7 Medlen Brief Pet

FILED IN THE SUPREME COURT OF TEXAS 12 June 20 BLAKE. A.
HAWTHORNE CLERK
No. 12-0047
IN THE SUPREME COURT OF TEXAS CARLA STRICKLAND, Petitioner, v. KATHRYN AND JEREMY MEDLEN, Respondents.
On Petition for Review from the Second Court of Appeals at Fort Worth, Texas No. 02-11-00105-CV
PETITIONERS BRIEF ON THE MERITS Paul Boudloche State Bar No. 02694700 paulboudloche@mbllp.net MASON & BOUDLOCHE, LLP 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 76116-5544 Telephone: 817-338-0639 Telecopier: 817-336-0199 John H. Cayce, Jr. State Bar No. 04035650 john.cayce@kellyhart.com Alison M. Rowe State Bar No. 24032717 alison.rowe@kellyhart.com Mallory A. Beagles State Bar No. 24078212 mallory.beagles@kellyhart.com KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280
COUNSEL FOR PETITIONER
IDENTITY OF PARTIES AND COUNSEL Petitioner: Counsel for Petitioner: Carla Strickland John H. Cayce, Jr. (lead appellate counsel) State Bar No. 04035650 john.cayce@kellyhart.com Alison M. Rowe State Bar No. 24032717 alison.rowe@kellyhart.com Mallory A. Beagles State Bar No. 24078212 mallory.beagles@kellyhart.com KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280 Appellate Counsel Paul Boudloche State Bar No. 02694700 paulboudloche@mbllp.net MASON & BOUDLOCHE, LLP 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 76116-5544 Telephone: 817-338-0639 Telecopier: 817-336-0199 Trial Counsel
Petitioners Brief on the Merits
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Respondents: Counsel for Respondents:
Kathryn and Jeremy Medlen Randall E. Turner State Bar No. 20328310 rturner@galyen.com BAILEY & GALYEN, PC 1901 Airport Freeway Bedford, Texas 76021 Telephone: 817-359-7062 Telecopier: 817-764-6336 Sondrea King State Bar No. 24003728 Susan Bleil State Bar No. 14056720 BLEIL & KING 5012 Birch Hollow Lane Fort Worth, Texas 76132 Telephone: 817-946-0537 Telecopier: 817-680-0228
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TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL ....................................................................... i TABLE OF AUTHORITIES ............................................................................................... v STATEMENT OF THE CASE ........................................................................................ xiii STATEMENT OF JURISDICTION ................................................................................ xiv ISSUES PRESENTED .................................................................................................... xvii STATEMENT OF FACTS .................................................................................................. 1 A. B. C. D. E. F. Avery is Impounded and Euthanized. .......................................................... 1 The Medlens File Suit for Sentimental Damages. ........................................ 1 Strickland Specially Excepts to the Claim for Sentimental Damages. ...................................................................................................... 2 Franka v. Velasquez is Decided. .................................................................. 2 The Medlens Suit is Dismissed on Stricklands Special Exceptions. ................................................................................................... 3 The Court of Appeals Decision. .................................................................. 3
SUMMARY OF THE ARGUMENT .................................................................................. 5 ARGUMENT AND AUTHORITIES ................................................................................. 8 I. LOSS OF COMPANIONSHIP AND SENTIMENTAL VALUE DAMAGES ARE NOT ALLOWED UNDER HEILIGMANN AND ITS PROGENY. ........................................................ 8 THE COURTS POST-HEILIGMANN DECISIONS WOULD LIMIT RECOVERY FOR THE LOSS OF A PET TO THE PETS ECONOMIC VALUE EXCLUDING SENTIMENTAL CONSIDERATIONS. ................................................... 11 A. The General Rule for Measuring the Loss of Personal Property Having No Market or Replacement Value is
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II.
Actual Economic Value to the Owner; the Sentimental Value Measure is an Exception that Applies Only to Heirlooms. ............................................................ 11 B. C. III. Actual Value Damages under Crisp v. Security Natl Ins. Co. ............................................................................................ 12 Sentimental Value Damages Under Brown v. Frontier Theatres, Inc. .................................................................... 15
THE INTRINSIC VALUE MEASURE ADOPTED IN PORRAS V. CRAIG DOES NOT INCLUDE SENTIMENTAL VALUE.......................................................................... 18 CITY OF TYLER V. LIKES PROHIBITS RECOVERY OF LOST COMPANIONSHIP BASED SOLELY ON NEGLIGENT DAMAGE TO A DOG. ...................................................... 21 PUBLIC POLICY FORBIDS RECOVERY OF LOSS OF COMPANIONSHIP OR SENTIMENTAL VALUE DAMAGES FOR A DOG. ......................................................................... 23 THE COURT OF APPEALS OPINION CONSTITUTES AN IMPERMISSIBLE ADVISORY OPINION BECAUSE IT IS UNDISPUTED THAT THE MEDLENS SUIT AGAINST STRICKLAND IS BARRED BY GOVERNMENTAL IMMUNITY UNDER FRANKA. ............................. 27
IV.
V.
VI.
CONCLUSION ................................................................................................................. 28 PRAYER ........................................................................................................................... 29 CERTIFICATE OF SERVICE .......................................................................................... 30
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TABLE OF AUTHORITIES Page(s) STATE CASES Allstate Ins. Co. v. Chance, 590 S.W.2d 703 (Tex. 1979) .................................................................................. xv, 14 American Trans. & Storage Co. v. Reichley, 560 S.W.2d 196 (Tex. Civ. App.Amarillo 1977, writ refd n.r.e.) .......................... 14 Ammon v. Welty, 113 S.W.3d 185 (Ky. Ct. App. 2003) ............................................................................ 6 Bales v. Judelsohn, 2005 UP 509 (S.C. Ct. App. 2005) ................................................................................ 6 Barrios v. Safeway Ins. Co., 2012 WL 1000864 (La. Ct. App. Mar. 21, 2012) .......................................................... 6 Bennett v. Imperial Ins. Co., 606 S.W.2d 7 (Tex. Civ. App.Dallas 1980, writ refd n.r.e.) .................................. 14 Blackmon v. Mixson, 755 S.W.2d 179 (Tex. App.Dallas 1988, no writ) ................................................... 14 Boyer, Inc. v. Texan Land and Cattle Co., 2001 WL 1590477 (Tex. App.Houston [14th Dist.] Dec. 13, 2001, no pet.) .......... 19 Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963) .................................................................. 4, 11, 12, 16, 21 Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App.Houston [1st Dist.] 1994, writ denied) ............. xvi, 9, 10 Buff v. Diamond Pet Foods, 2009 WL 926945 (W.D.N.C. Mar. 30, 2009) ................................................................ 6 Burgess v. Shampooch, 131 P.3d 1248 (Kan. Ct. App. 2006) ............................................................................. 6 Burns v. Rochon, 190 S.W.3d 263 (Tex. App.Houston [1st Dist.] 2006, no pet.) ............................... 14
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Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Haw. 1981) ........................................................................................... 6 Carbasho v. Musulin, 618 S.E.2d 368 (W. Va. 2005) ....................................................................................... 6 Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985) ........................................................................................ 24 City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex. Civ. App.Amarillo 1932, no writ) ............................. 10, 20, 21 City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366 (Tex. App.Fort Worth 2001, no pet.) .............................................. 28 City of Tyler v. Likes, 962 S.W.2d 489 (1997) .............................................................. xv, 4, 16, 18, 21, 22, 23 Corso v. Crawford Dog and Cat Hosp., 97 Misc.2d 530 (N.Y. Civ. Ct. 1979)............................................................................. 6 Crisp v. Security Natl Ins. Co., 369 S.W.2d 326 (Tex. 1963) .......................................................... xv, 11, 12, 13, 18, 21 Daughen v. Fox, 539 A.2d 858 (Pa. Super. Ct. 1988) ............................................................................... 6 DeJoy v. Niagara Mohawk Power Corp., 786 N.Y.S.2d 873 (N.Y. App. Div. 2004) ..................................................................... 6 Fackler v. Genetzky, 595 N.W.2d 884 (Neb. 1999) ......................................................................................... 6 First Preferred Ins. Co. v. Bell, 587 S.W.2d 798 (Tex. Civ. App.Amarillo 1979, writ refd n.r.e.) .......................... 14 Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) ........................................................................................ 25 Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) ......................................................... xviii, 2, 3, 4, 7, 27, 28 Gannett Outdoor Co. of Tex. v. Kubeczka, 710 S.W.2d 79 (Tex. App.Houston [14th Dist.] 1986, no writ) .............................. 14
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Garey Const. Co., Inc. v. Thompson, 697 S.W.2d 865 (Tex. App.Austin 1985, no writ) ................................................... 19 Gill v. Brown, 695 P.2d 1276 (Idaho Ct. App. 1985) ............................................................................ 6 Gluck v. Hadlock, 2011 WL 944439 (Tex. App.Fort Worth Mar. 17, 2011, no pet.) ........................... 16 Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825 (Tex. App.Austin, 2010, no pet.) .................................................. 28 Goodby v. Vetpharm, Inc., 974 A.2d 1269 (Vt. 2009) ........................................................................................ 6, 26 Gulf States Util. Co. v. Low, 79 S.W.3d 561 (Tex. 2002) .................................................................................... xv, 14 Hamilton v. Fant, 422 S.W.2d 495 (Tex. Civ. App.Austin 1967, no writ) ........................................... 19 Harabes v. The Barkery, 791 A.2d 1142 (N.J. Super. Ct. App. Div. 2001)........................................................... 6 Heiligmann v. Rose, 16 S.W. 931 (Tex. 1891) .......................................... xv, 3, 5, 8, 9, 10, 11, 15, 17, 18, 22 Henson v. Reddin, 358 S.W.3d 428 (Tex. App.Fort Worth 2012, no pet.) ............................................ 14 Hodges v. Causey, 26 So. 945 (Miss. 1900) ................................................................................................. 6 Holbrook v. Stansell, 562 S.E.2d 731 (Ga. Ct. App. 2002) .............................................................................. 6 International & G.N. Ry. Co. v. Nicholson, 61 Tex. 550 (1884) ....................................................................................................... 13 Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084 (Ill. App. Ct. 1987) ............................................................................ 6 Juarez v. Texas Assn of Sporting Officials El Paso Chapter, 172 S.W.3d 274 (Tex. App.El Paso 2005, no pet.) .................................................. 28
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Kaufman v. Langhofer, 222 P.3d 272 (Ariz. Ct. App. 2009) ............................................................................... 6 Kennedy v. Byas, 867 So.2d 1195 (Fla. Dist. Ct. App. 2004) .................................................................... 6 Kling v. U.S. Fire Ins. Co., 146 So.2d 635 (La. Ct. App. 1962) ................................................................................ 6 Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37 (Fla. Dist. Ct. App. 1978) ........................................................................ 6 Koester v. VCA Animal Hosp., 624 N.W.2d 209 (Mich. Ct. App. 2000) ........................................................................ 6 Kondaurov v. Kerdasha, 629 S.E.2d 181 (Va. 2006) ............................................................................................. 6 Krasnecky v. Meffen, 777 N.E.2d 1286 (Mass. App. Ct. 2002) ....................................................................... 6 Lachenman v. Stice, 838 N.E.2d 451 (In. Ct. App. 2006)............................................................................... 6 Lamar Co. Elec. Co-op Assn v. Bryant, 770 S.W.2d 921 (Tex. App.Texarkana 1989, no writ) ............................................ 19 Langhorne v. Miller, 2009 WL 2365592 (Tex. App.Houston [14th Dist.] Aug. 4, 2009, no pet.) ............ 14 Lockett v. Hill, 51 P.3d 5 (Or. Ct. App. 2002) ........................................................................................ 6 Lucas v. Morrison, 286 S.W.2d 190 (Tex. Civ. App.San Antonio 1956, no writ) ................................. 19 Marley v. Wallace, 2002 WL 31761150 (Tex. App.Tyler Dec. 11, 2002, no pet.) ................................ 14 McAdams v. Faulk, 2002 WL 700956 (Ark. Ct. App. Apr. 24, 2002)........................................................... 6 McMahon v. Craig, 97 Cal.Rptr.3d 355 (Cal. Ct. App. 2009) ....................................................................... 6
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Medlen v. Strickland, 353 S.W.3d 576 (Tex. App.Fort Worth 2011, pet. filed) ............................................................................... xiv, 3, 4, 10, 12, 17, 21, 22 Menefee v. Medlen, 319 S.W.3d 868 (Tex. App.Fort Worth 2010, no pet.) .......................................... 1, 2 Mew v. J & C Galleries, Inc., 564 S.W.2d 377 (Tex. 1978) .................................................................................. xv, 14 Miloszar v. Gonzalez, 619 S.W.2d 283 (Tex. Civ. App.Corpus Christi, 1981, no writ) ............................. 19 Mireles v. Mormon, 2010 WL 3059241 (Tex. App.Austin Aug. 6, 2010, no pet.) ....................... xvi, 9, 10 Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001) ............................................................................................. 6 Moran Corp. v. Murray, 381 S.W.2d 324 (Tex. Civ. App.Texarkana 1964, no writ)..................................... 19 Myers v. City of Hartford, 853 A.2d 621 (Conn. App. Ct. 2004) ............................................................................. 6 Naples v. Miller, 2009 WL 1163504 (Del. Super. Ct. Apr. 30, 2009), affd, 992 A.2d 1237 (Del. 2010) ................................................................................... 6 National Collegiate Athletic Assn. v. Jones, 1 S.W.3d 83 (Tex. 1999) .............................................................................................. 28 Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996) ........................................................................................ 6 Oberschlake v. Veterinary Assoc. Animal Hosp., 785 N.E.2d 811 (Ohio Ct. App. 2003) ........................................................................... 6 Ogden v. Wilson, 649 S.W.2d 780 (Tex. App.Austin 1983, writ refd n.r.e.) ...................................... 14 Pacher v. Invisible Fence of Dayton, 798 N.E.2d 1121 (Ohio Ct. App. 2003) ......................................................................... 6 Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.Austin 2004, no pet.) ...................... xvi, 9, 10, 15, 22, 23
Petitioners Brief on the Merits Page ix
Porras v. Craig, 675 S.W.2d 503 (Tex. 1984) .............................................................................. 4, 18, 19 Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001) ................................................................................... 6, 26 Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990) .................................................................................... 9, 25 Reata Constr. Co. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) ........................................................................................ 28 Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985) ........................................................................................ 25 Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003) .................................................................................. 24, 25 Rosenfeld v. White, 267 S.W.2d 596 (Tex. Civ. App.Dallas 1954, writ refd n.r.e.) .............................. 19 Rowbotham v. Maher, 658 A.2d 912 (R.I. 1995) ............................................................................................... 6 Rowe v. Watkins, 324 S.W.3d 111 (Tex. App.El Paso, 2010, no pet.) ................................ xvi, 9, 14, 15 Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983) ........................................................................................ 24 Scheele v. Dustin, 998 A.2d 697 (Vt. 2010) ................................................................................................ 6 Sexton v. Brown, 2008 WL 4616705 (Wash. Ct. App. 2008) .................................................................... 6 Shera v. N.C. State Univ. Veter. Teachg Hosp., 723 S.E.2d 352 (N.C. Ct. App. 2012) ............................................................................ 6 Sherman v. Kissinger, 195 P.3d 539 (Wash. Ct. App. 2008) ............................................................................. 6
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Sosa By & Through Grant v. Koshy, 961 S.W.2d 420 (Tex. App.Houston [1st Dist.] 1997, no pet.) ............................... 28 Soucek v. Banham, 503 N.W.2d 153 (Minn. Ct. App. 1993) ........................................................................ 6 Spears v. Huber, 2012 WL 933780 (Tex. App.Amarillo Mar. 20, 2012, no pet. h.) .......................... 14 Star Houston, Inc. v. Kundak, 843 S.W.2d 294 (Tex. App.Houston [14th Dist.] 1992, no writ) ...................... 10, 21 Texas Assn of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ........................................................................................ 28 Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ........................................................................................ 28 Thomson v. Lied Animal Shelter, 2009 WL 3303733 (D. Nev. Oct. 14, 2009) .................................................................. 6 Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex. 2000) .......................................................................................... 28 Vien v. Del Buono, 2010 WL 5117248 (Tex. App.Waco Dec. 15, 2010, pet. denied) ........................... 14 Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) .......................................................................................... 28 Wesley v. Wesley, 2000 WL 34234977 (Tex. App.Eastland Mar. 30, 2000, no pet.) ........................... 14 Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978) .............................................................................. 9, 24, 25 Wilcox v. Butts Drug Stores, Inc., 35 P.2d 978 (N.M. 1934) ............................................................................................... 6 Wright v. Edison, 619 S.W.2d 797 (Mo. Ct. App. 1981) ............................................................................ 6 Wright v. Gernandt, 559 S.W.2d 864 (Tex. Civ. App.Corpus Christi 1977, no pet.)............................... 14
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Yazdani-Beioky v. Tremont Tower Condo. Assn, Inc., 2011 WL 1434837 (Tex. App.Houston [1st Dist.] Apr. 14, 2011, no pet.) ............. 14 Youngs Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex. Civ. App.Beaumont 1931, no writ) .......... xvi, 9, 10, 19, 20, 21 Zeid v. Pearce, 953 S.W.2d 368 (Tex. App.El Paso 1997, no writ) ...................................... xvi, 9, 10 STATE STATUTES MD. CODE ANN., CTS. & JUD. PROC. 11-110 (West 2012)............................................... 7 TENN. CODE ANN. 44-17-403 (West 2012) ...................................................................... 7 TEX. CIV. PRAC. & REM. CODE 101.106 (West 2011) ......................... xviii, 1, 2, 4, 27, 28 TEX. GOVT CODE 22.001(a)(2) and (a)(6) (West 2011) ................................................ xv STATE RULES TEX. R. APP. P. 24.2(a)(3).................................................................................................. 14 OTHER AUTHORITIES BLACKS LAW DICTIONARY (9th ed. 2009) ....................................................................... 19 BLACKS LAW DICTIONARY (5th ed. 1979) ....................................................................... 21 RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. & EMOT. HARM 46 (Tentative Draft 2012) ................................................................................................. 26 Robert L. Adair, Monkeys and Horses and FerretsOh My! Non-Traditional Service Animals Under the ADA, 37 N. Ky. L. Rev. 415 (2010) ................................ 17 Susan J. Hankin, Making Decisions About Our Animals Health Care: Does it Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Poly 1 (2009) ........................................................................................................................... 17 Victor E. Schwartz & Emily J. Laird, Non-Economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule, 33 Pepp. L. Rev. 227 (2006) ............................................................................................................... 15, 17, 21
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STATEMENT OF THE CASE Nature of the Case: This negligence case is about whether the owners of a dog may recover loss of companionship damages in the form of intrinsic or sentimental value property damages for the wrongful death of their dog. The plaintiffs, Kathryn and Jeremy Medlen, sued defendant, Carla Strickland, a City of Fort Worth animal shelter employee, alleging that her negligence caused the death of their dog. The trial court granted Stricklands special exception to the plaintiffs claim for intrinsic or sentimental value damages, and ordered plaintiffs to replead a claim for damages recognized at law. [CR 4, 25; Tab 4,5] The Medlens filed an amended petition alleging a claim for intrinsic value damages. [CR 28; Tab 6] Strickland specially excepted again, and the trial court dismissed the Medlens lawsuit with prejudice. [CR 60; Tab 9] Defendant/Appellee/Petitioner: Carla Strickland Plaintiff/Appellant/Respondents: Kathryn and Jeremy Medlen Court of Appeals: Appellate Court Disposition: Second Court of Appeals, Fort Worth, Texas Reversed and remanded. Medlen v. Strickland, 353 S.W.3d 576 (Tex. App.Fort Worth 2011, pet. filed) (Gabriel, J., joined by Walker and Meier, J.J.) (Tab 1). The court of appeals held that the Medlens may be awarded damages for the loss of companionship of their dog in the form of intrinsic or sentimental value property damages. Id. at 580. The court did not address Stricklands cross-point asserting that she was entitled to dismissal of the suit on governmental immunity grounds. The court denied Appellees Motion for Reconsideration En Banc on December 1, 2011. No further motions for rehearing or en banc reconsideration are pending in the court of appeals at this time.
Trial Court Disposition:
Parties on Appeal:
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STATEMENT OF JURISDICTION Jurisdiction is proper under Texas Government Code 22.001(a)(2) and (a)(6) (West 2011). First, the court of appeals holding that a plaintiff may recover loss of companionship damages in the form of intrinsic or sentimental value property damages directly conflicts with a prior decision of this Court holding that the true rule for determining the value of dogs is either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. Heiligmann v. Rose, 16 S.W. 931 (Tex. 1891). The court of appeals opinion also conflicts with Gulf States Util. Co. v. Low, 79 S.W.3d 561 (Tex. 2002); Allstate Ins. Co. v. Chance, 590 S.W.2d 703 (Tex. 1979); Mew v. J & C Galleries, Inc., 564 S.W.2d 377 (Tex. 1978); and Crisp v. Security Natl Ins. Co., 369 S.W.2d 326 (Tex. 1963), in which the Court held that the general measure for personal property having no market or replacement value is the actual value to the owner excluding sentimental considerations. Further, the court of appeals decision improperly allows a pet owner to recover personal injury type damages for loss of companionship based on negligent harm to personal property in the form of a dog. This result conflicts with City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997), which holds that personal injury damages in the form of mental anguish are not recoverable based solely on negligent damage to property. In addition to conflicts with this Courts decisions, the court of appeals opinion conflicts with the decisions of other courts of appeals that, consistent with Heiligmann
Petitioners Brief on the Merits Page xiv
and other decisions of this Court, have held that damages for the loss of a dog with no market value are limited to the actual or pecuniary value of the dog to the owner excluding sentimental considerations. See Mireles v. Mormon, 2010 WL 3059241 (Tex. App.Austin Aug. 6, 2010, no pet.); Rowe v. Watkins, 324 S.W.3d 111 (Tex. App.El Paso, 2010, no pet.); Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.Austin 2004, no pet.); Zeid v. Pearce, 953 S.W.2d 368 (Tex. App.El Paso 1997, no writ); Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App.Houston [1st Dist.] 1994, writ denied); Youngs Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex. Civ. App.Beaumont 1931, no writ). Moreover, the issue presented by the Petition is important to the jurisprudence and public policy of the state. The court of appeals decision effectively creates a new and independent cause of actionloss of companionship for the wrongful death of an animal. This sweeping change in Texas law gives owners of companion animals the potential of recovering damages for the loss of their pets comparable to what they would be entitled to recover for the loss of a spouse, parent, or child. Although dogs and other animals can be beloved companions, they should not be placed into this close human familial category as a matter of public policy. Moreover, allowing loss of animal companionship damages in a state with a pet population as large as Texass would result in a litigation tsunami with no stopping point, ultimately affecting the quality and costs of pet services to the detriment of pets and their owners, as well as other business interests in the state. While the Court may be understandably sympathetic to grieving pet owners like the Medlens, it
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should defer the decision as to whether to create an appropriately structured remedy for such a loss to the Texas Legislature.
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ISSUES PRESENTED 1. Did the court of appeals err in holding that the Medlens are entitled to recover damages for loss of companionship in the form of intrinsic or sentimental value damages for the negligent destruction of their dog? Did the court of appeals issue an impermissible advisory opinion addressing the issue of whether the Medlens are entitled to recover damages against Strickland, when it is undisputed that Strickland was acting in her official capacity and is, therefore, immune from suit under Section 101.106(f) of the Texas Torts Claim Act,1 as interpreted in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011)?
2.
TEX. CIV. PRAC. & REM. CODE 101.106 (West 2011).
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STATEMENT OF FACTS A. Avery is Impounded and Euthanized. On or about June 2, 2009, Kathryn and Jeremy Medlens dog, Avery, escaped from their backyard and was picked up by the City of Fort Worth (the City) animal control. [CR 3-4, 27; Tab 2, 6] Jeremy went to the animal shelter to retrieve Avery, but did not have enough money with him to pay the fees. [Id.] He was told that he could return for the dog on June 10, and a hold for owner tag was placed on Averys cage notifying employees that the Medlens were going to return for Avery. [Id.] In the meantime, on June 6, 2009, Carla Strickland, a shelter employee, made a list of animals that would be euthanized the following day. [Id.] She mistakenly put Avery on the list, and he was humanely put down the next day. [ Id.] When the Medlens returned for their dog a few days later, they learned of his unfortunate fate. [Id.] B. The Medlens File Suit for Sentimental Damages. On September 8, 2009, the Medlens brought suit against Stricklands supervisor, Keane Menefee, for negligence, and pleaded damages for Averys sentimental or intrinsic value. [CR 48; Tab 8] Menefee filed a motion to dismiss the Medlens claims against him, asserting he was entitled to a dismissal pursuant to Section 101.106(f) of the Texas Tort Claims Act (TTCA).2 Menefee v. Medlen, 319 S.W.3d 868, 871 (Tex.
TEX. CIV. PRAC. & REM. CODE ANN. 101.106(f) (West 2011). This section of the TTCA provides: If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employees employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employees official capacity only. On the employees motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed. Id. 101.106(f).
2
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App.Fort Worth 2010, no pet.). The trial court denied the motion to dismiss, and the Second Court of Appeals affirmed. Menefee, 319 S.W.3d at 877-78.3 On December 30, 2009, the Medlens sued Strickland for Averys death, again alleging intrinsic or sentimental value damages. [CR 4; Tab 2] The following December, the Medlens dismissed their suit against Menefee by agreement of the parties. [CR 30; Tab 7] C. Strickland Specially Excepts to the Claim for Sentimental Damages. On November 3, 2010, Strickland specially excepted to the Medlens claim for sentimental or intrinsic value damages on the grounds that such damages are not recoverable for the death of a dog. [CR 12-13; Tab 4] The trial judge granted the special exception on December 8, 2010, and ordered the Medlens to amend their pleadings to state a claim for damages recognized at law. [CR 25; Tab 5] Thereafter, the Medlens amended their petition to allege damages for Averys intrinsic value and Strickland specially excepted to the amended petition on the same grounds.4 [CR 28, 32; Tab 8] D. Franka v. Velasquez is Decided. On January 21, 2011, this Court handed down its decision in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). In Franka, the Court held that Section 101.106(f) of the
On interlocutory appeal, Menefee argued that Section 101.106(f) entitled him to dismissal of the Medlens suit because he was acting within the general scope of his employment and the suit could have been brought against the City. TEX. CIV. PRAC. & REM. CODE ANN. 101.106(f); Menefee, 319 S.W.3d at 871. The court of appeals disagreed, holding that, in addition to proving that he was acting within the general scope of his employment with the City, Menefee was required to prove that the suit could have brought against the City under the TTCA. Id. at 877. Because Menefee failed to meet the latter burden, the court of appeals held that the trial court did not err by denying the motion to dismiss. Id. For reasons not reflected in the record, the Medlens dropped the words sentimental value from their second amended petition and alleged only intrinsic damages. [CR 28; Tab 8]
4
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TTCA entitles a government employee who has acted within the general scope of her employment to dismissal of suit, without establishing a waiver of the governments immunity under the TTCA. Id. at 385. In reaching this result, the Court expressly disapproved of the court of appeals decision in Menefee. Id. at 382, n. 67. While it is undisputed that Strickland was acting within the general scope of her employment with the City when Avery was euthanized, she did not file a motion to dismiss herself from the Medlens suit in light of Franka. Instead, Strickland continued to seek dismissal of the suit on the basis of her special exceptions. E. The Medlens Suit is Dismissed on Stricklands Special Exceptions. On February 25, 2011, a hearing was held on Stricklands special exceptions to the Medlens second amended petition. The trial court granted the special exceptions and dismissed the Medlens lawsuit with prejudice. [CR 60; Tab 9] The Medlens appealed. F. The Court of Appeals Decision. The court of appeals phrased the issue before it as whether a party can recover intrinsic or sentimental damages for the loss of a dog. Medlen, 353 S.W.3d at 577. The Medlens argued that they should be able to recover such damages because this Court has repeatedly held that where personal property has little or no market value, damages can be awarded based on the intrinsic or sentimental value of the personal property. Id. Relying on Heiligmann, Strickland contended that the trial courts order of dismissal should be upheld because the Medlens are only entitled to recover the market value of their dog, if any, or a special or pecuniary value determined by the usefulness or services of the dog, without consideration of its sentimental value. Id.; see Heiligmann, 16 S.W.
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at 932. Strickland also asserted a cross-point in which she argued that she was entitled to dismissal of the Medlens suit against her on immunity grounds under Section 101.106(f), as interpreted in Franka. TEX. CIV. PRAC. & REM. CODE ANN. 101.106(f). The court of appeals reversed the trial courts dismissal and remanded the case for further proceedings, concluding that Heiligmann does not preclude the recovery of companionship or sentimental value damages for the negligent destruction of a dog. Medlen, 353 S.W.3d at 579-580. Citing three decisions of this CourtCity of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997); Porras v. Craig, 675 S.W.2d 503 (Tex. 1984); and Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963)the court of appeals held sentimental damages may now be recovered for the loss or destruction of all types of personal property. See Medlen, 353 S.W.3d at 580. The court did not reach the question raised by Stricklands cross-point of whether Strickland was entitled to dismissal on immunity grounds under Franka. Id. at 581.
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SUMMARY OF THE ARGUMENT This case involves the straightforward application of the Courts holding over one hundred years ago in Heiligmann v. Rose that the true rule for determining the value of a dog is either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. Heiligmann, 16 S.W. at 932. Shunning the controlling precedent of Heiligmann as timewornand ignoring a longstanding general rule that damage to personal property having no market value is measured by the actual economic worth of the property to the owner excluding sentimental considerationsthe court of appeals created an expansive new rule for measuring the value of a dog that allows the owner to recover unlimited damages based on the sentimental value that the owner places on the dog and its companionship. Under this rule, a dog owner is afforded a greater remedy for the loss of a pet animal than someone who has suffered the loss of a human family member or best friend. There is no social or public policy justification for creating such an expansive new right to damages, especially by an intermediate appellate court. The court of appeals decision not only represents a sharp departure from the established law of this state, but it is contrary to the decisions of the overwhelming majority of the courts in the nation. For sound policy reasons, courts in thirty-five states have refused to recognize a damage claim for negligent loss of a pet based on an owners
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emotional attachment to a pet.5 Although the courts recognize the companionship that pets provide to their owners, they have rejected claims derived from that relationship on public policy grounds due to the inherently subjective and easily inflatable damages that may be claimed by pet owners. If the court of appeals opinion is allowed to stand, it is
See ALASKA: Mitchell v. Heinrichs, 27 P.3d 309, 314 (Alaska 2001); ARIZONA: Kaufman v. Langhofer, 222 P.3d 272 (Ariz. Ct. App. 2009); CALIFORNIA: McMahon v. Craig, 97 Cal.Rptr.3d 355 (Cal. Ct. App. 2009); CONNECTICUT: Myers v. City of Hartford, 853 A.2d 621 (Conn. App. Ct. 2004); DELAWARE: Naples v. Miller, 2009 WL 1163504, at *3 (Del. Super. Ct. Apr. 30, 2009), affd, 992 A.2d 1237 (Del. 2010); FLORIDA: Kennedy v. Byas, 867 So.2d 1195, 1198 (Fla. Dist. Ct. App. 2004); GEORGIA: Holbrook v. Stansell, 562 S.E.2d 731, 733 (Ga. Ct. App. 2002); IDAHO: Gill v. Brown, 695 P.2d 1276, 1278 (Idaho Ct. App. 1985); ILLINOIS: Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084 (Ill. App. Ct. 1987); INDIANA: Lachenman v. Stice, 838 N.E.2d 451, 461 (In. Ct. App. 2006); IOWA: Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996); KANSAS: Burgess v. Shampooch, 131 P.3d 1248 (Kan. Ct. App. 2006); KENTUCKY: Ammon v. Welty, 113 S.W.3d 185 (Ky. Ct. App. 2003); LOUISIANA: Kling v. U.S. Fire Ins. Co., 146 So.2d 635 (La. Ct. App. 1962); MASSACHUSETTS: Krasnecky v. Meffen, 777 N.E.2d 1286, 1287-90 (Mass. App. Ct. 2002); MICHIGAN: Koester v. VCA Animal Hosp., 624 N.W.2d 209 (Mich. Ct. App. 2000); MINNESOTA: Soucek v. Banham, 503 N.W.2d 153 (Minn. Ct. App. 1993); MISSISSIPPI: Hodges v. Causey, 26 So. 945 (Miss. 1900); MISSOURI: Wright v. Edison, 619 S.W.2d 797 (Mo. Ct. App. 1981); NEBRASKA: Fackler v. Genetzky, 595 N.W.2d 884 (Neb. 1999); NEVADA: Thomson v. Lied Animal Shelter, 2009 WL 3303733, at *7 (D. Nev. Oct. 14, 2009); NEW JERSEY: Harabes v. The Barkery, 791 A.2d 1142 (N.J. Super. Ct. App. Div. 2001); NEW MEXICO: Wilcox v. Butts Drug Stores, Inc., 35 P.2d 978 (N.M. 1934); NEW YORK: DeJoy v. Niagara Mohawk Power Corp., 786 N.Y.S.2d 873 (N.Y. App. Div. 2004); NORTH CAROLINA: Shera v. N.C. State Univ. Veterinary Teachg Hosp., 723 S.E.2d 352, 357 (N.C. Ct. App. 2012); Buff v. Diamond Pet Foods, 2009 WL 926945 (W.D.N.C. Mar. 30, 2009); OHIO: Pacher v. Invisible Fence of Dayton, 798 N.E.2d 1121, 1125-26 (Ohio Ct. App. 2003); Oberschlake v. Veterinary Assoc. Animal Hosp., 785 N.E.2d 811, 812-15 (Ohio Ct. App. 2003); OREGON: Lockett v. Hill, 51 P.3d 5, 7-8 (Or. Ct. App. 2002); PENNSYLVANIA: Daughen v. Fox, 539 A.2d 858, 864-65 (Pa. Super. Ct. 1988); RHODE ISLAND: Rowbotham v. Maher, 658 A.2d 912 (R.I. 1995); SOUTH CAROLINA: Bales v. Judelsohn, 2005 UP 509 (S.C. Ct. App. 2005); VERMONT: Scheele v. Dustin, 998 A.2d 697 (Vt. 2010); Goodby v. Vetpharm, Inc., 974 A.2d 1269 (Vt. 2009); VIRGINIA: Kondaurov v. Kerdasha, 629 S.E.2d 181 (Va. 2006); WASHINGTON: Sherman v. Kissinger, 195 P.3d 539 (Wash. Ct. App. 2008); Sexton v. Brown, 2008 WL 4616705 (Wash. Ct. App. 2008); WEST VIRGINIA: Carbasho v. Musulin, 618 S.E.2d 368 (W. Va. 2005); WISCONSIN: Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001). But see ARKANSAS: McAdams v. Faulk, 2002 WL 700956, at *5 (Ark. Ct. App. Apr. 24, 2002) (holding mental anguish damages are available in negligence cases involving personal property, including pets); HAWAII: Campbell v. Animal Quarantine Station, 632 P.2d 1066, 1071 (Haw. 1981) (same); FLORIDA: Knowles Animal Hosp., Inc. v. Wills, 360 So.2d 37 (Fla. Dist. Ct. App. 1978) (same): LOUISIANA: Barrios v. Safeway Ins. Co., 2012 WL 1000864 (La. Ct. App. Mar. 21, 2012) (same); NEW YORK: Corso v. Crawford Dog and Cat Hosp., 97 Misc.2d 530 (N.Y. Civ. Ct. 1979) (same). No reported court rulings on the issue have been located in Alabama, Colorado, the District of Columbia, Maine, Montana, New Hampshire, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming.
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certain to snowball into the recognition of similar actions for the death of a host of other living creatures to which a human may bond, all at an enormous cost to Texas society. Whether such a potentially costly expansion of tort law is within the best interest of Texans is a matter that should be decided by the states legislature, 6 or by this Court, not by a lower appellate court. The trouble caused by the court of appeals opinion could have been avoided had the court of appeals addressed the jurisdictional issue raised by Stricklands cross-point before proceeding to the merits of the appeal. The Medlens concede that, in light of Franka, their suit against Strickland is barred by governmental immunity, thus depriving the court of jurisdiction over the Medlens claims against Strickland. As a result, the measure of damages issue is effectively moot to the extent it relates to the Medlens claims against Strickland, rendering the court of appeals opinion an impermissible advisory opinion that should be vacated.
The legislatures in Maryland and Tennessee have enacted statutes limiting damages in pet tort cases. See MD. CODE ANN., CTS. & JUD. PROC. 11-110 (West 2012) (limits damages to fair market value plus necessary costs of veterinary care, not to exceed $7,500 total); TENN. CODE ANN. 44-17-403 (West 2012) (allows non-economic damages of up to $5,000 in ordinary negligence cases, if the pets death or fatal injury occurs on the property of the owner; excludes certain entities and individuals, such as veterinarians and animal shelters).
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ARGUMENT AND AUTHORITIES I. LOSS OF COMPANIONSHIP AND SENTIMENTAL VALUE DAMAGES ARE NOT ALLOWED UNDER HEILIGMANN AND ITS PROGENY. In Heiligmann, the Court was asked to determine the correct measure of damages for the loss of three dogs which the jury found had been poisoned by the defendant. Heiligmann, 16 S.W. at 931. The Court held that the true rule in determining the value of dogs is either market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. Id. at 932. Based on evidence showing the usefulness and services of the plaintiffs dogsthe dogs were of fine breed, and well trained, and one of the Newfoundland dogs was trained to signal the arrival of any person at [the plaintiffs property], who could tell from his bark if the person was man, woman, or childthe Court upheld the jurys damages findings awarding the plaintiff $25 for each dog. Id. The Court concluded: There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. We cannot say that the verdict in this case is not based upon actual damages. Id. In the years that Heiligmann has been on the books, five intermediate Texas appellate courts have addressed the issue of the appropriate measure of damages for the loss of a dog. With the isolated exception of Fort Worth, the courts of appeals have
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followed Heiligmanns pecuniary value rule, or recognized an actual economic value standard closely resembling that rule.7 For example, in Petco Animal Supplies, Inc. v. Schuster, the dog owner sued a pet store to recover mental anguish, loss of companionship, and other unliquidated damages that the owner allegedly suffered when her dog was killed in traffic after escaping from a pet groomer. Petco, 144 S.W.3d at 557. The defendant did not answer the suit, and the plaintiff took a default judgment. Id. Among other damages, the trial court awarded the owner $10,000 each for mental anguish and intrinsic value loss of companionship damages based on testimony that the dog was a friend and companion to the owner. 8 Petco, 144 S.W.3d at 563. Reversing the award for intrinsic value loss of companionship, Justice Pemberton, writing for the court, made two important observations: 1) loss of companionship is a form of personal injury damage, not property damage;9 and 2) to the
See Mireles, 2010 WL 3059241 at *7 (damages for loss of a dog under Heiligmann are limited to either market value, if one can be ascertained, or some special or pecuniary economic value to its owner that is derived from the dogs usefulness and services); Petco, 144 S.W.3d at 561 (same); Zeid, 953 S.W.2d at 369-70 (same); Bueckner, 886 S.W.2d at 371 (same); see also Rowe, 324 S.W.3d at 113 (measure of damages is a dogs actual worth or value less sentimental considerations); Redmon, 43 S.W.2d at 268 (in the absence of market value, measure of damages for loss of dog is the intrinsic or actual value to dog owner; evidence of sentimental value is inadmissible). In addition to attorneys fees, the trial court also awarded $500.00 as the replacement value of the dog; $892.00 as reimbursement costs of putting the dog through training school; $52.40 as reimbursement for microchip implantation; $857.68 as lost wages for Schuster when she was searching for the dog; $160.00 as counseling costs; and $10,000 as exemplary damages.
8 9
Loss of companionship is a component of loss of consortium which includes the loss of love, affection, protection, emotional support, companionship, care, and society that can occur when a family member is injured. See Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990); Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex. 1978).
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extent that intrinsic value includes sentimental considerations,10 Heiligmann and its progeny preclude such a recovery. Id. at 563-64. Heiligmann makes clear that the special or pecuniary value of a dog to its owner refers solely to economic value derived from the dogs usefulness or services, not value attributed to companionship or other sentimental considerations.11 Id. at 561 (emphasis supplied). The Austin court correctly interpreted Heiligmann as precluding loss of companionship damages in the form of sentimental value property damages, and, like other courts of appeals, properly deferred to this Courts prerogative to overrule Heiligmann if the Court chooses.12 Even if this Court disagrees with Petco, it should grant the petition for review to resolve the conflict among the courts of appeals and give Texas courts guidance as to what the true rule is for measuring the damages for loss of a dog.
10
Compare Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex. App.Houston [14th Dist.] 1992, no writ) (defining intrinsic value as an inherent value not established by market forces; it is a personal or sentimental value.) with City of Canadian v. Guthrie, 87 S.W.2d 316, 318 (Tex. Civ. App.Amarillo 1932, no writ) (excluding sentimental value from intrinsic value measure); and Redmon, 43 S.W.2d at 268 (same). The Fort Worth court disagreed with the Austin courts interpretation of Heiligmann as limiting special value to economic considerations alone. Medlen, 353 S.W.3d at 579. When Heiligmann is read in its entirety, however, it is clear that when the Court mentioned special or pecuniary value of a dog to its owner, it was referring to economic value ascertained by reference to the dogs usefulness or servicesnot value attributed to companionship or other sentimental considerations. Heiligmann, 16 S.W. at 932; see Petco, 144 S.W.3d at 561.
11
Petco, 144 S.W.3d at 565 (As an intermediate appellate court, we are not free to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court unless and until the high court overrules them or the Texas Legislature supersedes them by statute.); see Mireles, 2010 WL 3059241 at *7 (following Heiligmann); Zeid, 953 S.W.2d at 369-70 (same); Bueckner, 886 S.W.2d at 371 (same).
12
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II.
THE COURTS POST-HEILIGMANN DECISIONS WOULD LIMIT RECOVERY FOR THE LOSS OF A PET TO THE PETS ECONOMIC VALUE EXCLUDING SENTIMENTAL CONSIDERATIONS. To justify its departure from the rule of Heiligmann, the court of appeals cited
three subsequent decisions of this Court in support of its holding that companionship or sentimental value damages are now recoverable for the negligent destruction of an animal: Brown v. Frontier Theatres, Inc., Porras v. Craig, and City of Tyler v. Likes. None of these decisions support the recovery of companionship or sentimental damages for the loss of a pet. Moreover, the court of appeals ignored this Courts long-standing general rule for measuring personal property having no market or replacement value actual worth or value to the owner excluding sentimental considerationsan economic measure that echoes the rule articulated in Heiligmann. A. The General Rule for Measuring the Loss of Personal Property Having No Market or Replacement Value is Actual Economic Value to the Owner; the Sentimental Value Measure is an Exception that Applies Only to Heirlooms.
On the same day nearly fifty years ago, the Court issued two opinions addressing the measures of damages for personal property having no market or replacement value: Crisp v. Security Natl Ins. Co. and Brown v. Frontier Theatres, Inc.13 In Crisp, the Court reaffirmed that the general rule for measuring damages for personal property having no market or replacement value is an actual worth or value to the owner standard that excludes sentimental and other fanciful considerations.14 In Brown, the
13
Both Brown and Crisp were handed down on June 26, 1963. See Crisp, 369 S.W.2d at 326; Brown, 369 S.W.2d at 299. See Crisp, 369 S.W.2d at 328.
14
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Court created an exception to the general rule that allowed the recovery of sentimental damages for heirlooms, i.e., property having its primary value in sentiment.15 Importantly, in both decisions the Court made clear that these measures are available if, and only if, the property at issue has no market or replacement value. See Crisp,
369 S.W.2d at 328 (actual worth or value to owner may be awarded for personal property that has no market value and when replacement costs would result in economic gain to the plaintiff); Brown, 369 S.W.2d at 304-305 (sentimental value may be recovered for heirlooms because they have no market value which would adequately compensate their owner for their loss or destruction and are not susceptible of supply and reproduction). In its discussion of the Courts decisions, the court of appeals completely overlooked the general rule that measures personal property loss by the actual value of the property to the owner. This oversight, combined with the courts misinterpretation of Browns narrowly drawn sentimental value exception as applying to all types of personal property, not just heirlooms, led the court of appeals to the mistaken conclusion that sentimental damages may now be recovered for the loss of a dog. See Medlen, 353 S.W.3d at 580. The Petition should be granted to clear up the confusion and increased liability for personal property damage that will inevitably result from such a flawed and aberrant ruling. B. Actual Value Damages under Crisp v. Security Natl Ins. Co.
In Crisp, the principal question was the correct measure of damage to be applied to used household goods, furniture, clothing, and other personal effects that were
15
See Brown, 369 S.W.2d at 304-305.
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destroyed in a fire. 369 S.W.2d at 327-28. The court of appeals held that the measure was the reasonable cost of replacing the property allowing for depreciation. Id. at 328. The Court disagreed: It is a matter of common knowledge and of usual acceptation by the courts that used household goods, clothing and personal effects have no market value in the ordinary meaning of that term. Likewise, replacement costs do not afford a fair test. The measure of damages that should be applied in case of destruction of this kind of property is the actual worth or value of the articles to the owner for use in the condition they were at the time of [the loss] excluding any fanciful or sentimental considerations. Id. (citations omitted) (emphasis supplied). The Court explained that this actual loss of money measure has long been the rule generally in this state for used household furniture and other personal effects. Id. at 329 (citing International & G.N. Ry. Co. v. Nicholson, 61 Tex. 550 (1884)). The long-standing actual value measure recognized in Crisp has been reaffirmed by the Court in subsequent decisions, and applied to a variety of personal property items
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in numerous decisions of the states courts of appeals.16 One court of appeals has even applied the measure to a dog. In Rowe v. Watkins, the El Paso Court of Appeals was asked to determine whether the trial court had abused its discretion in requiring a $50,000 bond to suspend a judgment establishing ownership of a dog. 324 S.W.3d at 112-13. In determining what amount of security is required under appellate rule 24.2 to adequately protect the judgment creditor against loss or damage that the appeal may cause,17 the court held: [I]f we were discussing [the dogs] loss to either party in terms of judgment damages, we would be limited to considering [the dogs] destruction in terms of her actual worth or value less any fanciful or sentimental considerations. [citation omitted] As the record is completely lacking in evidence that [the dog] had any value separate from her sentimental worth, we are left with a value of zero in terms of a basis for setting a monetary security.
16
E.g., Low, 79 S.W.3d at 566; Chance, 590 S.W.2d at 704 (Tex. 1979); Mew, 564 S.W.2d at 377 (Tex. 1978); See Vien v. Del Buono, 2010 WL 5117248 (Tex. App.Waco Dec. 15, 2010, pet. denied); Yazdani-Beioky v. Tremont Tower Condo. Assn, Inc., 2011 WL 1434837 (Tex. App.Houston [1st Dist.] Apr. 14, 2011, no pet.); Blackmon v. Mixson, 755 S.W.2d 179 (Tex. App.Dallas 1988, no writ); Gannett Outdoor Co. of Tex. v. Kubeczka, 710 S.W.2d 79 (Tex. App.Houston [14th Dist.] 1986, no writ); Bennett v. Imperial Ins. Co., 606 S.W.2d 7 (Tex. Civ. App.Dallas 1980, writ refd n.r.e.); First Preferred Ins. Co. v. Bell, 587 S.W.2d 798 (Tex. Civ. App.Amarillo 1979, writ refd n.r.e.); American Trans. & Storage Co. v. Reichley, 560 S.W.2d 196 (Tex. Civ. App.Amarillo 1977, writ refd n.r.e.); Spears v. Huber, 2012 WL 933780 (Tex. App.Amarillo Mar. 20, 2012, no pet. h.) (conversion case); Henson v. Reddin, 358 S.W.3d 428 (Tex. App.Fort Worth 2012, no pet.) (same); Langhorne v. Miller, 2009 WL 2365592 (Tex. App.Houston [14th Dist.] Aug. 4, 2009, no pet.) (same); Burns v. Rochon, 190 S.W.3d 263 (Tex. App.Houston [1st Dist.] 2006, no pet.) (same); Marley v. Wallace, 2002 WL 31761150, (Tex. App.Tyler Dec. 11, 2002, no pet.) (same); Ogden v. Wilson, 649 S.W.2d 780, (Tex. App.Austin 1983, writ refd n.r.e.) (same); Wesley v. Wesley, 2000 WL 34234977 (Tex. App. Eastland Mar. 30, 2000, no pet.) (same); see also Wright v. Gernandt, 559 S.W.2d 864, 870 (Tex. Civ. App.Corpus Christi 1977, no pet.) (distinguishing categories of personal property for which sentimental and actual value measures apply).
17
TEX. R. APP. P. 24.2(a)(3).
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Id. at 113 (emphasis supplied).18 While there are slight semantic differences between the actual value measure applied to the dog in Rowe and the rule articulated in Heiligmann, they embody the same standards for measuring the value of a dog as personal property. 19 Both measures apply only to personal property allegedly having no market or replacement value; both measures assess the value of the property on the basis of its actual economic value to the owner at the time of the loss; and, both measures exclude sentimental considerations in calculating the propertys value. In every significant respect, the actual value measure is synonymous with Heiligmanns pecuniary value measure. To the extent there are any perceived differences between the two standards that might result in incongruent outcomes, granting the Petition would give the Court an opportunity to reconcile those differences and formulate a uniform standard for dogs and other pets. C. Sentimental Value Damages Under Brown v. Frontier Theatres, Inc.
In Brown v. Frontier Theatres, Inc., the question before the Court was whether the evidence was legally sufficient to support an award of monetary damages for heirlooms
In determining the actual value of a pet, the trier of fact might consider the amount the owner originally paid for the pet, money the owner spent on veterinary bills during the pets life, costs incurred in training the animal, including, as Heiligmann suggests, the loss of potential income or special services from the animal. Victor E. Schwartz & Emily J. Laird, Non-Economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule, 33 Pepp. L. Rev. 227 (2006); see Heiligmann, 16 S.W. at 933.
19
18
At least one commentator has noted the similarity between the two measures. See Non-Economic Damages in Pet Litigation, 33 Pepp. L. Rev. at 241. According to this commentator, the Heiligmann type of valuation applied in Petco is the same as the actual value approach adopted by numerous courts in other states, the vast majority of which, like Texas, exclude loss of companionship and other sentimental considerations from the damages calculation. Id. at 241-242.
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destroyed in a fire.20 The Court noted that, as a general rule, recovery for sentimental value for personal property cannot be had in a suit for the loss of property for personal use such as wearing apparel and household goods. Brown, 369 S.W.2d at 304. The Court then held that heirlooms are an exception to this general rule: It is a matter of common knowledge that items such as these generally have no market value which would adequately compensate their owner for their loss or destruction. Such property is not susceptible of supply and reproduction in kind, and their greater value is in sentiment and not in the marketplace. In such cases, the most fundamental rule of damages that every wrongful injury or loss to persons or property should be adequately and reasonably compensated requires the allowance of damages in compensation for the reasonable special value of such articles to their owner, taking into consideration the feelings of the owner for such property. [citations omitted] Where such special value is greater than the market value, it becomes the only criterion for the assessment of damages. [citation omitted] Brown, 369 S.W.2d at 305. In the years since Brown was decided, the sentimental value standard has been applied such personal effects as personal records, family correspondence, photographs, keepsakes, and artwork. See, e.g., Likes, 962 S.W.2d at 497; Gluck v. Hadlock, 2011 WL 944439 at *4 (Tex. App.Fort Worth Mar. 17, 2011, no pet.). In addition to the social and public policy arguments against the recovery of a dogs sentimental value discussed infra at 22-25, dogs and other pets do not fall within
The items included a wedding veil, shoes, and a lace collar belonging to the owners grandmother, a pistol belonging to the owners grandfather, a watch belonging to the owners great grandmother, and slumber spreads made by hand by the owners great, great, great grandmother. Brown, 369 S.W.3d at 304.
20
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Browns sentimental value exception.21
First, unlike heirlooms and other valuable
family keepsakes that are either unsalable or have no value to the owner other than sentiment, a dog generally does have a market value that will adequately compensate its owner. Factors courts may consider in determining a dogs market value include its purchase price, replacement cost, age and normal life span, its breed, degree and type of training, usefulness and desirable character traits, and breeding potential. See generally Heiligmann, 16 S.W. at 932; Non-Economic Damages in Pet Litigation, 33 Pepp. L. Rev. at 241. Second, while a family heirloom or keepsake may be irreplaceable, it is common knowledge that dogs are in high supply and capable of reproduction. A dog owner may experience grief when a dog dies as a result of a deep emotional bond, but the majority of dog owners can (and often do) replace dogs that have died with other dogs that provide comparable relationships. Indeed, because a dogs lifespan ranges from seven to sixteen years,22 many dog owners will own several dogs over the course of their lives. Thus, in virtually every case, either market value or replacement value will fully and reasonably compensate a dog owner for the dogs loss. In cases involving a dog allegedly having no market value, or a replacement value that would result in economic
The Medlens labeled their alleged damages as intrinsic, but they are, in fact, seekingand the court of appeals held they are entitled to recoversentimental damages. [Brief of Appellants at 3, 5]; Medlen, 353 S.W.3d at 581 (Because an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred in dismissing the Medlens action against Strickland. (emphasis supplied)).
21
See Susan J. Hankin, Making Decisions About Our Animals Health Care: Does it Matter Whether We Are Owners or Guardians?, 2 Stan. J. Animal L. & Poly 1, fn. 235 (2009) (average life expectancy of a dog is between seven and sixteen years, depending on the breed ); Robert L. Adair, Monkeys and Horses and FerretsOh My! Non-Traditional Service Animals Under the ADA, 37 N. Ky. L. Rev. 415, 430 (2010) (the average service dog lifespan is eight to ten years).
22
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gain to the owner,23 the appropriate measure under the Courts decisions is the dogs actual economic or pecuniary value to the owner less sentimental considerations. Because an owner whose dog has been negligently harmed can ordinarily recover fully for that loss through such economic damages, an alternative valuation based on sentiment or other fanciful factors to satisfy the most fundamental rule of damages that every wrongful injury be compensated does not come into play. See Likes, 962 S.W.3d at 497. III. THE INTRINSIC VALUE MEASURE ADOPTED IN PORRAS V. CRAIG DOES NOT INCLUDE SENTIMENTAL VALUE. The court of appeals reliance on Porras intrinsic value measure to support the conclusion that sentimental value damages may be recovered for the loss of personal property is obviously misplaced. Porras involved a suit for permanent damage to real property resulting, in part, from the defendants cutting down shade or ornamental trees on the owners property. Porras, 675 S.W.2d at 504. Ordinarily, in such a case, the Court observed that the measure of damages is the difference in the market value of the land immediately before and after the trespass. Id. There was, however, no evidence that the market value of the land had been reduced by cutting down the trees; the evidence showed that the property had actually increased in value. Id. at 506. In this situation, the Court held that the landowner is entitled to recover damages for the intrinsic value of the
23
It is difficult, if not impossible, to imagine a realistic scenario in which a dog cannot be replaced. Therefore, the question is not whether a dog can be replaced, but whether replacement value would overcompensate the owner. In such a case, replacement value would not afford a fair test, and the measure that should be applied is the actual value of the dog to the owner in accordance with Heiligmanns slightly modified version of that standard. See Crisp, 369 S.W.2d at 328; Heiligmann, 16 S.W. at 932.
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trees.24 Id. at 506. The Court remanded the case for a new trial, in the interest of justice, to allow the plaintiff to attempt to prove damages by an intrinsic value measure. 25 Id. The plaintiff did not seek, and the Court did not discuss, the sentimental value of the trees. Clearly, the court of appeals read too much into Porras. The Court did not hold that sentimental considerations may be included in measuring intrinsic value. In fact, Texas courts have held that sentimental value cannot be a basis for intrinsic damages. In two such decisions, the courts applied a type of intrinsic value measure to animals and held that sentimental considerations must be excluded from intrinsic value damages. In Youngs Bus Lines, Inc. v. Redmon, a public bus operated by the defendant ran over and killed a dog owned by the plaintiff, a blind newspaper vendor. Redmon,
43 S.W.2d at 267. The plaintiff brought suit for negligent destruction of the dog and, after trial, the jury awarded him $1,500 for the loss of the dog. Id. On appeal, the defendant bus company complained that the trial court did not charge the jury with the correct measure of damages in that it did not tell the jury that
Accord Lamar Co. Elec. Co-op Assn v. Bryant, 770 S.W.2d 921 (Tex. App.Texarkana 1989, no writ); Boyer, Inc. v. Texan Land and Cattle Co., 2001 WL 1590477 (Tex. App.Houston [14th Dist.] Dec. 13, 2001, no pet.); Garey Const. Co., Inc. v. Thompson, 697 S.W.2d 865 (Tex. App.Austin 1985, no writ); Miloszar v. Gonzalez, 619 S.W.2d 283 (Tex. Civ. App.Corpus Christi, 1981, no writ); Hamilton v. Fant, 422 S.W.2d 495 (Tex. Civ. App.Austin 1967, no writ); Moran Corp. v. Murray, 381 S.W.2d 324 (Tex. Civ. App.Texarkana 1964, no writ); Lucas v. Morrison, 286 S.W.2d 190 (Tex. Civ. App.San Antonio 1956, no writ).
24
Intrinsic is defined in Blacks as belonging to a thing by its very nature; not dependent on external circumstances; inherent; essential. BLACKS LAW DICTIONARY (9th ed. 2009). Intrinsic value is defined as the inherent value of a thing, without any special features that might alter its market value. Id.; cf. Rosenfeld v. White, 267 S.W.2d 596, 601 (Tex. Civ. App.Dallas 1954, writ refd n.r.e.) (distinguishing actual value measure from intrinsic value measure, and defining intrinsic value as the true, inherent and essential value of a thing, not depending on accident, place or person but the same everywhere and to everyone.).
25
Page 19
the value of the dog was its market value at the time and place where it was killed, if it had a market value, and, if it did not have a market value, then its value would be its intrinsic value to its owner.26 Id. Although the plaintiff alleged that the dog had a market value, no proof of market value was offered and admitted; the evidence, which the court of appeals determined was insufficient, was confined to the dogs special or intrinsic value. Id. Citing Heiligmann, the Redmon court sustained the defendants point, and reversed and remanded the case for a new trial. The court said: We have already stated that the measure of damages was the market value of the dog at the time and place where it was killed, or, in the absence of a market value, then the intrinsic or actual value to [the plaintiff]. Any peculiar or sentimental value placed upon the dog by [the plaintiff], or what he considered the dog worth to him, was not admissible. Id. at 268 (emphasis supplied). In City of Canadian v. Guthrie, a case with similar facts to this case, a city pound worker euthanized an old and ill, one-eyed bay mare after its owner failed to pay her board bill. The owner sued the city for the mares actual and intrinsic and sentimental value, alleging that the mare had no market value. In reversing the trial courts damages award, the court held: [S]entimental value is not recognized as a basis for damages. The measure of damages in the case of a wrongful killing of an animal is its market value, if it has one, and if not, then its actual or intrinsic value, with interest. [citations omitted]
26
Instead, the charge instructed the jury as follows: In determining the amount which will compensate the plaintiff for the loss of the dog, if any, you will be governed by the evidence relating to the training and usefulness of the dog and his services to the plaintiff and his special value to the plaintiff, if any. Id.
Page 20
Guthrie, 87 S.W.2d at 318 (emphasis supplied). The distinction that the Redmon and Guthrie courts made between intrinsic or actual value concept and sentimental value concept is still correct today. 27 Although the court of appeals rejected Redmon on the basis that it was decided before the sentimental value exception was recognized in Brown,28 the Courts decision in Crisp affirms the correctness of Redmons exclusion of sentimental considerations when valuing property that has no heirloom qualities and the owner can be fully compensated through the award of economic damages. The Petition should be granted to insure that other courts of appeals do not make the same mistake of conflating sentimental value with intrinsic value when valuing personal property.29 IV. CITY OF TYLER V. LIKES PROHIBITS RECOVERY OF LOST COMPANIONSHIP BASED SOLELY ON NEGLIGENT DAMAGE TO A DOG. The court of appeals also relied on City of Tyler v. Likes to support its conclusion that companionshipvalue damages a form of personal injury damages are recoverable for the wrongful death of a pet dog a type of personal property. See
See footnote 24 infra at 17. According to commentators, courts in other states have also used the terms intrinsic value and actual value interchangeably to the exclusion of sentimental value. See Non-Economic Damages in Pet Litigation, 33 Pepp. L. Rev. at 241. Although one Texas court of appeals has stated, in dicta, that intrinsic value is a sentimental value, the statement is unsupported. See Star Houston, 843 S.W.2d at 298. The court cited a 1979 edition of Blacks Law Dictionary which defines intrinsic value as the true, inherent and essential value of a thing, not depending upon accident, place or person but the same everywhere and to everyone. BLACKS LAW DICTIONARY at 739 (5th ed. 1979). Nowhere in the definition is there any mention of sentimental value.
28 29
27
See Medlen, 353 S.W.3d at 578. The court of appeals did not discuss or distinguish Guthrie.
Part of the courts confusion in this regard may be explained by the fact that the Medlens erroneously represented to the court of appeals that this Court has used the terms intrinsic value and sentimental value interchangeably. [Brief of Appellants at 5] There is no evidence in this Courts decisions that the Court uses the two terms interchangeably.
Page 21
Medlen, 353 S.W.3d at 579-80 (holding that the special value referenced in Heiligmann may derive from the companionship between a pet and its owner). Likes, however, prohibits the recovery of such damages. In Likes, the Court held that personal injury damages in the form of mental anguish based solely on negligent property damage is not compensable under Texas law. 962 S.W.2d at 497. The Medlens claim for loss of companionship and sentimental value damages is a personal injury claim that, just as the mental anguish claim in Likes, is based solely on negligent property damage. See Petco, 144 S.W.3d at 563. By allowing the Medlens to recover companionship and sentimental value damages for the negligent loss of their dog, the court of appeals has circumvented the rule of Likes that clearly forbids the recovery of personal injury-type damages based on solely on negligent damage to personal property. Of the many factors the Court examined in Likes in deciding that mental anguish is not compensable for personal property damage, the most pertinent factor here is the fact discussed infra at 16-17 that a property owner can ordinarily recover fully for the loss of property through economic damages: While few persons suffering serious bodily injury would feel made whole by the mere recovery of medical expenses and lost wages, many whose property has been damaged or destroyed will be entirely satisfied by recovery of its value. Because a plaintiff whose property has been harmed can ordinarily recover fully for that loss through economic damages, our reluctance to leave a legally injured plaintiff with no remedy at all, which has rightfully influenced courts to look favorably on awarding mental anguish damages, does not come into play in cases where the primary injury is to property. [citation omitted]
Page 22
Likes, 962 S.W.2d at 497.30 Since the Court has determined in Likes that personal injury damages for mental anguish are not recoverable based on negligent damage to personal property, a fortiori, a dog owner should not be permitted to recover personal injury damages for lost companionship in the form of intrinsic or sentimental damages based on negligent damage or destruction to a dog. As property, dogs are not persons, extensions of their owners, or any other legal entity where loss would ordinarily give rise to personal injury damages. Petco, 114 S.W.3d at 561. The Petition should be granted to affirm that, contrary to the court of appeals ruling, personal injury damages in the form of lost companionship are not compensable based solely on negligent damage to personal property.31 V. PUBLIC POLICY FORBIDS RECOVERY OF LOSS OF COMPANIONSHIP OR SENTIMENTAL VALUE DAMAGES FOR A DOG. Even if the Court is inclined to throw out the Heiligmann test and permit the recovery of companionship or sentimental value damages based solely on negligent harm to a dog, the Court should resist doing so for social and public policy reasons. See generally Amici Curiae Brief of the American Kennel Club, et al.; Brief of Amici Curiae
The discussion in Likes about Browns sentimental value measure may be explained by the fact that the damaged property in Likes included personal records, family correspondence, family photographs and keepsakes, the type of property having its primary value in sentiment. Likes, 962 S.W.2d at 493. The Court noted that the measure applicable to the other lost or damaged propertyfurniture, automobiles, and various assets of [the plaintiffs] interior decorating businesswas market value. Id. at 497. The Court did not discuss the actual value measure.
30 31
The Court in Likes did not decide the question of whether personal injury damages are recoverable for intentional, malicious, or grossly negligent conduct, nor is it being asked to decide that question here.
Page 23
Texas Municipal League, et al. at 3-11; Amicus Letter of Texas Civil Justice League at 23; Amicus Letter of Texas Veterinary Medical Association. As discussed above, the Medlens claim for lost companionship in the form of intrinsic or sentimental value property damages is analogous to a claim for lost human consortium. Thus, the Courts decisions in loss of consortium cases can inform its determination of whether the expansive new liability created by the court of appeals is justified. Paramount among the many factors the Court has taken into account recognizing loss of consortium causes of action is whether the cause of action is justified by a compelling social policy. Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003). For example, when the Court first allowed loss of consortium damages to compensate injury to the husband-wife relationship (the primary familial interest recognized by the courts), the Court did so to protect and provide a remedy for harm to the marriage relationshipan intimate relationship between two human beings. Whittlesey,
572 S.W.2d at 668. The Court cited similar social policy reasons when it subsequently extended loss of consortium liability to the human parent-child relationship.32 The Court, however, has narrowly cabined these extensions of common law to these two primary
32
See Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983) (establishing that a parent has the right to recover damages for the loss of the companionship and society resulting from the death of a child); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985) (establishing that a child has the right to recover damages for the loss of companionship and society resulting from the death of a parent).
Page 24
human relationships and rejected recovery for harm to other human relationships involving siblings, step-parents, grandparents, close friends and others.33 While the special relationship a dog owner has with mans best friend is important, it certainly is no more worthy of protection by the tort system than these valuable human relationships. It would, indeed, be anomalous to recognize a cause of action for loss of companionship for a fatal injury to a dog due to negligence when the dog owner has no right to recover for the wrongful death of a brother, sister, grandparent, step-child, or close human friend.34 The death of a pet undoubtedly has emotional consequences for its owner. There is, however, no social policy that compels the courts of this state to elevate the humandog relationship in the common law to the same status as a human familial relationship, and to attempt to protect that relationship by creating a cause of action for loss of pet companionship. To the contrary, sound public policy requires that such consequential damages end with the two primary human relationships this Court has recognized as needing special protection. See Roberts, 111 S.W.3d at 118. Without such a limit, liability for the negligent death of a companion animal would have no sensible or just stopping point. As the Wisconsin Supreme Court wisely
33
Roberts, 111 S.W.3d at 118; Reagan, 804 S.W.2d at 467; see Ford Motor Co. v. Miles, 967 S.W.2d 377, 383 (Tex. 1998).
34
Because a loss of companionship claim is derivative of the family members claim for personal injury, it would also be anomalous to allow a plaintiff to recover damages for such a loss for injury or death to a dog when the dog has no right to recover for its injuries. See Reagan, 804 S.W.2d at 467; Whittlesey, 572 S.W.2d at 667; Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406-07 (Tex. 1985).
Page 25
observed in rejecting the recovery of mental anguish damages for negligent destruction of a dog: First, it is difficult to define with precision the limit of the class of individuals that fit into the human [animal] companion category. Is the particular human companion every family member? The owner of record or primary caretaker? A roommate? Second, it would be difficult to cogently identify the class of companion animals because the human capacity to form an emotional bond extends to an enormous array of living creatures. Our vast ability to form these bonds adds to the richness of life. However, in this case, the public policy concerns relating to identifying genuine claims of emotional distress, as well as charging tortfeasors with financial burdens that are fair, compel the conclusion that the definition suggested by [the plaintiff dog owner] will not definitively meet public policy concerns.35 Rabideau, 627 N.W.2d at 802; see also Goodby, 79 A.2d at 1273-74. For more than one hundred years, the traditional rule in Texas has been that damages to pets are limited to economic value. Texas courts have prudently excluded sentimental value and loss of companionship from the calculation. The public policy reasons for this exclusion are clear: permitting the emotional value of a companion pet to be quantified in the measure of damages would place an unnecessary burden on the ever burgeoning caseloads of the courts in resolving serious tort claims for injuries to humans,
35
The most current Restatement of Torts draft published by the American Law Institute reaches the same rational conclusion: While pets are often quite different from other chattels in terms of emotional attachment, an actor who negligently injures anothers pet is not liable for emotional harm su ffered by the pets owner. Although there can be real and serious emotional disturbance in some cases of harm to pets (and chattels with sentimental value), lines, arbitrary at times, that limit recovery for emotional disturbance are necessary. (Injury to a close personal friend may similarly cause serious emotional disturbance but that harm is also not recoverable under this Chapter.) The rule against liability for emotional harm due to injury to a pet, especially in the case of veterinary malpractice, serves to make veterinary services more readily available for pets. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. & EMOT. HARM 46 (Tentative Draft 2012).
Petitioners Brief on the Merits Page 26
and lead to inherently subjective, easily inflatable, and potentially astronomical damage awards that would result in harm to those who are concerned for the welfare of animals by raising the costs of animal care. See Amici Curiae Brief of the American Kennel Club, et al. at 11-13; Brief of Amici Curiae Texas Municipal League, et al. at 5. The Petition should be granted to prevent the court of appeals opinion from ushering in these public policy consequences. VI. THE COURT OF APPEALS OPINION CONSTITUTES AN IMPERMISSIBLE ADVISORY OPINION BECAUSE IT IS UNDISPUTED THAT THE MEDLENS SUIT AGAINST STRICKLAND IS BARRED BY GOVERNMENTAL IMMUNITY UNDER FRANKA. Alternatively, the Petition should be granted to vacate the court of appeals opinion because it is an impermissible advisory opinion. It is undisputed that at the time Avery was accidentally euthanized, Strickland was acting within the general scope of her employment with the City. In the trial court, Strickland alleged that the Medlens suit is barred by official immunity under Section 101.106(f) of the TTCA. [CR 10; Tab 3] On appeal, Strickland argued in her sole crosspoint that, in the event the case is reversed and remanded to the trial court, she is entitled to be dismissed from the suit under Franka. [Brief of Appellee Carla Strickland at 7-8] The Medlens have conceded that, in light of Franka, their suit against Strickland is indeed barred by governmental immunity. [Response to Petition for Review at vi-vii, 68]
Page 27
The court of appeals decision to bypass the jurisdictional immunity issue, 36 and instead address the merits of the Medlens appeal, was clear reversible error that resulted in an impermissible advisory opinion on an issue that is, for all practical purposes, moot.37 Appellate courts are prohibited from deciding moot controversies. See National Collegiate Athletic Assn. v. Jones, 1 S.W.3d 83, 86 (Tex. 1999); City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex. App.Fort Worth 2001, no pet.). The Petition should be granted to vacate the court of appeals advisory opinion. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000); Gibson, 22 S.W.3d at 850. CONCLUSION The question of whether sentimental value damages may be recovered for negligent damage to a pet dog is of monumental importance to the jurisprudence of the state. The court of appeals advisory opinion sets a new standard for personal property damages that is at direct odds with the reasoned common law standards established by this Court, as well as the overwhelming majority of other courts that have addressed the issue. The result is uncertainty and confusion within the bench and the bar, and concern among a myriad of persons and entities over the extent of their potential liability for
Section 101.106 is an immunity statute. Franka, 332 S.W.3d at 367, fn. 9; TEX. CIV. PRAC. & REM. CODE ANN. 101.106. Governmental immunity deprives a court of subject matter jurisdiction. Reata Constr. Co. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006); Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
36
E.g. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-851 (Tex. 2000); Texas Assn of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); see Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825, 837 (Tex. App.Austin, 2010, no pet.); Juarez v. Texas Assn of Sporting Officials El Paso Chapter, 172 S.W.3d 274, 278 (Tex. App.El Paso 2005, no pet.); Sosa By & Through Grant v. Koshy, 961 S.W.2d 420, 424 (Tex. App.Houston [1st Dist.] 1997, no pet.).
37
Page 28
unintentional harm to an animal. The Petition should be granted to decide this important issue, and in the interests of justice and sound public policy, the decision of the court of appeals should be reversed. PRAYER For all of the reasons above, Strickland prays that the Court grant the Petition, reverse and/or vacate the court of appeals opinion and judgment, and render judgment affirming the dismissal of the Medlens claims against Strickland. Respectfully submitted, /s/ John H. Cayce, Jr. John H. Cayce, Jr. State Bar No. 04035650 john.cayce@kellyhart.com Alison M. Rowe State Bar No. 24032717 alison.rowe@kellyhart.com Mallory A. Beagles State Bar No. 24078212 mallory.beagles@kellyhart.com Kelly Hart & Hallman LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280 Paul Boudloche State Bar No. 02694700 paulboudloche@mbllp.net MASON & BOUDLOCHE, LLP 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 76116-5544 Telephone: 817-338-0639 Telecopier: 817-336-0199 COUNSEL FOR PETITIONER
Page 29
CERTIFICATE OF SERVICE I hereby certify that on this 20th day of June, 2012, a true and correct copy of the foregoing document has been served on the following counsel of record and amicus counsel via electronic mail: Randall E. Turner rturner@galyen.com BAILEY & GALYEN 1901 W. Airport Freeway Bedford, Texas 76021 Sondrea King sondreaking@gmail.com Susan Bleil bleil@charter.net BLEIL & KING 5012 Birch Hollow Lane Fort Worth, Texas 76132 Counsel for Respondents George S. Christian george@thechristianco.com 400 West 15th Street, Suite 400 Austin, Texas 78701 Counsel for Amicus Texas Civil Justice League Robert Fugate Assistant City Attorney City of Arlington 101 South Mesquite Street, Suite 300 Box 90231 Arlington, TX 76004-3231 Counsel for Amici City of Arlington and Texas Municipal League Elizabeth Choate General Counsel echoate@tvma.org 8104 Exchange Drive Austin, TX 78754 Counsel for Amicus Texas Veterinary Medical Association Manuel Lopez DMLopez@shb.com SHOOK, HARDY & BACON, LLP 600 Travis Street, Suite 1600 Houston, Texas 77002-2992 Counsel for Amici American Kennel Club, et al. /s/ Alison M. Rowe Alison M. Rowe
Page 30
No. 12-0047
IN THE SUPREME COURT OF TEXAS CARLA STRICKLAND, Petitioner, v. KATHRYN AND JEREMY MEDLEN, Respondents. On Petition for Review from the Second Court of Appeals at Fort Worth, Texas No. 02-11-00105-CV INDEX TO APPENDIX FOR PETITIONERS BRIEF ON THE MERITS Tab 1 - Medlen v. Strickland, 353 S.W.3d 576 (Tex. App.Fort Worth 2011, pet. filed). Tab 2 - Plaintiffs First Amended Petition Tab 3 - Carla Stricklands Original Answer Subject to the Plea in Abatement Tab 4 - Carla Stricklands Special Exceptions to Plaintiffs First Amended Original Petition Tab 5 - Order on Special Exceptions to Plaintiffs First Amended Original Petition Tab 6 - Plaintiffs Second Amended Petition Tab 7 - Agreed Order of Dismissal Tab 8 - Carla Stricklands Special Exceptions to Plaintiffs Second Amended Petition Tab 9 - Order on Carla Stricklands Special Exceptions to Plaintiffs Second Amended Petition
TAB 1 Medlen v. Strickland, 353 S.W.3d 576 (Tex. App.Fort Worth 2011, pet. filed).
576 Tex.
353 SOUTH WESTERN REPORTER, 3d SERIES 1. Animals O 4 4 Damages O 1 0 5 Dog owners could be awarded damages based on sentimental value of euthanized dog, as required for dog owners to have stated claim on which relief could be granted, in action arising out of animal shelter employee's alleged negligence resulting in euthanization of dog; case law provided for recovery of ''special value'' of dog, and such special value could be derived from attachment that owners felt for dog. 2. Animals O 1 . 5 ( 4 ) Dogs are personal property under state law.
the newly discovered evidence in the same manner as in a motion for new trial based on newly discovered evidence. 8 The majority has correctly addressed the issues before us as the law now stands. I respectfully ask the Supreme Court of Texas to reconsider the standard of review for summary judgments in cases involving appeals from administrative rulings based on substantial evidence.
i KEY N U M B E R SYSTEM >
Kathryn and Jeremy MEDLEN, Appellants, v. Carla STRICKLAND, Appellee. No. 02-11-00105-C V. Court of Appeals of Texas, Fort Worth. Nov. 3, 2011. Reconsideration En Banc Overruled Dec. 1, 2011. Background: Dog owners brought action against employee of animal shelter regarding alleged negligence resulting in euthanization of dog. The County Court at Law No. 1, Tarrant County, Don Pierson, J., dismissed action. Owners appealed. Holding: The Court of Appeals, Lee Gabriel, J., held that dog owners could be awarded damages based on sentimental value of euthanized dog, as required for dog owners to have stated claim on which relief could be granted. Reversed and remanded.
8. See Fantasy Ranch, Inc. v. City of Arlington,
Randall E. Turner, Hurst, for Appellants. R. Paul Boudloche, Fort Worth, for Appellee. PANEL: WALKER, MEIER, and GABRIEL, J J . OPINION L E E GABRIEL, Justice. Appellants Kathryn and Jeremy Medlen appeal the dismissal of their suit against Appellee Carla Strickland for the death of their dog. We will reverse and remand the case to the trial court. Background Facts On or about June 2, 2009, the Medlens' dog, Avery, escaped from their backyard
2006, pet. denied).
193 S.W.3d 605, 615 (Tex.App.-Fort Worth
MEDLEN v. STRICKLAND
Cite as 353 S.W.3d 576 (Tex.App.Fort Worth 2011)
Tex.
577
and was picked up by animal control. Jeremy went to the animal shelter to retrieve Avery but did not have enough money with him to pay the fees. He was told that he could return for the dog on June 10, and a ''hold for owner'' tag was placed on Avery's cage, notifying employees that the dog was not to be euthanized. On June 6, Strickland, a shelter employee, made a list of animals that would be euthanized the following day. She put Avery on the list, contrary to the ''hold for owner'' tag. Avery was put down the next day. When the Medlens returned for the dog a few days later, they learned of his fate. The Medlens sued Strickland, alleging that her negligence proximately caused Avery's death. 1 They sued for Avery's ''sentimental or intrinsic value'' because he had little or no market value and was irreplaceable. Strickland specially excepted to the Medlens' claim for intrinsic value damages on the grounds that such damages are not recoverable for the death of a dog. The trial judge granted the special exception and ordered the Medlens to amend their pleadings to ''state a claim for damages recognized at law.'' The Medlens filed an amended petition but reasserted that they were seeking damages for Avery's ''intrinsic value'' only. Strickland specially excepted again, and the trial judge dismissed the lawsuit. The Medlens appealed. Discussion [1] The Medlens' sole issue on appeal is whether a party can recover intrinsic or sentimental damages for the loss of a dog. In issues that turn on a pure question of law, we do not defer to the legal determinations of the trial court but instead apply a de novo standard of review. El Paso
1. The Medlens also sued another employee of animal control, whom they later nonsuited.
Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999). [2] The Medlens argue that the Texas Supreme Court has repeatedly held that where personal property has little or no market value, damages can be awarded based on the intrinsic or sentimental value of the personal property. City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex.1997); Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984); Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 304-05 (Tex. 1963). Dogs are personal property under Texas law. Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex.Civ.App.-Fort Worth 1981, no writ). Therefore, the Medlens argue that they should be able to recover the intrinsic value of their dog. Strickland contends that under an 1891 supreme court case, dogs are treated differently under the law than other personal property. See Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex.1891). For dogs, a party can only recover the market value, if there is any, or a special or pecuniary value determined by the usefulness or services of the dog. Id. at 932. Strickland argues that Heiligmann prohibits consideration of the sentimental value of the animal in determining its ''usefulness'' to the owner. In Heiligmann, the trial court awarded damages to the appellees after three of their dogs were maliciously poisoned by Heiligmann. Id. at 931. The dogs ''were of a fine breed, and well trained''; one of the dogs used different barks to signal to appellees whether an approaching person was a man, woman, or child. Id. at 932. One of the appellees testified that the dogs could have been sold for $5 each, but that she would not have been willing to part with them for $50 apiece. Id. Heiligmann
He is not a party to this appeal.
578 Tex.
353 SOUTH WESTERN REPORTER, 3d SERIES Strickland points out that several courts of appeals' decisions have reaffirmed Heiligmann by holding that damages for the loss of a dog can only be based on market value or a value ascertained from its usefulness or services, not companionship or sentimental value. See Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex.App.-Austin 2004, no pet.) (interpreting Heiligmann to mean that special or pecuniary value can only be derived solely from the dog's usefulness or services, not from companionship or other sentimental considerations); Zeid v. Pearce, 953 S.W.2d 368 (Tex.App.-El Paso 1997, no writ) (denying damages for pain and suffering or mental anguish for the loss of a pet); Bueckner v. Hamel, 886 S.W.2d 368 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (using expected stud fees to determine pecuniary value); Young's Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex.Civ.App.-Beaumont 1931, no writ) (stating that peculiar or sentimental value of a dog or what it was worth to its owner is not admissible). Redmon was decided more than thirty years before the Texas Supreme Court held in Brown that sentimental damages could be awarded for personal property. We disagree with Redmon regarding the sentimental value of a dog to its owner based on later supreme court decisions. We also disagree with Strickland's position that Bueckner supports the idea that sentimental value is not recoverable. In that case, the plaintiff sued the defendant for shooting two of his dogs. Bueckner, 886 S.W.2d at 370. The trial court determined that the dogs had a market value, pecuniary value, intrinsic value as companions, and special value as loved pets, and it awarded the plaintiff $1,825 in ''actual damages.'' Id. The defendant appealed, arguing that the court had erred by basing the award on the value of the puppies that
argued that there was no evidence presented supporting a market or pecuniary value of the dogs or that their use or service was valuable to their owner. Id. The court upheld the damages award, holding that the value of a dog may be determined by ''either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog.'' Id. In that case, ''the evidence [was] ample showing the usefulness and services of the dogs, and that they were of special value to the owner.'' Id. The court reasoned that the jury could infer the value of the dogs ''when the owner, by evidence, fixes some amount upon which they could form a basis.'' Id. The Texas Supreme Court has not dealt directly with the value of a lost pet in the 120 years since Heiligmann, but in more recent cases, it has explicitly held that where personal property has little or no market value, and its main value is in sentiment, damages may be awarded based on this intrinsic or sentimental value. See Likes, 962 S.W.2d at 497 (reaffirming recovery of sentimental value for items that have little or no market value, such as family correspondence, family photographs, and keepsakes); Porras, 675 S.W.2d at 506 (adopting ''intrinsic value rule'' and awarding intrinsic value for the loss of shade or ornamental trees); Brown, 369 S.W.2d at 304-05 (awarding sentimental damages for loss of items such as wedding veil, shoes, point lace collar, watch, and slumber spreads). The Medlens contend that the notion that the Texas Supreme Court intended to exclude dogs from the intrinsic value rule appears nowhere in these subsequent opinions. They argue that to treat a dog differently than all other personal property would be irrational.
MEDLEN v. STRICKLAND
Cite as 353 S.W.3d 576 (Tex.App.Fort Worth 2011)
Tex.
579
the dogs would have produced in the future. Id. The appeals court agreed that the value of the dogs themselves, not the value of their unborn puppies, must be determined, but held that the evidence was both legally and factually sufficient to support the trial court's finding of actual damages ''based on the pecuniary value of the dogs to the [plaintiff].'' Id. at 371-72. In doing so, the court considered the breed of the dogs and their owner's plan to use them for breeding in the future. Id. As the concurrence in Bueckner points out, the defendant did not challenge the trial court's findings of fact that addressed the intrinsic value of the pets. Id. at 373 (Andell, J., concurring). The majority thus did not address that issue. Justice Andell wrote separately only to address an alternative basis for the award on which he had strong feelings. See id. at 377 (''I consider [pets] to belong to a unique category of 'property' that neither statutory law nor caselaw has yet recognized.''). Zeid also does not support Strickland's argument that sentimental value is not recoverable. In Zeid, plaintiffs sought to recover pain and suffering and mental anguish damages for the loss of their dog. 953 S.W.2d at 369. The court of appeals affirmed the trial court's ruling that pain and suffering and mental anguish cannot be recovered for the loss of a pet. Id. The court restated the rule from Heiligmann, allowing for either market value or special value based on the dog's usefulness or services. Id. The court discussed Porras, awarding intrinsic value for shade trees, and Bueckner, but it found these cases unhelpful because the plaintiff never pleaded special or intrinsic value. Id. at 369-70. As with Bueckner, the court in Zeid was silent on the issue of companionship and sentimental value. In Petco, the plaintiff was awarded damages, including lost wages, mental anguish,
emotional distress, and intrinsic value, for loss of companionship after her dog escaped from a groomer and was run over. 144 S.W.3d at 557. Petco appealed, asserting that as a matter of law the trial court could not award lost wages, mental anguish, counseling costs, and loss of companionship damages for the loss of a dog. Id. at 560. The court of appeals agreed, citing Heiligmann's rule of either market value or some special or pecuniary value based on usefulness or services of the dog. Id. at 561. The court went on to state, ''Heiligmann makes clear that the 'special or pecuniary value' of a dog to its owner refers solely to economic value derived from the dog's usefulness and services, not value attributed to companionship or other sentimental considerations." Id. Intrinsic value for loss of companionship was among the damages that were reversed. Id. at 565. We respectfully disagree with our sister court's interpretation of Heiligmann and its holding in Petco regarding intrinsic value for loss of companionship. Heiligmann does not say that special value is derived ''solely'' from usefulness or services and that it does not include companionship or sentimental value. Heiligmann says that the value of a dog ''may be'' ascertained from usefulness or services. 16 S.W. at 932. And nowhere does Heiligmann state what should be considered in assessing the usefulness or services of a dog. It certainly did not rule out companionship or sentimental value. The Heiligmann opinion never uses the term ''intrinsic value'' or ''sentimental value''; therefore, the opinion cannot preclude an award of damages never specifically discussed. The Heiligmann court reasoned, The law recognizes a property in dogs, and for a trespass and infraction of this right the law gives the owner his remedy. The wrong-doer cannot escape the
580 Tex.
353 SOUTH WESTERN REPORTER, 3d SERIES that had been purchased. We find little reason in this argument and do not believe that it reflects the attachment owners have to their beloved family pets. Finally, as Strickland has admitted, Texas law has changed greatly since 1891. Heiligmann was decided at a time when Texas law did not allow recovery for the sentimental value of any personal property. See, e.g., Mo., Kan. & Tex. Ry. Co. of Tex. v. Dement, 115 S.W. 635, 637 (Tex. Civ.App.-Dallas 1909, no writ) (''It seems to be well settled in this state that the measure of damages for the loss of articles which have no market value, and which cannot be replaced or reproduced, is the actual loss in money sustained by the owner by reason of his being deprived of such articles, and not any fanciful price that he might, for special reasons, place upon them.''). In that way, Heiligmann was ahead of its time by noting that the dogs ''were of special value to the owner.'' 16 S.W. at 932. As we noted above, sentimental damages may now be recovered for the loss or destruction of all types of personal property. See Likes, 962 S.W.2d at 497; Porras, 675 S.W.2d at 506; Brown, 369 S.W.2d at 304-05. Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet at least to the same extent as any other personal property. Cf. Bueckner, 886 S.W.2d at 377-78 (Andell, J., concurring) (''Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.''). Dogs are unconditionally devoted to their owners. Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the special
consequences of his acts by saying, 'You have suffered no damages,' for the law implies that some damages result from every illegal trespass or invasion of another's rights. Id. at 225-26, 16 S.W. 931. Strickland argues that the Medlens ''are asking this Court of Appeals to overturn one hundred and twenty years of law'' and that we are ''not empowered to make such a ruling.'' First of all, there is a difference between overruling one hundred and twenty years of law and overruling one onehundred-and-twenty-year-old case. Second, we are doing neither of those things. We are duty-bound to interpret Heiligm a n n in light of subsequent supreme court decisions which have developed and refined the law concerning intrinsic value damages. The Heiligmann court still stated that the dogs ''were of a special value to the owner.'' Id. at 226, 16 S.W. 931. That special value must be more than the market value of a well-trained dog. A dog's ability to use certain barks to alert its owner to the gender and general age of an approaching visitor would surely be included in its price if it were sold. We believe that the special value alluded to by the Heiligmann court may be derived from the attachment that an owner feels for his pet. Strickland attempts to distinguish this case from the supreme court decisions allowing sentimental damages for personal property by arguing that sentimental value is only recoverable for heirlooms or property that takes a long time to replace, such as trees. According to Strickland's position, intrinsic damages could be awarded for a sentimental photograph of a family and its dog, but not for the dog itself. Strickland's position might also allow intrinsic damages for a pet that had been inherited from a loved one, but not a pet
NATIONAL CITY BANK v. TEXAS CAPITAL BANK

Cite as 353 S.W.3d 581 (Tex.App.Dallas 2011)
Tex. 581
value of ''man's best friend'' should be protected. Because an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred in dismissing the Medlens' action against Strickland. We sustain the Medlens' sole issue on appeal. Strickland raises a cross-point, asking that the case be remanded if reversed, so that she may file a motion to dismiss on grounds of governmental immunity. Because we have sustained the Medlens' sole issue and are remanding the case to the trial court on that basis, we do not need to reach Strickland's cross-point seeking the same relief of remand. See Tex.R.App. P. 38.2(b)(2). Conclusion Having sustained the Medlens' sole issue on appeal, and because we do not need to reach Strickland's cross-point, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.
O | KEY N U M B E R S Y S T E M )
debtor, with respect to debtor's investment account after garnishor obtained judgment against debtor. The 68th Judicial District Court, Dallas County, Martin Hoffman, J., granted summary judgment to garnishor and denied garnishee's motion for summary judgment. Garnishee appealed. Holding: The Court of Appeals, Moseley, J., held that security interest of garnishee in debtor's account assets arose prior to garnishor's garnishment lien, and thus garnishor was entitled to no more than amount that garnishee paid debtor in violation of writ of garnishment. Affirmed as modified.
1. Garnishment O 1 3 A ''garnishee'' is a third party who owes a debt to or holds property of the debtor.
See publication Words and Phrases for other judicial constructions and definitions.
2. Garnishment O 1 1 A ''garnishor'' is a creditor of the debtor who requests the court to issue the writ of garnishment to the garnishee.
See publication Words and Phrases for other judicial constructions and definitions.
NATIONAL CITY BANK, A Subsidiary of National City Bank Corporation, a Delaware Corporation, Appellant, v. TEXAS CAPITAL BANK, N.A., A National Banking Association, Appellee. No. 05-10-00028-CV. Court of Appeals of Texas, Dallas. Nov. 23, 2011. Background: Garnishor filed garnishment proceeding against garnishee, a bank, and
3. Garnishment O 1 Garnishment is a statutory proceeding whereby property of the debtor that is in possession of the garnishee is applied to the payment of the debt owed by the debtor to the garnishor. V.T.C.A., Civil Practice & Remedies Code 63.001 et seq.; Vernon's Ann.Texas Rules Civ.Proc., Rules 657-679. 4. Garnishment O 1 0 5 In a garnishment action, a garnishor is subrogated to the rights of the debtor
TAB 2 Plaintiff's First Amended Petition
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'JARS ANT O O i f t T V
Cause No- 09-75521-1
2M90EC30 PHI': 35
fOKaSOH
KATHRYN AND JEREMY MEDLEN
IN THE
COUlNTy CO^J%TAT L A W
BY.
V.
NUMBER ONE
KEANE MENEFEE
TARRANT COUNTY, TEXAS
PLAINTIFF'S FIRST AMENDED P E T m O N AND REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: Kafhryn and Jeremy Medlen, Plaintiffs, file this suit against Keane Menefee and Carla Stricklajid and show the followmg". Discovery Control Plan 1. Plaiatiffi intend for discovery to be conducted under Level.3 pursuant to Rule 190,4 of the Texas Rules of Civil Procedure. Parties 2. The plaintiffs are residents of Tarrant County, Texas, The lasttihreedigits of Kathryn . Medlen's Social Security number are 154 and the last three digits of Jeremy Medlen's Social Security Number are 609.
3, The defendant, K'eane Menefee, is an individual residing in Tarrant County, Texas and has appeared and a&swered hereiiL 4. The defendant, Carla Strickland, is an individual residing in Tarrant County and may be served with process at 4900 Martin St., Fort "Worth, Texas 76119. Jurisdiction and Venue 5. This cowt has jurisdiction over this cause under Section 25.003 of the Texas Government
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Code because this is a civil matter and the amount in controversy exceeds $500 but does not exceed $100,000. Venue i$ proper in Tarrant County under Sections 15.002(1)
because the events giving rise to the claim occurred in Tarrant County. Facts of the Case 6. On or about June 2, 2009 Kathryn and Jeremy Medlen's dog, "Avery", escaped from their backyard, Aveiy was picked up by one or more employees of the Aniinal Care and Control Division of the City of Fort "Worth. On that same day Jeremy Medlen went to the animal shelter operated by the Animal Care and Control Division and discovered that Avery was h their custody. He was told that he would have to pay 3!95 to take
possession of Avery. He only had $80 in his possession at the time and was told he could return any time during the next five days to pay the money and get Avery* Hie following day Kathryn Medlen and her son went to the animal shelter with enough money to get Avery, However, she was told that Avery would not be released until a veterinarian implanted a microchip into Avery and gave him a rabies vaccination. She was told that the veterinarian had not arrived yet. Later that day Jeremy Medlen telephoned, the
animal shelter and was told that the veterinarian was not coming in that day and would not be back until the following Monday. He was told to return on Monday when he could take possession of Aveiy. Hie following Monday Jeremy Medlen and his two children went to the animal shelter to pick up Avery and learned, to their horror, that Avery was dead. The defendant had either killed him or ordered that he be killed.
Negligence of Defendants The negligence of the defendants proximately caused the death of Kathryn and Jeremy Medlen's dog, Aveiy, and the damages described below. Specifically, the defendant were negligent in: a* Killing Avery when they knew or should'have known that Aveiy had owners who bad reclaimed him; b. Ordering the killing of Avery when they knew or should have known that Avery's owners were coining to reclaim him
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c. Killing Avery in violation of the rules, policies, and procedures of the City of Fort Worth which prohibited him fjram killing Avery under the circumstances.
No Immunity
8. This lawsuit is nof brought under the Texas Tort Claims Act and the defendants are ngj being sued in their official capacities. The defendants are sued personally in their individual capacities. At all times material to this cause of action the defendants were performing ministerial duies. They did not act in good faith in that no reasonable prudent animal control employee in the defendants' position could have believed that Avery should be killed.
Damages
9. Kathryu and Jeremy Medlen were devastated by the loss of Aveiy, who was like a family member to them. Avery had little or no market value. JESs sentimental or intrinsic value to Kathryn and Jeremy Medlen was ffcr greater than any market value he may have had. Thereforej Katitfyn and Jeremy Medlen bring this action to recover the damages for the sentimental or intrinsic value of Avery to Kathryn and Jeremy Medlen.
Prayer
10. Kathryn and Jeremy Medlen pray that the defendants be cited to appear and answer .this lawsuit aad that after a trial they recover a judgment against the defendants, jointly and seyeraliy, for actual damages within the jurisdictional limits of this Court, for costs of court, for prejudgment and post judgment interest, and for such other relief at law or in equity to which they may be justly entitled.
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Request for Disclosure
11. Pursuant to Texas Rule of Civil Procedure 194 the defendant, Carla Stiicldand is requested to disclose, within fifty (50) days after ssrvice of this request, the information or material described in Rule 194.2.
Respectfully submitted, TURNER & McKENZIE, PC
By:.
State BaxTO? te1800 Norwood Dr., Suite 100 ' Hurst, Texas 76054 Telephone; $17-282-3868 Fax: 817-268-1563 Email: randv@tuniermckenzie.com
ATTORNEY FOR PLAINTIFFS
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CERTIFICATE OF SERVICE I hereby certify that .a true and correct copy of the foregoing instrumeat has been served upon the Attorney of Record of all parties to the atovêirtitled and numbered cause in accordance with TEX. H CIV. P. 21a, on this r O ^ ^ a y of , 200J, by the following method; personal delivery v / M e p h o n i c document transfer (fax) cettifiedmail courier receipted delivery
Vxa Facsimile: 817.392,8359 Luis Fiejroa Office of the City Attorney 1000 Throcktnorton Street Fort Worth, Texas 76102 !R E. THOMAS WTHGKENZIE
bob
TAB 3 Carla Strickland's Original Answer Subject to the Plea in Abatement
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DUPLICATE
CAUSE NO. 2009-7552-1-1 KATHRYN AND JEREMY MEDLEN IN THE COUNTY COURT
Plaintiffs,
AT LAW NO. 1
KEANEMENEFEE Defendant.
TARRANT COUNTY, TEXAS s Z S o 2
CARLA STRICKLAND'S ORIGINAL ANSWER 3 SUBJECT TO THE PLEA IN ABATEMENT !
TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Carla Strickland, one of the Defendants in the above
! U j *r<
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*
3;
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...
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numbered cause, and raakes and files this, her Original Answer Subject to Carjla Stri<^land?p Plea in Abatement filed concurrently herein, and in support thereof would show unto the Court as follows:
x *
Carla Strickland would reassert her Plea in Abatement as if filed herein and would ask that this Court hear the Plea in Abatement and grant same until such time as the terms and conditions stated within the Plea in Abatement have been complied with and this Court reassumes its authority to proceed with this cause of action. Rule 85 TRCP.
n.
Subject to the Plea in Abatement, this Defendant would deny generally the factual allegations of the Plaintiffs' Original Petition and demand strict proof thereof.
m
. Additionally, and in the alternative, Carla Strickland would assert the defense of official immunity and would show the Court that she is not liable because of her immunity to suit.
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WHERJEFORE, PREMISES CONSIDERED, Carla Strickland prays that tke Court grant the Plea in Abatement and abate this cause of action unti] such time as the terms and conditions allow this Court to proceed, and thereafter set this matter down for a trial and enter a judgment in accordance with the law, the pleadings, and the evidence, and for such other and fUrther relief, both legal and equitable, to which she may be justly entitled. Respectfully submitted,
PanlBoudloche SBN: 02694700 _ MASON & BOUDLOCHE, LLP 1200 Summit Avenue, Suite 700 Fort Worth, Texas 76102 TEL 817/338-0539 FAX 817/336-0199
Attorneyfor Carla Striddcmd

CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing Carla Strickland's Original Answer Subject to the Plea in Abatement has beenfe&edand mailed on this day of January, 2010, to: Randall E. Turner Turner & McKenzie, PC 1800 Norwood Dr., Suite 100 Hurst, TX 76054 FAX: 817-268-1563
Attorneyfor Plaintiffs '
Attorneyfor Ke'ane Menefee

Paul Btmdloche
Mr. Luis Fierros City Attorney's Office City of Fort Worth 1000 Tbrockmoiton St. Fort Worth, TX 76102-6311 FAX: 817-392-8359
ou
TAB 4 Carla Strickland's Special Exceptions to Plaintiff's First Amended Original Petition
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r
CAUSE NO. 2009-75521-1 KATHRYN AND JEREMY MEDLEN IN THE COX. Plaintiffs,
V.
m
V
V.
CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Cark Strickland, one of the Defendants in the above entitled and nmnbered cause, and makes and files this, her Special Exceptions to the Plaintiffs First Amended Original Petition and Request for Disclosure, and in support thereof would show unto the Court as follows: L Plaintiffs factual allegations as stated in Paragraph 6 of the Plaintiffs First Amended Original Petition is a suit in negligence for the loss of the plaintiffs pet dog "Avery." For plaintiffs claim for damages, plaintiff claims no market value for Aveiy, but seeks damages for Avery's sentimental or intrinsic value to the plaintiffs.
n.
Defendant Carla Strickland files this Special Exception to Paragraph 9 of the Plaintiffs First Amended Original Petition, in which the plaintiff states her claim for damages. Plaintiff seeks recovery not for the market value of Avery, but rather "Kathryn and Jeremy Medlen bring this action to recover the damages forthe sentimental or intrinsic value of Avery to Kathryn and
CAUSE NO. 2005-75521-1; Kathryn and Jeremy Medlen K Xeane Menefee; CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION
Page 1
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Jeremy Medlen." Texas law does not allow the recovery of sentimental or intrinsic value for tlie loss of one's pet dog. Dogs are property, and damages for the loss of the dog would "be either "a market value, if the dog has any, or some special or pecuniary value to the owner, that may he'
ascertained by reference to the usefulness and services of the dog." Heiligmam v. Rose, 81 Tex.
222,16S.W.31 (1891). A "special or pecuniary value to the owner" might be an economic value specific to that owner, such as a dog specifically trained to assist someone with a
disabilily." Mirehs v. Mormon, 2010 WL 3059241 (Tex. App - Austin* 2010, memorandum
opinion). As recently as 2004, the Austin Court of Appeals reaffirmed the Heiligmam v. Rose decision when the plaintiff was denied damages for mental angaish, counseling cost, intttosic
value and loss of companionship. Petco Animal Supplies, Inc., v. Schuster, 144 S.W.Bd 54 (Tex,
App. - Austin, 2004, no writ history) (see attached copy of opinion). In Petco, the court specifically noted "Heiligmaim precludes the award of intrinsic value damages to Schuster, as
she relies solely on sentimental considerations." Petco Animal Suppli&s, Inc., at 564,
UX Defendant Carla Strickland seeks the Court to order the plaintiff to replead their claims for damages to plead a claim of damages allowed by Texas law. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set these Special Exceptions down for a hearing, and upon hearing the Special Exceptions grant the same, and order the plaintiffs to replead hy a date certain, or to dismiss the plaintiff s cause of action, and for such other and further relief both legal and equitable to which this party is entitled. Respectfully submitted,
CAUSE NO. 2009-75521-1; Katbtyn and Jeremy MedUn V. Ksane MeneM CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAMTIFP'S FIRST AMENDED ORIGINAL PETITJON Page 2
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Pam Boudloche SBN: 02694700 MASON & BOUDLOCHE, LLP 1200 Swmnit Avenue, Suite 700 Fort Worth, Texas 76102 TEL 817/338-0639 FAX 817/336-0199
Attorneyfor Carlo. Strickland

CERTIFICATE Of CONFERENCE
(
I certify that I have confeired with the attorney for the plaintiff on the above and foregoing Special Exceptions on October 21,2010, and that we are unable to agree, and that this matter needs to be presented to the Court. Signed this / day of Novembers 2010.
Paul Boudloche CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing Special Exceptions has been faxed and mailed on this. / _ day of Octoterj 2010, to:
ptwutx. jyns-
AttorneyforTlaintiffs
Randall E. Turner Turner & McKenzie, PC 1800 Norwood Dr., Suite 100 Hurst, TX 76054 FAX: 817-268-1563
Mr. Luis Fierros City Attorney's Offtee City of Fort Worth 1000 Throckcaorton St Fort Worth, TX 76102-6311 FAX: 817-392-8359
Attorneyfor Keane Menefee

Patil Boudloche
CAUSE NO. 2009-75521-1; JCatfuyn and Jersmy MedUn V. Keua tf&n&ftr, CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION Page 3
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Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (2004)
144 S.W.3<i 554

Court of Appeals of Texas, AustitL PETCO ANIMAL SUPPLIES, INC., AppeHant v, Carol SCHUSTER, AppelleeNo. 03-03-00354-CV. Synopsis BackgrDund: Dog-owner brought acdon against pet store to recover damages allegedly incurred when dog was killed m traffic after escaping from pet grooroer. The 200th Judicial District Couit Travis County, Daxlene Byrne, J 4 entered default judgment in favor of dog-owner and awarded damages. Pet store appealed. April 2 9 , 2 0 0 4 .
Holdings: The Court of Appeals, Bob Pemberton, J^ held that: 1 dog-owner was not entitled to damages for mental anguish, absent pet store's Ul-will, animus or desire to harm herpetsonally; 2 dog-owner was not entitled to recover counseling expenses; 3 dog-owner was not entitled to intrinsic vatoe damages; 4 dog-owner was not entitled to damages for lost wages; and 5 dog-owner was not entitled to exemplary damages. Affirmed in part and reversed in part Attorneys and Law F i r o s *557 Christian J. Von Wupperfeld, William W. Knieger, HI, Joanna R. Lippman, Retcher & Springer, LLP, Austin, for appellant. Sergei V. Kachura, Law Offices of Sergei V. Kflchura, P.C., Austin, for appellee. Before Justices KIDD, HIRYEAK and BOB PEMBERTON. Opinion
OPINION BOB PEMBERTON, Justice. In this case, w e consider the types of damages that Texans may recover for the loss of a pet dog. Appellee, Carol Schuster, sued appellant, Petco Animal Supplies, Inc. (Petco) after her soiniatute schnauger. Licorice, was mn over by traffic after escaping from a Petco groomer. Schuster took a default judgment, and the trial court awarded damages, including Schuster's replacement costs fox licorice; her out-of-pocket costs for training aadmicrocliip implantation; bee wages lost while searching for Licorice after the dog escaped; Schuster's niental anguish, emotional distress and counseling costs; 11 'intrinsic valne' loss of companionship"; exemplary damages; and attorneys fees. Petco-now brings a restricted appeal challenging the award of several
WattawNffitf 2 0 1 0 T h o m s o n Reuters. No claim to original U.S. Government Works.
4
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TAB 5 Order on Special Exceptions to Plaintiff's First Amended Original Petition
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.CAUSE NO, 2009-75521-1 KAIHRYN AND JEREMY MEPLEN PlaintifFs,
IN THE COUNTY COURT
AT LAW NO. 1
KEANEMENEFEE Defendant
ORDER ON CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION
ON THIS DAY came on to be heard Carla Strickland's Special Exceptions to Plaintiffs' First Amended Origmal Petition, and the parties appeared by their attorneys of record, and the Court, after having reviewed the Defendant's Special Exceptions to the Plaintiffs' First Amended Original Petition, and having heard the argument of counsel, finds the Special Exceptions to be good, and that the Plaintiffs have failed as a matter of law to state a claim for damages. It is therefore ORDERED that Kathryn and Jeremy Medlen amend the Plaintiffs' First Amended Original Petition to state a claim for damages recognized at law by the^tf^/day of 20 ^ If Plaintiffs fail to amend their petition by that date, this Court will
enter an Order of Dismissal of Kathryn and Jeremy Medleys cause of action against Carla Strickland without further proceedings before this Court. SIGNED this ^ day of Decembers 2010.
Judge Presiding
CAUSE NO. 2009*75521-1; Kafh/yn and Jtrmy Medlm V. Ksane, Menifee'. ORDER ON CARLA STRICKLAND'S Page 1 of \ SPECIAL EXCEPTIONS TO PLAINTIFFS* FIRST AMENDED ORIGINAL PETITION
TAB 6 Plaintiff's Second Amended Petition
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D.-31. 2010
9:17AM
I k 6238
P. 3
Cause No. 09-7552M
KATHRYK AND JEREMY MEDLEM
IN THE COtSNTY COURT AT LAW
v.
NUMBER ONE
KEANEMENEFEE
PLAINTIFF'S SECOND AMENDED' PETITION TO THE HONORABLE JUDGE OF SAID COURT: Kathryn and Jeremy Medlen, Plaintiffs, file this suit against Carta Strickland and show the following; Discovery Control Plan 1. Plaintiffs intend for discovery to be conducted under Level 3 pursuant to Rule 190.4 of the Texas Rules of Civil Procedure. Parties 2. The plaintiffs are residents of Tarrant County, Texas. The last three digits of Kathiyn Medlen's Social Security number we 154 and the last tfcree digits of Jeremy Medlen's Social Security Number are 609.
3. The defendant, Cai'la Strickland, is an individual residing in Tarrant County and has appeared and answered herein. Jurisdiction and Vetwe 4. This court has jurisdiction over this cause under Section 25.003 of the Texas Government Code "because this is a civil matter and the amount in controversy exceeds $500 but does not excced $100,000. Venue is proper in Tarrant Counly under Sections 15,002(1) because the events givingriseto the claim occutred in Tarrant County.
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Facts of the Case 5. On. of about June 2a 2009 Kathryn and Jeremy Mcdlen's dog, "Avery/5 escaped from their backyard. Avery was picked up by employees of the Animal Care and Control Division of the City of Fort Worth (hereinafter called "Animal Control"), Jeremy Medlen went to the animal shelter operated by Aflimal Control and discovered that Avery was in their custody. He was told that he could return on June 10, 2009 and pick up Avery. A "hold for owner" tag was placed on Avery's cage by an employee of Animal Control to notiiy other employees at Animal Control that Avery was not to be euthanized because his owaea: would beretuxxangto pick him up. Under ihe rules, policies and procedures of Animal Control no dog was to be euthanized that had a "hold for owner14 tag on its cage. Animal Control employees had no discretion as to whether they could euthanize a dog that had such a tag on its cage. They were prohibited from euthanizing any dog that had this tag on its cage.
6, On June 6i 2009 the defendant, an Animal Control employee, made a list of the animals that were to be euthanized the following day. She placed Avery on that list even though he had a "hold for ovmei'" tag on his cage. On June 7,2009 Avery was euthanized by Animal Control. On June 10, 2009 Jeremy Medlen and his two children went to the animal shelter to pick up Avery and learned, to their horror, that Avery was dead. The entire Medlen faroily was devastated by the loss of Avery, who was like a family member to them.
Negligence ofDefendants 7. The negligence of the defendant proximately caused the death of Avery, and the damages described below. Specifically, the defendant was negligent in:
a. Placing Avery on the list of animals to be euthanized when, there was a "hold for owner" tag on his cage; b. Ordering or approving the killing of Avery when she knew or should have known that
ozn
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Dec. 31. 2010 9:17AM
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No. 6238
P. 5
Avery's owners were coming to reclaim him; c. Failing to follow Annoal Control's mles, policies,'and procedures which prohibited Averyfrombeing Killed Under the circumstances.
1
No Immttirity
8, This lawsuit is not brought under the Texas Tort Claims Act and the defendant is ngj being sued in her official capacity. The defendant u sued peraon&Uy in her individual capacity. At all times material to this cause of action the defendant was pexfortning ministerial duties. She did not act in good faith in that noreasonableprudent animal control employee in the defendant's position could have believed that Avery should be euthanized or placed on the list of animals to be euthanized.
Damages 9. Avery had little or no market value and cannot be replaced. His intrinsic value was fer greater than any market value he may have had. Therefore, Kathiyn and Jeremy Median bring this action to recover damages for the intrinsic value of Avery..
Pmytr
10. Kathryn and Jeremy Medlen pray that the defendant be cited to appear and answer this lawsuit and that after a trial they recover a judgment against the defendant for actual damages within the jurisdictional limits of this Court, for costs of court, for prejudgment and post judgment interest, and for such other relief at law or in equity to which they may be justly entitled.
Respectfully submitted, TURNER & McKENZJE, PC
By:. RAN! State Bar Ned 20.
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Dec. 31 2(310 9: ISAM

i
h. 6 2 3 8
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3 800 Norwood Dr., Suite 100 Hurst, Texas 76054 TfelephonK 817-282-3868 Fax: 8174684563 Email: randv^tumermckenzicxom
ATTORNEY f OK PLAINTIFFS
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing insti-ument has been served upon the Attorney of Record of all parties to the above-entitled and numbered cause in accordence with TEX. R. CIV. P, 21a, on this ^ 6 day of T y W/I , 2010, by the following method: personal delivery y 7 telephonic document transfer (fax) certified mail courierreceipteddelivery
Via Facsimile: 817.33<,0199 Paul Boudlochc Mason. & Boudloche, LX.P 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 7613 6 Via Facsimile; 817,392.8359 Luis . Fierros James A Riddell Assistant City Attorneys 1000 Throckmorton Fort Worth, Texas 76102-6311
U-t*.
THOMAS W* MCKENZIE
<?P4?
TAB 7 Agreed Order of Dismissal
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c/C
(
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KATHRYN snd
JERSMY MEDLEN,
CAUSE NO. OMWai-l
pwnm,
v, KEANEMENEFEE, Defendant
S I
m THE COUNTY COURT
AT L A W NO. 1
TARRANT COUNTY, TEXAS .
AflRSEP ORDfeR OF DISMISSAL TO THE HONORABLE JUDGE OF SAID COURT: ON THIS DAY came on Pfafotfflk Kathryn and Jaramy Medlen, Defendant Ktean . Menftfw, and Defendant Carfs Strtckland, and f^presentiscl 1o ths Court that Pîntiffs Ktihiyn and Jeremy Median no lonfier wish to prosecute the above-Btyled and numbemd cause of action agelnsi Defendant Keane Menefbe. After revtewfng the pteadlngs and bearing the representations of PJalntlfft, the Court I# of the opinion that the requesttodismissteweH founded, and should be, and hereby fst granted. IT IS THEREFORE HERESY ORDERED that the revest of Ptalntfffe Kathryn and Jeremy Medlen, Defendant Kaene Menefee, and Defendant Caria Strfokfand Is
arented. and the cause against Keane Menefee te diemfajied, with prejudge to ihe w-filingofsarrie, IT fS HEREBY FURTHER ORDERED that ell costs of Court In this action are. taxed to the party incurring wma. This Order disposes only of the cause of action against Keene Menefee; all perftes understand and acknowledsa that Plaintiffs' cause of actio* against Carls SWckiandramalna,and is active until disposition of that cause of atftfan by the Court.'
ASRSSDCRQgR O F D i a ^ f i ^ j .
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SIGNEO this the $ / dav of Dwerribsr^soio,
DGE PRESIDING AGR^D:
Rffiqyt{JEj7umgr AttorilQf^KsflfnifSi Kathryn Jemmy Md]6ri
\
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Paul BoucJltsche Attorney for Dofendant Carta Strickland

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lui# R, Flarres Attorney for pefendsint Keane Menefss
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TAB 8 Carla Strickland's Special Exceptions to Plaintiff's Second Amended Petition
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DdPUOQE
CAUSE NO, 2009-75521-1 fCATHRYN AND JEREMY MEDLEN IN THE COUNTY COURT
Plaintiffs,
yi
AT LAW NO.? 1 vi
C TiS
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TARKANT COUNTY,-j^XAS ^ ' . 1:^ to.

:
CARLA STRICKLAND'S SPECIAL EXCEPTIONS T O PLAINTIFF'S SECOND AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Carla Strickland, one of the Defendants in the above entitled and numbered cause, and makes and files this, her Special Exceptions to the Plaintiffs Second Amended Petition and Request for Disclosure, and in support thereof would show unto the Court as follows:
t
Plaintiffs factual allegations as stated in Paragraphs 6 and 7 of the Plaintiffs Second Amended Petition is a suit in negligence for the loss of the plaintifFs pet dog "Avery." For plaintiff's claim for damages in Paragraph 9, plaintiff claims no market value for Avery, hut seeks damages for AVery's intrinsic value to the plaintiffs.
n.
Defendant Carla Strickland files this Special Exception to Paragraph 9 of the Plaintiff's Amended Petition, in which the plamtiff states her claim for damages. Plaintiff seeks recovery not for the market value of Aveiy, but rather "Kathryn and Jeremy Medlen bring this action to recover the damages for the intrinsic value of Avery."
CAUSE NO, 2009-75521-1; Kathyn and Jeremy Medten V, Keane Menefw. CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION
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Texas law does not allow the recoveiy of sentimental or intrinsic value for the loss of one's pet dog. Dogs are property, and damages for the loss of the dog would he either "a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog.". Heili^nann v. 81 Tex.
222} 16 S. W.31 (1891). A "special or pecuniary value to the owner" might be an economic value specific to that owner, such as a dog specifically trained to assist someone with a disability," Mireles v. Morman, 2010 WL 3059241 (Tex. App - Austin, 2010, memorandum opimon). As recently as 2004, the Austin Court of Appeals reaffirmed the Hsiligmann v. Rose decision when the plaintiff was denied damages for mental anguish, counseling cost, intrinsic value and loss of companionship. Petco Animal Supplies, Inc., v. Schuster, 144 S.W.Sd 54 (Tex. App. - Austin, 2004, no writ histoty) (see attached Exhibit A). In Petco, the court specifically noted "Heiligmann precludes the award of intrinsic value damages to Schuster, as she relies solely on sentimental considerations." Petco Animal Supplies, Inc., at 564.
m.
Defendant Carla Strickland previously filed Special Exceptions to PlaintifFs First Amended Original Petition, wherein plaintiff alleged damages as follows: "9. Kathiyn and Jeremy were devastated by the loss of Avery, who was like a family member to them. Avery had little or no market value. His sentimental or intrinsic value to Katbiyn and Jeremy Medlen was far greater than any market value he may have had. Therefore. Kathrvn and Jeremy Medlen bring this action to recover the damages for the sentimental or intrinsic value of Avery to Kathrvn and Jeremy Medlen.7' Plaintiffs' First Amended Original Petition. (Emphasis added.) (See attached. Exhibit B.)
In response to Defendant's Special Exceptions, the Court conducted a hearing and

CAUSE NO. 2009-75521-1; KtLthyn andJeru>y Medlen V. EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION CARLA STRICKLAND'S SPECIAL
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entered its order on December 8S 2010, ordering Plaintiffs to amend their petition "to state a claim for damages recognised by law." In response to that order, Plaintiff filed Plaintiffs' Second Amended Petition, which now alleges in Paragraph 9 as follows: "9. Avery had little or no market value and cannot be replaced. His intrinsic value was far greater than any market value he may have had. Xhcrafore. Katbrvn and Jeremy Medlen bring this action to recover damages for the intrinsic value of Averv " Plaintiffs' Second Amended Petition. (Emphasis added.) (See attached Exhibit C.)
Defendant contends that Plaintiffs* amended petition does not comply with the Court's order of December 8,2010, to state a claim for damages recognized by law. Other than dropping the terra 'senthnentaT, Plaintiffs' demand for damages remains the same. Therefore, Plaintiffs having load an opportunity to amend their petition, and having failed to state a claim for damages recognized by law, Defendant asks this Court to dismiss Plaintiffs' cause of action for failing to state a claim for damages, or for such other and further relief to which the Court believes that the Defendant may be entitled.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set these Special Exceptions down for a hearing, and upon hearing the Special Exceptions grant the same, and dismiss the plaintiffs cause of action, and for such other and further relief both legal and equitable to which this parly is entitled. ' Respectfully submitted,
Paul Boudloche SBN: 02694700 MAS OK & BOUDLOCHE, LLP 1200 Summit Avenue, Suite 700
CAUSE NO. 2009-7552M; Kathryn andj&r&my Medlen V. Xsane. Mtnefw, CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION Page 3
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. Fort Worth, Texas 76102 TEL 817/338-0639 FAX 817/336-0199 Attorney for Carla Strickland CERTIFICATE OF CONFERENCE I certify that I have conferred with the attorney for the plaintiff on the above and foregoing Special Exceptions on Januaiy 3,2011, and that we are unable to agree, and that this matter needs to be presented to the Court, Signed this 4* day of January, 2011
Paul Boudloche CERTIFICATE OF SERVICE I certify that a true and correct copy of the above and foregoing Special Exceptions has been faxed and mailed on this 4th day of January, 2011, to: Randall E. Turner Turner & McKenZie, PC 1800 Norwood Dr., Suite 100 Hurst, TX 76054 FAX: 817-268-1563 Attorney for Plaintiffs Mr. Luis Fieiros City Attorney's Office City of Fort Worth 1000 Throckmorton S t Fort Worth* TX 76102-6311 FAX: 817-392-8359 Attorney for Keane Menefee
rt-Atsf T""""
Pam Boudloche
CAUSE NO. 2009-75521-1; Kathryn and Jeremy Medlen K Xeaiw Menefee; CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION
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Peteo Animal Supplies, Inc. v. Sctn-star, 144 S.W.3d 554 (2004)
l44S.W.3d554 Court ofAppeals of Texas, Austin. HETCO ANIMAL SOPPUES, INC., Appeflant v Carol SCHUSTER, Appellee. No. 03-03-OQ354-CV. April 2 9 , 2 0 0 4 .
Synopsis BadcgnAmd: Dog-owner brought action against pet Stare to recover damages allegedly rocoired dog was lolled in (nSc after escij&i^ fimn pet groamer. The 200th Judicial District Couit,Travis County, Dadtae Byroe, J-, entered default judgmeot in favor of dog-owner and awarded damages. Pet store appealed.
Holdings: The Court of Appeals, Bab Pembcrtoa, J., M d that 1 dog-owner was not entitled to damages for meDtal anguish, absent pet store's ill-will, arimus or desire to harm her personally; 2 dog-oTOer was not entitled to recover cotmseling expenses; 3 dog-owner was not entitled to intrinsic value damages; 4 dog-oivner was not entitled to dajjjages for lost wages; and 5 dog-owner was not entitled to exemplary damages. Affinoed in p u t and reversed in part.
Attorneys and Law Finns

*557 Christian 1. Vos Wupperfeld, William W. Xroeger, m , Jotona R. lippman, lEUetcher & Springer, LLP, Austin, for
appsillaiiL
Sergei V. Kachnra, Law Offices of Sergei V. Eachma, P.C, Anstin, fbr ^pcQee.
Severe Jastices KDDD, PURYEAR and BOB PEMBERTON. Opiolon
OPINION BOB PEMBERTON, Justice. In this case, we consider the types of damages flut Texass may recover for the loss of a pet dog. 1 Appellee, Carol Schtutcr, sued appellflnt, Petco Animal Supplies, Inn (Petco) after her miniature achnanzer, licorice, was run over by traffic after escaping from a Petco groomer. Schnstej took a dcfaolt judgment, and the trial cowt awarded dsorvagesj iucludixig Schuster's replacement costs for licorice; her out-of-pocket costs for and microchip implantation; her wages lost while searching for Licorice after die dog escaped; Sdrug?si's meata] anguish, emotional distress and counseling costs;" 'intrinsic value' loss of eotopaidonsbip"; eêcopla^ damages; and attorneys fees. Petco now brings arestricted appeal challenging the award of several
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Peteo Animal Supplies, ln& v, Sci.^vter, 144 S.W^d 554 (2004)
of diese damage elements. Because we axe bousd to adhere to Texas's traditional restrictive view toward damages for the loss of a dog, we will affirm in part and reverse in part 1 We art thus not adctassing tte dxcatges recovcraWe fbffeejossof sudi animals as livKtock, cqotaes, or wild animals,
BACKGROUND On January 16,2003, Schuster brought her focxteen-motith-old juimatnie schn&tizcr, Licorice, to a. Petco store is Austin to b e groomed. As Scbnster w^s ftturaing to the store to pick up Liccricc, she saw the dog runniag away from the store through the surrounding Mgh'traffic area. Later, Schoster learned tiat Licorice had slipped her leash and ros. away from a Fetco employee who had taken the dog outside for a bathroom break. Schuster and Petco employees searched for Licorice for four days until, tragically, the dog was found dead, having been run over by traffic. Schuster sued Petco for breach of contract, gross negligence, aud conversion. Petco did not answer, and Schuster took a default judgment and then offered evidence to support arsage of unliquidated damages. Schuster testified that Licorice's *558 replacement value was $500.00, that she had incuncd $992.00 to send Licorice to training school and $52.40 for microchip implantation, 2 and that she had lost $857.68 in wages while missing work to search for LkoriCC.
Apparently implanted microchips si? used as identifiers, essentidly a high tech vercion of dog tags.
Schuster also testified that she had experienced a total of $645,000 in mental anguish while searching for Licorice and after leannng of the dog's death, as well as $160 in counseling costs. S d m t e r also asked the district court to award $230,000 in damages for "loss of compajiionship of Licorice.* She additionally requested $1 million in exemplary damagea, plus attorneys fees. The district court awarded Schuster the foUowing damages: $500.00 as the replacement value of Licorice; $892.00 as reimbursement costs of putting Licorice through training school; $52.40 as reimbursement for microchip implantation; $857,58 as lost wages for Schuster when she was searching for Licorice; $160.00 as counseling costs; $10,000 as compensation to Schuster for mental anguish and emotional distress; $10,000 as compensation for w 'intrinsic value"'loss of companionship"; $10,000 as exemplary damages; and $ 6,750 as attorney^ fees (with more allowed for any appeals taken). The district court thus awarded Schuster the full amount of damages she had requested except reduced amounts for mental anguish, loss of companionship, and exemplary dasaages.The court expressed skepticism that any damagesbeyond replacement value for Licorice wefe property recoverable. Nonetheless, it awarded $10,000 each for mental angoish, loss of companionship, * and exemplary damages. 3 The court viewed tbeae aujotmts w "nww appropriate and more in lino -with anything dwt might hold up."
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Petco Animal Suppltes, Inc. v. Sc.ster, 144 S.W-3d 554 (20Q4)
The judgment was signed on April 29,2003. Petco did not file ft motion for new trial bat filed & cotice of appeal on Jmxe 11,2003, over 40 days after the judgment was signed- Petco contends only that tfas-damage award is not authorized by l a w or supported by the evidence. Specifically, Petco urges: (1) Texas law does not support any award for mental anguish and icUted counseling, loss of companionship, w lost wages for the loss of a dog; (2) there was no evidence of conduct by Peteo to support imposition of exemplary damages; (3) the attorney's fee award, which was based upon forty-five hours of work b y Schuster's attorney at $150 per hour, was excessive; and (4) the district court erroneously awarded both breach of contract and tort damages for the same injmy, the loss of Licorice.
DISCUSSION St&ndard and scope of review Although Petco filed its notice of appeal after the ordmary 30-day deadline for perfecting appeal had expired, it acted within the six-moath period for "bringing a restricted appeal. Tex. Civ. Prac. & RenLCode Ann: 51.013 (West 1997); Tex.R.App- P. 25.1(c), 30. A direct attack on ajodgraent by restricted appeal must (1) be brought withm six months after the trial court signs the judgment; and, additionally, (2) be brought by a party to die suit; (3) who did not participate in die hearing that resulted in the judgment eompluaed of, timely file a postjudgmcnt motion, request for findings of fact and conclusions *559 of law, or a notice of appeal within the normal thirty-day period; and (4) the error complained of must be apparent from the face of the record, Tex.K-App. P, 30; Noman ComtitnicatioTis v. Texas Eastmn Co., 955 S.W.2d 269,270 (Texl997) (per curiam). Schuster does not dispute that Petco satisfied the first three conditions for bringing a restricted appeal. The fourth condition helps define our scope of review. t 2 3 iharestictedaiEeal, we are limited to c o r w i d e ^ the same aa that ia an ordaia^ appeal; that i5, we review ths entire esse- Neman Ccmmmteati&is, $55 S.'SV.2d at270; LP.D. v. ftC., 959 S.W.2d 728,730 (Tex^pp.-Anstin 1998, pet. denied). The ftce of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the itporter's record. bJoman CoTnmunications, 955 S.WJ2d at 270. Thus, "|l]t necessarily follows that review of die entire case includes review of legal and factual insufSciency claims." Id. We can thus consider Petco's challenges to die legal and factual sufficiency of the trial court's damage award in this proceedmg. This includes not only the amount of damages awarded, but whether Schuster has established &e required causal sexus between those damages and the event sued upon, the death of licorice. Morgan v. Compugraphie Corp., 675 S.W.2d 729, 731-32 (lex.1984); Transport Concepts v. Reeves, 748 S."W.2d 302,304 (Tex.App.-Dallas 1988, no pet). We can also consider the related, purely legal issue of whether the various elements of the damage award are recoverable under Texas law. See Fitz v, Totmgait, 419 S.W^d 708 (Tex.CivÂpp.-Austin 1967, writ f t t sj-e,); c/ City ofTyltrV- iiftfiJ, 962 S.W.2d 489 (Tex,1997) (afEnning summary judgment and holding that Texas law does not perrait recovery of mental anguish damage; arising f r o m loss of property). Because the judgment itemized the damage elements die district court awarded, we can consider each element separately. See, e.g., Dawson v, Briggs, 107 S.W.3d 739,749 (Tex-App.-Fort Worth 2003, no pet). 4 4 ScfouterurgesihatFetcofaaawaivedltEappealbyfaiKagto 324(b), which provides that "{a} point in a motion fornew trial is a praxquisite to thefollowingcomplaints on appeal a complaint on which evidence must be beard such as... failure to set aside a judgmfint by default." Tex& Civ. Proa 3240)). But Petco does not attempt to set aside the defaultjudgment or raise other grounds that would gequire evidence; instead, it challenges only the legal validity of the daxoages awarded and the sufficiency of the evjdenee supporting thcot These matters, as explained above, can be dfiteimined from the face of the existing record. Moreover, if, B$ Schuster suggests, Rule 324(b) means that a modem for new trial is required as a prerequisite for all appeals from default judgments, it would preclude aQ restricted appeals. One of die leqcrirenjeots for bringing a restricted appeal ja {Jut the party has notfileda postjudgmeut motion in the trial court RxJELApp, P. 30. We reject such a broad reading of Rtde 324(b).
4 S 6 In deciding a legal sufficiency ehollenge, "we most view th, ervidence in a light that tends to .vnppart tbe disputed finding and disregard evidence and inferences to the contrary," Wal-Mart Stores, Inc. v. Cenckota, 121 S.W.3d 735, 739 (Tex.2003) (citing Bradfbrd v. Vento, 48 S.W.3d 749, 754 Crex.2001)). A legal sufficiency or "no evidence" point wiH be
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Petco Animal Supplies, Inc. v. Sci^ster, 144 S.W.ad 554 (2004)
sustained when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by mles of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vita! fact is no more than ' a i w r e scintilla; or (d) the evidetice conclusively *560 .eatablishia the opposite of the vital fact Merrell Dew Pharms., Inc. v. Havner, 953 S-WJ2d 7Q6,711 (TEC.1996); Robert W, Calvert, "iVo Evidence " and "Insufficient Evidencg " Points of Error, 38 Tex. L-Rev. 361,36263 (1960). More than a scmtilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclnsiotis." liavner, 953 S.W^d 706,711 (quoting Bwrcughs Wtllcome Co. v. Crye, 907 S.W.2d 497,499 (Tex.1995); Transportation Ins. Co. v. Moriel, 879 S.W^d 10,25 (Tex4994)). If Ihe evidence id so weak as to do so more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, lid,, 896 $.W,2d 179,182 (Tex.1995). 7 When reviewing a jury verdict to detennine the factual sufficiency of die evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175,176 (Tex.1986), We will not substimte our judgment for that of the trier of fact merely because we reach a different conclusion. Id. Damages for loss of a dog Petco asserts that the district court could not, as a matter of law, award Schuster damages for mental anguish, counseling costs, 11 'intrinsic valne' loss of companionship," and lost wages. We agree. Analysis of damage issues recoverable for the loss of a dog in Texas begins with Heiligm&ot v. Rose, 81 Tex. 222,16 S.W. 931 (1891), a tort action adsing from the poisoning deaths of several dogs. The jury, fmdmg that the defendant poisoned the dogs intentionally and maliciously, awarded both actual and exemplary damages. Id. The defendant challenged the snfSciency of the evidence of damages. Id. In addressing this argument, the Texas Supreme Court articulated legal principles govern jag damages forthe death of adog: The authorities well settle that dogs are property, and that an owner has his action and remedy against & trespasser for the damages resulting from injuries ioflicted upon them. Some auihorittUes hold that dogs have no market value. This may be relatively true, but it is H O C a rule that will govern in all cases. It may be difScolt, in the majority of cases, to ascertain the market vain? of a dog, hut such a result may, in some cases, be accomplished. The spedal charge asked by appellant, and given by the couxi, substantially presents the true rule in detexizunisg ihe value of dogs.3 It maybe either a market value, if the dog has any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. 5 The special chngerafcrencedby die supicipc cgmt provided, in relevant pwt: la orderft*the plaintiffs to recover, yoo mustfindfiomthe twtimony that the dfeodut poisoned the dogs, end that they were thes property of plaintiffs; that the dogs were of some pecuniaiy vdne.-îtbef that they had some market value at which they would sdJ, or that services or me of the dogs were of some pecanisry value. tfeiligmmn v. Rose, 81 Tex. 222,16 S.W. 931 (1B91-).
Id. at 932. Evaluating the evidence, the court noted that the dogs had been "of a fine breed, and weU*traiaed," that the owners had taken "great pains" to raise them, and that one of the dogs had even bees trained to identify, through distingtdshing barks, whether persons who approached were men, women or children. Id. The court concluded thai while "[t]here is no *561 evidence in this ease that the dogs had a market value... the evidence is ample showing the usefolness and services of the dogs, and that they -were of special value to the owner." Id. 8 Though decided a few years before the Texas courts of appeals were created, HeiUgmcnn remains the law today, and it stands for several key principles that govern our resolution of the damage issues m this case, first, it classifies dogs as personal proptny for damage ptuposes, not as persons, extensions of their owners, or any other legal entity whose loss would ordinarily give rise to personal injury damages. Texas courts have continued to classify dogs as property for damage purposes. Zeid v. Pearce, 953 S.W^Zd 368 (Tex.App.-El ?aso 1997, no writ); RuBcfciir v, Jfesnei, 886 S.W.2d 368,370 (TexApp.-Houston [1st
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Petco Animal Supplies, Inc. v. S&.^ter, 144 3,W.3d 564 (2004)
DisL] 1994, writ denied); see also Arrington v. Anington, til3 S.W^d 5 6 5 , 5 6 9 (Tex.CivApp.-Fort Worth 1981, no writ) (refusing to appoint managiiig conservator of pet dog in divorce casa, observing that "[a] dog, for all its admirable and unique: ' qualities, te-not ahnmaatieiug and is aottreated in the law assucL-A dog is personal propertyown^ship of "which is recognized under the law."). W e do not understand Schuster to b e ghallcngiflg this traditionsl classification. 6 6 Nor does Amicus Cotifte Animal Legal Defense Fund. WHte recognizing Ihe status of as piopoty, it urges that diis -
daasiScation should not preclude the award aFtntrjnsie value damages r9fictwg the value of anim&k as companions. But ftnofie? Amicus Curiae, Animal Legal Reports Sarvices, urges thi? Court to dassify comparioo ammsls as "sentient" property, a status that recQgzrizcs the aairoals' own feelings and l o t i o n s . 9 10 Second, Heiligmann identifies only two elements that can be awarded under the " t r u e rule" of damages f o r loss of a
dog: (1) tnarket value,, if any, and (2) "some special or pecuniary valae to the owner, that m a y be iscertained by reference t o the usefulness and services of the dog*" Third, Heiligmann makes clear that the ''special o r pecnniaiy value" of a dog to i t s owner refers solely to economic value derived from the dog's nsefolneas and services, not v a l u e attributed to companionship or other sentimental considerations. With these key principles in mind, we tarn to Petco's cfcaUeages to Schuster's mental anguish, counseling costs, " 'intrinsic value' loss of companionship" and lost wages damages. ' Mental anguish 11 Petco main tains that Heiligmann forecloses Schuster's recovery of mental angnisli damages. Though Heiligmann did n o t squarely address whether mental anguish damages are available for the loss of a dog, our sister court m 1 Paso has held "this longstanding Texas rule" bsujed recovery of damages for mental anguish, as well as pain a n d suffering, for the loss of a d o g ia a vetfiriaary negligence case. Zeid, 953 S.W.2d at 3 6 9 ^ 7 The Zeid coort also obsflrved that the T&XAS Suprams Court had reflised to permit bystaa do: recovery fur mcnlsl anguish in rofidical malpractice cases involving humans. It rejected any thought of peamittifl? recovery of mental anguish where mcdical malprwdcc - Barms a dog. Zeid v. Ptorte, 953 S.W.2d 368,370 (TcxApp.-ElFzso 1997, no wit) (citing Edinbur^ Hasp. -4WA. v. Trevino, 941 S.W.2d76.81Cre*.i9P7)).
In response, Schuster points out thai at least one Texas court awarded mental anguish damages in a ease involving die fatal shooting of a dog. Ciry of Cctdand v. White, 366 S.W.2d 12,14-17 (Tex.Civ.App.-Eaatlaud 1963, writ r e f d n.r.t). But t h e White court never mentions Heiligmann and it is unclear whether the defendants ever disputed whether mental anguish *562 damages were properly reccveiable for the death of a dog. Even if White might otherwise support Schuster, the case is easily distinguishable. White involved the intentional, premeditated shooting of a dog. / i at 14-15. 8 B y contrast, Schuster asserts at most gross negligence. The Texas Sapreme Court, addreasing property dam age eases genetaHy, held that mental anguish damages are s o t recoverable for negligent property d a a a g e as a matter of Uw. Ltkes, 962 S.W.2d at 497. The supreme court explicitly reserved the question of whether mental anguish arising from property damage might be available w h e r e a degree of culpability higher than simple negligence is found. Id. But t h e only Texas court to have subsequently addressed t h e question concluded that grossly negligent property damage can support a claim for mental anguish only where there is evidence of some itt-witt, animus, or desire to h a n n t h e plaintiff personally. Sminele Pipeline Co. v. Brood Leaf Partners, Inc., 9 7 9 S.W.2d 730,753-57 (Tcx-App.Houston [14th Dist.] 1998, no p e t ) . There is no such evidence here. 8 H a s Court once cited Garland for the propoaitson that "ddSwdant who intetfioaally and wrongfully shot plaintiffs dog liable for unintended injuries to plaintiS ia fawn ofiaenta] pain and soffcrfng and physical damage to his house caused by the shotgun blast" BenmghS v. Western Auio Supply Co* 670 S.W.2d 373,378 (TcxApp.-Austm 1984, writtef d n x t ) .
The only proof that-Schuster offered to establish her mental anguish damages was her testianony thait she had been "terror . ridden" as she seaiched for Licorice because die dog "had never been out, never been l o o s e " and was likely scared; "it w a s
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cold, freeziag weather" and the dog had jast had a .short haircut; and Schuster feared that Licorice would be lolled on the b u s y roads. Schuster then quantified h e r anguish as ranging betweeu $1,000 and $20,000 per day. Nowhere in her testimony, or even in her pleadings, did Schuster claim any ill-will, Rminn* or desire by Fetco to ha,roj,ber person ally. ,
12 Schuster also relies on a line of cases awardi&g 8latal anguish damages when arising torn t h e breach ofdndes incident to certain "special relationships" iaduding "a very limited nnmber of contracts d o l i n g wilh intensely emotional noncommercial subjects" such as preparing a corpse for burial or delivering news of a family emergency. Likes, 962 S.W.2d at 49$ (citing Par E Foley < Co. v. Wyaff, 442 S.W.2d 904 (Tex.Civ.App.-Houstoa [14th Djst,] 1969, writ r e f d n j . e . ) , and Sluan v. Western UntimTel Co., 66 Tex. 5 8 0 , 1 8 5 ^ . 3 5 1 , 3 5 3 (1885)). It is unclear whether Schuster views these cases as supporting mental anguish damages under her tort claims or breach of contract claim, or both. Regardless, Schuster does not attempt to explain how or why dog grooming falls within the narrow class of "intensely emotional noncoimncrcial subjects" that conld give rise to m&ntal anguish damages. To the coutraiy, we believe Schuster's claim is governed by the general rule that mental anguish damages are not available for brcach of a contract, Srcwart Title Guar. Co. v. Aielto, $41 S . W ^ d 68, 72 (Tex.1997), and b y the traditional Hinitatioiis oiHeitigmwt.9 9 la addition, with, xegaid to Schusto's conversion clam, we note thai Texas courts have tefosed to award menial angizish damages for conversion. Wintte Chevy-Oldt-Ptmthse v. Condon, 830S.W;M74O,74 (TcxApp.-Corpus Christi 1993, writ dism'd) (menial anguish not recovemble for anrversion but may be ceaadered in awarding exemplary damages); First Natl Bank ofMissouii City v. Giltelmm, 788 S.WJ2d 165,169 (Tex.AjFp.-HotJSton [14th Dist] 1990, writdemod) (same); bvtste Cty afTyltrv. Ltites, 962 S.W^d 48$. 498 (Tex. 1997) (citing Gittelrnm for the proposition that mental angdsh is not a compensable itsult of injuries to property interests, but characteriring it as involving "conversion without tealice").
*569 Because there is no support in Texas law for awarding mental anguish damages for the loss of a dog, we reverse the trial court's award of mental anguish damages. Heiligmam, 16 S.W, at 932; Ztid, 953 S.W.2d at 369. Counseling expenses 33 Because Schuster cannot recover for mental anguish or emotional harm arising from Licorice's death, we also reverse h e r award of counseling expenses. Alternatively, we agree with Fetco that there is s o evidence that those expenses were reasonable and necessary The sole evidence supporting the counseling expenses award was Schuster's own testimony. Her attorney asked h e n "[hjave youbeen through counseling since the death of licorice?" She responded that she had andhad spent $ l 6 0 i f l e e p a y m e n t t for t h e counseling Sessions. She provided no testimony regardingxtasonableness or necessity; therefore, this testimony'is n o evidence supporting Schuster's award for counseling costs. See Jactecn v. Gutierrez 77 S.W.3d 898,902-03 (Tex.App.-Houston [14th Dist] 2002, no p e t ) (in restricted appeal, holding that failure of defaultjudgment plaintiff to present evidence of reasonableness and necessity of medical expenses required reversal of medical expenses award).
" 'Xnirintfc value' loss ofc.ompanumship"

14 The trial court also awarded aa element of damages it termed " 'intrinsic value' loss of companionship." The sole proof Schuster offered in support of these damages related to her subjective feelings for licorice. At the default judgment hearing, Schuster testified that she hadpurchasedLicorice "as a friend and companion" aftermost o f h e r children hadlefthome. Licorice, Schuster recounted, was with me all the tune that I was horns. W e always joked that her name should have been Velcro instead of Licorice because she was right by m y leg all the time. W e went places together. If I went somewhere where she could go, she went With zne.... She was a companion to m e and I miss her, Schuster calculated $280,000 in 'loss of companionship" damages based on what she asserted was the average life expectancy of a miniature schnanser, 14 years, times the amount of annual salary increase; $20,000, she claimed would be required to induce her to accept a job requiring her to part with licorice.
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Although it }>erifeiaps rtserablas her claimed mental angmsh oc even the '*los$ of companiotiship" that is a component of lost human consortium, Schuster conceives her "loss of companionsWp" damages to be a fonn, of "intriasic value" property damages. "Intrinsic value" damages are conceptually distinct from personal injury damages. See Zeid, 953 S.W.2d at 369-70 (difitrnguishing Zfiid's mental anguish and pain and suffering claim from special o r m t a m i c value damages claim, in Bueekner ), Texas law permits the recovery of "mtonsic value" as the measura of properly damages in certain, instances. Porras v. Craig, $75S.W.2d503,506 (Tex.1984) intrinsic value of felled trees might b e recoverable); jee also Ives v. Webb, 543 S.W.2d907, 910 (Tcx.Civ.App.-Corpus Christi 1976, no writ) (pennittmg award of intrinsic value damages in pure breach of contract suit). 2 5 Broadly speaiing, intrizuic value if an inherent value not established by *564 market forces; it is apeisonal or sentimental value. Star Houston, Inc. v. Kundak, 843 S.W.2d 294,298 (Tex.App.-Honston [14th DistiJ 1992, no writ). F o r example, t h e intrinsic value of trees is said to be comprised of both an ornamental (aesthetic) value and a ntilicy (shade) value. CummerGrakw Co. v, MaJdcx, 155 Tex. 284,285 S.W^d 932,936 (1956).
Schuster relics on Porras v. Craig for the proposition that she can recover the "intrinsic value" of l i c o r i c e as a beloved companion. But, again, Heiligjnann and its progeny preclude such a recovery. ffeiligTnann's "true rule" p enmtted xecov ery of a dog's "special or pecuniary value" ascertained solely "Jy reference to the usefulness and services of the dog" HeUigmarm, 1 6 S.'W. at 932 (emphasis added). Subsequently, in Young's Xus Lines v, Redman, which involved the death of a seeing eye dog, fee court distinguished between what it termed a dog's "intrinsic or actoal value" {i.e., pecuniary value) which might b e recoverable, and the mere "peculiar or sentimental value placed upon fee dog b y [the owner], or what he considered the dog worth to h i m , " which the court deemed irrelevant and inadmissible. 43 S.W,2d 266,267-68 (Tex.Civ.App.-Beamnont 1931, no writ). See also Zeid, 953 S . W ^ d at 369 (citing Heili&mann for proposition that recovery for death of a dog "is file dog's market value, if a n y , or some special or pecuniary value to the owner that may be ascertained by reference to the dog's useM&ess or services."). Meiligmann precludes the award of intrinsic value damages to Schuster, as she relies solely on sentftaentnl considerations. The Animal Legal Defense Fund presents an amicus brief supporting Schuster by mging that such a limited concept of t h e intrinsic value of dogs is archaic and fail* to take account of the m o d e m view of dogs as beloved M e a d s and companions, a view reflected in Justice Eric AndelTs concurrence i s Butckner, 386 S.W.2d at 373 (Andell, 7., co&cuning). One commentator cited in the brief went as far as to suggest Americans today view their pets as more alrin to family members than mereproperty; In the United States, there is nearly one pet for every two Americans. Further, approximately 124 million dogs and cats live in American households. In one study, forty-five percent of dog owners reported that they take their pets on vacation. Another recent survey revealed that more than half of companion animal owners would prefer a dog or cat to a human if stranded on s desert island; Another poll revealed that fifty percent of pet owners would, b e 'very Hkdy* to risk their lives to save their pets, and another thirty-three percent indicated they would be 'somewhat likely" to p a t their own lives in danger. Th&se statistics indicate that companion animal owners view theirpets as family memberc, rather than personal properly. William C. Root, Han's Best Friend: Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 Vil. L.Rev, 423,423 (2002) (footnotes omitted), frdeed, within our jurisdiction, there are myriad examples that Texans today view dogs m o r e as companions friends, or even something altin to family than as an economic tool or benefit. There are at least thirty dog yes cue organizations in t h e Austin area, 1 0 Austin's *S6S "Mighty Texas Dog W a t t " annually draws thousands of participants, 31 and even Petco's counsel hare publicly adenowledged "the special bond between a pet and its owner" and suggested that "it is t h e rare person who does not get a little teaiy-eyed when Old Teller dies.' .12 10 11 12 Stttoww.austinrtscK&co7n/uidex.ktmI (last visited Apr. 8,2004). &zyw.strrtcedQg3,c>rgM&vs/dogtvaty20Q4Jitm (last vidteii Apx- 8,2004). Willian W. Krwgsr & Christian Von "Wuppcrfieid, The Truth About Cats and Dogs, Texas Lawyer CFeb. 23,2003), at 27.
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16 Aa an mtenneiJiate appellate court, we aie not frea to mold Texas law as we see fit but must instead follow the prtcsdents of the Texas Supretne Court unless end until the high court overrules them or the Texas Legislature, supersedes them'by statute. 1 3 U r a , we follow Heiligmann and reject Schuster's ^ t e m p t t o expand "intrmsic value" damages to embrace the subjective v a l u e that a dog's owner places on its compauiojuhip. 13 We note that die iejpslatare h&s previously enacted statutes prtscribdjig criminal penzldss for creelty to aniinals, Tex. Penal Code Aw. 42.05 (West2003). IS 19 20 Additionally, even if Parras or other more recent supreme court decisions could be construed as broadening .
17
the availability' of intrinsic value damages in animal cases, Schuster did not meet the conditions for recovering those damages here- Intrinsic value damages are recoverable only where the properly is shown to have neither market value nor replacement value. IriternarioTial'Great Northern J?.' Co. v. Casey' 4$ S.W.2d 669,670 Ofex. Comm.App, 1932, holding approved); see atse Porras, 675 S."W.2d at 506 (intrinsic value damages unavailable unless loss of trees were shown not to have reduced m a r k e t value of land); Cfty of Austin v. Cannizzo, 153 Tex. 324,267 S.W.2d 808, 812-13 (1954) (in condemnation case, landowner could not recover intrinsic value absent fmdmg that property had no market value). 14 Schuster did not satisfy that condition. She offered no proof at all regarding Licorice's market value, or wbethcsr Licorice had any such value, and she testified t h a i the dog's replacement value was $ 5 0 0 . ^ 14 fadmon also held that the plaintiff could sot recover iatrinsic value damages nnless he first showed die dog had no market value. Jtedmm, 43 S.W.2d at 267-68. . In Wtflhms v, JDodson, 976 S.W^d 861,863 (Te*.App,-Anstm 1998, no pet), tMs Court penninwl the recovery of what it termed "internricvalue" damages for the conversion of a bracelet withont first requiring proofreg&rding market valm ox replacement value. The Court was applying a measure of damages applicable to marketable chattels held for the use and comfort of their owner) fd. in this conoya; "inainsic value" damages refer to tfr; loss of use of a e chattel to the owner, cjtcloding fancifyl or sefltaaental eonsidftraticw. Id. at 864; Crisp v. Security Natl Ira. Co., 369 S.W.2d 326,328*29 (Tea. 1963) ('The meflsure of damages that should be applied... is the acfcuA worth or values of die articles to the owner far use in the condition they were in at the time of the fire excluding any fanciful or sendmcQtal considerations."). Schuster does not soggefit that she coold recover her broader notion Of "intraisic -value" damages under this thcoiy.
15
Accordingly, w e reverse the trial court's damage award for " 'intrinsic value' loss of companionship." Lost wages Heiligmam would also appear to preclude Schuster's lost wages recovery. Moreover, Schuster cites no authority allowing tier to recover lost wages for properly damage unrelated to her job. Likes infonns os that "[w}hile few persons suffering serious bodily injury would f e d made whole by the m e t e xecoveiy of medical *566 expenses and lost wages, many whose property has been damaged or destroyed will be entirely satisfied by recovery of its value." 962 S.W.2d at 496-97 (emphasis added). W e coaclude that 'lost wages" axe not properly recoverable under Schuster's tort theories. See ffeiligmarm, 16 S.W. a t 932; Zeid, 953 S.W.2d 36&iuecfoier, 886 S.W.2d 368. Lost wages in this case also have too attenuated a' connection to Petco's conduct to be recoverable under h e r breach of contract theory. The supreme court has recently discussed consequential damages in a breach of contract context Consequential damages are those damages thsit "result naturally, but not necessarily, f rom the defendants wrongful acts.' T h e y are not recoverable unless the parties contemplated at the time they made the contract that such damages would be a probable result of die breach. Thus, to b e recoverable, consequential damages must be foreseeable and directly traceable to the wrongful act and result from i t Stuart v. Bayless, 964 S.W.2d 920, 921 (Tex.1998) (intemal citations omitted). We find Schuster's lost wages damages t o o remote to be fairly compensable. W e reverse Schuster's award for lost wages. .
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Exemplary damages Pefco asserts fo its third tesw that the district t o u r t improperly awarded S d m s t e r eseraplary damages. As to h e r tort d a i m , Petco urges there is no evidence by which any grossly negligent c o n d o c t b y iadivlduaJ, employees c a n h e attributed to Petco. Ai to Schnstcr's b r e a c h of contract claim, P e t c o argues that exemplary d a m a g e s a r e n o t recoverable for a breach of c o n t r a c t W e agree. Again, we apply a legal snffldency s t a n d a r d to t h e r e c o r d t o determine whether exemplary damages were p r o p e r . See Wal-Mart Storei? Ine^ 121 S.W.3d a t 739. I n order for exemplary damages to have been p r o p e r in this case, Schuster wonld h a r e h a d t o have ehown b y clear a n d convincing evidence that t h e h a r m that she suffered was camed b y f r a u d or malice on t h e p a r t of P e t c o . Tex. C f r . Prac. St Kerd-Corie Ann. 41.003 CWest 1997). F n r t h e r , punitive or exemplary damages m a y b e recovered against a corporatioa only if the grossly negligent act is t h e very act of the corporation itself. See Banaurij Oaks, Inc. v. Edwards, 958 S . W J d 397,391 (Tex.1597). I f the act Is t h a t of a mere servant ot employee, t h e n it m n s t h a v e been previously authorized or subsequently m n s t be approved b y t h e corporation. See id.; Mobil Oil Corp. v. EUender, 968 S.W.2d 917,921 (Tex.1998) (citing Transportation Ins. Co. v. Morie\ 879 S . W ^ d 1 0 , 2 3 (Tex.1994)) ("A c o r p o r a t i o n i s liable for exemplary damages if it authorizes or ratifies an agent's gross negligence o r if it is grossly negligent i n hiri&g a n y onflt agent."}. 1 * 16 Coiporations may also be liable for exemplary ttasages when & "vicepnncipal" of corporation commits a grossly negligent act. Hie supreme court usss the tezm "vice principd" to describe the land of employee that may "act for the corporation itself': . ... the tem 'vicepriacijaj' eQibta&jes][ ] fonr classcs of eetporate agents Cotporate officers; (b) those who have authority to employ, c^cect, mdcQscharge scrvaats oftbe master; (c) those en|a|ed in the perfocuaaace of nondelegable or absolute duties oftiie master: and (d) those to whom a master has confided the maragemfcrtof the whole or a department or division of Ms business-.Fart Wctih Elevators Co. v. Russell, 123 Tex, 128,70 $.*W.2d 3?7,406 (1934), avmuUd on other gmmdx by Wright v. GiffbrdHiBdCv, 725 S.W.2d 712, 724 (TfitiPSTJ. Sshustti dow net iigai at the Petco emplDjees who lost Ctf searched for her dog wcce its vice principals. 22 Schuster asserts that Petco approved the action of the negligent employes when it had its employees search
*567 21
for Schuster's p e t We cannot agree that Petco's attempt to ameliorate the consequences of its employee's negligence is an act approving or ratifying the negligent act itself. The mere fact that Petco employees searched for Schuster's dog does not suggest that Petco vouched for the employee's act of losing the dog in the first place. Farther, there is n o evidence in the record t h a t the employees were searefciog for Schuster's dog under the directzoa of Petco; the employees m a y have been s e a r d n a g f o r Licorice on thedr own accord. Schuster also offered internet printouts fro m various organizations accusing Petco of generally treating the animals it sells inhumanely and that its employees are poorly trained in animal maintenance. I b i s evidence is legally insufficient to show, however, that the Petco employees involved i n this case were inadequately trained or that any such deficiency caused Licorice's escape. 2 3 As to the breach of contract claim, exemplary damages are not recoverable for a breach of contract, even one breached maliciously, as a matter of law. See Jun Walter Homes, Inc. v. Reed, 711 S.WJ2d 617,618 (Tex.1986). "We reverse Schuster's award of exemplary damages. Attorney's fees 2 4 25 Petco assarts in its fourth issues that the evidence does not support the district court's award of attorney's fees for fortyfive hours of legal work prior to taJdng die dfefatJt judgment in this case. Schuster cpnld recover anomey's f e e s pursuant to her breach of contract clsim. See Tex. G v . Prac. & Rem.Code Ann 38.001 (West 1997). However, the reasonableness of t h e attonsay's fees awarded is a question of fact and most b e supported .by the evidence. See Grace v. Duke, 5 4 S.W.3d 338, 3 4 4 (Tex App.-Austin 2001, no p e t ) . Clear, direct, anduneontroverted evidence of attorney's fees is taken as true as a matter of l a w . See id. Tlus supreme couithas stated eight factois that a factfinder should consider when detennining the teajjonableness of a f e e :
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(1) the time and labor required, die novelty and difficulty of the qaestions involved, and the skill required to p e r f o n a the legal service properly; (2) the likelihoodthat the occeptaace of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) die time limitations imposed b y the client or b y the circuastances; (6) the nature and length of the pcofeasional relationship 'With A t client; (7) She experience, reputation, and ability of the lawyer or lawyers perfemning the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before th& legal services have been rendered. Arthur Andersen 4 G?. v. Perry Equip. Coip., $45 S.W.2d 812, 818 (Tex.1997). Not all of the factors must b e considered i n every case. These are general guidelines that the supreme cowt has stated should be taken into account when detennining the reasonableness of attorney's fees. 26 I h e record in the present case shows that Schuster's attorney charged S I 50 per hour for his legal work and that he worked f o r 45 legal hours on Schuster's ease, Petco asserts that forty-five hours is unreasonable for work prior to a default *568 judgment in acase concerning the deaih of a dog. W e dis agree that the fees were unreasonable in this case. Theiecord shows thatSehuster'a attorney drafted pleadings, prepared motions, spoke with Petco representatives and his client on several occasions, prepared f o r the default judgment hearing, and performed research regarfmg the availability of damages for the death of a dog. Although w e view Texas law as fairly straightforward on tins issue, we cote that this subject has b e e s the focus of scholarly analysis end case law development in other jurisdictions and that the Texas Supreme Court has recognised die complexity of Texas law regarding mental anguish damages for the loss of property. See Likes, 962 S.W.2d 489. We overrule Petco's fourth issue. Double recovery Petco asserts that the district court erred b y allowing Schuster to recover damages on both her breach of contract and tort claims. Our disposition of the preceding issues obviates this point Under her breach of contract theory, Schuster m a y recover each of the elements of damages thai icmain available: replacement value, reimbursement of expenses f o r training and microchip implantation, attorney's fees, and court costs. 1 7 See Tatieton State University v. K.A, Spa/la Contractor, Jru:,, 695 S.W.2d 3 6 2 (TexApp.-Waco 1985, w i i t r e f d n . r . e . ) ; T e x CSv. Erac. & Rem.Code Ann. 38.001. 17 Petco did utf appeal Schuster's award for replacement value or reimhunement for training and microchip-implantation
1
CONCLUSION We reverse the district court's award for mental anguish damages, counseling costs," 'intrinsic value' loss of companionship," lost wages and exemplary damages. W e otherwise affirm the district court's judgment
End t>f Ihttuinent
d 2010 ThttiKMl RDuftrStNo ckuin to origutsl U.5, OdvennOttlt Wotfcs.
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mftRMrfcmS'TY Cause No. 09-75521-1 M DEE 30 PfiISi 3 5
ir it jrp.
KATHRYN AKD JEREMY MEDLEN
IN THE COUNTY COTOT AT LAW 8Y_ NUMBER ONE
y.

'
KEAOTMENEEEE
TARRANT COUNTY, T E X A S
PLAJNTTFF'S FIRST AME3SDEP PETITION AND REQUEST FOR DISa,QSURE TO Tm HONORABLE JUDGE OF SAD) COURT: Kattuyn and Jeremy Medlen, Plaintiffs, file this suit against Keane Menefes and Carla Strickland and show the followiog: Discovery Control Plan 1. PlaintiSs intend for discovery to be conducted under Level.S. pursuant to Rule. 190.4 of the Texas Roles of Civil Procedure. Parties 2. The plaintiffs are residents of Tarrant County, Texas. The last three digits of Kathryn Median's Social Security number are 154 and the last three digits of Jeremy Medlen's Social Security Number are 609, 3, The defendant, Keane Menefee, is an individual residing in Tarrant County, Texas and has appeared and answered herein
)
4. The defendant, Carla Strickland, is an individual residing in Tarrant County and may be served with process at 4900 Martin St 3 Fort Worth, Texas 76119Jniisdjctioji and Venue 5. This court has jurisdictioa over this cause under Section 25.003 of the Texas Govemcaent
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Code "because tils is a civil matter and the amount in controversy exceeds $500 but does not exceed $100,000. Venue is proper in Tarrant County under Sectioiis 15,002(1) because the events giving rise to the claim occurred in Tarrant County. Facts of the Case 6. On or about June 2, 2009 Kathryn and Jeremy Medlen's dog, "Avery", escaped from their backyard. Avery was picked up by one or more employees of the Animal Care and Control Division of the City of Fort Worth. On that same day Jeremy Medlen went to the animal shelter operated by the Animal Care and Control Division and discovered that Aveiy was in their custody. He was told that he would have to pay $95 to take possession of Avery, He only had $80 in his possession at the time and was told he could return any time during the next five days to pay the money and get Avery. The following day Kathrya Medlen and her son went to the animal shelter with enough money to get Avery. However, she was told that Avery would not be released until a veterinarian implanted a microchip into Avery and gave him a rabies vaccination. She was told that the veterinarian had not arrived yet Later that day Jeremy Medlen telephoned, the animal shelter and was told that the veterinarian was not coming in that day and would not be back until the following Monday. He was told to return on Monday when he could take possession of Avery. Hie following Monday Jeremy Medlen and his two children went to the animal shelter to pick up Avery and learned, to their honorj that Avery was dead. The defendant had either killed him or ordered that he be killed.
Negligence of Defendants The negligence of the defendants proximately caused the death of Kathryn and Jeremy Medlen's dog, Avery, and the damages described below. Specifically, the defendant were negligent in: a. Killing Avery when they knew ox should have known that Avery had owners who load reclaimed Mmb. Ordering the TdH.ing of Avery when they knew or should have known that Avery's owners were coining to reclaim him.
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o. Killing Avery o violation of the rules, policies, and procedures, of the City of Fort Worth which prohibited him from killing Aveiy under the circumstances.
No Imimraity
8. This lawsuit is not brought under the Texas Tort Claims Act and the defendants axe not being sued in iheir ofScial capacities. The defendants are sued personally in their individual capacities. At all toes material to this cause of action the defendants "were perfonmhg ministerial duies. They did not act in good faith in that no reasonable prudent animal control employee in the defendants' position could have believed that Aveiy should be killed.
Damages 9. Katfaryn and Jeremy Medlen were devastated by the loss of Avery, tvho was like a family member to them. Avery had little or no market value. His sentimental or intrinsic value to ICathryn and Jeremy Medlen was far greater than any market value he may have had. Therefore, Kathryn and Jeremy Medlen brmg this action to recover the damages for the sentimental ox intrinsic value of Avery to. Kathiyn and Jeremy Medlen.
Prayer
10. Kaihryn and Jeremy Medlen pray that the defendants be cited to appear and answer this lawsuit and that after a trial they recover a judgment against the defendants, jointly and severally, for actual damages within the jurisdictional limits of this Court, for costs of coiitt, fox prejudgment and post judgment interest, and for such other relief at law or in equity to which they may be justly entitleii
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Request for Disclosure 11. Pursuant to Texas Rule of Civil Procedure 194 the defendant, Carla. Strickland is requested to disclose, -within M y (50) days after service of this request, the information or material described in Rule 194.2.
Respectfully subnrftted,
TURNER & MCKENZIE, PC
By:,
RAND.
'i
tAiv
}R
State B; 1800 Norwood Dr., Suite 100 ' Hurst, Texas 76054 Telephone: 817-232-3868 Fax: 817-268-1563
Email: randY@tumenrntf&n?i(rr-nm
ATTORNEY iFOR PLAINTIFFS
Vkl
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CERTIFICATE OF SERVICE Ifesrebycertify that a true and correct copy of ihe foregoing iiistniment has been served upon the Attomey of Record of all parties "to the aboveêntitled and mmabored caîse in aoooidance with TEX. R. CTV. P. 21a, on this fOq ^y of VNa M w i k n ' A ,2003 by thefollowingmethods personal delivery t/tSeph-onic documenl: transfer (fax) certified mail courier receipted delivery
Via Facsimile: 817392.8359 Luis JFieaxos Office of the City Attomey 1000 Throcktnoiton Street Fort Worthj Texas 76102
RArarawTi
THOMAS
0S0
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OFFICER/AUTHORIZED PERSON RETURN

Rece' xx at 20 :
T
. on the
day of i County of .at
, 20 M., by deKvering to
at_ (State) on the!.
Mm and executed the same : day of
a true and correct copy of this citation, together with
m attached copy of the PLAINTIFF'S FIRST AMENDED PETITION AND REQUEST FOR DISCLOSURE, -with t h e late and service marked thereon.
"otal Service Fees:
.Sheriff/ Constable
(Authorized Person)
. County, Texas By 'UBSCRIBED AND SWORN TO BEFORE ME on the. ertify which -witness my hand and official seal. day of 20. Deputy
(If Applicable)
"
to
Notary Public in and for :ounty,.. j State. My Corrmtssioa expires
ORIGINAL CITATION CAUSE NO: 2009-075521-1

KATHRYN AND JEREMY MEDLEN VS.
STRICKLA1TD ,CAJRL h 4900 MARTIN ST PORT WORTH, TX 76119
SUED THIS December 30, 2009 /: ROBBIE AKBOR jxmty Court at Law No. One )0 W. Weatherford St. Room 250 rt Worth, Tarrant Co,, Texas 76196-0401
Computer N o . : 2357322 P a p e r No.: 0 0 2 Party N o . : 0 0 4 A g e n c y : ATY Agency N a m e ; ATTORNEY SERVER
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CAUSE NO: 2 0 0 9 - 0 7 5 5 2 M
ORIGINAL CITATION
FIRST JlMTttroRP PETITION AITD REQUEST FOR DISCLOSURE
**
THE STATE OF TEXAS

TO; STRICKLAND.CARLA 4900 MARTIN ST FORT WORTH, I X 76119 Defendant in the hersmafter styled and numbered cause. You are comjnanded to appear by filing a written answer to the PLAINTIFF'S FIRST AMENDED PETTTON at or before 10:00 o'clock a~m. of the Monday next after the expiration of 20 days from the date of scrvice.of tbis citation in the County Court a t Law No. One of Tarrant County, Texas, at the Courthouse located at 100 WEST WEATOERFORD ST., Fort Worth, Texas 76196, The FIRST AMENDED PETTTON was filed on 09/08/09, and i numiierfid 2009-075521-1. The case style is:
KATHRYN AND JEREMY MEDLEN VS. KEANE MENEFEE
A true copy of the above-described FIRST AMENDED PETITON accompames and is'made a part of this citation.
F tiffs attorney is: TURNER,RANDALL Bar No:2032B310 (817]282-3B68
1B00 NORWOOD 76054 SUITE 100
HURST, TX
***** NOTICE TO DEFENDANT ***** YOU HAVE BEEN SUED- YOU MAY EMPLOY AN ATTORNEY. IF YOU OR YOUR ATTORNEY DO NOT FILE A WRITTEN ANSWER WITH THE CLERK WHO ISSUED THIS CITATION BY 10:00 A.M. ON THE MONDAY NEXT FOLLOWING THE EXPIRATION OF TWENTY DAYS AFTER YOU WERE SERVED THl'S CITATION AND PETITION , A DEFAULT JUDGMENT MAY BE TAKEN AGAINST YOU.
(
Issued under my h a n d and seal of this court on December 30, 2009 at Fort Worth, Texas, by ROBBIE ARBOR, Clerk of the County Courts a t Law court.
SUZANNE HENDERSON, COUNTY" CLERK Tsaiant CouniyjTexas County Court dfBaw No, One. 100 W. Wâth^zTord St., Rooib 250/*)
FortWoTîy^CXs,976196-04(61 / ' j .
:S/^ SSf
>rz
9:
1
BY: ROBBIE ARBOR, Deputy
ks g-
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CansNo. OP-7S521-1
KATHRYK AM) JEREMY MEDLEN

v,
IN THE COUNTY COURT AT LAW NUMBER ONE TARRANT COUNTY, TEXAS
KEANE MENS3EE
PLAINTIFFS SECOND AMENDED PETITION TO THE HONORABLE JUDGE OF SAID COURT: Katbrya and Jeremy Mcdlenj Plaintiffs,filethis suit Against Carla Stricklajd and show the following: Discovery Control Plan 1, PMnliffs intend for discovery to be conducted mder Level 3 pursuant to M e 190,4 of the Texas Rules of Civil Procedm Parties 2. The plaintiffs are jesidents of Tanaiit Coimty, Texas, The last liuee digits of Kathiyn Median's Social Secwity numboy ate 154 and the last three diffiia of Jeremy Median's Social Security Number are 609. 3, The defendant, Carla Sttickland, I5 an indi-vidnal residing in Tarrant County and has . appeared and answered herein. Jurisdiction and Venue 4. This comt has jurisdiction ovet this cause ttoder Sec-tion 25.003 of the Texas Government Code "because tins is a oivil matter and the amount in controversy cxceeds $500 but does not exceed $100,000. Venue is proper in Tarrant County under Sections 15,002(1) because the events givingriseto the claim occutred in Tarmt County,
EXHIBtr
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Dec. 31. 2 0 1 0
h\m
No, 6 2 3 8
P. 4
Facts of the Cue 5. Oa oi' about June 2, 2009 Kathryn and Jeremy Medlen's dog, uAverysM escaped from tficir backyard. Avery -was picked up by employees of the Ardmal Care and Control Division of the City of Fort Worth (hereinaifter called "Animal Control"), Jeremy Medleo went to the animal shelter operated by Animal Control and discovered that Avery was in their custody. He was told that he could return on June 10, 2009 and pick up Avay. A "hold for owner" tag was placed on Avery's cage by an employee of Animal Control to notity other employees at Animal Coiitrol that Avery was not to be euthanized because his owner would be returning to jacK him up. Under the rules, policies and procedures of Animal Control no dog was to be euthanked that had a "hold for owner11 tag on its cage. Animal Contcol employees had no discretion as to Whether they could euthauize a dog that had such a tag on its cage. They were prohibitedfromeuthanizing any dog that had this tag on its cage. 6. On June 6,2009 the defendaatj an Ammal Control employee, made a list of the animals th# were to be euthanized the following day. She placed Avery on that list even though he had a "hold fot owner" tag on his cage, On June 7, 2009 Aveiy was euthanized by Animal Control, Oa June 10, 2009 Jeremy Medleh and his two children went to the animal shelter to pick up Avery and learned, to their liorror, tbat Avery was dead. The entire Medien family was devastated by the loss of Avery, who was like a family member to them. Negligence of Defendants 7. The negligence of the defendant proximately caused the death of Avery, and 'ftie damages described below. Specifically, the defendant was negligent in: a. Placing Avery on the list of animals to be euthaniaed when there was a f<hoId for owner" tag on his cage; bp Ordering or approving the killmg of Avery when she knew or should have known that
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Avery's ovmers were.coming to leclgdm hiw, c. Failing to follow Animal ControTs rules, policdcs," and procedures wHoIi prohibited Averyfrombeing killed under His circumstances. No Immunity 8. This lawsuit is flt brought under the Texas Tort Claims Act and the defehdant is ngt being sued in her official capacity. The defendant is sued personally in her individual capacity. At all times material to this cause of action ihe defendant was perfomung ministerial duties. She did not act in good faith in that no reasonable prudent auimal control employee in the defendant's position could have believed to Avery should be euthanized or placed on the list of animals to be euthanized. Damages 9. Avery had little or no market value and cannot be replaced. His intcinaic value was far greater than any market value he may have had. Tbsrofore, Kathryn and Jeremy Median bring this action to recover damages for the mtrinsic value of Avery..
Prayer
10. KathiTn and Jeremy Medlen pi'ay that the defendant be cited to appeal' and answet this lawsuit and that after a trial ihey recovcr a judgment against the defendant for actual damages withan the jurisdictional limits of this Comtj for costs of court, for prejudgment and post judgment interest, and for such other relief at law or in equity to "which they may be justly entitled. Respectfully submitted,
TURNER A McKmzm, PC
By;
U-
RANI State Bar No). 20i
oxr
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1800 Norwood Dr., Suite 100 Htorst, Texas 76054 Telephone: 817-282-3868 Fax: 817-2(584563 Email: i-andv/Stmnermckenzie.coni ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Hie foregoing instrumenl has been served upon the Attorney of Record of all parties to the above-entitled and mjtnJbered oause in accordance -with TEX. R. CIV. P. 21a, on this ^ ft day of 7 ^ / ^ AM IQ QA 2010, by the following method: personal delivery telephonic document transfer (fax) certified mail courier receipted delivery Via Facsimilei S17.336.0199 Paul Boudloche Mason & Bondlochej L X J 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 75116 Via Facsimile: 817,392,8359 Luis E. Fienos James A. Riddell Assistant City Attorneys 1000 Thfockmorton Fort Worth, Texas 76102-6311
IM.
THOMAS W, MCKENZIE
TAB 9 Order on Carla Strickland's Special Exceptions to Plaintiff's Second Amended Petition
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. CAUSE NO. 2009-75521-1 ' ; ' JCATHRYN AND IBIffilvirYMEDLEN . Plaintifis, v. CARIA STRICKLAND' Defendant TARRANT COUNTY, TEXAS

IN THE COUNTY COURT'
' AT LAW NO. 1
ORDER ON CAKLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFFS' SECOND AMENDED P E T m O N
ONTOESDAY came on to be heard Carta Strickland's Special Exceptions to Plaintiffs' Second Amended Petition, and the parties appeared by their attorneys of record, and the Court, after having reviewed the Defendant's Special Exceptions to the Plaintiffs' Second Amended Original Petition, and having heard the argument of counsdj finds the Special Exceptions to be . good, and that the Plaintiffs have failed a t e haying- an oppoitunity to replead to state a claim for damages. It is therefore ORDERED that Kathiyn and Jeremy Medlen claims and causes of action alleged against Carla Striddand be dismissed with prejudice to the refiling.o'f same. All costs of court to be assessed against the plaintiff. It is further ORDERED that all relief not expressly granted herein is hereby deeded. This , judgment filially disposes of all parties' claims, and is appealable,., . SIGNED this ^ ^ d a v of February. 2011
Judge PresidingCAUSE NO.' 2009-75521'1; Kaihryn and Jeremy M&dlen KKeaneMentfee, ORDER ON CARLA STRICKLAM)'S SPECIAL EXCErciCtiNS TO PLAINTIFFS' SECONP AMENDED PEHTIQN Pagelofl
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FILED IN THE SUPREME COURT OF TEXAS 12 June 20 BLAKE. A.

COUNSEL FOR PETITIONER

Petitioners Brief on the Merits

Respondents: Counsel for Respondents:

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Trial Court Disposition:

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

TEX. CIV. PRAC. & REM. CODE 101.106 (West 2011).

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

See Brown, 369 S.W.2d at 304-305.

Petitioners Brief on the Merits

Petitioners Brief on the Merits

TEX. R. APP. P. 24.2(a)(3).

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Browns sentimental value exception.21

First, unlike heirlooms and other valuable

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

Petitioners Brief on the Merits

i KEY N U M B E R SYSTEM >

193 S.W.3d 605, 615 (Tex.App.-Fort Worth

NATIONAL CITY BANK v. TEXAS CAPITAL BANK

TAB 2 Plaintiff's First Amended Petition

KATHRYN AND JEREMY MEDLEN

TARRANT COUNTY, TEXAS

MASON & BOUDLOCHE

MASON & BOUDLOCHE

Request for Disclosure

Respectfully submitted, TURNER & McKENZIE, PC

ATTORNEY FOR PLAINTIFFS