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Adams v. Buchko

February 14, 2008

MARC ADAMS, PLAINTIFF-RESPONDENT,
v.
EDITH BUCHKO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. SC-382-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2008

Before Judges S.L. Reisner and Baxter.

Defendant Edith Buchko appeals from an order of the Special Civil Part ordering her to pay $1070 in compensatory damages and $930 in punitive damages to plaintiff Mark Adams. We affirm.

I.

At the trial before Judge Sullivan, plaintiff testified that he learned through an internet advertisement that defendant had Shar-pei puppies for sale. Defendant advertised the dogs as being purebred and registered with the "Purebred Canine International Association" (PCI). Adams called defendant and made an appointment to see the puppies. He told her that this was his "first time buying a dog with papers" and told her that he wanted to breed dogs. Defendant assured him that it would be "no problem, I will take care of it." In other words, she represented that she would sell him a dog that he could use for breeding.

On July 31, 2006, Adams gave Buchko a deposit for a male puppy. The deposit receipt is titled "DEPOSIT for a PUREBRED CANINE INTERNATIONAL registered pup." The receipt makes no mention of the dog being sold as a pet. On August 12, 2006, Adams paid the remaining price for the dog and received a bill of sale which, again, indicated in large type that he was buying "a PUREBRED CANINE INTERNATIONAL registered pup." In small type at the bottom of the first section of the contract appeared a sentence reading "This animal is sold only as a pet."

According to Adams, when he later attempted to buy a female from other breeders, no one would sell him a female to breed with the male he bought from defendant, because the male puppy was not registered with the American Kennel Club (AKC). After making further inquiries, Adams learned that PCI was not a recognized dog breeding association, but rather was an organization that defendant created, and that defendant had been suspended from the AKC. According to Adams, he called defendant many times and left messages that he was "unhappy with the puppy and I needed to talk to her." When he finally reached her, she refused to take the dog back or refund his money and told Adams "you can kiss my a--, and you can take me to court."

According to Buchko, defendant never told her that he wanted to use the male puppy to breed. She testified that "[w]hen he picked up the puppy," he asked her to let him know "when I have another litter. He's interested in a female. I said, you want to breed? He says, probably." She contended she told Adams that both dogs would have to be registered with PCI in order to breed them. Buchko testified that she set up PCI herself "about 12 years [ago]." She contended that there were many dog breeding associations, and that AKC was only one of them. Buchko contended that two weeks after the sale, Adams called her, claiming that she had falsely told him that the puppy was AKC registered and accusing her of fraud. She also claimed she offered to sell the puppy for him if he was not happy with it. When questioned by the judge, Adams agreed that he wanted a refund and was willing to give the dog back. He reaffirmed this at oral argument on this appeal.

Judge Sullivan concluded on the record that defendant had committed "a fraudulent scheme" and had sold plaintiff a puppy that was not registered with a recognized breeding organization.*fn1

In a supplemental written opinion dated March 27, 2007, the judge concluded that defendant induced the plaintiff to make the purchase by representing that the dog was a pedigreed Shar-pei certified by Purebred Canine International. . . . Purebred Canine International is not a bona fide organization and is, [in] fact, defendant's own invention . . . not recognized by any dog show or by other breeders.

He concluded that defendant intentionally misrepresented that the dog "was properly papered" knowing that plaintiff would rely on that misrepresentation, and that plaintiff did rely on it to his detriment. He found defendant's actions "intentional, deliberate and outrageous." The judge concluded that the sale should be rescinded, and that ...


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