Author Archives: Tom Nicholl

pug dog photo

You have my animal, and I want it back!

Posted on by

This is known, in legal terms, as an action in Replevin.

Animals are considered property, and if another person has them illegally, you can get it back. Considering the nature of the property (a living animal), there are legal devices in place to resolve such matters promptly.

Common scenarios which arise are:

  • 1)animals caught in the middle of a divorce, live-in relationship,
  • 2)animals which go for breeding, treatment, or safe-keeping, and don’t come back,
  • 3)animals lost or adopted out, but subsequently found by original owner, and
  • 4)animals sold and paid for, but not given to buyer.

#1– I am breaking up–who gets the dog?

Irreparable breakdown of a romantic relationship. Ideally, the parties should work it out themselves. This usually works until there is a pet involved. Then, if fighting, it comes down to a property dispute – who owned it, who paid vet. bills, who paid other expenses, who took care of animal for most part – etc. Some courts are veering towards “best interest of the pet,” especially if the matter is part of a divorce in family court, and may be a factor also.

#2- I gave my dog to ______ for a temporary period of time and now they won’t give him/her back.

Get a written (and legal) contract. “Don’t worry about it, we will take care of everything” would be fine if everyone kept their word, but it is always amazing to me how two different parties remember a conversation so differently , or how one party suddenly gets amnesia. Get it in writing! For breeding, common terms are a fee and/or “pick of the litter.” Make quite clear whether there is any limitation on the registration / sale / location of any animals produced. Find out who goes where. If a person is too sick, and wants someone else to take care of animals, make sure agreement is in writing when he/she can get them back. Vets / boarding facilities, assuming they have an interest (as in unpaid bill), do have the right to keep your animal until paid.

#3- We just got a new pet, and now the original owner wants it back.

 Just like buying something in a pawn shop, property is presumed to have passed legally, and original owner has limited rights, The intermediate party does not have any liability, presuming he did not know the person had it illegally. Most formal adoption agencies have airtight contracts which absolve them of any liability once the animal is adopted. Then it falls to the original owner to prove that they have a right to the animal. Courts will consider a very specific I.D., and what was involved both before and after his “loss,” from the original owner, and how the new owner acquired it.

#4- I paid for it, now I want it.

NEVER waive your rights under the Florida Pet Lemon Law. It is not great for purchasers, but not bad, and if the seller wants to waive it, don’t do it. This seems to be more of a problem with horses. In any case, this is usually a breach of contract issue (you did get the agreement in writing, yes?). So, if the person materially breached the contract, you will win.

How do I do it?

In addition to a breach of contract claim, if applicable, you also have the right to get your stuff back (replevin). The claim must be submitted in a certain form, and certain assertions made, but the important ones are a specific description of the animal, and why you have a right to possess it..

The procedure varies somewhat depending on where you are, but usually there is a fairly quick hearing (within a month, which is recognized as being “quick” within the legal system) to make an initial finding of who is entitled to what. There may, (or may not, depending on where you file) be a final hearing on the matter some months down the road). There may (or may not, depending on where you file) be a requirement to post bond.

Can I do it myself?

Like everything else in the legal system, you can always do anything yourself (representing pro se is the Latin for “on behalf of yourself.”) However, it is a tedious process, requires precision, and also requires a Court appearance. If the other side is represented by an attorney, it may be like bringing a knife to a gunfight, If you mess it up, you can’t go again.

Next month the reverse, you have a dog/cat/horse, and you want to give it back.

I don’t want to go to trial…can’t we just make an agreement?

Posted on by

That is called “Mediation.”

Mediation is when the person who is filing a lawsuit and the person being sued meet and try to come to an agreement. The attorneys are there as well as a paid, impartial, neutral mediator. The mediator is in charge of the meeting and his/her job is to try to get both sides to come to an agreement. This happens before a full-fledged trial.

When can I have mediation for my case?

Mediation can be done even before the lawsuit is filed, and if both sides agree to it, they can just get together and try to work it out, without an attorney or certified mediator. HOWEVER, this often results in a shouting match. And you both are even further apart from agreeing to anything! If this happens, often a complaint is filed by the person who believes the other was in the wrong. If it is going to be in Small Claims Court, (for damages under $5000), the judge will order you to go to mediation, and there is a group of mediators generally on standby for the court that day.

If that does not work, and no agreement is made, then the case will be scheduled for trial.

Even if a lawsuit (complaint) is filed in a higher court, mediation may still be made as long as both parties agree. In higher courts there may be extensive “discovery” — in other words, finding out more about the case by questions, documents, admissions, depositions, etc. Usually mediation is more likely to be agreed to and successful, once this is complete.

Once a complaint is filed, eventually it will be ready for trial. There is usually a management conference where deadlines are set before trial, one of which is a date by which mediation must be completed.

Does it matter who the mediator is?

You, or your attorney, may have a preference for a particular mediator. Even though they are impartial, hou may like one’s working style better than another.

When do I have to book with the mediator?

Don’t wait until the last minute to schedule hour mediation. There are a few firms who are very good, abut that all are heavily booked, so expect to have to book it 2-3 months out.

How much does mediation cost?

Costs of mediation arise and are variable because of the mediators hourly rate and your own attorney (if any) fees (if any). The costs are split between sides. Most mediators have a 3 hour minimum, and get about $325 per hour. The longest one I was ever in was 14 hours (they brought in lunch and dinner) — but there were three claimants!

What do I have to do to prepare for mediation?

For a formal mediation, there is not need for a client to get nervous, because if you don’t want to say anything, don’t. The attorneys will give their statements of the case, and present the major factors in their favor. After this, each side goes to a different room, and the mediator goes back and forth, usually ferreting out the weaknesses in the case of the person bringing the claim, but also telling the other side his/er perceived strengths. You should have discussed everything with your attorney and family members, and have an idea of what you are prepared to accept.

Who decides on whether to accept the offer?

Hopefully an agreement is made, but remember it is ONLY your decision to make. You can rely on advice when making your decision but it is, nevertheless, yours, and only yours.

Why mediate?

Occasionally the people are so unshakable in their position that mediation is, indeed, futile. However, this is usually not so as long as unreasonable demands and offers are not made. If this is not so, mediation often succeeds by resolving the case more quickly, and also avoiding extensive costs and inconvenience of a trial. Unlike on television, where the whole process is squeezed into 1/2 hour to 1 hour, expect to spend 5 days sitting, spend about $25,000, and if you have witnesses, they need to be available also for the duration of their testimony. Remember also that just because a case eventually makes it on the court’s schedule (or docket), it does not mean it will be heard at that time, and if not, then it all starts again in 3 weeks.

Won’t I get more if I go to trial?

If you choose to roll the dice and spend the time and effort, it is usually true that you will get more if you go to trial. You must decide if the amount offered in mediation is worth the saving in time, expense and the risk of getting less or nothing.