FILED IN THE SUPREME COURT OF TEXAS 12 February 2 P2:40 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

AMENDED PETITION FOR REVIEW

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 KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280

COUNSEL FOR PETITIONER

INDENTITY 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 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 and Appellate Counsel

Respondents: Counsel for Respondents:

Kathryn and Jeremy Medlen Randall E. Turner rturner@galyen.com BAILEY & GALYEN 1901 W. Airport Freeway Bedford, Texas 76021 Telephone: 817-359-7059 Telecopier: 817-764-6336

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TABLE OF CONTENTS Page INDENTITY OF PARTIES AND COUNSEL ...................................................................ii INDEX OF AUTHORITIES .............................................................................................. iv STATEMENT OF THE CASE .......................................................................................... ix STATEMENT OF JURISDICTION ................................................................................... x ISSUES PRESENTED ......................................................................................................xii INTRODUCTION ............................................................................................................... 1 STATEMENT OF FACTS.................................................................................................. 2 SUMMARY OF THE ARGUMENT .................................................................................. 4 ARGUMENT AND AUTHORITIES ................................................................................. 5 I. HEILIGMANN AND SUBSEQUENT DECISIONS OF THIS COURT PRECLUDE THE RECOVERY OF INTRINSIC OR SENTIMENTAL VALUE PROPERTY DAMAGES FOR THE WRONGFUL DEATH OF A PET. ....................... 5 A. The True Rule of Heiligmann Limits Recovery for the Negligent Destruction of a Dog to Economic Value Damages. ................................................................................ 5 More Recent Decisions of this Court Do Not Broaden the Availability of Intrinsic or Sentimental Value Property Damages to Animal Cases. ................................................ 8

B.

II.

NO COMPELLING SOCIAL POLICY FAVORS RECOGNITION OF A DOG OWNERS RIGHT TO RECOVER LOSS OF COMPANIONSHIP DAMAGES AND PUBLIC POLICY FORBIDS IT. ..................................................... 13

PRAYER ........................................................................................................................... 15 CERTIFICATE OF SERVICE.......................................................................................... 16

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INDEX OF AUTHORITIES Cases Page

Ammon v. Welty, 113 S.W.3d 185 (Ky. Ct. App. 2003) .................................................................................. 2 Bales v. Judelsohn, No. 011-268-05 (S.C. Ct. App. 2005) ................................................................................. 2 Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963) ....................................................................................... 4, 8, 9 Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App.Houston [1st] 1994, writ denied) .................................... x, 7 Buff v. Diamond Pet Foods, 2009 WL 926945 (W.D.N.C. Mar. 30, 2009) ..................................................................... 2 Burgess v. Shampooch, 131 P.3d 1248 (Kan. Ct. App. 2006) ................................................................................... 2 Carbasho v. Musulin, 618 S.E.2d 368 (W. Va. 2005) ............................................................................................ 2 Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985) ............................................................................................. 14 City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954) .............................................................................. 10 City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) ............................................................................... 4, 8, 11, 12 Corso v. Crawford Dog and Cat Hosp., 97 Misc.2d 530 (N.Y. Civ. Ct. 1979) .................................................................................. 2 Crisp v. Security Natl Ins. Co., 369 S.W.2d 326 (Tex. 1963) ............................................................................................. 10 Daughen v. Fox, 539 A.2d 858 (Pa. Super. Ct. 1988) .................................................................................... 2

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INDEX OF AUTHORITIES (cont.) Cases Page

DeJoy v. Niagara Mohawk Power Corp., 786 N.Y.S.2d 873 (N.Y. App. Div. 2004)........................................................................... 2 El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (Tex. 1999) ................................................................................................... 5 Fackler v. Genetzky, 595 N.W.2d 884 (Neb. 1999) .............................................................................................. 2 Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) ............................................................................................. 14 Franka v. Velasquez, 322 S.W.3d 367 (Tex. 2011) ............................................................................................... 4 Gill v. Brown, 695 P.2d 1276 (Idaho Ct. App. 1985) ......................................................... 2, 4, 8, 9, 10, 12 Goodby v. Vetpharm, Inc., 974 A.2d 1269 (Vt. 2009).................................................................................................... 2 Gulf States Util. Co. v. Low, 79 S.W.3d 561 (Tex. 2002) ........................................................................................... x, 10 Hamilton v. Fant, 422 S.W.2d 495 (Tex. Civ. App. Austin 1967, no writ) ................................................ 10 Harabes v. The Barkery, 791 A.2d 1142 (N.J. Super. Ct. App. Div. 2001) ................................................................ 2 Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891) ........................................................ x, 1, 4, 5, 6, 7, 8 Holbrook v. Stansell, 562 S.E.2d 731 (Ga. Ct. App. 2002) ................................................................................... 2 International-Great N.R.R. v. Casey, 46 S.W.2d 669 (Tex. Com. App. 1932, holding approved) .............................................. 10 Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084 (Ill. App. Ct. 1987) .................................................................................. 2

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INDEX OF AUTHORITIES (cont.) Cases Page

Kaufman v. Langhofer, 222 P.3d 272 (Ariz. Ct. App. 2009) .................................................................................... 2 Kennedy v. Byas, 867 So. 2d 1195 (Fla. Dist. Ct. App. 2004)......................................................................... 2 Kling v. U.S. Fire Ins. Co., 146 So. 2d 635 (La. Ct. App. 1962) .................................................................................... 2 Koester v. VCA Animal Hosp., 624 N.W.2d 209 (Mich. Ct. App. 2000).............................................................................. 2 Kondaurov v. Kerdasha, 629 S.E.2d 181 (Va. 2006) .................................................................................................. 2 Krasnecky v. Meffen, 777 N.E.2d 1286 (Mass. App. Ct. 2002) ............................................................................. 2 Lachenman v. Stice, 838 N.E.2d 451 (In. Ct. App. 2006) .................................................................................... 2 Lockett v. Hill, 51 P.3d 5 (Or. Ct. App. 2002) ............................................................................................. 2 Lucas v. Morrison, 286 S.W.2d 190 (Tex. Civ. App. San Antonio 1956, no writ) ....................................... 10 McMahon v. Craig, 97 Cal. Rptr. 3d 355 (Cal. Ct. App. 2009)........................................................................... 2 Medlen v. Strickland, 2011 WL 5247375 (Tex. App.Fort Worth, No. 02-11-00105-CV, Nov. 3, 2011) (Gabriel, J., joined by Walker, J., and Meier, J.)............................................ ix, 3, 4, 11, 12 Miloszar v. Gonzalez, 619 S.W.2d 283 (Tex. Civ. App. Corpus Christi, 1981, no writ)................................... 10 Mireles v. Mormon, 2010 WL 3059241 (Tex. App.Austin, No. 03-09-00451-CV, Aug. 6, 2010) ............. x, 7 Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001) .................................................................................................. 2
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INDEX OF AUTHORITIES (cont.) Cases Page

Moran Corp. v. Murray, 381 S.W.2d 324 (Tex. Civ. App. Texarkana 1964, no writ) .......................................... 10 Myers v. City of Hartford, 853 A.2d 621 (Conn. App. Ct. 2004) .................................................................................. 2 Naples v. Miller, 2009 WL 1163504 (Del. Super. Ct. Apr. 30, 2009), affd, 992 A.2d 1237 (Del. 2010) .................................................................................................................................... 2 Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996).............................................................................................. 2 Pacher v. Invisible Fence of Dayton, 798 N.E.2d 1121 (Ohio Ct. App. 2003) .............................................................................. 2 Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.Austin 2004, no pet.)............................................. x, 6, 7, 12 Porras v. Craig, 675 S.W.2d 503 (Tex. 1984) ................................................................................. 4, 8, 9, 10 Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001) ........................................................................................ 2, 15 Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990) ....................................................................................... 13, 14 Reed Tool Co. v. Copelin, 310 S.W.2d 736 (Tex. 1980) ............................................................................................. 14 Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003) ....................................................................................... 13, 14 Rowbotham v. Maher, 658 A.2d 912 (R.I. 1995)..................................................................................................... 2 Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983) ............................................................................................. 14 Scheele v. Dustin, 998 A.2d 697 (Vt. 2010)...................................................................................................... 2
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INDEX OF AUTHORITIES (cont.) Cases Page

Sherman v. Kissinger, 195 P.3d 539 (Wash. 2008) ................................................................................................. 2 Smith v. Univ. Animal Clinic, Inc., 30 So.3d 1154 (La. Ct. App. 2010) ..................................................................................... 2 Soucek v. Banham, 503 N.W.2d 153 (Minn. Ct. App. 1993) ............................................................................. 2 Thomson v. Lied Animal Shelter, 2009 WL 3303733 (D. Nev. Oct. 14, 2009)........................................................................ 2 Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978) ....................................................................................... 13, 14 Wilcox v. Butts Drug Stores, Inc., 35 P.2d 978 (N.M. 1934)..................................................................................................... 2 Wright v. Edison, 619 S.W.2d 797 (1981)........................................................................................................ 2 Youngs Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex. App.Beaumont 1931, no writ) .................................................. x, 7 Zeid v. Pearce, 953 S.W.2d 368 (Tex. App.El Paso 1997, no pet.) ............................................... x, 7, 12 Statutes Tex. Govt Code 22.001(a)(2) .......................................................................................... x Tex. Govt Code 22.001(a)(6) .......................................................................................... x Tex. Civ. Prac. & Rem. Code 101.106(f)................................................................... xii, 4 Other Authorities BLACKS LAW DICTIONARY (9th ed. 2009)....................................................................... 10

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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 intangible 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, 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 [CR at 4], and ordered plaintiffs to replead a claim for damages recognized at law. [CR at 25]. The Medlens filed an amended petition alleging a claim for intrinsic value damages. [CR at 28]. Strickland specially excepted again, and the trial court dismissed the Medlens lawsuit with prejudice. [CR at 60]. 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, 2011 WL 5247375 (Tex. App.Fort Worth, No. 02-1100105-CV, Nov. 3, 2011) (Gabriel, J., joined by Walker, J., and Meier, J.). The court of appeals held that because dogs are personal property, dog owners may be awarded damages for the loss of companionship of their dog in the form of intrinsic or sentimental value property damages. Id. at *5. 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). First, the court of appeals holding that a plaintiff may recover intangible 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, 81 Tex. 222, 16 S.W. 931 (Tex. 1891). The court of appeals opinion also conflicts with this Courts decision in Gulf States Util. Co. v. Low, 79 S.W.3d 561 (Tex. 2002), in which the Court held that intrinsic value type damages exclude sentimental considerations. In addition to conflicts with this Courts decisions, the court of appeals opinion conflicts with the decisions of five sister courts that have followed the precedent of Heiligmann and held damages for negligent destruction of a dog are limited to the dogs market or pecuniary value. See Mireles v. Mormon, 2010 WL 3059241 (Tex. App. Austin, No. 03-09-00451-CV, Aug. 6, 2010); 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 pet.); Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App. Houston [1st] 1994, writ denied); Youngs Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex. App.Beaumont 1931, no writ). Moreover, the issue presented by this petition is important to the jurisprudence and public policy of the state.
Amended Petition for Review

The court of appeals decision creates a new and

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independent cause of action loss of companionship for the wrongful death of a pet. This sweeping change in animal law gives pet owners the potential for a greater damages recovery for the loss of their pets than is available for the loss of a relative or close human friend. Although dogs are beloved companions, they should not be placed into this intimate familial category as a matter of public policy. To do so would allow damage claims with no sensible or just 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 the plaintiffs loss of pet companionship, it should defer to the Texas Legislature to create a remedy for it.

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ISSUES PRESENTED 1. Is a plaintiff entitled to recover damages for loss of companionship in the form of intrinsic or sentimental value damages for the wrongful death of a dog? 2. Did the court of appeals err in holding that the plaintiffs are entitled to recover intrinsic or sentimental value damages for the negligent destruction of their dog? OTHER ISSUES (Not Briefed) 1. Did governmental or official immunity bar the court of appeals from exercising its jurisdiction to decide the merits of plaintiffs appeal under Section 101.106(f) of the Texas Civil Practice & Remedies Code, when the defendant was a government employee acting within the general scope of her employment at the time of the incident in question? 2. Did the court of appeals err in addressing the issue of whether the plaintiffs are entitled to recover companionship or sentimental value damages when the plaintiffs only alleged a claim for intrinsic value damages?

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INTRODUCTION Over 120 years ago, this Court held 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. Until the court of appeals decision in this case, no Texas court had refused to follow Heiligmann and allow recovery of non-economic damages for the negligent destruction of a dog based solely on the subjective value that the dogs owner places on companionship or the owners sentiment. Rather than follow the wisdom of Heiligmann, however, the court of appeals has molded Texas law as it sees fit and created a new loss of companionship cause of action for the wrongful death of a pet dog exposing negligent defendants to the risk of extraordinary and potentially limitless damage claims. 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 a majority of the courts in the nation. For sound policy reasons, courts in thirty-five other states have refused to recognize a damage claim for negligent loss of a pet based an owners emotional

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attachment to a pet.1 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. Whether such a potentially costly expansion of tort law is within the best interest of Texans is a matter that should be decided by this Court, or the states legislature, not by an intermediate appellate court. STATEMENT OF FACTS On or about June 2, 2009, Kathryn and Jeremy Medlens dog, Avery, escaped from their backyard and was picked up by animal control. [CR at 27]. 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

See Mitchell v. Heinrichs, 27 P.3d 309, 314 (Alaska 2001); Kaufman v. Langhofer, 222 P.3d 272 (Ariz. Ct. App. 2009); McMahon v. Craig, 97 Cal. Rptr. 3d 355 (Cal. Ct. App. 2009); Myers v. City of Hartford, 853 A.2d 621 (Conn. App. Ct. 2004); Naples v. Miller, 2009 WL 1163504, at *3 (Del. Super. Ct. Apr. 30, 2009), affd, 992 A.2d 1237 (Del. 2010); Kennedy v. Byas, 867 So. 2d 1195, 1198 (Fla. Dist. Ct. App. 2004); Holbrook v. Stansell, 562 S.E.2d 731, 733 (Ga. Ct. App. 2002); Gill v. Brown, 695 P.2d 1276, 1278 (Idaho Ct. App. 1985); Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084 (Ill. App. Ct. 1987); Lachenman v. Stice, 838 N.E.2d 451, 461 (In. Ct. App. 2006); Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996); Burgess v. Shampooch, 131 P.3d 1248 (Kan. Ct. App. 2006); Ammon v. Welty, 113 S.W.3d 185 (Ky. Ct. App. 2003); Kling v. U.S. Fire Ins. Co., 146 So. 2d 635 (La. Ct. App. 1962); Krasnecky v. Meffen, 777 N.E.2d 1286, 1287-90 (Mass. App. Ct. 2002); Koester v. VCA Animal Hosp., 624 N.W.2d 209 (Mich. Ct. App. 2000); Soucek v. Banham, 503 N.W.2d 153 (Minn. Ct. App. 1993); Wright v. Edison, 619 S.W.2d 797 (1981); Fackler v. Genetzky, 595 N.W.2d 884 (Neb. 1999); Thomson v. Lied Animal Shelter, 2009 WL 3303733, at *7 (D. Nev. Oct. 14, 2009); Harabes v. The Barkery, 791 A.2d 1142 (N.J. Super. Ct. App. Div. 2001); Wilcox v. Butts Drug Stores, Inc., 35 P.2d 978 (N.M. 1934); DeJoy v. Niagara Mohawk Power Corp., 786 N.Y.S.2d 873 (N.Y. App. Div. 2004); Buff v. Diamond Pet Foods, 2009 WL 926945 (W.D.N.C. Mar. 30, 2009); Pacher v. Invisible Fence of Dayton, 798 N.E.2d 1121, 1125-26 (Ohio Ct. App. 2003); Lockett v. Hill, 51 P.3d 5, 7-8 (Or. Ct. App. 2002); Daughen v. Fox, 539 A.2d 858, 864-65 (Pa. Super. Ct. 1988); Rowbotham v. Maher, 658 A.2d 912 (R.I. 1995); Bales v. Judelsohn, No. 011-268-05 (S.C. Ct. App. 2005); Scheele v. Dustin, 998 A.2d 697 (Vt. 2010); Goodby v. Vetpharm, Inc., 974 A.2d 1269 (Vt. 2009); Kondaurov v. Kerdasha, 629 S.E.2d 181 (Va. 2006); Sherman v. Kissinger, 195 P.3d 539 (Wash. 2008); Carbasho v. Musulin, 618 S.E.2d 368 (W. Va. 2005); Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001). But see Smith v. Univ. Animal Clinic, Inc., 30 So.3d 1154 (La. Ct. App. 2010); Corso v. Crawford Dog and Cat Hosp., 97 Misc.2d 530 (N.Y. Civ. Ct. 1979).
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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 put Avery on the list, and he was put down the next day. [Id.]. When the Medlens returned for their dog a few days later, they learned of his unfortunate fate. The Medlens sued Strickland for negligence and pleaded damages for Averys sentimental or intrinsic value. [CR at 4]. 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 at 12-13]. The trial judge granted the special exception and ordered the Medlens to amend their pleadings to state a claim for damages recognized at law. [CR at 25]. The Medlens filed an amended petition seeking damages for Averys intrinsic value.2 [CR at 28]. Strickland specially excepted again on the same grounds, and the trial judge dismissed the lawsuit. [CR at 32-56, 60]. The Medlens appealed. Although the Medlens amended petition does not allege a claim for sentimental value damages, the panel phrased the issue on appeal as whether a party can recover intrinsic or sentimental damages for the loss of a dog. Medlen, 2011 WL 5247375 at *1 (emphasis supplied). Relying on three decisions of this Court holding that damages for certain personal property may be based on either intrinsic or sentimental value where the

For reasons not reflected in the record, the Medlens abandoned their claim for sentimental value damages in their amended petition.
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property has no market value and is irreplaceable,3 the court of appeals reasoned that because a dog is personal property the same property damages rules should apply. Id. at *5. The court observed that, while Heiligmann was decided at a time when Texas law did not allow recovery for the sentimental value of personal property, Heiligmann does not rule out companionship or sentimental value damages for negligent destruction of a dog based on the attachment that an owner feels for his pet. Id. at *4. The court concluded: 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 value of mans best friend should be protected. Id.4 SUMMARY OF THE ARGUMENT In Heiligmann, this Court prudently limited the recoverable damages for negligent destruction of a dog under common law to pecuniary loss. Rejecting the wisdom and precedent of this universally-accepted rule, however, the court of appeals created a new cause of action that allows dog owners to recover for the loss of the companionship of their dogs based solely on subjective, sentimental considerations. This novel theory of recovery gives plaintiffs a greater remedy for the negligent death of a pet animal than

See City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex. 1997) (discussing special rules for sentimental damages adopted in Brown); Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984) (adopting intrinsic value rule); Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 304-05 (Tex. 1963) (announcing rules for recovery of sentimental damages).

The court of appeals reversed and remanded the case to the trial court without addressing Stricklands cross-point asserting that the Medlens action is barred by immunity under Section 101.106(f) of the Texas Civil Practice & Remedies Code. See Franka v. Velasquez, 322 S.W.3d 367, 379-85 (Tex. 2011).
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they have for the death of a human family member without any social justification, and creates a new right to damages that will have a snowball effect leading to the recognition of actions for emotion-based damages to remedy the death of any living creature with which a human may bond. Such a result is contrary to the public policy of the state. ARGUMENT AND AUTHORITIES5 I. HEILIGMANN AND SUBSEQUENT DECISIONS OF THIS COURT PRECLUDE THE RECOVERY OF INTRINSIC OR SENTIMENTAL VALUE PROPERTY DAMAGES FOR THE WRONGFUL DEATH OF A PET. A. The True Rule of Heiligmann Limits Recovery for the Negligent Destruction of a Dog to Economic Value Damages.

In Heiligmann, this 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 defendant complained that the evidence was

insufficient to support the jurys damages finding awarding the owner $25 for each dog. Heiligmann 16 S.W. at 932. In the course of analyzing the evidence supporting the verdict, the Court held that the defendants requested charge followed the true rule in determining the value of dogs: 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. Based on ample evidence showing the usefulness and

In issues that turn on a pure question of law, this Court applies a de novo standard of review. El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999).
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services of the dogs, the Court found the evidence was sufficient to support the jurys damages findings. Id. In an effort to reconcile its novel holding with Heiligmann, the court of appeals parsed Heiligmanns true rule in a way that skewed its fundamental meaning. The court of appeals analysis takes the term special value out of context and interprets it without reference to the economic considerations that the Heiligmann court used to define the term. Id. at *4. This parsing of the Courts opinion gives special value a much broader meaning than the Court could have reasonably contemplated. When

Heiligmann is read in its entirety, it is clear that the special or pecuniary value of a dog to its owner refers solely to economic value ascertained by reference to the dogs usefulness or services not value attributed to companionship or other sentimental considerations. Heiligmann, 16 S.W. at 932; see Petco, 144 S.W.3d at 561. Indeed, the only evidence referenced in the Courts opinion regarding the dogs value was the dogs special training and one dogs ability to alert its owner as to the gender and age of approaching visitors. The opinion makes no reference, by implication or otherwise, to evidence of companionship or owner sentiment. The Austin Court of Appeals interpreted Heiligmann correctly in Petco. There, the dog owner sued a pet store to recover damages that the owner allegedly suffered when her dog, a miniature schnauzer named Licorice, was killed in traffic after escaping from a pet groomer. The trial court awarded the owner $10,000 as intrinsic value loss of companionship damages based on testimony that Licorice was a friend and companion to the owner. Petco, 144 S.W.3d at 557, 563 (Licorice was with me all the
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time that I was home. We went places together. She was a companion to me and I miss her.). Noting that Heiligmann remains the law today, Justice Pemberton, writing for the court, identified three key principles for which Heiligmann stands one being that special or pecuniary value refers solely to economic value derived from the dogs usefulness or services. Id. at 561. The court held: 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. Thus, we follow Heiligmann and reject

Schusters attempt to expand intrinsic value damages to embrace the subjective value that a dogs owner places on its companionship. Id. at 565. Justice Pemberton and the Austin court got it right in Petco in more ways than one they correctly interpreted Heiligmann as precluding loss of companionship damages in the form of intrinsic or sentimental value property damages, and they properly deferred to this Courts prerogative to overrule Heiligmann if the Court so chooses. The other courts of appeals that have addressed the issue have followed the same approach and reached the same result.6 Even if this Court agrees with the Fort Worth Court of Appeals, however, it should grant the petition to resolve the conflict created by the courts decision

See Mireles v. Mormon, 2010 WL 3059241 (Tex. App.Austin, No. 03-09-00451-CV, Aug. 6, 2010); 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 pet.); Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App.Houston [1st] 1994, writ denied); Youngs Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex. App.Beaumont 1931, no writ).
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and give Texas courts guidance as to what the true rule is for measuring the damages for loss of a dog. B. More Recent Decisions of this Court Do Not Broaden the Availability of Intrinsic or Sentimental Value Property Damages to Animal Cases.

In addition to its flawed interpretation of Heiligmann, the court of appeals erroneously interpreted three subsequent decisions of this Court as supporting its holding that companionship or sentimental value damages are now recoverable for the negligent destruction of a dog: Likes, 962 S.W.2d at 489; Porras, 675 S.W.2d at 503; and Brown, 369 S.W.2d at 299. None of these decisions lend support to the court of appeals recognition of loss of companionship damages in the form of intrinsic or sentimental value property damages for the wrongful death of a dog. In Brown, the question before the Court was whether the evidence was legally sufficient to support an award of monetary damages for personal property destroyed in a fire which the Court characterized as heirlooms.7 The Court held: 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].
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. Id. at 304.
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7

Brown, 369 S.W.2d at 305. Browns rules for sentimental value property damage have no application here. As the Court recognized, property in the nature of an heirloom is irreplaceable and cannot be reproduced. Because their primary value is in sentiment, no price paid in the

marketplace could adequately compensate the owner for their loss or destruction. The same is not true for a dog. While an owner may develop a deep emotional bond with the dog, it is common knowledge that, unlike heirlooms, most dogs have a market value that would adequately compensate the owners for their loss or destruction. Moreover,

virtually every dog, regardless of breed or temperament, is in high supply and capable of being reproduced. Thus, it is unnecessary to allow damages based solely on the

sentiment of the dogs owner to satisfy the fundamental rule of damages recognized by this Court in Brown that every wrongful injury or loss be adequately and reasonably compensated. Id. at 305. The court of appeals reliance on Porras to support the conclusion that sentimentbased damages are recoverable for the negligent destruction of a dog is also misplaced. Porras involved a suit for permanent damage to land resulting, in part, from the defendants cutting down shade or ornamental trees on the owners property. Porras, 675 S.W.2d at 506. The evidence showed that the market value of the land had actually been increased by cutting down the trees. Id. at 505. The Court held that in such a case, where cutting down the trees does not reduce the market value of the property, the landowner is entitled to recover damages for the value of the trees under the intrinsic

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value rule.8 Id. at 506. The Court further held that the property owner could opine about the trees value to him. Porras, 675 S.W.2d at 505. As Porras illustrates, intrinsic value damages refer to the inherent value of the property itself, as determined by the value to the owner.9 Id. at 505. They are

recoverable only where the property is shown to have neither market value nor replacement value. See International-Great N.R.R. v. Casey, 46 S.W.2d 669, 670 (Tex. Com. App. 1932, holding approved); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 812-13 (1954) (in condemnation case, landowner cannot recover intrinsic value absent finding the property had no market value). In determining the propertys value to the owner, the trier of fact may consider economic factors such as the original cost, the cost of replacement, opinions of qualified witnesses, including the owner, the use to which the property was put, as well as any other reasonably relevant facts. Gulf States, 79 S.W.3d. at 566 (citing Allstate Ins. Co. v. Chance, 590 S.W.2d 703, 704 (Tex. 1979)). Importantly, unlike sentimental value property damages recognized in Brown, sentiment and other fanciful considerations are excluded from intrinsic value property damages. See Gulf States Util. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002); see also Crisp v. Security Natl Ins. Co., 369 S.W.2d 326, 328-29 (Tex. 1963) (the measure of damages that should be applied is the actual worth or values of the articles to the
Accord 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).
9 8

Intrinsic is defined as internal; inherent. Pertaining to the essential nature of a thing. BLACKS LAW DICTIONARY (9th ed. 2009). Intrinsic value is defined as the true, inherent and essential value of a thing, not depending upon accident, place or person but same everywhere and to everyone. Id.
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owner for use in the condition they were in at the time of the fire excluding any fanciful or sentimental considerations). The rules governing intrinsic value damages do not apply in this case because the Medlens are seeking damages based on companionship and sentimental considerations, not the inherent value of their dog itself. The court of appeals glossed over this

distinction, and erroneously assumed that intrinsic and sentimental value are the same.10 Medlen, 2011 WL 5247375 at *4 (The Texas Supreme Courthas 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 the intrinsic or sentimental value.). As a result, the court of appeals erred in holding that sentimental considerations may be taken into account in determining the intrinsic value of personal property. Even assuming owner sentiment may be considered in assessing the intrinsic value of property, the court of appeals erred in allowing the Medlens to recover damages for the negligent destruction of their dog based on sentimental considerations for the reasons discussed elsewhere in this petition. The relevant question in Likes was whether mental anguish damages are recoverable for negligent property damage. Holding that such damages were not

compensable under Texas law, the Court reaffirmed the general rule that the measure of damage for personal property is the propertys market value or the cost of repairing or replacing it. Id. at 497. The Court also discussed the special rules recognized in
10

This confusion is, perhaps, understandable given that fact that the Medlens mistakenly represented that this Court and others have 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.
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Brown for property that has its primary value in sentiment. Id. In such cases, the Court explained that the owners feelings help to determine the economic value of the destroyed item for purposes of property damages, not the owners mental anguish. Id. Because a plaintiff whose property has been harmed can ordinarily recover fully for that loss through economic damages, our reluctance to leave the legally injured plaintiff with no remedy at all does not come into play in cases where the primary injury is to property. Id. (emphasis supplied). The same logic applies to the damages at issue here. The court of appeals decision allows the Medlens to recover damages for personal injury to them in the form of loss of companionship based on the negligent loss of property. The two types of damages, however, are fundamentally distinct. See, e.g., Petco, 144 S.W.3d at 563; Zeid 953 S.W.2d at 369-70 (both distinguishing mental anguish and pain and suffering claim from intrinsic value damages claim). Texas courts classify dogs as personal property for damage purposes, not as 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. When personal property having its value solely in sentiment is destroyed, the owners feelings are relevant to determining the economic value of the thing destroyed, not the owners pain and suffering or emotional attachment to the thing. Thus, under the analysis applied to mental anguish damages in Likes, loss of companionship damages are not compensable for the negligent destruction of a dog. In holding otherwise, the court of appeals decision is inconsistent with the rationale of Likes.

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II.

NO COMPELLING SOCIAL POLICY FAVORS RECOGNITION OF A DOG OWNERS RIGHT TO RECOVER LOSS OF COMPANIONSHIP DAMAGES AND PUBLIC POLICY FORBIDS IT. Even if this Courts decisions may be construed as broadening the availability of

intrinsic or sentimental value property damages to include loss of companionship damages in animal law cases, the Court should preclude that liability for social and public policy reasons. The court of appeals recognition of a claim for loss of companionship in the form of sentimental value property damages for the death of a dog is analogous to loss of consortium of a family member.11 Thus, the Courts decisions in loss of consortium cases should inform its determination of whether the 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 keep pace with modern society by recognizing that the emotional interests of the marriage relationship are as worthy of protection from negligent invasion as are other legally protected interests. 572 S.W.2d 665, 668 (Tex. 1978).
11

Whittlesey v. Miller,

For similar social policy reasons, the Court

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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subsequently extended loss of consortium liability to the parent-child relationship.12 The Court, however, has narrowly cabined these extensions of common law to these two primary human relationships and rejected recovery by siblings, step-parents, grandparents, close friends and others.13 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.14 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 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,

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). Roberts, 111 S.W.3d at 118; see Ford Motor Co. v. Miles, 967 S.W.2d 377, 383 (Tex. 1998); Reagan, 804 S.W.2d at 467. 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, 310 S.W.2d 736, 738-39 (Tex. 1980).
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14 13

12

liability for the negligent death of a companion animal would have no sensible or just stopping point. As the Wisconsin Supreme Court aptly 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. Rabideau v. City of Racine, 627 N.W.2d 795, 802 (Wis. 2001). PRAYER For all of the reasons above, the court of appeals decision to expand the common law remedy for negligent loss of a dog to include loss of companionship in the form of sentimental value property damages has no social justification and is contrary to the common law and public policy of this State. Strickland prays that this Court reverse the court of appeals opinion and judgment, and render judgment dismissing the Medlens claims.

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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 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

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of February, 2012, a true and correct copy of the foregoing document has been served on opposing counsel via certified mail, return receipt requested and electronic mail: VIA EMAIL AND CMRRR Randall E. Turner rturner@galyen.com BAILEY & GALYEN 1901 W. Airport Freeway Bedford, Texas 76021 Counsel for Respondents /s/ Alison M. Rowe Alison M. Rowe

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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 TO AMENDED PETITION FOR REVIEW ________________________________________________________________________ 1. Order on Carla Stricklands Special Exceptions to Plaintiffs Second Amended Petition, Cause No. 2009-75521-1, Kathryn and Jeremy Medlen v. Carla Strickland, in the County Court at Law No. 1, Tarrant County, Texas. Medlen v. Strickland, 2011 WL 5247375 (Tex. App.Fort Worth, No. 02-1100105-CV, Nov. 3, 2011).

2.

Appendix No. 1 Amended Petition for Review

Order on Carla Stricklands Special Exceptions to Plaintiffs Second Amended Petition Cause No. 2009-75521-1 Kathryn and Jeremy Medlen v. Carla Strickland

Appendix No. 2 Amended Petition for Review

Medlen v. Strickland, 2011 WL 5247375 (Tex. App.Fort Worth, No. 02-11-00105-CV, Nov. 3, 2011).

Page 1 --- S.W.3d ----, 2011 WL 5247375 (Tex.App.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex.App.-Fort Worth))

Only the Westlaw citation is currently available. Court of Appeals of Texas, Fort Worth. Kathryn and Jeremy MEDLEN, Appellants, v. Carla STRICKLAND, Appellee. No. 021100105CV. 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. West Headnotes [1] Animals 28 44

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 28 1.5(4)

28 Animals 28k1.5 Animals as Property; Status 28k1.5(4) k. Dogs. Most Cited Cases Dogs are personal property under state law. Randall E. Turner, Hurst, for Appellants. R. Paul Boudloche, Fort Worth, for Appellee. PANEL: WALKER, MEIER, and GABRIEL, JJ. OPINION LEE GABRIEL, Justice. *1 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 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.

28 Animals 28k43 Injuring or Killing Animals in General 28k44 k. Civil Liability. Most Cited Cases Damages 115 105

115 Damages 115VI Measure of Damages 115VI(B) Injuries to Property 115k105 k. Destruction or Loss of Property. Most Cited Cases 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

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The Medlens sued Strickland, alleging that her FN1 negligence proximately caused Avery's death. 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 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, 30405 (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 use-

fulness 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. *2 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 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 30405 (awarding sentimental dam-

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ages 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. 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). *3 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 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 37172. 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 36970. 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 companion-

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ship 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. *4 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 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 22526, 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 Heiligmann 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 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 dam-

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Page 5 --- S.W.3d ----, 2011 WL 5247375 (Tex.App.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex.App.-Fort Worth))

ages 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 30405. 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 37778 (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 value of man's best friend should be protected. *5 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. FN1. The Medlens also sued another employee of animal control, whom they later nonsuited. He is not a party to this appeal. Tex.App.Fort Worth,2011. Medlen v. Strickland --- S.W.3d ----, 2011 WL 5247375 (Tex.App.-Fort Worth) END OF DOCUMENT

2012 Thomson Reuters. No Claim to Orig. US Gov. Works.