MARC ADAMS v. EDITH BUCHKO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3785-06T33785-06T3

MARC ADAMS,

Plaintiff-Respondent,

v.

EDITH BUCHKO,

Defendant-Appellant.

_______________________________

 

Argued January 28, 2008 - Decided

Before Judges S.L. Reisner and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. SC-382-07.

Jonathan H. Lomurro argued the cause for appellant (Lomurro, Davison, Eastman & Munoz, attorneys; Michael J. Fasano, on the brief).

Marc Adams, respondent, argued the cause pro se.

PER CURIAM

Defendant Edith Buchko appeals from an order of the Special Civil Part ordering her to pay $1070 in compensatory damages and $930 in punitive damages to plaintiff Mark Adams. We affirm.

I

At the trial before Judge Sullivan, plaintiff testified that he learned through an internet advertisement that defendant had Shar-pei puppies for sale. Defendant advertised the dogs as being purebred and registered with the "Purebred Canine International Association" (PCI). Adams called defendant and made an appointment to see the puppies. He told her that this was his "first time buying a dog with papers" and told her that he wanted to breed dogs. Defendant assured him that it would be "no problem, I will take care of it." In other words, she represented that she would sell him a dog that he could use for breeding.

On July 31, 2006, Adams gave Buchko a deposit for a male puppy. The deposit receipt is titled "DEPOSIT for a PUREBRED CANINE INTERNATIONAL registered pup." The receipt makes no mention of the dog being sold as a pet. On August 12, 2006, Adams paid the remaining price for the dog and received a bill of sale which, again, indicated in large type that he was buying "a PUREBRED CANINE INTERNATIONAL registered pup." In small type at the bottom of the first section of the contract appeared a sentence reading "This animal is sold only as a pet."

According to Adams, when he later attempted to buy a female from other breeders, no one would sell him a female to breed with the male he bought from defendant, because the male puppy was not registered with the American Kennel Club (AKC). After making further inquiries, Adams learned that PCI was not a recognized dog breeding association, but rather was an organization that defendant created, and that defendant had been suspended from the AKC. According to Adams, he called defendant many times and left messages that he was "unhappy with the puppy and I needed to talk to her." When he finally reached her, she refused to take the dog back or refund his money and told Adams "you can kiss my a--, and you can take me to court."

According to Buchko, defendant never told her that he wanted to use the male puppy to breed. She testified that "[w]hen he picked up the puppy," he asked her to let him know "when I have another litter. He's interested in a female. I said, you want to breed? He says, probably." She contended she told Adams that both dogs would have to be registered with PCI in order to breed them. Buchko testified that she set up PCI herself "about 12 years [ago]." She contended that there were many dog breeding associations, and that AKC was only one of them. Buchko contended that two weeks after the sale, Adams called her, claiming that she had falsely told him that the puppy was AKC registered and accusing her of fraud. She also claimed she offered to sell the puppy for him if he was not happy with it. When questioned by the judge, Adams agreed that he wanted a refund and was willing to give the dog back. He reaffirmed this at oral argument on this appeal.

Judge Sullivan concluded on the record that defendant had committed "a fraudulent scheme" and had sold plaintiff a puppy that was not registered with a recognized breeding organization. In a supplemental written opinion dated March 27, 2007, the judge concluded that defendant

induced the plaintiff to make the purchase by representing that the dog was a pedigreed Shar-pei certified by Purebred Canine International. . . . Purebred Canine International is not a bona fide organization and is, [in] fact, defendant's own invention . . . not recognized by any dog show or by other breeders.

He concluded that defendant intentionally misrepresented that the dog "was properly papered" knowing that plaintiff would rely on that misrepresentation, and that plaintiff did rely on it to his detriment. He found defendant's actions "intentional, deliberate and outrageous." The judge concluded that the sale should be rescinded, and that plaintiff should receive a refund, as well as punitive damages for a total award of $2,000.

II

On this appeal, defendant raises the following contentions:

POINT I: THERE WAS AN INADEQUATE FACTUAL BASIS TO SUPPORT A JUDGMENT AGAINST THE DEFENDANT FOR COMMON LAW FRAUD.

POINT II: THE TRIAL COURT INAPPROPRIATELY TOOK JUDICIAL NOTICE OF ITS OWN EXPERTISE IN DECIDING THE MATTER IN CONTROVERSY.

POINT III: THE COURT IMPROPERLY ORDERED RESCISSION OF THE CONTRACT WITHOUT ORDERING RETURN TO THE STATUS QUO ANTE.

POINT IV: THERE WAS NO BASIS FOR THE AWARD OF PUNITIVE DAMAGES.

Having reviewed the entire record, we conclude that Judge Sullivan's decision was supported by substantial credible evidence, R. 2:11-3(e)(1)(A), and that defendant's appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Defendant claims there was no proof of fraud because the contract with plaintiff indicated that the dog was sold only as a pet. However, the small-print advice on the contract would in no way effectively alert a consumer to that representation, when both the contract and the deposit receipt proclaimed in bold letters that the puppy was "PUREBRED" and registered. Further, without some explanation from the seller, a novice such as plaintiff would not know that "pet only" was intended to mean that the dog could not be bred or entered in dog shows. According to plaintiff's testimony, he told defendant he wanted a dog to breed. Thus, she should have known he wanted a registered dog. Once he bought the dog, no one would sell him a female to breed it with because it was not AKC registered.

Our review of the trial judge's factual findings is limited to determining whether they are supported by substantial credible evidence, giving particular deference to the trial judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 470-74 (1999); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). In this case, the judge believed plaintiff's testimony and did not believe defendant's testimony. We find no basis to disturb the judge's conclusion that plaintiff committed fraud. See Banco Popular North America v. Gandi, 184 N.J. 161, 172-73 (2005). Moreover, we do not conclude that the judge relied on knowledge outside the record in making his decision; he relied on plaintiff's testimony and on his determination that defendant was not believable.

Finally, while plaintiff did not specifically request punitive damages, this was a small claims case, and the trial court could well have given plaintiff treble damages under the Consumer Fraud Act, N.J.S.A. 56:8-19.

It is our understanding from reviewing the trial transcript that plaintiff wanted to return the dog, and that the trial judge intended this in granting "rescission," although the order did not specifically so provide. At oral argument, plaintiff confirmed that he wanted to return the dog, and defendant's counsel confirmed that if we affirm the trial court's decision, his client wanted the dog back. We, therefore, modify the trial court's order to provide that plaintiff shall return the dog to defendant within thirty days after the date of this opinion. Defendant shall make herself available to permit the return, failing which plaintiff may arrange to return the dog to defendant's counsel. After returning the dog, plaintiff may apply to withdraw the funds from court which defendant deposited to obtain a stay of the judgment.

Affirmed.

 

At the end of the hearing, defendant asserted that she had filed a counterclaim. The document attached to her appendix does not appear to have been filed and is not in proper form. However, even if she filed a counterclaim, it would properly be dismissed based on the judge's findings on plaintiff's claim.

Hearsay is admissible in small claims cases. N.J.R.E. 101(2)(A).

(continued)

(continued)

7

A-3785-06T3

February 14, 2008