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9th District reverses Stow court’s dog custody dispute
TRACEY BLAIR
Legal News Reporter
Published: October 4, 2021
The 9th District Court of Appeals has reversed a Stow Municipal Court’s judgment in a dispute over the ownership of a dog following the termination of a romantic relationship.
Colleen Eltibi and Kristin Kocsis adopted a dog from the Madison County Humane Society in 2015. Eltibi signed an adoption contract agreeing to transfer ownership of and responsibility for the care of the dog, Albus, back to the Humane Society if she was unable to keep the pet after a 14-day trial period.
Kocsis’ name and information did not appear on the adoption contract or paperwork, and she did not sign any of the adoption documents.
After Albus was adopted, the couple broke up, but had an arrangement by which both Eltibi and Kocsis were able to spend time with the dog independent of one another. However, in May 2020, Kocsis emailed Eltibi she would not be returning Albus and told Eltibi not to come onto the property where she and Albus were staying.
Eltibi filed a complaint for replevin in municipal court, seeking the return of the dog. Kocsis subsequently filed counterclaims alleging unjust enrichment and conversion.
The trial court denied Eltibit’s complaint for replevin. The appellate court recently reversed that decision, finding the judgment was based on insufficient evidence.
A Stow magistrate heard the case on Aug. 19, 2020. At the hearing, Eltibi testified she was the sole owner of Albus, that it was her idea to get a dog; she searched for a dog; and she was the sole person who signed Albus’ adoption documents.
Eltibi admitted Kocsis picked the dog’s name, and that she allowed Kocsis to spend time with Albus after the termination of their romantic relationship. In support of her argument regarding ownership, Eltibi provided the trial court with several documents, including the $130 receipt for the adoption fee. Only Eltibi’s name appeared on the receipt.
Eltibi also testified she had asked Kocsis to complete the paperwork for Albus’ registration on one occasion because she had to work. However, Eltibi said Kocsis registered Albus in her own name instead of Eltibi’s against her knowledge.
Meanwhile, Kocsis testified she was the owner of Albus. When asked why she did not sign the adoption documents, Kocsis testified she did not feel comfortable signing because Eltibi used a friend’s address on the documents to avoid dealing with her landlord. Kocsis also provided bank records indicating she had paid some expenses for Albus, including expenses from PetSmart and BarkBox. Kocsis also provided the trial court with some veterinary bills in her name.
Kocsis also testified she was in a new relationship, and when she would leave the state to visit her boyfriend, Eltibi became “retaliatory” towards her. This is when Kocsis decided not to return Albus to Eltibi.
Kocsis also claimed Eltibi hurt Albus on two separate occasions. Kocsis admitted she never witnessed Eltibi hurting Albus. Instead, Kocsis testified Eltibi told her over the phone that she hurt Albus by hitting him on the nose. Kocsis also alleged Eltibi told her that she had also once grabbed Albus by the scruff of his neck, causing him to yelp.
The magistrate found both Eltibi and Kocsis had actively participated in Albus’ care and ownership by contributing both time and money, and that the evidence and testimony established Albus was jointly owned by both women.
However, the magistrate was unable to conclude either party had a greater ownership interest in the dog than the other party, meaning neither party could prevail on her ownership claim. Therefore, the magistrate declined to have the pet returned to Eltibi.
The magistrate recommended judgment be awarded to Kocsis on Eltibi’s complaint for replevin, and Eltibi be awarded judgment on Kocsis’ counterclaims for unjust enrichment and conversion.
The trial court adopted the magistrate’s decision, including the finding that Eltibi and Kocsis were co-owners of Albus.
Under Ohio law, dogs are considered personal property. In order to prevail on a cause of action for replevin, Eltibi had to establish she was entitled to possession of Albus and, at the time the suit was filed, Kocsis had actual or constructive possession of the dog.
R.C. 955.11(B) also states that “upon the transfer of ownership of any dog, the seller of the dog shall give the buyer a transfer of ownership certificate that shall be signed by the seller. The certificate shall contain the registration number of the dog, the name of the seller, and a brief description of the dog.”
In her 3-0 opinion, appellate Judge Betty Sutton noted Kocsis did not present any evidence establishing a transfer of ownership of Albus from Eltibi to Kocsis, and her name does not appear on the adoption contract or other documents Eltibi presented.
“Ms. Kocsis testified she ‘always believed’ she was an owner of Albus, but that fact is not reflected in any of the documents related to the adoption of Albus that were provided to the trial court,” Judge Sutton stated. “Importantly, the adoption contract executed between Ms. Eltibi and the Madison County Humane Society specified Ms. Eltibi was to return Albus to the Madison County Humane Society in the event she no longer wished to take care of him and indicated Ms. Eltibi was not authorized to give the dog to someone else.
“While the record clearly reflects Ms. Kocsis loved and cared for Albus, there is no evidence in the record supporting the conclusion that Ms. Kocsis had any legally recognizable ownership interest in Albus. The record and applicable law do not support the trial court’s conclusion that Ms. Eltibi and Ms. Kocsis were co-owners of Albus.
“Further, it is undisputed that after their romantic relationship ended, Ms. Eltibi and Ms. Kocsis had an unwritten agreement allowing Ms. Kocsis to spend specific periods of time with Albus without Ms. Eltibi present. However, the last time Ms. Eltibi dropped Albus off at Ms. Kocsis’ home, Ms. Kocsis was to return Albus to Ms. Eltibi at an agreed upon date and time. It is also undisputed in the record that Ms. Kocsis failed to follow this agreement, and, therefore, was not entitled to possession of Albus at the time the lawsuit was filed. There is no evidence in the record to suggest Ms. Kocsis was entitled to retain possession of Albus when she made the decision not to return Albus to Ms. Eltibi at the agreed upon time.”
The case was remanded, and Kocsis was ordered to promptly return Albus to Eltibi.
Ninth District judges Jennifer Hensal and Lynne Callahan concurred. The case is cited Eltibi v. Kocsis, 2021-Ohio-2911.