NANCY BEALL v. ROBERT SCHWEGLER, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0276-05T10276-05T1

NANCY BEALL,

Plaintiff-Respondent,

v.

ROBERT SCHWEGLER, JR.,

Defendant-Appellant.

__________________________________

ROBERT SCHWEGLER, JR.,

Plaintiff-Appellant,

V.

ATLANTIC COUNTY SPCA,

Defendant.

________________________________________________________________

 

Submitted May 16, 2006 - Decided June 8, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, DC-99-05.

Robert S. Greenberg, attorney for appellant.

Thomas G. Smith, attorney for respondent.

PER CURIAM

The parties asserted claims against each other arising out of events that occurred on August 26, 2003. On that date, Nancy Beall, an SPCA officer, responded to a report that had been received by another SPCA officer from a neighbor of Robert Schwegler, Jr., advising that a dog was unattended in Schwegler's yard and apparently in distress. When Beall arrived at Schwegler's property, a vehicle was parked in front of the house. She knocked on the front door but no one answered. She walked around to the back to see if anyone was in the backyard. Although the backyard was fenced, a complete section of the fence was down, enabling Beall to enter the backyard unobstructed. As she approached the back door to knock, she heard a dog whimpering and observed it in a distressed and dehydrated condition. She removed the dog. Schwegler went to Beall's home and, according to Beall, entered without permission and threatened and assaulted her.

Two separate complaints were filed. Schwegler filed a complaint in the Small Claims section of the Special Civil Part against the SPCA. Beall filed a complaint in the Special Civil Part against Schwegler, and in that action, Schwegler filed a counterclaim against Beall. The two actions were ultimately consolidated. Beall alleged that Schwegler trespassed on her property and assaulted her. Schwegler alleged that Beall trespassed on his property, illegally removed his dog, and thereafter negligently failed to provide proper care for the dog. Each party sought monetary damages against the other.

Schwegler never filed a Tort Claim Notice as required by N.J.S.A. 59:8-8 and -9. Beall moved for summary judgment. The matter came before the court on August 3, 2005. Both parties were represented by counsel. Schwegler conceded that he had filed no Tort Claim Notice and that the SPCA and its employees are deemed public employees under the Tort Claims Act. Schwegler argued, however, that Beall was not immune from liability under the Tort Claims Act because of her unlawful warrantless entry onto his property and seizing his dog was outside the scope of her public employment. See N.J.S.A. 59:3-14b.

The judge heard the testimony of Beall on August 3, 2005, after which he concluded that her entry onto Schwegler's property was lawful under the circumstances and within the scope of her SPCA employment. He therefore ordered dismissal of Schwegler's affirmative claims against Beall.

Beall's affirmative claims against Schwegler were not addressed, and the matter was scheduled for further proceedings on August 8, 2005. At that time, the parties negotiated a settlement, by which Schwegler agreed to pay Beall $1,800 in prescribed installments to satisfy her claims against him. We are informed by Beall's counsel that the settlement was placed upon the record and approved by the court, but we have not been furnished with a transcript of that proceeding. The handwritten settlement agreement signed by both parties has been provided to us.

Rather than making his first installment payment when due, Schwegler filed this appeal. While the appeal was pending, Beall moved in the trial court, pursuant to the terms of the settlement agreement, to reduce the settlement obligation to judgment. A subsequent order entered judgment against Schwegler in the total amount of $2,077.40, including allowable attorney's fees and costs. The judgment has been fully satisfied, and a warrant for satisfaction has been issued.

In his appeal, Schwegler advances the following argument:

PLAINTIFF HAD NO AUTHORITY TO CONDUCT AN INVESTIGATORY SEARCH OF DEFENDANT'S BACKYARD WITHOUT HAVING FIRST OBTAINED A SEARCH WARRANT.

Initially, we question the viability of the appeal in light of Schwegler's consent to a settlement of the litigation without reserving the right to appeal an adverse interlocutory order. See Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). Nevertheless, we find that the substantive argument advanced by Schwegler is without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.

SPCA members possess the power to investigate reports of cruelty to animals and to seize animals. State v. Vickery, 275 N.J. Super. 648, 655-56 (Law Div. 1994). The report by the neighbor of a dog in distress did not provide sufficient probable cause to support the issuance of a warrant, but did provide a sufficient basis for investigation. Beall properly exercised her authority and responsibility to investigate the report by responding to the property. After knocking on the door and attempting to communicate with any occupant of the premises, she entered the backyard without obstruction and in the absence of any "no trespassing" signs. She observed in plain view the dog, which, based upon her experience and training, was dehydrated and in distress.

 
At that point, Beall possessed sufficient information from her own field observations, which corroborated the citizen report, that an animal abuse or neglect violation had probably occurred, and under the community caretaking/exigent circumstances or plain view exceptions to the warrant requirement, properly seized the dog. There was no constitutional violation. Beall acted within the scope of her public duty, and Schwegler's claim was barred by his failure to file a Tort Claim Notice.

Affirmed.

(continued)

(continued)

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A-0276-05T1

June 8, 2006