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The Texas 3rd Court of Appeals ruled recently that a more than 100-year-old Texas Supreme Court decision established principles that prevent a woman’s recovery of damages for emotional distress she suffered when her dog was run over and killed after escaping from a groomer. Under the Supreme Court’s 1891 ruling in Heiligmann v. Rose, dogs are classified as personal property for which an owner can recover damages based on market value and any special economic value that an owner derives from a dog’s usefulness. Heiligmann remains the law today, 3rd Court Justice Bob Pemberton wrote for the court in Petco Animal Supplies Inc. v. Carol Schuster. Justices Mack Kidd and David Puryear joined Pemberton in the April 29 decision. “Dogs are property — that is well-established law,” says Christian von Wupperfeld, an associate with Fletcher & Springer in Austin and one of the attorneys representing Petco. “Texas law does not permit mental anguish awards for loss of property,” says von Wupperfeld, who worked on the case with William W. Kruger III, a partner in the Dallas office of Fletcher & Springer. Joyce Tischler, an attorney and executive director of the Animal Legal Defense Fund (ALDF), doesn’t dispute that dogs are property. But dogs are “a special sort of property” that can feel pain, that can be killed and that are companions to humans who suffer when their dogs are killed, Tischler says. Schuster had “a very special relationship” with Licorice, a miniature schnauzer, Tischler says. In the amicus brief, ALDF argued that damages for a companion animal should be measured in terms of the animal’s actual — not just its market — value to its owner. “I’m saddened, but I’m amused that the Texas court of appeals relies on a case that was written before the invention of the gas-fueled automobile,” says Tischler, whose nonprofit group filed an amicus curiae brief in Petco. At the time Heiligmann was written, Tischler says, there were no child labor laws and the airplane had not been invented. “Times have changed and so must we,” she says. Austin solo Sergei Kachura, who represents Schuster, says his client does not plan to appeal the decision to the state Supreme Court. “I’m unhappy about this decision, but it seems to be consistent with recent [Supreme Court] decisions regarding emotional distress,” Kachura says. LOSING LICORICE According to the 3rd Court’s opinion, Schuster sued Petco in March 2003. Licorice had been killed about two months earlier. Petco did not answer the suit, and Schuster took a default judgment against the company, according to the opinion. After Judge Darlene Byrne, of Austin’s 126th District Court, awarded Schuster $47,155 plus attorney fees, Petco filed an appeal. According to the 3rd Court opinion, Schuster testified in a hearing before Byrne that Licorice’s replacement value was $500 and that she had incurred $892 in expenses to train the dog, $52 for microchip implantation to identify the dog if it became lost, and about $858 in lost wages while searching for the dog. Schuster also testified that she experienced $645,000 in mental anguish while searching for Licorice and after learning of the dog’s death and asked the district court to award $280,000 in damages for the loss of the dog’s companionship and $1 million in exemplary damages. Although Byrne “expressed skepticism” that any damages beyond replacement value for Licorice were properly recoverable, she awarded $10,000 each for Schuster’s mental anguish, loss of Licorice’s companionship and punitive damages, Pemberton wrote. Byrne also awarded Schuster $858 in lost wages and $160 for counseling Schuster received after Licorice’s death, according to the opinion. Pemberton wrote that Heiligmann did not squarely address whether mental anguish damages are available for the loss of a dog. However, Pemberton noted that El Paso’s 8th Court of Appeals held in 1997′s Zeid v. Pearce that “this longstanding Texas rule” established in Heiligmann barred recovery of mental anguish damages for the loss of a dog in a case where veterinary negligence was alleged. Schuster argued in a brief filed with the 3rd Court that Texas courts have allowed an owner to recover damages for pain and suffering for a dog’s wrongful injury or killing since a 1963 decision by the 11th Court of Appeals in City of Garland v. White. According to the 3rd Court’s opinion, it was unclear whether the defendants in White ever disputed whether mental anguish damages were properly recoverable for the death of a dog. Kachura says the Supreme Court refused to review White, finding that there was no reversible error. According to the 3rd Court’s opinion, White and Petco are distinguishable. While White involved the alleged intentional, premeditated shooting of a dog, the plaintiff in Petco alleges — at most — gross negligence on Petco’s part, Pemberton wrote. The state Supreme Court, addressing property damage cases generally, held in City of Tyler v. Likes that mental anguish damages are not recoverable for negligent property damage as a matter of law, according to the 3rd Court’s opinion. Heiligmann and its progeny also prevent Schuster from recovering intrinsic value damages for the loss of Licorice as a beloved companion, Pemberton wrote. The rule established in Heiligmann permits recovery of a dog’s “special or pecuniary value,” ascertained solely by reference to the dog’s usefulness and services to the owner, according to the 3rd Court’s opinion. The 3rd Court also concluded that Heiligmann precludes Schuster’s recovery for lost wages and that punitive damages were not proper in Petco. For Schuster to recover punitive damages, she would have to show that the harm she suffered was caused by fraud or malice on the part of Petco and that the grossly negligent act that she alleged was committed by the corporation, not an employee, according to the opinion. The decision whittles Schuster’s total recovery down to about $11,600. That figure includes $9,250 for Schuster’s attorney fees.

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