Opinion
NO. 01-16-00462-CV
03-09-2017
DONALD LAIRD, Appellant v. MONICA BENTON, Appellee
On Appeal from Harris County Civil Court at Law No. 4 Harris County, Texas
Trial Court Case No. 1007020
MEMORANDUM OPINION
Monica Benton sued Donald Laird for negligence to recover veterinary charges she incurred after Laird's dog, which was off leash in a public park, attacked Benton's dog and tore off part of her dog's ear. The jury found Laird liable for negligence and awarded Benton $717.13, the amount she incurred in veterinary charges to repair her dog's ear. In two issues, Laird challenges the trial court's judgment. He contends that the damages award was based on an incorrect measure of damages and that Benton did not offer sufficient damages evidence.
Laird's appeal fails to challenge the legal standard in the jury instructions, which authorized the jury to award damages for the "cost of repairs" to the dog without reference to the diminished value of the dog. Laird also failed to preserve any objection to the jury instructions in the trial court. Accordingly, we affirm.
Background
In 2011, Monica Benton and her family owned a dog, a pure-bred Weimaraner, named Bridger. Bridger was the family's pet and also a trained hunting dog.
Because she worked full-time, Monica hired a dog-walking company to exercise Bridger. On January 6, 2011, an employee of the company, Nicholas Viator, took Bridger to Memorial Park for a walk. Viator would later testify that he had Bridger on a leash the entire time they were at the park.
As they were ending their walk in the park, Viator and Bridger encountered Donald Laird and his two dogs: a 70-pound Boxer and a 106-pound American Bulldog named Minnie. Laird's Boxer was on a leash but Minnie was off leash. Viator asked Laird to put Minnie on a leash, but Laird did not respond. Viator turned to avoid crossing paths with Laird, but Minnie ran toward Bridger and attacked him. During the attack, Minnie bit Bridger on the head and tore off part of Bridger's ear.
Laird would later testify to a different version of what had occurred at the park. Laird admitted that he did not have Minnie on a leash, and he acknowledged that Minnie had run toward Bridger. However, Laird claimed that Minnie was a friendly dog and had run toward Bridger only because she wanted to play with him. Laird claimed that Bridger had then attacked Minnie, biting her on her throat. Laird claimed that Minnie never bit Bridger.
Bridger was taken from the park to his veterinarian. The veterinarian was able to suture the laceration of Bridger's ear but could not reattach the part of the ear that had been torn off. The veterinarian charged $717.13 to treat Bridger's injured ear, and the Bentons paid the bill. Monica Benton sued Laird for negligence, seeking to recover the cost of the veterinary charges.
The case was tried to a jury in May 2016. Benton was represented by counsel in the trial court proceedings, and Laird acted pro se. As mentioned, Viator and Laird testified at trial regarding what had occurred at the park. Viator stated that Minnie had attacked Bridger and tore his ear, and Laird claimed that Bridger had bit Minnie when she ran up to him to play.
This is the second appeal in this case. See Laird v. Benton, 470 S.W.3d 572 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Although it is not reflected in the clerk's record in this appeal, this case originated in small claims court. See id. at 573. Benton recovered against Laird in small claims court, and Laird appealed to county civil court. See id. at 574. The county court dismissed the case for lack of jurisdiction, and Laird appealed to this Court. Id. This Court reversed the trial court's judgment of dismissal and remanded for further proceedings in county court, resulting in the trial involved in this appeal. See id. at 577.
Benton also testified at trial. She stated that her family had adopted Bridger from a shelter, paying a $75 adoption fee. When they had adopted Bridger, Benton had wanted a pet for her two children, and her husband had wanted a hunting dog. They had agreed that Bridger would serve both purposes.
Benton testified that they had Bridger trained to be a hunting dog, paying $2,500 for his training. She testified that, after being trained, Bridger did "amazingly well" as hunting dog and that Bridger had competed in national hunting-dog trials where he did "very well."
Benton also testified that, after the incident at Memorial Park, Bridger was taken to his veterinarian. The vet told Benton that Bridger needed surgery "to sew up the ear." Benton introduced the bill from the veterinary clinic into evidence as an exhibit. The exhibit included an "Affidavit of Necessity of Services and Reasonableness of Charges" signed by the veterinarian. In the affidavit, the vet testified as follows:
On January 6, 2011, I provided services to Monica Benton for the treatment of the injury to her dog, Bridger. Bridger had a severe laceration on his right ear, and I had to use sutures and associated medical treatment to fully repair the ear. Due to the nature of Bridger's injury, the missing portion of the ear could not be reattached.
The veterinarian also averred that the charges "were necessary to treat Bridger's injury" and "were reasonable charges in Harris County, Texas, at the time and place where the services were provided." Attached to the affidavit was an invoice, itemizing the services provided by the veterinarian to treat Bridger and the corresponding charges for those services. The total bill to repair Bridger's ear was $717.13. The invoice indicated a zero balance, and Benton testified that she had paid the $717.13 charge.
During closing argument, Benton asserted that Laird had been negligent because he not practiced responsible pet ownership when he failed to have his dog on a leash in a public park. She asserted, as a result, Bridger was injured, and she incurred veterinary expenses of $717.13.
Laird responded by arguing that his dog had not bitten Bridger. He asserted, "Mr. Viator's word against mine." He claimed that he was not responsible for any damages suffered by Benton.
The jury found that Laird's negligence alone had "caused the occurrence in question." With respect to damages, the jury was asked, "What sum of money, if paid now in cash, would provide fair and reasonable compensate to MONICA BENTON for her damages, if any, for the repairs to her dog resulting from the occurrence in question?" The trial court instructed the jury that, in determining the "cost of repairs," it should "[c]onsider the reasonable cost in Harris County, Texas, to restore the dog to the condition it was in immediately before the occurrence in question." In response, the jury found that Benton was entitled to $717.13 in damages, the amount charged by the veterinarian to treat Bridger's ear.
The trial court rendered judgment on the jury's verdict. Acting pro se, Laird now appeals. He raises two issues, challenging the propriety of damage award in the judgment.
Cost-of-Repair Damages
As the parties acknowledge in their briefs, the Supreme Court of Texas has "recognized pet dogs as 'property in the eyes of the law,' and a 'special form of personal property.'" Lira v. Greater Hous. German Shepherd Dog Rescue, Inc., 488 S.W.3d 300, 304 (Tex. 2016) (citing Strickland v. Medlen, 397 S.W.3d 184, 185, 192 (Tex. 2013)). In two appellate issues, Laird argues that, because Bridger was Benton's personal property, the correct measure of damages in this case was Bridger's lost market value and not cost of repair. He also intimates that Benton did not offer sufficient evidence to warrant cost-of-repair damages because the evidence did not show that Bridger's ear could be repaired.
Citing Hartley v. Schwab, Laird first asserts that cost of repair was an improper measure of damages in this case because it was not "economically feasible" to repair Bridger's ear. 564 S.W.2d 829, 831 (Tex. Civ. App.—Amarillo 1978, writ ref'd n.r.e.) (holding, in auto-accident case, that plaintiff was not entitled to recover $1,087.25 in repair costs when his vehicle was worth $525 before accident and $75 after accident because "a prudent owner would not deem it economically feasible to repair the automobile"; instead, proper damage award was $450, representing automobile's depreciated value). Laird asserts that Bridger was "almost certainly worth less than $100 on the open market, therefore the vet bills over $700 render[ed] it economically infeasible to repair the dog." Laird further asserts that Benton failed to offer sufficient evidence to support loss-of-market value damages, stating she "never proved the value of [her] dog at any time—[she] submitted no evidence on the issue, other than the purchase price [adoption fee] of $75."
As part of his appellate argument, Laird claims that the trial court erred in denying his no-evidence motion for summary judgment and his "Motion to Deny Plaintiffs Claims for Repair to their Personal Property and Gift of Money to a Friend." He argues that the trial court erred in denying these motions because Benton did not offer evidence to support damages for loss of market value and because she was not entitled to recover repair costs "as a matter of law." We note that neither motion is part of the appellate record. More importantly, it is well settled that when a party unsuccessfully moves for summary judgment and then loses in a trial on the merits, the order denying the summary judgment cannot be reviewed on appeal. Reule v. M & T Mortg., 483 S.W.3d 600, 612 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).
Though Laird attempts to argue that the evidence of Benton's $717.13 veterinarian bill was insufficient to establish the legally compensable damage to the dog, we cannot reach the merits of this issue. It is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Laird does not present an appellate argument that the jury was instructed to apply a legally incorrect measure of damages, and no such objection was preserved in the trial court. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (citing TEX. R. CIV. P. 272; TEX. R. CIV. P. 274 ("A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections."); State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); Tribble & Stephens Co. v. Consol. Servs., Inc., 744 S.W.2d 945, 949 (Tex. App.—San Antonio 1987, writ denied) (holding that defendant waived right to complain on appeal that plaintiff offered insufficient evidence of the proper measure of damages because defendant failed to point out to trial court that improper measure of damages was submitted to jury)).
At the charge conference, Laird informed the trial court that he objected to the "cost of repairs question." The only reason he gave for his objection was "the veterinarian said [the ear] could not be repaired." The trial court overruled Laird's objection.
We conclude that the objection did not serve to alert the trial court that Laird believed the jury charge contained an incorrect measure of damages. See Carousel's Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d 385, 404-05 (Tex. App.—Houston [1st Dist.] 2004, pet. dism'd) (explaining that party must "clearly designate the alleged error and specifically explain the basis of its complaint in its objection to the charge"); see also C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 793 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ("To be sufficiently specific, the party's objection must identify the claimed error and explain the basis of the party's complaint."). Laird did not object that cost of repair was an improper measure of damages or that he believed lost market value was the correct measure. Laird did not specifically object that the charge presented an improper measure of damages because it permitted the jury to award Benton damages for cost of repair rather than for lost market value. Nor did Laird object to the damages question on the basis that the cost of repairing Bridger's ear was not economically feasible.
Laird filed "Defendant's Jury Instructions" several days before trial in which Laird requested the jury be instructed (1) "the only measure of award is the difference in the value of the property (a dog) before and after the damage" and (2) Benton "must present evidence of the value of their 6 1/2 year old dog before a piece of its ear was cut off." "Generally, a request for a different instruction is not a substitute for an objection and does not preserve error." Cleveland Reg'l Med. Ctr., L.P. v. Props. Celtic Properties, L.C., 323 S.W.3d 322, 342 (Tex. App.—Beaumont 2010, pet. denied); cf. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 240-41 (Tex. 1992) (holding request can serve as objection for preservation purposes if trial court is made aware of complaint and issues a ruling). Here, there is no indication in the record that Laird brought the requested instructions to the trial court's attention or that the trial court ruled on the request.
During his cross-examination of Benton, Laird hinted at his complaint regarding the economic feasibility of repairing Bridger's ear when he asked, "Since the dogs [sic] are personal property, in the state of Texas, when you paid $75 for the dog, do you feel it's reasonable to sue me for $700 for the first aid to a dog that's only worth $75, or is that an excessive amount?" To which Benton responded, "Well, I would say, Mr. Laird, that the dog was worth a lot more than $75. He was a trained hunting dog, and he was a family companion. And to me he's worth a lot more than $75. So, yes, it is reasonable to pay[.]" However, Laird never followed-up during the charge conference by raising an objection to the damages question on the basis of economic feasibility
The charge error complained of on appeal must comport with the objections made in the trial court. See Hamid v. Lexus, 369 S.W.3d 291, 296 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Because he did not raise his objection regarding the correct measure of damages at the charge conference, we conclude that Laird did not preserve for appeal either his complaint that Benton was permitted to recover under an incorrect measure of damages or his complaint that Benton offered insufficient evidence of what Laird asserted was the proper measure of damages. See Equistar Chems., 240 S.W.3d at 868; see also TEX. R. CIV. P. 272, 274; Tribble & Stephens Co., 744 S.W.2d at 949.
However, Laird's objection to the damages question at the charge conference did preserve what we construe as Laird's complaint on appeal that the cost-of-repair question should not have been submitted to the jury because the evidence showed that Bridger's ear could not be repaired. Laird points out that the piece torn from Bridger's ear could not be reattached.
Under Rule of Civil Procedure 278, the trial court was required to submit the cost-of-repair question to the jury if supported by the pleadings and the evidence. See Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). The cost-of-repair question asked the jury, "What sum of money, if paid now in cash, would provide fair and reasonable compensat[ion] to MONICA BENTON for her damages, if any, for the repairs to her dog resulting from the occurrence in question?" With regard to determining the cost-of-repair damages, the charge instructed the jury as follows: "Consider the reasonable cost in Harris County, Texas, to restore the dog to the condition it was in immediately before the occurrence in question." A review of the record shows that Benton offered evidence to show that Bridger was restored to his previous condition.
As mentioned, in Texas, "pet dogs [are] 'property in the eyes of the law,' and a 'special form of personal property.'" Lira, 488 S.W.3d at 304 (quoting Strickland, 397 S.W.3d at 185, 192). Here, the evidence showed that Bridger's utility, as a "form of personal property," was to be a guard dog, a family pet, and a hunting dog. The evidence further showed that the veterinarian's treatment of Bridger returned him to his full utility. According to Benton, Bridger "did just fine after the attack." She testified that Bridger "went back to being a great dog and a great hunting dog." Benton confirmed that Bridger "could do all of the things after [the veterinary treatment] that he could before." Thus, Benton offered evidence to show that Bridger was "restore[d] to the condition [he] was in immediately before the occurrence." Relevant to Benton's complaint, the evidence supported the submission of the cost-of-repair question. We hold that Laird has not shown the trial court abused its discretion in overruling his objection to the cost-of-repair question or in submitting the question to the jury.
We overrule Laird's first and second issues.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Jennings, Higley, and Massengale.