Dannielle Zephier,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0907

Court of Appeals McKeig, J.

Dannielle Zephier,

Respondent,

vs. Filed: March 31, 2021
Office of Appellate Courts
Derrick Agate, Jr., Lee Ann Krueger,

Appellants.

________________________

Marshall H. Tanick, Teresa J. Ayling, Meyer Njus Tanick, P.A., Minneapolis, Minnesota,
for appellants.

Stephen F. Buterin, Fisher Bren & Sheridan LLP, Minneapolis, Minnesota, for respondent.

________________________
S Y L L A B U S
1. Minnesota Statutes section 345.75 (2020) does not abrogate the common law
of abandonment as to tangible personal property.
2. The court of appeals did not err when it reversed the district court’s decision
regarding abandonment because, under both common law and Minn. Stat. § 345.75,
Zephier did not abandon her dog Oliver.
Affirmed in part, reversed in part.
2
O P I N I O N
MCKEIG, Justice.
This appeal requires us to consider whether Minn. Stat. § 345.75 (2020), which
governs the abandonment of tangible personal property , abrogates by implication the
common law in this area. We conclude that Minn. Stat. § 345.75 does not abrogate by
implication the common law of abandonment of tangible personal property, contrary to the
decision of the court of appeals, and therefore we reverse that holding. However, because
we agree with the court of appeals that respondent did not abandon her dog under Minn.
Stat. § 345.75, and that the district court erred in concluding that she abandoned the dog
under the common law, we affirm that portion of the court of appeals’s decision.
FACTS
In July 2008, respondent Dannielle Zephier purchased a dog named Oliver. Zephier
traveled frequently for work starting in 2009, so her two dogs, Oliver and Alex, began
staying with her father in South Dakota.
Around September 2015, Zephier’s father moved and the dogs could no longer live
with him. Zephier had moved to Los Angeles, California, and could not bring the dogs to
live with her. She asked appellant Derrick Agate, Jr., whom she had previously dated, to
take care of both dogs. Agate agreed to do so, but they d id not have a written agreement
about the care of the dogs.
Zephier and Agate dispute who paid the dogs’ expenses. Zephier assumed she
would pay for the expenses, and thus, she took care of multiple vet bills dealing with Oliver
while he stayed with Agate.
3
While the dogs stayed with Agate, he and Zephier communicated regularly via text
message including frequent discussions about the dogs. Between 2015 and 2017, Zephier
flew back to Minnesota to visit the dogs on multiple occasions. In 2016, while the dogs
were still staying with Agate, appellant Lee Ann Kruger moved in with him.
In November 2016, Zephier moved Alex to her home in California. She did not
take Oliver at the time because he was larger and she did not believe she would be able to
take him with her on the plane. She planned to rent a car in order to pick up Oliver and
drive him back to California to live with her. After Zephier brought Alex to live with her,
she and Agate continued to communicate about Oliver.
In October 2017, Zephier made plans with Agate to fly to Minnesota and visit
Oliver. After Zephier arrived in Minnesota, she coordinated with Agate to pick up Oliver
from his apartment. Zephier texted Agate when she arrived and he replied that he would
“be out shortly.” Three minutes later, Agate texted again: “I can’t bring him out I’m sorry.”
Zephier demanded that Agate return Oliver to her, he refused, and they continued to have
a back-and-forth text exchange. Agate came out to talk to Zephier in person and then
refused to hand Oliver over to her.
Zephier threatened to, and eventually did, call the police. The police refused to get
involved because the dispute was a civil matter. On October 30, 2017, Kruger registered
Oliver with the City of Minneapolis—there is no evidence that anyone had previously
registered him with the city. In May 2018, Zephier filed a police report claiming that Agate
and Kruger stole Oliver.
4
In July 2018, Zephier filed a claim in conciliation court against Agate and Krueger,
seeking replevin of Oliver.1 The referee denied replevin but entered a monetary judgment
for $570 in Zephier’s favor. Zephier removed the case to district court. The district court
denied recovery because it found that Zephier had abandoned Oliver. Specifically, the
district court found that Zephier abandoned Oliver when she picked up Alex and returned
to California in November of 2016, “thereby relinquishing any remaining ownership
interest she may have had in Oliver.” The district court also found Zephier “made an
intentional and voluntary decision to permanently part with Oliver when she reclaimed full
ownership of Alex in November 2016.” The district court further found that the
requirements of Minn. Stat § 345.75, which governs the abandonment of tangible personal
property, had been met because Agate possessed Oliver for more than six months; Zephier
did not take Oliver with her; and she had personal notice in November 2016 that she was
abandoning Oliver, but did not dispute his ownership until October 2017.
Zephier appealed. The court of appeals reversed in a published opinion. Zephier v.
Agate, 942 N.W.2d 380 (Minn. App. 2020). The court of appeals analyzed the text of
Minn. Stat. § 345.75, and held that the statute abrogated the common law of abandonment
of tangible personal property by necessary implication. 942 N.W.2d at 384. The court
further concluded that under the statute, Agate was required to give Zephier notice that she
had abandoned Oliver, and because he did not, the district court clearly erred in finding

1 Replevin is a common law remedy in which a plaintiff claiming an entitlement to
certain personal property demands the return of that property from the current possessor.
Republic State Co. v. Brown, 197 N.W. 840, 841 (Minn. 1924) (“The gist of an action in
replevin is to determine the right of possession of personal property or the tittle thereto.”).
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that Zephier had personal notice that she had abandoned Oliver. Id. at 386–87. We granted
the petition for review.
ANALYSIS
I.
Respondents Agate and Kruger argue that the court of appeals erred when it held
that Minn. Stat. § 345.75 abrogated the common law of abandonment of tangible personal
property by necessary implication. 2 We review the application of common law de novo.
Soderberg v. Anderson, 922 N.W.2d 200, 203 (Minn. 2019). We presume that statutes are
consistent with the common law and, “we do not presume that the Legislature intends to
abrogate or modify a common law rule except to the extent expressly declared or clearly
indicated in the statute.” Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 73 (Minn. 2012).
Minnesota Statutes section 345.75 governs the abandonment of tangible personal
property. It states:
The ownership of abandoned tangible personal property that is not subject to
any other provision of statute may be transferred as provided by this section.

If property has not been removed within six months after it comes into the
possession of a person, it is abandoned and shall become the property of the
person in possession, after notice to the prior owner. Thirty days’ notice that
the time period has elapsed and that the ownership will be transferred at the
end of the 30 days shall be given to the prior owner personally or by certified
mail, which is actually received. If the name of the prior owner is not known,
and cannot be ascertained with reasonable diligence, three weeks’ published
notice shall be given in the county where the property is located. The prior
owner or another person claiming an interest in the property may petition the
district court to stay the transfer of ownership for a reasonable period to allow

2 Under Minnesota law, dogs are personal property. See Corn v. Sheppard, 229
N.W. 869, 870 (Minn. 1930).
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the removal of the property. The transfer is stayed while the petition is
pending before the court.

Under the common law, abandonment “is the voluntary relinquishment, surrender,
or disclaimer of a known property right, absolutely and without reference to any particular
person or purpose.” Bd. of Trs. of First Congregational Church v. Cream City Mut. Ins.
Co., 96 N.W.2d 690, 693–94 (Minn. 1959). “Abandonment is made up of two elements;
act and intention. There must be an actual relinquishment of the property, accompanied by
an intent to part with it permanently, so that it may be appropriated by any one finding it
or having it in his possession.” Shepard v. Alden, 201 N.W. 537, 539 (Minn. 1924). Intent
can be inferred from the owner’s “conduct and the nature and situation of the property .”
Erickson v. Sinykin , 26 N.W.2d 172, 176 (Minn. 1947) (citation omitted) (internal
quotation marks omitted). Although “mere lapse of time does not in and of itself establish
abandonment,” it is an important factor in determining whether property has been
abandoned. Id. Therefore, under the common law of abandonment of tangible personal
property, there must be (1) actual relinquishment of property, and (2) an intent to
permanently part with the property. Determination of abandonment generally involves a
fact-intensive analysis. See In re Application of Berman, 247 N.W.2d 405, 408 (Minn.
1976).
3

3 The court of appeals cited, and appellants rely on, a four-factor framework we set
out in Berman in their analysis of the common law rule of abandonment. As the court of
appeals noted, 942 N.W.2d at 383 n.4, we have not applied that framework outside of the
abandonment of real property in a contract f or deed situation. We need not decide in this
case whether the Berman factors could be used in the common law analysis of
abandonment of tangible personal property.
7
Agate and Kruger argue that section 345.75 does not abrogate the common law
because the abandonment procedure set forth in the statute and the requirements for
abandonment under the common law can co exist. They argue that the statute is not
exclusive, but merely provides that ownership of abandoned property may be transferred
pursuant to the statutory provisions.
Zephier suggests that, although the common law has addressed the abandonment of
real property, no common law applies to the abandonment of tangible personal property;
accordingly, she argues, the statute is the only law applicable to abandoned tangible
personal property. Zephier further argues that there are differences between the common
law and section 345.75 “that cannot be reconciled,” and thus the court of appeals correctly
concluded that the statute abrogated the common law.
We begin with the court of appeals holding that section 345.75 abrogated the
common law by necessary implication. Zephier, 942 N.W.2d at 384. The court reasoned
that the notice requirement of section 345.75 would be superfluous if the statute and
common law coexisted. Id. We disagree.
To be sure, the court of appeals is correct that the notice requirement is central to
the procedure set out under section 345.75, and that the common-law method of
determining abandonment does not require that notice be given. However, the mere fact
that the two causes of action have different requirements does not mean that one must
displace the other. In addition, we see nothing improper with the Legislature providing a
clear path for the current possessor of apparently -abandoned property to transfer legal
ownership of the property without the necessity of filing a court action and the uncertainty
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of litigating a fact-intensive inquiry. If a possessor of property wishes to transfer ownership
via the statute, they must follow the notice requirements. If they wish to establish
ownership without following the statutory procedure, their claim is subject to the fact-
intensive analysis applicable at common law.
The available legislative history on the introduction of section 345.75 makes this
purpose clear. Section 345.75 was introduced with other amendments to chapter 345—
which broadly deals with unclaimed property—because there was no statutory mechanism
to establish ownership of abandoned tangible property without risk of a law suit being
brought by the p rior owner to recover the property. 4 If a possessor chooses to establish
abandonment of an item of personal property via the statute, the statutory requirement of
notice must be met. 5 Although the statute provides a more streamlined way to establish

4 Senator Thomas Neuville introduced the text of Minn. Stat. § 345.75 on the senate
floor on May 17, 2005, while the senate was discussing amendments to chapter 345.
Senator Neuville stated:
I was surprised to find out we don’t have an abandoned property statute in
Minnesota regarding tangible personal property. And I actually had a
situation where parents died, they deeded the farm to one child and the
equipment, and parts, and personal property to another. The barn was full of
stuff, and the party who it belonged to never came and got it. They just
abandoned it, but there was no way to really deal very well with it, because
if the person who owned the land and the barn now just threw it away they
ran the risk of getting sued.
Sen. debate on S.F. 1360, 84th Minn. Leg., May 17, 2005 (audio recording) (statement of
Sen. Neuville).
5 Because it is undisputed that Agate did not give Zephier the notice required by the
statute, we need not decide here whether Section 345.75 requires strict compliance with its
notice requirements.
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abandonment, the statute does not expressly or by implication establish that that process is
the only way to do so.
Agate and Kruger additionally argue that the term “may” in the clause “ownership
. . . may be transferred as provided by this section” is permissive, and the statute therefore
“provides an additional vehicle for exercising abandonment claims and transferring
ownership rights, as an alternative to common law.” By contrast, the court of appeals
interpreted the term “may” as “permissive for the possessor to attempt to transfer
ownership of the property to himself.” Zephier, 942 N.W.2d at 386. The court reasoned
that if the statute had included the term “shall” instead of “may,” then a possessor of
abandoned property would be required to take the actions outlined in the statute, instead
of having the option to let the property sit where it is. Id. at 386 & n.7.
We disagree with the reasoning of the court of appeals. Under the rules of statutory
construction, “may” is permissive, not mandatory. Minn. Stat. § 645.44, subd. 15 (2020).
The court of appeals interpreted “may” in section 345.75 to give the possessor of
abandoned property two options: transfer ownership under this statute or do not attempt to
transfer ownership of the property “indefinitely.” 942 N.W.2d at 386. W e read “may”
slightly differently, as allowing the possessor to transfer the property via the procedure in
the statute or not to invoke the statute for that transfer. We see nothing in the latter course
of conduct that precludes application of the common law.
6 Further, the use of “may” is

6 The remainder of the statute uses the word “shall,” indicating that the minimum 6-
month possession and notice requirements are mandatory when determining abandonment
via the statute. Minn. Stat. § 345.75.
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consistent with the Legislature’s decision to allow the common law to survive the statute,
which merely provides an additional way in which a possessor of property may establish
ownership.
Zephier, however, argues that the common law and section 345.75 treat the issue of
time differently, which is an inconsistency between them that cannot be reconciled.
Specifically, she contends that the statute defines abandoned property by a specific time
period (6 months) while the common law does not; and the statute requires 30-days’ notice
while the common law does not. We are not persuaded.
Under the common law, the “mere lapse of time does not in and of itself establish
abandonment, [but] it nevertheless is of persuasive importance on the question of the
former owner’s intentions.” Erickson, 26 N.W.2d at 176. Section 345.75, by contrast
states that property “is abandoned” after 6 months. However, the statutory language does
not end there. Rather, abandonment under the statute is inchoate until the statutory
requirements are followed: property that “is abandoned . . . shall become the property of
the person in possession, after notice to the prior owner.” Id. (emphasis added). Only after
notice is given according to the requirements of the statute does the statutorily “abandoned”
property “become the property of the person in possession.” Id. The common law rule, on
the other hand, contemplates a judicial determination regarding abandonment that
conclusively determines the rights of the former owner and the putative new owner of
ostensibly abandoned property: a conclusion of abandonment means that the property “may
be appropriated by any one finding it or having it in his possession.” Shepard, 201 N.W.
at 539.
11
Thus, under section 345.75, the lapse of time, in and of itself, does not establish the
right of the person in possession of the property to own the property. Instead, the lapse of
time allows the person in possession to give notice, which serves a purpose similar to the
common law’s intent inquiry. Although the common law and the statute treat the lapse of
time differently in determining whether a person in possession of ostensibly abandoned
property is the new owner, we discern nothing that makes either treatment inconsistent with
the other.
Similarly, the statutory notice requirement is not indicative of an intent to abrogate
the common law. As noted, section 345.75 includes an express notice requirement that is
absent from the common law: “Thirty days’ notice that the time period has elapsed and that
the ownership will be transferred at the end of the 30 days shall be given to the prior owner
personally or by certified mail, which is actually received.” Minn. Stat. § 345.75. The
court of appeals reasoned that allowing both common law abandonment and the statutory
abandonment process to coexist would make this notice requirement superfluous. Thus, it
concluded that the statute must have been intended to displace the common law. Zephier,
942 N.W.2d at 384.
In concluding that section 345.75 abrogates the common law abandonment action, the court
of appeals noted that the statute was enacted as part of a larger statutory scheme governing
unclaimed property. Id. at 384–35. The Legislature generally intends a statute to supersede
existing common law on an aspect of the law when the Legislature enacts a complete
regulatory scheme with regard to that aspect of the law. See, e.g., Axelberg v. Comm’r of
Pub. Safety, 848 N.W.2d 206, 211 (Minn. 2014) (holding that a driver challenging the
12
revocation of her driver’s license could not raise the common law affirmative defense of
necessity because that area of the law had been abrogated by a comprehensive statutory
scheme), superseded by statute, Act of May 22, 2015, ch. 65, § 10, 2015 Minn. Laws 474,
527 (codified at Minn. Stat. § 169A.53, subd. 3(h) (2020)). Here, however, no language in
the statute shows that the Legislature intended to create a comprehensive statutory scheme
for the disposition of unclaimed tangible personal property . The legislative history here
shows something different: not that the Legislature intended a comprehensive legislative
scheme, but that it intended to create a clear and definite procedure to deal with abandoned
property and to help a possessor avoid the risk of being sued if they disposed of such
property.
We therefore hold that Minn. Stat. § 345.75 does not abrogate the common law of
abandonment of tangible personal property.
II.
Next, we must determine whether the district court erred in finding that Zephier
abandoned Oliver. Findings of fact are not to be set aside unless clearly erroneous. Minn.
R. Civ. P. 52.01; In re Pamela Andreas Stisser Grantor Tr., 818 N.W.2d 495, 507 (Minn.
2012). We review the district court’s application of the law de novo. Harlow v. State
Dep’t of Hum. Servs., 883 N.W.2d 561, 568 (Minn. 2016).
We will first analyze whether Zephier abandoned Oliver under Minn. Stat. § 345.75.
The statute requires the person attempting to obtain ownership of abandoned property to
provide notice, personally or by certified mail, to the original owner. Id. In other words,
it requires an affirmative act by the person claiming the property. Here, Agate admitted
13
that he never gave Zephier “formal notice, written or oral” that he considered her to have
abandoned Oliver. Because Agate and Kruger never provided notice, they did not met the
statutory requirements of section 345.75 and cannot claim ownership of Oliver under the
statute.
The district court found that Zephier had implied “personal notice that she was
abandoning Oliver in November 2016” when she returned to California with Alex and left
Oliver behind. However, such implied notice based on the abandoning party’s own acts is
not sufficient under the plain language of the statute. See Minn. Stat. § 345.75 (directing
the possessor of property to provide notice to the original owner of the property either
personally, via certified mail that is actually received, or by publishing a public notice for
three weeks).
We next analyze whether Zephier abandoned Oliver under the common law. As
noted above, under the common law of abandonment of tangible personal property, there
must be (1) actual relinquishment of property , and (2) an intent to permanently part with
the property. Shepard v. Alden, 201 N.W. 537, 539 (Minn. 1924). Here, neither element
is met.
First, Zephier did not relinquish ownership of her dog. She and Agate had a verbal
agreement that he would care for Oliver while she could not. Nothing in the record
suggests that she would no longer care for him or that she had renounced her ownership of
him. Second, there is no evidence in the record showing that Zephier intended to
permanently part with Oliver. In fact, quite the opposite is true— this dispute arose after
Zephier flew to Minnesota from California for the very purpose of visiting her dog. She
14
had arranged to pick up Oliver when Agate changed his mind and then refused to bring out
the dog. Nothing in this interaction shows an intent by Zephier to part with Oliver.
Additionally, Zephier’s decision to retrieve one dog in 2016 does not mean that she was
abandoning the other. To be sure, Zephier did not intend to take O liver home with her
when she took Alex, but nothing in the record suggests that leaving Oliver at that time
meant that she did not intend to retrieve him at another time. To the contrary, she continued
to communicate with Agate regarding Oliver and flew to Minnesota to see Oliver.
Therefore, Zephier did not abandon Oliver under the common law of abandonment of
tangible personal property.
In sum, Zephier did not abandon Oliver under Minn. Stat. § 345.75 or under the
common law. Thus, the court of appeals correctly reversed the district court’s erroneous
finding of abandonment.
CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the decision of the
court of appeals.
Affirmed in part, reversed in part.