NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2415-07T22415-07T2

DOREEN HOUSEMAN,

Plaintiff-Appellant,

v.

ERIC DARE,

Defendant-Respondent.

___________________________________

Submitted December 16, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Gloucester County, Docket No. FM-08-667-07.

Gina A. Calogero, attorney for appellant.

Law Offices of Hoffman DiMuzio, attorneys

for respondent (James M. Carter, of

counsel and on the brief).

Sara J. Corcoran, attorney for amicus curiae Animal Legal Defense Fund.

Isabelle R. Strauss, attorney for amicus curiae Lawyers in Defense of Animals.

The opinion of the court was delivered by

GRALL, J.A.D.

Plaintiff Doreen Houseman appeals from a judgment of the Family Part awarding her $1500 for a dog she and defendant Eric Dare jointly owned when they separated and ended their engagement to be married. Alleging that she and Dare had an oral agreement giving her possession of the dog that Dare breached by wrongfully retaining the dog after a post-separation visit, Houseman sought specific performance of the agreement and a judgment declaring her ownership of the animal. Prior to trial, the court determined that pets are personal property that lack the unique value essential to an award of specific performance. On appeal Houseman claims that the pretrial ruling was erroneous as a matter of law. We agree and remand for further proceedings.

The following facts are not in dispute. Houseman and Dare had a relationship for thirteen years. In 1999 they purchased a residence, which they owned as joint tenants and made their home. In 2000 they engaged to marry, and in 2003 they purchased a pedigree dog for $1500, which they registered with the American Kennel Club reporting that they both owned the dog. In May 2006 Dare decided to end his relationship with Houseman. At that time, Dare wanted to stay in the house and purchase Houseman's interest in the property. In June 2006, Houseman signed a deed transferring her interest in the house to Dare. When she vacated the residence on July 4, 2006, Houseman took the dog and its paraphernalia with her. She left one of the dog's jerseys and some photographs behind as mementos for Dare.

The trial court limited presentation of evidence about the parties' dog in accordance with its pretrial ruling foreclosing Houseman's claim for specific performance and the parties' stipulation that $1500 was the intrinsic value of the dog. Nonetheless, the record includes the following information relevant to Houseman's claim that she and Dare had an oral agreement about the dog that Dare breached after they separated.

According to Houseman, "from the minute [Dare] told [her they] were breaking up, he told [her she] could have" the dog. She and Dare agreed that she would get the dog and one-half the value of the house. Although she admitted that she would not have wanted more than one-half the value of their house if she were not taking the dog, she asserted that her primary concern during her negotiations with Dare was possession of their dog and that she accepted his representations that her share of the equity was $45,000.

Dare acknowledged that Houseman raised the question of who would get the dog after he broke their engagement. Although he did not expressly deny that he agreed to give Houseman the dog, he testified that her agreement to accept $45,000 for the house was not dependent upon her receipt of anything other than the money.

Dare and Houseman did not have a written agreement about the dog, but after Houseman left the residence she allowed him to take the dog for visits after which he returned the pet to her. According to Houseman, when she asked Dare to memorialize their agreement about the dog in a writing, he told her she could trust him and he would not keep the dog from her. Although Dare admitted to making that promise in his answer to Houseman's complaint, he offered no testimony on that point at trial.

In late February 2007, Houseman left the dog with Dare when she went on vacation. On March 4, 2007, she asked Dare for the dog, but the pet was not returned. Houseman filed the complaint that initiated this litigation on March 16, 2007, and when trial commenced in December 2007 Dare still had the dog.

Prior to trial, the parties stipulated that Dare sold the residence in December 2006 and received equity in an amount that exceeded $90,000.

At the conclusion of trial, the court found Houseman's testimony to be "extremely" and "particularly credible." The court noted that Houseman testified "without guile," "was truthful" and answered even the "hard questions . . . in a way that would not have been advantageous to her." On those grounds, the court accepted her testimony. In contrast, the court concluded that Dare took unfair advantage of Houseman by giving her only $45,000 for her interest in their residence. The court made the following findings relevant to the dog:

I'm more than satisfied, hearing Ms. Houseman testify, that the dog was in no way related to the sale of the house. They may have an understanding about the dog. She thought she was getting the dog. He picked the dog up later. He has the dog. We know what the value of the dog is. The dog is worth $1500. I believe it's now in Mr. Dare's possession. He'll pay Ms. Houseman $1500 [the full value stipulated by the parties] for the dog.

The foregoing passage suggests, although not with unmistakable clarity, that the court found that Houseman established an oral agreement under which she was to obtain possession and ownership of the dog. Despite that finding and solely on the ground that Dare had possession of the dog at that time, the court awarded Dare possession and Houseman the dog's stipulated value.

The court's conclusion that specific performance is not, as a matter of law, available to remedy a breach of an oral agreement about possession of a dog reached by its joint owners is not sustainable. The remedy of specific performance can be invoked to address a breach of an enforceable agreement when money damages are not adequate to protect the expectation interest of the injured party and an order requiring performance of the contract will not result in inequity to the offending party, reward the recipient for unfair dealing or conflict with public policy. See Stehr v. Sawyer, 40 N.J. 352, 357 (1963); Fleischer v. James Drug Stores, 1 N.J. 138, 146 (1948); Marioni v. 94 Broadway, Inc., 374 N.J. Super. 588, 599 (App. Div.), certif. denied, 185 N.J. 591 (2005); D'Elissa v. D'Amato, 85 N.J. Eq. 466, 467 (Ch. 1916); Restatement (Second) of Contracts