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Click here for the full text of this decision FACTS:Carol Schuster took her 14-month-old miniature schnauzer, Licorice, to a Petco in Austin to be groomed. When she returned to the store, she saw the dog running away from the store. Petco employees and Schuster searched for Licorice for four days before finally finding that he had been run over in traffic. Licorice had apparently slipped out of his leash when a Petco employee took the dog out for a bathroom break. Schuster sued Petco, which did not answer. A trial court entered a default judgment for Schuster and presented evidence on Schuster’s unliquidated damages. The trial court awarded Schuster $500 for the replacement value of Licorice; $892 to reimburse Schuster for Licorice’s training, as well as $52 for a microchip implanted in the dog; and $857 for Schuster’s lost wages while she looked for Licorice. The trial court also awarded $160 for counseling costs, $10,000 for mental anguish and emotional distress; $10,000 as compensation for “intrinsic value” loss of companionship; $10,000 for exemplary damages. The court awarded $6,750 as attorneys’ fees, calculated at a rate of $150 per hour for 45 hours. Petco filed a notice of appeal past the 30-day deadline, but acted within the six-month period for bringing a restricted appeal on damages. HOLDING:Affirmed in part; reversed and rendered in part. The court explains that the standard of review for a restricted appeal is limited to the face of the record, but that it can also consider Petco’s challenge to the legal and factual sufficiency of the damage award. This includes not only the amount of damages awarded, but whether there was a casual nexus between those damages and incident. The court cites Heiligmann v. Rose, 16 S.W. 981 (Tex. 1891), as the case law governing the award of damages for the loss of a dog. That case said that dogs are classified as personal property, “not as persons, extensions of their owners, or any other legal entity whose loss would ordinarily give rise to personal injury damages.” Heiligmann also identified the only to elements that can be awarded under the “true rule” of damages for the loss of a dog: market value, if any, and “some special or pecuniary value to the owner that may be ascertained by reference to the usefulness and services of the dog.” In reference to the special or pecuniary value, the case refers solely to economic value derived from the dog’s usefulness and service, not value attributed to companionship or other sentimental considerations. The court says that a 1963 case from the 11th Court of Appeals, which allowed for the award of mental anguish damages, did not mention Heiligmann, nor whether the defendants ever disputed whether mental anguish damages were properly recoverable for the death of a dog. The case was distinguishable, anyway, because it involved intentional conduct, not negligence, as is alleged in this case. Schuster’s estimated the anguish she suffered ranged from between $1,000 and $20,000 per day, because she was “terror ridden” over the prospect of her dog being scared and in danger of being run over. She did not, however, say that Petco had any ill-will, animus or desire to hurt Schuster personally. The court, however, concludes that Schuster’s claim for awarding mental damages for the loss of a dog is barred by Heiligmann. And because of that ruling, the court also finds no basis for the recovery of Schuster’s counseling expenses. The court notes, however, that even if the counseling damages were allowed, Schuster’s evidence did not show the reasonableness or necessity of her counseling sessions. The court next considers whether Schuster could recover for “intrinsic value” loss of companionship, that is, damages related to sentimental, not market, value. The trial court’s award was based on Schuster’s testimony that she bought Licorice as a companion, and that the dog went with her anywhere it was allowed. Her request for $280,000 in damages was based on the dog’s life expectance of 14 years, multiplied by $20,000, the amount of salary increase Schuster would have demanded in order to induce her into accepting a job that required her to part with Licorice. The court again cites Heiligmann, which addressed the usefulness and services of the dog, to rule that Schuster could not recover damages for intrinsic value. The court takes time out to address issues raised in an amicus brief by the Animal Legal Defense Fund. The brief suggested that Heiligmann’s notion of intrinsic value was archaic. The court acknowledges the way in which pets are viewed more as family members than as work animals, but, the court says, “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.” The court finds that Heiligmann governs the award of lost wages, too. In addition, Schuster’s loss is too attenuated from Petco’s conduct. The court finds that exemplary damages are not allowable in this case, either. Schuster didn’t present any evidence of gross negligence on Petco’s part. Furthermore, exemplary damages are not recoverable in a breach of contract case (Schuster claimed Petco breached the grooming agreement). Evidence that other people around the country have complained about Petco’s treatment of animals does not support the award, the court adds, because it says nothing about the behavior of the employees in this particular case. Finally, the court rules that the attorneys’ fees were not unreasonable. The remaining awards of damages are affirmed. OPINION:Pemberton, J.; Kidd, Puryear and Pemberton, JJ.

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