Appendix 13 Order Regarding Motion to Dissolve Ex Parte Writ of Replevin

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Appendix 13 Order Regarding Motion to Dissolve Ex Parte Writ of Replevin

The following is an actual Decision and Order Regarding Motion to Dissolve Ex Parte Writ of Replevin and Motion to Dismiss that will help you better understand how complex a pet custody dispute can be. In this case, a rescue group claimed that there was a wrongful transfer of a dog by the adopter to another family member.

The key to the court's ruling is a concept that should not be forgotten: contracts are subject to an implied covenant in good faith and fair dealing. This is an idea rooted in the Restatement (Second) of Contracts section 205 comment a (1981). The decision also reminds us that the Federal Arbitration Act 9 U.S.C. § 1 et seq. applies when interstate commerce is involved. Lawyers and jurists will appreciate the quality of this Order.

STATE OF VERMONT

SUPERIOR COURT ADDISON UNIT HEIDI'S HAVEN RESCUE, INC., Plaintiff,

v.

JEANNETTE MYERS, a/k/a JEANNETTER RINGER, GORDON MYERS and TAMARA CLARKE,¹Defendants.

CIVIL DIVISION

Docket No. 185-8-13 Ancv

DECISION AND ORDER RE: MOTION TO DISSOLVE EX PARTE WRIT OF REPLEVIN AND MOTION TO DISMISS

This matter came before the Court for a hearing on December 20, 2013 regarding Defendant's Motion to Dissolve Ex Parte Writ of Replevin, filed November 15, 2013, Hon. Robert A. Mello, Superior Judge, presiding. Defendant's Motion to Dismiss, filed September 18, 2013 is also before the Court. Plaintiff, Heidi's Haven Rescue, Inc., is represented by Pamela Marsh, Esq. Defendants, Jeannette Myers (also known as Jeannette Ringer), Tamara Clarke, and Gordon Myers, are represented by Richard Cassidy, Esq.

BACKGROUND/PROCEDURAL HISTORY

On May 12, 2013, Plaintiff entered into a dog adoption agreement with Defendant Jeannette Ringer which contemplates the adoption of a dog named Sunday, which originally came from Louisiana. Defendants later renamed the dog Paisley. Heidi's Haven Rescue Adoption Agreement (admitted Dec. 20, 2013) [hereinafter Agreement]. The Agreement provides in relevant part:

2.2 RETURN. HEIDI'S HAVEN RESCUE retains the right to recover the adopted dog from Adopter if:

• the adoption is not satisfactory to the Adopter.
• in HEIDI'S HAVEN RESCUE's sole judgment, recovery would be in the best interest of the adopted dog,
• Adopter fails to comply with the provisions of this agreement,
• Adopter at any time misrepresents to HEIDI'S HAVEN RESCUE matters which are material to the welfare of the adopted dog,
• the adopted dog is found, in HEIDI'S HAVEN RESCUE's sole judgment, to be unsuitable for this placement, or
• HEIDI'S HAVEN RESCUE is legally obliged to recover the adopted dog from this placement . . .

2.4 TRANSFER OF OWNERSHIP. The adopted dog may not be transferred to any other person, firm, corporation, or organization for any reason whatsoever. Dog must be returned to Heidi's Haven if, for any reason, the adopter cannot keep him/her.

The contract also provides the following arbitration clause, "Any controversy or claim arising out of or relating to this agreement or the adopted dog shall be submitted to arbitration under the Commercial Arbitration Rules of the American Arbitration Association." Id.

The following facts are also relevant to the present dispute. Defendant Clarke is dating Jeannette Ringer/Myers and Gordon Myers' son Aaron. Sheila McGregor, agent for Heidi's Rescue, has seen the dog with Ms. Clarke since its adoption in May 2013. Ms. McGregor also looked on Ms. Clarke's Facebook page and noticed a picture of a dog with a tag that reads "Paisley." The picture has been admitted into evidence and the Court finds that it is a true and accurate picture of the dog once known as Sunday and referred to, by the Myers, as Paisley.

Evidence was also presented at the December 20th hearing that indicates Ms. Clarke and Ms. McGregor once worked together at a company where Ms. Clarke is a manager. At some point, Ms. Clarke reported to her superiors that Ms. McGregor was not performing well. Although the parties dispute terms upon which Ms. McGregor's employment thereafter ended, Ms. McGregor was either fired or agreed to leave after Ms. Clarke's performance report. During the time that Ms. Clarke and Ms. McGregor worked together, Ms. McGregor allowed Ms. Clarke to take rescue dogs from Heidi's Haven home with her for the weekend. That ended when Ms. McGregor no longer worked at the company.

On August 14, 2013, this Court, the Hon. Helen Toor presiding, issued an Ex Parte Order of Approval, based on Plaintiff's Ex Parte Motion for a Writ of Replevin, filed along with Plaintiff's Verified Complaint on August 14, 2013. Shortly thereafter, a constable attempted to execute the writ, but Ms. Myers would not voluntarily turn over the dog. On August 18, 2013 Plaintiff filed a Motion for Contempt regarding...