Lyman v. Lanser

• Docket Number: 23-P-73
• Decision Date: 07 March 2024
• Citation: 231 N.E.3d 358
• Parties: Brett LYMAN v. Sasha LANSER.
• Court: Appeals Court of Massachusetts

231 N.E.3d 358

Brett LYMAN

v.Sasha LANSER.

No. 23-P-73

Appeals Court of Massachusetts, Middlesex.

Argued November 8, 2023

Decided March 7, 2024

Dog.Animal.Tenants in Common.Injunction.Practice, Civil, Injunctive relief, Interlocutory appeal.Appeals Court, Appeal from order of single justice.Frauds, Statute of.Contract, Performance and breach, Construction of contract, Specific performance.

Civil action commenced in the Superior Court Department on June 24, 2022.

A motion for a preliminary injunction was heard by Shannon Frison, J.

A proceeding for interlocutory review was heard in the Appeals Court by Grant, J.

Jeremy ?.Cohen, Salem (Robert D. Stewart also present) for the plaintiff.

Philip A. Bongiomo, Boston, for the defendant.

Present: Sacks, Brennan, & D’Angelo, JJ.

SACKS, J.

₇₈₇The plaintiff brought this Superior Court action against his former romantic partner, the defendant, seeking specific₇₈₈ performance of an agreement to equally share possession of their jointly-owned property, a Pomeranian dog named Teddy Bear.The plaintiff alleged that Teddy Bear is a "specific and unique chattel."The plaintiff sought, and a motion judge issued, a preliminary injunction requiring the defendant to share Teddy Bear with the plaintiff for alternating two-week periods.The defendant sought relief from a single justice of this court, arguing that, although the dog was coowned, the judge had no authority to order "shared custody" of a dog.The single justice vacated the preliminary injunction, concluding that the motion judge had improperly treated Teddy Bear as if he were the parties’ child.The plaintiff appealed the single justice’s order to this court.We conclude that there was insufficient basis to vacate the preliminary injunction, and therefore we reverse the single justice’s order.

Background.We draw our summary of facts from the verified complaint and the plaintiff’s affidavit in support of his motion for a preliminary injunction; the defendant submitted no evidence in opposition.¹At the time the parties met in 2016, the plaintiff and a previous romantic partner coowned a Pomeranian dog and shared possession of him on an alternating basis.The plaintiff and the defendant"loved" that dog and found it hard to have him only part time.They decided to buy their own Pomeranian that they"could share together."

The parties agreed that if they acquired a dog and then later separated, they would share the dog equally.In June of 2018, they purchased a male Pomeranian puppy and named him Teddy Bear Lanser-Lyman.Although the ownership registration form bore only the plaintiff’s name, the parties evenly split the cost of buying Teddy Bear.During the time the parties r?- mained together, they continued to share the responsibility of caring for and training Teddy Bear, although the plaintiff asserted that he bore a significant majority of the costs, spending about $8,000 during that time.

In the summer of 2021, the parties’ relationship ended, and the defendant moved out of their shared residence.The parties"communicated regularly about [their] intended plan to share Teddy Bear on an approximately equal basis."They sent text messages to each other "to work out as many details as possible to set up ₇₈₉a predictable routine" for sharing him.In early August the defendant proposed that they exchange possession of Teddy Bear approximately every week, and it appears they exchanged possession of him several times that month and the next.Until January of 2022, the parties shared the dog amicably, although the amount of time that the plaintiff had possession of Teddy Bear steadily decreased, in part due to the plaintiff’s conflicting family obligations.

In January of 2022, the defendant moved to a different apartment, and so the parties agreed to temporarily suspend their sharing arrangement to allow Teddy Bear to adjust to the defendant’s new home.This temporary suspension continued until March of 2022 when, according to the plaintiff, the defendant cut off all communication with him and refused to allow him access to Teddy Bear.

The plaintiff then commenced this action for conversion and breach of contract.Expressly disclaiming any request for damages, the plaintiff, in his verified complaint, sought only equitable relief, including specific performance of the parties’ agreement to equally share possession of Teddy Bear.

The plaintiff moved for a preliminary injunction to restore his asserted joint ownership and possessory rights to the status quo that existed before the defendant refused him access to Teddy Bear.He argued that although "the law regards … dogs as property, dogs are property of a distinctive type and nature, living creatures with distinct personalities and [a] finite life span, clearly distinguishable from inanimate personal property."He asserted that the defendant’s actions were causing him irreparable harm, in the form of the loss of Teddy Bear’s companionship, which could not be remedied by money damages.

After a healing, the motion judge credited the plaintiff’s evidence of a binding agreement for shared possession.She found that "[t]he parties each paid half of the price of the dog, expressed intent to share custody even if they separated, and acted on that agreed/shared custody until Jan[uary] 2O2[2]."Her preliminary injunction, referring to "the property known as Teddy Bear," ordered that "[b]ased upon joint ownership rights, both parties shall be allowed to have Teddy Bear for alternating [two]-week periods.Beginning on [November 27, 2022], Teddy Bear will be exchanged at a mutually agreeable location for each exchange (Sunday-Sunday)."

The defendant then petitioned a single justice of this court for relief from the preliminary injunction.SeeG. L. c. 231, § 118, ₇₉₀first par.The single justice acknowledged as undisputed that the parties had equally split the cost of purchasing the dog and agreed to co-own him.The single justice nevertheless found no Massachusetts authority for treating a dog, which is personal property, as unique, such that an order for specific performance of their sharing agreement could be appropriate.The single justice noted a distinction between specific enforcement of written contracts concerning real property and an oral contract concerning personal property.

The single justice concluded that the motion judge abused her discretion by "effectively treat[ing] the dog … as if it were the parties’ child," instead of as personal property.The single justice therefore vacated so much of the preliminary injunction as required the parties to alternate possession of Teddy Bear.²The plaintiff then appealed to this court.SeeG. L. c. 231, § 118, second par.

[1–4]Discussion.1.Standard of review.When we review a single justice’s order issued under G. L. c. 231, § 118, first par., "[t]he essential legal question" before us is "whether the single justice abused [her] discretion by entering an order without having a supportable basis for doing so"(citation omitted).Aspinall v. Philip Morris Cos., Inc., 442 Mass. 381, 390, 813 N.E.2d 476(2004), S.C., 453 Mass. 431, 902 N.E.2d 421(2009)."Answering that question, however, requires examination of the trial [court] judge’s order," because:

"[t]he single justice is not a fact finder and must accept any relevant facts found by the judge when those facts have support in the record.Considerable deference is also required on the part of the single justice to determinations by the judge, especially where those determinations involve an exercise of discretion.In most cases, based on the deference normally accorded determinations by the judge who heard the matter in the first instance, the single justice will decline to act on an application for relief under G. L. c. 231, § 118, first par., that does not disclose clear error of law or abuse of discretion."(Quotation and citation omitted.)

Id.

[5–8]The motion judge, in turn, was governed by the familiar preliminary injunction standard:

₇₉₁"To succeed in an action for a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff’s likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction….When … a party seeks to enjoin governmental action, the court also considers whether the relief sought will adversely affect the public."(Citation omitted.)

Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219, 741 N.E.2d 37(2001)."At the preliminary injunction stage, an appellate court will not reverse the action of the motion judge if there is a supportable legal basis for that action."Boston Harbor Commuter Serv., Inc. v. Massachusetts Bay Transp. Auth., 46 Mass. App. Ct. 122, 123, 704 N.E.2d 197(1999).Of course, "[i]f the basis on which the preliminary injunction was issued is wrong as a matter of law, the preliminary injunction cannot be sustained."Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212, 680 N.E.2d 92(1997).

[9, 10] 2.Likelihood of success on the merits.As already stated, there is no dispute that the parties jointly own Teddy Bear.Domestic animals are personal property, seeIrwin v. Degtiarov, 85 Mass. App. Ct. 234, 237, 8 N.E.3d 296(2014), and may be owned by a tenancy in common,³seeGoell v. Morse, 126 Mass. 480, 481(1879)(parties who each contributed to purchase price "were the owners as tenants in common of the horse").

[11] a. Existence of agreement.The motion judge, having found that the parties evenly split the purchase price of Teddy Bear, "expressed intent to share custody even if they separated, and acted on that agreed/shared custody" for some months after their separation, could view the plaintiff as having stated a meritorious claim for breach of a contract to equally share possession of ...