NIDIA J. RIVERA VS. JUAN CANSEO (SC-000548-18, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1580-18T1
NIDIA J. RIVERA,
Plaintiff-Appellant,
v.
JUAN CANSEO and
BRENDA REALI,
Defendants-Respondents.
_____________________________
Submitted December 5, 2019 – Decided December 17, 2019
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. SC-000548-
18.
Nidia J. Rivera, appellant pro se.
Respondents have not filed a brief.
PER CURIAM
Plaintiff Nidia J. Rivera appeals from the October 31, 2018 order of the
Special Civil Part dismissing her complaint for damages incurred as a result of
her dog becoming ill while in defendants' care. We affirm.
I.
The following facts are derived from the record. Rivera owns a female
chihuahua. Defendant Juan Canseo owns a male chihuahua. Rivera and Canseo
reached an oral agreement to have their dogs mate. Rivera was to obtain puppies
from the mating and Canseo was to receive consideration for the use of his dog. 1
Rivera brought her dog to Canseo's home, along with an adequate supply
of a brand of dog food to which the dog was accustomed. According to Rivera,
her dog was in good health when she left her at Canseo's home. Canseo placed
Rivera's dog and his dog in the basement together.
The following day, Canseo telephoned Rivera to report her dog refused to
eat the food she left and instead ate some of his dog's food. He also told Rivera
her dog had loose stool. Although Rivera wanted to pick up the dog, Canseo
convinced her to wait until the next day to give the dogs additional time to mate.
1
The parties dispute the consideration to be paid Canseo. He testified he was
to be paid $500, regardless of whether Rivera's dog was impregnated. Rivera
testified Canseo was to receive the pick of the litter if the mating ultimately
resulted in the birth of puppies. The exact nature of Canseo's expected
consideration is not material to our analysis of Rivera's claims.
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Rivera sent her daughter to pick up the dog the next day. When her
daughter first arrived at Canseo's home the dog was locked alone in the
basement. Defendant Brenda Reali, Canseo's wife, said she did not have the key
to the basement door and Rivera's daughter would have to return after Canseo
arrived home. On her second visit that day, Rivera's daughter retrieved the dog
from Canseo and brought it to Rivera.
Rivera immediately noticed the animal appeared sick and dehydrated. She
took the dog to a veterinarian who treated the animal overnight with fluids and
antibiotics. The dog recovered and is not carrying puppies. Rivera incurred
$1,276.58 in veterinarian fees. Veterinarian records indicate the dog suffered
from hypoglycemia, dehydration, and hyperphosphatemia, secondary to young
age and dehydration. The records do not identify a cause of the dog's illness and
do not attribute her symptoms to either a lack of food or ingestion of food to
which the dog was unaccustomed.
Rivera filed a complaint in the Special Civil Part, seeking $1,336.28 in
damages from defendants for neglect and abuse of her dog. 2
2
Although Rivera sought $1,336.28 in damages in the complaint, the evidence
admitted at trial established $1,276.58 in veterinarian fees.
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On October 31, 2018, a trial was held before Judge Mark Cimino. After
hearing the testimony of Rivera and Canseo, and reviewing the veterinarian's
records, the judge concluded Rivera had not established by a preponderance of
the evidence defendants caused her dog to become ill. As the judge explained:
I read through this report, and nowhere in this report
does it say that . . . somehow that they're at fault. And,
that's the problem. It doesn't say because of their poor
care, or . . . that this dog has[ not] been fed properly
. . . it does[ not] say anything like that in here in this
report. It just says that the dog was noted to be
dehydrated.
....
It says, the dog has[ not] eaten since Sunday, not that
the dog . . . has[ not] been fed. That's a very big
difference.
....
And, the doctor does[ not] say . . . that they gave the
dog the wrong food, or . . . anything about the dog
having the wrong food, or the diet being off.
On October 31, 2018, the trial court entered an Order dismissing the complaint.
This appeal followed. Plaintiff raises the following argument:
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGEMENT [SIC] TO PLAINTIFF
[SIC] BECAUSE THE PLAINTIFF DID NOT HAVE
SUFFICIENT EVIDENCE OF LIABILITY BEING
HELD AGAINST THE DEFENDANTS IN THIS
MATTER.
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II.
Our scope of review of the judge's findings in this nonjury trial is limited.
We must defer to the judge's factual determinations, so long as they are
supported by substantial credible evidence in the record. Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). This court's
"[a]ppellate review does not consist of weighing evidence anew and making
independent factual findings; rather, [this court's] function is to determine
whether there is adequate evidence to support the judgment rendered at trial."
Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.
1999). However, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Having carefully reviewed Rivera's arguments in light of the record and
applicable legal principles, we affirm the October 31, 2018 order for the reasons
stated by Judge Cimino in his well-reasoned oral opinion. We add the following
comments.
The record establishes Rivera created a bailment when she left her dog at
defendants' home. "A bailment may be created by contract, either express or
implied, or by operation of law or statute." LaPlace v. Briere, 404 N.J. Super.
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585, 598 (App. Div. 2009). "The cases dealing with a chattel of one person
which is left by him on the premises of another, indicate that there is a bailment
if the latter is given primary control of the chattel for the time being." Moore's
Trucking Co. v. Gulf Tire & Supply Co., 18 N.J. Super. 467, 469-70 (App. Div.
1952). For example, a bailment is created when jewelry is checked with a
swimming pool attendant, diamonds are delivered to a retail jeweler for sale, an
automobile is left in a shop to be washed, and an airplane is stored in a hanger.
Id. at 470; see also State v. Goodmann, 390 N.J. Super. 259, 266-67 (App. Div.
2007) (holding film left with a store for developing gave rise to a bailment);
Jasphy v. Osinsky, 364 N.J. Super. 13, 18 (App. Div. 2003) (noting a bailment
arose when fur coats were left with defendant for storage and cleaning).
Here, Rivera left her dog in defendants' primary control for several days.
That Rivera did not have the ability to remove the dog from defendants' home
was established when her daughter discovered the dog locked in defendants'
basement with Reali present with no key to the basement door. Rivera was not
permitted access to her dog until Canseo returned to the home.
"When a bailment has mutual benefit for the bailor and bailee, the bailee
has a duty to 'exercise reasonable care for the safekeeping of the chattel bailed.'"
Jasphy, 364 N.J. Super. at 18-19 (quoting Parnell v. Rohrer Chevrolet Co., Inc.,
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95 N.J. Super. 471, 477 (App. Div. 1967)). The bailment of Rivera's dog was
for the parties' mutual benefit, as both expected to profit from the mating.
While a bailee is not an insurer of goods, "where goods subject to a
bailment are not returned or are damaged or lost, the bailor may be able to
recover under theories of either conversion or negligence." LaPlace, 404 N.J.
Super. at 600.
Once a bailment exists and the loss of the goods while
in the bailee's possession is established, a presumption
of negligence arises, requiring the bailee to come
forward with evidence to show that the loss did not
occur through its negligence or that it exercised due
care.
[Jasphy, 364 N.J. Super. at 19.]
Rivera made a prima facie showing her dog became ill while in Canseo's
care. She attributes the dog's illness to either Canseo's failure to feed the dog or
its ingestion of food to which it was unaccustomed. Canseo, however, testified
he tried to give the dog the food left by Rivera, which the animal refused to eat,
and it instead ate food he put out for his dog. Canseo's testimony was sufficient
to overcome the presumption of negligence. Moreover, the presumption was
overcome by the veterinarian records, which do not attribute the dog's illness to
a lack of food or ingestion of food to which the animal had an adverse reaction.
Affirmed.
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