Equine Case Law Digest 1998-2018

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Equine Case Law Digest 1998-2018

Third Edition

University of KentuckyOffice of Continuing Legal Education

Frank T. Becker

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USE OF THIS VOLUME

Seminars and publications of the University of Kentucky College of Law Office of Continuing Legal Education (UK/CLE) are designed to assist lawyers in maintaining their professional competence. The Office of Continuing Legal Education and its volunteer authors and speakers are not, by their participation in this publication, giving legal advice concerning any specific legal issue or problem, and their professional opinion with regard to legal or practical aspects of handling a specific issue or problem may change depending on the specific circumstances presented. Attorneys and others using information from UK/CLE publications or seminars must also fully research original and current sources of authority to prop-erly serve their clients’ legal interests. The forms and sample documents contained in continuing legal education publications are intended for use only in conjunction with the professional services and advice of licensed attorneys. The legal research discussed herein is believed to be accurate, but is not warranted to be so. All parties must cautiously consider whether a particular form or document is suited to specific needs. These materials may contain expressions of opinion which do not necessarily reflect the views of the Office of Continuing Legal Education, the University of Kentucky, the Commonwealth of Kentucky, or other governmental authorities.

Copyright 2018 by the University of Kentucky College of Law Office of Continuing Legal Education

All rights reserved.

This Monograph may be cited as:

Frank T. Becker, Equine Case Law Digest 1998-2018, 3d ed. § ______ (UK/CLE) (2018).

Printed in the United States of America.

ISBN 978-1-58757-197-8

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ABOUT UK/CLE

The University of Kentucky College of Law, Office of Continuing Legal Education (UK/CLE) was organized in 1973 as the first permanently staffed, full time continuing legal education program in the Commonwealth of Kentucky. It endures with the threefold purpose: 1) to assist lawyers in keeping abreast of changes in the law; 2) to develop and sustain practical lawyering skills; and 3) to maintain a high degree of professionalism in the practice of law. Revenues from seminar registrations and publication sales allow the Office to operate as a sepa-rately budgeted, self-supporting program of the College. No tax dollars or public funds are used in the operation of UK/CLE.

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Under SCR 3.663, allowing attorneys to receive up to six hours of con-tinuing legal education credit through the use of accredited technology products, UK/CLE has been offering an array of accredited “self-study” audio programs

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since 2002. These accredited technology CLE products are offered in streaming video and audio CD formats.

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An enormous debt is owed to the judges, law professors, and practitioners who generously donate their time and talent to continuing legal education. Their knowledge and experience are the fundamental ingredients for our seminars and publications. Without their motivation and freely given assistance in dedication to a distinguished profession, high quality continuing legal education would not exist.

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UNIVERSITY OF KENTUCKYCOLLEGE OF LAW

OFFICE OF CONTINUING LEGAL EDUCATION

Room 20 Law BuildingLexington, Kentucky 40506-0048

Phone (859) 257-2921Fax (859) 323-9790

http://www.ukcle.com

PRESIDENT, UNIVERSITY OF KENTUCKY Eli Capilouto

DEAN, COLLEGE OF LAW David A. Brennen

DIRECTOR OF CLE Kevin P. Bucknam

ASSISTANT DIRECTOR OF CLE Tracy J. Taylor

ADMINISTRATIVE/BUSINESS MANAGER Melinda Rawlings

TECHNICAL SERVICES MANAGER Benjamin J. Distler

EDITORIAL/MARKETING ASSISTANT Elizabeth M. Stewart

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UK/CLE: A SELF-SUPPORTING ENTITY

The University of Kentucky Office of Continuing Legal Education (UK/CLE) is an income-based office of the University of Kentucky College of Law. As such, it is separately budgeted and financially self-supporting. UK/CLE operations are similar to not-for-profit organizations, paying all direct expenses, salaries and overhead solely from revenues. No public funds or tax dollars are allocated to its budget. Revenues are obtained from registrant enrollment fees and the sale of publications. Our sole function is to provide professional development services. In the event surplus funds become available, they are utilized to offset deficits or retained in our budget to improve the quality and variety of services we provide.

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PREFACE AND ACKNOWLEDGMENTS

The University of Kentucky College of Law, Office of Continuing Legal Education (UK/CLE) has been the sponsor of the premier program on Equine Law in the United States since 1986, holding its annual National Equine Law Conference during the week prior to the running of the world-famous Kentucky Derby. The most comprehensive materials on the law of the equine industry have been made available at the Conference each year and in post-Conference sales of the course materials to the public.

UK/CLE has also in recent years served as the publisher of free-standing equine law materials. Those publications include the EquinE Law Forms CompEn-dium (2d ed. 2006) and the following monographs: D’Angelo, LEgaL aspECts oF staLLion managEmEnt and syndiCation (3d ed. 2017); Underwood, et al., LEgaL aspECts oF HorsE Farm opErations (4th ed. 2014); and Craigo & Husband, tax pLanning For HorsE ownErs and BrEEdErs (1st ed. 2008). The first edition of Becker’s EquinE CasE Law digEst was published in 2008 and covered 10 years of equine case law abstracts (1998-2008). The second edition was published in 2013 and covered 15 years (1998-2013). The third edition serves as UK/CLE’s most recent addition to a growing equine law library and has been updated and expanded and now includes equine case abstracts from 2013-2018.

In 1999, Frank T. Becker opened the 14th Annual National Conference on Equine Law with his review of significant equine cases from 1998-1999. Since that time, Frank has offered an annual update at the National Conference on Equine Law. To date, his contribution consists of over 1000 case law summaries organized by legal keyword. UK/CLE is pleased to offer all of Frank’s diligently researched material in one invaluable volume.

It is essential at the completion of any project to thank all of the individuals who contributed effort, time, and patience to the publication. The Editor extends her sincere appreciation to Frank T. Becker for his commitment to equine law and his continued support of UK/CLE. Our office appreciates Frank’s assistance in our efforts to bring quality legal publications and continuing legal education programs to members of the practicing Bar. A special thanks to Elizabeth Stewart, Editorial Assistant, is also necessary. Without her patience and dedication to formatting and reformatting this material, this book would not have been possible.

Editor: Tracy J. Taylor Assistant Director/Director of Publications Office of Continuing Legal Education University of Kentucky College of Law

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ABOUT THE AUTHOR

FRANK T. BECKER bases his practice in Lexington, Kentucky, where he is a solo practitioner and founder and manager of Equine Dispute Resolution, a medi-ation and arbitration service for the horse industry. He attended the University of Kentucky College of Law, where he served on the KEntuCKy Law JournaL, and graduated Order of the Coif and first in his class in 1979. He is a former Partner with Miller, Griffin & Marks, P.S.C. and Dinsmore & Shohl, LLP. Frank is also an experienced arbitrator and a member of the National Panel of Commercial Arbitrators of the American Arbitration Association; has served as past Chair of the Mediation Center of Kentucky; and pres ently is a hearing officer for the Human Rights Commission. He is the author of EquinE Law (2013) and is a regu-lar speaker at UK/CLE’s Annual National Conference on Equine Law.

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TABLE OF CONTENTS

Abuse or Neglect of Horses ................................................................................ 1Antitrust ............................................................................................................. 37Arbitration ......................................................................................................... 47Bankruptcy ........................................................................................................ 51Boarding and Training ..................................................................................... 61Breed Registries................................................................................................. 65Civil Procedure/Jurisdiction ............................................................................ 71Civil Rights ........................................................................................................ 85Constitutional Law...........................................................................................111Contracts .......................................................................................................... 115Defamation ....................................................................................................... 125Driving While Intoxicated .............................................................................. 131Expert Opinion ................................................................................................ 135Fiduciary Duties .............................................................................................. 139Hobby Loss ...................................................................................................... 147Immunity Issues .............................................................................................. 165Injury to Horse ................................................................................................ 169Insurance ......................................................................................................... 177Intellectual Property ....................................................................................... 187Intentional Infliction of Emotional Distress ................................................. 191Intertrack Wagering and Simulcasting ......................................................... 195Labor and Employment ................................................................................. 205Land Partition ................................................................................................. 209Land Use and Zoning...................................................................................... 213Personal Injury................................................................................................ 225Personal Injury: Collisions with Horses ..................................................... 301Personal Injury: Products Liability ............................................................. 319Private Associations ........................................................................................ 323Prosecutorial Misconduct ............................................................................... 327Racing............................................................................................................... 331Sale, Fraud, and Warranty Issues ................................................................. 401Sales and Ownership....................................................................................... 421Security Interests and Liens ........................................................................... 443

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Slaughterhouses............................................................................................... 455Statute of Limitations ..................................................................................... 459Syndications, Partnerships, and Business Organizations ........................... 463Taxation ............................................................................................................ 475Theft of Horses ................................................................................................ 489Ticket Scalping ................................................................................................ 493Trainers ............................................................................................................ 497Veterinarians ................................................................................................... 501Wild Horses ..................................................................................................... 517Workers’ Compensation ................................................................................. 525Table of Cases .................................................................................................. 535

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Abuse or Neglect of Horses

ABUSE OR NEGLECT OF HORSES

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Equine Case Law Digest

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2018

People v. Wilson, 2018 WL 1078593 (Cal. Ct. App. 2018)

Defendant appealed from her conviction for animal cruelty and animal neglect based on insufficient evidence. The court of appeals upheld the convictions because the evidence showed she failed to provide available palliative treatment for her horse’s autoimmune skin disease.

Wilkerson v. Lowndes County, 2018 WL 1309854 (N.D. Miss. 2018)

Animal control officers observed allegedly malnourished and diseased horses and after presenting an affidavit and testimony to a court, obtained a seizure order. A subsequent hearing resulted in the return of the horses to the owner. The owner sued the officers for violating his constitutional rights, alleging that the affidavit for the order contained false information and told an incomplete story, and that they obtained the seizure order as retaliation in violation of the First Amendment.

The court granted qualified immunity to the defendants on summary judgment. Although the affidavit was not entirely accurate, there was sufficient evidence presented to obtain the seizure order. The court also held that the observing of some emaciated animals justified seizure of the entire group of animals.

With regard to the retaliation claim, the court held the matter in abeyance pending the U.S. Supreme Court’s decision in Lozman v. City of Riviera Beach, which will decide the issue of whether probable cause operates as an absolute defense to a retaliation claim.

2017

Central Park Sightseeing, LLC v. New Yorkers for Clean, Livable & Safe Streets, Inc., 157 A.D.3d 28 (N.Y. App. Div. 2017)

Organized protesters attempted to leaflet and disrupt the carriage rides in Cen-tral Park. The carriage company sought and obtained a preliminary injunction against the more aggressive behavior, including blocking the carriages and yelling at customers. The protesters challenged the injunction as violating their First Amendment rights. The appellate division upheld the injunction, except for the portion prohibiting leafleting in the area.

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Roth v. Com., 2017 WL 4570565 (Ky. Ct. App. 2017)

Roth purchased four horses for his girlfriend, who became his ex-girlfriend. Although they were housed on Roth’s farm, Roth gave two of the horses to Johnhetta Burke, and hired Burke to take care of all four horses. Roth was inexperienced with horses. When animal control agents were called and found the horses to be very underweight, Roth was charged with animal cruelty. He was convicted by a jury, and his motion for a directed verdict of acquittal was denied. His appeal to the circuit court resulted in affirmation of his conviction.

On discretionary review to the Kentucky Court of Appeals, the court reviewed the evidence and reversed the conviction. It reasoned:

In the instant case, the Commonwealth had to prove that Roth acted with a more culpable mens rea than the actors in Mitchell and Ison. Roth had to have, at minimum, acted wantonly, by being “aware of and consciously disregard[ing] a substantial and unjustifiable risk that the result will occur or that the circumstance exists.” KRS 501.020(3). Having reviewed the proof the Commonwealth presented at trial, we hold that it was clearly unreasonable for a jury to find Roth acted wantonly or intentionally. Roth hired Burke to care for the horses. He paid for their food. He paid for their veterinary visits. He provided Burke with access to hundreds of bales of hay. He provided the horses with 20 acres of land upon which to graze. He provided multiple sheltering options for the horses. And he did all this in spite of the fact that he owned none of the horses – two of them belonged to his ex-girlfriend, and two of them belonged to Burke – and in spite of the fact that he was severely disabled by a serious motor-vehicle accident.

Wolff v. Indiana, 87 N.E.3d 528 (Ind. Ct. App. 2017)

Wolff was arrested for animal cruelty and his animals were impounded. He posted a bond for his arrest release. After a hearing, the court ordered the animals to be disposed of by the state authorities, a process that could be avoided by the posting of a bond for the cost of care. Wolff appealed, but his argument that the arrest bond should have also served as the bond for the horses was rejected.

2016

Adams v. State of Texas, 2016 WL 6809220 (Tex. App. 2016)

Adams was convicted of animal cruelty after animal control officers found emaciated and dead horses on her property. On appeal, she challenged the

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jury verdict based on several procedural irregularities. The court upheld the conviction, holding that the irregularities were inconsequential.

Hatlee v. Olds, 665 F. App’x 695 (10th Cir. 2016)

Horses at Echo Valley Ranch appeared malnourished, resulting in a letter from the Sheriff’s office. After a news story and public outcry about the horses, and at the urging of veterinarian Ashleigh Olds, the Sheriff’s office seized the horses without a warrant (although after the seizure it unsuccessfully applied for a warrant). The owners of the ranch were charged with animal cruelty, but the evidence from the warranty search was suppressed, and the owners were acquitted.

The unsuccessfully prosecuted owners then sued Dr. Olds, and others, for vio-lating their civil rights under § 1983. The trial court granted Dr. Olds summary judgment because there was no evidence she was acting under color of state law. The court of appeals affirmed. It held that urging state officials to take action did not constitute state action.

Muzyka v. Texas, 2016 WL 552482 (Tex. App. 2016)

Horses were found to be malnourished and several had to be euthanized. Owner was convicted of cruelty to livestock. He appealed based on lack of evidence of intent. The court upheld the conviction because intent can be gleaned from circumstances, in this case being the severe condition of the horses.

Oregon v. Voyles, 382 P.3d 583 (Or. Ct. App. 2016)

After a complaint about Voyles’ neglect of horses, a deputy sheriff obtained a warrant to search Voyles’ farm and seize horses there. But the sheriff also searched two other farms, owned by third parties, where some of Voyles’ horses were located. The owners of those farms granted permission for the search, and the sheriff seized Voyles’ horses from those farms. Partially based on the condition of those horses, Voyles was convicted of animal neglect.

On appeal Voyles argued that the warrantless search of the other farms, and the seizure of the horses, violated her rights under Oregon’s version of the Fourth Amendment and therefore the evidence should have been suppressed. The court of appeals rejected the argument that a warrant was necessary for the search, because the landowners had given permission. However, the court agreed that the seizure of the horses without a warrant was improper, as Voyles retained a property right interest in the horses even though they were boarded by third parties. The conviction on some counts was reversed and remanded.

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People v. Harris, 405 P.3d 361 (Colo. App. 2016)

Employee of the Humane Society, a nonprofit organization, investigated a complaint and observed emaciated horses on Harris’ property. They obtained a search warrant and found deceased and underfed horses on the property. Harris was charged and convicted of animal cruelty.

On appeal Harris argued that the evidence should have been suppressed as being obtained by an unauthorized search warrant. The court of appeals agreed that the statue did not authorize an employee of a nonprofit organization to obtain a search warrant. However, the exclusionary rule was not applicable because the warrant itself was proper as there was probable cause to issue it. Harris also argued that the counts on which she was convicted were duplicative, contending that abuse to all horses must be considered together as a single crime. The court of appeals rejected this argument, holding that each animal was a separate “unit of prosecution.”

Harris also complained that the trial court excluded photographs of her healthy animals. The court of appeals agreed that there was some relevance to such evidence, but had no additional probative value because other evidence to that effect had been admitted.

People v. Slater, 2016 Il. App. 2d 140343-U (Ill. App. Ct. 2016)

Defendant was convicted of animal neglect after malnourished animals, includ-ing horses, were found on her property. On appeal she asserted, among other things, that the jury should have been instructed that she intended to neglect the animals rather than just knowingly neglect the animals. The court rejected that assertion, and upheld her conviction.

State v. Robertson, 2016 WL 3177010 (Ct. Crim. App. Tenn. 2016)

Defendant appealed his conviction for cruelty to animals because it was not a “lesser included offense” of “aggravated cruelty to animals,” for which he was indicted. The court reversed, because aggravated cruelty to animals was a crime directed to companion animals, which did not include horses, whereas cruelty to animals was a crime which included horses.

Westmore v. Hyde, 2016 WL 2642254 (W.D. Wisc. 2016)

After a complaint, a sheriff went to the Westmores’ property and observed neglected horses and a donkey. He returned with a couple of veterinarians, and without a warrant entered the property. The horses were seized and the

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donkey was euthanized. The criminal charges were settled, and the surviving animals returned to the Westmores.

The Westmores sued those involved for various violations of their constitutional rights. After discovery, the defendants moved for summary judgment. The court denied summary judgment on the Fourth Amendment claim, holding that neither the asserted defense that they received permission to enter the property nor the “exigent circumstances” defense were sufficiently established. With respect to the claim that the animals were unlawfully seized, the court denied summary judgment because the seizure may have been the fruit of the poten-tially unlawful warrantless entry. The court also denied summary judgment on the claim that Mrs. Westmore was restrained with excessive force when they were euthanizing the donkey. The court granted summary judgment to the county, under the Monell doctrine that for a municipality to be liable under § 1983, the municipality had to have been engaged in a practice or habit of violations, or indifference to constitutional rights.

2015

Bickford v. State, 25 N.E.3d 1275 (Ind. Ct. App. 2015)

When officials determined that Bickford’s horses were malnourished, Bick-ford voluntarily gave them up to Horse Rescue South. Bickford pled guilty to charges of animal cruelty, and was ordered to pay restitution for the cost of care of the horses. On appeal Bickford challenged the restitution order as unauthorized under the Indiana statute as they were voluntarily surrendered and thus not “impounded.” The court agreed but nevertheless upheld the restitution order as generally authorized under Indiana law.

Burnell v. Marin Humane Soc’y, 2015 WL 6746818 (N.D. Cal. 2015)

Humane Society seized the Burnell’s horses after determining they were malnourished and unhealthy. The Burnells sued those involved, including the humane society and state hearing officer, for violation of civil rights under § 1983. The original complaint was dismissed but an amended complaint was filed in an effort to properly state a claim. The defendants again moved to dismiss.

The Burnells alleged that they were subject to double jeopardy because both a forfeiture procedure and criminal procedure were commenced. The court held that that did not constitute double jeopardy because a forfeiture proceeding does not determine guilt.

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The Burnells also alleged that the costs assessed for keeping the horses were excessive and thus violated the Eighth Amendment. The court held that the assessment of costs did not constitute an excessive fine.

The Burnells argued that the seizure of the horses violated the Fourth Amend-ment because the seizure was not based on reasonable grounds. The court held that the amended complaint stated a claim.

The court addressed whether the Humane Society officers were acting under color of state law. The court determined that they were not directly involved in the seizure of the horses, and therefore they were not. The Humane Society itself, however, could be alleged to be acting under the color of state law with regard to its role in the seizure.

Contender Farms, LLP v. USDA, 779 F.3d 258 (5th Cir. 2015)

Tennessee Walking Horse organizations sued the USDA to challenge the recently-promulgated regulations requiring Horse Industry Organizations to impose mandatory suspensions on participants who engage in soring. The court concluded that there was a justiciable controversy and that the plaintiffs had standing. The court then held that the USDA’s intrusive steps into the Organization’s private schemes was not authorized by the Horse Protection Act and thus its regulations were invalid. The court determined that the HPA authorized a private horse inspection system, but did not authorize the USDA to require private parties to impose government-mandated suspensions as an arm of HPA enforcement.

Gonzalez v. Royalton Equine Veterinary Services, 7 N.Y.S.3d 756 (N.Y. App. Div. 2015)

Owner’s horse and three dogs were seized by the SPCA pursuant to a warrant. The horse and dogs were adopted. The former owner sued for replevin for their return, contending that the SPCA never brought a forfeiture action. The court rejected that position, holding that such an action was unnecessary as the statute provided that the SPCA was authorized to put the animals up for adoption unless they were redeemed within the proscribed period.

Nebraska v. Jensen, 2015 WL 7261420 (Nebr. Ct. App. 2015)

Jensen was convicted of intentional abuse of his herd of horses. The evidence showed that some horses were very thin, and some had died. The court of appeals held there was sufficient evidence of intentionally causing the horses to decline in condition and die. It noted: “Despite the horses’ declining health and the passage of time, Jensen failed to adequately feed, water, or provide

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necessary care to his horses. After viewing this evidence in the light most favorable to the prosecution, we conclude that a rational finder of fact could have found that Jensen knew his horses needed care and by failing to provide it, intended the reasonably probable result of poor health and death.”

People v. Lee, 41 N.E.3d 994 (Il. App. Ct. 2015)

Lee was convicted of aggravated animal cruelty based on the deplorable condition of his horses. The court of appeals held that sufficient evidence supported the conviction, but that an instruction for the lesser included offense of violation of an owner’s duty should have been given to the jury. It therefore reversed and remanded for a new trial.

Sickel v. State, 636 P.3d 115 (Alaska Ct. App. 2015)

Robin Sickel, a co-owner of a horse that had to be euthanized due to neglect, was convicted by a jury of animal neglect under an Alaska statute which makes it a crime if a person “with criminal negligence fails to care for an animal” and that failure leads to the animal’s death or pain. She appealed on the basis that the statute failed to specify who has the duty that requires the prevention of harm. The court held that because the statute failed to specify who had such a duty, that the common-law provides guidance. It observed that the common law provided that “a duty of care can arise by contract or agreement, or by any other voluntary assumption of care.” The court agreed that solely having the status of an owner does not necessarily give rise to such a duty. Given that, Sickel complained that the jury was never so instructed. The court agreed, but held that the closing arguments made it clear that the jury had to find there was a duty as the common law defined it.

Vince v. Com., 2015 WL 674709 (Va. Ct. App. 2015)

Vince was convicted of animal cruelty after authorities found an injured horse on her property. On appeal she asserted that it was improper for the govern-ment’s expert to have been allowed to testify as to the ultimate issue of fact and to remain in the courtroom to hear evidence. The court of appeals upheld the conviction, holding that the expert did not testify as to the ultimate issue, and that remaining in the courtroom was harmless error.

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2014

Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012), 2013 WL 203418 (W.D. Okla. 2013), aff’d, 777 F.3d 1073 (10th Cir. 2014)

Owner’s horses were seized and court required bond for maintenance cost as condition of not forfeiting horses. No bond was posted and horses were forfeited.

Owner subsequently brought a § 1983 action for wrongful forfeiture of the horses and for Fourth Amendment violations. The court of appeals held that the forfeiture action barred because it was part of state court proceeding. It reversed as to the Fourth Amendment claims, holding that such an action was not barred because did not depend on state court proceeding.

On remand, the district court dismissed the Fourth Amendment claims based on the doctrine of issue preclusion, as the state court had determined that probable cause existed to issue the search warrant.

The Tenth Circuit affirmed, noting that the constitutional question could have been raised in the forfeiture proceeding, and the decision in that proceeding was a final decision on the merits.

In re Brehmer, 428 S.W.3d 920 (Tex. App. 2014)

Owner’s horses were seized pursuant to a warrant. After finding that the realtor had cruelly treated his animals, the justice court ordered the horses sold. The owner sought mandamus to contest jurisdiction because the court missed the deadline. However, the appeals court ruled that the deadlines were procedural, not jurisdictional, and denied the writ.

People v. Adcock, 2014 WL 3845047 (Ill. App. Ct. 2014)

Horse owner was convicted of animal neglect and ordered to pay restitution. On appeal he challenged the right of the court to order restitution, relying on a prior case that held that an animal cannot be a victim entitled to restitution. The court noted that the ruling in that case had been reversed by statute, and thus affirmed the restitution order.

People v. Koy, 13 N.E.3d 1260 (Ill. App. Ct. 2014)

Horse owner was charged with felony counts for cruelty and neglect of horses. The state petitioned for forfeiture of her eight horses. The trial court granted the petition because the state proved the necessary elements by a preponderance of the evidence, the statutory standard.

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On appeal, the horse owner challenged the constitutionality of the state forfei-ture statute because it only required proof by preponderance of the evidence. The court concluded that a forfeiture proceeding under the statute was not a criminal proceeding, and thus no Sixth Amendment right to a jury trial existed. The statute concerned the welfare of the animal, not the defendant.

Pharis v. State, 2014 WL 2740367 (Tex. App. 2014)

Sheriff went to farm and found defendant and eight dead horses. The horse owner was convicted of cruelty. The conviction was upheld on appeal as being supported by sufficient evidence based on the appearance of the horses and defendant’s background as veterinary assistant.

State v. Beaudet, 326 P.3d 1101 (Mont. 2014)

Horse owner was convicted of animal cruelty for neglecting horses she kept in her trailer. She received a 30-day sentence and an order forfeiting the horses and to pay restitution. Her challenge to the sentence was rejected on appeal.

State v. Fessenden, 333 P.3d 278 (Or. 2014)

Having received a tip, the sheriff drove up to Fessenden’s farm, and observed that a horse was extremely emaciated. With the help of volunteers, he had the horse transported to a veterinarian and then to a rehabilitation facility. Fessen-den was charged with animal neglect, and subsequently convicted.

Fessenden sought to overturn her conviction contending that the seizure of the horse without a warrant was unconstitutional, and thus the evidence should have been suppressed. She contended that the “emergency aid” exception for warrantless seizure did not apply to horses, only to humans. The court rejected that contention, although in Oregon that exception had previously only been applied to humans. Further, the evidence from the suppression hearing showed that the exception was properly applied. The sheriff had evaluated thousands of horses in his career, and reasonably determined that this horse was in immediate need of medical care. State v. Fessenden, 310 P.3d 1163 (Or. Ct. App. 2013).

On appeal to the Oregon Supreme Court, the defendant argued that Oregon law considers animals to be property, and recognizes that protection of animal life is not treated with the same respect as human life, and thus the emergency aid exception should not apply. The court agreed. But the court noted that the “exigent circumstances” exception was not limited to circumstances where human life was threatened. The court held that the evidence justified the appli-cation of the “exigent circumstances” exception because it was clear a crime

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was being committed. It thus affirmed the courts below. It declined to decide whether the “emergency aid” exception applied to animals.

State v. Leachman, 2014 WL 4090165 (Mon. 2014)

Horse owner was convicted of five counts of animal cruelty. The verdict was upheld on appeal because there was sufficient evidence that the legbands he attached injured the horses.

State v. Markley, 2014 WL 5577352 (Wash. Ct. App. 2014)

Horse owner was convicted of animal cruelty, a crime requiring criminal negligence, after his horse was found emaciated. On appeal he argued that the evidence was insufficient because he lacked experience with dietary needs of horses. The court of appeals rejected that argument because criminal negli-gence is measured by an objective “reasonable person” standard and not on an individual person to person basis.

State v. Morgan, 14 N.E.3d 452 (Ohio Ct. App. 2014)

After execution of a search warrant issued to the deputy dog warden, horses were seized and the owner was convicted of animal cruelty. The owner had sought to suppress evidence on the basis that the deputy was not qualified to apply for a search warrant. The court denied the motion, and the court of appeals affirmed. It held that the necessary credentials had been presented to the trial court, and, regardless, any error would have been a “non-fundamen-tal” technical violation that would not justify invoking the exclusion rule. The court of appeals further found that he verdict was supported by sufficient evidence, given the evidence of the extreme thinness of the horses and the opinion testimony of the investigators.

2013

Collier v. New Mexico Livestock Bd., 316 P.3d 195 (N.M. Ct. App. 2013)

Collier was criminally charged with animal abuse, based on his use of “hob-bling” while trimming a horse’s hooves. The New Mexico criminal statute provided an exception for engaging in a “commonly accepted agricultural animal husbandry practice.” If there was a dispute about that, the Livestock Board was to hold a hearing. No procedures for obtaining that hearing were provided. Collier filed a mandamus action because the Board did not provide

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a hearing. The trial court dismissed on several grounds, including failure to file a motion with the criminal trial court to request such a hearing.

On appeal the court recognized that the issue was one of first impression and that the statute gave no explicit guidance. However, it held that the proper procedure was to file a motion with the criminal trial court.

Daniel v. Stump, 2013 WL 3184771 (W. Va. 2013)

Elderly farm owner had her horses seized when they were determined to have been neglected. She contested the jurisdiction of the court to issue an order. The court rejected the contention because the court that was designated to issue such an order did not have exclusive jurisdiction.

Frye v. County of Butte, 164 Cal. Rptr. 3d 928 (Cal. Ct. App. 2013)

Horse owners sued for writ of possession after administrative hearing sustained the emergency seizure of their horses. A portion of the appeal was dismissed for failure to timely file a notice of appeal from an order. With respect to the remaining claims, the court denied the petition on the basis that there was sufficient evidence that “very prompt action” was needed and a post-seizure hearing was afforded.

Harnish v. Liberty Farm Equine Reproduction Center, LLC, 2013 WL 3233243 (N.D. Ind. 2013), 2013 WL 440182 (N.D. Ind. 2013)

Owners of mares infected with CEM sued farm that collected the semen, where the infection resulted. They sought to pierce of corporate veil with respect to liability of the individuals. The court determined that the issue was a matter of equity for the court, and deferred the determination until after a jury trial on the merits. It granted summary judgment with respect to claims of negligent supervision and hiring, and violation of privacy.

In the later ruling the court excluded the Kentucky Department of Agriculture official as a witness because plaintiffs failed to disclose the witness in their Rule 26 disclosures.

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Kanciper v. Suffolk County Soc’y for the Prevention of Cruelty to Animals, 722 F.23d 88 (2d Cir. 2013) and Kanciper v. Lato, 2013 WL 5963080 (E.D.N.Y. 2013)

The SPCA received complaints about the treatment of horses and dogs on the Kanciper’s farm. It obtained and executed search warrants. The conviction was reversed.

Kanciper sued the SPCA in state court. He also sued in federal court under § 1983 for civil rights violations. The district court dismissed the federal case on the basis of impermissible claim-splitting.

The court of appeals reversed, holding that the claim-splitting theory did not apply.

In the second suit Kanciper sued the district attorneys for their role in creating the affidavits to obtain a search warrant, alleging civil rights violations. The district attorneys moved to dismiss on the basis of immunity. The court held that the claim to the extent it alleges wrongful participation in the obtaining of warrants was barred by the defense of absolute immunity. With regard to the allegations based on the participation in the search and seizure, the district attorneys did not have absolute immunity, but may have qualified immunity, although he court did not dismiss those claims on a Rule 12 motion.

Kankey v. State, 2013 WL 458000 (Ark. Ct. App. 2013)

Sheriff seized 116 horses. After a hearing, the owner was divested of them. The attempted appeal was dismissed because even though the appeal was filed in time, the certified record was not filed in time.

Martin v. Gorajec, 2013 WL 319783 (S.D. Ind. 2013)

Martin was a horse breeder who became executive director of the Indiana Thoroughbred Breeders Association. An acrimonious relationship developed between Martin and members of the Indiana Racing Commission. An inves-tigation was launched into Martin’s alleged mistreatment of horses. He was absolved of wrongdoing but brought a complaint for conspiracy and defama-tion. The court granted summary judgment on the claims.

People v. Lohnes, 976 N.Y.S.2d 719 (N.Y. App. Div. 2013)

Lohnes was convicted of cruelty to a companion animal after he broke into a barn and stabbed a horse to death. On appeal he contested whether the horse

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was a companion animal. The court reviewed the statutory definition and held that a horse not raised for commercial purposes fit the definition.

Schulz v. Genregske, 2013 WL 136230 (E.D. Mich. 2013)

Horse owner brought a civil rights claim under 42 USC § 1983 against animal control officers for seizure of her horses and dogs. With regard to the claim of an illegal search, the court granted the defendants summary judgment because the animal owner did not reside at the premises searched, and thus did not have standing. With regard to the claim for procedural due process, the court denied summary judgment because the post-seizure procedures mandated by state law were not followed.

State v. Dicke, 310 P.3d 1170 (Or. Ct. App. 2013)

Dicke was charged with animal abuse under the same facts as the charge in State v. Fessenden, 310 P.3d 1163 (Or. Ct. App. 2013). His conviction was upheld on the same basis.

State v. Dokken, 2013 WL 4711131 (Minn. Ct. App. 2013)

Neglected horses were found by police in a barn, and the caretaker of the horses was prosecuted and convicted of animal abuse. The appeals court affirmed the convictions as being supported by substantial evidence. Further it was irrelevant that no showing was made that the defendant owned the horses; a showing of involvement in the care of the horses was sufficient.

State v. Ibrahim, 2013 WL 195516 (Kan. Ct. App. 2013)

Horse owner was convicted of animal cruelty after a bench trial. The court of appeals upheld the conviction as supported by sufficient evidence. The defendant asserted that a conviction required a showing of proof of specific intent. The court rejected that argument, that the animal cruelty statute was a general intent crime. The court further upheld the assessment of costs against the defendant.

State v. Peterson, 301 P.3d 1060 (Wash. Ct. App. 2013)

Horse owner was convicted of animal cruelty and ordered to reimburse county for costs incurred in caring for seized horses. On appeal owner claimed that the animal cruelty statute was void for vagueness. The court held that the term “unjustifiable physical pain” gave fair warning as to prohibited conduct. The court also rejected the assertion that the owner could not be guilty because the

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horses were neglected due to the owner’s financial struggles. The court held that the crime does not require intent, as criminal neglect suffices. Finally, the court rejected the claim that restitution was an improper part of her sentence, because the statute specifically permits it.

Terry v. State, 2013 WL 1859342 (Tex. App. 2013)

Horse owner was convicted of animal cruelty based on observations of animal control officers. The conviction was upheld as being sufficiently supported by the evidence.

2012

Duncan v. State, 975 N.E.2d 838 (Ind. Ct. App. 2012)

Horse owner was convicted of animal cruelty after a bench trial. On appeal, he challenged the constitutionality of Indiana’s statute, claiming it was vague. The court upheld the conviction and rejected the challenge because it was clear that the horses had been neglected.

Emmerick v. Wisconsin, 2012 WL 1135930 (W.D. Wis. 2012)

Horse owner was charged but after three trials was not convicted of animal cruelty. He sued Wisconsin and state officials for seizing his horses. The court dismissed the claim against the state on 11th Amendment immunity grounds. With respect to the claims against individuals, the court held that a warrantless seizure was not a constitutional violation as long as there was an adequate post-deprivation procedure to remedy the loss of the property. Because there was such a procedure in Wisconsin, there was no constitutional violation.

Erie County Soc’y for Prevention of Cruelty to Animals v. Hoskins, 946 N.Y.S.2d 365 (N.Y. App. Div. 2012)

Court award of expenses of keeping horses seized from owner were upheld as reasonable.

Moser v. Pennsylvania Soc’y for the Prevention of Cruelty to Animals, 2012 WL 4932046 (E.D. Pa. 2012)

Horse owner sued Pennsylvania SPCA under 42 USC § 1983 for violating her Fourth Amendment rights when searching the farm and seizing a mare without a warrant. On summary judgment, the trial court ruled that the defendants had

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probable cause and that there was a good faith belief that an exigency existed due to the observed condition of the mare. Significant to the court was the efforts a defendant went to to attempt to contact the mare owner. The owner also claimed that her Fourteenth Amendment rights were violated because no hearing was held with respect to the seizure. The court dismissed that claim because post-seizure hearing rights were available and the owner did not take advantage of them.

People v. Cleaves, 2012 WL 2136171 (Cal. Ct. App. 2012)

Defendants were convicted of animal cruelty and were ordered to pay $54,000 restitution as a condition of probation. The court of appeals reversed, holding that enforcement of a judgment imposed in a civil matter cannot be a condition of probation.

Painter v. Ellerly, 2012 WL 2092376 (Cal. Ct. App. 2012)

Animal control officers seized 17 horses that appeared neglected. Owner con-tended that he was entitled to a pre-seizure hearing rather than a post-seizure hearing because 8 days transpired between the notice of seizure and the actual removal of the horses. The court held that the post-seizure procedure was appropriate because the delay was occasioned by bad weather.

Show, Inc. v. U.S. Sec’y of Agriculture, 2012 WL 2796568 (N.D. Tex. 2012)

The USDA promulgated new rules concerning liability of organizers of horse shows for “soring.” An organizer of shows sued and sought a TRO to prohibit the regulations from going into effect, contending that they violated the Horse Protection Act. The court disagreed, holding they were likely within the reg-ulatory authority of the USDA, and denied the TRO.

State v. Gruntz, 273 P.3d 183 (Or. Ct. App. 2012)

Based on an affidavit of a sheriff, who purported to have experience with horses, a magistrate issued a search warrant. In a criminal prosecution for animal neglect, the evidence was suppressed because the court believed there was insufficient evidence of animal neglect to justify a search warrant. On appeal, the court of appeals disagreed. It stated that the affidavit could have justified the magistrate’s conclusion, and thus the warrant should not have been determined to be improper.

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State v. Stanton, 2012 WL 76906 (Tenn. Crim. App. 2012)

After being convicted of animal neglect, defendant sought diversion. Diver-sion was denied, a finding that was upheld on appeal. However, the court emphasized that the failure of a defendant to admit wrongdoing cannot be a basis for denying diversion.

2011

Back v. USDA, 2011 WL 4056319 (6th Cir. 2011)

Horse owner and trainer were disciplined by APHIS for “soring” a Tennessee Walking Horse. The ALJ dismissed the complaint, holding that the method of determining soring – digital palpation – did not prove to be reliable and was excluded under Daubert. APHIS appealed to a Judicial Officer, who accepted the methodology and fined the owner and trainer. The Sixth Circuit affirmed, holding that the methodology had been determined to be an accepted meth-odology even under post-Daubert.

Bloom v. Miami-Dade County, 816 F. Supp. 2d 1265 (S.D. Fl. 2011)

Bloom’s animals were seized, and he was arrested and prosecuted, for animal cruelty. He brought a civil rights action against the arresting officers. The dis-trict court dismissed the action based on qualified immunity and the existence of probable cause to arrest.

Diamond State Ins. Co. v. Deardorff, 2011 WL 1459018 (E.D. Cal. 2011)

Deardorff boarded horses for clients, and in the course of transporting the horses to a show, a fire in the trailer resulted in the death of the horses. Deardorff was alerted to the smoke while driving on the interstate, but did not stop to put out the fire until he was able to exit. At that point it was too late. The mortality insurers brought a subrogation claim against Deardorff.

Deardorff moved for summary judgment. The court first granted summary judgment on the basis of the 1-year “boarding” statute of limitations, holding that the transporting of the horses in this instance was part of the boarding operation. The court also stated that the claims were barred by releases signed by the horse owners, which releases were broad enough to preclude negligence claims. The exception for gross negligence was inapplicable, the court ruled, because no reasonable juror could find that gross negligence occurred by delay in pulling over to deal with the fire.

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Jenkins v. State, 262 P.3d 552 (Wyo. 2011)

Horse owner was charged and convicted of animal cruelty. On appeal he argued ineffective assistance of counsel. The court held that his counsel’s failure to object to questions about his other horses was not ineffective assistance of counsel.

Leachman v. Hernandez, 2011 WL 2559837 (Mont. 2011)

The state brought neglect charges against horse owner and judge ordered the horses removed. The horse owner sued the judge in federal court for violating his constitutional rights. The federal court dismissed the case on the basis of judicial immunity.

Mahnke v. Garrigan, 2011 WL 1985550 (7th Cir. 2011)

Sheriff seized horses that appeared to him to be neglected. The owner was charged with animal neglect, but the charges were dismissed. However, the sheriff counterclaimed for the cost of keeping the horses, and the trial court determined that because there was probable cause to seize the horses, the costs were recoverable. On appeal, the court of appeals reversed, finding there was no probable cause.

The owner sued in federal court for constitutional violations. The district court held that the sheriff had qualified immunity. On appeal, the court of appeals affirmed on the basis that the sheriff did have probable cause to seize the horses, and the state court determination did not constitute issue preclusion on that matter with respect to the sheriff.

Matus v. State, 2011 WL 1166383 (Tex. App. 2011)

Matus was convicted of intentionally failing to provide necessary care for his horse. On appeal the court ruled that sufficient evidence existed to support the conviction. The court ruled that the element of mens rea could be met merely from the condition of the horse.

Miller v. State, 952 N.E.2d 292 (Ind. Ct. App. 2011)

Miller’s horses were seized when they were observed to be too skinny, and he was subsequently convicted of animal abuse. On appeal, he challenged his conviction on the basis of insufficiency of evidence, maintaining that skinny horses are not necessarily abused or neglected horses. The court upheld the conviction based on the jury’s right to weigh conflicting evidence.

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People v. Kriple, 2011 WL 3759926 (Cal. Ct. App. 2011)

Horse owner challenged his conviction for animal cruelty on grounds of inef-fective assistance of counsel and other grounds. The conviction was upheld.

People v. Proehl, 2011 WL 2021940 (Mich. Ct. App. 2011)

Proehl was convicted of animal cruelty after officials determined his horses were severely malnourished. On appeal, he challenged his conviction on sev-eral grounds, including the assertion that he was an “animal hoarder”, which is a “psychological condition” that mitigated his intent. He even pointed to an unenacted Michigan bill that contained a provision defining the condition. The court rejected this defense, stating the bill had not become law, and even if it had, it was not a defense to animal cruelty.

Pointon v. State, 2011 WL 6260863 (Tex. App. 2011)

Horse owner was convicted of animal neglect. On appeal she challenged the sufficiency of the evidence, particularly arguing that there was no evidence as to the condition of the horses when she acquired them. The court held that the extensive testimony about the condition was sufficient to sustain the conviction.

Silver v. State, 23 A.3d 867 (Md. 2011)

Defendants were convicted of one count of animal cruelty relating to a dead horse. As a condition of probation, the trial court ordered them to pay restitu-tion for the state’s care of other horses. On appeal, although the court upheld the convictions, it held that the order requiring restitution for the other horses was invalid.

State v. Meduna, 794 N.W.2d 160 (Neb. Ct. App. 2011)

Ranch owner was convicted of animal cruelty when feral horses and burros acquired by him were discovered to be in poor condition. On appeal, ranch owner argued that evidence should have been suppressed as the search went beyond the scope of the warrant. The court rejected this argument on the basis of the open fields’ doctrine and the plain view doctrine. The court also rejected the contention that the expert called by the state was unqualified under Daubert.

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Tabor v. State, 344 S.W.3d 853 (Mo. Ct. App. 2011)

Defendant’s conviction for animal cruelty was appealed on the basis of inef-fective assistance of counsel. The appeals court affirmed the conviction, stating that the criticized actions at trial were reasonable.

2010

Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 989 A.2d 1075 (Conn. App. Ct. 2010)

Mare owner claimed clinic was negligent in turning out mare with another horse, which kicked the mare and injured her. A bench trial resulted in a finding of no negligence, and a judgment on the counterclaim for attorney fees based on the “hold harmless” clause in the boarding agreement. The appeals court upheld the judgment, finding that the hold harmless clause was enforceable because both parties were commercial enterprises. The clause did not violate public policy because horse breeding does not involve an essential public service.

Dunham v. Kootnai County, 2010 WL 556803 (D. Idaho 2010)

Horse owner, acquitted of animal cruelty, sued animal control officers for violating his Fourth Amendment rights when they searched the farm where his horses resided and seized the horses. The court determined that based on the open fields doctrine, the plaintiff did not have an expectation of privacy. In so doing, the court rejected as a matter of law that the doctrine of “curti-lage” applied. With regard to the seizure, the “plain view doctrine” permitted the seizure without a warrant. The court also rejected the claim for malicious prosecution and other claims.

Equus Sanctuary v. City of Los Angeles, 2010 WL 1882075 (Cal. Ct. App. 2010)

County agents seized horses from horse rescue organization. An administrative hearing resulted in a finding that the actions were proper. The organization’s suit was dismissed for failure to timely appeal from the administrative decision.

People v. Peters, 911 N.Y.S.2d 719 (N.Y. App. Div. 2010)

Veterinarian was convicted of animal cruelty based on malnourished condition of a foal. The court reversed the conviction as not being based on sufficient evidence, as a “pot belly” on a foal can be indicative of pneumonia as well as malnourishment.

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Phillips v. North Carolina State University, 697 S.E.2d 433 (N.C. Ct. App. 2010)

Mare died while being transported by a facility operated by N.C. State. Necropsy revealed that the horse died from heat stress. Horse owner brought a claim under the N.C. Tort Claims Act. The Commission awarded owner $50,000, largely based on loss of value, but did not award damages based on loss of breeding potential. In the initial appeal, the court of appeals reversed and remanded to the Commission to make a finding on such damages. (2009 WL 2371088).

On remand, the Commission awarded the value of one breeding season as consequential damages. Both sides appealed. The court of appeals upheld the decision, stating that the future breeding profit of a breeding animal is inherent in the present market value of the animal, but lost profits should be awarded for the reasonable time required to replace the animal.

Sullivan v. Com., 2010 WL 152062 (Va. Ct. App. 2010)

Horse owner was convicted of failure to provide an animal emergency vet-erinary treatment. On appeal, she argued that there was no proof she, as a layperson, had a belief the horse needed emergency treatment, despite the testimony of experts that the horse did need such treatment. The court rejected that argument, holding that even if the statute required proof of such subjective belief, that there was sufficient evidence to infer she had that belief.

Trexler v. Giese, 2010 WL 3220080 (D.S.C. 2010)

The Trexlers’ horses were seized and they sued almost everyone involved under 28 USC § 1983 under various theories. The court refused to grant the Humane Society defendants’ motion to dismiss, holding that their conspiracy to seize the Trexlers’ horses with knowledge of facts that would exonerate the Trexlers stated a claim, despite the state’s charitable immunity statute.

Vos v. Cordray, 719 F. Supp. 2d 832 (N.D. Ohio 2010)

Horse owner alleged that the search of his property and taking of his horses violated his constitutional rights. He brought a § 1983 action against all manner of defendants. The court dismissed the action for a variety of reasons, includ-ing immunity under the Eleventh Amendment as to officials in their official capacities, prosecutorial and judicial immunity, and, as to the humane society, not acting under color of state law.

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2009

Brown v. State, 292 S.W.3d 288 (Ark. 2009)

Brown was convicted of animal cruelty and ordered to pay restitution to the local humane society that had received and cared for his horses. On appeal, Brown challenged the restitution order, asserting that the humane society was not a “victim” under the restitution statute. The court of appeals held that the humane society was a “victim” as the term is used in the statute, thus the restitution order was affirmed.

Com. v. Pina, 907 N.E.2d 681, 2009 WL 1635311 (Mass. App. Ct. 2009)

Defendant was convicted of animal cruelty. On appeal, she argued that the jury was wrongfully allowed to convict based on failure to provide “necessary sustenance” to her horses, arguing that “necessary sustenance” means failure to feed, not failure to provide veterinary care (which she could not afford). The court of appeals rejected this argument because there was sufficient evidence that defendant failed to provide adequate food.

Cunmulaj v. Chaney, 2009 WL 349753 (Mich. Ct. App. 2009)

Plaintiffs sued Michigan State University’s veterinary hospital for negligence and breach of implied contract for injuring their horse. Summary judgment in favor of the defendants was upheld on appeal for plaintiff’s failure to comply with Michigan’s requirement that notice be filed within one year for a claim against the state.

In re 8 Horses and 22 Dogs, 297 S.W.3d 125 (Mo. Ct. App. 2009)

Animal owners appealed from a lower court judgment awarding custody of their horses and dogs to the local humane society. The court held that the evidence of neglect was not sufficient to show the abuse necessary for a stat-utory right to take animals without notice or a hearing. The court criticized the poorly-drafted statute.

In re Hamilton, 400 B.R. 696 (E.D. Ark. 2009)

Wife was awarded horses in divorce decree, with horses to be cared for by the husband until she obtained them. The husband stopped feeding the horses, and they became malnourished; some of them died. The husband field bankruptcy, but was denied discharge for the damages. On appeal, the issue was whether

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the bankruptcy court properly valued the horses, accepting the wife’s testi-mony over the husband’s testimony that they had nominal value based on the purchase price for the horses. The court held that the bankruptcy court did not err in accepting the wife’s testimony as to value.

LaPlace v. Briere, 962 A.2d 1139 (N.J. Super. App. Div. 2009)

Plaintiff’s horse was stabled at defendant’s facility. The horse died after being exercised, including lunging, by someone at that facility that may not have been authorized to exercise the horse. Plaintiff sued the defendant facility for conversion and negligence. The trial court granted summary judgment to the defendant. The court of appeals affirmed. It first held that there was no conversion, as the exercise of the horse was not a significant interference with the plaintiff’s ownership rights. The court also held that although there was a bailment, which shifted the burden of proving lack of negligence to the defendant, the defendant satisfied the burden by showing that it did nothing negligent that caused the death. The court held also that the burdenshifting rule did not make sense in this instance because plaintiff was in the best position to determine the cause of death by having a necropsy ordered, which plaintiff had declined to do.

People v. Henderson, 765 N.W.2d 619 (Mich. Ct. App. 2009)

Henderson owned 69 horses that were boarded at a ranch. An investigation revealed they were severely malnourished. The prosecution charged Henderson with felony counts of animal cruelty. The district court dismissed the counts, and the prosecution appealed.

The appeals court held that Henderson could be charged with animal cruelty even though he was not the caretaker of the horses. A criminal charge of an-imal cruelty can be based on conscious disregard of the cruelty, rather than just intent, according to the court of appeals. There was sufficient evidence of such conscious disregard, and thus the felony charges were reinstated.

Reams v. Irvin, 561 F.3d 1258 (Ga. Ct. App. 2009)

Reams’ horses were seized by Georgia officials, in accordance with the Georgia Humane Care for Equines Act, after a veterinary inspection revealed they were being deprived of food and water. While subsequent administrative proceedings were occurring, Reams sued the officials under 42 USC § 1983 for violating her due process rights. The district court held that no constitutional violation occurred, and thus the officials were entitled to qualified immunity.

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On appeal, Reams argued that the lack of a predeprivation hearing violated due process. The court of appeals disagreed. It held that the Georgia Act pro-vided adequate safeguards. Although deprivation of property without a prior hearing typically violates due process, under the Georgia Act the risk of a wrongful deprivation was low, and procedural safeguards were adequate given the possibility of further harm. It noted that the state’s interest in preventing inhumane treatment of animals is undeniably substantial.

State v. Almendarez, 301 S.W.3d 886 2009 (Tex. App. 2009)

Horse owner’s horses were confiscated based on a warrant for animal cruelty. A hearing resulted in a finding that the owner had not provided one of the horses with food and water, and the horse was ordered divested. Later, a criminal complaint was brought. The trial court dismissed the charge as double jeopardy. The appellate court reversed, holding that the initial proceeding was civil, not criminal, in nature, and therefore the double jeopardy clause did not apply.

Zayat Stables, LLC v. NYRA, Inc., 2009 WL 4021182 (N.Y. Sup. Ct. 2009)

Zayat Stables’ horse was injured in a Saratoga race when the head starter allegedly opened the start gate too soon. Zayat sued NYRA for negligence as a result of the carelessness of the start crew. NYRA moved for summary judgment on the basis of assumption of risk. The court noted that Zayat was an experienced professional owner of Thoroughbred race horses, and thus “as a professional is presumed to have a greater understanding of the dangers involved.” In opposing the motion, Zayat argued that Zayat had not assumed the risk of the crew’s negligence, and supported its opposition with an expert opinion. The court rejected the expert opinion because it was based on hear-say and evidence not in the record. Moreover, the court held that despite the alleged negligence, a horse taking off unexpectedly is an inherent danger in Thoroughbred horse racing. The court thus granted summary judgment.

2008

Baxter v. State, 891 N.E.2d 110 (Ind. Ct. App. 2008)

Based on a tip that four horses were dead and left rotting in the mud, animal control officers went to Baxter’s residence. When they arrived, they saw several other horses in very poor condition. They called the local humane society to have them confiscated and placed in foster care. Baxter was later convicted for failing to dispose of dead animals and for animal neglect.

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On appeal, Baxter argued that the law requiring disposal of dead animals was unconstitutionally vague. The appeals court rejected that argument. He also argued that the seizure of the animals, and the refusal to return them while charges were pending, was wrongful. The court rejected that argument because the authorities followed the procedure in the Indiana statute. The court also rejected the claim that evidence should have been suppressed because the search and seizure were conducted without a warrant. Finally, the court held that there was sufficient evidence of neglect to support the convictions for neglect, except with regard to the dead horses because there was no evidence of the cause of their deaths.

Dickerson v. USDA, 546 F.3d 335 (6th Cir. 2008)

Herbert Dickerson and Jill Dickerson were charged with transporting a “sored” horse and entering a “sored” horse in a horse show, in violation of the Horse Protection Act. They did not own the horse. The show had an “Operating Agreement” with the USDA as to sanctions that would be imposed for soring. The ALJ found that Herbert Dickerson violated the act by entering the sored horse, but dismissed the claims against Jill.

On appeal to the Judicial Officer, the JO found that both Dickersons violated the Act, suspending and fining them beyond the sanctions imposed by the show. On appeal, the Sixth Circuit upheld the JO’s determinations. It found there was substantial evidence the Herbert Dickerson was responsible for transporting the horse while sore, and that Jill was liable because an “implied partnership” existed between them. It also affirmed their liability for entering the sored horse, even though they did not perform most of the entry functions (Jill signed a check for the entry fee). The Sixth Circuit also held that the sanctions issued under the Operating Agreement did not preclude the harsher sanctions by the USDA (APHIS) because the Operating Agreement specifically reserved the authority of APHIS to prosecute.

Lacy v. USDA, 278 F. App’x 616 (6th Cir. 2008)

Lacy entered a horse named MARK OF BUCK in a Tennessee Walking Horse show. The “Designated Qualified Persons” working at the show examined MARK OF BUCK and determined that the horse had been “sored” in violation of the Horse Protection Act. The USDA’s veterinarians examined the horse and confirmed that the horse had been sored. The horse was transported to a private veterinarian, who determined that the symptoms were a result of the West Nile Virus.

Disciplinary action was brought against Lacy by the USDA. The ALJ deter-mined that the presumption that the horse had been sored had been overcome by

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the evidence from the veterinarian that the symptoms were a result of the West Nile Virus. The JO reversed, and imposed a civil penalty and disqualification.

Lacy appealed. After stating that the standard of review on appeal was one of “substantial evidence”, the court affirmed the JO. It held that the JO properly rejected the rebutting evidence, and appropriately relied on affidavits. It upheld the JO even though the USDA veterinarians never testified at the hearing.

People v. Mitchell, 2008 WL 4927324 (Mich. Ct. App. 2008)

Larry Mitchell was tried along with his wife and convicted of cruelty to horses. The evidence was overwhelming that his wife owned the horses, and he had no ownership in, or responsibility for, the horses. His conviction was based on liability as part of a “marriage partnership.” The court of appeals reversed, holding that conviction can only be based on ownership, and liability cannot be imposed through a marital relationship.

Saffran v. Fairfield Equine Associates, PC, 2008 WL 4044682 (Conn. Super. Ct. 2008)

Saffran transferred his horse to veterinary clinic. He delayed in responding to communication from the clinic, and did not pick up the horse. The clinic informed him that it intended to euthanize the horse under Connecticut’s aban-doned horses statute. The court enjoined this action because the owner was in contact with the clinic and thus had not abandoned the horse.

State v. Martin, 662 S.E.2d 406 (S.C. 2008)

Horse owners had their horses confiscated for alleged neglect. They were convicted of animal cruelty with regard to some of the horses. However, they asserted that they were entitled to an immediate hearing following seizure of the horses. The appeals court agreed. They also claimed the horses which were not the subject of their convictions should have been returned. The court remand-ed for a determination of whether the owners could now care for the horses.

2007

Allen v. Pennsylvania Soc’y for the Prevention of Cruelty to Animals, 488 F. Supp. 2d 450 (M.D. Pa. 2007)

Farmer engaged in neglected horse rehabilitation had horses seized after a search conducted pursuant to a warrant and was charged with cruelty. Initial charges were dismissed, and his conviction on reinstated charges was reversed

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based on double jeopardy. He sued in a § 1983 action for constitutional rights violations based on the seizure of the horses and the meritless prosecution. The federal court ruled that he stated a proper § 1983 action based on the search because the state agents acted under color of state law, and the warrant may have been issued without probable cause. However, the claims relating to the retention of the horses were dismissed, because the farmer could not establish a property right in the horses as a result of the state court ruling.

Bennett v. USDA, 219 F. App’x 441 (6th Cir. 2007)

Under the Horse Protection Act, an entrant in a horse show is required to allow a reasonably-conducted inspection of a horse to determine if the horse is “sore.” Trainer of champion Tennessee Walking Horse refused to allow a USDA veterinarian to continue to inspect the horse prior to a show because he believed the inspection was being improperly conducted. The USDA lodged a complaint against the trainer, but the ALJ ruled for the trainer. The Judicial Officer reversed, holding that the subjective intent of the trainer that the inspection was unreasonable was not a sufficient reason to prohibit the inspection. The Sixth Circuit agreed, holding that the USDA’s interpretation of the statute was not unreasonable.

Jackson v. Placer County, 2007 WL 1429827 (E.D. Cal. 2007)

Horse owner’s horses were seized by animal control officers after warrant was issued. Horse owner, although she pled guilty to animal neglect, sued for violation of her constitutional rights, and for conversion and other state law claims. The court granted summary judgment to defendants on some claims, but held that certain claims for violating due process survived. Also, certain defendants were not entitled to qualified immunity.

Mahnke v. Columbia County, 2007 WL 1300731 (Wisc. Ct. App. 2007)

Horses were seized by sheriff after appearing to be emaciated. Judgment against the owner was reversed on appeal because the sheriff did not have reasonable cause to seize the horses. The sheriff was not sufficiently skilled to determine if the emaciated condition was a result of disease as opposed to neglect.

State v. Wood, 2007 WL 1892483 (N.C. Ct. App. 2007)

Conviction of horse owner for cruelty upheld based on evidence of witnesses describing distressed condition of horse.

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Turner v. USDA, 217 F. App’x 462 (6th Cir. 2007)

Veterinarians determined that horse was “sore” in violation of the Horse Pro-tection Act. After a hearing, the ALJ dismissed the claims, largely because the veterinarian’s paperwork was faulty. On appeal to the Judicial Officer, the JO reversed the AU. The decision was upheld by the Sixth Circuit, which determined that substantial evidence existed despite the sloppy documentation.

Zahnd v. Secretary of the Dep’t of Agriculture, 479 F.3d 767 (11th Cir. 2007)

Veterinarians determined that horse in show was “sore” based largely on observations of the horse’s movement. At the hearing, the ALJ dismissed the charge because the presumption of soreness was rebutted by the explanations of the horse owner. On appeal, the Judicial Officer reversed and, largely relying on his own experience with horses, ruled that a violation had occurred. The Eleventh Circuit was very skeptical of the JO’s basis, but did not reverse it due to the great deference given an administrative hearing officer.

2006

McConnell v. USDA, 198 F. App’x 418 (6th Cir. 2006)

Horse owners challenged Department of Agriculture’s administrative finding that owners violated the Federal Horse Protection Act by shipping and pre-senting for showing a “sore” horse. The Sixth Circuit reviewed the evidence and determined that the administrative finding was supported by substantial evidence. The owners also complained that the industry suspension precluded enforcement by the USDA. The court rejected that argument.

Panetta v. Crowley, 460 F.3d 388 (2d Cir. 2006)

Police officer arrested horse owner for cruelty to animals based on an opinion from two lay observers who purported to be knowledgeable about horses, one of which purported to be associated with the local humane society. The charges were dismissed when it was determined that the horse’s condition was normal for a horse that age. The owner sued the officer under 42 USC § 1983 for false arrest and was awarded a nominal judgment at trial. On appeal, the court reversed and held that the officer had probable cause to arrest because of the officer’s reliance on the lay witnesses, even though the officer ignored the explanation from the owner concerning the horse’s appearance and that the horse was under veterinary care.

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State v. Dixon, 2006 WL 1120688 (Ohio Ct. App. 2006)

Dixon was convicted of animal cruelty when authorities determined that her horse was in poor condition and unlikely to survive. On appeal she claimed that the court erred in admitting lay opinion testimony that the horse had not been properly fed. The appeals court upheld the convictions, holding that the opinion evidence of the lay witnesses was admissible because it was based on observed facts.

2005

Gabriel v. Lovewell, 164 S.W.3d 835 (Tex. App. 2005)

Horse owner Lovewell boarded a horse at Ron Gabriel’s farm. The horse contracted colitis X and died at a veterinary clinic shortly after delivery to the clinic. Lovewell sued Gabriel for negligence of horse for alleged oversights. Lovewell presented no expert testimony. Instead, he presented the statement of the veterinarian at the clinic supposedly made to him that if the horse had been brought in sooner it might have been saved. Gabriel presented expert testimony that his actions were not the proximate cause of the death of the horse. The jury’s verdict was for the owner, Lovewell.

On appeal, the court of appeals upheld the verdict. It stated that the admission of the hearsay statement was proper because it related to some cross-exam-ination about the conversation with the veterinarian at the clinic. It held that the evidence, although hearsay, was sufficient to support the verdict, despite expert testimony to the contrary.

McClendon v. Story County Sheriff’s Office, 403 F.3d 510 (8th Cir. 2005)

Animal control officers seized horses pursuant to a warrant allowing the seizure of ill horses. Owner of the horses sued under 28 USC § 1983 for violating her Fourth Amendment rights, asserting that the seizure of all horses exceeded the scope of the warrant.

The Eight Circuit held that no constitutional rights were violated because the officers relied on the opinion of a veterinarian that all the horses were in danger. Thus, the officers were entitled to qualified immunity.

State v. Ziemann, 705 N.W.2d 59 (Neb. Ct. App. 2005)

Woman was convicted of cruelty and neglect of animals after sheriffs seized emaciated horses on farmland not owned by the woman. She appealed her

31


conviction on the basis that the seizures were unconstitutional and the evi-dence should therefore have been suppressed. The court of appeals affirmed the conviction, holding that the defendant’s expectation of privacy was very low on open land, and thus the search did not violate the Fourth Amendment.

Zobel v. Burrell, 167 S.W.3d 688 (Mo. 2005)

Zobel’s allegedly emaciated and malnourished horses were seized by the sher-iff’s deputies pursuant to a search warrant. Zobel challenged the authorizing statute as unconstitutionally vague. However, the statue was upheld as consti-tutional because “abuse” and “neglect” were defined sufficiently by the statute.

2004

Hegarty v. Addison Co. Humane Soc’y, 848 A.2d 1139 (Vt. 2004)

Horse owner challenged the summary procedure for seizing an apparently mistreated horse as unconstitutional and a conversion of property. The Vermont Supreme Court rejected the challenge, because the deprivation of property in such fashion was necessitated by quick action, and the deprivation was neither lengthy nor severe, and sufficient safeguards existed to address the risk of an erroneous deprivation.

People v. Fennel, 677 N.W.2d 66 (Mich. Ct. App. 2004)

Defendant started a fire when he launched fireworks at neighbor’s horse barn. The fire killed several horses and defendant was convicted of animal cruelty. He challenged the conviction on appeal on the grounds that he did not have the intent to injure the horses, and thus did not act in a “willful” manner. The court rejected that argument, because the statute was a general intent crime and the defendant did intend to scare the animals.

Washington v. Zawistowski, 82 P.2d 698 (Wash. Ct. App. 2004)

Owners housed horse in a paddock with little vegetation or suitable food, and were charged by the humane society with animal cruelty. A jury trial resulted in a conviction. The conviction was overturned on appeal based on insufficient evidence that the horse suffered pain. The court of appeals of Washington reinstated the convictions, however, because there was testimony from which the jury could have concluded that the horse experienced pain.

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2003

McCloy v. USDA, 351 F.3d 447 (2003)

A horse named MISSY was entered in a Tennessee Walking Horse show after the trainer, unbeknownst to the owner, had the horse sored. The USDA, however, charged and fined the owner for having entered a horse while sored, which the USDA perceived to be a violation of the Horse Protection Act. The owner challenged the reasonableness of the action, but the Tenth Circuit ruled that the USDA’s interpretation of the statute was reasonable, even though it put a heavy burden on owners.

Spencer v. Placer Co. Animal Control, 2003 WL 1562600 (Cal. Ct. App. 2003)

Twenty-eight horses were seized from Spencer by animal control officers on the basis that they were malnourished and prompt action was needed to protect the horses. Spencer claimed that the statute which allowed this seizure was unconstitutional in failing to place the burden on the government. The court held that the statute did place the burden on the government, and thus was constitutional. Further, the government met that burden.

2002

Mahan v. State, 51 P.3d 962 (Alaska Ct. App. 2002)

Mahan kept horses and other animals on her property. She was convicted of cruelty to animals, and her sentence required her to make restitution. She argued that the restitution amount should be reduced by the amount of donations made by others to help the animals. The court rejected that request.

Pennington v. Penner, 207 F. Supp. 2d 1225 (D. Kansas 2002)

Pennington was subject to an investigation for cruelty to horses by Penner, an animal control officer in Kansas. He was eventually arrested and his horses were seized. Pennington sued the county attorney, Thuston, and the county for violating his civil rights.

Thuston and the county contended on a motion to dismiss that he had qualified and absolute immunity. The court held that the decision of Thuston to prose-cute was protected by absolute immunity. However, Pennington claimed that because Thuston went onto the property to investigate, his immunity did not extend to his role as an investigator. The court held, though, that the investi-

33


gation was insignificant to the decision to prosecute. The county was likewise dismissed because it was not a proper party.

State v. Nance, 562 S.E.2d 557 (N.C. Ct. App. 2002)

Carolyn Nance was found guilty of six counts of cruelty to animals. Before the trial, she made a motion to suppress, asserting that the animal control offi-cer’s seizure of six horses owned by her were seized in violation of her Fourth Amendment rights. The trial court denied the motion to suppress.

On appeal, the North Carolina court of appeals stated that the animal control officer’s viewing of the horses in a field did not violate the Fourth Amendment, because the horses were kept in an open paddock and were visible to anyone outside of the fence. However, the Fourth Amendment did not permit the animal control officer to enter the property and seize the horses without first securing a warrant. Although the animal control officer noted that the horses were in a terrible condition, that did not justify the seizure of the animals when sufficient time was available to obtain a warrant. The court rejected the notion that an open paddock was an accessible area, and rejected the notion that the need to seize evidence outweighed the defendant’s rights under the Fourth Amendment.

2001

American Horse Protection Ass’n v. Veneman, 200 F.R.D. 153 (D. D.C. 2001)

The District Court permitted the Show Horse Support Fund to intervene in the AHPA’s suit challenging the USDA’s “Horse Protection Operating Plan.”

Siebert v. Severino, 256 F.3d 648 (7th Cir. 2001)

Horse owners’ suit under 42 USC § 1983 against humane investigator, with the Illinois Department of Agriculture, was dismissed by the district court. The horse owners alleged that the search of the fenced-in paddock, turn-out area, and barn without a search warrant violated their constitutional rights. The Seventh Circuit reversed, holding that the owners had a legitimate expectation of privacy in these areas. The court further held that the investigator was not entitled to qualified immunity. The warrantless seizure of the horses was also determined to be unconstitutional.

34


State v. Ross, 2001 WL 506568 (Minn. Ct. App. 2001)

Defendant appealed from a misdemeanor conviction of mistreatment of animals for failing to provide necessary food to horses under her charge or control. Defendant challenged the sufficiency of the evidence to prove that she had “charge or control” of the horses and the district court’s evidentiary rulings that excluded a photograph and a portion of her proposed testimony. Because the evidence supported the jury’s determination that Ross had charge or control of the horses and because the exclusion of the photograph and the limitation on Ross’s testimony were within the district court’s discretion, the conviction was affirmed.

State v. Wells, 629 N.W.2d 346 (Iowa 2001)

The court ruled that the defendant could not be convicted of multiple counts of livestock neglect based on “uninterrupted neglect to multiple head of livestock.”

2000

Lykins v. State, 726 N.E.2d 1265 (Ind. Ct. App. 2000)

Horse owner was charged with neglect, and defended on the basis he could not obtain hay; thus could not have the requisite intent. The jury rejected the defense and convicted him, which verdict was upheld on appeal.

Nadeau v. La Pointe, 272 A.D.2d 769 (N.Y. App. Div. 2000)

A criminal complaint was lodged against horse owners, after the town super-visor was notified that horses in a field appeared to be without food and water. The criminal charges were dismissed, and the accused sued the town supervisor for malicious prosecution. The court ruled the that type of dismissal agreed to by the accused barred a malicious prosecution suit.

Ohio v. Payne, 2000 WL 1902205 (Ohio Ct. App. 2000)

Guilty plea of woman accused of cruelty to horses was reversed because the judge failed to advise her of her right to trial by jury.

Rosenthal v. Texas, 2000 WL 34414977 (Tex. App. 2000)

Rosenthal was convicted of allowing horses to run at large within city limits. He challenged the conviction on the basis that there was no evidence that

35


he intentionally allowed his horses to run free. The court ruled that the city ordinance did not require that this act be intentional.

36


37

Antitrust

ANTITRUST

38


39

Antitrust

2017

Confederacion Hipica De Puerto Rico, Inc. v. Confederacion de Jinetes Puertorriquenos, Inc., 2017 WL 5197224 ___ F. Supp. 3d ___ (D.P.R. 2017)

Jockeys, belonging to a jockey association, engaged in a strike for higher mount fees. The owners and tracks sued for violation of the Sherman Antitrust Act on the basis that the strike was a “concerted refusal to deal.” They sought a preliminary injunction against the strike. The jockeys asserted that they were not subject to the antitrust laws because they acted as a labor union.

The court rejected the jockey’s argument and granted the injunction. It held that the jockeys were independent contractors, thus were not acting as a labor union. Thus, there was a high likelihood that the plaintiffs would succeed on the merits.

2015

Abraham & Veneklasen Joint Venture v. American Quarter Horse Ass’n, 776 F.3d 321 (10th Cir. 2015)

AQHA has a rule prohibiting the registration of a horse (and its offspring) cloned from an existing registered Quarter Horse. Horse owners challenged the regulation as violating the Sherman Antitrust Act and the Texas Antitrust Act. The district court denied the AQHA’s motion to dismiss in a brief opin-ion stating that the doctrine of non-intervention was inapplicable where the association’s rule is alleged to be illegal.

AQHA later moved for summary judgment. The district court denied the motion as to most of the claims, granting it only with respect to the attempted monopolization claims. The court rejected the AQHA’s contention that it can-not be liable as a conspirator under Section 1 of the Sherman Act, noting that where an organization is controlled by a group of competitors, it is considered to be a conspiracy of its members. Further, there was evidence that the AQHA would benefit from the conspiracy, and that “there is evidence that excluding clones deprives the marketplace if independent centers of decisionmaking.”

With regard to the Section 2 monopolization claim, the court ruled that there was evidence that the AQHA had monopoly power and maintained such mo-nopoly power by refusing to register clones. The court stated that a fact finder could determine the AQHA’s monopoly power from its rules that control not only market participation but whether a horse is “viable or worthless.”

On July 30, 2013, the jury ruled against the AQHA, but awarded no damages. The AQHA appealed to the Tenth Circuit Court of Appeals.

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The court of appeals reversed and entered judgment in favor of the AQHA. The court first addressed whether the AQHA could be capable, through the separate interests of its members, of forming a conspiracy under Section 1 of the Sherman Act. The court noted many differences between the AQHA as a breed registry, and the NFL teams that were deemed to have been able to conspire in American Needle v. Nat’l Football League, largely focusing on the fact that the members of the AQHA did not benefit economically from such conspiracy and a breed registry necessarily must define the breed (“create the product”)

However, the court assumed arguendo that the AQHA was legally capable of conspiring with its members who made up the rules committee. The court determined that there had not been sufficient evidence of conspiracy, calling the evidence largely “circumstantial.” The fact that some members stood to gain financially did not give rise to an inference of a conspiracy. The court felt it “critical” that only a minority of the members of the rules committee stood to gain financially as “elite breeders” from the refusal to permit clones. Further, the evidence that a member stated he was motivated by economic interests was not deemed sufficient, because there was no evidence that the other members conspired with him for that purpose.

The court also rejected the alternative theory of monopolization in violation of Section 2 of the Sherman Act. The court noted that “it is true that AQHA’s breed registry rules admit or exclude horses from [the elite Quarter Horse] market. Nothing in the record, however, shows that AQHA competes in the elite Quarter Horse Market. AQHA is a member organization; it is not engaged in breeding, racing, selling or showing elite Quarter Horses.” For an entity to be liable for monopolization of a market, it must compete in that market, the court held.

2014

Guerro v. Bensalem Racing Ass’n, 25 F. Supp. 3d 573 (E.D. Pa. 2014)

Trainer was accused of sexually harassing females at Philadelphia Park Race-track. The Racing Commission issued a Notice of Ejection, ejecting him from the grounds for ten years. After a hearing, the ejection was affirmed. On appeal, the trainer argued that the Commission had no authority to eject him because the conduct was unrelated to racing. The state court held that the Commission had the authority to eject him, given the necessity of controlling behavior at a licensed facility. The state court also rejected the contention that the hearing officer should have admitted evidence that criminal charges had been dropped. Guerro v. Dep’t of Agriculture, 2013 WL 6578970 (Pa. Cmwlth. 2013). After losing on his state court appeal, the trainer brought a civil action against the track and the horsemen’s association, claiming antitrust violations and civil rights violations under § 1983. His theory was that he was by far the most

41

Antitrust

successful trainer at the track, and other envious trainers conspired to trump-up the charges to remove him as a competitor, causing him serious financial loss. The court sustained a motion to dismiss. It held that the claims were barred by the Rooker-Feldman doctrine because the state court had already decided the propriety of his ejection. Further, the court held that the antitrust claim failed to state antitrust injury or the relevant market. The court also ruled that the trainer failed to allege concerted conduct necessary to show a contract, combination or conspiracy, noting that the Racing Commission found that the horseman were not involved in the decision to eject. The civil rights claim failed because the track was not acting on behalf of the state, and the official who ejected him, who was a peace officer for the state, was not acting as a peace officer for the state.

2010

Cloverleaf Enterprises, Inc. v. Maryland Thoroughbred Horseman’s Ass’n, 2010 WL 3091096 (D. Md. 2010)

Cloverleaf owned Rosecraft Raceway, a Standardbred track in Maryland. Rose-craft’s major source of revenue was OTB, particularly Thoroughbred races like the Kentucky Derby. It had an agreement, approved by the Maryland Racing Commission and the Maryland HPBA, to receive signals from Thoroughbred tracks, including those outside of Maryland. However, it had financial problems and fell behind on its payments. As a result, the Maryland HPBA and Jockey Club petitioned the Racing Commission to withdraw its consent to receive the signal and urged out-of-state tracks to not send the signal to Rosecraft.

Cloverleaf sued under both Sections 1 (contract, combination or conspiracy in restraint of trade) and Section 2 (monopolization and attempt to monopolize) of the Sherman Antitrust Act, and for breach of contract. The Jockey Association and HBPA moved to dismiss. The court held that the complaint stated a claim under the antitrust laws. It rejected the argument that the Noerr-Pennington doctrine shielded the defendants from suit. The court also rejected the asser-tion that the IHA provided antitrust immunity. However, the court dismissed the breach of contract claim because the defendants’ actions were “patently appropriate under the agreement” because the agreement authorized legal action in the event of a payment default.

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2009

Churchill Downs, Inc. v. Thoroughbred Horsemen’s Group, LLC, 2009 WL 774354 (W.D. Ky. 2009)

Churchill Downs (which owns Calder), sought to provide a signal to an Ad-vance Deposit Wagering (“ADW”) operation. Several state horsemen’s groups withheld consent (the “horsemens’ veto”), which consent was necessary under Interstate Horseracing Act (“IHA”), to pressure Churchill into providing a larger portion of payout to horsemen in the form of purses. Churchill sued Kentucky HBPA and an organization called the Thoroughbred Horsemen’s Group, whose members were the various state horsemen’s’ groups, alleging their concerted action violated the Sherman Antitrust Act.

The defendants moved to dismiss on the grounds that Churchill lacked antitrust standing, and that the actions enjoyed implied immunity from the antitrust laws as a result of the IHA. The court first held that Churchill had standing because it alleged antitrust injury – essentially higher potential cost for the signal – and it alleged the injury occurred as a result of concerted anti-competitive actions.

In addressing the immunity argument, the court held that although the IHA created immunity for a horsemen’s group, that immunity neither extended to individual horsemen nor groups of horsemen’s groups.

The court also held that Churchill had met the heightened pleading requirements for an antitrust claim, finding that the complaint adequately alleged a group boycott that affected an unreasonable restraint on trade in the applicable market.

2006

JES Properties, Inc. v. USA Equestrian, Inc., 458 F.3d 1224 (11th Cir. 2006)

This case involved the USEF’s “Mileage Rule,” which prohibited the conduct of a sanctioned horse show within 250 miles of a scheduled sanctioned horse show. The plaintiffs, show promoters, desiring to established competing sanc-tioned shows in Florida, sued USEF and the horse shows benefiting from the Mileage Rule, under both Sections 1 (contract, combination or conspiracy) and Section 2 (monopolization and attempt to monopolize) of the Sherman Antitrust Act. The defendants moved for summary judgment.

The district court granted summary judgment on multiple grounds. It first held that the defendants were “impliedly” immune from the antitrust laws under the Ted Stevens Olympics and Amateur Sports Act. It then held that the plaintiffs lacked standing because assertion of injury to them was not “antitrust injury.” It then held that no claim existed under Section 1 because the restraint of trade

43

Antitrust

was not unreasonable as it promoted equestrian sports, rejecting the contention that a per se analysis applied. It held that Section 2 monopolization did not apply because USEF was not a competitor, and the show defendants were not monopolizing or attempting to monopolize.

2003

Gill v. Delaware Park, 294 F. Supp. 2d 638 (D. Del. 2003)

Michael Gill has one of the largest Thoroughbred racing stables in the country. Much of his success is derived from his aggressive practice of “claiming” horses that tend to be undervalued. This claiming activity was supposedly contrary to an unwritten (but illegal) understanding, among trainers and owners that they would not claim each other’s horses.

Supposedly because of “adverse publicity” that he brought, Gill was banned from stabling horses at Delaware Park. A competitor of Gill’s, William Rick-man, was a member of Delaware Park, LLC. The ban also affected Gill’s ability to race elsewhere.

Gill sued Delaware Park and others, alleging (1) violation of the Sherman Antitrust Act; (2) deprivation of due process under 42 USC § 1983; (3) tor-tious interference with contract and advantageous business relationship; and (4) defamation for calling him a “liar” in the press.

The defendants moved for summary judgment. The court denied the motion on all counts but the defamation count. With regard to the antitrust and tortious interference claims, the defendants argued they had unfettered discretion to exclude whoever they wanted. The court held that this ability did not excuse using that discretion for an anticompetitive purpose. The court also held that there was an issue of fact as to whether the exclusion constituted a restraint of trade, particularly given Rickman’s control over Delaware Park. The court dismissed the defamation claim, however, because the term “liar” was used more as an epithet rather than a factual statement, and as such, was protected speech as an “opinion.”

2002

Livingston Downs Racing Ass’n, Inc., v. Jefferson Downs Corp., 259 F. Supp. 2d 471 (M.D. La. 2002)

Fairgrounds and Jefferson Downs were competing tracks within Louisiana. The Fairgrounds was owned by Marie and Bryan Krantz, who also owned a company that operated OTB parlors. When Jefferson Downs stopped holding races, Al Ransome, the owner of Livingston Downs, saw an opportunity to

44


open a track to compete with Fairgrounds. To do so, Livingston Downs needed the approval of the Louisiana State Racing Commissioner and the voters of Livingston Parish. However, at that point, the Krantz’s allegedly lodged into a vicious anti-competitive scheme consisting of: (1) aggressively lobbying the state legislature and Racing Commission for favorable actions; (2) delaying the licensing process with the Racing Commission; (3) filing frivolous lawsuits through corporations within their control and using straw-plaintiffs, without regard to the merits of the claims; and, (4) running, via an alter ego, an aggres-sive ad campaign aimed at convincing voters to reject new live pari-mutuel racing operations.

These actions frustrated Livingston Downs’ entry into the market. Livingston Downs sued the Krantzes and their affiliates, contending violations of RICO (based on mail fraud), Section 1 of the Sherman Act (contract combination or conspiracy in restrain of trade), and Section 2 of the Sherman Act (attempt to monopolize and conspiracy monopolize). The court dismissed most of the claims on summary judgment. With regard to the RICO claim, because the mail fraud claims were based on fraudulent statements made to courts, the court ruled that such claims could not be the basis of a RICO mail fraud claim, because the fraud was not directed to the plaintiffs. The court also noted that “several courts have rejected the theory that legal filings may constitute mail fraud.”

With regard to the Section 1 Sherman Act claim, the court held that because all of the defendants were either alter egos or puppets of the Krantzes, the conspiracy was, in effect, intra-enterprise, and thus did not qualify as a con-spiracy. Likewise, the court dismissed so much of the Sherman Act Section 2 claim that alleged the conspiracy to monopolize. The court held, however, that there were sufficient allegations to state a Section 2 Sherman Act Claim of attempt to monopolize. The court also held that one could not conspire with the government, the Racing Commission members in this case.

2000

Davric Marine Corp. v. Rancourt, 216 F.3d 143 (1st Cir. 2000)

Davric owned and operated a harness track in southern Maine. Davric claimed that competitors and members of the New England Harness Horseman’s As-sociation committed several dirty tricks to take over its track. It alleged that the individuals arranged a boycott against the track, lobbied against the track being provided racing dates, and instituted malicious litigation. The court of appeals upheld summary judgment in favor of the defendants. The court held that the evidence of a conspiracy was too thin to survive summary judgment, and that the lobbying efforts were immune from antitrust scrutiny under the Noerr-Pennington doctrine.

45

Antitrust

1999

Super Sulky Inc. v. U.S. Trotting Ass’n, 174 F.3d 733 (6th Cir. 1999)

Plaintiff was the manufacturer of a new sulky design “Cheetah Super Sulky” for harness racing, which design permitted faster race speeds. The USTA ap-pointed a commission to determine whether sulky designs should be standard-ized. Among the members of the commission was a representative of a sulky manufacturing firm that sold sulkies with a traditional design. The commission recommended, and the USTA adopted, a requirement for a standard design – the traditional design. The plaintiff went out of business and sued under Sections 1 and 2 of the Sherman Act and for interference with a business relationship. The Sherman Section 2 count was dismissed, but the Section l count went to the jury, which awarded the plaintiff substantial damages. The district court, however, rendered a judgment in favor of the USTA, holding that there was insufficient evidence of a conspiracy in restraint of trade. The Sixth Circuit agreed, holding that the circumstantial evidence was insufficient to show a conspiracy. The court also held that the conduct of the USTA was privileged, and thus plaintiff’s interference claim was invalid.

46


47

Arbitration

ARBITRATION

48


49

Arbitration

2017

Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159 (Fla. Dist. Ct. App. 2017)

After insured horse died, insured sued insurer to recover value. The litigation proceeded for a year on a dispute as to standing, because the horse was actually owned by a person who was not the original plaintiff, and had not actually been transferred to the original plaintiff as intended. That dispute was cured when the person was added as a plaintiff. The insurance company then moved to compel arbitration based on the arbitration clause in the policy. The court granted the motion.

The court of appeals affirmed. It held that the insurer had not waived its right to arbitrate by filing the motion after a year of litigation because that year involved the issue of the proper party. That issue was cured, and the motion was filed when the dispute became the value of the insured horse.

2014

Mawing v. PNGI Charles Town Gaming, LLC, 2014 WL 1689772 (N.D. W. Va. 2014)

Racetrack denied stall leases to trainer. The trainer sued, and the case was removed to federal court. The court referred the matter to arbitration because the HBPA’s agreement with the track contained an arbitration clause. Each side selected an arbitrator, who selected a third, to form the panel. The panel ruled in favor of the trainer on one discrimination claim and ordered the track to award 9 stalls.

The track sought to vacate the award. The court, however, rejected the track’s claims that one arbitrator did not participate in the award because his time records did not show such participation. The court also rejected the claim that one arbitrator was biased against the track. It further confirmed the award over the objection of the track that it was not “final” because the issue of damages was left open.

2006

Hall v. Tucker, 863 N.E.2d 1064 (Ohio Ct. App. 2006)

Tucker, a New Jersey resident, bought a Standardbred mare from Hall, an Ohio resident. The mare became ill after Tucker took possession, and Tucker sued Hall in New Jersey for rescission. The matter was referred to arbitra-tion, and the arbitrator granted rescission and awarded Tucker the purchase

50


price and expenses of keeping the horse. Tucker then instituted enforcement proceedings, including domestication of the judgment in Ohio and filing of liens. Eventually, Hall paid the judgment, but for reasons that were disputed, Tucker retained the mare.

51

Bankruptcy

BANKRUPTCY

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53

Bankruptcy

2014

In re Shart (Haig v. Shart), 2014 WL 6480307 (B.A.P. 9th Cir. 2014)

Wendy Haig got fleeced out of millions of dollars as a client of a horse-trainer who ran a fraudulent scheme. After a civil suit was filed, the trainer and his lawyer-wife, who participated in his business, filed bankruptcy. Although they were both deemed liable, the trial court determined that the wife’s liability was not, by virtue of the wife’s marriage and participation in the business, non-dischargeable under an imputed fraud theory. The appeals court affirmed.

In re Siggins (Bates v. Siggins), 2014 WL 1796685 (Bankr. D.N.M. 2014)

Bates purchased a horse from Siggins and after dissatisfaction traded the horse for another under a contract that allowed Bates to return the horse if not satisfied. A year later Bates returned the horse alleging it was unsound, which resulted in a lawsuit. The suit was settled with a judgment for $13,000 being entered against Siggins. Siggins did not pay the judgment and filed bankrupt-cy. Bates claimed the debt was non-dischargeable. After a hearing, the court disagreed because the evidence did not support actionable misrepresentation. However, Siggins had made a post-petition representation that he would give Bates another horse, and the court enforced that post-petition obligation.

2013

In re Hyland, 2013 WL 5979746 (Bankr. E.D. Tenn. 2013)

Secured creditor moved for relief from the automatic stay and for abandon-ment of two horses in which it had a security interest. The court ruled that the fact that the horses were not insured proved that the creditor’s interest was not adequately protected, although the secured creditor did not show that the horses were burdensome to the estate and of inconsequential value. Thus the court ruled that if the debtor did not insure the horses, the stay would be lifted to allow foreclosure.

2012

In re Racing Services, Inc., 482 B.R. 823 (B.A.P. 8th Cir. 2012)

RSI was a simulcast service provider in North Dakota. PWE was a high-vol-ume betting concern that placed bets on North Dakota horse races through RSI. RSI was regulated by the state. When RSI went bankrupt after an FBI raid and adverse publicity, PWE had $2.4 million on account with RSI. Be-

54


cause the state took all the assets for taxes and other claims, PWE recovered nothing. PWE filed an adversary complaint alleging that the payments to the state were preferences and fraudulent conveyances, and that the state’s claim should be equitably subordinated. The bankruptcy court ruled against PWE on all of its claims.

2011

In re Jones, 2011 WL 3320504 (Bankr. D. Or. 2011)

Jones owned a farm where her principal activity was boarding and training horses. She filed chapter 12 (family farmer) bankruptcy. The court determined she was not eligible for chapter 12 because she was not engaged in a “farming operation.” The court noted there was a split in authority as to whether horse boarding was a farming operation, and elected to side with the cases that held it was not because the risks are not the same as raising horses as livestock.

2010

In re Barnhart, 2010 WL 94573 (Bankr. M.D. Pa. 2010)

Barnhart, a dentist and Thoroughbred horse trainer, had a judgment entered against him in a civil case brought by his former partner in a horse endeavor. Instead of posting a bond for his appeal, he filed bankruptcy. The former partner moved to dismiss the bankruptcy as having been filed in bad faith. The court agreed. Significant to the court was Barnhart’s transfer of two horses to his wife prior to filing bankruptcy.

In re New York Off-Track Betting Corp., 427 B.R. 256 (Bankr. S.D.N.Y. 2010)

New York City OTB Corp. filed for chapter 9 municipal bankruptcy, and NYRA moved to dismiss the petition. The court held that the OTB was eligible to file municipal bankruptcy. The court rejected NYRA’s argument that the OTB had to have a feasible plan of reorganization to be eligible for chapter 9.

2009

In re Poe, 2009 WL 2357160 (Bankr. N.D. W. Va. 2009)

Owners of a horse-boarding operation filed chapter 12 (family farmer) bank-ruptcy, and sought to strip down the FSA loan on the farm. The FSA objected, contending that the operation was not a “family farm” as the boarding operation

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Bankruptcy

did not constitute a “farming operation”. The court agreed. It looked to the definition of “farming operation”, and from its review of the non-exclusive list, determined that only operations which were subject to risk of bad weather or disease qualified. This might have included raising horses for livestock, but did not include boarding and training, as that risk flowed through to the clients. The court ruled that the farmer was not entitled to file a chapter 12 petition.

2007

In re Bachman, 2007 WL 4355620 (Bankr. D. Idaho 2007)

Debtor in bankruptcy failed to list her horses on her schedules. In an adversary proceeding, the court ruled that she had committed fraudulent and deceptive acts, despite the fact that the horses had only sentimental value.

In re White, 363 B.R. 157 (Bankr. D. Idaho 2007)

Husband and wife engaged in a horse breeding operation. After separating and while a divorce proceeding was pending, the wife had a promising colt gelded. The divorce court awarded the horse to the husband in the divorce proceeding. Subsequently, the wife filed bankruptcy and the husband sued the wife alleging that gelding the horse was a wrongful act and non-dischargeable under § 523 of the Bankruptcy Code. After a trial, the court first determined that although it was a close question, because the divorce court record was incomplete, the divorce decree did not serve to preclude the claim under the doctrine of res judicata. However, the court denied relief to the husband, finding that there was no proof of injury because proof of the value of the horse as a stallion was necessarily “purely hypothetical.” It also held that proof of willful and malicious intent on the part of the wife was lacking because the wife had at least some reason for gelding the horse.

2006

In re Buchanan, 2006 WL 2090213 (M.D. Tenn. 2006)

The Buchanans lived in a double-wide trailer on a 3.8 acre farm where they bred and sold Walking Horses. They filed bankruptcy under chapter 12 (the family farmer provisions) and creditors moved to dismiss. The bankruptcy court’s determination that horse breeding and selling was “farming” because it involved typical risks of agriculture was upheld on appeal. Likewise, the court upheld the determination that the farm was worth only $70,000 despite a mortgage loan for $134,000 on the farm.

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2002

In re Calumet Farms, Inc., 46 F. App’x 300 (6th Cir. 2002)

This case is yet another chapter dealing with litigation of the bizarre and often incomprehensible transactions of Calumet Farm, which filed bankruptcy in 1991 (and subsequently had its name changed to Phoenix Corp.). This par-ticular case involved two transactions between Calumet and William Allen. The first transaction at issue was a conveyance and resale of brood mares from and to Calumet. In 1988, Allen got four brood mares from Calumet for $3,000,000, and executed four promissory notes for their payment. The mares were grossly overpriced.

There was also a side agreement that allowed Allen to cancel the purchase and portions of the promissory notes under certain circumstances. A year later, Allen and Calumet executed an instrument under which Allen returned one of the mares, LUCINDA LEA. (He also returned, then immediately rebought, three other mares.) LUCINDA LEA died shortly thereafter. Phoenix Corp. challenged the conveyance of LUCINDA LEA as a fraudulent conveyance under Kentucky’s fraudulent conveyance law. The claim was that because the obligation incurred was grossly in excess of the value of LUCINDA LEA, the conveyance constituted a fraud on creditors.

The Sixth Circuit upheld the bankruptcy court’s and district court’s determina-tion that the transaction did not constitute a fraudulent conveyance. The Sixth Circuit noted that “the reconveyance was merely a reversal of the original transaction. Phoenix has no claim for fraudulent conveyance based on the resale price,” despite that resale price being grossly inflated. There was also some indication that the reconveyance was back-dated, to be effective before the death of LUCINDA LEA, but this was not significant to the courts.

The second transaction involves the formation of a partnership between Allen and Calumet. Allen donated his half interest in eight racehorses, and Calumet donated its interest in brood mares and its half interest in the racehorses. Cal-umet had previously acquired interest in horses from Allen for $1,832,375, plus an assignment of an account receivable from nominations to ALYDAR and SECRETO, plus nominations to ALYDAR for three years. The purchase price was paid by three promissory notes.

After ALYDAR died in November, 1990, Allen and Calumet dissolved the partnership, and Allen canceled the promissory notes and surrendered the claims to the receivable. Allen was also granted a season to CRIMINAL TYPE, in partial compensation for the loss of two ALYDAR seasons. After Calumet’s bankruptcy, Phoenix sued Allen under a fraudulent conveyance theory. The bankruptcy court granted summary judgment to Allen, which summary judg-ment was affirmed on appeal to the district court.

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Bankruptcy

On appeal to the Sixth Circuit, Phoenix argued that the value received by Allen was some $2,567,375, and far exceeded the value Phoenix received of about $221,000. The court noted, however, that of that amount, a $1.5 million note was cancelled in exchange for a note from Allen in the same amount, thus constituting offset. The other two promissory notes were not paid. Phoenix, however, urged the court to look at the value of the conveyance as to the partic-ular time of the conveyance, not taking into account the later transactions that showed the notes were actually fairly valueless. The Sixth Circuit, however, stated that because the conveyance complained of was actually an offset, it must be looked at from the time of the offset. The Sixth Circuit upheld the Bankruptcy Court’s determination that the execution of the three promissory notes by Calumet did not result in the transfer of property (as required in a fraudulent conveyance statute) by Calumet in view of the fact that nothing was paid on the notes. The Sixth Circuit, therefore, affirmed the decision of the district court and the bankruptcy court.

2001

In re McCoy, 269 B.R. 193 (Bankr. W.D. Tenn. 2001)

Debtor was lent $25,000 for purposes of purchasing horses. However, he used the funds for other purposes, including paying off a lien on his truck. Debtor’s debt was deemed non-dischargeable as a financing procured by false pretenses under § 523(a)(2)(A) of the Bankruptcy Code.

2000

In re Burger, 254 B.R. 692 (Bankr. S.D. Ohio 2000)

On the eve of the foreclosure sale of horses in Florida, debtor filed a chapter 12 petition in Ohio. The foreclose creditors moved to dismiss. The court granted the motion to dismiss, holding that the last-minute filing prior to the foreclosure sale was a bad-faith filing. Moreover, as debtor failed to produce a bill of sale for the horses, it was unclear that debtor even owned the horses.

In re Horton, 252 B.R. 245 (Bankr. S.D. Ga. 2000)

Debtor failed to list a horse he owned in his bankruptcy schedules, and a creditor objected to discharge. The court held that the fact that title was registered in his ex-fiancé’s name was not controlling. Discharge was denied.

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In re Showtime Farms, Inc., 267 B.R. 541 (Bankr. E.D. Tex. 2000)

Debtor horse-farm owner’s chapter 12 plan was opposed by a creditor as not feasible. The court held that if the plan was amended it would be approved as feasible, as a result of significant value of the property, enabling the creditor likely to be made whole.

1998

In re Becker, 217 B.R. 231 (Bankr. M.D. Tenn. 1998)

Becker and Bracken entered into a contract wherein Bracken sold Becker eleven miniature horses, with registration papers, for $12,000. The contract provided for installment payments of $1,000 down and $1,000 a month, and that Bracken would retain the registration papers and release them one at a time when each installment payment was made. Becker picked up the horses, but failed to make the installment payments. Bracken sued in state court, which resulted in an agreed order requiring arrearage to be caught up and installment payments to continue. A couple of the registration papers were sent to Becker when the arrearage was caught up. Predictably, Becker failed to make the future installment payments. Bracken had the sheriff execute on the horses, and the sheriff seized the horses and held them on Bracken’s farm as its bailee.

Becker then filed a chapter 11 bankruptcy petition and moved for a turnover of the horses and the registration papers. The court first analyzed whether the executed-upon horses were property of the estate. It reasoned that even though execution transfers some type of title to the sheriff (but not the Brackens), because Becker still had a statutory right of redemption, “a judgment debtor still retains some ownership interest in the seized property,” and therefore the horses remained property of the estate. This was so despite the fact that the registration papers had never been endorsed over to Becker, because, the court held, “Tennessee law does not require the execution of registration papers for ownership of miniature horses to change hands.”

With regard to the turnover motion as it relates to the registration papers, the court held that the possession of the papers was intended to create a security interest under the UCC. Because the papers were likewise subject to the right of redemption, they were held to be property of the estate and subject to turnover. The court noted, however, that the creditor, Bracken, was entitled to adequate protection of its interest.

In re Gallegos, 226 B.R. 111 (Bankr. D. Idaho 1998)

Debtors claimed a horse named MITTENS that they purchased as a companion for their daughter fell within the “household pet” exemption from creditors.

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Bankruptcy

In a cute opinion by Judge Pappas, with a host of horse puns, the bankruptcy court agreed.

In re Sunflower Racing, Inc., 226 B.R. 673 (D. Kan. 1998)

Sunflower Racing, a subsidiary of Hollywood Park, filed for chapter 11 protection. The bankruptcy bourt refused to approve its “cram-down” plan. The refusal was affirmed because the district court perceived the plan to have several infirmities, including a provision that the contractual obligations of third parties (R.D. Hubbard and Hollywood Park) be extinguished.

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Boarding and Training

BOARDING AND TRAINING

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Boarding and Training

2008

Fiedler v. James, 971 So. 2d 256 (Fla. Dist. Ct. App. 2008)

Plaintiff’s horses were killed and injured in a barn fire, and she sued the owner of the barn for negligence. In her deposition, plaintiff testified that she did not know what caused the fire. The barn owner moved for summary judgment, which was granted. The appeals court reversed, holding that the burden of showing no material issue of fact exists “is not met merely by showing that the plaintiff is not sure what caused her damages.”

2007

Horstmann v. Farber, 944 So. 2d 628 (1st Cir. 2007)

Trainer sued horse owner for training charges and feed expenses incurred in training owner’s horses on owner’s farm. After a trial, the trial court awarded trainer the training bill, but denied claim on the feed expenses because the trainer did not keep sufficient records to show that the feed purchase was used for the owner’s horses. The determination was upheld on appeal.

2001

Slack v. Cropper, 757 N.E.2d 404 (Ohio Ct. App. 2001)

Slack, a trainer, sued a client for board bills when he got substantially in ar-rears. A verdict was rendered for Slack. The appellant claimed that the court erred in numerous ways, including by allowing Slack to testify that he applied payments to the oldest bills first. The court rejected that contention, and re-jected the contention that the computer printout was impermissible hearsay. They were properly admitted because they were successor business records to handwritten records.

2000

Stroh v. Omni Arabians, 748 A.2d 1015 (Md. Ct. Spec. App. 2000)

Dr. Stroh boarded his Arabian at a farm operated by Omni Arabians. No written agreement existed. The invoices sent stated that unpaid accounts were subject to a 1 1/2% per month service charge. Dr. Stroh became seriously delinquent in his board bills and was sued by Omni. The trial court awarded interest at the service charge rate.

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On appeal, the court reversed the interest charge to the extent it exceeded Maryland’s statutory 0% rate. The court held that the interest charge was an unenforceable penalty under common law.

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Breed Registries

BREED REGISTRIES

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Breed Registries

2015

Abraham & Veneklasen Joint Venture v. American Quarter Horse Ass’n, 776 F.3d 321 (10th Cir. 2015)

AQHA has a rule prohibiting the registration of a horse (and its offspring) cloned from an existing registered Quarter Horse. Horse owners challenged the regulation as violating the Sherman Antitrust Act and the Texas Antitrust Act. The district court denied the AQHA’s motion to dismiss in a brief opin-ion stating that the doctrine of non-intervention was inapplicable where the association’s rule is alleged to be illegal.

AQHA later moved for summary judgment. The district court denied the motion as to most of the claims, granting it only with respect to the attempted monopolization claims. The court rejected the AQHA’s contention that it can-not be liable as a conspirator under Section 1 of the Sherman Act, noting that where an organization is controlled by a group of competitors, it is considered to be a conspiracy of its members. Further, there was evidence that the AQHA would benefit from the conspiracy, and that “there is evidence that excluding clones deprives the marketplace if independent centers of decisionmaking.”

With regard to the Section 2 monopolization claim, the court ruled that there was evidence that the AQHA had monopoly power and maintained such mo-nopoly power by refusing to register clones. The court stated that a fact finder could determine the AQHA’s monopoly power from its rules that control not only market participation but whether a horse is “viable or worthless.”

On July 30, 2013, the jury ruled against the AQHA, but awarded no damages. The AQHA appealed to the Tenth Circuit Court of Appeals.

The court of appeals reversed and entered judgment in favor of the AQHA. The court first addressed whether the AQHA could be capable, through the separate interests of its members, of forming a conspiracy under Section 1 of the Sherman Act. The court noted many differences between the AQHA as a breed registry, and the NFL teams that were deemed to have been able to conspire in American Needle v. Nat’l Football League, largely focusing on the fact that the members of the AQHA did not benefit economically from such conspiracy and a breed registry necessarily must define the breed (“create the product”)

However, the court assumed arguendo that the AQHA was legally capable of conspiring with its members who made up the rules committee. The court determined that there had not been sufficient evidence of conspiracy, calling the evidence largely “circumstantial.” The fact that some members stood to gain financially did not give rise to an inference of a conspiracy. The court felt it “critical” that only a minority of the members of the rules committee stood to gain financially as “elite breeders” from the refusal to permit clones. Further, the evidence that a member stated he was motivated by economic

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interests was not deemed sufficient, because there was no evidence that the other members conspired with him for that purpose.

The court also rejected the alternative theory of monopolization in violation of Section 2 of the Sherman Act. The court noted that “it is true that AQHA’s breed registry rules admit or exclude horses from [the elite Quarter Horse] market. Nothing in the record, however, shows that AQHA competes in the elite Quarter Horse Market. AQHA is a member organization; it is not engaged in breeding, racing, selling or showing elite Quarter Horses.” For an entity to be liable for monopolization of a market, it must compete in that market, the court held.

2009

Nokota Horse Conservancy, Inc. v. Bernhardt, 666 F. Supp. 2d 1073 (D.N.D. 2009)

The Nokota Horse Conservancy had been the traditional breed registry for Nokota horses. A former board member, David Bernhardt, registered “Nokota” as a trademark, and started an Association to round up and register Nokota horses. The Conservancy sued for trademark infringement, and moved for a preliminary injunction. The court held that the Conservancy showed a likeli-hood of success on the merits because it appeared to have a protectable com-mon-law trademark, and the use of the mark by Bernhardt and the Association was likely to cause it harm.

2007

Tennessee Walking Horse Breeders’ and Exhibitors’ Ass’n v. Nat’l Walking Horse Ass’n, 2007 WL 4365784 (M.D. Tenn. 2007)

The Tennessee Walking Horse Breeders’ and Exhibitors Ass’n (“TWHBEA”) was the traditional registry for Tennessee Walking Horses, and had copyrighted its registry and registration certificates. The National Walking Horse Associ-ation (“NWHA”) established a registry as well, and registrants submitted the pedigrees and registry numbers from the TWNBEA registry. The TWHBEA sued the NWHA for copyright and trademark infringement.

The district court, after a trial, held that the TWHBEA registry and certificates were entitled to copyright protection, and enjoined the NWHA from using information from the registry and certificates. The NWHA was also required to return the TWHBEA certificates in its files, to the owners. The court also awarded damages against NWHA for willful infringement. However, the court rejected the trademark infringement claim because there was no showing of likelihood of confusion.

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Breed Registries

2002

Efford v. The Jockey Club, 796 A.2d 370 (Pa. Super. Ct. 2002)

Efford sued The Jockey Club in Pennsylvania for an injunction to prohibit the expungement of her registered Thoroughbreds, which were expunged because she engaged in artificial insemination. The trial court dismissed the complaint for lack of jurisdiction over The Jockey Club, which was a New York corpora-tion with its offices in Kentucky. The Superior Court of Pennsylvania affirmed. Efford’s main argument was that Pennsylvania had jurisdiction because The Jockey Club had a national internet presence, and allowed registration online. This was not sufficient to establish long-arm jurisdiction according to the appeals court.

2000

Int’l Sporthorse Registry v. Oldenburger of America, 2000 WL 988525 (N.D. Ill. 2000)

Verband, a breeding association registry of sport horses, since 1923 used its O and Crown mark to certify that stallions, mares and foals meet its standards. Through agreements, ISR was authorized to use the mark in the United States. However, ISR registered the mark as its own. ISR later filed suit against a Verband affiliate, Oldenburger of America to restrain its use of the mark. OA failed to respond to the suit, and ISR obtained a permanent injunction by default. Verband continued to use the mark and later sued ISR in Virginia to enjoin use of the mark. Verband’s suit was dismissed based on the res judicata effect of the ISR suit.

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Civil Procedure /Jurisdiction

CIVIL PROCEDURE/JURISDICTION

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2017

Front Range Equine Rescue v. Vilsack, 844 F.3d 1230 (10th Cir. 2017)

This case involved the protracted litigation involving the USDA’s inspection of facilities for horse slaughter for human consumption. After Congress did not extend the prohibition of inspecting such facilities, injunctions were orig-inally granted then lifted. The direct clams were all dismissed as moot when the prohibition was reinstated. The particular issue on this appeal is whether the injunction bond posted by the plaintiffs as a condition of the injunctions could be recovered by the slaughterhouses. The magistrate ruled that they could not recover. The decision was upheld on appeal.

Mumaw v. Thistledown Racetrack LLC, 2015 WL 5437747 (N.D. Ohio 2015), 2017 WL 4348998 (N.D. Ohio 2017)

Mumaws owned and trained a Thoroughbred racehorse named HIGH SUC-CESS, but after an injury gave it away. One Deborah Jones of California contacted them a couple of weeks later and stated that HIGH SUCCESS was discovered at an auction for slaughter, demanded money to support the horse, and reported the sale to Ohio officials and Thistledown Racetrack. Thistle-down Racetrack suspended all of the Mumaws’ track privileges based on an internal policy, that was incorporated into a boarding agreement, prohibiting transportation of any horse from the track for slaughter.

The Mumaws sued Thistledown in Ohio, and also sued Jones for extortion and defamation. Jones contested personal jurisdiction and also moved to dismiss the claims for failure to state a claim. The court held that there was sufficient jurisdiction based on her deliberate actions in Ohio in contacting racing officials and the track, thus satisfying the “causing tortious injury in Ohio” element of the Ohio long-arm statute. The court dismissed the extor-tion claim, but did not dismiss the defamation claims. Jones’ asserted that the alleged misrepresentation was one of fact and not opinion, and that that no “quasi-judicial privilege” was available because no proceedings were brought until she made the statements.

In 2016, the Mumaws were also suspended from another track. One of the Mumaws was also found to have utilized a third party to race horses at This-tledown despite his suspension, and was further suspended and fined.

In a second amended complaint the Mumaws made allegations against Thistle-down and its stewards. The court dismissed the claims against the individuals in their official capacities based on Eleventh Amendment immunity. Although the injunction claim was not barred, it was also dismissed because there was no showing of a deprivation of a constitutional right. According to the court, due process did not require a pre-deprivation hearing, and the Ohio statute “provides

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multiple levels of review sufficient to ensure Plaintiffs an opportunity to be heard.” The court also held that the individual defendants in their individual capacities with regard to scratching their horse were entitled to qualified im-munity even if a constitutional violation had occurred. The scratch was only for a single race (the right to run in a single race is not a “clearly established constitutional right”), and there was not sufficient evidence that this caused ongoing harm because plaintiffs were free to race elsewhere, and plaintiffs did not show that the stewards’ action was unreasonable.

The court granted Thistledown’s motion for summary judgment on the contract claim based on revoking stall space. The court held that stall space does not guarantee racing, and stall space was not required for racing at Thistledown.

The court also granted summary judgment to Thistledown on the defamation claim, on the basis of lack of compelling evidence. As to Jones, the state-ments were not substantially false, and Jones could not be accountable for Thistledowns’ conclusions from her postings; it therefore granted summary judgment to her.

Standard v. Cameron, 2017 WL 5466718 (E.D. Cal. 2017)

Standard, a California resident, purchased a Quarter Horse named ALAMO for $2,000. ALAMO was used by Cameron, a Texas resident, for competition. ALAMO was later supposedly delivered to Standard, but it was determined after DNA testing that the horse delivered was a different horse. Standard sued in federal court in California, based on diversity. Cameron moved to dismiss for lack of subject matter jurisdiction on the basis that the $75,000 amount in controversy was not met. The court disagreed, relying on the complaint’s allegation that the horse was worth $200,000.

Cameron also moved to dismiss for lack of personal jurisdiction. The court agreed that there were insufficient contacts with California, and thus transferred the case to Texas.

Steve Heathcott Arabians, LLC v. Griffith, 2017 WL 6616371 (Az. Ct. App. 2017)

Griffith boarded a horse with Heathcott, but she failed to pay the board bills. Heathcott refused to give her the horse until the board bills were paid, but Griffith surreptitiously absconded with the horse. Heathcott sued to enforce an agister’s lien, and obtained a judgment transferring the horse to him.

On appeal Griffith argued the court had no jurisdiction because the suit was an in rem action, which required the horse to be present in the jurisdiction.

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The court, however, stated that jurisdiction was based on personal jurisdiction, which entitled the court to determine rights to property outside its jurisdiction.

Griffith also argued that the agister’s lien was invalid because Heathcott had lost possession. The court rejected that argument because the lack of possession was a result of the wrongful acts of Griffith.

2016

Witt v. Nation-Wide Horse Transportation, Inc., 197 F. Supp. 3d 1146 (S.D. Iowa 2016)

Thoroughbred owners hired a transport company to deliver a horse to an Iowa training facility. The arrangement was made online, with the “Terms and Con-ditions” specifying venue for any dispute as Colorado. The horse was injured by the alleged reckless handling of him while being loaded. The owners sued in federal court in Iowa. The defendant transport company sought a transfer of venue based on the venue provision. The court granted the motion based on the venue clause, determining that venue in Colorado was not unconscionable and the “take it or leave it” contract was not a contract of adhesion.

2015

Jamgotchian v. Park Equine Hospital, PLLC, 2015 WL 4151381 (Ky. Ct. App. 2015)

Veterinary firm sued California horse owner for unpaid bills, and the summons and complaint were served pursuant to Kentucky’ long-arm statute. That procedure required the Kentucky Secretary of State to send the summons and complaint to the defendant’s address by certified mail. The horse owner never picked up the envelope from the post office. A default judgment was entered against him. His attempt to have the default judgment set aside was denied. The denial was upheld on appeal, because the owner’s mistaken belief that not picking up the certified mail would deprive the court of jurisdiction was no excusable neglect.

2014

Feld v. Conway, 16 F. Supp. 3d 1 (D. Mass. 2014)

Horse trainer and horse owner got into an online feud concerning the disap-pearance of a horse named MUNITION. The trainer tweeted that the owner was “Fing crazy”. The owner sued for defamation. The suit was dismissed for

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failure to state a claim because, the court ruled, the statement was obviously opinion and not a factual statement about the owner’s mental state.

Grey v. Johansson, 2014 WL 4259432 (D.N.J. 2014)

Grey filed a declaratory judgment action in state court seeking a declaration that a will was valid and that it provided she receive a horse from the estate. The defendant removed the case to federal court. The court remanded the case to state court based on the “probate exception” to federal diversity jurisdiction.

Mawing v. PNGI Charles Town Gaming, LLC, 2014 WL 1689772 (N.D. W. Va. 2014)

Racetrack denied stall leases to trainer. The trainer sued, and the case was removed to federal court. The court referred the matter to arbitration because the HBPA’s agreement with the track contained an arbitration clause. Each side selected an arbitrator, who selected a third, to form the panel. The panel ruled in favor of the trainer on one discrimination claim and ordered the track to award 9 stalls.

The track sought to vacate the award. The court, however, rejected the track’s claims that one arbitrator did not participate in the award because his time records did not show such participation. The court also rejected the claim that one arbitrator was biased against the track. It further confirmed the award over the objection of the track that it was not “final” because the issue of damages was left open.

2013

Daniel v. Stump, 2013 WL 3184771 (W. Va. 2013)

Elderly farm owner had her horses seized when they were determined to have been neglected. She contested the jurisdiction of the court to issue an order. The court rejected the contention because the court that was designated to issue such an order did not have exclusive jurisdiction.

Michael J. McCormick Farm, Inc. v. Swinderman, 2013 WL 2456374 (E.D. Tex. 2013)

Texas farm sued Florida horse owner for recalling a horse it had entrusted to the farm for training and sale. The horse owner moved to dismiss for lack of personal jurisdiction. The court overruled the motion, holding that sufficient minimum contacts existed.

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Park Equine Hospital v. Braugh, 2013 WL 2406093 (E.D. Ky. 2013)

Veterinary firm sued California horse owner for fees in state court. After the case was set for trial, the horse owner filed a counterclaim under the federal Fair Debt Collection Practices Act. The plaintiff sought remand to state court, which was granted because a counterclaim cannot normally be used to create federal question jurisdiction.

2012

Antonini v. Blue Gate Farm, LLC, 2012 WL 6632111 (E.D. La. 2012)

Louisiana resident bought a Florida horse from a Wisconsin resident. He sued in Louisiana when disappointed with the horse. The court dismissed the com-plaint for lack of jurisdiction, holding that the contacting of the seller from Louisiana and sending the purchase price from Louisiana was insufficient specific jurisdiction.

Brewer v. Peak Performance Nutrients Inc., 2012 WL 3861169 (Del. Super. Ct. 2012)

Brewer, a Delaware trainer, was fined, suspended, and stripped of race winnings after two horses he trained tested positive for caffeine. The caffeine turned out to be a contaminant in products sold by Peak Performance, a Florida corporation. Brewer sued for breach of implied warranty in Delaware. Peak Performance moved to dismiss for lack of jurisdiction. The court determined that discovery had to be taken on the motion.

Jackson v. Frank, 2012 WL 6096905 (N.D. Cal. 2012)

Disappointed California horse buyer sued Kentucky seller in California state court for $23,000 in damages, plus punitive damages. The seller removed the case to federal court, but the buyer moved to remand to state court. The court held that unspecified punitive damages could not be taken into account in meeting the $75,000 diversity jurisdiction threshold.

Kennedy v. McCormick, 2012 WL 1919787 (D. Colo. 2012)

Seller of horse sued for breach of warranty, breach of fiduciary duty, and fraud in the sale. The seller moved to dismiss for lack of jurisdiction. The plaintiff sought to take discovery while the motion was pending. The court granted a stay of the proceedings for three months pending consideration of the motion to dismiss.

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Wilcox v. Magill, 2012 WL 834126 (10th Cir. 2012)

Rhonda Robinson allegedly had an agreement with the Wilcoxes to purchase eleven horses. The deal fell through and she sued in state court. She obtained a summary judgment and a writ of execution on the horses. The sheriff seized the horses and shipped them to Ms. Robinson in South Carolina. Later, the Wil-coxes sought to set aside the judgment, and asserted others owned some of the horses. Their lending bank intervened claiming a priority lien. The judge halted the sale and ordered some of the horses delivered back to the proper owners.

The Wilcoxes sued the sheriff in federal court for due process violations. The trial court certified the matter to the court of appeals. The court of appeals ruled that the sheriff had immunity as he was acting pursuant to a facially valid writ in seizing the horses, even if the writ was later set aside. However, the sheriff did not have immunity for sending the horses to South Carolina because the writ did not provide for that. However, the court held there was no constitutional violation because the execution sale was halted by the state court, resulting in the Wilcoxes receiving due process before being deprived of their horses.

2011

Biggs v. Eaton Sales, Inc., 2011 WL 1901793 (Ky. Ct. App. 2011)

Doni Biggs “dba Biggs Farm, Inc.” sued Eaton Sales for negligence that led to injury to horses owned by Biggs Farm, Inc. Biggs Farm, Inc. filed bankruptcy and the trustee sought to amend the complaint to properly allege that the cor-poration was the plaintiff. The trial court denied the motion because the statute of limitations had run, and relation-back under Rule 15 was inapplicable. The court of appeals affirmed.

Villareal, dissatisfied with the judgment, brought suit in Ohio state court. The lower court dismissed the suit on grounds of lack of personal jurisdiction. The court of appeals affirmed. Smith had never done business in Ohio, and simply dealing with an Ohio resident and receiving a check and contract from Ohio, did not reach the level of minimum contacts necessary for long-arm jurisdiction.

Provanzano v. Parker View Farm, Inc., 827 F. Supp. 2d 53 (D. Mass. 2011)

Massachusetts horse owner shipped a mare to a Kentucky farm where the mare was bred. The parties had executed a breeding contract, which had a forum selection clause providing that venue for all claims relating to the agreement shall be Woodford County, Kentucky. The horse owner sued in Massachusetts for various malfeasances, alleging breach of the agreement and other causes of action.

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The defendants moved to dismiss for lack of jurisdiction. The court initially declined, but on reconsideration granted the motion. The court held that the forum selection clause was mandatory, and its enforcement would not be unreasonable. With respect to claims not arising out of the breeding agree-ment, the court held that those claims should likewise be heard in Kentucky, considering judicial economy.

Villareal v. Smith, 2011 WL 3077700 (Ohio Ct. App. 2011)

Villareal and Smith entered into an oral agreement whereby Smith would transport Villareal’s horses from Texas to Arkansas, and as compensation Smith would receive a foal. The relationship fell apart, resulting in a lawsuit in Arkansas, with a judgment entered in favor of Smith.

Wood v. Fliehman, 952 N.E.2d 555 (Ohio Ct. App. 2011)

Wood, a resident of Missouri, entered into a contract with the Fliehmans, residents of Ohio, to provide breeding services, including shipment of semen. The semen was allegedly shipped too late and thus unusable, and Wood sued the Fliehmans in Missouri. Wood obtained a default judgment against the Fliehmans, which she sought to domesticate in Ohio. The Fliehmans moved to set aside the Ohio judgment on the basis that the Missouri court lacked jurisdiction. After a hearing, the trial court granted the motion. The court of appeals affirmed, stating that the exercise of jurisdiction by the Missouri court did not satisfy due process as there were insufficient minimum contacts with Missouri. The court noted that Wood initiated the contact, and although the Fliehmans advertised on the internet, they did not direct their ad to Missouri. Nor did the use of mail, phone, and fax constitute sufficient contacts.

2009

Bloodstock Research Information Services, Inc. v. Edbain.com, LLC, 622 F. Supp. 2d 504 (E.D. Ky. 2009)

BRIS provided online race-performance statistics. To obtain access, mem-bers, typically handicappers, signed a membership agreement in which they acknowledged they would only access the data for their personal use. Ed Bain started a competing service, and had handicapper John Johnson download data from BRIS for that purpose. BRIS sued Bain, Edbain.com, and Johnson under RICO and for breach of contract.

Johnson moved for summary judgment on the basis that the case was moot because BRIS’s database business was sold, and that there was no fraud or RICO violation. The court denied the motion, holding that the sale did not moot

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the damage, and that there was sufficient evidence of fraud because Johnson effectively misrepresented that he was downloading data for his personal use, as represented in the Membership Agreement.

2008

AI-Qasimi v. Pallone, 2008 WL 4178776 (S.D. Texas 2008)

Al-Qasimi, a resident of UAE, purchased an Arabian stallion from Mike Pal-lone and the actual registered owner of the horse, Pallone Veterinary Hospital (“PVH”), located in Arkansas. When Al-Qasimi determined that the horse had an undisclosed genetic defect rendering it unsuitable as a stallion, he sued in Texas. The defendants moved to dismiss for lack of jurisdiction.

The court held that as for Pallone, minimum contacts and thus jurisdiction existed because the horse was transported to Texas and boarded there by an agent for Pallone and PVH, and was inspected there by an agent for the buyer. The court held that no personal jurisdiction existed for other defendants, who did not deal with the agent.

Doe v. AI Maktoum, 2008 WL 4965169 (E.D. Ky. 2008)

Sheikh Hamden, the Finance Minister of the UAE was sued for participating in kidnapping children to serve as jockeys in camel races in the UAE. The court held that it lacked jurisdiction, despite the Sheikh’s extensive horse business in Kentucky.

Siebenaler v. Curtis, 2008 WL 1744797 (D. Vt. 2008)

Suit for breach of contract and defamation in connection with Morgan horse breeding was removed to federal court based on diversity. District Court granted remand because amount of damages did not reach the jurisdictional threshold. Amount claimed as punitive damages were not to be counted, as punitive damages were unrecoverable in a contract case.

Zuraitis v. Kimberden, Inc., 2008 WL 142773 (Mass. Super. Ct. 2008)

Zuraitis, a Massachusetts resident, went to Florida to purchase a horse from Kimberden, Inc. which conducted horse shows in several states, but not Mas-sachusetts. When Zuraitis found out she received the wrong horse, she sued Kimberden, Inc. in Massachusetts. The court dismissed the case for lack of personal jurisdiction, despite the fact that Kimberden, Inc. advertised nationally and had a web-site accessible to Massachusetts residents. All the purchase activities took place in Massachusetts.

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2006

Birzer v. The Jockey’s Guild, Inc., 444 F. Supp. 2d 1005 (C.D. Cal. 2006)

Injured jockey sued Jockey’s Guild for failure to secure insurance for jockeys. The Guild brought a third-party complaint against the West Virginia track where the jockey was injured. The court held it lacked personal jurisdiction over the track. The fact that the simulcast signal was sent by an independent company to California was insufficient to establish general jurisdiction in California.

In re Stabile, 436 F. Supp. 2d 406 (E.D.N.Y. 2006)

NYRA, as a result of a deal struck after being indicted for tax fraud, became subject to a federal court-appointer monitor. A jockey’s agent employed by NYRA threatened the monitor, who brought the matter to the federal court. The federal court determined that it had subject matter jurisdiction despite the fact that the monitoring had ended, and it determined that the All Writs Act controlled the matter.

2005

Fairman v. Hurley, 373 F. Supp. 2d 227 (W.D.N.Y. 2005)

Plaintiff sued defendant for conversion as a result of a lien. The value of the horses taken was $30,000, but plaintiff alleged that the compensatory dam-ages were $1,000,000. The court held that the $75,000 threshold for diversity jurisdiction was not met, and dismissed the complaint with prejudice because the complaint was pleaded deliberately and without merit to attempt to confer jurisdiction.

King v. Jockey’s Guild, Inc., 2005 WL 1793730 (D.N.J. 2005)

Edwin King and Gary Donahue sued the Jockey’s Guild in both state and federal court for violation of the Labor Management Reporting and Disclosure Act, seeking an accounting as a result of the financial scandals of the Guild. The federal court held that the case could proceed despite the simultaneous suit in state court.

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2004

M & L of Delaware, Inc. v. Wallace, 2004 WL 2370708 (D. Del. 2004)

Wallace, a veterinarian and trotting horse trainer located in Ontario was sued in Delaware for wrongful castration of a horse in a procedure performed in Ontario. Despite the fact that Wallace had no place of business in Delaware and did not advertise in Delaware, the court held he was subject to personal jurisdiction because horses he trained ran in Delaware – essentially “market-ing” in Delaware.

2002

Bosco v. Clark, 2002 WL 1370797 (Ohio Ct. App. 2002)

Charles Bosco, an Ohio resident, bought a Thoroughbred racehorse from Brent Clark, a resident of Utah. Bosco claimed that Clark was acting as the agent for Jack Hodge, a resident of Washington, in acquiring the horse. When the horse arrived in Ohio, it was examined by a veterinarian and determined to be lame due to bone chips in his knee. Bosco sued Clark and Hodge. Hodge moved to dismiss for lack of jurisdiction. The court reviewed the affidavits and determined that Clark was not acting as Hodge’s agent in the sale, but that Clark directly sold the horse to Bosco. Therefore, the court held there was no jurisdiction over Hodge.

Back Bay Farm, LLC v. Collucio, 230 F. Supp. 2d 176 (D. Mass. 2002)

Back Bay Farm, LLC, alleged that Allison Collucio used false and deceitful tactics when selling Back Bay a horse. Back Bay Farm, located in Massa-chusetts, sued Collucio, a resident of Florida, for violating the Massachusetts consumer protective statute. Collucio dismissed the lack of jurisdiction, as-serting that the transaction did not occur in Massachusetts, but in Florida and Virginia, and that she was not a resident of Massachusetts and did very little business in Massachusetts. Back Bay argued that jurisdiction was appropri-ate because Collucio’s farm advertised nationally, and knew that the horse was headed for Massachusetts after being purchased. Her agent contacted Back Bay in Massachusetts. The district court ruled that there was sufficient minimum contacts to justify long-arm jurisdiction. The court also noted that post-transaction contact with the plaintiff in Massachusetts had also occurred, and further justified long-arm jurisdiction.

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Efford v. The Jockey Club, 796 A.2d 370 (Pa. Super. Ct. 2002)

Efford sued The Jockey Club in Pennsylvania for an injunction to prohibit the expungement of her registered Thoroughbreds, which were expunged because she engaged in artificial insemination. The trial court dismissed the complaint for lack of jurisdiction over The Jockey Club, which was a New York corpora-tion with its offices in Kentucky. The Superior Court of Pennsylvania affirmed. Efford’s main argument was that Pennsylvania had jurisdiction because The Jockey Club had a national internet presence, and allowed registration online. This was not sufficient to establish long-arm jurisdiction according to the appeals court.

Watral v. Silvernails Farm, LLC, 51 F. App’x 62 (2d Cir. 2002)

Watral owned several racehorses and breeding stock, which he entrusted to his trainer, Dennis Brida. At one point, Brida transferred the horses to the care and custody of Silvernails Farm, LLC in New York. Watral claimed the transfer was made as part of a scheme to steal the breeding rights in the horses. He sued Watral under RICO. The district court granted summary judgment on the RICO claim, holding that there was no “pattern of racketeering” as a matter of law. Plaintiff’s allegation did not meet the “continuity” portion of the “pattern” test, because it was a closed end scheme that occurred over a period that was, at most, two years

2001

Fanning v. Fox Meadow Farm, Inc., 164 F. Supp. 2d 921 (E.D. Mich. 2001)

Plaintiffs filed suit in federal court to recover the purchase price of one horse and the less of value of a horse ($20,000) traded for the sale ($15,000), plus costs of care and board, and for damages for infliction of emotional distress. The court dismissed the action because the combined damages did not meet the $75,000 jurisdictional threshold, despite unspecific affidavits from attorneys that damages exceeded $80,000.

2000

Mallinckrodt v. Barnes, 272 A.D.2d 651 (N.Y. App. Div. 2000)

Plaintiff horse owner sought an injunction prohibiting defendants from eutha-nizing her horse. During the proceedings, the horse died anyway. The complaint was dismissed on mootness grounds. The appellate division affirmed.

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Threkeld v. State of Colorado, 16 P.3d 359 (Mont. 2000)

The Threlkelds’ premier stud Appaloosa was sent to the Colorado State Uni-versity College of Veterinary Medicine for treatment for ataxia. Later, the Threlkelds sued CSU in Montana for veterinary malpractice. The trial court’s ruling that it had no jurisdiction over CSU was upheld by the Montana Supreme Court because CSU’s contacts with Montana were minimal, despite the fact that promotional material was regularly sent by CSU to Montana horsemen, as that material was sent to solicit contributions and report on research.

1999

New England Horsemen’s Benevolent and Protective Ass’n v. Rockingham Ventures, Inc., 1999 WL 350653 (D. Mass. 1999)

Rockingham operated a track in Salem, New Hampshire, and had a simulcasting agreement with the New England HBPA. A dispute occurred and the HPBA sued Rockingham in Massachusetts. Rockingham challenged long-arm juris-diction over it. The court ruled that it had jurisdiction because Rockingham simulcasted races run on Massachusetts tracks and advertised in the Boston Globe.

Priebe v. Kolmeier, 1999 WL 190753 (Tex. App. 1999)

Purchaser of a horse sued seller in Texas for deceptive trade practices. The seller resided in Minnesota. Purchaser made the purchase agreement with the seller while she was in Texas. The Court of Appeals of Texas held that this was insufficient to confer personal jurisdiction over the seller.

1998

Gentile v. Augusta, 1998 U.S. Dist. Lexis 20991 (E.D.N.C. 1998)

Gentile, a North Carolina resident, acquired a Saddlebred in trade with an Ohio resident. When the horse he acquired turned out to be lame, he sued the agent that handled the transaction in North Carolina state court. That court dismissed the claim for lack of jurisdiction. Gentile then sued in the North Carolina Federal District Court. The federal court sustained a motion to dis-miss, holding that the ruling of the state court was binding on the issue of the jurisdiction of North Carolina.

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2018

Wilkerson v. Lowndes County, 2018 WL 1309854 (N.D. Miss. 2018)

Animal control officers observed allegedly malnourished and diseased horses and after presenting an affidavit and testimony to a court, obtained a seizure order. A subsequent hearing resulted in the return of the horses to the owner. The owner sued the officers for violating his constitutional rights, alleging that the affidavit for the order contained false information and told an incomplete story, and that they obtained the seizure order as retaliation in violation of the First Amendment.

The court granted qualified immunity to the defendants on summary judgment. Although the affidavit was not entirely accurate, there was sufficient evidence presented to obtain the seizure order. The court also held that the observing of some emaciated animals justified seizure of the entire group of animals.

With regard to the retaliation claim, the court held the matter in abeyance pending the U.S. Supreme Court’s decision in Lozman v. City of Riviera Beach, which will decide the issue of whether probable cause operates as an absolute defense to a retaliation claim.

2017

Annunziata v. New Jersey Racing Comm’n, 2017 WL 4390266 (D.N.J. 2017)

Annunziata applied for a license as a stable worker, but received a letter from a steward stating he would recommend the license be denied for financial irresponsibility. He sued in federal court for violation of his civil rights. The court dismissed the suit because the Racing Commission had not, in fact, taken formal action to deny the license, thus there was no “case of controversy” on which to base jurisdiction.

Ecurie Reve Avec Moi, Inc. v. New Jersey Racing Comm’n, 2017 WL 6403001 (D.N.J. 2017)

Racehorse owners sued the New Jersey Racing Commission and its executive director for violating their due process rights when they suspended their horse and withholding purse monies. The court dismissed the claims against the Commission and the director in his official capacity based on absolute immunity under the Eleventh Amendment. The court denied the motion to dismiss the director in his individual capacity because the record, on a motion to dismiss, was not sufficient to determine if he had qualified immunity.

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Jamgotchian v. State Horse Racing Comm’n, 269 F. Supp. 3d 604 (M.D. Pa. 2017)

Racehorse owner Jerry Jamgotchian brought his “claiming jail” challenge to Pennsylvania. He sued the Pennsylvania Racing Commission asserting that the Commission’s rule that a claimed horse must remain racing only at the track where claimed for the duration of the meet violated the Commerce Clause. The court first held that Jamgotchian had standing, and could bring a claim for injunctive relief against the state under 42 USC § 1983. But the court awarded summary judgment to the state, recognizing that the effect on commerce was incidental and the rule did not explicitly discriminate between in-state and out-of-state tracks. The rule was consistent with the state’s purpose of upholding the integrity of horse racing in Pennsylvania. The court also rejected Jamgot-chian’s argument that the rule violated the unconstitutional conditions doctrine because the rule “does not require owners who claim horses in claiming races to only race those horses at Pennsylvania tracks in perpetuity.”

Moody v. Michigan Gaming Control Bd., 2013 WL 791628, 2013 WL 6196947 (E.D. Mich. 2013), remanded, 790 F.3d 669 (6th Cir. 2015), after remand, rev’d in part, 871 F.3d 420 (6th Cir. 2017)

Investigation led to search warrants by police against trainers and gamblers for harness-race fixing. The Michigan Racing Commission sought to suspend the trainers’ licenses. At the stewards’ hearing, the trainers invoked their Fifth Amendment privileges. However, they were suspended for failing to cooperate in an investigation, as their license application required them to do. The Racing Commission also refused to renew their licenses.

The trainers sought a preliminary injunction. The injunction was denied initially and again on reconsideration based on the failure to show an irreparable injury (the right to make a living being a monetary right) and because harm to others would result by allowing individuals who are subject to an administrative investigation to refuse to cooperate in that investigation.

In the second decision, the court addressed the cross-motions for summary judgment. The court held that the claims against the state or its officers in their official capacity for monetary damages were barred by Eleventh Amendment immunity. With regard to the claims against the defendants for violating their civil rights, the court held that the defendants were entitled to qualified immu-nity. The substantive due process claim failed because no protected property right was deprived, the court finding that “harness racing is not one of life’s occupations.” Further, a mere expectation of a license is not a property right. The procedural due process claim failed because the trainers were afforded a hearing. The court thus granted the defendants’ motion for summary judgment.

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In the initial appeal to the Sixth Circuit, the court of appeals affirmed that plaintiffs had received due process with respect to their license suspension, but remanded because there was an issue of fact as to whether they received due process in connection with their exclusion from the track. The court fur-ther held that the Fifth Amendment rights of the plaintiffs were violated by requiring them to answer potentially self-incriminating questions, but left it for the district court to determine if the right to be offered immunity against self-incrimination was clearly established at the time of the violation.

On remand the district court denied motions for summary judgment, even though it was determined that the plaintiffs received a post-exclusion hearing.

On the next appeal, plaintiffs argued that even though they received a post-ex-clusion hearing, their due process rights were nevertheless violated because the hearing was not timely. The court agreed that a hearing 2½ years after the exclusion was not timely, and thus a clearly-established right was violated. The court of appeals also held that the district court’s grant of qualified im-munity was erroneous, and therefore the Fifth Amendment right to refuse to self-incriminate was clearly established.

2016

Carrillo v. Penn Nat’l Gaming, 172 F. Supp. 3d 1204 (D.N.M. 2016)

Quarter Horse trainer Arnoldo Carrillo had an unusually high number of horses injured during races. Sensitive to recent publicity about New Mexico racing, Zia Park, owned by Penn National, told Carrillo he could no longer race there. Several other New Mexico tracks followed this lead and summarily barred Carrillo. The stewards at Sunland Park scratched Carrillo’s horses.

Carrillo filed a state court action against some of the tracks. The state court granted summary judgment to the tracks on the basis of the common-law right to exclude.

While that case was on appeal Carrillo brought a § 1983 action in federal court alleging constitutional violations by the tracks, the New Mexico Racing Commission, the Boards of Stewards of the various tracks, and the stewards themselves. The defendants moved to dismiss on various grounds.

The tracks moved to dismiss on the grounds of res judicata (the “claim pre-clusion” variety) based on the prior determination of the state court. The court granted that motion because the claims could have been litigated in the state court action because they were based on the same events giving rise to the claims in the state lawsuit.

Other defendants moved to dismiss on the basis of res judicata/collateral es-toppel (the “issue preclusion” variety). The court denied that motion because

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the claims against them were not fully litigated in the state lawsuit (to which they were not parties).

The Racing Commission and Boards moved to dismiss the § 1983 action because they were not “individuals” and thus the Act did not apply to them. The court did not grant the dismissal, because there was some precedent that non-individuals are proper defendants for purposes of injunctive relief.

The stewards moved to dismiss on the basis of qualified immunity. The motion as to the stewards of three of the tracks was granted. The basis was that prece-dent was unclear as to whether exclusion form a track was a clearly established constitutional right and whether they were acting under color of state law. It was denied as to the stewards of Sunland Park, because they summarily merely scratched Carrillo’s horses.

Hatlee v. Olds, 665 F. App’x 695 (10th Cir. 2016)

Horses at Echo Valley Ranch appeared malnourished, resulting in a letter from the Sheriff’s office. After a news story and public outcry about the horses, and at the urging of veterinarian Ashleigh Olds, the Sheriff’s office seized the horses without a warrant (although after the seizure it unsuccessfully applied for a warrant). The owners of the ranch were charged with animal cruelty, but the evidence from the warranty search was suppressed, and the owners were acquitted.

The unsuccessfully prosecuted owners then sued Dr. Olds, and others, for vio-lating their civil rights under § 1983. The trial court granted Dr. Olds summary judgment because there was no evidence she was acting under color of state law. The court of appeals affirmed. It held that urging state officials to take action did not constitute state action.

Westmore v. Hyde, 2016 WL 2642254 (W.D. Wisc. 2016)

After a complaint, a sheriff went to the Westmores’ property and observed neglected horses and a donkey. He returned with a couple of veterinarians, and without a warrant entered the property. The horses were seized and the donkey was euthanized. The criminal charges were settled, and the surviving animals returned to the Westmores.

The Westmores sued those involved for various violations of their constitutional rights. After discovery, the defendants moved for summary judgment. The court denied summary judgment on the Fourth Amendment claim, holding that neither the asserted defense that they received permission to enter the property nor the “exigent circumstances” defense were sufficiently established. With respect to the claim that the animals were unlawfully seized, the court denied summary judgment because the seizure may have been the fruit of the poten-

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tially unlawful warrantless entry. The court also denied summary judgment on the claim that Mrs. Westmore was restrained with excessive force when they were euthanizing the donkey. The court granted summary judgment to the county, under the Monell doctrine that for a municipality to be liable under § 1983, the municipality had to have been engaged in a practice or habit of violations, or indifference to constitutional rights.

2015

Burnell v. Marin Humane Soc’y, 2015 WL 6746818 (N.D. Cal. 2015)

Humane Society seized the Burnell’s horses after determining they were malnourished and unhealthy. The Burnells sued those involved, including the humane society and state hearing officer, for violation of civil rights under § 1983. The original complaint was dismissed but an amended complaint was filed in an effort to properly state a claim. The defendants again moved to dismiss.

The Burnells alleged that they were subject to double jeopardy because both a forfeiture procedure and criminal procedure were commenced. The court held that that did not constitute double jeopardy because a forfeiture proceeding does not determine guilt.

The Burnells also alleged that the costs assessed for keeping the horses were excessive and thus violated the Eighth Amendment. The court held that the assessment of costs did not constitute an excessive fine.

The Burnells argued that the seizure of the horses violated the Fourth Amend-ment because the seizure was not based on reasonable grounds. The court held that the amended complaint stated a claim.

The court addressed whether the Humane Society officers were acting under color of state law. The court determined that they were not directly involved in the seizure of the horses, and therefore they were not. The Humane Society itself, however, could be alleged to be acting under the color of state law with regard to its role in the seizure.

2014

Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012), 2013 WL 203418 (W.D. Okla. 2013), aff’d, 777 F.3d 1073 (10th Cir. 2014)

Owner’s horses were seized and court required bond for maintenance cost as condition of not forfeiting horses. No bond was posted and horses were forfeited.

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Owner subsequently brought a § 1983 action for wrongful forfeiture of the horses and for Fourth Amendment violations. The court of appeals held that the forfeiture action barred because it was part of state court proceeding. It reversed as to the Fourth Amendment claims, holding that such an action was not barred because did not depend on state court proceeding.

On remand, the district court dismissed the Fourth Amendment claims based on the doctrine of issue preclusion, as the state court had determined that probable cause existed to issue the search warrant.

The Tenth Circuit affirmed, noting that the constitutional question could have been raised in the forfeiture proceeding, and the decision in that proceeding was a final decision on the merits.


Trainer was accused of sexually harassing females at Philadelphia Park Race-track. The Racing Commission issued a Notice of Ejection, ejecting him from the grounds for ten years. After a hearing, the ejection was affirmed. On appeal, the trainer argued that the Commission had no authority to eject him because the conduct was unrelated to racing. The state court held that the Commission had the authority to eject him, given the necessity of controlling behavior at a licensed facility. The state court also rejected the contention that the hearing officer should have admitted evidence that criminal charges had been dropped. Guerro v. Dep’t of Agriculture, 2013 WL 6578970 (Pa. Cmwlth. 2013). After losing on his state court appeal, the trainer brought a civil action against the track and the horsemen’s association, claiming antitrust violations and civil rights violations under § 1983. His theory was that he was by far the most successful trainer at the track, and other envious trainers conspired to trump-up the charges to remove him as a competitor, causing him serious financial loss. The court sustained a motion to dismiss. It held that the claims were barred by the Rooker-Feldman doctrine because the state court had already decided the propriety of his ejection. Further, the court held that the antitrust claim failed to state antitrust injury or the relevant market. The court also ruled that the trainer failed to allege concerted conduct necessary to show a contract, combination or conspiracy, noting that the Racing Commission found that the horseman were not involved in the decision to eject. The civil rights claim failed because the track was not acting on behalf of the state, and the official who ejected him, who was a peace officer for the state, was not acting as a peace officer for the state.

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Mullins v California Horse Racing Bd., 2014 WL 1046104 (Cal. Ct. App. 2014)

Trainer Jeff Mullins sued the California Horse Racing Board for violation of his civil rights in connection with disciplinary proceedings the Board was taking. After a hearing, a judgment and order of administrative mandamus was entered in favor of Mullins and the Board appealed. The appeal was dismissed because the judgment did not dispose of all claims, and thus the appeal was premature.

2013

Adamo v. Dillon, 900 F. Supp. 2d 499 (M.D. Pa. 2012), aff’d 539 F. App’x 51 (3d Cir. 2013)

Adamo, a licensed trainer, and Gill, a licensed owner, were ordered ejected from Penn National because of concerns relating to a potential jockey’s boycott. No pre-ejection hearing was held. There was no claim that they violated any racing regulations; only that their presence was inconsistent with the orderly conduct of the race meeting. Adamo appealed promptly, Gill did not. Neither received a post-ejection hearing. Adamo later received a demand that he appear at an interview. When he did not attend, his license was summarily suspended.

Adamo and Gill sued the officials involved in federal court under 42 USC § 1983 for violation of their due process rights. The court conducted a bench trial, after which the officials moved to dismiss based on qualified immunity. Despite the fact that the officials had not raised this as a defense at any previ-ous point, the court granted the motion. The district court held that qualified immunity existed because no clearly established statutory or constitutional right was violated. As for the pre-ejection suspension without a hearing, the court accepted the need of the officials to act quickly. As for the lack of a post-ejection hearing, the court excused the lack of a hearing with regard to the trainer because the trainer and the racing authorities were attempting to resolve the matter. As for the owner, he failed to appeal in time to avail himself of the hearing procedure.

With regard to the trainer’s suspension, the court noted that the racing officials were acting in accordance with the regulation, relying on a previous decision of the Pennsylvania state court.

The court of appeals affirmed, agreeing with the district court that the late assertion of qualified immunity did not prejudice the plaintiffs. It further held that Gill was not deprived of procedural due process because Gill failed to avail himself of the procedure for a hearing after an ejection.

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Kanciper v. Suffolk County Soc’y for the Prevention of Cruelty to Animals, 722 F.23d 88 (2d Cir. 2013) and Kanciper v. Lato, 2013 WL 5963080 (E.D.N.Y. 2013)

The SPCA received complaints about the treatment of horses and dogs on the Kanciper’s farm. It obtained and executed search warrants. The conviction was reversed.

Kanciper sued the SPCA in state court. He also sued in federal court under § 1983 for civil rights violations. The district court dismissed the federal case on the basis of impermissible claim-splitting.

The court of appeals reversed, holding that the claim-splitting theory did not apply.

In the second suit Kanciper sued the district attorneys for their role in creating the affidavits to obtain a search warrant, alleging civil rights violations. The district attorneys moved to dismiss on the basis of immunity. The court held that the claim to the extent it alleges wrongful participation in the obtaining of warrants was barred by the defense of absolute immunity. With regard to the allegations based on the participation in the search and seizure, the district attorneys did not have absolute immunity, but may have qualified immunity, although he court did not dismiss those claims on a Rule 12 motion.

LoCastro v. Cannery Casino Resorts, LLC, 2013 WL 1748347 (W.D. Pa. 2013)

Former horse owner and trainer was ejected from casino and banned from racing at the adjacent track, the Meadowlands, due to disruptive actions at the poker table. He sued the Meadowlands alleging violation of the Americans with Disabilities Act, claiming he was discriminated against because of his bipolar disorder. The court held that he sufficiently pled a claim under the ADA because his Social Security disability evidenced his disabled status. He also asserted a claim for violation of his constitutional rights under 42 USC § 1983. The claim was dismissed because the action of the Meadowlands did not constitute state action. The handling of funds for the state by the Mead-owlands was insufficient state action.

Schulz v. Genregske, 2013 WL 136230 (E.D. Mich. 2013)

Horse owner brought a civil rights claim under 42 USC § 1983 against animal control officers for seizure of her horses and dogs. With regard to the claim of an illegal search, the court granted the defendants summary judgment because the animal owner did not reside at the premises searched, and thus did not have standing. With regard to the claim for procedural due process, the court

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denied summary judgment because the post-seizure procedures mandated by state law were not followed.

Williamson v. Curran, 714 F.3d 432 (7th Cir. 2013)

Williamson possessed a horse that had allegedly been stolen. A stable owned by her husband retained the horse pursuant to an agister’s lien for unpaid board. Williamson was arrested for horse theft but later acquitted because the court found that she had no intent to permanently keep the horse. She sued the sher-iff’s deputies under 42 USC § 1983 for violation of her constitutional rights. The district court dismissed the case on the pleadings. The court of appeals affirmed because the arrest warrants were facially valid, and the deputies had probable cause to believe that the stable was wrongfully possessing the horse and that she was involved in the stable.

2012

Canning v. Poole, 2012 WL 5198453 (E.D. Ky. 2012)

Horse owner sued veterinarian and veterinarian’s lawyer under 42 USC § 1983 for filing an “unlawful” veterinarian’s lien on her horses. Her Fourth Amend-ment claim was dismissed on summary judgment because the defendants were not acting under color of state law despite being state licensed. The court rejected the procedural due process claim because the actual seizure of the horses was not pursuant to, or authorized by, the lien and warrant. The court denied several other claims as well, but did not dismiss the claim for breach of an oral contract with the veterinarian, who was alleged to have performed unauthorized services.

Dye v. Office of the Racing Comm’n, 702 F.3d 286 (6th Cir. 2012)

Racing stewards sued Racing Commission official for civil rights violations, claiming adverse employment actions were taken in retaliation of their political speech and political affiliation. The district court granted summary judgment to the defendants. The court of appeals affirmed in part and reversed in part. With respect to the political speech claims, it determined that the speech was not protected speech, and thus upheld the summary judgment. With respect to the political affiliation claim, the court of appeals reversed because some evidence was presented that the adverse action was taken as a result of their affiliation with the Republican Party.

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Emmerick v. Wisconsin, 2012 WL 1135930 (W.D. Wis. 2012)

Horse owner was charged but after three trials was not convicted of animal cruelty. He sued Wisconsin and state officials for seizing his horses. The court dismissed the claim against the state on 11th Amendment immunity grounds. With respect to the claims against individuals, the court held that a warrantless seizure was not a constitutional violation as long as there was an adequate post-deprivation procedure to remedy the loss of the property. Because there was such a procedure in Wisconsin, there was no constitutional violation.

Moreno v. Penn Nat’l Gaming Inc., 904 F. Supp. 2d 414 (M.D. Pa. 2012)

Trainer was ejected from track without a hearing after syringes were found. The trainer brought a federal action against the track under 42 USC § 1983. The track resisted a motion for an injunction on the basis that no state action was involved. The court held that there was a sufficient showing of state action because the track was acting to enforce state regulations, and state investigators had been involved. The court also held that the trainer showed a likelihood of success on the merits, because it appeared he was entitled to a hearing before the Racing Commission before he was ejected.

In the second ruling the district court addressed the Racing Commission’s motion to vacate the prior rulings on the basis that it subsequently held a hearing, which upheld the ejection sanctions. The trainer countered that the hearing was a “farce” because of the behavior of the hearing officer that was antagonistic toward the trainer. The court held that he should have appealed under the Pennsylvania procedures, and thus would not entertain the argument.

The court did, however, determine that it could consider the challenge by the trainer that the Pennsylvania rule was unconstitutional as violative of due process. The court held that the Younger doctrine did not require it to abstain, and that the trainer showed sufficient injury to have standing. The court held that the ejection rule was unconstitutional because it failed to assure a prompt post-deprivation hearing.

Moser v. Pennsylvania Soc’y for the Prevention of Cruelty to Animals, 2012 WL 4932046 (E.D. Pa. 2012)

Horse owner sued Pennsylvania SPCA under 42 USC § 1983 for violating her Fourth Amendment rights when searching the farm and seizing a mare without a warrant. On summary judgment, the trial court ruled that the defendants had probable cause and that there was a good faith belief that an exigency existed due to the observed condition of the mare. Significant to the court was the

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efforts a defendant went to to attempt to contact the mare owner. The owner also claimed that her Fourteenth Amendment rights were violated because no hearing was held with respect to the seizure. The court dismissed that claim because post-seizure hearing rights were available and the owner did not take advantage of them.

Pena v. New Meadowlands Racetrack, LLC, 2012 WL 95344 (D.N.J. 2012)

Standardbred trainer was excluded from the Meadowlands by decision of the director of racing. He sued for violation of his civil rights, contending that the decision was essentially state action. On a motion for preliminary injunction, the court held that Pena did not show state action was involved. Although the Meadowlands facility was owned by the state, it was nominally leased to an operating company. This was insufficient to show a “close nexus” between the state and the track. In addition, the action was not “fairly attributable” to the state, despite the ownership, pervasive regulation, and flow of money to and from the track to the state.

2011

Bell v. Tampa Bay Downs, Inc., 2011 WL 6718266 (M.D. Fla. 2011)

Jockey sued Tampa Bay Downs for banning him from the track under the allegation that he was involved in fixing a horse race. He alleged tortious in-terference and violation of his civil rights under 42 USC § 1983. The district court dismissed the § 1983 action because, although the track was regulated by the state, the banning did not involve state action. The court did not dismiss the tortious interference claim, however. It held that although the track had a qualified privilege to exclude jockeys, there was an exception for malice, which could be shown by acting without reason or investigation.

Bloom v. Miami-Dade County, 816 F. Supp. 2d 1265 (S.D. Fl. 2011)

Bloom’s animals were seized, and he was arrested and prosecuted, for animal cruelty. He brought a civil rights action against the arresting officers. The dis-trict court dismissed the action based on qualified immunity and the existence of probable cause to arrest.

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Garcia v. New York Racing Ass’n, 2011 WL 3841524 (N.D.N.Y. 2011)

Terminated Mexican NYRA employee sued NYRA and others for civil rights violations under 42 USC § 1983 and for wrongful termination under federal and state laws. The court held that the re-formed NYRA did have a sufficient symbiotic relationship with the state to justify a claim of state action. How-ever, there was insufficient evidence of violation of the employee’s freedom of speech, and thus NYRA’s motion to dismiss was granted.

Gleason v. Gilmore, 2010 WL 5017930 (D. Or. 2011)

Trainer was suspended for allegedly misrepresenting prior convictions and arrests on his license application. He appealed the suspension to the Racing Commission, and after losing that, to the Oregon Court of Appeals. While the appeal was pending, he filed a § 1983 action against the employees of the Racing Commission for violating his civil rights. The case was removed to federal court. The court granted summary judgment to the defendants on the basis of res judicata.

Leachman v. Hernandez, 2011 WL 2559837 (Mont. 2011)

The state brought neglect charges against horse owner and judge ordered the horses removed. The horse owner sued the judge in federal court for violating his constitutional rights. The federal court dismissed the case on the basis of judicial immunity.

Mahnke v. Garrigan, 2011 WL 1985550 (7th Cir. 2011)

Sheriff seized horses that appeared to him to be neglected. The owner was charged with animal neglect, but the charges were dismissed. However, the sheriff counterclaimed for the cost of keeping the horses, and the trial court determined that because there was probable cause to seize the horses, the costs were recoverable. On appeal, the court of appeals reversed, finding there was no probable cause.

The owner sued in federal court for constitutional violations. The district court held that the sheriff had qualified immunity. On appeal, the court of appeals affirmed on the basis that the sheriff did have probable cause to seize the horses, and the state court determination did not constitute issue preclusion on that matter with respect to the sheriff.

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2010

Dunham v. Kootnai County, 2010 WL 556803 (D. Idaho 2010)

Horse owner, acquitted of animal cruelty, sued animal control officers for violating his Fourth Amendment rights when they searched the farm where his horses resided and seized the horses. The court determined that based on the open fields doctrine, the plaintiff did not have an expectation of privacy. In so doing, the court rejected as a matter of law that the doctrine of “curti-lage” applied. With regard to the seizure, the “plain view doctrine” permitted the seizure without a warrant. The court also rejected the claim for malicious prosecution and other claims.

Northville Downs v. Granholm, 622 F.3d 579 (6th Cir. 2010)

Michigan voters passed Proposition 1, authorizing lotteries, and owners of financially-affected racetracks sued in federal court under § 1983, that the enactment violated their federal constitutional rights under the Equal Protection and Commerce Clauses. The district court granted judgment on the pleadings to the state, and the court of appeals affirmed.

Sclafani v. Spitzer, 2010 WL 3386022 (E.D.N.Y. 2010)

When NYRA was subject to federal criminal scrutiny, they hired an investigator and obtained the arrest of two employees that operated the weighing scales. The multiple charges were dismissed as not being supported by evidence. The employees then sued NYRA and the prosecutors for violating their civil rights, contending that they had just been set up to give NYRA the appearance that it was cleaning up racing. The district court granted summary judgment to the defendants on the basis of immunity.

Trexler v. Giese, 2010 WL 3220080 (D.S.C. 2010)

The Trexlers’ horses were seized and they sued almost everyone involved under 28 USC § 1983 under various theories. The court refused to grant the Humane Society defendants’ motion to dismiss, holding that their conspiracy to seize the Trexlers’ horses with knowledge of facts that would exonerate the Trexlers stated a claim, despite the state’s charitable immunity statute.

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Vaders v. Pennsylvania Dep’t of Agriculture, 2010 WL 1053301 (E.D. Pa. 2010)

Trainer Jayne Vaders was suspended by the stewards following a “Class III” drug positive after a race. She appealed the decision to the Commission and lost, then appealed to the Pennsylvania Commonwealth Court, arguing selective enforcement. The Commonwealth Court ruled that the stewards did not abuse their discretion. She then sued Pennsylvania and the stewards in federal court under § 1983, arguing selective enforcement as a result of gender discrimina-tion. The suit against Pennsylvania was dismissed on the basis of sovereign immunity. The suit against the stewards was dismissed based on collateral estoppel, as she had made the same arguments in state court.

Vos v. Cordray, 719 F. Supp. 2d 832 (N.D. Ohio 2010)

Horse owner alleged that the search of his property and taking of his horses violated his constitutional rights. He brought a § 1983 action against all manner of defendants. The court dismissed the action for a variety of reasons, includ-ing immunity under the Eleventh Amendment as to officials in their official capacities, prosecutorial and judicial immunity, and, as to the humane society, not acting under color of state law.

2009

Reams v. Irvin, 561 F.3d 1258 (Ga. Ct. App. 2009)

Reams’ horses were seized by Georgia officials, in accordance with the Georgia Humane Care for Equines Act, after a veterinary inspection revealed they were being deprived of food and water. While subsequent administrative proceedings were occurring, Reams sued the officials under 42 USC § 1983 for violating her due process rights. The district court held that no constitutional violation occurred, and thus the officials were entitled to qualified immunity.

On appeal, Reams argued that the lack of a predeprivation hearing violated due process. The court of appeals disagreed. It held that the Georgia Act pro-vided adequate safeguards. Although deprivation of property without a prior hearing typically violates due process, under the Georgia Act the risk of a wrongful deprivation was low, and procedural safeguards were adequate given the possibility of further harm. It noted that the state’s interest in preventing inhumane treatment of animals is undeniably substantial.

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Civil Rights

2008

McPeek v. Deputy Attorney General of New Jersey, 2008 WL 5273081 (N.J. Super. Ct. App. Div. 2008)

Trainer Kenny McPeek was suspended by the stewards for thirty days for enter-ing an unfit horse in a race. The Racing Commission increased the suspension to one year. McPeek appealed, and the ALJ recommended that the charges be dismissed. The Commission adopted the recommendation.

McPeek sued in federal court for violation of his civil rights under both federal and state law. The federal judge dismissed the case because (1) McPeek did not show that the hearing was inadequate; (2) no property interest was affect-ed because the suspension was stayed; and (3) the defendants had qualified immunity. The state claims were dismissed without prejudice. McPeek sued in state court, but because the state constitution afforded no more protection than the federal constitution, McPeek’s suit was dismissed on res judicata and collateral estoppel grounds. That decision was upheld on appeal.

2007

Allen v. Pennsylvania Soc’y for the Prevention of Cruelty to Animals, 488 F. Supp. 2d 450 (M.D. Pa. 2007)

Farmer engaged in neglected horse rehabilitation had horses seized after a search conducted pursuant to a warrant and was charged with cruelty. Initial charges were dismissed, and his conviction on reinstated charges was reversed based on double jeopardy. He sued in a § 1983 action for constitutional rights violations based on the seizure of the horses and the meritless prosecution. The federal court ruled that he stated a proper § 1983 action based on the search because the state agents acted under color of state law, and the warrant may have been issued without probable cause. However, the claims relating to the retention of the horses were dismissed, because the farmer could not establish a property right in the horses as a result of the state court ruling.

Daley v. Gorajec, 2007 WL 2286132 (S.D. Ind. 2007)

Trainer Noel Daley entered several horses in Indiana races then applied for a racing license in Indiana. His application was summarily denied by Joe Gorajec, the Executive Director of the Indiana Racing Commission. He had determined from ARCI that Daley had a previous suspension in New Jersey. Daley and his owner sued Gorajec and the members of the Racing Commis-sion under 42 USC § 1983 for violation of constitutional rights, seeking an injunction and damages.

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The court dismissed the injunction claim because Daley did not show that he could not reapply for a license, noting that the license was “refused” rather that “denied.” The court dismissed all claims against the Commission members because they did not participate in the decision, therefore could not have been acting in their individual capacities. The court dismissed the claim brought by the owner of the horses because it did not have a direct interest in the license.

The court granted summary judgment on most of the substantive claims. The claim for violation of the Equal Protection Clause was dismissed on summary judgment because Daley showed no evidence he was a member of a protected class or that there was ill-will by Gorajec toward Daley. The claim for violation of due process was dismissed on summary judgment because the applied-for racing license was not a property right that he had a legitimate claim of en-titlement to, because the Commission had discretion to deny a license. The claim for violation of the Privileges and Immunity Clause was not dismissed, because Daley was entitled to determine if Indiana discriminated against out-of-state applicants in favor of in-state applicants.

However, summary judgment was granted to Gorajec on the basis of qualified immunity, because no violation of a “clearly established right” had occurred.

Jackson v. Placer County, 2007 WL 1429827 (E.D. Cal. 2007)

Horse owner’s horses were seized by animal control officers after warrant was issued. Horse owner, although she pled guilty to animal neglect, sued for violation of her constitutional rights, and for conversion and other state law claims. The court granted summary judgment to defendants on some claims, but held that certain claims for violating due process survived. Also, certain defendants were not entitled to qualified immunity.

2006

Panetta v. Crowley, 460 F.3d 388 (2d Cir. 2006)

Police officer arrested horse owner for cruelty to animals based on an opinion from two lay observers who purported to be knowledgeable about horses, one of which purported to be associated with the local humane society. The charges were dismissed when it was determined that the horse’s condition was normal for a horse that age. The owner sued the officer under 42 USC § 1983 for false arrest and was awarded a nominal judgment at trial. On appeal, the court reversed and held that the officer had probable cause to arrest because of the officer’s reliance on the lay witnesses, even though the officer ignored the explanation from the owner concerning the horse’s appearance and that the horse was under veterinary care.

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Civil Rights

2005

Lee v. Walters, 433 F.3d 672 (9th Cir. 2005)

The Lees were part owners of The New Portland Meadows track. After taking funds from the purse account to pay other obligations, they were ordered by the Oregon Racing Commission to be excluded from the track. The exclusion order was pursuant to the Oregon statute that provided that a person could be excluded for enumerated reasons, including “any person whom the Commission deems detrimental to the best interest of racing.”

The Lees challenged their exclusion and sought damages in a § 1983 action in federal court. The district court ruled that statute was unconstitutional be-cause the “detrimental to the best interest of racing” standard was vague and arbitrary. However, after a trial, the jury awarded the Lees nothing in the way of damages, so they appealed. On appeal, the Ninth Circuit agreed with the district court that the language was unconstitutionally vague, but disagreed that the statue as a whole was unconstitutional because the language could be severed. Because other standards in the statute justified the exclusion, the decision was not reversed.

McClendon v. Story County Sheriff’s Office, 403 F.3d 510 (8th Cir. 2005)

Animal control officers seized horses pursuant to a warrant allowing the seizure of ill horses. Owner of the horses sued under 28 USC § 1983 for violating her Fourth Amendment rights, asserting that the seizure of all horses exceeded the scope of the warrant.

The Eight Circuit held that no constitutional rights were violated because the officers relied on the opinion of a veterinarian that all the horses were in danger. Thus, the officers were entitled to qualified immunity.

State v. Ziemann, 705 N.W.2d 59 (Neb. Ct. App. 2005)

Woman was convicted of cruelty and neglect of animals after sheriffs seized emaciated horses on farmland not owned by the woman. She appealed her conviction on the basis that the seizures were unconstitutional and the evi-dence should therefore have been suppressed. The court of appeals affirmed the conviction, holding that the defendant’s expectation of privacy was very low on open land, and thus the search did not violate the Fourth Amendment.

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Thompson v. Dixon, 2005 WL 1773980 (E.D. Pa. 2005)

Trainer was suspended for administering clenbuterol within 24 hours of post time to horses on five different occasions. The suspension was imposed by the stewards and upheld by the Racing Commission after a hearing. Later, the trainer petitioned the Racing Commission to reopen the proceedings in light of a recent scientific report that would refute the initial determination. The Racing Commission refused. The trainer sued in federal court for violation of his civil rights.

The federal district court dismissed the claim under the Younger abstention doctrine, noting that the trainer failed to pursue state court review of the Racing Commission’s refusal to reopen the case.

2004

Hegarty v. Addison Co. Humane Soc’y, 848 A.2d 1139 (Vt. 2004)

Horse owner challenged the summary procedure for seizing an apparently mistreated horse as unconstitutional and a conversion of property. The Vermont Supreme Court rejected the challenge, because the deprivation of property in such fashion was necessitated by quick action, and the deprivation was neither lengthy nor severe, and sufficient safeguards existed to address the risk of an erroneous deprivation.

Holton v. Indiana Horse Racing Comm’n, 2004 WL 1689390 (S.D. Ind. 2004)

Racehorse owner was upset with stewards’ ruling of an infraction and reducing horse’s finish from second to third place. An appeal by the Racing Commission was denied, so owner sued in federal court for an injunction and for violation of his civil rights under 42 USC § 1983. The court granted the Commission’s motion to dismiss the injunction action, stating that such a suit was barred by Eleventh Amendment sovereign immunity as the Commission was an arm of the state. The § 1983 action against the individual official was also dismissed, on the basis that denial of an appeal did not violate an established constitutional right.

The Seventh Circuit, however, held that the district court was incorrect be-cause the plaintiff was seeking damages – not a request for review – in the § 1983 action, thus the Eleventh Amendment did not apply. Unfortunately for the claimant, the Seventh Circuit determined that he should lose on the merits because there was no constitutional right to an appellate review of an administrative decision.

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Moran v. City of New Rochelle, 346 F. Supp. 2d 507 (S.D.N.Y. 2004)

Landowners sued the City of New Rochelle and city officials for allegedly tar-geting them by passing zoning regulations to prohibit them from keeping horses on their property. The landowners alleged a host of violations of constitutional protections, actionable under 42 USC § 1983. Most claims were dismissed and individuals were determined to have qualified immunity. However, the claimed violation of the Equal Protection Clause survived summary judgment, the judge noting that there was evidence that the ordinance was specifically targeted at the landowners, and selectively enforced. The court concluded that this was sufficient evidence of malicious bad faith necessary to make a claim for an Equal Protection violation.

Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004)

Racehorse owner Robert Perez requested a stewards’ hearing on his assertion that the stewards were fixing races by manipulating the number of horses in certain races. At the meeting, he became verbally abusive and disruptive, and after being warned, was fined $5,000, later reduced to $3,000. The fine was authorized by a regulation prohibiting “any action detrimental to the best in-terest of racing.” Perez sued the Racing Board in federal court, asserting that his First Amendment and due process rights were violated. The district court granted summary judgment to the Racing Board.

The Second Circuit upheld the summary judgment. It ruled that Perez’ First Amendment rights were limited because the meeting was a non-public forum. His conduct made the meeting impossible to conduct. He also challenged the regulation as void for vagueness. The court rejected that challenge because such a restriction must be looked at in the context of the “norms of the racing community” and because Perez was given a warning. One of Perez’ more interesting arguments was that the harness racing regulations specifically prohibited abusive language, but the Thoroughbred regulations did not. The Second Circuit rejected this argument in a footnote, stating that the “acute problems attending harness racing are distinct from those that might plague the Thoroughbred industry.”

2003

Baffert v. California Racing Bd., 332 F.3d 613 (9th Cir. 2003)

Trainer Bob Baffert was suspended by the California Horse Racing Board when the urine sample and the split sample tested positive for morphine, which Baffert attempted to explain was a result of environmental contamination. A blood sample was also taken, but at the Board hearing six months later,

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Baffert learned that the blood sample had been destroyed. He sued to enjoin the Board under 42 USC § 1983. The district court accepted jurisdiction and granted the injunction. The Ninth Circuit reversed on the basis that the Younger v. Harris abstention doctrine applied. The Younger doctrine holds that there is an exception to federal jurisdiction when there is a pending state proceeding that implicates important state interests and provides the party an opportunity to raise federal claims.

Spencer v. Placer Co. Animal Control, 2003 WL 1562600 (Cal. Ct. App. 2003)

Twenty-eight horses were seized from Spencer by animal control officers on the basis that they were malnourished and prompt action was needed to protect the horses. Spencer claimed that the statute which allowed this seizure was unconstitutional in failing to place the burden on the government. The court held that the statute did place the burden on the government, and thus was constitutional. Further, the government met that burden.

Tackett v. Marion County Fair Bd., 272 F. Supp. 2d 686 (N.D. Ohio 2003)

Horse trainer was banned from fairgrounds after getting into an altercation. Four years later, he sued under 42 USC § 1983. His suit was dismissed based on the 2-year statute of limitations. His argument that the statute was tolled during the “continued violation” period was rejected.

2002

Baldridge v. Cordes, 85 S.W.3d 511 (Ark. 2002)

Officer Jana Cordes arrested Jeffrey Baldridge for driving a motor vehicle while intoxicated, careless driving of a vehicle, and having no proof of auto-mobile insurance.

However, Cordes was riding a horse not driving a car! Cordes charged Baldridge with these traffic offenses as a result of Baidridge’s riding a horse alongside the highway when his horse saw something causing it to shy onto the road and hit the mirror of a car traveling on the highway. Officer Cordes thought Baldridge appeared drunk, but the blood alcohol test showed negligible alcohol. The charges were dropped.

An understandably steamed Baldridge sued Officer Cordes for violating his civil rights.

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The Supreme Court of Arkansas upheld the dismissal of the suit based on the qualified immunity of Officer Cordes. They reasoned that because Baldridge appeared drunk, the officer could have arrested him for public intoxication (although he had a negligible blood alcohol level), so just because she got the charge wrong does not matter.

Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231 (3d Cir. 2002)

Charles and Wendy Crissman were in the harness racing business. Shortly after Dover Downs hired a new general manager, the general manager sent to each of the Crissmans a letter informing them, without explanation, that they could no longer race at Dover Downs. The track refused to explain the exclusion. In later deposition testimony, the manager explained that he had heard rumors of doping and financial irresponsibility.

The Crissmans sued, claiming that their civil rights were violated and that the action of Dover Downs constituted state action. The Crissmans argued that the extensive state regulation and the flow of funds between Dover Downs and the states by virtue of video lottery operation made their exclusion “fairly attributed to the state.” Both the harness racing and the slot machines were heavily regulated by the state. The Third Circuit initially agreed with the Crissmans, but the en banc panel set aside that decision and stated that the actions of Dover Downs was not a state action.

In so doing, the en banc panel held that the extensive regulation of the state, and the flow of funds did not rise to the “symbiotic relationship “ that was deemed by the Supreme Court to be state action in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The court concluded: in summary, the presence of both these elements – regulation and flow of funds – that are separately unpersuasive in the state action inquiry does not amount to more than each alone; the combination brings no greater result – namely, no state action. Delaware is not associated in the harness racing or the video lottery operation, nor are the monies that flow to the state tied in any way to the conduct the Crissmans complained of. The deeper involvement and “inner dependence” present in a unique way in the fact pattern considered in Burton simply are not present here.

Pennington v. Penner, 207 F. Supp. 2d 1225 (D. Kansas 2002)

Pennington was subject to an investigation for cruelty to horses by Penner, an animal control officer in Kansas. He was eventually arrested and his horses were seized. Pennington sued the county attorney, Thuston, and the county for violating his civil rights.

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Thuston and the county contended on a motion to dismiss that he had qualified and absolute immunity. The court held that the decision of Thuston to prose-cute was protected by absolute immunity. However, Pennington claimed that because Thuston went onto the property to investigate, his immunity did not extend to his role as an investigator. The court held, though, that the investi-gation was insignificant to the decision to prosecute. The county was likewise dismissed because it was not a proper party.

State v. Nance, 562 S.E.2d 557 (N.C. Ct. App. 2002)

Carolyn Nance was found guilty of six counts of cruelty to animals. Before the trial, she made a motion to suppress, asserting that the animal control offi-cer’s seizure of six horses owned by her were seized in violation of her Fourth Amendment rights. The trial court denied the motion to suppress.

On appeal, the North Carolina court of appeals stated that the animal control officer’s viewing of the horses in a field did not violate the Fourth Amendment, because the horses were kept in an open paddock and were visible to anyone outside of the fence. However, the Fourth Amendment did not permit the animal control officer to enter the property and seize the horses without first securing a warrant. Although the animal control officer noted that the horses were in a terrible condition, that did not justify the seizure of the animals when sufficient time was available to obtain a warrant. The court rejected the notion that an open paddock was an accessible area, and rejected the notion that the need to seize evidence outweighed the defendant’s rights under the Fourth Amendment.

2001

Siebert v. Severino, 256 F.3d 648 (7th Cir. 2001)

Horse owners’ suit under 42 USC § 1983 against humane investigator, with the Illinois Department of Agriculture, was dismissed by the district court. The horse owners alleged that the search of the fenced-in paddock, turn-out area, and barn without a search warrant violated their constitutional rights. The Seventh Circuit reversed, holding that the owners had a legitimate expectation of privacy in these areas. The court further held that the investigator was not entitled to qualified immunity. The warrantless seizure of the horses was also determined to be unconstitutional.

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Civil Rights

1999

Equus Associates Ltd. v. The Town of Southhampton, 37 F. Supp. 2d 582 (E.D.N.Y. 1999)

Landowner engaged in lengthy administrative and legal proceedings to have the town issue a permit for him to operate a polo pony facility. Following appeals to the state court, the town was directed to issue a permit, and impose restrictions. The town failed to act promptly, and the landowner filed a com-plaint against the town officials for violation of his civil rights, specifically, Equal Protection. The district court granted the defendants summary judgment because the landowner failed to show that his operation was “similarly situated” to other property where permits were granted.

Murphy v. NYRA, 76 F. Supp. 2d 489 (S.D.N.Y. 1999)

New York equine lawyer Karen Murphy was the General Counsel for the New York Thoroughbred Horsemens’ Association (“NYTHA”) and held a license issued by the New York State Racing and Wagering Board (“NYSRWB”), and also represented individuals associated with horse racing. The New York Racing Association “(NYRA”) is a non-profit corporation franchised by New York to operate Belmont Park, Aqueduct, and Saratoga.

In 1998, Murphy undertook the representation of veterinarian Dr. Michael Galvin, who had been subject to a disciplinary proceeding by NYRA. Murphy sued NYRA for civil rights violations in federal court on behalf of Dr. Galvin. Because of this representation, the NYTHA Board voted to terminate Murphy as its General Counsel, because of her representation of Dr. Galvin. This was apparently a result of two NYRA board members, Noe and Meyocks, having put pressure on NYTHA. She was also denied consideration for the position as General Counsel for the New York Thoroughbred Breeders (“NYTB”), also because of her representation of Dr. Galvin. This apparently resulted from a NYTB board member, Broman, receiving pressure from Noe not to appoint Murphy General Counsel. To add insult to injury, Murphy was ousted from Belmont where she was present to meet with Dr. Galvin and other clients.

Murphy sued NYRA and its board members, as well as the board of NYTHA, in federal court, alleging that her civil rights were violated, and for tortious interference. The NYRA board members moved to dismiss. The Southern District first addressed Murphy’s civil rights claim. Despite precedent from the Eastern District of New York to the contrary, the Southern District held that the actions of NYRA and its board did not constitute “state action.” It further held that NYRA and its board did not have a duty to prevent Noe and Meyocks from violating Murphy’s constitutional rights. The court further rejected Murphy’s argument that the Board had the responsibility to intervene

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to prevent Noe and Meyocks allegedly unconstitutional activity, including the causing of Murphy’s ejection from Belmont. The Southern District also held that even if a claim had been stated for civil rights violations, NYRA’s board would have “qualified immunity” because they “need the encouragement and protection” of qualified immunity.

Pachero v. Federacion Ecuestre, De P.R. 34 F. Supp. 2d 101 (D. P.R. 1999)

Ms. Cesarski was barred from an equestrian facility as a result of an alterca-tion her father had with a riding instructor. Ms. Cesarski sued under 42 USC § 1983 for violation of her civil rights. The court held that despite the fact that the facility was built with taxpayer funds and enjoyed certain tax advantages, the action of the board did not constitute the requisite state action required for such a claim.

Tennessee Downs, Inc. v. Gibbons, 15 S.W.3d 843 (Tenn. Ct. App. 1999)

Tennessee Downs sued in state chancery court under 42 USC § 1983 to enjoin the state attorney general from prosecuting it for operating a pari-mutuel race track. The prosecution was threatened when the Racing Commission was legislated out of existence. The court of appeals ruled that the chancery court had no jurisdiction to enjoin a threatened prosecution.

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Constitutional Law

CONSTITUTIONAL LAW

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Constitutional Law

2012

Gingerich v. Com., 382 S.W.3d 835 (Ky. 2012)

Amish group challenged Kentucky’s statute requiring slow moving vehicles to have a warning symbol as unconstitutional because it interfered with their practice of religion. The lower courts upheld the statute. The Kentucky Supreme Court noted that the statue was not directed to any religion, and therefore the test of constitutionality was whether it had any rational basis. As it clearly was related to highway safety, the statue was constitutional.

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Contracts

CONTRACTS

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Contracts

2018

Moore v. Roper, 2018 WL 1123868 (E.D. Okla. 2018)

Moore purchased a barrel-racing horse for his daughter for $100,000. The seller was represented by an experienced barrel-race horse appraiser and was experienced with horses herself. They supposedly represented that the horse had no history of difficult behavior and was well suited for a young rider. Af-ter the purchase, the horse failed to adequately perform. Upon investigation, the buyer determined that the horse had been treated with shoulder injections and had a hind leg fracture that may have not properly healed. Videos of prior competitions revealed some problems with performance. The purchaser and his agent sued for fraud, breach of implied warranties of fitness and merchant-ability, and breach of contract.

Defendants moved to dismiss for failure to state a claim. The court denied the motion. As for the fraud claim, there were sufficient facts pled to support the claim. Further, the assertion that the buyer did not sufficiently evaluate the horse prior to the sale does not provide a defense to fraud.

With regard to the implied warranty of fitness claim, there were sufficiently pled facts showing that the seller knew the purpose of the purchase, and was relying on the knowledge and skill of the seller and her agent in barrel racing.

With regard to the claim for breach of the warranty of merchantability, the court rejected the argument that a horse cannot be unmerchantable for psy-chological problems in this case because those problems may be related to a medical condition.

The court refused to dismiss the breach of contract claim, stating that the fail-ure to bargain in good faith knowing that there were problems with the horse stated a claim for breach of contract.

2012

Thoro-Graph, Inc. v. Lauffer, 2012 WL 5038254 (Ky. Ct. App. 2012)

James Lauffer bought a one-half interest in RACHEL ALEXANDRA for $500,000, and made a small fortune from the success of the filly. Prior to the purchase, Lauffer was a member of a joint venture that had been seeking to purchase a filly. One of the other members had contacted bloodstock agent Jerry Brown (Thoro-Graph), who sent his rates for advising purchasers. The rates were “5-5-5” (5% of the purchase price, 5% of earnings, and 5% of increased value). He recommended a few fillies to the members of the venture, including the filly RACHEL ALEXANDRA. Lauffer later asked about Brown’s com-

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mission rates, and found them unacceptable. Lauffer engaged another agent, but then decided to purchase 50% of RACHEL ALEXANDRA for himself.

Lauffer filed a declaratory judgment action seeking to determine that he did not owe Brown a commission. After a bench trial, the court determined that there was never an agreement between Lauffler and Brown. Therefore, Brown was denied the 5-5-5 commission (which would have been $271,000). But because Lauffer admitted that Brown’s advice entered into his decision to purchase RACHEL ALEXANDRA, the court awarded Brown a $25,000 commission on a quantum meruit basis, relying on evidence that 5% was a customary commission.

The Kentucky Court of Appeals affirmed. The court agreed that no agreement had been reached. It also rejected Lauffer’s cross-appeal contention that the “statute of frauds” (KRS 230.357(11)) barred any commission, because the fee was for advice, not a fee “in connection with any sale.”

Weddington v. Rudolph, 2012 WL 1029434 (Cal. Ct. App. 2012)

Weddington and Rudolph made an oral agreement concerning a race filly named ALICSON CAT, owned by Weddington. Rudolph contended it was management agreement wherein he would train and race the horse, then later split sale proceeds. Weddington believed Rudolph agreed to buy the horse for $160,000. The oral agreement was followed up with a written contract that was ambiguous and was altered upon execution. Rudolph took possession of the horse and endorsed the foal registration certificate to transfer the horse into his name. When Weddington tried to determine the whereabouts of the filly, he found out about the endorsement and that the filly had been entered in a claiming race. He sued for breach of contract and conversion.

The trial court admitted testimony about the transaction, and the jury found in favor of Weddington. On appeal, Rudolph challenged the admission of parol evidence. The court upheld the admission of evidence because the written agreement did not contain an integration clause and was very ambiguous. It also concluded that the jury was justified in reaching its verdict on breach of contract and conversion because Rudolph endorsed the certificate and entered the filly into a claiming race.

2011

Ruffu v. Haney, 2011 WL 359697 (Cal. Ct. App. 2011)

Ruffu, a horse trainer, became partial owner of a horse and took over training of the horse from another trainer. The prior trainer complained to the California Horse Racing Board, which brought a complaint against Ruffu. The stewards

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Contracts

ruled against Ruffu, ordering him to return the horse or be suspended. The decision was affirmed by an administrative appeal judge.

Ruffu later sued the co-owners for breaching the agreement with him. The trial court dismissed the complaint on the basis of collateral estoppel. The court of appeals affirmed. It held that the doctrine of collateral estoppel applied even though the prior proceeding was administrative, and the current defendants were not parties.

2010

Fifth Third Bank v. Waxman, 726 F. Supp. 2d 742 (E.D. Ky. 2010)

Waxman had horse loans with bank, and defaulted on them. The bank sued for the balance and to enforce guarantees. The bank filed a motion for summary judgment. Waxman defended on the basis that the bank breached its fiduciary duty in applying certain bonus proceeds to the loan balance rather than allowing them to be used to purchase horses, as allegedly promised. The court rejected this as a defense, stating that even if the bank had a fiduciary duty, the claim was more properly a counterclaim than a defense to the promissory note. The court also rejected the defense of breach of good faith and fair dealing because the bank acted in accordance with the terms of the loan agreements in applying the bonus money.

Waxman also claimed that the bank’s motion was barred by the doctrine of unclean hands. The court expressed doubt that an equitable doctrine could be a defense to a claim based in law, but stated the defense was nevertheless not available where the bank acted in accordance with the loan documents. The court also rejected the defense of failure to mitigate damages, because Waxman presented no evidence of reasonable steps the bank could have taken but failed to take in mitigation of its damages.

With regard to the guarantees, the court rejected that the allegation of an “overarching agreement” that the guarantees would not be enforced could be a defense to the enforcement of the guarantees, because the claim contradicted the terms of the guarantees.

Jarreau v. Quackenbush, 687 F. Supp. 2d 606 (M.D. La. 2010)

Plaintiff and defendant entered into an agreement for sole use of a horse for plaintiff’s daughter’s competitive riding. After defendant did not appear with the horse at one event, plaintiff sued for breach of contract. After a bench trial the court found that the agreement created a joint venture and that defendant breached it.

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Shellbird, Inc. v. Grossman, 2010 WL 2985208 and 2010 WL 5418886 (S.D. Ind. 2010)

Shellbird entered into a written contract to purchase an Arabian stallion for $4,500,000, to be paid in installments. The contract provided that Shellbird would receive “all outstanding breeding receivables on the horse.” It also contained a disclaimer of warranties.

After paying a little less than half the purchase price, Shellbird had not received any significant receivables. He sued the sellers for breach of contract based on an oral representation that the amount of the receivables was $440,000. He also sued for negligent misrepresentation, alleging that the seller’s agent represented that the horse had potential breeding value of $12 to $15 million. He further claimed unjust enrichment, to regain the purchase price paid.

The seller moved for summary judgment. The seller first claimed that the breach of contract claim was barred because the alleged oral representation as to the receivables was barred by the parol evidence rule. The court denied the motion as to this, holding that although the contract was unambiguous, it was incomplete in that the term “all receivables” was not defined, and thus parol evidence was admissible.

The court granted the motion as to negligent misrepresentation, holding that there was no justifiable reliance on the alleged representation, given the war-ranty disclaimer, the sophistication of the buyer, and the fact that the buyer had the stallion vetted. The court also granted the motion with regard to the unjust enrichment claim, holding that when an express contract governs the relationship, such an equitable remedy was unavailable.

The defendants brought a second motion for summary judgment on the con-tract claim, proffering additional evidence as to the value of the receivables.

2009

Esrick v. Mitchell, 2009 WL 2985679 (M.D. Fla. 2009)

The Esricks bought a show horse from the Mitchells (acting as broker for the owner) for $90,000. They contend they were led to believe the horse was a 9-year-old, but after accepting the horse and transporting it to Colorado, they found out it was an 11-year-old. They attempted to revoke the purchase. They believed the Mitchells agreed, but when the Mitchells did not follow through, the Esricks sued for breach of contract and misrepresentation.

Both sides moved for summary judgment. The court denied both motions on the basis that material facts existed as to what was represented before the

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purchase, and whether the Esricks had nonetheless accepted the horse after knowing the true age.

FDIC v. Jeff Miller Stables, 573 F.3d 289 (6th Cir. 2009)

General partner of Standardbred racing operation pled guilty of money launder-ing, and receiver for bank sought to recover from second general partner and the operation itself. The court of appeals partially upheld a summary judgment against horse racing operation that benefited to the tune of $1,904,340 from the investment in the amount of $65,000 of embezzled funds.

Sioux Breeders, LLC v. GeoStar Financial Services Corp., 2009 WL 185724 (E.D. Mich. 2009)

Part of the ClassicStar litigation. Sioux Breeders sued GeoStar for breach of a contract where it sold horses for working interests in a subsidiary of GeoStar. Sioux Breeders moved for summary judgment, but GeoStar defended on the basis that the horses were overvalued, thus the agreement lacked consideration. The court determined that additional briefing was needed.

Spayd v. Olde Stone Ranch Co., 2009 WL 1138048 (Az. Ct. App. 2009)

Spayd entered into an oral contract with Olde Stone to purchase a horse. Spayd made payments toward the purchase price, but never received the AQHA registration papers. Spayd sued for breach of contract, and was awarded damages after a bench trial. The appeals court upheld the decision because it was supported by the evidence.

2004

Leier v. Purnell, 2004 WL 2830645 (Tex. App. 2004)

Leier negotiated with Schaffer to purchase an Appaloosa for showing. She initially agreed to a tentative price of $10,000, but eventually agreed to a price of $11,000, with the stipulation that the horse would remain with Scheffer to be prepared for showing (shoeing, vet and training). A few weeks after making this deal and paying for the horse, the horse died in the possession of Schaffer. No papers had been transferred. Leier demanded her money back, and then found out that the money had gone to the Purnells, who had actually owned the horse.

Leier sued the Purnells for breach of contract and money had and received. The Purnells were granted summary judgment. The court of appeals reversed.

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It first held that because the Purnells had given authority to sell the horse, Schaffer was an agent with actual authority. However, with respect to the sale conditioned on training, etc., the court held that the issue was a matter of ap-parent authority, and there was an issue of fact as to this issue. The court noted that evidence needed to be presented as to the standard of care of a principal in the same or similar circumstances as the Purnells.

2002

Hengen v. Coyne, 2002 WL 31943392 (Conn. Super. Ct. 2002)

Hengen purchased a Thoroughbred horse, PRINCESS, and later entered into an arrangement with Coyne to have Coyne board and train PRINCESS and ultimately sell her. After a year under this arrangement, the parties entered into a written agreement in which Coyne agreed to use the best efforts to sell the horse on the part of both parties. Added to the contract in Hengen’s handwriting, was the note that the contract was “to be reviewed on 8/1/97.” Just prior to that date, Coyne’s partner met with Hengen and said they were getting out of the horse business and asked her to take the horse. Hengen ignored that request and later a general communication breakdown occurred. Coyne continued to pay the expenses associated with the horse and subsequently sold PRINCESS privately, and retained all of the sales proceeds.

Hengen sued Coyne for tortious breath of contract and statutory theft. The trial court entered judgment in favor of Coyne. The court held that the “to be reviewed” language, and the expression by Coyne to Hengen that they were going out of business, effectively terminated the written contract. Therefore the contract claim failed. With regard to the second allegation, tortious breach of contract, the court held that Hengen’s failure to respond to Coyne’s demand that Hengen remove the horse showed an intent to relinquish and abandon the horse, thus barring her claim.

With regard to the third count, the court held that there could be no theft, also because Hengen effectively abandoned the horse. Coyne counterclaimed for the expenses of keeping the horse. However, because the court held that the horse had been abandoned, and there was no evidence of intent to support the proposition that Hengen would pay for the board and care of PRINCESS, the court held for Hengen on the counterclaim, ruling that she did not have to pay for the post-abandonment board expense.

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2001

Hill Farms Ltd. Partnership v. Sugar, 2001 WL 506037 (Ohio Ct. App. 2001)

Plaintiff and defendant entered into a written contract which provided for the purchase of a one-half interest in the Standardbred stallion, CAM’S MAGIC TRICK. The contract contained a confusing provision regarding dividing the revenue, and the reversion of a half interest to the seller. The buyer sued for a declaration as to whether the gross proceeds or net proceeds were to be split under the agreement. The court held that because the buyer received full “ownership” of the horse, under the agreement, the buyer was fully responsible for the expenses of the horse. The seller was to receive 50% of the gross, not net, proceeds.

Tipton v. Quinn, 2001 WL 329530 (Tenn. Ct. App. 2001)

Ms. Tipton entered into an oral agreement with Ms. Quinn for the board, care and breeding of her mares, with the second foal to be retained by Ms. Quinn as compensation. The parties subsequently executed a series of written “con-ditional lease agreements” providing the basic terms, and including liquidated damages and integration clauses.

During the term of the agreements, Ms. Tipton determined that the mares were not adequately cared for or insured. She sued. On partial summary judgment, the trial court found that Ms. Quinn indisputably breached the written agree-ments for failure to provide insurance. The court ordered the mares and foals be returned to Ms. Tipton.

At a later trial, Ms. Tipton asserted various damages for breach of contract, consisting largely of the cost of replacement care and the value of foals not produced after return of the horses. The trial court awarded $29,000.00 in such damages.

On appeal, the appellate court had no trouble affirming the breach of contract finding. It rejected Ms. Quinn’s argument that the oral agreement controlled, citing the doctrine of merger. It greatly reduced the damages awarded, however. The appellate court ruled that the liquidated damage clauses of the written agreement precluded the cost of replacement care because they specified an amount that would be provided by Ms. Quinn should she prematurely return the horses. The court further reduced the damages resulting from failure to produce future foals because some of the agreements did not contemplate that Ms. Tipton would have these foals, and because Ms. Tipton failed to mitigate her damages by breeding the mares after they were returned.

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2000

Valentino v. Davis, 703 N.Y.S.2d 609 (N.Y. App. Div. 2000)

Plaintiff and defendant farm owner exchanged drafts of a management agree-ment for the care of plaintiff’s mares and breeding to defendant’s stallions. After plaintiff became concerned about the quality of the care, the mares were removed from defendant’s farm. Plaintiff sued for breach of contract, and the court held that although no written contract was entered into, a triable issue existed as to whether there was an enforceable oral or implied-in-fact agree-ment. Defendant appealed, and the appellate division ruled that proof of an oral contract was barred by the parol evidence rule. The drafts were insufficient to prove a contract because all terms had not been agreed to. The implied-in-fact contract claim was barred by the doctrine that an implied-in-fact contract will not be implied where the parties intended to reduce their arrangement to a formal agreement. Moreover, the statute of frauds barred such a contract.

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Defamation

DEFAMATION

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2017





In a second amended complaint the Mumaws made allegations against Thistle-down and its stewards. The court dismissed the claims against the individuals in their official capacities based on Eleventh Amendment immunity. Although the injunction claim was not barred, it was also dismissed because there was no showing of a deprivation of a constitutional right. According to the court, due process did not require a pre-deprivation hearing, and the Ohio statute “provides multiple levels of review sufficient to ensure Plaintiffs an opportunity to be heard.” The court also held that the individual defendants in their individual capacities with regard to scratching their horse were entitled to qualified im-munity even if a constitutional violation had occurred. The scratch was only for a single race (the right to run in a single race is not a “clearly established constitutional right”), and there was not sufficient evidence that this caused ongoing harm because plaintiffs were free to race elsewhere, and plaintiffs did not show that the stewards’ action was unreasonable.

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2014

Feld v. Conway, 16 F. Supp. 3d 1 (D. Mass. 2014)

Horse trainer and horse owner got into an online feud concerning the disap-pearance of a horse named MUNITION. The trainer tweeted that the owner was “Fing crazy”. The owner sued for defamation. The suit was dismissed for failure to state a claim because, the court ruled, the statement was obviously opinion and not a factual statement about the owner’s mental state.

2008

Siebenaler v. Curtis, 2008 WL 1744797 (D. Vt. 2008)

Suit for breach of contract and defamation in connection with Morgan horse breeding was removed to federal court based on diversity. District Court granted remand because amount of damages did not reach the jurisdictional threshold. Amount claimed as punitive damages were not to be counted, as punitive damages were unrecoverable in a contract case.

2007

Funny Cide Ventures, LLC v. Miami Herald Publishing Co., 955 So. 2d 1241 (Fla. 2007)

Owners of FUNNY CIDE brought defamation action against the Miami Herald for publishing an article that suggested the jockey was carrying an illegal bat-tery-operated device during the Kentucky Derby. The court granted summary judgment on the basis that the alleged injury – the loss of the Belmont and thus the Triple Crown – was obviously not a foreseeable injury resulting from the defamatory article.

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Defamation

2000

Thomas v. Tampa Bay Downs, Inc., 761 So. 2d 401 (Fla. Dist. Ct. App. 2000)

Track blacksmith sued track and its security director for alleged defamatory statements made by the security director in a report about the blacksmith. The court held that the report was entitled to a qualified privilege because it was made within the scope of the security director’s employment. The blacksmith also alleged an oral defamatory statement was made to an outsider. The court held that the qualified immunity did not attach to such statement.

1998

Robertson v. Tennessee Walking Horse Breeders’ and Exhibitors Ass’n, 1998 WL 382192 (Tenn. Ct. App. 1998)

Horse breeder was expelled from the Tennessee Walking Horse Breeders’ and Exhibitors’ Association (which registered Tennessee Walking Horses) and his horse registration privileges were suspended for registering a false pedigree for two horses. Breeder sued alleging wrongful expulsion and defamation. The trial court dismissed the suit, which was upheld by the court of appeals because the Association substantially complied with its disciplinary rules and gave the breeder fair notice and a fair opportunity to be heard.

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Driving While Intoxicated

DRIVING WHILE INTOXICATED

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Driving While Intoxicated

2008

Young v. Schmucker, 2008 WL 2945623 (N.D. Ind. 2008)

Motorist was injured when her car collided with a horse and buggy being driven by an intoxicated driver. The driver filed chapter 7 bankruptcy and the motorist filed an adversary proceeding to have the liability deemed nondischargeable. The adversary proceeding was dismissed because the dischargeability exception for debts “for death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated” did not include an intoxicated driver of a horse and buggy because a horse and buggy was neither a motor vehicle nor a vessel.

The motorist appealed to the district court, arguing that “vessel” could include a non-watercraft. After finding that the definition in dictionaries varied, the court determined that Congress typically used the term “vessel” to mean watercraft.

The court also rejected the argument that a horse and buggy was a “motor ve-hicle”, which is defined under Indiana law as a “vehicle that is self propelled.” But because a horse does not use mechanical power, the court reasoned, a horse and buggy is not a motor vehicle.

2004

Com. v. Noel, 857 A.2d 1283 (Pa. 2004)

Horse riders were arrested for riding intoxicated. The arrest was made under Pennsylvania’s motor vehicle statute. The arrestees successfully convinced the trial court and the Pennsylvania Supreme Court that a horse was not a vehicle. However, Pennsylvania also had a statute the provided that a rider of a horse was subject to all duties on vehicle drivers “except those provisions...which by there very nature can have no application...” The courts agreed with the arrestees that this provision was unconstitutionally vague.

2002

Baldridge v. Cordes, 85 S.W.3d 511 (Ark. 2002)

Officer Jana Cordes arrested Jeffrey Baldridge for driving a motor vehicle while intoxicated, careless driving of a vehicle, and having no proof of auto-mobile insurance.

However, Cordes was riding a horse not driving a car! Cordes charged Baldridge with these traffic offenses as a result of Baidridge’s riding a horse alongside the highway when his horse saw something causing it to shy onto

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the road and hit the mirror of a car traveling on the highway. Officer Cordes thought Baldridge appeared drunk, but the blood alcohol test showed negligible alcohol. The charges were dropped.

An understandably steamed Baldridge sued Officer Cordes for violating his civil rights.

The Supreme Court of Arkansas upheld the dismissal of the suit based on the qualified immunity of Officer Cordes. They reasoned that because Baldridge appeared drunk, the officer could have arrested him for public intoxication (although he had a negligible blood alcohol level), so just because she got the charge wrong does not matter.

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Expert Opinion

EXPERT OPINION

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2012

Carpenter v. Astor-White, 2012 WL 399110 (N.D.N.Y. 2012)

This personal injury action involved the question of whether the horse had dangerous propensities. Each side challenged the other’s experts. The plaintiff challenged the defendant’s expert, an experienced breeder and trainer, on the basis that his methodology was a review of depositions coupled with his per-sonal experience. Defendant challenged plaintiff’s expert, a “certified applied animal behaviorist and expert in the field of animal psychology” because her opinion usurped the province of the jury to determine dangerous propensity, and she never saw the horse or ruled out alternative causes of dangerous pro-pensity. The court held that both were qualified to testify.

2007

Andrews v. Raphaelson, 2007 WL 160783 (D. Nev. 2007)

Ashley Andrews and others sued Robert Raphaelson and others for fraud, breach of fiduciary duty, and racketeering for selling stallion seasons and supposedly not accounting to the partnership they were involved with. Plain-tiffs designated expert witnesses, but defendants were unable to comply with the 30-day rebuttal expert requirement because “the field of available experts qualified to express opinions in the specialized area involved in this case is relatively narrow and limited by conflicts which prevent otherwise qualified experts from testifying in this case.” The court chastised the defendants for waiting until the plaintiffs designated their experts before they began their search for an expert, but granted a continuance an extension nevertheless.

1998

Gross v. Victoria Station Farms Inc., 578 N.W.2d 757 (Minn. 1998)

In a lawsuit over the negligence of a boarding farm that had allowed a horse to escape, which horse became injured upon capture, an issue arose as to the proximate cause of the injury. The trial court refused to allow a purported expert to testify on equine lameness because the purported expert, who had degrees in geology and paleontology, was insufficiently qualified because she had no experience diagnosing equine lameness. The intermediate appellate court reversed, but the trial court’s decision was upheld by the Supreme Court of Minnesota.

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Fiduciary Duties

FIDUCIARY DUTIES

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2017

Jester v. Hutt, 2017 WL 1150648 (M.D. Pa. 2017)

Penn Ridge Farms had an agreement to manage Fantasy Lanes’ stallion UP-TOWNCHARLEYBROWN, and board Fantasy Lanes’ mares. The relationship ended in litigation after disappointing results and injuries to the mares. Prior to the litigation, Fantasy Lane had threatened suit against the farm’s veterinarian, but their dispute was resolved by executing a release. The release, however, purported to absolve a host of parties, not just the veterinarian, from liability.

Penn Ridge initiated the suit for collection and defamation, but Fantasy Ridge counterclaimed. One count of the counterclaim was for negligence in caring for the mares. Penn Ridge moved for summary judgment, claiming that the claims were barred by the release. Fantasy Ridge asserted that the release was procured by fraud because the broad release language was added at the last minute by the lawyer, and the summary of changes did not alert them to that language. The court nevertheless held that the release was valid and barred the claims.

Defendants’ counterclaim also asserted a claim for breach of contract and breach of fiduciary duty arising out of improper promotion under the manage-ment agreement and failure to register some of the foals. Plaintiff moved for summary judgment. The court determined that there were sufficient facts in the record to raise a material issue of fact supporting the claims, particularly the failure to breed most of Fantasy Lanes’ mares to the stallion, and evidence that a potential breeder inquiring about UPTOWNCHARLEYBROWN was ignored.

2015

Harmer v. Polansky, 2015 Il. App. 2d 140813-U (Ill. App. Ct. 2015)

Horse owner Polansky entered into an agreement with trainer Harmer for Harmer to manage the horses for him, for a daily fee plus 5% of winnings, plus expenses. The parties also engaged in a sulky-manufacturing venture. After a few years, Polansky stopped paying Harmer’s invoices. Harmer sued, and Polansky counterclaimed for breach of contract and breach of fiduciary duty, based in part on fraudulent billing by mark-ups of expenses, and secret commissions on the purchase of horses where Harmer acted as dual agent. He also claimed that Harmer misrepresented that some of the horses were worth-less so Polansky would relinquish ownership of them to Harmer. A jury trial resulted in a verdict to Harmer for board, but a larger verdict for Polansky for breach of contract and breach of fiduciary duty. Polansky did not prevail on his claim for unjust enrichment for the mark-up of an interest in the company or the interests in co-owned horses Harmer sold Polansky. Polansky likewise

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did not prevail on his claim for misrepresentation, or fraud in connection with the secret commissions on the purchase of horses.

On appeal, Harmer largely challenged the appropriateness of the jury’s damage calculation. In several respects the court agreed, and remanded.

On cross-appeal, the court determined that Polansky was not entitled to judg-ment on the unjust enrichment claim because the jury was entitled to believe that Harmer could negotiate the sales independently, for his own benefit. The court also rejected Polansky’s claim that he was entitled to a judgment for misrepresentation, because the jury was entitled to believe Harmer’s evidence. The court rejected Polansky’s claim for fraud in connection with the purchase of horses because the jury could reasonably believe that Polansky could not have negotiated a lower price.

2014

Crestwood Farm Bloodstock v. Everest Stables, 864 F. Supp. 2d 629 (E.D. Ky. 2012), 2013 WL 1332499 (E.D. Ky. 2013); 751 F.3d 434 (6th Cir. 2014)

Everest Stables boarded mares and a stood a stallion, PETIONVILLE, at Crest-wood. Everest’s desire to liquidate its herd of mares and foals resulted in an agreement where the mares and foals would be sold at auction by Crestwood as consignor, but instead of Crestwood charging for board and fees, it agreed to take a higher percentage commission from the sale proceeds. One horse (an ISLAND FASHION filly) that was expected to bring a high price was, through a secret bidder, bought back by Everest, who refused to allow Crestwood to have a commission on the attempted sale of that horse, thus undermining the economic benefit of the agreement to Crestwood. Everest claimed that it had the right under Kentucky law and the Keeneland conditions of sale to effectively “reserve” by bidding back the filly.

The court did not dispute that it had that right under law and the conditions, but concluded on summary judgment that the refusal to pay the commission breached the contract because Crestwood was required to sell the horses, and payment of the commission even if bought back by Everest was implied by the obligation of good faith.

Everest also claimed that Crestwood mismanaged the stallion PETIONVILLE, and thus sued for breach of fiduciary duty. The court held that the relationship of the stallion manager to the owner was a business relationship that did not imply a fiduciary duty by the standing farm to benefit the owner over its own interest.

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In the second opinion the court awarded Crestwood $272,486 in attorney fees based on the contract provision and the reasonableness of the fees.

Everest appealed. The Sixth Circuit affirmed the district court on all rulings. With regard to PETIONVILLE, the court ruled that although oral contracts could be enforced, in this case there was lack of sufficient terms to show and enforceable management contract. The mere self-serving testimony of Ever-est that Crestwood agreed to “aggressively” market the horse, without more definite terms, was insufficient. Although Crestwood admitted it agreed to provided “animal husbandry” type services, that agreement was not alleged to have been breached.

The court also rejected the contention that there was sufficient evidence of an implied contract. Even an implied contract had to show some definite terms, which were lacking in this case.

With regard to the 2008 sales agreement, the court agreed with the district court that Everest had not shown damages. It stated that the report of Everest’s expert did not sufficiently show damages because it was “preliminary” and it “never came to grips with the terms of the November sales contract” but it never addressed the need for a quick sale at a time of an economic crisis. The court further reviewed the evidence and noted that it could not determine any basis that Crestwood failed to act in a commercially reasonable manner in selling the horses.

The court of appeals likewise agreed with the district court that the relationship did not give rise to a fiduciary duty. It was a business relationship. Everest failed to establish that Crestwood agreed to put Everest’s interests above its own.

James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, 941 F. Supp. 2d 807 (E.D. Ky. 2013), 2014 WL 2113096 (E.D. Ky. 2014); 2014 WL 2203893 (E.D. Ky. 2014)

Owners sold a partial interest in the stallion READY’S IMAGE to Walmac Stud, which served as manager under a written agreement. Most claims were dismissed because they were subject to arbitration, and defendants moved to dismiss other claims for failure to state a claim. The court dismissed the claim alleging conversion because the claim was essentially one for money owed. It also dismissed the claim for violation of the New Jersey Consumer Protection Act because Walmac Stud’s service was not one offered to the public. The court did not dismiss the breach of fiduciary duty claim because the record was incomplete.

In the second opinion the court addressed the appropriateness of summary judgment on some of the non-arbitrable claims. With regard to an agreement called the Mare Agreement, Walmac contended that it was entitled to set off

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what was otherwise owed against what was required to be paid under that agreement. The court denied summary judgment on the breach of contract claim, but granted it on the breach of fair dealing claim. With regard to a claim that the farm breached the written Southern Hemisphere Agreement that governed the standing the stallion in Australia, the court granted summary judgment with respect to some alleged breaches but allowed others to stand. It likewise dismissed the breach of good faith and fair duty claims as to the Southern Hemisphere Agreement.

Most importantly, in relying on the just-issued decision of the Sixth Circuit in Crestwood, the court granted summary judgment to the defendants on the breach of fiduciary duty claims.

In the third opinion the district court addressed a several discovery issues including a motion by the plaintiffs for an adverse inference as a result of computer data allegedly not having been preserved, denying the motion.

KNC Investments, LLC v. Lane’s End Stallions, Inc., 2014 WL 4290159, and 2014 WL 4290184 (6th Cir 2014)

KNC owned a share in the syndicated Thoroughbred stallion LEMON DROP KID. It had previously sued Lanes End, the syndicate manager, for declaratory judgment concerning its duties under the syndicate agreement, and asserted claims for breach of associated fiduciary duties. The court ruled in favor of Lanes End in that suit. KNC filed a second suit also asserting claims for breaches of the syndicate agreement and associated fiduciary duties. Lanes End’s motion to dismiss was granted. On some counts, the prior suit constituted res judicata. On other counts, making allegations concerning conduct after the first suit was decided, the court dismissed the claims. It held that the syndicate agreement defined the duties, and although Lanes End was an agent for the owners, because the relationship was defined by the syndicate agreement, no additional implied agency or fiduciary duties existed as a matter of law.

An appeal was brought from the prior KNC lawsuit brought by KNC against Lane’s End, where the district court held that KNC had no right, as a syndicate member, to syndicate records. While the appeal was pending, the members of the Syndicate except KNC voted to amend the Syndicate Agreement and ratify Lane’s End’s actions as Syndicate Manager. Lanes End moved to dismiss the appeal on the basis of mootness, as it had amended the syndicate agreement to prohibit the release of syndicate information. The Sixth Circuit remanded the matter to the district court to consider the issue. It noted, though, that “Kentucky law treats owners of horse-ownership syndicates as tenants in common,” and thus the corporate-statute right of inspection of records is irrelevant. The district court granted the motion, which ruling was again appealed to the Sixth Circuit.

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Fiduciary Duties

The Sixth Circuit affirmed in a split decision, upholding the right of the mem-bers to ratify the actions over the objections of a syndicate member because the method of amendment to the syndicate agreement was followed. The court largely relied on Kentucky law as expressed in Weisberg/Etkin/Goldberg v. Gainesway Mgmt. Corp., 2008 WL 820950 (Ky. Ct. App. 2008).

The dissent argued that the dicta in the unpublished intermediate court case of Weisberg/Etkin/Goldberg v. Gainesway Mgmt. Corp., was dubious precedent because it was inconsistent with Kentucky law as established in published cases. The dissent agreed with the dismissal, however, because there clearly were no damages to KNC.

2012

Rodrock v. Gumz, 2012 WL 1424501 (W.D. Ky. 2012)

The Rodrocks entered into a stallion management agreement with defendant Gumz Farm to manage the care and breeding of four stallions. After a falling out, the Rodrocks sued Gumz Farms for not only breach of contract, but for torts as well. Gumz Farms sought to dismiss negligence, fraud, and breach of fiduciary duty claims arising out of a stallion management relationship, based on Kentucky’s “economic loss rule”. The court overruled the motion to dismiss on the basis that the economic loss rule in Kentucky is applicable only to products, not services.

2010

Welk v. Simpkins, 2010 WL 4560015 (5th Cir. 2010)

Horse owner sued trainer for improperly handling a horse that was lame, al-leging breach of contract, negligence, fraud, and breach of fiduciary duty. The trainer was granted summary judgment based on the expiration of the statute of limitations. The court of appeals affirmed. The court rejected the argument that the trainer had a duty to disclose because of his fiduciary duty to the owner, the court holding that the relationship, despite its length and subjective trust, was a business relationship that did not give rise to a fiduciary duty.

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Hobby Loss

HOBBY LOSS

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Hobby Loss

2017

Welch v. Comm’r, T.C. Memo. 2017-229 (T.C. 2017)

Taxpayer had a degree in agricultural economics, and had a successful career establishing several lucrative businesses. He Invested $9 million in a huge ranching operation. The ranch engaged in commercial cattle breeding and cutting horse breeding and training, as well as timber and livestock trucking. It had many employees, including horse professionals. It lost a lot of money, which taxpayer deducted as a business expense.

The IRS disallowed the deductions as hobby losses. The Tax Court reviewed the determination, applying the nine regulatory factors. The Tax Court determined that most of those factors weighed in favor of finding a profit motive. As for whether the ranch activity was conducted in a businesslike manner, the court noted that the ranch had a separate bank account. It further noted that operations were changed when determined to be unprofitable, and it employed profes-sionals. It rejected the importance of a lack of a written business plan, noting that the taxpayer never had business plans even for his successful endeavors.

Another persuasive factor was that there was an expectation that the assets may appreciate. The taxpayer supported this assertion with a written expert opinion.

As to the fact that the ranch never even made an occasional profit, the court noted that horse operations experience a long start-up time.

Finally, the court gave little weight to the wealth of the taxpayer, stating that “it does not impede the Court’s finding that the [ranch] was operated for profit.”

The Tax Court thus ruled for the taxpayer.

2016

Carmody v. Comm’r, T.C. Memo. 2016-225 (T.C. 2016)

Taxpayer, who owned another successful business, bought and raced horses, but over 20 years never made a profit. The IRS disallowed deductions based on lack of a profit motive. The Tax Court upheld the IRS. It analyzed the nine factors, and although some were neutral or favored the taxpayer (such as time invested), they were outweighed by factors favoring the IRS. Particularly significant were the lack of effort to control losses and make the endeavor profitable, and the taxpayer’s financial status as the owner of another business.

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Hylton v. Comm’r, T.C. Memo. 2016-234 (T.C. 2016)

Hylton was the daughter of a successful real estate businessperson. She had always been interested in horses, and started a Quarter Horse operation in Virginia. In 17 years the operation had gross income of $1.3 million, but losses of $17.4 million. The IRS disallowed deductions as hobby losses. The Tax Court upheld the IRS, including the imposition of accuracy-related penalties.

The Tax Court reviewed her situation in light of the 9 regulatory factors, and concluded that they all weighed in favor of the operation being considered a hobby rather than intended to make a profit. Particularly significant were the sizes of the losses, the lack of a business plan (except the one in Ms. Hylton’s head), the acquisition of two expensive trailers despite the lack of profit, and, of course, her wealth.

Roberts v. Comm’r, 830 F.3d 247 (7th Cir. 2016)

Merrill Roberts, “who is a Hoosier” (the court’s term) owned restaurants and bars, but many years ago got into the horse racing business. He built a facility for boarding, breeding, and training in Indiana and expanded it in 2005. He worked 12 hours a day with the horses, and “even bathed them himself.” The expenses always exceeded the income, and he deducted his losses on his tax returns.

The Tax Court ruled that the horse-racing enterprise was a hobby.

The Seventh Circuit reversed in an opinion by Judge Posner unkind to the Tax Court (calling a portion of its decision an “offense to common sense”). Important to the court was that startup expenses are expected to be large. Also important to the court was that Roberts faded out of his old business, “signal-ing a career change.” Judge Posner called the 9-factor Treasury Regulation a “goofy regulation” and criticized the Tax Court’s application of the factors. Most importantly, it took issue with the fact that horse racing being “a fun business, but fun doesn’t convert a business to a hobby. If it did, Facebook would be a hobby, Microsoft and Apple would be hobbies, Amazon would be a hobby, etc. ad infinitum.”

2015

McMillan v. Comm’r, T.C. Memo. 2015-109 (T.C. 2015)

IT professional engaged in dressage riding and training. The activities were not profitable and the losses were disallowed by the IRS. After a hearing, the Tax Court determined that most of the 9 factors to determine a profit motive

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Hobby Loss

weighed against the taxpayer. Significant were her mere sporadic profits in prior years, and the lack of evidence of attempting to be profitable.

2014

Estate of Stuller v. U.S., 2014 WL 3396084 (C.D. Ill. 2014); 55 F. Supp. 3d 1091 (C.D. Ill. 2014)

Taxpayers, who had a Tennessee Walking Horse breeding operation on an expansive farm, sued for refund of taxes when horse-related expenses were disallowed as hobby losses. In the first opinion, the court had to determine evidentiary issues that arose during the bench trial, the most significant one being the qualification of the taxpayer’s expert to testify as to profit motive. The court noted that the expert was uneducated but very experienced in horse breeding and selling, but did not have expertise in the financial or business aspects of horse endeavors. Moreover, his opinions were not directed to the regulatory factors used to determine profit motive, and were not supported by methodology.

In the second opinion, the court reviewed the nine regulatory factors as applied to the taxpayers’ horse operation. Relying extensively on the IRS’s expert, the court found that one factor favored the taxpayers, two were neutral, and the remainder favored the IRS. The court concluded that the taxpayers did not operate the farm “with a good faith intent to make a profit” and thus disallowed the losses as deductible business expenses. Persuasive to the court was the poor record keeping and the lack of a business plan. Also persuasive was the failure to make changes in the operation after it experienced persistent lack of profitability, which taxpayers successfully did with other ventures they were involved with – managing a Steak ‘n Shake and commercial rental property.

Hansen v. Dep’t of Revenue, 2014 WL 2195546 (Or. T.C. 2014)

Oregon taxing authorities disallowed expenses and losses in owning a high-ly-unprofitable dude ranch because the taxpayer, a Qwest employee, did not have a profit motive. The Oregon Tax Court upheld the determination. It looked to the 9 IRS regulatory factors in making the determination, finding that none of the factors favored the taxpayer. It further upheld the determination that the taxpayers were subject to penalties for intending to evade income taxes.

Price v. Comm’r, T.C. Memo. 2014-253 (T.C. 2014)

Price owned a successful automobile dealership business but a very unsuc-cessful horse business called Rock Ledge, which was largely involved in Arabian horse breeding. The IRS disallowed the deduction of losses because

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it determined that the horse activity was not engaged in for profit. Price took the position before the Tax Court that the dealership and Rock Ledge should be considered one activity. The court applied what were called the Mitchell factors and determined that the dealership and Rock Ledge activities were separate activities. It concluded that the businesses did not share sufficient organizational and economic overlap, noting particularly that the economic benefit between the two activities was unidirectional from Rock Ledge to the dealership.

The Tax Court then applied the nine nonexclusive regulatory factors to the Rock Ledge business, and found that the factors largely favored the IRS. The fact that Rock Ledge did not experience a profit in over 20 years was signifi-cant (and distinguished the case from Engdahl v. Comm’r, which recognized a start-up time for horse breeding or 5 to 10 years). The court rejected the argument that because the Rock Ledge facilities were first class facilities showed a profit motive because there was no evidence that other for-profit farms had similar facilities.

2013

Craig v. Comm’r, 2013 WL 3791135 (T.C. 2013)

Mr. Craig was an electrical engineer and Ms. Craig was a real estate agent. They purchased 10 acres and acquired several horses. In the tax years at issue, Ms. Craig worked 25 to 30 hours a week on her horse activity, although she continued to work 25 to 40 hours a week as a real estate agent. No separate records were kept of the horse activity. The IRS disallowed deductions of the expenses. The Tax Court affirmed. It held that the factors in determining whether an activity is engaged in for profit did not support Ms. Craig. Sig-nificant were a lack of a budget, her other income from real estate agency, and her failure to modify the horse activity when it did not make a profit, and failure to ever make a profit.

Dodds v. Comm’r, T.C. Memo. 2013-76 (T.C. 2013)

Accountant started a Morgan horse breeding business, but lost almost $1.5 million in 16 years. The IRS disallowed his losses as hobby losses. After ana-lyzing the nine factors, the Tax Court upheld the disallowance of deductions. Particularly persuasive was the failure to implement a method of controlling losses, noting that the accountant “maintained a steady pace of losses which skyrocketed to six figures in 2004, and petitioner continued to hemorrhage money from 2004 to 2011…”

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Hobby Loss

Hoelscher v. Comm’r, T.C. Memo. 2013-236 (T.C. 2013)

Business owner and his wife purchased a large ranch and raised cutting horses. The large losses were disallowed by the IRS. The Tax Court affirmed because the taxpayers “did not take any meaningful action to reduce expenses or in-crease revenue.” The court rejected the contention that the profit would come from the increase in value of the ranch, because ranching activity and holding land for profit were separate activities.

Liska v. Dep’t of Revenue, 2013 WL 821545 (Or. T.C., Magistrate Div. 2013)

Taxpayer engaged in a Quarter Horse business. The Oregon tax authorities disallowed deductions. The reviewing court used the same factors applicable to federal law to determine if the business was engaged in for profit. The fact that the business never made a profit was a significant factor in upholding the disallowance.

Mathis v. Comm’r, T.C. Memo. 2013-294 (T.C. 2013)

Mathis grew up on a Texas farm but later married a wealthy investor, who made millions a year in investment income. She started a cutting horse training and breeding operation, but in 17 years never made a profit. The IRS disallowed deductions as hobby losses. The Tax Court upheld the decision. The court held that a couple of the factors weighed in favor of Mrs. Mathis, particularly the operation of the endeavor in a business-like manner, and her expertise. How-ever, the lack of even any occasional profits in 17 years, and the substantial outside income of her husband, were among the factors that outweighed the ones in her favor.

Pederson v. Comm’r, T.C. Memo. 2013-54 (T.C. 2013)

Pederson, trained as an economist and an engineer, was an investor in the Clas-sicStar mare lease program. He also engaged in the Quarter Horse business. The major question before the Tax Court was the deductibility of expenses under Code § 183, which the IRS disallowed.

Because the Quarter Horse business had no potential for profit, the first ques-tion the Tax Court addressed is whether the two horse businesses should be bifurcated, which would have favored the taxpayer. The court held that the Thoroughbred and Standardbred horse businesses were a single, integrated activity and therefore may not be bifurcated.

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The court then reviewed the nine factors set out in the regulations. The court held that the factors favored the IRS. Significant was the fact that the taxpayer did not attempt to become educated in the horse business, and their reliance on ClassicStar’s expertise was not reasonable. The court also rejected the ap-praiser for the taxpayer because her methodology was flawed; her averages for sale prices of yearlings form each sire only included the three most expensive yearlings, and she relied on representations from ClassicStar.

Important to the court was the fact that significant tax benefits for taxpayers with substantial other income, which indicates the endeavor was not engaged in for profit.

Rodriguez v. Comm’r, 2013 WL 5272771 (T.C. 2013)

Ms. Rodriquez, a state “investigator”, and her daughter, a part-time “vendor rep”, started a Swedish Warm-Blood breeding operation. It never made a profit, and in the 15 years it operated, it incurred $1.8 million in losses, enough to offset her entire income. The IRS disallowed the deductions as incurred in an activity not engaged in for profit. The Tax Court upheld this determination. The court noted that business plan was perfunctory, little advertising was done, insurance was not obtained, and little effort was made to make the business profitable. Thus, the breeding activity was not carried on in a business-like manner. Further, the other factors weighed in favor of the IRS. However, the accuracy penalties were not allowed, as the taxpayers “made a reasonable and good faith error in applying the law to the facts of this case.”

Romanowski v. Comm’r, T.C. Memo. 2013-55 (T.C. 2013)

Former NFL player participated in the ClassicStar mare lease program. His deductions were disallowed by the IRS. As in Pederson, the Tax Court ana-lyzed the factors to determine if a profit motive existed to permit deduction under § 183 of the Code. The court concluded that most factors favored the IRS. The court particularly noted that with regard to an expectation that the assets would appreciate in value, the scheme largely involved a “circular transaction” because the foals produced from the breeding were contributed to “PowerFoal”, which was an affiliate of ClassicStar. In addition, the scheme never generated a profit.

2012

Bronson v. Comm’r, T.C. Memo. 2012-17 (T.C. 2012)

Taxpayer husband was a bankruptcy attorney and wife had a Ph.D in consumer finance. They started a Welsh pony venture, in which the wife worked full-time.

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Hobby Loss

Their children occasionally rode the horses. In the eleven years at issue they experienced a net loss of $837,752. The revenue in that period was insignificant, with only one horse having been “sold” to a charity for a nominal amount.

The IRS disallowed the deduction of the losses because the venture was not engaged in with a profit motive. The Tax Court affirmed. Particularly significant were the lack of any income, the failure to keep records on a per-horse basis, and the significant income of the taxpayer husband. The court upheld the penalties because the taxpayers did not have reasonable cause to make the deductions.

Foster v. Comm’r, T.C. Memo. 2012-207 (T.C. 2012)

Lawyer and his wife had a Quarter Horse business that failed to ever make a profit and suffered substantial losses. The IRS disallowed the deduction of those losses on the basis that the horse business was a hobby. The Tax Court agreed. Significant to the court was the failure to show that the taxpayer imple-mented methods for controlling losses, which thus contradicted the assertion that the horse business was run in a “businesslike manner.” The court noted that unprofitable activities were not “expeditiously abandoned.” The court also considered the lack of profit in any of the 25 years of the horse business to be a negative factor. Although the court agreed that the taxpayers’ expertise and research favored their position, that one favorable factor was overcome by the negative factors.

Ryberg v. Comm’r, T.C. Summ. Op. 2012-24 (T.C. 2012)

Taxpayer was a buyer for a livestock supply store, and he and his wife decided to start a breeding operation. The operation never made a profit, and was shut down. The IRS disallowed the deductions as hobby losses. The Tax Court disagreed. It held that the taxpayer had a genuine profit motive. Particularly influential was the fact that taxpayer consulted with experts, and could explain the losses by unanticipated events.

Trupp v. Comm’r, T.C. Memo. 2012-108 (T.C. 2012)

Lawyer Robin Trupp deducted over $71,000 in expenses relating to horse shows he attended in 2005 where his son was a participant. The IRS did not accept that these expenses were from an activity engaged in for profit. The Tax Court rejected his assertion that the expenses were part of his equine industry legal practice as a single activity. The court noted that Trupp did not advertise at these events. Further, according to the court, although the $71,000 in expense was minor compared to the $920,000 in equine-law legal fees he made in 2005, in actuality he did not significantly increase his client base by attending these shows. The court also rejected Trupp’s assertion that even if

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not a single activity with his equine law practice, the horse show expenses were related to a for-profit endeavor. Significant was the personal pleasure he enjoyed from attending equine events.

2011

Blackwell v. Comm’r, T.C. Memo. 2011-188 (T.C. 2011)

Taxpayers were a motocross professional and a rehabilitation nurse. After about 8 years of Quarter Horse breeding, selling, and showing, they were unable to make a profit, and quit the business. The IRS disallowed their expenses as hobby losses. The Tax Court reviewed the 9 factors, and noted that they had a business plan, were not recreational horse owners, maintained books of income and expenses, and made efforts to improve the business. It also noted that the taxpayers did not have substantial wealth unrelated to their horse business. It concluded that the taxpayers showed a sufficient profit motive, and allowed the deductions.

2010

Betts v. Comm’r, T.C. Memo. 2010-164 (T.C. 2010)

Taxpayer was a full-time designer of packaging material. She purchased a small farm and engaged in a small dressage-horse endeavor, where she personally worked. The IRS disallowed deductions of expenses and losses to the extent they exceeded gross income.

The Tax Court analyzed at length the nine non-exclusive regulatory factors, and found two of them favored the taxpayer, two were neutral, and the remainder favored the IRS. It upheld the disallowance.

With regard to the “business-like manner” factor, even though the taxpayer kept careful records and had a business plan, the Tax Court focused on the taxpayer’s lack of advertising in finding that the factor favored the IRS.

Also notable to the Tax Court was the inability of the taxpayer to even make an occasional profit. It noted that she did not even sell the one asset (a horse) that could have potentially generated a profit. Further, the Tax Court noted, the horse activity “clearly involved substantial elements of personal pleasure and recreation for herself and her daughter.”

Chandler v. Comm’r, T.C. Memo. 2010-92 (T.C. 2010)

Taxpayer was trained as an accountant, but was involved in Thoroughbred racing and breeding for some 20 years. She never made a profit. Losses and

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Hobby Loss

expenses were disallowed as related to an activity not engaged in for profit. The Tax Court upheld that disallowance. Almost all of the nine non-exclusive regulatory factors favored the IRS. Significant was the fact she had other signif-icant income, did not have a business plan, did not consult business advisors, and had never even had an occasional profit.

Dennis v. Comm’r, T.C. Memo. 2010-216 (T.C. 2010)

Husband was a bankrupt entrepreneur and wife was a cosmetologist when they decided to start a Quarter Horse breeding operation. The IRS disallowed their deductions as hobby losses. The Tax Court, however, found in favor of the taxpayers. It analyzed the nine factors and found five of them favored the taxpayers, three were neutral, and only one (expectation of appreciation) favored the IRS. Significant was the considerable amount of study and effort that the taxpayers had expended in operating the business.

Frimml v. Comm’r, 2010 WL 5395420 (T.C. 2010)

Married couple engaged in Paint Horse breeding venture for a ten-year period, without making a profit, and the IRS challenged their deductions as hobby losses. The husband was a railroad-track repairman and the wife was an office worker. The Tax Court held that their horse-breeding venture was engaged in for profit. Persuasive was the fact that they “spent a decade formulating a business plan” even though it was not in writing. With regard to the “personal pleasure” factor, the court noted that the taxpayers did not ride their Paint Horses.

Molnar v. Comm’r, 2010 WL 4181342 (Minn. Tax Ct. 2010)

Taxpayer was a banker who had a breeding-to-race operation. The state taxing authorities denied deductions as hobby losses, and taxpayer appealed. The state Tax Court looked to the Internal Revenue Service guidelines and concluded that the activity was not engaged in for a profit motive. Significant was the lack of advertising, and the huge and consistent disparity between income and losses. In 8 years the operation had $353,000 in losses, and only $18,000 in income.

2009

Phemister v. Comm’r, T.C. Memo. 2009-201 (T.C. 2009)

Physician’s otherwise unemployed wife engaged in a horse-breeding activity that amassed $500,000 in losses in five years, compared to the $2 million in income made by her physician husband. She had no business experience, consulted no experts on how to make the operation profitable, and had no

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business plan. The disallowance of the deductions as hobby losses was upheld by the Tax Court.

2008

Keating v. Comm’r, 544 F.3d 900 (8th Cir. 2008)

Keating, an emergency room physician, deducted expenses in owning, training, and riding Arabian horses. The IRS disallowed the deductions as the activity was a hobby not engaged in with a profit motive. The Tax Court affirmed the disallowance, stating that five of the nine factors favored the IRS, and four were neutral. The court of appeals affirmed. Significant was the fact that Keating had substantial other income as a physician, her daughter rode the horses for pleasure, and Keating had never kept expenses on a per-horse basis or run financial projections.

2007

Smith v. CIR, 94 T.C. Memo. 2007-368 (T.C. 2007)

The IRS challenged taxpayer’s deductions for their cutting horse activities as hobby losses. The Tax Court analyzed the nine factors and found they all favored the IRS. Particularly persuasive were the fact that no separate bank account was maintained for the activity, and the fact that although taxpayer had consulted experts, he made no showing that he sought advice on the economics of cutting horse activity.

Wilson v. Comm’r, T.C. Summ. Op. 2007-117 (T.C. 2007)

Law enforcement officers engaged in raising and training Quarter Horses. After an initial year of selling horses for a profit, they did not make a profit despite the herd having grown substantially. The IRS disallowed the deductions as hobby losses. The Tax Court held, however, that the taxpayers honestly intended to make a profit. Persuasive was the lack of any income from other sources.

2006

Montagne v. Comm’r, 166 F. App’x 265 (8th Cir. 2006)

Taxpayer was a chiropractor whose deductions for his horse breeding and training activities were disallowed. The court of appeals upheld the decision because taxpayer had no written business plan or separate business records, and did not develop any expertise in the horse-breeding business.

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Hobby Loss

Sanders-Castro v. Comm’r, 2006 WL 2848127 (T.C. 2006)

Taxpayer, a legal aid attorney, deducted expenses for her Appaloosa breeding operation. The court concluded that this was not an activity engaged in for profit, thus upheld the disallowance of those deductions. The court noted that she did not conduct the operation in a business-like manner. Particularly sig-nificant was the fact that “petitioner, as attorney, did not have any written con-tracts with the professionals she hired to care for, train, and show her horses.”

2005

Friedberg v. Franchise Tax Bd., 2005 WL 1785229 (Cal. Ct. App. 2005)

Taxpayer was a successful trial lawyer who got into the Standardbred breeding business. The state tax board challenged his deductions as hobby losses. After a trial, the court ruled that a profit motive was shown where losses could be attributed to downturn in Standardbred horse business and other misfortunes. The determination was affirmed on appeal.

Giles v. Comm’r, 2005 WL 375462 (T.C. 2005)

Giles, a dentist, engaged in Arabian Horse Breeding experienced a net profit once in 16 years, and the deductions were challenged as hobby losses. The Tax Court upheld the IRS’ determination, despite the fact that Giles had engaged 30 hours a week in the horse endeavors. Influential was the fact that Giles never reduced the amount of time she spent in dentistry.

Ryan v. Comm’r, 2005 WL 2077752 (T.C. 2005)

Taxpayer was a physician who started an Appaloosa breeding business. It never made a profit so was not entitled to the presumption available if income exceeded deductions in 2 of 7 years. The deductions were disallowed as hobby losses. The court analyzed the taxpayers business using the nine non-exclusive factors contained in § 183-2(b) of the Income Tax Regulations.

The first factor analyzed was whether the taxpayer conducted the activity in a “business-like manner.” The taxpayer did not hire a bookkeeper or accoun-tant, never developed a business plan, and paid all expenses from a personal account. The court determined that the taxpayer had not conducted the activity in a businesslike fashion.

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The second factor is the expertise of the taxpayer. The court held that taxpayer did not consult with experts or learn the economics of the activity, and thus this factor was against the taxpayer.

The third factor, time devoted to the activity, was the only factor that weighed in favor of the taxpayer. Although taxpayer spent full time as an emergency room physician, he spent considerable time working with the horses and going to horse shows.

The other factors weighed against the taxpayer, or were neutral. Thus, the disallowance of the deductions was affirmed.

2004

Freed v. Comm’r, 2004 WL 2110085 (T.C. 2004)

Jane Freed, the beneficiary of a substantial trust, suffered losses of $1.1 million in 14 years of Thoroughbred breeding and racing. Despite the finding that Ms. Freed did not personally engage in the operation for pleasure, the Tax Court nevertheless applied the nine regulatory factors in concluding that she conducted the operation without a profit motive. Persuasive was Ms. Freed’s apparent failure to change the nature of doing business after years of losses. The court made a point of rejecting the notion that some of the nine factors were more important than others in determining outcome.

2003

Howard v. Comm’r, 2003 WL 22053843 (T.C. 2003)

Sheila Howard was a full-time paralegal engaged part-time in a horse breeding operation. The IRS disallowed her deductions on the basis that she was not engaged in horse breeding for profit. Howard had not prepared a business plan or kept records other than cancelled checks, although she had consulted with other breeders. The Tax Court affirmed the disallowance.

2002

Harrington v. Comm’r, T.C. Summ. Op. 2002-58 (T.C. 2002)

Dr. Harrington was a full-time professor at New Mexico’s Highland University School of Social Work. He grew up around horses, and spent substantial time breeding Appaloosa horses. He experienced about $110,000 in losses in a nine-year period. The Tax Court upheld the IRS’s determination that the horse breeding activity was a hobby, and therefore the losses were not deductible.

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Hobby Loss

Critical facts included the fact that Dr. Harrington bred a single stallion to only one or two mares a year. The economics were such that even if he had been able to sell each of the foals for the maximum price per year, revenues would have never exceeded expenses. Moreover, the court noted, though Dr. Harrington worked hard at caring for horses, he clearly loved the animals and derived much pleasure and pride from them. It was also significant to Dr. Harrington to not give up his regular job as a social work professor to make a living from horse breeding. It was a “pleasurable sideline for Dr. Harrington, not a source of his livelihood,” the court noted.

Hastings v. Comm’r, T.C. Memo. 2002-310 (T.C. 2002)

The taxpayer was a lawyer with an active law practice and had been involved with horses all her life. In 1985 she began a Saddlebred business, but never made a profit.

The Tax Court upheld the IRS’ disallowance of deductions, holding her horse business was a hobby lacking a profit motive. Although the court analyzed the factors set forth in the tax regulations, the fact that the taxpayer was a lawyer seemed to be influential. The court also noted that the business plan was a little thin, and the taxpayer never consulted a financial expert, although she utilized horse experts. Also, the taxpayer was unable to show that the business would likely prove profitable in the future.

Kuberski v. Comm’r, T.C. Memo. 2002-200 (T.C. 2002)

Kuberski was a medical doctor in the Thoroughbred business. Since 1980, however, he had never made a profit. In the 20-year period, he racked up losses of $880,000. The Tax Court upheld the IRS’ disallowance of the deduction of the losses. Kuberski argued that he conducted his Thoroughbred business in a business-like manner, as evidenced by a business plan, separate accounts, business stationary, culling unproductive horses. The Tax Court responded that “Petitioners’ arguments, however, appear to have been copied from the tax guides for horse owners that they presented at trial and have little support in the evidence.” (Kuberski represented himself pro se.)

Significantly, an argument made by the IRS was that the Thoroughbred industry was inherently a “loss” industry, as statistically it is possible to make a profit only once every twenty-five years. The court did not expressly address this position by the IRS that a Thoroughbred business was per se a hobby, and not an activity engaged in for profit within the meaning of § 183 of the Code.

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Reimer v. Comm’r, T.C. Summ. Op. 2002-26 (T.C. 2002)

Horse breeders experienced losses on their operation for a period of seven years. The Tax Court upheld the disallowance of deductions on the basis that the breeding operation was not engaged in primarily for profit.

2000

Berry v. Comm’r, T.C. Memo. 2000-109 (T.C. 2000)

Respondent determined that petitioners had a deficiency in income tax for 1995. The issue for decision was whether petitioners operated their farm and horse-breeding activity for profit in 1995. The court held that they did not.

Brannon v. Comm’r, T.C. Memo. 2000-76 (T.C. 2000)

Respondent determined certain deficiencies in federal income taxes and pen-alties under § 6662(a) for petitioner’s 1993 and 1994 tax years. The issues for decision were: (1) whether a horse breeding activity conducted by petitioner was an activity not engaged in for profit under § 183(a); (2) alternatively, whether, under § 162(a), some of the expenses in connection with the activity were substantiated; (3) whether petitioner, in an unrelated business activity, established, under § 1012, a basis for an asset used in that activity upon which depreciation would be allowable under § 167(a); and (4) whether petitioner is liable for the penalties under § 6662(a).

Filios v. Comm’r, 224 F.3d 16 (1st Cir. 2000)

The court of appeals upheld determination of Tax Court and IRS that taxpayer’s racing and breeding pursuits were not engaged in for a profit. Of the nine factors considered under Reg. § 1.183-2(b), only one favored the taxpayer. The court found that the “the taxpayer’s history of income or losses with respect to the activity” was the most telling factor, and that the magnitude of the losses and their consistency demonstrated that the taxpayer was not engaged in racing or breeding with a primary purpose of earning a profit.

McKeever v. Comm’r, T.C. Memo. 2000-288 (T.C. 2000)

The McKeevers operated their Paso Fino horse business for 11 years without coming close to making a profit in any year. The Tax Court upheld the deter-mination that they were not engaged in the activity with a purpose to make a profit, and thus disallowed $500,000 in cumulative deductions.

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Hobby Loss

Novak v. Comm’r, T.C. Memo. 2000-234 (T.C. 2000)

Taxpayer was engaged in the breeding and training of Arabian horses. The Tax Court affirmed the IRS’s determination that his activity was not engaged in for profit. Significant to the determination was the high commissions he paid. Although he had a separate business account, funds were used to pay personal expenses. The fact that taxpayer became an expert in breeding Arabian horses was not persuasive.

Tammaro v. Comm’r, T.C. Memo. 2000-243 (T.C. 2000)

Accountant offset his professional income with losses from breeding and showing of horses. He applied for administrative and litigation costs as the “prevailing party” in litigation with the IRS. The court ruled that the IRS has a reasonable basis to determine that accountant was not engaged in horse breeding and showing to make a profit.

1999

Dishal v. Comm’r, T.C. Memo. 1999-110 (T.C. 1999)

This matter was before the court on petitioners’ motion for award of reason-able litigation costs pursuant to § 7430 and Rule 231. Petitioners moved the court for an award of litigation costs only. The sole issue at trial was whether petitioners engaged in their horse breeding and horse racing activities with the objective of making a profit within the meaning of § 183.

Estate of Filios v. Comm’r, T.C. Memo.1999-92 (T.C. 1999)

Respondent determined certain deficiencies in petitioners’ 1992 and 1993 fed-eral income tax and certain accuracy-related penalties. The issues for decision were: (1) whether petitioner operated horse racing and breeding activity for profit in 1992 and 1993. The court held that he did not and (2) whether peti-tioner was liable for the accuracy-related penalty for negligence under § 6662 for 1992 and 1993. The court held that he was not.

Hillman v. Comm’r, T.C. Memo. 1999-255 (T.C. 1999)

Respondent determined certain deficiencies and accuracy-related penalties with respect to petitioners’ federal income tax. The issues for decision were: (1) whether petitioners’ activity relating to the breeding and showing of horses was an activity engaged in for profit. The court held that it was not. (2) whether petitioners were entitled to business mileage deductions over and above the

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amounts respondent has allowed. The court held that they were not. (3) whether petitioners were liable for accuracy-related penalties under section 6662(a). The court held that they were.

Hudnall v. Comm’r, T.C. Memo. 1999-326 (T.C. 1999)

Respondent determined a deficiency in petitioners’ federal income tax of $3,664 for the taxable year 1993. The issues for decision were: (1) whether petitioners’ horse-related activities were engaged in for profit; (2) whether petitioners were entitled to take a deduction for real estate taxes; and (3) whether petitioners were entitled to deduct mortgage interest.

Sanders v. Comm’r, T.C. Memo. 1999-208 (T.C. 1999)

Plaintiff, a wealthy businessman, engaged in the activity of showing and selling cutting horses, incurring substantial losses during the years in issue, and during preceding and following years. By notice of deficiency dated Sep-tember 10, 1996, respondent determined deficiencies in petitioner’s federal income taxes and accuracy-related penalties as follows: losses disallowed; the activity was not an activity engaged in for profit; plaintiff undertook and carried on the activity primarily as a hobby. Plaintiff was further liable for § 6662 accuracy-related penalties.

Smith v. Comm’r, 182 F.3d 927 (9th Cir. 1999)

Defendants appealed the Tax Court’s judgment, following a one-day bench trial, upholding the Commissioner of Internal Revenue’s determination of income tax deficiencies and penalties for 1990, 1991, and 1992.

1998

Dodge v. Comm’r, 188 F.3d 507 (6th Cir. 1998)

Petitioners appealed the final judgment of the U.S. Tax Court finding (1) that they had impermissibly underpaid their federal income taxes for the years 1991, 1992, and 1993, and (2) that their underpayment warranted an accuracy-related penalty under IRC § 6662. The Court of Appeals for the 6th Circuit affirmed the judgment of the Tax Court.

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Immunity Issues

IMMUNITY ISSUES

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Immunity Issues

2006

Shroyer v. Klein, 2006 WL 1328859 (Mich. Ct. App. 2006)

Agents of horse owner arrived at horse breeder’s property to take possession of the owner’s horses. This was met with resistance from the breeders, who called the sheriff. However, based on the information given to the sheriff, the sheriff told the parties that the owner could take the horses. One horse was taken. The breeder sued the sheriff for damages resulting to the field. The court dismissed the negligence claim holding that the sheriff had qualified immunity. The court also dismissed the civil rights claim, holding that the breeder had an adequate state court remedy.

1998

Big Elk v. Kastning, 141 F.3d 1184 (10th Cir. 1998)

A dispute between owners of horses and her lender erupted into a feud. The lender solicited the assistance of sheriff’s deputies in taking possession of the horses. The owner sued for violation of her constitutional rights. The denial of summary judgment based on claimed immunity of the deputies was upheld on appeal.

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INJURY TO HORSE

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Injury to Horse

2016

Montgomery v. Lester, 201 So. 3d 966 (La. Ct. App. 2016)

Dogs trespassed onto horse farm and chased a Thoroughbred horse named LINDSAY JEAN ’13 causing the horse to be injured, and ultimately eutha-nized. The Montgomerys, who claimed to own the horse, sued the dog owner. After a bench trial they were awarded $200,000 for the lost value of the horse.

2013

New Jersey Thoroughbred Horsemen’s Ass’n v. Alpen House U.L.C., 942 F. Supp. 2d 497(D.N.J. 2013)

Racehorse owners and horsemen’s association sued training facility alleging it was strictly liable as the source for an outbreak of Equine Herpes Virus. The court granted summary judgment to the defendant on the strict liability claim because the Trainer Responsibility rule did not create a private right of action. However, it denied summary judgment on the negligence claim, and held that damages measured by lost purses during quarantine were not so speculative as to preclude consideration.

The first issue on appeal was whether the Montgomerys had standing because they were not listed on the registration papers as the owner of the horse. Instead, the owner was listed as “Lindsay Jean ’13 LLC.” But the court recognized that “registration of a horse does not prove ownership under Louisiana law,” and because the Montgomerys testified they were the owners, that was sufficient evidence of ownership, and thus standing.

The next issue on appeal was the qualifications and basis for opinion of the plaintiffs’ valuation expert, Jay Goodwin, who valued LINDSAY JEAN ’13 at $250,000. The horse was insured for $35,000. The court held that despite the fact that he had never testified in a case, Goodwin was sufficiently qualified because of his experience, having been in the business of breeding and selling Thoroughbreds since 1997. The fact that his opinions were not supported by underlying data was not sufficient to disregard his testimony because defen-dant never asked for that data. Further, the defendant never offered an expert themselves. (The court of appeals further rejected a cross-appeal claim that the full value of $250,000 had to be accepted by the trial court.)

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2009

Thrasher v. Riverbend Stables, LLC, 2009 WL 275767 (Tenn. Ct. App. 2009)

Plaintiff boarded her horse for training with Riverbend Stables. The horse was tragically killed when it was spooked while attached to a hot walker. Summary judgment for Riverbend was partially reversed. The court of appeals held that the exculpatory clause in the boarding contract was enforceable and barred the ordinary negligence claim. However, the court held that Riverbend did not ne-gate the gross negligence claim, especially in light of the reports of two experts for plaintiff that hot walkers were inherently dangerous to full grown horses.

Wright v. R&M Fence and Construction, 2009 WL 1347289 (Ky. Ct. App. 2009)

Horse farm owner sued neighbor when his horses got spooked by a woodchip-per operating on neighbor’s farm. Summary judgment was granted to neighbor. One of the horses died in the incident. The court of appeals ruled that there was no duty owed by the neighbor, and that the spooking of the horses resulting in the death of one was unforeseeable as a matter of law.

2008

Parker v. Parker, 195 P.3d 428 (Or. Ct. App. 2008)

Plaintiff’s horse was injured and had to be euthanized when it ran into a fence as a result of defendant’s dog attacking it. Plaintiff sued for both negligence and for statutory liability under an Oregon statute that states that an owner of any livestock that is injured or killed by a dog shall have a cause of action against the dog owner for double the value of the livestock. The trial court granted summary judgment to defendant on this claim, stating that negligence still had to be proven. The case proceeded to trial, and the jury found there was no negligence.

On appeal, plaintiff essentially argued that the statutory cause of action was strict liability cause of action, and negligence need not be shown. The Oregon appeals court agreed, and held that on remand there should only be a trial as to value, as summary judgment as to liability should be granted.

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Injury to Horse

Slowey v. Midland Acres, Inc., 2008 WL 2486565 (Ohio Ct. App. 2008)

In-foal mare was sent to Midland Acres for breeding, and was bred after the birth of the foal. The mare and foal were to remain on the farm until the foal was weaned. The foal, however, died as a result of accidental strangulation in a gate. The owner sued.

The breeding contract contained a broad exculpatory clause relieving Midland Acres of liability for injury or death to “any horse, from any cause whatsoever.” The owner argued that the boarding of the mare with the foal was a separate oral agreement, and thus the clause did not apply. The court agreed it was a separate agreement, but held that the clause nevertheless applied and was enforceable.

2007

Rothing v. Kallestad, 159 P.3d 222 (Mont. 2007)

Nineteen horses died allegedly from botulism contaminated hay. Owner sued seller of the hay for loss of value of the horses, loss of income from the horses, and emotional distress for watching the horses die. Summary judgment was granted to the seller because the products liability statute did not apply, and that injury from the presence of botulism was not foreseeable. The court of appeals reversed, holding that the UCC’s implied warranty provisions applied, and implied warranties did not include the element of foreseeability.

2005

Alaimo v. Racetrack Evangeline Downs, 893 So. 2d 190 (La. Ct. App. 2005)

A gelding named LUCKY MAN (bought for $5,000) was injured when it ran into an infield gate while being exercised at Evangeline Downs. LUCKY MAN was euthanized due to the injuries from the collision. The owner of the horse sued the track and its insurer, asserting negligence in leaving the infield gate open. The defendant claimed that the gate was opened by the collision and that the cause was the rider’s inability to control the horse. The trial court entered judgment in the amount of $38,000 to the owner. The court apparently took into account the future potential winnings of LUCKY MAN.

On appeal, the court held that sufficient evidence existed to support the judgment. The appeals court also held that the amount of the judgment was appropriate because it was not unreasonable to assume that the horse “had a future in racing” based on his past performance.

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The breeder of LUCKY MAN had intervened in the action, asserting that he was entitled to a recovery because he would have been entitled to 20% of LUCKY MAN’s earnings from the breeders’ association. The trial court agreed and awarded him $12,000. The appeals court upheld the award, despite some inconsistency with the owner’s award.

2004

Murrell v. Hooter, 892 So. 2d 680 (La. Ct. App. 2004)

Murrell boarded her horse with the Hooters. As a result of a series of gates being left open, Murrell’s horse escaped and was killed when struck by a car. Murrell sued the Hooters for negligence. The trial court granted summary judgment to the Hooters based on Louisiana’s Equine Immunity Statute. The appeals court reversed. The court first found that a boarder was not a “participant” in an equine activity. The court also held that being struck by a car off-premises is not an “inherent risk” of an equine activity.

2003

Charles v. Los Angeles Turf Club, 2003 WL 22229401 (Cal. Ct. App. 2003)

Racehorse KING DARIUS was injured during a workout session at Santa Anita when he got spooked and ran through a rail. The owners sued based on negligence and negligence per se. The jury verdict for the plaintiff was reversed by the court of appeals. Although the court stated that the defense of assumption of risk was not applicable, the court held that the negligence claim failed because there was no proof that the rail was jagged before the horse ran into it, although post-accident photographs showed jagged edges. The negligence per se claim failed because even if there had been a violation of a rail-construction regulation, requiring a continuous outside rail, the plaintiff did not show that the injury was the type of injury which the regulation was designed to prevent.

2002

Pillow v. Entergy Corp., 828 So. 2d 83 (La. Ct. App. 2002)

A horse was electrocuted when it got entangled in a power line pole’s guy-wire, and the owner sued the power company. At the bench trial, the plaintiff’s expert testified there was too much sway in the guy-wire and there should have been a second guy-line. The court held that power company liable. On appeal, the

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Injury to Horse

court of appeals upheld the judgment on the basis that the power company had a high degree of care and sufficient evidence was presented.

2001

Callahan v. Rafail, 2001 WL 283012 (Del. Super. Ct. 2001)

Plaintiff’s horse trailer, which was carrying his racehorse, SILENT BILLY, was involved in a collision with defendant’s car. After a couple of disappoint-ing races after the accident, it was determined that the horse was lame due to injuries from the accident. At trial, plaintiffs sought to introduce, through an economist, evidence of lost race earnings. The court ruled that such evidence was too speculative, and limited damages to the difference between the fair market value of SILENT BILLY before and after the accident. The court noted, however, that the $17,000 purchase price paid just a few months before the accident was not a binding figure as to the fair market value of the horse. “It is apparent that there are many factors beyond the simple purchase price that affect the value of a racehorse and that courts give the parties wide latitude in persuading the jury as to the most accurate fair market value.”

2000

Keller v. Case, 757 So. 2d 920 (La. Ct. App. 2000)

Thoroughbred owners sued farm that boarded their horse after horse died from alleged neglect. The farm’s insurer was added as a party. The insurer was grant-ed summary judgment on the basis that the policy excluded property damage for property in the farm’s care, custody, and control. The court of appeals agreed, but reversed because the owner had also sued for mental anguish, which was not excluded under the property damage exclusion.

1999

Herbert v. Archdiocese of New Orleans, 739 So. 2d 928 (La. Ct. App. 1999)

The plaintiff in the case bought some property from the defendant, which property had a lamppost on it. The plaintiff built a horse arena, and when his horse used the arena, it got injured on the lamppost. Proving that anybody with a filing fee can file a lawsuit regardless of the merits of the claim, the horse owner sued the seller of property. The case did not survive summary judgment, and the appeals court affirmed, holding that even if the pole had been owned by the defendant seller, plaintiff’s claim was meritless because the pole created no unreasonable risk of harm.

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State v. Thurston, 739 A.2d 940 (Md. Ct. Spec. App. 1999)

Through a separate corporation, the State of Maryland operated a training center. Plaintiff’s horse was injured when utilizing the track, due to a 40-foot gap in the railing. The jury found that the state was liable for failure to correct an unsafe condition, and awarded the value of the horse. The appeals court reversed, because the trial court admitted subsequent remedial measures into evidence, under the guise of the “feasibility” exception.

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Insurance

INSURANCE

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Insurance

2017

Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159 (Fla. Dist. Ct. App. 2017)

After insured horse died, insured sued insurer to recover value. The litigation proceeded for a year on a dispute as to standing, because the horse was actually owned by a person who was not the original plaintiff, and had not actually been transferred to the original plaintiff as intended. That dispute was cured when the person was added as a plaintiff. The insurance company then moved to compel arbitration based on the arbitration clause in the policy. The court granted the motion.

The court of appeals affirmed. It held that the insurer had not waived its right to arbitrate by filing the motion after a year of litigation because that year involved the issue of the proper party. That issue was cured, and the motion was filed when the dispute became the value of the insured horse.

2015

Deardorff v. Farnsworth, 343 P.3d 687 (Or. Ct. App. 2015)

Stable sued insurer to recover costs incurred in defending against horse owners for losses incurred when the stable’s trailer caught fire. The trial court denied a motion for summary judgment based on estoppel as a result of the agent allegedly having represented that the stable was covered. The court of appeals reversed, holding that estoppel cannot be used to negate an express exclusion in an insurance policy absent the agent’s interpretation of an ambiguous provision.

2013

North American Specialty Ins. Co. v. Pucek, 2012 WL 2308707 (E.D. Ky. 2012), 2013 WL 888602 (6th Cir. 2013)

Horse insured under a mortality policy was injured in training and insurer was notified of the need to euthanize the horse. The policy did not cover intentional destruction of the animal except for “humane destruction.” Some consideration was given to surgery but the owners rejected the option. Although the horse met the veterinary standards for euthanasia, the veterinarian appointed by the insurance company refused to certify the destruction because the horse, he opined without examination, was “pasture sound” and not in constant pain. The owners videotaped the horse to show he was in great pain, then had the horse euthanized.

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The insurer brought a declaratory judgment action. The district court granted summary judgment to the insurer. The court refused to consider the video tape evidence that the horse was in pain. The court held that because the insurance company’s veterinarian did not certify the horse was in great pain, that there was simply no coverage under the policy. The court of appeals affirmed, hold-ing that even if the American Association of Equine Practitioner’s Guidelines would have justified euthanasia, those guidelines do not provide an exception to the intentional destruction exclusion.

Packer v. Indiana Dep’t of Workforce Dev., 995 N.E.2d 680 (Ind. Ct. App. 2013)

Indiana exempted “agricultural labor” from unemployment insurance require-ments. Packer owned and managed a stable where she raised, managed, and conducted husbandry services for horses. She also boarded horses for others and taught riding lessons. The court held that the latter two pursuits were not “agriculture” and thus work by employees engaged in those activities was not exempt. Because Packer did not keep separate records for work on such activities, she was liable for unemployment compensation taxes on the employees’ entire wages.

2010

Great American Ins. Co. v. GeoStar Corp., 2010 WL 845953 (E.D. Mich. 2010)

Insurers sued for declaratory judgment that their D & O Coverage did not apply to the claims against GeoStar for “overselling” its mare-lease program. The court denied the motion to dismiss made by GeoStar regarding the claim by the insurers that the insurance was procured by fraudulent misrepresentation. The court also denied the insurers’ summary judgment motions that the D & O coverage did not apply because of the exclusion for “professional services”.

Newton v. North American Specialty Ins. Co., 2010 WL 3825459 (E.D. Ky. 2010)

Racehorse with a $400,000 mortality policy experienced ataxia severe enough to prevent him from racing, but not severe enough to be covered under the policy. After an unsuccessful treatment approved by the insurance company, the horse was euthanized. The insurer denied the claim, and the owner of the horse sued. The court granted summary judgment to the insurance company, rejecting the argument that the insurer was estopped to deny coverage because it had approved the treatment.

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Insurance

Reid v. Sweetwater Campground, 2010 WL 4273092 (La. Ct. App. 2010)

Rider was injured when the horse she was provided with bolted. She sued for negligence, and maintained that there was coverage under the riding facility’s insurance policy. The policy excluded injury “caused by any animal.” Rider asserted on appeal that her claim was from negligence in ascertaining whether she could safely engage in horseback riding, and thus the exclusion did not apply. The court of appeals held that the exclusion clearly applied.

2008

Illinois Ins. Guaranty Fund v. Santucci, 894 N.E.2d 801 (III. App. Ct. 2008)

Santucci was sued in a subrogation action resulting from a collision that occurred when his horses escaped after he left a gate open. He demanded a defense under a liability policy owned by his construction business, PS Coyote, Inc. He argued that when he left the gate open, he was acting in his corporate capacity. However, the court held that that was not controlling, because he owned the horses individually. Thus, there was no coverage under the policy.

Insurance Corp. of Hannover v. Polk, 262 S.W.3d 120 (Tex. App. 2008)

Owners of racehorse had a $40,000 mortality policy with Hannover. The policy had a thirty-day extension providing that if death occurred within thirty days as a result of an injury or disease condition within the policy period, coverage still existed. The horse broke its knee during the policy period. After the expiration of the policy period, surgery was performed. The prognosis was good and the horse was sent to the track to race. Shortly thereafter, still within the extension period, the horse developed colitis and died. The insurer denied coverage on the basis that the colitis was a new disease. The owners sued.

After a bench trial, the court rendered judgment for the owners, awarding them the policy coverage of $40,000. The court also awarded $120,000 in actual damages for “bad faith” under the insurance code, which allows for actual damages of up to treble the policy coverage. On appeal, the court of appeals upheld the judgment even though there was conflicting expert testimony con-cerning the whether the colitis was caused by the surgery. The court of appeals modified the judgment because the total award was quadruple the coverage, not treble the coverage.

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2007

Harrison v. Great American Assur. Co., 227 S.W.3d 890 (Tex. App. 2007)

Harrison acquired a two-year-old filly, OMA, for racing. He insured her as a “racehorse” for mortality. OMA developed a spur in the knee, and became unsuitable for racing. Harrison changed her classification with the insurer to “pleasure horse”, which saved on premiums. After some recovery, OMA re-turned to training, but was injured when galloping and had to be euthanized. A claim under the policy was denied because at that point OMA was a racehorse, and not a pleasure horse. Harrison sued the carrier, but the claim was dismissed on summary judgment. On appeal, the court affirmed the summary judgment, holding that there was nothing ambiguous about the terms “racehorse” and “pleasure horse”, even though they were undefined, and that when OMA was being trained, she was clearly a racehorse.

2006

Great American Ins. Co. v. Potter, 2006 WL 2854386 (E.D. Tenn. 2006)

Insurer filed a declaratory judgment action seeking to absolve itself of the duty to defend an action brought against a boarding farm by an owner whose horse became injured and had to be euthanized. The policy purported to be limited in its coverage of property damage, but the court held that there was arguably coverage, thus a duty to defend, because the policy was termed a horse boarding policy and a trainer had been added to the policy.

Great American Ins. Co. v. Thorson, 2006 WL 2850165 (E.D. La. 2006)

Thorson took out mortality insurance on a racehorse acquired for breeding as a stallion. The policy contained a first-season infertility endorsement. In February of the breeding year, Thorson began receiving some correspondence indicating that the stallion may have fertility problems. When convinced the stallion was infertile in September, he made a claim to the insurer. The claim was denied and the insurer filed a declaratory judgment action. Summary judgment was granted the insurer on the basis that the notice required under the policy was not timely.

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2005

Maroney v. New York Central Mutual Fire Ins. Co., 839 N.E.2d 886 (N.Y. 2005)

Horse being led by Deborah Morris on Ms. Morris’ property kicked and in-jured plaintiff. Plaintiff sought recovery from Morris’ homeowners insurance. However, the policy excluded coverage for the barn and stable. The court of appeals affirmed the trial court’s determination that there was no coverage. The court rejected the argument that the accident did not “arise out of” the barn and stable, because it was related to the purpose for which the barn and stable were used – care and boarding of horses.

2004

Farmers Union Mutual Ins. Co. v. Staples, 90 P.3d 381 (Mont. 2004)

Corcoran’s ranch liability insurance provided that any person legally respon-sible for an animal owned by Corcoran would be an additional insured. A horse named FRENCHY caused an injury and the boarder of FRENCHY, one Staples, sought coverage. In the declaratory judgment action, the trial court ruled on summary judgment that there was no duty to defend Staples because Corcoran did not own FRENCHY at the time of the accident. The Montana Supreme Court reversed, holding that there was a genuine issue of material fact as to ownership, because although Corcoran stated he had sold the horse, he continued to pasture and water the horse for no compensation, the horse still held Corcoran’s brand, and no bill of sale existed.

Jahn v. Great American Assur. Co., 2004 WL 765240 (N.D. Ill. 2004)

Plaintiff’s horse died of colic and the insurance company denied the claim because the insured failed to fully disclose, on the insurance application, the colic problems the horse had previously suffered, and failed to give timely notice of the condition that led to its euthanasia. The court granted summary judgment to the insurer, ruling that the failure to fully disclose the prior colic problems was a material misrepresentation.

Jewett v. Hertrich, 2004 WL 1487105 (Ky. Ct. App. 2004)

Buyers of stallion shares entered into an agreement that required them to pur-chase mortality insurance, but a separate document gave an unfettered right to rescind for a one-year period. Buyers did not procure the insurance and the stallion died in the one-year period. The trial court held that the buyers were

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entitled to their money back. The court of appeals reversed, holding that failure to fulfill the condition to procure insurance prohibited rescission.

2003

Clarendon Nat’l Ins. Co. v. Roberts, 120 S.W.3d 141 (Ark. Ct. App. 2003)

Roberts and Turman acquired ACKADACKADOO for $20,000 at a claim-ing race, but during the race the horse was injured and had to be put down. Their farm had an equine mortality policy which covered all their horses and newly-acquired horses. The policy extension provision, however, stated that it was subject to the insurer receiving notice within 5 days of acquisition. Based on this, the insurer denied coverage. The court held that the provision was subject to two different interpretations: (1) (the insurer’s) that notice was a precondition of coverage; or (2) (the insured’s) that notice was only required to extend coverage beyond the five days and that coverage was automatic before then. The court ruled that because the policy was ambiguous, and because all ambiguities are to be construed against the insurer, that coverage existed.

Hiscox Dedicated Corporate Member v. Wilson, 246 F. Supp. 2d 684 (E.D. Ky. 2003)

Ralph Wilson purchased a Thoroughbred colt at a Keeneland yearling sale. He boarded the colt at Saxony Farm in Kentucky. A couple of months after the purchase, Saxony Farm noted that the colt had swelling in its right rear leg. An x-ray exam determined that there was a fracture. Saxony Farm sent a notice to the Lloyd’s London broker advising Lloyd’s of a chip in the hock, and that surgery would need to be performed. In the ensuing months, surgery was performed, but the horse’s condition continued to deteriorate, largely because of progressing infection. After three (3) months passed, the infection did not resolve. The Farm staff contacted the adjuster for permission to euthanize the horse because it was chronically lame. Lloyd’s gave its consent and the horse was euthanized the next day.

The Lloyd’s policy contained a “Surgical Operations Extension Clause” that provided continuation of coverage without additional premium. However, there were several conditions precedent to Lloyd’s liability under such clause, including notice requirements. Lloyd’s denied Wilson’s claim for coverage, resulting in a lawsuit by Lloyd’s, and a counterclaim by the insured for bad faith.

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Twin City Fire Ins. v. Delaware Racing Ass’n, 840 A.2d 624 (Del. 2003)

Breeze riders were injured at a racetrack and made a claim under the track’s umbrella liability policy. The umbrella carrier for the track refused coverage due to an exclusion for “practicing or participating in horse racing.” The sum-mary judgment was granted to the track, however. The court reasoned that the exclusion’s application was ambiguous as to whether it applied to breeze riders, thus the policy was to be construed against the insurer/drafter. The Delaware Supreme Court affirmed. The court agreed with the trial court’s determination that “practicing” meant practice activity directly related to a scheduled race.

2002

Agricultural Ins. Co. v. Matthews, 301 A.D.2d 257 (N.Y. App. Div. 2002)

Matthews leased a horse from Nestora. The lease agreement provided an option for Matthews to purchase the horse. Although he was under no obligation to do so, Matthews purchased equine mortality insurance on the horse. The horse died before the option was exercised, an event which terminated the lease. Both Matthews and Nestora claimed the proceeds. The court ruled that although Matthews treated the horse as his own, he did not in fact own it and therefore was not entitled to the proceeds. The court awarded the proceeds to Nestora, but under the court’s “powers of equitable distribution,” Matthews was award-ed his premiums paid and an a proportionate refund of his leasehold interest.

Donovan v. Hartford Fire Ins. Co., 2002 WL 31866249 (Neb. Ct. App. 2002)

Donovan’s horse was insured for mortality by Hartford. The policy covered death by one of 20 enumerated causes. The horse was found with a piece of wood lodged in him, indicating that he had tried to jump a fence. Donovan sued Harford when they refused to pay. In an answer to an interrogatory asking the cause of death, Donovan stated “unknown.” On this basis, the trial court granted summary judgment to Hartford. The court of appeals affirmed, because Donovan had the burden of showing the horse died from one the enumerated causes. The court rejected Donovan’s plea that he tried to amend his answer to show that there was circumstantial evidence that the horse was chased by a dog (an enumerated coverage) because the evidence was speculative.

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1998

Nat’l Union Fire Ins. Co. v. Liberty Nat’l Bancorp, Inc., 1998 WL 773673 (6th Cir. 1998)

This case is a post-script to the Archie Donaldson case. (After the $7 million verdict in favor of Donaldson, Liberty National and Donaldson settled for $6.2 million.) National Union Fire Insurance filed a declaratory judgment action to determine that its D & O policy did not afford Liberty National Bank coverage for the expenses it incurred in the Donaldson suit. The district court ruled that the vast majority of the losses were not covered by the policy. The Sixth Circuit affirmed because “Liberty is seeking reimbursement for Donaldson’s claims that, quite simply, did not involve Liberty’s directors or officers.”

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Intellectual Property

2014

Churchill Downs, Inc. v. Commemorative Derby Promotions, 2014 WL 3908521 (N.D. Ga. 2014)

On cross-motions for summary judgment the court ruled that Churchill Downs had a valid common-law trademark in “Louisville Jockey Club.” The defendants sought reconsideration based on evidence of abandonment due to long gaps in the commercial use of the mark. The court agreed, and held that Churchill Downs had abandoned the mark.

The court also had ordered defendants to transfer their registration of the “Louisville Jockey Club” to Churchill Downs. The court likewise reconsidered that ruling.

The court also had originally held that defendants’ use of “Julep Condition” on shirts violated Churchill Downs’ “Mint Condition at the Kentucky Derby” trademark. On reconsideration, the court decided it did not infringe.

2009

Nokota Horse Conservancy, Inc. v. Bernhardt, 666 F. Supp. 2d 1073 (D.N.D. 2009)

The Nokota Horse Conservancy had been the traditional breed registry for Nokota horses. A former board member, David Bernhardt, registered “Nokota” as a trademark, and started an Association to round up and register Nokota horses. The Conservancy sued for trademark infringement, and moved for a preliminary injunction. The court held that the Conservancy showed a likeli-hood of success on the merits because it appeared to have a protectable com-mon-law trademark, and the use of the mark by Bernhardt and the Association was likely to cause it harm.

2007

Rose v. Triple Crown Nutrition Inc., 2007 WL 707348 (M.D. Pa. 2007)

Feed company purchased a photograph of AFLEET ALEX winning the Preak-ness, and used it in its advertisements. Jockey Jeremy Rose sued for invasion of privacy and right of publicity. The court denied a motion to dismiss, holding that Pennsylvania recognized both causes of action, and the facts alleged met the elements of the causes of action.

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Tennessee Walking Horse Breeders’ and Exhibitors’ Ass’n v. Nat’l Walking Horse Ass’n, 2007 WL 4365784 (M.D. Tenn. 2007)

The Tennessee Walking Horse Breeders’ and Exhibitors Ass’n (“TWHBEA”) was the traditional registry for Tennessee Walking Horses, and had copyrighted its registry and registration certificates. The National Walking Horse Associ-ation (“NWHA”) established a registry as well, and registrants submitted the pedigrees and registry numbers from the TWNBEA registry. The TWHBEA sued the NWHA for copyright and trademark infringement.

The district court, after a trial, held that the TWHBEA registry and certificates were entitled to copyright protection, and enjoined the NWHA from using information from the registry and certificates. The NWHA was also required to return the TWHBEA certificates in its files, to the owners. The court also awarded damages against NWHA for willful infringement. However, the court rejected the trademark infringement claim because there was no showing of likelihood of confusion.

2000

Int’l Sporthorse Registry v. Oldenburger of America, 2000 WL 988525 (N.D. Ill. 2000)

Verband, a breeding association registry of sport horses, since 1923 used its O and Crown mark to certify that stallions, mares and foals meet its standards. Through agreements, ISR was authorized to use the mark in the United States. However, ISR registered the mark as its own. ISR later filed suit against a Verband affiliate, Oldenburger of America to restrain its use of the mark. OA failed to respond to the suit, and ISR obtained a permanent injunction by default. Verband continued to use the mark and later sued ISR in Virginia to enjoin use of the mark. Verband’s suit was dismissed based on the res judicata effect of the ISR suit.

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Intentional Infliction of Emotional Distress

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

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Intentional Infliction of Emotional Distress

2001

Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001)

Judy Taylor owned two rather worthless horses to whom she was emotionally attached. She entrusted them to a friend of a friend after she became physically unable to take care of them. The caretaker sold the two horses for slaughter for a total of $1,000.00. Taylor sued, and the jury awarded compensatory and punitive damages for intentional infliction of emotional distress. On appeal, the Kentucky Court of Appeals affirmed, holding that the tort applied to the conduct itself, not to the subject of the conduct.

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Intertrack Wagering and Simulcasting

INTERTRACK WAGERING AND SIMULCASTING

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2012

Horseman’s Benevolent & Protective Ass’n v. Dewine, 666 F.3d 997 (6th Cir. 2012)

The Interstate Horseracing Act required the approval of the state’s horseman’s group to permit interstate off-track betting. Ohio passed a law allowing the Racing Commission to overrule a decision of the horseman’s group if it withheld consent. The HPBA sued when the Racing Commission ruled that the group acted in bad faith in withholding consent to a simulcast because the percentage take was insufficient. The district court held that the Ohio state law was preempted by state law. The Sixth Circuit affirmed, holding that the Ohio law “is a slight to the federal one.”

2011

Bensalem Racing Ass’n v. Pennsylvania State Harness Racing Comm’n, 19 A.3d 549 (Pa. Commw. Ct. 2011)

Racetrack sought license to conduct telephone wagering. Competing track sought to intervene, but the Racing Commission denied the intervention. On appeal, the court held that the competing track was entitled to intervene.

Gilbert v. MEC Oregon Racing, Inc., 251 P.3d 788 (Ore. Ct. App. 2011)

Owners of track had a contract with operators governing fees to be paid from wagering. A dispute arose over whether fees were owed under the provision with respect to simulcasting. Based on the contract provision and a previous decision in the dispute, the court held that simulcast wagering was included in the provision.

In the Matter of Reconsideration of the Distribution of the Casino Simulcasting Special Fund, 2011 WL 2416910 (N.J. Super. Ct. App. Div. 2011)

The New Jersey HBPA challenged the distribution of the Casino Simulcasting Fund from 2005 through 2008. The court agreed that the distributions for 2005 and 2006 were invalid as having been made after Commission members met privately to discuss the applications for distribution. The distributions for 2007 and 2008 were upheld, however.

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2010

Catskill Regional Off-Track Betting Corp. v. New York Racing and Wagering Bd., 77 A.D.3d 1256 (N.Y. App. Div. 2010)

Off-track betting company objected to simulcast license granted to harness track. He contended on appeal that the license was improper because the track had not yet been licensed to conduct racing. The appeals court rejected this argument.

In re Magna Entertainment Corp., 438 B.R. 380 (Bankr. D. Del. 2010)

Owner of several racetracks, which was a chapter 11 debtor in bankruptcy, was sued in an adversary proceeding by operators of simulcast facilities. They alleged that the funds due them under contracts with the tracks for payment to bettors and their fees were not assets of the bankruptcy estate because the funds were held in trust. On a motion to dismiss, the bankruptcy court ruled that to the extent the simulcast operators were subrogated to the bettors they paid, the funds were held in trust and not part of the estate. However, to the extent the funds were payable under the contracts for fees, those funds were part of the bankruptcy estate and the simulcast operators had a mere claim for breach of contract.

New York Racing Ass’n v. Nassau Regional Off-Track Betting Corp., 909 N.Y.S.2d 866 (N.Y. Sup. Ct. 2010)

NYRA sued an OTB corporation for unauthorized live simulcasting of its races. The OTB corporation moved to dismiss. The trial court ruled that the complaint of NYRA stated a claim for conversion, unfair competition, and violation of the Federal Communications Act of 1934. The personal claim of NYRA’s President was dismissed as he was deemed a public figure.

2008

Capital Racing v. California Horse Racing Bd., 75 Cal. Rptr. 3d 384 (Cal. Ct. App. 2008)

A dispute arose between a harness track and another track as to whether the other track was required to simulcast the races from the harness track. The California Racing Board determined that the track had to carry the signal, but contingent on payment of “impact fees”. The harness track sued the Board – effectively an appeal from the decision. The trial court ruled in favor of the track, but on appeal, the court of appeals held that the statute of limitations had

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run. According to the court, the applicable statute of limitations was the one specified in the statute governing the specific agency, not the general statute of limitations in the Administrative Procedures Act.

In the Matter of New Jersey Sports and Exposition Auth., 2008 WL 2002006 (N.J. Super. Ct. App. Div. 2008)

Township challenged the issuance of a license to an off-track betting facility adjacent to an age-restricted housing development. The court upheld the va-lidity of the Off-Track and Wagering Act despite its purported conflict with the Open Meetings Act.

Suffolk Regional Off-Track Betting Corp. v. New York State Racing and Wagering Bd., 900 N.E.2d 970 (N.Y. 2008)

New York law provided that “nighttime” OTB simulcasting of Thoroughbred races would require a payment to regional harness racing tracks (which had previously had an exclusive right to be simulcasted at night). A dispute arose as to the meaning of the statute with respect to credit from daytime harness racing against the nighttime payments, and as to whether the payments were to be made on a regional, or track-by-track basis. The court of appeals of New York held that the OTB operations were not entitled to the credit, and that the payments were to be calculated on a track-by-track basis rather than a regional basis.

2007

Choctaw Racing Services, LLC v. Kentucky HBPA, 2007 WL 3124693 (W.D. Ky. 2007)

Choctaw Racing’s bid to simulcast the Kentucky Oaks and the Kentucky Derby was blocked by the “horseman’s veto” of the Kentucky HBPA, which was exercised in an effort to get Choctaw to pay more proceeds to the Oklahoma Purse account. Choctaw Racing moved for a preliminary injunction, but did not succeed for failure to show a likelihood of success on the merits. It then sought to voluntarily dismiss the case, but the HBPA sought to convert it to a declaratory judgment action, and moved to file a counterclaim. The court allowed the voluntarily dismissal, and refused the counterclaim, on the basis that there remained no controversy as Choctaw abandoned its efforts to si-mulcast the races.

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NYRA v. New York City Off-Track Betting Corp., 836 N.Y.S.2d 487 (N.Y. App. Div. 2007)

NYRA had an expired agreement with New York’s off-track betting organiza-tion, and sued to collect what it contended were increased simulcast fees owed under the agreement. The court granted the OTB’s motion for summary judg-ment because NYRA’s “notice of claim” was defective and improperly served.

2006

Hawthorne Race Course, Inc. v. Illinois Racing Bd., 851 N.E.2d 214 (Ill. App. Ct. 2006)

Illinois’ formula for distribution of a portion of the handle to horsemen was 25% for live racing and 50% for simulcast racing. As simulcasting became more popular, the Illinois legislature passed a statute allowing “recapture” of some of the simulcast purse distribution for the benefit of the tracks, because the handle for live racing dropped as a result of increased simulcasting.

Two licensed tracks in Illinois merged, resulting in a track closing, which caused a dispute as to the method of calculating recapture. The Racing Board sided with the horsemen, denying recapture from the former racing facility. The court of appeals upheld the decision.

2004

Raceway Park, Inc. v. State of Ohio, 356 F.3d 677 (6th Cir. 2004)

Until the passage of HB 561, Ohio did not permit simulcasting to tracks on non-race days. HB 561 changed that, but created a scheme whereby the portion of the commission that would have otherwise been diverted to the purse fund was instead diverted to a combined purse fund. The funds were distributed from the combined purse fund by a formula which favored some tracks over others. The legislation also created the “50% Rule” whereby 50% of the money wagered at a satellite location is allocated to the simulcast host.

The allegedly disadvantaged tracks challenged the legislation as unconstitu-tional, asserting it violated the Takings Clause of the Fifth Amendment, and violated Equal Protection. Summary judgment was awarded the defendants and upheld by the Sixth Circuit. The Sixth Circuit agreed with the district court that because prior to the passage of HB 561 the tracks had no property interest in the commissions, they had no “property right” subject to a “taking.”

The Sixth Circuit alternatively opined that even if they had a property interest, the challenge failed under Fifth Amendment analysis because the investment

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in simulcasting was made by the tracks after their awareness of HB 561, and because the onerous economic impact could be limited by simply not hosting a simulcast.

The Sixth Circuit also rejected the Equal Protection challenge. The affected tracks argued that HB 561 created irrational classes without a legitimate purpose because it arbitrarily shifted business revenues from one private business to another. The Sixth Circuit answered that Ohio was entitled to make that clas-sification because it could have legitimately determined that the benefits and burdens accompanying simulcast-only racing are different from those created by live horse racing, and that the revenues should be allocated differently.

2003

Pennsylvania Nat’l Turf Club v. State Horse Racing Comm’n, 821 A.2d 676 (Pa. Commw. Ct. 2003)

Tracks applied to the Racing Commission to receive instate simulcasts of Quarter Horse and Arabian horse races with pari-mutuel wagering, where those races are transmitted as part of a full-card Thoroughbred simulcast. The Commission denied the request, perceiving that the statute did not authorize it. The court upheld the Commission’s decision because the statute specifically only addressed Thoroughbred and harness racing.

2001

Ocala Breeders’ Sales Co. v. Florida Gaming Centers, Inc., 793 So. 2d 899 (Fla. 2001)

Owner of Jai Alai claimed that a provision of Florida’s intertrack wagering law was unconstitutional as special legislation. The Florida Supreme Court agreed because if more that one applicant applied for a license, the law was structured so that, as a practical matter, Ocala would (and did) always prevail.

2000

Heartland Jockey Club v. Ohio State Racing Comm’n, 739 N.E.2d 355 (Ohio Ct. App. 2000)

Beulah Park was put between a rock and a hard place when the Racing Commission permitted it to simulcast the Kentucky Derby, but only on the condition that it make both its live and satellite-received races available to all tracks in Ohio authorized to receive them. This was problematic because the Kentucky Racing Commission denied southern Ohio tracks permission

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to receive the Derby. The Ohio Court of Appeals held the action of the Ohio Racing Commission invalid because it was based on a faulty interpretation of the statute. According to the court, the statute that requires simulcast guests to receive all approved simulcast racing programs offered by simulcast hosts only applies to “simulcast racing programs” and not “live racing programs.” Beulah Park’s proposed racing program met the definition of a “live racing program” and thus need not have been shared with all tracks.

New York Racing Ass’n v. Hoblock, 704 N.Y.S.2d 52 (N.Y. App. Div. 2000)

NYRA sued to vacate an order of the New York Racing and Wagering Board that permitted the state OTB to transmit live-call races over the cable channel, to enable telephone betting. The appellate division held that the statute did not expressly permit telephone wagering on transmissions that are not simulcast, and they are therefore prohibited.

1999

Birmingham Racing Comm’n v. Alabama Thoroughbred Ass’n, 775 So. 2d 207 (Ala. Civ. App. 1999)

The Birmingham Racing Commission had a rule that 5% of the handle from simulcasting would be deposited in a fund to be used for live horse racing purses. After the Birmingham Race Course elected not to have live racing in 1997, the Racing Commission revoked the rule, retroactively. The Alabama Thoroughbred Association sued, but the Alabama Court of Appeals ruled that the Association had no standing.

Jefferson Downs Corp. v. Louisiana State Racing Comm’n, 727 So. 2d 644 (La. Ct. App. 1999)

Livingston Downs sued the Racing Commission for granting licenses to Evan-geline Downs, which licenses enabled it to relocate in a parish that allowed off-track betting. The Court of Appeal of Louisiana held that Livingston Downs had no standing.

Kentucky Off-Track Betting, Inc. v. McBurney, 993 S.W.2d 946 (Ky. 1999)

Bettor at Corbin’s TB facility covered gambling debts with a promissory note. The Kentucky Supreme Court ruled that Kentucky statutes prohibited

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the collection of the promissory note, as it constituted a gambling transaction void under KRS 372.010.

Lone Oak Racing, Inc. v. State, 986 P.2d 596 (Or. Ct. App. 1999)

Lone Oak racing met with the State Racing Commission to request repeal of a rule regarding simulcasting privileges. Instead, it came away from the meeting believing its application for racing dates would be denied. It sued in court for a declaration concerning the interpretation of a racing statute. The court of appeals ruled that the suit was properly dismissed because it presented no justiciable controversy, and because the Racing Commission had exclusive jurisdiction concerning the award of racing licenses.

Maryland Racing Comm’n v. Cloverleaf Enterprises Inc., 738 A.2d 898 (Md. Ct. Spec. App. 1999)

Cloverleaf, which ran Rosecroft Raceway, a harness track, terminated its par-ticipation in a simulcasting arrangement with Maryland Thoroughbred tracks, Laurel and Pimlico. Instead, it sought permission from the Maryland Racing Commission to simulcast Thoroughbred races from other states. The Racing Commission denied the request, and Cloverleaf sued. The trial court sided with Cloverleaf, finding that the Maryland statute at issue did not preclude interbreed simulcasting. The court of appeals reversed. Although it agreed with the trial court that the statute did not preclude interbreed simulcasting, it held that the Racing Commission had extensive authority over racing, and that its determination that the proposed arrangement would harm the Thoroughbred industry was supported by substantial evidence.

New England Horsemen’s Benevolent and Protective Ass’n v. Rockingham Ventures, Inc., 1999 WL 350653 (D. Mass. 1999)

Rockingham operated a track in Salem, New Hampshire, and had a simulcasting agreement with the New England HBPA. A dispute occurred and the HPBA sued Rockingham in Massachusetts. Rockingham challenged long-arm juris-diction over it. The court ruled that it had jurisdiction because Rockingham simulcasted races run on Massachusetts tracks and advertised in the Boston Globe.

Rocky Mountain Greyhound Park, Inc. v. Wembley, PLC, 992 P.2d 711 (Colo. Ct. App. 1999)

Under an agreement between dog racing track and Arapahoe Park, a horse racing track, dog racing track simulcast horse races and received 5% of the

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gross receipts. In 1996, the state legislature changed the fee to 4%. The dog race track challenged the reduced fee as violating the Equal Protection Clause. The court upheld the act, however, finding that the legislature had rational grounds for treating the two types of tracks differently. The court deferred to the legislature’s determination that a lesser financial burden should be imposed on horse race tracks. Among other reasons cited was the higher cost of horse ownership than dog ownership.

1998

Raceway Park, Inc. v. Ohio State Racing Comm’n, 1998 WL 769792 (Ohio Ct. App. 1998)

Raceway Park challenged the decision of the Racing Commission to charge each simulcast track with fees to cover the costs associated with collection of simulcast funds as being beyond the scope of its authority. The court of appeals ruled that its declaratory judgment action was improper and that it failed to exhaust its administrative remedies.

Wonderland Greyhound Park, Inc. v. State Racing Comm’n, 696 N.E.2d 964 (Mass. App. Ct. 1998)

State claimed unclaimed winnings from simulcasting, and dog and horse tracks sued for a declaration that the state had no right to such winnings because si-mulcasting was separately regulated. The Court of Appeals of Massachusetts sided with the state.

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Labor and Employment

LABOR AND EMPLOYMENT

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Labor and Employment

2016

Mayhew v. Hermitage Club, 2016 WL 6997490 (D. Vt. 2016)

Employee of country club claimed she was wrongfully terminated in part because she raised concerns about the club’s mistreatment of horses. The court denied summary judgment on the issue, stating that there were sufficient facts for a jury to conclude that her raising concerns about the treatment of the horses was a motivating factor.

2015

Mott Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 237 (D.D.C. 2015)

Trainer sought to hire an assistant trainer, a foreigner, as qualified under the Immigration and Nationality Act as one with “extraordinary ability” in certain fields such as the arts. The Immigration Service denied the request. On a mo-tion for a preliminary injunction, the court upheld the determination, noting that Thoroughbred racehorse training does not qualify as a field in the “arts.”

2013

Packer v. Indiana Dep’t of Workforce Dev., 995 N.E.2d 680 (Ind. Ct. App. 2013)

Indiana exempted “agricultural labor” from unemployment insurance require-ments. Packer owned and managed a stable where she raised, managed, and conducted husbandry services for horses. She also boarded horses for others and taught riding lessons. The court held that the latter two pursuits were not “agriculture” and thus work by employees engaged in those activities was not exempt. Because Packer did not keep separate records for work on such activities, she was liable for unemployment compensation taxes on the employees’ entire wages.

2012

Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372 (E.D.N.Y. 2012)

Grooms, hot walkers, and exercise riders sued trainer Nick Zito for failure to pay overtime at the FSLA-mandated one-and-a-half rate. Zito contended they

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were paid a flat salary for work that was not to exceed 40 hours a week. The employees sued, and both sides moved for summary judgment.

With respect to the grooms, the court granted summary judgment against Zito. Despite the conflicting evidence on the hours worked, because at the time Zito did not keep careful records of the actual hours worked, the grooms’ testimony prevailed as a matter of law.

With respect to the hot walkers, the evidence that they worked more than 40 hours was deemed less compelling, and therefore summary judgment in their favor was denied.

With respect to the exercise riders, they failed to produce evidence that they worked over 40 hours a week. Therefore, Zito was granted summary judgment.

Significantly, the court rejected the defenses that the higher-than-mini-mum-wage salary included compensation for overtime. The court also re-jected Zito’s contention that there was a policy prohibiting overtime work. It also refused to dismiss Zito individually, although the actual employer was a corporation.

2000

Ritter v. Hill ‘N’ Dale Farm Inc., 231 F.3d 1039 (7th Cir. 2000)

Groundskeeper of farm was fired in a downsizing move, and sued on the basis of age discrimination. His claim was dismissed on summary judgment because he did not show that the reason the farm fired him was pretextual.

1999

Davric Marine Corp. v. Maine Harness Racing Comm’n, 732 A.2d 289 (Me. 1999)

Racetrack owner appealed from decision of the state Harness Racing Commis-sion certifying results of a union election. Its claim that there were irregularities in the election procedure was rejected by the appellate court.

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Land Partition

LAND PARTITION

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Land Partition

2002

Dewrell v. Lawrence, 58 P.3d 223 (Ok. Civ. App. 2002)

This case involved the partition of a ranch. The commissioners held that the ranch could not be partitioned without impairing the value of the parcels be-cause equal division would impair the value of each. The trial court likewise denied partition, holding that the parcels could not be divided into unequal tracts to avoid such impairment. The court of appeals reversed, holding that the court was authorized to partition into unequal tracts to equalize the values.

Kimmel v. Thomas, (Fayette Cir. Ct. Ky. 2002)

Partition action between two long-time Thoroughbred farm co-owners resulted in the trial court’s determination that partition into two tracts, even two unequal tracts, would result in overall impairment of the value of the property as a horse farm. Partition was therefore denied and the farm was ordered sold as a whole.

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213

Land Use and Zoning

LAND USE AND ZONING

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215

Land Use and Zoning

2014

Drury v. LeCompte, 2014 WL 1301534 (Ill. App. Ct. 2014)

Adjacent property owners took action against landowners for operating a com-mercial horse boarding operation in an R-1 zone, which permitted agricultural use. The Zoning Board agreed, but the adjacent landowners filed suit seeking an injunction. The dismissal of that claim was appealed, and the court of appeals reversed. It held that exhaustion of administrative remedies was not necessary.

Township of Webber v. Austin, 2014 WL 1614613 (Mich. Ct. App. 2014)

Austin acquired land zoned industrial and began a horse rescue operation. The township sought to enjoin him. The trial court held that the operation was a valid non-conforming use of the property and denied the injunction. On ap-peal, the court of appeals analyzed the case as whether Austin was permitted to use the land for a rescue operation under Michigan’s “right to farm” act, and held that it did. It remanded the case, however, for a determination of whether the operation was conducted in accordance with accepted agricultural management practices.

2013

O’Marrow v. Roles, 2013 WL 3752995 (Del. Ch. 2013)

Neighborhood association sued land owner for violating restrictive covenants resulting from the horse training business. The court recommended summary judgment in part due to apparent violations.

2012

Chappelle v. Burch, 2012 WL 762333 (Tenn. Ct. App. 2012)

As a result of prior litigation, landowners entered into an agreed order that they would not use their property except as residential and to stable and pasture horses. They conducted a horse show, and adjacent land owners sought to have the landowners held in contempt. After hearing evidence that commercial sta-bles commonly hold horse shows, the trial court denied the contempt motion. The court of appeals affirmed.

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Davidson v. City of Edwardsville, 281 P.3d 598 (Kan. Ct. App. 2012)

Purchasers of horse farm housed some 44 horses in their breeding and horse rescue operation. The city cited them for violating an ordinance limiting the number of animals and for excessive environmental waste. The court held that the ordinances were valid in that they were health ordinances rather than zoning ordinances, thus could apply to existing use of the land.

Erthel v. May, 736 S.E.2d 514 (N.C. Ct. App. 2012)

Plaintiffs sued landowners to prevent them from using their land for commer-cial boarding. The trial court issued an injunction, but the court of appeals reversed. It held that the restrictive covenant did not unambiguously restrict commercial use. Summary judgment on the defendant’s counterclaim for abuse of process was affirmed.

Yaters v. Kemp, 979 N.E.2d 678 (Ind. Ct. App. 2012)

Neighbors sued operator of shooting range claiming it was a nuisance that interfered with their use of their property for horse riding. The trial court grant-ed partial summary judgment to the operator. The court of appeals reversed, holding there were facts supporting the claim of a nuisance.

2011

LeCompte v. Zoning Bd. of Appeals, 958 N.E.2d 1065 (Ill. App. Ct. 2011)

Property owners sought review of the denial of the order of the zoning board to cease suing their property, zoned R-1, for the commercial boarding of horses. The court upheld the Zoning Board’s determination that commercial boarding was not agriculture. The court noted that such use causes a significant increase in traffic and notice.

Rosenfeld v. Zoning Bd. of Appeals, 940 N.E.2d 891 (Mass. App. Ct. 2011)

Neighbors appealed Zoning Board’s decision to grant a permit to farm owner to construct a horse-training facility. The court upheld the decision, holding that a horse-training facility was an agricultural use.

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Land Use and Zoning

2010

Matthies v. Killingworth Planning and Zoning Comm’n, 2010 WL 2681910 (Conn. Super. Ct. 2010)

Adjoining landowner administratively appealed from determination of zoning board granting landowner’s application for special exception to permit her to operate a riding stable on her property. The court declined to reverse, holding that the determination was within the board’s power and was supported by substantial evidence.

Pardue v. Perdue Farms Inc., 925 N.E.2d 482 (Ind. Ct. App. 2010)

Commercial horse breeding operation claimed that the adjacent turkey-grow-ing operation was a nuisance, alleging that foals died and mares failed to get pregnant as a result of contamination. The court of appeals affirmed the trial court’s determination that the evidence was insufficient to establish a causal connection between the problems with the horses and the turkey operation.

Rudolph v. Golick, 2010 WL 4183685 (Me. 2010)

Landowners were granted a permit to construct a riding arena, based on the permitting for “animal husbandry”. The trail court reversed. On appeal, the trial court’s ruling was vacated and the permit reinstated because the permit was based on factual findings of the zoning authorities.

Wright v. Patrikeas, 2010 WL 3385565 (Mass. Land Ct. 2010)

Pony riding business was deemed incidental to the land-owner’s riding acad-emy, which was an agricultural use. Therefore, the agricultural use exception to the special permit requirement applied to an easement needed to access the property.

2009

Coggin v. City of Westerfield, 2009 WL 3065053 (Mass. Land. Ct. 2009)

Riding academy sought to expand its facility but was thwarted by the local zoning board, which asserted that a special permit was needed. On appeal from the board’s decision, the court held that a riding academy was an agricultural use exempt from the permit requirement, but held that excavation did require a permit.

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Keene v. Zoning Bd., 22 So. 3d 665 (Fla. Dist. Ct. App. 2009)

Landowner was granted a special use permit to operate a riding school. A neighbor appealed. The appeals court held that the permit was contrary to the county development code.

2008

Borrelli v. Zoning Bd. of Appeals, 941 A.2d 966 (Conn. App. Ct. 2008)

Landowners adjacent to a horse boarding facility that was zoned agricultural complained that the facility violated zoning regulations because it was a “livery”, which was not permitted. The zoning authorities determined that no violation occurred. The court upheld the determination. It reviewed several dictionary definitions of “livery” and concluded that livery did not mean the commercial boarding of horses; rather, it meant hiring out horses. The court further determined that horse boarding was “agriculture.”

Tennyson v. Zoning Hearing Bd. of West Bradford Township, 952 A.2d 739 (Pa. Commw. Ct. 2008)

Landowner successfully obtained a zoning board grant of a special exception to develop a stable with a riding arena in a residential zone. Opponents appealed. The court held that the stable was a permitted exception. The opponents also complained that the arena was an improper accessory use because it was larger than the stables, and was thus not really an “accessory” but a primary use. The court held that the size was not determinative, and it was properly determined to be an accessory use because its use was subordinate to the stables.

2007

Bice v. City of Rexford, 2007 WL 2915611 (Kan. Ct. App. 2007)

The Bice’s kept horses for resale on their farm within the city limits of Rexford. Rexford passed an ordinance prohibiting farm animals in the city. The Bice’s claimed that the ordinance was in effect a zoning ordinance, and thus they were entitled to pre-existing use protection. The court disagreed, holding that the ordinance was a general police-power ordinance, and not a zoning ordinance because regulation of animals is a matter of police power.

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Land Use and Zoning

2006

Duffy v. Milder, 896 A.2d 27 (R.I. 2006)

Dispute arose between town and neighbors of land owners who were using their property in equestrian activities. The property had been used in such a manner for decades, and the town grew up around it, and was subsequently zoned residential. The landowners claimed that the use for equestrian activities was exempt from the zoning as a non-conforming use, and that the issue was res judicata in any event because the municipal court had previously ruled in their favor. The court disagreed on both counts. It held that res judicata did not apply because the municipal court only had power to punish zoning violations, and not declaratory judgment power so as to declare the use lawful. Further, the landowner’s predecessor had effectively abandoned the non conforming use when he previously sought to have the property zoned for residential development.

In the Matter of Tavalario, 901 A.2d 963 (N.J. Super. Ct. App. Div. 2006)

Landowner was deemed to not have a “commercial agricultural” exemption from the town’s zoning laws for his horse operation. The exemption was available to those who showed income of $2,500 from farming operations. The State Agricultural Division determined that this standard was not met. Landowner appealed on the basis that the method used by the agency failed to take into account the imputed value of horses and race winnings. The court held that the failure to take into account the imputed value of horses was not error because there was no showing that the horses were likely to be sold. Also, race winnings are “divorced from agricultural production.”

Seward County v. Navarro, 133 P.3d 1283 (Kan. Ct. App. 2006)

County sued landowners to enjoin the use of their farm as a horse-training facility. The land was zoned agricultural. The landowners had constructed a track for training, and the track drew moderate crowds during Sunday work-outs. The trial court held that horse training was an agricultural purpose. The Kansas Court of Appeals disagreed. It held that although horses are livestock, training was not a “traditional agricultural pursuit” and was in connection with entertainment. It remanded, however, to determine whether the landowners were exempt because training was a pre existing use that preceded the zoning. The court stated that the burden of proof was on the landowners.

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2004

DaSilva v. Barone, 849 A.2d 902 (Conn. App. Ct. 2004)

Horse owners challenged restrictive covenants in a deed. The appeals court ruled that the restrictive covenants were unenforceable because no “common plan of development” existed as not all the lots contained the restriction.

Moran v. City of New Rochelle, 346 F. Supp. 2d 507 (S.D.N.Y. 2004)

Landowners sued the City of New Rochelle and city officials for allegedly tar-geting them by passing zoning regulations to prohibit them from keeping horses on their property. The landowners alleged a host of violations of constitutional protections, actionable under 42 USC § 1983. Most claims were dismissed and individuals were determined to have qualified immunity. However, the claimed violation of the Equal Protection Clause survived summary judgment, the judge noting that there was evidence that the ordinance was specifically targeted at the landowners, and selectively enforced. The court concluded that this was sufficient evidence of malicious bad faith necessary to make a claim for an Equal Protection violation.

Turner v. Caplin, 596 S.E.2d 525 (Va. 2004)

Restrictive covenant on subdivision lot had an exemption for harboring live-stock and poultry. The Supreme Court of Virginia held that this exemption allowed stabling of horses. The court also held that pasturing of horses was not a nuisance per se.

2003

Access Now, Inc. v. Town of Jasper, 268 F. Supp. 2d 973 (E.D. Tenn. 2003)

The Town of Jasper’s zoning regulations prohibited keeping a horse at a residence. Tiffany Masterton was suffering from spina bifida, which caused numerous complications. She was given a miniature horse, but the town advised her guardians they were in violation of the town ordinance. She sued, contend-ing that this constituted discrimination under the Americans with Disabilities Act, asserting that the horse was a service animal under the ADA. The court determined that, in fact, the horse was a pet. Further, the testimony revealed that Tiffany was capable of walking. The court awarded judgment to the town.

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Land Use and Zoning

Robbins v. Racetrack Training Ctr., Inc., 833 So. 2d 306 (Fla. Dist. Ct. App. 2003)

Racetrack Training Center was the title holder of about 14 acres on which it operated a training center. The property appraiser for Miami appraised it, but denied it the lower assessment rate for land used for agricultural purposes. The court of appeals disagreed, stating that the fact that horses were boarded qualified it as an agricultural use.

2002

Hinds County Bd. v. Leggette, 833 So. 2d 586 (Miss. Ct. App. 2002)

The Zoning Board ruled that a riding arena was not permitted in an agricultural zone. The court of appeals disagreed, holding it was an “agricultural use,” as there was no fee charged, and it was largely used privately.

2001

Wing v. Zoning Bd. of Appeals,767 A.2d 131 (Conn. App. Ct. 2001)

The court held that the landowner was not entitled to a “nonconforming use” exception to the zoning prohibition against large animals because she moved the horse to the subject property just before the zoning regulation went into effect-specifically to try to create such nonconforming use.

2000

Courtaulds Fibers v. Long, 779 So. 2d 198 (Ala. 2000)

Plaintiff kept horses on property adjacent to defendant’s rayon fabric man-ufacturing plant. Plaintiff alleged that the high carbon disulfide emissions harmed his horses, and sued for nuisance, trespass, negligence, wantonness, and emission of an abnormally dangerous instrumentality. The jury returned a verdict for $1 million.

The court of appeals reversed and remanded, holding that insufficient evidence was presented to support the nuisance and negligence claims, but held that sufficient evidence was presented as to the trespass claim. It ordered a new trial on the trespass claim only.

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Jerrel v. State, 1999 P.2d 138 (Alaska 2000)

When neighbors complained of horses grazing pursuant to a state grazing lease, the leases were terminated under the pretext that the horse owners failed to brand their horses. The Alaska Supreme Court ruled that the branding regulation was invalid because it was not adopted in accordance with law.

1999

Equus Associates Ltd. v. The Town of Southhampton, 37 F. Supp. 2d 582 (E.D.N.Y. 1999)

Landowner engaged in lengthy administrative and legal proceedings to have the town issue a permit for him to operate a polo pony facility. Following appeals to the state court, the town was directed to issue a permit, and impose restrictions. The town failed to act promptly, and the landowner filed a com-plaint against the town officials for violation of his civil rights, specifically, Equal Protection. The district court granted the defendants summary judgment because the landowner failed to show that his operation was “similarly situated” to other property where permits were granted.

OPM-USA-Inc. v. County of Marion, 1999 WL 1427699 (M.D. Fla. 1999)

OPM proposed erecting a cell tower in the horse country around Ocala, and its application was approved by the Planning Commission staff. The Marion County Zoning Commission, however, after a hearing at which many local horse farm owners expressed their outrage, denied the application, largely because the tower would be incompatible with the horse farms. The applicant sued under the Federal Telecommunications Act. The federal court, though, up-held the decision of the Zoning Commission, as based on substantial evidence.

U.S. v. Shenise, 43 F. Supp. 2d 1190 (D. Colo. 1999)

Horse owner was charged with grazing his horses on BLM land in Colorado. He asserted Colorado’s “Open Range Law” as a defense to the charge. Colorado’s “Open Range Law” provides that a person whose property has been damaged cannot recover for trespass by livestock unless, at the time of the trespass, the complaining party has maintained a lawful fence in good repair to protect his property. The owner of the livestock is under no statutory duty to fence in his livestock. The federal district court rejected that defense, holding that the Supremacy Clause precluded the effect of the Colorado statute, which was in conflict with the Federal Taylor Grazing Act.

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Land Use and Zoning

1998

Hourihan v. Town of Middletown, 723 A.2d 790 (R.I. 1998)

Members of an equestrian academy challenged ordinances which prohibited riding on beaches during certain times of the year. The Rhode Island Supreme Court ruled that the ordinances were reasonable, not confiscatory, and thus constitutional.

Whipple v. City of Cordele, 499 S.E.2d 113 (Ga. Ct. App. 1998)

Whipple challenged a city ordinance prohibiting the keeping of horses in the residential areas of the city by alleging a violation of her constitutional rights. The Georgia Court of Appeals upheld the dismissal of the claim because “keep-ing horses is not a fundamental right, and those who do so do not comprise a suspect class,” and because “the ordinance obviously serves a legitimate public purpose.”

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PERSONAL INJURY

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2018

Dullmaier v. Xanterra Parks & Resorts, ___ F.3d ___, 2018 WL 1056654 (10th Cir. 2018)

Dullmaier was on a one-hour horseback trail ride through the Yellowstone Wilderness. One of the horses in front of him spooked when startled by some ducks. This caused several other horses to spook, and Dullmaier’s horse ran off, eventually resulting in him falling off the horse, which killed him. His wife brought a wrongful death suit against the livery asserting negligent mis-representation and negligence. The district court granted the livery summary judgment.

On appeal, the court first upheld the dismissal of the negligent misrepresen-tation claim. It held that under Wyoming law, such a claim was limited to commercial transactions, which this was not. It determined that Wyoming had not adopted Restatement (second) of toRts § 311, which expanded negligent misrepresentation as a generic tort.

The court also upheld the dismissal of the negligence claim. The court noted that Wyoming had an equine immunity statue providing for a complete defense for an injury resulting from an inherent risk of recreational activity. It then engaged in a discussion of the 10th Circuit “trilogy” of horse-injury cases (Cooperman, Kovnat, and Sapone), and laid out “three key guideposts” from those cases to determine if the injury resulted from an inherent risk. In this case, the court determined that both the initial spooking by the ducks, and the chain reaction caused by one horse spooking inciting other horses to spook, was an inherent risk of equine activity. Significant was the fact that this trail ride was in a wilderness area, where encounters with wildlife were possible. The court rejected the argument that the livery had a duty to minimize those risks.

Groves v. Woods, ___ S.W.3d ___, 2018 WL 560417 (Ky. Ct. App. 2018)

The Groves orally leased a house next to a pasture. There was a dispute whether they actually also leased the pasture. After they moved in, they went into the pasture, where Mrs. Groves was injured by a horse. They sued the horse owner and the property owner. After discovery, the trial court granted summary judgment to the defendants.

The court of appeals affirmed. With regard to the land owner, the court held that even if the Groves were tenants rather than trespassers, because the pres-ence of a horse was known, there was no unknown latent condition of land for which liability could be based. The court also rejected the argument that because the doctrine of comparative negligence applied, summary judgment

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completely barring the claim was improper. The court held that this did not apply in a landlord tenant case, even if it applied to a premises liability case.

Perkinson v. Courson, ___ N.E.3d ___, 2018 WL 1250643 (Ill. App. Ct. 2018)

Plaintiff and defendant were friends, experienced riders, and Illinois residents. They went on a trail ride at a facility in Missouri. They signed a release before the ride, which release covered negligence by other participants. During the ride, defendant’s horse kicked out with its rear legs and struck plaintiff on her shin, causing a significant injury. Plaintiff sued in Illinois, alleging violation of the Illinois Animal Control Act and negligence. The trial court granted a motion to dismiss part of the claim, and later granted summary judgment on the remainder.

On appeal the court of appeals engaged in a lengthy analysis of the choice of law to apply, ultimately ruling that Missouri law governed. Thus the Illinois statutory claim was properly dismissed. The court then determined that under Missouri law, the release was effective to bar the negligence claim, even against a fellow participant, as it was unambiguous and conspicuous.

2017

Bernard v. Blue Cross Blue Shield of Michigan, 2017 WL 3524692 (W.D. Wisc. 2017)

A relatively inexperienced rider participated in a group “breakfast trail ride” conducted by Woodside Ranch. She repeatedly complained that something was wrong with her saddle, but the wranglers reassured her that the saddle was fine. When mounting her horse after the breakfast ride, the saddle slipped and the rider was injured.

The rider sued Woodside Ranch, which moved for summary judgment based on the Wisconsin Equine Immunity Statute. The court denied the motion, holding that there were genuine issues of material fact on two exceptions in the statute: faulty tack and willful or wanton disregard. The evidence presented by Woodside Ranch that its wranglers regularly inspected the equipment was not sufficient to eliminate an issue of fact where there was other evidence that the saddle was old and worn out. The repeated ignoring of the rider’s complaints about the saddle could support the claim for wanton disregard, which, according to the court, includes “indifference.”

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Brown v. Country View Equestrian Center, Inc., 2017 WL 4417729 (W.D. Wisc. 2017)

Horsewoman brought her own horse to equestrian center for private lessons. She was injured when her horse reacted to another high-spirited horse that was allowed to enter the ring. She sued the equestrian center, which moved to dismiss on the basis of the equine immunity statute. The plaintiff asserted that the exception for providing an inappropriate equine applied. The court rejected this because horsewoman brought her own horse, and thus the equestrian center did not “provide” the equine. It thus granted the motion to dismiss.

Dilley v. Holiday Acres Properties, Inc., 2017 WL 2371295 (W.D. Wisc. 2017)

Dilley was injured on a trail ride on property owned by Holiday Stables. The cause of the fall from her horse was disputed. Dilley sued Holiday Stables and the livery providing the trail ride.

Holiday Stables moved to strike Dilly’s expert, who summarily opined that she reviewed the case “and found no evidence that Holiday Stables had pro-cedures to ensure Dilley’s safety.” The court held that that was insufficient under FRE 702, and that the issue in the case was not whether Holiday Stables had procedures to insure a rider’s safety, but whether the equine immunity statute applied. The court also struck the medical experts as not being properly identified under the court’s procedures.

The court also granted the motion for summary judgment because the defen-dants were entitled to immunity under the Wisconsin Equine Immunity Statute. Dilley asserted that immunity was defeated for failure to post the required sign. The court, though, held that the statute only required an equine professional to post a sign; there was no requirement for an equine activity sponsor to post a sign. Dilley also argued that the statute did not immunize negligence by participants. The court disagreed, stating that it implicitly did immunize negligence because “negligence by the participants in equine activities is recognized as an inherent risk.” The court further noted: “If a plaintiff could avoid the immunity statue by showing negligence, then the equine immunity statute would be essentially pointless.”

The court addressed the motion as it related to the livery. Dilley claimed that the sign the livery posted was not verbatim as required in the statute. The court countered that there were two flaws in that argument: (1) the posting of the sign was not a pre-requisite to immunity; (2) there is “no authority holding that the notice is not effective unless it is a word-for-word match with the statute.”

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Fishman v. GRBR, Inc., 403 P.3d 660 (Mont. 2017)

Rider was injured when the saddle slipped during a trail ride. He sued the livery. The livery’s motion for summary judgment was granted based on the immunity statute and the slippage being an inherent risk of equine activity. On appeal the rider argued that the exception for faulty tack applied. This was rejected because faulty tack was not originally alleged, and the rider had assumed the risk of saddle slippage when he signed the “release” that explicitly stated that saddles may slip.

Kirkpatrick v. Hidden View Farm, 153 A.3d 216 (N.J. 2017)

Karen Kirkpatrick often went to a friend’s farm to do horse-related chores while her friend was recovering from an injury. She usually brought her minor children with her. On the day of the incident, she brought her two sons who were playing on the farm but not with the horses, while she tended to horse activities. A horse bit one of the sons.

Suit was brought to compensate for the injury. The trial court granted sum-mary judgment based on the Equine Activity Statute. On appeal the plaintiff argued that the Equine Activity Statute did not apply because the son was not a “participant” in equine activity. However, the court of appeals agreed with the trial court that the son met the definition of “participant” because the expansive definition in the Act included those who “accompany” a person engaged in equine activity.

Larson v. XYZ Insurance Co., 2016 WL 1165438 (La. Ct. App. 2016), 226 So. 3d 412 (La. 2017)

Mrs. Larson visited an equine facility where horses were boarded with others for the purpose of seeing and feeding the horses carrots. She had been previ-ously told that was an acceptable food. Unfortunately when feeding one of the horses the horse bit her thumb off. She sued.

The trial court granted summary judgment based on the equine immunity stat-ute. The statute provided immunity from a claim from a “participant in equine activity” but excluded a spectator, unless the spectator was in an unauthorized area. The trial court concluded that Mrs. Larson was “inspecting” and therefore a participant engaged in equine activity.

On appeal the Louisiana Court of Appeal reversed. It determined that Mrs. Larson did not fit the definition of a “participant engaged in equine activity.” “Equine activity” was a defined term in the statute, listing several included activities, but did not include feeding horses. The facility alternatively alleged that even if she was a spectator, the immunity applied where a spectator places

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himself in an unauthorized area and in immediate proximity to equine activity. The court held that there was an issue of fact as to this issue, given there was some dispute as to the signage and the permission she was supposedly given.

Review was granted by the Supreme Court of Louisiana, which summarily ruled that the court of appeals was correct. Two concurring opinions effectively defeated the precedential value of the decision.

Penunuri v. Sundance Partners, Ltd., 301 P.3d 984 (Utah 2013), on remand, 380 P.3d 3 (Utah Ct. App. 2016), cert., ___ P.3d ___, 2017 WL 3697701 (Utah 2017)

Resort patron signed a waiver before participating in a guided trail ride. She was injured when her horse bolted and she fell to the ground. She sued and filed a motion to have the waiver deemed unenforceable. The trial court ruled that the waiver was enforceable. The court of appeals affirmed.

At the Utah Supreme Court, the plaintiff argued that the waiver was invalid because it was contrary to the equine immunity act. The court disagreed be-cause the act did not specifically invalidate such releases. The court also held that the release, which released ordinary negligence, was not against public policy as expressed by the equine immunity act. The release was ineffective against a claim for gross negligence.

On remand, plaintiffs pursued their gross negligence claim, alleging that the guides’ allowing gaps between riders in the train of horses was gross negligence. The trial court granted summary judgment on that claim and also excluded the reports of plaintiffs’ proposed experts. The court of appeals affirmed. It stated that at best the evidence presented by the plaintiffs showed only ordi-nary negligence, rather than showing that the defendants exercised “no care”.

Certiorari was granted by the Utah Supreme Court to clarify the standard for dismissing a gross negligence claim on summary judgment. Previous precedent appeared to indicate that summary judgment was only appropriate where the standard of care was “fixed by law.” The court held that summary judgment could be granted even where the standard of care was not fixed by law. In this case, allowing too large a gap between riders was insufficient to show indifference to consequences or mere slight care. The court thus affirmed the summary judgment.

Swigart v. Bruno, 220 Cal. Rptr. 3d 556 (Cal. Ct. App. 2017)

During an endurance riding competition, Swigart was injured by Bruno’s horse, which bolted out of control as a group of seven horses in a single file line came to a stop in a narrow area. In the process of slowing down, Bruno’s

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horse bumped the rear of Stevens’s horse, Stevens’s horse kicked Bruno’s horse, Bruno was thrown from his horse, and Bruno’s horse took off, sideswiping two horses ahead and striking Swigart, who was standing on the ground at a ride checkpoint. Swigart’s suit against Bruno was dismissed on summary judgment. The court of appeals affirmed, stating: “Because this type of equine conduct is among the risks inherent in endurance riding, the assumption of the risk doctrine applies to Swigart’s claims based on Bruno’s alleged negligence. Accordingly, as a matter of law, Bruno did not owe Swigart a duty of due care to protect her from the risk of the harm that she suffered during the Ride.” The court also rejected the claims for gross negligence and strict liability (because the “normal behavior” of the horse that caused the accident could not be con-sidered a “vicious propensity”).

Tabor v. Daugherty, 2017 WL 2829403 (Ky. Ct. App. 2017)

Bobbi Tabor inquired about purchasing horses advertised for sale by Joe Daugherty, who ran a horse stable, and Kim Adleta, who bought and owned horses with Joe. When Bobbi arrived at the stable to see the horses, she mount-ed one named FLASH. She lost control and was injured. The details of what was represented about the horse and the details of the accident were disputed.

After discovery, the defendants moved for summary judgment, which was granted based on Kentucky’s Farm Animal Activity Act. In an opinion that confuses several concepts, the Kentucky Court of Appeals reversed. It held that even though Bobbi represented herself as experienced, there was “a jury ques-tion as to whether Joe was put on notice that Bobbi did not possess sufficient ability to ride FLASH.” The court also opined that there were genuine issues of material fact concerning whether Appellees willfully and wantonly disre-garded Bobbi’s safety, pointing only to defendant’s employees attempting to stop the horse as evidence. It further held that the unpredictability of an animal was an “inherent risk” of equine activity, that defendants’ attempt to stop the horse was not such a risk: “But while the Act relieves Joe and his employees of the duty to eliminate such inherent risks, it does not entitle them to create those risks.” No mention was made of the exception in the Act for negligence.

2016

Blumenthal v. Bronx Equestrian Center, 26 N.Y.S.3d 78 (N.Y. App. Div. 2016)

Recreational rider who was thrown from a horse sued the stable. Summary judgment to the stable and the city was denied. On appeal the court reversed, stating that “[t]he risk of a horse acting in an unintentional manner resulting in a rider being thrown is a risk inherent in the sport of horseback riding.”

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The report of plaintiff’s expert did not defeat summary judgment because the opinion was conclusory.

Gadd v. Warwick, 792 S.E.2d 773 (Ga. Ct. App. 2016)

Warwick provided horses to a camp under a lease requiring him to provide horses appropriate for children. A 19-year-old rider of one of the horses was injured when the horse jumped over a small stream. She sued Warwick. The trial court granted summary judgment based on the immunity statute.

The court of appeals affirmed. It held that the act provided immunity unless an exception applied. The plaintiff argued that there were issues of fact as to whether two exceptions applied. The first was the exception for providing an unsuitable horse. The court rejected this because the “providing” contemplated in the act is the providing of a particular horse to a particular rider, which was done by the camp and not by Warwick. The second argued exception was for “willful and wanton” conduct, which plaintiff contended was supported by the testimony of their expert who opined that the horse was unsuitable as being five years old, was the son of a barrel racing horse, and had acted “fresh” by shaking his head. The court rejected this stating that at most his would lead to an issue of fact as to negligence, not wantonness.

Germer v. Churchill Downs Mgmt., (Fl. Dist. Ct. App. 2016)

Germer, a former jockey, was visiting Santa Cruz Ranch with his roommate, to see his roommate’s horse. He was required to obtain a visitor’s pass. While approaching the barn, another horse jumped out of his stall and bit Germer. He sued, and the facility moved for summary judgment based on the Florida Equine Activities Liability Act. The trial court ranted summary judgment based on the Act.

On appeal Germer argued that the Act applied only “participants’ in equine activities, which was defined to mean only those visiting or using a facility “as part of an organized event or activity.” The appeals court held that Germer met that definition because he was required to obtain a visitor’s pass.

Kane v. Majoda Stables, 2016 WL 1723842 (N.J. Super. Ct. App. Div. 2016)

Jeff Kane was injured while trying to mount a mule during a riding lesson. The instructor was apparently not paying attention. He sued the facility, but the defendant moved to dismiss based on the New Jersey Equine Activities Liability Act, which provided that assumption of risk was a complete defense. The trial court granted the motion, but the court of appeals reversed. The ba-

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sis was that the trial court considered matters outside the pleadings, without allowing for discovery, which was impermissible upon a motion to dismiss.

Markovitz v. Cassenti, 90 Mass. App. Ct. 1102 (Mass. App. Ct. 2016)

Prior to riding lessons, riding student signed an application and a release. After she was injured, she sued the riding school contending they were negligent in providing an inappropriate horse. The trial court awarded summary judgment based on the release.

The court of appeals affirmed, noting that releases in sporting events were valid in Massachusetts. It also held that the exception to the equine immunity statute for insufficient evaluation of ability did not create a duty or provide and exception to release.

Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745 (M.D. Pa. 2016)

After a trail ride, customer galloped the horse she was provided, with permis-sion of the livery. She fell and was injured, allegedly as a result of a stirrup breaking. She sued the livery.

The livery moved for summary judgment based on the broad release she signed before the ride, and the Pennsylvania equine immunity statute. The court first determined that the release was valid and applied to a claim for defective equipment. However, under Pennsylvania law, a release is ineffec-tive against a claim for reckless conduct, and the court perceived there to be sufficient evidence of recklessness. Significant was the court’s observation of the “cavalier attitude toward safety” as evidenced by asserting that customers assume all risks.

The court further held that the Pennsylvania equine immunity act was no bar to a negligence claim. (It is unclear why this was addressed because the release barred the ordinary negligence claim in any event). The court held that the equine immunity act merely codified the common-law doctrine of assumption of risk, and under the common law, one does not assume risks that he or she is not aware of, such as defective equipment. The court stated that the doctrine only applied to risks known by the participant, or those that are “so obvious that knowledge could be inferred.”

Sawczysyn v. Coyne, 2016 WL 2935471 (Conn. Super. Ct. 2016)

Heather Sawczysyn was injured when the horse she was provided for riding instruction suddenly galloped and bucked, causing Heather to fall. She sued for negligence. The defendants moved for summary judgment under the im-

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munity statute. The court denied the motion, as the statute had an exception for negligence and there were issues of fact as to whether the defendants were negligent and whether the fall was caused by such negligence.

2015

Carter v. Heitzler, 2015 WL 6470502 (Cal. Ct. App. 2015)

Carter, an experienced equestrian, was injured when thrown from a horse at defendants’ farm. She sued to recover, alleging negligence in allowing anoth-er horse, known to be dangerous and unpredictable, in the arena. That horse bolted and ran into a fence, allegedly spooked the horse Carter was riding, causing her to be thrown. The trial court granted summary judgment based on primary assumption of risk.

The court of appeals affirmed. The court noted that primary assumption of risk, in California, was a complete defense (contrasting it to secondary assumption of risk, which is akin to comparative negligence). It agreed with the trial court that a horse becoming unruly and crashing into a fence was an inherent risk of horseback riding. Faced with the claim that the proprietor increased the risk by allowing “a bad bad horse” to be ridden, the court likened the situation where a skier on an advanced run loses control. It noted that proprietors are not expected to prohibit participants from “pushing their skill level.”

Cornett v. Red Stone Group, Inc., 41 N.E.3d 155 (Ohio 2015)

Cornett was injured by horses who escaped from their enclosure at Red Stone’s stables. Cornett had been doing chores in the barn at the stables while the horses were out to pasture. She got trampled when she heard a noise and went to check on the horses. Her suit against Red Stone resulted in summary judgment in favor of Red Stone based on the immunity statute.

On appeal Cornett argued that the equine immunity statute was inapplicable because she was not an “equine activity participant,” given that she was doing chores in an area where horses were not then present. The court of appeals disagreed, holding that being in the vicinity of horses made her an equine activity participant. Cornett also argued that the defective gate entitled her to the “defective tack or equipment” exception to the immunity statute. The court held that the gate was not “equipment” and therefore the immunity exception did not apply:

While the meaning of “tack” in the statute indisputably encompasses such things as saddles and bridles, we conclude that “equipment,” defined as “the articles or implements used for a specific purpose or activity,” includes such things as, for example, riding helmets, and

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does not encompass gates or fence posts. In other words, “equip-ment,” as used in the statute, does not include conditions relative to the premises of the Stables, such as an allegedly defective enclosure, and Red Stone is accordingly entitled to immunity as an equine activity sponsor.

It thus affirmed the summary judgment.

Eriksson v. Nunnink, 191 Cal. App. 4th 826 (Cal. Ct. App. 2011); 183 Cal. Rptr. 3d 234 (Cal. Ct. App. 2015)

17-year old woman died in a fall resulting from the horse she was riding at a jumping competition tripping over a hurdle. Her parents sued her coach for negligence in providing an unsuitable horse, asserting claims both for the wrongful death of their daughter and for themselves for infliction of emotional distress. The trial court granted summary judgment based on assumption of risk.

In the first appeal, the court of appeals reversed, holding that the jury should decide whether assumption of risk barred the claim. The court also rejected the assertion that the release of liability barred the claim, because it was up to the jury to decide if the trainer was grossly negligent in providing an un-suitable horse.

The case was tried but the trial court granted a judgment for the defendants finding that no evidence was presented of willful and wanton negligence, exceptions to a valid release. The court of appeals affirmed. The court first held that the release per se was invalid because, although it was signed by both the rider and her mother, by its terms it named the “rider” only as the releasing party, and thus did not apply to the mother. Therefore the mother was not party to the release. Although the release was enforceable between the coach and the rider, it did not release the parents’ claim for wrongful death of their daughter as a wrongful death claim is not derivative. However, the release was effective, the court held, in negating the duty of ordinary care to the rider, and thus the parents’ wrongful death claim was barred. The court also held the “bystander” emotional distress claim of the parents was likewise barred, not based on the release per se, but on the fact that it established the defense of assumption of risk.

The court then turned to the question of whether there was sufficient evidence of gross negligence or wantonness, which if shown would avoid the release. After thoroughly reviewing the evidence presented at trial, including the testimony of experts, the court concluded that the plaintiffs had not established that the coach acted with “gross, or willful and wanton, negligence.”

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Quintanilla v. Thomas School of Horsemanship, 11 N.Y.S.3d 241 (N.Y. App. Div. 2015)

Student rider was injured when horse became spooked during an intermedi-ate lesson. The suit was dismissed on summary judgment based on primary assumption of risk. The appellate division affirmed, holding that the student “assumed the risks inherent in riding a horse, including falling when the horse acted in an unintended manner when spooked by a noise caused by another horse.”

Sanders v. Frank, 37 N.E.3d 1305 (Ohio Ct. App. 2015)

Sanders was injured when she voluntarily assisted in corralling a horse who had escaped. She sued the owner for negligence, alleging liability under the “running-at-large” statute. The trial court ruled that the horse owner was lia-ble for “negligently” violating the statute (the horse had escaped on previous occasions). However, the court also determined that Sanders “assumed the risk” and was therefore “more than fifty percent responsible” for her injuries, which prevented her recovery.

The court of appeals affirmed. It held that the “running-at-large” statute was not a strict liability statute, but only creates a presumption of negligence. Therefore defenses are available. Sanders alternatively argued that the rescue doctrine prohibited the defense, but the court held that the doctrine did not apply because there was no impending or imminent danger to human life: “The possibility of a motorist striking a horse is a real danger, but not imminent,” as the escaped horse was not on the roadway. Finally, Sanders argued that the evidence did not support a finding that she assumed the risk to such an extent that she was more than 50% responsible for her injuries. The court held that the doctrine of contributory fault was based on the degree of each party’s contribution to the plaintiff’s injuries, rather than the comparative reasonableness of their conduct. Sanders voluntarily put herself in the position of rescuing the horses, and was experienced with horses; therefore, the doctrine was applicable.

Wemer v. Walker, 2015 WL 2058960 (Ohio Ct. App. 2015)

Wemer was injured when helping separate two ponies that had begun fighting after being removed from a barn. Wemer sued for negligence and willful and wanton conduct. The trial court initially granted summary judgment to the defendant based on the immunity statute. The ruling was reversed on appeal because the defense was not raised in the answer to complaint. Upon remand, the defendant was granted leave to amend the answer to allege the immunity statute, then again successfully moved for summary judgment. On the second appeal, the court agreed that the amendment was properly granted. The facts

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did not support the “willful and wanton” exception to the immunity act, and thus summary judgment was properly granted.

2014

Barrett v. Leech, 2014 WL 3659366 (Cal. Ct. App. 2014)

Farrier died when the horse he was attending knocked him down causing him to hit his head on a rock. His widow sued the horse owner, who assisted in the trim, alleging premises liability due to the failure to keep the area clear of rocks. Summary judgment was granted the defendant. The court of appeals affirmed. It held that the doctrine of assumption of the risk inherently applied to farriers just as it would veterinarians. Further, premises liability does not apply where the condition is open and obvious, as the presence of rocks were in this case.

Carey v. Schwab, 969 N.Y.S.2d 619 (N.Y App. Div. 2013), 997 N.Y.S.2d 180 (N.Y. App. Div. 2014)

Horses got away from their restraints when their owners were at a local tavern. Carey attempted to help retrieve the horses. At one point Carey was holding the reigns of one of the horses, which “head swatted” Carey and knocked her unconscious, resulting in injuries. She sued the owners. The court denied sum-mary judgment. The ruling was affirmed on appeal because, although Carey had the ultimate burden to show the horse had a known vicious propensity, on summary judgment it was the defendant’s burden to show it did not.

After remand, Carey sought to amend her complaint to allege negligence. The amendment was denied, and Carey appealed. The court of appeals reversed. It held that Carey could attempt to prove her case in the alternative. “Thus, if [the horse’s] actions were determined to constitute a vicious propensity, [Carey] would be limited to pursuing a claim based on strict liability… If, however, a jury that [the horse’s] conduct did not constitute a vicious propensity, the jury could then decide whether defendant is liable based upon his alleged negligence in allowing the horse to stray from where it was kept.”

Dennis v. Nickajack Farms, Ltd., 2014 WL 7014534 (Ohio Ct. App. 2014)

Prospective buyer of a horse rode horse around a pen, but was bucked off twice, the second time resulting in a hip injury. His suit was dismissed on summary judgment based on the Ohio Equine Liability Law. On appeal he alleged that an issue of fact existed whether the exception for wantonness applied, pointing to his expert reports that the actions of the defendant were ‘deliberate.’ The

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court rejected that argument, noting that expert testimony concerning a party’s culpability was a legal conclusion and thus inadmissible evidence.

Duban v. Waverly Sales Co., 760 F.3d 832 (8th Cir. 2014)

Attendee at a horse auction was injured when a horse stepped on her as she was returning from the restroom through an alley in the auction barn. She sued for negligence in causing the condition that led to her injury. The auction company argued that the immunity statute applied, but the trial court held that the exception where the injury occurred in a place intended for non-participants to be present was applicable, and thus there was no immunity.

The court of appeals affirmed, holding that the exception applied even though the injured person was herself a participant, and the alley was the only way the public could obtain access to the restrooms from the bleachers. Non-par-ticipants could sit in the bleachers as well as participants.

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 WL 3906325 (D. Conn. 2014)

Day camp participant was injured when she was thrown from a pony. She sued the camp for negligence, alleging that the pony was too small and that the employees were ill-trained. The camp moved for summary judgment. The court first held that expert testimony was required to defeat the motion because horseback riding lessons require specialized knowledge. The court then determined that the plaintiff’s expert was unqualified because although he had experience working at camps, he had no experience with horseback riding. Summary judgment was therefore granted.

Estes v. Stepping Stone Farm, LLC, 160 So. 3d 299 (Ala. Civ. App. 2014)

Four-year old girl was injured while horseback riding at equine center during a birthday party. The injury occurred when she was pulled from the horse when it bolted. The girl and her father had arrived late to the party so did not participate in the preliminary safety instructions.

The girl’s family sued for negligence and wantonness. The equine facility’s motion for summary judgment was granted by the trial court based on the Equine Immunity Act. On appeal, the court discussed the applicability of the exception for failure to assess the ability of the rider (noting that the exception itself did not create liability and negligence still needed to be shown even if the exception applied). The court agreed that there was a genuine issue of fact concerning the sufficiency of the assessment, even though the inability to do so

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was a result of the girl arriving late. However, it held that the non-assessment was not the cause of the injury.

The court further held that the facts did not reveal any wantonness. Finally, it noted that the sign required by the statute was sufficient, even if a copy was not provided to the rider’s father.

Fox v. Knoblock, 2014 WL 4263715 (Mich. Ct. App. 2014)

Rider was injured when she fell after her horse began galloping. She sued the stable. The trial court held that the exception in the equine liability act for “negligence” applied because the stable’s riding assistant caused the horse’s increase in speed. It awarded the rider a judgment against the stable. The court of appeals reversed because it could locate no such evidence in the record.

Glover v. Weber, 2014 WL 4988156 (Wash. Ct. App. 2014)

Amanda Weber entered into an arrangement for a two-week trial of a horse boarded at Glover’s property. Amanda was injured when she fell off the horse. She sued the horse owner and Glover, the property owner. Glover moved for summary judgment based on the equine immunity statute, but the trial court denied the motion. The issue on appeal was whether a land-owner not engaged in regular public equine activity is an “equine activity sponsor” under the immunity statute. The court held that the definition was not limited to those providing services to the public, and therefore applied to Glover as an owner of land where equine activity was taking place.

Graham v. Shamrock Stables, 19 N.E.3d 578 (Ohio Ct. App. 2014)

Potential horse purchaser was injured when horse she was walking was spooked by an unruly dog. She sued under common-law negligence and under a statutory claim based on the strict-liability statute holding dog owners liable for injuries. The trial court granted summary judgment based on the equine immunity statute.

On appeal the majority of the court of appeals agreed that the equine immunity statute applied and barred the claim. The dissent noted that the dog-liability statute and equine liability statute were in conflict. Under principles of statutory construction, the dissent concluded, the equine immunity statute did not trump the dog-liability statute. “It is hard to fathom why the keeper of both the horse and dog should escape strict liability arising out of the act of the dog, merely because the dog caused the injuries via the instrument of the horse.”

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Holcomb v. Long, 765 S.E.2d 687(Ga. Ct. App. 2014)

Horse rider was injured when horse began to gallop and the saddle came loose. He sued the owner for negligence and willful and wanton conduct for failure to adequately tighten the saddle. The trial court granted summary judgment based on the Georgia equine immunity statute.

On appeal, the rider alleged that the exception for “faulty tack” applied. The court of appeals rejected that position: “we decline to construe that exception as encompassing tack that is inadequately secured but otherwise in good working order.” The court also rejected held that the exception for willful and wanton conduct did not apply because even if the owner had failed to secure the saddle properly, it might have amounted to “negligence or perhaps gross negligence” but it did not amount to “criminal or quasi-criminal conduct, recklessness, or indifference to the consequences so as to amount to evidence of willful or wanton disregard for the safety of the participant.”

Kovnat v. Xanterra Parks and Resorts, 770 F.3d 949 (10th Cir. 2014)

Xanterra conducted trail rides in Yellowstone National Park. Kovnat was injured on a ride when her saddle slipped and she fell under the horse. She sued for negligence, alleging that the saddle was not properly cinched, and that the stirrups were unevenly adjusted. The trial court granted summary judgment because the slippage and the uneven stirrups were an inherent risk of horseback riding, and thus Xanterra had immunity under the Wyoming Recreational Safety Act.

On appeal, the Tenth Circuit affirmed as to the improper cinching but reversed as to the uneven stirrups. The court first noted that the determination of whether a risk is inherent in an activity is normally to be determined by a jury. With regard to the cinching of the saddle, the court held that as a matter of law that was an inherent risk of horseback riding, because it was not easy for a wrangler to determine “with scientific precision” whether a saddle is sufficiently cinched. It therefore held there was not genuine issue of material fact, and affirmed the summary judgment with regard to that allegation.

However with regard to the allegation that the stirrups were uneven, the court held that such a condition was not as a matter of law an inherent risk. The court noted that the unevenness could be observed by the wranglers, who apparently made no effort to correct the unevenness. Thus the issue of whether that was an inherent risk was an issue of fact to be determined by a jury.

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Smith v. Landfair, 2014 WL 3756139 (Ohio 2014)

At a horse show, a horse owner was having trouble unloading a horse. The horse knocked the owner down, and Ms. Smith attempted to assist her. When she did, the horse kicked Ms. Smith, causing serious head injuries. Smith sued for negligence for attempting to handle an untrained horse. The trial court granted summary judgment based on the equine immunity statute.

The court of appeals reversed, holding that Ms. Smith was not a “spectator” and thus the immunity statute did not apply to her. 2011 WL 2454733 (Ohio Ct. App. 2011).

The Ohio Supreme Court granted review, and reversed the court of appeals. It held that “one who purposely places himself or herself in a location where equine activities are occurring and who sees such activity is a ‘spectator’ and hence an ‘equine activity participant’ within the meaning of” the equine immunity statute. 984 N.E.2d1016 (Ohio 2012).

The Ohio Supreme Court remanded the decision back to the court of appeals to consider the remaining issues. The court of appeals held that the term “con-trolling” as used in the immunity statute still applied even if the defendant lost control of the horse temporarily. Thus the immunity statute continued to apply. The court also rejected the argument that the “rescue doctrine” super-seded the immunity statute. However, the court remanded the case to the trial court to determine if there were sufficiently undisputed facts to grant summary judgment on the claim of wantoness – an exception to the immunity statute.

2013

Bloomer v. Shauger, 942 N.Y.S.2d 277 (N.Y. App. Div. 2012), aff’d 989 N.E.2d 560 (N.Y. 2013)

Next door neighbor of horse owner was assisting in burying a horse when an-other horse became unruly. He tried to restrain the other horse and injured his finger on one of the metal rings in the halter. He sued the owner for negligence and strict liability. The trial court granted summary judgment. The court of appeals affirmed, determining that there was no evidence that the horse was known to have “a proclivity to act in a way that puts others at risk of harm.”

The court also re-affirmed the New York rule that liability, if it cannot be based on strict liability, cannot be based on negligence.

The Court of Appeals of New York affirmed, noting that a “vicious propensity cannot consist of ‘behavior that is normal or typical for the particular type of animal in question’.”

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Einhorn v. Johnson, 996 N.E.2d 823 (Ind. Ct. App. 2013)

While young rider was riding in a practice ring at the state fair, the horse she was riding became spooked as a result of truck back-up alarm. When the horse was being stalled, the agitated horse got free, ran through the barn and trampled John Einhorn, a fair volunteer. He was severely injured and the fair’s workers compensation paid the medical bills.

Einhorn sued the fair and the family of the rider of the agitated horse. The fair moved to dismiss for lack of jurisdiction because of the workers’ compensation immunity. The court denied the motion because acceptance of workers’ com-pensation benefits, which Einhorn had not applied for, did not mean he was an employee under the act. The court, however, granted summary judgment to the fair on the basis of the equine immunity statute. The court of appeals affirmed on the basis running uncontrollably was an inherent risk of equine activity.

The trial court had also granted summary judgment to the family of the young rider. The court of appeals affirmed. It held that for liability for negligence to be imposed, there must be a showing of a known dangerous propensity. The horse’s agitated behavior before the accident “is not evidence of a dangerous propensity as a matter of law.”

Fenty v. Seven Meadows Farms, Inc., 969 N.Y.S.2d 506 (N.Y. App. Div. 2013)

Plaintiff was injured when she fell off a horse. Summary judgment was grant-ed on the basis of assumption of risk. The court of appeals affirmed, holding that falling off a horse was an inherent risk of horseback riding. The affidavit of plaintiff’s expert that the defendant unreasonably increased the risk was rejected as speculative, as the expert assumed facts that were not supported by the evidence.

Filer v. Adams, 966 NYS2d 553 (N.Y. App. Div. 2013)

Horse rider was injured when the horse she was riding was spooked by a dog who was accompanying a jogger.

The rider sued the jogger, who moved for summary judgment on the basis of assumption of risk. The motion was denied and the jogger appealed.

The court of appeals reversed, holding that the sole remedy for a claim involv-ing a domestic animal was a claim for strict liability, which required showing that the animal had a dangerous propensity. Because the rider did not make such an allegation, summary judgment was appropriate. The appellate court

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also rejected the notion that the jogger had a duty to minimize the reaction of the horse, which the court described as a “dubious concept, at best.”

Guinn v. Thomas, 2013 WL 3808010 (Ky. Ct. App. 2013)

During a trail ride, Jerry Guinn was directed to ride the horse back through a grassy area. He dismounted and led the horse through the high grass, but tripped on a concealed log and got stepped on by the horse. He sued for prem-ises liability, alleging negligent failure to mow the tall grass. The trial court granted summary judgment to the defendant.

On appeal, the court held that the tall grass could not be considered a dangerous latent condition for premises liability. The condition of the premises was readily apparent, and thus the owners owed no duty of care to Jerry. In addition, the owners had immunity under the equine liability act.

Hellen v. Hellen, 831 N.W.2d 430 (Wis. 2013)

Horse rider was accompanied by her mother-in-law to the farm where her horse was kept. While rider prepared to ride the horse, the mother–in-law held the lead rope while the rider saddled the horse. The horse moved forward and stepped on the mother-in-law’s foot, causing her to fall and break a hip.

The mother-in-law brought a negligence claim against the rider. The rider’s motion for summary judgment was granted on the basis of the equine immu-nity statute.

On appeal, the mother-in-law argued that the conduct did not relate to an equine activity, and therefore the act did not apply. The court held that participating in preparing the horse for riding was “related to” an equine activity.

The mother-in-law also argued for the exception for “providing an equine” without determining the participant’s ability to engage safely in the equine activity. The court agreed that the act of the rider having the mother-in-law hold the lead was “providing an equine”. Therefore, the court remanded for a determination of whether the rider made reasonable efforts to determine her ability to engage safely in the equine activity.

Messer v. Hi Country Stables Corp., 2013 WL 93183 (D. Colo. 2013)

Prior to a trail ride at a livery, rider signed a release as requested. However, the release form was mixed up with another company’s form and the form provided that the other party was released. The rider was injured and sued the livery. On summary judgment, the court held that he wrong party on the release was a result of mutual mistake, and reformed the release. The court then

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determined that the release was valid, as the factors for determining validity all favored the released party:

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

The rider also brought a products liability claim, the allegedly defective product being the saddle. The court held that a release was ineffective against such a claim. However, because horseback riding was a service, no products liability claim was valid, and thus summary judgment was appropriate.

The rider also brought a claim for “willful and wanton conduct”, which a release cannot waive. The court held that a contention that the livery did not perform the number of “saddle checks” that were appropriate was sufficient to raise an issue of fact, thus summary judgment was denied as to that claim.

Peck v. Verdi Trails West, Inc., 2013 WL 4520032 (Cal. Ct. App. 2013)

Peck was injured on a trail ride when her saddle slipped. Before the ride she signed a waiver. She sued for negligence, gross negligence, and intentional infliction of emotional distress, claiming that the trail guide was riding too far ahead and talking on her cell phone during the time she tried to get her attention about the slipping saddle. The trial court granted summary judgment.

Peck appealed the determination that there was no sufficient evidence to cre-ate triable issue as to gross negligence and intentional infliction of emotional distress. The court of appeals upheld the trial court, holding that the facts even if true would not show an extreme departure from the standard of care necessary to show gross negligence: “The mere failure to notice a problem over a 20-minute period during a trail ride over relatively flat trail was no more than ordinary negligence absent notification of a problem.” With regard to the infliction of emotional distress claim, there was no evidence that the guide was notified of Peck’s problem and ignored her.

Person v. Bowman, 2013 WL 663726 (Wash. Ct. App. 2013)

Bowman, as seller, and Herring, as buyer, executed a “Bill of Sale – Purchase Agreement” for a horse named TOBY, with installment payments to be made by Herring. The agreement provided that TOBY would remain with Bowman until Herring paid in full, and Herring would pay board and keep to Bowman during such period.

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Before Herring paid for TOBY in full, Herring rode TOBY, who was pulling a buggy being ridden by Person. An accident occurred and Person was thrown from the buggy and injured. She sued Herring and Bowman. The immunity from liability from the Washington Equine Liability Act was where the defen-dant “provided the equine” and did not make sufficient effort to determine the horse to behave safely. “Provided” was defined as to make a horse available by one who owns or controls the horse.

Bowman moved for summary judgment on the basis that the exception did not apply because she was not the owner of TOBY at the time of the accident. The trial court agreed and the court of appeals affirmed. The court ruled that as a matter of law the agreement conveyed ownership, and the residual con-trol was for the purpose of retaining a security interest. The court rejected the argument that there was a factual issue as to whether the parties intended a “lease-purchase.”

Valencia v. Diamond F. Livestock, Inc., 973 N.Y.S.2d 446 (N.Y. App. Div. 2013)

Rider was injured when horse in front of her kicked. Rider contended that the horses were too close together. She sued the livery. The livery sought summary judgment on the basis of assumption of risk. Summary judgment was denied and the livery appealed. The court of appeals affirmed the denial of summary judgment, holding that there was a triable issue of fact as to whether the actions of the livery increased the risk.

Vanderbrook v. Emerald Springs Ranch, 109 A.D.3d 1113 (N.Y. App. Div. 2013)

Horseback rider was injured when the horse brushed up against a tree during a trail ride. She sued the livery to recover for her injuries. The livery’s motion for summary judgment was denied. The court of appeals affirmed the denial. It held that there was a genuine issue of material fact as to whether the horse had a “known vicious propensity.” It held that release executed by the rider was “under these circumstances…” void as against public policy. The court rejected the defense of assumption of risk, stating there was evidence that defendants “unreasonably increased the risks of horseback riding by using a bitless bridle.”

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2012

Beckwith v. Weber, 277 P.3d 713 (Wyo. 2012)

Patron at ranch at Grand Teton National Park signed a “Visitor’s Acknowl-edgment of Risk” before embarking on a guided trail ride. During the ride, she was thrown from the horse. She sued for negligence to recover for her injuries. The jury verdict was in favor of the ranch because the injury resulted from an inherent risk of horseback riding. On appeal the patron argued about the appropriateness of the jury instructions. The court held that the definition of “inherent risk” that merely parroted the words of the statute was sufficient. The court also held that it was not error to refuse to give an instruction that the patron was presumed to have been using due care.

Bietsy v. Flynn, 2012 WL 246441 (Ky. Ct. App. 2012)

Bietsy, a horse trainer, was injured when a horse he was training threw him. He sued the owner of the horse and facility, but after discovery the trial court entered summary judgment in favor of the defendant based on Kentucky’s farm animal activities statute.

The court of appeals affirmed. The court reasoned that the farm animal activ-ities statute created a presumption of no negligence liability, and none of the exceptions applied. In face of the argument that the owner had not advised him of the risks, the court noted that he was very experienced with horses and knew the risks.

Brown v. Beets, 279 P.3d 193 (Okl. Civ. App. 2012)

Brown was injured when she was kicked during a trail ride being led by Beets at Beets’ farm. She sued for negligence but the trial court granted summary judgment on the basis of the release Brown signed and the Oklahoma Livestock Activities Liability Limitation Act. The court of appeals reversed, holding that there was an issue of fact as to whether a reasonable effort was made to provide a suitable horse. The court offered no explanation for how this avoided the release, other than the Beets conceded that it did.

Eburn v. Capital Peak Outfitters, Inc., 882 F. Supp. 2d 1248 (D. Colo. 2012)

Inexperienced rider fell from her horse when the horse accelerated and the saddle slipped. She sued the outfitter for negligence. The outfitter moved for summary judgment based on the release the rider signed. The court granted

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summary judgment because the release, which clearly and in bold letters precluded liability for negligence, was unambiguous.

Garvin v. Tidwell, 126 So. 3d 1224 (Fla. Dist. Ct. App. 2012)

Rider was injured from fall from a horse and sued boarding stable. She sent discovery requests, which were answered. The case was settled during medi-ation, but she later found out that the answers were incomplete. She moved the trial court to rescind the settlement agreement and re-open discovery. The trial court denied the motion but the court of appeals reversed, holding that the failure to produce material discovery was a sufficient basis to set aside the settlement agreement.

Hilz v. Riedel, 2012 WL 2135648 (Tex. App. 2012)

Thirteen-year-old girl was injured when horse she was provided to ride bolted and ran her into a tree. Summary judgment was granted to the horse owner under the Texas Equine Liability Act. The court of appeals reversed, holding that there was sufficient evidence that the owner did not sufficiently assess her abilities and provide a suitable horse, an exception to equine liability immunity.

Johnson v. Unique Vacations, Inc., 2012 WL 5869406 (11th Cir. 2012)

Vacationer in St. Lucia was injured on a horseback ride arranged by the re-sort but operated by The Pony Club. She sued the resort and the travel agent. The district court granted summary judgment. The court of appeals affirmed, holding that the evidence was clear that The Pony Club was not the agent of the resort or the travel agent.

Longino v. U.S. Dep’t of Agriculture, 912 F. Supp. 2d 424 (W.D. La. 2012)

Horseback rider approached downed power lines, and when he turned to warn others of the lines his horse acted up and charged the lines, electrocuting the horse and the rider. He sued the Department of Agriculture under the Federal Tort Claims Act, alleging that they neglected to guard the lines after extin-guishing a fire that occurred in the area. The court ruled that it had subject matter jurisdiction because there was an allegation of a dangerous condition known to a governmental employee, who failed to act. The court denied the government’s motion for summary judgment because there was an issue of fact as to whether the power lines were “open and obvious” and thus absolving the duty to warn.

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Mays v. Valley View Ranch, Inc., 730 S.E.2d 592 (Ga. Ct. App. 2012)

14-year-old girl was injured at summer camp when the horse she had hitched to a hitching rail got out of control and broke the rail which fell on her. Her suit was dismissed on summary judgment based on the Equine Activity Act, which barred recovery for an injury resulting from an inherent risk of equine activities.

On appeal, the plaintiff contended that the injury did not result from an inherent risk of equine activity because the broken rail, not the horse, caused the injury. The court rejected that argument, holding that the injury need not have been directly caused by the horse. The plaintiff also argued that the exception for a “known dangerous latent condition” applied, supporting her claim with an opinion from an expert that the rail should have been constructed differently. But because there was no evidence that the camp knew or should have known that the rail was defective, the exception was held inapplicable. In addition, the court added, the expert did not opine as to what industry standards were violated.

Nigro v. New York Racing Ass’n, 939 N.Y.S.2d 565 (N.Y. App. Div. 2012)

Exercise rider at Belmont was injured when the horse she was riding slipped and fell on her when the riding path crossed a road with loose gravel. Sum-mary judgment was granted based on the fact that she frequently encountered this condition, and therefore assumed the risk. The court of appeals affirmed, holding that the defendant track made out a prima facie showing of primary assumption of risk, and rider did not rebut it.

Shields v. International Resort Properties Ltd., 2012 WL 586900 (3d Cir. 2012)

Rider on a trail ride was thrown when her horse suddenly galloped. Her suit was dismissed on summary judgment. The court of appeals affirmed, holding that the rider came forward with no evidence of negligence, and the doctrine of res ipsa loquitur did not apply.

Soloman v. Taylor, 937 N.Y.S.2d 408 (N.Y. App. Div. 2012)

Rider was injured during a ride on defendant’s property when horse was spooked by dogs. Her suit against the property owner and the dog owner was dismissed on summary judgment. The court of appeals affirmed on the basis of assumption of risk. The court emphasized that the rider was experienced and was aware that dogs were present on the property.

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Stroman v. Bell, 2012 WL 4093578 (N.J. Super. App. Div. 2012)

A somewhat-experienced teenage girl was provided a horse that had no history of throwing riders. At one point she was permitted to ride back to the barn alone. The horse broke into a trot and she fell off and was injured. Two years later the owner sent a letter regretting the incident and claimed it was his neglect for letting her ride alone.

The girl sued but the suit was dismissed on summary judgment on the basis of the Equine Liability Act. The trial court reasoned that a horse breaking into a trot was an inherent risk of riding. It was not influenced by the admission of negligence in the letter of regret.

The court of appeals reversed. It held that the letter was an admission of negligence, and that the statutory exception from providing an inappropriate horse applied.

Toro v. New York Racing Ass’n, 944 N.Y.S.2d 229 (N.Y. App. Div. 2012)

Exercise rider was injured when horse he was riding got spooked by some-one opening a shade umbrella at the picnic area adjacent to the track. The trial court’s refusal to grant summary judgment was reversed on appeal. The appellate division stated that he assumed the risk of such an injury by riding knowing that activity was occurring at the picnic area.

Vendrella v. Astriab Family Limited P’ship, 660 A.3d 707 (Conn. App. Ct. 2012)

At a farm where child’s parents bought flowers, the parents and child ap-proached the fence to see a horse stabled there. The horse bit the child on the cheek, causing a serious wound. The child’s parents sued, alleging negligence. The farm owners moved for summary judgment, submitting an affidavit that they had never known the particular horse to bite. On that basis, the court granted summary judgment.

On appeal, the court addressed the parameters of the vicious propensity doc-trine, drawing a distinction between a specific animal known to have vicious tendency unusual to its kind, and a type of animal that inherently has a dan-gerous tendency. The court agreed with the plaintiff that even the latter type of dangerousness can create negligent liability, relying on § 518 (rather than § 509) of the Restatement, and thus reversed the summary judgment.

On discretionary review, the Connecticut Supreme Court agreed. It agreed with the court of appeals that a duty to exercise reasonable care existed regardless

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of whether the particular horse had a known dangerous propensity. The court held that to prove foreseeability, a plaintiff need only show that the class of animals to which the specific animal belongs has a natural tendency to inflict harm. The defendant can rebut such evidence by showing that the specific animal “or the particular class of animal” had “mischievous propensities…[that] … are less severe that the mischievous propensities of the species as a whole.” That constituted an issue of fact in this case.

White v. Elias, 4 N.E.2d 391 (Ohio Ct. App. 2012)

Horses escaped from a pasture onto adjacent land. Evelyn White was asked by the landowner to lead the horses home. When she approached, she was kicked and severely injured by one of the horses. She sued the owners of the horse and the owners of the land from which they escaped for strict liability and negligence. The trial court dismissed her claims on summary judgment.

On appeal, the court first determined that the doctrine of strict liability did not apply. Although Ohio had a doctrine of strict liability for damages done by an animal that trespasses onto private property, White was not the landowner and thus the doctrine did not apply. Instead, negligence had to be shown just as if the horse had trespassed onto a public roadway. The court held that there was an issue of fact and thus reversed on that claim.

2011

Barkley v. James, 2011 WL 900056 (W.D. Ok. 2011)

Girl was injured when horse purchased for her threw her. Parents sued the sellers, alleging they sold an inappropriate horse to an inexperienced rider. The motion to dismiss was denied; the court held that there was a plausible argu-ment that a duty was owed, and therefore a valid claim for negligence existed.

DeShields v. Mountain Laurel Resort & Spa, 2011 WL 1984151 (M.D. Pa. 2011)

Woman was thrown from a horse during a trail ride, and she sued stable for negligence. The stable moved for summary judgment based on assumption of risk. The stable contended first that the Pennsylvania Equine Activity statute provided the defense. But the statute required the posting of a sign, and the court perceived there was an issue of fact as to whether a proper sign was posted. The stable also asserted common-law assumption of the risk. The court rejected this doctrine: “Because a specific law is applicable, it would be inappropriate to find assumption of the risk is defense under the common law.” However, the court ruled that plaintiff simply showed no evidence of

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negligence, and thus granted summary judgment. The mere fact that plaintiff fell from the horse does not presume negligence occurred.

Ioan v. Koenig, 2011 WL 4444172 (Cal. Ct. App. 2011)

The Youngs owned horses but regularly let Elizabeth Koenig ride them and take others for rides. Koenig allowed Otilia to ride a horse, and during the ride she lost her balance, fell, and was severely injured. She sued the Youngs and Koenig for negligence and strict liability.

The Youngs’ motion for summary judgment was granted. On appeal, the court affirmed, holding that there was no vicarious liability from the relationship with Koenig, and there was no evidence that the Youngs were aware of any dangerous propensities of the horse.

Klyashtony v. Black Brook Stables, LLC, 2011 WL 2694392 (N.J. Super. Ct. App. Div. 2011)

Beginning rider was injured when horse threw him during his third riding lesson. His suit against the stable was dismissed pursuant to the New Jersey Equine Activities Liability Act. Summary judgment was upheld on appeal, as the accident resulted from a risk assumed by the rider.

Krieger v. Cogar, 83 A.D.3d 1552, 921 N.Y.S.2d 767 (N.Y. App. Div. 2011)

While being haltered, horse backed into and injured the plaintiff. The plaintiff made a claim under the New York statute that provided for liability where an animal is known to have vicious propensities. The trial court granted summary judgment to the defendant. The court of appeals affirmed, holding that the fact that horse showed excitability after being shipped to the farm was not a sufficient showing of a dangerous propensity.

Loftin v. Lee, 341 S.W.3d 352 (Tex. 2011)

Lee was injured after being thrown from a horse during a trail ride. Allegedly, the horse bolted when a vine wrapped around its flank. Lee sued the riding guide, alleging it was negligent to ride through an overgrown trail. The trial court granted summary judgment.

In an extensive analysis of Texas’ Equine Activity Act, the Texas Court of Appeals affirmed. Lee v. Loftin, 277 S.W.3d 519 (Tex. App. 2009). It held that the Act essentially created a doctrine of “inherent risk” as a version of “assumption of the risk” doctrine. The court noted that it was not unusual for

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a horse to react by bolting when wrapped with a vine. The court, though, held that there was an issue of fact as to whether such risk is inherent in a trail ride. Thus, summary judgment was not appropriate.

The court also noted that the exception in the Equine Activity statute for providing an inappropriate horse, may also apply. The defendant cited Lee’s experience as a horse owner and breeder. The court, however, noted that she had limited experience in horse riding.

On review, the Texas Supreme Court reversed the court of appeals. It held that “inherent risk” was not limited to risk innate in animal behavior, but was broad enough to include the type of risk on this trail ride, including the risk of sponsor negligence. “Construed so narrowly, the Act would accomplish nothing,” and “[i]t would have been pointless for the Legislature to limit liability where none existed,” the court noted. The court further noted that although what constitutes an inherent risk in equine activity may sometimes raise a factual issue, it “should be based on a common-sense understanding of the nature of equine activities.”

The court further rejected the applicability of the exception for failure to de-termine the ability of the participant, holding that there still must be showing of causation from that alleged failure.

Miller v. Home Ranch Co., 2011 WL 1755539 (D. Colo. 2011)

Miller and her family stayed at Home Ranch, and upon arrival signed a release (without reading it) that stated that recreational activities at Home Ranch involve risk, and waived any claim for injury or death “from any cause whatsoever.” She was injured when thrown from a horse on a horseback ride conducted by Home Ranch, and sued. Home Ranch moved for summary judg-ment based on the release. The court determined that the release was valid and precluded her claim. The court held that the release was not “unfair” because “the parties were not ‘greatly disparate’ in bargaining power and because Miller could have obtained horseback riding services elsewhere.” Further, the intent to limit liability was clear from the language, and the fact that the release also contained the warning required by the Colorado Equestrian Activity Act did not diminish the broader release language.

Moore v. 3 Phase Equestrian Center, Inc., 83 A.D.3d 677 (N.Y. App. Div. 2011)

Purchaser of horse was injured when thrown from horse and sued seller, al-leging that the seller had masked the horse’s aggressiveness by administering tranquilizers pre-sale. The seller submitted an affidavit on summary judgment

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that no tranquilizers had been given. Because the affidavit was unrebutted, the trial court granted summary judgment and the court of appeals affirmed.

Nacherilla v. Prospect Park Alliance, Inc., 88 A.D.3d 770 (N.Y. App. Div. 2011)

Rider injured during horseback ride sued. The motion for summary judgment of an organization that promoted bridle paths was denied for failure to deny requests for admissions. The appeals court reversed, stating that the request was not a matter involving a legitimate dispute.

Park v. Eckhart, 948 N.E.2d 871 (Ind. Ct. App. 2011)

Mounted police officer was injured when thrown by his horse. The officer sued the driver of the vehicle he claimed hit the horse. The trial court granted summary judgment to the defendant. The court of appeals reversed, finding that conflicting testimony regarding causation justified a trial.

Reilly v. Leasure, 2011 WL 2436667, 2011 WL 3427213 (Conn. Super. Ct. 2011)

Reilly was injured when she was kicked by Leasure’s horse while she was washing the horse at a horse competition. She sued alleging failure to warn. The court determined that there was disputed evidence as to Leasure’s knowledge of the tendency of the horse to kick, and therefore denied summary judgment.

Reilly also sued the organizers of the horse competition. The court granted summary judgment based on the Connecticut Recreational Equine Activity Assumption of Risk statute. The court held that Reilly was engaged in recre-ational activity under the meaning of the statute even though she was acting as an unpaid groom. The court noted that the statute was vague as to whether an injury arising out of an incident incidental to horseback riding was covered by the statute, and thus looked to the legislative history of the statute. Based on comments made by members of the legislature, the court concluded that the statue was not limited to injuries from horseback riding, but any injury from placing oneself in close proximity to large, powerful, and potentially dangerous animals. The court further held that the show organizers had no duty to screen horses to prohibit the entry of potentially dangerous horses.

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2010

Beattie v. Mickalich, 784 N.W.2d 38 (Mich. 2010)

In a very short opinion, the Michigan Supreme Court held that the Michigan Equine Activity Liability Act, which had an exception for a “negligent act or omission”, did not abolish a cause of action for negligence; it only abolished strict liability claims. A dissenting opinion recognized that the exception completely obliterated the Act.

Bloodsworth v. U.S., 2009 WL 2231649 (D. Ore. 2009), and 2010 WL 170261 (D. Ore. 2010)

Landowner was injured when her horses bolted as a result of shots being fired by U.S. government officials culling coyotes. Landowner sued under the Federal Tort Claims Act. The United States moved for summary judgment, asserting that the actions were not covered by the act thus the claim was barred by sov-ereign immunity. The court denied the motion because the shooting without notice violated the government’s own regulations.

After a trial, the court ruled that conducting an aerial hunt over plaintiff’s property created an unreasonable and foreseeable risk of harm to a person in plaintiff’s position. Judgment against the United States was rendered in favor of plaintiff.

Everett v. State Farm, 37 So.3d 456 (La. Ct. App. 2010)

Rider was injured when horse he decided to ride bolted. He sued the owners of the horse for negligently providing a horse. A jury verdict was rendered for the owners, and the rider appealed. The court of appeals ruled that because evidence was presented that the horse was not known to have a propensity for misbehavior, the verdict was proper.

Glenn v. Annunxiata, 72 A.D.3d 886 (N.Y. App. Div. 2010)

Rider injured when she fell during a riding lesson, allegedly as a result of the horse spooking when a piece of the metal roof fell in and made a loud noise. Summary judgment was granted to the arena owner.

The appellate division reversed, holding that the release (the terms were not set out in the opinion) did not release the arena owner from negligence, and that whether the rider assumed the risk of the fall was an issue of fact.

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Hubner v. Spring Valley Equestrian Center, 1 A.3d 618 (N.J. 2010)

Rider, after signing a release, was being trained for riding under trail-riding conditions. To that end, cavaletti were placed in the ring for the horse to practice stepping over. Her horse, however, backed up unexpectedly and tripped over the cavaletti, bucking and injuring the rider. She sued the equestrian center.

Rider’s expert issued an opinion that the placement of the cavaletti was negligent because a horse backing up could not see them. Nevertheless, the trial court granted summary judgment based on the New Jersey Equine Ac-tivities Liability Act. The court of appeals reversed, holding that two of the acts exceptions may apply: (1) the exception for “faulty equipment”, and (2) the exception for “an act or omission that constitutes negligent disregard for the participant’s safety.” The appeals court also held that the waiver was not enforceable because it would “upset the Legislature’s balance of risks and costs…contrary to the policy expressed by the Legislature.”

On discretionary review, the New Jersey Supreme Court reversed, holding that the Equine Activities Liability Act barred the claim. (It did not opine on the release.) It held that the exception for “faulty equipment” should not be read broad enough to include the negligent use or placement of properly-working equipment. With regard to the “negligence” exception, the court perceptively noted that when read broadly (actually, literally), the exception eviscerated the entire purpose of the Act. Therefore, given the ambiguity, the court looked to the purpose of the Act. After extensively reviewing the history of the Act and divining the purpose for which it was intended, the court, without giving clear guidance as to what the exception means, held that it “is clear” that the Act bars the claim in this case.

McCrann v. RIU Hotels SA, 2010 WL 5094396 (S.D.N.Y. 2010)

Vacationer was injured during a horseback ride at a resort in Aruba, and she sued the resort in New York. The court held that it had no jurisdiction over the defendant.

McNichol v. South Florida Trotting Center, 44 So. 3d 253 (Fla. Dist. Ct. App. 2010)

Trainer of harness horse was injured at track when his horse bolted and ran him into a dirt pile that had been left near the track. At the conclusion of the evidence, the trial court granted a directed verdict to the track under the Florida Equine Immunity Statute because such action was an inherent risk. On appeal, the court reversed because the jury should have been allowed to consider whether the placement of the mound was an inherent risk of equine activity.

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Morrissey v. Arlington Park Racecourse, LLC, 935 N.E.2d 644 (Ill. App. Ct. 2010)

Exercise rider was injured when his horse fell allegedly due to soapy water left standing in the training track entrance. His suit against the track was dismissed on summary judgment based on the “open and obvious”. The court of appeals reversed based on there being an issue of fact as to whether the “deliberate encounter” exception applied.

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933 (Ind. 2010)

Child was injured as a participant in a horse competition held in a barn, when kicked in the leg by a horse. The child sued alleging that the organizers were negligent in holding the competition in a barn that was too small and required the horses to be too close together, exacerbating the chance that one might kick. The trial court granted summary judgment to the organizers on the basis of the Indiana Equine Activity Statute.

The appeals court affirmed. It held that even though the Act did not mention that it provided immunity for negligence, the Act should be construed to mean that immunity exists were negligence increases the risk of an inherent risk of equine activity. That is, a claim of negligence that exacerbates the chance of an inherent risk could not survive the immunity provide by the statute.

Polechek v. Schina, 2010 WL 5419072 (N.J. Super. Ct. App. Div. 2010)

Exercise rider was injured when trying to stop an escaped horse, and she sued the owner of the track for negligence in maintaining the outside rail, which allowed the horse to escape. The trial court granted summary judgment to the track based on the general release signed by the rider a year earlier. The court of appeals affirmed, holding the language releasing the track “from any liability whatsoever” was broad enough to include negligence.

Severino v. Freedom Woods, Inc., 2010 WL 4290503 (Ill. App. Ct. 2010)

Rider injured while riding at equestrian center. His first complaint was vol-untarily dismissed, but later re-filed. The trial court dismissed the re-filed complaint as barred by res judicata. The court of appeals reversed, as the dismissal was “without prejudice.”

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Smith v. Phillips, 2010 WL 1221436 (Tenn. Ct. App. 2010)

The participants in an informal trail ride were friends. During the ride, one of the participants was bitten by a horse. He sued the owner. The trial court granted summary judgment based on the Tennessee Equine Activities Act. The court of appeals reversed, holding that the owner was not an “equine activity sponsor”, the term used in the Act for the immunized party. The court held that the intent of the use of the term in the Act was “to cover those entities or individuals engaged in regular events or programs, generally open to the public or to members, that promote equine activities, which is the purpose of providing immunity.”

Swanstrom v. Seadler, 2010 WL 4294684 (Ky. Ct. App. 2010)

Veterinarian was injured when horse he sedated fell into the stall door, which collapsed. He sued, but the trial court granted summary judgment based on the Kentucky Farm Animal Activities Act. The court of appeals reversed, stating that the exceptions in the Act for “dangerous latent condition” and “negligence” may apply.

Williams v. Chamounix Equestrian Center, 2010 WL 4358347 (Pa. Comm. Pl. 2010)

11-year-old was injured while helping load a horse into a trailer at a facility’s horsemanship program for children. He sued for negligence, and a substantial verdict was rendered against the facility, with the child being apportioned 10% liability due to using a stick to prod the horse. The facility asked for a new trial on the basis that the mere 10% contributory negligence was not supported by the evidence. The court disagreed, stating that the jury’s decision did not shock the conscience. The court also rejected the argument that the plaintiff’s expert was unqualified to testify that a minor should not load a racehorse into a trailer.

Wilson v. Davis, 2010 WL 5478616 (W.D. Ky. 2010)

Horse farmer was injured at a farm while conducting a semen collection at a Kentucky farm where a Quarter Horse stallion he co-owned stood stud. The defendants moved for summary judgment, which was denied in a very brief opinion stating that fault was an issue of fact.

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Zuckerman v. Coastal Camps, Inc., 716 F. Supp. 2d 23 (D. Maine 2010)

Rider was injured during instruction when, she alleged, the saddle slipped. She sued the riding academy for negligence. The academy moved for summary judgment on the basis of Maine’s Equine Activities Act.

The trial court denied the motion for summary judgment. It first held that the expert for the plaintiff was not disqualified by the fact that her opinion was based on speculative evidence, because that issue goes to the weight of the opinion. It further held that the Equine Activities Act did not bar a claim for negligence unless the negligence caused a horse to act like a horse. Here, the alleged negligence related to tack, and thus the “faulty tack exception” may apply.

2009

Beggs v. Griffith, 913 N.E.2d 1230 (III. App. Ct. 2009)

Griffith was the owner of a residence and acreage listed for sale. As a favor, he allowed Rankin to temporarily board his horses on the farm. Rankin took care of the horses. Melody Beggs was viewing the farm as a prospective purchaser. The horses became spooked and ran into Melody, injuring her. She sued Grif-fith under the Illinois Animal Control Act, which imposes strict liability on an “owner” where an animal injures a person who did not provoke the animal and was present in a place the owner had a legal right to be. The jury rendered a verdict in favor of Melody.

The challenge on appeal was that Griffith was not an “owner”. The court decided that given “the overriding purpose of the Animal Control Act” the “control available to Griffith at the time of the accident”, that Griffith was an “owner” under the Act. The court also ruled that it could not be presumed just from the bolting of the horses that there was provocation.

Bylin v. Billings, 568 F.3d 1224 (10th Cir. 2009)

Plaintiff was injured when bucked from a horse during a back-country hunting expedition. The suit was dismissed based on the statute of limitations. The court of appeals affirmed, holding that the two-year statute of limitations applied, and barred the suit.

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Hanson v. Northern J&B Enterprises, 2009 WL 234104 (Minn. Ct. App. 2009)

Injured plaintiff’s first lawsuit for negligence was dismissed as a result of a release. Plaintiff sued again for breach of warranty. But the jury found no warranty was breached. On appeal, the court held that summary judgment should have been granted defendants on grounds of res judicata.

Levinson v. Owens, 98 Cal. Rptr. 3d 779 (Cal. Ct. App. 2009)

During a barbeque held at a cattle ranch to celebrate a legal victory, lawyer asked to ride host’s horse. The horse galloped, she fell off, was injured, and sued her hosts. The trial court granted summary judgment to the hosts on the basis of primary assumption of risk.

On appeal, the lawyer argued that there was a triable issue of fact on her claim that she was provided an inappropriate horse. The court rejected this argument because the host was not a commercial trail-riding organization, so the lawyer should not have expected a plodding horse. In fact, that the horse was the type not used for trail riding, but for working cattle, is precisely the type of horse a rider would expect to find at a cattle ranch. Moreover, as a non-commercial operation, the host had no duty to ascertain the lawyer’s skill.

Pinot v. Revere-Saugus Riding Academy, Inc., 907 N.E.2d 259 (Mass. App. Ct. 2009)

Inexperienced rider was injured when test-riding a horse at the riding academy. The injury occurred when the rider threw herself off the horse when the horse, a retired Thoroughbred race horse, broke into a gallop and the saddle began to slip. The rider sued, but the trial court granted summary judgment based on the equine immunity statute.

On appeal, the rider argued that two exceptions applied: faulty equipment and failure to provide an appropriate horse. The court rejected the first contention, stating that there is no presumption that a slipped saddle means that there was faulty tack. The court reversed on the second basis, however, holding that be-cause the owners had seen the horse “prancing” and “tossing his head” before he was mounted gave rise to an issue of fact for the jury.

Tavakoly v. Fiddlers Green Ranch, 998 So.2d 1183 (Fla. Dist. Ct. App. Div. 2009)

Rider sued ranch for injuries resulting from fall from a horse. The jury awarded past medical expenses, but awarded nothing for future pain and suffering or

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for loss of consortium. The court of appeals upheld the denial of future pain and suffering, as the evidence was conflicting as to whether the injuries were permanent. The court reversed as to loss of consortium, holding that as a matter of law, a zero verdict is inadequate.

2008

Bailly v. Thompson, 2008 WL 2229022 (D. Minn. 2008)

Thomson purchased a skittish horse at auction, and while the horse was quarantined in her barn, it escaped. Neighbors tried to catch the horse in the middle of the night because they were afraid the horse was diseased and would come into contact with their own horses. One of the neighbors was seriously injured in this quest, when the horse knocked him over. The neighbor sued for negligence. The court granted summary judgment to the horse owner, noting that although the owner as a landowner had a duty to entrants to exercise reasonable care, an exception existed where the harm is a result of an activity or condition that is obviously dangerous. Trying to catch an escaped horse in the middle of the night was obviously dangerous.

Corzo v. Louisiana, 2008 WL 4600759 (W.D. La. 2008)

Inmate assigned to clean stable was injured while riding a horse, and sued the stable. Stable’s motion for summary judgment was denied as there was a dispute about whether the sign required by the Louisiana immunity statute had been posted.

Deutsch v. Traditional Equitation School, 2008 WL 4683877 (Cal. Ct. App. 2008)

Student at equestrian school was injured when the horse she was provided threw her. She sued for negligence but the trial court granted summary judgment to the school based on primary assumption of risk. The student appealed. The student argued that an exception existed where an unsuitable horse is provided. The claim was supported with the testimony of an equestrian expert. However, the court stated that the expert’s opinion of the unsuitability of the horse is not sufficient to create a triable issue if the opinion is based on the behavior of the horse at the time of the accident.

The student also argued that the instructor was insufficiently trained, again supporting her assertion with the report of an expert, who stated that the instructors were not certified or properly screened. The court also held that this did not create a triable issue of fact because it must be shown that the

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instructor acted intentionally or recklessly in the interaction with the student. The summary judgment was thus upheld on appeal.

Jewell v. Backes, 2008 WL 4133865 (Minn. Ct. App. 2008)

Jewell was a visitor to Backes’ farm. When Jewell was standing outside the stall of a horse named GOOD BOY, GOOD BOY reached his head out of the stall and bit off part of Jewell’s ear. Jewell sued the owner of the farm. The trial court granted summary judgment.

The court of appeals upheld the summary judgment because the action of GOOD BOY was not foreseeable. Although, according to the trainer, GOOD BOY had previously engaged in playful biting, there was no evidence that GOOD BOY posed a threat of harm.

Johnson v. Johnson, 898 N.E.2d 145 (III. App. Ct. 2008)

Seven-year-old child was kicked and injured by a horse at a farm, and sued the owner of the horse and the farm under the Illinois Animal Control Act. The Act provides:

If a dog or other animal, without provocation, attacks, attempts to attack, or injures a person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.

At trial, the jury was permitted to consider the defense of comparative fault, and its verdict was lower as a result of that defense.

On appeal, the court of appeals reversed and remanded for a new trial. It held that although the prior common-law defense of contributory negligence would have been a defense under the Act, comparative negligence was not a defense because it “is not a common-law defense.” Moreover, the doctrine does not have the same meaning as “provocation” as that term is sued in the Act.

The court of appeals also considered whether defendant’s expert’s testimony that “provocation” must have occurred was proper. It first held that the objection was waived, but also held that the testimony was not improperly speculative even though the expert did not utilize the statutory definition of provocation. (The expert stated that “any stimulus that elicits an instinctive response on the part of a horse” was “provocation.”)

On appeal, plaintiff also argued that it should have been granted a directed verdict because there was liability as a matter of law. The court held, though, that evidence existed that there was “provocation.”

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Peterson v. Eichhorn, 189 P.3d 615 (Mont. 2008)

Peterson was injured when she was bit by Eichhorn’s horse while on the prop-erty where the horse was boarded. She sued Eichhorn, alleging that Eichhorn was strictly liable under § 509 of the Restatement (second) of toRts, which provides for strict liability for injury caused by an animal known to have dan-gerous propensities. The trial court granted summary judgment to Eichhorn, holding that biting was a normal danger of a horse. On appeal, Peterson argued that the trial court ignored the evidence that the horse had an unusual tenden-cy to bite, as it had bit others on prior occasions. The appeals court rejected that argument, noting that a tendency of a horse to bite is not necessarily a “dangerous propensity.” Significant to the court was the fact that Peterson had experience with horses and knew they bit.

Reimund v. Guthrie, 2008 WL 442606 (Cal. Ct. App. 2008)

Reimund was injured by her own horse which she stabled on defendant’s property. She claimed the defendant was negligent in not repairing a tie rack stall. The trial court granted summary judgment based on the general release in the stall application signed by Reimund. On appeal, Reimund claimed that summary judgment was improper because the release did not expressly state that negligence liability was released. The court held that the language “waiving her right to bring any legal action…for any actions whatsoever…including personal injury” was broad enough to encompass negligence claims. It thus upheld the summary judgment.

Rutecki v. CSX Hotels, Inc., 290 F. App’x 537 (4th Cir. 2008)

Rutecki was injured on a private trail ride at the Greenbrier, when the guide’s horse unexpectedly took off, causing Rutecki’s horse to go out of control and throw her. She sued under the West Virginia Equestrian Activities Responsi-bility Act and for common-law gross and ordinary negligence. The trial court granted summary judgment to the Greenbrier.

The court of appeals affirmed. It held that although there may have been an issue of fact as to whether the Greenbrier complied with the requirement to determine the experience level of Rutecki, the injury was not causally related to that possible breach. Significant to the court was the fact that Rutecki was an experienced rider. The court also concurred that Rutecki produced no evi-dence sufficient to show gross negligence, and the ordinary negligence claim was supplanted by the West Virginia Equestrian Activities Responsibility Act.

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Rutkai v. Freeland, 2008 WL 5159030 (Ohio Ct. App. 2008)

Woman was injured when she was thrown from her uncle’s horse while riding the horse on her uncle’s farm. She sued for negligence, alleging that her uncle failed to provide the proper tack – a hackamore bridle rather than a bit bridle. She claimed that the horse had been trained with a hackamore bridle. The trial court denied her motion to have the horse inspected after the deadline for designating experts, and granted summary judgment to the uncle.

The appeals court affirmed. It held that denying the motion for inspection of the horse was not error because Rutkai had not designated an expert or moved to have the horse inspected prior to the deadline for designating experts. The court also affirmed the summary judgment on the basis that no genuine issue of material fact existed as Rutkai did not show that the horse had a propensity to injure when being ridden with a bit bridle.

2007

Brunell v. Kyle, 2007 WL 1121362 (Minn. Ct. App. 2007)

Plaintiff was kicked by a mare during a trail ride, and sued owner of horse and premises where boarded, alleging negligence in handling and failure to warn. Summary judgment for the defendants was affirmed on appeal on the basis that the sudden kicking was not foreseeable, and therefore no “duty of care” existed.

Burns v. Leap, 645 S.E.2d 751 (Ga. Ct. App. 2007)

Invitee on farm was injured when horse pushed him into a barbed wire fence. His suit against the owner of the premises and the horses was dismissed on summary judgment. It was upheld on the basis of the equine immunity statute which prohibited a claim where the horse was not known to have dangerous propensities.

Clyncke v. Waneka, 157 P.3d 1072 (Colo. 2007)

Plaintiff was injured from a fall during a horse roundup at defendant’s riding stable. The judge instructed the jury that the equine immunity statute did not apply if the defendant had not determined the skill level of the rider and had provided an inappropriate horse. After a verdict for defendant, plaintiff com-plained about the instruction and the Colorado Court of Appeals agreed that the statutory exception for immunity applied if the defendant had either failed to assess the skill level of the rider or had failed to provide an appropriate horse for that skill level. The court of appeals held that statutory immunities

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in derogation of the common law are to be narrowly construed, and that the literal reading of the statute led to an absurd construction. The Colorado Su-preme Court agreed, but held that even the literal reading justified reversal of the jury instruction.

Dalton v. Adirondack Saddle Tours, Inc., 40 A.D.3d 1169 (N.Y. App. Div. 2007)

Rider was injured when she fell off a horse that suddenly broke into a run. Order denying summary judgment was reversed on the basis of assumption of risk: “the risk that a horse might suddenly break into a run is one inherent in the activity of horseback riding.”

Davis v. 3 Bar F Rodeo, 2007 WL 3226295 (Ky. Ct. App. 2007)

Although this case involved a bull rather than a horse, it is instructive on the efficacy of a release.

Charles Davis attended a rodeo, and decided to participate in an audience-par-ticipation contest called the “ring of fear” where the participants stand in circles in the ring and a bull is let loose in the ring. The last participant to remain in his circle wins. The bull in this case charged Davis and killed him. His widow sued. Summary judgment was granted to the rodeo on the basis of the broad release signed by Davis. The court of appeals reversed, holding that the release was valid as to negligence claims, but did not release gross negligence claims. As there was an allegation that the bull was taunted before it entered the ring, there was an issue of fact as to whether that occurred, and constituted gross negligence.

Goettsch v. El Capitan Stadium Ass’n, 2007 WL 1705664 (Cal. Ct. App. 2007)

Rodeo spectator was watching the performance with his hands on the chain link fence. The spectator was injured when his hands became entangled in a rope to a horse tied to the fence. The spectator sued for negligence, but the trial court granted summary judgment.

On appeal, the court analyzed whether such an accident was inherent in the sport itself, which is relevant to primary assumption of risk. The court held that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” After analyzing several cases involving sports spectators, it turned to the facts at issue. It noted that tying a horse to a fence by this rodeo was prohibited, a prohibition not

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enforced. It held that the rodeo had a duty to not increase the risk of injury by allowing horses to be tied to the fence. Thus, because there was such a duty here, summary judgment was reversed. The court also rejected the argument that a horse tied to a chain link fence presents an obvious danger.

Hanson v. Bieloh, 2007 WL 1893315 (Minn. Ct. App. 2007)

Injured rider sued stable, but summary judgment was granted based on release signed by rider. On appeal, the court upheld the release as enforceable, and rejected the contention that the exception for gross negligence or willful and wanton conduct applied because no evidence of such conduct was presented.

Kirkland v. Hall, 38 A.D.3d 497 (N.Y. App. Div. 2007)

Rider was injured while mounting a horse due to the horse shifting, causing the rider to fall. The trial court granted summary judgment to the defendant based on assumption of the risk. The appeals court affirmed, noting: “The risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding.”

Little v. Needham, 236 S.W.2d 328 (Tex. App. 2007)

Rider was injured when riding stable’s horse around an unfenced track. The horse veered off the track and ran into a tree. Rider sued the stable. The trial court granted summary judgment based on the Texas Equine Activity Statute. On appeal, the rider argued that the injury did not result from an equine activity but from a faulty track. The court of appeals responded that the unpredictable actions of the horse “fall squarely within the statutorily defined dangers or conditions that are an inherent risk of equine activity.” The rider also argued that the “faulty equipment” exception applied, because the gate to the track should have been closed. The court of appeals rejected that argument because it was not raised below and no evidence was presented that the gate was faulty. The court also rejected the argument that there was a latent condition of the land, holding that there was “no evidence that the tree was concealed.” Finally, the court rejected the argument that there was an issue as to whether the stable acted with “willful and wanton disregard” of safety. It noted that the rider did not show that anyone had previously collided with or complained about the location of the tree.

Lopez v. Cole, 155 P.3d 1060 (Az. Ct. App. 2007)

Guardian ad litem for child injured by a horse sued child’s grandparents for negligence in allowing child to crawl through hole in their fence, which led to

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the child being kicked by neighbor’s horse. Summary judgment to the grand-parents was upheld on the basis that the guardian ad litem could not claim medical expenses because the child’s parents did not consent.

McGuire v. Jewett, 2007 WL 1810529 (Ohio Ct. App. 2007)

Plaintiffs were riders in a horse-drawn carriage. The horses began galloping and the carriage overturned while being driven on an approach road, causing injuries. The trial court dismissed the suit based on the Ohio Equine Immunity Statute. The appeals court held that the statute applied to passengers in a car-riage, because the statute’s definition of an “equine activity” included “pulling” and/or “riding.” The plaintiffs argued that a statutory exception for “defective equipment” applied because the carriage had no brakes. It pointed to a statute that requires brakes on “vehicles.” Because vehicles were defined as every device to be used as transport on a highway, there was at least an issue of fact whether the approach road was such a highway. The decision was thus reversed and remanded. McGuire v. Jewett, 2005 WL 1940368 (Ohio Ct. App. 2005).

On remand, after an evidentiary hearing, the trial court again granted summary judgment because the “road” the carriage was on was not a “highway” – the term used in the statute that required a carriage to have brakes. The court of appeals affirmed, holding that the “road” at issue “was neither public nor a thoroughfare.” Instead, it was a private road, and did not provide passage to another street or highway. The dissent pointed out that the “faulty equipment” exception to the equine immunity statute may apply, and a wagon without brakes, used to pull children, may be “faulty equipment.”

Micklalich v. U.S., 2007 WL 1041202 (E.D. Mich. 2007)

Coast Guard helicopter allegedly flew low over stable, causing horse to bolt, throwing rider to the ground. Rider sued under the Federal Tort Claims Act. In a bench trial, the court examined the conflicting evidence, and determined that the helicopter pilot had not breached a regulation or duty in flying over the stable. The court further held that bolting was an “inherent risk” of riding as defined in the Michigan Equine Liability Act.

2006

Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006)

Rider who had been taking riding lessons from equestrian center was injured when mounting her own horse. She sued the equestrian center for negligence in training the horse. The trial court granted summary judgment to the eques-

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trian center on the basis of the Indiana Equine Activity Statute and the waiver signed by the rider. The court of appeals upheld the summary judgment based on the waiver. The waiver purported to release the center “from all tort and civil liability arising from or relating to participation in equine activity.” The waiver was effective, the court ruled, despite not mentioning negligence spe-cifically. The court was influenced by the fact that the waiver stated that risks were inherent in riding.

Austin v. Bear Valley Springs Ass’n, 2006 WL 2499135 (Cal. Ct. App. 2006)

Janet Austin was a member of a homeowners’ association that provided some 50 miles of riding trails for its members. While riding on one occasion, dogs on adjacent property barked and spooked Janet’s horse, causing injury. She sued the association, claiming negligent maintenance of the trails. Apparently, the dog owners also belonged to the association, and there was an association rule requiring pets to be kept under control. The trial court granted the summary judgment to the association. The appeals court reversed, holding that there was a triable issue as to whether the association breached its duty to prevent dogs from barking and spooking horses.

Carmouche v. W.G. Yates and Sons Constr., 2006 WL 1635703 (W.D. La. 2006)

Jockey was injured at the starting gate when his horse bucked. The jockey claimed it was a result of an air brake from a dump truck doing construction at the track. He sued the track and the contractor, but the court granted summary judgment because the contractor showed evidence that no dump truck was present at the time, and the jockey could not rebut that presumption.

Colonel v. Meyerson, 91 So. 2d 690 (Fla. Dist. Ct. App. 2006)

Meyerson fell off her horse when her neighbor, Colonel, flew his Cessna low to apparently scare her. She sued and received a verdict in her favor, but was awarded no damages. Colonel appealed the trial court’s decision to award Meyerson costs. The court of appeals upheld the award of costs to Meyerson as the “prevailing party.”

Columbus v. Moore, 2006 WL 2089210 (Mich. Ct. App. 2006)

Plaintiff was present at the Southern Michigan Paint & Quarter Horse Fall Sale, but was generally looking rather than actively buying. She was kicked by a horse that jumped while being led to the sales ring. Her claim was dismissed

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based on Michigan’s Equine Liability Statute. She argued on appeal that she was not a “participant” but a “spectator,” which is not covered by the statute. The court disagreed, holding that she was a participant at the sale, even though she was not actively buying.

Courbat v. Dahana Ranch Inc., 141 P.3d 427 (Haw. 2006)

Horseback rider was injured during horseback tour as a result of her horse being surprised by another horse approaching from behind. The ride was booked and paid for in advance, but when the rider arrived for the ride, she was required to sign a release. She sued the ranch for her injuries, but summary judgment was granted to the ranch based on the release. She claimed that the release was void as a “deceptive trade practice” under the Consumer Protection Act of Hawaii because the trip was booked without being informed of the release require-ment. The court of appeals agreed that there was a material issue of fact as to this, with the jury entitled to determine whether a waiver would be materially important in booking a horseback tour. If so, the court ruled, the release was void and the rider could proceed with her negligence claim. Regardless, the release had no effect on the claims for gross negligence or willful misconduct.

Deak v. Back Farms, LLC, 34 A.D.3d 1212 (N.Y. App. Div. 2006)

Employee was injured when thrown from a horse he was exercising for his employer. Summary judgment by the employer was granted in part and denied in part. The court upheld the denial of summary judgment, stating that the assumption of the risk doctrine was not a defense as a matter of law because the employee had limited riding experience and the employer failed to advise him of the dangerous tendencies of the horse.

Fintzi v. Riverdale Riding Corp., 32 A.D.3d 701 (N.Y. App. Div. 2006)

Injured riding student’s case was dismissed on summary judgment when all testimony showed that the horse had no unpredictable propensities and no other evidence of negligence was presented. The court of appeals upheld the summary judgment.

Gardner v. Simon, 455 F. Supp. 2d 786 (W.D. Mich. 2006)

Rider, who had considerable experience, was injured when horse named NICK reared up, caught a front hoof in a tree, and fell backwards. Rider sued owner of the horse.

The owner moved for summary judgment. The court held that the Michigan Equine Activity Liability Act applied although the owner was not an equine

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activity sponsor. The court also concluded that the injury was a result of an inherent risk contemplated by the statue, but because the statute excluded from its protection claims for negligence, rider’s claim could go forward on that basis. Rider had shown sufficient evidence of negligence in that she asserted that on a prior occasion the rider had difficulty with NICK, but the owner told her to “quit being a baby” and get back on him.

Joseph v. New York Racing Ass’n, 28 A.D.3d 105 (N.Y. App. Div. 2006)

Joseph, an experienced exercise rider, was asked to exercise a horse by taking him four times around a track. However, the track was very wet from an earlier rainstorm. After the first lap, Joseph determined that the puddles on the track made it dangerous, so he elected to complete only one additional lap. During that lap, the horse slipped, throwing Joseph, resulting in injuries. He sued NYRA for negligence. The appellate division reversed the denial of NYRA’s motion for summary judgment because of the doctrine of primary assumption of risk, noting that “it is difficult to imagine a more compelling set of facts for the application of the doctrine of primary assumption of risk.”

Lavenda v. Rodowick, 2006 WL 2474004 (Cal. Ct. App. 2006)

Girl was injured while riding neighbor’s horse. She apparently fell when the horse was called by the owner. The court granted summary judgment to the owner on the basis of assumption of the risk. The determination was upheld by the court of appeals. To hold otherwise, the court held, would chill vigorous participation in the sport of horseback riding.

Reardon v. Windswept Farm, LLC, 905 A.2d 1156 (Conn. 2006)

Jessica Reardon, an experienced rider, was injured during a riding lesson as a result of her horse bucking. She sued the stable for negligence. The stable was granted summary judgment based on the release she signed prior to riding. The Supreme Court of Connecticut reversed, holding that releases of prospective negligence violate public policy. It reasoned: “[I]t is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.” The court also held that the release “was a classic contract of adhesion” because “signing the release provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson...”

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Personal Injury

Stoffels v. Harmony Hill Farm, 912 A.2d 184 (N.J. Super. Ct. App. Div. 2006)

Experienced rider was injured when horse she was provided unexpectedly reared. The horse was relatively “green,” having been recently acquired by the owner and only recently broken. The rider sued the owner. The trial court granted summary judgment on the basis of New Jersey’s Equine Liability Act. The court of appeals reversed, holding that sufficient evidence existed to go to the jury on the issue of whether a suitable horse was provided to the rider, citing the rider’s expert opinion that “Matching a horse with barely 30 rides to a rider, regardless of the amount of experience, whose capabilities one does not know well would horrify any responsible trainer or instructor.”

Teles v. Big Rock Stables LP, 419 F. Supp. 2d 1003 (E.D. Tenn. 2006)

Rider was injured when at the end of a ride she fell from the horse provided to her by the stable. She sued the stable, contending that the stirrups she was provided were too long. Indeed, the souvenir photo taken showed the stirrups were too long.

The stable moved for summary judgment based on the Tennessee Equine Im-munity Statute and the fact that the rider had, signed a release before the ride, releasing the stable from liability for ordinary negligence. The court denied the motion. It first ruled that the rider’s claim may fall within an exception to the Tennessee Equine Immunity Statute for “willful or wanton disregard of the safety of the participant” and may fall within the exception for providing tack that was known or should be known to be faulty. It held that the release may be inapplicable because the release did not (nor could it under Tennessee law) release liability for gross negligence. The court also held that the release would not be applicable to liability for “injuries resulting from faulty tack or equipment.”

Thompson v. Sprouse, 2006 WL 1232999 (Cal. Ct. App. 2006)

Thompson rode an Arabian horse owned by an acquaintance, but lost control and was thrown to the ground, resulting in severe head injuries. She sued, but the trial court awarded summary judgment to the horse owner.

The court of appeals upheld the award of summary judgment based on the defense of assumption of the risk. Despite an apparent dispute about the ex-perience of Thompson and the appropriateness of the horse, the court noted imposing liability on [the horse owner] under these circumstances would incur precisely that chilling effect against which the assumption of risk doctrine is designed to protect. No one would ever allow an importuning young friend to ride a horse if liability was imposed.

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Thompson complained that there was an issue of fact, pointing to the testimony of her expert who opined that the horse was unsuitable for such riding. The court of appeals determined that the expert opinion was incompetent, noting:

[The expert’s] declaration was incompetent in many respects. As to his portrayal of Arabian horses as “hot blooded” and “high strung,” [the expert’s] declaration amounted to nothing more than a general-ized breed description. Unless he was opining that no horse of this thousand-year-old bred should ever have been ridden by an inexpe-rienced equestrian, this “opinion” was valueless in determining [the horse owner’s] duty toward plaintiff.

Tilson v. Russo, 30 A.D.3d 856 (N.Y. App. Div. 2006)

Plaintiff, an experienced rider, was assigned a horse for riding practice. She approached the horse with tack, and the horse bit her on the shoulder. She sued the owner of the horse. Summary judgment was granted to the defendant on the basis of primary assumption of the risk, because defendant’s expert established that biting is a common and well-known risk of horseback riding.

Toben v. Jeske, 718 N.W.2d 32 (S.D. 2006)

Toben worked as a farm hand for the Jeskes. He occasionally rode their horses, without pay, so that he could gain experience. The Jeskes would provide some instruction to Toben. Toben rode a recently broke horse called BLAZE several times, but one time the horse bucked him, resulting in injury. Toben sued the Jeskes, but the trial court granted summary judgment on the basis of the Equine Liability Statute. On appeal, Toben argued that the following exception to the statute applied: where the defendant “provides the animal and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability.” The court of appeals agreed that there was a material issue of fact as to whether he was provided an appropriate horse, holding that there was some evidence that the Jeskes knew of his inexperience. Important to the court was the fact that they had occasionally provided Toben with safety riding information, Toben was specifically interested in learning to break horses, and undertook to ride BLAZE for that purpose. The court did not address whether this created an assumption of the risk defense.

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Personal Injury

2005

Carter v. Rowe, 710 N.W.2d 545 (Iowa Ct. App. 2005)

Plaintiff was injured riding her father’s horse, then sued her father. Faced with the requirement in the Iowa Equine Immunity Statute that she prove reckless rather than negligent conduct, the plaintiff challenged the constitutionality of the statute under the Iowa Constitution. The court of appeals upheld the constitutionality of the statute.

Chavez Construction Inc. v. McNeely, 177 S.W.3d 593 (Tex. App. 2005)

Chavez Construction was hired by McNeeley to power-wash fences. Chavez would do this by attaching his hose to the spigots for the watering troughs. On one occasion, he left the hose intact and inside the trough. When riding one of his horses on the ranch, McNeely noticed that the water level in the trough was low, and when he turned on the spigot, the loose end of the hose came out of the trough and struck or sprayed the horse, causing it to buck McNeeley off. McNeeley was injured, and sued Chavez for negligence. The jury found for McNeeley.

The issue on appeal was whether Chavez owed a duty that was violated. Chavez largely attacked the foreseeability of the accident, and the insufficiency of proximate cause. The appeals court held that the general danger created by the negligence was foreseeable, regardless whether the specific accident and injury were foreseeable, and thus the element of foreseeability was met. The court also held that the causation chain was not so attenuated that proximate cause did not exist.

Darling v. Remington, 697 N.W.2d 127 (Iowa Ct. App. 2005)

Lori Darling was invited on a pleasure ride by the farm owner’s son, who regularly worked on the farm. Darling’s horse reared and died as a result of a massive hemorrhage, and the incident killed Darling as well. Darling’s estate sued the owner on the basis of vicarious liability, but the court granted summary judgment. The decision was upheld on appeal, because there was no evidence that Scott was acting within the scope of his employment in suggesting the pleasure ride.

Duvall v. Howe, 2005 WL 2540206 (Mass. Super. Ct. 2005)

Plaintiff was riding a horse at the defendant’s boarding farm, when a more aggressive horse began an altercation with the horse the plaintiff was riding.

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Plaintiff had to jump for safety, resulting in a fracture. The trial court dismissed her suit as one barred under the Massachusetts Equine Liability Statute, because the unpredictable nature of a horse is an inherent risk of an equine activity.

Eslin v. County of Suffolk, 795 18 A.D.3d 698 (N.Y. App. Div. 2005)

Plaintiff was injured from a fall from a horse while horseback riding at a ranch. The appeals court reversed a denial of summary judgment, holding that being thrown was an inherent risk of horseback riding, and no evidence was presented to raise a triable issue.

Gamble v. Peyton, 182 S.W.2d 1 (Tex. App. 2005)

Rider was injured when horse she had just purchased bucked on the seller’s property as a result of being stung by fire ants. Rider sued the landowner. The trial court granted summary judgment on the basis of Texas’ Immunity Statute, which provides that a person cannot be held liable if the injury results from dangers or conditions that are an inherent risk of equine activity. The court of appeals affirmed, holding that the ants were not a dangerous latent condition of the land, but uninvited wild animals. Moreover, the landowner had mentioned to the rider that she had a problem with fire ants on the property.

Hawkins v. Ranch Rudolph, Inc., 2005 WL 2372008 (Mich. Ct. App. 2005)

Plaintiff was an inexperienced rider, and during a slow ride the trail guide asked if the riding group wanted to go “a bit faster.” They responded yes, but during the faster ride the plaintiff hit a tree resulting in a fracture. There was considerable disagreement over whether the horses were trotting or running. The trial court granted summary judgment based on the equine liability statute and the signed release, both of which barred claims for ordinary negligence. The court of appeals reversed, holding that reasonable minds could differ as to whether leading a ride at a fast pace for a beginning rider constituted gross negligence, which was not barred under the statute of the release.

Kinley v. Bierly, 876 A.2d 419 (Pa. Super. Ct. 2005)

Plaintiff sued boarding farm for injuries resulting from a bite from a stallion. Plaintiff’s theory was that stallions, being known to have vicious propensities, were dangerous per se, thus the usual requirement that an animal must be known to be dangerous as a condition for liability, was met. The trial court rejected this position and granted summary judgment. The decision was affirmed on appeal.

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Personal Injury

Konan v. Sterling Suffolk Race Course, LLC, 824 N.E.2d 487 (Mass. App. Ct. 2005)

Trainer, who was injured while riding a horse at Suffolk Downs, sued the track for damages. The track moved for summary judgment on the basis of the equine immunity statute. The trainer argued that the track’s actions fell into the immunity exception where the defendant knows of the horse’s dan-gerous propensities. He submitted an affidavit from an investigator showing that several horseman know of the horse’s dangerous propensities. The court refused to consider the affidavit because it was hearsay, and nevertheless did not reveal that track personnel knew of the dangerous propensities. Summary judgment was granted.

Mazella v. Fairfield Equine Assocs., P.C., 2005 WL 2452908 (S.D.N.Y. 2005)

Veterinarian was called to treat a horse named MELVIN after the owner ob-served that the horse was moody and stumbling. The veterinarian made no diagnosis but recommended the use of a magnetic blanket. When MELVIN’s condition deteriorated, the veterinarian was called back to examine MELVIN. This time, the veterinarian drew a blood sample for Lyme disease, but advised the owner that MELVIN could be ridden. However, when the owner mounted the horse the next day, MELVIN collapsed and severely injured the owner.

The owner sued the veterinarian for malpractice, claiming he should have tested for EPM. The veterinarian moved to dismiss on the basis that there was no negligence, no duty to warn the owner, an experienced horsewoman, and that the collapse was an inherent risk of riding thus qualifying for immunity under the Connecticut Equine Immunity Statute. The court held that there was a triable issue of fact as to negligence, and that the superior knowledge of the veterinarian created a duty despite the experience of the owner. The court further held that the risk the owner assumed was the risk of an injury from a healthy horse.

McDermott v. Carrie, LLC, 124 P.3d 168 (Mont. 2005)

Rider at a dude ranch injured her hand when horse suddenly pulled away. Rider had executed a release from liability. Rider sued dude ranch for negligence.

Under Montana law, a prospective release is unenforceable. However, the trial court admitted the release into evidence (with the release language redacted) to show knowledge of the risk by the rider. A verdict was rendered for the dude ranch.

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On appeal, the court upheld the introduction of the redacted release because it was relevant to the knowledge of the risk and the rider’s assumption of that risk.

Miller v. Weitzen, 35 Cal. Rptr. 3d 73 (Cal. Ct. App. 2005)

Rider was injured when her horse slipped on a driveway crossed by a public riding trail. The trial court held that the Recreational Use Immunity Statute applied. The court of appeals agreed.

Nelson v. Ladbroke Racing Corp., 2005 WL 995554 (Cal. Ct. App. 2005)

Exercise rider was injured when the horse he was riding drifted and went out of control, running into the “green shadow fence” surrounding the track out-side the inner and outer rails. The fence was constructed in accordance with the California regulations, although the regulations were silent as to the color.

The rider sued alleging that the green color made the fence difficult for the horse to see. The track moved for summary judgment, which was granted. The court of appeals affirmed the summary judgment, determining that the rider assumed the risk of the injury, given the inherent danger of horse racing. The rider argued that a white fence would have reduced the risk. The court rejected this argument because “the evidence that an inherent risk could be decreased by use of more protective equipment or alteration of an object that is integral to the sport facility does not meet the plaintiff’s burden to establish that defen-dants increased that inherent risk by failing to provide the equipment or make the alteration.” Of significance to the court was the fact that in the years that the fence existed, no complaints about the danger of the fence had been made.

The court also rejected the expert testimony offered by the rider. The experts stated that a horse has low visual acuity, and that the green color would have been especially hard for a horse to see, and that the horse would probably not have run into a fence that was white. The court stated that these conclusions failed to satisfy the requirement of establishing causation, because they failed to provide a reasoned explanation why the horse was prevented from seeing the fence on this occasion.

Rodriguez v. Gauger, 2005 WL 1123635 (Mich. Ct. App. 2005)

Plaintiff, defendant’s stable hand, was injured when a horse stepped on his foot. He claimed the horse was spooked by a dog. The court affirmed sum-mary judgment in favor of the defendant, holding that there was no duty to plaintiff to restrain a dog, because a dog barking or running around a farm is a normal occurrence.

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Personal Injury

Slabaugh v. Kukta, 2005 WL 3303986 (Ohio Ct. App. 2005)

Plaintiff was injured on the property where she was cleaning. She went into a barn holding two horses. She fell and broke her ankle. She believed one of the horses knocked her down. She sued the defendant land owner. Summary judgment for the defendant was affirmed. The court held that no special duty existed such as to give rise to negligence based on failure to act. Nor was there a duty to warn of the dangers of horses, as the plaintiff was aware of those dangers.

Smith v. Lane, 832 N.E.2d 947 (Ill. App. Ct. 2005)

Passenger in a horse-drawn carriage was injured when the carriage went off the road and overturned. The passenger sued driver and carriage owner for negligence and violation of the Animal Control Act. The trial court dismissed the action, holding that the Illinois Equine Activity Liability Act applied to immunize the defendants. The court of appeals reversed. The court held that the Equine Activity Liability Act did not apply to a passenger in a carriage, as the passenger was not engaged in “an equine activity” as defined in the Act. Furthermore, the court held that the complaint stated a claim under the Animal Control Act.

Swido v. Lafayette Ins. Co., 916 So. 2d 399 (La. Ct. App. 2005)

Prospective buyer of a horse named MARY MAE was injured when attempting to ride her. A dispute arose as to who owned MARY MAE at the time of the injury. MARY MAE had been subject to an agreement between the Guillards and Mr. Hairford, whereby Mr. Hairford paid $1,400 cash, which included $200 to the Guillards for training MARY MAE. The injury occurred before the training was completed and before the registration papers were executed and recorded. The court held that the sale had occurred prior to the injury, despite the obligation to train, and despite the fact that the registration papers were not executed and transferred until a later date. As to this latter point, the court noted that “Louisiana does not require registration of horses.”

The court further held that MARY MAE, who was only “green broke” did not constitute an unreasonable risk of harm such that strict liability would apply. Moreover, the non-owner was not liable for negligence, as the non-owner could not have anticipated the owner’s alleged misrepresentation of the “green-broke-only” status of the horse, and therefore had no duty to warn the plaintiff.

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2004

Bartowski v. Case, 2004 WL 944267 (Conn. Super. Ct. 2004)

Girl was injured when horse was spooked by dog on land adjacent to stable where she was taking riding lessons. She sued for personal injury, including under the theory of “public nuisance.” The court granted the motion to strike allegation because private riding lessons were not a “public right or entitle-ment,” inference of which is necessary for a public nuisance action

Burke v. Mckay, 679 N.W.2d 418 (Neb. 2004)

Eighteen-year-old high school student was injured in a rodeo competition when the horse he was riding bucked over backwards on him. There was evidence that the rodeo organizers had seen the horse do this before. However, the rider had observed it once before as well. Therefore, summary judgment was granted to the rodeo organizers on the basis of “assumption of risk.” The Supreme Court of Nebraska affirmed, holding that although bucking over backwards was not a normal risk of riding a rodeo horse, because the rider and his father had seen the horse do so before, he knew of the danger and assumed the risk.

Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo. 2004)

Chadwick was a participant in a horseback hunting trip. His horse became sick and he was switched to a mule. The saddle began slipping on the mule, and Chadwick was thrown when he attempted to dismount. He sued the outfitter company for negligence.

Chadwick, though, had signed a release prior to the trip. Summary judgment was granted the outfitter based on the release. The Colorado Supreme Court thoroughly reviewed the law of releases in Colorado, and concluded that the release here was not void for public policy reasons and was unambiguous (although overbroad in including a release for wanton conduct). The dissent argued that the release did not release the outfitter from liability for injury caused by switching to a mule.

DiPilato v. Biaseti, 6 A.D.3d 648 (N.Y. App. Div. 2004)

Rider was thrown from her horse when the horse was spooked by a horse in a paddock adjacent to trail. Summary judgment on the basis of assumption of risk was denied, which was upheld on appeal because there was evidence that the defendants unreasonably increased the risk of injury by placing a known aggressive horse in a paddock adjacent to the trail.

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Personal Injury

Frank v. Matthews, 136 S.W.3d 196 (Mo. Ct. App. 2004)

Riding student signed a broad release form releasing the stable from “any and all liability for any injuries sustained” while riding at the stable. The rider had been given a riding crop, and when she used it, the horse she was riding bolted and she fell, injuring her back. She sued for negligence.

The court of appeals reversed the summary judgment granted the stables. It first held that the release was ineffective because it was not clear that a release from “any and all liability” included liability for negligence. The court justified this dubious conclusion on the more dubious proposition that that because the top part of the release form recited the Missouri Equine Liability Act, the release only governed liability for inherent risks of riding.

The court also held that the Missouri Equine Liability Act did not ‘shield a claim for negligence’, as it only codified the law of assumption of risk, and had no effect on a negligence claim. Finally, the court concluded that giving a beginning rider a riding crop was sufficient evidence of negligence to over-come summary judgment.

Gulfstream Park Racing Ass’n v. Kessinger, 874 So. 2d 645 (Fla. 2004)

Injury to an exercise rider resulted in a suit and verdict against Gulfstream for negligence. Gulfstream’s insurer paid $500,000 in satisfaction of the judgment. Gulfstream then sued the trainer for indemnity based on the stall agreement. The court granted summary judgment because Gulfstream had implicitly waived its subrogation claim. The appeals court reversed, holding there was an issue of fact concerning such waiver.

In re Harmon, 2004 WL 2307011 (Ohio Ct. Cl. 2004)

Woman was injured when neighbor illegally set off fireworks, spooking her horse. She sought reparations as a victim of criminally injurious conduct. Her application was initially denied because there was no showing of intent to injure. But the court of claims reversed, noting that the neighbor was arrested for the activity, and the fact that fireworks were set off near the horse showed conduct that posed a substantial threat of personal harm.

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Kinara v. Jamaica Bay Riding Acad., 11 A.D.3d 588 (N.Y. App. Div. 2004)

Experienced rider, who had observed horse was wild, was injured after being thrown from the horse. The court upheld the trial court’s grant of summary judgment based on assumption of the risk.

McGraw v. R and R Investments Ltd., 877 So. 2d 886 (Fla. Dist. Ct. App. 2004)

Rider was injured after being thrown from a horse, and she sued the owner of the horse. The owner had not posted the warning sign required by the Florida Equine Immunity Statute. Summary judgment was granted to the owner. The court of appeals reversed, holding that despite the fact that no clear penalty existed in the statute for failure to post the required sign, the legislature intended that if the sign had not been posted, no immunity existed.

Rivera v. R.P. Gordon, Inc., 2004 WL 1109153 (Mich. Ct. App. 2004)

Plaintiff was injured when riding a horse rented from defendant stable. Her foot got caught in the stirrup and the stable attendant was unable to help due to a distraction. Before the ride, the plaintiff had signed a liability release waiving liability for ordinary negligence, but not gross negligence or wanton and willful conduct. Plaintiff’s suit, alleging wanted and willful conduct, was dismissed on summary judgment. The court of appeals held that summary judgment was proper because no reasonable trier of fact could conclude that the conduct was “willful or wanton,” defined as conduct showing an intent to harm, or conduct showing such indifference to whether harm will result as to be the equivalence of a willingness that it does. Although the plaintiff did not allege gross negligence, the court held that the alleged conduct was not, as a matter of law, gross negligence, defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Taylor v. Howren, 606 S.E.2d 74 (Ga. Ct. App. 2004)

Rider was injured when thrown from a horse provided by owner while rider was present at the farm to assist in treating an injured horse. The owner had supposedly represented that the horse was a “good, ridable horse.” The trial court granted summary judgment based on the equine immunity statute. The court of appeals reversed on the basis that no immunity existed where the owner “actively misrepresents” the domesticity of a steed.

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Personal Injury

2003

Aponte v. Castor, 802 N.E.2d 171 (Ohio Ct. App. 2003)

Seven-year-old child was attending Thanksgiving dinner at home of horse owners. After dinner, the child crawled under the fence where the horse was stabled and was injured when kicked by the horse. The child sued, but summary judgment was granted the horse owners. The appeals court affirmed, holding that the child was a trespasser, because she was not invited to the paddock, only for dinner at the house. The court also held that the horse was not an attractive nuisance. As to the claim that the owners had a heightened duty to child trespassers, the court of appeals held it was not foreseeable that the child would enter the paddock because the child had visited previously and roamed to the paddock and the paddock was enclosed by a fence. Further, the court held, the child had an appreciation of the danger posed by horses.

Barrit v. Lowe, 669 N.W.2d 189 (Wis. Ct. App. 2003)

Lowe ran a riding lesson academy in Wisconsin. Barritt purchased a horse from Lowe, and Lowe provided lessons. Eight weeks after the purchase, Barritt was injured during a lesson. She sued Lowe, who moved for summary judgment on the basis of the equine immunity statute. The court denied the motion on the basis that an exception existed where a person “provides an equine” but fails to determine the ability of the person. The denial was overturned on appeal, with the court accepting the position of Lowe that “provide an equine” does not include selling an equine. “These are two different concepts,” the court stated.

Beatty v. Alvarez, 2003 WL 21470302 (Cal. Ct. App. 2003)

Plaintiff was a guest of the defendants. Plaintiff was injured when a horse she was riding reared and fell backward onto her. The trial court granted summa-ry judgment for the defendants based on the doctrine of primary assumption of risk, which holds that a party is not liable for risk inherent in an activity. However, the court noted, a commercial stable operator nevertheless has a duty of due care to warn patrons if a horse has a dangerous predisposition. The court held that a non-commercial lender of a horse does not have any greater duty of care. Because the defendants demonstrated they had no knowledge of dangerous propensities of the horse, and that assertion was unrebutted, no triable issue of fact existed, and summary judgment was affirmed.

Berlangieri v. Running Elk Corp., 76 P.3d 1098 (N.M. 2003)

Plaintiff rider was injured when she fell from a horse allegedly as a result of faultily installed tack by the Lodge that provided the horse. Plaintiff’s per-

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sonal injury suit against ranch was dismissed on summary judgment based on a liability release signed by plaintiff. The Supreme Court of New Mexico, however, ruled that the liability release was unenforceable as against public policy. The court did not hold that all liability releases were unenforceable, but only those relating to activity covered by the Equine Liability Act because that act expressed the public policy that equine providers should be liable for negligence. In addition, the court held that other factors weighed in favor of invalidating the release in this case, such as the fact that the Lodge “is a busi-ness that is open to the public” and the release made the plaintiff “subject to the risk of carelessness” of the Lodge employees.

Conway v. Holman Ranch, 2003 WL 22138983 (Cal. Ct. App. 2003)

Conway hired a guide and horse at Holman Ranch. He signed a release, which covered negligence, before riding. Early in the ride, his horse quickly backed up and slipped and fell on top of him. He sued the ranch, arguing that the ranch had a duty not to increase the ordinary risks of horseback riding. The court dismissed the case, holding that the release signed created an express assumption of risk, including the risk of negligence. Conway challenged the release on the grounds that it did not cover this scenario. The court held that a release need not cover every scenario.

Doyle v. Monroe County Deputy Sheriff’s Ass’n, 758 N.Y.S.2d 791 (N.Y. App. Div. 2003)

At a picnic for the sheriff’s association, one of the participants brought animals, including ponies, from a local petting zoo. Children assisted in unloading the animals. The horses were not known to have dangerous propensities, and, in fact, were used to being around children. One of the boys assisting in un-loading was kicked by a pony, injuring the boy. The boy’s family sued, and offered an expert that opined that the failure to have an experienced handler was negligence. The trial court determined that the case could proceed to trial on a negligence theory because the presence of children created an “enhanced duty.” The court of appeals rejected the notion that the plaintiff was required to show that the horses had a previously-known dangerous propensity.

Ferguson v. Ulmer, 2003 WL 22512042 (Cal. Ct. App. 2003)

Krista Ferguson was an aspiring Arabian rider. Her parents had hired Donald Ulmer as a trainer for her in 1991. He supposedly told her that in western riding competitions she would have her score marked down if she wore protective headgear rather than a western hat, advice which she followed. Krista’s par-ents fired Ulmer, however, in 1994, and hired replacement trainers. In 1995,

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Personal Injury

while riding in a competition, Krista’s horse tumbled and she was thrown, severely injuring her head. She sued Ulmer, who was granted summary judg-ment. Summary judgment was sustained on two bases. First, Ulmer’s advice was accurate, as the prevailing attire for such riding was a western hat, not a helmet. Second, he had no duty to Krista, as he had been discharged a year prior to the accident.

Goodman v. Hartington, 862 So. 2d 890 (Fla. Dist. Ct. App. 2003)

Exercise rider was employed by incorporated farm. While exercising a horse, the horse was spooked by a dog owned by the owners of the corporation, and the exercise rider was thrown and severely injured. The exercise rider sued the owners, but the owners asserted workers’ compensation immunity. Summary judgment was granted to the owners, but the Florida Court of Appeals reversed, holding that a material issue of fact existed as to whether the ownership of the dog was within the course of employment.

Konan v. George, 2003 WL 22479619 (Mass. Super. Ct. 2003)

Konan, a self-employed Thoroughbred horse trainer, was riding a horse named ADRIATIC KING at Suffolk Downs for the purpose of evaluating him for potential purchase. Suffolk Downs had the appropriate warning sign consistent with Massachusetts’ Equine Immunity Statute.

Konan rode ADRIATIC KING in a direction opposite the usual track direction. At one point, ADRIATIC KING threw Konan, causing a fall and injuring his knee.

Konan sued the owner of the horse, who moved for summary judgment based on Massachusetts’ Equine Immunity Statute. However, the statute contained exceptions in the event an equine professional provides a horse without making reasonable and prudent efforts to determine the ability of the participant to engage safely in equine activity, or if the equine professional commits an act of omission that constitutes willful or wanton disregard for the safety of the participant. The court denied the motion for summary judgment on the basis that there were issues of fact as to whether the owner made reasonable and prudent efforts to determine the plaintiff’s ability to save ADRIATIC KING, given the horse’s alleged erratic tendencies. The court also held that there was an issue of fact as to whether the omission constituted willful or wanton disregard of Konan’s safety.

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Kush v. Wentworth, 790 N.E.2d 912 (Ill. App. Ct. 2003)

Plaintiff was injured when the defendant’s horse kicked the plaintiff during a group horse ride. The trial court granted summary judgment based on the equine immunity statute. The court of appeals had to decide whether the Act applied to non-equine professionals. The statutory language was, at best, unclear and contradictory. But because statutes in derogation of the common law are to be strictly construed, the ambiguity in the statue was construed in favor of the plaintiff. Summary judgment was reversed.

Lindsay v. Cave Creek Outfitter, LLC, 77 P.3d 47 (Ariz. Ct. App. 2003)

Linda Lindsay hired the stable for a horse ride in the Arizona desert. Prior to being provided with the horse she was given a release form, which she did not read, but signed nevertheless. During the ride, her horse bucked when it brushed against a chola cactus. Lindsay was thrown and injured.

The stable was granted summary judgment based on the signed release because the release contained disclosures required by the Arizona Equine Immunity Statute. Lindsay argued on appeal that the bucking was not due to an injury inherent in horse back riding because the ride was led through a cactus area. The court of appeals, in affirming the summary judgment, held that the release was effective against a claim of such negligence. Lindsay also argued that the equine immunity statute violated Arizona’s Equal Protection Clause because it created a gross negligence burden of proof for a particular subclass of tort victims. The court rejected this argument because the statute served a legitimate state interest to resolve the prior situation where equine owners and agents were being deterred from continuing in the industry due to high litigation costs and insurance premiums.

Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. 2003)

Minor child was injured during a horseback riding lesson when her horse tripped over a hose. Defendants’ motion for summary judgment was granted based on a release signed by the child’s parent, which release purported to release defendants from liability for negligence. The court rejected the argument that a release was ineffective as to a child, noting that a parent can effectively execute a release for a child.

Steeg v. Baskin Family Camp, 124 S.W.3d 633 (Tex. App. 2003)

Patron of riding stable was injured during a ride, when the horse trotted and he fell off, possibly from a loosely-secured saddle. He sued, but the trial court granted summary judgment based on the equine immunity statute. The Texas

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Court of Appeals reversed, however, because negligence was not an “inherent risk” of an equine activity.

Valente v. D.W. Burnhouse Const., Inc., 2003 WL 1310066 (Cal. Ct. App. 2003)

An exercise rider at Hollywood Park was injured when thrown from a horse that was disturbed by the movement of a backhoe, which was near the track for a construction project. He sued the construction company. The trial court granted summary judgment on the basis that the construction company had no duty to the plaintiff. The court of appeals affirmed the summary judgment.

Young v. Tirrell, 767 N.Y.S.2d 121 (N.Y. App. Div. 2003)

Wrongful death action was brought against landlord for injuries caused by tenant’s horse. Summary judgment for the landlord was upheld on the basis that an out-of-possession landlord can only be liable if the landlord knew of the horse’s vicious propensities and had the ability to control the premises.

2002

Dickens v. Stephenson, 572 S.E.2d 442 (N.C. Ct. App. 2002)

Plaintiff was injured while riding a horse she was considering purchasing. The horse was owned by a third-party who bought the horse from the defendant, but housed at the defendant’s stable. The defendant did little to care for the horse. Plaintiff claimed that the horse had a known vicious propensity. However, the defendant was granted summary on the basis that he was not a “keeper” of the horse. Summary judgment was affirmed on appeal.

Emery v. Wildwood Mgmt., Inc., 230 F. Supp. 2d 116 (D. Me. 2002)

While visiting Arcadia National Park, the Emerys took a carriage ride. They were told that they could stand while the carriage was stopped. While Mrs. Emery was videotaping standing in the carriage, the carriage moved forward and Mrs. Emery fell out of the carriage and was injured. She sued the stables for her injuries.

The court denied the motion for summary judgment by the stables on the basis of the equine immunity statute. A section of that statute required a valid certifi-cate, which the defendant did not show that it had. More significantly, however, the court did grant summary judgment on the plaintiff’s claim that while it

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was a common carrier, and thus had a heightened duty of care, the court held that a carriage ride was not a common carrier as opposed to an “amusement.”

Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002)

Byron Fielder was injured when a horse threw him on a guided trail ride. He was thrown as a result of another horse, ridden by an 11-year-old girl, becoming spooked as a result of her screaming. Although the girl had been properly matched to the horse, she apparently was frightened and had been intermittently screaming during the ride.

Fielder sued the stable, which defended on the basis of the equine immuni-ty statute. The appeals court upheld the trial court’s determination that the statute did not provide immunity because the injury was “a direct result of the negligence of the wranglers in failing to remove the child from the horse before it bolted.”

Giardino v. Brown, 120 Cal. Rptr. 2d 77 (Cal. Ct. App. 2002)

The plaintiff was injured at Girl Scout Camp when she was attempting to tie a horse named QUARTER to a hitching post and the horse became spooked causing her fingers to be caught in the rope. She sued the provider of the horse to the Girl Scout Camp, claiming that the provider negligently provided a horse that was “head-shy,” and thus unsuitable for inexperienced riders. The trial court granted summary judgment based on an assumption of the risk doctrine. However, the court of appeals reversed, noting that “there is a duty at least not knowingly or without due care to provide horses inappropriate for beginning riders to a children’s camp for novice riders.” The provider, the court said, should have been aware of the level of riding experience of the youngsters who would be riding the horses he provided.

Gibson v. Donahue, 772 N.E.2d 646 (Ohio Ct. App. 2002)

Plaintiff was injured when her horse threw her. She was riding in a field reserved for equestrian use. Defendant had run her dogs unleashed in the field, and they frightened the horse, which caused the throw. The Ohio Court of Appeals held that Ohio’s Equine Immunity Statute did not shield the dog owner from liability.

Hurwitz v. Strain, 773 N.E.2d 478 (Mass. App. Ct. 2002)

Sharon Lucas, a beginning rider, bought a horse named CHARLIE from William Strain, who said the horse would be suitable for her. He provided her also with a saddle but no helmet. After owning CHARLIE for a short period of time, Lucas was thrown from the horse and died from head injuries. Her

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estate sued Strain. The trial court granted summary judgment to Strain. The court of appeals upheld the summary judgment. The court held that once Strain showed that there was no prior incident with the horse, the burden shifted to the plaintiff to show the horse was unsuitable at the time sold. As to the claim that the defendant should have advised Lucas to wear a helmet, the court ruled that “riding a horse without one was such an obvious risk that, as a matter of law, no actual duty arose.”

Johnson v. Smith, 88 S.W.3d 729 (Tex. App. 2002)

Gregory Stewart worked for Charles Smith as an independent contractor. When leading a Thoroughbred stallion back to its paddock after breeding him, the stallion bit Stewart in the face. Stewart sued Smith. The trial court granted summary judgment to Smith based on Texas’ Immunity Statute. The court of appeals agreed that the immunity statute was applicable because leading a horse back to the paddock after breeding is an “equine activity” under the statute. However, the court reversed because there was an issue of fact as to whether the exception for not making a reasonable effort to determine the ability of the participant applied, given the owner’s knowledge of the vicious tendencies of the stallion.

Millan v. Brown, 743 N.Y.S.2d 539 (N.Y. App. Div. 2002)

A rider was injured in an accident when the horse she was riding became spooked. She sued the farm and its owner. The farm and its owner commenced a third-party action against the riding instructor. The court dismissed the third-party claim against the riding instructor. The appellate division, however, reversed holding that because there was an allegation that the riding instructor agreed to obtain a waiver, and because that waiver may have been effective, there was potential indemnity liability.

Ross v. Schwegel, 780 N.E.2d 287 (Ohio Ct. App. 2002)

A worker at the Schagrin Valley Hunt Club was injured while standing outside the stable of a horse named NEWMAN. A co-worker had apparently left the door to the stall open, and NEWMAN reached his head through the opening and bit the plaintiff on the chin. The worker sued the owner of the horse, under the theory that the owners had not informed the club about NEWMAN’s proclivity for biting. Trial court granted summary judgment, however, to the owners.

The Ohio Court of Appeals upheld the summary judgment, on the basis that the evidence showed that the owners had informed the club of the need to muzzle NEWMAN when working around NEWMAN. Therefore, the owners satisfied

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their duty of informing the club on NEWMAN’s dangerous propensities, and therefore could not be liable to the injured worker.

Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002)

Daya Sapone, while in Wyoming for vacation, took a two-hour private horseback ride from the defendant’s stable. An inexperienced substitute was conducting the horseback ride. Although helmets were available, she did not provide a helmet. There was no instruction or practice time in the corral, prior to proceeding on the ride.

On the descent down the mountain trail, Daya’s horse suddenly bolted and Daya fell from her saddle. With her foot stuck in the stirrup, she landed on her head and the horse kicked her in the head, causing injuries.

The district court granted summary judgment to the stable, based on the Wyo-ming Recreational Safety Act, and that bolting is an inherent risk of horseback riding. On appeal to the Tenth Circuit, the court underwent a fairly thorough analysis of what constitutes “inherent risk” under immunity statutes; the court observed that such statutes were now common in about 40 states.

The court noted that although a bolting horse is an inherent risk of horseback riding, that is not the specific question to be decided. It noted that Daya pre-sented evidence from an expert witness that the instructions were inadequate, the horse was too large, head gear should have been provided, and that the trail ride was too dangerous, etc. There were questions of material fact with regard to these issues. “The failure to fulfill these obligations may constitute violations of a duty separate and distinct from those embedded in the inherent risk of horseback riding.” The court, therefore, reversed the summary judgment entered by the district court.

2001

Allison v. Johnson, 2001 WL 589384 (Ohio Ct. App. 2001)

Melinda Allison was a passenger in Doug Johnson’s vehicle. Johnson stopped at his property to water his horses. While waiting, Johnson brought a horse out of the arena, but lost control of it. The horse backed into a gate, and a board popped out and injured Allison.

Allison sued to recover for her injuries, but Johnson was granted summary judgment based on Ohio’s Equine Immunity Statute. The statute applied to “spectators” at an “equine activity.” The Ohio Court of Appeals held that this applied to Allison. The court also ruled that the claim for negligent maintenance of the premises was likewise barred.

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Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001)

Defendant horse-riding stable conducted trail rides in a Wyoming National Forest, having a permit to do so from the Forest Service. Plaintiff was an in-experienced rider who was severely injured on a ride when her horse fell on her. She argued that the immunity provided the defendant under the Wyoming Recreation Safety Act was inapplicable because of federal preemption. She relied on standards set out in the Forest Service Manual. The court held that there was no preemption. However, the court did believe a material issue of fact existed as to whether the fall of the horse was an inherent risk of a trail ride, so summary judgment was denied.

Caubarreaux v. Free, 799 So. 2d. 603 (La. Ct. App. 2001)

Free, in the process of selling his horse, represented to Caubarreaux, a pro-spective purchaser, that the horse was gentle. While test-riding the horse, Caubarreaux was injured as a result of the horse becoming uncontrollable and falling on him. The verdict for Caubarreaux against Free was upheld on the basis of negligence, as Free knew the uncontrollable propensities of the horse.

Culver v. Samuels, 37 P.3d 535 (Colo. Ct. App. 2001)

Horse rider who sustained injuries when he was thrown off horse brought ac-tion against owner of horse for negligence. The District Court, Pueblo County, entered judgment for defendant. Rider appealed. The court of appeals held that owner was protected from liability by equine activity immunity statute.

Del Raso v. U.S., 244 F.3d 567 (7th Cir. 2001)

Del Raso was injured after he fell off a horse he was riding at a military base recreational riding facility. He claimed the facility failed to secure the saddle. He sued under the Federal Tort Claims Act. The trial court granted the U.S. summary judgment based on the release he signed prior to riding. Del Raso claimed the release was invalid as having been fraudulently induced, as the instructor referred to it as a “waiting list.” The court of appeals rejected this as creating an issue of fact, holding that there was no evidence of fraudulent intent, nor was reliance on the “waiting list” statement reasonable as Del Raso had ample time to read the document he signed.

Hawkins v. Peart, 37 P.3d 1062 (Utah 2001)

Prior to a trail ride, the mother of the 11-year-old rider signed a “Release Form” on behalf of her daughter. The Release Form not only purported to release the

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stable from liability, but required the mother to indemnify the stable in the event of a claim. The Supreme Court of Utah held that the release was invalid, because, as a matter of public policy, a parent could not release a child’s claim. Moreover, the indemnity was void as against public policy.

Morella v. Fletcher Farm, 288 A.D.2d 447 (N.Y. App. Div. 2001)

The plaintiffs commenced action to recover damages for personal injuries, etc., after the plaintiff Lynda Morella was allegedly thrown from a horse and injured while taking riding lessons at the defendant’s premises.

The supreme court, inter alia, denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action sounding in negligence. This was affirmed on appeal with the court stating that the defendant failed to make a prima facie demonstration of entitlement to judg-ment as a matter of law on its argument that the damages alleged arose from appreciated risks inherent in horseback riding that were voluntarily assumed by the injured plaintiff.

Papa v. Ruso, 279 A.D.2d 744 (N.Y. App. Div. 2001)

Girl was injured at a riding academy when horse slipped and fell. Summary judgment was granted in favor of the riding academy on the basis of assumption of risk. The judgment was upheld on appeal because the plaintiffs, although they identified alleged defects in the design and construction of the riding arena, failed to show that the design deviated from the standard of care in the industry.

Smith v. Roussel, 809 So. 2d 159 (La. Ct. App. 2001)

The Smiths sued Roussel after an injury occurred to Mr. Smith following their purchase of a horse. The Smiths claimed that the Roussels did not reveal the skittish temperament of the horse. The issue in the case was whether the Rous-sels’ insurer, Allstate, covered the claim, which depended on whether Roussel was liable for negligence, rather than an “intentional act.”

The trial court ruled in favor of the Smiths. The appeals court upheld the trial court’s ruling, reasoning that Roussel had a duty to warn, and breached that duty. Thus, “the risk of harm fell within the scope of protection afforded by the duties to give correct information and to warn.” Because the insurance policy provided that Allstate would pay damages which the insured becomes legally obligated to pay as a result of an occurrence, Allstate was liable in this instance.

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Wendt v. Jacus, 288 A.D.2d 889 (N.Y. App. Div. 2001)

Plaintiff, an experienced horsewoman, was injured when the horse on which she was riding fell backward onto her. Plaintiff testified at her deposition that the accident occurred in one of two ways: either the horse reared up due to the presence of nearby foals or it fell into a hole. Plaintiff, however, alleged that defendants were negligent based only on the presence of nearby foals.

Assuming that the plaintiff could demonstrate that the accident was caused by the presence of foals, the appellate court concluded that her negligence claim nevertheless should have been dismissed. Defendants established that plaintiff assumed the risk of her injuries in light of her considerable riding experience, her admitted familiarity with the horse and the terrain, and her knowledge that the horse was excited on the day of the accident and plaintiff failed to raise a triable issue of fact.

Wiederkehr v. Brent, 548 S.E.2d 402 (Ga. Ct. App. 2001)

Georgia’s Equine Immunity Statute created immunity from liability, but required an “Equine Activity Sponsor” to post a specific sign as a condition of such immunity. The plaintiff was lent a horse to ride by the horse owner. When he mounted the horse, it reared and injured him. The court of appeals affirmed summary judgment in favor of the owner, holding that no evidence had been presented that the owner was an “Equine Activity Sponsor,” and was thus required to post a sign as a condition of immunity.

2000

Adams v. Hare, 536 S.E.2d 284 (Ga. Ct. App. 2000)

Adams, a horse trainer, sued horse owner for injuries when the horse kicked her. Summary judgment was granted to the owner on the basis of the Equine Activities Act. Adam’s argument on appeal that “willful and wanton” exception applied because the owner failed to disclose the horse’s “dangerous behavioral patterns” was rejected because there was no evidence that the owner knew the horse would intentionally kick people.

Bove v. Schlosstein, 2000 WL 1715679 (Wash. Ct. App. 2000)

Plaintiff’s ten-year-old son was bitten by a horse owned by the defendant when he leaned over a fence to pet him. The trial court awarded summary judgment to the defendant on the basis that the boy was a trespasser. The court of appeals reversed because there was evidence the boy was a licensee because there was testimony he had been given permission by a farm worker to pet the horse. The

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court ruled that a trier of fact could determine that using a fence that a horse could lean over could be a failure to exercise reasonable care.

Brumfield v. Gafford, 768 So. 2d 223 (La. Ct. App. 2000)

Rider was injured after being thrown from a horse. Rider sued the owner of the property where the horse was stabled, but the court granted summary judgment. The summary judgment was upheld on appeal because it was clear that no master-servant relationship existed between horse owner and property owner.

Clark v. White, 758 So. 2d 370 (La. Ct. App. 2000)

Plaintiff claimed that while she was standing in a ditch near a pasture a horse came over the fence and bit her. The trial court determined from the testimony that the horse was properly confined. The court of appeals affirmed.

Cole v. Ladbroke Racing, 614 N.W.2d 169 (Mich. Ct. App. 2000)

Exercise rider was injured when horse he was riding was spooked and threw him to the ground. The court of appeals ruled the Michigan’s Equine Activity Liability Act did not apply to horse race meetings. The court ruled, however, that the broad release signed by the rider barred the action. He had signed the release while pursuing opportunities as a jockey agent in a prior care season, for which he was not functioning at the time of the accident. The release covered “all risks of any injury that the undersigned may sustain while on the premises.”

Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000)

Rider was injured when his saddle slipped during a trail ride. Rider sued stable on the basis of negligence. Summary judgment was granted to the stable on the basis of the Wyoming Recreation Safety Act. The court of appeals affirmed, holding that a saddle slipping is an inherent risk of horseback riding based on expert testimony presented by the plaintiff that saddles slip for a variety of reasons.

Cuddeback v. Flanagan, 2000 WL 1146850 (Wash. Ct. App. 2000)

Leann Cuddeback was injured when riding a horse owned by Susan Flanagan at Ms. Flanagan’s party. The injury occurred when the horse got spooked and reared. There was speculative testimony concerning how Cuddeback lost control of the reins. The trial court entered summary judgment for Ms. Flanagan. The court held that the negligence standard in Washington was that set forth in the Restatement (second) of toRts § 518, which provides that an

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owner of a domestic animal not known for dangerous propensities is subject to liability for harm done by the animal only if the owner is negligent in failing to prevent the harm. Because the liability and cause of the injury were based on speculation, the lower court’s decision was upheld.

Eagle Insurance v. Butts, 707 N.Y.S.2d 115 (N.Y. App. Div. 2000)

Plaintiff, who was injured when horse she was leading from van down at-tached ramp jumped, sued owner of horse and van, alleging that owner had negligently trained the horse. Owner’s insurer under general liability policy defended owner in action, and subsequently requested that second insurer which had issued automobile policy to owner covering van assume defense. The Supreme Court, Dutchess County, upheld second insurer’s disclaimer of coverage, and declared that it was not required to defend or indemnify owner. The court held that incident was not result of ownership, maintenance, or use of van, and thus did not come within scope of automobile policy.

Hussey v. Seawell, 527 S.E.2d 90 (N.C. Ct. App. 2000)

Visitor to horse farm, while moving a couple of horses from one pasture to another, was injured when the gate separating the pastures unexpectedly closed on the second horse, causing him to rear up and kick the visitor. The visitor alleged that the farm owner failed to warn her that the gate automatically closed, and that one of the horses was “spirited.” The jury’s verdict in favor of the visitor was upheld as reasonably supported by the evidence.

Kangas v. Perry, 620 N.W.2d 429 (Wis. Ct. App. 2000)

Dawn Kangas was injured after falling from a horse-drawn sled, and she sued the owner. The trial court granted summary judgment based on Wisconsin’s Equine Immunity Statute. The court of appeals held that the statute applied to both equine professionals and non-professionals, and that a horse’s propensity to move without warning is an inherent risk of equine activity contemplated by the state. It thus affirmed the summary judgment.

Kryzer v. Passow, 2000 WL 944812 (Minn. Ct. App. 2000)

Kryzer’s suit for injuries suffered as a result of being thrown from a horse was dismissed on summary judgment. The court of appeals held that the summary judgment was proper because Kryzer knew the propensities of the horse and the risks of horseback riding.

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Powers v. Mukpo, 2000 WL 33170940 (Mass. Super. Ct. 2000)

Plaintiff was injured during a riding lesson. The court determined that the defendant was not immune from suit under the Massachusetts Equine Statute, despite a release, because the stable did not have a license. In addition, there was a genuine issue of fact as to whether the stable made “reasonable and prudent” efforts to provide an appropriate horse.

Pullan v. Steinmetz, 16 P.3d 1245 (Vt. 2000)

Young girl was injured when she attempted to feed a horse at a neighborhood stable. She sued the Association that owned the stable under theories of strict liability, negligence, and attractive nuisance. The court, in affirming a sum-mary judgment, declined to adopt a strict liability standard, and determined that even if a simple negligence standard applied, there was no evidence of negligence on the part of the Association. “Simply maintaining a horse in a stable in a residential subdivision without any knowledge or reason to know that a child from outside the Association was frequenting the stables and hand-feeding the horses without permission or supervision is insufficient basis to find negligence.”

The court also determined that the attractive nuisance doctrine was inapplicable because the plaintiff could not satisfy the requirement that the place was one where children were likely to trespass. There was no evidence presented that the Association knew that children were entering the stable without permission.

Red Arrow Stables, Ltd. v. Valesquez, 725 N.E.2d 110 (Ind. Ct. App. 2000)

Service on Girl Scouts was defective, and thus complaint was dismissed on the basis that the statute of limitations had run.

Willeck v. Mroteck, Inc., 616 N.W.2d 526 (Wis. Ct. App. 2000)

Owners of a horse-riding business were sued for injuries sustained when barking dogs startled the horses, who threw their riders. Owners successfully argued before the trial court that they were immune under Wisconsin’s Equine Activity Statute and that the dogs were a superceding cause. The court of ap-peals reversed, holding that there was no showing that the owners complied with their obligation under the statute to determine a customer’s riding ability. With regard to whether the dogs were a superceding cause, the court held that there was no finding that they were a substantial factor in causing the injuries.

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1999

Allis v. Turner, 259 A.D.2d 995, 688 N.Y.S.2d 864 (N.Y. App. Div. 1999)

Plaintiff was injured by a horse that escaped from the defendant’s farm. In reversing the trial court’s dismissal of the complaint, the appellate division reaffirmed the New York rule that the doctrine of res ipsa loquitur applies to horses.

Amburgey v. Sauder, 605 N.W.2d 84 (Mich. Ct. App. 1999)

Woman who was bitten by horse as she walked through stable brought action against owner and operator of stables for injuries to her arm and shoulder. The Circuit Court granted summary disposition for stable owner, and plaintiff appealed as of right. The court of appeals, held, as matters of first impression, that: (1) Equine Activity Liability Act (“EALA”) created a grant of “immu-nity,” for purposes of motion for summary disposition on grounds that claim was barred by immunity granted by law; (2) plaintiff, who toured barn and assisted in grooming friend’s horse, was a “participant,” for purposes of EALA; (3) EALA insulated stable owner from liability arising out of unanticipated, abnormal equine behavior; (4) stable owner’s posting a conforming sign at the main entrance to the stable, in close proximity to equine activity, complied with EALA as a matter of law; (5) EALA superseded common-law doctrine of strict liability as it pertained to equines; and (6) plaintiff was not entitled to amend her complaint to assert negligence claim.

Bradford v. Kaster, 732 So. 2d 827 (La. Ct. App. 1999)

Parents of child who was killed when horse stepped on his head after child climbed over or under fence to retrieve ball sued owner of pastureland and lessees/horse owner. The district court denied defendants’ motions for summary judgment. Defendants applied for supervisory writs. On remand, the court of appeals held that it was not an unreasonably dangerous risk to let horse roam over historical pastureland within three-strand barbed-wire fencing that barred horse’s egress from pasture.

Carl v. Resnick, 714 N.E.2d 1 (Ill. App. Ct. 1999)

Horse rider was riding her horse on a trail, when she stopped to talk to another rider. Suddenly, the other horse reared and kicked the rider and her horse, causing injury. The rider sued the owner of the other horse, who was not the rider of the other horse at the time.

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In reversing the trial court’s grant of summary judgment against the injured rider, the Illinois Court of Appeals first ruled that the owner was not shielded by Illinois’ Equine Activity Liability Act. Relying on Carmel, The Equine Activity Liability Acts, 83 Ky. L.J. 157 (1994-95), the court held that the Act did not apply to recreational riding of one’s own horse.

The court also held that the owner of the other horse was strictly liable for the injuries under Illinois’ Animal Control Act, unless the defendant could show that the horse was provoked. As evidence of such provocation was speculative, the court ruled that summary judgment should have been granted in favor of the injured rider

Karlovich v. Nicholson, 1999 WL 960583 (Ohio Ct. App. 1999)

Karlovich was injured while riding a horse owned by Nicholson and at the stables of Nicholson. The injury occurred when she tried to dismount as the horse unexpectedly took off toward a fence. She sued Nicholson, but the trial court granted Nicholson summary judgment.

The court of appeals affirmed. The court held that Karlovich was a social guest, and that there was no implied or express warranty that the horse was safe to ride. Furthermore, although Nicholson had a duty to warn of the horse’s dangerous propensities, because Karlovich had been in an equal if not better position to observe the behavior of the horse (she was a regular visitor), the court held that she had assumed the risk of the horse’s erratic behavior by riding the horse.

Lecznar v. Sanford, 697 N.Y.S.2d 186 (N.Y. App. Div. 1999)

Horsewoman brought personal injury action against horse farm owners, seeking recovery for injuries she sustained when she was kicked by unrestrained and unattended horse running loose in barn. The court held that: (1) genuine issue of material fact existed as to whether two unrestrained and unattended horses running loose into barn and past horsewoman on barn walkway presented unexpected emergency situation; (2) genuine issue of material fact existed as to whether horsewoman’s actions in trying to lead one of two unrestrained and unattended horses into stall were reasonable and prudent in face of emergency; and (3) horsewoman was not engaged in recreational, entertainment, or sporting activity or event at time she was injured.

Lessman v. Rhodes, 721 N.E.2d 178 (Ill. App. Ct. 1999)

Participant in a horse show, who was injured when stallion bucked, brought action against show’s sponsor, and stallion’s rider and owner, alleging negligent and willful and wanton conduct. The circuit court granted defendants’ motion to

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dismiss all counts, except willful and wanton action against sponsor. Participant appealed. The appellate court held that horse show sponsor did not engage in willful or wanton conduct, for purposes of Equine Activity Liability Act, by failing to conduct background checks into horses, separate or exclude stallions from participating in show, or requiring “kickers” to wear ribbons on their tails.

Lupi v. Home Creators, Inc., 696 N.Y.S.2d 291 (N.Y. App. Div. 1999)

Patron brought personal injury action against owner of indoor horseback rid-ing arena, seeking recovery for injuries she sustained when her horse slipped in accumulation of ice under arena’s dirt floor and threw her to ground. The supreme court entered judgment in favor of owner, and patron appealed. The supreme court, appellate division, held that owner neither created icy condition beneath arena’s dirt floor nor had actual or constructive notice of leaking water pipe eight feet below floor surface which caused ice to accumulate.

Medford v. Duggan, 732 A.2d 533 (N.J. Super. Ct. App. Div. 1999)

Plaintiff, who was thrown from horse she was riding when dog barked at it, brought personal injury action against dog’s owners, and moved for produc-tion of statements that owner and non-party witness had given to owners’ insurance carrier. The superior court granted motion. Owners appealed. The superior court, appellate division, held that plaintiff was entitled to production of witness’s statement, but not owner’s statement.

Nielson v. AT&T Corp., 597 N.W.2d 434 (S.D. 1999)

Rider’s horse tripped in a cable trench dug by AT&T, killing rider. Rider’s family sued both for wrongful death and for infliction of emotional distress as bystanders. AT&T asserted it was entitled to immunity under the South Dakota Equine Activities Act. The appeals court disagreed. Moreover, the court decided that bystanders had a cause of action for negligent infliction of emotional distress.

Roe v. Keane Stud Farm, 690 N.Y.S.2d 336 (N.Y. App. Div. 1999)

Horse trainer brought personal injury action against owners of horse farm, seeking recovery for injuries she sustained when she was kicked by horse as she assisted in loading it onto trailer. The supreme court entered partial judg-ment in favor of owners, and trainer appealed. The supreme court, appellate division, held that genuine issues of material fact existed as to whether owners were negligent in failing to warn trainer of horse’s dangerous propensities and failing to properly medicate horse prior to attempting to load it onto trailer.

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Salazar v. Riverdale Riding Corp., 701 N.Y.S.2d 878 (N.Y. App. Div. 1999)

Action was brought against equestrian center to recover for injuries sustained by rider during riding lesson. Center moved for summary judgment dismissing complaint on grounds of release signed by rider. The supreme court held that equestrian center was not a place of amusement or recreation for purposes of statute that made agreements exempting such places from liability for negli-gence void and unenforceable.

Schwartz v. Armand Erpf Estate, 688 N.Y.S.2d 55 (N.Y. App. Div. 1999)

A young boy crawled under an electric fence of the farm next to where he lived to try to pet a horse. The horse kicked the boy, severely injuring him, and his parents sued the owner of the horse. The trial court denied summary judgment. Although Pennsylvania had a “vicious propensity” rule, there was no indication in the record that the horse had such a propensity. On appeal, the court considered whether recovery could be based on an ordinary negligence standard, rather than solely under the vicious propensity test.

The court held that an ordinary negligence standard applied even if there was no known vicious propensity. The court further held that although a horse owner did not have to take special measures to protect adults from the normal conduct of horses, the law “imposes on landowners a more exacting duty when they are aware that children will be present on the premises.”

Smith v. Hunting View Farm, 695 N.Y.S.2d 802 (N.Y. App. Div. 1999)

Minor, through her parents, brought personal injury action against owner of horse training facility, seeking recovery for injuries she sustained when she was kicked in head by horse she was grooming. The supreme court denied owner’s summary judgment motion, and owner appealed. The supreme court, appellate division, held that minor was aware of and assumed risks inherent in horse training.

State Auto. Mut. Ins. Co. v. Dolosich, 735 N.E.2d 38 (Ohio Ct. App. 1999)

Ms. Dolosich was injured when bitten by a horse at an indoor arena at Dog-wood Trails. Dolosich sued the owner of Dogwood Trails. The owner of the premises had a homeowner’s insurance policy, and the insurer brought a declaratory judgment action seeking a determination that the policy did not

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cover the owner for indemnity against the claim. The court held that even though no profit had been made by the owner, and it was not the owner’s source of livelihood, Dogwood Trails was a “business pursuit” and excluded under the policy’s coverage.

Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296 (D. Wyo. 1999)

Horse rider sued dude ranch owner for injuries resulting from a fall from a horse. The rider alleged negligence. The district court granted summary judg-ment to the dude ranch on the basis of the liability release, in which the rider: (1) acknowledged and assumed certain integral risks of horse-related activities, and (2) waived any claims against the ranch for injury, including those caused by the ranch’s negligence. The court held that the release was not contrary to public policy, and was thus enforceable, and was clear and unambiguous.

Note: The full text of the release is set out in the court’s opinion.

Turner v. Moore, 752 So. 2d 908 (La. Ct. App. 1999)

In a victim’s suit against insured to recover for injuries caused by horse, the district court entered partial summary judgment in favor of the homeowners’ insurer. Certification of appeal by victim and insured was granted. The court of appeal held on rehearing that certification was improper.

Wilburn v. Honeycutt, 519 S.E.2d 774 (N.C. Ct. App. 1999)

Horseback rider sued motorist for negligence and willful and wanton conduct after motorist struck horse when he met it on long, straight, single-lane dirt road. The superior court granted motorist’s motion for directed verdict. Rider appealed. The court of appeals held that jury questions were presented as to whether rider was contributorily negligent, and as to whether motorist exhibited willful or wanton conduct.

1998

B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998)

Rider sued livery to recover for injuries sustained when she was thrown from a horse, alleging that the livery failed to take into account her riding ability and used faulty gear. The Supreme Court of Colorado upheld summary judgment in favor of the livery on the grounds that all claims had been waived by the release signed prior to riding.

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Bothell v. Two Point Acres, Inc., 965 P.2d 47 (Ariz. Ct. App. 1998)

Young girl’s hand was injured when a horse ran through the rope with which she was leading another horse at a riding stable. The girl’s parents sued. Sum-mary judgment was granted to the stable on the basis of the release signed by the girl’s father, which release acknowledged risks associated with “horse riding.” The court of appeals held that a trier of fact could find that the release did not cover leading a horse, and thus summary judgment was inappropriate. The court further held that Arizona’s Immunity Statute was no shield for the defendant because the statute, which was ambiguously-worded and had an uncertain legislative history, did not cover non-riding activities.

Hill v. Harris, 1998 WL 960763 (Del. Super. Ct. 1998)

Hill, who was injured in a fall at a riding stable, sued both the proprietor of the riding stable, and his wife. Hill claimed that the wife, who owned the land on which the riding stable was operated, was a partner in the riding stable business. The wife moved for summary judgment on the basis she was not a partner. The court denied the motion, holding that although the wife could not be liable merely as a landlord, there was evidence that she was a partner.

Park-Childs v. Mrotek’s, Inc., 578 N.W.2d 210 (Wis. Ct. App. 1998)

Prior to riding, later-injured rider signed the following release:

In consideration of Helen Mrotek, doing business under the name and style of Mrotek’s, Incorporated, entering into a contract for hire of a horse or horses, with the undersigned, and for other valuable consideration...the undersigned does hereby release and hold Helen Mrotek harmless from any liability for injuries or damages suffered or caused by reason of the hire of said horse, or horses.

Shelly v. Stepp, 73 Cal. Rptr. 2d 323 (Cal. Ct. App. 1998)

Eric Shelly was injured when a racehorse he was exercising at Los Angeles County Fairplex Park collided with another horse on the track. Shelly sued the owner of the track, but the case was dismissed on summary judgment under the assumption of risk doctrine. The court of appeals affirmed, holding that because “racehorses are by their nature difficult to control” the activity fell within the assumption of risk doctrine.

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Personal Injury: Collisions with Horses

PERSONAL INJURY: COLLISIONS WITH HORSES

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2017

O’Hara v. Holiday Farm, 147 A.D.3d 1454 (N.Y. App. Div. 2017)

Plaintiff was injured when her vehicle collided with an escaped horse. She sued the owner and the farm where the horse was boarded. The trial court granted summary judgment against the owner of the horse, and dismissed the strict liability claim against the farm.

The appellate division affirmed. The owner, it stated, had no responsibility for keeping the horse from escaping because “defendant was not in exclusive control of the horse or the barn and stalls where the horse was kept.” As for the strict liability claim, the court also affirmed its dismissal because the record did not show that the defendant knew of any prior vicious propensities of the horse.

Peoples v. Tuck, 2016 WL 6081423 (N.C. Ct. App. 2016), on remand, 2017 WL 4126959 (N.C. Ct. App. 2017)

Tuck, an experienced rider, hitched his horse to a post, but somehow the horse got free and collided with a vehicle. The occupants of the vehicle sued the rider. The court granted summary judgment to the rider.

The court of appeals reversed. It held that although the doctrine of res ipsa loquitor did not apply, and thus there was no presumption of negligence, there was sufficient evidence for a jury question as to whether Tuck had exercised reasonable care in hitching the horse and leaving the horse unattended in a non-fenced area. The court also noted that whether the horse had a known dangerous propensity was irrelevant in a case involving an injury caused by an escaped horse.

The defendant sought discretionary review with the North Carolina Supreme Court. That court remanded the case to the court of appeals to consider recent precedent. The court of appeals again reversed the summary judgment, holding that the expert report submitted by the plaintiffs presented an issue of material fact. The expert was a veterinarian, who opined that the hitching of a horse in a strange location outside a fenced area was failure to exercise reasonable care.

2016

Deveneau v. Wielt, 144 A.3d 324 (Vt. 2016)

Motorist was injured from a horse that escaped from land owned by Toomey but leased to Wielt. The motorist sued both, but the trail court granted summary judgment to the landowner.

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On appeal the Supreme Court of Vermont recognized that the issue of the liabil-ity of the landowner, as opposed to the possessor, was one of first impression. It affirmed the summary judgment because the landowner had no legal duty. The court rejected the assertion that Restatement § 379A applied. It held that “allowing a tenant to pasture a horse on the property does not, without some assumption of responsibility for control of the animal, create liability for permitting an unreasonable risk.”

The lengthy dissent strongly criticized that holding, calling it a “dramatic departure from ordinary common law tort principles…”

Henrickson v. Grider, 70 N.E.3d 604 (Ohio Ct. App. 2016)

Horses owned by Grider escaped, resulting in a collision and injury to Hen-drickson. The horses escaped from property adjacent to Grider’s, which property was owned by Gartner. Gartner had allowed the horses to graze on her property, an arrangement made by Grider’s son in law, Cope. Henrickson sued Grider, Cope, and Gartner.

The trial court granted summary judgment on the claim based on the statute imposing liability on a keeper of escaped horses. The appellate court affirmed, noting that neither Gartner nor Cope exercised daily care for or control over the horses.

The trial court also granted summary judgment on the claim for common law negligence. The court of appeals affirmed that decision as well, holding that there was no evidence that they should have foreseen the escape.

Prejean v. State Farm Mut. Auto. Ins. Co., 183 So. 3d 823 (La. Ct. App. 2016)

Riders were riding horses at night on a highway, when one horse got hit by a vehicle, resulting in injury to the riders and the euthanized death of the horse. A trial resulted in a verdict in favor of the injured riders against the drivers.

On appeal the defendant asserted that the court should have instructed there was a statutory duty to have a light on a horse, and that there should have been some apportionment of liability. The court rejected the first argument, as the statute applied to vehicles. The court agreed, though, that there should have been apportionment:

We do not think that reasonable people could assess [the defendant] with 100% of the fault in causing this accident. Riding a dark horse in dark clothing at dusk is simply unwise….While [the defendant] was most certainly inattentive, Prejean and his companions were unwise in their travels.

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The court apportioned 50% of the damages to the plaintiffs, and thus reduced the verdicts by one-half.

2015

Williams v. Pauley, 768 S.E.2d 546 (Ga. Ct. App. 2015)

Carl Pauley’s vehicle collided with a horse that strayed onto a highway, re-sulting in Pauley’s death. His estate sued a police officer, who had responded to a 911 call alerting that the horse was loose on the highway, for negligently failing to remove the horse from the highway. The trial court denied the offi-cer’s motion for summary judgment based on immunity. The court of appeals reversed, holding that the officer’s actions were discretionary and in his capacity as an officer, and he was therefore entitled to official immunity.

2014

Com. v. Vogelsong, 90 A.3d 717 (Pa. Super. 2014)

Vogelsong was convicted of recklessly endangering another person as a result of her horse being loose on a local roadway. She challenged the sufficiency of the evidence on appeal. The court upheld the verdict, concluding that a horse being found unattended on a roadway is prima facie evidence of reckless endangerment.

Sholberg v. Truman, 852 N.W.2d59, 2014 WL 2595633 (Mich. 2014)

Driver killed in collision with escaped horse. Summary judgment was granted to the owners of the land from which the horse escaped. The court of appeals affirmed. It held that the Michigan Equine Liability Act, although it did not abrogate a cause of action for negligence, did not create a cause of action. It also held that because the landowners did not manage and maintain the land, they could not be liable. It subsequently held that the landowners could potentially be liable under a nuisance theory. In Re Estate of Sholberg, 2012 WL 5855045 (Mich. Ct. App. 2012).

On further appeal to the Michigan Supreme Court, the court held that mere ownership of land does not create liability for nuisance, as some measure of control of the use of the land is required. In this case, the owners had never controlled the property, and had not even visited the property for more than three decades. Thus, there could be no basis for liability under a nuisance theory.

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Vaughn v. Shepard, 2014 WL 1493126 (N.D. Ohio 2014)

Vaughn was injured when his vehicle struck escaped cattle. He sued the land owner and the keeper of the cattle. The keeper’s motion for summary judgment was denied even though there were no factual showings of negligence. The court stated that Ohio’s animals-running-at-large statute created a rebuttable presumption of negligence. Summary judgment was granted to the landowners, as they were not “owners or keepers” of animals under the statute.

Wilson v. McDaniel, 327 P.3d 1052 (Kan. Ct. App. 2014)

Passenger was injured when the vehicle in which she was a passenger hit a mule loose on the roadway. She sued the driver and the owner of the mule. Despite an expert opinion that the fence was inadequate, the trial court granted summary judgment to the mule owner, and also to the driver.

The court of appeals affirmed. As for claim against the owner, the court held that the cause of the escape could only be based on mere speculation. It rejected the assertion that the expert created an issue of fact because his opinion was based on the condition of the fence two years prior.

2013

Russell Equestrian Center, Inc. v. Miller, 406 S.W.3d 243 (Tex. App. 2013)

Horses escaped from a farm, causing a collision with a vehicle which injured the driver. The jury determined that the owners of the farm were liable for both negligence and gross negligence. On appeal, the defendants challenged the admissibility of the plaintiff’s expert testimony. The court agreed, because the expert, although he testified that the fence was inadequately installed, did not state that that was the cause of the horses escaping. However, because the farm owner testified that the horses likely escaped through gap in the fence, there was sufficient evidence of negligence to support the negligence verdict. The court reversed the gross negligence verdict because there was no evidence that the farm owners were actively and subjectively aware of the extreme risk of harm.

2012

Dobkins v. Pearcy, 2012 WL 23262 (N.M. Ct. App. 2012)

Vehicle owner contended that horses bit and damaged his vehicle. The trial court found that there was insufficient evidence, and that he did not present

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evidence of reduced value resulting from the alleged biting. The ruling was upheld on appeal.

Ladnier v. Hester, 98 So. 3d 1025 (Miss. 2012)

Motorist was injured when her vehicle struck one of several escaped horses. Her suit against the owner for negligence was dismissed on summary judgment. The court of appeals reversed, holding that there was insufficient evidence that the fence was adequate, and the burden was on the defendant to show that it was adequate when moving for summary judgment.

2011

Garner v. Langford, 55 So. 3d 711 (Fla. Dist. Ct. App. 2011)

Motorist was seriously injured and later died after his vehicle collided with an escaped horse. Over the estate’s request for a continuance, which was denied, the jury rendered a verdict for the defendant horse owner. On appeal, the court reversed, holding that the motion for continuance should have been granted.

Hayes v. Henley, 84 So. 3d 60 (Ala. 2011)

Driver was injured when his vehicle collided with an escaped horse. He sued the horse owner’s estate and the horse owner’s wife. The trial court granted the wife’s motion to dismiss, which was affirmed on appeal because she was not the owner of the horse.

Jewett v. Miller, 263 P.3d 188 (Kan. Ct. App. 2011)

Passenger and driver were injured when their car hit an escaped horse. They sued the farm owner for negligence. The trial court granted summary judgment to the farm owner.

The court of appeals affirmed. It reviewed the testimony of the owner and found that the hole in the fence occurred on the day of the escape as a result of erosion. The court noted that that was insufficient to presume negligence, and plaintiffs provided no evidence of negligence. The court noted that the owner had regularly inspected the fence and that there were no prior instances of a horse escaping.

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L.S. v. Scarano, 2011 WL 4948099 (S.D. Ohio 2011)

Child was severely injured when truck hit buggy she was riding in. The court denied several motions in limine concerning proposed experts of the plaintiff.

Lemma v. Pennwood Racing, 2011 WL 2349820 (N.J. Super. Ct. App. Div. 2011)

Driver of horse at Freehold Raceway involved in a collision. He sued New Jersey for failing to enforce its regulations and the racetrack for negligence in operating the track. Summary judgment was entered in favor of the defendants. The court of appeals affirmed as to the State, holding that it had absolute immu-nity. The limited exception to immunity was provided by statute, but the statute specifically precluded claims based on failing to adopt or enforce any law.

As to the track, the court of appeals agreed with the trial court that manage-ment of a racetrack was not something within the experience of jurors, and therefore expert testimony was required to prove a standard of care. Because the driver did not produce an expert in the time required by the scheduling order, summary judgment was affirmed.

Tennant v. Tabor, 932 N.Y.S.2d 648 (N.Y. App. Div. 2011)

Motorist was injured when his vehicle collided with an escaped horse. He sued the horse owner. The trial court denied the horse owner’s motion for summary judgment but the court of appeals reversed. The court held that the claim for strict liability did not justify a triable issue of fact where the owner testified that he had no prior knowledge of the horse jumping a fence.

Vichot v. Day, 913 N.Y.S.2d 838 (N.Y. App. Div. 2011)

Driver injured when her vehicle collided with an escaped horse. She sued the owner. The trial court denied the owner’s motion for summary judgment. The court of appeals reversed, stating summary judgment should have been granted because there was no evidence in the record that the horse had a propensity to escape.

Willis v. Holder, 2011 WL 240111 (Ind. Ct. App. 2011)

Driver was injured when vehicle collided with escaped horse. Driver sued the owner of the horse, who was granted summary judgment. Summary judgment was affirmed on appeal because the evidence showed that the owner had a proper fence and had never had an escape in twenty years. The court emphasized

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that “the escape of an animal is not negligence per se”, and that a plaintiff had to prove that the confinement was ineffective and that the escape was reason-ably foreseeable. It noted that although the fence was in good condition, “the horse escaped anyway, but sometimes, accidents happen.”

2010

Figueroa v. Tornabene, 74 A.D.3d 872 (N.Y. App. Div. 2010)

Driver and passenger of a vehicle were injured when they struck a runaway horse pulling a hansom cab. They sued the owner and the operator of the horse and cab. Based on the deposition testimony, the appeals court held that the trial court should have granted summary judgment because there was no evidence that the horse and cab driver was negligent; the horse was spooked by a loud noise.

Gromer v. Matchett, 2010 WL 3467727 (Mo. Ct. App. 2010)

Automobile driver was injured when his vehicle collided with a horse that es-caped as a result of an open gate. He sued the owner of the farm that possessed the horse. At trial, the court gave an instruction based on the strict liability of the Stock Law, and a verdict was rendered for the driver.

The court of appeals reversed, holding that the Stock Law explicitly applied to owners of the animals, and thus did not apply to a mere possessor.

Schysm v. Boyd, 2010 WL 3213679 (La. Ct. App. 2010)

After a few drinks at a casino, driver proceeded on I-20, where he struck a horse that had escaped from a farm. He sued the owner of the horse and the Louisiana DOT. The jury entered a verdict against the owner and the DOT, awarding damages in excess of $800,000. The damages were assessed 50% to the DOT, 30% to the owner, and 20% to the driver (for impairment from drinking). On appeal, the court reversed as to the DOT’s liability, holding that the failure of the DOT to build and maintain a right-of-way fence was not negligence, as such a fence was for the purpose of keeping motorists from entering the highway, not preventing animals from doing so. It affirmed as to the owner, because the burden was on the owner of an escaped horse to prove no negligence, and the jury did not believe the owner met that burden.

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Stanislav v. Papp, 2009 WL 2929772 (N.Y. Sup. Ct. 2009), aff’d 911 N.Y.S.2d 60 (N.Y. App. Div. 2010)

Plaintiff and defendant met on Match.com, where they both had pictures of themselves on horses. On the first date in New York City, they talked about their mutual interest in horseback riding. On the second date, plaintiff rode a horse supplied by defendant. Well into the trail ride, the horse lunged, and plaintiff fell off, injuring herself. She sued her date.

Defendant moved for summary judgment on the basis that he had no duty of care to plaintiff. The court agreed, noting:

The parties, who had only recently met, were on a date. The nature of their relationship did not obligate Defendant to assess and accom-modate Plaintiff’s level of expertise and experience…

The court of appeals affirmed in a very short opinion stating that the defendant owed no “duty to insure that the horseback riding experience was safe.”

2008

Bynum v. Whitley, 2008 WL 304737 (N.C. Ct. App. 2008)

Bynum was injured when the vehicle in which he was a passenger collided with a horse, owned by Whitley, that had escaped onto the highway. The horse had apparently pushed over the fence, which was possible due to the temporary removal of the barbed wire and the soft condition of the ground caused by rain. The trial court directed a verdict for Whitley. The court of appeals agreed that the plaintiff must prove negligence on the part of the keeper, but held there was sufficient evidence of negligence to go to the jury. It rejected the contention that no prior escape was indicative of no negligence.

Carter v. Lloyd, 2008 WL 5401447 (La. App. Ct. 2008)

Plaintiff was seriously injured when he swerved his vehicle to avoid hitting two horses on the road. He sued the person he thought was the owner of the horses. Unfortunately, he could not definitively prove that the escaped horses belonged to the defendant, so summary judgment was granted, and upheld on appeal.

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2007

Goldman v. Graber Post Buildings, Inc., 2007 WL 3046268 (S.D. Ill. 2007)

Passenger in an automobile was killed when the vehicle collided with a horse that had escaped onto the highway. Her estate sued what was believed to be the horse owner’s employer, under the respondeat superior doctrine, but the court granted summary judgment because the horse was owned for pleasure, and the owner was not an employee.

2006

Campbell v. City of New York, 31 A.D.3d 594 (N.Y. App. Div. 2006)

Mounted policeman was injured when the horse he was provided bolted and collided with a car. Policeman sued under New York’s labor law, which required him to prove that the employer created a recognized habit in the workplace. The court of appeals held that the policeman met the burden because there had been three previous instances of unprovoked behavior involving this horse.

Jones v. St. Charles County, 181 S.W.3d 197 (Mo. Ct. App. 2006)

Motorist collided with a horse which had escaped from a pasture located on county property as a riding concession. Motorist died from her injuries and her representative sued the county under Missouri’s Stock Law (providing for strict liability for injury caused by an animal at large) and for negligence. The trial court granted summary judgment to the county. The court of appeals affirmed summary judgment on the Stock Law claim because the evidence was insufficient to show that the county was an owner or possessor of the horse. Ownership of the land on which the horse was kept, even with certain rights of general oversight, was insufficient “control” of the horse. Nor could the county be considered a joint venturer in the stable operation.

The court reversed summary judgment on the negligence count, however, it held there was sufficient evidence that the county officials had constructive notice of the dangerous deteriorated condition of the fence, such that the county would not be immune to suit under the sovereign immunity doctrine.

Olearnick v. Smith, 2006 WL 2089175 (Conn. Super. Ct. 2006)

Plaintiff sued for injuries resulting from a collision with an at-large horse. He alleged recklessness as well as negligence. The defendant moved to strike

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the recklessness count, and the court granted the motion because the factual allegations for recklessness were the same as for negligence.

Pennington v. AT&T, 202 F. App’x 880 (6th Cir. 2006)

Driver was killed when automobile collided with an escaped horse. The de-ceased’s estate settled with and released the property owner, but continued to pursue the telephone company as the owner of the easement on which the faulty fence was based. Summary judgment was granted to the telephone company, and affirmed by the court of appeals, on the basis that the release was broad enough to include the telephone company.

2005

Helton v. Kincaid, 2005 WL 1324729 (Ohio Ct. App. 2005)

Plaintiff was injured when her van collided with horses on the road. She sued the owner of the horses and the manufacturer of the corral from which the horses escaped. Plaintiff’s expert was served with a subpoena, and the plain-tiff objected to the production of the materials from plaintiff’s counsel on the basis of the work-product privilege. The trial court ordered the materials be produced, but the court of appeals reversed, holding that the privilege applied even to materials provided to an expert.

2004

Klobnak v. Wildwood Hills Inc., 688 N.W.2d 799 (Iowa 2004)

Motorist was injured when his vehicle collided with horses roaming the highway. His suit against the owner was dismissed because, the trial court reasoned, Iowa’s “fencing in” statute had been repealed, thus no duty existed to keep horses fenced in. The Iowa Supreme Court reversed, holding that the duty existed under common law duty to use due care as well by statute. Thus, the repeal of the statute did not affect the common law duty.

Longo v. Bell South, 885 So. 2d 1270 (La. Ct. App. 2004)

Horse rider was injured when his horse struck an unmarked utility pole support cable. He sued the utility company. Summary judgment in favor of the utility company was upheld by the court of appeals because there was no showing that the cable was owned by the utility company.

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Malloy v. Town of Colchester, 858 A.2d 813 (Conn. App. Ct. 2004)

Automobile driver was injured when his car collided with roaming horse. He sued the zoning officer and animal control officer, but a verdict was directed against him. The court of appeals affirmed on the basis that it was conjecture as to whether had the officers been performing their duties, this particular horse would not have been roaming at that time.

Wegner v. Parcel, 683 N.W.2d 126 (Iowa Ct. App. 2004)

Horse rider was injured when a pickup truck collided with her horse when she was crossing a highway bridge at night. The jury found the driver to be negligent, but also found the rider to be 51% negligent – a complete bar to recovery under Iowa law. On appeal, the rider challenged the appropriateness of instructing the jury that the rider had an obligation to maintain a proper lookout, take an alternate safe route, and make herself more visible. The court held that the instructions were proper.

2003

Chambers v. Davenport, 2003 WL 2294592 (Ark. Ct. App. 2003)

Woman was injured when her vehicle collided with a horse in the road. The woman testified in a deposition that she did not see anything wrong with the fence where the horse was stabled, although she contradicted this with a later affidavit. The trial court granted summary judgment based on the testimony. The appeals court reversed. Although the mere presence of a horse at large does not give rise to a presumption of negligence, the court ruled, there was an issue of fact as to whether the defendant knew the horse escaped on previous occasions.

Wilder v. Manchester, 113 S.W.3d 189 (Ky. Ct. App. 2003)

Plaintiff was injured when her vehicle collided with horses on the road. Plaintiff’s amended complaint against the land owner was dismissed on the basis that the statute of limitations had run. The Kentucky Court of Appeals affirmed, because limitations begins to run from the time the last PIP payment is made under the no-fault statue.

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2002

Granger v. Guillory, 819 So. 2d 477 (La. Ct. App. 2002)

Granger was injured in an accident caused by two horses that had escaped from their farm in which they were boarded, and had wandered onto the highway. The Grangers sued the owner of the horse, Scott Guillory. The trial court held Mr. Guillory negligent, even though there was no evidence that he had left the gate open or that any fence was in disrepair. The court of appeals affirmed, on the basis of the res ipsa loquitur doctrine. It held that the doctrine created a presumption of negligence, shifting the burden to Mr. Guillory to prove that there was no negligence.

Munns v. Swift Transportation Co., 58 P.3d 92 (Idaho 2002)

This case involved a collision between a car and a dead horse on the road, resulting in injury. The horse had been killed when a Swift Transportation truck hit it previously.

The horse had apparently wandered onto the road when some unknown person left the gate open where the horse had pastured. The injured party sued the owner and the boarder of the horse, as well as Swift Transportation. The owner was dismissed on summary judgment, but the case went to trial against the boarders and Swift Transportation. The jury apportioned 80% of the liability to Swift Transportation, 10% to the injured driver and 10% to the boarder.

Swift appealed on two bases. First, it complained that the jury instructions on per se liability based on the “leaving the scene of an accident” statute was improper. The court agreed, stating that the statute had questionable application to a truck-horse collision, and regardless, the intent of the statute was not to prevent a subsequent accident.

The second basis was the failure of the court to instruct the jury that it could apportion to the unknown person who left the gate open. The court of appeals agreed that such instruction should be given on a retrial.

Sill v. Burlington North Railroad, 87 S.W.3d 386 (Mo. Ct. App. 2002)

Mr. Sill was injured when the vehicle he was driving collided with a horse that escaped through a fence owned and maintained by the railroad compa-ny. He contended that the fence was defective or improperly maintained in violation of certain statutory standards. The trial court, however, dismissed the complaint, accepting the railroad company’s argument that there was no duty to a driver. The railroad company argued that the purpose of the fence was to protect animals from being injured on their railroad’s right of way, and

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therefore the plaintiff was outside the class of persons intended to benefit from the statutory duty. The court of appeals reversed, holding that there was the duty to those who sustain injuries outside of the railroad’s right of way. Such injury, the court held, was foreseeable.

2000

Corona v. Malm, 735 N.E.2d 138 (Ill. App. Ct. 2000)

Plaintiff’s vehicle collided with an escaped horse boarded by defendants. Summary judgment was granted to defendants based on Illinois’ Livestock Running at Large statute. The court of appeals held that the statute provides for strict liability unless the owner or keeper can prove that he had no knowledge that the animal was running at large and used reasonable care in preventing it. This had the effect of shifting the burden to the defendant. The case was therefore remanded. However, the plaintiff’s common law negligence claim was properly dismissed as the Act subsumes such claim.

Fuller v. Graham, 2000 WL 34410006 (Tex. App. 2000)

Plaintiff, who was injured when his vehicle struck a horse on a highway, re-ceived a verdict in his favor. The trial court issued a judgment notwithstanding the verdict for the defendant. The court of appeals upheld the judgment on the basis that the mere presence of a horse on a highway does not give rise to a presumption of negligence, and no other evidence of negligence was shown.

Williams v. City of Lufkin, 2000 WL 84903 (Tex. App. 2000)

Motorcyclist was killed when his motorcycle collided with a horse on a county highway. His family sued the county. The dismissal of the claim was upheld on sovereign immunity grounds. The court held that statutes that impose a duty on the county to control stray animals did not waive the county’s sovereign immunity.

1999

Atkins v. Stratmeyer, 600 N.W.2d. 891 (S.D. 1999)

Motorist and his wife were injured when they struck horses loose on the road. There was no direct evidence of how the horses got loose from their enclosure, but experts testified that the horses most likely escaped through an open gate. The jury verdict in favor of the plaintiffs was upheld on appeal. The court of appeals relied on the expert testimony and the fact that the defendants

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admitted that they were the last ones to check the gates, “so the logical and obvious conclusion which the jury reached was that [defendants] negligently left a gate open.”

Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999)

Woman was injured when her car collided with a horse that was standing on a “farm to market road.” The woman sued the owner of the horse. The lower courts held that a common-law duty existed to keep a horse off the roads, but the Supreme Court of Texas reversed, holding that no such common law duty existed and such a duty would not be created.

Lui v. Barnhart, 987 P.2d 942 (Colo. Ct. App. 1999)

Motorist collided with a horse that had escaped from its corral and wandered onto the street. A local ordinance provided that owners of animals “shall not fail” to keep their animals physically confined and restrained. At trial, the judge charged the jury that a violation of the ordinance was negligence. Apparently ignoring that instruction, the jury found that the owner was not negligent.

On appeal, the court held that a strict liability criminal ordinance did not cre-ate strict liability in tort. Further, the court held, that although the ordinance does set the standard of care, in this case it was not necessarily shown that the standard was violated. Although the horse was out of the corral and on the road, it does not necessarily mean that the owner failed to confine the horse. Comment: The logic of this decision is questionable. How could the horse be out of the corral if the owner had kept the horse confined? It seems that the appeals court (and the jury) read into the statute a “reasonable efforts” standard.

1998

Keller v. Merrick, 955 P.2d 876 (Wyo. 1998)

Soon after buying a horse which was represented to be gentle and trained, purchaser’s son was injured when the horse burst into full gallop. Purchaser sued to recover damages for the injuries, under a UCC warranty theory. The trial court granted summary judgment based on Wyoming’s Recreation Safety Act. The appellate court reversed, holding that the Act does not apply to the sale of a horse, and the purchaser presented sufficient evidence for the jury under a UCC breach of warranty claim.

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Supchak v. Pruitt, 503 S.E.2d 581 (Ga. Ct. App. 1998)

The Pruitts allowed their son to board a horse on their property. The horse escaped and collided with a car. The injured occupants of the car sued the Pruitts. The trial court granted summary judgment to the Pruitts. The court of appeals affirmed because under Georgia law, the keeper of a horse has no duty to keep an animal from running at large; only the owner has that duty.

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319

Personal Injury: Products Liability

PERSONAL INJURY: PRODUCTS LIABILITY

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321

Personal Injury: Products Liability

2001

Moreland v. Weaver Leather Goods Inc.,13 F. App’x 329 (6th Cir. 2001)

Plaintiff was severely injured when the single strap securing her saddle broke. Her suit was dismissed on a directed verdict. On appeal, the court affirmed, because the plaintiff had not proven that the strap was defective. Significant to the court was the fact that no one had previously heard of a similar accident.

1998

Tribe v. Peterson, 964 P.2d. 1238 (Wyo. 1998)

This case is a rare “products liability” cases involving a horse. Tribe attempted to recover for injuries received when he was bucked off a horse purchased from the Petersons. He claimed that the Petersons “guaranteed” that the horse would never buck, and that the sales brochure stated that the horse was “calm,” which created an express warranty.

The jury rejected his claim, and the appeals court affirmed. The court held that the jury was entitled to find that the “warranty” in the brochure was not breached, because even gentle horses may buck. Moreover, the jury was en-titled to find that no “guarantee” was ever given by the Petersons. The court concluded: “It appears a ‘no buck’ warranty is a hard sell to a Wyoming jury.”

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Private Associations

PRIVATE ASSOCIATIONS

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Private Associations

2001

Chovanes v. Thoroughbred Racing Ass’n, 2001 WL 43780 (E.D. Pa. 2001)

Veterinarian sued TRA and another veterinarian for allegedly disparaging him in several ways. The veterinarian’s claims under RICO and the Lanham Act were dismissed on several grounds. As for the Lanham Act claim, the court held that communications by TRA were not disseminated by plaintiff’s commercial competitors and were not sufficiently disseminated to the public.

New Jersey Thoroughbred Horseman’s Ass’n v. New Jersey, 791 A.2d 320 (N.J. Super. Ct. App. Div. 2001)

The New Jersey Thoroughbred Horseman’s Association, which was authorized by statute to receive a portion of pari-mutuel funds to use and distribute for programs to “aid horsemen,” sought to use funds to form a lobbying political action committee. The Racing Commission believed that such use was inap-propriate. The court held that under the governing trust instrument, the Asso-ciation’s use of the funds for lobbying was within the Association’s discretion.

2000

American Horse Shows Ass’n v. Ward, 718 N.Y.S.2d 593 (N.Y. Sup. Ct. 2000)

Ward was a member of AHSA. He pled guilty to criminal charges resulting from killing horses for insurance proceeds. The AHSA brought charges against Ward on that basis. Prior to the hearing, Ward resigned from AHSA, and did not appear at the hearing. The AHSA expelled Ward and ordered him not to participate or appear at show horse events. Ward continued to appear at horse shows and the AHSA sought an injunction from the New York Supreme Court. The court issued the injunction, despite Ward’s claim that AHSA had no authority over him as he had resigned. The court stated that due to his prior membership, Ward had agreed to be bound by the AHSA rules. In addition, the injunction was otherwise justifiable.

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1998

Robertson v. Tennessee Walking Horse Breeders’ and Exhibitors Ass’n, 1998 WL 382192 (Tenn. Ct. App. 1998)

Horse breeder was expelled from the Tennessee Walking Horse Breeders’ and Exhibitors’ Association (which registered Tennessee Walking Horses) and his horse registration privileges were suspended for registering a false pedigree for two horses. Breeder sued alleging wrongful expulsion and defamation. The trial court dismissed the suit, which was upheld by the court of appeals because the Association substantially complied with its disciplinary rules and gave the breeder fair notice and a fair opportunity to be heard.

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Prosecutorial Misconduct

PROSECUTORIAL MISCONDUCT

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Prosecutorial Misconduct

2000

U.S. v. Cheska, 202 F.3d 947 (7th Cir. 2000)

Cheska and Nuber were charged with insurance fraud. At the criminal trial, the prosecutor remarked in his closing statement that a witness had convicted 23 others, for which there was no evidence in the record. The court of appeals held that a grant of a new trial for this prosecutorial misconduct was not an abuse of discretion.

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RACING

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2018

Rojas v. Pennsylvania State Horse Racing Comm’n, 2018 WL 1102584 (Pa. Comm. 2018)

Trainer Eduardo Rojas received a notice of ejection permanently ejecting him from Penn National Race Course based on a prescription drug violation. He sought a hearing before the Commission. The Commission upheld the suspension based on the theory that Eduardo Rojas was engaged in a “com-mon business enterprise” with his spouse, Murray Rojas, who was the actual medication-rule violator, based on numerous transfers of horses between them. On appeal to court, the court held that the hearing notice did not apprise Rojas that Rojas would be charged in this manner, and thus violated his due process rights. The court remanded for a new hearing.

2017

Annunziata v. New Jersey Racing Comm’n, 2017 WL 4390266 (D.N.J. 2017)

Annunziata applied for a license as a stable worker, but received a letter from a steward stating he would recommend the license be denied for financial irresponsibility. He sued in federal court for violation of his civil rights. The court dismissed the suit because the Racing Commission had not, in fact, taken formal action to deny the license, thus there was no “case of controversy” on which to base jurisdiction.

Confederacion Hipica De Puerto Rico, Inc. v. Confederacion de Jinetes Puertorriquenos, Inc., 2017 WL 5197224 ___ F. Supp. 3d ___ (D.P.R. 2017)

Jockeys, belonging to a jockey association, engaged in a strike for higher mount fees. The owners and tracks sued for violation of the Sherman Antitrust Act on the basis that the strike was a “concerted refusal to deal.” They sought a preliminary injunction against the strike. The jockeys asserted that they were not subject to the antitrust laws because they acted as a labor union.

The court rejected the jockey’s argument and granted the injunction. It held that the jockeys were independent contractors, thus were not acting as a labor union. Thus, there was a high likelihood that the plaintiffs would succeed on the merits.

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Ecurie Reve Avec Moi, Inc. v. New Jersey Racing Comm’n, 2017 WL 6403001 (D.N.J. 2017)

Racehorse owners sued the New Jersey Racing Commission and its executive director for violating their due process rights when they suspended their horse and withholding purse monies. The court dismissed the claims against the Commission and the director in his official capacity based on absolute immunity under the Eleventh Amendment. The court denied the motion to dismiss the director in his individual capacity because the record, on a motion to dismiss, was not sufficient to determine if he had qualified immunity.

Jamgotchian v. Indiana Horse Racing Comm’n, 2017 WL 4168488 (S.D. Indiana 2017)

Racehorse owner Jerry Jamgotchian also brought his “claiming jail” chal-lenge to Indiana. He sued the Indiana Racing Commission asserting that the Commission’s rule that a claimed horse must remain racing only in Indiana for 60 days after being claimed violated the Commerce Clause. The court held that the rule clearly discriminated against interstate commerce, and thus was presumptively invalid. The court rejected the claim the claim that the rule was not protectionist and not a trade regulation. The court further held that Indiana had not shown a legitimate local purpose, other than protectionism, for the rule. “The [defendants] evince the type of economic protectionism that the dormant Commerce Clause is designed to prevent.”

In a footnote, the court distinguished the Kentucky Supreme Court’s ruling in Jamgotchian v. Kentucky Horse Racing Comm’n, 488 S.W.3d 594 (Ky. 2016).

Jamgotchian v. State Horse Racing Comm’n, 269 F. Supp. 3d 604 (M.D. Pa. 2017)

Racehorse owner Jerry Jamgotchian brought his “claiming jail” challenge to Pennsylvania. He sued the Pennsylvania Racing Commission asserting that the Commission’s rule that a claimed horse must remain racing only at the track where claimed for the duration of the meet violated the Commerce Clause. The court first held that Jamgotchian had standing, and could bring a claim for injunctive relief against the state under 42 USC § 1983. But the court awarded summary judgment to the state, recognizing that the effect on commerce was incidental and the rule did not explicitly discriminate between in-state and out-of-state tracks. The rule was consistent with the state’s purpose of upholding the integrity of horse racing in Pennsylvania. The court also rejected Jamgot-chian’s argument that the rule violated the unconstitutional conditions doctrine because the rule “does not require owners who claim horses in claiming races to only race those horses at Pennsylvania tracks in perpetuity.”

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Moody v. Michigan Gaming Control Bd., 2013 WL 791628, 2013 WL 6196947 (E.D. Mich. 2013), remanded, 790 F.3d 669 (6th Cir. 2015), after remand, rev’d in part, 871 F.3d 420 (6th Cir. 2017)

Investigation led to search warrants by police against trainers and gamblers for harness-race fixing. The Michigan Racing Commission sought to suspend the trainers’ licenses. At the stewards’ hearing, the trainers invoked their Fifth Amendment privileges. However, they were suspended for failing to cooperate in an investigation, as their license application required them to do. The Racing Commission also refused to renew their licenses.

The trainers sought a preliminary injunction. The injunction was denied initially and again on reconsideration based on the failure to show an irreparable injury (the right to make a living being a monetary right) and because harm to others would result by allowing individuals who are subject to an administrative investigation to refuse to cooperate in that investigation.

In the second decision, the court addressed the cross-motions for summary judgment. The court held that the claims against the state or its officers in their official capacity for monetary damages were barred by Eleventh Amendment immunity. With regard to the claims against the defendants for violating their civil rights, the court held that the defendants were entitled to qualified immu-nity. The substantive due process claim failed because no protected property right was deprived, the court finding that “harness racing is not one of life’s occupations.” Further, a mere expectation of a license is not a property right. The procedural due process claim failed because the trainers were afforded a hearing. The court thus granted the defendants’ motion for summary judgment.

In the initial appeal to the Sixth Circuit, the court of appeals affirmed that plaintiffs had received due process with respect to their license suspension, but remanded because there was an issue of fact as to whether they received due process in connection with their exclusion from the track. The court fur-ther held that the Fifth Amendment rights of the plaintiffs were violated by requiring them to answer potentially self-incriminating questions, but left it for the district court to determine if the right to be offered immunity against self-incrimination was clearly established at the time of the violation.

On remand the district court denied motions for summary judgment, even though it was determined that the plaintiffs received a post-exclusion hearing.

On the next appeal, plaintiffs argued that even though they received a post-ex-clusion hearing, their due process rights were nevertheless violated because the hearing was not timely. The court agreed that a hearing 2½ years after the exclusion was not timely, and thus a clearly-established right was violated. The court of appeals also held that the district court’s grant of qualified im-munity was erroneous, and therefore the Fifth Amendment right to refuse to self-incriminate was clearly established.

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Motion v. Kentucky Horse Racing Comm’n, (Franklin Circuit Ct. Ky. 16-CI-1195 Aug 18, 2017)

KITTEN’S POINT, trained by Graham Motion and owned by George Straw-bridge, tested positive for 2.9 ng per ml of methocarbamol in her serum, above the permitted threshold of 1.0 ng/ml. Motion received a short suspension and small fine, and the purse was ordered forfeited, on steward’s ruling. After a hearing before a hearing officer, the Kentucky Horse Racing Commission upheld the ruling.

Motion and Strawbridge appealed to the Franklin Circuit Court, challenging the regulation and the evidentiary rulings.

The court first agreed with the assertion of Motion and Strawbridge that the threshold regulation for methocarbamol, a therapeutic medication permitted to be used with a 48-hour withdrawal time, was arbitrary and capricious because it was not based on scientific evidence, having been merely adopted from the RMTC’s guidelines. The RMTC had set the unreasonably low threshold despite its own study that even up to 20 ng/ml would have no effect on race performance, and such low amounts could even result from environmental contamination. The court concluded: “The promulgation of the methocarbamol threshold without the reinforcement of scientific evidence exceeds the scope of the KHRC’s authority provided by its enabling act.”

The court also criticized the refusal of the hearing officer to admit evidence concerning the motivation for establishing such an unreasonable threshold, rejecting the Racing Commission’s assertion that the issue had been heard numerous times before. The court stated that this denied Motion and Straw-bridge their procedural due process rights: “If the citizens of Kentucky cannot challenge regulations they believe to be founded upon political and baseless motives, then no remedy exists to check the agency’s power. An agency must allow proof regarding the perceived arbitrary and capricious nature of the regulation.”

The court further held that the ruling imposing penalties and forfeiture lacked substantial evidence because the Racing Commission did not establish the propriety the penalties because it did not show an effect on the racing perfor-mance of the horse: “[T]he imposition of a penalty on Petitioners without the proffer of proof as to the rationale behind the penalty not only exceeds the KHRC’s power but also does not constitute the establishment of a violation of [the regulation].”

Finally, the court struck the trainer “absolute insurer” rules as unconstitution-al. It recognized that the “rebuttable presumption” rule had been previously upheld, but determined that the recently-promulgated absolute insurer rule (which does not permit any rebuttal) is a denial of due process.

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In a second amended complaint the Mumaws made allegations against Thistle-down and its stewards. The court dismissed the claims against the individuals in their official capacities based on Eleventh Amendment immunity. Although the injunction claim was not barred, it was also dismissed because there was no showing of a deprivation of a constitutional right. According to the court, due process did not require a pre-deprivation hearing, and the Ohio statute “provides multiple levels of review sufficient to ensure Plaintiffs an opportunity to be heard.” The court also held that the individual defendants in their individual capacities with regard to scratching their horse were entitled to qualified im-munity even if a constitutional violation had occurred. The scratch was only for a single race (the right to run in a single race is not a “clearly established constitutional right”), and there was not sufficient evidence that this caused ongoing harm because plaintiffs were free to race elsewhere, and plaintiffs did not show that the stewards’ action was unreasonable.


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Ohio Harness Horsemen’s Ass’n v. Northfield Park Ass’n, 2017 WL 6374089, ___ F.3d ___ (S.D. Ohio 2017)

Harness-racing horsemen’s group sued operators of tracks and racinos to pre-vent it from taking what it believed were retaliatory actions when it charged the operators misused purse accounts. During the suit, an agreed order was tendered into prohibiting certain actions by the track operators. The court en-tered the order. The track operators later sought relief from the agreed order, which the court granted because it believed it would not have independently ordered the requirements in the agreed order, and an agreed order was subject to alteration just like any other order of the court.

SCF, Inc. v. Florida Thoroughbred Breeders’ Ass’n, Inc., 223 So. 3d 459, 227 So. 3d 770 (Fla. Dist. Ct. App. 2017)

Leading Ocala thoroughbred breeding farm sought to challenge the Florida Thoroughbred Breeders’ Association’s 2016 plan for breeders’ award distribu-tions. An ALJ ruled that the farm had no standing to challenge the plan. The court of appeals disagreed, and held that the farm, which regularly received awards, had a sufficient economic interest to give them standing.

Simon v. Taylor, 252 F. Supp. 3d 1196 (D.N.M. 2017)

In the 2008 All American Futurity, a major Quarter Horse race with a winner’s purse of $1 million, STOLIS WINNER barely beat JET BLACK. After the race, STOLIS WINNER tested positive for caffeine, a Class 2 prohibited sub-stance in New Mexico. The level was very low (the LSU-tested split sample showed 84.2 ng/ml).

The stewards’ ruling resulted in the disqualification of STOLIS WINNER and the redistribution of purses. The trainer and owner appealed the decision to the Commission, which appointed a three-judge panel to conduct the hearing. The owners of JET BLACK were not permitted to participate in the hearing. The panel recommended that the Racing Commission reverse the stewards, and the Commission adopted that recommendation.

The owners of JET BLACK sued the owners and trainer of STOLIS WINNER, and the New Mexico Racing Commission (and other state individuals), in

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federal court, alleging constitutional violations and common-law interference with a prospective economic advantage, as well as breach of contract and neg-ligence. Initially the court dismissed the claims against the Commission and stated defendants, but largely denied the motion to dismiss the claims against the owners and trainer (holding, for example, that the Commission regulations created an implied private right of action).

After discovery, defendants moved for summary judgment (plaintiffs moved for summary judgment on the interference claim). The court granted summary judgment to defendants on the intentional interference claim, holding that “the test results establish such a minuscule caffeine concentration in STOLIS WINNER’S urine that they do not amount to even a “scintilla” of evidence supporting the defendant’s intentional administration of caffeine to the horse with a purpose to interfere with the Plaintiffs’ prospective contractual rela-tions.” The court noted that caffeine is “commonly found in equine feeds and environments,” and thus the positives could have resulted from environmental contamination, leading to positives because post-race tests are “highly sensi-tive.” Moreover, the court took judicial notice that the level of caffeine detected could not affect the performance of a racehorse.

The court also dismissed the fraud claim, which was based on the implied representation that the horse complied with the rules. The court held that given the minuscule levels of caffeine there was no evidence that defendants knew STOLIS WINNER had ingested caffeine. Likewise the court dismissed the prima facie tort claim. The court also dismissed the negligence claim, holding that even if the drug regulations established a duty and standard of care, there could be no showing of injury or causation. Further, there was no duty under the regulations to guard against the presence of environmental contaminants, particularly given that the rules recognize an exception for such contaminants. Although the court seemed to recognize an implied private right of action under the New Mexico medication regulations, it also dismissed the claim, because the levels detected did not exceed the threshold for environmental contaminants under the New Mexico regulations.

2016

Carrillo v. Penn Nat’l Gaming, 172 F. Supp. 3d 1204 (D.N.M. 2016)

Quarter Horse trainer Arnoldo Carrillo had an unusually high number of horses injured during races. Sensitive to recent publicity about New Mexico racing, Zia Park, owned by Penn National, told Carrillo he could no longer race there. Several other New Mexico tracks followed this lead and summarily barred Carrillo. The stewards at Sunland Park scratched Carrillo’s horses.

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Carrillo filed a state court action against some of the tracks. The state court granted summary judgment to the tracks on the basis of the common-law right to exclude.

While that case was on appeal Carrillo brought a § 1983 action in federal court alleging constitutional violations by the tracks, the New Mexico Racing Commission, the Boards of Stewards of the various tracks, and the stewards themselves. The defendants moved to dismiss on various grounds.

The tracks moved to dismiss on the grounds of res judicata (the “claim pre-clusion” variety) based on the prior determination of the state court. The court granted that motion because the claims could have been litigated in the state court action because they were based on the same events giving rise to the claims in the state lawsuit.

Other defendants moved to dismiss on the basis of res judicata/collateral es-toppel (the “issue preclusion” variety). The court denied that motion because the claims against them were not fully litigated in the state lawsuit (to which they were not parties).

The Racing Commission and Boards moved to dismiss the § 1983 action because they were not “individuals” and thus the Act did not apply to them. The court did not grant the dismissal, because there was some precedent that non-individuals are proper defendants for purposes of injunctive relief.

The stewards moved to dismiss on the basis of qualified immunity. The motion as to the stewards of three of the tracks was granted. The basis was that prece-dent was unclear as to whether exclusion form a track was a clearly established constitutional right and whether they were acting under color of state law. It was denied as to the stewards of Sunland Park, because they summarily merely scratched Carrillo’s horses.

De La Torre v. California Horse Racing Bd., Los Angeles, CA, Superior Ct. No. BS 154412 (March 10, 2016) (tentative opinion)

De La Torre was a licensed owner in California, racing Quarter Horses pri-marily at Los Alamitos Racetrack. Los Alamitos adopted a “house rule” which prohibited any racing if any amounts of clenbuterol or albuterol were detected through hair follicle testing. The California Horse Racing Board’s rule was less stringent (allowing clenbuterol as long as it does not affect a race or is detectable in a urine sample), but the CHRB approved the house rule regardless. When one of De La Torre’s horses tested positive, it was disqualified from a race with a $175,000 purse.

De La Torre sought a mandate from the Los Angeles Superior Court, arguing that the house rule conflicted with the state rule. Even though the court recog-nized that the CHRB’s interpretation was entitled to great weight, it held that

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the house rule did conflict with the state rule because it was more restrictive. Specifically bothersome was the testing under the house rule, as hair follicle testing had no regulatory control. The court rejected the argument that the house rule was nevertheless enforceable because the trainer agreed to the rule by signing an agreement as a condition of racing.

Jamgotchian v. Kentucky Horse Racing Comm’n, 2014 WL 495575 (Ky. Ct. App. 2014), aff’d, 488 S.W.3d 594 (Ky. 2016)

The Kentucky Horse Racing Commission promulgated a regulation requiring a claimed horse to race at the meeting in which it was claimed until the close of entries in that meeting. Because this prohibited racing a Kentucky-claimed horse from temporarily racing outside Kentucky, horse owner Jamgotchian filed a declaratory judgment action challenging the regulation as unconstitutional under the Commerce Clause. The trial court held that the regulation did not violate the Commerce Clause.

The decision was upheld on appeal to the Kentucky Court of Appeals. The court of appeals first ruled that Jamgotchian had standing and the issue was ripe for review. The court of appeals held that the regulation was part of the overall pervasive authority of the Racing Commission to regulate racing, and thus was a traditional government function. The regulation was not discrim-inatory because it applied to Kentucky as well as non-Kentucky residents. Finally, the regulation had an insignificant and merely incidental burden on interstate commerce, partially because several other racing jurisdictions have similar regulations.

The Kentucky Supreme Court took discretionary review of the case. The Court first addressed the Racing Commission’s repeated assertion that no jurisdic-tion existed because there was no “actual controversy” entitling Jamgotchian to a declaratory judgment. It held that Jamgotchian was an eligible claimant because he was affected by the eligibility rules for racing.

The Court then engaged in a relatively extensive analysis of the “dormant Commence Clause” particularly as construed by the U.S. Supreme Court in Dep’t of Revenue of Kentucky v. Davis. It noted that a discriminatory regulation is presumed invalid unless the state can demonstrate a legitimate purpose that cannot be adequately served in a non-discriminatory way. In applying this test, the Court first rejected the Commission’s position that the pervasiveness of state regulation rendered the matter to be one of a “traditional government function” and thus entitled to a low degree of scrutiny. Nevertheless, the Court held that the regulation was basically non-discriminatory because it is “not a trade regulation” and its “protectionist effect is negligible compared with its important racing benefits.” Moreover, the Court emphasized, the regulation is “knowingly and voluntarily agreed to by an owner seeking the advantages

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of a claiming race purchase…” The Court then searched for a purpose for the discriminatory regulation, and found that it had “some tendency to prevent disruption of the given meet through loss of claimed horses.” The Court noted that other states have similar “claiming jail” regulations, although it denied that it was endorsing “protectionist tit-for-tat” excuses that it realized did not pass Commerce Clause analysis. The Court further purported to find some solace in its conclusion that the regulation did not violate the Commerce Clause by noting that we are talking about a sport, and one involving gambling, and not a product or service “such as baitfish,.. cantaloupe, … natural gas,… or waste processing….” The Court then rejected the assertion that the regulation was like an embargo by a state, which is routinely invalidated under the Com-merce Clause, because the effect is “temporary” and again, it is a “voluntari-ly-agreed-to sales transaction” by the affected participant.

Lococo v. Kentucky Horse Racing Comm’n, 2016 WL 446668 (Ky. Ct. App. 2016)

Veterinarian sought names and addresses of licensed owners from the Racing Commission. After being denied he sued under the Open Records Act. The trial court held that the personal privacy exception applied because he was seeking to collect debts from those owners, not to serve the public good. He appealed, but died during the pendency. The court of appeals dismissed the appeal on the basis that the claim did not survive the veterinarian’s death.

Pena v. New York State Gaming Comm’n, 40 N.Y.S.3d 665 (N.Y. App. Div. 2016)

Harness-race trainer stabled his horses in New Jersey but also raced in New York. His horses did not test positive for prohibited substances. However, New York obtained the veterinary records from the trainer’s New Jersey veterinarian. The records consisted of billing entries.

Based on the records, the trainer was charged with multiple violations of the prohibition against administering prohibited substances, and suspended and fined. At the administrative hearing, the hearing officer admitted the records into evidence, although they were uncertified and hearsay. Based on the records, he and the Board upheld the penalties.

On appeal, the court annulled the Board’s decision. The court was not critical that uncertified veterinary records were considered. Instead, what bothered the court was that the dates on the bill were only assumed to be the dates sub-stances were administered to the horses. That supposition was too unreliable to be considered substantial evidence.

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2015

Beaver v. Ohio State Racing Comm’n, 2015 WL 1641409 (Ohio Ct. App. 2015)

Horse tested positive for methylprednisolone, was disqualified by the stewards, and the owner/trainer was ordered to return the purse and pay a $500 fine. The hearing officer and commission upheld the sanctions. The presence of the steroid was undisputed, but the owner/trainer made a constitutional challenge based on selective enforcement of the regulation. The court recognized that such selective enforcement of a regulation can give rise to a due process chal-lenge if invidious motives or bad faith is shown, but in this case the owner/trainer did not show he was treated differently than other race winners during the period in question and did not show any invidious motives.

In the Matter of License Application of El Deeb, 2015 WL 5197012 (Minn. Ct. App. 2015)

El Deeb was denied an owner’s license by the Minnesota Racing Commission after a hearing. At the hearing, evidence was presented that El Deeb had mis-treated horses, had lied on a previous application, had been active as an owner without a license. El Deeb’s evidence largely consisted of his own testimony. He appealed the denial on the basis that the decision was arbitrary and capricious.

The court of appeals affirmed the denial. It stated that El Deeb had been given notice and reasonable opportunity to be heard and present evidence. Further, the Commission’s determination was based on substantial evidence, noting “It is difficult to imagine a less compelling assertion of insufficient evidence than El Deeb’s.”

March v. Kentucky Horse Racing Comm’n, 2015 WL 3429763 (Ky. Ct. App. 2015)

Horse named ETHICAL LAWYER was disqualified from its first place finish upon a careless riding foul determined by the stewards. The owner and trainer of ETHICAL LAWYER filed exceptions, and then appealed to the circuit court alleging that the stewards’ action was without authority and his due process rights were violated. The circuit court, in an opinion adopted by the court of appeals, held that a decision of the stewards as to such an infraction could not be appealed, and the owner/trainer had no standing in any event because non-award (as opposed to forfeiture) of the purse did not give him standing. The due process violation claim was likewise rejected because an interest in purse money was not a protected property interest.

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2014

Appalachian Racing, LLC v. The Family Trust Foundation, 2012 WL 2160190 (Ky. Ct. App. 2012), 423 S.W.3d 726 (Ky. 2014)

Public-interest organization challenged Kentucky Horse Racing Commission’s regulations allowing video-based wagering on historic races. The trial court held that the organization had standing, but that the regulations were valid. It further denied the organization the opportunity to conduct discovery. The court of appeals agreed that the organization had standing and that the lower court had jurisdiction, but remanded for a more complete record.

The Kentucky Supreme Court granted discretionary review. The Court de-termined that a justiciable controversy existed because the foundation was a party and thus adverse interests existed. The Court agreed with the court of appeals that the determination of whether the regulations violated Kentucky’s statutory gambling prohibitions required further factual information. However, the Court held as a matter of statutory construction that the Racing Commission had statutory authority to regulate video-format historical races, because the enabling statute did not limit itself to live horse racing. It further held that the manner of betting met the definition of pari-mutual wagering, the only type of gambling permitted for horse racing. The Court, however, held that the Kentucky Department of Revenue’s regulation taxing the money wagered on the races exceeded its statutory authority.

Buck v. Kentucky Horse Racing Comm’n, 2014 WL 4628603 (D. Utah 2014)

Seller of bitless bridles sued the Kentucky Horse Racing Commission and its members in federal court alleging that they misled him into thinking bitless bridles were not prohibited in Kentucky, and not taking regulatory action to make them legal. The court dismissed the claim against the state and the members in their official capacities based on 11th Amendment immunity, and against the individual members based on lack of personal jurisdiction.

Cowans v. Ohio State Racing Comm’n, 11 N.E.3d 1215 (Ohio Ct. App. 2014)

Stewards suspended trainer and required return of purse after his winning horse tested positive for Ranitidine. He requested a de novo hearing and received one before a hearing examiner. The hearing examiner recommended suspension and loss of purse, but lifted much of his decision from a different case and thus it included much extraneous material. Although the trainer filed objections,

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the Commission adopted the recommendations. The trainer unsuccessfully appeals to the Court of Common Pleas and then the Ohio Court of Appeals.

After discussing the limited role of the appellate courts, the court of appeals addressed the trainer’s numerous claims of error. It rejected the assertion that the errors in the hearing examiner’s report were fatal because there was no evidence that the Commission based its decision on the erroneous portions. The court rejected the claim that the lab director was a non-credible witness, and also rejected as error the fact that the lab director was never formally recognized as an expert. The court also rejected as error the fact that the administrative order did not follow the mandates of the statutory requirements. The court further rejected the assertion that in reality the requirement of forfeiture of the penalty was discretionary rather than mandatory, arguing that it was inappropriate in this instance where the medication was not performance-enhancing. However, the court did agree that the rules permitting the commission to assess costs were unenforceable as they were not authorized by statute.

Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723 (7th Cir. 2014)

Casinos filed a RICO suit alleged that Illinois Governor Blagojevich signed a 2006 bill and a 2008 bill, providing for a casino fund for racetracks, into law as a result of bribery by members of the horseracing industry. The district court granted summary judgment because there was no showing of proximate cause of the casinos’ injury. On appeal, the Seventh Circuit affirmed as to the signing of the 2006 act and reversed as to the 2008 act. It held that the record revealed considerable evidence that a quid pro quo arrangement existed between the governor and the horseracing interests.

Florida Quarter Horse Track Ass’n v. State, 133 So. 3d 1118 (Fla. Dist. Ct. App. 2014)

Horse owner challenged racing authority’s order treating a certain style of barrel match racing as a form of Quarter Horse racing subject to licensing because it was in actuality an unpromulgated “rule”. The court of appeals upheld the determination of the ALJ that this “policy” was in effect an unadopted rule, and therefore invalid.

Ford v. New York State Racing and Wagering Bd., No. 2020-0303 (S. Ct. Schenectady Co. 2011), rev’d in part, 967 N.Y.S.2d 453 (N.Y. App. Div. 2013), aff’d 24 N.E.3d 1090 (N.Y. 2014)

Standardbred industry representatives challenged New York’s “Out-of-Com-petition Testing” Rules. The trial judge ruled that the Rules were invalid on

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several bases: (1) exceeded scope of rule-making; (2) arbitrary and capricious; (3) violation of privacy interests.

The Appellate Division reversed on all of these points. Citing testimony of Dr. George Maylin, the director of the drug testing and research program, the regulations had a rational basis and were not arbitrary or capricious. Nor did it infringe on privacy, as horse farm owners housing racehorses have “a reduced expectation of privacy due to the fact that horse racing is a highly regulated in-dustry.” The court did, however, uphold the invalidity of one regulation because it was inconsistent with the withdrawal-time regulations for some substances.

The Court of Appeals of New York reviewed the case, despite substantial modifications to the New York Rules in the interim, and affirmed. Like the Appellate Division, it relied substantially on the opinion of Dr. Maylin that out-of-competition testing is necessary to prevent certain forms of doping. It also noted that regulators in other states have followed suit, specifically Ken-tucky, New Jersey, Indiana, and New Mexico. It rejected the claim that the Rules infringed on privacy rights, noting that those rights have been relinquished by entering into “commercial arrangements pursuant to which race horses owned or trained by [the Commission’s] licensees are stabled on their property…”


Trainer was accused of sexually harassing females at Philadelphia Park Race-track. The Racing Commission issued a Notice of Ejection, ejecting him from the grounds for ten years. After a hearing, the ejection was affirmed. On appeal, the trainer argued that the Commission had no authority to eject him because the conduct was unrelated to racing. The state court held that the Commission had the authority to eject him, given the necessity of controlling behavior at a licensed facility. The state court also rejected the contention that the hearing officer should have admitted evidence that criminal charges had been dropped. Guerro v. Dep’t of Agriculture, 2013 WL 6578970 (Pa. Cmwlth. 2013). After losing on his state court appeal, the trainer brought a civil action against the track and the horsemen’s association, claiming antitrust violations and civil rights violations under § 1983. His theory was that he was by far the most successful trainer at the track, and other envious trainers conspired to trump-up the charges to remove him as a competitor, causing him serious financial loss. The court sustained a motion to dismiss. It held that the claims were barred by the Rooker-Feldman doctrine because the state court had already decided the propriety of his ejection. Further, the court held that the antitrust claim failed to state antitrust injury or the relevant market. The court also ruled that the trainer failed to allege concerted conduct necessary to show a contract, combination or conspiracy, noting that the Racing Commission found that the horseman were not involved in the decision to eject. The civil rights claim failed because the track was not acting on behalf of the state, and the official

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who ejected him, who was a peace officer for the state, was not acting as a peace officer for the state.

Gulotta v. New Jersey Racing Comm’n, 2014 WL 4375668 (N.J. Super. A.D. 2014)

Harness horse owner was found to have a positive for a prohibited drug at an Ontario track. Without a hearing the horse was declared to be ineligible for a period of 90 days. While an appeal was pending in Ontario, the New Jersey authorities applied a reciprocity rule and enforced the suspension in New Jersey. The Commission actually allowed the horses to race, but then sought forfeiture of the purses. The owner of the horse appealed on several grounds, including violation of due process.

The New Jersey court, citing Barry v. Barchi, recognized that a substantial property right was involved. The court criticized the automatic application of reciprocity and reversed the Racing Commission’s ruling declaring the horse ineligible. The court also criticized the Commission for allowing the horses to race “without giving the owners any prior notice of its intention to forfeit the purses in the event the owners did not prevail on appeal.” The court em-phasized that the horses were not racing with prohibited substances, but were suspended solely as a punishment. Finally, the court severely criticized the Commission’s delay in determining whether to adopt the ALJ’s ruling, noting that the Commission basically flouted the plain directives of the legislature in so doing.

Mullins v. California Horse Racing Bd., 2014 WL 1046104 (Cal. Ct. App. 2014)

Trainer Jeff Mullins sued the California Horse Racing Board for violation of his civil rights in connection with disciplinary proceedings the Board was taking. After a hearing, a judgment and order of administrative mandamus was entered in favor of Mullins and the Board appealed. The appeal was dismissed because the judgment did not dispose of all claims, and thus the appeal was premature.

PNGI Charles Town Gaming, LLC v. West Virginia Racing Comm’n, 765 S.E.2d 241 (W. Va. 2014)

After the court’s decision in PNGI Charles Town Gaming, LLC v. Reynolds, 727 S.E.2d 799 (W.Va. 2011), the West Virginia Racing Commission promulgated rules concerning ejection of participants from tracks. A track owner challenged the rule that an ejected person had a right to a hearing and that the track had the burden of proving the person acted improperly. The basis of the challenge

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was that the rule was promulgated without legislative approval, which approval was required if a rule is substantive rather than merely procedural. The trial court upheld the rule, and the court of appeals affirmed. It held that the burden of proof is a procedural matter.

State ex rel. Loontjer v. Gale, 853 N.W.2d 494 (Neb. 2014)

The Nebraska legislature passed a regulation to change the Nebraska Con-stitution to allow wagering on video racing. Its placement on the ballot was challenged on the basis that it violated the “separate-vote” provision of the Nebraska constitution because it included both a permitting of the wagering and the appropriation of the tax revenue from it. The Nebraska Supreme Court agreed, and enjoined the placement of the proposed amendment on the ballot.

U.S. v. Webb, 24 F. Supp. 3d 432 (M.D. Pa. 2014)

Horse trainer was caught preparing to inject a race horse before the race, and with a cache of syringes. He was indicted by a federal grand jury under two counts: Count 1, attempting to commit wire fraud, and Count 2, violation of the Travel Act.

The district court dismissed the indictment. It held that the indictment did not sufficiently allege wire fraud. Of course, wire transmission was not used by the defendant. The government argued that the wires were used by pari-mutuel bettors from simulcasting facilities. But the court noted that the government did not show how betting was affected by the doping of the horse.

With regard to Court 2, the court noted that the Travel Act required interstate travel or use of an interstate facility in the unlawful activity. The doping did not meet that requirement, even if horse racing had interstate aspects generally. In effect, the court agreed with the defendant that federal prosecutors were trying to turn a state law misdemeanor into a federal felony.

2013

Adamo v. Dillon, 900 F. Supp. 2d 499 (M.D. Pa. 2012), aff’d 539 F. App’x 51 (3d Cir. 2013)

Adamo, a licensed trainer, and Gill, a licensed owner, were ordered ejected from Penn National because of concerns relating to a potential jockey’s boycott. No pre-ejection hearing was held. There was no claim that they violated any racing regulations; only that their presence was inconsistent with the orderly conduct of the race meeting. Adamo appealed promptly, Gill did not. Neither

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received a post-ejection hearing. Adamo later received a demand that he appear at an interview. When he did not attend, his license was summarily suspended.

Adamo and Gill sued the officials involved in federal court under 42 USC § 1983 for violation of their due process rights. The court conducted a bench trial, after which the officials moved to dismiss based on qualified immunity. Despite the fact that the officials had not raised this as a defense at any previ-ous point, the court granted the motion. The district court held that qualified immunity existed because no clearly established statutory or constitutional right was violated. As for the pre-ejection suspension without a hearing, the court accepted the need of the officials to act quickly. As for the lack of a post-ejection hearing, the court excused the lack of a hearing with regard to the trainer because the trainer and the racing authorities were attempting to resolve the matter. As for the owner, he failed to appeal in time to avail himself of the hearing procedure.

With regard to the trainer’s suspension, the court noted that the racing officials were acting in accordance with the regulation, relying on a previous decision of the Pennsylvania state court.

The court of appeals affirmed, agreeing with the district court that the late assertion of qualified immunity did not prejudice the plaintiffs. It further held that Gill was not deprived of procedural due process because Gill failed to avail himself of the procedure for a hearing after an ejection.

Balmoral Racing Club, Inc. v. Churchill Downs, Inc., 953 F. Supp. 2d 885 (N.D. Ill. 2013)

Balmoral entered into an agreement with Youbet.com to provide advance de-posit wagering. Subsequently, Youbet was acquired by Churchill Downs, which had a competing service. Balmoral charged that Churchill Downs breached the agreement by not supporting Youbet. Churchill claimed Balmoral did not support its application for renewed licensing. Both sides moved for summary judgment. The court denied the motions, holding that there were factual dis-putes as to the breach and the damages.

Beckwith v. Sabini, 962 N.Y.S.2d 809 (N.Y. App. Div. 2013)

Harness driver and trainer was fined $1500 and suspended 45 days for a kicking violation, having been observed with his foot on the hindquarter of the horse. A Hearing Officer recommend the fine and suspension be affirmed by the Racing Board. The Board adopted the Hearing Officer’s findings and penalties. The driver/trainer filed an appeal in court, which affirmed the Board, holding that the Hearing Officer was not required to accept the contrary evidence presented at the hearing.

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Churchill Downs Inc. v. Trout, 979 F. Supp. 2d 746 (W.D. Tex. 2013)

Churchill Downs operates an online wagering website under the name of Twinspires.com. Texas passed a statute that only permitted wagering “inside the enclosure where a race meeting is authorized.” It later clarified that lan-guage to make it specific that wagers could not be made from Texas through the internet. The Texas Racing Commission informed Churchill Downs that it would begin enforcing the act. Churchill Downs responded with a suit for declaratory judgment that the statue violated the Commerce Clause.

Churchill moved for a preliminary injunction. The court denied the injunction. It concluded that the dormant Commerce Clause was not violated because the state was free to treat brick-and-mortar gambling differently than internet gambling as “they are two wholly different activities.” It also held that the act did not favor in-state economic interests over out-of-state interests because, again, Texas could treat the brick-and-mortar gambling and internet gambling as distinct activities. Further, despite some indication in the legislative history to the contrary, the court held that there was not a sufficient showing that Texas acted to advance a protectionist agenda aimed against out-of-state gambling companies.

Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d 722 (2011), on remand 2013 WL 4478741 (N.D. Ill. 2013)

Former Illinois governor and two Illinois race tracks allegedly participated in a “pay-to-play” scheme that resulted in the enactment of gaming laws requiring riverboat casinos to contribute to the “Horse Racing Equity Trust Fund.” The Funds support five horse-racing tracks in Illinois. The casinos sued the tracks and the former governor under RICO. The defendants’ motions to dismiss were denied in part. The plaintiffs moved to enjoin the distribution of funds to the tracks, which motion was denied.

On appeal, the Seventh Circuit certified the question of the governor’s im-munity to the Illinois Supreme Court. It affirmed the denial of the injunction as being barred by the Tax Injunction Act. 638 F.3d 519 (7th Cir 2011). The panel opinion was vacated in part on rehearing en banc.

On appeal, the court of appeals held that the Tax Injunction Act barred the claim of the casinos that the proceeds paid to the racetracks were subject to a constructive trust in their favor.

On remand the defendants moved for summary judgment on the RICO claim. The district court first rejected the argument that the defendants were immune from under the Noer-Pennington doctrine. But the court determined that al-though the complaint stated a RICO claim, there was no evidence of causation

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of damages because the causal link between the bribes to the governor and the passage of the legislation could not be shown.

Hawthorne Race Course, Inc. v. Illinois Racing Bd., 4 N.E.3d 117 (Ill. Ct. App. 2013)

Hawthorne Race Course appealed a decision by the Illinois Racing Commission distributing the Horse Racing Equity Trust Fund in a method they believed was inconsistent with the racing statutes. On appeal, the court held that Hawthorne had properly filed an administrative appeal, but ultimately upheld the Racing Commission’s distribution as consistent with the statute.

Hebert v. Louisiana State Racing Comm’n, 125 So.3d 609 (La. Ct. App. 2013)

Eight of the horses Hebert was training tested positive for benzonatate. After a Commission hearing, where he admitted administering the drug, Hebert receive a three-year suspension. He appealed to the district court, and moved to conduct discovery, contending that since the hearing he determined that benzonatate had not been listed as a prohibited drug at the time of his hearing. The district court permitted it, and the Commission sought a writ to reverse the decision. The court of appeals denied the writ. The court stated that the discovery sought was material, because it would show whether benzonatate was a banned substance, and would also be relevant to the severity of the punishment.

Hill v. New Jersey Racing Comm’n, 2013 WL 1830841 (N.J. Super. App. Div. 2013)

Harness horse was suspended and placed on a steward’s list in New Jersey after testing positive for a blood-doping agent. The USTA noted that fact in its database. Hill bought the horse and commenced racing it. It tested negative in Illinois. It was entered in a race at the Meadowlands after being determined to have been eligible. This determination was inadvertent due to the USTA having removed the steward’s list designation from its database. It was later tested and found negative, and removed from the steward’s list. However, the Judges disqualified the horse from the Meadowlands race and ordered the purse returned, because it technically was not eligible. An ALJ and eventually the Commission upheld the ruling.

On appeal, the court affirmed the Commission. It noted the error in the USTA database, but because the correct designation was present when Hill bought the horse, he was on constructive notice of the horse being on the steward’s list even though the designation had been removed by the time of the race.

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The fact that the horse had been retested in Illinois did not help either, as the removal from the steward’s list required re-testing in new Jersey.

Hooser v. Ohio State Racing Comm’n, 2013 WL 5963105 (Ohio Ct. App. 2013)

Hooser was a harness horse trainer. He was heard whipping one of his horses in the stall after the horse escaped. After a hearing before a hearing officer, the Ohio State Racing Commission revoked Hooser’s trainer’s license. Hooser appealed. The court of appeals determined that the determination was based on substantial evidence, and the court of appeals affirmed. The court ruled that hearsay evidence of reputation could be considered. The court rejected the challenge that the Commission had no jurisdiction because Hooser was engaged in non-racing activity, stating that Hooser’s actions “have a reasonable relationship to horse racing.”

Indiana Horse Racing Comm’n v. Martin, 990 N.E.2d 498 (Ind. Ct. App. 2013)

The Indiana Horse Racing Commission required the executive director of the Indiana Thoroughbred Owners and Breeders Association to be licensed because his activities constituted “participation in racing.” The trial court held that he was not required to be licensed but the court of appeals reversed. The court stated that although the statute did not define “participation in racing”, that the broad regulations which defined it to include the activities of the executive director was within the agency’s power. Because the executive director had direct access to horses and their owners thorough the Association’s sale of horses that were likely to race, he was a participant in racing.

LoCastro v. Cannery Casino Resorts, LLC, 2013 WL 1748347 (W.D. Pa. 2013)

Former horse owner and trainer was ejected from casino and banned from racing at the adjacent track, the Meadowlands, due to disruptive actions at the poker table. He sued the Meadowlands alleging violation of the Americans with Disabilities Act, claiming he was discriminated against because of his bipolar disorder. The court held that he sufficiently pled a claim under the ADA because his Social Security disability evidenced his disabled status. He also asserted a claim for violation of his constitutional rights under 42 USC § 1983. The claim was dismissed because the action of the Meadowlands did not constitute state action. The handling of funds for the state by the Mead-owlands was insufficient state action.

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Lormand v. Louisiana State Racing Comm’n, 115 So. 3d 1271 (La. Ct. App. 2013), and Agilar v. Louisiana State Racing Comm’n, 116 So. 3d 1029 (La. Ct. App. 2013)

Trainers were fined and suspended after horses they were training tested pos-itive for dermorphin. They appealed, contending, in part, that the requirement of testing a split sample was violated because only one referee laboratory was licensed to test a split sample, so they had no choice of laboratories. The court rejected this, and upheld the penalties.

Skywak v. California Horse Racing Bd., 2013 WL 6685789 (Cal. Ct. App. 2013)

After a race, a horse tested positive for clenbuterol. The trainer was suspended and fined, even though he did not have any role in administering the clenbuterol (it was administered by a groom). The court upheld the penalties under the regulation that made the trainer the absolute insurer of the horse’s condition. The court reiterated that such a rule was necessary for the integrity of racing, and that the trainer “should address his policy-based objections to the appro-priate legislative rulemaking bodies.”

Stewart v. Kentucky Horse Racing Comm’n, 2013 WL 1003534 (Ky. Ct. App. 2013)

A search of a trainer’s barn uncovered a vial of cobra venom, a prohibited substance under Kentucky’s Thoroughbred racing regulations. The veterinarian admitted that the vial belonged to him. A search of the veterinarian’s vehicle revealed vials of carbidopa and levodopa. The veterinarian was suspended by the stewards for four years for the cobra venom, and one year for the carbidopa and levodopa because they were substances that could endanger the welfare of a horse. After an evidentiary hearing, the Racing Commission affirmed the suspension.

The veterinarian sought review in court. The circuit court reversed the one-year suspension for levodopa and carbidopa, but affirmed as to the four-year suspension for the cobra venom.

The veterinarian and Racing Commission appealed. The Racing Commission sought to dismiss the appeal based on the failure to notify the attorney general of a constitutional challenge, as required by statute. The court rejected that challenge because effective notice to the attorney general had been given.

The veterinarian challenged the suspension for cobra venom on the basis that the regulation was unconstitutionally void for vagueness as applied to him.

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Because snake venom was a permitted under the Standardbred regulations in effect at the time, the court of appeals agreed that the Thoroughbred regulation prohibiting it was void for vagueness and resulted in arbitrary enforcement.

The court then upheld the circuit court’s reversal of the suspension for the levodopa and carbidopa as not based on substantial evidence that the substances could endanger the welfare of a horse.

Veitch v. Kentucky Horse Racing Comm’n, 2013 WL 5765130 (Ky. Ct. App. 2013)

Veitch, the Chief Steward for the Kentucky Racing Commission, was charged with violating racing regulations concerning duties of stewards when he allegedly did not take sufficient action to prevent a horse from racing. The hearing officer determined that Veitch was not credible and had violated the regulations, and recommended he be suspended for a year.

Veitch appealed to the decision to circuit court, which upheld the decision. He then appealed to the Kentucky Court of Appeals. Veitch argued that the regulations he was charged with violating were void for vagueness because they did not specify actual prohibited acts. The court rejected this argument, because courts are lenient with vagueness when no criminal penalty or first amendment issue is involved.

Veitch next argued that the Racing Commission’s order violated equal protec-tion and due process. The equal protection claim was rejected. However, the court held that the charges of pre-race violations were based on insufficient evidence, because nothing Veitch was told prior to the race called into question the health and well-being of the horse.

2012

ACRA Turf Club, LLC v. Zanzuccki, 2012 WL 2864402 (D.N.J. 2012)

When New Jersey first passed its off-track wagering act in 2002, two organi-zations acting together through a participation agreement were awarded the rights to open the wagering facilities. However, due to their slow progress, the New Jersey legislature amended the act in 2011. The organizations sought to enjoin the enforcement of the amendments. On a motion for a preliminary injunction, the court held that the organizations made a showing of likelihood of success on the merits because the amendments constituted a violation of the Commerce Clause and the Takings Clause of the Constitution, but denied the motion without prejudice because the state was delaying enforcement and therefore there was no immediate irreparable harm.

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Arlington Park Racecourse, LLC v. Illinois Racing Bd., 980 N.E.2d 72 (Ill. App. Ct. 2012)

Arlington appealed from a trial court’s affirmance of the racing board’s allo-cation of the Horse Racing Trust Fund, which was the fund created by taxing casinos for the benefit of horse racing. The court gave discretion to the board’s interpretation and upheld the allocation.

Callahan v. State of Delaware, 2012 WL 2106943 (Del. Super. Ct. 2012)

Horseman applied and was granted ability to race in “Delaware-owned and bred races”, which had purses about 20% higher than other harness races. After two years of winning substantial purses, the judges determined that he was not a Delaware resident, and the Racing Commission affirmed. On appeal, he charged that the decision was not supported by substantial evidence because he had an apartment in Dover. The court held that the Commission did not have to believe him, and its decision was supported by substantial evidence because he appeared to have resided on a farm in Maryland where he kept his horses.

Dutrow v. New York State Racing and Wagering Bd., 949 N.Y.S.2d 241 (N.Y. App. Div. 2012)

Trainer was determined to have given mepivacaine, which was prohibited from being given within seven days of a race, when trace metabolites were detected after a race. The Board had conflicting evidence from Dr. Maylin of Cornell and Dr. Barker for LSU. On appeal, the court upheld the determination, stating that the Board had a right to rely on Dr. Maylin rather than Dr. Barker. 18 A.D.3d 947 (N.Y. App. Div. 2005).

The Racing Commission adopted the hearing officer’s finding of a violation and suspended his license for 10 years. On appeal, Dutrow argued that the Chair of the Commission should have recused himself because, as a member of the Association of Racing Commissions International, he received commu-nication about the matter, and also received a call from a state senator about the matter. The court ruled that this was not a sufficient showing of bias to conclude that Dutrow was denied a fair hearing. It also held that the penalty was not unduly harsh.

Dye v. Office of the Racing Comm’n, 702 F.3d 286 (6th Cir. 2012)

Racing stewards sued Racing Commission official for civil rights violations, claiming adverse employment actions were taken in retaliation of their political

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speech and political affiliation. The district court granted summary judgment to the defendants. The court of appeals affirmed in part and reversed in part. With respect to the political speech claims, it determined that the speech was not protected speech, and thus upheld the summary judgment. With respect to the political affiliation claim, the court of appeals reversed because some evidence was presented that the adverse action was taken as a result of their affiliation with the Republican Party.

Foster v. State of Delaware, 2012 WL 5494664 (Del. Super. Ct. 2012)

Foster owned residences in three states, including Delaware. The Harness Racing Commission demanded that he produce a calendar evidencing that he resided in Delaware for at least 183 days, the minimum necessary for his horses to be eligible for the Delaware-Owned Horse Racing Program. Although he produced a great deal of evidence that his residence was in Delaware, such a calendar did not exist. The Commission ruled his horses were disqualified.

The court reversed, holding that the requirement to produce such a calendar was ridiculous, as it was “‘evidence’ that few people maintain.” The decision, it stated, was not supported by substantial evidence.

In the Matter of the Veto by Governor Chris Christie, 58 A.3d 735 (N.J. Super. Ct. App. Div. 2012)

Governor Christie vetoed the Racing Commission’s distribution of subsidies. The veto was challenged as unconstitutional by the Thoroughbred Breeders’ Association of New Jersey. The court held that the veto was proper exercise of executive power by the Governor.

Lewis v. New York Racing and Wagering Bd., 954 N.Y.S.2d 263 (N.Y. App. Div. 2012)

Applicant for harness racing training license was denied a license on the basis of lack of character. The applicant appealed, but at the hearing became enraged, smashed a glass table, and verbally abused the state investigator. The hearing officer upheld the denial. The court affirmed.

Moreno v. Penn Nat’l Gaming Inc., 904 F. Supp. 2d 414 (M.D. Pa. 2012)

Trainer was ejected from track without a hearing after syringes were found. The trainer brought a federal action against the track under 42 USC § 1983. The track resisted a motion for an injunction on the basis that no state action

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was involved. The court held that there was a sufficient showing of state action because the track was acting to enforce state regulations, and state investigators had been involved. The court also held that the trainer showed a likelihood of success on the merits, because it appeared he was entitled to a hearing before the Racing Commission before he was ejected.

In the second ruling the district court addressed the Racing Commission’s motion to vacate the prior rulings on the basis that it subsequently held a hearing, which upheld the ejection sanctions. The trainer countered that the hearing was a “farce” because of the behavior of the hearing officer that was antagonistic toward the trainer. The court held that he should have appealed under the Pennsylvania procedures, and thus would not entertain the argument.

The court did, however, determine that it could consider the challenge by the trainer that the Pennsylvania rule was unconstitutional as violative of due process. The court held that the Younger doctrine did not require it to abstain, and that the trainer showed sufficient injury to have standing. The court held that the ejection rule was unconstitutional because it failed to assure a prompt post-deprivation hearing.

Pena v. New Meadowlands Racetrack, LLC, 2012 WL 95344 (D.N.J. 2012)

Standardbred trainer was excluded from the Meadowlands by decision of the director of racing. He sued for violation of his civil rights, contending that the decision was essentially state action. On a motion for preliminary injunction, the court held that Pena did not show state action was involved. Although the Meadowlands facility was owned by the state, it was nominally leased to an operating company. This was insufficient to show a “close nexus” between the state and the track. In addition, the action was not “fairly attributable” to the state, despite the ownership, pervasive regulation, and flow of money to and from the track to the state.

2011

Bell v. Tampa Bay Downs, Inc., 2011 WL 6718266 (M.D. Fla. 2011)

Jockey sued Tampa Bay Downs for banning him from the track under the allegation that he was involved in fixing a horse race. He alleged tortious in-terference and violation of his civil rights under 42 USC § 1983. The district court dismissed the § 1983 action because, although the track was regulated by the state, the banning did not involve state action. The court did not dismiss the tortious interference claim, however. It held that although the track had a qualified privilege to exclude jockeys, there was an exception for malice, which could be shown by acting without reason or investigation.

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Croghan v. New Jersey Racing Comm’n, 2011 WL 222135 (N.J. Super. Ct. App. Div. 2011)

Harness-horse trainer was suspended for TCO2 violations. At the hearing before the ALJ, trainer’s expert sought to challenge the validity of the TCO2 regulatory thresholds as based on bad science, and sought the test results from the Racing Commission on a hundred races, to buttress his theory. The ALJ denied the discovery request, and ruled against the trainer on a summary basis. On appeal to court, the ruling on the discovery was upheld because a challenge to the facial validity of regulations could not be brought in an administrative hearing, but had to be brought in court. The court nevertheless reversed and remanded the decision because a hearing, rather than summary disposition, was appropriate.

Ft. Meyers Real Estate Holdings, LLC v. Dep’t of Business, 53 So. 3d 1158 (Fla. Dist. Ct. App. 2011)

Applicant for Quarter Horse racing permit was denied permit after informal review by the Florida Division of Paramutual Wagering. On appeal to court, the appeals court held that applicant was entitled to an administrative hearing.

Fusco v. N.Y. State Racing and Wagering Bd., 931 N.Y.S.2d 439 (N.Y. App. Div. 2011)

Trainer was suspended for five years after a clenbuterol positive. The determi-nation that he violated the prohibition against administering clenbuterol within 96 hours of a race was based not on the level of detection (it was below the threshold), but on the veterinary records which showed that the drug was “ti-trated” before the race. On appeal, he challenged the admissibility of veterinary records as hearsay. The court ruled that hearsay was admissible and could be considered substantial evidence to uphold a ruling. The court also held that it was not error for the board to have remanded the matter to a hearing officer to re-open the hearing to consider additional evidence.

Givens v. Delaware Harness Racing Comm’n, 2011 WL 5822626 (Del. Super. Ct. 2011)

Givens’ racing license was suspended by the Delaware Harness Racing Com-mission. Givens sued for writ of prohibition to enjoin the Commission from suspending his. The writ of prohibition was denied because it was not an appropriate remedy. A writ of prohibition is only available where the tribunal has violated a fundamental constitutional right.

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Gleason v. Gilmore, 2010 WL 5017930 (D. Or. 2011)

Trainer was suspended for allegedly misrepresenting prior convictions and arrests on his license application. He appealed the suspension to the Racing Commission, and after losing that, to the Oregon Court of Appeals. While the appeal was pending, he filed a § 1983 action against the employees of the Racing Commission for violating his civil rights. The case was removed to federal court. The court granted summary judgment to the defendants on the basis of res judicata.

In the Matter of the Adoption of BJAC 13:70, 2011 WL 2162753 (N.J. Super. Ct. App. Div. 2011)

The New Jersey HBPA challenged the adoption of a variety of racing regula-tions, on a variety of grounds. The court largely found the regulations to be valid, although a portion of the regulations was struck for failure to establish criteria for the Commission.

PNGI Charles Town Gaming, LLC v. Reynolds, 727 S.E.2d 799 (W. Va. 2011)

Jockeys were fined and suspended by the Racing Commission for alleged weight violations. They successfully obtained an injunction against the Com-mission prohibiting the Commission from imposing sanctions until a new hearing was held and the decision reviewed. However, the racing association that owned the track prohibited the jockeys from entering the track premises, contending that it had a common-law right to do so, and that the injunction did not apply to it. The trial court extended the injunction to the Racing Association, stating it would render the prior injunction meaningless.

On appeal the Racing Association argued that it had the unfettered common-law right to exclude the jockeys from its private property. In a split decision, the court agreed it had that right, but ruled that because the track was licensed it could not exercise that right to exclude a licensed racing participant.

Texas Racing Comm’n v. Marquez, 2011 WL 3659092 (Tex. App. 2011)

Race horse owner ran two horses in a race but inadvertently switched saddle cloth numbers. One of the horses placed second, but the stewards disqualified the horse and ordered redistribution of the purse. The owner attempted to ap-peal to the Commission under the Texas statute, which provided for appeals

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of stewards’ rulings except where the stewards’ decision was based on a “foul in a race”. The Commission refused to consider the appeal.

The owner sued the Commission and its director in state court under the Texas Administrative Procedures Act and the Texas Declaratory Judgment Act. The trial court ruled in favor of the owner under the Declaratory Judgment Act and ordered the reversal of the stewards’ ruling.

On appeal, the Commission argued that the declaratory judgment suit was an improper violation of sovereign immunity. The court rejected this challenge, holding that the actions of the director in not docketing the appeal as was required under the statute fell within the ultra vires exception to sovereign immunity. The court, however, held that the trial court exceeded its authority in ordering the redistribution of the purse, as that determination had to go back to the administrative procedure.

Wilson v. Indiana Horse Racing Comm’n, 2011 WL 1583850 (Ind. Ct. App. 2011)

Trainer sought judicial review of an adverse decision of the Indiana Racing Commission. However, her petition was dismissed because of a technical failure to timely comply with the requirement that a certified record be filed with the court, as required by the Indiana administrative procedures statute. The appeals court upheld the dismissal, noting that the statute did not provide for any exceptions for compliance.

2010

Adams v. Delaware Harness Racing Comm’n, 999 A.2d 860 (Del. 2010)

Harness racehorse trainer was fined and suspended for three buprenorphine positives. The procedure before the Commission had been fraught with irreg-ularities, including: (1) after a hearing before a hearing officer, a full hearing before the Commission was conducted, but the decision was rendered after the 30-day period required by statute; (2) the split sample was sent to LSU, but LSU did not have a record of having it, so it was never tested.

The trainer appealed to the Superior Court, arguing seven errors. Among those, he argued that the failure of the Commission to follow its own rules and render the decision within thirty days invalidated it. The court of appeals held that the rule was “merely to effectuate the transaction of agency business” and its violation did not prejudice the trainer, and thus did not void the ruling.

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The trainer also complained that the two hearings were an unpermitted “second bite at the apple” by the Commission. The court rejected that because the first hearing did not result in a decision.

The trainer’s assertion that the lost split sample violated his right to have a split sample tested was rejected because the obligation of the Commission was to only ship the split to a laboratory selected by the trainer, and it did so. It was beyond its control that the laboratory misplaced the sample.

The fines and suspension were therefore affirmed by the Superior Court. 2010 WL 201208 (Del. Super. Ct. 2010).

Adams appealed to the Delaware Supreme Court, arguing three points. First, he again argued that the failure to render a decision in 30 days, in violation of the rules, violated his due process rights. The court held that without a show-ing of prejudice, that was not a defense. Second, he argued that the conduct of the prosecuting attorneys was unfair to him. That argument was dismissed as meritless. The third argument was that the Commission failed to take into account mitigating circumstances. That argument was dismissed because the Commission imposed the minimum penalties.

Bourgeois v. Louisiana State Racing Comm’n, 2010 WL 4542339 (La. Ct. App. 2010)

Trainers were suspended after horses tested positive for fluphenazine, a “Class II” tranquilizer prohibited on race day. They were given the minimum sentenc-es. Because they ordered the administration of the tranquilizer, and because the “absolute insurer rule” mandates it, the penalties were upheld on appeal as not arbitrary or capricious.

Gadsden Jai Alai, Inc. v. State, 26 So. 3d 68 (Fla. Dist. Ct. App. 2010)

Operators of dog racing and jai alai facility sued to challenge the issuance of a wagering permit to a Quarter Horse racetrack. The court held that the challengers did not have standing because the statutes for permitting wagering facilities do not contemplate the economic impact on other wagering facilities.

Glenn Hill Farm, LLC v. California Horse Racing Bd., 117 Cal. Rptr. 3d 550 (Cal. Ct. App. 2010)

To qualify for the Del Mar Derby a horse has to have at least showed in stakes races during the meet. MEDICI CODE qualified by winning the La Jolla Handicap and the Oceanside Stakes. He went on to win the Del Mar Derby. However, he tested positive for clenbuterol (a fact not made public until after

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the Derby) in the Handicap and the Stakes, and after later public proceedings, was disqualified in those races. The stewards took no action regarding his winning the Derby.

The second-place finisher, believing that MEDICI CODE should have been disqualified by the stewards in the Derby, filed proceedings to require the Racing Commission to take such action. The Commission took the position that the “72-hour rule” prevented them from doing so because a protest had to be filed within 72 hours of a race. On appeal to the lower court, the owner of the second-place finisher argued that the 72-hour rule was impossible to comply with because the positives were not known publicly until after that time expired. The court thus ordered the Racing Commission to make a de-termination on disqualification.

The Racing Commission appealed, and the court of appeals reversed on the technicality that the “72-hour rule” contained an exception for fraud or willful misconduct, which the second-place finisher did not allege.

In re New York Off-Track Betting Corp., 434 B.R. 131 (Bankr. S.D.N.Y. 2010)

Tracks moved to compel the bankrupt OTB corporation to pay it indirect commissions owed. The bankruptcy court held that it could not compel the payments as requested.

Johnson v. Bd. of Stewards, 693 S.E.2d 93 (W. Va. 2010)

Horse was disqualified and purse redistributed after tests detected a small amount of caffeine. Owners of the horse showed that the amount could have no effect on the horse’s performance and was likely the result of contamination. They challenged the “zero tolerance rule” as unconstitutional.

The court recognized that the prior rules which were deemed constitutional prohibited the “administration” of substances to affect a horse’s performance, while the rule at issue merely prohibited the presence of substances. Never-theless, the rule’s constitutionality was upheld “as a reasonable method of preventing horses from being raced when they have drugs in their system” and was thus “rationally related to the reasonable regulation of horse racing.”

Noble v. Office of the Racing Comm’r, 2010 WL 3928708 (Mich. Ct. App. 2010)

Trainer was disciplined when the horse entered in race tested positive for flunixin. Flunixin had been administered a week prior to the race as treatment

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for an injury. On appeal to the circuit court, the court ruled that although the statute was violated, the application of the statute in this instance was arbitrary and capricious. The court of appeals reversed, holding that the strict liability of the “absolute insurer rule” did not permit any judicial exceptions.

Northville Downs v. Granholm, 622 F.3d 579 (6th Cir. 2010)

Michigan voters passed Proposition 1, authorizing lotteries, and owners of financially-affected racetracks sued in federal court under § 1983, that the enactment violated their federal constitutional rights under the Equal Protection and Commerce Clauses. The district court granted judgment on the pleadings to the state, and the court of appeals affirmed.

Sclafani v. Spitzer, 2010 WL 3386022 (E.D.N.Y. 2010)

When NYRA was subject to federal criminal scrutiny, they hired an investigator and obtained the arrest of two employees that operated the weighing scales. The multiple charges were dismissed as not being supported by evidence. The employees then sued NYRA and the prosecutors for violating their civil rights, contending that they had just been set up to give NYRA the appearance that it was cleaning up racing. The district court granted summary judgment to the defendants on the basis of immunity.

Sumner v. Hogan, 73 A.D.3d 618 (N.Y. App. Div. 2010)

Standardbred horse owners challenged the constitutionality of regulations re-quiring the pre-race detention (without notice to the owners) of Standardbred horses where the trainer had been found to have two TCO2 violations. The court held that the owners could not challenge the regulations because they had not exhausted their administrative remedies. It further held that even if they could challenge them, the regulations were valid because the pre-race detention did not create a deprivation of a cognizable property interest. The cost of the detention is borne by the trainer, so no interest of the owners is affected. Further, the lack of notice is not an infirmity as notice is provided to the trainer and is available on the Racing Commission’s web site.

Vaders v. Pennsylvania Dep’t of Agriculture, 2010 WL 1053301 (E.D. Pa. 2010)

Trainer Jayne Vaders was suspended by the stewards following a “Class III” drug positive after a race. She appealed the decision to the Commission and lost, then appealed to the Pennsylvania Commonwealth Court, arguing selective enforcement. The Commonwealth Court ruled that the stewards did not abuse

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their discretion. She then sued Pennsylvania and the stewards in federal court under § 1983, arguing selective enforcement as a result of gender discrimina-tion. The suit against Pennsylvania was dismissed on the basis of sovereign immunity. The suit against the stewards was dismissed based on collateral estoppel, as she had made the same arguments in state court.

Waxman v. Kentucky Horse Racing Auth., 2010 WL 1928503 (Ky. Ct. App. 2010)

Owner of Standardbred was forced to forfeit purse when horse tested positive for a trace amount of flunixin – an amount that could not have had an effect on the racing performance of the horse. At the hearing before the Racing Com-mission’s hearing officer, the owner presented substantial evidence from an expert that the testing procedure was flawed. The hearing officer rejected the testimony and the Commission entered an order confirming the redistribution of the purse.

On appeal to the circuit court the court upheld the decision. Although it rec-ognized that the owner had presented substantial evidence that the testing procedure was flawed, the court declined to re-weigh the evidence, deferring to the findings of the hearing officer. The court also rejected the Equal Protection challenge based on the fact that the Thoroughbred regulations established a threshold for flunixin, while the Standardbred regulations (at that time) had not. The court held there was a significant difference between Standardbred and Thoroughbred racing, and thus there was a “rational basis” for the distinction.

2009

Jamgotchian v. Slender, 89 Cal. Rptr. 3d 122 (Cal. Ct. App. 2009)

Horse owned by Jamgotchian was entered in a race at Del Mar. Prior to the scratch time, Jamgotchian asked his trainer to scratch the horse because it had a sore foot and needed an extra week’s time off, when it would be entered in a race in Seattle. California Steward George Slender allegedly refused to allow the scratch, threatening the trainer with fines and suspensions if he tried to scratch the horse. The steward had guards posted at the barn to prevent removal of the horse, and the trainer was allegedly forced to race the horse. As a result of the race, the horse became lame. Jamgotchian sued the steward for “trespass to chattels.” The trial court granted summary judgment to the steward.

The court of appeals reversed, holding that the steward was not entitled to immunity or quasi-immunity, and triable issues were presented as to whether the steward committed trespass to chattels.

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Laterza v. New York State Racing & Wagering Bd., 892 N.Y.S.2d 253 (N.Y. App. Div. 2009)

Trainer was suspended for five years when horse tested positive for designer drugs which mimic EPO. New York law prohibited the administration of EPO within seven days of a race. On review, the court held that substantial evidence was presented that the EPO-like substance was present in the blood. However, the court ruled that there was no substantial evidence that the drug had been given within seven days of the race. The court noted that one expert was unable to say how long ago the drug had been given, and the basis for the testimony of the other expert that the drug had been given within seven days had not been disclosed.

MEC Oregon Racing, Inc. v. Oregon Racing Comm’n, 225 P.3d 61 (Or. Ct. App. 2009)

Racetrack sought to add “Thoroughbred Mania” terminals to its track. Thor-oughbred Mania is a video gambling system based on a video library of 300,000 previous races. The betting system had some mutual wagering features.

The Oregon Racing Commission denied the request on the basis that the law only allowed live racing. On appeal, the track argued that the statute permitting off-track betting permitted these machines. The court upheld the denial because the legislature did not intend this type of wagering, noting that the mutual pool was not for a single race but for a group of historic races.

New Jersey Thoroughbred Horsemen’s Ass’n v. New Jersey Racing Comm’n, 2009 WL 815440 (N.J. Sup. Ct. App. Div. 2009)

New Jersey’s Horsemen’s Group successfully obtained an injunction enjoining the New Jersey Racing Commission from adopting emergency regulations concerning steroids. The court of appeals vacated the injunction on the basis that the precipitous action of the Horsemen’s Group interfered with the Racing Commission’s following the proper rule-making process.

P’Pool v. Indiana Horse Racing Comm’n, 916 N.E.2d 668 (Ind. Ct. App. 2009)

IRHC fined Standardbred trainer $30,000 and suspended him for 6 years after multiple dexamethasone positives. Trainer appealed on multiple grounds. He first contended that the IRHC violated his rights by not calling the positives as they happened, but letting them accumulate. This argument was rejected by the

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court of appeals. He also argued that the penalty was excessive and arbitrary, but this argument was rejected because the penalties were within the rules.

Thomas v. Ohio State Racing Comm’rs, 2009 WL 840547 (Ohio Ct. App. 2009)

Trainer’s horse was determined to be over the TCO2 limit after winning a race. A hearing officer upheld a suspension of one year and a $1,000 fine. On appeal, the trainer asserted that the evidence did not support the finding because there was no showing the trainer caused the overage or that it had any effect on performance. The court rejected that challenge based on the “absolute insurer rule” applicable in Ohio, making a trainer strictly liable for any drug positive.

The trainer also alleged that the TCO2 rule was beyond the statutory grant of authority to the Racing Commission because TCO2 is not a foreign substance. The court rejected that challenge because the statute defines foreign substances as “all classified substances except those which exist naturally in the untreated horse at normal physiological concentrations.”

T.R. Racing v. Arizona Dep’t of Racing, 222 P.3d 280 (Az. Ct. App. 2009)

Arizona Department of Racing required TP Racing to pay $61,000 it incurred in conducting a background investigation in connection with its renewal of its racing permit. TR Racing sued to prohibit this, but the court held that the charge was proper under the Arizona statutes.

Waite v. State of Delaware, 2009 WL 406806 (Del. Super. Ct. 2009)

Trainer’s horse was placed on the “Steward’s List” for 14 days for failing a drug test prior to a race at Dover Downs in Delaware. While on the list, the trainer entered the horse in a race at Meadowlands, outside Delaware. The New Jersey Harness Racing Commission suspended the trainer for 45 days, and fined him $2,000. The decision was upheld by the court because there was testimony that it “was common knowledge in the industry that a horse on the Steward’s List could not race anywhere until released.”

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2008

Empress Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277 (III. 2008)

Illinois riverboat casinos with more than $200 million in annual receipts challenged the constitutionality of a statue imposing on them a 3% surcharge to distribute to horse racing tracks. The trial court held that the statute was invalid as violating the Uniformity Clause in the Illinois constitution, finding that the justification for not taxing other casinos was invalid. The decision was directly reviewed by the Illinois Supreme Court.

The purported purpose for the surcharge was that casinos caused a decline in the horse industry. The casinos asserted that casinos were not the major source of decline in the horse industry – pointing to simulcasting and internet wager-ing as other factors. The court, though, held that the legislature’s justification was subject to deference. It further held that differentiating between tracks with more and less than $200 million in revenues was not arbitrary. Finally, it rejected the challenge that the legislature primarily benefits private interests.

Florida Division of Pari-Mutuel Wagering v. Florida Standardbred Breeders & Owners Ass’n, 983 So. 2d 61 (Fla. Dist. Ct. App. 2008)

Florida Standardbred Breeders Association sued Pompano Park and the Flor-ida Division of Pari-Mutuel Wagering in Broward County rather than Leon County, the home venue of the Division. The suit sought damages for failure of Pompano to renew its contract after it obtained slots. The general rule was that a government agency can only be sued in the county of its home venue. However, the trial court held that the Division could be sued outside its county under the “sword-wielder doctrine.” The Florida Court of Appeals disagreed, holding that the doctrine did not apply because the claim against the Division was for a declaration that it should not have issued Pompano a license, not for imminent harm to the Association.

Gill v. New York State Racing and Wagering Bd., 50 A.D.3d 494 (N.Y. App. Div. 2008)

Owner and a trainer of horse which tested positive for fluphenazine challenged the emergency rule permitting the post-race testing for the drug. The appeals court held that the challenges to the emergency rule were barred by the statute of limitations because they were brought four months after the rule’s enactment. However, the challenge to the enforcement of the rule based on constitutional infirmities was not time-barred.

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In re Guadalupe, 2008 WL 4722607 (N.J. Super. Ct. App. Div. 2008)

Jockey Jesus Guadalupe was convicted in 1977 of racefixing in 1975. Later, he raced without adverse incident in Puerto Rico, and had his conviction expunged. In 2006 he applied to the New Jersey Racing Commission for a license, arguing that the expungement and the New Jersey Rehabilitated Con-victed Offenders Act permitted a license. His application was denied, and he appealed. The court held that the decision of the Racing Commission was not arbitrary or capricious. The expungement, the court stated, “does not reach to the Commission’s records.” The factors set forth in the Act, the court noted, could be weighed in the discretion of the Commission. The court emphasized that the integrity of racing authorized the Commission to deny the license.

In the Matter of the Application of NJSA, 2008 WL 3539944 (N.J. Super. Ct. App. Div. 2008)

The New Jersey Horsemen’s Association challenged the Racing Commission’s order allocating off-track racing proceeds. It contended that under the statute, all proceeds should benefit Thoroughbred racing. The interpretation of the statute involved the meaning of the term “former” facility. The court agreed with the Commission that it meant a closed track, and Atlantic City Race Course remained open, thus was not a “former” facility.

In the Matter of Consider Distribution of the Casino Simulcasting Special Fund, 939 A.2d 230 (N.J. Super. Ct. App. Div. 2008)

New Jersey law provided for a fund collected from Atlantic City Casinos to be distributed to tracks and horsemen. Distribution of a portion of that fund was discretionary with the Racing Commission, subject to certain standards. No procedure was established by regulation for that determination. The Commis-sion took proposals, and secretively informally discussed them. The ultimate vote, without public discussion, was made at a public meeting. The horsemen, who got shortchanged, sued.

On appeal, the court agreed that the procedure violated the New Jersey Open Meetings Act and was also invalid for the failure of the Commission to adopt a regulation to conduct the proceedings.

LHT Capital, LLC v. Indiana Horse Racing Comm’n, 891 N.E.2d 646, upon rehearing 895 N.E.2d 124 (III. App. Ct. 2008)

Minority interest owner of track sought review of emergency order of the Racing Commission imposing a $9 million fee on the transfer of the interest.

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The court held that he owner failed to exhaust its administrative remedies, and thus dismissed the action for lack of subject matter jurisdiction.

McPeek v. Deputy Attorney General of New Jersey, 2008 WL 5273081 (N.J. Super. Ct. App. Div. 2008)

Trainer Kenny McPeek was suspended by the stewards for thirty days for enter-ing an unfit horse in a race. The Racing Commission increased the suspension to one year. McPeek appealed, and the ALJ recommended that the charges be dismissed. The Commission adopted the recommendation.

McPeek sued in federal court for violation of his civil rights under both federal and state law. The federal judge dismissed the case because (1) McPeek did not show that the hearing was inadequate; (2) no property interest was affect-ed because the suspension was stayed; and (3) the defendants had qualified immunity. The state claims were dismissed without prejudice. McPeek sued in state court, but because the state constitution afforded no more protection than the federal constitution, McPeek’s suit was dismissed on res judicata and collateral estoppel grounds. That decision was upheld on appeal.

New York Racing Ass’n v. New York Racing and Wagering Bd., 863 N.Y.S.2d 540 (N.Y. Sup. Ct. 2008)

Newspaper reporter sought information about NYRA’s bid from the New York State Racing and Wagering Board under the New York Freedom of Information Act. NYIRA objected that the information as proprietary. The court agreed and granted the exemption.

2007

Bedford Downs Mgmt. Corp. v. State Harness Racing Comm’n, 926 A.2d 908 (Pa. 2007)

Pennsylvania by statute had authorized 5 race track licenses. Only 3 were acquired due to lack of interest. An additional license was issued later. How-ever, when the possibility of slots developed, two applications were made for the remaining license. The Commission, skeptical that the licenses were just sought for purposes of slot gambling, denied both applications. The application of Valley View was denied on the basis that the proposed facilities were insuf-ficient and thus not in the best interest of horse racing. The Commonwealth Court upheld this decision as within the discretion of the Commission. Bed-ford’s application was denied on the basis that the grandfather of the present owners had been involved in organized crime, and that the proposed financing

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was questionable. The court reversed the denial of Bedford’s license. It held that the criminal involvement of the grandfather was not a legitimate basis to deny a license, and the showing of ability to finance was sufficient. Bedford Downs Management Corp. v. State Harness Racing Comm’n, 901 A.2d 1063 (Pa. Commw. Ct. 2006).

On review by the Supreme Court of Pennsylvania, the court emphasized that the Commission’s determinations as to licensing were subject to great deference. It disagreed with the Commonwealth Court that the decision of the Commis-sion was based only on guilt through ancestry, pointing to evidence that the grandfather had conducted his organized crime activity through companies which still exist today and may be the source of financing the operation of the track by Bedford. Ultimately, the court did not rule on that specific issue, holding that the Commonwealth Court substituted its judgment for that of the Commission on the issue of whether Bedford had sufficient financing. The court further upheld the determination of the Commonwealth Court in upholding the denial of the Valley View application.

Casino Free Philadelphia v. Pennsylvania Gaming Control Bd., 934 A.2d 1249 (Pa. 2007)

Supreme Court of Pennsylvania rejected citizen’s group’s challenge that the Pennsylvania Race Horse Development and Gaming Act violated the state’s constitution.

Churchill Downs Inc. v. ODS Technologies, L.P., 2007 WL 1231550 (W.D. Ky. 2007)

Churchill Downs had an agreement with ODS (TVG) to broadcast races. The agreement was non-assignable. Churchill Downs sued ODS when ODS entered into an arrangement with At the Races (“ATR”). ODS moved to dis-miss. Although the court appeared inclined, under Delaware law, to draw a distinction between an assignment and a sub-license, the court did not dismiss the case because Churchill Downs did not have the entire documentation of the arrangement between ODS and ATR.

Curry v. Pennsylvania Gaming Control Bd., 916 A.2d 624 (Pa. 2007)

Citizens group sought to appeal the determination of the Gaming Control Board to award a slot machine license to Presque Isle Downs. The Supreme Court of Pennsylvania ruled that the citizens group did not have standing to appeal, as it had not participated in the Board administrative proceedings and its members did not have a direct interest in the license.

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Daley v. Gorajec, 2007 WL 2286132 (S.D. Ind. 2007)

Trainer Noel Daley entered several horses in Indiana races then applied for a racing license in Indiana. His application was summarily denied by Joe Gorajec, the Executive Director of the Indiana Racing Commission. He had determined from ARCI that Daley had a previous suspension in New Jersey. Daley and his owner sued Gorajec and the members of the Racing Commis-sion under 42 USC § 1983 for violation of constitutional rights, seeking an injunction and damages.

The court dismissed the injunction claim because Daley did not show that he could not reapply for a license, noting that the license was “refused” rather that “denied.” The court dismissed all claims against the Commission members because they did not participate in the decision, therefore could not have been acting in their individual capacities. The court dismissed the claim brought by the owner of the horses because it did not have a direct interest in the license.

The court granted summary judgment on most of the substantive claims. The claim for violation of the Equal Protection Clause was dismissed on summary judgment because Daley showed no evidence he was a member of a protected class or that there was ill-will by Gorajec toward Daley. The claim for violation of due process was dismissed on summary judgment because the applied-for racing license was not a property right that he had a legitimate claim of en-titlement to, because the Commission had discretion to deny a license. The claim for violation of the Privileges and Immunity Clause was not dismissed, because Daley was entitled to determine if Indiana discriminated against out-of-state applicants in favor of in-state applicants.

However, summary judgment was granted to Gorajec on the basis of qualified immunity, because no violation of a “clearly established right” had occurred.

Ellison v. Illinois Racing Bd., 878 N.E.2d 740 (Ill. App. Ct. 2007)

Investigators entered trainer James Ellison’s barn at Balmoral Park Racetrack and found a grocery bag containing syringes and prescription medications. Although the bag was not in Ellison’s possession, he and his employee acted very suspicious and evasive in the presence of the investigators. A stewards’ hearing was held, and the record reviewed by the Illinois Racing Board. The Board suspended Ellison for three years for violating a variety of administrative regulations, most notably the Trainer Responsibility rule.

Ellison challenged the suspension in court, and then on appeal, on a variety of grounds. He argued that the Board’s decision was void because it was essen-tially made “behind closed doors” in violation of the Illinois Open Meetings Act. The court rejected this, holding the process of the Board members famil-

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iarizing themselves with the evidence before the hearing does not mean they conspired behind closed doors.

Ellison also argued that the decision was not supported by the evidence. The court rejected this challenge on the basis that circumstantial evidence – par-ticularly Ellison’s “odd behavior” – was sufficient, and nevertheless under the Trainer Responsibility rule Ellison was responsible for the possession of the contraband by his employee. The court also rejected the argument that the state needed to show a chain of custody of the contraband, noting that rules of evidence do not apply in administrative hearings.

Ellison also asserted that he was not provided notice of the specific charges against him as the specific rule violations were never identified in the charges. The court rejected that challenge because his counsel presumably knew the basis for at least some of the charges. The court also rejected the assertion that the statute itself was unconstitutionally vague.

Ellison challenged the severity of the penalty. The court again rejected this challenge, and rejected the notion that the Board should have taken into account mitigating circumstances.

Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc., 479 F.3d 1310 (11th Cir. 2007)

The Eleventh Circuit determined that the issue of whether the Florida Pari-Mu-tuel Wagering Act prohibits an agreement between a Thoroughbred track and an out-of-state track that grants the Florida track the exclusive right to dissem-inate the out-of-state track’s simulcast signal to other Florida wagering sites permitted to receive them, should be certified to the Florida Supreme Court.

Pederson v. New York State Racing and Wagering Bd., 46 A.D.3d 1072 (N.Y. App. Div. 2007)

Trainer Jennifer Pederson was suspended after injectables were found at her racetrack barn during a random search. She claimed they belonged to her veterinarian. She failed to present evidence of that, so her suspension was upheld on appeal.

Pellegrini v. State Harness Racing Comm’n, 922 A.2d 33 (Pa. Commw. Ct. 2007)

Trainer’s horse tested positive for ambroxol, for which he was suspended by the Racing Commission. The ruling was later modified to change the suspension dates, and the trainer appealed from the modification. While on appeal, the

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modification was rescinded, and the original dates reinstated. On appeal, the court held that it was error for the Commission to modify the dates without giving notice and opportunity to be heard.

Redmond v. The Jockey Club, 244 F. App’x 663 (6th Cir. 2007)

Horse owner was denied the right to name his horse SALLY HEMMINGS by the Jockey Club, and thus the ability to race his horse in Kentucky under that name. Owner sued the Jockey Club and the Kentucky Horse Racing Authority for violation of his constitutional rights and for unconstitutional delegation of power. The district court dismissed the complaint, holding that the ability of the Jockey Club to approve names of horses, which must be registered with the Jockey Club as a condition or racing in Kentucky, was not an unconstitutional delegation of power because no state power was delegated to the Jockey Club. The court also held that the Jockey Club’s actions did not constitute state action, and thus no constitutional mandates applied.

On appeal, the Sixth Circuit affirmed. It declined to address the state-law claim that the delegation of state power to the Jockey Club was improper, holding that it did not state a claim of violation of the United States Constitution. It also held that Redmond’s First Amendment claim failed because the restriction on the use of “SALLY HEMMINGS” is reasonable. The Fifth Amendment Takings Clause claim was deemed not viable because Redmond had no “legitimate claim” to the name “SALLY HEMMINGS.” It rejected the Equal Protection Clause claim because the action was rationally related to a legitimate state interest. The due process claim was rejected because the name of a horse was not an interest “traditionally protected by our society.”

Santos v. Knight-Ridder, Inc., 967 So. 2d 408 (Fla. Dist. Ct. App. 2007)

Wife of jockey Jose Santos sued for loss of consortium as a result of an al-legedly defamatory article about her husband in the Miami Herald. Summary judgment in favor of the paper was reversed, with the court of appeals holding that a genuine issue of fact existed as to whether there was loss of consortium as defined by Florida law.

Sciacca v. Hoblock, 44 A.D.3d 425, 843 N.Y.S.2d 585 (N.Y. App. Div. 2007)

Trainer suspended for 120 days when his employee was caught attempting to administer sodium bicarbonate to a horse that the trainer was training. Sus-pension was upheld on the basis of the Trainer Responsibility rule, and the length of the penalty did not shock the conscience.

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Scott v. New York State Racing and Wagering Bd., 44 A.D.3d 338 (N.Y. App. Div. 2007)

Court of appeals upheld decision to refuse license to applicant who had poor record-keeping.

2006

Columbus Concerned Citizens, Inc. v. Minnesota Racing Comm’n, 2006 WL 1529494 (Minn. Ct. App. 2006)

Citizens groups sued Racing Commission for violating state Open Meetings laws in dealing with a reconsidered application for a track license, alleging that communication occurred among Commissioners and with the applicant. The trial court granted summary judgment to the Racing Commission. The court of appeals affirmed, holding that there was no showing that a quorum of Commissioners ever had such off-the-record discussions. The court also held that violation of the Open Meeting laws did not invalidate the action of the administrative body.

Dennis v. Delaware Harness Racing Comm’n, 2006 WL 2686528 (Del. Super. Ct. 2006)

Similar facts and ruling as in Eastburn, infra.

Eastburn v. Delaware Harness Racing Comm’n, 2006 WL 2900768 (Del. Super. Ct. 2006)

Trainer was charged with violating drug rules when pre-drug blood test yielded excessive carbon dioxide. On appeal, the trainer asserted that the Commission failed to follow its own procedure by not retesting immediately. The court held that the procedure was to guard against contamination by trainers, not the Commission, so that the Commission did not err in not retesting.

Finger Lakes Racing Ass’n v. State of New York Racing and Wagering Bd., 34 A.D.3d 895 (N.Y. App. Div. 2006)

New York’s Racing Board ordered Finger Lakes to reimburse NYRA for commissions it determined were improperly paid. The court of appeals upheld the dismissal of the suit challenging the determination on the basis that the challenge was untimely, and alternatively on the basis that the Commission

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had great discretion in such matters because of the “highly complex nature of the racing industry.”

Green v. Racing Ass’n of Central Iowa, 713 N.W.2d 234 (Iowa 2006)

Jockeys were precipitously banned from Prairie Meadows after an allegation of racial harassment was made by another jockey. The banned jockeys sued the track’s owner for violation of their due process rights and for interfering with their contractual relationships with the horse owners and trainers.

Summary judgment was granted to the track owner. The Supreme Court of Iowa affirmed. It held that the track was not subject to the constitution because no state action was involved. The court noted that although the track was leased from the county, and the county appointed many of the directors, the county did not participate in the decision to ban the jockeys, so therefore no state action was involved. As for the intentional interference claim, the court held that the jockeys failed to rebut the evidence that the track had good reason to ban the jockeys, thus the interference was justified.

Hudson v. Texas Racing Comm’n, 455 F.3d 697 (5th Cir. 2006)

Hudson, a licensed trainer in Texas, was suspended after a horse he was training tested positive for torsemide. No finding was made as to his intent or involvement in administering the substance. He sued to challenge Texas’ Absolute Insurer rule as violating due process. The Commission removed to federal court. The federal court upheld the constitutionality of the Absolute Insurer rule because the rule does not assign fault, and the rule is reasonably related to protect the integrity of the sport.

In re North Metro Harness, Inc., 711 N.W.2d 129 (Minn. Ct. App. 2006)

Minnesota Racing Commission initially denied application for a harness track. Among the reasons was inadequate infrastructure and adverse competition to Canterbury Park, a Minnesota Thoroughbred track. However, after denial, the applicants submitted a support from the HBPA, which apparently had struck a deal that would supplement the Canterbury Park purses, and submitted ad-ditional evidence of adequate infrastructure.

On its own motion, the Commission reconsidered its prior rejection, and ap-proved the license. The citizens group that opposed the license appealed. The court, however, rejected the claim that the Commission was without jurisdic-tion to reopen the proceedings and that its due process rights were violated.

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McGuire v. Hoblock, 25 A.D.3d 500 (N.Y. App. Div. 2006)

Veterinarian was suspended for 180 days and fined $1,000 for attempting to “milkshake” a horse on the day of a race. The Appellate Division upheld the sanctions as not a shock to its sense of fairness.

Pierce v. Texas Racing Comm’n, 212 S.W.3d 745 (Tex. App. 2006)

KRISTY’S GOLD STAR won second place in a race and was awarded a $28,000 purse. A urine test detected trace amounts of ipratropium, a Class 3 prohibited drug under the Texas rules. In fact, the drug was lawfully admin-istered by a veterinarian for proper therapeutic purposes more than 25 hours before the race, and typically has only a 6-hour effectiveness time and a 24-hour withdrawal time. Nevertheless, based on the Texas “zero-tolerance” policy, the steward fined the trainer $500, suspended the trainer for 15 days, and awarded the purse redistributed.

The latter punishment, of course, aggrieved the owner, who appealed to an Ad-ministrative Law Judge under Texas procedures. The ALJ found that although a technical violation occurred, because the drug could have had no effect on the race, the purse was not to be redistributed. The Racing Commission staff appealed that decision to the Racing Commission, which retained the factual finding that the drug had no effect, but reinstated the steward’s decision to redistribute the purse.

The owner challenged the constitutionality of these events in the Texas courts and wound up in the court of appeals. The owner’s first contention is that the Racing Commission could not properly reverse the ALJ ruling. The court rejected that contention, holding that the Commission was free to do so be-cause it had discretion over the penalty and properly concluded that the ALJ erred in not following the Commission’s usual (but apparently not universal) precedent regarding the “zero tolerance” policy. Moreover, “loss of purse” was authorized by statute, and was based on sound policy to prohibit horses from racing on prohibited substances.

The court also rejected the owner’s contention that the Commission did not bother to review the administrative record before making its own ruling. The court held that the Commission need not do so “as long as each affected party has had an opportunity to respond.”

The court also rejected the owner’s argument that the penalty on the innocent owner was well out of proportion to the penalty on the trainer, especially given that the trainer, not the owner, is considered the “absolute insurer” of the horse. The court held that no “suspect class” was involved to invoke an Equal Protection analysis.

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The court also rejected the owner’s claim that the burden was impermissibly placed on him at the hearing.

The owner also challenged the constitutionality of the rule because it created a presumption in favor of a violation. The court held that such presumptions were permissible. It also rejected the contention that the rule prohibiting the administration of a therapeutic substance within 24 hours of a race was in-consistent with the zero-tolerance rule, holding that complying with one rule does not excuse compliance with the zero-tolerance rule, thus the rules are not inconsistent. Finally, the court rejected the argument that the definition of a “prohibited drug” – a substance that affects the health or performance of an animal – conflicts with the purpose of the rules.

Pletcher v. NYRA, 35 A.D.3d 920 (N.Y. App. Div. 2006)

Trainer was suspended and fined after it was determined that mepivacaine was present in the blood, and had been administered within one week of a race, as prohibited by the NYRA regulations. The trainer challenged the ruling on the basis that the term “administer” required an element of intent, and the drug could have been present through some other manner. Citing the trainer respon-sibility rule, the court held that NYRA’s construction of the rule to not require intent was reasonable, especially since it only created a rebuttable presumption and not strict liability. NYRA was free to reject the trainer’s evidence that the drug entered the horse’s system through some other channel.

U.S. v. Martin, 411 F. Supp. 2d 370 (S.D.N.Y. 2006)

Martin was indicted for conspiracy to commit wire fraud for participating in a scheme to dope horses then place bets on those horses. Martin challenged the indictment. He alleged that no wire fraud could have been committed because no “scheme to defraud” existed in the doping/betting scheme. The court rejected that argument, holding that “breaking the rules of the horserace by doping a horse...violates fundamental notions of honesty, fair play and right dealing and is therefore an act within the meaning of a ‘scheme to defraud’.” The court also rejected the challenge based on the assertion that the scheme did not have money or property as its object, holding that placement of wagers are property.

VanHorn v. Oelschlager, 457 F.3d 844 (8th Cir. 2006)

Veterinarians were charged with race-day medication violations. The Racing Commission’s determination of violations was overturned on appeal. However, their applications for licenses were held up, and they sued the Commission members for violating their due process rights. The Commission moved for summary judgment on the basis of quasi-judicial immunity. The motion was

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denied, but the court of appeals reversed the denial, holding that the Commis-sion members were entitled to qualified immunity.

Wyoming Downs Rodeo Events, LLC v. State, 134 P.3d 1223 (Wyo. 2006)

The operator of Wyoming’s only horse racetrack desired to install “instant racing” pari-mutuel wagering terminals. These terminals are tied to a central computer in Maryland and select historic races from a database for wagering. The horses are anonymous, therefore typical handicapping is not practical. The track sued for a declaratory judgment, asserting that they were lawful under Wyoming’s statute permitting simulcast wagering on horse races. The trial court granted summary judgment to the state, holding that the terminals were illegal gambling devices. The Supreme Court of Wyoming concurred. It held that the terminals did not display simulcast races as that term was contemplated in the statute, because by definition it applied only to live races. Important to the court’s decision was the patent for the system, which described the fact that these machines fulfill the desires of patrons other than those who normally bet on live races.

2005

Brunk v. Nebraska State Racing Comm’n, 700 N.W.2d 594 (Neb. 2005)

Two veterinarians were charged with various offenses when racehorsess tested positive for clonidine. Nebraska regulations prohibited the administration of clonidine on race day. The Commission determined that the rule was violated, and that the veterinarians had committed the offense of failure to cooperate with a Commission investigation, and failure to comply with drug-handling and reporting rules.

A de novo review by the district court followed. There, evidence was presented by Dr. Sams of Ohio State and Dr. Barker of LSU as to the withdrawal times (or lack of knowledge thereof) of clonidine. Therefore, the court held that it was not shown that clonidine was administered on race day. This decision was upheld on appeal. The court further held that veterinarians, unlike trainers, were not responsible under the strict liability of the Trainer Responsibility rule. The appeals court determined, however, that the veterinarians violated the drug handling and reporting rules, and failed to cooperate with an investigation (reversing the trial court on this point).

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Hialeah Racing Ass’n v. Dep’t of Business and Prof’l Regulation, Div. of Pari-Mutuel Wagering, 907 So. 2d 1235 (Fla. Dist. Ct. App. 2005)

Hialeah’s license was revoked after it decided not to conduct scheduled races as a result of financial difficulties. The decision was affirmed on appeal on the basis that financial hardship was not an excuse sufficient to avoid license revocation.

Indianapolis Downs, LLC v. Indiana Horse Racing Comm’n, 827 N.E.2d 162 (Ind. Ct. App. 2005)

Indiana subsidizes tracks through taxes from casinos. A dispute arose about how the allocation was to be made between Indiana Downs and Hoosier Park, and Indiana Downs, being unsatisfied with an administrative determination as to the allocation, sued. The trial court dismissed the suit on the basis that the determination was unreviewable, but the court of appeals reversed that determination, but nevertheless upheld the administrative determination as not arbitrary and capricious.

Lee v. Walters, 433 F.3d 672 (9th Cir. 2005)

The Lees were part owners of The New Portland Meadows track. After taking funds from the purse account to pay other obligations, they were ordered by the Oregon Racing Commission to be excluded from the track. The exclusion order was pursuant to the Oregon statute that provided that a person could be excluded for enumerated reasons, including “any person whom the Commission deems detrimental to the best interest of racing.”

The Lees challenged their exclusion and sought damages in a § 1983 action in federal court. The district court ruled that statute was unconstitutional be-cause the “detrimental to the best interest of racing” standard was vague and arbitrary. However, after a trial, the jury awarded the Lees nothing in the way of damages, so they appealed. On appeal, the Ninth Circuit agreed with the district court that the language was unconstitutionally vague, but disagreed that the statue as a whole was unconstitutional because the language could be severed. Because other standards in the statute justified the exclusion, the decision was not reversed.

Pennsylvanians Against Gambling Expansion Fund, Inc. v. Com., 877 A.2d 383 (Pa. 2005)

Pennsylvania’s gaming bill, which allocated certain tax revenues from gaming to support horse racing, was challenged on a variety of state constitutional

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grounds. The Supreme Court of Pennsylvania upheld the statute, except for certain provisions governing allocations, which were deemed to have violated the “single subject requirement” of the state constitution.

State ex rel. Chadwell v. Ohio State Racing Comm’n, 2005 WL 590708 (Ohio Ct. App. 2005)

Thoroughbred owner was denied a license on the basis of testing positive three times for marijuana use. His mandamus action was dismissed because the Racing Commission’s refusal to issue a license was based on the owner’s failure to submit proof required by the rule. The appeals court upheld the denial.

Thompson v. Dixon, 2005 WL 1773980 (E.D. Pa. 2005)

Trainer was suspended for administering clenbuterol within 24 hours of post time to horses on five different occasions. The suspension was imposed by the stewards and upheld by the Racing Commission after a hearing. Later, the trainer petitioned the Racing Commission to reopen the proceedings in light of a recent scientific report that would refute the initial determination. The Racing Commission refused. The trainer sued in federal court for violation of his civil rights.

The federal district court dismissed the claim under the Younger abstention doctrine, noting that the trainer failed to pursue state court review of the Racing Commission’s refusal to reopen the case.

2004

Albarado v. Kentucky Horse Racing Auth., 2004 WL 1811504 (W.D. Ky. 2004)

Jockeys challenged Racing Authority’s regulation prohibiting jockeys from wearing guild patches and advertisements on their racing attire, as violating the First Amendment. The jockeys were fined for violating the regulation, which was being challenged in state court. The federal court first ruled that the Younger v. Harris abstention doctrine was not mandatory because the federal claim involved a future right, while the state court action involved the fine. The federal court then held that the guild patch was not commercial speech, and thus its ban could not be justified by any compelling state interest. As for the advertisements, although commercial speech was involved, First Amendment protections were violated even under lower scrutiny because the interests asserted by the Authority were not advanced by the regulation. The court also ruled that the usual deference given regulators is inapplicable,

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because the issue is not the interpretation of the regulations, but the First Amendment determination.

Allen v. Kentucky Horse Racing Auth., 136 S.W.3d 54 (Ky. Ct. App. 2004)

Carl Allen’s trotting horse tested positive for flunixin after winning a harness race. He appealed the steward’s disqualification and fine to the Racing Au-thority and then to the Franklin Circuit Court, which upheld the ruling. On appeal to the Kentucky Court of Appeals, the ruling was challenged on several grounds, the most significant being the unconstitutionality of the “trainer’s responsibility rule.”

Allen alleged that the rule was unconstitutional because it made the trainer responsible for any trace amount of prohibited substance, regardless of cause. The court adopted the opinions issued by other state courts that justified the harsh rule based on the need to control the difficult-to-control horse industry.

Allen also challenged the ruling on Equal Protection grounds because flunixin was permitted in Thoroughbred racing. The court ruled that there was a rational reason for the distinction between the two industries, noting the U.S. Supreme Court’s ruling in Barry v. Barchi, 443 U.S. 55 (1979).

Anderson v. New York Racing Ass’n, Inc., 2004 WL 60287 (S.D.N.Y. 2004)

NYRA is a non-profit association licensed by New York to own and operate racetracks. NYRA publishes comprehensive conditions for racing in New York. Among the conditions is the “single jockey” rule, prohibiting licensed jockey agents from representing more than one jockey. Ronald Anderson challenged the rule in a diversity action in federal court. NYRA moved to dismiss on the basis that it was a single actor, not a state agency, and could promulgate any conditions it desired. The court refused to dismiss the case, stating that Anderson raised a viable issue as to whether NYRA was entitled to effectively preempt the state licensing scheme.

Burneson v. Ohio State Racing Comm’n, 2004 WL 1405321 (Ohio Ct. App. 2004)

Acting on a tip, the director of security at Thistledowns, together with a repre-sentative of the Ohio Racing Commission, conducted a warrantless search of the barn area used by Burneson, locating a duffle bag with racing contraband. Burneson challenged the search as violating his Fourth Amendment rights. The court agreed that government act was involved, and that Burneson had a

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reasonable expectation of privacy in the barn. However, the regulation autho-rizing the administrative search was upheld under the New York v. Burger test due to the fact that racing is a pervasively regulated industry, and the regulation was sufficiently limited in scope.

Deaton v. Kentucky Horse Racing Auth., 172 S.W.3d 803 (Ky. Ct. App. 2004)

Deaton was the trainer of the Thoroughbred racehorse, EXPLODO RED. After a race, EXPLODO RED tested for Prozac® as a result of the owner having put the substance in a liquid glucosamine mixture provided to Deaton by the owner.

Deaton was suspended and heavily fined. The lower court upheld the sanctions on the basis of Kentucky’s Trainer Responsibility rule. On appeal, Deaton chal-lenged the rule which requires a trainer to prove he acted with a high degree of care when prohibited substances are detected – as violative of Kentucky’s statutory requirement that an agency always carries the burden of proving a violation. The court ruled that the rule did not shift the burden of proof, but cre-ated an affirmative defense, thus was not inconsistent with Kentucky’s statute.

Delahoussaye v. Ohio State Racing Comm’n, 2004 WL 1445951 (Ohio Ct. App. 2004)

Owner and trainer was charged with violating Ohio racing regulations because he was caught possessing a strip electric cord on a wooden stick. He challenged his suspension and fine on the basis that such possession was not prohibited by the regulation, which prohibited “batteries of any other electrical or mechanical instrument...” The court ruled that “of was an obvious typographical error,” and that it should defer to the administrative agency’s own interpretation of its own rules.

Donk v. Miller, 365 F.3d 159 (2d Cir. 2004)

Trainers were suspended in Florida when horses they trained tested positive for cocaine metabolites. They were suspended in New York under New York’s re-ciprocal suspension rule. They sued in federal court to enjoin the suspension on due process grounds, and the district court granted such injunction. The Second Circuit reversed, determining that their rights had not been violated because they were afforded a hearing before the suspension. The court did not decide whether reciprocal suspension without a hearing would violate due process.

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Freed v. New York State Racing and Wagering Bd., 780 N.Y.S.2d 673 (N.Y. App. Div. 2004)

Iorio’s horse won, and Freed’s horse placed, in a race. The stewards initially disqualified Iorio’s horse based on a positive test for a prohibited substance. The disqualification was later voluntarily reversed by the Board based on in-sufficient evidence, and Freed then commenced an administrative proceeding. The trial court dismissed the claim because Iorio was not named as a party and was a necessary party to the proceedings. The appeals court affirmed.

Hochstetler v. Delaware Harness Racing Comm’n, 845 A.2d 511 (Del. Super. Ct. 2004)

Hochstetler was harness trainer and driver. His 2-year-old horse, KADABRA, won a race at Dover Downs, but was disqualified from that race and a future race as a result of blood test results evidencing the presence of bute. Hoch-stetler was also fined.

Hochstetler challenged the decision on the basis that the regulations permitted the administration of bute.

He argued that because the regulations proscribed bute above specific amount for three-year-old and older horses, it necessarily permitted bute at any amount for 2 year-olds. The court rejected the contention as an unreasonable construc-tion of the regulations, given the general prohibition against “medications of any type.”

Holton v. Indiana Horse Racing Comm’n, 2004 WL 1689390 (S.D. Ind. 2004)

Racehorse owner was upset with steward’s ruling of an infraction and reducing horse’s finish from second to third place. An appeal by the Racing Commission was denied, so owner sued in federal court for an injunction and for violation of his civil rights under 42 USC § 1983. The court granted the Commission’s motion to dismiss the injunction action, stating that such a suit was barred by Eleventh Amendment sovereign immunity as the Commission was an arm of the state. The § 1983 action against the individual official was also dismissed, on the basis that denial of an appeal did not violate an established constitutional right.

The Seventh Circuit, however, held that the district court was incorrect be-cause the plaintiff was seeking damages – not a request for review – in the § 1983 action, thus the Eleventh Amendment did not apply. Unfortunately for the claimant, the Seventh Circuit determined that he should lose on the

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merits because there was no constitutional right to an appellate review of an administrative decision.

Lieberman v. Delaware Harness Racing Comm’n, 2004 WL 2830890 (Del. Super. Ct. 2004)

Trainer Lieberman’s harness horse tested positive for dexamethasone after winning two races. Lieberman challenged the sanctions imposed on the basis that the Racing Commission ignored regulations regarding the security of the testing procedure, specifically because Commission veterinarian-supplied water buckets were not used in the detention area as required by the regulations. The court stated that even if there had been a violation of the regulations, no harm resulted because Lieberman failed to present evidence that the bucket used was contaminated, resulting in the positive test.

Livingston v. Minnesota Racing Comm’n, 2004 WL 1445232 (Minn. Ct. App. 2004)

Horse disqualified from win after testing positive for albuterol. Owner complained he was not given notice of the hearing, but the court ruled that notice to the trainer sufficed as notice to the owner. Trainer also challenged the constitutionality of Minnesota’s trainers responsibility rule (which placed the burden on the trainer to prove innocence) due to its harshness. The court rejected that challenge, because requiring the trainer to guard the horse prior to a race promoted the integrity of racing.

Pennsylvania Division HBPA v. Mountainview Thoroughbred Racing Ass’n, 855 A.2d. 957 (Pa. Commw. Ct. 2004)

The Pennsylvania HBPA sued tracks for improperly adjusting horsemen’s purse accounts to reflect money advanced for certain restricted races. The tracks filed third-party complaints against the Pennsylvania Horse Racing Commission and Horse Breeder’s Association. The court dismissed the third-party com-plaints on the basis that the Commission and Association were not required to reimburse the tracks.

The Penobscot Nation v. Maine Harness Racing Comm’n, 2004 WL 1434510 (Me. Super. Ct. 2004)

Indian Tribe and concerned citizens group each sought to intervene in a condi-tional license procedure for the Bango Racetrack when it changed ownership. The court upheld the denial of intervention on the basis of timeliness, but also

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held the interveners had insufficient standing to intervene. The Indian tribe’s interest in rival casinos was not considered a substantial and direct interest. The citizens group’s concern about increased crime, property devaluation, and other social ills was also considered an insufficient substantial and direct interest to justify intervention.

Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004)

Racehorse owner Robert Perez requested a stewards’ hearing on his assertion that the stewards were fixing races by manipulating the number of horses in certain races. At the meeting, he became verbally abusive and disruptive, and after being warned, was fined $5,000, later reduced to $3,000. The fine was authorized by a regulation prohibiting “any action detrimental to the best in-terest of racing.” Perez sued the Racing Board in federal court, asserting that his First Amendment and due process rights were violated. The district court granted summary judgment to the Racing Board.

The Second Circuit upheld the summary judgment. It ruled that Perez’ First Amendment rights were limited because the meeting was a non-public forum. His conduct made the meeting impossible to conduct. He also challenged the regulation as void for vagueness. The court rejected that challenge because such a restriction must be looked at in the context of the “norms of the racing community” and because Perez was given a warning. One of Perez’ more interesting arguments was that the harness racing regulations specifically prohibited abusive language, but the Thoroughbred regulations did not. The Second Circuit rejected this argument in a footnote, stating that the “acute problems attending harness racing are distinct from those that might plague the Thoroughbred industry.”

Robertson v. Ohio State Racing Comm’n, 2004 WL 63618 (Ohio Ct. App. 2004)

Ohio prohibited racing of horses that had any detectable level of prescribed substances, including albuterol. Trainer Don Robertson moved FIRST CHOICE from California to Ohio to race, and administered albuterol with an aerosol mask with the understanding from veterinarians that detectable levels would be out of the horse’s system in 48 hours. After winning a race, however, FIRST CHOICE tested positive.

The trainer was charged and suspended for violating the medication rules. The sanctions were upheld by the court on the basis that the statute clearly proscribed any detectable level of medication at the time of the race, and the trainer was responsible based on the absolute liability rule.

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Southern Bluegrass Racing, LLC v. Kentucky Horse Racing Auth., 136 S.W.3d 49 (Ky. Ct. App. 2004)

Southern Bluegrass Racing was denied a license by the KHRA to construct and operate a Quarter Horse racing track in Williamsburg, Kentucky. Southern Bluegrass had presented to the KHRA sophisticated economic studies and other evidence showing the positive impact the track would have for the community. However, Churchill Downs and Turfway Park authorities testified that the track might have an adverse impact on the Kentucky off-track betting system, from which established tracks profit.

On appeal, Southern Bluegrass asserted that the decision of the KHRA was arbitrary as not supported by substantial evidence. The court of appeals held that the speculative testimony of the other tracks was sufficient enough evidence, even in contrast to the quality of evidence presented by Southern Bluegrass. It also held that even though Southern Bluegrass met all the statutory require-ments fo track, a license was still discretionary with the Authority.

2003

Baffert v. California Racing Bd., 332 F.3d 613 (9th Cir. 2003)

Trainer Bob Baffert was suspended by the California Horse Racing Board when the urine sample and the split sample tested positive for morphine, which Baffert attempted to explain was a result of environmental contamination. A blood sample was also taken, but at the Board hearing six months later, Baffert learned that the blood sample had been destroyed. He sued to enjoin the Board under 42 USC § 1983. The district court accepted jurisdiction and granted the injunction. The Ninth Circuit reversed on the basis that the Younger v. Harris abstention doctrine applied. The Younger doctrine holds that there is an exception to federal jurisdiction when there is a pending state proceeding that implicates important state interests and provides the party an opportunity to raise federal claims.

Balmoral Racing Club Inc. v. Gonzales, 788 N.E.2d 269 (Ill. App. Ct. 2003)

Racetracks sued Illinois Racing Board because the Board failed to refund overpayment of taxes, which should have been refunded and distributed. The trial court dismissed the suit because it was barred by sovereign immunity. The appeals court reversed, holding that the suit was not against the state, but was a suit “that contests the conduct of State officials in allegedly proceeding in contravention of their duties.”

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Capone v. New Jersey Racing Comm’n, 817 A.2d 995 (N.J. Super. Ct. App. Div. 2003)

Racing Commission attempted to reverse decisions of an Administrative Law Judge that found the accused trainers to have not committed the charged violations. The court decided that the reversals were ineffective because the Commission delayed issuing the required findings of fact and conclusions of law until after the time limit imposed on an agency.

Cathey v. Louisiana State Racing Comm’n, 855 So. 2d 414 (La. Ct. App. 2003)

The Racing Commission determined that trainer violated racing regulations by supplying funds to another to claim a horse, and employing an unlicensed individual to assist him. The lower court reversed on the basis that the evidence was unconvincing. The court of appeals reversed the trial court and reinstated the Commission’s decision, holding that the trial court was required to give deference to the administrative agency’s determination of the credibility of witnesses.

Doyle v. Massachusetts State Racing Comm’n , 2003 WL 22481388 (Mass. Super. Ct. 2003)

Horsemen sought to enjoin licensed track from conducting a harness race because track was not properly so licensed. The court agreed with the horse-men, holding that although the state license was not specific as to the types of race allowed, the pervasive regulatory scheme differentiated between the types of races. It further ruled that the issuance of a license without a public hearing was improper.

Hennessey v. Dep’t of Business and Prof’l Regulation, 839 So. 2d 698 (Fla. 2003)

Horse trainers challenged Florida’s “Absolute Insurer Rule” as an invalid exercise of delegated legislative authority. The Absolute Insurer Rule makes the trainer the absolute insurer of the condition of horses entered into any race held at a Florida track. Thus, where horses are determined to have received a prohibited substance in connection with the race, the trainer is liable regardless of whether he was shown to have participated. The Florida Court of Appeals upheld the Administrative Law Judge’s findings that the rule was valid. The court and the ALJ ruled that the rule was the only practical way to deal with the admission of impermissible substances, as “it would be almost impossible to prove guilty knowledge or intent in cases involving a reported positive test for

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an impermissible substance.” The court also noted that 35 tracks were covered by only six investigators, therefore making it impossible for investigators to accurately determine the actual involvement of the trainer in the administration of the prohibited substance.

MEC Pennsylvania Racing, Inc. v. State Horse Racing Comm’n, 827 A.2d 580 (Pa. Commw. Ct. 2003)

Objector to applicant for race meeting license was denied a formal hearing after requesting one under Pennsylvania administrative law. The court of appeals agreed that a formal hearing was required and remanded.

Racing Ass’n of Central Iowa v. Fitzgerald, 648 N.W.2d 555 (Iowa 2002) cert. granted 123 S. Ct. 963 (2003), 539 U.S. 103 (2003)

The state of Iowa enacted legislation permitting racetracks to operate slot machine gambling. However, in a concession to riverboats, the tax rate was higher for the race track slot machines than for riverboat slots. The tracks challenged the differential as violating Equal Protection.

The Supreme Court of Iowa first determined that the tracks and the riverboats were in the same class. The court rejected the argument made by the state that tracks and riverboats were in different classes because “one was is land-based where as the other floats on water.” Persuasive to the court was the fact that the bulk of revenue of both tracks and riverboats came from slot machines. In fact, the track suffered losses from horse racing.

Because they were in the same class, the court then had to determine if a rational reason existed for the disparate treatment.

The court held that the differential could not be rationally related to the main purpose of the legislation or to the intent behind authorizing race tracks to operate in Iowa. It simply gave the riverboats a competitive advantage. The Supreme Court of Iowa, therefore, in a split decision, held that the statutory discrimination was unconstitutional.

Certiorari was granted and the U.S. Supreme Court, Justice Breyer, held that: 1) state court decision rested upon federal grounds sufficient to support juri-sidiction and 2) the tax did not violate Equal Protection.

Sachs v. New York State Racing and Wagering Bd., 1 A.D.3d 768 (N.Y. App. Div 2003)

Commission revoked veterinarian’s license for administering prohibited sub-stances to harness horses. The veterinarian challenged the ruling on the basis

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that the Hearing Officer was biased because he was a former investigator for the Commission. This challenge was rejected. The veterinarian also challenged the ability of the commission to amend the charge against the veterinarian slightly. This challenge was also rejected because the veterinarian had fair notice of the charges.

Tackett v. Marion County Fair Bd., 272 F. Supp. 2d 686 (N.D. Ohio 2003)

Horse trainer was banned from fairgrounds after getting into an altercation. Four years later, he sued under 42 USC § 1983. His suit was dismissed based on the 2-year statute of limitations. His argument that the statute was tolled during the “continued violation” period was rejected.

2002

Angelle v. Louisiana State Racing, 828 So. 2d 1153 (La. Ct. App. 2002)

The Louisiana State Racing Commission affirmed the steward’s findings against two trainers, Angelle and Arlene Laws, for “milkshaking” their horses. (Milkshaking is the administration of sodium bicarbonate, prior to a race, which has the effect of neutralizing lactic acid in the horse’s muscles, thereby improving the horse’s endurance for long races.) The milkshaking was determined indirectly, that is, by excessive levels of carbon dioxide in the blood. The court of appeals first determined that it could review the evidence de novo given the recent changes in the Louisiana regulations which remove the “manifest error” standard.

Upon review, it was determined that, despite the testimony of Dr. Kevin Cline to the contrary, the testing machines used were reliable and therefore they had confidence in the results. However, with respect to Laws, the Racing Com-mission failed to produce the quality control results of the machine for the day that the test was done. Therefore, the decision as to Laws was reversed, because the record as a whole did not prove the case based upon preponder-ance of the evidence.

The court also addressed the fact that milkshaking was not specifically pro-hibited by the regulations at the time of the races. The court agreed with the Racing Commission’s physician, however, that milkshaking was generally prohibited by the general rules against masking drugs and race-day drugs. The court further accepted the testimony of the LSU veterinarian that the levels of carbon dioxide detected could not be explained by natural occurrence or contamination.

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Boxie v. Louisiana State Racing Comm’n, 826 So. 2d 1183 (La. Ct. App. 2002)

Licensed horse owner was suspended by the Racing Commission for “attempted possession” of a “battery” used to shock horses. Apparently he was observed in the barn where the battery was located and observed trying to retrieve the battery. He challenged the regulation against attempted possession of a battery as beyond the Racing Commission’s statutory authority. The court of appeals, however, upheld the regulation.

Crissman v. Delaware Harness Racing Comm’n, 791 A.2d 745 (Del. 2002)

Crissman and Givens were charged with violating two commission rules – one prohibiting conduct which “may adversely reflect on the honesty and integrity of horse racing” and one prohibiting “improper conduct toward a race official – when they secretly tape recorded a conversation Crissman had with a steward. They challenged the rules as unconstitutionally vague. The Delaware court agreed.

Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231 (3d Cir. 2002)

Charles and Wendy Crissman were in the harness racing business. Shortly after Dover Downs hired a new general manager, the general manager sent to each of the Crissmans a letter informing them, without explanation, that they could no longer race at Dover Downs. The track refused to explain the exclusion. In later deposition testimony, the manager explained that he had heard rumors of doping and financial irresponsibility.

The Crissmans sued, claiming that their civil rights were violated and that the action of Dover Downs constituted state action. The Crissmans argued that the extensive state regulation and the flow of funds between Dover Downs and the states by virtue of video lottery operation made their exclusion “fairly attributed to the state.” Both the harness racing and the slot machines were heavily regulated by the state. The Third Circuit initially agreed with the Crissmans, but the en banc panel set aside that decision and stated that the actions of Dover Downs was not a state action.

In so doing, the en banc panel held that the extensive regulation of the state, and the flow of funds did not rise to the “symbiotic relationship “ that was deemed by the Supreme Court to be state action in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The court concluded: in summary, the presence of both these elements – regulation and flow of funds – that are separately unpersuasive in the state action inquiry does not amount to more

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than each alone; the combination brings no greater result – namely, no state action. Delaware is not associated in the harness racing or the video lottery operation, nor are the monies that flow to the state tied in any way to the conduct the Crissmans complained of. The deeper involvement and “inner dependence” present in a unique way in the fact pattern considered in Burton simply are not present here.

Gulfstream Park Racing Ass’n v. Gold Spur Stable Inc., 820 So. 2d 957 (Fla. Dist. Ct. App. 2002)

DEVIL’S CUP, while racing at Gulfstream Park, fractured a bone in his right front leg racing on the turf course. He later had to be put down. The owner of the horse, Gold Spur Stable, sued Gulfstream alleging negligence in the design, maintenance, and operation of the track. Gulfstream filed a third-party complaint against John Kimmel, the trainer of DEVIL’S CUP. Gulfstream claimed that Dr. Kimmel, as trainer, owed a duty to Gold Spur to protect the horse from unreasonably dangerous conditions. There was considerable amount of testimony concerning the duties and obligations of a trainer to the owner of a horse, and there was some testimony that the trainer is obligated to walk the turf course before each race, and it was up to the trainer to inspect the course to determine if there were any unsafe conditions.

Dr. Kimmel’s motion for summary judgment on Gulfstream’s claim for con-tribution and indemnification was granted. He successfully argued before the trial court that the claim against Gulfstream was for Gulfstream’s negligence in maintaining and operating a track, and he could not have any joint liability, therefore, could not be liable for contribution. With regard to indemnity, he argued that the indemnity clause in the Stall Agreement that he signed did not apply.

The court of appeals, however, reversed. It held that Dr. Kimmel could be liable for contribution, because there were genuine issues of material fact concerning whether he was negligent in failing to scratch DEVIL’S CUP before the race, thereby contributing to the horse’s injury. They rejected Dr. Kimmel’s asser-tion that contribution was inappropriate because of the difference between the negligence claim against Gulfstream and the negligence Gulfstream claimed against him. The court held that the claim arose out of the same transaction recurrence, and therefore, contribution was appropriate, despite the difference in the negligence claims.

The court also reversed with regard to indemnification. Dr. Kimmel claimed that the indemnification provision in the Stall Agreement that he signed could not be construed to require him to indemnify Gulfstream for its own negligence. Gulfstream argued that the Stall Agreement provided that Dr. Kimmel must

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indemnify Gulfstream, if Gulfstream and Dr. Kimmel were jointly negligent. The court agreed with Gulfstream’s view of the indemnity provision.

Hartman v. New Jersey Racing Comm’n, 800 A.2d 279 (N.J. Super Ct. App. Div. 2002)

A trainer of harness horses was suspended in New York after a horse tested positive for lidocaine. The New York suspension had the effect of suspending the trainer in New Jersey. However, the trainer never told the owners of the horse, not even the stewards in New Jersey were aware of the suspension due to the slowness of the notice from New York. Nevertheless, the trainer continued to race the horses in New Jersey.

The Racing Commission found out about the suspension and sought the forfei-ture of the winnings of the owners. The Administrative Law Judge ruled that such forfeiture was fundamentally unfair to the owners, who unquestionably did not know of the suspension. The Racing Commission accepted that fact, but held that the winnings had to be forfeited, stating that the owner’s recourse was against the trainer.

The New Jersey Appeals Court reversed. It first noted that the Commission’s regulations do have the effect of imposing strict liability on owners in some circumstances. But here, the court noted that the regulations did not impose such strict liability. Moreover, the owners were not negligent in not knowing of the suspension – not even the stewards had notice of the suspension. The court concluded as follows:

We are satisfied under the circumstances of this case the basic prin-ciples of procedural due process and fundamental fairness militate against the imposition of such a sanction against these owners. Even the Commission in its decision recognized the apparent fundamental unfairness of its decision, but suggested the remedy of the owners is against the trainer – which might prove an empty gesture.

People v. Lueth, 660 N.W.2d 322 (Mich. Ct. App. 2002)

Lueth was a track employee who permitted wagering on account, issuing vouchers without receiving cash. He also pocketed cash intended for deposit. He was convicted not only of embezzlement, but of violating Michigan’s horse-racing statute.

Lueth challenged the statute as an unconstitutional delegation of power. The Michigan Court of Appeals rejected the challenge. The court held that the standards need only be reasonably precise, particularly given that wagering

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Racing

on horses is not an inherent right. The regulations promulgated pursuant to the statute met that standard.

Pinero v. Pennsylvania State Horse Racing Comm’n, 804 A.2d 131 (Pa. Commw. Ct. 2002)

Pinero was one of nine jockeys that were charged by federal grand jury with bribery in connection with horse races. Eight of the nine jockeys plead guilty, but Pinero went to trial. Pinero was found not guilty and acquitted on all charges. Pinero was also charged by the Pennsylvania State Horse Racing Commission with bribery and race fixing. Pinero was ultimately suspended by the Commission for a period of five years.

Pinero appealed that decision on the basis of the res judicata (issue preclu-sion) effect of the criminal acquittal. The Pennsylvania Court of Appeals ruled, however, that the doctrine of res judicata did not apply, as the Horse Racing Commission was not a party to the criminal action. Moreover, under Pennsylvania law, it is well established that resolution of criminal charges in favor of a criminal defendant does not bar a subsequent civil or administrative proceeding concerning the same underlying conduct.

Stokes v. California Horse Racing Bd., 119 Cal. Rptr. 2d 792 (Cal. Ct. App. 2002)

The California Horse Racing regulations require a horse to work out at the track at least once within the thirty days preceding a race. Stokes, a licensed trainer, delegated his brother the responsibility of arranging the workouts for a horse named DEVIL’S MISTAKE. Unfortunately, instead of working DEVIL’S MISTAKE during the thirty-day period, the brother worked a different horse he misidentified as DEVIL’S MISTAKE. When DEVIL’S MISTAKE ran and won a horse race at Los Alamitos, he fractured his knee and was euthanized. Subsequent investigation determined that DEVIL’S MISTAKE was not worked as required and therefore was ineligible to run in the race.

The California Horse Racing Board charged Stokes with violating the rules. Stokes argued that because the failure was a result of a mistake, it was inap-propriate to discipline him under a “strict liability theory.” The Administrative Law Judge and the court rejected that argument stating that the trainer is responsible for identifying a horse prior to a workout, and that the delegation of the duty did not relieve Stokes of that obligation.

394


Zito v. New York State Racing and Wagering Bd., 300 A.D.2d 805 (N.Y. App. Div. 2002)

Trainer Nick Zito was fined and suspended when a second place finisher he trained tested positive for lidocaine, which is not allowed to be administered one week prior to a race. The regulation placed a presumption of liability on the trainer. Zito challenged the suspension on the basis that because the blood test was taken 75 minutes after the race, and lidocaine shows up in blood 30 minutes after it is administered, it could not be proven that the lidocaine was not administered before the race. The court ruled that this was speculative. It also ruled that his fine and suspension was not excessive.

2001

American Greyhound Racing v. Hall, 146 F. Supp. 2d 1012 (D. Az. 2001)

Horse and dog track owners sued to enjoin the Arizona governor from allow-ing Indian tribes to expand gaming in Arizona. The district court held that the Arizona statute that delegated the authority to the governor was an uncon-stitutional delegation of legislative power. The Equal Protection challenge, however, was rejected.

Anobile v. Pelligrino, 274 F.3d 45 (2d Cir. 2001)

During an administrative search of Yonkers Raceway, performance-enhancing drugs were located in racetrack facilities and dorm rooms. The Second Circuit agreed with the district court that the search was authorized under the New York statutes and the New York Racing and Wagering Board’s regulations. However, the search of the dormitory rooms, which were used solely as residences for raceway employees, violated the Fourth Amendment.

Bame v. City of Del Mar, 104 Cal. Rptr. 2d 183 (Cal. Ct. App. 2001)

The court upheld a city ordinance that permitted taxing racing events at the Agricultural District’s fairgrounds.

Baxter v. Delaware Harness Ass’n, 2001 WL 167849 (Del. Super. Ct. 2001)

The Delaware Harness Racing Commission found that Baxter had violated its rules by administering tetramisole, which can interfere with testing procedures.

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However, the DHRC’s own guidelines stated that tetramisole was “unclassi-fied.” The appeals court thus reversed the decision as violating due process.

Hickey v. Riera, 774 N.E.2d 1 (Ill. App. Ct. 2001)

Hickey was a harness horse trainer who administered a substance that, suppos-edly unbeknownst to him, contained a bronchodilator that was not approved by law. The stewards suspended Hickey for 180 days. A 1994 hearing before the Hearing Officer appointed by the Illinois Racing Board resulted in a rec-ommended 60-day per horse suspension. The Board thus suspended Hickey for 360 days.

Hickey appealed to the circuit court, which reversed the Board’s decision since the Board’s suspension order did not carry by the required majority vote.

On remand, the Board again voted to suspend Hickey for one year. Hickey filed another complaint in the circuit court, which ruled that the Board had exceeded its authority in suspending Hickey for longer than the suspension ordered by the stewards, and remanded with directions to suspend Hickey for 180 days. Both Hickey and the Board appealed.

The court of appeals first ruled that it had jurisdiction to hear the matter, de-spite the circuit court order being a remand. It then ruled that Hickey’s due process rights were not violated by the Board’s reliance on the record before the Hearing Officer, and that the Board did not act arbitrarily in failing to alert Hickey of a positive finding with respect to one horse who had been tested earlier than the others.

The court of appeals also ruled that the Board did not violate Hickey’s due process rights in doubling the penalty. However, the court reversed the remand, holding that the circuit court erred in second-guessing the penalty imposed by the Board.

Jackson v. Arkansas Racing Comm’n, 34 S.W.3d 740 (Ark. 2001)

Stewards imposed sanction against owner of VALHOL, which won the Arkan-sas Derby at Oaklawn, because the jockey used an electrical device, which was prohibited. The owner claimed that the sanctions were unfair and a violation of due process because he was not in collusion with the jockey. The Supreme Court of Arkansas ruled that sanctions could be imposed without fault. The owner also asserted that Oaklawn owed a duty to horse owners as a result of their power to search and investigate. But the court held that the track had no duty to protect owners from the wrongful acts of their jockeys.

396


Register v. Louisiana State Racing Comm’n, 779 So. 2d 93 (La. Ct. App. 2001)

After a hearing, the stewards determined that Register’s license should be suspended for six months for administering scheduled drugs, and referred the matter to the Louisiana State Racing Commission. The LSRC suspended Register for 15 days and fined him $5,000. He appealed the sanctions as ex-cessive. The court of appeals rejected the contention, particularly in light of Register’s prior suspensions.

Ryan v. New Jersey Racing Comm’n, 764 A.2d 486 (N.J. Super. Ct. App. Div. 2001)

Ryan was the winner of a trifecta at Meadowlands, but had his ticket stolen. The trial court ruled in favor of Ryan, but the court of appeals reversed on the basis that the racing regulations required the physical delivery of the ticket, without exception.

2000

Chung v. New York Racing Ass’n, 714 N.Y. S.2d 429 (N.Y. Dist. Ct. 2000)

A bettor left racing voucher in automated machine. By the time he sought a stop on the voucher, the vouchers had been exchanged for cash. The court held that the voucher was bearer paper and the bettor had no recourse.

Davric Marine Corp. v. Bangor Historic Track Inc., 751 A.2d 1024 (Me. 2000)

Racetrack complained of its classification by the State Harness Racing Com-mission as a commercial track, a classification that impacted its off-track betting percentage. However, the court dismissed the complaint because the track failed to appeal within thirty days of the Commission’s decision. The fact that a portion of the hearings was reopened on a later date did not prevent the requisite time from running from the date of the actual decision.

Morgan v. Wyant, 2000 WL 246603( E.D. Mich. 2000)

Plaintiffs were investors in a corporation that applied for harness racing dates with the Michigan Racing Commission. The Commission granted the applica-tion of another applicant, however. Plaintiffs sued alleging sex discrimination.

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The district court granted summary judgment on the basis that “this is a horse case.” It found that there was no evidence of discrimination, particularly since the genders of the shareholders were not disclosed in the application, and because the applicant was a corporation, which had no gender.

Patin v. Munster, 760 So. 2d 447 (La. Ct. App. 2000)

Jockey was notified a mere five hours before a license-revocation hearing by the stewards. After the stewards’ decision, jockey sued, alleging that his due process rights were violated. The court refused to grant an injunction, holding that the stewards’ hearing was not required to afford full-blown due process, and jockey could have appealed the decision to the Racing Commission, which would have granted him a full due-process hearing.

Suburban Downs, Inc. v. Illinois Racing Bd., 735 N.E.2d 697 (Ill. App. Ct. 2000)

Suburban Downs applied for harness racing dates for year 2000, but was turned down supposedly because its rails were not as safe as those of competing tracks. Suburban Downs sued on the basis that its due process rights were violated. The court of appeals upheld the circuit court’s determination that racing dates were not a “claim of entitlement” under state law. Therefore, Suburban Downs had no property right and thus there could be no due process violation.

1999

Belcher v. State Harness Racing Comm’n, 728 A.2d 425 (Pa. Commw. Ct. 1999)

Belcher was denied an owner/trainer license in Pennsylvania because he had been previously charged in Ohio with “milkshaking.” The charges in Ohio, however, had resulted in a settlement, and Belcher was never actually suspended. Although the Commission stated that Belcher could re-apply for a license, the Pennsylvania court held that the Commission was required to issue the license.

Carinda v. State, 734 So. 2d 514 (Fla. Ct. App. 1999)

Veterinarian was convicted of using drugs (“milkshaking”) in a racehorse. The court held that the excuse that he used the drugs to ease the pain experienced by the horse, rather than enhancing performance, was no defense.

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Florida Horsemen Benevolent & Protective Ass’n v. Rudder, 738 So. 2d 449 (Fla. Dist. Ct. App. 1999)

Non-members of the Florida HBPA sued to declare Florida’s statute that re-quired 1% of the purse pool paid to the HBPA unconstitutional. The Florida Court of Appeals ruled that the statute, which required payment to a private association, was an unconstitutional exercise of police power.

Mancik v. Racing Comm’r, 600 N.W.2d. 423 (Mich. Ct. App. 1999)

A warrantless search of a trainer’s stable turned up unauthorized drugs, and following a steward’s ruling, the trainer’s license was suspended. The trainer appealed on the grounds that the search was unconstitutional. The circuit court agreed, but the court of appeals reversed. The court held that the search was pursuant to “consent” because each year, the trainer had to submit an occu-pational license application, which included language that allowed searches pursuant to a Michigan statute. The court further held that the searches autho-rized by the statute were not just limited to searches at the track, but included off-track areas as well.

Maryland Racing Comm’n v. Belotti, 744 A.2d 558 (Md. Ct. Spec. App. 1999)

Ms. Belotti owned a racehorse named LA BEAU. LA BEAU raced at Laurel, and when it finished first, was tested for drugs. It was determined that LA BEAU had Lasix® in its system. LA BEAU was not certified by the Racing Commission to receive Lasix®, so it was disqualified, and the purse monies had to be forfeited. The circumstances under which LA BEAU inadvertently received the Lasix® were described by the trial court as a “comedy of errors”, some of which were made by the Commission staff itself. Indisputably, Ms. Belotti was an innocent owner. The trial court ruled that the Commission’s decision was erroneous because the application of the irrebuttable presump-tion (the “Absolute Insurer Rule”) to an owner was unconstitutional under the Maryland constitution. The court also ruled that Lasix® was not a perfor-mance-enhancing drug, and Ms. Belotti had not been afforded proper notice of the stewards’ hearing.

On appeal, the court of appeals held that the “Absolute Insurer Rule” was applicable to trainers and had been repeatedly upheld. Because her purse money was forfeited, however, does not mean that the Absolute Insurer Rule was applied to Ms. Belotti, an owner, but the forfeiture was nevertheless within the discretion of the Racing Commission. The appeals court also held that it did not matter whether Lasix® was a performance enhancing drug, as the regulation prohibited any “drug.” As for the claim that Ms. Belotti had not

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been given notice of the stewards’ hearing (the notice went to the trainer), the court of appeals ruled that her due process rights were not violated because the Commission held a de novo hearing. The court of appeals thus reinstated the Commission’s determination.

Oklahoma Quarter Horse Racing Ass’n v. Remington Park, Inc., 987 P.2d 1216 (Okla. Civ. App. 1999)

Racing Association sued track for conversion for failing to segregate purse fund as required by state law. The appellate court ruled that the Association had no standing to sue.

Tennessee Downs, Inc. v. Gibbons, 15 S.W.3d 843 (Tenn. Ct. App. 1999)

Tennessee Downs sued in state chancery court under 42 USC § 1983 to enjoin the state attorney general from prosecuting it for operating a pari-mutuel race track. The prosecution was threatened when the Racing Commission was legislated out of existence. The court of appeals ruled that the chancery court had no jurisdiction to enjoin a threatened prosecution.

Zollinger v. Ohio State Racing Comm’n, 729 N.E.2d 808 (Ohio Ct. App. 1999)

Trainer fined and suspended, and his horse was disqualified from the race, when the post-race blood test revealed the presence of furosemide. The train-er asserted on appeal that the sanctions were excessive. The challenge was unsuccessful.

1998

Winner v. Ohio State Racing Comm’n, 1998 WL 178566 (Ohio Ct. App. 1998)

Trainer had his license suspended due to an unsatisfied judgment for failure to pay a board bill. The trainer challenged the decision, claiming it was unautho-rized under the Ohio statutes, which permitted the suspension of a license for defaulting on race-horse-related obligations. The court of appeals upheld the decision, holding that race-horse-related does not necessarily mean race-related.

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401

Sale, Fraud, & Warranty Issues

SALE, FRAUD, & WARRANTY ISSUES

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403


2018







2017



404



Zendejas v. Redman, 2017 WL 2547202 (S.D. Fla. 2017)

Purchaser of a show jumping horse was disappointed with the performance of the horse, having being told by the seller that the horse was behaviorally and physically fit to compete at the Grand Prix level of show jumping. The purchaser sued the seller and his agent, alleging breach of contract as well as fraud and negligent misrepresentation. Defendants moved for summary judg-ment on the tort claims, asserting they were barred by the economic loss rule. The court extensively discussed precedent on whether animals were products, and concluded that under compelling authority that horses, like other animals, were not products and thus the economic loss rule (applicable to products lia-bility claims) did not apply. The court also overruled the motion for summary judgment of the agent, holding an agent can be liable for torts of fraud and negligent misrepresentation even where there is a disclosed principal.

2014

Grant v. Tucker, 2014 WL 4851793 (M.D. Tenn. 2014)

Michael and Lisa met on a dating website called Equestrian Singles, and became romantically involved. Michael eventually borrowed money with a mortgage on his parents’ house to invest in what was supposed to be a joint horse business. Lisa used the money to purchase property only in her own name. After they broke up, Michael sued Lisa.

Following a bench trial the court found that Lisa committed deceit and fraud by misrepresenting her intentions. The court also held that a fiduciary duty existed between the couple and that Lisa breached it. Further, the court found that Lisa had been unjustly enriched, and awarded Michael a constructive trust on the property, in addition to damages.

2013

In re ClassicStar Mare Leasing Litigation, 2011 WL 3608456 (E.D. Ky. 2011), aff’d 727 F.3d 473 (6th Cir. 2013)

Investors in the ClassicStar Mare-Leasing Program sued many of those in-volved in its promotion, alleging fraud and RICO, contending that the values were overstated, the program was oversold, the tax benefits misstated, and an elaborate cover-up occurred. The defendants moved to dismiss for failure to

405


state claims. The district court denied the motion as to RICO and fraud, al-though it did dismiss allegations of negligent misrepresentation by those who did not actually make the misrepresentations. Subsequently, the district court granted summary judgment to the plaintiffs in the RICO, fraud, and breach of contract claims, accepting the plaintiff’s’ damages calculation of $16,468,000, which were trebled under RICO.

On appeal, defendants argued that there was a disputed issue of fact as to de-fendants’ intent to commit fraud. The court noted that the disparity between the actual value of the mares leased and the amount leased for was so great it was persuasive enough to support that no reasonable juror could not believe that the defendants were unaware they were overselling the mare lease interests. In addition, the evidence clearly supported that defendant GeoStar exercised considerable control over the operations of ClassicStar.

Defendants also challenged causation because the plaintiffs were knowing participants in the scheme. The court noted that there was no dispute that the plaintiffs were never told that the program did not contain anywhere near enough horses to fulfill the lease obligations. Further, the plaintiffs would not have been aware that the promised tax deductions were misrepresented. Therefore, the district court properly concluded that there was causation.

Defendants also challenged the finding that the group of defendants consti-tuted an “enterprise” under RICO. After reviewing the inconsistent case law on what constitutes the “distinctiveness” requirement of the actor-enterprise distinctiveness requirement, the court held that factually the entities in the case showed sufficient distinctiveness from the enterprise.

Lane-Lott v. White, 126 So. 3d 1016 (Miss. Ct. App. 2013)

Lane-Lott entered into a contract with Gerald to swap her Quarter Horse mare for a pregnant horse named KEEES TIME to Skeik. The exchange took place. Unknown to the parties, the pregnant mare delivered to her was not KEEES TIME, a result of a prior mix-up. Lane-Lott found this out when she tried to register the foal with the AQHA, and found out the DNA did not match. Ger-ald offered a replacement horse, which offer she rejected. She sued for fraud.

After a jury trial, the trial court determined that there was no evidence of fraud, but UCC 2-613 governed because there was a mutual mistake in the drafting. The court of appeals agreed that UCC 2-613 governed, but the mutual mistake was in the identity of the mare everyone thought was KEEES TIME. Therefore, under that UCC provision the contract was void, and Lane-Lott was entitled to be put back in the position she was in before the contract. That was technically impossible because the horse Lane-Lott traded was not available to be returned. Because she did not cooperate in taking a replacement horse, the court dismissed her claim. The dismissal was upheld on appeal.

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2010

Dixon v. Herman, 2010 WL 3038598 (Tex. App. 2010)

Purchaser of Belgian Warmblood received a Bill of Sale that stated the horse was “approximately 11” years of age. He later determined that the horse was 13 years of age when purchased, and demanded his purchase price back. When that was refused, he sued the seller for breach of warranty and fraud. The trial court granted summary judgment to the seller because the undisputed facts revealed that the seller had never made such a representation prior to the purchase, and the bill of sale itself was not a pre-purchase representation because it was delivered upon purchase.

FDIC v. Fedorov, 2010 WL 3419454 (E.D. Mich. 2010)

FDIC sued borrower for false representations in connection with a loan, when loan agreement stated collateral was a horse. Borrower did not use loan proceeds to buy the horse. Borrower’s motion for summary judgment, based on its interpretation that the loan documents did not specifically require the purchase of the horse, was denied.

2008

Wheeler v. Bishop, 2008 WL 110452 (W.D. Va. 2008)

Wheeler purchased a hunter-jumper named CANADA DRY from Bishop, in an “as is” sale. After the purchase Wheeler alleged that the horse was unsuitable because it had a dangerous predisposition of suddenly lowering its shoulder and bucking after a jump. Wheeler sued for fraudulent concealment. Bishop moved to dismiss on the basis that the sale was an “as is” sale. The court denied the motion, holding that a warranty disclaimer does not prevent a fraud claim.

2007

Kelton v. Hollis Ranch, LLC, 927 A.2d 1243 (N.H. 2007)

Buyer of horse at auction was told by seller that the horse was a gelding. In fact, it had an undescended testicle. Buyer sued under the Consumer Protection Act to recoup the cost of removal of the testicle. The court granted summary judgment on the basis that the undisputed evidence showed that the seller was unaware of this condition. The court of appeals affirmed. It held that the Consumer Protection Statute was not a strict liability statute for innocent misrepresentations, but required a showing of knowledge on the part of the party making the representation.

407


Manula v. Wheat, 2007 WL 2926211 (E.D. Ark. 2007)

Owner of new horse camp for beginning riders entered into a contract with a ranch to purchase 30 unspecified horses. Although the contract was reduced to writing, many terms were unstated. The horses selected by the seller were largely unsuitable. The buyer sued.

The court held that the warranty of fitness was breached. It ruled that UCC 2-607 applied to the measure of damages. It held that the later resale price of the horses was not necessarily determinative because it is the value at the time of acceptance that is important. It held that lost profits were recoverable where the seller knew the reason for the purchase and the horses were deliv-ered just prior to the commencement of the breeding season. The lost profits for subsequent years were determined to be unrecoverable because the buyer could have replaced the unsuitable horses for suitable horses.

Polansky v. Anderson, 2007 WL 4162807 (N.D. Ill. 2007)

Polansky purchased various Standarbred horses from William Robinson largely upon the advice of a horse trainer, and purchased other horses from Robert Waxman on the urging of his agent, Joseph Anderson. When the performance of the horses fell far short of his expectations, Polansky sued, claiming that the prices were inflated, and that some undisclosed financial transactions occurred as well.

In an earlier decision, Polansky’s claim against Robinson was dismissed for lack of personal jurisdiction, as none of the statements made by Robinson were alleged to have been made in Illinois. Polansky’s claim against Anderson for fraud was dismissed for failure to plead with particularity. His claim for breach of fiduciary duty was dismissed because the fact that Polansky put trust in the agent for the seller does not give rise to a fiduciary duty. Polansky v. Anderson, 2005 WL 3557858 (N.D. Ill. 2005).

After amendment of Polansky’s claim, which was upheld as stating a claim, (see Polansky v. Anderson, 2006 WL 2038603 (N.D. Ill. 2006)), Anderson moved for summary judgment. The court first struck affidavits of trainers who were purported experts on value because they fell short of demonstrating sufficient expertise to value horses. The court then concluded that there were no facts sufficient to show that a fiduciary duty existed. The assertion that the owner/trainer relationship with the agent Anderson did not give rise to a fiduciary duty. Nor did the fact that Anderson was consulted concerning the transaction create a fiduciary relationship. The court did not, however, grant summary judgment on the fraud claim, as there were issues as to concealment.

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2006

Moore v. Landes, 2006 WL 2919064 (Ky. Ct. App. 2006)

Moore was the high bidder for a horse at the Fasig-Tipton sale in Timonium, Maryland. Although his agent had the horse inspected prior to the auction, the inspection did not reveal that the horse had undergone invasive joint surgery to correct OCD lesions a year prior to the auction. Under the conditions of sale, that corrective surgery was required to be disclosed by the seller. When the buyer found out, the seller stated the non-disclosure was inadvertent and offered to recognize a rescission of the horse. The buyers, however, elected to keep the horse and sue for damages.

Suit was field in Maryland state court, then removed to federal court, where the court ordered arbitration in Lexington, Kentucky because such arbitration was mandated under the Condition of Sale. The arbitrator ruled that the Conditions of Sale only permit rescission as a remedy (absent actual fraud), and thus no claim for damages was actionable.

The state trial court affirmed the award, and the buyer appealed to the Kentucky Court of Appeals asserting that the arbitrator made an award “in manifest disregard of the law” and should be set aside as a matter of public policy.

Despite the applicability of the Federal Arbitration Act, the Kentucky Court of Appeals treated the appeal much like a normal appeal from a court decision. It first held that Maryland recognized a cause of action for negligent misrep-resentation, which usually permitted an election of remedies. But is also held that Fasig-Tipton’s conditions could foreclose a non-rescission remedy. Thus the award was consistent with Maryland law.

The court also rejected the public policy argument, rejecting the contention that the award failed to stem an epidemic of deception in the horse business.

State v. Berry, 137 P.3d 500 (Kan. Ct. App. 2006)

Berry was sued by the state in connection with three transactions. The first was the sale of a horse to Raymond Sawyer. The horse was advertised as a roping horse, but turned out to be unsuitable for that purpose. There was a dispute over whether Berry agreed to take the horse back or just find a new buyer.

The second transaction was a sale of a horse to Gannaway, a riding instructor. The contract had a clause that permitted return of the horse if the veterinary inspection revealed any “defects, imperfections, abnormalities, deformities, irregularities, illnesses, or diseases that may inhibit or affect the health, sound-ness, performance ability, or resale ability of the horse.” The vet opined that the horse was unsuitable for jumping. Gannaway demanded her money back. Berry refused.

409


The third transaction involved the sale of a herd of cattle. The transaction, although advertised in Kansas, occurred in Missouri. The deal fell through because Berry did not actually own the herd.

The state sued under the Kansas Consumer Protection law, alleging “uncon-scionablity” and deception. At the close of the evidence, the court directed a verdict for the state.

On appeal, the court held that there was jurisdiction over the cattle transaction even thought the transaction occurred in Missouri. The court did not explain how this constituted a consumer transaction. But the court held that a directed verdict was improper because the jury should have been allowed to determine the conflicting evidence as to whether Berry had actually represented himself as a broker rather than owner of the horses.

The court also reversed as to the Gannaway transaction. The court did not explain how this sale was a consumer transaction. But the court held that a directed verdict was improper because the jury should have determined whether there was actually a misrepresentation, as opposed to a breach of contract.

The court upheld the directed verdict on the Sawyer transaction, again failing to explain how the transaction was a consumer transaction. The directed verdict was upheld because the verdict was based on a determination of unconscio-nability rather than deception, and the determination of unconscionability is for the court, not the jury.

2005

Randazzo v. McCarthy, 2005 WL 2361588 (Conn. Super. Ct. 2005)

Plaintiff bought a horse for his daughter to ride, but two weeks after the purchase the horse was diagnosed by a vet as having partial blindness, which was expected to get progressively worse. Plaintiff sued for fraud and breach of implied warranty. Although the veterinarian testified that the condition had existed long before the sale, there was no evidence that the seller knew of the condition, so the fraud count was dismissed. However, the trial court found for the plaintiff on the implied warranty count, finding that the seller, who had sold hundreds of horses previously, was a merchant and the UCC’s Article 2 warranty provisions applied.

Raudat v. Leary, 868 A.2d 120 (Conn. App. Ct. 2005)

Plaintiff, purchaser of a horse, brought a claim for misrepresentation on the basis that although the seller stated that the horse was “green broke,” he did not reveal the known tendency of the horse to buck. The verdict in favor of

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the plaintiff was reversed, because testimony about meaning of the horse term (“green broke”) was expert testimony, thus prior disclosure was required.

2004

Brennan v. Shapiro, 785 N.Y.S. 2d 100 (N.Y. App. Div. 2004)

Buyer sued seller of horse for breach of warranty. Summary judgment was granted seller on the basis of the bill of sale, which provided that the sale was “as is.” The appellate division affirmed the summary judgment.

Jewett v. Hertrich, 2004 WL 1487105 (Ky. Ct. App. 2004)

Buyers of stallion shares entered into an agreement that required them to pur-chase mortality insurance, but a separate document gave an unfettered right to rescind for a one-year period. Buyers did not procure the insurance and the stallion died in the one-year period. The trial court held that the buyers were entitled to their money back. The court of appeals reversed, holding that failure to fulfill the condition to procure insurance prohibited rescission.

Morningstar v. Hallett, 858 A.2d 125 (Pa. Super. Ct. 2004)

Hallett bought from Morningstar a horse from, advertised as an 11-year Thor-oughbred. She signed a contract stating that she was accepting the horse “as is.” After taking possession and writing a check for the purchase price, she determined that the horse was actually 16 years old, and stopped payment on the check. The seller sued for the purchase price on the grounds of breach of contract. Hallett countered with a fraud claim. The trial court granted summary judgment to Morningstar on the basis of the “as is” clause in the contract. The appeals court reversed, holding that the “as is” clause was ineffective to eliminate an express warranty; it only disclaimed implied warranties as to the condition of the horse. The court also held that Hallett had the right to pursue her fraud claim because an “as is” clause is not necessarily preclusive of an action for fraud.

2002

Chick v. Brimm, 2002 WL 31999427 (Del. Com. Pl. 2002)

Brimm, through its agent consignor, consigned a Standardbred horse to a small harness horse sale auction in Delaware. Soon after purchasing the horse, the buyer, Francis Pitts, determined that the horse was lame and had previously broken a bone. Pitts rejected the horse. The sales proceeds were paid by the

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auction company into court in an interpleader action. Because the consignor refused to accept the return of the horse, Pitts had to hold onto the horse for two years while litigation ensued.

Pitts asserted that there was a breach of warranty and that he rightfully reject-ed the horse. Brimm maintained that the claim was barred by the warranty disclaimer and the “as is” clause in the catalog. However, the consignment form required the selling consignor to list any broken bones. The court ruled that the “as is” warranty disclaimer was applicable only to the auctioneer, and therefore there was a not a conflict between the “as is” clause and the express warranty. It further held that if there was a conflict, the express warranty would take precedence over the disclaimer.

Brimm also claimed that the failure of Pitts to x-ray the horse prior to the auc-tion barred its claim. The court noted, though, that there was uncontradicted testimony that it was not customary practice at relatively small horse sales to have an x-ray of a horse prior to the sale, “but it is the practice at major annual sale.” Therefore, Pitts made a reasonable inspection of the horse under the circumstances. The court also held the Pitts rejection was seasonable, and that it was made shortly after discovering the late defect. In addition, the court awarded Pitts the cost of caring for the horse for the two years he held after notifying Brimm of the rejection.

Hurwitz v. Strain, 773 N.E.2d 478 (Mass. App. Ct. 2002)

Sharon Lucas, beginning rider, bought a horse named CHARLIE from William Strain, who said the horse would be suitable for her. He provided her also with a saddle but no helmet. After owning CHARLIE for a short period of time, Lucas was thrown from the horse and died from head injuries. Her estate sued Strain.

The trial court granted summary judgment to Strain. The court of appeals upheld the summary judgment. The court held that once Strain showed that there was no prior incident with the horse, the burden shifted to the plaintiff to show the horse was unsuitable at the time sold. As to the claim that defendant should have advised Lucas to wear a helmet, the court ruled that “riding a horse without one was such an obvious risk that, as a matter of law, no actual duty arose.”

Ladner v. Jordan, 848 So. 2d 870 (Miss. Ct. App. 2002)

Becky Ladner purchased a Palomino horse from Jimmy Jordan for $1,800. She did not ride the horse before the purchase, and did not have the horse examined before the purchase. Jordan supposedly told her that he was selling the horse “as is.” When Jordan got the horse home and rode it, she determined that the horse was lame. A veterinarian confirmed that the horse was developing arthritis in the ankle joint.

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After trial, the court dismissed the complaint for breach of express warranty, implied warranty of merchantability, and a warranty for fitness. The decision was upheld on appeal. The court of appeals held that the sale “as is” negates a finding of an express warranty. With regard to the warranty of merchantability, the court of appeals agreed with the trial court that Jordan was not a merchant, thus the warranty was inapplicable. With regard to the implied warranty of fitness, the court ruled that an “as is” sale refuted such a warranty, and that Ladner’s failure to ride the horse and have it inspected, prior to the sale, negated the implied warranty of fitness for particular purpose.

Richie and Pat Bonvie Stables, Inc. v. Irving, 796 A.2d 899 (N.J. Super. Ct. App. Div. 2002)

Richie and Pat Bonvie Stables, Inc. purchased a Standardbred racehorse, KID GLORY, at the Standardbred Horse Sales Company, for $35,000. KID GLORY had a proven track record, having raced for many years. Prior to the auction purchase, the consignor advised Bonvie Stables that the horse had been in good health, and had never had any injections.

Standardbred Horse Sales had the usual conditions of sale, disclaiming war-ranties and stating that horses were sold “as is.” The conditions were published in the catalog and acknowledged when the high bidder signs the confirmation of sale.

Following the sale, Bonvie Stables determined that the horse had been injected on several occasions, and had previously been surgically treated for ossified calcium deposits. Bonvie Stables continued to race the horse, but he never performed well. Bonvie Stables sued the consignor on the basis of fraud, seeking rescission.

The trial court granted summary judgment to the consignor. Among the bases was the warranty disclaimer in the sales conditions. Further, the court reasoned that Bonvie Stables was a sophisticated buyer of horses and knew the conditions of the auction well, and any reliance on representations of the consignor was unreasonable. The court also held that the claims were barred by the parol evidence rule.

The court of appeals reversed. The court first held that the auction condition disclaimers were inapplicable in this case because they were designed to protect the auction company, not sellers. The court alternatively held that even if the conditions applied, they were not effective against misrepresentations. Further, the sales conditions required the disclosure of latent conditions.

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Watral v. Silvernails Farm, LLC, 51 F. App’x 62 (2d Cir. 2002)

Watral owned several racehorses and breeding stock, which he entrusted to his trainer, Dennis Brida. At one point, Brida transferred the horses to the care and custody of Silvernails Farm, LLC in New York. Watral claimed the transfer was made as part of a scheme to steal the breeding rights in the horses. He sued Watral under RICO. The district court granted summary judgment on the RICO claim, holding that there was no “pattern of racketeering” as a matter of law. Plaintiff’s allegation did not meet the “continuity” portion of the “pattern” test, because it was a closed end scheme that occurred over a period that was, at most, two years.

Willis v. State, 46 P.3d 890 (Wyo. 2002)

Willis was entrusted with horses owned by Sondeno. He sold the horses and kept the proceeds, telling Ms. Sondeno he had to have then put down due to poor health. She became suspicious and eventually discovered he sold them. Willis was criminally convicted of the felony of larceny by a bailee. His con-viction was upheld largely on the basis that he had lied to Sondeno as to what happened to the horses.

Ziegler v. Matthias, 2002 WL 554369 (Minn. Ct. App. 2002)

Michael Ziegler sued Leon Matthias for selling him a lame horse, alleging fraud. The lower court granted summary judgment. The appeals court upheld the summary judgment, because the plaintiff failed to adequately establish the credentials of its expert witness. Although the court ruled that a lower standard of qualification is applied to an expert giving opinion testimony regarding animals than is generally applied to expert witnesses offering testimony as to diseases and ailments of humans, the affidavit of a professional horse trainer, containing conclusory statements regarding her ability to detect equine lame-ness, was insufficient to create a genuine issue of material fact.

2001

Laxson v. Giddens, 48 S.W.3d 408 (Tex. App. 2001)

This case involved horse people who duped a lottery winner, Vanessa Laxson. The scheme was this: Tony Wallace acquired a Quarter Horse for a low price, then Wallace and Judy Giddens, Laxson’s trainer, turned around and sold the horse to Laxson at an inflated price, and split the profit from the mark-up.

The jury held that Giddens and Wallace were respectively 60% and 30% lia-ble to Laxson for conspiracy to violate the Texas Deceptive Trade Practices

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Act. The trial court reformed the verdict to hold Giddens 90% liable. Laxson appealed, and the Texas Court of Appeals reversed and reinstated the jury ver-dict, holding that Wallace, who participated in the scheme but did not directly deceive Laxson, could be liable for conspiracy.

Sylvester v. Rische, 2001 WL 548628 (Ohio Ct. App. 2001)

Charles Sylvester bought MESSENGER T at the “Ohio Selected JUG Sale” conducted by the Kentucky Standardbred Sales Company. One year and two days following the sale, he sued the seller alleging breach of warranty and fraud for misrepresenting that the dam’s sire was BALTIC SPEED. The trial court granted summary judgment based on the provision of the Conditions of Sale in the sales catalog (which the high bidder acknowledged reading and agreeing to in the Acknowledgment of Purchase), which provided that “any cause of action arising out of the purchase and sale of any animal at this sale shall be commenced not more than one year after the sale.”

The court of appeals held that the warranty claim was barred by this limitation, which was a reasonable limitation. As for the fraud claim, the appeals court ruled that the one-year limitation nevertheless applied, because under Ohio law, claims for economic damages must arise in contract, not in tort. Alterna-tively, the court ruled that the buyer failed to rebut the affidavits of the seller that he made no deliberate misrepresentation about the pedigree of the dam.

2000

Ellison v. Green, 775 So. 2d 831 (Ala. Civ. App. 2000)

Plaintiff purchased a Paint Horse at auction. The sales catalog listed the horse as a “proven sire of color,” which turned out to be erroneous. Plaintiff sued the consignor, who was able to demonstrate that he never told the sales company that the horse was a “proven sire of color.” Plaintiff’s breach of contract claim was dismissed and the jury ruled in favor of the consignor on the misrepresen-tation claim. Plaintiff’s grounds for appeal were largely overruled for failure to properly preserve them.

Hall v. Peter Pan Stables, 2000 WL 1594095 (Ohio Ct. App. 2000)

Hall owned a Standardbred racehorse named ADMIRAL’S COVE. In Decem-ber 1994, Hall sent ADMIRAL’S COVE, along with his USIA registration papers, to his trainer, Tim Tickle, to train and race.

In December 1995, Tickle allegedly “sold” the horse to Robert Barrett, while representing to hall that ADMIRAL’S COVE was not racing due to an injury.

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To effectuate the sale, Tickle forged Hall’s name on the registration papers. The horse continued to race, and in March 1997, was entered into a claiming race, where Peter Pan Stables claimed him. Peter Pan then sold ADMIRAL’S COVE to others through a claiming race on May 17, 1997, for $60,000. Hall admitted he found out about the false transfer in early 1996, but first notified Peter Pan Stables on May 23, 1997, after it sold the horse. Hall sued Peter Pan for replevin and conversion.

After a trial, the judge ruled that Hall’s claims were barred by estoppel and laches, and that Peter Pan was a bona fide purchaser. On appeal, the court of appeals affirmed, but on the basis that Hall failed to prove that Tickle’s “sale” of the horse was unauthorized. In dicta, however, the court stated that Peter Pan would not have had clear title to ADMIRAL’S COVE if Tickle had, in fact, sold the horse without authorization.

Milner v. Colonial Trust Co., 6 P.3d 329 (Ariz. Ct. App. 2000)

A dispute arose as to whether an elderly woman had given a horse boarded at her farm to another woman as a gift. In the lawsuit that developed, the court entered summary judgment holding that no gift had occurred, because an Ar-izona statute required a transfer of horse to be accompanied by a bill of sale.

The court of appeals disagreed. The statute provided that “upon the sale or transfer of livestock, delivery of the animals shall be accompanied by a written and acknowledged bill of sale from the vendor to the purchaser.” The court ruled that this statute did not provide that a transfer without a bill of sale was ineffective, and that transfer could be proven by other evidence.

Sheffield v. Darby, 535 S.E.2d 776 (Ga. Ct. App. 2000)

Sheffield became interested in a show horse owned by the Darbys after seeing him perform. Sheffield offered to buy the horse. Prior to the sale, the Darbys represented that the horse had no problems and would make a good show horse for use in competition. Sheffield had the horse cursorily examined by a veterinarian prior to accepting the horse. Three weeks later, Sheffield determined that the horse was lame. Sheffield sued the Darbys for fraud and breach of warranty.

The Darbys moved for summary judgment. In response, Sheffield produced an affidavit from the previous owners that they had told the Darbys that the horse had problems and would not be a good show horse. Nevertheless, summary judgment was entered.

The court of appeals affirmed, holding there was no evidence of fraud. It dis-missed the affidavit noting that the horse had, in fact, been successfully shown

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in competition. It further ruled that any reliance was unreasonable since Shef-field should have had a comprehensive veterinary exam of the horse conducted.

As for the warranty claim, the court ruled that the expressions of the Darbys were mere puffing, and did not create express warranties. It further held that there was no showing of a breach of implied warranties because the horse was not shown to be lame at the time he was purchased.

1999

Hall v. Klien, 1999 WL 682584 (Ohio Ct. App. 1999)

Marilynn Hall purchased a pleasure horse from Mary Ann Klien for riding purposes. After the purchase, Hall was injured when the horse threw her when it reared suddenly and without provocation. She sued Klien for breach of implied warranty and failure to warn about the dangerous propensities of the horse. Klien was granted summary judgment on the basis that the Ohio Immunity Statute barred the claim, no implied warranty was made, and the duty to warn was not breached.

The decision was upheld on appeal. The Ohio Court of Appeals held that al-though the Immunity Statute might not have applied (Hall was not one of the equine professionals the statute protected), the lower court was correct that no implied warranty was given. Citing Leal v. Holtvogt, 702 N.E.2d 1246 (Ohio Ct. App. 1998), the Ohio court held that an implied warranty of fitness requires the following showing: (1) the seller must have reason to know of the buyer’s particular purpose; (2) the seller must have reason to know that the buyer is relying on the seller’s skill or judgment to furnish or select appropriate goods; and (3) the buyer must, in fact, rely upon the seller’s skill or judgment.

The court held that based on the affidavits submitted by Klien, only the first element was satisfied. In addition, because Klien’s affidavit, which was uncontradicted, stated that she had no knowledge of the horse’s dangerous propensities, she did not breach the duty to warn.

Zsamba v. Community Bank, 56 F. Supp. 2d 1207 (D. Kan. 1999)

The plaintiff’s parents borrowed money from a bank for their farming opera-tion, and pledged a horse as collateral. They later filed bankruptcy, scheduling the horse as their property. The bank sought and received stay relief, and re-possessed the horse. After repossession, the plaintiff, who was a minor child, claimed the horse as her own, and sued in federal court to stop the sale by the bank. Her theory was that the bank had violated the Fair Debt Collection Practices Act. The court denied her request for a preliminary injunction because the Fair Debt Collection Practices Act does not authorize such injunctive relief.

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1998

Butler v. Shipshewana Auction Inc., 697 N.E.2d 1285 (Ind. Ct. App. 1998)

Three days after he purchased a horse at auction, buyer’s horse died. Buyer sued the auction company for fraud and breach of warranty, and obtained a default judgment. On a motion to set aside the default judgment, the court ruled that the auction company had a meritorious defense based on the auction company’s assertion that it had no duty to inspect the horse before selling it.

Leal v. Holtvogt, 702 N.E.2d 1246 (Ohio Ct. App. 1998)

The Leals, novices in the horse business, became interested in starting an Arabian breeding operation. The Holtvogts, from whom they were learning how to ride and handle horses, sold them a one-half interest in a stallion, MC QUE JABASK, for $16,000. The Holtvogts allegedly represented that MC QUE JABASK was a national champion and was capable of attaining national show titles again. The Holtvogts did not reveal that the stallion had been treated for lameness. After the stallion became a disappointment, Mrs. Leal began making disparaging remarks about the Holtvogts, and demanded her money back. MC QUE JABASK died from stomach ulcer complications.

The Leals filed suit against the Holvogts for breach of warranty, negligent misrepresentation, and fraud. The Holtvogts counterclaimed for defamation and for failure to pay a board bill. The Leals presented evidence from a veterinarian that the stallion had been chronically lame when purchased.

The trial court awarded the Leals $16,000 for negligent misrepresentation and breach of warranty, and awarded the Holtvogts $1,000 for defamation. It held that the Leals did not sustain their burden of proving fraud. Both sides appealed.

On appeal, the court held that a claim of negligent misrepresentation cannot be based on an omission, but can only be based on a false representation. However, it concluded that the trial court was within its discretion in holding that false statements were “negligently” made by the Holtvogts when they stated that the stallion was fit to be shown, particularly since the Leals were novices in the horse industry. The court held that the Leals’ reliance was justified because they trusted the Holtvogts. The court also dismissed the contention of the Holtvogts that the lameness did not affect the value of MC QUE JABASK as a stallion because evidence was presented that “a person could not successfully advertise a stallion for stud unless it was actively being shown.”

The Holtvogts also contested the finding of breach of warranty by arguing that the UCC Article 2 did not govern the transaction because the stallion was not “goods,” that the purchase of the interest in the stallion was not a “sale” under

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the UCC, and that their statement did not amount to an express warranty. The appeals court rejected the first two arguments, but held that the statements made in connection with the sale were mere “puffing.”

The court held, however, that the implied warranty of fitness was nevertheless breached. The appeals court also noted that the “integration clause” in the partnership agreement executed by the parties did not preclude an implied warranty of fitness.

The court of appeals also sustained the trial court’s determination not to award the Holtvogts a judgment for one-half the amount of the expenses incurred in maintaining the stallion after its purchase, because “the Holtvogts should not be able to collect half the costs incurred under a partnership which they misled the Leals into entering.”

The appeals court also held that the trial court erred in not finding fraud. The appeals court held that the failure to disclose MC QUE JABASK’s lameness amounted to a fraudulent omission. The duty to disclose arose out of the fact that the Leals trusted the Holtvogts.

Russell v. Lawrence, 507 S.E.2d 161 (Ga. Ct. App. 1998)

Marie Lawrence and Tommie Jordan jointly operated a horse business known as Cheval Farms. Unbeknownst to Lawrence, Jordan had the horses registered in his name. Lawrence and Jordan had a falling-out, which resulted in litigation. The court preliminarily gave custody of half the horses to Jordan, and half to Lawrence, to hold in an unaltered state during the pendency of the litigation. Prior to this time, though, Jordan signed a promissory note in favor of Emerson and Angela Russell, who took a lien on the horses and filed UCC-1 financing statements. Shortly thereafter, the Russells bought Cheval Farms from Jordan. The agreement of sale purported to transfer the horses as well as the real estate.

The litigation between Lawrence and Jordan eventually resulted in a jury verdict awarding some of the horses to Lawrence. Four days later the Russells sued Lawrence asserting that they had superior title to the horses. The trial court granted summary judgment to Lawrence on the basis that the Jordan/Lawrence lawsuit acted as a statutory lis pendens.

The court of appeals affirmed on different grounds, noting that a statutory lis pendens only protects purchasers of real estate. The court of appeals held, however, that the judgment of the court in the Jordan/Lawrence litigation acted as “an estoppel” against the Russells because it settled the issue of title. The court ruled that “Jordan had no legal right to sell what he did not own.” Moreover, the Russells offer no applicable authority to show that by merely registering the horses with national associations, Jordan obtained voidable title to the horses.

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Simpson v. Widger, 709 A.2d 1366 (N.J. Super. Ct. App. Div. 1998)

Simpson, an attorney, purchased THE MIGHTY QUINN from Scher for $70,000 for use by his daughter in competitive shows. Prior to purchase, Simpson had the horse moved to a farm of his choice for observation, and had the horse examined and x-rayed. The x-rays revealed the potential for ringbone disease. Following that, Scher advised Simpson that the “horse was a good horse and was worth the money.” Simpson acquired the horse, and his daughter showed the horse for a period of time until the horse became lame. Simpson then sued.

The trial court granted summary judgment against Simpson. The court of appeals affirmed because the statements by Scher did not amount to express warranties under the UCC – they were expressions of value and excluded from the definition. The court also engaged in a lengthy analysis of the meaning of “soundness” in horses, relying on both horse books and legal precedent. It held that the term meant “serviceably sound,” and thus a horse could be sound even if there were potential problems that could later lead to lameness. The court also held that any claim of fraud was barred because Simpson had the horse independently examined.

1996

Advent Stable Partners 1996 v. De Roualle, et al., Republique Francaise Tribunal de Grande Instance de Senlis

On September 16, 1996, Advent Stables agreed to purchase a Thoroughbred racehorse, ALEXANDRE FARNESE, from French sellers for $175,000, subject to veterinary inspection. No written contract was ever executed. On September 19, 1996, ALEXANDRE FARNESE was examined in France by a British veterinarian, and pronounced healthy. Following that time, the horse continued training in France under the direction of the seller’s French trainer, for planned races in the U.S., with its last work session on October 8, 1996. Payment was made about a month later, and about a month after that the horse was shipped to the United States, where he arrived in quarantine in New York.

The examining USDA veterinarian detected “heat” in one of ALEXANDRE FARNESE’s legs. The horse was shipped to the New Bolton Center where it was determined he had a severely bowed tendon, and was never able to race. Advent Stables sued the sellers in France. The French court ruled there was sufficient evidence to go forward, and appointed an examiner.

The examiner, a bilingual equine veterinarian, after conducting an investigation, determined that the lesion manifested itself in the period between the end of September and early October, 1996. As French law provided for a warranty of fitness upon the sale, the issue then confronting the court was when did the

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“sale” occur. As no written agreement existed, this was not an easy determina-tion. If the sale occurred upon payment, or when the horse was shipped to the U.S., the warranty was violated. If the sale occurred upon making the agreement in September, or upon inspection consistent with that agreement, subsequent adverse injury to the horse would not violate the implied warranty. Among the issues was the law to be applied. If the Convention de Vienne applied, being an international transaction, arguably the “sale” date was the payment date. If French law applied, the “sale” date was arguably the contracting date or the inspection date. The court followed French law and fixed the date of the sale at September 16, 1996. Thus, the implied warranty was deemed not breached.

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SALES AND OWNERSHIP

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2018







2017

Iron Horse Farms, Inc. v. Raylin Farms, Inc., 2017 WL 1316059 (Md. Ct. Spec. App. 2017)

Iron Horse, a Canadian Farm, entered into an oral agreement with Raylin, a Maryland farm, to purchase horses and board them at Raylin for resale. Iron Horse failed to pay the board and care for one of the horses, named PERFECT, incurring some $165,655 in two years. Raylin filed a Maryland agister’s lien notice and sold PERFECT at auction to itself for $40,000, immediately re-selling PERFECT to a third party for $120,000. Raylin sued for the $165,555. Iron Horse initially objected to jurisdiction, which was overruled. The case

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went to trial, with the jury awarding Raylin the $165,655, with no deduction for the sale price.

On appeal the court first determined that sufficient “specific” jurisdiction exist-ed, largely because Iron Horse approached Raylin about buying and boarding the horses, although no one with Iron Horse had actually been to Maryland.

The court agreed with Iron Horse that there should have been a mitigation in the amount of the resale price – largely because that is what the agister’s lien statute requires – but held that the amount should be $40,000 rather than the $120,000, as the sale of PERFECT to Raylin was for that amount. The court also determined that the delay in selling was Iron Horse’s own fault because it refused to sell PERFECT for anything less than $300,000.

Minshall v. Hartman Equine Reproduction Center, 2017 WL 1495077 (E.D. Tex. 2017)

Horse owner sued equine clinic for negligence and other causes of action after horse contracted HERDA at clinic. The jury returned a verdict holding the clinic 10% liable on the negligence claim only, and assessed damages of 10% of $163,408, consisting of $30,000 in the value differential, and the remainder for expenses of caring and for lost profits. After the verdict, the court ruled that the horse owner was only entitled to the value differential (thus 10% of $30,000), not lost profits or expenses. The court held that in a negligence ac-tion, a plaintiff may be entitled to economic damages. The parties had agreed on jury instructions (which the jury apparently ignored) that limited recovery in a negligence action to the value differential.

Misko v. Backes, 2017 WL 3328123 (N.D. Tex. 2017)

Plaintiff and defendant were competitors in horse breeding and selling. Plain-tiff sued defendant under the Lanham Act for falsely stating on her website that her horses were HERDA-free. The court overruled defendant’s motion to dismiss, holding that plaintiff, a direct competitor, had standing and that the complaint stated a claim.

Smith v. Jackson, 2017 WL 1047033 (S.D. Fl. 2017)

Smith purchased a dressage horse from defendants for $100,000. Before the purchase she inquired as to any medical issues and was told the horse underwent colic surgery some years ago but had no other issues. She agreed to purchase the horse, subject to an exam, and executed a purchase and sale agreement which contained an “as is” clause and an integration (“entire agreement”) clause. The pre-purchase exam did not include an MRI. After buying the horse she

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sought to have it insured, but the underwriter advised that the horse had been previously treated for degenerative bone disease, a condition she confirmed with an MRI. She sought rescission, and offered to return the horse. When the seller refused, Smith sued for rescission, respondeat superior, fraudulent inducement, negligent representation, civil conspiracy, unfair trade practices, and breach of implied warranties.

Defendants moved to dismiss. The court rejected the motion as to the rescission claim, holding that an offer to return the horse, as opposed to actual return, was sufficient to state a claim. The court rejected the motion to dismiss the fraudu-lent inducement and negligent misrepresentation claims because a contractual “as is” and integration clause do not trump such claims, and the economic loss rule only barred tort claims dependent on the contract. The court refused to dismiss the implied warranty claims for the same reason.

The unfair practices claim was based on the Florida administrative regulation requiring certain disclosures in a bill of sale. The court granted the motion because those disclosures were made in the agreement of purchase and sale. The court also dismissed the respondeat superior claim because it was not an actual cause of action.




Zendejas v. Redman, 2017 WL 2547202 (S.D. Fla. 2017)

Purchaser of a show jumping horse was disappointed with the performance of the horse, having being told by the seller that the horse was behaviorally and physically fit to compete at the Grand Prix level of show jumping. The purchaser sued the seller and his agent, alleging breach of contract as well as fraud and negligent misrepresentation. Defendants moved for summary judg-ment on the tort claims, asserting they were barred by the economic loss rule. The court extensively discussed precedent on whether animals were products,

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and concluded that under compelling authority that horses, like other animals, were not products and thus the economic loss rule (applicable to products lia-bility claims) did not apply. The court also overruled the motion for summary judgment of the agent, holding an agent can be liable for torts of fraud and negligent misrepresentation even where there is a disclosed principal.

2016

Cortes v. Rosales, 2016 WL 146212 (Iowa Ct. App. 2016)

Horse traders claimed that horses that were negotiating to be purchased were unlawfully taken by defendants to Guatemala. A trial resulted in a verdict in plaintiffs favor for conversion, and included punitive damages. On appeal the challenge based on sufficiency of evidence was rejected, but the court ordered remittitur of the punitive damages.

2015

Biszantz v. Stephens Thoroughbreds, LLC, 2015 WL 574594 (E.D. Ky. 2015), aff’d, 620 F. App’x 535 (6th Cir. 2015)

Stephens Thoroughbreds consigned a filly later named SALINA to the Keene-land two-year-old in training sale. The filly had some surgical and veterinary work previously, and certain disclosures were made in the repository at Keene-land. The horse went through the ring but did not sell. Subsequently, Biszantz privately bought the filly from Stephens for $175,000. The contract of sale provided that the Keeneland Conditions of Sale would apply. During subse-quent training, SALINA experienced some pain, and Biszantz had her treated at a veterinary clinic. When he got the bill he realized it listed some previous health problems with the filly. He sued for breach of warranty and fraud.

The defendant moved for summary judgment, which the trial court granted. The court acknowledged that there may have been an issue of fact as to whether proper disclosures were made as required by the conditions of sale for horses of this type. However, the court ruled that the warranty claims were neverthe-less barred by the very strict time limitations for rejection, which is the only remedy permitted under the Conditions of Sale. The court opined that even though the limitations “look harsh in a vacuum” they reflect the “experience and market savvy of Keeneland as a keystone Thoroughbred marketplace.” The court rejected the argument that the limitations are void because they fail in their essential purpose or are unconscionable. In addition, the court held that the statement by the seller that he “liked SALINA a lot” did not create an express warranty as it was an opinion and not an affirmation of fact. Finally, the court rejected the fraud claim under the economic loss doctrine which it

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perceived to be “broadly applied” in Kentucky, and alternatively because the relationship did not give rise to a duty to disclose.

The Sixth Circuit affirmed. It agreed with the district court that the strict time-limits in the Keeneland conditions of sale did not fail in their essential purpose. The court of appeals emphasized that the buyer was a sophisticated horseman, and could have made further investigation within the time periods. Thus the time limitations in the conditions of sale were enforceable.

The Sixth Circuit also agreed that the statement that the seller “liked SALI-NA a lot” did not create an express warranty as it was an opinion and not an affirmation of fact, distinguishing Travis v. Washington Horse Breeders Ass’n, 759 P.2d 418 (Wash. 1987), which held that an express warranty was created by the statement that a horse was “healthy and fit for racing and breeding purposes.” The court of appeals declined to opine whether the conditions of sale “bars any other outside warranty” but volunteered that “Kentucky law has repeatedly enforced the [conditions of sale]’s ‘as is’ provision.”

Finally, the Sixth Circuit addressed the fraud claim. It first disagreed with the district court that Kentucky would extend the doctrine to bar a claim seeking rescission. However, it affirmed summary judgment on the basis that the statement made by the seller’s agent that he “liked [SALINA] a lot” was just an optimistic prediction, and not likely to induce a buyer to buy the horse. With regard to the fraudulent omission claim based on failure to disclose the bone condition, the court of appeals held, without deciding whether there was a duty to disclose, that the radiographs in the Repository amounted to a disclosure. With regard to the fraudulent omission claim based on failure to disclose the prior surgery and medications, the court of appeals held that there was no evidence that either caused damages.

Linderman v. Nichols, 2015 WL 164872 (D. Or. 2015)

Linderman and Huggins were general partners in a partnership that owned breeding rights in an Arabian stallion, and the resulting offspring. Huggins later had the horses transferred to a third party entity. Linderman sued Huggins and the transferees for breach of fiduciary duty, constructive fraud, and conversion.

The transferees moved for summary judgment. As to the constructive fraud claim the court determined that there was some basis in Oregon law for liability for aiding and abetting a breach of fiduciary duty. The fact that the transferees could have checked the AHA breed registry to determine that registration was at one time in the name of the partnership, was sufficient evidence to create an issue of fact to defeat summary judgment.

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Likewise, the court denied the motion for summary judgment on the conversion claim, as there was an issue of fact as to whether the transferees were “merely innocent purchasers.”

2014

Blue Skies Racing Stable, LLC v. O’Sullivan Farms, LLC, 2014 WL 3721160 (Ky. Ct. App. 2014)

Blue Skies entered into an agreement to purchase a stallion from Vinery, as syndicate manager for the stallion. Vinery allegedly welshed on that deal and entered into an agreement to sell the stallion to O’Sullivan Farms, who wanted to move the stallion to West Virginia. Blue Skies sued for a declaratory judg-ment that it was entitled to the stallion, and sought a temporary injunction to prohibit the movement of the stallion to West Virginia.

The court held hearings and from the bench indicated that it was denying the motion, but never entered an order. During the litigation the stallion was sold to O’Sullivan Farms which moved the stallion to West Virginia. A later motion to dismiss O’Sullivan Farms was granted based on what the court said were findings of fact at the hearing, the perception that damages were an adequate remedy, that the court had no jurisdiction to unravel the sale to O’Sullivan be-cause the horse had been moved out of Kentucky, and what the court perceived to be a concession from Blue Skies’ counsel that the horse could be moved.

Blue Skies appealed. The court of appeals harshly criticized the trial court for a myriad of procedural errors. It further held that court was incorrect that Blue Skies’ remedy at law was adequate because horses are unique and subject to specific performance. It further held that the court did have jurisdiction to unravel the sale even if the horse had been moved to West Virginia as the court had personal jurisdiction over the buyer.

Fifth Third Bank v. Gulf Coast Farms, LLC, 573 F. App’x 515 (6th Cir. 2014)

A partnership called Gulf Coast Farms Bloodstock owned a share in the stallion, which stood at WinStar. When one of the partners withdrew, the share was supposedly transferred to an LLC (Gulf Coast Farms, LLC), whose members were the remaining partners. Fifth Third Bank made a loan, taking all of the LLC’s stallion shares as collateral. The LLC later defaulted, and Fifth Third sought to foreclose.

In the meantime the partnership sold the share to WinStar for $220,000. WinStar’s books showed the partnership still owned the share. The funds were escrowed and became subject to a suit by Fifth Third claiming those

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funds, contending that its debtor, the LLC, owned the share. After discovery, the district court granted summary judgment to the Bank on the basis that the undisputed evidence showed that the LLC had owned the share.

The court of appeals affirmed. It reviewed the evidence and found it to over-whelmingly supporting ownership by the LLC. Significant was the fact that the share was on a collateral list for the LLC. The partnership’s tax returns supported the assertion that it had transferred the share to the LLC. The as-sertions of the LLC in the foreclosure action supported the bank. The court of appeals dismissed the assertion of the partnership that the bank should have investigated the ownership more thoroughly, noting that that was irrelevant to ownership. The court also rejected the relevance of WinStar’s ownership records.

In re Laos (Nasch v. Laos), 513 B.R. 119 (Bankr. D. Az. 2014)

Purchaser of horse paid seller $5,000, but the purchaser cancelled the sale after the horse could not be successfully transported. The seller failed to refund the purchase price, and the purchaser sued and obtained a judgment. After the seller filed bankruptcy, the purchaser sought to have the debt deemed non-dischargeable. The court denied the relief. It held that although the quality of the horse was misrepresented, there was no evidence that the seller acted fraudulently. Nor was there any evidence of embezzlement or conversion, as the purchase funds were not required to be segregated form the seller’s other funds, even if the funds were refundable.

In re Siggins (Bates v. Siggins), 2014 WL 1796685 (Bankr. D.N.M. 2014)

After a failed initial sale and purchase of a horse, the buyer and seller entered into a written contract under which the buyer purchased a gelding named CALVIN. The contract provided that the horse “was to be free from any defect” and that if the buyer was not satisfied he could bring the horse back and trade for one of equal value. The buyer determined the horse was lame and unsuitable for the intended use (team roping), so he demanded return and a refund. Suit was filed, and a settlement was reached wherein an order was entered providing that the buyer return the horse and receive a full refund, but if the payment was not made timely, then a judgment would be entered against the seller for the purchase price. Such a judgment was entered.

The seller then filed bankruptcy and the buyer filed an adversary proceeding alleging that the $13,000 was nondischargeable. The seller sought summary judgment, which was denied. The seller argued that the buyer’s remedy was specific performance, and thus there was no dischargeable debt. The court disagreed, noting that the contract did not provide for specific performance and

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the judgment already entered obviated that position in any event. The seller also argued that there could be no nondischargeability as the remedy for fraud in the inducement is rescission. The court answered that the buyer was not bound by that remedy when claiming fraud. Finally, the seller argued that there was no fraud as a matter of law because the buyer had the opportunity to inspect the horse. The court held that there was nevertheless an issue of fact as to fraud.

Olympic Dreams, LLC v. Clark, 2014 WL 4267499 (D. Conn. 2014)

Purchaser of six horses for the owner’s daughter to ride and compete with were advised on the purchases by equine professionals, who also served as agents in the purchases. When the horses turned out less than what was expected, purchaser sued the professionals for negligence and negligent representation. The professionals moved for summary judgment. The court denied the motion as to negligence, without prejudice, because they were pure negligence claims not tied to the negligent misrepresentation claims. The court granted the motion as to the negligent misrepresentation claims. It held that the statements made by the professionals were largely opinions as to quality, which cannot form the basis of a misrepresentation claim. In the few instances that the statements were arguable ones of fact (horse “competed at the highest levels” and horse “vetted out clean and safe”), the purchaser failed to produce evidence that he statements were not true.

Pappas v. Hurst, 2014 WL 5798305 (Ill. App. Ct. 2014)

Dispute by joint venturers and purported purchaser over ownership of a horse resulted in litigation when a purported owner, with the assistance of a lawyer, attempted to take possession from the farm of the venturers. After a preliminary injunction, an agreed order dismissing the litigation with preju-dice was entered. A second suit was then filed, and named as defendants the lawyer and law firm assisting the party, alleging various torts and libel. The lawyer defendants were granted a dismissal based on res judicata due to the prior suit. The court of appeals affirmed, holding that the lawyer defendants were in privity with their clients for res judicata purposes, and thus the prior dismissal was applicable to them.

Smith v. Pohl, 2014 WL 4825167 (W.D. Okl. 2014)

Smith sued Pohl for breaching an alleged oral agreement regarding the purchase of a horse. Smith claimed he did not receive all promised consideration, name-ly, two breeding rights and the first two embryos. He also made a conversion claim. Defendants moved to dismiss the conversion claim. The court dismissed the conversion for failure to state a claim because Pohl properly received pos-

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session of and title to the horse, thus the claim did not meet the definition of conversion, being the wrongful exercise of dominion over property of another.

Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294 (9th Cir. 2014)

DeHaven bought a horse at the Tattersalls auction, removed the horse, but failed to pay the purchase price. The trial court granted title and possession to Tattersalls, and stated that damages (for diminution of value) would be added on a Rule 59 motion amendment of judgment. However, the time for a Rule 59 amendment expired, so the court amended the judgment to provide for damages under Rule 60. Dehaven appealed. The court of appeals held that the amendment to the judgment was an appropriate “correction” under Rule 60 because it did not constitute the court changing its mind, which would only be allowed under Rule 59.

2013

Morgan v. Parra, 2013 WL 1500467 (N.J. Super. A.D. 2013)

Georgia woman purchased from New Jersey sellers two fractional interests in two dressage horses. The contracts contained clauses requiring mediation followed by arbitration. After arbitration failed, the trial court reinstated the complaint on the basis that the arbitration language might be ambiguous. The court of appeals reversed, stating that the strong public policy of enforcing arbitration, as well as the Federal Arbitration Act, mandated arbitration.

U.S. v. Johnston, 2013 WL 5775250 (E.D. Ky. 2013), and U.S. v. Woodland Dream, 2013 WL 5775298 (E.D. Ky. 2013)

The United States brought a claim for the “pre-indictment forfeiture” of a mare owned by Seth Johnston. The court had determined that there was a probabil-ity that the United States would prevail on forfeiture. A hearing was held as to whether the asset should be “preserved” pending resolution pursuant to a federal statute by requiring the mare be sold. The statute did not specifically authorize such sale as a means of “preservation”, but the judge concluded that such method was permitted to preserve the “value” of the asset. After hearing testimony the magistrate judge concluded that there was a substantial risk that the value of the mare would decline and therefore order the mare sold to “preserve” her value.

In the second opinion the district court judge adopted the magistrate’s order. After reviewing the evidence presented at the hearing, the judge concluded that “[b]ased upon the reproductive history of WOODLAND DREAM, this

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mare presents a great risk of declining in value because another slip or failure to catch would drastically decrease this mare’s value.”

2012

Shellbird, Inc. v. Grossman, No. 09-cv-01271 (S.D. Ind. 2012)

A corporation wholly owned by Michele Pfeifer purchased an Arabian stallion for $4.5 million, with payments to be made in installments. After about half the payments were made, the corporation defaulted. The parties stipulated as to the remaining amount owed, and a bench trial was held to determine whether Pfeifer was personally liable.

Following the trial, the court ruled that the factors for piercing the corporate veil weighed in favor of finding personal liability. Significant to the court was the lack of observance of corporate formalities, and that Pfeifer made decisions regarding buying and selling horses “based on her own ego.” 2012 WL 208053.

On reconsideration, however, the court changed its mind. Although it continued to recognize that corporate formalities were not observed by Pfeifer, it held that the evidence did not justify a finding that the second prong of the piercing test – that the entity was operated in an unjust and unfair manner – was proven.

2011

Adams v. Wallace, 2011 WL1886580 (Conn. Super. Ct. 2011)

The Wallaces gave Lisa Adams two horses, imposing several conditions. Later, the Wallaces removed the horses from Adams’ property. Adams sued for conversion and replevin. After a bench trial, the court concluded that be-cause Adams complied with the conditions imposed, ownership of the horses transferred to her, and thus she was entitled to their return.

Calderon v. Reinig, 2011 WL 5925071 (Ohio Ct. App. 2011)

Horse owner fell behind on his payments to his trainer. Owner gave the horse to the trainer a partial payment. The owner credited the bill $3,500 and sued for the remainder. The former owner contended the horse was worth more. The court held that the horse was worth $3,500, relying on the fact that the owner had entered the horse in a $3,500 claiming race, although it was not claimed.

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Fifth Third Bank v. Miller, 2011 WL 112423 (E.D. Ky. 2011)

After defaulting on his loan with the bank, the bank sold most of the horses serving as collateral for the loan. The bank moved for summary judgment to collect the deficiency. The court denied the summary judgment on the basis that the affidavit submitted revealed far too little concerning the commercial reasonableness of the sale of the horses. Without proving that the sale was commercially reasonable, the bank was foreclosed from collecting a deficiency.

In re Backer, 2011 WL 3878338 (Bankr. E.D. Ky. 2011)

Backer orally agreed to sell horses and provide financing, but refused sign the written agreement reflecting that agreement. Suit was filed in state court to enforce the agreement, resulting in a judgment against Backer for refusing to sign the agreement. In a later bankruptcy proceeding, the bankruptcy court held that the suit to enforce the agreement could not have been brought because it was prohibited by the Kentucky statute of frauds, KRS 371.010(9). As such, the judgment of the state court was not just incorrect, but void from its inception.

Lanes End Stallion, Inc. v. Andrews, 2010 WL 5146567 (E.D. Ky. 2010), 2011 WL 310237 (E.D. Ky. 2011)

Sale of stallion shares, subject to rights of first refusal of other syndicate members, included large commissions. The syndicate manager sued the sellers and agents in Kentucky state court for an injunction. One of the sellers and one of the agents sued in state court in California. The Kentucky action was removed to federal court, and some of the defendants sought to have the case transferred to California. The court denied the motion.

Prior to removal, the syndicate manager sought and obtained a TRO enjoining deadlines to match on the basis that not all material terms and conditions had been disclosed by the sellers. Prior to removal, the defendants sought to dissolve the TRO. The syndicate manager sought a temporary injunction on the basis that the deal was essentially a ruse to inflate the price to avoid a match, as the organization acting as the purported agent was a dual agent, partially owned the purchasing entity, and the commission was much higher than industry standards. These motions were pending before the federal court after removal.

The court granted the defendants’ motion to dissolve the TRO, ordered the syndicate manager to immediately poll the syndicate, and denied the syndicate manager’s motion for a TRO. It noted that the syndicate agreement merely required that the syndicate members be notified that they have a right to match “on the same terms”.

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R & R Capital, LLC v. Merritt, 2009 WL 1089559, 2009 WL 1653097, 2009 WL 1812797, 2009 WL 1971389 (E.D. Pa. 2009), 2011 WL 1668981 (3d Cir. 2011) (see also 2009 WL 2937101 (Del. Ch. 2009))

R&R Capital and Merritt had a close business relationship, including the joint purchase of horses. Merritt purchased three “pinhooking” horses at the Fasig-Tipton “Sarasota Springs, Florida” sale, placed them in a jointly-owned company, and then sold all interest to R&R, although they remained in the possession of Merritt to manage. Merritt retained possession because board bills were owed.

R&R sought to rescind the sale of one horse due to failure to disclose lami-nitis. At the bench trial the court found that Merritt had tried unsuccessfully to return the horse to Fasig-Tipton after it was determined that the horse had laminitis. The court held that the failure to disclose the diagnosis, and the attempted return, was a material omission given the representation made to R&R by Merritt that the horse was one of “the three best yearlings” at the sale.

Merritt contended that, in fact, the horse did not have laminitis, and the di-agnosis was incorrect. The court held that even the incorrect diagnosis was “material to a reasonable purchaser” and thus should have been disclosed.

Merritt also claimed that she was not the seller, but that the entity, Pandora, owned the horse and thus it was the seller. The court held that Merritt was the seller, largely based on the endorsement on the Jockey Club foal registration papers that listed her as the owner. The court awarded Merritt a judgment on her counterclaim for some expenses incurred in keeping the horse, but denied many claimed set-off expenses.

The court also held that R&R was entitled to replevin of the other two horses. The court held that Merritt had a valid possessory lien and was thus entitled to reimbursement of amounts owed as a condition of the replevin.

In the second decision, the court ruled that Merritt had not violated the court order prohibiting the “sale or disposition” of the horses by gelding a horse, or by leasing horses for racing where prior notice of the lease had been given.

In the third decision, the court refused to set aside the judgment based on a ruling by a New York court in a companion lawsuit.

In the fourth decision, the court denied a motion to reconsider the prior ruling.

The Third Circuit affirmed the third and fourth decisions.

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Rhames v. Esparza, 2011 WL 5028038 (N.M. App. 2011)

Plaintiff sold defendant a racehorse, and transferred it by signing the back of the foal registration papers. He sued for the purchase price. A judgment was rendered in plaintiff’s favor for the purchase price. The court of appeals affirmed, holding that although the transfer did not comply with New Mexico requirement that livestock be transferred by signed bill of sale, the sale was not voided because the defendant kept (and even re-sold) the horse.

Santa Escolastica, Inc. v. Pavlosky, 823 F. Supp. 2d 649 (E.D. Ky. 2011)

Investor in a Thoroughbred operation sued operator of business. The opera-tor moved for summary judgment. The court denied summary judgment on a claim of breach of a buyout agreement, due to issues of fact regarding the horse interests subject to the agreement. However, the court granted summary judgment on the accounting claim, holding that for years the investor had received accountings and payouts without complaint, and was estopped now from demanding an accounting.

2010

In the Matter of Black, 2010 WL 2994049 (Wash. Ct. App. 2010)

Einstein and Black were cohabiting girlfriend and boyfriend for several years, during which Einstein acquired farmland and ran a horse operation. They broke up when Einstein found out Black was having an affair. The dispute over property landed them in court to squabble over the “meretricious com-munity”. Among many other rulings on property, the court awarded Einstein $5,000 because the horse it granted to her as her property died while in the possession of Black. On appeal, Black asserted that he was a bailee and only liable in the case of negligence. The court of appeals, however, upheld the award because Black took the horse in violation of a court order, and therefore was liable for conversion.

Racing Investment Fund 2000, LLC v. Clay Ward Agency, Inc., 320 S.W.3d 654 (Ky. 2010)

Racing Investment Fund 2000, (“RIF”) was a limited liability company man-aged by Gaines-Gentry to purchase and breed Thoroughbreds. It insured the horses through the Clay-Ward Agency. It defaulted on its premium payments and was subsequently sued. It agreed to judgments for principal and interest on the premiums, but only made partial payments. Clay-Ward moved for

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contempt sanctions for failure to pay the judgments in full, and the trial court held RIC in contempt.

The contempt sanctions were upheld by the Kentucky Court of Appeals. It held that the “capital call” provision in the LLC operating agreement effectively waived the limited liability afforded the members of an LLC, and ordered RIF to make the capital call. It also held that contempt sanctions were an appropriate remedy for failure to pay a judgment, despite the statutorily-mandated method of collecting a judgment.

On discretionary review, the Supreme Court of Kentucky reversed. It held that the principal of limited liability continued despite the capital call provision in the operating agreement, and that the operating agreement did not authorize a “court-ordered capital call.”

U.S. v. King, 2010 WL 4739791 (S.D.N.Y. 2010)

Melissa King was indicted for embezzlement and the government sought for-feiture of her horses. It sought an order to sell the horses because the cost of keep outweighed their value. After an evidentiary hearing involving competing experts on value, the court granted the government’s motion.

2009

Lucero v. Lujan, 2009 WL 619613 (Tex. App. 2009)

Lucero provided Lujan with a horse, which Lujan trained for years. The horse increased in value. A dispute arose as to whether Lujan or Lucero owned the horse. The registration papers were never transferred. Lucero sued to get the horse back. After a jury trial, the court ruled that Lucero owned the horse, but Lucero had to pay $14,000 for the value increase under a quantum meruit theory. The decision was upheld on appeal as being supported by substantial evidence.

2008

Bonfield v. Salak, 2008 WL 4060988 (Cal. Ct. App. 2008) and Bonfield v. Figlieno, 2008 WL 4060992 (Cal. Ct. App. 2008)

Sharon Bonfield and Amy Salak were friends who engaged in numerous horse deals together. They had a falling out over one such deal, resulting in civil litigation, criminal charges, appeals, claims of perjury, harassment, attorney misconduct, falsifying evidence, etc. A jury verdict for $260,000 and return of a horse was eventually rendered against Salak in favor of Bonfield. It was

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upheld on appeal, but in a separate action, a judgment against the transferees of the horse was set aside on appeal.

Pugliese v. Mondello, 57 A.D.3d 637, 871 N.Y.S.2d 174 (N.Y. App. Div. 2008)

Pugliese and Mondello were partners in a horse under an oral partnership agreement. Pugliese claimed that Mondello was paid $50,000 as a capital contribution but it was converted to Mondello’s own use. Mondello counter-claimed, asserting that the horse was sold in a claiming race for far less than its actual value. The trial court granted summary judgment to Pugliese on the counterclaim. The court of appeals affirmed, holding that the business judgment rule applied, and because there was no evidence of fraud, self-dealing, or other misconduct, the rule immunized the partner from liability. However, the court of appeals ruled that Pugliese was not entitled to summary judgment for the return of the $50,000 because there was a dispute as to what the payment was for.

Warmington v. Keeth, 2008 WL 4093612 (D. Utah 2008)

Warmington, a Utah resident, bought a Quarter Horse from Keeth, a Louisi-ana sheriff, and took delivery in Louisiana. After the horse failed to live up the many verbal representations as to quality, Warrington refused to pay the remainder of the purchase price. Keeth had the sheriff’s office issue a war-rant, and Warmington was arrested in Utah and extradited to Louisiana. The criminal case was not pursued, but Warmington sued Keeth in Utah for false imprisonment. The court held that Utah had jurisdiction, although most of the acts took place in Louisiana.

Weisbord/Etkin/Goldberg v. Gainesway Mgmt. Corp., 2008 WL 820950 (Ky. Ct. App. 2008)

Syndicate members asserted that acceptance of right-of-first refusal match violated the syndicate agreement because it was not accompanied by a check as required. The trial court held that although the syndicate agreement was not complied with, the complaining syndicate members had also received a waiver of strict compliance and thus were estopped from claiming a breach. The Kentucky Court of Appeals affirmed.

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2007

Cardoso v. Hill, 2007 WL 3138399 (Cal. Ct. App. 2007)

Hill and Cardoso entered into an oral agreement whereby Hill agreed to pur-chase one stallion for $20,000, but the evidence conflicted on whether he agreed to unconditionally purchase a second stallion for an additional $60,000. Both stallions were delivered to Hill’s trainer on March 1, 2005, but after having a veterinarian examine the second stallion in April, 2005, on August 17, 2005 his attorney rejected both stallions and demanded a refund of the $20,000 paid.

The case was tried without a jury and the judge ruled that an oral contract for both stallions existed and thus Hill was liable for the additional $60,000 purchase price. On appeal, Hill argued that the evidence did not support the finding of an oral contract, but the appeals court found that there was conflicting evidence as to this thus the finding would not be disturbed. Hill also argued that the claim was barred by the UCC’s statue of frauds. The court rejected this argument, relying on the exception in UCC 2-606 where goods have been received and accepted. It held that acceptance occurred because Hill failed to make an effective rejection, as the March to August delay was unreasonable.

Pickens v. Paulson, 2007 WL 4224400 (E.D. Ky. 2007)

This is one chapter in the litigation over who was entitled to Alan Paulson’s equine assets after his death. A settlement agreement in California purported to resolve the issues, but the Paulson Trust asserted that it did not resolve his widow’s claimed right to stallion shares in THEATRICAL. In a separate case, which was filed in California but transferred to Kentucky, the court granted summary judgment to the widow, holding that the Trust was estopped to make a claim because it was precluded from doing so by the “full release” language of the court-approved settlement agreement.

Rowland v. Scarborough Farms, LLC, 648 S.E.2d 151 (Ga. Ct. App. 2007)

Edwards, a trainer, entered into an oral agreement to sell a horse to Rowland for $35,000, with payment to be made “in a few days.” Several days passed, and Edwards urged Rowland to get payment by April 2, 2003, informing Rowland that he turned down an offer of $50,000. On April 3, 2003, Rowland mailed a check, which Edwards returned. Edwards later sold the horse for $200,000. Rowland sued, but the trial court granted summary judgment to Edwards.

On appeal, the court first determined that the contract was governed by the UCC. The court noted that the statute of frauds was not applicable because the parties admitted they entered into the contract. The court then determined that

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an issue of fact existed as to whether Rowland performed within a reasonable time, thus preventing Edwards from cancelling the contract under § 2-703 of the UCC, because an issue of fact existed as to whether there was an actual agreed-upon deadline. The court also held that the damage claim under UCC 2-713 was not speculative because the offer of $50,000 established the market price, and thus the contract price/market price difference could be computed.

2006

Loureiro v. Copeland, 2006 WL 2685582 (Del. Super. Ct. 2006)

Plaintiff sued on alleged contract to purchase horses. Although plaintiff-seller did not sign the contracts, the court held that the contracts were enforceable because the defendant buyers took possession of the horses, and raced them, as if the sales had occurred.

Vaughn v. Rhea, 2006 WL 1549760 (D. Colo. 2006)

Vaughn and Rhea entered into a breeding agreement with respect to keeping a mare named EDES. The contract provided for some rights for Rhea to retain a foal. In a prior proceeding, Vaughn, rather than Rhea, was determined to be the owner of EDES, and ELGIN, her foal. Incident to an unspecified criminal proceeding brought against Vaughn, EDES and ELGIN were seized from Vaughn by Shoun and Stevenson and delivered to Rhea. Vaughn sued Rhea for conversion and malicious prosecution. Rhea filed a counterclaim for breach of contract for failing to take care of the horses in violation of the contract. Other parties were named as well for their participation in this feud. In a complex decision, the trial court had to sort through an assortment of motions to dismiss and for summary judgment.

The court first held that the parties that seized the horses were immune due to prosecutorial immunity. The court also held that the breeding agreement was breached by Vaughn in several respects, including transfer of the mare and failure to care for the mare. Thus Vaughn’s claim for conversion could not lie because under the breached contract Vaughn was not entitled to possession of the mare. However, a genuine issue of material fact existed as to the foal. Vaughn’s motion for summary judgment was denied because the court could not make sense of her motion.

Stoecker v. Stephens, 711 N.W.2d 733 (Iowa Ct. App. 2006)

The Stoeckers visited Rollie Stephens’ horse farm to acquire a horse for their son. Rollie gave the Stoeckers possession of a horse, but later came to the Stoeckers’ farm and loaded the horse in his van and took the horse back. The

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Stoeckers sued for trespass and conversion. The court granted judgment to Rollie on the conversion claim, and awarded $1 on the trespass claim. On appeal, the court agreed that there was no clear evidence that Rollie intended to gift the horse to the Stoeckers, as opposed to letting their son use the horse for riding. The court also upheld the nominal damages because Rollie did not act with malice.

2005

Swido v. Lafayette Ins. Co., 916 So. 2d 399 (La. Ct. App. 2005)

Prospective buyer of a horse named MARY MAE was injured when attempting to ride her. A dispute arose as to who owned MARY MAE at the time of the injury. MARY MAE had been subject to an agreement between the Guillards and Mr. Hairford, whereby Mr. Hairford paid $1,400 cash, which included $200 to the Guillards for training MARY MAE.

The injury occurred before the training was completed and before the reg-istration papers were executed and recorded. The court held that the sale had occurred prior to the injury, despite the obligation to train, and despite the fact that the registration papers were not executed and transferred until a later date. As to this latter point, the court noted that “Louisiana does not require registration of horses.” The court further held that MARY MAE, who was only “green broke” did not constitute an unreasonable risk of harm such that strict liability would apply. Moreover, the non-owner was not liable for negligence, as the non-owner could not have anticipated the owner’s alleged misrepresentation of the “green-broke-only” status of the horse, and therefore had no duty to warn the plaintiff.

2004

Demarest v. Broadhurst, 92 P.3d 1168 (Mont. 2004)

Roberta purportedly conveyed 10 horses to Paula, but Roberta demanded return of the horses. Roberta filed suit 4 years after the purported conveyance, seeking damages, but Paula moved for summary judgment on the basis of the statute of limitations. The issue before the court was whether the 5-year breach bailment contract statute applied, or the 3-year return of properly statue applied. The court held that although the action was for damages, the 3-year statute nevertheless applied.

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Leier v. Purnell, 2004 WL 2830645 (Tex. App. 2004)

Leier negotiated with Schaffer to purchase an Appaloosa for showing. She initially agreed to a tentative price of $10,000, but eventually agreed to a price of $11,000, with the stipulation that the horse would remain with Scheffer to be prepared for showing (shoeing, vet and training). A few weeks after making this deal and paying for the horse, the horse died in the possession of Schaffer. No papers had been transferred. Leier demanded her money back, and then found out that the money had gone to the Purnells, who had actually owned the horse.

Leier sued the Purnells for breach of contract and money had and received. The Purnells were granted summary judgment. The court of appeals reversed. It first held that because the Purnells had given authority to sell the horse, Schaffer was an agent with actual authority. However, with respect to the sale conditioned on training, etc., the court held that the issue was a matter of ap-parent authority, and there was an issue of fact as to this issue. The court noted that evidence needed to be presented as to the standard of care of a principal in the same or similar circumstances as the Purnells.

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SECURITY INTERESTS AND LIENS

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2017

Steve Heathcott Arabians, LLC v. Griffith, 2017 WL 6616371 (Az. Ct. App. 2017)

Griffith boarded a horse with Heathcott, but she failed to pay the board bills. Heathcott refused to give her the horse until the board bills were paid, but Griffith surreptitiously absconded with the horse. Heathcott sued to enforce an agister’s lien, and obtained a judgment transferring the horse to him.

On appeal Griffith argued the court had no jurisdiction because the suit was an in rem action, which required the horse to be present in the jurisdiction. The court, however, stated that jurisdiction was based on personal jurisdiction, which entitled the court to determine rights to property outside its jurisdiction.

Griffith also argued that the agister’s lien was invalid because Heathcott had lost possession. The court rejected that argument because the lack of possession was a result of the wrongful acts of Griffith.

2014

Schoenholz v. Hinzman, 289 P.3d 1155 (Kan. 2012); 333 P.3d 2014 (Kan. Ct. App. 2014)

Schoenholz and Hinzman had an arrangement wherein Schoenholz provided horses for breeding and Hinzman maintained them on her farm, with proceeds from foals produced to be split. They ended their arrangement after an argu-ment but the horses were left on the property, even though Hinzman asked Schoenholz to remove them. Years later, Hinzman sold the horses and her farm.

Schoenholz sued Hinzman for conversion and Hinzman counterclaim for the costs of maintaining the horses. The trial court denied Schoenholz claim (based on the statute of limitations) and held that Hinzman was not entitled to damages for caring for the horses. The court of appeals upheld the ruling on Schoenholz’ claim but reversed as to Hinzman’s claim.

The Kansas Supreme Court granted review and analyzed the case as one in-volving the Kansas agister’s lien statute (an analysis that neither of the parties nor the lower courts had used). The court found that Hinzman failed to avail herself of the remedies in the agister’s lien statute. Even though she had acted in good faith in later selling the horses after caring for them many years, that act of selling the horses still constituted conversion of Schoenholz’s horses. Moreover, the statute of limitations had not run. Nor was there an abandon-ment, as the court of appeals had held, because the facts did not show that Schoenholz ever stated that she no longer owned the horses, even though she never got around to retrieving them. As for Hinzman’s counterclaim, the court

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remanded for a determination of whether she had a lien. If so, she was entitled to recover (as an offset against the conversion judgment) for the cost of caring for the horses. The court rejected the assertion that the doctrine of “gratuitous bailment” prevented recovery.

The later appeal to the Kansas Court of Appeals involved the imposition of sanctions against Schoenholz for discovery abuse. The court upheld the award.

2013

Gulf Coast Farms, LLC v. Fifth Third Bank, 2013 WL 1688458 (Ky. Ct. App. 2013)

Fifth Third had a loan to Gulf Coast, secured by its horse and those of an affiliated entity. Upon default, the bank foreclosed and sold the horses, and sued to collect the loan. The borrower counterclaimed, alleging that the bank committed fraud by not informing it that it intended to get out of the equine lending business. The trial court dismissed most of the counterclaim and granted summary judgment on the bank’s claim.

The court of appeals affirmed, holding that the duties of good faith and fair dealing did not preclude the bank from enforcing the agreement in accordance with its terms. It further ruled that the lending relationship was not a fiducia-ry relationship. It held that extrinsic evidence could not contradict the plain wording of the security agreement as to what collateral was to be pledged as security for the loan.

Williamson v. Curran, 714 F.3d 432 (7th Cir. 2013)

Williamson possessed a horse that had allegedly been stolen. A stable owned by her husband retained the horse pursuant to an agister’s lien for unpaid board. Williamson was arrested for horse theft but later acquitted because the court found that she had no intent to permanently keep the horse. She sued the sher-iff’s deputies under 42 USC § 1983 for violation of her constitutional rights. The district court dismissed the case on the pleadings. The court of appeals affirmed because the arrest warrants were facially valid, and the deputies had probable cause to believe that the stable was wrongfully possessing the horse and that she was involved in the stable.

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2012



DMS Farm, LLC v. Nelson, 2012 WL 1328600 (N.J. Super. Ct. App. Div. 2012)

Farm owner retained horses pursuant to an alleged lien, and sued for the fees owed. After a bench trial, the court awarded fees to the farm owner. On appeal, the court rejected the contention that the farm owner should not have been entitled to fees when he continued to stable the horses at the owner’s facility under duress. The court reasoned that because of the lien, the owner was entitled to detain the horses.

Theokary v. Abbatiello, 468 B.R. 729 (Bankr. E.D. Pa. 2012)

Debtor in bankruptcy leased two Standardbred horses. He was delinquent in paying the trainers of the horses. Just after the petition was filed, acting on the advice of their counsel, the trainers filed statutory stableman’s liens, and the horses were sold, which sale was confirmed by the state court. Debtor filed an adversary proceeding contending that this violated the automatic stay.

After a trial, the bankruptcy court determined that the lien sale violated the automatic stay because the leasehold interest was an interest in property of the estate. The court also held that the violation was willful, despite the (incorrect) advice of their counsel. 444 B.R. 306 and 460 B.R. 418.

The case proceeded to a trial on damages for violation of the automatic stay. The debtor produced an expert report that claimed one million dollars in dam-ages, based in part on the assumption that each mare would produce 7 foals per year. The defense expert opined that the aggregate value of all the horses was $4,000. The court disqualified the debtor’s expert because the report turned out to have been falsely represented as having been prepared by the expert. The court also dismissed the case because these circumstances amounted to a fraud on the court.

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2011

Everson v. Everson, 2011 WL 4801884 (D. Az. 2011)

Plaintiffs entrusted sixteen horses to their son and his girlfriend, who later as-serted a stableman’s lien. Plaintiffs sued for fraud on the court, abuse of process, and conspiracy after the horses were sold. The court granted the defendants’ motion for summary judgment on all counts. 2010 WL 729242 (D. Az. 2010).

Horse owner and lien claimant entered into a settlement agreement, which one party claimed in a later action was breached. The district court granted summary judgment on the numerous claims of the disgruntled party.

JLG Enterprises, Inc. v. Excalibur Sires, Inc., 2011 WL 1103325 (E.D. Cal. 2011)

In this action to enforce agister’s lien (cattle), conflicting evidence existed as to who owned the bulls and thus whether the agister’s lien was valid. The court held that there appeared to be implicit authority to incur the agister services regardless of ownership, thus the liens were presumptively valid. The owner also argued that in the interest of equity, the bulls should not be sold, based on an agreement that had been reached. The court stated that balancing the hardships was not the proper test, but regardless, the equities did not favor halting the sale given that “with each day passing” the agister incurs “additional damages for servicing and housing the bulls.” A showing of irreparable injury is not necessary to justify a sale unless the sale is without notice to the owner.

2010

Banks v. Zinke, 2010 WL 2556965 (Cal. Ct. App. 2010)

Banks boarded horses with Zinke. Zinke asserted an agister’s lien on some of the horses, and the court ordered them sold in conformity with the statutory procedure. Banks appealed. The court of appeals held that an order of sale was not appealable.

Becker v. Longinaker, 2010 WL 1578400 (Iowa Ct. App. 2010)

Bank had a mortgage on Morgan’s land and a security interest in her horses. When Morgan fell behind on her loan payments, the bank foreclosed on the land. The decree stated that the bank waived any deficiency judgment. Just prior to the foreclosure, Morgan moved her horses to Becker’s farm.

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Despite the decree, to collect the deficiency, the Bank surreptitiously entered onto Becker’s farm and took Morgan’s horses and some of Becker’s horses. The bank officer sought to extract more money and a release in exchange for returning the horses. Morgan and Becker sued the bank and its loan officer. The trial court granted the plaintiffs a summary judgment for conversion, and the jury awarded verdicts for trespass and extortion, and damages, including punitive damages against the bank and its officer.

On appeal, the defendants argued that the damage award was excessive. The court of appeals agreed that damages for the emotional distress of the horses was improper, but upheld damages for the emotional distress of the owners. The court upheld the verdict for extortion and the award of punitive damages.

2009

McGuire v. Sontag, 2009 WL 736188 (Ind. Ct. App. 2009)

McGuire and Sontag owned horses together. A co-owned horse was sold by McGuire to a third party on credit, but only McGuire signed the bill of sale, and did not remit half the down payment to Sontag. The sale fell through and the down payment was returned to McGuire. After a bench trial, the trial court awarded half the down payment to Sontag. The court of appeals reversed, holding that Sontag had ratified both the sale and the rescission.

Mirabella v. Saint Claire Livestock Investments, Inc., 2009 WL 5197842 (S.D. Fla. 2009)

Mirabella alleged it paid $150,000 for a half-interest in a Paso Fino horse, pursuant to an agreement with Saint Claire. It alleged that the principal of Saint Claire foreclosed on the half-interest under a statute designed to protect stable owners who care for abandoned horses. The court held that the com-plaint stated a claim.

Pivnick v. White, Getgey & Meyer Co., 552 F.3d 479 (6th Cir. 2009)

Pivnick purchased a horse for $410,000, but defaulted. The secured party sold the horse at a private sale. Pivnick challenged the sale, but the court held that a private sale is not necessarily unreasonable. Under the UCC, the secured party has the choice of selling at a public sale or a private sale. According to the district court, the fact that after training the horse sold for a much higher price also did not make the sale unreasonable. 2007 WL 356694 (S.D. Ohio 2007).

Pivnick sued his law firm for alleged failure to pursue the case, as the case was dismissed. The firm defended on the basis that the claim was unwinnable, and

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the jury returned a verdict in their favor. The court held that the notice from Fasig-Tipton as to the subsequent sale of the horse was “not commercially un-reasonable” because it gave a specific date after which the creditor may proceed to dispose of the collateral, although the letters were not particularly specific. Further, Pivnick did not show that the re-sale of the horse was unreasonable, and thus was not harmed in any event. The court of appeals also held that the jury instructions, which put the burden on Pivnick to prove unreasonableness of the notice or sale, were proper.

Sanders v. Anderson Victory Training Center, LLC, 2009 WL 3486772 (Ky. Ct. App. 2009)

Sanders owed a training center for stall rent, and training center sued. Sanders counterclaimed for wrongful attachment of liens. The training center obtained a summary judgment for stall rent. The order specifically stated that the claim for additional stall rent, and the counterclaim, remained pending. Later, the court entered another judgment dismissing the counterclaim, and a judgment awarding additional stall rent.

On appeal, Sanders argued that CR 59’s 10-day limit prohibited the judgment for additional rent. The appeals court rejected this argument because the issue was specifically reserved, and the judgment for additional stall rent was not an amendment, but a judgment on a reserved issue.

2008

Posey v. Mollohan, 2008 WL 747890 (Ala. Civ. App. 2008)

Horse owner sued trainer when trainer refused to return horse, which he held purportedly pursuant to Alabama’s Agister’s Lien Statute. After a bench trial, the trial court ordered the horse returned. On appeal, the court of appeals held that the ruling was not final and appealable because the counterclaims of the trainer, including the claim of an agister’s lien, had not been adjudicated.

State v. Winston, 21 Misc. 3d 881, 864 N.Y.S.2d 2008 (N.Y. App. Div. 2008)

SUNY sued horse owner whose horses (mares and a yearling) were boarded at SUNY, to enforce a lien asserted for delinquent charges in keeping the horses. SUNY requested an order of sale to sell the horses in the Saratoga fall sale, arguing that a quick sale was necessary because the horses needed to commence training in the fall. The owner resisted, arguing that the charges were disputed and a spring sale is more appropriate because a buyer would not have to keep the horses as long in order to breed them. The court denied the motion, hold-

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ing that SUNY did not show that the value of the horses would substantially decrease before spring. The court also noted that SUNY was not entitled to the “proceeds of sale” under the lien statute, because the statue contemplated a sale without court order, and SUNY did not avail itself of that remedy.

2004

The Huntington Nat’l Bank v. Global Publishing Papers, Inc., 853 A.2d 396 (Pa. Super. Ct. 2004)

This case involves issues of choice of law and lien perfection where one state has adopted the Revised UCC and another has not. Wheeler was a Florida res-ident. UAB’s $1.7 million loan to Wheeler was secured with his Standardbred horses and USIA registration certificates. UAB filed a financing statement in several states, including Florida. Wheeler defaulted on his loan and consent-ed to sell his horses at auction by the Standardbred Horse Sales Company, consigned by Northwood.

The auction was in Pennsylvania. After the auction, Huntington Bank issued a writ of execution against the proceeds from the sale of the horses. Standard-bred and Northwood claimed commissions. A priority battle ensued, made complicated by the fact that the Revised UCC was in effect in Pennsylvania but not in Florida at the time of execution. The trial court, on cross-motions for summary judgment, sided with Huntington because UAB had not filed its financing statement in Pennsylvania, the location of the collateral at the time of the auction.

On appeal, the court recognized the complexity of the issues involved because the two versions of the UCC differed not only in perfection law, but in choice of law. Ultimately, the court held that the UCC transition rules of the forum state (Pennsylvania) was the starting point, and determined that because the priorities of the parties was not established until Huntington filed its writ, Pennsylvania’s Revised UCC governed the issue of choice of law for perfec-tion. Revised Article 9 directs the court to apply the substantive law of the perfection state to determine perfection. When UAB attempted to perfect the security interest, that state was Florida, which had the old UCC. Thus perfection was proper at the time of perfection. Thus UAB had priority over Huntington.

The court also held that Northwood was entitled to its commission (which UAB conceded), but was not entitled to contractual costs and expenses from the proceeds.

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Medlin v. Morganstern, 601 S.E.2d 359 (Ga. Ct. App. 2004)

Lois March owned a Paso Fino mare, which was boarded and trained by San-dye Medlin. March and Medlin entered into a written foal sharing agreement whereby Medlin would breed the mare to her stallion, and March would keep the foal. Medlin then agreed to trade the pregnant mare to Marsha Seilbeck, who directed the horse be delivered to the Morgansterns. Seilbeck was indebted to the Morgansterns, who eventually foreclosed on its agister’s lien.

The mare subsequently gave birth to a colt. March demanded possession of the colt, which the Morgansterns refused because of unpaid care and maintenance. March sued for tortious interference with the contract, and for possession of the colt. The Morgansterns counterclaimed on their agister’s lien.

The trial court granted summary judgment to the Morgansterns. The appeals court first reviewed the intentional interference claim. It held that there was not evidence that the Morgansterns knew of the interest of March in the colt, nor was there “constructive notice” of their interest because March did not file a financing statement to “perfect” her interest in the colt or to perfect her stallion service lien. (The court did not explain how an ownership interest is “perfect-ed” under the UCC.) According to the court, without actual or constructive knowledge of March’s interest, no tortious interference could have occurred.

The court, however, reversed the summary judgment on the possession claim, holding that there was an issue of fact as to March’s ownership of the colt. But the colt would nevertheless be subject to the Morganstern’s agister’s lien.

2003

Carney v. Wallen, 665 N.W.2d 439 (Iowa Ct. App. 2003)

The Carneys entrusted a couple of their horses to the Wallens for training. A dispute arose over the training bill, and the Wallans held on to one of the horses. To retrieve the horse, the Carneys filed a petition for writ of replevin. The Wallens counterclaimed based on Iowa’s agister’s liens and a “common law lien.” The appeals court agreed with the trial court that a trainer was not a “keeper, herder, or feeder of stock” under the agister’s lien statute. “While we acknowledge some of the duties inherent in training a horse may overlap the duties inherent in keeping a horse, we concluded that the statute was not intended to cover trainers of horses...” The court also held that intermittent possession of a horse did not entitle the trainer to a common law lien.

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2000

Silberman v. Maxfield, 238 F.3d 430 (9th Cir. 2000)

The Ninth Circuit held that the bankruptcy court was not barred by a non-final determination of agister’s lien rights.

1999

Cunningham v. Harding, 996 P.2d 885 (Mont. 1999)

Cunningham, a Colorado resident, purchased four horses from Harding, a Montana resident, and transferred the horses to her ranch in Montana. While on a trip through Colorado, Harding stopped to visit Cunningham. During the visit, Harding agreed to keep the horses while Cunningham had surgery. Later, Harding refused to return the horses, and Cunningham sued for possession. Harding defended on the grounds that there was a verbal agreement allowing him to repurchase the horses, and because he had an agister’s lien. The trial court granted summary judgment to Cunningham, but the Montana Supreme Court reversed. The court held that the assertion of an agreement created an issue of fact precluding summary judgment, and that the agister’s lien claim had to be tried to determine the reasonableness of the claimed charges.

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455

Slaughterhouses

SLAUGHTERHOUSES

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457

Slaughterhouses

2007

Cavel International, Inc. v. Madigan, 500 F.3d 544 (7th Cir. 2007)

Illinois horse slaughterhouse, which exported horse meat for human consump-tion, sued to enjoin the enforcement of an Illinois statute which prohibited such practice. The district court denied the injunction, and the slaughterhouse appealed. It sought an injunction pending appeal. The appeals court granted the injunction. It held that the potential effect of the statute on the slaughterhouse (permanent closure) far outweighed the potential damage to the state (it rejected that slaughter of horses was the state interest, as slaughter for pet food was allowed) if the injunction were not issued. It also held that the slaughterhouse had raised at least an arguable issue that the statute was unconstitutional, be-cause there was an effect on export commerce, and the state interest – which again could not be to prevent slaughter of horses – was unclear.

Empacadora de Carnes de Fresnillo S.A. v. Curry, 476 F.3d 326 (5th Cir. 2007)

Texas slaughterhouses that processed horsemeat for human consumption sued the attorney general to enjoin their prosecution under a Texas law that pro-hibited the practice. The district court granted the injunction because the law was preempted by federal law, specifically the Federal Meat Inspection Act, and was thus void under the Supremacy Clause. The district court also held that the statute violated the Commerce Clause. The court of appeals reversed, holding that the exclusive right of the federal government to inspect meat and make labeling requirements does not limit the ability of a state to determine what type of meat may be sold for human consumption. The court of appeals also held that the Commerce Clause was not violated because the state had a justification for the statute, although it created some incidental burden on interstate commerce, and was not an act of “economic protectionism.”

The Humane Soc’y v. Johanns, 2007 WL 1120404 (D.C. Cir. 2007)

The Humane Society sued to challenge the Department of Agriculture’s rule allowing a fee-for-services inspection of slaughterhouses for horse-meat con-sumption. In an interim ruling, the court declared the rule to be a violation of the National Environmental Policy Act. An intervening defendant sought a stay, which was denied by the court.

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459

Statute of Limitations

STATUTE OF LIMITATIONS

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461

Statute of Limitations

2006

Adika v. Smith, 466 F.3d 503 (6th Cir. 2006)

Shabtai Adika was the agent for Jockey Mike Smith, who rode UNBRIDLED’S SONG. An oral agreement existed whereby Smith would share 30% of his earn-ing with Adika. When UNBRIDLED’S SONG retired to stud, Smith received an annual breeding right. None of the income from that right was shared with Adika. Adika sued Smith and Paraneck Stable for his percentage of the fee. Smith moved for summary judgment on the basis that the claims were barred by the five-year statute of limitations applicable to oral contracts in Kentucky. The trial court granted summary judgment. It held that a letter from Paraneck Stable that it was the intention that Smith get the breeding right and share the income with Adika did not create an actual duty on the part of Smith to share the fee. Nor could Paraneck Stable be liable for the portion of the fee, as that was a matter of the agency agreement with Smith.

The court of appeals affirmed. It agreed with the trial court that the letter created no duty on the part of Smith. The court also held that the statute of limitations had run on his claim because the contract was terminated in November 1999, and suit was not brought until after the five-year limitations had expired. The court rejected Adika’s argument that the agreement created a bailment, creating a new cause of action.

2005

Vaughn v. Krehbiel, 367 F. Supp. 2d 1305 (D. Colo. 2005)

Vaughn boarded horses with the Krehbiels. The Krehbiels filed an agister’s lien, and thereafter refused Vaughn access to her horses. The Krehbiels solic-ited the sheriff to assist in permitting access. Vaughn sued in state court for an injunction. The next day, the Krehbiels filed a state court action to foreclose on the agister’s lien. The court eventually ruled that the lien was void.

Some two years later, Vaughn sued the Krehbiels in federal court for breach of contract for failure to adequately care for the horses, a § 1983 claim for civil rights violations, tortious interference with contract, negligence, malicious prosecution, and conversion. The district court ruled that most of these claims were barred by the two-year statute of limitations because the claims generally accrued when Krehbiel determined she would not be allowed on the farm. Other claims were dismissed on res judicata grounds as having been determined, or which sought injuries similar to those from claims already determined, in the prior state court action.

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2004

Demarest v. Broadhurst, 92 P.3d 1168 (Mont. 2004)

Roberta purportedly conveyed 10 horses to Paula, but Roberta demanded return of the horses. Roberta filed suit 4 years after the purported conveyance, seeking damages, but Paula moved for summary judgment on the basis of the statute of limitations. The issue before the court was whether the 5-year breach bailment contract statute applied, or the 3-year return of properly statue applied. The court held that although the action was for damages, the 3-year statute nevertheless applied.

2000

Red Arrow Stables, Ltd. v. Valesquez, 725 N.E.2d 110 (Ind. Ct. App. 2000)

Service on Girl Scouts was defective, and thus complaint was dismissed on the basis that the statute of limitations had run.

463

Syndications, Partnerships, and Business Organizations

SYNDICATIONS, PARTNERSHIPS, AND BUSINESS ORGANIZATIONS

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2015

Linderman v. Nichols, 2015 WL 164872 (D. Or. 2015)

Linderman and Huggins were general partners in a partnership that owned breeding rights in an Arabian stallion, and the resulting offspring. Huggins later had the horses transferred to a third party entity. Linderman sued Huggins and the transferees for breach of fiduciary duty, constructive fraud, and conversion.

The transferees moved for summary judgment. As to the constructive fraud claim the court determined that there was some basis in Oregon law for liability for aiding and abetting a breach of fiduciary duty. The fact that the transferees could have checked the AHA breed registry to determine that registration was at one time in the name of the partnership, was sufficient evidence to create an issue of fact to defeat summary judgment.

Likewise, the court denied the motion for summary judgment on the conversion claim, as there was an issue of fact as to whether the transferees were “merely innocent purchasers.”

2014

Fifth Third Bank v. Gulf Coast Farms, LLC, 573 F. App’x 515 (6th Cir. 2014)

A partnership called Gulf Coast Farms Bloodstock owned a share in the stallion, which stood at WinStar. When one of the partners withdrew, the share was supposedly transferred to an LLC (Gulf Coast Farms, LLC), whose members were the remaining partners. Fifth Third Bank made a loan, taking all of the LLC’s stallion shares as collateral. The LLC later defaulted, and Fifth Third sought to foreclose.

In the meantime the partnership sold the share to WinStar for $220,000. WinStar’s books showed the partnership still owned the share. The funds were escrowed and became subject to a suit by Fifth Third claiming those funds, contending that its debtor, the LLC, owned the share. After discovery, the district court granted summary judgment to the Bank on the basis that the undisputed evidence showed that the LLC had owned the share.

The court of appeals affirmed. It reviewed the evidence and found it to over-whelmingly supporting ownership by the LLC. Significant was the fact that the share was on a collateral list for the LLC. The partnership’s tax returns supported the assertion that it had transferred the share to the LLC. The as-sertions of the LLC in the foreclosure action supported the bank. The court of appeals dismissed the assertion of the partnership that the bank should have investigated the ownership more thoroughly, noting that that was irrelevant

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to ownership. The court also rejected the relevance of WinStar’s ownership records.

KNC Investments, LLC v. Lane’s End Stallions, Inc., 2014 WL 4290159, and 2014 WL 4290184 (6th Cir 2014)

KNC owned a share in the syndicated Thoroughbred stallion LEMON DROP KID. It had previously sued Lanes End, the syndicate manager, for declaratory judgment concerning its duties under the syndicate agreement, and asserted claims for breach of associated fiduciary duties. The court ruled in favor of Lanes End in that suit. KNC filed a second suit also asserting claims for breaches of the syndicate agreement and associated fiduciary duties. Lanes End’s motion to dismiss was granted. On some counts, the prior suit constituted res judicata. On other counts, making allegations concerning conduct after the first suit was decided, the court dismissed the claims. It held that the syndicate agreement defined the duties, and although Lanes End was an agent for the owners, because the relationship was defined by the syndicate agreement, no additional implied agency or fiduciary duties existed as a matter of law.

An appeal was brought from the prior KNC lawsuit brought by KNC against Lane’s End, where the district court held that KNC had no right, as a syndicate member, to syndicate records. While the appeal was pending, the members of the Syndicate except KNC voted to amend the Syndicate Agreement and ratify Lane’s End’s actions as Syndicate Manager. Lanes End moved to dismiss the appeal on the basis of mootness, as it had amended the syndicate agreement to prohibit the release of syndicate information. The Sixth Circuit remanded the matter to the district court to consider the issue. It noted, though, that “Kentucky law treats owners of horse-ownership syndicates as tenants in common,” and thus the corporate-statute right of inspection of records is irrelevant. The district court granted the motion, which ruling was again appealed to the Sixth Circuit.

The Sixth Circuit affirmed in a split decision, upholding the right of the mem-bers to ratify the actions over the objections of a syndicate member because the method of amendment to the syndicate agreement was followed. The court largely relied on Kentucky law as expressed in Weisberg/Etkin/Goldberg v. Gainesway Mgmt. Corp., 2008 WL 820950 (Ky. Ct. App. 2008).

The dissent argued that the dicta in the unpublished intermediate court case of Weisberg/Etkin/Goldberg v. Gainesway Mgmt. Corp., was dubious precedent because it was inconsistent with Kentucky law as established in published cases. The dissent agreed with the dismissal, however, because there clearly were no damages to KNC.

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2011

Lanes End Stallion, Inc. v. Andrews, 2010 WL 5146567 (E.D. Ky. 2010), 2011 WL 310237 (E.D. Ky. 2011)

Sale of stallion shares, subject to rights of first refusal of other syndicate members, included large commissions. The syndicate manager sued the sellers and agents in Kentucky state court for an injunction. One of the sellers and one of the agents sued in state court in California. The Kentucky action was removed to federal court, and some of the defendants sought to have the case transferred to California. The court denied the motion.

Prior to removal, the syndicate manager sought and obtained a TRO enjoining deadlines to match on the basis that not all material terms and conditions had been disclosed by the sellers. Prior to removal, the defendants sought to dissolve the TRO. The syndicate manager sought a temporary injunction on the basis that the deal was essentially a ruse to inflate the price to avoid a match, as the organization acting as the purported agent was a dual agent, partially owned the purchasing entity, and the commission was much higher than industry standards. These motions were pending before the federal court after removal.

The court granted the defendants’ motion to dissolve the TRO, ordered the syndicate manager to immediately poll the syndicate, and denied the syndicate manager’s motion for a TRO. It noted that the syndicate agreement merely required that the syndicate members be notified that they have a right to match “on the same terms”.

R & R Capital, LLC v. Merritt, 2009 WL 1089559, 2009 WL 1653097, 2009 WL 1812797, 2009 WL 1971389 (E.D. Pa. 2009), 2011 WL 1668981 (3d Cir. 2011) (see also 2009 WL 2937101 (Del. Ch. 2009))

R&R Capital and Merritt had a close business relationship, including the joint purchase of horses. Merritt purchased three “pinhooking” horses at the Fasig-Tipton “Sarasota Springs, Florida” sale, placed them in a jointly-owned company, and then sold all interest to R&R, although they remained in the possession of Merritt to manage. Merritt retained possession because board bills were owed.

R&R sought to rescind the sale of one horse due to failure to disclose lami-nitis. At the bench trial the court found that Merritt had tried unsuccessfully to return the horse to Fasig-Tipton after it was determined that the horse had laminitis. The court held that the failure to disclose the diagnosis, and the attempted return, was a material omission given the representation made to R&R by Merritt that the horse was one of “the three best yearlings” at the sale.

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Merritt contended that, in fact, the horse did not have laminitis, and the di-agnosis was incorrect. The court held that even the incorrect diagnosis was “material to a reasonable purchaser” and thus should have been disclosed.

Merritt also claimed that she was not the seller, but that the entity, Pandora, owned the horse and thus it was the seller. The court held that Merritt was the seller, largely based on the endorsement on the Jockey Club foal registration papers that listed her as the owner. The court awarded Merritt a judgment on her counterclaim for some expenses incurred in keeping the horse, but denied many claimed set-off expenses.

The court also held that R&R was entitled to replevin of the other two horses. The court held that Merritt had a valid possessory lien and was thus entitled to reimbursement of amounts owed as a condition of the replevin.

In the second decision, the court ruled that Merritt had not violated the court order prohibiting the “sale or disposition” of the horses by gelding a horse, or by leasing horses for racing where prior notice of the lease had been given.

In the third decision, the court refused to set aside the judgment based on a ruling by a New York court in a companion lawsuit.

In the fourth decision, the court denied a motion to reconsider the prior ruling.

The Third Circuit affirmed the third and fourth decisions.

2010

Racing Investment Fund 2000, LLC v. Clay Ward Agency, Inc., 320 S.W.3d 654 (Ky. 2010)

Racing Investment Fund 2000, (“RIF”) was a limited liability company man-aged by Gaines-Gentry to purchase and breed Thoroughbreds. It insured the horses through the Clay-Ward Agency. It defaulted on its premium payments and was subsequently sued. It agreed to judgments for principal and interest on the premiums, but only made partial payments. Clay-Ward moved for contempt sanctions for failure to pay the judgments in full, and the trial court held RIC in contempt.

The contempt sanctions were upheld by the Kentucky Court of Appeals. It held that the “capital call” provision in the LLC operating agreement effectively waived the limited liability afforded the members of an LLC, and ordered RIF to make the capital call. It also held that contempt sanctions were an appropriate remedy for failure to pay a judgment, despite the statutorily-mandated method of collecting a judgment.

On discretionary review, the Supreme Court of Kentucky reversed. It held that the principal of limited liability continued despite the capital call provision in

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the operating agreement, and that the operating agreement did not authorize a “court-ordered capital call.”

2008

Pugliese v. Mondello, 57 A.D.3d 637, 871 N.Y.S.2d 174 (N.Y. App. Div. 2008)

Pugliese and Mondello were partners in a horse under an oral partnership agreement. Pugliese claimed that Mondello was paid $50,000 as a capital contribution but it was converted to Mondello’s own use. Mondello counter-claimed, asserting that the horse was sold in a claiming race for far less than its actual value. The trial court granted summary judgment to Pugliese on the counterclaim. The court of appeals affirmed, holding that the business judgment rule applied, and because there was no evidence of fraud, self-dealing, or other misconduct, the rule immunized the partner from liability. However, the court of appeals ruled that Pugliese was not entitled to summary judgment for the return of the $50,000 because there was a dispute as to what the payment was for.

Weisbord/Etkin/Goldberg v. Gainesway Mgmt. Corp., 2008 WL 820950 (Ky. Ct. App. 2008)

Syndicate members asserted that acceptance of right-of-first refusal match violated the syndicate agreement because it was not accompanied by a check as required. The trial court held that although the syndicate agreement was not complied with, the complaining syndicate members had also received a waiver of strict compliance and thus were estopped from claiming a breach. The Kentucky Court of Appeals affirmed.

2005

Never Tell Farm, LLC v. Airdrie Stud, Inc., 123 F. App’x 194 (6th Cir. 2005)

Airdrie Stud stood the stallion YOU AND I pursuant to a 40-share syndicate. The syndicate agreement contained the usual provision that a sale of a share was subject to the right of first refusal of other share owners. The match had to be made in 10 days of receipt of an “acceptable offer.” Airdrie received an offer to buy a controlling interest in the stallion, which offer was sent to syndicate members. A syndicate member purported to exercise its right of first refusal on all accepting shares, but Airdrie refused to recognize the match on the basis that it was untimely. The share owner sued, and the district court agreed with Airdrie that the match was untimely as more than 10 days had elapsed since

470


Airdrie received the offer. On appeal, the share owner argued that the offer was contingent, thus not an “acceptable offer.” The Sixth Circuit couldn’t figure out what “acceptable offer” meant, so it remanded for an evidential determination of the meaning of “acceptable offer.”

2000

Duckson v. Cargill, 2000 WL 2840774 (Ark. Ct. App. 2000)

Paul Duckson and Sharon Cargill began living together in 1992. They pur-chased a horse farm jointly, listing themselves in the title as husband and wife. Paul brought an action to dissolve what he alleged to be a 50-50 partnership to raise horses, but that he had paid for the farm and thus asked the court to recognize his contribution to the partnership. Sharon claimed that her half interest in the farm was a gift to her, and that she and Paul were tenants in common. The trial court agreed that the parties were partners, and awarded the horses to Paul because of his contribution. The trial court ruled, however, that the real estate was owned as tenants in common, and awarded partition.

Noel v. Johnson, 2000 WL 1335304 (Wash. Ct. App. 2000)

Noel and Johnson entered into an oral agreement to purchase a horse. The horse was registered in the name of Johnson only. Johnson agreed to furnish the purchase price, and Noel agreed to cover ongoing expenses and train the horse as a show jumper and later sell him, with the proceeds to be divided. Noel sued for a dissolution of partnership, accounting, and breach of fiduciary duty, claiming among other things that Johnson sold the horse at auction to her husband for a very low price. The court held that although the parties did not call themselves partners, they created a legal partnership. Therefore, Noel was entitled to an accounting and breach of fiduciary duties.

1999

Fellman v. Southfield Farms Corp., 747 So. 2d 1035 (Fla. Dist. Ct. App. 1999)

Fellman and Southfield Farms had orally agreed to jointly purchase a horse. Each put up one-half of the purchase price and acquired the horse. Southfield Farms sent Fellman a limited partnership agreement, which she refused to sign because it did not reflect what she believed to be the arrangement for the part-nership (she wanted equal management of the horse). The trial court ruled that the parties had merely an oral agreement, which Fellman breached. Thus the trial court awarded Southfield Farms damages in the amount of its half of the

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purchase price. The court of appeals reversed, holding that because the horse was, in fact, co-owned, a partnership was created, requiring an accounting to settle partnership affairs, rather than a a legal remedy.

Heina v. La Chucua Paso Fino Horse Farm, Inc., 752 So. 2d 630 (Fla. Dist. Ct. App. 1999)

Shareholders sued corporation and other shareholders as a result of deadlock in management. Among the conflicts was a claim that the managing shareholders had the horses shown in their own name, so no publicity benefit ever inured to the corporation. The controlling shareholders also boarded their personal horses at the farm for free. They were also charged with self-dealing on the sale and breeding of corporate horses. The appeals court ruled that an accounting and constructive trust were warranted, and that controlling shareholder was liable for attorney fees.

Ranier v. Kiger Ins., Inc., 998 S.W.2d 515 (Ky. Ct. App. 1999)

This is the next chapter in the continuing litigation over whether Phyllis Ranier owes Kiger premiums for equine insurance purchased by Shadowlawn Farm. Phyllis was at one time a partner in Shadowlawn Farm, but the partnership dissolved and her son, Harry, later incorporated. On the first appeal, the court of appeals remanded the case to the trial court to credit post-dissolution payments made by Harry. On remand, the trial court held that it would be unfair to do so. On the subsequent appeal, the court of appeals recognized the wisdom of the trial court’s decision, but reversed because the directive on the first appeal was the law of the case, and had to be followed. The court of appeals also upheld the trial court’s determination on remand that Phyllis was not liable for post-dissolution partnership debts, because although Kiger did not get adequate notice of the dissolution, it was not aware that Phyllis was a partner to begin with.

1998

DiMario v. Coppola, 10 F. Supp. 2d 213 (E.D.N.Y. 1998)

John DiMario, former trainer of RUNAWAY GROOM, alleged that he had an oral employment agreement with the owner that not only entitled him to the customary 10% of the horses winnings, but to 10% of the proceeds from syndication of the horse. When RUNAWAY GROOM was syndicated in 1983, he received only a lifetime breeding right. DiMario sued in 1995. The court ruled that an oral contract was enforceable, and that custom in the industry could be used to determine the terms of the agreement. However, expert tes-

472


timony indicated that the “near universal” custom was to grant the trainer a lifetime breeding right upon syndication. Thus the defendant was entitled to summary judgment.

The court also ruled that the 6-year statute of limitations was no bar. Although the statute began to run the day the first share in the syndicate was sold, and not when the syndication was “complete” with respect to the sale of all the shares, the statute of limitations was nevertheless no bar because there had been “partial performance.”

The court further ruled that the promise to grant compensation upon syndication would not have been barred for lack of consideration, because a New York statute holds that past consideration is sufficient consideration and because the promise was supposedly made before the services were rendered in any event.

As for the claim that the alleged promise is unenforceable because of vagueness, the court ruled that the value of the promised consideration was reasonably determinable because although the value of shares may fluctuate, “similarly to market traded stock, it is possible at any given time to determine ten percent of the value of all forty shares.”

Leal v. Holtvogt, 702 N.E.2d 1246 (Ohio Ct. App. 1998)

The Leals, novices in the horse business, became interested in starting an Arabian breeding operation. The Holtvogts, from whom they were learning how to ride and handle horses, sold them a one-half interest in a stallion, MC QUE JABASK, for $16,000. The Holtvogts allegedly represented that MC QUE JABASK was a national champion and was capable of attaining national show titles again. The Holtvogts did not reveal that the stallion had been treated for lameness. After the stallion became a disappointment, Mrs. Leal began making disparaging remarks about the Holtvogts, and demanded her money back. MC QUE JABASK died from stomach ulcer complications.

The Leals filed suit against the Holvogts for breach of warranty, negligent misrepresentation, and fraud. The Holtvogts counterclaimed for defamation and for failure to pay a board bill. The Leals presented evidence from a veterinarian that the stallion had been chronically lame when purchased.

The trial court awarded the Leals $16,000 for negligent misrepresentation and breach of warranty, and awarded the Holtvogts $1,000 for defamation. It held that the Leals did not sustain their burden of proving fraud. Both sides appealed.

On appeal, the court held that a claim of negligent misrepresentation cannot be based on an omission, but can only be based on a false representation. However, it concluded that the trial court was within its discretion in holding that false statements were “negligently” made by the Holtvogts when they stated that the stallion was fit to be shown, particularly since the Leals were novices in

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the horse industry. The court held that the Leals’ reliance was justified because they trusted the Holtvogts. The court also dismissed the contention of the Holtvogts that the lameness did not affect the value of MC QUE JABASK as a stallion because evidence was presented that “a person could not successfully advertise a stallion for stud unless it was actively being shown.”

The Holtvogts also contested the finding of breach of warranty by arguing that the UCC Article 2 did not govern the transaction because the stallion was not “goods,” that the purchase of the interest in the stallion was not a “sale” under the UCC, and that their statement did not amount to an express warranty. The appeals court rejected the first two arguments, but held that the statements made in connection with the sale were mere “puffing.”

The court held, however, that the implied warranty of fitness was nevertheless breached. The appeals court also noted that the “integration clause” in the partnership agreement executed by the parties did not preclude an implied warranty of fitness.

The court of appeals also sustained the trial court’s determination not to award the Holtvogts a judgment for one-half the amount of the expenses incurred in maintaining the stallion after its purchase, because “the Holtvogts should not be able to collect half the costs incurred under a partnership which they misled the Leals into entering.”

The appeals court also held that the trial court erred in not finding fraud. The appeals court held that the failure to disclose MC QUE JABASK’s lameness amounted to a fraudulent omission. The duty to disclose arose out of the fact that the Leals trusted the Holtvogts.

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475

Taxation

TAXATION

476


477

Taxation

2015

Dep’t of Revenue v. Shinin’ B Trailer Sales, LLC, 471 S.W.3d 309 (Ky. Ct. App. 2015)

Kentucky Department of Revenue took the position that sale of horse trailers that included living quarters did not qualify for sales tax exemption for ve-hicles intended for carriage of freight. Because the trailers were intended for the transportation of horses, the court of appeals rejected the position of the Department, and held they were exempt from sales tax.

Metz v. Comm’r, T.C. Memo. 2015-054 (T.C. 2015)

Henry and Christie Metz, owners of an Arabian horse farm, who had made a fortune in the baking business, lost millions of dollars between 2004 and 2009, causing the IRS to conclude “that any business that lost this much money couldn’t possibly be motivated by a desire to turn a profit and disallowed the losses.”

In a colorful opinion laced with equine clichés, the Tax Court concluded that the Metzes “did have a subjective intent of making a profit,” albeit perhaps an unreasonable one. The court emphasized that the mere fact of losses is not determinative, and subjective intent should be gleaned from objective factors, including the nine regulatory factors, in determining the existence of a profit motive. The court discussed at length the “turmoil” of the Arabian market, and the long struggle the Metzes had with making their Arabian farm successful. Ultimately hey were able to improve their revenue and cut their losses after 2009. In applying the nine factors, the court noted that the Metzes conducted their Arabian business in a business-like manner, even noting that they consulted with experts, hired a CPA firm and what they believed was an experienced equine lawyer and used actual breeding contracts. Further, they had actual business plans, extensively advertised and promoted their business, and attempted to make changes to their operation to increase profitability. The failure of the Metzes to track expenses on a horse-by-horse basis was not considered by the court to show lack of a profit motive. Neither was the failure of the Metzes to conduct “a comprehensive market analysis” which the court described as not “such a big deal.” Ultimately, the court was persuaded that the losses resulted from depressed market conditions, which the Metzes explained “at great length and very convincingly that this is just what happened to them.”

478


2014

Annuzzi v. Comm’r, T.C. Memo. 2014-233 (T.C. 2014)

Husband and wife were owners of a successful business that generated con-siderable salaries, but had for many years also engaged in Thoroughbred horse ownership, largely through co-ownership with their trainer. Although they initially had some success, from 1989 through 2010 they almost consistently experienced losses. The IRS disallowed the deduction of losses for 2009 and 2010 on the basis that the taxpayers did not engage in the horse business with a profit motive. The Tax Court reviewed the regulatory factors to be considered, and concluded from the evidence that three factors strongly favored the tax-payers, two factors slightly favored the taxpayers, three factors slightly favored the IRS, and one factor was neutral, and thus were “fairly closely balanced.” However, the court concluded that the preponderance of the evidence revealed a profit motive. Most persuasive, according to the court, was the fact that the taxpayers co-owned their horses with the “savvy and experienced” trainer, who would have a motive to make a profit.

Lachani v. Comm’r, 142 T.C. 151 (T.C. 2014)

Accountant was also a professional gambler. He reported his gross winnings on schedule C, deducting amounts he bet as ” cost of goods sold.” Most years resulted in losses, which he deducted from his accounting income. He claimed that the § 165(d) limitations were inapplicable to professional gamblers, arguing that otherwise the statute would violate the Equal Protection clause. The Tax Court did not agree.

Tolin v. Comm’r, T.C. Memo. 2014-65 (T.C. 2014)

Lawyer with a long-time interest in horse racing acquired a racehorse, which was unsuccessful due to injury, so he retired him to stud in Louisiana. A couple of years of effort failed to yield successful results. The IRS disallowed losses and expenses as passive activity losses under § 469 of the Code.

Relying largely on phone records that supported the taxpayer’s claim that he spent considerable time promoting breeding to the stallion and otherwise being involved in the operation, and the records of his visits to Louisiana, the Tax Court concluded that the lawyer had met the “500 hour rule” and thus should be deemed to have materially participated in Thoroughbred activity in each of the years at issue. The deductions were therefore permitted.

479

Taxation

2013

Romanowski v. Comm’r, T.C. Memo. 2013-55 (T.C. 2013)

Former NFL player participated in the ClassicStar mare lease program. His deductions were disallowed by the IRS. As in Pederson, the Tax Court ana-lyzed the factors to determine if a profit motive existed to permit deduction under § 183 of the Code. The court concluded that most factors favored the IRS. The court particularly noted that with regard to an expectation that the assets would appreciate in value, the scheme largely involved a “circular transaction” because the foals produced from the breeding were contributed to “PowerFoal”, which was an affiliate of ClassicStar. In addition, the scheme never generated a profit.

2012

Bronson v. Comm’r, T.C. Memo. 2012-17 (T.C. 2012)

Taxpayer husband was a bankruptcy attorney and wife had a Ph.D in consumer finance. They started a Welsh pony venture, in which the wife worked full-time. Their children occasionally rode the horses. In the eleven years at issue they experienced a net loss of $837,752. The revenue in that period was insignificant, with only one horse having been “sold” to a charity for a nominal amount.

The IRS disallowed the deduction of the losses because the venture was not engaged in with a profit motive. The Tax Court affirmed. Particularly significant were the lack of any income, the failure to keep records on a per-horse basis, and the significant income of the taxpayer husband. The court upheld the penalties because the taxpayers did not have reasonable cause to make the deductions.

Twin Rivers Farm, Inc. v. Comm’r, T.C. Memo. 2012-184 (T.C. 2012)

Farm owner treated its workers as independent contractors rather than as em-ployees, and thus did not pay employment taxes. The IRS took the position that they were employees. The Tax Court agreed. All the factors used to determine employments status weighed in favor of the IRS, the court concluded. Signif-icant was the right to control the work, the furnishing of equipment, and the fact that the workers were engaged in the regular part of the business.

480


2011

Mayo v. Comm’r, 136 T.C. 81 (T.C. 2011)

Taxpayer was a provisional gambler on horse races. He attempted to deduct both wagers and expenses in excess of earnings. The Tax Court held that the restrictions of IRC § 165(d) prohibit deducting wagers in excess of gains, even where the taxpayer was a professional, but held that expenses in excess of gains could be deducted. Prior precedent to the contrary was overruled.

Van Wickler v. Comm’r, T.C. Memo. 2011-196 (T.C. 2011)

Van Wickler was an investor in the “ClassicStar” Mare-Leasing Program, marketed as a tax shelter. The entire investment was borrowed from an affil-iate of ClassicStar. The first year provided $2.6 million in deductions and net operating losses for Van Wickler due to expenses.

The IRS challenged the deductions and net operating losses, disallowing them and assessing a penalty. The Tax Court upheld the IRS’s challenge because Van Wickler was not in the business of horse breeding, thus his expenses could not be deducted under § 162. With regard to § 212 (which allows deductions for expenses for activities engaged in for production of income), the court agreed with the IRS that he could not reasonably substantiate the necessity of the ex-penses. The court reversed the IRS’s imposition of a penalty, however, holding that Van Wickler took reasonable good faith efforts to assess his tax liability.

2010

Harrah’s Bossier City Inv. Co. v. Bridges, 41 So. 3d 438 (La. 2010)

Harrah’s purchased Louisiana Downs and opened a slot machine facility. An audit by the state resulted in an assessment of sales tax owed. The Louisiana Supreme Court held that the sales tax exclusion for purchases made by race-tracks applied and was unaffected by a legislative suspension of exemptions.

2009

Dungca v. Comm’r, T.C. Summ. Op. 2009-144 (T.C. 2009)

Taxpayer was a compulsive horse race better, and amassed some $78,000 in winnings. The Tax Court held that, although his records were not perfect, he presented sufficient evidence of $65,000 in losses to deduct those losses from the winnings.

481

Taxation

Helmick v. Comm’r, T.C. Memo. 2009-220 (T.C. 2009)

Taxpayers ran a horse-breeding and boarding operation at their farm, which was also their residence. They largely boarded horses for others, and bred Arabians they purchased for that purpose. They did all the work themselves, and suffered significant losses. The husband was a county employee – a land use planner for Boulder. Although the taxpayers were considered amateurs in the horse business, had no business plan, and their intention to make a profit was “objectively unreasonable”, the Tax Court held that they engaged in the venture with a profit motive, and thus the losses were allowed to be deducted. The fact that they could not produce certain receipts was not deemed fatal, as they were lost in a contentious divorce. The court noted:

The stereotypical abusive scenario involving horse breeding is the wealthy businessman who runs a real business during the week-with business records, income projections, accountability to banks and investors, and so on-and owns a “gentleman’s farm” as a weekend retreat where he keeps horses for the recreation of himself and his family and friends. He dabbles in breeding horses, with no expec-tation of ever making a profit, so that he can deduct the expenses of his horses and thereby have Uncle Sam subsidize the weekend farm. However, some horse-related operations are actually engaged in for profit. See, e.g., Miller v. Comm’r, T.C.M. 2008-224. The Helmicks’ [taxpayers here] horse activity does not fit the stereotypical abusive scenario; instead they engaged in the horse activity with a motive to make a profit, and they are therefore entitled to deduct their losses.

Schmuecker v. Comm’r, T.C. Summ. Op. 2009-32 (T.C. 2009)

Taxpayer owned racehorses trained and raced by others. He deducted the expenses and losses against his income as a salesman. The IRS disallowed the deduction on the basis that the race horse business was a passive activity under § 469(c) of the Internal Revenue Code.

The Tax Court upheld the disallowance. It recited the seven regulatory tests, including the test of participation in the activity for more than 500 hours. Taxpayer argued that he met this test because he “would say” he spent 500 hours a year in his horse-racing business, which consisted of 250 hours surfing the web for horses to buy, and 250 hours “going to races, reading the racing form, visiting people, going to horse sales, watching live races.” That did not sway the Tax Court, which also noted that Taxpayer “did not even ride horses.”

482


2008

Boyd Racing, LLC v. Fruge, 996 So.2d 659 (La. Ct. App. 2008)

Louisiana track sued to recover sales and use tax paid to parish for slot machine equipment purchases. The court of appeal upheld the trail court’s summary judgment ruling that such purchases were not exempt from local sales and use taxes.

Miller v. Comm’r, T.C. Memo. 2008-224 (T.C. 2008)

Miller was a successful businessman, having bought a small electric pump business and grown it to a large profitable operation. He bought some Paso Fino horses, and began breeding them as a business. He lost several thousand dollars, except for one year, in this endeavor. The IRS disallowed the deductions as related to an endeavor not engaged in with a profit motive.

The Tax Court sided with Miller. It reviewed each of the nine regulatory factors, and determined that only one of the factors was against Miller – the availability of income from other sources. But the factor was outweighed by the others, which were in Miller’s favor. Significant was the fact that Miller had a business plan, although it was not in writing. Also significant was the fact that he had a top trainer, and was able to show that many losses were a result of unforeseen setbacks. The court also noted that “the startup phase of a horse breeding activity is 5 to 10 years.” Also important was Miller’s personal involvement in the activity, the court noting that “Miller participated in all aspects of the breeding activity except cleaning the stalls.”

2007

Hahn v. Comm’r, T.C. Memo. 2007-75 (T.C. 2007)

Taxpayer was assessed taxes for income as a result of forgiveness of debt. Taxpayer’s defense that he borrowed for his horse breeding business, and was thus entitled to deductions, was deemed to create a material issue of fact. However, the court determined that the allowance of deduction for prior years was not controlling as to the year in question.

Topping v. Comm’r, T.C. Memo. 2007-92 (T.C. 2007)

Taxpayer had a profitable interior design business, but also engaged in horse shows, an occupation that resulted in substantial losses. She was denied deduc-tions for the equestrian endeavors because those endeavors were not engaged in for profit. On appeal to the Tax Court, taxpayer argued that the equestrian

483

Taxation

business and the interior design business were one endeavor, which if combined showed a net profit. Her argument centered on the notion that she designed horse barns as part of her business and recruited clients from equestrian shows. The Tax Court agreed, holding:

We find petitioner’s characterization of the equestrian and design un-dertakings as a single activity for purposes of § 183 to be supported by the facts of this case. A close organizational and economic relationship exists between the equestrian and design undertakings. Petitioner’s success as an equestrian competitor creates goodwill that benefits her design business.… Petitioner formed the equestrian and design undertakings as a single integrated business. Petitioner had been a competitor for most of her adult life, and she transformed this sport experience into an avenue to establish goodwill as an interior designer of horse barns and second homes. She had a plan for an integrated equestrian-based design business. Petitioner and her assistant manage and oversee both undertakings and their assets and also use the same books and records to track both undertakings.

Further, petitioner’s equestrian activities significantly benefit her design business, and we find a significant business purpose for the combination of these undertakings. Her prominence as a competitor has gained respect among her peers and causes them to seek her out when they are in need of a designer for their horse barns and recreational homes.

Toth v. Comm’r, 128 T.C. 1 ( T.C. 2007)

Taxpayer began horse training operation for profit in 1998. The IRS challenged the deduction of her initial horse boarding and training expenses, claiming they should have been capitalized as “start up expenses” under Code § 195. The Tax Court held that that IRS misconstrued the Code, ruling that the expenses were deductible.

2006

Castagnetta v. Comm’r, 2006 WL 325833 (T.C. 2006)

Taxpayer, aside from being a truck driver, was a handicapper who, in the tax year in question, made a small profit from gambling. He spent a large amount of time in this pursuit, and kept detailed records. The IRS challenged his assertion that his handicapping was a trade or business entitling him to deduct his losses.

484


The Tax Court reviewed the non-exclusive treasury regulation factors, and found that they were either in taxpayer’s favor or were neutral, and thus sided with the taxpayer.

Murphy v. Comm’r, 2006 WL 3257400 (T.C. 2006)

Veterinarian bought three horses on credit, and deducted a final payment for the first two horses as interest, even though it was exact amount owed for the third horse. The IRS disallowed the deduction as a phony interest payment, but the Tax Court reversed on the basis that the veterinarian’s explanation was credible.

2005

Agnew v. State Bd. of Equalization, 36 Cal. Rptr. 3d 464 (Cal. Ct. App. 2005)

Another decision on the continuing saga of California’s effort to collect sales tax from the sale of shares in the DESERT WINE syndicate. Dan Agnew partially prevailed on a prior appeal and sought costs and attorney fees from the state. Agnews’ request was denied by the trial court. On appeal, the court held that a portion of the fees should be awarded to Agnew as he was the “prevailing party” under the California Code of Civil Procedure.

Corrigan v. Comm’r, T.C. Memo. 2005-119 (T.C. 2005)

Taxpayer Corrigan and Mrs. Corrigan were divorced but continued to co-habit. Mrs. Corrigan started a horse breeding operation with money from the taxpayer. The taxpayer claimed the funds were provided to Mrs. Corrigan as a business loss. The Tax Court held that they were not properly claimed as a business loss because the horse operation was a sole proprietorship of Mrs. Corrigan, and was not a joint venture.

2002

Churchill Downs Inc. v. Comm’r, 307 F.3d 423 (6th Cir. 2002)

Churchill Downs hosted a number of dinners, receptions, and cocktail parties associated with the Kentucky Derby and the Breeders Cup. Churchill Downs took full deductions for the expenses associated with these events, as “ordi-nary necessary business expenses.” The Internal Revenue Service, however, determined that they were subject to the 50% limitation in IRC § 274(n). The Tax Court agreed with the Internal Revenue Service.

485

Taxation

On appeal to the Sixth Circuit, Churchill Downs took the position that the expenses were necessary for its business. However, the Sixth Circuit drew a distinction between entertainment expenses incurred directly to solicit customers, and those that are incurred for incidental promotional purposes. Because Churchill Downs made its money through admissions and wagering, the Sixth Circuit determined that the expenses were not directly related to its income-producing activity. Nor, did Churchill Downs make money from the entertainment events themselves. Therefore, the Sixth Circuit sustained the Tax Court’s and IRS’s determination that the entertainment expenses were subject to the 50% limit.

Raceway Park, Inc. v. Ohio State Racing Comm’n, N.E.2d 1205 (Ohio Ct. App. 2002)

Raceway Park contended that its debt service should be included in its tax-abatement application for capital improvements made at its racing facility. The Racing Commission disagreed, and Raceway Park appealed. The court, though, denied Raceway Park the right to appeal the action of the Racing Commission.

Rinehart v. Yeager, T.C. Memo. 2002-9 (T.C. 2002)

Taxpayer’s Quarter Horse business, largely geared toward cutting horses, was determined by the Tax Court to be primarily engaged in for purpose of making a profit.

Routon v. Comm’r, T.C. Memo. 2002-72 (T.C. 2002)

Taxpayer was a schoolteacher engaged in breeding Arabian horses. The IRS disallowed his deductions, but the Tax Court sided with the taxpayer. The fact that taxpayer did not ride the horses for pleasure was influential.

2001

Estate of Hoffman, 8 F. App’x 262 (4th Cir. 2001)

Taxpayers owned 80% of a closely-held corporation engaged in horse breeding. Advances to the corporation were treated on the books as loans. Repayments were occasionally made without interest. The Fourth Circuit upheld the Tax Court’s determination that the taxpayer had to pay tax on the imputed inter-est. Further, the taxpayers could not take a bad-debt deduction, particularly because the taxpayers testified that the farm, though without significant assets, had great potential.

486


H.O.R.S.E. of Connecticut v. Town of Washington, 783 A.2d 993 (Conn. 2001)

H.O.R.S.E. was an organization that promoted the well-being of horses. The local taxing authorities refused to recognize it as a charitable organization so as to be exempt from property tax. On a challenge to the trial court, H.O.R.S.E. was granted summary judgment in its favor. On appeal to the Connecticut Supreme Court, the court reversed the summary judgment, and held that there were issues of fact, but did agree that an organization whose purpose is to provide care and protection to sick or otherwise distressed horses could be a tax-exempt charity.

2000

Jordan v. Comm’r, T.C. Memo. 2000-206, 80 (T.C. 2000)

Taxpayers lived on a 20-acre farm where they boarded Thoroughbred mares. The mares were bred to outside stallions for the purpose of producing racehors-es. Taxpayers, though, never made a profit in any single year. But because there was no evidence that taxpayers “had any sufficient attachment” to the horses, or used them for recreational purposes, they were deemed to have engaged in their horse business primarily to make a profit, and most of their deductions were allowed. The court ruled though, that stud fees paid on a “live foal” basis could not be deducted as an expense, but must be capitalized.

Strickland v. Comm’r, T.C. Memo. 2000-309 (T.C. 2000)

Taxpayer’s challenged the IRS’ disallowance of deductions for expenses in breeding and showing horses. The Tax Court sided with the taxpayers on the basis that they conducted their activities in a business-like manner, including having attorney-prepared leases, separate bank accounts, computer records of income and expenses. The court noted they had the expertise to make a profit.

1999

Tobin v. Comm’r, T.C. Memo. 1995-328 (T.C. 1999)

This case involved the former Kentucky State Auditor, Mary Ann Tobin. Tobin ran a horse and cattle farm, and developed part of her farm as a public display garden called Broadmore Gardens. Tobin managed the farm and the gardens. The issue was whether the farm and the gardens were one operation. The Tax Court ruled that they were, and thus the garden operation was deemed engaged in for profit.

487

Taxation

1998

Dep’t of Revenue v. Ocala Breeders’ Sales, Inc., 725 So. 2d 387 (Fla. Dist. Ct. App. 1998)

The Florida Department of Revenue attempted to charge Ocala Breeders’ Sales a use tax on its catalogs, which contain pedigree information acquired from the Jockey Club and Bloodstock Research. Although the Department could not tax intangible property, its theory was that by incorporating the information into the catalog, OBS increased the cost of its catalog by the amount paid for the information (even though, of course, it gave the catalogs away). The Florida Court of Appeals disagreed.

Kluener v. Comm’r, 154 F.3d 630 (6th Cir. 1998)

Robert Kluener, the owner of several valuable Thoroughbreds, desired to sell them at auction. To avoid an anticipated taxable gain on the sale, he transferred them to a wholly-owned corporation, APECO, that had a sizeable net operating loss. APECO had the horses auctioned, for a substantial gain. The proceeds of sale were eventually distributed to Kluener. The IRS considered Kluener to be the seller, and the Tax Court and 6th Circuit agreed, largely because no legitimate business reason underlay the transfer to APECO and APECO never used the proceeds for its purposes.

Palmer v. Bd. of Equalization, 957 P.2d 348 (Colo. Ct. App. 1998)

Issue arose whether the taxpayer’s property qualified as “agricultural” for property tax purposes. The court ruled that the grazing and boarding of pleasure horses was not “ranching” under the agricultural classification.

488


489

Theft of Horses

THEFT OF HORSES

490


491

Theft of Horses

2007

State v Burneson, 2007 WL 2269548 (Ohio Ct. App. 2007) and State v. Queen, 2007 WL 2269484 (Ohio Ct. App. 2007)

Defendants were convicted of stealing horses destined for a racehorse re-tirement farm. Conviction was modified to justify theft of property valued at over $5,000.

492


493

Ticket Scalping

TICKET SCALPING

494


495

Ticket Scalping

2007

Churchill Downs Inc. v. Dearen, 2007 WL 1308355 (W.D. Ky. 2007)

Churchill Downs sought to enforce, by a contempt proceeding, a consent de-cree prohibiting scalping site from scalping Derby tickets, arguing that using “Churchill Downs” and “Kentucky Derby” was prohibited by the decree. The court found that the decree was ambiguous on this point, and because Churchill had not complained for several years of such use showed that it agreed that such use did not violate the consent decree.

496


497

Trainers

TRAINERS

498


499

Trainers

2012

Sepulski v. McGowan, 2012 WL 424983 (Ky. Ct. App. 2012)

Sepulski boarded his Thoroughbred horses with trainer McGowan, who was to train them at his farm. Sepulski never paid, so McGowan sued. Sepulski counterclaimed asserting McGowan failed to properly care for and train the horses. Based on affidavits, the court granted summary judgment to McGowan. The court of appeals reversed, holding that the complaint of Sepulski created an issue of fact.

2010

Reinhart v. Rising Star Ranch, LLC, 2010 WL 3219497 (Tenn. Ct. App. 2010)

Horses were delivered to trainer for training for preparation for sale. Owner was not satisfied with the training and refused to pay the bill. The trainer sued, and the owner counterclaimed. After a trial, the court ruled that the owner had not proven that the trainer breached the contract to train, despite evidence of the poor condition of the horses. The decision was upheld on appeal as supported by sufficient evidence.

Welk v. Simpkins, 2010 WL 4560015 (5th Cir. 2010)

Horse owner sued trainer for improperly handling a horse that was lame, al-leging breach of contract, negligence, fraud, and breach of fiduciary duty. The trainer was granted summary judgment based on the expiration of the statute of limitations. The court of appeals affirmed. The court rejected the argument that the trainer had a duty to disclose because of his fiduciary duty to the owner, the court holding that the relationship, despite its length and subjective trust, was a business relationship that did not give rise to a fiduciary duty.

500


501

Veterinarians

VETERINARIANS

502


503

Veterinarians

2017

Young v. Cincinnati Equine, LLC, 2017 WL 2153918 (E.D. Ky. 2017)

Ohio veterinarian sued horseowner, a Florida resident, in Ohio state court to collect a $2,000 fee for treating horses located at Turfway. He obtained a judgment and began collection proceedings, including filing a financial respon-sibility complaint with the Ohio State Racing Commission. The horseowner appealed on jurisdictional grounds, and the Ohio Court of Appeals reversed and remanded for the trial court to hold a hearing on jurisdiction.

To up the ante on this $2,000 dispute, the horseowner sued the veterinarian in federal court in Ohio, alleging malicious prosecution and some other things. The veterinarian moved to dismiss the malicious prosecution claim. The motion was granted, because there was no finding by the Ohio appellate court on the issue of jurisdiction, merely a remand to determine jurisdiction.

2016

Elvin v. Gubert, 2016 WL 4203512 (Mich. Ct. App. 2016)

Plaintiff’s unraced Standardbred died allegedly as a result of veterinary mal-practice. At trial the plaintiff’s expert valued the unraced horse at $100,000 based on “comparables” of proven horses. The defendant’s expert valued the horse at $500 as “salvage.” The jury awarded $80,000. Attorney fees of almost $120,000 were awarded because of an evaluation sanction. The defendant moved for remittitur, based on the speculative nature of the damages, which was denied.

The Michigan Court of Appeals upheld the damages, stating that the plain-tiff’s expert’s valuation was based on the horse’s pedigree, training, physique, and Pennsylvania’s state-sponsored horse racing industry, rather than “lost earnings.” The attorney fees were upheld as reasonable because a veterinary malpractice case is comparable to a medical malpractice case, and the rates and time were within bounds of such a case.

Lococo v. Kentucky Horse Racing Comm’n, 2016 WL 446668 (Ky. Ct. App. 2016)

Veterinarian sought names and addresses of licensed owners from the Racing Commission. After being denied he sued under the Open Records Act. The trial court held that the personal privacy exception applied because he was seeking to collect debts from those owners, not to serve the public good. He appealed, but died during the pendency. The court of appeals dismissed the appeal on the basis that the claim did not survive the veterinarian’s death.

504


2013

Henry v. Zurich American Ins. Co., 107 So. 3d 874 (La. Ct. App. 2013)

Racehorse owners had a deal with trainer that trainer would cover training expenses and owner and trainer would split earnings. The racehorse suffered from a breathing condition and the trainer brought it to the veterinary clinic for surgery. Unfortunately the horse died during the surgery in a reaction to the anesthesia. The owner sued the veterinary clinic claiming that it did not have permission to perform the surgery. After a trial, the court ruled against the owner. The court of appeals affirmed on the basis that there was sufficient evidence to find that the clinic was reasonable in believing the trainer owned the horse and taking instructions from the trainer.

Quigley v. McClellan, 2013 WL 941574 (Cal. Ct. App. 2013)

Purchaser of two horses sued veterinarian for negligence in conducting pre-purchase examinations. The claim resulted in a jury verdict in favor of the purchaser as to one of the two horses. The court of appeals reversed the verdict and judgment, because the expert witness for the purchaser testified about how he perceived the mistakes to have been made, rather than how they vary from the standard of care for veterinarians.

Stewart v. Kentucky Horse Racing Comm’n, 2013 WL 1003534 (Ky. Ct. App. 2013)

A search of a trainer’s barn uncovered a vial of cobra venom, a prohibited substance under Kentucky’s Thoroughbred racing regulations. The veterinarian admitted that the vial belonged to him. A search of the veterinarian’s vehicle revealed vials of carbidopa and levodopa. The veterinarian was suspended by the stewards for four years for the cobra venom, and one year for the carbidopa and levodopa because they were substances that could endanger the welfare of a horse. After an evidentiary hearing, the Racing Commission affirmed the suspension.

The veterinarian sought review in court. The circuit court reversed the one-year suspension for levodopa and carbidopa, but affirmed as to the four-year suspension for the cobra venom.

The veterinarian and Racing Commission appealed. The Racing Commission sought to dismiss the appeal based on the failure to notify the attorney general of a constitutional challenge, as required by statute. The court rejected that challenge because effective notice to the attorney general had been given.

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Veterinarians

The veterinarian challenged the suspension for cobra venom on the basis that the regulation was unconstitutionally void for vagueness as applied to him. Because snake venom was a permitted under the Standardbred regulations in effect at the time, the court of appeals agreed that the Thoroughbred regulation prohibiting it was void for vagueness and resulted in arbitrary enforcement.

The court then upheld the circuit court’s reversal of the suspension for the levodopa and carbidopa as not based on substantial evidence that the substances could endanger the welfare of a horse.

2012

Baechler v. Beaunaux, 272 P.3d 277 (Wash. Ct. App. 2012)

Veterinarian advised horse owner to euthanize horse suffering from spasmodic colic. Owner did so but sued veterinarian for malpractice. Veterinarian filed a motion for summary judgment. Owner responded with an affidavit from an-other veterinarian as to how she would have treated the horse. The trial court granted summary judgment. That decision was affirmed on appeal. The court emphasized that proof of violation of a standard of care required expert opinion, but here that opinion fell short because it did not state that the veterinarian’s treatment violated the standard of care.



Drazin v. Chavones, 2012 WL 4510738 (E.D. Pa. 2012)

Veterinarian examined Thoroughbred and after an endoscopic examination, advised the owner and consignor that the horse had a defect and would be ineligible for a two-year-old-in-training sale. He then advised the owner to sell the horse at whatever price he could get, and arranged a sale to his girlfriend for $25,000. Later, she sold the horse for $250,000. The prior owner sued for fraud and veterinary malpractice. The veterinarian moved to dismiss. The court held, however, that these facts were specific enough to sustain a claim

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for fraud. The basis for the motion with respect to malpractice is the failure to provide a certification required by Pennsylvania law, but the court permitted the plaintiff to submit an excuse for not obtaining that certification.

2011

Simpson v. Baronne Veterinary Clinic, 803 F. Supp. 2d 602 (S.D. Tex 2011)

Veterinary clinic was sued for malpractice after racehorse it treated for partial lameness developed infections allegedly as a result of the treatment, rendering the horse incapable of ever racing. The defendant moved for summary judg-ment. The court denied the motion as it pertained to the negligence claim, as the plaintiff had presented a report from a qualified expert in the field. The court granted the motion as to the claim of gross negligence, as no evidence was presented that the clinic was consciously indifferent to the rights of others. The court also granted summary judgment the portion of the damages claim seeking lost potential profits, as “Texas law does not allow an injured animal’s owner to recover the animal’s lost potential profits.”

2009

Brown v. New York Racing and Wagering Bd., 871 N.Y.S.2d 623 (N.Y. App. Div. 2009)

Equine dentist brought suit to challenge the New York Racing and Wagering Board’s order that he cease practicing equine dentistry without a veterinary license. The court held that the practice of equine dentistry was not the practice of veterinary medicine as the term is used in the licensing statute, despite the agency’s interpretation to the contrary.

Cady v. Tennessee Bd. of Veterinary Medical Examiners, 2009 WL 2707398 (Tenn. Ct. App. 2009)

Veterinary board rule that restricted artificial insemination and pregnancy testing to licensed veterinarians was deemed invalid as overly broad under the state statute licensing veterinarians.

Danvers v. Bilach, 2009 WL 5084947 (N.J. Sup. Ct. App. Div. 2009)

Veterinarian sued owner of horse for work performed at the request of the owner’s trainer. A bench trial resulted in a judgment for the owner because no contract existed between the owner and the veterinarian. The appeals court

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Veterinarians

reversed, holding that the veterinarian could proceed against the owner on a theory of quantum meruit.

MacLean v. McCarroll, 2009 WL 1813971 (E.D. Tex. 2009), and 2009 WL 1940105

Purchaser sued veterinarian for conducting a negligent pre-purchase exam when the horse he bought turned up lame. The veterinarian moved to dismiss based on res judicata, arguing that a decision of the Texas Board of Veterinary Medicine absolving him of misconduct was binding. The court disagreed be-cause the determination of the court was not based on a procedure analogous to a judicial process.

The defendant also claimed that there were no damages as a matter of law. The court rejected this argument because the plaintiff would be entitled to the difference between the value of the horse as represented and the value of the horse as received. However, the court did grant summary judgment on the claim for damages based on loss of the horse’s breeding potential, holding that “dam-ages based on breeding potential are speculative and may not be recovered.”

Following that, the plaintiff attempted to amend the complaint based on fraud, because he determined that the veterinarian had a relationship with the ranch from whom the plaintiff purchased the horse. The motion was denied as untimely.

Ramsey v. Lambert, 2009 WL 2408413 (Ky. Ct. App. 2009)

Under an oral arrangement, horse owner engaged advisor to advise on purchas-ing horses. The advisor used heart-scanning as part of his analysis. One horse advised to be purchased, ROSES IN MAY, had significant winnings, and was sold for $8 million. The owner did not pay the advisor, who sued. The owner counterclaimed alleging that the heart scanning was the practice of veterinary medicine, and thus voided the contract. A jury rendered a verdict for the ad-visor, and the trial court awarded a sum on the counterclaim for payments for illegal veterinary practice.

On appeal, the court held that the heart scanning was not a veterinary practice, as it did not lead to diagnosis and treatment. It ruled that even if had been a veterinary practice, the oral contract would nevertheless not be void. Other challenges were made to the verdict against the owner, but the court upheld the verdict.

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Reed v. Vickery, 2009 WL 3276648 (S.D. Ohio 2009)

Reed agreed to purchase a show horse from Vickery, subject to a pre-purchase vet exam. The vet exam, conducted by Dr. Rothaug, of Woodland Run Equine Veterinary Facility, resulted in a report that there were no problems with the horse. However, another veterinarian with Woodland Equine, Dr. Stingle, had previously treated the horse for lameness. After purchasing the horse, Reed determined that the horse had chronic lameness and could not compete. She sued the seller and Dr. Rothaug, Dr. Stingle, and Woodland Run.

The veterinary defendants brought a motion to dismiss. They first asserted that the claims were time-barred under the 2-year statute of limitations for veterinary malpractice claims. The court rejected this argument, holding that the discovery rule applied, and the claim here was for failure to reveal the Stingle treatment, which was not discovered until a later date.

Woodland Run further argued that it was not, as an entity, a licensed veteri-narian, thus cannot be sued for veterinary malpractice. The court rejected this argument on the basis that the claim was not for malpractice, but for misrep-resentation, and was therefore “not veterinary in nature.” Dr. Stingle’s motion for summary judgment was granted, however, because there was no allegation that he intended to deceive. Negligent representation could not be based on an omission, the court held. The court also rejected the claim that fraud was not alleged with particularity.

2008

Hoffa v. Bimes, 954 A.2d 1241 (Pa. Super. 2008)

Horse owner brought horse suffering from colic to clinic. After a quick evalu-ation, as emergency abdominal tap was performed. Unfortunately, the needle pierced the horse’s small intestine, resulting in an infection that eventually resulted in the death of the horse. The horse owner sued the veterinarian for negligence and failure to obtain consent for the procedure.

Summary judgment was granted and affirmed on the basis of an Illinois statute that immunizes veterinarians from liability when providing “emergency care.” Although the term was undefined, the court concluded it was applicable to the abdominal tap.

Loman v. Freeman, 890 N.E.2d 446 (III. 2008)

Defendant veterinarian was a faculty member of the University of Illinois College of Veterinary Medicine. Plaintiff alleged the veterinarian performed un-authorized surgery, rendering the horse ruined for future racing. The trial court

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Veterinarians

granted the veterinarian’s motion to dismiss. The court of appeals reversed, which reversal was upheld by the Illinois Supreme Court. The court held that the doctrine of sovereign immunity did not apply, even though the veterinarian was an employee of the state. Merely because the employee was acting within the course of his employment does not make the claim one against the state. The veterinarian’s duty to plaintiff did not arise from his employment with the state, but was based on his common law duty of care. He was not performing a uniquely governmental function. The fact that if found liable the veterinarian would be indemnified by the state did not invoke sovereign immunity.

The court also rejected the argument that because professors of veterinary med-icine were exempt from state licensing laws, they were immune from liability.

The court also agreed with the court of appeal’s reversal of the dismissal of the conversion claim. It held that the complaint did state a cause of action for conversion.

Mitz v. Texas State Bd. of Veterinary Medical Examiners, 2008 WL 4899182 (Tex. App. 2008)

Veterinary licensing board sent cease and desist letters to equine dentists, assert-ing that they were engaged in the unlicensed practice of veterinary medicine. The veterinarians and some of their clients sued to have the action declared unconstitutional. The trial court held that the veterinarians first had to exhaust their administrative remedies. The Texas Court of Appeals reversed, holding that they did not have to exhaust their administrative remedies and that they had standing to challenge the action.

2007

de Mercado v. Superior Court, 55 Cal. Rptr. 3d 889 (Cal. Ct. App. 2007)

Purchaser of horse sued veterinarian for faulty inspection of the horse that was purchased. The veterinarian sought dismissal of the complaint, and striking the punitive damage claim, based on the California Medical Injury Compensation Reform Act, which is applicable to veterinarians. However, the court held that the Act did not apply because no “personal injury” was involved.

Phillips v. Baus, 2007 WL 1976219 (Conn. Super. Ct. 2007)

Veterinarians sued when administration of betamethasone resulted in loss of all value of horse. Veterinarians motion for summary judgment on claim for

510


violation of the Consumer Protection Statute was granted, the court holding that the claim was more properly governed by the law of professional negligence.

2006

McGuire v. Hoblock, 25 A.D.3d 500 (N.Y. App. Div. 2006)

Veterinarian was suspended for 180 days and fined $1,000 for attempting to “milkshake” a horse on the day of a race. The Appellate Division upheld the sanctions as not a shock to its sense of fairness.

VanHorn v. Oelschlager, 457 F.3d 844 (8th Cir. 2006)

Veterinarians were charged with race-day medication violations. The Racing Commission’s determination of violations was overturned on appeal. However, their applications for licenses were held up, and they sued the Commission members for violating their due process rights. The Commission moved for summary judgment on the basis of quasi-judicial immunity. The motion was denied, but the court of appeals reversed the denial, holding that the Commis-sion members were entitled to qualified immunity.

2005

Brunk v. Nebraska State Racing Comm’n, 700 N.W.2d 594 (Neb. 2005)

Two veterinarians were charged with various offenses when racehorsess tested positive for clonidine. Nebraska regulations prohibited the administration of clonidine on race day. The Commission determined that the rule was violated, and that the veterinarians had committed the offense of failure to cooperate with a Commission investigation, and failure to comply with drug-handling and reporting rules.

A de novo review by the district court followed. There, evidence was presented by Dr. Sams of Ohio State and Dr. Barker of LSU as to the withdrawal times (or lack of knowledge thereof) of clonidine. Therefore, the court held that it was not shown that clonidine was administered on race day. This decision was upheld on appeal. The court further held that veterinarians, unlike trainers, were not responsible under the strict liability of the Trainer Responsibility rule. The appeals court determined, however, that the veterinarians violated the drug handling and reporting rules, and failed to cooperate with an investigation (reversing the trial court on this point).

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Veterinarians

Kernan v. Ocala Equine Hospital, 2005 WL 1172425 (M.D. Fla. 2005)

Equine hospital attempted to recover attorney fees and costs against plaintiff after successfully defending a malpractice suit. The claim for attorney fees was based on a consent form signed by the plaintiff prior to the surgery on the horse that provided that in the event of a collection of an account, the owner of the horse would be liable for attorney fees. The court denied the request because the defendant did not specify which fees were for collection as opposed to defense of the malpractice claim. The court also denied costs because the defendant failed to file the proper affidavit.

Mazella v. Fairfield Equine Assocs., P.C., 2005 WL 2452908 (S.D.N.Y. 2005)

Veterinarian was called to treat a horse named MELVIN after the owner ob-served that the horse was moody and stumbling. The veterinarian made no diagnosis but recommended the use of a magnetic blanket. When MELVIN’s condition deteriorated, the veterinarian was called back to examine MELVIN. This time, the veterinarian drew a blood sample for Lyme disease, but advised the owner that MELVIN could be ridden. However, when the owner mounted the horse the next day, MELVIN collapsed and severely injured the owner.

The owner sued the veterinarian for malpractice, claiming he should have tested for EPM. The veterinarian moved to dismiss on the basis that there was no negligence, that no duty to warn the owner, an experienced horsewoman,and that the collapse was an inherent risk of riding thus qualifying for immunity under the Connecticut Equine Immunity Statute.

The court held that there was a triable issue of fact as to negligence, and that the superior knowledge of the veterinarian created a duty despite the experience of the owner. The court further held that the risk the owner assumed was the risk of an injury from a healthy horse.

2004

Petrosian v. Conner, 2004 WL 837997 (Cal. Ct. App. 2004)

Petrosian filed a veterinary malpractice suit against his veterinarian after an infection following cortisone injections rendered the horse permanently lame. Petrosian did not designate an expert, and tried to prove a standard of care and its breach by examination of the veterinarian. He also proffered testimony of a trainer to prove his case. At the end of his proof, the court dismissed plain-tiff’s case. The dismissal was upheld on appeal because the testimony of the veterinarian did not establish a breach of the standard of care, and a trainer was not competent to testify as to the standard of veterinary care.

512


2003

Haverstock v. Hoge, 2003 WL 1788787 (Cal Ct. App. 2003)

Horse owner sued veterinarians for administering a vaccine which allegedly caused injury to the horses. The court ruled that California’s malpractice stat-ute applied and that its discovery rule pre-empted the common-law discovery rule. The limitations period had clearly expired by the time suit was brought.

Sachs v. New York State Racing and Wagering Bd., 1 A.D.3d 768 (N.Y. App. Div 2003)

Commission revoked veterinarian’s license for administering prohibited sub-stances to harness horses. The veterinarian challenged the ruling on the basis that the Hearing Officer was biased because he was a former investigator for the Commission. This challenge was rejected. The veterinarian also challenged the ability of the commission to amend the charge against the veterinarian slightly. This challenge was also rejected because the veterinarian had fair notice of the charges.

2002

Brumfield v. Richardson, 2002 WL 234768 (Cal. Ct. App. 2002)

Horse owner sued veterinarian for allegedly botched repair of scrotal hernia. Horse owner asserted causes of action for malpractice, breach of contract, and fraud. The trial court refused to instruct the jury on breach of contract and fraud, and the jury returned a verdict for the veterinarian on the malpractice claim. The appeals court held that the failure to give an instruction on breach of con-tract was harmless error, as the claim was subsumed in the malpractice claim. However, the court of appeals reversed for failure to give a fraud instruction. The fraud claim was based on the veterinarian’s alleged representation that he had performed the procedure on many horses.

Fackler v. Genetzky, 638 N.W.2d 521 (Neb. 2002)

Dr. Genetzky, a track veterinarian, was sued by horse owners for veterinary malpractice following the death of two horses due to infection. The owners claimed that the infection was a result of unsterile procedures used during injections made by Dr. Genetzky. However, because the deviation from the standard of care, and causation, was based only on supposition, summary judgment in favor of Dr. Genetzky was upheld.

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Veterinarians

2001

Chovanes v. Thoroughbred Racing Ass’n, 2001 WL 43780 (E.D. Pa. 2001)

Veterinarian sued TRA and another veterinarian for allegedly disparaging him in several ways. The veterinarian’s claims under RICO and the Lanham Act were dismissed on several grounds. As for the Lanham Act claim, the court held that communications by TRA were not disseminated by plaintiff’s commercial competitors and were not sufficiently disseminated to the public.

Hamilton v. Thompson, 23 P.3d 114 (Colo. 2001)

Veterinarian sued for unpaid veterinary fees in small claims court. The defen-dant counterclaimed for malpractice, allegedly a false pregnancy diagnosis. After a trial, the court entered judgment for the defendant on the counterclaim. On appeal, the court held that the defendant did not produce evidence of the standard of care, and thus should not have been awarded a judgment. The rules of substantive law apply in small claims cases, the court noted.

Kenny v. Lesser, 281 A.D.2d. 853 (N.Y. App. Div. 2001)

Plaintiff’s three-year-old Thoroughbred underwent surgery at the Equine Clinic at Oakencroft, to remove a chip fracture in his fetlock. As a result of the anesthesia, the horse died. Plaintiff sued, claiming veterinary malpractice.

At trial, plaintiff presented a veterinarian from Tufts University, who opined that the dose of one of the medications given was too high, and that the moni-toring was insufficient. The jury verdict was for the plaintiff, awarding plaintiff $100,000 for the value of the horse.

On appeal, defendants challenged the qualifications of the expert on the basis he was an “academic” and not qualified to render an opinion as to clinical practice. The court rejected that argument, and upheld the verdict.

Smith v. Veterinary Medical Examining Bd., 27 P.3d 1081 (Or. Ct. App. 2001)

Veterinarian had her license suspended for injecting vitamin E and selenium in a horse without having epinephrine available for treatment of possible ad-verse reactions, and for charging for blood work which was never completed. The licensing board based its decision partially on a letter from a witness sent to the hearing officer. The Oregon Court of Appeals held that consideration

514


of the letter was improper, as the veterinarian had no opportunity to rebut it with evidence.

2000

Jahn v. Equine Services, 233 F.3d 382 (6th Cir. 2000)

Following surgery for palate displacement, Jahn’s Hackney pony died while unattended in his stall at the surgery center. John sued the veterinarians who performed the surgery. John relied on two veterinary experts, both whom testified in their depositions that it appeared from the medical records that the pony had been given an overdose of preoperative medications and received insufficient post-operative care. The latter criticism was largely a result of the lack of records.

The district court granted summary judgment on the basis that the testimony of both veterinarians was excluded under Daubert because it was speculative, particularly as they could not determine the cause of death. The court also criticized the qualifications of one vet because he was an academic who had never performed the type of surgery involved. The court of appeals held that the district court took far too strict an approach to Daubert, and should have at least held a Daubert hearing.

1999

Carinda v. State, 734 So. 2d 514 (Fla. Ct. App. 1999)

Veterinarian was convicted of using drugs (“milkshaking”) in a racehorse. The court held that the excuse that he used the drugs to ease the pain experienced by the horse, rather than enhancing performance, was no defense.

Hiawassee Stables, Inc. v. Cunningham, 519 S.E.2d 317 (N.C. Ct. App. 1999)

Stallion buyer sued a North Carolina veterinarian in Florida for negligent analysis of the stallion’s semen. Despite an internet presence (which, the court noted “are, by nature, passive”), there were insufficient minimum contacts to justify jurisdiction over the veterinarian.

Williamson v. Prida, 89 Cal. Rptr. 2d 868 (Cal. Ct. App. 1999)

Owners of a racehorse that developed thrombosis after receiving oxytetra-cycline injections sued veterinarians for malpractice. The oxytetracycline

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Veterinarians

was injected after the horse showed several scratches. The owners’ claim for emotional distress was dismissed. The jury, though, found the veterinarians negligent and awarded damages for loss of the horse in the amount of $600,000. On appeal, the California Court of Appeals stated that the medical malpractice rule of proof of a standard of care usual in the profession must be shown, and by expert testimony, applied also to veterinarian malpractice cases. After the court thoroughly reviewed the evidence, it concluded that such standard of care had not been proven. The testimony by plaintiff’s expert that “he didn’t agree with” the use of oxytetracycline for non-infected scratches, and “couldn’t see the reason” for its use, was not sufficient to establish a standard of care. It therefore reversed the judgment of the trial court.

1998

Dep’t of Consumer and Industry Services v. Hoffman, 583 N.W.2d 260 (Mich Ct. App. 1998)

A licensed chiropractor was ordered to cease spinal manipulation of horses because he was not a licensed veterinarian. The Michigan Court of Appeals held that the chiropractor was properly enjoined, because “there is nothing in the Public Health Code indicating that the practice of chiropractic includes animals other than humans.”

Pruitt v. Box, 984 S.W.2d 709 (Tex. App. 1998)

This is a veterinary malpractice case where it was alleged that the horse died as a result of a reaction to anesthesia during a hoof-repair operation. The trial court awarded summary judgment in favor of the veterinarians, based on the affidavits submitted. The court of appeals reversed, stating that the affidavit submitted by the plaintiffs (which stated that the delay in the operation caused by the veterinarian’s unfamiliarity with the procedure “increased the chance of death”) sufficiently injected “at least some evidence of causation” sufficient to overcome summary judgment.

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Wild Horses

WILD HORSES

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Wild Horses

2017

American Wild Horse Preservation Campaign v. Perdue, 2017 WL 4385259 (D.C. Cir. 2017)

Interest group challenged the Forest Service’s revamping of territorial lines used to manage herds of wild horses. The revamping failed to take into account prior mistakes in designating territory. The court remanded to the district court to direct the Forest Service to correct its errors.

American Wild Horse Preservation Campaign v. Zinke, 2017 WL 4349012 (D. Idaho 2017)

The Bureau of Land Management’s wild horse sterilization program was chal-lenged by interest group on the basis that the environmental impact statement was deficient. The court partially agreed and remanded the matter back to the BLM to make further considerations in the impact statement.

Friends of Animals v. U.S. Bureau of Land Mgmt., 2017 WL 1025669 (D. Or. 2017)

Friends of Animals sued to stop a planned gather to remove excess wild horses from BLM land in Oregon. The court refused to dismiss the complaint as moot and allowed Friends of Animals to conduct limited discovery.

Front Range Equine Rescue v. Bureau of Land Mgmt., 2017 WL 5885314 (D. Colo. 2017)

Wild horse protection group sought review of a decision by the BLM to relo-cate a herd of wild horses. The court held that the matter was moot, and the “capable-of-repetition-yet-evading-review doctrine” did not apply, and thus dismissed the suit for lack of subject matter jurisdiction.

2015

Wild Horse Observers Ass’n v. New Mexico Livestock Bd., 636 P.3d 1222 (N.M. Ct. App. 2015)

Public interest group sued to have the New Mexico Livestock Board test and relocate wild horses, rather than treat them as unowned “livestock.” The trial court dismissed the action but the court of appeals reversed, holing that

520


the horses were not “livestock’ and the board had statutory duty to test and relocate the wild horses.

2014

In Defense of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054 (9th Cir. 2014)

Non-profit organizations sued the Bureau of Land Management to prevent a roundup of wild horses and burros. The district court denied the claim. On appeal, the Ninth Circuit ruled that the BLM had not acted arbitrarily and capriciously in in implementing the plan to roundup the horses.

Leigh v. Jewell, 2014 WL 31675 (D. Nev. 2014)

In a Fourth Amended Complaint, plaintiff alleged that the BLM did not conduct a wild horse roundup “humanely” as required by statute. The court granted the government’s motion for judgment on the pleadings because it was not a challenge to final agency action under the APA, and thus the court lacked subject matter jurisdiction.

2013

Cloud Foundation, Inc. v. Salazar, 738 F. Supp. 2d 35 (D.D.C. 2010), 738 F. Supp. 2d 42 (D.D.C. 2010), 999 F. Supp. 2d 117 (D.D.C. 2013)

Environmental groups sued BLM to stop scheduled round-up of wild horses. After an injunction was denied, the government moved to dismiss the complaint as moot. The court denied the motion, determining that not all claims were moot because the group challenged “an ongoing policy.”

In the second decision, the court denied the government’s motion to reconsider, and motion to dismiss on other grounds.

A second amended complaint was filed, challenging the BLM’s decision not to expand the wild horse range. The parties filed cross-motions for summary judgment. The court granted the government’s motion for summary judgment, and denied the plaintiff’s motion, based on the fact that the decision was not a final agency action.

Koleriter v. Jewell, 2013 WL 5718963 (D. Nev. 2013)

TRO sought by plaintiffs to force the U.S. Fish and Wildlife Service to grant access to a round-up of feral horses was denied. The court held that there was

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Wild Horses

not a likelihood of success on the merits. The fact that some volunteers had access was not a sufficient showing of a violation of rights in denying the general public access.

Leigh v. Salazar, 2013 WL 4548235 (D. Nev. 2013)

Leigh sought a preliminary injunction against a BLM roundup of horses. The court denied the injunction based on the insufficiency of evidence of irreparable harm, as the evidence of inhumane treatment of horses in prior roundups was minimal.

Rock Springs Grazing Ass’n v. Salazar, 935 F. Supp. 2d 1179 (D. Wyo. 2013)

Grazing association sought to compel the BLM to remove wild horses that strayed onto grazing land. A wild horse preservation group intervened. The interveners objected to a consent decree between the BLM and the association. The court, however, approved the consent decree.

2012

Colorado Wild Horse and Burro Coalition, Inc. v. Salazar, 890 F. Supp. 2d 99 (D.D.C. 2012)

Wild horse group sued the Bureau of Land Management to challenge the decision to remove a herd of wild horse from Colorado. The court dismissed the case because the decision as still subject to further assessment, and thus was not ripe for judicial review.

Stout v. U.S. Forest Service, 869 F. Supp. 2d 1271 (D. Or. 2012)

Ranch owners sued the Forest Service to enjoin certain standards to maintain 100-head wild horse herds in the 2007 Wild Horse Plan. The court overruled cross-motions for summary judgment because disputes concerning the Plan could not be resolved without a trial.

522


2011

American Wild Horse Preservation Campaign v. Salazar, 800 F. Supp. 2d 270 (D.D.C. 2011)

Groups opposed to wild horse roundup sued to stop roundup by BLM. The court dismissed the action as moot because the roundup had occurred.

The Cloud Foundation v. U.S. Bureau of Land Mgmt., 802 F. Supp. 2d 1192 (D. Nev. 2011)

Nonprofit organization sought preliminary injunction to prohibit wild horse roundup. The injunction was denied on the basis that the organization could not show a likelihood of success on the merits, and it did not establish irrep-arable harm.

Habitat for Horses v. Salazar, 2011 WL 4343306 (S.D.N.Y. 2011)

Animal rights groups sued to stop removal of horses by the BLM. The gov-ernment moved to dismiss on mootness grounds, and for summary judgment. The motions were granted.

2010

In Defense of Animals v. Salazar, 713 F. Supp. 2d 20 (D.D.C. 2010)

Horse welfare group sued the Bureau of Land Management to stop the imple-mentation of a wild horse removal plan. The court dismissed the complaint as moot as the removal had already occurred.

2008

Colorado Wild Horse and Burro Coalition v. Kempthorne, 571 F. Supp. 2d 71 (D.C.C. 2008)

Citizens group challenged decision of the BLM to remove wild horses from herd management area, seeking certain agency records. The court denied access to the records as protected by the deliberative process privilege.

523

Wild Horses

2006

Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13 (D.C. Cir. 2006)

In an effort to deal with the population explosion of wild horses on BLM land, the BLM prepared a restoration strategy. The district court granted judgment for the government, which was upheld on the basis that the agency action was not “final” and reviewable.

524


525

Workers’ Compensation

WORKERS’ COMPENSATION

526


527


2016

Hanawalt v. Brown, 2016 WL 1068395 (Ky. 2016)

Wild Rose Equestrian Center provided horseback riding, horse training, and horse boarding services. It employed Hanawalt for various tasks, including mucking stalls, grooming horses, training horses, and fixing fences. Hanawalt was injured while riding one of the horses. She made a claim for workers’ compensation benefits.

The ALJ determined that she was not covered by workers’ compensation because Kentucky’s agricultural exemption applies. The determination was affirmed by the Kentucky Supreme Court, which rejected her claim that Wild Rose was an entertainment venue rather than an agricultural business.

2014

Munoz v. Industrial Comm’n, 318 P.3d 439 (Az. Ct. App. 2014)

Workers’ compensation claimant sought to have income earned from horse training and rehabilitation included in average monthly income. The court up-held the ALJ’s denial, holding that her income was from independent contractor status with the horse owners. Most significant was the fact that the owners did not have any right to control the manner in which she trained.

2013

Einhorn v. Johnson, 996 N.E.2d 823 (Ind. Ct. App. 2013)

While young rider was riding in a practice ring at the state fair, the horse she was riding became spooked as a result of truck back-up alarm. When the horse was being stalled, the agitated horse got free, ran through the barn and trampled John Einhorn, a fair volunteer. He was severely injured and the fair’s workers’ compensation paid the medical bills.

Einhorn sued the fair and the family of the rider of the agitated horse. The fair moved to dismiss for lack of jurisdiction because of the workers’ compensation immunity. The court denied the motion because acceptance of workers’ com-pensation benefits, which Einhorn had not applied for, did not mean he was an employee under the act. The court, however, granted summary judgment to the fair on the basis of the equine immunity statute. The court of appeals affirmed on the basis running uncontrollably was an inherent risk of equine activity.

The trial court had also granted summary judgment to the family of the young rider. The court of appeals affirmed. It held that for liability for negligence to

528


be imposed, there must be a showing of a known dangerous propensity. The horse’s agitated behavior before the accident “is not evidence of a dangerous propensity as a matter of law.”

2012

County of Riverside v. The Workers’ Compensation Appeals Bd., 2012 WL 6217634 (Cal. Ct. App. 2012)

Member of a “posse comitatus” group that assisted the local sheriff was injured during training. The Workers’ Compensation Board held she was a covered employee. The court reversed, holding that members of such volunteer groups are not covered employees.

Gaines Gentry Thoroughbreds v. Mandujano, 366 S.W.3d 456 (Ky. 2012)

While returning to Kentucky from horse sales in Saratoga, New York, employee of horse farm was injured in an automobile wreck. He sought workers’ com-pensation coverage. The ALJ held that the activity was work-related. Despite there being no requirement as to how the employee returned, the Kentucky Supreme Court upheld the decision of the ALJ.

2011

Arizona Horsemen’s Ass’n v. The Industrial Comm’n of Arizona, 2011 WL 2176192 (Az. Ct. App. 2011)

Trainer hired groom at a track, and the following day the groom was injured when a horse kicked her. The trainer did not have workers’ compensation insurance, and her claim for workers’ compensation was denied. She claimed that an implied contract of employment existed with the Arizona Horsemen’s Association (“AHA”) which provided services to its members, including the trainer in this case. But the trainer had not enrolled the groom in the coverage program. Therefore, her claim of coverage under the AHA’s workers’ com-pensation insurance was denied. The court affirmed, holding that there was no express or implied contract of employment between the groom and the AHA.

Gogel v. Hancock, 2011 WL 6757421 (Ky. Ct. App. 2011)

Gogel was an exercise rider who was injured while riding for a trainer, and sought workers’ compensation. After a hearing, the ALJ ruled that Gogel was an independent contractor, not an employee, and thus workers’ compensation

529


was denied. The Workers’ Compensation Board and the Kentucky Court of Appeals affirmed. Important to the determination was the fact that Gogel was considered a skilled professional, had discretion in performing his duties, and listed his compensation as business income on his tax returns.

Parish v. Highland Park Baptist Church, 2011 WL 4928739 (Tenn. Workers’ Comp. Panel 2011)

Business manager of a church was injured when he was thrown from a horse. The horse was at a camp run by the church. He claimed that he was testing the horses for the camp, and therefore the injury was in the course of his em-ployment. The court upheld the Workers’ Compensation Board’s determination that his injury was not in the course of employment, as his job did not include being a director of the camp nor was he asked to ride the horses at the camp; his riding was a personal mission.

2010

Rocky River Farms, Inc. v. Porter, 925 N.E.2d 496 (Ind. Ct. App. 2010)

Employee of equestrian facility who trained riding horses was injured when a horse fell on her, and applied for workers’ compensation. Indiana excluded farm and agricultural employees from the workers’ compensation statute. The hearing officer held she was not a farm or agricultural worker, and that determination was upheld by the court of appeals.

2009

Baker v. Shields, 767 N.W.2d 404 (Iowa 2009)

Farm hand was injured when, during the course of his employment, his employ-er’s horse landed on him when he was attempting to mount it. The employer did not have workers’ compensation insurance, so the employee sued for negligence. The court dismissed the suit based on the Iowa Equine Immunity Statute. On appeal, the farm hand argued that the statute was not intended to apply to employment in a traditional farming operation. The court disagreed, holding that the literal terms of the statute immunize any “person” – even if not an “equine activity sponsor” – from liability.

530


Gillespie v. Sathers Family Partnership, 2009 WL 5409074 (Okla. Civ. App. 2009)

Gillespie was injured when trying to halter break a horse. Her workers’ compensation claim was rejected because she was an agricultural worker not operating motorized vehicles. She asserted that the exception did not apply because she regularly drove a four-wheeler on the job. The court rejected that claim because she was employed as a ranch hand and driving the four-wheeler was merely incidental to her job.

Lopez v. Midstates Horse Shows, Inc., 2009 WL 3337614 (Iowa Ct. App. 2009)

Lopez occasionally, but not exclusively, worked for a horse show organizer, setting up for the show and performing security duty. After an injury received while setting up, he filed for workers’ compensation. The determination that he was an employee rather than an independent contractor, was affirmed, although the court admitted that there were indicia of both employment and independent contractor status.

2008

Hernandez v. Industrial Comm’n, 2008 WL 2410207 (Ariz. Ct. App. 2008)

Exercise rider was injured when horse he was riding startled and veered into the rail. Rider made a claim for workers’ compensation benefits from the trainer, but had been treated by the trainer as an independent contractor. The court of appeals upheld the ALJ’s determination that rider was an employee.

The court reviewed the evidence presented at the hearing to determine the indicia of control. The court noted that the rider occasionally rode for other trainers, but only when his work for the trainer was completed. The trainer provided the horse, saddle, and bridle, but the rider provided his own helmet, whips, chaps, boots and vest. The trainer had the right to not use the rider. Although the trainer generally instructed as to which horse to ride and the type of exercise work to provide, the rider was not otherwise supervised. This evidence was sufficient indicia of control to justify a finding that the rider was an employee.

531


Kolacki v. Verink, 893 N.E.2d 717 (III. App. Ct. 2008)

Employee of veterinary clinic was injured when kicked by a horse boarded on the premises. The trial court held that the negligence claim against the landowner/operator of the clinic was barred by the workers’ compensation act. The employee argued that the claim was not subject to the exclusive remedies provision of the workers’ compensation act because the accident occurred when the owner was acting in a “dual capacity” – that is, where the employer creates an obligation independent of those imposed as an employer. The court rejected that argument, holding that property ownership by the employer does not give rise to the dual-capacity doctrine.

2007

Miller v. Blacktype Farms, 952 So. 2d 867 (La. Ct. App. 2007)

Employee of Thoroughbred horse farm was injured after returning to her residence during clearing of brush (although conflicting evidence existed as to when the accident actually occurred). Employee filed a workers’ compen-sation claim, and the hearing officer ruled that the employee was a 24-hour employee because the owners of the farm had provided her a residence, albeit one not on the farm. The appeals court reversed, holding that employee was not a 24-hour employee, noting that the residence was not on the farm or even adjacent to the farm.

2006

Fitzgerald v. Stables, 890 A.2d 933 (N.J. 2006)

Fitzgerald was an assistant trainer employed by trainer, Coddington Stables, when she was injured while caring for a horse owned by another. She made workers’ compensation claims both against her employer and against the New Jersey Horse Racing Injury Compensation Board which covered “horse racing industry employees.” The Workers’ Compensation Board ruled that the Horse Racing Injury Compensation Board was primarily liable, thus Stables was not liable. The Supreme Court of New Jersey disagreed, determining that Fitzgerald was not a “horse racing industry employee” because the definition did not extend to employees of trainers, and because the Horse Racing Injury Compensation system was designed as a safety net for those employed by horse owners who were otherwise not covered for workers’ compensation.

532


McKenzie v. New York Jockey Injury Comp. Fund, 27 A.D.3d 1003 (N.Y. App. Div. 2006)

Exercise rider at Belmont was injured while working a horse. His license had expired prior to the accident, however. The Workers’ Compensation Judge determined that the exercise rider was nevertheless covered as an employee of the New York Jockey Injury Compensation Fund, and thus the Fund was responsible for compensating for the injuries.

Workman v. Anderson Music Co., 149 P.3d 1060 (Okla. Civ. App. 2006)

Worker was dispatched to a client and was injured when her vehicle struck an at-large horse. She sued her employer for failure to carry workers’ com-pensation insurance. Summary judgment was granted to the employer. The decision was affirmed because the failure to carry such insurance did not result in the accident.

2003

Goodman v. Hartington, 862 So. 2d 890 (Fla. Dist. Ct. App. 2003)

Exercise rider was employed by incorporated farm. While exercising a horse, the horse was spooked by a dog owned by the owners of the corporation, and the exercise rider was thrown and severely injured. The exercise rider sued the owners, but the owners asserted workers’ compensation immunity. Summary judgment was granted to the owners, but the Florida Court of Appeals reversed, holding that a material issue of fact existed as to whether the ownership of the dog was within the course of employment.

McCutcheon v. Workers’ Compensation Bd., 2003 WL 1851510 (Cal. Ct. App. 2003)

A groom was injured while holding a horse for her farrier-husband during a shoeing. The groom typically worked for her husband, and was paid a portion of his fee by him for the work. The court upheld the Workers’ compensation Board’s determination that she was an employee of the trainer who hired the farrier. The court noted that she was not an independent contractor because she was “directed by a specialist, could be discharged at will, was not engaged in a distinct occupation or business, did not provide her own specialized tools, and the task required little skill.”

533


2002

Goetzinger v. Wheeler, 2002 WL 663678 (Iowa Ct. App. 2002)

Nancy Wheeler worked part-time for Goetzinger training and showing horses. Wheeler was injured while showing Goetzinger’s horse at a county fair. She made a workers’ compensation claim. Goetzinger resisted this claim partially on the basis that Wheeler was not acting in the scope of her employment when she was showing a horse. The court disagreed stating that at the time she was showing the horse, she was an employee, not an independent contractor. The court was not persuaded by the fact that she was not compensated on an hourly basis for her weekend work in showing horses.

2001

Ochoa v. Dep’t of Labor, 20 P.3d 939 (Wash. Ct. App. 2001)

Washington’s workers’ compensation statute contains an exception for “jockeys while participating in or preparing horses for race meets.” An injured jockey argued that the injury occurred while he was acting as an exercise rider, not a jockey. The court of appeals agreed, even though the exercise riding occurred during a race meet. Significant to the decision was that he was exercising the horse for a flat fee, rather than for a separate payment from winnings.

2000

Irish Hunt Farms, Inc. v. Stafford, 2000 WL 972656 (Del. Super. Ct. 2000)

Riding instructor was injured when she tried to calm a student’s horse. The court ruled that she was employee of the stable and thus entitled to workers’ compensation benefits.

534


535

Table of Cases

TABLE OF CASES

536


537

Table of Cases

Table of Cases

AAbraham & Veneklasen Joint Venture v. American Quarter Horse Ass’n,

776 F.3d 321 (10th Cir. 2015) ................................................................. 39, 67Access Now, Inc. v. Town of Jasper, 268 F. Supp. 2d 973 (E.D. Tenn. 2003) ..........220ACRA Turf Club, LLC v. Zanzuccki, 2012 WL 2864402 (D.N.J. 2012) ........... 354Adamo v. Dillon, 900 F. Supp. 2d 499 (M.D. Pa. 2012), aff’d

539 F. App’x 51 (3d Cir. 2013) ............................................................. 93, 348Adams v. Delaware Harness Racing Comm’n, 999 A.2d 860 (Del. 2010) ....... 360Adams v. Hare, 536 S.E.2d 284 (Ga. Ct. App. 2000) ........................................ 291Adams v. State of Texas, 2016 WL 6809220 (Tex. App. 2016) ............................. 4Adams v. Wallace, 2011 WL1886580 (Conn. Super. Ct. 2011) ........................ 432Adika v. Smith, 466 F.3d 503 (6th Cir. 2006) .................................................... 461Advent Stable Partners 1996 v. De Roualle, et al., Republique

Francaise Tribunal de Grande Instance de Senlis ....................................... 419Agilar v. Louisiana State Racing Comm’n, 116 So. 3d 1029

(La. Ct. App. 2013) ..................................................................................... 353Agnew v. State Bd. of Equalization, 36 Cal. Rptr. 3d 464

(Cal. Ct. App. 2005) .................................................................................... 484Agricultural Ins. Co. v. Matthews, 301 A.D.2d 257 (N.Y. App. Div. 2002) ............185AI-Qasimi v. Pallone, 2008 WL 4178776 (S.D. Texas 2008) ............................. 80Alaimo v. Racetrack Evangeline Downs, 893 So. 2d 190

(La. Ct. App. 2005) ..................................................................................... 173Albarado v. Kentucky Horse Racing Auth., 2004 WL 1811504

(W.D. Ky. 2004) .......................................................................................... 380Allen v. Kentucky Horse Racing Auth., 136 S.W.3d 54 (Ky. Ct. App. 2004) ...........381Allen v. Pennsylvania Soc’y for the Prevention of Cruelty to Animals,

488 F. Supp. 2d 450 (M.D. Pa. 2007) .................................................... 27, 101Allison v. Johnson, 2001 WL 589384 (Ohio Ct. App. 2001) ............................ 288Allis v. Turner, 259 A.D.2d 995, 688 N.Y.S.2d 864 (N.Y. App. Div. 1999) ..... 295Amburgey v. Sauder, 605 N.W.2d 84 (Mich. Ct. App. 1999) ............................ 295American Greyhound Racing v. Hall, 146 F. Supp. 2d 1012 (D. Az. 2001) ...... 394American Horse Protection Ass’n v. Veneman, 200 F.R.D. 153

(D. D.C. 2001) ............................................................................................... 33American Wild Horse Preservation Campaign v. Perdue,

2017 WL 4385259 (D.C. Cir. 2017) ............................................................ 519American Wild Horse Preservation Campaign v. Salazar,

800 F. Supp. 2d 270 (D.D.C. 2011) ............................................................. 522American Wild Horse Preservation Campaign v. Zinke,

2017 WL 4349012 (D. Idaho 2017) ............................................................ 519Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576

(Ind. Ct. App. 2006) .................................................................................... 267

538


Anderson v. New York Racing Ass’n, Inc., 2004 WL 60287 (S.D.N.Y. 2004) .........381Andrews v. Raphaelson, 2007 WL 160783 (D. Nev. 2007) .............................. 137Angelle v. Louisiana State Racing, 828 So. 2d 1153 (La. Ct. App. 2002) ........ 389Annunziata v. New Jersey Racing Comm’n, 2017 WL 4390266

(D.N.J. 2017) ......................................................................................... 87, 333Annuzzi v. Comm’r, T.C. Memo. 2014-233 (T.C. 2014) ................................... 478Anobile v. Pelligrino, 274 F.3d 45 (2d Cir. 2001) ............................................. 394Antonini v. Blue Gate Farm, LLC, 2012 WL 6632111 (E.D. La. 2012) ............. 77Aponte v. Castor, 802 N.E.2d 171 (Ohio Ct. App. 2003) ................................. 281Appalachian Racing, LLC v. The Family Trust Foundation,

2012 WL 2160190 (Ky. Ct. App. 2012), 423 S.W.3d 726 (Ky. 2014) ........ 344Arizona Horsemen’s Ass’n v. The Industrial Comm’n of Arizona,

2011 WL 2176192 (Az. Ct. App. 2011) ...................................................... 528Arlington Park Racecourse, LLC v. Illinois Racing Bd., 980 N.E.2d 72

(Ill. App. Ct. 2012) ...................................................................................... 355Atkins v. Stratmeyer, 600 N.W.2d. 891 (S.D. 1999) ......................................... 315Austin v. Bear Valley Springs Ass’n, 2006 WL 2499135 (Cal. Ct. App. 2006) .......268

BBack Bay Farm, LLC v. Collucio, 230 F. Supp. 2d 176 (D. Mass. 2002) ........... 82Back v. USDA, 2011 WL 4056319 (6th Cir. 2011) ............................................. 18Baechler v. Beaunaux, 272 P.3d 277 (Wash. Ct. App. 2012) ............................ 505Baffert v. California Racing Bd., 332 F.3d 613 (9th Cir. 2003) ................ 105, 386Bailly v. Thompson, 2008 WL 2229022 (D. Minn. 2008) ................................. 261Baker v. Shields, 767 N.W.2d 404 (Iowa 2009) ................................................ 529Baldridge v. Cordes, 85 S.W.3d 511 (Ark. 2002) ..................................... 106, 133Balmoral Racing Club, Inc. v. Churchill Downs, Inc.,

953 F. Supp. 2d 885 (N.D. Ill. 2013) ........................................................... 349Balmoral Racing Club Inc. v. Gonzales, 788 N.E.2d 269 (Ill. App. Ct. 2003) ........386Bame v. City of Del Mar, 104 Cal. Rptr. 2d 183 (Cal. Ct. App. 2001) ............. 394Banks v. Zinke, 2010 WL 2556965 (Cal. Ct. App. 2010) .................................. 448Barkley v. James, 2011 WL 900056 (W.D. Ok. 2011) ...................................... 251Barrett v. Leech, 2014 WL 3659366 (Cal. Ct. App. 2014) ............................... 238Barrit v. Lowe, 669 N.W.2d 189 (Wis. Ct. App. 2003) ..................................... 281Bartowski v. Case, 2004 WL 944267 (Conn. Super. Ct. 2004) ......................... 278Baxter v. Delaware Harness Ass’n, 2001 WL 167849 (Del. Super. Ct. 2001) ........394Baxter v. State, 891 N.E.2d 110 (Ind. Ct. App. 2008) ......................................... 25B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998) .................................... 299Beattie v. Mickalich, 784 N.W.2d 38 (Mich. 2010) .......................................... 255Beatty v. Alvarez, 2003 WL 21470302 (Cal. Ct. App. 2003) ............................ 281Beaver v. Ohio State Racing Comm’n, 2015 WL 1641409

(Ohio Ct. App. 2015) ................................................................................... 343

539

Table of Cases

Becker v. Longinaker, 2010 WL 1578400 (Iowa Ct. App. 2010) ..................... 448Beckwith v. Sabini, 962 N.Y.S.2d 809 (N.Y. App. Div. 2013) .......................... 349Beckwith v. Weber, 277 P.3d 713 (Wyo. 2012) ................................................. 247Bedford Downs Mgmt. Corp. v. State Harness Racing Comm’n,

926 A.2d 908 (Pa. 2007) ............................................................................. 369Beggs v. Griffith, 913 N.E.2d 1230 (III. App. Ct. 2009) ................................... 259Belcher v. State Harness Racing Comm’n, 728 A.2d 425

(Pa. Commw. Ct. 1999) ............................................................................... 397Bell v. Tampa Bay Downs, Inc., 2011 WL 6718266 (M.D. Fla. 2011)........ 97, 357Bennett v. USDA, 219 F. App’x 441 (6th Cir. 2007) ........................................... 28Bensalem Racing Ass’n v. Pennsylvania State Harness Racing Comm’n,

19 A.3d 549 (Pa. Commw. Ct. 2011) .......................................................... 197Berlangieri v. Running Elk Corp., 76 P.3d 1098 (N.M. 2003) .......................... 281Bernard v. Blue Cross Blue Shield of Michigan, 2017 WL 3524692

(W.D. Wisc. 2017) ....................................................................................... 228Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372

(E.D.N.Y. 2012)........................................................................................... 207Berry v. Comm’r, T.C. Memo. 2000-109 (T.C. 2000) ....................................... 162Betts v. Comm’r, T.C. Memo. 2010-164 (T.C. 2010) ........................................ 156Bice v. City of Rexford, 2007 WL 2915611 (Kan. Ct. App. 2007) .................... 218Bickford v. State, 25 N.E.3d 1275 (Ind. Ct. App. 2015) ........................................ 7Bietsy v. Flynn, 2012 WL 246441 (Ky. Ct. App. 2012) .................................... 247Big Elk v. Kastning, 141 F.3d 1184 (10th Cir. 1998) ........................................ 167Biggs v. Eaton Sales, Inc., 2011 WL 1901793 (Ky. Ct. App. 2011) ................... 78Birmingham Racing Comm’n v. Alabama Thoroughbred Ass’n,

775 So. 2d 207 (Ala. Civ. App. 1999) ......................................................... 202Birzer v. The Jockey’s Guild, Inc., 444 F. Supp. 2d 1005 (C.D. Cal. 2006) ............... 81Biszantz v. Stephens Thoroughbreds, LLC, 2015 WL 574594

(E.D. Ky. 2015), aff’d, 620 F. App’x 535 (6th Cir. 2015) ........................... 426Blackwell v. Comm’r, T.C. Memo. 2011-188 (T.C. 2011) ................................ 156Bloodstock Research Information Services, Inc. v. Edbain.com, LLC,

622 F. Supp. 2d 504 (E.D. Ky. 2009) ............................................................ 79Bloodsworth v. U.S., 2009 WL 2231649 (D. Ore. 2009), and

2010 WL 170261 (D. Ore. 2010) ................................................................ 255Bloomer v. Shauger, 942 N.Y.S.2d 277 (N.Y. App. Div. 2012), aff’d

989 N.E.2d 560 (N.Y. 2013)........................................................................ 242Bloom v. Miami-Dade County, 816 F. Supp. 2d 1265 (S.D. Fl. 2011).......... 18, 97Blue Skies Racing Stable, LLC v. O’Sullivan Farms, LLC,

2014 WL 3721160 (Ky. Ct. App. 2014) ...................................................... 428Blumenthal v. Bronx Equestrian Center, 26 N.Y.S.3d 78

(N.Y. App. Div. 2016) ................................................................................. 232Bonfield v. Figlieno, 2008 WL 4060992 (Cal. Ct. App. 2008).......................... 436Bonfield v. Salak, 2008 WL 4060988 (Cal. Ct. App. 2008) .............................. 436

540


Borrelli v. Zoning Bd. of Appeals, 941 A.2d 966 (Conn. App. Ct. 2008) ......... 218Bosco v. Clark, 2002 WL 1370797 (Ohio Ct. App. 2002) .................................. 82Bothell v. Two Point Acres, Inc., 965 P.2d 47 (Ariz. Ct. App. 1998) ................ 300Bourgeois v. Louisiana State Racing Comm’n, 2010 WL 4542339

(La. Ct. App. 2010) ..................................................................................... 361Bove v. Schlosstein, 2000 WL 1715679 (Wash. Ct. App. 2000) ....................... 291Boxie v. Louisiana State Racing Comm’n, 826 So. 2d 1183

(La. Ct. App. 2002) ..................................................................................... 390Boyd Racing, LLC v. Fruge, 996 So.2d 659 (La. Ct. App. 2008) ..................... 482Bradford v. Kaster, 732 So. 2d 827 (La. Ct. App. 1999) .................................. 295Brannon v. Comm’r, T.C. Memo. 2000-76 (T.C. 2000) .................................... 162Brennan v. Shapiro, 785 N.Y.S. 2d 100 (N.Y. App. Div. 2004) ........................ 410Brewer v. Peak Performance Nutrients Inc., 2012 WL 3861169

(Del. Super. Ct. 2012) ................................................................................... 77Bronson v. Comm’r, T.C. Memo. 2012-17 (T.C. 2012) ............................ 154, 479Brown v. Beets, 279 P.3d 193 (Okl. Civ. App. 2012) ........................................ 247Brown v. Country View Equestrian Center, Inc., 2017 WL 4417729

(W.D. Wisc. 2017) ....................................................................................... 229Brown v. New York Racing and Wagering Bd., 871 N.Y.S.2d 623

(N.Y. App. Div. 2009) ................................................................................. 506Brown v. State, 292 S.W.3d 288 (Ark. 2009) ...................................................... 23Brumfield v. Gafford, 768 So. 2d 223 (La. Ct. App. 2000) ............................... 292Brumfield v. Richardson, 2002 WL 234768 (Cal. Ct. App. 2002) .................... 512Brunell v. Kyle, 2007 WL 1121362 (Minn. Ct. App. 2007) .............................. 264Brunk v. Nebraska State Racing Comm’n, 700 N.W.2d 594

(Neb. 2005) ......................................................................................... 378, 510Buck v. Kentucky Horse Racing Comm’n, 2014 WL 4628603

(D. Utah 2014) ............................................................................................ 344Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001) ..................................... 193Burke v. Mckay, 679 N.W.2d 418 (Neb. 2004) ................................................. 278Burnell v. Marin Humane Soc’y, 2015 WL 6746818 (N.D. Cal. 2015) .......... 7, 91Burneson v. Ohio State Racing Comm’n, 2004 WL 1405321

(Ohio Ct. App. 2004) ................................................................................... 381Burns v. Leap, 645 S.E.2d 751 (Ga. Ct. App. 2007) ......................................... 264Butler v. Shipshewana Auction Inc., 697 N.E.2d 1285 (Ind. Ct. App. 1998) ...........417Bylin v. Billings, 568 F.3d 1224 (10th Cir. 2009) .............................................. 259Bynum v. Whitley, 2008 WL 304737 (N.C. Ct. App. 2008) .............................. 310

CCady v. Tennessee Bd. of Veterinary Medical Examiners,

2009 WL 2707398 (Tenn. Ct. App. 2009) ................................................... 506Calderon v. Reinig, 2011 WL 5925071 (Ohio Ct. App. 2011) .......................... 432

541

Table of Cases

Callahan v. Rafail, 2001 WL 283012 (Del. Super. Ct. 2001) ............................ 175Callahan v. State of Delaware, 2012 WL 2106943 (Del. Super. Ct. 2012) .............355Campbell v. City of New York, 31 A.D.3d 594 (N.Y. App. Div. 2006).............. 311Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012),

2013 WL 203418 (W.D. Okla. 2013), aff’d, 777 F.3d 1073 (10th Cir. 2014) ....................................................................................... 10, 91

Canning v. Poole, 2012 WL 5198453 (E.D. Ky. 2012) ...................... 95, 447, 505Capital Racing v. California Horse Racing Bd., 75 Cal. Rptr. 3d 384

(Cal. Ct. App. 2008) .................................................................................... 198Capone v. New Jersey Racing Comm’n, 817 A.2d 995

(N.J. Super. Ct. App. Div. 2003) ................................................................. 387Carden v. Kelly, 175 F. Supp. 2d 1318 (D. Wyo. 2001) .................................... 289Cardoso v. Hill, 2007 WL 3138399 (Cal. Ct. App. 2007) ................................. 438Carey v. Schwab, 969 N.Y.S.2d 619 (N.Y App. Div. 2013),

997 N.Y.S.2d 180 (N.Y. App. Div. 2014) .................................................... 238Carinda v. State, 734 So. 2d 514 (Fla. Ct. App. 1999) ............................. 397, 514Carl v. Resnick, 714 N.E.2d 1 (Ill. App. Ct. 1999) ........................................... 295Carmody v. Comm’r, T.C. Memo. 2016-225 (T.C. 2016) ................................. 149Carmouche v. W.G. Yates and Sons Constr., 2006 WL 1635703

(W.D. La. 2006) ........................................................................................... 268Carney v. Wallen, 665 N.W.2d 439 (Iowa Ct. App. 2003) ................................ 452Carpenter v. Astor-White, 2012 WL 399110 (N.D.N.Y. 2012) ......................... 137Carrillo v. Penn Nat’l Gaming, 172 F. Supp. 3d 1204 (D.N.M. 2016) ...... 89, 339Carter v. Heitzler, 2015 WL 6470502 (Cal. Ct. App. 2015) ............................. 235Carter v. Lloyd, 2008 WL 5401447 (La. App. Ct. 2008) .................................. 310Carter v. Rowe, 710 N.W.2d 545 (Iowa Ct. App. 2005) ................................... 273Casino Free Philadelphia v. Pennsylvania Gaming Control Bd.,

934 A.2d 1249 (Pa. 2007) ........................................................................... 370Castagnetta v. Comm’r, 2006 WL 325833 (T.C. 2006) .................................... 483Cathey v. Louisiana State Racing Comm’n, 855 So. 2d 414

(La. Ct. App. 2003) ..................................................................................... 387Catskill Regional Off-Track Betting Corp. v. New York Racing and

Wagering Bd., 77 A.D.3d 1256 (N.Y. App. Div. 2010) ............................... 198Caubarreaux v. Free, 799 So. 2d. 603 (La. Ct. App. 2001) .............................. 289Cavel International, Inc. v. Madigan, 500 F.3d 544 (7th Cir. 2007)................. 457Central Park Sightseeing, LLC v. New Yorkers for Clean, Livable &

Safe Streets, Inc., 157 A.D.3d 28 (N.Y. App. Div. 2017) ................................ 3Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465 (Colo. 2004) .................. 278Chambers v. Davenport, 2003 WL 2294592 (Ark. Ct. App. 2003) .................. 313Chandler v. Comm’r, T.C. Memo. 2010-92 (T.C. 2010) ................................... 156Chappelle v. Burch, 2012 WL 762333 (Tenn. Ct. App. 2012) .......................... 215Charles v. Los Angeles Turf Club, 2003 WL 22229401

(Cal. Ct. App. 2003) .................................................................................... 174

542


Chavez Construction Inc. v. McNeely, 177 S.W.3d 593 (Tex. App. 2005) ....... 273Chick v. Brimm, 2002 WL 31999427 (Del. Com. Pl. 2002) ............................. 410Choctaw Racing Services, LLC v. Kentucky HBPA, 2007 WL 3124693

(W.D. Ky. 2007) .......................................................................................... 199Chovanes v. Thoroughbred Racing Ass’n, 2001 WL 43780 (E.D. Pa. 2001) ..........513Chung v. New York Racing Ass’n, 714 N.Y. S.2d 429 (N.Y. Dist. Ct. 2000) ...........396Churchill Downs, Inc. v. Commemorative Derby Promotions,

2014 WL 3908521 (N.D. Ga. 2014) ............................................................ 189Churchill Downs Inc. v. Comm’r, 307 F.3d 423 (6th Cir. 2002) ....................... 484Churchill Downs Inc. v. Dearen, 2007 WL 1308355 (W.D. Ky. 2007) ............ 495Churchill Downs Inc. v. ODS Technologies, L.P., 2007 WL 1231550

(W.D. Ky. 2007) .......................................................................................... 370Churchill Downs, Inc. v. Thoroughbred Horsemen’s Group, LLC,

2009 WL 774354 (W.D. Ky. 2009) ............................................................... 42Churchill Downs Inc. v. Trout, 979 F. Supp. 2d 746 (W.D. Tex. 2013) ............ 350Clarendon Nat’l Ins. Co. v. Roberts, 120 S.W.3d 141 (Ark. Ct. App. 2003) ...........184Clark v. White, 758 So. 2d 370 (La. Ct. App. 2000) ......................................... 292Cloud Foundation, Inc. v. Salazar, 738 F. Supp. 2d 35 (D.D.C. 2010),

738 F. Supp. 2d 42 (D.D.C. 2010), 999 F. Supp. 2d 117 (D.D.C. 2013) ...........520Cloverleaf Enterprises, Inc. v. Maryland Thoroughbred Horseman’s Ass’n,

2010 WL 3091096 (D. Md. 2010) ......................................................................... 41Clyncke v. Waneka, 157 P.3d 1072 (Colo. 2007) .............................................. 264Coggin v. City of Westerfield, 2009 WL 3065053 (Mass. Land. Ct. 2009) ....... 217Cole v. Ladbroke Racing, 614 N.W.2d 169 (Mich. Ct. App. 2000) .................. 292Collier v. New Mexico Livestock Bd., 316 P.3d 195 (N.M. Ct. App. 2013) ............... 12Colonel v. Meyerson, 91 So. 2d 690 (Fla. Dist. Ct. App. 2006)........................ 268Colorado Wild Horse and Burro Coalition, Inc. v. Salazar,

890 F. Supp. 2d 99 (D.D.C. 2012) ............................................................... 521Colorado Wild Horse and Burro Coalition v. Kempthorne,

571 F. Supp. 2d 71 (D.C.C. 2008) ............................................................... 522Columbus Concerned Citizens, Inc. v. Minnesota Racing Comm’n,

2006 WL 1529494 (Minn. Ct. App. 2006) .................................................. 374Columbus v. Moore, 2006 WL 2089210 (Mich. Ct. App. 2006) ....................... 268Com. v. Noel, 857 A.2d 1283 (Pa. 2004) ........................................................... 133Com. v. Pina, 907 N.E.2d 681, 2009 WL 1635311 (Mass. App. Ct. 2009) ........ 23Com. v. Vogelsong, 90 A.3d 717 (Pa. Super. 2014) ........................................... 305Confederacion Hipica De Puerto Rico, Inc. v. Confederacion de Jinetes

Puertorriquenos, Inc., 2017 WL 5197224 ___ F. Supp. 3d ___ (D.P.R. 2017) ......................................................................................... 39, 333

Contender Farms, LLP v. USDA, 779 F.3d 258 (5th Cir. 2015) ........................... 8Conway v. Holman Ranch, 2003 WL 22138983 (Cal. Ct. App. 2003) ............. 282Cooperman v. David, 214 F.3d 1162 (10th Cir. 2000) ...................................... 292Cornett v. Red Stone Group, Inc., 41 N.E.3d 155 (Ohio 2015) ........................ 235

543

Table of Cases

Corona v. Malm, 735 N.E.2d 138 (Ill. App. Ct. 2000) ...................................... 315Corrigan v. Comm’r, T.C. Memo. 2005-119 (T.C. 2005) ................................. 484Cortes v. Rosales, 2016 WL 146212 (Iowa Ct. App. 2016) .............................. 426Corzo v. Louisiana, 2008 WL 4600759 (W.D. La. 2008) ................................. 261County of Riverside v. The Workers’ Compensation Appeals Bd.,

2012 WL 6217634 (Cal. Ct. App. 2012) ..................................................... 528Courbat v. Dahana Ranch Inc., 141 P.3d 427 (Haw. 2006) .............................. 269Courtaulds Fibers v. Long, 779 So. 2d 198 (Ala. 2000) ................................... 221Cowans v. Ohio State Racing Comm’n, 11 N.E.3d 1215

(Ohio Ct. App. 2014) ................................................................................... 344Craig v. Comm’r, 2013 WL 3791135 (T.C. 2013) ............................................ 152Crestwood Farm Bloodstock v. Everest Stables, 864 F. Supp. 2d 629

(E.D. Ky. 2012), 2013 WL 1332499 (E.D. Ky. 2013); 751 F.3d 434 (6th Cir. 2014) ............................................................................................. 142

Crissman v. Delaware Harness Racing Comm’n, 791 A.2d 745 (Del. 2002) .................................................................................................. 390

Crissman v. Dover Downs Entm’t Inc., 289 F.3d 231 (3d Cir. 2002) ........ 107, 390Croghan v. New Jersey Racing Comm’n, 2011 WL 222135

(N.J. Super. Ct. App. Div. 2011).................................................................. 358Cuddeback v. Flanagan, 2000 WL 1146850 (Wash. Ct. App. 2000) ................ 292Culver v. Samuels, 37 P.3d 535 (Colo. Ct. App. 2001) ..................................... 289Cunmulaj v. Chaney, 2009 WL 349753 (Mich. Ct. App. 2009).......................... 23Cunningham v. Harding, 996 P.2d 885 (Mont. 1999) ....................................... 453Curry v. Pennsylvania Gaming Control Bd., 916 A.2d 624 (Pa. 2007) ............ 370

DDaley v. Gorajec, 2007 WL 2286132 (S.D. Ind. 2007) ............................ 101, 371Dalton v. Adirondack Saddle Tours, Inc., 40 A.D.3d 1169

(N.Y. App. Div. 2007) ................................................................................. 265Daniel v. Stump, 2013 WL 3184771 (W. Va. 2013) ...................................... 13, 76Danvers v. Bilach, 2009 WL 5084947 (N.J. Sup. Ct. App. Div. 2009) ............. 506Darling v. Remington, 697 N.W.2d 127 (Iowa Ct. App. 2005) ......................... 273DaSilva v. Barone, 849 A.2d 902 (Conn. App. Ct. 2004) ................................. 220Davidson v. City of Edwardsville, 281 P.3d 598 (Kan. Ct. App. 2012) ............ 216Davis v. 3 Bar F Rodeo, 2007 WL 3226295 (Ky. Ct. App. 2007) .................... 265Davric Marine Corp. v. Bangor Historic Track Inc., 751 A.2d 1024

(Me. 2000) ................................................................................................... 396Davric Marine Corp. v. Maine Harness Racing Comm’n, 732 A.2d 289

(Me. 1999) ................................................................................................... 208Davric Marine Corp. v. Rancourt, 216 F.3d 143 (1st Cir. 2000) ........................ 44Deak v. Back Farms, LLC, 34 A.D.3d 1212 (N.Y. App. Div. 2006) ................. 269Deardorff v. Farnsworth, 343 P.3d 687 (Or. Ct. App. 2015) ............................ 179

544


Deaton v. Kentucky Horse Racing Auth., 172 S.W.3d 803 (Ky. Ct. App. 2004) ..................................................................................... 382

Delahoussaye v. Ohio State Racing Comm’n, 2004 WL 1445951 (Ohio Ct. App. 2004) ................................................................................... 382

De La Torre v. California Horse Racing Bd., Los Angeles, CA, Superior Ct. No. BS 154412 (March 10, 2016) .......................................... 340

Del Raso v. U.S., 244 F.3d 567 (7th Cir. 2001) ................................................. 289Demarest v. Broadhurst, 92 P.3d 1168 (Mont. 2004) ................................ 440, 462de Mercado v. Superior Court, 55 Cal. Rptr. 3d 889 (Cal. Ct. App. 2007) ..............509Dennis v. Comm’r, T.C. Memo. 2010-216 (T.C. 2010) .................................... 157Dennis v. Delaware Harness Racing Comm’n, 2006 WL 2686528

(Del. Super. Ct. 2006) ................................................................................. 374Dennis v. Nickajack Farms, Ltd., 2014 WL 7014534 (Ohio Ct. App. 2014)...........238Dep’t of Consumer and Industry Services v. Hoffman, 583 N.W.2d 260

(Mich Ct. App. 1998) .................................................................................. 515Dep’t of Revenue v. Ocala Breeders’ Sales, Inc., 725 So. 2d 387

(Fla. Dist. Ct. App. 1998) ............................................................................ 487Dep’t of Revenue v. Shinin’ B Trailer Sales, LLC, 471 S.W.3d 309

(Ky. Ct. App. 2015) ..................................................................................... 477DeShields v. Mountain Laurel Resort & Spa, 2011 WL 1984151

(M.D. Pa. 2011) ........................................................................................... 251Deutsch v. Traditional Equitation School, 2008 WL 4683877

(Cal. Ct. App. 2008) .................................................................................... 261Deveneau v. Wielt, 144 A.3d 324 (Vt. 2016)..................................................... 303Dewrell v. Lawrence, 58 P.3d 223 (Ok. Civ. App. 2002) .................................. 211Diamond State Ins. Co. v. Deardorff, 2011 WL 1459018 (E.D. Cal. 2011)........ 18Dickens v. Stephenson, 572 S.E.2d 442 (N.C. Ct. App. 2002) .......................... 285Dickerson v. USDA, 546 F.3d 335 (6th Cir. 2008) .............................................. 26Dilley v. Holiday Acres Properties, Inc., 2017 WL 2371295

(W.D. Wisc. 2017) ....................................................................................... 229DiMario v. Coppola, 10 F. Supp. 2d 213 (E.D.N.Y. 1998) ............................... 471DiPilato v. Biaseti, 6 A.D.3d 648 (N.Y. App. Div. 2004) ................................. 278Dishal v. Comm’r, T.C. Memo. 1999-110 (T.C. 1999) ..................................... 163Dixon v. Herman, 2010 WL 3038598 (Tex. App. 2010) ................................... 406DMS Farm, LLC v. Nelson, 2012 WL 1328600

(N.J. Super. Ct. App. Div. 2012) ................................................................. 447Dobkins v. Pearcy, 2012 WL 23262 (N.M. Ct. App. 2012) .............................. 306Dodds v. Comm’r, T.C. Memo. 2013-76 (T.C. 2013) ....................................... 152Dodge v. Comm’r, 188 F.3d 507 (6th Cir. 1998) .............................................. 164Doe v. AI Maktoum, 2008 WL 4965169 (E.D. Ky. 2008) ................................... 80Donk v. Miller, 365 F.3d 159 (2d Cir. 2004) ..................................................... 382Donovan v. Hartford Fire Ins. Co., 2002 WL 31866249

(Neb. Ct. App. 2002) ................................................................................... 185

545

Table of Cases

Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 989 A.2d 1075 (Conn. App. Ct. 2010) .......................................................... 21

Doyle v. Massachusetts State Racing Comm’n , 2003 WL 22481388 (Mass. Super. Ct. 2003) ............................................................................... 387

Doyle v. Monroe County Deputy Sheriff’s Ass’n, 758 N.Y.S.2d 791 (N.Y. App. Div. 2003) ................................................................................. 282

Drazin v. Chavones, 2012 WL 4510738 (E.D. Pa. 2012) ................................. 505Drury v. LeCompte, 2014 WL 1301534 (Ill. App. Ct. 2014) ............................ 215Duban v. Waverly Sales Co., 760 F.3d 832 (8th Cir. 2014)............................... 239Duckson v. Cargill, 2000 WL 2840774 (Ark. Ct. App. 2000) .......................... 470Duffy v. Milder, 896 A.2d 27 (R.I. 2006) .......................................................... 219Dullmaier v. Xanterra Parks & Resorts, ___ F.3d ___,

2018 WL 1056654 (10th Cir. 2018) ............................................................ 227Duncan v. State, 975 N.E.2d 838 (Ind. Ct. App. 2012) ....................................... 16Dungca v. Comm’r, T.C. Summ. Op. 2009-144 (T.C. 2009) ............................ 480Dunham v. Kootnai County, 2010 WL 556803 (D. Idaho 2010) .................. 21, 99Dutrow v. New York State Racing and Wagering Bd., 949 N.Y.S.2d 241

(N.Y. App. Div. 2012) ................................................................................. 355Duvall v. Howe, 2005 WL 2540206 (Mass. Super. Ct. 2005) ........................... 273Dye v. Office of the Racing Comm’n, 702 F.3d 286 (6th Cir. 2012) ........... 95, 355

EEagle Insurance v. Butts, 707 N.Y.S.2d 115 (N.Y. App. Div. 2000) ................. 293Eastburn v. Delaware Harness Racing Comm’n, 2006 WL 2900768

(Del. Super. Ct. 2006) ................................................................................. 374Eburn v. Capital Peak Outfitters, Inc., 882 F. Supp. 2d 1248

(D. Colo. 2012) ........................................................................................... 247Ecurie Reve Avec Moi, Inc. v. New Jersey Racing Comm’n,

2017 WL 6403001 (D.N.J. 2017) .......................................................... 87, 334Efford v. The Jockey Club, 796 A.2d 370 (Pa. Super. Ct. 2002) ................... 69, 83Einhorn v. Johnson, 996 N.E.2d 823 (Ind. Ct. App. 2013) ....................... 243, 527Ellison v. Green, 775 So. 2d 831 (Ala. Civ. App. 2000) ................................... 414Ellison v. Illinois Racing Bd., 878 N.E.2d 740 (Ill. App. Ct. 2007) .................. 371Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 WL 3906325

(D. Conn. 2014) ........................................................................................... 239Elvin v. Gubert, 2016 WL 4203512 (Mich. Ct. App. 2016) .............................. 503Emery v. Wildwood Mgmt., Inc., 230 F. Supp. 2d 116 (D. Me. 2002) .............. 285Emmerick v. Wisconsin, 2012 WL 1135930 (W.D. Wis. 2012) ..................... 16, 96Empacadora de Carnes de Fresnillo S.A. v. Curry, 476 F.3d 326

(5th Cir. 2007) ............................................................................................. 457Empress Casino Joliet Corp. v. Balmoral Racing Club, 651 F.3d 722

(2011), on remand 2013 WL 4478741 (N.D. Ill. 2013) .............................. 350

546


Empress Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277 (III. 2008) ....... 367Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723 (7th Cir. 2014) .......... 345Equus Associates Ltd. v. The Town of Southhampton,

37 F. Supp. 2d 582 (E.D.N.Y. 1999) ................................................... 109, 222Equus Sanctuary v. City of Los Angeles, 2010 WL 1882075

(Cal. Ct. App. 2010) ...................................................................................... 21Erie County Soc’y for Prevention of Cruelty to Animals v. Hoskins,

946 N.Y.S.2d 365 (N.Y. App. Div. 2012) ...................................................... 16Eriksson v. Nunnink, 191 Cal. App. 4th 826 (Cal. Ct. App. 2011);

183 Cal. Rptr. 3d 234 (Cal. Ct. App. 2015) ................................................. 236Erthel v. May, 736 S.E.2d 514 (N.C. Ct. App. 2012) ........................................ 216Eslin v. County of Suffolk, 795 18 A.D.3d 698 (N.Y. App. Div. 2005) ............. 274Esrick v. Mitchell, 2009 WL 2985679 (M.D. Fla. 2009) .................................. 120Estate of Filios v. Comm’r, T.C. Memo.1999-92 (T.C. 1999) .......................... 163Estate of Hoffman, 8 F. App’x 262 (4th Cir. 2001) ........................................... 485Estate of Stuller v. U.S., 2014 WL 3396084 (C.D. Ill. 2014);

55 F. Supp. 3d 1091 (C.D. Ill. 2014) ........................................................... 151Estes v. Stepping Stone Farm, LLC, 160 So. 3d 299 (Ala. Civ. App. 2014) ............239Everett v. State Farm, 37 So.3d 456 (La. Ct. App. 2010) ................................. 255Everson v. Everson, 2011 WL 4801884 (D. Az. 2011) ..................................... 448

FFackler v. Genetzky, 638 N.W.2d 521 (Neb. 2002) .......................................... 512Fairman v. Hurley, 373 F. Supp. 2d 227 (W.D.N.Y. 2005) ................................. 81Fanning v. Fox Meadow Farm, Inc., 164 F. Supp. 2d 921 (E.D. Mich. 2001) .......... 83Farmers Union Mutual Ins. Co. v. Staples, 90 P.3d 381 (Mont. 2004)............. 183FDIC v. Fedorov, 2010 WL 3419454 (E.D. Mich. 2010) ................................. 406FDIC v. Jeff Miller Stables, 573 F.3d 289 (6th Cir. 2009) ................................ 121Feld v. Conway, 16 F. Supp. 3d 1 (D. Mass. 2014) .................................... 75, 128Fellman v. Southfield Farms Corp., 747 So. 2d 1035

(Fla. Dist. Ct. App. 1999) ............................................................................ 470Fenty v. Seven Meadows Farms, Inc., 969 N.Y.S.2d 506

(N.Y. App. Div. 2013) ................................................................................. 243Ferguson v. Ulmer, 2003 WL 22512042 (Cal. Ct. App. 2003) ......................... 282Fiedler v. James, 971 So. 2d 256 (Fla. Dist. Ct. App. 2008) .............................. 63Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002) ........... 286Fifth Third Bank v. Gulf Coast Farms, LLC, 573 F. App’x 515

(6th Cir. 2014) ..................................................................................... 428, 465Fifth Third Bank v. Miller, 2011 WL 112423 (E.D. Ky. 2011) ......................... 433Fifth Third Bank v. Waxman, 726 F. Supp. 2d 742 (E.D. Ky. 2010) ................. 119Figueroa v. Tornabene, 74 A.D.3d 872 (N.Y. App. Div. 2010) ........................ 309Filer v. Adams, 966 NYS2d 553 (N.Y. App. Div. 2013) ................................... 243

547

Table of Cases

Filios v. Comm’r, 224 F.3d 16 (1st Cir. 2000) .................................................. 162Finger Lakes Racing Ass’n v. State of New York Racing and Wagering

Bd., 34 A.D.3d 895 (N.Y. App. Div. 2006) ................................................. 374Fintzi v. Riverdale Riding Corp., 32 A.D.3d 701 (N.Y. App. Div. 2006) .......... 269Fishman v. GRBR, Inc., 403 P.3d 660 (Mont. 2017) ......................................... 230Fitzgerald v. Stables, 890 A.2d 933 (N.J. 2006) ............................................... 531Florida Division of Pari-Mutuel Wagering v. Florida Standardbred

Breeders & Owners Ass’n, 983 So. 2d 61 (Fla. Dist. Ct. App. 2008) ......... 367Florida Horsemen Benevolent & Protective Ass’n v. Rudder,

738 So. 2d 449 (Fla. Dist. Ct. App. 1999) ................................................... 398Florida Quarter Horse Track Ass’n v. State, 133 So. 3d 1118

(Fla. Dist. Ct. App. 2014) ............................................................................ 345Ford v. New York State Racing and Wagering Bd., No. 2020-0303

(S. Ct. Schenectady Co. 2011), rev’d in part, 967 N.Y.S.2d 453 (N.Y. App. Div. 2013), aff’d 24 N.E.3d 1090 (N.Y. 2014) ......................... 345

Foster v. Comm’r, T.C. Memo. 2012-207 (T.C. 2012) ..................................... 155Foster v. State of Delaware, 2012 WL 5494664 (Del. Super. Ct. 2012) ........... 356Fox v. Knoblock, 2014 WL 4263715 (Mich. Ct. App. 2014) ............................ 240Frank v. Matthews, 136 S.W.3d 196 (Mo. Ct. App. 2004) ............................... 279Freed v. Comm’r, 2004 WL 2110085 (T.C. 2004) ............................................ 160Freed v. New York State Racing and Wagering Bd., 780 N.Y.S.2d 673

(N.Y. App. Div. 2004) ................................................................................. 383Friedberg v. Franchise Tax Bd., 2005 WL 1785229 (Cal. Ct. App. 2005) ....... 159Friends of Animals v. U.S. Bureau of Land Mgmt., 2017 WL 1025669

(D. Or. 2017) ............................................................................................... 519Frimml v. Comm’r, 2010 WL 5395420 (T.C. 2010) ......................................... 157Front Range Equine Rescue v. Bureau of Land Mgmt.,

2017 WL 5885314 (D. Colo. 2017) ............................................................ 519Front Range Equine Rescue v. Vilsack, 844 F.3d 1230 (10th Cir. 2017) ............ 73Frye v. County of Butte, 164 Cal. Rptr. 3d 928 (Cal. Ct. App. 2013) ................. 13Ft. Meyers Real Estate Holdings, LLC v. Dep’t of Business,

53 So. 3d 1158 (Fla. Dist. Ct. App. 2011) ................................................... 358Fuller v. Graham, 2000 WL 34410006 (Tex. App. 2000) ................................ 315Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13

(D.C. Cir. 2006) ........................................................................................... 523Funny Cide Ventures, LLC v. Miami Herald Publishing Co.,

955 So. 2d 1241 (Fla. 2007) ........................................................................ 128Fusco v. N.Y. State Racing and Wagering Bd., 931 N.Y.S.2d 439

(N.Y. App. Div. 2011) .................................................................................. 358

GGabriel v. Lovewell, 164 S.W.3d 835 (Tex. App. 2005) ..................................... 30Gadd v. Warwick, 792 S.E.2d 773 (Ga. Ct. App. 2016) .................................... 233

548


Gadsden Jai Alai, Inc. v. State, 26 So. 3d 68 (Fla. Dist. Ct. App. 2010) .......... 361Gaines Gentry Thoroughbreds v. Mandujano, 366 S.W.3d 456 (Ky. 2012) ...........528Gamble v. Peyton, 182 S.W.2d 1 (Tex. App. 2005) .......................................... 274Garcia v. New York Racing Ass’n, 2011 WL 3841524

(N.D.N.Y. 2011) ............................................................................................ 98Gardner v. Simon, 455 F. Supp. 2d 786 (W.D. Mich. 2006) ............................. 269Garner v. Langford, 55 So. 3d 711 (Fla. Dist. Ct. App. 2011) .......................... 307Garvin v. Tidwell, 126 So. 3d 1224 (Fla. Dist. Ct. App. 2012) ......................... 248Gentile v. Augusta, 1998 U.S. Dist. Lexis 20991 (E.D.N.C. 1998) .................... 84Germer v. Churchill Downs Mgmt., (Fl. Dist. Ct. App. 2016) .......................... 233Giardino v. Brown, 120 Cal. Rptr. 2d 77 (Cal. Ct. App. 2002) ......................... 286Gibbs v. Jackson, 990 S.W.2d 745 (Tex. 1999) ................................................ 316Gibson v. Donahue, 772 N.E.2d 646 (Ohio Ct. App. 2002) ............................. 286Gilbert v. MEC Oregon Racing, Inc., 251 P.3d 788 (Ore. Ct. App. 2011) ........ 197Giles v. Comm’r, 2005 WL 375462 (T.C. 2005) ............................................... 159Gillespie v. Sathers Family Partnership, 2009 WL 5409074

(Okla. Civ. App. 2009) ................................................................................ 530Gill v. Delaware Park, 294 F. Supp. 2d 638 (D. Del. 2003) ............................... 43Gill v. New York State Racing and Wagering Bd., 50 A.D.3d 494

(N.Y. App. Div. 2008) ................................................................................. 367Gingerich v. Com., 382 S.W.3d 835 (Ky. 2012) ............................................... 113Givens v. Delaware Harness Racing Comm’n, 2011 WL 5822626

(Del. Super. Ct. 2011) .................................................................................. 358Gleason v. Gilmore, 2010 WL 5017930 (D. Or. 2011) ............................... 98, 359Glenn Hill Farm, LLC v. California Horse Racing Bd.,

117 Cal. Rptr. 3d 550 (Cal. Ct. App. 2010) ................................................. 361Glenn v. Annunxiata, 72 A.D.3d 886 (N.Y. App. Div. 2010) ............................ 255Glover v. Weber, 2014 WL 4988156 (Wash. Ct. App. 2014) ............................ 240Goettsch v. El Capitan Stadium Ass’n, 2007 WL 1705664

(Cal. Ct. App. 2007) .................................................................................... 265Goetzinger v. Wheeler, 2002 WL 663678 (Iowa Ct. App. 2002) ...................... 533Gogel v. Hancock, 2011 WL 6757421 (Ky. Ct. App. 2011) .............................. 528Goldman v. Graber Post Buildings, Inc., 2007 WL 3046268 (S.D. Ill. 2007) ........ 311Gonzalez v. Royalton Equine Veterinary Services, 7 N.Y.S.3d 756

(N.Y. App. Div. 2015) ..................................................................................... 8Goodman v. Hartington, 862 So. 2d 890 (Fla. Dist. Ct. App. 2003) ........ 283, 532Graham v. Shamrock Stables, 19 N.E.3d 578 (Ohio Ct. App. 2014) ................ 240Granger v. Guillory, 819 So. 2d 477 (La. Ct. App. 2002) ................................ 314Grant v. Tucker, 2014 WL 4851793 (M.D. Tenn. 2014) ................................... 404Great American Ins. Co. v. GeoStar Corp., 2010 WL 845953

(E.D. Mich. 2010) ....................................................................................... 180Great American Ins. Co. v. Potter, 2006 WL 2854386 (E.D. Tenn. 2006) ....... 182Great American Ins. Co. v. Thorson, 2006 WL 2850165 (E.D. La. 2006) ....... 182

549

Table of Cases

Green v. Racing Ass’n of Central Iowa, 713 N.W.2d 234 (Iowa 2006) ............ 375Grey v. Johansson, 2014 WL 4259432 (D.N.J. 2014) ........................................ 76Gromer v. Matchett, 2010 WL 3467727 (Mo. Ct. App. 2010) .......................... 309Gross v. Victoria Station Farms Inc., 578 N.W.2d 757 (Minn. 1998) .............. 137Groves v. Woods, ___ S.W.3d ___, 2018 WL 560417 (Ky. Ct. App. 2018) ............227Guerro v. Bensalem Racing Ass’n, 25 F. Supp. 3d 573

(E.D. Pa. 2014) ................................................................................ 40, 92, 346Guinn v. Thomas, 2013 WL 3808010 (Ky. Ct. App. 2013) ............................... 244Gulf Coast Farms, LLC v. Fifth Third Bank, 2013 WL 1688458

(Ky. Ct. App. 2013) ..................................................................................... 446Gulfstream Park Racing Ass’n v. Gold Spur Stable Inc., 820 So. 2d 957

(Fla. Dist. Ct. App. 2002) ............................................................................ 391Gulfstream Park Racing Ass’n v. Kessinger, 874 So. 2d 645 (Fla. 2004) ........ 279Gulfstream Park Racing Ass’n v. Tampa Bay Downs, Inc.,

479 F.3d 1310 (11th Cir. 2007) ................................................................... 372Gulotta v. New Jersey Racing Comm’n, 2014 WL 4375668

(N.J. Super. A.D. 2014) ............................................................................... 347

HHabitat for Horses v. Salazar, 2011 WL 4343306 (S.D.N.Y. 2011) ................. 522Hahn v. Comm’r, T.C. Memo. 2007-75 (T.C. 2007) ......................................... 482Hall v. Klien, 1999 WL 682584 (Ohio Ct. App. 1999) ..................................... 416Hall v. Peter Pan Stables, 2000 WL 1594095 (Ohio Ct. App. 2000) ............... 414Hall v. Tucker, 863 N.E.2d 1064 (Ohio Ct. App. 2006) ...................................... 49Hamilton v. Thompson, 23 P.3d 114 (Colo. 2001) ............................................ 513Hanawalt v. Brown, 2016 WL 1068395 (Ky. 2016) ......................................... 527Hansen v. Dep’t of Revenue, 2014 WL 2195546 (Or. T.C. 2014) ..................... 151Hanson v. Bieloh, 2007 WL 1893315 (Minn. Ct. App. 2007) .......................... 266Hanson v. Northern J&B Enterprises, 2009 WL 234104

(Minn. Ct. App. 2009) ................................................................................. 260Harmer v. Polansky, 2015 Il. App. 2d 140813-U (Ill. App. Ct. 2015) .............. 141Harnish v. Liberty Farm Equine Reproduction Center, LLC,

2013 WL 3233243 (N.D. Ind. 2013), 2013 WL 440182 (N.D. Ind. 2013) ............................................................................................ 13

Harrah’s Bossier City Inv. Co. v. Bridges, 41 So. 3d 438 (La. 2010) ............... 480Harrington v. Comm’r, T.C. Summ. Op. 2002-58 (T.C. 2002) ......................... 160Harrison v. Great American Assur. Co., 227 S.W.3d 890 (Tex. App. 2007) ...........182Hartman v. New Jersey Racing Comm’n, 800 A.2d 279

(N.J. Super Ct. App. Div. 2002) .................................................................. 392Hastings v. Comm’r, T.C. Memo. 2002-310 (T.C. 2002).................................. 161Hatlee v. Olds, 665 F. App’x 695 (10th Cir. 2016) ......................................... 5, 90Haverstock v. Hoge, 2003 WL 1788787 (Cal Ct. App. 2003)........................... 512

550


Hawkins v. Peart, 37 P.3d 1062 (Utah 2001) .................................................... 289Hawkins v. Ranch Rudolph, Inc., 2005 WL 2372008

(Mich. Ct. App. 2005) ................................................................................. 274Hawthorne Race Course, Inc. v. Illinois Racing Bd., 4 N.E.3d 117

(Ill. Ct. App. 2013) ...................................................................................... 351Hawthorne Race Course, Inc. v. Illinois Racing Bd., 851 N.E.2d 214

(Ill. App. Ct. 2006) ...................................................................................... 200Hayes v. Henley, 84 So. 3d 60 (Ala. 2011) ....................................................... 307Heartland Jockey Club v. Ohio State Racing Comm’n, 739 N.E.2d 355

(Ohio Ct. App. 2000) ................................................................................... 201Hebert v. Louisiana State Racing Comm’n, 125 So.3d 609

(La. Ct. App. 2013) ..................................................................................... 351Hegarty v. Addison Co. Humane Soc’y, 848 A.2d 1139 (Vt. 2004) ............ 31, 104Heina v. La Chucua Paso Fino Horse Farm, Inc., 752 So. 2d 630

(Fla. Dist. Ct. App. 1999) ............................................................................ 471Hellen v. Hellen, 831 N.W.2d 430 (Wis. 2013) ................................................ 244Helmick v. Comm’r, T.C. Memo. 2009-220 (T.C. 2009) .................................. 481Helton v. Kincaid, 2005 WL 1324729 (Ohio Ct. App. 2005) ........................... 312Hengen v. Coyne, 2002 WL 31943392 (Conn. Super. Ct. 2002) ...................... 122Hennessey v. Dep’t of Business and Prof’l Regulation, 839 So. 2d 698

(Fla. 2003) ................................................................................................... 387Henrickson v. Grider, 70 N.E.3d 604 (Ohio Ct. App. 2016) ............................ 304Henry v. Zurich American Ins. Co., 107 So. 3d 874 (La. Ct. App. 2013) ......... 504Herbert v. Archdiocese of New Orleans, 739 So. 2d 928

(La. Ct. App. 1999) ..................................................................................... 175Hernandez v. Industrial Comm’n, 2008 WL 2410207 (Ariz. Ct. App. 2008) .........530Hialeah Racing Ass’n v. Dep’t of Business and Prof’l Regulation, Div.

of Pari-Mutuel Wagering, 907 So. 2d 1235 (Fla. Dist. Ct. App. 2005) ...... 379Hiawassee Stables, Inc. v. Cunningham, 519 S.E.2d 317

(N.C. Ct. App. 1999) ................................................................................... 514Hickey v. Riera, 774 N.E.2d 1 (Ill. App. Ct. 2001) ........................................... 395Hill Farms Ltd. Partnership v. Sugar, 2001 WL 506037

(Ohio Ct. App. 2001) ................................................................................... 123Hillman v. Comm’r, T.C. Memo. 1999-255 (T.C. 1999) ................................... 163Hill v. Harris, 1998 WL 960763 (Del. Super. Ct. 1998) ................................... 300Hill v. New Jersey Racing Comm’n, 2013 WL 1830841

(N.J. Super. App. Div. 2013) ....................................................................... 351Hilz v. Riedel, 2012 WL 2135648 (Tex. App. 2012) ......................................... 248Hinds County Bd. v. Leggette, 833 So. 2d 586 (Miss. Ct. App. 2002) .............. 221Hiscox Dedicated Corporate Member v. Wilson, 246 F. Supp. 2d 684

(E.D. Ky. 2003) ........................................................................................... 184Hochstetler v. Delaware Harness Racing Comm’n, 845 A.2d 511

(Del. Super. Ct. 2004) ................................................................................. 383

551

Table of Cases

Hoelscher v. Comm’r, T.C. Memo. 2013-236 (T.C. 2013) ............................... 153Hoffa v. Bimes, 954 A.2d 1241 (Pa. Super. 2008) ............................................. 508Holcomb v. Long, 765 S.E.2d 687(Ga. Ct. App. 2014) ..................................... 241Holton v. Indiana Horse Racing Comm’n, 2004 WL 1689390

(S.D. Ind. 2004) ................................................................................... 104, 383Hooser v. Ohio State Racing Comm’n, 2013 WL 5963105 (Ohio Ct.

App. 2013) ................................................................................................... 352Horseman’s Benevolent & Protective Ass’n v. Dewine, 666 F.3d 997

(6th Cir. 2012) ............................................................................................. 197H.O.R.S.E. of Connecticut v. Town of Washington, 783 A.2d 993

(Conn. 2001) ............................................................................................... 486Horstmann v. Farber, 944 So. 2d 628 (1st Cir. 2007) ........................................ 63Hourihan v. Town of Middletown, 723 A.2d 790 (R.I. 1998) ........................... 223Howard v. Comm’r, 2003 WL 22053843 (T.C. 2003) ...................................... 160Hubner v. Spring Valley Equestrian Center, 1 A.3d 618 (N.J. 2010) ............... 256Hudnall v. Comm’r, T.C. Memo. 1999-326 (T.C. 1999) ................................... 164Hudson v. Texas Racing Comm’n, 455 F.3d 697 (5th Cir. 2006) ...................... 375Hurwitz v. Strain, 773 N.E.2d 478 (Mass. App. Ct. 2002)................................ 411Hussey v. Seawell, 527 S.E.2d 90 (N.C. Ct. App. 2000) ................................... 293Hylton v. Comm’r, T.C. Memo. 2016-234 (T.C. 2016) ..................................... 150

IIllinois Ins. Guaranty Fund v. Santucci, 894 N.E.2d 801 (III. App. Ct. 2008) ........181In Defense of Animals v. Salazar, 713 F. Supp. 2d 20 (D.D.C. 2010) .............. 522In Defense of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054

(9th Cir. 2014) ............................................................................................. 520Indiana Horse Racing Comm’n v. Martin, 990 N.E.2d 498

(Ind. Ct. App. 2013) .................................................................................... 352Indianapolis Downs, LLC v. Indiana Horse Racing Comm’n,

827 N.E.2d 162 (Ind. Ct. App. 2005) .......................................................... 379In re 8 Horses and 22 Dogs, 297 S.W.3d 125 (Mo. Ct. App. 2009) ................... 23In re Bachman, 2007 WL 4355620 (Bankr. D. Idaho 2007) ............................... 55In re Backer, 2011 WL 3878338 (Bankr. E.D. Ky. 2011) ................................. 433In re Barnhart, 2010 WL 94573 (Bankr. M.D. Pa. 2010) ................................... 54In re Becker, 217 B.R. 231 (Bankr. M.D. Tenn. 1998) ....................................... 58In re Brehmer, 428 S.W.3d 920 (Tex. App. 2014) .............................................. 10In re Buchanan, 2006 WL 2090213 (M.D. Tenn. 2006) ..................................... 55In re Burger, 254 B.R. 692 (Bankr. S.D. Ohio 2000) ......................................... 57In re Calumet Farms, Inc., 46 F. App’x 300 (6th Cir. 2002) .............................. 56In re ClassicStar Mare Leasing Litigation, 2011 WL 3608456

(E.D. Ky. 2011), aff’d 727 F.3d 473 (6th Cir. 2013) ................................... 404In re Gallegos, 226 B.R. 111 (Bankr. D. Idaho 1998) ........................................ 58

552


In re Guadalupe, 2008 WL 4722607 (N.J. Super. Ct. App. Div. 2008) ............ 368In re Hamilton, 400 B.R. 696 (E.D. Ark. 2009) .................................................. 23In re Harmon, 2004 WL 2307011 (Ohio Ct. Cl. 2004) ..................................... 279In re Horton, 252 B.R. 245 (Bankr. S.D. Ga. 2000) ........................................... 57In re Hyland, 2013 WL 5979746 (Bankr. E.D. Tenn. 2013) ............................... 53In re Jones, 2011 WL 3320504 (Bankr. D. Or. 2011) ......................................... 54In re Laos (Nasch v. Laos), 513 B.R. 119 (Bankr. D. Az. 2014) ....................... 429In re Magna Entertainment Corp., 438 B.R. 380 (Bankr. D. Del. 2010) ......... 198In re McCoy, 269 B.R. 193 (Bankr. W.D. Tenn. 2001) ....................................... 57In re New York Off-Track Betting Corp., 427 B.R. 256

(Bankr. S.D.N.Y. 2010) ................................................................................. 54In re New York Off-Track Betting Corp., 434 B.R. 131

(Bankr. S.D.N.Y. 2010) ............................................................................... 362In re North Metro Harness, Inc., 711 N.W.2d 129 (Minn. Ct. App. 2006) ....... 375In re Poe, 2009 WL 2357160 (Bankr. N.D. W. Va. 2009) .................................. 54In re Racing Services, Inc., 482 B.R. 823 (B.A.P. 8th Cir. 2012) ....................... 53In re Shart (Haig v. Shart), 2014 WL 6480307 (B.A.P. 9th Cir. 2014) ............... 53In re Showtime Farms, Inc., 267 B.R. 541 (Bankr. E.D. Tex. 2000) .................. 58In re Siggins (Bates v. Siggins), 2014 WL 1796685

(Bankr. D.N.M. 2014) ........................................................................... 53, 429In re Stabile, 436 F. Supp. 2d 406 (E.D.N.Y. 2006)............................................ 81In re Sunflower Racing, Inc., 226 B.R. 673 (D. Kan. 1998) ............................... 59In re White, 363 B.R. 157 (Bankr. D. Idaho 2007) ............................................. 55Insurance Corp. of Hannover v. Polk, 262 S.W.3d 120 (Tex. App. 2008) ....... 181In the Matter of Black, 2010 WL 2994049 (Wash. Ct. App. 2010) .................. 435In the Matter of Consider Distribution of the Casino Simulcasting

Special Fund, 939 A.2d 230 (N.J. Super. Ct. App. Div. 2008) ................... 368In the Matter of License Application of El Deeb, 2015 WL 5197012

(Minn. Ct. App. 2015) ................................................................................. 343In the Matter of New Jersey Sports and Exposition Auth.,

2008 WL 2002006 (N.J. Super. Ct. App. Div. 2008) .................................. 199In the Matter of Reconsideration of the Distribution of the Casino

Simulcasting Special Fund, 2011 WL 2416910 (N.J. Super. Ct. App. Div. 2011).................................................................. 197

In the Matter of Tavalario, 901 A.2d 963 (N.J. Super. Ct. App. Div. 2006) ................................................................. 219

In the Matter of the Adoption of BJAC 13:70, 2011 WL 2162753 (N.J. Super. Ct. App. Div. 2011) .......................................................................... 359

In the Matter of the Application of NJSA, 2008 WL 3539944 (N.J. Super. Ct. App. Div. 2008) .......................................................................... 368

In the Matter of the Veto by Governor Chris Christie, 58 A.3d 735 (N.J. Super. Ct. App. Div. 2012) .......................................................................... 356

553

Table of Cases

Int’l Sporthorse Registry v. Oldenburger of America, 2000 WL 988525 (N.D. Ill. 2000) ...................................................................................... 69, 190

Ioan v. Koenig, 2011 WL 4444172 (Cal. Ct. App. 2011) .................................. 252Iron Horse Farms, Inc. v. Raylin Farms, Inc., 2017 WL 1316059

(Md. Ct. Spec. App. 2017) .......................................................................... 423

JJackson v. Arkansas Racing Comm’n, 34 S.W.3d 740 (Ark. 2001) .................. 395Jackson v. Frank, 2012 WL 6096905 (N.D. Cal. 2012) ..................................... 77Jackson v. Placer County, 2007 WL 1429827 (E.D. Cal. 2007) ................ 28, 102Jahn v. Equine Services, 233 F.3d 382 (6th Cir. 2000) ..................................... 514Jahn v. Great American Assur. Co., 2004 WL 765240 (N.D. Ill. 2004) ........... 183James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC,

941 F. Supp. 2d 807 (E.D. Ky. 2013), 2014 WL 2113096 (E.D. Ky. 2014); 2014 WL 2203893 (E.D. Ky. 2014) ................................................. 143

Jamgotchian v. Indiana Horse Racing Comm’n, 2017 WL 4168488 (S.D. Indiana 2017) ..................................................................................... 334

Jamgotchian v. Kentucky Horse Racing Comm’n, 2014 WL 495575 (Ky. Ct. App. 2014), aff’d, 488 S.W.3d 594 (Ky. 2016) ............................. 341

Jamgotchian v. Park Equine Hospital, PLLC, 2015 WL 4151381 (Ky. Ct. App. 2015) ....................................................................................... 75

Jamgotchian v. Slender, 89 Cal. Rptr. 3d 122 (Cal. Ct. App. 2009) ................. 364Jamgotchian v. State Horse Racing Comm’n, 269 F. Supp. 3d 604

(M.D. Pa. 2017) ..................................................................................... 88, 334Jarreau v. Quackenbush, 687 F. Supp. 2d 606 (M.D. La. 2010) ...................... 119Jefferson Downs Corp. v. Louisiana State Racing Comm’n,

727 So. 2d 644 (La. Ct. App. 1999) ............................................................ 202Jenkins v. State, 262 P.3d 552 (Wyo. 2011) ........................................................ 19Jerrel v. State, 1999 P.2d 138 (Alaska 2000) .................................................... 222JES Properties, Inc. v. USA Equestrian, Inc., 458 F.3d 1224

(11th Cir. 2006) ............................................................................................. 42Jester v. Hutt, 2017 WL 1150648 (M.D. Pa. 2017) .......................................... 141Jewell v. Backes, 2008 WL 4133865 (Minn. Ct. App. 2008) ............................ 262Jewett v. Hertrich, 2004 WL 1487105 (Ky. Ct. App. 2004) ..................... 183, 410Jewett v. Miller, 263 P.3d 188 (Kan. Ct. App. 2011) ........................................ 307JLG Enterprises, Inc. v. Excalibur Sires, Inc., 2011 WL 1103325

(E.D. Cal. 2011) .......................................................................................... 448Johnson v. Bd. of Stewards, 693 S.E.2d 93 (W. Va. 2010) ................................ 362Johnson v. Johnson, 898 N.E.2d 145 (III. App. Ct. 2008) ................................ 262Johnson v. Smith, 88 S.W.3d 729 (Tex. App. 2002) .......................................... 287Johnson v. Unique Vacations, Inc., 2012 WL 5869406 (11th Cir. 2012) .......... 248Jones v. St. Charles County, 181 S.W.3d 197 (Mo. Ct. App. 2006) ................. 311

554


Jordan v. Comm’r, T.C. Memo. 2000-206, 80 (T.C. 2000) ............................... 486Joseph v. New York Racing Ass’n, 28 A.D.3d 105 (N.Y. App. Div. 2006) ........ 270

KKanciper v. Lato, 2013 WL 5963080 (E.D.N.Y. 2013) ................................. 14, 94Kanciper v. Suffolk County Soc’y for the Prevention of Cruelty to

Animals, 722 F.23d 88 (2d Cir. 2013) ..................................................... 14, 94Kane v. Majoda Stables, 2016 WL 1723842

(N.J. Super. Ct. App. Div. 2016) ................................................................. 233Kangas v. Perry, 620 N.W.2d 429 (Wis. Ct. App. 2000) .................................. 293Kankey v. State, 2013 WL 458000 (Ark. Ct. App. 2013) .................................... 14Karlovich v. Nicholson, 1999 WL 960583 (Ohio Ct. App. 1999) ..................... 296Keating v. Comm’r, 544 F.3d 900 (8th Cir. 2008) ............................................ 158Keene v. Zoning Bd., 22 So. 3d 665 (Fla. Dist. Ct. App. 2009) ........................ 218Keller v. Case, 757 So. 2d 920 (La. Ct. App. 2000).......................................... 175Keller v. Merrick, 955 P.2d 876 (Wyo. 1998) ................................................... 316Kelton v. Hollis Ranch, LLC, 927 A.2d 1243 (N.H. 2007) ............................... 406Kennedy v. McCormick, 2012 WL 1919787 (D. Colo. 2012) ............................. 77Kenny v. Lesser, 281 A.D.2d. 853 (N.Y. App. Div. 2001)................................. 513Kentucky Off-Track Betting, Inc. v. McBurney, 993 S.W.2d 946 (Ky. 1999) ..........202Kernan v. Ocala Equine Hospital, 2005 WL 1172425 (M.D. Fla. 2005) ......... 511Kimmel v. Thomas, (Fayette Cir. Ct. Ky. 2002) ................................................ 211Kinara v. Jamaica Bay Riding Acad., 11 A.D.3d 588 (N.Y. App. Div. 2004) .........280King v. Jockey’s Guild, Inc., 2005 WL 1793730 (D.N.J. 2005) .......................... 81Kinley v. Bierly, 876 A.2d 419 (Pa. Super. Ct. 2005) ........................................ 274Kirkland v. Hall, 38 A.D.3d 497 (N.Y. App. Div. 2007) ................................... 266Kirkpatrick v. Hidden View Farm, 153 A.3d 216 (N.J. 2017) .......................... 230Klobnak v. Wildwood Hills Inc., 688 N.W.2d 799 (Iowa 2004) ........................ 312Kluener v. Comm’r, 154 F.3d 630 (6th Cir. 1998) ............................................ 487Klyashtony v. Black Brook Stables, LLC, 2011 WL 2694392

(N.J. Super. Ct. App. Div. 2011).................................................................. 252KNC Investments, LLC v. Lane’s End Stallions, Inc.,

2014 WL 4290159, and 2014 WL 4290184 (6th Cir 2014) ................ 144, 466Kolacki v. Verink, 893 N.E.2d 717 (III. App. Ct. 2008) .................................... 531Koleriter v. Jewell, 2013 WL 5718963 (D. Nev. 2013) .................................... 520Konan v. George, 2003 WL 22479619 (Mass. Super. Ct. 2003) ....................... 283Konan v. Sterling Suffolk Race Course, LLC, 824 N.E.2d 487 (Mass.

App. Ct. 2005) ............................................................................................. 275Kovnat v. Xanterra Parks and Resorts, 770 F.3d 949 (10th Cir. 2014) ............ 241Krieger v. Cogar, 83 A.D.3d 1552, 921 N.Y.S.2d 767

(N.Y. App. Div. 2011) .................................................................................. 252Kryzer v. Passow, 2000 WL 944812 (Minn. Ct. App. 2000) ............................ 293

555

Table of Cases

Kuberski v. Comm’r, T.C. Memo. 2002-200 (T.C. 2002) ................................. 161Kush v. Wentworth, 790 N.E.2d 912 (Ill. App. Ct. 2003) .................................. 284

LLachani v. Comm’r, 142 T.C. 151 (T.C. 2014) ................................................. 478Lacy v. USDA, 278 F. App’x 616 (6th Cir. 2008) ............................................... 26Ladner v. Jordan, 848 So. 2d 870 (Miss. Ct. App. 2002) ................................. 411Ladnier v. Hester, 98 So. 3d 1025 (Miss. 2012) ............................................... 307Lane-Lott v. White, 126 So. 3d 1016 (Miss. Ct. App. 2013) ............................. 405Lanes End Stallion, Inc. v. Andrews, 2010 WL 5146567

(E.D. Ky. 2010), 2011 WL 310237 (E.D. Ky. 2011) ........................... 433, 467LaPlace v. Briere, 962 A.2d 1139 (N.J. Super. App. Div. 2009)......................... 24Larson v. XYZ Insurance Co., 2016 WL 1165438 (La. Ct. App. 2016),

226 So. 3d 412 (La. 2017) ........................................................................... 230Laterza v. New York State Racing & Wagering Bd., 892 N.Y.S.2d 253

(N.Y. App. Div. 2009) ................................................................................. 365Lavenda v. Rodowick, 2006 WL 2474004 (Cal. Ct. App. 2006) ....................... 270Laxson v. Giddens, 48 S.W.3d 408 (Tex. App. 2001) ....................................... 413Leachman v. Hernandez, 2011 WL 2559837 (Mont. 2011) .......................... 19, 98Leal v. Holtvogt, 702 N.E.2d 1246 (Ohio Ct. App. 1998)......................... 417, 472LeCompte v. Zoning Bd. of Appeals, 958 N.E.2d 1065 (Ill. App. Ct. 2011) ............216Lecznar v. Sanford, 697 N.Y.S.2d 186 (N.Y. App. Div. 1999) .......................... 296Lee v. Walters, 433 F.3d 672 (9th Cir. 2005) ............................................. 103, 379Leier v. Purnell, 2004 WL 2830645 (Tex. App. 2004) ............................. 121, 441Leigh v. Jewell, 2014 WL 31675 (D. Nev. 2014) .............................................. 520Leigh v. Salazar, 2013 WL 4548235 (D. Nev. 2013) ........................................ 521Lemma v. Pennwood Racing, 2011 WL 2349820

(N.J. Super. Ct. App. Div. 2011).................................................................. 308Lessman v. Rhodes, 721 N.E.2d 178 (Ill. App. Ct. 1999) ................................. 296Levinson v. Owens, 98 Cal. Rptr. 3d 779 (Cal. Ct. App. 2009) ......................... 260Lewis v. New York Racing and Wagering Bd., 954 N.Y.S.2d 263

(N.Y. App. Div. 2012) ................................................................................. 356LHT Capital, LLC v. Indiana Horse Racing Comm’n, 891 N.E.2d 646,

upon rehearing 895 N.E.2d 124 (III. App. Ct. 2008) .................................. 368Lieberman v. Delaware Harness Racing Comm’n, 2004 WL 2830890

(Del. Super. Ct. 2004) ................................................................................. 384Linderman v. Nichols, 2015 WL 164872 (D. Or. 2015) ............................ 427, 465Lindsay v. Cave Creek Outfitter, LLC, 77 P.3d 47 (Ariz. Ct. App. 2003) .......... 284Liska v. Dep’t of Revenue, 2013 WL 821545 (Or. T.C., Magistrate Div. 2013) .......153Little v. Needham, 236 S.W.2d 328 (Tex. App. 2007) ....................................... 266Livingston Downs Racing Ass’n, Inc., v. Jefferson Downs Corp.,

259 F. Supp. 2d 471 (M.D. La. 2002) ........................................................... 43

556


Livingston v. Minnesota Racing Comm’n, 2004 WL 1445232 (Minn. Ct. App. 2004) ................................................................................. 384

LoCastro v. Cannery Casino Resorts, LLC, 2013 WL 1748347 (W.D. Pa. 2013) ..................................................................................... 94, 352

Lococo v. Kentucky Horse Racing Comm’n, 2016 WL 446668 (Ky. Ct. App. 2016) ............................................................................. 342, 503

Loftin v. Lee, 341 S.W.3d 352 (Tex. 2011) ........................................................ 252Loman v. Freeman, 890 N.E.2d 446 (III. 2008) ................................................ 508Lone Oak Racing, Inc. v. State, 986 P.2d 596 (Or. Ct. App. 1999) ................... 203Longino v. U.S. Dep’t of Agriculture, 912 F. Supp. 2d 424 (W.D. La. 2012)...........248Longo v. Bell South, 885 So. 2d 1270 (La. Ct. App. 2004) ............................... 312Lopez v. Cole, 155 P.3d 1060 (Az. Ct. App. 2007) ........................................... 266Lopez v. Midstates Horse Shows, Inc., 2009 WL 3337614

(Iowa Ct. App. 2009) ................................................................................... 530Lormand v. Louisiana State Racing Comm’n, 115 So. 3d 1271

(La. Ct. App. 2013) ..................................................................................... 353Loureiro v. Copeland, 2006 WL 2685582 (Del. Super. Ct. 2006) .................... 439L.S. v. Scarano, 2011 WL 4948099 (S.D. Ohio 2011) ...................................... 308Lucero v. Lujan, 2009 WL 619613 (Tex. App. 2009) ....................................... 436Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159

(Fla. Dist. Ct. App. 2017) ...................................................................... 49, 179Lui v. Barnhart, 987 P.2d 942 (Colo. Ct. App. 1999) ....................................... 316Lupi v. Home Creators, Inc., 696 N.Y.S.2d 291 (N.Y. App. Div. 1999) ........... 297Lykins v. State, 726 N.E.2d 1265 (Ind. Ct. App. 2000) ....................................... 34

MMacLean v. McCarroll, 2009 WL 1813971 (E.D. Tex. 2009), and

2009 WL 1940105 ....................................................................................... 507Mahan v. State, 51 P.3d 962 (Alaska Ct. App. 2002) .......................................... 32Mahnke v. Columbia County, 2007 WL 1300731 (Wisc. Ct. App. 2007) ........... 28Mahnke v. Garrigan, 2011 WL 1985550 (7th Cir. 2011) .............................. 19, 98Mallinckrodt v. Barnes, 272 A.D.2d 651 (N.Y. App. Div. 2000) ........................ 83Malloy v. Town of Colchester, 858 A.2d 813 (Conn. App. Ct. 2004) ............... 313Mancik v. Racing Comm’r, 600 N.W.2d. 423 (Mich. Ct. App. 1999) ............... 398Manula v. Wheat, 2007 WL 2926211 (E.D. Ark. 2007) .................................... 407March v. Kentucky Horse Racing Comm’n, 2015 WL 3429763

(Ky. Ct. App. 2015) ..................................................................................... 343Markovitz v. Cassenti, 90 Mass. App. Ct. 1102 (Mass. App. Ct. 2016) ............ 234Maroney v. New York Central Mutual Fire Ins. Co., 839 N.E.2d 886

(N.Y. 2005) .................................................................................................. 183Martin v. Gorajec, 2013 WL 319783 (S.D. Ind. 2013) ....................................... 14Maryland Racing Comm’n v. Belotti, 744 A.2d 558

(Md. Ct. Spec. App. 1999) .......................................................................... 398

557

Table of Cases

Maryland Racing Comm’n v. Cloverleaf Enterprises Inc., 738 A.2d 898 (Md. Ct. Spec. App. 1999) .......................................................................... 203

Mathis v. Comm’r, T.C. Memo. 2013-294 (T.C. 2013) ..................................... 153Matthies v. Killingworth Planning and Zoning Comm’n,

2010 WL 2681910 (Conn. Super. Ct. 2010) ................................................ 217Matus v. State, 2011 WL 1166383 (Tex. App. 2011) .......................................... 19Mawing v. PNGI Charles Town Gaming, LLC, 2014 WL 1689772

(N.D. W. Va. 2014) .................................................................................. 49, 76Mayhew v. Hermitage Club, 2016 WL 6997490 (D. Vt. 2016) ........................ 207Mayo v. Comm’r, 136 T.C. 81 (T.C. 2011) ........................................................ 480Mays v. Valley View Ranch, Inc., 730 S.E.2d 592 (Ga. Ct. App. 2012) ............ 249Mazella v. Fairfield Equine Assocs., P.C., 2005 WL 2452908

(S.D.N.Y. 2005) ................................................................................... 275, 511McClendon v. Story County Sheriff’s Office, 403 F.3d 510

(8th Cir. 2005) ....................................................................................... 30, 103McCloy v. USDA, 351 F.3d 447 (2003) ............................................................... 32McConnell v. USDA, 198 F. App’x 418 (6th Cir. 2006) ..................................... 29McCrann v. RIU Hotels SA, 2010 WL 5094396 (S.D.N.Y. 2010) .................... 256McCutcheon v. Workers’ Compensation Bd., 2003 WL 1851510

(Cal. Ct. App. 2003) .................................................................................... 532McDermott v. Carrie, LLC, 124 P.3d 168 (Mont. 2005) ................................... 275McGraw v. R and R Investments Ltd., 877 So. 2d 886

(Fla. Dist. Ct. App. 2004) ............................................................................ 280McGuire v. Hoblock, 25 A.D.3d 500 (N.Y. App. Div. 2006) .................... 376, 510McGuire v. Jewett, 2007 WL 1810529 (Ohio Ct. App. 2007) .......................... 267McGuire v. Sontag, 2009 WL 736188 (Ind. Ct. App. 2009) ............................. 449McKeever v. Comm’r, T.C. Memo. 2000-288 (T.C. 2000) ............................... 162McKenzie v. New York Jockey Injury Comp. Fund, 27 A.D.3d 1003

(N.Y. App. Div. 2006) ................................................................................. 532McMillan v. Comm’r, T.C. Memo. 2015-109 (T.C. 2015) ................................ 150McNichol v. South Florida Trotting Center, 44 So. 3d 253

(Fla. Dist. Ct. App. 2010) ............................................................................ 256McPeek v. Deputy Attorney General of New Jersey, 2008 WL 5273081

(N.J. Super. Ct. App. Div. 2008) ......................................................... 101, 369MEC Oregon Racing, Inc. v. Oregon Racing Comm’n, 225 P.3d 61

(Or. Ct. App. 2009) ...................................................................................... 365MEC Pennsylvania Racing, Inc. v. State Horse Racing Comm’n,

827 A.2d 580 (Pa. Commw. Ct. 2003) ........................................................ 388Medford v. Duggan, 732 A.2d 533 (N.J. Super. Ct. App. Div. 1999) ............... 297Medlin v. Morganstern, 601 S.E.2d 359 (Ga. Ct. App. 2004) ........................... 452Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745

(M.D. Pa. 2016) ........................................................................................... 234Messer v. Hi Country Stables Corp., 2013 WL 93183 (D. Colo. 2013) ........... 244Metz v. Comm’r, T.C. Memo. 2015-054 (T.C. 2015) ........................................ 477

558


Michael J. McCormick Farm, Inc. v. Swinderman, 2013 WL 2456374 (E.D. Tex. 2013) ............................................................................................ 76

Micklalich v. U.S., 2007 WL 1041202 (E.D. Mich. 2007) ................................ 267Millan v. Brown, 743 N.Y.S.2d 539 (N.Y. App. Div. 2002) .............................. 287Miller v. Blacktype Farms, 952 So. 2d 867 (La. Ct. App. 2007) ...................... 531Miller v. Comm’r, T.C. Memo. 2008-224 (T.C. 2008) ...................................... 482Miller v. Home Ranch Co., 2011 WL 1755539 (D. Colo. 2011) ....................... 253Miller v. State, 952 N.E.2d 292 (Ind. Ct. App. 2011) ......................................... 19Miller v. Weitzen, 35 Cal. Rptr. 3d 73 (Cal. Ct. App. 2005) .............................. 276Milner v. Colonial Trust Co., 6 P.3d 329 (Ariz. Ct. App. 2000) ....................... 415Minshall v. Hartman Equine Reproduction Center, 2017 WL 1495077

(E.D. Tex. 2017) .......................................................................................... 424Mirabella v. Saint Claire Livestock Investments, Inc.,

2009 WL 5197842 (S.D. Fla. 2009) ............................................................ 449Misko v. Backes, 2017 WL 3328123 (N.D. Tex. 2017) ..................................... 424Mitz v. Texas State Bd. of Veterinary Medical Examiners,

2008 WL 4899182 (Tex. App. 2008)........................................................... 509M & L of Delaware, Inc. v. Wallace, 2004 WL 2370708 (D. Del. 2004) ............ 82Molnar v. Comm’r, 2010 WL 4181342 (Minn. Tax Ct. 2010) .......................... 157Montagne v. Comm’r, 166 F. App’x 265 (8th Cir. 2006) .................................. 158Montgomery v. Lester, 201 So. 3d 966 (La. Ct. App. 2016) ............................. 171Moody v. Michigan Gaming Control Bd., 2013 WL 791628,

2013 WL 6196947 (E.D. Mich. 2013), remanded, 790 F.3d 669 (6th Cir. 2015), after remand, rev’d in part, 871 F.3d 420 (6th Cir. 2017) ....................................................................................... 88, 335

Moore v. 3 Phase Equestrian Center, Inc., 83 A.D.3d 677 (N.Y. App. Div. 2011) .................................................................................. 253

Moore v. Landes, 2006 WL 2919064 (Ky. Ct. App. 2006) ............................... 408Moore v. Roper, 2018 WL 1123868 (E.D. Okla. 2018) .................... 117, 403, 423Moran v. City of New Rochelle, 346 F. Supp. 2d 507 (S.D.N.Y. 2004) ...........105, 220Moreland v. Weaver Leather Goods Inc.,13 F. App’x 329 (6th Cir. 2001) ..............321Morella v. Fletcher Farm, 288 A.D.2d 447 (N.Y. App. Div. 2001) .................. 290Moreno v. Penn Nat’l Gaming Inc., 904 F. Supp. 2d 414

(M.D. Pa. 2012) ..................................................................................... 96, 356Morgan v. Parra, 2013 WL 1500467 (N.J. Super. A.D. 2013) ......................... 431Morgan v. Wyant, 2000 WL 246603( E.D. Mich. 2000) ................................... 396Morningstar v. Hallett, 858 A.2d 125 (Pa. Super. Ct. 2004)............................. 410Morrissey v. Arlington Park Racecourse, LLC, 935 N.E.2d 644

(Ill. App. Ct. 2010) ...................................................................................... 257Moser v. Pennsylvania Soc’y for the Prevention of Cruelty to Animals,

2012 WL 4932046 (E.D. Pa. 2012) ......................................................... 16, 96Motion v. Kentucky Horse Racing Comm’n,

(Franklin Circuit Ct. Ky. 16-CI-1195 Aug 18, 2017) .................................. 336

559

Table of Cases

Mott Thoroughbred Stables, Inc. v. Rodriguez, 87 F. Supp. 237 (D.D.C. 2015) .............................................................................................. 207

Mullins v. California Horse Racing Bd., 2014 WL 1046104 (Cal. Ct. App. 2014) .............................................................................. 93, 347

Mumaw v. Thistledown Racetrack LLC, 2015 WL 5437747 (N.D. Ohio 2015), 2017 WL 4348998 (N.D. Ohio 2017) ............. 73, 127, 337

Munns v. Swift Transportation Co., 58 P.3d 92 (Idaho 2002) ........................... 314Munoz v. Industrial Comm’n, 318 P.3d 439 (Az. Ct. App. 2014) ..................... 527Murphy v. Comm’r, 2006 WL 3257400 (T.C. 2006) ......................................... 484Murphy v. NYRA, 76 F. Supp. 2d 489 (S.D.N.Y. 1999) .................................... 109Murrell v. Hooter, 892 So. 2d 680 (La. Ct. App. 2004) .................................... 174Muzyka v. Texas, 2016 WL 552482 (Tex. App. 2016) .......................................... 5

NNacherilla v. Prospect Park Alliance, Inc., 88 A.D.3d 770

(N.Y. App. Div. 2011) .................................................................................. 254Nadeau v. La Pointe, 272 A.D.2d 769 (N.Y. App. Div. 2000) ............................ 34Nat’l Union Fire Ins. Co. v. Liberty Nat’l Bancorp, Inc.,

1998 WL 773673 (6th Cir. 1998) ................................................................ 186Nebraska v. Jensen, 2015 WL 7261420 (Nebr. Ct. App. 2015) ............................ 8Nelson v. Ladbroke Racing Corp., 2005 WL 995554

(Cal. Ct. App. 2005) .................................................................................... 276Never Tell Farm, LLC v. Airdrie Stud, Inc., 123 F. App’x 194 (6th Cir. 2005)........469New England Horsemen’s Benevolent and Protective Ass’n v.

Rockingham Ventures, Inc., 1999 WL 350653 (D. Mass. 1999) ........... 84, 203New Jersey Thoroughbred Horsemen’s Ass’n v. Alpen House U.L.C.,

942 F. Supp. 2d 497(D.N.J. 2013) ............................................................... 171New Jersey Thoroughbred Horsemen’s Ass’n v. New Jersey Racing

Comm’n, 2009 WL 815440 (N.J. Sup. Ct. App. Div. 2009) ....................... 365Newton v. North American Specialty Ins. Co., 2010 WL 3825459

(E.D. Ky. 2010) ........................................................................................... 180New York Racing Ass’n v. Hoblock, 704 N.Y.S.2d 52 (N.Y. App. Div. 2000) .........202New York Racing Ass’n v. Nassau Regional Off-Track Betting Corp.,

909 N.Y.S.2d 866 (N.Y. Sup. Ct. 2010) ...................................................... 198New York Racing Ass’n v. New York Racing and Wagering Bd.,

863 N.Y.S.2d 540 (N.Y. Sup. Ct. 2008) ...................................................... 369Nielson v. AT&T Corp., 597 N.W.2d 434 (S.D. 1999) ...................................... 297Nigro v. New York Racing Ass’n, 939 N.Y.S.2d 565 (N.Y. App. Div. 2012) ...........249Noble v. Office of the Racing Comm’r, 2010 WL 3928708

(Mich. Ct. App. 2010) ................................................................................. 362Noel v. Johnson, 2000 WL 1335304 (Wash. Ct. App. 2000) ............................ 470Nokota Horse Conservancy, Inc. v. Bernhardt, 666 F. Supp. 2d 1073

(D.N.D. 2009) ....................................................................................... 68, 189

560


North American Specialty Ins. Co. v. Pucek, 2012 WL 2308707 (E.D. Ky. 2012), 2013 WL 888602 (6th Cir. 2013) .................................... 179

Northville Downs v. Granholm, 622 F.3d 579 (6th Cir. 2010) .................... 99, 363Novak v. Comm’r, T.C. Memo. 2000-234 (T.C. 2000)...................................... 163NYRA v. New York City Off-Track Betting Corp., 836 N.Y.S.2d 487

(N.Y. App. Div. 2007) ................................................................................. 200

OOcala Breeders’ Sales Co. v. Florida Gaming Centers, Inc.,

793 So. 2d 899 (Fla. 2001) .......................................................................... 201Ochoa v. Dep’t of Labor, 20 P.3d 939 (Wash. Ct. App. 2001) .......................... 533O’Hara v. Holiday Farm, 147 A.D.3d 1454 (N.Y. App. Div. 2017) ................. 303Ohio Harness Horsemen’s Ass’n v. Northfield Park Ass’n,

2017 WL 6374089, ___ F.3d ___ (S.D. Ohio 2017) ................................... 338Ohio v. Payne, 2000 WL 1902205 (Ohio Ct. App. 2000) ................................... 34Oklahoma Quarter Horse Racing Ass’n v. Remington Park, Inc.,

987 P.2d 1216 (Okla. Civ. App. 1999) ........................................................ 399Olearnick v. Smith, 2006 WL 2089175 (Conn. Super. Ct. 2006) ...................... 311Olympic Dreams, LLC v. Clark, 2014 WL 4267499 (D. Conn. 2014) .............. 430O’Marrow v. Roles, 2013 WL 3752995 (Del. Ch. 2013) .................................. 215OPM-USA-Inc. v. County of Marion, 1999 WL 1427699 (M.D. Fla. 1999) ...........222Oregon v. Voyles, 382 P.3d 583 (Or. Ct. App. 2016) ............................................. 5

PPachero v. Federacion Ecuestre, De P.R. 34 F. Supp. 2d 101 (D. P.R. 1999) ......... 110Packer v. Indiana Dep’t of Workforce Dev., 995 N.E.2d 680 (Ind. Ct.

App. 2013) ........................................................................................... 180, 207Painter v. Ellerly, 2012 WL 2092376 (Cal. Ct. App. 2012)................................ 17Palmer v. Bd. of Equalization, 957 P.2d 348 (Colo. Ct. App. 1998) ................. 487Panetta v. Crowley, 460 F.3d 388 (2d Cir. 2006) ........................................ 29, 102Papa v. Ruso, 279 A.D.2d 744 (N.Y. App. Div. 2001) ...................................... 290Pappas v. Hurst, 2014 WL 5798305 (Ill. App. Ct. 2014) ................................. 430Pardue v. Perdue Farms Inc., 925 N.E.2d 482 (Ind. Ct. App. 2010) ................ 217Parish v. Highland Park Baptist Church, 2011 WL 4928739

(Tenn. Workers’ Comp. Panel 2011) ........................................................... 529Park-Childs v. Mrotek’s, Inc., 578 N.W.2d 210 (Wis. Ct. App. 1998) .............. 300Park Equine Hospital v. Braugh, 2013 WL 2406093 (E.D. Ky. 2013) ............... 77Parker v. Parker, 195 P.3d 428 (Or. Ct. App. 2008) ......................................... 172Park v. Eckhart, 948 N.E.2d 871 (Ind. Ct. App. 2011) ..................................... 254Patin v. Munster, 760 So. 2d 447 (La. Ct. App. 2000)...................................... 397Peck v. Verdi Trails West, Inc., 2013 WL 4520032 (Cal. Ct. App. 2013) ......... 245

561

Table of Cases

Pederson v. Comm’r, T.C. Memo. 2013-54 (T.C. 2013) ................................... 153Pederson v. New York State Racing and Wagering Bd., 46 A.D.3d 1072

(N.Y. App. Div. 2007) ................................................................................. 372Pellegrini v. State Harness Racing Comm’n, 922 A.2d 33

(Pa. Commw. Ct. 2007) ............................................................................... 372Pena v. New Meadowlands Racetrack, LLC, 2012 WL 95344

(D.N.J. 2012) ......................................................................................... 97, 357Pena v. New York State Gaming Comm’n, 40 N.Y.S.3d 665

(N.Y. App. Div. 2016) ................................................................................. 342Pennington v. AT&T, 202 F. App’x 880 (6th Cir. 2006) ................................... 312Pennington v. Penner, 207 F. Supp. 2d 1225 (D. Kansas 2002) ................. 32, 107Pennsylvania Division HBPA v. Mountainview Thoroughbred Racing

Ass’n, 855 A.2d. 957 (Pa. Commw. Ct. 2004) ............................................ 384Pennsylvania Nat’l Turf Club v. State Horse Racing Comm’n,

821 A.2d 676 (Pa. Commw. Ct. 2003) ........................................................ 201Pennsylvanians Against Gambling Expansion Fund, Inc. v. Com., 877

A.2d 383 (Pa. 2005) .................................................................................... 379Penunuri v. Sundance Partners, Ltd., 301 P.3d 984 (Utah 2013),

on remand, 380 P.3d 3 (Utah Ct. App. 2016), cert., ___ P.3d ___, 2017 WL 3697701 (Utah 2017) .................................................................. 231

Peoples v. Tuck, 2016 WL 6081423 (N.C. Ct. App. 2016), on remand, 2017 WL 4126959 (N.C. Ct. App. 2017) .................................................... 303

People v. Adcock, 2014 WL 3845047 (Ill. App. Ct. 2014) .................................. 10People v. Cleaves, 2012 WL 2136171 (Cal. Ct. App. 2012) ............................... 17People v. Fennel, 677 N.W.2d 66 (Mich. Ct. App. 2004) ................................... 31People v. Harris, 405 P.3d 361 (Colo. App. 2016) ............................................... 6People v. Henderson, 765 N.W.2d 619 (Mich. Ct. App. 2009) ........................... 24People v. Koy, 13 N.E.3d 1260 (Ill. App. Ct. 2014)............................................ 10People v. Kriple, 2011 WL 3759926 (Cal. Ct. App. 2011) ................................. 20People v. Lee, 41 N.E.3d 994 (Il. App. Ct. 2015) ................................................. 9People v. Lohnes, 976 N.Y.S.2d 719 (N.Y. App. Div. 2013) ............................... 14People v. Lueth, 660 N.W.2d 322 (Mich. Ct. App. 2002) ................................. 392People v. Mitchell, 2008 WL 4927324 (Mich. Ct. App. 2008) ........................... 27People v. Peters, 911 N.Y.S.2d 719 (N.Y. App. Div. 2010) ................................ 21People v. Proehl, 2011 WL 2021940 (Mich. Ct. App. 2011) .............................. 20People v. Slater, 2016 Il. App. 2d 140343-U (Ill. App. Ct. 2016) ........................ 6People v. Wilson, 2018 WL 1078593 (Cal. Ct. App. 2018) .................................. 3Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004) ......................................... 105, 385Perkinson v. Courson, ___ N.E.3d ___, 2018 WL 1250643

(Ill. App. Ct. 2018) ...................................................................................... 228Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933 (Ind. 2010) ............. 257Person v. Bowman, 2013 WL 663726 (Wash. Ct. App. 2013) .......................... 245Peterson v. Eichhorn, 189 P.3d 615 (Mont. 2008) ............................................ 263

562


Petrosian v. Conner, 2004 WL 837997 (Cal. Ct. App. 2004) ........................... 511Pharis v. State, 2014 WL 2740367 (Tex. App. 2014) ......................................... 11Phemister v. Comm’r, T.C. Memo. 2009-201 (T.C. 2009)................................ 157Phillips v. Baus, 2007 WL 1976219 (Conn. Super. Ct. 2007) .......................... 509Phillips v. North Carolina State University, 697 S.E.2d 433

(N.C. Ct. App. 2010) ..................................................................................... 22Pickens v. Paulson, 2007 WL 4224400 (E.D. Ky. 2007) .................................. 438Pierce v. Texas Racing Comm’n, 212 S.W.3d 745 (Tex. App. 2006) ................ 376Pillow v. Entergy Corp., 828 So. 2d 83 (La. Ct. App. 2002) ............................ 174Pinero v. Pennsylvania State Horse Racing Comm’n, 804 A.2d 131

(Pa. Commw. Ct. 2002) ............................................................................... 393Pinot v. Revere-Saugus Riding Academy, Inc., 907 N.E.2d 259

(Mass. App. Ct. 2009) ................................................................................. 260Pivnick v. White, Getgey & Meyer Co., 552 F.3d 479 (6th Cir. 2009) ............. 449Pletcher v. NYRA, 35 A.D.3d 920 (N.Y. App. Div. 2006) ................................. 377PNGI Charles Town Gaming, LLC v. Reynolds, 727 S.E.2d 799

(W. Va. 2011) ............................................................................................... 359PNGI Charles Town Gaming, LLC v. West Virginia Racing Comm’n,

765 S.E.2d 241 (W. Va. 2014) ..................................................................... 347Pointon v. State, 2011 WL 6260863 (Tex. App. 2011) ....................................... 20Polansky v. Anderson, 2007 WL 4162807 (N.D. Ill. 2007) .............................. 407Polechek v. Schina, 2010 WL 5419072 (N.J. Super. Ct. App. Div. 2010) ........ 257Posey v. Mollohan, 2008 WL 747890 (Ala. Civ. App. 2008) ........................... 450Powers v. Mukpo, 2000 WL 33170940 (Mass. Super. Ct. 2000) ...................... 294P’Pool v. Indiana Horse Racing Comm’n, 916 N.E.2d 668

(Ind. Ct. App. 2009) .................................................................................... 365Prejean v. State Farm Mut. Auto. Ins. Co., 183 So. 3d 823

(La. Ct. App. 2016) ..................................................................................... 304Price v. Comm’r, T.C. Memo. 2014-253 (T.C. 2014) ....................................... 151Priebe v. Kolmeier, 1999 WL 190753 (Tex. App. 1999) .................................... 84Provanzano v. Parker View Farm, Inc., 827 F. Supp. 2d 53

(D. Mass. 2011) ............................................................................................. 78Pruitt v. Box, 984 S.W.2d 709 (Tex. App. 1998) ............................................... 515Pugliese v. Mondello, 57 A.D.3d 637, 871 N.Y.S.2d 174

(N.Y. App. Div. 2008) ......................................................................... 437, 469Pullan v. Steinmetz, 16 P.3d 1245 (Vt. 2000) .................................................... 294

QQuigley v. McClellan, 2013 WL 941574 (Cal. Ct. App. 2013) ......................... 504Quintanilla v. Thomas School of Horsemanship, 11 N.Y.S.3d 241

(N.Y. App. Div. 2015) ................................................................................. 237

563

Table of Cases

RR & R Capital, LLC v. Merritt, 2009 WL 1089559, 2009 WL 1653097,

2009 WL 1812797, 2009 WL 1971389 (E.D. Pa. 2009), 2011 WL 1668981 (3d Cir. 2011)........................................................ 434, 467

Raceway Park, Inc. v. Ohio State Racing Comm’n, 1998 WL 769792 (Ohio Ct. App. 1998) ................................................................................... 204

Raceway Park, Inc. v. Ohio State Racing Comm’n, N.E.2d 1205 (Ohio Ct. App. 2002) ................................................................................... 485

Raceway Park, Inc. v. State of Ohio, 356 F.3d 677 (6th Cir. 2004) .................. 200Racing Ass’n of Central Iowa v. Fitzgerald, 648 N.W.2d 555

(Iowa 2002) cert. granted 123 S. Ct. 963 (2003), 539 U.S. 103 (2003) .................................................................................... 388

Racing Investment Fund 2000, LLC v. Clay Ward Agency, Inc., 320 S.W.3d 654 (Ky. 2010) ................................................................. 435, 468

Ramsey v. Lambert, 2009 WL 2408413 (Ky. Ct. App. 2009) ........................... 507Randazzo v. McCarthy, 2005 WL 2361588 (Conn. Super. Ct. 2005) ............... 409Ranier v. Kiger Ins., Inc., 998 S.W.2d 515 (Ky. Ct. App. 1999) ....................... 471Raudat v. Leary, 868 A.2d 120 (Conn. App. Ct. 2005) ..................................... 409Reams v. Irvin, 561 F.3d 1258 (Ga. Ct. App. 2009) .................................... 24, 100Reardon v. Windswept Farm, LLC, 905 A.2d 1156 (Conn. 2006) .................... 270Red Arrow Stables, Ltd. v. Valesquez, 725 N.E.2d 110

(Ind. Ct. App. 2000) ............................................................................ 294, 462Redmond v. The Jockey Club, 244 F. App’x 663 (6th Cir. 2007) ...................... 373Reed v. Vickery, 2009 WL 3276648 (S.D. Ohio 2009) ..................................... 508Register v. Louisiana State Racing Comm’n, 779 So. 2d 93

(La. Ct. App. 2001) ..................................................................................... 396Reid v. Sweetwater Campground, 2010 WL 4273092 (La. Ct. App. 2010) .............181Reilly v. Leasure, 2011 WL 2436667, 2011 WL 3427213

(Conn. Super. Ct. 2011) ............................................................................... 254Reimer v. Comm’r, T.C. Summ. Op. 2002-26 (T.C. 2002) ............................... 162Reimund v. Guthrie, 2008 WL 442606 (Cal. Ct. App. 2008) ............................ 263Reinhart v. Rising Star Ranch, LLC, 2010 WL 3219497

(Tenn. Ct. App. 2010) .................................................................................. 499Rhames v. Esparza, 2011 WL 5028038 (N.M. App. 2011) ............................... 435Richie and Pat Bonvie Stables, Inc. v. Irving, 796 A.2d 899

(N.J. Super. Ct. App. Div. 2002) ................................................................. 412Rinehart v. Yeager, T.C. Memo. 2002-9 (T.C. 2002) ........................................ 485Ritter v. Hill ‘N’ Dale Farm Inc., 231 F.3d 1039 (7th Cir. 2000) ..................... 208Rivera v. R.P. Gordon, Inc., 2004 WL 1109153 (Mich. Ct. App. 2004) ........... 280Robbins v. Racetrack Training Ctr., Inc., 833 So. 2d 306

(Fla. Dist. Ct. App. 2003) ............................................................................ 221Robertson v. Ohio State Racing Comm’n, 2004 WL 63618

(Ohio Ct. App. 2004) ................................................................................... 385

564


Robertson v. Tennessee Walking Horse Breeders’ and Exhibitors Ass’n, 1998 WL 382192 (Tenn. Ct. App. 1998) ............................................. 129, 326

Roberts v. Comm’r, 830 F.3d 247 (7th Cir. 2016) ............................................. 150Rock Springs Grazing Ass’n v. Salazar, 935 F. Supp. 2d 1179

(D. Wyo. 2013) ............................................................................................ 521Rocky Mountain Greyhound Park, Inc. v. Wembley, PLC, 992 P.2d 711

(Colo. Ct. App. 1999) .................................................................................. 203Rocky River Farms, Inc. v. Porter, 925 N.E.2d 496 (Ind. Ct. App. 2010) ........ 529Rodriguez v. Comm’r, 2013 WL 5272771 (T.C. 2013) ..................................... 154Rodriguez v. Gauger, 2005 WL 1123635 (Mich. Ct. App. 2005) ..................... 276Rodrock v. Gumz, 2012 WL 1424501 (W.D. Ky. 2012) .................................... 145Roe v. Keane Stud Farm, 690 N.Y.S.2d 336 (N.Y. App. Div. 1999) ................. 297Rojas v. Pennsylvania State Horse Racing Comm’n, 2018 WL 1102584

(Pa. Comm. 2018) ....................................................................................... 333Romanowski v. Comm’r, T.C. Memo. 2013-55 (T.C. 2013) ..................... 154, 479Rosenfeld v. Zoning Bd. of Appeals, 940 N.E.2d 891 (Mass. App. Ct. 2011) ..........216Rosenthal v. Texas, 2000 WL 34414977 (Tex. App. 2000) .................................. 34Rose v. Triple Crown Nutrition Inc., 2007 WL 707348 (M.D. Pa. 2007) ......... 189Ross v. Schwegel, 780 N.E.2d 287 (Ohio Ct. App. 2002) ................................. 287Rothing v. Kallestad, 159 P.3d 222 (Mont. 2007) ............................................. 173Roth v. Com., 2017 WL 4570565 (Ky. Ct. App. 2017) ......................................... 4Routon v. Comm’r, T.C. Memo. 2002-72 (T.C. 2002) ...................................... 485Rowland v. Scarborough Farms, LLC, 648 S.E.2d 151 (Ga. Ct. App. 2007) ..........438Rudolph v. Golick, 2010 WL 4183685 (Me. 2010) ........................................... 217Ruffu v. Haney, 2011 WL 359697 (Cal. Ct. App. 2011) .................................... 118Russell Equestrian Center, Inc. v. Miller, 406 S.W.3d 243 (Tex. App. 2013) .........306Russell v. Lawrence, 507 S.E.2d 161 (Ga. Ct. App. 1998) ................................ 418Rutecki v. CSX Hotels, Inc., 290 F. App’x 537 (4th Cir. 2008) ......................... 263Rutkai v. Freeland, 2008 WL 5159030 (Ohio Ct. App. 2008) .......................... 264Ryan v. Comm’r, 2005 WL 2077752 (T.C. 2005) ............................................. 159Ryan v. New Jersey Racing Comm’n, 764 A.2d 486

(N.J. Super. Ct. App. Div. 2001) ................................................................. 396Ryberg v. Comm’r, T.C. Summ. Op. 2012-24 (T.C. 2012)................................ 155

SSaccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. 2003) ............. 284Sachs v. New York State Racing and Wagering Bd., 1 A.D.3d 768

(N.Y. App. Div 2003) .......................................................................... 388, 512Saffran v. Fairfield Equine Associates, PC, 2008 WL 4044682

(Conn. Super. Ct. 2008) ................................................................................. 27Salazar v. Riverdale Riding Corp., 701 N.Y.S.2d 878 (N.Y. App. Div. 1999) .........298Sanders-Castro v. Comm’r, 2006 WL 2848127 (T.C. 2006) ............................ 159

565

Table of Cases

Sanders v. Anderson Victory Training Center, LLC, 2009 WL 3486772 (Ky. Ct. App. 2009) ..................................................................................... 450

Sanders v. Comm’r, T.C. Memo. 1999-208 (T.C. 1999) ................................... 164Sanders v. Frank, 37 N.E.3d 1305 (Ohio Ct. App. 2015) ................................. 237Santa Escolastica, Inc. v. Pavlosky, 823 F. Supp. 2d 649 (E.D. Ky. 2011) ...... 435Santos v. Knight-Ridder, Inc., 967 So. 2d 408 (Fla. Dist. Ct. App. 2007)......... 373Sapone v. Grand Targhee, Inc., 308 F.3d 1096 (10th Cir. 2002) ...................... 288Sawczysyn v. Coyne, 2016 WL 2935471 (Conn. Super. Ct. 2016).................... 234SCF, Inc. v. Florida Thoroughbred Breeders’ Ass’n, Inc.,

223 So. 3d 459, 227 So. 3d 770 (Fla. Dist. Ct. App. 2017) ........................ 338Schmuecker v. Comm’r, T.C. Summ. Op. 2009-32 (T.C. 2009)........................ 481Schoenholz v. Hinzman, 289 P.3d 1155 (Kan. 2012); 333 P.3d 2014

(Kan. Ct. App. 2014) ................................................................................... 445Schulz v. Genregske, 2013 WL 136230 (E.D. Mich. 2013) .......................... 15, 94Schwartz v. Armand Erpf Estate, 688 N.Y.S.2d 55 (N.Y. App. Div. 1999) ....... 298Schysm v. Boyd, 2010 WL 3213679 (La. Ct. App. 2010).................................. 309Sciacca v. Hoblock, 44 A.D.3d 425, 843 N.Y.S.2d 585 (N.Y. App. Div. 2007) ......373Sclafani v. Spitzer, 2010 WL 3386022 (E.D.N.Y. 2010) ............................. 99, 363Scott v. New York State Racing and Wagering Bd., 44 A.D.3d 338

(N.Y. App. Div. 2007) ................................................................................. 374Sepulski v. McGowan, 2012 WL 424983 (Ky. Ct. App. 2012) ......................... 499Severino v. Freedom Woods, Inc., 2010 WL 4290503 (Ill. App. Ct. 2010) .............257Seward County v. Navarro, 133 P.3d 1283 (Kan. Ct. App. 2006) ..................... 219Sheffield v. Darby, 535 S.E.2d 776 (Ga. Ct. App. 2000) ................................... 415Shellbird, Inc. v. Grossman, 2010 WL 2985208 and 2010 WL 5418886

(S.D. Ind. 2010) ........................................................................................... 120Shellbird, Inc. v. Grossman, No. 09-cv-01271 (S.D. Ind. 2012) ....................... 432Shelly v. Stepp, 73 Cal. Rptr. 2d 323 (Cal. Ct. App. 1998) ............................... 300Shields v. International Resort Properties Ltd., 2012 WL 586900

(3d Cir. 2012) .............................................................................................. 249Sholberg v. Truman, 852 N.W.2d59, 2014 WL 2595633 (Mich. 2014) ............ 305Show, Inc. v. U.S. Sec’y of Agriculture, 2012 WL 2796568 (N.D. Tex. 2012) .......... 17Shroyer v. Klein, 2006 WL 1328859 (Mich. Ct. App. 2006) ............................ 167Sickel v. State, 636 P.3d 115 (Alaska Ct. App. 2015) ............................................ 9Siebenaler v. Curtis, 2008 WL 1744797 (D. Vt. 2008) .............................. 80, 128Siebert v. Severino, 256 F.3d 648 (7th Cir. 2001) ....................................... 33, 108Silberman v. Maxfield, 238 F.3d 430 (9th Cir. 2000) ........................................ 453Sill v. Burlington North Railroad, 87 S.W.3d 386 (Mo. Ct. App. 2002) ........... 314Silver v. State, 23 A.3d 867 (Md. 2011) .............................................................. 20Simon v. Taylor, 252 F. Supp. 3d 1196 (D.N.M. 2017) ..................................... 338Simpson v. Baronne Veterinary Clinic, 803 F. Supp. 2d 602 (S.D. Tex 2011) .........506Simpson v. Widger, 709 A.2d 1366 (N.J. Super. Ct. App. Div. 1998)................ 419

566


Sioux Breeders, LLC v. GeoStar Financial Services Corp., 2009 WL 185724 (E.D. Mich. 2009) .......................................................... 121

Skywak v. California Horse Racing Bd., 2013 WL 6685789 (Cal. Ct. App. 2013) .................................................................................... 353

Slabaugh v. Kukta, 2005 WL 3303986 (Ohio Ct. App. 2005) .......................... 277Slack v. Cropper, 757 N.E.2d 404 (Ohio Ct. App. 2001) ............................................ 63Slowey v. Midland Acres, Inc., 2008 WL 2486565 (Ohio Ct. App. 2008) ........ 173Smith v. CIR, 94 T.C. Memo. 2007-368 (T.C. 2007)......................................... 158Smith v. Comm’r, 182 F.3d 927 (9th Cir. 1999) ................................................ 164Smith v. Hunting View Farm, 695 N.Y.S.2d 802 (N.Y. App. Div. 1999) .......... 298Smith v. Jackson, 2017 WL 1047033 (S.D. Fl. 2017) ....................................... 424Smith v. Landfair, 2014 WL 3756139 (Ohio 2014) .......................................... 242Smith v. Lane, 832 N.E.2d 947 (Ill. App. Ct. 2005) .......................................... 277Smith v. Phillips, 2010 WL 1221436 (Tenn. Ct. App. 2010) ............................ 258Smith v. Pohl, 2014 WL 4825167 (W.D. Okl. 2014) ........................................ 430Smith v. Roussel, 809 So. 2d 159 (La. Ct. App. 2001) ...................................... 290Smith v. Veterinary Medical Examining Bd., 27 P.3d 1081

(Or. Ct. App. 2001) ...................................................................................... 513Soloman v. Taylor, 937 N.Y.S.2d 408 (N.Y. App. Div. 2012) ........................... 249Southern Bluegrass Racing, LLC v. Kentucky Horse Racing Auth.,

136 S.W.3d 49 (Ky. Ct. App. 2004) ............................................................ 386Spayd v. Olde Stone Ranch Co., 2009 WL 1138048 (Az. Ct. App. 2009) ........ 121Spencer v. Placer Co. Animal Control, 2003 WL 1562600

(Cal. Ct. App. 2003) .............................................................................. 32, 106Standard v. Cameron, 2017 WL 5466718 (E.D. Cal. 2017) ............... 74, 403, 425Stanislav v. Papp, 2009 WL 2929772 (N.Y. Sup. Ct. 2009), aff’d

911 N.Y.S.2d 60 (N.Y. App. Div. 2010) ...................................................... 310State Auto. Mut. Ins. Co. v. Dolosich, 735 N.E.2d 38 (Ohio Ct. App. 1999) ..........298State ex rel. Chadwell v. Ohio State Racing Comm’n, 2005 WL 590708

(Ohio Ct. App. 2005) ................................................................................... 380State ex rel. Loontjer v. Gale, 853 N.W.2d 494 (Neb. 2014) ............................ 348State v. Almendarez, 301 S.W.3d 886 2009 (Tex. App. 2009) ............................ 25State v. Beaudet, 326 P.3d 1101 (Mont. 2014) .................................................... 11State v. Berry, 137 P.3d 500 (Kan. Ct. App. 2006) ........................................... 408State v Burneson, 2007 WL 2269548 (Ohio Ct. App. 2007) ............................ 491State v. Dicke, 310 P.3d 1170 (Or. Ct. App. 2013) .............................................. 15State v. Dixon, 2006 WL 1120688 (Ohio Ct. App. 2006) ................................... 30State v. Dokken, 2013 WL 4711131 (Minn. Ct. App. 2013) ............................... 15State v. Fessenden, 333 P.3d 278 (Or. 2014) ....................................................... 11State v. Gruntz, 273 P.3d 183 (Or. Ct. App. 2012) .............................................. 17State v. Ibrahim, 2013 WL 195516 (Kan. Ct. App. 2013) .................................. 15State v. Leachman, 2014 WL 4090165 (Mon. 2014) .......................................... 12

567

Table of Cases

State v. Markley, 2014 WL 5577352 (Wash. Ct. App. 2014) .............................. 12State v. Martin, 662 S.E.2d 406 (S.C. 2008) ....................................................... 27State v. Meduna, 794 N.W.2d 160 (Neb. Ct. App. 2011) .................................... 20State v. Morgan, 14 N.E.3d 452 (Ohio Ct. App. 2014) ....................................... 12State v. Nance, 562 S.E.2d 557 (N.C. Ct. App. 2002)................................. 33, 108State v. Peterson, 301 P.3d 1060 (Wash. Ct. App. 2013) .................................... 15State v. Queen, 2007 WL 2269484 (Ohio Ct. App. 2007)................................. 491State v. Robertson, 2016 WL 3177010 (Ct. Crim. App. Tenn. 2016) ................... 6State v. Ross, 2001 WL 506568 (Minn. Ct. App. 2001) ...................................... 34State v. Stanton, 2012 WL 76906 (Tenn. Crim. App. 2012) ............................... 18State v. Thurston, 739 A.2d 940 (Md. Ct. Spec. App. 1999)............................. 176State v. Wells, 629 N.W.2d 346 (Iowa 2001) ....................................................... 34State v. Winston, 21 Misc. 3d 881, 864 N.Y.S.2d 2008 (N.Y. App. Div. 2008) ......450State v. Wood, 2007 WL 1892483 (N.C. Ct. App. 2007) .................................... 28State v. Ziemann, 705 N.W.2d 59 (Neb. Ct. App. 2005) ............................. 30, 103Steeg v. Baskin Family Camp, 124 S.W.3d 633 (Tex. App. 2003) .................... 284Steve Heathcott Arabians, LLC v. Griffith, 2017 WL 6616371

(Az. Ct. App. 2017) ............................................................................... 74, 445Stewart v. Kentucky Horse Racing Comm’n, 2013 WL 1003534

(Ky. Ct. App. 2013) ............................................................................. 353, 504Stoecker v. Stephens, 711 N.W.2d 733 (Iowa Ct. App. 2006) ........................... 439Stoffels v. Harmony Hill Farm, 912 A.2d 184

(N.J. Super. Ct. App. Div. 2006) ................................................................. 271Stokes v. California Horse Racing Bd., 119 Cal. Rptr. 2d 792

(Cal. Ct. App. 2002) .................................................................................... 393Stout v. U.S. Forest Service, 869 F. Supp. 2d 1271 (D. Or. 2012) .................... 521Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296 (D. Wyo. 1999) ................. 299Strickland v. Comm’r, T.C. Memo. 2000-309 (T.C. 2000) ............................... 486Stroh v. Omni Arabians, 748 A.2d 1015 (Md. Ct. Spec. App. 2000) .................. 63Stroman v. Bell, 2012 WL 4093578 (N.J. Super. App. Div. 2012) .................... 250Suburban Downs, Inc. v. Illinois Racing Bd., 735 N.E.2d 697

(Ill. App. Ct. 2000) ...................................................................................... 397Suffolk Regional Off-Track Betting Corp. v. New York State Racing and

Wagering Bd., 11 N.Y.3d 559 (N.Y. 2008) .................................................. 199Sullivan v. Com., 2010 WL 152062 (Va. Ct. App. 2010) .................................... 22Sumner v. Hogan, 73 A.D.3d 618 (N.Y. App. Div. 2010) ................................. 363Supchak v. Pruitt, 503 S.E.2d 581 (Ga. Ct. App. 1998) .................................... 317Super Sulky Inc. v. U.S. Trotting Ass’n, 174 F.3d 733 (6th Cir. 1999) ................ 45Swanstrom v. Seadler, 2010 WL 4294684 (Ky. Ct. App. 2010) ....................... 258Swido v. Lafayette Ins. Co., 916 So. 2d 399 (La. Ct. App. 2005) ............. 277, 440Swigart v. Bruno, 220 Cal. Rptr. 3d 556 (Cal. Ct. App. 2017).......................... 231Sylvester v. Rische, 2001 WL 548628 (Ohio Ct. App. 2001) ............................ 414

568


TTabor v. Daugherty, 2017 WL 2829403 (Ky. Ct. App. 2017) ........................... 232Tabor v. State, 344 S.W.3d 853 (Mo. Ct. App. 2011) ......................................... 21Tackett v. Marion County Fair Bd., 272 F. Supp. 2d 686

(N.D. Ohio 2003) ................................................................................ 106, 389Tammaro v. Comm’r, T.C. Memo. 2000-243 (T.C. 2000) ................................. 163Tattersalls, Ltd. v. DeHaven, 745 F.3d 1294 (9th Cir. 2014) ............................ 431Tavakoly v. Fiddlers Green Ranch, 998 So.2d 1183

(Fla. Dist. Ct. App. Div. 2009) .................................................................... 260Taylor v. Howren, 606 S.E.2d 74 (Ga. Ct. App. 2004) ...................................... 280Teles v. Big Rock Stables LP, 419 F. Supp. 2d 1003 (E.D. Tenn. 2006) ........... 271Tennant v. Tabor, 932 N.Y.S.2d 648 (N.Y. App. Div. 2011) ............................. 308Tennessee Downs, Inc. v. Gibbons, 15 S.W.3d 843

(Tenn. Ct. App. 1999) .......................................................................... 110, 399Tennessee Walking Horse Breeders’ and Exhibitors’ Ass’n v. Nat’l

Walking Horse Ass’n, 2007 WL 4365784 (M.D. Tenn. 2007) .............. 68, 190Tennyson v. Zoning Hearing Bd. of West Bradford Township,

952 A.2d 739 (Pa. Commw. Ct. 2008) ........................................................ 218Terry v. State, 2013 WL 1859342 (Tex. App. 2013) ........................................... 16Texas Racing Comm’n v. Marquez, 2011 WL 3659092 (Tex. App. 2011) ........ 359The Cloud Foundation v. U.S. Bureau of Land Mgmt.,

802 F. Supp. 2d 1192 (D. Nev. 2011) .......................................................... 522The Humane Soc’y v. Johanns, 2007 WL 1120404 (D.C. Cir. 2007) ............... 457The Huntington Nat’l Bank v. Global Publishing Papers, Inc.,

853 A.2d 396 (Pa. Super. Ct. 2004) ............................................................. 451Theokary v. Abbatiello, 468 B.R. 729 (Bankr. E.D. Pa. 2012) ......................... 447The Penobscot Nation v. Maine Harness Racing Comm’n,

2004 WL 1434510 (Me. Super. Ct. 2004) ................................................... 384Thomas v. Ohio State Racing Comm’rs, 2009 WL 840547

(Ohio Ct. App. 2009) ................................................................................... 366Thomas v. Tampa Bay Downs, Inc., 761 So. 2d 401

(Fla. Dist. Ct. App. 2000) ............................................................................ 129Thompson v. Dixon, 2005 WL 1773980 (E.D. Pa. 2005) .......................... 104, 380Thompson v. Sprouse, 2006 WL 1232999 (Cal. Ct. App. 2006) ....................... 271Thoro-Graph, Inc. v. Lauffer, 2012 WL 5038254 (Ky. Ct. App. 2012) ............ 117Thrasher v. Riverbend Stables, LLC, 2009 WL 275767

(Tenn. Ct. App. 2009) .................................................................................. 172Threkeld v. State of Colorado, 16 P.3d 359 (Mont. 2000) .................................. 84Tilson v. Russo, 30 A.D.3d 856 (N.Y. App. Div. 2006) ..................................... 272Tipton v. Quinn, 2001 WL 329530 (Tenn. Ct. App. 2001) ................................ 123Toben v. Jeske, 718 N.W.2d 32 (S.D. 2006) ...................................................... 272Tobin v. Comm’r, T.C. Memo. 1995-328 (T.C. 1999) ....................................... 486Tolin v. Comm’r, T.C. Memo. 2014-65 (T.C. 2014) .......................................... 478

569

Table of Cases

Topping v. Comm’r, T.C. Memo. 2007-92 (T.C. 2007) ..................................... 482Toro v. New York Racing Ass’n, 944 N.Y.S.2d 229 (N.Y. App. Div. 2012)....... 250Toth v. Comm’r, 128 T.C. 1 ( T.C. 2007) ........................................................... 483Township of Webber v. Austin, 2014 WL 1614613 (Mich. Ct. App. 2014) ....... 215Trexler v. Giese, 2010 WL 3220080 (D.S.C. 2010) ...................................... 22, 99Tribe v. Peterson, 964 P.2d. 1238 (Wyo. 1998) ................................................ 321T.R. Racing v. Arizona Dep’t of Racing, 222 P.3d 280

(Az. Ct. App. 2009) ..................................................................................... 366Trupp v. Comm’r, T.C. Memo. 2012-108 (T.C. 2012) ...................................... 155Turner v. Caplin, 596 S.E.2d 525 (Va. 2004) .................................................... 220Turner v. Moore, 752 So. 2d 908 (La. Ct. App. 1999) ...................................... 299Turner v. USDA, 217 F. App’x 462 (6th Cir. 2007) ............................................ 29Twin City Fire Ins. v. Delaware Racing Ass’n, 840 A.2d 624 (Del. 2003) ....... 185Twin Rivers Farm, Inc. v. Comm’r, T.C. Memo. 2012-184 (T.C. 2012) ........... 479

UU.S. v. Cheska, 202 F.3d 947 (7th Cir. 2000) .................................................... 329U.S. v. Johnston, 2013 WL 5775250 (E.D. Ky. 2013) ...................................... 431U.S. v. King, 2010 WL 4739791 (S.D.N.Y. 2010) ............................................ 436U.S. v. Martin, 411 F. Supp. 2d 370 (S.D.N.Y. 2006) ....................................... 377U.S. v. Shenise, 43 F. Supp. 2d 1190 (D. Colo. 1999) ....................................... 222U.S. v. Webb, 24 F. Supp. 3d 432 (M.D. Pa. 2014) ........................................... 348U.S. v. Woodland Dream, 2013 WL 5775298 (E.D. Ky. 2013)......................... 431

VVaders v. Pennsylvania Dep’t of Agriculture, 2010 WL 1053301

(E.D. Pa. 2010) .................................................................................... 100, 363Valencia v. Diamond F. Livestock, Inc., 973 N.Y.S.2d 446

(N.Y. App. Div. 2013) ................................................................................. 246Valente v. D.W. Burnhouse Const., Inc., 2003 WL 1310066

(Cal. Ct. App. 2003) .................................................................................... 285Valentino v. Davis, 703 N.Y.S.2d 609 (N.Y. App. Div. 2000) ........................... 124Vanderbrook v. Emerald Springs Ranch, 109 A.D.3d 1113,

(N.Y. App. Div. 2013) ................................................................................ 246VanHorn v. Oelschlager, 457 F.3d 844 (8th Cir. 2006) ............................ 377, 510Van Wickler v. Comm’r, T.C. Memo. 2011-196 (T.C. 2011) ............................. 480Vaughn v. Krehbiel, 367 F. Supp. 2d 1305 (D. Colo. 2005) .............................. 461Vaughn v. Rhea, 2006 WL 1549760 (D. Colo. 2006)........................................ 439Vaughn v. Shepard, 2014 WL 1493126 (N.D. Ohio 2014) ............................... 306Veitch v. Kentucky Horse Racing Comm’n, 2013 WL 5765130

(Ky. Ct. App. 2013) ..................................................................................... 354

570


Vendrella v. Astriab Family Limited P’ship, 660 A.3d 707 (Conn. App. Ct. 2012) ................................................................................. 250

Vichot v. Day, 913 N.Y.S.2d 838 (N.Y. App. Div. 2011) ................................... 308Villareal v. Smith, 2011 WL 3077700 (Ohio Ct. App. 2011) .............................. 79Vince v. Com., 2015 WL 674709 (Va. Ct. App. 2015) .......................................... 9Vos v. Cordray, 719 F. Supp. 2d 832 (N.D. Ohio 2010).............................. 22, 100

WWaite v. State of Delaware, 2009 WL 406806 (Del. Super. Ct. 2009) .............. 366Warmington v. Keeth, 2008 WL 4093612 (D. Utah 2008) ................................ 437Washington v. Zawistowski, 82 P.2d 698 (Wash. Ct. App. 2004) ........................ 31Watral v. Silvernails Farm, LLC, 51 F. App’x 62 (2d Cir. 2002) ................ 83, 413Waxman v. Kentucky Horse Racing Auth., 2010 WL 1928503

(Ky. Ct. App. 2010) ..................................................................................... 364Weddington v. Rudolph, 2012 WL 1029434 (Cal. Ct. App. 2012) .................... 118Wegner v. Parcel, 683 N.W.2d 126 (Iowa Ct. App. 2004) ................................ 313Weisbord/Etkin/Goldberg v. Gainesway Mgmt. Corp.,

2008 WL 820950 (Ky. Ct. App. 2008) ................................................ 437, 469Welch v. Comm’r, T.C. Memo. 2017-229 (T.C. 2017) ...................................... 149Welk v. Simpkins, 2010 WL 4560015 (5th Cir. 2010) ............................... 145, 499Wemer v. Walker, 2015 WL 2058960 (Ohio Ct. App. 2015) ............................. 237Wendt v. Jacus, 288 A.D.2d 889 (N.Y. App. Div. 2001) ................................... 291Westmore v. Hyde, 2016 WL 2642254 (W.D. Wisc. 2016) ............................. 6, 90Wheeler v. Bishop, 2008 WL 110452 (W.D. Va. 2008) ..................................... 406Whipple v. City of Cordele, 499 S.E.2d 113 (Ga. Ct. App. 1998) ..................... 223White v. Elias, 4 N.E.2d 391 (Ohio Ct. App. 2012) .......................................... 251Wiederkehr v. Brent, 548 S.E.2d 402 (Ga. Ct. App. 2001) ............................... 291Wilburn v. Honeycutt, 519 S.E.2d 774 (N.C. Ct. App. 1999) ........................... 299Wilcox v. Magill, 2012 WL 834126 (10th Cir. 2012) .......................................... 78Wilder v. Manchester, 113 S.W.3d 189 (Ky. Ct. App. 2003) ............................ 313Wild Horse Observers Ass’n v. New Mexico Livestock Bd.,

636 P.3d 1222 (N.M. Ct. App. 2015) .......................................................... 519Wilkerson v. Lowndes County, 2018 WL 1309854 (N.D. Miss. 2018) ........... 3, 87Willeck v. Mroteck, Inc., 616 N.W.2d 526 (Wis. Ct. App. 2000) ...................... 294Williamson v. Curran, 714 F.3d 432 (7th Cir. 2013) ................................... 95, 446Williamson v. Prida, 89 Cal. Rptr. 2d 868 (Cal. Ct. App. 1999) ....................... 514Williams v. Chamounix Equestrian Center, 2010 WL 4358347

(Pa. Comm. Pl. 2010) .................................................................................. 258Williams v. City of Lufkin, 2000 WL 84903 (Tex. App. 2000) .......................... 315Williams v. Pauley, 768 S.E.2d 546 (Ga. Ct. App. 2015).................................. 305Willis v. Holder, 2011 WL 240111 (Ind. Ct. App. 2011) ................................... 308

571

Table of Cases

Willis v. State, 46 P.3d 890 (Wyo. 2002) ........................................................... 413Wilson v. Comm’r, T.C. Summ. Op. 2007-117 (T.C. 2007) .............................. 158Wilson v. Davis, 2010 WL 5478616 (W.D. Ky. 2010) ...................................... 258Wilson v. Indiana Horse Racing Comm’n, 2011 WL 1583850

(Ind. Ct. App. 2011) .................................................................................... 360Wilson v. McDaniel, 327 P.3d 1052 (Kan. Ct. App. 2014) ................................ 306Wing v. Zoning Bd. of Appeals,767 A.2d 131 (Conn. App. Ct. 2001) ............... 221Winner v. Ohio State Racing Comm’n, 1998 WL 178566

(Ohio Ct. App. 1998) ................................................................................... 399Witt v. Nation-Wide Horse Transportation, Inc., 197 F. Supp. 3d 1146

(S.D. Iowa 2016) ........................................................................................... 75Wolff v. Indiana, 87 N.E.3d 528 (Ind. Ct. App. 2017) ........................................... 4Wonderland Greyhound Park, Inc. v. State Racing Comm’n,

696 N.E.2d 964 (Mass. App. Ct. 1998) ....................................................... 204Wood v. Fliehman, 952 N.E.2d 555 (Ohio Ct. App. 2011) ................................. 79Workman v. Anderson Music Co., 149 P.3d 1060 (Okla. Civ. App. 2006) ........ 532Wright v. Patrikeas, 2010 WL 3385565 (Mass. Land Ct. 2010) ....................... 217Wright v. R&M Fence and Construction, 2009 WL 1347289

(Ky. Ct. App. 2009) ..................................................................................... 172Wyoming Downs Rodeo Events, LLC v. State, 134 P.3d 1223 (Wyo. 2006) ............378

X

YYaters v. Kemp, 979 N.E.2d 678 (Ind. Ct. App. 2012) ...................................... 216Young v. Cincinnati Equine, LLC, 2017 WL 2153918 (E.D. Ky. 2017) ........... 503Young v. Schmucker, 2008 WL 2945623 (N.D. Ind. 2008) ............................... 133Young v. Tirrell, 767 N.Y.S.2d 121 (N.Y. App. Div. 2003) ............................... 285

ZZahnd v. Secretary of the Dep’t of Agriculture, 479 F.3d 767

(11th Cir. 2007) ............................................................................................. 29Zayat Stables, LLC v. NYRA, Inc., 2009 WL 4021182

(N.Y. Sup. Ct. 2009) ...................................................................................... 25Zendejas v. Redman, 2017 WL 2547202 (S.D. Fla. 2017) ........................ 404, 425Ziegler v. Matthias, 2002 WL 554369 (Minn. Ct. App. 2002).......................... 413Zito v. New York State Racing and Wagering Bd., 300 A.D.2d 805

(N.Y. App. Div. 2002) ................................................................................. 394Zobel v. Burrell, 167 S.W.3d 688 (Mo. 2005) ..................................................... 31Zollinger v. Ohio State Racing Comm’n, 729 N.E.2d 808

(Ohio Ct. App. 1999) ................................................................................... 399

572


Zsamba v. Community Bank, 56 F. Supp. 2d 1207 (D. Kan. 1999) .................. 416Zuckerman v. Coastal Camps, Inc., 716 F. Supp. 2d 23 (D. Maine 2010) ....... 259Zuraitis v. Kimberden, Inc., 2008 WL 142773 (Mass. Super. Ct. 2008) ............. 80

Documents

Equine Case Law Digest 1998-2018