Submitted November 29, 2018
County Circuit Court 16CV24141; Thomas M. Hart, Judge.
Geordie Duckler filed the briefs for appellant.
B. Meadowbrook filed the brief for respondent.
DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock,
Judge pro tempore.
dispute over a dog, plaintiff fled a claim for replevin, and
defendant fled a counterclaim for a declaratory judgment.
Before trial, defendant challenged the procedural propriety
of the replevin claim and asked the trial court to proceed
only on the declaratory judgment claim. Without clearly
ruling on that issue, the court proceeded to a bench trial.
After trial, the court declared plaintiff to be the lawful
owner of the dog, and it entered a judgment ordering
defendant to return the dog to plaintiff. Defendant appeals,
asserting that plaintiff's replevin claim was
procedurally defective. Held: Because the trial
court ruled in plaintiff's favor on defendant's
declaratory judgment claim, and defendant has not assigned
error to that ruling, the procedural propriety of the
replevin claim does not affect the disposition of the case,
even assuming that the trial court implicitly denied
defendant's challenge to the replevin claim.
Or.App. 518] AOYAGI, J.
a dispute about a dog, specifically a female whippet named
Isis. Plaintiff adopted Isis from the Oregon Humane Society
in April 2013, when she was two months old. Isis lived with
plaintiff and his family in Portland until approximately
summer 2014, when they moved to Florida on short notice.
Plaintiff asked his longtime best friend, Rich, who lived in
Portland, to keep Isis until plaintiff got settled in
Florida. Rich agreed. Plaintiff and Rich understood that Rich
was taking care of Isis for plaintiff, who continued to be
her owner, and that plaintiff would eventually return for
her. Defendant, who is Rich's ex-girlfriend, had a
different understanding. In her view, Isis belonged to Rich,
Rich abandoned Isis, and Isis thereby became defendant's
2016, plaintiff filed an action for replevin against
defendant. Plaintiff asserted that he was the rightful owner
of Isis and requested her immediate return. Plaintiff had
difficulty locating defendant to serve the complaint but
eventually, in December 2016, succeeded in serving her. In
her answer to the complaint, defendant denied the
allegations, raised various affirmative defenses, and pled
two counterclaims. Only the first counterclaim-for a
declaratory judgment-is relevant here. Defendant alleged, in
support of her counterclaim, that plaintiff had gifted the
dog to Rich, who abandoned the dog, at which time defendant
became its lawful owner. Defendant requested a declaration
that she was the "true sole owner" of the dog and
that she was entitled, among other things, to physical
possession of the dog.
court held a bench trial in May. At the start of the trial,
defendant challenged the procedural propriety of plaintiffs
replevin claim and argued that her own declaratory-judgment
counterclaim was the only claim properly before the court.
Plaintiff disagreed with defendant's procedural argument
but also questioned whether it mattered given that the court
would have to decide the counterclaim in any event:
"[A]t the end of the day, does it really matter, because
if you decide ownership of the dog under the dec[laratory]
action, and if you decide that she doesn't own [300
Or.App. 519] the dog and he does, then the process would be
to get the dog back." The court did not directly address
the procedural issue regarding the replevin claim, stating
only, "Why don't we just do the facts. And I'll
figure out who is going to get the dog."
sole subject of the trial was who lawfully owned the dog.
Plaintiff argued and put on evidence that he was the lawful
owner, which included both plaintiff and Rich testifying that
the dog had always belonged to plaintiff and that Rich was
only watching the dog for plaintiff until he got settled in
Florida. Conversely, defendant argued and put on evidence
that she was the lawful owner, based on her theory that the
dog belonged to Rich and that Rich had abandoned the dog to
her care while she and Rich were dating.
trial court found in plaintiffs favor. It explained that the
evidence was insufficient to establish that plaintiff had
gifted the dog to Rich or had abandoned the dog in the legal
sense. As such, the court ruled, the dog remained the legal
property of plaintiff. The court concluded, "The
declaration is that [plaintiff] has a higher legal right[.] *
* * And so I'm declaring that the owner is still the
owner, [plaintiff, ] even though [defendant] might think