[Cite as Davison v. Parker , 2014-Ohio-3277.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


DAVID DAVISON, et al.,                           :      OPINION

                 Plaintiffs-Appellants,          :
                                                        CASE NO. 2013-L-098
        - vs -                                   :

BRENT PARKER,                                    :

                 Defendant-Appellee.             :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 12 CV 001995.

Judgment: Affirmed.


Michael D. Brennan, The Law Offices of Michael D. Brennan, LLC, 5001 Mayfield
Road, Suite 301, Cleveland, OH 44124 (For Plaintiffs-Appellants).

David M. Lynch, 333 Babbitt Road, Suite 333, Euclid, OH 44123 (For Defendant-
Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellants, David Davison, Nichole Davison, and Allie Davison, a minor,

by and through her parents and legal guardians, David and Nichole Davison, appeal the

judgment of the Lake County Court of Common Pleas granting, in part, appellee, Brent

Parker’s, motion for summary judgment. On appeal, appellants assign error only with

respect to the trial court granting appellee’s motion for summary judgment on the issue

of damages. The trial court limited compensatory damages to the market value of
appellants’ dog, which was shot and killed by appellee. For the reasons that follow, we

affirm.

          {¶2}   Appellants filed a complaint against appellee for damages resulting from

the November 2011 incident.         The complaint stated that appellee shot and killed

appellants’ 14-year-old black Labrador Retriever, Thai. Appellants and appellee leased

residential households on Cottage Hill Farm, a farm property located at 7532 Chardon

Road in Kirtland, Ohio. Appellants alleged that, pursuant to consent from the landlord,

Thai was permitted to wander the property.         After being let out in the morning of

November 21, 2011, Thai did not return. Eventually, Thai was found dead in the woods;

he had been shot.

          {¶3}   A criminal investigation ensued, and appellee ultimately confessed to

killing Thai. Appellee was charged and found guilty of violations of R.C. 959.131(B),

“prohibitions concerning companion animals,” and Kirtland Codified Ordinance

672.12(A), pointing and discharging firearms in a municipality.

          {¶4}   Appellants filed the instant lawsuit seeking damages for conversion,

intentional infliction of emotional distress, negligent infliction of emotional distress,

negligence, and loss of companionship in society.        Appellants also sought punitive

damages.

          {¶5}   Appellee filed a motion for summary judgment, and appellants filed a

memorandum in opposition. The trial court granted appellee’s motion for summary

judgment with respect to appellants’ claims for negligent infliction of emotional distress,

intentional infliction of emotional distress, and loss of companionship. The trial court

denied appellee’s motion for summary judgment with respect to appellants’ claims for




                                             2
negligence, destruction of property, and punitive damages. The court’s entry contained

a specific finding under Civ.R. 54(B) that there was no just reason for delay.

       {¶6}   With respect to the issue of damages, the trial court found “that the

appropriate measure of damages in this case is market value.” The trial court reasoned

that, although appellants argue for a change in the existing law, “the Ohio legislature

has explicitly stated that dogs are personal property. R.C. 955.03.” The trial court

stated, “[a]ny decision to apply a measure of damages beyond those applicable to

personal property would contradict the legislature’s intention that dogs be treated as

personal property.”

       {¶7}   Appellants filed a timely notice of appeal and assert the following

assignment of error for our review:

       {¶8}   “The trial court committed prejudicial error in granting Defendant-Appellee,

Brent Parker’s, motion for summary judgment on the issue of damages, limiting

compensatory damages to market value of the Plaintiff-Appellants’ companion animal.”

       {¶9}   We review a trial court’s decision(s) on a motion for summary judgment de

novo. U.S. Bank Natl. Assn. v. Martz, 11th Dist. Portage No. 2013-P-0028, 2013-Ohio-

4555, ¶10, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary

judgment is proper when (1) the evidence shows “that there is no genuine issue as to

any material fact” to be litigated, (2) “the moving party is entitled to judgment as a matter

of law,” and (3) “it appears from the evidence * * * that reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence * * *

construed most strongly in the party’s favor.” Civ.R. 56(C).




                                             3
       {¶10} At the outset, we note that appellants have neither assigned error nor

made any argument with respect to the trial court’s granting of appellee’s motion for

summary judgment on appellants’ claims of negligent infliction of emotional distress,

intentional infliction of emotional distress, and loss of companionship.    On appeal,

appellants argue only that market value is not the appropriate measure of damages in

this case because appellee deprived appellants of their companion, the value of which

cannot be measured in terms of market value. Appellants distinguish Thai, whom they

classify as a “special companion animal,” from inanimate property.

       {¶11} Although appellants cite to case law from our sister states that have

rejected market value of a dog as the appropriate measure of damages, these cases

are not applicable. The current law in Ohio classifies “animals as personal property and

does not recognize noneconomic damages for personal property. While such a change

in the law may one day occur, this is not the proper forum for such change.” Sokolovic

v. Hamilton, 195 Ohio App.2d 406, 2011-Ohio-4638, ¶14 (8th Dist.). “Market value is a

standard to guide the court in the valuation of personal property loss.” McDonald v.

Ohio State Univ. Veterinary Hosp., 67 Ohio Misc.2d 40, 41 (Oct. 11, 1994), citing

Bishop v. E. Ohio Gas Co., 143 Ohio St. 541, 546 (1944). Additionally, R.C. 955.03,

entitled “dogs are personalty,” provides: “Any dog which has been registered under

sections 955.01 and 955.04 of the Revised Code and any dog not registered under

such sections shall be considered as personal property and have all the rights and

privileges and be subject to like restraints as other livestock.”

       {¶12} In McDonald, supra, the court deviated from market value in awarding the

dog owner damages in the amount of $5,000. A German Shepherd pedigree dog,




                                              4
Nemo, suffered from irreversible paralysis as a result of surgery performed by the

veterinary hospital; the owner was eventually forced to euthanize Nemo. Id. at *41.

The court recognized that dogs are considered personal property under Ohio law, and

thus, market value is typically the standard when assessing damages. Id. at *42. Yet,

the court in McDonald stated this “‘is a standard not a shackle. When market value

cannot be feasibly obtained, a more elastic standard is resorted to, sometimes called

the standard of value to the owner.’” Id., citing Bishop, supra, at 546. The court utilized

this standard with respect to Nemo because of his uniqueness, time spent in training,

and unavailability in the open market, as well as the owner’s potential loss from stud

fees. Id.

       {¶13} The classification of a dog as personal property is statutory, and we must

abide by that classification. The market-value limitation on damages is derived from the

common law.      See Agorianitis, Being Daphne’s Mom: An Argument for Valuing

Companion Animals as Companions, 39 J. Marshall L. Rev. 1453, 1455 (2006)

(commenting that companion animals were originally considered valueless at common

law; however, case law has allowed for limited recovery vis-à-vis the market value of the

particular animal). We agree that the common law limitation of damages could, under

appropriate facts such as in McDonald, be expanded for particularized pecuniary loss.

The facts here demonstrate conduct by appellee that is outrageous and deplorable.

The facts, however, do not demonstrate a particularized and identifiable pecuniary loss.

There is no evidence in the record of the type of losses established in McDonald. While

we appreciate the subjective value of Thai to appellants and their emotional attachment

to him, the law simply does not consider sentimentality as “a proper element in the




                                            5
determination of damages caused to animals.” McDonald, supra, at *42. Appellants’

sole assignment of error is without merit.

       {¶14} The judgment of the Lake County Court of Common Pleas is hereby

affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




                                             6
