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Patricia W. Noxon v. Barbara Zuhowski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 29, 2011

PATRICIA W. NOXON, PLAINTIFF-APPELLANT,
v.
BARBARA ZUHOWSKI, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. SC-001895-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2011

Before Judges Wefing and Koblitz.

Plaintiff Patricia W. Noxon appeals from the court's dismissal, after trial, of her Special Civil Part complaint alleging that defendant Barbara Zuhowski breached a contract between the parties to pay plaintiff with a "pick of the litter" female puppy as a stud fee for the use of plaintiff's champion male golden retriever, Reagan. After reviewing the record in light of the contentions advanced on appeal, we reverse and award $1200 to plaintiff as a stud fee.

The facts are largely undisputed. The parties had been friends for many years. Defendant was plaintiff's hairdresser. Plaintiff breeds golden retrievers. In 2005, defendant bought a female dog, Bailey, from plaintiff for $2000. They entered into a lease agreement from November 3, 2008 to February 1, 2009, to lease Bailey back to plaintiff, making both parties co-owners of Bailey so that plaintiff could show any of Bailey's puppies in a class called "bred by exhibitor" under the rules of the American Kennel Club. Bailey gave birth to five puppies on January 20, 2009, after being artificially inseminated with Reagan's semen. Plaintiff picked a female, Millie, as payment of the stud fee. Two other female puppies from the litter were sold for $2500 each.

After Millie was weaned at seven and one-half weeks, plaintiff asked defendant to keep Millie because plaintiff had a litter of puppies who could not mix with Millie for health reasons. In exchange, plaintiff agreed to give Bailey a bath and grooming. Plaintiff told defendant not to feed Millie Dr. Harvey's organic dog food, but defendant did so anyway. At three months old, Millie became ill. The veterinarian who treated Millie testified that the organic dog food caused Millie's health problem, secondary nutritional hyperparathyroidism due to insufficient calcium in the diet. Defendant spent $1217 on Millie's veterinarian bills.

The veterinarian told the parties that Millie should remain with her mother to recuperate. After hearing this, plaintiff threw up her hands and said, "You might as well keep her." Plaintiff meant that defendant should keep Millie until she was restored to good health. Defendant understood the comment to mean that she could keep Millie permanently. Defendant had Millie spayed and kept her for a pet. The veterinarian testified that Millie was worth $900 spayed.

Plaintiff sent defendant a bill for $1200 for the stud fee and had Millie's papers changed to reflect ownership by defendant alone.

The trial court found that the parties entered into two contracts; a contract for stud services, which was completed when plaintiff chose Millie, and a contract to board Millie, which was also completed. The court then dismissed the complaint.

On appeal plaintiff argues the following issues, I. THE TRIAL COURT JUDGE ERRED IN DISMISSING THE PLAINTIFF-APPELLANT'S COMPLAINT AS THE ORIGINAL STUD FEE CONTRACT HAD NOT BEEN FULFILLED AS THE PLAINTIFF-APPELLANT NEVER RECEIVED POSSESSION OF HER PICK PUPPY NOR ANY COMPENSATION FOR THE STUD SERVICE PROVIDED.

II. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS A BOARDING CONTRACT AS THE DEFENDANT-RESPONDENT CANNOT LEGALLY BOARD DOGS IN THE STATE OF NEW JERSEY UNLESS SHE IS DULY LICENSED AND HER FACILITY CONFORMS TO THE REQUIREMENTS OF THE STATE OF NEW JERSEY AS SET FORTH IN N.J.A.C. 8:23a-1.1 THROUGH 8:23a-1.13.

III. THE TRIAL COURT ERRED IN FAILING TO DETERMINE IF THE CO-PLAINTIFF, DAN NOXON, WAS A REAL PARTY IN INTEREST IN ORDER TO APPEAR AND PRESENT THIS CASE BEFORE THE COURT PURSUANT TO R. 1:21-1(a).

The issues presented before the trial court were issues of law rather than credibility, as the evidence was not in dispute. "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. of Am., 65 N.J. 474, 484 (1974). We especially defer to the trial court's credibility findings. Ramos v. M & F Fashions, 154 N.J. 583, 594-95 (1998); see also State v. Locurto, 157 N.J. 463, 470 (1999). We need not, however, afford any deference to the trial court's legal conclusions, and we independently evaluate those legal assessments de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008),

certif. denied, 199 N.J. 542 (2009). A trial court's legal interpretation of the meaning of a contract term is a question of law and thus is subject to de novo appellate review. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001); Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998).

When courts are called upon to enforce contractual agreements, their main objective is to carry out the mutual intent of the parties. Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269 (2006). Therefore, in "interpreting a contract, a court must try to ascertain the intention of the parties as revealed by the language used, the situation of the parties, the attendant circumstances, and the objects the parties were striving to attain." Celanese Ltd. v. Essex Cnty. Imp. Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). Where there is ambiguity as to the meaning of a contractual term, however, the Supreme Court has stated that "courts will consider the parties' practical construction of the contract as evidence of their intention and as controlling weight in determining a contract's interpretation[.]" Cnty. of Morris v. Fauver, 153 N.J. 80, 103 (1998).

The parties entered into a contract in which plaintiff would provide her dog as a stud and receive the female pick of the litter in return. Defendant then agreed to keep Millie for the nominal consideration of a one-time dog grooming.*fn1 "'A bailment is created by the delivery of personal property by one person to another in trust for a specific purpose, pursuant to an express or implied contract to fulfill that trust.'" LaPlace v. Briere, 404 N.J. Super. 585, 598 (App. Div.) (quoting 8A Am. Jur.2d Bailments § 1(1997)), certif. denied, 199 N.J. 133 (2009). "In a bailment for mutual benefit, a bailee has a duty to exercise reasonable care for the safekeeping of the subject of the bailment and will be liable for any loss caused by its failure to do so." Id. at 602. Defendant fed Millie defective food, which caused defendant to incur veterinarian fees. As a bailee, defendant was obligated to pay for the injury she unintentionally caused, especially considering that plaintiff specifically warned her not to feed Millie this particular organic dog-food. See ibid. ("When proofs are presented showing that goods were damaged while in the care of a bailee, a presumption of negligence arises and in those circumstances, a prima facie case is established against the bailee.") (citation omitted).

Plaintiff's comment to defendant to keep Millie was misinterpreted by defendant to be a permanent gift of the dog. See 1 Corbin on Contracts § 4.10 at 618 (1993) ("[I]f the parties had materially different meanings, and neither one knew or had reason to know the meaning of the other, there is no contract."); see also Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580, 600-01 (2010) (holding that there was no enforceable oral agreement where "[t]he parties acted in good faith, but under a mutual mistake about the true meaning of the settlement"). Neither party should benefit from this misunderstanding. See Shapiro v. Solomon, 42 N.J. Super. 377, 384 (App. Div. 1956) ("[W]here the minds of parties seeking to contract fail to meet, and services are rendered under the assumption that there is a contract, an obligation to pay the reasonable worth thereof will ordinarily be raised by the law."). Due to the parties' misunderstanding, Millie was never delivered to plaintiff and was rendered useless to plaintiff, a breeder, by defendant's unilateral decision to spay Millie. Under these circumstances, "the measure of damages is the benefit conferred upon the party against whom the quantum meruit claim is asserted." Facto v. Pantagis, 390 N.J. Super. 227, 235 (App. Div. 2007). Millie may have been worth $2500 prior to spaying, but her market value was $900 after that procedure.

Neither her value before or after is a reasonable assessment of the benefit conferred upon defendant. Plaintiff indicated the fair value of the benefit, the stud service, by billing $1200 for that service. Both parties appear to have acted in good faith throughout their dealings, which nonetheless resulted in the unfortunate demise of their friendship.

In light of our decision on Points I and II of plaintiff's brief, we need not address Point III.

Reversed and remanded for the entry of an order directing defendant to pay plaintiff the stud fee of $1200.


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