A neighborhood dispute over a missing Westie returned to court Friday, with a Benton County judge lifting an anti-harassment order but stopping short of making one couple reimburse another nearly $8,800.
Rascal's whereabouts still are unknown, one year and three months since he disappeared from his Rancho Reata home on Jurupa Street.
Gina Ellison claims her neighbors took the dog and moved away, while Lourdes Fernandez and Robert Levline insist they left the neighborhood because they were being accosted over two similar dogs they previously had adopted.
Superior Court Judge Cameron Mitchell said he understands Ellison and her husband Aric want their family's white terrier back, but the legal tactic they've taken so far isn't appropriate under Washington statute. If the Ellisons are "seeking to have property retrieved," civil action is the "appropriate avenue," he said.
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So more than three months after issuing the restraining order against Fernandez and Levline, Mitchell reversed his initial ruling. However, he couldn't decide if the husband and wife deserve to be paid their travel costs and attorney fees, noting that he earlier found Fernandez in contempt of court for misleading statements and refusing to answer his questions.
Mitchell gave attorneys two weeks to submit briefs before he makes his final ruling since "we are talking a substantial amount of money."
Rascal is an American Kennel Club certified Westie who is cherished by the Ellisons as a family pet.
Fernandez and Levline lived three homes down from the Ellisons. They took a liking to Rascal and reportedly would take him on their daily walks, let him play at their home when he escaped under the fence and feed him people food.
Gina Ellison says her three children sometimes would need to go to the neighbor's house to retrieve the dog. So when he went missing just before Easter 2009, Ellison suspected he was being held in their home. Her family waited for Rascal to be returned but that didn't happen.
Fernandez and Levline say the Ellisons didn't keep track of their dogs and would let them run around in the street at all times of day, according to their attorney, Jeremy Bishop. The couple adopted two of their own Westies last November but don't have Rascal, said Bishop, suggesting maybe he was caught by a coyote.
Rascal, who would have celebrated his 10th birthday this May, has a few characteristics that makes him easy to identify. He has a distinctive gait, an ear that appears torn but was deformed at birth and a defect in one eye.
Ellison had started to believe maybe Rascal had been killed when, 10 months after his disappearance, she and a friend saw the neighbors walking two Westies and instantly knew one of them was her dog.
"That dog was Rascal. It had the same characteristics," said lawyer Scott Johnson, who said the dog also recognized his client. "This wasn't some Westie, this was their Westie that they saw."
This reportedly led to a scuffle and a high-speed car ride through an orchard. No charges were filed against either side.
Bishop said Ellison harassed and accosted his clients, forcing them "to move from their home because of the case's volatile nature." They relocated in the Tri-Cities, though they also have a home in Arizona.
At a March hearing in Benton County Superior Court, Johnson said there is no doubt the couple have the Ellisons' dog and requested a protection order. He also asked to have Rascal returned.
Fernandez, who at the time was representing herself, said she never stole their dog and had proof the two Westies belonged to her. When asked by the judge where she was keeping the two dogs, she gave several responses and was found in contempt, before making a phone call and telling the court the dogs were with her mother-in-law on their way to Alabama.
Mitchell gave her one week to hand them over to Johnson for testing. But when Bishop -- now hired by Fernandez -- showed up at a Kennewick vet clinic with two dogs, Johnson said X-rays weren't needed to check for a healed broken leg because it was immediately obvious that neither Westie was Rascal.
Bishop then filed a motion with the court, asking Mitchell to terminate the anti-harassment order against his clients and reimburse attorney fees and other costs.
"In this case, essentially the whole thing was about, 'Did my clients take their dog or not?' " Bishop said Friday. "There is no allegation of harassment. I have never seen a harassment order where the harassment occurred in the year past."
An anti-harassment petition is not the way to seek return of an animal, Bishop added. The Ellisons' allegation is unfounded and as a result, Fernandez and Levline incurred substantial costs.
The couple should be reimbursed $8,768, Bishop said. That breaks down to $3,130 in travel costs and vet fees for them to bring the dogs back from Arizona for testing, $2,638 in other costs leading up to Friday's court hearing and $3,000 for the attorney.
Johnson argued that "the harassment continues to this day because they haven't returned the dog that they stole. ... They know where the dog is. They took the dog. And for whatever reason, they will not say where the dog is."
Johnson said he doesn't dispute that one of the couple's Westies was adopted by them, but said there is no proper certificate for the second because it was Rascal. He implied that a third dog was brought to the vet clinic for testing.
Johnson told the court that in no way should it award Fernandez and Levline "for bringing this other dog, for them trying to pull one over on the court."
Mitchell ruled that the matter was not appropriately filed as an anti-harassment issue when the Ellisons really just want their property back.
Mitchell also recognized that he previously told Fernandez she could return to court to request payback for her costs, but noted that Fernandez already had been served with this petition when she sent the dogs out of town with her mother-in-law. He questioned why she told the court the dogs were on their way to Alabama, yet brought them from Arizona when testing was ordered.
"The court's dilemma is how is this matter going to be ultimately resolved," Mitchell said. He will rule in a few weeks on whether Fernandez and Levline should get any money from the Ellisons.