Gail Decorso v. Kathleen Saksa (2011)

MEMORANDUM OF DECISION RE APPLICATION FOR WRIT OF REPLEVIN

On May 26, 2011, the court conducted a full evidentiary probable cause hearing on the plaintiff's writ of replevin, applied for as a prejudgment remedy, seeking the immediate possession of “Anna,” a pit bull terrier.   In a replevin action, the court must compare the superiority and inferiority of competing rights to possess the animal.  Angrave v. Oates, 90 Conn.App. 427, 430, 876 A.2d 1287 (2005).   For a prejudgment writ of replevin, the plaintiff must establish probable cause that she will prevail on her action in order to obtain the immediate relief she requests.  General Statutes §§ 52–278a to 52–278f.  “The remedy [of replevin] is purely statutory.   The plaintiff must prevail by the strength of his title rather than by the weakness of the defendant's.   He must show an immediate right to possession of the property at the time of bringing the action.”  D'Addario v. Abbott, 128 Conn. 506, 508, 24 A.2d 245 (1941).

The plaintiff is self-represented.   The defendant is represented by counsel.   The following facts were found by a preponderance of the evidence.

During all relevant times, the plaintiff, Gail Decorso (Decorso) and the defendant, Kathleen Saksa (Saksa), shared a residence.   In December 2010, Decorso made an agreement for the purchase of Anna, because she felt Anna was not cared for properly.   The transfer of ownership was to occur in January 2011.   Subsequently, Anna's owner learned that Decorso had made complaints to the animal control department and refused to sell Anna to Decorso.   As both Decorso and Saksa were concerned for the welfare of Anna, Saksa met with the owner, who agreed to sell Anna to her.

Saksa purchased Anna for $250.00, receiving a receipt from the owner.   Saksa provided Anna with food, shelter, medical treatment, leashes, a muzzle, a crate and all other necessities.   Saksa walked Anna in the mornings and fed her twice a day.   Saksa paid to have Anna bathed.   Saksa also paid for a trainer and both parties worked with the trainer, Saksa more than Decorso.   Decorso took care of Anna while Saksa was at work and took Anna to her own job at various flea markets.   Eventually, Saksa became increasingly unhappy with the care provided by Decorso, including allowing Anna to come into contact with Saksa's two smaller dogs and allowing all the dogs to run loose.   Saksa began to take Anna to work with her to ensure Anna's safekeeping.

In February and March 2011, the relationship between Saksa and Decorso became increasingly contentious.   Decorso expressed a desire to remove herself and Anna from the home.   Unbeknownst to Saksa, Decorso recorded a conversation between the parties in which Decorso stated she wanted to take Anna with her.   Saksa stated Decorso could take Anna only if Decorso received training for herself and Anna and had a place to stay which would allow pit bulls.   Because of Decorso's stated intention of taking Anna, and her concern for the welfare of Anna, Saksa removed Anna from the home on April 5, 2011 and placed her in a kennel, where Anna will continue to reside until Decorso leaves the premises.   Shortly thereafter, Decorso obtained Anna's veterinary records under false pretenses and obtained a dog license, listing Decorso as owner of Anna. Immediately thereafter, Saksa obtained her own license.

Decorso next filed a complaint in two counts for replevin and conversion.   Additionally, Decorso filed the subject writ of replevin, seeking immediate possession of Anna.

In order to succeed on the writ of replevin, Decorso must establish probable cause that she “has a general or special property interest with a right to immediate possession” of Anna and that Anna is being “wrongfully detained” from her.  General Statutes §§ 52–515;  52–516(b).  “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false.  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).”  Scanlan Co. v. Construction Group, Inc., 80 Conn.App. 345, 350, 835 A.2d 79 (2003).

Upon consideration of the facts before it, the court does not find that the plaintiff, Gail Decorso, has shown probable cause that she has a general or special property interest with a right to immediate possession of Anna or that Anna is being wrongfully detained.   The defendant, Kathleen Saksa, bought the dog, paid for its care, food, medical treatment and incidental expenses.   While Decorso lived with the dog, so also did Saksa live with the dog.   While Decorso obtained a license stating she is the owner of Anna, she did so by obtaining the medical records of Anna under false pretenses.   Additionally, Saksa has a license indicating Saksa is the owner of Anna. While the court is sympathetic to the facts that Decorso discovered Anna, assisted in bettering Anna's circumstances and clearly loves this Anna, she has not shown any general or special property interest superior to that of Saksa.   The evidence is that Saksa has far greater rights of possession of Anna. The prejudgment application for a writ of replevin is denied.

Robert E. Young, Judge

Young, Robert E., J.