Today, the Court of Appeals denied the Motion for Stay of the Final Judgment for Possession of Piper Pending Appeal filed by Attorney Bell on behalf of Defendants COSR/Sanderbeck. This Motion was a last ditch attempt to force Piper’s owners to return her to the Rescue that has held her hostage for over 15 months.
On Thursday, July 23, the case of Piper, the Ch Sheltie (held by Defendents Central Ohio Sheltie Rescue (COSR) and Penny Sanderbeck) moved one step closer to conclusion when Judge Michael Brandt ordered her returned to her owners, Veronica Covatch and Michelle Wilson.
The Evidentiary Hearing – Piper Goes Home!
In an Evidentiary Hearing on the Replevin Action, Judge Brandt ruled that Piper had been withheld from her owners long enough. He ordered Sanderbeck (director of COSR) to return her by 4:30pm or face incarceration until Piper was turned over to Veronica Covatch and Michelle Wilson.
The hearing, which took place in the Franklin County Municipal Court in Columbus, Ohio, lasted several hours as Plaintiffs Covatch and Wilson presented proof of their ownership of the Champion Show Dog. They brought to the Court microchip identification, AKC papers, Vet records, Handler Records and financial proof in excess of $10,000 in the making of the petite sheltie, Ch Legacies Pipe Dream, also known as Piper.
Statements from the caretaker from whose yard Piper went missing on April 17, 2014 as well as the Affidavit from Piper’s Veterinarian who implanted her microchip were offered into the record, as well.
The Backstory – Beginning of the Battle
Piper’s microchip number was recorded in the field by Animal Control when Piper was found and added to the Shelter paperwork from the Franklin County Animal Shelter (FCAS) under the catgory “ID Trace”. The Shelter made one attempt to reach the Vet to whom the microchip was registered on Good Friday of Easter weekend, 2014. On Sunday, a notation was added to Piper’s file that COSR had been alerted of her presence at FCAS and her status was changed to “awaiting rescue”. Although the shelter records indicated the vet would call back with the owner’s contact information, the Shelter changed her status to “awaiting rescue” and upon opening Monday morning, the shelter changed her status to “no response, can’t do anymore”. By 11am, shortly after the Shelter opened, Piper was turned over to COSR/Sanderbeck (with her microchip number listed on all the transfer paperwork).
COSR/Sanderbeck maintained that because Piper was turned over to them after “three days”, they were now the legal owner of Piper, despite COSR/Sanderbeck having her microchip number from the outset.
When Ms Covatch contacted COSR/Sanderbeck on returning from the Sheltie Nationals in Missouri less than 24 hours later, Ms Sanderbeck refused to reply to Ms Covatch’s inquiries. She informed Ms Covatch that she had “personal issues” to attend (a dying friend) and could not respond right away.
With that refusal to answer Ms Covatch’s pleas for the return of her dog, this case began an arduous process culminating in the Evidentiary Hearing 15 months later.
The next five months entailed a change of Counsel for Piper’s owners as they moved to engage a Trial Attorney after mediation attempts had failed. By December, the new attorney, James Banks, filed to amend the original Complaint and Replevin Action to include the Franklin County Animal Shelter, Deb Finelli (then acting director of the Shelter) and the County Commissioners in charge of the operation of the Shelter.
During the beginning of the year, the new Defendants answered the Amended Complaint, an Order for Inspection by the Plaintiffs’ vet was issued by the Court was granted on Mar 12.
On April 17, another Pre-trial was held before Judge O’Grady at which time an Evidentiary Hearing was set before the Court for May 1. On April 24, the Defendants filed an Affidavit of Disqualification to have Judge O’Grady removed. On April 27, Judge O’Grady recused himself immediately placing the case back into the Municipal Court. On April 29, the case was reassigned to Judge Brandt and a new pre-trial date was set for 5/21.
On 5/21, due to the defendants added in the Amended Complaint not receiving notice of the hearing, the hearing was postponed until July 23. Judge Brandt notified all parties to the case that on July 23, the Replevin Action would be decided in an Evidentiary Hearing but no other motions would come before the Court that day.
Finally – a Day in Court!
At the hearing on 7/23, the Court at long last heard evidence provided by Ms Covatch and Ms Wilson to prove their rightful ownership of Piper. During the long months leading up to the hearing, Piper’s whereabouts remained unknown, however, due to a Temporary Restraining Order issued one year prior (7/28/14), COSR/Sanderbeck were under Court Order not to place her, breed her, spay her or exploit her. The Court had originally issued an Order of Possession, however, when the Bailiffs attempted to recover Piper, they were unable to access COSR’s facility (also Sanderbeck’s home).
COSR/Sanderbeck immediately obtained a Counter Replevin bond in the amount of $10,000 to retain possession of Piper (now called Mirage) until a final decision on the Repelvin Action could be held. That day had finally arrive!
Following the testimony of Ms Covatch and Ms Wilson, during which time Attorney Bell attempted to show that Piper had been “given away”, both owners stated repeatedly that they were her owners and at no time had ownership transferred from their possession. At one point, Attorney Bell attempted to “prove” that another person was Piper’s owner based on a receipt in his name for a visit to her vet. Ms Covatch appeared to be amused as she pointed out that the gentleman in question was the boyfriend of Ms Wilson and had simply taken Piper in for her shots.
Following the testimony of the owners, Attorney Bell called to the stand Deborah Finelli, acting director of FCAS during the time Piper was picked up. Ms Finelli attempted to claim that the Shelter had gone above and beyond the call of duty in attempting to locate the owner of the “stray” dog brought into the shelter. When Finelli was presented with evidence that another sheltie (Lady) who had been turned over to COSR one month prior to Piper, Ms Finelli claimed not to recongnize that information. Lady was also microchipped yet none of her listed phone numbers were valid. When the Shelter contacted the implanting Vet, he advised the Shelter he had not spoken with the owner for many years. Yet, when Lady was released to COSR/Sandebeck, she was done so with the explicit written instructions on her release paperwork that, despite the microchip phone contact numbers being invalid, Lady would have to be returned to her owners should they come forward. Ms Finelli also denied the Shelter had any category for an ID Trace, also in contradiction to both the intake form from the field officer and the paperwork listed on Lady’s release form stating the ID Trace hold had been removed. The ID Trace hold is for animals with identifiable information that, according to the Shelter Operations Manual in effect at the time Piper was held, automatically triggers an extended hold period to enable the Shelter to trace and notify an owner that the Shelter has picked up the animal.
At the conclusion of the testimony offered by Ms Finelli, Attorney Bell then attempted to call Gail Kirk, a volunteer at FCAS, as a witness. When asked by Judge Brandt if Ms Kirk would testify as to ownership of the dog, Bell replied no, that she would testify as to how COSR/Sanderbeck came into possession of Piper. Judge Brandt then asked if Bell had any additional witnesses who would testify as to ownership of Piper and Bell replied “no”.
Judge Brandt stated he was ready to rule on the Replevin Action as to the ownership of the dog. At that point, Ms Sanderbeck shouted out “We are the owners!”. The Court responded “That’s what you think.”
The Court then informed Ms Sanderbeck she was not under oath and could not say anything. When Bell protested he planned to call Sanderbeck as a witness, the Court responded that he would not allow any further testimony – that it was “ludicrous”.
At this point in the Proceedings, Bell announced his intention to “make a record” and “respectfully disagree”, claiming that since the Shelter and Rescue complied with Ohio Revised Code, they were owners of the dog by “virtue of that”.
The Court informed Bell that he was wrong. Brandt stated he was making a decision and he was making it “right now. Okay, end of story”, stating that in a replevin action, it was up to the Court to decide if the Plaintiffs (Covatch and Wilson) had established ownership of Piper and, in his ruling, they had. He then ordered Piper returned to them immediately or the COSR bond would be forfeit.
Bell immediately asked the Court to Stay the order, the Court replied “No, File it in the Court of Appeals, I’m not going to stay the matter”. The Court then stated “these people have been without their animal for over a year. Okay. So they get their dog back today.”
Judge Brandt then pointed out the original Order for Recovery (July 28, 2014) was not completed because the Court Process Servers could not gain access to the Rescue, otherwise Piper would have been picked up that day. When Bell protested that his clients had posted a bond, Judge Brandt informed Bell that same bond would be forfeit if Sanderbeck did not comply with his order.
At this point in the Proceedings, Bell announced his intent to file with the Court of Appeals for an immediate Stay of the Order for Possession. Bell had until the end of day to attempt to get the Court of Appeals to block the order, however, no such stay was issued.
Judge Brandt issued his Final Order for Possession and Sanderbeck was informed that should she not comply, she would leave the Court in handcuffs. The Court set a 4:30 deadline for COSR/Sanderbeck to relinquish Piper, however, when the Bailiffs showed up at the COSR headquarters (also the home of Sanderbeck), no one answered the door. It looked like the Order of Possession would again be ignored, however, the Bailiff attempted once more to recover Piper, informing Sanderbeck that should she refuse, she would be taken to jail in handcuffs, the counter bond would be forfeit and her own animals would be seized by animal control and held until she complied. At 6:45, two hours and 45 minutes after the set 4:30pm deadline, Piper was finally in the arms of her owners once again.
Attorney Bell Appealed for a Stay of the Final Judgment for Possession
Attorney Bell subsequently filed a one paragraph “Motion to Stay” the final Order of Possession with the Ohio Court of Appeals on the same day of the hearing, July 23. However, Attorney Bell failed to notify opposing Counsel, Attorney Banks, instead, the Appeal stated a copy of the filing had been placed in the U.S. Mail. He subsequently claimed to have filed an amended Motion for Stay on July 24 using proper service (by facsimile) to the Plaintiffs’ Attorney, however, that also was not received by Counsel.
The Appeal was assigned to the regular Calendar (not expedited) for hearing. In the filing of the Appeal, Bell lists in the Docket Statement Question 1. that this was not a premature filing before any entry of judgment. Bell also checked in Question 5 that the judgment did not dispose of all other claims by the parties. (Final Trial is set for August 27.) Bell also stated that the extent of settlement discussions prior to the judgment were “minimal” and, no pretrial discussions were attempted and that a pre-trial “settlement” conference would not be of any assistance for resolution in the matter.
In Question 16. Bell summarized the issues to be raised on Appeal as follows:
The Trial Court erred in (1) refusing to allow Appellant to present evidence at replevin (2) overruling Appellant’s Motions for Discovery Orders and for Leave to File Counterclaim and in Granting Appellees’ Motion to Strike Counterclaim (3)ordering possession of disputed property to Appellee who is not the owner.
The Owners’ Response to the Appeal
In the Appellees’ Memorandum Contra Appellants Motion to Stay (43 pps), Attorney Banks broke down the response into multiple sections. Beginning with A. Facts and Procedural Posture, Banks delineated the history of the case, including those undisputed and decided facts (the Order of Possession, the Court’s denial of the Defendants’ Motion for Partial Judgment dismissing fraud claims and dismissing Sanderbeck as an indivdual capacity (11/18/14).
Attorney Banks then summarized the Leave to file Amended Complaint adding parties and claims, along with the Defendants’ Answer and Amended Answer.
On 6/25/15, the Trial Court issued an order indicating Judge Brandt would hold an Evidentiary Hearing on the Plaintiffs’ replevin claim only on 7/23/15.
On 7/2/15, the Defendants COSR/Sanderbeck attempted to limit Plaintiffs from introducing any evidence or testimony at the 7/23 hearing by filing a Motion for Discovery Sanctions and in Limine, to which the Plaintiffs filed a Motion to Strike said Motions by the Defendants. Plaintiffs also filed their Memorandum Contra for Discovery Sanctions. (in English, Attorney Bell, for COSR/Sanderbeck attempted to prevent Ms Covatch and Ms Wilson from presenting evidence of ownership while Attorney Banks, for Ms Covatch and Ms Wilson, pointed out that the Motions filed by Bell were invalid due to his not following set Court Rules and Procedures in making his filings – the Counterclaims being filed past the legal deadline and the Discovery Sanctions did not apply due to the defendants’ demanding interrogatories exceeding the Court limit. (Interrogatories exceeding 40 questions require the Attorney to seek Leave of Court for permission to the additional discovery requests).
Attorney Banks also noted that Bell did not properly notify Plaintiffs’ Attorney of the Notice of Appeal and Motion for Stay, as required by the Court.
Noted in his Memorandum Contra, while not in the official transcripts, at each pre-trial prior to the Affidavit of Disqualification, Judge O’Grady indicated that his belief was that Piper should be returned to her owners. That same belief was also indicated by Franklin County’s counsel.
On April 17, Judge O’Grady indicated he was going to issue an order requiring Piper to be returned to the Plaintiff’s but when Bell objected, Judge O’Grady scheduled an Evidentiary Hearing for presentation of evidence on May 1, 2015.
As a result, Attorney Bell filed an Affidavit of Disqualifiction to have Judge O’Grady removed from the case. To expedite the case, Judge O’Grady recused himself, thereby moving the case back into the Municipal Court where Judge Brandt then was assigned the case.
When Judge Brandt received the case, he also ordered an Evidentiary Hearing on the Replevin Action – this one for July 23. Attorney Banks’ states in his Memorandum Contra, Judge Brandt expressed intent to dismiss the County Defendants, to deny COSR/Sanderbeck’s Motion for Discovery Santions and in Limine, to strike Defendants’ counterclaims but not award sanctions and to deny Defendants Leave to File Counterclaims. Judge Brandt also intended to issue other orders “as appropriate”. (the transcript of the July 23 hearing is not available yet.)
According to Attorney Banks’ Memorandum Contra, Judge Brandt based his decision of ownership (but not exclusive to) the following evidence:
Piper was microchipped. She was obtained by FCAS after 5pm on Thursday of Easter Weekend. The microchip was sold to Crittercraft (Plaintiff’s vet) whose office was contacted the afternoon of Good Friday, Easter Weekend. The office promised to review documents for owner contact and call the shelter with that information. Instead, Piper was released to COSR on Monday morning at approximately 11 a.m. before the Plaintiffs’ vet returned that call with the owner information.
Bell’s position re COSR/Sanderbeck’s ownership, however, appeared to be a “gotcha” moment. The Shelter released Piper to COSR/Sanderbeck as a stray instead of an ID Traceable dog. According to Attorney Bell, the dog now belongs to COSR/Sanderbeck, despite the microchip and subsequent owner information that was available to both FCAS and to COSR/Sanderbeck.
Even though the Trial Court allowed Attorney Bell to present “allegedly relevant” testimony from the then Assistant Director of FCAS, Deborah Finelli, her testimony instead confirmed the evidence of ownership submitted by the Plaintiffs.
The Trial Court also allowed Ms Finelli to testify despite the objections of Attorney Banks that Ms Finelli had been in the Courtroom during previous testimony of witnesses and despite Judge Brandt ordering all those who would testify to leave the Courtroom. Ms Finelli failed to withdraw from the Courtroom with the full knowledge of the Defendant’s attorney during the questioning of Ms Covatch and Ms. Wilson.
Ms Finelli’s excuse for not leaving the Courtroom was that she thought she was a party to the action. During her testimony, she claimed to be unaware of the use of the term “ID Trace” as an extenuating circumstance requiring a longer hold period of any dog brought in with a microchip or other identifiable feature (rabies, license, etc).
When Attorney Bell offered no relevant testimony or evidence and did not attempt to exclude evidence presented by the Plaintiffs, Judge Brandt issued a final Order of Possession. That Order included language requested by Attorney Bell that stated “There is no just reason for delay” – a legal phrase upon which Bell would attempt to hang his appeal. Although Bell made an oral Motion for a Stay of the Order during the Hearing, the Judge denied that Motion and referred Bell to the Court of Appeals.
In Section B. of the Memorandum Contra, Attorney Banks cited well settled law that despite the requested language “There is no just reason for delay”, until an order is final, it is not subject to appeal. Attorney Banks cited case law that ruled “A judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order.” Indeed, in Bell’s own submission to the Court Docket, he admitted that there are still unresolved issues to be decided.
As the Court issued an Order for Possession, that “order” is only appealable when it affects a “substantial right”. Attorney Banks pointed out that the owership of a dog is not considered a “substantial right” as defined by law. Further, the Order for Possession does not “determine the action or prevent a judgment” as other claims of both the Plaintiffs and Defendants are still outstanding.
The short answer, in layman’s terms – the case is not over and is not final. Therefore, it is not appealable as no final decision has been rendered in the case – only the location of Piper during the remainder of the proceedings has been determined. An act of Repelvin is based on which party is most likely to prevail – and now, three Courts have stated that the Plaintiffs are that party by determining Piper should be returned to them.
Another issue to be considered by the Appeals Court was that the Defendants have never made a counter-replevin claim, nor have they sought a final Declaratory Judgment stating that COSR/Sanderbeck are the rightful owner of Piper. Instead, the Defendants filed a Counterclaim for monetary “damages” caused by negative responses toward COSR/Sanderbeck made by anonymous people on the internet and by claiming an alleged burglary took place by unknown subjects upon Sanderbeck’s place of residence.
Throughout the entire proceedings, COSR/Sanderbeck have never filed for legal, physical possession of Piper.
Section C of the Memorandum Contra pointed out multiple flaws in the filings and service of the Motion for Stay. Service was not given to Plaintiffs’ Counsel, the Motion for Stay did not include the necessary Affidavits and Sworn statements supporting the Motion and no reasons for relief requested were provided.
Furthermore, the Defendants’ claim of having a $10,000 bond already posted to the Municipal Court was not valid for the Appellate proceedings. With the return of the disputed property (Piper), that bond, according to the issuing terms, expired when the subject property was returned and is no longer valid.
COSR/Sanderbeck failed to acquire the necessary bond required by the Appellate Court. Section C also addressed the failure of Bell to serve the Plaintiffs’ Attorney of the pending Appeal, even though Bell walked past Attorney Banks in the Court hallway. Although Attorney Banks requested service of the Motion to Stay by fax, no such service was sent by Bell, instead an “Amended Motion for Stay” was sent with Bell claiming that the original filing inadvertantly stated service was by “regular mail”. Bell’s lack of adhering to the Procedural Rules of the Appeals Court raised questions regarding motive behind these repeated failures.
In Section D of the Memorandum Contra, Attorney Banks pointed out the obvious: the Motion for Stay is moot due to the Defendants turning Piper over to her owners. Piper has been turned over – there is no longer any reason for a “Stay”.
Section E is the most interesting. Attorney Banks accused Attorney Bell of using “dilatory tactics to prevent the return of Piper to Plaintiffs-Appellees and/or to cause Appellants further emotional distress”.
While Bell/COSR/Sanderbeck sought a stay, they declined to serve notice of the appeal, the motion for stay or the docketing statement to Attorney Banks. Banks accused Bell of falsely claiming the original Motion was faxed and served by ordinary mail. Further, the Docketing Statement revealed that Bell did not file a copy of the order for a transcript, without which they cannot proceed.
Attorney Banks pointed out in Section E that Attorney Bell filed no facts to support a claim of error nor were any facts given to support a stay of the Order of Possession, both of which are required to proceed to the Appellate Court. Attorney Banks also pointed out that the conduct by Bell/COSR/Sanderbeck are a continuation of the behavior set forward in the Plaintiffs Memorandum Contra Motion for Discovery Sanctions and In Limine. Attorney Banks stated that to allow a Stay of Execution of the Order of Possession would allow the Appellants “to continue their unlawful and egregious acts.”
Attorney Banks concluded that based on what was presented to the Appellate Court, no stay of the Final Order of Possession was appropriate. Banks also stated in that conclusion that “Rather, this Court lacks jurisdiction of this appeal and the same should be dismissed. At minimum, the request for stay is moot and should be denied.”
Attorney Banks included the partial transcript of the 7/23/15 proceedings. Also included in the Evidence filed: posting of the Counter Replevin Bond underwritten by Western Surety Company; the 7/24/15 letter from Attorney Banks to Attorney Bell requesting copies of the appeal and motion to stay; the fax cover sheet for Attorney Banks delivered to Attorney Bell indicating no receipt of service of the appeal or motion.
Attorney Bell filed yet another Argument before the Court
Following Attorney Banks’ Memorandum Contra, Attorney Bell filed a Reply Memorandum in Further Support of Motion for Stay.
In this Reply Memorandum, Bell acknowledged all 43 pages (including attachments) filed by Attorney Banks on behalf of the Plaintiffs.
The first assertation by Attorney Bell was the Counter Replevin Bond filed in the Municipal Court was in compliance with the Ohio pre-judment replevin statute. He admitted the bond was to stay the ex parte order issued by Judge Tyack in July 28, 2014 while implying that the initial Replevin order was improper due to the Defendants being represented by counsel. He did not address the requirement of the Ohio Court for an Appellate bond to be requested and the decided amount was to be filed within that Higher Court. He also failed to address the terms of the Counter Replevin Bond which expired with the return of the disputed property, in this case, Piper.
Attorney Bell accused Plaintiffs’ Counsel of “false or misleading” assertations in the Memorandum Contra without explicitly stating what was untrue or offering counter proof to such statements.
He then claimed that the Motion for Discovery Santions (6/18/15) was not filed “in response” to the scheduled Evidentiary Hearing, rather it was filed in response to the Plaintiffs refusal to answer discovery interrogatories. Bell failed to address his neglect of requesting Leave of the Court to ask for additional interrogatories exceeding the 40 originally allowed.
In response to Attorney Banks’ assertation (accompanied by Exhibit D – the fax transmittal log) that the documents were not served in time for the hearing, Bell stated “Apparently, only the Plaintiffs-Appellees are allowed to serve things by mail, irrespective of Civil Rule 5.)
Attorney Bell stated the Defendants “strongly object to the attempted injection of inappropriate materials dehors [outside the scope of] the record in this action, claiming that the Appellants have, indeed, ordered a complete transcript of the proceedings.
Attorney Bell then stated that the Affidavits of Disqualification were not filed “in order to avoid an evidentiary hearing and an adverse ruling” – instead, the Defendants believed there was an improper bias agains them. To further argue the case of “bias”, Attorney Bell pointed out that the Trial Judge did not contest those allegations in the filed Affidavits and instead, Judge O’Grady recused himself. What Attorney Bell neglected to include was the offer by Judge O’Grady to withdraw one month earlier should either party ask him to step aside – at that time, Attorney Bell appeared to be content for him to remain on the case.
Attorney Bell’s most important “fact” in this Further Memorandum “for the present purpose was that while the Trial Court did take evidence on 7/23/15, it only heard the Plaintiffs-Appellees’ evidence and a part of the testimony of one witness for the Defendants-Appellants (Deb Finelli). The Trial Court refused to allow the Defendants-Appellants to present an other witnesses or evidence, and this is a gross injustice.”
FINALLY, Bell/COSR/Sanderbeck have stated their case.
“The Defendants-Appellants have always believed, and stipulated at hearing, that the dog in question had belonged to the Plaintiffs-Appellees at some time in the past (prior to 2013). The Plaintiffs-Appellants (and the Trial Court) apparently believe that if they ever owned the dog, then they necessarily always owned the dog. Even the limited evidence before the Trial Court established that the dog had been picked up as an unlicensed stray by Franklin County Animal Care and Control, and then held for a day longer than required by the Franklin County Animal Shelter before being turned over to the Defendants-Appellants.
By operation of Ohio law, the Plaintiffs-Appellees are not the “rightful owners” of the dog. They may have once owned this dog, but they did not license it nor redeem it from the Shelter and the Shelter followed the Ohio Revised Code in turning the dog over to the Defendants-Appellants.2 [cites Ohio Code 955.18]
At tht time, the Defendants-Appellants became the owners of the dog. If the Plaintiffs-Appellees can retake possession of this dog under the undisputed facts of this case, then every pet tht is ‘adopted’ from an Ohio shelter can be yanked away from a loving home by a breeder or seller who has some personal grievance against the ‘adopting’ family.”
Attorney Bell claimed that the only witness he was allowed to present (Deb Finelli) established the Shelter’s compliance with section 955.16 of the Ohio Revised Code (although Ms Finelli confirmed the shelter’s lack of adherence to the Franklin County Animal Shelter’s own polices and proceedures regarding ID Trace holds and the inadequate effort to reunite this microchipped Champion show dog with her owners.)
While Attorney Bell charged the Trial Judge erred in preventing him from presenting his case, he then attempted to present that same case to the Appellate Court in his filing. He also alleged the Trial Judge erred in ruling the Plaintiffs were the “owners” of Piper claiming the Judge’s reasoning was “apparently ‘once the owner, forever the owner’. Attorney Bell failed to include in his Further Motion the statement by Judge Brandt that he questioned whether the Shelter followed their own policies in the release of Piper. By extrapolation, as the Shelter erred in the release of Piper to COSR/Sanderbeck, the Judge ruled Piper was to be restored to her owners.
Attorney Bell also argued the decision rendered for Order of Possession affected a “substantial right made in a special proceeding” and was therefore appealable. While Attorney Banks offered cites and caselaw to support his argument that owning a dog was not considered a “substantial right” under the law, Attorney Bell offered sarcasm while stating “It is incredible that the Plaintiffs-Appellees would argue straight-faced that the right that is at the core of this action, the right they seek to enforce, is not a “substantial right.”
Defendants’ Counsel then proceeded to argue his entire case in his Further Motion before the Court. He claimed, in contrary to Attorney Banks’ assertion that the final judgment would still offer the Defendants a meaningful and effective remedy by appeal AFTER final judgment, the return of Piper to COSR was the only action that should be taken. Attorny Bell asserted that monetary damages and injunctive relief sought in the Defendants’ counterclaim were unrelated to the possession of Piper, therefore, the Motion for Stay was appealable.
Bell’s argument over improper service boiled down to “did not! did, too!”.
One interesting bit of information was the question of whether the Stay was moot as the Defendants turned Piper over to her owners. Attorney Bell claimed Attorney Banks “conveniently omit mention that the Trial Court improperly threatened Defendant-Appellant Sanderbeck with incarceration if she did not obey the order by 4:30pm on July 23. That threat was clearly crafted with the design to prevent the Defendants-Appellants from being able to obtain review of the Order in this Honorable Court.”
Bell continued, “These Defendants-Appellants should not have to choose between their freedom and their appellate rights, and the Trial Court’s threats forced that choice upon them.”
Ironically, during the actual Hearing, Attorney Bell was overheard telling Ms Sanderbeck to “go to jail, i can win this on appeal!” Ms Sanderbeck, evidently, declined to follow her Attorney’s advice.
Regarding the bond, Attorney Bell stated “If this Honorable Court wishes a different bond to be posted to secure the Stay, the Defendants-Appellants are ready, willing and able to do so. Two paragraphs later, Attorney Bell states “The Defendants-Appellants are a non-profit charitable companion animal rescue organization that has sought only to protect its members and supporters, and to ensure that the dog in question would be returned to its true owners as of April 2014. The Plaintiffs-Appellees have engaged in a campaign of harassment and bullying against the Defendants-Appellants.
Most bizarre, however, is the final request for the Stay:
For the reasons and upon the authorities stated herein, this Honorable Court should stay the Municipal Court’s Order of July 23, 2015, (and all further proceedings in Municipal Court) until such time as this Honorable Court can see from the record (which has been ordered and paid for) that the Defendants-Appellants were substantially prejudiced by the Trial Court’s refusal to allow them to present evidence and its erroneous “once-an-owner-forever-the-owner” reasoning.
The next Court date is August 27 where the case is set for Trial – unless there is yet a further delay.
For now, this case is still ongoing – and at what cost to the owners of Piper and to Piper, herself. To date, the cost of this trial is in excess of $100,000 for the owners and still rising with every Motion, Stay, Further Motion filed. Each step of the legal proceeding must be answered as the legal process moves forward.
Also, the damage done to COSR/Sanderbeck in pursuing this course of action is real and significant. COSR/Sanderbeck have been removed from the National Sheltie Rescue Network and have been soundly criticized for this action. Why would a legitimate rescue spend 15 months keeping a loved dog from her owners?
This case, as stated by Judge Brandt, has taken on a new life – one that is not about who owns this dog or even about the well-being of this dog. Attorney Bell states that COSR/Sanderbeck are a non-profit charitable organization dedicated to the well-being of animals. How is spending a year and three months to keep one dog from her owners adhering to the mission statement of that organization – a rescue founded on the recovery of a lost sheltie named Knight – who was reunited with HIS owner/breeder and was Sanderbeck’s inspiration? How many other animals have been overlooked and neglected as time and funds are redirected into this lawsuit? Why?
Is this one dog who has a family who wanted her back so critically important to the rescue? What is the real agenda of COSR/Sanderbeck in attempting to wrench this dog from her owners? What is worth exacting an emotional toll on both human and animal and why does one who claims to represent the best interest of animals exact a crippling financial toll on the owners? Piper was JUST in the rescue’s possession for less than twenty four hours prior to the owner calling to collect her dog? WHY was she not returned then?
After all the paper, the filing, the arguing, the posturing – the question that is still unanswered in this case is still – WHY?
Piper is finally home with her owners and her pack. The Court of Appeals today denied COSR/Sanderbeck’s Motion for Stay Pending Appeal of that that Final Order for Possession. For now, Piper is truly safe.
We will continue to cover the August 27 hearing and report the final determination of this case (pending no other appeals) while we join in celebrating Piper’s return home!
To view the actual Court Documents before the Court of Appeals, here are the links: