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Murray v. Burt

Opinion

December 29, 2010

MEMORANDUM OPINION AND ORDER DENYING BURT DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS I, III, V, VIII AND IX OF PLAINTIFFS’ FIRST AMENDED COMPLAINT

WILLIAM JOHNSON, District Judge

THIS MATTER comes before the Court upon Defendant Bob and Darian Burt’s Motion for Partial Summary Judgment on Counts I, III, V, VIII and IX of Plaintiffs’ First Amended Complaint, filed November 12, 2010 (Doc. 151). Having considered the parties’ briefs and the applicable law, I find that Defendants’ motion is not well-taken and will be denied.

Background

This case arises out of a dispute between the co-owners of the acclaimed quarter horse Dash Ta Fame. Plaintiff Janis Spencer Murray is a licensed New Mexico veterinarian who, with her husband Mac Murray owns and operates MJ Farms in Veguita, Socorro County, New Mexico. Defendant Bob Burt owns Dash Ta Fame. In 1997, Dr. Murray purchased a 10% ownership interest in the horse.

It is undisputed that Dr. Murray has a 10% interest in the stallion, and that Bob Burt has a 90% interest. The Murrays and Burts disagree on the nature of Plaintiffs’ ownership interest with regard to breeding rights, as well as to Dash Ta Fame’s frozen semen. Also at issue is whether Dr. Murray and Bob Burt had an agreement following Dr. Murray’s purchase of the 10% interest that the horse would continue to stand at Dr. Murray’s farm for subsequent breeding seasons.

Defendants move for dismissal based on summary judgment for Counts I, III, V, VIII and IX.

Count I: Breach of Contract for Failure to Renew Breeding Season Agreement; Count III: Breach of the Covenant of Good Faith and Fair Dealing; Count V: Promissory Estoppel; Count VIII: Request for Preliminary and Permanent Injunctive Relief for Breach of Contract in Connection with Frozen Semen; Count IX: Declaratory Judgment.

Discussion

The first part of the agreement was entered into in June, 1997 in Utah. See Am. Compl., ¶ 20, and Ex. B to Am. Compl. (Doc. 108-2). The June 17, 1997 written agreement between Bob Burt and Janis Murray was drafted by Janis Murray (then known as Janis Spencer) in her own handwriting and then signed by Bob Burt. Ex. A to instant motion (Murray Dep.) at 134-35:13-5. In October of that same year, Bob Burt and Dr. Murray signed another written agreement. See Doc. 108-2. The October 14, 1997 written agreement between Bob Burt and Janis Murray was drafted and prepared by Mr. Slingerland. Ex. A at 138-39:21-5; 148-49:1-5; Ex. D (Slingerland Dep); at 17:2-14.

Bob Burt and Janis Murray also entered into annual breeding contracts for Dash TaFame each year beginning in the 1994 breeding season and continuing through the 2009 breeding season. Ex. D to Am. Compl. (Doc. 108-4); and Ex. C to instant motion. Under each of these breeding contracts, Plaintiffs provided breeding and management services for Dash Ta Fame, with Dr. Murray specifically providing the veterinary services. Ex. A to instant motion at 159:4-19; 175:2-20; 176:6-11. These annual breeding contracts for 1994 through 2004 were also drafted and prepared by Mr. Slingerland.

There appears to be a dispute as to whether Mr. Slingerland was acting as an “agent” for either or both of the parties, but there is no dispute as to Mr. Slingerland’s actual role as a participant in the drafting of the agreements.

The stated purpose and intent with regard to the parties’ initial agreement is zealously disputed. Dr. Murray stated in her deposition that the “only reason” she bought the 10% interest in the stallion was “so he would not go anywhere else.” Ex. A at 154:14-16. She contends that the agreement that to stand Dash Ta Fame for the rest of its life was made at the time she first acquired an interest in the horse. This purported agreement is not written anywhere in the agreements between the parties.

The Burt Defendants maintain that no such oral agreement was made, and that Dr. Murray’s 10% interest consists of the right to receive her respective percentage of income derived from (1) the breeding of Dash Ta Fame, (2) semen that has been harvested and frozen (which currently is stored in three different locations), and (3) any prizes and awards received by the horse. Further, Defendants contend that any such oral agreement is not enforceable.

Defendants also point to the annual breeding season contracts as further evidence that the parties contemplated that the stallion could be relocated to another horse farm and that it would not always stand with Dr. Murray at MJ Farms. However, Plaintiffs claim that the initial 1997 agreement overrides any such notion because the agreement to stand the stallion at the Murrays’ farm (which they contend was part of the 1997 agreement to begin with) remained in full force and effect throughout subsequent years.

The counts in the Amended Complaint on which Defendants seek summary judgment (Counts I, III, V, VIII and IX) are, as Defendants themselves note, dependent on the existence of an agreement between the parties that Dash Ta Fame will stand with Dr. Murray for the remainder of the horse’s life. Because there is no written agreement to that effect, this case becomes a matter of contract interpretation, and it cannot be decided on the written documents that are available. The Court has already determined that the 1997 agreement is not fully integrated, and thus that limited parol or extrinsic evidence is necessary in order to determine the parties’ intent. See Doc. 198 at 5. A finding that the 1997 agreement is fully integrated is crucial to Defendants’ instant motion, and on that basis alone, summary judgment is not appropriate.

Under Fed.R.Civ.P. 56, the non-moving party bearing the burden of proof at trial on a dispositive issue must “go beyond the pleadings” and “designate specific facts” so as to “make a showing sufficient to establish the existence of an element essential to that party’s case in order to survive summary judgment); see Ford v. West, 222 F.3d 767, 774 (10th Cir. 2000). The “evidentiary” support for this motion consists mostly of depositions in which the parties describe their respective understandings with regard to the various agreements, as well as the written agreements that are of little help in getting to the bottom of the real question — whether there was an agreement between the Burts and Plaintiffs that in exchange for Dr. Murray’s purchase of a 10% interest in Dash Ta Fame, the stallion would continue to stand at MJ Farms.

This is not the first motion in this case in which the Court has had to deal with issues touching on the meaning of the agreements entered into by the parties, and evidently it will not the last. What is becoming more and more clear is that a trial will be necessary in order to resolve most of the issues in this lawsuit. Because there are material disputes of fact concerning the purpose of the 1997 agreement, specifically with regard to an agreement to continually stand Dash Ta Fame at MJ Farms, Defendants are not entitled to summary judgment.

THEREFORE,

IT IS ORDERED that Defendant Bob and Darian Burt’s Motion for Partial Summary Judgment on Counts I, III, V, VIII and IX of Plaintiffs’ First Amended Complaint (Doc. 151) is hereby DENIED for reasons described above in this Memorandum Opinion and Order.

Read Murray v. Burt, No. 09-CV-1150-WJ/RHS, see flags on bad law, and search Casetext’s comprehensive legal database

Albuquerque Journal

Fast Money Breeds Lawsuit

By Scott Sandlin / Journal Staff Writer

ALBUQUERQUE, N.M. — In his lifetime, nationally acclaimed quarterhorse Dash Ta Fame was known for his fabulous temperament and speed.

Seven months after his death last July at age 22, his legacy is carried on by the 2,204 foals he sired — and a legal tug-of-war over the division of his sperm and income from his breeding fees.

Among his offspring who started on the track, more than 600 came back winners, earning a combined total of almost $17 million racing, according to the horse’s obituary on the American Quarter Horse Association website.

And Dash Ta Fame made millions of dollars for his owners through breeding fees and sales of his sperm. The horse’s breeding fee for 2009 was $6,500.

But a New Mexico couple who purchased 10 percent interest in the horse claims they are owed over $1 million because the horse was taken from their possession.

Both sides claim violations of the New Mexico Unfair Practices Act, as well as negligent misrepresentation by the other and related wrongdoing.

A jury began deliberating late Friday, after the judge apologized for taking so long with the verdict form and instructions.

“I’ve been doing this 17 years,” U.S. District Judge William P. “Chip” Johnson said, “and this is one of the most complicated (cases) I’ve ever had to deal with.”

The jury’s answer could have been worth millions of dollars. But after more than five hours of deliberation, the jury of three men and five women unanimously agreed Saturday afternoon that neither side had proved what it was accusing the other of doing. It answered “no” to all the questions in the special verdict form.

But the case isn’t entirely over.

Still remaining are equitable claims related to the accounting and distribution of frozen semen at three different locations. Those will be decided by Johnson.

Saga starts in 1997

Dr. Janis Spencer Murray, a New Mexico veterinarian and owner with her husband, Mac, of MJ Farms, a breeding operation in Veguita, N.M., bought a 10 percent interest in Dash Ta Fame in 1997 from Bob Burt, a breeder in Sandy, Utah, and 90 percent owner of the horse.

The Murrays sued Burt and his wife in 2009 in federal court, claiming damages from Burt’s “decision to disavow the (Murrays’) interest” and removal of the horse from their care, custody and possession.

In closing arguments late Friday, the Murrays’ attorney, John J. Kelly, suggested damages of at least $1.4 million to his clients, while Burt’s lawyer, Stevan Looney, said the Murrays are owed nothing and it is Burt who should be compensated for the frozen semen the Murrays kept that he didn’t know about until years after they’d begun collecting it.

Burt testified that he learned the Murrays were “harvesting semen behind my back” without his permission when he got a call from some irate purchasers. But he didn’t contact the Murrays, and instead “waited for a call … that never came.” Eventually, there was a face-to-face discussion in which Burt said he wanted the collection to stop, and the Murrays agreed.

Dash Ta Fame’s legacy will continue when the court sorts out the remaining frozen sperm. Some of it is at the Murrays’ farm, some is in Texas and some is in California. A portion of the available semen has an equine virus breeders want nothing to do with, but vets say it can be used in some circumstances, such as with mares who’ve been inoculated for the virus.

Trial testimony indicated growing international markets for frozen semen in Brazil, Italy and possibly Australia.

Right to live in N.M.?

The critical issues for the plaintiffs were whether Murray was cheated out of her right to have the horse “stand” or live at her Socorro County farm during breeding season for the rest of his life, and whether Burt failed to disclose that there was a co-owner when he moved the horse to a California vet after the 2009 breeding season and then not return him in 2010 or 2011.

For the defense, the answer was a simple “no” to the matter of the right to have the horse stand in New Mexico, and there is a counterclaim against the Murrays by Burt and his wife.

The claims were governed by both Utah and New Mexico state laws, even though the case was in federal court because the parties live in different states, and the amount in controversy met the jurisdictional requirements.

Kelly told the jury in closing that at issue are the terms of two contracts — one the 1997 buy-in on Dash Ta Fame, and secondly 15 years of annual breeding contracts between Murray and Burt that they had begun four years before Murray bought an interest in the horse.

The requirement of “standing” the stallion at the Murrays’ farm is not in writing, Kelly said, but that doesn’t mean it wasn’t valid.

“You’ve got to decide from the testimony based on the credibility of the witnesses,” he said.

The picture painted by plaintiffs was that Burt had a need for money to pay the U.S. government in 1997 but insisted on cash and wanted no trace of it. Murray paid $40,000 in cash with the understanding that the horse would “stand” at MJ Farms, according to the plaintiffs.

“At the time this was done, Burt made a promise the horse could stay there,” Kelly told the jury.

Looney said Burt had made no such promise.

“There’s not a single document that says Dash Ta Fame could stand with Janis Murray for the rest of his life,” he said.

The California vet to whose care the horse was moved in 2010 had dealt with the Murrays involving frozen semen, and they had never mentioned being part owners, he said.

“This case really comes down to credibility,” Looney said. “Who do you believe? Given the witnesses … I think there’s only one answer.”
— This article appeared on page A1 of the Albuquerque Journal

ALBUQUERQUE, N.M. — In his lifetime, nationally acclaimed quarterhorse Dash Ta Fame was known for his fabulous temperame …