The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1042
BREANA WILLIAMS
vs.
JOHN HICKSON & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
While living together as romantic partners, the plaintiff
and defendant John Hickson (the defendant) adopted a border
collie and pit bull terrier mixed-breed puppy that the plaintiff
named Sadie. Several months later, the couple broke off their
relationship, and Sadie ended up in the defendant's possession.
The plaintiff filed this Superior Court replevin action for the
return of Sadie and obtained a preliminary injunction granting
her possession of Sadie. After a bench trial, however, the
Superior Court judge found that the plaintiff had gifted Sadie
to the defendant and ordered judgment in his favor. The
plaintiff now appeals, arguing that the judge did not correctly
apply the legal standard governing transfer by gift. We affirm.
1 Linda Hickson and Michael Hickson.
Background. After trial, the judge issued written findings
of fact and conclusions of law. The judge acknowledged that,
because of the emotionally-charged subject matter, the
conflicting testimony of the parties, and the strength of the
circumstantial evidence presented by each side, her ultimate
conclusion in the defendant's favor was both "close and
difficult." Although acknowledging the same, we nevertheless
must adopt the judge's findings absent clear error, keeping in
mind that "[i]n a bench trial[,] credibility is
'quintessentially the domain of the trial judge [so that her]
assessment is close to immune from reversal on appeal except on
the most compelling of showings.'" Prenaveau v. Prenaveau, 81
Mass. App. Ct. 479, 496 (2012), quoting Johnston v. Johnston, 38
Mass. App. Ct. 531, 536 (1995).
The judge found that sometime before the events of this
case, the parties endured a period of separation in their
relationship, during which the defendant had dated another woman
and grown attached to the other woman's dog. By March 2020, the
parties had resumed their romantic relationship and moved in
together, but the defendant's continued attachment to the other
woman's dog troubled the plaintiff. Although the plaintiff
testified that she decided to adopt another dog because she
wanted a companion for her two small shih tzus, the judge
ultimately credited the defendant's testimony that the plaintiff
2
adopted Sadie because she thought it would help their
relationship by lessening the defendant's attachment to his ex-
girlfriend's dog.
The defendant had wanted a pit bull since he was a child
and was specifically interested in a border collie and pit bull
mix. After discovering Sadie through social media, the
plaintiff filled out the paperwork and paid the fee to adopt
Sadie. 2 Under the terms of the adoption contract with the animal
shelter, the plaintiff could not "abandon, give away, sell, or
dispose" of the dog, or she would be required to pay $300 in
liquidated damages to the shelter. Once Sadie was living with
the parties, the plaintiff took responsibility for Sadie's
veterinary care, but the defendant spent more time with Sadie,
taking her to his parents' house on almost a daily basis, and
was responsible for Sadie's behavior training.
In August 2020, the parties ended their relationship again,
and Sadie ended up in the possession of the defendant and his
parents. The plaintiff filed suit, seeking the immediate return
of Sadie to her care, and was granted a preliminary injunction.
Sadie remained with the plaintiff until, after trial, the judge
concluded that Sadie was a gift to the defendant from the
2 The plaintiff named the dog Sadie even though the defendant did
not like that name.
3
plaintiff and ordered that she transfer Sadie to him. This
appeal followed.
Discussion. On appeal, the plaintiff argues that the judge
failed to apply the correct legal standard for transfer by gift. 3
We are not convinced.
Under Massachusetts law, dogs and other pets are treated as
personal property. See Irwin v. Degtiarov, 85 Mass. App. Ct.
234, 237 (2014). "It is settled that in order to effect a
completed gift of personal property . . . there must be a
settled donative intention on the part of the donor, together
with an actual or symbolic delivery of the subject matter of the
gift to the donee . . . in such manner as completely to transfer
the dominion and control of [the property to the donee]."
Monaghan v. Monaghan, 320 Mass. 367, 369–370 (1946). See
Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 204 (1986).
First, the judge clearly considered the plaintiff's
donative intent when concluding that Sadie was a gift. There
was evidence that the plaintiff sought to adopt a dog with the
3 The plaintiff's brief also asserted that the judge's findings
of fact were clearly erroneous. At oral argument, however, the
plaintiff disclaimed this assertion. In any event, the
plaintiff has not furnished us with the full trial transcript,
thereby precluding us from reviewing whether any finding was
clearly erroneous. See Matter of Valerie R. Pecce Supplemental
Needs Trust, 99 Mass. App. Ct. 376, 381–382 (2021). From the
limited record that is before us, we have no concern in this
regard.
4
intent to diminish the defendant's attachment to the other
woman's dog. Also, the plaintiff's choice to adopt a dog of the
defendant's preferred breed mix supports the inference that she
intended to adopt the dog for the defendant.
Despite the plaintiff's arguments to the contrary, the fact
that her intent was developed before Sadie was actually adopted
was sufficient to infer that she still had the intent during and
after Sadie's adoption, even without a formal declaration
postadoption. "One of the commonest of inferences is that a
state of affairs, including a state of mind, once proved to
exist, continues to exist." Conroy v. Fall River Herald News
Publ. Co., 306 Mass. 488, 493 (1940). Although the adoption
contract bearing only the plaintiff's name might be viewed as
strong circumstantial evidence of her intent to keep possession
of Sadie, we do not agree that the judge erred by (in the
judge's words) "look[ing] beyond the paperwork" to consider the
parties' testimony. 4
4 Nor did the adoption contract itself establish or govern the
plaintiff's intent as a matter of law. The contract did not
prevent the plaintiff from giving Sadie away; it merely made her
liable for liquidated damages if she did so. Relatedly, the
adoption contract was not dispositive of who had title to Sadie.
Even in the context of motor vehicles, for which written title
is generally required, see G. L. c. 90D, § 4, being named on the
written title is not dispositive of ownership; dominion and
control must also be considered. See Commonwealth v. One 1986
Volkswagen GTI Auto., 417 Mass. 369, 371, 374-376 (1994).
5
Second, the judge adequately considered whether the
plaintiff delivered Sadie to the defendant, even if the judge
did not use the word "delivery" in discussing this element. The
judge's written decision clearly stated that in determining who
owned Sadie, she considered "indicia of dominion and control."
Her conclusion rested in part on her findings that the defendant
was primarily responsible for Sadie's day-to-day care and took
her to his family's house "on almost a daily basis," sometimes
also bringing the plaintiff's two dogs. The defendant's father
had enlarged a fence in his yard to make a safe place for the
dogs to play.
Courts applying the common law of transfers by gift
generally apply the delivery element more loosely when the gift
is made between members of the same household. See Estate of
Raphael, 115 Cal. App. 2d 525, 531 (1953); Fotiatis v. Clemmons,
134 Ga. App. 487, 487 (1975); Ross v. Draper, 55 Vt. 404, 407
(1883); Potts on Behalf of Estate of Gavcus v. Garionis, 127
Wis. 2d 47, 52-54 (Ct. App. 1985), and cases cited. See also
Shepard v. Shepard, 164 Mich. 183, 201 (1910) ("[O]pen and
visible change of possession is obviously not possible in all
cases. Thus, where the donor and donee reside together, . . .
[i]t is sufficient[] if it clearly appears that the donor had
relinquished, and the donee had acquired, all dominion over, and
control of, the property"); Restatement (Second) of Property,
6
Donative Transfers § 31.1 Reporter's note 1(b) (1992) (listing
cases "recognizing that the rule of delivery is not so strictly
applied to gifts between family members").
Therefore, we think that the judge's findings about who had
dominion and control over Sadie were sufficient in this
instance. Although the adoption paperwork and veterinary
records were strong evidence that the plaintiff anticipated and
retained a significant role in caring for Sadie, we do not see
any error in the judge's conclusion that the defendant
ultimately had dominion and control over Sadie, establishing
along with the other evidence that Sadie was a gift from the
plaintiff.
Amended judgment entered on
June 9, 2022, affirmed.
By the Court (Sacks,
Brennan & D'Angelo, JJ. 5),
Clerk
Entered: December 14, 2023.
5 The panelists are listed in order of seniority.
7