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23-P-73 Appeals Court
BRETT LYMAN vs. SASHA LANSER.
No. 23-P-73.
Middlesex. November 8, 2023. - March 7, 2024.
Present: Sacks, Brennan, & D'Angelo, JJ.
Dog. Animal. Tenants in Common. Injunction. Practice, Civil, Injunctive relief, Interlocutory appeal. Appeals Court, Appeal from order of single justice. Frauds, Statute of. Contract, Performance and breach, Construction of contract, Specific performance.
Civil action commenced in the Superior Court Department on June 24, 2022.
A motion for a preliminary injunction was heard by Shannon Frison, J.
A proceeding for interlocutory review was heard in the Appeals Court by Grant, J.
Jeremy M. Cohen (Robert D. Stewart also present) for the plaintiff. Philip A. Bongiorno for the defendant.
SACKS, J. The plaintiff brought this Superior Court action
against his former romantic partner, the defendant, seeking
specific performance of an agreement to equally share possession 2
of their jointly-owned property, a Pomeranian dog named Teddy
Bear. The plaintiff alleged that Teddy Bear is a "specific and
unique chattel." The plaintiff sought, and a motion judge
issued, a preliminary injunction requiring the defendant to
share Teddy Bear with the plaintiff for alternating two-week
periods. The defendant sought relief from a single justice of
this court, arguing that, although the dog was coowned, the
judge had no authority to order "shared custody" of a dog. The
single justice vacated the preliminary injunction, concluding
that the motion judge had improperly treated Teddy Bear as if he
were the parties' child. The plaintiff appealed the single
justice's order to this court. We conclude that there was
insufficient basis to vacate the preliminary injunction, and
therefore we reverse the single justice's order.
Background. We draw our summary of facts from the verified
complaint and the plaintiff's affidavit in support of his motion
for a preliminary injunction; the defendant submitted no
evidence in opposition.1 At the time the parties met in 2016,
the plaintiff and a previous romantic partner coowned a
Pomeranian dog and shared possession of him on an alternating
1 Attached to the defendant's memorandum in opposition was a certificate indicating that she had registered Teddy Bear as an emotional support animal in an Internet database. The certificate was dated November 30, 2021, which was after the parties' breakup. 3
basis. The plaintiff and the defendant "loved" that dog and
found it hard to have him only part time. They decided to buy
their own Pomeranian that they "could share together."
The parties agreed that if they acquired a dog and then
later separated, they would share the dog equally. In June of
2018, they purchased a male Pomeranian puppy and named him Teddy
Bear Lanser-Lyman. Although the ownership registration form
bore only the plaintiff's name, the parties evenly split the
cost of buying Teddy Bear. During the time the parties remained
together, they continued to share the responsibility of caring
for and training Teddy Bear, although the plaintiff asserted
that he bore a significant majority of the costs, spending about
$8,000 during that time.
In the summer of 2021, the parties' relationship ended, and
the defendant moved out of their shared residence. The parties
"communicated regularly about [their] intended plan to share
Teddy Bear on an approximately equal basis." They sent text
messages to each other "to work out as many details as possible
to set up a predictable routine" for sharing him. In early
August the defendant proposed that they exchange possession of
Teddy Bear approximately every week, and it appears they
exchanged possession of him several times that month and the
next. Until January of 2022, the parties shared the dog
amicably, although the amount of time that the plaintiff had 4
possession of Teddy Bear steadily decreased, in part due to the
plaintiff's conflicting family obligations.
In January of 2022, the defendant moved to a different
apartment, and so the parties agreed to temporarily suspend
their sharing arrangement to allow Teddy Bear to adjust to the
defendant's new home. This temporary suspension continued until
March of 2022 when, according to the plaintiff, the defendant
cut off all communication with him and refused to allow him
access to Teddy Bear.
The plaintiff then commenced this action for conversion and
breach of contract. Expressly disclaiming any request for
damages, the plaintiff, in his verified complaint, sought only
equitable relief, including specific performance of the parties'
agreement to equally share possession of Teddy Bear.
The plaintiff moved for a preliminary injunction to restore
his asserted joint ownership and possessory rights to the status
quo that existed before the defendant refused him access to
Teddy Bear. He argued that although "the law regards . . . dogs
as property, dogs are property of a distinctive type and nature,
living creatures with distinct personalities and [a] finite life
span, clearly distinguishable from inanimate personal property."
He asserted that the defendant's actions were causing him
irreparable harm, in the form of the loss of Teddy Bear's
companionship, which could not be remedied by money damages. 5
After a hearing, the motion judge credited the plaintiff's
evidence of a binding agreement for shared possession. She
found that "[t]he parties each paid half of the price of the
dog, expressed intent to share custody even if they separated,
and acted on that agreed/shared custody until Jan[uary] 202[2]."
Her preliminary injunction, referring to "the property known as
Teddy Bear," ordered that "[b]ased upon joint ownership rights,
both parties shall be allowed to have Teddy Bear for alternating
[two]-week periods. Beginning on [November 27, 2022], Teddy
Bear will be exchanged at a mutually agreeable location for each
exchange (Sunday-Sunday)."
The defendant then petitioned a single justice of this
court for relief from the preliminary injunction. See G. L.
c. 231, § 118, first par. The single justice acknowledged as
undisputed that the parties had equally split the cost of
purchasing the dog and agreed to co-own him. The single justice
nevertheless found no Massachusetts authority for treating a
dog, which is personal property, as unique, such that an order
for specific performance of their sharing agreement could be
appropriate. The single justice noted a distinction between
specific enforcement of written contracts concerning real
property and an oral contract concerning personal property.
The single justice concluded that the motion judge abused
her discretion by "effectively treat[ing] the dog . . . as if it 6
were the parties' child," instead of as personal property. The
single justice therefore vacated so much of the preliminary
injunction as required the parties to alternate possession of
Teddy Bear.2 The plaintiff then appealed to this court. See
G. L. c. 231, § 118, second par.
Discussion. 1. Standard of review. When we review a
single justice's order issued under G. L. c. 231, § 118, first
par., "[t]he essential legal question" before us is "whether the
single justice abused [her] discretion by entering an order
without having a supportable basis for doing so" (citation
omitted). Aspinall v. Philip Morris Cos., 442 Mass. 381, 390
(2004), S.C., 453 Mass. 431 (2009). "Answering that question,
however, requires examination of the trial [court] judge's
order," because:
"[t]he single justice is not a fact finder and must accept any relevant facts found by the judge when those facts have support in the record. Considerable deference is also required on the part of the single justice to determinations by the judge, especially where those determinations involve an exercise of discretion. In most cases, based on the deference normally accorded determinations by the judge who heard the matter in the first instance, the single justice will decline to act on an application for relief under G. L. c. 231, § 118, first par., that does not disclose clear error of law or abuse of discretion." (Quotation and citation omitted.)
Id.
2The single justice left in place those parts of the preliminary injunction barring the defendant from transferring ownership of Teddy Bear or removing him from the Commonwealth. 7
The motion judge, in turn, was governed by the familiar
preliminary injunction standard:
"To succeed in an action for a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the plaintiff's likelihood of success on the merits, the risk of irreparable harm to the plaintiff outweighs the potential harm to the defendant in granting the injunction. . . . When . . . a party seeks to enjoin governmental action, the court also considers whether the relief sought will adversely affect the public." (Citation omitted.)
Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass.
217, 219 (2001). "At the preliminary injunction stage, an
appellate court will not reverse the action of the motion judge
if there is a supportable legal basis for that action." Boston
Harbor Commuter Serv., Inc. v. Massachusetts Bay Transp. Auth.,
46 Mass. App. Ct. 122, 123 (1999). Of course, "[i]f the basis
on which the preliminary injunction was issued is wrong as a
matter of law, the preliminary injunction cannot be sustained."
Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212 (1997).
2. Likelihood of success on the merits. As already
stated, there is no dispute that the parties jointly own Teddy
Bear. Domestic animals are personal property, see Irwin v.
Degtiarov, 85 Mass. App. Ct. 234, 237 (2014), and may be owned
by a tenancy in common,3 see Goell v. Morse, 126 Mass. 480, 481
3 Personal property also may be owned through a joint tenancy or through a tenancy by the entirety. See Marble v. 8
(1879) (parties who each contributed to purchase price "were the
owners as tenants in common of the horse").
a. Existence of agreement. The motion judge, having found
that the parties evenly split the purchase price of Teddy Bear,
"expressed intent to share custody even if they separated, and
acted on that agreed/shared custody" for some months after their
separation, could view the plaintiff as having stated a
meritorious claim for breach of a contract to equally share
possession of Teddy Bear.4 There is no doubt that tenants in
common may make an agreement governing their respective rights
in personal property. To be sure, our case law most often
Jackson, 245 Mass. 504, 507 (1923). Absent any contrary indication, it could be presumed that the parties owned Teddy Bear as tenants in common rather than as joint tenants. Cf. Battle v. Howard, 489 Mass. 480, 484–485 (2022) ("unless the intent to create a joint tenancy is clearly expressed, a deed or devise will be treated as creating a tenancy in common"). This case does not require us to determine whether the parties own Teddy Bear as tenants in common or as joint tenants.
4 The judge did not address the plaintiff's conversion claim, and we need not do so either. Because the issue may arise in further proceedings in the trial court, we do address one limited aspect of the defendant's response to that claim -- that one coowner cannot seek a remedy for conversion by the other, "since both are equally entitled to possession and the possession of one is the possession of both." Johnson v. Nourse, 258 Mass. 417, 419 (1927). Cf. Jarvis v. De Peza, 251 Mass. 447, 448 (1925) (similar, in replevin action to obtain possession of jointly owned car). These cases have no apparent application to a claim against a coowner seeking specific performance of an agreement to share possession of property in a particular manner. Cf. Goell, 126 Mass. at 482 (where tenants in common agreed neither party should sell horse without other's agreement, sale by one was conversion). 9
addresses agreements governing the parties' rights to transfer
ownership interests in such property. See Goell, 126 Mass. at
482 (proceeds from sale of horse); Somerby v. Buntin, 118 Mass.
279, 287 (1875) (patent); Clark v. Flint, 22 Pick. 231, 241
(1839) (brig). We see no reason, however, why tenants in common
may not make enforceable agreements regarding their rights vis-
à-vis each other to possess and use their property. See
Somerby, supra (oral agreement to hold letters patent jointly
could be enforced through order for specific performance). Cf.
Tucci v. DiGregorio, 358 Mass. 493, 497 (1970) (if tenants in
common of premises including two-family house could not agree
that each would occupy a particular half of premises, it could
be partitioned under G. L. c. 241). At this preliminary
injunction stage, at least, the defendant has offered no such
reason.
That the claimed agreement here is lacking in detail is not
fatal to the plaintiff's likelihood of success on the merits.
Although "[a] contract must be complete and definite to support
a decree for specific performance, . . . a contract embodying
all the material factors for the accomplishment of a transaction
undertaken by the parties is not incomplete or indefinite
because it fails to express in terms some matters concerning the
performance of the contract and reasonably necessary for the
attainment of its object." Shayeb v. Holland, 321 Mass. 429, 10
430 (1947). For example, even where a contract does not
expressly state "an essential element" such as the purchase
price of real estate, the contract may reasonably be interpreted
to require "a fair and reasonable price." Id. at 432.
Here, the plaintiff stated in his affidavit supporting his
motion for a preliminary injunction that the agreement was to
"share Teddy Bear on an equal basis" in the event the parties
separated. Such an agreement might be interpreted to require
that possession be shared in a reasonable manner. The record
indicated that the parties had successfully shared possession of
Teddy Bear for many weeks. Thus, the judge preliminarily
ordered that Teddy Bear be exchanged every two weeks on Sunday,
at a mutually agreeable location. Moreover, in further
proceedings, the plaintiff may be able to establish additional
terms of the agreement. The judge did not abuse her discretion
or otherwise err in concluding that the plaintiff had a
likelihood of success on his contract claim.
b. Availability of specific performance. Agreements
regarding personal property ownership may be specifically
enforced. "Equity will specifically enforce a contract relating
to chattels, if the remedy at law for damages would be
inadequate, and grant relief for delivery of a thing wrongfully
withheld." Dahlstrom Metallic Door Co. v. Evatt Constr. Co.,
256 Mass. 404, 415 (1926). See Poltorak v. Jackson Chevrolet 11
Co., 322 Mass. 699, 700 (1948) (specific performance available
for contracts for sale of chattels where damages for breach are
not equivalent of promised performance). See also Somerby, 118
Mass. at 287. Actions for specific performance are within the
Superior Court's general equity jurisdiction under G. L. c. 214,
§ 1. See Derby v. Derby, 248 Mass. 310, 313-314 (1924);
Somerby, supra (construing predecessor statute, Gen. Sts.
c. 113, § 2). See also G. L. c. 214, § 1A (remedy in damages
does not bar action for specific performance if damages would
not provide equivalent of performance).
It is no bar to specific performance that an agreement is
not in writing. "Even oral contracts will be specifically
enforced, when the case is not within the statute of frauds, and
no complete and adequate remedy can be had by an action at law."
Somerby, supra. See Derby, 248 Mass. at 313–314. Contrary to
the defendant's Statute of Frauds argument here, the claimed
agreement to share Teddy Bear equally in the event the parties
separated was capable of performance within one year. "The
Statute of Frauds applies only to contracts which by their terms
cannot be performed within the year. It does not apply to
contracts which may be performed within, although they may also 12
extend beyond, that period" (quotation omitted). Boothby v.
Texon, Inc., 414 Mass. 468, 479 (1993).5
Nor was the motion judge's implicit determination that the
plaintiff had no adequate remedy at law a "clear error of law or
abuse of discretion." Aspinall, 442 Mass. at 390. No doubt,
specific performance of contracts relating to personal property
is the exception rather than the rule, because a damages remedy
usually suffices. "The reason is, that, in regard to most
articles of personal property, the commodity and its market
value are supposed to be substantially equivalent, each to the
other, so that they may be readily interchanged." Jones v.
Newhall, 115 Mass. 244, 248 (1874). The party left without
possession obtains damages and, "with his money, may obtain
similar goods . . . presumably at the market price." Id.
However, "[i]f the character of the property be such that the
loss of the contract will not be fairly compensated in damages
based upon an estimate of its market value, relief may be had in
equity, whether it relates to real or to personal estate." Id.
at 248–249.
5 In Boothby, the Statute of Frauds was inapplicable because the plaintiff's contract for permanent employment "could have been performed within one year: [the plaintiff] could have died or Texon could have discontinued its business, at which point its obligation to employ [the plaintiff] would end." 414 Mass. at 479. 13
We have previously recognized that, although a domestic
animal is property, its market value does not always fairly
measure its value to its owner. See Irwin, 85 Mass. App. Ct. at
235, 237-238. In Irwin, we held that the measure of damages for
injury to a domestic animal may include, in addition to its
"market value or replacement cost," those reasonable veterinary
expenses reasonably incurred in treating the animal. Id. at
238, citing Atwood v. Boston Forwarding & Transfer Co., 185
Mass. 557, 558–559 (1904). The factors relevant to the
reasonableness of such expenses include the animal's "age and
special traits or skills," "whether it was maintained as part of
the owner's household," and "the owner's affection for the
animal." Id. at 239. Implicit in these factors is the
recognition that a domestic animal's value to its owner, and
thus the amount of expenses for veterinary care that the law
views as reasonable, may increase based on the animal's special
role in the owner's household,6 although "the owner cannot
recover for his or her own hurt feelings, emotions, or pain" or
"for the loss of the animal's companionship or society." Id.,
6 The Legislature, too, has recognized the special place that domestic animals may occupy in a household. Under G. L. c. 209A, § 11 (a), a court issuing an abuse prevention order under G. L. c. 209A, a harassment prevention order under G. L. c. 258E, or similar orders under other statutes "may order the possession, care and control of any domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to the plaintiff or petitioner." 14
citing Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 423 (2002).
But Irwin, supra, (a strict liability action) and Krasnecky,
supra, (a tort action) involved duties imposed by law, whereas
here we deal with a claim for breach of a duty voluntarily
assumed by parties to a contract, the very object of which was
to obtain an animal's companionship.
"In determining whether the remedy in damages would be
adequate," one significant factor is "the difficulty of proving
damages with reasonable certainty." Restatement (Second) of
Contracts § 360 (1981). "Some types of interests are by their
very nature incapable of being valued in money. Typical
examples include heirlooms, family treasures and works of art
that induce a strong sentimental attachment." Id. at comment b.
"Contracts may be specifically enforceable because they involve
a grandfather's clock, even though it will not run, a baby's
worn-out shoe, or faithful old Dobbin the faithful horse whose
exchange value in the market is less than nothing." Restatement
(First) of Contracts § 361 comment e (1932). See Sanford v.
Boston Edison Co., 316 Mass. 631, 635 & n.1 (1944), S.C. 319
Mass. 55 (1946) (collecting cases illustrating Supreme Judicial
Court's "broadening tendency in applying the remedy of specific
performance").
Under these principles, the motion judge reasonably could
have concluded, at least as a preliminary matter, that a damages 15
remedy for the defendant's breach of her agreement to equally
share Teddy Bear would be inadequate to compensate the plaintiff
for the loss of his equal possession. Whether that possession
is described as involving the companionship of Teddy Bear (the
term "use" being better suited to inanimate objects), or instead
his "shared custody" (a phrase that understandably concerned the
single justice and might better be avoided when discussing
animals), does not seem dispositive. Although the motion judge
used the phrase "shared custody," nothing in her order treated
Teddy Bear as a child. Nor should anything in our decision be
construed as altering the status of pets in divorce proceedings.
The judge's order is supported by settled principles of property
and contract law, even if there is little precedent for
combining them to apply to a pet dog.7
3. Balance of harms. Although the motion judge did not
expressly discuss the balance of harms, focusing instead on the
viability of the plaintiff's contract claim, the judge
reasonably could have concluded that the irreparable harm to the
plaintiff, considered in light of his likelihood of success on
the merits, outweighed the harm to the defendant. The
7 But see Houseman v. Dare, 405 N.J. Super. 538, 542-543 (App. Div. 2009) (specific performance available to enforce plaintiff's agreement entered into with former boyfriend after relationship ended, that plaintiff would own and possess dog they had jointly purchased and owned while engaged). 16
plaintiff's verified complaint and affidavit stated, among other
things, that he was "losing the value of his investment of time,
money, [and] emotional support of Teddy [Bear] each day that
[his] exercise of ownership and possessory rights to Teddy Bear
is wrongfully denied." It was a reasonable inference from the
other facts asserted by the plaintiff that he had an "owner's
affection for the animal," which "may be considered" in
determining what relief is appropriate. Irwin, 85 Mass. App.
Ct. at 239. The plaintiff sought not to deprive the defendant
altogether of her possessory rights but only to possess the dog
on an equal basis with her. Despite the defendant's unsworn
assertion that Teddy Bear was her registered emotional support
animal, she offered no evidence that ordering her to share
possession of Teddy Bear equally during the pendency of the
action would cause her more harm than it would avoid for the
plaintiff.
4. Public interest. Because this case does not involve a
request for a preliminary injunction by or against the
government, the public interest in its usual sense is not a
significant factor. Cf. Tri-Nel Mgt., Inc., 433 Mass. at 219;
Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984).
Nevertheless, one additional factor affecting the propriety of
specific performance deserves mention: the burden that ongoing
enforcement of pet-sharing agreements might place on our courts. 17
It is not difficult to foresee that disputes between joint pet
owners, particularly those whose relationships have ended, could
become acrimonious and require the commitment of substantial
judicial resources over a protracted period of time. It might
well be questioned whether the courts should allow themselves to
be drawn into such matters.
This potential drawback of the remedy of specific
performance is nothing new. Nearly a century ago the Supreme
Judicial Court recognized that "[s]pecific enforcement will not
be decreed if the performance is of such a character as to make
effective enforcement unreasonably difficult or to require such
long-continued supervision by the court as is disproportionate
to the advantages to be gained from such a decree and to the
harm to be suffered in case it is denied." McCormick v.
Proprietors of the Cemetery of Mt. Auburn, 285 Mass. 548, 551
(1934), quoting Restatement (First) of Contracts § 371 (1932).8
See Sanford, 316 Mass. at 634 (availability of specific
performance remedy depends in part on whether it will involve
substantial practical difficulties).
8 This principle has been carried forward in the Restatement (Second) of Contracts. "A promise will not be specifically enforced if the character and magnitude of the performance would impose on the court burdens in enforcement or supervision that are disproportionate to the advantages to be gained from enforcement and to the harm to be suffered from its denial." Restatement (Second) of Contracts § 366 (1981). 18
For somewhat similar reasons, the courts of other States,
when confronted with pet disputes in the divorce context, have
traditionally resisted ordering shared custody of or visitation
with jointly owned pets and instead have treated pets as
personal property that must be awarded to one spouse or another.
See 2 B.R. Turner, Equitable Distribution of Property § 6:109
(4th ed. 2024), and cases cited. See also Annot., Divorce and
Separation: Custody Disputes Concerning Pets, 104 A.L.R. 6th
181 (2015). "Determinations as to [pet] custody and visitation
lead to continuing enforcement and supervision problems . . . .
Our courts are overwhelmed with the supervision of custody,
visitation, and support matters related to the protection of our
children. We cannot undertake the same responsibility as to
animals." Bennett v. Bennett, 655 So. 2d 109, 110–111 (Fla.
Dist. Ct. App. 1995). "The extension of an award of possession
of a dog to include visitation or joint custody -- components of
child custody designed to keep both parents firmly involved in
the child's life -- would only serve as an invitation for
endless post-divorce litigation, keeping the parties needlessly
tied to one another and to the court." Travis v. Murray, 42
Misc. 3d 447, 460 (N.Y. Sup. Ct. 2013).9
9 The Travis court adopted a "best for all concerned" standard for deciding which divorcing spouse should be awarded ownership of the parties' pet. Travis, 42 Misc. 3d at 460. The 19
In this case, however, the judge was asked not to determine
whether the parties should share possession of Teddy Bear, but
merely to enforce, on a preliminary basis, the parties' own pre-
existing agreement for shared possession. Although the
potential for acrimony and disputes over minor details of shared
possession remains, the most difficult decision, according to
the plaintiff's as yet unrebutted evidence, had already been
made by the parties themselves and carried out over a period of
some months. We cannot say that the judge abused her discretion
in ordering specific performance here. But it is within the
judge's discretion to revisit that decision if further
proceedings or the parties' actions suggest that the burdens of
such enforcement on the court are disproportionate to the
benefits. See Lawless v. Melone, 350 Mass. 440, 443 (1966)
(specific performance of joint venture should not be ordered
where history of litigation presaged unsatisfactory and
unworkable arrangement); Westinghouse Broadcasting Co. v. New
England Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 74-
Travis case has been characterized as reflecting "a degree of movement away from the traditional position that pets are no different from other forms of property." 2 B.R. Turner, Equitable Distribution of Property § 6:109 (4th ed. 2024). Under a statute taking effect in 2021, New York matrimonial courts, "in awarding the possession of a companion animal," were required to "consider the best interest of such animal." N.Y. Dom. Rel. Law § 236(B)(5)(d)(15). See L.B. v. C.C.B., 77 Misc. 3d 429, 435-436 (N.Y. Sup. Ct. 2022). 20
75 (1980) (agreeing with judge's "reluctance to order the
plaintiff and defendant into an uneasy harness" [quotation
omitted]).
Specific performance in these circumstances is a matter of
discretion. Where specific performance is unwarranted or
infeasible, other remedies remain, including a damages remedy
(albeit not fully adequate) for breach of the agreement, and
even an equitable remedy in the nature of partition to free the
parties of the burdens of continued joint ownership. See
G. L. c. 214, § 3(3) (granting Supreme Judicial and Superior
Courts jurisdiction of "[a]ctions between joint owners of
personal property . . . to order a division or sale thereof and
make and order a proper distribution of the proceeds"). See
also Tucci, 358 Mass. at 497 (partition proceeding available if
tenants in common could not agree on use of property).
Conclusion. The order of the single justice vacating the
preliminary injunction is reversed, and a new order shall enter
denying the defendant's petition for relief from the preliminary
injunction.10
So ordered.
10 The defendant's request for costs and attorney's fees is denied.