“Dogs are not our whole life, but they make our lives whole.”
Animal-Welfare Advocate Roger Caras (quoted by Court of Appeals Judge Lawrence E. Mooney)
I am an unabashed dog-person. Thus, a recent opinion out of Missouri’s Eastern District Court of Appeals, which entangled a dog’s adoption story with the law, immediately had me hooked.
Other than what I read in the Court’s opinion, I do not personally know Mack the Dog, nor the other dramatis personae in this case, and I am not here to provide commentary or an opinion on any of them. So I will limit my discussion to the Court’s legal analysis, and its potential implications for future cases.
If you are still reading, you likely are also a dog-person and/or would like to know more about the dog-gone contract at issue:
In Patterson v. Rough Road Rescue, Inc., the Court of Appeals affirmed a trial court’s decision to return a dog named Mack to, according to the Court, its rightful owner, plaintiff Patterson.
The trial court had found in favor of Plaintiff who made a claim for replevin, a civil remedy and “possessory action to obtain property that is in the defendant’s possession,” after Defendant Rough Road Rescue would not return the dog, (Mack had previously been adopted from the rescue shelter by Patterson) and had been picked up in town and returned to the shelter after wandering off from Plaintiff’s yard. To succeed on such a claim of replevin, a plaintiff must show:
- The plaintiff owned the property or was entitled to possess it;
- The defendant took possession of the property with the intent to exercise some control over it; and
- The defendant, by exercising such unauthorized control over the property, deprived the plaintiff of his right to possession.
On appeal, Defendants argued that the trial court erred in its decision because 1) the adoption was not governed by the UCC in that “the adoption was not a ‘sale’ and because they are not ‘sellers’ or ‘merchants’ as defined by the code, 2) the terms of the contract, under which Patterson adopted Mack, provide a reversionary interest in the dog permitting defendants to retake and retain the dog when the terms of the Animal Adoption Contract were breached, and 3) the $2500 bond posted, which was due to an individual defendants’ failure to comply with the trial court’s order to return Mack, was grossly excessive.
The Court of Appeals’ affirmation of the trial court’s decision, finding replevin was properly granted due to the adopter (Plaintiff) being the rightful owner, came after a de novo review of Plaintiff’s claim to possession of Mack based on Rough Road Rescue’s Animal Adoption Contract. Unlike the trial court, the Court of Appeals focused not whether a dog was actually a “good” under the UCC and/or whether the adoption was a “sale” contemplated by the UCC, but rather on the interpretation of the Contract. Personally, as one who has always considered my dogs as family, I felt uneasy about the trial court’s label of the dog as a “good” and thought that there needed to be a discussion about that label and the law, but perhaps the Court wanted no dog in that fight, for now.
Plaintiff’s claim was based on the Contract; thus, the issue presented was of contract interpretation. “A cardinal principle of contract interpretation is to ascertain the intention of the parties and to give effect to that intent.” The Court honed in on five specific “conditions” set forth in the Contract. The first, third, and fourth addressed fairly standard conditions, setting a timeline for the adopted pet to be spayed/neutered, providing the adopted pet with humane care, and complying with all laws and ordinances applicable to the adopted pet where the adopter lives. The tenth was an additional, handwritten requirement that the adopter agreed to provide a fenced yard for the adopted pet by a certain date.
Where there is ambiguity within the four corners of a contract – i.e., the language used “is reasonably susceptible to two or more interpretations” - then the Court looks at such external factors as the relationship of the parties, circumstances of the execution of the contract and its subject matter, acts of the parties, and circumstances which may shed light on the intent of the parties. A court “construes the ambiguity and interpret the contract in the light most favorable to the party who did not draft the contract.”
In this case, the Court found at least some portions of the Contract ambiguous, largely within the language of the ninth condition, which stated:
9. Any noncompliance of this adoption contract by the above mentioned owner, may void this contract. And could immediately give a representative of Rough Road Rescue, Inc. the authority to take possession of said animal. (emphasis added)
Since the contract was drafted by Rough Road Rescue, the Court construed the contract, including the ninth provision above against Rough Road Rescue and in favor of Plaintiff. Also, of note, is that Rough Road’s own personnel, who were involved in the drafting of the Contract, even disagreed about the meaning of many of its terms, such as adoption, providing further support of the Contract’s ambiguity.
The use of the words “may” and “could” were central to the Court’s analysis. In interpreting condition #9, the Court reasoned that “‘may’ and ‘could’ are conditional words as to what might occur, rather than what must result.” This repossession provision also clearly stated that the adopter was the owner, which implied that the adopter obtained ownership (full and exclusive rights), not just possession (which can be temporary and/or partial) of the adopted animal, therefore, the Court concluded that the Contract did in fact grant Plaintiff ownership of Mack and rejected what it found to be an unreasonable result if Rough Road Rescue was permitted to keep such a long leash on the potential repossession of Mack.
Lessons learned from this dog-gone contract? First, use assertive, mandatory language, such as “shall void” (not “may void”) and “must” (not “could”) if you want a stronger argument of a right to repossession of property. Second, make sure those who draft your contract are all in agreement with what those contractual terms mean (perhaps you want to get that agreement in writing too). Third, be cognizant and purposeful with the language that you use in your contracts, to avoid a “ruff” result.