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

HAWTHORNE CLERK

No. 12-0047
________________________________________________________________________ IN THE SUPREME COURT OF TEXAS CARLA STRICKLAND, Petitioner, v. KATHRYN AND JEREMY MEDLEN, Respondents. _______________________________________________________________________ On Petition for Review from the Second Court of Appeals at Fort Worth, Texas No. 02-11-00105-CV

AMENDED PETITION FOR REVIEW

Paul Boudloche State Bar No. 02694700 paulboudloche@mbllp.net MASON & BOUDLOCHE, LLP 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 76116-5544 Telephone: 817-338-0639 Telecopier: 817-336-0199

John H. Cayce, Jr. State Bar No. 04035650 john.cayce@kellyhart.com Alison M. Rowe State Bar No. 24032717 alison.rowe@kellyhart.com KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280

COUNSEL FOR PETITIONER

INDENTITY OF PARTIES AND COUNSEL Petitioner: Counsel for Petitioner: Carla Strickland John H. Cayce, Jr. (lead appellate counsel) State Bar No. 04035650 john.cayce@kellyhart.com Alison M. Rowe State Bar No. 24032717 alison.rowe@kellyhart.com KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280 Appellate Counsel Paul Boudloche State Bar No. 02694700 paulboudloche@mbllp.net MASON & BOUDLOCHE, LLP 6115 Camp Bowie Blvd., Suite 154 Fort Worth, Texas 76116-5544 Telephone: 817-338-0639 Telecopier: 817-336-0199 Trial and Appellate Counsel

Respondents: Counsel for Respondents:

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

Amended Petition for Review

Page ii

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

B.

II.

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

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

Amended Petition for Review

Page iii

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

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

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

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

............... App............... xii......................... Oct......................................001(a)(2) .......... & Rem.) Cases Page Sherman v..................... v......... 195 P. 43 S............ App.M.......... 35 P.. 2 Whittlesey v...................... 2 Smith v.............................................................. Inc..3d 539 (Wash...... 2009)..... 2010) ............... Lied Animal Shelter....................... Gov’t Code § 22... Kissinger............................ 14 Wilcox v........001(a)(6) ......... no writ) .......... App......... Animal Clinic............................ 7......... 1993) . 2 Soucek v....................INDEX OF AUTHORITIES (cont...................... 2 Wright v............................... 503 N. Inc. 953 S. 7 Zeid v........ x. 2 Thomson v....) ...... 4 Other Authorities BLACK’S LAW DICTIONARY (9th ed..... Gov’t Code § 22......................... Ct...............2d 665 (Tex.. Univ......... Miller..W. App........ 10 Amended Petition for Review Page viii ........ 2 Young’s Bus Lines............ 14..................W..................... 1934)...............2d 368 (Tex...... x Tex....... 2008) ...... 1978) ................................................ Pearce....2d 153 (Minn. Butt’s Drug Stores.................... x Tex.. no pet.................3d 1154 (La......... 619 S...W..... Edison......... 30 So................. Banham...........W......................................... 12 Statutes Tex........106(f)................ Prac......................... Inc...............W........ Code § 101...—Beaumont 1931.2d 978 (N....2d 797 (1981).......................................... Redmon..................... 572 S........ x....... 13...... Civ...... Ct... 2009)........ Nev.................. 2009 WL 3303733 (D..................................2d 266 (Tex........................—El Paso 1997...............

App. at *5. The court denied Appellee’s Motion for Reconsideration En Banc on December 1. 3. Texas Reversed and remanded. 2011) (Gabriel. No. The plaintiffs. [CR at 28]. J.. Carla Strickland. Fort Worth.). joined by Walker. and ordered plaintiffs to replead “a claim for damages recognized at law. 2011. and Meier. Defendant/Appellee/Petitioner: Carla Strickland Plaintiff/Appellant/Respondents: Kathryn and Jeremy Medlen Court of Appeals: Appellate Court Disposition: Second Court of Appeals. sued defendant. Kathryn and Jeremy Medlen. alleging that her negligence caused the death of their dog..” [CR at 25]. The court of appeals held that because dogs are personal property.STATEMENT OF THE CASE Nature of the Case: This negligence case is about whether the owners of a dog may recover intangible loss of companionship damages in the form of intrinsic or sentimental value property damages for the wrongful death of their dog. Strickland. [CR at 60]. J.—Fort Worth. Medlen v. Id. Strickland specially excepted again. No further motions for rehearing or en banc reconsideration are pending in the court of appeals at this time. J. Nov. and the trial court dismissed the Medlens’ lawsuit with prejudice. The trial court granted Strickland’s special exception to the plaintiffs’ claim for “intrinsic or sentimental value” damages [CR at 4]. Trial Court Disposition: Parties on Appeal: Amended Petition for Review Page ix . dog owners may be awarded damages for the loss of companionship of their dog in the form of intrinsic or sentimental value property damages. 02-1100105-CV. 2011 WL 5247375 (Tex. The Medlens filed an amended petition alleging a claim for “intrinsic value” damages.

Inc. no pet.W. no writ). Schuster. 16 S. App. Young’s Bus Lines. No. In addition to conflicts with this Court’s decisions. Low.).—El Paso 1997. the court of appeals’ holding that a plaintiff may recover intangible loss of companionship damages in the form of intrinsic or sentimental value property damages directly conflicts with a prior decision of this Court holding that the “true rule” for determining the value of dogs is “either a market value. v. Rose. First. App.2d 266 (Tex.W.—Austin 2004. writ denied).W. v.001(a)(2) and (a)(6). App.STATEMENT OF JURISDICTION Jurisdiction is proper under Texas Government Code §§ 22. in which the Court held that intrinsic value type damages exclude sentimental considerations.W. Moreover. Aug. App. 1891).W. See Mireles v. Co. Inc.2d 368 (Tex. The court of appeals’ opinion also conflicts with this Court’s decision in Gulf States Util. Mormon. 222. if the dog has any. App. Hamel. 79 S. Petco Animal Supplies. Bueckner v. Zeid v. Amended Petition for Review The court of appeals’ decision creates a new and Page x .). 931 (Tex. 144 S. 886 S. the issue presented by this petition is important to the jurisprudence and public policy of the state. 2010 WL 3059241 (Tex.W. Redmon. 953 S. that may be ascertained by reference to the usefulness and services of the dog. or some special or pecuniary value to the owner. 2002).2d 368 (Tex. v.” Heiligmann v.— Austin.—Beaumont 1931. Pearce. 81 Tex. 2010).— Houston [1st] 1994. the court of appeals’ opinion conflicts with the decisions of five sister courts that have followed the precedent of Heiligmann and held damages for negligent destruction of a dog are limited to the dog’s market or pecuniary value.3d 561 (Tex. 6. 03-09-00451-CV.3d 554 (Tex. no pet. 43 S.

ultimately affecting the quality and costs of pet services to the detriment of pets and their owners.independent cause of action – loss of companionship for the wrongful death of a pet. Although dogs are beloved companions. While the Court may be understandably sympathetic to the plaintiffs’ loss of pet companionship. This sweeping change in animal law gives pet owners the potential for a greater damages recovery for the loss of their pets than is available for the loss of a relative or close human friend. Amended Petition for Review Page xi . To do so would allow damage claims with no sensible or just stopping point. it should defer to the Texas Legislature to create a remedy for it. as well as other business interests in the state. they should not be placed into this intimate familial category as a matter of public policy.

Is a plaintiff entitled to recover damages for loss of companionship in the form of intrinsic or sentimental value damages for the wrongful death of a dog? 2. Did the court of appeals err in holding that the plaintiffs are entitled to recover intrinsic or sentimental value damages for the negligent destruction of their dog? OTHER ISSUES (Not Briefed) 1. when the defendant was a government employee acting within the general scope of her employment at the time of the incident in question? 2. Did the court of appeals err in addressing the issue of whether the plaintiffs are entitled to recover “companionship or sentimental value” damages when the plaintiffs only alleged a claim for “intrinsic value” damages? Amended Petition for Review Page xii .106(f) of the Texas Civil Practice & Remedies Code.ISSUES PRESENTED 1. Did governmental or official immunity bar the court of appeals from exercising its jurisdiction to decide the merits of plaintiffs’ appeal under Section 101.

at 932. if the dog has any. however. For sound policy reasons. but it is contrary to the decisions of a majority of the courts in the nation. that may be ascertained by reference to the usefulness and services of the dog.INTRODUCTION Over 120 years ago. courts in thirty-five other states have refused to recognize a damage claim for negligent loss of a pet based an owner’s emotional Amended Petition for Review Page 1 . Rather than follow the wisdom of Heiligmann. 16 S. or some special or pecuniary value to the owner. Until the court of appeals’ decision in this case. no Texas court had refused to follow Heiligmann and allow recovery of non-economic damages for the negligent destruction of a dog based solely on the subjective value that the dog’s owner places on companionship or the owner’s sentiment. The court of appeals’ decision not only represents a sharp departure from the established law of this state.” Heiligmann. the court of appeals has molded Texas law as it sees fit and created a new loss of companionship cause of action for the wrongful death of a pet dog – exposing negligent defendants to the risk of extraordinary and potentially limitless damage claims.W. this Court held that the “true rule” for determining the value of a dog is “either a market value.

2d 978 (N.E. App. 1198 (Fla.2d 153 (Minn. Ct. App.3d 5. Soucek v. 1999). 618 S. City of Hartford.2d 795 (Wis. Ct. 627 N. 791 A. Kissinger. 2006).2d 530 (N. Ct. Invisible Fence of Dayton. Univ. 2001). 1934). Bales v. Fox.2d 368 (W. 1987). 97 Misc. 2004). Avery. 113 S. Ct. 695 P.E. Naples v. 27 P. 595 N. 131 P. App. not by an intermediate appellate court. Wilcox v. 786 N. Inc. 2009 WL 926945 (W. 510 N.N.3d 309. 1988). App.3d 539 (Wash. 2d 635 (La. 798 N. Ct. App. 864-65 (Pa.2d 451.E. aff’d. Super. 2d 1195. Ct. [CR at 27]. The Barkery. Ct. Kerdasha.. Crawford Dog and Cat Hosp. 992 A. App. 853 A. Ct. 2006). 30. 2006). App. Harabes v. Animal Clinic.M. 1995).E. Banham. Diamond Pet Foods. Scheele v. 2010). Dustin.. Holbrook v. McMahon v.. Whether such a potentially costly expansion of tort law is within the best interest of Texans is a matter that should be decided by this Court.2d 689 (Iowa 1996). 14.3d 1248 (Kan. Inc.S.W. 555 N. Va. App. STATEMENT OF FACTS On or about June 2. 658 A. 1287-90 (Mass. Nev. Langhofer. Ct. Oct. 314 (Alaska 2001).2d 621 (Conn. Co.2d 697 (Vt.C. Shampooch. 2008). App. 1985).2d 1276. 2009). 2005). Vetpharm. VCA Animal Hosp. Craig. 2003). Rabideau v. Amended Petition for Review Page 2 1 . Apr. Kondaurov v. Stansell.W.1 Although the courts recognize the companionship that pets provide to their owners. Carbasho v. at *3 (Del.Y. but did not have enough money with him to pay the fees. 562 S.W. Rowbotham v. Fackler v. Ct.Y. Rptr. Ct. Kaufman v. Ct. City of Racine. Brown. Div. Pacher v. 30. 3d 355 (Cal. 51 P. Myers v. Lied Animal Shelter. 2010). 2002). 2009). Judelsohn. 2009). 1278 (Idaho Ct. Ct..2d 731. Butt’s Drug Stores. 974 A. [Id.S. Daughen v. App.I. 2003). Inc. App. 2009).E. Heinrichs..2d 884 (Neb.2d 181 (Va. Gill v. 2004). Byas. 97 Cal. and a “hold for See Mitchell v. 1993). Kling v. DeJoy v.2d 912 (R. 2009). 619 S.W. Hill. Musulin. App. But see Smith v..C.W.2d 1084 (Ill. 2002). Sukaro Kennels. at *7 (D.. Edison. App.attachment to a pet.W. Civ.2d 1237 (Del. 2009).3d 185 (Ky. 503 N.D.2d 858. 539 A.3d 272 (Ariz. 1962). Kennedy v. 2000). App. 2002). Stice. Wright v.2d 1269 (Vt. escaped from their backyard and was picked up by animal control. Ct. Genetzky. Koester v. 733 (Ga. Ltd.]. 7-8 (Or.2d 1142 (N.. Ct. Ct. Maher. Super. Lockett v. 2004). 2009. App. Thomson v.2d 873 (N. 30 So. App. App. 461 (In. 1125-26 (Ohio Ct. 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. Div.J. 867 So. Meffen. 998 A. 2005).2d 209 (Mich. 777 N. 2001). 2010). 2009 WL 1163504. 146 So. Corso v. Burgess v. App. 624 N. 629 S. Kathryn and Jeremy Medlen’s dog. 011-268-05 (S. Fire Ins. Krasnecky v. Ct. Ct. Ct. App. 838 N. Mar. 1979).Y. Goodby v.2d 1121. Nichols v. Buff v.E. Super.2d 797 (1981). Lachenman v. 222 P. Dist. App. 2009 WL 3303733. No.. Ct. 35 P. Welty. Niagara Mohawk Power Corp. U. Jeremy went to the animal shelter to retrieve Avery. He was told that he could return for the dog on June 10. Preiser Animal Hosp.W. Miller. Sherman v. or the state’s legislature.E. 195 P. Jankoski v.2d 1286. Ammon v.3d 1154 (La.

and he was put down the next day. She put Avery on the list. [CR at 32-56.owner” tag was placed on Avery’s cage notifying employees that the Medlens were going to return for Avery. Strickland specially excepted again on the same grounds. the panel phrased the issue on appeal as “whether a party can recover intrinsic or sentimental damages for the loss of a dog. Although the Medlens’ amended petition does not allege a claim for sentimental value damages. [Id. The trial judge granted the special exception and ordered the Medlens to amend their pleadings to “state a claim for damages recognized at law. made a list of animals that would be euthanized the following day. and the trial judge dismissed the lawsuit. on June 6. The Medlens filed an amended petition seeking damages for Avery’s “intrinsic value. Amended Petition for Review Page 3 2 . [CR at 12-13].” Medlen. Strickland specially excepted to the Medlens’ claim for sentimental or intrinsic value damages on the grounds that such damages are not recoverable for the death of a dog.” [CR at 4]. Id. 60].].]. Relying on three decisions of this Court holding that damages for certain personal property may be based on either intrinsic or sentimental value where the For reasons not reflected in the record. When the Medlens returned for their dog a few days later. a shelter employee.”2 [CR at 28]. 2009. In the meantime. the Medlens abandoned their claim for “sentimental value” damages in their amended petition. The Medlens sued Strickland for negligence and pleaded damages for Avery’s “sentimental or intrinsic value. 2011 WL 5247375 at *1 (emphasis supplied). Carla Strickland. [Id.” [CR at 25]. The Medlens appealed. they learned of his unfortunate fate.

3d 367.2d 503. 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. sentimental considerations. at *5. 2011).106(f) of the Texas Civil Practice & Remedies Code. 675 S.” Id. Inc. Likes. Page 4 Amended Petition for Review . See Franka v.property has no market value and is irreplaceable.W. 379-85 (Tex.W. 497 (Tex.2d 489. 369 S.3 the court of appeals reasoned that because a dog is personal property the same property damages rules should apply. 1963) (announcing rules for recovery of sentimental damages). Brown v. this Court prudently limited the recoverable damages for negligent destruction of a dog under common law to pecuniary loss.. 506 (Tex.W. 4 The court of appeals reversed and remanded the case to the trial court without addressing Strickland’s cross-point asserting that the Medlens’ action is barred by immunity under Section 101. Frontier Theatres. Velasquez.4 SUMMARY OF THE ARGUMENT In Heiligmann. Heiligmann does not rule out “companionship or sentimental value” damages for negligent destruction of a dog based on “the attachment that an owner feels for his pet. Id. Rejecting the wisdom and precedent of this universally-accepted rule.W. Craig. while Heiligmann was decided at a time when Texas law did not allow recovery for the sentimental value of personal property. 1997) (discussing “special rules” for sentimental damages adopted in Brown). 1984) (adopting “intrinsic value rule”). Id. Today. This novel theory of recovery gives plaintiffs a greater remedy for the negligent death of a pet animal than 3 See City of Tyler v. 322 S. the court of appeals created a new cause of action that allows dog owners to recover for the loss of the companionship of their dogs based solely on subjective. The court concluded: Dogs are unconditionally devoted to their owners. however. at *4. Porras v. 304-05 (Tex. 962 S. The court observed that.2d 299.

HEILIGMANN AND SUBSEQUENT DECISIONS OF THIS COURT PRECLUDE THE RECOVERY OF INTRINSIC OR SENTIMENTAL VALUE PROPERTY DAMAGES FOR THE WRONGFUL DEATH OF A PET. and creates a new right to damages that will have a “snowball effect” leading to the recognition of actions for emotion-based damages to remedy the death of any living creature with which a human may bond. Minco Oil & Gas. this Court applies a de novo standard of review.W. ARGUMENT AND AUTHORITIES5 I. at 932. at 931. El Paso Natural Gas Co. The defendant complained that the evidence was insufficient to support the jury’s damages finding awarding the owner $25 for each dog. A. or some special or pecuniary value to the owner. this Court was asked to determine the correct measure of damages for the loss of three dogs which the jury found had been poisoned by the defendant. Such a result is contrary to the public policy of the state.3d 309. the Court held that the defendant’s requested charge followed the “true rule” in determining the value of dogs: “either market value. The “True Rule” of Heiligmann Limits Recovery for the Negligent Destruction of a Dog to Economic Value Damages. Inc. 312 (Tex. 1999). that may be ascertained by reference to the usefulness and services of the dog. 16 S. In the course of analyzing the evidence supporting the verdict. Based on “ample evidence showing the usefulness and 5 In issues that turn on a pure question of law.” Id.W. if the dog has any. Page 5 Amended Petition for Review .W.they have for the death of a human family member without any social justification. Heiligmann 16 S. v.. In Heiligmann. Heiligmann. 8 S.

Id. Id. at *4. at 932. see Petco. The Austin Court of Appeals interpreted Heiligmann correctly in Petco. Petco. 563 (Licorice “was with me all the Amended Petition for Review Page 6 . it is clear that the “special or pecuniary value” of a dog to its owner refers solely to economic value “ascertained by reference to the dog’s usefulness or services” – not value attributed to companionship or other sentimental considerations.” the Court found the evidence was sufficient to support the jury’s damages findings. When Heiligmann is read in its entirety. a miniature schnauzer named Licorice.W.W.000 as “‘intrinsic value’ loss of companionship” damages based on testimony that Licorice was “a friend and companion” to the owner. by implication or otherwise. the dog owner sued a pet store to recover damages that the owner allegedly suffered when her dog.services of the dogs. the only evidence referenced in the Court’s opinion regarding the dogs’ value was the dogs’ special training and one dog’s ability to alert its owner as to the gender and age of approaching visitors. There. Indeed. Heiligmann. 16 S. 144 S.W.3d at 561. The court of appeals’ analysis takes the term “special value” out of context and interprets it without reference to the economic considerations that the Heiligmann court used to define the term. The opinion makes no reference. In an effort to reconcile its novel holding with Heiligmann. This parsing of the Court’s opinion gives “special value” a much broader meaning than the Court could have reasonably contemplated. 144 S. to evidence of companionship or owner sentiment. was killed in traffic after escaping from a pet groomer. the court of appeals parsed Heiligmann’s “true rule” in a way that skewed its fundamental meaning. The trial court awarded the owner $10.3d at 557.

v.). Zeid v. at 561.” Id. App. Pearce. 953 S. Inc.”). writing for the court.W.” Id. no pet. 43 S. 2010).6 Even if this Court agrees with the Fort Worth Court of Appeals. however.—Austin 2004. and they properly deferred to this Court’s prerogative to overrule Heiligmann if the Court so chooses.W.). App. Inc. The other courts of appeals that have addressed the issue have followed the same approach and reached the same result. identified three “key principles” for which Heiligmann stands – one being that “special or pecuniary value” refers solely to economic value derived from the dog’s “usefulness or services. no pet. 144 S. 6. 2010 WL 3059241 (Tex. Thus. We went places together…. Mormon.—Austin. Schuster.3d 554 (Tex. She was a companion to me and I miss her.2d 266 (Tex. it should grant the petition to resolve the conflict created by the court’s decision 6 See Mireles v. Redmon. 03-09-00451-CV.2d 368 (Tex. 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….—Houston [1st] 1994. The court held: “As an intermediate appellate court. Petco Animal Supplies. 886 S. Aug. Page 7 Amended Petition for Review . Bueckner v. at 565. App. Young’s Bus Lines. Justice Pemberton and the Austin court got it right in Petco in more ways than one – they correctly interpreted Heiligmann as precluding loss of companionship damages in the form of intrinsic or sentimental value property damages.—El Paso 1997.—Beaumont 1931. no writ). App. No. writ denied).” Justice Pemberton. Hamel. App.W.time that I was home….W. v. Noting that Heiligmann “remains the law today. we follow Heiligmann and reject Schuster’s attempt to expand “intrinsic value” damages to embrace the subjective value that a dog’s owner places on its companionship.2d 368 (Tex.

2d at 299. and Brown. 962 S. 675 S. great grandmother. [citation omitted]. Such property is not susceptible of supply and reproduction in kind. Where such special value is greater than the market value. great. it becomes the only criterion for the assessment of damages. 369 S. In addition to its flawed interpretation of Heiligmann. Porras. and their greater value is in sentiment and not in the marketplace. 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. a pistol belonging to the owner’s grandfather. taking into consideration the feelings of the owner for such property. Id.2d at 503. and a lace collar belonging to the owner’s grandmother. the question before the Court was whether the evidence was legally sufficient to support an award of monetary damages for personal property destroyed in a fire which the Court characterized as “heirlooms.W. In such cases. a watch belonging to the owner’s great grandmother. The items included a wedding veil.”7 The Court held: It is a matter of common knowledge that items such as these generally have no market value which would adequately compensate their owner for their loss or destruction.W. In Brown. More Recent Decisions of this Court Do Not Broaden the Availability of Intrinsic or Sentimental Value Property Damages to Animal Cases. None of these decisions lend support to the court of appeals’ recognition of loss of companionship damages in the form of intrinsic or sentimental value property damages for the wrongful death of a dog. [citations omitted].W. the court of appeals erroneously interpreted three subsequent decisions of this Court as supporting its holding that “companionship or sentimental value” damages are now recoverable for the negligent destruction of a dog: Likes. at 304.and give Texas courts guidance as to what the “true rule” is for measuring the damages for loss of a dog. Amended Petition for Review Page 8 7 . shoes.2d at 489. B. and “slumber spreads” made by hand by the owner’s great.

675 S. Porras. Because their primary value is in sentiment. As the Court recognized. in part. property in the nature of an heirloom is irreplaceable and cannot be reproduced.W. where cutting down the trees does not reduce the market value of the property. it is unnecessary to allow damages based solely on the sentiment of the dog’s owner to satisfy the “fundamental rule of damages” recognized by this Court in Brown that every wrongful injury or loss be adequately and reasonably compensated. 369 S. Brown’s rules for sentimental value property damage have no application here. Moreover. virtually every dog. it is common knowledge that. Thus. at 505. is in high supply and capable of being reproduced. While an owner may develop a deep emotional bond with the dog. at 305. Id. from the defendant’s cutting down shade or ornamental trees on the owner’s property. no price paid in the marketplace could adequately compensate the owner for their loss or destruction. regardless of breed or temperament. Id.W. The same is not true for a dog.2d at 506.Brown. The Court held that in such a case. The evidence showed that the market value of the land had actually been increased by cutting down the trees. unlike heirlooms.2d at 305. most dogs have a market value that would adequately compensate the owners for their loss or destruction. The court of appeals’ reliance on Porras to support the conclusion that sentimentbased damages are recoverable for the negligent destruction of a dog is also misplaced. Porras involved a suit for permanent damage to land resulting. the landowner is entitled to recover damages for the value of the trees under “the intrinsic Amended Petition for Review Page 9 .

566 (Tex.3d. Fant. no writ). See International-Great N.2d 808. Gulf States. landowner cannot recover intrinsic value absent finding the property had no market value). 812-13 (1954) (in condemnation case. as determined by the value to the owner. inherent. 328-29 (Tex. Civ. v. not depending upon accident. 2009). App. intrinsic value damages refer to the inherent value of the property itself. – Corpus Christi. as well as any other reasonably relevant facts. Casey. Hamilton v. Cannizzo.W. Co. Gonzalez. 79 S. Civ. As Porras illustrates. Pertaining to the essential nature of a thing. Murray. 619 S. 46 S. Morrison. 1981. sentiment and other “fanciful” considerations are excluded from intrinsic value property damages.3d 561. Co.W.2d 326.W. Lucas v.W. 704 (Tex. 590 S. Amended Petition for Review Page 10 . 1963) (“the measure of damages that should be applied … is the actual worth or values of the articles to the Accord Miloszar v.” BLACK’S LAW DICTIONARY (9th ed. – Texarkana 1964. no writ).value rule. App.W.2d 669. at 505.2d at 505.W. inherent and essential value of a thing. v. 381 S. Security Nat’l Ins. opinions of qualified witnesses. 675 S. no writ).W. Chance. They are recoverable only where the property is shown to have neither market value nor replacement value. Civ. including the owner. the use to which the property was put.2d 190 (Tex. App. In determining the property’s value to the owner. 1932. v. unlike sentimental value property damages recognized in Brown. 422 S.2d 283 (Tex. The Court further held that the property owner could opine about the trees’ value to him.R. – Austin 1967. 2002). Com. 9 8 “Intrinsic” is defined as “internal. Porras. 324. 286 S. 369 S.W. see also Crisp v.W. – San Antonio 1956. no writ). App. at 566 (citing Allstate Ins. Low. See Gulf States Util. 79 S.9 Id. 670 (Tex. “Intrinsic value” is defined as “the true. Co. holding approved).2d 703. v.R. Moran Corp.W.2d 324 (Tex. Civ. 1979)).. 153 Tex. at 506. 267 S. place or person but same everywhere and to everyone. the cost of replacement. Importantly.”8 Id. App.” Id.W.2d 495 (Tex. the trier of fact may consider economic factors such as the original cost. City of Austin v.

not the inherent value of their dog itself. at 497. [Brief of Appellants at 5]. and erroneously assumed that intrinsic and sentimental value are the same. The court of appeals glossed over this distinction. The rules governing intrinsic value damages do not apply in this case because the Medlens are seeking damages based on companionship and sentimental considerations. the Court reaffirmed the general rule that the measure of damage for personal property is the property’s market value or the cost of repairing or replacing it. 2011 WL 5247375 at *4 (“The Texas Supreme Court…has explicitly held that where personal property has little or no market value. The Court also discussed the “special rules” recognized in 10 This confusion is. Even assuming owner sentiment may be considered in assessing the intrinsic value of property. The relevant question in Likes was whether mental anguish damages are recoverable for negligent property damage. perhaps. Page 11 Amended Petition for Review . damages may be awarded based on the intrinsic or sentimental value. and its main value is in sentiment. There is no evidence in this Court’s decisions that the Court uses the two terms interchangeably. the court of appeals erred in allowing the Medlens to recover damages for the negligent destruction of their dog based on sentimental considerations for the reasons discussed elsewhere in this petition. As a result. Holding that such damages were not compensable under Texas law.10 Medlen. the court of appeals erred in holding that sentimental considerations may be taken into account in determining the intrinsic value of personal property.”). Id.owner for use in the condition they were in at the time of the fire excluding any fanciful or sentimental considerations”). understandable given that fact that the Medlens mistakenly represented that this Court and others have used the terms “intrinsic value” and “sentimental value” interchangeably.

” Petco. the Court explained that the owner’s feelings help to determine the economic value of the destroyed item for purposes of property damages.W. not the owner’s pain and suffering or emotional attachment to the thing. Id. however. the owner’s feelings are relevant to determining the economic value of the thing destroyed.3d at 563. In holding otherwise. “Because a plaintiff whose property has been harmed can ordinarily recover fully for that loss through economic damages.. Zeid 953 S.W. or any other legal entity where loss would ordinarily give rise to personal injury damages. Thus.2d at 369-70 (both distinguishing mental anguish and pain and suffering claim from intrinsic value damages claim).W.3d at 561. not the owner’s mental anguish. The two types of damages. our reluctance to leave the legally injured plaintiff with no remedy at all … does not come into play in cases where the primary injury is to property. In such cases. The same logic applies to the damages at issue here. The court of appeals’ decision allows the Medlens to recover damages for personal injury to them in the form of loss of companionship based on the negligent loss of property. See. “not as persons.” Id. 144 S. the court of appeals’ decision is inconsistent with the rationale of Likes. under the analysis applied to mental anguish damages in Likes. e. Petco. are fundamentally distinct. (emphasis supplied). Id. When personal property having its value solely in sentiment is destroyed. Texas courts classify dogs as personal property for damage purposes. 114 S.g. Amended Petition for Review Page 12 . loss of companionship damages are not compensable for the negligent destruction of a dog.Brown for property that has its primary value in sentiment. extensions of their owners.

1978). Miller. Even if this Court’s decisions may be construed as broadening the availability of intrinsic or sentimental value property damages to include loss of companionship damages in animal law cases.3d 113. For example. the Court should preclude that liability for social and public policy reasons. care.W.2d 665.II.W. Williamson. 804 S. and society that can occur when a family member is injured. NO COMPELLING SOCIAL POLICY FAVORS RECOGNITION OF A DOG OWNER’S RIGHT TO RECOVER LOSS OF COMPANIONSHIP DAMAGES AND PUBLIC POLICY FORBIDS IT. Page 13 Amended Petition for Review . protection. 1990).2d 463. 120 (Tex.” Roberts v. companionship.11 Thus.W. the Court Loss of companionship is a component of loss of consortium which includes the loss of love.W. 467 (Tex. See Reagan v. 572 S. 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”). 11 Whittlesey v. Vaughn. Whittlesey v. the Court’s decisions in loss of consortium cases should inform its determination of whether the new liability created by the court of appeals is justified.” 572 S. the Court did so to “keep pace with modern society by recognizing that the emotional interests of the marriage relationship are as worthy of protection from negligent invasion as are other legally protected interests. The court of appeals’ recognition of a claim for loss of companionship in the form of sentimental value property damages for the death of a dog is analogous to loss of consortium of a family member. Miller. 1978). 668 (Tex. 667 (Tex. 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. For similar social policy reasons. 111 S. 2003).2d 665. affection. emotional support.

2d 377. Schindler. To the contrary. see Ford Motor Co.W. 967 S.W. 310 S. grandparent. Inc. Copelin.3d at 118. no social policy that compels the courts of this state to elevate the humandog relationship in the common law to the same status as a human familial relationship. Quality Control Parking. Cavnar v.W. See Roberts. however. Amended Petition for Review Page 14 14 13 12 . Without such a limit. 252 (Tex. There is.2d at 467.14 The death of a pet undoubtedly has emotional consequences for its owner. sound public policy requires that such consequential damages end with the two primary human relationships this Court has recognized as needing special protection. 383 (Tex. 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.W. See Sanchez v. sister.12 The Court.2d 549 (Tex.2d 249. Because a loss of companionship claim is derivative of the family member’s claim for personal injury. Reed Tool Co. 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. 111 S. v. 1980). grandparents. step-parents. v. has “narrowly cabined” these extensions of common law to these two primary human relationships and rejected recovery by siblings. 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). and attempt to protect that relationship by creating a cause of action for loss of pet companionship.W. or close human friend.W. it certainly is no more worthy of protection by the tort system than these valuable human relationships. 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).W.2d at 467. Roberts. close friends and others. 111 S. 804 S.W. indeed. 804 S. Reagan. 1998).2d at 667.13 While the special relationship a dog owner has with “man’s best friend” is important. 738-39 (Tex. 696 S.W.subsequently extended loss of consortium liability to the parent-child relationship. See Reagan. It would. step-child. 572 S. however..2d 736. 651 S.3d at 118. Miles. Whittlesey.

Rabideau v. the court of appeals’ decision to expand the common law remedy for negligent loss of a dog to include loss of companionship in the form of sentimental value property damages has no social justification and is contrary to the common law and public policy of this State. Our vast ability to form these bonds adds to the richness of life. City of Racine. PRAYER For all of the reasons above.liability for the negligent death of a companion animal would have no sensible or just stopping point. and render judgment dismissing the Medlens’ claims. 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. Strickland prays that this Court reverse the court of appeals’ opinion and judgment. as well as charging tortfeasors with financial burdens that are fair. 627 N. Is the particular human companion every family member? The owner of record or primary caretaker? A roommate? Second. compel the conclusion that the definition suggested by [the plaintiff dog owner] will not definitively meet public policy concerns. Amended Petition for Review Page 15 . As the Wisconsin Supreme Court aptly observed in rejecting the recovery of mental anguish damages for negligent destruction of a dog: First. it is difficult to define with precision the limit of the class of individuals that fit into the human [animal] companion category. 802 (Wis.W. the public policy concerns relating to identifying genuine claims of emotional distress. in this case. 2001).2d 795. However.

John H. return receipt requested and electronic mail: VIA EMAIL AND CMRRR Randall E.cayce@kellyhart. LLP 6115 Camp Bowie Blvd.. Texas 76116-5544 Telephone: 817-338-0639 Telecopier: 817-336-0199 COUNSEL FOR PETITIONER CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of February. Turner rturner@galyen. Jr. Texas 76102 Telephone: 817-332-2500 Telecopier: 817-878-9280 Paul Boudloche State Bar No. 24032717 alison. Texas 76021 Counsel for Respondents /s/ Alison M. Rowe State Bar No. Rowe Alison M. 2012. Cayce.com KELLY HART & HALLMAN LLP 201 Main Street.Respectfully submitted. 04035650 john. Airport Freeway Bedford. Cayce.com Alison M. Suite 154 Fort Worth. a true and correct copy of the foregoing document has been served on opposing counsel via certified mail. Suite 2500 Fort Worth.rowe@kellyhart. /s/ John H.net MASON & BOUDLOCHE. Rowe Amended Petition for Review Page 16 . State Bar No. Jr.com BAILEY & GALYEN 1901 W. 02694700 paulboudloche@mbllp.

KATHRYN AND JEREMY MEDLEN. 2011). App.No. . Nov.—Fort Worth. 12-0047 ________________________________________________________________________ IN THE SUPREME COURT OF TEXAS ________________________________________________________________________ CARLA STRICKLAND. Carla Strickland. Cause No. ________________________________________________________________________ On Petition for Review from the Second Court of Appeals at Fort Worth. Respondents. 3. 2. 02-1100105-CV. Strickland. Petitioner. Texas No. 2009-75521-1. Order on Carla Strickland’s Special Exceptions to Plaintiffs’ Second Amended Petition. 1. Tarrant County. v. Kathryn and Jeremy Medlen v. in the County Court at Law No. 2011 WL 5247375 (Tex. No. Texas. 02-11-00105-CV ________________________________________________________________________ INDEX TO APPENDIX TO AMENDED PETITION FOR REVIEW ________________________________________________________________________ 1. Medlen v.

Appendix No. 2009-75521-1 Kathryn and Jeremy Medlen v. Carla Strickland . 1 Amended Petition for Review Order on Carla Strickland’s Special Exceptions to Plaintiffs’ Second Amended Petition Cause No.

.

2011 WL 5247375 (Tex. No. 3. App.Appendix No. Strickland. 02-11-00105-CV. 2011). 2 Amended Petition for Review Medlen v. .—Fort Worth. Nov.

held that dog owners could be awarded damages based on sentimental value of euthanized dog. notifying employees that the dog was not to be euthanized. US Gov. Court of Appeals of Texas. Most Cited Cases Damages 115 105 115 Damages 115VI Measure of Damages 115VI(B) Injuries to Property 115k105 k. case law provided for recovery of “special value” of dog.Page 1 --. The County Court at Law No. 3. in action arising out of animal shelter employee's alleged negligence resulting in euthanization of dog. *1 Appellants Kathryn and Jeremy Medlen appeal the dismissal of their suit against Appellee Carla Strickland for the death of their dog. . Turner. 28 Animals 28k43 Injuring or Killing Animals in General 28k44 k. Most Cited Cases Dogs are personal property under state law. Carla STRICKLAND. for Appellants. When the Medlens returned for the dog a few days later. MEIER. PANEL: WALKER. Paul Boudloche.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex. 2011. Civil Liability. Justice.5 Animals as Property. for Appellee. West Headnotes [1] Animals 28 44 could be granted. [2] Animals 28 1. Hurst. Randall E. Destruction or Loss of Property. Fort Worth.5(4) k. made a list of animals that would be euthanized the following day. Appellee.App. Nov. R. they learned of his fate. Reconsideration En Banc Overruled Dec. Works. and a “hold for owner” tag was placed on Avery's cage. Avery was put down the next day.-Fort Worth)) Only the Westlaw citation is currently available. On June 6. and GABRIEL. JJ. 2009. contrary to the “hold for owner” tag. Most Cited Cases Dog owners could be awarded damages based on sentimental value of euthanized dog. Jeremy went to the animal shelter to retrieve Avery but did not have enough money with him to pay the fees. escaped from their backyard and was picked up by animal control. 1. as required for dog owners to have stated claim on which relief © 2012 Thomson Reuters. the Medlens' dog. No. 02–11–00105–CV. OPINION LEE GABRIEL. Appellants. J. J.. No Claim to Orig.App. Background Facts On or about June 2. Status 28k1.. Reversed and remanded. Avery.S. Holding: The Court of Appeals. 2011. Fort Worth. Tarrant County. He was told that he could return for the dog on June 10. Dogs. Owners appealed. Background: Dog owners brought action against employee of animal shelter regarding alleged negligence resulting in euthanization of dog. Lee Gabriel. 2011 WL 5247375 (Tex.3d ----. She put Avery on the list. Strickland. and such special value could be derived from attachment that owners felt for dog.5(4) 28 Animals 28k1. as required for dog owners to have stated claim on which relief could be granted.W. a shelter employee. We will reverse and remand the case to the trial court. Don Pierson. v. 1. dismissed action. Kathryn and Jeremy MEDLEN.

Brown v.W. damages may be awarded based on this intrinsic or sentimental value. woman. Strickland specially excepted again. Brown.W. Id. The dogs “were of a fine breed.2d at 304–05 (awarding sentimental dam- © 2012 Thomson Reuters. The trial judge granted the special exception and ordered the Medlens to amend their pleadings to “state a claim for damages recognized at law. 369 S. Id.-Fort Worth)) The Medlens sued Strickland. or child. Porras.. Craig. City of Tyler v. 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. or a special or pecuniary value determined by the use- fulness or services of the dog. and the trial judge dismissed the lawsuit. 675 S.3d 309. Minco Oil & Gas. Id. 962 S. if the dog has any. 506 (Tex. Strickland argues that Heiligmann prohibits consideration of the sentimental value of the animal in determining its “usefulness” to the owner.2d 299. holding that the value of a dog may be determined by “either a market value. at 931. Arrington.S. Id. 312 (Tex. damages can be awarded based on the intrinsic or sentimental value of the personal property. Inc. Porras v. Inc.” Id.App. at 932. Strickland contends that under an 1891 supreme court case.3d ----. 81 Tex. if there is any.1963) . “the evidence [was] ample showing the usefulness and services of the dogs.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex.” Id. . The Medlens appealed.W. the Medlens argue that they should be able to recover the intrinsic value of their dog. and that they were of special value to the owner.2d 489. by evidence. The court upheld the damages award. 497 (Tex.App.W.2d at 506 (adopting “intrinsic value rule” and awarding intrinsic value for the loss of shade or ornamental trees). Arrington v. at 932. See Heiligmann v. 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. alleging that her FN1 negligence proximately caused Avery's death. In that case.W. we do not defer to the legal determinations of the trial court but instead apply a de novo standard of review.2d at 497 (reaffirming recovery of sentimental value for items that have little or no market value. 2011 WL 5247375 (Tex.” Id. 369 S. See Likes. Likes. *2 In Heiligmann. Id.1999). a party can only recover the market value. family photographs.” The Medlens filed an amended petition but reasserted that they were seeking damages for Avery's “intrinsic value” only. 304–05 (Tex.1891). and keepsakes). Dogs are personal property under Texas law. They sued for Avery's “sentimental or intrinsic value” because he had little or no market value and was irreplaceable. [2] The Medlens argue that the Texas Supreme Court has repeatedly held that where personal property has little or no market value. 962 S. 613 S. or some special or pecuniary value to the owner. El Paso Natural Gas Co. 222. that may be ascertained by reference to the usefulness and services of the dog.W. one of the dogs used different barks to signal to appellees whether an approaching person was a man. no writ). 675 S. dogs are treated differently under the law than other personal property.1997). but that she would not have been willing to part with them for $50 apiece. In issues that turn on a pure question of law.Page 2 --.Civ.App. For dogs. Therefore..1984). such as family correspondence. it has explicitly held that where personal property has little or no market value.W. 16 S. Frontier Theatres.-Fort Worth 1981.2d 565. The court reasoned that the jury could infer the value of the dogs “when the owner. and well trained”. One of the appellees testified that the dogs could have been sold for $5 each.W. The Texas Supreme Court has not dealt directly with the value of a lost pet in the 120 years since Heiligmann. fixes some amount upon which they could form a basis.W. and its main value is in sentiment. the trial court awarded damages to the appellees after three of their dogs were maliciously poisoned by Heiligmann. Works. Rose.2d 503. but in more recent cases.W. 569 (Tex. US Gov. 8 S. v. Discussion [1] The Medlens' sole issue on appeal is whether a party can recover intrinsic or sentimental damages for the loss of a dog. 931 (Tex. No Claim to Orig.

including lost wages. watch. Id.W. Id. As with Bueckner. In doing so. for loss of companion- © 2012 Thomson Reuters.App. No Claim to Orig.2d 368 (Tex.W. Id.W. and Bueckner. emotional distress.] 1994.W. Justice Andell wrote separately only to address an alternative basis for the award on which he had strong feelings. 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]. at 371–72.App. no pet. The majority thus did not address that issue. J.2d at 370. The trial court determined that the dogs had a market value. the plaintiff was awarded damages. 43 S. Redmon. 886 S. not the value of their unborn puppies. The court restated the rule from Heiligmann. writ denied) (using expected stud fees to determine pecuniary value). See Petco Animal Supplies. at 377 (“I consider [pets] to belong to a unique category of ‘property’ that neither statutory law nor caselaw has yet recognized.3d ----. but it found these cases unhelpful because the plaintiff never pleaded special or intrinsic value.App. We also disagree with Strickland's position that Bueckner supports the idea that sentimental value is not recoverable. Inc.3d 554 (Tex. US Gov. allowing for either market value or special value based on the dog's usefulness or services. must be determined.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex. mental anguish. The court discussed Porras.”).-Houston [1st Dist. not companionship or sentimental value. and intrinsic value. Young's Bus Lines. Zeid v. 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. 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. no writ) (denying damages for pain and suffering or mental anguish for the loss of a pet).2d 266 (Tex. The Medlens contend that the notion that the Texas Supreme Court intended to exclude dogs from the intrinsic value rule appears nowhere in these subsequent opinions. *3 Redmon was decided more than thirty years before the Texas Supreme Court held in Brown that sentimental damages could be awarded for personal property. concurring).Page 3 --. awarding intrinsic value for shade trees.825 in “actual damages. shoes. Bueckner v. the court considered the breed of the dogs and their owner's plan to use them for breeding in the future. .” Id. The appeals court agreed that the value of the dogs themselves. In Petco. In Zeid. v. Bueckner. not from companionship or other sentimental considerations). We disagree with Redmon regarding the sentimental value of a dog to its owner based on later supreme court decisions. point lace collar. The defendant appealed.-Beaumont 1931. Id. the plaintiff sued the defendant for shooting two of his dogs. 2011 WL 5247375 (Tex. Pearce. Hamel. intrinsic value as companions. They argue that to treat a dog differently than all other personal property would be irrational. the court in Zeid was silent on the issue of companionship and sentimental value. v.App.W. Inc. 953 S.. Schuster. Zeid also does not support Strickland's argument that sentimental value is not recoverable.) (interpreting Heiligmann to mean that special or pecuniary value can only be derived solely from the dog's usefulness or services.App.2d 368 (Tex.Civ. plaintiffs sought to recover pain and suffering and mental anguish damages for the loss of their dog. 144 S. and special value as loved pets. Id.2d at 369.App. at 373 (Andell. and it awarded the plaintiff $1. no writ) (stating that peculiar or sentimental value of a dog or what it was worth to its owner is not admissible). 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. 886 S. See id. pecuniary value. Id. the defendant did not challenge the trial court's findings of fact that addressed the intrinsic value of the pets.-Austin 2004.W. and slumber spreads).W. As the concurrence in Bueckner points out. Works. at 369–70.S. In that case.-El Paso 1997. 953 S.-Fort Worth)) ages for loss of items such as wedding veil.

Finally.W. No Claim to Orig. We find little reason in this argument and do not believe that it reflects the attachment owners have to their beloved family pets. intrinsic damages could be awarded for a sentimental photograph of a family and its dog.App. citing Heiligmann's rule of either market value or some special or pecuniary value based on usefulness or services of the dog. but not for the dog itself. of Tex. 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. Kan. Second. at 225–26. 637 (Tex. but not a pet that had been purchased. counseling costs. v. at 565. at 560.-Dallas 1909.-Fort Worth)) ship after her dog escaped from a groomer and was run over. *4 We respectfully disagree with our sister court's interpretation of Heiligmann and its holding in Petco regarding intrinsic value for loss of companionship. 16 S. 2011 WL 5247375 (Tex. we are doing neither of those things. Texas law has changed greatly since 1891. The Heiligmann court reasoned. We are duty-bound to interpret Heiligmann in light of subsequent supreme court decisions which have developed and refined the law concerning intrinsic value damages. 144 S. Id.W.. 16 S. Heiligmann says that the value of a dog “may be” ascertained from usefulness or services. 115 S.” Id. mental anguish. The court of appeals agreed. 931. Id. Mo. Intrinsic value for loss of companionship was among the damages that were reversed. It certainly did not rule out companionship or sentimental value.App.W. Co. That special value must be more than the market value of a well-trained dog. “ 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. as Strickland has admitted. Ry. & Tex.’ for the law implies that some damages result from every illegal trespass or invasion of another's rights.App. Heiligmann was decided at a time when Texas law did not allow recovery for the sentimental value of any personal property. 635.3d ----. there is a difference between overruling one hundred and twenty years of law and overruling one onehundred-and-twenty-year-old case.3d at 557. at 226. asserting that as a matter of law the trial court could not award lost wages. 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. Id.” Id.S.W.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex. The Heiligmann court still stated that the dogs “were of a special value to the owner. The law recognizes a property in dogs. ‘You have suffered no damages. and loss of companionship damages for the loss of a dog. Heiligmann does not say that special value is derived “solely” from usefulness or services and that it does not include companionship or sentimental value. such as trees. 931. at 932. therefore. at 561. Petco appealed. 16 S. not value attributed to companionship or other sentimental considerations. Strickland's position might also allow intrinsic damages for a pet that had been inherited from a loved one. e.W. 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. US Gov. See. The wrong-doer cannot escape the consequences of his acts by saying.” First of all. no writ) (“It seems to be well settled in this state that the measure of dam- © 2012 Thomson Reuters..Civ. According to Strickland's position. Id. Works. 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.W.g. The court went on to state. The Heiligmann opinion never uses the term “intrinsic value” or “sentimental value”. Dement.Page 4 --. and for a trespass and infraction of this right the law gives the owner his remedy. . the opinion cannot preclude an award of damages never specifically discussed. And nowhere does Heiligmann state what should be considered in assessing the usefulness or services of a dog.

W.-Fort Worth) END OF DOCUMENT © 2012 Thomson Reuters.-Fort Worth) (Cite as: 2011 WL 5247375 (Tex.-Fort Worth)) ages for the loss of articles which have no market value.W. place upon them. asking that the case be remanded if reversed.2(b)(2).3d ----. Medlen v.W. Bueckner. .2d at 377–78 (Andell. 886 S. Tex. hence. US Gov.”). See Tex. P. FN1. 38.Page 5 --. Today. See Likes.2d at 497. Strickland --. the trial court erred in dismissing the Medlens' action against Strickland. whom they later nonsuited. The Medlens also sued another employee of animal control. J. at 932.”). and because dogs are personal property.App.App. 369 S. 2011 WL 5247375 (Tex. so that she may file a motion to dismiss on grounds of governmental immunity.W.. 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. 962 S.3d ----. sentimental damages may now be recovered for the loss or destruction of all types of personal property.W. Works.App.2d at 506. and which cannot be replaced or reproduced.S. No Claim to Orig. Conclusion Having sustained the Medlens' sole issue on appeal. 2011 WL 5247375 (Tex. Cf. we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.W. Brown. for special reasons. and not any fanciful price that he might. We sustain the Medlens' sole issue on appeal. Heiligmann was ahead of its time by noting that the dogs “were of special value to the owner.S. *5 Because an owner may be awarded damages based on the sentimental value of lost personal property. Because we have sustained the Medlens' sole issue and are remanding the case to the trial court on that basis. is the actual loss in money sustained by the owner by reason of his being deprived of such articles.” 16 S.2d at 304–05. He is not a party to this appeal. In that way. and because we do not need to reach Strickland's cross-point.2011.App. 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. 675 S. 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.R.App. Dogs are unconditionally devoted to their owners. Strickland raises a cross-point.–Fort Worth. As we noted above. Because of the special position pets hold in their family. concurring) (“Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and. Porras. we do not need to reach Strickland's cross-point seeking the same relief of remand. mere property.W.

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