Woman argues state statute abrogates common law, effectively undoing it
By Kevin Featherly
BridgeTower Media Newswires
MINNEAPOLIS, MN — Oh where, oh where will Oliver go? That’s up to the state Supreme Court.
Oliver is a 12-year-old dog of mixed poodle, beagle, Bichon Frise and Shih Tzu ancestry who is at the center of a dry legal dispute over the disposition of abandoned tangible property.
Derrick Agate, Jr., who has possessed the dog for years, argues that common law holds that his ex-girlfriend abandoned her rights to Oliver four years ago. That’s when she took the other dog they once shared — a smaller pooch named Alex — to live with her in California, leaving Oliver behind.
Not so, according to respondent Dannielle Zephier, his former girlfriend, who won the argument at the Court of Appeals on April 13. That case is now before the Supreme Court.
Zephier argues that Minn. Stat. § 345.75 abrogates common law, effectively undoing it. In her interpretation, Agate cannot claim Oliver was abandoned to his possession without first giving her 30 days’ notice, so that she would know she needed to retrieve him. Since no such notice was ever given, she argues, the pooch is hers.
Oliver was not available for comment.
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Background
There is no dispute that Zephier bought Oliver as a pup for $625 in 2008 and that she maintained ownership of both Oliver and Alex until 2013. But when she moved to Los Angeles for college, she couldn’t take the dogs along. At first, she left them with her father. But in 2015 he decided he couldn’t do it anymore.
Her former boyfriend, Agate, agreed to keep the dogs full-time in Minnesota. Their verbal agreement left Agate “with some level of ownership interest” in both dogs, according to a District Court ruling.
Over the years, according to court records, Zephier contributed to the dogs’ upkeep, spending around $3,100 — though payments tailed off over time. In November 2016, Zephier returned to Minnesota to retrieve Alex. But she couldn’t take Oliver, too, without putting him in the baggage hold of the plane. So once again, Oliver stayed with Agate.
By now, Agate was living with a new girlfriend, LeeAnn Krueger, in Minneapolis. In October 2017, Zephier came back to Minnesota once again — Agate’s lawyer Marshall Tanick says to visit Oliver; Zephier’s lawyer Stephen Buterin says to retrieve him. This time Agate refused to let her see the dog.
Zephier went to the police, but they did not intervene. Ten months later, Zephier went to conciliation court, which allowed Agate to keep the dog, but ordered him to pay her $570 in compensation.
Unsatisfied, Zephier removed the matter to Hennepin County District Court, where Judge Susan M. Robiner found for Agate on April 12, 2019.
Robiner relied heavily on common law precedent — the state Court of Appeals’ 1986 ruling in Mulvhill v. Finseth, for example — which says that determining property abandonment depends on facts and circumstances to be decided in court. Those factors include “failure to make payments for a long period of time” and “failure to retain possession.”
Robiner ruled that Agate had possessed Oliver for more than six months and that Zephier had “made an intentional and voluntary decision to part with Oliver” when she left him behind in November 2016. Based on those factors and citing Minn. Stat. § 345.75, Robiner ruled that Agate could keep the pooch “on grounds of abandonment.”
The Court of Appeals reversed. Framing the issue as “a question of whether the statute governing the abandonment of tangible personal property abrogated common law,” Judge Lucinda Jesson, writing for a unanimous panel, found that, yes, it did.
The District Court failed to properly apply the 30-day notice requirement in § 345.75, the appeals court found. And Agate failed to give that notice to Zephier in claiming possession. Therefore, Jesson ruling says, Zephier remains Oliver’s legal owner.
That ruling did not specifically order the dog returned to Zephier pending appeal, and he hasn’t been. Oliver remains in Agate’s custody, both sides’ attorneys confirm.
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Who’s a good boy?
Having lost Round 2, Agate and Krueger appealed Jesson’s ruling to the state Supreme Court, which heard the case Tuesday.
For the Supreme Court, the case is not just a pooch dispute between fallen-out lovers best be left to Judge Judy. It’s a precedential case that, for the first time, invites the court to interpret the 2005 statute governing tangible-property abandonment.
Law is much better settled on questions of intangible property — think bank accounts and unclaimed wages or insurance proceeds — than it is on what to do with abandoned, tangible personal property.
Like poor old Oliver.
Tanick argued Tuesday that there is nothing in § 345.75 that abrogates the common law. That argument, he said, is fortified by Minn. Stat. § 645.28, which says that any laws in force when legislators revise state codes are not repealed, unless the new statute expressly repeals them.
But § 345.75 doesn’t say so, Tanick said. In fact, the law is written in permissive terms, offering that ownership of abandoned property “may” be changed according to the directions out in the rest of the statute, which includes the 30-day notice.
To Tanick, that effectively makes adhering to the statute optional, the other option being to let a fact-finder decide in court.
“A party does not, in our view, have to comply with the statute in order to have a fact-finder determine if there was abandonment under the common law,” he said.
“Where does the statute say that?” Justice Paul Thissen asked him. “I mean, how can the statute possibly run that way?”
Tanick said the answer lies in the statute’s use of the permissive word “may.” He suggested the statute might be best relegated to deciding high-value property disputes that need more formal resolution.
Justice Anne McKeig was skeptical. “That doesn't really make sense to me, nor would that be helpful to the District Courts,” she said. “And here, clearly the parties put a lot of value on this dog. So why wouldn't that just create lots of confusion?”
Buterin, the lawyer for Zephier, said Tannick’s position is simply wrong. “Mr. Tanick said that a party doesn't have to comply with the statute,” he said. “Then why do we have the statute?”
The word “may” in the law, Buterin said, doesn’t give the possessor a choice of whether to follow it. It simply gives the possessor of ostensible abandoned property flexibility to decide whether to pursue full possession, he said.
Thissen wondered whether common law and the statute might co-exist, as Tanick had suggested during his arguments.
“Isn't it possible that the reason for this statute is to provide someone with a very definitive way of establishing ownership, which would make sense of the word “may” — and I think maybe some of the legislative history — but that it doesn't mean that the common law was taken away?” he asked.
No, Buterin said. The word “may” doesn’t serve that function. It merely establishes that, once property has been left in someone’s possession for six months, the possessor can choose whether to file the 30-day notice to launch the process of gaining full ownership.
Chief Justice Lorie Gildea noted that case law tends to be skeptical toward abrogation. “What's the strongest precedent for you, do you think, that there's been abrogation here?” she asked.
Buterin pointed to a few cases, including 2007’s state Supreme Court ruling in Enright v. Lehmann, which declared that common law can be abrogated when it and statute are incompatible. That is the case with the law regarding abandoned tangible property, he said.
“In this case,” he said, there's nothing left to the common law.”
