Appendix 12 Replevin Pleadings and Analysis

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Appendix 12 Replevin Pleadings and Analysis

The purpose of this appendix is to help you learn how to look for holes, or half-truths, in the adverse party's claims before you learn anything about your own client's claims. In this appendix, you will see a summons, complaint in replevin, plaintiff's notice of motion and motion for summary judgment, and plaintiff's memorandum of law in support of summary judgment, all written by a well-known family lawyer, together with the plaintiff's reply to defendant's counterclaim. These pleadings represent very traditional and conservative replevin and summary judgment property arguments.

The response/answer in this appendix was drafted by a pro se defendant. The defendant's pleadings, followed by the pleadings by the attorney she ended up hiring, are also provided with commentary. The defendant's attorney reasoned that the state should not consider traditional ownership criteria when there was an animal safety issue and advanced equitable arguments. She further argued that awarding the dog to the defendant would be in both the defendant's and the dog's best interests. More specifically, the defense maintained the following:

• Because the documents the plaintiff relied upon did not clearly establish ownership, the subject of ownership was a material fact.
• The court should have treated the pro se party's failure to specifically deny the plaintiff's ownership of the dog in a pleading as a clerical mistake.
• The pro se defendant using the words "I will not admit" in her response to the plaintiff's request for admissions was equivalent to a denial.
• The plaintiff's failure to annually license the dog was evidence of lack of ownership.
• Under Pratt v. Pratt,¹ the court could consider evidence of the mistreatment of a dog in a divorce context.

The names and information in the following pleadings filed with the court have been altered to provide anonymity. As stated above, the comments are intended to show the family lawyer ways to analyze and criticize an opposing party's work product and to begin the process of conceptualizing possible counterarguments without the benefit of any other pertinent information about the case. It might be useful to attempt to deconstruct each party's pleadings yourself before you look at the footnotes.

STATE OF MINNESOTA COUNTY OF SMITH

In Re the Matter of: Andy Anderson, Plaintiff,

and

Nicole Davis Defendant.

DISTRICT COURT FIRST JUDICIAL DISTRICT CIVIL COURT DIVISION

Court File No. 123

SUMMONS

THIS SUMMONS IS DIRECTED TO: NICOLE DAVIS, DEFENDANT ABOVE-NAMED, 222 FIRST AVENUE, WILCO, MINNESOTA 55304.

1. YOU ARE BEING SUED. Plaintiff has started a lawsuit against you. Plaintiff's Complaint against you is attached to this Summons. Do not throw these papers away. They are official papers that affect your rights. You must respond to this lawsuit even though it may not yet be filed with the Court and there may be no Court file number on this Summons.

2. YOU MUST REPLY WITHIN 20 DAYS TO PROTECT YOUR RIGHTS. You must give or mail to the person who signed this Summons a written response called an Answer within 20 days of the date on which you received this Summons. You must send a copy of your Answer to the person who signed this Summons located at: Johnson Law Office, 100 Seventh Street, Minneapolis, MN 55408.

3. YOU MUST RESPOND TO EACH CLAIM. The Answer is your written response to Plaintiff's Complaint. In your Answer, you must state whether you agree or disagree with each paragraph of the Complaint. If you believe Plaintiff should not be given everything asked for in the Complaint, you must say so in your Answer.

4. YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO SIGNED THIS SUMMONS. If you do not answer within 20 days, you will lose this case. You will not get to tell your side of the story, and the Court may decide against you and award Plaintiff everything asked for in the Complaint. If you do not want to contest the claims stated in the Complaint, you do not need to respond. A default judgment can then be entered against you for the relief requested in the Complaint.

5. LEGAL ASSISTANCE. You may wish to get legal help from a lawyer. If you do not have a lawyer, the Court Administrator may have information about places where you can get legal assistance. Even if you cannot get legal help, you must still provide a written Answer to protect your rights or you may lose this case.

6. ALTERNATIVE DISPUTE RESOLUTION. The parties may agree to or be Ordered to participate in an Alternative Dispute Resolution process under Rule 114 of the Minnesota General Rules of Practice. You must still send your written response to the Complaint even if you expect to use alternative means of resolving this dispute.

Date:__________ __________

Jacob Johnson

Johnson Law Office

100 South Seventh Street

Minneapolis, MN 55408

STATE OF MINNESOTA COUNTY OF SMITH

In Re the Matter of: Andy Anderson, Plaintiff,

and

Nicole Davis Defendant.

DISTRICT COURT FIRST JUDICIAL DISTRICT CIVIL COURT DIVISION Court File No. 123

COMPLAINT IN REPLEVIN

Plaintiff, Andy Anderson, for his Complaint against Defendant, Nicole Davis, states and alleges as follows:

PARTIES

1. Plaintiff Andy Anderson, a Minnesota resident, resides in Smith County, Minnesota.

2. Defendant Nicole Davis, a Minnesota resident, resides in Smith County, Minnesota.

JURISDICTION

3. The Court has jurisdiction over the subject matter and parties to the above-captioned case; the County of Smith is the proper venue for the above-captioned case pursuant to Minn. Stat. §542.06.

4. This action is brought pursuant to Ch. 565 of the Minnesota Statutes.²

FACTUAL BACKGROUND

5. Plaintiff is the sole owner of a Shiba Inu dog named Millie (hereinafter "Millie"). Millie was born on November 15, 2007 in Alexandria, Douglas County, Minnesota.³

6. On or around January 21, 2008, Plaintiff traveled to Alexandria, Minnesota, to pick up Millie. Plaintiff purchased Millie for $500.00 from the Best Mates Animal Society of Alexandria, Minnesota. All monies used for the purchase of Millie were that of Plaintiff. Alex Gustafson, the breeder of Millie, will attest to Plaintiff's legal ownership of Millie. Alex Gustafson, the breeder of Millie, has completed an American Kennel Club Litter Record, a true and correct copy of which is attached hereto as Exhibit A.⁴

7. Thereafter, Millie resided with Plaintiff at his one-bedroom apartment located at 111 Smith Street in Wilco, Minnesota.

8. Plaintiff chose the name for Millie without any help from others.⁵ Millie was named after his mother.

9. In April 2010, Millie landed awkwardly on her left front leg and broke it. Plaintiff took Millie to an emergency veterinary clinic located in Minneapolis, Minnesota. The veterinarians worked quickly to take x-rays and set the broken bone. The next day, Plaintiff took Millie to #1 Animal Hospital. The attending veterinarian took additional x-rays and recommended surgery by an orthopedic surgeon.⁶

10. The Friday of that same week in April 2010, Millie had surgery. Pins and screws were required and remain in place to date. Millie had a successful recovery. Plaintiff paid all costs of the surgery, which exceeded $4,000.00. Since Millie was Plaintiff's separate property, it was Plaintiff's responsibility alone to pay all healthcare costs for Millie's health and well-being.⁷

11. Millie continued to live with Plaintiff at 111 Smith Street in Wilco, Minnesota, for the next five months and had minimal contact with Defendant.⁸

12. On or around July 1, 2010, Plaintiff moved in with Defendant at her townhome having the common address of 222 First Avenue, Wilco, Minnesota.⁹

13. Defendant would rarely take the time to walk Millie, aid in training and obedience, or let Millie out early in the mornings or after work in order to permit Millie to relieve herself.¹⁰

14. Despite living and sharing a co-residence with Defendant, Plaintiff was responsible for paying Millie's healthcare, special weight management dog food, grooming every six weeks at Dog Groomers Palace, and other related expenses, including the cost to have Millie spayed (costs of approximately $500.00). Plaintiff also paid to have an identification microchip embedded into Millie and other registration costs. Millie is registered in Plaintiff's name.¹¹

15. Countless neighbors situated in Wilco, Minnesota, and mutual friends of Plaintiff and Defendant would attest that it was Plaintiff who would walk and care for Millie. More importantly, these close mutual friends would also confirm that Millie was Plaintiff's dog.¹²

16. Defendant's only significant financial contribution to Millie is a current health insurance policy that Defendant purchased for Plaintiff and Millie as a Christmas gift.¹³

17. Unbeknownst to Plaintiff, over the course of the past few years, Defendant has made misrepresentations to third parties regarding her legal rights to Millie's ownership. More specifically, Defendant made an attempt to license Millie in her name alone, and has changed the owner's name on various accounts with third parties, including #1 Animal Hospital. All of Defendant's actions were done without the knowledge or consent of Plaintiff.¹⁴

COUNT I Replevin/Claim and Delivery of Millie

18. Plaintiff restates and realleges the foregoing paragraphs as though fully stated herein.

19. Millie's physical description is described as follows: wedge-shaped head with small ears, dark eyes, and a coat of orange, white, and cream colors. A true and correct photograph of the same is attached hereto as Exhibit B.¹⁵

20. At all times material hereto, Plaintiff was the sole owner of one Shiba Inu dog named Millie and having the physical description as set forth above. As such, Plaintiff is entitled to immediate possession of the property.¹⁶

21. On or around August 23, 2011, Plaintiff was locked out of his co-residence and Defendant wrongfully detained Millie.¹⁷

22. Defendant's detention and taking of Millie is...