RRR Farms, Ltd. v. American Horse Protection Ass'n, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: AMIDEI
• Citation: RRR Farms, Ltd. v. American Horse Protection Ass'n, Inc., 957 S.W.2d 121 (Tex. App. 1997)
• Decision Date: 06 November 1997
• Docket Number: No. 14-96-00551-CV,14-96-00551-CV
• Petition History: pet. denied
• Parties: RRR FARMS, LTD., Walking Horses of Virginia, Inc., Gilbert Miller, and Donnie May, Appellants, v. AMERICAN HORSE PROTECTION ASSOCIATION, INC., Appellee. (14th Dist.)

Page 121

957 S.W.2d 121

RRR FARMS, LTD., Walking Horses of Virginia, Inc., Gilbert Miller, and Donnie May, Appellants, v. AMERICAN HORSE PROTECTION ASSOCIATION, INC., Appellee.

No. 14-96-00551-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 6, 1997.

Rehearing Overruled Dec. 18, 1997.

Winston E. Cochran, Jr., Houston, Bruce Rose, Westchester, IL, for appellants.

Gregory R. Ave, Dallas, for appellee.

Before LEE, AMIDEI, and ROBERTSON, JJ. ^*

OPINION

AMIDEI, Justice.

This is an appeal from a summary judgment granted in favor of the American Horse Protection Association, Inc. (the Association), appellee. RRR Farms, Ltd., Walking Horses of Virginia, Inc., Gilbert Miller, and Donnie May, appellants, bring four points of error challenging the trial court's judgment. We affirm.

Appellants are involved in the breeding, raising, training, showing, and sale of Tennessee Walking Horses. The Tennessee Walker is a breed known for its high, quick steps and the arcing, broad strides made by the horse's forelegs. Because of its gait, the breed is prized as a saddle horse and has become a highly desirable show horse. According to appellants, the most valuable Tennessee Walkers are those that can perform the "big lick," an exaggeration of the horse's natural gait. A Tennessee Walker with this ability is the one that receives championship honors, the largest stud fees, and brings the best price at sale. Appellants claim that, without the "big lick," the horse is not "spectacular or showy" enough to draw spectators and bidders necessary to sustain the industry.

Only a small number of the horses naturally possess the ability to perform the "big lick," and therefore, the horses have been bred to enhance this trait. Because breeding a trait into a horse is a slow process, owners and breeders have also tried to produce the "big lick" through training. To aid in this training, trainers use certain artificial devices including pads, weighted shoes, and action devices. ¹ Many breeds train with these devices, but Tennessee Walkers are actually shown with action devices.

Apparently, there are two factions in the Tennessee Walking Horse industry: (1) the dominant "big lick" faction which consists of breeders, trainers, and fans who admire horses trained to perform with the "big lick" gait; and (2) the smaller "plantation" or "flat-shod" faction which consists of those who believe that the Tennessee Walker should be trained and equipped only to use the less showy gait that was characteristic of the horse when the breed was first developed. Appellants are members of the "big lick" faction. Appellants claim the Association primarily represents the "plantation" or "flat-shod" portion of the industry, and is helping that segment of the industry by filing suits against the Secretary of Agriculture.

Unfortunately, some members of the Tennessee Walking Horse industry began to engage in a practice known as "soring" to enhance the ability of the horse to perform the "big lick." Soring consists of applying an irritating substance or device to the lower part of the horse's forelegs or front feet so that when the horse walks, he suffers pain and draws his legs up high to escape the pain. See 15 U.S.C.A. § 1821(3) (1982). The result is the appearance of the horse performing the "big lick." The prevalence of soring increased and a public outcry began. According to appellants, the Association appeared in the midst of the outcry as an organization devoted to the well-being of all horses. Appellants claim that in reality, the Association is devoted to eliminating the Tennessee Walker as a show horse, or at least, eliminating the "big lick" faction in the industry.

The Association concentrated its efforts between 1966, the year of its inception, and 1970 on lobbying Congress for federal legislation outlawing the practice of soring. Due in large measure to the efforts of the Association, Congress adopted the Federal Horse Protection Act in 1970 (the Act). See 15 U.S.C.A. §§ 1821-1831 (1982). The Act essentially prohibits the showing, exhibition, transport, and sale of "sore" horses. See 15 U.S.C.A. § 1823(a)-(b). The Act also provides for inspections and reports by the Secretary of Agriculture to Congress. See 15 U.S.C.A. §§ 1823(e) and 1830.

According to appellants' petition, the official United States Department of Agriculture figures showed that by 1980 ninety-eight to ninety-nine percent of all Tennessee Walkers were free from any soring at the time of show or sale. Appellants contend these figures should have satisfied the Association, and its attention should have turned to other "equine matters" that were problematic and receiving much less attention. Yet, appellants contend the Association continued in its efforts to destroy the industry.

Appellants alleged the Association continued its plan by asking the United States Department of Agriculture to ban all action devices and pads. The Association does not dispute that it was working toward a ban on these items. Even though studies cited by appellants apparently showed that soring was not a problem, the Association persisted in its claims that more regulations were needed because soring was still rampant in the Tennessee Walking Horse industry. Appellants contend the Association kept up this farce because most of its funding was dependent on donations from those who wanted to eliminate soring. If the Association admitted soring was essentially non-existent, its funding would dry up.

The Association filed suit against the Secretary of Agriculture in 1984 asking the federal district court to order the Secretary to go to rule-making and ban all action devices and padded shoes. Appellants alleged the Association took this step without waiting for the results of pending studies or comment from the public. The court granted summary judgment in favor of the Secretary, but the case was ultimately placed back in the hands of the Secretary of Agriculture so he could explain his refusal to go to rule-making or go ahead and begin rule-making. See American Horse Protection Ass'n, Inc. v. Lyng, 812 F.2d 1, 8 (D.C.Cir.1987). Eventually, the Secretary of Agriculture was ordered by the federal district court to go to rule-making on action devices and pads. See American Horse Protection Ass'n, Inc. v. Lyng, 681 F.Supp. 949, 958 (D.D.C.1988).

The Secretary of Agriculture complied with the court's order, and the new rules concerning action devices limited their weight to six ounces, a weight found by studies not to cause soring. There were also new regulations governing padded shoes. Appellants claim the litigation and new regulations severely impacted the industry and their businesses because of uncertainty about what the Association might ask for and get next. Appellants contend these events taught the Association it could strike a blow to the industry simply by pursuing litigation against the Secretary of Agriculture without ever actually engaging anyone in the industry in litigation.

The Association claims to be a national, non-profit, humane organization dedicated to the welfare of all horses. The Association, through its employees and members, strives to influence government agencies concerning enforcement of legislation designed to promote and protect the welfare of horses, wild and domestic. Part of the Association's activities in this regard include filing litigation against governmental agencies, when necessary, to ensure proper enforcement of horse welfare and protection laws.

The Association admits that in the late 1970s, it worked for amendments to the Horse Protection Act to increase the penalties for violations and to set up formal inspection programs of Tennessee Walking Horse shows and sales. The Association admits that in the mid-1980s, it began concentrating its attention to the wholesale elimination of pads and actions devices. The Association claims these devices simply replaced the outlawed technique of soring and were cruel and harmful to the horses.

As we noted above, the Association's efforts eventually resulted in the adoption of federal regulations by the Secretary of Agriculture governing the use of pads and action devices. In 1989, the Association once again filed suit against the Secretary of Agriculture. The Association claims the suit was filed because it believed that the regulations adopted by the Secretary of Agriculture were inadequate and failed to ensure proper enforcement. According to the Association, the suit was a routine challenge to an agency rule-making decision of the type specifically allowed by the judicial review provisions of the Administrative Procedure Act. See 5 U.S.C.A. § 702 (1992). The Association contends it was merely exercising its First Amendments right to petition the government to influence the Secretary of Agriculture's rule-making decisions.

The 1989 litigation, which named only the Secretary of Agriculture and not any of the appellants, essentially set forth the following complaint: the Secretary's rules with regard to pads and actions devices were inadequate to insure proper enforcement. The parties engaged in discovery and eventually, both the Association and the Secretary of Agriculture filed cross-motions for summary judgment. The Association motion was granted as to its complaint about action devices and the court entered an injunction. The case was appealed and the Court of Appeals for the District of Columbia vacated the injunction concluding that the Secretary had not abused his discretion in reaching his final rule-making decision to adopt a six-ounce regulation for action devices. See American Horse Protection Ass'n, Inc. v. Yeutter, 917 F.2d 594, 598-99 (D.C.Cir.1990).

In 1991, appellants filed suit against the Association alleging tortious interference with prospective business advantage, malicious prosecution, abuse of process, and prima facie tort. ² Appellants' claims were based on the Association's 1989 suit...