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Fiala v. Dogs Deserve Better - DDB Motion for Summary Judgment Granted

DDB wins Summary Judgment
Ownership Rights to Joel Awarded to DDB


The court granted DDB's Motion for Summary Judgment today, a copy of the order can be read here. The order grants Summary Judgment to DDB on Fiala's claims based on contract and conversion. The dismissal is with prejudice, meaning that the order is final and Fiala cannot amend or bring the claim again absent an appeal.  While the order does not specify the grounds for the order, it seems that the basis of the order is simple: Fiala made a material alteration to the contract to which DDB never agreed.

The court also struck the affidavit of Hewko filed late (the day before the hearing), the order for which can be read here.

What is the significance of the order?  It should put to rest all claims regarding ownership of Joel. There are some other counts in the complaint, unfair trade practices act and implied contract, but in my opinion, the implied contract count should be dismissed as was the written contract count and the unfair trade practices act has nothing to do with the ownership of Joel.

The ultimate question, of course, is where does the case go from here? That will depend on how Fiala decides to proceed. Will she soldier on to the bitter end or cut her losses and move on? 

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Fiala v. Dogs Deserve Better-Motion For Summary Judgment

Fiala v. Dogs Deserve Better

Fiala Hires New Counsel
Files Opposition to Summary Judgment
Moves to Overturn Harassment Order

Summary Judgment Motion Argued August 5, 2010

The Motion for Summary Judgment filed by Dogs Deserve Better, which can be read here, was argued today, August 5, 2010. 

Fiala filed her opposition to DDB's Motion for Summary Judgment, which can be read here.  Fiala also filed an affidavit, which can be read here, and a declaration by Marion Hewko, which can be read here. Fiala also made a Motion to Overturn the Anti-harassment Order, which included her declaration which can be read here. It is her position that she thought the anti-harassment motion was continued, because she did not realize that the anti-harassment case and the contract case were two different cases.

DDB filed a reply to Fiala's Opposition, which can be read here.

A Motion for Summary Judgment is a proceeding in which the parties argue to the court that there are no issues of fact that would have to be decided by a jury, and thus the judge can rule on the case as a matter of law. Here, Fiala alleges she had an adoption contract which she admits she changed in part, which gave her title to the dog Joel.  She does not admit crossing out the "chaining" portion of the contract, and believes that was done by DDB.  She alleges that the contract was valid after she signed it including those parts she admits she changed.

DDB has filed a Motion for Summary Judgment, alleging that the part of the contract that she changed, in which she interliniates "x 1" regarding visitation and inspection was a material change.  DDB argues that Fiala in limiting their visitation of Joel after adoption to "x 1" would in essence mean they would have no continuing ability to check on Joel to see if he was ok.  They would never agree to that, and since that was a material change, they had to agree to it-whether a counter signature was usually required for adoption contracts or not.  This particular argument is important, because it makes countersignature of the adoption contract irrelevant. Since DDB never agreed to this change, the contract was never consummated, and Joel remained DDB's property. To give a concrete example, let's say you agree to paint my house for $500.  I sign the contract, give it to you to sign and you cross out $500 and put $800 without telling me.  You don't give me the executed contract back, so I am unaware of the change.  You then paint the house and demand $800.  My defense would be that you materially altered the price, and since I never agreed to the $800, you could not sue me under the contract I signed for the interliniated amount of $800.   

DDB also argued that Fiala violated the adoption terms by not getting the proper licensing.  This would constitute a breach of the contract.

Fiala attempted to raise a question of fact by filing a last minute (yesterday) affidavit of Marion  Hewko, who essentially said that DDB adoption contracts don't always have to be signed.  Read carefully, the affidavit does not say adoption contracts are never countersigned, just that they are not always countersigned.  Even if the judge were to allow the affidavit, it is not of much legal significance, because it doesn't rule out that in this case, the adoption agreement needed to be countersigned.

A written ruling is expected from the judge within the next ten days. If she denies DDB's Motion, the case will go to trial.  If she grants DDB's Motion, the contract portion of the case will be over, subject to appeal. There would still remain a count for Unfair Business Practices.

The anti-harrassment Motion is scheduled for August 15th. 

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Fiala v. DDB - Anti-harassment Order Granted

Fiala Fails To Appear


Anti-Harassment Order Entered
Attorney Fees Granted

Order Granting Anti-Harassment 

Dr. Fiala failed to appear today for DDB's Anti-Harassment Motion. Judge Kato waited approximately a half hour before beginning the hearing.  Ms. Page had to prove her harassment allegations despite the fact that Fiala did not appear.  This was not a default judgment.  Judge Kato was required to hear testimony regarding the harassment and the grounds for the order before ruling on it. The order can be read in its entirety at the link above.

The Order prevents Fiala from contacting Ms. Page or her daughter directly or indirectly (including social media), as well as restraining her from being within 1000 feet of Page's house or place of employment.  In addition, it grants Ms. Page's attorney fees in the amount of $1768.00. 

Things are beginning to become problematic for Fiala.  She is currently without counsel, failed to appear at the hearing today, and now owes Page's attorney $1768.00.  The Motion for Summary Judgment approaches, and the judge has put it off for two weeks so that Fiala has time to obtain counsel. The order continuing the summary judgment hearing to August 5th can be seen here.

It will be interesting to see if Fiala tries to overturn Judge Kato's Order, and if so, what grounds she expresses for that relief. At this point, DDB has won the first two rounds convincingly.

Fiala v. Dogs Deserve Better - Forgery Claim Dismissed

Fiala v. Dogs Deserve Better


Court Dismisses Plaintiff's Forgery Claim
Plaintiff Attorney To Withdraw
Fiala Moves to Continue Motion For Summary Judgment 

The latest development in Fiala v. Dogs Deserve Better:  First, the Court has dismissed the Plaintiff's forgery claim with prejudice.  The order can be read here. The "with prejudice" language means that the forgery cause of action cannot be brought up again, even in a subsequent lawsuit. The dismissal of the claim is not a surprise, because there really is no cause of action for "forgery." The forgery issue is really not a cause of action, but part of the allegations in the contract claim.

Second, Fiala's attorney has filed a Motion to Withdraw, effective July 5, 2011.  The order can be read here.  The July 5th date gives the Plaintiff time to secure new counsel. With trial in October, it will be important for Fiala to obtain counsel as soon as possible. The attorney is not required to give reasons for withdrawal, as that would require publication of privileged communications.

Finally, Fiala has moved the court to continue Defendant's Motion for Summary Judgment.  She did so without counsel, and the Motion can be seen here.

What's next? Plaintiff will either obtain new counsel or proceed pro se. There is also the possiblity that the plaintiff could dismiss the case, but that seems unlikely given the history of the case.