Chapter 87 Liability Statute

Q: If I post the Texas Chapter 87 Equine Liability Act sign --- I don’t need liability insurance because I cannot be sued, right?

A: Posting the Chapter 87 liability sign does not absolve a farm owner or any person from liability or immunize anyone from being sued, but it does provide a defense in the event of a lawsuit. In order to get a lawsuit dismissed under Chapter 87, the defendant will still have to answer the lawsuit and file and successfully argue a motion for summary judgment.  Many motions for summary judgment under Chapter 87 are dismissed and the case must proceed to trial.  It’s good to have insurance because most liability insurance companies
will either pay the claim or pay the costs associated with litigating the matter and any judgment entered against the defendant. 

Can affidavits be used in lieu of testimony at trial?

Q:    There is someone whose testimony would benefit my horse case, but they would be uncomfortable testifying in court and they don’t want to get involved. Can I just get them to sign a notarized affidavit and use that in court?

A:    An affidavit is inadmissible in court because it would be hearsay unless the witness shows up to testify at trial, thus it cannot be used in lieu of testimony. You can only use an affidavit in court to impeach a witness. You might have the potential witness sign a notarized affidavit to ensure that they cannot change their story later on the stand.

If a witness has testimony that is necessary to your case, you can make them come to court and testify by having them served with a subpoena. However, if the witness lives far away from the court house, they might be out of the subpoena range.

Another alternative is to do a telephone or live deposition of the witness with a certified court reporter taking down the testimony. This tends to be expensive, but the deposition transcript and excerpts from the deposition are generally admissible in court even if the witness does not show up. If you do decide to do a deposition, you must give the other party notice so that they can ask questions at the deposition as well.

Can a horse trainer place a lien on a horse?

A: Texas Law has not recognized a lien for unpaid training fees. Under Texas law (Section 70.003 of the Texas Property Code), a trainer who also boards a horse might legally assert a lien for costs associated with the "care" of the horse that are at least 60 days past due.
 

What Happens When A Customer Does Not Pay A Stud Fee?

Q: A mare was bred to my stallion last year and I have confirmed that there is a live foal on the ground, but the mare’s owner still has not paid his stud fee. I have been unable to contact the mare’s owner. How can I get him to pay me?

A: If the foal is between 5-10 months of age, the stallion’s owner has a stock breeder’s lien on the foal under Chapter 70.201 of the Texas Property Code.  If the stud fee owed is less than $10,000 (the limit for JP/Small Claims court in Texas) he should bring suit in JP court in the county where the mare’s owner resides.  The stallion’s owner should ask the judge to award him the amount owed for the stud fee or, in the alternative, order the foreclosure of his lien under Chapter 70.  Foreclosure of the lien would mean a writ would be issued for the sheriffs to seize the foal so he can sell it at public auction.

If My Horse is Hit by a Car, Could I be Held Liable for Damages to the Car?

Q: A woman was boarding her horse at a friend’s place and the horse escaped and got hit by a car (yikes!) The owner of the car is threatening to sue her for damages to the car. What does the law say regarding things like this? Is there a possibility she might have to pay for the car since it was her horse?

A: Most commercial boarding facilities have “care, custody, or control” insurance that covers incidents such as this. The first thing to do is ask the owner of the boarding facility if they have such insurance. Let's assume the incident was in Texas. If the horse was hit on a state or interstate highway, both the owner of the horse and the owner of the boarding facility may be found liable for criminal penalties under the Texas Ag Code (Class C Misdemeanor), IF the police can prove either of them knowingly allowed the horse to roam freely on the road. The driver of the car could also sue the horse owner under a general negligence theory for damages. This is even if the county is open range (see below).

If the horse was hit on a farm-to-market road, the boarder can still be held liable in negligence for damages but cannot be held criminally liable because it is not a violation of criminal law (Ag Code) to allow a horse to roam at large on a farm-to-market road.

The best case scenario would be if the boarder's horse was in a county that is still open range (i.e. has not adopted the “stock law”). If her county is open range, her horse had the right to roam freely (assuming it was not on a state or interstate highway). It is fairly difficult to determine whether or not your county is open range. You have to call the sheriff or county clerk and see if they can figure it out. Nobody has compiled a list of this information because it’s in the commissioner’s court minutes, usually from the 30’s and 40’s, and is very difficult to search.

Alison wrote a blog entry that is somewhat on point as well:
http://equinelaw.alisonrowe.com/2008/05/articles/livestock-laws/is-a-horseowner-liable-for-damages-if-a-horse-gets-loose/

Problems Arising from the Sale of a Horse With Multiple Owners

Q: A woman in Texas co-purchased a horse several years ago with a man. The hope was to train the horse and eventually sell it for a profit. There was no written agreement. After purchasing half the horse, the man showed no interest in the horse, paid for little of its care and did nothing to help lease/market the horse. The woman attempted to buy the man's half of the horse so she could have full ownership, but he refused. 
Recently, the woman has found a potential buyer who would like to do a lease-to-purchase on the horse. The man who still owns half the horse, does not want the horse to be leased or sold for unknown reasons and will not give the woman permission to enter the deal. The woman wants to know, given the fact that he's shown no interest in the horse and there was no written agreement, if she has the right to go ahead and sell the horse anyway. If not, what should she do?

A: Under the law the man and woman are either: 1) Tenants in common/co-owners of the horse; or 2) Partners on the horse In this situation it is likely they would be viewed as a partnership since they intended to go into the ownership of the horse for profit and to split profits on the horse. If it does happen they are co-tenants, each has an "undivided" 1/2 interest, so the analysis will not differ greatly from the partnership scenario.

Let's assume we're dealing with a partnership. In the absence of a partnership agreement, the rules governing this arrangement default to Chapter 152 of the Texas Business Organizations Code, which addresses partnerships. In order for the partnership to sell 100% of the horse, a "majority-in-interest" must agree. Majority in interest is defined as, "more than 50%", thus, the woman must have the man's consent to sell or lease the horse if she only owns 50%. The woman is free to sell her 50% partnership without the man's consent.

To be able to sell the horse, the woman needs to bring an action against the man under the Remedies Section (152.211) of the Business Organizations Code, arguing that the man is harming the partnership by his actions, breaching his fiduciary duties, and breaching the partnership agreement. She should ask the judge to allow her to buy the man out and sell the horse. She should also ask the court to award her money damages for the man's 50% share of partnership obligations that she has been paying for him.

FAQ Blog

This is a less formal blog for Alison Rowe Equine Legal Services that will contain short answers to commonly asked questions. Most questions are from callers who call the firm, or from individuals who comment on our main blog (http://equinelaw.alisonrowe.com/). We want this to become an open forum for equine law discussion, so feel free to comment on posts/asks questions/ start discussions.