Exam T
Misty’s Disappearance Answer: Both B and C.
he Answer is not A: Janie is not going to reclaim either ownership or physical custody of Misty from
Nancy through any legal mechanism. Nancy’s parents paid $30,000 for Misty and have a bill of sale from Karen. Although Karen had no legal right to sell Misty, Nancy’s parents would have had no reason to suspect there was anything irregular about the sale because at the time of the sale she was a riding instructor at a recognized busi- ness establishment that was in the business of buying and selling horses. It’s not as if Nancy’s parents bought the pony off a stock trailer in the parking lot of a high- way rest area. They also paid a commercially reasonable amount of money for Misty. Again, they didn’t hand over a few hundred dollars in cash to some transient truck driver. This makes them “Bona Fide Purchasers for Value,” or “BFPs.” A BFP will acquire good legal title to the object purchased in good faith without notice that it might be stolen property. It would be a waste of Janie’s time and money to go after Nancy and her parents. Janie would be best off to establish a friendly relationship with Nancy and her parents in the hopes of keeping tabs on Misty’s future whereabouts. B is a legitimate answer, but not a good option: Janie
has a legitimate claim against the Spencers for abandoning Misty. Even if the lease agreement was not the most artfully worded legal document ever written, it documented Janie’s ownership and the Spencers’ status as “lessee” who were as- suming temporary care, custody and control of Misty. Even though the facts of the case are convoluted by the fact that the lease term was “indefinite” and Janie had no reasonable expectation of when Misty would be returned to her, the ba- sic fact that the Spencer family relinquished control of Misty (they certainly cannot establish that they still have care, cus- tody and control of Misty) weighs in Janie’s favor. But to what end? The lease agreement she had them sign put Misty’s value at $3000. And how is she going to find the Spencers to sue them? And who to sue—Mr. or Mrs.? Mr. Spencer didn’t sign the lease and who knows what story Mrs. Spencer will come up with to defend herself. Certainly, their divorce attor- ney did not remember to account for Misty’s lease in the di- vorce decree. Hiring an attorney to litigate this claim will cost Janie more money than it’s worth. And should Janie choose to represent herself to prosecute this claim, she will certainly exert a lot of emotional energy and time in doing so for little financial reward—and that is assuming that the Spencers aren’t judgment proof or haven’t declared bankruptcy.
82 January/February 2018
C is the best answer, but also not a good option: Janie’s claim against Karen is the strongest because with the help of Nancy’s parents, Janie can establish that Karen misrepre- sented (in writing) that she had the authority to convey title to Misty and accepted money from Nancy’s parents. Karen committed horse theft, plain and simple. Karen’s actions give rise to both civil and criminal liability. Janie can go after Karen for civil theft, or she can try to get state or federal law enforcement to prosecute Karen criminally. Although theft is a criminal act, prosecutions for horse
theft are few and far between. Law enforcement authorities have bigger fish to fry and tend not to be particularly inter- ested in matters that they view as primarily “civil” disputes. Because Karen was Janie’s riding instructor and the pony was technically left in her care, the police are going to be less excited by the case than if Karen was some stranger who had snuck Misty out of her stall under cover of darkness. The police think of “theft” as a stranger taking your property by force, rather than someone you know simply overstepping the bounds of an otherwise consensual custody arrange- ment. They might go so far as to interview Karen, but Karen is likely to have some story that will sound good enough to keep the cops from throwing on the handcuffs (even if her story is a lie). So going to the police will probably not be sat- isfying for Janie. Suing Karen will, at best, result in a monetary award. Su-
ing Karen will not get Misty back. Will the amount of money Janie can get from Karen make it worth her while to sue Karen? Probably not, because even if Janie can find Karen to sue her, Karen is probably “judgment proof.” However, if Janie can find an attorney willing to take the case on a contin- gency basis (meaning Janie doesn’t have to pay the attorney up front and the attorney agrees to handle the case for either a percentage of what Janie is able to recover from Karen or for whatever attorneys’ fees the court might award), then she may find it satisfying to extract a pound of flesh from Karen…. if Karen can be located.
Krysia Carmel Nelson is a Virginia at- torney who is a nationally-recognized expert in equine law. She represents horse owners, trainers, riders, breeders, equestrian facilities, farms, clubs and associations across all nationally and internationally recognized disciplines. She currently rides and competes her Hanoverian Affirmed on Appeal in the amateur hunters. She can be reached at
eqlaw@aol.com.
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© The Book LLC 2011
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