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☛ When barrel racing turns into a lawsuit 10-16-17

 

 

WHEN BARREL RACING TURNS INTO A LAWSUIT

By Glory Ann Kurtz
Oct. 16, 2017

 

Today, barrel horses bring a lot of money – and that’s because they can win a lot of money. It doesn’t matter if the rider is a boy or a girl, a man or a woman, 10 years old or 60 years old, a newcomer or a professional. However, the important thing is how old the horse is, how well trained it is and most important of all, how sound it is – which means, “How long will he or she last by staying sound?”

 

A court case in Madisonville County, Texas, began on May 22, 2016, in which Savannah Robertson, Los Osmos, Calif., purchased a barrel horse named Crown N Diamonds, a.k.a. “Rosie” and “Cinderella,” from Hope B. Martin, Huntsville, Texas, through her agent/broker Michelle Alley, Madisonville, Texas, a professional in the barrel racing industry. Prior to the purchase, Robertson was told that Cinderella was a sound barrel-racing performance horse, even though the May 13, 2016 contract for the $10,000 sale stated the horse was being sold “as is.”

 

The purchase soon turned into a legal battle with the agent Michelle Alley being the Plaintiff filing a lawsuit against the defendants Hope B. Martin, the owner, and Savannah Robertson, the buyer. The reason was that approximately three days after Robertson took possession of the horse, on May 22, 2016, Cinderella experienced a “patella lockup” or an upper fixation of the left hindquarter stifle ligament. The first patella lockup occurred in the round pen and the second patella lockup occurred while Robertson was riding the mare, causing the horse and rider to go to the ground.

 

Thereafter, the horse was brought to a California veterinarian who identified the locking patella or upper-fixation condition and referred the horse to the Alamo Pintado Equine Medical Center, Los Olivos, Calif. Upon evaluation, the veterinary clinic also identified this abnormality and treated the horse for the patella lockup condition.

 

What is a patella lockup?

 Horse-Jumping stifle. … A locking stifle (in vet words, an upward fixation of the patella or UFP, a common problem in horses that is often unrecognized and often misdiagnosed as general hind leg lameness or overlooked altogether. The stifle joint in a horse’s hind leg corresponds anatomically to the knee joint in the human leg. However, instead of appearing halfway down the limb like the human knee, the horse’s stifle doesn’t even look like a joint because it is hidden within the structure of the horse’s upper hind leg. If you put your hand on the front of the horse’s hind leg where it ties into the flank, you can feel the patella, a small bone that is the anatomic equal of the human kneecap. The patella sits just above the stifle joint where the horse’s femur (upper leg bone that ties into the hip) and the tibia (long bone above the hock) meet.

 

The medial patellar ligament has the important function of hooking over a notch in the end of the femur when the horse is standing still. This stabilizes the stifle and allows the standing or snoozing horse to bear weight on the hind leg without muscular effort. Normally, the ligament slides out of the notch when the horse swings its leg forward as it begins to walk. If the ligament gets hung up and doesn’t slip into an unlocked position, the hind leg can’t be flexed forward and the horse has to drag the stiffened limb forward for a few steps before the ligament releases. This is commonly known as a locking or sticking stifle. While veterinarians term the condition “upward fixation of the patella,” old-time horsemen have a simpler descriptive phrase: “That horse is stifled.” They might add, “Back him up a few steps to get it to release,” and this trick often works. The following image depicts a horse with a locked stifle. The situation becomes problematic for the horse and rider when the stifle inadvertently locks while the equestrian team is in full performance mode. A locked stifle in the performance arena or while under saddle in generally utility riding can cause serious injury to the rider and horse or in the worst case scenario – death or permanent paralysis, if the horse goes down.


 

It wasn’t long before a demand letter from Savannah Robertson’s attorney, Robert Wagstaff, McMahon, Surovik, Suttle PC of Abilene, Texas was forwarded to the seller Hope B. Martin and her agent Michelle Alley on Sept. 30, 2016 stating damages and violations of the Texas Deceptive Trade Practices Act, especially – Section 17.46 of the Texas Business Commerce Code. More specifically, “Deceptive Trade Practices.” Unlawful – (a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under 17.47, 17.58, 17.60 and 17.61 of this code.

 

However, upon receipt of the demand letter for payment of damages, court documents indicate the agent Michelle Alley hired attorney David Hammitt of Madisonville, Texas, to represent her in this matter by filing a lawsuit in her behalf against the buyer Savannah Robertson and the seller Hope B. Martin. Alley, the agent, had sued the buyer, Savannah Robertson, for breach of contract for desiring a rescission of the sale contract and a refund of funds. Thereafter, Robertson’s attorney countersued Alley, alleging violations of the Deceptive Trade Practices Act (DPTA) as previously stated, along with a realignment of Plaintiff and Defendants. More specifically, aligning Savannah Robertson as the Plaintiff and the agent Michelle Alley and the seller Hope B. Martin as the Defendants.

 

Further, Robertson’s lawsuit states the cause of action is “preexisting but undisclosed medical condition of the horse prior to the sale, that disqualifies Crown N Diamonds (Cinderella) as useful for the purpose identified by Robertson, i.e. a barrel-racing performance horse.” Therefore, disqualifying Crown N Diamonds (Cinderella) as a performance prospect for Robertson.

 

The lawsuit also stated that if these preexisting conditions would have been known prior to sale, it would have greatly affected Robertson’s opinion and she would have not bought the horse. The lawsuit further states this non-disclosure of disqualifying preexisting medical conditions was used to induce Robertson to buy the horse.

Link to the lawsuit>>

 

Then comes a strange twist:

 

Afterwards, Robertson’s attorney issued a series of subpoenas in this matter and the results are revealing and alarming to say the least. First, it was disclosed that while under the care, ownership and control of Michelle Gilbert of Bryan, Texas, the horse did in fact exhibit a series of medical treatments, (i.e.) locking patella, blistering the soft tissue surrounding the stifle ligament, hock injections, stifle injections, neck injections, colic treatment and treatment for a lameness of the right front hoof and proof of preexisting medical conditions. The treatments had been performed by Dr. Cameron Stoudt of the Texas Equine Hospital, Bryan, Texas who is also a contributor to “Barrel Horse News.”,

Medical Records

 

Other evidence contributing to a preexisting medical condition for the horse is included on the Facebook social media page of Gilbert where Gilbert openly admits the horse suffered from a locking patella as well as other injuries during training. A review of Stoudt’s medical records indicate after the last medical treatment, the owner (Gilbert) was selling the horse. A recovered advertisement by Gilbert states the horse is being sold as a “broodmare-sound-only horse, but may be runable in the future.”

 

Court documents report that the horse was sold by Gilbert to Hope B. Martin for $4,500, as a broodmare-sound-only mare. In Martin’s deposition, she states she was made aware of the preexisting medical conditions for the horse but “thought it was no big deal.” A scrutiny of the deposition transcripts didn’t reveal a challenge to Martin’s statement by Robertson’s attorney as to her veterinary knowledge that is sufficient for Martin to make such a medical evaluation of soundness.

 

Subpoenaed medical records also indicate Martin, by referral of Cameron Stoudt DVM, had the horse evaluated and treated at Texas A&M Medical University for the right front hoof injury and the records indicate the horse was also suffering from a degenerating navicular bone. For the record, Dr. Stoudt injected the horse’s right front navicular bursa on March 18, 2015. Also, for the record, court documents indicate none of these pre-existing medical conditions and treatments for the horse were ever conveyed to Savannah Robertson prior to the sale of the horse by Hope B. Martin and her agent Michelle Alley.

 

Another curious impact to this lawsuit indicates there are four individuals involved with this horse: Michelle Gilbert, Hope B. Martin, Michelle Alley and Cameron Stoudt DVM. It should be noted that Dr. Cameron Stoudt is the veterinarian of record for all three owners: Michelle Gilbert, Hope B. Martin and Savannah Robertson. It should also be noted that Dr. Stoudt treated the horse for Michelle Gilbert and Hope B. Martin as well as being the veterinarian of record who conducted the pre-purchase exams for Martin and Robertson. Dr. Stout passed the horse as sound on each pre-purchase veterinary exam.

 

When the depositions and other documents were scrutinized, it was learned that the agent Michelle Alley and the owner, Hope B. Martin, were advertising the horse as “Sound and Sane,” without mentioning any preexisting medical conditions and that the horse was in training with Michelle Alley to make her a “super star.” However, while under deposition scrutiny, each one denied having any alleged videos in their possession riding, exhibiting or showing the horse due to the fact that each of their cell phones had either been lost or collapsed prior to the depositions, which required replacement phones and a total loss of data.

 

But it was determined in Michelle Alley’s deposition that she is a “professional horsewoman” who makes a living training and exhibiting barrel horses as well as boarding, brokering, buying and selling horses. Another curiosity is in Alley’s lawsuit, where her attorney refers to Alley in this matter as a “consumer” rather than an “agent or broker” for the sale of Crown and Diamonds (Cinderella). For clarification, a “consumer” is one who buys a product. An Agent is one who represents an individual in the sale of a product or sells it in their behalf. Further scrutiny revealed professionals in the business are held to a higher standard than an individual just selling a personal horse.

 

On Sept. 11, 2017, an agreed-to “Order of Dismissal with Prejudice of Certain Claims” was filed jointly by the attorneys for Alley and Robertson, which essentially states Alley is dismissing her claims against Hope Martin and Savannah Robertson “with prejudice,” and Savannah Robertson dismissed her claim against Alley “with prejudice,” which essentially means the action can’t be filed in this court or any other court after dismissal.

 

However Robertson’s claim against Hope B. Martin remains intact and the lawsuit has been realigned as Savannah Robertson (as Plaintiff) vs Hope B. Martin (as Defendant).

 

 

Is the Seller a professional?

As Equine Legal Solutions explains: “Is the seller someone who sells horses as part of their business, such as a trainer or breeder, or are they an individual horse owner who sells a horse only occasionally?  If the seller is a professional, the sale may be subject to the Uniform Commercial Code, which provides that a “warranty of merchantability” is implied in every sale by a “merchant.”  In laymen’s terms, this means when a breeder or trainer sells a riding horse, there is an implied term that the horse is sound enough to be used as a riding horse. No warranties are implied in sales by individuals. The implied warranty of merchantability can be overcome by a specific statement in the sale contract disclaiming this warranty. Note, however, that contract statements such as “As Is,” “no warranties,” or “seller disclaims all warranties” are insufficient to successfully disclaim the warranty of merchantability – the word “merchantability” must be specifically mentioned in the contract disclaimer.

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One Comment

  1. Very interesting article. Thank you for writing about this issue.

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