December 14, 2007
ERWIN WALTER, PLAINTIFF-RESPONDENT,
EDWARD SHAHIED, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Special Civil Part, Somerset County, Docket No. SC-1322-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted - September 26, 2007
Before Judges Parker and R. B. Coleman.
Defendant Edward Shahied appeals from a judgment entered against him and in favor of plaintiff Erwin Walter in the Law Division, Somerset County, Special Civil Part, finding defendant liable for the veterinary bills for plaintiff's dog. On January 18, 2007, Judge Fred H. Kumpf conducted a bench trial on plaintiff's claims that on the night of May 5, 2006, plaintiff's dog was bitten by defendant's dog and that as a result, his dog suffered severe injuries to its neck and stomach, necessitating treatment.
Defendant denied that his dog was responsible. Rather, defendant testified that his dog does not match plaintiff's description of a "a muscular dog," and that there was a pit bull in the area on the night of the attack that defendant believed to be a more likely culprit. Although he did not have a photograph of the actual neighborhood pit bull, defendant presented photographs of his dog and of a representative pit bull to show that plaintiff could have been confused when he claimed that defendant's dog was the one that attacked his dog.
After he considered the respective testimony of the parties and their exhibits, Judge Kump ruled:
The plaintiff is relatively certain that it was the defendant's dog that actually attacked, as opposed to the Pit Bull that was also out that same evening. He's the only one who really saw the attack by the other dog. He was only about 25 feet away and there was certainly adequate light, with the spotlights that were on, so he was in a position to make the observation about the dog.
I find that it was the defendant's dog that was the dog that attacked, rather than the American Pit Bull and, accordingly, the defendant is responsible for the medical bills for the dog . . . . So I'll enter judgment on behalf of the plaintiff, against the defendant, in the amount of $559.57.
On appeal, defendant argues that plaintiff failed to meet his burden of proof by a preponderance of the evidence. We are constrained to disagree.
"An appellate court plays a limited role in reviewing the findings on which a trial judge has based a judgment entered in a non-jury case." McDonald v. Estate of Mavety, 383 N.J. Super. 347, 358 (App. Div. 2006). "[G]reat weight is given to the finding upon questions of fact . . . because [the judge] hears the case, sees and observes the witnesses and hears them testify and has better opportunities to judge their credibility than the reviewing court." Capozzoli v. Capozzoli, 1 N.J. 540, 543 (1949). "Findings by the trial judge are considered binding on appeal when supported by adequate substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The issue on appeal, therefore, is whether there is substantial credible evidence to support the trial judge's findings and conclusions. Ibid.
Judge Kumpf heard evidence from both parties, and where questions of fact arose, he assessed each witness's credibility. Based on our independent review of the proofs, we are satisfied that substantial credible evidence exists to support the trial judge's decision. Thus, we will not disturb that decision.
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