Cause No.

12-0047

FILED IN THE SUPREME COURT OF TEXAS 12 July 9 P5:24 BLAKE. A. HAWTHORNE CLERK

________________________________________________________________________ IN THE SUPREME COURT OF TEXAS ________________________________________________________________________ CARLA STRICKLAND, Petitioner v. KATHRYN AND JEREMY MEDLEN Respondents ________________________________________________________________________ On Petition for Review from the Second Court of Appeals in Fort Worth, Texas No. 02-11-00105-CV ________________________________________________________________________ RESPONDENTS BRIEF ON THE MERITS ________________________________________________________________________

RANDALL E. TURNER SBN: 20328310 BAILEY & GALYEN 1901 Airport Freeway Bedford, Texas 76021 Tel: 817-359-7065 Fax: 817-764-6336 Email: rturner@galyen.com

SONDREA J. KING SBN: 24003728 SUSAN BLEIL SBN: 14056720 LAW OFFICE OF BLEIL & KING 5012 Birch Hollow Lane Fort Worth, Texas 76132 Telephone: 817.680.0228

COUNSEL FOR RESPONDENTS

ORAL ARGUMENT IS REQUESTED

Cause No. 12-0047

________________________________________________________________________ IN THE SUPREME COURT OF TEXAS ________________________________________________________________________ CARLA STRICKLAND, Petitioner v. KATHRYN AND JEREMY MEDLEN, Respondents ________________________________________________________________________ On Petition for Review from the Second Court of Appeals in Fort Worth, Texas No. 02-11-00105-CV ________________________________________________________________________ RESPONDENTS BRIEF ON THE MERITS ________________________________________________________________________ To the Honorable Supreme Court of Texas: Come now Kathryn and Jeremy Medlen, Respondents in the above-entitled and numbered cause, and submit this brief on the merits as requested by the Court.

Kathryn and Jeremy Medlen are hereinafter referred to collectively as the Medlens. Carla Strickland is hereinafter referred to as Strickland. The Clerks Record will be referred to as CR __. Carla Stricklands Amended Petition for Review will be referred to as Pet. __; her Brief on the Merits will be referred to as Brief __.

TABLE OF CONTENTS Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vii Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Issue One: May Texas personal property owners seek recovery for the wrongful destruction of their property, where that property has little or no market value? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Issue Two: Should this Court accept Stricklands invitation to create an exception that bars Texas personal property owners from seeking redress in the courts where their destroyed property was a dog? . . . . . . . . . . . . . . . . . . . . . . . 1 Issue Three: Did Section 101.106(f) of the Texas Civil Practice and Remedies Code bar the court of appeals from deciding the merits of the Medlens appeal? . . . .9 Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

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INDEX OF AUTHORITIES Cases Antonio v. Bailey, 332 S.W.3d 395 (Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix, 5, 6, 7 City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix, 6, 7 Dunnagan v. Watson, 204 S.W.3d 30 (Tex. App. Fort Worth 2006, pet. denied). . . . . . . . . . . . . . . . .8, 9 Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 10 Garey Constr. Co., Inc. v. Thompson, 697 S.W.2d 865 (Tex. App.Austin 1985, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 8 Heiligmann v. Rose, 81 Tex. 22, 16 S.W. 931 (Tex. 1891). . . . . . . . . . . . . . . . . . . . . . . . . .v, 1, 2, 3, 4, 5 Lucas v. Morrison, 286 S.W.2d 190 (Tex. Civ. App. 1956, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Medlen v. Strickland, 353 S.W.3d 576 (Tex. App.Fort Worth 2011, pet. filed). . . . . . . . . . . . . . vi, viii,7 Mission Consol. Indep. School Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Patterson v. Planned Parenthood, 971 S.W.2d 439 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.Austin 2004, no pet.). . . . . . . . . . . . . . . . . . . . . v, 3, 4 Porras v. Craig, 675 S.W.2d 503 (Tex. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
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Ramsey v. Hurley, 72 Tex. 194, 12 S.W. 56 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 University of Texas Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544 (Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Statutes, Codes, and Rules TEX. CIV. PRAC. & REM. CODE. 101.106(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi, 9 TEX. GOVT CODE 22.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v

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STATEMENT OF JURISDICTION The Medlens respectfully submit that this Court should decline to exercise its discretion to review this case under Texas Government Code Section 22.001. Although Strickland raises a myriad of arguments to persuade this Court to do so, none of those grounds presents a compelling reason to grant the petition for review. First, the Fort Worth court of appeals decision does not conflict with this Courts decision in Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891). Heiligmann specifically stated that special damages are recoverable for the negligent destruction of a dog. 81 Tex. at 226, 16 S.W. at 932. Other cases cited by Strickland in support of her argument are inapplicable here because they state only the general rule for the measure of damages to personal property, without regard to property that has its primary value in sentiment. Second, the Austin Court of Appeals decision in Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.Austin 2004, no pet.), which Strickland repeatedly contends got it right, is contrary to well-settled Texas property law. Nothing in

Heiligmann or any subsequent case from this Court limits the rights of a dog owneras opposed to owners of other types of personal propertyto sue only for the market or pecuniary value of his property. Third, the court of appeals decision does not create a new cause of action that allows dog owners to sue for loss of companionship or allow dog owners to recover
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mental anguish damages. The Medlen court simply applied existing Texas property law to elucidate the types of damages that owners may seek for the destruction of their dog. The Medlens respectfully request that this Court decline to exercise its jurisdiction and deny Stricklands Amended Petition for Review.

ISSUES PRESENTED Issue One: May Texas personal property owners seek recovery for the wrongful destruction of their property, where that property has little or no market value?

Issue Two: Should this Court accept Stricklands invitation to create an exception that bars Texas personal property owners from seeking redress in the courts where their destroyed property was a dog?

Issue Three: Did Section 101.106(f) of the Texas Civil Practice and Remedies Code bar the court of appeals from deciding the merits of the Medlens appeal?

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STATEMENT OF THE FACTS On June 2, 2009, Kathryn and Jeremy Medlens dog escaped from their backyard and was picked up by Fort Worth animal control. [CR at 27] Jeremy went to the animal shelter to retrieve the dog, but did not have enough money to pay the fees. He was told he could return on June 10 to get the dog. [CR 27] A hold for owner tag was placed on the cage notifying employees that the Medlens were going to return for him. [CR 27] On June 6, Carla Strickland, a shelter employee, made a list of animals that were to be euthanized the following day. [CR 27] She placed the Medlens dog on that list even though he had a hold for owner tag on his cage. [CR 27] The dog was euthanized the following day. [CR 27] After learning that their dog had been destroyed, the Medlens filed suit against Strickland, alleging that her negligence proximately caused the death of their dog. [CR 27] Their pleadings stated that the dog had little or no market value and could not be replaced, his intrinsic value was far greater than any market value he may have had, and that they sought recovery for the dogs intrinsic value. [CR 28] Strickland specially excepted to the Medlens claim for intrinsic value damages on the ground that such damages are not recoverable for the death of a dog. [CR 32, 34] The trial court granted Stricklands special exception and dismissed the Medlens lawsuit with prejudice. [CR 60] The Medlens timely appealed. [CR 61]

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The court of appeals held that because Texas law permits recovery for the intrinsic or sentimental value of personal property, the trial court erred in dismissing the Medlens case against Strickland. Medlen v. Strickland, 353 S.W.3d 576, 581 (Tex. App.Fort Worth 2011, pet. filed). The court sustained the Medlens sole issue on appeal and remanded the case to the trial court. Id. The court of appeals declined to address Stricklands cross-point, stating Because we have sustained the Medlens sole issue and are remanding the case to the trial court on that basis, we do not need to reach Stricklands cross-point seeking the same relief of remand. Id.

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SUMMARY OF THE ARGUMENT This case has nothing to do with mental anguish damages. This case does not create a new cause of action in Texas for loss of companionship after the death of a pet. This caseplainly and simplyis about whether Texas property owners are entitled to seek intrinsic damages for the destruction of personal property where that property has little or no market or pecuniary value. This Court has repeatedly answered this issue in the affirmative. City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex. 1997) (proper measure of damages for damaged personal property with small or no market value was loss in value to owner); Porras v. Craig, 675 S.W.2d 503, 506 (Tex. 1984) (remand of case to allow real property owner to present evidence of intrinsic value damages); Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 304-05 (Tex. 1963) (personal property owner entitled to reasonable special value of destroyed property, taking into account feelings of the owner for such property).

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ARGUMENT Issue One: May Texas personal property owners seek recovery for the wrongful destruction of their property, where that property has little or no market value?

Issue Two: Should this Court accept Stricklands invitation to create an exception that bars Texas personal property owners from seeking redress in the courts where their destroyed property was a dog?

Issues One and Two are discussed together for brevity and clarity of the argument. Texas dog owners have had a cause of action when someone negligently kills their dog for more than a century. Heiligmann, 81 Tex. at 222, 16 S.W. at 932. No case from this Court has stated otherwise in the 100+ years since Heiligmann was decided. Nevertheless, Strickland seeks this Courts pronouncement that dog ownersunlike other property owners in Texascannot seek recovery for the destruction of their property. Relying on speculative public policy considerations, Strickland asks this Court to hold that where a dog has little or no market value, its owner has no remedy for its wrongful destruction. However, doing so would render meaningless this Courts

declaration in Heiligmann that:

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The law recognizes a property in dogs, and for a trespass and infraction of this right the law gives the owner his remedy. The wrong-doer cannot escape the consequences of his acts by saying You have suffered no damages, for the law implies that some damages result from every illegal trespass or invasion of anothers rights. Id. at 225-26, 16 S.W. at 932 (emphasis added). In Heiligmann, this Court pronounced what is commonly referred to as the true rule applicable in determining the value of dogs: 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. Heiligmann, 81 Tex. at 226, 16 S.W. at 932 (emphasis added). Strickland dutifully recites the above statement of this Court. However, she seeks to distort Heiligmanns clear language and in doing so, to craft a rule more favorable to her. Because the courts are charged with adjudicating cases based on the application of the law to the facts before them, such a broad pronouncement is unwarranted. See, e.g. Patterson v. Planned Parenthood, 971 S.W.2d 439, 443 (Tex. 1998). Yet Strickland erroneously concludes that, [I]t is clear that when the [Heiligmann] Court mentioned special or pecuniary value of a dog to its owner, it was referring to economic value ascertained by reference to the dogs usefulness or services not value attributed to companionship or other sentimental considerations. [Brief @ p. 10, n. 11] A careful reading of Heiligmann exposes the logical gaps in Stricklands argument. The facts of that case show that Heiligmann purportedly poisoned the Roses' three dogs.
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Most of the Court's opinion addresses Heiligmann's complaints of jury charge error. The Court then turns to the sufficiency of evidence to support the jury's verdict awarding the Roses $25 for the loss of each dog, as well as $75 in exemplary damages. Id. at 225, 16 S.W. at 932. Heiligmann argued that the dogs had no market or pecuniary value to the owners. This Court rejected Heiligmann's argument and instead considered the Roses' testimony concerning the value of the dogs to them. One of the dogs barked to alert the owners when someone approached the house. Mrs. Rose testified that she could have sold the other two dogs for $5 each, but would not have taken $50 each for them. Id. The issue before this Court in Heiligmann was the propriety of the jury's verdict. It appears that the jury listened to the evidence presented and arrived at a reasonable amount to compensate the Roses for the loss of their dogs. Here, Strickland contends that the Medlens are not entitled to seek such remedy because to allow them to do so will have untold dire consequences. In so arguing, Strickland relies heavily on the Austin court of appeals decision in Petco, particularly its discussion of the true rule of the Heiligmann case, set out above. With all due respect to the Petco court, its analysis and application of Heiligmann is misguided. In Petco, the trial court awarded the plaintiff intrinsic value damages after her dog escaped from a groomer and was run over. 144 S.W.3d at 557. The court of appeals reversed, holding that under Heiligmann, plaintiffs could only sue for the market value of

the dog, if any, or some special or pecuniary value to the owner, that may be ascertained by reference to the usefulness and services of the dog. The Petco court further concluded that 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. Id. at 561 (emphasis added). Both the Petco court and Strickland assume that, in Heiligmann, "pecuniary value" and "special value" have the same meaning, and that the absence of the words "intrinsic" or "sentimental" in that decision precludes recovery for those types of damages. This conclusion is wrong. Reading Heiligmann in conjunction with the authorities cited

therein, that case cannot reasonably be interpreted as limiting a dog owners recovery to only market value or pecuniary damages. In setting out the substantially true rule for the valuation of a dog, Heiligmann relied on Ramsey v. Hurley, 72 Tex. 194, 12 S.W. 56 (1888). In Ramsey, the Court held that owners of property with no market value could still seek the intrinsic value of their property by showing what the property was worth to them. Id. By citing Ramsey in this context, the Court in Heiligmann meant for special value to include any intrinsic value the property may have had to the owner because of any particular circumstance or relation.

Thus, the plain language of the Courts decision in Heiligmann did not limit plaintiffs recovery to only those damages based on the dogs usefulness and services. Although there was evidence that only one of the dogs had a skill that provided some usefulness or service to the plaintiffs (barking when someone approached the house), the Court nevertheless permitted recovery for the loss of each of the dogs in excess their market value. In doing so, the Court observed that although there 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 have a special value to the owner. Pecuniary damages and special damages are not the same thing; Heiligmann clearly distinguishes between the two. More recently, this Court has held that where the property at issue has little or no market value but has its primary value in sentiment the owner may seek to recover the reasonable special value of the item. See e.g., Brown, 369 S.W.2d at 304-05. No case from this Court has stated otherwise in the 100+ years since Heiligmann was decided. Thus, the decisions of this Court, viewed collectively, establish that the true rule is not limited to the dogs market or pecuniary value, but also allows for recovery of any reasonable special value the dog may have had to its owner. By way of example, consider this scenario: What if the property that was destroyed was the taxidermied body of a dog? The stuffed body almost certainly has no market value, and, being dead, presumably has no value from usefulness or services so as to
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assign a pecuniary value. Yet Texas law would permit the owner to sue for special damages for the destruction of this property. Brown, 369 S.W.2d at 304-05. So what reasonable application of the law allows a suit for damages for the loss of inanimate personal property but not the destruction of the same property while it is alive? To circumvent this absurd result, Strickland impermissibly narrows this Courts holding in Heiligmann. She then misconstrues recent property rights cases from this Court and distorts the court of appeals Medlen opinion until it is virtually unrecognizable. Specifically, Strickland contends that the court of appeals ignored the Heiligmann case, and in doing so, created a new cause of action that permits dog owners to recover for the loss of their pets comparable to what they would be entitled to recover for the loss of a spouse, parent, or child. [Brief @ xv] Strickland also argues that the courts decision impermissibly allowed mental anguish damages for negligent damage to personal property. Stricklands reliance on out-of-context quotes from Brown and Likes to support her arguments is so misplaced as to border on disingenuous. In Brown, the relevant issue before this Court was the lack of evidentiary support for the trial court's award of damages for the loss of certain personal property. 369 S.W.2d at 304-05. The Court recited that the most fundamental rule of damages that every wrongful injury or loss to persons or property should be adequately and reasonably compensated requires the allowance of damages in compensation for the reasonable special value of such items to their owner
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taking into consideration the feelings of the owner for such property. Id. at 305 (emphasis added). This Court then reversed the award of special damages because there was no evidentiary support for those damages. Nothing in Brown supports Stricklands overly broad interpretation of it. Strickland similarly misstates the effect of this Court's opinion in Likes. 962

S.W.2d 469. The question before this Court in Likes was the propriety of mental anguish damages for personal property destroyed when the Likes house flooded. See id. at 49799. Because mental anguish damages are not an issue in this case, Strickland's reliance on bits and pieces of specific language in Likes is neither relevant nor persuasive. Stricklands interpretation of the appellate courts decision in Medlen misses the mark as well. The Medlens did not seek mental anguish damages. They sought recovery for the wrongful destruction of their personal propertynothing more, nothing less. The court of appeals addressed only the issue before it. Thus, its decision is limited to dogs, which have long been recognized as personal property in Texas, and in particular, the Medlens dog. Strickland also argues that special damages are available only where the item in question is irreplaceable. She posits that, in as much as there is a virtually endless supply of dogs, a new one is always readily available, thus, special damages for dogs are always improper. In so doing, Strickland underscores the fallacy of her position. If the property destroyed can be replaced by a similar (but not identical) item, why not simply award
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replacement costs for a great-grandmothers antique wedding veil or an ancestors heirloom photo? A trip to the local antique mall would surely yield a suitable

replacement. Of course, the new veil would not have the identical characteristics of the lost family treasure and the face staring out of the very old photograph would be a stranger, but surely these replacement heirlooms would be almost as good as the originals. But the law does not require that such substitutions be made for the sake of judicial economy and no such result is proper in this case. Here, the Medlens sought redress by suing Strickland, the responsible party. In doing so, the Medlens were then, and still are, simply seeking access to the courts. Strickland, however, appears to presuppose that if a jury is empanelled in this case, floodgates will open, reason and common sense will flee the courtroom, and million dollar verdicts will be awarded in lawsuits for the loss of pet gerbils and goldfish. But the Medlen courts decision is nowhere near as expansive as Strickland would lead this Court to believe. The court of appeals opinion did not grant the Medlens request for intrinsic damages for the loss of their dog; it simply allows them to seek those damages. The dollar amount the Medlens are entitled to recover, if any, lies in the sound discretion of a jury. See Garey Constr. Co., Inc. v. Thompson, 697 S.W.2d 865, 867 (Tex. App.Austin 1985, no pet.) (dollar value for intrinsic loss must be left to the jury); Lucas v. Morrison, 286 S.W.2d 190 (Tex. Civ. App. 1956, no writ) (same). And like other property cases, the jury cannot assess damages where there is no evidence to support them. Dunnagan v. Watson,
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204 S.W.3d 30 (Tex. App.Fort Worth 2006, pet. denied). Stricklands lack of confidence in the jury system is unfounded and provides no legitimate basis to deny the Medlens their day in court. Because Texas law permits owners to seek damages for the destruction of their personal property, the court of appeals did not err in reversing the trial courts order of dismissal. The Medlens thus respectfully request that this Court deny Stricklands petition to create a judicial exception to existing state law.

Issue Three: Did Section 101.106(f) of the Texas Civil Practice and Remedies Code bar the court of appeals from deciding the merits of the Medlens appeal?

Strickland argues that Section 101.106(f) as construed by this Court in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), requires a trial court to sua sponte dismiss a case brought against a state employee in her individual capacity. In doing so, Strickland seeks to impose an affirmative duty on the trial court even though the employee has not filed a motion to dismiss. But Strickland takes this argument further. She would also impose a corollary duty on the appellate courts. She would likewise divest the appellate court of jurisdiction in cases where the trial court could have disposed of the case by filing a motion on behalf of the state employee. Stricklands line of reasoning suggests a judicial

activism that is contrary to the letter and the spirit of the substantive and procedural laws of this State. In this case, Strickland filed special exceptions in the trial court but did not file a motion to dismiss under Section 101.106(f). Such a motion is statutorily required before the trial court can dismiss a suit against a government employee under Section 101.106(f). See generally Antonio v. Bailey, 332 S.W.3d 395, 401 (Tex. 2011) (dismissal under Section 101.106(f) is not automatic; government employee must file a motion before he or she may be dismissed); see also Franka, 332 S.W.3d at 380 (Section 101.106(f) leaves timing of motion to dismiss to the employee); University of Texas Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 551 (Tex. 2011) (Section 101.106(f) lists several prerequisites that must be satisfied before an employee is entitled to dismissal.); Mission Consol. Indep. School Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (employee should seek his own dismissal under subsection (f)). Nothing in this Courts decision in Franka, or any prior or subsequent decisions of this Court, divests the court of appeals of jurisdiction in cases where a state employee could have, but did not, file a proper motion to dismiss. PRAYER For all the reasons stated above, the Medlens respectfully request that this Court deny Stricklands petition for review. In the alternative, the Medlens pray that this Court affirm the court of appeals decision allowing them to seek damages for the wrongful
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destruction of their property, and deny Stricklands request to carve out an exception to that established right.

By:

/s/ Randall E. Turner RANDALL E. TURNER SBN: 20328310 BAILEY & GALYEN 1901 Airport Freeway Bedford, Texas 76021 Tel: 817-359-7065 Fax: 817-764-6336 Email: rturner@galyen.com COUNSEL FOR RESPONDENTS

By: /s/ Sondrea J. King SONDREA J. KING SBN: 24003728 SUSAN BLEIL SBN: 14056720 LAW OFFICE OF BLEIL & KING 5012 Birch Hollow Lane Fort Worth, Texas 76132 Telephone: 817.680.0228

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