In this Texas case, a dog owner brought an action against a Petco groomer for damages when her dog was killed after escaping from the pet groomer and running into traffic. The trial court entered a default judgment in favor of the owner and awarded damages. The Court of Appeals, held that the dog owner was not entitled to damages for mental anguish, absent pet store's ill-will, animus or desire to harm her personally. Moreover, the owner was not entitled to intrinsic value damages, lost wages, or counseling expenses.
FN1. We are thus not addressing the damages recoverable for the loss of such animals as livestock, equines, or wild animals.
Schuster sued Petco for breach of contract, gross negligence, and conversion. Petco did not answer, and Schuster took a default judgment and then offered evidence to support a range of unliquidated damages. Schuster testified that Licorice's *558 replacement value was $500.00, that she had incurred $892.00 to send Licorice to training school and $52.40 for microchip implantation, FN2 and that she had lost $857.68 in wages while missing work to search for Licorice.
FN2. Apparently implanted microchips are used as identifiers, essentially a high tech version of dog tags.
Schuster also testified that she had experienced a total of $645,000 in mental anguish while searching for Licorice and after learning of the dog's death, as well as $160 in counseling costs. Schuster also asked the district court to award $280,000 in damages for “loss of companionship of Licorice.” She additionally requested $1 million in exemplary damages, plus attorneys fees.
The district court awarded Schuster the following damages:
$500.00 as the replacement value of Licorice;
$892.00 as reimbursement costs of putting Licorice through training school;
$52.40 as reimbursement for microchip implantation;
$857.68 as lost wages for Schuster when she was searching for Licorice;
$160.00 as counseling costs;
$10,000 as compensation to Schuster for mental anguish and emotional distress;
$10,000 as compensation for “ ‘intrinsic value’ ” loss of companionship”;
$10,000 as exemplary damages; and
$ 6,750 as attorney's fees (with more allowed for any appeals taken).
The district court thus awarded Schuster the full amount of damages she had requested except reduced amounts for mental anguish, loss of companionship, and exemplary damages. The court expressed skepticism that any damages beyond replacement value for Licorice were properly recoverable. Nonetheless, it awarded $10,000 each for mental anguish, loss of companionship, and exemplary damages. FN3
FN3. The court viewed these amounts as “more appropriate and more in line with anything that might hold up.”
Standard and scope of review
In a restricted appeal, we are limited to considering only the face of the record, but our scope of review is otherwise the same as that in an ordinary appeal; that is, we review the entire case. Norman Communications, 955 S.W.2d at 270; L.P.D. v. R.C., 959 S.W.2d 728, 730 (Tex.App.-Austin 1998, pet. denied). The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the reporter's record. Norman Communications, 955 S.W.2d at 270. Thus, “[i]t necessarily follows that review of the entire case includes review of legal and factual insufficiency claims.” Id. We can thus consider Petco's challenges to the legal and factual sufficiency of the trial court's damage award in this proceeding. This includes not only the amount of damages awarded, but whether Schuster has established the required causal nexus between those damages and the event sued upon, the death of Licorice. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731-32 (Tex.1984); Transport Concepts v. Reeves, 748 S.W.2d 302, 304 (Tex.App.-Dallas 1988, no pet.). We can also consider the related, purely legal issue of whether the various elements of the damage award are recoverable under Texas law. See Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.-Austin 1967, writ ref'd n.r.e.); cf. City of Tyler v. Likes, 962 S.W.2d 489 (Tex.1997) (affirming summary judgment and holding that Texas law does not permit recovery of mental anguish damages arising from loss of property). Because the judgment itemized the damage elements the district court awarded, we can consider each element separately. See, e.g., Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex.App.-Fort Worth 2003, no pet.). FN4
FN4. Schuster urges that Petco has waived its appeal by failing to file a motion for new trial. She relies upon Texas Rule of Civil Procedure 324(b), which provides that “[a] point in a motion for new trial is a prerequisite to the following complaints on appeal ... a complaint on which evidence must be heard such as ... failure to set aside a judgment by default.” Tex.R. Civ. Proc. 324(b). But Petco does not attempt to set aside the default judgment or raise other grounds that would require evidence; instead, it challenges only the legal validity of the damages awarded and the sufficiency of the evidence supporting them. These matters, as explained above, can be determined from the face of the existing record. Moreover, if, as Schuster suggests, Rule 324(b) means that a motion for new trial is required as a prerequisite for all appeals from default judgments, it would preclude all restricted appeals. One of the requirements for bringing a restricted appeal is that the party has not filed a postjudgment motion in the trial court. Tex.R.App. P. 30. We reject such a broad reading of Rule 324(b).
When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We will not substitute our judgment for that of the trier of fact merely because we reach a different conclusion. Id.
Damages for loss of a dog
Analysis of damage issues recoverable for the loss of a dog in Texas begins with Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (1891), a tort action arising from the poisoning deaths of several dogs. The jury, finding that the defendant poisoned the dogs intentionally and maliciously, awarded both actual and exemplary damages. Id. The defendant challenged the sufficiency of the evidence of damages. Id. In addressing this argument, the Texas Supreme Court articulated legal principles governing damages for the death of a dog:
The authorities well settle that dogs are property, and that an owner has his action and remedy against a trespasser for the damages resulting from injuries inflicted upon them. Some authorit[i]es hold that dogs have no market value. This may be relatively true, but it is not a rule that will govern in all cases. It may be difficult, in the majority of cases, to ascertain the market value of a dog, but such a result may, in some cases, be accomplished. The special charge asked by appellant, and given by the court, substantially presents the true rule in determining the value of dogs.[ FN5 ] 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.
FN5. The special charge referenced by the supreme court provided, in relevant part:
In order for the plaintiffs to recover, you must find from the testimony that the defendant poisoned the dogs, and that they were the property of plaintiffs; that the dogs were of some pecuniary value,-either that they had some market value at which they would sell, or that the services or use of the dogs were of some pecuniary value....Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (1891).
Id. at 932. Evaluating the evidence, the court noted that the dogs had been “of a fine breed, and well-trained,” that the owners had taken “great pains” to raise them, and that one of the dogs had even been trained to identify, through distinguishing barks, whether persons who approached were men, women or children. Id. The court concluded that while “[t]here is no *561 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 were of special value to the owner.” Id.
FN6. Nor does Amicus Curiae Animal Legal Defense Fund. While recognizing the status of animals as property, it urges that this classification should not preclude the award of intrinsic value damages reflecting the value of animals as companions. But another Amicus Curiae, Animal Legal Reports Services, urges this Court to classify companion animals as “sentient” property, a status that recognizes the animals' own feelings and emotions.
With these key principles in mind, we turn to Petco's challenges to Schuster's mental anguish, counseling costs, “ ‘intrinsic value’ loss of companionship” and lost wages damages.
FN7. The Zeid court also observed that the Texas Supreme Court had refused to permit bystander recovery for mental anguish in medical malpractice cases involving humans. It rejected any thought of permitting recovery of mental anguish where medical malpractice harms a dog. Zeid v. Pearce, 953 S.W.2d 368, 370 (Tex.App.-El Paso 1997, no writ) (citing Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex.1997)).
White involved the intentional, premeditated shooting of a dog. Id. at 14-15. FN8 By contrast, Schuster asserts at most gross negligence. The Texas Supreme Court, addressing property damage cases generally, held that mental anguish damages are not recoverable for negligent property damage as a matter of law. Likes, 962 S.W.2d at 497. The supreme court explicitly reserved the question of whether mental anguish arising from property damage might be available where a degree of culpability higher than simple negligence is found. Id. But the only Texas court to have subsequently addressed the question concluded that grossly negligent property damage can support a claim for mental anguish only where there is evidence of some ill-will, animus, or desire to harm the plaintiff personally. Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 753-57 (Tex.App.-Houston [14th Dist.] 1998, no pet.). There is no such evidence here.
FN8. This Court once cited Garland for the proposition that “defendant who intentionally and wrongfully shot plaintiff's dog liable for unintended injuries to plaintiff in form of mental pain and suffering and physical damage to his house caused by the shotgun blast” Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 378 (Tex.App.-Austin 1984, writ ref'd n.r.e).
Schuster also relies on a line of cases awarding mental anguish damages when arising from the breach of duties incident to certain “special relationships,” including “a very limited number of contracts dealing with intensely emotional noncommercial subjects” such as preparing a corpse for burial or delivering news of a family emergency. Likes, 962 S.W.2d at 496 (citing Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref'd n.r.e.), and Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351, 353 (1885)). It is unclear whether Schuster views these cases as supporting mental anguish damages under her tort claims or breach of contract claim, or both. Regardless, Schuster does not attempt to explain how or why dog grooming falls within the narrow class of “intensely emotional noncommercial subjects” that could give rise to mental anguish damages. To the contrary, we believe Schuster's claim is governed by the general rule that mental anguish damages are not available for breach of a contract, Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 72 (Tex.1997), and by the traditional limitations of Heiligmann. FN9
FN9. In addition, with regard to Schuster's conversion claim, we note that Texas courts have refused to award mental anguish damages for conversion. Winkle Chevy-Olds-Pontiac v. Condon, 830 S.W.2d 740, 746 (Tex.App.-Corpus Christi 1992, writ dism'd) (mental anguish not recoverable for conversion but may be considered in awarding exemplary damages); First Nat'l Bank of Missouri City v. Gittelman, 788 S.W.2d 165, 169 (Tex.App.-Houston [14th Dist.] 1990, writ denied) (same); but see City of Tyler v. Likes, 962 S.W.2d 489, 498 (Tex.1997) (citing Gittelman for the proposition that mental anguish is not a compensable result of injuries to property interests, but characterizing it as involving “conversion without malice”).
The sole evidence supporting the counseling expenses award was Schuster's own testimony. Her attorney asked her: “[h]ave you been through counseling since the death of Licorice?” She responded that she had and had spent $160 in copayments for the counseling sessions. She provided no testimony regarding reasonableness or necessity; therefore, this testimony is no evidence supporting Schuster's award for counseling costs. See Jackson v. Gutierrez, 77 S.W.3d 898, 902-03 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (in restricted appeal, holding that failure of default judgment plaintiff to present evidence of reasonableness and necessity of medical expenses required reversal of medical expenses award).
“ ‘Intrinsic value’ loss of companionship”
was with me all the time that I was home. We always joked that her name should have been Velcro instead of Licorice because she was right by my leg all the time. We went places together. If I went somewhere where she could go, she went with me.... She was a companion to me and I miss her.
Schuster calculated $280,000 in “loss of companionship” damages based on what she asserted was the average life expectancy of a miniature schnauzer, 14 years, times the amount of annual salary increase, $20,000, she claimed would be required to induce her to accept a job requiring her to part with Licorice.
Although it perhaps resembles her claimed mental anguish or even the “loss of companionship” that is a component of lost human consortium, Schuster conceives her “loss of companionship” damages to be a form of “intrinsic value” property damages. “Intrinsic value” damages are conceptually distinct from personal injury damages. See Zeid, 953 S.W.2d at 369-70 (distinguishing Zeid's mental anguish and pain and suffering claim from special or intrinsic value damages claim in Bueckner ). Texas law permits the recovery of “intrinsic value” as the measure of property damages in certain instances. Porras v. Craig, 675 S.W.2d 503, 506 (Tex.1984) (intrinsic value of felled trees might be recoverable); see also Ives v. Webb, 543 S.W.2d 907, 910 (Tex.Civ.App.-Corpus Christi 1976, no writ) (permitting award of intrinsic value damages in pure breach of contract suit).
Broadly speaking, intrinsic value is an inherent value not established by *564 market forces; it is a personal or sentimental value. Star Houston, Inc. v. Kundak, 843 S.W.2d 294, 298 (Tex.App.-Houston [14th Dist.] 1992, no writ). For example, the intrinsic value of trees is said to be comprised of both an ornamental (aesthetic) value and a utility (shade) value. Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932, 936 (1956).
Schuster relies on Porras v. Craig for the proposition that she can recover the “intrinsic value” of Licorice as a beloved companion. But, again, Heiligmann and its progeny preclude such a recovery. Heiligmann's “true rule” permitted recovery of a dog's “special or pecuniary value” ascertained solely “ by reference to the usefulness and services of the dog. ” Heiligmann, 16 S.W. at 932 (emphasis added). Subsequently, in Young's Bus Lines v. Redmon, which involved the death of a seeing eye dog, the court distinguished between what it termed a dog's “intrinsic or actual value” ( i.e., pecuniary value) which might be recoverable, and the mere “peculiar or sentimental value placed upon the dog by [the owner], or what he considered the dog worth to him,” which the court deemed irrelevant and inadmissible. 43 S.W.2d 266, 267-68 (Tex.Civ.App.-Beaumont 1931, no writ). See also Zeid, 953 S.W.2d at 369 (citing Heiligmann for proposition that recovery for death of a dog “is the dog's market value, if any, or some special or pecuniary value to the owner that may be ascertained by reference to the dog's usefulness or services.”). Heiligmann precludes the award of intrinsic value damages to Schuster, as she relies solely on sentimental considerations.
The Animal Legal Defense Fund presents an amicus brief supporting Schuster by urging that such a limited concept of the intrinsic value of dogs is archaic and fails to take account of the modern view of dogs as beloved friends and companions, a view reflected in Justice Eric Andell's concurrence in Bueckner, 886 S.W.2d at 373 (Andell, J., concurring). One commentator cited in the brief went as far as to suggest Americans today view their pets as more akin to family members than mere property:
In the United States, there is nearly one pet for every two Americans. Further, approximately 124 million dogs and cats live in American households. In one study, forty-five percent of dog owners reported that they take their pets on vacation. Another recent survey revealed that more than half of companion animal owners would prefer a dog or cat to a human if stranded on a desert island. Another poll revealed that fifty percent of pet owners would be ‘very likely’ to risk their lives to save their pets, and another thirty-three percent indicated they would be ‘somewhat likely’ to put their own lives in danger. These statistics indicate that companion animal owners view their pets as family members, rather than personal property.
William C. Root, Man's Best Friend: Property or Family Member? An Examination of the Legal Classification of Companion Animals and its Impact on Damages Recoverable for their Wrongful Death or Injury, 47 Vil. L.Rev. 423, 423 (2002) (footnotes omitted). Indeed, within our jurisdiction, there are myriad examples that Texans today view dogs more as companions, friends, or even something akin to family than as an economic tool or benefit. There are at least thirty dog rescue organizations in the Austin area, FN10 Austin's *565 “Mighty Texas Dog Walk” annually draws thousands of participants, FN11 and even Petco's counsel have publicly acknowledged “the special bond between a pet and its owner” and suggested that “it is the rare person who does not get a little teary-eyed when Old Yeller dies.” FN12
FN10. See www.austinrescue.com/index.html (last visited Apr. 8, 2004).
FN11. See www.servicedogs.org/news/dogwalk2004.htm (last visited Apr. 8, 2004).
FN12. William W. Krueger & Christian Von Wupperfield, The Truth About Cats and Dogs, Texas Lawyer (Feb. 23, 2003), at 27.
FN13. We note that the legislature has previously enacted statutes prescribing criminal penalties for cruelty to animals. Tex. Penal Code Ann. § 42.09 (West 2003).
FN14. Redmon also held that the plaintiff could not recover intrinsic value damages unless he first showed the dog had no market value. Redmon, 43 S.W.2d at 267-68.
FN15. In Williams v. Dodson, 976 S.W.2d 861, 865 (Tex.App.-Austin 1998, no pet.), this Court permitted the recovery of what it termed “intrinsic value” damages for the conversion of a bracelet without first requiring proof regarding market value or replacement value. The Court was applying a measure of damages applicable to marketable chattels held for the use and comfort of their owner. Id. In this context, “intrinsic value” damages refer to the loss of use of the chattel to the owner, excluding fanciful or sentimental considerations. Id. at 864; Crisp v. Security Nat'l Ins. Co., 369 S.W.2d 326, 328-29 (Tex.1963) (“The measure of damages that should be applied ... is the actual worth or values of the articles to the owner for use in the condition they were in at the time of the fire excluding any fanciful or sentimental considerations.”). Schuster does not suggest that she could recover her broader notion of “intrinsic value” damages under this theory.
Lost wages in this case also have too attenuated a connection to Petco's conduct to be recoverable under her breach of contract theory. The supreme court has recently discussed consequential damages in a breach of contract context:
Consequential damages are those damages that ‘result naturally, but not necessarily, from the defendant's wrongful acts.’ They are not recoverable unless the parties contemplated at the time they made the contract that such damages would be a probable result of the breach. Thus, to be recoverable, consequential damages must be foreseeable and directly traceable to the wrongful act and result from it.
Stuart v. Bayless, 964 S.W.2d 920, 921 (Tex.1998) (internal citations omitted). We find Schuster's lost wages damages too remote to be fairly compensable. We reverse Schuster's award for lost wages.
Petco asserts in its third issue that the district court improperly awarded Schuster exemplary damages. As to her tort claim, Petco urges there is no evidence by which any grossly negligent conduct by individual employees can be attributed to Petco. As to Schuster's breach of contract claim, Petco argues that exemplary damages are not recoverable for a breach of contract. We agree. Again, we apply a legal sufficiency standard to the record to determine whether exemplary damages were proper. See Wal-Mart Stores, Inc., 121 S.W.3d at 739.
In order for exemplary damages to have been proper in this case, Schuster would have had to have shown by clear and convincing evidence that the harm that she suffered was caused by fraud or malice on the part of Petco. Tex. Civ. Prac. & Rem.Code Ann. § 41.003 (West 1997). Further, punitive or exemplary damages may be recovered against a corporation only if the grossly negligent act is the very act of the corporation itself. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex.1997). If the act is that of a mere servant or employee, then it must have been previously authorized or subsequently must be approved by the corporation. See id.; Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998) (citing Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994)) (“A corporation is liable for exemplary damages if it authorizes or ratifies an agent's gross negligence or if it is grossly negligent in hiring any unfit agent.”). FN16
FN16. Corporations may also be liable for exemplary damages when a “vice principal” of the corporation commits a grossly negligent act. The supreme court uses the term “vice principal” to describe the kind of employee that may “act for the corporation itself”:
... the term ‘vice principal’ embrac[es][ ] four classes of corporate agents ...:(a) Corporate officers; (b) those who have authority to employ, direct, and discharge servants of the master; (c) those engaged in the performance of nondelegable or absolute duties of the master; and (d) those to whom a master has confided the management of the whole or a department or division of his business....Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 406 (1934), overruled on other grounds by Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex.1987). Schuster does not argue that the Petco employees who lost or searched for her dog were its vice principals.
Schuster also offered internet printouts from various organizations accusing Petco of generally treating the animals it sells inhumanely and that its employees are poorly trained in animal maintenance. This evidence is legally insufficient to show, however, that the Petco employees involved in this case were inadequately trained or that any such deficiency caused Licorice's escape.
As to the breach of contract claim, exemplary damages are not recoverable for a breach of contract, even one breached maliciously, as a matter of law. See Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986). We reverse Schuster's award of exemplary damages.
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997). Not all of the factors must be considered in every case. These are general guidelines that the supreme court has stated should be taken into account when determining the reasonableness of attorney's fees.
The record in the present case shows that Schuster's attorney charged $150 per hour for his legal work and that he worked for 45 legal hours on Schuster's case. Petco asserts that forty-five hours is unreasonable for work prior to a default *568 judgment in a case concerning the death of a dog. We disagree that the fees were unreasonable in this case. The record shows that Schuster's attorney drafted pleadings, prepared motions, spoke with Petco representatives and his client on several occasions, prepared for the default judgment hearing, and performed research regarding the availability of damages for the death of a dog. Although we view Texas law as fairly straightforward on this issue, we note that this subject has been the focus of scholarly analysis and case law development in other jurisdictions and that the Texas Supreme Court has recognized the complexity of Texas law regarding mental anguish damages for the loss of property. See Likes, 962 S.W.2d 489. We overrule Petco's fourth issue.
FN17. Petco did not appeal Schuster's award for replacement value or reimbursement for training and microchip implantation.
We reverse the district court's award for mental anguish damages, counseling costs, “ ‘intrinsic value’ loss of companionship,” lost wages and exemplary damages. We otherwise affirm the district court's judgment.