Llaven v. People for the Ethical Treatment Animals

• Decision Date: 14 June 2016
• Docket Number: Civil Docket No. CL15-11874
• Citation: Llaven v. People for the Ethical Treatment of Animals, Civil Docket No. CL15-11874 (Va. Cir. Jun 14, 2016)
• Court: Circuit Court of Virginia
• Parties: RE: Wilbur Zarate Llaven, et al. v. People for the Ethical Treatment of Animals

RE: Wilbur Zarate Llaven, et al. v. People for the Ethical Treatment of Animals

Civil Docket No. CL15-11874

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

June 14, 2016

EVERETT A. MARTIN JR. JUDGE

William M. Shewmake, Esq.

LeClairRyan

P. O. Box 2499

Richmond, Virginia 23218

Philip J. Hirschkop, Esq.

Hirschkop & Associates, P.C.

6128 River Drive

Lorton, Virginia 22079

J. Bryan Plumlee, Esq.

Poole, Brooke, Plumlee, P.C.

4705 Columbus Street

Virginia Beach, Virginia 23462

Dear Gentlemen:

The plaintiffs allege that on October 18, 2014, Victoria Carey and Jennifer Wood, "agents and representatives" of People for the Ethical Treatment of Animals ("PETA"), entered onto their property, seized their dog, carried her away, and killed her. The complaint sets out three rights of action: conversion, trespass, and intentional infliction of emotional distress. PETA has filed a demurrer with numerous grounds to each.

Conversion

The plaintiffs seek $2,000,000 in compensatory damages and $5,000,000 in punitive damages for the taking and killing of the dog. The grounds of PETA's demurrer to this count are: first, the complaint does not state the value of the dog; second, the dog was unlicensed; third, the plaintiffs' recovery is limited to the monetary value of the dog; fourth, punitive damages cannot be recovered for conversion of a dog.

The Necessity of Alleging Value

In Pearpoint v. Henry, 2 Wash. (2 Va.) 192 (1796), the Court held that the price of the property converted need not be stated in the declaration. Furthermore, Rule 3:2 (c)(ii) requires every complaint requesting an award of money damages to contain an ad damnum clause. That is sufficient to put the defendant on notice of what is being sought. I overrule the demurrer on this ground.

The Failure to Have a License for the Dog

There are two reasons to overrule this ground of the demurrer. First, the absence of a license is not stated in the complaint but, rather, in a factual narrative PETA includes in its brief. I may not consider this narrative in ruling on the demurrer. Second, the predecessor statutes to Code of Virginia ("Code") § 3.2-6585, about which much more later, originally provided that a dog had to be properly licensed as a condition of being deemed personal property. See Code (1887) § 3711; 1912 Acts of Assembly, p. 499, § 10; Code (1919) § 2324; 1924 Acts of Assembly, p. 255; Code (1930) § 3305(69); former Code (1950) § 29-193. However, by 1966 Acts of Assembly, c. 428, the General Assembly deleted the licensure requirement, so the plaintiffs need not now plead it.

Compensatory Damages are Limited to the Monetary Value of the Dog

The plaintiffs concede that under Code § 3.2-6585 and Kondaurov v. Kerdasha, 271 Va. 646, 629 S.E.2d 181 (2006), they could only recover the value of a dog if the killing had been negligent, but they claim they may also recover harm to feelings as the killing here was intentional. They also contend this issue ought not be resolved on demurrer.

It has been the practice of the judges of this court for many years to resolve certain damages claims on demurrer, e.g., the right of a plaintiff to seek punitive damages for what is ordinary negligence, and a party's right to seek attorney's fees in the absence of statute, contract, or precedent. This is a similar issue; like those it is one of law. The issue is joined, and I see no reason to delay its resolution.

I am aware of no precedent establishing a distinction between the measure of compensatory damages for damage to property from negligence or willful act. The cases the plaintiffs rely on do not establish the distinction.

In Kondaurov, supra, the Court merely noted in footnote 4 that four states allowed a recovery of damages for emotional distress for the willful killing of an animal. It did not state or imply that Virginia was among them. 271 Va. at 657, 629 S.E.2d at 186.

In Perk v. Vector Resources Group, 253 Va. 310, 485 S.E.2d 140 (1997), the plaintiff's motion for judgment contained a claim for conversion of computer programs, databases, and the like. The plaintiff claimed a loss of the value of the items, his efforts in creating them, and future profits. The Court held "whether these items had value to [the plaintiff] aside from his contractual obligations and professional services to [the defendant]" were matters of proof not to be decided on demurrer. 253 Va. at 315, 485 S.E.2d at 143. The Court did not hold the plaintiff could recover emotional damages.

In Sea-Land Service, Inc. v. O'Neal, 224 Va. 343, 297 S.E.2d 647 (1982), an action for breach of contract and fraud, the damages for embarrassment or humiliation were for injury to the plaintiff herself, not to her property.

In Chesapeake & Ohio Ry. Co. v. May, 120 Va. 790, 92 S.E. 801 (1917), the plaintiffs sued for the destruction of their home and other property by a fire caused by a passing train. Thus it was an action for negligence. Among the property destroyed were two family portraits having sentimental value. The court instructed the jury they could not "take into consideration any sentimental value attached to it by the owners or any peculiar value which they may have attached to the property by reason of association or the like." 120 Va. at 797, 92 S.E. at 803. The Supreme Court approved this instruction.

Finally, in Peshine v. Shepperson, 17 Gratt. (58 Va.) 472 (1867), the plaintiff, a merchant, sued the defendants for taking away his goods. He sought damages greater than the value of the goods. As for damages exceeding the value of the goods, the Court discussed both compensatory damages, i.e., the injury of the credit and business standing of a merchant and diminution of his profits, and punitive damages when the wrong is accompanied by circumstances of aggravation. The Court did not endorse an award of emotional damages to the plaintiff.

I sustain the demurrer to the extent the plaintiffs claim compensatory damages for conversion in excess of the value of the dog.

Punitive Damages for Conversion of a Dog

The Supreme Court of Virginia has approved of punitive damages for conversion in at least three cases. Peshine, supra (inventory); Peacock Buick v. Durkin, 221 Va. 1133, 277 S.E.2d 225 (1981) (automobile); Condominium Services, Inc. v. First Owner's Assoc., 281 Va.561, 709 S.E.2d 163 (2011) (money). PETA, however, claims an award of punitive damages for the conversion of a dog is not allowed by either the common law or statute.

The Common Law

In discussing the damages that could be recovered for conversion, Blackstone wrote:

As to the damage that may be offered to things personal, while in the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explication...In both of which suits [trespass vi et armis and trespass on the case] the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained.

3 Commentaries on the Laws of England ("Commentaries") 153-43 (1768). In dicta in two criminal cases involving charges of killing of a dog, the General Court and Supreme Court of Virginia held that an indictment for malicious mischief would not lie, but that the owner had a civil right of action for injuries to the dog. Maclin's Case, 3 Leigh (30 Va.) 809 (1831); Davis v. Commonwealth, 17 Gratt. (58 Va.) 617 (1867). President Moncure wrote in Davis:

It was well settled at common law that while, on the one hand, a dog is such property as that its owner may maintain a civil action for the unlawful conversion, destruction or injury thereof by another person, it is not such property as to be subject of larceny. And this distinction in regard to the nature of this subject has never been altered by statute, but continues still to prevail, notwithstanding the reason for the distinction has long since ceased.

17 Gratt. at 618. In Breedlove v. Hardy, 132 Va. 11, 110 S.E. 358 (1922), the Court affirmed this statement in a civil action seeking the value of two dogs alleged to have been deliberately killed by the defendant to protect his fowl. There was no claim for or mention of punitive damages.

There is a reported circuit court case holding a dog owner's only civil remedy at common law was the recovery of the animal. Layton v. Brown, 6 Va. Law Reg., N.S. 179, 13 Va. Cir. 542 (Stafford County 1920). This is inconsistent with the three decisions cited above. Furthermore, counsel for the parties agreed this was the law so perhaps the judge did not question it.

No other Virginia or English authority has been cited, nor have I found any, that holds the remedy for conversion of a dog differs from that for conversion of other personal property. When Blackstone and other writers refer to an owner's right in his dog to be "qualified or base property," 4 Commentaries 236 (1769); 10 Va. Law Reg. 460-61 (1904), they refer to the lack of any criminal remedy for the theft of or injury to the animal, and a dog's exemption from distress. 3 Commentaries 7¹.

The only English case I have found that gives any guidance on the question is Sandys v. Hodgson, 10 Ad. & E. 472, 113 Eng. Rep. 179 (Q.B. 1839), in which Hodgson brought separate actions for trover of the same dog against Sandys and Dowbiggen. He lost against Sandys. He prevailed against Dowbiggen and received a verdict for £50, a sizeable sum at that time. The verdict was to be reduced to one shilling if Dowbiggen returned the dog by a certain day. Dowbiggen timely returned the dog and paid a shilling, and he claimed the dog on behalf of Sandys. Hodgson refused to turn over the dog, so Sandys filed an action of trover against Hodgson. The verdict was for Sandys, and in affirming the verdict Chief Justice Denman observed:

Hodgson may have entitled himself to recover the dog against Dowbiggen; and it would then be just to enter a verdict for what may

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