Steve Delia

Congratulations to you for getting it in writing!!! I answered a question almost identical to yours in Horse & Rider Magazine this month. Just pick up the September issue and look for "ask the experts." Your vet report and the contract are the two things going for you here. I hope that the vet report was VERY clear that the "old injury" was not just a few months old but was at least a year old! Failing that, the argument looks too good for the seller, who will contend that the injury occurred after the date of sale.

Assuming that the Texas A&M report was on your side as to how "old" the injury was, then you can send a copy to the seller and invoke the condition in the bill of sale that the horse was "in sound condition and with no injuries." The passage of a year makes your case tough. I suggest that you act quickly or retain a lawyer right away to get going for you. Whether you need a Texas lawyer or one from another state I cannot answer, because the location of a legal dispute depends on several facts. Act quickly -- time is not on your side here.

As to your daughter almost getting hurt, there's no real entitlement to legal compensation here because (fortunately!) she did not end up getting hurt. However, I assume that you've stopped using the horse --- at least for strenuous activity like barrel racing. Good luck.

-- Julie Fershtman

We have filed with the court to issue a Writ of Replevin, to order the horses returned to the rightful owner. The dates keep being pushed out and the next date is not until 8/28. Does a person's estate "hold" property which was not owned by the deceased? What is your advice? Is possession the key to ownership? The owner is losing money by this horse not running. I would sincerely appreciate any advice. Please advise if you could assist our attorney in this case.

Regards,

Glenda Bass

What an unusual situation you have found yourself in. Importantly, you have turned to the right place -- the legal system -- to address the issues, as you state that you have filed with the court to issue a Writ of Replevin, to order the horses returned to the rightful owner.

But is your legal action specific enough? In particular, have you asked the Court to issue an INJUNCTION until the hearing? There should be no guesswork here -- if an injunction were requested you'd have clearly written papers requesting it, and if an injunction were issued, there'd be a very clear court mandate to this effect, which would be delivered to the trainer's wife and which would be enforceable in a court of law.

Clearly, what you need is an injunction. An injunction, if properly worded, would stop the trainer's wife from moving, transferring, selling, giving away, or disposing of your horses -- at least not until the Court has made a final determination on your Writ of Replevin.

Injunctions can be issued on an emergency basis, but there are legal requirements for seeking one and the requests can get pretty technical (I know; I've handled these matters over the years). If you have not already done so, I urge you to discuss this with your lawyer right away.

Good luck.

-- Julie Fershtman

Thank you,

Rhea C. Szymanski

What a wonderful service! Your concerns regarding liability are well-founded.

When we operate a car, we’re never without some type of liability coverage to protect us and others—and a car is engineered to follow our slightest command! -- so with horses, who are animals with minds of their own, the importance of insurance cannot be understated. Let me explain why.

You can just imagine the scenarios that could give rise to injuries and, potentially, a lawsuit—here are some: you and your horses might be doing fine, but some car might collide with you and the allegation might be that you had insufficient lighting or reflectors; or some drunk might fling a cigarette at your bomb-proof horse and frighten it, causing it to run away uncontrollably through crowds of pedestrians; a well-meaning mom might let her toddler approach your resting horse—only to have the toddler’s foot badly broken when the horse steps on it; or, on a "bad day" there just might be driver error, and a miscue-cue of the horse might cause a collision.

By now you know my answer to most of your questions: Unless the laws of your area mandate having insurance, insurance is a choice. But, I submit, it is a wise one and can be well worth every dime!

Finally, you ask whether you need "extra insurance" for your activities. Assuming that you agree with my suggestion above, the answer is a definite YES. And please note this important point, too: the minute you engage in a "business pursuit," and your carriage service very likely qualifies as one, you’re a candidate for some sort of commercial (business) liability insurance that is specifically tailored to your operations. Homeowner’s insurance will not cover you for this at all. Please talk to a knowledgeable insurance agent.

Best wishes for a fun and successful carriage venture.

-- Julie Fershtman

To make a long story short, she rode the horse two more times over the course of two weeks and they wanted to buy him. I was concerned that it wasn't the right match so I called the mother and told her that I was concerned that the horse was not right for her daughter and that I was afraid that she would get hurt.

They bought the horse anyway. We both signed a Bill of Sale that I typed up basically stating that the horse is sold as is with no warranties expressed or implied.

Since that time they have called me and said that the horse is now running away with the girl and she has fallen off, but not hurt, thank goodness. They are now trying to resale the horse but he has now gotten a bad reputation, so they probably can't sell him for as much as they paid for him. He never did this with me, in fact he was a champion horse last year.

They want me to take half of the loss. Do they have a case? The horse has not sold yet. What should I be doing in the mean time? Will the Bill of Sale that we signed be of any benefit to me?

Thank you.

It seems that you were very cautious in this horse sale situation, in that you allowed the buyers a reasonable chance to test out the horse, you voiced your concerns about the perceived unsuitability of the horse, and you even wrote a Bill of Sale that disclaimed warranties (I can't vouch for how legally-sufficient you did it, but you at least addressed it). As I see it, here's the problem: It appears that you were not cautious enough in what you reduced to writing.

What do I mean by that? Assuming that your "as-is" disclaimer had legally sufficient language, it's still at risk of being the target of a challenge. Courts in a growing number of states nationwide have ruled that an "as-is" disclaimer -- even if well-worded -- cannot insulate the seller from a case for fraud IF the seller, under the circumstances, had a duty to disclose a known problem. Bottom line: if the buyer tries to claim that you defrauded her, your "as-is" language may be questionable (ask a lawyer in your state to explain this further).

So, how will you fare if they do, in fact, target you for sales fraud? Do you have anything in writing that helps you? Well, remember when you expressed concerns that the horse wasn't the right match for the daughter? I'll bet there's nothing in writing to that effect. Worse, I'll bet the buyer will swear that you never made such cautionary statements. You and the buyer, should the case play out via the legal system, will have totally different accounts of the same deal -- this is going to be one tough case!

Here's how you may have prevented the problem: Since you spotted a legal dispute from the moment those folks expressed interest in your horse, your sales contract ought to have mentioned something to this effect. There are ways to say it tactfully in a contract.

Now the buyers want you to take half of the loss. What should you do? First, have someone who knows the law in your state advise you on whether your contract was properly worded and how it'll hold up in a legal challenge. If you get high marks, then stand your ground. Second, be practical here. Even if you're looking good in the eyes of the law, you may be facing thousands of dollars in legal fees over the deal -- are you ready for that? Your lawyer can advise you whether it makes sense -- from an economic standpoint alone -- to discuss settlement of the dispute or some other way of resolving it (mediation, arbitration, etc.). My book, Equine Law & Horse Sense, discusses these options.

Good luck, and keep on GETTING IT IN WRITING.

-- Julie Fershtman

Approximately 1 week prior to the accident the trainer contacted me and asked me if I would be interested in selling my gelding to the lessor. Then the accident occurred, yet we continued to talk about the sale. We discussed price, which the lessor agreed was reasonable ($3,500) and payment option plans. She said we should probably draw up some type of agreement. It was my impression at that point that the sale would take place. However, since those conversations the vet has informed the lessor and trainer that my gelding has permanent tendon damage and will never be able to jump again. He will be okay for flat work, but that's it. Unfortunately this horse's potential is that as a jumper, which has been acknowledged by the lessor and the trainer on numerous occasions.

The trainer and lessor have asked to terminate the lease. That's fine except that I'm getting a horse back that, in my opinion, has absolutely no value.

Do I have any legal recourse? There was no lease agreement signed. It was done by verbal agreement through the trainer. If I do have any legal recourse, in which state would it be? Do you know of any attorneys that specialize in equine law in the Kansas City, Missouri area?

There are more details to this matter, but too much to put here!

Thank you.

Your first question was: "Do I have any legal recourse?" Maybe you do -- there isn't enough information to tell. If your state law gives you recourse against a lessee when the lessee fails to give the subject of the lease (your jumper) REASONABLE CARE, then you'll likely need to make out a case that reasonable care was not given, and consequently that your personal property (your jumper) has gone down substantially in value.

But did the lessee do something improper to the horse? Maybe the horse just landed wrong from a basic jump. Or, maybe the lessee somehow abused your horse -- do you have witnesses or, alternatively, evidence from a veterinarian that the horse's lame condition could only have resulted from improper care?

I think you now see my point: winning a legal battle against the lessor -- depending on your state's law -- will most likely require you to prove that the horse was the victim of negligent care during the term of the lease. You'll also have to prove, among other things, how much the horse decreased in value as a result.

You next ask what state should "host" a lawsuit. Once again, I can't answer without more details. The answer hinges on the facts of the transaction and also on the "long-arm" statute of your state, which may give a basis to sue out-of-staters in your own state. I should caution you: whatever choice you make could be challenged by the one you sue (I've fought these "jurisdiction" fights many times over the years). What happens? This could mean loads of $$$ spent paying your lawyer to fight technical matters before you even get to the merits of your case!

Finally, you're looking for a lawyer in Missouri. E-mail me personally, if you really need a name, and I'll do my best to give you some.

-- Julie Fershtman