Maria Melekos v. Wanda Cote

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0053, Maria Melekos v. Wanda Cote, the
court on October 16, 2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Wanda Cote, appeals a small claim judgment
in the amount of $6,000 plus interest and costs issued by the Circuit Court
(Weaver, J.), following a bench trial, in favor of the plaintiff, Maria Melekos, on
her claim for breach of contract. We construe her brief to argue that the trial
court erred by awarding damages in an amount that is, she asserts, excessive
and inconsistent with the terms of the parties’ contract, and by determining
that the parties agreed to modify the contract. We affirm.

The trial court found, and the defendant does not dispute on appeal, that
on April 2, 2020, the parties entered into a contract for the sale of a
labradoodle puppy for $1,100. The contract’s express terms “guarantee[d] the
puppy to be in good health at the time of sale,” and not to have any
“transmissible diseases, such as parvovirus.” Notwithstanding these
guarantees, the contract also stated that the seller “is NOT RESPONSIBLE for
any or part of any vet bills,” that “[o]nly puppy replacements will be made,” and
that “[t]here will not be any cash refunds.”

Shortly thereafter, the defendant posted a notice on the internet stating
that “[i]n the recent past, we discovered that a puppy from our home was
diagnosed with the Parvo Virus,” that “[w]e have contacted each and every
individual who bought a puppy from us since April 1, 2020 to make them
aware of the possibility that their puppy may have been exposed to the Parvo
Virus,” and that “[w]e fully refunded the new owner who alerted us to the
infection, and reimbursed them for their costs.” The posting further stated that
“[w]e intend to do the same for any new owner who wishes to return their
puppy if it tests positive for Parvo, and/or cover reasonable costs associated
with its treatment, including testing, medication, and hospitalization for
Parvo.” The plaintiff’s dog in fact became ill on April 6, 2020. On April 7, the
defendant sent the plaintiff a text message alerting her that other puppies from
the same litter had tested positive for parvovirus and urging her to have her
dog tested; later that day, the plaintiff’s dog tested positive for parvovirus.

The parties then engaged in what the plaintiff described as “a ridiculous
amount of text messages” spanning numerous pages of an exhibit that the
plaintiff introduced at trial discussing the matter. According to the plaintiff’s
testimony, the defendant “acknowledged responsibility [in the texts] . . . and
said that she would do whatever [was] needed to make it right,” including
reimbursing the plaintiff for veterinary fees. The record on appeal, however,
contains only a single page of a brief text message exchange. In that text
exchange, expressly relied upon by the trial court in its order, the plaintiff
notified the defendant that her dog was hospitalized, that she was “looking at
almost $4,000 already” in addition to what she had paid for the dog, and that
that amount was “more than [her] entire savings account.” The defendant
responded by stating that she was “taking responsibility for now,” and
requesting copies of the plaintiff’s bills. According to the trial court, the
defendant also sent the plaintiff a text “asking for bills actually paid, and not
the amount of any deposits paid since the deposits could be refunded.”

At trial, the plaintiff argued that the parties’ communications, including
the defendant’s offer to “cover reasonable costs associated with [the] treatment”
of parvovirus for anyone who had purchased a dog from her infected with the
virus after April 1, “including testing, medication and hospitalization for Parvo,”
resulted in a modification of the parties’ contract. It was in reliance upon this
promise, according to the plaintiff, that she sought treatment for the dog,
including hospitalization, incurring costs of approximately $9,000. She sought
the full amount of the costs that she had incurred to treat the dog. Although
the defendant disputed that she agreed to modify the contract, she admitted
that she offered to pay reasonable costs for the testing, treatment, medication,
and hospitalization of dogs she sold after April 1 that were infected with
parvovirus.

The trial court found that the defendant “affirmed on several occasions
that she was paying for the costs of treatment for the dog,” and that she
“agreed to pay the reasonable costs [for the dog’s] testing, treatment and
hospitalization.” However, “as the costs started to rise,” the trial court found
that the defendant “began to express concern about whether the costs were
reasonable.” According to the trial court, the defendant ultimately claimed
that, notwithstanding the provisions of the contract stating that “[o]nly puppy
replacements will be made” and “there will not be any cash refunds,” under the
contract “she was only responsible for the $1100 purchase price.”

In ruling in favor of the plaintiff, the trial court observed that the
contract contained an express “guarantee against parvovirus,” that the
defendant “further defined [the guarantee] . . . to provide for the payment of the
reasonable costs of all tests, treatment and hospitalization,” through her
website posting, and that the parties’ text messages established “that the
defendant interpreted that to mean costs up to at least $4,000.00 since [the
defendant] responded to the plaintiff’s text about billings in that amount by
admitting she was taking responsibility ‘for now.’” Within the context of the
evidence and arguments presented at trial, we construe the trial court’s order
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as determining that the parties had modified the April 2, 2020 contract to
provide for the reimbursement of reasonable veterinary costs incurred by the
plaintiff in treating her dog for parvovirus. See In the Matter of Salesky &
Salesky, 157 N.H. 698, 702-03 (2008) (stating that the interpretation of a trial
court order is a question of law subject to de novo review, to be construed in
reference to the issues it was intended to decide). The trial court ultimately
determined that, based upon information in the text messages regarding the
costs that other dog owners who had purchased dogs from the plaintiff had
incurred, $9,000 was “at the very top of the range of costs incurred and . . .
well beyond anything the defendant believed would be incurred when the
contract was made between the parties,” but that “$6,000.00 [was] reasonable
reimbursement for the costs claimed by the plaintiff.” This appeal followed.

It is well established that parties to a contract may modify its terms by
either an express or implied mutual agreement to that effect, so long as the
parties mutually assent to the terms of the modification. See RSA 382-A:2-209
(2011) (amended 2022) (allowing modification and waiver of terms of a contract
for the sale of goods); see also Walker v. Percy, 142 N.H. 345, 349 (1997);
Guaraldi v. Trans-Lease Group, 136 N.H. 457, 460-61 (1992). Such an
agreement to modify may generally be inferred from the parties’ conduct.
Guaraldi, 136 N.H. at 461. Whether a contract has been modified is a question
of fact, and we will not disturb the trial court’s findings unless they are
unsupported by the evidence or tainted by error of law. Walker, 142 N.H. at
349; Guaraldi, 136 N.H. at 461. Our role is not to determine whether we would
have found differently, but whether a reasonable person could have found as
the trial court did based on the same evidence. Guaraldi, 136 N.H. at 461. We
defer to the trial court’s assessment of the credibility of the witnesses and the
weight of the evidence presented. See id.; Maville v. Peerless Ins. Co., 141 N.H.
317, 320 (1996).

It is the burden of the appealing party, here the defendant, to provide so
much of the record as is required to decide the issues raised. See Bean v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). We assume that relevant portions
of the record not provided on appeal, including trial exhibits, support the result
reached by the trial court. See id.; see also In the Matter of Rokowski &
Rokowski, 168 N.H. 57, 62 (2015) (applying Bean to appealing party’s failure to
provide exhibits admitted into evidence at evidentiary hearing).

In this case, the portions of the record provided on appeal support the
trial court’s findings that the parties modified their contract to obligate the
defendant to reimburse the plaintiff for reasonable veterinary costs incurred in
treating the dog for parvovirus, and that $6,000 was a reasonable amount for
the costs the plaintiff incurred. Moreover, we must assume that those portions
of the trial exhibits that the plaintiff has not provided on appeal support these
findings. See Rokowski, 168 N.H. at 62. Accordingly, we conclude that the
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trial court’s decision was neither unsupported by the evidence nor tainted by
error of law. Guaraldi, 136 N.H. at 461. Any remaining arguments in the
defendant’s brief are not sufficiently developed to warrant further discussion.
See State v. Blackmer, 149 N.H. 47, 49 (2003) (stating that we confine our
review on appeal to those issues that are fully briefed).

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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