In case you missed our webinar entitled "Top Three Things that Cause Equine Litigation and How to Avoid Them," you can still view the entire archived webinar which can be accessed by following this link.
If you did not previously register for the webinar, you should be able to access the webinar with the above link after filling out the quick registration questionnaire.
Have a great weekend!
Audrey White of the Texas Tribune authored this news story concerning the federal lawsuit over the Texas Puppy Mill Bill. The article reports that the Humane Society of the United States and the Texas Humane Legislation Network filed an amicus brief in the suit supporting the Bill.
The story contains a quote from a representative of the Humane Society’s Texas Branch, as well as some quotes from two breeders who are not involved in the lawsuit. Neither of the breeders quoted in the article expressed the due process concerns raised by the plaintiffs in the suit.
With respect to the plaintiffs, the article states, “calls to plaintiffs in the case were not immediately returned.”
Jim Smith, a cat breeder and one of the plaintiffs in the case, posted this response in the comments section of the online article this morning. According to Smith,
I am one of the plaintiffs in the Puppy Mill and Kitten Mill case. I was called by Ms. White and asked for comments, but I told her that because there was legal actions pending, I needed to clear things with my attorney first. He told me that there was no reason why I couldn’t address the issues, so I called Ms White back (several times), got no answer, and she never returned my call. I called her back within an hour or two of her call.
Mr. Smith went on to explain his due process concerns, saying,
There are several reasons why this is bad law. First and foremost, even a meth dealer or porn publisher is afforded more rights under Texas Law than a Kitten or Puppy Breeder. The law is written in such a way that agents from the Texas Department of Licensing and Regulations can enter my property, with or without me being present, enter my private residence, confiscate my computer, files or other property, or my animals simply on their own recognizance. They do not need a warrant, and there is no oversight by any actual law enforcement agency or court. Once they seize my animals or property, there is no appeals process developed for me to protest their actions. The TLDC can also employ "Third Party Inspectors", such as members of Animal Rights organizations to do these functions for it.
Smith also hinted that legislation of this nature could eventually effect the equine and ranching industries, stating,
HB 1451 is part of a nationwide push by animal rights organizations to deny us the ability to keep pets, have horses and ranching, rodeos and many other traditional Texas activities because it offends their vegetarian and vegan beliefs. It’s their attempt to enforce their personal and religious beliefs on the rest of us.
Horse breeders, what do you think of the new Puppy Mill Bill? I welcome you to post your thoughts and insights in the comments section to this post.
On December 6, 2012, we will be putting on a free equine law webinar for clients and potential clients involved in the horse industry. Details are below.
Title: Top Three Things That Cause Equine Litigation & How to Avoid Them
Date: Thursday, December 6, 2012
Time: 12:00PM to 1:00PM CST
Those who wish to participate should click on this link to pre-register: Pre-Register for Webinar
Photo: My husband Rick and I at Santa Anita for Breeders’ Cup 2012
Yesterday, the Fort Worth Court of Appeals reversed and rendered in part and affirmed in part the judgment of the 236th District Court of Tarrant County, Texas in Whitmire v. NCHA.
In the underlying suit, the jury returned a verdict for Lainie Whitmire for $70,000 in damages for breach of oral contract and $0 in damages on her false imprisonment claim. Lainie requested that the trial court enter judgment in accordance with the jury’s verdict and also requested attorneys’ fees for prevailing on her breach of contract claim.
On motion of the NCHA, the trial court entered a judgment notwitstanding the verdict (JNOV), holding that Lainie take nothing on her breach of oral agreement claim and awarding her no attorneys’ fees. The final judgment also ordered that the NCHA recover $302,000 in attorneys’ fees from Lainie and $45,000 in attorneys’ fees from her husband, Ray.
The Whitmires filed a timely notice of appeal.
A panel of the Fort Worth Court of Appeals, consisting of Dauphinot, Walker, and Gabriel, JJ., held on appeal that the trial court erred by disregarding the jury’s findings that the NCHA breached an oral agreement with Lainie and that Lainie sustained $70,000 in damages as a result. The court of appeals reversed that portion of the judgment and rendered judgment in favor of Lainie for $70,000.
The court of appeals also sustained the Whitmires’ issue on the NCHA’s attorneys’ fees, and modified the trial court’s judgment to delete the NCHA’s recovery of attorneys’ fees of $302,000 from Lainie and $45,000 from Ray. The court of appeals affirmed the remainder of the judgment.
Case Information: Whitmire v. National Cutting Horse Ass’n, No. 02-11-00170-CV, 2012 WL 4815413 (Tex. App.—Fort Worth, Oct. 11, 2012, no pet. h.).
Related post:
The constitutionality of the hotly-contested “Puppy Mill Bill” passed in the 2011 Texas Legislature has been challenged in a federal suit filed in Austin on October 1, 2012. A copy of the complaint can be downloaded here.
The new law, commonly referred to as the “Puppy Mill Bill”, was passed as HB 1451 and codified as Chapter 802 of the Texas Occupations Code . The title given to the codified act is “The Dog and Cat Breeders Act”. As part of the Act, the Texas legislature charged the Texas Department of Licensing and Regulation with the task of creating a regulatory and licensing scheme for dog and cat breeders in Texas. The rules related to the Act are set forth in Title 16, Texas Administrative Code, Chapter 91.
The plaintiffs in this week’s suit challenging the Act and related rules include Responsible Pet Owners’ Association Texas Outreach Inc.; Teresa Arnett, a Boston Terrier breeder in Rosansky; Sharleen Pelzl, a cat breeder in Dripping Springs; and James Smith, a cat breeder in Georgetown. The plaintiffs are represented by Steven Thornton of the firm of Westerburg & Thornton, P.C. in Dallas.
Could horse breeders be the next target of "Puppy Mill Bill" type legislation?
Included among the plaintiffs’ complaints about the “Puppy Mill Bill” and related rules are the following:
· The Act allows inspectors to enter breeders’ facilities without a warrant.
· The Act allows inspectors to enter the private residence of a breeder without first obtaining a warrant.
· The Act exempts dogs bred primarily to be used for purposes such as herding livestock, hunting, field trials, and other performance events. But the Act does not give a reason for a disparate treatment of breeders of different types of dogs, nor does it specify whether it is the intent of the breeder or the end purchaser that controls the analysis.
· The Rules allow applications for breeders’ licenses to be denied with no possibility of appeal.
· The Rules related to licensure of breeders require the successful completion of a “criminal background check.” However, the Rules do not specify what constitutes successful completion.
Animal cruelty and animal neglect have been illegal in the state of Texas for a long time. Some question why Act was even necessary, while others view the Act as nothing more than a vehicle to allow rescue groups (with the help of the authorities) to enter property of others and seize animals without a warrant. I believe that if such regulations are allowed to stand, it is only a matter of time before the animal welfare lobby will push for similar regulations applicable to horse breeders.
DVM News Magazine and others have expressed reservations about the “unintended consequences” of “puppy mill laws” passed in other states. And just this morning, some pure bred dogs were abandoned in a rural area near Flower Mound around 1:00 AM. Some have suggested that the “Puppy Mill Bill” is to blame because these new laws are so draconian that no commercial breeder is able to comply with them.
Updates will be posted as this case progresses.
Are your liability release contracts sufficient to sustain a successful motion for summary judgment? Texas courts generally hold releases of liability to fairly high standards. Release cases are very fact specific, and often come down to extremely technical points about the contents of the release document. As such, the proper drafting of these contracts is a must. A recent case gives us a glimpse into how Texas courts interpret liability releases.
A man by the name of Revel Thom decided to ride the mechanical bull while he was hanging out at Rebel’s Honky Tonk, a country bar on 5th Street in Austin. Before riding the bull, Mr. Thom signed a document entitled “PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK.” The release had Thom acknowledge the risks of riding the mechanical bull, disclose any pre-existing health conditions, and release and indemnify Rebel’s and related parties.
Unless you’re Ty Murray, don’t expect to stay on one of these things…especially if you’ve been drinking!
However, Mr. Thom failed to inform the mechanical bull operator that he had suffered from chronic back pain for four to five years requiring him to receive annual epidurals to numb the pain. Mr. Thom fractured his T-12 and L-1 vertebrae in his back as a result of being bucked off the mechanical bull. Thom subsequently sued Rebel’s Honky Tonk for his injuries.
The honky tonk filed a motion for traditional summary judgment, arguing that they conclusively established the affirmative defenses of release and assumption of the risk. The honky tonk also sought a no-evidence summary judgment on Thom’s claims of negligence and negligent supervision. The trial court granted the honky tonk’s motion for summary judgment without stating the basis for its ruling.
Overruling all of Thom’s points of error, the Austin Court of Appeals affirmed the trial court’s dismissal of Thom’s case on summary judgment.
The court of appeals found Thom’s argument that he did not read the release to be unconvincing, stating,
It is well established that one is presumed to know the contents of the contract that they are signing and are bound by its legal effects.
The court of appeals also found that the release language was sufficiently conspicuous, because the release was contained in a stand-alone document, was not written in minuscule font, and contained bolded and underlined warnings.
The language listing Rebel’s Honky Tonk and its “owners” as released parties was upheld by the court of appeals to be specific enough to release additional defendants Rainbow Cattle Company, Inc. (the honky tonk’s owner) and Zack Truesdell (Rainbow’s president). The court found the the case cited by Thom inapplicable, as the release at issue in that matter purported to release an “unlimited, general class of potential defendants.”
Hat tip to Nick Farr over at Abnormal Use for the heads up on this case.
Case Information:
Thom v. Rebel’s Honky Tonk, No. 03-11-00700-CV, 2012 WL 3793181 (Tex. App.—Austin, Aug. 30, 2012, no pet. h.)
Last Friday, the Supreme Court of Texas denied Brenda Young’s petition for review. The 14th Court of Appeals’ holding that Chapter 87 can immunize defendants against suits brought by independent contractors will stand.
The Court’s notice regarding the denial of the petition for review can be downloaded here.
The Supreme Court did not give a reason for denying the petition. One reason could have been that the Court found no reversible error in the 14th Court’s opinion. As such, the denial may be yet another indication that the Supreme Court agrees with me and other practitioners who believe Chapter 87 applies to suits brought by workers (both independent contractors and employees), subject to its exceptions.
As far as I know, no court of last resort in any state has ever taken up the issue of whether an equine or farm animal immunity statute applies to suits brought by workers.
Related Posts:
Young v. McKim Appealed to Supreme Court of Texas
Texas Supreme Court May Be Inclined to Grant Chapter 87 Immunity to Employers
Do you withhold payroll taxes from your farm help’s wages? A recent tax case illustrates the bad things than can happen when a horse business incorrectly calls its farm workers “independent contractors”, and fails to withhold payroll taxes from their wages.
Are your farm workers really independent contractors?
Case Background:
Twin Rivers Farm, Inc., a Tennessee S Corporation, was engaged in the business of raising, training, and showing horses for anticipated sale or lease.
Twin Rivers hired Adam Lopez Morales and Nallhelyo Ruiz (workers) to work on the property where it ran its horse business. Morales and Ruiz lived in a trailer on the property and did not pay rent during the three years at issue in the case.
Morales and Ruiz’s primary job duties included: cleaning stalls, the barn area, the barn offices, the restroom, and the tack room; grooming horses; watering the horses; and moving the horses between pastures. The workers also occasionally fixed fence and mowed. The equipment Morales and Ruiz used to perform their job duties was owned by Twin Rivers.
Twin Rivers paid both workers by check, with Morales receiving $300 per week, and Ruiz receiving $150 per week. With respect to the years at issue, Twin Rivers did not make deposits of employment tax, nor did it file Forms 1099 with respect to the workers.
Holding:
Over farm owner Diana Militana’s objections, the court found that Morales and Ruiz were employees of the farm and not independent contractors. As a result of the farm’s misclassification of the employees, the court found Militana liable for approximately $30,000 in unpaid employment taxes and penalties for a three year period.
Case Info:
Twin Rivers Farm, Inc. v. Commissioner; T.C. Memo 2012-184; Docket No. 14074-10 (July 2, 2012)
Related Posts:
Employee v. Independent Contractor: Pitfalls of Misclassification (Part 1)
Employee v. Independent Contractor: Pitfalls of Misclassification (Part 2)
A Lubbock County district court held that approximately 130 head of horses it allocated to the husband in a divorce action were worth $520,000. The husband disagreed.
The husband, Robert “Greg” Collier, objected to the court’s valuation at trial and in two separate appeals of the divorce decree. According to Greg, the trial court’s allocation of $520,000 worth of divorce assets to him in the form of the horses was an abuse of discretion, because the horses were actually worth far less than that amount. Despite Greg’s objections, the Amarillo Court of Appeals did not find that the trial court abused its discretion with respect to its valuation of the horses.
When the honeymoon’s over, can you prove the value of your horses with reasonable certainty?
According to the court of appeals, the trial court seems to have based its valuation on an "appraisement and inventory" proffered by the wife, Leanne Farrell Collier. Leanne alleged that Greg possessed "approximately" 130 head of quarter horses that could sell for between $200 at a livestock auction to $7,500, if sold privately with a little training put into the horse.
The trial court apparently multiplied the number of horses (130) by one of Leanne’s estimates of what the horses could be sold for ($4,000) to arrive at the $520,000 figure.
Though the court of appeals noted that Greg’s testimony was more specific and “would support a different valuation”, Greg’s testimony was similar to Leanne’s in that it was full of estimates and guesses. At the end of the day, the evidence Greg used to support his objections to Leanne’s valuation was not specific enough for the trial court.
Because neither party provided the trial court with specific information regarding the number of horses owned by Greg, the trial court was left in a position of assessing the credibility of the parties’ estimated values.
How could Greg have avoided this dilemma? The parties could have kept better books and records with respect to the number of horses owned by the couple and related business entities. Furthermore, Greg might have retained a professional equine appraiser to determine the true value of the herd. A well-researched independent third-party appraisal is typically given more weight than the estimates and guesses of interested parties.
Well-founded appraisals are invaluable not only in divorce matters, but in any lawsuit where a horse’s value is at issue.
Related Cases:
In the Matter of the Marriage of Leanne Farrell Collier and Robert Greg Collier and in the Interest of R.C.C., a Child, No. 07-12-00084-CV, 2012 WL 3762475 (Tex. App.—Amarillo, Aug. 30, 2012, no pet. h.)
In the Matter of the Marriage of Leanne Farrell Collier and Robert Greg Collier and in the Interest of R.C.C., a Child, No. 07-09-00146-CV, 2011 WL 13504 (Tex. App.—Amarillo, Jan. 4, 2011, no pet.)
Author’s Note: This post is purely editorial in nature. The views expressed in this post are 100% mine. I have not canvassed my clients or the other members of my firm to get their take on horse slaughter, nor do I intend to do so. My views are not necessarily the views of my clients, my firm, or the other lawyers who practice at my firm.
First off, I cannot express in words how much I detest the word “ban.” I dislike it so much that I wish Merriam-Webster would take it out of the dictionary. Why? Because “it ought to be banned!” has become the battle cry of the self-righteous busybodies, some of whom are multi-million dollar concerns, and others who are just individuals who have far too much spare time on their hands. The do-gooders who relish the phrase “it ought to be banned!” are known to meddle in other people’s business, usually with the goal of using our government to force their will upon us, their fellow citizens.
Photo: A horsemeat sandwich, as served by street vendors in Venice, Italy
Let’s for a moment put the word “ban” in perspective. Killing people is not “banned” in the United States. Our citizens may kill another person in self-defense. Police officers and members of our Armed Forces may kill people, and do so regularly. Similarly, the use and distribution of powerful, addictive narcotics is not “banned” in this country. Doctors administer and prescribe opioids and other powerful drugs daily. Yet some people think there out to be an outright “ban” on horse slaughter in this country.
The road to Hell is paved with good intentions. That’s about where we’re headed if our federal government kowtows to the radical powerful anti-horse-slaughter lobby, and enacts an outright prohibition of horse slaughter.
Unintended Consequences of the Closure of the U.S. Plants
To generally summarize this June 2011 Government Accountability Office report, the horse market tanked after the closure of the U.S. horse slaughter plants in 2007. The GAO gave multiple reasons for the decline—including the drought and the economy, but the cessation of domestic slaughter was clearly indicated as a factor in the report. Veterinarians surveyed by the GAO reported that horse welfare declined across the board, with a 50% or greater increase in abandonment and neglect cases in some states. The nationwide capacity of horse rescue facilities is about 6,000 head of horses, and the vast majority of these are already full. Legislative prohibitions on using federal funds for inspecting horses prior to slaughter impede USDA’s and APHIS’s ability to oversee the transport and welfare of U.S. horses intended for slaughter. The number of horses shipped to Mexico and Canada for slaughter increased by 660% and 148%, respectively, after the closure of the slaughter plants. This resulted in total distance travelled by slaughter horses to increase by approximately 200 miles. Once a horse crosses the border into Canada or Mexico, APHIS no longer has authority to oversee their welfare, and our laws related to the humane slaughter of animals no longer apply.
While some anti-slaughter advocates place blame on market forces and irresponsible owners, PETA generally agrees with the GAO’s conclusion that horse suffering has increased due to the closure of the slaughter plants. But what is PETA’s answer? “Let’s ban horse slaughter…and let’s also ban the export of horses to other countries for slaughter!” There is certainly a lot of banning going on with this seemingly untenable position.
Flawed Logic
I never understood why is it suddenly inhumane to slaughter a horse, but not other mammalian livestock such as a pig, cow, or sheep. One reason opponents give is that horses are "pampered", and are used to being treated as pets. Even if this were true of all horses, what of the FFA and 4-H show animals that go to slaughter each year? There is no outcry to ban the slaughter of these animals. Further, it is also puzzling to me that the majority of people who believe horse slaughter is barbaric support abortion in humans.
Fact: there is an unwanted horse problem in this country. There are simply some horses who are not adoptable—perhaps because they are dangerous, or perhaps because the cost to “repurpose” them and care for them throughout their life far outweighs their potential usefulness to humans. Some anti-horse-slaughter advocates outright deny the unwanted horse problem. They argue that virtually every horse is adoptable, and that the ones who are not adoptable should be euthanized by a veterinarian and disposed of properly. Some statistics on the high cost of euthanasia and proper disposal have been published here. In general, anti-slaughter advocates are short on pragmatic or realistic solutions to the unwanted horse problem.
If virtually all horses were adoptable, there would be no need for horse slaughter. The U.S. slaughtered approximately 105,000 horses in 2006, the last full year the Texas and Illinois plants were operational. See GAO report at 8. This is a manageable number, especially when you look at the amount of money that has been poured into the “horse slaughter ban” efforts. The Humane Society of the United States, which is just one of the many animal rights advocacy groups in this country, had approximately $150 million in revenue for 2010 alone. These numbers, on their face, seem to indicate that the HSUS could have, possibly single-handedly, rehomed those horses that were adoptable, and caused those that were not adoptable to be euthanized and properly disposed of. Meanwhile, the HSUS has paid lawyers and lobbyists untold amounts to promote its political agendas such as a federal ban on horse slaughter and horse export for slaughter.
According to this HSUS publication, horse slaughter was costly to taxpayers. But even if the slaughter companies paid all costs associated with horse slaughter through a fee-for-service program or the like, HSUS says it should still be banned. But the HSUS has not published estimated figures on what it would cost our taxpayers to enforce their proposed ban on the export of horses for slaughter. It is common knowledge that we cannot even control the movement of illegal immigrants or illegal drugs across our borders, and we’re spending millions of taxpayer dollars on those efforts. Also, the HSUS is silent on the amount of domestic revenue and jobs that were lost when the slaughterhouses shut their doors.
Obstacles to Re-Implementation of Horse Slaughter in the U.S.
If I were an investor looking to put up the capital to build a new horse slaughterhouse in this country, I would first determine solutions to the serious economic and political hurdles currently facing this industry in the United States. Namely,
· New European Union regulations that will become effective on July 31, 2013 will require all non-EU countries to provide lifetime medication records for all horses entering the EU food chain. Furthermore, horses that have been given certain commonly-used drugs, such as phenylbutazone, must be excluded from the EU food chain.
· The threat of domestic terrorism on the slaughter facilities by animal rights activists. If you do not believe this problem exists, a federal law was enacted to address the issue.
· The possibility of future legislative changes that may directly or indirectly hinder operations. The federal government has already pulled the rug out from under the slaughterhouses once. There’s no telling whether they’ll do it again.
· The ever-presence of the shrill, combative, mostly female anti-slaughter advocates who will stop at nothing to turn public opinion against the slaughterhouses, no matter where they decide to set up shop. If you do not believe these women exist, I urge you to do a Google search for “horse slaughter”, or check out some of the comments to this previous post. While the presence of these "hecklers" is really nothing more than an annoyance, the unwitting or naive in local communities sometimes give in to them—if for no other reason than to shut them up.
Conclusion
If the European Union no longer wants our horsemeat, and the Asian or South American demand is not enough to sustain the industry, the free market economy will bring an end to horse slaughter. The anti-slaughter advocates agree—indeed, this is the only real economic issue they have latched onto. But if this is something that will go away on its own, why do we need a ban? Your guess is as good as mine. I would think that given the amount of money and time the anti-slaughter camp has spent to bring about anti-slaughter legislation, they can’t stop now. It would be unthinkable to them that they threw away millions trying to force their will upon us, instead of using their time and money to save the adoptable horses that either died of neglect or were inhumanely butchered in Mexico as a result of their efforts.
It is a myth that horse suffering has decreased now that slaughter is no longer an option. I applaud organizations such as the self-sustaining equine sanctuaries and rescues, veterinary associations, and the Unwanted Horse Coalition for doing what they can to reduce the amount of unwanted horses. If we want to improve horse welfare, we should be spending our time and money helping these organizations help horses—not on political agendas.
And if we must regulate the industry, let’s keep regulating horse transportation and institute methods of humane slaughter such as those proposed by Temple Grandin for the cattle industry. But we can only control how horses are treated as long as we allow them to be slaughtered within our borders.
Jane Smiley, contributor to the New York Times Horse Racing Blog, may have put it best when she said:
We must recognize that there is a market for horse meat (not only for human consumption, but also for zoo and circus-animal consumption) and that in a starving world, a source of protein should not go to waste for sentimental reasons. It is sentimentality that has resulted in profounder cruelty to our horses – because we don’t accept that they are animals and have a utilitarian purpose, we hide from what happens to them, and so what happens to them happens in secret.
Related Posts: