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Moore v. Knower

Court of Appeals of Louisiana, Fourth Circuit

March 23, 2017


         APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2015-04904, SECTION "A" Honorable Monique G. Morial, Judge


          Stacy Renee Palowsky Palowsky Law, LLC COUNSEL FOR DEFENDANT/APPELLANT, AMY KNOWER.

          Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Sandra Cabrina Jenkins


         This appeal involves the ownership of a beloved pet, Abby, and the related issues of support and care. Following a two-day bench trial on the merits, the First City Court found in favor of plaintiff-appellee, Bruce Macon Moore, and awarded him the use and management of the co-owned dog, Abby. Defendant-appellant, Amy Knower, alleges that she is the sole owner of Abby and argues on appeal the following assignments of error: (1) the trial court erred in finding that she failed to support her claim for full ownership; (2) the trial court erred in finding that she co-owned Abby with Mr. Moore; (3) the trial court erred in failing to accept the testimony of Sheila Ford of the Mississippi Boston Terrier Rescue, that she alone adopted Abby; (4) the trial court erred "by stating that there was no basis in law for her to decide the custody of a dog and then doing just that;" and (5) the trial court erred by exercising jurisdiction over this matter because City Courts do not have jurisdiction over partition proceedings per Code of Civil Procedure article 4847(B). After a thorough review of the record, we affirm the judgment of the trial court.

         Before addressing the merits, we first address whether First City Court has subject matter jurisdiction over this action under La. C.C.P. art. 4847(B), which states that "city courts shall not have jurisdiction in tutorship, curatorship, emancipation, and partition proceedings." La. C.C.P. art. 4843(E) provides that the jurisdiction of the city court in New Orleans is concurrent with the district court in cases where the amount in dispute or amount of the property involved does not exceed $25, 000.00. Further, a partition proceeding between co-owners must be done in kind[1] or by licitation, [2] neither of which are appropriate in this situation involving a living animal.

         The disposition for dog ownership in this case was a novel issue for the trial court. Louisiana Civil Code article 4 states that "[w]hen no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages." In an effort to proceed according to equity principles, the trial relied on La. C.C. art. 802, which provides that "a co-owner is entitled to use the thing held in indivision according to its destination, but he cannot prevent another co-owner from making such use of it." The trial court also relied on La. C.C. art. 803, which states that "when the mode of use and management of the thing held in indivision is not determined by an agreement of all co-owners and partition is not available, a court, upon petition by a co-owner, may determine the use and management." After a review of these codal articles, we find that the trial court, in an effort to be fair to both parties, correctly applied the laws of co-ownership and breach of contract to the facts of this case; thus, we find no merit in Ms. Knower's assignment of error that the trial court's judgment should be dismissed as a nullity for lack of subject matter jurisdiction.

         In regard to the merits, the issue before this Court is whether the trial court manifestly erred in its findings that (1)Abby was co-owned, and (2) that Mr. Moore "is the best person to determine the use and management of Abby." The trial court issued extensive and comprehensive written reasons for judgment on April 18, 2016, that more than adequately state the facts and explain the decision, and are stated as follows:

In the Original Petition for Damages, the plaintiff, Bruce Macon Moore, alleges that in the summer of 2010 he and the defendant, Amy Knower, were in a personal relationship and while they were living together in his home, they mutually decided to adopt a pet. Plaintiff alleges that both parties jointly adopted the pet, Abby, a Boston terrier from the Mississippi Boston Terrier Rescue (MBTR) in December 2010. Until September 2012, the parties lived together and jointly shared expenses for the care and management of the dog, Abby.
After the parties ended their cohabitation in 2010, they began an arrangement in which each person co-possessed, Abby. Abby traveled between their respective residences, one week on and one week off, exchanging on Sundays. The parties also retained keys to each other's homes. During this time, and from time to time they would assist each other with the feeding and walking of Abby if either had a conflict.
For approximately two years, Mr. Moore and Ms. Knower continued to co-possess Abby in this fashion. The parties were very civil to each other during their breakup. They continued to associate with the same friends, and also socialized with each other from time to time. In spite of their relationship status, the parties continued to spend a lot of time together. In August of 2014, Mr. Moore and Ms. Knower decided to give their relationship a second chance.
While the plaintiff and the defendant resumed their romantic relationship in 2014, they did not cohabitate again. They continued to live separately, but the couple also co-possessed Abby according to the same schedule used during the breakup, each still willing to aid the other in the event of a conflict during his or her time with the dog. The parties continued this arrangement for the care, and management of Abby until July 2015. For approximately five years, each party cared for Abby, expended monies on pet supplies, medication, veterinarian expenses, food, etc. Neither party disputes the existence of an informal and mutual arrangement to care for Abby.
The parties amicably split again in May 2015. Although both the plaintiff and the defendant understood the finality of the breakup, they continued to co-possess Abby until the arrangement came to an abrupt end during the Fourth of July weekend in 2015. The plaintiff testified at trial that during this holiday weekend, suddenly and without warning, Ms. Knower refused to exchange Abby on their next exchange date of July 9, 2015. Plaintiff tried, through email communication, telephone calls and text messages, to convince Ms. Knower to convert back to their arrangement, to no avail. Throughout his testimony, Mr. Moore was adamant that it was always the intention of the parties to jointly care for Abby regardless of their relationship status.
Mr. Moore testified that during the course of their relationship, the only shared expense, the only object that both parties shared was Abby. At the time the parties lived together, he avers that he was responsible for the payment of his mortgage, though Ms. Knower did pay the utilities at his home while she resided there. He also stated that they did not share any furniture, electronics, or any other household items; their finances were completely separate. The care of Abby was distinct, however. Both plaintiff and defendant provided for care, comfort, and management of the dog. Once Amy unilaterally decided to terminate their co-possession arrangement, Macon [Mr. Moore] was surprised and filed the instant suit.
Mr. Moore testified that it was always their joint intention to co-possess Abby. He asserts that the parties always contemplated this because they did not want Amy's [Ms. Knower's] prior ownership of a dog, Rocky, to negatively affect their chances of adopting Abby. Ms. Knower had given Rocky away to a friend, Steve Valack, prior to her co-habitation with the plaintiff. He recalls them filling out the application to adopt Abby together on the MTBR website. He also testified that both parties went to Pet Smart in Mississippi to collect Abby after the application was approved. Before the dog's arrival, Mr. Moore purchased various items from Pet Smart for Abby. Once Abby arrived, both Ms. Knower and Mr. Moore interacted with the dog, and they brought the dog to Mr. Moore's home.
To bolster his argument that the parties always intended to jointly care for Abby, Mr. Moore called several witnesses at trial. Steve Valack testified that he and Mr. Moore had been friends for years and that he gladly took Rocky when Ms. Knower sought a new home for the dog. Mr. Valack also testified that he frequently ...

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