Legal Recourse for Misrepresentation

[twodogs]

We live in the state of Illinois. We recently utilized a puppy finder website to purchase a purebred Bichon puppy. The puppy was represented to be 13 weeks old (at the time of delivery) and AKC registerable. There were pictures of the puppy posted on the website, and the breeder assured me that the pictures were of the puppy I would be receiving.

We met the breeder in KY on a Saturday on our way to vacation, and she delivered the puppy to us there (she is from TN). At the time, she told us the puppy had become carsick and she handed over medicine she had gotten from her vet for the carsickness.

At the time of delivery, we had some doubts about the puppy, but she already had some of our money, so we paid her the rest and took the puppy. She gave us the AKC papers to register the dog.

During the coming days, the puppy became sicker and sicker, with bloody diahrrea. As it was a holiday weekend and we were on vacation, we could not get the puppy to the vet until Tuesday. The vet stated that the medicine we were handed was not for carsickness, but for a very specific parasite, contageous to other dogs and humans (we have two other dogs), and upon further testing, he found not only that parasite but another parasite. He also stated that the dog could be no more than 9 weeks old. This just happens to be the age of another litter of puppies that this breeder had identified that she had.

We have contacted the breeder with this information and she refuses to admit that she has given us the wrong dog. We have provided her with side-by-side pictures of the dog we have and the pictures she posted on the website that clearly show it is not the same dog, but she said "puppies change as they get older."

We now have an unregisterable puppy, as the AKC papers are for a dog born on 6/3/05, and this puppy could not have been born before 7/1/05.

We requested our full money back, plus the vet bill plus the cost of traveling to pick up the puppy, and asked her to meet us half way to give the puppy back, but she refuses. She will only offer the full cost of the puppy back if we deliver it to her in TN, and no other costs, or 2/3 of the money back and we keep the puppy.

We have accepted her second offer because we are unwilling to travel clear to TN at our expense to return the dog. (We have yet to receive the money, though.)

What other recourse do we have against this breeder? This is clearly fraud, as she has tripped herself up with other tidbits of conflicting information in emails, etc. If we took her to court, could we get punitive damages? Where would we have to take her to court? Can we still even take her to court if we accept the partial refund and keep the dog? We did not get what we paid for, a specific registerable purebred Bichon. We are not even convinced that this is a purebred anymore.

Follow-up

Just received an email from the breeder that she has withdrawn her offer of any settlement (I think she talked to her husband after she talked to us.)

 

[divgradcurl]

If we took her to court, could we get punitive damages?

Unlikely, but it never hurts to ask the court for them. You may have a better-than-usual chance of proving "willful" misrepresentation because of the specific meds that were given you, but that might require you to pay the vet to come testify as a witness in your court case (a declaration or affadavit, even if signed under oath and notarized, will almost never be sufficient).

Where would we have to take her to court?

I'm guessing that this would be a small-claims action, in which case you would most likely have to sue her in her home state. I looked at the Illinois small claims statutes, but couldn't find anything about service of out-of-state defendants, but the general rule is that a small claims court does not have the authority to render judgments against out-of-state defendants unless the defendant was served while actually physically present in the state. A quick call to your local county courthouse would probably get you a definitive answer to this question.

Can we still even take her to court if we accept the partial refund and keep the dog?

What would you sue her for? You can't get a full refund and keep the dog; the most you could hope for would be the difference between the value of an AKC-registered dog, and the dog you have, less the 2/3's you already received, plus any punitive damages awarded by the court.

We did not get what we paid for, a specific registerable purebred Bichon. We are not even convinced that this is a purebred anymore.

But you did get something, so what you are entitled to is the difference between what you paid for the dog, and what the dog is actually worth. The only way to get a full refund would be to return the dog.

Just received an email from the breeder that she has withdrawn her offer of any settlement (I think she talked to her husband after she talked to us.)

I guess you have to decide what to do at this point. Unfortunately, if you want to sue her, you will probably have to do it in TN, and the costs associated with travelling to TN for the case are not reimburseable by the court.

 

[CO19]

Personally, I would most definately be sending a certified letter to the breeder explaining what you did in this post and requesting payment in full (plus any vet bills you incurred) to be returned and that you will return the dog at her expense. Give her 2 wks to meet your terms....

Should she fail to satisfy the matter to your satisfaction, I would initiate legal recourse. The certified letter would be helpful to show the judge that you exhausted efforts to get your money returned. Contact the small-claims court in HER COUNTY OF RESIDENCE for filing instructions and fees. Good luck!

 

[BelizeBreeze]

I agree with Div on most points, however there are two points where I disagree.

Venue for this case can be brought in Kentucky where the contract was consumated.

COMMONWEALTH OF KENTUCKY ex rel. ALBERT B. CHANDLER III, ATTORNEY GENERAL VS. B & B WORM FARMS, INC.

Furthermore, the choice of in which county to bring such action is governed by KRS 452.480:

452.480 Where transitory action may be brought.
An action which is not required by the foregoing provisions of KRS 452.400 to 452.475 to be brought in some other county may be brought in any county in which the defendant, or in which one (1) of several defendants, who may be properly joined as such in the action, resides or is summoned.

the other point on which I disagree requires explanation and further facts.

You said that the seller offered two options. Did she make these offers in writing?
You also said you accepted the second of thes options. Dis you make this acceptance in writing?

If the answer to BOTH is yes, then a separate contract existed and you have an action for breach on the second contract.

You also may have a cause of action for fraud in the inducement of the underlying contract.

First answer the above two questions.