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Bourgeois v. Levine

April 23, 2010

LISA BOURGEOIS, PLAINTIFF-RESPONDENT,
v.
ALLAN LEVINE AND PATRICK BLANCHARD, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. SC-4753-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 14, 2010

Before Judges Fisher and Espinosa.

Plaintiff Lisa Bourgeois purchased a puppy, which she named Roxy, from defendants*fn1 for $500 by way of a contract dated July 26, 2008. Immediately following the transaction, Roxy became ill and was taken by plaintiff to a veterinarian, who issued a certificate of unfitness on August 1, 2008. The parties thereafter disagreed about their respective rights and obligations, and plaintiff eventually filed suit against defendants in the Special Civil Part. Following a brief trial, the judge entered judgment in favor of plaintiff and against defendants in the amount of $596.

Defendants appealed, arguing that the judge misapplied the applicable law and that her findings of fact were against the weight of the evidence. Defendants also argue that the judge erred in failing to dismiss the action because of plaintiff's failure to produce expert testimony. We reject all defendants' arguments except that we agree that a remand is required for the entry of an amended judgment as to damages and for an identification as to which, or both, of the defendants is responsible for the damages incurred by plaintiff.

As an initial matter, we recognize that during trial the judge asked defendant Levine whether he was a "pet dealer." He denied he was and the judge appears to have accepted this as fact in rendering her decision. Accordingly, the administrative rules that regulate the sale of animals, N.J.A.C. 13:45A-12.1 to 12.3, are not applicable; they apply only to "pet dealers." See, e.g., N.J.A.C. 13:45A-12.3(a) (emphasis added) (declaring that it "shall be a deceptive practice for a pet dealer to sell animals... without complying with the... minimum standards" contained in the various provisions of the regulations). As a result, we look to the parties' contract to ascertain their rights and liabilities.

Interestingly, the contract includes the exact provisions required by N.J.A.C. 13:45A-12.3 for the sale of animals by "pet dealers." However, because defendants are not pet dealers, we interpret those contractual provisions not as requirements imposed by operation of law -- a circumstance that might warrant a strict construction -- but with the understanding that they are the parties' voluntary stipulations intended to govern their undertaking.

By way of the contract, plaintiff purchased Roxy for $500.*fn2

The contract also delineated plaintiff's rights if Roxy proved unfit. The contract declared that if "a licensed veterinarian certifies your animal to be unfit for purchase within 14 days following receipt of your animal," plaintiff would have the right to elect one of the following remedies:

1. Return your animal and receive a refund of the purchase price including sales tax; or

2. Keep your animal and attempt to cure it; or

3. Return your animal and receive an animal of your choice of equivalent value.

As noted above, plaintiff obtained a certificate of unfitness from a veterinarian within fourteen days of the transaction. In addition, the record leaves no doubt that plaintiff never returned Roxy but instead kept Roxy despite the certificate of unfitness; in short, plaintiff elected the second remedy. As a result, plaintiff's rights and the seller's liabilities turned on the following provision of the contract: "Veterinary fees limited to the purchase price of the animal, including sales tax, which were related ...


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