01

PRACTITIONERS GUIDE TO LIVESTOCK SEQUESTRATIONS
ALISON M. ROWE Alison Rowe Equine Legal Services, P.C. 1716 Briarcrest Drive, Suite 300 Bryan, Texas 77802 DAVID K. WAGGONER The Waggoner Law Firm P.O. Box 875 Hillsboro, Texas 76645
State Bar of Texas AGRICULTURAL LAW COURSE 2009 May 14-15, 2009 Lubbock CHAPTER 5
Professional & Horse Industry Activities Brazos Valley Young Lawyers Association, President (2008 to present) Brazos County Bar Association, Member Texas State Bar Animal Law Section, Member Texas Bar Agriculture Law CLE Planning Committee (2008 to present) College of the State Bar of Texas, Member American Quarter Horse Association, Life Member Texas Thoroughbred Association, Life member Stock Horse of Texas, Member American Stock Horse Association, Member Ellis County Equine Association, Member Thoroughbred Owners and Breeders Association, Member The Racing Game, Consultant American Horse Council, Member American Veterinary Medical Law Association, Member Rotary, International Service Director (2005-2006, 2006-2007) Publications & Presentations Equine Law Blog (http://equinelaw.alisonrowe.com), creator, author and editor (2007 to present) Practitioners Guide to Livestock Sequestrations South Texas College of Law Animal Law Society (Apr. 2009) Credit Management for Horse Businesses in Tough Times, The Texas Thoroughbred (Mar./Apr. 2009) Owner and Trainer Profit Sharing Agreements, The Texas Thoroughbred (Mar./Apr. 2009) Do Trainers Have a Lien on Horses for Unpaid Training Fees? The Texas Thoroughbred (Nov./Dec. 2008) Enforcing Equine Liens in Texas, The Texas Thoroughbred (Mar./Apr. 2008) Equine Liens, The Texas Thoroughbred (Nov./Dec. 2007) Liens for Services to Horse Owners, Texas Bar Journal (Nov. 2007) How to Avoid Legal Issues at Auction," The Texas Thoroughbred (Sept./Oct. 2007) "How to Protect Your Interests When Purchasing a Horse at Auction" New York Thoroughbred Breeders Inc., Fasig-Tipton Sales Pavilion, Saratoga Springs, New York (Aug. 2007) Bringing Your Dog to a Horse Show, American Quarter Horse Journal (July 2007) Legal, Business, and Tax Issues For Race Horse Owners, Thoroughbred Owners and Breeders Association New Owners Seminar, Lone Star Park, Grand Prairie, Texas (Apr. 2007) LLC or LP? Choose the Right Entity for Your Horse Business to Reduce Liability Exposure and Minimize Taxes, The Texas Thoroughbred (Mar./Apr. 2006) Tax Issues For Horse Owners, American Horse Council Regional Meeting, Austin (Texas Nov. 2006) Legal, Business, and Tax Issues For Race Horse Owners, Texas Thoroughbred Association Annual Conference, Horseshoe Bay, Texas (July 2005) Legal, Business, and Tax Issues For Race Horse Owners, Thoroughbred Owners and Breeders Association New Owners Seminar, Turf Paradise, Phoenix, Arizona (Dec. 2004)
Alison McCormack Rowe Alison Rowe Equine Legal Services, P.C. (Partner) Principal Office: 1716 Briarcrest Drive Suite 300 Bryan, Texas 77802 (979) 691-7333 alison@alisonrowe.com EDUCATION J.D. Cornell University 2001 B.A., Summa Cum Laude Southwestern University (Majors: German & International Studies) LICENSURE & CERTIFICATION State Bar of Texas, 2001 All federal district courts in Texas, 2003 PERSONAL Alison McCormack Rowe was raised in Ellis County, Texas, where her family has farmed and ranched for five generations She lives in Bryan, Texas and is married to Frederick Earle Rowe, IV.
DAVID K. WAGGONER
The Waggoner Law Firm
103 West Elm Street 321 N. 12th Street Hillsboro, TX 76645 Corsicana, TX 75110 Ph: (254) 580-0265 Ph: (903) 874-1000 Fax: (254) 580-0266 Fax: (903) 874-1108 WaggonerLawFirm@aol.com
BIOGRAPHICAL INFORMATION
EDUCATION & TRAINING
BS (Animal Science), Texas Tech University MS (Animal Science), Virginia Tech University MBA, George Washington University JD, Texas Tech University Senior Executive Development Program, Carnegie Mellon University Mediation Certificate Program, National Mediation Academy Advanced Officer Course, U.S. Army
MEMBERSHIPS & PROFESSIONAL ACTIVITIES

Agricultural Law Course, State Bar of Texas, Co-Chair, 2007 - 2009 Agricultural Law Committee, State Bar of Texas, Chairman, 2002 State Bar of Texas Memberships: The College of the State Bar of Texas, Endowment Fund Scholar Pro Bono College of the State Bar of Texas Real Estate & Probate Section Alternative Dispute Resolution Section Texas Bar Foundation, Life Fellow International Stockmans Educational Foundation, Legal Advisor and Secretary/Treasurer American Registry of Professional Animal Scientists, Member Council for Agricultural Science & Technology, Member American Agricultural Law Association, Scholarship Committee, 2004 Animal Agriculture Alliance, Member National Cattlemens Beef Association, Member Texas FFA Foundation Board of Directors, Secretary Texas 4-H Youth Foundation Board of Directors, Legal Advisor and Trustee Texas and Southwestern Cattle Raisers Association, Member Texas Farm Bureau, Farm Lead Program, Charter Member, 2008 Houston Livestock Show & Rodeo, Junior Steer Show, Assistant Superintendent Deans Advisory Council, College of Agricultural Sciences and Natural Resources, Texas Tech University, 2004 2007 Hill County Bar Association, President, 2006 - 2007
PROFESSIONAL EXPERIENCE
Legal counsel for family-owned, real estate title insurance company operating in the counties of Hill, Kaufman, Johnson, and Navarro. Represent a broad constituency of commercial and residential lenders in preparation of loan documents, construction matters, workouts, and foreclosures. Mediate a wide range of agricultural and court-appointed disputes. Adjunct Professor, Texas Tech University, and Visiting Fellow, National Defense University
Practitioners Guide to Livestock Sequestrations
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TABLE OF CONTENTS
I. II. INTRODUCTION ............................................................................................................................................. 1 TYPES OF LIVESTOCK LIENS THAT MAY GIVE RISE TO SEQUESTRATION ACTION.................... 1 A. Stable Keepers Lien............................................................................................................................. 1 B. Stock Breeders Lien............................................................................................................................. 1 C. Feed Lot Operators ............................................................................................................................... 2 D. Veterinarians, Farriers, and Horse Trainers .......................................................................................... 2 E. Registered Livestock............................................................................................................................. 2 ACTIONS TO REGAIN POSSESSION OF LIVESTOCK WHEN LIEN IS ASSERTED ............................. 2 SEQUESTRATION IS ANCILLARY PROCEEDING TO LAWSUIT ........................................................... 3 WHEN IS WRIT OF SEQUESTRATION AVAILABLE?............................................................................... 3 APPLICATION FOR SEQUESTRATION ....................................................................................................... 3 THE HEARING................................................................................................................................................. 4 THE ORDER ..................................................................................................................................................... 4 APPLICANTS BOND...................................................................................................................................... 4 WRIT OF SEQUESTRATION.......................................................................................................................... 4 PLAINTIFFS RIGHT TO REPLEVY.............................................................................................................. 5 DEFENDANTS RIGHT TO REPLEVY.......................................................................................................... 5 DEFENDANT MAY FILE MOTION TO......................................................................................................... 6 ACTION FOR WRONGFUL SEQUESTRATION........................................................................................... 6 PRIORITY OF MULTIPLE LIENS .................................................................................................................. 6 HOW TO AVOID SEQUESTRATION AND LIENS ALTOGTHER.............................................................. 7 PLAINTIFF'S ORIGINAL PETITION & APPLICATION FOR WRIT OF SEQUESTRATION........................................................................................................... 9 AFFIDAVIT OF [PLAINTIFFS NAME] ............................................................................ 14 ORDER FOR ISSUANCE OF WRIT OF SEQUESTRATION............................................ 17 PLAINTIFFS MOTION TO REDUCE BOND AMOUNT ................................................. 19 WRIT OF SEQUESTRATION.............................................................................................. 22 PLAINTIFFS MOTION FOR LEAVE TO REPLEVY ON SEQUESTRATION BOND .................................................................................................................................... 24 MOTION TO DISSOLVE WRIT OF SEQUESTRATION .................................................. 26 BOARDING AGREEMENT................................................................................................. 28
III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI.
APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H
The references to various statutes and codes used in this paper are based upon the cases in which they are contained. As used in this paper, words such as he, she, him, and his are intended to include both the masculine and feminine genders, unless specifically stated otherwise or when obvious in context. When the context requires, singular nouns and pronouns include the plural. i
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PRACTITIONERS GUIDE TO LIVESTOCK SEQUESTRATIONS

INTRODUCTION Across the agricultural sector, involuntary statutory liens are quite common. For instance, in a typical jurisdiction, one can identify inter alia a harvesters lien for feed, a stock breeders lien, a stable keepers lien, a laborers lien, and a farm landlords lien to name a few. 1 Such liens can be either possessory or nonpossessory. II. TYPES OF LIVESTOCK LIENS THAT MAY GIVE RISE TO SEQUESTRATION ACTION One common situation that gives rise to the need for a livestock sequestration is when a service provider asserts a lien on animal(s) for unpaid fees. In this situation, either another creditor or the owner of the livestock might use a sequestration action to regain possession of the animal(s) from the purported lien holder in possession of the livestock, until the respective possessory rights can be judicially determined. Texas law provides liens for two specific types of services applicable to livestock owners: 1) the stable keepers lien,2 which secures payment for boarding or grazing services; and 2) the stock breeders lien, which secures payment for breeding services. The stable keepers lien also applies to an animal fed in confinement for slaughter, and thus can also be asserted by feedlot operators. 3 A. Stable Keepers Lien The Texas stable keepers lien, also known as an agisters lien, is a statutory lien that applies when one party leaves its horses or other livestock in the care of another for the purpose of boarding or grazing. 4 The lien is possessory in nature, which means that the lien holder may hold the livestock until nonpayment persists, and can sell the livestock to which the lien attaches to collect the amount owed. There are no documents required to be signed or filed to support this lien. If no boarding agreement exists concerning remuneration, a stableman is entitled to the reasonable I.
value of his services. 5 Thus, the amount of the lien in such circumstances would represent the reasonable value of the boarding services in the area or county where the services were provided. This will also depend on whether the service provided was stall board, pasture board, full care, etc. Foreclosure of the stable keepers lien does not require the filing of a lawsuit or intervention of the county sheriffs office. However, the lien holder must carefully follow Section 70.005 of the Texas Property Code during the foreclosure process, or risk having the sale later overturned. Section 70.005 requires the foreclosing lien holder to: 1) have possession of the animal(s) for 60 days following the date the charges accrue; 2) make a written request to the owner for payment of the unpaid bill; and 3) if the charges are not paid on or before the 11th day after the lien holder makes written demand for payment, the lien holder may sell the livestock at a public sale subsequent to providing the owner 20 days written notice. Texas law is vague as to what, specifically, constitutes a public sale as referenced in the stock breeders and stable keepers lien statutes. This clearly would not include a sale by private treaty to a third party without the possibility of others bidding on the livestock. It is generally accepted that a public livestock auction or horse auction qualifies as a public sale under current statutes. B. Stock Breeders Lien An owner or keeper of a stallion, jack, bull, or boar confined to be bred for profit has a preference lien on the offspring of the animal for the amount of charges for the breeding services, unless the owner or keeper misrepresents the animal by false pedigree. 6 In the case of a stallion, the lien would be on the foal resulting from the breeding, but would not extend to the mare that was serviced by the stallion. The stock breeders lien remains in force for 10 months from the day that the offspring is born, however the lien may not be enforced until five months after the date of birth of the offspring. The lien exists during these time parameters, regardless of whether the mare or foal is still in the possession of the stallion owner. Foreclosure on a stock breeders lien must comply with Sections 54.044 and 54.045 of the Texas Property Code, and does not require a court order. However, due to the non-possessory nature of this lien, a lien holder would be well-advised to obtain a court order before attempting to foreclose on the lien. Although this lien
ONeal v. Knippa, 19 S.W. 1020 (Tex. 1892); Crenshaw v. Bishop, 143 S.W. 284 (Tex. Civ. App.Fort Worth 1911).
6 5
See Statutory Agricultural Lien Rapid Finder Chart, State of Texas, Updated 2008, Elizabeth R. Springsteen and Jennifer Fiser, The National Agric. Law Center, Univ. of Arkansas School of Law.
2 3 4
TEX. PROP. CODE 70.003. See TEX. PROP. CODE 70.005(c).
See Barclay v. Burge. 245 S.W.2d 1021 (Tex. Civ. App. Beaumont 1952). 1
TEX. PROP. CODE 70.201.
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is rarely enforced, the stallion owner would presumably seize the foal produced by the stallion, usually with the assistance of a repossession company or the sheriffs department should they agree to accompany the lien holder (such assistance usually not achievable without a court order). Before selling the foal at public auction, the stallion owner must first provide the mare owner a written notice complying with Section 54.045 of the Texas Property Code. C. Feed Lot Operators A feed lot operator with a lien under 70.003 may enforce said lien in any manner authorized by Sections 9.610-9.619 of the Texas Business & Commerce Code. This means that a feedlot operator may also sell the cattle subject to the lien at a commercially viable private sale. It is recommended that a feeding agreement contain a provision that the feedyard acquires an agisters lien, and that said lien is a security agreement as defined by the Uniform Commercial Code (UCC).
nonpayment, even though no statutory lien exists. This may still result in the necessity to obtain a writ of sequestration to regain possession; and 2) livestock owners need to be aware of lien laws in other states when transporting their livestock across state lines in the possession of a service provider. E. Registered Livestock Most breed registries have standing policies and procedures relating to registered livestock purchased in a lien foreclosure. Depending on the breed registry, the buyer will be asked to provide certain items such as a notarized affidavit stating that the stableman has complied with the law relating to the foreclosure; a copy of the written notice of the foreclosure sale; a copy of the statute by which the foreclosure was conducted; and a notarized bill of sale from the stableman. III. ACTIONS TO REGAIN POSSESSION OF LIVESTOCK WHEN LIEN IS ASSERTED When a service provider refuses to relinquish livestock until the full amount owed is paid, the local sheriffs department and the Texas & Southwestern Cattle Raisers Association theft investigators will rarely assist the livestock owner in regaining possession of his livestock due to the civil nature of the dispute. Without the aid of law enforcement, a livestock owner may pursue the following courses of action to regain possession of the livestock and to seek damages: 1) Pay the amount owed and remove the livestock, develop a written statement indicating that you dispute the charges and payment of the bill is solely to regain possession of the livestock and shall not act as an accord and satisfaction. You can then bring a conversion and possible breach of contract action against the service provider for the amount of the wrongful charges. **Note** It is not advisable to offer a service provider a check backed by insufficient funds or to stop payment on a check after possession of the livestock is achieved. This may result in the livestock owner being arrested and prosecuted by the local county attorney under the hot check or theft of service laws. Unless the livestock owner has been told he is not welcomed on the property, it is advisable to simply go to where his livestock is being held and peacefully attempt to remove the livestock. Remember, once the service provider loses possession, their lien is extinguished.
2
D. Veterinarians, Farriers, and Horse Trainers Unlike several other states, Texas does not currently provide veterinarians or farriers with a lien on livestock to secure payment for professional services rendered. However, the stablemans lien does provide a farrier or veterinarian who had a horse in his or her care a lien on the animal for costs of boarding the animal. Many horse trainers in Texas mistakenly believe that they have a statutory trainers lien on the horses they train. However, unless a trainer has a written security agreement signed by the owner providing a lien on the horses in the event of nonpayment of training fees, the trainer cannot hold or sell the owners horse when training fees remain unpaid. In Texas and many other states, a trainer who both boards and trains a horse has a lien on the horse for unpaid charges related to the care, but not the training fees or other training charges unrelated to the care (such as entry fees and hauling costs). 7 Therefore, if an owner is current on his board and care charges, a trainer must allow an owner to obtain his horse and cannot sell the horse to satisfy unpaid training fees. If an owner is delinquent on both boarding and training fees, the trainer can hold the horse until the board is paid, and even sell the horse to satisfy the board bill but not the training bill. Two important points worth mentioning here are: 1) a service provider may attempt to hold livestock for
See Davis v. Sewell, 696 S.W.2d 247, 248 (Tex. App.Texarkana 1985, no writ) (holding that a person hired to both train and board horses had a lien arising from unpaid charges for the care).
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2)
3)
4)
Pay either nothing or the portion of the bill that is not in dispute, and then bring suit against the service provider for conversion and ask the court to order the livestock returned to the owner. The problem with this approach is that the livestock owner will be required to pursue a full trial on the merits in order for the possessory issues to be determined. This affords the service provider time to sell the livestock in a lien sale or hide the livestock. Thus, a quick trial date is desirable in this instance. File a conversion suit and request a temporary injunction to prohibit the service provider from foreclosing on the lien, absconding with the animal(s), or treating the animal(s) in such a way that would decrease their value. For a writ of injunction to be issued, the livestock owner will be required to produce a cash bond, typically for the full value of the livestock. In an injunction scenario, possession will remain with the service provider until a hearing is held on the possession dispute (typically a trial of the matter). Subsequently, the owner will have little say as to how the livestock are cared for during the pendency of the action. Finally, file a lawsuit for conversion asking for the return of the animal(s) that includes an application for a writ of sequestration. A writ of sequestration will enable the owner to regain possession of the livestock within a short time, without a trial on the merits, and maintain possession until the lawsuit is appropriately disposed.
to conserve property and merely affects possession. 9 Consequently, possession pursuant to the writ is lawful and is not considered conversion. 10 V. WHEN IS WRIT OF SEQUESTRATION AVAILABLE? In the context of livestock, a writ of sequestration is available to a plaintiff in a suit if the suit is for possession of livestock or related to foreclosure or enforcement of a lien or security interest in livestock, and a reasonable conclusion may be drawn that there is immediate danger that the party in possession of the livestock will conceal, dispose of, ill-treat, or destroy the livestock or remove them from the county during suit. 11 Defendants use of the livestock while the suit is pending is not enough for a writ to be granted. Plaintiff must fear that the livestock will be sold, mistreated, killed, or concealed. Mere depreciation in the value of the livestock during the pendency of the suit will unlikely constitute injury that would warrant the issuance of a writ of sequestration. 12 VI. APPLICATION FOR SEQUESTRATION In the beginning of a suit, or at any time during the proceeding, the plaintiff may file an application for a writ of sequestration. 13 The application for a writ of sequestration may be included in plaintiffs original petition. A suit must be filed or pending before an application for a writ of sequestration may be filed. A writ of sequestration issued before the commencement of a suit is considered void. 14 To review an example of an original petition for conversion and application for writ of sequestration in an equine case, please refer to Appendix A. The application for a writ of sequestration shall be made under oath and must set forth the following: (1) the specific facts stating the nature of the plaintiffs claim; (2) the amount in controversy, if any; and (3)
IV. SEQUESTRATION IS ANCILLARY PROCEEDING TO LAWSUIT Sequestration is not a cause of action, but rather, a remedy available after a suit has been filed, but before a judgment has been obtained. Its purpose is to prevent the destruction or disposal of property until the court can reach a final judgment. Sequestration differs from a garnishment as its use is not appropriate where the property remains in the hands of a third party. Sequestration also differs from an attachment because, unlike an attachment, a sequestration requires that the plaintiff have an interest in the property being sequestered. 8 A sequestration is also different from an attachment because it does not affect title to the property, nor create a lien. It is used
Stephen M. Loftin, Extraordinary Remedies, State Bar of Texas 24th Annual Advanced Civil Trial Course, Chapter 9, 13, 13 (2001). Smart v. Texas, American Bank/Galleria, 680 S.W.2d 896, 898 (Tex.App.Houston [1st Dist.] 1984, no writ).
11 10
TEX. CIV. PRAC. & REM. CODE 62.001 (Vernon
1997). Commercial Acceptance Trust v. Parmer, 241 S.W.586 (Tex.Civ.App.Fort Worth 1922, writ ref.)(involving depreciation of motor vehicle).
13 14 12
TEX.R.CIV.P. 696.
Id. 3
Watt v. Parlin & Orendorff Co., 98 S.W.428 (Tex.Civ.App.1906, no writ).
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the facts justifying issuance of the writ. 15 The person signing the application and affidavit must have personal knowledge and must state facts that would be admissible into evidence. The facts may be stated based upon information and belief if the grounds of such certainty are specifically stated. 16 To review an example of a plaintiffs affidavit in an equine sequestration action, please see Appendix B. The application must also state grounds for issuing the writ and include a description of the property to be sequestered with such certainty that it may be identified and distinguished from property of like kind, giving the value of each article of property and the county in which it is located. 17 The description of the livestock should be as specific as possible. This can become difficult depending on the number of animals that are at issue. If possible, it should include a physical description (height, color, markings), sex, registered name, age, registration number, and any eartags, brands, or other distinguishable characteristics by which the animal(s) may be identified. Clerical errors in the affidavit, bond, writ of sequestration, or officers return may be amended according to the courts terms if an application is made to the court and notice is given to the opponent. The affidavit may only be corrected for clerical errors and may not be amended to change or add grounds. 18 THE HEARING A hearing will be held before the court to determine whether the writ will be issued and the amount of the applicants sequestration bond must be specified. This hearing is typically held ex parte, 19 with only the applicants attorney present. THE ORDER A written court order is required for a writ of sequestration to be issued. The court must make specific findings of fact to support the writ and must describe the livestock to be sequestered with such certainty that it may be identified from other like property. The order must also specify the amount of bond required of the plaintiff and the amount of bond required of the defendant to replevy. One order may create the issuance of several writs at the same time or in succession, and in different counties. 20 For an
15
example of a sequestration order, please see Appendix C. IX. APPLICANTS BOND No writ will be issued until the plaintiff has filed a bond, with sufficient surety or sureties approved by the court clerk, in the amount fixed by the courts order. 21 This amount typically reflects the apparent fair market value of the livestock at issue. It is meant to protect the defendant and adequately compensate her in the event it is decided that the sequestration was wrongfully issued. 22 Once the court sets the bond, either party may file a motion to increase or decrease the amount of the bond. For an example of a Motion to Reduce Bond Amount, please refer to Appendix D. Upon notice to the other party, which may be less than 3 days, the court will conduct a hearing to determine the sufficiency of the bond. 23 The writ will not be issued until the full amount of bond is posted in the courts registry. Obtaining a sequestration bond can be extremely difficult. Often, bonding companies will not underwrite civil court bonds of any kind because they perceive their risk of payout as too high. Typically, the surety will require 100 percent cash collateral (money order, cashiers check, or irrevocable letter of credit from a bank), which effectively defeats the purpose of hiring a bonding company. Because bonding companies are not easy to find, an applicant who cannot afford the full amount of bond should contact an attorney who specializes in sequestrations. Such attorneys usually have a relationship with an insurance company that will help manage bonds for their firm. The applicants ability to obtain a bond and/or to do without the bond money during the entire pendency of the lawsuit is one of the major factors that will determine whether it makes economic sense to pursue a sequestration. X. WRIT OF SEQUESTRATION Texas Rule of Civil Procedure 699 sets forth the requirements for a writ of sequestration. The writ must be directed To the Sheriff or any Constable, not naming any county, and shall direct him to take the animal(s) as described in the application into his possession and to keep them until further order from the court or until the property is replevied. The Defendant must be served with a copy of the writ of sequestration, the application, affidavits, and
VII.
VIII.
TEX. CIV. PRAC. & REM. CODE 62.022 (Vernon TEX. R. CIV. P. 696. Id. TEX. R. CIV. P. 700. Tex. R.Civ.P. 696. Id. 4
1997).
16 17 18 19 20
21 22
Tex.R.Civ.P. 698.
Tex.R.Civ.P. 696; Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex.1965).

23
Tex.R.Civ.P. 698.
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orders of the court. The writ shall prominently display on its face the following language: To ____________, Defendant You are hereby notified that certain properties alleged to be claimed by you have been sequestered. If you claim any rights in such property, you are advised: YOU HAVE THE RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT. 24 For an example of a writ of sequestration in an equine case, please see Appendix E. When the court issues an order granting Writ of Sequestration, the clerks office will prepare and issue the writ and forward all service papers to the Sheriff/Constable for service on Defendant and seizure of the specified livestock. Once the livestock is seized, the sheriff will hold the animal(s) until either party replevies the animals or receives a further order of the court. An officer who executes a writ of sequestration shall care for and manage in a prudent manner the sequestered property he retains in custody. 25 If the officer entrusts sequestered property to another person, the officer is responsible for the acts of that person relating to the property. 26 The officer is liable for injuries to the sequestered property resulting from his neglect or mismanagement or from the neglect or mismanagement of a person to whom he entrusts the property. 27 The officer will charge a fee for daily care of the livestock. For horses, approximately $10 per day per horse is customary. This fee does not seem large when only one or two horses are involved. However, when 20 to 50 horses or more are at issue daily care costs can escalate quickly. Thus, it is advisable that the applicant replevy the livestock as soon as possible. Also, regardless of the type of livestock being sequestered
Tex.R.Civ.P. 699; Tex.Civ.Prac.& Rem. Code Ann. 62.023 (Vernon 1997). TEX.CIV.PRAC.&REM. CODE ANN. 62.061(a) (Vernon 1997).
26 27 25 24
(such as competitive show horses), the animals will likely be turned out in open space with only water and hay provided. The officer is required to provide reasonable care and protection, but no luxuries are required during the sequestration. XI. PLAINTIFFS RIGHT TO REPLEVY Plaintiff may replevy (or regain possession of) the livestock if defendant has not done so within 10 days after levy and service of the writ of sequestration. Plaintiff must first make a bond payable to the defendant in the sum of not less than the amount fixed by the court, with sufficient surety or sureties. The court will often allow a plaintiffs sequestration bond to act as plaintiffs replevy bond, but this is not automatic. Thus, it is advisable that the plaintiff file a motion for leave to replevy and ask the court to order that the sequestration bond act as plaintiffs replevy bond. For an example of a Motion for Leave to Replevy on Sequestration Bond, please refer to Appendix F. The conditions of a plaintiffs bond are found in Rule 708 of the Texas Rules of Civil Procedure. Plaintiffs conditions on replevy are that the plaintiff will maintain the livestock in the same condition as when the animal(s) are replevied, or he will pay the value or diminution value of the livestock if the court so orders. Rule 708 and the existing interpretive authority do not require the plaintiff to maintain the livestock in the county of suit or even in the State of Texas. Furthermore, the rule contains no restriction on the sale of the livestock. 28 Because the court may order the livestock returned to the defendant after a trial on the merits, it is recommended that a plaintiff who wishes to sell the livestock during the pendency of the lawsuit file a motion for leave to sell the animal(s) and ask the court to enter an order specifically allowing such sale. The court may require the plaintiff to escrow the proceeds in the courts registry following the sale. An argument can be made that livestock are perishable goods under Rule 710 of the Texas Rules of Civil Procedure, and thus may be sold. When animals are sequestered there is always a risk that they may become sick or even die during the sequestration. Similarly, competitive show animals or breeding stock may greatly diminish in value during a long period of inactivity. XII. DEFENDANTS RIGHT TO REPLEVY The defendant has the right to replevy the sequestered livestock any time prior to judgment, by posting a bond with the clerk. The replevy bond must represent an amount equal to the value of the sequestered property, or to the amount of the plaintiffs
28
Id. at 62.061(b). Id. at 62.061(c). 5 Id.
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claim plus one years interest and costs, whichever is less. 29 Defendant may replevy provided the livestock are still in the custody of the officer. 30 Defendants replevy bond must be conditioned on the defendant not moving the livestock out of the county, not ill-treating, injuring, or destroying the animals, and that he will maintain the livestock in the same condition as when replevied. 31 XIII. DEFENDANT MAY FILE MOTION TO DISSOLVE A defendant may apply to vacate, dissolve, or modify the writ of sequestration by filing a sworn written motion with the court. 32 To review an example of a Motion to Dissolve, please see Appendix G. The motion must specifically admit or deny each of the facts found by the court in the order authorizing the writ of sequestration, or explain why such facts found by the court cannot be explained or denied. 33 Filing the motion to dissolve will stay any further proceedings under the writ until the motion to dissolve is heard by the court. Reasonable notice of the hearing may be less than three days. 34 The burden is then placed on the plaintiff to prove the grounds relied upon for issuance of the writ of sequestration. Otherwise, following a hearing, the writ will be dissolved. If the writ is dissolved, the party seeking dissolution of the matter may recover damages and reasonable attorneys fees involved in terminating the writ. Upon the dissolution of the writ, the underlying action proceeds as if the writ had not been issued. ACTION FOR WRONGFUL SEQUESTRATION A sequestration is considered a conversion of property when the defendant shows that a fact stated in the application or supporting affidavit is untrue. 35 The writ must be dissolved before a claim for wrongful XIV.
sequestration can be made. 36 If the writ of sequestration is dissolved, a claim for wrongful sequestration must be brought as a compulsory counterclaim. 37 A defendant may recover damages sustained as a result of a wrongful sequestration. These damages include the value of the livestock sequestered, consequential damages, the value of lost use and profit, and punitive damages. 38 Punitive damages and damages for lost profits cannot be recovered against the sequestration bond because they are not covered by the bond. 39 Exemplary damages must be properly claimed, 40 and the defendant must state that the sequestration as wrongful, malicious, and procured without probable cause. 41 The defendant can prove this by showing that the plaintiff knew, or should have known at the time of the sequestration, that he had no right to title or possession of the property. 42 Attorneys fees are recoverable during an action for wrongful sequestration. 43 These damages will not be awarded if the plaintiff can show by a preponderance of the evidence a bona fide error in his specific allegations and that reasonable procedures were used to avoid the error. 44 If the plaintiff dismisses the underlying suit after replevying the livestock, he automatically forfeits his bond to the defendant. 45 XV. PRIORITY OF MULTIPLE LIENS If an individual borrows money to purchase livestock, lending institutions typically require the borrower to sign an agreement securing the livestock as collateral on the note. Should the borrower default
Dennis v. First State Bank of Texas, 989 S.W.2d 22 (Tex.App.Fort Worth 1998, no writ).
37 36
TEX.CIV.PRAC. & REM. CODE 62.044(a) (Vernon
1997). See Commercial Credit Equipment Corp. v. Elliot, 414 S.W.2d 35, 43-45 (Tex.Civ.App.Eastland 1967, writ refd n.r.e.).
38
29 30 31 32
TEX. R.CIV.P. 696. TEX.R.CIV.P. 701. TEX. R.CIV.P. 702.
39 40
See id. Grimes v. Shaw, 2 Tex.Civ.App. 20, 21 S.W. 718
(1893). See Barfield v. Brogdon, 560 S.W.2d 787, 790 (Tex.Civ.App.Amarillo 1978, writ refd n.r.e). See Mobile Home Brokers, Inc. v. Colvin, 566 S.W.2d 68, 69 (Tex.Civ.App.Beaumont 1978, no writ).
43 42 41
TEX.CIV.PRAC. & REM. CODE ANN. 62.041(a) (Vernon 1997); TEX.R.CIV.P. 712a.
33 34
Id. See Id; see also TEX.CIV.PRAC. & REM. CODE
62.402. See Fred Mercer Dry Goods Co. v. Fikes, 211 S.W.2d 830, 832 (Tex.Civ.App.Dallas, 1919, no writ); Multi-Moto Corp. v. ITT Commercial Finance Corp., 806 S.W.2d 560 (Tex.App.Dallas 1990, writ denied). 6
35
TEX.CIV.PRAC. & REM. CODE 62.045(a) (Vernons See id. at 62.045(b).
1997).
44 45
See Burnett Trailers, Inc. v. Polson, 387 S.W.2d 692, 694-95(Tex.Civ.App.San Antonio 1965, writ refd n.r.e.).
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on the note, the bank can repossess the livestock and sell the animal(s) at a foreclosure proceeding. Should an animal owner stop paying the bank plus any service providers (such as stablemen and pasturers), this affords the lender a lien under the promissory note and the boarding facility a lien under a statutory stablemans lien. It is important to highlight here that the local law of the jurisdiction where collateralized livestock are located generally governs the perfection and priority of an agricultural lien on farm products. Since involuntary statutory liens involving agricultural operations can differ from state to state, lending institutions seeking priority of their security interest in out-of-state livestock will need to pay close attention to financing statements and security agreements. Courts in Texas and other states that have adopted the Uniform Commercial Code will likely hold that a possessory stablemans lien is superior to the banks lien, regardless of which was first in time. Section 9.333 of the UCC and its Official Comment under the Texas version of the UCC states that the possessory lien has priority over a security interest unless the possessory lien is created by statute and expressly provides otherwise...the possessory lien takes priority, even if the statute has been construed judicially to make the possessory lien subordinate." 46 In other words, even if the UCC Financing Statement 47 is filed before the boarding facility took possession of the livestock, the banks lien is still subordinate to the stablemans lien. However, it is relevant to note that some pre-1930 cases, written before Texas adopted the UCC and the Property Code, have held that a stablemans lien is subordinate to a banks prior-filed security interest. A court in a recent case found that a prior-filed UCC-1 was superior to a possessory stablemans lien, citing Blackford v. Ryan, 61 S.W. 161 (Tex. Civ. App. 1901)(a banks pre-existing security interest is superior to an agisters lien when a horse was placed in a stable without the bank's knowledge). Older cases generally interpret the Texas common law agisters lien and not the statutory lien under Section 70.003 of the then nonexistent Property Code. These cases were also decided prior to Texas adopting the UCC. Although the courts should defer to the plain language of the UCC, these
older cases exist and have not been overruled or superseded by a Texas appellate case to-date. HOW TO AVOID SEQUESTRATION AND LIENS ALTOGTHER Livestock owners and service providers should place all terms of a service agreement in writing. The contract needs to specify what the service provider has been hired to do with the livestock, where they will maintain (board) the livestock, and the expected payment for the care and services provided. Livestock owners should ask all service providers to submit a detailed billing statement at least once per month, and recognize that timely payment of all bills is important. For an example of a boarding / care agreement refer to Appendix H. Livestock owners should not entrust their livestock to anyone whom they do not have full faith and confidence, and should maintain close contact with the person or company in possession of the livestock. Similarly, service providers need to check references to ensure they are not accepting a client who lacks the financial wherewithal to pay for all services rendered. XVI.
46 47
TEX. BUS. & COMM. CODE 9.333(Vernon 2001).
As defined elsewhere, a financing statement is a written document (Form UCC-1) containing the name(s) and addresses of the debtor and secured party, indicating the types or describing the items of collateral, and including the signature of the debtor. 7
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APPENDIX A
[STYLE OF THE CASE] PLAINTIFF'S ORIGINAL PETITION & APPLICATION FOR WRIT OF SEQUESTRATION [Party] (Plaintiff) files this Original Petition and Application for Writ of Sequestration, and would respectfully show the Court the following: Discovery Control Plan 1. {190.3/190.4}. Parties, Venue and Jurisdiction Plaintiff intends to conduct discovery under Level {2/3} of Texas Rules of Civil Procedure
2.
Plaintiff, an individual, is a resident [Kentucky County] in the Commonwealth of
Kentucky. Defendant is an individual resident of the State of Texas who may be served with process at his residence at [123 Street Name, Whitesboro, Grayson County, Texas, 77777]. 3. A majority of the events giving rise to the causes of action herein arose or occurred in
Grayson County, Texas, making venue proper in Grayson County, Texas. The amount in controversy is within the minimum jurisdictional limits of this Court. Facts 4. Plaintiff attaches the Affidavit of [Plaintiff], attached hereto as Exhibit A in support of all
facts not apparent in the record. 5. This case involves Plaintiffs right to possession and disposition of four (4) American
Quarter Horses belonging to Plaintiff. The four horses (collectively referred to herein as the Horses) include: a) registered American Quarter Horse named Fun Run, AQHA No. XXXXXXX, a four-year-old sorrel stallion; b) registered American Quarter Horse named Don Quixote, AQHA No. XXXXXXX, a three-year-old bay stallion; c) a 2006 American Quarter Horse filly (solid sorrel with star on forehead) being the progeny of stallion named Saint Freckles; and d) a 2006 American Quarter Horse colt (liver
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chestnut with 2 or 3 high stockings and a wide blaze or bald face) being the progeny of stallion named San War Path. 6. Plaintiff bred all of the Horses except for Fun Run, which Plaintiff purchased from a third-
party in October of 2005. Plaintiff borrowed money to purchase Fun Run, and is currently repaying that loan. The Horses were bred and intended to be used as competitive reining horses. 7. In or around May 2007, Plaintiff and Defendant entered into an oral agreement whereby
Defendant would sell the Horses on behalf of Plaintiff in exchange for a commission on the sale. Before Plaintiff agreed to leave the horses with Defendant, Defendant represented to Plaintiff that he could get the Horses sold in one month or less. Because the Horses were to be left in Defendants possession for such a short time, the parties did not enter into a boarding agreement or any other agreement ancillary to the consignment agreement. As such, Plaintiff never agreed to pay Defendant for board, training, or any other service other than a commission on the sale of the Horses, when and if they were sold. 8. Pursuant to the parties consignment agreement, Plaintiff left the Horses in the possession of
Defendant at 123 Street Name in Whitesboro, Texas. The collective fair market value of the Horses at the time Defendant took possession is believed to be around $100,000.00. 9. To the best of Plaintiffs knowledge, Defendant still has possession of the Horses, and they
are still located at 123 Street Name, Whitesboro, Grayson County, Texas. 10. At some point after Plaintiff left the Horses with Defendant, it became apparent that For example, several people have been interested in
Defendant was not trying to sell the Horses.
purchasing the Horses, but Defendant refused to show the Horses to any interested parties. 11. In the Spring of 2008, Plaintiff called Defendant and informed him that, because he had
breached the consignment agreement by not attempting to sell the Horses, he was going to have his Horses picked up so that he could get them sold some other way. Defendant refused to release the Horses, claiming a lien on the horses for training services. 1
While a lien for the care of horses exists under certain circumstances, there is no statutory lien under Texas law for horse training services. See Section 70.003 of the Texas Property Code (lien on livestock for charges for the care). 10
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12.
In or around May 2008, Defendant sent Plaintiff a bill for approximately $15,000.00 for
training. Plaintiff never agreed to pay for training and Defendant told an associate of Plaintiff in Texas that the horses hadnt been ridden. At no other time during the approximate 12 month period that Defendant had possession of Plaintiffs horses did Defendant ever send Plaintiff a bill for board, training, or any other service. 13. Defendant told Plaintiff that if he did not pay the $15,000.00 training bill, he would file a
lien on the Horses and sell them to cover the training bill. 14. Plaintiff offered to give Defendant the horse named Don Quixote, to cover his expenses
for boarding the Horses for the first few monthsthe amount of time Plaintiff reasonably believed Defendant would have possession had he not breached the agreement. Plaintiff believes that Don Quixote was worth between $15,000 and $20,000 at the time Defendant took possession. However, Defendant refused to take Don Quixote and still refused to relinquish possession of the Horses until the $15,000.00 training bill was paid. 15. The two-year old horses were originally eligible for AQHA registration, but Plaintiff has not
been able to register the two-year old horses because the DNA testing necessary for registration cannot be completed due to Defendants wrongful withholding of the Horses. The AQHA has informed Plaintiff that if he does not send in DNA kits on said horses by July 28, 2008, the said horses may lose their eligibility for AQHA registration. 16. Before Plaintiff hired the undersigned, Plaintiff called the Grayson County Sheriffs office
and asked them to seize the Horses from Defendant. The sheriff advised Plaintiff that a court order would be necessary. 17. On June 26, 2008, the undersigned sent Defendant a letter demanding the release of the
Horses. However, Defendant did not respond to the letter. GROUNDS FOR WRIT OF SEQUESTRATION 18. Defendant has informed Plaintiff that if he does not pay the $15,000.00 training bill, he
would file a lien on the Horses and sell them to cover the training bill. Thus, Plaintiff has reason to
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believe that Defendant will try to conceal, sell, move, or harm the Horses if Court intervention is not granted. 19. Plaintiff lives in Kentucky and has no way, other than by order of this Court, of ensuring
that the Horses are not sold, concealed, injured, or removed by Defendant. 20. Plaintiff also has reason to believe that Defendant is an alcoholic, was recently arrested for
drunk driving, and no longer possesses a valid Texas drivers license. Thus, Plaintiff is concerned that Defendant may not be properly caring for the Horses. 21. If Plaintiff does not regain possession of the Horses, he may lose the ability to register the
two-year-olds with the AQHAthus greatly diminishing their market value. Also, Plaintiff borrowed funds to purchase the horse named Fun Run. Plaintiff must replevy the Horses so that he may apply sales proceeds to the bank note. Count 1 CONVERSION 22. As a result of Defendants wrongful withholding and conversion of the Horses, which
Plaintiff owns, Plaintiff has been damaged by being deprived of the fair market value of the Horses in Defendants possession, for which Plaintiff hereby sues. 23. Defendants wrongful possession of the Horses for over one year without riding or training
the Horses has damaged Plaintiff because the Horses market value has decreased due to lack of training, promotion, and marketing. 24. Plaintiff has also been damaged by Defendants obstruction to register the two-year-old
horses he owns and which he bred. If the two-year-olds cannot be registered with the AQHA, the fair market value of said horses will be severely reduced. 25. Plaintiff has also been damaged by Defendants conversion of prize money won by
Plaintiffs horses while they were in Defendants possession. Count 2 BREACH OF CONTRACT 26. The parties entered into an enforceable agreement performable within one year. Pursuant to
said agreement, Defendant was to sell Plaintiffs horses within one month or less in exchange for a
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commission on the sale. Defendant breached the agreement by refusing to show the Horses to prospective buyers. 27. Plaintiff has been damaged by Defendants breach of contract because Plaintiff has not been
able to sell the Horses for over one year. In the mean time, Plaintiff is paying the note he used to purchase the horse named Fun Run with personal funds, but is not able to use sales proceeds to pay off the note. Attorneys Fees 28. Plaintiff is entitled to recover reasonable and necessary attorneys fees under Texas Civil
Practice & Remedies Code Chapter 38 because this is a suit for breach of contract. 29. Plaintiff retained counsel, who presented Plaintiffs claim to Defendants duly authorized
agents on June 26, 2008. Approximately 30 days have elapsed since the claim was presented, and Defendant has not relinquished possession of the Horses. Exemplary Damages 30. Plaintiff will show that the conduct of Defendant has been willful and malicious, and for
which the law allows the imposition of exemplary damages. Prayer For these reasons, Plaintiff asks that the Court issue citation for Defendant to appear and answer, and that Plaintiff be awarded a judgment that: a. Permanent possession of the Horses be awarded to Plaintiff; b. Without notice to Defendant, the Court issue a writ of sequestration; c. The Court set a date and time for a hearing on this application for a writ of sequestration; d. The Horses be delivered to Plaintiff if the Defendant fails to replevy the Horses within ten days after the levy of the writ and service of the notice on Defendant; e. Judgment against the Defendant for its actual damages in a sum within the jurisdictional limits of this Court; f. Reasonable attorneys fees be awarded; g. Exemplary damages to be determined by the trier of fact; h. Pre-judgment interest as provided by law be awarded; i. Post-judgment interest as provided by law from the date of judgment until paid be awarded; j. Costs of suit be awarded; and k. All other relief to which Plaintiff may be justly entitled.
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APPENDIX B
AFFIDAVIT OF [PLAINTIFFS NAME] COMMONWEALTH OF KENTUCKY COUNTY OF FAYETTE
1.
Before me, the undersigned notary, on this day personally appeared [Plaintiff], the affiant,
a person whose identity is known to me. After I administered an oath to affiant, affiant testified: 2. My name is [Plaintiff]. I am over 18 years of age, of sound mind, and capable of making
this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 3. I own the following horses (the Horses), which I believe are in [Defendants] possession
at 123 Street Name, Whitesboro, Grayson County, Texas: a) registered American Quarter Horse named Fun Run, AQHA No. XXXXXXX, a four-year-old sorrel stallion; b) registered American Quarter Horse named Don Quixote, AQHA No. XXXXXXX, a three-year-old bay stallion; c) a 2006 American Quarter Horse filly (solid sorrel with star on forehead) being the progeny of stallion named Saint Freckles; and d) a 2006 American Quarter Horse colt (liver chestnut with 2 or 3 high stockings and a wide blaze or bald face) being the progeny of stallion named San War Path. 4. I bred all of the horses except for Fun Run, which I purchased from a third-party in
October of 2005. I borrowed money to purchase Fun Run, and am currently repaying said loan. The horses were bred and intended to be used as competitive reining horses. 5. In or around May 2007, [Defendant] and I entered into an oral agreement whereby
[Defendant] would sell the Horses for me in exchange for a commission on the sale. Before I agreed to leave the Horses with [Defendant], [Defendant] represented to me that he could get the Horses sold in one month or less. 6. I never agreed to pay [Defendant] for board, training, or any other service other than a
commission on the sale of the Horses, when and if they were sold. 7. In or around May 2007, I left the horses in the possession of [Defendant] at 123 Street
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Name in Whitesboro, Texas. I believe the fair market value of the Horses at the time [Defendant] took possession was around $100,000.00. 8. To the best of my knowledge, [Defendant] still has possession of the Horses and that they
are still located at 123 Street Name, Whitesboro, Grayson County, Texas. 9. At some point after I left the Horses with [Defendant], it became apparent that [Defendant]
was not trying to sell the Horses. For example, several people have been interested in purchasing the Horses, but [Defendant] refused to show the horses to any interested parties. 10. [Defendant] showed Fun Run at the NRHA Futurity in 2007, and informed me that he did
not get a check. I later learned that the horse named Fun Run won a check of $890.56, but [Defendant] apparently pocketed the check. 11. In the Spring of 2008, I called [Defendant] and informed him that, because he had
breached the consignment agreement by not attempting to sell the Horses, I was going to have the Horses picked up so that I could get them sold in another way. [Defendant] refused to release the Horses, claiming a lien on the Horses for training services. 12. In or around May 2008, [Defendant] sent me a bill for approximately $15,000.00 for
training. I never agreed to pay for training and did not know he was supposedly training my horses. Furthermore, I do not believe [Defendant] even rode the horses because [Defendant] told an associate of mine in Texas that the horses hadnt been ridden. At no other time during the approximate 12 month period that [Defendant] had possession of the Horses did [Defendant] ever send me a bill for board, training, or any other service. 13. [Defendant] told me that if I did not pay the $15,000.00 training bill, he would file a lien
on the Horses and sell them to cover the training bill. 14. Although I did not believe I owed [Defendant] money, in order to quickly resolve the
situation so that I could retrieve the Horses, I offered to let [Defendant] keep the horse named Don Quixote to cover his expenses for boarding the Horses for the first few monthsthe amount of time I reasonably believed [Defendant] would have possession had he not breached the agreement. I believe the
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horse named Don Quixote was worth approximately $15,000 to $20,000 when [Defendant] took possession. However, [Defendant] refused to take Don Quixote and still refused to relinquish possession of the Horses until the $15,000.00 training bill was paid. 15. The two-year old horses were originally eligible for AQHA registration, but I have not
been able to register said horses because the DNA testing necessary for registration cannot be completed due to [Defendants] wrongful withholding of the horses. The AQHA has informed me that if I do not send in DNA kits on said horses by July 28, 2008, the horses may lose their eligibility for AQHA registration. 16. Before I hired counsel, I called the Grayson County Sheriffs office and asked them to
seize the Horses from [Defendant]. The sheriff advised me that they could not seize the Horses without a court order. 17. On June 26, 2008, my counsel sent [Defendant] a letter demanding the release of the
Horses. However, [Defendant] did not respond to the letter. 18. [Defendant] has informed me that if I do not pay the $15,000.00 training bill, he would
file a lien on the Horses and sell them to cover the training bill. Thus, I have reason to believe that [Defendant] will try to conceal, sell, move, or harm the Horses if Court intervention is not granted. 19. I live in Kentucky and have no way, other than an order of this Court, of ensuring that the
Horses are not sold, concealed, injured, or removed by [Defendant]. ________________________________ [Affiant name]
SWORN AND SUBSCRIBED before me on this _______ day of _____________, 2009. ___________________________________ Notary Public, Commonwealth of Kentucky
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APPENDIX C
[STYLE OF CASE] ORDER FOR ISSUANCE OF WRIT OF SEQUESTRATION 1. At the hearing on Plaintiffs Application for Writ of Sequestration in this cause, Plaintiff
appeared by and through his attorney of record. The hearing was conducted without notice to Defendant. 2. The Court finds that this cause is still pending in this Court, and that Plaintiff is seeking
damages from Defendant and the return of the following four (4) American Quarter Horses (the Horses) belonging to Plaintiff: (a) Registered American Quarter Horse named Fun Run, AQHA No. XXXXXXX, a four-year-old sorrel stallion; (b) Registered American Quarter Horse named Don Quixote, AQHA No. XXXXXXX, a three-year-old bay stallion; (c) a 2006 American Quarter Horse filly (solid sorrel with star on forehead) being the progeny of stallion named Saint Freckles; and (d) a 2006 American Quarter Horse colt (liver chestnut with 2 or 3 high stockings and a wide blaze or bald face), being the progeny of stallion named San War Path. All four horses were last known to be in Defendants possession and located at 123 Street
3.
Name, Whitesboro, Grayson County, Texas. 4. The collective fair market value of the Horses at the time Defendant took possession is
believed to be around $100,000.00. 5. Defendant or other party in possession may conceal, injure, or remove the Horses from their
current location in Whitesboro, Grayson County, Texas, during the pendency of this suit. Defendant refused to surrender possession of the Horses when specifically and rightfully requested by Plaintiff to do so. This refusal by Defendant constitutes an intentional concealment of the Horses and therefore
jeopardizes Plaintiffs interest as owner of the Horses. It is therefore ORDERED that a writ of sequestration be issued, conditioned that Plaintiff must post a bond in the amount of $______________, payable to Defendant, conditioned and approved as required by law. It is further ORDERED that Defendant may replevy the Horses by posting a bond in the amount of $_______________, payable to Plaintiff, conditioned and approved as required by law.
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SIGNED ON ___________________, 2009.
______________________________________ JUDGE PRESIDING
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APPENDIX D
[STYLE OF CASE] PLAINTIFFS MOTION TO REDUCE BOND AMOUNT Plaintiff respectfully asks the Court to reduce the amount of the sequestration bond on the Order for Issuance of Writ of Sequestration, signed by the Court on July 25, 2008, from $100,000.00 to $15,000.00. Introduction 1. Defendant is holding Plaintiffs horses based on a lien for training in the amount of
$15,000.00. Therefore, the bond amount of $100,000.00 on the Order for Issuance of Writ of Sequestration in the above-referenced matter is above what is necessary to protect Defendant from any harm he may sustain as a result of the sequestration. Also, the amount of the bond is not related to the potential damages to be suffered by Defendant in the law suit. Therefore, Plaintiff respectfully asks the Court to reduce Plaintiffs bond amount from $100,000.00 to $15,000.00. Facts 2. This case involves Plaintiffs right to possession and disposition of four (4) American
Quarter Horses (the Horses) belonging to Plaintiff. 3. In or around May 2007, Plaintiff and Defendant entered into an oral agreement whereby
Defendant would sell the Horses for Plaintiff in exchange for a commission on the sale. Before Plaintiff agreed to leave the horses with Defendant, Defendant represented to Plaintiff that he could get the Horses sold in one month or less. Plaintiff never agreed to pay Defendant for board, training, or any other service other than a commission on the sale of the Horses, when and if they were sold. 4. Pursuant to the parties consignment agreement, Plaintiff left the Horses in the possession
of Defendant at 123 Street Name in Whitesboro, Grayson County, Texas. The collective fair market value of the Horses at the time Defendant took possession is believed to be around $100,000.00. 5. At some point after Plaintiff left the Horses with Defendant, it became apparent that
19
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Defendant was not trying to sell the Horses. For example, several people have been interested in purchasing the horses, but Defendant refused to show the Horses to any interested parties. 6. In the Spring of 2008, Plaintiff called Defendant and informed him that, because he had
breached the consignment agreement by not attempting to sell the Horses, he was going to have the Horses picked up so that he could get them sold by another method. Defendant refused to release the Horses, claiming a lien on the horses for training services. 2 7. In or around May 2008, Defendant sent Plaintiff a bill for approximately $15,000.00 for
training. Defendant told Plaintiff that if he did not pay the $15,000.00 training bill, he would file a lien on the Horses and sell them to cover the training bill. Thus, Plaintiff has reason to believe that Defendant will try to conceal, sell, move, or harm the Horses if Court intervention is not granted. 8. Plaintiff lives in Kentucky and has no way, other than by order of this Court, of ensuring
that the Horses are not sold, concealed, injured, or removed by Defendant. 9. Plaintiff also has reason to believe that Defendant is an alcoholic, was recently arrested for
drunk driving, and no longer possesses a valid Texas drivers license. Thus, Plaintiff is concerned that Defendant may not be properly caring for the Horses. 10. If Plaintiff does not regain possession of the Horses, he may lose the ability to register the
two-year-old horses with the AQHAthus greatly diminishing their market value. Also, Plaintiff borrowed funds to purchase the horse named Fun Run. Plaintiff must replevy the Horses so that he may apply sales proceeds to apply toward the bank note. 11. On July 25, 2008, Plaintiff filed its Original Petition and Application for Writ of
Sequestration. The Court set Plaintiffs bond and Defendants replevy bond on the writ at $100,000.00, the approximate value of the horses on the date Defendant took possessionover one year ago. Argument and Authorities 12. A amount of the bond on a writ of sequestration shall be set by the Court so that it provides
While a lien for the care of horses exists under certain circumstances, there is no statutory lien under Texas law for horse training services. See Section 70.003 of the Texas Property Code (lien on livestock for charges for the care). 20
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sufficient surety or sureties . . . conditioned that the plaintiff will prosecute his suit to effect and pay to the extent of the penal amount of the bond all damages and costs as may be adjudged against him for wrongfully suing out such writ of sequestration. TEX. R. CIV. P. 698. See also Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex. 1965)(The sequestration bond [required by Rule 698] guarantees the payment of damages and costs in case it is decided that the sequestration was wrongfully issued). 13. In this case, Plaintiff owns all the horses that are the subject of the writ of sequestration.
Defendants only claimed interest in the Horses is a bill for training in the amount of $15,000.00although these charges were never authorized and do not give rise to a possessory lien. Thus, Defendant will be adequately protected from the potential harm, if any, arising from the sequestration if Plaintiff posts a bond in the amount of $15,000.00. Prayer For these reasons, Plaintiff asks the Court to reduce the amount of Plaintiffs bond on the Order for Issuance of Writ of Sequestration from $100,000.00 to $15,000.00 and grant Plaintiff all other relief to which Plaintiff is entitled.
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APPENDIX E
[STYLE OF CASE] WRIT OF SEQUESTRATION TO THE SHERIFF OR CONSTABLE OF ANY COUNTY WITHIN THE STATE OF TEXAS, GREETINGS: Plaintiff has applied for and given bond for a writ of sequestration in this case, which is now pending in this Court. You are therefore commanded to take into your possession, if it is found in your county, the following property: (a) Registered American Quarter Horse named Fun Run, AQHA No. XXXXXXX, a four-year-old sorrel stallion; (b) Registered American Quarter Horse named Don Quixote, AQHA No. XXXXXXX, a three-year-old bay stallion; (c) a 2006 American Quarter Horse filly (solid sorrel with star on forehead) being the progeny of stallion named Saint Freckles; and (d) a 2006 American Quarter Horse colt (liver chestnut with 2 or 3 high stockings and a wide blaze or bald face) being the progeny of stallion named San War Path. All four horses were last known to be in [Defendants] (Defendants) possession and located at 123 Street Name, Whitesboro, Grayson County, Texas. You are commanded to keep the property safe and preserved, subject to further order of this Court, unless it is replevied. Herein fail not, but have you this writ, with your return showing how you have executed it, before this Court on or before the Monday next after the expiration of twenty (20) days from the date the writ is served. You are to display to the interested persons present at the time of levy the following: To: [Defendant], Defendant: You are hereby notified that certain properties alleged to be claimed by you have been sequestered. If you claim any rights in such property, you are advised: YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE
A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE DISSOLVE THIS WRIT.
COURT
A MOTION TO
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ISSUED on __________________, 2009.
______________________________________ [Clerk], District Clerk Grayson County, Texas
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APPENDIX F
[STYLE OF CASE] PLAINTIFFS MOTION FOR LEAVE TO REPLEVY ON SEQUESTRATION BOND Facts 1. On July 25, 2008, Plaintiff filed Plaintiffs Original Petition and Application for Writ of
Sequestration. Plaintiffs Application for Writ of Sequestration sought to recover possession of four (4) horses belonging to Plaintiff from Defendant. 2. 3. On September 10, 2008, the Court set the bond on the sequestration at $15,000.00. On September 15, 2008, Plaintiff deposited a bond of $15,000.00 payable to Defendant
into the registry of this Court. 4. On September 16, 2008, the Grayson County Sheriff levied the writ and served notice
upon Defendant. The four horses at issue are thus now in the possession of the Grayson County Sheriffs Department. Motion for Leave to Replevy 5. Pursuant to Rule 708 of the Texas Rules of Civil Procedure, when the Defendant fails to
replevy the property within ten (10) days after the levy of the writ and service of notice on Defendant, the officer having the property in possession shall at any time thereafter and before final judgment, deliver the same to the Plaintiff upon his giving bond payable to Defendant in a sum of money not less than the amount fixed by the Courts order. 6. 7. The tenth day after the levy of the writ will be September 26, 2008. Thus, Plaintiff respectfully requests that the Court enter an order granting Plaintiff leave to
replevy the horses on or after September 27, 2008, if Defendant does not post bond and replevy the horses on or before September 26, 2008. 8. As Plaintiff has already posted a bond payable to Defendant in amount of $15,000.00,
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Plaintiff respectfully requests that the Court allow such bond to act as both Plaintiffs sequestration bond under Rule 698 and Plaintiffs replevy bond under Rule 708 in the instance that Plaintiff replevies the horses. Prayer For these reasons, Plaintiff asks that the Court enter an order that: a. b. The horses be delivered to Plaintiff if the Defendant fails to replevy the Horses within ten (10) days after the levy of the writ and service of the notice on Defendant; The $15,000.00 bond Plaintiff has deposited into the Courts registry on the sequestration represents both the sequestration bond under Rule 698 and the replevy bond as contemplated by Rule 708 of the Texas Rules of Civil Procedure; and All other relief to which Plaintiff may be justly entitled.
c.
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APPENDIX G
[STYLE OF CASE] MOTION TO DISSOLVE WRIT OF SEQUESTRATION Comes Now, [Party], Defendant in the above entitled and number Cause and moves the Court to dissolve the Writ of Sequestration issued in this Cause on [Date]. In support of this Motion, Defendant would respectively show the Court the following: 1) By Order for Issuance of Writ of Sequestration signed by the Court on [Date], the Court
directed the issuance of a Writ of Sequestration for the following property, to wit: (a) Registered American Quarter Horse named Fun Run, AQHA No. XXXXXXX, a four-year-old sorrel stallion; (b) Registered American Quarter Horse named Don Quixote, AQHA No. XXXXXXX, a three-year-old bay stallion; (c) a 2006 American Quarter Horse filly (solid sorrel with star on forehead) being the progeny of stallion named Saint Freckles; and (d) a 2006 American Quarter Horse colt (liver chestnut with 2 or 3 high stockings and a wide blaze or bald face) being the progeny of stallion named San War Path. 2) Defendant attaches affidavits to this motion as Exhibits [letters] to establish facts not
apparent from the record and incorporates them by reference. 3) The Clerk issued a Writ of Sequestration on the 16th day of September, 2008, which was
served upon Defendant on the 16th day of September 2008, which noticed Defendant that he had the right to regain possession of the property by filing with the Court a motion to dissolve the Writ, which the Defendant is now doing. Defendant/Movant specifically denies the truth of the following findings
contained in the Order of the Court. 4) 5) State facts denied by Defendant. Attorney Fees. Defendant/Movant is entitled to recover reasonable and necessary attorney
fees for having to defend a wrongful sequestration claim. 6) Exemplary Damages. Defendant/Movant will show that the conduct of Plaintiff have been
willful and malicious, and for which the law allows the imposition of exemplary damages. Explain.
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WHEREFORE, PREMISES CONSIDERED, Defendant/Movant requests that Plaintiff be notified to appear, prove the grounds for issuance of the Writ of Sequestration, and if Plaintiff does not provide such proof, the Court enter its Order Dissolving the Writ and its underlying Order in directing the officer having custody of the property seized pursuant to the Writ, to return the same immediately to Defendant/Movant, [Defendant] at [123 Street Name, Whitesboro, Grayson County, Texas without fee or charges and for judgment against Plaintiff for Defendants actual damages in a sum within the jurisdictional limits of this Court, for reasonable attorneys fees, exemplary damages to be determined by the trier of fact, prejudgment interest as provided by law, post-judgment interest as provided by law from the date of judgment until paid, costs of suit, and for such other and further relief deemed fair and just by the Court at law or by equity.
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APPENDIX H
BOARDING AGREEMENT THIS AGREEMENT (the Agreement) made and entered into as of the [DAY OF MONTH] day of [MONTH], [YEAR], by and between [NAME OF FARM] (the Farm) and the undersigned, whose name and address is shown below (the Owner). In consideration of the following premises and mutual covenants, the parties hereto agree as follows: A. AGREEMENT TO BOARD Farm will board and provide the services provided herein for such [BREED] horses (the Horse[s]) owned by Owner as Owner shall deliver to Farm, subject to the terms of this Agreement. Owner agrees to provide Farm with all information concerning the Horse(s) to be boarded using the Horse Information Sheet, attached as Exhibit A and incorporated herein by this reference. B. BOARD RATE Owner agrees to pay the current daily board rate charged by Farm for each Horse for as long as each Horse remains in Farms care and custody. The initial daily board rate charged is as hereinafter set forth: $_________ barren mares; $________ broodmare with suckling until weaned; $________ weanlings; $________ yearlings; $_______ yearling breaking; $_______ foaling fee; and $________ sales preparation. These rates may be modified by Farm upon thirty (30) days prior written notice to Owner. In addition to the board rates as shown above, Owner agrees to pay all expenses incurred by the Farm in the care, keep and maintenance of each Horse, including such veterinarian, farrier, transportation, advertising and other charges as may be incurred for each Horse. By agreement of Owner, the lien and security interest set forth in herein, below, shall extend to any veterinarian, farrier, transportation or any other charges advanced by Farm on behalf of Owner with respect to any Horse(s). Owner shall immediately deliver a photocopy of [BREED REGISTRY] Certificate(s) for the Horse(s) to Farm. C. BILLING Farm shall furnish to Owner, on a monthly basis, a statement of the board and expenses incurred with respect to each Horse. Owner agrees to pay such statement within ten (10) days of the date of such statement. A one and one-half percent (11/2%) per month interest, bookkeeping and collection charge will be added to any sum that is not paid within ten (10) days of the billing date. The monthly statement shall be sent by the Farm to the Owners address listed in this Agreement. D. INSURANCE Owner is solely responsible for maintaining any and all insurance on each Horse. If the Horse is presently insured, Owner shall provide the information requested on Exhibit A. If the Horse is not presently insured, Owner shall immediately notify Farm in writing of insurance coverage for the Horse if such is later obtained. If Owner fails to provide such information, Farm may assume that the Horse boarded herein is uninsured. E. RISK OF LOSS AND INDEMNITY Farm shall not be liable for accident, injury, disease, theft or death of any Horse while in its custody. Owner will indemnify and hold harmless Farm for any accident, injury, disease, theft or death of any Horse. F. DUTIES, RIGHTS AND AUTHORITY Farm shall have all reasonable authority and discretion with respect to the keep, maintenance, care, management and supervision of each Horse. In addition, Owner shall have the authority to choose the
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veterinarians Owner would prefer that Farm utilize to treat and care for each Horse, and further authority in the event such designated veterinarians are not readily available to take whatever action Farm, its agents and employees deem best for the care of each Horse, including, but not limited to, surgical procedures and all other veterinary treatment it elects to authorize. Farm agrees to attempt to contact Owner at the telephone numbers shown below regarding extraordinary veterinarian decisions or actions to be taken. It is specifically understood, however, that failure to contact Owner shall in no way abrogate the authority hereinabove granted. G. TERM This Agreement shall remain in force unless and until it is terminated by either party upon one months written notice. Provided, however, the terms and provisions hereinabove stated shall apply until each Horse leaves the care of Farm and all board and other charges are paid in full by Owner. The Owner agrees to promptly remove any and all Horses upon the conclusion of this Agreement. H. I. ASSIGNMENT This Agreement cannot be assigned by Owner without the express written consent of Farm. SECURITY INTEREST Owner hereby grants and conveys to Farm a security interest in the Horses to secure the payment of all costs (including attorneys fees and costs of collection) associated with the Horses and hereby appoints Farm as Owners irrevocable attorney-in-fact to execute and file such UCC financing statements as are necessary to perfect said security interest. This Agreement or a copy thereof may serve as a financing statement. This Agreement does not affect and is in addition to the rights of Farm which arise pursuant to Section 70.003 of the Texas Property Code, et seq., or other applicable law. J. CHOICE OF LAW AND CHOICE OF VENUE The parties agree that this Agreement was executed in [NAME OF COUNTY] County, Texas. Jurisdiction and venue for any action arising as a result of this Agreement shall be in [CITY], [COUNTY NAME] County, Texas and this Agreement shall be construed pursuant to the laws of the State of Texas. K. ATTORNEYS FEES AND COSTS In the event Farm retains attorneys to attempt to collect any sums due it hereunder, Farm shall be entitled to recover from Owner its reasonable attorneys fees and costs expended, in addition to any other remedies. L. TEXAS EQUINE LIABILITY STATUTE WARNING: UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE AND REMEDIES CODE), AN EQUINE PROFESSIONAL IS NOT LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT IN EQUINE ACTIVITIES RESULTING FROM THE INHERENT RISKS OF EQUINE ACTIVITIES.
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M.
SIGNATURES FARM:
OWNER:
[NAME OF FARM] ___________________________________ [INDIVIDUAL OWNER NAME] [or, if Owner a corporate entity] [NAME OF OWNER ENTITY] Its:________________________________ [TITLE/POSITION OF PERSON SIGNING] By:________________________________ [PERSON SIGNING FOR OWNER] By:________________________________ [PERSON SIGNING FOR FARM]
Its:________________________________ [TITLE/POSITION OF PERSON SIGNING]
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PRACTITIONERS GUIDE TO LIVESTOCK SEQUESTRATIONS

MEMBERSHIPS & PROFESSIONAL ACTIVITIES

Practitioners Guide to Livestock Sequestrations

APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H

Practitioners Guide to Livestock Sequestrations

PRACTITIONERS GUIDE TO LIVESTOCK SEQUESTRATIONS

TEX. PROP. CODE 70.003. See TEX. PROP. CODE 70.005(c).

TEX. PROP. CODE 70.201.

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

TEX. CIV. PRAC. & REM. CODE 62.001 (Vernon

Watt v. Parlin & Orendorff Co., 98 S.W.428 (Tex.Civ.App.1906, no writ).

Practitioners Guide to Livestock Sequestrations

Tex.R.Civ.P. 696; Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex.1965).

Practitioners Guide to Livestock Sequestrations

Id. at 62.061(b). Id. at 62.061(c). 5 Id.

Practitioners Guide to Livestock Sequestrations

TEX.CIV.PRAC. & REM. CODE 62.044(a) (Vernon

TEX. R.CIV.P. 696. TEX.R.CIV.P. 701. TEX. R.CIV.P. 702.

See id. Grimes v. Shaw, 2 Tex.Civ.App. 20, 21 S.W. 718

Id. See Id; see also TEX.CIV.PRAC. & REM. CODE

TEX.CIV.PRAC. & REM. CODE 62.045(a) (Vernons See id. at 62.045(b).

Practitioners Guide to Livestock Sequestrations

TEX. BUS. & COMM. CODE 9.333(Vernon 2001).

Practitioners Guide to Livestock Sequestrations

Plaintiff, an individual, is a resident [Kentucky County] in the Commonwealth of

Practitioners Guide to Livestock Sequestrations

Defendant was not trying to sell the Horses.

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

SIGNED ON ___________________, 2009.

______________________________________ JUDGE PRESIDING

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

ISSUED on __________________, 2009.

______________________________________ [Clerk], District Clerk Grayson County, Texas

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Practitioners Guide to Livestock Sequestrations

Its:________________________________ [TITLE/POSITION OF PERSON SIGNING]

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