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  • April 18, 2024

    Court of Appeals Settles Dog Ownership Dispute in Favor of Original Owner

    A circuit court did not err in returning a poodle to its original owner in a replevin action, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    Seen In Black And White, A White Poodle Lying On A Couch Next To Its Owner, With The Owner's Arm Draped Around the Dog

    April 18, 2024 – A circuit court did not err in returning a poodle to its original owner in a replevin action, the Wisconsin Court of Appeals has ruled.

    In Voegtline v. Bannach, 2023AP2022 (April 9, 2024), the Court of Appeals (District II) held that the circuit court’s decision was justified by original owners’ uncontroverted testimony regarding ownership and the resemblance between her dog and defendant’s dog.

    In 2012, Leola Voegtline bought Marley, a black-and-white toy poodle puppy for $300 on Craigslist.

    In September 2018, Voegtline’s husband John left the fence gate unlatched while he did yard work at the couple’s house in Milwaukee.

    Shortly thereafter, Voegtline realized that Marley was gone. Voegtline, her husband, her daughter, her son-in-law, and her grandson scoured the neighborhood searching for Marley, to no avail.

    Voegtline hadn’t obtained a license for Marley, and the dog was neither microchipped nor tattooed for purposes of identification. Marley was wearing a collar when he disappeared, but the collar had no tag.

    Voegtline posted flyers along Oklahoma Avenue, from 43rd Street to 92nd Street. She also contacted Lost Dogs of Wisconsin and put up a flyer at the Milwaukee Area Domestic Animal Control Commission.

    Rainy Rescue

    One rainy day around the time Marley disappeared, Brian Bannach was driving with his father Clarion Brannach near West Cold Spring Road and South 84th Street in Milwaukee – an area close to the Voegtlines’ house.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The two men spied a bedraggled dog huddled in the oncoming lane of traffic. They pulled over and picked up the dog, then took him to the Loomis Road Animal Hospital.

    A hospital employee told Brian Bannach that the hospital would put out an alert on the dog with the Milwaukee Area Domestic Animal Control Commission (MADACC).

    The employee said that if there were no response to the alert within four months, whomever found the dog could keep it.

    The Bannachs were never notified of any response to the alert, so they kept the dog. They named him Reggie.

    Marley Found?

    On June 1, 2023, Ramos was with her son at a playground when she looked across the street and saw Clarion Bannach with a dog that looked like Marley.

    Ramos walked over to Bannach and asked if he’d found the dog on Oklahoma Avenue. Bannach said he’d found the dog on 90th Avenue.

    Bannach said the dog’s name was Reggie. Ramos showed Bannach videos on her phone that showed Marley. Bannach didn’t agree that the dog in the videos looked like Reggie.

    The dog whined and seemed happy to see Ramos. Ramos offered to exchange contact information with Bannach, but he declined.

    Marley Restored

    Later in June 2023, Voegtline filed a small claims action against Bannach in Milwaukee County Circuit Court, seeking the return of her dog.

    Bannach responded by asking for discovery that proved Voegtline’s ownership of Marley. She produced a veterinary record from 2016 that referred to a black-and-white toy poodle born in 2012 and named Marley.

    The case went to trial.

    The circuit court heard testimony from Voegtline, her husband, daughter, and Brian Bannach. The court also compared photographs of Marley and Reggie.

    The circuit court ruled that the Bannach’s dog was Marley, based on the following: 1) the markings on the two dogs in the photographs were identical; and 2) the Bannachs found the dog in an area close to where Marley had gone missing.

    The circuit court issued a judgment of replevin in Voegtline’s favor.

    Bannach filed a motion for relief from judgment; the circuit court denied the motion.

    Bannach appealed.

    ‘Companions and Playmates’

    Chief Judge Maxine White decided the appeal pursuant to Wis. Stat. 752.31(2)(a).

    In an unpublished opinion, White pointed that under Wisconsin Supreme Court case law, courts “consider [dogs] ‘companions and playmates … protectors of life and property, [that] generally manifest human instincts and emotions in a very marked degree.”

    White then explained that to prevail on her claim for replevin, Voegtline had the burden of proving that: 1) she was entitled to possession of the dog; and 2) Bannach had unlawfully detained the dog.

    Judge White concluded that the circuit court had not erred by concluding that Voegtline met the first prong of the test.

    White acknowledged that Voegtline didn’t have a receipt for her purchase or a municipal license or microchip.

    However, she wrote, “[t]here was no evidence that contradicted or undermined Voegtline’s testimony about purchasing Marley from Craigslist.”

    Reggie is Marley

    Judge White explained that determining whether Voegtline had met her burden on the second prong required the court to determine whether Marley and Reggie were the same dog.

    She concluded that they were, given the resemblance of the dogs depicted in the photographs and the proximity of the location where the Voegtlines lost Marley and the location where the Bannachs found Reggie.

    “It is unlikely that there would be two dogs of similar breed, age, sex, coloration, and markings both lost and found in roughly the same time and location, in light of only one dog being now identified,” White wrote.

    Too Late for New Argument

    On appeals, Bannach argued for the first time that Voegtline had lost legal ownership of Marley because she didn’t claim the dog within five days of the alert posted by MADACC – a claim apparently linked to section 173.19(1).

    Under that statute, a political subdivision or an entity or person that a political subdivision contracts with for animal care may treat as unclaimed any animal that remains unclaimed within four days of being taken into custody.

    But Judge White pointed out that Court of Appeals caselaw, an issue not raised in the circuit court is generally not to be considered on appeal.

    “Bannach had sufficient opportunity to develop this argument in the replevin hearing and in the hearing on his motion for relief for judgment, but failed to do so,” White wrote. “We decline to address this argument further.”

    The Court of Appeals affirmed the circuit court’s judgment.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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