Full Case Name:  Chantelle Heath WEBB, Appellant, v. Susan AMTOWER and Doug Amtower, Appellees

[*1] Chantelle Heath Webb appeals the district court’s grant of summary judgment to Susan Amtower and Doug Amtower on replevin and conversion claims. Webb, who lost her dog in Hurricane Katrina’s destruction of Gulfport, Mississippi, alleges the Amtowers, of Overland Park, Kansas, now wrongfully possess her dog. We reverse and remand.

The Amtowers made three arguments in support of their motion for summary judgment. First, they asserted the dog in their possession is not Webb’s dog. The district court considered the uncontroverted facts, noting they “weighed heavily in favor” of that claim but concluded it was unable to determine whether the dog Webb knew as “Buddy” is the same dog the Amtowers call “Alfalfa.” Second, the Amtowers claimed that Webb had abandoned her dog. After noting “some evidence” in contravention of that claim, the district court concluded summary judgment was not appropriate on that basis.

Finally, the Amtowers asserted they had lawfully adopted the dog. The district court agreed, and held that, even considering facts in Webb’s favor, she nevertheless lost ownership of the dog by operation of law.

Uncontroverted Facts and Conclusions of Law

Some of the district court’s findings of uncontroverted fact are relevant here:

“1. The dog in question was in the emergency animal shelter in Hattiesburg, Mississippi, and was subsequently transferred to the [Humane Society of Escambia County (HSEC) ] in Alabama. 
.... 
“4. On October 8, 2005, [Susan] Amtower adopted the dog. The certificate of adoption indicates [Susan] Amtower would foster the dog thru 10/30/05, with adoption on 11/1/05. The certificate is signed by Renee Jones, HSEC [a]doption agent.
“5. On October 31, 2005, the dog was examined by Wendy Noll, D.V.M., a licensed veterinarian.”

To this we add the agreed fact that the October 31, 2005, veterinarian examination occurred in Kansas.

For its conclusions of law, the district court presumed that the HSEC “would be aware of the applicable local laws and regulations regarding lost or stray animals.” Aside from an observation that “[the Amtowers] have cited ... Mississippi and Alabama law pertaining to the adoption or destruction ... of animals found running at large,” the district court did not identify or discuss any of the local laws or regulations under which the HSEC purportedly acted. Instead, the district court thought it “doubtful that the HSEC would not have knowingly allowed the adoption of one of the animals within its control, in violation of local law.” Accordingly, the district court granted summary judgment to the Amtowers. Webb appeals.

Discussion

Webb argues on appeal that she has ownership of the dog under Mississippi and Alabama law. The Amtowers respond that Mississippi law does not apply, and that the adoption is enforceable under Alabama and Kansas law.

“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues of the case. On appeal, the court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Korytkowski v. City of Ottawa , 283 Kan. 122, Syl. ¶ 1, 152 P.3d 53 (2007).

[*2] Our first task is to decide the applicable law. “To determine which state’s laws govern, the forum court uses its own choice of law methodology.” Resolution Trust Corp. v. Atchity , 259 Kan. 584, Syl. ¶ 3, 913 P.2d 162 (1996). Kansas law will generally apply unless it is shown that the law of another jurisdiction governs. Brenner v. Oppenheimer & Co. , 273 Kan. 525, 541, 44 P.3d 364 (2002).

Webb pled replevin and conversion. These are tort claims. See K.S .A. 60-1005; Ablah v. Eyman, 188 Kan. 665, 676, 365 P.2d 181 (1961); Millennium Financial Services, LLC v. Thole , 31 Kan.App.2d 798, Syl. ¶ 6, 74 P.3d 57 (2003). In tort claims, Kansas traditionally applies the “substantive law of the state where ... the injury was sustained. [Citation omitted.]” Dragon v. Vanguard Industries, Inc. , 277 Kan. 776, 785, 89 P.3d 908 (2004).

Any injury suffered by Webb was sustained in Kansas. Susan Amtower was in Kansas by October 31, 2005, and the “adoption” did not occur until the next day. Based on the record before us, only upon adoption did the Amtowers believe they possessed the dog to the exclusion of others, and it was only after the adoption that the Amtowers refused to deliver the dog to Webb.

In Ling v. Jan’s Liquors , 237 Kan. 629, 703 P.2d 731 (1985), a plaintiff was injured in Kansas by a minor to whom liquor had been wrongfully sold in Missouri. Our Supreme Court held Kansas law applied because the injury was sustained in this state. 237 Kan. at 634-35. In the present case, whatever wrong may have occurred in Mississippi or Alabama, the alleged injury was only sustained once the Amtowers exercised exclusive control, which occurred in Kansas. Accordingly, Kansas tort law applies.

Tort law is not the basis for personal property rights, however. See Brown v. Kleen Kut Mfg. Co. , 238 Kan. 642, 646, 714 P.2d 942 (1986). Webb’s right of recovery under both replevin and conversion depends on the strength of her title or right of possession. See Herl v. State Bank of Parsons , 195 Kan. 35, 39, 403 P.2d 110 (1965); McDowell v. Geist , 134 Kan. 789, 791, 8 P.2d 372 (1932). Webb may not recover under either replevin or conversion based on the weakness of the Amtowers’ title or right of possession. See Rauh v. Dumler , 170 Kan. 698, Syl. ¶ 1, 228 P.2d 694 (1951); McDowell , 134 Kan. at 791.

In granting summary judgment, the district court referred to Mississippi and Alabama animals running at large statutes, but Mississippi generally places control of such animals with counties and municipalities. See Miss.Code Ann. § 19-5-50 (2003); Miss.Code Ann. § 21-19-9 (2007). Even if this dog was picked up somewhere in Mississippi, the uncontroverted facts do not show where this occurred. It is, therefore, unknown what county or municipal law might apply. Our research did not reveal a state-wide Mississippi law which controls under the uncontroverted facts.

The dog was sheltered at Hattiesburg, Mississippi, but the status of that shelter is unknown. The evidence produced below included a United States Humane Society press release which did not refer to any governmental action. While it is true that “[p]roperty in dogs is of an imperfect or qualified nature and they may be subject to peculiar and drastic police regulations by the state,” Nicchia v. New York , 254 U.S. 228, 230-31, 65 L.Ed. 235, 41 S.Ct. 103 (1920), there is no way to tell from the uncontroverted facts whether police regulation by the state, or simply private initiative, was at work in the present case.

[*3] The only evidence of the dog’s presence in Alabama was its placement at the HSEC. Webb states on appeal that the “dog was moved out of the state of Mississippi-transferred by government officials to the state of Alabama.” The district court did not make this finding, however, and Webb bases this assertion on her affidavit recounting a telephone conversation with an unknown person at the Hattiesburg animal shelter to the effect that “Buddy had been moved to the [HSEC].” Not only was this hearsay, it did not purport to show who moved the dog, when it was moved, or why. We are unable to conclude from the uncontroverted facts whether the dog was “running at large” in Alabama.

The Amtowers contend that Webb lost her rights under Ala.Code § 3-7A-7 (1996), which allows an “impounding officer” to “make ... animals available for adoption after a period of not less than seven days.” The impounding officer is defined as “[a]n agent of a county or municipality vested with impounding authority for animals covered under this chapter.” Ala.Code § 3-7A-1(7) (1996). The statute applies to “county pound[s],” which it requires each county to provide for the “impoundment of dogs and cats found running at large in violation of the provisions of this chapter.” Ala.Code § 3-7A-7 (1996). There is no evidence, however, that the HSEC, an apparently private humane society, was a “county pound,” that Jones or anyone else at the HSEC was an “impounding officer,” or that the dog was actually running at large in Alabama.

The Amtowers also cite Section 4-90 of the Code of Ordinances for Brewton, Alabama, which is where the HSEC is apparently located. Section 4-90 provides that any animal “which has remained in a pound for seven (7) days and which has not been redeemed or retaken by the owner ... shall be sold or euthanized by the animal control officer.” Once again, no evidence established that the HSEC was Brewton’s “pound,” or that Jones or anyone else at the HSEC was an “animal control officer” under the meaning of this ordinance.

Finally, the Amtowers contend that the foster care/adoption was a contract, but the district court never found the existence of a contract, which is a question of fact. See Reimer v. The Waldinger Corp. , 265 Kan. 212, 214, 959 P.2d 914 (1998). The Amtowers suggest that we need not consider anything beyond the language of the adoption certificate, but the meaning of that document is unclear.

The Amtowers maintain, for example, that the adoption gave them “ownership rights” in the dog. The adoption certificate, however, memorialized a promise by Susan Amtower to “not sell this animal, give it away to another individual or use it for medical experimentation.” The adoption certificate next stated in bold type: “If circumstances become such that I cannot keep this animal, I agree to return it to HSEC. I will keep this pet properly confined on my property and not let it roam at large.” Immediately below this the adoption certificate stated in large bold type: “Failure to abide by any terms of this agreement will result in the forfeiture of the pet and the adoption fee.”

[*4] Because the adoption certificate purported to exclude resale and other indices of control, it was not conclusive evidence that the dog was sol d to Susan Amtower. Kansas and Alabama law agrees that upon sale a new owner generally may dispose of property at will. See Central Kansas Power Co. v. State Corporation Commission , 221 Kan. 505, 515-16, 561 P.2d 779 (1977); Howe v. Roberts, 209 Ala. 80, 81, 95 So. 344 (1923). The adoption certificate also requires forfeiture if the dog is used or treated contrary to the adoption certificate’s terms. This suggests a form of continuing control by the HSEC, which is difficult to reconcile with the Amtower’s assertion of ownership rights in Kansas.

The adoption certificate was, therefore, not a complete and unambiguous contract, as the Amtowers maintain on appeal. The meaning and legal effect of the document must be determined under the rules of construction. See Liggatt v. Employers Mut. Casualty Co. , 273 Kan. 915, 921, 46 P.3d 1120 (2002) (ambiguity of a written instrument is a question of law reviewed de novo). This may not be done on summary judgment given the number of disputed or unknown material facts. See City of Topeka v. Watertower Place Dev. Group , 265 Kan. 148, 154, 959 P.2d 894 (1988).

Webb, for her part, points to the Mississippi lost, stolen, or misplaced property law, Miss.Code. Annot. § 21-39-21 (2007). It is unclear whether that statute would apply here, but we need not decide the point. The only question before us is whether the Amtowers were properly granted summary judgment. Webb did not move for summary judgment below, and she does not request this court to enter judgment in her favor. Her request is “to be heard in District Court on the factual question,” which we believe is proper on this record.

We do not suggest that the Mississippi or Alabama laws discussed here are inapplicable to the resolution of this case. We only hold that the uncontroverted material facts were not sufficient to conclude, as a matter of law, that any of those laws were applicable. The district court, therefore, erred in granting summary judgment on the basis that Webb lost ownership of her dog by operation of law.

Reversed and remanded for further proceedings.