      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00354-CV



                            Petco Animal Supplies, Inc., Appellant

                                                 v.

                                    Carol Schuster, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
        NO. GN301019, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                          OPINION


               In this case, we consider the types of damages that Texans may recover for the loss

of a pet dog.1 Appellee, Carol Schuster, sued appellant, Petco Animal Supplies, Inc. (Petco) after

her miniature schnauzer, Licorice, was run over by traffic after escaping from a Petco groomer.

Schuster took a default judgment, and the trial court awarded damages, including Schuster’s

replacement costs for Licorice; her out-of-pocket costs for training and microchip implantation; her

wages lost while searching for Licorice after the dog escaped; Schuster’s mental anguish, emotional

distress and counseling costs; “‘intrinsic value’ loss of companionship”; exemplary damages; and

attorneys fees. Petco now brings a restricted appeal challenging the award of several of these




       1
           We are thus not addressing the damages recoverable for the loss of such animals as
livestock, equines, or wild animals.
damage elements. Because we are bound to adhere to Texas’s traditional restrictive view toward

damages for the loss of a dog, we will affirm in part and reverse in part.


                                            BACKGROUND

                  On January 16, 2003, Schuster brought her fourteen-month-old miniature schnauzer,

Licorice, to a Petco store in Austin to be groomed. As Schuster was returning to the store to pick

up Licorice, she saw the dog running away from the store through the surrounding high-traffic area.

Later, Schuster learned that Licorice had slipped her leash and run away from a Petco employee who

had taken the dog outside for a bathroom break. Schuster and Petco employees searched for Licorice

for four days until, tragically, the dog was found dead, having been run over by traffic.

                  Schuster sued Petco for breach of contract, gross negligence, and conversion. Petco

did not answer, and Schuster took a default judgment and then offered evidence to support a range

of unliquidated damages. Schuster testified that Licorice’s replacement value was $500.00, that she

had incurred $892.00 to send Licorice to training school and $52.40 for microchip implantation,2 and

that she had lost $857.68 in wages while missing work to search for Licorice.

                  Schuster also testified that she had experienced a total of $645,000 in mental anguish

while searching for Licorice and after learning of the dog’s death, as well as $160 in counseling

costs.       Schuster also asked the district court to award $280,000 in damages for “loss of

companionship of Licorice.” She additionally requested $1 million in exemplary damages, plus

attorneys fees.


         2
             Apparently implanted microchips are used as identifiers, essentially a high tech version of
dog tags.

                                                     2
              The district court awarded Schuster the following damages:


       $500.00 as the replacement value of Licorice;

       $892.00 as reimbursement costs of putting Licorice through training school;

       $52.40 as reimbursement for microchip implantation;

       $857.68 as lost wages for Schuster when she was searching for Licorice;

       $160.00 as counseling costs;

       $10,000 as compensation to Schuster for mental anguish and emotional distress;

       $10,000 as compensation for “‘intrinsic value’” loss of companionship”;

       $10,000 as exemplary damages; and

       $ 6,750 as attorney’s fees (with more allowed for any appeals taken).


The district court thus awarded Schuster the full amount of damages she had requested except

reduced amounts for mental anguish, loss of companionship, and exemplary damages. The court

expressed skepticism that any damages beyond replacement value for Licorice were properly

recoverable. Nonetheless, it awarded $10,000 each for mental anguish, loss of companionship, and

exemplary damages.3

              The judgment was signed on April 29, 2003. Petco did not file a motion for new trial

but filed a notice of appeal on June 11, 2003, over 40 days after the judgment was signed. Petco




       3
         The court viewed these amounts as “more appropriate and more in line with anything that
might hold up.”

                                               3
contends only that the damage award is not authorized by law or supported by the evidence.

Specifically, Petco urges: (1) Texas law does not support any award for mental anguish and related

counseling, loss of companionship, or lost wages for the loss of a dog; (2) there was no evidence of

conduct by Petco to support imposition of exemplary damages; (3) the attorney’s fee award, which

was based upon forty-five hours of work by Schuster’s attorney at $150 per hour, was excessive; and

(4) the district court erroneously awarded both breach of contract and tort damages for the same

injury, the loss of Licorice.


                                            DISCUSSION

Standard and scope of review

                Although Petco filed its notice of appeal after the ordinary 30-day deadline for

perfecting appeal had expired, it acted within the six-month period for bringing a restricted appeal.

Tex. Civ. Prac. & Rem. Code Ann. § 51.013 (West 1997); Tex. R. App. P. 26.1(c), 30. A direct

attack on a judgment by restricted appeal must (1) be brought within six months after the trial court

signs the judgment; and, additionally, (2) be brought by a party to the suit; (3) who did not participate

in the hearing that resulted in the judgment complained of, timely file a postjudgment motion,

request for findings of fact and conclusions of law, or a notice of appeal within the normal thirty-day

period; and (4) the error complained of must be apparent from the face of the record. Tex. R. App.

P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per

curiam). Schuster does not dispute that Petco satisfied the first three conditions for bringing a

restricted appeal. The fourth condition helps define our scope of review.




                                                   4
               In a restricted appeal, we are limited to considering only the face of the record, but

our scope of review is otherwise the same as that in an ordinary appeal; that is, we review the entire

case. Norman Communications, 955 S.W.2d at 270; L.P.D. v. R.C., 959 S.W.2d 728, 730 (Tex.

App.—Austin 1998, pet. denied). The face of the record, for purposes of restricted appeal review,

consists of all the papers on file in the appeal, including the reporter’s record.           Norman

Communications, 955 S.W.2d at 270. Thus, “[i]t necessarily follows that review of the entire case

includes review of legal and factual insufficiency claims.” Id. We can thus consider Petco’s

challenges to the legal and factual sufficiency of the trial court’s damage award in this proceeding.

This includes not only the amount of damages awarded, but whether Schuster has established the

required causal nexus between those damages and the event sued upon, the death of Licorice.

Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731-32 (Tex. 1984); Transport Concepts v.

Reeves, 748 S.W.2d 302, 304 (Tex. App.—Dallas 1998, no pet.). We can also consider the related,

purely legal issue of whether the various elements of the damage award are recoverable under Texas

law. See Fitz v. Toungate, 419 S.W.2d 708 (Tex. Civ. App.—Austin 1967, writ ref’d n.r.e.); cf. City

of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) (affirming summary judgment and holding that Texas

law does not permit recovery of mental anguish damages arising from loss of property). Because

the judgment itemized the damage elements the district court awarded, we can consider each element

separately. See, e.g., Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex. App.—Fort Worth 2003, no

pet.).4


          4
          Schuster urges that Petco has waived its appeal by failing to file a motion for new trial.
She relies upon Texas Rule of Civil Procedure 324(b), which provides that “[a] point in a motion
for new trial is a prerequisite to the following complaints on appeal . . . a complaint on which

                                                  5
               In deciding a legal sufficiency challenge, “we must view the evidence in a light that

tends to support the disputed finding and disregard evidence and inferences to the contrary.” Wal-

Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (citing Bradford v. Vento, 48

S.W.3d 749, 754 (Tex. 2001)). A legal sufficiency or “no evidence” point will be sustained when

(a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or

of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively

establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1996); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error,

38 Tex. L. Rev. 361, 362-63 (1960). More than a scintilla of evidence exists when the evidence

supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.” Havner, 953 S.W.2d 706, 711 (quoting Burroughs Wellcome

Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10,

25 (Tex. 1994)). If the evidence is so weak as to do no more than create a mere surmise or suspicion




evidence must be heard such as . . . failure to set aside a judgment by default.” Tex. R. Civ. Proc.
324(b). But Petco does not attempt to set aside the default judgment or raise other grounds that
would require evidence; instead, it challenges only the legal validity of the damages awarded and the
sufficiency of the evidence supporting them. These matters, as explained above, can be determined
from the face of the existing record. Moreover, if, as Schuster suggests, Rule 324(b) means that a
motion for new trial is required as a prerequisite for all appeals from default judgments, it would
preclude all restricted appeals. One of the requirements for bringing a restricted appeal is that the
party has not filed a postjudgment motion in the trial court. Tex. R. App. P. 30. We reject such a
broad reading of Rule 324(b).

                                                  6
of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd.,

896 S.W.2d 179, 182 (Tex. 1995).

               When reviewing a jury verdict to determine the factual sufficiency of the evidence,

we must consider and weigh all the evidence and should set aside the judgment only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will not substitute our judgment for that of the

trier of fact merely because we reach a different conclusion. Id.


Damages for loss of a dog

               Petco asserts that the district court could not, as a matter of law, award Schuster

damages for mental anguish, counseling costs, “‘intrinsic value’ loss of companionship,” and lost

wages. We agree.

               Analysis of damage issues recoverable for the loss of a dog in Texas begins with

Heiligmann v. Rose, 16 S.W. 931 (Tex. 1891), a tort action arising from the poisoning deaths of

several dogs. The jury, finding that the defendant poisoned the dogs intentionally and maliciously,

awarded both actual and exemplary damages. Id. The defendant challenged the sufficiency of the

evidence of damages. Id. In addressing this argument, the Texas Supreme Court articulated legal

principles governing damages for the death of a dog:


       The authorities well settle that dogs are property, and that an owner has his action and
       remedy against a trespasser for the damages resulting from injuries inflicted upon
       them. Some authorit[i]es hold that dogs have no market value. This may be relatively
       true, but it is not a rule that will govern in all cases. It may be difficult, in the majority
       of cases, to ascertain the market value of a dog, but such a result may, in some cases,
       be accomplished. The special charge asked by appellant, and given by the court,

                                                     7
       substantially presents the true rule in determining the value of dogs.[5] It may be
       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. at 932. Evaluating the evidence, the court noted that the dogs had been “of a fine breed, and well-

trained,” that the owners had taken “great pains” to raise them, and that one of the dogs had even

been trained to identify, through distinguishing barks, whether persons who approached were men,

women or children. Id. The court concluded that while “[t]here is no evidence in this case that the

dogs had a market value . . . the evidence is ample showing the usefulness and services of the dogs,

and that they were of special value to the owner.” Id.

                Though decided a few years before the Texas courts of appeals were created,

Heiligmann remains the law today, and it stands for several key principles that govern our resolution

of the damage issues in this case. First, it classifies dogs as personal property for damage purposes,

not as persons, extensions of their owners, or any other legal entity whose loss would ordinarily give

rise to personal injury damages. Texas courts have continued to classify dogs as property for damage

purposes. Zeid v. Pearce, 953 S.W.2d 368 (Tex. App.—El Paso 1997, no writ); Buekner v. Hamel,

886 S.W.2d 368, 370 (Tex. App.—Houston [1st Dist.] 1994, writ denied); see also Arrington v.




       5
           The special charge referenced by the supreme court provided, in relevant part:

           In order for the plaintiffs to recover, you must find from the testimony that the
           defendant poisoned the dogs, and that they were the property of plaintiffs; that
           the dogs were of some pecuniary value,—either that they had some market value
           at which they would sell, or that the services or use of the dogs were of some
           pecuniary value . . . .

Heiligmann v. Rose, 16 S.W. 931 (Tex. 1891).

                                                  8
Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App.—Fort Worth 1981, no writ) (refusing to appoint

managing conservator of pet dog in divorce case, observing that “[a] dog, for all its admirable and

unique qualities, is not a human being and is not treated in the law as such. A dog is personal

property, ownership of which is recognized under the law.”). We do not understand Schuster to be

challenging this traditional classification.6

                Second, Heiligmann identifies only two elements that can be awarded under the “true

rule” of damages for loss of a dog: (1) market value, if any, and (2) “some special or pecuniary value

to the owner, that may be ascertained by reference to the usefulness and services of the dog.” Third,

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.

                With these key principles in mind, we turn to Petco’s challenges to Schuster’s mental

anguish, counseling costs, “‘intrinsic value’ loss of companionship” and lost wages damages.


Mental anguish

                Petco maintains that Heiligmann forecloses Schuster’s recovery of mental anguish

damages. Though Heiligmann did not squarely address whether mental anguish damages are

available for the loss of a dog, our sister court in El Paso has held “this longstanding Texas rule”




        6
         Nor does Amicus Curiae Animal Legal Defense Fund. While recognizing the status of
animals as property, it urges that this classification should not preclude the award of intrinsic value
damages reflecting the value of animals as companions. But another Amicus Curiae, Animal Legal
Reports Services, urges this Court to classify companion animals as “sentient” property, a status that
recognizes the animals’ own feelings and emotions.

                                                  9
barred recovery of damages for mental anguish, as well as pain and suffering, for the loss of a dog

in a veterinary negligence case. Zeid, 953 S.W.2d at 369.7

               In response, Schuster points out that at least one Texas court awarded mental anguish

damages in a case involving the fatal shooting of a dog. City of Garland v. White, 368 S.W.2d 12,

14-17 (Tex. Civ. App.—Eastland 1963, writ ref’d n.r.e). But the White court never mentions

Heiligmann and it is unclear whether the defendants ever disputed whether mental anguish damages

were properly recoverable for the death of a dog. Even if White might otherwise support Schuster,

the case is easily distinguishable.

               White involved the intentional, premeditated shooting of a dog. Id. at 14-15.8 By

contrast, Schuster asserts at most gross negligence. The Texas Supreme Court, addressing property

damage cases generally, held that mental anguish damages are not recoverable for negligent property

damage as a matter of law. Likes, 962 S.W.2d at 497. The supreme court explicitly reserved the

question of whether mental anguish arising from property damage might be available where a degree

of culpability higher than simple negligence is found. Id. But the only Texas court to have

subsequently addressed the question concluded that grossly negligent property damage can support

a claim for mental anguish only where there is evidence of some ill-will, animus, or desire to harm

       7
         The Zeid court also observed that the Texas Supreme Court had refused to permit bystander
recovery for mental anguish in medical malpractice cases involving humans. It rejected any thought
of permitting recovery of mental anguish where medical malpractice harms a dog. Zeid v. Pearce,
953 S.W.2d 368, 370 (Tex. App.—El Paso 1997, no writ) (citing Edinburg Hosp. Auth. v. Trevino,
941 S.W.2d 76, 81 (Tex. 1997)).
       8
          This Court once cited Garland for the proposition that “defendant who intentionally and
wrongfully shot plaintiff’s dog liable for unintended injuries to plaintiff in form of mental pain and
suffering and physical damage to his house caused by the shotgun blast” Bennight v. Western Auto
Supply Co., 670 S.W.2d 373, 378 (Tex. App.—Austin 1984, writ ref’d n.r.e).

                                                 10
the plaintiff personally. Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 753-

57 (Tex. App.—Houston [14th Dist.] 1998, no pet.). There is no such evidence here.

               The only proof that Schuster offered to establish her mental anguish damages was her

testimony that she had been “terror ridden” as she searched for Licorice because the dog “had never

been out, never been loose” and was likely scared; “it was cold, freezing weather” and the dog had

just had a short haircut; and Schuster feared that Licorice would be killed on the busy roads.

Schuster then quantified her anguish as ranging between $1,000 and $20,000 per day. Nowhere in

her testimony, or even in her pleadings, did Schuster claim any ill-will, animus or desire by Petco

to harm her personally.

               Schuster also relies on a line of cases awarding mental anguish damages when arising

from the breach of duties incident to certain “special relationships,” including “a very limited

number of contracts dealing with intensely emotional noncommercial subjects” such as preparing

a corpse for burial or delivering news of a family emergency. Likes, 962 S.W.2d at 496 (citing Pat

H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex. Civ. App.—Houston [14th Dist.] 1969, writ ref’d

n.r.e.), and Stuart v. Western Union Tel. Co., 18 S.W. 351, 353 (Tex. 1885)). It is unclear whether

Schuster views these cases as supporting mental anguish damages under her tort claims or breach

of contract claim, or both. Regardless, Schuster does not attempt to explain how or why dog

grooming falls within the narrow class of “intensely emotional noncommercial subjects” that could

give rise to mental anguish damages. To the contrary, we believe Schuster’s claim is governed by

the general rule that mental anguish damages are not available for breach of a contract, Stewart Title




                                                 11
Guar. Co. v. Aiello, 941 S.W.2d 68, 72 (Tex. 1997), and by the traditional limitations of

Heiligmann.9

               Because there is no support in Texas law for awarding mental anguish damages for

the loss of a dog, we reverse the trial court’s award of mental anguish damages. Heiligmann, 16

S.W. at 932; Zeid, 953 S.W.2d at 369.


Counseling expenses

               Because Schuster cannot recover for mental anguish or emotional harm arising from

Licorice’s death, we also reverse her award of counseling expenses. Alternatively, we agree with

Petco that there is no evidence that those expenses were reasonable and necessary.

               The sole evidence supporting the counseling expenses award was Schuster’s own

testimony. Her attorney asked her: “[h]ave you been through counseling since the death of

Licorice?” She responded that she had and had spent $160 in copayments for the counseling

sessions. She provided no testimony regarding reasonableness or necessity; therefore, this testimony

is no evidence supporting Schuster’s award for counseling costs. See Jackson v. Gutierrez, 77

S.W.3d 896, 902-03 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (in restricted appeal, holding




       9
          In addition, with regard to Schuster’s conversion claim, we note that Texas courts have
refused to award mental anguish damages for conversion. Winkle Chevy-Olds-Pontiac v. Condon,
830 S.W.2d 740, 746 (Tex. App.—Corpus Christi 1992, writ dism’d) (mental anguish not
recoverable for conversion but may be considered in awarding exemplary damages); First Nat’l Bank
of Missouri City v. Gittleman, 788 S.W.2d 165, 169 (Tex. App.—Houston [14th Dist.] 1990, writ
denied) (same); but see City of Tyler v. Likes, 962 S.W.2d 489, 498 (Tex. 1997) (citing Gittleman
for the proposition that mental anguish is not a compensable result of injuries to property interests,
but characterizing it as involving “conversion without malice”).

                                                 12
that failure of default judgment plaintiff to present evidence of reasonableness and necessity of

medical expenses required reversal of medical expenses award).


“‘Intrinsic value’ loss of companionship”

                 The trial court also awarded an element of damages it termed “‘intrinsic value’ loss

of companionship.” The sole proof Schuster offered in support of these damages related to her

subjective feelings for Licorice. At the default judgment hearing, Schuster testified that she had

purchased Licorice “as a friend and companion” after most of her children had left home. Licorice,

Schuster recounted,


       was with me all the time that I was home. We always joked that her name should
       have been Velcro instead of Licorice because she was right by my leg all the time.
       We went places together. If I went somewhere where she could go, she went with
       me . . . . She was a companion to me and I miss her.


Schuster calculated $280,000 in “loss of companionship” damages based on what she asserted was

the average life expectancy of a miniature schnauzer, 14 years, times the amount of annual salary

increase, $20,000, she claimed would be required to induce her to accept a job requiring her to part

with Licorice.

                 Although it perhaps resembles her claimed mental anguish or even the “loss of

companionship” that is a component of lost human consortium, Schuster conceives her “loss of

companionship” damages to be a form of “intrinsic value” property damages. “Intrinsic value”

damages are conceptually distinct from personal injury damages. See Zeid, 953 S.W.2d at 369-70

(distinguishing Zeid’s mental anguish and pain and suffering claim from special or intrinsic value



                                                  13
damages claim in Bueckner). Texas law permits the recovery of “intrinsic value” as the measure of

property damages in certain instances. Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984) (intrinsic

value of felled trees might be recoverable); see also Ives v. Webb, 543 S.W.2d 907, 910 (Tex. Civ.

App.—Corpus Christi 1976, no writ) (permitting award of intrinsic value damages in pure breach

of contract suit).

                Broadly speaking, intrinsic value is an inherent value not established by market

forces; it is a personal or sentimental value. Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298

(Tex. App.—Houston [14th Dist.] 1992, no writ). For example, the intrinsic value of trees is said

to be comprised of both an ornamental (aesthetic) value and a utility (shade) value. Cummer-Gramm

Co. v. Maddox, 285 S.W.2d 932, 936 (Tex. 1956).

                Schuster relies on Porras v. Craig for the proposition that she can recover the

“intrinsic value” of Licorice as a beloved companion. But, again, Heiligmann and its progeny

preclude such a recovery. Heiligmann’s “true rule” permitted recovery of a dog’s “special or

pecuniary value” ascertained solely “by reference to the usefulness and services of the dog.”

Heiligmann, 16 S.W. at 932 (emphasis added). Subsequently, in Young’s Bus Lines v. Redmon,

which involved the death of a seeing eye dog, the court distinguished between what it termed a dog’s

“intrinsic or actual value” (i.e., pecuniary value) which might be recoverable, and the mere “peculiar

or sentimental value placed upon the dog by [the owner], or what he considered the dog worth to

him,” which the court deemed irrelevant and inadmissible. 43 S.W.2d 266, 267-68 (Tex. Civ.

App.—Beaumont 1931, no writ). See also Zeid, 953 S.W.2d at 369 (citing Heiligmann for

proposition that recovery for death of a dog “is the dog’s market value, if any, or some special or



                                                 14
pecuniary value to the owner that may be ascertained by reference to the dog’s usefulness or

services.”). Heiligmann precludes the award of intrinsic value damages to Schuster, as she relies

solely on sentimental considerations.

               The Animal Legal Defense Fund presents an amicus brief supporting Schuster by

urging that such a limited concept of the intrinsic value of dogs is archaic and fails to take account

of the modern view of dogs as beloved friends and companions, a view reflected in Justice Eric

Andell’s concurrence in Bueckner,886 S.W.2d at 373 (Andell, J., concurring). One commentator

cited in the brief went as far as to suggest Americans today view their pets as more akin to family

members than mere property:


       In the United States, there is nearly one pet for every two Americans. Further,
       approximately 124 million dogs and cats live in American households. In one study,
       forty-five percent of dog owners reported that they take their pets on vacation.
       Another recent survey revealed that more than half of companion animal owners
       would prefer a dog or cat to a human if stranded on a desert island. Another poll
       revealed that fifty percent of pet owners would be ‘very likely’ to risk their lives to
       save their pets, and another thirty-three percent indicated they would be ‘somewhat
       likely’ to put their own lives in danger. These statistics indicate that companion
       animal owners view their pets as family members, rather than personal property.


William C. Root, Man’s Best Friend: Property or Family Member? An Examination of the Legal

Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful

Death or Injury, 47 Vil. L. Rev. 423, 423 (2002) (footnotes omitted). Indeed, within our jurisdiction,

there are myriad examples that Texans today view dogs more as companions, friends, or even

something akin to family than as an economic tool or benefit. There are at least thirty dog rescue




                                                 15
organizations in the Austin area,10 Austin’s “Mighty Texas Dog Walk” annually draws thousands

of participants,11 and even Petco’s counsel have publicly acknowledged “the special bond between

a pet and its owner” and suggested that “it is the rare person who does not get a little teary-eyed

when Old Yeller dies.”12

                As an intermediate appellate court, we are not free to mold Texas law as we see fit

but must instead follow the precedents of the Texas Supreme Court unless and until the high court

overrules them or the Texas Legislature supersedes them by statute.13 Thus, 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.

                Additionally, even if Porras or other more recent supreme court decisions could be

construed as broadening the availability of intrinsic value damages in animal cases, Schuster did not

meet the conditions for recovering those damages here. Intrinsic value damages are recoverable only

where the property is shown to have neither market value nor replacement value. International

Great Northern R. Co. v. Casey, 46 S.W.2d 669, 670 (Tex. Comm. App. 1932, holding approved);

see also Porras, 675 S.W.2d at 506 (intrinsic value damages unavailable unless loss of trees were

shown not to have reduced market value of land); City of Austin v. Cannizo, 267 S.W.2d 808, 812-13



       10
            See www.austinrescue.com/index.html (last visited Apr. 8, 2004).
       11
            See www.servicedogs.org/news/dogwalk2004.htm (last visited Apr. 8, 2004).
       12
         William W. Krueger & Christian Von Wupperfield, The Truth About Cats and Dogs,
Texas Lawyer (Feb. 23, 2003), at 27.
       13
           We note that the legislature has previously enacted statutes prescribing criminal penalties
for cruelty to animals. Tex. Penal Code Ann. § 42.09 (West 2003).

                                                 16
(Tex. 1954) (in condemnation case, landowner could not recover intrinsic value absent finding that

property had no market value).14 Schuster did not satisfy that condition. She offered no proof at all

regarding Licorice’s market value, or whether Licorice had any such value, and she testified that the

dog’s replacement value was $500.15

                Accordingly, we reverse the trial court’s damage award for “‘intrinsic value’ loss of

companionship.”


Lost wages

                Heiligmann would also appear to preclude Schuster’s lost wages recovery. Moreover,

Schuster cites no authority allowing her to recover lost wages for property damage unrelated to her

job. Likes informs us that “[w]hile few persons suffering serious bodily injury would feel made

whole by the mere recovery of medical expenses and lost wages, many whose property has been

damaged or destroyed will be entirely satisfied by recovery of its value.” 962 S.W.2d at 496-97

(emphasis added). We conclude that “lost wages” are not properly recoverable under Schuster’s tort

theories. See Heiligmann, 16 S.W. at 932; Zeid, 953 S.W.2d 368; Buekner, 886 S.W.2d 368.

        14
          Redmon also held that the plaintiff could not recover intrinsic value damages unless he
first showed the dog had no market value. Redmon, 43 S.W.2d at 267-68.
        15
            In Williams v. Dodson, 976 S.W.2d 861, 865 (Tex. App.—Austin 1998, no pet.), this
Court permitted the recovery of what it termed “intrinsic value” damages for the conversion of a
bracelet without first requiring proof regarding market value or replacement value. The Court was
applying a measure of damages applicable to marketable chattels held for the use and comfort of
their owner. Id. In this context, “intrinsic value” damages refer to the loss of use of the chattel to
the owner, excluding fanciful or sentimental considerations. Id. at 864; Crisp v. Security Nat’l Ins.
Co., 369 S.W.2d 326, 328-29 (Tex. 1963) (“The measure of damages that should be applied . . . is
the actual worth or values of the articles to the owner for use in the condition they were in at the time
of the fire excluding any fanciful or sentimental considerations.”). Schuster does not suggest that
she could recover her broader notion of “intrinsic value” damages under this theory.

                                                   17
                Lost wages in this case also have too attenuated a connection to Petco’s conduct to

be recoverable under her breach of contract theory. The supreme court has recently discussed

consequential damages in a breach of contract context:


         Consequential damages are those damages that ‘result naturally, but not necessarily,
         from the defendant’s wrongful acts.’ They are not recoverable unless the parties
         contemplated at the time they made the contract that such damages would be a
         probable result of the breach. Thus, to be recoverable, consequential damages must
         be foreseeable and directly traceable to the wrongful act and result from it.


Stuart v. Bayless, 964 S.W.2d 920, 921 (Tex. 1998) (internal citations omitted). We find Schuster’s

lost wages damages too remote to be fairly compensable. We reverse Schuster’s award for lost

wages.


Exemplary damages

                Petco asserts in its third issue that the district court improperly awarded Schuster

exemplary damages. As to her tort claim, Petco urges there is no evidence by which any grossly

negligent conduct by individual employees can be attributed to Petco. As to Schuster’s breach of

contract claim, Petco argues that exemplary damages are not recoverable for a breach of contract.

We agree. Again, we apply a legal sufficiency standard to the record to determine whether

exemplary damages were proper. See Wal-Mart Stores, Inc., 121 S.W.3d at 739.

                In order for exemplary damages to have been proper in this case, Schuster would have

had to have shown by clear and convincing evidence that the harm that she suffered was caused by

fraud or malice on the part of Petco. Tex. Civ. Prac. & Rem. Code Ann. § 41.003 (West 1997).

Further, punitive or exemplary damages may be recovered against a corporation only if the grossly

                                                 18
negligent act is the very act of the corporation itself. See Hammerly Oaks, Inc. v. Edwards, 958

S.W.2d 387, 391 (Tex. 1997). If the act is that of a mere servant or employee, then it must have been

previously authorized or subsequently must be approved by the corporation. See id.; Mobil Oil Corp.

v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) (citing Transportation Ins. Co. v. Moriel, 879 S.W.2d

10, 23 (Tex.1994)) (“A corporation is liable for exemplary damages if it authorizes or ratifies an

agent’s gross negligence or if it is grossly negligent in hiring any unfit agent.”).16

                  Schuster asserts that Petco approved the action of the negligent employee when it

had its employees search for Schuster’s pet. We cannot agree that Petco’s attempt to ameliorate the

consequences of its employee’s negligence is an act approving or ratifying the negligent act itself.

The mere fact that Petco employees searched for Schuster’s dog does not suggest that Petco vouched

for the employee’s act of losing the dog in the first place. Further, there is no evidence in the record

that the employees were searching for Schuster’s dog under the direction of Petco; the employees

may have been searching for Licorice on their own accord.




        16
           Corporations may also be liable for exemplary damages when a “vice principal” of the
corporation commits a grossly negligent act. The supreme court uses the term “vice principal” to
describe the kind of employee that may “act for the corporation itself”:

              . . . the term ‘vice principal’ embrac[es] [] four classes of corporate agents
             . . . : (a) Corporate officers; (b) those who have authority to employ, direct, and
             discharge servants of the master; (c) those engaged in the performance of
             nondelegable or absolute duties of the master; and (d) those to whom a master
             has confided the management of the whole or a department or division of his
             business. . . .

Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 406 (Tex. 1934), overruled on other grounds
by Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987). Schuster does not argue that the
Petco employees who lost or searched for her dog were its vice principals.

                                                     19
                Schuster also offered internet printouts from various organizations accusing Petco of

generally treating the animals it sells inhumanely and that its employees are poorly trained in animal

maintenance. This evidence is legally insufficient to show, however, that the Petco employees

involved in this case were inadequately trained or that any such deficiency caused Licorice’s escape.

                As to the breach of contract claim, exemplary damages are not recoverable for a

breach of contract, even one breached maliciously, as a matter of law. See Jim Walter Homes, Inc.

v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). We reverse Schuster’s award of exemplary damages.


Attorney’s fees

                Petco asserts in its fourth issues that the evidence does not support the district court’s

award of attorney’s fees for forty-five hours of legal work prior to taking the default judgment in this

case. Schuster could recover attorney’s fees pursuant to her breach of contract claim. See Tex. Civ.

Prac. & Rem. Code Ann § 38.001 (West 1997). However, the reasonableness of the attorney’s fees

awarded is a question of fact and must be supported by the evidence. See Grace v. Duke, 54 S.W.3d

338, 344 (Tex. App.—Austin 2001, no pet.). Clear, direct, and uncontroverted evidence of

attorney’s fees is taken as true as a matter of law. See id. The supreme court has stated eight factors

that a fact finder should consider when determining the reasonableness of a fee:


        (1) the time and labor required, the novelty and difficulty of the questions involved,
            and the skill required to perform the legal service properly;

        (2) the likelihood . . . that the acceptance of the particular employment will preclude
            other employment by the lawyer;

        (3) the fee customarily charged in the locality for similar legal services;



                                                   20
       (4) the amount involved and the results obtained;

       (5) the time limitations imposed by the client or by the circumstances;

       (6) the nature and length of the professional relationship with the client;

       (7) the experience, reputation, and ability of the lawyer or lawyers performing the
           services; and

       (8) whether the fee is fixed or contingent on results obtained or uncertainty of
           collection before the legal services have been rendered.


Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex 1997). Not all of the

factors must be considered in every case. These are general guidelines that the supreme court has

stated should be taken into account when determining the reasonableness of attorney’s fees.

               The record in the present case shows that Schuster’s attorney charged $150 per hour

for his legal work and that he worked for 45 legal hours on Schuster’s case. Petco asserts that forty-

five hours is unreasonable for work prior to a default judgment in a case concerning the death of a

dog. We disagree that the fees were unreasonable in this case. The record shows that Schuster’s

attorney drafted pleadings, prepared motions, spoke with Petco representatives and his client on

several occasions, prepared for the default judgment hearing, and performed research regarding the

availability of damages for the death of a dog. Although we view Texas law as fairly straightforward

on this issue, we note that this subject has been the focus of scholarly analysis and case law

development in other jurisdictions and that the Texas Supreme Court has recognized the complexity

of Texas law regarding mental anguish damages for the loss of property. See Likes, 962 S.W.2d 489.

We overrule Petco’s fourth issue.




                                                 21
Double recovery

               Petco asserts that the district court erred by allowing Schuster to recover damages on

both her breach of contract and tort claims. Our disposition of the preceding issues obviates this

point. Under her breach of contract theory, Schuster may recover each of the elements of damages

that remain available: replacement value, reimbursement of expenses for training and microchip

implantation, attorney’s fees, and court costs.17 See Tarleton State University v. K.A. Sparks

Contractor, Inc., 695 S.W.2d 362 (Tex. App.—Waco 1985, writ ref’d n.r.e.); Tex. Civ. Prac. &

Rem. Code Ann. § 38.001.


                                         CONCLUSION

               We reverse the district court’s award for mental anguish damages, counseling costs,

“‘intrinsic value’ loss of companionship,” lost wages and exemplary damages. We otherwise affirm

the district court’s judgment.




                                              Bob Pemberton, Justice

Before Justices Kidd, Puryear and Pemberton

Affirmed in Part; Reversed and Rendered in Part

Filed: April 29, 2004


       17
         Petco did not appeal Schuster’s award for replacement value or reimbursement for training
and microchip implantation.

                                                22
