☛ Lawsuit against stallion owners, vet regarding HERDA 8-4-16
LAWSUIT FILED AGAINST STALLION OWNERS AND VET REGARDING HERDA
SHAWN, LISA AND LAUREN MINSHALL SUE FOR FRAUD REGARDING HERDA DESIGNATION OF AUSPICIOUS CAT
By Glory Ann Kurtz
Aug. 4, 2016
Federal Court filings in the Eastern District of Texas, Sherman Division, lists a lawsuit entitled Shawn, and Lisa Victoria Minshall, and Lauren Victoria Minshall vs. Ed Dufurrena, Ed Durfurrena Cutting Horses, Anthony And Dufurrena, Hartman Equine Reproduction Center (HERC), and Dos Cats Partners dated Oct. 30, 2015.
The filed public court records allege the Plaintiffs suffered specific damages arising from the material fact that the Plaintiffs bred their mare to Auspicious Cat, a stallion owned by the Defendants, and the produced foal owned by the Plaintiffs suffers from HERDA. The court filings continue to state the Defendants specifically misrepresented the HERDA designation on Auspicious Cat in an advertisement, prior to the breeding, stating the sire was HERDA negative or HERDA N/N.
Shawn and Lisa Victoria Minshall reside in Hillsburgh, Ontario, Canada, and Lauren Victoria Minshall resides in Pine Grove, Ky. Ed Dufurrena and Ed Dufurrena Cutting Horses are in Gainesville, Texas, and according to their website, Hartman Equine Reproduction Center (HERC) have two locations in Whitesboro, Texas and Marietta, Okla.
Dos Cats Partners is a general partnership and includes the following current members and/or former members, identified by Defendants as being involved at all material times: Ed Dufurrena, Shona Dufurrena, Karen Claycomb, Tom Donaghe, Linda Donaghe, Gary Craighead, Barbra Hanselman, Michael Nolan, Tracy A. Agrall, Butch Redish and Blair Vissar.
Specifically, in the Plaintiff’s Third Amended Complaint, dated April 7, 2016, the Defendants represented to the Plaintiffs that their stallion Auspicious Cat (sired by High Brow Cat who is out of Smart Little Kitty by Smart Little Lena) and out of the mare Lenas O Lady, whose dam Doc O Lady was by Doc O’Lena) – meaning the stallion was double-bred Doc O’Lena) was free of the HERDA gene and not a carrier of the disease.
Click for Third Amended Complaint>>
EXPLANATION OF HERDA:
HERDA is a genetic skin disease that surfaces usually in the second year after an afflicted horse begins training and results in large painful lesions over large areas of the horse’s body, as well as hyperextensible skin and scarring. There is no cure and the majority of diagnosed horses have to be euthanized. HERDA has an autosomal recessive mode of inheritance, which means it could pop up in future generations. HERDA carriers is critical for the selection of mating pairs as breedings of carrier horses (those with at lease one recessive HERDA gene have a 25 percent chance of producing an affected foal.
However, nestled in the court documents, was a copy of a web page ad with Dufurrena riding Auspicious Cat, noting he stood at Pinnacle Equine Veterinary services, with Chelsea Makloski-Cohorn as Principal, with a $2,500 stud fee and marked HERDA N/N – meaning he didn’t have the HERDA gene.
Click for Auspicious cat ad in court papers>>
The Minshalls bred their mare, Miss Tassa Lena, to Auspicious Cat, with the resulting foal, Dr. Ozz, coming up positive for HERDA disease after the Plaintiffs incurred significant costs and expenses based on the Defendant’s misrepresentations and other wrongful conduct by Defendants, for which they are now seeking damages allowed by law.
Miss Tassa Lena was sired by Smart Little Lena by Doc O’Lena and out of Duntay Pistolena, whose dam also went back to Doc O’Lena. This made Dr. Ozz’s pedigree going to Doc O’Lena FOUR TIMES.
According to court documents, Dos Cats Partners is, upon information and belief, a general partnership with its principal place of business in Gainesville, Cooke County, Texas. Ed Dufurrena’s wife, Shona Dufurrena, Gainesville, Texas, is also mentioned “as an individual who may be served also – wherever she may be found.”
WHO IS SHAWN MINSHALL?
Minshall is the owner of a top-class Thoroughbred racing operation, which is ranked and held out as one of the top Canadian breeding and training operations for cutting horses.
Click for article on Minshall family>>
Click for Equine sport finds cutting edge>>
Court documents involve Dr. David Hartman of Hartman Equine Reproduction Center. During a deposition of Dr. Hartman on April 6, 2016, it was learned that Dr. Justin Voge and Dr Hartman performed the extraction of semen from Auspicious Cat for use in artificial insemination and he was responsible for handling the logistics of inseminating the mare with Auspicious Cat’s semen. They Plaintiffs claim that Hartman knew that there was a high likelihood that Auspicious Cat was a HERDA carrier while Auspicious Cat was stationed at his vet clinic. He testified that “most good sons of High Brow Cat were HERDA carriers” and he told Dufurrena such in an effort to encourage him to be responsible and test Auspicious Cat for HERDA in 2011.
The case is being held in the Eastern District of Texas, Sherman Division, because the Defendants reside in the Eastern District of Texas. Also, the Stallion Service Contract provided by the Defendants, purports to fix venue in Grayson County Texas, because “all of the terms and provisions of (The Agreement) are performable in Grayson County.
DR. HARTMAN’S RESPONSE:
Hartman’s response to the Third Amended Original Complaint filed by the Minshalls, filed April 20, 2016, denied that he engaged in any material misrepresentations and false advertising that resulted in injuries and damages to the plaintiffs related to Auspicious Cat. He denied representing that Auspicious Cat was free of the HERDA gene. He stated he did not have sufficient knowledge of most of the other allegations and although he admitted he was a Texas professional association, he denied that his principal place of business was in Gainesville, Cooke County, Texas.
Click for Dr. Hartman’s response>>
DISMISSAL WITH PREJUDICE:
In the middle of the case, Edward L. Dufurrena, Edward Dufurrena Cutting Horses LLC, Anthony and Dufurrena, Inc. and Dos Cats Partners, settled with the Minshalls. Therefore on April 28, an Order Of Dismissal with Prejudice was granted by United States District Judge Amos L. Mazzant, dismissing all parties in the suit except for Defendants Hartman Equine Reproduction Center, P.A. and Shona Dufurrena. Dismissal with prejudice, means the plaintiff is barred from filing another case on the same claim.
Click for Dismissal With Prejudice>>
PRESS RELEASE FROM PLAINTIFFS’ LAWYER:
Following the dismissal of the case, the Plaintiffs’ lawyer, Aaron J. Burke of Hartline Dacus Barger Dreyer LLP, Dallas, Texas, put out a press release on July 11, 2016, regarding the settlement of the case, stating “the owners of a nationally ranked stallion have paid $60,000 to settle claims that they made false and material misrepresentations and failed to disclose the status of their stallion as a carrier of HERDA.”
Burke said that he learned through discovery that the defendants’ stallion had indeed tested positive for HERDA years before and those results had never been revealed. He also said that “sometimes stallion owners, incentivized by large breeding fees, have been known to intentionally misrepresent a stallion’s status, claiming the stallion is not a carrier of HERDA or hiding test results.”
He also claimed his clients “had offered to settle prior to litigation for the approximate cost of raising and training the foal to that point, the defendants rejected the offer and the mare owners had no choice but to seek the court’s help in adjudicating their claims.”
Click for Attorney Aaron J Burke’s press release>>
AUSPICIOUS CAT OFFSPRING:
According to AQHA, Auspicious Cat has 138 foals, with 2 foaled in 2010, 10 in 2011, 12 in 2012, 45 in 2013, 45 in 2014, and 24 in 2015. He has sired 10 performing foals in 2016. A total of 14 of his foals have been performers.
CAUSES OF ACTION:
Causes of Action in the lawsuit include 1) Texas Deceptive Trade Practices Act against all Defendants state they indirectly engaged in false, misleading and deceptive acts and practices declared to be unlawful to the DTPA, Tex. Bus & Comm. Code 17.46(a) and (b); 2) Breach of Contract against all defendants for breaching contract dated April 15, 2012; 3) Negligent Misrepresentation and Negligence against all defendants by representing that Auspicious Cat was not a carrier of the HERDA gene; 4) Fraud against all defendants; 5) Fraudulent Concealment/Fraud by Nondisclosure against all defendants; 6) Joint Enterprise against defendants, Mr. Dufurrena, Dos Cats and HERC for obtaining profits from marketing, sales and promotion of Auspicious Cat’s semen by breed it with mares; 7)Civil Conspiracy against Defendants, Mr. Dufurrena, Dos Cats and HERC, incorporating all the previous allegations and 8) Aiding and Abetting Liability (against HERC), for assisting, encouraging and participation in Mr. Dufurrena’s negligent, tortuous and/or fraudulent conduct.
WHAT PLAINTIFFS ARE ASKING FOR:
The Plaintiffs are asking for 1) a trial by jury on all issues triable to a jury; 2) an award of up to three times Plaintiffs’ actual damages and mental-anguish damages, based on Defendants’ willful and intentional violations of the Texas Deceptive Trade Practices Act, 3) Plaintiffs’ actual damages and benefit-of-the-bargain damages; 4) an award of exemplary damages based on Plaintiffs’ fraud by nondisclosure claim based on a showing by clear and convincing evidence; 5) Plaintiffs’ attorneys’ fees, pursuant to Texas Civil Practice & Remedies Code, Texas Business and Commerce Code and other provisions of the law; 6) an award of court costs, prejudgment interest and post judgment interest and 7) any and all additional relief to which Plaintiffs show themselves to be entitled.
The Plaintiffs are demanding a jury trial which is currently tentatively set for sometime in January.
The latest item on the case in the court docket is that a Mediation Session was held on July 28, 2016 by John B. Shipp, the assigned mediator; however, the mediation did not result in a settlement. “I will continue to work with the parties to try to bring this matter to resolution,” said Shipp in the Mediator’s Report.