2016 Mass. App. Div. 127

April 29, 2016 - November 14, 2016

Appellate Division Southern District

Court Below: District Court, Attleboro Division

Present: Hand, P.J., Kirkman & Finigan, JJ.

Keith G. Langer for the plaintiffs.

Alfred A. Gray, Jr. for the defendant.

KIRKMAN, J. This is a suit in replevin, brought pursuant to Chapter 247, § 7 of the General Laws, of a dog the defendant found on a beach in Aruba. The plaintiffs claimed they owned the dog. But after two days of trial, a Justice of the District Court did not believe the plaintiffs' testimony and let the sleeping dog lie. The trial judge found the following.

In October, 2014, the defendant, Lisa-Marie O'Connell ("O'Connell"), traveled from her home in Massachusetts with her family for a vacation in Aruba. On October 26, she and her family went to a beach where they encountered two dogs. One, which she later named "Coco," was dehydrated and in distress. O'Connell removed approximately a dozen ticks from the dog. She also noticed that the dog's pads were red, its legs were scarred, and it had no collar or other identification. There were no veterinary clinics open that day to provide any further assistance to O'Connell.

Over the next couple of days, the two dogs were seen roaming the beach by others, and on October 28, 2014, O'Connell saw Coco again and removed more ticks. She subsequently took the dog to a veterinarian for medical care. The veterinarian noted there was no identifying information on the dog, such as a microchip, collar, or tag.

O'Connell had previously adopted a dog through the Bahamas Humane Society and, based on her experience, knew that there is a problem on tropical islands with stray and feral dogs. She contacted the Aruban Rescue Foundation ("ARF") and discussed the various options, including adoption, with a volunteer, Kathy Andreotollo ("Andreotollo").

The trial judge, in his findings, fully credited the testimony of Andreotollo that there is a severe problem with stray and feral dogs on Aruba that results in island authorities putting down approximately 8,000 dogs per year. Andreotollo stated her organization facilitates the adoption of about 150 dogs per year. Through the services provided by ARF and the veterinarian, O'Connell and her family took Coco home to Massachusetts on October 29, 2014.

After O'Connell returned home with Coco, the plaintiffs, Cornelia Hajdinyak ("Hajdinyak") and Howard E. Tromp ("Tromp"), who are neighbors in Aruba, contacted

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O'Connell and claimed that the dog, named "Whitey," was theirs and sought its return. When she refused the request for the return of the dog, suit was brought.

The trial judge credited Tromp's testimony that he had obtained the dog "at some point circa 2010 and thereafter provided medical care," but did not credit "the balance of his testimony." He also credited Hajdinyak's testimony that she paid for medical treatment to the dog in 2013, but discredited other testimony relating to her ownership of the dog. Essentially, the judge rejected any claim to ownership of the dog by either or both plaintiffs.

To recover in replevin, a plaintiff must prove "(1) the goods in question have a value greater than twenty dollars; (2) the goods are unlawfully taken or detained; and (3) the owner or person entitled to possession is deprived of the goods." Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 806 F. Supp. 291, 295 (D. Mass. 1992), vacated on other grounds, 4 F.3d 90 (1st Cir. 1993), citing G.L. c. 247, § 7. A party seeking replevin "must maintain his case on the strength of his own title or claim. It is immaterial whether the defendant has or has not any title, if the plaintiff fails to show any in himself." Davis v. Smith-Springfield Body Corp., 250 Mass. 278, 284 (1924), quoting Johnson v. Neale, 6 Allen 227, 229 (1863). The plaintiffs clearly failed to convince the trial judge of their ownership interest, and thus, the second and third prongs of the statute were not satisfied. [Note 2] Nevertheless, the plaintiffs claim that the judge erred in his findings of credibility and applied the wrong foreign legal standard.

"On appeal, we are bound by a judge's findings of fact that are supported by the evidence, including all inferences that may reasonably be drawn from the evidence." Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005). See also Commonwealth v. Hawkesworth, 405 Mass. 664, 670 (1989) ("[T]he standard for appellate review of facts in both civil and criminal cases is identical . . . ."). The judge's findings will be set aside only if clearly erroneous. Mass. R. Civ. P. 52(c). See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977).

"'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)." Commonwealth v. Wolcott, 77 Mass. App. Ct. 457, 471 n.12 (2010). See also Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015) ("[A]s our long-standing jurisprudence makes plain, in no event is it proper for an appellate court to engage in what amounts to independent fact finding in order to reach a conclusion of law that is contrary to that of a motion judge who has seen and heard the witnesses, and made determinations regarding the weight and credibility of their testimony."); Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) ("[C]redibility of a party or other witness who appeared at trial is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most

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compelling of showings."). In short, we defer to the judge's evaluation of a witness's credibility.

In the present case, the trial judge made detailed findings of fact that were prefaced by clear statements of whom and what he found credible. The plaintiffs' claims of ownership were entirely undercut by the defense witnesses' description of the dog's medical and physical condition as it wandered on the beach. The plaintiffs complain that their own testimony strains the "credulity" of the judge's findings. Yet the inferences the judge drew were reasonable in view of his credibility findings.

The trial judge carefully analyzed the testimony of each witness and articulated the inferences he drew in deciding that the plaintiffs did not prove ownership of the dog or the wrongful detention of the dog by the defendant. While the plaintiffs argued their ownership rested on their ongoing care of the dog, the judge based his decision on the condition of the dog when recovered by the defendant and as corroborated by an independent witness. The plaintiffs' argument before this Division, then, is nothing more than a request to make our own independent, and contrary, findings without having seen and heard the witnesses. We decline to do so.

Nevertheless, the plaintiffs assert that the trial judge failed to recognize a coownership agreement between the plaintiffs that was subject to the apostille procedure of an international convention. Because that procedure was followed, the plaintiffs appear to claim that the judge was precluded from finding the agreement invalid because it was self-authenticating. The plaintiffs cite only to the Massachusetts Secretary of State Web page that describes the procedure: http://www.sec.state.ma.us/pre/precom/ apostille_and_certification_information.pdf. [Note 3]

The apostille is a form of authentication of signatures to a document pursuant to an international convention. In this case, it is similar to a notary seal. That authentication, however, is not presumptive verification that the plaintiffs entered into an agreement binding on the trial court. In other words, the apostille only goes to verify a signatory was whom she or he claimed to be, and not the truth of the content of the document bearing a signature. Mass. R. Civ. P. 44. See Vanadium Corp. of Am. v. Fidelity & Deposit Co. of Md., 159 F.2d 105, 109 (2d. Cir. 1947). Moreover, the document at issue is not an official foreign government document as defined by Rule 44 (for example, a title to a motor vehicle); rather, it is an unofficial document (agreement of ownership) prepared by the plaintiffs. The mere fact that the plaintiffs may have agreed to shared ownership of the dog, does not establish that the dog is in fact owned by the plaintiffs. In other words, it is hearsay that was subject to challenge and rejection by the trial court on the grounds stated in the court's decision. In any event, given the trial judge's findings with respect to other facts of nonownership, his finding that the agreement was not valid for purposes of replevy was not clearly erroneous.

Finally, the plaintiffs claim that the judge misapplied Aruban law in finding:

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"[T]o the extent that the plaintiffs ever obtained legal ownership of Coco, that ownership was lost or surrendered when they neglected to provide the basic needs of the animal, thereby allowing her to become a stray under the [parties' competing interpretations] of Article 19, par. 1 [of the applicable Aruban law]." [Note 4]

The trial judge went on to state:

"Alternatively, I find that any such claimed ownership was relinquished when they [plaintiffs] allowed her [Coco] to gain her freedom . . . ."

Because of the trial judge's specific findings that the credible evidence lacked sufficient proof of Coco's ownership by the plaintiffs, there was no need for his further interpretation of Aruban law. But based on the facts he found that the dog presented as a stray and haggard, the judge committed no error in his interpretation of Aruban law. In sum, the plaintiffs may have had control of the dog at some point in its life, but there was insufficient credible evidence that they owned the dog at the time the defendant took possession of her.

Judgment affirmed.


[Note 1] Howard E. Tromp.

[Note 2] The plaintiffs have furnished no trial transcript, and the record is silent on the value of the dog. On this basis alone, it does not appear that the plaintiffs met their burden. But given the time and detail the trial judge gave to finding no ownership interest in the plaintiffs and no unlawful taking or detention of the dog by the defendant, we will address the issues that were joined for trial and appeal.

[Note 3] The plaintiffs included a copy of the cited Web page in their appendix to their brief. The defendant moved to strike that page as an impermissible exhibit. The plaintiffs cited the page in their brief to provide, at the least, a legal definition of a procedure they claim is binding. We see no problem with the inclusion of the page as an exhibit, and treat it the same as we would the inclusion of any other administrative regulation or even a page from a learned treatise. The defendant's motion to strike and for sanctions is, therefore, denied.

[Note 4] Book 5, Title 1, Article 19, par. 1 of the Aruban Civil Code provides: "1. The owner of domesticated animals lose their ownership when they came out of his control, and are haggard."