Petco Animal Supplies, Inc. v. Schuster

• Decision Date: 29 April 2004
• Docket Number: No. 03-03-00354-CV.,03-03-00354-CV.
• Citation: 144 S.W.3d 554
• Parties: PETCO ANIMAL SUPPLIES, INC., Appellant v. Carol SCHUSTER, Appellee.
• Court: Texas Court of Appeals

144 S.W.3d 554

PETCO ANIMAL SUPPLIES, INC., Appellant v. Carol SCHUSTER, Appellee.

No. 03-03-00354-CV.

Court of Appeals of Texas, Austin.

April 29, 2004.

Appeal from the 200th Judicial District Court, Travis County, Darlene Byrne, J Christian J. Von Wupperfeld, William W. Krueger, III, Joanna R. Lippman, Fletcher & Springer, LLP, Austin, for appellant.

Sergei V. Kachura, Law Offices of Sergei V. Kachura, P.C., Austin, for appellee.

Before Justices KIDD, PURYEAR and BOB PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

In this case, we consider the types of damages that Texans may recover for the loss of a pet dog.¹ Appellee, Carol Schuster, sued appellant, Petco Animal Supplies, Inc. (Petco) after her miniature schnauzer, Licorice, was run over by traffic after escaping from a Petco groomer. Schuster took a default judgment, and the trial court awarded damages, including Schuster's replacement costs for Licorice; her out-of-pocket costs for training and microchip implantation; her wages lost while searching for Licorice after the dog escaped; Schuster's mental anguish, emotional distress and counseling costs; "`intrinsic value' loss of companionship"; exemplary damages; and attorneys fees. Petco now brings a restricted appeal challenging the award of several of these damage elements. Because we are bound to adhere to Texas's traditional restrictive view toward damages for the loss of a dog, we will affirm in part and reverse in part.

BACKGROUND

On January 16, 2003, Schuster brought her fourteen-month-old miniature schnauzer, Licorice, to a Petco store in Austin to be groomed. As Schuster was returning to the store to pick up Licorice, she saw the dog running away from the store through the surrounding high-traffic area. Later, Schuster learned that Licorice had slipped her leash and run away from a Petco employee who had taken the dog outside for a bathroom break. Schuster and Petco employees searched for Licorice for four days until, tragically, the dog was found dead, having been run over by traffic.

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 replacement value was $500.00, that she had incurred $892.00 to send Licorice to training school and $52.40 for microchip implantation,² and that she had lost $857.68 in wages while missing work to search for Licorice.

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.³

The judgment was signed on April 29, 2003. Petco did not file a motion for new trial but filed a notice of appeal on June 11, 2003, over 40 days after the judgment was signed. Petco contends only that the damage award is not authorized by law or supported by the evidence. Specifically, Petco urges: (1) Texas law does not support any award for mental anguish and related counseling, loss of companionship, or lost wages for the loss of a dog; (2) there was no evidence of conduct by Petco to support imposition of exemplary damages; (3) the attorney's fee award, which was based upon forty-five hours of work by Schuster's attorney at $150 per hour, was excessive; and (4) the district court erroneously awarded both breach of contract and tort damages for the same injury, the loss of Licorice.

DISCUSSION

Standard and scope of review

Although Petco filed its notice of appeal after the ordinary 30-day deadline for perfecting appeal had expired, it acted within the six-month period for bringing a restricted appeal. Tex. Civ. Prac. & Rem.Code Ann. § 51.013 (West 1997); Tex.R.App. P. 26.1(c), 30. A direct attack on a judgment by restricted appeal must (1) be brought within six months after the trial court signs the judgment; and, additionally, (2) be brought by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment complained of, timely file a postjudgment motion, request for findings of fact and conclusions of law, or a notice of appeal within the normal thirty-day period; and (4) the error complained of must be apparent from the face of the record. Tex.R.App. P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.1997) (per curiam). Schuster does not dispute that Petco satisfied the first three conditions for bringing a restricted appeal. The fourth condition helps define our 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.).⁴

In deciding a legal sufficiency challenge, "we must view the evidence in a light that tends to support the disputed finding and disregard evidence and inferences to the contrary." Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)). A legal sufficiency or "no evidence" point will be sustained when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1996); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d 706, 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995).

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

Petco asserts that the district court could not, as a matter of law, award Schuster damages for mental anguish, counseling costs, "`intrinsic value' loss of companionship," and lost wages. We agree.

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...