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

PETITIONER’S 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

FILEDIN THE SUPREME COURTOF TEXAS12 June 20 BLAKE. A. HAWTHORNECLERK

Petitioner’s Brief on the Merits Page i

IDENTITY OF PARTIES AND COUNSEL

Petitioner:

Carla Strickland

Counsel for Petitioner:

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

Petitioner’s Brief on the Merits Page ii

Respondents:

Kathryn and Jeremy Medlen

Counsel for Respondents:

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

Petitioner’s Brief on the Merits Page iii

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. Avery is Impounded and Euthanized. .......................................................... 1

B. The Medlens File Suit for Sentimental Damages. ........................................ 1

C. Strickland Specially Excepts to the Claim for Sentimental

Damages. ...................................................................................................... 2

D. Franka v. Velasquez is Decided. .................................................................. 2

E. The Medlens’ Suit is Dismissed on Strickland’s Special

Exceptions. ................................................................................................... 3

F. 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

II. THE COURT’S POST-HEILIGMANN DECISIONS

WOULD LIMIT RECOVERY FOR THE LOSS OF A PET

TO THE PET’S ECONOMIC VALUE EXCLUDING

SENTIMENTAL CONSIDERATIONS. ................................................... 11

A. The General Rule for Measuring the Loss of Personal

Property Having No Market or Replacement Value is

Petitioner’s Brief on the Merits Page iv

Actual Economic Value to the Owner; the

Sentimental Value Measure is an Exception that

Applies Only to Heirlooms. ............................................................ 11

B. Actual Value Damages under Crisp v. Security Nat’l

Ins. Co. ............................................................................................ 12

C. Sentimental Value Damages Under Brown v.

Frontier Theatres, Inc. .................................................................... 15

III. THE INTRINSIC VALUE MEASURE ADOPTED IN

PORRAS V. CRAIG DOES NOT INCLUDE

SENTIMENTAL VALUE.......................................................................... 18

IV. CITY OF TYLER V. LIKES PROHIBITS RECOVERY OF

LOST COMPANIONSHIP BASED SOLELY ON

NEGLIGENT DAMAGE TO A DOG. ...................................................... 21

V. PUBLIC POLICY FORBIDS RECOVERY OF LOSS OF

COMPANIONSHIP OR SENTIMENTAL VALUE

DAMAGES FOR A DOG. ......................................................................... 23

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. ............................. 27

CONCLUSION ................................................................................................................. 28

PRAYER ........................................................................................................................... 29

CERTIFICATE OF SERVICE .......................................................................................... 30

Petitioner’s Brief on the Merits Page v

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 ref’d 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 ref’d 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

Petitioner’s Brief on the Merits Page vi

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 Nat’l 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 ref’d 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

Petitioner’s Brief on the Merits Page vii

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 Ass’n of Sporting Officials El Paso Chapter,

172 S.W.3d 274 (Tex. App.—El Paso 2005, no pet.) .................................................. 28

Petitioner’s Brief on the Merits Page viii

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 Ass’n 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

Petitioner’s Brief on the Merits Page ix

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),

aff’d, 992 A.2d 1237 (Del. 2010) ................................................................................... 6

National Collegiate Athletic Ass’n. 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 ref’d 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

Petitioner’s Brief on the Merits Page x

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 ref’d 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. Teach’g Hosp.,

723 S.E.2d 352 (N.C. Ct. App. 2012) ............................................................................ 6

Sherman v. Kissinger,

195 P.3d 539 (Wash. Ct. App. 2008) ............................................................................. 6

Petitioner’s Brief on the Merits Page xi

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 Ass’n 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. Butt’s 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

Petitioner’s Brief on the Merits Page xii

Yazdani-Beioky v. Tremont Tower Condo. Ass’n, Inc.,

2011 WL 1434837 (Tex. App.—Houston [1st Dist.] Apr. 14, 2011, no pet.) ............. 14

Young’s 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. GOV’T CODE § 22.001(a)(2) and (a)(6) (West 2011) ................................................ xv

STATE RULES

TEX. R. APP. P. 24.2(a)(3).................................................................................................. 14

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (9th ed. 2009) ....................................................................... 19

BLACK’S 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 Ferrets…Oh 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. & Pol’y 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

Petitioner’s Brief on the Merits Page xiii

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.

Trial Court Disposition:

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

Strickland’s 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]

Parties on Appeal: Defendant/Appellee/Petitioner:

Carla Strickland

Plaintiff/Appellant/Respondents:

Kathryn and Jeremy Medlen

Court of Appeals: Second Court of Appeals, Fort Worth, Texas

Appellate Court Disposition: 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 Strickland’s cross-point

asserting that she was entitled to dismissal of the suit

on governmental immunity grounds. The court denied

Appellee’s 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.

Petitioner’s Brief on the Merits Page xiv

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 Nat’l 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 Court’s decisions, the court of appeals’ opinion

conflicts with the decisions of other courts of appeals that, consistent with Heiligmann

Petitioner’s Brief on the Merits Page xv

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); Young’s 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 action—loss 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 Texas’s 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

Petitioner’s Brief on the Merits Page xvi

should defer the decision as to whether to create an appropriately structured remedy for

such a loss to the Texas Legislature.

Petitioner’s Brief on the Merits Page xvii

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?

2. 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)?

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

Petitioner’s Brief on the Merits Page 1

STATEMENT OF FACTS

A. Avery is Impounded and Euthanized.

On or about June 2, 2009, Kathryn and Jeremy Medlen’s 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 Avery’s 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 Strickland’s supervisor,

Keane Menefee, for negligence, and pleaded damages for Avery’s “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.

2 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 employee’s 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 employee’s official capacity

only. On the employee’s 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).

Petitioner’s Brief on the Merits Page 2

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 Avery’s 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 Avery’s “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

3 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.

4 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]

Petitioner’s Brief on the Merits Page 3

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 government’s

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 Strickland’s Special Exceptions.

On February 25, 2011, a hearing was held on Strickland’s 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 court’s 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.

Petitioner’s Brief on the Merits Page 4

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 court’s 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 Court—City 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 Strickland’s cross-point of whether Strickland was entitled to

dismissal on immunity grounds under Franka. Id. at 581.

Petitioner’s Brief on the Merits Page 5

SUMMARY OF THE ARGUMENT

This case involves the straightforward application of the Court’s 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

“timeworn”—and 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 considerations—the 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 owner’s

Petitioner’s Brief on the Merits Page 6

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

5 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), aff’d, 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. Butt’s 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 Teach’g 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.

Petitioner’s Brief on the Merits Page 7

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 state’s 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 Strickland’s 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.

6 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 pet’s death or

fatal injury occurs on the property of the owner; excludes certain entities and individuals, such as

veterinarians and animal shelters).

Petitioner’s Brief on the Merits Page 8

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’ dogs—the 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 child”—the

Court upheld the jury’s 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

Petitioner’s Brief on the Merits Page 9

followed Heiligmann’s 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

7 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 dog’s 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 dog’s 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).

8 In addition to attorney’s 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.

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).

Petitioner’s Brief on the Merits Page 10

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 dog’s 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 Court’s 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).

11 The Fort Worth court disagreed with the Austin court’s 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 dog’s 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.

12 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).

Petitioner’s Brief on the Merits Page 11

II. THE COURT’S POST-HEILIGMANN DECISIONS WOULD LIMIT

RECOVERY FOR THE LOSS OF A PET TO THE PET’S 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 Court’s long-standing

general rule for measuring personal property having no market or replacement value—

“actual worth or value” to the owner excluding sentimental considerations—an 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 Nat’l 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.

14 See Crisp, 369 S.W.2d at 328.

Petitioner’s Brief on the Merits Page 12

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 Court’s 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 court’s misinterpretation of

Brown’s 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 Nat’l 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.

Petitioner’s Brief on the Merits Page 13

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

Petitioner’s Brief on the Merits Page 14

in numerous decisions of the state’s 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 dog’s] loss to either party in terms of

judgment damages, we would be limited to considering [the dog’s]

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. Ass’n, 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 ref’d n.r.e.); First

Preferred Ins. Co. v. Bell, 587 S.W.2d 798 (Tex. Civ. App.—Amarillo 1979, writ ref’d n.r.e.); American

Trans. & Storage Co. v. Reichley, 560 S.W.2d 196 (Tex. Civ. App.—Amarillo 1977, writ ref’d 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 ref’d 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).

Petitioner’s Brief on the Merits Page 15

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 property’s value. In every significant respect, the actual value measure is

synonymous with Heiligmann’s 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”

18

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 pet’s 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 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.

Petitioner’s Brief on the Merits Page 16

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

dog’s sentimental value discussed infra at 22-25, dogs and other pets do not fall within

20

The items included a wedding veil, shoes, and a lace collar belonging to the owner’s grandmother, a

pistol belonging to the owner’s grandfather, a watch belonging to the owner’s great grandmother, and

“slumber spreads” made by hand by the owner’s great, great, great grandmother. Brown, 369 S.W.3d at

304.

Petitioner’s Brief on the Merits Page 17

Brown’s 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 dog’s 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 dog’s 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 dog’s loss. In cases involving a dog

allegedly having no market value, or a replacement value that would result in economic

21

The Medlens labeled their alleged damages as “intrinsic,” but they are, in fact, seeking—and the court

of appeals held they are entitled to recover—sentimental 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)).

22 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. & Pol’y 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 Ferrets…Oh 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).

Petitioner’s Brief on the Merits Page 18

gain to the owner,23

the appropriate measure under the Court’s decisions is the dog’s

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 defendant’s cutting down shade or ornamental trees

on the owner’s 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 over-

compensate 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 Heiligmann’s slightly

modified version of that standard. See Crisp, 369 S.W.2d at 328; Heiligmann, 16 S.W. at 932.

Petitioner’s Brief on the Merits Page 19

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 Young’s 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

24

Accord Lamar Co. Elec. Co-op Ass’n 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).

25 “Intrinsic” is defined in Black’s as “belonging to a thing by its very nature; not dependent on external

circumstances; inherent; essential.” BLACK’S 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 ref’d 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.”).

Petitioner’s Brief on the Merits Page 20

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 dog’s “special or

intrinsic value.” Id.

Citing Heiligmann, the Redmon court sustained the defendant’s 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 mare’s “actual and intrinsic” and sentimental

value, alleging that the mare had no market value. In reversing the trial court’s 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.

Petitioner’s Brief on the Merits Page 21

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 Court’s decision in Crisp

affirms the correctness of Redmon’s 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 “companionship…value damages” – a form of personal injury damages – are

recoverable for the wrongful death of a pet dog – a type of personal property. See

27

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 Black’s 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.” BLACK’S LAW DICTIONARY at 739 (5th ed. 1979). Nowhere

in the definition is there any mention of sentimental value.

28 See Medlen, 353 S.W.3d at 578. The court of appeals did not discuss or distinguish Guthrie.

29 Part of the court’s 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 Court’s decisions that the

Court uses the two terms interchangeably.

Petitioner’s Brief on the Merits Page 22

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]

Petitioner’s Brief on the Merits Page 23

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

30

The discussion in Likes about Brown’s 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 property—furniture, automobiles,

and “various assets of [the plaintiff’s] interior decorating business”—was market value. Id. at 497. The

Court did not discuss the actual value measure.

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.

Petitioner’s Brief on the Merits Page 24

Texas Municipal League, et al. at 3-11; Amicus Letter of Texas Civil Justice League at 2-

3; 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 Court’s 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

relationship—an 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).

Petitioner’s Brief on the Merits Page 25

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 “man’s 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 human-

dog 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 member’s 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).

Petitioner’s Brief on the Merits Page 26

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 another’s pet is not liable for emotional harm suffered

by the pet’s 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).

Petitioner’s Brief on the Merits Page 27

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 cross-

point 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, 6-

8]

Petitioner’s Brief on the Merits Page 28

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 Ass’n. 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

36

“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).

37 E.g. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 850-851 (Tex. 2000); Texas Ass’n 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 Ass’n 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.).

Petitioner’s Brief on the Merits Page 29

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

Petitioner’s Brief on the Merits Page 30

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

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

PETITIONER’S BRIEF ON THE MERITS

Tab 1 - Medlen v. Strickland, 353 S.W.3d 576 (Tex. App.—Fort Worth 2011, pet. filed).

Tab 2 - Plaintiff’s First Amended Petition

Tab 3 - Carla Strickland’s Original Answer Subject to the Plea in Abatement

Tab 4 - Carla Strickland’s Special Exceptions to Plaintiff’s First Amended Original

Petition

Tab 5 - Order on Special Exceptions to Plaintiff’s First Amended Original Petition

Tab 6 - Plaintiff’s Second Amended Petition

Tab 7 - Agreed Order of Dismissal

Tab 8 - Carla Strickland’s Special Exceptions to Plaintiff’s Second Amended Petition

Tab 9 - Order on Carla Strickland’s Special Exceptions to Plaintiff’s 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

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.

1. Animals O 4 4

Damages O 1 0 5

Dog owners could be awarded dam-ages based on sentimental value of euthan-ized 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 re-sulting in euthanization of dog; case law provided for recovery of ''special value'' of dog, and such special value could be de-rived from attachment that owners felt for

o i KEY N U M B E R S Y S T E M > dog.

2. Animals O1.5(4)

Dogs are personal property under state law. Kathryn and Jeremy MEDLEN,

Appellants,

v.

Carla STRICKLAND, Appellee.

No. 02-11-00105-C V. Randall E. Turner, Hurst, for Appel-

lants.

Court of Appeals of Texas, R. Paul Boudloche, Fort Worth, for Ap-pellee. Fort Worth.

Nov. 3, 2011. PANEL: WALKER, MEIER, and

GABRIEL, JJ . Reconsideration En Banc Overruled Dec. 1, 2011.

Background: Dog owners brought action against employee of animal shelter regard-ing alleged negligence resulting in euthani-zation of dog. The County Court at Law No. 1, Tarrant County, Don Pierson, J., dismissed action. Owners appealed.

OPINION

LEE 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.

Holding: The Court of Appeals, Lee Ga-briel, 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.

Background Facts

On or about June 2, 2009, the Medlens' Reversed and remanded. dog, Avery, escaped from their backyard

2006, pet. denied). 8. See Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex.App.-Fort Worth

MEDLEN v. STRICKLAND Tex. 577 Cite as 353 S.W.3d 576 (Tex.App.—Fort Worth 2011)

Natural Gas Co. v. Minco Oil & Gas, Inc., and was picked up by animal control. Jer-emy 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

8 S.W.3d 309, 312 (Tex.1999).

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

[2]

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. following day. She put Avery on the list, 1984); Brown v. Frontier Theatres, Inc., 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.

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

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 except-ed to the Medlens' claim for intrinsic value

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 Heilig-mann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex.1891). For dogs, a party can only

damages on the grounds that such dam-ages 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

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 Heilig-mann prohibits consideration of the senti-mental 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.

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 determi-nations of the trial court but instead apply a de novo standard of review. El Paso

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

1. The Medlens also sued another employee of animal control, whom they later nonsuited.

He is not a party to this appeal.

578 Tex. 353 SOUTH WESTERN REPORTER, 3d SERIES

argued that there was no evidence pre-sented supporting a market or pecuniary value of the dogs or that their use or service was valuable to their owner. Id.

Strickland points out that several courts of appeals' decisions have reaffirmed Heil-igmann by holding that damages for the loss of a dog can only be based on market value or a value ascertained from its use-The court upheld the damages award, fulness or services, not companionship or sentimental value. See Petco Animal Sup-

holding that the value of a dog may be determined by ''either a market value, if the dog has any, or some special or pecuni-ary value to the owner, that may be ascer-tained by reference to the usefulness and services of the dog.'' Id. In that case, ''the evidence [was] ample showing the useful-ness 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.

plies, Inc. v. Schuster, 144 S.W.3d 554 (Tex.App.-Austin 2004, no pet.) (interpret-ing 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 suf-fering or mental anguish for the loss of a pet); Bueckner v. Hamel, 886 S.W.2d 368 (Tex.App.-Houston [1st Dist.] 1994, writ

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 val-

denied) (using expected stud fees to deter-mine 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 posi-tion 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 deter-

See Likes, 962 S.W.2d at 497 (reaf-ue. firming recovery of sentimental value for items that have little or no market value, such as family correspondence, family pho-tographs, 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 sentimen-tal damages for loss of items such as wed-ding veil, shoes, point lace collar, watch, and slumber spreads). The Medlens con-tend that the notion that the Texas Su- mined that the dogs had a market value,

pecuniary value, intrinsic value as compan-ions, and special value as loved pets, and it

preme Court intended to exclude dogs from the intrinsic value rule appears no-where in these subsequent opinions. They argue that to treat a dog differently than all other personal property would be irra-tional.

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

MEDLEN v. STRICKLAND Tex. 579 Cite as 353 S.W.3d 576 (Tex.App.—Fort Worth 2011)

the dogs would have produced in the fu-ture. 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

emotional distress, and intrinsic value, for loss of companionship after her dog es-caped from a groomer and was run over. 144 S.W.3d at 557. Petco appealed, as-serting that as a matter of law the trial court could not award lost wages, mental anguish, counseling costs, and loss of com-panionship 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

both legally and factually sufficient to sup-port the trial court's finding of actual dam-ages ''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

See id. at 377 (''I had strong feelings. consider [pets] to belong to a unique cate-gory of 'property' that neither statutory

565.

We respectfully disagree with our sister court's interpretation of Heiligmann and its holding in Petco regarding intrinsic val-ue 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 certain-ly did not rule out companionship or senti-mental value. The Heiligmann opinion never uses the term ''intrinsic value'' or ''sentimental value''; therefore, the opinion cannot preclude an award of damages nev-er 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 reme-dy. The wrong-doer cannot escape the

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 an-guish 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 plead-ed 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 dam-ages, including lost wages, mental anguish,

580 Tex. 353 SOUTH WESTERN REPORTER, 3d SERIES

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 an-other's rights.

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, Tex-as 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 proper-

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 twen-ty years of law and overruling one one-hundred-and-twenty-year-old case. ond, we are doing neither of those things. We are duty-bound to interpret Heilig-mann in light of subsequent supreme court decisions which have developed and refined the law concerning intrinsic value damages.

ty. 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 own-er 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, senti-mental damages may now be recovered for the loss or destruction of all types of per-sonal property. See Likes, 962 S.W.2d at

Sec-

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 mar-ket 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 includ-ed in its price if it were sold. We believe

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. Bueck-ner, 886 S.W.2d at 377-78 (Andell, J., con-curring) (''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

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 al-lowing sentimental damages for personal property by arguing that sentimental value is only recoverable for heirlooms or prop-erty that takes a long time to replace, such as trees. According to Strickland's posi-tion, 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 in-trinsic damages for a pet that had been inherited from a loved one, but not a pet

NATIONAL CITY BANK v. TEXAS CAPITAL BANK Tex. 581 Cite as 353 S.W.3d 581 (Tex.App.—Dallas 2011)

value of ''man's best friend'' should be protected.

Because an owner may be awarded dam-ages 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. Be-cause we have sustained the Medlens' sole

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 sum-mary 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 viola-tion of writ of garnishment.

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.

Affirmed as modified.

1. Garnishment O 1 3 38.2(b)(2).

A ''garnishee'' is a third party who owes a debt to or holds property of the 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.

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.

O | KEY N U M B E R S Y S T E M )

NATIONAL CITY BANK, A Subsidiary of National City Bank Corporation, a

Delaware Corporation, Appellant, 3. Garnishment O 1

Garnishment is a statutory proceeding whereby property of the debtor that is in possession of the garnishee is applied to

v. TEXAS CAPITAL BANK, N.A., A

National Banking Association, the payment of the debt owed by the debt-or to the garnishor. V.T.C.A., Civil Prac-tice & Remedies Code § 63.001 et seq.;

Appellee. No. 05-10-00028-CV.

Vernon's Ann.Texas Rules Civ.Proc., Rules Court of Appeals of Texas, 657-679.

Dallas. 4. Garnishment O 1 0 5

In a garnishment action, a garnishor is subrogated to the rights of the debtor

Nov. 23, 2011. Background: Garnishor filed garnishment proceeding against garnishee, a bank, and

TAB 2 Plaintiff's First Amended

Petition

PAGE 03 MASON S BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360139

' JARS ANT O O i f t T V Cause No- 09-75521-1

2 M 9 0 E C 3 0 P H I ' : 3 5

fOKaSOH

IN T H E COUlNTy CO^J%TAT L A W KATHRYN AND JEREMY MEDLEN § BY. §

§ N U M B E R O N E § V.

§ §

KEANE MENEFEE TARRANT COUNTY, TEXAS §

PLAINTIFF'S FIRST AMENDED PETmON 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 last tihree digits 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

OO^

PAGE 04 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

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

ocft

PAGE 05 MASON 8i BOUDLOCHE 02/01/2012 16:59 8173360139

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.

00^

PAGE 06 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

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:.

5 State BaxTO? 1800 Norwood Dr., Suite 100 ' Hurst, Texas 76054 Telephone; $17-282-3868 Fax: 817-268-1563 Email: randv@tuniermckenzie.com

te-

ATTORNEY FOR PLAINTIFFS

te><

PAGE 07 MASON & BOUDLDCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

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 atov^eirtitled 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 /Mephonic 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

PAGE 1 1 MASON & BOUDLDGHE 0 2 / 0 1 / 2 0 1 2 I S : 5 9 8 1 7 3 3 6 0 1 9 9

DUPLICATE CAUSE NO. 2009-7552-1-1

KATHRYN AND JEREMY MEDLEN § IN THE COUNTY COURT §

Plaintiffs, § § AT LAW NO. 1 y

§ KEANEMENEFEE §

§ Defendant.

TARRANT COUNTY, TEXAS

• CARLA STRICKLAND'S ORIGINAL ANSWER 3 £ s § SUBJECT TO THE PLEA IN ABATEMENT ! Z S

! U 1 5 TO THE HONORABLE JUDGE OF SAID COURT: j *r< rsj o 2

^ g r NOW COMES Carla Strickland, one of the Defendants in the above 3 ; ~ , c ;

i zz ... • i • *

numbered cause, and raakes and files this, her Original Answer Subject to Carjla Stri< land?p y

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.

0\£>

PAGE 12 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 I B : 5 8 8173380199

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

Attorney for 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 been fe&ed and 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 Attorney for Plaintiffs '

Mr. Luis Fierros City Attorney's Office City of Fort Worth 1000 Tbrockmoiton St. Fort Worth, TX 76102-6311 FAX: 817-392-8359 Attorney for Ke'ane Menefee

• Paul Btmdloche

ou

TAB 4 Carla Strickland's Special

Exceptions to Plaintiff's First Amended Original Petition

0 2 / 0 1 / 2 0 1 2 1 5 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 13

flttSMff rm CAUSE NO. 2009-75521-1

KATHRYN AND JEREMY MEDLEN IN THE COX. § V

Plaintiffs, § §

§ V.

§ •V. KEANEMENEFEE §

§

Defendant. § TARRANT COUNTY, TEXAS §

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. t

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

O i l .

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 14

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

<5#

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 15

— — — •

Pam Boudloche SBN: 02694700

MASON & BOUDLOCHE, LLP 1200 Swmnit Avenue, Suite 700 Fort Worth, Texas 76102 TEL 817/338-0639 FAX 817/336-0199

Attorney for 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-

Randall E. Turner Turner & McKenzie, PC 1800 Norwood Dr., Suite 100 Hurst, TX 76054 FAX: 817-268-1563 Attorney for Tlaintiffs

Mr. Luis Fierros City Attorney's Offtee City of Fort Worth 1000 Throckcaorton St Fort Worth, TX 76102-6311 FAX: 817-392-8359 Attorney for 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

<3.1

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 MASON & BDUDLOCHE 8173360199 PAGE 1G r

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, Appellee-

No. 03-03-00354-CV. April 2 9 , 2 0 0 4 .

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, J4 entered default judgment in favor of dog-owner and awarded damages. Pet store appealed.

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, we 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 Thomson Reuters. No claim to original U.S. Government Works. 1

4

f

TAB 5 Order on Special Exceptions to Plaintiff's First Amended

Original Petition

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 17

.CAUSE NO, 2009-75521-1

IN THE COUNTY COURT KAIHRYN AND JEREMY MEPLEN • §

PlaintifFs, § §

AT LAW NO. 1 § §

KEANEMENEFEE § §

TARRANT COUNTY, TEXAS 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 SPECIAL EXCEPTIONS TO PLAINTIFFS* FIRST AMENDED ORIGINAL PETITION Page 1 of \

TAB 6 Plaintiff's Second Amended

Petition

PAGE 18 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BDUDLOCHE

D « . - 3 1 . 2 0 1 0 9 : 1 7 A M I k 6 2 3 8 P. 3

Cause No. 09-7552M

KATHRYK AND JEREMY MEDLEM § IN THE COtSNTY COURT AT LAW § § § NUMBER ONE v. § §

KEANEMENEFEE § TARRANT COUNTY, TEXAS

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 giving rise to the claim occutred in Tarrant County.

02b

PAGE 19 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

D e c . 3 1 . 2 0 1 0 9 : 1 7 A M No. 6 2 3 3 P, 4

f 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 be retuxxang to 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

0 2 / 0 1 / 2 0 1 2 16 :59 8173360199 MASON S BOUDLOCHE PAGE 20 r • Dec. 31. 2 0 1 0 9:17AM ' No. 6 2 3 8 P. 5 i

Avery's owners were coming to reclaim him;

c. Failing to follow Annoal Control's mles, policies,'and procedures which prohibited

Avery from being 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 no reasonable prudent 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! IE) State Bar Ned 20.

PAGE 21 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

h. 6 2 3 8 P. 6 Dec. 3 1 2(310 9: ISAM i

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 courier receipted delivery

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

PAGE 22 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

PAGE 0 2 / 0 3 81739 ' H "359 12/30/2010 11; XI

c/C

r (

CAUSE NO. OMWai-l

§ m THE COUNTY COURT KATHRYN snd JERSMY MEDLEN,

pwnm, S I § § § AT LAW NO. 1 v, §

KEANEMENEFEE,

• Defendant

§

§ 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 P intiffs

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 request to dismiss te weH 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

SWckiand ramalna, and is active until disposition of that cause of atftfan by the Court.'

r (

ASRSSDCRQgR O F D i a ^ f i ^ j . Pasetf \

030

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8 1 7 3 3 6 0 1 9 9

I W 12/30/2010 l l : 11 ai73B7E'35l3

MASON S BOUDLOGHE PAGE 2 3

PAGE 0 3 / 0 3 •

$ / dav of Dwerribsr^soio, * '

SIGNEO this the

r DGE PRESIDING

AGR^D:

\ l U Rffiqyt{JE£j7umgr — At tor i lQf^Ksf l fn i fS i Kathryn Jemmy M«d]6ri

— - -Paul BoucJltsche Attorney for Dofendant Carta Strickland

/

lui# R, Flarres Attorney for pefendsint Keane Menefss

r

r &

A f f l W P O R f f l r f f ttEmmtok ' p«9«2

03(

TAB 8 Carla Strickland's Special Exceptions to Plaintiff's

Second Amended Petition

0 2 / 0 1 / 2 0 1 2 I S : 5 9 8 1 7 3 3 6 0 1 9 9 MASON & BOUDLOCHE PAGE 2 4

DdPUOQE CAUSE NO, 2009-75521-1

fCATHRYN AND JEREMY MEDLEN § IN THE COUNTY COURT §

Plaintiffs, § § s • •

AT LAW NO.?1 • vi y i C—

§ TiS KEANEMENEFEE § i

§ r •• i ; t

Defendant. § TARKANT COUNTY,-j^XAS ^ ' .•

•1:^ :

§ to.

CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO 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 Pagc l

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8 1 7 3 3 6 0 1 9 9 MASON & BOUDLOCHE PAGE 2 5

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. CARLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION Page 2

6^3

0 2 / 0 1 / 2 0 1 2 1G: 5 9 8 1 7 3 3 6 0 1 9 9 MASON & BOUDLOCHE PAGE 2 6

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

03^

MASON a BOUDLOCHE PAGE 27 0 2 / 0 1 / 2 0 1 2 1 5 : 5 9 8 1 7 3 3 8 0 1 9 9

. 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 Page 4-

*37"

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8 1 7 3 3 6 0 1 9 9 MASON & BOUDLOGHE PAGE 2 8

I Peteo Animal Supplies, Inc. v. Sctn-star, 144 S.W.3d 554 (2004)

l44S.W.3d554 Court of Appeals of Texas,

Austin. {

I

i 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 (n£Sc 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"; e^ecopla^ damages; and attorneys fees. Petco now brings arestricted appeal challenging the award of several

„ , V^StUttyfrJWt^2010Tha(V)son Reuters, No claim to orlgfnal U.S. Q w e m m e n t W p f f i j - i t f f f i

BMMh 1

h . ' - s

•r.. '•. /• •.

0 2 / 0 1 / 2 0 1 2 I S : 5 9 8 1 7 3 3 6 0 1 9 9 MASON & BOUDLOCHE PAGE 29

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. 2

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. Sdmter 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.

The court viewed tbeae aujotmts w "nww appropriate and more in lino -with anything dwt might hold up." 3

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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 law • • 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.Civ^App.-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 rom 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 the following complaints 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 default judgment 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 not filed a 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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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 iwre 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. 361,362»63 (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 HOC 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 chnge rafcrenced by die supicipc cgmt provided, in relevant pwt: la order ft* the plaintiffs to recover, yoo must find fiom the twtimony that the d«feod«ut poisoned the dogs, end that they were thes property of plaintiffs; that the dogs were of some pecuniaiy vdne.-^itbef 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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DisL] 1994, •writ denied); see also Arrington v. Anington, til3 S.W^d 565,569 (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 property»own^ship of "which is recognized -

under the law."). W e do not understand Schuster to be 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 r«9fictwg 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 lo t ions .

9 10 Second, Heiligmann identifies only two elements that can be awarded under the " t rue rule" of damages fo 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 to the usefulness and services of the dog*" Third, Heiligmann makes clear that the ''special o r pecnniaiy value" of a dog to i ts owner refers solely to economic value derived from the dog's nsefolneas and services, not va lue 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 369^

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 the 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 By 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 daaage 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 where a degree of culpability higher than simple negligence is found. Id. But the only Texas court to have subsequently addressed the 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 hannthe plaintiff personally. Sminele Pipeline Co. v. Brood Leaf Partners, Inc., 979 S.W.2d 730,753-57 (Tcx-App.-Houston [14th Dist.] 1998, no pe t ) . There is no such evidence here.

Has 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 nx t ) .

8

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 loose" 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 busy roads. Schuster then quantified her 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 8l«atal anguish damages when arising torn the 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

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 of Missouii 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").

9

*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 her 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 hen "[hjave youbeen through counseling since the death of licorice?" She responded that she had andhad spent $l60if leepayment t for the counseling Sessions. She provided no testimony regardingxtasonableness or necessity; therefore, this testimony'is no 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 pe 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 of c.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 l icorice. At the default judgment hearing, Schuster testified that she hadpurchasedLicorice "as a friend and companion" aftermost ofher children hadlefthome. Licorice, Schuster recounted,

was with me all the tune that I was horns. We always joked that her name should have been Velcro instead of Licorice because she was right by my 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 me 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 rmtamic 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).

25 Broadly speaiing, intrizuic value if an inherent value not established by *564 market forces; i t is apeisonal or sentimental value. Star Houston, Inc. v. Kundak, 843 S.W.2d 294,298 (Tex.App.-Honston [14th DistiJ 1992, no writ). For example, the intrinsic value of trees is said to be comprised of both an ornamental (aesthetic) value and a ntilicy (shade) value. Cummer-Grakw 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 icor ice 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 be recoverable, and the mere "peculiar or sentimental value placed upon fee dog by [the owner], or what he considered the dog worth to h im," 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 any, 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 modem view of dogs as beloved Meads 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, be 'very Hkdy* to risk their lives to save their pets, and another thirty-three percent indicated they would be 'somewhat likely" to pa 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 more 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 the

Austin area,10 Austin's *S6S "Mighty Texas Dog Wat 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 the rare person who does

not get a little teaiy-eyed when Old Teller dies.'

10 Stttoww.austinrtscK&co7n/uidex.ktmI (last visited Apr. 8,2004).

.12

11 &zyw.strrtcedQg3,c>rgM&vs/dogtvaty20Q4Jitm (last vidteii Apx- 8,2004).

12 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.13 .

U r a , we follow Heiligmann and reject Schuster's ^ tempt to expand "intrmsic value" damages to embrace the subjective value

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).

17 IS 19 20 Additionally, even if Parras or other more recent supreme court decisions could be construed as broadening

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 market

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 tha i

the dog's replacement value was $500 .^

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 "intern ric value" 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, we 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 mete 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). We 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&i£uecfoier, 886 S.W.2d 368.

Lost wages in this case also have too attenuated a' connection to Petco's conduct to be recoverable under her 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.' They 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 be 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 too • remote to be fairly compensable. We reverse Schuster's award for lost wages.

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Petco Animal Supplied, Inc. v. SOu-ster, 144 S.W.3d 554 (2004}

Exemplary damages

Pefco asserts fo its third tesw that the district t o u r t improperly awarded Sdmster eseraplary damages. As to h e r tort da im, Petco urges there is no evidence by which any grossly negligent condoctby iadivlduaJ, employees can he attributed to Petco. Ai to Schnstcr's breach of contract claim, Petco argues that exemplary damages are no t recoverable for a breach of cont rac t We agree. Again, we apply a legal snffldency s t anda rd to the r eco rd to determine whether exemplary damages were proper . See Wal-Mart Storei? Ine^ 121 S.W.3d a t 739.

I n order for exemplary damages to have been proper in this case, Schuster wonld h a r e h a d to have ehown b y clear and convincing evidence that the ha rm that she suffered was camed by f r a u d or malice on t h e p a r t of Petco . Tex. C f r . Prac. St Kerd-Corie Ann. § 41.003 CWest 1997). Fnr the r , punitive or exemplary damages m a y b e recovered against a corporatioa only if the grossly negligent act is the 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, then it mns t h a v e been previously authorized or subsequently mns t be approved by the 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 10 ,23 (Tex.1994)) ("A corporat ion i s liable for exemplary damages if it authorizes or rat if ies an agent's gross negligence o r if i t is grossly negligent in 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. Giffbrd-HiBdCv, 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.

*567 21 22 Schuster asserts that Petco approved the action of the negligent employes when i t had its employees search 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 no evidence in the record that the employees were searefciog for Schuster's dog under the directzoa of Petco; the employees m a y have been seardnag f o r Licorice on thedr own accord.

Schuster also offered internet printouts f rom various organizations accusing Petco of generally treating the animals it sells inhumanely and that its employees are poorly trained in animal maintenance. Ib i s evidence is legally insufficient to show, however, that the Petco employees involved in 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 for ty-five 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 the attonsay's fees awarded is a question of fact and most be supported .by the evidence. See Grace v. Duke, 54 S.W.3d 338, 3 4 4 (Tex App.-Austin 2001,no pet) . Clear, direct, anduneontroverted evidence of attorney's fees is taken as true as a matter of l aw . See id. Tlus supreme couithas stated eight factois that a factfinder should consider when detennining the teajjonableness of a f ee :

Wefi t tawNsxf© 2 0 1 0 Thomson Reuters , No clairn to original U.S. Govemrnerrt Works. 9

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BDUDLOCHE PAGE 37

Peteo Anfmal Supplies, Inc. v. Schuster, 144 S.Wdd 554 (2004)

(1) the time and labor required, die novelty and difficulty of the qaestions involved, and the skill required to pe r fona the legal service properly;

(2) the likelihood—that 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 by the client or by 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 be considered in 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 SI 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. We 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 1

we view Texas law as fairly straightforward on tins issue, we cote that this subject has bees 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 by 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 may 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.17 See Tatieton State University v. K.A, Spa/la Contractor, Jru:,, 695 S.W.2d 362 (TexApp.-Waco 1985, wi i t refdn. 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

CONCLUSION

We reverse the district court's award for mental anguish damages, counseling costs," 'intrinsic value' loss of companionship," lost wages and exemplary damages. We otherwise affirm the district court's judgment

End t>f Ihttuinent d 2010 ThttiKMl RDuftrStNo ckuin to origutsl U.5, OdvennOttlt Wotfcs.

Iflfes&awNext © 2010 T h o m s o n R e u t e r s . No claim to original U.S. Government Works. 10

t'HF

PAGE 38 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 5 : 5 9 81733G0199

ir it jrp. mftRMrfcmS'TY (

Cause No. 09-75521-1 M DEE 30 PfiISi 35

KATHRYN AKD JEREMY MEDLEN § IN THE COUNTY COTOT AT LAW 8Y_ §

§ § NUMBER ONE y.

§ § § ' T A R R A N T COUNTY, T E X A S KEAOTMENEEEE

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 St3 Fort Worth, Texas 76119-

Jniisdjctioji and Venue

5. This court has jurisdictioa over this cause under Section 25.003 of the Texas Govemcaent

scssr-* Ot-tte *» *

PAGE 39 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 I B : 5 9 8173360199

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 Mm-

b. Ordering the TdH.ing of Avery when they knew or should have known that Avery's

owners were coining to reclaim him.

O k 7

PAGE 40 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 I S : 5 9 9173360199

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

OLijf {

PAGE 41 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

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:, t A i v

RAND. State B; 1800 Norwood Dr., Suite 100 ' Hurst, Texas 76054 Telephone: 817-232-3868 Fax: 817-268-1563

}R 'i

Email: randY@tumenrntf&n?i(rr-nm

ATTORNEY iFOR PLAINTIFFS

Vkl

PAGE 42 MASON 8e BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

CERTIFICATE OF SERVICE

I fesreby certify that a true and correct copy of ihe foregoing iiistniment has been served upon the Attomey of Record of all parties "to the above^entitled and mmabored ca ise in aoooidance with TEX. R. CTV. P. 21a, on this fOq^y of VNa M w i k n ' A , 2 0 0 3 by the following methods

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

L rarawTi RA

THOMAS

0 S 0

PAGE 43 MASON & BOUDLOCHE 0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199

OFFICER/AUTHORIZED PERSON RETURN , 20 at_

• (State) on the!.

Mm and executed the same

: day of Rece' T. on the day of

i County of xx at 20 M., by deKvering to .at

: 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 the late and service marked thereon.

.Sheriff/ Constable (Authorized Person)

. County, Texas

Deputy (If Applicable)

"otal Service Fees:

By

'UBSCRIBED AND SWORN TO BEFORE ME on the. " ertify which -witness my hand and official seal.

20. day of to

Notary Public in and for

j State. My Corrmtssioa expires :ounty,..

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 No . : 2357322 Paper No.: 002 Party No. : 004 Agency : ATY Agency Name ; ATTORNEY SERVER

ar7

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173380199 MASQN & BOUDLOCHE PAGE 44

ORIGINAL CITATION CAUSE NO: 2 0 0 9 - 0 7 5 5 2 M

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 SUITE 100 1B00 NORWOOD

HURST, TX 76054

***** 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 hand 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. W^ath^zTord St., Rooib 250/*) FortWoT^iy^CXs,976196-04 (61 / ' j .

:S/^ 9: 1 A ks SSf «

g -• >-•rz w BY: ROBBIE ARBOR, Deputy

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 45 • D e c J I . 2011) 5 : 1 7 1 No. 6 2 3 B P. 3

Cans«No. OP-7S521-1

KATHRYK AM) JEREMY MEDLEN § • IN THE COUNTY COURT AT LAW § § § NUMBER ONE v, § § § TARRANT COUNTY, TEXAS KEANE MENS3EE

PLAINTIFFS SECOND AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Katbrya and Jeremy Mcdlenj Plaintiffs, file this 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 giving rise to the claim occutred in Tarmt County,

EXHIBtr

o-fb

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON 8 BOUDLOCHE PAGE 46

No, 6 2 3 8 P. 4 D e c . 3 1 . 2 0 1 0 h\m

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 prohibited from euthanizing

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

OJH

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 47 D e c . 3 1 . ' 2 0 1 0 9 : i 7 A « ' N o . 6 2 3 8 P. b

Avery's ovmers were.coming to leclgdm hiw,

c. Failing to follow Animal ControTs rules, policdcs," and procedures wHoIi prohibited

Avery from being 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

U-By; RANI State Bar No). 20i

oxr

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 48

On.31. 2010 9 : M No.MUU y. D

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 by the following method:

2010,

personal delivery telephonic document transfer (fax) certified mail courier receipted delivery

Via Facsimilei S17.336.0199 Paul Boudloche Mason & Bondlochej LXJ 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.

T H O M A S W , M C K E N Z I E

TAB 9 Order on Carla Strickland's

Special Exceptions to Plaintiff's Second Amended

Petition

0 2 / 0 1 / 2 0 1 2 1 6 : 5 9 8173360199 MASON & BOUDLOCHE PAGE 52

• • . CAUSE NO. 2009-75521-1 ' •;

' JCATHRYN AND IBIffilvirYMEDLEN •IN THE COUNTY COURT'

. Plaintifis, • §

' • AT LAW NO. 1 § v.

CARIA STRICKLAND'

TARRANT COUNTY, TEXAS Defendant

ORDER ON CAKLA STRICKLAND'S SPECIAL EXCEPTIONS TO PLAINTIFFS' SECOND AMENDED PETmON

ON TOES DAY 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.

r

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 Presiding-

CAUSE NO.' 2009-75521'1; Kaihryn and Jeremy M&dlen KKeaneMentfee, ORDER ON CARLA STRICKLAM)'S • • SPECIAL EXCErciCtiNS TO PLAINTIFFS' SECONP AMENDED PEHTIQN Pagelofl

• • ' • ' ; : • ' ^ ' '

• , • • ' . • , • •, * t ' .

'•» ' 't '

' ' .

• . ^ •