Justice v. Vercher

• Decision Date: 31 August 2022
• Docket Number: A169933
• Citation: 321 Or.App. 439,518 P.3d 131
• Court: Oregon Court of Appeals
• Parties: JUSTICE, an American Quarter Horse, BY AND THROUGH his Guardian, Kim MOSIMAN, Plaintiff-Appellant, v. Gwendolyn VERCHER, Defendant-Respondent.

321 Or.App. 439

JUSTICE, an American Quarter Horse, by and through his Guardian, Kim Mosiman, Plaintiff-Appellant, v. Gwendolyn VERCHER, Defendant-Respondent.

A169933

Court of Appeals of Oregon

August 31, 2022

Argued and submitted September 2, 2020

Washington County Circuit Court 18CV17601; A169933 John S Knowles, Judge pro tempore.

Matthew Liebman, Animal Legal Defense Fund, argued the cause and fled the briefs for appellant. Also on the briefs were Christopher A. Berry, Animal Legal Defense Fund; Margaret H Leek Leiberan, Jensen and Leiberan; Matthew Hamity, Law Offce of Matthew Hamity; and Sarah Hanneken.

Geordie Duckler argued the cause for respondent. Also on the brief was Geordie Duckler, P.C. Lindsey Stallings and Conway Law fled the brief amicus curiae for Animal Law Professors. Richard L. Cupp, Jr., fled the brief amicus curiae pro se.

Julia E. Markley, Sasha A. Petrova, and Perkins Coie LLP fled the brief amici curiae for Robin L. Foster, Ph.D., CAAB, CHBC; Antonia J. Z. Henderson, Ph.D.; Tammy M. Donaldson, MS, Ph.D., CAAB; Nina Ekholm Fry, MSSC; Shawna Karrasch; Katherine Houpt, VMD, Ph.D., DACVB; Sharon Madere, CHBC; and Andrew Mclean, Ph.D.

Samantha J. Bayer and Mary Anne Cooper; and T. Beau Ellis and Vial Fotheringham LLP, fled the brief amici curiae for Oregon Farm Bureau Federation; and Oregon Cattlemen's Association and Oregon Dairy Farmers Association.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

As a matter of first impression, this case requires us to determine whether a horse has the legal capacity to sue in an Oregon court. Kim Mosiman, Executive Director of Sound Equine Options (SEO), filed a complaint naming a horse, Justice, as plaintiff, alleging Mosiman's legal authority to act as his guardian, and claiming negligence against his former owner, defendant Vercher.^[1] In this appeal, Mosiman challenges the trial court's grant of defendant's motion to dismiss. We conclude that only human beings and legislatively-created legal entities are persons with the capacity to sue under Oregon common law. Justice, ahorse, is neither a human being nor a legal entity and therefore lacks capacity to sue to vindicate ostensible rights in an Oregon court. Accordingly we affirm the trial court's judgment dismissing the complaint with prejudice.

In reviewing a motion to dismiss, "we recite the material facts as alleged in the complaint, drawing any reasonable inferences in the light most favorable to plaintiff, and review the trial court's decision for legal error." Greenleaf Auto Repair v. Ideal Auto Works, 318 Or.App. 865, 866, 509 P.3d 750 (2022).

In March 2017, defendant's neighbor contacted Oregon Horse Rescue to report concerns that defendant's horse, who defendant called Shadow but has since been renamed Justice, was underfed and emaciated. The neighbor persuaded defendant to seek veterinary care for her horse. The veterinarian who examined him concluded that he was emaciated and would need to be either housed in a stall or rehomed. Defendant voluntarily surrendered custody of her horse to SEO, and Mosiman transported him to an equine hospital for urgent care.

Justice was 300 pounds underweight, lethargic, weak, and had significant difficulty walking. His condition and course of recovery suggest that he had been malnourished for several months. He was placed on a refeeding protocol and treated for lice, rain rot, and a penile infection caused by prolapse and frostbite. Over the next several months in Mosiman's care, his physical condition improved, but he continued to exhibit behavioral distress. His penis remains prolapsed and will likely require partial amputation. As a result of his injuries, Justice will require special and costly care that he otherwise would not need, including unique sheltering needs, medications, and socialization training. The additional costs involved in caring for him will make finding a permanent home for him more difficult.

In July 2017, defendant pleaded guilty to first-degree animal neglect, ORS 167.330.^[2] Pursuant to her plea agreement, defendant agreed to pay restitution to SEO for the costs of Justice's care prior to July 6, 2017.^[3]

In August 2017, Mosiman created the Justice Equine Trust to provide for Justice's care for the remainder of his life. See ORS 130.185 (authorizing a settlor to create a trust to provide for the care of an animal that is enforced by a person appointed by the terms of the trust or by the court). Justice continues to reside at Sound Equine Options' training barn, and Mosiman remains responsible for his care.^[4]

In May 2018, Mosiman filed a complaint that named "Justice, an American Quarter Horse," as plaintiff and contained a single claim of relief for negligence per se. Tracking the elements of negligence per se, the complaint alleged that defendant violated ORS 167.330(1) by failing to provide minimum care^[5] for Justice, that he was injured as a result of that violation, that he is a member of the "class of persons" that ORS 167.330 was enacted to protect, and that his injuries are the type that ORS 167.330 was enacted to prevent. See Scheffel v. Oregon Beta Chapter of Phi Kappa Psi, 273 Or.App. 390, 415, 359 P.3d 436 (2015) (setting out elements of negligence per se). The complaint sought economic damages for costs of past and future care for Justice after July 6, 2017, along with noneconomic damages for his pain and suffering and reasonable attorney fees.

Defendant moved to dismiss the complaint on the grounds that a horse lacks legal capacity to sue, former ORCP 21 A(4) (2018), renumbered as ORCP 21 A(lXd) (2022), and that the complaint failed to state a claim, former ORCP 21 A(8) (2018), renumbered as ORCP 21 A(1)(h) (2022). Defendant argued that Justice is an animal and not a person or legal entity who may pursue a cause of action in court at all, let alone state a claim for negligence per se.

The trial court granted defendant's motion to dismiss with prejudice. In a written opinion, the court concluded that "a non-human animal such as Justice lacks the legal status or qualifications necessary for the assertion of legal rights and duties in a court of law" and observed that "[t]here are profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity that has the right to assert a claim in a court of law." The court posited that an appellate court could come to a different conclusion if it "wades into this public policy debate involving the evolution of animal rights," or the legislature could "balance the public policy implications of the relief sought by Justice and craft legislation that would grant an animal the right to sue in its name for specified damages in specific circumstances." The trial court, however, was "unable to take that leap."

On appeal, Mosiman continues to assert legal authority to act on behalf of the named plaintiff and asks this court to hold that he is a juridical person who may bring a common law tort claim to recover economic and non-economic damages. Mosiman contends that granting her request is within our power to modify the common law and is compelled by Oregon law, which, in her view, recognizes the substantive legal right of certain animals to be free from abuse and neglect, and the procedural legal right of those animals who have been abused or neglected to sue their offender as crime victims. Mosiman further contends that such a holding would be limited because it would apply only to those animals who must be afforded minimum care under Oregon's animal welfare statutes, ORS 167.305 to 167.390.

We first address Mosiman's authority to sue on behalf of the named plaintiff in this case. The complaint alleges that Mosiman is acting on behalf of Justice as his "guardian" because she is "the person responsible for Justice's care and well-being" and that she therefore represents his interests in this case pursuant to ORCP 27 A.^[6]Defendant contested Mosiman's status as a horse's guardian and the applicability of ORCP 27, but not as a basis for her motion to dismiss. Rather, defendant raised the issue in support of her request for attorney fees upon prevailing on the motion to dismiss. See ORS 20.105 (requiring a trial court to award reasonable attorney fees to a prevailing party upon a finding that there was no objectively reasonable basis for asserting the claim, defense, or ground for appeal against the party).

In response, Mosiman conceded that, as a horse, Justice lacks the legal capacity to sue independently, but argued that she is his de facto guardian^[7] and that, had the trial court disagreed, it could have appointed Mosiman as his guardian ad litem or fashioned another procedure for appointing Mosiman to represent his interests in this case.

The trial court concluded that there was "no objectively reasonable basis for naming *** Mosiman as the [g]uardian of Justice in this matter" and imposed attorney fees on that basis. Mosiman does not assign error to that ruling on appeal, and defendant does not ask us to affirm the trial court's ruling on the motion to dismiss on the alternative basis that Mosiman lacks capacity to sue on behalf of the named plaintiff. In Mosiman's view, the guardianship issue is "a red herring not properly at issue in this appeal and, if necessary, should be handled only on remand."

It is true that Mosiman's apparent lack of capacity to sue on the named plaintiffs behalf is not an impediment to reaching the merits of the trial court's ruling on the motion to dismiss. See Bobell v. Wagenaar, 106 Or. 232, 236 210 P 711 (1922) (a presumed incapacitated party's appearance without a duly appointed guardian does not deprive a court of jurisdiction); see...