                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00105-CV


KATHRYN AND JEREMY MEDLEN                                         APPELLANTS

                                          V.

CARLA STRICKLAND                                                     APPELLEE

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       FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                                      OPINION
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      Appellants Kathryn and Jeremy Medlen appeal the dismissal of their suit

against Appellee Carla Strickland for the death of their dog. We will reverse and

remand the case to the trial court.

                                Background Facts

      On or about June 2, 2009, the Medlens‘ dog, Avery, escaped from their

backyard and was picked up by animal control.       Jeremy went to the animal

shelter to retrieve Avery but did not have enough money with him to pay the fees.

He was told that he could return for the dog on June 10, and a ―hold for owner‖
tag was placed on Avery‘s cage, notifying employees that the dog was not to be

euthanized. On June 6, Strickland, a shelter employee, made a list of animals

that would be euthanized the following day. She put Avery on the list, contrary to

the ―hold for owner‖ tag. Avery was put down the next day. When the Medlens

returned for the dog a few days later, they learned of his fate.

      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.



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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


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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


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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


                                         5
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


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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.




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      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-hundred-

and-twenty-year-old case. Second, we are doing neither of those things. We are

duty-bound to interpret Heiligmann in light of subsequent supreme court



                                          8
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


                                         9
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


                                       10
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




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