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
APPELLATE
DIVISION
JOSEPH GARDNER and
PHYLLIS GARDNER,
Appellant,
v.
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
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.
________________________
Primary Appellate Judge
____________________
Daniel D. Diskey
Circuit Judge
_____________________
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.,