Opinion
No. CV-04 0129411S
February 24, 2006
MEMORANDUM OF DECISION RE WHETHER IRISH SETTER PUPPIES WRONGFULLY TAKEN AND WHETHER DAMAGES IN EMOTIONAL DISTRESS, ETC. SHOULD BE AWARDED THEREFOR
Background
The controversy at the heart of this litigation arises out of a contract between plaintiff Gary Pelletier and defendant Dori Bruce, an established breeder of Irish Setters. The contract provides that she will sell to him an Irish Setter female dog, hereafter often referred to as Meg. The contract also sets out the rights of the parties to the selection of any offspring that resulted from Meg being bred. As articulated hereinafter Meg gave birth to eight surviving Irish Setter puppies. This litigation reflects the parties' differing views as to the ownership of three of the eight puppies.
In this case plaintiff Gary Pelletier alleges that defendant Dori Bruce wrongfully took possession and transferred to a third person one of the Irish Setter puppies that belonged to him. Plaintiff Gary Pelletier further alleges that defendant Dori Bruce wrongfully communicated to the state police and other members of the public that he had taken two of the Irish Setter puppies that belonged to her. The plaintiff claims that these actions, among others, entitle him to bring this lawsuit in the following counts: conversion; abuse of process; defamation; invasion of privacy by being placed in false light; intentional misrepresentation; negligent misrepresentation; intentional infliction of emotional distress; interference with contractual relations; and violation of the Connecticut Unfair Trade Practices Act.
In her Answer, Defendant Dori Bruce denies that she is liable for any of the plaintiff's claims. Furthermore, in a Counterclaim she advances the following causes of action against the plaintiff: Breach of Contract; Conversion; Intentional Misrepresentation; Intentional Infliction of Emotional Distress; Tortious Interference with Business Relations; and a violation of the Connecticut Unfair Trade Practices Act.
After the conclusion of the trial the parties submitted written briefs in support of their positions.
Findings of Facts
From the testimony and exhibits presented in this case, the court finds the facts as follows:
1. On or about June 8, 2000, the plaintiff, Gary Pelletier, purchased a female puppy from the defendant, Dori Bruce for $600.00.
2. The defendant initially referred to the puppy as "Daisy". The plaintiff thereafter referred to the dog as "Megan" or" Meg". This dog is hereafter referred to as "Meg".
3. At the time the plaintiff purchased the puppy, the defendant, who is a breeder of Irish Setter puppies, gave the plaintiff a form contract with two addenda to take home with him for his review and signature.
4. One addendum to the contract refers to the buyer's ownership status for a dog owned as a pet. The pet addendum provides in pertinent part: "Buyer/s agree to neuter the dog as soon as medically recommended and provide confirmation to breeders. Co-ownership will be relinquished upon receipt of such documentation." (Plaintiff's Exhibit 2, p. 3; defendant's exhibit 1, p. 3.)
5. The second contract addendum refers to the buyer's ownership status for a dog used for breeding and show purposes. The breeding/show addendum provides in pertinent part:
All agree [the female dog] will not be spayed or bred without mutual agreement. In the event she is bred, all agree to work together in stud selection. Either may decide to whelp the Litter. Whoever whelps the litter will pick one and three [puppies in the litter]; the other will pick two and four. All reasonable expenses will be deducted from the sale of the remaining puppies, if any, by whoever whelped the litter or incurred expense. Thereafter, any remaining monies, if any, will be split equally. At the time of confirmation of an agreed upon spaying or the closure of the first litter, co-ownership will be relinquished.
(Plaintiff's exhibit 2, p. 4; defendant's exhibit 1, p. 4.)
6. On the evening of June 3, 2000, the plaintiff read the contract and the addendum.
7. The plaintiff signed the contract and the two addenda on June 8, 2000 and returned the documents to the defendant by mail.
8. The defendant signed the contract and both the pet and the breeding/show addenda as "breeder".
9. The defendant gave the plaintiff a partially-completed American Kennel Club (AKC) registration form, which the defendant signed as Meg's co-owner.
10. The plaintiff completed the AKC registration form by filling in Meg's registration name as "Airtechta's Spring Rose" and signing as Meg's co-owner.
11. The plaintiff mailed the completed AKC registration form, which listed the plaintiff and the defendant as co-owners of Meg, to the AKC for Meg's registration.
12. The AKC subsequently issued a registration certificate for Meg listing the plaintiff and the defendant as co-owners.
13. Meg was not spayed.
14. Health problems allegedly suffered by Meg did not prevent the plaintiff from having Meg spayed prior to October 2002.
15. Sometime in the Spring or Summer of 2001, the plaintiff purchased a male Irish Setter puppy from Kate Seymour, who is a breeder of Irish Setter puppies.
16. The plaintiff registered the dog he purchased from Kate Seymour with the AKC under the name "Cucuhullain Knight Ryder" and called the dog "Tucker". Tucker was not neutered.
17. The defendant was not aware of the plaintiff's purchase of Tucker and did not participate in Tucker's selection.
18. Plaintiff Gary Pelletier had no intention of mating Meg. His intention was to have her spayed . . . Although Meg and Tucker were kept in plaintiff's house, the plaintiff tried to keep them apart, and did not intend for them to mate.
19. Nevertheless, Meg and Tucker mated in October 2002, and Meg gave birth to a litter of eleven puppies. Eight of the puppies were stillborn and the remaining three puppies died within one day's time.
20. Meg and Tucker mated again, and on May 8, 2003, Meg gave birth to a litter of ten puppies. One puppy was stillborn. Of the nine surviving puppies, five were male and four were female. One of the male puppies died approximately four weeks after birth, leaving four male and four female puppies.
21. The plaintiff attempted to register the litter with the AKC. He was unable to do so because, as co-owner of Meg, the defendant's signature was required on the AKC litter registration application.
22. On July 13, 2003, the plaintiff brought all eight puppies along with Meg and Tucker to defendant Dori Bruce's home.
23. On July 13, 2003, the puppies were divided between the plaintiff and the defendant as follows:
CT Page 3899
a. Plaintiff Gary Pelletier selected the five puppies: Daisy, Blaze, Molly, Sally, Max and Ruby.
The plaintiff gave Daisy to his brother on July 13, 2003. (Plaintiff's testimony, Tr. 6/14/05, p. 68 1.6, 18.)
b. Defendant Dori Bruce selected only three puppies; namely, Ellie/Eva, Reilly, and Milo. She selected only three puppies as a way of compensating the plaintiff by allowing him to keep a fifth puppy for his work in whelping the litter and for expenses related thereto.
This puppy was called "Ellie" by the defendant and called "Eva" by the plaintiff.
24. In accordance with their selections, the plaintiff left the defendant's home with Blaze, Molly, Sally, Max and Ruby. Ellie/Eva, Reilly and Milo stayed at the defendant's home.
25. The value of each puppy is $600.00.
26. Both the plaintiff and the defendant signed the AKC Litter Registration Application as the owner of Meg, the "mother" of the litter. The plaintiff signed the AKC Litter Registration Application as the owner of Tucker, the "father" of the litter.
27. The AKC issued one registration application form for each puppy in the litter. Each of the AKC registration applications list both the plaintiff and the defendant as breeders and litter owners.
The Litter Registration Application referred to nine puppies although only eight puppies in the litter were then surviving; one of the male puppies having recently died. (Plaintiff's testimony, Tr. 6/10/05, p. 149 1.19-23.) The AKC subsequently issued nine registration applications.
28. On August 11, 2003, the plaintiff signed the AKC registration forms for Ellie/Eva, Reilly and Milo as each puppy's co-owner.
29. On August 11, 2003, the defendant signed the AKC registration forms for Daisy, Blaze, Molly, Sally, Max and Ruby as each puppy's co-owner.
30. On August 19, 2003, the plaintiff brought the three puppies of Meg's litter which he still possessed (Sally, Molly and Blaze) to the Colchester Veterinary Hospital for hernia surgeries. On the same day, the defendant brought Reilly and Ellie/Eva to that veterinary hospital for hernia surgeries.
31. At the veterinary office, the plaintiff signed a veterinary form authorizing medical treatment and indicating that he was the owner of the three puppies he brought with him to the office.
32. At the veterinary office, the defendant signed a veterinary form authorizing medical treatment and indicating that she was the owner of the two puppies, Reilly and Ellie/Eva.
33. When the plaintiff picked up his three puppies, he issued a check to the veterinary office in the amount of $681.00 as payment for the surgeries for all five puppies. The plaintiff's check was subsequently returned to the veterinary office for insufficient funds.
34. The defendant, who had an account with the veterinary office, paid the veterinary office for the total cost of the surgeries for the five puppies.
35. While the puppies Reilly and Ellie/Eva were in the defendant's possession, she took care to socialize the puppies and to maintain their physical health.
36. On October 5, 2003, the plaintiff and his partner, Ian Durkin, went to the defendant's home to install a French door at the defendant's request.
The plaintiff and the defendant had a short conversation concerning the puppies Reilly and Ellie/Eva. The plaintiff and the defendant specifically discussed the fact that Ellie/Eva had a sore leg. Ownership of the two puppies was not discussed. After the conversation ended, the defendant left her house to pick up her daughter. The plaintiff and Mr. Durkin remained in the defendant's house under the defendant's assumption that they would be working on the door installation.
While the defendant was out of her home, the plaintiff and Mr. Durkin took Reilly and Ellie/Eva into their possession and left the defendant's home with the puppies. The plaintiff did not have the defendant's permission to take the puppies and he did not inform the defendant that he intended to take the puppies. Before leaving with the two puppies, the plaintiff left the defendant a handwritten note stating: Dori, we are going to have to hold off on a few things for now. I'm concerned about the two pups especially Reilly and his rear end. I'm taking the two pups and will get them checked out. Please call with any questions."
37. Upon the defendant's return to her home, she found that the two puppies Reilly and Ellie/Eva were not there. She also found the plaintiff's handwritten note. After attempting to reach the plaintiff by cell phone without success, the defendant contacted the state police and told the police that the plaintiff had taken her two puppies.
38. The defendant also sent the plaintiff two e-mail messages in an attempt to obtain the return of the puppies and to resolve any issue between herself and the plaintiff regarding the ownership of the puppies.
39. In a further effort to obtain the return of the two puppies, the defendant also contacted several persons who might be in a position to secure the return of the puppies. Those persons whom the defendant contacted included: Helen Durkin, who is Mr. Durkin's mother; the plaintiff's neighbor and dog walker; local veterinarians; and members of the local Irish Setter Club.
40. The defendant relayed to each of these persons the same general message that the plaintiff had taken the puppies from her home and that she sought the puppies' return.
41. The plaintiff sought medical treatment by Dr. Louis Pieper for two puppies which the plaintiff represented to be Reilly and Ellie/Eva.
42. Although Dr. Pieper found that the puppies were in need of medical treatment, neither puppy was in such a condition as to require emergency medical treatment. However Dr. Pieper stated that a novice would not know that their condition was not one of an emergency nature.
Legal Constrict
American Jurisprudence explains the off-spring issue in this case. "The general rule, in the absence of a contract to the contrary is that the offspring or increase of tame or domestic animals belongs to the owner of the dame, or mother . . ." 4 Am.Jur.2d Sec. 10. See also Dunning v. Crofutt, 81 Conn. 101; 70 A 630 (1908). A contract specifying ownership of the offspring of an animal is valid and enforceable. Id. Accordingly, the contract entered into between the parties in this case is enforceable and governs the disposition of the gravaman of this case.
Both parties signed the contract. Gary Pelletier signed it first and then forwarded it to Dori Bruce to sign. He does not recall receiving a signed copy. A part of the signed contract is entitled "Addendum for contract with co-ownership status for breeding/show." (Emphasis added.) The use in the title of the term "co-ownership status" signifies that both parties owned Meg. Paragraph 3(b) of the contract speaks to the conditions of breeding the dog, the division of the litter between the parties, and the expenses of whelping the litter. This paragraph also specifies when co-ownership ends. In this regard, it states, inter alia, that "[a]t the time of confirmation of an agreed upon spaying or the closure of the first-litter, co-ownership will be relinquished." Clearly co-ownership of Meg ended when the first live litter was closed.
The court finds that the parties in this case entered into a valid contract that governs the ownership of the live litter produced by Meg. The court is instructed as to how to interpret this contract.
In interpreting the language of a contract it is the intention of the parties, "which must be gathered from the language of the instrument in light of the circumstances existing at the time of its execution, [which] is controlling." Collins v. Sears Roebuck Co., 164 Conn. 369, 373, 321 A.2d 444. The contractual terms are to be given their ordinary meaning and when the intention conveyed is clear and unambiguous, there is no room for construction.
CT Page 3903 Southern N.E. Contracting v. Norwich R.C. Diocesan, 175 Conn. 197, 199, 397 A.2d 108 (1978).
The court finds that the contract by its clear terms calls for the parties to allocate the puppies between themselves. The court finds that the parties made that allocation and that defendant Dori Bruce was entitled to keep Ellie/Eva, Reilly and Milo.
Rulings on Plaintiff's Complaint
As to the Counts of the Plaintiff Gary Pelletier's Complaint, the court finds as follows:
Count One: Breach of Contract
This count was withdrawn on the Record.
Count Two: Conversion.
The court finds that the defendant did not wrongfully keep a third puppy.
Count Three: Abuse of Process.
The count finds that the defendant did not abuse legal process.
Count Four: Defamation
In his brief the plaintiff argues that by communicating that the defendant stole Eva and Reilly she is liable for defamation. The court does not find evidence of the defendant using the word "stole." The words that she used indicated that the plaintiff had "taken" the puppies.
The court also finds that the puppies belonged to defendant Dori Bruce. Accordingly, the court finds for the defendant on this Count.
Count Five: Defamation
In this count the plaintiff alleges that the defendant reported to officials that the he was running a puppy mill, and that this resulted in defamation. The court finds that case law has not been presented which supports this claim.
Count Six: Invasion of Privacy by False Light.
The court finds that the plaintiff has not proved Invasion of Privacy by False Light for the reason that there is no proof that the defendant called the plaintiff a thief, and the puppies subject of the controversy belonged to Dori Bruce.
Count Seven: Intentional Misrepresentation.
The court finds that the plaintiff has not proved the elements of this count for Intentional Misrepresentation. The court also finds that the puppies subject of the controversy belonged to Dori Bruce.
Counts Eight and Eleven: Negligent Misrepresentation
The court finds that the plaintiff has not proved the elements of this count of Negligent Misrepresentation. The court also finds that the puppies subject of the controversy belonged to Dori Bruce.
Count Nine: Intentional Infliction of Emotional Distress
The court finds that the plaintiff has not proved the elements of this count of Intentional Infliction of Emotional Distress. The court also finds that the puppies subject of the controversy belonged to Dori Bruce.
Count Ten: Interference with Contractual Relations.
The court finds that the plaintiff has not proved the elements of Interference with Contractual Relations. The court also finds that the puppies at issue belonged to Dori Bruce.
Count Twelve: Violation of Connecticut Unfair Trade Practices Act.
The court finds that the plaintiff has not proved a violation of the Connecticut Unfair Trade Practices Act.
Rulings on Defendant's Counter-claims Count One: Breach of Contract
The count finds for Gary Pelletier on this breach of contract count because he did not intend that Meg mate.
Count Two: Conversion
The credible evidence in this case establishes that Dori Bruce has proved that 1) puppies Eva and Reilly belonged to her; 2) Gary Pelletier deprived her of these puppies for an indefinite period of time; 3) Gary Pelletier's conduct in keeping the puppies was unauthorized; and 4) she was harmed thereby. News America Marketing In-Store, Inc. v. Marcus, 86 Conn. 527, 545 (2004).
The court also notes that Gary Pelletier was mistaken as to his claim of right to Eva and Reilly, and Milo.
Nevertheless, the court finds that Dori Bruce has proved her claim of conversion.
Count Three: Breach of Contract
Dori Bruce claims that Gary Pelletier is liable for not completing contracting work of installing French doors and making other improvements to her house for which she claim she paid approximately $1,400.00.
She also claims that he violated the Home Improvement Act. Gary Pelletier replies by asserting that Dori Bruce paid only $1,000 not the contract price of $1,900 and that since there was no written contract, as required by the Home Improvement Act he abandoned his claim for payment of the balance due even though the work performed constituted a significant improvement to her property. Furthermore, Gary Pelletier represents that he provided additional substantial work at no charge.
The court finds that the Home Improvement Act was violated since C.G.S. Sec. 20-429 requires a written contract in conformity therewith, and that contract was not provided.
Count Four: Intentional Misrepresentation.
The court finds for Gary Pelletier on this Count for the reason that he was inexperienced in handling the puppies' transaction and he mistakenly thought that he had a right to take the puppies. CT Page 3906
Count Five: Intentional Infliction of Emotional Distress.
The court finds for Gary Pelletier on this Count for the reason stated in Count Four above, and for the reason that there was insufficient proof of severe emotional distress.Count Six: Negligent Infliction of Emotional Distress
The court finds for Gary Pelletier on this Count for the reason there was insufficient proof of severe emotional distress.
Count Seven: Tortious Interference with Business Relations
The court treats this claim as abandoned since it was not briefed. In addition, the court finds insufficient proof of damages on this count.
Count Eight: Violation of the Connecticut Unfair Trade Practices Act, 42-110a, et seq.
The court finds that Gary Pelletier violated the Connecticut Unfair Trade Practices Act by not providing Dori Bruce with a written contract as required by the Home Improvement Act.
Damages
The court enters the following award to Dori Bruce:
A. For Breach of Contract by taking and keeping Eva and Reilly $1,200.00
B. For violation of the Connecticut Unfair Trade Practices Act by violating the Home Improvement Act 400.00 __________ $1,600.00
The court was not presented with sufficient evidence for considering an award of damages relative to Dori Bruce's claimed loss to her breeding program.
Order
The court orders a hearing for the consideration of what attorneys fees, if any, should be awarded for the violation of the Connecticut Unfair Trade Practices Act.