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Patricia W. Noxon v. Barbara Zuhowski

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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