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Hogan v. Frasco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 10, 2007

MICHAEL HOGAN, PLAINTIFF-APPELLANT,
v.
DONNA FRASCO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Special Civil Part, Bergen County, SC-4144-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2007

Before Judges Axelrad and Sapp-Peterson.

Plaintiff appeals from the entry of judgment, following a bench trial, in favor of defendant on her counterclaim arising out of a skirmish between the parties' dogs which purportedly caused injuries to both dogs. The trial judge found that plaintiff's dog attacked defendant's dog, and awarded defendant damages of $348.58 on her counterclaim. The court delivered a supplemental opinion, pursuant to Rule 2:5-1(b), in which it noted that it found the testimony presented by the defense more credible than that presented by plaintiff. Plaintiff contends (1) the verdict was against the weight of the evidence, (2) he was prejudiced by a verbal exchange that occurred during trial involving a court officer, (3) the court's supplemental decision represented an attempt to "legitimize" the court's earlier decision, which was not supported by the record, and (4) if, as the court found, plaintiff's wife was holding their dog, then the court should not have concluded that plaintiff was liable on defendant's counterclaim.

After carefully considering the record and plaintiff's brief, we are satisfied that the judgment is based on findings of fact which are adequately supported by the evidence, and that all of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Nonetheless, we add these comments.

According to the testimony of plaintiff and his witness, his spouse, they were walking their dog in the street just in front of defendant's home when defendant's dog ran out, bit plaintiff's dog, and plaintiff's dog in turn grabbed defendant's dog by the scruff of the neck and held it until plaintiff's spouse commanded it to let go. Defendant testified that her dog was unleashed on her property and she observed plaintiff's spouse having difficulty controlling the dog. She was startled, bent down to scoop up her dog, and came face to face with plaintiff's dog, which lunged toward her. She immediately stepped back, at which point plaintiff's dog grabbed her dog by the scruff of the neck.

The trial court, in its findings of fact, determined that defendant's testimony was more credible than the testimony of plaintiff and his spouse. In reaching that determination, the judge specifically noted plaintiff did not take his dog to the veterinarian until two days after the incident and despite plaintiff's testimony that his dog was bit on its hindquarter, "there [was] absolutely no evidence at all of that injury having taken place. . . . [T]he exhibit presented . . . [did] not indicate any rabies shots, any wound clean, or any wound." On the other hand, the judge found that defendant's veterinary bill and photos of defendant's dog admitted into evidence, as well as defendant's testimony, established that defendant's dog sustained a "significant injury."

A trial court's findings in a bench trial are generally "binding on appeal when supported by adequate, substantial credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1997) (citing Rova Farms, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We are thus required to grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997); see also Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989).

As the trier of fact, the trial judge had the clear authority to reject plaintiff's testimony and other documentary evidence submitted by plaintiff, and accept defendant's evidence as reflective of what actually transpired between the two dogs.

We conclude that the judge's findings are not so "manifestly unsupported by or inconsistent" with the competent evidence to warrant our intervention and correction. Rova, supra, 65 N.J. at 484.

Affirmed.

20071210

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