                           FIRST DIVISION
                            PHIPPS, C. J.,
                   ELLINGTON, P. J., and MCMILLIAN, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                    March 30, 2015




In the Court of Appeals of Georgia
 A14A1960, A14A1961. BARKING HOUND VILLAGE, LLC et al.
     v. MONYAK et al.; and vice versa.

      PHIPPS, Chief Judge.

      These appeals arise out of a claim for damages for the death of a dog (a mixed-

breed daschund) owned by Robert and Elizabeth Monyak. In 2012, the Monyaks

boarded their two dogs (the daschund and a mixed-breed labrador retriever) for

approximately ten days at a kennel owned and operated by Barking Hound Village,

LLC (hereinafter the “BHV”) and managed by William Furman. Three days after the

Monyaks picked up their dogs, the daschund was diagnosed with acute renal failure.

It received kidney dialysis treatments to treat the condition, and died approximately

nine months later, in March 2013.
      The Monyaks filed suit against BHV and Furman for damages, alleging that

while boarded at the kennel, the daschund was administered toxic doses of a non-

steroidal, anti-inflammatory medication which had been prescribed to the labrador

retriever, not the daschund. The Monyaks had left the medication at the kennel, with

directions to administer it to the labrador retriever. The Monyaks alleged various

claims of negligence by BHV and Furman, and they sought compensatory damages,

including over $67,000 in veterinary and other expenses allegedly incurred in treating

the daschund. The Monyaks also alleged fraud and deceit, and they sought damages

for litigation expenses as well as punitive damages.

      BHV and Furman filed a motion for summary judgment with regard to all the

Monyaks’ claims. The trial court issued an order denying the motion, except as to

fraud; the trial court granted summary judgment as to the fraud claim.

      We granted the application for interlocutory appeal by BHV and Furman, and

they timely filed a notice of appeal (Case No. A14A1960), challenging the partial

denial of their motion for summary judgment and the trial court’s ruling as to the

appropriate measure of damages for the loss of the dog. Thereafter, the Monyaks filed

a cross-appeal (Case No. A14A1961), challenging the grant of summary judgment to

BHV and Furman on the fraud claim.

                                          2
                                 Case No. A14A1960

      1. BHV and Furman contend that the trial court erred in partially denying their

motion for summary judgment. The trial court ruled as follows.

      At trial, [the Monyaks] will be permitted to present evidence of the
      “actual value” of [the daschund] to them, as demonstrated by reasonable
      veterinary and other expenses incurred in treating [the daschund’s]
      illness. In addition, [the Monyaks] may introduce evidence of non-
      economic factors demonstrating [the daschund’s] intrinsic value. . . . The
      Court is mindful of the caveat expressed by the Court of Appeals in
      Cherry[1] that purely “fanciful” factors should not be considered.


BHV and Furman assert that the proper measure of damages was the market value of

the daschund, and that since the Monyaks failed to introduce such evidence, they

(BHV and Furman) were entitled to judgment as a matter of law with regard to the

negligence claims.

              Summary judgment is proper when there is no genuine issue of
      material fact and the movant is entitled to judgment as a matter of law.[2]
      To prevail on a motion for summary judgment, the moving party must
      show that there is no genuine dispute as to a specific material fact and
      that this specific fact is enough, regardless of any other facts in the case,


      1
          Cherry v. McCutchen, 65 Ga. App. 301, 304 (16 SE2d 167) (1941).
      2
          OCGA § 9-11-56 (c).

                                           3
      to entitle the moving party to judgment as a matter of law. When a
      defendant moves for summary judgment as to an element of the case for
      which the plaintiff, and not the defendant, will bear the burden of proof
      at trial, the defendant may show that he is entitled to summary judgment
      either by affirmatively disproving that element of the case or by pointing
      to an absence of evidence in the record by which the plaintiff might
      carry the burden to prove that element. And if the defendant does so, the
      plaintiff cannot rest on his pleadings, but rather must point to specific
      evidence giving rise to a triable issue. We review a grant or denial of
      summary judgment de novo and construe the evidence in the light most
      favorable to the nonmovant. Because this opinion addresses
      cross-motions for summary judgment, we will construe the facts in favor
      of the nonmoving party as appropriate.3


      The parties do not dispute that, in Georgia, a dog is considered property.4 “In

a suit for damages to personal property, the measure of damages is the market value

of the property before and after the damage to such property.”5

      3
        Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 283 (763 SE2d 899)
(2014) (citations omitted).
      4
          See Columbus Railroad Co. v. Woolfolk, 128 Ga. 631, 632 (58 SE 152)
(1907).
      5
         Southern Railway Co. v. Malone Freight Lines, Inc., 174 Ga. App. 405, 410
(3) (330 SE2d 371) (1985) (citation omitted); see Driggers v. Atlanta Gas Light Co.,
97 Ga. App. 502, 503 (103 SE2d 586) (1958) (citations omitted) (“In order for a
petition, on whatever basis founded -- whether sounding in contract or tort, to fix
liability upon one who negligently damages the plaintiff’s personalty, it must show

                                          4
      If [personal] property is destroyed, then the damages would be the full
      market value of the property at the time of the impairment or loss, and
      . . . further recovery would be barred as exceeding the maximum that is
      otherwise allowable. . . . [A] plaintiff cannot recover an amount of
      damages against a tortfeasor greater than the fair market value of the
      property prior to the impairment.6


      The Monyaks argued, and the trial court agreed, that since Georgia courts have

recognized an alternative measure of damages for certain items which have little or

no market value but which have substantial personal value to the owner, that

alternative measure of damages – the “actual value to the owner” – should be applied

in this case since the daschund had little or no market value.

      Where the absence of a market value is shown, “the measure of damages for

the loss of articles which have no market value is the actual value to the owner.”7 Not

all dogs have an actual commercial or market value.8 The Monyaks presented


that the personalty had value, and what the market value of the personalty was
immediately prior and subsequent to the event that caused the damages.”) (physical
precedent only).
      6
       MCI Communications Svcs. v. CMES, Inc., 291 Ga. 461, 463-464 (728 SE2d
649) (2012) (citations and punctuation omitted).
      7
          Cherry, supra, 65 Ga. App. at 304.
      8
          See Columbus Railroad Co., supra at 635.

                                           5
evidence showing that the daschund had little or none. Elizabeth Monyak deposed

that they had obtained the dog from a rescue center, and that the dog was about eight

years old at the time of boarding. Elizabeth Monyak averred by affidavit that they had

adopted the dog when it was about two years old, that there was no purchase price for

the dog, that it was not a pure breed, that it was never a “show” dog and never

generated any revenue, that nothing had occurred during their ownership of the dog

that would have increased its market value to the public at large, and that at the time

they had boarded the dog at the kennel, the value of the dog to the public was “non-

existent or nominal.”9

      In Cherry, upon which the trial court relied, the nonmarketable item, and the

item with regard to which the trial court determined the appropriate measure of

damages was the actual value to the owner, was a painting by the plaintiff’s mother,

who had died when the plaintiff was two years old.10 The trial court in the instant case

cited in its order other cases which it found applied the Cherry “actual value to



      9
       Community Bank v. Handy Auto Parts, Inc., 270 Ga. App. 640, 643 (1) (607
SE2d 241) (2004) (“One need not be an expert or dealer in the article in question but
may testify as to its value if he has had an opportunity for forming a correct
opinion.”) (punctuation and footnote omitted).
      10
           Cherry, supra, 65 Ga. App. at 302.

                                           6
owner” rule as the measure of damages. But none of those cases involved dogs or

other household pets;11 and one case involved realty, unlike this case.12

Notwithstanding, in two of the cases the determination of the value of damaged or

destroyed property was by a measure other than market value, and in an amount

which may have exceeded any market value.13 Accordingly, the trial court did not err

in its ruling that it would permit the Monyaks to present evidence at trial of the actual

value of the dog to them “as demonstrated by reasonable veterinary and other

expenses incurred in treating [the dog’s] illness.”


      11
         Dept. of Transp. v. Vest, 160 Ga. App. 368, 369-370 (2) (287 SE2d 85)
(1981) (when the Department of Transportation condemned property which must be
duplicated for a business to survive, and there was no substantially comparable
property within the area, then the loss to the forced seller was such that market value
did not represent just and adequate compensation to him); Horton v. Ga. Power Co.,
149 Ga. App. 328-329, 331 (254 SE2d 479) (1979) (damages recoverable for the
destruction of a utility pole belonging to a power company and having value only as
an integral part of a complete distribution system was the replacement cost, which
was more than the original purchase price); NEDA Constr. Co. v. Jenkins, 137 Ga.
App. 344-345, 350 (4) (223 SE2d 732) (1976) (where construction company and
telephone company caused structural damage to a historic home, monetary award
returned by jury to repair the house was not “disproportionate or absurd” where costs
for repair of the house were less than its complete replacement, but more than its
market value).
      12
           Dept. of Transp. v. Vest, supra.
      13
         Horton, supra (replacement cost recoverable); NEDA Constr. Co., supra
(repair costs recoverable).

                                              7
      We conclude, however, that the trial court erred in its ruling that the Monyaks

could introduce evidence of “non-economic factors demonstrating [the dog’s]

intrinsic value.” In coming to that conclusion, the trial court cited Cherry for the

proposition that flexibility as to the measure of damages was authorized and evidence

of “such other considerations as in the particular case affect its value to the owner,”

was permitted. The full passage which the trial court cited from Cherry reads: “The

just rule of damage [when the article sued for is not marketable property] is the actual

value to him who owns it, taking into account its cost, the practicability and expense

of replacing it, and such other considerations as in the particular case affect its value

to the owner.”14

      In Cherry,15 the “other considerations” evidence was the plaintiff’s testimony

that before he found out that the portrait was missing, he had built his house with a

particular area of it constructed with dimensions to display the portrait, and that his

wife, likewise, had purchased decor for the room of the house where the portrait

would be displayed based on the colors in the portrait.16 This court specifically stated


      14
           Cherry, supra, 65 Ga. App. at 303 (citations and punctuation omitted).
      15
           68 Ga. App. 682 (23 SE2d 587) (1942).
      16
           Id. at 692.

                                           8
that the trial court had not erred in permitting the introduction of the aforesaid

evidence “for the purpose of showing the value of the picture.”17

      The evidence in Cherry was not non-economic; and in this case, the trial court

misquoted Cherry when it stated that Cherry had cautioned that “purely ‘fanciful’”

factors should not be considered when the measure of damages applied is the actual

value to the owner. In Cherry, the court held unequivocally that the measure of

damages “must not be any fanciful price that [the owner] might for special reasons

place upon them,” and that “there can be no recovery for the sentimental value of the

lost article.”18 Accordingly, damages for the intrinsic value of the dog are not

recoverable, and we reverse the trial court’s judgment that the Monyaks would be

permitted at trial to introduce evidence of non-economic factors demonstrating the

dog’s intrinsic value.19




      17
           Id.
      18
           Cherry, supra, 65 Ga. App. at 304 (punctuation omitted; emphasis supplied).
      19
        See generally NEDA Constr. Co., supra (recoverable repair costs which
exceeded market value were “definite and ascertainable”).

                                           9
                                Case No. A14A1961

      2. The Monyaks contend that the trial court erred in granting summary

judgment in favor of BHV and Furman on the Monyaks’ fraud claim. We disagree.

In their complaint, the Monyaks claimed that BHV concealed the alleged medication

error and destroyed evidence, and that such acts constituted actionable fraud.

      “The elements of fraud are: false representation by the defendant, scienter,

intent to induce the plaintiff to act or refrain from acting, plaintiff’s justifiable

reliance on the false representation and damages to the plaintiff.”20 “To establish

fraud, the claimant must also show that it sustained the alleged loss and damage as

the proximate result of the misrepresentations having been made.”21

      Because the acts upon which the Monyaks’ fraud claim rests allegedly occurred

after their dog had been injured, the injury was not the proximate result of the acts.

Moreover, the evidence did not show that BHV and Furman had actual knowledge

prior to the day the Monyaks picked up the dogs that the daschund had been

administered medication that was not prescribed for it during its stay at the kennel,

      20
         Tankersley v. Barker, 286 Ga. App. 788, 790 (1), n. 1 (651 SE2d 435) (2007)
(citation omitted).
      21
          Nebo Ventures, LLC v. NovaPro Risk Solutions, L. P., 324 Ga. App. 836, 842
(1) (e) (752 SE2d 18) (2013) (citation and punctuation omitted; emphasis supplied).

                                         10
such that the kennel and Furman could have sought treatment for the dog. And the

evidence showed that the Monyaks took the daschund to its veterinarian the day after

they picked up the dog from the kennel.

      Although the trial court’s summary judgment decision on the [fraud
      claim] was based on . . . different legal theor[ies], that [the claim was
      duplicative and based on spoliation], we will affirm the judgment of the
      trial court if it is right for any reason. A grant of summary judgment
      must be affirmed if right for any reason, whether stated or unstated. It is
      the grant itself that is to be reviewed for error, and not the analysis
      employed.22


Accordingly, the trial court did not err in granting summary judgment to BHV and

Furman on the fraud claim.

      Judgment affirmed in part and reversed in part, and case remanded in Case

No. A14A1960; Judgment affirmed in Case No. A14A1961. McMillian, J., concurs.

Ellington, P. J., concurs in judgment only.




      22
        Dan J. Sheehan Co. v. Fairlawn on Jones Homeowners Assn., 312 Ga. App.
787, 790 (1), n. 11 (720 SE2d 259) (2011) (citation and punctuation omitted).

                                          11
