- Category: Breaking News
- Published on Sunday, 05 June 2011 18:10
- Written by Super User
Fiala v. Dogs Deserve Better
DDB Wins First Round As Judge Denies Plaintiff's TRO and Replevin
Forgery Claim Dismissed-Plaintiff attorney Moves to Withdraw
Fiala Moves to Continue Summary Judgment Hearing
For those of you who have not been following this story, there is an ownership battle between Dr. Fiala and Dogs Deserve Better playing out in King County Court in Seattle. Both sides have been utilizing social media to promote their side of the story. Fiala's side can be seen here, while Dogs Deserve Better makes their case here. The case surrounds the ownership of a Pit Bull Joel. The short story is that DDB rescued the dog and gave it to Fiala to care for as a foster. Eventually an adoption contract was signed by Fiala with alterations saying the dog would be chained outside. DDB then decided to repossess the dog.
The Most Recent Motions
Plaintiff's attorney has moved to withdraw, and the forgery claim has been dismissed. These pleadings and their analysis can be found at the link here. Fiala has also moved, on her own without an attorney, to continue the Defendant's Motion for Summary Judgment so that her new attorney will have time to prepare. The Motion can be read here. The trial is still scheduled for October.
What does this mean? It appears that Fiala and her attorney did not agree about how the case should proceed and/or the merits of the case, and counsel felt the need to withdraw effective July 5th. The case will continue with either new counsel or with Fiala representing herself. The forgery claim has been dismissed "with prejudice" meaning it cannot be brought again. Which is not surprising to me, since I don't really think a cause of action exists for "forgery." It is simply an allegation in the contract claim.
What the Relevant Pleadings Reveal
I recommend you read all the pleadings-they will give you both sides of the dispute
Fiala filed a complaint, which can be read in its entirety here. The complaint basically asks for Joel to be returned to her, and alleges the facts upon which she relies for that claim. While Fiala admits interliniating the adoption contract to add that Joel would be outside ocassionally and that visits would have to be prearranged, she denies striking through the word "will not" regarding outside penning. She alleges the "will not" strike through was altered by DDB, and actually adds a count for forgery in the complaint. Plaintiff alleges a breach of the adoption contract, conversion (civil theft), replevin (a request for the dog back) and violation of Washington's Consumer Protection Act in soliciting funds for Joel's veterinarian bills without first registering with the secretary of state. The Complaint essentially alleges that the falling out over Joel was a result of a letter that was sent by Fiala on April 7, 2011 to the National Organization raising questions about the solicitation of funds and failure to reimburse Fiala for veterinarian expenses.
Affidavits were filed with the complaint.
- Dr. William Healy, psychiatrist, testified to Ms. Fiala exhibiting increased anxiety and PTSD type symptoms, his affidavit can be read here.
- Dr. Barbara Gomez, veterinarian, testified that Dr. Fiala had formed a bond with Joel and breaking such bond would be detrimental to the dog's progress, the affidavit can be read here.
- Julie Bensen, professional dog walker and pet sitter testified that she felt it would be best if Joel continued to be kept by Fiala, her affidavit can be read here.
- Ginger Luke, Founder of Ginger's Pet Rescue, likewise testified that it would be best if Joel were to be kept by Fiala, her affidavit can be read here.
- Shiela Goold, owner of the dog training service ZenDiggity Dog, likewise testified that it would be best if Joel were kept by Fiala, her affidavit can be read here.
- Dr. Fiala's affidavit, with her version of events, can be read here.
The complaint asked the court for a Temporary Restraining Order regarding Joel and for a Writ of Replevin.
The Defense Pleadings
The defense, of course, paints an entirely different picture of the Plaintiff and the transaction. The attorney for DDB, filed an affidavit in opposition to the Complaint, which can be read here. I have purposely redacted or omitted personal information involving the Plainitiff, even though the pleadings are "public record." There are affidavits attached to the Defense pleading as well, but they are all contained in the one exhibit above. To summarize the defense position via affidavit:
- Fiala has no licensed dogs, nor kennel.
- The affidavit of Kelly Page alleges a series of failed previous fosters with Dr. Fiala; the original intake of the dog from the police, payment for initial veterinarian treatment and neutering, the failed initial chipping on behalf of DDB because the vet ran out of chips with attachment showing this; the falling out between Fiala and DDB over the need for socialization of Joel; an email to Page apologizing for the aforementioned outburst and admitting her ambivalence at adopting Joel; the microchipping of Joel by Fiala without the consent of DDB, the hiring of trainers without the permission or consent of DDB, the requests by Fiala for daycare for Joel; that no claim for reimbursement was ever made to DDB; that Joel was picked up by DDB at Mutley Crew Cuts and refostered and that Fiala was called immediately regarding the pick up and notified that the National Group did not approve her contract; Fiala threatened legal action; that DDB did not alter the contract, and that the contract is invalid because it was never sigend by a representative of DDB; that Fiala has three dogs and three cats kept in outside pens.
- The Foster Form;
- Treatment Record;
- Vet Bills;
- Affidavit of Kailleen Shraine Washington Representative of DDB testified that she received the adoption contract with cross outs regarding penned dogs, and after consideration with other DDB people, she made the decision to repossess Joel and re-foster. They had this right under the foster agreement contract. She found the dog was chipped, but not registered, so she registered the dog with DDB.
- Affidavit of Ashley George DDB volunteer testified to the initial pick up of Joel, the unreliability of Dr. Fiala; that Joel was not being socialized by Fiala-she kept Joel separate from her other dogs because one of her dogs did not get along with him.
- Affidavit of Lara Mirkovich testified to the orginal rescue of Joel, the original vet care, meeting with the Sheriff and former owner who surrendered the dog;
- The surrender form signed by the owner giving title to DDB;
- Affidavit of Kelly Rothenbuhler who testified about the pick up of Joel from Mutley Crew Cuts, the identification of Joel via microchip in DDB name;
- Affidavit of Marie Belanger DDB Area Coordinator of DDB testifed that she reviewed the altered contract and told Shraine to repossess the dog.
The Defendant also filed a Memorandum of Law explaining why, legally, the Plaintiff should not be granted possession of the dog. The Memorandum can be read here. The Memorandum basically argues:
- The Plaintiff failed to follow the strict legal requirements for a writ of replevin in both the way the issue was raised and the allegations statutorily required;
- Plaintiff has failed to show any evidence she owned the dog;
- Harm to Plaintiff or Joel is irrelevant to who owns the dog;
- Plaintiff does not meet the zoning requirements to have four dogs since she must have a license;
- The foster form specifically allows repossession of the dog;
- The alleged adoption from was never signed by DDB and thus has no force and effect.
Court Denies Fiala's Possession of the Dog and Temporary Restraining Order
Based on the Pleadings above, the Judge denied the Plaintiff's Claim for Replevin and for a Temporary Restraining Order. The order can be seen here.
I don't see how the Plaintiff could have prevailed in the Writ of Replevin based on the pleadings. Writs of Replevin require special pleading and notice requirements, which were not followed here. I also don't see any "legal" evidence presented that shows Fiala had superior title to Joel. The foster agreement makes it clear that the dog can be repossessed. The adoption agreement was never signed by DDB and was therefore not binding. Breach of contract was the only theory presented. As a "legal" matter on the pleadings, it was a fairly clear cut issue. All the rest of the discussion, claims, counterclaims on Facebook, are irrelevant.
The case is far from over, however. The court's ruling is just the first round. The Plaintiff has the right to continue to contest DDB's ownership, and all the court has ruled thus far is that 1) DDB should keep the dog pending the litigation over ownership, 2) A temporary restraining order is unnecessary. The ownership of the dog is yet to actually be decided: and the court is not bound in any way by the initial determination that the dog stay with DDB pending the final hearing. In addition, there are still two counts of the complaint that have not even been considered; the forgery count and the Violation of the Consumer Protection Act.
Thanks so much for posting the pleadings. I just want to note that that Fiala doesn't deny that she altered the original contract. She admits that she altered the contract to state that the dog would be penned and that DDB would have to prearrange visits. She claims that she did not cross out the provision that the dog would be chained, and that's the crux of her forgery claim. She states that the changes that she made to the contract weren't material.
I am puzzled that this requires a lawsuit. Wouldn't everyone's money be better spent on those that need it? Some sort of arbitration could occur when reasonable parties can sit down together. I know both sides want the best for this little fellow. Sincerely, Elaine Grant
I have made the correction you suggested. Thanks for taking the time to read the article. I am always looking for articles to post from readers, and if you or anyone else would like to publish an article on the site, let me know.
I agree with you that the money spent on the lawsuit would be better served being spent elsewhere. That having been said, it seems like the parties have drawn a line in the sand. And once the court gets involved and people have spent money, it becomes hard to get people together. In some states, "mediation" is required before trial, and a party can move to have a case mediated. I don't practice in WA so I am not sure of the procedure there. Unfortunately at this point, the hard feelings on both sides will make mediation or arbitration difficult. And, it is an all or nothing kind of negotiation: somebody gets the dog and somebody doesn't. How do you settle that?
Once this gets to a she said, they said situation, there are no winners. Now it just becomes part of the legal system and will probably go around and around. Let's just hope that Joel is safe!
Does anyone know when the final custody case goes to court?
It is my understanding that the final hearing is scheduled for October. The lawyers can now file discovery and Motions regarding the case. Unless the Judge makes a dispositive ruling before October, the trial will go forward at that time.
They can save a bunch of money right now because this is what is going to happen.
1) Faila doesn't disagree that she altered the contract. Altering the contract must be agreed by with both parties. Therefore, she will lose the argument that she is the owner of the dog. DDB owns the dog. If her attorney doesn't tell her this, then they are ripping her off.
2)If Faila is owed money, DDB must reimburse the money to her for authorized actions taken on behalf of the dog.
3)Mental anguish will be dismissed.
I know that it must be very hard for Dr Faila no longer have Joel in per possession, but I think this to be a learning experience for Dr Faila on animal adoption contracts.
Remember Ellen Degeneres? She didn't get the dog back. Save the legal fees. Spend it on caring for other needy dogs. Be thankful that Joel is being cared for (according to another website I saw pictures of him at), and let's just move on from this.
It will go down just like that.
Unfortunately at this point, the hard feelings on both sides will make mediation or arbitration difficult. And, it is an all or nothing kind of negotiation: somebody gets the dog and somebody doesn't. How do you settle that?
I am not an overly religious person, but perhaps the courts could take an example from King David? Offer to split him in half and see who 'gives'. That's the one that shoudl get the dog.
While I have sided with Dr. Fiala prior to reading the legal documents here, these have given me much to ponder. No decision should be be made solely on emotion, thought my 'gut' says "I smell a rat".
Mr. Kray - If you are going to act as though you are a 'journalist', I urge you to check out your story and get your fact straight before you publish anything. The DDB adoption contract is a 'one way contract', it does not requrie a co-signature.
As far as the spelling of my name, please note it is FIALA.
and this matter is about so much more than a contract, which is being used as a transparent excuse for payback and greed.
The facts you neglected to mention is that I was a well-respected foster for DDB for 6 months and 11 dogs. That is, until I blew the whistle on the organization for questionable financial practices and unethical behavior. Coincidence that 7 DAYS after I blew the whistle on them, they entered a doggy daycare and 'repossesed' (their terminology) Joel, my beloved dog that I brought back from near death? Only a fool would think so.
If it's evidence you want, perhaps you should look at ALL of the evidence. Including the entire letter that was sent to Page the day Joel was taken, and her Twitter post of the same day, clearly showing payback motives for seizing Joel.
Please do your homework. And perhaps you will become a real journalist and not just a blogger.
Suzanne Fiala, MD