one), Mrs. Devine felt she could no longer keep Sage. On April 4, 2000, she went to her teaching job at the Pond Cove Elementary School in Cape Elizabeth. She spoke to Barbara McLean, a secretary at the school, and was obviously upset over the incident on the previous day. Mrs. Devine talked about calling the plaintiff to return Sage to her, but because she was so upset, Mrs. McLean offered to make the call for her.
When she reached the plaintiff she explained to her that Sage had to be relocated and offered to drive the dog down that night (which presumably could not have occurred because of the ten-day quarantine). The plaintiff explained that she could not take the dog that day because she had a bitch who was whelping (having a litter), and she could not handle taking Sage back either that day or in the immediate future. (Exhibit 3 pp. 6-18.) Mrs. McLean's [7] impression was that the plaintiff "had a lot going on and couldn't take Sage." As it turned out after the bitch had delivered some of its puppies, its labor stopped and she had to be rushed to a veterinarian where a C-section was performed to deliver the remaining puppies. It was clearly a difficult time in the plaintiff's household and it was both understandable and reasonable for the plaintiff to say it was impossible for her to take Sage immediately. She certainly did not give up her contract rights either explicitly or implicitly.
There is some confusion about whether Mr. Devine also called the plaintiff on April 4th. The plaintiff claims he did, that she told him about the whelping situation and to call back the next day, but that he never did. According to Mr. Devine's deposition testimony, he received a phone call from Mrs. Devine (at the time they were not married to each other, but had been long time friends). Mrs. Devine lived in Maine while he was in Vermont. He testified that she called him after the attack in question, asking him to call the plaintiff about taking the dog back and that she was "hysterical or close to it;" that he called the plaintiff who said "I'd be [8] glad to take the dog but apparently it's been already given away." (Exhibit 1, pp. 9-10.) The Court cannot reconcile the inconsistent testimony, but, significantly, whenever the conversation did occur, it corroborates that the plaintiff did not intend to relinquish her ownership of Sage. Also adding to the confusion is the fact that Mrs. Devine never spoke directly to the plaintiff about the situation with Sage, but went through intermediaries--Mrs. McLean and Mr. Devine--thus adding to the likelihood of misunderstanding or misinterpreting those communications.
Also, on April 4th following the conversation between Mrs. McLean and the plaintiff (assuming that was the date), Mrs. Devine called a John Williams on Cape Cod. Mr. Williams was known to her as an owner of Newfoundlands and she sought his advice. Mr. Williams recommended she call the defendant Catherine Derench, as she was involved with the Newfoundland Rescue organization. Mrs. Devine called the defendant immediately. (There is also confusion about the date or dates these phone calls were made.)
Mrs. McLean clearly testified the call to the plaintiff was made on April 4th, the day following the attack which would be consistent [9] with her testimony that Mrs. Devine was very distraught and upset.
Mrs. Devine, in her deposition (Exhibit 2, p. 30) testified all the calls were made on April 13th which would have been the tenth day of Sage's quarantine and when she was due to be released. It would appear that the call to the defendant was likely made on April 13th because Mrs. Devine and the defendant made arrangements to meet on April 14th at a stop outside of Boston where the defendant would take possession of Sage, and in fact that was done.
The defendant prepared a bill of sale in anticipation of the transfer, however, there had been no discussion between the defendant and Mrs. Devine about selling the dog. Mrs. Devine had called the defendant because she was involved in Newfoundland Rescue. This was not a bona fide sale.
The defendant, on meeting Mrs. Devine handed her $ 100 saying "you've had a lot of expenses, here's a hundred dollars to help cover some of the expenses" and then had Mrs. Devine sign the "Bill of Sale/transfer." (Exhibit 4.) Mrs. Devine testified that she was not selling the dog and she took the $ 100 only because she was poor. (Exhibit 2, p. 41.)
The defendant, when she learned that the [10] dog involved was Sage, wanted possession of her because she had owned (according to her testimony) Sage's grandmother and Sage was out of her breeding line. From her testimony, the defendant believes that the dog should come back to her for that reason. The Court is not aware of any authority for that position, nor has any been cited.
Sage has a monetary value of approximately $ 900/$ 1000. The defendant's claim that this was a bona fide sale has no merit.
The defendant was also aware that the plaintiff had not relinquished her ownership rights to the dog. Again, while there is inconsistency and confusion about the exact date of some of the phone calls in this case, the defendant testified that on April 4th, John Williams called her from Cape Cod about Sage being in trouble. (There was hearsay introduced that Sage might have to be euthanized if not relocated but Mrs. Devine, who would be the most likely to know, talked only of the ten-day rabies quarantine and did not mention euthanasia in her deposition.) The defendant testified that on April 4th she called the plaintiff after hearing from Mr. Williams and the plaintiff explained her whelping situation and that she couldn't take [11] Sage at that time.
The plaintiff told the defendant that if Sage came to her to let her know and she (plaintiff) would pick her up. In the meantime the plaintiff had been making telephone calls to both Mr. Devine and Mrs. Devine (who were not yet married), unsuccessfully and then on or about April 16th she learned from a phone call to Helen Katz, a co-chair of Newfoundland Rescue based in Massachusetts, that the defendant had Sage.
On that day the plaintiff faxed the defendant that she was forwarding the ownership contracts to her, and to save her expenses concerning Sage (presumably for reimbursement). That fax was followed up by letter on the same day (which the defendant claims she did not receive) a claim which the Court finds suspect given the efforts she made at a sham sale and her strong desire to keep the dog as her own, and her refusal to even discuss the matter with the plaintiff.
Conclusion
The plaintiff has the contractual right to the ownership of Sage. Her inability to take the dog for several days following the phone call to her was excusable and reasonable. The co-owner (Mrs. Devine) did not make any effort to follow up with the plaintiff about returning [12] Sage after the one call from Mrs. McLean. The defendant took possession of Sage in her capacity as a member of Newfoundland Rescue and not as a bona fide buyer. She was aware that the plaintiff had not relinquished ownership rights to Sage.
The plaintiff's possessory rights to Sage are superior to those claimed by the defendant.
Judgment shall enter in Count Two that the plaintiff is the sole owner and solely entitled to possession of Sage.
Judgment shall enter in favor of the defendant in the Count One (tortious interference). Judgment shall enter for the plaintiff in the counterclaim. A bill of costs may be submitted by the plaintiff.
Klaczak, JTR
Footnote 1
Mrs. Devine is described as a co-owner in Exhibit B.