Kenneth Morrison v. The Barking Dog, Ltd.

In Case No. 2023-0749, Kenneth Morrison v. The Barking Dog, Ltd., the court on November 12, 2024, 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 plaintiff, Kenneth Morrison, appeals an order of the Circuit Court (Zaino, J.) entering judgment in favor of the defendant, The Barking Dog, Ltd., in a small claims action to recover certain veterinary costs allegedly incurred as a result of the defendant’s negligence in briefly caring for the plaintiff’s dog. We affirm.

In entering judgment for the defendant, the trial court determined that the plaintiff failed to meet his burden to prove that the injury to the dog — heat stroke — had been caused by negligence on the part of the defendant. Among other things, the court found that the plaintiff had failed to prove that the dog was in good health and not already hyperthermic prior to being placed in the defendant’s care, noting that the available medical records indicated that the dog had recently experienced medical issues and was recently on prescription medication. Further, the court found that the dog was only outside in a shaded area for approximately 30 minutes on an 80-degree day, and the record demonstrates that, soon thereafter, the plaintiff retrieved the dog and took it home for a period of time “before determining [the] dog was distressed enough to require vet[erinary] care.” Accordingly, the court concluded that “[t]he dog’s temperature alone does not establish that [the injury] happened while at the Barking Dog or that their actions played any role in same.” Although the plaintiff argues otherwise, these findings are supported by evidence in the record, and we defer to the trial court’s judgment on such issues as resolving conflicts in testimony, measuring the credibility of witnesses, and determining the weight assigned to evidence. See McCabe v. Arcidy, 138 N.H. 20, 24 (1993). To the extent the plaintiff argues that the trial court erred with respect to certain evidentiary matters, we note that the technical rules of evidence do not apply in small claim proceedings, see RSA 503:7 (2010) (providing that the court may admit any evidence deemed material and proper).

We review a trial court’s decision on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard.

In the Matter of Hampers & Hampers, 154 N.H. 275, 280 (2006). Based upon our review of the record, the plaintiff has failed to demonstrate that the trial court’s evidentiary rulings were clearly untenable or unreasonable to the prejudice of his case. See id. Accordingly, we conclude that the trial court did not err by entering judgment in favor of the defendant. Lastly, we note that any issues raised in the plaintiff’s notice of appeal that were not briefed are waived. See In re Estate of King, 149 N.H. 226, 230 (2003).

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas, Clerk