County Small Claims Court:  CONSUMER LAW– Animals-even in the absence of a transcript, case must be reversed where applicable statutes are not satisfied; statutes required  that there be a certification that the animal was “unfit for purchase due to a congenital or hereditary disorder” and that the buyer afford the seller an opportunity to have an examination by a licensed veterinarian of the dealer’s choosing. Final Judgment reversed. Gardner v. Bray, 512007AP10ES ( Fla. 6th Cir. App. Ct. August 25, 2008).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JOSEPH GARDNER and

PHYLLIS GARDNER,        

                        Appellant,

v.

 

SHARON BRAY, and

RICHARD BRAY,                                                   Case No: 512007AP000010ES                                 Appellee.                                                           

________________________/

 

Joseph Gardner and Phyllis Gardner,

Appellants

 

Richard Bray and Sharon Bray,

Appellees . 

 

 

ORDER AND OPINION

 

            This appeal arises from a Final Judgment of the trial court which ordered the Plaintiff/Appellee’s  (Brays)[1]  recover the sum of $850.00 for reimbursement of the purchase price of a dog purchased from Defendant/Appellant’s,  as well as their reasonable veterinarian expenses.  This Court REVERSES the Order of the trial court.

Plaintiffs (Brays) purchased from defendant a Bichon Frise puppy on June 2, 2006.  In August 2006, the dog became ill and plaintiffs took her to their veterinarian, who treated the animal for approximately three weeks. The health of the animal deteriorated to the extent that plaintiffs permitted their veterinarian to euthanize the animal on August 27, 2006.

Richard and Sharon Bray sued the Gardner’s for $2586.00, pursuant to F.S. 828.29(5), which provides that within one year of the sale of an animal with a congenital disorder, the pet consumer can exercise one of three options.  Two of the options include returning the animal to the pet dealer which in this case was not an option since the animal was put down. The third option provides that the pet consumer retain the animal and receive reimbursement for the veterinary costs not exceeding the purchase price of the animal.

Prior to trial, the parties stipulated that in lieu of testimony from their veterinarians, they could submit written reports and documents. The plaintiff submitted a document from Chris Gretzinger, VMD, the veterinarian who cared for the dog, which detailed her medical history from the first time she was brought in to him  through the necropsy. The doctor stated that the necropsy revealed a small liver with many abnormal large vessels and the biopsy findings were consistent with a portosystenic shunt. The plaintiff also submitted the surgical report on which Dr. Gretzinger relied upon.

The trial court found that the plaintiffs were entitled to recover a total of $850.00.  In the Order, the Court made a specific finding that “[t]he necropsy determined that the animal suffered from both a portosystemic shunt and rimary hypoplasia of the portal vein. Both disorders were CONGENITAL (emphasis added).  The Court went on to say that the action was governed by Chapter 828.29(5), Florida Statutes.

Florida Statute 828.29(5) provides, in relevant part;

…if, within one year following the sale of an animal subject to this section, a licensed veterinarian of the consumer’s choosing certifies such animal to be unfit for purchase due to a congenital or hereditary disorder which adversely affects the health of the animal; ...the pet dealer shall afford the consumer the right to choose one of the flowing options; 

(a) The right to return the animal and receive a refund of the purchase price…

(b)The right to return the animal and receive an exchange dog….

© The right to retain the animal and receive reimbursement for reasonable veterinary costs for necessary services and treatment related to the attempt to cure or curing of the dog…

 

As the Court found in its’ Order, option (a) and option (b) include returning the animal to the pet dealer (Gardners) which in this case was not an option since the animal had been euthanized. The third option provides that the pet consumer (Brays) retain the animal and receive reimbursement for the veterinary costs not exceeding the purchase price of the animal. Based on that, the Court found the Brays entitled to recovery.  

In the absence of a transcript of the hearing below, this Court is  governed by the principle of law which imparts a presumption of correctness to the trial court's judgment.  Anderson v. State  442 So.2d 397, 398 (Fla. 5th DCA 1983)(failure to supply an adequate record leaves the appellate court with no alternative but to affirm the order);  See also, Suiero v. State, 248 So.2d 219, 220-221 (Fla. 4th DCA 1971); McCarthy v. State,  417 So.2d 1153, 1154 (Fla. 4th DCA 1982).  Accordingly, we must accept the trial court’s finding that the disorders revealed by the necropsy were in fact congenital in nature. However, even in the absence of a transcript, the appellant has been able to demonstrate a basis for reversal based solely on the record before this Court. Specifically,  Florida Statute 828.29(5) requires that there be a certification that the animal was “unfit for purchase due to a congenital or hereditary disorder.”  Further, before the third option can be exercised, the buyer must afford the seller an opportunity to have an examination by a licensed veterinarian of the dealer’s choosing, as is permitted under 828.29(10), which the record demonstrates was not done.  Accordingly, since Florida Statute 828.29(5) and Florida Statute 828.29(5) were not satisfied, this Court must reverse. It is therefore,

ORDERED AND ADJUDGED that the ruling of the trial court is  REVERSED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  August,  2008.                                                  

                                                                                    ________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                       

                                                                                    _____________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

 

Copies furnished to:

Joseph and Phyllis Gardner

Sharon and Richard Bray



[1] It should be noted that the Appellees, Sharon and Richard Bray, are in no way related to the undersigned Judge W. Lowell Bray, Jr.,