NIDIA J. RIVERA v. JUAN CANSEO

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1580-18T1

NIDIA J. RIVERA,

          Plaintiff-Appellant,

v.

JUAN CANSEO and
BRENDA REALI,

     Defendants-Respondents.
_____________________________

                    Submitted December 5, 2019 – Decided December 17, 2019

                    Before Judges Nugent and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Docket No. SC-000548-
                    18.

                    Nidia J. Rivera, appellant pro se.

                    Respondents have not filed a brief.

PER CURIAM
      Plaintiff Nidia J. Rivera appeals from the October 31, 2018 order of the

Special Civil Part dismissing her complaint for damages incurred as a result of

her dog becoming ill while in defendants' care. We affirm.

                                        I.

      The following facts are derived from the record. Rivera owns a female

chihuahua. Defendant Juan Canseo owns a male chihuahua. Rivera and Canseo

reached an oral agreement to have their dogs mate. Rivera was to obtain puppies

from the mating and Canseo was to receive consideration for the use of his dog. 1

      Rivera brought her dog to Canseo's home, along with an adequate supply

of a brand of dog food to which the dog was accustomed. According to Rivera,

her dog was in good health when she left her at Canseo's home. Canseo placed

Rivera's dog and his dog in the basement together.

      The following day, Canseo telephoned Rivera to report her dog refused to

eat the food she left and instead ate some of his dog's food. He also told Rivera

her dog had loose stool. Although Rivera wanted to pick up the dog, Canseo

convinced her to wait until the next day to give the dogs additional time to mate.


1
  The parties dispute the consideration to be paid Canseo. He testified he was
to be paid $500, regardless of whether Rivera's dog was impregnated. Rivera
testified Canseo was to receive the pick of the litter if the mating ultimately
resulted in the birth of puppies. The exact nature of Canseo's expected
consideration is not material to our analysis of Rivera's claims.
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      Rivera sent her daughter to pick up the dog the next day. When her

daughter first arrived at Canseo's home the dog was locked alone in the

basement. Defendant Brenda Reali, Canseo's wife, said she did not have the key

to the basement door and Rivera's daughter would have to return after Canseo

arrived home. On her second visit that day, Rivera's daughter retrieved the dog

from Canseo and brought it to Rivera.

      Rivera immediately noticed the animal appeared sick and dehydrated. She

took the dog to a veterinarian who treated the animal overnight with fluids and

antibiotics. The dog recovered and is not carrying puppies. Rivera incurred

$1,276.58 in veterinarian fees. Veterinarian records indicate the dog suffered

from hypoglycemia, dehydration, and hyperphosphatemia, secondary to young

age and dehydration. The records do not identify a cause of the dog's illness and

do not attribute her symptoms to either a lack of food or ingestion of food to

which the dog was unaccustomed.

      Rivera filed a complaint in the Special Civil Part, seeking $1,336.28 in

damages from defendants for neglect and abuse of her dog. 2




2
  Although Rivera sought $1,336.28 in damages in the complaint, the evidence
admitted at trial established $1,276.58 in veterinarian fees.
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      On October 31, 2018, a trial was held before Judge Mark Cimino. After

hearing the testimony of Rivera and Canseo, and reviewing the veterinarian's

records, the judge concluded Rivera had not established by a preponderance of

the evidence defendants caused her dog to become ill. As the judge explained:

            I read through this report, and nowhere in this report
            does it say that . . . somehow that they're at fault. And,
            that's the problem. It doesn't say because of their poor
            care, or . . . that this dog has[ not] been fed properly
            . . . it does[ not] say anything like that in here in this
            report. It just says that the dog was noted to be
            dehydrated.

                  ....

            It says, the dog has[ not] eaten since Sunday, not that
            the dog . . . has[ not] been fed. That's a very big
            difference.

                  ....

            And, the doctor does[ not] say . . . that they gave the
            dog the wrong food, or . . . anything about the dog
            having the wrong food, or the diet being off.

On October 31, 2018, the trial court entered an Order dismissing the complaint.

      This appeal followed. Plaintiff raises the following argument:

            THE TRIAL COURT ERRED IN GRANTING
            SUMMARY JUDGEMENT [SIC] TO PLAINTIFF
            [SIC] BECAUSE THE PLAINTIFF DID NOT HAVE
            SUFFICIENT EVIDENCE OF LIABILITY BEING
            HELD AGAINST THE DEFENDANTS IN THIS
            MATTER.

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                                        II.

      Our scope of review of the judge's findings in this nonjury trial is limited.

We must defer to the judge's factual determinations, so long as they are

supported by substantial credible evidence in the record. Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am.,  65 N.J. 474, 483-84 (1974).           This court's

"[a]ppellate review does not consist of weighing evidence anew and making

independent factual findings; rather, [this court's] function is to determine

whether there is adequate evidence to support the judgment rendered at trial."

Cannuscio v. Claridge Hotel & Casino,  319 N.J. Super. 342, 347 (App. Div.

1999).   However, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Manalapan Realty, L.P. v. Twp. Comm.,  140 N.J. 366, 378 (1995).

      Having carefully reviewed Rivera's arguments in light of the record and

applicable legal principles, we affirm the October 31, 2018 order for the reasons

stated by Judge Cimino in his well-reasoned oral opinion. We add the following

comments.

      The record establishes Rivera created a bailment when she left her dog at

defendants' home. "A bailment may be created by contract, either express or

implied, or by operation of law or statute." LaPlace v. Briere, 404 N.J. Super.


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585, 598 (App. Div. 2009). "The cases dealing with a chattel of one person

which is left by him on the premises of another, indicate that there is a bailment

if the latter is given primary control of the chattel for the time being." Moore's

Trucking Co. v. Gulf Tire & Supply Co.,  18 N.J. Super. 467, 469-70 (App. Div.

1952). For example, a bailment is created when jewelry is checked with a

swimming pool attendant, diamonds are delivered to a retail jeweler for sale, an

automobile is left in a shop to be washed, and an airplane is stored in a hanger.

Id. at 470; see also State v. Goodmann,  390 N.J. Super. 259, 266-67 (App. Div.

2007) (holding film left with a store for developing gave rise to a bailment);

Jasphy v. Osinsky,  364 N.J. Super. 13, 18 (App. Div. 2003) (noting a bailment

arose when fur coats were left with defendant for storage and cleaning).

      Here, Rivera left her dog in defendants' primary control for several days.

That Rivera did not have the ability to remove the dog from defendants' home

was established when her daughter discovered the dog locked in defendants'

basement with Reali present with no key to the basement door. Rivera was not

permitted access to her dog until Canseo returned to the home.

      "When a bailment has mutual benefit for the bailor and bailee, the bailee

has a duty to 'exercise reasonable care for the safekeeping of the chattel bailed.'"

Jasphy,  364 N.J. Super. at 18-19 (quoting Parnell v. Rohrer Chevrolet Co., Inc.,


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 95 N.J. Super. 471, 477 (App. Div. 1967)). The bailment of Rivera's dog was

for the parties' mutual benefit, as both expected to profit from the mating.

      While a bailee is not an insurer of goods, "where goods subject to a

bailment are not returned or are damaged or lost, the bailor may be able to

recover under theories of either conversion or negligence." LaPlace,  404 N.J.

Super. at 600.

            Once a bailment exists and the loss of the goods while
            in the bailee's possession is established, a presumption
            of negligence arises, requiring the bailee to come
            forward with evidence to show that the loss did not
            occur through its negligence or that it exercised due
            care.

            [Jasphy,  364 N.J. Super. at 19.]

      Rivera made a prima facie showing her dog became ill while in Canseo's

care. She attributes the dog's illness to either Canseo's failure to feed the dog or

its ingestion of food to which it was unaccustomed. Canseo, however, testified

he tried to give the dog the food left by Rivera, which the animal refused to eat,

and it instead ate food he put out for his dog. Canseo's testimony was sufficient

to overcome the presumption of negligence. Moreover, the presumption was

overcome by the veterinarian records, which do not attribute the dog's illness to

a lack of food or ingestion of food to which the animal had an adverse reaction.

      Affirmed.

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