De Lanoy v. Taylor , 300 Or. App. 517 ( 2019 )

517
Submitted November 29, 2018, affirmed November 14, 2019
David DE LANOY,
Plaintiff-Respondent,
v.
Katelin J. TAYLOR,
Defendant-Appellant.
Marion County Circuit Court
16CV24141; A164942
452 P3d 1036
In this dispute over a dog, plaintiff filed a claim for replevin, and defendant
filed a counterclaim for a declaratory judgment. Before trial, defendant chal-
lenged the procedural propriety of the replevin claim and asked the trial court to
proceed only on the declaratory judgment claim. Without clearly ruling on that
issue, the court proceeded to a bench trial. After trial, the court declared plaintiff
to be the lawful owner of the dog, and it entered a judgment ordering defendant to
return the dog to plaintiff. Defendant appeals, asserting that plaintiff’s replevin
claim was procedurally defective. Held: Because the trial court ruled in plain-
tiff’s favor on defendant’s declaratory judgment claim, and defendant has not
assigned error to that ruling, the procedural propriety of the replevin claim does
not affect the disposition of the case, even assuming that the trial court implicitly
denied defendant’s challenge to the replevin claim.
Affirmed.
Thomas M. Hart, Judge.
Geordie Duckler filed the briefs for appellant.
Paul B. Meadowbrook filed the brief for respondent.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
AOYAGI, J.
Affirmed.
518 De Lanoy v. Taylor
AOYAGI, J.
This is a dispute about a dog, specifically a female
whippet named Isis. Plaintiff adopted Isis from the Oregon
Humane Society in April 2013, when she was two months
old. Isis lived with plaintiff and his family in Portland until
approximately summer 2014, when they moved to Florida on
short notice. Plaintiff asked his longtime best friend, Rich,
who lived in Portland, to keep Isis until plaintiff got set-
tled in Florida. Rich agreed. Plaintiff and Rich understood
that Rich was taking care of Isis for plaintiff, who contin-
ued to be her owner, and that plaintiff would eventually
return for her. Defendant, who is Rich’s ex-girlfriend, had a
different understanding. In her view, Isis belonged to Rich,
Rich abandoned Isis, and Isis thereby became defendant’s
property.
In July 2016, plaintiff filed an action for replevin
against defendant. Plaintiff asserted that he was the right-
ful owner of Isis and requested her immediate return.
Plaintiff had difficulty locating defendant to serve the com-
plaint but eventually, in December 2016, succeeded in serv-
ing her. In her answer to the complaint, defendant denied
the allegations, raised various affirmative defenses, and
pled two counterclaims. Only the first counterclaim—for a
declaratory judgment—is relevant here. Defendant alleged,
in support of her counterclaim, that plaintiff had gifted the
dog to Rich, who abandoned the dog, at which time defen-
dant became its lawful owner. Defendant requested a decla-
ration that she was the “true sole owner” of the dog and that
she was entitled, among other things, to physical possession
of the dog.
The court held a bench trial in May. At the start of the
trial, defendant challenged the procedural propriety of plain-
tiff’s replevin claim and argued that her own declaratory-
judgment counterclaim was the only claim properly before
the court. Plaintiff disagreed with defendant’s procedural
argument but also questioned whether it mattered given
that the court would have to decide the counterclaim in any
event: “[A]t the end of the day, does it really matter, because
if you decide ownership of the dog under the dec[laratory]
action, and if you decide that she doesn’t own the dog and
Cite as 300 Or App 517 (2019) 519
he does, then the process would be to get the dog back.” The
court did not directly address the procedural issue regard-
ing the replevin claim, stating only, “Why don’t we just do
the facts. And I’ll figure out who is going to get the dog.”
The sole subject of the trial was who lawfully owned
the dog. Plaintiff argued and put on evidence that he was
the lawful owner, which included both plaintiff and Rich
testifying that the dog had always belonged to plaintiff and
that Rich was only watching the dog for plaintiff until he got
settled in Florida. Conversely, defendant argued and put on
evidence that she was the lawful owner, based on her theory
that the dog belonged to Rich and that Rich had abandoned
the dog to her care while she and Rich were dating.
The trial court found in plaintiff’s favor. It explained
that the evidence was insufficient to establish that plaintiff
had gifted the dog to Rich or had abandoned the dog in the
legal sense. As such, the court ruled, the dog remained the
legal property of plaintiff. The court concluded, “The decla-
ration is that [plaintiff] has a higher legal right[.] * * * And
so I’m declaring that the owner is still the owner, [plaintiff,]
even though [defendant] might think he’s a piece of work.”
The court told plaintiff “[y]ou win” and directed plaintiff to
draft an order for the court.
Defendant appeals, raising a single assignment of
error, in which she again challenges the procedural propri-
ety of the replevin claim. Specifically, defendant asserts that
the trial court erred “by granting replevin to plaintiff on his
sole claim of replevin where no replevin petition was filed
under ORCP 83 A, no bond was posted under ORCP 82 A(4),
and no provisional process hearing was held in compliance
with the civil procedures governing the remedy of replevin.”
The gravamen of defendant’s argument is that, under mod-
ern law, the only way to obtain replevin is to follow the pro-
cedures in ORCP 83 A, which plaintiff did not do.
Defendant’s assignment of error is not well-founded.
As a preliminary matter, defendant has not identified the
ruling to which she assigns error. See ORAP 5.45(3) (requir-
ing appellant to “identify precisely” the ruling that is being
challenged). That is problematic because it is not clear on
520 De Lanoy v. Taylor
this record whether the trial court ever actually ruled on the
procedural issue raised by defendant, even implicitly, or, if it
did, that it necessarily ruled against her. Defendant’s non-
compliance with ORAP 5.45(3) is therefore an impediment
to her arguments on appeal.
However, even assuming that the trial court rejected
defendant’s challenge to the procedural propriety of the
replevin claim, she cannot prevail. Defendant argues that
the replevin claim was “moot” once trial began and that “the
only issue before the Court should have been defendant’s
properly alleged and presented counterclaim for declaratory
relief.” But, in so arguing, defendant herself fails to appre-
ciate the significance of the counterclaim. After hearing the
evidence, the court orally declared plaintiff to be the lawful
owner of the dog. It then directed the physical possession of
the dog to be transferred to plaintiff.1 That was an appro-
priate disposition of the declaratory judgment counterclaim
because, even when only one party asks for a declaration, it
is incumbent on the court to declare the respective rights
of the parties. See Akles v. State of Oregon, 298 Or App
283, 284, 444 P3d 532 (2019) (when a trial court decides a
declaratory judgment claim on the merits, it is to “declare[ ]
the parties’ respective rights,” whether the plaintiff or the
defendant prevails). The court did not expressly mention the
replevin claim, but, even if the court made the same ruling
on both claims, the two claims, as tried in this case by these
parties, were simply two different procedural vehicles to get
the same issue before the court: who lawfully owns the dog
and is entitled to physical possession of the dog.
Thus, in order to prevail on appeal and get the judg-
ment reversed, defendant would have to persuade us that
the court erred in its disposition of both claims, not only the
replevin claim. Cf. Strawn v. Farmers Ins. Co., 350 Or 336,
366, 258 P3d 1199, adh’d to on recons, 350 Or 521, 256 P3d
100 (2011) (“[W]hen a court’s decision or ruling is premised
1
The written judgment enters “verdict in favor of plaintiff and against
defendant” and orders defendant to return the dog to plaintiff by a date certain.
Although it does not expressly “declare” the ownership of the dog, or separately
address the replevin claim and the declaratory judgment counterclaim, there is
no conflict between the oral ruling and the judgment, and no one has raised any
concerns about the form of the judgment.
Cite as 300 Or App 517 (2019) 521
on alternative grounds, a party challenging that ruling gen-
erally must take issue with all independent and alternative
grounds on which it is based to obtain relief.”). But defendant
does not challenge the disposition of the declaratory judg-
ment counterclaim, and so we must affirm. That is because,
even if we agreed with defendant that the court erroneously
proceeded to trial on plaintiff’s replevin claim (an issue on
which we express no opinion), defendant has identified no
error in the trial court’s disposition of the declaratory judg-
ment counterclaim in plaintiff’s favor.2
Accordingly, because the trial court declared plain-
tiff to be the lawful owner of Isis, and no one has challenged
that declaration, we do not reach defendant’s arguments
about the proper procedure for a replevin claim.
Affirmed.
2
Plaintiff correctly (albeit summarily) identified this issue in his answering
brief as “an independent basis for affirming the judgment.”