Marcia Richmond v. Sofia Martianou

• Court: New Jersey Superior Court Appellate Division
• Decided: January 3, 2024
• Docket: A-0773-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0773-22

MARCIA RICHMOND, KENDELL BENNETT, and ARNOLD KENNETH RICHMOND II,

Plaintiffs-Respondents,

v.

SOFIA MARTIANOU,

Defendant-Appellant. __________________________

Submitted December 12, 2023 – Decided January 3, 2024

Before Judges Whipple, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. DC-002982-22.

Kristina Bergsten (Animal Law Firm), attorney for appellant.

Nehmad Davis & Goldstein, attorneys for respondents (Michael Carmine Donio, on the brief).

PER CURIAM Defendant Sofia Martianou appeals from an October 5, 2022 order

granting possession of a dog to plaintiffs Marcia Richmond, Kendell Bennett,

and Arnold Kenneth Richmond II. 1 We affirm.

We recite the facts from the evidence presented to the judge during a

hearing. Bennett and Arnold are siblings. Marcia is their eighty-two-year-old

mother.

On September 12, 2020, Arnold and Marcia, who lived together,

purchased an English bulldog from a dog breeder. Arnold provided a $500 down

payment, and Marcia supplied the remaining $3,200 to purchase the dog, which

they named Kano. According to Arnold, Marcia gifted him the money to

purchase Kano. Arnold became Kano's primary caretaker as of September 2020.

On November 8, 2020, Marcia executed a document granting her

daughter, Bennett, a power of attorney. The power of attorney authorized

Bennett to manage Marcia's personal property, act on Marcia's behalf in all legal

matters, and perform all acts necessary to care for Marcia's pets.2

1 Because Marcia Richmond and Arnold Kenneth Richmond II share the same last name, we refer to them by their first names. No disrespect is intended. 2 Under this power of attorney, the judge recognized Bennett as a plaintiff in the replevin action. A-0773-22 2 On October 25, 2021, Arnold began serving a six-month jail sentence.

Arnold arranged for his thirty-one-year-old son to care for Marcia and Kano

until Arnold's release from jail.

In January 2022, Bennett noticed Marcia and Kano were "not being taken

care of properly." As a result, Bennett took Marcia to live with her. Bennett

looked for someone to "foster" Kano until Arnold's release from jail.

On February 16, 2022, Bennett and Martianou 3 executed a written

contract, drafted by Martianou, providing Martianou would care for Kano until

April 23 or 30, 2022, in exchange for $500 per month, plus expenses. At the

hearing, Bennett and Martianou testified the contract provided Martianou would

care for Kano until the end of April 2022, when it was anticipated Arnold would

return home.

On February 18, 2022, Bennett delivered Kano to Martianou. Martianou

claimed Kano was dirty, underweight, and showed other signs of improper care

when he arrived at her home. As a result of his condition, Martianou took Kano

to the veterinarian.

Marcia expressed a desire to visit Kano. On March 26, 2022, Martianou

arranged for Kano to visit with Marcia, Bennett, and Bennett's husband at a local

3 Bennett and Martianou were co-workers. A-0773-22 3 park. Martianou's boyfriend accompanied Martianou to the park for the visit.

According to Martianou and her boyfriend, when the visit ended, Marcia

accompanied Martianou to her car. Martianou testified neither Bennett nor

Bennett's husband were present when Marcia walked to Martianou's car.

Martianou claimed Marcia stated she could keep Kano, and the two women

hugged and cried.

According to Bennett's husband, Marcia never was out of his earshot. He

further testified the two women did not hug. He also stated there was nothing

about the visit "that led [him] to believe Kano was being given to [Martianou]."

That same evening, Bennett sent a text to Martianou thanking her for

arranging the visit between Marcia and Kano. Martianou replied:

Aww, you're welcome! It was so nice seeing you and your husband again, and your mother is lovely. Such a pleasure meeting her. Please tell her thank you again for the beautiful candle and I'm sorry we didn’t get to talk more. I've never seen him act like that, [sic] he usually listens to me. He loves the ice cream cone, thank you!

Nothing in Martianou's response asserted Marcia had gifted Kano to her.

On April 22, 2022, Arnold was released from jail. On April 24, 2022,

Bennett sent text messages to Martianou to "make arrangements to come and get

Kano" and asking Martianou to allow Kano "to stay a few more days" until

A-0773-22 4 Arnold was "ready to get[ ] Kano back." Martianou did not reply to Bennett's

text messages.

On April 29, 2022, Bennett sent Martianou another text message, advising

Arnold would "come and get [Kano] tomorrow" and requesting a specific time

to retrieve the dog. Later that day, Martianou replied "Kano is mine," and told

Bennett "[d]o what you feel you need to."

On August 8, 2022, plaintiffs filed a replevin action and order to show

cause seeking the immediate return of Kano. Martianou filed an answer,

counterclaim, and affidavit in response to the order to show cause. On August

25 and September 16, 2022, the judge conducted a hearing on plaintiffs' replevin

action.

At the hearing, Arnold identified himself as Kano's owner and Marcia as

Kano's "co-owner." Bennett similarly testified Arnold and Marcia jointly owned

Kano. Arnold and Bennett did not call Marcia as a witness.

During the hearing, plaintiffs introduced three exhibits: a July 7, 2020

Venmo receipt evidencing a $500 down payment to the dog breeder for a bulldog

puppy; a September 12, 2020 receipt memorializing Arnold's purchase of a

bulldog puppy; and registration papers identifying a "chocolate/white olde

english bulldogge" born July 10, 2020. Despite Martianou objecting to the July

A-0773-22 5 7, 2020 receipt as inadmissible hearsay, the judge admitted the document as

evidence. The judge admitted the other two documents proffered by plaintiffs

because Martianou did not object.

On September 16, 2022, the judge placed her findings of fact and

conclusions of law on the record. The judge found Arnold and Marcia purchased

Kano on September 12, 2020. She further determined Kano "was essentially a

family dog titled in the name of Arnold." The judge found Martianou cared for

Kano under a written foster agreement until Arnold's release from prison around

April 23 or April 30, 2022.

While the judge found the parties' visit with Kano at a park on March 26,

2022 was undisputed, she noted the following:

What is disputed is whether Marcia told [Martianou] that she could keep the dog . . . [.] [T]he party that wants to prove a gift bears the burden to prove that gift. . . . That proof . . . should be by clear . . . , cogent, and persuasive proofs. . . . Here, the proofs are . . . in equipoise, or they're equal[,] [a]nd so [Martianou] has not proven . . . that Marcia gave [Kano as] a gift to her.

Because Martianou failed to establish the elements necessary to prove a valid

and irrevocable gift or that Maria had the legal right to gift Kano, the judge

concluded "plaintiff[s] . . . have the right to [possess] the dog."

A-0773-22 6 On October 5, 2022, the judge entered an order awarding possession of

Kano to plaintiffs.4 The order provided a writ of replevin would issue in the

event Martianou failed to return Kano by October 12.

On October 11, Martianou moved for a stay pending appeal. On October

24, plaintiffs cross-moved for a writ of replevin. On November 17, the judge

denied stay relief and issued a writ of replevin for Kano's immediate return to

plaintiffs.

On appeal, Martianou raises several arguments. First, she claims the judge

failed to determine whether any of the plaintiffs had a right to possession of

Kano superior to her possessory right to Kano. Moreover, Martianou argues an

adverse inference was warranted because plaintiffs failed to present testimony

from Marcia. She also asserts the judge erred in admitting hearsay evidence

related to the purchasing and gifting of Kano. We reject these arguments.

We apply a deferential standard in reviewing a judge's factual findings.

Balducci v. Cige, 240 N.J. 574, 594-95 (2020). We "give deference to the trial

court that heard the witnesses, sifted the competing evidence, and made

reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254

4 For reasons that are unclear in the record, a different judge entered the October 5, 2022 order. A-0773-22 7 (2015). We will decline to "'disturb the factual findings and legal conclusions

of the trial judge' unless convinced that those findings and conclusions were 'so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting

Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

"A person seeking recovery of goods wrongly held by another may bring

an action for replevin in the Superior Court." N.J.S.A. 2B:50-1. Pets are a form

of personal property and, therefore, may properly be the subject of a replevin

action. See Houseman v. Dare, 405 N.J. Super. 538, 544-46 (App. Div. 2009).

A party may obtain a court order for possession in a replevin action under

N.J.S.A. 2B:50-1 to -5 and Rules 4:61-1 to -5. To prevail in a replevin action,

the party seeking the goods bears the burden of demonstrating ownership of the

property and the right to exclusive possession. Kleinfeld v. General Auto Sales

Co., 118 N.J.L. 67, 71 (E. & A. 1937).

We first consider Martianou's argument that the judge erred in granting

possession of Kano to plaintiffs. Martianou contends Arnold and Marcia failed

to present sufficient evidence for the judge to find plaintiffs owned Kano.

Having reviewed the record, we are satisfied the judge properly awarded

possession of Kano to plaintiffs. Arnold testified without contradiction that he

A-0773-22 8 purchased Kano and cared for the dog for more than a year. See Pippin v. Fink,

350 N.J. Super. 270, 273-74 (App. Div. 2002) (considering the person who

purchased and cared for a dog when determining the dog's owner). Arnold

provided unrebutted testimony that Marcia contributed additional funds for him

to purchase Kano and, therefore, Marcia co-owned the dog with Arnold. Bennett

substantiated Arnold's testimony in this regard. Thus, there was sufficient

credible evidence in the record, unrefuted by Martianou, supporting the judge's

finding that Kano was the family dog and plaintiffs demonstrated they possessed

the lawful right to the dog.

We next consider Martianou's argument the judge's admission of the three

documents at the hearing constituted reversible error. She argues these

documents were not authenticated and were inadmissible hearsay.

We review a judge's evidentiary ruling for abuse of discretion. Rowe v.

Bell & Gossett Co., 239 N.J. 531, 551 (2019). A trial court abuses its discretion

when "a decision is 'made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" U.S. Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002)).

A-0773-22 9 Because Martianou objected to the July 7, 2020 receipt, we review its

admission for harmless error. Under that standard, we may reverse if we find "a

reasonable doubt as to whether [the error] led the [court] to a verdict it otherwise

might not have reached." Willner v. Vertical Reality, Inc., 235 N.J. 65, 79

(2018) (first alteration in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).

However, Martianou did not object to the September 12, 2020 receipt and

registration papers and, thus, we review the admission of those documents for

plain error. R. 2:10-2. Under this standard, we will reverse a trial court's

decision only if an error was "clearly capable of producing an unjust result."

Campo v. Tama, 133 N.J. 123, 132 (1993).

The three documents were inadmissible hearsay. However, the admission

of the documents neither led to a verdict the judge may not have otherwise

reached nor were "clearly capable of producing an unjust result."

Here, Arnold proffered undisputed testimony regarding his purchase of

Kano using his own funds and money gifted to him by Marcia. Accordingly,

the admission of the July 7, 2020 receipt was harmless error and the admission

of Kano's registration papers and September 12, 2020 receipt was not "clearly

capable of producing an unjust result." Because this was a non-jury proceeding,

we are satisfied the judge accorded the proper weight to Arnold's unrefuted

A-0773-22 10 testimony regarding ownership of Kano and did not rely solely on the three

documents erroneously admitted during the hearing.

We next address Martianou's argument the judge erred in declining to find

she had an ownership interest in Kano because Marcia gifted the dog to her on

March 26, 2022. Martianou asserts the judge failed to make findings of fact and

conclusions of law regarding her "ownership interest" in Kano. We disagree.

"To demonstrate a valid and irrevocable gift, a donee must establish four

elements": (1) the donor actually or symbolically delivers the gift; (2) the donor

intends to give the gift; (3) the donee accepts the gift; and (4) the donor

relinquishes ownership and control of the gift. Sipko v. Koger, Inc., 214 N.J.

364, 376 (2013). The donee must prove these elements by "clear, cogent and

persuasive" evidence. Ibid. (quoting Farris v. Farris Eng'g Corp., 7 N.J. 487,

501 (1951)).

Martianou and Bennett's husband provided conflicting testimony

regarding the events that occurred at the park on March 26, 2022. The judge

made credibility determinations, to which we must defer, and found the

testimony of Martianou and Bennett's husband was in equipoise. Because the

judge concluded the evidence regarding the purported gifting of Kano to

Martianou was equal, the judge found Martianou failed to satisfy her burden of

A-0773-22 11 proving ownership of Kano with "clear, cogent and persuasive proofs."

Additionally, the judge was "persuaded" Martianou had no ownership interest

in Kano based on her failure to mention Marcia gifting the dog to her in any text

messages. Moreover, the judge determined it was unclear that Marcia had the

legal authority to gift Kano because Arnold held title to the dog. With these

fact-findings, we discern no basis to disturb the judge's conclusion that

Martianou failed to prove any ownership interest in Kano.

We next address Martianou's claim that Marcia's failure to testify

warranted an adverse inference that Marcia gifted Kano to her. Martianou never

raised this issue during the hearing despite having ample opportunity to do so.

Thus, we review the argument for plain error.

We review a judge's decision regarding the request for an adverse

inference for abuse of discretion. See Bldg. Materials Corp. of Am. v. Allstate

Ins. Co., 424 N.J. Super. 448, 472 (App. Div. 2012). "An adverse inference

charge may be appropriate if 'a party fails to call a witness' whose testimony

'would have been superior' to that presented and who 'was within the power of

the party to produce.'" ASHI-GTO Assocs. v. Irvington Pediatrics, P.A., 414

N.J. Super. 351, 361 (App. Div. 2010) (quoting Witter by Witter v. Leo, 269

N.J. Super. 380, 391-92 (App. Div. 1994)).

A-0773-22 12 However, an adverse inference "is not invariably available whenever a

party does not call a witness who has knowledge of relevant facts." State v. Hill,

199 N.J. 545, 561 (2009). Instead, the party seeking an adverse inference must

show:

(1) that the uncalled witness is peculiarly within the control or power of [the adverse] party, or that there is a special relationship between [that] party and the witness[,] or [that] party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[Torres v. Pabon, 225 N.J. 167, 182 (2016) (quoting Hill, 199 N.J. at 561-62).]

If the requesting party "could have secured [the witness's] trial testimony by

service of a notice in lieu of subpoena on his counsel, pursuant to Rule 1:9-1,

by court order, or by consent," the first factor is not satisfied. Id. at 183.

Here, Marcia could have been subpoenaed and Martianou could have

secured Marcia's testimony by serving a notice in lieu of subpoena upon Marcia's

attorney. Thus, Martianou would have been unable to meet her burden for an

adverse inference even if she made such a request during the hearing.

A-0773-22 13 Additionally, the decision to draw an adverse inference is left to the

discretion of the trial judge. State, Dep't of Law & Pub. Safety, Div. of Gaming

Enf't v. Merlino, 216 N.J. Super, 579, 587 (App. Div. 1987). Here, the judge

heard testimony from several witnesses related to Kano's ownership. Thus, we

are satisfied the judge did not abuse her discretion in declining to draw an

adverse inference because Marcia was not called to testify during the plenary

hearing.

To the extent we have not addressed any of Martianou's remaining

arguments, those arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0773-22 14