On November 3, 2011, the 2nd Court of Appeals in Fort Worth issued an opinion in Randy Turner’s case that would give dog owners the ability to recover sentimental value damages when their dog is killed.
The story has been featured in Texas Lawyer and the Star-Telegram.
Read the court’s opinion below:
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00105-CV
KATHRYN AND JEREMY MEDLEN APPELLANTS
V.
CARLA STRICKLAND APPELLEE
———-
FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
———-
OPINION
———-
Appellants Kathryn and Jeremy Medlen appeal the dismissal of their suit
against Appellee Carla Strickland for the death of their dog. We will reverse and
remand the case to the trial court.
Background Facts
On or about June 2, 2009, the Medlens‘ dog, Avery, escaped from their
backyard and was picked up by animal control. Jeremy went to the animal
shelter to retrieve Avery but did not have enough money with him to pay the fees.
He was told that he could return for the dog on June 10, and a ―hold for owner‖ 2
tag was placed on Avery‘s cage, notifying employees that the dog was not to be
euthanized. On June 6, Strickland, a shelter employee, made a list of animals
that would be euthanized the following day. She put Avery on the list, contrary to
the ―hold for owner‖ tag. Avery was put down the next day. When the Medlens
returned for the dog a few days later, they learned of his fate.
The Medlens sued Strickland, alleging that her negligence proximately
caused Avery‘s death.
1
They sued for Avery‘s ―sentimental or intrinsic value‖
because he had little or no market value and was irreplaceable. Strickland
specially excepted to the Medlens‘ claim for intrinsic value damages on the
grounds that such damages are not recoverable for the death of a dog. The trial
judge granted the special exception and ordered the Medlens to amend their
pleadings to ―state a claim for damages recognized at law.‖ The Medlens filed an
amended petition but reasserted that they were seeking damages for Avery‘s
―intrinsic value‖ only. Strickland specially excepted again, and the trial judge
dismissed the lawsuit. The Medlens appealed.
Discussion
The Medlens‘ sole issue on appeal is whether a party can recover intrinsic
or sentimental damages for the loss of a dog. In issues that turn on a pure
question of law, we do not defer to the legal determinations of the trial court but
instead apply a de novo standard of review. El Paso Natural Gas Co. v. Minco
1
The Medlens also sued another employee of animal control, whom they later
nonsuited. He is not a party to this appeal.3
Oil & Gas, Inc., 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 of the personal property. City of Tyler
v. Likes, 962 S.W.2d 489, 497 (Tex. 1997); Porras v. Craig, 675 S.W.2d 503, 506
(Tex. 1984); Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 304–05 (Tex.
1963). Dogs are personal property under Texas law. Arrington v. Arrington, 613
S.W.2d 565, 569 (Tex. Civ. App.—Fort Worth 1981, no writ). Therefore, the
Medlens argue that they should be able to recover the intrinsic value of their dog.
Strickland contends that under an 1891 supreme court case, dogs are treated
differently under the law than other personal property. See Heiligmann v. Rose,
81 Tex. 222, 16 S.W. 931 (Tex. 1891). For dogs, a party can only recover the
market value, if there is any, or a special or pecuniary value determined by the
usefulness or services of the dog. Id. at 932. Strickland argues that Heiligmann
prohibits consideration of the sentimental value of the animal in determining its
―usefulness‖ to the owner.
In Heiligmann, the trial court awarded damages to the appellees after three
of their dogs were maliciously poisoned by Heiligmann. Id. at 931. The dogs
―were of a fine breed, and well trained‖; one of the dogs used different barks to
signal to appellees whether an approaching person was a man, woman, or child.
Id. at 932. One of the appellees testified that the dogs could have been sold for
$5 each, but that she would not have been willing to part with them for $50 4
apiece. Id. Heiligmann argued that there was no evidence presented supporting
a market or pecuniary value of the dogs or that their use or service was valuable
to their owner. Id. The court upheld the damages award, holding that the value
of a dog may be determined by ―either a market value, if the dog has any, or
some special or pecuniary value to the owner, that may be ascertained by
reference to the usefulness and services of the dog.‖ Id. In that case, ―the
evidence [was] ample showing the usefulness and services of the dogs, and that
they were of special value to the owner.‖ Id. The court reasoned that the jury
could infer the value of the dogs ―when the owner, by evidence, fixes some
amount upon which they could form a basis.‖ Id.
The Texas Supreme Court has not dealt directly with the value of a lost pet
in the 120 years since Heiligmann, but in more recent cases, it has explicitly held
that where personal property has little or no market value, and its main value is in
sentiment, damages may be awarded based on this intrinsic or sentimental
value. See Likes, 962 S.W.2d at 497 (reaffirming recovery of sentimental value
for items that have little or no market value, such as family correspondence,
family photographs, and keepsakes); Porras, 675 S.W.2d at 506 (adopting
―intrinsic value rule‖ and awarding intrinsic value for the loss of shade or
ornamental trees); Brown, 369 S.W.2d at 304–05 (awarding sentimental
damages for loss of items such as wedding veil, shoes, point lace collar, watch,
and slumber spreads). The Medlens contend that the notion that the Texas
Supreme Court intended to exclude dogs from the intrinsic value rule appears 5
nowhere in these subsequent opinions. They argue that to treat a dog differently
than all other personal property would be irrational.
Strickland points out that several courts of appeals‘ decisions have
reaffirmed Heiligmann by holding that damages for the loss of a dog can only be
based on market value or a value ascertained from its usefulness or services, not
companionship or sentimental value. See Petco Animal Supplies, Inc. v.
Schuster, 144 S.W.3d 554 (Tex. App.—Austin 2004, no pet.) (interpreting
Heiligmann to mean that special or pecuniary value can only be derived solely
from the dog‘s usefulness or services, not from companionship or other
sentimental considerations); Zeid v. Pearce, 953 S.W.2d 368 (Tex. App.—El Paso
1997, no writ) (denying damages for pain and suffering or mental anguish for the
loss of a pet); Bueckner v. Hamel, 886 S.W.2d 368 (Tex. App.—Houston [1st
Dist.] 1994, writ denied) (using expected stud fees to determine pecuniary value);
Young’s Bus Lines, Inc. v. Redmon, 43 S.W.2d 266 (Tex. Civ. App.—Beaumont
1931, no writ) (stating that peculiar or sentimental value of a dog or what it was
worth to its owner is not admissible).
Redmon was decided more than thirty years before the Texas Supreme
Court held in Brown that sentimental damages could be awarded for personal
property. We disagree with Redmon regarding the sentimental value of a dog to
its owner based on later supreme court decisions.
We also disagree with Strickland‘s position that Bueckner supports the idea
that sentimental value is not recoverable. In that case, the plaintiff sued the 6
defendant for shooting two of his dogs. Bueckner, 886 S.W.2d at 370. The trial
court determined that the dogs had a market value, pecuniary value, intrinsic
value as companions, and special value as loved pets, and it awarded the
plaintiff $1,825 in ―actual damages.‖ Id. The defendant appealed, arguing that
the court had erred by basing the award on the value of the puppies that the
dogs would have produced in the future. Id. The appeals court agreed that the
value of the dogs themselves, not the value of their unborn puppies, must be
determined, but held that the evidence was both legally and factually sufficient to
support the trial court‘s finding of actual damages ―based on the pecuniary value
of the dogs to the [plaintiff].‖ Id. at 371–72. In doing so, the court considered the
breed of the dogs and their owner‘s plan to use them for breeding in the future.
Id. As the concurrence in Bueckner points out, the defendant did not challenge
the trial court‘s findings of fact that addressed the intrinsic value of the pets. Id.
at 373 (Andell, J., concurring). The majority thus did not address that issue.
Justice Andell wrote separately only to address an alternative basis for the award
on which he had strong feelings. See id. at 377 (―I consider [pets] to belong to a
unique category of ‗property‘ that neither statutory law nor caselaw has yet
recognized.‖).
Zeid also does not support Strickland‘s argument that sentimental value is
not recoverable. In Zeid, plaintiffs sought to recover pain and suffering and
mental anguish damages for the loss of their dog. 953 S.W.2d at 369. The court
of appeals affirmed the trial court‘s ruling that pain and suffering and mental 7
anguish cannot be recovered for the loss of a pet. Id. The court restated the rule
from Heiligmann, allowing for either market value or special value based on the
dog‘s usefulness or services. Id. The court discussed Porras, awarding intrinsic
value for shade trees, and Bueckner, but it found these cases unhelpful because
the plaintiff never pleaded special or intrinsic value. Id. at 369–70. As with
Bueckner, the court in Zeid was silent on the issue of companionship and
sentimental value.
In Petco, the plaintiff was awarded damages, including lost wages, mental
anguish, emotional distress, and intrinsic value, for loss of companionship after
her dog escaped from a groomer and was run over. 144 S.W.3d at 557. Petco
appealed, asserting that as a matter of law the trial court could not award lost
wages, mental anguish, counseling costs, and loss of companionship damages
for the loss of a dog. Id. at 560. The court of appeals agreed, citing Heiligmann‘s
rule of either market value or some special or pecuniary value based on
usefulness or services of the dog. Id. at 561. The court went on to state,
―Heiligmann makes clear that the ‗special or pecuniary value‘ of a dog to its
owner refers solely to economic value derived from the dog‘s usefulness and
services, not value attributed to companionship or other sentimental
considerations.‖ Id. Intrinsic value for loss of companionship was among the
damages that were reversed. Id. at 565.8
We respectfully disagree with our sister court‘s interpretation of Heiligmann
and its holding in Petco regarding intrinsic value for loss of companionship.
Heiligmann does not say that special value is derived ―solely‖ from usefulness or
services and that it does not include companionship or sentimental value.
Heiligmann says that the value of a dog ―may be‖ ascertained from usefulness or
services. 16 S.W. at 932. And nowhere does Heiligmann state what should be
considered in assessing the usefulness or services of a dog. It certainly did not
rule out companionship or sentimental value. The Heiligmann opinion never
uses the term ―intrinsic value‖ or ―sentimental value‖; therefore, the opinion
cannot preclude an award of damages never specifically discussed. The
Heiligmann court reasoned,
The law recognizes a property in dogs, and for a trespass and
infraction of this right the law gives the owner his remedy. The
wrong-doer cannot escape the consequences of his acts by saying,
‗You have suffered no damages,‘ for the law implies that some
damages result from every illegal trespass or invasion of another‘s
rights.
Id. at 225–26.
Strickland argues that the Medlens ―are asking this Court of
Appeals to overturn one hundred and twenty years of law‖ and that we are ―not
empowered to make such a ruling.‖ First of all, there is a difference between
overruling one hundred and twenty years of law and overruling one one-hundredand-twenty-year-old case. Second, we are doing neither of those things. We are
duty-bound to interpret Heiligmann in light of subsequent supreme court 9
decisions which have developed and refined the law concerning intrinsic value
damages.
The Heiligmann court still stated that the dogs ―were of a special value to
the owner.‖ Id. at 226. That special value must be more than the market value of
a well-trained dog. A dog‘s ability to use certain barks to alert its owner to the
gender and general age of an approaching visitor would surely be included in its
price if it were sold. We believe that the special value alluded to by the
Heiligmann court may be derived from the attachment that an owner feels for his
pet.
Strickland attempts to distinguish this case from the supreme court
decisions allowing sentimental damages for personal property by arguing that
sentimental value is only recoverable for heirlooms or property that takes a long
time to replace, such as trees. According to Strickland‘s position, intrinsic
damages could be awarded for a sentimental photograph of a family and its dog,
but not for the dog itself. Strickland‘s position might also allow intrinsic damages
for a pet that had been inherited from a loved one, but not a pet that had been
purchased. We find little reason in this argument and do not believe that it
reflects the attachment owners have to their beloved family pets.
Finally, as Strickland has admitted, Texas law has changed greatly since
1891. Heiligmann was decided at a time when Texas law did not allow recovery
for the sentimental value of any personal property. See, e.g., Mo., Kan. & Tex.
Ry. Co. of Tex. v. Dement, 115 S.W. 635, 637 (Tex. Civ. App.––Dallas 1909, no 10
writ) (―It seems to be well settled in this state that the measure of damages for
the loss of articles which have no market value, and which cannot be replaced or
reproduced, is the actual loss in money sustained by the owner by reason of his
being deprived of such articles, and not any fanciful price that he might, for
special reasons, place upon them.‖). In that way, Heiligmann was ahead of its
time by noting that the dogs ―were of special value to the owner.‖ 16 S.W. at 932.
As we noted above, sentimental damages may now be recovered for the loss or
destruction of all types of personal property. See Likes, 962 S.W.2d at 497;
Porras, 675 S.W.2d at 506; Brown, 369 S.W.2d at 304–05. Because of the
special position pets hold in their family, we see no reason why existing law
should not be interpreted to allow recovery in the loss of a pet at least to the
same extent as any other personal property. Cf. Bueckner, 886 S.W.2d at 377–
78 (Andell, J., concurring) (―Society has long since moved beyond the untenable
Cartesian view that animals are unfeeling automatons and, hence, mere
property. The law should reflect society‘s recognition that animals are sentient
and emotive beings that are capable of providing companionship to the humans
with whom they live.‖). Dogs are unconditionally devoted to their owners. Today,
we interpret timeworn supreme court law in light of subsequent supreme court
law to acknowledge that the special value of ―man‘s best friend‖ should be
protected.
Because an owner may be awarded damages based on the sentimental
value of lost personal property, and because dogs are personal property, the trial 11
court erred in dismissing the Medlens‘ action against Strickland. We sustain the
Medlens‘ sole issue on appeal.
Strickland raises a cross-point, asking that the case be remanded if
reversed, so that she may file a motion to dismiss on grounds of governmental
immunity. Because we have sustained the Medlens‘ sole issue and are
remanding the case to the trial court on that basis, we do not need to reach
Strickland‘s cross-point seeking the same relief of remand. See Tex. R. App. P.
38.2(b)(2).
Conclusion
Having sustained the Medlens‘ sole issue on appeal, and because we do
not need to reach Strickland‘s cross-point, we reverse the judgment of the trial
court and remand the case for further proceedings consistent with this opinion.
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: November 3, 2011