LISA BOURGEOIS v. ALLAN LEVINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5592-08T35592-08T3

LISA BOURGEOIS,

Plaintiff-Respondent,

v.

ALLAN LEVINE and

PATRICK BLANCHARD,

Defendants-Appellants.

______________________________________________________

 

Submitted April 14, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. SC-4753-08.

Pavliv & Rihacek, attorneys for appellants (John Thaddeus Rihacek, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Lisa Bourgeois purchased a puppy, which she named Roxy, from defendants for $500 by way of a contract dated July 26, 2008. Immediately following the transaction, Roxy became ill and was taken by plaintiff to a veterinarian, who issued a certificate of unfitness on August 1, 2008. The parties thereafter disagreed about their respective rights and obligations, and plaintiff eventually filed suit against defendants in the Special Civil Part. Following a brief trial, the judge entered judgment in favor of plaintiff and against defendants in the amount of $596.

Defendants appealed, arguing that the judge misapplied the applicable law and that her findings of fact were against the weight of the evidence. Defendants also argue that the judge erred in failing to dismiss the action because of plaintiff's failure to produce expert testimony. We reject all defendants' arguments except that we agree that a remand is required for the entry of an amended judgment as to damages and for an identification as to which, or both, of the defendants is responsible for the damages incurred by plaintiff.

As an initial matter, we recognize that during trial the judge asked defendant Levine whether he was a "pet dealer." He denied he was and the judge appears to have accepted this as fact in rendering her decision. Accordingly, the administrative rules that regulate the sale of animals, N.J.A.C. 13:45A-12.1 to 12.3, are not applicable; they apply only to "pet dealers." See, e.g., N.J.A.C. 13:45A-12.3(a) (emphasis added) (declaring that it "shall be a deceptive practice for a pet dealer to sell animals . . . without complying with the . . . minimum standards" contained in the various provisions of the regulations). As a result, we look to the parties' contract to ascertain their rights and liabilities.

Interestingly, the contract includes the exact provisions required by N.J.A.C. 13:45A-12.3 for the sale of animals by "pet dealers." However, because defendants are not pet dealers, we interpret those contractual provisions not as requirements imposed by operation of law -- a circumstance that might warrant a strict construction -- but with the understanding that they are the parties' voluntary stipulations intended to govern their undertaking.

By way of the contract, plaintiff purchased Roxy for $500. The contract also delineated plaintiff's rights if Roxy proved unfit. The contract declared that if "a licensed veterinarian certifies your animal to be unfit for purchase within 14 days following receipt of your animal," plaintiff would have the right to elect one of the following remedies:

1. Return your animal and receive a refund of the purchase price including sales tax; or

2. Keep your animal and attempt to cure it; or

3. Return your animal and receive an animal of your choice of equivalent value.

As noted above, plaintiff obtained a certificate of unfitness from a veterinarian within fourteen days of the transaction. In addition, the record leaves no doubt that plaintiff never returned Roxy but instead kept Roxy despite the certificate of unfitness; in short, plaintiff elected the second remedy. As a result, plaintiff's rights and the seller's liabilities turned on the following provision of the contract: "Veterinary fees limited to the purchase price of the animal, including sales tax, which were related to the condition rendering the animal unfit for sale, must be paid by the dealer in the event that you choose to keep the animal."

Here, the judge examined the bills plaintiff received from the veterinarian and, in entering judgment, concluded they amounted to $596. As the provisions quoted above indicate, the seller's liability was limited to "the purchase price of the animal," here, $500. As a result, the judge's award of damages was mistaken because it exceeded by $96 the amount of the purchase price for the puppy.

To the extent defendants would have this court determine whether the judge's damages findings were supported by evidence in the record, we would note that the testimony presented nothing but confusion about whether some bills or expenses were related to Roxy or some other dog, or whether, if related to Roxy, they were for treatment of the condition referred to in the certificate of unfitness. And defendants have not included in the record on appeal the exhibits examined by the judge in quantifying damages. As a result of the inadequacies in defendants' submission to this court, we are hampered in our attempts to determine whether there is any substance in defendants' contentions regarding the fixing of damages and, therefore, must conclude that defendants have not demonstrated there is any cause for our intervention on this point. See In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000).

We also briefly make note of defendants' other arguments. In seeking to avoid liability, defendants cite to the following contractual provision:

In order to exercise these rights, you must present to the pet dealer a written veterinary certification that the animal is unfit for purchase and an itemized bill of all veterinary fees incurred prior to your receipt of the certification. Both of these items must be presented no later than five days after you have received the certifi-cation of unfitness.

[Emphasis added.]

The first problem with the application of this provision here is that the opening phrase refers only to "these rights," without specifying which of the many rights contained in the preceding provisions are intended to be encompassed by the requirements in this paragraph. Moreover, in this case, the record reveals that, on August 8, 2008, only two days beyond the purported five-day limit, plaintiff mailed to defendant Levine, by certified mail, a letter describing Roxy's illness and anticipated future treatment. The letter was apparently sent to an incorrect address and not received, but another letter forwarded a few weeks later enclosed a copy of the certificate of unfitness. And plaintiff sent another letter to defendant Levine the following month, enclosing copies of the veterinary bills incurred by plaintiff as of that time. Defendants argue that because the certificate of unfitness was dated August 1, 2008, plaintiff's failure to serve it, as well as the bills subsequently incurred, on defendants within five days bars her claim for relief. We reject this.

As the record reveals, plaintiff continued to have Roxy treated after receipt of the date of the certificate of unfitness in order to ascertain and correct the puppy's problems. Although she made a quick election to retain Roxy, plaintiff was not able to either obtain or provide a full picture of Roxy's medical issues within the short time period purportedly imposed by the contract. In that circumstance, we find it would be contrary to the purposes of the parties' mutual undertaking to expect strict compliance with the five-day provision. We find it inequitable to impose on plaintiff an obligation on plaintiff to strictly conform to this time frame, particularly when defendants have failed to demonstrate prejudice in the brief additional period of time that elapsed before the certificate and related bills were received by them.

Defendants also contend plaintiff was required to provide expert testimony and could not merely rely upon the certificate of unfitness in order to obtain the remedies provided by the contract. We again disagree. The contract makes clear that it is the certificate alone that triggers plaintiff's right to relief. As noted above, the terms of the contract essentially recite the requirements of the administrative regulations. We cannot conclude that the clear and inexpensive process adopted by those regulations for dealing with the sale of animals that later prove unfit should be burdened by a requirement that consumers must prove their cases through the disproportionate expense of calling veterinarians to testify at trial.

To the extent any other arguments may be discerned from defendants' brief, we find they are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

To summarize, we remand for the entry of an amended judgment in plaintiff's favor in the amount of $500. The judgment should also be amended to reflect whether the liability for those damages should be the responsibility of Levine or Blanchard, or both; the judge may hear testimony or receive other evidence and take such other appropriate steps as may be necessary to make a finding on this point.

 
Affirmed in part, remanded in part. We do not retain jurisdiction.

The record is unclear as to the positions of defendants Levine and Blanchard in this transaction. The first page of the contract, where the parties are identified, indicates that the "seller" was Blanchard, but the contract was signed on the last page by Levine as "seller." Because we remand for entry of an amended judgment, we also direct that the judge take such further steps as are necessary to determine which of the defendants, or both, are liable to plaintiff.

The entire amount paid by plaintiff was $535. The contract appears to indicate that the additional $35 was for pet food.

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A-5592-08T3

April 23, 2010