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post #4 of (permalink) Old 11-03-2004, 04:11 PM
Z Car Barbie
Join Date: Oct 2004
Posts: 409
SlickBeetle, it appears that you may have a claim for breach of contract, as well as fraudulent misrepresentation, however, it would really depend on the content of the contract itself. If the breeder has breached the contract against its terms, then you could sue on the breach and request compensatory damages (actual monetary expenses), as well as force the breeder to execute the documents you need to register the kitten. You could also sue on a fraudulent misrepresentation claim and seek punitive damages (money paid by the breeder to punish him for being deceitful to you and to help prevent him from doing it to others in the future - this would also include reimbursement of the complaint filing fees and service of process fees you paid to have the breeder sued and served). You would, however, need a copy of the contract you signed, as well as an Expert Affidavit (written statement from your vet), stating the kitten's medical condition at the time it was examined, and that, in his/her opinion, the breeder knew, or should have known, the kitten was not healthy at the time it was sold to you.

In the State of Arkansas, you have 3 years from the date you became aware of the "injury" (or 5 years with a written contract) in which to file a Complaint in the Small Claims Court of the county where the breeder resides or where the contract was signed (whichever is the case). The Complaint form can be obtained from the court. The breeder (defendant) will have to be served with a copy of the Complaint and Summons by Certified Mail or by a Sheriff (additional fee applies, however, it's best to have the Sheriff them, because if the breeder refuses to sign for the Return Receipt on your Certified Mail piece, then you may put them on-notice of being sued, and might flee from the Sheriff in his attempt to serve them later).

After being served, the breeder will then have 20 days (30 days if he lives outside the State of Arkansas) in which to file an Answer to your Complaint with the Court. If no Answer is filed, then you could obtain a Judgment By Default against the breeder, however, collecting on the judgment can sometimes become a major hurdle. If the breeder does not pay the judgment, you would need to obtain info. on any real property (assets) the breeder owns and file a Fi. Fa. (lien) against the property within each county where the property deeds are recorded. If you are only seeking to force the breeder to execute the documents needed to register your kitten, then it may well be worth it for you to sue. Otherwise, you might be out even more money, with no way to get it back from the breeder if you cannot locate any assets he owns to lien against.

Note: Attorneys are not allowed to represent anyone in Small Claims Court proceedings. If you or the breeder hires an attorney during the pendancy of the action, then the case will be transferred to Circuit Court.
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