PET FAIR, INC., APPELLANT,
v.
HUMANE SOCIETY OF GREATER MIAMI AND DADE COUNTY SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS, A FLORIDA NOT FOR PROFIT CORPORATION, APPELLEE
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Pet Fair, Inc. challenged a judgment requiring it to pay the Humane Society's expenses for caring for animals seized under animal cruelty statutes. The court reversed, holding that because Pet Fair was found capable of caring for its animals, the Humane Society could not recover care expenses when Pet Fair chose not to reclaim the animals.
The court reversed the judgment, holding that the Humane Society had no lawful basis for recovery because Florida Statutes section 828.073(4)(a)1 permits expense recovery only upon the condition that the owner pays to reclaim the animals. When the owner chooses not to reclaim the animals, the statutory condition is not satisfied and recovery is barred.
[1] An owner who successfully demonstrates the ability to adequately care for seized animals is entitled to their return upon payment of expenses incurred during their custod…
[2] A party cannot recover expenses for the care of animals if the owner was found able to provide adequate care and chose not to 'buy back' the property.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is plainly contrary to the terms of the statute, and even more obviously to common sense, to permit the Society both to keep the animals as "improved" by its expenditures and to recover the costs themselves from the owner — particularly when, as here, the pets had been involuntarily (and as it turned out, unjustly) taken in the first place.”
Establishes the fundamental unfairness and statutory violation of allowing the Humane Society to retain both the animals and recover expenses after an owner was found capable of caring for them.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMetro-Dade Police seized animals from Pet Fair, Inc. based on alleged neglect or mistreatment and turned them over to the Humane Society for care. A c…
The full statement of facts, procedural history, and disposition for this case are member content.
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SCHWARTZ, Chief Judge.
Pursuant to section 828.073, Florida Statutes (1989), the Metro-Dade Police Department seized allegedly neglected or mistreated domestic animals from their owner, the appellant, Pet Fair, Inc. Metro turned them over for care and treatment to the appellee, the Humane Society. The county court then found on disputed evidence in favor of Pet Fair, that it was in fact able adequately to provide for the animals. Therefore, pursuant to 828.073(4)(a)l,1 it was ordered that the animal[s] shall be returned to the owner upon payment by the owner for the care and provision for the animal[s] while in the agent’s or officer’s custody.
However, Pet Fair apparently could not but, in any event, did not pay the sum required for the Society’s expenses and did not reclaim its property. The Humane Society thus remained in their possession and then disposed of them in accordance with its usual practice by putting them up for “adoption.” Nevertheless, the appellee Society sued Pet Fair and secured a judgment from the circuit court for the expenses. We reverse.
It is apparent that there is no lawful basis upon which the recovery secured below can be sustained. Under the applicable provision of 828.037(4)(a)l, an owner which has successfully shown its ability to care for its animals may get them back, if it pays for the expenses duly incurred during their retention by the authorities. In this case, however, Pet Fair, in effect, chose not to “buy back” its property, so that the condition of such a purchase was never fulfilled. It is plainly contrary to the terms of the statute, and even more obviously to common sense, to permit the Society both to keep the animals as “improved” by its expenditures and to recover the costs themselves from the owner — particularly when, as here, the pets had been involuntarily (and as it turned out, unjustly) taken in the first place. See 3A C.J.S. Animals § 341 (1973) (“The right of the poundkeeper to his fees may be lost ... where [he] fail[s] to proceed with his duties in the statutory manner_”).
Apparently the appellee proceeded under the provision in 828.073(4)(c)3 that the court may require that the owner pay for the care of the animal while in the custody of the agent or officer. Unfortunately, that remedy is available only
[u]pon the court’s judgment that the owner of the animal is unable or unfit to adequately provide for the animal.
§ 828.073(4)(c), Fla.Stat. (1989) (emphasis supplied). Because just the opposite occurred here, the subsection relied upon obviously has no applicability whatever. Although this issue was not directly raised by Pet Fair either below or on appeal, the award of a judgment which has no legal foundation — when, in other words, the plaintiff has recovered upon a nonexistent right — constitutes fundamental error which we are required to notice and correct. Stevens v. Allegro Leasing, Inc., 562 So. 2d 380 (Fla. 4th DCA 1990); Marks v. Delcastillo, 386 So. 2d 1259, 1267-68 (Fla. 3d DCA 1980), review denied, 397 So. 2d 778 (Fla.1981); Keyes Co. v. Sens, 382 So. 2d 1273, 1276 (Fla. 3d DCA 1980).
Accordingly, the judgment below is reversed and the cause remanded with directions to dismiss the complaint.
Reversed.
. 828.073(4)(a)l provides:
(4)(a) The officer or agent of any county or of any society or association for the prevention of cruelty to animals taking charge of an animal as provided for in this section shall provide for the animal until either:
1. The owner is adjudged by the court to be able to provide adequately for, and have custody of, the animal, in which case the animal shall be returned to the owner upon payment by the owner for the care and provision for the animal while in the agent’s or officer’s custody.
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Sec. Bank, N.A. v. Bellsouth Advertising & Publ'g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996)…2d 380 (Fla. 4th DCA 1990); Marks v. Delcastillo, 386 So. 2d 1259, 1267-68 (Fla. 3d DCA 1980), review denied, 397 So. 2d 778 (Fla.1981); Keyes Co. v. Sens, 382 So. 2d 1273, 1276 (Fla. 3d DCA 1980). Pet Fair, Inc. v. Humane Society of Greater Miami, 583 So. 2d 407, 409 (Fla. 3d DCA 1991) (emphasis added).…
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Brinkley v. Cnty. OF Flagler, 769 So. 2d 468 (Fla. 5th DCA 2000)…mal was judicially determined to be unwarranted because the owner is, in fact, able to adequately provide for the animal, then the owner cannot be required to pay for the cost of the animal’s care. See Pet Fair, Inc. v. Humane Soc. of Greater Miami, 583 So. 2d 407 (Fla. 3d DCA 1991). Accordingly, we conclude that Brinkley was not deprived of her property without due process, that the post-seizure hearing provided by section 828.073 adequately protected her due process rights, and that a pre-seizure hearing wa…
Authorities Cited
- Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980)
- The Keyes Co. v. Sens, 382 So. 2d 1273 (Fla. 3d DCA 1980)
- Stevens v. Allegro Leasing, Inc., 562 So. 2d 380 (Fla. 4th DCA 1990)