Thorley v. Nowlin
| Docket Number | 39450-6-III |
| Decision Date | 23 January 2024 |
| Parties | REBECCA THORLEY and MONICA BAXTER, Appellants, v. DONALD E. NOWLIN; marital community or domestic partnership of DONALD E. NOWLIN and HANNA NOWLIN; OUTWEST LIFESTOCK; and DOES 1 -10 Respondents. |
| Court | Washington Court of Appeals |
1
REBECCA THORLEY and MONICA BAXTER, Appellants,
v.
DONALD E. NOWLIN; marital community or domestic partnership of DONALD E. NOWLIN and HANNA NOWLIN; OUTWEST LIFESTOCK; and DOES 1 -10 Respondents.
No. 39450-6-III
Court of Appeals of Washington, Division 3
January 23, 2024
Fearing, C.J.
Rebecca Thorley and Monica Baxter sue Donald Nowlin as a result of the sale and subsequent death of stallion Brad Pitt. Brad Pitt died while being boarded by Nowlin and after Nowlin's sale of the horse to Thorley and Baxter. In this interlocutory review, we hold that a claimant may recover emotional distress damages under RCW 4.24.320, the theft of livestock act (TOLA), but rule that a claimant cannot recover for emotional distress under a claim for breach of contract or bailment. We also rule that Washington Constitution, article I, section 21 guarantees a jury trial for a party to a private action for damages under the Consumer Protection Act (CPA), ch. 19.86 RCW.
FACTS
The pending dispute between Rebecca Thorley and Monica Baxter, on the one hand, and Donald Nowlin, on the other hand, arises from the purchase by Thorley and Baxter from Nowlin of twenty-year-old stallion Brad Pitt and the death of the stallion days later while boarded by Nowlin. The appeal asks us to determine under what, if any, cause of actions Thorley and Baxter may recover noneconomic damages because of the death of their horse and whether Thorley and Baxter are entitled to a jury trial on a CPA claim wherein they seek damages and equitable relief. We take the facts from declarations filed by the three parties and expert witnesses in support of and in opposition to motions.
Appellants Rebecca Thorley and Monica Baxter befriended one another because of a common devotion to animal rights. Thorley spent years of her life protesting the live animal export trade in the United Kingdom. Baxter has rescued thoroughbred horses and educated the public about slaughter-bound horses.
Donald Nowlin maintained a feedlot in Sunnyside, where he kept and sold horses. Some of the horses he sold for slaughter. According to Nowlin, a feedlot serves as the last stop before the slaughterhouse for old, untrained, lame, unwanted, or problematic horses whose owners no longer wish to care for them. One horse present on the premises was an old former thoroughbred stud, later named Brad Pitt, that Nowlin purchased, on
May 26, 2016, at a public auction after no one else bid on him. Nowlin priced the stallion at $250 based on its meat value and the feed and shipping costs he had incurred.
Sabrina Connaughton, a Facebook friend to Rebecca Thorley and Monica Baxter, arranged for the two to meet Donald Nowlin, on July 28, 2016 at Nowlin's Sunnyside quarters, to discuss the purchase of horses Nowlin housed on the lot. Connaughton worked with Nowlin.
According to Rebecca Thorley and Monica Baxter, the duo arrived at Donald Nowlin's property around noon on July 28, when the temperature was 106 degrees F. The animals on the property lacked shelter. Thorley and Baxter observed that Nowlin's horses bore injuries, such as fist-size scabby wounds, overgrown hooves, cracked hooves, and coughs. A pregnant mare bled from her vagina. Another horse suffered from a broken leg. Troughs held contaminated water. Thorley saw, next to Nowlin's property, an arena for Mexican rodeos.
The twenty-year-old stallion, who Rebecca Thorley and Monica Baxter named "Brad Pitt," caught the two women's attention. Clerk's Papers (CP) at 82. According to Thorley and Baxter, Donald Nowlin informed them that he deemed the stallion the "mascot" of his feedlot. CP at 3. He intended to donate Brad Pitt to the adjoining Mexican rodeo for an event called "smoking." CP at 3. During a smoking, cowboys load horses into a chute and force the horses from the chute with their legs tied together. The
activity causes the horses to stumble, which some observers deem funny. Nowlin denies telling the two women that he intended to loan the horse for a rodeo.
Donald Nowlin, on the one hand, and Rebecca Thorley and Monica Baxter, on the other hand, disagree as to the day that the two women purchased Brad Pitt. Nowlin identifies the day as July 28, the day that Thorley and Baxter visited Nowlin's premises. According to Thorley and Baxter, the purchase occurred on August 10, twelve days later.
Donald Nowlin testified to being surprised that Rebecca Thorley and Monica Baxter held interest in the stallion, who was ungelded and in terrible condition. Brad Pitt constantly paced and aggressively approached mares in order to mate. According to Nowlin, Thorley and Baxter commented about the poor health of Brad Pitt and expressed the intent to euthanize the horse if no one adopted him.
According to Donald Nowlin, Rebecca Thorley and Monica Baxter purchased Brad Pitt "as-is." He gave no warranties on how long the horse would live. The parties did not sign any contract.
Donald Nowlin testified that Rebecca Thorley and Monica Baxter asked that he continue to house and feed Brad Pitt until they found someone to adopt him. Nowlin responded that his feedlot functioned as a temporary holding facility pending shipment for slaughter and he did not permit storage on the premises for more than thirty days. He added that no one monitored the horses in his absence from the feedlot. Nowlin informed the two ladies that he charged $5 a day for feed for the first seven days and $10 per day
thereafter until the thirty days ended. According to Nowlin, Thorley and Baxter agreed that, if they did not retrieve Brad Pitt within thirty days, ownership of the horse would return to Nowlin without any refund of the purchase price, because of the feed costs in the interim. Thorley and Baxter do not concede that they agreed to retrieve Brad Pitt within thirty days, with the penalty of ownership reverting to Nowlin.
According to Rebecca Thorley and Monica Baxter, the two, on August 10, 2016, purchased Brad Pitt and six other horses from Donald Nowlin for a total of $2,350. Sabrina Connaughton informed the two buyers that they could leave the horses at the feedlot for $5 per day before taking possession.
According to Monica Baxter, on August 21, 2016, she gave Donald Nowlin her permission, via text message, to board Brad Pitt on the feedlot. Nowlin did not reply. Baxter testified that she later called Nowlin and Nowlin agreed to board Brad Pitt for $10 per day. Meanwhile, another facility agreed to board Brad Pitt, but could not do so until September 24, 2016. On September 5, Baxter sent Nowlin a text message informing him that she and Rebecca Thorley would remove Brad Pitt from the feedlot on September 24. Nowlin did not respond.
Donald Nowlin testified that, when he left his feedlot, on the evening of September 6, 2016, Brad Pitt was well. When Nowlin returned the following morning, Brad Pitt laid dead in the feedlot. Nowlin operated a forklift to move the stallion from his pen to an area where the public could not see him.
On September 7, 2016, Sabrina Connaughton called Rebecca Thorley and told Thorley that the feedlot shot and killed Brad Pitt because he suffered a broken leg. According to Monica Baxter, who presumably learned of the death from Thorley, Baxter thereafter called Donald Nowlin and asked him to explain the death of Brad Pitt. Nowlin responded that he was not present when the horse broke his back leg. He added that he administered a "cocktail" that euthanized Brad Pitt. CP at 7. Baxter asked Nowlin how he knew Brad Pitt broke his leg. Nowlin explained that he saw the stallion standing in the middle of the pen holding up his leg. According to Nowlin, the leg was swollen and looked broken. Nowlin added that he did not wish anyone to see an injured horse on his lot.
During Monica Baxter's September 7 phone conversation with Donald Nowlin, Baxter asked Nowlin if the latter retained Brad Pitt's body. According to Baxter, Nowlin grew agitated and remarked that he deposited the horse's body in the bushes to shield his presence from customers purchasing horses. Nowlin asked Baxter if she wished to see photographs of Brad Pitt. Baxter asked for pictures.
Donald Nowlin agrees that he engaged in a September 7 conversation with Monica Baxter. He denies that he told Baxter that he administered drugs for the purpose of euthanasia. Baxter took the news well because of the age and condition of Brad Pitt.
Donald Nowlin texted Monica Baxter two pictures of Brad Pitt: one of the horse's injured leg and another of the horse lying dead. The first pictured depicted the injured
leg's hock as swollen and with a draining puncture wound. The second image showed blood oozing from Brad Pitt's eyes and nose. The entire corpus displayed gashes and other injuries.
Rebecca Thorley and Monica Baxter insist that Donald Nowlin did not inform them of any injury to Brad Pitt before Nowlin killed the stallion. Nowlin did not ask permission for the purported euthanasia.
On September 8, Monica Baxter and Rebecca Thorley journeyed to Donald Nowlin's feedlot to retrieve Brad Pitt's corpse. According to Nowlin, the two women then asked to trade a donkey for Brad Pitt. Nowlin did not suggest that he told the women that the ownership of Brad Pitt had reverted to him because of the passage of thirty days. Nowlin operated a forklift to lift Brad Pitt's body, and he deposited the body into a van. Nowlin testified to the difficulty in loading and moving a bloated and ballooned 1,000-pound horse. According to Nowlin, he did not charge the ladies for boarding Brad Pitt, and the two thanked him for his generosity.
Rebecca Thorley and Monica Baxter's hired veterinarians Victoria Smith and Sean Tuley to examine the corpus of Brad Pitt. Both veterinarians submitted declarations in opposition to a summary judgment motion brought by Donald Nowlin. Dr. Smith averred:
The actual cause of death to Brad...
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