IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
EDMUNDS V. STEVENS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
PATRICK EDMUNDS, APPELLEE,
V.
CAROL STEVENS, APPELLANT.
Filed April 4, 2017. No. A-16-129.
Appeal from the District Court for Cedar County, PAUL J. VAUGHAN, Judge, on appeal
thereto from the County Court for Cedar County, DOUGLAS L. LUEBE, Judge. Judgment of District
Court affirmed.
David W. Watermeier and McKynze Works, Senior Certified Law Student, of Morrow,
Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellant.
Julie Fowler and Brendan M. Kelly, of Fowler & Kelly Law, L.L.P., for appellee.
MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Carol Stevens appeals from the district court’s order affirming the decision of the County
Court of Cedar County, Nebraska, awarding damages to Patrick Edmunds. We find no merit to the
arguments raised on appeal and affirm.
BACKGROUND
Edmunds purchased a female German Shepherd puppy named Bree VIII (Bree) from
Stevens pursuant to a sales agreement dated March 19, 2013. Stevens maintained a website on
which she advertised the dogs she had for sale. Her website stated that “[i]nvesting in high quality
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genetics pays you back many times over. Investing in low quality genetics costs you many times
over.” The website also referenced attendance at Canine Breeder Excellence Seminars conducted
by UC Davis, which had a reputation of providing “cutting edge information.” Edmunds testified
that he had purchased Bree as an investment based on Stevens’ advertisements promising a
high-quality dog and that his intent was to breed and show her.
The sales agreement between Edmunds and Stevens contained a provision providing a
warranty for Bree’s elbows and hips until she was one year old. This provision was to expire on
December 30, 2013. Under this provision, a certified orthopedic veterinarian must provide a
written diagnosis as well as x-rays clearly identifying crippling dysplasia. The agreement also
required Edmunds to have radiographs taken of Bree and submitted to the Orthopedic Foundation
for Animals (“OFA”) to be rated.
Edmunds had two radiographs taken around the time that Bree turned two and submitted
them to the OFA. As a result of the radiographs, Bree was diagnosed with an ununited anconeal
process of the left elbow, also known as UAP or elbow dysplasia. This occurs when a small bone
in a dog’s elbow, the anconeal process, does not fuse with the ulna. UAP can cause instability in a
dog’s elbow joint and can lead to arthritis and degenerative joint disease. A diagnosis of UAP can
lead to lameness. UAP has a genetic component and the breeding of affected animals is not
recommended.
Edmunds filed a claim against Stevens in small claims court in Cedar County, seeking
damages and reimbursement for the veterinarian fees and expenses generated in diagnosing Bree
with UAP. The county court held trial, at which both parties testified and submitted a number of
exhibits. The county court found that the provision in the sales agreement provided for a lesser
amount of time in which the purchaser could discover serious health problems than is statutorily
required by Neb. Rev. Stat. § 54-647(1) (Reissue 2010), thereby rendering such provision void.
The court ruled in favor of Edmunds, awarding him $2,665.00 in damages and assessing court
costs to Stevens.
Stevens subsequently filed a notice of appeal with the district court. The district court
affirmed the county court’s judgment in favor of Edmunds. Stevens now appeals to this court.
ASSIGNMENTS OF ERROR
Stevens assigns, restated, that the county court erred in (1) concluding that Bree’s condition
was genetic, and (2) not considering all relevant evidence in determining whether the one year
warranty allowed sufficient time to discover the defects which it covered.
STANDARD OF REVIEW
The district court and higher appellate courts generally review judgments from a small
claims court for error appearing on the record. Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812
(2014); Flodman v. Robinson, 22 Neb. App. 943, 864 N.W.2d 716 (2015).
When reviewing a judgment for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evidence, and is not arbitrary, capricious,
nor unreasonable. First Nat. Bank of Unadilla v. Betts, 275 Neb. 665, 748 N.W.2d 76 (2008).
However, questions of law are nonetheless reviewed de novo on the record. Id.
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ANALYSIS
Genetic Condition.
Stevens first argues that the evidence presented to the county court did not prove that Bree’s
condition was genetic. She claims that Edmunds’ admission that he did not have a DNA test
performed along with evidence suggesting environmental causes proved that the cause was not
genetic. We disagree.
Edmunds presented the court with a letter from Bree’s veterinarian diagnosing her with
UAP. This letter stated that the diagnosis was based upon the veterinarian’s experience as well as
her own evaluation and that of the OFA. The veterinarian specifically identified the UAP as “a
genetic disorder affecting the union of the anconeal process to the proximal end of the ulna.” She
went on to state that “[b]reeding of affected animals is not recommended due to the genetic
component of the problem.” Edmunds testified that the veterinarian told him that she had
concluded that Bree’s condition had been caused by genetics. Edmunds also presented the court
with reports from the OFA finding that both radiographs showed that Bree displayed UAP in her
left elbow. Edmunds testified that he did not have a DNA test performed to confirm that the
condition was genetic because he relied on the veterinarian’s experience with this condition in
forming the opinion that it was specifically caused by genetics.
Stevens testified that other environmental factors, such as diet, could have caused UAP.
Specifically, she claimed that Edmunds did not follow the recommendation in the sales agreement
as to the type of food to use, and a lower-quality food “could as well have contributed to this
condition.” She further testified that Bree “could have sustained trauma” in a training program in
which Edmunds had her enrolled. Finally, Stevens offered into evidence a printout of information
obtained from “VCA Hospitals” which contains the following statements:
[UAP] does appear to be hereditary in certain breeds, mostly large breeds . . . . German
Shepherds seem to be particularly affected by the problem, although it does occur in other
breeds, and males are more commonly affected. There may be dietary factors involved in
the development of this condition since there is a correlation between diets that contain too
much energy and calcium and the development of elbow dysplasia.
Other than Edmunds’ admission that he enrolled Bree in a training program, there was no evidence
of Bree’s activity or the amount of calcium contained in her diet.
While the parties presented opposing evidence and testimony on the issue of causation, the
county court ultimately found Edmunds’ evidence to be more credible and thus found that the
condition was genetic. An appellate court does not reweigh the evidence, but considers the
judgment in the light most favorable to the successful party and resolves evidentiary conflicts in
favor of that party. Henrikson v. Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002). Based on the
record before us, we conclude that the county court’s finding of genetic causation is supported by
the evidence.
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Failure to Consider All Relevant Evidence
Regarding Sufficiency of 1-Year Warranty.
Stevens next argues that even if Bree’s condition was genetic, Edmunds could have
discovered it during the 1-year warranty period pursuant to the sales agreement. She claims that
even though the OFA will not grade a dog’s hips or elbows prior to two years’ of age, it will
indicate any issues that are evident. Furthermore, Stevens claims that the sales agreement did not
require the OFA to diagnose a condition; rather, it simply required that Edmunds submit
radiographs to the OFA to be rated. Stevens asserts the evidence is clear that the growth plate
between the anconeal process and the ulna should be fused by five months’ age, at which point it
can be detected. She claims that Edmunds could have obtained radiographs and a diagnosis from
a certified orthopedic vet any time after the age of five months but prior to the expiration of the
warranty.
The county court determined that the one year warranty clause was unenforceable under
the Dog and Cat Purchase Protection Act, Neb. Rev. Stat. § 54-644 et. seq. (Reissue 2010).
Neb. Rev. Stat. § 54-650 (Reissue 2010) states:
Nothing in the Dog and Cat Purchase Protection Act shall limit any rights and remedies
otherwise available under the laws of this state. Any agreement or contract entered into by
a seller and a purchaser waiving any rights under the act is void. Nothing in the Dog and
Cat Purchase Protection Act shall be construed to limit a seller to offering only those
warranties, express or implied, required by the act.
(Emphasis added.)
Neb. Rev. Stat. § 54-647 (Reissue 2010) provides for certain remedies under the Act if
within 15 months after the pet’s birth a veterinarian diagnoses it with a serious health problem that
the veterinarian believes existed at the time the owner took possession of the pet. Because the sales
agreement between Edmunds and Stevens precluded any remedy after one year, the court
determined the contract was in violation of § 54-644 and therefore void. Stevens does not appeal
that decision; rather, she argues that because Edmunds could have discovered Bree’s condition
within the one year warranty period, the length of the warranty was sufficient. We disagree.
Having determined that the sales agreement was void, the county court proceeded to
analyze the contract under the Nebraska Uniform Commercial Code (Neb. U.C.C.). It determined
that the sale of Bree constituted a sale of goods governed by the U.C.C. and that the U.C.C. requires
the parties to operate in good faith in transactions such as the present one. See Neb. U.C.C. § 2-207
(Reissue 2001). It concluded that Stevens “restricted the warranty to a time less than the accepted
age of 24 months after which such genetic defects that the warranty was to cover, could be
discovered.” Therefore, the court determined that Stevens did not act in good faith and that
Edmunds was entitled to judgment in his favor.
We agree with the county court that the sales agreement is void because it attempts to
restrict Edmund’s ability to recover after one year instead of the statutory 15 months. Because
§ 54-650 preserves a buyer’s rights and remedies otherwise available under the laws of this state,
it was proper for the court to analyze Edmund’s remedies under the U.C.C. Pursuant to the U.C.C.,
Bree falls within the definition of goods and a sale of such goods operates as a contract for sale.
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See U.C.C. §§ 2-105(1) (Reissue 2001) and 2-106 (Reissue 2001). The issue then becomes whether
Stevens acted in good faith when limiting the recovery time period to 15 months. The county court
found that she did not because the evidence supported a determination that the accepted practice
in the industry was that discovery of UAP did not occur until the dog reached the age of 24 months.
Stevens takes issue with the court’s factual finding that the UAP could not be discovered
within one year. But the county court was presented with conflicting evidence regarding when the
condition could be discovered. A letter from Bree’s veterinarian stated that UAP is diagnosed
when the anconeal process and the ulna do not knit together by the age of two years. Similarly, the
instructions for taking images for an OFA dysplasia evaluation stated that only animals who are
two years of age or older at the time of radiography and whose radiographs show no signs of
dysplasia will be assigned an OFA number. On the other hand, Stevens presented the court with
an Internet printout from the “VCA Animal Hospitals” that stated the growth plate between the
anconeal process and the ulna typically fuses by five months of age. The county court resolved the
issue in favor of Edmunds determining that the UAP cannot be diagnosed before two years of age.
Given our standard of review, we will not reweigh the evidence. See Henrikson v. Gleason, 263
Neb. 840, 643 N.W.2d 652 (2002). Because there is sufficient competent evidence in the record to
support the county court’s finding, we affirm its decision.
We also note that while the explicit wording of the warranty in the sales agreement does
not state that the OFA must diagnose a condition, it does require radiographs to be submitted for
the purpose of being rated. The county court found that only animals two years of age or older at
the time radiographs are taken and with no radiographic evidence of dysplasia will be given an
OFA number pursuant to an evaluation. We find that it was reasonable for the county court to infer
that the purpose of submitting radiographs to the OFA to be rated is to be assigned an OFA number,
and that this cannot take place prior to two years of age. Accordingly, we find no merit to Stevens’
argument.
CONCLUSION
We conclude that there was sufficient relevant evidence to support the district court’s
decision to affirm the county court’s judgment. We therefore affirm.
AFFIRMED.
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