Lamare v. North Country Animal League, 98-258.

• Decision Date: 12 November 1999
• Docket Number: No. 98-258.,98-258.
• Citation: 743 A.2d 598
• Court: Vermont Supreme Court
• Parties: Chasidy LAMARE and Charles Arnold v. NORTH COUNTRY ANIMAL LEAGUE, Darcie Fitzgerald, and John and Jane Doe.

743 A.2d 598

Chasidy LAMARE and Charles Arnold v. NORTH COUNTRY ANIMAL LEAGUE, Darcie Fitzgerald, and John and Jane Doe.

No. 98-258.

Supreme Court of Vermont.

November 12, 1999.

Clarke D. Atwell, Law Office of Robert A. Gensburg, St. Johnsbury, for Plaintiffs-Appellants.

Jeff W. Lively of Olson & Associates, Stowe, for Defendants-Appellees.

Beth Robinson of Langrock Sperry & Wool, Middlebury, and Roger A. Kindler and Paul J. Tanis, Washington, D.C., for Amici Curiae the Humane Society of the United States, et al.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Plaintiffs Chasidy Lamare and Charles Arnold appeal a summary judgment of the Lamoille Superior Court in favor of defendants North Country Animal League, Darcie Fitzgerald, and John and Jane Doe. Plaintiffs raise numerous claims challenging the court's ruling that their possessory interest in a lost dog had been transferred to defendants under the Town of Wolcott's dog control ordinance. We affirm.

The following facts are undisputed. Plaintiffs were the co-owners of a five and one-half year old female German Shepard named Billy. They acquired the dog as a puppy and registered it with the American Kennel Club. On June 3, 1997, Billy and her five-month-old puppy broke free from their tether at plaintiffs' residence in Wolcott. Although licensed with the Town of Wolcott, Billy was not wearing her license tags at the time of her escape. The puppy returned several hours later. When Billy failed to return, plaintiffs contacted their neighbors, friends, and family with the hope that she had gone to someone's home. During the next month, plaintiffs continued to search for Billy when they had time, but her continued absence caused them to speculate that she had been injured, killed, or stolen.

In fact, Billy was found several hours after her escape, running on the road, by a couple who brought her to Lamoille Kennel. An employee of Lamoille Kennel notified Gilbert Goff, the Wolcott animal control officer. Goff assumed control and custody of the dog under the Wolcott dog control ordinance.

As required by the ordinance, Goff placed notices describing the dog in the village store, post office, and town clerk's office. After holding Billy for nine days from the date of impoundment without any response to the notices, Goff transferred Billy into the care and custody of defendant North Country Animal League, where Billy remained for approximately three weeks.

On Sunday, July 6, plaintiff Arnold's mother contacted Goff, who told her that he had placed a dog in the League's custody. Plaintiffs called the League that day and left a message on the answering machine concerning their lost dog. On Monday, July 7, plaintiffs again contacted the League and were told that it still had the dog in its possession. Plaintiffs arrived at the League shortly thereafter and identified the dog. They asked that the dog be returned, provided American Kennel Club papers to prove ownership, and offered to pay all boarding costs. A League employee, defendant Darcy Fitzgerald, told them that the dog belonged to the League and that the only way to gain possession was to fill out an adoption application. Plaintiffs immediately completed the application, but were told that their personal references had to be contacted. Two days later, plaintiffs called the League to inquire about the status of their adoption application. A League employee informed plaintiffs that their application had been denied. When plaintiffs questioned the reason for the denial, they were told that it was not in the dog's best interests to be returned to them. Plaintiffs later learned that, in fact, the League had approved "Jane and John Doe's" adoption of Billy on July 5, prior to plaintiffs' application. Billy was spayed on July 8 and adopted by the Doe family that same day. None of the references listed in plaintiffs' application was ever contacted.

Plaintiffs then filed this action to recover their dog from the Does and for damages from the League for violation of their due process rights guaranteed by the United States Constitution. When defendants refused to disclose the identity of the Does through interrogatories, plaintiffs moved to compel disclosure. Defendants, in response, moved for a protective order to protect the Does' identity. After a hearing, the court denied plaintiffs' motion to compel.

The parties subsequently filed cross-motions for summary judgment. The court granted defendants' motion and denied plaintiffs', concluding that under Morgan v. Kroupa, 167 Vt. 99, 104, 702 A.2d 630, 633 (1997), the animal control officer had made reasonable efforts to locate the dog's owner by complying with the town's dog control ordinance, and that plaintiffs had failed to satisfy their requirement of conscientiously searching for the dog. The court further concluded that when the animal control officer gave the dog to the League, plaintiffs' property rights were extinguished and the League became the rightful owner of the dog. Finally, the court ruled that plaintiffs could not challenge the validity of the animal control ordinance because they had failed to name the town as a party to the action. This appeal followed.

Although variously stated, plaintiffs essentially contend the court erred in: (1) applying Morgan instead of the lost property statutes, see 27 V.S.A. §§ 1101-1110; (2) declining to address the validity of the town's animal control ordinance; (3) failing to find that the ordinance was invalid under state law and the United States Constitution; and (4) refusing to order disclosure of the Does' identities.

I.

In Morgan, we held that when the finder of a lost dog makes a reasonable effort to locate the owner and responsibly cares for the animal over a reasonably extensive period of time, the finder may be awarded possession of the dog. See 167 Vt. at 104, 702 A.2d at 633. We noted several factors that the court should consider in making this discretionary decision, including the reasonableness of the search efforts by both the owner and the finder, and the length of time that the finder responsibly cared for the dog.

Morgan involved a dispute between private parties and was governed by common law principles. This case, in contrast, concerns the rights and responsibilities of a public entity vis a vis the owners of a lost dog and is controlled by state statutes and local ordinances. Thus, the trial court's task here was confined to interpreting and applying the pertinent legislative enactments and determining their validity. The trial court's application of Morgan was therefore inapposite, but as we reach the same result on different grounds we need not reverse the judgment. See Putter v. Montpelier Pub. Sch. Sys., 166 Vt. 463, 471, 697 A.2d 354, 359 (1997) (we may affirm correct judgment even though grounds for it are erroneous).

The Wolcott dog control ordinance provides:

If the owner of the dog is unknown, the officer shall, within forty-eight (48) hours of impoundment, post an advertisement in the Town Clerk's Office and at least one public place in the Town. Said notice shall describe the dog, state when and where the dog was impounded and declare that unless the owner or person entitled to possession of the dog shall claim the same and pay all charges set forth below within seven (7) days after posting of such notice, the dog office shall sell the dog, give the dog away or dispose of it in a humane way.

Town of Wolcott Dog Control Ordinance, § 7(C).

The record evidence supports the trial court's conclusion that the local animal control officer complied with the notice requirements of the ordinance, and properly transferred ownership of the dog to the League under its provisions. Indeed, plaintiffs do not challenge these findings, but instead contend that the ordinance was invalid because it was not authorized by state statute and violated their constitutional right to due process. The trial court declined to address these claims, ruling that they were not cognizable because plaintiffs had failed to name the town as a party defendant. The first issue, therefore, concerns the soundness of this ruling.

In any proceeding for declaratory relief that involves the validity of a municipal ordinance, the municipality "shall be made a party and shall be entitled to be heard." 12 V.S.A. § 4721. If the ordinance is alleged to be unconstitutional, the Attorney General is also entitled to be served and heard. See id. Although plaintiffs' complaint in this case was not specifically denominated an action for declaratory judgment, the statute unquestionably applied because the validity of the ordinance was raised at trial, briefed, and argued by the parties. See V.R.C.P. 15(b) (when issues not raised by pleadings are tried by express or implied consent of parties, they shall be treated in all respects as if they had been raised by pleadings).

Section 4721 essentially makes the town whose ordinance is at issue a "necessary" party, that is, one whose interest in the subject matter of the action is such that its disposition may "impair or impede [its] ability to protect that interest." V.R.C.P. 19(a); see also Price v. Leland, 149 Vt. 518, 520-21, 546 A.2d 793, 795 (1988) (holding that town was not necessary party to the proceeding under 12 V.S.A. § 4721 because it did not have "cognizable interest" in outcome). As the Reporter's Notes to Rule 19 explain, if a necessary party "has not been joined and can be served with process, the court, on defendant's motion... or on its own motion, must order him joined." Reporter's Notes, V.R.C.P. 19.

Having correctly determined that the town was a necessary party under § 4721, the court should have ordered that it be joined rather than simply decline to address the issues raised by plaintiffs. The trial court's oversight, however, does not necessarily require that the judgment be reversed. When joinder of a necessary party is...